Find Legal Information

Docket Nos. 95243, 95253, 95256, 95280 cons.-Agenda

10-September 2003.

THE CITY OF CHICAGO et al., Appellees, v. BERETTA U.S.A. CORPORATION et al., Appellants.

Opinion filed November 18, 2004.

JUSTICE GARMAN delivered the opinion of the court:

The tragic personal consequences of gun violence are inestimable. The burdens imposed upon society as a whole in the costs of law enforcement and medical services are immense. In the present case, the City of Chicago and Cook County, in an effort to stem the rising tide of gun violence and to recoup some of the expenses that flow from gun crimes, have sued 18 manufacturers, 4 distributors, and 11 dealers of handguns that have been illegally possessed and used in the city. For various reasons, 13 manufacturers, 2 distributors, and 8 dealers remain as defendants in this case. The theory of liability is public nuisance. The relief sought by the City includes compensation for the costs of emergency medical services, law enforcement efforts, the prosecution of violations of gun control ordinances, and other related expenses. The County seeks compensation for the costs of treatment of victims of gun violence and the costs of prosecutions for criminal use of firearms, including the expenses associated with providing defense counsel to those accused of gun crimes. Both plaintiffs seek punitive damages and permanent injunctive relief to abate the alleged public nuisance.

In the circuit court of Cook County, defendants sought dismissal of the lawsuit under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)), on the basis that plaintiffs failed to state a cause of action for public nuisance. The circuit court granted the motion to dismiss.

The appellate court, construing the facts in a light most favorable to the plaintiffs, found that based on the specific acts alleged in the complaint, plaintiffs had sufficiently stated a cause of action for public nuisance against all three classes of defendants, reversed the trial court, and remanded for further proceedings. 337 Ill. App. 3d 1, 18.

We granted defendants' petitions for leave to appeal pursuant to Rule 315(a) (177 Ill. 2d R. 315(a)). Pursuant to Supreme Court Rule 345 (155 Ill. 2d R. 345), we have permitted the National Association of Manufacturers and the Product Liability Advisory Council to file briefs amici curiae on behalf of the defendants. We have also permitted the Attorney General of the State of Illinois and the National League of Cities, along with the U.S. Conference of Mayors and the International Municipal Lawyers Association, to file briefs amici curiae on behalf of the plaintiffs.

I. BACKGROUND

Plaintiffs filed this suit in November 1998 and their first amended complaint in April 1999. On February 10, 2000, the trial court granted defendants' motion to dismiss with respect to count II, negligent entrustment, and reserved ruling on count I, public nuisance. In March 2000, plaintiffs were permitted to file a second amended complaint. On September 15, 2000, the trial court granted defendants' motion to dismiss both counts, with prejudice. On appeal, plaintiffs raised only the dismissal of the public nuisance count of the second amended complaint.

All of the defendants-manufacturers, distributors, and dealers-are federally licensed to engage in their respective businesses. None of the manufacturer defendants have their principal places of business in Illinois. Several are incorporated in other states for the purpose of importing firearms manufactured abroad. Only one of the distributor defendants is based in Illinois. The dealer defendants are located in Illinois, but outside the city of Chicago.

In the second amended complaint, plaintiffs offer dramatic statistics, both for the city and the nation, regarding the number of homicides and other crimes involving handguns. Relying on these statistics, they assert that the "widespread availability and use of firearms is a national problem." They claim, further, that "[a]bsent effective enforcement and prosecution of gun control laws, firearms are readily available to anyone who wishes to use them." The ready availability of guns also contributes to suicides and accidental shootings, particularly of children. These dangers, according to the plaintiffs, "were long ago, are today, and will continue to be specifically known to defendants."

Plaintiffs also cite provisions of the city's Municipal Code that place strict requirements and prohibitions on the possession, use, and transfer of firearms in Chicago and assert that such ordinances can be effective only if the "residents of the jurisdiction imposing the restriction cannot legally purchase those firearms elsewhere and bring them back into the jurisdiction." The State of Illinois also regulates the possession, use, and transfer of firearms. However, according to the complaint, "data from recovered firearms and the undercover work of the Chicago Police Department reflect numerous and systematic violations" of these ordinances and statutes. Despite strict gun control laws intended to protect the citizens of Chicago, there are "thousands of illegal firearms" in the city and more are brought into the city every year. Thus, plaintiffs assert, the "existence of illegal firearms in the City of Chicago constitutes a public nuisance because it violates ordinances and laws designed to protect the public from a threat to its health, welfare and safety," and because the existence of readily available firearms "creates an unreasonable and significant interference" with public safety.

The second amended complaint further alleges that all three categories of defendants are put on notice of the "crime-facilitating consequences of their conduct," by virtue of the process used by the United States Bureau of Alcohol Tobacco and Firearms (ATF) to trace firearms recovered by federal, state, and local law enforcement agencies. According to the complaint, defendants "know that only firearms that have been used in connection with crimes can be the subject of traces." On the basis of trace data from March 26, 1988, to December 31, 1998, involving 858,902 guns traced nationwide, 20 of the 22 manufacturer defendants "account for approximately 48.3% of those crime guns, even though they comprise only 2.8% of the 716 manufacturers listed in the national trace database." The data provided, however, do not reveal the market shares of these manufacturers.

With regard to gun dealers, plaintiffs offer more recent data from the ATF revealing that 1.2% of dealers nationwide account for 57% of traced firearms. Plaintiffs also rely on a congressional study of ATF data released in December 1999, which found that "an extraordinary proportion of crime guns bought from 'high crime' gun dealers were probably straw purchased" and that "one-third of these crime guns were recovered in connection with a crime within just one year of its purchase, and half were traced to crimes within two years of their purchase."

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."

With regard to the defendant manufacturers and distributors, the second amended complaint alleges that they produce and distribute firearms that are regularly recovered by the Chicago police department. For each of the manufacturer defendants, the complaint lists the total number of firearms recovered by the police department from 1992 until the date of the filing of the complaint.

The tracing data offered by plaintiffs also contain a "time to crime" measurement, which reflects the number of days between the initial sale of a traced gun and its use in a crime. According to the complaint, the median "time to crime" for guns traced to distributor defendants is 834 days, while the median "time to crime" for guns traced to nondefendant distributors is 1,386 days.

In addition, the second amended complaint alleges that the defendant manufacturers and distributors knowingly oversupply or "saturate the market" with their products in areas where gun-control laws are less restrictive, knowing that persons will illegally bring them into jurisdictions where they are illegal and then possess or illegally resell them. Further, the complaint alleges that these defendants do not discourage the dealer defendants from selling their firearms irresponsibly, even though they are on notice as a result of the ATF traces that certain dealers are "responsible for a vastly disproportionate number" of the traced weapons. The defendant manufacturers and distributors "know that there is an absence of meaningful regulations of dealers" and know that "almost anyone can become a federally licensed firearms dealer." Despite this knowledge, these defendants "fail to supervise, regulate or set standards for dealers' conduct, instead relying on the mere fact that the dealers are licensed by the federal government."

Finally, plaintiffs allege that the manufacturer defendants design and market their products to appeal to those who intend to use them for criminal purposes. Specifically, features such as ease of concealment, resistance to fingerprints, and the ability to fire many rounds from a single ammunition clip make certain firearms particularly attractive to criminals. These types of weapons, according to the complaint, "serve no legitimate sport or hunting purpose and are designed to appeal to criminals who wish to be better armed than other criminals or law enforcement officers." The complaint identifies individual models manufactured by each of the manufacturer defendants as evidence of this marketing strategy, which "intentionally and recklessly causes thousands of illegal firearms to end up in Chicago."

Based on these allegations, the second amended complaint states in "Count I: Public Nuisance" that the residents of Chicago "have a common right to be free from conduct that creates an unreasonable jeopardy to the public's health, welfare and safety, and to be free from conduct that creates a disturbance and unreasonable apprehension of danger to person and property." The defendants' conduct of "intentionally and recklessly" designing, marketing, distributing, and selling firearms that they "should know" will be taken to Chicago causes "thousands of firearms to be possessed and used in Chicago illegally" and causes "a significant and unreasonable interference" with the rights of the public. Further, the complaint alleges that the conduct is of a continuing nature and has created an on-going nuisance.

The complaint also alleges that defendants "owe a duty of care to the City of Chicago and its residents and the County of Cook and its residents living within Chicago to exercise reasonable care to prevent their firearms from ending up in the hands of persons who use and possess them illegally" in the city. In addition to this allegation, which sounds in negligence, the complaint alleges that defendants' conduct is "outrageous" and is "committed with a reckless and wanton indifference to the rights and safety of others."

With regard to the remedy sought, the complaint states that the defendants' conduct causes increased expenditures by the city and county that should be compensated by money damages. In addition, because money damages "will not adequately compensate" plaintiffs for the harm suffered, they do not have an adequate remedy at law. Injunctive relief is proper, plaintiffs claim, because they and the residents of the city will continue to suffer irreparable harm in the absence of an injunction.

In sum, plaintiffs' theory is that the defendants' conduct in designing, manufacturing, distributing, and selling certain models of handguns is done with the knowledge, if not the intent, that a significant number of the guns will ultimately find their way into an illegal secondary gun market and then into hands of persons who cannot legally possess those guns within the city of Chicago. Further, the plaintiffs allege that this conduct is unreasonable, even if it may be generally in compliance with applicable state and federal laws governing the sale of firearms, because the presence and use of these guns by the people who possess them illegally, with the substantial participation of the defendants, violates the right of the general public to be free from the threat of gun violence and from jeopardy to health and safety. Finally, plaintiffs allege that the defendants' unreasonable conduct is the proximate cause of a substantial interference with the ability of Chicago residents to live in the city without fear, inconvenience, or undue risk of physical injury, and of the resulting demand on the plaintiffs' limited resources.

II. ISSUES PRESENTED

Before this court, the manufacturer defendants argue that the trial court properly dismissed the second amended complaint because: (1) plaintiffs' complaint alleges conclusions, not specific underlying facts, and thus does not conform to the fact-pleading standard; (2) the lawful sale of a nondefective product cannot, as a matter of law, constitute a public nuisance; (3) their conduct is so remote from the alleged injury that, as a matter of law, the plaintiffs cannot establish proximate cause; (4) they are not liable under public nuisance law for a situation over which they have no control, specifically, the criminal acts of others after the firearms have left their possession; (5) plaintiffs are barred from any recovery of damages in this case based on the economic loss doctrine and the doctrine prohibiting a municipality from recovering the expenses of local governmental services from alleged tortfeasors in the absence of statutory authority; and (6) the state and federal constitutions forbid the imposition of civil liability for the purpose of regulating extraterritorial commercial conduct.

The distributor defendants adopt these arguments and, with respect to (4) above, make the related argument that the claim against them sounds in negligent entrustment, not public nuisance, and because they provide firearms only to licensed dealers, not to individual consumers, they cannot be held liable for the actions of the ultimate purchaser based on negligent entrustment.

The dealer defendants make the additional argument, related to (2) above, that their practices cannot be deemed unreasonable if they are in compliance with all applicable state and federal regulations.

III. ANALYSIS

A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2000)) challenges the legal sufficiency of the complaint by alleging defects on its face. We, therefore, review de novo an order granting or denying a section 2-615 motion. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). In reviewing the sufficiency of a complaint, we accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 86 (2002). In addition, we construe the allegations in the complaint in the light most favorable to the plaintiff. Wakulich, 203 Ill. 2d at 228. When the plaintiff's theory of liability is public nuisance, the pleading requirements are not exacting because the "concept of common law public nuisance *** elude[s] precise definition." City of Chicago v. Festival Theatre Corp., 91 Ill. 2d 295, 306 (1982). The existence of a nuisance " 'depends on the peculiar facts presented by each case.' " Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 101 (2002), quoting City of Chicago v. Commonwealth Edison Co., 24 Ill. App. 3d 624, 631-32 (1974).

A. The Common Law of Public Nuisance

Because the concept "elude[s] precise definition," public nuisance has been " 'negatively defined' " by distinguishing it from other tort actions, such as trespass. Festival Theatre, 91 Ill. 2d at 306, quoting O. Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. Rev. 318, 318 (1978). As one learned treatise notes:

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition." W. Keeton, Prosser & Keeton on Torts