• Survivors of the racist attacks on Tulsa's Black community say its effects are a "public nuisance."
  • Opioids, guns, and fossil fuels have all been targeted in similar suits, with mixed results.
  • Some see nuisance laws as a powerful tool for justice, while others say they're exploited.
  • See more stories on Insider's business page.

On May 31, 1921, hundreds of white people overran Greenwood, a largely Black neighborhood in Tulsa, Oklahoma. They killed dozens of people, burned hundreds of businesses and homes, and imprinted young Lessie Randle with memories that would haunt her for life.

Now 106 years old, Randle is suing Tulsa and the state of Oklahoma for reparations.

But the Tulsa lawyer Damario Solomon-Simmons and Randle's other attorneys — a group of local civil-rights attorneys, law professors, and big-firm litigators — are using a somewhat unusual legal tactic. They're accusing the city and county of Tulsa, the state of Oklahoma, and a regional business association of creating a "public nuisance" that continues to this day.

Randle and other massacre survivors want a victims' compensation fund, similar to the one created by Congress in response to the September 11, 2001, attacks. They're also asking for a land trust, scholarship funds, and tax abatements to benefit victims, their families, and longtime residents of Greenwood and North Tulsa.

"We're asking for a lot because we need a lot to abate the nuisance," Solomon-Simmons, who is representing the plaintiffs, said earlier this month. He said massacre victims and their families have faced decades of discrimination at the hands of governments, insurers, and banks.

Public-nuisance laws have been invoked in fights against Big Oil, gunmakers, lead-paint companies, and opioid manufacturers, with mixed results. Some view them as a powerful tool for justice, while others say the laws are being stretched far beyond their original purpose.

Public-nuisance laws are hundreds of years old and have been used in a wide variety of cases

Public-nuisance laws date back to medieval England, but in recent decades, plaintiffs' lawyers and regulators have used them in a wide variety of public-interest cases. Lawsuits against big banks, tobacco companies, and polluters have all been brought under public-nuisance law.

Some recent nuisance lawsuits have been successful. In 2019, California counties and private-sector plaintiffs' lawyers struck a $305 million settlement with Sherwin-Williams and other companies over their sales of lead paint in the 1970s and earlier. And in Oklahoma, a court ordered Johnson & Johnson to pay $465 million over its marketing of opioids. (J&J has said it will appeal.)

But most high-profile public-nuisance lawsuits have fallen flat. Lead-paint cases in Rhode Island and New Jersey failed. Cities like Chicago sued Smith & Wesson and other gunmakers in the late 1990s using public-nuisance laws, but almost all those cases were tossed out by 2004, the Chicago Tribune reported. Cleveland and Cincinnati accused big banks of creating a nuisance by foreclosing on thousands of homes during the 2000s financial crisis, but those cases were also dismissed.

More recent lawsuits accusing Exxon, BP, and other fossil-fuel companies of creating a public nuisance by feeding into the climate crisis have generally met the same fate. A Texas court went so far as to scold California cities for trying to enlist the courts "to do the work that the other two branches of government cannot or will not do" on the climate emergency.

"It is part of the history of mass industrywide litigation in which ideas are largely cooked up in the offices of private lawyers and sold to municipalities," Walter Olson, a senior fellow at the libertarian Cato Institute, said at a panel last year.

Victims' lawyers say they're trying to fix long-simmering injustice

States' nuisance laws vary, but Oklahoma's law, which dates back to at least 1910, is broadly worded. It bans any act or failure to act that "in any way renders other persons insecure in life, or in the use of property."

Lawyers for the victims of the Tulsa massacre say they're using the law in the same way Oklahoma did when it sued Johnson & Johnson in an effort to hold the company accountable for the opioid epidemic.

The city government of Tulsa, the state of Oklahoma, and other defendants have all sought to have the case thrown out. They have said the claims by some plaintiffs, or allegations against some defendants, including agencies like the Tulsa Development Authority, are too vague. They also noted that other survivors of the massacre sought relief in a lawsuit in 2003 that was dismissed for statute-of-limitations reasons.

Some of the defendants have also said the Tulsa lawsuit stretches the boundaries of public-nuisance law too far.

But Michael Swartz, an attorney at the law firm Schulte Roth & Zabel who is working on the case pro bono, believes the public nuisance law is appropriate in the Tulsa context, he said.

"This is not some generic race theory," Swartz said. "These are real people who are alive, traceable, identifiable, and concrete."

Kaimi Wenger, an attorney with the Inner City Law Center in Los Angeles, said the Tulsa case may succeed where other reparations cases — mostly based on mass-tort claims — have failed. Unlike tort claims, public-nuisance claims don't need to focus on specific acts of wrongdoing. They need to show only that actions have harmed a community, according to Wenger.

Some racial-justice advocates think public-nuisance claims aren't the right legal approach to take, Wenger said. "Traditionally, people have just wanted to bring tort claims," he said. "But, I mean, as a pragmatist, if it works, it works." 

The Tulsa massacre may have happened 100 years ago, but Randle and her coplaintiffs say its scars cut deep. The destruction of Greenwood, sometimes called "Black Wall Street," and the failure of insurers and banks to help Black Tulsa residents get back on their feet left families destitute and caused some to leave.

The defendants "owe us something," Randle said in recent testimony before Congress. "They owe me something. I've lived much of my life poor. My opportunities were taken from me and my community. North Tulsa — Black Tulsa — is still messed up today."

She added: "It seems like justice in America is always so slow, or not possible, for Black people. And we are made to feel crazy just for asking for things to be made right."

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