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The city of Atlanta fought to keep its lawsuit against gun makers alive Wednesday as gun company lawyers sought to crush it in the Georgia Court of Appeals. During oral arguments, Jones, Day, Reavis & Pogue lawyer David J. Bailey asked the court to find that state law bars the city from suing gun manufacturers. Fulton State Judge M. Gino Brogdon should have granted gun makers summary judgment, he told Judges Frank M. Eldridge and M. Yvette Miller. Sturm, Ruger v. City of Atlanta, No. A01A2521 (Ct. App. Ga. Nov. 14, 2001). Presiding Judge Gary B. Andrews was scheduled to hear the arguments, but a bout of bronchitis kept him home. He will review the case on audiotape. Though lawyers for both sides focused specifically on the proper judicial course for Atlanta’s product liability suit against gun manufacturers and trade groups, Wednesday’s arguments also touched on the power to regulate. The city claims the Legislature is stealing the authority of the courts. Gun makers say the city is encroaching on the state’s exclusive power to regulate guns. Bailey told the court that recent amendments to the Georgia Code say specifically that Atlanta has no authority to bring this suit. However, Nicholas C. Moraitakis, who argued for the city, called those amendments “blatant examples of legislative usurpation of the power of the judiciary.” He asked the court to send the case back to Judge Brogdon so the city could pursue its remedies. “I think it is a threat to the judiciary what the Legislature has done here,” said Moraitakis, of Moraitakis, Kushel & Pearson. Product liability lawsuits against gun makers took root nationwide after New Orleans filed a similar suit in 1998. Atlanta’s complaint accuses 16 manufacturers and trade groups of designing and selling guns with dangerously negligent designs, and then failing to provide adequate warnings about how to use them. The defendants include Glock, Beretta U.S.A., Colt’s Manufacturing Co. Inc., Bryco Arms, Taurus International Marketing Inc. Sturm, Ruger & Co. Inc., and Smith & Wesson. Atlanta v. Smith & Wesson, No. 99VS0149217 (Fult. St. filed Feb. 4, 1999). LEGISLATURE’S ATTEMPT ON SUIT The gun manufacturers have had a lot of help from the Georgia General Assembly. Legislators tried to stymie Atlanta’s suit in 1999 by passing HB 189, which amended O.C.G.A. � 16-11-184 and reserved the regulation of firearms exclusively for the state. The amendment applies to “any action pending on or brought on or after the date this act becomes effective.” Georgia Gov. Roy E. Barnes signed the bill into law five days after the city filed its complaint. Citing the new law, lawyers for the gun makers asked Judge Brogdon to dismiss the suit. He agreed with their claim that since the city is not a natural person, it couldn’t sue under strict product liability law, but he declined to rule on the negligence claims. Bailey told the judges in the court of appeals Wednesday that the legislation’s timing showed the “clear legislative intent” of the General Assembly: Cases like Atlanta’s were not to proceed. The law is certainly retroactive, he said, but it is not at all constitutional. “Our argument is that the plain language of the statute itself fully supports our motion,” which Brogdon denied, he said. Brogdon denied the defendants’ petition for immediate review, so the gun manufacturers sought mandamus before Superior Court Judge Thelma Wyatt Cummings Moore. The gun makers wanted Moore to order Brogdon, Mayor Bill Campbell and the city to dismiss the suit, but she refused, calling their effort “an indirect attempt to undo the acts of Judge Brogdon.” Smith & Wesson v. Atlanta, No. 99CV17108, Glock v. Atlanta, No. 99CV16402 (Fult. Super. Feb. 18, 2000). From that order the gun makers appealed again, this time to the Supreme Court of Georgia. The court upheld Moore’s ruling on their mandamus action. However, Justice Norman S. Fletcher, joined by Justice Leah M. Sears, wrote a concurring opinion that gave the defendants some hope on the statutory issue although the court’s opinion did not address it. Smith & Wesson v. City of Atlanta, Nos. S00A1530, S00A1533 (Sup. Ct. Ga. Feb. 16, 2001). “This determination does not reach the ultimate issue of whether state law precludes municipalities from maintaining actions like the City of Atlanta’s pending suit in the State Court of Fulton County,” Fletcher wrote. “I believe it does.” Shortly after that ruling, the General Assembly passed another amendment calculated to help the gun manufacturers get a ruling on their summary judgment motion. This amendment, a change to O.C.G.A. � 5-6-34(a) (5.1), granted a direct appeal on “dispositive” orders stemming from O.C.G.A. � 16-11-184. Pursuant to that law, the gun makers brought Wednesday’s appeal from Judge Brogdon’s denial of summary judgment. LEGISLATIVE-JUDICIAL LINE CROSSED? Moraitakis, the city’s lawyer, told the panel that this legislation is a special law that applies directly to this case and to no other in the state. That, he said, is the Legislature encroaching on the power of the courts. “You’ve confused me,” Eldridge interjected. “Allowing this court to review what Judge Brogdon has done is a violation of separation of powers?” Moraitakis responded that what the General Assembly has done, for all practical purposes, is issue its own ruling in this case. It has established a new appellate route for this case alone, he told the panel. Bailey, however, said the new legislation makes little difference in the long run. By ruling on the summary judgment issue, he said, the court would just be “firing the bullet a little bit sooner. We would eventually have the same appeal.” Also, Bailey said, the statute applies to any city or county that might seek to bring a similar complaint. Carving out an exception for the Atlanta case would create an unconstitutional special local exemption. “I’m sure the Supreme Court will be anxious to address that issue,” Judge Miller said. “I’m hoping the Supreme Court never has to address that issue, your honor,” Bailey replied, smiling. Arguing from his amicus brief on behalf of the state, Assistant State Attorney General Alfred L. Evans Jr. argued that the discussion of the statute was unnecessary. As a matter of common sense, gun regulation must be left to the state or the federal government. It can’t be left “piecemeal” to individual cities and counties, he said. “I don’t even think the court has the necessity to get into any of the statutes,” he said. The power to regulate guns rests exclusively in the Legislature according to the state constitution, he said. The constitution vests that power in the General Assembly and the city of Atlanta is trying to usurp that power though its lawsuit, he said. Claims against gun manufacturers in other states have not found much success. The Louisiana Supreme Court dismissed the New Orleans suit in April, holding that the city had no right of action under the state constitution. Though the state had a statute similar to Georgia’s, barring cities from suing gun makers, the court found the statute was unnecessary. Morial v. Smith & Wesson, No.00CA1132 (Sup. Ct. La., April 3, 2001).

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