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Wal-Mart, Berkeley County sued in double shooting

August 04, 2004|by CANDICE BOSELY

martinsburg@herald-mail.com

MARTINSBURG, W.Va. - A lawsuit has been filed against Wal-Mart, alleging that store clerks at the Martinsburg store last year wrongfully sold a gun to a man who used it the next day to kill his sister and himself.

Also named in the suit is the Berkeley County Commission, based on allegations that deputies with the Berkeley County Sheriff's Department allowed David Mendez, 23, to keep the gun even after he was acting strangely and was kicked out of a local sporting goods store.

Mendez shot his sister, Alicia Mendez, 20, once in the chest on Nov. 23, 2003, and then shot himself as Jefferson County deputies surrounded him. The shootings happened at 213 Packett Drive in Tuscawilla Hills, an upscale neighborhood outside Charles Town, W.Va.

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Martinsburg attorney Harry Waddell filed the suit on behalf of David and Alicia Mendez's mother, also named Alicia Mendez. It was filed July 12 in the Berkeley County office of the Circuit Clerk.

David Mendez was a diagnosed schizophrenic who was receiving treatment at the Veterans Affairs Medical Center in Martinsburg, according to the lawsuit paperwork.

On Nov. 22, 2003, Mendez went to the Wal-Mart store, where two Martinsburg Wal-Mart employees sold him a Savage .243-caliber rifle despite Mendez "exhibiting bizarre and suspicious behavior demonstrating his mental instability," the suit alleges.

A Wal-Mart employee called Spark's Sports Center, also in Martinsburg, to warn that Mendez was on his way to use the shooting range, the lawsuit said.

Wal-Mart had never before called Spark's to warn that a customer was coming, Waddell said.

When Mendez arrived at the store, the rifle was still in its Wal-Mart box. Customers said Mendez was "speaking and acting in an extremely bizarre manner," records state.

The owner of the store tried to convince Mendez to leave the gun overnight, under the pretense it would be worked on, records state. After Mendez refused, the store owner told an employee to call the police.

A customer and an employee of Spark's forced Mendez into the parking lot, with the employee holding the gun. Two deputies arrived and took the rifle, records state.

When the officers arrived, Mendez told them to "arrest me," and "I've broken the law," records allege.

Mendez allegedly told the deputies he had not been taking his medication, the suit alleges.

"Notwithstanding David Mendez's demonstrated mental instability, the deputies allowed him to leave with the rifle," according to the lawsuit.

"The customers and employees of Spark's were uniformly shocked that the deputies allowed Mendez to leave with the rifle, given his mental condition. The following day (David) Mendez killed Alicia Marie Mendez and himself using the rifle purchased at Wal-Mart," the suit states.

Berkeley County Sheriff Randy Smith defended the actions taken by his deputies.

"We don't do anything other than our jobs. We can't break laws to make laws," Smith said. "You can't violate someone's right to bear arms just because they're not taking their medication."

Deputies evaluated the situation, but had no legal grounds to seize the gun, Smith said. Mendez had not threatened anyone with the gun that day, he said.

Smith also said there was no way officers could predict what Mendez would do the next day.

"Our crystal ball was broken," he said.

Gus Whitcomb, a spokesperson for Wal-Mart in the company's Bentonville, Ark., main office, said he could not comment extensively about the case, but did want to issue a statement.

"We don't believe the lawsuit provides an accurate representation of what occurred. We will work through the appropriate court of law to prove that," Whitcomb said.

Waddell said he believes deputies had the right to seize the weapon and/or request Mendez be the subject of a mental hygiene hearing.

"You don't have the right to keep and bear arms if your mental condition is such that you're a danger to people," Waddell said.

If nothing else, Alicia Mendez hopes the suit changes the way Wal-Mart and police handle similar situations in the future, Waddell said.

A trial date for the case has not been set and Waddell said there is a chance it could be settled out of court.

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