It's UNANIMOUS!

The Illinois Supreme Court announced two interrelated decisions today, both on gun manufacturer and distributor liability when the product they manufacture and sell is used criminally. Both decisions were unanimous. Both decisions threw out the lawsuits against the manufacturers and distributors. Both decisions have some interesting points. The first, City of Chicago v. Beretta contains the following:

Plaintiffs' specific allegation against the named dealer defendants is that they "sell firearms even when they know or should know that the firearms will be used or possessed illegally in Chicago." This allegation is supported by assertions that dealers know some of their customers are residents of Chicago and that it is illegal for those customers to use or possess these weapons in the city; that dealers make sales even when the words or behavior of the buyers indicate an intention to use the weapon illegally; that dealers sell handguns designed to be carried as concealed weapons, even though state law prohibits the carrying of concealed weapons; and that dealers make multiple sales to individuals whom they know or should know intend to resell the guns in the city. The second amended complaint identifies the dealer defendants as part of a "core group of irresponsible dealers" who attract the business of gunrunners and other criminals, as reflected by ATF trace data. The complaint also includes factual assertions regarding numerous undercover "sting" operations carried out by police officers at the various dealer defendants' stores. Plaintiffs further assert that the dealers' practices "have caused a large underground market for illegal firearms to flourish in the City of Chicago," and that they "know that many of the firearms they sell are used or possessed illegally, and put into the underground market." Finally, the complaint states that the dealers' "actions and omissions in selling firearms to Chicago residents that are illegal in the City of Chicago unreasonably facilitate violations of City ordinances, and contribute to physical harm, fear and inconvenience to Chicago residents, and are injurious to the public health and safety of Chicago residents."

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We have found no Illinois case recognizing a public right to be free from the threat that members of the public may commit crimes against individuals.

And you won't, because that would raise the specter of making the State liable for not protecting individual citizens - and that won't happen.

Leaving aside for a moment the costs incurred by plaintiffs, which we determine, below, are not recoverable as damages, we query whether the public right asserted by plaintiffs is merely an assertion, on behalf of the entire community, of the individual right not to be assaulted.

Understand the difference here: You have a right not to be assaulted. From that right comes the power of the State to arrest and punish such an assailant. It's not a carte blanc to allow the State to do whatever it feels necessary to prevent you from being assaulted, it's a recognition that actually assaulting someone is a criminal act. The plaintiffs here are trying to stretch the law, and the court recognizes the enormous problem inherent in that Pandora's Box, and they illustrate it here:

By posing this question, we do not intend to minimize the very real problem of violent crime and the difficult tasks facing law enforcement and other public officials. Nor do we intend to dismiss the concerns of citizens who live in areas where gun crimes are particularly frequent. Rather, we are reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in a manner that may create a risk of harm to another.

For example, the purchase and consumption of alcohol by adults is legal, while driving under the influence is a crime. If there is public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right.

But they shut that line of reasoning down, hard and emphatically

We conclude that there is no authority for the unprecedented expansion of the concept of public rights to encompass the right asserted by plaintiffs. Further, because we conclude, below, that plaintiffs' claim does not meet all of the required elements of a public nuisance action, we need not decide whether to break new ground by creating such precedent.

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Plaintiffs concede that their public nuisance claim, based on the alleged effects of defendants' lawful manufacture and sale of firearms outside the city and the county, would extend public nuisance liability further than it has been applied in the past. Nevertheless, they, and the amici in support of their position, argue that extending the doctrine of public nuisance in this manner is a proper exercise of this court's inherent authority to develop the common law.

And they cite previous case law that argues against this line of reasoning:

Cases from other jurisdictions in which reviewing courts have rejected public nuisance claims against the gun industry offer more analysis of this question. In Spitzer v. Sturm, Ruger & Co., a New York appellate court observed:

"[G]iving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.

"All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets, and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born." Spitzer, 309 A.D.2d at 96, 761 N.Y.S.2d at 196.

Citing an earlier case rejecting a theory of negligent marketing against a gun manufacturer, the Spitzer court observed that " 'judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.' " This concern, the court, noted, "is common to both negligent marketing and public nuisance claims."

Similarly, a federal court of appeals, applying New Jersey law, concluded that:

"Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce. On the contrary, the courts have enforced the boundary between the well-developed body of product liability law and public nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability, nuisance law 'would become a monster that would devour in one gulp the entire law of tort,' [citation]. If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity."

In addition, a Florida appellate court affirmed the trial court's dismissal of Miami-Dade County's action against firearms manufacturers, trade associations, and retailers, saying:

"The County's request that the trial court use its injunctive powers to mandate the redesign of firearms and declare that the appellees' business methods create a public nuisance, is an attempt to regulate firearms and ammunition through the medium of the judiciary."

A Florida statute expressly reserves the field of regulation of firearms and ammunition to the state legislature (Fla. Stat. §790.33 (1999)). In Illinois, cities and counties are free to impose gun regulations within certain limits (see 720 ILCS 5/47-5 (West 2002)). Nevertheless, we agree with defendants that the Florida court's observation is worthy of consideration.

Defendants' position is that the legislative and executive branches of state and federal government are better suited than this court to address the societal costs that flow from the illegal use of handguns, particularly given that the commercial activity at issue is already highly regulated. Further, defendants argue that plaintiffs' "frustration" at their inability to effectively regulate gun possession in the city cannot be "alleviated through litigation as the judiciary is not empowered to 'enact' regulatory measures in the guise of injunctive relief. The power to legislate belongs not to the judicial branch of government, but to the legislative branch."

And that, ladies and gentlemen, is a resounding legal slapdown.

More:

In the present case, the question is whether dealer defendants, given the nature of the product they sell, their awareness of Chicago ordinances regarding firearms, and their knowledge that some of their customers are Chicago residents, could reasonably foresee that the guns they lawfully sell would be illegally taken into the city in such numbers and used in such a manner that they create a public nuisance.

We conclude not. We agree with the conclusion of the appellate division of the supreme court of New York in Spitzer: "defendants' lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm."

This result is consistent with other Illinois cases in which a defendant's conduct was found to be so remote from the resulting injury that legal cause was not established.

And here's an example case:

Although we have found no reported cases in which a nuisance claim has been dismissed at this stage for lack of legal cause, the case of Watson v. Enterprise Leasing Co., 325 Ill. App. 3d 914 (2001), in which the theory of liability was negligent entrustment, offers some interesting parallels to the present case. The defendant was a merchant who furnished a condition by which the injury was made possible. Specifically, Enterprise leased a vehicle to one party with the knowledge that it was likely to be driven by one or more third parties. The lessee entrusted the vehicle to a friend, from whom it was taken by yet another person. Eventually, an intoxicated minor took the keys from that person and caused an accident resulting in the death of his passenger. Affirming the trial court's grant of summary judgment for the defendant, the appellate court noted that the element of cause in fact had been satisfied. Absent the leasing of a car to the first individual, the death would not have occurred-at least not in an accident involving this particular vehicle. The intoxicated driver would either not have driven at all and there would have been no accident, or he would have obtained the keys to another vehicle and the accident would have occurred, but would not have involved the defendant's vehicle. Thus, the appellate court concluded, the "crux of the issue" was "legal cause, which revolves around foreseeability." The driver who caused the fatal injury, the court noted, was at least two steps removed from the person to whom Enterprise directly entrusted the car. In addition, the accident was caused by the criminal act of a third party. These events were not reasonably foreseeable. Although the defendant furnished a condition that made the resulting injury possible, the creation of this condition was not the legal cause of the fatal accident because the defendant's conduct was too remote to constitute legal cause. As the appellate court observed, to "impose foresight on defendant under the particular circumstances present in this case would render it liable for anyone who drove the car, thus making it strictly liable."

The parallels to the present case are obvious. Dealer defendants, like the car rental company in Watson, are in the business of providing a lawful product that may be used in unlawful ways, causing injury or death. Both the possession and use of firearms and the driving of motor vehicles are highly regulated by state law. In the present case, the existence of the alleged nuisance in the city of Chicago is several times removed from the initial sale of individual weapons by these defendants, just as the intoxicated driver was at least twice-removed from the defendant in Watson.

The appellate court in Watson found it unreasonable to expect the car rental company to foresee a single accident caused by an intoxicated teenage driver who took the keys to the car without the permission of the person who had rented the car. In the present case, the claim of negligent entrustment has been dismissed and its dismissal has not been appealed. Thus, we are not faced with the question of whether a gun dealer might be held liable for negligently entrusting a weapon to an individual buyer when it is foreseeable that the buyer might allow a third party to possess or use the gun illegally. Instead, plaintiffs argue that it is foreseeable to these defendants that the aggregate effect of numerous sales transactions occurring over time and in multiple different locations operated by businesses with no ties to each other will result in the creation of a public nuisance in another city.

Here's the part I like, because they spell out their thinking explicitly:

Finally, although these dealers' sales of weapons create a condition that makes the eventual harm possible by putting these weapons in private hands, it is not at all clear that the condition would cease to exist even if these particular defendants entirely ceased selling firearms. Just as in Watson, in which the intoxicated teenager managed to gain access to a set of car keys, those who intend to illegally possess and use firearms in the city of Chicago would still be able to obtain them. The manufacture and sale of firearms is legal. There is a market for these products that is served by thousands of dealers all across the country. The sales that would otherwise have been made by these dealers would be made by others. Ultimately, there would be a shift in market share between these dealers and others and, perhaps, an increase in the price of illegal weapons "on the street" as those intent on illegal gun ownership had to go further afield in search of weapons to buy.

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Plaintiffs and the amici supporting their position advocate expansion of the common law of public nuisance to encompass their novel claim. They anticipate our reluctance to expand nuisance liability in an area highly regulated by both state and federal law and urge that it is not only within our inherent authority, but it is also our duty, to construe the common law to aid a local government's effort to protect its citizens from gun violence.

To do so, we would have had to decide each of the issues raised in this appeal in plaintiffs' favor. In effect, we would have had to resolve every "close call" in favor of creating an entirely new species of public nuisance liability. Instead, after careful consideration, we conclude that plaintiffs have not stated a claim for public nuisance. Even granting, arguendo, that a public right has been infringed, we conclude that their assertions of negligent conduct are not supported by any recognized duty on the part of the manufacturer and distributor defendants and that, under the Gilmore rule (Gilmore, 261 Ill. App. 3d at 661), their allegations of intentional conduct are insufficient for public nuisance liability as a matter of law. In addition, we hold that proximate cause cannot be established as to the dealer defendants because the claimed harm is the aggregate result of numerous unforeseeable intervening criminal acts by third parties not under defendants' control.

And here's the kicker:

Any change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts. In response to the suggestion of amici that we are abdicating our responsibility to declare the common law, we point to the virtue of judicial restraint.

We, therefore, reverse the judgment of the appellate court and affirm the judgment of the circuit court, which properly granted defendants' motion to dismiss.

Pretty good decision. (I've excised some of the legal references and selectively edited for better readability. If you're legally inclined, go to the link and read the decision in whole.)

The second decision released today was Young v. Bryco Arms, and it leaned on today's City of Chicago decision pretty heavily, since the arguments were essentially identical. I won't quote from it (however much I'd like to,) since this piece is long enough as it is, but I want you to consider something: Yes, the gun-rights side "won" and most people would expect that the gun-ban forces would be seething to have lost in their favorite forum, the courts. To, in fact, have been slapped down - and hard - in that forum, for trying to legislate through the judiciary.

But that's not the aim. Consider how much it has cost Beretta et al. to fight this all the way to the Illinois Supreme Court. While the gun-ban forces have been using TAX DOLLARS. The Brady Bunch didn't file this suit - the CITY OF CHICAGO did. In Young I'm certain that the lawyers were probably acting pro bono with their expenses picked up by Brady, at most.

The purpose of these lawsuits isn't actually to get the court to make new law - they'd love it if that happened, but I don't think even they are that delusional. No, what they're trying to do is bleed the gun manufacturers and especially their distributors to death. They love the appeals process. That means it's going to be more expensive!

This is why the gun-rights forces tried so hard to get the Protection of Lawful Commerce in Arms Act passed in the last session of Congress. That's the bill that got killed after Feinstain attached a renewal of the "Assault Weapons Ban" to it. As UCLA law professor Eugene Volokh explained last year, and the Illinois Supreme Court echoed in City of Chicago:

"Why does the gun industry deserve special protection?" asked Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, about the bill that would limit gun manufacturer tort liability, which it seems, might be enacted by Congress. Because the gun industry is under special attack.

If when someone drunk on Coors crashes his Mustang into me, I were able to successfully sue Coors and Ford for selling their products knowing that they cause death, or for recklessly and wantonly refusing to (for instance) install breathalyzer ignition overrides that would (maybe) help prevent drunk driving, then I'd see the bill as being about "special protection" (though then I'd just want it broadened to cars and alcohol, too). But right now, the bill is simply aimed at making sure that the tort liability system treats guns like other lawful but dangerous products.

We need to get that bill passed. Overlawyered reports that its chances of getting through the Senate this time are considerably better:

Gun pre-emption looking good

Last time up, Sen. Dianne Feinstein's poison-pill amendment passed 52-47, dooming the urgently needed bill although it enjoyed the support on paper of a wide majority of Senators. Now five Democrats among those 52 votes are going to be gone. "Conservative Republicans, all of whom were endorsed by the NRA, will replace all five Democrats." (Jim Snyder, "Gun lobby, GOP have lawsuits in their crosshairs", The Hill, Nov. 17).

Unfortunately, Sen. Feinstien was not one of the replaced.

This time we'll need to push and push hard to kill whatever "poison pill" the gun-grabbers can come up with in their attempt to derail this legislation. Because if we don't, depend on it - the lawsuits will just keep coming.