[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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