A Defeat In Illinois for Suits Asking the Gun Industry to Better Screen Customers
Why It Was the Right Decision

Two weeks ago, the Illinois Supreme Court decided a pair of very significant cases involving corporate liability for handgun violence. Together, the unanimous decisions will effectively end the efforts of gun control activists to use public nuisance law to force gun manufacturers, distributors, and retailers to exercise more control over who buys their products - at least in Illinois.

Various courts in New York and New Jersey had already rejected similar suits But the Illinois suit was expected to be a major test case. As such, it was a clear win for the gun industry.

In this column, I will cautiously praise the Illinois Supreme Court's decisions. However, I will also criticize the court for making a few fundamental mistakes as it struggled to come up with the right outcome in a tough case.

Interestingly, these decisions flatly contradict the claims of Congressional Republicans that the states cannot be trusted to keep their own tort law in order. They prove quite the opposite: The states are more than capable of policing the bounds of what kind of tort suits they will permit, and disallow.

The Two Suits - and Why Suits Like These Have Been Controversial

The two cases are Chicago v. Beretta Corp. and Young v. Bryco Arms. They were decided on the same day, and deal with related issues. The opinions, too, are essentially identical, except that at the end of Young, five Illinois justices--a majority--filed a special concurrence, which I will discuss below. Justice Garman wrote for a unanimous Illinois Supreme Court in both opinions.

In Beretta Corp., the City of Chicago brought a public nuisance suit against eight manufacturers, four distributors, and eleven dealers of handguns - alleging that some of their guns had been illegally possessed and used in the city in criminal activity.

In Bryco Arms, the families of two persons who had been killed by the use of illegally possessed firearms brought a similar public nuisance lawsuit. They sued the two manufacturers, the two distributors, and the dealer who were directly involved in the chain of supply of the guns at issue.

The gun industry defendants successfully argued that the two suits lacked merit because, even if the plaintiffs' factual allegations were true, they did not support public nuisance claims.

Suits like these have been very controversial. Many state and federal courts have rejected them, and the Illinois suit was seen by many as the activists' last hope.

Nevertheless, as I have discussed in an earlier column, fear of this sort of litigation had prompted efforts in Congress to preempt the states from even having jurisdiction over suits against manufacturers - except in a subset of cases presenting a narrow range of civil liability issues.

The Basis of the Suits: Knowledge Of Profits From Gun Sales to Criminals

At the heart of both suits was the claim that, at every stage in the chain of custody in the handgun business, many of the companies involved knew they were making money by helping criminals get their hands on guns.

More specifically, the plaintiffs in the Illinois cases had hoped to show at trial--based on voluminous statistical data and recently uncovered evidence -- that gun manufacturers, distributors and dealers knew they were catering to black market buyers who would buy guns outside Chicago, then resell them illegally within the city, where they are difficult to own legally.

The defendants have vigorously challenged many of the factual allegations of the plaintiffs. But no one can seriously deny that these "straw purchases" exist. Nor can anyone reasonably deny that this method of obtaining handguns makes it much easier for persons with criminal intent to get them.

Why the Suits Were Brought as Public Nuisance Suits: Tort Suits Had Failed

Readers may ask: Why were the suits brought as public nuisance suits in the first place - rather than as the kind of tort suits that have been used against the tobacco industry? The short answer is that this is a new, creative tactic in a tort litigation campaign that has generally been a failure.

Granted, there have been a few successes: In 2001, Smith & Wesson voluntarily agreed to monitor its distributors (which made it a pariah in the industry). And this year, Brandon Maxfield, a 17-year-old-boy paralyzed by a defective safety catch in a handgun produced by Bryco Arms, attempted to use the money he won buy the company and put it out of business.

Yet in general, the tort strategy has been a failure. Practically every court that has considered class action negligence claims against the gun industry has rejected them. Usually, the reason has been that courts do not see gun manufacturers as owing a legal duty to victims of handgun violence to reduce the general risk of crime in their community.

But a public nuisance claim, in contrast, does not depend on a breach of duty by the defendant. It simply asserts that the defendant's actions are "unreasonably" interfering with the enjoyment of a public right. Here, the right asserted is the basic right to safety on public streets.

A government may sue in public nuisance, as well as private citizens, if they can prove that they have suffered, as a result of the defendant's interference with the public right, a special harm. If a plaintiff wins his suit in public nuisance, he can receive both money damages and injunctive relief.

Thus, across the country, gun control activists -- either alone or in coordination with municipalities ravaged by gun violence -- have filed public nuisance suits against anyone connected with the handgun trade. As noted above, Illinois was to be the test case for whether such suits might ever succeed.

The Illinois Supreme Court's First Holding: No "Public Right" To Be Crime-Free

In her opinions for the court, Justice Garman attacked the public nuisance argument at every level.

First, she doubted whether a "public right" was alleged to be involved - for an infringement of the "right to be free from the threat that members of the public may commit crimes against individuals" affects only a few unlucky individuals, not the general public. (In contrast, class public nuisances such as noxious fumes -- or even offensive conduct emanating from a "bawdy house" - affect all equally.)

But she also made it clear that even if the right to be free from the threat of crime were deemed a public right, the plaintiffs would still have lost - for other reasons.

The Court's Second Holding: A Legal Sale Is Not An "Unreasonable" Interference

Another requirement for public nuisance is "unreasonable" interference with a public right. Garman reasoned that since the sale of handguns was a legal activity, it could not count as an "unreasonable" interference.

(Otherwise, nuisance law would arguably swallow up several areas of tort law. A products liability claim depends on proof a product was defective; the guns were not. But a nuisance claim requires no such proof. A negligence claim in tort, as noted above, requires proof of breach of duty. A nuisance claim does not.)

It wouldn't have been the first time in U.S. history, though, that a legal activity was deemed a public nuisance, however, as Garman admitted. Before there were laws against pollution, the production of noxious waste may have been both legal and a public nuisance.

But Garman argued that legal public nuisances ought to be few and far between - especially in modern times, when the power of the regulatory state has grown vastly. And especially where the state has already regulated an activity, he suggested, the courts should butt out. And handguns are heavily regulated.

The Court's Third Holding: Lack of Proximate Cause Under Illinois Law

The court's third holding was that, under Illinois law, plaintiffs could not prove proximate cause. Under Illinois law, a defendant will not be deemed the proximate cause of the consequences her wrongful act was merely a "condition" of the consequence, as opposed to a "cause." On this holding, the court may have been wrong.

The leading case setting out this distinction is the 1999 decision in First Springfield Bank v. Galman. There, the defendant parked his car negligently. As a result of her detour around the truck, in an intersection, the plaintiff was struck by a car and killed. Nevertheless, the defendant was not held liable for her death.

Why? Because the Illinois Supreme Court held that the negligent parking job was not the proximate cause of the plaintiff's death, because the way she was injured was unforeseeable.

Presumably, Judge Garman felt that injury of crime victims by illegally resold guns was not foreseeable by the guns' legal manufacturers, sellers, and distributors. But proximate cause is typically a jury issue. And generally, the question of what counts as a foreseeable consequence - and thus, whether the cause of that consequence is "proximate" -- should be decided by the "risk rule": Was the injury suffered by the plaintiff a consequence of the sort of risk which made the defendant's conduct wrongful?

Couldn't one argue that failing to take steps to insure that gun customers were properly screened was exactly the sort of risk which made the defendants' conduct a nuisance?

This question seems to bring us right back to the court's earlier argument that the legal production of handguns could not be an unreasonable interference with a public right. The court is either wrong on both counts - or right on both counts. Either gun sales are both proximate causes of gun violence, and unreasonable interferences with safety rights, or they are neither.

Why The Illinois Supreme Court Got It Right - But So Did the Concurrence

In the end, if one agrees that heavily-regulated activities ought to be addressed by statutes, regulations, product liability law and tort law - but not by the law of public nuisance - one agrees with Judge Garman and the Illinois court.

I am inclined to agree with Judge Garman and the court. The common law of public nuisance is rooted in the Nineteenth Century, not the Twentieth. Handgun activists' attempt to appropriate it, while extraordinarily clever, is also extraordinarily formalistic.

On one level, it sounds appealing to say that the mass marketing of handguns is "just like" operating a mill that spews out pollution. But is it really? And doesn't it make a difference that when polluting mills were deemed public nuisances, the EPA did not yet exist?

Making this parallel, in short, looks at the law without bothering with its history.

The Illinois Supreme Court sensibly realizing that dusty public nuisance doctrines are probably ill-suited for dealing with modern problems created by the interaction of capitalism and urban crime.

However, this should not be the end of the story. Five members of the Illinois Supreme Court went one step further than Garman. Although they were willing to look at the law of public nuisance realistically, they were not willing to ignore the real world around them.

Justice Freeman, in a special concurrence joined by the other four, said that the plaintiffs' allegations, if true, support the conclusion that the gun manufacturers know that their actions increase the crime rate, and "actively seek to exploit that fact to increase their profit margin." And he ended his concurrence - on behalf of all five, a majority of the court - with a plea to the state legislature to do something.

In other words, although he was accepting Garman's argument, he raised the ante--if public nuisance was no longer available because the state had taken over the business of regulating handguns, then the people of Chicago deserved real regulations that really protected them.

Let's hope that the state and federal governments listen to these judges.