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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
y to the public's health, welfare and safety, and to be free from conduct that creates a disturbance and reasonable apprehension of danger to person and property." (Emphasis added.) Because none of the defendants are alleged to have engaged in any conduct in the city of Chicago, we understand the asserted public right to be the right to be free from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats of danger to person and property, caused by the presence of illegal weapons in the city of Chicago, allegedly made possible by defendants' action or inaction elsewhere.
Defendant manufacturers and distributors do not argue that plaintiffs have failed to identify a public right affected by the alleged nuisance. Several dealer defendants, however, argue that plaintiffs have failed to assert a recognized public right.
We note that although other courts have dismissed public nuisance suits against similar groups of defendants (see Spitzer v. Sturm, Ruger & Co., 309 A.D.2d 91, 761 N.Y.S.2d 192 (2003); Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001) (applying New Jersey law); City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002) (applying Pennsylvania law)), no such case has been dismissed for failure to properly plead the existence of a public right affected by the alleged nuisance.
Nevertheless, we question whether there is a public right, as opposed to an individual right, to be free from the threat of illegal conduct by others. The case law is not helpful. Cases involving the right of public safety have involved nuisances created by vicious dogs, the storage of explosives, blasting, the storage or use of fireworks, or the presence of unsafe buildings. See, e.g., Turpen v. City of St. Francisville, 145 Ill. App. 3d 891 (1986) (dilapidated building); Village of Northbrook v. Cannon, 61 Ill. App. 3d 315 (1978) (allowing dogs to run free). The right of public peace has been disrupted by disorderly houses, unruly taverns, and dance halls. See, e.g., City of Chicago v. Cecola, 75 Ill. 2d 423 (1979) (house of prostitution); City of Chicago v. Clark, 359 Ill. 374 (1935) (disorderly house); People v. Sequoia Books, Inc., 149 Ill. App. 3d 383 (1986) (lewd behavior in adult bookstore); Toushin v. City of Chicago, 23 Ill. App. 3d 797 (1974) (massage parlor). Public comfort has been affected by odors, fumes, dust, and other sources of pollution. See, e.g., Gardner v. International Shoe Co., 319 Ill. App. 416 (1944) (odors, noises, smoke); City of Chicago v. Latronica Asphalt & Grading, Inc., 346 Ill. App. 3d 264 (2004) (illegal dumping of waste); County of Cook v. Chicago Magnet Wire Corp., 152 Ill. App. 3d 726 (1987) (odor). Such nuisances have affected the public generally.
We have found no Illinois case recognizing a public right to be free from the threat that members of the public may commit crimes against individuals. Plaintiffs cite Cecola in support of their assertion that "a violation of laws that protect public health, welfare, or safety infringes a public right and hence may be remedied through a nuisance action." Cecola, however, involved an action to abate the nuisance created by the operation of a house of prostitution. The conduct itself was illegal; a statute specifically permitted houses of prostitution to be enjoined as public nuisances; and the operation of a house of prostitution was considered a nuisance at common law. Cecola, 75 Ill. 2d at 427. Cecola does not offer support for recognition of a public right characterized in plaintiffs' reply brief as "the public's right to enjoy the benefits of the laws governing the unlawful possession and use of firearms."
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