Public Nuisance Claims Against Gun Sellers: New Insights and Challenges

Gun violence continues unabated. Regulation of these deadly instruments is woefully inadequate, and legislatures are compounding the problem by barring or restricting access to the courts for the death and injuries that guns cause. In short, Congress and state legislators have repeatedly acquiesced to the demands of the gun lobby.

During the past several years, cities have struck back by filing public nuisance claims against those gun sellers whose practices pose a risk to the public’s health and safety. After a slow start, public nuisance claims have recently gained traction in state appellate courts, which are increasingly coming to realize and respect the core mission of public nuisance law. Such claims differ in essential ways from private claims as they do not seek to recover for injuries caused by guns, but rather allow municipalities to protect their citizens from the gun violence. Indeed, such nuisance abatement is a central component of the state’s police power, which requires states and their political divisions to protect public health, safety, and welfare. Several public nuisance claims seeking to compel gun makers and sellers to refrain from practices that increase the already high risk of death or injury from their products have been permitted to survive the pleading stage. This is a salutary development and reflects better judicial understanding of the difference between nuisance law and tort law. This Article lauds these developments while undertaking a critical assessment of recent cases.

Part I provides an overview of public nuisance law and discusses some important differences between claims brought by public entities and those brought by private citizens. Part II goes into detail regarding the nature of the public nuisance caused by the conduct of gun sellers. In Part III, the Authors examine some of the recent decisions in which public nuisance claims against these gun dealers have been allowed to survive a motion to dismiss, a previously insuperable hurdle, while in Part IV they analyze the significance of these small victories for the future of similar litigation. Finally in Part V, the Authors describe legislative efforts to shield gun makers from these lawsuits and note flaws in the purported justifications for such legislation.