Liability Law As A Part of Gun Policy Reform

February 25, 2018 12:39 p.m.

Let me share an idea I’ve had about the gun issue for many years. It’s not a panacea. But I think it’s a key part of any future in which we deal with guns in a way that is realistic and responsible. A number of years ago gun control activists tried a strategy to make gun manufacturers liable for the impact (literal and figurative) of their products. This approach shared some strategic similarities with what anti-smoking activists had done earlier. The gun lobby shut the whole thing down and that was the end of it. But I’m not sure it was the best approach in any case. It was less an effort to change behavior than drive gun manufacturers out of business. But there’s a different way to think about civil and criminal liability and guns.

We use legal liability to shape behavior and assign responsibility in numerous aspects of human interaction. In many respects, it is a conservative approach in that it seeks to shape behavior by properly assigning responsibility. One of the key elements of properly functioning economic activity and even human activity is that the primary actor takes some responsibility (liability) for the potential negative externalities of their behavior.

Let’s break this down from technical terms to real world examples.

It didn’t used to be this way. But nowadays if you own a bar and you send someone home drunk out of their mind and they get in a car and kill someone, you’re partly responsible for that – civilly and maybe criminally. You own a bar. You’re in the business of serving people alcohol. To a degree, you’re in the business of getting people drunk. Such liability isn’t simply a just approach from the perspective of the vehicular homicide victim, it’s society saying you need to assume some responsibility for what can be the predictable negative consequences of your activity.

In some areas the aim is to set prices correctly. If a factory makes tons of money in part by pouring toxic waste into the local river, the society is actually subsidizing that private enterprise. They are privatizing the profit and socializing the risk – or in this case, having society pick up the tab for the negative consequence of the commercial activity. Because the factory gets the profit and the society picks up a lot of the costs tied to clean up, medical bills and everything else that follows in the wake of toxic waste in the local river. In other cases, you’re attempting to shape behavior. Usually it’s both.

Let’s try to apply this to guns.

Guns are inherently dangerous. That’s obvious. That’s the point. A key problem in our society is that the people who own guns or are in the gun business have very little liability for the negative externalities of gun ownership.

Let’s assume two things for the sake of this conversation: 1) People will continue to be able to own guns for self-defense, hunting and just the general joy people get blowing the shit out of things. 2) We’re talking about a legal regime that is not aimed at making gun ownership impossible or impractical. We’re talking about a regime aimed at requiring owners and merchants to assume greater responsibility for their participation in an inherently dangerous activity. (Again, I’m not saying other goals aren’t possible or even more desirable. I’m just explaining what might be done in such a framework.)

To accomplish this I think you need to construct a framework of safe harbor provisions. Let’s say you sell a gun. One approach would be that if you the merchant check these five boxes, you are free of liability for the future use of the gun. So background check, no strong reason to believe you’re selling to a straw purchaser, etc. The particulars aren’t really the point for the purposes of this post. Someone more familiar with the particulars of firearms sales would be better positioned to write the rules. The key is to assign some responsibility to gun sellers for the use of the guns they sell (and give teeth to that assignment of responsibility with civil or criminal liability) but also to provide a framework of safe harbors so you provide clarity about how merchants can realistically manage and limit their risk.

This exists partially with the background check system. But that doesn’t apply to all purchase. And even if it did, it’s not sufficient to place a major onus on gun sellers for their inherent risks tied to their commerce.

Say you’re selling your AR-15 privately. If you don’t check any of those boxes, you’re potentially on the line for what happens with it. Too much risk? Well, you go into a local gun shop, pay the gun shop a fee, they run the checks. If you check the boxes, you can sell your gun knowing you’ve washed your hands of responsibility for what happens with it.

Let’s take another example. You own a bunch of guns. Someone steals one of your guns and kills a bunch of people. Or maybe your disturbed son takes your gun and shoots up a school. One potential approach might be this. If you kept your gun in an industry standard gun safe, you’re protected from civil or criminal liability. But if it was just under the bed, you may be on the line for what happened to it. This is entirely reasonable from a societal point of view and that of any responsible gun owner. You’re owning guns. Guns kill people. If you’re going to own guns you need to take certain steps to ensure they’re not used to injure people. If you don’t, all bets are off if something goes wrong. You may owe money damages or serve time in prison.

A final example. It is well known that lots of guns are purchased and then ‘stolen’, where stolen is a catch-all euphemism for sold on the black market or to people who can’t legally buy guns. I’m not sure precisely how you’d structure liability in these cases. But surely there are ways to assign liability for people who keep getting guns ‘stolen’ in this way.

This is certainly no panacea. And some of what I’m describing already exists in a limited, fragmentary way. But I think it is a critical part of a different approach to firearms policy which accepts that there will be a widespread private ownership while also fundamentally shifting the level of responsibility gun owners and merchants must assume for the dangers inherent in gun ownership as well as balancing private gun ownership with public safety. As I’ve written recently, the current framework is one in which the right to own any kind of gun in any quantity with any amount of ammunition anywhere and at any time is the highest societal value and trumps everything else.

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