May 31, 2023
Karla Vera
Editor-in-Chief (2022-2023)
Firearm related injuries—intentional and unintentional—are the leading cause of death in children in the United States.¹ In fact, suicide is the second leading cause of death among people between the ages of 10–34.² Firearms are used in about 50% of completed suicides, though they are used in less than 6% of suicide attempts.³ Mechanisms to safely remove firearms from homes are imperative.
In 2020 alone, 45,979 people died by suicide.⁴ Firearms accounted for 52.83% of all those completed suicides.⁵ Suicide attempts are often impulsive and suicidal crises are generally short lived and fleeting.⁶ Yet, due to a firearm’s lethal nature, firearms increase the risk of suicide exponentially.⁷
“Lethal means safety” is a component of suicide prevention that involves reducing access to firearms for people at risk of suicide.⁸ The voluntary, temporary storage of firearms outside of the home is one mechanism to promote lethal means safety.⁹ The idea itself is simple: if a person is having a mental health crisis, they voluntarily remove their firearms from their home to be stored elsewhere by someone they know, law enforcement, or a firearm shop¹⁰ until the crisis passes. Of course, there are questions and concerns about this method of lethal means safety. Laws facilitating the voluntary and temporary transfer of firearms by shielding transferees (the person taking the firearm) and transferors (the person that owns the gun) from potential legal liability may help address some of these barriers.
I. Private Party Transfers
States have the (almost) exclusive power to enact gun laws.¹¹ Though the federal government can regulate gun sales to a limited extent, states can enact laws to regulate the purchase, sale, transfer, use, and possession of firearms and ammo.¹² Consequently, gun laws vary widely around the country. However, multiple states have already passed laws facilitating the temporary transfer of firearms in order to prevent imminent death or serious injury.
Colorado Law
Under Colorado law, a transfer or sale of a firearm between two people generally requires two things: (1) the transferee’s background check run by a licensed firearms dealer and (2) approval of the transfer by the Colorado Bureau of Investigation.¹³
Colorado carved out two exceptions to these requirements. The first exception applies when the transferee “reasonably believes that possession of the firearm is necessary to prevent imminent death or serious physical injury to the unlicensed transferee.”¹⁴ This means that if the transferee is legally allowed to possess a firearm and she believes that she is in serious danger of harm because of the transferor’s possession, she is not required to go through the background check and approval process to temporarily store the gun.¹⁵
Under the second exception, a transfer that lasts less than 72 hours is also exempt from the background check and approval requirements.¹⁶ Under this exception, however, the law explicitly states that the transferor may be legally liable for a transferee’s unlawful use of the firearm.¹⁷
The problem is that neither of these exceptions addresses the pressing issues at hand. Imagine this: Jamie, a Colorado resident, is having suicidal thoughts and fears for his own safety while his gun is in his home. Jamie wants to temporarily store his gun outside of his home while his mental health stabilizes. Jamie’s friend, Jo, offers to store the gun for him. Under the first legal exception, Jo, the transferee, can only bypass the lengthy and expensive background check and approval process if Jo believes that Jamie will seriously hurt Jo with the firearm. But Jamie is suicidal, not homicidal, so this does not protect him. Under the second exception, Jamie can only give Jo his gun for up to 72 hours—which is likely not enough time to get the care he needs because suicide attempts can happen anywhere from less than 10 minutes from the initial ideation to weeks or months later.¹⁸ Plus, if Jo unlawfully uses the gun during those 72 hours, Jamie (who is already in crisis) could be held liable for those damages.
Though background checks may identify people prohibited from possessing a firearm, during a crisis this requirement may create a financial or timely barrier to transfer. During a mental health crisis, a timely and accessible response is critical and procedural requirements may delay necessary care.
Oregon law
Oregon took a different approach. Under Oregon law, a lawful firearm transfer has several requirements including a background check and approval by a county sheriff or police chief.¹⁹ However, by definition, a lawful firearm “transfer” does not include the temporary provision of a firearm “for the purpose of preventing imminent death or serious injury” so long as “the provision lasts only as long as necessary to prevent the death or serious physical injury.”²⁰ Therefore, in Oregon, a temporary firearm transfer between individuals to prevent serious injury or death is not subject to the transfer law’s requirements.
Oregon’s exclusion seemingly addresses some of the potential barriers of voluntary temporary firearm transfers and may encourage gun owners and their loved ones to use this legal mechanism. However, the law does not include liability protections for transferees or transferors. Let’s revisit Jaime: if Jaime were an Oregon resident, he would be able to transfer his gun to Jo very easily. Jo could store the gun without a background check and a lengthy approval process. Now, let’s assume that a month later Jaime tells Jo that he’s feeling much better because he had an emergency therapy session and started taking anti-depressants. Jo, relieved, returns the gun. The next day, Jaime commits suicide. Jaime’s mom is furious. She blames Jo because, according to her, Jo knew that Jaime was in crisis, took it upon herself to store his gun, but gave it back with no assurances that Jaime was actually better. Jaime’s mom argues that a few text messages from a recently suicidal person do not justify returning the gun because of this exact possibility, and instead, Jo should have asked for “real proof” like a psychiatric evaluation. What does Jo do now?
It depends on whom you ask. Eric W. Fleeger, MD, MPH, and Jody Lyneé Madeira, PhD, JD, MS, say that “[u]nder current law, it would be extremely difficult to hold any party who accepts a firearm during a firearm crisis . . . liable for negligently transferring the weapon back to the individual who relinquished it.”²¹ They argue that the current legal framework protects transferees because “the law places the legal responsibility on the person who attempts or commits suicide.”²² But how do we know this for sure?
The “Suicide” Affirmative Defense
Under Texas Law²³ (and in most jurisdictions), in a civil suit for wrongful death the accused can raise suicide as an affirmative defense.²⁴ This means that a defendant in a wrongful death case can argue that he is not responsible for the decedent’s death because the decedent intentionally killed himself and that act was an “intervening force” that broke the chain of causation between the defendant’s actions and the decedent’s death.
However, the affirmative defense is inapplicable if the suicide was caused in whole or in part by a defendant’s “failure to comply with an applicable legal standard.”²⁵ Generally, “an applicable legal standard” exists when there is a special relationship between the defendant and the decedent—like a doctor‑patient relationship—that imposes a duty of care on the defendant.²⁶
The “applicable legal standard” requirement supports the idea that it would be difficult to hold Jo responsible for Jaime’s suicide (because there is no special relationship between the two). This may not be the case in all jurisdictions. In some jurisdictions, where a defendant’s wrongful act is “supplying the deceased with the instrumentality of his suicide” and the defendant knew or should have known that the defendant intended to use it to commit suicide, the defendant can be held liable for the decedent’s suicide.²⁷ Given the scenario above, would a jury side with Jo or Jaime’s mother in a wrongful death suit?
II. Law Enforcement Transfers
Public health professionals often point to law enforcement agencies (“LEAs”) as possible and obvious firearm storage sites. Some LEAs around the country already offer voluntary firearm storage but this is not common.²⁸ When surveyed, LEAs in Colorado and Washington reported that they supported being engaged in suicide prevention (89%), while also preferring to be the storage option of last resort (78%).²⁹ When asked about what factors substantially influenced their decision to provide (or not provide) firearm storage, most LEAs identified liability concerns related to the return of a firearm to someone that hurts themselves or others, second only to logistical concerns.³⁰ More specifically, liability waivers regarding firearm return, firearm damage during storage, and refusal to return the firearm were factors that might influence their decision to provide temporary storage “a lot.”³¹
Concerns about LEAs as storage sites are likely not one-sided. Attitudes toward law enforcement vary widely.³² General distrust, fear, or ambivalence towards law enforcement would undoubtedly prevent many people from relinquishing their firearms to officers, even if just temporarily.
But what about Extreme Risk Laws or “Red Flag” Laws?
Yes, a legal avenue for gun confiscation by law enforcement during times of crisis already exists; these laws do not solve the issues at hand. Extreme Risk Laws, sometimes called “Red Flag Laws,” allow police, loved ones, and even doctors to petition a court to temporarily remove a person’s access to guns during a crisis.³³ Fundamentally, this method of gun confiscation is involuntary and although Red Flag Laws have been somewhat effective in Indiana and Connecticut, most states have not adopted them.³⁴ More concerning is the low rate at which these laws are generally used.³⁵ Perhaps, due to legal nature of the confiscation—it is reasonable to assume that folks are reluctant to involve their loved one in a legal proceeding with very real consequences. Perhaps, due to a lack of awareness.³⁶ Whatever the reason, these laws do not eliminate the necessity for alternate legal avenues to safely limit access to firearms during times of crisis.
III. Conclusion
Firearms account for over 50% of suicide attempts; thus, safe ways to remove firearms from the home during mental health crises are imperative. The voluntary, temporary storage of firearms outside of the home is one method of lethal means safety. However, liability concerns may prevent private parties and law enforcement agencies from being open to firearm storage. The following are recommendations that may address these concerns.
First, all states should follow Oregon’s lead and pass laws that facilitate private party firearm transfers during times of mental health crises. Those laws should include a provision that shields private parties from liability when using firearm transfer laws.
State and federal legislatures should pass laws that shield the transferee from liability for:
Harm to the transferor by the transferor (suicide using the firearm) after return of the firearm in good faith;
Harm to others by the transferor after return of the firearm in good faith; and
Damage to the firearm while in the transferee’s possession that results from mere negligence (not from gross negligence or intentional acts).
State and federal legislatures should also pass laws that shield the transferor from liability for:
Harm to others by the transferee while in possession of the transferor’s firearm.
Finally, consistent regulatory guidelines by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, laws that encourage law enforcement agencies to store voluntarily surrendered firearms, and guidance by psychological and psychiatric professionals pertaining to the proper return of a firearm may also address concerns about the temporary transfer of firearms.³⁷ Absent broad gun safety reform, suicidal people who own firearms will continue to be at heightened risk of death. Facilitating the voluntary and temporary transfer of firearms may prevent countless injuries and save countless lives.
Sources [1] Sandra McKay et al., Temporary Firearm Storage and Safe Firearm Storage Counseling at Gun Retailers and Ranges in the Greater Houston Area: A Potential New Partner in Addressing Child and Youth Firearm Injury?, 12 J. Applied Res. on Child., no. 2, 2021, at 1.
[2] Eric W. Fleegler & Jody Lyneé Madeira, First, Prevent Harm: Eliminate Firearm Transfer Liability as a Lethal Means Reduction Strategy, 110 Am. Pub. Health Ass’n 619, 619 (2020).
[3] Id.
[4] Suicide Statistics, Am. Found. for Suicide Prevention, https://afsp.org/suicide-statistics/ (last visited Dec. 19, 2022).
[5] Id.
[6] Means Matter, Harvard T.H. Chan School of Public Health, https://www.hsph.harvard.edu/means-matter/means-matter/duration/ (last visited Dec. 19, 2022); Molly J. Gibbons et al., Legal Liability for Returning Firearms to Suicidal Persons Who Voluntarily Surrender Them in 50 US States, 110 Am. Pub. Health Ass’n 685, 685 (2020).
[7] Molly J. Gibbons et al., Legal Liability for Returning Firearms to Suicidal Persons Who Voluntarily Surrender Them in 50 US States, 110 Am. Pub. Health Ass’n 685, 685 (2020).
[8] Marian E. Betz et al., Voluntary, temporary out-of-home firearm storage: a survey of law enforcement agencies in states, 9 Inj. Epidemiology, art. 24, 2022, at 1.
[9] Id.
[10] Sandra McKay et al., supra note 1, at 2.
[11] See infra note 12.
[12] Article I, Section 8 of the United States Constitution sets out Congress’s enumerated powers. Congress can only enact legislation that stems from one of those enumerated powers. See McCulloch v. Maryland, 17 U.S. 316, 405 (1819). The power to regulate firearms is not one of Congress’s express powers. However, Congress has the power “[t]o regulate Commerce…among the several states.” U.S. Const. art I, § 8, cl. 3. Thus, Congress may regulate (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. U.S. v. Lopez, 514 U.S. 549, 558 (1995). Essentially, Congress can regulate guns when they cross state lines or substantially affect interstate commerce. Congress can also regulate guns based on its “taxing power,” another enumerated power in Article I, Section 8. Neither one of these powers compares to the states’ “general police power” to enact laws for the public good. Bond v. U.S., 572 U.S. 844, 854 (2014); Lopez, 514 U.S. at 567. Firearm laws fall under this category of laws. See Lopez, 514 U.S. 566–68.
[13] Colo. Rev. Stat. Ann. § 18-12-112(1)(a) (West 2022).
[14] Id. § 18-12-112(6)(d) (emphasis added).
[15] Id.
[16] Id. § 18-12-112(h).
[17] Id.
[18] Gibbons, supra note 7, at 686.
[19] Or. Rev. Stat. Ann. § 166.435, amended by the Reduction of Gun Violence Act, B.M. No. 114 (Or. 2022).
[20] Id. § 166.435(1)(a)(F).
[21] Fleeger & Madeira, supra note 2, at 619.
[22] Id.
[23] Tex. Civ. Practice Code § 93.001(a)(2).
[24] An affirmative defense is a fact or set of facts that, if proven, negates or mitigates the defendant’s liability for his unlawful conduct. Self-defense, for example, is a common affirmative defense.
[25] Id. The Texas Supreme Court has adopted another exception to this rule: the defense is inapplicable when a defendant’s wrongful act “produces such a rage or frenzy that the injured person destroys himself during that rage or frenzy, or in response to an uncontrollable impulse.” See Exxon Corp. v. Brecheen, 526 S.W.2d 519, 523 (Tex. 1975).
[26] See Logarta v. Gustafson, 998 F.Supp. 998, 1005 (E.D. Wis. 1998) (“Such relationships are typically ‘custodial’ in nature, or at least “supervisory”, such as the doctor-patient relationship associated with hospitals or mental institutions, the jailor-inmate relationship associated with prisons and local jails, and sometimes the teacher-student relationship associated with schools.”).
[27] Id. at 1006.
[28] Ashley Brooks-Russell et al., Law Enforcement Agencies’ Perceptions of the Benefits of and Barriers to Temporary Firearm Storage to Prevent Suicide, 109 Am. Pub. Health Ass’n 285, 285 (2019). See, e.g., Gun Storage Map, Colorado Firearm Safety Coalition, https://coloradofirearmsafetycoalition.org/gun-storage-map/ (last visited Nov. 21, 2022).
[29] Marian E. Betz et al., Voluntary, temporary out-of-home firearm storage: a survey of law enforcement agencies in states, 9 Inj. Epidemiology, art. 24, 2022, at 3 (emphasis added).
[30] Id.
[31] Id.
[32] See Emily Ekins, CATO Inst., Policing in America: Understanding Public Attitudes toward the Police. Results from a National Survey 1–4 (2017), https://www.cato.org/sites/cato.org/files/survey-reports/pdf/policing-in-america-august-1-2017.pdf.
[33] “Crisis” means the possibility of causing extreme harm to themselves or others. Extreme Risk Laws, Everytown, https://www.everytown.org/solutions/extreme-risk-laws/ (last visited Mar. 26, 2023).
[34] Extreme Risk Laws, supra note 33.
[35] See Bernard Condon, ‘Red flag’ laws get little use even as mass shootings, gun deaths soar, PBS: NEWS HOUR (Sept. 2, 2022, 2:17 PM), https://www.pbs.org/newshour/politics/red-flag-laws-get-little-use-even-as-mass-shootings-gun-deaths-soar.
[36] Id.
[37] See generally, Marian E. Betz et al., Voluntary, temporary, out-of-home firearm storage: A qualitative study of stakeholder views, 52 Suicide and Life-Threatening Behav. 655, 659–63 (2022).
