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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
lity of Conduct), §§829 through 831 (gravity versus utility) (1979).
Because these factors are intended to apply to intentional conduct affecting the use and enjoyment of land, they are not directly applicable to the novel claim made by plaintiffs. Thus, if we were to engage in the balancing of harm versus utility that the plaintiffs urge, we would be "acting without an established and recognized standard" (Restatement (Second) of Torts §821B, Comment e, at 90 (1979)). In addition, although courts frequently weigh such factors in other contexts, an analysis of the harm caused by firearms versus their utility is better suited to legislative fact-finding and policymaking than to judicial assessment.
Further, despite the existence of numerous statutes declaring various practices and conditions to constitute public nuisances, we have no indication from the legislature that it would be inclined to impose public nuisance liability for the sale of a product that may be possessed legally by some persons, in some parts of the state. It seems that plaintiffs seek injunctive relief from this court because relief has not been forthcoming from the General Assembly. We are reluctant to interfere in the lawmaking process in the manner suggested by plaintiffs, especially when the product at issue is already so heavily regulated by both the state and federal governments.
We, therefore, conclude that there are strong public policy reasons to defer to the legislature in the matter of regulating the manufacture, distribution, and sale of firearms.
2. Compliance with Applicable Law
Defendants argue further that their business practices cannot be deemed unreasonable if they are in compliance with applicable state and federal regulations. In a related argument, defendants suggest that because the firearms industry is highly regulated at both the state and federal levels, judicial restraint in further regulating their activities is advisable.
As to the argument that compliance with applicable laws precludes a claim of common law public nuisance because it is, by definition, reasonable, the appellate court concluded that "compliance with the law is not dispositive of whether a public nuisance exists, but merely serves as a `guideline' in determining whether an unreasonable interference has occurred." 337 Ill. App. 3d at 13. The authority cited for this statement, however, was not persuasive. The appellate court cited its own recent decision in Young v. Bryco Arms, 327 Ill. App. 3d 948 (2001), a case virtually identical to the present case except that it was brought by private individuals, and a law review article by one of plaintiffs' own attorneys (D. Kairys, The Governmental Handgun Cases and the Elements and Underlying Policies of Public Nuisance Law, 32 Conn. L. Rev. 1175, 1182 (2000)). The only other authority cited by the appellate court for this proposition is Commonwealth Edison, 24 Ill. App. 3d at 632-33, in which the court concluded that although the defendant demonstrated that it was in compliance with applicable standards, the court was "not bound by federal air-pollution standards in deciding whether the facility's emissions constitute a common law nuisance." Rather, the court stated, "those standards offer us guidelines in the determination of the reasonableness of the operation and the extent of any harm to the public." In Commonwealth Edison, however, the appellate court affirmed the trial court's dismissal of the city's public nuisance claim against an alleged polluter on other grounds, specifically, lack of proof of both substantial injury and causation. Commonwealth Edison, 24 Ill. App. 3d at 633. Thus, the commentary in Commonwealth Edison on the
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