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Appeals court to hear Gary gun suit

January 1, 2007
A Lake County negligence and public nuisance suit against gun manufacturers and distributors is making its way to the Indiana Court of Appeals for the second time.

On Monday morning, a panel of Judges John Sharpnack, Ezra Friedlander, and Patricia Riley will consider Smith and Wesson Corporation, et al. v. Town of Gary, et al., 45A05-0612-CV-754. The 10 a.m. arguments will be in the Indiana Supreme Court courtroom.

Gary city officials sued in 1999 alleging that handgun manufacturers negligently designed and distributed the weapons and created a public nuisance by failing to take steps to prevent criminals from obtaining and misusing the products. Eleven manufacturers, one wholesaler, and five retailers were named as defendants.

The trial court dismissed the suit but was later reversed by the appellate courts, which remanded it to the trial level in late 2003. A new twist surfaced in 2005 after President George W. Bush signed the federal Protection of Lawful Commerce in Arms Act to prevent firearm-makers and dealers from being held liable for crimes committed with their products.

A different trial judge ruled in October 2006 that the federal law is unconstitutional and denied the dismissal request, holding that the statute would deprive the city of its right of due process and violated the separation of powers.

"Our Supreme Court has long recognized laws that are applied retroactively and ... serve as a deprivation of our existing rights are particularly unsuited to a democracy such as ours," Lake Superior Judge Robert Pete wrote.Now, on appeal, the city argues the federal law is unconstitutional and doesn't provide a basis to dismiss the case, while the U.S. argues as an intervenor that the law is constitutional.
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