Tort Law and Criminal Behavior (Guns)

Abstract

This article, written for the symposium on Guns, Crime and Punishment in America, analyzes the relation between tort law and criminal behavior. The analysis reveals an inconsistency that requires redress. In applying negligence doctrine, courts have expressly recognized that the threat of criminal and tort liability does not induce perfect compliance with the law. By contrast, in applying the rule of strict liability for abnormally dangerous activities, courts assume everyone acts lawfully. For reasons illustrated by the tort cases involving the manufacture and distribution of handguns, courts should eliminate the inconsistency by applying the rule of strict liability in a manner that accounts for unlawful behavior. The use of strict liability to enforce the duty of care, which is expressly rejected by the proposed Restatement Third of Torts: General Principles, is faithful to the rule of strict liability in the Restatement (Second) of Torts. Moreover, the enforcement rationale for strict liability is consistent with other rationales for strict liability, including the reciprocity rationale. The value of the enforcement rationale for strict liability is illustrated by the tort cases involving handgun manufacturers. The enforcement rationale reveals that the appropriateness of strict liability depends on how the self-defense interests of non-criminal gun owners should be weighed against the competing security interests of individuals who do not own guns and are exposed to the risk of being injured by gun-toting criminals. In an analogous context, tort law has decided in favor of self-defense. The implications of this well-established tort principle provide a persuasive rationale for not applying strict liability to the manufacture and distribution of handguns, a rationale far superior to the existing rationale that dismisses the strict liability claim on the ground that the threat of negligence liability induces all gun-toting criminals to exercise reasonable care.

JEL Classification: K13, K42