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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. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  2. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  3. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

  4. My dear Smith, I was beginning to fear, from your absense, that some Obrien of the Nanny State had you in Room 101. So glad to see you back and speaking truth to power, old chum.

  5. here is one from Reason magazine. these are not my words, but they are legitimate concerns. http://reason.com/blog/2010/03/03/fearmongering-at-the-splc quote: "The Southern Poverty Law Center, which would paint a box of Wheaties as an extremist threat if it thought that would help it raise funds, has issued a new "intelligence report" announcing that "an astonishing 363 new Patriot groups appeared in 2009, with the totals going from 149 groups (including 42 militias) to 512 (127 of them militias) -- a 244% jump." To illustrate how dangerous these groups are, the Center cites some recent arrests of right-wing figures for planning or carrying out violent attacks. But it doesn't demonstrate that any of the arrestees were a part of the Patriot milieu, and indeed it includes some cases involving racist skinheads, who are another movement entirely. As far as the SPLC is concerned, though, skinheads and Birchers and Glenn Beck fans are all tied together in one big ball of scary. The group delights in finding tenuous ties between the tendencies it tracks, then describing its discoveries in as ominous a tone as possible." --- I wonder if all the republicans that belong to the ISBA would like to know who and why this outfit was called upon to receive such accolades. I remember when they were off calling Trent Lott a bigot too. Preposterous that this man was brought to an overwhelmingly republican state to speak. This is a nakedly partisan institution and it was a seriously bad choice.

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