http://www.davekopel.com/2A/LawRev/LawyersGunsBurglars.htmLAWYERS, GUNS, AND BURGLARS
David B. Kopel [FNa1]
Copyright © 2001 Arizona Board of Regents; David B. Kopel
I. Introduction
So we drove down the road, and I was lookin' for a house that looked like if there was somebody at home that it'd be somebody that didn't carry a gun or didn't have no weapons in the house, so they couldn't use them.
-- Arkansas burglar [FN1]
In recent years, litigators have begun to displace legislators as American lawmakers. Recently, more than two dozen cities and counties, under the coordination of an anti-gun organization, have filed suits against handgun manufacturers. [FN2]
While the effect of these suits may be to impose de facto handgun prohibition by driving manufacturers out of business, or by making handguns affordable only to the wealthy, these suits claim that handgun manufacturers should be held accountable for the externalities imposed by their products. For example, since city government hospitals spend money treating the victims of *346 gunshot wounds, it is argued that handgun manufacturers should be forced to reimburse city governments. [FN3]
The handgun suits are not unique; they are the latest manifestation of a growing trend to have litigators and courts decide complex questions of social policy which had previously been reserved to the legislature. Alcohol, prescription drugs, high-fat foods, and automobiles have all been discussed as potential future lawsuit targets if the handgun cases succeed. The handgun cases, it should be noted, are partly funded with the plaintiffs attorneys' winnings from the tobacco cases. [FN4]
This Article analyzes one specific reason why courts are ill-suited to exercise legislative functions, as the handgun suits and similar cases ask the courts to do: courts cannot properly assess the true socioeconomic costs and benefits of controversial products. To illustrate the point, this Article looks in detail at a very large positive externality which is overlooked in the handgun suits: the major role that widespread gun ownership plays in reducing the rate of home invasion burglaries (a.k.a "hot burglaries"). Because potential burglars cannot tell which homes possess guns, most burglars choose to avoid entry into any occupied home, for fear of getting shot. [FN5] The entry pattern of American burglars contrasts sharply with that of burglars in other nations; in Canada and Great Britain, burglars prefer to find the residents at home, since alarms will be turned off, and wallets and purses will be available for the taking. [FN6]
Consequently, American homes which do not have guns enjoy significant "free rider" benefits. Gun owners bear financial and other burdens of gun ownership; but gun-free and gun-owning homes enjoy exactly the same general burglary deterrence effects from widespread American gun ownership. This positive externality of gun ownership is difficult to account for in a litigation context (since the quantity and cost of deterred crime is difficult to measure), and may even go unnoticed by court--since the free rider beneficiaries (non-gun owners) are not represented before the court. [FN7]
Part International Comparisons of this Article looks at the differences between the behavior of American burglars and their cousins in other nations. Part Risks to American Burglars specifies the risks that American burglars face from various deterrents, including armed victims. Part Target Selection by Burglars details how burglars choose targets, while empirical data about burglary deterrence are analyzed in Part Real-world Tests of the Deterrence Model. Part Confrontations Involving Burglars looks at what happens during confrontations between burglars and victims. Part Guns Compared to Other Anti- Burglary Devices compares and contrasts defensive firearms ownership with other anti-burglary strategies, such as guard dogs. Policy implications and network effects of firearms ownership are explored in Part Policy Implications.
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II. International Comparisons
It is axiomatic in the United States that burglars avoid occupied homes. As an introductory criminology textbook explains, "Burglars do not want contact with occupants; they depend on stealth for success." [FN8] Only thirteen percent of U.S. residential burglaries are attempted against occupied homes. [FN9] But this happy fact of life, so taken for granted in the United States, is not universal.
The overall Canadian burglary rate is higher than the American one, and a Canadian burglary is four times more likely to take place when the victims are home. [FN10]
In Toronto, forty-four percent of burglaries were against occupied homes, and twenty-one percent involved a confrontation with the victim. [FN11] Most Canadian residential burglaries occur at night, while American burglars are known to prefer daytime entry to reduce the risk of an armed confrontation. [FN12]
Research by the federal government's Office of Juvenile Justice and Delinquency Prevention found that, based on 1994 data, American youths 10 to 17 years old had much higher arrest rates than Canadian youths for every category of violent and property crime. The lone exception was burglary, for which Canadian youths were one-third more likely to be involved. [FN13] In cities such as Vancouver, home invasion burglaries aimed at elderly people have become endemic, and murders of the elderly during those burglaries all too frequent. [FN14] Unfortunately, help from the government is not always available. In Quebec, the provincial police (Sureté du Québec) are under orders from their commander to reduce arrests for burglary, because the jails are full. [FN15]
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A 1982 British survey found fifty-nine percent of attempted burglaries involved an occupied home. [FN16] The Wall Street Journal reported:
Compared with London, New York is downright safe in one category: burglary. In London, where many homes have been burglarized half a dozen times, and where psychologists specialize in treating children traumatized by such thefts, the rate is nearly twice as high as in the Big Apple. And burglars here increasingly prefer striking when occupants are home, since alarms and locks tend to be disengaged and intruders have little to fear from unarmed residents. [FN17]
In Britain, seventy-seven percent of the population was afraid of burglary in 1994, compared to sixty percent in 1987. [FN18] The London Sunday Times, pointing to Britain's soaring burglary rate, calls Britain "a nation of thieves." [FN19] In the Netherlands, forty-eight percent of residential burglaries involved an occupied home. [FN20] In the Republic of Ireland, criminologists report that burglars have little reluctance about attacking an occupied residence. [FN21]
Of course, differences in crime-reporting and crime-recording behavior between nations limit the precision of comparative criminal data. Nevertheless, the difference in home invasion burglary rates between the United States and other nations is so large that it is unlikely to be a mere artifact of crime data quirks. [FN22]
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Why should American criminals display such a curious reluctance to perpetrate burglaries, particularly against occupied residences? The answer cannot be that the American criminal justice system is so much tougher than the systems in other nations. During the 1980s, the probability of arrest and the severity of sentences for ordinary crimes in Canada and Great Britain were at least as great as in the United States. [FN23] Could the answer be that American criminals are afraid of getting shot? The introductory American criminology textbook states, "Opportunities for burglary occur only when a dwelling is unguarded." [FN24] Why is an axiomatic statement about American burglars so manifestly not true for burglars in other countries.
III. Risks to American Burglars
A. Risks to Burglars from Victims
One out of thirty-one burglars has been shot during a burglary. [FN25] On the whole, when an American burglar strikes at an occupied residence, his chance of being shot is about equal to his chance of being sent to prison. [FN26] If we assume that the risk of prison provides some deterrence to burglary, it would seem reasonable to conclude that the equally large risk of being shot provides an equally large deterrent. In other words, private individuals with firearms in their homes double the deterrent effect that would exist if government-imposed punishment were the only deterrent.
How frequently are firearms actually used in burglary situations? The only comprehensive study of the subject was undertaken by five researchers from the Centers for Disease Control and Prevention ("CDC"). [FN27] Although some CDC studies on firearms have been criticized for obvious technical errors and bias, [FN28] this particular study simply reported the facts as the researchers found them. In 1994, random-digit-dialing phone calls were made throughout the United States, resulting in 5,238 interviews. [FN29] The interviewees were asked about use of a firearm in a burglary situation during the last twelve months.
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Thirty-four percent of the interviewees admitted to owning a firearm. This figure is low compared to dozens of other national studies of household firearms ownership. [FN30] Perhaps the telephone interviewers encountered an especially high number of people who were unwilling to disclose their ownership of a gun (and would therefore be unwilling to disclose, later in the interview, their use of that gun). [FN31] Thus, the burglary researchers are more likely to have underestimated anti-burglar firearms use than to have over-estimated it.
The researchers found that six percent of the sample population had used a firearm in a burglary situation in the last twelve months. [FN32] Extrapolating the polling sample to the national population, the researchers estimated that in the last twelve months, there were approximately 1,896,842 incidents in which a householder retrieved a firearm but did not see an intruder. [FN33] There were an estimated 503,481 incidents in which the armed householder did see the burglar, [FN34] and 497,646 incidents in which the burglar was scared away by the firearm. [FN35] In other words, half a million times every year, burglars were likely forced to flee a home because they encountered an armed victim.
