An Indiana judge has broken with at least four other jurisdictions and struck down a new federal law that shields the gun industry from civil suits. But the celebrations of gun-control advocates may be short-lived.

Lake County Superior Court Judge Robert A. Pete ruled that the Protection of Lawful Commerce in Arms Act violates the Due Process Clause of the Fifth Amendment and the separation of powers, becoming the first judge in the nation to find the law unconstitutional.

Smith & Wesson and 21 other gun makers and dealers had invoked the PLCAA in seeking dismissal of a suit filed in 1999 by the city of Gary, Ind., which accused them of gross misconduct in supplying handguns to the underground market. Congress passed the law in 2005 after years of lobbying from the gun industry.

“This is an important victory not only for the citizens of Gary and the people of Indiana but for the entire country,” the president of the Brady Campaign to Prevent Gun Violence said of the decision.

But the defendants have appealed and the prospects of reversal appear strong, with Pete not making much of a case for why his view of the PLCAA should prevail over the opinions from other jurisdictions that have upheld the law.

Pete specifically found a violation of due process because the city has “a substantial, protectable interest in its tort claim” against the gun makers and the law “deprives the City of [that] vested cause of action without just compensation.”

As far as separation of powers, he said, the PLCAA “clearly and unmistakably” violates the principle of U.S. v. Klein, 80 U.S. 128 (1872), which bars Congress from directing the outcome of pending cases through legislation. The law provides immunity to gun makers and dealers from any lawsuit, pending or otherwise, fitting its definition of a “qualified civil liability action.”

Pete's findings conflict, however, with those of at least four other courts (see table). In Ileto v. Glock, for example, a federal judge in Los Angeles agreed with precedent holding that

no vested property right exists in a cause of action unless the plaintiff has obtained a final, unreviewable judgment.

District of Columbia Superior Court Judge Brook Hedge, meanwhile, has ruled that the PLCAA “merely requires courts to apply a new legal standard” and “nothing within the statute” violates Klein by determining how a court should rule on a particular case. District of Columbia v. Beretta U.S.A.

The city of Gary is, of course, far from obtaining a final judgment and Pete, unlike Hedge, does not discuss precedent which has limited the scope of Klein.

"We believe that the judge's decision is flawed as a matter of law and constitutional analysis," the president of an industry trade association told the Indianapolis Star.

By Matthew Heller
11/27/06