Judge Allows Delaware to Continue Investigation into Stolen Cabela’s Ammo

Judge rejects Cabela’s attorneys’ arguments over subpoena

The state is seeking evidence that Cabela’s violated a number of civil and criminal laws.

One of those is a 2022 law that would allow civil suits against gun manufacturers and dealers who “intentionally or recklessly create, maintain, or contribute to a public nuisance” with a “firearms-related product.” The law would also require dealers like Cabela’s to implement “reasonable controls” on the guns and ammunition they sell.

The criminal charges prosecutors are taking include reckless endangerment, public disorder and criminal nuisance.

In response to the summons, Cabela’s removed the bullets from the floor and placed them behind a counter where handguns, rifles and other firearms are also kept.

But the company produced only two documents — “a one-page job description and a heavily redacted one-page report of ‘loss data,’” and later sent the state “53 pages of objections,” Judge Jurden wrote in her ruling.

When Jennings’ office sought an injunction to enforce the subpoena, Cabela’s challenged the constitutionality of the 2022 civil rights act in federal court. But U.S. District Judge Richard G. Andrews ruled that his court lacked jurisdiction in the subpoena case and sent the case back to state court. Andrews also ordered Cabela’s to pay the state’s legal fees and costs for bringing the case in federal court.

Cabela’s, in turn, filed a host of objections to the subpoena, again arguing that the civil code is unconstitutional, that reckless endangerment and other criminal laws do not apply to the company and are “unreasonable” in scope, that the State’s evidence in support of the subpoena is “sensational and implausible,” and that the State has failed to explain why it is “entitled to every category of documents it requests.”

But in her 32-page opinion, Judge Jurden methodically reviewed and rejected each of Cabela’s legal salvos.

She pointed out that the state has broad powers to investigate and use subpoenas to gather evidence for “potential” prosecution, and that no actual charges have yet been filed.

She also ruled that the state’s requests were “all relevant” to the investigation, and that it was “reasonable” for the state to request information from stores within a 100-mile radius to determine whether they were following company policies and procedures.

Cabela’s also argued that the state wants its “trade secrets without a confidentiality agreement,” which could allow the state to make its findings public “to the detriment of Cabela’s.”

Jurden countered that the retailer had failed to specify “what it claims are trade secrets versus confidential information,” and that the state had not asked for trade secrets. If that were to become a real issue, the judge wrote, it could address it separately.

As for the constitutionality of the 2022 Citizenship Act, Jurden ruled that Cabela’s has no interest in challenging the subpoena.

While Cabela’s argued that “there is no valid law under which an investigation may be initiated or a subpoena may be issued,” Jurden ruled otherwise.

“Again, Cabela’s ignores the fact that the subpoena cites multiple statutes … and this is an action to enforce an investigative subpoena, not an action to enforce a statute. The subpoena is enforceable because it is reasonable.”

‘We cannot allow deadly paraphernalia to disappear from stores’

Jennings said her team is eager to resume its investigation, which has been on hold for some time while Cabela’s fought the subpoena.

“It’s really important that our office has the ability to investigate commercial businesses that leave ammunition in the middle of a store for anyone to take. And that’s what happened,” Jennings told WHYY News.

“According to our information, thousands of rounds of ammunition were taken and Cabela’s refused to put the ammunition in the proper place and where it is now, which is behind the counter. And as a result, the ammunition ended up in the hands of people who should never have had it in the first place: people with violent pasts.

“It’s unfortunate that they’re using every tactic they can to delay, delay, delay, but now they have to respond to our subpoena and we’re going to get the information. The first step in finding out what happened is to look at the records of the company in question. But it’s a fact-finding investigation and we’re still in that early stage.”

The crux of the case, Jennings said, is to find out whether what police and prosecutors have heard is true: that Cabela’s “failed to take proper precautions to ensure that the ammunition would not get into the hands of violent people with criminal records who could not have obtained it legally.”

Traci Murphy, executive director of the Delaware Coalition Against Gun Violence, said the judge’s ruling is another victory for gun safety advocates in the state. Lawmakers have tightened Delaware’s gun laws in recent years, including banning assault weapons and requiring a permit to purchase a handgun.

Murphy said a bill that passed overwhelmingly in June was influenced by the shoplifting problem at Cabela’s. The law, sponsored by Rep. Kim Williams, a Newark Democrat, would require ammunition to be displayed in a locked cabinet, behind a counter or in another location that is inaccessible to a customer without the assistance of an employee. The civil penalty is $500 for the first offense, $1,000 for the second and $5,000 for subsequent offenses.

“We cannot allow deadly weapons and deadly paraphernalia to flow out of stores unchecked, and the industry will not take responsibility for itself,” Murphy said. “What people steal ends up in the underground market and is responsible for the deaths of our children.”