Why Indianapolis is worried the NRA could sue city

INDIANAPOLIS — A little known provision of a 2011 Indiana gun statute has made it easier for groups like the National Rifle Association to sue cities if they pass their own firearm regulations.

Now, five years later, that provision has come into sharp focus as Indianapolis looks for new ways to combat rising gun violence without running afoul of the law and risking a costly lawsuit.

The state pre-emption law — like many others around the country — prevents local government agencies from regulating guns, giving the General Assembly complete control over gun-related matters. But it also contained unusual language giving gun membership organizations special standing in court to sue cities and counties that attempt to pass their own regulations.

So what does that matter? It depends on whom you ask.

Some view the provision as usurping the typical process of establishing court standing.

Others see it as a fairly minor shift — after all, interest groups such as the NRA, American Civil Liberties Union and Sierra Club sue all the time on behalf of their members. And as long as they follow state law, cities shouldn't have to worry about a lawsuit.

The NRA's lobbying arm did not return a call seeking comment. But the prospect of an NRA lawsuit does appear to have had a chilling effect on cities that might otherwise have tested the limits of the state pre-emption law.

In Indianapolis last month, the Democrat-controlled City-County Council narrowly passed a proposal to require reporting of lost or stolen guns, only to see it vetoed by outgoing Mayor Greg Ballard over legal concerns. Along with lowering the bar for standing, it also requires cities to pay a successful challenger damages, court costs and attorney's fees.

The new questions about the 2011 law come amid a polarized national debate about gun rights.

President Obama last week announced new executive actions to enforce existing gun laws, including a federal requirement that gun dealers report lost or stolen firearms. A day later, the Indiana General Assembly unveiled a bill to eliminate one of the most basic restrictions on the books — the requirement that handgun owners have a license to carry.

The partisan debate nationally has frequently pitted liberal-leaning cities against more conservative state legislatures in a gun control fight that cities rarely win. As many as 42 states have laws like Indiana's prohibiting local governments from regulating guns. And one of them, Pennsylvania, might have been the inspiration for Indiana's court standing provision.

In the late 2000s, the NRA launched a barrage of lawsuits against cities in Pennsylvania that adopted their own gun regulations in defiance of the state pre-emption law. Some were successful, but others, including one challenging a 2008 stolen gun reporting ordinance in Pittsburgh, were thrown out because the judge determined the NRA didn't have standing to sue.

Gun control advocates think that played a role in the crafting of Indiana's 2011 pre-emption bill.

"It’s really just a heavy-handed deal by the NRA," said Ed Smith, president of Hoosiers Concerned About Gun Violence. "Setting themselves up to be able to bully cities like Indianapolis who are trying to do something about gun violence."

Normally, a person or group has to show a judge that they've been injured in some way in order to bring a lawsuit forward. But legal experts say that's not the case for a gun rights group under the pre-emption statute.

Paul Helmke, director of the Civic Leaders Center at the School of Public and Environmental Affairs at Indiana University, said the nation's legal system is intended to provide relief for those who have been directly harmed.

"If Congress passes a law that I don’t like or the state of Ohio passes a law that I don’t like," Helmke said, "I don’t have the right to say, 'judge, I don’t like this law. Throw it out.' ”

Helmke, the former mayor of Fort Wayne, served as president of the Brady Campaign Against Gun Violence at the time the bill was being debated.

But others say the bill doesn't give gun groups unusual privileges. An interest group such as the NRA can bring suits in both federal and state courts on behalf of a member. And the member doesn't even have to remain a party to the suit.

"It looks to me like this law tracks that pretty closely," said Ryan Scott, an associate professor at the Indiana University Maurer School of Law. "It does have this germaneness requirement built into the statute. Gun rights groups are allowed only to sue with respect to these kinds of claims."

But, Scott said, it does set the bar for standing unusually low for individuals. To sue over a local gun regulation, you don't have to show you've been harmed by the law, Scott said. You simply have to live in the jurisdiction where the regulation exists.

One of the bill's authors, state Sen. Jim Tomes, a Republican from Wadesville, Ind., denied in an interview that the bill gave the NRA any special rights.

"I don’t think that it prohibits them," Tomes said. "I don’t think it singles them out, either.

"It talks about individual, individual, individual; person, person, person," he added, reading from the bill.

The law doesn't mention the NRA by name. But in describing who has standing, it says, "a person is a membership organization that includes two or more individuals ... and is dedicated in whole or in part to protecting the rights of persons who possess, own, or use firearms."

To Tomes, if the standing clause deterred the city from passing the stolen gun ordinance, the state law worked as intended. While former Democratic Councilman Kip Tew says the proposal he sponsored would regulate behavior, not gun possession, Tomes believes the ordinance conflicts with the pre-emption statute. So, for that matter, does Helmke, saying, "it probably violates the Indiana law."

"We wanted to bring everything regarding firearms back under the uniformity of state law," Tomes said. "We had this whole maze of every city and town council, mayors, everybody had their own laws. This was so hectic and so hugely complicated — that was the purpose of the law."

Contributing: The Associated Press. Follow Brian Eason on Twitter: @brianeason