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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
relevance of defendant's compliance with federal regulations was dicta and of little persuasive value to this court.
As to the argument that comprehensive regulation of the firearms industry cautions against judicial involvement, the appellate court commented that defendant's alleged fostering of an underground handgun market is "not lawful action." 337 Ill. App. 3d at 13. The appellate court acknowledged that "comprehensive legislation of a certain activity causes courts to exercise judicial restraint in declaring an activity to be a public nuisance if it complies with the regulations." 337 Ill. App. 3d at 13. However, the court found such restraint unjustified in the present case because " ` "there is generally no regulation of the quantity, frequency, or purpose of firearm purchases or sales[,] nor is there any national registration of purchasers of firearms. Multiple sales and even straw purchases are generally not unlawful and are not significantly regulated." ' " 337 Ill. App. 3d at 13, quoting Young, 327 Ill. App. 3d at 967, quoting D. Kairys, The Governmental Handgun Cases and the Elements and Underlying Policies of Public Nuisance Law, 32 Conn. L. Rev. at 1183. Again, this conclusion is taken from a law review article written by one of plaintiffs' attorneys and, as such, is entitled to little, if any, consideration by this court. In addition, we find the appellate court's conclusion regarding the regulation of firearms purchases to be inaccurate. State and federal regulation of handgun sales is extensive. See 18 U.S.C. §921 et seq. (2000) (Gun Control Act); 430 ILCS 65/0.01 et seq. (West 2002) (Firearm Owners Identification Card Act). Indeed, the second amended complaint acknowledges that the "State of Illinois is a high regulation state."
Plaintiffs respond that the federal Gun Control Act expressly provides that it does not preempt state or local laws. 18 U.S.C. §927 (2000). They also call our attention to Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984), in which this court rejected the argument that state laws regulating firearms are so comprehensive that they evince a legislative intent to preclude municipalities from imposing other restrictions of firearms.
The Gun Control Act and Kalodimos, however, refer to state and local laws and municipal ordinances and, as such, anticipate legislative action, not judicial intervention. They offer support for defendants' observation that a court should be reluctant to use its equitable powers to impose an injunctive remedy on an activity that is already highly regulated by statute. As the drafters of the Restatement commented:
" f there has been established a comprehensive set of legislative acts or administrative regulations governing the details of a particular kind of conduct, the courts are slow to declare an activity to be a public nuisance if it complies with the regulations. * The variety and complexity of a problem and of the interests involved and the feeling that the particular decision should be a part of an overall plan prepared with a knowledge of matters not presented to the court and of interests not represented before it, may also promote judicial restraint and a readiness to leave the question to an administrative agency if there is one capable of handling it appropriately." Restatement (Second) of Torts §821B, Comment f, at 91-92 (1979).
Plaintiffs apparently would prefer other forms of regulation, as demonstrated by the nature of the injunctive relief they seek. Litigation should not be used to achieve legislative goals. Nonetheless, we turn to the merits of defendants' argument that public nuisance liability may not be imposed because their compliance with existing stat
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