[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
PROTECTION OF LAWFUL
COMMERCE IN ARMS ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 800
__________
MARCH 15, 2005
__________
Serial No. 109-21
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-Genral Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio ADAM SMITH, Washington
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
RANDY J. FORBES, Virginia JERROLD NADLER, New York
LOUIE GOHMERT, Texas
Raymond V. Smietanka, Chief Counsel
Susan A. Jensen, Counsel
James Daley, Full Committee Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
----------
MARCH 15, 2005
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Ranking Member, Subcommittee
on Commercial and Administrative Law........................... 3
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio.................................................. 4
The Honorable Chris Van Hollen, a Representative in Congress from
the State of Maryland.......................................... 6
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina........................................ 7
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 8
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas............................................. 8
WITNESSES
Mr. Rodd C. Walton, Secretary and General Counsel, Sigarms, Inc.
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. Dennis A. Henigan, Director, Legal Action Project, Brady
Center to Prevent Gun Violence
Oral Testimony................................................. 13
Prepared Statement............................................. 15
Mr. Bradley T. Beckman, Counsel, Beckman and Associates, Counsel
to North American Arms
Oral Testimony................................................. 25
Prepared Statement............................................. 26
Mr. Lawrence G. Keane, Senior Vice President and General Counsel,
National Shooting Sports Foundation, Inc.
Oral Testimony................................................. 27
Prepared Statement............................................. 29
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Chris Cannon, a
Representative in Congress from the State of Utah, and
Chairman, Subcommittee on Commercial and Administrative Law.... 55
Prepared Statement of the Honorable Cliff Stearns, a
Representative in Congress from the State of Florida........... 57
H.R. 1225, the ``Terrorist Apprehension and Record Retention
(TARR) Act of 2005''........................................... 59
GAO Report entitled ``GUN CONTROL AND TERRORISM: FBI Could Better
Manage Firearm-Related Background Checks Involving Terrorist
Watch List Records............................................. 62
The ARMS site description of FN's Five-seveN Pistol.............. 105
H.R. 1136, the ``Protect Law Enforcement Armor (PLEA) Act''...... 108
News Articles for the record offered by the Honorable John
Conyers, Jr., a Representative in Congress from the State of
Michigan, and Ranking Member, Committee on the Judiciary....... 113
Response to Post-Hearing Questions from a Minority Member to
Bradley T. Beckman, Counsel, Beckman and Associates, Counsel to
North American Arms............................................ 133
Article submitted by Lawrence G. Keane, Counsel, Beckman and
Associates, Counsel to North American Arms..................... 138
Op-Ed Article from New York Daily News, Sunday, January 9, 2005,
submitted by Lawrence G. Keane, Counsel, Beckman and
Associates, Counsel to North American Arms..................... 144
Letter from Walter Olson, Senior Fellow, Manhattan Institute for
Policy Research to the Honorable Chris Cannon.................. 145
PROTECTION OF LAWFUL
COMMERCE IN ARMS ACT
----------
TUESDAY, MARCH 15, 2005
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, Hon. Chris Cannon
(Chair of the Subcommittee) presiding.
Mr. Cannon. Good morning, ladies and gentlemen. This
hearing of the Subcommittee on Commercial and Administrative
Law will now come to order to consider today H.R. 800, the
``Protection of Lawful Commerce in Arms Act,'' which was
introduced on February 15 by our colleague from Florida, Mr.
Stearns. It currently has 157 cosponsors, including me.
H.R. 800 addresses abusive lawsuits aimed at the firearms
industry. It provides that a qualified civil liability action
cannot be brought in any State or Federal court. Qualified
civil liability action is defined as a civil action or
proceeding brought by any person against a manufacturer or
seller of firearms or ammunition for damages resulting from the
criminal or unlawful misuse of such products.
There are exceptions, however. The bill does not prohibit
an action against a person who transfers a firearm or
ammunition knowing that it will be used to commit a crime of
violence or a drug trafficking crime or to commit an identical
or a comparable State felony offense. It also does not prohibit
an action brought against a seller for negligent entrustment or
negligence per se.
The bill also includes several additional exceptions,
including one for actions in which a manufacturer or seller of
a qualified product knowingly and willfully violates a State or
Federal statute applicable to sales or marketing when such
violation was a proximate cause of the harm for which relief is
sought. Other exceptions under the bill include one for actions
for breach of contract or warranty in connection with the
purchase of a firearm or ammunition and an exception for
actions for damages resulting directly from a defect in design
or manufacture of a firearm or ammunition when used as
intended. The bill also makes clear that only licensed
manufacturers and sellers are covered by the bill.
Tort law rests on a foundation of personal responsibility.
A product may not be defined as defective unless there is
something wrong with the product rather than with the product's
use. However, in the last several years, some lawsuits filed
against the firearms industry would hold it liable for actions
of those who use their products in a criminal or unlawful
manner. Such lawsuits threaten the historic connection between
tort law and personal responsibility and have forced firearms
manufacturers into bankruptcy, severely curtailing the recovery
available for those asserting traditional claims of product
manufacturing defects.
While some of these lawsuits have been dismissed and some
States have acted to limit them in one way or another, they
continue to be aggressively pursued. In January, the Supreme
Court refused to overturn a decision by the Ninth Circuit Court
of Appeals permitting such frivolous lawsuit against a gun
manufacturer for a crime committed by a third party. The
strategy behind these lawsuits is no secret. One of the
personal injury lawyers suing the firearms industry, John Cole,
told the Washington Post, quote, ``The legal fees alone are
enough to bankrupt the industry.'' Professor David Capel also
stated that the cities suing the firearms industry, quote,
``don't even have to win. All they have to do is keep suing.
They'll kill the industry with the cost of defending all the
lawsuits.''
Lawsuits seeking to hold the firearms industry responsible
for criminal and unlawful use of its products by others are
attempts to accomplish through litigation what has not been
achieved by legislation and the democratic process. As
explained by one Federal judge, quote, ``The plaintiffs'
attorneys simply want to eliminate handguns.'' Taking advantage
of our currently unregulated court system, the personal injury
lawyers are misusing the courts to limit the sale and
distribution of firearms well beyond jurisdictional boundaries.
A lawsuit in a single county of a State could destroy a
national industry, denying citizens everywhere the right to
keep and bear arms, a right guaranteed by the Constitution.
Insofar as these lawsuits have the practical effect of
burdening interstate commerce in firearms, Congress has the
authority to act under the Commerce Clause of the Constitution
as well as the Second Amendment. Such lawsuits also directly
implicate core federalism principles articulated by the Supreme
Court, which has made clear that, quote, ``one State's power to
impose burdens on the interstate market is not only subordinate
to the Federal power over interstate commerce, but it is also
constrained by the need to respect the interests of the other
States.''
The direction of this slippery slope is obvious. If the
judicial system is allowed to eliminate the firearms industry
based on legal theories holding manufacturers liable for the
misuse by others of its products, surely those theories will be
applied to other industries whose products are capable of being
misused. Knives, for example, are intended and used for non-
violent purposes. They are virtually indispensable for eating.
Yet hundreds of thousands of violent crimes every year are
perpetrated with knives.
We have already seen multi-million-dollar lawsuits against
the makers of hamburgers and steaks for causes--or for damages
caused when people abuse those products and overeat. Surely the
manufacturers of steak knives will be sued next when such
knives are used for criminal purposes.
Congress must begin to stem the slide down the slippery
slope. It can do that by fulfilling its constitutional duty and
exercising its authority under the Commerce Clause to prevent a
few State courts from bankrupting the national firearms
industry and denying all Americans their fundamental right to
bear arms. We need to preserve the benefit of American-made
weapons for our soldiers overseas who are so ably defending us
all from terrorism. Let's not allow the American firearms
industry to be bankrupted so we're left to rely on foreign
countries to provide weapons for our own soldiers.
I now yield to Mr. Watt, the Ranking Member of the
Subcommittee, for an opening statement. Mr. Watt?
Mr. Watt. Thank you, Mr. Chairman. I apologize to you and
other Members of the Subcommittee for being a minute or two
late. I actually was trying to get back on my schedule this
morning and run for a change and that threw everything off,
trying to get back on schedule.
I guess I find it interesting that the first hearing that
we are having this year allows me to quote a famous Republican
former President. ``Here we go again.'' Here you go.
Another year of trying to close the courthouse doors to
innocent victims of preventable violence of any kind. Another
year of radically altering and undermining our system of
States' rights, which so many on this Committee have given so
much and so much energy to saying that they support. Another
year of trying to confer sweeping immunity to a single
industry, the gun industry, in this case. Here we go again.
Here we go again.
I'd have to say, Mr. Chairman, that last year's debate on
this bill didn't reveal to me any reason why individuals harmed
by guns that were recklessly placed in the stream of commerce
should not be allowed to seek a remedy from those responsible,
including those whose negligent conduct--negligent conduct--
resulted in dangerous weapons landing in the hands of
criminals. Nor was I convinced that there exists a national
crisis that requires Federal intervention in this matter.
States are and have been perfectly capable, through both their
courts and legislatures, of developing tort principles and
addressing gun policy at a local level.
Finally, I didn't find anything in last year's testimony or
any of the things that I have found out about this bill that
would suggest to me why it would be necessary to single out for
unprecedented protection the entire gun industry, even as the
number of deaths and injuries from gun violence and accidental
shootings has escalated. Under this bill, on one within the gun
industry bears any responsibility, no duty of care for the
misuse of dangerous weapons.
When the industry acts responsibly, there should be no
liability. I agree with that wholeheartedly. But when elements
within the industry act without regard to the safety of our
citizens, those harmed by such indifference or recklessness
should be afforded a remedy.
I don't know what happened to the concept of personal
responsibility, corporate responsibility, our whole theory of
negligence in this country. Our whole theory of tort law in
this country is based on negligence, and I have no idea why one
industry should be exempt from those theories that we have
developed for so long. They are all about personal
responsibility. That's what our whole negligence system is
about.
If any of our witnesses can today address these very basic
and fundamental concerns about this bill, I'm still looking for
enlightenment about it. But I believe that unless and until
these three core issues are adequately addressed and
substantiated, the Federal court, the Federal Government, has
no jurisdiction for barring State courts from providing
appropriate relief to victims of negligent conduct.
We are off and running again. Here we go again, Mr.
Chairman. I yield back.
Can I just add one thing, Mr. Chairman? I want to put in
the record some information here that is just astonishing to
me. This is from the Smith and Wesson SEC filing,\1\ and I'm
quoting this. ``In the 9-month period ended January 31, 2005,
we incurred $4,535 in defense costs net of amounts receivable
from insurance carriers relative to product liability and
municipal litigation. For the 9 months ended January 31, 2005,
we spent $4,150,000 on advertising.'' Put that into this
calculus. Thank you, Mr. Chairman.
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\1\ The information referred to was not available to include in
this hearing.
---------------------------------------------------------------------------
Mr. Cannon. Without objection, that'll be included in the
record.
Would the gentleman yield to a question? How much did they
spend on their insurance premiums, do you know? Does the filing
reveal that?
Mr. Watt. I have no idea, but probably no more than any
other inherently dangerous product maker would be spending on
their insurance. There are some risks of business. You have
insurance on your automobile, probably a lot more than most
people sitting around because people think that you are more
vulnerable, you drive more, you expose yourself to more risks,
you're more valuable, you're more important, and I suspect your
insurance premiums are higher than most of the people sitting
in this audience.
Mr. Cannon. I drive very carefully, so I keep my premiums
down. I don't think these guys control who sues them.
We'd like to welcome Adam Smith from Washington, Steve
Chabot from Ohio, Mr. Van Hollen from Maryland, and Mr. Coble
from North Carolina. Does anyone other than Mr. Smith want to
make an opening statement? Oh, and we've got the gentleman, Mr.
Franks, from Arizona. Would anyone like to make an opening
statement of any sort?
Mr. Chabot. Mr. Chairman, if I could, just very briefly.
Mr. Cannon. Let me, if you don't mind, I'm going to ask Mr.
Smith to go first and then we'll come back to you.
Mr. Chabot. Sure.
Mr. Cannon. Would anyone else like to make a--Mr. Coble?
Okay.
Mr. Smith. It's more of a question just for the witnesses
so that as they're testifying, they can hopefully address it,
and we've sort of gotten this from the two opening statements.
The big question for me is exactly what liability is left.
I mean, the basic notion that if you sell a gun in a perfectly
legal way and basically have no negligence in how you go
through that process, then you should not then be liable if
someone misuses it is something that I support. I think it is
different, frankly, than what went on with the tobacco industry
when they sold a product and misled the public for a good many
years about the dangers. There's no misleading about the
dangers of a firearm. As Mr. Watt himself said, it's fairly
apparent how dangerous it is, so the person who's buying it
knows that.
But in the debate over this issue, I have heard so much
conflicting information on what liability remains, you know,
what negligence can be demonstrated by the person. Certainly,
if they sell to someone who shouldn't have bought a firearm,
someone who is disqualified through the law because they are a
felon, mentally incompetent, or below the age of 18 or the
normal categories, they should be liable.
But there's one specific case that arose not far from my
district, the sniper case out here. The gun that was used in
those crimes was actually purchased in my district, or
actually, I should say, actually came from a store in my
district. It is still unclear how that got to be in the
person's possession because the gun shop has no records. They
have records that they had the guns and then, oops, they're
gone. They have no records of how it actually got to be in
somebody else's hands or even out of their store, for that
matter.
To my mind, that is at least enough of a case of negligence
that you go to court. I mean, you'd have to hear from the jury
and so forth. I do not want to exclude that company from
liability when they had some number of guns that just went
unaccountably missing. That is negligence, to my mind,
depending on the facts. It's at least a case for the jury,
let's put it that way.
And if I could just get some kind of correct answer--I
suspect that I'll get about five different contradictory
answers--as to whether or not this bill would exempt people
like that from liability when there was some clear evidence of
negligence, and you can imagine a variety of other different
negligent circumstances where it at least should be a question
for the jury whether or not this negligence rose to the level
of liability.
I certainly agree with the Chairman's sentiment that if you
sell a legal product without negligence, even if it's
dangerous, it's like an automobile is a good analogy, if you
use it poorly and get in the accident, it shouldn't be the
liability of the manufacturer unless there was some negligence.
But I'm just trying to figure out what the limits are. So if
you could address that issue as you testify, that would be very
helpful to me.
Mr. Cannon. Thank you. The gentleman yields back.
Mr. Chabot, you are recognized for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman. I won't take the 5
minutes. I'll be very brief. I just want to first of all
commend you for holding this important hearing today and to
reiterate my support for this really much-needed piece of
liability reform legislation. I want to commend Mr. Stearns for
offering it.
It's really critical for a number of reasons. It'll protect
really people's Second Amendment rights. You know, we give lip
service to it all the time, but this is one thing, I think,
when we can really stand up for the citizens' Second Amendment
rights, and the firearms industry, I think, has been targeted.
And even if you ultimately prevail in the lawsuit, the
resources that you have to use up and the time, the attorneys'
fees, court costs, all the rest, can be quite sigsnificant and
it can drag on really interminably.
And we also have--I think it's an example of some of the
activist courts, too, in these cases. We have a judiciary which
too often is rewriting the law and legislating from the bench,
and I think this is an example where the activist courts have
gotten too involved. As I mentioned before, even if you win as
a defendant in one of these cases, you can lose.
And you'll have a city which is essentially using what they
might consider to be unlimited resources, but when you consider
many of the cities right now which are in real financial
straits, they'll get involved in one of these lawsuits and it
just drags on and on and on, so you're utilizing the resources
which could much better be used to fill potholes and do other
things which the cities really ought to be about. Instead,
they're suing an industry which I think has really been under
assault for a number of years now.
If citizens are going to be able to actually exercise their
Second Amendment rights, they're going to have to be able to
purchase these weapons and purchase firearms. When you have the
assault that's been on a number of these companies for some
time now, it really does infringe upon those Second Amendment
rights.
So I want to commend you for having this hearing, and
again, strongly urge my colleagues to support this much-needed
legislation. I yield back.
Mr. Cannon. Thank you. Mr. Van Hollen, did you want to take
5 minutes?
Mr. Van Hollen. Thank you.
Mr. Cannon. The gentleman is recognized for 5 minutes.
Mr. Van Hollen. I thank you, Mr. Chairman, and I won't take
the whole 5 minutes. I will be brief.
It's a coincidence that the two new Members, at least on
the Democratic side of the Committee here, are two Members who
were involved, by coincidence, in the sniper shooting, because
while the guns that were used in the sniper shooting may have
been sold in Mr. Smith's district, they were used and with the
result that many people were killed in the district I
represent.
I have attended over the last couple of years a number of
memorial services for the victims. A number of memorials have
been placed in public places in my Congressional district and
other places around the Washington area in memory of the
victims of those shootings.
And I really have many of the same issues Mr. Smith asked
about, although as I read the legislation, it's pretty clear
that that case would not have been able to go forward, a case
that was settled, a case where there was some payment of
damages, I believe in the range of $2 million by the owners of
the store and some monies paid by the manufacturer.
If you look back in the record of this debate in the
Senate, there was an effort in the Senate after the House
passed the bill to attach an amendment that would have made it
clear that under the circumstances of the sales of the guns
used in the Sniper shooting that it could have gone forward. I
think that those of us who have looked at the facts of that
case believe that it was a situation where there was clearly
reckless negligence, negligence on behalf of the gun store.
And I, in reading this and having read the legal opinions
of a number of law firms in town, I think it's quite clear that
if this legislation passes in its current form, those victims
would not have an opportunity to obtain justice and redress
through the courts in this country and they would have had the
courthouse door shut on them.
It's ironic that this piece of legislation was actually
being debated by the House of Representatives about the time
the sniper shootings occurred and it was withdrawn at that time
because people understood that the public wouldn't stand for a
Congress passing a piece of legislation that took away the
rights of the victims. And here we are a couple of years later
when people think memories have faded and there is again,
regrettably, in my view, a piece of legislation which I think
is quite clear would shut the doors of justice to those
victims.
Thank you, Mr. Chairman.
Mr. Cannon. Thank you, and Mr. Coble, did you want to--the
gentleman is recognized for 5 minutes.
Mr. Coble. Mr. Chairman, I will not take the 5 minutes. I
thank you for recognizing me. But not unlike my friend from
North Carolina, the Ranking Member, I want to apologize for my
arrival and to furthermore, Mr. Chairman, apologize for my
abrupt departure because I have an aviation hearing going on as
we speak here.
I just want to state for the record, Mr. Chairman, that if
a manufacturer--strike that. It is my belief that if a
manufacturer develops a lawful product and lawfully markets it
absence negligence, I think that manufacturer should be held
harmless. If, on the other hand, there is negligent conduct
involved, then I think that manufacturer should have to answer
to it.
I don't mean to overly simplify it, but that's my position,
Mr. Chairman, and I yield back.
Mr. Cannon. I thank the gentleman for yielding back. This
may be a moment in history. We've had four people speak and not
go over the time. In fact, all of them were significantly under
the time.
Mr. Watt. Except the Chairman, of course. [Laughter.]
Mr. Cannon. Oh, I didn't keep track. [Laughter.]
The way I read the clock, it was okay. [Laughter.]
But I only said four. I think you were under, too, which
would make it five.
Mr. Watt. I was under.
Mr. Coble. Mr. Chairman, would you yield to me just a
second?
Mr. Cannon. I would certainly yield.
Mr. Coble. I think you and the Ranking Member probably have
wider latitude than the rest of us on your opening statements.
Mr. Cannon. I thank the gentleman.
The Committee is pleased to have the Ranking Member of the
full Committee, Mr. Conyers of Michigan, with us. Did you want
to make a statement, Mr. Conyers?
Mr. Conyers. If I could, and I thank you very much----
Mr. Cannon. The gentleman is recognized for 5 minutes.
Mr. Conyers. --Mr. Chairman. Last week, the GAO issued a
report which concluded that the FBI could better manage its gun
buying records when matching them against lists of suspected
terrorists. In particular, the GAO determined that information
sharing procedures needed to be considerably improved in order
to help Federal counterterrorism officials better track
suspected terrorists who attempt to purchase firearms.
Nor are we here to discuss the two assault weapons used in
unrelated multiple shootings in February. One shooting involved
a Tyler, Texas person and the other took place in Los Angeles,
with assault rifles in both cases. The fact that both shootings
occurred on the same day made the two stories even more
newsworthy, but obviously, not deserving, unfortunately, of a
Congressional response.
Neither have we seen fit to respond to the requests from
law enforcement officials to take appropriate Congressional
action in response to recent introduction of the Five-Seven
handgun, dubbed by some as the ``copkiller'' gun because it is
easily concealable and can penetrate bulletproof vests of law
enforcement officers. The Director of the International
Brotherhood of Police Officers described this new weapon as an
assault weapon that fits your pocket.
And so in the minds of any, any one of the aforementioned
public policy problems should take precedent over the one
before us today because they pose grave risk to human life. And
so the bill that purports to protect our court system, even
though it's not--if or when a frivolous lawsuit is brought
before----
Well, I'll return my time, Mr. Chairman. But I think this
is an incredibly important issue that is before your
Subcommittee and I thank you for the opportunity to discuss it
with you.
Mr. Cannon. I thank the gentleman, and I'm now astounded
that we've had, with possibly the exception of me, although I
didn't look at the clock, everyone spoke for less than 5
minutes and that will allow us to get on--we are joined by the
gentleman from Texas, Mr. Gohmert. Did you want to speak, Mr.
Gohmert?
Mr. Gohmert. If I might.
Mr. Cannon. The gentleman is recognized for 5 minutes----
Mr. Gohmert. Thank you.
Mr. Cannon. --recognizing the trend that we have in place,
Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. I very much
appreciate that and I appreciate the individuals here and their
testimony.
It was mentioned about the shooting in Tyler, Texas. That
happened right outside the courthouse where I worked for a
decade and knew and loved so many of the people there. The
weapon used by the individual regarding a domestic situation
was used outside the courthouse and it was a semi-automatic
weapon. It was not an automatic weapon. It should be noted that
when we toss around the term ``assault weapon'' that any weapon
could be an assault weapon, just like any knife, whether steak
knife or 11-inch butcher knife, could be an assault knife.
Every weapon, no matter what it is, could be an assault weapon.
Congress did respond, at least this one did, immediately,
within a day or two went to the floor of the House and gave a
very moving, heartfelt, at least, tribute to Mark Wilson, who
was the man that had the concealed carry permit who immediately
put himself in danger by drawing a weapon he was lawfully
allowed to have and firing at the individual, the murderer, and
at least drawing his attention away from the others, and, I
believe, saving the life of many other people there.
And because Texas has a concealed carry permit and the
actions of Mark Wilson and the prompt response by law
enforcement after Mark, we did not have another Luby's like we
had years before where nobody had a weapon when a crazy nut
came in and started shooting wildly. Here, we had somebody and
we had a citizenry and a law enforcement that were armed. They
protected the public to minimize the damage that occurred
there, and I thank God for Mark Wilson and law enforcement and
for the laws that made that possible. Thank you.
Mr. Cannon. That was only about two-and-a-half minutes, Mr.
Gohmert. I am pleased. There has got to be some kind of record
for this. I mean, this is an amazing thing. I would remind the
Committee that, generally speaking, we want to get to witnesses
more early, and so as we read our statements, we work with, the
Ranking Member and me, to get issues in and we are going to try
in future hearings to avoid these kinds of--or opening
statements.
But, of course, as the panel and others will recognize,
these are very important issues. They are held very dearly by
everyone here and so we recognize that it may be a slightly
different case.
We now turn to our panel of witnesses. Our first witness is
Rodd Walton. Mr. Walton is the Secretary and General Counsel of
Sigarms, Inc. He's also a major in the United States Army
Reserve, Judge Advocate General Corps. Mr. Walton joined the
military right out of high school in 1984 and he has been in
the military for 21 years--hard to believe at your age. He
recently came off a one-and-a-half-year tour of duty in the war
on terror. In the American Bar Association, Mr. Walton serves
as Chair of the Business and Commercial Law Committee--good. In
the National Bar Association, Mr. Walton serves as Secretary of
the Small Business Law Section.
Our second witness is Dennis Henigan, the Legal Director of
the Brady Center to Prevent Gun Violence in Washington, D.C.,
and the Director of its Legal Action Project. The Legal Action
Project is a national public interest law program which
provides pro bono legal representation to victims of gun
violence and lawsuits against the gun industry. In addition to
representing individual victims of violence, the Legal Action
Project also has represented over two dozen municipalities in
lawsuits seeking to recover the public costs of gun violence.
Our third witness is Bradley T. Beckman of Beckman and
Associates in Philadelphia. For roughly a dozen years, Mr.
Beckman has been National Counsel for North American Arms in
lawsuits brought by various municipalities. North American Arms
is a Utah-based manufacturer of high-quality personal
protection firearms that has been in business for over 30
years. Welcome from Utah.
Our fourth and final witness is Lawrence G. Keane. Mr.
Keane is the Senior Vice President and General Counsel of the
National Shooting Sports Foundation, Inc., the firearm
industry's trade association. He's responsible for all of
NSSF's legal, Government relations, and risk management
functions. Mr. Keane also served on the Board of Directors of
the Firearms Safety Education Foundation, Inc., a nonprofit
501(c)(3) charitable organization dedicated to educating the
public about firearms safety issues.
Without objection, all Members will have 5 days within
which to submit additional material for the record.
Now, it is the practice of the Committee to swear in all
witnesses appearing before it. If you would please stand and
raise your right hand.
Do you swear that the testimony that you are about to give,
that you will tell the truth, the whole truth, and nothing but
the truth, so help you, God?
Mr. Walton. I do.
Mr. Henigan. I do.
Mr. Beckman. I do.
Mr. Keane. I do.
Mr. Cannon. The record will note that the witnesses all
answered in the affirmative. Please be seated.
Now, Mr. Walton, we would like to hear from you for 5
minutes. I don't want to interrupt. We don't want to stop
anybody's train of thought, but I'll tap my pencil on the
podium here when you get at 5 minutes just so you're aware.
There's a little timer in front of you that it's green for 4
minutes, turns yellow for 1 minute, and then turns red at the
end of the 5 minutes. You don't have to stop at that red light,
but just be aware that we'd like to wind down, and then we'll
have plenty of time for questions. Thank you.
Mr. Walton?
TESTIMONY OF RODD C. WALTON, SECRETARY AND
GENERAL COUNSEL, SIGARMS, INC.
Mr. Walton. Mr. Chair, thank you for having me here, and
keeping with your time limit and the spirit of the meeting and
being timely, I'll do my best.
Chairman Cannon, Members of the Committee, my name is Rodd
Walton. I'm Secretary and General Counsel of Sigarms and its
affiliates and subsidiaries in the United States. I am here
today to ask you to support H.R. 800.
Since 1853, Sigarms and related companies, together with
our predecessors, have been manufacturing small arms for
military, law enforcement, and commercial use. Switzerland's
Federal Ministry of Defense challenged a Swiss wagon factory to
make a rifle for the Swiss army. Accepting the challenge, and
after receiving the contract, the wagon company changed its
name to Swiss Industrial Company--I'm not going to try to speak
it in German, but it's currently world known as Sigarms. SIG
brought our firearms industry to Virginia in 1985 and then
moved to New Hampshire, where we call home today.
The foundation and thrust of Sigarms' business has been and
will continue to be support of military and law enforcement
customers worldwide. The list of Sigarms' customers in the
United States reads like a Who's Who of law enforcement.
Sigarms pistols are carried by the Department of Homeland
Security, the U.S. Coast Guard, the Federal Air Marshals, the
U.S. Secret Service, State police agencies from Delaware,
Massachusetts, Michigan, New Jersey, Virginia, as well as the
Texas Department of Safety and the Texas Rangers, just to name
a few. And, SIG Sauer pistols are carried by many in combat,
most notably the U.S. Navy Seals. Today, about 65 percent of
the output of the New Hampshire-based manufacturing facility is
devoted to supplying firearms and training to military and law
enforcement.
Since 1988--excuse me, '98, we at Sigarms have been
defending ourselves against a multitude of lawsuits brought by
Government entities and organizations and individuals seeking
to blame the firearms industry, including SIG, for criminal and
wrongful misuse of firearms in the United States. To blame
Sigarms for the criminal misuse of firearms that are lawfully
manufactured and sold is unjust. It is also threatening to our
very existence. We have been fighting for our very survival
against these lawsuits, diverting time, money, and other of our
limited resources to defend ourselves.
As I walk through the plant, employees stop to ask me,
``How's the war going?'' The war that the employees are asking
about is not the Iraqi war. It's the war we are fighting
against plaintiffs filing junk and frivolous lawsuits against
the firearms industry, spurred on by plaintiffs' trial
attorneys.
Sigarms and many others in the industry have been fighting
for 10 years now, beginning with Hamilton v. Accu-Tek, in which
the plaintiffs claimed that we manufacturers negligently
distributed firearms. While the jury found the case--some of
the manufacturers to be liable, the verdicts were properly
reversed on appeal. The same plaintiffs' lawyers decided to
bring a similar case before the same trial judge. They brought
the NAACP case based on similar theories that had already been
rejected by the U.S. Court of Appeals. While we are resolved
not to wear down, there is a cost to this war.
Beyond these lawsuits draining our already fragile national
economy and littering our already overburdened court system,
this war is hindering companies like Sigarms from engaging in
legitimate business, making lawful products. The existence of
these lawsuits thwarts our ability to raise new capital, borrow
money, establish credit, obtain insurance, attract new
employees, and retain valued employees in the same manner that
companies of other industries are able to do without these
attacks.
These lawsuits are dangerous, and not only to us as
manufacturers of lawful products in other industries. Where
will this end? Should General Motors be liable for an
aggressive driver who crashes into another car? If the theory
of these cases are widely applied, it could result in the
bankruptcy of countless companies and the displacement of
innumerable amount of American workers.
I come here today to ask you to support H.R. 800. This bill
would protect legitimate businesses, such as Sigarms, that
provide hundreds of thousands of jobs for our citizens--
assemblers, polishers, tool and die makers, cafeteria workers,
and people who fill our snack vending machines.
If enacted into law, this Act would preempt State and local
government entities and other parties from bringing aggregate
lawsuits against the firearms industry as a way to circumvent
our legislatures. It would promote interstate and foreign
commerce of small arms. A majority of the States--in fact, over
30--have passed legislation of some type that insulate the
firearms industry from these types of lawsuits. However, we
need and are seeking passage of Federal law that would afford
protection to the industry on a national level.
I think my time is about up, so I will yield to the chair.
Thank you, sir.
Mr. Cannon. Thank you very much.
[The prepared statement of Mr. Walton follows:]
Prepared Statement of Rodd C. Walton
Chairman Cannon, Members of the Committee, my name is Rodd Walton.
I am Secretary and General Counsel of SIGARMS, Inc. and its affiliates
and subsidiaries in the United States. I am here today to ask you to
support H.R. 800.
Since 1853, SIGARMS related companies, together with our
predecessors, have been manufacturing small arms for military, law
enforcement and commercial use. Switzerland's Federal Ministry of
Defense challenged a Swiss wagon factory to make a rifle for the Swiss
Army. Accepting the challenge and after receiving the contract the
wagon company changed its name to the Swiss Industrial Company--
Schweizerische Industrie-Gesellschaft known worldwide as SIG. SIG
brought our firearms business to Virginia in 1985 and then moved it to
New Hampshire, where we call our home today.
The foundation and thrust of SIGARMS business has been and will
continue to be support military and law enforcement customers
worldwide. The list of SIGARMS customers in the United States reads
like a Who's Who of law enforcement. SIG SAUER pistols are carried by
the Department of Homeland Security, The U.S. Coast Guard, The Federal
Air Marshalls, The U.S. Secret Service, state police agencies from
Delaware, Massachusetts, Michigan, New Jersey, Virginia as well as the
Texas Department of Public Safety and the Texas Rangers just to name a
few. And SIG SAUER pistols are carried by many in combat and most
notably by the U.S. Navy SEALs.
Today, approximately 65% of the output at the New Hampshire-based
manufacturing facility is devoted to supplying firearms and training to
military and law enforcement.
Since 1998, we at SIGARMS have been defending ourselves against a
multitude of lawsuits brought by government entities, organizations and
individuals seeking to blame the firearms industry, including SIGARMS,
for the criminal and wrongful misuse of firearms in the United States.
To blame SIGARMS for the criminal misuse of firearms that are lawfully
manufactured and sold is unjust. It also is threatening to our very
existence. We have been fighting for our very survival against these
lawsuits, diverting time, money and other of our limited resources to
defend ourselves.
As I walk through our plant, employees stop to ask me how the war
is going. The war that our employees are asking about is not the Iraqi
War; it is the war we are fighting against plaintiffs filing junk and
frivolous lawsuits against the firearms industry, spurred on by
plaintiffs' trial lawyers.
SIGARMS and many others in the industry have been fighting for ten
years now, beginning with the Hamilton v. Accu-Tek case, in which the
plaintiffs claimed that we manufacturers negligently distributed our
firearms. While the jury in that case found some of the manufacturers
liable, the verdicts were properly reversed on appeal. The same
plaintiff's lawyer decided to bring a similar case before that same
trial judge. They brought the NAACP v. A.A. Arms, Inc. case based on
similar theories that had already been rejected by the U.S. Court of
Appeals. While we are resolved not to wear down, there is a cost to
this war.
Beyond these lawsuits draining our already fragile national economy
and littering our already over-burdened court system, this war is
hindering companies like SIGARMS from engaging in a legitimate
business, making a lawful product. The existence of these lawsuits
thwarts our ability to raise new capital, borrow money, establish
credit, obtain insurance, attract new employees, and retain valued
employees in the same manner that companies in other industries are
able to do without these attacks against their industry.
These lawsuits are dangerous not only to us but also to
manufacturers of lawful products in other industries. Where will it
end? Should General Motors be liable for an aggressive driver who
crashes into another car? If the theory of these cases is widely
applied, it could result in the bankruptcies of countless companies and
the displacement of innumerable amount of American workers.
I come here today to ask you to support H.R. 800. This Bill would
protect legitimate businesses, such as SIGARMS, that provide hundreds
of thousands of jobs for our citizens, assemblers, polishers, tool and
die makers, cafeteria workers and the people who fill our snack vending
machines.
If enacted into law, this Act would preempt state and local
government entities and other parties from bringing aggregate liability
lawsuits against the firearms industry as a way to circumvent our
legislatures. It also would promote interstate and foreign commerce of
small arms. A majority of the states--in fact, over 30 states--have
passed legislation of some type that insulate the firearms industry
from these types of suits. However, we need and are seeking passage of
Federal law that would afford protection to the industry on a national
level.
Let me emphasize that this legislation would not provide the
sweeping immunity that many of its opponents suggest. This Bill would
not protect gun manufacturers from liability claims. Instead, it would
stop lawsuits against our industry that are based on the criminal
misuse of lawfully distributed products and premised on theories such
as public nuisance and market share liability.
If passed, this Bill would help to set a much needed precedent that
frivolous and junk suits like these should be stopped. If passed, it
would prevent the usurpation of power by the judicial branch from the
legislative branch. For it is the legislature that makes laws on how we
should manufacture, design, and sell firearms, not the courts. If not
stopped, these lawsuits clearly will threaten other legitimate and
vital industries in America.
This Bill if enacted would restore the rule of law and protect
manufacturers and sellers in the firearms and ammunition industry who
act legally from being harassed by frivolous and junk lawsuits.
However, the Bill ensures that if a seller provides a firearm and the
seller knows or should have known that the firearm would be used
negligently, that seller would be liable.
We are dutifully helping to defend our country when attacked and in
times of war. I ask that each of you help us in our time of war so that
we can focus on making the best firearms available for our men and
women in uniform and law enforcement.
In conclusion, it makes no difference that SIGARMS or other firearm
manufacturers make high quality firearms that enjoy excellent records
of safety. It makes no difference that we and our industry are
committed to continuing our efforts, individually and together with
others, to increase awareness of the issues related to the safe
handling and storage of firearms and the criminal acquisition of
firearms. In makes no difference that the firearms industry is one of
the most patriotic and staunchly pro-law and order industries in the
corporate landscape. These frivolous and junk lawsuits are being
brought to exert undue pressure on our industry to settle or cave under
the massive weight of litigation. Without this Federal legislation, the
survival of SIGARMS, our firearms and ammunition industries, and all of
the jobs, taxes, and commerce that we contribute to the U.S. economy
are threatened.
Mr. Cannon. Mr. Henigan, you are recognized for 5 minutes.
TESTIMONY OF DENNIS A. HENIGAN, DIRECTOR, LEGAL ACTION PROJECT,
BRADY CENTER TO PREVENT GUN VIOLENCE
Mr. Henigan. Thank you, Mr. Chairman, and thank you to the
entire Subcommittee for this opportunity to appear today.
Let me state my position on this bill in the must
unequivocal terms. This bill is nothing but a special interest
giveaway to the gun lobby and a shameful attack on the legal
rights of gun violence victims.
As an attorney at the Brady Center, I have had the honor to
represent on a pro bono basis gun violence victims whose rights
would be trampled by this legislation, and I have a difficult
time explaining to those clients why we are here today. As
Ranking Member Conyers noted, just recently we have heard that
suspected terrorists repeatedly have been able to buy guns over
the counter in our country. The Department of Homeland Security
recently issued an alert about that Belgian gun manufacturer
that is selling a handgun in this country that shoots bullets
that can penetrate police body armor.
And what is the response of the U.S. Congress to these
recent threats to our national safety and security? Is it to
move quickly to prevent terrorists from buying guns over the
counter? Is it to ban copkiller handguns? No. It is to hold
hearings on a bill to give special legal protection to the most
reckless gun sellers in America.
Mr. Chairman, this Congressional response defies rational
explanation. I regret to say the only explanation is the
overarching power of the gun lobby.
Now, the proponents of this bill say it affects only
frivolous lawsuits brought to bankrupt the gun industry. This
assertion is insulting to the victims who have sought to assert
their legal rights against this industry and it also grossly
misrepresents what this bill does.
Consider first the lawsuit brought by Brady Center
attorneys for New Jersey Police Officers David Lemongello and
Ken McGuire. These two officers were seriously wounded in a
shoot-out with an armed robbery suspect, and the Ruger pistol
used by the shooter was sold by a West Virginia pawn shop
called Will's Jewelry and Loan. It was one of 12 handguns sold
by Will's in a single transaction 6 months before the shooting
to a gun trafficking team. A woman named Tammi Lea Songer acted
as a straw buyer for a gun trafficker, James Gray. Gray pointed
out the guns he wanted. Songer paid the clerk $4,000 in cash.
It was perfectly obvious those guns were headed to the illegal
market.
So the officers brought a civil damages suit against Will's
and a West Virginia judge determined that the suit stated
legally valid claims. If this legislation had passed last year,
the judge's decision would have been nullified and the police
officers' suit would have been dismissed. But fortunately, the
bill failed. The suit went forward. And in June of last year,
Will's settled the suit with a payment of $1 million in damages
to those two brave police officers. And as a result of this
suit, that gun shop no longer engages in large-volume sales of
handguns.
So because this bill failed last Congress, two brave police
officers received a measure of justice, the pawn shop was held
accountable for this reckless sale, and the pawn shop now
operates more responsibly than it did before, and I might add,
no one went bankrupt.
But consider also the case brought by Brady Center lawyers
for the victims of the D.C. area sniper shootings against
Bull's Eye Shooter Supply, the gun shop in Tacoma, Washington,
that Mr. Smith referred to, where the gun that was used in that
shooting mysteriously disappeared from that gun shop. And it
turned out that in the previous 3 years, some 238 other guns
had mysteriously walked away from that gun shop.
So eight D.C. sniper victims and their victims brought a
lawsuit with our help seeking damages against Bull's Eye, and
we also sued Bushmaster, the manufacturer of the assault rifle,
because it sold military-style assault rifles to the general
public while doing absolutely nothing to ensure that the
retailers it chose to do business with were responsible
corporate citizens.
Well, in June of 2003, a Washington State trial judge ruled
the victims' claims were legally valid against both of those
defendants, but if this immunity bill had passed, Mr. Chairman,
it would have required dismissal of that lawsuit, even though a
Washington State court had already held it consistent with
accepted principles of law. And in the last Congress, we had
letters from former White House Counsel Lloyd Cutler as well as
noted attorney David Boies analyzing exactly the question Mr.
Smith raised and concluding that, in fact, this would bar that
lawsuit.
Mr. Smith. Mr. Chairman, I'm sorry to break the flow here,
but could I ask a question on that?
Mr. Chabot. [Presiding.] Yes, if you will make it quick.
Mr. Smith. In reading the bill, it says that the immunity
shall apply but shall not include an action brought against a
seller for negligent entrustment or negligence per se. I guess
given that exception, you're telling me you couldn't make a
case for negligence in that situation?
Mr. Henigan. That's right, Mr. Smith. Neither of those
exceptions would have applied, and let me explain why. First of
all, negligence per se would have required a showing that the
gun shop violated a law leading to the shooting that occurred.
That's what negligence per se requires, as opposed to ordinary
negligence, Mr. Smith, which simply requires a violation of the
common law duty of ordinary care.
In every State that adopts negligence per se, you have to
show a violation of a law and then you have to show the causal
link between the shooting and the violation. Here, what we had
was a situation in which----
Mr. Smith. You could go on, but that answers the question.
Mr. Chabot. Okay, and if you wouldn't mind wrapping up your
testimony, Mr. Henigan.
Mr. Henigan. Okay.
Mr. Chabot. Your 5 minutes are up.
Mr. Henigan. I'd be happy to do that. These cases, Mr.
Chairman, show how the proponents of this bill have
misrepresented what the bill does, because these are two cases
that were not frivolous. They were two cases not about trying
to hold gun sellers responsible simply because a criminal uses
the gun to shoot somebody, but to hold them responsible for
their own conduct.
I would suggest, Mr. Chairman, that if we are going to be
in the business of immunizing from civil liability the most
reckless gun sellers among us, that is not only going to
deprive gun violence of their legal rights, it's going to make
us all more unsafe. It's going to mean more guns on the
streets, and for those reasons, we urge that this bill be
defeated. Thank you.
Mr. Chabot. Thank you, Mr. Henigan.
[The prepared statement of Mr. Henigan follows:]
Prepared Statement of Dennis A. Henigan
Chairman Cannon, Ranking Member Watt, Members of the Subcommittee,
I appreciate this opportunity to appear before you today. On behalf of
Jim and Sarah Brady, and their organizations, let me state my position
on H.R. 800 in the most direct and unequivocal terms: this bill is
nothing but a special interest giveaway to the gun lobby and a shameful
attack on the legal rights of innocent victims of gun violence.
As Director of the Legal Action Project at the Brady Center to
Prevent Gun Violence,\1\ I have the honor to represent, on a pro bono
basis, innocent victims of gun violence whose rights would be trampled
by this legislation. I have a difficult time explaining to these
clients, who have personally faced the horror of gun violence, why the
response of the United States Congress to their personal tragedies, and
to the continuing national tragedy of gun deaths and injuries, is to
give special legal protection to the most reckless members of the gun
industry.
---------------------------------------------------------------------------
\1\ The Brady Center, and its affiliate, the Brady Campaign to
Prevent Gun Violence united with the Million Mom March, are the largest
organizations dedicated to creating an America free from gun violence.
---------------------------------------------------------------------------
Just last week, the GAO reported that suspected terrorists, who are
not permitted to board airplanes or cruise ships, repeatedly have been
allowed to purchase guns over-the-counter.
The Department of Homeland Security recently issued an alert to all
its law enforcement personnel about a Belgian gun maker selling a
handgun in America that shoots bullets that penetrate police body
armor.
Another gun maker is selling .50 caliber sniper rifles with such
extraordinary range and power that they can bring down airplanes.
And gun deaths in America, after a seven-year decline, have started
to rise again and are now over 30,000 a year. In the last two weeks,
our Nation has learned, once again, that no one is truly safe from gun
violence: a judge's family slain in Chicago, a judge and two others
murdered in an Atlanta courtroom and, on Saturday, seven worshippers
shot and killed while attending church services in Milwaukee.
What is the response of the United States Congress to these clear
and present threats to our national safety and security? Is it to move
quickly to strengthen the Brady background check system to stop
terrorist suspects from buying guns? Is it to ban cop-killer guns and
terrorist sniper rifles? No. It is to hold hearings on a bill that
would protect from legal accountability the most reckless gun sellers
in America.
Mr. Chairman, this Congressional response is beyond rational
explanation. I suggest the only explanation is the power of the gun
lobby.
GUN INDUSTRY IMMUNITY LEGISLATION IS A SHAMEFUL ATTACK ON THE LEGAL
RIGHTS OF GUN VIOLENCE VICTIMS
The proponents of this legislation claim it would block only
``frivolous'' lawsuits against gun sellers brought only to bankrupt the
gun industry. Not only is this assertion a gross misrepresentation of
the bill, it also is an insult to gun violence victims who have sought
justice in the courts - justice that would be denied if this bill
became law.
This legislation would provide legal immunity in many cases to
grossly irresponsible gun dealers who supply the criminal gun market,
as well as to manufacturers of defectively designed firearms. It would
throw out of court innocent victims of gun violence, even where courts
have found their cases justified by general and established principles
of law. Never before has a class of persons harmed by the dangerous
conduct of others been so wholly deprived of the right to legal
recourse. As Senator Mike DeWine (R-Ohio) stated so eloquently in
opposing this legislation of the Floor of the United States Senate a
year ago: ``I oppose this bill because...it singles out one particular
group of victims and treats them differently than all other victims in
this country...It denies them their access to court.''
When this bill was debated in the last Congress, two lawsuits, then
pending in the courts, were at the center of the debate. Lawyers at the
Brady Center represented the victims in both cases. Had this
legislation been passed into law last year, these lawsuits would have
been blocked.
Gun Industry Immunity Legislation Would Have Deprived Two New Jersey
Police Officers of their Legal Rights Against a Reckless West
Virginia Pawnshop
The first suit had been filed by two brave New Jersey police
officers, David Lemongello and Ken McGuire. Almost two years ago,
Officer Lemongello testified before this Subcommittee and told their
story. In January of 2001, Dave Lemongello was on a stakeout of a gas
station in Orange, New Jersey that had been the target of several armed
robberies. He spotted an individual walking near the station who
matched the description of a suspect in the robberies. When the officer
approached, the individual, career criminal Shuntez Everett, opened
fire with a Ruger pistol. Lemongello was hit three times, fell to the
ground, and radioed for help. Officer McGuire responded, chased Everett
into a nearby backyard, and the two exchanged fire. McGuire also was
seriously wounded, but was able to return fire. Everett died from his
wounds. The shootings ended the police careers of the two officers.
How was a convicted felon like Shuntez Everett able to obtain a
handgun? It turned out that the gun used in the shooting was one of
twelve handguns purchased from a West Virginia pawnshop six months
before by a gun trafficking team. Tammi Lea Songer, acting as a straw
purchaser for gun trafficker James Gray, paid $4,000 in cash for the
guns, after Gray pointed out which guns he wanted. The pawnshop, Will
Jewelry and Loan in Charleston, West Virginia, completed the sale, even
though it was obvious that the handguns were headed directly into the
illegal market. Indeed, the sale was so suspicious that Will reported
it to ATF the next day, long after the shop had pocketed the profits
and the guns were headed to New Jersey. Ironically, another one of the
twelve guns was taken by Ken McGuire from a criminal suspect months
before the gas station shooting. Because of the recklessness of a West
Virginia gun dealer, Orange, New Jersey became a more dangerous place
and the careers of two police officers were ended.
We represented Officers McGuire and Lemongello in a civil damages
lawsuit against Will's pawnshop. The suit charged the pawnshop with
negligence, and contributing to a public nuisance, in the sale of guns,
creating a foreseeable risk that the guns would be used in criminal
activity. In March of 2003, Judge Irene Berger of the Kanawha County
Circuit Court denied Will's motion to dismiss our case, finding that
the officers had stated a legally valid claim under general principles
of West Virginia law. If the last Congress had enacted the predecessor
of H.R. 800, Judge Berger's ruling would have been superceded and
Officers McGuire and Lemongello would have been denied their day in
court.
Because gun industry immunity legislation was defeated in the
Senate a year ago, the case against Will's pawnshop went forward. In
June of last year, Will's settled the case by paying $1 million in
damages to the two officers. As a result of the suit, the pawnshop
changed its policies and now no longer engages in large-volume gun
sales. Two other gun dealers in the Charleston area have adopted
similar policies.
I ask the Subcommittee to consider the outcome of this lawsuit. For
these two brave police officers, justice was done. Will's pawnshop was
properly held accountable for its reckless sale to a gun trafficking
team and it now operates more responsibly. And no one declared
bankruptcy. This outcome was possible only because this special
interest immunity legislation did not become law.
Gun Industry Immunity Legislation Would Have Deprived the DC-area
Sniper Victims of Their Legal Rights Against a Reckless
Washington State Gun Dealer and the Assault Weapon Manufacturer
that Supplied It
A second lawsuit that would have been blocked by this legislation
is the civil damages action brought by the victims of the DC-area
sniper shootings. Certainly no one on this Subcommittee will ever
forget the paralyzing fear inflicted on this community by the snipers
John Lee Muhammad and Lee Boyd Malvo in the Fall of 2002. For some
families, that fear became tragedy, as 10 people were killed and four
more injured by the snipers. When the snipers were arrested, they were
found with the Bushmaster XM-15 assault rifle that had been used in the
shootings. The gun was traced back to Bull's Eye Shooter Supply, a
Tacoma, Washington gun shop. Incredibly, though, Bull's Eye had no
record of what happened to the gun. The shop had no record of sale, no
record of a background check, and had not reported the gun lost or
missing. The gun had mysteriously disappeared. Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) audits showed that Bull's Eye
had mysteriously ``lost'' 238 other guns in a three-year period, an
average of more than one gun missing every week. Bull's Eye was one of
the most irresponsible gun dealers in the Nation. It ranked in the top
.27% of gun dealers nationwide in number of missing guns and in the top
1% in the number of guns traced to crime.
Neither Malvo nor Muhammad could legally have purchased a gun.
Malvo was a juvenile; Muhammad had a disqualifying domestic violence
restraining order on his record. Only through the gross negligence of
Bull's Eye could they have obtained the Bushmaster assault rifle. The
Brady Center represented eight of the sniper victims and their families
in a lawsuit against Bull's Eye, charging that the shop's negligence
put a deadly assault rifle in the hands of the killers. We also sued
Bushmaster, the manufacturer of the gun, on the ground that companies
that make high-firepower assault weapons have a special duty to ensure
that their retailers are responsible corporate citizens. Bushmaster did
not even require its retail dealers to report to it the results of ATF
audits, which would have revealed Bull's Eye's chronic problem of
``missing'' guns. Indeed, even after the press reported the gun shop's
record, Bushmaster stated that it still considered Bull's Eye a ``good
customer''.
In June of 2003, a Washington State trial judge denied motions to
dismiss by both Bull's Eye and Bushmaster, deciding that the victims'
claims were legally valid under general principles of Washington State
law. The Washington State Court of Appeals denied Bushmaster's appeal
of this ruling.
As former White House Counsel Lloyd Cutler concluded, after
conducting his own independent analysis, the immunity bill that reached
the Floor of the Senate in the last Congress would have superceded the
judge's ruling and required the sniper case to be dismissed. Because
the legislation was defeated, however, the lawsuit brought by the
sniper victims went forward. In September of last year, the parties
reached a settlement, resulting in the payment, by both Bull's Eye and
Bushmaster, of a combined total of $2.56 million in damages to the
victims. Bushmaster also agreed in the settlement to make its dealers
aware of programs to encourage safe sales practices by gun retailers -
something the company had never done before.
Again, consider the outcome of this lawsuit. The sniper victims
received justice. Bull's Eye and Bushmaster were made accountable for
their shoddy business practices. And, again, no one declared
bankruptcy.
No one can seriously argue that these were ``frivolous'' lawsuits,
and yet they would have been blocked by the immunity legislation. It is
hardly surprising that in February of last year, Henry Cohen, a 28-year
veteran of the Congressional Research Service and the author of a
report on gun industry immunity legislation, stated ``it does not
appear the bill would be limited to frivolous lawsuits. That's my
neutral assessment.'' \2\
---------------------------------------------------------------------------
\2\ Steve Volk, Specter Shoots Blanks, Philadelphia Weekly,
February 18, 2004.
---------------------------------------------------------------------------
Gun Industry Immunity Legislation Would Protect a Careless Gun
Manufacturer that Hired Criminals and Allowed Them to Walk Away
with Guns
H.R. 800 would also affect currently pending cases brought by gun
violence victims. An example is the lawsuit brought by the family of a
young man named Danny Guzman, an innocent bystander who was shot on the
street in Worcester, Massachusetts on Christmas Eve in 1999. After the
shooting, the loaded gun used in the shooting was found behind an
apartment building by a four-year-old child. The gun had no serial
number.
Police investigators determined that the gun was one of several
stolen from Kahr Arms, a Worcester gun manufacturer, by Kahr's own
employees who were hired despite their long criminal records. One of
the thieves, Mark Cronin, had been hired by Kahr to work in its plant
despite his history of crack addiction, theft to support that
addiction, alcohol abuse and violence, including several assault and
battery charges. Cronin had been able to walk out of the factory with
stolen guns, even before they had been stamped with serial numbers.
Cronin told an associate that he takes guns from Kahr ``all the time''
and that he ``can just walk out with them.'' Cronin later pled guilty
to the thefts. The investigation also led to the arrest of another Kahr
employee, Scott Anderson, who also had a criminal history and who pled
guilty to stealing guns from Kahr. At least fifty Kahr firearms
disappeared from its manufacturing plant in a five-year period.
Worcester Police Captain Paul Campbell classified the record keeping at
the Kahr facility as so ``shoddy'' that it was possible to remove
weapons without detection.
Brady Center attorneys represent Danny Guzman's family in a
wrongful death suit against Kahr arms, charging Kahr with negligence in
completely failing to screen its employees for criminal history and in
maintaining a security system so inadequate that employees repeatedly
were able to walk out of the plant with unserialized guns. In April,
2003, a Massachusetts trial judge denied Kahr's motion to dismiss the
suit, finding it supported by general principles of Massachusetts law.
It is now in pretrial discovery. Had immunity legislation been passed,
the ruling of the Massachusetts court would have been nullified and
Danny Guzman's family would be denied the right to justice against a
gun maker that allowed drug criminals to ``help themselves'' to free
lethal weaponry.
gun industry immunity legislation would be a ``breathtakingly radical''
revision of liability law for the benefit of a single industry
Far from affecting only ``frivolous'' lawsuits, H.R. 800 would
exempt the gun industry from the oldest principle of our civil
liability law: that persons, or companies, who act negligently should
be accountable to the foreseeable victims of their negligence. Indeed,
in the last Congress, over sixty law professors, from across the
country, joined a letter calling the legislation ``breathtakingly
radical'' because it ``affords to a handpicked few - those who make,
distribute, and sell guns - special protection against the most
commonplace, long-established form of tort liability: accountability to
the standard of care required by principles of negligence.'' The
professors called the immunity bill ``one of the most radical statutory
revisions of the common law of torts that any legislature - federal or
state - has ever considered, let along passed.''
Proponents of this legislation try to obfuscate its radicalism
through arguments that simply misstate the law.
First, they assert that it is unfair to hold the seller of a
product responsible for the conduct of a criminal. However, the cases
brought by Officers McGuire and Lemongello and the sniper victims did
not seek to hold the defendant gun sellers liable simply because guns
they sold were used by criminals. Rather, these victims sought to hold
the gun sellers liable for their own irresponsible conduct that enabled
criminals to be armed and to commit violent crimes. The courts in West
Virginia and Washington State based their rulings on the longstanding
legal doctrine that a defendant can be liable when his own negligent
conduct creates a foreseeable risk that a third party will commit a
criminal act. Courts, for example, have applied this doctrine to hold
landlords liable when their failure to secure their buildings allows
criminals to victimize their tenants. It has been applied to drivers
who leave their keys in the ignition in high-crime areas, allowing
thieves access to a car that is then used to inflict injury on others.
Courts in these cases are holding the landlords and the drivers liable
for their own negligence that enabled someone else to commit a criminal
act.
Second, proponents of the bill argue that it is unfair to hold a
gun company liable if its product, and its conduct, are entirely legal.
This argument confuses criminal liability, which requires a showing of
illegal conduct, with civil liability, which does not. The issue in a
civil negligence case is whether the defendant has acted with
reasonable care, not whether the defendant has violated a statute. For
example, when a doctor leaves forceps in a surgical patient, he can be
liable for his failure to use reasonable care. There is no requirement
that his conduct violate a statute. It is particularly telling that the
exception from immunity in H.R. 800 for illegal conduct applies only
where a gun manufacturer ``knowingly violated'' a State or Federal gun
statute. In other words, under this bill, a gun company is immunized
from liability even if it has violated the law, as long as the company
can demonstrate its ignorance of the law. It is also telling that the
proponents of gun industry immunity opposed, and defeated, an amendment
offered last year by Senator Levin (D-Mich.) that would have permitted
lawsuits where a gun injury or death was caused by ``grossly negligent
or reckless'' conduct by a gun company. Can there be any doubt that the
purpose of this legislation is to protect gun manufacturers and dealers
from civil liability, even if their conduct has been grossly negligent,
reckless or even illegal?
Third, the legislation's supporters assert that they are merely
asking the Congress to do what over 30 states have already done. It is
flatly untrue that over 30 states have enacted radical legislation of
this kind. The vast majority of state immunity statutes apply only to
suits brought by local governments and have no effect on the legal
rights of individual gun violence victims. In fact, only five states
have enacted legislation that limits the legal rights of individual gun
violence victims to the extent of H.R. 800. For those in Congress who
regard themselves as guardians of state prerogatives against federal
encroachment, it is fair to ask: Why should Congress override the
decisions of 45 states not to strip away the legal rights of gun
violence victims?
In virtually all states, victim claims against gun sellers are
judged by the courts according to age-old principles of law that apply
to everyone else. H.R. 800 is an effort by the United States Congress
to impose a special set of legal rules on state courts that apply only
to suits against gun companies. This bill is the worst form of special
interest legislation. Its passage would be a tribute to the power of
the gun lobby and an embarrassment to the country.
GUN INDUSTRY IMMUNITY LEGISLATION WOULD ENDANGER COMMUNITIES BY
DESTROYING A STRONG INCENTIVE FOR GUN SELLERS TO BEHAVE RESPONSIBLY
Mr. Chairman, irresponsible conduct by gun sellers has tragic real-
world consequences. As the Brady Center lawsuits dramatically show,
reckless gun sellers put guns into the hands of criminals and endanger
innocent lives. ATF has found from its own gun trafficking
investigations that licensed gun dealers are the largest single source
of guns trafficked into the underground market.\3\ Because of
irrational statutory limitations on its enforcement powers, and limited
resources, ATF is hampered in its efforts to ensure that gun dealers
obey the law. The Office of the Inspector General of the Justice
Department recently estimated that, at ATF's current rate of
inspections, it will take the Bureau twenty-two years to inspect all of
the approximately 100,000 current federal firearms licensees.\4\ When
ATF does inspect dealers, violations of the law often are found, but
severe statutory constraints on ATF's license revocation powers make it
difficult for the Bureau to take meaningful action. According to the
Inspector General, in FY 2003, ATF found that 1,812 of its inspections
had revealed violations, with an average of over 80 violations for each
inspection. However, ATF had issued only 54 notices of license
revocation.\5\
---------------------------------------------------------------------------
\3\ Following the Gun: Enforcing Federal Firearms Laws Against
Firearms Traffickers, Bureau of Alcohol, Tobacco and Firearms (June
2000), at 13.
\4\ Inspections of Firearms Dealers by the Bureau of Alcohol,
Tobacco, Firearms and Explosives, Report No. I-2004-005, U.S. Dept. of
Justice Office of the Inspector General (July 2004), at iii.
\5\ Id. at vi.
---------------------------------------------------------------------------
The National Rifle Association has worked for years to weaken ATF's
enforcement of federal gun laws. It has been tragically successful in
this endeavor, by limiting ATF's legal authority and its resources. As
a result, it is all the more important to maintain a strong civil
liability system to give gun sellers a powerful incentive to behave
responsibly. One of the recognized purposes of civil liability is to
encourage individuals and companies to use reasonable care to prevent
injury to others by ensuring that wrongful and dangerous conduct will
result in damages liability. Having weakened ATF's enforcement powers,
now the gun lobby seeks to remove the only remaining incentive for gun
sellers to consider public safety in their business practices. The
importance of civil liability was noted by former gun industry insider
Robert Ricker, who wrote in a sworn declaration that ``until faced with
a serious threat of civil liability for past conduct, leaders in the
industry have consistently resisted taking constructive voluntary
action to prevent firearms from ending up in the illegal gun market.''
\6\
---------------------------------------------------------------------------
\6\ Mr. Ricker is a former NRA lawyer and former Executive Director
of the American Shootings Sports Council, an industry trade
association. His revelations about the gun industry are discussed in
greater depth in the attached Brady Center special report, Smoking
Guns: Exposing the Gun Industry's Complicity in the Illegal Gun Market,
which details much of evidence against the gun industry uncovered in
litigation.
---------------------------------------------------------------------------
Far from pursuing legislation to strengthen ATF, proponents of
immunity in Congress would rather reassure reckless gun sellers that
they need no longer worry about the prospect that courts will hold them
accountable to the victims of their conduct. If H.R. 800 passes, it
will mean more gun sellers acting with utter contempt for public
safety, with disastrous consequences for communities throughout the
Nation. This is why, Mr. Chairman, there is substantial opposition to
this legislation in the law enforcement community, including the Major
Cities Chiefs Association, the International Brotherhood of Police
Officers, the Police Foundation, the National Black Police Association,
the Hispanic Police Command Officers Association and several state
associations of police chiefs.\7\ In addition to recognizing that
police officers like David Lemongello and Ken McGuire may be among the
gun victims whose rights are infringed by this bill, these
organizations also understand that H.R. 800 will only mean more illegal
guns on the streets. It only takes a few ``bad apple'' gun dealers to
funnel thousands of guns to criminals. ATF has found that only one
percent of licensed gun dealers account for 57% of the guns traced to
crime.\8\ These law enforcement organizations agree with us that good
gun dealers don't need legal immunity; bad gun dealers don't deserve
it.
---------------------------------------------------------------------------
\7\ A letter opposing H.R. 800 from these organizations, and other
members of the law enforcement community, is attached.
\8\ Commerce in Firearms in the United States, Bureau of Alcohol,
Tobacco and Firearms (February 2000), at 2.
---------------------------------------------------------------------------
GUN INDUSTRY IMMUNITY LEGISLATION IS FAR MORE RADICAL THAN TORT REFORM
Finally, it is important to distinguish H.R. 800 from other
legislation this Congress has considered, and will consider, to reform
our civil justice system. This bill is far more radical than any other
proposal the Congress will address. Unlike class action reform, H.R.
800 does not simply change the legal forum in which gun liability cases
are considered; it protects reckless gun sellers from liability in any
forum. Unlike medical malpractice reform, H.R. 800 does not simply
limit the amount and kind of damages that can be recovered by gun
violence victims against reckless gun sellers; it deprives victims of
any recovery. Unlike the asbestos litigation reform proposals, H.R. 800
sets up no alternative to the court system for victims to be
compensated; it denies all avenues for compensation. In short, H.R. 800
gives the gun industry special legal privileges that other industries
can only dream about. And it makes the victims of reckless gun sellers
into ``second-class'' citizens, who lack the basic civil liberties of
other Americans who have been injured by the wrongful conduct of
others.
For these reasons, on behalf of the Brady Center to Prevent Gun
Violence, and the brave gun violence victims we represent in court, I
urge you to oppose this legislation. Thank you again for the
opportunity to share my views.
ATTACHMENT
Mr. Chabot. Mr. Beckman, you are recognized for 5 minutes.
TESTIMONY OF BRADLEY T. BECKMAN, BECKMAN AND ASSOCIATES,
COUNSEL TO NORTH AMERICAN ARMS
Mr. Beckman. Good morning, Mr. Chairman and Members of the
Subcommittee. My name is Bradley Beckman and I'm National
Counsel for North American Arms, which is in Mr. Cannon's
district.
The legal assault that has been brought against North
American Arms and the other manufacturers by Mr. Henigan's
organization and various municipalities are nothing short of
legal terrorism. This has been an assault that has been ongoing
for many years.
North American Arms is a small manufacturer, relatively
modest-sized, been in business for 30-odd years. It employs a
number of people and it has a number of suppliers that are
employed and it goes on down the line. The burden that is put
upon a small company like North American Arms and many that are
similarly situated is extraordinary.
I listened to Mr. Henigan's comments about what this bill
has to do with, and respectfully, I suggest that this bill has
nothing to do with terrorism, 50-caliber ammunition, armor-
piercing bullets, copkiller handguns, but it has everything to
do with prevention of legal terrorism.
Companies like North American Arms have been essentially
held for ransom because they've been told if they don't,
they're going to continue to be assaulted with litigation of
this sort.
I listened with interest to the comments about the Bull's
Eye case because I was involved in that case. I was engaged as
trial counsel. The acts of those criminals were just that. That
was a firearm that was stolen. Bushmaster sold a lawful product
in a non-defective condition which was openly stolen from the
retailer. This legislation, I submit, under my understanding of
the way it is written, would not prevent litigation such as
that against a wrongful seller, somebody who has violated the
law by allowing that firearm to escape their clutches.
With regard to the Lemongello case in West Virginia, we're
talking about, again, tragedies where we've seen law
enforcement officers killed. Ruger sold another product in a
non-defective condition in compliance with a host of laws. It
did nothing wrong. To suggest that this legislation will
prevent somebody from getting into the courthouse door, I think
is simply a misstatement of what this bill is designed to
prevent.
Mr. Henigan was involved since the mid-1990's with
approximately 30 lawsuits brought by municipalities throughout
the country--Cincinnati, several in California, Detroit. Each
and every one of them has been unsuccessful. However, the cost
has been staggering. That is what this legislation is about.
If the courthouses in America were designed to address
that, then I would submit that we wouldn't have a legislature.
We would have just a judicial branch. But this is up to the
legislative body to make the laws. If our legislature should
determine that firearms are illegal in some form or another,
that's a matter for another day. This is to prevent the
proverbial gun in the ribs to the manufacturers, the
distributors, and the lawful sellers who comply with a very
large host of law and regulation.
If somebody could explain--I listened to Mr. Smith ask what
liability is left. Well, we have retailers who are complying
with law, distributors, and manufacturers. As we go through the
chain, as we find somebody who violates the laws that presently
exist, that's not going to be covered by this legislation. What
is covered is the--truly a perversion of the tort system to try
to use the tort law of public nuisance, which has been one of
the prime sticks that the plaintiffs have tried to use against
this industry, to essentially bankrupt them, and while there
may have been some companies larger than others, better able to
withstand some of the legal assault, I can tell you from the
perspective of a modest-sized manufacturer like North American
Arms, it cannot withstand that assault and there are a number
of other similarly situated companies.
I see that my time is expiring, and I thank you.
Mr. Chabot. I can assure you you'll have an opportunity to
respond to questions and speak some more.
[The prepared statement of Mr. Beckman follows:]
Prepared Statement of Bradley Beckman
Mr. Chairman, my name is Bradley Beckman and I am here representing
a modest-sized firearms manufacturer with which I am sure you are
familiar, North American Arms. North American Arms is based in your
district. I want to begin by thanking you for holding this hearing. The
legal assault on the firearms industry by opportunistic lawyers and
anti-gun politicians threatens to bankrupt an entire industry that
scrupulously follows all federal, state and local laws in the
manufacture of our products and their sale to federally licensed
firearms distributors.
North American Arms employs approximately 40 people and specializes
in the manufacture of small-sized, personal protection firearms. Many
individuals who choose to carry our high-quality products are members
of the law enforcement community who use them as a second or ``backup''
firearm to their standard sidearm. North American Arms has been named
in several of the state and municipal suits against the firearms
industry.
The lawsuits brought against gun manufacturers are nothing short of
outrageous. Holding gun makers liable for the criminal misuse of our
products--one of the central accusations in these suits--is akin to
holding Ford, Chevy or Honda responsible for the illegal actions of a
drunk driver or holding Kodak responsible for the use of their film in
the vile world of child pornography. It is an accusation that defies
common sense. While these lawsuits barely pass the straight face test,
the consequences of these suits are no laughing matter.
North American Arms is literally being crushed under the weight of
legal expenses. Money that could be used for developing new markets,
hiring workers, improving firearms design and safety is instead
channeled to fund the huge costs associated with the legal defense of
the company.
These lawsuits are nothing short of legal backmail-lawyers,
politicians and anti-gun groups want to achieve in the courtroom
draconian changes in gun laws that have been rejected by Congress and
state legislatures. Their message is simple: ``settle with us or we
will bankrupt you with lawsuits.'' This legal extortion must be
stopped.
North American Arms is a responsible firearms manufacturer that
adheres strictly to all laws governing the manufacture and sale of our
products to distributors. We have an excellent relationship with law
enforcement. We have done nothing wrong, yet if a judge and jury in,
for example, New York, decide against our industry it holds the
potential of bankrupting not just North American Arms, but the entire
U.S. firearms industry. It is doubtful that North American Arms or
other manufacturers could post the necessary bond to appeal a verdict.
If these suits are successful, they will be a wrecking ball on our
national economy. Any member of Congress from Michigan should be ready
for a similar assault on the auto industry. We already see suits
against purveyors of fast food. The list of targeted industries could
go on and on.
I want to close with two quotes. The first from a recent decision
by California Judge James Marchiano, writing for a unanimous state
Court of Appeals decision in favor of the firearms industry just last
month. Judge Marchiano wrote:
``The only business practice the defendants in this case have
engaged in is marketing their products in a lawful manner to
federally licensed dealers . . .''
``In this case, there is no causal connection between any
conduct of the defendants and any incident of illegal
acquisition of firearms or criminal acts or accidental injury
by a firearm. Defendants manufacture guns according to federal
law and guidelines.''
In March 2002, the City of Boston dismissed with prejudice its
lawsuit against firearms manufacturers. The city, facing mounting legal
bills and recognizing that it would lose its case, stated in its
dismissal that:
``. . . members of the Industry and firearms trade associations
are genuinely concerned with and are committed to, the safe,
legal and responsible sale and use of their products . . . The
Industry and the City believe that through cooperation and
communication they can continue to reduce the number of firearm
related accidents, can increase awareness of the issues related
to the safe handling of storage of firearms, and can reduce the
criminal acquisition of firearms.''
Mr. Chairman, passage of H.R. 800 is common-sense judicial reform.
This bill will protect jobs, prevent the misuse of the courts to
circumvent elected officials and prevent abuse of the judicial system.
Thank You.
Mr. Chabot. Mr. Keane?
TESTIMONY OF LAWRENCE G. KEANE, SENIOR VICE PRESIDENT AND
GENERAL COUNSEL, NATIONAL SHOOTING SPORTS FOUNDATION, INC.
Mr. Keane. Chairman Cannon, distinguished Members of the
Subcommittee, my name is Lawrence Keane and I'm the Senior Vice
President and General Counsel for the National Shooting Sports
Foundation, the trade association for the firearms industry. We
strongly support this bill because it's an important common
sense legal reform that will help restore integrity and
fairness to our nation's judicial system by preventing lawsuit
abuse.
This vital, bipartisan legislation is critical to
protecting America's firearms industry from destruction and
bankruptcy at the hands of opportunistic trial lawyers,
seriously misguided politicians, and radical anti-gun interest
groups who seek to destroy and bankrupt our industry through
massive damage awards and/or bleeding us dry through ever-
mounting legal fees. These ``regulation-through-litigation''
lawsuits misuse our judicial system in an attempt to dictate to
all Americans public policy choices that are rightfully the
purview of Congress and the elected State legislators. Under
our Constitution, those policy choices are for Congress, not
judges.
The threat posed by ``regulation-through-litigation'' is
why the U.S. Chamber of Commerce, the National Association of
Manufacturers, the National Association of Wholesalers, and
others support this bill. As the National Association of
Manufacturers has said, ``It is a certainty that other
businesses will be the next target if these groups succeed in
misusing the courts against the firearms industry.'' This
legislation is also supported by organized labor. The United
Mine Workers, representing about 1,000 Remington factory
workers, said the bill will, ``help prevent lawsuits by various
parties that are intended to shut down the legitimate and legal
firearms industry in the United States because of the improper
use of firearms by individuals.'' These lawsuits seek to blame
federally-licensed firearms manufacturers for the actions of
criminals.
Despite some industry success in the courts, this well-
funded, highly-coordinated onslaught of abusive lawsuits
against Members of our industry continues unabated. A single
$100 million verdict will bankrupt virtually all the
defendants.
Members of our industry are being sued today, right here in
the District of Columbia, under a law that imposes absolute
liability upon manufacturers for criminal shootings occurring
in the District because they lawfully sold a gun that was then
later illegally brought into the District and used in a crime.
Bushmaster is being sued under this same statute with respect
to the firearm misused in the sniper case.
But the poster child for this bill is a case called Ileto
v. Glock, where a manufacturer is being sued in Federal court
in California for selling a firearm to a police department in
Washington State that was later used in a criminal shooting. A
distributor is being sued in that case, even though it never
owned, possessed, or sold the firearm in question. Winning on
the merits is not necessary in order for these politician and
anti-gun activists, like Mr. Henigan, to impose through
litigation or financially extorted or coerced settlements, a
gun control agenda repeatedly rejected by Congress and State
legislature.
These anti-gun plaintiffs can implement their gun control
policies through the entire nation if the coercive effect
resulting from the staggering cost to defend these cases forces
manufacturers into a Hobson's choice of capitulation or
bankruptcy.
The industry-wide cost to defend these cases is staggering.
It exceeds $200 million, which is a huge sum for a small
industry like ours that taken together doesn't equal a simple
Fortune 500 company. These lawsuits threaten the very existence
of the manufacturers, such as Sigarms, that produce the tools
for law enforcement and military agencies that they use to
protect America's freedoms here and abroad every day. These
lawsuits have national defense and homeland security
implications.
The legislation you are considering today is as important
for what it does not do. It does not, as Mr. Henigan tries to
allege, close the courthouse door to those who have been
injured by firearms that have been, for example, illegally sold
or have been negligently entrusted or are defectively designed.
The bill expressly provides that injured parties will be able
to assert well-established tort law claims against the
manufacturers themselves of firearms.
The Wall Street Journal in an editorial got it right when
it said, ``This isn't immunity, as some critics claim. The gun
makers and distributors would still have to abide by product
liability laws and still face civil suits for violating
regulations on the sale and distribution. But just as Sony is
not responsible for someone who uses a camcorder to film child
pornography, no longer could Beretta be held responsible for
someone using its legally purchased product to rob a liquor
store.'' It's that judicial abuse that this legislation is
carefully drafted to stop, and nothing more.
There are several refinements to the bill that was passed
by the House in the 108th Congress. We support those changes
because they enhance and clarify the bill's purpose and intent.
We agree with President Bush, who said, ``Recently our
nation depends on a fair legal system that protects people who
have been harmed without encouraging junk lawsuits that
undermine the confidence in our courts while hurting our
economy, costing jobs, and threatening small business.'' Over
30 States have already enacted similar laws designed to stop
junk lawsuits that are intended to destroy our industry and to
achieve gun control regulation through litigation.
The time has come for Congress to enact common sense legal
reform to prevent an unconstitutional attempt to circumvent
Congress and State legislatures, to restore integrity and
fairness to our judicial system, to protect one of America's
oldest and most important industries, and to prevent the loss
of thousands of American jobs vital to the health of our
economy, and to protect a critical component of our national
security industrial base.
Today, it's guns. We are already seeing similar legal
assaults on the fast food industry. Are cars, alcohol, and
distilled spirits next in line at the courthouse door? We've
already seen it start with alcohol.
The National Shooting Sports Foundation urges you to vote
in favor of the Protection of Lawful Commerce in Arms Act.
Thank you, Mr. Chairman, for permitting the National Shooting
Sports Foundation the opportunity to address the Subcommittee
and for the Subcommittee's time and attention.
Mr. Cannon. [Presiding.] Thank you, Mr. Keane.
[The prepared statement of Mr. Keane follows:]
Prepared Statement of Lawrence G. Keane
Chairman Cannon and distinguished members of the Subcommittee, my
name is Lawrence G. Keane. I am the senior vice president and general
counsel of the National Shooting Sports Foundation, Inc. (NSSF). The
National Shooting Sports Foundation appreciates the opportunity to
appear before the Subcommittee this morning to offer testimony in
support of the Protection of Lawful Commerce in Arms Act (H.R. 800).
Formed in 1961, the National Shooting Sports Foundation, with
approximately 2,500 members, is the trade association for the firearm,
hunting and recreational shooting sports industry. NSSF is proud of our
industry's cooperative relationship with law enforcement, as
exemplified by the NSSF--Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) partnership program called Don't' Lie for the Other
Guy that ATF Director Carl Truscott described as ``vital in educating
Federal firearms licensees (FFL's) and their employees how to recognize
and deter the illegal purchase of firearms through straw purchases.''
He called the program ``an important tool for ATF as we pursue our
missions of preventing terrorism, reducing violent crime, and
protecting the public through Project Safe Neighborhoods and other
initiatives.'' NSSF's commitment to promoting the safe and responsible
use of firearms is typified by our Project ChildSafe program. Operating
under a grant from the U.S. Department of Justice, NSSF, in partnership
with state and local governments throughout the United States, has
distributed to the public over 25 million firearm safety kits, which
includes a free firearm lock. We are very proud that Don't Lie and
Project ChildSafe are both components of the Justice Department's
Project Safe Neighborhoods program.
We strongly support the Protection of Lawful Commerce in Arms Act
(H.R. 800) because it is an important common sense legal reform that
will help restore integrity and fairness to our nation's judicial
system by preventing lawsuit abuse. This vital bipartisan legislation
is critical to protecting America's firearm industry from destruction
and bankruptcy at the hands of opportunistic trial lawyers, seriously
misguided politicians and radical antigun interest groups who seek to
destroy and bankrupt our industry through massive damage awards and/or
bleed us dry through ever mounting legal fees. These predatory lawsuits
misuse and abuse our nation's judicial system in an attempt to dictate
to all Americans public policy choices that are rightfully the purview
of Congress and elected state legislators. In dismissing one such suit,
a Florida appellate judge astutely observed that
[Miami-Dade County's] request that the trial court use its
injunctive powers to mandate redesign of firearms and declare
that the [firearms manufacturers'] business methods create a
public nuisance, is an attempt to regulate firearms and
ammunition through the medium of the judiciary. . . . The
County's frustration cannot be alleviated through litigation as
the judiciary is not empowered to `enact' regulatory measures
in the guise of injunctive relief. The power to legislate
belongs not to the judicial branch of government but to the
legislative branch.
This misuse of lawsuits by interest groups to force public policy
changes, so-called ``regulation through litigation,'' when under our
Constitution those policy choices are for Congress and state
legislatures to make, represents a direct threat to the entire business
community and the nation's economy. This is why the U.S. Chamber of
Commerce, the National Association of Manufacturers, the National
Association of Wholesalers, the American Tort Reform Association, and
many others support H.R. 800. As National Association of Manufacturers
executive vice president Michael Baroody has said, ``It is a certainty
that other businesses will be the next target if these groups succeed
in misusing the courts against the firearms industry.''
This legislation is supported by organized labor as well. Cecil
Roberts, president of the United Mine Workers of America, which
represents nearly a thousand workers at the Remington Arms Company's
plant in New York, said this bill ``will help prevent lawsuits by
various parties that are intended to shut down the legitimate and legal
firearms industry in the United States because of improper use of
firearms by individuals.'' He cautioned, ``The United States is losing
our industrial base and since January 2001 we have lost 2.5 million
industrial jobs in the U.S. . . . We need to take steps to protect and
encourage growth of our industrial base, including our firearms
manufacturers.''
Beginning in 1998, a group of approximately forty urban
politicians, aligned with contingency-fee trial lawyers and anti-gun
activists, have flooded our nation's courts with lawsuits filed against
law-abiding, federally licensed firearm manufacturers, wholesale
distributors and retailers. These suits blame federally licensed
firearm manufacturers for the actions of criminals. The plaintiffs in
these cases allege that the sale of a legal product in full compliance
with the vast and extensive array of federal, state and local laws and
regulations somehow causes criminal violence to occur. They allege that
members of the industry are subverting the law by knowingly and
willingly selling guns to criminals and are funneling firearms to the
so-called ``criminal market.'' These despicable allegations are both
patently false and highly offensive and defamatory to the tens of
thousands of men and women who work in our industry.
Despite some success in the courts, this well-funded, highly
coordinated onslaught of abusive lawsuits against members of our
industry continues unabated. Several cases are currently pending at the
trial court level with several more cases at various stages of appeal
that could be returned to trial courts for costly and time-consuming
discovery and trial. A single hundred million dollar verdict will
bankrupt virtually all of the defendants. In fact, the companies would
almost certainly be unable to post the bond required to enable them to
appeal such an award. Recently, the City of New York enacted into law
the Gun Industry Responsibility Act that imposes absolute liability on
law abiding, federally licensed firearm manufacturers and dealers for
criminal shootings that occur in New York City. Members of our industry
are being sued today right here in the District of Columbia under a
similar law that imposed absolute liability upon manufacturers and
dealers for criminal shootings occurring in the District because they
lawfully sold a firearm that was then illegally brought into the
District and used in the commission of a crime. A manufacturer is being
sued in federal court in California for selling firearms to a police
department in Washington State that was later used in a criminal
shooting. In that same case, a distributor is being sued even though it
never owned, possessed or sold the firearm in question. This case,
Ileto v. Glock, is the poster child for the Protection of Lawful
Commerce in Arms Act.
Winning on the merits is not necessary in order for these
politicians and antigun activists to impose through litigation, or
financially extorted and coerced settlements, a radical gun control
agenda repeatedly rejected by Congress and state legislatures, and not
supported by the American public. At the time he filed his suit,
Chicago Mayor Richard Dailey said, ``We're going to hit them where it
hurts--in their bank accounts. . .'' Andrew Cuomo, then Housing and
Urban Development Secretary, threatened firearm manufacturers with
``death by a thousand cuts.'' NAACP president Kweisi Mfume said its
lawsuit was ``an effort to break the backs'' of industry members. These
antigun plaintiffs can implement their gun control policies throughout
the entire nation if the coercive effect resulting from the staggering
financial cost to defend these baseless suits forces industry members
into a Hobson's choice of either capitulation or bankruptcy. Companies
have gone bankrupt, and thousands of people thrown out of work,
vindicating themselves against baseless lawsuits; just ask Dow Corning.
The collective, industry-wide cost to defend these ill-conceived,
politically motivated, predatory lawsuits has been truly staggering.
Exact figures are unavailable because the defendants are competitors,
and each considers its defense costs to be confidential business
information. However, based on discussions with insurance industry
executives, manufacturers' corporate counsel, reading cost estimates in
various publications and NSSF's own experience as a defendant in these
cases, I believe a conservative estimate for the total, industry-wide
cost of defending ourselves to date now exceeds $200 million dollars.
This is a huge sum of money for a small industry like ours. The firearm
industry taken together would not equal a Fortune 500 company.
The cost of litigation is borne almost exclusively by the companies
themselves. With few exceptions, insurance carriers have denied
coverage. These antigun plaintiffs have carefully drafted their
complaints to take them outside of liability insurance coverage in
order to apply maximum financial pressure on the defendant
manufacturers. Because of these lawsuits, firearm industry members now
confront skyrocketing premium increases when renewing their insurance
policies. In addition, insurance policies now universally exclude
coverage for these types of suits. This has resulted in large, across-
the-board price increases for consumers. In addition, in these trying
economic times, taxpayers of the cities that have chosen to pursue the
utterly discredited notion that manufacturers are responsible for the
acts of criminals are forced to shoulder their city's cost of pursuing
such a lawsuit, money that would be better spent hiring more police
officers, procuring new equipment or funding critical social services.
These lawsuits threaten the very existence of the manufacturers
that produce the tools our military and law enforcement agencies use
every day to protect America and our freedoms both here at home and
abroad. If these companies are driven out of business, from whom will
our military and law enforcement purchase firearms? Make no mistake
about it; these lawsuits have national defense and homeland security
implications.
The legislation you are considering today is perhaps more important
for what it does not do. It does not, as antigun interest groups have
falsely alleged, ``close the courthouse doors'' to those who have been
injured by firearms that have been illegally sold, supplied to a person
likely to use the firearm in a manner involving an unreasonable risk of
injury to himself or another, or prevent a suit due to a defectively
designed or manufactured product. The bill expressly provides that
injured parties will be able to assert well-recognized tort law claims
against the manufacturers and sellers of firearms. The Wall Street
Journal clearly stated in an editorial that, ``This isn't immunity, as
some critics claim. Gun makers and distributors would still have to
abide by product liability laws and still face civil suits for
violating regulations on sales or distribution. But just as Sony is not
responsible for someone who uses a camcorder to film child pornography,
no longer could Beretta be held responsible for someone using its
legally purchased product to rob a liquor store.'' (Wall Street
Journal, April 17, 2003.) It is that abuse of our judicial system that
this legislation is carefully drafted to stop, nothing more and nothing
less.
The loudest voices arrayed in opposition to this legislation are
the same antigun interest groups that are orchestrating and financing
the litigation assault to regulate the firearm industry in ways
Congress and state legislatures have roundly rejected and hold no
support with the American public.
There are several refinements between the bill passed by the House
in the 108th Congress (H.R. 1036) and this legislation. One change
better clarifies that suits can proceed where there is a defective
product, but that when a criminal volitionally pulls the trigger
causing injury, the manufacturer cannot be sued. As revised, for
instance, a juvenile who while target shooting without written
permission from his parents (a violation of 18 U.S.C. Sec. 922(y)) is
injured by defective ammunition could still be able to bring a suit
against the ammunition manufacturer. H.R. 800 defines a ``trade
association'' based on Internal Revenue Code and regulations. This new
definition avoids specious arguments that the former definition was
intended to protect the National Rifle Association. There was never any
such intention in the previous bill, and this language makes that
clear. H.R. 800 provides that manufacturers or sellers can be sued if
they ``knowingly'' violate laws applicable to the sale or marketing of
the product, and the violation is a proximate cause of harm to the
plaintiff. By comparison, H.R. 1036 said ``knowingly and willfully.''
We support these refinements because they enhance and further clarify
the bill's purpose and intent.
Over thirty states have already enacted similar laws to stop
``junk'' lawsuits designed to destroy this industry and to achieve gun
control regulation through litigation. We agree with President Bush who
recently said, ``Our country depends on a fair legal system that
protects people who have been harmed without encouraging junk lawsuits
that undermine confidence in our courts while hurting our economy,
costing jobs and threatening small businesses.'' The time has come for
Congress to enact a common sense legal reform to restore integrity and
fairness to our judicial system, protect American jobs and industry and
to prevent an unconstitutional attempt to circumvent Congress and state
legislatures. We call upon Congress to prevent lawsuit abuse. The
future of one of America's oldest, most important industries and the
loss of thousands of American jobs vital to the health of our economy
is at stake, as is a critical component of our national security
industrial base.
The shuttering of the firearm industry will hit states--especially
rural states--especially hard. Each year hunters and shooters spend $21
billion generating 366,344 jobs that pay more than $8,896,623,900 in
salaries and wages and provide $1,223,049,215 in state tax revenue.
In closing, if these lawsuits are not stopped, then it is open
season on any industry. It is guns today, and we are already seeing
similar legal assaults on the fast food industry--cars, alcohol and
distilled spirits could be next in line at the courthouse door. In some
way, these lawsuits will impact job creation in your districts and
states and not for the better.
The National Shootings Sports Foundation urges you to vote in favor
of the Protection of Lawful Commerce in Arms Act (H.R. 800). I thank
you Mr. Chairman for permitting the NSSF to address the Subcommittee
and for the Subcommittee's attention this morning.
ATTACHMENT
Mr. Cannon. We'd like to welcome Mr. Delahunt from
Massachusetts, who's joined us.
We have a vote coming up, and I'd hate to hold the panel
through that vote and it would be hard for Members to come
back, so I'd ask unanimous consent to limit questioning by the
Members to 3 minutes. No objection, so ordered.
Mr. Watt, would you like to begin?
Mr. Watt. Thank you, Mr. Chairman. I think in light of our
time constraints, I think I will not ask any questions. We've
been through this several times now in this Committee, and here
we go again. I mean, I made that point in my opening statement.
I would just say that this whole notion that Mr. Beckman
and Mr. Walton have--obviously, it's some public relations
thing that you've undertaken to compare this war to the war in
Iraq or call this legal terrorism and make it in some kind of
way comparable to terrorism in general, I think is insulting to
your argument, and I'll just leave that alone and tell you
that's my opinion. That's a constructive suggestion. For you
all to compare these things like that, I think is a bad, bad
public relations move.
I yield back, Mr. Chairman.
Mr. Cannon. The gentleman yields back.
Mr. Gohmert, would you like to question the witnesses?
Mr. Gohmert. Yes, I would.
Mr. Cannon. The gentleman is recognized for 3 minutes.
Mr. Gohmert. Thank you. Mr. Henigan, let me ask, what do
you take the term negligent entrustment to mean?
Mr. Henigan. Congressman, negligent entrustment is actually
defined in this bill, so it has a very special definition that
is not necessarily the same as the common law definition.
According to this bill, the suits that would be allowed under
that doctrine are suits in which a seller transfers a gun to an
obviously dangerous person and then that person misuses the gun
against someone. So it would be, for example, a situation where
a seller sells a gun to someone who is intoxicated and then
goes out and shoots someone. That is a very rare kind of case.
The much more frequent kind of case is the kind of thing
that happened in that gun shop in West Virginia, where the sale
of the gun is to a gun trafficking team and the person who
pulled the trigger was nowhere near the gun shop, but
nevertheless, the sale was incredibly suspicious. It had all
the earmarks of a sale to people who were going to take those
guns and sell them directly into the illegal market.
So the doctrine of negligent entrustment as it is defined
in this bill would not have preserved that case at all.
Mr. Gohmert. Well, it does seem, though, that the Second
Amendment, when it says--talks about not infringing the right
to keep and bear arms, doesn't mean what one constable back in
Texas thought it meant, that he had the right to wear short
sleeves. But until such time as that is amended, it seems like
we should be affording people the right to act within the
purview of that amendment.
I yield back the remainder of my time. Thank you, Mr.
Chairman.
Mr. Cannon. Thank you, Mr. Gohmert.
Mr. Van Hollen?
Mr. Van Hollen. Thank you, Mr. Chairman.
Whenever the case of the sniper victims comes up, the
proponents of the bill say, oh, no, no, no, we're not talking
about trying to bar people like the sniper victims and their
families from court. It's other people in the world. In fact,
as I understood your testimony, Mr. Beckman, you said your
understanding of the bill was it would not bar that case. Is
that what your testimony was?
Mr. Beckman. Insofar as the claims against the manufacturer
of that firearm----
Mr. Van Hollen. Let--go ahead.
Mr. Beckman. Insofar as the claims against the manufacturer
of that firearm, I believe that this legislation would prevent
that. But respectfully, I suggest that Bushmaster sold its
lawful product in a non-defective condition, which the Congress
of the United States as well as every State said was a lawful
product.
Mr. Van Hollen. If I could, let me focus on the gun store,
the gun store that sold the weapons. Is it your testimony that
a lawsuit against the gun store on the facts of the sniper case
would still be allowed to go forward under this bill?
Mr. Beckman. Well, it----
Mr. Van Hollen. And if so, if you could point to the
specific provisions--specific provisions of this bill, because,
as you know, when you go in front of a court of law and you sit
before a judge, you've got to make an argument based on the
language in this bill. If you could tell me, based on the
facts, what provisions would allow that case would go forward,
I'd appreciate it.
Mr. Beckman. Okay. That firearm was not sold by Bull's Eye.
It was stolen by Bull's Eye. Strike that, stolen from Bull's
Eye. The qualified civil liability action would not include, in
my opinion, the failure of Bull's Eye to have maintained
control over whatever it--its inventory, because we already
have plenty of Federal law that dictates the inventory control
that the firearms manufacturers--the firearms retailers should
have, and it is the unlawfulness use that is--it would not be
precluded. And it would deal with, perhaps--you're asking me to
interpret this draft statute as I sit here, and I believe----
Mr. Van Hollen. Right. I'm not--you made a statement in
your testimony that I interpreted to mean that you thought that
this would allow this to go forward, so I thought that you
looked at the provisions. That's all.
Mr. Beckman. Yes, sir, I have, and I believe that the claim
against the retailer would have not been foreclosed under the
language of the statute. I believe that it would have
foreclosed the----
Mr. Van Hollen. And all I was asking you, Mr. Beckman,
based on your reading of the statute, what provisions in the
statute, based on your understanding of the facts, would allow
it to go forward, because the fact of the matter is, although
over 250 weapons were missing from this store, under the
requirements in this bill, you have to show a direct connection
between the particular gun that was stolen and used in the
shootings and a proximate cause between the disappearance of
that gun and the shootings.
And I just--the way I read this bill, and the way many
lawyers who have looked at the bill and written opinions and
submitted opinions to the Congress, it's quite clear, I
believe, that those claims would be barred against the store.
Mr. Beckman. Well, but again, I respectfully disagree, sir,
because I believe that it is a violation of Federal law,
existing Federal law, for the retailer to have not reported the
theft.
Mr. Van Hollen. If I could ask you, the requirement is if
you know of a theft, right?
Mr. Beckman. Well----
Mr. Van Hollen. In this case--Mr. Chairman, I don't mean to
belabor this point, but I'd just like to just wrap up, because
in this case, the testimony was that about 230 weapons had been
missing from the store. Their testimony was, and it was
unrefuted, that they were not aware of the theft of the
Bushmaster rifles used in the sniper killings until after the
killings took place, and therefore, there would be no legal
obligation on them to report something that they did not know
about under the statutes.
Even though the record is clear that this is a gun store
that did not keep control over its weapons--that's why 230 were
missing and they couldn't account for them. But the way this is
written, because their testimony is they didn't know about it,
therefore, they didn't have a legal obligation to report it.
Even though they were totally negligent in keeping control of
their arsenal, of the guns they were selling, they couldn't--
the claim would not be brought.
I would ask if you could, in a written statement, show us
how that is not the case. Thank you, Mr. Chairman.
Mr. Beckman. I'd be pleased----
Mr. Cannon. You're welcome to answer that question, if
you'd like.
Mr. Beckman. I believe that I've given my view as to why
the statute would not have precluded that case against the
retailer. It's still a violation of Federal law. It is just
akin go what Mr. Henigan explained in the West Virginia case,
where it was a knowing violation of the straw purchase. That
has been and will remain a violation of Federal law. Where we
have somebody who violates the law, that's not within the
purview of this statute. What is within the purview of this
statute is the 30-odd lawsuits that were brought by
municipalities around this country, all of which had no effect
whatsoever on this industry other than to cost them staggering
sums of money. And indeed, the lawsuits themselves were abject
failures. That's what this legislation is designed to address.
Mr. Van Hollen. Mr. Chairman, at some point, if you could
maybe later supply for the record the particular provision in
this bill that you say would still allow that lawsuit to go
forward, because what this bill does is provide general
liability and creates certain exceptions. If you could, please,
pinpoint what in the bill allows the lawsuit against the seller
of the weapons used in the sniper suit to go forward, I would
appreciate it.
Mr. Cannon. And if you could get that within 5 days, we
would appreciate that, so that we can include it in the record.
Mr. Beckman. I'd be pleased to do so.
Mr. Cannon. Thank you, Mr. Beckman.
The gentleman from Arizona, Mr. Franks, is recognized for 3
minutes.
Mr. Franks. Mr. Chairman, I know this isn't the appropriate
venue to kind of dissect this legislation, but it occurs to me
that in section 5, article III, 1, 2, the Malvo case is made
very clear. Neither of these individuals involved in the sniper
case could have legally purchased a gun in the first place, and
so I think it's a red herring.
But the ultimate situation is that in the final analysis
here, this is going to a deeper question in our country, and
that is simply the right of people to own and bear arms and
defend themselves and the right of manufacturers to manufacture
weapons that can accomplish that. Ultimately, even those that
are opponents of this bill would suggest that the police
officers of this nation should have the ability to defend other
people.
So with that statement made, it lays out very clearly that
it's not the weapons, it's whose hands they are in. If we don't
refocus our attentions as a nation into making sure that the
people who misuse the weapons are our focus rather than the
weapons, then we merely disarm the innocent and merely prevent
people from being able to defend themselves, and I can suggest
to you that criminals have always preferred unarmed victims,
and that is at the core bases of this discussion.
Thank you, Mr. Chairman.
Mr. Cannon. Thank you.
The bell has not yet run. Mr. Delahunt, would you like to
ask questions?
Mr. Delahunt. If the chair doesn't object.
Mr. Cannon. How could I object? I wish you were on our
side, but what the heck. We'll do with the information we get,
whatever----
Mr. Delahunt. I just want to pick up on something that the
gentleman just talked about, a basic right and the Second
Amendment. I want to assure you, I support the Second
Amendment. But I also support what I consider as a basic right
of a citizen who, if he or she feels that there has been an
injury because of negligence or because of the actions of
someone else, a basic right to the justice system, to the civil
justice system. That is probably the core, most fundamental
right that we enjoy as Americans, access to a justice system.
You know, the gentleman speaks of staggering sums. How much
has been spent?
Mr. Beckman. Are you----
Mr. Delahunt. I'm speaking to the gentleman with the nice
white hair. [Laughter.]
Mr. Beckman. Are you talking about for North American Arms
specifically, or----
Mr. Delahunt. No. In other words, I'll tell you, I'm having
real difficulty finding out what the problem is. You know, all
I see is in the findings, I don't read anything about empirical
data supporting a premise that the industry is going to go
under.
Mr. Beckman. Well, respectfully, Congressman, we have other
laws that preclude us from sharing all of our information among
the manufacturers and distributors. So I can only speak to the
company, or companies, that I have first-hand knowledge of.
Mr. Delahunt. Okay.
Mr. Beckman. And I can tell you that my client has spent
hundreds and hundreds of thousands of dollars----
Mr. Delahunt. Defending lawsuits.
Mr. Beckman. Well, I'm talking about the municipal
litigation. I'm not talking about----
Mr. Delahunt. All right. Now, you've won those suits,
correct?
Mr. Beckman. Well, thus far, and where I have the problem
with it, why I think that this legislation----
Mr. Delahunt. Could I ask you--let me just interrupt, okay?
You represent a manufacturer.
Mr. Beckman. Yes, sir.
Mr. Delahunt. Would you have problems if manufacturers
enjoyed this particular--the benefit of this legislation,
because, you know, I dare say that the most obvious party in
terms of responsibility and negligence would be the seller, the
immediate seller. Now, if legislation were redrafted which
would continue the common law as it applies to the distributor,
the immediate seller, would you have a problem with that?
Mr. Beckman. I have a problem with holding--trying to hold
somebody liable for damages that is very remote, because it is
the same thing. We all know about the problems with drunk
driving in this country, and if we start holding the auto
manufacturers liable----
Mr. Delahunt. No, no, but you're not answering my question.
I'm saying, let's use your analogy. What about the bartender,
okay, that gives that customer who's obviously inebriated that
extra drink, as opposed to the maker of the scotch that was
consumed? Do you see a distinction there?
Mr. Beckman. Well, I do, and we have the Dram Shop Acts
that----
Mr. Delahunt. I'm not asking about the Dram Shop Acts. I'm
asking about the analogy between the producer of the whiskey
and the bartender who sells it in terms of responsibility. Do
you see a distinction there?
Mr. Beckman. I do. I do. I think that if you hold the
manufacturer of the whiskey responsible, that's not----
Mr. Delahunt. But what about the bartender?
Mr. Beckman. If the bartender is serving somebody who's
clearly inebriated, I think that's wrong.
Mr. Delahunt. Okay, and should be held liable?
Mr. Beckman. Indeed. If somebody is then injured by that
drunk person, yes, I have no problem with----
Mr. Delahunt. Well, I guess that's what I'm suggesting in
terms of the difference between the manufacturer and the seller
in that gun store to that individual who comes in.
Mr. Beckman. Well, unless we have a vertically integrated
industry where----
Mr. Delahunt. I'm not asking about vertical integration.
I'm asking about the individual who sells the gun at the gun
store, not--if you guys want to have a caucus, I'll be quiet
here and you two can work out the answer. Can I just please ask
the question without the gentleman whispering in your ear for
just a moment, okay? I'm sure he's more than capable of giving
me an answer.
Mr. Cannon. Do you want an answer to the question, or do
you want to embarrass the witness, Bill?
Mr. Delahunt. Maybe both, but at least an attempt----
Mr. Beckman. Fortunately, I don't embarrass very easily.
Mr. Delahunt. No. At least an attempt at giving me an
answer. There's a distinction between the manufacturer and the
gun store.
Mr. Beckman. I think there's a great distinction between
the manufacturer and the gun store, because you have somebody
who is the proverbial--18 inches away----
Mr. Delahunt. I'm not----
Mr. Cannon. The gentleman's time has expired and we have a
vote called----
Mr. Delahunt. Okay.
Mr. Cannon. --so if you don't mind, I'm going to give the
gentleman a chance to answer the question and you can clarify a
little bit if you want, but we probably do need to come to a
close.
Mr. Delahunt. I'll do the clarification at a later time.
Mr. Beckman. To answer your question, the person who is 18
inches away in a retail store, they have an obligation to
comply with the law, and if they're selling through straw
purchasers or if they're selling to somebody who is an
unqualified buyer, that is a violation of the law and that is
not something that is going to be barred under this statute.
Mr. Cannon. The gentleman's time having expired, Mr. Watt?
Mr. Watt. Mr. Chairman, Mr. Conyers has asked me to put
some things in the record, so I ask unanimous consent to insert
in the record a copy of the GAO report entitled, ``FBI Could
Better Manage Firearm-Related Background Checks Involving
Terrorist Watch List Records.''
Mr. Cannon. Without objection--oh, go ahead.
Mr. Watt. A copy of the bill that Mr. Conyers and
Representative Chris Shays introduced in response to the GAO
report; some information taken from a website which describes
the Five-Seven as a 20-round pistol that fires a 5.7 millimeter
bullet that will, quote, ``defeat most body armor in military
service around the world today;'' a copy of the bill
Representative Eliot Engel introduced which limits the use of
the Five-Seven firearm; and some articles which highlight
nearly a dozen or so assault weapons-related shootings which
all occurred in the past 9 months, many of the shootings
involving law enforcement officers.
Mr. Cannon. Without objection, so ordered.
[The material referred to is inserted in the Appendix.]
Mr. Cannon. I want to thank the panel for being here today.
The language which you said has helped us frame the language of
the debate that I think we're going to have. Actually, I think
it was more interesting year than it was last cycle, so perhaps
we can get to a vote in the House and also in the Senate and
make this thing move forward.
I just want to, not having taken my 5 minutes, let me just
make one point. That is, the hundreds of thousands of dollars
that your company, Mr. Beckman, spent on defense of these
lawsuits means the jeopardy of jobs in my district, and I would
prefer that we keep liability the way it historically has been
in America. That is personal, with personal responsibility, and
I think this bill does that.
Thank you very much, gentlemen. This hearing is adjourned.
[Whereupon, at 11:27 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress from the State of Utah, and Chairman, Subcommittee on
Commercial and Administrative Law
Good morning ladies and gentlemen; this hearing of the Subcommittee
on Commercial and Administrative Law will now come to order. We
consider today H.R. 800, the ``Protection of Lawful Commerce in Arms
Act,'' which was introduced on February 15 by Representative Stearns.
It currently has 157 co-sponsors, including myself.
H.R. 800 provides that a ``qualified civil liability action''
cannot be brought in any State or Federal court. ``Qualified civil
liability action'' is defined as a civil action or proceeding brought
by any person against a manufacturer or seller of firearms or
ammunition for damages resulting from the criminal or unlawful misuse
of such products. However, such term does not include an action against
a person who transfers a firearm or ammunition knowing that it will be
used to commit a crime of violence or a drug trafficking crime, or a
comparable or identical State felony law. It also does not include an
action brought against a seller for negligent entrustment or negligence
per se. The bill also includes several additional exceptions, including
an exception for actions in which a manufacturer or seller of a
qualified product knowingly and willfully violates a State or Federal
statute applicable to sales or marketing when such violation was a
proximate cause of the harm for which relief is sought. Other
exceptions include actions for breach of contract or warranty in
connection with the purchase of a firearm or ammunition; and an
exception for actions for damages resulting directly from a defect in
design or manufacture of a firearm or ammunition, when used as
intended. The bill also makes clear that only licensed manufacturers
and sellers are covered by the bill.
Tort law rests upon a foundation of personal responsibility in
which a product may not be defined as defective unless there is
something ``wrong'' with the product, rather than with the product's
user. However, in the last several years, lawsuits have been filed
against the firearms industry on theories of liability that would hold
it liable for the actions of others who use their products in a
criminal or unlawful manner. Such lawsuits threaten to separate tort
law from its basis in personal responsibility, and to force firearms
manufacturers into bankruptcy, leaving potential plaintiffs asserting
traditional claims of product manufacturing defects unable to recover
more than pennies on the dollar, if that, in federal bankruptcy court.
While some of these lawsuits have been dismissed, and some states have
acted to limit them in one way or another, the fact remains that these
lawsuits continue to be aggressively pursued. In January, the Supreme
Court refused to overturn a decision by the notorious Ninth Circuit
Court of Appeals that allowed a frivolous lawsuit brought against gun
manufacturers for a crime committed by a third party to go forward. One
of the personal injury lawyers suing the firearms industry--John
Coale--told The Washington Post--quote--``The legal fees alone are
enough to bankrupt the industry.'' Professor David Kopel (Ko-PELL) has
also stated that the cities suing the firearms industry--quote--``don't
even have to win . . . All they have to do is keep suing . . . They'll
kill [the industry] with the cost of defending all the lawsuits.''
Lawsuits seeking to hold the firearms industry responsible for the
criminal and unlawful use of its products by others are attempts to
accomplish through litigation what has not been achieved by legislation
and the democratic process. As explained by one federal judge--quote--
``the plaintiff's attorneys simply want to eliminate handguns.''
Under the currently unregulated tort system, personal injury
lawyers are seeking to obtain through the courts stringent limits on
the sale and distribution of firearms beyond the court's jurisdictional
boundaries. Such a state lawsuit in a single county could destroy a
national industry and deny citizens everywhere the right to keep and
bear arms guaranteed by the Constitution. Insofar as these lawsuits
have the practical effect of burdening interstate commerce in firearms,
Congress has the authority to act under the Commerce Clause of the
Constitution, as well as the Second Amendment.
Such lawsuits also directly implicate core federalism principles
articulated by the Supreme Court, which has made clear that--quote--
``one State's power to impose burdens on the interstate market . . . is
not only subordinate to the federal power over interstate commerce, but
is also constrained by the need to respect the interests of other
States . . .''
If the judicial system is allowed to eliminate the firearms
industry based on legal theories holding manufacturers liable for the
misuse of their products, it is also likely that similar liability will
be applied to an infinitely long list of other industries whose
products are statistically associated with misuse. Where will it end?
Knives are mostly used for nonviolent purposes, such as cooking, but
hundreds of thousands of violent crimes every year are perpetrated with
knives. We've already seen multi-million dollar lawsuits against the
makers of hamburgers and steaks for damages caused when other people
abuse those products and overeat. Surely the manufacturers of steak
knives will be sued next when such knives are used for criminal
purposes.
Congress must begin to stem the slide down this slippery slope. It
can do that by fulfilling its constitutional duty and exercising its
authority under the Commerce Clause to prevent a few state courts from
bankrupting the national firearms industry and denying all Americans
their fundamental right to bear arms. We need to preserve the benefit
of American-made weapons for our soldiers overseas who are so ably
defending all of us from terrorism. Let's not allow the American
firearms industry to be bankrupted so we're left to rely on foreign
countries to provide weapons for our own soldiers.
I now yield to Mr. Watt, the Ranking Member of the Subcommittee,
for an opening statement.
Prepared Statement of the Honorable Cliff Stearns, a Representative in
Congress from the State of Florida
H.R. 1225, the ``Terrorist Apprehension and Record Retention (TARR) Act
of 2005''
GAO Report entitled ``GUN CONTROL AND TERRORISM: FBI Could Better
Manage Firearm-Related Background Checks Involving Terrorist Watch List
Records
The ARMS site description of FN's Five-seveN Pistol
H.R. 1136, the ``Protect Law Enforcement Armor (PLEA) Act''
News Articles for the record offered by the Honorable John Conyers,
Jr., a Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary
Response to Post-Hearing Questions from a Minority Member to Bradley T.
Beckman, Counsel, Beckman and Associates, Counsel to North American
Arms
Article submitted by Lawrence G. Keane, Counsel, Beckman and
Associates, Counsel to North American Arms
Op-Ed Article from New York Daily News, Sunday, January 9, 2005,
submitted by Lawrence G. Keane, Counsel, Beckman and Associates,
Counsel to North American Arms
Letter from Walter Olson, Senior Fellow, Manhattan Institute for Policy
Research to the Honorable Chris Cannon