When the industry finally mustered enough Congressional support to get the Protection of Lawful Commerce in Firearms Act was signed into law by President George W. Bush, the firearms industry breathed a collective sigh of relief. It was widely viewed as a reprieve from what then HUD Secretary Andrew Cuomo said would be the “death from a thousand cuts” for any manufacturer who didn’t agree to the same agreement that nearly put Smith & Wesson out of business in 2000.
If you’re not familiar, the now-infamous agreement -brokered by then-President Bill Clinton- said that S&W would only sell guns through dealers that complied with “certain restrictions” and would be protected from the lawsuits sweeping through the industry. It was equally certain that it proved to be a disastrous agreement for S&W, but led to the realization that the industry needed protection from “legislation via litigation” as was promised by Cuomo, Eliot Spitzer and other officials who promised that, barring new gun regulations, “bankruptcy lawyers would be knocking at your doors.”
When the Act passed, it was praised by NRA President Wayne LaPierre as “the most significant piece of pro-gun legislation in twenty years.”
Maybe so, but it seems that when you’re that determined to get into the courts, you can find judges equally determined to assist in those efforts.
Despite having been dismissed in 2016 because a suit brought by the families of the 2012 Sandy Hook shooting suit fell “squarely within the broad immunity” of the Protection in Lawful Commerce Act, the Connecticut Supreme Court reversed that decision on March 14 of this year. Using a very narrow interpretation of the law, the Connecticut high court said the suit could continue.
Now, a unanimous ruling from the Court of Appeals of Indiana will allow a similar suit to proceed. The case, City of Gary v. Smith & Wesson, et al, alleges public nuisance, negligent distribution and marketing and negligent design related to the sale of firearms in Indiana.
It’s the second time the case has been up-and-down through the Indiana court system.
The suits are based on an exception not covered in the federal act and make the case that claims to general consumer-protection law violations aren’t covered. Likewise, the case appears to satisfy an exception in Indiana state law that says suits for allegedly illegal conduct can proceed.
Not being qualified to interpret the arguments, it appears there are some holes in the Protection of Lawful Commerce in Firearms Act that have been uncovered- and are being exploited- by groups seeking to either constrain- or eliminate- the firearms industry.
As usual, that means more court time, more costs and another round of the frustrating act of attempting to read the minds of the lower courts.
One thing, however, is certain…it looks like more firearms cases will be headed for Chief Justice John Robert’s United States Supreme Court.
They won’t get there quickly, but ultimately that’s where they’ll ultimately be ruled on.
And we’ll keep you posted.