About a Law Review Article on Stolen Guns

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This post was published on Daily Kos.

I have been advocating a mandate for gun insurance for two years now.  In order for insurance to cover the majority of shootings, it must cover not only the original, proper or legal owner of a gun but anyone who might pick up the gun or steal it and later use it.  This is the most controversial part of my recommendation, which is:

Insurance should be required of manufacturers and importers of firearms that would cover all persons injured with a firearm having at least the benefits for an injured worker of average wages under workers compensation in the state where the injury occurs.  The insurance should remain in effect no matter how the gun is transferred to anyone else until it is replaced by similar insurance taken out by a new owner or the gun is certified destroyed.

I also advocate that legislatures make gun owners more responsible for their weapons buy adopting absolute liability for gun owners in a manner similar to the absolute liability of dog owners for dog bites in many states.  It’s not clear in that case whether the original owner of a stolen dog would be responsible after the dog is stolen.  There are not enough cases to have it decided in the courts yet.   In another possibility, legislatures could create a presumption of negligence for a gun owner that allows a gun to get into improper hands as they do for drivers of cars who hit pedestrians in crosswalks or other cars from behind.

I get plenty of negative feedback on holding gun owners responsible either through an insurance mandate or absolute liability for stolen guns.  Some people claim that the intervention of a thief stops all liability; that’s sometime but not always true in our legal system.  Some people think it’s just not fair to hold a person responsible for their gun after it’s stolen.  I think that keeping a gun in a way that it might be stolen puts us all at risk and appropriate responsibility should be assessed.

A new article on this subject has appeared in the Florida Law Review, The Second Amendment Right to be Negligent by Andrew Jay McClurg.  This is a great presentation of the special legal treatment given to guns compared to anything else in our society. It states:

This Article asserts that, through both common and statutory law, the United States has enshrined a de facto Second Amendment right to be negligent regarding many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict, at least with regard to handguns, what the tort system is designed to prevent: death and injury to human beings.

McClurg writes primarily about the exemption of gun owners from responsibility for guns after thefts saying, “The concentration in this Article on gun thefts is a microcosm of a much larger issue.” The larger issue includes both negligence by gun manufacturers protected by the Protection of Legal Commerce in Arms Act (PLCAA) and negligence in leaving guns around to be picked up by kids which McClurg shows can be protected if there is any way to show the kid was breaking a law in using the gun.  Anyone who thinks holding gun owners responsible should read about the cases in the footnotes.

Federal law requires a secure storage or safety device be supplied with each handgun and if it is used the gun owner is immune from being held responsible for misuse by others including thieves.  McClurg points out the the usual device supplied is a childproofing measure and is not designed to prevent theft.  There are no standards for the effectiveness of such devices and they are easily defeated.

Many guns are stolen from gun sellers.  Such thefts are required to be reported but often are not.  A claimed theft from a dealer may be a cover for an illegal sale and so prompt reporting is important.  The article points out that “Only nine states and the District of Columbia have laws imposing security requirements on gun retailers;”  it goes on to compare the strict security requirements in Colorado for marijuana dealers under the new legal marijuana law to the loose requirements for gun dealers.

McClurg describes in detail how businesses that have guns taken and then used–even in the most  horrific manner–are not held to be responsible.  He shows that this is the result not only of the PLCAA but of a strong slant in the interpretations of law by the courts.

Another part of the article shows how courts have leaned over backwards to find reasons not to hold gun owners responsible for the later damage done by their stolen firearms.  He contrasts that to the many decisions and cases where poor security contributed to the risk of a third parties criminal action.  The article states:

Liability is commonly imposed in the area of inadequate security on business premises that facilitates a criminal attack, against defendants who leave keys in automobiles when the vehicles are stolen and involved in crashes, and in a diverse array of other situations where an original negligent actor created a risk of a subsequent criminal act.

He illustrates the typical behavior of courts around guns:

A case suggesting the unstated infiltration of the Second Amendment in this area is McGrane v. Cline. Plaintiff’s decedent was fatally shot in a robbery. The gun used to commit the murder was either stolen from the defendants’ home by a friend of their sixteen-year-old daughter or given to the assailant by the daughter who was left alone for the weekend while the parents were out of town. he parents left the gun unlocked in their master bedroom. The court refused to impose a duty even though it insisted that firearm thefts from homes are readily foreseeable but punted the case by concluding without elaboration that “there are too many issues of legitimate debate concerning the private ownership and storage of firearms.”

The article discusses in a footnote the only other specific industry to get a pass on liability for negligence.  The production of childhood vaccines is protected but has a compensation system funded by industry and a carefully crafted exception for extreme cases.  The article does not discuss the greatest immunity from liability for negligence in our society which is that for employers under the worker’s compensation system.

Workers’ compensation is based on a century old trade off legislated between workers and employers. The immunity for employers is balanced with a requirement that employers fund insurance which compensates injuries and deaths on a no-fault basis.  This is the best model for mandated gun insurance because there are important parallels in the risks of work and the risks from guns.

  • Both employment and gun ownership are the source of a substantial number of injuries with a need for compensation for both medical care and for loss of earnings by victims.
  • Many people want each activity to be facilitated by elimination of the worry of liability from injuries.
  • One specific job or gun is usually connected to a specific injury.
  • Each job or gun has a specific employer or owner who can be required to carry the insurance to provide appropriate compensation for injuries.

McClure’s article establishes in detail that we have one half of the bargain in the case of guns—the half that provides immunity from liability for negligence. I’m writing this to point out that we don’t have and do need the other half of the bargain which protects workers —the insurance and compensation half.  I highly recommend reading The Second Amendment Right to be Negligent.

Questions and Answers on Mandating Gun Insurance.

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This post is a good place to start if you’re new to this blog. Scan the questions and follow the ‘Related:’ link(s) if you have an interest in a particular area.  You may also want to check the category’s listed in the right hand column. 

Q: What is the purpose of mandating gun insurance?

Required insurance for guns or gun owners should be designed to provide benefits for victims of gun accidents or violence. Insurers will automatically take appropriate steps to encourage gun safety as part of their loss control and underwriting activities.

Related: Insurance-Good for Victims, Safety and Gun Owners

Q: What specifically would be the best insurance system for guns?

Each state should adopt a system of no-fault insurance with a system of delivering medical and cash benefits directly to victims. This insurance should be required to be in place for any firearm brought into or kept in the state in order for that firearm to be legal. It should provide all of the benefits available to victims of motor vehicle or workplace injuries.

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Insurance-Good for Victims, Safety and Gun Owners

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We have responsible ways to handle things which are dangerous but which are not made illegal because of their actual or assumed benefits to society. We look carefully at ways to contain the dangers and enjoy the benefits in almost every case. The exception is firearms, but we are just beginning to pull our heads out of the sand and examine this important subject.

First Principle — Mandatory No-Fault Insurance to Cover All Victims

One of the most powerful tools to facilitate a dangerous activity is insurance. Unfortunately, requiring insurance to cover gun violence has been looked at only as a way to penalize gun ownership or at least to transfer costs to gun owners. The result is calls for high limit liability insurance, usually with terms that make actual implementation unlikely. This blog argues that the tort/liability model is one of the least effective ways to increase safety and provide for victims. A No-Fault system similar to worker’s compensation or some motor vehicle insurance is much better. It needs to follow a gun that changes hands in a way to insure that all guns are covered.

Second Principle — Top Down Insurance Does Not Require Gun Registration or Owner Tracking

This blog also is advocating that insurance be required of gun manufacturers or anyone bringing a gun into the system in such a way that the insurer only relinquishes responsibility when another insurer (contracted by a new owner) takes it up. Insurance should remain in effect through any transfer legal or not. This would allow confidence that insurance was always in effect without tracking the gun owners. With a proper No-Fault system the victim would not have to even be told the name of the owner to collect compensation. All transactions by claimants or the government would be with the insurance companies.

Recommended Posts:

Firearms and the History of Workers’ Compensation

This is the first of a series of posts which are designed to show that workers’ compensation systems, insurance and laws are an excellent–the best that we have–model for dealing with gun violence victim compensation and for reducing that victimization.

A little over one hundred years ago, our country faced a crisis that was quite similar to the gun violence problem that we now face.  Industrial and work related accidents were completely out of hand, producing deaths and injuries that reached almost every family.  Looking back on my own family history, a great uncle on my fathers side was killed and my mothers grandfather lost an arm–both in railroad accidents of that era.  It’s mostly forgotten today but it was a great issue at the beginning of the twentieth century.

An important right and freedom for individuals was threatened at the time.  It was the freedom of persons to contract for the sale of their time and services.  Today that right is usually examined critically only when employers abuse the relationship; but then we had more recently emerged from times of indentured servitude and outright chattel slavery.  Freedom to contract ones labor and services as one wanted was a great step forward; but did it include the freedom to sell ones body to the possibility of death and injury?

Direct regulation of the specific dangers of various activities and practices had a role to play at that time as it does today around firearms.  Many laws in critical industries such as mining and railroads were passed in the first decade of the new century.  Some established new agencies such as the Bureau of Mines in 1910; others regulated dangerous practices including the 1908 Ash Pan Act which prohibited locomotives which required workers to go underneath to empty ashes.  Today with firearms, we have many regulations and prohibitions including limitations on machineguns and weapon possession by felons and other dangerous persons.  Direct control of dangers by legislation reduces the harm by a substantial and fortunate factor but leaves a large and unsatisfactory remainder.

In both of our cases, the reason for the inadequacy of specific regulations is similar.  The dangers are of many kinds, they are spread through a huge economy, they change constantly with new technology, and few want the involvement or expense of government inspectors in every detail of activities.   A more flexible path to safety is and was needed; an economic path where the actors had a self-interest in safety.

The nineteenth century way to provide an incentive for reducing injury is through lawsuits.  Tort liability law was the way to make employers responsible in 1900 and remains the way we make gun owners responsible today.  Injured workers or their survivors usually received no benefit from this system.  The cost and burden of proving an employer negligent was too much; and the employer was allowed devastating arguments in defense such as worker’s assumption of risk, fault of co-workers or the injured worker’s own contribution to the negligence.  The contribution to safety of this system was also small; it was cheaper for employers to stonewall injured workers than to install safety practices or equipment.

One stream of improvement is to make it easier for workers to be awarded damages.  Some states made changes in tort liability laws for this end and limited the defenses that employers could use to deny responsibility.  We can and probably should adopt measures today for firearms to ease establishment of tort liability.  For example, we could assume negligence in cases of accidental discharge or projectiles striking unintended targets.  This would be similar to our, now customary, assumption of fault for a car hitting another vehicle from behind. But tort law is at best a very incomplete solution to problems of widespread injury.  Long before it is made strict enough to seriously protect victims, employers of yesteryear or gun owners of today would feel an excessive fear of lawsuits.   A synthesis and a compromise of the interests of victims with those of employers or of gun owners is needed.

A hundred years ago many people ranging from advocates such as Crystal Eastman to politicians including President Theodore Roosevelt worked to solve this problem.  An amazing compromise for workers emerged which is taken for granted today.   Workers in most cases gave up their rights to sue employers for unlimited damages, but employers were required to buy insurance that protected employees from work related injuries without consideration of fault.  This compromise is famous and is called “The Workers’ Compensation Bargain.”

The next post in this series will look at the bargain and how it could be applied to firearms.

Cars v. Guns about Mandatory Insurance

Many people, when asked about the possibility of requiring insurance that would protect victims of gun violence, compare guns to automobiles; and, knowing that we require drivers to have insurance, think that it’s a reasonable thing to do with guns.  It is a reasonable thing; but there are both similarities and differences.

Gun proponents, who often view compulsory insurance as simply an interference with rights they consider to be absolute, tend to offer a number of relatively unimportant differences by asserting things such as  “car insurance isn’t required on private property or unless the car is being driven.”  This isn’t always true; but, more importantly, it has little to do with how to handle a reasonable requirement for gun insurance.

The big difference is the way that we treat responsibility about the two classes of possessions and the politics of that responsibility.  People are used to car owners being responsible for their cars and expressing that responsibility through liability and insurance.  Gun proponents have worked to deflect responsibility away from owners and suppliers of guns and onto gun users; and then from gun users onto victims who can be perceived as responsible for their own injuries when the gun user thinks, rightly or wrongly, that shooting is justified.

The purpose of this post is to point out the similarities and differences that have substantial consequences in the design of appropriate insurance.

Similarities between Cars and Guns

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Comments on a Blog Post about Mandating Gun Insurance

It’s hard to get thoughtful responses to the ideas published on this blog.  Most comments are from people who simply assert their, usually negative, conclusions.  When I get a response such as The Truth About Maryland’s recent post “Mandatory gun insurance: an interesting smart idea that won’t really work. A primer, from a finance and insurance geek,” I welcome the chance to look for new information or approaches to the problem of dealing with gun deaths and injuries.  Insurance is a tool and gun injuries are a problem that to be addressed by that tool require that it be specifically adapted to the problem.  For example, the parallels between automobiles and guns are striking because both are widely used instrumentalities that result in a substantial amount of death and injury; but this blog outlines differences in the best implementations of insurance.

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Amar Kaleka for Congress with Gun Insurance in Platform

Amar Kaleka is a candidate for Congress from Wisconsin running for the seat now occupied by Paul Ryan.  He is the son of one of the persons killed by a Neo Nazi white extremist at the Sikh Temple in Oak Creek Wisconsin on August 5, 2012.  He has gun safety as a key issue in his platform.  Of particular interest to this blog is the third point on the “American Peace Plan for Gun Responsibility.”

3. Mandatory accidental discharge insurance on all gun sales and ammo.  When there is an accidental discharge and someone is harmed or victimized by an irresponsible gun owner, the burden of fiscal responsibility is left in limbo.  Private insurance carriers have the ability to determine the gun buyer’s biography, health, and criminal record.  Insurance companies and the market would decide reasonable premiums based on the type of gun purchased, carrying in public, or what type of training or the expertise of the gun owner.  The Federal government does not have this ability.

 

The announcement was made on August 30, 2014 in Santa Monica, CA with Richard Martinez, father of 2014 Santa Barbara shooting victim Christopher Michaels-Martinez; and Patricia Maisch, survivor of the 2011 Tucson, Arizona shooting.  It was picked up by Insurance News Net.

Limiting the mandate to accidental discharge makes the coverage much more narrow than the insurance advocated by this blog, but it is in line with many plans introduced in several states.  The argument that any insurance will cause insurers to take an interest in gun owners level of responsibility is probably a reasonable start.  The actual number of cases that insurers would have to pay would be small enough that it would end up being a very affordable coverage and is probably already covered by most homeowners insurance.

The fact that mandatory (but not so easily voluntary) insurance can cover intentional and criminal acts is not recognized; but in light of the widespread disinformation spread by insurers, it can be handled more effectively in full legislative hearing process than in an election campaign.

The point that insurers can do evaluations that the Federal government cannot is a good one.  The “Top Down” system advocated by this blog is based on that idea with a method of guaranteeing insurance for all guns without general governmental gun registration.

Gun Insurance Blog salutes Amar Kaleka for his courage and foresight in placing gun insurance in his platform in a clear and open manner.

How Should DC React to the New Gun Carry Decision?

The District of Columbia is scrambling to react to a Federal District Court decision that threatens to invalidate the ban on carrying guns for self-defense in DC.  The current law in accordance with the direct decision by the Supreme Court in Heller v. DC forbids carrying guns outside the home except by certain classes of armed professionals.  There has been a 90 day suspension of the application of this decision for an appeal which could be used to enact legislation which allows registration for that purpose.  If DC is required to allow individuals to carry guns in public there are various options in regulating such carrying that are in accordance with the recommendations of this blog.

They should certainly increase the level of responsibility that gun owners have if their guns result in injury.  They can pass provisions in the Municipal Code which are parallel to the specific requirements that give motorists a duty not to follow so closely as to strike other vehicles in the rear and a duty not to strike pedestrians in crosswalks.   There should be provisions in the DC Code to establish a duty, with a presumption of negligence if not followed, to avoid the following:

  • Allowing a gun to make an unintentional discharge.
  • Allowing a gunshot to strike an unintentional target or a person not intended to be shot.
  • Allowing a gun to get into the hands of an underage person or a person prohibited from possessing firearms.

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Precursors to Gun Insurance

Ideally, we should adopt a system of insurance that protects and compensates all of the victims of gun violence as a single well thought-out package.  The various terms would weight the balance between minimizing the interference with responsible peoples use of firearms and the need to keep them away from irresponsible people.  There are many factors that should work together to give the best overall results.  But, that isn’t the way that most systems of control and regulation are developed.  They come about incrementally.  Even before we adopt any requirements for ordinary gun owners and users to be covered by insurance, there are are changes that could set the state.  Insurance is a means of maintaining a system and culture of responsibility.  Keeping and use of firearms, unlike any other activity in our society, has accrued a large number of provisions, legal and of other kinds, to promote a culture of irresponsibility.  If this is rolled back in stages, use of insurance will emerge as a natural step.  It will be so because it will be a way of facilitating the responsible use of firearms in a context of demanded responsibility.

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Is Self-Defense Insurance Legal in California?

The National Rifle Association (NRA) and several other companies or organizations sell or sponsor the sale of insurance to defend and indemnify gun owners from liability in self defense situations.  They do this on a nationwide basis and promise protection in a wide range of situations where the purpose of the gun use is to defend ones person or property.  The point of this insurance is to have no restriction against covering self-defense as an intentional or willful act.  The question raised in this post is: How can this be possible under California’s Insurance Code?

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How Would Insurers Stop Straw Purchases?

One of the main feeders into the pool of illegal guns that cause a large portion of the deaths and injuries is those guns that are obtained through straw purchases.  A straw purchase is one that is done by a person with a clean record that can pass a background check to obtain a gun for a prohibited person.  For the purposes of this writing straw purchases are distinguished from other channels for guns to enter dangerous hands including:

  • Unchecked sales or gifts after the initial purchase
  • Theft of guns
  • Previously owned guns by persons who subsequently become prohibited persons
  • Guns used by persons who are not prohibited from having guns but who are clearly dangerous in hindsight

Straw purchases are the primary input to the “Iron Pipeline” which is the name that New York gives to the practice of buying guns in low regulation states such as Virginia and illegally smuggling them into New York for sale to prohibited persons.  The hate killing by a white supremacist in Kansas City in April, 2014 was with a straw purchased weapon.

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The Question of Pricing Mandatory Gun Insurance

In addition to policy arguments such as those against putting costs and responsibilities on the public or burdens on gun owners, the insurance industry has offered two major substantive arguments against mandating gun insurance.  The first, which is the claim that insurance does not and cannot cover, intentional or criminal arguments is simply false.  This has been extensively explored by this blog at the post entitled  “Gun Insurance for Willful, Intentional & Criminal Acts.”  The second argument is basically a “Chicken and Egg” objection.  They claim that insurers have no experience to price such insurance and that without ratings experience such insurance cannot be sold.  This post is to show the reasons that this objection is of greatly diminished importance in the case of mandatory gun insurance.

Why can’t insurers simply add up the losses that are occurring as they are reported by emergency rooms, as part of claims for various other kinds of insurance, media reports and government statistics and assign them different weights in an estimate?  The basic reason is that, with voluntary insurance, the people who will actually buy the insurance are not a representative sample of the risk exposed public.  Sometimes that works for the insurers advantage because people can buy insurance because they are more than typically responsible in many ways and produce fewer than average claims.  But those who know that they have an elevated risk can buy insurance for that reason as well. Continue reading