Not Dead Yet

Summary:

Smith and Wesson Corporation, et al v. Town of Gary, et al
Case Number: 45A05-0612-CV-754

Summary:

The City of Gary filed a complaint against a number of manufacturers and distributors of handguns. The City alleged that the manufacturers negligently designed and distributed handguns and created a public nuisance in Gary by failing to take steps to prevent criminals from acquiring and misusing their products. The manufacturers filed a motion to dismiss the City's complaint or for judgment on the pleadings and argued that the Protection of Lawful Commerce in Arms Act ("PLCAA") required dismissal of the case. The trial court found that the PLCAA destroyed the City's cause of action but that the PLCAA was unconstitutional because it: violated the Due Process Clause, constituted an ex post facto law, and violated the separation of powers. On interlocutory appeal, the manufacturers argue that the PLCAA bars the City's lawsuit and that the PLCAA is constitutional. The City argues that the PLCAA does not provide a basis to dismiss this case and that the PLCAA is unconstitutional. The United States of America argues, as an intervenor, that the PLCAA is constitutional.

Click here for source, scroll down to:
"Smith & Wesson Corporation, et al v Town of Gary, et al"

(Note: requires REAL PLAYER to view the video of the arguments. Click here to download the free application, which requires that you close your browser to install.)

This Link (same as above) includes the summary which you see above, and also a (slow loading) one-hour video of the actual hearing in the Indiana Supreme Court. The legal process is fascinating. However, you may not want to spend an hour watching Judge Patricia Riley trash the appellant lawyer (hired by Smith & Wesson, Inc.) ... whose argument is that Congress has passed a law which obviates the original 1999 lawsuit, consequently this suit should be dismissed out of hand ... so I'll cut to the chase.

I was informed about this new ruling via subscription email from The Shooting Wire. Unfortunately, there is no "permalink" to Jim Shepherd's excellent summation, so although I would ordinarily provide a link to the source article, in this single case I (reluctantly) will post the entire contents of this ephemeral article here:

Gary Gun Case Points Out Legislation From The Bench

On Monday, a three-judge panel of the Indiana Appeals Court heard oral arguments in the matter of Gary, Indiana versus the firearms industry (Case #45A05-0612-CV-754). After some very direct questioning, it appears the court might actually allow Gary to go forward with its 1999 lawsuit despite the federal Protection of Lawful Commerce in Arms Act that was approved in 2005, specifically for the purpose of shielding the industry from liability claims involving criminal misuse of firearms which were legally manufactured and operating in the manner in which they were designed.

The judges seemed to be taking the opinion that until a law had been upheld in the courts it really wasn't a law. Or as Judge Patricia Riley put it "How can they be changing the law when it hasn't been decided by the courts?"

Michael Rice, a Dallas attorney representing the firearms industry and Isaac Lidksy, a U.S. Department of Justice attorney, both disagreed with Judge Riley, arguing that Congress had decided the Gary lawsuit - and others like it - posed a "threat and burden on interstate and foreign commerce."

Lidsky also said Lake County, Indiana Judge Robert Pete was wrong last year when he became the first judge to declare the act unconstitutional. As Lidsky rightly stated, the federal government regularly preempts state common law in the case of liability issues. Further, Lidsky said, Pete wrongly asserted the federal law infringed on the duties of state courts.

The Brady Center to Prevent Gun Violence's attorney, arguing in support of Gary, said the industry's argument was based on the "statute they wish the Congress had passed" - contending the federal law only gives immunity to the firearms industry in cases where manufacturers and gun dealers did nothing wrong.

That's an important point in the Gary lawsuit. It alleges the industry - including manufacturers and gun dealers - created a public nuisance by failing to prevent criminals from illegally obtaining and misusing handguns. That questions Indiana's public nuisance statute - and its applicability in this case.

The Indiana Appellate Court judges appeared to be leaning toward, not surprisingly, Indiana state law over the new federal statute. Judge John Sharpnack went so far as to say the courts had yet to decide if the industry facilitated illegal straw-man purchases that "resulted in the city of Gary having to deal with a sea, if you will, of illegal firearms in their community."

To the firearms industry, such a comment may seem laughable, but in this instance, it's no laughing matter. The courts are increasingly inclined to rule on their personal opinions rather than the law - especially when it comes to firearms.

It appears - at least from my time spent watching the proceedings (Indiana's online web video system is a very good idea, incidentally), the judges will most likely allow the suit to proceed. The wildcard in the entire proceeding is Indiana's nuisance statute and the Appellate Court's seeming intent on seeing that law upheld - at least to the point that it, too, was given its day in court.

Long story short - no decision at press time - but it appears the firearms industry, despite a federal law designed to stop baseless lawsuits, will continue to be forced to defend itself against lawsuits that have very little basis in fact, relying on anti-gun hysteria and an increasingly activist judiciary where they have failed to pass anti-handgun legislation when argued on the facts.

The fact of this matter is that, in this matter, facts apparently don't matter.

We'll keep you posted.

--Jim Shepherd

The hearing took place on October 1, 2007. Although I performed an extensive internet search, so far (as of 8:30pm PST, October 3, 2007) I have been unable to find any other source which provides any reference to this hearing.

However, I did find internet sources which expand on the theme and cite background information on the lawsuit, most notably from The Munster, Indiana Times (which is 'almost' real-time, and includes some comments which were obviously written after the results of the hearing were made public ... locally.)

CONSEQUENCES:
Shepherd gave an excellent summary of the short-term consequences of this ruling. "The judges will ... allow the suit to proceed." That means that an Indiana court will hear the arguments from both sides, and decide on the merits of those arguments. If the Plaintiff wins, S&W may be obliged to pony up some significant cash ... you can expect to see this appealed all the way to the Supreme Court, at great expense to the folks whose taxes pay for these pin-head/angel-dancing discussions. My best layman's guess is that the Supreme Court will support Congress, and uphold the PLCAA. Or not, in which case we will see more rounds of "Same Stuff, Different Day."


Judicial Assumptions:
But what if The Supremes don't swing that way? The most interesting quote (so far) comes from Judge Riley: "How can they be changing the law when it hasn't been decided by the courts?"

It's not a question which most of us would have considered. But then, most of us aren't judges in a State Supreme Court, and we aren't confronted with a Federal Fiat.


Legislative vs Judicial Branch:
The context is generally assumed to be that the Legislative Branch of government makes the laws, the Judicial Branch interprets them. Here, a new piece of legislation proposes to short-circuit an existing legal motion by unilaterally declaring that such legal actions are no longer legal. Can they do that? This is the question which judge Riley seems to be asking.


State vs Federal Jurisdiction:
It may be more important that a State court is dealing with a new Federal law, which applies to a pending action at the State level. It may be likened to a question of primogeniture. The pending legal action may, if Riley's question is answered in one way, take precedent over the new law. Who came first -- the chicken or the egg?

This goes beyond the question of what was originally considered a 'frivolous suit', which Congress declared was based upon responsibility for the consequences of the illegal action of a 'gun-owner' (who may not have been in legal possession) with a firearm which was legally sold by the manufacturer.
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If you're confused, you're in good company.

And if I were a betting man (which I'm not), I'd call it six-to-five for the defendant ... the firearms manufacturers. Why? Because it seems to me that the defendant built a safe product and distributed it according to the existing ordinances. Further, the firearms industry is already held to a higher standard than any other manufacturer. This would work if the question was "Product Liability", of course, but the question raised by the court is Indiana's Public Nuisance Statute, and I have no idea how it is written (and I refuse to research THAT can of worms!)

I will reiterate Shepherd's statement:

That's an important point in the Gary lawsuit. It alleges the industry - including manufacturers and gun dealers - created a public nuisance by failing to prevent criminals from illegally obtaining and misusing handguns. That questions Indiana's public nuisance statute - and its applicability in this case.

How a manufacturer can regulate the end-user is completely beyond me, so I find myself in the same legal quandary as you doubtless find, ultimately ... confusing.