Recovering the costs of public nuisance abatement: The public and private city sue the gun industry

Harvard Law Review

Volumn 113, Issue 6, 2000, Pages 1521-1538

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EID: 33750273699     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342358     Document Type: Article

References (116)

1. See Complaint, Morial v. Smith & Wesson Corp., No. 98-18578 Div. M (La. Civ. Dist. Ct. Orleans Parish filed Oct. 30, 1998).
2. See Firearms Litigation Clearinghouse, Firearms Litigation: Current Cases (visited Mar. 19, 2000) 〈http://www.firearmslitigation.org/cases.html〉
3. [hereinafter Firearms Litigation: Current Cases] (linking to summaries of recently filed cases) (on file with the Harvard Law School Library). Washington D.C. also filed suit. See Complaint, District of Columbia v. Beretta U.S.A. Corp., No. 00-0000428 (Super. Ct. D.C. filed Jan. 20, 2000).
4. See Complaint ¶ 1, at 2, City of Chicago v. Beretta U.S.A. Corp., No. 98 CH 015596 (Cir. Ct. Cook County filed Nov. 12, 1998); see also Brian J. Siebel, City Lawsuits Against the Gun Industry: A Roadmap for Reforming Gun Industry Misconduct (1999) (visited Mar. 19, 2000) 〈http://www.handguncontrol.org/legalaction/review.pdf〉 (describing the New Orleans and Chicago models and outlining various legal theories) (on file with the Harvard Law School Library).
5. In addition to Chicago, cities that alleged, inter alia, that gun industry defendants were liable for creating a public nuisance include Southern Californian cities (Los Angeles, Compton, and West Hollywood), Northern Californian cities (San Francisco, Sacramento, and Berkeley), Bridgeport, Boston, Detroit, St. Louis, Camden City, Newark, and Cincinnati. See Complaint, People v. Arcadia Machine & Tool, No. BC210894 (Super. Ct. L.A. filed May 25, 1999) (Los Angeles, Compton, West Hollywood); Complaint, People v. Arcadia Machine & Tool, Inc., No. 303753 (Super. Ct. S.F. filed May 25, 1999) (San Francisco, Sacramento, Berkeley); Complaint, Ganim v. Smith & Wesson, Inc., No. CV99-036-1279 (Conn. Super. Ct. Dist. of Fairfield filed Jan. 17, 1999) (Bridgeport); Complaint, City of Boston v. Smith & Wesson Corp., No. 99-2590C (Mass. Super. Ct. Suffolk County filed June 3, 1999); Complaint, Archer v. Arms Tech., Inc., No. 99912658-NZ (Mich. Cir. Ct. Wayne County filed Apr. 26, 1999) (Detroit); Complaint, City of St. Louis v. Cernicek, No. 992-01209 (Cir. Ct. St. Louis 22d Jud. Cir. filed Apr. 30, 1999); Complaint, City of Camden v. Beretta U.S.A. Corp., No. L-451099 (N.J. Super. Ct. Law Div. filed June 21, 1999); Complaint, Sharpe v. Arcadia Machine & Tool, No. ESX-L-6059-99 (N.J. Super. Ct. Essex County filed June 9, 1999) (Newark); Complaint, City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999). The complaints can be found at Firearms Litigation Clearinghouse, Firearms Litigation: The Document Index (visited Mar. 19, 2000) 〈http://www.firearmslitigation.org/decisions.html〉 (on file with the Harvard Law School Library)
6. and at Violence Policy Center, Litigation Against the Gun Industry (visited Mar. 19, 2000) 〈www.vpc.org/litigate.htm〉 (on file with the Harvard Law School Library).
7. First Amended Complaint ¶ 54, at 67, Chicago v. Beretta, No. 98 CH 015596 (Cir. Ct. Cook County filed Apr. 7, 1999).
8. See RESTATEMENT (SECOND) OF TORTS § 821B(1) (1979) (defining a public nuisance as an "unreasonable interference with a right common to the general public"). Whether the actions of the gun industry defendants constitute a public nuisance is crucial to the outcome of these suits; if successful, this novel use of public nuisance would expand the tools government has for crime control. However, this Note addresses a different question: when does a city have the power to sue on public nuisance grounds and recover damages or obtain injunctive relief? For an examination of how the cities' public nuisance actions against gun manufacturers relate to other uses of public nuisance actions to control crime, see Developments in the Law - The Shape of Lawsuits, 113 HARV. L. REV. (forthcoming May 2000).
9. See also Gallo v. Acuna, 929 P.2d 596, 603 (Cal. 1997) (discussing an injunction against an alleged street gang and asserting that "a principal office of the centuries-old doctrine of the 'public nuisance' has been the maintenance of public order - tranquility, security and protection - when the criminal law proves inadequate"). This Note also focuses on public nuisance claims rather than on the other causes of action that municipal lawsuits against gun industry defendants often encompass. For a description of the structure of the municipal lawsuits, including the use of negligence, fraud, product liability, and other legal theories, see Firearms Litigation: Current Cases, supra note 2,
10. and David Kairys, Legal Claims of Cities Against the Manufacturers of Handguns, 71 TEMP. L. REV. 1, 14-15 (1998).
11. See First Amended Complaint ¶ 1 (damages), at 76, Chicago v. Beretta (No. 98 CH 015596).
12. Complaint ¶ 67, Boston v. Smith & Wesson (No. 99-2590C). Other cities presented similar lists in their complaints. See, e.g., Complaint ¶ 5, at 3, Sharpe v. Arcadia Machine & Tool (No. ESX-L-6059-99) (listing Newark's "significant expenses for additional police protection, overtime, emergency services, coroner and morgue services, pension benefits, health care, social services and other necessary facilities and services"); see also Kairys, supra note 6, at 13 (describing the city's "potential damages" as "begin[ning] with a 911 call, cleaning blood from the street, and emergency medical care, and continu[ing] through support of an orphaned child").
13. See, e.g., First Amended Complaint ¶ 4 (damages), at 77-79, Chicago v. Beretta (No. 98 CH 015596).
14. Complaint ¶ 7 (damages), Boston v. Smith & Wesson (No. 99-25900; see also Complaint ¶ 1 (fourth count), at 40, Ganim v. Smith & Wesson, Inc., No. CV99-036-1279 (Conn. Super. Ct. Dist. of Fairfield filed Jan. 27, 1999) (requesting "[a]llocated monetary damages attributable to each defendant to compensate the City of Bridgeport for damages incurred in connection with each defendant's creation of the nuisances"); First Amended Complaint ¶ 1 (damages), at 76, Chicago v. Beretta (No. 98 CH 015596) (requesting "[a]llocated monetary damages attributable to each defendant to compensate the City of Chicago for the costs that it bears as a result of the public nuisance").
15. A Cook County judge dismissed Chicago's claim that gun industry defendants had been negligent, but left in place the public nuisance claim. See Judge Throws Out Part of Chicago's Gun Lawsuit, WALL ST. J., Feb. 14, 2000, at A13. A Georgia court denied a motion to dismiss Atlanta's claim for negligence, but did not reach the public nuisance theory because the defendants' motion to dismiss did not include this count See City of Atlanta v. Smith & Wesson Corp., No. 99VS0149217J (State Ct. Fulton County filed Oct. 27, 1999) (denying defendants' motion to dismiss).
16. See Ganim v. Smith & Wesson Corp., No. x06-cv-99-0153198S (Conn. Super. Ct. Dec. 10, 1999), available in 1999 WL 1241909; Penelas v. Arms Tech., Inc., No. 99-01941 CA-06 (Fla. Cir. Ct. Miami-Dade County filed Jan. 27, 1999) (deciding motions to dismiss); City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999) (order dismissing with prejudice), available in 1999 WL 809838.
17. By settling, gun industry defendants would follow Smith & Wesson, which, on March 18, 2000, accepted a range of restrictions on its practices in return for the dropping of 15 of the municipal lawsuits. See James Dao, Under Legal Siege, Gun Maker Agrees to Accept Curbs, N.Y. TIMES, Mar. 18, 2000, at A1.
18. The strength of these lawsuits is still an issue for the continuing lawsuits, including Chicago's, and for other gun manufacturers, see James Dao, Under Legal Siege, Gun Maker Agrees to Accept Curbs, N.Y. TIMES, 2000, at A1. id., as well as for future municipal public nuisance suits within and without the gun control context.
19. See Brief in Support of Motion to Dismiss Plaintiff's Amended Complaint at 8, Camden County Bd. of Chosen Freeholders v. Beretta, U.S.A. Corp., No. 99-2318 (JBS) (D.N.J. 1999) ("Local governments primarily exist to provide services, such as law enforcement and emergency services . . . ."); Motion to Dismiss Plaintiff's Complaint Pursuant to Rule 12(B)(6) of the Ohio Rules of Civil Procedure Brought by Certain Manufacturers at 9, Cincinnati v. Beretta (No. A9902369) ("The City of Cincinnati has an obligation to provide law enforcement and emergency services to its residents. Indeed, the provision of such services is one of the most important reasons for the creation and maintenance of municipal governments.").
20. See, e.g., Plaintiffs' Memorandum in Opposition to Motion to Dismiss by Certain Manufacturer Defendants at 44, City of St. Louis v. Cernicek, No. 4:99CV00933CEJ (E.D. Mo. 1999).
21. 719 F.2d 322 (9th Cir. 1983).
22. See Plaintiff's Memorandum in Opposition to Motion to Dismiss by Certain Manufacturer Defendants at 51, St. Louis v. Cernicek (No. 4:99CV00931CEJ) (quoting City of Flagstaff, 719 F.2d at 324); Brief in Support of Motion to Dismiss Plaintiff's Amended Complaint at 8, Camden County Bd. of Chosen Freeholders v. Beretta (No. 99-2518 (JBS)) (quoting City of Flagstaff, 719 F.2d at 323).
23. See City of Flagstaff, 719 F.2d at 323-24.
24. See id. at 323; see also Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 760 & n.11 (Alaska 1999) (describing the "free public services doctrine" as a "common-law doctrine [that] provides that the public must bear the costs of providing emergency public services, thus relieving individual tortfeasors of liability"); Koch v. Consol. Edison Co., 468 N.E.2d 1, 8 (N.Y. 1984) (pointing to the rule that "public expenditures made in the performance of governmental functions are not recoverable"). When municipalities have sued to recover service costs in the context of man-made single-event disasters such as oil spills, toxic chemical spills, fires, power outages, and air crashes, courts have almost uniformly rejected recovery. See David C. McIntyre, Note, Tortfeasor Liability for Disaster Response Costs: Accounting for the True Cost of Accidents, 55 FORDHAM L. REV. 1001, 1007 nn.40-44 (1987) (listing cases brought to recover accident costs).
25. City of Flagstaff, 719 F.2d at 324.
26. Id.
27. See id.
28. Id. (citing Town of East Troy v. Soo Line R.R., 653 F.2d 1123 (7th Cir. 1980); City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979); United States v. Chesapeake & Ohio Ry., 130 F.2d 308 (4th Cir. 1942); and United States v. Illinois Terminal R.R., 501 F. Supp. 18 (E.D. Mo. 1980)).
29. Id. Kennedy found that none of the categories applied in City of Flagstaff. See id.
30. See cases cited supra note 19.
31. See Defendants' Memorandum in Support of Motion to Dismiss Plaintiffs' Complaint at 11, City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999); Defendants' Memorandum in Support of Dismissal at 35, City of St. Louis v. Cernicek, No. 4:99CV00931CEJ (E.D. Mo. 1999).
32. See Plaintiffs' Memorandum in Opposition to Motion to Dismiss by Certain Manufacturer Defendants at 44-46, St. Louis v. Cernicek (No. 4:99CV00931CEJ).
33. See, e.g., Gibson v. Leonard, 32 N.E. 182, 183 (Ill. 1892) (premises liability), overruled in part by Dini v. Naiditch, 170 N.E.2d 881 (Ill. 1960); Township of Cherry Hill v. Conti Constr. Co., 527 A.2d 921, 922 (N.J. Super. Ct. App. Div. 1987) (assumption of risk). Despite these rationales, one court - like the gun industry defendants - has explicitly connected the "fireman's rule" to the idea that the city cannot recover for services it provides. See Township of Cherry Hill, 527 A.2d at 922 (describing the "fireman's rule" as a "familiar example of judicial recognition" of the policy that "[g]overnment has traditionally assumed the ultimate cost of providing basic emergency services that protect the community").
34. 2' See Koch v. Consol. Edison Co., 468 N.E.2d 1, 8 (N.Y. 1984) (describing the rule as grounded in "considerations of public policy").
35. See City of Flagstaff v. Atchison, Topeka & Santa Fe Ry., 719 F.2d 322, 323 (9th Cir. 1983) ("[T]he city spreads the expense of emergency services to its taxpayers, an allocation which is neither irrational nor unfair.").
36. See, e.g., Plaintiffs' Memorandum in Opposition to Motion to Dismiss by Certain Manufacturer Defendants at 51, St. Louis v. Cernicek (No. 4:99CV00931CEJ) ("Where defendants are never held accountable despite persistently engaging, day after day and year after year, in tortious conduct of which the harmful consequences are constant and well known, there is no fair or efficient spreading of costs."); McIntyre, supra note 19, at 1001, 1006, 1013 (arguing for broader recognition of a common law liability of tortfeasors).
37. Kennedy cited City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979), as an example of governmental recovery of nuisance abatement costs. In Kentucky Liquid Recycling, the Seventh Circuit found that Evansville had a cause of action under the federal common law of nuisance to recover "unusual treatment expense" when contaminated material was discharged into the water in another state. Id. at 1010. The Seventh Circuit's main concern was with protecting the interests of the state. See id. at 1018 ("The plaintiffs are municipal or public corporations, subdivisions of the state, that were required to spend public funds because of pollution of an interstate waterway by acts done in another state. The interests of the state . . . are implicated . . . ." (emphasis added)). As noted below, these interests do not necessarily coincide with the cities' interests in the gun industry suits.
38. To support the theory that governmental bodies can recover nuisance abatement costs, Kennedy cited Town of East Troy v. Soo Line Railroad, 653 F.2d 1123 (7th Cir. 1980). See City of Flagstaff, 719 F.2d at 324. In Soo Line, the Seventh Circuit held that East Troy could recover the costs of remedying ground water pollution caused by a spill of toxic materials. See Soo Line, 653 F.2d at 1132. The Seventh Circuit decided that the town could bring the public nuisance suit even though no land owned by it was damaged by the spill, basing its holding on a Wisconsin statute that provided that "[a]ny person, county, city, village or town may maintain an action to recover damages or to abate a public nuisance from which injuries peculiar to the complainant are suffered." Id. at 1127 (quoting WIS. STAT. § 823.01 (1997/1998) ("Jurisdiction Over Nuisances")).
39. See, e.g., 2A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 10.05, at 304 (3d ed. 1996 & Supp. 1999) ("A municipal corporation has a twofold character and dual powers . . . . The one is variously designated as public, governmental, political or legislative, in which the municipal corporation acts as an agency of the state. The other is variously designated as municipal, private, quasi-private, or proprietary.").
40. Lloyd v. Mayor of New York, 5 N.Y. 369 (1851), 1851 WL 5500 ("The former [power] is given and used for public purposes, the latter for private purposes. . . . The distinction between these two classes of powers is obvious, and has been frequently recognized and established in our courts."); see also 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 274-75 (3d ed. 1836)
41. ("[Municipal corporations] are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good, and such powers are subject to the control of the legislature of the state. They may also be empowered to take or hold private property for municipal uses, and such property is invested with the security of other private rights."), quoted in Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1104 (1980).
42. See 2A MCQUILLIN, supra note 34, § 10.05 & n.17, at 305, 309.
43. But see Louise A. Halper, Public Nuisance and State Environmental Enforcement, 16 Envtl. L. Rep. (Envtl. L. Inst.) 10,294 (Oct. 1986) (distinguishing between the "two tracks" of public nuisance law: "the sovereign's exercise of its powers to protect the public from interference with common rights" that includes only abatement or criminal prosecution and "individual actions to recover for particular damages consequent to a nuisance, private or public").
44. Owen J. Clements, Municipal Suits Against the Firearm Industry, MUN. LAW., Nov./Dec. 1999, at 20, 23
45. (authored by the Chief of Special Litigation at the San Francisco City Attorney's Office). The emphasis on general harm may not only be linked to the city's role as the protector of residents' health and safety, but may also be part of what is necessary to shape public attitudes toward the gun industry. See Constance A. Nathanson, Social Movements as Catalysts for Policy Change: The Case of Smoking and Guns, 24 J. HEALTH POL. POL'Y & L. 421, 454 (1999) (suggesting that "[c]alling attention to the health care costs of gun injuries" may be a "universalizing construction, intended to address the public as taxpayers").
46. See In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973) ("[T]he federal government and the states, as the twin sovereigns in our constitutional scheme, may in appropriate circumstances sue as parens patriae to vindicate interests of their citizens. . . . On the other hand, political subdivisions such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae . . . ."); see also Ganim v. Smith & Wesson, No. X06-CV-99-0153198S, at 4 (Conn. Super. Ct. Dec. 10, 1999), available in 1999 WL 1241909 (deciding defendants' motion to dismiss) ("[Plaintiffs] have no sovereign or parens patriae status to bring these claims on behalf of the citizens of Bridgeport."); Plaintiffs' Memorandum of Law in Opposition to Defendants Smith & Wesson and Sturm Ruger's Motion to Dismiss for Lack of Subject Matter Jurisdiction at 6 n.2, Ganim v. Smith & Wesson (No. x06-cv-99-0153198S) ("[Bridgeport] does not claim, nor does it need, parens patriae status.").
47. See Plaintiffs' Memorandum of Law in Opposition to Defendants Smith & Wesson and Sturm Ruger's Motion to Dismiss for Lack of Subject Matter Jurisdiction at 23, Ganim v. Smith & Wesson (No. x06-cv-99-0153198S) (describing the money cities had spent on services to address gun violence as "a subsidy bestowed in favor of the wrongdoers at the expense of [the city] and its taxpayers" in a situation in which "the defendants earn the profits of their activities and [the city] and its citizens bear the costs").
48. See McIntyre, supra note 19, at 1038; see also Erich Rolf Luschei, Note, Government Recovery of Emergency Service Expenditures: An Analysis of User Charges, 19 LOYOLA L.A. L. REV. 971, 972 (1986) (advocating "direct charges against those who negligently cause the need for emergency services" to deter such behavior).
49. See City of Greenville v. W.R. Grace & Co., 827 F.2d 975, 975 (4th Cir. 1987) (city hall).
50. See United States v. Chesapeake & Ohio Ry., 130 F.2d 308, 309 (4th Cir. 1942) (national forest).
51. Ganim v. Smith & Wesson, at 10 & n.4 (No. x06-cv-99-0153198S) (noting that Bridgeport's attorneys had mentioned these harms to city property in oral argument but not in their complaint); see also Penelas v. Arms Tech., Inc., No. 99-01941 CA-06, at 7 (Fla. Cir. Ct. Miami-Dade County filed Jan. 27, 1999) (deciding pending motions to dismiss) (differentiating between the public nuisance alleged by Miami-Dade County and cases "involving a direct connection to real property owned or operated by the government entity"); City of Bridgeton v. B.P. Oil, Inc., 369 A.2d 49, 55 (N.J. Super. Ct. Law Div. 1976) ("[I]f the city were the owner of adjacent land damaged by escaping oil, it like all landowners, may recover damages caused by this escape. It cannot, however, recover costs incurred in fire prevention or extinguishment[, which are] the very purpose[s] of government for which it was created.").
52. Plaintiff's Memorandum in Opposition to Defendant Manufacturers' Rule 12(B)(6) Motion to Dismiss at 51-52, City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999); see also, e.g., Plaintiffs' Memorandum of Law in Opposition to Defendants Smith & Wesson and Sturm Ruger's Motion to Dismiss for Lack of Subject Matter Jurisdiction at 23, Ganim v. Smith & Wesson (No. x06-cv-99-0153198S); Plaintiff's Memorandum in Opposition to Motion to Dismiss By Certain Manufacturer Defendants at 32, City of St. Louis v. Cernicek, No. 4:99CV00931CEJ (E.D. Mo. 1999). Cincinnati, Bridgeport, and St. Louis cited City of New York v. Lead Industry Ass'n, 222 A.D.2d 119 (N.Y. App. Div. 1996), in which the city recovered costs from lead paint manufacturers for long-term harms to city property, and City of Greenville v. W.R. Grace & Co., 827 F.2d 975 (4th Cir. 1987), in which the city recovered costs from asbestos manufacturers for harms to city hall.
53. In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973).
54. Id.
55. American Motorcyclist Ass'n v. Watt, 534 F. Supp. 923, 932 (C.D. Cal. 1981).
56. See Town of Orangetown v. Gorsuch, 544 F. Supp. 105, 108 (S.D.N.Y. 1982).
57. RESTATEMENT (SECOND) OF TORTS § 821C (1979).
58. No. 99 L 5628 (Cir. Ct. Cook County Nov. 30, 1999), cited in Ganim v. Smith & Wesson Corp., No. x06-cv-99-0153198S, at 28 n.9 (Conn. Super. Dec. 10, 1999), available in 1999 WL 1241909 (deciding defendants' motion to dismiss).
59. The Ceriale plaintiffs' claims were similar to those of the municipal plaintiffs. The individual plaintiffs asserted that the defendants "created and maintained a channel of firearm distribution through which thousands of guns have been funneled to children in the City of Chicago," that the practices of the gun industry defendants "interfered with the right of the members of the plaintiff class to use the public spaces of the City of Chicago without undue risk of injury," and that these practices amounted to a public nuisance that created a "climate of violence" in Chicago. First Amended Complaint ¶¶ 3, 46, 90-102, at 3, 14, 34-35, Ceriale v. Smith & Wesson (No. 99 L 5628). The suit survived dismissal. See Ceriale v. Smith & Wesson, No. 99 L 5628 (Cir. Ct. Cook County filed Nov. 30, 1999) (denying defendants' motion to dismiss).
60. See City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999), available in 1999 WL 809838 (order dismissing with prejudice) ("The claims of the City are premised on injuries which have occurred to its citizens, and as such are barred by the doctrine of remoteness.").
61. Memorandum in Opposition to Motions to Dismiss at 58, City of Chicago v. Beretta U.S.A. Corp., No. 98 CH 015596 (Cir. Ct. Cook County filed Nov. 12, 1998).
62. Id. at 33.
63. 503 U.S. 258 (1992). The lower court that dismissed Bridgeport's suit cited Holmes as an example of the "recogni[tion] at common law that a plaintiff who complains of harm resulting from misfortune visited upon a third person is generally held to stand at too remote a distance to recover." Ganim v. Smith & Wesson Corp., at 9-10 (No. x06-cv-99-0153198S) (citing Holmes, 503 U.S. at 268-69).
64. See Hoyt v. McLaughlin, 250 Ill. 442, 447 (1911), cited in Ceriale v. Smith & Wesson, at 3 (No. 99 L 5628).
65. See W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON TORTS § 86, at 616 (5th ed. 1984 & Supp. 1988) [hereinafter PROSSER AND KEETON ON TORTS] (calling nuisance an "impenetrable jungle").
66. See Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer, 54 ALB. L. REV. 359, 363-64, 390-91 (1990)
67. (differentiating between a "public nuisance tort" and a "public nuisance" and noting courts' frequent conflation of the two). A muddled California appeals court decision indicated, for example, that a "private person cannot recover damages for a public nuisance unless it also constitutes a private nuisance as to him" and that a "private nuisance action can be brought only by those who have property rights in respect to the use and enjoyment of land." Trinkle v. California State Lottery, 84 Cal. Rptr. id 496, 500 (1999).
68. See RESTATEMENT (SECOND) OF TORTS § 822 (1979) (defining a private nuisance as "invasion of another's interest in the private use and enjoyment of land" when the invasion is "intentional and unreasonable" or "unintentional and otherwise actionable").
69. See id.; see also Halper, supra note 36, at 10,299 (arguing that strict liability "applies categorically only to public nuisance actions brought by the sovereign pursuant to the police power").
70. A private suit for injunctive relief would complete the logic of these categories - public suits for damages and for injunctive relief, and private suits for damages (and for injunctive relief). However, as discussed below, to enjoin a public nuisance is a standard public power of the city. This fourth category would add complications without benefits.
71. For a description of the state's powers over cities, see Hunter v. City of Pittsburgh, 207 U.S. 161 (1907), which declared the still-current rule that municipal corporations are "political subdivisions of the state" whose powers and even existence depend on the "absolute discretion of the state," id. at 178.
72. 991 P.2d 757 (Alaska 1999).
73. See id. at 760-62. New Jersey has a similar statute authorizing public entities to assess costs of cleaning up oil spills to the actors who caused the spills. See Spill Compensation & Control Act, N.J. STAT. ANN. §§ 58:10-23.11 to 58:10-23.11x (West 1992 & Supp. 1999), cited in City of Bridgeton v. B.P. Oil, Inc. 369 A.2d 49, 54 (N.J. Super. Ct. Law Div. 1976), and in Township of Cherry Hill v. Conti Constr. Co., 527 A.2d 921, 922-23 (N.J. Super. Ct. App. Div. 1987).
74. See N.Y. ADMIN. CODE § 7-714(g) (entitling the City of New York to reimbursement of expenses for investigating and bringing a nuisance abatement action); see also City of N.Y. v. Basil Co., 589 N.Y.S.2d 319, 319-20 (1992) (stating that "[t]he power of a municipality to recoup costs incurred in the abatement of a nuisance has long been recognized" and characterizing § 7-714 as a codification of "[t]he power of the City, long recognized at common law, to recover costs and expenses in the abatement of a public nuisance").
75. See ALA. CODE § 11-47-117 (1991 & Supp. 1998) ("All cities and towns of this state shall have the power to prevent injury or annoyance from anything dangerous or offensive or unwholesome and to cause all nuisances to be abated and assess the cost of abating the same against the person creating or maintaining the same.").
76. CERCLA, §§ 101-405, 42 U.S.C. §§ 9601-9675 (1994).
77. See id. § 123, 42 U.S.C. § 9623; Kent E. Hanson & Adam Babich, Local Governments and the Environment: Part I, CERCLA, 17 COLO. LAW. 1997, 1997 (1988)
78. (describing how local governments can take advantage of CERCLA's authorization); see also Plaintiff's Memorandum in Opposition to Defendant Manufacturers' Rule 12(B)(6) Motion to Dismiss at 48-49, City of Cincinnati v. Beretta U.S.A. Corp. (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999) (No. A9902369) (citing two CERCLA cases - United States v. Occidental Chem. Corp., 965 F. Supp. 408, 412-13 (W.D.N.Y. 1997), and City of Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1152-54 (E.D. Penn. 1982) - in support of the proposition that courts have embraced the principle that public authorities should have the greatest authority to seek relief against actors who create public nuisances).
79. See Ganim v. Smith & Wesson Corp., No. x06-cv-99-0153198S, at 10 n.4 (Conn. Super. Ct. Dec. 10, 1999), available in 1999 WL 1241909; City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369, at 5 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999) (dismissing with prejudice), available in 1999 WL 809838; Penelas v. Arms Tech., Inc., No. 99-01941 CA-06, at 4 (Fla. Cir. Ct. Miami-Dade County filed Jan. 27, 1999) (deciding motions to dismiss).
80. Ganim v. Smith & Wesson, at 4 (No. x06-cv-99-0153198S).
81. City of Cincinnati v. Beretta U.S.A. Corp., No. A9902369, at 5 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999) (order dismissing with prejudice) (no supporting citations), available in 1999 WL 809838.
82. Penelas v. Arms Tech., at 4 (No. 99-01941 CA-06).
83. 719 F.2d 322 (9th Cir. 1983).
84. Id. at 324.
85. City officials have been reported as indicating that they "had filed the suits to have the issue decided by urban juries familiar with gun violence, rather than by legislators who are often influenced by the National Rifle Association." Fox Butterfield, Judge Dismisses Cincinnati's Suit on Firearms, N.Y. TIMES, Oct. 8, 1999, at A12.
86. State and city interests will not necessarily diverge, however. See Connecticut Attorney General's Office, Press Release, Sept. 7, 1999, Attorney General Provides Legal Support for Bridgeport Lawsuit Against Gun Manufacturers (visited Feb. 22, 2000) 〈http://www.cslnet.ctstateu.edu/attygenl/press/1999/other/bguns.htm〉 (announcing that the state filed an amicus brief in Bridgeport's gun industry lawsuit).
87. See First Amended Complaint ¶ 35, at 57, City of Chicago v. Beretta U.S.A. Corp., No. 98 CH 015596 (Cir. Ct. Cook County filed Apr. 7, 1999) (alleging that "the defendant gun manufacturers and distributors knowingly oversupply or saturate the market with their guns in the areas surrounding Chicago which have less restrictive gun control laws, knowing and foreseeing that many of these guns will be purchased by Chicagoans"). Chicago has strict rules concerning handgun possession. See, e.g., CHICAGO, ILL., MUNICIPAL CODE §§ 8-20-010, 8-20-015 (1998) (prohibiting the carrying of firearms on the person or the transportation of firearms in a vehicle); id. § 8-20-050 (prohibiting the registration and thus possession of, inter alia, handguns unless registered before March 30, 1982, or containing safety mechanisms). Nonetheless, a ring of suburban gun shops sold firearms that law enforcement officials traced to illegal use within the city limits. See First Amended Complaint ¶ 62(a), at 72, Chicago v. Beretta (No. 98 CH 015596).
88. Paul M. Barrett, The Big Bang: Evolution of a Cause: Why the Gun Debate Has Finally Taken Off, WALL ST. J., Oct. 21, 1999, at A1
89. (quoting attorney Elisa Barnes who represented plaintiffs in Hamilton v. Accu-Tek, 62 F. Supp. 2d 802 (E.D.N.Y. 1999)).
90. Connecticut's Home Rule Act, for example, provides that "[a]ny municipality shall have the power to . . . sue and be sued, and institute, prosecute, maintain and defend any action or proceeding in any court of competent jurisdiction." CONN. GEN. STAT. § 7-148(c)(1) (1999). The potential breadth of this grant is indicated by a Connecticut bankruptcy court's finding that the plain language of that same section was broad enough to allow Bridgeport to file for bankruptcy. See In re City of Bridgeport, 128 B.R. 688, 696-97 (Bankr. D. Conn. 1991).
91. See, e.g., ALA. CODE § 11-47-118 (1992 & Supp. 1998) ("Municipalities may maintain a civil action to enjoin and abate any public nuisance, injurious to the health, morals, comfort or welfare of the community or any portion thereof."); 3 ILL. COMP. STAT. 5/11-60-2 (West 1998) ("The corporate authorities of each municipality may define, prevent, and abate nuisances."). Although states often enact specific legislation granting municipalities the power to abate public nuisances, the power to regulate, prohibit, and abate nuisances may be based on a grant of general police power. See, e.g., Garcia v. Gray, 507 F.2d 539, 544 (10th Cir. 1974) ("The regulation and abatement of nuisances is one of the basic functions of the police power."), cited in 17 MCQUILLIN, supra note 34, § 24.63 & n.11, at 186, 188-89 (3d ed. 1993).
92. See Plaintiffs' Memorandum of Law in Opposition to Defendants Smith & Wesson and Sturm Ruger's Motion to Dismiss for Lack of Subject Matter Jurisdiction at 6, Ganim v. Smith & Wesson Corp., No. x06-cv-99-0153198S (Conn. Super. Ct. Sept. 8, 1999) ("Connecticut's Home Rule Act clearly provides Bridgeport with a right and an obligation to protect the health, safety and welfare of its citizens and explicitly provides municipalities with the right to institute civil lawsuits to fulfill that obligation.").
93. See Ganim v. Smith & Wesson., at 16 (No. x06-cv-99-0153198S).
94. See CONN. GEN. STAT. § 7-148(c)(1) (1999).
95. See id. § 7-148(c)(7)(E) (giving municipalities the police power to "[d]efine, prohibit and abate within the municipality all nuisances and causes thereof, and all things detrimental to the health, morals, safety, convenience and welfare of its inhabitants and cause the abatement of any nuisance at the expense of the owner or owners of the premises on which such nuisance exists").
96. Id. § 7-148(c)(7)(H)(xiii).
97. Ganim v. Smith & Wesson., at 16 (No. x06-cv-99-0153198S).
98. In its complaint, Bridgeport quoted Third Taxing District of Norwalk v. Lyons, 647 A.2d 32 (Conn. App. Ct. 1994), for the proposition that "[i]t is indisputable that one of the powers crucial to the operation of a municipal or quasi-municipal corporation is the power to sue or be sued on behalf of the corporation." Plaintiffs' Memorandum of Law in Opposition to Defendants Smith & Wesson and Sturm Ruger's Motion to Dismiss for Lack of Subject Matter Jurisdiction at 19, Ganim v. Smith & Wesson (No. x06-cv-99-0153198S) (quoting Third Taxing Dist., 647 A.2d at 36). However, the next sentence in Third Taxing District indicates that the court was concerned with the quasi-municipality's capacity to sue in its private, property-owning capacity rather than in its public one. "The lack of such power," the court explained, "would render the [quasi-municipal corporation] unable to authorize judicial proceedings to enforce contracts . . . , a result clearly incompatible with the express power . . . to lease, buy or sell property of the district." Third Taxing Dist., 647 A.2d at 36.
99. City of West Chicago v. County of DuPage, 385 N.E.2d 826, 827 (Ill. App. Ct. 1979).
100. See City of Atlanta v. Smith & Wesson Corp., No. 99vs0149217J (Ga. Cir. Ct. filed Feb. 4, 1999).
101. See Kathey Pruitt, Blocking of Gun Suit Now Law, ATLANTA J. & CONST., Feb. 10, 1999, at B1, available in 1999 WL 3749533. The act blocked Atlanta's suit because it applied to pending as well as future lawsuits. See H.R. 189, 145th Gen. Assem., Reg. Sess. (Ga. 1999) sec. 3.
102. See GA. CODE ANN. § 92A-4815 (Supp. 1999) ("The authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association, or dealer by or on behalf of any governmental unit created by or pursuant to an Act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, or injunctive relief resulting from or relating to the lawful design, manufacture, marketing, or sale of firearms or ammunition to the public shall be reserved exclusively to the state.").
103. See Lisa Gelhaus, Brooklyn Jury Adds Momentum to Antigun Litigation, TRIAL, Apr. 1999, at 96, 98 (1999) (noting that legislation similar to that in Georgia "has been introduced or is likely to be introduced in Alabama, Alaska, Arkansas, Colorado, Florida, Kansas, Louisiana, Michigan, Minnesota, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming").
104. H.R. 1561, 76th Leg. (Tex. 1999) (Limitation on Right to Bring Suit or Recover Damages, § 128.001(b)).
105. See sources cited supra notes 78-79.
106. See sources cited supra note 79. One court has even suggested that no statute is necessary. See City of Chicago v. Festival Theatre Corp., 438 N.E.2d 159, 162 (1982) ("[E]quitable jurisdiction to abate public nuisances is said to be of 'ancient origin,' and it exists even where not conferred by statute, where the offender is amenable to the criminal law, and where no property rights are involved. . . .").
107. See Memorandum in Support of Motion to Dismiss Plaintiff's Complaint at 6, Cincinnati v. Beretta, No. A9902369 (Ohio Ct. C.P. Hamilton County filed Apr. 28, 1999) (arguing that Cincinnati cannot "seek to abate, enjoin, regulate or punish" conduct outside its borders, but not contesting municipal power to abate conduct within the city).
108. See PROSSER AND KEETON ON TORTS, supra note 57, § 90, at 643.
109. See City of Rochester v. Premises Located at 10-12 S. Wash. St., 687 N.Y.S. 2d 523, 526 (1998) (granting the city a preliminary injunction against a night club for having caused a common law public nuisance when its customers fought and fired guns).
110. City of Chicago v. Cecola, 389 N.E.2d 526, 528 (Ill. 1979) (enjoining operation of the Harem Leisure Spa based on the Municipal Code of Chicago, which defines the operation of a house for the purpose of prostitution or of "lewdness" as a public nuisance).
111. See People ex rel. City of N.Y. v. Taliaferrow, 544 N.Y.S.2d 273 (N.Y. Super Ct. 1989), aff'd 158 A.D.2d 445 (N.Y. App. Div. 1990).
112. Complaint ¶ 145, at 33-34, People v. Arcadia Machine & Tool, No. BC210894 (Super. Ct. L.A. filed May 25, 1999) (brought by city attorneys for Los Angeles, Compton, and West Hollywood); Complaint ¶ 82, at 32, People v. Arcadia Machine & Tool, Inc., No. 303753 (Super. Ct. S.F. filed May 25, 1999) (brought by city attorneys for San Francisco, Berkeley, Sacramento, and San Mateo County). That the city incurred costs of service provision may still be relevant to a suit to enjoin a public nuisance. In City of Rochester v. Premises Located at 10-12 S. Wash. St., 687 N.Y.S. 2d 523 (1998), for instance, the court noted that a night club's operation caused costs of services to increase and described the "unacceptable drain on police resources and the unacceptable risk to the public's and police officers' health and safety" that fighting and gun play caused, City of Rochester, 687 N.Y.S. at 525. This suit, however, was for injunctive relief only, see id. at 524, and so did not raise the question whether cities can be compensated for service costs.
113. See Complaint ¶ 1 (prayer for relief), at 3, People v. Arcadia Machine & Tool (No. BC210894); Complaint ¶ 88, at 37, People v. Arcadia Machine & Tool (No. 303753).
114. See Complaint ¶ 5 (prayer for relief), at 42, People v. Arcadia Machine & Tool (No. BC210894) (claiming "restitution and/or disgorgement of wrongfully obtained monies pursuant to Business and Professions Code § 17203"). Californian cities' suits are atypical in that they do not claim money damages under the public nuisance theory, but typical in that they use available state statutes. The District of Columbia, for example, claimed damages under both public nuisance theory and a state-specific (or district-specific) statute. See Complaint ¶¶ 93, 94, at 27, District of Columbia v. Beretta U.S.A. Corp., No. 00-0000428 (Super. Ct. D.C. filed Jan. 20, 2000) (requesting "equitable relief, including but not limited to restitution, for abatement of the ongoing public nuisance they have created and maintained," as well as reimbursement for health care costs under the Health-Care Assistance Reimbursement Act of 1984, D.C. Code § 3-502(a)).
115. See, e.g., Plaintiffs' Memorandum of Law in Opposition to Defendants Smith & Wesson and Sturm Ruger's Motion to Dismiss for Lack of Subject Matter Jurisdiction at 18, Ganim v. Smith & Wesson Corp., No. x06-cv-99-0153198S (Conn. Super. Ct. Dec. 10, 1999) ("Even if a rule against recovering costs of emergency services existed, it would not affect Bridgeport's right to injunctive relief.").
116. See Manufacturer Defendants' Memorandum of Law in Support of Their § 2-615 Motion to Dismiss at 32, City of Chicago v. Beretta U.S.A. Corp., No. 98-CH15596 (Cir. Ct. Cook County filed Nov. 12, 1998) ("[T]o permit plaintiffs to recoup their public expenditures . . . would allow all those who have purportedly sustained economic losses as a result of firearms violence (e.g., an injured person's employer, a health maintenance organization, a school which installs metal detectors, a retail establishment that enhances its security) to bring suit.").