Guns, Special Legislation, and a Correctable Constitutional Mistake

 Evan C. Zoldan[i]


When the Court of Appeals of Indiana decided an important case about gun liability in May 2019, it got a key legal point wrong. The case, City of Gary v. Smith & Wesson,[ii]arose out of a lawsuit filed by the City of Gary, Indiana (the “City”), against Smith & Wesson and other firearms manufacturers. The City asked the court to hold the manufacturers liable for creating a public nuisance and for the negligent design, distribution, and marketing of firearms. After the City’s lawsuit was filed, the Indiana legislature passed a statute granting immunity to gun manufacturers for these types of claims. Because the lawsuit predated the statute, however, it was not clear whether the statute would affect the pending lawsuit.[iii]In order to make sure that the statute would apply to the City’s pending claims against the manufacturers, the legislature made the immunity statute retroactive – that is – applicable to suits filed before the statute was passed. The immunity statute was made effective starting just a few days before the City filed suit, leaving no doubt that it was targeted to reach the City’s pending case. Applying the immunity statute, the trial court granted judgment to the defendant manufacturers.[iv]The City appealed.

Indiana’s Special Legislation Prohibition

On appeal, the City challenged the constitutionality of the immunity statute on a number of bases. Most saliently, the City claimed that the immunity statute is “special legislation” in violation of the Indiana Constitution.[v]Special legislation can be distinguished from general legislation in the following way: While general legislation sets generally applicable rules, special legislation singles out an individual case, person, company, or industry for special treatment that does not apply to the population at large.[vi]The Indiana Constitution prohibits special legislation that addresses certain subject matters, such as legislation granting divorces or punishing crimes. It also prohibits all other special laws “where a general law can be made applicable.”[vii]Like most states, Indiana added special legislation provisions to its constitution to combat corruption and favoritism, and to improve the legislative process.

Of course, the legislature can pass a general law providing a process for granting divorces (which it has)[viii]and it can pass general laws punishing future crimes (which it does)[ix]. Its special legislation provisions, by contrast, prohibit the legislature from passing a statute that divorces a particular couple. They prevent the legislature from defining a crime in such a way as to make an identifiable person guilty. And most importantly, the special legislation provisions restrain the legislature from passing any special law where a general law can be made applicable.[x]Instead, the legislature is required to pass generally applicable laws and let the other branches of government (that is, the courts and the executive branch) apply those general laws to particular individuals as appropriate.

Indiana’s Special Legislation Prohibition and the Immunity Statute

Because it applies the law to a particular case, the immunity statute might well be “special” within the meaning of the Indiana Constitution’s special legislation provisions. Unlike a generally applicable law, the immunity statute does not merely set out a general rule and allow the courts to apply it to a particular case. Instead, it is designed to reach a particular suit, the City’s pending suit against the firearms manufacturers. In other words, by enacting the immunity statute, the legislature not only acted in a legislative capacity by creating a legal rule, but it also encroached on the role of the judiciary by applying that rule to a particular, identifiable case.

Here is where the Indiana Court of Appeals made its legal error. Rather than determining whether the immunity statute was a special law, the Court of Appeals held that it “need not conclusively determine whether the Amendment is a general law or a special law.”[xi]The Court reasoned that because the immunity statute applied “uniformly across the State,” it would not run afoul of the Constitution’s special legislation provision even if it were special. This conclusion misreads Indiana’s special legislation prohibition.

In addition to prohibiting certain enumerated special laws, the Indiana Constitution also provides that “in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.”[xii]Contrary to the Court’s reading, this provision requires several separate determinations. A court must first determine whether a statute is special or general.[xiii]If it is special, the court must determine whether it falls within one of a number of specifically enumerated prohibitions on special legislation. If it is special and falls within one of these enumerated provisions, then it is unconstitutional.[xiv]If it is special but does not fall within one of these enumerated prohibitions, then the court must determine whether a general law can be made applicable to the subject matter of the legislation. If a general law can be made applicable to the subject matter of the legislation, the special law is prohibited. Moreover, when a general law can be made applicable, even a general law is prohibited unless it operates uniformly throughout the state.[xv]

The Court in City of Gary v. Smith & Wesson misread the uniformity requirement. Simply because a statute is uniform does not mean that it is general. As a result, uniformity does not, in itself, save a special statute’s constitutionality if the special legislation provisions require it to be general. The City of Gary Court, therefore, should have determined both whether the law was special and whether a general law could be made applicable to the subject matter of the statute. Only after making these determinations would the Court have been able to apply the special legislation provisions in their entirety.

A Chance to Correct a Mistake

The City’s case is still pending. The Court of Appeals remanded it for additional proceedings and it is likely that the case will return to the Court of Appeals and perhaps, eventually, move on to Indiana’s Supreme Court. At some point during this litigation (whether on rehearing or on appeal to the Supreme Court), an Indiana court will have an opportunity to revisit the Court of Appeals’ reading of the Indiana Constitution. When it does so, it should hold that uniformity does not cure all potential special legislation problems. Instead, the proper approach is for the court to determine, separately, whether the statute is general or special, whether a general law can be made applicable, and whether, if special, it is prohibited as part of the enumerated list of prohibited special laws. Only by making clear the proper reading of its special legislation provisions will the Indiana courts give proper effect to the Indiana Constitution’s prohibition on special legislation.


[i]Professor of Law, University of Toledo College of Law.

[ii]No. 18A-CT-181, 2019 WL 2222985 (Ind. Ct. App. May 23, 2019).

[iii]Landgraf v. USI Film Products, 511 U.S. 244, 265-267 (1994).

[iv]City of Gary, No. 18A-CT-181, 2019 WL 2222985, at *1.

[v]IND. CONST. ART. IV, § 22-23.

[vi]Evan C. Zoldan, Legislative Design and the Controllable Costs of Special Legislation, 78 MD. L. REV. 101, 108-09 (2019).

[vii]IND. CONST. ART. IV, § 22-23.

[viii]IND. CODE § 31-15-2-2.

[ix]IND. CODE § 31-15-35.

[x]IND. CONST. ART. IV, § 22-23.

[xi]City of Gary, No. 18A-CT-181, 2019 WL 2222985, at *7.

[xii]IND. CONST. ART. IV, § 23.

[xiii]Alpha Psi Chapter v. Auditor of Monroe Cty., 849 N.E.2d 1131, 1136 (Ind. 2006) (“[t]he determination of whether a law is special or general is a threshold question in determining its constitutionality under both Article IV, Section 22 and Section 23.”); IND. CONST. ART. IV, § 23; Mun. City of South Bend v. Kimsey, 781 N.E.2d 683, 689-90 (Ind. 2003).

[xv]IND. CONST. ART. IV, § 23; Mun. City of South Bend, 781 N.E.2d at 689-90.


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