Wednesday, June 15, 2016

Negligent Entrustment? Gee, tell that to the Kalamazoo bicyclists

Patrick O'Grady sent me an article about a lawsuit currently wending its way through a Connecticut court, arising from the Newtown mass shooting. Timely, since we have had yet another, yet worse one in Orlando. The idea being pursued is that, according to the quote in the article, it is Negligent Entrustment to sell so called assault rifles to the public. The idea of negligent entrustment in this scenerio is: "...a gun is carelessly given or sold to a person posing a high risk of misusing it....". The plaintiffs want to expand on the idea and substitute the American public for "a person" and say the public as a whole has a high risk of misusing these rifles.

The technical legal question is way outside my expertise as a geologist, but I am skeptical. Besides, this is a bike blog, not a law journal. My skepticism of the Newtown lawsuit as far as the negligent entrustment angle is several-fold. One, the Feds have not banned it, so it is a lawful product sold to the public. Two, Connecticut approved the ownership of these guns and indeed, licensed Nancy Lanza to have it, so the state has some responsibility in authorizing its sale to the public. Three, Nancy was not necessarily negligent. Adam Lanza shot his mother dead and stole it. Four, statistically, there are millions out there and the number misused, in geochemical parliance, is in the low parts per million. Its hard to rationalize from that the idea that the average owner is at high risk of misusing it. Wonder how that compares to motor vehicles?  Finally, the Protection of Lawful Commerce in Arms Act blocks these suits under most circumstances.

My guess is there are probably more motor vehicles used negligently in part because they are used constantly and not considered by their owners as particularly dangerous devices. Two multiple killings of bicyclists this year point to the dangers of their misuse, one happened in Kalamazoo that killed five and one in Tucson that killed two, including a Santa Fe Seniors on Bikes rider. So if Newtown is the gun manufacturer's fault, why isn't Kalamazoo the auto industry's fault? Where does corporate responsibility end and ours begin?  I go back to the Porsche analogy I used the other day: just because I once bought a car that can do 162 mph, it doesn't mean it is Ferry Porsche's fault if I do 162 mph in a school zone.

 I saw those shitty advertisements used by Bushmaster for "getting your man card", something mentioned in the Times article, but as a board member of the Bicycle Coalition of New Mexico, I once got into a metaphorical firefight with Bicycling Magazine over their running an ad for a Nissan (or might have been Acura) product that said buying that car was a way to express one's aggression on the road. Just what we bicyclists need: more aggressive drivers and more bad ads. Its not clear to me whether lousy advertising trumps individual responsibility, but we sure do see enough of those "closed course, don't try this at home" ads and so far, no one I know has sued a car company using the negligent entrustment idea.

PLCAA, the law that protects gun manufacturers when individuals misuse guns, is Federal law. This case is currently in state court. Not sure what that means, but suspect an appeal would be a no-brainer if this gets much farther.

Black rifles, like Porsches, are a lot of fun, as Adam Winkler said in an NPR piece, but the public assumes the risks as well as any public benefit. Orlando is the risk. That said, any car or gun, even a workhorse pickup truck or revolver, can be misused with devastating results.  As Winkler said in the article, more mass shootings are done with handguns, as is the overwhelming amount of gun crime carried out in the US. Still, as I commented to O'Grady this morning, the AR makes someone a pretty damn effective killing machine, which in the military context, is exactly the idea. Thomas Friedman makes a good case for technological lethality outrunning human social instruments of peaceful existence in today's NY Times. We cannot afford potentially highly efficient killing machines in our midst if they are going to suddenly go off the rails. I've said what I want to say on assault rifles before, in this piece, excerpted here:

"...if lunatics continue to use (assault rifles) to deliver high velocity carnage to schools, theatres, and fire departments, some sort of regulation is inevitable on public safety grounds (and is likely permissible under Heller). Constitutional issues aside, we let just about everyone drive (and some do a bad job of it, leading to more than 30,000 traffic deaths a year). We don't let everybody drive a Freightliner..."

It is wise to carefully craft anti-violence policies rather than push ham-handed/one size fits all solutions, as sociologist Andrew Papachristos points out (and here) and as his academic work suggests. But there are so many guns and cars out there that periodic accidental or purposeful mishaps, even on a grand scale, are inevitable, barring a Vision Zero approach to both. Hence calls to further regulate both of them, and strong pushback from both owner's groups, whether it be background checks and "assault weapons" bans or red light cameras and traffic calming.

I ran into one of my colleagues yesterday as I rode my bike to the chemistry building. She is gay, as was my brother in law and as were several of our geoscience Ph.D. students at the Univ. of Hawaii who I supervised, both as a mentor and for a while as chair of our graduate studies committee. Looked at my colleague and thought about Orlando and got the shakes. Adam Winkler is right--we need to use all the tools at our disposal to stop this shit. We just have to make sure we do it right rather than ham-handedly, which is more often the knee-jerk case.

I just wish we could get the public to hold motorists to the same standard. Seems that right now, the only form of mass butchery that is treated as "just another day in the USA" is killing by automobile. We kill about a hundred people per day on the roads: that is two Orlandos. If this suit succeeds, I think the car industry needs to start thinking about a Protection of Lawful Commerce in Cars Act. Conversely, maybe we all ought to read Friedman's piece and realize that we are inside the bubble, and a lot of people are senselessly dying because of it. Orlando was an obvious atrocity. Our roads are less obvious.

And now, from Streetsblog:

What Gun Violence and Traffic Violence Have in Common

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