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Smith & Wesson, Other Gunmakers Must Face Indiana City’s Suit

May 23, 2019, 10:27 PM

Smith & Wesson Corp. and eight other major gunmakers must face claims alleging they should be held liable for illegal handgun sales and gun violence in Gary, Indiana, a state appeals court held 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.

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, are constitutional, the Indiana appeals court said.

But 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.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com