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4/3/01

SUPREME COURT OF LOUISIANA
No. 00-CA-1132

MAYOR MARC H. MORIAL, AND THE CITY OF NEW ORLEANS v. SMITH & WESSON CORPORATION, ET AL.
ON APPEAL FROM THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS HONORABLE LLOYD J. MEDLEY, JUDGE

KIMBALL, Justice In 1998, the Mayor and the City of New Orleans filed suit against the firearms industry for damages allegedly suffered by the City related to the manufacture, marketing, promotion, and sale of unreasonably dangerous firearms. Subsequently, the legislature enacted La. R.S. 40:1799, which purports to preclude such suits by abolishing the City's right of action and reserving the authority to bring these suits to the state. The City challenged the constitutionality of the statute on several grounds. For the reasons that follow, we find that La. R.S. 40:1799 may be retroactively applied to the City's suit as it was enacted pursuant to a reasonable exercise of the state's police power and that La. R.S. 40:1799 and its retroactivity provision is not a constitutionally prohibited local or special law. FACTS AND PROCEDURAL HISTORY On October 30, 1998, plaintiffs, Mayor Marc H. Morial and the City of New Orleans (collectively referred to as the "City"), filed suit against numerous firearms

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manufacturers, retailers, distributors, and trade associations1 seeking to recover damages for economic harm suffered by the City "associated with the manufacture, marketing, promotion, and sale of firearms which are unreasonably dangerous under Louisiana law." Specifically, the City's petition alleges that "[a]ctions by defendants have caused the city to pay out large sums of money to provide services including but not limited to necessary police, medical, and emergency services, health care, police pension benefits and related expenditures, as well as to have lost substantial tax revenues due to lost productivity." Subsequent to the filing of the City's original petition, the legislature enacted Act 291 of 1999, effective June 11, 1999. Section 1 of the Act purports to preclude suits from being filed by any political subdivision or local governmental authority against any firearms or ammunition manufacturer, trade association, or dealer for damages relating to the lawful design, manufacture, marketing, or sale of firearms or ammunition and reserves this power to the state.2 Section 2 of Act 291 provides that its provisions
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Named as defendants in plaintiffs' original petition are: Smith & Wesson Corp., Sturm, Ruger & Co., Beretta U.S.A., Colt's Manufacturing Co., Glock, Inc., Taurus International Manufacturing, Inc., Sigarms, Inc., Lorcin Engineering Co., Inc., Bryco Arms, B.L. Jennings, Inc., Phoenix Arms, Davis Industries, Navegar, Inc., d/b/a Intratec, FMJ (a.k.a. "Full Metal Jacket"), Inc., Arms Technology, Inc., Cash America Pawn of New Orleans, Magic Money Pawn Shop, New Orleans Pawn Shop, Albert's Jewelry & Loan Pawn, Professional Sports Shop, Inc., American Shooting Sports Council, Inc., National Shooting Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers' Institute, Inc. In an amended petition, plaintiffs added the following defendants: Tomkins, PLC, Fabbrica D'Armi Pietro Beretta, SPA, Glock, Gmbh, Forjas Tauras, SA, Swiss Industrial Group, Browning Arms Co., The Fabrique Nationale Group, Heckler and Koch, Inc., Heckler and Koch, Gmbh, British Aerospace Ltd., Para-Ordnance, Magazine Pawn Shop, Pavenstedt & Pauli, and "one or more presently unidentified corporations doing business in the State of Louisiana which brokers or sells insurance to the defendants in this suit." Several of these defendants were dismissed from this suit by the trial court based on exceptions unrelated to the instant appeal. 2 Section 1 of Act 291 of 1999 enacted La. R.S. 40:1797.1, which was redesignated as La. R.S. 40:1799 pursuant to the statutory revision authority of the Louisiana State Law Institute. La. R.S. 40:1799 provides:
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"shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date." The legislature also enacted Acts 1999, No. 1299, effective July 12, 1999, which was codified as La. R.S. 9:2800.60. Section 1 of the Act provides that the Louisiana Products Liability Act was not designed to impose liability on a manufacturer or seller for the improper use of a properly designed and manufactured product, and that the manufacture and sale of firearms and ammunition by duly licensed manufacturers and dealers is lawful activity and is not unreasonably dangerous.3 Section 2 of Act 1299 A. The governing authority of any political subdivision or local or other governmental authority of the state is precluded and preempted from bringing suit to recover against any firearms or ammunition manufacturer, trade association, or dealer for damages for injury, death, or loss or to seek other injunctive relief resulting from or relating to the lawful design, manufacture, marketing, or sale of firearms or ammunition. The authority to bring such actions as may be authorized by law shall be reserved exclusively to the state. B. This Section shall not prohibit the governing authority of a political subdivision or local or other governing authority of the state from bringing an action against a firearms or ammunition manufacturer, trade association, or dealer for breach of contract as to firearms or ammunition purchased by the political subdivision or local authority of the state. 3 La. R.S. 9:2800.60, as enacted by Act 1299 of 1999, provides in its entirety: A. The legislature finds and declares that the Louisiana Products Liability Act was not designed to impose liability on a manufacturer or seller for the improper use of a properly designed and manufactured product. The legislature further finds and declares that the manufacture and sale of firearms and ammunition by manufacturers and dealers, duly licensed by the appropriate federal and state authorities, is lawful activity and is not unreasonably dangerous. B. No firearm manufacturer or seller shall be liable for any injury, damage, or death resulting from any shooting injury by any other person unless the claimant proves and shows that such injury, damage, or death was proximately
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caused by the unreasonably dangerous construction or composition of the product as provided in R.S. 9:2800.55. C. Notwithstanding any other provision of law to the contrary, no manufacturer or seller of a firearm who has transferred that firearm in compliance with federal and state law shall incur any liability for any action of any person who uses a firearm in a manner which is unlawful, negligent, or otherwise inconsistent with the purposes for which it was intended. D. The failure of a manufacturer or seller to insure that a firearm has a device which would: make the firearm useable only by the lawful owner or authorized user of the firearm; indicate to users that a cartridge is in the chamber of the firearm; or prevent the firearm from firing if the ammunition magazine is removed, shall not make the firearm unreasonably dangerous, unless such device is required by federal or state statute or regulation. E. (1) For the purposes of this Chapter, the potential of a firearm to cause serious injury, damage, or death as a result of normal function does not constitute a firearm malfunction due to defect in design or manufacture. (2) A firearm may not be deemed defective in design or manufacture on the basis of its potential to cause serious bodily injury, property damage, or death when discharged legally or illegally. F. Notwithstanding any provision of law to the contrary, no manufacturer or seller of a firearm shall incur any liability for failing to warn users of the risk that: (1) A firearm has the potential to cause serious bodily injury, property damage, or death when discharged legally or illegally. (2) An unauthorized person could gain access to the firearm. (3) A cartridge may be in the chamber of the firearm. (4) The firearm is capable of being fired even with the ammunition magazine removed. G. The provisions of this Section shall not apply to assault weapons manufactured in violation of 18 U.S.C.
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states that its provisions are "intended to clarify the provisions of the Louisiana Products Liability Act, and therefore are remedial in nature and shall apply to all actions or claims pending on or filed after the effective date of this Act." Subsequent to the effective dates of these Acts, defendants filed peremptory exceptions, contending plaintiffs have no right of action under La. R.S. 40:1799 and no cause of action under La. R.S. 9:2800.60. In response, the City challenged the constitutionality of these statutes on several grounds. Keith Ignatik, an individual and private plaintiff in a pending action filed on July 2, 1999 and captioned Ignatik v. Tummarello, No. 99-10781, Civil District Court for the Parish of Orleans, was granted leave to intervene in the City's suit "for the purpose of asserting certain constitutional rights and making certain constitutional challenges." After a contradictory hearing, the trial court denied defendants' exceptions, finding that La. R.S. 40:1799 and La. R.S. 9:2800.60 are unconstitutional.4 Initially addressing defendants' exception of no right of action, the trial court found that Act 291 does not deprive plaintiffs of a right of action. First, the trial court found that plaintiffs have a vested right to bring suit under the City's home rule charter and, therefore, La. R.S. 40:1799, enacted by Act 291, cannot be retroactively applied to plaintiffs' suit. The trial court next found that the retroactivity provision of Act 291 is an unconstitutional special law because it implicitly "singles out" the City's pending lawsuit, which is "the one and only lawsuit filed against gun manufacturers in the State of Louisiana." The trial court also concluded that La. R.S. 40:1799 is a substantive law because it changes the rights of a political subdivision to file suit against a firearms manufacturer; therefore, because the legislation divests the City of the right found in S.922(v). At the hearing, the trial court stated, "Just to keep the record clear, the Attorney General has been notified and has basically said he's not going to participate or appear." The Attorney General has not participated in the instant appeal.
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its home rule charter to initiate litigation and changes pre-existing law, the trial court found it unconstitutional. Finally, the trial court found that retroactive application of La. R.S. 40:1799 would impair plaintiffs' rights under the United States and Louisiana Constitutions, including their due process and equal protection rights and Mr. Ignatik's right as a private citizen to assert the constitutional protections of the Contracts Clause and the Bill of Attainder Clause. Turning to defendants' exception of no cause of action, the trial court found that plaintiffs have a cause of action against manufacturers and sellers of firearms in spite of the enactment of La. R.S. 9:2800.60. The trial court reasoned that plaintiffs stated a cause of action for design defects5 and for inadequate warning6 under prior Louisiana products liability law. The trial court found that because plaintiffs have a vested right in their cause of action, La. R.S. 9:2800.60 cannot be applied retroactively to divest that right. The trial court further found that La. R.S. 9:2800.60 is an unconstitutional special law and cannot be retroactively applied because it is substantive in nature. Finally, the trial court found that retroactive application of La. R.S. 9:2800.60 would violate constitutionally mandated separation of powers and impair plaintiffs' rights under the United States and Louisiana Constitutions, including their due process and equal protection rights and Mr. Ignatik's right as a private citizen to assert the constitutional protections of the Contracts Clause and the Bill of Attainder Clause.

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The design defects alleged by plaintiffs include the absence of a mechanism to: (1) prevent firearms from being fired by unauthorized users; (2) alert users that a bullet is in the firing chamber; and (3) prevent firearms from being fired when the ammunition magazine was removed from the firearm. 6 Defendants allegedly failed to provide an adequate warning for the risks that: (1) minors could gain access to the firearm; (2) a round may be hidden in the chamber of a pistol; and (3) a pistol could be fired when the ammunition magazine is removed. Defendants also allegedly failed to advise consumers how to properly store weapons.
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Defendants have appealed the district court's judgment directly to this court pursuant to La. Const. art. V,

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