Gary Gun case dismissed...is this finally it?

[HoughMade]

How I missed this, I don't know, but on January 8th, in Lake Superior Court Civil Division Room 1, the Gary Gun Case has finally been dismissed. the pertinent part of the decision is this:

ORDER…

…I.C. 34-12-3-3 provides as follows:
Except as provided in section 5(1) or 5(2) [IC 34-12-3-5(1) or IC 34-12-3-5(2)] of this chapter, a person may not bring or maintain an action against a firearms or ammunition manufacturer, trade association, or seller for:

(1) recovery of damages resulting from, or injunctive relief or abatement of a nuisance relating to, the lawful:
(A) design;
(B) manufacture;
(C) marketing; or
(D) sale;
of a firearm or ammunition for a firearm; or
(2) recovery of damages resulting from the criminal or unlawful misuse of a firearm or ammunition for a firearm by a third party.

The core issue presented is whether Section 34-12-3-3(2) immunizes firearms manufacturers from an indirect civil action by a municipality for damages resulting from, or injunctive relief or abatement of a nuisance relating to, the lawful design, manufacture, marketing or sale of a firearm or ammunition for a firearm.

The Indiana Supreme Court, in KS&E Sports, id., held: ...[T]he statute functions as an immunity provision. Section 34-12-3-3(2) does more than insulate a firearms seller from liability. It forecloses aggrieved plaintiffs from bringing suit. The statute does not mince words. If a plaintiff files a "groundless" action— i.e., one that violates the statutory ban—"the court shall dismiss the claims or action and award to the defendant any reasonable attorney's fee and costs incurred in defending the claims or action." I.C. § 34-12-3-4 (2008 Repl.) (emphasis added).

Taken together, these provisions prescribe an immunity from suit. When a statute enjoins aggrieved persons from bringing suit under specified circumstances, mandates dismissal if the grievant brings suit anyway, and subjects the grievant to paying the defendant's fees and costs for non-compliance, the statute is tantamount to a grant of immunity. W e share Judge Altice's view that Indiana Code chapter 34- 12-3 is "a quintessential immunity provision," 73 N.E.3d at 900.
KS&E Sports, id. also held that I.C. 34-12-3-3 was not pre-empted by federal law, and was not unconstitutional in that it did not violate the open-courts clause, did not violate equal privileges and immunities, and did not violate due process.

Finally, KS&E Sports, id. held that I.C. 34-12-3-3 did not immunize the defendant from a public nuisance claim seeking equitable relief because the plaintiff’s claim asserted a public nuisance based on unlawful firearm sales by the defendant. Here, the City of Gary has asserted an indirect claim that the Gun Manufacturers sales practices, which are not alleged in and of themselves to be illegal, constitute a public nuisance. There is no allegation that the Gun Manufacturers sales practices violated any specific statute, regulation or ordinance related directly to the sale of firearms.

The Gun Manufacturers, therefore, have immunity under I.C. 34-12-3-3 from all the claims brought against them in the City of Gary’s lawsuit. In addition, the Gun Manufacturers are immune under federal law.

15 USC § 7902 provides as follows:
(a) In general. A qualified civil liability action may not be brought in any Federal or State court.
(b) Dismissal of pending actions. A qualified civil liability action that is pending on the date of enactment of this Act [enacted Oct. 26, 2005] shall be immediately dismissed by the court in which the action was brought or is currently pending.

15 USCS § 7903(5) defines the term “qualified civil liability” and provides, in subsection iii, what has been called the predicate exception to the immunity granted by the statute:

(A) In general. The term "qualified civil liability action" means a civil action or proceeding or an administrative proceeding brought by a person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.

Again, the City of Gary has alleged no violations of any Indiana or federal statutes specifically applicable to the sale or marketing of firearms. Notwithstanding the holding of the Indiana Court of Appeals in Smith & Wesson, 875 N.E.2d 422 (Ind. Ct. App. 2007) that the City of Gary’s allegation of a violation of the Indiana public nuisance statute met the predicate exception, subsequent case law has made it clear that the violation of public nuisance statutes do not meet the definition of a State or Federal statute applicable to the sale or marketing of firearms, and are not the type of violations Congress intended to meet the predicate exception for the reason that such statutes do not regulate or implicate the sale or marketing of firearms, City of New York v. Beretta U.S.A. Corp., 524 F. 3d 384, 403 (2d Cir. 2008), District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163 (D.C. 2008); Ileto v. Glock, Inc., 421 F.Supp 2d 1274, 1282-83 (C.C. Ca. 2006).

The Gun Manufacturers are immune from liability for all the claims brought by the City of Gary in this lawsuit under both federal and Indiana state law. Their Trial Rule 12(C) Motion for Judgment on the Pleadings should be granted…

No attorney fees were awarded to the manufacturers. The City of Gary has initiated an appeal, but given how this law has been interpreted, the dismissal is on solid ground.

I was involved (in a very, very minor way) in this case from its inception in 1999 until 2015. I'm glad to see it on its way out.

 

[Thor]

That is good news! I believe a lot of the gun companies that would have relocated to IN would not do so because of this case. One more impediment removed thanks for the update.

 

[actaeon277]

Took long enough

 

[phylodog]

It's unfortunate that it takes that long for something which seems like common sense to work it's way through the courts.

 

[HoughMade]

It's unfortunate that it takes that long for something which seems like common sense to work it's way through the courts.

Tru Dat

....especially since I never really made that much from the case.

 

[Floivanus]

Too bad a BS case like this already did tons of damage to the area’s firearm community (fetlas anyone?) isn’t Gary’s current mayor (freeman-wilson) the one who filed this frivolous suit.

I would expect to see her push for an appeal

 

[Alamo]

...
No attorney fees were awarded to the manufacturers. ...

Why not?

The statute does not mince words. If a plaintiff files a "groundless" action— i.e., one that violates the statutory ban—"the court shall dismiss the claims or action and award to the defendant any reasonable attorney's fee and costs incurred in defending the claims or action."

Seems like the court specifically takes not of this, and it that "shall" seems to apply...

I was involved (in a very, very minor way) in this case from its inception in 1999 until 2015. I'm glad to see it on its way out.

So since no attorney fees, .0001 of nothing is ... nothing, I guess. No Christmas bonus for you.

Do you have a hyperlink to this decision?

 

[WebSnyper]

Why not?



Seems like the court specifically takes not of this, and it that "shall" seems to apply...



So since no attorney fees, .0001 of nothing is ... nothing, I guess. No Christmas bonus for you.

Do you have a hyperlink to this decision?

Yeah, if I am understanding correctly and there was no awarding of attorney fees, seems in some ways like the filer of the lawsuit got what they wanted which was to be a PITA and cost the manufacturers $$.

 

[HoughMade]

Why not?

From the order:

The Gun Manufacturers also seek attorney fees from the City of Gary. However, I.C. 34-12-3-4(b) provides: If:
(1) a party has brought an action under a theory of recovery described in section 3(1) or 3(2) of this chapter;
(2) the action commenced on or before August 27, 1999; and
(3) the action is dismissed; no award for attorney’s fees or costs incurred shall issue to the plaintiff or the defendant.

This case was filed on August 27, 1999. Neither the City of Gary nor the Gun Manufacturers are entitled to attorney fees or costs.

So since no attorney fees, .0001 of nothing is ... nothing, I guess. No Christmas bonus for you.

Pfft. I bill by the hour. I don't work on contingency. I never liked the word "bonus" to me it implies a gift. I have earned every cent of what I have been paid.

Do you have a hyperlink to this decision?

No. it was on the Lake County Online docket which is a subscription service. the only reason I found out about it was because I was formerly on the service list and got notice of the initiation of the City of Gary's appeal yesterday. Oddly, I never got notice of the order issued in January. I haven't been involved in this case since I left my former firm in Sept. 2015. We were local counsel for Beemiller/Hi-Point, Browning and Glock. My present firm is local counsel for Beretta, but I am not involved in the case.

 

[2A_Tom]

I was involved (in a very, very minor way) in this case from its inception in 1999 until 2015. I'm glad to see it on its way out.

How many billable hours in 15+ years?

I remember when they changed that law a couple of years ago. I think that date was included so not to have a constitutional question about it being an ex post facto law.

 

[HoughMade]

How many billable hours in 15+ years?

I remember when they changed that law a couple of years ago. I think that date was included so not to have a constitutional question about it being an ex post facto law.

Not a huge amount. Hillary had more billable hours on Whitewater. Strangely, I can remember everything I did on this case. Hillary? Not so much.

 

[Alamo]

From the order:

Ah. Thanks.

Pfft. I bill by the hour. I don't work on contingency. I never liked the word "bonus" to me it implies a gift. I have earned every cent of what I have been paid.

T'were only teasing...

No. it was on the Lake County Online docket which is a subscription service. ...

Thanks.

Odd, it's not on the Brady Bunch website either.

They do have this:

This case is the last surviving city lawsuit.

 

[2A_Tom]

This is the original thread about the law.

[h=1]Indiana Scores one for the Good Guys[/h]

 

[lonehoosier]

.

 

[lonehoosier]

[h=1]Long-running Gary gun lawsuit may go to trial after Indiana Supreme Court declines to intervene[/h]

https://www.nwitimes.com/news/local...cle_ff019979-fd41-504b-88fe-7e23f1f4e8a5.html

 

[n9tkf]

Given the U.S. Supreme Court decision on the Remington case, we will see more of these cases pop up.

 

[Kirk Freeman]

Given the U.S. Supreme Court decision on the Remington case, we will see more of these cases pop up.

You are aware that the Gary suit is many years old?

 

[n9tkf]

You are aware that the Gary suit is many years old?

Yes, I am aware of the age of the lawsuit. Just making a point that it seemed to be going nowhere and then this ruling and the recent ruling by the U.S. Supreme Court focused on marketing of products.

In my opinion similar to the tobacco lawsuits some years ago.