Illinois Resists Judicial Activism on Gun Control
December, 2004
In City of Chicago v. Beretta USA, 2004 Ill. LEXIS 1665, the plaintiff City asserted a claim of public nuisance seeking to hold manufacturers, distributors and dealers of handguns responsible for the costs of emergency medical services, law enforcement, prosecution of violators of gun control ordinances and related expenses. The Illinois Supreme Court summarized the basis for ordering dismissal of the claim as follows:
“Litigation should not be used to achieve legislative goals.”
This decision will have impact far beyond Illinois’ borders. The Court analyzed all elements of the public nuisance claim and found that claim lacking in several respects. Foremost, manufacturers and distributors owe no duty because they lawfully sell a nondefective product. Any other result would be an unprecedented expansion of the law impacting countless other lawful commercial enterprises to address societal problems. The Court gave the following illustration: manufacturers of cellphones might be legally responsible for dangers posed by distracted drivers. Moreover, in the view of the Court, there cannot be an unreasonable interference with public rights where, as in this case, the activity is controlled by a comprehensive set of administrative or legislative regulations. In sum, compliant conduct is reasonable conduct.
Gun dealers have no responsibility because there is no proximate causation. There are two predicates to proximate causation: the conduct must be the cause in fact and the legal cause -- and this latter requirement is not met unless the defendant’s conduct is closely tied to the plaintiff’s injury. The injury must be such that a reasonable person would see that injury as a likely result of their conduct. It is important to note that in this case plaintiff alleged numerous sales transactions occurring over time and in multiple locations by businesses with no ties to each other. This thus was not a case of an alleged single sale. Under those circumstances reasonable retailers would not foresee the creation of a nuisance as a result of their conduct.
The claim also failed on the issue of recoverable damages. The damages sought are economic damages because they were incurred in the absence of harm to the plaintiff’s person or property and the economic loss doctrine precludes recovery for commercial expectations -- even where there is no contractual relationship between plaintiff and defendant. The rule is based on the speculative nature and potential magnitude of damages. The Court supported its analysis with its invocation of the “municipal cost recovery rule,” which is based upon a separation of powers rationale. Public expenditures made in the performance of governmental functions are not recoverable in tort. The legislature is the custodian of governmental fiscal matters.
On the same date it issued Beretta, the Illinois Supreme Court ordered the dismissal of a like claim brought by the special administrators for surviving family members of those killed by illegal firearms. In Young v. Bryco Arms, 200 Ill. LEXIS 1664, the claimed harm was held to be the aggregate result of numerous incidents by third parties not under defendants’ control.
A Personal Comment
In a plea consistent with the Court’s recognition of its limited role, Justice Freeman and other members of the Court urged the legislature to address concerns such as those presented by the plaintiff’s allegation that some gun dealers were willing to serve customers who likely intended to circumvent the law.
The Illinois Supreme Court’s turn to the right in Beretta may be a precursor of things to come. The Illinois Fifth Appellate District encompasses Madison and St. Clair Counties, noted hotbeds of judicial activism well known for their favorable treatment of plaintiffs in class actions. The Supreme Court judge from that district has, to my memory, never been conservative. A recent turnabout has occurred. In a hotly contested election which has, on both sides, been one of the most expensive judicial campaigns in history, the Republican jurist, Lloyd A. Karmeier, defeated the Democratic candidate, former Justice Maag. We look forward to Justice Karmeier’s work on the Court.
A Further Personal Note
I am pleased to advise that the new co-chairs of the Clausen Miller Appellate Practice Group, CM partners Ed Kay and Melinda Kollross, will author future editions of this column. This is consistent with my election, in January 2004, to assume an “of counsel” role with the firm that enables me to devote my full energies to litigating high profile cases.
I continue to be available to meet your needs and will submit a column for this publication on such occasions as I find a subject of particular interest. ?
James T. Ferrini
jferrini@clausen.com
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