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The Indiana Supreme Court has reinstated a suit filed by the city of Gary, Ind., against more than a dozen handgun manufacturers, distributors and dealers. It accuses them of creating a public nuisance by failing to keep guns out of the hands of criminals. The ruling is an exception to a steady flow of bad news for gun control advocates who have seen the number of pending municipal nuisance suits fall from 24 to three in the last few years. Dismissals, both voluntary and court ordered, have ended suits filed by the cities of Boston; Bridgeport, Conn.; Cincinnati; Detroit; and others. None of the cases has lasted long enough to reach trial. But the plaintiff’s victory in City of Gary, Ind. v. Smith & Wesson Corp., No. 45S03-0301-CV-36, may offer only a brief respite before the final blow. Senate bill A U.S. Senate bill that would ban the filing of new gun-seller negligence suits, except in the most egregious instances, and end instantly all such pending cases, has gained the support of 55 senators, just five shy of a filibuster-proof majority that would ensure its passage. Among the co-sponsors are Majority Leader Bill Frist, R.-Tenn., and the minority leader, Tom Daschle D.-S.D. The measure, popularly known as the “Firearms Manufacturers Protection” bill, passed the House in April by a vote of 285 to 140. That majority included 63 Democrats and one independent. President Bush has said he will sign the final legislation. “There’s never been a special interest bill that broad,” said Daniel Vice, a staff attorney with the Brady Center to Prevent Gun Violence. Vice complained that the bill amounts to a near total ban on gun-seller litigation, and contains very few exceptions. Among them are one provision enabling gun makers to sue distributors and retailers who fail to pay their bills and another permitting suits by gun violence victims who can show that dealers knowingly and willfully violated a statutory sales restriction. Suits called baseless Lawrence G. Keane, vice president and general counsel for the National Shooting Sport Foundation, said that the legislation is needed to bar suits that he called baseless and defamatory. Given the industry’s recent success, it would seem that the measure is redundant. But Keane disagreed. “You can win the war and go bankrupt in the process,” he said. “Just ask Dow Corning.” Keane said that the firearms industry has spent more than $120 million in defending the suits, which, he asserted, are prosecuted by the municipalities “at great expense to [their] taxpayers.” The bill could be voted on as soon as this month. But even if it does not become the law that ends Gary’s suit, the city’s lawyers may encounter the same problems in moving their case past the discovery phase that scuttled the other municipal plaintiffs’ cases. Although Indiana’s high court ruled that the city’s pleadings were legally sufficient, the unanimous panel expressed skepticism that Gary’s counsel could connect all of the links in the causal chain from manufacturer to injured party. Undaunted, the Brady Center’s Vice said, “We think we have overwhelming evidence.” Vice worked on the Gary case together with other Brady Center lawyers and with local counsel in Gary. He said that his organization has “extensive crime gun trace data” that can track a gun from its manufacturer, through the distribution network to the crime scene. Vice also said that the city will rely on expert testimony to prove its economic damages. At least one gun manufacturer’s lawyer is unimpressed: Sarah L. Olson, a partner in Chicago’s Wildman Harrold, who represents Sturm Ruger & Co. Inc., the nation’s largest firearms maker and a defendant in Gary. “We are certain that this case is going to eventually crumble as did the other cases that survived motions to dismiss,” she said. Her firm is liaison counsel for the manufacturers in Gary and has represented Sturm Ruger in similar cases. She said her client is in compliance with the law. Olson added, “It’s unfortunate that we have to go through this. Good rhetoric does not make good lawsuits.” The remaining cities moving forward with litigation are Chicago, Cleveland and New York. Harris’ e-mail address is [email protected].

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