Gary Indiana Gun Manufacturers Suit Continues

Smith and Wesson black and white logo

Smith & Wesson Corp. along with eight other major gun manufacturers, will face claims alleging they should be held liable for illegal handgun sales and gun violence in Gary, Indiana, a state appeals court ruled on May 23. Neither an Indiana statute protecting gunmakers from suit nor its federal counterpart bars the city’s suit, which alleges public nuisance and negligent marketing and distribution claims against the companies, the Indiana Court of Appeals said.

Smith and Wesson black and white logo about gun manufacturers suit

The appeals court, in reinstating the city’s suit, cited in support a recent Connecticut Supreme Court case that allowed victims of the Sandy Hook school shooting to proceed with consumer claims against Remington Arms Co. and others.

The Indiana immunity law, and an amendment making it retroactive to the day before the city of Gary originally filed suit in August 1999, is constitutional, the Indiana appeals court said.

However, some of the city’s allegations satisfy an exception in the law that allows suits for illegal conduct to proceed, the court said.

Some claims can’t proceed, the court said. Claims that don’t allege violations of statutes or ordinances are barred, the court said. That includes claims based on the criminal or unlawful use of guns by third parties; and claims alleging merely negligent, as opposed to unlawful, conduct, including the city’s negligent design count.

The case has been up and down through the Indiana courts at least once before. The ruling here reverses a trial court’s dismissal of all three counts.

The court’s treatment of the Protection of Lawful Commerce in Arms Act was largely bound by a previous Indiana Court of Appeals decision in the same case.

But it also addressed the substance of the law, specifically its exception allowing suits for violation of predicate statutes. The trial court pointed to three federal appeals court decisions that said public nuisance statutes aren’t the type of statute that can serve as a predicate.

But the court here, quoting the Connecticut top court in Soto v. Bushmaster Firearms Int’l, LLC, said Congress easily could have limited the predicate exception to statutes “that are directly, expressly, or exclusively applicable to firearms.”

But it didn’t do so, the Connecticut court said in allowing claims for violation of a general consumer-protection law to proceed in that state.

Further, a prior decision in the city of Gary’s case indicated that the city did in fact allege violations of statutes specific to firearms, meeting the more stringent reading of the PLCAA, the court said here.

Tolbert & Tolbert LLC and the Brady Center to Prevent Gun Violence represented the city of Gary.

Burke Costanza and Carberry LLP and others represented the gunmakers.

The Indiana attorney general’s office represented the state of Indiana, which intervened to defend the retroactivity amendment’s constitutionality.

The case is City of Gary v. Smith & Wesson Corp., 2019 BL 188273, Ind. Ct. App., No. 18A-CT-181, 5/23/19.

Was the court’s decision to reverse the previous court’s dismissal of the suit against gun manufacturers justified or the result of activist judges pushing an anti-gun agenda? Share your answer and analysis in the comment section.

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Comments (14)

  1. Defies logic. Why is this any different than automobile manufacturers? Typical logical thinking of liberals.

  2. I’m waiting for this to pass so I can sue all of the fast food chains for the litter their patrons drop in front of my house. Oh, and also for selling food that will kill you if you eat too much of it.

    This is lawyers making more work-(money) for lawyers. There is no product that can’t be used as a weapon by someone. It would open up every industry to frivolous lawsuits limited only by your imagination.

  3. If this passes, does this mean every Alcohol beverage manufacturer will be held accountable for any drunk driving manslaughter?

  4. Most everybody is missing the point. It’s not ignorance of what product liability is, it’s not ignorance of what the law says, it’s not ignorance of criminal intent vs. legal use. It’s not ignorance of the facts that in places where citizens can’t legally own guns the crooks do. It’s not ignorance of the fact that if guns are hard to get the crooks turn to “knife violence” or even the fact that tough knife purchase laws don’t solve that problem. It’s about nothing more than making sure citizens can’t legally own a gun. It’s about making the government your master.

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