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Monday, October 30, 2006

Ind. Decisions - "Gary's gun lawsuit dodges a bullet"

"Gary's gun lawsuit dodges a bullet: Lawsuit is one of three remaining nationwide" was the headline Saturday, Oct. 28, to a comprehensive story in the Gary Post-Tribune by Andy Grimm reporting on a ruling by Lake Superior Court Civil Division 5 Judge Robert Pete:

The city's lawsuit against gun makers and local dealers received a boost this week when a Lake County judge ruled a year-old federal law shielding gun makers from lawsuits is unconstitutional.

In a strongly worded opinion, Lake Superior Court Judge Robert A. Pete denied gun makers' request to dismiss the lawsuit filed by Gary seven years ago that alleges gun makers do little to control the flow of handguns used in crimes.

The federal Protection of Lawful Commerce in Arms Act, passed last year with backing from the gun industry in response to a wave of lawsuits similar to Gary's case, would deprive the city of its rights of due process, Pete said.

"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," Pete wrote.

Though gun makers are almost certain to appeal, city attorney Tony Walker said Pete's ruling should allow the city to begin requesting internal documents and records from the 16 gun makers named in the suit.

"We are moving into an aggressive litigation standpoint," said Walker, who is working on the case with help from the Washington, D.C.-based Brady Center.

"We want to start deposing (gun company) executives and getting to the heart of how guns get onto the streets of Gary."

Gary's lawsuit is one of three remaining cases filed by U.S. cities against gun manufacturers, most of them filed in the late 1990s with the help of Brady Center attorneys. About a dozen cases have been dismissed since the federal shield law was passed a year ago, said attorney James Dorr, who represents Connecticut gun maker Sturm Ruger Co.

"With all due respect to Judge Pete, we think (the ruling) is an error," Dorr said. "Every other court to consider the constitutionality of this act has considered it constitutional."

Gary's suit already has survived challenges that have carried the case all the way to the state Supreme Court, and state legislation that gave immunity to gun dealers.

Gary was one of more than 20 cities that filed lawsuits against gun makers and dealers during the late 1990s. Gary and four other cities still have cases pending before the courts, while the rest were dropped or dismissed because of state or federal immunity laws adopted after they were filed.

The case rises out a series of sting operations carried out by Gary police during the 1990s, where undercover officers made "straw" purchases of handguns at eight local gun dealers. Hidden cameras recorded the vendors sold guns to the officers who said they were buying the guns to resell them on the street.

From 1996 to 2000, trace data compiled by the Americans for Gun Safety Foundation showed that the eight local dealers named in the suit sold 3,482 guns that were used in crimes.

Westforth Sports in Gary sold nearly 700 crime guns during the period, ranking it among the top 20 sellers of crime guns in the country.

"The gun makers, and certainly the dealers, are aware of the numbers," said Brian Siebel, an attorney for the Brady Center.

"Alarm bells should have been going off, and while this case has been pending, they still have done nothing to keep from funneling guns into the hands of criminals."

Although the Post-Tribune story appeared Saturday, the decision apparently was issued Tuesday, Oct. 24th and the story has not been picked up in any other papers. The ILB has located three press releases on the ruling, from the Brady Campaign to Prevent Gun Violence on Oct. 25th and Oct. 26th, and from the National Shooting Sports Foundation (NSSF) on Oct. 26th. Here is the Oct. 26th Brady release:
WASHINGTON, Oct. 26 /U.S. Newswire/ -- In a landmark ruling with nationwide implications, Lake County, Indiana Superior Court Judge Robert A. Pete on Monday declared unconstitutional a 2005 federal law backed by the gun lobby that sought to limit the legal liability of gun dealers and manufacturers in the case of City of Gary v. Smith & Wesson et al.

The ruling held that the so-called "Protection of Lawful Commerce in Arms Act" (which became effective exactly one year ago today) violates the U.S. Constitution's guarantees of Due Process and Separation of Powers. It allows Gary, Indiana's lawsuit against sixteen gun manufacturers and six northern Indiana gun dealers to proceed toward trial. Cases pending in New York, Massachusetts, Pennsylvania, Washington, D.C., and other states have raised similar challenges to the constitutionality of the law, but this is the first court to find it unconstitutional. Lawyers from the Brady Center's Legal Action Project represent Gary in the case.

The court held that the law "is clearly an act which was passed in response to pressure from the gun industry." The court ruled that "laws that serve as a deprivation of existing rights are particularly unsuited to a democracy such as ours."

The case, originally filed in August 1999, was based on a sting conducted by Gary police of northern Indiana gun dealers that, between them, supplied more than 60 percent of the crime guns recovered in Gary. The dealers' sales to undercover officers posing as "straw purchasers" were captured on videotape before the suit was filed, and confirmed the dealers' gross misconduct in supplying the underground market. Gary also sued the major gun manufacturers who sold handguns through these dealerships and profited from the diversion of guns to criminals.

"This is an important victory not only for the citizens of Gary and the people of Indiana but for the entire country. This is a significant and proper ruling on this legislation, which the Brady Center has been arguing is unconstitutional since it was enacted a year ago," said Paul Helmke, President of the Brady Center, and former Mayor of Fort Wayne, Indiana. "The gun pushers used their influence in Congress to change the rules, because they fear accountability for their practices. Now, those moves have been declared unconstitutional."

Tony Walker, of the Walker Law Group in Indiana, and Robert S. Peck of the Center for Constitutional Litigation, serve as co-counsel with the Brady Center in the case.

In December 2003, the Indiana Supreme Court ruled unanimously that Gary's allegations that "(1) dealers engage in illegal sales, and (2) the distributors and manufacturers know of their practice and have it within their power to curtail them but do not do so for profit reasons ... state a 1/8public nuisance 3/8 claim" under Indiana law, and sent the case back to the trial court. However, after President Bush signed the gun industry- backed shield law in October 2005, the gun manufacturer defendants in the Gary case filed a new motion to dismiss.

This is the fourth case brought by the Brady Center in which courts have ruled that the suits can proceed despite the new legal shield law. For example, in December of last year a Federal judge in New York allowed New York City's similar lawsuit against the gun industry to proceed. It is the first case, however, in which the new statute has been found to violate the U.S. Constitution.

Federal data shows that about one percent of the nation's gun dealers supply 57 percent of the guns traced to crime.

Indiana Daily Insight has had two reports on the ruling.

Here is a list of links to some of the earlier ILB entries on the Gary gun suit, dating back to 2004. This entry from Feb. 12, 2004 goes back even further, linking to 2003 entries.

Can you help? This is an important trial court decision that has not had much attention to date. The ILB would very much like to post Judge Pete's decision -- if you can help please let me know.

Posted by Marcia Oddi on October 30, 2006 07:19 PM
Posted to Ind. Trial Ct. Decisions