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.

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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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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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New Bill SB2646 for Gun Insurance in Illinois Covers Intentional

Illinois Majority Caucus Chairman Ira I. Silverstein has introduced a new bill (SB2656) in the Illinois General Assembly to require that gun owners have liability insurance.  This bill covers willful as well as accidental shootings by the owner or others.  It covers lost or stolen guns until they are reported.

This would be very helpful legislation if adopted as introduced and could form the basis of a more detailed and developed requirement to cover more victims.  Because it designates continued responsibility for unreported stolen guns it recognized the important of gun theft for supply to illegal gun possession.

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Should Gun Owner’s Insurance Pay Victims After Gun Theft?

The insurance model recommended by this blog is designed to have insurer retain responsibility for guns after they are stolen.  That means that if a responsible gun owner has a burglary and a gun is stolen and then after the gun changes hands, goes underground and turns up to injure someone in a distant location then the gun owner’s insurance will have to pay.  Gun defenders are quick to object and say that the burglar and the shooter are responsible and the gun owner shouldn’t be held to account for their acts.

In those cases the criminals are, of course,  responsible and if they can be caught and have resources they should be the first to pay to the injured party.  Unfortunately, they often aren’t caught and they don’t have resources and, if they go to prison for their crimes, are unlikely to earn enough in the future to redress the damage they have done.  So the question is should the legal gun owner or the gun owner’s insurance be held responsible in light of their role as enablers of this unfortunate situation.  My answer is that they should be.

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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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Gun Insurance for Willful, Intentional & Criminal Acts.

One of the things that opponents of gun insurance or insurance trade representatives often say is that insurance cannot cover intentional or criminal acts.  This is simply false.

There are many kinds of insurance that cover such acts.  The key is that the insurance pays to the victim and not the wrongdoer.  It doesn’t have to matter if the deed is done by the purchaser of the insurance or another insured person.  It is important the the policy be written to make this clear; policies that exist at least partially for the benefit of third parties typically work that way.  Insurance that is compelled by law for an activity often applies in these cases even if it’s not spelled out in the policy, but courts differ on this point and an explicit requirement in the legislation and in policy language is a good idea.

Insurance textbooks teach that whether an act is accidental or willful is determined from the viewpoint of the insured.  Mandatory insurance should treat a victim as an also insured party. This is necessary because the purpose of many kinds of insurance is to protect the insured against the willful acts of outsiders. An example would be a day care center that is negligent in screening visitors who might commit an abuse against a child.  From that viewpoint, a act that is deliberate on the part of the abuser is an accident to the victim.

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Enacting a Concealed Carry Insurance Mandate

While it would be ideal to have a gun insurance adopted at a single time as one well designed national mandate, it’s likely that political reality will force it to come into being in stages.  The logical place to start is for the more amenable states to require insurance for holders of permits to carry firearms in public.  If this can be extended to general coverage of guns in some of these states, the stage is set for a federal mandate for top-down insurance which extends into any state requiring insurance.  This in turn will encourage other states to have their own requirements in order not to have their citizens paying for insurance without their state receiving benefits for victims.

Concealed Carry as a Start and an End in Itself

Mandating gun insurance for holders of permits to carry weapons in public is much simpler than mandating gun insurance in general.  Permit holders are already registered with state government agencies; there is no need for an additional registration system.  They are generally responsible people who have already shown their willingness to cooperate with reasonable regulations.  Insurers will find these people to be desirable customers.  Most measures to deal with gun violence have to deal with the flood of illegal weapons that come from states with weak regulation of gun trafficking.  But, states requiring insurance for permits can simply refuse to recognize permits from other states without insurance requirements or require proof of insurance in addition to such a permit.

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A Progression of Kinds of Insurance for Guns

The purpose of having insurance for victims of gun violence is to provide money for the many needs they have after they suffer from a shooting. The insurance should be structured to pay in the various situations that occur, for the various needs that are faced and in a timely manner. There are lots of kinds of insurance in use today and several ones will be examined in the chapters that follow. Starting with the most basic insurance designed only to protect the buyer of the insurance, we will add features until we see that it is possible to create a system that works to provide the needed protection. We’ll start with the simplest in the progression. Continue reading