District Court sends stolen ammo investigation back to Superior Court, awards DOJ legal fees

A U.S. District Court Judge has rejected an attempt by Cabela’s Inc. to hinder the Delaware Attorney General’s investigation into reports of 500,000 rounds of ammunition shoplifted from the retailer’s Christiana location. 

Attorney General Kathy Jennings announced last summer that she was asking the Delaware Superior Court to enforce a subpoena against Cabela’s seeking information about ammunition shoplifted from its Christiana location. Investigators believe that at least 500,000 rounds of ammunition were stolen from Cabela’s in less than a year — and that a substantial portion of it was sold to violent criminals and drug dealers in Delaware and Pennsylvania.  

“I’m grateful to the Court for its ruling and glad that Cabela’s legal games continue to be unsuccessful,” said Attorney General Jennings.  “Almost a year into this investigation, Cabela’s is still evading basic questions and trying to hide the truth. Every round of ammunition that walked out of that store is capable of ending a life, and Cabela’s apparently casual attitude about that fact raises serious questions about just how pervasive their issues were. Gun dealers need to take reasonable steps to prevent gun violence — we are still waiting for evidence that Cabela’s did. We’re looking forward to stating our case in Superior Court.”  

The DOJ is investigating whether Cabela’s has violated various laws, including Delaware’s firearms industry public nuisance law, through its hands-off approach to the shoplifting of ammunition from its Christiana location. The investigation began over reports that substantial amounts of ammunition were being stolen from Cabela’s, which at the time stored ammunition unsecured in the middle of the sales floor and made no apparent effort to stop massive shoplifting. After the DOJ sent Cabela’s a subpoena, the company relocated ammunition in the Christiana store to behind a sales counter. Cabela’s failed to produce any meaningful answer to the State’s questions, and instead attempted, unsuccessfully, to remove the case to a federal court in order to delay and ultimately block the investigation. 

In his order remanding the case back to Superior Court, Judge Richard G. Andrews of the U.S. District Court for the District of Delaware wrote that Cabela’s and other Respondents “do not describe any issue of federal law Plaintiff must win to prove any element necessary to the enforcement of the subpoena.” Judge Andrews goes on to award legal fees to the State, writing that Cabela’s “lacked an objectively reasonable basis for removal. None of Respondents’ arguments come close to meeting Grable,” referring to a legal test that courts use to determine federal jurisdiction in a case. “It should have been obvious that the [Protection of Lawful Commerce in Arms Act] does not apply to this case as there is no qualified civil liability action. It is clear the Fourth Amendment argument would be a federal defense and not the basis of federal jurisdiction. There was no basis to remove the case. I therefore grant the State’s request for reasonable costs and fees.” 

DOJ’s investigation explores potential violations of several laws, including but not limited to the Keshall “KeKe” Anderson Safe Firearms Sales Act. The Act, passed into law in 2022, is named for KeKe Anderson, an innocent bystander who was killed in a 2016 shooting involving a firearm bought through a straw purchase at Cabela’s. The bill repeals special immunity granted to gun dealers like Cabela’s under state law, making Delaware the first state in the country to repeal a gun industry liability shield. 

A recent ATF report lists Newark, where Cabela’s is located, as the leading source city by far for crime guns recovered in Delaware. From 2017-2021, more than 40% of crime gun tracebacks — over 1,000 guns in all — returned to gun dealers located in Newark. As of December 2021, only 17 of Delaware’s 152 gun dealer licenses, two of which belong to Cabela’s, were located in Newark. 

The Office of Impact Litigation, created by AG Jennings in 2019, is part of the DOJ’s Fraud and Consumer Protection Division and directs or participates in a number high-profile legal battles, including the DOJ’s lawsuits against Big Pharma and Big Oil, efforts to stop the City of Seaford from enacting an anti-choice ordinance, and a number of multistate matters. 

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