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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
d federal government are better suited than this court to address the societal costs that flow from the illegal use of handguns, particularly given that the commercial activity at issue is already highly regulated. Further, defendants argue that plaintiffs' "frustration" at their inability to effectively regulate gun possession in the city cannot be "alleviated through litigation as the judiciary is not empowered to `enact' regulatory measures in the guise of injunctive relief. The power to legislate belongs not to the judicial branch of government, but to the legislative branch." Penelas, 778 So. 2d at 1045.
Our own research reveals that the Criminal Code contains a nuisance provision listing 17 categories of conduct or uses of land that are public nuisances. 720 ILCS 5/47-5 (West 2002). In addition, the General Assembly has enacted numerous other statutes defining certain conduct as constituting a public nuisance. See, e.g., 510 ILCS 5/15(c) (West 2002) (permitting a dangerous dog or other animal from leaving the premises of the owner without a leash or other method of control); 515 ILCS 5/1-215 (West 2002) (use of illegal fishing device); 605 ILCS 5/9-108 (West 2002) (planting of willow trees or hedges on the margin of a highway); 620 ILCS 25/11 (West 2002) (creation of a hazard that obstructs the airspace required for the take-off or landing of aircraft); 625 ILCS 45/4-8 (West 2002) (use of watercraft equipped with siren or flashing lights); 720 ILCS 5/28-2 (West 2002) (keeping a gambling place); 720 ILCS 5/37-1 (West 2002) (knowingly maintaining a building used in the commission of certain enumerated criminal offenses).
As these examples well illustrate, the legislature has the power to declare something to be a nuisance that was not such at common law. People v. Jones, 329 Ill. App. 503 (1946); Village of Gurnee v. Depke, 114 Ill. App. 2d 162 (1969). However, the codification of certain common law nuisances in the Criminal Code and the legislative declaration that certain other conditions constitute nuisances does not exclude common law nuisances not codified therein from being classed as public nuisances. People ex rel. Dyer v. Clark, 268 Ill. 156 (1915). See also Gilmore, 261 Ill. App. 3d at 661 (public nuisance statute does not displace common law actions; common law right to action to abate public nuisance exists independently of any statutory right). As this court observed in Festival Theatre:
" 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. [Citations.] Too, in a common law action, the extent of the concept of public nuisance is not limited to those activities the legislature has declared public nuisances." Festival Theatre, 91 Ill. 2d at 303.
On the other hand:
"If a defendant's conduct in interfering with a public right does not come within one of the traditional categories of the common law crime of public nuisance or is not prohibited by a legislative act, the court is acting without an established and recognized standard." Restatement (Second) of Torts §821B, Comment e, at 90 (1979).
In such cases, the Restatement warns, the analysis set forth in sections 826 to 831 becomes more significant. Restatement (Second) of Torts §821B, Comment e, at 90 (1979). These sections define factors that should be considered by a court when determining whether an intentional invasion of another's interest in the use and enjoyment of land is unreasonable. Restatement (Second) of Torts §826 (unreasonableness of intentional invasion), §827 (gravity of harm), §828 (Uti
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