Indiana Court Becomes First To Rule Gun Industry Legal Shield Law Unconstitutional

Oct 27, 2006

Washington D.C. – 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 [public nuisance] 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. 

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As the nation's largest, non-partisan, grassroots organization leading the fight to prevent gun violence, the Brady Campaign, with its dedicated network of Million Mom March Chapters, works to enact and enforce sensible gun laws, regulations and public policies. The Brady Campaign is devoted to creating an America free from gun violence, where all Americans are safe at home, at school, at work, and in our communities.

For continuing insight and comment on the gun issue, read Paul Helmke's blog at www.bradycampaign.org/blog/. Visit the Brady Campaign website at www.bradycampaign.org.