In the early aughts, municipalities across the country filed a spate of lawsuits against the firearm industry trying to combat gun violence and recoup some of the expenses that flow from gun crimes, such as the costs of emergency medical services, law enforcement efforts, and the prosecution of violations of gun laws. Like other lawsuits targeting controversial industries—e.g., asbestos, lead paint, and tobacco—the theory of liability was public nuisance. The handgun lawsuits were nearly universally rejected by courts, including by the Illinois Supreme Court in one of the leading public-nuisance cases of the last 20 years, City of Chicago v. Beretta U.S.A. Corp.

Among other things, the Illinois Supreme Court concluded that Chicago’s claim failed because 1) there is no public right to be free from the threat that some individuals may use an otherwise legal product in a manner that may create a risk of harm to another; 2) the legislature is in a better position to weigh the costs and benefits of a particular product than courts; 3) Chicago failed to prove proximate causation because the defendants’ sale of lawful firearms was too remote from the harm caused by illegal possession and use of handguns by criminals; and 4) the economic loss rule and municipal cost recovery doctrine barred Chicago’s claim for damages.

Now, 20 years later, Chicago has joined a growing list of cities that have sued Kia and Hyundai for allegedly manufacturing easy-to-steal vehicles, causing a “rise in thefts” that “led to a rise in reckless driving, motor vehicle accidents, violent crimes, injuries, and property damage.” The complaint claims that Kia and Hyundai failed to install engine immobilizers, a form of anti-theft technology, in most of the vehicles they sold between 2011 and 2022, leading to a “car theft crisis.”

Chicago’s complaint has been added to the In Re: Kia Hyundai Vehicle Theft Litigation Multi-District Litigation (MDL) in the United States District Court for the Central District of California, joining nearly 80 cases from more than two dozen district courts pending in the MDL.

The alliance between plaintiff attorneys and municipalities targeting Kia and Hyundai is simply the latest in a 60-year campaign attempting to create a public nuisance “monster that would devour in one gulp the entire law of tort.”

There are probably at least a dozen reasons courts should reject the public-nuisance claims against Kia and Hyundai. Let me emphasize just three.

First, public nuisance is about real property, not products. As the Oklahoma Supreme Court recently reasoned in rejecting an opioid public nuisance claim, public nuisance “has historically been linked to the use of land by the one creating the nuisance”; public nuisances “have no beneficial use and only cause annoyance, injury, or endangerment,” but here “the lawful products, prescription opioids, have a beneficial use of treating pain”; and if applied to lawful products, nuisance liability “would create unlimited and unprincipled liability for product manufacturers.” This reasoning applies with equal force to public-nuisance claims against the automotive industry.

Second, products liability and regulatory law—not public nuisance law—should govern liability claims based on the manufacturing, distributing, and selling of lawful products. Legislators and regulators have already chosen liability boundary lines. Those lines are drawn based on a complex set of factors involving economic benefits, public safety, health and wellness, and the public interest. Legislators and regulators are in a far better position than courts to assess and modify these boundary lines and, at least in the case of legislators, are accountable to voters for their liability decisions.

Third, expanding public nuisance liability well beyond the traditional contours of the tort violates the rule of law and due-process standards because, as Justice Gorsuch stated, “In our constitutional order, a vague law is no law at all.” Duties must be sufficiently clear to be lawfully applied. If an automobile manufacturer is to be held liable for millions in damages caused by a third party’s criminal acts, it should be informed of this well in advance of the cars hitting the market, not after the fact.

As a former county prosecutor, I understand the very real problems caused by the theft of automobiles. It is one of the most common crimes, often leading to other, more serious offenses, including robberies, drive-by shootings, and fleeing police. It is also one of the crimes that most impacts the daily life of victims. That Chicago and other cities wish to combat these crimes is right and proper. But their decision to go after vehicle manufacturers with public nuisance claims—instead of criminals with indictments—should be roundly rejected, just as the firearm claims were rejected two decades ago.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].