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.

Guns are unique among the common articles in our society because they are widely held in large numbers, intentionally designed and made to be effective in killing and injuring persons, and easily transferred into prohibited hands. At least 200,000 and probably twice that or more guns are stolen each year and, because they have serial numbers, do not return to legal hands. Illegal guns almost all start out as legally held ones; there are no significant reports of clandestine gun factories and smuggling across international borders goes from the US to other countries.

Common Law on the subject

There are two mechanisms of judge made law which seem to apply, but judges have not generally made a determination that they should be used for guns that are stolen.  The first is to take into account the fact that a gun is a particularly dangerous object and apply a rule of absolute liability for the harm done by this object as is often done for users of explosives and keepers of dangerous wild animals.  It’s probably not entirely coincidental that guns are powered by explosives and stolen guns injure people when they ‘get out’ into the public.  The second is to have a presumption of negligence under the doctrine of res ipsa loquitur (lit. the thing speaks for itself), the point here being that it’s fair to assume that allowing a gun to be stolen implies that there must have been some negligence.  Just because judges have not widely applied these doctrines on their own to guns does not mean that such a responsibility could not be legislated.

An example of legislation on a similar subject

An example of how this is done in other areas is provided by the dog bite laws in various states.  In California the statue says:

(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner s knowledge of such viciousness

I asked a famous dog bite lawyer in California if this would apply after the dog was stolen as was told that as far as he knew there had been no such cases in the courts. His website states that he has never seen the defense of non-ownership succeed.   In res ipsa cases theft is often taken as a sufficient intervening cause to break the chain of negligent responsibility, but that is not a universal rule.  Holding gun owners responsible after their gun gets out of their hands is a matter of policy.  This is a policy badly needed to protect the legions of victims of such guns which should be adopted by legislatures.  Insurance is the most logical mechanism to enforce this policy.

New Analysis on Guns, Insurance and the Second Amendment by Lund and Gilles.

A paper “Mandatory Liability Insurance for Firearm Owners: Design Choices and Second Amendment Limits” has been published by Nelson Lund of the George Mason U. School of Law and by Stephen G. Gilles of the Quinnipiac University School of law. While there have been simple calls for requiring gun insurance and comparisons of guns and cars at various times, Nelson Lund’s paper of 25 years ago “The Second Amendment, Political Liberty, and the Right to Self-Preservation” in the Alabama Law Review is the only serious and significant source known to this blog to address the issue prior to the Sandy Hook incident. The title of the new paper fairly describes its focus. Many issues of interest to those who want to think about the possibilities of using insurance to protect the public and compensate shooting victims are raised.

The authors of the paper are among those who believe that the Second Amendment gives individuals wide gun rights and that the narrow findings of the Heller decision only start to describe the limits of governmental regulation in this area. Others believe that Heller was the product of a momentary and ideological combination of justices which will not be expanded and will eventually fade in importance or even be overturned. The paper takes the view that, even under the broad interpretation of the Second Amendment, mandated insurance may have a role in containing gun violence. It does, however, see that role as being much more limited than does the author of this blog.

While this blog does not consider the Second Amendment as a major barrier to implementing effective gun insurance, many others do. This new academic analysis by widely respected conservative philosophers and thinkers is very valuable in laying out the nature of that objection. The paper should be read and considered carefully by anyone who is serious about understanding the possible role of insurance in dealing with America’s gun violence problem.

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North Carolina Added to States with Gun Insurance Bills

A bill HB976 has been introduced in the North Carolina Legislature.  It has several gun control provisions including $100,000 in mandatory gun liability insurance.  This insurance goes farther than in most other states by applying to willful acts and to unreported stolen guns.  The bill introduced by Rep’s Luebke, Insko, Harrison and Adams has 7 sponsors so far.  It was introduced on 4/17/13, showing that momentum to deal with gun violence is continuing and that insurance is seen as a part of the solution.  There have now been bills introduced in 9 states and the US House.

Oregon SB-758 First State Bill for Effective Gun Insurance

Senators Dingfelder and Burdick with Representative Denbrow have introduced a bill in the Oregon Legislature (SB-758) which is the first effective plan for gun insurance that would provide for victims. It works by imposing strict liability on a gun owner for injuries associated with a gun even for one year after the gun is lost or stolen. There is no limitation to economic damages as is typical of no-fault motor vehicle insurance. The limits are set quite high at $250,000 for physical injury or death. Continue reading

Workers’ Compensation Insurance and Gun Insurance

Motor vehicle insurance has been the obvious model for insurance advocated by this blog to provide for victims of gun violence. There are many parallels, especially with No-Fault versions to serving the gun situation. There is another place in our society were insurance was poorly working to protect injured persons and where society with the insurance industry has produced a system which has shown durable benefits in efficiently dealing with an important risk. Continue reading

Cars and Guns

There are many similarities between motor vehicles and guns, because they both have a built in danger but are present in our society. There are also important differences in the way they are used and the situation surrounding that use. The specific top down, no-fault system of insurance being analyzed in this blog is intended to deal with these differences.

1. The vast majority of car deaths and injuries are accidents; intentional injury with a car is rare. The majority of shootings are intentional whether or not they constitute crimes.

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Stray Guns and Stray Animals–Strict Liability

No-Fault Insurance is quite similar to the legal doctrine of strict liability.  When strict liability applies it is not necessary for the injured person to prove negligence or fault to hold a person responsible for damage from a certain cause.  It is often applied in Product Liability cases where it usually holds if the injured person can prove the product is defective, the product proximately caused the injury and the product was unreasonably dangerous.  After years of attempts to apply this to gun manufacturers where it generally did not apply because product was not found to be defective, Congress passed a law (Public Law 109-92), which among other Continue reading

Mandatory vs. Topdown Requirements for Gun Insurance

This is a quick post to remind readers that there are at least two ways to require gun owners to have insurance.

Mandatory Gun Insurance

The regulation or law could simply require every gun owner to have insurance in place on a gun.  This would be simple to mandate but it would require enforcement for every owner with all of the practical and political problems that brings.  There would be no automatic procedure to guarantee complience on transfer (legal or not) of the gun.  The probable result would be a large number of uninsured guns in circulation.

Topdown Gun Insurance

The requirement for insurance could have as part of its terms that an insurer remains responsible for injuries from a gun until responsibility is taken up by another insurer.  In that case, it would not be necessary to have enforcement measures taken for subsiquent owners.  Insurance coverage could remain in place for lost, stolen or diverted firearms greatly expanding the protection of potential injured persons.