Suing Government for Reducing Public Safety: A Lawsuit That's Time has Come

Commentary by H. Sterling Burnett

Recently the mayors of Philadelphia and Chicago, Edward Rendell and Richard Daley, have threatened to sue gun manufacturers to recover costs related to firearm violence in their cities. Their argument rests on two premises: (1) guns are a public nuisance and(2) gun manufacturers knowingly flood cities with more guns than they could expect to sell to law-abiding citizens, thus aiding and abetting criminals in obtaining firearms. Therefore, the mayors argue, the public health and safety costs associated with treating and preventing firearm injuries should be reimbursed to the city by the firearm industry.

Meanwhile Gov. Rohmer of Colorado, as well as a couple of other governors, have vetoed legislation that would allow more law abiding citizens to carry concealed firearms.

Though these actions may have been undertaken with the best of intentions - reducing gun violence by further limiting the availability of guns - they are misguided and make the public less safe. If it succeeds, this lawsuit will establish bad law and bad public policy. However, a different kind of lawsuit might just have the positive effect of reducing crime.

It would establish bad law because it ask the courts to legislate. In a multitude of similar lawsuits, courts have consistently held that questions concerning whether firearms should be legal and widely available are for legislative assemblies to decide. In addition, the suit would reverse well-established tort law: manufacturers are not responsible for the criminal misuse of their products. Should automobile makers be held responsible for vehicular homicides committed by drunken drivers or people in the grip of road rage? Criminals also use knives, prescription drugs and household products to commit crimes, should courts hold the manufacturers of these products at fault? If gun makers are held liable when criminals misuse guns, where will the lawsuit parade end.

The actions of the mayors and governors are also bad public policy. Why? Because guns prevent more harm than they cause. Studies have shown that criminals fear armed citizens far more than police. Their fear is reasonable since nearly 3,000 criminals are lawfully killed each year by armed civilians - more than three times the number killed by the police. An additional 9,000 to 17,000 are criminals are wounded by civilians each year. In addition, more than 15 studies have shown that citizens use guns in self-defense between 800,000 and 3.6 million times annually (in the vast majority of cases merely showing the firearm wards off the attack or prevents the crime). Award-winning criminologists Gary Kleck and Mark Gertz estimated that defensive gun uses (DGUs) totaled more than 2.5 million per year. Another study sponsored by the National Institute of Justice and carried out by the Police Foundation found an even greater number of DGUs - approximately 2.73 million a year. Either figure is far larger than the number of crimes committed with firearms each year. Thus the savings to society from the crimes prevented is much greater than the cost to society of firearm violence.

In addition, a recent study by economists John Lott and David Mustard examining the impact of concealed carry permits found that:

  • Concealed handgun laws reduce murder by 8.5 percent, rape by 5 percent and severe assault by 7 percent.
  • Had liberalized concealed-carry laws prevailed throughout the country in any given year, there would have been 1,600 fewer murders, 4,200 fewer rapes and 60,000 fewer severe assaults.

However, not every city or state has seen the drop in crime that has accompanied the liberalization of concealed carry laws. States like Illinois forbid the concealed carrying of firearms; they have double the murder rate and a 20 percent higher rape rate than states with liberal concealed carry laws. States like Colorado which allow concealed carry but allow local officials the discretion to issue a concealed carry permit to individuals have issued relatively few carry permits. These states suffer a 30 percent higher murder rate and a 19 percent higher incidence of rape than states with more liberal laws.

And then there's the curious case of Philadelphia, where the idea for a lawsuit against gun manufacturers first arose. Mayor Rendell points out that while murder and other violent crime rates are declining in many cities, they are still on the rise in Philadelphia, despite the fact that Pennsylvania liberalized its concealed carry law in 1989. But city officials have no one but themselves to blame since Philadelphia demanded and received an exemption from the liberalized concealed carry law. While citizens in other parts of Pennsylvania have the option of legally defending themselves with concealed firearms, criminals know Philadelphians cannot carry firearms legally. The predictable result is that violent crime has decreased in other parts of Pennsylvania, while it continues to increase in Philadelphia.

Lott's study confirms something policy analysts have long suspected. First, the increased risk or cost associated with crime due to liberalized gun laws discourage some violent criminals from committing further crimes. However, other offenders either shift their criminal activities to areas where citizens are known to be less able to effectively defend themselves (like Philadelphia) or shift the types of crimes they commit away from crimes of force like armed robbery to crimes of stealth like burglary where the likelihood of confronting an armed victim is minimized.

Rather than conceding that guns in the hands of law-abiding citizens deter crime supporters of gun-control argue that citizens do not need guns for self-defense. After all "that's what we have the police for." But the reality is that at any one time, there are only about 75,000 to 80,000 police on the streets to protect more than 260 million people - which is why police primarily investigate crimes after they occur rather than prevent them. In addition, the courts have consistently ruled in favor of the government that the police are not obligated to protect individuals, but only to maintain "public order and safety." Therefore, people's best security against crime is their own willingness to defend themselves. And research supports the view that the best defense against violence is an armed response. For example, women faced with assault are 2.5 times less likely to suffer serious injury if they respond with a firearm rather than by trying to defend themselves with less effective weapons or by offering no resistance at all.

This brings us to the lawsuit that I am proposing. The government is not legally obligated to protect individuals, but the courts have determined that it is instituted to secure public order and safety. And, absent the rise of an unacceptable police-state with an officer in every household, the police are not physically capable of protecting every citizen even if they were obligated to do so. The actions of Mayor Rendell, Mayor Daley and Governor Rohmer, among others, reduce public safety, and indeed aid and abet criminals in their nefarious pursuits by restricting guns which have been shown to be particularly effective as both a personal defense against, and as a general deterrent to, crime.

Therefore, the general public might join with crime victims in a class action suit; suing the public officials whose actions make them less secure and increase crime rates in general. Guns don't increase crime, foolish policies do, and those that institute them should be held accountable. Under the common law, when private citizens take actions which threaten the public's health or welfare courts can enjoin the action and require compensation for those who have been harmed. Public officials should be held to the same standard, if not a higher one.

In contrast to the lawsuits considered by Rendell and Daley, the lawsuit proposed here might make the public safer - but it would be unlikely to succeed. As a rule public officials may not be sued for their legislative and administrative actions. If adopting bad policies were a legally actionable offense, government would grind to a halt and the justice system would collapse under the weight of lawsuits. In addition, federal, state and city government have "sovereign immunity," or are exempt from lawsuits unless they specifically waive the privilege. Does that mean that a lawsuit brought by citizen-victims left defenseless by ill-conceived gun laws would be wasted effort? No. Such a lawsuit would serve notice to government bureaucrats that the public is tired of hollow gun contol laws that do nothing to prevent criminals from getting guns or reduce crime but place the public at risk. It would force the mayors and governors being sued to at least consider placing real public safety concerns above their personal biases against an armed citizenry and their dislike of the prospect of the reduced need for high-dollar, big-government crime programs.