New Decision in a (Very) Old Case: City of Gary v. Smith & Wesson Corp

On November 26, the Indiana Supreme Court denied review in an important case regarding tort liability for gun manufacturers and the Protection for Lawful Commerce in Arms Act (PLCAA): City of Gary v. Smith & Wesson Corp. The latest ruling leaves in place a Court of Appeals decision from last May, which in turn means that the case can finally proceed to trial.  This puts the case in the same procedural status as Remington v. Soto, in which the U.S. Supreme Court denied review two weeks earlier (the Indiana Supreme Court may in fact have been waiting for the SCOTUS decision about Soto before rendering its own ruling).

“Finally proceed to trial” is particularly appropriate for this case, which was originally filed in 1999 – the case itself predates the enactment of the PLCAA, the counterpart Indiana immunity statute, and the Supreme Court’s landmark decision in Heller. Like the pending case in Connecticut between the Sandy Hook victims’ families and Remington-Bushmaster, the City of Gary litigation centers around the seemingly narrow statutory exceptions in the PLCAA and seeks to hold firearm manufacturers liable for the injuries involving their products. (A quick overview of the relevant statutes and leading cases in this area is here.)  The City of Gary litigation could eventually be even more significant than Soto for the future of the PLCAA and gunmaker liability.

First, the lawsuit by the City of Gary lists several of the largest gun manufacturers as defendants – besides Smith & Wesson, defendants include Beretta, Browning, Colt’s, Glock, Hi-Point, Phoenix Arms, Sturm Ruger, and Taurus (and originally, other manufacturers and several local gun dealers, though they are no longer parties), while the Sandy Hook lawsuit targets a narrower range of defendants.  This means that a larger representation of the industry is directly involved in the case.

Second, the case is much older than the Connecticut litigation, and has been through several rounds of dismissals and reversals already, meaning the state courts have already addressed a number of the high-stakes legal questions surrounding this type of litigation that have not yet arisen in Soto, including the applicability of a state preemption law, attorneys’ fees, the Second Amendment, and concerns about separation of powers.

Third, the plaintiff in the Indiana litigation is a municipality, seeking redress for the crime problems it suffers as an externality of the firearm manufacture and distribution system.  If successful, the case could potentially have broader applicability than the Connecticut litigation, as most large urban centers across the United States have suffered the same type of harm as the City of Gary, albeit to varying degrees.  Cases like this reach a broader group of defendants for a broader set of injuries than a lawsuit relating to one specific mass shooting.  The State of Indiana has intervened in the suit in opposition to the municipality, which adds an interesting legal twist (city-versus-state) to the case. And at an earlier stage in the litigation, the United States government also temporarily intervened as a party, in support of the PLCAA’s constitutionality.

Fourth, the theories used by the City of Gary to fit under a statutory exception in the PLCAA might be applicable in a wider range of contexts than the specific consumer protection statute implicated in Soto.  Like Soto, the Indiana case includes a claim about the advertising of guns, but it also includes claims about negligent distribution (like earlier New York litigation that successfully circumvented the PLCAA) and negligent design.

The 20-year procedural history of this case is tortuous but thought-provoking (a helpful quick-glance timeline is included here) – the case has been dismissed three times, but then revived in each instance.  In 1999, the City of Gary, which had a notoriously high rate of violent crimes for a midwestern city, joined what was then a wave of other urban centers around the country in suing the major gun manufacturers for public nuisance and other crime-related injuries.  The gun litigation drew inspiration from the litigation between the states and the tobacco industry in the mid-1990s. After the second time the case was reinstated after a dismissal, in 2001, the Indiana state legislature passed a statute granting tort immunity to gunmakers and dealers – a state precursor to the federal PLCAA, which Congress enacted in 2005.  In 2007, after some more procedural twists, the Indiana Court of Appeals found both the PLCAA and the state immunity statute inapplicable to the case.  The litigation essentially went dormant from 2009 to 2015, when the Indiana state legislature amended its own gunmaker immunity statute to apply retroactively to August 26, 1999, four days before the City filed its.  This prompted the manufacturers to file another motion to dismiss, which the trial court granted in 2018, though it denied the manufacturers’ petition for attorneys’ fees.  The City appealed this fourth dismissal, and the Indiana Court of Appeals reversed the dismissal again, in May 2019.  This is the decision that the Indiana Supreme Court declined to take on Nov. 26.  (For more background, an older press release by plaintiff’s counsel is here and their release about the latest decision is here).