Appeal from the Circuit Court of Cook County No. 98 CH 015596 The Honorable Stephen A. Schiller, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
The City of Chicago (City) and the County of Cook (County) (collectively, plaintiffs) filed suit against 18 firearm manufacturers, 4 firearm distributors and 11 firearm dealers (collectively, defendants). Plaintiffs' original complaint asserted one count for public nuisance and one count for negligent entrustment. The negligent entrustment count was dismissed. Plaintiffs' second amended complaint, inter alia, alleges that the defendants' marketing practices unreasonably facilitate the unlawful possession and use of firearms in Chicago, and that the defendants are liable for participating in the creation and maintenance of a public nuisance. Following oral argument, the trial court's September 15, 2000, order granted defendants' motions to dismiss "pursuant to 735 ILCS 5/2-615 and/or 2-619." Plaintiffs' second amended complaint was dismissed with prejudice. The issue presented on review is whether the complaint properly pled a cause of action for public nuisance under Illinois law.
Plaintiffs filed suit against the defendants in November 1998. Plaintiffs filed a first amended complaint in April 1999. Defendants moved to dismiss plaintiffs' first amended complaint. On February 10, 2000, the trial court dismissed count II (negligent entrustment) and reserved ruling on count I (public nuisance). Following the dismissal of count I, plaintiffs moved for leave to file a second amended complaint to add data from the Bureau of Alcohol, Tobacco and Firearms (ATF).
Specifically, plaintiffs' second amended complaint alleges:
"35. Defendant dealers sell firearms to Chicago residents even when the purchasers' words and/or behavior indicate that they intend to possess or use the firearms illegally.
36. Defendant dealers sell handguns that are designed and marketed to be carried as concealed weapons even though Illinois law prohibits carrying concealed weapons, and do not inquire of buyers whether they are authorized to carry concealed weapons nor warn them of the legal restrictions on carrying concealed weapons.
38. Despite their knowledge that Chicago residents purchase guns outside the City of Chicago and then bring them back into the City, and their knowledge both of the harm done in Chicago and of Chicago's strict gun control ordinances, defendant firearms dealers make no meaningful effort to prevent or limit the traffic of firearms into Chicago, but instead choose to profit from such traffic. They do not refuse to sell to Chicago residents and do not require proof that Chicago residents intend to maintain the firearms outside Chicago. They do not notify the Chicago Police Department of sales to residents of Chicago.
39. *** Defendant gun dealers consciously fail to take any action to prevent violations of law when Chicago residents and others make multiple purchases of guns, or otherwise purchase guns in a manner that would make it plainly foreseeable that the purchaser is not buying those weapons for himself, but instead for purposes of illegal resale.
50. The defendant gun 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.
59. Defendant manufacturers and distributors knowingly oversupply or 'saturate the market' with their products in areas where gun control law are less restrictive, knowing that persons will illegally bring them into the jurisdictions where they are illegal and then possess or illegally resell them.
64. The defendant gun manufacturers and distributors distribute quantities of their firearms through low-end retailers such as pawn shops and gun stores that are known to be frequented by criminals and gang members.
68. The defendant firearms manufacturers and distributors 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.
78. Defendant manufacturers design and advertise their guns to appeal to the significant market for illegal firearms, including to those who wish to use them for criminal purposes.
85. Defendants intentionally and recklessly design, market, distribute and sell firearms to persons whom defendants should know will bring those firearms into Chicago, causing thousands of firearms to be possessed and used in Chicago illegally, which results in a higher level of crime, death and injuries to Chicago citizens, a higher level of fear, discomfort and inconvenience to the residents of Chicago, and increased costs to the plaintiffs to investigate and prosecute crimes caused by the illegal possession and sue of the firearms brought into Chicago. Their conduct thereby causes a significant and unreasonable interference with the public health, safety, welfare, peace, comfort and convenience, and ability to be free from disturbance and reasonable apprehension of danger to person and property.
93. The defendants' conduct is the direct and proximate cause of deaths and injuries to Chicago residents and a significant and unreasonable interference with public safety and health and the public's right to be free from disturbance and reasonable apprehension of danger to a person and property."
The City requests allocated monetary damages attributable to each defendant to compensate the City for the costs it bears as a result of the public nuisance, including costs of emergency medical response, police department programs, and the prosecution of gun control ordinance violations. The County seeks compensation for the costs that it bears as a result of the defendants' conduct, including costs for treatment of victims of firearm violence and the costs to prosecute and defend the criminal misuse of a firearm. The City and County also seek punitive damages to "punish and deter conduct that intentionally and recklessly endangers the people of Chicago" and permanent injunctive relief to abate the public nuisance caused by the defendants.
Defendants moved to dismiss the plaintiffs' second amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)). The Sports Authority, Inc. (Sports Authority), a gun dealer, filed a separate motion to dismiss pursuant to section 2-619 (735 ILCS 5/2-619 (West 2000)). In its oral ruling on September 15, 2000, granting defendants' motions to dismiss plaintiffs' second amended complaint, the trial court stated:
"With regard to the public nuisance count, to a large extent the plaintiffs rely on statistical data which really, even in statistical terms, defines only a portion of the universe of experience and participants in the experience with regard to hand guns and hand gun violence.
At best, in terms of immediacy and proximity, both in terms of injury and causation, contrary to the situation that was presented in cases like Wilsonville, which both parties made allusion to and relied upon in argument, they suggest facts in my opinion that a legislative body could take notice of and consider and which a court, given Illinois's aversion to statistical bases for cause of actions, for example, in the market share area that relates to product liability, not directly germane but in some way instructive, in the Supreme Court's holding in the Lilly case, which I still believe is good law. This is not the basis that an Illinois court can *** use as essentially almost the sole basis for deciding whether individual parties *** are responsible for a public nuisance.
I think the situation is somewhat distinct between the manufacturers and distributors and the individual dealers. With regard to the dealers in particular, I would be remiss in stating that the allegations in the complaint with regard to the majority of the dealers assert serious allegations of fact which suggest evasion and violation of applicable law.
But consistent with the holding by the Illinois Supreme Court in Festival Theater [sic] and in numbers of cases, no showing has been made nor has an assertion even been made that applicable enforcement of criminal sanctions [has] been attempted and, if attempted, [has] been shown to be inadequate. Accordingly, it's my decision that the complaint in toto ...