Lethal Passage: The Story of a Gun

^{CHAPTER SEVEN} THE PURCHASE

TO BE A GUN DEALER IN America is to occupy a strange and dangerous outpost on the moral frontier. Every storefront gun dealer winds up at some point in his career selling weapons to killers, drug addicts, psychos, and felons; likewise, every storefront dealer can expect to be visited by ATF agents and other lawmen tracking weapons from their use in crime to their origins in the gun-distribution network. One must be a cool customer to stay in business knowing that the products one sells are likely to be used to kill adults and children or to serve as a terrorist tool in countless other robberies, rapes, and violent assaults. Yet gun dealers sell guns in America the way Rite Aid sells toothpaste, denying at every step of the way the true nature of the products they sell and absolving themselves of any and all responsibility for their role in the resulting mayhem. Guns used in crime are commonly thought to have originated in some mythic inner-city black market. Such markets do exist, of course, but they are kept well supplied by the licensed gun-distribution network, where responsibility is defined as whatever the law allows.

And the law, as written, allows much.

Guns Unlimited, of Carrollton, Virginia, demonstrates the kind of position every legitimate gun shop must eventually find itself in. Guns Unlimited considered itself a “good” dealer. Indeed, in the view of Mike Dick, the general manager of the company and the son of its founder, Guns Unlimited was not just a sterling corporate citizen but also a de facto deputy of ATF and a vital bulwark in the fight against crime and civil-rights abuse.

Nonetheless, Guns Unlimited sold Nicholas Elliot a Cobray M-11/9 under circumstances that led, early in 1992, to a jury verdict against the dealer on civil charges that its sale of the gun to Nicholas was negligent. The suit was filed by the husband of the teacher Nicholas killed.

Federal law bars anyone under twenty-one from buying a handgun, but Nicholas acquired his with ease through a “straw-man” purchase three months before the shootings, when he was fifteen years old. Straw-man purchases, in which a qualified buyer buys a handgun for an unqualified person, are the primary means by which America’s bad guys acquire their weapons, and one the Bureau of Alcohol, Tobacco and Firearms cannot hope to put an end to, given the implicit and explicit restraints on its law-enforcement activities.

Nicholas not only knew the gun he wanted, but where to go to buy it. How he knew which dealership to patronize is not clear. Nicholas would not agree to an interview at Virginia’s Southampton Correctional Center, where he is serving a life sentence. It is an easy assumption, however, that Nicholas learned of Guns Unlimited from the dealership’s aggressive advertising efforts, which included TV commercials and giant billboards.

One peaceful weekend in September of 1988, Nicholas Elliot, apparently at loose ends, called his second cousin Curtis Williams, a truck driver, to ask if he would go with him to look at guns in a gun store. The two had talked about guns before. Nicholas proudly told his cousin how he had shot rifles in California with his father. Williams, in turn, told Nicholas about his encounters with weapons in the Marine Corps, which had given him advanced weapons training.

Nicholas had pestered him before about going to look at guns.

“He was calling me all the time,” Williams recalled during his trial in Norfolk federal court on charges of conducting an illegal straw purchase. (Most of what follows is derived from testimony during that trial and from the subsequent civil suit against the dealer, as well as related court documents and interviews.) “We had right many conversations on the phone, but that particular Saturday I was at home stripping my floors, getting ready to take the old wax off and rewax them.”

Williams lived in Norfolk, in a small bungalow with a creaky wooden porch and a front door heavily framed in decorative anti-crime grillwork. His neighborhood, shaded and neat, is known as Shoop Park, where streets are named for famous battles—Somme, Vimy Ridge, Dunkirk, Bapaume, Verdun, and so forth.

When the phone rang, Williams told his wife to tell whoever it was that he was busy—a response he should have held to.

His wife returned. “It’s Nicholas again.”

Nicholas. Everyone called him Nicholas, never the jauntier Nick, a reflection perhaps of his generally serious demeanor.

Williams felt sympathetic. The kid had few, if any, friends and spent most of his time with his birds. The boy was at loose ends. What would it cost to talk to him?

They exchanged greetings, then Nicholas begged him to take him to visit a gun store. Williams had put him off before and now felt guilty about it. He thought it over, again asking himself what harm it could do. It would lighten the boy’s day. He could take him out for a quick trip, maybe to Bob’s Gun Shop. Bob’s was close, an easy shot downtown. They could hop in the car, spend a couple of minutes at the store, and then come back. It would be a nice break from Williams’s work on the floors, and something nice for the boy. Williams could finish the floors when he returned.

When he picked Nicholas up, however, he realized Nicholas had a more elaborate expedition in mind.

“He wanted to go to Guns Unlimited,” Williams testified. “At that particular time I didn’t know where it was, but when he said Carrollton, Virginia, by me being a truck driver, I knew where Carrollton, Virginia, was.”

What it was, was too far. A lot farther than Williams wanted to go. Carrollton was little more than a wide space on Route 17 in Isle of Wight County, a rural wedge of land bordered on the north by the James River and on the east by the Portsmouth-Norfolk metropolitan area. It was a long drive, easily forty-five minutes from Nicholas’s house on Colon Avenue in Campostella. Ninety minutes minimum, back and forth. Extra time at the gun shop. Altogether, Williams suddenly faced an expedition that would take at least two hours.

Williams tried halfheartedly to put Nicholas off: “I don’t have much gas. And besides, I’m broke.”

“I’ll put gas in your car. Here.” Nicholas passed Williams $20.

Again, Williams gave in. “Won’t take twenty dollars to get there. I’ll take ten. About ten dollars will do it.”

They stopped at an Amoco gas station on Wilson Road, not far from Nicholas’s house, then set out for Guns Unlimited, most likely taking Interstate 264 under the southern branch of the Elizabeth River into Portsmouth, then picking up 17 for the rest of the drive. On the way, Nicholas talked about a gun he had come to admire, the Cobray M-11/9 made by S.W. Daniel.

“Man,” he said, “you’ve got to see that; it’s a nice gun.”

The easy, fluid commerce of guns embraced them the moment they entered the shop. An elderly couple browsing in the store approached almost immediately and offered to sell Williams a gun in a private sale. Such transactions escape federal scrutiny altogether. In principle, the owner of a gun cannot sell it to a juvenile or out-of-state resident. In practice, however, federal law doesn’t require the private seller to ask for any kind of identification or even to record the transaction.

“My husband has plenty of guns,” the man’s wife said. “He’ll sell you a gun, if you want to buy one.”

Williams declined.

He and Nicholas approached the display counters.

“Can I help you?” a clerk asked.

“We’re just looking around,” Williams replied.

Williams led Nicholas to a case containing a number of small, low-caliber revolvers and then did ask the clerk for some help. He asked to see a .38-caliber revolver. The clerk opened the case and passed the weapon to Williams, who then showed it to Nicholas. As the clerk watched from just across the counter, Nicholas said he wasn’t interested in seeing that particular gun.

“After that,” Williams testified, “Nicholas started talking, so I thought I’d let him do most of the talking to the gun salesman.”

Nicholas and the clerk, Tony Massengill, a firefighter and former policeman moonlighting as a gun salesman, talked about different types of guns, about muzzle velocities, how powerful one gun was as compared to another.

Williams and Nicholas next looked at a .45-caliber handgun. The clerk, according to Williams’s testimony, pulled the .45 from the counter display and handed it directly to Nicholas. They chatted a bit about the gun. Williams said they discussed “probably how many rounds it shoot and probably how hot it get, you know, after shooting so many rounds, and that kind of stuff.”

This gun didn’t interest Nicholas either, however. “He asked the gun salesman to show him the very next gun, which was a .357 Magnum,” Williams testified.

Once again the clerk, Massengill, handed the weapon to Nicholas, according to Williams: “The gun dealer took it out from under the counter… and handed it to Nicholas, and Nicholas started to inspect that gun.”

This was all, no doubt, great fun for Nicholas, whose passion for his birds was rivaled only by his love of guns. But he knew which gun he wanted.

Williams’s defense attorney, William Taliaferro, Jr., asked whether Nicholas and Massengill talked about the .357 Magnum.

“Yes,” Williams said, “how much more powerful that was versus the .45-caliber. Then after that, [Nicholas] went to the gun that we actually purchased, and he asked the gun salesman… he asked him, would he pull that out.”

The gun Nicholas wanted to see was the Cobray, lying dark and deadly in the cabinet. Again the clerk obliged, pulling out the gun and giving it to Nicholas to inspect.

Nicholas liked it, Williams recalled. “He said he’d read a lot about it. He had books on it and everything.”

Indeed, Nicholas began peppering the clerk with questions about the gun. What was the price? What was the muzzle velocity? How many rounds did the magazine hold? “They got in such a lengthy conversation about that,” Williams recalled, “I just kind of moved away from them a little bit, looking around on my own.”

When Williams returned, Nicholas and the clerk were still discussing the weapon. “I really don’t remember the exact words, but it was, you know, about the nomenclature of the gun, how many rounds it shoot, because it’s got a long clip on it, and I remember Nicholas saying we won’t have to load this so often when we’re in the gun range, and I said, ‘Yeah.’ I remember saying, ‘Yeah, that’s right, right.’”

The pair didn’t buy the Cobray at that point. Nicholas wanted to see more guns. The clerk put the gun back in the case.

Nicholas and Williams moved to the far side of a central display counter and examined more guns there. “I don’t see anything in here that I really want,” Nicholas told Williams. “I’m more interested in the other gun over there.”

The Cobray.

By now, of course, it had become apparent to Williams that this browsing trip had turned into something more. The fact it had become a serious shopping trip, however, did not faze Williams. He knew a lot of people who had bought guns for “juveniles,” he testified. “So I didn’t see anything wrong with it and I didn’t know [of any] law against buying a gun for a juvenile.”

Nicholas reached into his pocket and pulled out a roll containing $300, then passed the money to Williams, so Williams could pay for the gun.

When I visited Guns Unlimited in 1992, it was a small store with a showroom area about as large as a medium-size living room. The store was larger at the time Nicholas and Williams bought the Cobray and configured a bit differently, but still so small it seemed unlikely that Nicholas could have handed Williams the money without Tony Massengill being aware of the exchange.

What Massengill did see became a matter of debate—a debate that Massengill, himself, did little to resolve. He claimed he did not remember the transaction at all, although curiously a co-employee, present in the store at the time of the sale, testified later that he remembered seeing the buyers in the store even though he had not played a role in the sale. This clerk, Christopher Hartwig, also testified that he and Massengill had discussed the purchase after learning of the Atlantic Shores shootings.

Williams testified that when the money changed hands, Massengill was still behind the counter at the place where he had last talked with Nicholas, some eight or nine feet away. “He was still standing there, waiting to wait on us, looking at us.”

Asked if anything blocked the clerk’s view of the transfer, Williams replied no, only the center display table, on which the store had placed a stuffed bobcat. “But that wasn’t obstructing any view. If the gun dealer was looking, he could clearly see Nicholas hand me the money.”

(Raymond Rowley, an ATF special agent assigned to the agency’s Norfolk office, testified that Williams had told him a somewhat different story during a late-night interrogation at Williams’s home following the shootings. Williams had told Rowley that when Nicholas handed over the money, both he and Nicholas had their backs to the glass counter so that, as Rowley put it, “the salesclerk could not see that in fact the money… had come from Nicholas.”)

Nicholas and Williams returned to the counter that contained the Cobray pistol and told Massengill they wanted to buy it.

Massengill passed Williams a copy of federal form 4473.

Everyone who buys a gun from a federally licensed firearms dealer must fill out this two-page form, which among other things asks the would-be purchaser if he is a drug addict, a convicted felon, mentally ill, or an illegal alien; if he has renounced his U.S. citizenship; and whether he has been dishonorably discharged from the armed forces. The form goes nowhere. It is kept in the dealer’s files (provided the dealer in fact keeps such files and keeps them accurately) for later reference should the gun be used in a crime and subsequently traced by ATF. By federal law, the buyer need present only enough identification to prove that he is twenty-one or older and resides in the state in which the dealer is located. (State and local laws may add requirements.)

Williams testified that as he began filling out the form, Massengill told him, “The only thing that will keep you from buying this gun here in this store is you put a yes answer to these questions. Everything should be marked no. If you put a yes up there, that will stop you from getting the gun.”

Nicholas, meanwhile, had taken the gun from the counter and begun inspecting it. He looked at Massengill. “Doesn’t a clip come with this?”

Massengill found the clip and gave it to Nicholas. Nicholas walked out with the gun.

Taliaferro, Williams’s attorney, asked, “Did the salesman ever say anything to you that it was against the law to purchase that gun for Nicholas?”

“No, he didn’t,” Williams said. “Only thing he was interested in was making that sale.”

Massengill, in a deposition during the later civil trial against Guns Unlimited, testified, “I would never sell a gun to an adult that I understood was going to give that gun to a minor.” In an interview late in 1992, he told me, “It would be suicide to do business like that. On a gun like that there’s a profit margin of forty or fifty dollars. Is it worth taking a chance of losing your license to make fifty dollars?”

Once outside the store, Nicholas asked Williams to buy him some bullets. Williams refused. “I told him I wouldn’t buy any bullets because we didn’t need any bullets. I was going back home… to strip my floors, and we didn’t need no bullets until we got actually to the shooting range, and we could buy bullets in the shooting range.”

Acquiring the bullets, however, proved no great challenge for Nicholas. His mother bought them. Nicholas had told her that a friend and his father had invited him to go target shooting at a local shooting range, according to Detective Adams. They would pay all the range fees and supply the guns; all Nicholas had to do was provide the cartridges. The cartridges, Nicholas specified, had to be nine-millimeter. Mrs. Elliot was so concerned that he make friends and have a little fun in his life that she obliged. She had no idea he owned his own gun, or that he had other plans for the bullets.

Immediately after the shootings ATF agents arrested Williams and charged him with making a straw-man purchase. He was promptly tried and served thirteen months in prison. During the trial the federal prosecutor asked him, “What would ever possess someone who’s thirty-six, thirty-seven years old to arrange for a fifteen-year-old young man to get a weapon like that?”

What no federal authority ever bothered to ask, however, is what would possess Guns Unlimited to allow this sale to be made, given the apparent level of Nicholas’s involvement.