[Congressional Record Volume 149, Number 161 (Friday, November 7, 2003)]
[Senate]
[Pages S14265-S14266]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

  Mr. LEVIN. Mr. President, 2 weeks ago, the majority leader indicated 
that before this session of Congress comes to an end, the Senate may 
consider the Protection of Lawful Commerce in Arms Act, a bill the New 
York Times has said ``would give gun manufacturers and dealers a 
courthouse shield that tobacco and asbestos companies never had in 
being forced to come to terms with some of the damage their products 
inflict.'' While it now appears unlikely that the bill will be 
considered in the Senate this year, I would nevertheless like to 
express my concerns about it.
  The bill would rewrite well-accepted principles of liability law, 
providing the gun industry legal protections enjoyed by no other 
industry. Some claim that this bill would prevent frivolous lawsuits 
and protect firearm manufacturers, dealers, and distributors from being 
held responsible for the actions of criminals. While most gun dealers 
and manufacturers may conduct their business responsibly, this bill 
would shield negligent and reckless gun dealers and manufacturers from 
legitimate civil lawsuits.
  In fact, according to the Brady Campaign to Prevent Gun Violence and 
the Violence Policy Center, many meritorious cases could be dismissed 
under the bill. And according to a letter from University of Michigan 
Law Professor Sherman Clark, the case filed by the Washington, D.C. 
area sniper victims is among those that would not survive if the 
legislation were enacted. I ask unanimous consent that a copy of 
Professor Clark's letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        The University of Michigan


                                                   Law School,

                                  Ann Arbor, MI, November 6, 2003.
       Dear Members of the United States Senate: As a professor of 
     law at the University of Michigan Law School, I write to make 
     two points regarding the legal implications of S. 1805, the 
     ``Protection of Lawful Commerce in Arms Act.''
       First, S. 1805 would represent a substantial and radical 
     departure from traditional principles of American tort law. 
     Though described as an effort to limit the unwarranted 
     expansion of tort liability, the bill would in fact represent 
     a dramatic narrowing of traditional tort principles by 
     providing one industry with a literally unprecedented 
     immunity from liability for the foreseeable consequences of 
     negligent conduct.
       Second, more specifically, and by way of illustration, S. 
     1805, as currently drafted, would mandate the dismissal of 
     litigation currently pending against the dealer and 
     manufacturer who are alleged to have negligently enabled John 
     Allen Muhammed and Le Boyd Malvo to obtain the assault rifle 
     used in the recent D.C. sniper killings.


     S.1805 IS INCONSISTENT WITH TRADITIONAL PRINCIPLES OF TORT LAW

       S. 1805, described as ``a bill to prohibit civil liability 
     actions from being brought or continued against 
     manufacturers, distributors, dealers, or importers of 
     firearms or ammunition for damages resulting from the misuse 
     of their products by others,'' would largely immunize those 
     in the firearms industry from liability for negligence. This 
     would represent a sharp break with traditional principles of 
     tort liability. No other industry enjoys or has ever enjoyed 
     such a blanket freedom from responsibility for the 
     foreseeable and preventable consequences of negligent 
     conduct.
       It might be suggested that the bill would merely preclude 
     what traditional tort law ought to be understood to preclude 
     in any event--lawsuits for damages resulting from third party 
     misconduct, and in particular from the criminal misuse of 
     firearms. This argument, however, rests on a fundamental 
     misunderstanding of American tort law. American law has never 
     embraced a rule freeing defendants from liability for the 
     foreseeable consequences of their negligence merely because 
     those consequences may include the criminal conduct of third 
     parties. Numerous cases from every American jurisdiction 
     could be cited here, but let the Restatement (Second) of 
     Torts suffice:


  Sec. 449. TORTIOUS OR CRIMINAL ACTS THE PROBABILITY OF WHICH MAKES 
                       ACTOR'S CONDUCT NEGLIGENT

       If the likelihood that a third person may act in a 
     particular manner is the hazard or one of the hazards which 
     makes the actor negligent, such an act whether innocent, 
     negligent, intentionally tortious, or criminal does not 
     prevent the actor from being liable for harm caused thereby. 
     (emphasis supplied)
       Thus, car dealers who negligently leave vehicles 
     unattended, railroads who negligently manage trains, hotel 
     operators who negligently fail to secure rooms, and 
     contractors who negligently leave dangerous equipment 
     unguarded are all potentially liable if their conduct creates 
     an unreasonable and foreseeable risk of third party 
     misconduct, including illegal behavior, leading to harm. In 
     other words, if the very reason one's conduct is negligent is 
     because it creates a foreseeable risk of illegal third party 
     conduct, that illegal conduct does not sever the casual 
     connection between the negligence and the consequent harm. Of 
     course, defendants are not automatically liable for illegal 
     third party conduct, but are liable only if--given the 
     foreseeable risk and the available precautions--they were 
     unreasonable (negligent) in failing to guard against the 
     danger. In most cases, moreover, the third party wrongdoer 
     will also be liable. But, again, the bottom line is that 
     under traditional tort

[[Page S14266]]

     principles a failure to take reasonable precautions against 
     foreseeable dangerous illegal conduct by others is treated no 
     differently from a failure to guard against any other risk.
       S. 1805 would abrogate this firmly established principle of 
     tort law. Under this bill, the firearms industry would be the 
     one and only business in which actors would be free utterly 
     to disregard the possibility that their conduct might be 
     creating or exacerbating a potentially preventable risk of 
     third party misconduct. Gun and ammunition makers, 
     distributors, importers, and sellers would, unlike any other 
     business or individual, be free to take no precautions 
     against even the most foreseeable and easily preventable 
     harms resulting from the illegal actions of third parties. 
     Under S. 1805, a firearms distributor could park an unguarded 
     open pickup truck full of loaded assault rifles on a city 
     street corner, leave it there for a week, and yet be free 
     from any negligence liability if and when the guns were 
     stolen and used to do harm.
       It might appear from the face of the bill that S. 1805 
     would leave open the possibility of tort liability for truly 
     egregious misconduct, by virtue of several exceptions set 
     forth in Section 4(5)(i). Those exceptions, however, are in 
     fact quite narrow, and would give those in the firearm 
     industry little incentive to attend to the risks of 
     foreseeable third party misconduct.
       One exception, for example would purport to permit certain 
     actions for ``negligent entrustment.'' The bill goes on, 
     however, to define ``negligent entrustment'' extremely 
     narrowly. The exception applies only to sellers, for example, 
     and would not apply to distributors or manufacturers, no 
     matter how egregious their conduct. Even as to sellers, the 
     exception would apply only where the particular person to 
     whom a seller supplies a firearm is one whom the seller knows 
     or ought to know will use it to cause harm. The ``negligent 
     entrustment'' exception would, therefore, not permit any 
     action based on reckless distribution practices, careless 
     handling of firearms, lack of security, or any of a myriad 
     potentially negligent acts.
       Anotehr exception would leave open the possibility of 
     liability for certain statutory violations, variously 
     defined, including those described under the heading of 
     negligence per se. Statutory violations, however, represent 
     just a narrow special case of negligence liability. No 
     jurisdiction attempts to legislate standards of care as to 
     every detail of life, even in a regulated industry; and there 
     is no need. Why is there no need? Because general principles 
     of tort law make clear that the mere absence of a specific 
     statutory prohibition is not carte blanche for unreasonable 
     or dangerous behavior. S. 1805 would turn this traditional 
     framework on its head; and free those in the firearms 
     industry to behave as carelessly as they would like, so long 
     as the conduct has not been specifically prohibited. If there 
     is no statute against leaving an open truckload of assault 
     rifles on a street corner, under S. 1805 there could be no 
     tort liability. Again, this represents radical departure 
     from traditional tort principles.


 S. 1805 WOULD REQUIRE THE DISMISSAL OF PENDING D.C. SNIPER LITIGATION

       Litigation is currently pending in Washington State against 
     the manufacturer and dealer from whom John Allen Muhammed and 
     Leo Boyd Malvo obtained the assault rifle used in the D.C. 
     area sniper killings. The lawsuit, brought on behalf of 
     victims' families, alleges in essence that the defendants' 
     negligent practices and inadequate security made this weapon 
     available to Muhammed and Malvo. There is nothing innovative 
     or cutting edge about this litigation; and it is certainly 
     not based on any new or liability-expanding theory. Rather, 
     it alleges straightforward negligence, and is analogous to 
     the sort of case that might be brought against a contractor 
     who leaves explosives unguarded at a construction site. 
     Allegedly, the firearm in question was so poorly secured that 
     17-year-old Lee Boyd Malvo was able simply to pick it up and 
     walk out of the store.
       S. 1805, as currently drafted, would require the dismissal 
     of this litigation. The lawsuit pending is a ``qualified 
     civil action'' under the bill, because the harm came about 
     through the ``criminal or unlawful misuse of a firearm;'' and 
     the bill clearly provides that any such action ``pending on 
     the date of enactment of this Act shall be immediately 
     dismissed.''
       None of the exceptions enumerated in the bill would operate 
     to save the litigation currently pending in Washington State. 
     It is not based on an alleged statutory violation, but on the 
     alleged failure of the defendants to take due care to secure 
     firearms. Nor does the litigation fit the bill's narrow 
     statutory definition of ``negligent entrustment.'' As noted, 
     that theory would not apply in any event to the manufacturer 
     or distributor, and would not apply to a seller in this case, 
     whose alleged negligence consists not of supplying the rifle 
     to a particular person, but in so failing to secure it that 
     it was literally available to anyone who walked in the door.
       My aim here is not to make a claim about the merits of the 
     pending D.C. sniper litigation, but rather to illustrate the 
     scope of S. 1805. Whether or not the defendants in that case 
     were in fact so negligent in their keeping of firearms that 
     they should be found liable for negligence under Washington 
     State law is a question for the courts of that State. The 
     important point here is that under S. 1805, those defendants 
     would be free of liability no matter how careless they had 
     been. It is for this reason that the bill would require the 
     dismissal of that case. And it is this light that one can see 
     the true scope and import of S. 1805. The bill, as currently 
     drafted, would not simply protect against the expansion of 
     tort liability, but would in fact dramatically limit the 
     application of longstanding and otherwise universally 
     applicable tort principles by precluding, or requiring the 
     dismissal of, cases alleging traditional negligence 
     liability.
           Sincerely,
                                                 Sherman J. Clark.
  Mr. LEVIN. The two alleged snipers were both legally prohibited from 
buying guns, but through the apparent negligence of a gun dealer, they 
were able to obtain the military-style Bushmaster assault rifle. 
Reportedly, the gun dealer operated in such a grossly negligent manner 
that 238 guns inexplicably disappeared from its store. Among the 
missing guns were the alleged snipers' Bushmaster rifle. Several of the 
snipers' victims have filed a lawsuit against the dealer and others. 
Their case might not survive if this bill became law.
  This bill would set a dangerous precedent by giving a single industry 
broad immunity from civil liability and depriving many victims with 
legitimate cases of their day in court. If it is enacted, other 
industries will almost certainly line up for similar protections.
  Every single gun safety organization has expressed its opposition to 
this bill. This is special interest legislation. It should not be 
adopted.

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