In a major victory for advocates of gun control, a state appellate court in Illinois has ruled that gun makers and dealers can be sued for distributing firearms in a way that makes it easy for criminals and juveniles to obtain them, a practice that creates what the court said could amount to a public nuisance.
The decision is the first by an appellate court to uphold a new legal approach being taken by many cities, lawyers and victims of gun violence. The approach holds that gun makers knowingly create a public nuisance by the way they distribute their products.
Gun control groups hope the Illinois decision could lead to successful lawsuits against an industry that has been largely immune to them.
“In a very real sense, this is the gun industry’s worst nightmare,” said Dennis Hennigan, legal director of the Brady Center to Prevent Gun Violence, in Washington. “It establishes the doctrinal framework for the eventual liability of the gun industry.”
Mr. Hennigan helps to represent 26 of the 32 cities and counties that are now suing gun makers and dealers, but he was not involved in this suit.
Lawyers for the gun makers named in the lawsuit, including the Smith & Wesson Corporation, as well as a spokesman for the National Rifle Association, did not return phone calls seeking comment.
But gun rights groups have argued against the public-nuisance theory on the ground that gun manufacturers could not be held responsible for crimes that resulted from the misuse of their products, and that if the argument was applied to other industries, makers of numerous products could be found liable.
The decision came on Monday in a case involving a Chicago police officer, Michael Ceriale, who was killed in 1998 while conducting surveillance of a drug operation in a public housing project, and four other victims of unrelated criminal shootings.
Their relatives charged that the makers and distributors of the guns used in the shootings had “nurtured a climate of violence” by flooding Chicago and its suburbs with guns, creating a public nuisance much like a company that spewed pollutants.
Writing for a unanimous three- member appellate panel, Judge William Cousins Jr. said, “A reasonable trier of fact could find that the criminal misuse of guns killing persons were occurrences that defendants knew would result or were substantially certain to result from the defendants’ alleged conduct.”
The ruling can still be appealed to the Illinois Supreme Court.
The appellate decision has particular significance because it is based on the same theory and similar set of facts as a larger suit brought by the City of Chicago and argued before the same appellate panel last month.
That Chicago suit followed an undercover investigation by its Police Department, which sent plainclothes officers into suburban gun stores posing as gang members and drug dealers. Though Chicago has the strictest gun control laws in the nation, the officers found they could easily buy guns without proper identification, even if they told store employees they were going to use the firearms to commit crimes.
The Chicago suit was initially dismissed in September 2000 by a Cook County judge who did not agree that a public-nuisance claim could be made against the gun industry.
Lawrence Rosenthal, a deputy corporation counsel for Chicago, said that the ruling this week was “enormously encouraging” because large parts of the case were copied from the Chicago suit.
In addition to its undercover operation, Chicago also conducted a statistical analysis which found that gun makers supplied far more handguns to stores in the city’s suburbs than the population would normally buy, suggesting that the gun makers knew many of the guns would be bought by residents of the city, where the purchase of handguns is largely prohibited.
In its decision, the Illinois appeals court ruled that if the accusations in the Ceriale case proved true, the gun makers “have the power to control the purposeful creation and maintenance of an illegal secondary market by oversupplying the areas around Chicago with handguns.”
Given this situation, the court said, the gun makers would be creating a public nuisance, though they may be legally manufacturing firearms.
The Illinois decision may also affect municipal lawsuits around the country, said David Kairys, a Temple University law professor who helped pioneer use of the public-nuisance theory against gun makers.
Until the emergence of that theory, most lawsuits against firearms makers were based on product liability, charging that the manufacturers failed to incorporate sufficient things like safety devices, and most of these suits failed.
In slightly more than half the new municipal cases, courts have allowed the suits to go forward. And in the two cases that are furthest along, those brought by Boston and a group of California cities led by Los Angeles and San Francisco, pretrial discovery has already begun, with the gun makers required to produce thousands of pages of internal company documents and their executives having to give depositions.
The courts have also cleared lawsuits to go forward in Cleveland, Newark, and Wilmington, Del. Courts have dismissed suits in New York State; Philadelphia; Bridgeport, Conn.; Camden, N.J.; Cincinnati; Miami; New Orleans; and Gary, Ind. Many of these cases are now on appeal.
Legislatures in more that two dozen states, under pressure from the rifle association, have adopted laws barring cities from suing the gun industry.