Defining a Proper Role for Public Nuisance Law in Municipal Suits Against Gun Sellers: Beyond Rhetoric and Expedience

Abstract:     
During the past few years, more than a score of municipalities (and the State of New York) have brought suit against gun manufacturers, distributors and retailers, seeking to hold them accountable for the consequences of gun violence within the municipalities' jurisdiction. This article critically assesses whether the theory of public nuisance is an appropriate vehicle for bringing such suits. Inasmuch as public nuisance theory is itself only dimly understood, the article begins with an historical summary of public nuisance law. It then considers contemporary objections to the continued vitality of public nuisance, and concludes that, properly defined and limited, public nuisance can be appropriately employed to hold gun sellers responsible for truly outrageous conduct, typically in cases involving the subversion or avoidance of legislative will. As to remedy, however, the article takes the position that, consistent with a proper understanding of public nuisance's appropriate role in the safeguarding of public health, only such relief as is likely to work toward abatement of the nuisance should be granted. As a practical matter, this means that courts should be sympathetic to requests for practical steps such as requiring persistently defiant dealerships to close down and forcing manufacturers to seriously monitor distributors and dealers. On the other hand, courts should not, at least under a theory of public nuisance, award damages that will repay municipalities for the costs incurred in dealing with gun violence, such as increased police and hospital costs.

Number of Pages in PDF File: 43

Keywords: guns, firearms, torts, tort law, public nuisance

JEL Classification: K13

Accepted Paper Series