The Federal Government as Public Nuisance

I think that most Mormons are aware of that during the last half of the nineteenth century relations between the Church and the federal government were often chilly at best. Most Mormons, however, are unaware of the some the creative legal tactics employed by their nineteenth-century coreligionists.

For example, when federally appointed territorial judges began becoming too enthusiastic about prosecuting Brigham Young and others for polygamy, the Mormons responded by refusing to appropriate any money for the territorial judiciary. Since much of the judiciary was funded by territorial rather than federal monies, this meant that the Mormons, through the power of the purse, could effectively freeze law enforcement in Utah.

Today I found another tack that was tried. There is currently an effort underway by a consortium of public interest law firms and big time plaintiffs’ lawyers to sue gun manufactuerers. The most successful theory has been the claim that gun manufacturing and marketing is a public nuisance. Normally, a public nuisance is something like vacant lot in a residential neighborhood that a private individual fills with foul smelling garbage, or perhaps a house with unreasobalely bright night lights. However, the legal formulation of what constitutes a public nuisance is broad enough that creative judges can basically declare things that they do not think are in the public interest to be public nuisances. Hence the success of a few of the gun suits.

The Mormons tried something similar against the federal government. During the Civil War, the California Volunteers were dispatched to defend the Overland Trail from Indians (not a big problem after they massacred the Shoshone at Bear River) and keep an eye on the Mormons. They did this by moving the home of the federal armyu in Utah from Camp Floyd, several dozen miles south of Salt Lake, to Camp Douglas, which was within the city limits. The move was meant to intimidate the Mormons. A Mormon grand jury responded in 1863 by declaring that Camp Douglas and the U.S. Army were a public nuisance. I don’t know if the issue ever went to trial (the grand jury was Mormon but the public prosecutor was a federal appointee) and obviously Camp Douglas stayed. Still, it was a creative legal tactic.

4 comments for “The Federal Government as Public Nuisance

  1. Wouldn’t the feds have sovereign immunity on a common law claim like that? Or did sovereign immunity work differently back in the day?

  2. I have no idea, and the case never got to trial. On the otherhand, the usual remedy for a public nuisance is an injunction rather than money damages, so sovereign immunity wouldn’t necessarily be implicated. Also, you could have braught suit against the U.S. Army, or perhaps Colonel Connor, the officer in charge. While they might have some kind of ministerial or military immunity, they would not have sovereign immunity.

    Of course, I have no idea what the doctrine of sovereign immunity really looked like in the 19th century. I suspect that there wasn’t much of a doctrine, since the government didn’t do enough to get sued a great deal, leading to judicial elaboration. That joyous state of affairs had to await the arrival of the modern regulatory state, which first began stirring after the Civil War.

  3. I think you’re right.

    I’m also pretty sure that the case allowing the fiction of suing the officer in his personal capacity dates from the 1890s.

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