City of Gary v. Smith & Wesson Corp. , 126 N.E.3d 813 ( 2019 )

FILED
May 23 2019, 8:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR
Michael E. Tolbert APPELLEES/CROSS-APPELLANTS
Tolbert & Tolbert, LLC STURM RUGER & COMPANY, INC.
Gary, Indiana & COLT’S MANUFACTURING
COMPANY LLC
Jonathan E. Lowy Terence M. Austgen
Brady Center to Prevent Gun Violence Elizabeth M. Bezak
Washington, DC Burke Costanza & Carberry LLP
Merrillville, Indiana
ATTORNEY FOR
APPELLEE/CROSS-
APPELLANT STURM RUGER &
COMPANY, INC.
James B. Vogts
Swanson, Martin & Bell, LLP
Chicago, Illinois
ATTORNEYS FOR
INTERVENOR THE STATE OF
INDIANA
Curtis T. Hill, Jr.
Attorney General of Indiana
Thomas M. Fisher
Solicitor General
Kian Hudson
Julia C. Payne
Deputy Attorneys General
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 1 of 33
ATTORNEYS FOR AMICI
CURIAE SENATORS JIM
TOMES, MARK MESSMER,
AND DENNIS KRUSE, AND
REPRESENTATIVES BEN
SMALTZ, JERRY TORR, AND
GREG STEUERWALD,
MEMBERS OF THE INDIANA
GENERAL ASSEMBLY
James Bopp, Jr.
Corrine L. Youngs
The Bopp Law Firm, PC
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of Gary, May 23, 2019
Appellant-Plaintiff/Cross-Appellee, Court of Appeals Case No.
18A-CT-181
v. Appeal from the Lake Superior
Court
Smith & Wesson Corp., Sturm, The Honorable John M. Sedia,
Ruger & Company, Inc., Colt’s Judge
Manufacturing Company, LLC, Trial Court Cause No.
Beretta U.S.A. Corp., Phoenix 45D01-1211-CT-233
Arms, Glock, Inc., Beemiller,
Inc. d/b/a High-Point Firearms,
Browning Arms, and Taurus
International Manufacturing,
Inc.,
Appellees-Defendants/Cross-Appellants
Crone, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 2 of 33
Case Summary
[1] The City of Gary (“the City”) appeals the trial court’s grant of judgment on the
pleadings on its amended complaint against various handgun manufacturers
(“the Manufacturers”),1 which includes claims for public nuisance, negligent
distribution and marketing, and negligent design. The trial court ruled that the
City’s claims are barred by a 2015 amendment (“the Amendment”) to Indiana
Code Section 34-12-3-3 (“the Immunity Statute”), which made the statute
retroactive to four days before the City filed its original complaint in 1999. The
court also ruled that the Manufacturers are not entitled to attorney’s fees and
costs under Indiana Code Section 34-12-3-4. The court further ruled that,
contrary to an earlier opinion from this Court in this case, the City’s claims are
also barred by the federal Protection of Lawful Commerce in Arms Act (“the
PLCAA”).
[2] On appeal, the City argues that the Amendment is unconstitutional and that its
claims are not barred by either the Immunity Statute or the PLCAA. The State
of Indiana has intervened to defend the Amendment’s constitutionality. The
Manufacturers argue that the City’s lawsuit is an unlawful attempt to regulate
firearms and that the trial court erred in denying them attorney’s fees and costs
1
The Manufacturers are Smith & Wesson Corp., Ruger & Co., Inc., Beretta U.S.A. Corp., Colt’s
Manufacturing Company, LLC, Phoenix Arms, Glock, Inc., Beemiller, Inc. d/b/a Hi-Point Firearms,
Browning Arms, and Taurus International Manufacturing, Inc.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 3 of 33
under Indiana Code Section 34-12-3-4. We conclude as follows: (1) the City’s
lawsuit is not an unlawful attempt to regulate firearms; (2) the City has failed to
establish that the Amendment is unconstitutional; (3) the Immunity Statute
does not bar all of the City’s claims; (4) the Manufacturers are not entitled to
attorney’s fees and costs; and (5) pursuant to the law of the case doctrine, we
reaffirm our prior holding that the PLCAA does not bar the City’s claims.
Accordingly, we affirm in part, reverse in part, and remand for further
proceedings.
Facts and Procedural History
[3] In August 1999, the City lodged a complaint for damages and injunctive relief
against the Manufacturers and various handgun distributors and retail dealers.
The complaint was dated August 27 and was file-stamped by the trial court
clerk on August 30. The defendants filed a motion to dismiss for failure to state
a claim pursuant to Indiana Trial Rule 12(B)(6), which the trial court granted.
[4] In January 2001, the City filed an amended complaint. In the first appeal in
this case, the Indiana Supreme Court described the amended complaint as
follows:
The complaint alleges that manufacturers of handguns typically
sell to “distributors” who resell at wholesale to “dealers” who in
turn sell at retail to the general public. Some categories of
persons are prohibited by law from purchasing guns, and all
dealer-defendants are alleged to have knowingly sold to illegal
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 4 of 33
buyers through intermediaries in “straw purchases”.… [2] Some
other practices of dealers are also alleged to generate illegal
purchases. These include failure by some dealers to obtain the
required information for background checks required by federal
law, sales of a number of guns to the same person, and
intentional “diversion” of guns by some dealers to illegal
purchasers.
The City alleges that the manufacturers know of these illegal
retail sales of handguns, and know that a small percentage of
dealers, including the dealer-defendants here, account for a large
portion of illegally obtained handguns. The City alleges the
manufacturers and distributors have the ability to change the
distribution system to prevent these unlawful sales but have
intentionally failed to do so.
The City alleges that these and other practices generate
substantial additional cost to the public in general and the City in
particular. Possession of unlawfully purchased guns is claimed to
contribute to crime that requires expenditure of public resources
in addition to the obvious harm to the victims. The complaint
alleges that seventy murders with handguns took place in Gary in
1997, and another fifty-four in 1998. From 1997 through 2000,
2,136 handguns used in crimes were recovered. Of these, 764
were sold through dealers who are defendants in this suit. The
City also asserts that harm is suffered by the City at the time of
the sale of an illegal handgun because these unlawful sales
generate additional requirements to investigate and prosecute the
violations of law.
In addition to challenging the distribution practice of the
defendants, the City also alleges negligent design of the handguns
by the manufacturers that contributes to these injuries. Finally,
2
A straw purchaser “pose[s] as the buyer (the straw or middleman) of a firearm actually intended for”
another person. KS&E Sports v. Runnels, 72 N.E.3d 892, 897 (Ind. 2017).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 5 of 33
the City alleges that the manufacturers engage in deceptive
advertising of their product by asserting that a gun in the home
offers additional safety for the occupants when in fact the
contrary is the case.
Count I of the complaint alleges that these facts support a claim
for public nuisance.[3] Count II asserts a claim for negligence in
distribution of guns and Count III presents a claim for their
negligent design. All Counts request compensatory and punitive
damages and injunctive relief.
City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1227-29 (Ind. 2003)
(“Gary 1”).
[5] The defendants filed a motion to dismiss the City’s amended complaint for
failure to state a claim, which the trial court granted. On appeal, another panel
of this Court affirmed in part and reversed in part. Our supreme court granted
transfer, reversed the trial court’s dismissal, and remanded for further
proceedings on all three counts. Id. at 1249.
[6] In the meantime, the Indiana General Assembly had enacted the Immunity
Statute, which became effective April 18, 2001. The statute states in pertinent
part that, with certain exceptions not relevant here,
3
See Ind. Code § 32-30-6-6 (“Whatever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or
(4) an obstruction to the free use of property; so as essentially to interfere with the comfortable enjoyment of
life or property, is a nuisance, and the subject of an action.”). “If a proper case is made, the nuisance may be
enjoined or abated and damages recovered for the nuisance.” Ind. Code § 32-30-6-8. A civil action to abate
or enjoin a nuisance may be brought by “the attorney of any city or town in which a nuisance exists.” Ind.
Code § 32-30-6-7(b).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 6 of 33
a person[4] 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.
Ind. Code § 34-12-3-3.
[7] In 2005, the United States Congress enacted the PLCAA, which provides that
“[a] qualified civil liability action may not be brought in any Federal or State
court” and that “[a] qualified civil liability action that is pending on October 26,
2005, shall be immediately dismissed by the court in which the action was
brought or is currently pending.” 15 U.S.C. § 7902(a), -(b). A qualified civil
liability action is
4
Indiana Code Section 34-12-3-2 defines “person” for purposes of that chapter as “a human being,
corporation, limited liability company, partnership, unincorporated association, or governmental entity.”
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 7 of 33
a civil action or proceeding or an administrative proceeding
brought by any person against a manufacturer or seller of a
qualified product [e.g., a firearm], 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 ….
15 U.S.C. § 7903(5)(A). A qualified civil liability action does 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, including
--
(I) any case in which the manufacturer or seller knowingly made
any false entry in, or failed to make appropriate entry in, any
record required to be kept under Federal or State law with respect
to the qualified product, or aided, abetted, or conspired with any
person in making any false or fictitious oral or written statement
with respect to any fact material to the lawfulness of the sale or
other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted,
or conspired with any other person to sell or otherwise dispose of
a qualified product, knowing, or having reasonable cause to
believe, that the actual buyer of the qualified product was
prohibited from possessing or receiving a firearm or ammunition
under [federal law].
Id. (emphasis added). “This exception has been referred to as the ‘predicate
exception’ because its operation requires an underlying or predicate statutory
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 8 of 33
violation.” Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 429-30 (Ind.
Ct. App. 2007) (“Gary 2”), trans. denied (2009).
[8] In November 2005, the Manufacturers filed a motion to dismiss, asserting that
the PLCAA barred the City’s claims. The trial court denied the motion on the
basis that PLCAA was unconstitutional. On appeal, another panel of this
Court affirmed on a different basis:5 that the City’s claims fall under the
predicate exception and therefore are not barred by the PLCAA. See id. at 431
(“The word ‘applicable’ is not defined by the statute but is generally defined as
‘[c]apable of being applied.’ American Heritage Dictionary of the English
Language 63 (1981). We cannot say that the word ‘applicable’ in the predicate
exception is ambiguous. On the face of the language, Indiana’s public nuisance
statute appears applicable to the sale or marketing of firearms.”). The Gary 2
court went on to say, “even assuming that the PLCAA requires an underlying
violation of a statute directly applicable to the sale or marketing of a firearm,
the City alleged such violations in their complaint.” Id. at 432-33.
[9] On May 4, 2015, Governor Mike Pence signed a bill (the Amendment) that
made the Immunity Statute retroactive to August 26, 1999, four days before the
City filed its original complaint. Ind. Public Law 106-2015, § 4; see also id. at § 1
(amending Ind. Code § 34-12-3-0.1 to state, “This chapter applies to actions
filed before, after, or on April 18, 2001.”). In November 2015, the
Manufacturers filed a motion for judgment on the pleadings pursuant to
5
Consequently, the City’s citations to the trial court’s ruling in its appellate briefs are not well taken.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 9 of 33
Indiana Trial Rule 12(C). The Manufacturers asserted that the Amendment
now compelled dismissal of the City’s claims pursuant to the Immunity Statute,
and they renewed their argument that they are also entitled to dismissal under
the PLCAA. In response, the City asserted that the Amendment, the Immunity
Statute, and the PLCAA are either inapplicable or unconstitutional.
[10] In January 2018, after a hearing, the trial court issued an order granting the
Manufacturers’ motion. The court did not address the City’s constitutional
challenges to the Amendment but concluded that the Manufacturers are entitled
to immunity under the Immunity Statute because there was no allegation that
their “sales practices violated any specific statute, regulation or ordinance
related directly to the sale of firearms.” Appealed Order at 4. Likewise, the
court did not address the City’s constitutional challenges to the PLCAA but
concluded that the Manufacturers are entitled to immunity under that statute
because the City had “alleged no violations of any Indiana or federal statutes
specifically applicable to the sale or marketing of firearms.” Id. at 5. The court
further stated that case law subsequent to this Court’s opinion in Gary 2 “has
made it clear that [violations] of public nuisance statutes do not meet the
definition of a State or Federal statute applicable to the sale or marketing of
firearms ….” Id. The court entered a final appealable judgment in the
Manufacturers’ favor but denied their request for attorney’s fees and costs under
Indiana Code Section 34-12-3-4.
[11] The City now appeals the grant of the Manufacturers’ motion for judgment on
the pleadings, and the Manufacturers cross-appeal the denial of attorney’s fees
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 10 of 33
and costs. The State of Indiana has intervened to defend the Amendment’s
constitutionality.6 Several members of the General Assembly have filed an
amicus brief urging affirmance of the trial court’s ruling.7 Additional facts will
be provided as necessary.
Discussion and Decision
[12] Where, as here, a Trial Rule 12(C) motion for judgment on the pleadings
essentially argues that the complaint fails to state a claim upon which relief can
be granted, we treat it as a Trial Rule 12(B)(6) motion. KS&E Sports v. Runnels,
72 N.E.3d 892, 898 (Ind. 2017). “We view motions to dismiss for failure to
state a claim with disfavor because such motions undermine the policy of
deciding causes of action on their merits.” Schrage v. Audrey R. Seberger Living
Tr., 52 N.E.3d 54, 59 (Ind. Ct. App. 2016). Trial Rule 12(B)(6) motions test the
legal sufficiency of a complaint, i.e., whether the allegations in the complaint
establish any set of circumstances under which the plaintiff would be entitled to
relief. Veolia Water Indpls., LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 4 (Ind. 2014).
When evaluating the trial court’s ruling, we accept the facts alleged in the
complaint as true and should not only consider the pleadings in the light most
favorable to the plaintiff, but also draw every reasonable inference in favor of
6
See Ind. Code § 34-33.1-1-1(a) (“If the constitutionality of a state statute … affecting the public interest is
called into question in an action, suit, or proceeding in any court to which any agency, officer, or employee
of the state is not a party, the court shall certify this fact to the attorney general and shall permit the attorney
general to intervene on behalf of the state and present … arguments on the question of constitutionality.”).
7
Those members are Senators Jim Tomes, Mark Messmer, and Dennis Kruse, and Representatives Ben
Smaltz, Jerry Torr, and Greg Steuerwald.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 11 of 33
the nonmoving party. Id. at 4-5. We affirm the trial court’s grant of the motion
only when it is apparent that the facts alleged in the complaint are incapable of
supporting relief under any set of circumstances. Id. at 5. We review the trial
court’s dismissal de novo, id., and we may affirm if it is sustainable on any basis
in the record. Ward v. Carter, 90 N.E.3d 660, 662 (Ind. 2018), cert. denied.
Section 1 – The City’s lawsuit is not an unlawful attempt to
regulate firearms.
[13] Because it is potentially dispositive, we first address the Manufacturers’
argument, which they did not raise in their motion for judgment on the
pleadings,8 that we may affirm the trial court’s ruling on their motion because
the City’s lawsuit is an unlawful attempt to regulate firearms.9 In Gary 1, our
supreme court rejected the trial court’s holding to this effect, which was based
8
“It has long been the general rule in Indiana that an argument or issue presented for the first time on appeal
is waived for purposes of appellate review.” Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind.
Ct. App. 2015). “More recently, however, our supreme court has signaled a shift away from this rule, at least
as far as appellees are concerned.” Id. at 312. “In Citimortgage v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012),
the court stated that a party who has prevailed at the trial court, i.e., the appellee, ‘may defend the trial
court's ruling on any grounds, including grounds not raised at trial.’” Id. Thus, “[u]nder Citimortgage, an
appellant may not present an argument that was not presented to the trial court, but this limitation does not
apply to an appellee who seeks to affirm the trial court’s judgment.” Id. “This rule is consistent with the
presumption in all appeals that a trial court’s judgment is correct as well as the general rule that on appeal we
will affirm a judgment on any theory supported by the record.” Id.
9
Amici raise the same argument in different guises. They first argue that the City’s alleged attempt to
regulate firearms is preempted by the Immunity Statute and Indiana Code Chapter 35-47-11.1, which we
largely reject for the reasons given infra. They also argue that the City’s alleged attempt to regulate firearms
violates Indiana’s separation of powers doctrine; this argument ignores our supreme court’s conclusion in
Gary 1 that the “lawsuit is no more regulation of firearms than a suit to enjoin any form of nuisance is a
regulation of the activity[,]” 801 N.E.2d at 1239, and also disregards that the legislature specifically granted
municipalities the authority to bring public nuisance claims and seek injunctive relief to enforce “a valid
statute, rule, or ordinance” against firearms manufacturers that engage in unlawful conduct. Ind. Code § 32-
30-6-7(b); Ind. Code § 34-12-3-5(3).
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on Indiana Code Chapter 35-47-11. See Ind. Code § 35-47-11-2 (providing that
a governmental “unit may not regulate in any manner the ownership,
possession, sale, transfer, or transportation of firearms … or ammunition[,]”
with certain inapplicable exceptions). The Gary 1 court stated, “This lawsuit
does not seek to implement a regulatory scheme. It seeks redress under existing
state law of nuisance and negligence.” 801 N.E.2d at 1238. “Indiana statutes
expressly authorize the City to seek relief against public nuisances.… Its
lawsuit is no more regulation of firearms than a suit to enjoin any form of
nuisance is a regulation of the activity.” Id. at 1239.
[14] In 2011, the legislature repealed Section 35-47-11-2 and enacted Chapter 35-47-
11.1. Indiana Code Section 35-47-11.1-2 states that, with certain inapplicable
exceptions, “a political subdivision may not regulate: (1) firearms,
ammunition, and firearm accessories; (2) the ownership, possession, carrying,
transportation, registration, transfer, and storage of firearms, ammunition, and
firearm accessories; and (3) commerce in and taxation of firearms, firearm
ammunition, and firearm accessories.” Indiana Code Section 35-47-11.1-3
states,
Any provision of an ordinance, measure, enactment, rule, or
policy or exercise of proprietary authority of a political
subdivision or of an employee or agent of a political subdivision
acting in an official capacity:
(1) enacted or undertaken before, on, or after June 30, 2011; and
(2) that pertains to or affects the matters listed in section 2 of this
chapter;
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 13 of 33
is void.
The Manufacturers argue that the City’s lawsuit is a “measure” or “policy” that
was undertaken before June 30, 2011, pertains to or affects the matters listed in
Section 35-47-11.1-2, and is therefore void. Appellees’ Br. at 26.10
[15] We disagree with the Manufacturers’ interpretation of the statute. “Statutory
interpretation is a function for the courts, and our goal in statutory
interpretation is to determine, give effect to, and implement the intent of the
legislature as expressed in the plain language of its statutes.” Ind. Ins. Guar.
Ass’n v. Smith, 82 N.E.3d 383, 386 (Ind. Ct. App. 2017). We presume “that the
legislature intended for the statutory language to be applied in a logical manner
consistent with the statute’s underlying policy and goals.” Id. (quoting Nicoson
v. State, 938 N.E.2d 660, 663 (Ind. 2010)). We endeavor “to give statutory
words their plain and ordinary meaning absent a clearly manifested purpose to
do otherwise.” Rush v. Elkhart Cty. Plan Comm’n, 698 N.E.2d 1211, 1215 (Ind.
Ct. App. 1998), trans. denied. “If the legislature has not defined a word, we may
properly consult English dictionaries to determine the plain and ordinary
meaning of words.” Montalvo v. State ex rel. Zoeller, 27 N.E.3d 795, 799 (Ind. Ct.
App. 2015), trans. denied. “[I]t is just as important to recognize what a statute
does not say as it is to recognize what it does say. A court may not read into a
10
The City does not argue that our review of this issue should be precluded by the law of the case doctrine,
perhaps because of the legislative changes since Gary 1.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 14 of 33
statute that which is not the expressed intent of the legislature.” Rush, 698
N.E.2d at 1215 (citation omitted). “We review matters of statutory
interpretation de novo because they present pure questions of law.” Smith, 82
N.E.3d at 386.
[16] The plain meaning of “measure” is “a step planned or taken as a means to an
end … specifically: a proposed legislative act[.]” MERRIAM-WEBSTER ONLINE
DICTIONARY, https://www.merriam-webster.com/dictionary/measure (last
visited May 1, 2019). And the plain meaning of “policy” is “a high-level overall
plan embracing the general goals and acceptable procedures especially of a
governmental body[.]” Id., https://www.merriam-
webster.com/dictionary/policy (last visited May 1, 2019). The City’s lawsuit
does not fall within either definition. To the extent the Manufacturers argue
that the City’s lawsuit advances its “policy views” or “goals” regarding
firearms, Appellees’ Br. at 27, we note that such intangibles are not mentioned
in Section 35-47-11.1-3 and do not have “provisions” that are subject to being
voided by that statute. See BLACK’S LAW DICTIONARY (10th ed. 2014)
(defining “provision” as “[a] clause in a statute, contract, or other legal
instrument”).11 The legislature knows how to prohibit firearms-related lawsuits
when it wants to. See Ind. Code § 34-12-3-3 (“a person may not bring or
11
The City’s amended complaint has “provisions,” but the Manufacturers do not specifically argue that the
complaint itself is a “measure” or “policy” for purposes of Section 35-47-11.1-3. The Manufacturers cite
several cases for the proposition that “[g]overnmental power may be exercised through application of law in a
civil suit as by statute.” Appellees’ Br. at 27. The Manufacturers cited some of the same cases for a similar
proposition in Gary 1. 801 N.E.2d at 1239. Our supreme court did not find them persuasive, nor do we.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 15 of 33
maintain an action against a firearms or ammunition manufacturer”) (emphasis
added). We find no such intent expressed in Section 35-47-11.1-3.
Consequently, we reject the Manufacturers’ argument. 12
Section 2 – The City has failed to establish that the
Amendment is unconstitutional.
[17] The City raises two constitutional challenges to the Amendment: (1) the
Amendment is an unconstitutional special law; (2) the Amendment violates its
federal due process rights.13 In considering constitutional challenges to a
statute, we accord the statute every reasonable presumption supporting its
validity and place the burden on the challenger to show unconstitutionality.
Ledbetter v. Hunter, 652 N.E.2d 543, 545 (Ind. Ct. App. 1995). This presumption
controls until it is clearly overcome by a contrary showing. Id. A challenge to a
statute’s constitutionality is a pure question of law that we review de novo.
State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017).
2.1 – The City has failed to establish that the Amendment is an
unconstitutional special law.
[18] Article 4, Section 22 of the Indiana Constitution prohibits “special” legislation
on certain subjects, and Section 23 provides that in those cases and “in all other
12
We also reject the Manufacturers’ argument that the City has no standing to challenge the constitutionality
of the Amendment, which is based on their circular argument that the legislature prohibited cities from
regulating firearms and that the City’s lawsuit is an unlawful attempt to do so.
13
The City also asserts that the Amendment violates the separation of powers doctrine and the Open Courts
clause of Article 1, Section 12 of the Indiana Constitution, but it fails to support these assertions with cogent
reasoning as required by Indiana Appellate Rule 46(A)(8)(a). Accordingly, we find them waived. D.L. v.
Pioneer Sch. Corp., 958 N.E.2d 1151, 1155 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 16 of 33
cases where a general law can be made applicable, all laws should be general,
and of uniform operation throughout the state.” “The terms ‘general law’ and
“special law” have widely understood meanings.” Mun. City of S. Bend v.
Kimsey, 781 N.E.2d 683, 689 (Ind. 2003). “A statute is ‘general’ if it applies ‘to
all persons or places of a specified class throughout the state.’ A statute is
‘special’ if it ‘pertains to and affects a particular case, person, place, or thing, as
opposed to the general public.’” Id. (quoting BLACK’S LAW DICTIONARY 890
(7th ed. 1999)). Generally, we first determine whether the law is general or
special. Id. at 690. If the law is general, we then determine whether it is
applied generally throughout the State; if it is special, we must determine
whether it is constitutionally permissible. Id.
[19] The City argues that the Amendment is a constitutionally impermissible special
law that targeted its case because the legislature “knew that the universe of
potentially affected cases was finite and fixed” and “set the effective date one
day before the date of the City’s complaint.” Appellant’s Br. at 24. The State
concedes that the legislature may well have enacted the Amendment “with the
City’s particular case in mind[,]” but argues that the Amendment is general
because it “merely ensures that [Section 34-12-3-3] applies to all cases, including
any case brought before the applicable date of the original [statute].”
Intervenor’s Br. at 21. In the alternative, the State argues that even if the
Amendment is a special law, it is constitutionally permissible because it
“ensured that [Section 34-12-3-3] would apply uniformly across the State by
specifically applying the statutory immunity to the one case remaining outside
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its reach – a case to which the law undoubtedly could have applied in the first
place.” Id. at 23. We find the State’s alternative argument persuasive, and
therefore we need not conclusively determine whether the Amendment is a
general law or a special law.
2.2 – The City may not challenge the Amendment on federal due process
grounds.
[20] The City further asserts that the Amendment retroactively deprives it of its
allegedly vested property right to seek redress against the Manufacturers 14 in
violation of the due process provisions of the Fifth and Fourteenth
Amendments to the United States Constitution. See U.S. CONST. amends. V
(“No person shall … be deprived of life, liberty, or property, without due
process of law”) and XIV (“nor shall any State deprive any person of life,
liberty, or property, without due process of law”). The State cites ample
precedent for the proposition that the City, as “an agent subject to the control of
the State,” cannot assert a federal due process claim “against its principal, the
14
Because we hold that the City may not challenge the Amendment on federal due process grounds, we need
not determine whether the City has a vested property right to seek redress against the Manufacturers. We
note, however, that there is a well-reasoned line of authority holding that “a party’s property right in any
cause of action does not vest until a final unreviewable judgment is obtained.” Ileto v. Glock, Inc., 565 F.3d
1126, 1141 (9th Cir. 2009) (quoting Lyon v. Agusta S.P.A., 252 F.3d 1078, 1086 (9th Cir. 2001)), cert. denied
(2010). “The reason an accrued cause of action is not a vested property interest … until it results in a ‘final
unreviewable judgment,’ is that it is inchoate and does not provide a certain expectation in that property
interest.” Bowers v. Whitman, 671 F.3d 905, 914 (9th Cir. 2012) (quoting Ileto, 565 F.3d at 1141). “In civil
litigation, … no person has an absolute entitlement to the benefit of legal principles that prevailed at the time
the case began, or even at the time of the bulk of the litigation. The legislature may change a statute of
limitations at the last instant, extending or abrogating the remedy for an established wrong.” Tonya K. by
Diane K. v. Bd. of Educ. of City of Chicago, 847 F.2d 1243, 1247 (7th Cir. 1988). Moreover, it is well settled that
“[t]he State remains free to create substantive defenses or immunities for use in adjudication – or to eliminate
its statutorily created causes of action altogether[,]” and “the legislative determination provides all the
process that is due.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 18 of 33
State[.]” Intervenor’s Br. at 25. See, e.g., Williams v. Mayor & City Council of
Baltimore, 289 U.S. 36, 40 (1933) (“A municipal corporation, created by a state
for the better ordering of government, has no privileges or immunities under the
Federal Constitution which it may invoke in opposition to the will of its
creator.”); Risty v. Chicago, Rock Island & Pac. Ry. Co., 270 U.S. 378, 390 (1926)
(“The power of the state and its agencies over municipal corporations within its
territory is not restrained by the provisions of the Fourteenth Amendment.”);
Creek v. Vill. of Westhaven, 80 F.3d 186, 193 (7th Cir. 1996) (distinguishing cases
holding “that a municipality cannot interpose the Fourteenth Amendment
between itself and the state of which it is the creature” from those involving a
municipality and the federal government or another state); City of Boston v. Mass.
Port Auth., 444 F.2d 167, 168 n.1 (1st Cir. 1971) (“A municipality may assert a
due process claim but not one attacking the laws of the state which created it.”)
(citing Twp. of River Vale v. Town of Orangetown, 403 F.2d 684 (2d Cir. 1968)).
The City cites no persuasive authority to the contrary, so its federal due process
claim fails.
Section 3 – The Immunity Statute does not bar all of the City’s
claims against the Manufacturers.
[21] Having disposed of the City’s constitutional challenges to the Amendment,
which makes the Immunity Statute applicable to the City’s lawsuit, we now
address the City’s argument that the trial court erred in concluding that the
statute immunizes the Manufacturers “from all the claims brought against
them” in the lawsuit. Appealed Order at 4. As mentioned above, the
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Immunity Statute provides that an action may not be brought or maintained
against a firearms manufacturer for “recovery of damages resulting from, or
injunctive relief or abatement of a nuisance relating to, the lawful” design,
manufacture, marketing, or sale of a firearm, or for “recovery of damages
resulting from the criminal or unlawful misuse of a firearm or ammunition for a
firearm by a third party.” Ind. Code § 34-12-3-3(1) and -(2).15 In KS&E Sports,
our supreme court described the statute as “unambiguous” and as “a
quintessential immunity provision[,]” in that “[i]t forecloses aggrieved plaintiffs
from bringing suit[,]” but the court acknowledged that “[t]he immunity
conferred is limited and not absolute.” 72 N.E.3d at 899, 900 (citation
omitted). “Immunity is a threshold legal issue suitable for review under [Trial]
Rule 12(C).” Id. at 901.
3.1 – The Immunity Statute bars recovery of damages resulting from the
criminal or unlawful misuse of a firearm by a third party.
[22] At the outset, we observe that the parties do not dispute that Subsection 3(2) of
the Immunity Statute bars recovery of damages resulting from the criminal or
unlawful misuse of a firearm by a third party, which figure prominently in the
City’s amended complaint. See, e.g., Appellant’s App. Vol. 2 at 83 (“As a result
of the easy availability and continued use in crime in many of these handguns
after they enter Gary, Gary has been damaged, and residents of Gary have been
15
Indiana Code Section 34-12-3-5 provides in pertinent part, “Nothing in this chapter may be construed to
prohibit a person from bringing or maintaining an action against a” firearms manufacturer for “[i]njunctive
relief to enforce a valid statute, rule, or ordinance. However, a person may not bring an action seeking
injunctive relief if that action is barred under” the Immunity Statute.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 20 of 33
and will continue to be killed and injured by these handguns.”). We therefore
affirm the trial court’s entry of judgment on the pleadings as to those damages.
3.2 – The Immunity Statute does not bar recovery of damages resulting from,
or injunctive relief or abatement of a nuisance relating to, unlawful conduct as
alleged in Count I of the City’s amended complaint.
[23] By its own terms, Subsection 3(1) of the Immunity Statute does not bar an
action for recovery of damages resulting from, or injunctive relief or abatement
of a nuisance relating to, the unlawful design, manufacture, marketing, or sale of
a firearm. Both parties seem to agree that “unlawful” conduct in this context is
conduct that violates a statute, ordinance, or regulation, as opposed to conduct
that violates a duty of care arising solely out of tort law, i.e., negligent conduct.
In Gary 1 and Gary 2, the courts held that the City alleged in its public nuisance
claim that the Manufacturers acted as “knowing accomplices” with firearms
dealers in violating “regulatory statutes” governing handgun sales. See Gary 1,
801 N.E.2d at 1235 (referring to Ind. Code §§ 35-47-2.5-1 through -15, which
are not cited in the City’s amended complaint); 16 Gary 2, 875 N.E.2d at 432-33
(“[E]ven assuming that the PLCAA requires an underlying violation of a statute
directly applicable to the sale or marketing of a firearm, the City alleged such
violations in [its] complaint.”); see also, e.g., Appellant’s App. Vol. 2 at 82 (City’s
amended complaint ¶ 65: “Defendants’ conduct violates and undermines the
16
The Gary 1 court noted that these statutes “detail the procedure to be used by a dealer in every handgun
transaction involving background checks and furnishing information on gun purchasers to the state police.”
801 N.E.2d at 1234. Several provisions have been repealed from or added to Indiana Code Chapter 35-47-
2.5 since Gary 1, but the Manufacturers do not argue that the revisions affect their potential liability.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 21 of 33
laws, regulations, and public policies of the State of Indiana and the federal
government, which, inter alia, restrict who may purchase, own, or carry
handguns and other firearms, and require specific permitting procedures
limiting access to deadly weapons.”); id. at 83 (¶ 69: “Defendants’ joint and
several ongoing wrongful conduct relating to their creation, promotion,
support, and supply of an illegitimate secondary market for handguns has
created, maintained, and contributed to a public nuisance in the City of
Gary.”).
[24] The Manufacturers assert that although the City’s allegations were deemed
sufficient to state a public nuisance claim before the Immunity Statute was
enacted, the City’s failure to allege a specific statutory violation should result in
the dismissal of that claim now that the Immunity Statute has been made
retroactive. We disagree.17 Indiana Trial Rule 8(A) provides in pertinent part,
“To state a claim for relief …, a pleading must contain: (1) a short and plain
statement of the claim showing that the pleader is entitled to relief, and (2) a
demand for relief to which the pleader deems entitled.” “Notice pleading
merely requires pleading the operative facts in order to place the defendant on
notice as to the evidence to be presented at trial.” Bunger v. Demming, 40
N.E.3d 887, 902 (Ind. Ct. App. 2015), trans. denied. “A complaint’s allegations
are sufficient if they put a reasonable person on notice as to why the plaintiff
17
The Manufacturers cite no authority for the proposition that the City was required to plead any matters in
avoidance of a defense that did not become applicable to its amended complaint until 2015, or that the City
should have sought leave to amend its complaint after the Amendment was enacted.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 22 of 33
sues.” Id. Indiana pleading rules do not require a complaint to include the
statutory basis for recovery. Daniels v. USS Agri-Chems., 965 F.2d 376, 381 (7th
Cir. 1992). The City’s amended complaint sufficiently alleges that the City is
suing the Manufacturers for their role in the alleged violation of laws governing
handgun sales, for which the City may be entitled to damages, injunctive relief,
or abatement of a nuisance.18
[25] Based on the foregoing, and based on our conclusion below that the PLCAA
does not bar the City’s claims, we reverse the trial court’s entry of judgment on
the pleadings as to Count I of the City’s amended complaint and remand for
further proceedings consistent with this opinion.
3.3 – The Immunity Statute does not bar recovery of damages resulting from,
or injunctive relief relating to, unlawful conduct as alleged in Count II of the
City’s amended complaint.
[26] Count II of the City’s amended complaint asserts claims for negligent
distribution and marketing. The Manufacturers contend that the Immunity
18
The Manufacturers note that Indiana Code Sections 35-47-2.5-2 through -5 do not apply to transactions
between firearms manufacturers and dealers. Ind. Code § 35-47-2.5-1. The relevant statutes deal with
paperwork, background check, and identification verification requirements for dealers and purchasers.
Indiana Code Section 35-47-2.5-13 provides, “Except as otherwise provided in this chapter, a dealer who
knowingly or intentionally sells, rents, trades, or transfers a handgun in violation of this chapter commits a
Class A misdemeanor.” Indiana Code Section 35-42-2-4 provides in pertinent part that “[a] person who
knowingly or intentionally aids, induces, or causes another person to commit an offense commits that
offense[.]” “The law is well settled that an accomplice is equally as guilty as a principal.” Elwood v. State,
673 N.E.2d 1, 2 (Ind. Ct. App. 1996). The law is also well settled that evidence of willful blindness to critical
facts may suffice to establish a knowing violation of a criminal statute. Mefford v. State, 51 N.E.3d 327, 335-
36 (Ind. Ct. App. 2016). The Manufacturers cite no authority holding that a party may not remotely aid,
induce, or cause another person to commit an offense. Cf. State v. Rios, 172 P.3d 844, 846 (Ariz. Ct. App.
2007) (“One does not need to be present at the scene of a crime in order to be convicted as an accomplice:
one can solicit another to commit the crime, provide the means to commit an offense, or command others to
commit the crime, all from a location remote from the scene of the crime.”).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 23 of 33
Statute bars relief for any claims of negligent, as opposed to unlawful, conduct
on their part. See Appellees’ Br. at 23 (“It would be an absurd construction to
conclude that the General Assembly, while intending to protect firearm
manufacturers from litigation, left the door open in Subsection 3(1) to a claim
that a manufacturer’s legal conduct was negligent.”). We must agree. See
Chavis v. Patton, 683 N.E.2d 253, 258 (Ind. Ct. App. 1997) (“We must construe
statutes to prevent absurdity or a result the legislature, as a reasonable body,
could not have intended.”); see also Moore v. State, 845 N.E.2d 225, 229 (Ind. Ct.
App. 2006) (“[N]egligence in the State of Indiana is not a criminal act.”), trans.
denied.
[27] For its part, the City argues that “all of [its] claims involve unlawful conduct.”
Appellant’s Br. at 30. Count II alleges that the defendants, including the
Manufacturers, “failed to prevent or limit straw purchases; to prohibit or restrict
sales to kitchen table and/or corrupt dealers; [19] to prevent multiple purchases of
their handguns; [or] to prevent diversion of their handguns at gun shows[,]”
among other things. Appellant’s App. Vol. 2 at 84. These claims
“substantially” overlap with the allegations of the City’s public nuisance claim,
19
According to the amended complaint, kitchen table dealers are
federally licensed firearm dealers who do not sell firearms from a retail establishment. A 2000
AFT [sic] report indicates that 56% of a random sample of federally licensed firearms dealers are
kitchen table dealers. Many of these firearms dealers, although federally licensed, have sold
handguns without completing background checks on purchasers or complying with other
reporting requirements, or have otherwise diverted guns into the illegal marketplace.
Appellant’s App. Vol. 2 at 65.
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Gary 1, 801 N.E.2d at 1241, and to the extent that they implicate unlawful
conduct by the Manufacturers, they are not barred by the Immunity Statute.
[28] Count II also incorporates the following allegations:
61. For years, and continuing to date, defendants have
knowingly, purposefully, intentionally, and/or negligently misled,
deceived and confused Gary’s citizens regarding the safety of
handguns. To increase sales and profits, defendants have falsely and
deceptively claimed through advertising and promotion of their handguns
that the ownership and possession of handguns in the home increases
protection of one’s home and person, and that the ownership of handguns
enhances personal security. The defendants have also falsely represented
that handguns without locks or built-in locking devices are safe. For
example, the defendants have promoted handguns with slogans
such as “homeowner’s insurance,” “tip the odds in your favor,”
“your safest choice for personal protection” and have a “good
night.”
62. Defendants have made these false and deceptive advertising
and promotional claims even though they knew or should have
known the fact, as proven by numerous studies, that handguns in
the home actually increase the risk of harm to firearm owners
and their families. Defendants also knew or should have known
that handguns without locking devices on them are not
reasonably safe. Indeed, as defendants are aware, studies have
indicated that:
A. one out of three handguns is kept loaded and unlocked in the
home;
B. guns kept in the home for self-protection are 22 times more
likely to be used to kill or injure someone known by their owners,
than to kill or injure an intruder;
C. a gun is used for protection in fewer than two percent of
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 25 of 33
home invasion crimes when someone is home; and
D. for every time a gun in the home was used in a self-defense or
legally justifiable shooting, there were four unintentional
shootings, seven criminal assaults or homicides, and eleven
attempted or completed suicides with a gun.
….
64. These statistics have been proven real in Gary, where
numerous deaths and injuries have occurred because handguns
were purchased for home protection but were thereafter
foreseeably used in unintentional shootings, teen suicides,
domestic disputes and other acts of violence.
….
76. Defendants knew or reasonably should have known and
foreseen that their negligent conduct would create an illegitimate
secondary market in handguns that has cause [sic] and continue
[sic] to cause tort damages by requesting [sic] it to expend
substantially more resources than it otherwise would in the form
of police services, emergency medical services, pension benefits,
disability benefits, workers’ compensation benefits, health care,
expenses to provide additional security measures in public
schools and other public facilities and loss of property values.
77. Defendants were and are also negligent in that they actively
market their products in a manner that fails to alert possessors
and users, as well as retailers, the substantial and latent risks of
their handguns. Defendants negligently represents [sic] that the
purchase of a firearm would enhance household security, that
handguns are safe, and that families could safely store handguns
unlocked and accessible to minors.
Appellant’s App. Vol. 2 at 81-82, 85 (emphases added).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 26 of 33
[29] Indiana Code Section 35-43-5-3(a)(9) provides that a person who “disseminates
to the public an advertisement that the person knows is false, misleading, or
deceptive, with intent to promote the purchase or sale of property or the
acceptance of employment … commits deception, a Class A misdemeanor.”20
The foregoing conduct alleged by the City could be found to violate this statute
and therefore could be found to state a claim for unlawful marketing of
firearms, which would not be barred by the Immunity Statute. 21
[30] In Gary 1, the court determined that the City may be entitled to both damages
and injunctive relief for its negligent distribution and marketing claims. 801
N.E.2d at 1245-47. To the extent that the alleged damages may result from and
the requested injunctive relief may relate to unlawful conduct, they are not
barred by the Immunity Statute. Based on the foregoing, and based on our
conclusion below that the PLCAA does not bar the City’s claims, we reverse
the trial court’s entry of judgment on the pleadings as to Count II of the City’s
amended complaint and remand for further proceedings consistent with this
opinion.
20
Indiana Code Section 35-43-5-3(b) provides,
In determining whether an advertisement is false, misleading, or deceptive under subsection
(a)(9), there shall be considered, among other things, not only representations contained or
suggested in the advertisement, by whatever means, including device or sound, but also the
extent to which the advertisement fails to reveal material facts in the light of the representations.
21
We need not, and therefore do not, consider whether the alleged conduct also could be found to violate
federal law.
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3.4 – Count III of the City’s amended complaint does not allege unlawful
conduct, so it is barred by the Immunity Statute.
[31] Count III of the City’s amended complaint alleges that the Manufacturers
were negligent in designing the handguns in a manner that the
defendants foresaw or should have foreseen that the products
would pose unreasonable risks of harm to the citizens of Gary
who are unaware of the dangers of a firearm or untrained in the
use of handguns, or who are minors or mentally impaired
persons.
Appellant’s App. Vol. 2 at 86. The complaint also alleges that the
Manufacturers “design[ed] handguns which they knew or should have known
did not have adequate safety devices,” and negligently designed, manufactured,
distributed, and/or sold handguns with “inadequate, incomplete, or nonexistent
warnings regarding the risks of harm of the product[.]” Id. The complaint
further alleges that the Manufacturers and other defendants “knowingly and
intentionally acted in concert with each other, have tacitly agreed or
cooperated, and/or colluded to wrongfully adhere to industry-wide standards or
customs” regarding various handgun design features. Id. at 87. The complaint
does not allege, however, that any of the foregoing conduct is unlawful.
Therefore, we affirm the trial court’s entry of judgment on the pleadings as to
Count III.
Section 4 – The Manufacturers are not entitled to attorney’s
fees and costs under Indiana Code Section 34-12-3-4.
[32] Indiana Code Section 34-12-3-4 provides,
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(a) If a court finds that a party has brought an action under a
theory of recovery described in section 3(1) or 3(2) of this
chapter, the finding constitutes conclusive evidence that the
action is groundless. If a court makes a finding under this
section, 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.
(b) 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.
We have reversed the trial court’s entry of judgment on the pleadings as to
Counts I and II of the City’s amended complaint, and therefore we affirm the
court’s denial of attorney’s fees and costs to the Manufacturers.22
22
Consequently, we need not determine whether the City’s action “commenced on or before August 27,
1999” for purposes of the statute. We reiterate, however, that the City’s original complaint was dated August
27 but was not file-stamped by the trial court clerk until August 30, 1999.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 29 of 33
Section 5 – Pursuant to the law of the case doctrine, we
reaffirm our holding in Gary 2 that the PLCAA does not bar
the City’s claims.
[33] Finally, we address the City’s argument that the trial court erred in ruling that
its claims are barred by the PLCAA, which is contrary to this Court’s prior
holding in Gary 2. The City contends that the trial court was bound by the law
of the case doctrine to follow that holding. We agree.
[34] “The ‘law of the case’ doctrine designates that an appellate court’s
determination of a legal issue is binding on both the trial court and the Court of
Appeals in any subsequent appeal given the same case and substantially the
same facts.” Cha v. Warnick, 476 N.E.2d 109, 114 (Ind. 1985). “The purpose of
the doctrine is to minimize unnecessary repeated litigation of legal issues once
they have been resolved by an appellate court. This doctrine is based upon the
sound policy that once an issue is litigated and decided, that should be the end
of the matter.” Terex-Telelect, Inc. v. Wade, 59 N.E.3d 298, 303 (Ind. Ct. App.
2016) (citation omitted), trans. denied (2017). “Accordingly, the law of the case
doctrine bars relitigation of all issues decided directly or by implication in a
prior decision.” Id. (citation and quotation marks omitted). “A court has the
power to revisit prior decisions of its own or of a coordinate court in any
circumstance, although as a rule courts should be loathe to do so in the absence
of extraordinary circumstances such as where the initial decision was clearly
erroneous and would work manifest injustice.” State v. Lewis, 543 N.E.2d 1116,
1118 (Ind. 1989) (emphasis added) (citation and quotation marks omitted).
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 30 of 33
“The trial court is not a coordinate court to this [C]ourt; thus, it has no power
to alter an appellate decision.” Am. Family Mut. Ins. Co. v. Federated Mut. Ins.
Co., 800 N.E.2d 1015, 1022 (Ind. Ct. App. 2004).
[35] Pursuant to the law of the case doctrine, the trial court was bound by our prior
holding in Gary 2 that the PLCAA does not bar the City’s claims; absent any
subsequent material change of facts, it was not free to revisit that decision. Cf.
Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. Ct. App. 2014) (“[W]here new
facts are elicited upon remand that materially affect the questions at issue, the
court upon remand may apply the law to the new facts as subsequently
found.”). In ruling that the PLCAA bars the City’s claims, the trial court did
not rely on new facts regarding this case, but rather on its assessment that
subsequent case law has made it clear that [violations] 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.
Appealed Order at 5 (citing City of New York v. Beretta U.S.A. Corp., 524 F.3d
384, 403 (2d Cir. 2008), cert. denied (2009), District of Columbia v. Beretta U.S.A.
Corp., 940 A.2d 163 (D.C. 2008), cert. denied (2009), and Ileto v. Glock, Inc., 421
F. Supp. 2d 1274, 1283-83 (C.D. Ca. 2006), aff’d by 565 F.3d 1126 (9th Cir.
2009), cert. denied (2010)).
[36] We first observe that we are not bound by another jurisdiction’s or “a lower
federal court’s interpretation of federal law.” Seaboard Sur. Co. v. Ind. State Dist.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 31 of 33
Council of Laborers & Hod Carriers Health & Welfare Fund, 645 N.E.2d 1121, 1125
(Ind. Ct. App. 1995), trans. denied. We further observe that the Supreme Court
of Connecticut recently remarked,
[i]f Congress had intended to limit the scope of the predicate
exception to violations of statutes that are directly, expressly, or
exclusively applicable to firearms, however, it easily could have
used such language, as it has on other occasions. The fact that
the drafters opted instead to use only the term “applicable,”
which is susceptible to a broad reading, further supports the
plaintiffs’ interpretation [of the Connecticut Unfair Trade
Practices Act (CUTPA), under which they sought relief against
firearms manufacturers, distributors, and sellers for wrongful
marketing of an assault rifle, as falling within the PLCAA’s
predicate exception].
Soto v. Bushmaster Firearms Int’l, LLC, Nos. SC 19832 and 19833, 2019 WL
1187339, at **30 (Conn. Mar. 19, 2019).23
[37] Moreover, the trial court’s ruling disregards the following language from Gary 2:
Even assuming that the PLCAA requires an underlying violation
of a statute facially applicable to the sale or marketing of a
firearm, we cannot say that the City did not make such
allegations. We note that the Indiana Supreme Court held that
unlawful conduct was not a requirement of a public nuisance
claim and that “generally, gun regulatory laws leave room for the
defendants to be in compliance with those regulations while still
acting unreasonably and creating a public nuisance.” [Gary 1],
23
The plaintiffs in Soto are the administrators of the estates of nine of the twenty-six victims who perished in
the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut.
.
Court of Appeals of Indiana | Opinion 18A-CT-181 | May 23, 2019 Page 32 of 33
801 N.E.2d at 1232-1233, 1235. However, the Indiana Supreme
Court referred to “Indiana Code sections 35-47-2.5-1 through 15,
dealing with the sale of handguns” and held that “[s]ome of the
activity alleged in the complaint presumably violates those
regulatory statutes, either directly in the case of the dealers or as
knowing accomplices in the case of the other defendants.” Id. at
1234-1235. The court also noted that the City alleged that the
Manufacturers “are on notice of the concentration of illegal
handgun sales in a small percentage of dealers, and the ability to
control distribution through these dealers, but continue to
facilitate unlawful sales by failing to curtail supply.” Id. at 1235
(emphasis added). Thus, even assuming that the PLCAA requires an
underlying violation of a statute directly applicable to the sale or
marketing of a firearm, the City alleged such violations in their
complaint.
875 N.E.2d at 432-33 (emphasis added).
[38] The Manufacturers acknowledge this passage but argue, as before, that the City
was required to “allege a specific statutory violation” in its amended complaint.
Appellees’ Br. at 45. For the reasons given above, we disagree. Accordingly,
we reverse the trial court’s ruling that the PLCAA bars the City’s claims and
remand for further proceedings consistent with this opinion. 24
[39] Affirmed in part, reversed in part, and remanded.
Najam, J., and Pyle, J., concur.
24
Given our resolution of this issue, we need not address the City’s argument that the PLCAA is
unconstitutional. See Appellant’s Br. at 40 (“If PLCAA bars the City’s case, it is unconstitutional.”).
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