|Search & Seizure
Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
People v. Dieppa, 357 Ill.
App. 3d 847
ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
writ of certiorari to the Supreme Court of Illinois. 03-923
DEVENPECK et al. v. ALFORD No.
People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005)
and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
The City of Chicago et al., vs. Beretta U.S.A Corporation, et al.,
Nos. 95243, 95253, 95256 and 95280, cons. Illinois Supreme Court.
(Notice:The decision was reported in a slip opinion, not
released for publication in the permanent law reports, and until released, it
is subject to revision or withdrawal ).
A long-awaited decision by the Illinois Supreme Court has
dealt Chicago’s Mayor Daley a resounding defeat in his bid to hold
manufacturers, distributors and dealers of certain firearms, primarily
handguns, liable for crimes committed with their use. A holding against the
defendants would have opened up a Pandora's box of public nuisance claims that
could have then applied to just about any manufacturer, distributor and/or
dealer of any product ultimately used as a weapon in a crime. This possible
overbroad repercussion was pointed out in the unanimous decision written by
Justice Rita B. Garman. The Court clearly took a position of
judicial restraint, noting that this was a matter better left to the
legislature. The Court reversed the Appellate Court and affirmed the decision
to dismiss the suit initially ruled by Cook County Chancery Judge Stephen
A total of 18 manufacturers, 4 distributors and 11 gun dealers were initially
sued by the City of Chicago and County of Cook in November, 1998. In its prayer
for relief the plaintiff City sought compensation for the cost of emergency
services, law enforcement efforts, the prosecution of violators of gun control
ordinances and other related expenses. The County of Cook sought compensation
for the costs of treatment of victims of gun violence, prosecution for criminal
use of firearms, including the expenses associated with defense counsel [public
defenders] to those accused of gun crimes. Both Plaintiffs sought punitive
damages and permanent injunctive relief to abate the alleged “public nuisance.”
The case reached the State Supreme Court on appeal after the trial courts’
dismissal of the action on September 15, 2000, pursuant to the defendants’
motion, was reversed by the Illinois Appellate Court for the 1st District.
The case was unique in that none of the manufacturers’ principal places of
business were located within Illinois, and only one distributor was located
within its borders. While all of the gun dealers were located in Illinois, none
had a business within Chicago’s city limits.
From the onset of the litigation, pro-firearm advocates, including many
well-known attorneys, law professors and firearm experts, predicted the
outcome, commenting on the obvious failure on the part of the plaintiffs to
show a nexus between either the manufacture, distribution and/or sale and the
ultimate criminal use of a firearm. Although it would appear that elementary
horn-book law precluded any finding of proximate cause between the collective
defendants’ actions and/or inactions and the resulting alleged damages, this
case traveled the appellate route to the State’s highest court--demonstrating
and personifying the zeal and tenacity of some of the anti-gun community’s misguided
efforts to curb crime by aiming at manufacturers, distributors, and dealers of
firearms -- a proven fruitless, but alarming threat to freedom-loving American
Five of the Justices joined in a specially concurring opinion written by
Justice Charles E. Freeman, who relied on his reasons given in
his specially concurring opinion in a similar companion case involving multiple
individual plaintiffs, Stephen Young et al., v. Bryco Arms, et al.,
93678, 93685 and 93728, cons., also decided on 11/18/04.
In Young, Justice Freeman, specially concurring, joined by Chief Justice
McMorrow, and Justices Fitzgerald, Kilbride and Rarick, as in this case, found
”[t]he majority’s recitation of the facts and its discussion of the current
state of the law with respect to the issues raised are both comprehensive and
accurate. The conclusion reached is legally correct.” However, Justice Freeman
was compelled to call attention to “ . . . some of the more disturbing
allegations in Plaintiff’s complaint . . .not highlighted in the majority
opinion because they do not impact the majority’s legal analysis.”
It appears that the concurring opinion’s need to point out “disturbing
statistical data”-- regarding the gun manufactures’ alleged awareness of the
probability that their wares might be used in the commission of crimes -- found
its origin in the plaintiffs’ overkill of pleadings, saturated with evidentiary
facts and conclusions, in defiance of the “ultimate facts” pleading standard in
Illinois. At the onset of the Beretta case, the Plaintiffs
clearly spouted their anti-gun political agenda by overloading the pleadings
with statistical data, much of which survived to their second amended
Justice Garman stated early in the opinion that the Court had
reservations about the plaintiffs’ second amended complaint, noting in
“Although we have reservations regarding the adequacy of the second amended
complaint under our fact-pleading standard, we decline to dispose of this case
on a procedural issue. The questions of law raised on this appeal are of great
importance, have been fully briefed and argued, and provide a substantive basis
for resolving this issue.”
Turning to the substantive issues, the Court considered the required elements
of the “public nuisance” cause of action--public right, unreasonable
interference, proximate cause, and the remedies sought, in light of the
defendants’ principal contentions--as the Court stated--that “they may not be
held liable in public nuisance when they have no control over the
instrumentality at the time the alleged harm results from the criminal acts of
third parties, as well as the argument that their conduct is too remote from
the alleged injury for liability to attach.” In conclusion, the majority
“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 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 v. Stanmar, Inc., 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. By implication, proximate cause is also
lacking as to the manufacturer and distributor defendants, who are even further
removed from the intervening criminal acts. Finally, we hold that plaintiffs’
action for damages is barred by the Moorman doctrine and the
municipal cost recovery rule. [Moorman Mfg Co., v. National Tank Co., 91 Ill.
2d. 69 (1982)].
“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
Appellate court judgment reversed; circuit court judgment affirmed.”
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