February 01, 1996 Policy

Civil Remedies for Victims of Gun Violence

96M8

American Bar Association

Alameda County Bar Association
Bar Association of San Francisco
Steering Committee on Unmet Legal Needs of Children
Commission on Domestic Violence
Tort and Insurance Practice Section
Coordinating Committee on Gun Violence

Recommendation

RESOLVED, That the American Bar Association supports the right of the victims of gun violence to seek private redress, and supports legislation to:

1. Amend the Gun Control Act of 1968 to provide a private cause of action, with concurrent state and federal jurisdiction, for those persons sustaining injury or damage as a result of violation of the Act;

2. Adopt and extend state and territorial laws to provide civil claims for relief for those persons sustaining injury or damage as a result of the violation of state, territorial or municipal laws regulating the use, sale, possession, license, ownership, or control of firearms and ammunition.

Report

At the February 1994 Midyear Meeting in Kansas City, Missouri, the House of Delegates approved a resolution, presented by the Task Force on Gun Violence, which reaffirmed the Association's policies of almost thirty years to support regulation of the use and sale of firearms in the interest of public safety and societal order. The House of Delegates instructed the Task Force to report policy recommendations further addressing the problem of gun violence, noting that the Association had last conducted a comprehensive review of the problem and recommended policy solutions in 1975. The Task Force conducted such a review and submitted its Report in 1994. The Report contained various Recommendations intended to prevent and reduce gun violence, and many of those recommendations were adopted by the House in August 1994. A recommendation similar to that proposed herein was originally part of the proposed recommendation brought before the House of Delegates for consideration at the August 1994 Annual Meeting. However, it was withdrawn by the sponsors in response to concerns of the Tort and Insurance Practice Section for further study.

In November 1995, the Board of Governors acted to create the Coordinating Committee on Gun Violence, to provide ongoing coordination and leadership of Association efforts to implement ABA policy on gun violence. The Committee now recommends the adoption of the foregoing resolution, with the support and cosponsorship of the Tort and Insurance Practice Section.

The Gun Control Act of 1968

The Gun Control Act of 1968 invested the Bureau of Alcohol, Tobacco & Firearms ("ATF") with authority relating to the possession, sale and transfer or firearms to and from individuals. Due primarily to budget restrictions, however, ATF does not have the resources to adequately enforce the provisions of the Gun Control Act of 1968. Simply put, ATF does not have the personnel or financial resources to effectively enforce the provisions of the Gun Control Act. This conclusion has been repeatedly expressed by representatives of the Department of Justice who have testified before Congress that ATF has not been provided even a fraction of the resources necessary to rigorously enforce the Act.

Congress has frequently amended the Gun Control Act of 1968, 18 U.S.C. §922, et seq. The Supreme Court has quoted from the Act's legislative history to support the proposition that the purpose of the statute was to keep "firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." Huddleston v. United States, 415 U.S. 814, 824-825 (1974). Indeed, the Supreme Court quoted S. Rep. No. 1501 90th Cong., 2d Sess. 22 (1968) as follows:
 

Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S. Rep. No. 1097 9th Cong., 2d Sess. 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.

Further legislative history quoted in Huddleston follows:

Title IV of the Omnibus Gun Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed [dealers] in an attempt to halt mail-order and interstate consumer traffic of these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§922(a) (1) and 923 (a); he is required to keep records of 'sale ... or other disposition' §923(g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, §924.
'… Information drawn from records kept by dealers was a prime guarantee of the Acts' effectiveness; in keeping these lethal weapons out of the hands of the criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow.' 114 Cong. Rec. 13219 (1968) ...
 

See also, K-Mart Enterprises of Florida, Inc. v. Keller, 439 So.2d 283, 286 (Fla. App. 1983); Decker v. Gibson Products Co. of Albany, Inc., 679 Fed.2d 212, 215 (11th Cir, 1982).

The Gun Control Act of 1968 prohibits defined unlawful acts which principally target the importer, manufacturer, and dealer in weapons, all of whom are required to be licensed. 18 U.S.C. §922. In many respects, however, the statute focuses on the licensed seller. It is illegal for the licensed seller to place the weapon in the hands of someone under twenty-one (unless weapon is a shotgun or rifle and the person is not less than eighteen). 18 U.S.C. §922(b)(1). It is unlawful to sell or deliver a firearm to any person in any state where such purchase or possession would be in violation of any state law. 18 U.S.C. 922(b)(2). It is, of course, unlawful for any licensee to sell or dispose of a firearm to anyone who he has reasonable cause to believe is under indictment or who has been convicted of a crime punishable by imprisonment exceeding one year, a fugitive from justice, an unlawful user of, or addicted to, any controlled substance, one who has been adjudicated a mental defective or committed to any mental institution, an illegal alien, one discharged from the armed forces under dishonorable conditions, one who has renounced his U.S. citizenship, or one who is under court order to restrain from harassing or stalking. 18.U.S.C. §922(d).

The statute makes certain conduct illegal for the licensed importer, licensed manufacturer or licensed dealer and also makes It illegal for the purchaser to make any false or fictitious oral or written statement or representation. Further, the statute makes It unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding a year, a fugitive. an unlawful drug user. a mental defective, an illegal alien, a dishonorable dischargee of the armed forces, a person who has renounced his U.S. citizenship, or is subject to a court order that restrains such person from harassing or stalking, to ship in interstate commerce, or possess in or affecting interstate commerce. any firearm or ammunition. 18 U.S.C. §922(g).

It is clear that although the statute was enacted to curtail the transport of firearms and ammunition to those who are under age, criminals or incompetent, the criminal provisions set out in 18 U.S.C. §1984 have not been wholly effective in regulating this conduct.

Various courts have wrestled with efforts to assert tort claims under this statute. Most cases have not found that the federal statute provides a priority right of action although most concluded that the federal statute may be used to establish a duty of care under state law and frequently find negligence per se under state law. See K-Mart Enterprises v. Seller. 439 So2d 283 (Fla. App. 1983); Kalina v. K-Mart Corp., 1993 W.L. 307630 (Conn. P. Supr.); Decker v. Gibson Products Co. of Albany, Inc., 679 Fed.2d. 212 (11th Cir. 1982). At the other extreme is a minority position which finds not only the absence of a private right of action under a federal law but also that violation of the federal statute does not create a duty on a seller in a negligence action. Hulsman v. Hemmeter Development Corp., 647 P2d 713 (Haw. 1982). Addilionally, issues arise such as proximate cause and whether a criminal shooting committed by a gun purchaser is an independent intervening act that breaks the causal connection between the seller’s negligence and the injury actually caused. See K-Mart Enterprises v. Seller, 439 So.2d 283,287 (Fla. 1983) ("One who gives matches to a pyromaniac can hardly claim that It could not be exactly foreseen what or whom he might harm ...') and Robinson v. Howard Bros., Inc., 372 So2d. 1074 (Miss. 1979) (sale to minor in violation of 18 U.S.C. §922(b)(1) without previous criminal record would not, nevertheless, make the seller of the weapon liable for an intentional criminal act viewed as an independent intervening cause).

State and Municipal Laws

As  set forth in the original report of the Task Force, the number of persons killed each year, the number of persons injured, those who lose loved ones and financial support, and the staggering societal cost of gun violence, all justify the traditional remedies through our tort law that we make available to those who suffer losses in other areas of public concern. Consequently, state and municipal laws regulating firearms should similarly provide for private civil causes of action for victims of gun violence to compensate their losses.

Conclusion

Beginning in 1965, and on seven occasions since, the Association has adopted policy to strengthen federal and state laws governing sale, possession, transfer and ownership of firearms. As noted in the report accompanying the comprehensive recommenda1ion adopted in August 1994, the resources to vigorously enforce gun laws have been insufficient for a variety of reasons. The mounting societal cost and very large number of persons affected by gun violence argue strongly for amendments to gun laws to clearly provide for the right of victims of gun violence to pursue civil remedies under traditional principles of tort law.

Respectfully submitted,

Edward E. Kallgren, Chair
Coordinating Committee on Gun Violence

Walter H. Beckham III, Chair
Tort and Insurance Practice Section

Christopher L Griffin, Co-Chair
Commission on Domestic Violence

Marna S. Tucker, Co-Chair
Commission on Domestic Violence

Catherine J. Ross, Chair
Steering Committee on Unmet Legal Needs of Children