Another nuisance theory fails to fly.

Joining other courts in the same conclusion, the Third Circuit, applying New Jersey law, held that firearms makers are not liable under a public nuisance doctrine for the manufacture and sale of handguns.

In Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001), a New Jersey county sued a raft of firearms manufacturers in federal court, alleging that the marketing and distribution of handguns created and contributed to the widespread criminal use of the weapons in the county. They relied on three theories of liability--negligence, negligent entrustment, and public nuisance--and sought several forms of relief, including compensation for additional costs to abate the alleged nuisance, an injunction, and compensatory and punitive damages.

The district court rejected all three of the bases asserted for liability, dismissing the negligence claims and finding that the public nuisance ploy was defective because the county did not allege the "required element that the defendants exercised control over the nuisance to be abated." 123 F.Supp.2d 245, 266 (D. N.J. 2000).

On appeal, the plaintiffs dropped their negligence contentions and argued only the public nuisance allegation. The Third Circuit rejected that on two grounds. First, the court adopted the Prosser-Keeton position that nuisance actions should be confined to claims connected to real property or infringement of a public right. "Whatever the precise scope of public nuisance law in New Jersey may be," the court stated, "no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the steam of commerce.... If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity."

Second, the court held that even if public nuisance law could be stretched to encompass the distribution of lawful products, Camden County had failed to allege that the defendant firearms manufacturers exercised sufficient control over the source of the interference with a public right. "If independent third parties cause the nuisance," the court remarked, "parties that have not controlled or created the nuisance are not liable."

In another firearms case, Merrill v. Navegar Inc., 28 P.3d 116 (Cal. 2001), the manufacturer mounted a successful defense on the basis of a California...