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'Landmark' Indiana Court Ruling Says US Gun Industry Can Be Sued


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Move to let Gary gun-violence lawsuit proceed stirs debate

 

Some see landmark case; others call Gary suit unfounded

 

By Jon Murray

jon.murray@indystar.com

 

One by one, local governments have filed lawsuits that try to hold firearms manufacturers responsible for gun violence on city streets.

 

And, one by one, the lawsuits have either been dismissed by courts or dropped. Until last week.

 

In what gun control advocates quickly hailed as a landmark decision, the Indiana Supreme Court ruled last week that a lawsuit filed by the city of Gary can proceed toward trial.

 

That leaves Gary as the last plaintiff standing among more than 30 cities and states that have sued the gun industry over the past decade -- and at the epicenter of a contentious debate.

 

Gary, a city of 96,000 with one of the nation's highest homicide rates, filed its lawsuit in 1999. It argues that gun manufacturers -- including Smith & Wesson, Beretta and Colt -- and several gun dealers are liable for gun violence because they readily supply handguns they know will reach criminals, juveniles and others forbidden from buying them, and cast a "willful blindness" toward a lucrative illegal trade.

 

The defendants vehemently deny any improper conduct.

 

Gun control advocates see the development as long overdue. And the Indiana Supreme Court ruling is a huge moral victory given the string of legal setbacks, including the recent dismissal of lawsuits brought by New York City and the District of Columbia.

 

But if it is ultimately a landmark case, that won't be because it sets an important precedent but because it gives gun-rights advocates another chance to argue their case.

 

Most states -- including Indiana, in 2001 -- have passed laws that protect gun manufacturers from such liability, thwarting future suits. In addition, Congress passed a law in 2005 that also shields the gun industry from liability suits.

 

Industry backers warn that the case would be costly and is without merit.

 

"The city of Gary now stands in the same shoes as Boston stood in and that Cincinnati stood in," said attorney Lawrence G. Keane, who is senior vice president and general counsel for the National Shooting Sports Foundation, an industry trade association.

 

Keane is referring to cities that began deposing witnesses and gathering evidence only to decide to drop their suits, citing the cost of moving forward.

 

"We think it's unfortunate for the taxpayers of Gary that now have to fund a lawsuit that has no merit whatsoever," Keane said.

 

Gary Mayor Rudy Clay did not return a message left with an aide Friday requesting comment. But Brian J. Siebel, an attorney with the Brady Center to Prevent Gun Violence's Legal Action Project and part of the legal team representing Gary, said the city will prove its case.

 

"The case was filed 10 years ago," Siebel said. "The nuisance is ongoing. There is a continued flow of illegal guns into the city."

 

Eleven of 16 original gun-makers and distributors remain in Gary's lawsuit; others have gone out of business or been purchased. At least two of six gun-dealer defendants have reached settlements over the years.

 

And one Lake County judge assigned to the case retired, while another died.

 

Many lawsuits backed by cities or states since New Orleans filed the first in 1998 have been dismissed by state and federal courts, often because of state laws providing immunity for the gun industry.

 

Still more failed after Congress' passage in 2005 of the federal shield law, the Protection of Lawful Commerce in Arms Act.

 

But the Indiana Court of Appeals made an important ruling in October 2007. The court, in a 3-0 decision, said that Gary's case could proceed, despite the federal shield law. The reason: Gary's public nuisance claims fell under an exception because it alleged violations of state laws applying to the sale and marketing of firearms.

 

The gun-makers appealed, but last week, the Indiana Supreme Court in effect rejected that appeal by declining to review the case.

 

That sets the stage for what could be an army of lawyers arguing a complex case with strong emotions on both sides.

 

"Let's face it," said Jerry Wehner, who lives in Rising Sun and is executive vice president of the Indiana State Rifle and Pistol Association. "I think (Gary) was rated Number 2 last year with murders. . . . Now we're going to blame whoever we can blame for it."

 

Others, though, are just as adamant that the gun-makers bear some responsibility.

 

Siebel, the attorney with the Brady Center, believes a victory would send a powerful message that might prompt the gun industry to reform its sales practices and do more to prevent "straw purchases" -- people buying guns intending to sell them to criminals.

 

Still, there is the possibility that the Gary case will never go to trial. The gun-makers could petition for a U.S. Supreme Court review of the Indiana court rulings. Lawrence Greenwald, a Baltimore attorney representing Beretta, said no decision has been made.

 

Also, officials in New York, as well as crime victims in the Washington, D.C., case -- though not D.C. public officials -- have appeal petitions before the Supreme Court.

 

But retired Indiana University law school professor Henry Karlson said the chances of any of the three cases winning Supreme Court review are slight.

 

One factor is the incoming Democratic president and Congress, which could change the 2005 law.

 

"I have a feeling the court may pass this by," Karlson said. "The court might wait and see what Congress does with it."

 

 

 

 

Additional Facts

 

 

Gun industry challenges

 

Of more than 30 lawsuits filed against the gun industry by cities and states since the late 1990s, one pursued by the city of Gary is the sole remaining active case, according to the Brady Center to Prevent Gun Violence. Last week, the Indiana Supreme Court denied gun manufacturers' request to hear an appeal in the Gary case, letting stand a Court of Appeals ruling allowing the lawsuit to proceed. The justices voted 3-1, with a fifth justice voting to wait for U.S. Supreme Court decisions in other cases.

 

Other recent decisions

Appeals courts last year upheld the dismissals of two other cases against the gun industry.

• New York City: The 2nd U.S. Circuit Court of Appeals ruled 2-1 that an exception to the 2005 federal Protection of Lawful Commerce in Arms Act, which shielded the gun industry from most liability lawsuits, didn't apply to New York's claims. The city has filed a petition asking the U.S. Supreme Court to review the ruling.

• District of Columbia: The D.C. Court of Appeals ruled 3-0 that the federal law also barred a suit brought by the District of Columbia and victims of gun crimes. The individual plaintiffs, but not the district, have filed a petition asking the Supreme Court to review the ruling.

 

-- Jon Murray

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Well if they are allowed to sue then I would think the gun manufacturers can sue the state and federal governments for not punishing people to the fullest extent allowed and that sanctuary cities can be sued for allowing convicted felons to stay in their city and not face deportation. If these people would've been prosecuted to the fullest extent possible they would still be in jail or in another country destroying their own community.
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"In what gun control advocates quickly hailed as a landmark decision,
the Indiana Supreme Court ruled
last week that a lawsuit filed by the city of Gary can proceed toward trial.

***

The gun-makers appealed, but last week, the Indiana Supreme Court
in effect
rejected that appeal
by declining to review
the case."

 

 

The only "ruling" by the Indiana Supreme Court was that it wouldn't take the case. Declining to review a decision by a lower court is not the same as confirming its holding. Could be dozens of reasons for the court not to take the case that had nothing to do with the merits. The U.S. S. Ct. turns down thousands of appeals every year. In those cases, would it be accurate to say that the holdings of the lower courts were holdings of the S. Ct.? Of course not. Yet, the article is written to make this decision appear to be from the Ind. Supreme Court. Makes one wonder whether this article was written with more than a bit of "assistance" by the Brady staff.

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"In what gun control advocates quickly hailed as a landmark decision,
the Indiana Supreme Court ruled
last week that a lawsuit filed by the city of Gary can proceed toward trial.

***

The gun-makers appealed, but last week, the Indiana Supreme Court
in effect
rejected that appeal
by declining to review
the case."

 

Has the potential to be a good thing down the road.

 

http://www.scselfservice.org/images/appeal_processed.gif

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