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Gary’s gun lawsuit gets revived with COA ruling

June 12, 2019

Nearly 20 years after it was originally filed, the city of Gary’s lawsuit against firearm manufacturers and dealers is again moving forward after being revived for a third time on appeal.

The lawsuit, which seeks damages for an alleged illegal flood of guns flowing in the northwest Indiana city, has survived two attempts by the Indiana General Assembly to derail the legal action and numerous rulings by the state trial court dismissing the case. Most recently, the Indiana Court of Appeals in May reversed the Lake Superior Court, finding the state’s immunity statute did not protect the defendants against unlawful activity.

freeman-wilson-karen-mug Freeman-Wilson

Gary Mayor Karen Freeman-Wilson noted the issue of guns is multifaceted, and the responsibility for preventing violence falls to many groups. Individuals, police and community groups have to shoulder some of the work, but the firearm industry must also take an active role in stopping straw purchases and sales to corrupt dealers.

“In time, people have taken the approach that guns don’t kill people, people do, but that lets two powerful groups off the hook — manufacturers and bad-apple gun dealers,” Freeman-Wilson said. “There is enough responsibility to go around.”

The lawsuit was originally filed in August 1999 and, according to court documents, was very similar to lawsuits filed in 30 cities and counties across the country. Yet while all the other complaints have been dismissed either voluntarily or by the courts, Gary’s case is still standing.

However, the progression of the lawsuit through the state courts has been laborious and at times, it appears to have stalled completely. In fact, legislators seized on the inaction as a key reason for amending state law in 2015 to do away with the case.

Freeman-Wilson explained that as the legal action has been carried through three administrations, budget concerns exasperated by the state’s property tax caps diverted attention from the gun lawsuit. She acknowledged that when a case continues for so long, people lose their sensitivity to the central issue, but she is now hopeful that with the ruling from the Court of Appeals, the case can proceed to discovery.

The appellate court’s decision in City of Gary v. Smith & Wesson Corp., et al., 18A-CT-181, was unanimous, finding not only that the city’s claims were not barred by the state’s immunity statute, but reaffirming that the claims were not prohibited under the federal Protection of Lawful Commerce in Arms Act. Judge Terry Crone wrote the 33-page opinion that cited heavily to precedent.

Defendants do have the option of filing a petition for a rehearing or appealing to the Indiana Supreme Court. Nothing had been filed as of IL deadline.

Attorneys representing the firearms makers and dealers — Terence Austgen, of counsel at Burke Costanza & Carberry in Merrillville, and James Vogts, partner at Swanson, Martin & Bell, LLP in Chicago — declined to comment. Also, of the attorneys representing Gary, Michael Tolbert of Tolbert & Tolbert in Gary could not comment, and Jonathan E. Lowy, chief counsel and vice president of the Legal Action Project at the Brady Center to Prevent Gun Violence, did not return a phone call.

Lawful and unlawful actions

In testifying before a Statehouse committee during the 2015 General Assembly session, Freeman-Wilson told the legislators she felt like David going against Goliath. The lawmakers were considering Senate Bill 98, which expanded Indiana’s firearm immunity statute to include lawsuits filed on or before Aug. 27, 1999, three days before Gary lodged its complaint with the courts.

The bill, authored by Sen. Jim Tomes, R-Wadesville, and now-retired Sen. Brent Steele, R-Bedford, amended the original immunity law passed in 2001. According to the brief of the intervenor, filed by the Indiana Attorney General Curtis Hill, the passage of the immunity statute was a response to the growing litigation that was attempting to regulate the firearms industry through the courts.

However, the 2001 law applied prospectively. The Indiana Supreme Court reversed the lower courts, holding Gary could proceed on both its public nuisance and negligence claims against the defendants.

In 2015, the opposition was unable to halt the progress of the amendment through the Legislature. Lawmakers touted the gun companies would consider Indiana for manufacturing operations if the Gary lawsuit was erased.

A few months after the 2015 amendment became effective, the defendants filed another motion to dismiss. They were successful in the trial court, but the Court of Appeals looked at the 2001 language of Indiana Code section 34-12-3-3(1) and found the immunity extended only to “lawful design, manufacture, marketing or sales.”

unlawful-timeline.pngThe unanimous appellate panel noted the statute does not bar a complaint seeking recovery of damages because of unlawful actions. “The City’s amended complaint sufficiently alleges that the City is suing the Manufacturers for their role in the alleged violation of laws governing handgun sales, for which the City may be entitled to damages, injunctive relief or abatement of a nuisance,” Crone wrote for the court.

In its brief filed with the Court of Appeals, the gun makers argued Gary was trying to circumvent the immunity protections by alleging the defendant’s legal manufacturing and sale of firearms was negligent and therefore unlawful.

“It would be an absurd construction to conclude that the General Assembly, while intending to protect firearm manufacturers from litigation, left the door open in Subsection 3(1) to a claim that a manufacturer’s legal conduct was negligent,” the defendants argued.

The city alleged in its brief that the manufacturers are engaging in unlawful conduct by choosing not to use reasonable sales practices that would prevent the supply of guns to criminals. “Through this calculated strategy of willful blindness, defendants exploit, rely upon, and help maintain an active illegitimate secondary market in handguns that is reasonably foreseeable by defendants,” Gary asserted.

Changing behavior

Rep. Vernon Smith, D-Gary, told his colleagues in the House that gun sales in Gary impact far more than that single city.

Indeed, the 2017 Gun Trace Report by the Chicago Police Department identified two Indiana federally licensed firearms dealers among the top five suppliers of guns into the Windy City. From 2013 to 2016, Westforth Sports in Gary was the third largest supplier of crime guns into Chicago, while Cabela’s in Hammond was the fourth largest source dealer for crime guns.

Also, Freeman-Wilson added the issue of gun violence is increasing around the United States. It is no longer confined to places such as Gary and Chicago, but the problem is now being seen in cities considered to be prospering, such as Indianapolis and Louisville, Kentucky.

Freeman-Wilson maintained that holding gun makers and dealers responsible for unlawful conduct does not encroach on the Second Amendment, comparing that responsibility to telling liquor stores they cannot sell to minors. Putting a price on the human lives lost to firearms is impossible, she said, but through the lawsuit, the city is hoping to change behavior and raise awareness of how Gary has been “disproportionately impacted by gun violence.”•

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