About a Law Review Article on Stolen Guns

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.

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