Brian Eason

IndyStar

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 like it 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.

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

President Barack 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 Ft. 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. By extension, he said, that could make it easier for the NRA to establish standing on a member's behalf.

"It is aggressive, and it certainly is a broader conception of who can sue than would be permitted in a federal court," Scott said.

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One of the bill's authors, state Sen. Jim Tomes, R-Wadesville, 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."

In Indy, the stolen gun reporting requirement is on ice for now. The newly elected council will have an opportunity to override the veto at its next meeting this month, but it's unlikely to receive the two-thirds majority needed for passage. The sponsor, former Democratic Councilman Kip Tew, left office Dec. 31, but it could be brought back if supporters think it stands a better chance of withstanding a veto under new Democratic Mayor Joe Hogsett.

Absent the ability to pass new gun regulations, Indy has tried a number of strategies to reduce the number of illegal guns in the street, but the efforts have been disjointed at times. In 2012, law enforcement worked with church groups on a gun buy-back program that recovered more than 90 firearms. But a year earlier amid concerns that a broader gun amnesty program would hamper ongoing criminal investigations, the Indianapolis Metropolitan Police Department canceled a city-sponsored drop-off event that would've allowed people to turn over their guns to police, no questions asked.

Today, opponents of the stolen gun ordinance say it would be difficult to enforce and could re-victimize someone who's been burglarized by forcing them to pay a fine for non-reporting.

Backers say it would help in two ways. It could allow police to respond more quickly to guns that have been stolen. And it could make it harder for gun traffickers to evade responsibility. Tew points to a 2010 report commissioned by Mayors Against Illegal Guns that found that the seven states with stolen gun reporting requirements had lower rates of illegally trafficked guns being used to commit crimes.

Tew thinks the state law giving standing to the NRA simply catered to the powerful gun lobby.

"I don’t know of any other place in the Indiana state statute that I can think of where the legislature gave a special interest group standing," Tew said. "It speaks to the power the NRA has over this building (the Statehouse).

"They wanted it, they got it."

To Tomes, if the standing clause deterred the city from passing the ordinance, the state law worked as intended. While Tew says the proposal 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."

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The Associated Press contributed to this report. Call IndyStar reporter Brian Eason at (317) 444-6129. Follow him on Twitter: @brianeason.