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Monday, March 21, 2016

Ind. Decisions - "Gun dealers who sell to criminals can be liable to shooting victims"

The March 17th Court of Appeals opinion in KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels, a 32-page ruling with Judge Riley writing for the 2-judge majority, Judge Brown writing a separate concurring opinion beginning on p. 17 of the ruling, and Judge Altice dissenting, beginning on p. 25, is featured today in Alison Frankel's "On the Case" column, published by Reuters. The column begins:

(Reuters) – An Indiana state law immunizing gun manufacturers and dealers from lawsuits by victims of illegal shootings does not offer blanket protection for defendants that put weapons in the hands of criminals, according to a March 17 opinion by an intermediate state appeals court.

The decision is the first appellate interpretation of a state gun shield law, according to Jonathan Lowy of the Brady Campaign to Prevent Gun Violence, which, along with Arnold & Porter, represents the plaintiff in the case, Indianapolis police officer Dwayne Runnels. Lowy said the Indiana decision, though it is not binding on courts in other jurisdictions, “offers lessons and roadmaps which will help guide other courts to construe these laws narrowly.”

Like many other states and the federal government, Indiana enacted legislation more than a decade ago to restrict litigation by shooting victims. The federal law, known as the Protection of Lawful Commerce in Arms Act, has withstood several constitutional challenges, though, according to Lowy, some courts have construed the law to allow certain claims. Last October, for example, a Wisconsin state court jury awarded more than $5 million to two Wisconsin police officers who blamed a gun shop for supplying a weapon to the man who shot them. The gun shop, which had asserted immunity under the federal law, settled the case for $1 million in December. In another Brady Center case, a Mississippi pawn shop agreed in 2014 to settle with the estate of a Chicago police officer shot with a gun sold at the shop.

Despite such occasional victories for shooting victims, Lowy said, gun industry shield laws are a powerful deterrent against litigation, in part because many of the immunity statutes, including the federal law, have fee-shifting provisions that put victims on the hook for defendants’ costs if their suits fail. As I reported last year, after the dismissal of their case against online ammunitions suppliers was dismissed under Colorado and federal gun shield laws, the parents of a young woman killed in the Aurora, Colorado, movie theater massacre ended up owing the ammo dealers more than $200,000.

The long column concludes:
Runnels sued KE&S for negligence, claiming the gun shop was negligent for enabling Martin’s illegal straw man purchase. * * *

A split three-judge panel agreed, allowing Runnels to proceed with all seven of his negligence, nuisance and corporate veil-piercing claims. Judges Patricia Riley and Elaine Brown held that the unambiguous language of the Indiana law bars claims based on the illegal conduct of the shooter. But Runnels’ case, wrote Riley, “expressly alleges liability based on the harm that KS&E proximately caused Runnels through their own wrongful and unreasonable misuse of a firearm,” so the case survives. (In dissent, Judge Robert Altice said the statute legislature deliberately drafted the statute to shield gun sellers from victims’ claims; whether that is good policy, he said, is a matter for lawmakers, not judges.)

The key message of the majority’s ruling, said Lowy, is when legislatures pass gun shield laws purporting to restrict basic common law rights, “courts are required to narrowly interpret the laws to allow victims their day in court.”

The appellate ruling was an interlocutory appeal so Runnels’ case is far from over. Indiana’s Supreme Court hears cases on a discretionary basis.

The story links to the briefs of both parties.

Posted by Marcia Oddi on March 21, 2016 06:06 PM
Posted to Ind. App.Ct. Decisions