Gun Shop & Gun Maker Agree to $2.5million Settlement over Snipers
I posted a lengthy response to a comment I received on this, and decided to republish the post...
YES! News reports say that Bull's Eye Shooter Supply of Tacoma agreed to pay $2 million to survivors and families of victims of the notorious Washington, DC snipers (John Allen Muhammad and Lee Boyd Malvo). Gun maker Bushmaster Firearms Inc. of Windham, Maine, will pay $500,000. It apparently marks the first time a gun maker has agreed to pay such a settlement. This is real progress in the march toward having gun prices reflect their true "cost" more accurately. Up to now the social cost of murder victims was externalized onto nonusers. If the idea catches on, gun makers and shops will start insuring against the liability, and pass the cost of the premiums through to buyers; buyers will then be paying a more realistic price for the product instead of getting a susbidy from innocent bystanders. Read my comments for more explanation....
YES! News reports say that Bull's Eye Shooter Supply of Tacoma agreed to pay $2 million to survivors and families of victims of the notorious Washington, DC snipers (John Allen Muhammad and Lee Boyd Malvo). Gun maker Bushmaster Firearms Inc. of Windham, Maine, will pay $500,000. It apparently marks the first time a gun maker has agreed to pay such a settlement. This is real progress in the march toward having gun prices reflect their true "cost" more accurately. Up to now the social cost of murder victims was externalized onto nonusers. If the idea catches on, gun makers and shops will start insuring against the liability, and pass the cost of the premiums through to buyers; buyers will then be paying a more realistic price for the product instead of getting a susbidy from innocent bystanders. Read my comments for more explanation....
Comments
Well, I probably won't convince you to change your position on guns, and you are equally unlikely to shake my conviction that guns are from the devil. But for the sake of my impressionable law students who are hopefully reading this, I will walk through the logic a little more...
Everything I do, or at least everything I buy and use - involves costs for others. Simple example: my car. Me driving a car imposes costs on everyone else because of the added pollution, consumption of scarce fuels, increased traffic on the road (or diminished space on the road), and the increased likelihood of traffic fatalities. Each of these areas is the source of ongoing debate about whether my purchase costs reflect the "true" cost to the society overall. SOMEBODY has to pay to clean up my road kill or to dispose of the used oil. Regarding the cost of the increased fatalities, most states require by law that I purchase liability insurance if I want legal permission to drive my car on the street. Besides the cost of my car and gasoline, I have to pay GEICO a few hundred a month so I can drive legally. And so it should be: we have these laws because people were getting killed by irresponsible, freedom loving drivers who either could not pay for the harm to the victims.
But here's where we get to your argument: the fact is, a LOT of my insurance cost (perhaps almost all of it) is really subsidizing the less-careful drivers covered by my insurer. I use GEICO, which is supposedly very selective (and hence, if I qualify because I have a spotless driving record, my insurance premiums are lower), but nonetheless GEICO determines the amount of my premiums by its need to cover potential payouts - which are much more likely to happen with other drivers than with me. But that is the system, and there is no way around it with insurance. And insurance is part of the reason our society is economically viable: we pool our risks and make losses less devastating.
Back to guns. They are no different than cars. We all know that if we allow people to drive cars, there will be a certain number of reckless people who cause injuries and fatalities- we cannot prevent this. Similarly, apart from the fact that I believe guns are inherently evil because their sole purpose is to kill people, we must admit that the availability of guns in our society makes it inevitable that a certain number of hot-heads, "gangstas," people who drink alcohol, and marginal nutcases are going to use them to kill people like Dimebag the guitar player. It is a social cost of the product, just like every other product.
The fact that you have guns automatically imposes costs on me, even if you are indeed law-abiding and nice. I have to live every day with the fear that some hot-head, alcoholic, gangster, or nutcase is going to get his hands on your guns - or the guns held out for sale for you at the gun shop - and kill me, my spouse, or one of my four children. Or my boss, or my students, or my friends. Or a guitarist named Dimebag. Gun owners may not care, but I care, and it costs me something. I will have to move to a more expensive, safer neighborhood. I won't park my car in certain places in the city. I won't let my kids go to certain places after dark. And so on. I have to adjust my life for someone else's hobby.
And it is a hobby that has no social value, as far as I can see. Guns are designed to shoot people. If nobody had guns, no one would need them for self-defense, either. They are a net loss for society, a complete waste of resources. At most their value is something like model cars or collectible Barbie dolls. Something other people enjoy but really contribute nothing to the world, compared to the spent resources poured into them.
We could insure against the potential harms from guns by using a model like we do for cars: require every gun owner to carry liability insurance for anybody who gets injured or killed with their toy. But this would be infeasible, because guns are too easy to conceal. Cars on the road are hard to hide, and routine traffic stops almost always involve a request to see an insurance card or certificate. It is pretty easy to make sure that nobody drives without being insured. It is impossible to make sure people don't tote firearms without insurance.
So we switch the model a little bit, and make the gun shops and gun makers carry insurance. This accomplishes the EXACT SAME THING, because they will simply pass the cost through to the buyers. So the buyers are still basically buying insurance for the rest of us in exchange for them getting to have their dangerous toys. It is fair. Now there is some recourse for the innocent bystander who never agreed to subsidize his neighbor's dangerous gun hobby.
Affixing liability to such companies basically means they will go get insurance for this kinds of loss. They will pass the cost through to the law-abiding citizens who feel that strange urge to have a toy designed to kill people.
I take exception to the use of the verb "are," as in "are liable." If they pay a settlement, that is liability in practice. They paid. That is what liability means. Perhaps they "shouldn't" be liable (probably what was meant by the word choice), but people "are liable" whenever the courts say they are - or they themselves say they are by paying a settlement. Settlements are liabilities.
Have you ever actually examined the facts surrounding firearms ownership in the United States, particularly as constrasted to our no-longer-free older sibling in freedom, the United Kingdom, or are you simply reacting emotionally to a liberal article of faith (gun = evil)?
I would love to be confronted with actual facts from a liberal on the topic of firearms and a free society - might you be the first person in many, many years to provide those facts? Or are you merely repeating words you heard from Rosie O'Donnel.
I do like your point, however, about the distinction between privileges and rights. That is an important distinction in law, especially some of the subjects I teach. And the example of driving is particularly interesting. Driving is clearly a privilege, but there is some Supreme Court precedent indicating that mobility and freedom to travel state-to-state are, in fact, inviolable Constitutional rights- actually, the Court has defended this right more zealously than most others, it seems to me. The cases are not about car ownership or driver’s licenses, however, but instead focus on states and municipalities have registration requirements for out-of-town visitors, or waiting periods for newcomers to avail themselves of otherwise normal citizens’ rights (government benefits, certain licenses, etc.). The Court has traditionally disfavored these two types of restrictions pretty strongly, because of their chilling effect on the mobility of the citizenry.
Similarly, these are the two types of restrictions most often applied to gun ownership: local registration requirements and waiting periods. They do not seem to work very well. These restrictions seem to burden law-abiding citizens almost exclusively. Yet to my knowledge have not been successfully attacked on Constitutional grounds. I think perhaps they could be, drawing the analogy to the right-to-travel cases. I think letting a jury decide about tort liability is fairer, and more protective of people’s rights, than command-and-control regulation.
There is a Constitutional right to have firearms, and I believe this cannot be easily ignored. But there is no Constitutional right to mass-produce or sell firearms, at least in the Constitution I’ve read. It only talks about the right to bear (own, possess, use) arms. This is another reason I think we should affix liability on gun makers and dealers; it honors the rights of individual citizens to own them, focusing the liability instead on parties who have no such right at stake. I recognize that gunners could simply get their weapons from overseas if American-made ones were subject to too much costly liability. Importation is also costly, and the Constitutional clearly allows the government to regulate or restrict imports in any way it wants.
I also think everyone agrees, even the gun-rights folks, that the Constitution does not give you the right to have any kind of weapon or gun you want. We do not allow citizens to have nuclear or biological weapons, for example, even if they make them themselves in their basement. I don’t think anyone has a problem with this. The point is, however, that we already draw lines at some point, based on some sort of political consensus, about which weapons are covered under the Second Amendment and which ones are not. To take the Second Amendment strictly, it only guarantees the right to have the “arms” that were available at the time (late 1700’s), which certainly excludes automatics and semi-automatics. In fact, I doubt that the framers could have conceived of a gun that did not require tedious reloading between every shot, and I am not sure they would have approved of the citizenry even toting revolvers. From the innocent victim’s standpoint, a Revolutionary-era musket gave me the opportunity to get away if the assailant missed on the first shot, or merely wounded me. The hassle of reloading and carrying around heavy lead projectiles also gave gun owners an incentive not to waste their ammo on innocent bystanders. I think these are significant differences. Modern guns make it much easier to kill the wrong people, too quickly. I know that as a society we have not drawn the line at the historical-linguistic definition of “arms” in the Second Amendment, but we certainly could- and I think it would make more sense than arbitrarily drawing lines like we do now. These modern weapons bring high social costs and seem to offer little social value in return (besides their ability to kill whoever gets in the line of fire).
Regarding where I get my “facts,” I have read More Guns, Less Crime, which I thought was well-argued but misnamed. The book seems to be about “concealed weapons” laws, not about the pure number of guns being manufactured and sold. I do not disagree with Lott’s point about the downside of concealed weapons restrictions. I also peruse, from time to time, the website of gun-rights advocates, because I find them interesting, and I have even read several issues of Ted Nugent’s magazine, out of curiosity. Regarding the “facts” you want to hear from “us,” I think the overheated tone of Ted’s magazine, as well as many of the gunners’ websites and their postings on people’s Blogs, is a “fact” some of us find informative on this debate.
(An aside: When I was a little kid, we lived in Whitmore Lake, Michigan, and my parents owned the little house next door and rented it to a guy named Stanley. Stanley had kids my age, so I played over there a lot. Stanley was some sort of roadie or sound guy for a lot of the upcoming rock bands, so the house was always full of shaggy hippies (this was the early 70’s), usually friendly folks, including a guy named Ted Nugent and a guy named Bob Seger. Recently I saw issues of Ted’s magazine at the gym, remembered my childhood memories, and read it with interest).
I do not claim to everything about gun rights, or even a lot. I have, however, listened (and continue to listen) to the arguments of gun advocates. I “get it” that the Second Amendment allows gun ownership, but it does not make the firearms trade somehow “sacred” or immune from tort liability, any more than any other industry. Incidentally, I also think the tobacco companies should be liable for the huge social costs of their products, as should alcohol producers, fast-food chains, etc. Litigation allows a more efficient means of eliminating social nuisances in these cases than bureaucratic regulations; the results are more likely to mirror a properly functioning free market, where the profiteer’s costs are not externalized on unwilling bystanders.
That said, I'd like to focus on some of your observations. I'm inclined to agree with you that the court system seems to want to protect personal mobility (automobile ownership and use) more than firearms ownership. That actually is a source of distress for me. I'd be happier if the courts would spend at least as much time protecting the rights that the founders actually wrote down as they do protecting the rights that the courts have discovered in latter days.
To put the second amendment in context, you should remember that the muskets to which you refer were the high-tech military weapons of the era. The "Brown Bess" smooth bore musket was used by the British and the colonial rebels precisely because of its high rate of fire, as compared to contemporary rifled firearms. It was the assault rifle of the day.
The Bushmaster is a scary-looking rifle with a large magazine, essentially inspired by the M-16, but what Muhammad and Malvo did was not spray a crowd with a high rate of fire, but take single, aimed shots. They might as well have used a single-shot muzzle loader. If they had used a Ruger No. 1 (single-shot) hunting rifle, would you have advocated penalizing Ruger for the criminal misuse of a product they manufactured? Muhammad and Malvo chose a Chevrolet Caprice for their gun platform. Will we also penalize General Motors for the same criminal misuse?
Turning to public policy, I'd like to suggest some probable results of your desire to increase the cost of firearms ownership to individual firearms owners. One, obviously, would be to price less advantaged citizens, disproportionately minority, out of the market. Is it actually a benefit to society that only rich white people can exercise their second amendment rights? And if it is, might we not leverage the benefit by seeking out other rights we can reserve for the well-to-do? I acknowledge that the ruthless laws of economics already have some similar effect, but my understanding thus far has been that officers of the court seek to ameliorate that effect, not exacerbate it.
The second, by design, would be to reduce the number of people who own firearms, by the economic mechanism just described. Since privately owned firearms are used more often (by a large multiplier, 10 to 1 or more) defensively, rather than offensively, would it not follow that, as firearms ownership decreases, the overall cost to society increases? That without even factoring in the obvious observation that criminal misuse of firearms will largely be unaffected by any policy decisions society makes with regard to its law-abiding citizens.
As I think through my concerns, I think they center on your notion that securing individual rights is the responsibility of the individuals exercising them. If people have only the rights they can secure for themselves, isn't that anarchy, rather than society? By this theory, do I have the authority to deny someone else a constitutional right because I'm stronger, or richer? Isn't the purpose of a society founded on law to secure for its individual members the rights the society guarantees them? If the answer to those questions is "no," I'm afraid I wasted a lot of years in the Army, when I should have been focusing on taking care of myself, instead.
As an aside, I understand your reaction to the heated rhetoric on "my" side of the issue. I do not exaggerate when I say that those of us second amendment advocates who are politically aware identify this issue as a key civil rights issue. We feel much the same emotion that permeated the earlier civil rights movement in the second half of the twentieth century. Emotion blocks logic, but how can one arbitrarily deprived of a civil right not be emotional?
There is much, much more to say, but having graded 100 Criminal Law finals, you're probably not up to more argument just now.
Perhaps we can agree to pray, each of us, for the other's enlightment, and for the other's continuing freedom.
You raise an interesting counterpoint about the guns of the Revolution being the "state of the art" at the time, and I will have to mull that over. (And you know way more about antique firearms than I do). You also raise a great point about the sniper killings being single-shot hits that could have been done with a Revolutionary-era gun.
I understand your point about liability rules pricing the poor out of the market, and this comes up the in comments about my posting on Ellberg's Paradox as well. And you anticipated my counterpoint that the wealthy always have more opportunities to exercise their constitutional rights than do the poor - that's one result when capitalism and democracy are wedded together, I guess. I'm not that concerned, though, with the poor having less access to guns than the wealthy. If we have a goal of allowing as many law-abiding citizens as possible to have whatever guns they want, while at the same time having the minimum number possible get in the hands of criminals (some sort of balance like this seems to be a reasonable goal, at least), then maybe having the rich be disproportionate among gun owners is a necessary evil. The poor (here is a fact) are MUCH more likely to be the victims of crime, including theft, than the rich. The guns poor people own are much more likely to end up in the hands of people who misuse them than the guns of the rich, therefore. (I haven't seen any statistics about this, I admit, I am hypothesizing). I know the counter-argument to this is that the poor need guns more for self-defense, as they are more oftent he victims of crime. That is a good point, for which I do not have a great answer, except that I don't think it is a determinative point. Our legal system strongly disfavors self-help, especially if it involves violence, and encourages reliance on the proper authorities for security and protection.
I also think you raise a valid point that the vast majority of gun use is legitimate rather than illigitimate. That is a great answer to outright gun prohibition, but may actually be an argument in favor of assigning some tort liability to gun makers and dealers, because they know a very small percentage of their products are used for criminal activities (but have horrendous consequences when they are), allowing them to spread the costs of insuring against liability across a very diffuse pool. The greater the ratio of good to bad use (that you refer to), the less onerous it will be to pool the social costs of the occasional tragedies.
By the way, I would be almost as happy if the gun makers instead decided to chip in voluntarily to a victim's fund, or to have a model similar to worker's comp (where employers pay in all the time so there is money available for injured employees), in exchange for being exempt from regular tort liability. The workers' comp system, according to empirical studies, has done a lot more to encourage workplace safety than OSHA regulations have. Employers get to have lower worker's comp contribution payments if they have fewer accidents in their workplace, so companies have an incentive to think of ways on their own to improve worker safety. I suspect that gun manufacturers and dealers are in a better position to find ways to ensure their products are safe, are distributed safely, etc., than are private individuals. If gun makers, for example, have a financial incentive to make sure their products are not used to kill innocent bystanders, they are more likely to develop and market products that are easy to trace, have embedded computer chips that record the date and time they were fired (like the hidden "black boxes" installed in cars now), have safety locks, and so on. Dealers are in a unique position in the distribution chain (and are already forced to help customers fill out license application forms, etc.) and a financial incentive to avoid distributing weapons down the wrong path might bring some benefit that we cannot otherwise obtain. Just thoughts. I appreciate your comments. And I again admit that I know less about guns than I do about liability rules and administrative law problems.
That's probably too long a way to say that more often than not, a dealer has little impact on where a weapon goes or how it's used.
That said, your oservation is probably accurate that those who most need the ability to protect themselves have that need precisely because they have limited means and live in unpleasant, if not actually dangerous, circumstances. That problem has solutions too, but they are substantially farther reaching than the firearms ownership issue.
That does lead me to the paradox in your comment, though. I agree with your observation that the legal system (as a distinct entity from the citizens who, in theory, own it, and whom, in theory, it serves) frowns on self-help. It does not do so out of any sincere conviction that it can do a better job of protecting citizens than the citizens can do, nor indeed with any intent of doing so. It protects itself with immunity for any of its failures, and you are in the best position of all to know of court cases in which different courts have held in different ways that the legal system exists to protect society, not individual citizens, and individual citizens whose reliance on the legal system proves to be misplaced, to their serious harm, have no recourse in tort or anywhere else. It would be a different matter if the social compact were that in exchange for my electing not to pursue self-help, the legal system would provide me at least as good protection as I can provide myself, but that is not the case. The legal system has said explicitly that, whether I effect self-help or not, the only services the system guarantees are cleaning up the crime scene after the fact, and making a half-hearted attempt to find out "who dun it." Sometimes you may get better that that, but don't count on it. I hope I may be forgiven for thinking that a bad trade.
Most defensive use of firearms, by the way, does not involve discharge. Most of the time, merely announcing or demonstrating the presence of a weapon puts an early end to criminal activity. Knowledge of the risk of encountering an armed home owner deters even the beginning of criminal activity.
England has finally reached what I believe to be the desired end state of the anti-gunners in this country: private possession of firearms effectively banned, and the common-law right of self-defense repealed. If a crime victim defends himself, his self-defense itself is a crime. The predictable result is a continued increase in violent crime and a rate of so-called "hot" burglaries, those committed while the residents are home, several times what it is in the United States. Burglars in England don't have to worry about encountering an armed homeowner, or even a homeowner prepared to defend himself with a golf club. In fact, in an excellent example of the social cost of unintended consequences, since the house is more likely to be unlocked, and any security system disarmed, when occupied, the current situation in England encourages hot burglaries. David Kopel has a good treatment of this at 43 AZLR 345 (Lawyers, Guns, and Burglars, Arizona Law Review, 2001.)
There are serious policy issues here, and serious consequences to real people for getting the answers wrong. Given the great social good private ownership of firearms does, including protection of citizens, protection of property, reduction of burden on the legal system (via crime prevention), the relatively minor social cost in terms of unintended injuries (fewer than 800 accidental deaths in 2001, compared to over 43,000 from automobile accidents and almost 4,000 drownings), and the complete lack of impact on crime experienced by the various attempts at socially engineering firearms ownership, I really find it difficult to understand an objection based on logic.
Pauline, you mention a social cost that firearms owners impose on non-owners. I will assume you see that cost as stemming from predictable criminal misuse of firearms. That is, I will assume that if I shoot a deer, or use my (legally licensed) concealed handgun to scare a mugger away from a little old lady, those won't add to your social cost. However, the fact that you expect the costs of the exercise of that second amendment right to be borne by those who exercise it, suggests to me that you don't believe that either you or the hypothetical little old lady receive any benefit from others' exercise of that right.
You know, that first amendment puts people in a position where they can say whatever they want to without any consideration of the social cost. I think it's predictable in those circumstances that there will be misuse and abuse, with significant social cost. CNN admitted to falsifying news out of Iraq for almost 12 years, their motive being corporate prestige and profits. CNN was also caught falsifying news reports about Viet Nam (Tailwind.) So have CBS and the New York Times (most recently, the forged memos.) The examples go on, and on. I don't think we ought to have to bear the cost of their exercising their first amendment rights. After all, there's no benefit to us, quite the contrary. Suppose we go sue them, and get a money penalty imposed for their falsehoods.
Of course, that's already been tried, and it didn't work. Subjecting what people do with their first amendment rights to too much scrutiny would have a chilling effect on the exercise of those rights.
Why does the legal system have so much respect for the first amendment, and so little respect for the second?
My biggest concern with Professor Stevenson’s argument is that it presumes that efficiency is the highest concern of public policy. While efficiency is a desirable goal, our democratic system sacrifices efficiency in exchange for rights and liberties. The Constitution is rife with inefficiency: an authoritarian dictator could react more swiftly, decisively and consistently than a periodically reelected Congress; warrantless searches helps speed police work; the protection against self incrimination increases type two error; and allowing fifty different state legal systems decreases overall efficiency. A streamlined process is efficient, but due process is complicated, time consuming and inefficient. I would argue that the only time an efficient system should be implemented is when that system comports with our system of rights and justice.
My principle argument against extending liability to gun manufacturers is that it creates liability without fault. The only means of recovering (as far as I can figure out) would be a products liability suit. In order for such a claim to succeed, the plaintiff would have to prove that the guns are defectively designed and that the defect caused the injury. The defect that would need to be alleged is that the gun was manufactured without (using Professor Stevenson’s examples) electronic black boxes or trigger locks. What a plaintiff could not prove (or even truthfully allege) is that the lack of such devices caused their injuries: the black box would only be useful to police investigators, and thus only after the gun is used in a crime (it would also be largely unnecessary, given the advances in ballistic fingerprinting); the lack of a lock would prevent a child accidentally shooting himself, though an enterprising drug dealer could probably defeat the lock on his own gun (or forcibly remove it from a stolen gun).
If a plaintiff cannot prove that some design defect of a gun caused the injury, they would have to argue that a gun itself is a defective product and there mere fact that it is capable of causing death confers liability to its manufacturers. Under such circumstances, the manufacturer would be strictly liable for the criminal predilections of anyone who manages to obtain a gun. Such a system would be a serious departure from any other tort recovery; a manufacturer could be held liable after a plaintiff proves only that a criminal chose to commit a violent felony using a gun made by the defendant. There need not be wrongful conduct on the part of the manufacturer, as the manufacturer is the sacrificial lamb for society. I realize that the attempt to spread the cost to the gun owners, but the judgments are being legally entered against the manufacturers, and corporations are entitled to the same due process rights as individuals in tort cases.
Going to root public policy concerns, I cannot see that it is fairer to shift the risk of an insolvent defendant to a large corporation simply because it is a large corporation. I will agree with Professor Stevenson that, in a perfect world, innocent bystanders should not be required bear the cost of their injury. Where I disagree is how one defines “innocent.” I would define an innocent party as one that is without fault in causing an injury, a definition I hope is not terribly controversial. I see a gun manufacturer as being just as innocent as the victim, as neither caused the actual harm; to require a gun manufacturer to pay still requires an innocent party to suffer the harm from the criminal acts of another. I know this is somewhat hyperbolic, but shifting the government shifting costs (through the courts or otherwise) to an innocent party simply because it is more able to pay is a soft form of communism; the courts feel sorry for the innocent plaintiff without a recovery, so it inflicts the same harm the plaintiff suffered on another innocent party for the reason that it has enough money to repay the plaintiff.
Stevenson argues that law abiding gun owners impose a cost on society, though he defends the point by noting that a criminal could steal the gun and commit a crime. This argument would be persuasive if the use of a stolen gun were the only way a criminal could harm a victim. People who own cars, knives and baseball bats all create the risk that they could become stolen and used in the commission of a crime; the fact that the contemplated wrongdoer commits a previous theft followed by a later crime involving a gun shows that the person is already a threat and will probably mug someone with some other weapon. Granted an attack will likely be less deadly, though I doubt the difference between being fatally shot and non-fatally stabbed is enough to pack up the family and move to Pasadena or south east Houston (believe me, I’ll be gone as soon as I can be).
It is argued that the corporation does not actually suffer the harm, as it can shift the costs to its consumers. This still results in harming an innocent party in two ways. First of all, spreading the cost requires a rise in prices; this shifts the demand curve and results in several additional problems. Most directly, the manufacturer loses sales and profit. The manufacturer therefore suffers a harm the cost of which it cannot spread. Beyond that, consumers who would have wished to have bought a gun cannot, thus hurting an innocent party (the prospective gun buyer). The second and related harm to innocent parties is that those who buy guns must pay for the criminal acts of others. You say that this is done all of the time with car insurance, as good drivers must subsidize the victims of bad drivers. Where the analogy breaks down is that the insurance companies spread the cost of negligent accidents, though Allstate won’t pay a judgment against me if I intentionally run someone over.