THE BLOG

Do Expanding Numbers of Guns and Permits Mean We Need Expanded Liability Laws?

02/18/2014 04:00 pm ET | Updated Apr 20, 2014

We have now had two massively publicized cases where Florida's Stand Your Ground law has worked to prevent an effective deterrent for the outright killing of unarmed young persons. The planting and suggestion of the idea that now is the time for vigilantes does more damage to a civil society than even the loss of justice for the grieving families of the victims.  Because the facts of incidents must be investigated, discovered and proven to a high standard of proof for criminal prosecution to succeed, that prosecution is most effective as a backup to an effective program of prevention. 

The major tool that is used to prevent gun injuries is keeping guns out of the hands of inappropriate persons.  The implementation of policies to that end is very incomplete because of the loopholes, such as allowing sales that are not background checked, that have been placed by gun proponents.  If these loopholes were fixed and the conduits that allow the flow of guns from legal to illegal hands were stopped then we would eliminate the larger part of our gun violence problem.  But even then a substantial number of injuries and killings would continue to plague our society.  These incidents involving legal gun owners can be seen at any gun violence tracking website such as Joe Nocera's The Gun Report.

It's not possible to accurately predict the persons who will eventually use a gun to create harm whether through accident or malice.  It is especially difficult if the prediction has to be made by  identifying explicit factors and then using them to deny rights and privileges. We're seeing more and more cases in the national news where people are being shot by gun owners who are apparently responsible people prior to the incident making national news.  These include more than the so-called self-defense cases above but  also a growing number of domestic violence incidents and, on an almost daily basis, murder-suicides.

We have the threat of sanctions as the way to reduce the damage that is done by the ever growing pool of guns.  Criminal sanctions are not working for this purpose because most legal gun owners simply don't consider that they might turn out to be criminals after a tragic incident.  They do seem to have a concern, perhaps an irrational concern but a real one, about being sued for the damage they are involved in.  Effective civil and financial responsibility can go a long way to help with our gun violence problem, but our laws need to be adjusted to fit the realities of the problem.

Florida's 'Stand Your Ground' law has a civil as well as a criminal component to it.  It states "A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . ."  The full extent of this immunity has not been tested in the courts but it likely includes cases where the shooter was negligent and may even include cases where bystanders are shot.  Removing this civil immunity and allowing negligent shooters to be held responsible would be a great help. 

Another useful step is to have laws that create a duty of care establishing a presumption of negligence in certain situations that lead to unnecessary shootings, accidental and otherwise. There are provisions in the laws of almost every state that make clear that certain kinds of incidents with motor vehicles establish a presumption of fault.  For cars, these include striking a vehicle from the rear and hitting a pedestrian in a crosswalk.  For guns, the situations might be:

  • Letting a gun be taken, used or handled by an underage or prohibited person.
  • Allowing an unintended discharge.
  • Firing a gun and hitting a person not intended as a target.

The provisions in the motor vehicle codes of various states are straightforward and simple and provisions for guns could be easily added to criminal codes.

The majority of states have established strict liability for dogs that bite.  For example, the law in Florida provides:

767.04 Dog owner's liability for damages to persons bitten.--The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness.

There are many similarities between dogs and guns that make the adoption of such a rule for guns seem appropriate.  Both have potentials for creating injury that is sudden and unpredictable from the viewpoint of potential victims.  Both have enhanced dangers when mishandled or allowed to escape the control of their owners.  The reasons for having a different law in the two cases is primarily political.  Both dog and gun owners are passionate about their possessions, but only gun owners have an organized resistance to responsibility.  We need responsibility in both cases. The responsibility of gun owners should continue after guns are taken by others whether family members or thieves at least until they are reported as stolen to authorities and probably thereafter. 

Real responsibility for guns would include a requirement for insurance to compensate victims. If that insurance is based on gun owner liability and fault then proper laws to establish liability are necessary.  These need to be designed in a way to promote safe practices and so that innocent victims can be compensated.  If insurers pay for accidents, they would demand safety and if they pay for the damage done by stolen guns they would demand safe storage.

It gets down to gun control--not gun control as not allowing people to have guns and not gun control as being able to hit the target--but gun control by gun owners in not allowing their guns to injure or kill or get into the hands of those who would do so.  The only thing politically more difficult that taking guns away is demanding responsibility for guns, but that is the task at hand.