THE ROBINSON REPORT #24: Let Us Make Guns Safer

The astronomical numbers of casualties in this country that result from guns have many causes. Each of those causes calls for a separate analysis concerning prevention. As a Commissioner at the U.S. Consumer Product Safety Commission (CPSC), I would like to focus today on the substantial percentage of injuries and deaths which are not the result of intentional violent acts.

The mission of the CPSC is to protect consumers from an unreasonable risk of injury or death associated with use and foreseeable misuse of a consumer product.[1] Guns lacking appropriate safety mechanisms pose just such a risk. Our statute, the Consumer Product Safety Act (CPSA), defines consumer products broadly and should logically include guns and ammunition.[2] However, a circuitous and opaque clause in the CPSA singles out and excludes guns and ammunition from the definition of “Consumer Product,” removing our jurisdiction and rendering us powerless to make them safer.[3]  Guns should be defined as the consumer products they are so that we may do our job of protecting the American consumer.

The CPSC gun restriction is just one of many placed on virtually all government agencies that could otherwise make guns safer.

1. Deaths and Injuries Caused by Guns Are of Epidemic Proportions

Gathering and analyzing data is always the starting point in addressing any safety problem appropriately. However, data on gun-related deaths and injuries are notoriously inaccurate since Congress has placed so many restrictions on gathering these data. Further, it is very difficult to separate out those gun-related deaths and injuries that are not the result of intentional violence. A variety of academic, government, and private actors have attempted to compile accurate statistics, but have produced an inconsistent array of numbers.

The data we have likely greatly underestimate the real numbers, however, even with those understated numbers, 91 people are killed with guns in an average day in the U.S.  Whatever the precise numbers are, it is clear that the United States is an “extreme outlier” in terms of gun violence rates compared to other Western democracies. Out of every million people in the United States, 31 are killed by gun violence. In Poland and England that number is one out of every million people and, in Germany, two in a million. The American Medical Association recently announced that gun violence in this country is a public health crisis.

Many gun-related injuries and deaths are intentional and these are clearly outside CPSC’s purview. However, many others are accidents. The Sydney School of Public Health found that between 2000 and 2014 there were nearly ten thousand unintentional firearm deaths in America.[4] According to CPSC’s admittedly-limited data gathered through our National Electronic Injury Surveillance System (NEISS) from approximately 100 Emergency Departments throughout the country, about 22 percent of firearms injuries are unintentional. Some accidental incidents are the result of improper handling by adults, others are caused by malfunctioning or defective guns, and far too many tragically involve children accidentally shooting themselves or others.[5]

A 2009 study for Pediatrics found 7391 annual gun-related hospitalizations of children and adolescents in the U.S., an average of approximately 20 every day! As of June 30, 2016, the Gun Violence Archive reported 39 children younger than twelve accidentally killed and 98 accidentally injured by guns in 2016. There have been at least 133 shootings in 2016 in which a person aged 17 or under unintentionally killed or injured someone with a gun. These are not just statistics. Every child injured and every child killed is someone’s son, daughter, brother, or sister. Every single one of these incidents shatters a family. Three-year-old Manal Abdelaziz died after a fatal shot to the head in North Carolina. He had been playing in his father’s convenience store and found the 9-millimeter pistol kept there for protection. In Kentucky, 8-year-old Andre LaMont O’Neal Jr. died when a visiting neighbor dropped his gun and it discharged. An 8-year-old boy shot his 9-year-old brother in the head in Trinidad, Colorado after the boys found a loaded handgun while waiting in the car. These three deaths occurred in a single week in January of this year. That week was not atypical. Each of these deaths was preventable.

2. Congress Has Tied the Hands of Agencies

When I hear about these deaths and injuries, I feel not only heartbreak, but also anger and frustration that the CPSC can do nothing to prevent them. But many federal agencies that could be protecting us from dangerous guns similarly have their hands tied. Here are some examples of those many restrictions.

     a. No Research Allowed

The CDC and National Institute of Health (NIH) have both been barred from using appropriated funds for research that can “advocate or promote gun control.” That language has been interpreted broadly by the agencies and federal public health research on gun violence that is critical to identifying the causes and the most effective measures at reducing gun deaths has largely disappeared as a result.

     b. No Data Allowed

The “Protection of Second Amendment Gun Rights” provisions in Section 2716 of the Affordable Care Act requires Health and Human Services (HHS) to create reporting standards for health insurers, which include wellness and prevention programs, but then bars them from requiring patients to disclose information about the lawful use, possession, or storage of a firearm or ammunition or the presence of a lawfully –possessed firearm or ammunition in a patient’s residence or property. The provision also prohibits the collection of data about ownership, possession, use, or storage of firearms or ammunition, and from maintaining any records of individual ownership or possession of a firearm or ammunition.[6]

The Tiahrt Amendments prohibit the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from releasing trace data to cities, states, researches, litigants, and members of the public; requires the FBI to destroy all approved gun purchaser records within 24 hours; and prohibits ATF from requiring gun dealers to submit their inventories to law enforcement.

     c. No Discussions Allowed

NRA- sponsored legislation blocked military commanders from talking about firearm ownership with their troops and military physicians from discussing it with severely depressed patients. That provision was eventually repealed after intense lobbying, however, while it was in effect, it was more difficult for the military to address the epidemic of suicides sweeping through active duty service personnel and veterans.

     d. No Efficiency or Thoroughness Allowed

Even agencies that have direct roles in dealing with firearms are often hobbled by arbitrary restrictions imposed by Congress. The ATF is barred from placing gun-tracing data into an electronic database, forcing the agency, in this sophisticated time of electronic data, to laboriously review by hand all data tracing guns used in crimes. The Federal Bureau of Investigation (FBI) is infamously given only three days to carry out a robust background check on attempted gun purchasers flagged by their automatic database.

     e. No Adequate Staffing at ATF Allowed

ATF went without a permanent director for seven years after Congress made the position subject to Senate confirmation through a provision added to the USA PATRIOT Act reauthorization.  Finally, B. Todd Jones was sworn in as Director in August, 2013, however, his resignation over a year ago again left the agency without a permanent Director. It is likely to remain so for quite some time.

The ATF has not experienced any kind of significant personnel expansion in decades despite growth in other federal law enforcement agencies. The agency is chronically and severely understaffed, making enforcement of the gun laws Congress has passed difficult, if not impossible.

3. Guns and Ammunition Should be Properly Defined as Consumer Products and Appropriate Resources Allocated to the CPSC to Regulate Them

The inherently dangerous nature of firearms might make some question whether effective regulation can really improve safety, but the example of the National Highway Traffic Safety Administration (NHTSA) regulating automobiles provides an apt and reassuring analogy.

Automobiles are inherently dangerous, and, as long as they are used by the public, deaths and injuries will occur. However, continued attempts to improve motor vehicle safety by federal regulators and industry players have helped decrease the number of accidental deaths dramatically. The number of accidental deaths involving motor vehicles annually in the U.S. declined from over 50,000 in 1978, 1979, and 1980 to closer to 30,000 even as the U.S. population, number of vehicles, and time spent in cars has grown. This dramatic decline was due to the combination of a number of factors, including better infrastructure, improved technology, changes in consumer behavior, but also regulatory action to increase vehicle safety. Many crashes today that would have been fatal fifty years ago are not today thanks in large part to the regulatory work done by NHTSA. There is no reason why a similar process between the CPSC and gun manufacturers cannot also dramatically decrease the number of accidental deaths and injuries involving firearms.

     a. The CPSC Has Exactly the Experience Needed to Put Standards in Place for Making Guns Safer and for Recalling Defective Products

CPSC staff has extensive experience using a variety of tools, such as development of mandatory and voluntary standards and implementing recalls of defective products, to improve product safety and prevent unnecessary consumer deaths and injuries.

          (i) Voluntary Standards

CPSC has been very effective in working with industry, consumer advocates, and other stakeholders, to develop robust voluntary safety standards for numerous products. Recently the CPSC, for example, was instrumental in developing and implementing a voluntary standard for individual laundry packets. Children mistake these small colorful packets of highly concentrated, pressurized detergent for candy, placing them in their mouths or biting them, which can cause them to burst, resulting in potentially severe injuries and even death. The new voluntary standard seeks to effectively reduce these incidents through a combination of warning labels to encourage caregivers to keep the packets out of reach, child- resistant packaging to reduce the likelihood that children will access the packets, bittering agents on the packets designed to encourage children to spit out the packets if they place them in their mouths, and increased burst strength to reduce the likelihood the packets will rupture if mouthed or bitten.

          (ii) Mandatory Standards

The CPSC has a long history of drafting and enforcing effective mandatory standards to protect consumers from dangerous products when directly mandated by statute, or when adequate voluntary standards are not in place. For example, CPSC’s mandatory regulations under the Poison Prevention Packaging Act (PPPA) required child resistant packaging for certain pharmaceuticals and household chemicals, designed to protect children from unintentional poisonings. The packaging must protect children but not be difficult for normal adults to use. Thus, PPPA is an example of a successful means of making a potentially harmful product or its contents difficult for children to access, while maintaining adults’ ability to use the product as intended. Between 1972 and 2013, PPPA achieved an 88 percent decrease in annual deaths due to pediatric poisonings.

          (iii) Recalls

Additionally, CPSC works well with industry to recall products that, due to a design or manufacturing defect, are unreasonably dangerous. CPSC works closely with companies to put together a Corrective Action Plan to address the hazard, and then monitors the recall to make sure it is effective. Every year the CPSC works with scores of firms to conduct hundreds of recalls, covering consumer products as varied as infant toys, power tools, and even bulletproof vests.

     b. CPSC Having Jurisdiction Would Make Guns Safer

Under our present statutory restrictions, we cannot work with industry to pass voluntary standards, pass mandatory standards, work with manufacturers or retailers to recall defective guns or ammunition, and we cannot study the patterns of unintentional deaths and injuries associated with guns. Any of these activities could, without infringing any Second Amendment right, help make guns less likely to cause accidental deaths and injuries.

          (i) Data

If guns and ammunition were appropriately considered consumer products, we could collect and analyze data relating to accidental deaths and injuries associated with them. This would help CPSC, other government agencies, industry, public health groups, educators, and consumers understand the patterns of incidents and their possible causes. Without this information, we cannot effectively design safer products, allocate health resources, or properly educate the public about the safe use and storage of guns and ammunition.

The CPSC has been using NEISS to collect data on both intentional and unintentional shootings for the Center for Disease Control (CDC) since 1993 as part of an interagency agreement, however, as stated, these data are collected and reported from fewer than 100 hospitals’ emergency departments and are far from perfect. Additionally, they do not include information related to deaths. And, because firearms are presently not consumer products, we cannot publish these data nor can we make full use of these data to inform safety designs, public education, and other essential public health initiatives, as we do for other products.

          (ii) Standards

If CPSC had jurisdiction over guns, we could work with industry to design guns that are less likely to cause accidental deaths or injuries. Examples include the fact that some design changes could make it less likely that a child accessing a gun would shoot herself/himself or a bystander. These could include child-resistant triggers and safety locks, or “smart gun” technology that, using a PIN or a fingerprint, would allow only the owner (or another authorized user) to shoot it. Also, an indicator showing that a bullet is in the chamber could prevent users from accidentally shooting themselves or others when they think the gun is unloaded. There may be countless other additional safety designs that would make it less likely that a gun will discharge when dropped or mishandled. CPSC’s excellent technical staff could work with industry to develop just such designs, if they were not prohibited from doing so.

          (iii) Recalls

If CPSC had jurisdiction over guns and ammunition, we could work with manufacturers and retailers to recall products with manufacturing or design defects that make them more likely to cause accidental deaths or injuries. Faulty firearms that misfire when dropped or handled roughly, safety catches that do not function properly, ammunition prone to dangerous delayed discharges, and more could all be monitored and recalled by the relevant firms with the CPSC’s help. Without this option, manufacturers and retailers cannot leverage CPSC’s expertise, reputation, and reach to help get defective products fixed or returned.

Conclusion

Our country’s current approach to gun regulations is beyond deficient and the deaths and injuries caused by guns every day are unbearable. There is a range of common-sense actions Congress could take that would improve all Americans’ safety while respecting our citizens’ Second Amendment rights. The first step is to define guns and ammunition as consumer products, as they certainly are, and allocate resources so that CPSC could do its job properly.

This simple step would allow CPSC to help make guns and ammunition safer by reducing the likelihood that they would cause unintentional injury and death. CSPC could then collect and analyze data on unintentional gun-related injuries and deaths. And CPSC could then work on voluntary or mandatory standards that would make it harder for children to shoot guns to which they gain access, prevent adults from accidentally shooting guns they thought were unloaded, and reduce accidental discharges. Defining guns and ammunition as consumer products would also allow CSPC to work with manufacturers and retailers on recalls of guns and ammunition with design or manufacturing defects that make them unsafe.

Changing the exclusion of guns and ammunition from the definition of “Consumer Product” would in no way restrict anyone’s access to purchasing a gun and, therefore, could not threaten any Second Amendment right. The CPSC works with industry, consumer groups, and the public to create standards for safety on everything from children’s toys, to off-road vehicles, to dangerous chemicals. It only makes sense that we should also be able to regulate the safety of guns and ammunition which cause thousands of accidental deaths and injuries a year.

[1] 15 U.S.C. § 2051.

[2] A Consumer Product is defined as “any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.” 15 U.S.C. § 2052(a)(5).

[3] CPSA Section 3(a)(5)(E) excludes from the definition of Consumer Products any item which… would be subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986 or any component of any such article.” 15 U.S.C. § 2052(a)(5)(E). These “items” are pistols, revolvers, firearms, shells, and cartridges. 26 U.S.C. § 4181.

[4] Alpers, Philip, Amélie Rossetti and Daniel Salinas. 2016. Guns in the United States: Unintentional Gun Deaths. Sydney School of Public Health, The University of Sydney. GunPolicy.org, 20 June. Accessed 30 June 2016. at: http://www.gunpolicy.org/firearms/compareyears/194/number_of_unintentional_gun_deaths.

[5] The true number of deaths caused by children accidentally shooting others is likely higher than official numbers suggest, as many of these deaths are classified as “homicides” rather than “accidental” and thus are not reflected in official statistics of unintentional gun-related deaths.

[6] 42 U.S.C. § 300gg-17.

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