Appendix — Morial v. Smith & Wesson Corp.

Supreme Court, U.S.

4 FILED

01 181 JUL 262001

No. ;

OFFICE OF Nt cot

In the

Supreme Court of the Anited States

MAYOR MARC H. MORIAL and

THE CITY OF NEW ORLEANS

Petitioner

VERSUS

SMITH & WESSON CORP., et al.

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF LOUISIANA

APPENDIX

Wendell H. Gauthier

Daniel G. Abel, for

The Castafio Safe Gun

Litigation Group

30th Floor, Castafio Safe

Gun Litigation

1100 Poydras Street

New Orleans, Louisiana 70163

(2043 - a 2

504) 585-7925 (facsimile)

ATTORNEYS FOR PETITIONERS,

MAYOR MARC H. MORIAL, and

THE CITY OF NEW ORLEANS

Riverside Printing, L.L.C., 4939 Tchoupitoulas, N. O., LA 70115, (504) 897-5000 J

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A-l

APPENDIX A

CIVIL DISTRICT COURT

FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

Div. M Filed Oct 30, 1998

MAYOR MARC H. MORIAL, and DISTRICT COURT

THE CITY OF NEW ORLEANS

VERSUS

SMITH & WESSON. CORP., STURM RUGER & CO.,

BERETTA U.S.A., COLTS MANUFACTURING CO-,

GLOCK INC., TAURUS INTERNATIONAL MARKET-

ING, INC., SIGARMS, INC., LORCIN ENGINEERING

CO., INC., BRYCO ARMS, B.L. JENNINGS, INC.,

PHOENIX ARMS, DAVIS INDUSTRIES, NAVEGAR,

INC.(D/B/A” INTRATEC”’), FMJ (AKA “FULL METAL

JACKE”), INC., ARMS TECHNOLOGY, INC., CASH

AMERICA PAWN OF NEW ORLEANS, MAGIC MONEY

PAWN SHOP, NEW ORLEANS PAWN SHOP, ALBERTS

JEWELRY & LOAN PAWN, PROFESSIONAL SPORT

SHOP, INC., AMERICAN SHOOTINGS SPORTS COUN-

CIL, INC., NATIONAL SHOOTING SPORTS FOUNDA-

TION, INC., SPORTING ARMS AND AMMUNITION

MANUFACTURERS ’INSTITUTE, INC.

FILED: DEPUTY CLERK.

PETITION

MARC H. MORIAL, a person of the full age of

majority and the duly elected and present MAYOR OF THE

A-2

CITY OF NEW ORLEANS, brings this action on behalf of

the other named. plaintiff, the CITY OF NEW ORLEANS

and respectfully represents.

1.

Under the Constitution of the State of Louisiana, and the

Home Rule Charter for the City of New Orleans,

“Mayor and the City of Now Orleans are responsible for the

health, safety and welfare of their citizens, and the Mayor

has the duty to protect the interest of the general public.

2.

For many years the City has suffered harm and has

incurred significant expenses associated with the manufac-

ture. marketing. promotion, and sale of firearms which are

unreasonably dangerous under Louisiana law, for the rea-

sons stated herein. In addition to the other unreasonably

dangerous design features, lack of safety features, and inad-

equate warnings described herein, defendants’guns are

unreasonably dangerous as they can be and are fired by

unauthorized users, including but not limited to children,

criminals, mentally unstable persons, and others who put

themselves and/or others at risk when they possess a

firearm.

x

This action is brought under the laws cited herein to

recover damages, and for other relief as may be obtained,

for the harm unjustly, intentionally and wrongfully done

A-3

and continuing to be done to the City of New Orleans, the

Police Department of the City of New Orleans and to the

People of New Orleans by the various defendants, who have

been and continue to be unjustly enriched thereby at the

expense of the City and its residents.

4.

The defendants are companies and organizations

who manufacture, distribute, promote, market, sell and or

instruct in the use of firearms which are sold without the

means to prevent their being fired by unauthorized users,

without adequate warnings which would prevent such

shootings by alerting users of the risks of guns and of the

importance of proper storage of guns, and without other

safety features and warnings which would prevent shootings

by unauthorized users.

Actions 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 servic-

es, health care, police pension benefits and related expendi-

tures, as well as to have lost substantial tax revenues due to

lost productivity.

5.

At all pertinent times the defendants have been able

to manufacture, market sell and/or promote firearms which

prevent shootings by unauthorized users, including firearms

which incorporate safety devices intended to prevent unau-

thorized users from firing firearms if and when they come

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into possession of them. However, defendants have failed to

do so.

6.

Defendants’ guns are inherently and unreasonably

dangerous in that they enable any person who gains access

to them - including but not limited to children. who can be

expected to be unable to properly handle them or understand

their risks - to fire them, even though it was feasible to

design the guns to prevent unauthorized users from firing

them. Defendants’ guns are also inherently and unreason-

ably dangerous in that these guns were not distributed with

adequate warnings and instructions as to their risks and as to

proper storage, and in fact they were marketed and promot-

ed in a manner which suggested that they did not pose such

risks to users and their households, and which suggested,

promoted, and encouraged unsafe storage practices.

Defendants’ guns are also inherently and unreasonably dan-

gerous in that their design features insufficiently warn all

foreseeable users, including unintended users, that a round

of ammunition may be housed in the firing chamber.

At all pertinent times it was reasonably foreseeable

to defendants that without the aid of some other design fea-

ture and/or warning device, defendants’ guns would end up

being used in a tragic, preventable shooting by an unautho-

rized user. Many of these shootings are unintentional shoot-

ings, often by children who do not fully understand or

appreciate how to properly handle a gun, or understand its

risks.

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With regard to those guns of defendants which are

semi-automatics, at all pertinent times it was foreseeable

that users, including adolescents, would mistakenly believe

that a semi-automatic gun would not fire if the ammunition

magazine is removed. At all pertinent times 9 was foresee-

able that users of semi-automatic guns would not understand

or appreciate that an undetectable round of ammunition may

be housed in the firing chamber of the gun even though the

detachable ammunition magazine has been removed or

unloaded, and that preventable, unintentional shootings

would result given defendants’ designs.

Defendants were at all pertinent times aware of these

inherent and unreasonable dangers in the design of their

firearms.

+

The design of defendants’ guns, which enable any

person who gains possession of them to fire them, and

which does not make users aware that a round of ammuni-

tion is housed in the firing chamber, results in thousands of

unintentional shooting deaths and non-fatal injuries every

year. The General Accounting Office estimates that 23% of

the annual 1,400 to 1,500 unintentional shooting deaths

occur because the user of the gun was not aware that a round

of ammunition had been loaded into the gun’s firing cham-

ber as many as 320 to 345 deaths each year. For each of

these deaths, there are many unintentional shooting injuries

that are not fatal.

A vast percentage of the injuries and deaths caused

A-6

by an undetected round of ammunition in the firing chamber

occur when an unintended user of the gun, such as an ado-

lescent unintentionally shoots another person According to

the General Accounting Office, approximately 35% of all

unintentional shooting deaths involve users of guns who

were between the ages of 13 and 18. Adolescents are natu-

rally attracted to accessible guns and notoriously discount

the risks associated with handling a firearm.

The design of defendants’ guns, which enable any

person who gains possession of them to fire them, also

results in thousands of adolescent suicides. The odds that

potentially suicidal adolescents will kill themselves double

when a gun is kept in the home. A youth aged 10-19 com-

mits suicide with a gun every six hours. Guns are the method

used in 65% of male teen suicides and 47% of female teen

suicides. Among 15-19 year-olds, firearm- related suicides

accounted for 81% of the increase in the overall rate of sui-

cide from 1980-1992.

The design of defendants’ guns, which enable any

person who gains possession of them to are them, also

results in thousands of homicides by unauthorized users,

including juveniles. Many of these homicide victims are

themselves children and teenagers. Many of these perpetra-

tors gained access to guns in homes or through theft.

At all pertinent times it was foreseeable that defen-

dants’ guns would fall into the hands of unintended users.

The Centers for Disease Control estimate that 1.2 million

elementary-aged, latch-key children have access to guns in

their homes, there are guns in approximately one-half of

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the homes in this country, and one survey reports that 30%

of these gun-owners who have children in the home keep

Their guns loaded. Another survey reports that 36% of gun

Owners with children in their home keep their guns

unlocked. In one survey, nearly 60% of the children between

the ages of 10 and 19 responded that they can acquire a gun

should they want one. The same Survey reports that 15% of

the children between the ages of 10 and 19 reported that they

had carried a gun on their person in the past 30 days. At all

such times it was also foreseeable that when unintended

users would gain access to these guns, that either the guns

would be loaded or that the user would be able to obtain

ammunition.

At such times it was also foreseeable that when unin-

tended users would gain access to defendants’ guns, tragic,

preventable shootings would result. It was foreseeable at

these times that many of these shootings would be uninten-

tional, and many would involve children - as victims and/or

as shooters. It also was foreseeable that many of these shoot-

ings would involve suicides by children and adolescents. It

also was foreseeable that many of these shootings would

involve homicides by juveniles, whose victims are juveniles.

8.

At the time the defendants manufactured, distributed,

promoted and/or sold these guns, defendants knew and

should have known of the unreasonable dangers of their

guns, including those described in the foregoing paragraphs.

Defendants were also aware of safety devices, warnings,

A-8

and other measures which would prevent and decrease these

dangers. Defendants failed to remedy these deficiencies in

their guns, warnings, instructions, promotions and advertis-

ing; failed to adequately warn customers of these dangers;

and failed to inform customers or distributors or retailers of

these devices and measures which could prevent or decrease

these dangers and failed to determine whether devices were

feasible or effective.

9.

Citizens of the City of New Orleans, particularly its

children, repeatedly have been victimized by defendants’

unreasonably dangerous products. Year after year, New

Orleans children are grievously injured or Wiled because

defendants’ guns are sold without the means to prevent their

use by unauthorized users, without adequate warnings

which would prevent such shootings by alerting users of the

risks of guns and of the importance of proper storage of

guns, and without other safety features which would prevent

shootings by unauthorized users. For example, in New

Orleans,

- In April of 1996, a six-year old boy was uninten-

tionally wounded by his nine-year old brother when

the boys found a .38 caliber revolver in a trash bin.

- In October of 1995, a five-year-old boy was

wounded in his kindergarten class when another

child grabbed the gun of a security guard at the

school.

A-9

- In December of 1994, a six-year-old boy found his

grandfather’s gun and unintentionally shot his two

younger sisters, ages four and three.

- In July of 1994, a twelve-year-old boy was shot to

death by his fourteen year-old neighbor who found a

loaded .357 magnum revolver under a mattress.

- In July of 1994, a fourteen-year-old boy was killed

in an unintentional shooting at the friends home

where he and two other teens were playing with

guns.

- In May of 1994, three boys, a fourteen-year-old and

a ten-year-old were booked on charges of negligent

homicide in the fatal shooting of a ten-year-old boy

as he was riding his bicycle.

- In December, of 1993, an eleven-year-old was shot

while he and his thirteen-year-old brother played

with guns in their home.

These tragedies, and others like them, demonstrate

that the citizens of the City of New Orleans are under a con-

tinuing threat of injury and death. particularly to children,

from defendants’ unreasonably dangerous products.

10.

At all times pertinent, these defendants purposefully and

intentionally engaged in these activities, and continue to do

so, knowing full well that their products could be sold

A-10

and/or made with the means to prevent their firing by unau-

thorized users, and that their warnings and instructions were

inadequate to alert owners and foreseeable users of the risks

posed by their guns, and the importance and means of prop-

erly storing guns, and that the advertising used to promote

those products were likely to cause many owners to store

their guns unlocked and/or loaded, which would enable

unauthorized users to fire them.

At all times pertinent, these defendants purposefully

and intentionally engaged in these activities, and continue to

do so, knowing full well that their products could be sold

and/or made with the means to prevent their firing by unau-

thorized users, and that by failing to use such means, made

it possible for guns stolen from private residences, gunstores

and other locations to be employed by unauthorized users in

violent criminal acts. Furthermore, defendants purposefully

and intentionally engaged in these activities knowing full

well that the citizens of the City of New Orleans, their Police

Officers and others would be substantially certain to suffer

injuries and substantial expenses due to shootings and

crimes which would result and to the threat of shootings and

crimes, and that the city and its people would be injured

thereby.

At all times pertinent the defendants purposefully

and intentionally engaged in these activities, and continue to

do so, knowing full well that the city, in its role of providing

protection and care for their citizens, would provide or pay

for additional police protection, emergency services, pen-

sion benefits, health care and other necessary facilities and

services due to the threat of use of defendants’ products

A-11

and for certain of their citizens and police officers harmed by

the use of the defendants” products, as well as lose substan-

tial tax revenue due to lost productivity and, in the absence

of performance of such duty by the defendants, that the city

itself thereby would be harmed.

1].

At all times pertinent, defendants, who account for

most of the handguns sold to the general public, have acted

in concert with respect to, among other things:

(a) their failure to develop and implement the

means to prevent their guns from being fired by unau-

thorized users,

(b) discouraging the development and implemen-

tation of the means to prevent guns from being fired by

unauthorized users;

(c) their failure to develop end implement other

safety features; and

(d) their failure to issue adequate warnings alert-

ing users to the risk of guns and to the importance of

proper storage of guns.

At all times pertinent, defendants have tacitly agreed,

colluded, or cooperated with respect to:

(a) their failure to develop and implement the

means to prevent their guns from being fired by

unauthorized users;

(b) discouraging the development and imple-

mentation of the means to prevent guns from being

fired by unauthorized users;

(c) their failure to develop and implement their

safety features; and

(d) their failure to issue adequate warnings

alterting users to the risk of guns and to the impor-

tance of proper storage of guns.

At all times pertinent defendants have adhered to

industry-wide standards or customs relating to:

(a) the failure to develop and implement the

means to prevent guns from being fired by unautho-

rized users;

(b) discouraging the development and imple-

mentation of the means to prevent guns from being

fired by unauthorized users;

(c) their failure to develop and implement other

safety features; and

(d) their failure to issue adequate warnings alert-

ing users to the risk of guns and to the importance of

proper storage of guns.

A-13

12.

VENUE

Venue for this action arises under Louisiana Code of

Civil Procedure Article 42 et seq. as certain defendant cor-

porations are domiciled in the Parish of Orleans and organ-

ized in the State of Louisiana and the actions of other co-

defendants took place in the City of New Orleans. As well,

the damages suffered by plaintiffs occurred in the City of

New Orleans, State of Louisiana.

13.

PARTIES

PLAINTIFFS:

PLAINTIFF MARC H. MORIAL is a resident of the

Parish of Orleans, State of Louisiana, and at all times perti-

nent was and is the Mayor of the City of New Orleans,

Louisiana. As mayor Marc H. Morial has the capacity to ini-

tiate legal action on behalf of the City and its police depart-

ment

PLAINTIFF THE CITY OF NEW ORLEANS is a

body politic, as constituted under the Constitution of the

State of Louisiana and operating under their Home Rule

Charter has the authority and obligation to initiate legal

actions through the person of the duly elected mayor, Marc

H. Morial. He does so hereby.

MANUFACTURER/SELLER DEFENDANTS:

A-14

Defendant SMITH AND WESSON CORP. is a cor-

poration organized in the State of Massachusetts, with its

principal place of business in the State of Massachusetts,

that manufactures and regularly sells, ships and advertises

firearms that can be fired by unauthorized users in the City

of New Orleans and State of Louisiana.

Defendant STURM, RUGER & CO. is a corporation

organized in the State of Delaware, with its principal place”

of business in the State of Connecticut, that manufactures

and regularly sells, ships and advertises firearms that can be

fired by unauthorized users in the City of New Orleans and

State of Louisiana.

Defendant BERETTA U.S.A. is a corporation organ-

ized in the State of Maryland, with its principal place of busi-

ness in the State of Maryland, that manufactures and regu-

larly sells, ships and advertises firearms that can be fired by

unauthorized users in the City of New Orleans and State of

Louisiana.

COLT’S MANUFACTURING CO. is a corporation

organized in the State of Connecticut, with its principal place

of business in the State of Connecticut that manufactures and

regularly sells, ships and advertises firearms that can be fired

by unauthorized users in the City of New Orleans and State

of Louisiana.

GLOCK INC. is a corporation organized in the State

of Georgia, with its principal place of business in the State of

Georgia, that manufactures and regularly sells, ships and

advertises firearms that can be fired by unauthorized users

A-15

in the City of New Orleans and State of Louisiana.

TAURUS INTERNATIONAL MANUFACTUR-

ING, INC. is a corporation organized in the State of F lorida,

with its principal place of business in the State of F lorida,

that regularly sells, ships and advertises firearms that can be

fired by unauthorized users in the City of New Orleans and

State of Louisiana.

SIGARMS, INC. is a corporation organized in the

State of New Hampshire, with its principal place of business

in the State of New Hampshire, that regularly manufactures,

sells, ships and advertises firearms that can be fired by unau-

thorized users in the City of New Orleans and State of

Louisiana.

LORCIN ENGINEERING CO., INC. is a corpora-

tion organized in the State of California, with its principal

place of business in the State of California, that regularly

manufactures, sells, ships and advertises firearms that can be

fired by unauthorized use in the City of New Orleans and

State of Louisiana.

BRYCO ARMS is a corporation organized in the

State of Nevada, with its principal place of business in the

State of California, that regularly manufactures, sells, ships

and advertises firearms that can be fired by unauthorized

users in the City of New Orleans and State of Louisiana.

B.L. JENNINGS, INC. is a corporation organized in

the State of Nevada, with its principal place of business in

the State of Nevada, that regularly sells, ships and advertis-

es firearms out can be fired by unauthorized users in the City

of New Orleans and State of Louisiana.

~ A-16

PHOENIX ARMS is a corporation organized in the

State of Arizona, with its principal place of business in the

State of California, that regularly manufactures, sells, ships

and advertises firearms that can be fired by unauthorized

users in the City of New Orleans and State of Louisiana.

DAVIS INDUSTRIES is a corporation organized in

the State of California, with its principal place of business in

the State of California, that regularly manufactures, sells,

ships and advertises firearms that can be fired by unautho-

rized users in the City of New Orleans and State of

Louisiana.

NAVEGAR, INC. (D/B/A/ INTRATEC) is a corpora-

tion organized in the State of Florida, with its principal place

of business in the State of Florida, that regularly manufac-

tures, sells, ships and advertises firearms that can be fired by

unauthorized users in the City of New Orleans and State of

Louisiana.

FMJ (A.K.A. ‘FULL METAL JACKET-), INC. is a

corporation organized in the State of Tennessee that regular-

ly manufactures, sells, ships and advertises firearms that can

be fired by unauthorized users in the City of New Orleans

and State of Louisiana.

ARMS TECHNOLOGY, INC. is a corporation

organized in the State of Utah, with its principal place of

business in the State of Utah, that regularly manufactures,

sells, ships and advertises firearms that can be fired by unau-

thorized users in the City of New Orleans and State of

Louisiana.

CASH AMERICA PAWN OF NEW ORLEANS

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Trade name Cash America of Louisiana is a corpora-

tion organized in the State of Louisiana, with its principal

place of business in the Parish of Orleans, State of Louisiana,

that regularly sells, and advertises firearms that can be fired

by unauthorized users in the City of New Orleans and State

of Louisiana.

MAGIC MONEY PAWN SHOP is a corporation

organized in the State of Louisiana, with its principal place

of business in the Parish of Orleans, State of Louisiana, that

regularly sells, and advertises firearms that can be fired by

unauthorized users in the City of New Orleans and State of

Louisiana.

NEW ORLEANS PAWN SHOP is a corporatica

organized in the State of Louisiana, with its principal place

of business in the Parish of Orleans, State of Louisiana, that

regularly sells, and advertises firearms that can be Fred by

unauthorized users in the City of New Orleans and State of

Louisiana.

ALBERT’S JEWELRY & LOAN PAWN is a corpo-

ration organized in the State of Louisiana, with its principal

place of business in the Parish of Orleans, State of

Louisiana, that regularly sells, and advertises firearms that

can be fired by unauthorized users in the City of New

Orleans and State of Louisiana.

PROFESSIONAL SPORTS SHOP, INC. is a corpo-

ration organized in the State of Louisiana, with its principal

place of business in the Parish of Orleans, State of

Louisiana, that regularly sells, and advertises firearms that

can be fired by unauthorized users in the City of New

Orleans and State of Louisiana.

A-18

TRADE ASSOCIATION DEFENDANTS:

Defendant AMERICAN SHOOTING SPORTS

COUNCIL, INC. (“ASSC”’) is a tax exempt business league

under section 5 01(c)(6) of the Internal Revenue Code with

its principal office in the State of Georgia. ASSC is an indus-

try trade association composed of firearms manufacturers

and sellers, including some or all of the manufacturer/seller

defendants.

Defendant NATIONAL SHOOTING SPORTS

FOUNDATION, INC. (“NSSF”) is a tax exempt business

league under section 501 (c)(6) of the Internal Revenue Code

with its principal office in Newtown, Connecticut NSSF is

an industry trade association composed of firearms manu-

facturers and sellers, including some or all of the manufac-

turer/seller defendants.

Defendant SPORTING ARMS AND AMMUNI-

TION MANUFACTURERS’ INSTITUTE, _ INC.

(“SAAMI”) is a tax exempt business league under section

501(c)(6) of the Internal Revenue Code with its principal

office in Newtown, Connecticut. SAAMI is an industry trade

association composed firearms; manufactures and sellers,

including some or all of the manufacturer/seller defendants.

14.

Plaintiffs incorporate all paragraphs by this refer

ence as if fully set forth.

Defendants are liable under the Louisiana Products

Liability Act LSA-R.S. 9:2800.56 et Seq. as their products

were unreasonably dangerous in design at the time these

weapons left the manufacturers’ control and such defects in

design were the proximate cause of the damages suffered by

plaintiffs.

Defendants are liable under the Louisiana Products

Liability Act LSA-P-S. 9:2800.56 et seq. as they failed to

employ alternative designs which would have reduced, if not

prevented many of plaintiffs’ damages. Their failure to

employ these alternative designs was a proximate cause of

the damages suffered by plaintiffs.

Defendants are liable under the Louisiana Products

Liability Act, LSA-R.S. 9:2800.56 et Seq. as they each knew

the likelihood that their products designs would cause plain-

tiffs’ injuries and they knew the gravity of these injuries.

Defendants are liable under the Louisiana Products

Liability Act, LSA-RS. 9.2800.56 et seq. as they each knew

or reasonably should have known that the gravity of the

damages which might be and which have been suffered by

plaintiffs would greatly outweigh the burden on them as

manufacturers and makers of adopting such alternative

designs, and the gravity of those damages would outweigh

the adverse effect if any, on the legitimate utility of the prod-

ucts.

Defendants are liable for. the damage caused as a

result of the design defects of their products. including the

damage incurred by plaintiffs.

ee ee Ce

A-20

Defendants’ conduct was a direct and proximate

cause of the injuries suffered by plaintiffs.

Plaintiffs suffered substantial actual injury and dam-

ages as the direct and proximate result of defendants wrong-

ful acts described above.

Plaintiff specifically alleges that alternative design

would have reduced the injuries suffered by the city, police,

emergency services, health services and other agencies

which he represents.

Plaintiffs incorporate all paragraphs reference as if

fully set forth.

Defendants are liable under the Louisiana Products

Liability Act LSA-R-S. 9:2800.56 et seq. as the products

were unreasonably dangerous in design, at the time these

weapons left the manufacturers’ control and such defects in

design were the proximate cause of the damages suffered by

plaintiffs and that alternative designs which incorporated

safety devices, including but not limited to devices which

would:

ws prevent these weapons from being fired by

unauthorized users;

A-21

2. alert users that a round was in the chamber;

3. prevent these weapons from being fired when the

magazine was removed from them.

Defendants are liable under the Louisiana Products

Liability Act LSA-P-S. 9:2800.56 et seq. as they each par-

ticipated in the design and/or manufacture of products which

were, defective because they did not incorporate available

safety devices and/or participated in the manufacture of

those defective products which were the proximate cause of

the damages suffered by plaintiffs.

Defendants are liable under the Louisiana Products

Liability Act, LSA-R-S. 9:2800.56 et seq. as they failed to

employ alternative designs incorporating safety devices

which would have reduced, if not prevented many of plain-

tiffs’ damages.

Their failure to employ these alternative designs

incorporating safety devices was a proximate cause of the

damages suffered by plaintiffs.

Defendants are liable under the Louisiana Products

Liability Act, LSA-R.S. 9:2800.56 et seq. as they each knew

the likelihood that their products’ designs would cause plain-

tiffs’ injuries and they knew the gravity of these injuries.

Defendants are liable under the Louisiana Products

Liability Act, LSA-R.S. 9:2800.56 et Seq. as they each knew

or reasonably should have known that the gravity of the

damages which might be and which had been suffered by

plaintiffs would greatly outweigh the burden on them as

A-22

manufacturers and makers of adopting such alternative

design, and the gravity of those damages would outweigh

the adverse effect, if any, on legitimate utility of the prod-

ucts.

16.

THIRD CAUSE OF ACTION

LSA-R.S. 9:2800,57 IANA PRODUCT

LIABILITY ACT

REASONABLY DANGERO ECA F INAD-

EQUATE WARNIN

Plaintiffs reassert all paragraphs above and allege

the same as if fully set forth herein.

Defendants are liable under the Louisiana Products

Liability ACT, LSA-R S. 9:2800 et seq. at the time the guns

were manufactured, and at the time they left the control of

defendants, the guns were unreasonably dangerous in the

hands of reasonably foreseeable users, including households

with children, not only because of their design, but because

they did not have a suitable warning or instruction as to the

risks of the weapon, including, but not limited to, adequate-

ly warning owners of the risks that minors, could gain access

to guns, how to properly store weapons, that a round may be

hidden in the chamber of a pistol, that their pistols could be

fired even with the ammunition magazine removed and the

attendant risks that could and did thereby occur.

In addition to fairing to provide an adequate or suit-

able warnings or instructions to users, including households

with children, defendants actively promoted and advertised

their guns in a manner which did not alert customers and

A-23

potential customers, as well as retail dealers who would be

expected to sell and recommend their guns, to the risks of

guns, and which, on the contrary, suggested that by purchas-

ing guns for their households they would become more safe,

that the design of the guns was safe, and that families could

safely store guns unlocked and accessible to minors.

For the foregoing reasons as well, defendants’ guns

were unreasonably dangerous.

As a direct and legal result of the inadequate warn-

ings, instructions, advertising and promotion of the guns,

plaintiffs suffered the damages alleged herein.

17.

FOURTH CAUSE OF ACTION

NEGLIGENCE IN THE SALE OF FIREARMS:

DEFENDANTS PAWN SHOPS AND RETAILERS

Plaintiffs reassert all paragraphs above and allege

the same as if fully set forth herein.

Defendants knew, or in the exercise of care should

have known, that at the time they left control of defendant

certain of the firearms it sold were unreasonably dangerous

in that they could be fired by unauthorized users, failed to

alert users that a round is in the chamber and/or could be

fired when the magazine is removed.

Defendants knew, or in the exercise of care should

have known, that at the time they left control of defendant,

certain of the firearms it sold were unreasonably dangerous

in the hands of reasonably foreseeable users, including

A-24

households with children, not only because of their design,

but because they did not have a suitable warning or instruc-

tion as to the risks of the weapon, including, but not limited

to, adequately warning owners of the risks that minor could

gain access to guns, how to properly store weapons, and the

attendant risks that could and did thereby occur.

It was reasonably foreseeable that firearms sold by

defendant because of their unreasonably dangerous design

and lack of suitable warnings, would be used to harm the

city’s citizens and that the city, in its role of providing pro-

tection and care for its citizens, would provide or pay for

additional police protection, emergency services, pension

benefits, health care and other necessary facilities and serv-

ices due to the threat of use of defendants’ firearms and for

certain of their citizens and police officers harmed by the use

of defendant’s firearms, as well as lost substantial tax rev-

enues due to lost productivity.

18.

NEGLIGENCE

[TRADE ASSOCIATIONS]

At all times pertinent, defendants ASSC, NSSF and

SAAMI have been associations in which some or all of the

manufacturer/seller defendants have been members.

At all times pertinent defendants ASSC, NSSF and

SAAMI have acted in concert with, tacitly agreed with, col-

luded, cooperated with and aided and abetted the manufac-

turer/seller defendants, with respect to, among other things:

(a) their failure to develop and implement the

A-25

means to prevent their guns from being fired by unau-

thorized users;

(b) discouraging the development and imple-

mentation of the means to prevent guns from being

fired by unauthorized users;

(c) their failure to develop and implement other

safety features; and their failure to issue adequate

warnings alterting users to the risk of guns and to the

importance of the proper storage of guns.

It was reasonably foreseeable that, as a result of the

above-described conduct of defendants ASSC, NSSF and

SAAMI the manufacturer/seller defendants would continue

to manufacture and/or sell guns that because of their unrea-

sonably dangerous design and lack of suitable warnings,

would be used to harm the City’s citizens and that the City,

in its role of providing protection and cam for its citizens,

would provide or pay for additional police protection, emer-

gency services, pension benefits, health care and other nec-

essary facilities and services due to the threat of use of

defendants’ firearms and for certain of its citizens and police

officers harmed by the use of defendants’ firearms, as well

as lost substantial tax revenues due to lost productivity.

19.

DAMAGES

Plaintiffs re-allege and incorporate herein the forego-

ing allegations. As a direct and proximate result of the

actions and occasions of the defendants as alleged above,

plaintiffs have been obligated to pay and have paid millions

of dollars in the past to enhance police protection, emer-

A-26

gency services, police pension benefits, medical care, facili-

ties and services due to the threat of use of defendants’ prod-

ucts and for certain of those aforementioned citizens injured

by the defendants’ actions and products, and have jost sub-

stantial tax revenue due to lost productivity.

The city was legally obligated to pay the aforemen-

tioned sums and did not conduct itself in any wrongful man-

ner in being so obligated to pay and in paying the aforemen-

tioned sums.

To prevent an unjust enrichment the defendants

should indemnify the city for its enhancement of police pro-

tection, emergency services, police pension benefits, med-

ical care, facilities and services, as well as lost tax revenues,

due to defendants’ products and actions.

Wherefore the plaintiffs pay for relief and judgment against

the defendants, jointly and in solido as follows:

a. For damages in an amount which is sufficient to

provide restitution and repay the plaintiffs for the sums they

have expended on account of the defendants’ wrongful con-

duct with said amount to be determined at trial;

b. For damages in restitution for the sums of money to

be paid by plaintiffs in the future on account of the defen-

dants’ wrongful conduct

Cc. For prejudgment interest, as well as plain-

tiffs’ reasonable attorneys’ fees, expert witness fees and

other costs of this action;

A-27

d. For punitive damages in such amount as will suffi-

ciently punish the defendants for their conduct and as ill

Serve as an example to prevent a repetition of such conduct

in the future;

e. For such other and further extraordinary equitable,

declaratory and/or injunctive relief as permitted by taw as

necessary to assure that plaintiffs have an effective remedy;

and

f. For such other and further relief, as the Court

deems just and proper, to which plaintiffs may be entitled.

Plaintiff requests a trial by jury.

WHEREFORE, plaintiff prays that defendants be

cited with petition and after all due process had, judgment

be entered in favor of plaintiffs for all damages, including

judicial interest costs an attorney fees.

Respectfully submi:ted,

/S/Wendell H. Gauthier DENNIS A, HENIGAN

Wendeii H. Gauthier (Bar 5984) BRIAN J. SIEBEL

GAUTHIER, DOWNING, LaBARRE, JONATHAN E. LOWY

Personally and for All Participating Legal Action Project

Castano Tobacco Attomeys Center To Prevent

3500 N. Hullen Street Handgun Violence

Metairie, Louisiana 70002 1225 Eye Street, N.W,,

Telephone: (504) 456-8600 Suite 1100

Washington, D.C. 20005

Telephone (202) 289-7319

A-28

EDWIN R. MURRAY

MURRAY, DARNELL & ASSOCIATES

1540 N. Broad Street

New Orleans, Louisiana 70119

(504) 945-0042

KENNETH M. CARTER

CARTER & CATES

1100 Poydras Street

Suite 1230

New Orleans, Louisiana 70163

(504) 569-2005

ATTORNEYS FOR PLAINTIFFS

JOSEPH M. BRUNO

BRUNO & BRUNO

825 Baronne Street

New Orleans, Louisiana 70113

Telephone: (504) 525-1335

CALVIN C. FAYARD, JR.

FAYARD & HONEYCUTT

519 Florida Boulevard

Denham Springs, Louisiana 70726

Telephone: (504) 664-4193

RUSS M. HERMAN

MAURY HERMAN

STEPHEN HERMAN

HERMAN, HERMAN, KATZ & COTLAR

820 O’Keefe Avenue

New Orleans, Louisiana 70113

Telephone: (504) 581-4892

A-29

WALTER J. LEGER JR.

LEGER& MESTAYER

9th Floor, 600 Carondelet Street

New Orleans, LA 70130

Telephone: (504) 588-9043

STEPHEN B. MURRAY

MURRAY LAW FIRM

909 Poydras St, Suite 2550

New Orleans, LA 70112

Telephone: (504) 525-8100

ROBERT L REDFEARN

SIMON, PERAGINE, SMITH &

REDFEARN

1100 Poydras St, 30th FI.

New Orleans, LA 70163

Telephone: (504) 569-2030

MICHAEL X ST. MARTIN

ST. MARTIN & WILLIAMS

Post Office Box 2017

Houma, LA 70361-2017

Telephone: (504) 876-3891

W. HUGH SIBLEY

Post Office Box 399

Greensburg, LA 70441

Telephone: (504) 222-6151

RAUL BENCOMO

BENCOMO & ASSOCIATES

639 Loyola Ave., Suite 2110

New Orleans, LA 70113

Telephone: (504) 529-2829

A-30

STANLEY M. CHESLEY

WAITE, SCHNEIDER, BAYLESS &

CHESLEY

1513 Central Trust Tower

Cincinnati, OH 45202

Telephone: (513) 621-0267

JOHN P. COALE

COALE, COOLEY, ET AL

818 Connecticut Ave., N.W., Suite 857

Washington, D.C. 20006

Telephone: (202) 887-4770

DONALD HILDRE

DAUGHTERY & HILDRE

2550 Sth Avenue, Suite 600

San Diego, CA 92103

Telephone: (619) 232-9131

JOHN S. KELLER

639 Loyola Ave., Suite 1140

New Orleans, LA 70113

Telephone: (504) 568-9173

PLEASE SERVE.

CASH AMERICA PAWN OF NEW

ORLEANS TRADE NAME CASH AMERI-

CA OF LOUISIANA through their registered

agent Theresa Kahbau clb Capital Document

Service, Inc, 8550 United Plaza Blvd. Suite

702A Baton Rouge, Louisiana 70809

A-31

Magic Money Pawn Shop

4628 Downman Road

New Orleans, Louisiana 70126

New Orleans Pawn Shop

4730 Magazine Street

New Orleans, Louisiana 70115

Albert’s Jewelry & Loan Pawn

4640 S. Claiborne Avenue New Orleans,

Louisiana 70125

Professional Sports Shop, Inc. 920 Julia

Street New Orleans, Louisiana 70113

SERVICE WILL BE MADE THROUGH

THE LOUISIANA LONG ARM

STATUTE:

SMITH AND WESSON CORPORATION

BERETTA U.S.A

COLTS MANUFACTURING COMPANY

GLOCK INC.

TAURUS INTERNATIONAL

MANUFACTURING, INC.

SIGARMS, INC.

LORCIN ENGINEERING COMPANY, INC.

A-32

B.L. JENNINGS, INC.

PHOENIX ARMS

BRYCO ARMS

DAVIS INDUSTRIES

NAVEGAR, INC. d/b/a INRACTEC

FMJ (AKA ‘FULL METAL JACKET). INC.

ARMS TECHNOLOGY, INC.

AMERICAN SHOOTING SPORTS COUN-

CIL, INC. (-ASSC-)

NATIONAL SHOOTING SPORTS FOUN-

DATION, INC. ("NSSF"))

SPORTING ARMS AND AMMUNITION

MANUFACTURES’ INSTITUTE, INC.

(“SAAMI”)

A-33

APPENDIX B

CIVIL DISTRICT COURT FOR

THE PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 98-18578 DIVISION “D”

MAYOR MARC H. MORIAL and

THE CITY OF NEW ORLEANS

VERSUS

SMITH & WESSON, CORP, et al.

JUDGMENT AND REASON FOR JUDGMENT

This court has been asked to decide whether

the City of New Orleans and Keith M. Ignatik have a right

of action and/or cause of action against firearm manufac-

tures and sellers of firearms as well as the constitutionality

of two recently enacted statutes by the Louisiana legislature-

c, [.a. R.S. 40:1797.1 and La. R.S, 9:2900.60

In light of the evidence, memoranda and

arguments, this court finds that all of defendants’

Peremptory Exceptions of No Right of Action and No Cause

of Action as they apply to plaintiffs should be DENIED for

the reasons explained below.

A-34

REASONS FOR JUDGMENT

I. PROCEDURAL HISTORY

On October 30, 1998, plaintiffs Mayor Marc

H. Morial and the City of New Orleans filed this suit against

Smith and Wesson Corp., Sturm, Ruger & Co., Inc., Glock,

Inc., Taurus International Manufacturing, Inc., Phoenix

Arms, Bryco Arms, B.L. Jennings, Inc., Colt’s

Manufacturing Co., Inc., Arms Technology, Inc., Navegar,

Inc., Beretta U.S.A Corp., Sigaram, Inc., Lorcin Engineering

Co., Inc., Davis Industries, FMJ, Inc., Cash America Pawn

Shop, Magic Money Pawn Shop, New Orleans Pawn Shop,

Albert’s Jewelry & Loan Pawn, American Shooting Sports

Council, Inc., National Shooting Sports Foundation, Inc.,

Sporting Arms and Ammunition Manufacturers’ Institute,

Inc. seeking damages for expenses the City of New Orleans

has incurred due to defendants’ alleged defective products

and alleged unlawful actions, respectively.

On November 23, 1998, defendants Smith &

Wesson and Ruger removed this suit to tile United States

District Court for the Eastern District of Louisiana. After

assignment to the Honorable Ginger Berrigan, an order was

issued governing the remand procedure which set a briefing

schedule for the Motion to Remand, filing of motions, filing

of answers, stayed ali discovery, and all other pertinent mat-

ters unrelated to the remand procedure. On August 18, 1999,

Justice Berrigan remanded the action to state court.

On August 18, 1999, Defendant Glock, Inc.

A-35

filed its first Peremptory Exception of No Right of Action

and No Cause of action. Thereafter, the remaining defen-

dants filed timely motions which adopted all of Glock’s

arguments. On September 7, 1999, plaintiffs filed a Motion

for Leave to File an Amended Petition which added new

defendants and additional causes of action. On October 4,

1999, Defendants manufacturers filed their Supplemental

Motion and Supporting Memorandum in Opposition to

Plaintiff’s Amended Petition.

On September 8, 1999, defendants trade asso-

ciations filed Declinatory Exceptions of Lack of Personal

Jurisdiction. On November 19, 1999, oral arguments were

heard and the Court granted their Declinatory Exceptions

dismissing the remaining defendant trade associations from

the pending lawsuit.

On November 2, 1999, Keith Ignatik, filed a

motion to intervene into the present lawsuit which was

granted by then District Court Judge Pro Tern Piper Griffin

on November 10,1999. On December 7, 1999, defendant

manufacturers filed a Peremptory Exception of No Right of

Action against Ignatik’s intervention.

On January 28, 2000, both parties made oral

arguments on their respective Peremptory Exceptions of No

Right and No Cause of Action. At the close their arguments,

the Court stated that it would render its judgment and rea-

sons for judgment 30 days from the date of the hearing.

A-36

II. PLAINTIFFS HAVE A RIGHT OF ACTION

UNDER, ACT 291, LOUISIANA

REVISED STATUTE 40:1797.1.

A. § 1797.1 cannot be applied retroactively

because plaintiffs have a vested right to bring suit

under the City of New Orleans’ home rule

charter.

Generally, Louisiana courts have held that a right is vested

when:

“the right to enjoyment, present or prospective, has

become the property of some particular person or

persons as a present interest. The mght must be

absolute, complete and unconditional, independent

of contingency, and a mere expectancy of future ben-

efit or contingent interest in property ... does not

constitute a vested right.” Rico v. Vangundy, 461

So.2d at 462, citing Tennant v. Russell, 214 La. 1046,

39 So.2d 726, 728 (1949), and Draughn v. Mart, 411

So.2d 1188, * 12, Adams v. City of Baton Rouge, 673

So.2d 624, 632 (La. App. 4th Cir.), writ denied, 415

So.2d 944 (La. 1982).

The power of the City of New Orleans to initiate

a lawsuit is reserved by Louisiana Constitution Article VI, §

4 and its Home Rule Charter. The New Orleans Home Rule

Charter preserves a broad range of powers for the City. In

Section 2-10 /, Powers, it provides, in pertinent part:

“(1) The city shall retain, to the same extent as if

herein repeated, all rights, powers, privileges and

A-37

authority that it has or could claim under the law of

this state at the time of the adopiing hereof, except

as herein expressly modified.

(4) The City, in addition to the rights, powers, privi-

leges, and authority expressly conferred upon it by

this Charter, shall have the right, power, privilege

and authority to adopt and enforce local police, san-

itary and similar regulations, and to do and perform

all of the acts pertaining to this local affairs property

and government, which are necessary or proper in

the legitimate exercise of its corporate powers and

municipal functions.”

These provisions, in essence, provide for a continu-

ing claim and subsequent enlargement of the utmost powers

of initiation available to the City under the constitution, City

of New Orleans v. Board of Commissioners, 640 So,2d 23 7

(La. 1994).

These broad powers are secured by the Louisiana

Constitution Article V1, § 4 which provides, in pertinent

part:

“Every home rule charter or plan of government

existing or adopted shall remain in effect and may be

amended, modified or repeated as provided therein.

Except as inconsistent with this constitution, each

local governmental subdivision which as adopted

such a home rule charier or plan of government shall

retain the powers, Junctions and duties in effect

when this constitution is adopted. If its charter per-

mits, each of them shall have the right to powers and

functions granted to other local governmental subdi-

visions,” La. Const. Art, VI, § 4. (emphasis added)

~

A-38

1. Plaintiffs’ right to bring suit against defen-

dants is not preempted by Louisiana Revised

Statute 40:1796.

In Louisiana, preemption question are decid-

ed under the same analytic framework as used by federal

courts deciding federal preemption questions. Hildebrand v.

City of New Orleans, 549 So.2d 1218 (La. 1989). In consid-

ering the scope of preemption in an express preemption sit-

uation: “Congress’ enactment of a provision defining the

pre-emptive reach of a statute implies that matters beyond

that reach are not pre-empted,” Cipollone v. Liggett, Inc.,

505 U.S. 504, 112 S.Ct. 2608, 2618 (1992).

Defendants argue that plaintiffs do not have a

vested right because § 1796 preempts the City of New

Orleans from adopting ordinances or regulation of the sale of

firearms or components of firearms that are more restrictive

than those of the state. Furthermore, they argue that La. R.S.

§ 1797.1 furthers the goal of § 1796 by barring a City from

seeking through litigation that which it is prohibited from

adopting by ordinance.

This argument is without merit for two dis-

tinct reasons. First, § 1796 specifically addresses ordinances

and regulations, not lawsuits. It provides, in pertinent part:

."No governing authority of a political subdivision

shall enact after July 15, 1985, any ordinance or reg-

ulation more restrictive than state law concerning in

any way the sale, purchase, possession, ownership,

transfer, transportation, license, or registration of

firearms, ammunition or components of firearm or

ammunition...”

A-39

There was no express prohibition against a

political subdivision from suing a gun manufacturer at the

time this suit was filed in 1998. As mentioned above, extend-

ing the scope of preemption beyond its clear boundaries has

been disfavored by the Court.

Furthermore, defendants attempt to argue that

plaintiffs’ lawsuit is synonymous with an “ordinance” or

“regulation” as used in § 1796, Jurisprudence has proven

otherwise. In Chapman Bordelon, 242 La. 637 (La. 1962),

the Supreme Court explained,

“Generally the word ‘ordinance’ is understood to

mean a legislative act of a municipality, as the Court

of Appeal construed it. This is not necessarily so in

all cases, however, for, as the judge of the Court of

Appeal who dissented in the instant case said, ‘ordi-

nance’ is often used as a generic term which encom-

passes all of the acts of a municipal board or council

whether administrative or legislative in nature...

Thus it will be seen that the word’ ‘ordinance’ can

have a very broad or quite a narrow meaning; that it

can refer to ail of the legislative enactments of a

municipality, such as motions, resolutions, decrees,

laws, etc., or can simply mean a permanent rule of

action commonly known as a law.” See also

Melancon v. State Board of Education, 249 La. 604,

188 So.2d 419, 420 (La. 1966).

Despite this liberal interpretation of the word

ordinance, the Supreme Court has made no indication that it

Should encompass a municipality’s ability to bring suit

against another entity. As a result, the plaintiffs were within

A-40

the scope of their vested rights as provided for in Article VI,

§ 4 and the home rule charter.

2. Plaintiffs’ lawsuit does not abridge the State’s Police

Power.

The legislature by a general law may deny or

revoke the initial delegation of home rule power functions;

but no law may not revoke, change or affect a home rule

government’s discretion to deploys its powers and functions

unless it is necessary to prevent an abridgement of’ the rea-

sonable exercise of the states police power. Francis v

Morial, 455 So.2d 1168 (La. 1984).

Defendants have failed to prove that the act of

the legislature in enacting a retroactive provision in § 179

1.1 was reasonably necessary and appropriate for the accom-

plishment of a legitimate object of its police power. In

Francis, the Supreme Court held that “any state law which

changes or affects i.e., produces an alteration in or material

influence upon, the local government’s structure and organ-

ization or the distribution or redistribution of its powers and

functions is prohibited.” Jd. at 1172.

Louisiana Constitution Article VI, §9 acts as

a counter balance to §4 providing that “notwithstanding any

provision of this Article, the police power of the state shall

never be abridged.” However, state’s police power can only

extend to such measures the are reasonable under a] I cir-

cumstances. Francis, 455 So.2d at 1172; Schwegmann Bros,

v. La, Bd. of Alcoholic Bev. Control, 216 La. 148, 43 So.2d

248 (1949) In order to be reasonable, the means adopted

A-4]

must be reasonably necessary and appropriate for the accom-

plishment of legitimate objects falling within the scope of

the power. /d. at 1172. Importantly, to sustain legislation

under tile police power the courts must be able to see that its

operation tends in some degree to prevent an offense or evil

or other is to preserve public health, morals, safety or wel-

fare and if a statute discloses no such purpose, has no real or

palpable invasion of rights secured by fundamental law, it is

the duty of the courts so adjudgea n thereby give effect to the

constitution. Id. at 1173; Town of Eros v. Howell, 137 La.

342, 68 So. 632 (La. 1915); Hi-Lo Oil Co. v. City of Crowley,

274 So.2d 673 (La. 1973); State ex rel Galle v. N.O., 113 La.

371 36 So. 999 (1904).

This court finds that § 1797. 1, in effect, invades the funda-

mental rights reserved to the City of New Orleans. On its

face, it addresses a topic of interest that reaches beyond this

City’s boundaries. Generally, the regulation of firearms has

been considered to be in the interest of the public and as an

exercise of the police power vested in the legislature. State v.

Hamlin, 497 So.2d 1369 (La. 1986). However, this police

power is not absolute. Our courts have put in place an

express test of reasonableness that cannot be ignored. Here,

the legislature has reached beyond the scope of its police

power to diffuse the present effect that the City’s lawsuit

could have on the safety of its citizens prospectively and the

State as a whole by retroactively applying § 1497. 1.

Defendants cite many cases which stand for the gen-

eral proposition that the state may regulate firearms. This

right cannot be denounced. However, this court believes the

retroactivity of this law is designed to eliminate this lawsuit

A-42

for the immediate benefit of a certain class of private citi-

zens, not the general public welfare. Thus, it is unconstitu-

tional.

B. The Retroactive Provision of §1497.1 is a

Prohibited Special Law

Article 111 § 12 provides, in pertinent part,

“Section 12. (A.) Prohibitions. Except as otherwise

provided in this constitution, the legislature shall not

pass a local or special law....(3) concerning any civil

or criminal actions....”” La. Const. Art. 111, 12(A)(3).

(emphasis added)

The prohibition against a local or special law is

intended to reflect a policy decision that legislative resources

and attention should be concentrated on matters of general

interest and that purely local matters should be left to local

governing authorities. Kimball v. Allstate Ins. Co, 712 So.2d

46 (La, 1998); H. Alston Johnson 11, Legislative Process, 36

La. L.Rev. 549, 549 (La. 1976); Louisiana Paddlewheels v,

Louisiana Riverboat Gaining Commission, 94-2015, p.7

(La. 11/30/94), 646 So.2d 885. Thus, the Court’s inquiry into

whether § 1797. 1, Section 2 is an unconstitutional local or

special law begins with a determination of whether the law

is, in fact, local, special or general law.

Jurisprudence provides the most guidance in inter-

preting this constitutional provision. Generally, a statute is

considered to be local if it operates only in a particular local-

ity or localities without the possibility of extending its

A-43

coverage to other areas. When the law is limited to certain

parishes, it is immediately suspect as a local law. Concerned

Business and Property Owners of DeSoto, Inc. v, DeSoto

Parish School Board, 531 So,2d 436, 442 (La. 1988). In con-

trast, a general law operates equally and uniformly upon all

persons brought within the relations and circumstances for

which it provides or operates equally for a designated class

which has been founded on a veasonable classification. Slate

v. Labauve, 359 So.2d 181 (La. 1978). A general law may

confine its coverage to a class or subset of local governments

if the method of classification is reasonable. Kimball v.

Allstate Ins. Co., 712 So.2d 46 (La. 1998), citing Lee

Hargrave, “Statutory “ and “Horatory “ Provisions of the

Louisiana Constitutional of 1974, 43 La. L.Rev. 647, 668

(La. 1983).

However, even though a statute may not constitute a

local law under the above provisions, it may still be prohib-

ited by La. Const. Art. 111, § 12 if it isa special law dealing

with one of its enumerated topics. Generally, a special law

affects only a fraction of the persons or a portion of tile prop-

erty by a classification, granting privileges to some persons

while denying them to others. More importantly, it confers

particular privileges, or imposes peculiar disabilities or bur-

densome conditions in the exercise of a common right upon

a class of persons arbitrarily selected from the general body

of those who stand in precisely the same relation to the sub-

ject of the law. Kimball, 712 So.2d at 5 1: Labauve, 359

So.2d at 182; Teachers’ Retirement Systems of Louisiana v.

Vial, 317 So.2d 179 (La. 1975) (“A statute is special if it

is ... directed to secure some private advantage or advance-

ment for the benefit of private persons.”),

A-44

Considering the aforementioned criteria, it is

evident that § 1797.1 is not a local law, There is no indica-

tion that its application is limited to any particular city in the

state, but appears to be applicable to the entire state.

However, Section 2 of § 1797.1 is a special law. First, it sin-

gles out all existing or actions pending on its effective date

and all claims arising or action filed on and after the effec-

tive date of the statute, Clearly, Section 2 is not a general law

because its privileges and restrictions affect only a portion of

the classification (here the City of New Orleans) and there

appears to be no reasonable basis for this classification

except to eliminate plaintiffs’ lawsuit.

Second, Subsection (2) concerns a prohibited

subject listed under La. Const. Art. 111, Section 12(A)(3),

namely, existing civil actions. In Kimball v. Allstate

Insurance Co, 712 So.2d 46 (La. 1998), the Supreme Court

recently ruled that a portion of a statute could be held uncon-

stitutional because it was a special law. Therein, plaintiffs

filed suit as a result of an automobile accident that occurred

before the effective date of Act 598, Jury Trial Prohibited,

which at the time of the filing of the suit, limited jury trials

in East Baton Rouge Parish. Plaintiffs attacked the constitu-

tionality of the statute alleging that Act 598 could not be

applied retroactively to the date of original suit in 199 1. The

trial court held that the Act was a special law and unconsti-

tutional, The First Circuit Court of Appeals remanded the

case to the trial court for a determination of the constitution-

ality of Section C of Act 598. The trial court upheld its ini-

tial decision and the case was directly appealed to the

Supreme Court.

A-45

The Supreme Court agreed with the trial

court’s decision. Specifically, the court classified Section C

of Act 598 as special because of its original reference to any

and all suits pending in East Baton Rouge Parish and more

importantly, because the section expressly affected pending

civil actions:

“This court has consistently defined this portion of

the Constitution to prohibit the legislature from pass-

ing a local or special law which affects any particu-

lar lawsuit. Everett v. Goldman, 359 So.2d 1256 (La.

1978). (The “concerning any civil action” prohibi-

tion applied only where there is “concerned a distinct

lawsuit or lawsuits or where the group of affective

litigants or lawsuits has not rationally distinctive

characteristics.” Jd; State v, McCue, 14] La. 417, 75

So. 100 (1917);,5lale v. Feller. 141 La. 58, 74 So.

629 (1917) ... Subsection (C) concerns and affects

not only an individual lawsuit, but more egregiously,

any and all lawsuits in which the City of Baton

Rouge of the Parish of East Baton Rouge is made a

defendants”. Id. at 53.

In comparison, Section 2 of § 1797.1 does not

expressly refer to the lawsuit filed by plaintiffs. Nonetheless,

its unnamed reference to “all pending lawsuits” cannot be

mistaken. Facially, Act 219 applies to every political subdi-

vision in this state, but Section 2 makes a distinct classifica-

tion. In light of the wide spread publicity surrounding this

lawsuit and its de novo presence in our judicial system, this

court does not find the absence of an express mentioning of

the present law suit persuasive enough to ignore the logical

rationale in Kimball.

A-46

Furthermore, defendants have openly admitted that the leg-

islation was enacted in reaction to the suit filed by the city of

New Orleans. (See Memorandum in Support of Peremptory

Exceptions of No Right of Action and No Cause of Action, p.

15). Subsection 2 purposely and directly affects

the one and only lawsuit filed against gun manufacturers in

the State of Louisiana. Thus, its retroactive application is

unconstitutional.

Also, defendants asserted that there is a rea-

sonable basis for distinguishing between the members of the

classification. Namely, the preexisting preemption of State

law, the need for uniformity of regulation of firearm and the

protection of citizens’ rights to possess arms for their

defense. This court finds these reasons are without merit for

the reasons addressed above.

Cc. §1791.1 is a substantive law and must not

be applied retroactively.

The general rule against retroactive applica-

tion of legislative enactments and its exception, is codified

in LA. C.C. art, 6: “In the absence of contrary legislative

expression substantive laws apply prospectively only,

Procedural and interpretive laws apply both prospectively

and retroactively, unless there is a legislative expression to

the contrary.” Additionally, the Code provides that no statute

is retroactive unless it is expressly stated.-In Cole v. Celorex

Corp., 599 So.2d 1058 (La. 1992), the Court added two addi-

tional considerations: 1) whether an express legislative

intent regarding retrospective or prospective apnlication, If

such intent is expressed, the inquiry ends; 2) if no intent is

A-47

expressed, the enactment must be classified accordingly.

However, an important exception to this rule exists: even

where the legislature has expressed its intent to give a statute

retroactive effect, the law may not be applied retroactively if

it would impair contractual obligations or disturb vested

rights. St. Paul Fire and Marine Ins. Co, v. Smith, 609 So.2d

809 (La. 1992); Segura v. Frank, 630 So.2d 714 (La. 1994):

Cole v, Celotex Corp. 599 So.2d 1058 (La. 1992).

Section 2 of § 1797.1 states that this Act shall

apply “ to all claims existing or actions pending on its effec-

tive date and all claims arising or action filed on and after its

effective date,” Based on the test established in Cole, our

inquiry should end. But, in light of aforementioned reasons,

this statute should not be applied retroactively because it will

divest the plaintiffs of their vested rights because of its sub-

stantive nature.

Substantive laws establishes new rules, rights

and duties or change existing ones, while interpretive laws

merely establish the meaning the statute had from the time

of its enactment. St. Paul Fire & Marine Ins. Co. v. Smith,

609 So.2d at 817. The Supreme Court has consistently held

that even “where the legislature has expressed its intent to

give a substantive law retroactive effect, tile law may not be

applied retroactively if it would impair contractual obliga-

tions or disturb vested rights.” Segura v, Frank, 93-1271 (La.

1/14/94) 630 So.2d 714. See e.g. Lou 1, Haley, 370 So.2d

521 (La. 1979); Succession of Lambert, 210 La. 636,

28So.2d 1 (1949); Shreveport Long Leaf Lumber Co. y.

Wilson, 195 La. 8 14, 197 so. 566 (1940).

A-48

A comparison between the pre-existing

statute, § 1796, and § 1797.1 reveals the latter statute adds

new rules because it specifically addresses lawsuits. The for-

mer statute only addressed the enactments of an ordinance or

regulation which, as established above, is not synonymous

with a suit for damages. More importantly, § 1797.1

changed the rights of a political subdivision to bring suit

against a firearm manufacturer. Previously, § 1796 did not

expressly preempt the right of a political subdivision to

bring suit against any firearm manufacturer.

Finally, as established above, plaintiffs have a

vested right to bring suit that is secured by its home rule

charter and the Louisiana Constitution Article VI, § 4. This

legislation divests the City of New Orleans of the right to

initiate litigation and changes the pre-existing law and the

rights secured therein. Thus, it is unconstitutional.

D. Retroactive Application of §1797.1 would

violate the Contract Clause, Bill of Attainder,

Fourteenth Amendment of Due Process

Clause, and Equal Protection Clause.

Plaintiffs argued that the retroactive applica-

tion or § 1797." would impair its federal and state constitu-

tional rights, Both parties addressed the contract clause, bill

of attainder, due process and equal protection issues in their

briefs. None of the parties raised the issue of ex post facto

laws; thus, the court refrains from addressing this issue.

1. The City of New Orleans does not have a right

of action under the protections of Article I of

federal or state constitutions.

A-49

The United States Constitution Art. 1, § 10(1) pro-

vides as follows:

“No state shall...pass any B:!1 of Attainder, ex post

facto law, or Law impairing the Obligation of

Contracts ......

U.S. Const. Art 1, § 1 0(1)

The Supreme Court has described the provisions of

U.S. Constitution Article 1, § 10 and Louisiana Constitution

Art. 1, § 23 as being “virtually identical” and “substantially

equivalent” to federal constitutional provisions. Rousselle,

633 So.2d at n.9; Segura v. Frank, 630 So.2d 714 (La. 1994);

Board of Commissioners of Orleans Levee District v.

Department of Natural Resources, 496 So.2d 281 (La.

1986).

Defendants argued that plaintiffs lack stand-

ing to assert constitutional claims under Article I of the

Louisiana Constitution, due process clause or equal protec-

tion clause citing recent Supreme Court cases to support

their argument. Their argument is partially correct.

In Rousselle v, Plaquemines Parish School

Board, 633 So.2d 1235 (La. 1994), the Supreme Court con-

sidered the retroactive application of an amendment to

teacher tenure laws. Similar to the plaintiffs present claim,

the school board contended that the retroactive application

impaired its vested contractual rights, Therein, the court held

that the state may pass retrospective laws waiving or impair-

ing its own rights or those of its subdivisions, or imposing

on its subdivisions new liabilities as long as the

A-50

rights of private citizens are not infringed. /d. In particular,

the Court acknowledged a'well settled principle that cannot

be ignored: “The inhibitions found in Article 1, 23 of the

Constitution are protections for the citizens and not for the

state,” Id.

Despite this court’s opinion regarding the

plaintiffs home rule rights, it finds that the City of New

Orleans did not have the right to assert the constitutional

protections of Article 1, §23, i.e., the Contract Clause and

Bill of Attainder. As explained in Kimball, these constitu-

tional protections are reserved to private citizens. As a result,

plaintiff Keith M. Ignatik has a right of action under these

provisions.

As such, there is no need to employ the four

step contract clause analysis to determine whether § 1797.1

unconstitutionally impairs its contractual obligations.

2. Retroactive Application of §1797.1 would

violate the Due Process Clause of the

Fourteenth Amendment and Equal

Protection Clause.

The Supreme Court recognized that applica-

tion of legislative enactments has constitutional implications

under the due process and contract clauses of both the

United States and Louisiana Constitutions. Rousselle, 633

So.2d 1235 at 1244. As established above, the City of New

Orleans does not have standing under Article I of United

States or Louisiana Constitutions, But, their arguments

under the Due Process Clause and Fourteenth Amendment

have merit.

A-51

Foremost, it is well settled among our courts that “the

right to file a damage suit in tort is a vested property right.

If we were to give retroactive effect to the amending lan-

guage of the act there challenged, we would effectively ter-

minate the plaintiff’s right and in so doing give an unconsti-

tutional interpretation to the statute.” Green v. Liberty

Mutual Ins. Co,, 3 52 So. 2d 3 66 (La. App. 4” Cir. 1977).

The right to file a damage suit in tort is a vested property

right protected by the guarantee of due process. Walls v.

American Optical Corp., 98-0455 (La. 9/8/99); 740 So.2d

1262, 1263 (La. 1992); Crier v. Whitecloud, 496 So.2d 305

308 (La. 19886); Lott v. Haley, 370 So.2d 521, 524 (La.

1979). To do so would divest plaintiffs of their fundamental

right to have their entire case decided by a trier of fact or

jury.

Second, the test required to challenge legislative clas-

sification mandates that legislative classification must be

rationally related to a legitimate governmental interest.

Manuel v. State, 692 So.2d 320 (La. 1996); Department of

Agriculture v. Moreno, 413 U.S. 528, 533 (1973).

Defendants cite numerous reasons why the legislature felt

this statute furthered legitimate state interests. Arguably, the

legislature’s interests are relevant. But, the retroactive provi-

sion of § 1797.1 breaks the connection, i.e., fails to establish

the rational relationship, between the ‘ statute and the legis-

lature’s interests. In effect, the retroactive provision ignores

the vested rights of plaintiffs to secure the immediate inter-

' ests of the defendants, not the state. This is not rational nor

is it constitutional.

E. Plaintiff Keith Ignatik has a right of action

against defendants.

A-52

Defendant manufacturers filed a separate Peremptory

Exception of No Right of Action against plaintiff Keith

Ignatik on December 7, 1999. This’ exception is filed in

reaction to this court (under District Court Judge Pro Tern

Piper Griffin) granting Ignatik the right to intervene in the

present suit. In comparison, Defendants’ Memorandum in

Opposition to Motion to Intervene, filed November 12,

1999, contains virtually the same law and arguments as its

Peremptory Exception of No Right of Action. Thus, this

court stands behind Judge Griffin’s past decision. It is rea-

sonable to assume that if plaintiff was allowed to intervene,

the court carefuily evaluated plaintiff’s right of action under

La. Code Civ. Pro. art. 1091 and applied all relevant tests

accordingly. This is just a disguised attempt by defendants’

to reargue their claims. Thus, defendants’ subsequent

Peremptory Exception of No Right of Action is moot.

Ill. PLAINTIFFS HAVE A CAUSE OF ACTION

AGAINST MANUFACTURERS AND

SELLERS OF FIREARMS UNDER ACT

1299, LOUISIANA RE, VISED

STATUTE 9:2800.60.

A. Plaintiffs state a cause of action under prior ©

Louisiana Product Liability law.

The function of an exception of no cause of action is

to test legal sufficiency of the petition by determining

whether the law affords a remedy on facts alleged in plead-

ing; no evidence may be introduced to support or controvert

the objection that the petition fails to state cause of

action, and the court accepts well-pleaded allegations of fact

A-53

as true. Everything on Wheels Subaru, Inc; v. Suburu South,

Inc. et al, 616 So.2d 1234 (La. 1993); La. Code Civ. Proc.

art. 931.

The burden of demonstrating that there is no

cause of action is upon the mover. In deciding the exception

of no cause of action, the court must accept all factual alle-

gations of the petition to be true and all reasonable infer-

ences are made in favor of the non-moving party. Owens v.

Martin, 449 So.2d 448 (La. 1984); Darvislle v, Texaco, Inc.,

447 So.2d 473 (La. 19S4); Haskins v. Clary, 346 So.2d 193

(La. 1977). This court, in evaluating the sufficiency of

defendants’ petition, followed the accepted rule that a peti-

tion should not be dismissed for failure to state a cause of

action unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of any claim which would

entitle him to relief Haskins v. Clary, 346 So.2d 193 (La.

1977). Accordingly, dismissal is justified only when the alle-

gations of the petition do not have a cause of action, or when

its allegations indicate the existence of an affirmative

defense that appears clearly on the face of the pleading,

Haskins v. Clary, 346 So.2d 193 (La. 1977); Steeg v,

Lawyers, Title Ins. Corp., 329 So.2d 719 (La. 1976).

Plaintiffs alleged two causes of action for

design defects under La. R.S. § 9:2800.56 and one cause of

action for inadequate warning under La. R.S. § 9:2800.57.

1. Plaintiffs have a cause of action under

Louisiana Revised Statute 9:2800.56 for

design defects.

Generally, Product Liability Law provides

A-54

that a product is unreasonably dangerous in design, if at the

time the product left its manufacturer’s control there was: 1)

an alternate design for the product that was capable of pre-

venting the damage; and 2) the likelihood that the defen-

dants’ subsequent Peremptory Exception of No Right of

Action is moot.

I. PLAINTIFFS HAVE A CAUSE OF ACTION

AGAINST MANUFACTURERS AND

SELLERS OF FIREARMS UNDER ACT

1299, LOUISIANA REVISED STATUTE

9:2800.60.

A. Plaintiffs state a cause of action under

prior Louisiana Product Liability law.

The function of an exception of no cause of action is

to test legal sufficiency of the petition by determining

whether the law affords a remedy on facts alleged in plead-

ing; no evidence may be introduced to support or controvert

the objection that the petition fails to state cause of action,

and the court accepts well-pleaded allegations of fact as true.

Everything on Wheels Subaru, Inc; v. Suburu South, Inc. et

al, 616 So.2d. 1234 (La. 1993); La. Code Civ. Proc. art. 931.

The burden of demonstrating that there is no cause of

action is upon the mover. In deciding the exception of no

cause of action, the court must acceptiall factual allegations

of the petition to be true and all reasonable inferences are

made in favor of the non-moving party, Owens v. Marlin,

449 So.2d 448 (La, 1984); Darvisile v, Texaco, Inc., 447

A-55

So.2d 473 (La. 1984); Haskins v, Clary, 346 So.2d 193 (La.

1977). This court, in evaluating the sufficiency of defen-

dants’ petition, followed the accepted rule that a petition

should not be dismissed for failure to state a cause of action

unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of any claim which would entitle him

to relief Haskins v. Clary, 346 So.2d 193 (La. 1977).

Accordingly, dismissal is justified only when the allegations

of the petition do not have a cause of action, or when its alle-

gations indicate the existence of an affirmative defense that

appears clearly on the face of the pleading. Haskins v. Clary,

346 So.2d 193 (La. 1977); Sieeg v. Lawyers Title Ins. Corp.,

329 So.2d 719 (La. 1976).

Plaintiffs alleged two causes of action for design

defects under La. R.S. § 9:2800.56 and one cause of action

for inadequate warning under La. R,S. § 9:2800.57.

1. Plaintiffs have a cause of action under

Louisiana Revised Statute 9:2800.56 for design

defects.

Generally, Product Liability Law provides that a

product is unreasonably dangerous in design, if at the time

the product left its manufacturer’s control there was: 1) an

alternate design for the product that was capable of prevent-

ing the damage; and 2) the likelihood that the product’s

design would cause the claimant’s damage and the gravity of

that damage outweighed the burden on manufacturer of

adopting such alternative design and the adverse effect, if

any, of such alternative design on the utility of the product.

An adequate warning about a product shall be considered in

A-56

evaluating the likelihood of damage when the manufacturer

has used reasonable care to provide the adequate warning to

users and handlers of the product, § 2800.56.

Plaintiffs allege that the defendants’ have manufac-

tured firearms unreasonably dangerous in design and that

they failed to include safety devices in design. To support

their claim, the petition provides examples of alleged specif-

ic design defects such as the failure to: 1) prevent firearms

from being fired by unauthorized users; 2) alert users that a

bullet was in the firing chamber; and 3) prevent firearms

from being fired when the ammunition magazine was

- removed from the firearm. (See Plaintiffs ‘Petition).

Based on § 2800.56, before the enactment of §

2800,60, plaintiffs’ petition states; a valid cause of action.

The facts of the petition clearly support their claim for relief.

Based on the applicability of the Product Liability Act as the

exclusive theory of recovery against manufacturers of any

product, a cause of action existed under § 2800.56.

2. Plaintiffs have a cause of action under

Louisiana Revised Statute 9:2800.57 for

Inadequate Warning,

Generally, the Product Liability Act governing unrea-

sonably dangerous products because of inadequate warning

provides that “a product is unreasonably dangerous because

of inadequate warning about the product has not been pro-

vided for if, at the time the product left its manufacturer’s

- control, the product possessed a characteristic that may

cause damage and the manufacturer failed to use rea-

A-57

sonable care to provide an adequate warning of such charac-

teristic an its danger to users and handlers of the product.”

La. R.S. 9 § 2800.57.

Based on the language of § 2800.57 before the enact-

ment of § 2800.60, plaintiffs’ petition states a valid cause of

action to seek relief from defendants’ alleged inadequate

warning. The Petition states that defendants’ allegedly

failed to provide adequate warning fo the risks that minors

could gain access to guns, how to properly store weapons,

that a round may be hidden in the chamber or a pistol, and

that pistols could be fired with ammunition in the magazine

removed (See Plaintiffs ‘Petition). Based on these facts and

applicability of the Product Liability Act as the exclusive

theory of recovery against manufacturers of any product, a

cause of action existed under § 2800.57.

3. Plaintiffs do not have a cause of action under

the Louisiana Product Liability Act for nui-

sance, fraudulent concealment, unjust

enrichment, negligent marketing and

distribution, and civil conspiracy.

On September 7, 1999, plaintiffs filed an amended

petition alleging additional causes of action such as nui-

sance, fraudulent concealment, unjust enrichment, negligent

marketing and distribution, and civil conspiracy.

While plaintiffs’ theories of establishing that defen-

dants’ products are defective may be based on negligence or

strict liability, they are not viable theories of recovery

against a manufacturer. Louisiana law has clearly estab-

A-58

lished that the Louisiana Product Liability Act is the exclu-

sive theory of recovery in Louisiana against a manufacturer.

Peterson v. G.H. Bass & Co., 97-2483, 713 So.2d 806 (La.

App. 4th Cir. 5/20/98); Moore v. Safeway, Inc., 700 So.2d

831 (La. App Ist’ Cir. 11/22/96); Bernard v. Ferrellgas, Inc,

689 So.2d 554 (La. App. 3 “ 2/5/97); Ashley v. General

Motors Corp., 666 So.2d 1320 (La. App. 2 nd Cir. 1/24/96).

Although plaintiffs do not have a cause of action

under the Louisiana Product Liability Act, our courts disfa-

vor granting partial no causes of action. Everything on

Wheels v. Suburu South; 616 So.2d 1234 (La. 1993).

Therein, the Supreme Court established the existing rule

regarding petitions with more than one theory of recovery:

“If there are two or more items of damages or theo-

ries of recovery which arise out of the operative facts

of a single transaction or occurrence, a partial judg-

ment on an exception of no cause of action should

not be rendered to dismiss one item of damages or

theory of recovery, In such a case, there is truly one

cause of action, and a judgment partially maintaining

the exception is generally inappropriate.” Everything

on Wheels, 616 So.2d at 1239.

Based on the existing rule, this Court main-

tains its earlier finding of a cause of action in plaintiffs’

favor.

B. The Retroactive Prov.sion of § 9:2800.60 is

Unconstitutional.

A-59

1. § 2800.60 cannot be applied retroactively

because plaintiffs’ have a vested right

in their cause of action.

As established above, the right to bring litigation is a

vested right of plaintiffs guaranteed by their home rule char-

ter and Article VI, § 4. Furthermore, the Louisiana Supreme

Court has consistently held that where an injured party has a

cause of action, such cause of action is a vested property

right which is protected by the guarantee of due process.

Walls v. American Optical Corp., 98-0455 (La. 9/8/99); 740

So.2d 1262, 1263 (La. 1992); Crier v. Whitecloud, 496 So,2d

305 308 (La. 19886); Lott v. Haley, 370 So.2d 521, 524 (La.

1791). Thus, “statutes enacted after the acquisition of such a

vested property right ... cannot be retroactively applied so as

to divest the plaintiff of his vested right in his cause of action

because such a retroactive application would contravene the

due process guaranties.” Cole v. Celotex Corp., 599 So.2d

1058 (La. 1992); Faucheaux v. Alton Ochsner Medical

Foundation Hospital and Clinic, 470 So.2d 878, 879 La.

1985).

Section 2 of § 2800.60 is drafted to specifically eliminate

plaintiffs’ vested right in this cause of action against defen-

dants manufacturers. Thus, this retroactive provision is

unconstitutional and may not be upheld.

2. The Retroactive Provision of § 2800.60 is a

Prohibited Special Law.

For similar reasons expressed above, § 2800.60 qual-

ifies as a special law. Article 111, §12 provides, in pertinent

an

A-60

part: “...the legislature shall not pass a local or special law ...

(3) concerning any civil or criminal actions Defendants

have acknowledged in their briefs that both § 1797.1 and §

2800.60 were adopted retroactively specifically in response

to plaintiffs’ lawsuit. More importantly, Section 2 of §

2800.60 will directly affect a pending civil action - a pro-

hibited enumerated criteria under Article 111, § 12. The

Louisiana Supreme Court has interpreted this provision to

prohibit the legislature from passing any laws which affect

any particular lawsuit. Kimball v. Allstate Ins. Co., 97-2885,

712 So.2d 46 (La. 4/14/98); State v. McCue, 141 La. 417, 75

So. 100 (1917). Thus, Section 2 must be recognized as a spe-

cial law and unconstitutional.

3. §2800.60 is a substantive law and must not be

applied retroactively.

As discussed above, a two step analysis must be

applied to determine whether the statute should be applied

retroactively or prospectively. Cole v. Culotex, So.2d 1058

(La. 1992); St. Paul Fire & Marine Insurance Co. v. Smith,

609 So.2d 809 (La. 1992). Section 2 of § 2800.60 states that

it is meant to “clarify the provisions of the Louisiana

Product 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.” By this express state-

ment of retroactivity alone, jurisprudence mandates that our

inquiry ends. However, even where the Legislature has

expressed its intent to give a legislative law retroactive

effect, the law may not be applied retroactively if it would

impair contractual obligations or disturb vested rights, Keith

v, US. Fidelity & Guaranty Co., 96-2075 (La.

A-61

5/9/97); 694 So.2d 180; Segura, 630 So2d 714 (La. 1994).

In light of aforementioned reasons, this statute should not be

applied retroactively because it will divest the plaintiffs of

their vested rights because of its substantive nature.

Generally, substantive laws establish new

rules, rights and duties or changes existing ones, On the

other hand, interpretative laws merely establish the meaning

the interpreted statute had from the time of its enactment.

Segura v. Frank, 630 So,2d 714 (La. 1994). Interpretative

laws, do not create new rules, but merely establish the mean-

ing that the interpretative statute and from the time of its

enactment. Gulf Oil Corp. v. Slate Mineral Board, 317 So.2d

576, (La. 1974),

Defendants’ argue that, on its face, this statute

is interpretative. However, “the suggested distinction

between interpretive legislation “clarifying” and substantive

legislation “amending or “changing existing” law is an

obscure one. St Paul Fire & Marine Insurance Co. v. Smith,

609 So.2d 809 (La. 1992), In Gulf Oil Corp., the Supreme

Court explained that interpretative laws do not create new

laws, but merely establish the meaning that the interpreted

statute had from the time of its enactment, It is the original

statute, not the interpretive one, that establishes the rights

and duties. Gulf Oil Corp. v. State Mineral Board, 317 So.

2d at 59 1. Thus, following the Court's rationale in Gulf Oil

Corp., § 2800.60 cannot be in nature because it seeks to

establish new rights for gun manufacturers and seeks to

restrict the rights of plaintiffs that clearly existed prior to tile

enactment of § 2800.60.

A-62

Conversely, the Court’s reasoning in St. Paul Fire &

Marine Ins. Co. governs in this case. Therein, the Supreme

Court affirmed the principle that a statute that changes set-

tled law relative to substantive rights only has prospective

effect. But, in concluding the amendment of a statute was

substantive or legislative, the court noted several significant

factors: the enactment of new legislation. was a delayed

rather than a prompt response to the courts previous inter-

pretations of the statute; the parties relied on the line of

jurisprudence interpreting the statute; and that the amend-

ment was part of an overall revision of the workers compen-

sation laws. Id at 821-822; Segura v. Frank, 630 So.2d 714

(La. 1994). Applying the Court’s reasoning in St Paul Fire &

Marine Ins. Co. and Segura,, it becomes evident that §

2800.60 is substantive. Prior to § 2800.60, it was a well set-

tled principle that the Louisiana Product Liability Act was

the only theory of recovery available against any manufac-

turer. As a result, this statute has been unanimously applied

to all types of damage suits against a manufacturer without

a provision that specifically addressed a particular manufac-

turer. Furthermore, there is a long line of jurisprudence con-

sistently holding that the Louisiana Product Liability Act is

non-retroactive and that it alters substantive rights. Boh

Bros, Construction Co, Inc. v. Luber-Finer, Inc., 612 So.2d

270, (La. App. 4’ Cir. 1992); Delery v. Prudential Ins. Co. of

America, 643 So.2d 807 (La. App. 4th Cir. 9/29/94); Gilboy

v. American Tobacco Co., 582 So.2d 1263 (Supp. 1991);

Horton v. Burke, A Div. of Klien Tools, Inc., 926 F.2d 456,

C.A. 5 (La.) 1991.

Additionally, the City of New Orleans had to

_ rely on the long line of jurisprudence established based on

A-63

the Product Liability Act because it is the exclusive theory

of recovery against a manufacturer. Moreover, the enactment

of this statute constitutes a step in the dissolution of the unbi-

ased and uniform application of the Product Liability Act to

actions against a manufacturer, Consequently, it may well

stir up a line of Acts designed to specifically restrict the

rights of this State’s citizens and legal entities from pursuing

lawful and well-founded actions against certain types of

manufactures until the Product Liability Act, itself, is just a

frame of limitations.

Herein, this court is guided by the Supreme

Court’s rationale in St Paul Fire & Marine Ins. Co. , that “a

statute that changes settled law relative to substantive rights

only has prospective effect. St Paul Fire & Marine Ins. Co.,

609 So.2d 809 (La. 1992); Gilboy v. American Tobacco Co.,

582 So.2d 1263 (La. 1991). Thus, legislation that changes

well settled law falls outside of the category of interpreta-

tive. Id.

C. Retroactive application of § 2800.60 would

violate Federal and State Due Process and

Equal Protection Rights of Plaintiffs

1. Retroactive application of § 2800.60 would

violate plaintiffs due process rights

The Supreme Court has recognized that application of

legislative enactments has constitutional implications under

the due process and contract clauses of both the United

States and Louisiana Constitutions. Rousselle, 633 So.2d

1235 at 1244. As established above, this court believes that

A-64

plaintiffs do not have a cause of action under the enumerat-

ed provisions of Article 111, §23. But, a cause of action to

proceed under this article is reserved to private citizens such

as Plaintiff Keith Ignatik.

This court does agree, however, that the

retroactive provisions of § 2800.60 violates plaintiffs feder-

al and state due process rights. The right to file a damage suit

in tort is a vested properiy right protected by the guarantee

of due process. Walls v, American Optical Corp., 980455

(La. 9/8/99); 740 So.2d 1262, 1263 (La. 1992); Crier v.

Whitecloud, 496 So.2d 305 308 (La. 19886); Lott v. Haley,

370 So.2d 521, 524 (La. 1791). To do so would divest plain-

tiffs of their fundamental right to have their entire case

decided by a trier of fact or jury:

2. Retroactive Application of § 2800.60 would

violate Plaintiff Ignatik’s Equal Protection

Rights

Article 1, § 3 of the Louisiana Constitution |

provides:

“No person shall be denied the equal protection of

the laws. No law shall discriminate against a person

because of race or religious ideas, beliefs, or affilia-

tions. “No laws shall arbitrarily, capriciously, or

unreasonably discriminate against a person because

of birth, age, sex, culture, physical condition, or

political ideas or affiliation. Slavery and involuntary

servitude are prohibited, except in the latter case as

punishment for crime.”

A-65

The test for determining whether a private individ-

ual’s equal protection rights has been violated is a whether

the statutory classification of individuals is rationally related

to a legitimate governmental purpose. Consequently, when-

ever a person is disadvantaged by such a statutory classifi-

cation shows that it does not suitable further any appropriate

state interest, the courts must decline to enforce that classi-

fication. Pace v, State through Louisiana State Employees

Retirement System, 94-1027, 648 So.2d 13 02 (La. 1/ 17/95).

The retroactive provision of § 2800.60 is not rationally relat-

ed to a legitimate governmental purpose because the classi-

fication only affects the present plaintiff and seeks to elimi-

nate his cause of action to file suit for damages.

3. Retroactive application of § 2800.60 would

violate constitutionally mandated separation

of powers.

Plaintiffs argue that § 2800.60 represents an attempt

by the legislature to dictate to this Court how to decide this

specific case. The Supreme Court has not resolved the issue

of separation of powers as it relates to legislative and judi-

cial branches. But, has instead relied on the principles artic-

ulated by Professor Yiannopoulos, an expert in Louisiana

legislation, to harmonize the interplay between legislative

and judicial action as they arise in cases where interpretive

law must be distinguished from substantive law:

“ ... principles of separation of powers—does not

exclude the authority of the legislature to enact clear-

ly legislative laws...of course, it is a different matter

when the _ legislature actually amends

A-66

previously enacted legislation by laws designed as

interpretative. This again may be an improper exer-

cise of power tending to attribute, contrary to consti-

tutional guarantees, retroactive effect to new legisla-

tion.” St Paul Fire & Marine Ins. Co., 609 So.2d

809, 819 citing Yiannopoulos, Validity of Patents

Covering Navigable Waterbottoms- Act 62 of 1912,

Price, Carter and All That, 32 La. L. Rev. 1, 16

(1971); see also Manuel v. Louisiana Sheriff's Risk

Management Fund, 664 So.2d 81 (La. 11/27/95);

Gulf Oil Corp., State Mineral Board, 317 So.2d 576

(La. 1974). (emphasis added)

This court does not propose to resolve the issue of sep-

aration of powers, but follows the Court’s reasoning in Sz.

Paul Fire & Marine Ins. Co. As discussed above, § 2800.60,

although designed as interpretive, is substantive in nature.

Its retroactive application amends the Louisiana Product

Liability Aet and the rights reserved therein, In effect, the

enactment of § 2800.60 may be an improper exercise of

power tending to divested plaintiffs’ of a valid cause of

action.

IV CONCLUSION

For the reasons mentioned above the Peremptory

Exception of No Right of Action and No Cause of Action

filed by all defendants as they apply to the Mayor Marc H.

Morial, The City of New Orleans and Keith Ignatik are here-

by DENIED.

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READ, RENDERED AND SIGNED ON THIS DAY,

FE AR

/s/ signed

JUDGE

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APPENDIX C .

SUPREME COURT OF LOUISIANA

No. 00-CA-1132

MAYOR MARC H. MORIAL, AND THE

CITY OF NEW ORLEANS

‘Y.

SMITH & WESSON CORPORATION, ET AL.

APR 3 2001

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 suf-

fered by the City related to the manufacture, marketing, pro-

motion, 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 constitution-

ality of the statute on several grounds. For the reasons that

follow, we find that La. R.S. 40:1799 may be re-

A-69

troactively applied to the City’s suit as it was enacted pur-

suant 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 manu-

facturers, retailers, distributors, and trade associations! seek-

ing to recover damages for economic harm suffered by the

City “associated with the manufacture, marketing, promo-

tion, and sale of firearms which are unreasonably

1 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, Jtic., 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, S.A., 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.

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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 I of the Act purports to preclude suits from

being filed by any political subdivision or local governmen-

tal authority against any, firearms or ammunition manufac-

turer, 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.? Section

2Section I 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 pro-

vides:

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 dam-

ages 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 politi-

cal subdivision or local authority of the state.

Poy am on

poe

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2 of Act 291 provides that its provisions “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 effec-

tive date.”

The legislature also enacted Acts 1999, No. 1299, -

effective July 12, 1999, Which was codified as La. R.S.

9:2800.60. Section I 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 proper-

ly designed and manufactured product, and that the manu-

facture and sale of firearms and ammunition by duly

licensed manufacturers and dealers is lawful activity and is

not unreasonably dangerous.? Section 2 of Act 1299 states

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 dargerous.

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 caused by the

unreasonably dangerous construction or composition of the

product as provided in R.S. 9:2800.55.

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that its provisions are “intended to clarify the provisions of

footnote 3 continued

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; indi- |

cate 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 reg-

ulation.

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 manu-

facture 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.

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the Louisiana Products Liability Act, and therefore are reme-

dial in nature and shall apply to all actions or claims pend-

ing on or filed after the effective date of this Act.”

Subsequent to the effective dates of these Acts,

defendants filed peremptory exceptions, contending plain-

tiffs 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 sev-

eral grounds. Keith Ignatik, an individual and private plain-

tiff in a pending action filed on July 2, 1999 and captioned

Ignatik Tummarello, No. 99-1078 1, 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 chal-

lenges.”

After a contradictory hearing, the trial court denied defen-

dants’ exceptions, finding that La. R.S. 40:1799 and La. R.S.

9:2800.60 are unconstitutional. Initially addressing defen-

dants’ exception of no right of action, the trial court found

that Act 291 does not deprive plaintiffs of a right of

(4) The firearm is capable of being fired even with the ammu-

nition magazine removed.

G. The provisions of this Section shall not apply to

assault weapons manufactured in violation of 18 U.S.C.

S. 922(v).

4 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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action. First, the trial court found that plaintiffs have a vest-

ed 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 uncon-

stitutional 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 sub-

stantive law because it changes the rights of a political sub-

division to file suit against a firearms manufacturer; there-

fore, because the legislation divests the City of the right

found in its home rule charter to initiate litigation and

changes pre-existing law, the trial court found it unconstitu-

tional. Finally, the trial court found that retroactive applica-

tion of La. R.S, 40:1799 would impair plaintiffs’ rights

under the United States and Louisiana Constitutions, includ-

ing 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 defects> and for inadequate

5 The design defects alleged by plaintiffs include the absence of a mech-

anism 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.

A-75

warning® 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 protec-

tion 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.

Defendants have appealed the district court’s

judgment directly to this court pursuant to La.

Const. art. V, §5(D).7

LAW AND DISCUSSION

At the outset, we note that defendants have not

assigned as error, briefed, or argued the trial court’s rulings

relating to the rights of the private plaintiff, Keith Ignatik. At

oral argument before this court, counsel for defendants

© 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.

7 La. Const. art. V, §5(D) provides that a case shall be appealable to this

court if “a law or ordinance has been declared unconstitutional.”

A-76

stated that this appeal did not concern the trial court’s ruling

with respect to Mr. Ignatik. Therefore, the issues relating to

Mr, Ignatik’s rights are not before us and nothing in this

opinion should be interpreted to affect his nights.

The issue we must first decide is whether La. R.S.

40:1799, which provides that the governing authority of a

political subdivision is precluded from bringing suit against

firearms or ammunition manufacturers, trade associations,

or dealers seeking damages for losses resulting from the

lawful design, manufacture, marketing or sale of firearms or

ammunition, can be retroactively applied to the City’s suit

filed prior to its effective date. The City argues that retroac-

tive application of the statute, which was enacted by Act

291, would destroy its vested right to sue defendants and

therefore violate its due process rights guaranteed by the

Fourteenth Amendment. The City also argues that allowing

Act 291 to act as grounds for the dismissal of its suit would

violate the federal Equal Protection Clause, the Contract

Clause, and the prohibition against bills of attainder.

Furthermore, the City contends that retroactive application

of the statute would violate its vested right to sue in all mat-

ters, a right which sterns from its broad home rule powers.

In response, defendants argue that the political subdivisions

of the state do not enjoy constitutional protections under

Article I of the Louisiana Constitution, or the Due Process

and Equal Protections Clauses of the United States

Constitution. Defendants assert the state enacted La. R.S.

40:1799 in an exercise of its police power, which is a limi-

tation on the City’s home role power. Accordingly, defen-

dants maintain the City lacks a right of action to pursue this

suit.

as er a eee ow

A-77

The legislature is free, within constitutional confines,

to give its enactments retroactive effect. St. Paul Fire &

Marine Ins. Co. v. Smith, 609 So.2d 809, 816 (La. 1992).A

court must defer to the legislature’s intent when determining

whether a statute should be applied retroactively. La. C.C.

art. 6; Reichert v. State, Dept of Transp. & Dev., 96-1419, p.

6 (La. 5/20/97), 694 So.2d 193, 199; Stelly v. Overhead

Door- Co. of Baton Rouge, 94-0569, p. 7 (La. 12/8/94), 646

So.2d 905, 911. Civil Code Article 6, entitled “Retroactivity

of laws,” provides:

In the absence of contrary legislative expression,

substantive laws apply prospectively only.

Procedural and interpretative laws apply both

prospectively and retroactively, unless there is a leg-

islative expression to the contrary.

A related statute, La. R.S. 1:2, provides:

No Section of the Revised Statutes is retroactive

unless it is expressly so stated.

Although this statute may appear to conflict with La. C.C.

art. 6, La. R.S. 1:2 has been limited to apply only to sub-

stantive and not procedural or interpretive legislation and the

two provisions are therefore generally construed as being

co-extensive. Sudwischer v. Estate of Hoffpauir, 97-0785, p.

8 (La. 12/12/97), 705 So.2d 724, 728; Keith v. US, Fid &

Guar. Co., 96-2075, p. 5 (La. 5/9/97), 694 So.2d 180, 183;

Manuel v, Louisiana Sheriff's Risk Mgmt. Fund, 95-0406, p.

8 (La. 11/27/95), 664 So.2d 81, 85; Stelly v. Overhead Door

Co. of Baton Rouge, 94-0569, pp. 6-7 (La.

12/8/94), 646 So.2d 905, 911; St. Paul Fire & Marine Ins.

Co. v. Smith, 609 So.2d 809, 816 (La. 1992).

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Article 6 requires a two-fold inquiry:

First, we must ascertain whether in the enact-

ment the legislature expressed its intent

regarding retrospective or prospective appli-

cation. If the legislature did so, our inquiry is

at an end. If the legislature did not, we Must

classify the enactment as substantive, proce-

dural or interpretive.

Cole v. Celotex Corp., 599 So.2d 1058,1063 (La. 1992); Sz.

Paul Fire & Marine, 609 So.2d at 816. However, because

the principle has constitutional implications under the Due

Process and Contract Clauses of both the Unites States and

Louisiana Constitutions, even where the legislature has

expressed its intent to give a law retroactive effect, that law

may not be applied retroactively if it would impair contrac-

tual obligations or disturb vested rights. See Keith v. US Fid.

& Guar. Co., 96-2075, p. 6 (La. 5/9/97), 694 So.2d 180, 183;

Rousselle v. Plaquemines Parish Sch. Bd, 93-1916, p. 11

(La. 2/28/94), 633 So.2d 1235, 1244; Segura v. Frank, 93-

1271, pp. 8-9 (La. 1/ 14/94), 630 So.2d 714, 72 1; St. Paul

Fire & Marine, 609 So.2d at 816 n. 11; Lott v. Haley, 370

So.2d 521, 523 (La. 1979). See also 2 AN YIANNOPOU-

LOS, LOUISIANA CIVIL LAW TREATISE, § 10(3d ed.

1991) (“Retroactive application of new legislation is consti-

tutionally permissible only if it does not result in impairment

of the obligation of contracts or in divestiture of vested

rights.”).

The first step under Article 6, determining whether

the legislature expressly provided for retroactive applica-

tion, is resolved by examining the specific language con-

A-79

tained in the Act. St. Paul Fire &Marine, 609 So.2d at 816-

17. Act 291 contains a clear and unmistakable expression of

legislative intent regarding its intended temporal effect.

Section 2 of the Act states that its provisions “shall be appli-

cable to all claims existing or actions pending on its effec-

tive date and all claims arising or actions filed on and after

its effective date.” By adopting this Section, the legislature

has clearly indicated its intent that this Act be applied both

retroactively and prospectively. Because the City’s action

was pending, i.e., “subject to judicial scrutiny,” see Segura

v. Frank, 93-1271 at p. 19, 630 So.2d at 727, on the effective

date of the Act, we must conclude that the legislature intend-

ed that Act 291 be applied to plaintiffs’ claims. Because the

legislature plainly intended that Act 291 be retroactively

applied, its provisions will be applied to the City’s suit

unless doing so would violate the constitutional prohibitions

against impairment of contractual obligations or disturbance

of vested rights.®

The legislature’s power to enact retroactive laws is

limited by the Due Process and Contract Clauses of the

Federal and State Constitutions. U.S. Const. Amend. XIV, § 1;

8 The Article 6 inquiry is at an end because we can determine the legis-

lature’s intent regarding retroactive application of the statute. As we

explained in Bourgeois v. A.P. Green Indus., Inc., 00-1528, rendered this

date, an analysis of whether the Act is substantive, procedural or inter-

pretive would be futile since such a classification would be useful only

in determining whether the legislature would have desired only prospec-

tive or both prospective and retroactive application of the statute.

Because the clear language of Section 2 of the Act unmistakably evi-

dences the legislature’s intent that the provisions of La. R.S. 40:1799 be

applied both prospectively and retroactively, there is no need to classify

the law as substantive, procedural or interpretive.

S

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U.S, Const. Art. 1, § I Of1]; La. Const. art. 1, $2, La. Const.

art. J, § 23. See also Segura, 93-1271 at p. 19-20, 630 So.2d

at 728, and cases cited therein. In the instant case, however,

the City, as a political subdivision of the state, is not entitled

to assert the protections afforded by these clauses against the

retroactive application of La. R.S. 40:1799. Williams v.

Mayor & City Council of Baltimore, 289 U.S. 36, 40, 53

S.Ct. 431, 432 (“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.”); Board of

Comm'rs of Orleans Levee Dist. v. Department of Natural

Resources, 496 So.2d 281, 287 (La. 1986) (on rehearing)

(“Article 1, the Declaration of Rights Article, protects the —

rights of individuals against unwarrantable government

action and does not shield state agencies from laws passed

by the people’s duly elected representatives.”); State ex rel.

Kemp v. Cit)) of Baton Rouge, 40 So.2d 477, 482 (La. 1949)

(“It is the settled jurisprudence that counties and municipal-

ities are creatures of the State, established for the purpose of

providing effective government with functions, powers,

duties and obligations delegated or imposed by the State and

that there is nothing in the Fourteenth Amendment of the

Federal Constitution or any other provision of the

Constitution of the United States which would prohibit the

State from making any change of such functions, powers and

obligations.”). See also Palomar Pomerado Health Sys. v.

Belshe, 180 F.3d 1104, 1107 (Ih Cir. 1999) (“[PJolitical

subdivisions of a state may not challenge the validity of a

state statute in a federal court on federal constitutional

grounds.”); Harris v. Angelina County, Tex., 31 F.3d 331,

338 (Sth Cir. 1994) (“[S]tate subdivisions, such as counties

A-8]

and municipalities, cannot assert constitutional claims in

federal court against their creator, the state itself, or other

state political subdivisions.”); 2 DENNIS JENSEN & GAIL

A. O’GRADNEY, MCQUILLIN MUNICIPAL CORPORA-

TIONS §4.17 at 51 Grd ed. 1996) (“A municipal corporation

has no privileges or immunities under the federal

Constitution which it may invoke against state legislation

affecting it.”).

The Contract Clause, Article I, Section 10[ 11 of the

United States Constitution, provides:

No state shall ... pass any Bill of Attanider, ex post

facto Law, or Law impairing the Obligation of

Contracts .... |

Article 1, Section 23 of the Louisiana Constitution

of 1974, provides:

No bill of attainder, ex post facto law, or law impair-

ing the obligation of contracts shall be enacted.

These constitutional provisions are “virtually identical” and

“substantially equivalent.” Segura, 93-1271 at p. 20, 630

So.2d at 728.

In Rousselle v. Plaquemines Parish Sch. Bd, 93-1916

(La. 2/28/94),633 So.2d 1235, this COMA explained that the

constitutional prohibitions found in the Contract Clauses of

the Federal and State Constitutions do not protect political

subdivisions of the state from the passage of retroactive

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laws impairing their rights with respect to transactions

already passed because these protections are for the benefit

of private citizens. In that case, this court considered a

retroactive application of an amendment to the teacher

tenure laws and its effect on a pre-existing contract between

a school principal and a school board. Rouselle, a school

principal, sought to have a 1991 amendment to the teacher

tenure laws, an amendment which increased his job protec-

tion, apply to his 1990 promotional contract with the school

board. The court first concluded that, as administrators of

public education, school boards are agencies of the state. As

such, the school boards must comply with the teacher tenure

laws which define the status of Louisiana’s public school

teachers and outline the procedures a school board must fol-

low to discharge them. After examining the language of the

amendment, the court concluded the legislature expressly

provided for its retroactive effect. The school board argued

against retroactive application, contending retroactive appli-

cation would unconstitutionally impair its contractual rights.

The court rejected this argument and held retroactive appli-

cation of the amendment was permissible because the school

board, as a public agency of the state, was not protected by

the constitutional prohibition against impairment of con-

tracts.

The court stated:

The retroactive application of Act 779 to Rousselle’s

contract does not unconstitutionally impair the

School Board’s contractual rights. The School Board

is an agency of the state and is aware of the legisla-

ture’s broad and pervasive power to regulate public

education. Accordingly, it is not _ pro-

A-83

tected by the constitutional prohibition against the

legislature enacting laws which impair the obliga-

tion of contracts. The inhibitions found in Article 1,

§ 23 of the Constitution are protections for the citi-

zens and not for the State. This state may

Constitionally pass retrospective laws waiving or

impairing its own rights or those of its subdivisions

or imposing upon itself or its subdivisions new lia-

bilities with respect to transactions already passed,

as long as private rights are not_infringed. Thus, as

the School Board is not protected by the contract

clause prohibitions of the state or federal constitu-

tions, there is no need to employ the four-step con-

tract clause analysis to determine whether Act 779

unconstitutionally impairs its contractual obliga-

tions.

Id. at 1246-47 (citations and footnotes omitted) (emphasis

added). See also City of Safety Harbor v. Birchfield, 529

F.2d 1251, 1254 (Sth Cir. 1976) (“Ever since the Supreme

Court’s landmark decision in Dartmouth College v.

Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), it

has been apparent that public entities which are political

subdivisions of states do not possess constitutional rights,

such as the right to be free from state impairment of con-

tractual obligations, in the same sense as private corpora-

tions or individuals.”); Olivedell Planting Co. v. Town of

Lake Providence, 47 So.2d 23, 27 (La. 1950) (“The provi-

sions of our Constitution relating to the impairment of the

obligations of contracts only apply to contracts or vested

A-84

rights of individuals or private corporations.”).?

In light of the established principle that the Contract

Clauses of the Federal and State Constitutions do not apply

to protect municipalities of the state from retroactive legis-

lation, we must conclude that these clauses would not be

violated by a retroactive application of La. R.S. 40:1799 in

this case. Moreover, the City, as a creature of the state, is not

entitled to assert the constitutional prohibition against bills

of attainder against its creator.!9 The trial court was there-

fore correct in concluding that the City does not have the

right to assert the constitutional protections of the Contract

Clause and the prohibition against bills of attainder.

Similarly, the City, as a political subdivision of the

state rather than a “person,” is without the protections of La.

Const. art. 1, the Declaration of Rights Article, or the Due

Process and Equal Protection Clauses of the United States

Constitution. The jurisprudence has long held that munici-

palities are not entitled to Fourteenth Amendment protec-

tions. Williams v. Mayor & City Council of Baltimore,

supra; Risty v. Chicago, Ry & P. Ry, Co., 270 U.S. 378, 390

46 S.Ct. 236, 240 (1926) (“The power of the state and its

agencies over municipal corporations within its territory is

9 Because the City is not protected by the Contract Clauses found in both

the Federal and State Constitutions, we need not utilize the four-step

contract clause analysis to determine whether application of the statute

at issue to the City’s suit impairs its contractual obligations.

1OAithough the City is not to be regarded as a creature of the legislature

since its powers and functions are granted directly by the constitution,

Francis v. Morial, 455 So.2d 1168, 1173 (La. 1984), it is undeniably a

creature of the state.

A-85

not restrained by the provisions of the Fourteenth

Amendment.”); Warren County, Miss v Hester 54 So 2d 12

18 (La. 195 1) cert. denied. 342 U.S. 877 72 S.Ct. 167(1951)

(“[I]t is plain that the Fourteenth Amendment of the Federal

Constitution, declaring that no state shall deprive any person

of life, liberty or property without due process of law nor

deny any person within its jurisdiction the equal protection

of the laws, is utterly without application to the political sub-

divisions of a state, which cannot be viewed as a person

within the purview of the constitutional provision.”); State

exrel. Kenip v. City of Baton Rouge, 40 So.2d 477 (La.

1949), supra; 2 DENNIS JENSEN & GAIL A. O’GRAD-

NEY, MCQUILLIN MUNICIPAL CORPORATIONS § 4.20

at 60 (3rd ed. 1996) (“Municipal corporations are political

subdivisions of the state, created for exercising any govern-

mental powers of the state as may be entrusted to them and

they may not assert the protection of the due process clause

against action of the state government. “‘). See also City of

Newark v. New jersey, 262 U.S. 192, 43 S.Ct. 539 ( 192 3);

City, of Trenton v. New jersey),, 262 U.S. 182, 43 S.Ct. 534

(1923); City of New York v. Richardson, 473 F.2d 923 (2nd

Cir. 1973); Yonkers Comm’n on Human Rights v. City of

Yonkers, 654 F.Supp. 544 (S.D. N.Y. 1987); Bartels v.

Roussel, 303 So.2d 833 (La. App. 1 Cir. 1974); Penny v.

Bowden, 199 So.2d 345 (La. App. 3 Cir. 1967).

Correspondingly, Article I of the Louisiana Constitution pro-

tects only the rights of “persons” and does not protect gov-

ernment entities against unjust government action. See

Board of Comm’rs, supra.

The City of New Orleans is not protected by the constitu-

tional prohibitions against impairment of contractual obli-

A-86

gations or disturbance of vested rights. Therefore, the

retroactive application of La. R.S. 40:1799 to its lawsuit is

not precluded by due process or equal protection considera-

tions, the Contract Clauses or the Bill of Attainder Clauses

of either the Federal or State Constitution.

The City is not without constitutional protection,

however. Although the Declaration of Rights Article of the

Louisiana Constitution does not protect government entities

against unjust government action, the protection of these

entities is provided for in the Local Government Article.

Board of Com'rs, supra. The Local Government Article,

Article V1, gives home rule entities such as the City broad

home rule authority by which it has the “freedom and flexi-

bility to manage its own local affairs without undue legisla-

tive influence.” Miller v. Oubre, 96-2022, p. 9 (La.

10/15/96), 682 So.2d 231, 236.

The City of New Orleans is governed by the provi-

sions of a home rule charter enacted prior to the 1974

Louisiana Constitution. These pre-existing home rule char-

ters were continued, and essentially constitutionalized, City

of New Orleans v. Board of Comm'rs of Orleans Levee Dist.,

93-0690, p. 8 (La. 7/5/94), 640 So.2d 237, 1-44, by La.

Const. art. VI, §4. This section provides:

Every home rule charter or plan of government

existing or adopted when this constitution is adopted

shall remain in effect and may be amended, modi-

fied, or repealed as provided therein. Except as

inconsistent with this constitution, each local gov-

ernmental subdivision which has adopted such a

home rule charter or plan of government shall retain

A-87

the powers, functions, and duties in effect when this

constitution is adopted. If its charter permits, each of

them also shall have the right to powers and func-

tions granted to other local governmental subdivi-

sions.

Although “‘home rule’ does not mean complete autonomy,”

Miller v. Oubre, 96-2022 at p. 9, 682 So.2d at 236, this court

has recognized that, in affairs of local concern, a home rule

charter government possesses “powers which within its

jurisdiction are as broad as that of the state, except when

limited by the constitution, laws permitted by the constitu-

tion, or its own home rule charter.” Francis v. Morial, 455

So.2d 1168, 1171 (La. 1984).

Article VI also fosters local self-government by giv-

ing home rule entities “the discretion to deploy their powers

and functions on the local level, which may not be revoked,

changed or affected by law unless necessary to prevent an

; abridgement of the reasonable exercise of the state’s police

= power.” Td. La. Const. art. VI, §6 provides:

The legislature shall enact no law the effect of which

changes or affects the structure and organization or

the particular distribution and redistribution of the

powers and functions of any local governmental

subdivision which operates under a home rule char-

ter.

This Section was added to Article VI to protect

home rule governments from unwarranted interference in

their internal affairs by state government. Francis, 455

So.2d at 1171.

A-88

To ensure that the powers granted to home rule gov-

ernments would not be used to deprive the state government

of its inherent powers, Section 9(/ 3) was added to Article VI

as a counterbalance. Id. at 1172. This section, entitled

“Limitations of Local Government Subdivisions,” provides:

Notwithstanding any provision of this Article, the

police power of the state shall never be abridged.

This provision was adopted “as a principle of harmonizing

the replete home rule powers granted local governments

with a basic residuum of the state’s power to initiate legisla-

tion and regulation necessary to protect and promote the

vital interests of its people as a whole.” City of New Orleans,

93-0690 at p. 20, 640 So.2d at 249. This section has also

been characterized as “a positive reaffirmance of the

supremacy of the state’s police power.” Lafourche Parish

Council v. Autin, 94-0985, p. 18 (La. 12/9/94), 648 So.2d

343, 357.

Although the police power of the state is best defined

on a case by case basis, it has been generally described as the

state’s “inherent power to govern persons and things, within

constitutional limits, for promotion of general health, safety,

welfare, and morals.” City of New Orleans v. Board of

Directors of Louisiana State Museum, 98-1170, p. 1 1 (La.

3/2/99), 739 So.2d 748, 757. See also Polk v. Edwards, 626

So.2d 11218, 1142; Francis, 455 So.2d at 1172. The police

power extends only to measures that are reasonable. City) of

New Orleans v. Board of Directors of Louisiana State

Museum, 98-1170 at p. 11, 739 So.2d at 757; Francis, 455

So.2d at //72. A measure taken under the state’s police

A-89

power is reasonable when the action is, under all the cir-

cumstances, reasonably necessary and designed to accom-

plish a purpose properly falling within the scope of the

police power. City of new Orleans v. Board of Directors of

Louisiana State Museum, 98-1170 at p. H, 739 So.2d at 757.

Thus, to sustain an action under the state’s police power,

courts must be able to see that its operation tends in some

degree to prevent an offense or evil or otherwise to preserve

public health, safety, welfare or morals. /d. Further, an exer-

cise of the state’s police Power “does not justify an interfer-

ence with constitutional rights which is entirely out of pro-

portion to any benefit redounding to the public.” City of

Baton Rouge v. Williams, 95-0308, p. 6 (La. 10/16/95), 661

So.2d 445, 449 (quoting Francis, 455 So.2d at 1173).

In the instant case, defendants argue that La. R.S.

40: 1799 was enacted in the interest of public safety and wel-

fare and pursuant to the police power of the state. They rea-

son that the City’s suit is therefore barred as an abridgement

of the state’s_police power. We agree.

The City’s broad authority under the Home Rule

Charter of 1954 and its predecessor, Act 159 of 1912, allows

it to “sue and defend, plead and be impleaded, in all courts

and places and in all matters and proceedings.” It was pur-

suant to these powers that the City filed the instant lawsuit.

As this court has previously recognized, the powers of home

rule entities are limited by the police power of the state. City

of Neu) Orleans v. Board of Directors of Louisiana State

Museum, 981170 at p. 12, 739 So.2d at 757. Therefore,

under the principles set forth in Article VI as explained

above, the City may freely exercise its power to sue in all

A-90

matters and proceedings unless this power conflicts with a

valid exercise of the state’s police powers.

The statute at issue, La. R.S. 40:1799, provides that

the governing authority of a political subdivision is preclud-

ed and preempted from bringing suit against any firearms or

ammunition manufacturers, trade associations, or dealers

seeking damages for injury, death, or loss or other injunctive

relief resulting from the lawful design, manufacture, mar-

keting, or sale of firearms of ammunition and reserves the

authority to bring such actions exclusively to the state. This

statute therefore purports to take away any right of action

that a political subdivision might have previously had to

bring suit against the firearms industry seeking damages or

injunctive relief relating to the lawful design, manufacture,

marketing, or sale of firearms or ammunition. If La. R.S.

40:1799 is constitutional and applicable to the City’s suit,

then the plain language of its provisions clearly mandates

the dismissal of the City’s suit.

It is beyond question that this challenged statute was

passed in the interest of the public as a whole and as an exer-

cise of the state’s police power. A reading of the legislative

history of Act 291 indicates that its provisions were enacted

to make it clear that the regulation of firearms is exclusively

a state function. See Minutes of the Senate Committee on

Judiciary A, May 18, 1999, pp. 18-21. Clearly, state regula-

tion of the lawful design, manufacture, marketing, or sale of

firearms or ammunition is of vital interest to the citizens of

Louisiana. Equally clear is the fact that consistent, exclusive

_ statewide regulation of the firearms industry tends in a great

degree to preserve the public safety and welfare. A scheme

A-91

allowing several municipalities to file suits effectively

attempting to regulate the firearms industry different ways

and in different degrees could conceivably threaten the pub-

lic safety and welfare by resulting in haphazard and incon-

sistent rules governing firearms Louisiana. Moreover, this

court has consistently recognized that the legislature’s

authority to regulate different aspects of the firearms indus-

try constitutes a legitimate exercise of the police power. See

State v. Sandifer, 95-2226 (La. 9/5/96), 679 So.2d 1324;

State v. Hamlin, 497 So.2d 1369 (La. 1986); State v. Amos,

343 So.2d 166 (La. 1977). Considering all the circum-

stances, we therefore conclude that Act 29] of 1999

Constitutes a reasonable exercise of the state’s police power.

The statute at issue is aimed at suits, such as the one

filed by the City in the instant case, that attempt to indirect-

ly regulate the firearms industry on the local level. The peti-

tion filed by the City in this case alleges that the City was

damaged because defendants’ firearms

are sold without the means to prevent their being

fired by unauthorized users, without adequate warn-

ings which would prevent such shootings by alerting

users of the risks of handguns and of the importance

of proper storage of handguns, and without other

safety features and warnings which would prevent

shootings by unauthorized users. Defendants distrib-

ute their handguns in a manner which affords easy

access to unauthorized users including criminals...

At all pertinent times the defendants have been able

to manufacture, market, sell and/or promote firearms

which prevent shootings by unauthorized users,

including firearms which incorporate

A-92

safety devices intended to prevent unauthorized

users from firing firearms if and when they come

into possession of them. However, defendants have

failed to do so.... Defendants were ... aware of safe-

ty devices, warnings, and other measures which

would prevent and decrease these dangers.

Defendants failed to remedy these deficiencies in

their handguns, warnings, instructions, promotions

and advertising; failed to adequately warn customers

of these dangers; and failed to inform customers or

distributors or retailers of safety devices and meas-

ures which could prevent or decrease these dangers

and failed to determine whether safety devices were

feasible or effective.

As evidenced by the language in the City’s petition, this law-

suit constitutes an indirect attempt to regulate the lawful

design, manufacture, marketing and sale of firearms.!! As

11 Defendants argue that La. R.S. 40:1796, a statute effective July 17,

1985, preempted the City’s suit at the time it was filed and it was thus

unnecessary for the district court to reach the constitutionality of Act

291. La. R.S. 40:1796 provides:

No governing authority of a political subdivision shall enact after July

15, 1985, any ordinance or regulation more restrictive than state law

concerning in any way the sale, purchase, possession, ownership, trans-

fer, transportation, license, or registration of firearms, ammunition, or

components of firearms or ammunition; provided, however, that this

Section shall not apply to the levy and collection of sales and use taxes,

license fees and taxes and permit fees, nor shall it affect the authority of

political subdivisions to prohibit the possession of a weapon or firearm

in certain commercial establishments and public buildings.

Because neither the plain language nor anything in the legislative histo-

ry of this statute leads us to conclude that it was intended to apply to law-

suits filed by the governing authority of a political subdivision, we find

this contention without merit.

A-93

such, it squarely conflicts with a reasonable exercise of the

State’s police power and must be dismissed on the grounds

that the City lacks a right of action to pursue this suit. As

explained above, the fact that the statute was enacted subse-

quent to the filing of the City’s suit is of no moment as the

City lacks the protections of La. Const. art. 1, the Fourteenth

Amendment, and the Contract Clauses of both the Federal

and State Constitutions and the continuation of the suit

abridges the police power of the state in contravention of La.

Const. art. VI, §9(B).

In addition to the constitutional arguments discussed

above, the City also argues that the retroactivity provision of

Act 291 is unconstitutional on the grounds that it is a pro-

hibited local or special law. We disagree with this argument.

The Louisiana Constitution prohibits the legislature

from passing any local or special law which deals with any

of the subjects enumerated in La. Const. art. III, § 12(A).

The prohibition against these laws “is intended to reflect a

policy decision that legislative resources and attention

should be concentrated upon matters of general interest, and

that purely local matters should be left to local governing

authorities.” Kimball v. Allstate Ms. Co., 97-2885, p. 4 (La.

4/14/98), 712 So.2d 46, 50 (quoting H. Alston Johnson ///,

Legislative Process, 36 La. L. Rev, 549, 549 (La. 1976)).

The prohibition against local and special laws, however, is

not intended to restrict the legislature’s ability to adopt leg-

islation under its police power for the promotion of the

health, safety, welfare and morals of the citizens of the state.

Polk v. Edwards, 626 So.2d 1128, 1136 (La. 1993). An

analysis of whether a statute constitutes an unconstitutional

A-94

local or special law begins with a determination of whether

the law is, in fact, local or special. Kimball, 97-2885 at p. 4,

712 So.2d at 50. If it is, then only then must we decide

whether the law concerns a subject listed in La. Const. art.

111, § 12(A). M.; Polk, 626 So.2d at 1133 (‘[I]f the legisla-

tion is general rather than local or special, neither the prohi-

bitions regarding the enumerated subjects nor the

reqUirement for local advertisement apply.”’).

A law is local if it operates only in a particular local-

ity or area without the possibility of extending its coverage

to other localities or areas should the requisite criteria exist

or come to exist in the new locality or area. State v. Brazley,

00-0923, p. 4 (La. 11 /28/00), 773 So.2d 718, 72 1; Kimball,

97-2885 at p. 4, 712 So.2d at 51. Thus, a law is general, and

not local, if its operation can extend to the whole.territory of

the state. Kimball, 97-2885 at p. 4, 712 So.2d at 5 1.

Additionally, a law is not local even though its enforcement

may be restricted to a particular locality or area where the

conditions under which it operates simply do not exist in

other localities. Kimball, 97-2885 at p. 5, 712 So.2d at 51

(citing City of New Orleans v. Treen, 431 So.2d 390, 394

(La. 1983) (“[A] law may be a general law even though lim-

ited to one locality if it is general im its terms and its cover-

age can extend to other areas should the requisite criteria

exist there as well or if its operation is limited to a locality

through the effect of a reasonable classification such as pop-

ulation, size or physical characteristics and not solely

through the specific designation of a certain parish or

parishes.”)). Furthermore, a law whose application and

immediate effect is restricted to a particular locality is not

local if it affects persons throughout the state or operates on

A-95

a subject in which the people at large are interested. Id.;

Livingston Downs Racing Ass'n, Inc. v. State, 96-2890, p. 12

(La. 12/2/97), 705 So.2d 149, 156; Louisiana Paddlewheels

v. Louisiana Riverboat Gaming Comm'n, 94-2015, p. 7 (La.

11/30/94), 646 So.2d 885, 889; Polk, 626 So.2d at 1134. A

law is special if it operates upon and affects only a fraction

of the persons or a portion of the property encompassed by

a classification, granting privileges to some while denying

them to others. Kimball, 97 2885 at p. 6, 712 So.2d at 52. In

contrast to a law that is local or special, a law that is gener-

al operates equally and uniformly upon all reasons brought

within its confines or operates equally upon all of a desig-

nated class which has been founded upon a reasonable clas-

sification. /d.

Applying the above principles, we conclude that both

Section I and Section 2 of Act 1-91 operate as general laws

rather than local or special laws. Section 1, which compris-

es the text of La. R.S. 40:1799, is not a local law as its oper-

ation extends to the governing authorities of all political

subdivisions. Additionally, this section operates on a subject

in which the people at large are interested and it is therefore

not a local law. Similarly, Section I is not a special law since

it affects all the local governing units of the state without

granting privileges to some while denying them to others.

Section I is clearly a general law as it operates equally

throughout the state upon all political subdivisions wishing

to file suit against the firearms industry.

Section 2 of the Act deals with retroactivity and provides

that its provisions shall be applicable to all claims existing

or actions pending on its effective date and all claims aris-

A-96

ing or actions filed on and after its effective date. Like

Section 1, Section 2 operates as a general law as it operates

uniformly upon all local governing units that desire to file

suits contemplated by La. R.S. 40:1799. This section is not

a local law because, by its very terms, it applies to all local-

ities in the state who have pending actions that are now sub-

ject to exceptions of no right of action pursuant to La. R.S.

40:1799. The fact that the City is the only political subdivi-

sion that has a lawsuit of this type pending against the

firearms industry does not make Section 2 a local law since

the conditions upon which Section 2 operates, all governing

authorities of a political subdivision that have actions pend-

ing on the effective date of the Act, simply do not prevail in

other localities. Moreover, Section 2 is not a special law

because its privileges and concomitant restrictions affect

every entity within its classification, political subdivisions

with pending suits against firearms or ammunition manufac-

turers, trade associations or dealers, equally. Every political

Subdivision that had a suit similar to that of the City’s pend-

ing on the effective date of Act 291 is subject to the provi-

sions of La. R.S. 40:1799. Again, the fact that the City is the

only political subdivision with such a pending suit does not

make the law a special one since the disabilities or burden-

some conditions imposed by Section 2 apply equally to all

_ political subdivisions and that classification is reasonable.

Furthermore, that Section 2 is a general law is also support-

ed by the fact that it operates on a subject in which the peo-

ple at large are interested. This conclusion is also buttressed

by the fact that the prohibition against local or special laws

is not intended to restrict the legislature’s exercise of its

police power.

A-97

Finally, the City argues that application of Act 291 as a basis

for sustaining defendants’ exception of no right of action

violates the constitutional principle of separation of powers.

We reject the City’s argument that, in enacting Act 291, the

legislature exercised power properly belonging to the judi-

cial branch of government. The legislature has always

enjoyed the power to create new rights and abolish old ones

as long as it does not interfere with vested rights. See, e.g.,

Reeder v. North, 97 0239, p. 9 (La. I 0/21/97), 701 So.2d

1291, 1296; Crier v. Whitecloud, 496 So.2d 305, 310 (La.

1986). As we have already explained, the legislature’s deci-

sion to abolish a political subdivision’s right of action to sue

firearms or ammunition manufacturers, trade associations or

dealers for damages or injunctive relief resulting from or

relating to the lawful design, manufacture, marketing, or sale

of firearms or ammunition did not interfere with any vested

rights belonging to the City. As such, the legislature acted

entirely within its province when it enacted the law at issue.

For all of the foregoing reasons, we conclude the dis-

trict court erroneously declared La. R.S. 40:1799 unconsti-

tutional as applied to the City’s suit. The defendants’ excep-

tion of no right of action should have been sustained and,

because the grounds of defendants’ objection pleaded by the

peremptory exception of no right of action cannot be

removed by amendment of the petition, plaintiffs’ suit

should be dismissed. In light of this court’s conclusion that

the City is without a right of action to pursue this suit, we

need not address the constitutionality of Act 1299 of 1999,

codified as La. R.S. 9:2800.60. The district court’s declara-

tion of unconstitutionality as to this statute as it affects the

A-98

rights of the City is therefore vacated.

DECREE

For the reasons explained above, defendants’ excep-

tion of no right of action is sustained and plaintiffs’ action

is dismissed. The district court’s conclusion as to the con-

stitutionality of La. R.S. 40:1799 is reversed. The district

court’s conclusion relating to defendants’ exception of no

cause of action and the constitutionality of La. R.S.

9:2800.60 is vacated and set aside.

REVERSED IN PART; VACATED IN PART; and

RENDERED.

A-99

SUPREME COURT OF LOUISIANA

No. 00-CA-1132

MAYOR MARC H. MORIAL, AND THE

CITY OF NEW ORLEANS

V.

SM11TH & WESSON CORPORATION, ET AL

APR 3 2001

ON APPEAL FROM THE

CIVIL DISTRICT COURT FOR

THE PARISH OF ORLEANS

HONORABLE LLOYD J. MEDLEY, JUDGE

CALOGERO, Chief Justice, dissenting.

I dissent from the majority’s conclusion that contin-

uation of the City’s lawsuit abridges the police power of the

state in contravention of La. Const. art. VI, § 9(B). The

majority reaches this result by concluding that the City’s

lawsuit is an indirect attempt to regulate the lawful design,

manufacture, marketing and sale of firearms. Further, the

majority concludes that 1999 La, Acts 291 (hereinafter “Act

291 “) was passed as a valid exercise of the state’s police

power to make it clear that regulation of firearms is exclu-

sively a state function. I disagree with both conclusions.

First, the City’s lawsuit does not attempt in any way

A-100

to regulate the firearms industry. It is merely a suit for dam-

ages. To conclude otherwise would be to say that an injured

plaintiff is attempting to regulate the automobile industry

when he sues to recover damages caused by faulty brakes, or

that a survivor is attempting to regulate the airline industry

when he sues the airline because his spouse was killed in an

airplane crash. The City does not request any relief in the

form of a mandatory injunction that would require gun man-

ufacturers to change their way of doing business; rather, the

City is ostensibly only seeking damages in accordance with

causes or action created by products liability statutes in exis-

tence at the time the lawsuit was filed.

According to Black's Law Dictionary, Fourth Edition

(1968), to “regulate” means “to fix, establish or control” or

“to direct by rule or restriction.” The City’s lawsuit does nei-

ther. The City’s goal is the collection of monies to compen-

sate it for damages resulting from the actions of defendants

— nothing more, nothing less.

Second, Act 291 is not a valid exercise of the state’s

police power sufficient to trump the City’s powers enumer-

ated in its Home Rule Charter, which pre-dated the La.

Constitution of 1974. For the same reasons stated above, Act

291 is not an attempt to regulate the firearms industry (which

likely is within the state’s police power), but rather is only a

legislative assertion of who has the right of action to sue for

damages in certain cases. Act 291 was not passed in

response to a pressing public need or a vital public interest.

Rather, it was passed in response to the City’s lawsuit with

the obvious intent to halt the City’s litigation.

A-101

Even if Act 291 constituted a “regulation,” it does not rise to

the level of a valid exercise of the state’s police power suffi-

cient to override the powers granted to the City of New

Orleans in its Home Rule Charter, which pre-dated the 1974

Louisiana Constitution. In City of New Orleans v. Bd of

Com’rs of Orleans Levee Dist., 93-0690, p. 27 (La. 7/5/94),

640 So. 2d 237, 252, we discussed the state-local govern-

ment relationship contemplated by Article VI of the La.

Const. of 1974, which “strikes a balance in favor of home

rule that calls for a corresponding adjustment in judicial atti-

tude.” We went on to caution that “home rule abilities and

immunities are to be broadly construed, and any claimed

exception to them must be given careful scrutiny by the

courts.” Id. at 252. Act 291 as a claimed exception to the

powers of the City’s Home Rule Charter does not pass the

careful scrutiny that is required in this case.

While the state’s police powers are admittedly broad,

they are limited to such measures as are reasonable.” City of

New Orleans v. Bd of Dir. of LSM, 98-1170, p. 1 1 (La.

3/2/99), 739 So2d 748, 757. In determining what is reason-

able, we have held that “the action taken must be, under all

the circumstances reasonably necessary and designed to

accomplish a purpose properly falling within the scope of

police power.” Accordingly, “to sustain an action under the

police power, the court must be able to see that its operation

tends in some degree to prevent an offense or evil or other-

wise to preserve public health, safety, welfare or morals.” Id.

at 757, Francis v. Morial, 455 So. 2d 1168, 1173 (La. 1984).

The first question to be answered in determining whether the

state police power has been abridged by a home rule munic-

ipality’s local law is whether the local

A-102

law conflicts with an act of the state legislature that is nec-

essary to protect the “vital interest” of the state as a whole.

City of Baton Rouge v. Williams, 95-03 08, pp. 5-6 (La.

10/16/95), 661 So. 2d 445, 449; City of New Orleans v. Bd

of Com'rs, supra.

I simply do not see where the State, in reserving for

itself the exclusive right to recover against the firearms

industry for damages for injury, death, or loss, is attempting

to prevent an offense or evil or is attempting to preserve

public health, safety, welfare or morals. I also do not agree

that the Legislature acted to protect a vital interest of the

state. In fact, quite the opposite could be argued in that the

State is in effect hurting the public welfare by restricting the

public’s right to recover damages for injuries resulting from

the act of another, as well as cloaking an entire industry with

immunity from suit by certain plaintiffs.

I acknowledge that these conclusions leave unan-

swered a myriad of legal issues raised in this litigation.

However, as I write as a dissenter and not as a member of the

majority, I choose to pretermit the remaining legal issues

raised by my conclusions, such as the effect of 1999 La. Acts

1299 (La. R.S. 9:2800.60) on the City’s lawsuit.

A-103

SUPREME COURT OF LOUISIANA

No.00-CA-1132

APR 3 2001

MAYOR MARC H. MORIAL AND THE CITY OF

NEW ORLEANS

Versus

SMITH & WESSON CORPORATION ET AL.

LEMMON, J., Concurring

E é F Police P

Although agreeing with the majority in the dismissal

of the action on the exception of no right of action, I also

agree with the dissenters that La. Acts 1999, No. 29 1, enact-

ing La. Rev. Stat. 40:1799 (after the filing of the suit at

issue), was not a regulation of firearms, but was a regulation

of tort actions, and did not constitute the exercise of the

police power of the state.

La. Rev. Stat. 40:1796, enacted in 1985 (before the

filing of the suit at issue), did regulate firearms by preempt-

ing local governments from enacting any legislation or reg-

ulation, concerning the sale, purchase, possession, owner-

ship, transfer, transportation, license or registration of

firearms, that was more restrictive than state law. The 1998

suit by the City did not violate Section 1796, because the suit

was not an ordinance or a rule or regulation concerning

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firearms. The suit was an action for tort damages caused to

the City by the defendants’ allegedly negligent design or

manufacture of firearms.

The 1998 suit would have violated Section 1799, if it

had been in effect when the suit was filed. However, Section

1799 was not intended to regulate any aspect of the sale, pur-

chase, possession, ownership, transfer, transportation,

license or registration of firearms. Section 1799 was clearly

a regulation of certain tort suits by limiting the persons and

entities who can recover damages. The Act legislatively

removed from local governments the right to file suit for

damages caused by the negligent design and manufacture of

firearms, while reserving to the state the right to sue for such

damages). !

This new legislation that preempted local govern-

ments of their right of action to file certain types of tort suits

was a policy decision to set limits and define the scope of

liability in such actions Just as the legislative limitation of

the right of action to certain persons in the recovery of

wrongful death damages under La. Civ. Code art. 23 15.1

Was a policy decision. The policy decision in Section 1799

was perhaps designed to strike a balance in the filing of such

actions, without which many questions regarding proper

party plaintiffs may have arisen, but the policy decision to

preempt the field clearly was not the exercise of police

power to promote the general public health, safety, welfare

1 Contrary to defendants’ argument, a decision by this court in

the present action finding negligence in the design or manufacture of

certain firearms would apply uniformly throughout the state and would

not vary from parish to parish, even though only one city brought this

action.

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and morals or to protect and promote the vital interests of the

people as a whole.

Et Doviting | iniaet

The issue in this suit is the effect of the Act 291 on

pending litigation. In this respect, but for different reasons, |

concur in the majority’s result that Act 291 validly removed

the City’s right of action to recover this type of damages.

The majority reasoned that the Legislature intended

Act 291 to apply to actions pending on the effective date;

that a political subdivision of the state is not entitled to the

protections of the Contracts and Due Process Clauses of the

federal and state constitutions afforded to private citizens;

that the City, as a home rule charter government existing at

the time of the adoption of the 1974 Constitution, neverthe-

less, retained its existing powers, functions and duties under

La. Const. art. V1, §4 which may not be changed by state

law unless necessary in the exercise of the state’s police

power; 2 and that Act 291 was a valid exercise of that police

power.

I would not reach the police power issue because I

disagree with the application in this case of La. Const. art.

V1, §4, as broadly interpreted in City of New Orleans v,

Board of Commr’s of Orleans Levee Dist., 93-0690 (La.

7/5/94), 640 So. 2d 237 (a decision in which I! did not

2 if this suit had been filed by a local government with a home

rule charter adopted after 1974, the exercise of police power would not

be an issue.

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participate)>. La. Const. art. V1, §4 does not, in my view,

universally prohibit the Louisiana Legislature from pre-

empting the powers of local government except in the exer-

cise of the state’s police power.

The purpose of Article VI was best stated in

R. Gordon Kean, Jr., Local Government and Home

Rule, 21 Loy.L.Rev. 63, 66 (1975), as follows:

Municipalities and other local governmental units

are, of course, an integral pail of state government.

“H m 7

should be more properly viewed as a rule by which

hi goVernment has the freedom and flexibility to

] irs Wi ndu a-

tive inter in erence, In matters of true state wide con-

c iV r civil relationshi

the state should be supreme. The “home rule” provi-

sions of Article VI were designed with this in mind;

therefore, these provisions do not go as far in grant-

ing home rule powers as some might have preferred.

ee

f 1 iV ]

eT Article VI does not create sepa-

rate city-states; it does, however, afford the means by

whi X 2

1 Ww Vv

Constitution. With regard to “structure and

3 That decision involved the issue of the power of the City of

New Orleans to institute legislation restricting the zoning and use of land

owned by the state. That decision did not involve the City’s immunity

from legislative control.

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organization”, the home rule charter unit is supreme,

as it should be. Thus, the concept embodied in

Article VI completely reversed the theory of local

government as a “creature of the state” with only

delegated authority. The old strict constructionist

theory is also replaced by one which recognizes that

n is] n Ww

local government possesses it, thereby rendering any

further enabling legislation unnecessary. (emphasis

added).

- Article VI granted all local governments with home rule

charters the right, without seeking legislative authority, to

manage their own affairs in any manner which is not incon-

sistent with the Constitution or with the charter itself, and

which is not limited by general law. Section 4 of Article VI

specifically reserved to local governments with home rule

charters adopted before the 1974 Constitution the right to

retain their existing powers, functions and duties. The pur-

pose of that provision, however, was to continue the sub-

stantive authority of such local governments, while accord-

ing them the additional powers granted to other local gov-

ernments under the 1974 Constitution. Kean at 67. That pro-

vision was not intended to guarantee to those local govern-

ments with preexisting charters that there would be no inter-

ference by the Legi.slature, particularly in matters of

statewide concern.

The broad right granted to the City of New Orleans

by its Charter to “sue and defend, plead and be impleaded, in

all courts and places . . . in all matters and proceedings” did

not give the City an unconditional right to sue for damages,

arising from injuries to numerous citizens domiciled

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throughout the state, which were indirectly incurred by the

City as well as by all other municipalities and parishes and

by the state. In this type of action involving a matter or

statewide concern and an interest shared with other local

governments and the state, the state necessarily has the right

to preempt political subdivisions as the proper party to bring

such an action. Act 291 merely codifies this preemption

(although it d

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