In a very rare win for a city against a gun manufacturer, the Indiana Supreme Court has ruled that a lawsuit by the City of Gary can proceed to trial. These lawsuits have been uniformly rejected on various grounds, including standing. Yet, Gary with one of the nation’s highest homicide rates will be allowed to sue companies like Smith and Wesson, Beretta and Colt as well as gun dealers for the harm caused by their products. They are proceeding on a nuisance theory.
Gary is a city of 96,000 and filed the action in 1999. Similar lawsuits have been dismissed in Illinois, New York, and Washington. Moreover, recently, the Rhode Island Supreme Court tossed out a massive nuisance claim against lead paint manufacturers.
The one big factor favoring Gary at this point is that nuisance is an area of traditional state law and this decision is based squarely on Indiana law. This does not necessarily insulate the decision from Supreme Court review and, as we have seen in punitive damage cases, it could theoretically reverse the decision. However, state cases of this kind have the lowest vulnerability. Nevertheless, the use of nuisance against a product manufacture in this type of case is enormously controversial. It would circumvent product liability rules, including statutes of limitation. It would circumvent the legislative process that has allowed these products to be sold despite their use in crime. Finally, with the recent decision holding that the second amendment does create an individual right to bear arms, it is a decision that places tort on a collision course with a constitutional right (though the city can argue that other constitutional rights, when used unwisely or recklessly, can be nuisances).
This is clearly a case to watch. And for all of those gun control advocates celebrating this week, here is the lyrics of the song of the day:
What a wonderful name,
Named for Elbert Gary of judiciary fame.
Gary, Indiana, as a Shakespeare would say,
Trips along softly on the tongue this way–
Gary, Indiana, Gary Indiana, Gary, Indiana,
Let me say it once again.
Gary, Indiana, Gary, Indiana, Gary, Indiana,
That’s the town that “knew me when.”
If you’d like to have a logical explanation
How I happened on this elegant syncopation,
I will say without a moment of hesitation
There is just one place
That can light my face.
Not Louisiana, Paris, France, New York, or Rome, but–
My home sweet home.
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