Defeat In Illinois For Lawsuits Against Gun Industry

FYI (copy below, reference links in original):
http://writ.news.findlaw.com/sebok/20041129.html
AOL users click here
************************************************************
A Defeat In Illinois for Suits Asking the Gun Industry to
Better Screen Customers
Why It Was the Right Decision
By ANTHONY J. SEBOK
[email protected]
—-
Monday, Nov. 29, 2004

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. Click here to find out more!

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.