Young v. Bryco Arms
| Citation | 262 Ill.Dec. 175,327 Ill. App.3d 948,765 N.E.2d 1 |
| Decision Date | 31 December 2001 |
| Docket Number | No. 1-01-0742., No. 1-01-0739, No. 1-01-0740 |
| Parties | Stephen YOUNG, Special Adm'r, of the Estate of Andrew Young, Indiv. and, on Behalf of a Class of Similarly Situated Persons; Arlene Macias, Special Adm'r of the Estate of Miguel Macias, Indiv. and, on Behalf of a Class of Similarly Situated Persons, Plaintiffs-Appellees, v. BRYCO ARMS, Breit & Johnson Sporting Goods, Inc.; Beretta U.S.A. Corporation; Browning Arms Company; Colt's Manufacturing Company, Inc.; Davis Industries, Glock, Inc.; H & R 1871, Inc.; International Armament Corporation d/b/a Interarms Industries, Inc.; Lorcin Engineering Company, Inc.; Navegar, Inc. d/b/a Intratec, Inc.; Phoenix Arms; Smith & Wesson Corporation; Sturm, Ruger & Company, Inc.; Sundance Industries, Inc.; Taurus International Manufacturing, Inc.; Hi-Point Firearms, Raven Arms, Inc.; Kel-Tec CNC Industries, Inc.; Jennings Firearms, Inc.; Faber Brothers, Inc.; Riley's, Inc.; and Ashland Shooting Supplies, Inc., Defendants-Appellants. Obrella Smith, Special Adm'r of the Estate of Salada Smith, Deceased, Indiv. and, on Behalf of a Class of Similarly Situated Persons; Rasell Bowman, Special Adm'r of the Estate of Willie Lee Lomax, III, Deceased, Indiv. and, on Behalf of a Class of Similarly Situated Persons, Plaintiffs-Appellees, v. Navegar, Inc. d/b/a Intratec Firearms; Bryco Arms; Beterra U.S.A. Corporation; Browning Arms Company; Colt's Manufacturing Company, Inc.; Davis Industries, Inc.; Glock, Inc.; H & R 1871, Inc.; International Armament Corporation d/b/a Interarms Industries, Inc.; Lorcin Engineering Company, Inc.; Phoenix Arms; Smith & Wesson Corporation; Sturm, Ruger & Company, Inc.; Sundance Industries, Inc.; Taurus International Manufacturing, Inc.; Hi-Point Firearms; Raven Arms, Inc.; Kel-Tec CNC Industries, Inc.; Jennings Firearms, Inc.; Faber Brothers, Inc.; Riley's, Inc.; Ashland Shooting Supplies, Inc.; and Darnell Fox, Defendants-Appellees. Anthony Ceriale, Special Adm'r of the Estate of Michael Ceriale, Indiv. and, on Behalf of a Class of Similarly Situated Persons, Plaintiffs-Appellees, v. Smith & Wesson Corporation; Chuck's Gun Shop & Pistol Range; John Riggio, Jr.; Elizabeth Riggio; Jim Riggio; Beretta U.S.A. Corporation; Browning Arms Company; Bryco Arms; Colt's Manufacturing Company, Inc.; Davis Industries, Inc.; Glock, Inc.; H & R 1871, Inc.; International Armament Corporation d/b/a Interarms Industries, Inc.; Lorcin Engineering Company, Inc.; Navegar, Inc. d/b/a Intratec, Inc.; Phoenix Arms; Sturm, Ruger & Company, Inc.; Sundance Industries, Inc.; Taurus International Manufacturing, Inc.; Hi-Point Firearms; Raven Arms, Inc.; Kel-Tec CNC Industries, Inc.; Jennings Firearms, Inc.; Faber Brothers, Inc.; Riley's, Inc.; and Ashland Shooting Supplies, Inc., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Locke E. Bowman, Jean MacLean Snyder, Thomas H. Geoghegan, Despres, Schwartz & Geoghegan, Jonathan K. Baum, Bradley S. Rochlen, Andrew J. Abrams, Katten Muchin Zavis, Chicago, for Plaintiff-Appellees.
Mary Kay Scott, Stephen A. Kolodziej, Brenner, Ford & Monroe, Ltd., Wildman, Harrold, Allen & Dixon (James P. Dorr, Sarah L. Olson and Lisa S. Simmons, of counsel), Richard J. Leamy, Jr., Wiedner & McAuliffe, Ltd., William N. Howard, Daniel J. Voelker, Freeborn & Peters, Chicago, for Defendants-Appellants.
Plaintiffs are the surviving relatives of five individuals who were shot and killed in Chicago by juveniles with access to handguns. The defendants are various manufacturers, distributors and dealers of handguns.
Three complaints, filed separately, were consolidated for the purpose of this appeal: (1) Stephen Young filed a complaint on behalf of his son, Andrew Young, who was killed on the streets of Chicago by a juvenile street gang member using a gun manufactured by defendant Bryco Arms (Bryco) (Young v. Bryco Arms, No. 98 L 6684); (2) Obrellia Smith filed a complaint on behalf of her daughter, Salada Smith, who was killed in the course of a drive-by shooting by a juvenile gang member using a gun manufactured by defendant Navegar, Inc. (Navegar) (Smith v. Navegar, Inc., No. 98 L 13465); and (3) Anthony Ceriale filed a complaint on behalf of his son, Michael Ceriale, who was killed in the course of his duties as a Chicago police officer by a juvenile gang member using a.357 Magnum revolver manufactured by defendant Smith & Wesson Corporation (Smith & Wesson) (Ceriale v. Smith & Wesson Corp., No. 99 L 05628).
After a ruling issued by the trial court on May 11, 2000, plaintiffs Young and Smith amended their complaints, in part, to include two additional plaintiffs. Young added plaintiff Arlene Macias, suing on behalf of her son Miguel Macias, who was killed in Chicago by a juvenile gang member using a .38 caliber semi-automatic handgun that was never recovered. Smith added plaintiff Rasell Bowman, suing on behalf of her son Willie Lee Lomax III, who was killed in Chicago by a 14-year-old gang member using a .38 caliber revolver that was also never recovered.
The plaintiffs' complaints allege a public nuisance claim against eighteen firearm manufacturers, four wholesale distributors and two suburban retail gun dealers who, according to the complaints, are all individually responsible for the public nuisance of widely available handguns that are accessible to juveniles in the City of Chicago.
The defendants filed various motions to dismiss plaintiffs' public nuisance claims. On February 14, 2001, the trial court held in favor of the plaintiffs, ruling that the plaintiffs stated a cause of action in public nuisance against the defendants. The trial court then certified the following question pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308) for immediate interlocutory appeal:
"Does plaintiffs' Fifth Amended Complaint in Young v. Bryco Arms, No. 98 L 6684, and plaintiffs' Third Amended Complaint in Smith v. Navegar, Inc., No. 98 L 13465, and plaintiffs' Third Amended Complaint in Ceriale v. Smith & Wesson Corp., No. 99 L 05628, state a viable public nuisance cause of action under Illinois law against the defendants in those respective cases?"
On March 6, 2001, the defendants moved for leave to appeal the trial court's order of February 14, 2001, as certified on February 20, 2001. This motion was granted on March 22, 2001.
The complaints assert that the plaintiffs and others possess a public right to use the streets and other public places within the City of Chicago without fear, apprehension and undue risk of injury to themselves or to their families. Plaintiffs allege that defendants' marketing and distribution practices have unreasonably interfered with this public right by virtue of the wide availability of handguns that are accessible to juveniles in Chicago.
Specifically, plaintiffs allege that defendants produce and sell handguns that are designed to appeal to criminally oriented juvenile street gangs and other criminals. For example, defendant Navegar markets the TEC-DC9, a military-style assault weapon that features a silencer, a sling swivel to facilitate spray firing of the weapon and a finish that provides resistance to fingerprints. Defendant Bryco Arms markets the Bryco 59, a semi-automatic handgun that is small, easily concealable and inexpensive. Defendant Smith & Wesson markets the .357 Magnum revolver as a "man stopper," which is capable of firing a longer than usual round and propelling a bullet more rapidly so as to do more damage to the intended target.
Plaintiffs also allege that defendants: (1) distributed firearms through a market structure intentionally created by defendants by relying on low-end retailers who encourage purchasers to illegally transport weapons to Chicago; (2) failed to regulate or discipline known irresponsible dealers; (3) flooded the market in areas surrounding Chicago, knowing and foreseeing that excess firearm supply would be taken to Chicago and possessed and used illegally; and (4) created and maintained an underground market for handguns "knowing and intending this result."
Plaintiffs allege the following facts regarding the circumstances surrounding the death of plaintiffs' decedents. First, the Young complaint alleges that Andrew Young was shot and killed on June 10, 1996, at the corner of Clark and Howard Streets in Chicago. The complaint asserts that Mario Ramos shot Young at the instigation of Roberto Lazcalo, who was allegedly associated with the Latin Kings. The firearm used by Ramos was Bryco 59 manufactured by defendant Bryco Arms. It was shipped to defendant distributor Jennings Firearms, Inc., on July 23, 1993. On July 28, 1993, Jennings shipped the weapon to defendant distributor Riley's, Inc. Riley's then shipped the gun to defendant retail seller Breit & Johnson Sporting Goods, Inc., on August 6, 1993, located in Oak Park, Illinois. The complaint further alleges that Bryco was on notice that both Jennings and Riley's were among a core group of 10 irresponsible distributors who acted as distributors for nearly half of the firearms traced to crimes in Chicago. The complaint alleges that Riley's was also on notice that Breit & Johnson was one of a core group of 24 irresponsible gun dealers operating in Chicago.
On September 7, 1993, the gun was sold to Mariano DiVittorio under circumstances which the plaintiffs allege should have alerted Breit & Johnson that this was a "straw purchase" (i.e. purchased not for DiVittorio himself, but for the benefit of Daniel Escobedo, a notorious convicted felon with ties to the Latin Kings street gang). Escobedo then directly or indirectly caused the gun to be transferred to the Latin Kings, making it available to Roberto Lazcalo and Mario Ramos, who used it to kill Andrew Young.
According to the Young complaint,...
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