ILNews

Court rules on gun manufacturer suit

Jennifer Nelson
January 1, 2007
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The Court of Appeals upheld a trial court's decision to deny handgun manufacturers' motion to dismiss a public nuisance suit brought by the city of Gary. The court determined Indiana's public nuisance statute is applicable to the sale or marketing of firearms for purposes of the Protection of Lawful Commerce in Arms Act.

At issue in Smith & Wesson Corp. et al. & United States of America v. City of Gary, Indiana by its mayor, Rudy Clay, 45A05-0612-CV-754, was whether the PLCAA, 15 U.S.C. 7901-7903, barred Gary's nuisance claims against the manufacturers.

Gary had filed a suit against handgun manufacturers, one wholesaler, and retailers alleging the defendants knowingly sold guns to illegal buyers through intermediaries in "straw purchases," which is selling a gun knowing that the buyer will give the gun to someone who is not legally allowed to purchase one.

Gary first brought the suit in September 1999, and the Indiana Supreme Court held the city could proceed on its negligence and negligent design claims and reversed the trial court's dismissal of the city's public nuisance charge against the manufacturers, determining manufacturers should be included in the claim.

In 2005, Congress passed the PLCAA, which was created to protect handgun manufacturers, distributors, dealers, and importers from lawsuits because of handgun misuse or criminal activity. PLCAA included a "predicate exception," that said a "qualified civil liability action" would not include "any action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal Statue applicable to the sale or marketing of the product ... ." 15 U.S.C. 7903(5)(A)(iii).

The manufacturers moved to dismiss the city's complaint, citing PLCAA. The trial court denied the motion because it found PLCAA to be unconstitutional and implied the act was applicable to the city's claims. The manufacturers appealed, arguing the predicate exception doesn't apply to the city's public nuisance claim.

The Court of Appeals determined Indiana's public nuisance statute, as applied by the Indiana Supreme Court to the alleged conduct of the manufacturers, is applicable to the sale or marketing of firearms for purposes of the PLCAA. Judge John Sharpnack wrote in the opinion the word "applicable" is unambiguous in the predicate exception and on the face of the language, Indiana's public nuisance statute appears applicable.

PLCAA was designed to protect manufacturers engaged in lawful sales of handguns, but the city alleges the manufactures were knowingly participating in unlawful sales of handguns to illegal buyers, so the predicate exception would not apply, wrote Judge Sharpnack.
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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

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