Criminal Prosecution

A public nuisance is a criminal wrong.  An act or omission that obstructs, damages, or inconveniences the rights of a community amounts to a public nuisance.  A common nuisance or  a public nuisance is punishable as a misdemeanor at common law. To be a public nuisance, an act must be illegal or committed in an illegal manner[i].

A criminal prosecution is the exclusive remedy for a public nuisance.  To constitute a public nuisance, the act done, or duty omitted, must affect injuriously some thing or a right in which the community at large has a common interest.  A public nuisance is an offense against the state[ii].

Damage being common to all, criminal prosecution for a public nuisance is to be redressed by indictment only[iii].

In order to file a common-law public nuisance suit, conduct or omissions that offend must:

  • interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals; and
  • interfere with the use by the public of a public place, or endanger or injure the property, health, safety or comfort of a considerable number of persons[iv].

 

A public nuisance is a crime against the order and economy of a state.  The following is an example of a state statute explaining places and persons constituting the offense of public nuisance, for which a criminal prosecution can be initiated.

1. Every place:

  • wherein any fighting between people or animals or birds shall be conducted; or
  • wherein any intoxicating liquors are kept for unlawful use, sale or distribution;
  • where vagrants resort;

 

and

2. Every act unlawfully done and every omission to perform a duty, which act or omission that:

  • annoy, injure or endanger the safety, health, comfort, or repose of any considerable number of persons;
  • offend public decency;
  • unlawfully interfere with, befoul, obstruct, or tend to obstruct, or render dangerous for passage, a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley, highway, or municipal transit vehicle or station; or
  • in any way render a considerable number of persons insecure in life or the use of property[v].

 

Acts of public indecency, such as lewdness, exhibiting obscene pictures, standing naked on a balcony in a public place, conspiring to place a young woman in possession of another for purposes of prostitution, casting a dead body into a river, and the publication of an indecent book are indictable and punishable at common law because they outrage public decency and are injurious[vi].

In a nuisance committed by a tenant, the landlord is not liable for the independent criminal act of a tenant in the erection or continuance of a public nuisance.  However, the landlord is liable for an action for damages for the erection or continuance of a private nuisance, either by himself, his/ her agents, or tenants, whereby private individuals are injured.[vii]

An indictment will lie for the erection or continuance of a nuisance or an unlawful obstruction on a public highway.  All common and public nuisances, which aggrieve, annoy, or impair the common rights of the community must be punished criminally by indictment[viii].

Counties, municipalities, and other governing bodies in the prosecution of governmental functions are liable for damages resulting from the operation and maintenance of nuisances.  A corporation is even criminally liable and can be prosecuted independently of the fact that the criminal act was performed by means of agents[ix].   A corporation is indictable for committing a public nuisance, whether the committing of the act involves nonfeasance or misfeasance[x].

In an action for a public nuisance, any evidence that tends to prove the defendant’s guilt of the offense charged is admissible.  One need not have a criminal intent to make him guilty of committing a nuisance.

In an attempt to escape liability, a defendant can argue that a particular legislation authorizes his/her activity.  However, legislative authority will not excuse a defendant from liability when the conduct is unreasonable.

However, a defendant cannot escape liability by arguing that others also contributed to the harm.

When a state does not prescribe punishment for a particular nuisance, the punishment is the one prescribed by statute for common-law offenses.  Additionally, a person convicted for maintaining a nuisance of a continuing character is generally ordered to abate the nuisance together with a fine and imprisonment.

[i] State v. Wright Hepburn Webster Gallery, Ltd., 64 Misc. 2d 423, 427 (N.Y. Sup. Ct. 1970).

[ii] Dimmett v. Eskridge, 20 Va. 308, 311 (Va. 1819).

[iii] Lansing v. Smith, 8 Cow. 146, 151 (N.Y. Sup. Ct. 1828).

[iv] People v. Sturm, Ruger & Co., 309 A.D.2d 91, 101-102 (N.Y. App. Div. 1st Dep’t 2003).

[v] Rev. Code Wash. (ARCW) § 9.66.010.

[vi] State v. Waymire, 52 Ore. 281, 286 (Or. 1908).

[vii] Center & Treadwell v. Davis, 39 Ga. 210, 217 (Ga. 1869).

[viii] State v. Morris & E. R. Co., 23 N.J.L. 360, 371 (Sup. Ct. 1852).

[ix] Turnpike Co. v. State, 96 Tenn. 249, 34 S.W. 4.

[x] Love v. Nashville Agricultural & Normal Institute, 146 Tenn. 550, 573 (Tenn. 1921).


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