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District of Columbia v. Beretta4/21/2005
ntly entrusting a weapon to an individual buyer when it is foreseeable that the buyer might allow a third party to possess or use the gun illegally." Id. at 1137. Rather, the "plaintiffs argue that it is foreseeable to these defendants that the aggregate effect of numerous sales transactions occurring over time and in different multiple locations operated by businesses with no ties to each other will result in the creation of a public nuisance in another city." Id. The court responded that "it is not at all clear that [this] condition would cease to exist even if these particular defendants entirely ceased selling firearms":
The manufacture and sale of firearms is legal. There is a market for these products that is served by thousands of dealers all across the country. The sales that would otherwise have been made by these dealers would be made by others. Ultimately, there would be a shift in market share between these dealers and others and, perhaps, an increase in the price of illegal weapons "on the street" as those intent on illegal ownership had to go further afield in search of weapons to buy.
Id. As in the case of the manufacturers and distributors, the court found that "the consequences of imposing a duty upon the dealer defendants to prevent the creation of a public nuisance in the city of Chicago by those intent on illegally possessing and using guns in the city are . . . far-reaching." Id. at 1138. It concluded:
he alleged public nuisance is not so foreseeable to the dealer defendants that their conduct can be deemed a legal cause of a nuisance that is the result of the aggregate of the criminal acts of many individuals over whom they have no control. This is one of those "instances in which a party may have contributed in some remote way [to the harm] and yet it is inappropriate to subject that party to tort liability."
Id. (quoting Sturm, Ruger, 761 N.Y.S.2d at 202) (emphasis added; internal quotation marks omitted).
Applied to the manufacturer and distributor defendants before us, we agree with the Illinois court's analysis. The District contends that these defendants are aware of, and in some ways even complicit in, the practices of certain "notorious" gun dealers in the counties surrounding the District of Columbia who sell firearms indiscriminately (particularly through straw sales) to persons they know or should know intend to use or possess them in the District of Columbia. But even assuming that the defendants can be said to exercise some control over the business practices of those independent dealers, the District has not alleged - any more than did the plaintiffs in City of Chicago - reason to believe that the exercise of that control would abate the nuisance of guns unlawfully in the hands of persons in the District to any perceptible degree. Deplorable though these facts may be, the ready availability of firearms in the nation at large, and the sheer number and variety of opportunities by which persons intent on acquiring them unlawfully can do so, counsel strong restraint on the part of a court asked to hold defendants - individual or corporate - answerable for a common-law nuisance that "result[s from] the aggregate of the criminal acts of many individuals over whom they have no control." City of Chicago, 821 N.E.2d at 1138. In keeping with our own decisions and others we have found persuasive, we decline to relax the common-law limitations of duty, foreseeability, and direct causation so as to recognize the broad claim of public nuisance the District has alleged.
In this regard, moreover, what we stated at the end of our discussion of negligence, part III, supra, remains pertinent: The legislature, by enacting D.C
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