demagogue on 11/10/2017 at 11:25
I said it in my last post, but bears repeating. If a chair manufacturer is liable for somebody standing on a chair (an expected misuse) and it breaking on them and they break their back, then gun manufacturers should be liable for somebody foreseeably misusing their weapon to cause injury and not taking steps to prevent such expected misuse.
It's not like the exploding Coke bottle cases where they know one in a hundred million Coke bottles will explode and injure someone, but it's not reasonable to hold them liable since you can't make bottles that can't explode that aren't outrageously expensive vis-a-vis the added benefit, as long as you took some precautions to make it very very unlikely and you don't know exactly which one will explode. But in this case, gun manufactuerers know with absolutely certainty that X% (not a small number) of their weapons will end up illegitimately killing someone by entirely expected misuse, and they still put them out into the market. If they aren't going to be made illegal, they should pay for the damages.
heywood on 11/10/2017 at 15:46
Quote Posted by demagogue
I said it in my last post, but bears repeating. If a chair manufacturer is liable for somebody standing on a chair (an expected misuse) and it breaking on them and they break their back, then gun manufacturers should be liable for somebody foreseeably misusing their weapon to cause injury and not taking steps to prevent such expected misuse.
It's not like the exploding Coke bottle cases where they know one in a hundred million Coke bottles will explode and injure someone, but it's not reasonable to hold them liable since you can't make bottles that can't explode that aren't outrageously expensive vis-a-vis the added benefit, as long as you took some precautions to make it very very unlikely and you don't know exactly which one will explode. But in this case, gun manufactuerers know with absolutely certainty that X% (not a small number) of their weapons will end up illegitimately killing someone by entirely expected misuse, and they still put them out into the market. If they aren't going to be made illegal, they should pay for the damages.
The chair manufacturer has the ability to design a chair such that it doesn't break when somebody stands on it (up to a certain weight anyway). The gun manufacturer has no ability to control where the gun is pointed.
If a gun has a design defect that causes a malfunction e.g. it fires when the safety is on or it breaks and injures the holder, then I think you would have a reason to hold the manufacturer liable.
But your suggestion is like holding auto manufacturers liable every time a drunk driver hits somebody.
jkcerda on 11/10/2017 at 15:53
EXACTLY.
demagogue on 11/10/2017 at 16:18
A dynamite or toxic waste or nuclear plant producer also can't control dynamite being exploded or toxic waste oozes and causes illness or a nuclear plant melts down, but they are still strictly liable for any and all harm because they are inherently dangerous items, even if there's (certain types of) intervention, some criminal group that breaks in and causes the harm. The producer might still have to pay.
For the car manufacturer, that's a great case study to compare the differences. The actual answer in tort theory ... well there are a few things. Judges won't find manufacturers liable even though cars create a lot of known death and destruction because the cost/benefit ration is much too low for strict liability (the social benefit of cars way way outweighs the social cost of harm, which you can't say for dynamite, toxic waste or arguably guns), also people are presumed to consent to the risks of cars by living in modern society in a way they don't consent to exposure to dynamite, toxic waste, or getting shot at. I should back up and say strict liability only applies to items where the social cost is way more than the social benefit; and if you don't have that, normal liability rules apply (you have to show the maker was negligent in causing the harm).
So specifically on the issue of strict liability, which is the claim here, it comes down to cost/benefit. Strict liability theory means you don't have to show negligence on behalf of the producer when harm happens because it's an inherently dangerous item with way more social cost than social benefit. For car makers, because the social benefit is so high, the makers will really need to do something very negligent that causes drunk drivers to hit people to be found liable. The argument is guns would be a strict liability category, so you don't have to show negligence.
What we really need to talk about is the intersection of strict liability theory with intervening negligent/criminal intention. An intervening actor like a criminal or drunk person in the car case, and the suicide case, criminal, and non-careful user (gun accidents) for guns in normal tort theory supersede liability since one party can't be responsible for an intervening actor's behavior, like your car example. But it doesn't always apply to strict liability. If somebody steals a vat of toxic waste and dumps it in a city, the makers might still be responsible because it's strict liability. In the case of nuclear discharge, they do make an allowance for acts of war, an armed force deliberately attacks a nuclear plant to cause damage, but I don't think that applies to humdrum criminals. The nuclear plant makers are going to have to pay because they need to do more than just be "not negligent"; they'll need to pay for any harm from a meltdown as long as it can be proven to have been caused by that meltdown.
The other missing piece is that guns are designed to shoot to kill living things, which doesn't apply to cars or even the other typical strict liability cases (toxic waste, nuclear meltdowns, dynamite).
There's an article on the argument for strict liability for gun makers that makes the case better than I am here. In that article, it boils down to the fact that the social cost of gun production is much higher than the social benefit, so it should count as a strict liability category under tort theory. So you'd have to get into the technicalities of tort theory for each piece.
Edit: Another piece is the fact that gun-deaths are a negative externality. One purpose of tort theory is to internalize social cost into the market. Guns cause social harm. If it's put into the price of the gun, then the market is paying for that cost, the same way that environmental harm is put into the cost of widgets when its factory drops sludge into a river to make it, through liability. If guns can't pay for that social harm, then it means guns cause more social harm than social good and the market is the vehicle of overall social good.
This is part of the justification for the theory of strict liability for extremely hazardous items. It doesn't apply to just any product, but only extremely hazardous ones where the negative externality is a special problem.
Edit2: Putting things into context, these tort theories -- strict liability & extremely hazardous liability -- were made in the 90s and early 2000s and courts weren't receptive to them, so I understand plaintiffs aren't going to bet on them these days. But it's not quite as clear cut as the car analogy. There's something there to the theories, even if they ultimately fail so far, and thinking about the case you learn a lot about tort theory and the public policy side of it.
Starker on 11/10/2017 at 16:31
As I remember, the issue with that gunwalking scandal was more that getting guns in the hands of cartels turned out to be perfectly legal in Arizona:
Quote:
(
http://fortune.com/2012/06/27/the-truth-about-the-fast-and-furious-scandal/) http://fortune.com/2012/06/27/the-truth-about-the-fast-and-furious-scandal/
It was nearly impossible in Arizona to bring a case against a straw purchaser. The federal prosecutors there did not consider the purchase of a huge volume of guns, or their handoff to a third party, sufficient evidence to seize them. A buyer who certified that the guns were for himself, then handed them off minutes later, hadn't necessarily lied and was free to change his mind. Even if a suspect bought 10 guns that were recovered days later at a Mexican crime scene, this didn't mean the initial purchase had been illegal. To these prosecutors, the pattern proved little. Instead, agents needed to link specific evidence of intent to commit a crime to each gun they wanted to seize.
[...]
Prosecutors repeatedly rebuffed Voth's requests. After examining one suspect's garbage, agents learned he was on food stamps yet had plunked down more than $300,000 for 476 firearms in six months. Voth asked if the ATF could arrest him for fraudulently accepting public assistance when he was spending such huge sums. Prosecutor Hurley said no. In another instance, a young jobless suspect paid more than $10,000 for a 50-caliber tripod-mounted sniper rifle. According to Voth, Hurley told the agents they lacked proof that he
hadn't bought the gun for himself.
So the agents basically had no other choice but to let the guns walk in hopes of making an arrest down the line.
heywood on 11/10/2017 at 16:35
Quote Posted by catbarf
Please keep in mind that the number of defensive gun uses outweighs the number of justifiable homicides by a huge margin. The conservative number (Violence Policy Center) is 100,000 DGUs per year, the highest number I've seen (Kleck, Gertz) is over 3
million. You're right, firearms kill accidentally more than they kill justifiably. But they're used justifiably, without killing, far more often than accidents occur. Food for thought.
I would much sooner trust a biometric safe to store a handgun than a 'smart' handgun with biometric features. A biometric safe can be accessed virtually instantly, and if for whatever reason the biometrics don't work, you can use an old-fashioned key to open it. Once it's open you know the weapon is going to work. There is just too much room for error with a smartgun. Is it going to work if I have less-than-perfect grip because it's 3AM and I'm panicking? Is it going to work if I live in a humid area, or near the sea, where exposed electronics tend to degrade over time? Am I going to find that my gun is a paperweight because I slipped with the belt sander the week before and now my fingerprint isn't quite right?
I agree with you that a biometric safe is a preferred option in most cases, especially for home defense. I think there are still use cases for "smart" guns e.g. when you're temporarily storing your gun in your car maybe you wouldn't need a secure container or trigger lock if it's a "smart" gun.
As far as I know, nobody knows how many defensive gun uses actually involved firing the weapon. I'm guessing it's a very small percentage, because the number of justifiable homicides is very small.
Quote Posted by catbarf
I am 100% in favor of increasing liability when a stolen gun is used to commit a crime because it infuriates me to see people be cavalier about responsible gun storage. But, that said, a straight stolen gun = felony sounds like a strong incentive not to report stolen guns, which would hamper efforts to find them, and would also screw over the owner in the rare case of a burglar actually breaking through a safe (which sounds extreme, but does happen from time to time).
I'd rather see mandatory storage requirements, with a felony in the event that an unsecured firearm is stolen and used to commit a violent crime. Doesn't make sense to punish the people following good practice for events out of their control.
Quote Posted by Renzatic
Even I have to admit that your suggestions are a little too strict, Heywood. This shouldn't be an if/then scenario. The police have to prove negligence. You don't want to create a situation where otherwise responsible gun owners are still brought to task because someone managed to bypass all their safety measures.
Same with a stolen gun. The only time charges should be considered being pursed against a gun owner in that instance is if his gun is used to commit some random felony offense was never reported stolen. At face value, it'd look incredibly suspicious if the cops managed to trace a serial number of a weapon used back to its owner, and he responds with a "oh...yeah. It was...uh...yeah, it was stolen."
Though even then, there are chances, slim though they may be, that someone could be missing a gun, and go entirely unaware of it for months or years. It'd be pretty unlikely, sure, but still well within the realm of possibility.
To be clear, I didn't mean to imply that stolen gun = felony. What I mean is stolen unsecured gun = felony. The prosecution would still have to prove you didn't secure the weapon, e.g. because you didn't have a proper container in your home/car/wherever it was stolen from, or based on testimony from a family member, etc. The law would establish a standard for proper storage and as long as you followed that you're OK.
There would still be an incentive not to report a stolen gun if you didn't have it secured. But if the measure reduces the rate of gun theft, that is a good tradeoff. I'd rather have fewer guns stolen with a lower report rate than more guns stolen with a higher report rate.
jkcerda on 11/10/2017 at 16:37
[video=youtube;wypFgcqHyvc]https://www.youtube.com/watch?v=wypFgcqHyvc[/video]
yeah, you peeps are funny
catbarf on 11/10/2017 at 20:14
Quote Posted by demagogue
In that article, it boils down to the fact that the social cost of gun production is much higher than the social benefit, so it should count as a strict liability category under tort theory.
I don't think cars are the best comparison because, as you pointed out, cars have obvious public utility that massively outweighs their public cost. But while we're talking about drunk drivers, what about alcohol? I mean, IIRC there are something like 90,000 alcohol-related deaths per year, of which a substantial number are things like drunk driving accidents where the victim is not the person who made the decision to drink. We're talking about products that have only recreational use, so following the same logic, shouldn't we hold breweries strictly liable for liver failure and drunk driving accidents? I can see the logic behind what you're saying, but it's clearly not consistently applied as a social principle. We readily accept that intangible recreational uses can be worth a nearly six-figure death toll without holding the producers strictly liable for misuse of their products.
Part of the reason why these tort theories haven't gone beyond addressing defective products, to my understanding, is that there's no objective standard by which you can measure a product and answer these questions. You can very easily assess that a defective product which causes injury to its user has a social cost outweighing its benefits (ie it hurts someone and doesn't work), but trying to extract the same calculus from product design as a whole is a lot trickier. And a question like 'does the social utility provided by recreational shooting, collection, self-defense, and the fulfillment of the 2nd Amendment outweigh the harmful consequences of firearm ownership?' is so inherently loaded that I don't see how you could ever claim to address it objectively and set a legal standard.
Also,
Quote Posted by demagogue
The other missing piece is that guns are designed to shoot to kill living things
People say this a lot to try to provide a distinction between guns and other products, but it's always struck me as special pleading. Is the manufacturer of an Olympic target pistol less liable in a murder using their product than Glock would be? If I slip rat poison in my boss's coffee, is the manufacturer more liable than if I had used pharmaceuticals? Does an airgun sold for pest control entail more liability than an identical airgun sold for target shooting? I'm just not seeing how design intent factors into the public utility/public harm equation, it seems to be ascribing metaphysical characteristics to objects irrespective of their actual capabilities. I can't think of any industries where 'designed to kill' makes a difference in manufacturer liability.
demagogue on 11/10/2017 at 22:18
The flip side of that analogy are things like certain chemicals or equipment that are only used for explosives or equipment that's only used for nuclear devices, etc, where the manufacturer actually could be liable for distributing it to the wrong people.
As a tort that might fall under a slightly different theory, though, negligent entrustment -- negligently giving possession of a dangerous item to a person you have reason to believe will cause harm with it -- which actually has been applied for guns. If you or a seller sell or lend your gun to someone incompetent or you should know would misuse it, you could be joint liable for the harm they do with it, not strict liability, but for your negligence in entrusting it to the wrong sort of person.
There's a burden of proof angle to that. With certain things, I understand the company won't distribute it to anyone unless they show some kind of credentials (like that it's a school chemistry department or valid researcher) and the general public is presumed ineligible. Then you have background checks with guns, and you can have rules that you can only distribute to people that have passed them, where presumption is the general public would be ineligible.
Those are by regulation, but violating a regulation can be prima facie evidence for a negligent entrustment claim. So those kinds of metaphysics sort of get into liability that kind of way. You can't be liable handing an incompetent person just any tool, but you would handing them a loaded gun. You might be liable handing them the keys to your car when you have reason to believe they'll misuse it too FTM.
For true strict liability, it usually has to be something that just being in the same room with it will harm or kill people, like nuclear or toxic waste, where the property of human-killability is built into the very physical properties of the thing. Those are the types of industries where it makes a difference. But you can see why it hasn't really applied to guns, since it's not the physical properties per se that cause harm; you have to have the intervening use.
The case study to look at are things like copy machines, or the old VCR or CD copiers, or torrent apps; are they ever liable for copyright violations in copying, when they're designed to copy media, and when it's known statistically most media copied on them is copyrighted, but it's possible non-copyrighted material could sometimes also be copied? There's been something there for those cases, although I think laws get passed to create liability or some scheme, and not vanilla tort theory.
With guns, it might be relevant for different models statistically how often they're used in a socially constructive way. Makes me think of those gimmick ranges that rednecks go to with their automatic weapons to shoot up cars and explosives are planted so shit blows up and they whoop. That'd probably count as positive social utility. So I don't even know if the statistics for "virtually always criminal use" would be backed up, or what the numbers would be if you statistically broke down every shell fired from a gun between criminal and non-criminal use. If it were a really high number on the criminal-use, there's something to talk about there; but I don't know that it is.
Edit: Well if you added suicides, the numbers might be rather dim on that count. Also negligent discharge is also a regulation, and any time you have a regulation, liability can always attach to any damage coming out of it.
