2020 Presidential Candidates: Policies for Addressing Gun Violence

This post is second in a series aimed at identifying and exploring some of the public health issues and policies under consideration by candidates in the 2020 Presidential Election.

The goal of this series is to provide a deeper look at the ways in which candidates may or may not be including a public health framework in their healthcare reform policies, and encourage candidates to thoughtfully and purposefully develop nuanced, evidence-based, impactful policies. We also hope to inform the public as they continue to evaluate each candidate’s efforts to articulate plans that address healthcare and public health challenges in the U.S. Our goal is not endorse a particular candidate or political party; rather, our goal, as always, is to research, analyze, inform, and equip people with the knowledge they need to be engaged and thoughtful members of their communities and this nation.

By Connor Holmes

By many metrics, gun violence is an epidemic in the United States of America. With approximately 400 million firearms across the nation, in 2017 alone nearly 40,000 people were killed by guns. The American firearm homicide rate is 25 times that of comparable high-income nations, and approximately 21 children are shot every day. While mass public shootings, subsequent media coverage, and the inevitable political debates that later arise are emblazoned in the forefront of the American psyche, acts of gun violence occur in the everyday lives of many Americans, with firearm injury and death disproportionately impacting urban communities and communities of color. These alarming statistics that tell the story of gun violence in this country are frequently cited by many of the candidates vying for the Democratic presidential nomination in 2020.

Below I have aimed to synthesize the major policies put forward this campaign season by the Democratic candidates which intend to curb this epidemic, alongside the finer details which distinguish one candidate’s stance from another. For the sake of this analysis the individuals considered to be in competition for the 2020 Democratic Presidential candidacy are as follows: Senator Bernie Sanders, Senator Elizabeth Warren, former Vice President Joe Biden, Mayor Pete Buttigieg, Senator Amy Klobuchar, Tom Steyer, and former Mayor Michael Bloomberg.

BACKGROUND CHECK REFORM

Universal Background Checks:

While the government currently operates a background check system at the federal level, managed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in conjunction with the Federal Investigation Bureau (FBI), many of the candidates find the scope of this system insufficient. Approximately 1 in 5 firearms are sold or transfer ownership without the processing of a background check. Many firearm sales occurring at gun shows, over the internet, and privately between individuals beyond the confines of a registered business escape registration with the federal system, and therefore purchasers are not subject to federal approval.

All candidates support the expansion of the federal background check system to include private sales of firearms made at gun shows and online, excluding only the most intimate exchange of guns such as gifts between family members or close friends.

The “Boyfriend Loophole”:

What is commonly referred to as the “boyfriend loophole” is a gap in current legislation that bars those convicted of domestic violence from purchasing a firearm, but only if the individual is married to, lives with, or has children with the victim. Consequently, Warren, Biden, Buttigieg, Klobuchar, Steyer, and Bloomberg have committed to closing this loophole by redefining intimate partner violence under this law to include anyone with a conviction of assault or stalking regardless of relationship with the victim. Such reform would entail notification of state and federal authorities of background checks failed on the grounds of a history of domestic abuse, thus unarming domestic abusers.

The “Charleston Loophole”:

The “Charleston loophole” refers to legislation which gives the FBI a maximum of three days to perform a background check, after which a firearm sale may proceed at the discretion of the distributer. All candidates except Sanders have explicitly supported removing such a time limit.

LICENSURE AND REGULATION

Firearm Licensure System:

There is a strong desire amongst the candidates to establish a firearms licensing system, in which obtaining a license following a thorough criminal background check is required to purchase and own a gun. However, the candidates do differ in regards to the level at which such a system would be implemented and who would be tasked with managing it.

Warren proposes a licensing system that is created and operated at the federal level. Buttigieg and Steyer also support the creation of a federal licensing system, but defer to the states for implementation and management. In addition, Buttigieg specifically calls for licenses to be required to purchase ammunition.

Conversely, Biden supports a more state-centric approach in which the federal government financially incentivizes the establishment of licensing systems at the individual state level via the provision of grants. Steyer and Bloomberg additionally express support for ensuring the safe storage of firearms

Neither Sanders nor Klobuchar have outlined explicit policy proposals regarding gun licensing.

Extreme Risk Protection:

Extreme risk protection laws (also known as “red flag laws”) enable people to petition judges for an Extreme Risk Protection Order (ERPO), which temporarily bans an individual who is deemed in crisis of hurting themselves or others from acquiring a firearm. Depending on the state, the people who can request an ERPO can be broad enough to include an individual’s coworkers, or narrow enough to include only law enforcement. All of the candidates explicitly support the creation of such legislation. Warren, Buttigieg, and Bloomberg seek to enact such a law at the federal level, with Warren suggesting Congress provide grants to incentivize the further creation of similar laws at the state level. Conversely, Biden and Klobuchar intend to rely entirely on this latter technique of financial incentivization to states, allowing each state to craft their own laws without an overarching federal requirement. Sanders and Steyer, while in support of such extreme risk protection legislation, have not stipulated the logistics of how these laws would be implemented and enforced.

Restrictions on Age and Frequency of Purchase:

Warren and Bloomberg propose federal policy to mandate a minimum age of 21 to purchase any firearm, with Klobuchar supporting this adjustment of age limitations solely in regard to the purchase of assault weapons. In addition, Warren, citing that 1 of 4 firearms involved in a crime are acquired as part of a bulk purchase, proposes a federal limit of one gun purchased per month. 

Federal Ban on Assault Weapons:

All candidates support a ban on assault weapons and related paraphernalia, in line with the assault weapons ban of 1994 which was allowed to expire ten years later without renewal. The candidates unanimously call for a Congressional ban on the production and sale of assault weapons and high-capacity ammunition magazines. In addition, Warren specifies regulating accessories such as silencers and trigger cranks that serve only to increase the lethality of a weapon. Warren and Biden also propose banning the importation of such weapons, with Biden specifying legislation to halt gun manufacturers from circumventing legislation by altering products without decreasing the lethality of the weapon. In addition, all candidates support the prohibition of 3-D printed and self-assembled firearms and bump stocks. 

Refuting the concern that such a ban would entail the seizure of weapons, Sanders, Warren, Biden, and Steyer specify that the policy would call for owners of existing assault weapons to undergo a federal background check and register their firearms under the National Firearms Act. In addition, a federal buyback program would be implemented to remove as many weapons as possible from the American public.

Anti-Trafficking and Enforcement of Firearm Legislation:

Overall, the candidates call for a stronger enforcement of extant and proposed legislation aiming to control the access of firearms in the United States. Sanders, Warren, Biden, and Bloomberg place distinct emphasis on curbing “straw purchases” in which individuals able to pass a background check purchase firearms for criminals, with these candidates committing to direct law enforcement to target this practice. Further, Biden, Buttigieg, and Bloomberg highlight the need for law enforcement to follow up with weapons that are reported lost or stolen. Steyer has proposed the creation of discrete Office of Gun Violence Prevention to coordinate control and prevention measures at the federal level between the ATF, FBI, and other bureaus. Likewise, Bloomberg supports appointing an designated official within the White House cabinet to coordinate and oversee all gun violence prevention activities.

LEGISLATIVE REFORM

Combat the Gun Lobby:

Sanders, Warren, Buttigieg, and Steyer have committed to ending the immense lobbying power of the NRA and other promoters of firearms that consistently obstruct the passage of common sense gun violence prevention legislation. Buttigieg, Steyer, and Bloomberg specifically have proposed to repeal the Protection of Lawful Commerce in Arms Act, which shields the firearms industry from liability for their role in facilitating gun violence.

Taxation of Firearm Sales:

Senator Warren specifically endorses raising taxes on firearm manufacturers and importers (30% on guns, 50% on ammunitions) to financially disincentivize the purchase of weapons. She proposes using this money to fund federal programs for gun violence prevention and law enforcement.

A PUBLIC HEALTH APPROACH

Public Health Research Funding:

Following vigorous National Rifle Association (NRA) lobbying efforts, Congress has continuously cut funding and limited the scope of inquiry for federal research investigating gun violence as a public health problem. All candidates support allocating significant funds (with Biden and Buttigieg committing a minimum of $50 million) to such research headed by the Department of Health and Human Services and its subsidiaries, the National Institutes of Health and the Centers for Disease Control and Prevention.

Community-Based Prevention Efforts:

Biden, Steyer, and Bloomberg expressly commit to allocate funding for community-based gun violence and firearm safety initiatives for prevention.

Remove Firearms from Educational Settings:

Warren, Buttigieg, and Bloomberg commit to opposing legislation permitting guns on educational campuses by non-law enforcement individuals. Biden and Klobuchar distinctly intend to block federal funding to train and arm teachers with firearms.

Mental Health and Gun Violence:

Biden and Steyer commit to promoting mental health services, both in order to prevent gun violence and to support those impacted by it.

Explore Safe-Gun Technology:

Bloomberg proposes regulating guns under the Consumer Product Safety Commission to facilitate the development of novel safety technologies.

All candidate stances were sourced from their official campaign websites, accessible below:

• Senator Bernie Sanders

• Senator Elizabeth Warren

• Vice President Joe Biden

• Mayor Pete Buttigieg

• Senator Amy Klobuchar

• Tom Steyer

• Mayor Michael Bloomberg

Connor is a third year undergraduate student at Northeastern University pursuing a degree in health science, with a concentration in global health. His primary interests relate to how health systems and policy can be organized to promote equity and justice in healthcare. This is his third semester working with PHLW.

Staying in Their Lane: Health Professionals Must Address Gun Violence [from the Hastings Bioethics Forum]

by Patricia Illingworth and Matthew Wynia

In the wake of the recent Twitter fight between the National Rifle Association and U.S. physician groups over whether doctors should speak out about firearm policy issues, we argue that professionalism actually requires that doctors take a leadership role in gun policy debates, even if (in fact, especially if) doing so is politically fraught and financially harmful to them.

The recent publication of a position paper, Reducing Firearm Injuries and Deaths in the United States, by the American College of Physicians prompted the NRA to assert that physician groups should “stay in their lane” and not talk about gun policy issues. So far, the push-back against this admonition has been mostly to emphasize the terrible medical consequences of gun violence, which is appropriate. But medical groups have been mostly silent on the basics of medical ethics and what is required of them as professionals, and that’s an oversight.

Why professions matter today

Translated from Latin, the word “profession” literally means “to speak forth.” So a profession is a group of people who have come together to publicly declare – sometimes even out loud in the form of a creed or an oath – the standards and values that guide their work. This is why new doctors often recite the Hippocratic Oath, and it’s why every profession has a code of ethics. Oaths and codes are ways of speaking forth – professing – what members of the public can expect in terms of skills and attitudes from members of the group. They make up one side of a social contract, in which the members of the profession seek the trust of the public, and all the perks that come with that, in exchange for keeping the promises made in their codes and oaths.

For physicians, their main professional promise is to look out for their patients’ best interests, including putting the health of their patients before their own self-interest. That’s critical for patients, because without the assurance that physicians will always put them first, patients could not, and probably should not, rely on physicians for care when they are at their most vulnerable. For the sick, injured, or dying to place their lives in the hands of a physician, sometimes a stranger, they need to be completely confident that physicians are devoted to patients’ health and well-being and not just looking to enrich themselves.

But there’s more. Upholding professional values isn’t just necessary for strong patient-doctor relationships. It also can help sustain a healthy democracy. Professional values can actually serve as a morally stabilizing force in communities. Truth, trust, the willingness to put the interests of others ahead of one’s own, the impartial treatment of all people without regard to race, culture or income – these are the moral values on which the profession of medicine is grounded, and they happen to be the same moral values necessary to sustain a well-functioning democracy.

Today these values are at risk. Mistrust, xenophobia, hate, bias, partiality, and selfishness sometimes feel like they are becoming new moral norms. Since 2017, trust in government “to do what is right” dropped by 14 percentage points among the general U.S. population. Businesses, NGOs, and the media are experiencing similarly dismal levels of trust, and the Edelmen Trust Barometer is warning of an impending “trust crash.”

Physicians continue to score quite high in public trust, with 65% of U.S. adults saying physicians have “high /very high honesty and ethical standards.” Physicians rank fourth among the most trusted professions, following only nurses, military officers, and grade school teachers. Given the crisis of mistrust all around us today, it is more essential than ever that medical professionals uphold their promises and step up to safeguard the moral norms that our society needs to thrive.

Professionalism demands that doctors speak out

If a profession is a group seeking to earn the public’s trust by openly speaking forth on a set of shared promises, then professionalism is best understood as the belief system (the –ism) underlying these promises. In medicine, professionalism is the notion that society can and should trust medical groups to set and enforce standards of practice and ethical norms, based on their promise that they will always use these prerogatives to help improve the health of the community. In other words, professionalism means that with the privilege of self-regulation comes the responsibility to use medical skills and knowledge to promote public health, even when doing so is politically uncomfortable or financially harmful to doctors.

Obviously, speaking out against the NRA can be politically uncomfortable. But what’s rarely said is this: just as gun manufacturers make money from selling guns, physicians make money from treating the victims of gun violence. Bluntly speaking, that means reducing gun violence would actually be financially harmful for doctors, so the self-serving path would be for medical groups to stay silent and for doctors to just keep getting paid to patch up the people injured and killed in gun violence.

Of course, the idea that physicians would stay silent to prop up high levels of gun violence is ridiculous. After all, doctors would never urge people to keep smoking, drinking, or eating fast food, even though those are good for business too.

But why are these ideas ridiculous? They are ridiculous because we all, deep down, actually believe in physician professionalism, which demands that doctors tackle these issues. If physicians were to remain silent in the face of an epidemic – whether of gun violence or from any other source – it would rightly be interpreted as opportunistic, uncaring, and professionally incompetent. Worse, it would be a blatant breach of doctors’ collective promise to always seek to improve the health of the public, even when it’s not easy and even when it might cost doctors some revenue.

And guns are like smoking, drinking to excess, and eating junk food in more ways than one. For each of these products there are self-serving constituencies, uninterested in the health of the public, who wish doctors would just stop talking about the role of their products in hurting people.

But doctors won’t stop, because speaking out when it is difficult and costly is exactly what makes the profession of medicine worthy of the public’s trust, and thank goodness for that. The willingness of physician groups to speak out on gun policy is critical for public trust in medicine, and today it might also be reinforcing the values that are at the heart of our democracy. It proves that professional norms of truth, trust, impartiality, and placing the interests of others before self are more resilient in the medical profession than some might have realized – and maybe seeing physician groups uphold these values  will help preserve these values among the general population, too.

So, while it might be inconceivable to the leadership of the NRA that  the American College of Physicians and the American Medical Association—which perhaps it regards as mere trade groups — could act against the financial best interests of their constituents, for these medical groups it’s actually business as usual when it comes to public health issues. After all, speaking out on issues like gun violence is what proves medicine really is a profession and not just a trade.

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Patricia Illingworth, JD, PhD, is a professor at Northeastern University and a senior fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School.

 Matthew Wynia, MD, MPH, is a professor of medicine and director of the Center for Bioethics and Humanities at the University of Colorado, Anschultz Medical Campus. Twitter: @matthewwynia.

This blog post was originally published in the Hastings Bioethics Forum on December 17, 2018.

Physicians and Firearms: Finding a Duty to Talk to Patients About Guns [from Bill of Health]

In April, our Center for Health Policy and Law hosted a two-day conference entitled "Diseases of Despair: The Role of Policy and Law." Our friends at Harvard Law School's Petrie-Flom Center is now hosting a blog symposium from that conference on Bill of Health. 

The second piece is from our own Elisabeth J. Ryan.  For the full post, please visit Bill of Health. Additionally, a much longer version of this post will appear as an article in the forthcoming Winter edition of the Northeastern University Law Review.

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This post is part of a symposium from speakers and participants of Northeastern University School of Law’s annual health law conference, Diseases of Despair: The Role of Policy and Law, organized by the Center for Health Policy and Law.

All the posts in the series are available here.

Florida enacted a statute in 2011 entitled the “Firearms Owners’ Privacy Act,” which quickly became known nationwide as simply the “Docs v. Glocks” law.

This law essentially forbade doctors from asking their patients about gun ownership, recording information about guns in the home, and “unnecessarily harassing” patients for being gun owners. The penalty was potential medical license sanctions and a fine up to $10,000.

Championed by the NRA and the state of Florida as protecting Second Amendment rights, the law set off a nationwide debate about the free speech rights of physicians, the role the medical community plays in the fight against gun violence, and the rights of patients to keep the exercise of their Second Amendment rights private. Several Florida doctors challenged the law almost immediately, claiming that it infringed not only on their right to speak with patients, but on the patients’ rights to hear that speech. While the ensuing procedural history of Wollschlaeger v. Governor of Florida was complex to say the least, the full Eleventh Circuit Court of Appeals ultimately struck down most of the law as a violation of the First Amendment in 2017.

Though the ruling technically applies only within the Eleventh Circuit, the decision (which Florida wisely declined to appeal to the U.S. Supreme Court) had social and legal ramifications far beyond that region. The message was clear: physicians have a right to talk to their patients about firearms. The next logical step is to ask whether they actually have a duty to do so.

Please visit Bill of Health for the rest of the post!

Motivated by increasing numbers of "deaths of despair," the AMA adopts new policies aimed at reducing gun violence

By Jennifer Lea Huer

Earlier this week the American Medical Association (AMA) House of Delegates held their annual meeting in Chicago, Illinois, during which delegates voted to adopt multiple policies related to firearms and gun violence. Some of these policies reinforce and enhance policy positions the AMA has supported for years, while other policies offer specific recommendations for legislation that is currently under consideration at the state and federal levels.

Specifically, as posted on the AMA website, the list of new policies adopted include:

• Advocating for schools as gun-free zones

• Calling for ban on sale of assault-type weapons, high-capacity magazines

• Expanding domestic violence restraining orders to include dating partners

• Removing firearms from high-risk individuals

• Supporting increase in legal age of purchasing ammunition and firearms from 18 to 21

• Opposing federal legislation permitting “concealed carry reciprocity” across state lines; and

• Supporting gun buyback programs in order to reduce the number of circulating, unwanted firearms.

In support of its adoption of the gun-related policies listed above, the AMA pointed to increases in rates of suicide and firearm violence that the US is currently experiencing, part of the so-called “deaths of despair” highlighted by economists Anne Case and Angus Deaton in their 2015 and 2017 reports on the topic. Case and Deaton found that mortality rates for middle-aged non-Hispanic white men and women have been on the rise for years, and that these trends were so pronounced that they affected the overall mortality rate of the US population.

Similarly, the Centers for Disease Control and Prevention (CDC) released a report on June 7, 2018 confirming US suicide rates have increased dramatically (25%) over the past several years. The report showed that 49 states saw an increase in suicide rates (Nevada was the exception, though it still has one of the higher rates in the US) across all age and gender groups. This last point is particularly alarming, because though men have historically higher suicide rates than women, recent data indicates that women are also dying by suicide at significantly higher rates.

With nearly 45,000 Americans dying by suicide in 2016 alone, it is among the leading death of despair. While the CDC’s June 7th report does not does offer a deep dive into the causes behind the increased suicide rates, the report concludes with a strong recommendation for a coordinated public health approach to prevention activities and related research to better understand and address the factors contributing to these trends. At its annual conference, Diseases of Despair: The Role of Policy and Law, the Center for Health Policy and Law at Northeastern University School of Law also discussed the importance of rooting any meaningful, evidence-based, interdisciplinary approach within a public health framework. Conference discussions also emphasized the need to create stronger collaborations with community-based organizations that have ties in and trust with the communities they serve.

More research is needed to fully uncover and appreciate the causes behind these startling trends and to develop appropriate interventions. There is some evidence to suggest that stricter gun control laws may impact gun violence and suicide rates. Some physicians have argued that they have a role in prevention efforts. Legal and policy experts, as well as physicians, are still discussing the importance of the Wollschlaeger case and its effect on a physician’s ability to ask patients about the risks they face due to firearm safety in the home. Physicians not only have a role in prevention efforts, but they also see first-hand the horrific and tragic outcomes of firearm violence and suicide. Adoption of such a robust set of policy recommendations sends a clear and unified message that the AMA intends to continue to advocate for its patients and articulate the ways in which its physician members and the health care system can play a role in prevention efforts. It will be interesting to see if, and how, the AMA partners with public health and other experts to achieve its goal.

The Promising Potential of Gun Violence Protection Orders

By Elisabeth J. Ryan

While mass shootings account for just a small fraction of the more than 36,000 lives lost to firearms in the United States every year, these devastating, large-scale events have become not only more frequent but also deadlier in recent years. On February 14, a student who had been expelled from school returned to Marjory Stoneman Douglas High School in Parkland, Florida and killed 17 people using a high-powered AR-15 rifle. At first, the cycle of outrage, grief, “thoughts and prayers,” and demands for gun law reform seemed doomed to repeat and fizzle out, as they already had many times after many similar mass shooting tragedies. But something new emerged out of Parkland – the surviving students who refused to remain silent about gun law reform and refused to back down in the face of politicians and the NRA who advocate for fewer restrictions on guns, such as nationwide concealed carry reciprocity. But in large part due to the Parkland students’ indefatigable activism, the gun lobby has not been able to triumph again via a quiet return to the status quo. Instead, some serious and concrete discussions about gun law reform have taken place across the country. While some suggestions - like the President’s NRA-backed idea of arming teachers - are patently unrealistic; others – like “red flag” laws – have both potential political viability and established track records.

“Red flag” laws are also known as “gun violence protection orders” or “extreme risk protection orders” and refer to legal provisions that allow a petitioner to go to court and seek an order to seize another person’s guns if that person presents a danger to himself or to others. Five states have some version of this law – California, Connecticut, Indiana, Oregon, and Washington - and Rhode Island’s governor issued one via an emergency executive order this week as well. Several other states, including Massachusetts and New Jersey, have bills pending to create similar laws. The laws vary somewhat in details such as who can petition, the burden of proof required, and the process for challenging a seizure. But the overall purpose is the same – instituting a judicial process that allows for the emergency removal of firearms from the possession of a person posing a risk of harm to themselves or others.

These laws are perhaps particularly relevant in the wake of mass shootings like the one in Parkland because they offer a concrete way for a concerned person close to a potentially dangerous individual to seek a specific, court-sanctioned action that removes firearms from their access. The shooter in Parkland was of legal age, bought a legal gun, and legitimately passed all the required background checks, but people who knew him saw signs of potential danger. While some have blamed mental illness for that danger and claimed that firearms violence is a “mental health issue” rather than a “gun issue,” that perspective merely risks further stigmatizing people with mental illness as a whole, while doing nothing to actually provide additional services to anyone. Further, the link between mental illness and violence is extremely weak: “A 2015 study found that less than 5% of gun related killings in the U.S. between 2001 and 2010 were committed by people diagnosed with mental illness.”

Whether the existence of one of these laws would have prevented the massacre in Parkland is, of course, impossible to know. But when Florida Judge Steve Leifman, who chairs the Florida Supreme Court Task Force on Mental Health, was asked what authority he would want as a judge to play a greater role in preventing mass shootings, he answered, “So in Florida, we do not have the authority to take guns away from people that may have been found dangerous to self or others. We only have authority to put them on a list to stop the purchase of the firearm. But if they already own a gun, there’s nothing we can do, which makes no sense at all.”

That same sentiment lead Connecticut to enact the first “red flag” law almost 20 years ago. In 1999, Connecticut passed a relatively large firearms reform package spurred by implementing the National Instant Criminal Background Check System (NICS). In 1993, the Brady Handgun Violence Protection Act created a plethora of new federal firearms reforms, including the establishment of NICS, a centralized federal database that searches records every time someone tries to purchase a firearm from a federally licensed firearm dealer. NICS implementation depends on the cooperation of the states to submit such records, so states were tasked with adjusting their own laws and procedures to facilitate those transfers. When NICS became live in 1998, Connecticut acted swiftly to enact enabling legislation and further used the opportunity to pass multiple additional firearms-related statutes.  This included a first-in-the-nation procedure to seize the firearms of a person posing a risk of injury to themselves or to others. This novel law, though sometimes derided as the “turn-in-thy-neighbor act,” was created as “a very small, but important opportunity to intervene before it is too late.”

Before passage, one politician warned that this scheme would lead annoyed neighbors to maliciously call the police on each other, leading to situations in which armed-and-ready police officers burst through the door of legal gun owners, risking the lives of innocent families. He likened it to “1939 Germany.” Fellow politicians countered that the law was actually “extraordinarily tame” and had “very tight judicial controls.” The same arguments for and against such laws still exist, though bipartisan support is perhaps showing more promise. (The return to “1939 Germany” do not seem to have been realized in Connecticut).

The original Connecticut law created a roadmap for the handful of states that came after it, which somewhat tweaked and tailored their approaches, but kept the basic concept intact. In Connecticut, a prosecutor or any two police officers can petition a judge to grant a warrant allowing them to seize a person’s firearms and ammunition. To do so, they have to prove probable cause to believe that the “person poses a risk of imminent personal injury to himself or herself or other individuals,” that the person possesses firearms, and that they firearms are in a searchable place. The law requires that, before even applying for the warrant, the prosecutor or officers have to conduct an investigation to determine not only probable cause, but also that “no reasonable alternative [was] available to prevent such person from causing imminent…injury…” In the warrant application process, the judge is required to consider any recent threats or acts of violence directed towards the person’s self or others, as well as any recent acts of cruelty to animals. The judge may also consider evidence of any reckless use, display, or brandishing of firearms; history of the use, attempted use, or threatened use of physical force against other persons; prior involuntary confinement of such a person in a psychiatric hospital; and illegal use of controlled substances or abuse of alcohol.

The Connecticut law also mandates that the court hold a hearing within 14 days of the warrant’s execution, requiring a determination as to whether any seized firearms should be returned to the person named. The state has the burden to prove, by clear and convincing evidence, that that the person does pose a risk of imminent personal injury to himself or to others. If the court finds the state has met is burden, it may order that the state continue to hold the firearms for up to one year. It must also advise the state Department of Mental Health and Addiction Services, which can then determine whether to initiate involuntary commitment proceedings.

The most common changes to more recent firearm seizure law haves been to expand the potential petitioners to include family and household members and to shift from a warrant-based system to one more akin to a domestic restraining order, requiring a burden of either preponderance of the evidence or clear and convincing evidence, as opposed to probable cause.  The recent laws also generally include a provision allowing the subject of the order to request a termination hearing at least once during the one-year pendency of an order.

The Connecticut firearms seizure law has been challenged as a violation of the Second Amendment only once in published court decisions. Echoing the Supreme Court’s language in District of Columbia v. Heller, the Appellate Court of Connecticut disposed of the argument succinctly, stating in a 2016 case that the law “does not implicate the Second Amendment, as it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes. It restricts for up to one year the rights of only those whom a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of firearms. The statute is an example of the longstanding ‘presumptively lawful regulatory measures.’” No other Second Amendment challenges to these laws seem to have made their way to any other state appellate courts.

As the movement gains momentum towards more of these “common sense gun solution” red flag/gun violence protection orders states must also “do a better job of informing the public how these laws work…[because] even in the few states with red-flag laws, family members and police are often unaware of them.” Having such potentially promising policies on the books accomplishes little if no one knows how to utilize them.

Let's Get Fewer People to Die (from Northeastern Law Magazine)

Elisabeth Ryan, the head of Public Health Law Watch, wrote an essay about gun violence for the latest issue of the Northeastern Law Magazine.

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by Elisabeth Ryan

Guns were never a part of my life.  In the Massachusetts suburb where I grew up, my family did not go target shooting for sport and did not keep guns in the home for protection. The very idea of hunting was repugnant in our animal-loving household. In law school, my constitutional law classes never even mentioned the Second Amendment. My life was, in all tangible aspects, unaffected by guns.  But when I worked as a public defender, I represented people who commonly faced rampant violence in their lives and neighborhoods. For them, guns were often just part of reality. When I worked as counsel in the Massachusetts Executive Office of Public Safety and Security, overseeing state gun laws, regulations and policies brought me into contact with a population of individuals for whom guns were a central part of their lives, both tangibly and symbolically. 

I became aware that in the political world otherwise obsessed with firearms, recognition of gun violence as a public health issue was almost entirely absent.  So after years of practicing law, I went back to school and earned my MPH to study just that.

My mission now sounds deceptively simple: change the narrative around firearms from a bitterly partisan “us versus them” fight into a shared goal of getting fewer people to die.  To get closer to that goal, I think a few points are crucial to understand. 

First, the Second Amendment is not unlimited, contrary to what the pro-gun lobby espouses.  No right protected by the Constitution is unlimited.  And until the Supreme Court decided D.C. v. Heller in 2008, the law wasn’t even clear that the Second Amendment protected an individual right to possess a gun, as opposed to a collective right for militias.  In no way – now or ever –does the Second Amendment preclude stronger gun laws aimed at saving lives.

Second, the federal government essentially prohibits the Centers for Disease Control and Prevention (CDC) from conducting research on gun violence and that needs to change. In the 1990s, Congress deemed that a recent federally funded study that showed an association between guns in the home and increased homicide rates was anti-gun advocacy.  It subsequently stripped the CDC budget of the money previously allocated for firearms violence research and inserted a clause saying that no money “may be used to advocate or promote gun control." That clause has remained in every single federal budget since 1996.  The federal government needs to affirmatively fund research into a crisis that kills 30,000 people per year.  Refusing to do so devalues tens of thousands of lives.

Finally, some people will always value owning guns more than they value human lives and no amount of data or evidence will convince them otherwise.  But that doesn’t hold true for most gun owners.  Saving lives by preventing gun violence does not mean having to eschew gun ownership.  It can mean doing research, treating gun violence as a public health issue, increasing technological safety advances or tightening regulations on gun purchasing and storage.  It can start with laws, but also with friends, with gun dealers and with health care workers.  If we can all make the goal "let's get fewer people to die," I have no doubt that we can accomplish it.

The original essay published in the Winter 2018 issue of Northeastern University School of Law Magazine can be found here.

Smart Gun Technology and the Potential to Save Lives

By Elisabeth J. Ryan

In the 1970s, a California man designed a magnetic lock that could be installed in the revolvers used by law enforcement, rendering the gun inoperable unless the user was wearing a special ring with an opposing magnet.  This device, designed so that someone who grabbed a police officer’s gun would not be able to turn that gun back on the officer, represented the first “smart gun” technology (and can still be purchased today for a mere $420). Beginning in the 1990s, technology entrepreneurs and even gun manufacturers began to develop more sophisticated firearm technology designed to “prevent shootings, both intentional and unintentional, by children, thieves, and other unauthorized users.” But developers faced vehement opposition, not from anti-gun activists pursuing a once-vocal push for individual disarmament but from very loud and very angry gun rights activists. Technology development withered.  Both Colt and Smith & Wesson abandoned federal grants for such projects after suffering a “revenue-crushing boycott” from their customers because of the research. Of course, the mere fact that the federal government administered such grants led some to question whether the money for public safety technology improvement was really “a smoke screen to eventually take all handguns that are not smart guns out of the hands of law-abiding U.S. citizens...”  

Fifteen years and more than half a million American gun deaths later, the owner of Maryland gun shop “Engage Armament” planned to offer the Armatix iP1 for sale in 2014. This particular model looks a little sleek and futuristic, but otherwise seems like any other basic .22 LR caliber handgun with a 10 round magazine. But unlike all the other handguns on the Engage Armament shelves in May of 2014, the Armatix iP1 comes with a wristwatch. And unless the person who handles that firearm also wears the accompanying wristwatch, the weapon will not fire. The Armatix iP1 represents the first retail-ready “smart gun,” a term used to describe “firearms equipped with small embedded computers that are supposed to enhance safety by preventing anyone other than authorized parties from firing the weapons and, in some cases, by ensuring that the guns only fire when aimed at inanimate targets.” Engage Armament’s owner, Andy Raymond, thought that selling the Armatix “smart gun” would expand the firearms market to people otherwise unwilling to own or handle conventional guns.  He called the ideal new customer “a lawyer in Georgetown with a high income and young children who has been on the fence about getting a gun because of safety fears.” But before he could even stock the German pistol for sale, protesters bombarded his shop with complaints and even death threats. A California shop also endured a “furious backlash” when it (briefly) put Armatix models on its shelves. Both shops quickly reneged on their initial plans to sell Armatix guns.  

The fear that “smart guns” will replace all conventional handguns is actually somewhat based in reality.  In 2002, New Jersey passed the “Childproof Handgun Law,” which required that the state Attorney General determine annually whether “personalized handguns” are available for retail sales purposes… [meaning that] at least one manufacturer has delivered at least one production model of a personalized handgun to a registered or licensed wholesale or retail dealer in New Jersey or any other state.” And 2.5 years after that determination, New Jersey must prohibit the sale or transfer of any handgun other than a “personalized handgun or an antique handgun.” Originally, lawmakers intended to further “the development of personalized handgun technology and reduce[] preventable gun deaths.” But in 2002, “smart guns” were merely a conception, the niche of a small number of tech companies; in 2014, they were a reality.  And with that reality has come the heightened intense criticism.  Suddenly, this obscure state law was being viewed as an apparent “gun control push.” Curiously, the New Jersey AG has declared that the Armatix iP1 does not fit the law’s definition of a “personalized gun,” so its sale would not trigger the prohibitive law. 

Loretta Weinberg, the New Jersey state senator who sponsored the Childproof Handgun Law, now concedes that it has hindered rather than encouraged the development of “smart gun” technology. In 2014, Senator Weinberg offered to repeal the mandate if the National Rifle Association publicly agreed “not to stand in the way of the technology.” And though it didn’t happen immediately, the NRA has officially stated that it “doesn’t oppose the development of ‘smart’ guns...[but] opposes any law prohibiting Americans from acquiring or possessing firearms that don’t possess ‘smart’ gun technology.” True to her word, now-State Senate Majority Leader Weinberg filed a bill that removed the provision mandating “smart gun” sales only and instead mandated every dealer in the state to stock smart guns (once available) as part of their inventory. And though the bill passed both houses of the state legislature, Governor Chris Christie issued a “pocket veto” in January of 2016 by refusing to sign it. Though not unexpected because Christie was still in the midst of a failing presidential campaign, Weinberg nonetheless called the pocket veto “a little mystifying, because…he keeps the current law on the books, which is much more stringent.”  

In December 2015, a Johns Hopkins survey showed that 60% of Americans would be willing to buy a smart gun if they were in the market for a new handgun. One former San Francisco police chief declared that he wanted his officers to be able to carry smart guns and even offered up his department as a potential pilot site for using the technology. Some estimate that the market for smart guns could be worth $1 billion. Yet despite these potentially very lucrative new markets and the New Jersey AG’s declaration that the Armatix model will not trigger the maligned law, the opposition to (or fear of) selling smart guns seems to persist.  In March 2016, I enlisted the help of friends and family across the country to contact 35 (mostly randomly selected) gun shops in California, Connecticut, Florida, Kansas, Massachusetts, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Virginia, and Washington state. Not a single shop reported carrying Armatix models. One shop in Oregon offered to special order it, but warned that the price was “prohibitive.” A Connecticut gun shop passionately declared that it would “NEVER carry that type of gun… [and] that there are no smart guns.” A Washington state store “basically laughed [the caller] off the phone [and] made it clear she would not be carrying anything ‘like that’ in her store.” Another major national retailer in Connecticut stated flatly that it “won’t carry smart guns.” One retailer in Virginia told the caller that Armatix fires correctly “only 3 out of ten tries” and a Pennsylvania shop called the brand a “failed pipe dream.” Yet the Massachusetts Gun Control Advisory Board* certified the Armatix iP1 as meeting the state’s stringent statutory requirements, after an approved testing lab showed that the gun fired “the first 20 rounds without a malfunction [and] fire[d]…600 rounds with not more than six malfunctions.” Massachusetts has approved the model for sale in the Commonwealth, though apparently no dealers sell it.  Most retailers contacted indicated they had never heard of Armatix.

As of April 2015, only one person in the United States seemed to be selling Armatix: Doug, located somewhere in Nebraska, proprietor of “smartgunz.com.”  He wanted to keep his website, through which he legally sold Armatix models to other federally-licensed firearms dealers in other states, separate from his “brick and mortar business” and therefore declined to disclose his last name in the press.  But within hours, the pro-gun website “The Truth About Guns” outed Doug’s real identity and the name of his small shop, while simultaneously alluding to the “negative feedback” that the prior publicly-known Armatix sellers endured.  Smartgunz.com is now defunct.

Arizona, in April 2017, passed a law intended to preemptively ban a potential (albeit non-existent) “smart gun” mandate.  The state law prohibits requiring a person to use or be subject to “electronic firearm tracking technology,” defined as a device that uses “block chain” or a similar form of technology.  The sponsor of the bill explained that “he heard at a presentation at a conference that…the best way to regulate who can own and fire a gun is ‘block chain technology,’” so he wanted to ban it.  He claims the technology can “send out notifications if an unauthorized person tries to fire the weapon…’And that’s what I’m concerned about.’” While some have speculated that block chain technology – a sort of decentralized transactional system used primarily by digital currency companies like Bitcoin – could be utilized in smart guns, there is no evidence that any such product is even in development.  The fear that “smart guns” will one day mean the death of conventional firearms is so potent that Arizona enacted a law protecting itself against a non-existent mandate to use a non-existent technology.

Smart gun technology has not yet been perfected, due no doubt in part to the almost total lack of investment in the technology.  Recently, a hacker calling himself “Plore” succeeded in exposing security vulnerabilities of the Armatix model iP1 by extending the range of the watch’s radio signal and even disabling the locking mechanism with $15 worth of magnets. He went so far as to demonstrate exactly how to disable the safety features on a YouTube video, claiming that he isn’t opposed to smart gun technology, but that “If you buy one of these weapons thinking it’ll be safer, it should be… [The Armatix gun] really failed to live up to its side of the bargain.” 

Armatix has recently developed a prototype 9mm pistol – the iP9 – that can be activated with both the wristwatch and with an app, which would work at an unspecified “longer range” than the watch.  The model also provides an alternative unlocking model: the pistol grip acts as a sort of PIN pad. An authorized user “can unlock the gun by squeezing their fingers in sequences, which will enable the weapon to be fired until the same code is re-entered to turn it off.”  The company hopes that this model, more similar to what most law enforcement agencies already carry, will convince police and consumers who may have been skeptical of reliability to try the firearm. The company recognizes that getting law enforcement on board with using smart gun technology would likely lead the way to more widespread trust and interest. The company has also learned to emphasize that its products are “not here to replace other guns.” The Armatix iP9 was expected to be on the market sometime in 2017 but has not yet appeared.

The market does have some other “smart gun” technology available.  Kodiak Industries sells the “Intelligun,” which is not an independent firearm, but “a fingerprint-based locking system” that installs on any model 1911 handgun and will “unlock the firearm for operation immediately for authorized users.” iGun Technology Corporation has developed (though does not yet sell) a shotgun that operates only in the presence of a specially-equipped ring. Yet investment in these and other smart gun technology has remained virtually non-existent, even as the rest of technology has advanced exponentially since the 1990s.  The pro-gun lobby often espouses that smart gun technology is unproven yet it also opposes investment in research that could improve the technology.

In January 2016, President Barack Obama quipped that guns should have fingerprint recognition capability if his cell phone does and ordered federal government agencies to “conduct or sponsor research on digital devices that would reduce gun accidents and unauthorized use.” Three months later, the Departments of Justice, Homeland Security, and Defense announced a partnership with numerous law enforcement agencies at all levels of government to create “baseline specifications” to “outline…a clear description of what law enforcement expects from smart gun technology, particularly with regards to reliability, durability, and accuracy.”  By recognizing that buy-in to smart gun technology from the law enforcement community was vital to its continued existence and development, the Obama administration made a bold step towards encouraging investment in safer gun technology.  In November 2016, the National Institute of Justice released the “Baseline Specifications for Law Enforcement Service Pistols with Security Technology,” which reflected law enforcement concerns about allowing security access by more than one person, not increasing the time required to draw and fire, and defaulting to a “fireable” state if the security device malfunctions.  Undoubtedly due in large part to releasing the report at the time when the Obama administration was giving way to the Trump administration, no action has come of the reports. Some technology innovators initially expressed skepticism about whether Obama’s directive would lead to a viable market, partly because their presumptive consumer base remained so vocally hostile to the idea. Now almost two years later, their skepticism seems justified.

Despite the current dearth of financial support for the “smart gun” industry, this advancing technology could hold promise in reducing the number of gun deaths – more than 33,000 in 2014 – in the United States.  As some critics are quick to point out, smart guns obviously are not a panacea for America’s grossly disproportionate gun deaths. But with improved technology, clarified laws, and an adjusted attitude that no longer treats smart guns as a potential “Trojan horse for gun grabbers,” “smart guns” could hold the potential to reduce at least some of these appallingly high rates of gun deaths in the U.S. 

*In the interest of full disclosure, I served as counsel to the Massachusetts Gun Control Advisory Board at the time the Armatix model was approved.  I was not a voting member and have never had any financial interest in Armatix or any other related entity.

Recent Study Shows Stronger Firearms Laws Associated with Fewer Fatal Shootings by Police

By Elisabeth J. Ryan

In 2015 and 2016, at least 2239 people were killed by police in the United States, overwhelmingly by gunshot.  But a recent study shows that fatal shootings by police are half as common in states with stricter firearms laws than in those with the most permissive laws.  Firearm Legislation and Fatal Police Shootings in the United States (by Aaron J. Kivisto, Bradley Ray, and Peter L. Phalen), published in the July 2017 issue of the American Journal of Public Health, primarily used data on police shootings collected by British newspaper The Guardian (as no official nationwide database exists) and a numerical system indicating the strength of a state’s firearms laws.  Taking into account laws such as those instituting stronger background checks, carrying firearms in public, and addressing gun trafficking, the study ranked states based on the strongest firearms laws (the highest being California with a score of 31) to the weakest (Arkansas, Idaho, and Kansas with 4).  “[E]ach 1-point increase in firearm legislative strength was associated with a 4% reduction in mortality.” States with the strongest firearm laws had rates of fatal police shootings more than 50% lower than in states with the weakest firearm legislation.  This association remained even after controlling for age, education, violent crime rate, and household gun ownership rate.