Judge shoots down Cabela’s bid to stymie Delaware probe into thousands of rounds of ammo shoplifted from Christiana Mall store

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Delaware has been locked for 18 months in what Attorney General Kathy Jennings calls a “ridiculous” legal tussle with the Cabela’s outdoor gear company.

The issue has been Cabela’s refusal to comply with a state subpoena for internal records about how Cabela’s has stored, protected and accounted for ammunition at its mammoth store at Christiana Mall.

Jennings argues that security has been lax at the store, leading to rampant shoplifting of ammo that has been sold at cut-rate prices to armed drug gangs.

Jennings wants the info to revitalize her office’s stalled investigation into whether Cabela’s violated criminal and civil statutes by the way it safeguards such a lethal product. Until last year, ammunition was kept on the floor of the 110,000-square-foot showroom.

Attorneys for the chain that bills itself as “the world’s foremost outfitter” have fought in federal and state court to quash the subpoena.

But this week, Delaware Superior Court President Judge Jan. R. Jurden decided that the objections by Cabela’s were either weak or irrelevant, and ordered the company to begin producing records dating back to 2018 that include hundreds of documents, employee names and even videotapes of shoplifting in progress and how the store responded in the moment.

Jennings said she’s grateful that “Cabela’s legal games” didn’t sway Judge Jurden.

“Cabela’s has attempted to thwart this investigation at every turn,” the attorney general said.

“It is ridiculous that we are now well beyond a year into this investigation and yet we still have no meaningful answers from Cabela’s. We look forward to finally being able to investigate how the theft of such a shocking number of lethal ammunition was able to take place.”

Wilmington attorney Francis G. X. Pileggi, lead counsel for Cabela’s, did not respond to a request from WHYY News to discuss the ruling, or say whether the company would appeal to the state Supreme Court.

Shoplifter told detectives she stole 500,000 rounds

The stakes are high for public safety in Delaware and beyond, Jennings says.

Consider what one shoplifter told police in 2022 after state troopers conducting a stakeout at Cabela’s caught her after she walked out with about 2,000 rounds.

The woman told stunned detectives she had stolen an estimated 500,000 rounds of ammo over some two dozen trips there, according to an affidavit a state investigator filed in support of the February 2023 subpoena. The woman also said employees and a supervisor knew her but didn’t “typically confront” her when she left the store without paying for ammo.

She also claimed to have sold the ammo for about one-third of its value — netting more than $100,000 — to Delaware pawn shops and drug dealers in Philadelphia and Dover, the investigator wrote.

The woman’s account dovetailed with what authorities had been hearing for years about Cabela’s since its 2014 opening — it was a prime target for ammunition thieves who funneled the bullets to violent drug organizations, fueling the plague of shootings that have ravaged Wilmington and other parts of Delaware.

While a store supervisor told WHYY News last summer that the woman’s claim of pilfering a half-million rounds was implausible, Jennings’ office decided security was likely lacking at Cabela’s, where hundreds of boxes of bullets were stocked on showroom shelves and tables instead of being stored, even locked, behind a counter.

Their subpoena sought information such as:

• Inventory records for ammunition at the Christiana Mall store, plus documents that can help investigators identify loss rates for ammo.
• Former and current policies on ammunition sales, placement and displays, loss prevention, security, and communications with law enforcement, from the Christiana Mall Cabela’s and other Cabela’s and affiliated Bass Pro Shops stores within 100 miles.
• Video footage of suspected theft of ammunition and response by employees, and documents pertaining to any such footage that was later deleted.
• Communications relating to ammunition that was stolen or unaccounted for, including internal investigations and reports, or outreach to law enforcement.
• Names, addresses, email addresses and phone numbers of all employees involved in security or loss prevention at the Christiana Mall store.
• Personnel records of any loss prevention or security employee who was fired or allowed to resign.
• Requirements for employees to get assigned to the gun and hunting departments.

Judge rejects arguments by Cabela’s lawyers over subpoena

The state is looking for evidence that Cabela’s violated a handful of civil and criminal laws.

One is a 2022 statute that allowed for civil lawsuits against firearms makers and dealers who “knowingly or recklessly create, maintain, or contribute to a public nuisance’’ with a “firearm-related product.” The law also requires dealers such as Cabela’s to “establish reasonable controls’’ on guns and ammo they sell.

The criminal avenues prosecutors are pursuing include reckless endangering, disorderly conduct and criminal nuisance.

In response to the subpoena, Cabela’s took the bullets off the floor and put them behind a counter where handguns, rifles and other firearms are kept.

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

When Jennings’ office sought a court order to enforce the subpoena, Cabela’s challenged the constitutionality of the 2022 civil statute in federal court. But U.S. District Judge Richard G. Andrews ruled that his court had no jurisdiction in the subpoena matter, and sent it back to state court. Andrews also ordered Cabela’s to pay the state’s legal fees and court costs for bringing the matter to the federal court.

Cabela’s, in turn, issued a host of objections to the subpoena, arguing again that the civil statute is unconstitutional, that reckless endangering and other criminal laws don’t 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 hasn’t explained why they are “entitled to each category of document they seek.”

But Judge Jurden, in her 32-page opinion, methodically reviewed and shot down every legal salvo fired by Cabela’s.

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

She also ruled that the state’s requests “are all relevant” to the investigation, and that it was “reasonable” for the state to seek some information from stores within 100 miles to determine if they were following corporate policy and procedures.

Cabela’s also argued that the state wants its “trade secrets without an agreement on confidentiality.” That could allow the state to disclose its findings “to the detriment of Cabela’s business.”

Jurden countered that the retailer hadn’t identified “what it contends are trade secrets versus confidential information,” nor had the state sought trade secrets. Should that become a real issue, the judge wrote, she could address it separately.

Regarding the constitutionality of the 2022 civil law, Jurden ruled that Cabela’s has no standing to challenge it in fighting the subpoena.

While Cabela’s argued that “there is no valid statute under which to launch an investigation or issue the subpoena,” Jurden found otherwise.

“Once again, Cabela’s ignores the fact that the subpoena references several 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 let deadly paraphernalia walk out of stores’

Jennings said her team is eager to kick-start the investigation that has been on hold while Cabela’s has contested the subpoena.

“It’s really important that our office have the ability to look into commercial establishments that leave ammo right out in the middle of a store for anybody to grab and that’s what happened,’’ Jennings told WHYY News.

“Thousands of rounds of ammunition, according to our information, were taken, and Cabela’s refused to put the ammunition where it should be and where it is now, which is behind the counter. And as a consequence the ammunition got in the hands of people who never should have had it in the first place: people who have violent histories.

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

The bottom line, Jennings said, is finding out whether what police and prosecutors have heard is true — that Cabela’s “didn’t take proper safeguards to make sure that the ammunition didn’t get into the hands of violent people who have records, who couldn’t have gotten it legally.”

Traci Murphy, executive director of the Delaware Coalition Against Gun Violence, said the judge’s ruling is yet another victory for the state’s gun safety advocates. Lawmakers in recent years have strengthened Delaware’s gun laws by, among other steps, banning assault-style 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. Sponsored by Rep. Kim Williams, a Newark-area Democrat, the law requires that ammunition be displayed in an enclosed case, behind a counter, or in another place that’s not accessible to a customer without an employee’s help. The civil penalty is $500 for the first violation, $1,000 for the second and $5,000 for subsequent offenses.

“We cannot let deadly weapons and deadly paraphernalia walk out of stores unchecked, and the industry won’t take responsibility for itself,” Murphy said. “What people are stealing is ending up on the underground market and responsible for killing our kids.”