Introduction
The doctrine of public nuisance,1 initially manifested in American law through criminal prosecutions or injunctive actions by government officials to inhibit conduct by private individuals that is harmful to the broader public,2 has evolved and expanded considerably over time into a sort of “super tort.”3 The wide-ranging uses of public nuisance today have led to no small amount of criticism from scholars who argue that the use of the tort has strayed too far from its original purpose and breached rational boundaries.4 Notwithstanding these criticisms, the tort serves a valuable purpose: protecting public values.5
In a 2020 lawsuit filed in Tulsa County District Court in Tulsa, Oklahoma (the Tulsa Lawsuit),6 plaintiffs argued that the city’s role in the 1921 Tulsa Race Massacre7 and its actions in the aftermath of that event, constitute a public nuisance under the state’s broad public nuisance statute.8 This suit follows the recent invocation of public nuisance by the State of Oklahoma against the pharmaceutical manufacturer Johnson & Johnson for harm to public health due to its role in the opioid crisis.9 On Tuesday, September 28, 2021, the Tulsa County District Court held a hearing on the defendants’ motion to dismiss the Tulsa Lawsuit, and a decision by Judge Caroline Wall on whether to dismiss the case or send it to trial is expected imminently.10
There are many obstacles and possible bars to a public nuisance claim succeeding in a suit seeking reparations for racial violence.11 Even if those barriers are overcome, there remains a limit on how impactful such litigation can be relative to the immense and nearly immeasurable harm of America’s history of racism and racial violence.12 However, this novel legal strategy, if successful in the Tulsa Lawsuit, could serve as a model for other communities that have suffered events of mass racial violence without any form of reparations or redress.13 Whether or not the public nuisance claim is successful on the merits in this instance, it can still serve as a valuable tool within broader advocacy efforts to bring about reparations.14
This Note assesses the possibility and potential impact of taking a public nuisance tort approach to redressing incidents of mass racial violence, where other efforts at reparations have fallen short. Part I provides a historical overview of the 1921 Tulsa Race Massacre.15 It then examines the development of public nuisance as a tort and recent contexts in which it has been applied.16 It also examines state statutes defining public nuisance, particularly focusing on the relevant Oklahoma state statute.17 Finally, it reviews the factual background and claims included in the Tulsa Lawsuit centered around the events that transpired in the summer of 1921 and reviews the broader history of efforts toward reparations for slavery and mass racial violence in the United States to provide more context.18 Part II assesses the viability of the public nuisance claim in the Tulsa Lawsuit, identifying the necessary factors for a meritorious public nuisance claim against the backdrop of Oklahoma statutory and case law, as well as possible obstacles.19 Ultimately, it finds that the lawsuit at bar should be successful.20 It then considers the applicability of the two possible remedies for a public nuisance—damages and injunctive relief to abate the nuisance—and finds that while both are legally permissible, injunctive relief is more appropriate to create the largest impact, in line with the goals of the litigation.21 Finally, it concludes that even if the public nuisance claim is dismissed, denied on the merits, or settled out of court, there is still value in bringing public nuisance suits like the one in Tulsa: no matter the legal outcome, these suits can serve to put local and state governments on notice that they must act quickly to abate any possible public nuisances emanating from past unaddressed incidents of mass racial harm to avoid liability—and once in motion, these lawsuits can drive significant public attention, further placing pressure on local officials to act.22
I. Background
A. History of the Greenwood District and the 1921 Tulsa Race Massacre
The Greenwood neighborhood in Tulsa, Oklahoma, accomplished such astonishing levels of economic success during the oil boom in the 1910s that Booker T. Washington coined the term “Negro Wall Street”—now commonly “Black Wall Street”—to refer to it.23 Facing racial segregation laws that prevented Greenwood’s Black residents from shopping elsewhere in Tulsa, Black Tulsans in Greenwood became incredibly self-reliant, building an economy in which most dollars earned stayed within the community.24 The success of Greenwood and the spirit of independence among its residents, however, bred a great deal of jealousy and racial resentment among white Tulsans.25 In addition, a spirit of mob violence and lawlessness abounded.26 In this context, Tulsa in the summer of 1921 was like a ticking time bomb; the combination of a deeply resentful, racist white citizenry and unchecked vigilante justice needed only a spark to combust.27 It is not particularly surprising then, that when a young Black boy known as “Dick” Rowland was baselessly accused of assaulting a white girl in an elevator, all hell broke loose.28 A white mob, including men who were deputized by city officials,29 responded by burning virtually all of the Greenwood neighborhood to the ground, destroying homes, rendering residents homeless, and killing as many as three hundred people.30
Accounts of the massacre are gruesome, as the depraved mob acted with impunity—including murdering an elderly couple on their way home from church, killing the accomplished Dr. A.C. Jackson in cold blood after promising him protection, and dragging a corpse across downtown.31 One survivor of the massacre, Mary E. Jones Parrish, describes watching families flee from their burning homes with babies and children in tow, and recalls instructing her young daughter to lie down and take cover while machine-gun fire rained around them.32 Many survivors recall seeing airplanes firebomb Greenwood from the air.33 An excavation in October 2020 uncovered twelve unmarked coffins at Oaklawn Cemetery, corroborating long-standing rumors of mass graves containing the remains of massacre victims.34 In addition to the human toll, a recent study estimated that, adjusted for inflation, the modern equivalent of more than $200 million of Black-owned property was destroyed in the massacre.35
In 2001, the Oklahoma Commission to Study the Tulsa Race Riot of 1921 issued a report that, among other things, found that the city of Tulsa and actions of its public officials and law enforcement officers substantially contributed to the carnage that occurred from May 31 to June 1, 1921.36 The report also raised questions about the culpability of local units of the State of Oklahoma’s National Guard.37 Adding insult to injury, the city actively took measures in the days, years, and decades following the massacre to prevent any chance of a sustained recovery in Greenwood. To begin with, the city created the all-white Executive Welfare Committee (its successor was known as the Reconstruction Committee), which ostensibly sought to lead relief efforts in Greenwood, but immediately decided to refuse any outside aid for its reconstruction.38 The Committee then put a plan in place to appraise and buy back the destroyed area in Greenwood in order to convert it into an industrial district, betraying any notion that it actually sought to help Black residents of Greenwood resettle in the neighborhood.39 The City Commission then passed an ordinance creating burdensome new requirements for any new structures built in Greenwood to be two stories tall and made of expensive fireproof materials, making it all but impossible for residents to recover.40 Incredibly, despite these measures, the Greenwood community initially managed to successfully re-create much of its former prosperity.41 In the years following the massacre, Greenwood rebuilt virtually all of the area’s homes by 1922.42 More than two hundred Black-owned businesses were operating in the district by 1942.43 Yet, despite all that the community had been through in the massacre itself, and notwithstanding its improbable resurgence following the massacre, the city’s efforts to crush a successful Greenwood district were not finished: urban renewal programs and policies that began in the 1960s with the creation of the Urban Renewal Authority served as a fatal blow to Greenwood.44 The most visible vestige of these devastating programs remaining today is a highway constructed through the heart of Greenwood.45
A recent Human Rights Watch report documented the ways in which the legacy of the massacre and the discriminatory policies that followed have left an ongoing chasm between Black Tulsans—particularly those living in North Tulsa, near the historical Greenwood district—and their white counterparts.46 Another study linked the massacre to drops in economic status and educational attainment, and even found some spillover effects beyond Tulsa to include Black people throughout the State of Oklahoma.47 Of course, Tulsa is not the only community that endured “race riots,” and the harm in all cases is devastating and enduring.48 Because Greenwood stands out due to the unprecedented scale of destruction of what was then one of the most successful and bustling Black communities, it represents a logical focal point from which to build a replicable model of reparations.49
There have been a number of efforts to hold perpetrators of the massacre accountable and to compensate victims, but so far, none have succeeded.50 In the weeks, months, and years immediately following the massacre, more than one hundred individual lawsuits were filed against the city and insurance companies by people who lost property; but these efforts were entirely unsuccessful.51 In Alexander v. Oklahoma, in 2003, a lawsuit in federal court was barred by the statute of limitations, failing to reach the merits.52 Finally, plaintiffs, including living survivors and descendants of victims, have most recently filed suit in state court, based on a theory of public nuisance.53 The outcome remains to be seen, but if successful, it could represent a vehicle through which to enforce what the Supreme Court suggested might be “otherwise perfectly valid claims” but for the statute of limitations,54 and possibly even create a replicable tort framework for obtaining redress for historical and ongoing racial violence in other communities across the country.55
B. History and Evolution of Public Nuisance as a Tort
The foundation of public nuisance doctrine dates back to twelfth-century English common law.56 At that time, the king invoked public nuisance to bring suit against anyone who infringed on the rights of the Crown in order to stop the infringement, and he required the offending party to repair the damage.57 The doctrine evolved in the fourteenth century to provide a right of action for infringements on “rights common to the public.”58 American law adopted public nuisance as a common law crime, covered by state criminal statutes to varying degrees, but typically defined so generally therein as to be practically meaningless.59 Indeed, courts and legal practitioners historically regarded public nuisance not as a tort, but rather as a prosecutorial tool for government officials to abate harm to the public.60 While public authorities historically have, and still do, principally employ criminal prosecutions to abate ongoing public nuisances,61 following a 1536 decision by Judge Fitzherbert, a body of case law emerged extending the crime of public nuisance to also recognize a public nuisance tort with a private right of action if the plaintiff could show particularized harm not shared with the general public.62 The common law around public nuisance grew to cover various minor criminal offenses by individuals that interfered with the public health, safety, morals, convenience, or other public rights of the broader community.63
Today, public nuisance doctrine has expanded well beyond its original scope, which had prototypically only involved such actions as obstructions to public highways. Now, the doctrine even includes mass products liability in some states.64 Manufacturers of such products as tobacco, firearms, lead paint, the gasoline additive methyl tertiary-butyl ether (MTBE), and more have been sued under public nuisance theory in recent decades.65 Public nuisance as a tort has also been invoked, to varying degrees of success, against electric power producers for their carbon dioxide (CO2) emissions contributing to global warming66 and against banks involved in subprime lending practices that led to the economic crisis in 2008.67 These wide-ranging uses of public nuisance have led to no small amount of criticism from scholars who argue that the use of the tort has strayed too far from its original purpose and breached rational boundaries.68 Notwithstanding these critiques, numerous lawsuits have been filed in state and federal courts recently against opioid manufacturers under a novel theory of public nuisance.69 Ultimately, the scope of public nuisance doctrine remains an open legal question as litigants in Tulsa have advanced yet another novel public nuisance theory, this time seeking redress for harm resulting from the 1921 Tulsa Race Massacre.
C. Defining Public Nuisance at Common Law Today
The Restatement (Second) of Torts defines public nuisance at common law as “an unreasonable interference with a right common to the general public.”70 Circumstances that constitute an “unreasonable interference,” according to the Restatement, include significant interference with public health, safety, peace, comfort, or convenience; conduct that is forbidden by law; or conduct that the actor knows, or should know, creates a continuing or lasting harmful effect.71 However, unlike private nuisance, the unreasonable interference need not necessarily be connected to real property or use of land.72 To recover damages for public nuisance in an individual action, the Restatement requires particularized harm to the individual bringing suit.73 In other words, particularized harm—otherwise known as “special injury”—is required in order for a private party to recover damages.74 An injury is sufficiently “special” if it is different in kind, not just in degree, from the injury to the general public.75 To seek an injunction to abate a public nuisance, one must have suffered particularized harm, must bring the action under authority of the state, or must otherwise have standing to sue, such as in a class action.76
D. Public Nuisance in Oklahoma
Some states, including Oklahoma, have adopted statutes that define public nuisance quite broadly.77 Notably, Oklahoma’s statute, like public nuisance at common law, at least on its face, does not require interference with property.78 This apparent breadth of coverage was integral to the August 2019 district court decision by Judge Balkman (later overturned by the Oklahoma Supreme Court) against Johnson & Johnson for its role in the opioid crisis within the state.79 Specifically, Judge Balkman in State v. Purdue Pharma LP found the pharmaceutical company liable for public nuisance due to the harm it caused through misleading and deceptive marketing that led to increased addiction, neonatal abstinence syndrome, and overdose deaths.80 This decision, which resulted in a judgment ordering Johnson & Johnson to pay $572 million in damages,81 is part of a wave of litigation against pharmaceutical manufacturers responsible for the opioid crisis.82 Johnson & Johnson appealed the judgment (which the judge reduced to $465 million after adjusting the math from his initial order),83 arguing in its opening brief at the Oklahoma Supreme Court that the decision was a dangerous overreach of the public nuisance doctrine that would create a slippery slope for circumventing “traditional tort rules” in the state.84 On November 25, 2020, thirty state attorneys general filed an amicus brief calling on the Oklahoma Supreme Court to reject Johnson & Johnson’s appeal, arguing that public nuisance doctrine encompasses harm to community health.85
In November 2021, the Oklahoma Supreme Court rejected the district court’s application of the state’s public nuisance law in the opioid context as impermissible.86 In a 5–1 decision written by Justice James R. Winchester, the state’s high court characterized the issue at the center of the lawsuit as a policy matter that should be left to the legislative and executive branches to deal with, rather than the kind of “discrete, localized problem[]” more traditionally in keeping with Oklahoma public nuisance doctrine.87 The court also expressed concern that application of the public nuisance law to lawful products such as opioids would result in excessive and unpredictable liability for product manufacturers.88 Ultimately, the court held that public nuisance liability in the state is limited to defendants “(1) committing crimes constituting a nuisance, or (2) causing physical injury to property or participating in an offensive activity that rendered the property uninhabitable.”89 Despite the court’s rejection of public nuisance as to products liability, a public nuisance may still be recognized in any number of contexts so long as a defendant causes harm that “[a]nnoys, injures or endangers the comfort, repose, health, or safety of others,” or “[i]n any way renders other persons insecure in life, or in the use of property,” and such harm affects “an entire community or neighborhood, or any considerable number of persons.”90
E. Tulsa Race Massacre Lawsuit
Encouraged in part by the State’s initially successful invocation of Oklahoma’s broad public nuisance statute against Johnson & Johnson, three living survivors, six descendants of deceased victims and survivors, the Historic Vernon A.M.E. Church, and the Tulsa African Ancestral Society filed suit in 2020 against the City of Tulsa, Tulsa Regional Chamber, Tulsa Development Authority, Tulsa Metropolitan Area Planning Commission, Board of County Commissioners for Tulsa County, the Sheriff of Tulsa County, and the Oklahoma Military Department, for their role in the Tulsa Race Massacre of 1921 and to abate the ongoing public nuisance in the Greenwood neighborhood.91 In their petition, two of the living survivors provide remarkable accounts of their memories of the massacre in October 2020 depositions.92 Lessie E. Benningfield Randle (Mother Randle), who is now 106 years old, recalls being very scared as a little girl and seeing dead bodies stacked up on a flat-bed truck.93 Viola Fletcher (Mother Fletcher), now 107 years old, remembers being woken up in the middle of the night to the sounds of gunfire, people screaming, and the smell of smoke in the air.94 She also testifies to watching white men shoot Black men and burn Black businesses and homes; hearing a big airplane pass over Greenwood during the massacre; seeing piles of dead Black bodies in the streets; and fleeing Tulsa with her family to the town of Claremore, Oklahoma, where they did not have a house or any financial resources and had to sleep under a tent.95 The third living survivor, Hughes Van Ellis, Sr. (Ellis), also fled Tulsa with his family, and has continued to face financial, emotional, and social challenges for his entire life.96 The ancestors of the other named plaintiffs include: Attorney J.B. Stradford, one of Greenwood’s most successful businessmen, whose property was destroyed in the massacre; Clarence Rowland, who was kidnapped, beaten, and tortured by white men for two weeks immediately after the massacre; Wess Young, who was detained against his will and whose property was destroyed in the massacre; Dr. A.C. Jackson, who was murdered and whose property was destroyed during the massacre; Attorney H.A. Guess, whose property was looted and destroyed; and Attorney A.J. Smitherman, a nationally known journalist whose property was looted and destroyed during the massacre and who was forced into exile.97
While the Johnson & Johnson litigation was brought by the State, one important feature of this new lawsuit in Tulsa is that it is brought by private individuals, and thus, is subject to the “special injury rule.”98 The complaint, in Section V, thus outlines “Special Injury to the Plaintiffs,” claiming that such injury to plaintiffs includes a range of financial and social insecurity, physical and emotional distress, poor health, loss of status and family wealth that resulted from destruction of their properties, and unlawful detention during the massacre.99 The lawsuit alleges that a range of public rights were violated during and following the 1921 event.100 Because under Oklahoma law there is no statute of limitations for a public nuisance where “an actual obstruction of [a] public right” occurred,101 the plaintiffs argue that the city and other named defendants are still liable for the public nuisance that began in 1921, notwithstanding that a century has passed since the massacre.102 Further, state law explicitly leaves open the right to recover damages, even where a nuisance is abated.103 Therefore, the plaintiffs in this case seek both abatement of the nuisance and damages.104 More than a year after the litigation commenced, Judge Caroline Wall of the Tulsa County District Court held a hearing on Tuesday, September 28, 2021, on the defendants’ motion to dismiss, and will soon decide whether or not to allow the case to proceed to trial.105 On Thursday, December 30, 2021, Judge Wall also granted a request by plaintiffs to brief her on the recent Oklahoma Supreme Court decision in Johnson & Johnson due to its significant impact on the public nuisance claims they raise in their own lawsuit.106 Plaintiffs and defendants subsequently filed memoranda addressing Johnson & Johnson’s implications for the Tulsa Lawsuit.107
F. Race Reparations for America’s History of Slavery and Racial Violence: Brief History of Forms, Theory, and Practice
Before evaluating the viability of public nuisance doctrine to address harm resulting from mass racial violence, it is helpful to understand the broader history of reparations. There are a number of instances of reparations efforts for mass racial violence throughout history,108 but these examples are still strikingly few, often fail to result in any real reparations being paid, and pale in comparison to the vast total amount of harm.109 Of the few successful examples of reparations, none have been granted to Black Americans for state-sanctioned racial discrimination.110
While the term “reparations” often conjures up the idea of legislation that allocates funds to repay the victims, survivors, and descendants of racial harm,111 judicial interventions can also be used to achieve redress.112 A possible legal framework for obtaining reparations through the vehicle of intentional torts and unjust enrichment emerged in the early 2000s following earlier generations of reparations theory that served to open the possibility of group-based, forward-looking remedies for slavery and other forms of racial violence and harm.113 Of course, there are advantages, disadvantages, and obstacles to both approaches. Legislative reparations are extremely scalable (there is practically no limit to the possible scope), but such legislation faces strong political headwinds.114 Judicial reparations are better suited to achieve redress for acute instances of specific communities being targeted,115 though such remedies can still achieve scale in theory where there is a replicable litigation strategy. However, tort-based litigation efforts in the past have suffered substantial obstacles and found little success in courts to date.116
II. Analysis
A. Do the Tulsa Plaintiffs Have a Cognizable Public Nuisance Claim?
Mass racial violence may not intuitively fit within the traditional concept of public nuisance doctrine.117 Typically, legal practitioners and observers may think of an obstruction to a public road, an oil spill in a large body of water, or a hog farm that depresses the value of the surrounding area and/or renders it unusable as common examples of public nuisance.118 The burning down of a neighborhood, killing of hundreds of residents, and subsequent actions to deny a full and sustainable restoration to its successful economic roots, seem strikingly different from these prototypical examples of public nuisance.119 Further, the recent Oklahoma Supreme Court ruling in the Johnson & Johnson case, at least on the surface, indicates a reluctance to recognize nontraditional public nuisance claims.120 However, that decision narrowly applied to products manufacturers, which the court distinguished from defendants who commit crimes constituting a nuisance or who “caus[e] physical injury to property or participat[e] in an offensive activity that render[s] the property uninhabitable.”121 Certainly, there is a strong argument that the extensive physical injury to property that took place in the Tulsa Race Massacre, which rendered virtually all of Greenwood uninhabitable as most structures were burned to the ground, is in keeping with the state’s precedent for when a public nuisance may be recognized. Putting aside the issue of judicial courage to address racial injustice, it is clear on the law that the harm perpetrated against the Greenwood community should qualify as a public nuisance.
1. Interference with a Public Right
To succeed on a public nuisance claim at common law, the plaintiffs must first demonstrate unreasonable interference with a public right.122 Proving this element is often challenging, either because a court may find that the conduct complained of violates a private as opposed to public right, or because of insufficiently unreasonable interference.123 However, the Second Restatement eschews traditional common law conceptions of interference with a public right where a state statute explicitly provides that public nuisance includes “interference with ‘any considerable number of persons.’”124 Oklahoma’s public nuisance statute includes precisely such language and thus, the “considerable number of persons” standard, rather than establishing interference with a public right, applies in making a determination of unreasonable interference.125 The massacre and the events that followed in Tulsa affected and continue to affect the entire neighborhood of Greenwood, easily meeting the statutory standard for unreasonable interference in Oklahoma.126
2. Conduct Constituting Public Nuisance
The plaintiffs in the Tulsa Lawsuit claim that a series of acts and omissions during and arising from the massacre constitute a public nuisance that has affected, and continues to affect, all of Greenwood and the Black population of North Tulsa more broadly.127 Such acts begin with direct participation by the police, city officials, and National Guard in the killing, looting, and destruction of property during the massacre itself, as well as deputization of members of the angry white mob.128 Then, in the immediate aftermath of the massacre, plaintiffs allege that defendants forcefully detained more than five thousand Greenwood residents at the Ballpark and Convention Center and forced detainees into labor in the clean-up efforts from the destruction caused by defendants.129 They further claim that in the years and decades that followed, defendants promulgated a series of policies, including zoning ordinances designed to prevent the rebuilding of Greenwood; misrepresented the massacre as a “riot,” which prevented residents and business owners from collecting on insurance policies; affirmatively rejected monetary aid from around the country meant to help displaced Greenwood residents; convened an all-white jury that indicted Greenwood residents for causing their own destruction; called for more aggressive policing of Greenwood; continued to participate in organized racial terror through direct involvement of city officials in incorporating the Ku Klux Klan locally; instituted “urban renewal” policies under which the city took property, built a highway through the middle of Greenwood, and set into motion a steady decrease in area property values; diverted resources away from the predominantly Black North Tulsa community; and excluded Black people from managerial and leadership positions in appointed public employment with few exceptions.130 Beyond these acts, plaintiffs allege a set of unlawful and discriminatory omissions that they claim perpetuated the nuisance caused initially by the massacre.131
By actively participating in Greenwood’s destruction, omitting to perform its duty in protecting the residents of Greenwood from a murderous mob, and taking no substantial actions to help Greenwood recover, the City of Tulsa and other named defendants rendered Greenwood’s residents “insecure in life, or in the use of property” under the state’s definition of nuisance.132 The Johnson & Johnson decision is instructive.133 There, Judge Balkman found that a pharmaceutical company’s predatory and deceitful marketing of addictive substances harmed a considerable number of Oklahoma residents, and constituted a public nuisance that “annoys, injures, or endangers the comfort, repose, health, or safety of others” under the state’s public nuisance statute and must be abated.134 So too should the ongoing harm in Greenwood that has resulted from the massacre and the actions and omissions that followed.135 Like a private company knowingly causing large swaths of individuals to become addicted to opioids that they were led to believe were safe, here, the city and public officials knowingly allowed a murderous mob to run rampant and murder, loot, steal, and set fire to an entire neighborhood.136 Where Johnson & Johnson tapped “high-opioid-prescribing physicians” in the state to drive up sales of an addictive substance that subsequently and predictably led to an increase in opioid addiction and overdose deaths,137 Tulsa police deputized and armed white male members of a mob that had assembled outside the courthouse, who unsurprisingly became, according to a report by Captain Bell of the National Guard, “the most dangerous part of the mob.”138
Courts have held cities liable for nuisance for far less, such as failing to monitor and repair leaky sewage and causing water mains to break or collapse.139 In Milwaukee Metropolitan Sewerage District v. City of Milwaukee, the Wisconsin Supreme Court found that the City of Milwaukee may be liable for nuisance arising from negligence due to its failure to act by not repairing a leaky water main.140 At best, the City of Tulsa similarly bears liability for acting negligently in its failure to act to prevent the murderous mob from attacking Greenwood, but the facts likely point more toward “intentional conduct”—if not for the purpose of causing the harm, then in spite of knowledge that the harm that followed was substantially certain.141 After all, the nature of a violent, armed mob is significantly more conspicuous and dangerous than a leaky water main.142 In a decision involving conduct more analogous to the violent mob in Tulsa, the Supreme Court of California found that a public nuisance existed where a street gang occupied a neighborhood and obstructed residents’ ability to move freely about public streets, as well as the use and enjoyment of their property.143 If a street gang’s activities qualify as conduct constituting a nuisance because they deprived neighborhood residents of their public right to move about and freely use and enjoy their local streets and homes, it follows that the actions of the Tulsa police, city officials, and National Guardsmen in forcefully holding residents of an entire neighborhood in detention camps—after enabling and contributing to the destruction of their very homes and subsequently taking measures to prevent the rebuilding of their homes—must also be conduct that constitutes a public nuisance.144
While conduct constituting public nuisance may most typically be recognized in the contexts of interference with property, mass products liability, and environmental harm, the plain language of Oklahoma’s statute, together with the expansion of the doctrine’s use in recent years, indicates that public nuisance can and should be recognized in the case of communities like Greenwood whose public rights have been unreasonably interfered with.145
3. Standing and the Special Injury Rule
Because the plaintiffs in this case are private individuals bringing an action for public nuisance, in order to have standing to bring the claim for damages, they must show that they have suffered a special injury, different in kind from other members of the public exercising the same public right.146 Recent Oklahoma case law is unsettled as to whether such injury must be different in kind from that suffered by one’s neighbors, or simply “different in kind from the injuries suffered by those outside the affected neighborhood—i.e., by the public at large.”147 However, if made to decide the issue, precedent suggests it is likely that the Supreme Court of Oklahoma would opt for the broader view of the special injury rule.148
If the plaintiffs must simply show the latter, broader interpretation of the special injury rule to make a sufficient demonstration of special injury, they will easily succeed.149 The injuries Greenwood residents suffered during and following the massacre were different in kind from those to the same public rights suffered by other members of the public at large outside of the neighborhood because they were physically harmed and entirely deprived of the use and enjoyment of their streets and homes.150 Even putting aside physical harm and access to land, Greenwood residents suffered a different kind of harm than that suffered by others in the broader community exercising the same public right(s); for example, it is possible that some white Tulsans in South Tulsa suffered interference with their right to enjoy the reasonable use of their property because, perhaps, billowing smoke from the fires in Greenwood drifted in their direction, bringing with it a noxious odor and impairing the air quality in and around their homes.151 Those individuals would have suffered harm to the same public right, but it is harm of a different kind than that of someone in Greenwood, whose interference with the reasonable use of his property was due to the physical burning down of his house and its surroundings during the massacre, before forcefully being kept in a detention camp and subjected to zoning ordinances that then made it prohibitively expensive for him to rebuild.152
However, if the court were to take the former, narrower view of special injury, the plaintiffs would have to demonstrate that, even compared to others in Greenwood, the harm they particularly suffered was of a different nature.153 The amended petition explains how each individual plaintiff is directly and uniquely affected by the ongoing nuisance.154 Even under the narrower view of special injury, some of the plaintiffs—such as the nephew of Dr. A.C. Jackson, who was murdered during the massacre—and the daughter of Clarence Rowland, who was kidnapped, beaten, and tortured for two weeks by white men seeking the whereabouts of Dick Rowland—would appear to have suffered a special injury, different in kind even from their neighbors in Greenwood.155 Others who suffered harms shared by many in Greenwood—such as destruction of property—might only meet the special injury requirement if the court takes the broader view that their injury must simply be different in kind, as it relates to the public right interfered with, than others in the broader public who have suffered the same injury.156 Because precedent suggests that the court would likely take the broader view, the plaintiffs should succeed in demonstrating special injury.157
While standing to sue in general may be relatively straightforward for the living centenarians who themselves lived through the massacre,158 it is more attenuated for the named plaintiffs who are descendants of victims.159 Scholarship on standing in reparations lawsuits suggests that while victims themselves have stronger claims for standing, descendants may also have standing where their parent was killed by a state-condoned action, or they have suffered pecuniary loss.160 Nonetheless, the ongoing nature of the nuisance alleged by the Tulsa plaintiffs likely confers on them stronger standing than, say, someone whose ancestor suffered an acute, isolated injury, because at least some of the harm is immediate and current.161
4. Causation
Critical to most analyses of public nuisance claims is the concept of causation.162 According to one conception of causation in public nuisance claims, “[T]he critical question is whether the defendant created or assisted in the creation of the nuisance.”163 At least in the context of products liability, such as lead paint manufacturers, courts have disagreed about whether control over a nuisance is necessary in order to hold a defendant liable for abating it.164 However, the Restatement suggests that a defendant who created a harm that continues, even after the activity that gave rise to it ceases, is still liable for the continuing harm even if he is no longer in a position to abate the harm; this suggests that control is not a necessary element for determining causation.165 In the context of the massacre, the city was arguably, at least to a substantial degree, in control of the murderous mob since its own officials both participated in the destruction and deputized members of the mob.166 Thus, even if the court views control as a necessary element to establish causation, there is a strong argument in favor of finding causation at least as it relates to the nuisance of the murderous mob that perpetrated the massacre itself.
Defendants might argue that there are too many intervening variables contributing to ongoing harms related to the insecurity, health, emotional distress, and economic hardship facing Black residents of Greenwood and greater North Tulsa, and that these harms cannot be attributed to the massacre and its aftermath.167 While it may be the case that other causes aside from the massacre have contributed to these inequities and disparities, under Oklahoma common law, such intervening causes do not necessarily relieve the original perpetrator of harm from liability.168 For the original actor to be insulated from liability, an intervening cause must exist independently from the original act, be capable of causing the harm by itself, and not be reasonably foreseeable.169 Without doubt, the decades that followed the massacre continued to effectuate discriminatory laws and perpetuate racism that manifested in a myriad of ways, leading to disparate outcomes for Black Americans nationally.170 Yet, such additional causes are inexorably bound up in the inequities flowing from the massacre and cannot be perceived separate and apart from the enduring impact of that event, as they would have to be to shield the original actors from liability under Oklahoma law.171 Indeed, the uniquely high levels of mortality, morbidity, poverty, and other outcomes among Black Tulsans, even when compared with Black Americans nationally, is evidence that something uniquely endemic took place in Tulsa for which the nation’s broader racist sins cannot cut off liability.172 Further, the city is a continuing entity that lives on beyond the mortal lifespan of its political leaders. In the decades that followed the massacre, the city continued to take actions, such as the construction of a highway through the center of Greenwood, to sustain the ongoing nuisance, and remained a proximate cause of its demise.173
The Supreme Court of Oklahoma follows the general tort concept that foreseeability is an important factor in determining causation.174 When city officials deputized and armed members of an angry mob, the destruction that ultimately resulted was quite foreseeable.175 Further, the 2001 report by the Oklahoma Commission to Study the Tulsa Race Riot of 1921 documents quite clearly the city’s and state’s respective roles in causing harm to Greenwood residents.176 Because this report was authorized by the state itself in order to investigate the events of 1921 and those that followed in Greenwood, it should be given significant weight as evidence to establish causation.177
5. Statute of Limitations
One of the primary benefits of bringing a public nuisance claim to redress the harm emanating from a nuisance that began many decades ago, at least under Oklahoma’s public nuisance statute, is that it explicitly bars any statutes of limitations from applying.178 This is significant because timeliness often presents the biggest challenge when it comes to bringing reparation tort claims.179 Past litigation efforts seeking restitution for harm caused by the Tulsa Massacre in federal court—based on civil rights and constitutional claims, as well as state law claims for negligence and promissory estoppel—were barred by the statute of limitations.180 Scholars criticized this decision and advocated for a more expansive view of equitable tolling doctrines that would allow the plaintiffs to bring suit against the city and state for their roles in the massacre notwithstanding the many decades that have elapsed.181 Nonetheless, even putting aside res judicata, it is unclear whether courts’ views on the permissible scope for equitably tolling the statute of limitations have changed significantly; and in the meantime, an additional quarter of a century has elapsed.182 Plaintiffs in the present lawsuit in state court avoid this major obstacle due to the state’s clear statutory language and case law putting aside any statute of limitations as applied to an unabated public nuisance.183 Furthermore, Oklahoma case law is clear that the same doctrine barring the application of any statute of limitations to public nuisance claims applies equally to suits brought by private plaintiffs, such as the one at issue here, as those brought by the State.184
B. Proper Remedy to Address the Public Nuisance in Tulsa
There are two possible remedies for addressing public nuisance: damages and abatement.185 According to the Restatement, individuals seeking to recover damages must meet the special injury rule.186 If they have made the requisite showing of special injury to qualify for damages, then they may also enjoin to abate a public nuisance.187 However, if they have failed to show special injury and are unable to maintain an action for damages, then they also lose standing to seek injunctive relief.188 Alternatively, an action to enjoin to abate a public nuisance may be brought on behalf of the public by the State, or by a citizen’s action or class action.189 The Johnson & Johnson opioid lawsuit brought by the State of Oklahoma is an example of bringing a public nuisance claim on behalf of the public and seeking an enjoinment to abate the nuisance.190 Although the headlines coming out of Judge Balkman’s decision focus on the order to pay $465 million,191 it is important to note that this payment is packaged as the cost of one year of an abatement plan designed to provide wraparound treatment and services to help people suffering from opioid addiction.192 Thus, a public nuisance lawsuit brought on behalf of the public may still yield financial compensation as part of an enjoinment to abate the nuisance, even though such lawsuits may not directly seek damages.193
In the Tulsa Lawsuit, plaintiffs are seeking both damages and abatement.194 As discussed in Section II.A.3, the court’s interpretation of the special injury rule—and whether plaintiffs must show an injury of a different kind than that of the broader community, or of a different kind than that of their immediate neighbors—will be determinative as to whether they can seek damages.195 And, in turn, because they are bringing a private action, they may only seek an injunction to abate the nuisance if they have shown a special injury sufficient to qualify for damages.196 Thus, as a qualifying matter, the special injury rule is the threshold issue for plaintiffs to establish eligibility for damages or injunctive relief to abate the nuisance. Though Oklahoma’s case law is unsettled on the matter, precedent indicates that the court would likely opt for the broader view of special injury, and thus, plaintiffs would qualify for both damages and abatement.197 Yet, a question remains as to whether granting damages, abatement, or both is the most appropriate action for the court to take, should it find the defendants liable for public nuisance.
While damages may be beneficial to the named plaintiffs in the lawsuit, this would not be a proper vehicle for addressing the full scope of harm done to the many thousands of individuals and families directly impacted by the massacre.198 If justice for Greenwood is the goal—and not just for the impacted individuals named in the suit—injunctive relief is a more appropriate remedy. Like the abatement plan Judge Balkman ordered in the Johnson & Johnson opioid case,199 the court in the Tulsa case could similarly order defendants to pay into a Tulsa Race Massacre abatement plan, which could be used to grant scholarships,200 offer low-or-no-interest loans to start businesses or buy homes,201 or even direct special payments to families, victims, and survivors.202 These are just some possibilities of what such a plan might include; the lawsuit itself makes a series of suggestions for actions the court might order defendants to take to abate the nuisance.203 As advocates for reparations have suggested—and the wide range of harm cited in the Tulsa Lawsuit reflects—the type of relief offered for such complex harms should be similarly multifaceted.204 The remedy of abatement provides a vehicle for just such multifaceted relief.
C. Value in Bringing Public Nuisance Claim to Redress Harm Caused by Massacre, Regardless of Legal Success
A legal win at trial is not the only way to “succeed” by bringing a public nuisance claim. For example, when it comes to the opioid crisis, while the Johnson & Johnson case in Oklahoma did make it to trial, most similar suits have instead ended up in, or are headed toward, substantial settlements.205 Similarly, public nuisance suits like the one in Tulsa can extract compensation without necessarily winning on the law. Bringing this lawsuit additionally drives increased public attention that not only serves to educate the broader American public about this monumental and despicable event that too few were aware of until recently,206 but also places political pressure on public officials to take bold action to finally compensate the victims, their families, and descendants on the cusp of the massacre’s centennial.207
Furthermore, if other communities that experienced unaddressed incidents of mass racial violence similarly bring public nuisance lawsuits, it may put cities and states around the country on notice that they should actively work to abate ongoing harm from similar incidents of mass racial violence in order to prevent the potentially greater costs of dealing with a public nuisance suit down the road. Like Tulsa, other communities that were ravaged by mass racial violence in the Jim Crow era can similarly view these lawsuits not only as a way to achieve reparations on the law, but also as vehicles to drive attention and support which serve to hold leaders and public officials accountable.
Finally, there has been much hand wringing about the abuse and misuse of public nuisance by government.208 Bringing a public nuisance lawsuit takes a favorite tool most often used by the government to prosecute bad actors in the private sector—and one that has become ever more expansive in its scope and use—and reclaims it to similarly hold the government itself accountable.
D. Limitations of Using Public Nuisance Doctrine to Redress Mass Racial Violence
There are clearly limitations to a tort-based, public nuisance framework for achieving reparations. This Note does not argue that public nuisance can or should be the sole means through which to redress the full impact of racial violence in the United States at scale. To begin with, one scholar, Eric J. Miller, has characterized this type of tort-based litigation strategy to achieve reparations as “confrontational reparations” and argues in favor of a “conversational model” instead.209 However, Miller points specifically to Tulsa and acknowledges that sometimes, when activism and legislation reach a dead-end, litigation becomes necessary.210 Though some observers may be concerned that turning to litigation, when the democratic branch of government fails to produce results, amounts to a violation of separation-of-powers principles, the plaintiffs in Greenwood suffered justiciable harm, just as the victims of the opioid crisis in the state did.211
Beyond such concerns about “confrontational reparations,” even if successful in courts, while a public nuisance strategy could be replicable in many communities beyond Greenwood, it will simply not be capable of achieving reparations at the same scale as reparations through legislation.212 Indeed, the plaintiffs behind the massacre lawsuit appeared to recognize as much when they appeared before Congress on Wednesday, May 19, 2021, to testify about the trauma they suffered in 1921 and how the massacre continued to impact their lives one hundred years later.213 Reparations legislation need not necessarily even be focused on monetary compensation to make a substantial impact as a tool for reckoning and healing.214 Even if the Tulsa Lawsuit succeeds in recovering monetary damages for the named plaintiffs, it will hardly make a dent in the harm done to the other thousands of 1921 Greenwood residents and their descendants—many of whom have long since left the Tulsa community—let alone the many Black Americans in other communities who have been terrorized by racial violence.215 However, despite its limitations, a novel tort-based theory can add a new and still-useful plank to the set of tools that are available.
Conclusion
Ongoing multigenerational harm caused by specific incidents of mass racial violence is within the reach of broad public nuisance statutes, such as the one in Oklahoma.216 However, a tort law approach to redressing racial violence cannot achieve reparations at full scale for all of the harm inflicted by the country and its state and local governments from slavery to Jim Crow to today.217 A legislative solution would offer a pathway to a more comprehensive set of reparations.218 Yet, the likelihood of passing substantial federal reparations legislation remains relatively low, even after an uptick in public support for the idea in 2020.219 Congress moves slowly, and besides, H.R. 40—a bill that has been introduced in every Congress for over thirty years—itself seeks only to establish a commission; it is not a bill directly proposing a specific reparations plan.220 A public nuisance tort strategy is a replicable model, and there is no better proof point from which to tip over the first domino than the community that suffered the most notorious and harmful incident of racial violence in Tulsa, Oklahoma. Moreover, the Tulsa plaintiffs’ public nuisance claim is meritorious based on Oklahoma statutory and case law, and it should succeed.221 Regardless of its legal success, the lawsuit also serves a valuable purpose to advance public conversation around reparations generally and in Tulsa specifically, and to place increased pressure on local officials to take action to redress the harm still emanating from the massacre.222
The harmful legacy of the massacre is a scar on Tulsa that, so long as it continues to be inadequately addressed, will hold back not only Black residents, but the entire community. There are signs that the city is taking some steps towards reconciliation.223 In October 2020, an excavation done by the city in an effort to investigate rumors of mass graves from the massacre unearthed eleven coffins in Oaklawn Cemetery.224 By June 2021, thirty-five coffins were discovered and the remains of nineteen individuals were taken to a lab for forensic analysis.225 According to a forensic anthropologist working on the investigation, there is evidence consistent with these individuals having likely been massacre victims.226 However, Tulsa Mayor G.T. Bynum has stated that cash payment reparations would divide the community and thus is not something he would consider.227 There is no indication that any statewide legislation is likely either. So long as this is the case, a public nuisance suit not only makes a viable legal claim on the merits, but also forces a necessary conversation that it seems the city and state are otherwise unwilling to have.