On Dec. 5, 2012, Kao Xiong placed a loaded gun under a pillow in the bedroom of his South Minneapolis home. Kao Xiong’s 4-year-old son unearthed the gun and proceeded to engage in child play with his 2-year-old brother, Neegnco. That resulted in a gunshot killing Neegnco. Because of the negligent storage of the firearm, Kao Xiong was convicted of manslaughter and child endangerment. A dead child … a parent convicted … a father and mother whose grief knows no limits … a family’s world turned upside down and a prosecutor brought to tears by the easily preventable loss of an innocent child.
According to the American Academy of Pediatrics, there are approximately 10,000 shootings a year in the United States involving “youth.” Often those shootings involve adolescents employing stolen weapons. When statistics focus on “accidental shooting” by children ages 0-11, the Gun Violence Archives reports that 137 such accidents have occurred thus far this year. The American Academy of Pediatrics further reports that “… a gun in the home is forty-three times more likely to be used to kill a friend or family members than a burglar or other criminal.” They also report that “depressed preteenagers and teenagers commit suicide with guns more frequently than by other means.”
The goal: removing children’s access
Awareness by gun owners that they can be convicted for carelessly storing firearms serves as a deterrent. However, society’s goal is to avoid such convictions by ensuring that children never access firearms — not merely to highlight the importance of proper gun storage through after-the-tragic-fact prosecutions of careless gun owners. Some jurisdictions have laws designed to prevent these tragedies by mandating safe storage of firearms and locking devices. However, to be effective, the state may have to engage in inspection and enforcement processes that appear impractical.
Gun-control advocates in Minnesota are working to reduce gun violence. Lobbying campaigns directed at legislators are largely focusing on background-check legislation. Such legislation attempts to ensure that, before consummation of the sale/purchase of a firearm, those suffering from mental health issues or with criminal histories receive greater scrutiny. While background-check legislation may help address horrific shootings like those that occurred in Aurora, Newtown and Charleston, it is currently getting no traction in the Minnesota House of Representatives. Rep. Tony Cornish, R-Vernon Center, is steadfastly refusing to hold hearings on any gun-control legislation. A deeply divided Legislature is, once again, trying to focus elsewhere. The time is right to look at approaches outside the legislative process.
In other states, efforts to curb gun violence include proposals designed to require gun owners to carry liability insurance. The logic behind these measures appears compelling: If you are required to carry liability coverage when you drive a car, why not require liability insurance for owning a more dangerous device, namely, a gun? Then, in the event a gun causes an injury, the injured party would have an avenue for relief. Further, a market is created because, presumably, premium prices would fluctuate based on the competency of the gun owner.
Today, a gun owner’s decision to obtain liability insurance is optional. One political problem with “compulsory” proposals is that gun owners are repulsed by the idea of paying increased costs to exercise their constitutional “right” to own a gun. It is difficult to visualize Minnesota mandating liability insurance in the current political climate. However, people — including those who advocate gun rights — do not want children playing with loaded firearms. Notwithstanding the controversy surrounding a liability insurance “mandate,” Minnesota’s insurance marketplace could still help promote this societal goal by complementing existing law.
Minnesota regulates the insurance industry through its Department of Commerce. The department oversees insurance products, including homeowners’ insurance policies. The department has broad regulatory authority with respect to the insurance industry. Its powers include licensure, examination and enforcement. Specifically, the department can “hold hearings” or “conduct examinations” to “compile information” related to its duties and responsibilities. Therefore, the department could immediately hold meetings with the insurance companies it regulates to “compile information” on the current interface between gun ownership and homeowners’ insurance policies.
A small step to ask about gun safety
Some insurance companies already request information about gun ownership in connection with the issuance of insurance to homeowners. This information is primarily sought in order to assess the value of a homeowner’s personal property. In connection with such inquiries, it would be a small step for companies to also inquire about the safety activities engaged in by the gun owner. Are the guns properly stored under lock and key? Is there a locking device on the firearm? Does the gun owner engage in training programs?
Insurance companies reward for mitigation of risk. For example, the installation of an alarm or sprinkler system is likely to reduce the insurance premium one pays. “Good driver discounts” are routinely promoted by insurance companies. Safe gun storage also mitigates risk. However, instead of promoting safe gun practices to mitigate risk, it appears that insurance companies merely cap that risk by limiting the amount of money an insured party can obtain in the event of a loss.
Potential discount or rebate
We can hope that the vast majority of Minnesota gun owners are taking reasonable safety steps to avoid having guns misused or stolen. If so, a nudge by the department to the industry it regulates could make responsible gun owners eligible for a “gun safety discount” on their homeowner policy. Providing a discount or rebate to responsible Minnesota gun owners for the safe storage of firearms should be embraced by all Minnesotans. Imagine insurance companies competing by offering discounts or rebates on insurance premiums for responsible and safe practices by gun owners.
This is hardly a new discussion. In 2013, the CEO of State Farm stated that gun ownership could be considered by insurance companies in assessing risk factors, but “… whether someone owns a gun doesn’t necessarily make them a risk … the bigger debate is: Are people competent in gun ownership.” The exploration of this “debate” is long overdue in Minnesota.
On a federal level, a dysfunctional Congress has caused the president to proceed to take action by executive order. Under existing statute, the Minnesota Department of Commerce is positioned to promptly convene meetings with insurance carriers, gun right advocates and gun control advocates to see whether a market can be developed to provide incentives to responsible gun owners. The department can then report on the prospects of using the insurance marketplace to create an environment promoting gun safety activities and, whether additional legislation is necessary.
It is time to place policy over politics and executive action over legislative inaction. While this approach only addresses a small part of the broader debate relating to gun violence, over time perhaps we can avoid reading about tragedies like that suffered by the Xiong family.
Robert Moilanen is a Minneapolis attorney whose practice has involved both public and private sector representation.
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