First, Prevent Harm: Eliminate Firearm Transfer Liability as a Lethal Means Reduction Strategy

The US suicide rate is at its highest since World War II¹; suicides are the second leading cause of death among persons aged 10 to 34 years and the 10th leading cause in the United States overall. By 2017, the number of suicide deaths had risen to 47 173 and, when combined with opioid overdoses, produced a three-year decline in US life expectancy for the first time in 50 years.²

In the United States, firearms are used in less than 6% of suicide attempts but are the mechanism of death in more than 50% of completed suicides.³ State suicide rates vary more than threefold, with the majority of the difference accounted for by firearm suicides. Although the preponderance of suicide attempts involve intentional overdoses, firearms have a 55-fold higher lethality rate,⁴ making it imperative to understand mechanisms for preventing firearm suicide attempts.

The commentary by Gibbons et al. (p. 685), in this issue of AJPH, speaks to the challenges of one key mechanism of firearm suicide reduction, namely the temporary surrender of firearms. Extreme risk protective order legislation has become the de jour mechanism, with 18 states enacting such laws as of February 2020. These laws remove firearms from owners via an involuntary mechanism and necessitate families’ engagement with a complicated court system. The use of these laws has been highly variable. In a period of a year and a half, Florida had more than 2000 “red-flag” orders, whereas over a similar period California had less than 200—but each state has roughly 2.5 million firearm-owning households.^5,6

An option for suicide prevention is voluntary temporary surrender of firearms. These weapons are typically entrusted to family, friends, gun retailers, or law enforcement. On the surface, this appears to be a simple solution if gun owners are willing to relinquish their firearms. However, as Gibbons et al. point out, profound legal and liability issues must be considered. For example, among the 20 states that require universal background checks (along with the District of Columbia), only 14 provide exemptions during times of crisis such as suicidal ideation. But what happens when the crisis has passed and it is time to return the firearm?

Under current law, it would be extremely difficult to hold any party who accepts a firearm during a suicide crisis—whether family, friends, gun retailers, or law enforcement organizations—liable for negligently transferring the weapon back to the individual who relinquished it. Thus, it is both ironic and unfortunate that gun retailers and law enforcement organizations report fearing potential liability for storing and then returning firearms under federal and state law. Such fears likely stem from popular assumptions that one can sue anyone successfully for anything in America. In fact, the law places the legal responsibility on the person who attempts or commits suicide and thus makes it difficult to hold anyone liable for helping to cause that behavior.

This framework protects family or friends who temporarily hold a firearm and then return it, so long as these individuals act as reasonable stewards who ensure that firearms are appropriately stored and do not return them in the midst of a clear suicide crisis. In addition, it is particularly difficult to sue both gun retailers and law enforcement organizations, the very entities we hope will become community partners in suicide prevention.

Although responsibility is placed upon the individual who makes the suicide attempt, there are a few exceptions to this rule. For example, if someone undertakes a legal duty to watch over another to prevent self-harm and breaches this duty through unreasonable conduct, that caretaker can be held liable. If an act of suicide is the product of an “irresistible impulse” associated with brain trauma from a prior injury (such as a car accident), the person responsible for that injury can be held liable for the suicide as well. Neither of these exceptions nor any others neatly fit with transfer-back liability for family, friends, gun retailers, or law enforcement organizations.

It also matters whom one seeks to sue. Under common law, a gun retailer could face liability for breaching a legal duty to keep a firearm safe and, in theory, for transferring the firearm back to the owner when the owner is manifesting suicidal behaviors. The vast majority of liability for negligence, however, could be eliminated through a release. Moreover, gun retailers enjoy substantial legal protections; Congress and several state legislatures have passed laws immunizing gun retailers from liability related to criminal acts by third parties that use their products. Law enforcement organizations are even more difficult to sue. They enjoy immunity for discretionary acts, such as when the police release potentially dangerous individuals after assessing them and determining that they are not a danger to themselves or others. Law enforcement can, however, be held liable for not following mandatory protocols (e.g., state laws establishing particular transfer-back time frames for holding a firearm for an individual).

Educating gun retailers and law enforcement organizations about these limitations on liability might correct misconceptions about transfer-back liability. Congress and state legislatures could offer further protections by establishing clear protocols for firearm storage and transfer-back, together with model releases that individuals, retailers, and law enforcement could use to eliminate liability.

Thus, sound policies that provide detailed guidance on transfer-back protocols are the most urgent need to facilitate voluntary surrender. Ideally, such policies should incorporate guidance created by mental health professional associations or developed by legislatively appointed committees that include mental health practitioners, judges, law enforcement representatives, and gun retailers, among others. A release protecting family, friends, gun retailers, and law enforcement organizations that comply with the transfer-back protocol could certainly be part of that statutory scheme and should explicitly disclaim liability for determining whether individuals are a danger to themselves or others. Any such protocol should prioritize ease of compliance. For example, a protocol that requires owners to provide a letter from a mental health professional before retrieving firearms would function as a deterrent to voluntary relinquishment of firearms during a psychiatric crisis.

Another sticking point is how to navigate state laws requiring background checks for temporary transfers between private parties. It is ironic that the state laws most conducive to reducing firearm fatalities are the same state laws that erect barriers to temporary transfers in moments of suicide crisis. One solution is that universal background check laws should be paired with exclusions around temporary transfers related to suicidality.

To maximize efficacy, comprehensive public education campaigns should describe the details and implications of any legal reforms to both gun owners and potential transfer-back recipients. Existing partnerships, such as that between the American Shooting Sports Foundation and the American Foundation for Suicide Prevention, may heighten the credibility and perceived efficacy of transfer-back reforms. These efforts could incorporate health care providers offering lethal means counseling, who could refer gun owners to “partner organizations” that have agreed to receive and store firearms for owners in crisis.

Suicide is not inevitable. Beyond the clear value of therapy and emotional support, one of the best ways to prevent suicidal individuals from taking their own lives is to provide a mechanism for efficient and protected lethal means reduction. It is far better for our society to proactively enact such protections now than to look back and say “I wish we had done more” after the fact.