[Congressional Record Volume 150, Number 21 (Wednesday, February 25, 2004)]
[Senate]
[Pages S1532-S1582]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to S. 1805,
which the clerk will report.
The assistant journal clerk read as follows:
Motion to proceed to the bill (S. 1805) 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.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 10:30 a.m. will be equally divided between the Senator from
Idaho, Mr. Craig, and the Senator from Rhode Island, Mr. Reed, or their
designees.
Who seeks recognition?
The Senator from Idaho.
Mr. CRAIG. Mr. President, the leader has obviously taken time. We
thought we were going to have an hour on each side. Is the vote still
scheduled for 10:30, or does the leader's time count in that?
The ACTING PRESIDENT pro tempore. The vote will be at 10:30. The time
has been reduced proportionately.
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Mr. CRAIG. I think we can live with that.
The ACTING PRESIDENT pro tempore. For the information of the
Senators, each side will have 23 minutes.
Mr. CRAIG. I believe several of my colleagues will want to be on the
floor to speak prior to the cloture vote. As the leadership has said,
there is a cloture vote on the motion to proceed to S. 1805, the
Protection of Lawful Commerce in Arms Act. We will vote on that at
10:30 this morning.
I regret that a few of our colleagues are forcing us to go through
this procedural step instead of simply moving to the bill. This bill is
supported by a strong bipartisan majority in the Senate, and I believe
as we work our way through it, that kind of bipartisan relationship
will clearly demonstrate itself. More than half the Senators, as I have
said, both Republicans and Democrats, are cosponsors of our
legislation, including the leadership of both parties. A very similar
bill passed in the House nearly a year ago by a 2-to-1 vote margin, or
nearly that margin.
Some of our colleagues have already announced they intend to play
politics with this bill instead of debating its merits. They have
already announced their intention to throw a variety of nonrelated
bills or amendments at this important--the legislation my guess is to
attempt to divert the legislation and delay the completion of its
consideration. However, I believe this morning's vote will demonstrate
that a majority of the Senate is, indeed, ready to proceed to this bill
and to debate it, as we should, offer legitimate amendments, debate
those amendments fully, and vote them up or down if necessary.
This legislation addresses a crisis in our courts and the integrity
of our courts because our courts are now threatened by the kind of
lawsuits that are simply not necessary but politically motivated. For a
long time, the trial bar has attempted to use the court system to
legislate social policy or legal activity in this country. What this
bill does, and what we have worked to do and why it has gained the
support it has, is craft a very narrow exception in the law so that we
still hold those responsible accountable for their actions under all
laws.
What we have always said within the law is that someone cannot be
held accountable for someone else's actions, and if someone is
attempting to reach back through the law when someone is innocent and
legal in their acts, then that kind of thing ought to stop. That is why
we have worked hard to craft it narrowly.
I think Americans clearly understand what we are attempting to do,
and that is our goal. I hope my colleagues will vote in favor of
cloture so that we can get into the full and robust debate of this
legislation. It is important.
I will turn to my colleague, Senator Reed, who will be handling the
opposition, and then I believe at that time we will probably have
several of our colleagues who wish to speak to it.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. REED. Mr. President, I rise in strong opposition to the so-called
Protection of Lawful Commerce in Arms Act. At a time when this country
is faced with extraordinary problems--with economic problems,
international problems--we are devoting very precious time to
legislation that is in behalf of a special interest rather than dealing
with the broader public interest, the economy of this country and the
international position and status of this country.
This is not legislation that is designed to protect the courts. This
is legislation that is designed to protect gun dealers, the gun
industry, manufacturers, and trade associations such as the National
Rifle Association. To suggest this is simply a response to politically
motivated cases flies in the face of cases that have been filed, like
the cases of the victims of the sniper shootings here in Washington,
DC; people like Bernice Johnson, whose husband was sitting on a bus
reading his paper waiting to go on and run his route that day and was
killed. It subsequently turns out the weapon that was used in this
crime came from a dealer in Washington State who apparently couldn't
account for 238 weapons. Mrs. Johnson is not suing to make a political
point. She is suing simply because she lost her husband, the father of
her children, and she would like to hold responsible those people who
were negligent.
The suggestion that this is a minor exception to the law when people
are acting legally, following a statute, flies in the face of our
concept of civil liability. It is not a question of just following the
law. It is also a question of being responsible for your actions, of
not being negligent, of taking due care in the performance of your
legal duties. This whole approach is something I think flies in the
face of basic common sense and the basic law of this country.
We are struggling with huge problems across this Nation. Yet we are
spending precious time here to try to deal with the interests of a
special group of people, a very influential group of people. We are not
out protecting the rights of Mrs. Johnson and others bringing this
suit. We are protecting the rights, frankly, of the gun industry to be
negligent and harm people through their negligence.
This legislation is not a minor, carefully crafted exception. It
would wipe out virtually every opportunity to assess whether a gun
dealer, a gun manufacturer, or a trade association was negligent in
their activities. It would bar virtually all negligence for product
liability in State and Federal courts and throw out all pending cases,
cases that have already been filed prior to this date, prior to the
potential enactment of this legislation. It is a sweeping immunity to
gun dealers, gun manufacturers, and even trade associations such as the
National Rifle Association.
It is no wonder the gun lobby dropped this legislation in the 107th
Congress, because we were paralyzed here in Washington by a sniper--two
snipers, it turns out--who killed people with weapons that were
obtained through the apparent negligence of a gun dealer. Yet these
individuals, these victims and their families, would be denied the
right to go to court because of this legislation.
It is also ironic that this would be the first gun bill to be enacted
since Columbine, a situation in which, again, young people, disturbed
young people, were able to go to a gun show using a straw purchaser,
using the loophole that exists in buying weapons without a background
check, and then went into a high school in Colorado and wreaked havoc.
Instead of closing the gun show loophole, we are now trying to open up
a huge highway for the negligence of gun dealers, negligence of the gun
industry.
Talking about the procedural correctness of this approach, this
legislation did not go through the Senate Judiciary Committee. There
were no hearings, no committee markups were ever scheduled. This very
complicated issue of balancing the rights of plaintiffs versus the
rights of defendants in the context of civil litigation was never fully
assessed through hearings. Now we are here and now we must have a
vigorous debate on this legislation. We must not only look to the
specifics of this legislation but also to its impact across the country
and address some larger issues of gun violence in the United States.
Two years ago or so, it was the Washington area snipers who paralyzed
this country, certainly paralyzed this area of the country. Today there
is apparently one or perhaps more gunmen who are stalking innocent
people on the highways of Ohio.
Gun violence exists and we should do more to stop it. We should use
this opportunity to pass provisions that will close the gun show
loophole, that would reauthorize the ban on assault weapons that has
operated in the last few years at least to keep the most dangerous
weapons out of the hands of some very dangerous people. We should
require effective safety locks on handguns. We should improve the
national instant criminal background check system so there is a more
accurate and more effective system of checking.
These are the things we should be doing and I hope we can have an
opportunity to offer amendments in this regard. Every day there are
hundreds of thousands, millions of families who struggle to do all they
can to protect their children and themselves. Here we are telling the
gun industry: Don't join that effort to make people safer. You can
ignore reasonable, responsible actions. You can be negligent and you
will not be brought to justice.
I think that is wrong. I think that is bad law, bad public policy. I
urge my colleagues to oppose this legislation, to
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oppose this motion to go forward. There are much more pressing demands
in this country we should address today: the unemployed, those who are
struggling to find jobs in a jobless economy; funding fully our
national defense. We have a budget that was presented to us that does
not include any money for Iraq and Afghanistan. That is something we
should be focused on today.
Mr. DODD. Will my colleague yield?
Mr. REED. I am happy to yield.
Mr. DODD. I commend my colleague for his statement this morning. I
want to underscore the last point he is making.
Here we are with the highest unemployment figure since the Great
Depression and we are debating the gun issue. I come from a State that
probably has more manufacturers of guns than any other in the country.
I think Connecticut is still the largest manufacturer. The idea we are
going to take an entire industry and exclude it from liability should
there be a just cause to bring them to a bar of justice is rather
remarkable to me in light of everything else going on in the country.
So I commend my colleague from Rhode Island. We come from the same
region of the country. We have lost 45,000 jobs in my State in the
manufacturing sector in the last 30 months. I ask whether, in his view,
there aren't higher priorities we ought to be addressing other than
excusing an entire industry from liability against negligence?
Mr. REED. Reclaiming my time, I agree entirely with the Senator from
Connecticut. Rhode Island, like Connecticut, is seeing its
manufacturing base evaporate. These are real problems. These are
problems that affect families throughout this country. This is truly in
the public interest, finding an answer to disappearing jobs throughout
the country. Yet today we want to protect one very special interest.
Let me add, too, as the Senator points out, not only are we trying to
give an unprecedented immunity to one industry, this industry is
virtually unregulated in the sense of other industries. It is not
controlled by the Product Safety Commission, which would look at the
product design. So one of the only recourses an individual has with
respect to negligence claims is through the courts. Here we are eroding
that avenue.
Mr. DODD. I thank my colleague. If he will yield further?
Mr. REED. I will.
Mr. DODD. I thank my colleague. I will join him in opposing cloture
on this bill and I hope the leadership would move on with another issue
that I guarantee has a far higher priority with the American public
than to satisfy one industry's fear that they might have to appear
before the bar of justice to explain their behavior. The idea we would
exclude this industry--we tried to do that on another issue on the MTBE
issue that came up on the energy bill. As my colleague may know, I
offered the securities reform bill, the National Standards legislation,
Y2K, terrorism insurance. I am also a strong advocate of class action
reform. I am not an opponent at all of trying to reform the tort
system. But the idea that we would eliminate an entire industry from
liability due to the potentiality of their products for causing great
harm is amazing to me. Given the challenges our country faces, it is
amazing we would spend time on this legislation.
Mr. DURBIN. If the Senator will yield, I thank the Senator from Rhode
Island for his leadership on this issue. I worked with him and I will
continue. I would like to ask him this question.
Am I correct that yesterday the item of business before us was to
exempt individuals who had been held liable for creating medical
injuries from their full accountability and liability in medical
malpractice, including pharmaceutical companies and medical device
companies? That was the item on the agenda yesterday. Now, today, we
are taking up the exemption from liability for gun manufacturers and
dealers. Does the Senator from Rhode Island detect a pattern here, that
each day of the week we are going to try to single out another special
interest group and give them an exemption from accountability and
liability in courts in America?
I think he is accurate in his description of what we have been doing
in the last couple of days, which is trying to not provide for the
public interest but to protect special interests, and not to provide
individual citizens a right, regretfully, when they have been harmed,
at least a right to make a determination of who should be held liable,
but simply and categorically strip away these rights and to protect
industries that have powerful influence in Washington.
Mr. DURBIN. Mr. President, I ask the Senator: Did he not say this
bill has never gone through a committee for hearings and for our close
scrutiny in determining exactly what the impact would be?
Mr. REED. Mr. President, the Senator is right. There have been no
hearings. This bill has been brought to the floor directly. That is why
it is incumbent for us to take a greater amount of time to look over
the bill.
Mr. DURBIN. If the Senator will yield for a further question, if we
look at existing law in America and at companies, manufacturers, and
interest groups that are currently exempt from being held accountable
in a courtroom for misuse of their products or selling a product, the
only one I can think of is the Price-Anderson law relative to the
nuclear power industry. There are a lot of different exceptions where
we have said you can't be sued no matter what you do. Is there a long
list we are adding to with this legislation?
Mr. REED. The only exception other than Price-Anderson I can think of
is General Aviation Aircraft, over 18 years old, that has special
protection. That is a very narrow protection, and I think it is nothing
like contemplated in this legislation.
I must also note those aircraft are supervised by the FAA. There is
significant Federal involvement in the design and airworthiness, things
that do not apply at all to a weapon.
Mr. DURBIN. If I may ask the Senator a further question, if he will
yield for a question, is it my understanding if we pass this bill that
individuals--for example, the victims of the District of Columbia
snipers--who are going after gun dealers who were selling massive
amounts of weapons which they could not even account for, that we may
in fact eliminate the lawsuits brought by the surviving families of the
DC snipers against the gun dealers who were just negligently and
wantonly selling guns without any consideration as to whether they
could be misused?
Mr. REED. That is my understanding. It is not only my understanding,
but it is the understanding of various counsel who looked closely at
this legislation and rendered an opinion to that effect.
Mr. DURBIN. If the Senator would further yield for a question, we had
two individuals we believe who were absolutely terrorizing the
Washington, DC area and killing people with sniper rifles. Then we
identified where that rifle was purchased and found out this Bull's Eye
dealer--whatever the name was--was not even keeping good records of the
guns that were being sold. The families of the victims who were killed
by the DC snipers believe the gun dealer should be held liable and
accountable for its negligence in selling guns without keeping the
records that are required. And the Senator from Rhode Island is telling
me we are bringing a bill to the floor of the Senate to exempt the gun
dealer who sold the weapon that killed these innocent people in the
Washington, DC area from liability. Is that what this debate is all
about?
Mr. REED. That is my view entirely. That is what this legislation
will accomplish. It will not only prospectively provide barriers to the
courts for victims of negligence like this, but it will reach back and
protect these individuals who apparently--at least arguably--were
negligent in not properly controlling over 230 weapons, not just the
one the snipers used, which disappeared.
Mr. DURBIN. I ask the Senator from Rhode Island: If we are going to
decide to pass laws here on a daily basis to exempt companies across
America from being held accountable for their negligence and for
wrongful conduct, does the Senator from Rhode Island share my belief
this is going to become an auction process where the Senate, frankly,
will decide which special interests we will honor on a weekly basis to
make certain they cannot be held accountable by a jury of their peers
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and by judges so that individuals who were wronged, like the victims of
the District of Columbia snipers, will eventually find they have no
recourse? They cannot go to the White House on a gun issue because the
President is on the side of the gun lobby. They cannot go to Congress
which is controlled by Members who apparently pay a lot more attention
to the gun lobby than gun victims. So we are closing the courthouse
doors to the victims of gun violence by the passage of this
legislation.
Mr. REED. I think the Senator is entirely correct. His insight also
is accurate in that I cannot see that other industries, if we pass
this, won't come to us and say, We have very valid reasons, too. We are
being assailed every day by these claims. This sets a very dangerous
and very unfortunate precedent.
Mr. President, how much time do I have remaining?
The ACTING PRESIDENT pro tempore. Six minutes 20 seconds.
Mr. DODD. Mr. President, will my colleague yield for an additional
question? I was curious whether my colleague would share with us what
problem this legislation seeks to solve. Normally, when you bring a
bill to the floor you try to solve the problem. I wonder if my
colleague has any idea of the volumes of lawsuits that have been
brought against gun manufacturers that the author of this legislation
is trying to solve.
Mr. REED. Very few suits have been filed. There is not an epidemic
throughout the Nation, but probably the best evidence is from the
companies themselves. Let me make reference to the 10-K report on
weapons.
In the opinion of management, after consultation with
special counsel, it is not probable and is unlikely that the
outcomes of these claims will have a material adverse effect
on the results of the operations or the financial condition
of the company as managers believe it has provided adequate
reserves.
So in 10 cases, in the statement required to be sworn to under the
securities laws, Smith & Wesson and other companies have essentially
said there is not a material problem.
At this point, because I know there are other speakers who would like
to respond----
Mr. DODD. If the Senator will yield for one more additional question,
I want to make the point that my colleague is absolutely correct.
Further, is he aware that over the last 10 years there have been 33
cases brought by municipalities--one in the State of New York--and none
of them have resulted in conclusions that have been harmful to the gun
manufacturing industry? With a population of 280 million people, there
have been 33 or 34 cases in almost 10 years, not one of which has
resulted in an adverse decision for the manufacturers. Is my colleague
aware of that?
Mr. REED. I am aware of it. The Senator is correct. We think there
are less than 100 cases.
Mr. DODD. The police chiefs from across the country are urging the
Senate not to protect gun dealers who arm killers.
Mr. REED. I am aware of that. In the course of this debate, I hope we
can emphasize that point.
I retain the remainder of my time and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Idaho.
Mr. CRAIG. Mr. President, before I yield to the Senator from Texas,
let me make a couple of comments in response to what my colleagues have
been saying this morning.
Let's take the gun dealer in Tacoma, WA who is alleged to have sold
to the sniper who held this area hostage for a time with a gun. His
license has been revoked. There is a criminal investigation, and BATF
has asked the Justice Department to file felony charges against the
dealer. The business is now closed and broke.
In other words, what I am saying is if this licensed gun dealer
violated current law, he will be shut down. What we are talking about
here again is a narrow piece of legislation that deals with civil
liability--not product liability--and in the case of current Federal
law it does not touch it. The day in court comes.
But what the Senator from Connecticut didn't say is even his own gun
manufacturers and their associations in those some 30-plus lawsuits
have spent millions and millions of dollars before the court system
defending themselves, and to date the judges have thrown them out. This
is called ``death through attrition'' by simply taking to the courts
and constantly bringing to the courts these kinds of arguments. Here is
the reality.
Mr. DODD. Mr. President, will the Senator yield?
Mr. CRAIG. I can't yield at this time. My time is limited. We are
going to be on this for days, as the Senator knows. We will debate it
thoroughly.
But what he is suggesting is running the risk of losing all of his
gun manufacturers and the hundreds of jobs that are out there. He is
concerned about jobs. I think he would be concerned about keeping the
jobs he has in his home State. That is part of this discussion.
Mr. DODD. Will the Senator yield?
Mr. CRAIG. I can't yield. Time is limited.
Mr. DODD. The Senator made reference to the Senator from Connecticut.
Mr. CRAIG. I did it fairly. You are here on the floor. We will talk
about this more in the hours to come.
Let me yield to my colleague from the great State of Texas.
The ACTING PRESIDENT pro tempore. The Senator from Texas.
Mr. CORNYN. Mr. President, I rise to say a few words on our broken
civil justice system. Today we are debating yet another common sense
reform proposal, the Protection of Lawful Commerce in Arms Act.
Despite many recent opportunities, Congress has been unable to enact
meaningful tort reform, largely because of strong resistance by trial
lawyers and their allies in this chamber. Just yesterday we failed to
reach cloture on medical liability reform that would protect our
mothers and their children. We have been blocked from enacting broader
medical liability reform.
And we saw this drama played out last year with the Senate's
failure--by one vote--to end a filibuster of the Class Action Fairness
Act and give the bill a vote on the floor. Despite the fact that a
bipartisan majority stands ready to pass that bill, the obstructionist
opposition prevents us from acting.
I believe our civil justice system is badly broken. It serves the
interests of the few at the expense of the many. It has become almost
entirely directed not at dealing out justice, but at finding as many
scapegoats as possible, the wealthier the better.
It used to be that if you slipped and fell on a sidewalk, you picked
yourself up and kept on walking. But nowadays, far too many trial
lawyers continue to feed the idea that instead of getting up again, you
ought to sue the maker of the sidewalk for making it too hard, the
maker of your shoes for not putting enough ridges on your soles, and
everyone in your near vicinity for not rushing to catch you as you
fell. After all, there is money to be made.
The current system rewards lawyers and short-changes the real
victims. There is no doubt that this system of over-litigation cannot
last without more negative results. And without reform, I fear the
entire system will collapse under its own weight.
Today, the Senate has the opportunity to take a step in the right
direction on this problem, by passing the Protection of Lawful Commerce
in Arms Act.
This bill is simple: it provides that lawsuits may not be brought
against lawful manufacturers and sellers of firearms or ammunition if
the suits are based on criminal or unlawful use of the product by
someone else--when a criminal, not the manufacturer, commits a crime.
Such lawsuits are not intended to find real fault, but to play on the
emotions of a jury and drive the gun industry out of business, holding
legitimate, law-abiding manufacturers and dealers liable for the
intentional and criminal acts of others.
This bill reinforces years of legal precedent--that individuals and
businesses are responsible for the harm they case, not for the actions
of third parties over whom they have no control.
Many Judges across the Nation recognize the ridiculous nature of
these suits. The Louisiana Supreme Court struck down New Orleans' right
to bring such a suit in the face of State law forbidding it, and said
``this lawsuit constitutes an indirect attempt to regulate the lawful
design, manufacture, marketing and sale of firearms.''
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In dismissing New York State's case last year, a New York appellate
court observed ``the plain fact that courts are the least suited, least
equipped, and thus the least appropriate branch of government to
regulate and micro-manage the manufacturing, marketing, distribution
and sale of handguns.''
Thankfully, many States are acting: 33 States have enacted some form
of legislation to prevent junk lawsuits against the firearms industry
based on the criminal behavior of others. We must follow the lead of
the majority of States, and pass this common sense measure.
Don't allow any illusions about the intentions of the people involved
in these suits. At an American Bar Association symposium in 1999, one
of the plaintiffs' attorneys for the antigun lawsuits explained that
the attorneys had read the Dun & Bradstreet reports on the firearms
companies, estimated how much the companies could spend defending
themselves against litigation, and then filed so many cases in so many
jurisdictions that the gun companies would not be able to spend the
money to see the cases through to a verdict. The irresponsible tort
community is simply looking for another law-abiding business to prey
on.
And even if all the gun companies in America were put together, they
would not constitute a single Fortune 500 company--so the gun companies
are much more vulnerable to abusive litigation than deep-pocketed
giants such as the New York Times.
The real way to stop gun crime in America is simple: those who abuse
the constitutional right to keep and bear arms by using firearms to
commit crimes must be aggressively prosecuted and punished. When I was
Attorney General of Texas, I joined with then-Governor Bush to launch a
program we called Texas Exile. That program provided local prosecutors
with the funds to get more than 2,000 guns off the streets and to issue
more than 1,500 indictments for gun crimes, resulting in almost 1,200
convictions in its first 3 years of existence alone.
And when President Bush came to Washington, he built upon our success
in Texas by making Project Safe Neighborhoods one of his top
priorities. Project Safe Neighborhoods expands on existing programs
that target gun crimes in each State. It is a nationwide commitment to
reduce gun crime in America by networking these existing local programs
and providing those programs with the additional tools necessary to be
successful.
The Bush administration has committed more than $900 million to this
effort over three years, using funding to hire new Federal and State
prosecutors, support investigators, providing training, distribute gun
lock safety kits, deter juvenile gun crime, and develop and promote
community outreach efforts as well as to support other gun violence
reduction strategies. And Texas has seen great success with the
integration of Project Safe Neighborhoods with the existing Texas Exile
infrastructure.
These are the kinds of steps that get real results, not ill-
intentioned frivolous lawsuits. I question the integrity of any system
that would reward such abject agreed. We need to work in this body to
fix our broken civil justice system, and this bill is a good place to
start.
I am somewhat bemused by the arguments I have already heard this
morning on this motion to invoke cloture. In fact, we want to have a
debate. Those who oppose even having a debate are, I guess, not going
to allow it to happen. I hope they are not successful in blocking
debate. It is healthy to have a debate.
I am bemused by the suggestion that this is a narrow bill directed
toward special interests. Yesterday, we had a narrow bill to protect
the special interests known as pregnant women and children. However,
the trial lawyers prevailed and we were unable to get that commonsense
tort reform measure on the floor for debate. I submit that the
suggestion is misguided that this is a special interest piece of
legislation. This is in the public interest.
I suggest the worst thing about the arguments we hear from the other
side of this debate is they are misdirected. In other words, they
contend this bill would immunize lawsuits against gun manufacturers for
what is a lawful activity. The fact is, there is a shrine in our
Constitution, the right of the people to keep and bear arms. What they
are trying to do would have the effect of impeding and impairing that
constitutional right because, as Senator Craig has pointed out, there
have been many lawsuits filed against gun manufacturers for the very
fact of making a lawful product, none of which, so far as I understand,
has been successful but which are destroying these companies which are
in the business of manufacturing a lawful product, destroying jobs, and
impairing ultimately the constitutional right of citizens, people like
you, me, and others in this room from owning firearms to protect our
homes and our property, our families for use in sporting events, for
hunting, and other lawful and decent activity.
The focus of the opponents of this bill is totally misguided. What we
ought to focus on is the criminals who use firearms illegally to commit
crimes. In fact, I have had a little experience in this area as
attorney general of Texas. With the cooperation of then-Governor Bush,
we created a program in Texas called Texas Exile. I wish we could claim
we originated the idea but we borrowed the idea from Richmond, VA,
something called Project Exile, which was a cooperative effort of
local, State, and Federal law enforcement officials to target criminals
who use guns to commit crimes and convicted felons who could not even
legally own a firearm. The great thing about that was, No. 1, it was so
successful; No. 2, it was not a wedge issue which, clearly, there is an
attempt to inject wedge politics in this debate. But it was an issue
which everyone could agree: The NRA, the gun control folks, everyone
came together and said, yes, that is what we ought to do. Let's focus
on the criminals who misuse this product.
Indeed, in 2001, Texas led the Nation in the number of criminal
defendants who were indicted for weapons violations in Federal court.
In 2000, there were 757 in that year alone, which was almost double the
number of indictments in 1999. This amount was greater than the number
of defendants indicted on similar charges in the States of New York and
California combined.
How were we able to use the existing criminal law in a way that made
our streets and our communities and our States safer? We simply
enlisted the help of local law enforcement to work with Federal law
enforcement authorities so when a criminal was caught illegally
possessing a firearm--illegal because a felon cannot legally possess a
firearm--or someone under a protective order--it is a Federal offense
to carry or possess a firearm when you are under a protective order--or
someone who simply used a gun to commit a bank robbery or any other
offense, we focused on the gun possession portion of that and were
successful in leading the Nation in the number of prosecutions. That
sends a very powerful message that if you carry a gun illegally or if
you use a gun illegally to commit a crime, then we are coming after you
with everything that the law allows.
It is a powerful deterrent to the sort of illegal conduct that causes
the harm that the opponents of the bill--and I grant their good faith;
I think they believe in good faith that what they are proposing is a
path to a good result, a sound result--that is reducing injuries,
reducing death, but it is misguided. All this does is encourage
lawsuits against a manufacturer of a legal product when someone
criminally misuses that product to cause another person harm.
As the Senator from Idaho has noted, this is death by 1,000 cuts or
death by 1,000 lawsuits, so to speak, because anytime a gun
manufacturer is sued, even with a frivolous lawsuit, they have to hire
a lawyer, they have to defend that case at greater expense which
threatens their economic viability which in turn threatens the jobs of
the people who work there in that company.
I wish we could have a broader debate on commonsense tort reform
generally, but we have seen what happens when we try to raise these
issues. We could not even get cloture on a class action reform bill. We
have not been able to bring up asbestos reform which is damaging a lot
of good job providers in this country and not benefiting the people who
are truly sick but only the lawsuit industry which benefits from
churning the cases without really benefiting the people who need
compensation.
We found in almost every instance--medical liability, class action
reform,
[[Page S1537]]
or asbestos reform--we are simply not able to even get a debate. We
cannot even get cloture because we cannot find 60 people in the Senate
who are willing to stand up and say this is a serious problem. It is
raising the costs of health care. It is bankrupting companies in the
case of asbestos. It is an abuse of the class action system in the case
of class action reform where lawyers get millions and consumers get a
coupon.
So the strategy has been, and it is a good strategy, to try to
identify certain types of cases. Yesterday it was obstetrical liability
cases which have threatened the ability of pregnant women to find
doctors to simply deliver their babies.
I recounted in my own State in 154 different counties a woman cannot
even find a doctor to deliver her baby, an obstetrician, because people
are leaving the practice. It is pricing out of reach health care
liability insurance, putting people out of business, hospitals out of
business, and we are simply seeing the tail wag the dog in each of
these areas. The tail seems to be the special interest groups that like
the status quo, which is a broken civil justice system that does not
serve justice.
I commend the Senator from Idaho for bringing up this bill which
admittedly is a narrow bill. Boy, I wish we could have a broader debate
on tort reform, commonsense tort reform generally. When we talk about
what causes job loss in this country, it is the regulation by
litigation, it is the tort tax that imposes additional costs on
consumers and discourages innovation and entrepreneurs in this country.
We are not talking about locking the courthouse door and denying
someone access to justice. I believe strongly we must retain meaningful
access to justice for anyone who is harmed by the wrongful conduct of
any other person. But the system right now benefits the few at the
expense of the many in ways that I doubt consumers really understand
because it adds costs to their products, and it makes it harder for
entrepreneurs and small businesses to open their doors and to hire
people to allow them to provide for their families.
So here we are, rather than taking on a broader tort reform bill, we
are left with a narrow bill. I congratulate the Senator from Idaho for
it. I believe we should protect manufacturers of lawful products whose
products are misused by criminals. Let's focus on the criminals, not
the people who are providing jobs and are producing a lawful product.
With that, I yield back any remaining time I have to the Senator from
Idaho.
The ACTING PRESIDENT pro tempore. The Senator from Idaho.
Mr. CRAIG. Mr. President, I thank the Senator.
May I inquire of the time remaining for both sides?
The ACTING PRESIDENT pro tempore. The majority has 5 minutes 40
seconds. And 4 minutes 17 seconds are remaining for the minority.
Mr. CRAIG. I will reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. REED. Mr. President, I yield such time as he may consume to the
Senator from Massachusetts.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
Mr. KENNEDY. Will the Chair notify me when I have a half minute left?
Mr. President, at a time when capitulation to special interest groups
is a major issue in the Presidential election campaign, it is difficult
to believe that the Republican leadership in the Senate is serious in
asking the Senate to accept this flagrant special interest legislation.
I urge my colleagues to break the stranglehold of the gun industry and
gun dealers and oppose proceeding to this shameful legislation.
The list of issues that demand the Senate's immediate attention is
long. Unemployment is a crisis for millions of citizens. Retirement
savings are disappearing. School budgets are plummeting. College
tuition is rising. Health care costs and prescription drug costs are
soaring. Federal budget deficits extend as far as the eye can see. The
war in Iraq has brought new dangers, imposed new costs, and more and
more American lives are being lost each week.
The well-being of most American families has declined at an alarming
rate in the past 2 years. We can and should be acting to meet these
challenges. Instead, the Republican leadership wants to spend time on
this flagrant pro-special-interest, anti-victim, anti-law-enforcement
legislation to give broad legal immunity to the gun industry.
This bill's proponents claim they are targeting ``frivolous
lawsuits.'' But we all know that its real effect would be to prevent
victims of gun violence--police officers, innocent bystanders, and
their families--from pursuing valid claims in State and Federal courts.
This special interest bill is a direct attack on the interests of law
enforcement. Police Chief William J. Bratton of the Los Angeles Police
Department recently told it like it is:
To give gun manufacturers and gun dealers immunity from
lawsuits is crazy. If you give them immunity, what incentive
do they have to make guns with safer designs, or what
incentive do the handful of bad dealers have to follow the
law when they sell guns.
The bill would prevent the families of the victims of the DC snipers
from holding accountable the gunshop in the State of Washington that
somehow ``lost'' the assault rifle that was used in the attacks. Under
current law, if negligence is proved, the families of the victims are
entitled to seek redress. If this bill is enacted, the gunshop will be
totally immunized from liability, and the families' lawsuits will be
thrown out.
Unbelievably, the gun industry and the tobacco industry are the only
two consumer industries that are not subject to Federal consumer safety
regulations. America does more today to regulate the safety of toy guns
than real guns, and it is a national disgrace.
The gun industry has worked hard to prevent Federal consumer safety
legislation. At the same time, it has conspicuously failed to use
technology to make guns safer, and it has attempted to insulate itself
from its distributors and dealers, once the guns leave the factory.
Now it wants to become the only industry in the Nation exempt from
lawsuits. The overwhelming majority of Americans believes that gun
dealers and gun manufacturers should be held responsible for their
irresponsible conduct, like everyone else.
The ACTING PRESIDENT pro tempore. The Senator has 30 seconds
remaining.
Mr. KENNEDY. Surely, the Republican leadership has higher domestic
priorities than providing legal immunity for the gun industry. Surely,
we can do better than debate this extraordinarily reckless and
unprecedented special interest legislation.
I withhold the remainder of my time.
The ACTING PRESIDENT pro tempore. Who yields time?
There are 16 seconds remaining for the Senator from Rhode Island and
5 minutes 13 seconds remaining for the Senator from Idaho.
Mr. CRAIG. Mr. President, if the Senator wants to make his closing
comments before I make mine, what time does he have left?
The ACTING PRESIDENT pro tempore. Sixteen seconds.
Mr. CRAIG. All right. It is obvious, Mr. President, by those who have
already come to the floor, that this will be a very spirited debate.
The great tragedy of debates such as this is that they oftentimes fail
to read the bill before them, and they make the kinds of salient
political statements that have nothing to do with the legislation at
all.
I invite my colleagues, on S. 1805, to go to section 4 of the bill
and see how narrowly we have crafted this bill to go directly at civil
lawsuits that involve a third party criminal act and trying to reach
back through the courts and back through the law to say to a licensed,
legitimate, legal firearms dealer or a licensed, legal gun manufacturer
that they have to be responsible for the criminal act of another. That
simply has not been the basis of law in our country ever, nor should it
be allowed to be the basis of law today.
But if that gun manufacturer and if that licensed gun dealer violate
civil law, violate the law of the land, then this bill does not hold
them harmless. That is the crux of the issue. That is what is important
about this legislation.
There are a lot of ways to achieve a political goal in this country.
Many have found that you can file frivolous and junk lawsuits in the
court, and you
[[Page S1538]]
can slowly but surely bleed down those who you file them against
because they have to come and defend themselves, even though the courts
constantly throw out these lawsuits. Hundreds of millions of dollars
have already been spent by legitimate gun manufacturers that make those
fine weapons for our men and women in Iraq, that make those fine
weapons for our civil law enforcement officers wearing the blue
uniforms on the streets of America.
They would say to them: No, we are going to bust those companies. And
guess where that cop is going to get his gun. From China or Yugoslavia.
Or our men and women in uniform are going to have to rely on foreign
gun manufacturers because we have bankrupt and thrown out of this
country those acting under the law in a legitimate way.
That is what S. 1805 is about. It is not about the political agenda
of many. It is about what we have said in this country is a legitimate
product. We even said so in the Constitution. Most other products we do
not talk about in the Constitution. They were not invented. But we did
speak to guns and their value in this country. Now we are saying: No,
we are going to play the political game. We are going to drag them
through the courts. And they are going to spend all kinds of money to
do so.
I am not willing to hold anybody harmless who violates the law. I am
not willing to hold anybody harmless who allegedly acts in a criminal
way. Let's find out if they did. The courthouse door is not locked by
S. 1805. The courthouse door is still open. This law will be applied in
arguments before the court. A judge will make the determination of
whether S. 1805 fits or it does not fit. Was the licensed dealer or the
gun manufacturer acting in a legal way or acting against current
Federal law? That is how narrowly we have defined it.
Even the minority leader, Senator Daschle, has joined with me to
clarify and refine this bill even more--he will be to the floor to
speak to that issue--as we worked to make sure we are on point
directing this specifically at those who continually play the game at
the legal bar of this country to file the frivolous or the junk
lawsuits to drive a legitimate operating American company and industry
out of business.
I hope my colleagues will come now and vote on the cloture motion to
allow us to proceed so we can fully debate the bill, bring the
necessary amendments that others will have for or against the purpose
of this legislation. We will vote them up or down and move it through
the Senate. That is our job. I know there are a lot of issues that are
important. But there are a lot of Americans who view this as a very
important issue for our country.
I yield back the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. REED. Mr. President, the legislation before us is a benefit to
special interests, the gun lobby. It will deny individual Americans the
right to go to court to challenge the conduct of individuals who
negligently or allegedly negligently sold weapons. It would be a great
distortion of the law. I hope my colleagues will resist this
legislation.
Cloture Motion
The ACTING PRESIDENT pro tempore. The hour of 10:30 having arrived,
under the previous order the clerk will report the motion to invoke
cloture.
The assistant legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the motion to
proceed to Calendar No. 363, S. 1805, 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.
Bill Frist, Orrin Hatch, Mitch McConnell, Larry Craig,
Jim Talent, John Ensign, John Cornyn, Conrad Burns,
Saxby Chambliss, Craig Thomas, Don Nickles, Rick
Santorum, Trent Lott, John Sununu, Mike Crapo, Lamar
Alexander, Wayne Allard.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 1805, 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, shall be brought to a
close?
The yeas and nays are required under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards), the Senator from Massachusetts (Mr. Kerry), and the Senator
from Georgia (Mr. Miller) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay''.
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The yeas and nays resulted--yeas 75, nays 22, as follows:
[Rollcall Vote No. 16 Leg.]
YEAS--75
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carper
Chafee
Chambliss
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Daschle
Dayton
Dole
Domenici
Dorgan
Ensign
Enzi
Feingold
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Jeffords
Johnson
Kohl
Kyl
Landrieu
Leahy
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reid
Roberts
Rockefeller
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--22
Akaka
Boxer
Cantwell
Clinton
Corzine
DeWine
Dodd
Durbin
Feinstein
Graham (FL)
Harkin
Hollings
Inouye
Kennedy
Lautenberg
Levin
Mikulski
Murray
Reed
Sarbanes
Schumer
Wyden
NOT VOTING--3
Edwards
Kerry
Miller
The ACTING PRESIDENT pro tempore. On this vote, the yeas are 75, the
nays are 22. Three-fifths of the Senators duly chosen and sworn having
voted in the affirmative, the motion is agreed to.
Mr. KENNEDY. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CRAIG. Madam President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so
ordered.
Mr. CRAIG. Madam President, I hope now, with a vote of 75 to 22, we
could move on to the bill. Certainly, it is our intent to allow this
bill to be debated fully and for amendments to be offered. Time is
running. Some Senators spoke this morning to the urgency of time to get
on to other issues. Certainly, that is important to all of us. So I
hope we would be able to do so. I hope now that Senators could come to
the floor with their arguments, but most importantly I hope we could
move to the bill itself.
As you know, under the cloture rule there would be allowed 30 hours.
I hope those in opposition would not take that 30 hours and allow us to
get to the bill. What we are trying to do in S. 1805 is very narrowly
go through the law and allow law-abiding gun manufacturers and law-
abiding dealers to be exempt from the kind of harassment and junk
lawsuits that we have now seen filed in over 30-plus different venues
over the last several years. All those cases then brought to court were
thrown out of the court, and the reason was quite simple. The judge
looked at them and said: This lawsuit is of no value.
Here you had a law-abiding manufacturer, adhering to the laws of the
United States, making a legitimate product, and that person cannot be
responsible for a third party action that might have been a criminal
action and the trial bar trying to reach through that person to a
legitimate gun manufacturer or to a licensed gun dealer.
[[Page S1539]]
In doing so I believe these suits were intended, of course, to drive
the gun industry out of business by holding manufacturers and dealers
liable for the intention and the criminal acts of that third party over
whom we all know they have had absolutely no control.
Lawsuits have been filed in multiple States with demands of massive
monetary damages on a broad and varying range of injunctive relief
relating to the design, manufacture, distribution, marketing, and the
sale of firearms. These demands, if granted, would create major
judicially imposed restrictions on interstate commerce in firearms and
ammunition.
Let me, though, say with that comment, this deals with civil cases,
not product liability. If a gun malfunctions and someone is damaged, or
if the gun manufacturer and the gun dealer were violating civil law,
then, of course, this issue that we are debating today has no value. We
have clearly narrowed it and cleanly gone after the very kind of
lawsuit that we have, as I mentioned, seen over the last several years.
The bill does something very important to the underlying principles
of our country. It reinforces centuries of legal precedent based on
individual responsibility, not responsibility for actions of third
parties. Law is based on the act of the individual, and that ought to
be the basis of all law. Yet what these lawsuits would argue is that
somehow a legitimate, legal manufacturer of a product is liable for the
way the product is used. I have oftentimes said: What about an
automobile? Certainly that is a legitimate product on the road. What
about an automobile dealer licensed in his State to sell automobiles?
If someone takes the automobile designed to give ultimate pleasure and
to move people from one point to another and they get drunk and go out
and get in their vehicle and kill someone, does the trial bar then say
that it is the automobile dealer and the automobile manufacturer who
are liable for the drunk driver who killed someone? That is what they
are trying to say and that is exactly the fundamental argument here.
That is why we think it is time this Congress deal with it in a
forthright way.
The House argued this issue over a year ago and, by a 2-to-1 vote
said: No, we are not going to let this kind of lawsuit go forward.
But they did something our bill also does. We didn't lock the
courthouse door. Some will argue this simply locks any person out of
the courthouse who might place an argument against a gun manufacturer
or licensed firearm dealer. The answer to that is absolutely not. This
will be a basis in the law by which lawyers will argue before a judge
whether these kinds of charges can legitimately be brought based on the
evidence at hand. The judge will then make the decision based on the
law as to how we proceed.
Many judges, as I have mentioned, have outright rejected these suits
already. They literally clutter up the judicial system. Antigun
activists are trying to destroy tort law by creating totally new and
expansive theories of liability to win restrictions that have been
rejected in the legislative process. What does that mean? If you can't
win it on the floor of the U.S. Senate or in the legislatures of your
States, then you get a good attorney and you go before the court and
try to argue it there and establish some kind of judicial precedent.
I have already suggested that we do not lock the courthouse door,
that we simply allow the argument to be placed. We think that, of
course, is important to all citizens, having their day in court and
their right to argue it.
Would this bill affect several high-profile cases such as the lawsuit
against a gun dealer in Takoma, WA, a store where the DC snipers, John
Muhammad and Lee Malvo, got their rifle?
Well, it won't, and here is the reason it won't. In the case of that
situation, Malvo himself said he stole the gun.
What we are also finding is that this particular gun dealer may not
have operated in the most legitimate of ways, even though the case will
not be brought.
There is a criminal investigation underway. The BATF has jerked the
license of the gun dealer. The business is now out of business, and it
is my understanding that the BATF has asked the Justice Department to
file felony charges against the gun dealer. Even within that argument,
you have the contradiction of the person who did the shooting saying: I
stole the gun. And, of course, you have a gun dealer who may have
operated illegally. Certainly that is a case in action, although what
is important is this particular bill won't affect that. If that gun
dealer in Takoma, WA, is found liable, if he acted in a criminal way,
if he mismanaged his records that he must keep in a way that distorted
what he had and guns were stolen and he never allowed that to be known,
then he is at risk.
I am not a lawyer. So I can't go to the next step of that argument,
and I will not. But what I do know and what we have insisted on in the
crafting of S. 1805 is that it be very straightforward and very clear.
Senator Daschle has incorporated within this an amendment that I have
accepted. He may bring some fine-tuning to the floor. He, too, believes
we need to deal with this issue. But he is fine-tuning to make sure
what I just said is absolutely clear in the law. There will be no
arbitrary way for someone to wiggle through the law.
Does the bill wipe out century-old tort law principles? The answer is
quite simply, no. The bill reinforces the century-old legal tenet of
personal responsibility that underlies all of our judicial system.
Individuals and businesses are responsible for the harm they cause.
Let me repeat that. Individuals and businesses are responsible for
the harm they cause--not for the action of third parties beyond their
control.
The bill protects the rights of truly injured parties. The exceptions
allow for legitimate and recognized causes of action. Manufacturers or
sellers of firearms or ammunition could still be sued if they violated
Federal or State law, manufactured defective products, violated
contracts or warranties, or knowingly sold guns to irresponsible and/or
dangerous individuals.
The law is still out there. The law still provides recourse for an
individual who would fall within those categories.
But to suggest that the actions of a third party, or the criminal act
of a third party, is the opportunity to reach through the court by the
trial bar to go after the manufacturer of a legitimate legal, law-
abiding approach or product simply should not be allowed.
Most importantly, antigun activist lawyers are the ones who are
trying to distort the law by fabricating new theories for imposing
liability only after having repeatedly failed to cast their political
agenda right here or in our State legislatures.
Just a few years ago, they admitted this when their legislative
allies introduced a bill that would have expressly created a new
Federal cause of action against a manufacturer, a dealer, or importer
who knew or reasonably should have known that its design,
manufacturing, marketing, importation, sale, or distribution practices
would likely result in gun violence.
How can anyone suggest that any action of the sale of a gun, if it is
done legally, results in violence? That is the reality of what we dealt
with.
There are a good many more issues that we will have an opportunity to
discuss in the course of this.
It looks as if Senator Kennedy is on the floor to debate the bill.
I reserve my time. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant journal clerk proceeded to call the roll.
Mr. KENNEDY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Madam President, just prior to the vote I addressed the
Senate on a tight timeframe pointing out my concerns about why we were
taking this action at this particular time. I have had the opportunity
to travel the country.
We just ended the February recess where we had a chance to get
around, as well. One of the things that has struck me over the course
of those travels is the overwhelming concern working families have over
the state of the economy. It is reflected in whether they are going to
be able to retain their job; if they have a new job, the fact it does
not pay as well as the old job; they are concerned about the cost of
health care, the cost of prescription
[[Page S1540]]
drugs; and concern over the increase of tuition. These were the issues.
One concern I have meeting at this time is we are considering special
interest legislation. We have heard a great deal both by the President
and during the course of the election. Hopefully, we can free ourselves
from special interest legislation.
Our Republican friends offer this legislation, put a cloture motion
down immediately, limit the time for any debate and discussion that
provides very special interest legislation for the gun manufacturers.
That must concern millions of Americans, certainly those who are
concerned about the state of the economy, those concerned by the
failure of the Senate to increase minimum wage over 7 years. We have 7
million Americans making $5.15 an hour who have not had a raise for 7
years and we are considering special interest legislation to protect
just a single industry, the gun manufacturing industry.
There are tens of thousands of Americans losing their unemployment
compensation every single week yet we are not debating the question of
the extension of the unemployment compensation--which is in surplus,
close to $18 billion. Senator Cantwell has an amendment to extend that
for a temporary period of time, give some relief for all of the workers
who cannot find work.
Finally, the administration admits we will not have good jobs, good
pay, good opportunities for the future. Finally, the President has
agreed with that. He differs with his Council of Economic Advisers. For
weeks we heard from the other side of the aisle: The economy is back.
And now the President agrees the economy is not back.
We do not need much Senate time on the issue of a minimum wage
increase. I would agree to an hour, half an hour on either side. Let's
send to American workers working on the lower rung of the economic
ladder a message that help is on their way. It will benefit primarily
women because they are primarily the recipients of the minimum wage. It
will go to mothers and children because many of the women have
children. It is a children's issue, a women's issue. It is a minority
issue because most of the minimum wage workers are men and women of
color. It is a civil rights issue, a children's issue, and a women's
issue. Most of all, it is a fairness issue.
People wonder why the Senate doesn't do something about increasing
the minimum wage. We have the majority of votes but our Republican
friends will not let us vote.
We hear the pious statements--look who is controlling the time--and
can't we go ahead with the Nation's business. The Nation's business is
increasing the minimum wage. No, no, we cannot deal with that this
morning. No, we are not going to deal with that. We will have special
interest legislation for just one industry--that is what the other side
says--but not for the 7 million people who would be affected.
What about those in need of unemployment compensation? These men and
women have paid into the unemployment compensation. Now they have lost
their jobs through no fault of their own through basic mismanagement of
the economy. They lose their jobs and as a result they have difficulty
paying their mortgage, putting food on the table, making sure their
children are going to be looked after. It is not because of them. They
are hard-working Americans. They have a record of employment.
Under the Cantwell amendment, we extend the unemployment
compensation. We did that in other times of our history. We did it in
the previous Democratic administration before that Democratic President
had created 2 million jobs. We still provided for those who had long-
term unemployment, that they would be able to get unemployment
compensation even after more job were created.
Now we have the loss of 3 million jobs, a sputtering return of
78,000, a total loss of 2 million jobs, and they are out there and
losing every single day whatever unemployment insurance they have. We
say, let us at least provide some temporary help.
Finally, our President has agreed we are not going to get the kind of
recovery and create the 2.6 million jobs the Council of Economic
Advisers said would occur. They finally admit that. And we are
stonewalled to not work on unemployment in the Senate. No, let's look
after one industry, not the tens and thousands and millions of hard-
working Americans who have worked hard, played by the rules and need
enough to be able to continue to pay their mortgages and look after
their families. No, no, no, we cannot do that. It might take all of an
hour. Everyone in this body knows what the issues are. We have to do
special interest legislation.
That is not even the end of it. We have the clock ticking on
unemployment. More than half of the unemployed adults have had to
postpone medical treatment, 57 percent; or cut back on spending for
food, 56 percent. One in four, 26 percent, has had to move to other
housing or move in with friends or relatives; 38 percent have lost
telephone service; 22 percent are worried they will lose their phone.
More than a third, 36 percent, have had trouble paying gas or electric
bills.
One of the principal reasons for the increase in bankruptcy is
because of this kind of challenge. Our Republican friends want
bankruptcy reform in order to expedite the pursuit of these unemployed
people who are having difficult times paying their bills and mortgage.
That is what the bankruptcy bill is all about: make the Federal
Government collection agencies for special corporate interests. That is
why they are trying to rush it through. And more and more are going
into bankruptcy.
Unemployment benefits should be extended with the economy still down
over 2 million jobs. This chart reflects where we are today, with a
total loss of 2.4 million jobs. These figures are from the Department
of Labor. The Republicans say, no, no, we have something more important
to deal with, special interest legislation.
This chart shows during the previous administration, they created 2.9
million jobs, yet they still had the extension of the unemployment
compensation for those out of work who had paid in over a long time.
The unemployment compensation fund is in surplus, $17 billion. It will
cost $7 billion and they say it will put a strain on the fund.
This is what is happening, the unemployment impact on the family.
More than three in four, or 77 percent, of the unemployed Americans say
the level of stress in their family is increased. I don't know how you
put dollars and cents on that figure. Everything is dollars and cents
around here. This is the kind of pressure and tension and anxiety these
families are under, the 2.5 million.
Two-thirds, or 65 percent, of those with children have cut back on
spending for their children. Those are working families trying to
provide for their children clothes, or perhaps a birthday present,
perhaps an outing, taking them to a baseball game in the spring, a
hockey game or a basketball game in the winter. That is not there for
any of these families.
Twenty-six percent say another family member has had to start a job
or increase their working hours. Those are basically the women, the
mothers, when they can find it. All those mothers are working twice as
hard now as they did 20 years ago.
Twenty-three percent have had to interrupt their education. Imagine
that, working families, the unemployed--2.4 million of them--and almost
a quarter of their children have had to interrupt their education
because their parents are unemployed through no fault of their own.
That is the pressure they are under. Do you think we can get an
extension of the unemployment compensation? No, no. We have to deal
with this special interest legislation.
This is the overall view of where we are in our country now. We have
13 million children who are going hungry. We have 8 million Americans
who are unemployed. We have the 8 million Americans who will lose
overtime pay under the Bush proposal. This is another interesting
issue. There is no increase in the minimum wage, there is no extension
on unemployment compensation for workers, and now we have the proposal
to eliminate overtime for 8 million Americans.
Well, you have 13 million children who are going hungry, and the
millions who are without work.
We have 7 million low-wage workers waiting 7 years for an increase in
the
[[Page S1541]]
minimum wage. There are 3 million more Americans in poverty--3 million
more Americans in poverty--since President Bush took office. Are we
addressing this issue today? Oh, no, no, no, we do not have the time to
do that. We have to rush through this special interest proposal. We do
not have time out here on the floor of the Senate to address the issues
of those who are living in poverty, or the 90,000 workers a week--
90,000 workers a week; think of that: 90,000 workers a week.
Most of us are always impressed during Sunday football games that we
watch in our stadiums when they have that incredible view from the
airplanes or balloons or whatever that shows the stadiums packed with
people. They will say: 89,000 people, 75,000 people. I guess it is
78,000 out in Lambeau Field out in Wisconsin, which I have been to
recently. People look out there and they see the mass of people out
there: 80,000, 90,000 people. Think of that number of people every
single week--every single week--losing their coverage of unemployment
compensation.
I want to mention one other area because I see good friends in the
Chamber. My friend and colleague from Iowa will be offering an
amendment on overtime. I know the Senator from the Washington, Ms.
Cantwell, will be here soon to talk about her amendment on the
unemployment compensation.
But one of the cruelest, cruelest, cruelest suggestions that has been
made by any administration in the time I have been in the Senate is to
effectively do away with overtime pay for 8 million Americans and for
those who receive training in the Armed Forces and acquire special
skills.
Now let us think about the administration's proposal and who they are
talking about. Who would be affected by the proposal the administration
is talking about? Shown on this chart is a list of the professions that
would lose the coverage for overtime pay.
The idea of a 40-hour workweek has been at the heart and soul of our
whole country's ethic. Certainly from the late 1930s it has been a part
of it. There has been a recognition that if you are going to require
people to work overtime, you are going to pay them time and a half.
That has been accepted by Republicans and Democrats alike since the end
of the 1930s. But not under this administration. They are talking about
limiting overtime.
Who will be the groups that will be affected by the elimination of
overtime? This is the group: It is going to be the policemen, it is
going to be firefighters, it is going to be the nurses, among others. I
mention policemen and firefighters and nurses because, as we know, they
are the backbone of homeland security. If we are going to have a
problem with chemical or biological warfare, it is going to be those
policemen and firefighters and nurses who are going to be the first
responders who are going to risk their lives locally in those
communities to try to contain this kind of threat. They are the ones
who are going to be on the front lines. Yet those are the very people
who this administration feels are being overpaid. Even the police force
that is here in the Senate in many functions would be affected.
There are a lot of things that are troubling in the United States of
America today we should be and must be concerned about. I mentioned the
number of children who are living in poverty and what is happening to
these families who have seen their jobs outsourced. Many of these
things we ought to be working on. But one of the great problems in our
country today is not that our policemen, firefighters, and nurses are
being overpaid. I have not heard anyone say that except the President
of the United States or the Secretary of Labor. I have not heard anyone
come up to me back in Massachusetts saying: You know something,
Senator, those policemen and firefighters and nurses are being
overpaid. Do something about it. Do something in Washington about it. I
don't hear that. There is no question that some manufacturers believe
that and feel that and have asked the administration to do something
about it. No question about that. And they did, the administration has.
I will give you an example.
But let me just conclude on this chart--police officers, nurses,
firefighters. The interesting part is that women, by and large, are
mostly in these areas and professions. This reduction in overtime
primarily affects women in our workplace.
But something that just makes this extraordinary--and has been
debated here on the floor of the Senate--this proposal was rejected by
the Senate of the United States, rejected by the House, but this
administration feels sufficiently strong about this issue that they
insisted the Harkin-Kennedy language be taken out of the bill in the
middle of the night behind closed doors--behind closed doors--at the
insistence of the major manufacturing companies in this country. And we
are going to face that. We are going to be facing that in these next
few weeks as we have the reauthorization to do it.
Now let me point out something on the rates that have been proposed.
These are the ones that have been proposed on the overtime. Listen to
this. And I am talking about the kinds of skills, cumulative skills
that will make people ineligible for overtime. I am reading right from
the Federal Register, and I will include the appropriate reference in
the Record:
However, the word ``customarily''--
That means the definition about the skills that will be excluded--
means that the exemption is also available to employees in
such professions who have substantially the same knowledge
level as the degreed employees, but who attained such
knowledge through a combination of work experience, training
in the armed forces. . . .
There it is, the Federal Register, volume 68, No. 61, Monday, March
31, administration's proposed regs. If you get the skills, training in
the Armed Forces, if you happen to be over in Iraq today or Afghanistan
and you have gone to some training programs in order to provide greater
protection for your fellow troops in fighting for our country, maybe a
member of the National Guard or Reserve, you get those kinds of
training functions, you come back here, you are out of the Guard, you
return to work, and your boss says: Hey, these new regs say you got the
training in the Armed Forces. Too bad. You are not getting your
increase.
That is what this says. A number of us raised this in the earlier
debate. The Secretary of Labor in January sent a letter to the Speaker
of the House, Dennis Hastert, saying--and I will include the letter in
the Record; it is only a page and a half long--
I want to assure that your military personnel and veterans
are not affected by these proposed rules by virtue of their
military duties or training.
But that training in the Armed Forces can make a worker an overtime-
ineligible, professional employee. This is new language. It is not in
the current regulation, and its only purpose is to take away overtime
for veterans.
Why don't they just drop the language and free us from any kind of
ambiguity? Just say, this was brought to our attention, we are going to
drop it, instead of trying to explain it away.
Continuing from the letter:
First, the Part 541 ``white collar exemptions'' do not
apply to the military. They cover only the civilian
workforce.
No one is complaining that the rule affects the military workforce.
The issue is the veteran who leaves the military to work in the
civilian workforce and would lose overtime protections. They are rather
clever. They say the white-collar exemptions don't apply to the
military. No one is suggesting it applies to the military. This letter
is an attempt to mislead. It is very clear. If the administration does
not intend to apply these overtime regulations to those who have been
in the service, they ought to just eliminate it.
I ask unanimous consent to print the letter from which I have quoted
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Secretary of Labor,
Washington, January 27, 2004.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: I write to provide you with the facts to
correct the record following last week's Senate floor debate
on the Consolidated Appropriations Act with regard to the
Department of Labor's proposed revision of the Fair Labor
Standards Act's overtime exemption regulations. I also would
like to thank you for your support and leadership on this
important issue.
The recent allegations that military personnel and veterans
will lose overtime pay,
[[Page S1542]]
because of proposed clarifications of the Fair Labor
Standards Act (FLSA) ``white-collar'' exemption regulations,
are incorrect and harmful to the morale of veterans and of
American servicemen and women. I want to assure you that
military personnel and veterans are not affected by these
proposed rules by virtue of their military duties or
training.
First, the Part 541 ``white collar exemptions'' do not
apply to the military. They cover only the civilian
workforce.
Second, nothing in the current or proposed regulation makes
any mention of veteran status. Despite claims that military
training would make veterans ineligible for overtime pay,
members of Congress should be clear that the Department of
Labor's proposed rules will not strip any veteran of overtime
eligibility.
This has been one of many criticisms intended to confuse
and frighten workers about our proposal to revise the badly
outdated regulations under the FLSA ``white collar''
exemption regulations. It is disheartening that the debate
over modernizing these regulations to meet the needs of the
21st Century workforce has largely ignored the broad
consensus that this rule needs substantial revision to
strengthen overtime protections.
The growing ambiguities caused by time and workplace
advancements have made both employers' compliance with this
rule and employees' understanding of their rights
increasingly difficult. More and more, employees must resort
to class action lawsuits to recover their overtime pay. These
workers must wait several years to have their cases
adjudicated in order to get the overtime they have already
earned. In fact, litigation over these rules drains nearly $2
billion a year from the economy, costing jobs and better pay.
I hope that this latest concern will be put to rest
immediately. Once again, I assure you that military duties
and training or veteran status have no bearing on overtime
eligibility. We hope that future debate on this important
provision is more constructive. If we can provide further
assistance in setting the record straight, we would be
pleased to do so. The Office of Management and Budget has
advised that there is no objection from the standpoint of the
Administration's program to the presentation of this report.
Sincerely,
Elaine L. Chao.
Mr. KENNEDY. The Bush overtime proposal denies overtime to veterans.
The overtime proposal explicitly states that training in the Armed
Forces could disqualify workers from the overtime protection. Many
employers, such as Boeing, acknowledge that this will affect much of
their workforce. According to Boeing's comments on the Bush proposal:
Boeing observes that many of its most skilled technical
workers received a significant portion of their knowledge and
training outside the university classroom, typically in a
branch of the military service. . . .
There it is. That is the reason. Because many manufacturers wanted
that kind of savings for the bottom line. That is why that is in there.
Because this company and others have hired people who have been in the
military, and when they see they have these kinds of skills which are
necessary for our Armed Forces, they are being penalized for it.
I would be interested in seeing the discussion between the Secretary
of Defense and the Secretary of Labor in putting these out. So many of
these training programs and education programs are programs that
inspire young people to go in the Armed Forces. They are men and women
of limited means but have ability and capabilities and understand that
they cannot achieve their fullest potential unless they take these
training programs or build the kind of credits in order to get advanced
degrees.
They ought to be on warning now that if they go ahead and do that,
they may very well be knocked out of any kind of overtime protection.
That is what this basically says. It is a cruel hoax to so many who are
in the National Guard now and are going to come back and be in the
civilian workforce.
I want to read from a letter:
My name is Randy Fleming. I live in Haysville, Kansas--
outside of Wichita--and I work as an Engineering Technician
in Boeing's Metrology lab.
I'm also proud to say that I'm a military veteran. I served
in the U.S. Air Force from August 1973 until February 1979.
I've worked for Boeing for 23 years. During that time I've
been able to build a good, solid life for my family and I've
raised a son who now has a good career and children of his
own. There are two things that helped make that possible.
First, the training I received in the Air Force made me
qualified for a good civilian job. That was one of the main
attractions when I enlisted as a young man back in Iowa. I
think it's still one of the main reasons young people today
decide to enlist. Military training opens up better job
opportunities--and if you don't believe me, just look at the
recruiting ads on TV.
The second thing is overtime pay. That's how I was able to
give my son the college education that has opened doors for
him. Some years, when the company was busy and I had those
college bills to pay, overtime pay was probably 10% or more
of my income. My daughter is next. Danielle is only 8, but
we'll be counting on my overtime to help her get her college
degree, too, when that time comes. For my family overtime pay
has made all the difference.
That's where I'm coming from. Why did I come to Washington?
I came to talk about an issue that is very important back
home and to me personally as a working man, a family man, and
a veteran. The issue is overtime rights.
The changes that this administration is trying to make in
the overtime regulations would break the government's bargain
with the men and women in the military and would close down
opportunities that working vets and their families thought
they could count on.
When I signed up back in 1973, the Air Force and I made a
deal that I thought was fair. They got a chunk of my time and
I got training to help me build the rest of my life. There
was no part of that deal that said I would have to give up my
right to overtime pay. You've heard of the marriage penalty?
Well I think that what these new rules do is to create a
military penalty. If you got your training in the military,
no matter what your white collar profession is, your employer
can make you work as many hours as they want and not pay you
a dime extra.
If that's not a bait and switch, I don't know what is.
You can't make the case any better--no matter how long we speak, how
many charts we have--you can't make the case any better than is being
made by this former serviceman.
And I don't have any doubt that employers will take
advantage of this new opportunity to cut our overtime pay.
They'll tell us they have to in order to compete. They'll say
if they can't take our overtime pay, they'll have to
eliminate our jobs.
It won't be just the bad employers either--because these
rules will make it very hard for companies to do the right
thing. If they can get as many overtime hours as they want
for free instead of paying us time-and-a-half, they'll say
they owe it to the stockholders. And the veterans and other
working people will be stuck with less time, less money, and
a broken deal.
I'm luckier than some other veterans because I have a union
contract that will protect my rights for a while anyway. But
we know the pressure will be on, because my employer is one
that pushed for these new rules and they've been trying hard
to get rid of our union.
And for all of those who want to let these military penalty
rules go through, I have a deal I'd like to propose. If you
think it's okay for the government to renege on its deals, I
think it should be your job to tell our military men and
women in Iraq that when they come home, their service of
their country will be used as a way to cut their overtime
pay.
Madam President, is there anyone in this body who doesn't believe
that eliminating that possibility isn't of greater urgency than the
special interest provision presently before us in the Senate?
Why don't we clear this up once and for all? Why don't we take an
hour or so and debate the Harkin-Kennedy amendment on this issue? Why
don't we vote on that amendment and send it over to the House? Let's
send a message to families, nurses, police officers, and firefighters.
Let's send a message to those who have gotten skills in the National
Guard. Let's send a message that we stand with them, that we believe
their service is of importance to us in the Senate. Let's put aside the
speeches for a little while that will be made by political leaders all
over the country about how much we appreciate the service of men and
women and do something for them in the Senate now? Now.
There are a number of other issues that we could be talking about in
terms of the state of our economy. I have taken a short period of time.
I see others in the Chamber who wish to address the Senate. It does
seem to me that the matters I have mentioned, no matter how you come
out on them, are of importance to working families in this country.
And, the working families in this country are faced with economic
challenges.
It is not just the questions about outsourcing, although that is
enormously important and a matter of great and expanding concern. It is
what is happening with the failed increase in the minimum wage, the
failure of providing unemployment compensation, the failure to do the
overtime provisions, the failure to deal with the high
[[Page S1543]]
cost of prescription drugs. There is another amendment we could do to
permit the Secretary of Health and Human Services to actually negotiate
and do something about lowering prescription drugs for people. We could
do that pretty quickly.
People are concerned about the high cost of tuition in colleges, and
there are things we can do on that.
I say these are the matters that are of principal concern to working
families across this country. We have seen the loss of manufacturing
jobs, the concerns that working families have. They want some action.
They don't want us to yield to special interest provisions. Not only do
they not want us to yield to them, but those who have been victims of
violence and violent gun activity don't want us to throw their cases
away, and leading law enforcement officers of this country understand
that we should not yield to the special interests as well.
I look forward to the opportunity for some discussion and some action
on these issues prior to the time we have a vote. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Idaho.
Mr. CRAIG. Mr. President, the Senator from California is now in the
Chamber to discuss this bill. We are not on the bill yet. I hope we can
get there.
The Senator from Massachusetts has taken ample time to discuss the
bill, I guess, and other issues. I would like to talk about jobs. I
think the Senator is right to talk about jobs, but what he didn't talk
about were the jobs in Westfield, MA, at Savage Firearms. They used to
be a total of 500 high-paying union jobs strong. They have spent over
half a million dollars fighting the lawsuits that we would like to
prohibit. Now there they are 160 strong. They have lost jobs in
Massachusetts. I want the Senator from Massachusetts to stand with me
and protect the hard-working men and women at Savage Firearms.
The bill is about jobs, I say to the Senator from Massachusetts. That
is what this issue is all about.
Why is our bill endorsed by the United Steelworkers and by the United
Auto Workers? The reason it is endorsed is because these high-paying
jobs at law-abiding gun manufacturing locations are being eliminated by
the glut of a thousand lawsuits--in this case over 30--where they have
had to go to court, spend a lot of money, and the court threw it out
because it was frivolous, but the company was less viable because these
are really not big companies.
If we took all of the firearms manufacturers in the United States
today and brought them all into one company, they would be smaller than
a Fortune 500 company.
Let me read a great quote from the Colt manufacturers, Colt firearms.
They are located in Connecticut:
We today have 383 members from the Colt workforce. By
comparison, about 5 years ago, we had over 600 Colt workers
who were members of our local. Our members built the finest
small arms in the world, including the M-4 carbine, the M-16
rifle, and the M-203 grenade launcher.
I believe those are the firearms of our military.
Many of them were shipped to the U.S. military and lawfully
provided for the principles of democracy.
That company is at risk today unless we pass the kind of legislation
about which we are talking.
I do believe the working men and women of this country are a special
interest. I think the tens of millions of law-abiding gun owners in our
country are a special interest. So it is really a matter of how you
define ``special interest.'' If it has been said once on the floor, it
has been said 15 times in the last 45 minutes: special interest,
special interest, special interest.
Let's talk about the working men and women of the firearms industry.
Let's talk about the law-abiding gun owners of America as a special
interest of us, this country, all Americans. You are darn right we
debate special interests on the floor of the Senate, but it really is a
matter of definition.
Time limit? We are not proposing a time limit. Senators can speak for
up to an hour on this issue now, and if they want to, they have 30
hours postcloture before we get to the bill. I hope we don't spend all
of that time doing that. I would like to get to the bill. I know the
Senator from California has talked about an amendment. I think she
would probably want to offer that amendment and have it amply debated.
We do not want to limit time, but we do want to talk about special
interests: law-abiding gun owners in our country, working men and women
of the law-abiding gun manufacturers, the people who work at legal gun
shops all over this country that by law are licensed and that by law
carry out the law. That is what we are talking about today. Call them a
special interest, if you will. I do. My job is to try, under the law,
to protect them from the kinds of frivolous lawsuits the trial bar has
decided to bring in court after court because they couldn't gain
legislation on the floor to change the character of our country. That
is the issue at hand.
I am glad the Senator from Massachusetts has come to talk about
special interests. I wish he would understand that the hard-working men
and women in Westfield, MA, for Savage Firearms are, in fact, a special
interest--a special interest of mine and, I am quite confident, a
special interest of his.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I rise today to speak on the bill that
is before this body, and I wish to begin by saying that I have great
respect and have enjoyed working with the Senator from Idaho on a
number of issues, including Healthy Forests. But I also must say we
profoundly disagree when it comes to guns. So it is probably no
surprise to him that I rise to strenuously object to what I see
happening here.
I think we have to recognize that guns in America are responsible for
the deaths of 30,000 Americans a year. The question comes whether we
should be giving the gun industry sweeping and unprecedented protection
from the type of lawsuits that are available to every other victim
involving every other industry in America.
The simple fact is that over the years, the gun industry has managed
to lessen, avoid, or prevent any prudent regulation. For example, they
are exempt from Consumer Product Safety Commission laws, thanks to the
National Rifle Association's efforts over the years to keep it that
way.
Secondly, the Federal Government cannot do much to police bad gun
dealers--and we know there are some--or to enforce gun laws because the
hands of the ATF, the Bureau of Alcohol, Tobacco and Firearms, are tied
by limits to their authorities which have been put in place by the
National Rifle Association. They can only do a once-a-year audit, for
example. They only have limited options.
The number of ATF agents is kept so low they cannot possibly inspect
all of the gun dealerships in this country. So today only the court
system offers victims of negligent manufacturers, of which there are
some, and dealers, of which there are some, the ability to receive
compensation for their injuries. Only the court system provides a means
for changing these negligent practices through the threat of legal
liability.
I hope to show that the threat of legal liability has, in fact,
resulted in more responsible manufacturing and selling principles by
this industry. If we remove this one remaining avenue toward enforcing
responsibility, victims will have no recourse. Gun owners and gun
victims alike will be left virtually powerless against an industry that
is already immune from so many other consumer protections. So we find
ourselves today on the cusp of yet another NRA victory.
Let me be clear, this is not a victory for NRA members, most of whom
are law-abiding gun owners who might some day benefit from the ability
to sue a manufacturer that sold them a defective or dangerous gun. No,
this will be a victory for those who have turned their organization
into a political powerhouse, unconcerned with the rights of the
majority of Americans who want prudent controls over firearms.
I do not support meritless lawsuits against the gun industry. I do
not think anybody does. It is my belief gun manufacturers and dealers,
though, should be held accountable for irresponsible marketing and
distribution practices, just as anyone else would be,
[[Page S1544]]
particularly when these practices may cause guns to fall into the hands
of criminals, juveniles, or mentally ill people.
This legislation has one simple purpose: to prevent lawsuits from
those harmed by gun violence. These include: suits filed by cities and
counties which face rising law enforcement and medical costs due to
increased gun crimes, crimes often committed using guns that flood the
illegal market with the full knowledge of the distributors that the
legal market could not possibly be absorbing so many of these weapons;
suits filed by organizations on behalf of their members; and victims of
violent crimes and their families who are injured or killed as a result
of gun violence or defective guns that malfunction due to negligent
design or manufacture.
This issue is not an abstract one. When people vote for this gun
liability absolution today, they are going to be hurting a lot of
people all across this land, and I want to point out a few because this
bill affects the lives of real gun victims, victims not simply of
criminal misuse by a well-designed firearm, but victims of guns that
have been designed poorly or marketed in ways which quite frankly
should be illegal.
One of the cases that could be affected by this legislation, though
this would ultimately be decided by a judge, is that of Brandon
Maxfield, a 7-year-old from my State, Oakland, CA.
On April 6, 1994, Brandon was shot in the chin by his babysitter. The
shooting left him a quadriplegic and he will never be able to walk
again.
The babysitter, a friend of the family, was simply trying to remove a
bullet from the chamber of a weapon that was found in the house, a .38
caliber Saturday night special, when the gun accidentally fired.
Here is the key: The weapon was clearly designed in an inherently
dangerous way. It can only be unloaded when the safety is in the off
position and can therefore fire.
Now common sense might say when you want to unload a gun you would
first put the safety on. It defies common sense, on the other hand, to
design a firearm so it can only be unloaded in the firing position.
After all, one might expect the gun to accidentally fire as someone
like Brandon's babysitter struggles to unload it.
Finally last year, after 9 years of litigation, a jury found the
manufacturer and distributor of Saturday night specials partially
liable for Brandon's injuries. This was a tremendous victory for
Brandon and his family and a victory for all people who want to see
guns made safer. This bill, however, would take away Brandon's right to
sue, and I will explain why a bit later.
The bottom line, though, is Brandon's case was not frivolous. The
jury did not think it was. Without the threat of lawsuits, companies
like the one that made the gun in this case will have little incentive
to change the design, but this legislation would remove the threat of
that suit, depriving Brandon of compensation but, even worse, depriving
the public of this key avenue to improving the habits of gun
manufacturers.
I will quickly go through what the bill does. I know others have and
will continue to speak to this, but I think it bears repeating because
I do not think everybody supporting this bill really understands its
full ramifications.
Essentially, this bill prohibits any civil liability lawsuit from
being filed against the gun industry for damages resulting from the
criminal or unlawful misuse of a gun, with a number of narrow
exceptions.
In doing so, the bill effectively rewrites traditional principles of
liability law, which generally hold that persons and companies may be
liable for their negligence even if others are liable as well. This
bill would essentially give the gun industry blanket immunity from
civil liability cases, an immunity no other industry in America has
today.
The bill does allow certain cases to move forward, as its supporters
have pointed out, but these cases can proceed only on very narrow
circumstances. Countless experts have now said this bill would stop
virtually all of the suits against gun dealers and manufacturers filed
to date, many of which are vital to changing industry practice and
compensating victims who have been horribly injured through the clear
negligence or even borderline criminal conduct of some gun dealers and
manufacturers.
The exemptions in the bill, even the new bill, set a very high burden
of proof of negligence for plaintiffs, allow for a very slight number
of cases against gun manufacturers to be filed, and only protect a
limited class of cases against sellers.
Under this bill, cases could only be filed in the following narrow
circumstances. First, if a gun dealer transfers a firearm knowing the
gun will be used to commit a violent or drug trafficking crime. In
other words, a suit could go forward if a dealer gives a gun to someone
who comes in and says, ``Give me a gun, I need to go kill someone.''
This provision only applies in the highly unlikely event a gun buyer
clearly indicates his or her criminal intentions to the gun seller. Fat
chance of that happening.
I am not a gun dealer, but I imagine most criminals do not make a
habit of announcing their criminal intentions to gun dealers. So this
exception to the immunity created by the bill is really no exception at
all. It will apply to almost no cases.
Secondly, there is an exemption in the bill which applies if a dealer
sells a gun to someone knowing the buyer will or is likely to misuse
the firearm and that the individual buyer does indeed misuse it to
commit a criminal offense. This provision is slightly more likely than
the first exemption, but it still requires a very high burden of proof.
Instead of common negligence, which might only require that the dealer
did not take enough care in making sure that criminals did not obtain
guns to commit crimes, what this provision requires is that the dealer
actually know that the buyer is likely to use the gun to do harm.
How can this be proven? Mr. President, you are an attorney. How can
this be proven? The difficulty in proving such a claim might all but
bar this exemption from ever coming into play. It would have no effect
on such practices as straw purchases and large volume sales--which,
incidentally, are the two most common sources of crime guns--because in
a straw purchase, the dealer could always claim that he or she had no
idea what the buyer would be doing with the guns.
Third, the bill would allow suits to proceed where a defendant has
violated a law or regulation in the sale of the specific gun that
caused the damage or injury. This sets a very high burden of proof for
negligence. Again, this would not affect dealers who conduct straw
purchases or other dangerous distributing conduct because such conduct
does not specifically violate any laws or regulations, although I must
say it should.
Because there are so few real laws or regulations governing how guns
are sold or manufactured, this provision, too, is relatively
insignificant in terms of how it affects the underlying thrust of the
bill.
Now I should point out that this provision is different than the
provision in the original bill as passed by the House. Under the
original bill, only knowing and willful violations of the law could be
subject to suit, which is an even higher burden to reach. But even
under this revised legislation, this standard is far higher than
current law.
The simple truth is, negligence does not involve a violation of the
law. Requiring a plaintiff to prove that a gun store, for example, was
not only negligent in letting a criminal obtain a dozen guns, but the
gun store actually violated a law in doing so, of which there are few,
makes it very difficult to succeed.
So with any other business or product, in every other industry, a
seller or manufacturer can be liable if it is negligent--but not here.
Since money, rather than life or liberty is at stake in a civil case,
the standard of proof is lower. There need not be a criminal violation
to recover damages, and in the overwhelming majority of civil cases
there is no criminal violation. So if, for instance, a crib
manufacturer designs and markets a crib that results in the death of
children who use the crib, we allow that manufacturer to be sued as one
means of deterring such conduct and of compensating the families of the
children who died from the defectively designed crib. The manufacturer
need
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not have committed any crime. It is the negligence in making a
defective and dangerous crib that is enough. Here, contrary to general
negligence law covering almost every other product, this bill allows
negligent gun dealers and manufacturers to get off the hook unless they
violated a criminal law. That is just dreadful. You are creating a
special area of law for gun manufacturers and saying unless they
violate a law they can manufacture a defective weapon.
The judge in Washington State presiding over the case brought against
the DC area snipers has twice ruled that the dealer, Bull's Eye
Shooters Supply, and the manufacturer, Bushmaster Firearms, may be
liable in negligence for enabling the snipers to obtain their gun. But
even with the new modifications, the sniper victims' case could very
well be thrown out of court under this bill. So know what you are
doing, Members who vote for it. The sniper victims' case could well be
thrown out of court by this bill because there is no evidence that
either the negligent dealer or manufacturer violated a criminal law.
Indeed, both Lloyd Cutler and David Boies, each prominent attorneys,
recently stated unequivocally that the sniper case would have to be
dismissed under this bill, and countless professors have written a
letter agreeing with this interpretation of the law.
This is the most notorious sniper case in America. You have
negligence on the part of the gun dealer who sold that gun, didn't
report it until way late, allowed the snipers to get that gun, and now
we are passing a law to prevent the victims from suing under civil
liability. Nowhere else in the law does this exist.
In another case, a Massachusetts court has ruled that gun
manufacturer Kahr Arms may be liable for negligently hiring drug-
addicted criminals and enabling them to stroll out the plant door with
unmarked guns to be sold to criminals. But with the proposed changes,
the case against Kahr Arms would be dismissed. Its conduct, though
outrageous, violated no law. Negligent? Yes. Criminal? No.
Members, know what you are doing when you vote for this bill.
The fourth exemption in the bill is when a dealer somehow violates a
sales contract. An example of this would be the dealer failing to
provide the gun for which the purchaser paid. This, too, is clearly a
limited exception. Victims of defectively designed or negligently sold
guns would not be allowed to file cases under this provision.
Furthermore, the claims of gun purchasers would be limited to what they
were entitled to under the scope of the contract or warranty.
The fifth exemption in the original bill allowed suits to go forward
if the gun manufacturer has caused ``physical injuries or property
damage resulting directly from a defect in design or manufacture of a
product when used as intended.'' This provision altered generally
accepted principles of products liability law which essentially state
that a manufacturer must implement feasible safety features that would
prevent injury caused by foreseeable use or misuse, even if that use is
not ``intended.'' For instance, it might not be intended for a child to
try to eat a small toy, but it is clearly foreseeable.
This new modified gun immunity legislation does add language allowing
suits to go forward as long as the activity was ``reasonably
foreseeable'' by the manufacturer or dealer, which appears to match
current law. However, the devil is in the details because the bill then
takes away any benefit that language might have by stating that the
exemption will not apply to lawsuits that also involve criminal acts by
the defendant.
The best example of how this provision would affect the case is the
Brandon Maxfield babysitter shooting I mentioned earlier, where a child
was accidentally shot by a babysitter because the chamber of the gun
could not be checked without clicking the safety to ``off.'' In that
case, the gun fired while the babysitter tried to check the chamber.
The problem is the bill prohibits suits involving even foreseeable
accidents, if there are criminal charges. In the babysitter case, the
babysitter could easily be, and indeed was, charged with manslaughter--
which is a crime. Thus, even this suit would still be barred by this
revised bill.
Contrary to current law which allows judges and juries to apportion
blame and damages, this bill would bar any damages against a
manufacturer if another party was liable due to a criminal act.
Why should firearms get special treatment? In our society, we hold
manufacturers liable for the damage their products cause. This is the
case with automobiles. This is the case with cribs. It is the case with
children's toys, and it should be the case with guns as well. Lawsuits
filed against the gun industry provide a way for those harmed to seek
justice from the damages and destruction caused by firearms. Just as
important, they create incentives to reform the practices proven to be
dangerous.
After all, this is the most dangerous consumer item found in a home.
According to statistics, there is a gun in 43 percent of the
households with children in America. There is a loaded gun in 1 of 10
households with children, and a gun that is left unlocked or improperly
stored in 1 of every 8 family homes.
More children and adult family members are killed each year by having
a loaded gun at home than from incidents with criminal intruders. In
fact, a gun in the home is 22 times more likely to lead to an
accidental injury or death to family members than used against a
criminal intruder. These are senseless actions that can be prevented by
simply designing guns with technologically and economically feasible
safety devices.
Recent cases have produced evidence from law enforcement
investigations, as well as industry insiders, that the gun industry may
be ignoring numerous patented safety devices for guns and intentionally
flooding certain markets with guns knowingly, and also profiting from
the fact that the excess weapons would make their way into the hands of
criminals. We have seen gun dealers selling guns when they know these
guns are being purchased to immediately resell to criminals--often to
criminals who wait right outside the door or even inside the very store
while the guns are being bought by someone who can pass a background
check.
Lawsuits filed against the gun industry provide a way for victims and
municipalities to seek justice from the damages and destruction caused
by firearms.
Additionally, lawsuits provide this largely unregulated industry with
incentives to reform irresponsible manufacturing and distributing
practices proven to be dangerous.
According to Tom Gresham, a writer for the magazine Guns & Ammo,
lawsuits have, in fact, proven effective in encouraging manufacturers
to design their guns with proper safety devices. Even though guns are
not required to be made with safety features, Gresham writes in the
June 2002 edition of the magazine that lawsuits have spurred
manufacturers to include them to avoid liability in future actions.
Don't we want this to take proven steps to improve the safety of
their weapons?
Gresham claims, ``No matter what you think of them, you will find
built-in locks on more and more guns in the future. I predict that in
ten years, no firearm will be made without one.''
What does this bill do to that? It encourages the gun companies to do
exactly the opposite--to not put better safety components on their
weapons.
When this bill was introduced, its supporters spoke about the need to
protect the industry from frivolous lawsuits and the need to protect
the industry from the potential loss of jobs brought on by future
lawsuits. These claims are unfounded. This bill is simply the latest
attempt of the gun lobby to evade industry accountability. The suits
against the gun industry come in varying forms, but they all have one
goal in common--forcing the firearm industry to become more
responsible.
In addition to ongoing cases filed by individual victims, there have
been a handful of cases filed by private associations, such as the
National Association for the Advancement of Colored People, and the
National Spinal Cord Injury Association. These cases have been filed on
behalf of groups of individuals who claim to have been harmed by the
gun industry's bad behavior.
And there are government cases--at least 24 cases--that have been
filed
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against the gun industry on behalf of nearly three dozen cities and
counties and one State attorney general claiming that the reckless
conduct of the gun industry has threatened public safety and hindered
the ability of municipalities to provide for the health and welfare of
their citizens. A majority of these municipalities' lawsuits have
successfully defeated industry attempts to dismiss their cases. This
bill would kill that.
Last year, Dennis Herrera, City Attorney of San Francisco, said that,
``Cases being pursued by my office and some 30 other jurisdictions
nationwide have already achieved important milestones in exposing gun
industry recklessness, with mounting evidence and an increasing number
of high-level whistle blowers revealing gross misconduct by
manufacturers and dealers . . . I'm convinced that the City and its
fellow plaintiffs have a compelling case against the gun industry.''
This legislation would prevent them from going ahead.
Let me describe a few representative cases that also could have been
stopped by this bill.
The case of Cincinnati v. Beretta is one example of a legitimate and
successful case filed against the gun industry. In this case, officials
from the city of Cincinnati, OH, contended that the gun industry's
reckless marketing and distribution of guns enabled them to wind up in
the hands of criminals and children leading to murders, shootings, and
suicides that imperil public safety. The city also argued that gun
manufacturers were negligent in failing to design safer weapons and
owed the city compensation for the cost of emergency responses to acts
of gun violence.
The Supreme Court of Ohio agreed and ruled the issue deserved
exploration at trial. The court found that under generally applicable
principles of law, it is the duty of gun manufacturers to use
reasonable care in their design and sales of guns, and they may be
liable for damages arising from their negligent conduct and failure to
equip their guns with practical safety features.
This is no different an analysis than would be used against the
manufacturer of any product used by a consumer--whether a child's crib,
a toothbrush, a chainsaw, or an automobile.
The Court also found that a manufacturer could be held liable for
their role in creating and facilitating the criminal gun market through
their failure to use reasonable care in their sale and distribution of
guns. The Court specifically rejected the argument that those who
irresponsibly sell guns cannot be liable if the damage foreseeably
resulting from their negligence was ultimately caused by a criminal
act.
Furthermore, the Court noted the socially beneficial role of lawsuits
against gun sellers and manufacturers can play:
If as a result of both private and municipal lawsuits,
firearms are designed to be safer and new marketing practices
make it more difficult for criminals to obtain guns, some
firearm-related deaths and injuries may be prevented . . .
Such litigation may have an important role to play,
contemplating other interventions available to cities and
states.
This case could well be stopped in its tracks if this bill passes.
In another case, Hurst v. Glock, the New Jersey Court of Appeals also
ruled in favor of the plaintiff. This products liability case centers
on an incident in which a teenage boy, Tyrone Hurst, was seriously
injured when his friend picked up a gun she thought was unloaded and
fired at Tyrone. The Hurst family argued that the shooting could have
been prevented had the gun manufacturer included a safety feature known
as a magazine disconnect safety.
Again, the Court agreed and found that the gun manufacturer could be
liable for injuries caused by the failure to include a safety feature
on the firearm. Wiped out.
In 1994, Griffin and Lyn Dix from Berkeley, CA, lost their youngest
son Kenzo after he was accidentally shot to death at the age of 15 by
his best friend, Michael. Michael was showing his father's gun to Kenzo
and, believing the gun to be unloaded, pointed it at his friend and
fired. Michael did not realize there was a bullet hidden in the chamber
of the gun.
In an interview after the incident, Michael described the situation
after turning the gun on his friend:
I look down and I don't even aim. I heard a pop, my eyes
opened up and I was shocked. I look and saw Kenzo hunched
over, kind of moaning--a creepy moan you don't want to hear.
It just stays with you.
The bullet went straight into Kenzo's chest. Tragically, he was
pronounced dead within the hour.
Kenzo's parents sued Beretta, the manufacturer of the gun that killed
their son. They argued that the gun lacked adequate safety features and
warnings and that is why it appeared unloaded despite the fact that a
bullet lay in the chamber.
The case sent a necessary wake-up call through the industry that they
could rightly be held accountable in future wrongful-death cases. Faced
with the threat of litigation, a number of manufacturers have changed
their design standards and designs to include proper and practical
safety features. That is a positive benefit all across this Nation.
I ask my colleagues, how can we justify giving blanket immunity to
the gun industry that manufactures and distributes products that kill
30,000 Americans a year, yet fail to provide the proper and practical
safety features in their products?
Under the principles of common law, all individuals and industries
have a duty to act responsibly. How can we give total legal immunity to
an industry that time and time again has failed to act in such a
manner?
This is not just about manufacturers and the design of products. It
is also about gun dealers and distributors that know their guns are
sold to be used in crime. This very bill was scheduled to come to the
Senate for consideration during the 107th session of Congress. It was
withheld in light of the sniper attacks that terrorized the Washington,
DC area. I guess enough time has now passed that the bill's supporters
think we will have forgotten those sniper victims. But we have not. We
have already heard today that the victims of those attacks have filed
one of the cases currently pending. The suit results from alleged
negligent conduct of a gun dealer that has been accuse of some
incredibly negligent conduct.
Mildred Denise Muhammad filed three restraining orders against her
husband, John Allen Muhammad, one of the convicted snipers. Those
restraining orders should have prohibited John Allen Muhammad from
owning a gun.
However, nothing stopped him from obtaining the handgun he allegedly
used to commit murder in Alabama, nor the Bushmaster XM-15 assault
rifle used in the sniper attacks, in all likelihood because the dealer
that had the Bushmaster assault rifle was either negligent or willful
in allowing it to fall into Muhammad's hands.
The assault rifle used in the sniper attacks was one of 238 guns that
have been reported missing from the Bull's Eye Shooters Supply store in
Tacoma, WA. We learned about this dealer's dangerous inability to keep
track of his guns not from the store itself but, rather, from audits
performed by the ATF. The store had no record of purchase for the
assault rifle used in the attacks and failed to report it stolen until
after the ATF recovered the weapon from the snipers and traced it back
to the store. Here is a store that has 238 guns that are missing and
does not report them. That is class A evidence.
Even after this blatant display of negligent conduct, the rifles
manufacturer announced that the gun store remained a ``good customer''
and it would continue to sell guns to the store. The manufacturers
showed clear disregard for the victims, their families, and public
safety.
And the store itself, in either failing to adequately account for its
guns, or even worse, illegally selling the gun to a prohibited person,
may well also be liable for its conduct. The alleged snipers were
clearly aided and abetted by the irresponsible conduct of the owners of
this gun shop that managed to simply lose hundreds of deadly weapons
and the manufacturer that supplied serious combat weapons to a dealer
with no questions asked.
If they are not liable, they will be found not liable by a jury; but
if they are liable, should we not allow a court to decide? How can we,
with a clear conscience, pass a bill that would deny the right of these
victims of gun violence their day in court?
As I mentioned earlier, this case would almost certainly be dismissed
if
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the bill now before the Senate becomes law. With no liability threat,
few ATF enforcement tools, and a blanket exemption from consumer laws,
Bull's Eye will have no incentive to clean up its act.
Such disregard for public safety is identified in another case filed
against the gun industry, Lemongello and McGuire v. Will's Jewelry &
Loan. In this case, the argument that those who irresponsibly sell guns
cannot be held liable if the guns were later used in a criminal act was
again rejected, this time by West Virginia Circuit Court Judge Irene
Berger.
As the Presiding Officer knows, a felon, fugitive, or stalker cannot
legally buy guns. So sometimes the individuals will find someone also
to help them evade the current gun laws and get their hands on a gun.
A straw purchase occurs when a buyer purchases guns on behalf of
criminals or other individuals who are prohibited from purchasing guns.
Federal law enforcement agencies estimate 46 percent of crime guns
nationwide come from this type of purchase. I repeat, 46 percent of the
guns used in crimes in America come from these straw purchases with gun
dealers.
The National Shooting Sports Federation is the gun industry's leading
trade association. It is fully aware of the reality that guns from
straw purchases are often ultimately found in the hands of criminals.
The Foundation also recognizes that these dangerous purchases can
easily be prevented so long as dealers act responsibly.
To promote this policy, the Foundation provides training for gun
dealers ``to help prevent and deter the illegal `strawman' purchase of
firearms.'' In the brochure of its training campaign entitled ``Don't
Lie for the Other Guy,'' the Foundation claims that it is the
responsibility of the gun dealer to prevent these purchases from taking
place by simply prohibiting any sale they suspect to be a straw
purchase. Despite these warnings, a straw purchase is exactly what took
place at Will's Jewelry & Loan, a West Virginia pawnshop, in the fall
of 2000. James Grey, a felon and gun trafficker, came into the store
accompanied by Tammi Lea Songer, a woman who had a clean background and
thousands of dollars in cash. James Grey methodically selected 12 guns
he wanted and Songer bought them, all in a single purchase, no
questions asked.
The shop's employees were suspicious of Grey and Songer's actions.
They contacted the ATF to notify them of the purchase.
The problem is that the call to the ATF was made after the guns were
purchased, after the profits were made by the dealer and Sturm, Ruger.
The warning signs were so obvious, yet proper actions were not taken
until it was too late.
Just months later, one of these guns, a 9 mm semiautomatic Ruger
handgun, was used by a convicted felon to shoot and seriously injure
two New Jersey police officers in the line of duty.
Officers Dave Lemongello and Ken McGuire were shot with that handgun
while responding to the scene of an attempted robbery. The shoot-out
put an end to the careers of both men. The injuries they received were
so debilitating they could no longer serve.
Those officers filed a lawsuit against the dealer and Sturm, Ruger,
who both profited from their irresponsible conduct. Their claims were
recently validated, and the West Virginia Circuit Court found the gun
dealer could be liable under West Virginia law of negligence and public
nuisance for failing to use reasonable care in its sales. As a result,
a jury could find the subsequent criminal shooting was a foreseeable
result caused by that negligent act.
The bill we are considering today would turn a blind eye to the
reckless conduct shown by those in the industry that enabled this
tragic incident to have taken place.
Last year, Officer Lemongello spoke before the House Judiciary
Committee to protest this bill. In his testimony he stated:
The next disturbing news I heard was that some people in
Congress wanted to take away my right to present my case in
court and wanted to give that irresponsible dealer special
protection from the legal rules that apply to all other
businesses in this country. Other businesses have to use
reasonable care and may be liable for the consequences if
they don't. Those who sell lethal weapons that are highly
valued by criminals should have at least the same duty to use
reasonable care as businesses who sell BB guns or any other
product . . . Gun sellers have to be more responsible when
they sell guns to prevent guns from getting into criminals'
hands before they do their damage. What happened to me and
Ken is an example of what happens when gun sellers are
irresponsible.
As if the valuable lessons learned from the cases I have detailed
were not convincing enough to prove that criminals are able to get guns
on the black market due to the complicity of gun manufacturers and
dealers, simply listen to the words of gun industry insider Robert
Ricker.
Former Executive Director of the American Sport Shooting Council and
former Assistant General Counsel for the NRA, Robert Ricker has
testified in support of lawsuits against the gun industry--a brave man.
In a recent affidavit, Ricker claimed:
Instead of requiring dealers to be proactive and properly
trained in an effort to stop questionable sales, it has been
common practice of gun manufacturers and distributors to
adopt a ``see-no-evil, speak-no-evil'' approach. This type of
policy encourages a culture of evasion of firearms laws and
regulations.
In the same affidavit, Ricker also claimed lawsuits provide a
valuable tool for motivating the industry to reform and act
responsibly. He stated:
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 and have
sought to silence others within the industry who have
advocated reform.
That says it all. They will not move to do the right thing, and they
will silence others. That is according to one of their own insiders,
and we go along with it and are going to give them civil liability
protection. I cannot believe it.
Again, I do not support meritless lawsuits against any industry,
including the gun industry. But the fact of the matter is, this bill's
goal of granting the gun industry blanket immunity would cause much
greater harm to the American public than it could ever possibly prevent
for an already under-regulated industry.
The right way for the gun industry to protect itself from liability
for irresponsible conduct is simply to act responsibly, by
manufacturing guns with safety devices and ensuring their products are
going to reputable, law-abiding dealers.
Is that asking too much? Is it asking too much that dealers enforce
the rules on the books and prohibit straw purchases? Straw purchases,
remember, are responsible for the sale of 43 percent of the guns in
this Nation that are used in crimes.
I think dealers should enforce the rules on the books and prohibit
these purchases. If litigation is the only way to keep the gun industry
in check, we should not give the gun industry total immunity. As I have
pointed out, everything else is stretched thin.
This is an industry that is less accountable under law than any other
in America. The only avenue of accountability left is the courtroom,
and this bill attempts to slam the courtroom door in the face of those
who would hold the industry responsible for its actions.
We ought to hold this industry accountable for product standards so
that in the event a juvenile ends up with a gun, common sense safety
devices will prevent senseless accidents.
We ought to hold this industry responsible for taking the proper
precautions to ensure law-abiding citizens are able to obtain the guns
they choose while criminals and other prohibited individuals do not.
Mr. President, I beg, I plead with this body. It is incomprehensible
to me that the Senate of the United States is going to provide this
kind of liability protection to an industry that does what I just laid
out in these remarks. It is incomprehensible.
I have watched the NRA win time after time--the latest being the
Federal database of gun sales being obliterated after 24 hours. If this
bill passes, there will be no stay on the gun industry for responsible
conduct because they can get away without doing it.
I implore my colleagues, please take a second look at this bill. Talk
to attorneys like Lloyd Cutler and David Boies. Ask them what this bill
will do to merit cases.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I would like to discuss this matter on
the level I think it should be discussed;
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and that is, is it good public policy, is it the right thing to do in
light of the litigation we are seeing against gun dealers and gun
manufacturers that is going on in America today?
I do not believe in any way this is a blanket immunity for wrongdoing
or total immunity for wrongdoing. In fact, it is not that. What it says
is, classical rules of law ought to be enforced. Some could ask why we
even need this law. Because how can you sue the person who
manufacturers a can of Campbell's soup if somebody buys that can of
Campbell's soup legally and kills somebody by hitting them on the head
with it? What if you buy an automobile, and you run somebody over on
the street, are we going to sue the automobile manufacturer for that?
What is happening in America is the classical concepts, the classical
rules of litigation are being eroded. The courts are being politicized.
That is a very dangerous thing. As a result, lawsuits are occurring in
ways they should not occur and are impacting our daily lives.
I conducted a hearing in the Subcommittee on Courts of the Judiciary
Committee on the food industry. Should we sue the manufacturer of food,
Little Debbie's, because somebody bought too many of them and became
overweight and obese?
Thirty, 40 years ago those lawsuits would have been laughed out of
court. They don't meet the principle. A person is responsible for what
they eat and how much, not the person who provides the cakes and
cookies and Cokes and those kinds of things, unless that product is
inherently dangerous and harmful to a person and the consumer does not
know about it. We are getting away from that.
With regard to gun dealers and manufacturers, this is the worst of
all. The Federal Government and State governments have taken over the
sale of guns. Regulations are many. I was a Federal prosecutor for
nearly 14 years. I prosecuted people for selling guns. If they file off
the serial number, that is a crime. If the gun dealer does not write
down the serial number, he can be prosecuted and put in jail. If he
does not get an ID from a person who buys a gun, if he does not
ascertain and make that person sign a statement that they don't have a
criminal record or make them sign a statement they are not addicted to
drugs or mentally unstable, or if the dealer knows that and he sells
the gun anyway, then he is in violation of the law.
There are waiting lists in States and counties that dealers must
comply with. If they don't comply with those rules, they can be sued--
not only sued, they can be prosecuted and put in jail. I have
prosecuted and put in jail people who sold guns illegally. That is a
fact.
If we want more regulations on how guns ought to be sold, let's
debate it right here and see if it is justified. We have had all kinds
of amendments to put rules and bans and restrictions on innocent, law-
abiding people who choose to take advantage of the constitutional right
to keep and bear arms. This is what we are talking about. Gun dealers
have to comply with these rules, just like the gun manufacturers. And
if they don't comply with them, they can be sued.
This legislation would not keep them from being sued. What we are
talking about is manufacturers who comply with the laws of
manufacturing, and they sell the gun according to the rules, and a
dealer takes it and sells it according to their rules, without any
knowledge of the manufacturer in Massachusetts or wherever they make
them. The gun dealer in California or Alabama or South Carolina sells
it according to the law.
Then some activist groups that believe we need to conduct guerilla
warfare against a lawful industry want to promote these lawsuits. One
of our Members said earlier: If litigation is the only thing to keep
the gun industry in check, we ought to sue them.
That is not right. If there is not a cause of action, you should not
sue them. They are being sued and are having to expend hundreds of
millions of dollars in their defense. They tend to win those cases at
the bottom line. But they bring them, frankly, in big cities a lot of
times, where there is an anti-gun hostility, where mayors want to crack
down and eliminate gun ownership. We virtually have eliminated gun
ownership in Washington, DC.
They are not happy with what the legislation will do in passing the
law. The elected representatives won't pass restrictions as tight as
they would like to have or to eliminate gun ownership anyway, so they
want to do it through the backdoor, through litigation. I don't like
their idea: If they can't do it this way through law and regulations,
we ought to do it through litigation.
I remember Hodding Carter, who used to work for former President
Carter. He was on ``Meet the Press'' one time. He said something to the
effect that: We liberals have gotten to the point where we want the
courts to do for us that which we can no longer win at the ballot box.
If we need to tighten up on gun restrictions, let's put the rule out
here and debate that. But we don't need to be creating bogus lawsuits
against people who are not doing wrong.
I know the Presiding Officer was a JAG officer and served in the
military. I defended a lawsuit against the United States Government
because a veteran in a veterans hospital walked off the grounds and was
murdered. They sued the hospital. There is a classical rule I have not
forgotten: A criminal act is not foreseeable. You are not normally
expected, anyone, to foresee someone will commit a criminal act.
I defended that lawsuit on the grounds that, well, maybe he had
gotten lost and this or that, got hit in the accident, maybe. But the
principle that the hospital is responsible for an intervening criminal
act did not justify the lawsuit.
We won the lawsuit. That was a long time ago. I don't know if that
would happen today, liberalizing the old principle of law.
A gun manufacturer is not required and cannot be expected legally to
foresee criminals will use the gun and who those criminals are. If we
think they should not have guns, we have to pass laws. We have to amend
the Constitution, frankly, to stop that. They are doing what is lawful.
It is a good effort today. It would be healthy for our entire legal
system that we confront this issue and allow the classical rules of
liability to be followed again and not allow the abuse of it.
We almost voted earlier on constraining liability of doctors who
deliver babies. They are getting sued in incredible numbers. That is a
difficult thing. How do you deal with it? We voted on it. Forty-eight
Members of this body voted for that. But to a much more significant
principle, a violation of the established rule of law, is this idea you
can sue a manufacturer who produces a gun that does what it is supposed
to do and gets in the hands of a criminal and they use it.
How should you normally think you would sue a gun manufacturer? If he
buys a gun and you fire it and it blows up and knocks out your eye.
That is what you are supposed to sue the manufacturer for. If a person
buys a gun from Smith & Wesson and he aims it and fires it and it hits
the target exactly where he aimed it, the gun dealer is not
responsible, if that was a lawful sale of the weapon. We set in this
Congress and the cities and the States set additional restrictions on
the sale of guns. When they do that and when dealers comply with that,
they ought not to be sued.
If they violate those laws, don't comply with the laws, or if they
have absolute knowledge or actual knowledge a purchaser of a gun is
going to use it for a bad purpose, then they have a responsibility.
Absent that, they don't. And they should not be sued.
This would be a good step in removing from our overburdened courts a
host of abusive lawsuits that have no basis in principle and indeed
should not be brought anyway. In fact, this legislation does not change
any principle of American law, but basically clarifies it so these
cases can be dismissed promptly rather than having to go through the
length of time and the great cost that is going on in some of the areas
of this country where the lawsuits are being brought.
I know others want to speak on this issue. I see the Senator from
Ohio and others. I believe this is good public policy. It is time for
us to work hard to establish a more clear understanding of litigation
in America. It has become confused. Congress has always had the power
to define litigation and the parameters of it when it is in confusion
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and not working according to good public policy. We ought to speak out.
I am glad there is bipartisan support for this. I think we will pass
this bill and it will be a great step forward to improve the rule of
law in America.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Idaho.
Mr. CRAIG. Mr. President, I will be brief. The Senator from Ohio has
been on the floor a good long while and deserves to be heard.
As you know, we are in a postcloture environment on a motion to
proceed. I would hope by early afternoon we can actually get on the
bill and begin to consider some amendments on this critical piece of
legislation. It has been portrayed by many in many different ways. I
would ask the Senators to pick up this very small document, 1805. In
fact, there are exactly 11 pages of big print so all of us can clearly
read it.
I ask Senators to go to section 4 of the bill and read what we are
doing. In a very narrow way, we are denying a third party the ability
to reach through the law and say to a law-abiding gun manufacturer and
a law-abiding firearms dealer: When you sold that weapon, it down the
road got misused in a criminal act and, therefore, you are responsible.
Shame on us for suggesting that as a basis of law today in our
country. We have denied it. We have always held the individual
responsible. That is clearly where we ought to go. That is why I think
this ought to be a clean bill. There are some who want to offer
different amendments. We can deal with them on a different day in a
different way. Let's keep this bill clean. This is tort reform in the
very narrowest of margins, and I hope Senators can work with us to make
sure that in final passage we have a clean bill.
I yield the floor.
The PRESIDING OFFICER (Mr. Hagel). The Senator from Ohio.
Mr. DeWINE. Mr. President, I have the utmost respect for my colleague
from Alabama who just spoke most eloquently, and I certainly have
respect for my friend from Idaho who has brought this bill to the
floor. I certainly have great respect for the many firearms dealers who
are legitimate, honest, and hard working, and manufacturers around this
country, but I must oppose this bill.
I oppose this bill because it denies certain victims in this country
their day in court. It singles out one particular group of victims and
treats them differently than all other victims in this country. It sets
them apart. It sets them aside, and it treats them differently. It
denies them their access to court.
It does not put a limit on their lawsuit. It does not put on a cap.
It is not what we were talking about yesterday. Rather, it says they
are barred from coming to court.
It is unprecedented what this Senate, if I can count the votes
correctly, is about to do. This bill shields a certain group of
defendants. It establishes an immunity. This bill would overturn over
200 years of civil law, 200 years of tort law, 200 years of common law.
It would overturn over 200 years of civil law in this country and
fundamentally change our justice system. It would, in essence, turn the
civil justice system and our tort law on its head. It would do this by
denying one group of our citizens access to the court system.
Most fundamentally, the problem with this bill is it sets a
precedent. It will not affect that many victims, that is true, but the
real reason to oppose this bill is for the precedent it sets, because
if we do it for these victims, what is to stop us from doing it for
other victims? And if we don't care about these victims, will we care
about other victims in the future, and will we do it to other victims
who maybe some of us care about?
Civil liability law is about encouraging people and industries to
take responsibility for their actions, and it is also about protecting
victims. It is about deterring irresponsible behavior by making sure
there are incentives in place to encourage people to behave
responsibly. It is about preventing bad conduct and holding people
accountable under our common law.
It is not and should not be about undercutting the ability of
innocent victims to hold irresponsible people accountable for wrongful
and negligent actions. This bill, unfortunately, does just that. It
undercuts the ability of innocent victims to hold irresponsible
individuals accountable for harmful and negligent actions.
The fact is, this bill cuts to the core of civil liability law and
would essentially gut it. As my colleagues know, right now under
current law throughout this country, to prove liability in a civil
suit, the plaintiff only needs to prove the defendant acted in an
unreasonable manner, if the defendant failed to meet his duty to act in
a responsible fashion. That is basic common law, basic civil law, that
his or her failure led to harm to the victim. Nothing more than that is
required.
We do not normally require a victim to prove that the defendant is
guilty of a violation of the law, but this bill, however, provides that
a victim cannot sue a gun dealer for damages resulting from illegal
actions of a third party without also showing that a dealer is guilty
of a violation of the law. So that in this bill, in effect, for a
plaintiff to prevail in lawsuit and recover damages, he or she would
not only need to prove that a gun dealer acted with negligence, that
the dealer was irresponsible, but would also have to prove that the gun
dealer also broke the law. In other words, the plaintiff would have to
prove the gun dealer violated a statute or was guilty of a crime.
There is one exception to this general rule built into this statute
we are debating, and that is the so-called negligent entrustment
exception. For the most part, this bill requires a defendant violate a
statute before he is liable. We do not require this in any other place
in our law. In civil law, sometimes it happens when you prove
negligence, the defendant did violate a statute, but that is not a
requirement. That is not something in a civil suit you have to prove.
When you study law, one of the first things you learn is the
difference between civil law and criminal law, and that someone can be
liable in civil law to someone else and have to pay monetary damages
and it not be a crime. That is a basic concept.
What we are saying in this statute is, under these circumstances,
with an irresponsible gun dealer, that the plaintiff would have to
prove that the irresponsible gun dealer violated a criminal law. We
don't do that anywhere else in our law. Why do we want to do it in this
case? Why that special protection in this one case?
If those who support this bill think that is such a great idea that
we want to build this impediment into this law or the requirement into
our civil law that you have to violate criminal law before you can sue
someone, if that is such a great idea, let's just pass that law for
everything. So in any civil suit in this country, you would have to
find a violation of criminal law. I don't think we want to do that.
If it is good for this victim, why is it not good for everything?
Obviously, it is not. Obviously, we are not going to do that. I do not
see anybody suggesting that.
Clearly, this bill would make a major change in traditional liability
law and is something we should more thoroughly consider and debate
before we move toward a vote. Why is there such a rush to pass this
legislation? This is legislation that I might point out never had a
hearing. No witnesses were called. No one came in. Yet we are here on
the Senate floor today. No discussion about this. Why is there this
rush to bring this bill to the Senate floor? Why the rush to judgment?
I have two thoughts. I guess the main reason we are here is because
there are the votes here to do it. There is the power to pass this
bill. When there are the votes, it can be done, and I can count. I know
which way this vote is going to come out. There are the votes to pass
it. So when there are the votes, I guess the job can get done. But that
does not make it right.
I ask my colleagues who have cosponsored this bill or are thinking
about voting for it to think one more time, to think about the
precedent that is being set. Yes, undoubtedly there are frivolous
lawsuits that are being filed against this industry. There is no doubt
about that. But there are legitimate victims who when this legislation
is passed will not be able to file their lawsuits.
Why not trust the good judges we trust in every other civil suit in
this country to make the decision to throw
[[Page S1550]]
out those frivolous lawsuits? There are frivolous lawsuits filed in
this country every day in all kinds of cases, and we trust the good men
and women, the judges who sit on our benches, to get rid of those
cases.
By and large, they do a pretty good job kicking them out of court.
Why penalize the people who might have a legitimate case and kick them
out and deny them, in fact, the opportunity to ever get to court at
all?
The precedent is what I worry about. I worry about the victims in
this case, but I worry about the precedent because if we, who have the
votes to do this today to this group of victims, say we are going to do
it because we have the votes to do it, we have the power, whether it is
because this lobby is more powerful for whatever reason, what about
when the next lobby comes along and they happen to have the votes?
Maybe it is a set of victims you worry about or you care about who will
be blocked from coming to the courthouse and filing their case. What if
it is your child, your mother, your father, your wife, or your husband,
and they happen to be among a group of victims who some lobby has put
together enough votes to convince Congress to deny them the access to
come to court? Their day may come. So, yes, I worry about the victims
we are going to disenfranchise and block from coming to the courthouse
by this bill. But more than that I worry about the precedent we are
setting by this bill.
I worry about the day in the future when another lobby group, another
Congress, has put together enough votes to come to this floor to deny
another set of victims the right to have access to the courthouse. I
think that is what should bother everybody else in this Senate.
Let me make a prediction about this group of victims. Yes, the
passage of this bill will get rid of some frivolous lawsuits. There
will be lawsuits that will never be filed because of this bill, no
doubt about it. But let me make a prediction to everyone who is
thinking about voting for this bill. Mark my words, if this bill
passes, in the future there will be a case or cases that will be so
egregious and so bad that when they are read about and it is found out
that that victim could not file a lawsuit and could not file that
lawsuit because this Senate voted not to allow that victim to file that
lawsuit, it will be so bad, it will turn one's stomach. Mark my words,
that will happen if we pass this legislation.
A second reason which has not been stated or discussed as to why
there is such a rush to judgment and why some people are in such a big
hurry to get this bill passed: We are having a great increase in crime
technology. One of the great things that has happened in the last few
years is our ability to trace guns and ballistics. We are putting great
systems together in this country, and many of us in the Senate have
worked hard to do that. We have the ability in law enforcement to trace
these guns better today.
I think some of the irresponsible--notice I say ``irresponsible''--
gun dealers are worried about that because they know their days are
numbered. They know when they ship out all of these guns, put them out
on the market, guns that are just getting by today, they know they are
going to be able to be better traced and they know they are going to be
more liable and we are going to have the ability to trace them.
I believe the passage of this legislation will be more damaging in
the future than it is even now. As ballistics technology improves, law
enforcement will be better able to find the original source of crime
guns, and that oftentimes would be back to a dealer who should not have
sold the weapon in the first place. To the extent that we immunize
these negligent dealers now, we will be decreasing their incentive to
act responsibly and therefore deny their victims their day in court.
There is another aspect about this bill that has not been talked
about a lot, and that is the fact that it is retroactive. How dare us
in the Congress come to the Senate floor and wipe out every lawsuit
that has been filed in this country that would come within the
parameters of this bill. How arrogant of us to do that. In this
Congress, we have the arrogance to come to the floor and pass
legislation that wipes every case out in every State in the Union where
there is a lawsuit pending. Did we really get elected to the Senate to
do that? That is what this bill does. It will kick people out of court.
It would not just bar people from coming to the courthouse. That is not
enough. No, what this bill does is kick people out who are already in
court. It kicks out people on whom judges have already ruled summary
judgments, motions to dismiss, and have already made decisions that the
case is at least valid enough to go forward and to go to trial. We are
saying, oh, no, judge, we are now going to kick that case out of court
and take it away from you and throw that person out of court. To me, if
we do that, it would be the height of arrogance. I think that is wrong.
It is not my job to judge these cases. It is not my job to determine
whether one of these cases should proceed or should not, or determine
whether someone is negligent or not negligent. But I don't think, on
the other hand, it is my job to say someone should not have the right
to go to court and present that to a judge and ultimately, in most
cases, to present that to a jury. That is fundamentally the American
way.
Let me talk about a couple of cases. We don't need to look too far to
find legitimate cases that would be dismissed if this bill were to
become law. Everyone remembers all too well the tragedies of the DC
sniper cases. Some of the victims of the DC snipers are suing the
Washington State gun retailer known as Bull's Eye Shooter Supply for
allowing John Malvo to walk off unnoticed with a 3-foot semiautomatic
assault rifle. In fact, there were allegations that Bull's Eye not only
failed to report the missing assault rifle, this particular missing
assault rifle, but also failed to report over 230 other missing
firearms because Bull's Eye was never aware that over 230 guns were
missing, in total. That is absolutely unbelievable.
It is, of course, totally unacceptable for a firearm dealer, a
retailer, to so poorly monitor and protect its stock. If these
allegations are proven true--again, I don't know if they are true--then
Bull's Eye should be held accountable for the negligent fashion in
which it handled these weapons. Under the provisions of this bill,
however, such behavior would be protected from private lawsuits. We
would in effect be saying it is OK to allow unknown people--without, of
course, background checks--to walk off your premises with hundreds of
guns, be they criminals, terrorists, or in this case an underage serial
killer.
There is another case in Worchester, MA. This bill would not only
prevent recovery for the victims of the DC sniper, but the family of a
young man killed in Worcester, MA, by the name of Danny Guzman would
also be barred from recovering for the negligence that caused his
death. In that case, Danny Guzman was shot and killed with a gun taken
from a gun maker by one of his own employees. The employee had a
significant record of violence and drug abuse but was able to steal the
gun because apparently the gun maker allowed this criminal free access
to his guns without any legitimate check of his background and also
failed to implement effective security procedures that would have
prevented the theft. Indeed, this gun maker could not account for at
least 50 of his firearms. If this bill were to pass, Danny's family
would be barred from continuing their suit against the gun maker for
negligence in completely failing to screen its employees or secure its
facilities to prevent repeated thefts of guns.
Let me talk about another pending case--again, I emphasize, this is a
pending case--that would be affected by this bill. In this case, a
couple entered a gun shop. This was referred to by my colleague from
California a few minutes ago. A couple entered a gun shop. The man
identified several weapons he was interested in purchasing. The woman
he was with was not involved in the discussions between the man and gun
shop owner and clearly didn't know much at all about guns. Then she
purchased these guns and she paid cash. She paid cash for them.
The man in the gun shop, because he was a convicted felon, was
prohibited, of course, from purchasing guns. The woman, however, was
allowed to buy them on his behalf. The man then illegally sold the guns
on the black market. One of these guns was used to shoot at least one
police officer.
[[Page S1551]]
Clearly the gun shop owner should have known what was going on. The
woman, while technically the purchaser, obviously was merely carrying
out the wishes of a convicted felon. Therefore, the owner should never
have sold her the guns in the first place. That would appear at least
to be negligence. Obviously the criminal who shot the police officer
should go to jail. But the dealer who negligently supplied that gun to
the criminal should be civilly liable for his negligence as well.
However, if this bill becomes law, it is likely the gun shop owner will
be immune from liability.
As I mentioned earlier, there is a possible exception written into
the law known as negligent entrustment, that might arguably, in this
case, allow the lawsuit to go forward. We don't know. But many courts
have construed that exception in the past narrowly under the common
law, so it is a close call in a case such as this. Candidly, though,
why in the world would we even want to take a chance this sort of
irresponsible behavior might be immune from liability?
The point is, we can argue these cases. I know some of my colleagues
might come to the floor and say under our bill maybe these cases could
proceed. Maybe they could proceed. The point is, Why take a chance? Why
take a chance? I would argue the three examples I have given. This bill
could stop these cases cold in their tracks, and in each one of the
cases I have cited, we have lawyers we could bring in, if we could get
a hearing, who would swear under oath these cases, in their legal
opinion, would be stopped by this bill. We could debate that. But the
point is, why take the chance? Why pass a bill that would create that
kind of legal impediment to people proceeding?
Again, we get to the point I raised earlier, and that is the
inequity, the inequality of creating two classes of victims in this
country. Other industries face legal challenges. Other industries have
had lawsuits filed against them they don't like. Other industries face
suits that in their eyes many times are frivolous and they have cases
thrown out of court. Other industries are involved in cases where many
people die. We understand that. But we don't grant this kind of
immunity from civil liability.
For example, the auto industry. There are 42,000 or 43,000 Americans
who die in car accidents every single year. We wouldn't think of coming
to the floor and granting any kind of immunity like this for the auto
industry, would we? No, we wouldn't. We wouldn't think of that for the
world. We can each come up with our own example.
But here we are today picking one industry for no reason. We all know
what the truth is, for no other reason than that they have simply put
together the votes to do it. They are here and they have the votes. If
I count correctly, they are probably going to get this passed. But that
doesn't make it right. Victims are going to suffer and there will be
victims in the future who will be denied their opportunity to go to
court.
It is wrong. I support the second amendment. I support individuals'
rights to own guns. I support gun manufacturers. I support legitimate
gun dealers. But this is wrong; it is unfair. It is unfair to victims.
But more important than that, it is a horrible precedent.
If we do it this one time, what is to stop a future Congress, where
the votes are maybe configured differently, from saying, oh, there is
another group of victims and we are not going to protect them. We are
not going to protect them.
If we deny this group of victims their rights, what is to stop a
future Congress from denying another group of victims their rights?
Let us think about that before we cast our vote. I thank the Chair. I
yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I want to first commend my colleague from
the State of Ohio. I was listening to his presentation. It was a
reasoned presentation which I think analyzes this bill in a fair
manner. I want to also salute his political courage. It is not easy on
his side of the aisle to stand up and oppose this bill. He has done
this time and again on many issues. I am happy to count him as a friend
and as a colleague whose judgment I value very much. I thank the
Senator from Ohio for his continuing leadership in this Chamber.
Mr. President, what is this bill? S. 1805 is a bill brought to the
Senate floor by the National Rifle Association on behalf of firearms
manufacturers, dealers, and their own trade association. It is a bill
that has been introduced to insulate those manufacturers and dealers
and the NRA itself from liability for wrongdoing. It is unimaginable
that we would name any other industry in America and say that you can
sell your product and not worry about being held accountable, if you
did it in an irresponsible and negligent way. We wouldn't think of
doing it, but we are doing it with the gun industry.
I can count votes. I can count the cosponsors. A majority of my
colleagues support this bill. I can't explain it. I could never explain
it. In a country where we value the right to own and use firearms
legally and responsibly, we have a bill which says we will protect
those who sell and use firearms illegally and irresponsibly. Why? Why
does the Senate reach this low point--possibly one of the lowest points
in its history when we are carving out an exception from liability for
gun manufacturers and gun dealers? Maybe my colleagues who support this
don't watch the evening news in cities across America. Maybe they do
not see the blood and gore in the streets of cities from the misuse of
firearms used illegally and irresponsibly that have caused so much
heartache and misery for families across America. Frankly, I think they
are ignoring the obvious--that unless we ask those who own firearms to
establish a standard of use that keeps them away from those who misuse
them, that we, in fact, are inviting more restrictions on the legal use
of firearms. This bill--this outrageous bill--is going to draw us again
into a national debate which is long overdue.
Since President Bush was elected and during his campaign, the NRA
said once he is in the White House we don't have to worry about any
restrictive legislation. Since President Bush's election, we haven't
had an honest debate about a gun issue in Congress. That is a fact. Gun
crimes continue, gun deaths continue, and the proliferation of weapons
in the hands of those who misuse them continues. We ignore it, but we
can't ignore this. This is not an effort to restrict gun ownership.
This is an effort to restrict the legal ranks of the victims of gun
crimes.
There is a crime victims' amendment which has been supported by both
sides of the aisle--Senator Kyl, a Republican, and Senator Feinstein
from California, a Democrat. They make an impassioned plea for a
constitutional amendment to make certain that crime victims and their
families will be present in important parts of criminal proceedings. It
is a compelling argument. I had my personal questions as to whether it
rises to the level of a constitutional amendment, but I would be happy
to enthusiastically support a Federal statute that would establish that
right.
I believe when it comes to victims, they need to be a part of the
process of prosecution. They need it not only because they are
important to the process but because it brings closure in their own
lives.
The many Members of the Senate who rush to the side of crime victims
for this constitutional amendment are the same Members of the Senate--
many of them--who are supporting this legislation which will close the
courthouse doors to crime victims and their families across America
when firearms are involved. Don't tell me your sympathies are with
crime victims. If your sympathy is with the victims of crime, you have
to vote no on this.
Let me give you an illustration in my home State of Illinois.
Five years ago, in June of 1999, a man named Benjamin Smith went on a
shooting rampage in my State. You may remember it. It was finally
discovered that he was linked to a group known as the World Church of
the Creator. He was a follower of a white supremacist. And in his
mania, this demented disciple went on a shooting spree across the
Midwest. In June 1999, Benjamin Smith attempted to purchase guns from a
licensed gun dealer. He was denied because a background check
[[Page S1552]]
turned up a domestic violence restraining order which prohibited him
from purchasing a gun. So he turned to someone he knew on the street
who could buy a gun--a gun trafficker named Donald Fiessinger.
Fiessinger routinely bought handguns--usually Saturday night specials,
cheap little crime guns--from a place called the Old Prairie Trading
Post in Pekin, IL. Mr. Fiessinger would then resell these guns through
classified ads in a local newspaper. Over a 2-year period, Fiessinger--
this gun trafficker--purchased 72 guns, three a month on average, from
the Old Prairie Trading Post in Pekin, IL, and then turned around and
sold them.
The gun store never even asked at any time whether these guns were
going to be used for Fiessinger's personal use.
I think it is pretty obvious. Buying three guns a month for 2 years--
I don't care whether you are a target shooter or interested in self-
defense, I can't imagine a need for the 72 cheap Saturday night
specials which Fiessinger was buying from the dealer.
The manufacturer of these cheap crime guns, of course, didn't place
any restrictions or conditions on dealers like the Old Prairie Trading
Post. It didn't say you should prevent the large volume sale of guns to
people who are obviously turning around and reselling them to gun
traffickers.
As a result, this Benjamin Smith bought two guns from Fiessinger, and
then he went on a 3-day, hate-filled shooting spree across Illinois and
Indiana. It was a shooting spree inspired by his hatred and his
bigotry. He targeted racial and religious minorities. When it was all
over, he killed two people and wounded nine others.
Five of those victims joined in a lawsuit against both the
manufacturer of these cheap Saturday night special weapons, as well as
the distributor. They included Sherialyn Byrdsong--we know that name in
Chicago and in the Midwest. It was her husband, Ricky, a former
basketball coach at Northwestern University, an African American, who
was shot in the back and killed as he walked with his children down
their residential street in Skokie, IL; on behalf of the family of Won
Joon Yoon, a 26-year-old South Korean graduate student at Indiana
University, who was shot twice in the back and killed on the steps of
the Korean United Methodist Church in Bloomington, IN, picked out of
the crowd because he had the appearance of an Asian; Rev. Stephen
Anderson, a minister who was shot on his way to join his family at a
Fourth of July celebration; Hillel Goldstein--whom I met--one of six
Orthodox Jews picked out by Benjamin Smith on his shooting spree when
he drove through a predominantly Jewish neighborhood in Chicago,
hunting for Jewish families walking to the synagogue for temple
services; and, Steven Kuo, another graduate student at the University
of Illinois.
These five survivors and families brought a lawsuit. The case is not
based on the fact that the gun was present and used in these crimes.
The case against the manufacturer, Bryco Arms, is based on the
intentional and reckless sales and distribution practices because Bryco
took no reasonable steps to ensure that their guns were not diverted to
prohibited customers.
Although Bryco asked the court to dismiss the case, the court ruled
that a claim of public nuisance should go forward against this
manufacturer.
In October 2000, the gun dealer, Robert Hayes of the Old Prairie
Trading Post, was indicted on 13 counts of violating Federal firearms
sale laws because he didn't get approval for the sales from the
Illinois State Police before transferring guns to that trafficker,
Fiessinger. The seventh count of the indictment concerned the gun used
in the Benjamin Smith shooting spree.
Robert Hayes pled guilty to one count of making an illegal sale of a
gun and was sentenced to 2 years of probation. Fiessinger also pled
guilty and was sentenced to 10 months in prison and 2 years of
supervised release.
Despite this acknowledgment of criminal activity by the dealer and
the gun trafficker regarding the sale of firearms, the lawsuit brought
by the victims of Benjamin Smith would be terminated by this bill. The
families and the survivors from the shooting spree would have lost and
will lose their right to go to court because this bill says that even
if the manufacturer is irresponsible in distributing the weapons and
the dealer is irresponsible in selling those weapons to a trafficker,
this bill says they cannot be held accountable despite the fact that
people died and were injured on this shooting spree. Although this gun
dealer, Robert Hayes, pled guilty to making an illegal sale, the gun he
pled guilty to illegally transferring was not the gun used by Benjamin
Smith. That is crucial. Smith's gun was under count 7, an indictment
Hayes did not plead to. Therefore, the criminal conduct of the dealer
did not cause the shooting. So the exception in this bill would not
help.
As a result, Hayes, the gun dealer, the Old Prairie Trading Post, was
free to argue that the victim's case should be dismissed because he
could not be held liable for the lawful sale of a gun. The court ruled
against his motion and held that it would allow a claim for public
nuisance and negligence to continue. If this case were frivolous, the
court would have dismissed it. It was not frivolous. People were dead,
injured, and someone should be held accountable for it.
Why, then, should we in Congress, in the Senate, step into this
lawsuit, not only prospectively but retroactively, and say to the
families of the victims that they have no right to go to court, to hold
the manufacturer accountable for irresponsible distribution practices,
they have no right to go to court, as this bill says, and hold a dealer
responsible, a dealer that is literally feeding firearms and Saturday
night specials to gun traffickers? That is what this bill says.
I point out the exceptions in this bill are so narrowly drawn that
even if this gun dealer pled guilty to count 7 for not seeking approval
from the Illinois State Police before the sale, the victim's case would
still be terminated.
The third exception provided in the bill requires that the violation
of law be a proximate cause of the harm for which relief is sought.
In this case, if Hayes, the dealer, had sought approval from the
State police, the police would have granted it because Fiessinger was
not a prohibited purchaser. Therefore, regardless of whether Hayes
violated the law, Fiessinger would have been able to purchase the
weapon and resell it to Smith. So there is no way around it.
This bill is designed to stop those families and those victims from
holding an irresponsible gun dealer for peddling guns to a trafficker
used in the commission of a crime.
The Senator from Ohio said it best a few minutes ago: It is an
outrage that we would say, retroactively, we are going to throw these
suits out of court; that we would say to these families, these crime
victims, they will lose their day in court. Why? To protect a special
interest group--gun manufacturers, gun dealers, and trade associations
such as the National Rifle Association.
Take a step back for a moment and look at the big picture. We have a
case that the court in Illinois has ruled is not frivolous, a gun
dealer and trafficker who have already pled guilty to illegal firearms
sales, and yet this legislation would close the courthouse doors for
the tragic victims of this shooting spree.
Let me give one other case that amply illustrates why this bill is so
bad. Michael Ceriale, a 26-year-old Chicago police officer, was shot by
a 16-year-old member of the Gangster Disciples, one of the terrible
street gangs that, unfortunately, wreak havoc on many neighborhoods of
the great city of Chicago. This police officer, 26 years old, was
killed conducting narcotics surveillance. Once again, the mere use of
the gun is not the underlying cause of action. In this case, his family
sued the manufacturer, Smith & Wesson for shipping the gun used to kill
the officer to the distributor, Camfour. Smith & Wesson sold this
weapon to Camfour, even though it knew or should have known that
Camfour, the distributor, was part of a core group of irresponsible
distributors that act as the initial distributors for nearly 80 percent
of the firearms traced to crimes in the city of Chicago.
There is ample evidence that when we trace back crime guns, we find
there are a handful of irresponsible gun dealers that are selling these
guns on a
[[Page S1553]]
wholesale basis to gangs and to gun traffickers. It is outrageous that
this continues in this country.
For those irresponsible gun dealers, there is good news in S. 1805.
You are off the hook. S. 1805, brought to us thanks to the National
Rifle Association, says that if you are one of those irresponsible gun
dealers selling to traffickers, selling to criminal gangs, shooting
innocent children on the street, killing police officers, you are off
the hook with S. 1805.
They argue it is part of your second amendment right to be able to
sell guns on a wholesale basis to be used by criminal gangs across
America. Incredible.
This Camfour, the distributor, then shipped the gun to Strictly
Shooting, even though it knew Strictly Shooting was part of 24 gun
dealers that were responsible for 27 percent of the crime guns
recovered in the city of Chicago.
On August 15, 1998, the gun found its way into the hands of a
Gangster Disciple gang member, who killed a 26-year-old Chicago police
officer, Michael Ceriale. Unfortunately, this case, even though it has
been upheld by the court of appeals in Illinois, would be dismissed
because its cause of action is based on the claim of public nuisance,
which does not fall into one of the narrow exceptions written into this
bill.
Now, all who stood with pride and admiration for the men and women in
uniform, those policemen and those firefighters who rose to the
occasion on September 11 and protect us every single day, all Members
in the Senate who say to these men and women that when they put their
badges on in the morning as police officers and put their lives on the
line that we can never thank them enough, all who give speeches back
home about the law enforcement officers who keep our communities safe,
should keep in mind that S. 1805 is a cop killer bill. S. 1805 says
that cop killers such as the Gangster Disciple gang members who killed
Michael Ceriale in the city of Chicago, those cop killers are going to
get a free ride because of S. 1805. The family of this 26-year-old
police officer, going to court to recover money for those irresponsible
activities by the manufacturers, distributors, and gun dealers, will
have the courthouse door slammed in their faces.
Cop killers will love this bill. Frankly, those that supply the guns
to these cop killers should be ashamed of themselves and be held
accountable. But they will not be.
So in those two illustrations from my home State, crime victims of a
shooting spree will lose their right to go to court, to hold gun
traffickers responsible under this bill, and the family of a fallen
Chicago police officer who gave his life trying to stop the drug trade
in that great city will have the courthouse doors slammed because the
National Rifle Association wants this bill and wants it desperately.
That is a sad commentary.
I remind my friends, do not stand before the Senate, saying how much
you care about crime victims, how much you care about the police who
risk their lives every day for us and then turn around and support this
terrible legislation.
You cannot have it both ways. You cannot let guns flood America's
streets to be used with criminal intent on a day-to-day basis, guns
that are sold to criminal gangs, guns that are sold to deranged
individuals. You cannot stand by and watch that happen and then protect
those responsible for the sales with this legislation. That is exactly
what is happening.
I thank the Senator from Rhode Island, Senator Reed. He has been a
leader on this issue. We have talked about the DC sniper case, which I
know will be addressed time and again during the course of this debate.
I make it clear that this was no isolated case in the District of
Columbia when these two men went on a shooting spree killing innocent
people in every direction. Sadly, these things are being repeated over
and over.
To my friends who are following this debate who are hunters,
sportsmen, target shooters or own a gun for the self-defense of
themselves and their family, I plead, stop for a moment and think about
this. To protect your rights in America, to use guns legally and
responsibly, you must tell those like the National Rifle Association,
that their agenda on this issue is too extreme. What they are trying to
do is to protect those who use guns illegally and irresponsibly. In
their passion to do that they are jeopardizing your rights. They are
raising a question which ultimately will come back to you, the legal
owner of a firearm, as to whether or not we have gone too far in
America.
We were told, of course, when President Bush was elected to expect
this. The National Rifle Association would have its day. We were told
they have a friend in the White House. It is abundantly clear that
President Bush is going to sign this bill. But what is not clear to me
is how my colleagues in good conscience can support this legislation. I
cannot understand this. Day after weary day we come to the floor of the
Senate and say that individuals across America are going to be denied
the right which we have considered part of our American birthright, the
right to walk into a courtroom, rich or poor, to stand before a judge
in a court of justice, and to ask for fair treatment, to ask that
others be held accountable, and to let that court, that judge, that
jury make that decision.
Clearly, we are seeing, day after day, an attempt to erode that right
to go before the jury of your peers, your neighbors, and to let them
decide what is just and what is right. In this case, unlike the other
cases, it is not just a matter of money, it is a matter of life and
death--life and death for crime victims, life and death for police
officers.
That is why the Major Cities Chiefs Association opposes this
legislation. They know what this means. They know that police officers
across America will be targeted because of this bill. They know their
families, once they are killed in the line of duty, will have fewer
options to turn on those who have used guns and those who have
purchased guns illegally. They know that.
The Major Cities Chiefs Association, the Brady Campaign To Prevent
Gun Violence--all of these organizations have made it clear this is a
terrible bill. It is a bill that should be defeated. I sincerely hope
my colleagues will join in support of stopping and thinking twice
before they vote for its passage.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, let me remind my colleagues again that we
are in a postcloture environment. We are hoping we can get on the bill
and hoping we can look at some amendments. I do have to respond to try
to keep this debate clear and honest and the Record representing what
it ought to represent.
My colleague from Illinois says the reason we have this debate today
is because of George W. Bush. He forgot that 10 Democrat cosponsors and
his own leadership are cosponsoring this bill and are openly advocating
its passage. This is not about George W. Bush. This is about the rights
of Americans under existing law, and also frivolous third-party
lawsuits that we ought to block. That is what the essence of this
debate is about.
Now, certainly the Senator from Illinois can say what he wishes to
say on the floor. Will George W. Bush sign this bill if it gets to his
desk? He says he will. I would think any law-abiding American U.S.
President would want to preserve law in this country, the kind of law
that would suggest that any President would want to reinforce centuries
of legal precedents based on one premise, individual responsibility.
Are we suggesting that, as the Senator from Illinois suggests, a gun
manufacturer ought to be liable for a criminal act of a third party?
Well, he used the word--let me see; I have written it down here--
``establish a standard of use.'' I believe that was the term used.
How many automobile dealers establish this standard of use of their
product when it is manufactured in his State and sold in the
marketplace, that it will be used safely and lawfully? Now, would any
automobile manufacturer intentionally sell a car knowing a drunk was
going to get in it and wipe out a teenager or a teenager wipe out an
adult?
Mr. DURBIN. Will the Senator yield for a question?
Mr. CRAIG. Not at the moment. I want to be quick here so I can yield
to one of your colleagues.
Of course they would not.
Does any manufacturer of a legal firearm make the clear assumption
[[Page S1554]]
that it is going to be used illegally? Of course they do not. They make
them under the guidelines of the law. They abide by the law. And we
protect those who do. We do not--we do not--protect those who do not
abide by the law.
The Senator also went on to say that this would somehow protect trade
associations. Go to the bill. You have held it up. I wish you would
read it in detail. It is not the intent of our bill to do so. In fact,
the Daschle amendment clarifies that we do not necessarily protect
trade associations. Well, then you better talk to Senator Daschle. He
is the amender of the legislation that is before us to clarify that
point. We believe we have effectively clarified it, and the
Congressional Research Service says we have done just that.
So if a trade association acts negligently, acts outside the letter
of the law, then they are every bit as liable as they would be under
current law. So we do not reach out to do that.
Do we close the courthouse door? Absolutely not. The plaintiff makes
it to the courthouse, with his or her attorney. They argue it before
the judge. The judge weighs it in light of the law--if this were to
become law--and makes the decision as to whether that case can go
forward. I think that is clearly an important argument that needs to be
established.
As to the argument about lawsuits involving, what they describe as,
high volume gun sales--I think he spoke to a tragic situation in
Illinois--the regulations of the numbers of guns that can be sold in a
single transaction, however, are not the job of the courts. They are
the job of the legislators. They are that Senator's job and this
Senator's job, if you can gain a majority of the votes to establish a
certain number of gun sales per day. The job of the dealer is to check
the background, to check the legality, and to do so openly and
knowingly.
Now, having said that, let's talk about the dealer. In S. 1805, we
exclude from its protection actions brought against a transferer
convicted under section 924(h), title 18 of the United States Code, or
a comparable State felony law. 18 U.S.C., section 924(h), provides:
whoever knowingly transfers a firearm knowing that such firearm will be
used to commit a crime of violence or drug trafficking crime shall be
imprisoned not more than 10 years, fined in accordance with this title.
S. 1805 does not wipe out this provision of the United States Code.
We intentionally narrowed its focus so that would not happen.
The Senator from Illinois is rightfully concerned about the
trafficking of firearms, as am I. I certainly do not want that to
happen. But what I do not want to happen either is for hard-working men
and women of this country--many of them union men and women--who are
working in firearms production in this country today for civilian use
and for military use, to lose their jobs because their company has
simply been strangled to death by lawsuit after lawsuit after lawsuit.
That is what is happening.
We have lost thousands of legitimate jobs in this country because
this industry is a very small industry in total. Put it all together,
and it is less than a Fortune 500 company. That is why it is extremely
cautious about how it operates within the law, and it is why our judges
have recognized the frivolous character of these lawsuits and have
thrown them all out.
The problem is simply this: It costs hundreds of millions of dollars
to argue the law and to argue before the courts and to continue this
legal dance that certainly those who are now engaged in it put law-
abiding manufacturers and dealers through. Well, that is going to be
part of the argument we look at here.
But I do ask our colleagues to focus on the bill, to understand how
narrowly it has been designed. It is a product of a bipartisan effort,
not a single-interest effort but a bipartisan effort, to reform our
tort process in a way to deny a very particular frivolous kind of
lawsuit of the kind that is addressed in S. 1805.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I wanted to ask a question of the Senator
from Idaho but he did not have an opportunity to yield, so I will make
a statement and then yield the floor to the Senator from Washington who
has been waiting patiently.
I missed it. I am sorry, and I apologize. I thought this was a bill
to protect a special interest group, and it turns out it is a jobs
bill. If I had only known that. We have lost almost 3 million jobs
under this President, and this is being offered to create jobs. I have
to take another look at this. Because, frankly, if protecting gun
carnage on the street is going to create jobs, where does that leave
us? Where does that leave us? If we reduce gun violence on the street
and the number of victims, it is going to cost us jobs. Well, I guess
you can argue that. It would be less work in the trauma centers, less
work in emergency rooms, less work in the rehabilitation centers from
the gun violence victims.
I guess we would lose some jobs. I guess the Senator from Idaho is
right. What a price to pay--your money or your life.
The argument has been made we have to support this bill to protect
American jobs. Crime victims and their families who have had someone
killed or maimed with a weapon won't be able to go to court to hold the
manufacturer and dealer responsible because we need jobs in America.
Has it come to this? Have we reached this point?
Let me say to my friend from Idaho, I don't understand what he said
about trade associations. I turn to page 11 of the bill, and it is all
about trade associations. As I read that, I can't help but believe that
written between the lines are three letters: N-R-A. Isn't that what it
is all about? So the trade association that is being protected by this
bill is the National Rifle Association?
If it isn't about trade associations, strike the whole thing. Get rid
of it. It is all over this bill, protecting trade associations.
I might say his reference about transfers to individuals knowing that
they will use it for a crime, the legal standard most of us learned in
law school is ``knew or should have known.'' There is a world of
difference between knowing you are going to use a gun for a crime or
the fact I should have known it. Because Mr. Fiessinger was buying
three guns a month for 2 straight years, at some point I should have
known something is odd about his behavior. He was not buying guns for
personal use or for self-defense. He was a gun trafficker.
Did I know as a dealer that he went outside the door and sold it to
someone who used it for a crime? There was no way I would know it. I
was inside the store. But should I have known? You don't include that
standard in your bill. You intentionally exclude it because it is the
obvious and real life standard people are held to.
Now that I know this is a jobs bill, I will have to look at it long
and hard. We need jobs so desperately in America that we are going to
close the courthouse doors to the widows and families of slain police
officers for fear if they recover from a gun dealer who is selling guns
to criminal gangs, somehow or another that is going to cost us jobs.
What a sad rejoinder that is the defense for this bill.
I yield the floor.
The PRESIDING OFFICER (Mr. Sununu). The Senator from Washington.
Ms. CANTWELL. Mr. President, I am glad this debate has finally turned
toward jobs. For the last 2 days we have been having a debate about
what groups to exempt from liability. One of the groups we need to be
talking about--because they have paid a heavy price for the liability
of our economy--is the unemployed workers in America. Because we won't
reinstate the federal unemployment benefits program, unemployed workers
are being held liable for our economic recession.
I am glad my colleagues are finally talking about jobs. We need to be
questioning whether jobs are being created in this country. We need to
ask whether we believe in the President's economic forecast for this
year, in terms of the job growth he says is going to take place, or
whether we don't believe those numbers and we want to do something
about unemployment.
In the past few weeks, we have heard much about the number of jobs
that will be created this year. And we've also heard some backpedaling
based on economic modeling, statistics and rounding errors. In the end,
they say
[[Page S1555]]
that the economy is going to grow by X number by the end of this year,
and we don't have to worry about the unemployed.
The bottom line, however, is that the economy isn't going to create
enough jobs to put America back to work. And since this recession
started in early 2001, millions of people have lost their jobs through
no fault of their own, and millions are still out of work. After the
recession began in March of 2001, this country faced another blow: 9/
11. In addition to the horrific personal losses resulting from that
tragedy, our national economy and my own State's economy was gravely
hit in a variety of sectors that caused huge job loss.
And here we are today, still with 2.3 million fewer jobs than in
January 2001. And yet, some of my colleagues on the other side of the
aisle would like to say the economy is recovering and we don't have to
do anything about helping unemployed workers.
Part of our job at the Federal level is to use the Temporary
Emergency Unemployment Compensation program to help laid-off workers in
times of economic decline. This program is funded by employer, and by
extension employee contributions. They are paying into a Federal
program that is supposed to help in downturns of our economy to keep
people--with mortgage payments, hospital payments, health insurance--
going until they actually have an opportunity for jobs in the future.
This has been a essential program.
At the State level, a laid-off worker can get 26 weeks of help. But,
during recessions that's often not enough to get back to work. So the
Federal Government has said that in times of high unemployment, we're
going to step in. After a laid-off worker has exhausted their state
benefits, a Federal program will kick in that provides an additional 13
weeks of help. In some instances where States have really been hard hit
by high unemployment, such as my state, which had for a time over 7.5
percent unemployment, there is an additional 13 weeks of help. But
somehow this body has decided, after much debate, that we were not
going to continue that program.
In fact, in December of last year we tried numerous attempts to pass
unemployment benefit extensions. We tried to get the other side of the
aisle to agree that this was a necessary step. We were rebuffed by
people saying the economy is going to get better, the economy is going
to get better, so we don't need to do this.
I found it amazing that people on the other side of the aisle, when
we returned in January, were still asserting that in that debate: The
economy is going to get better.
Now the President and his Cabinet, who came to Washington State just
this past week, are saying their original predictions on the economy
aren't going to be as rosy as they predicted. The President's own
economic report, in which they cite on page 98 a chart talking about
growth and real GDP and productivity over the long term, basically said
this year we were going to create 2.6 million jobs. That was a great
forecast. Many of my colleagues on the other side of the aisle said
that that is an indication that the economy is going to grow, and we
don't need to do unemployment benefit extensions. People will find
jobs.
The three Cabinet secretaries--the Secretaries of Treasury, Commerce,
and Labor--who visited Washington State must have thought the picture
was so rosy that they didn't need to meet with unemployed workers who
wanted to share their plight. And yet, when they were asked about the
President's economic numbers and the President's economic plan, they
all backed off of those numbers. They all said the economy is not going
to grow at that fast a rate. Those were just numbers.
If they are just numbers and you don't really believe that is the
growth rate, then let's go back to the business we are charged with--
helping out in times of high unemployment with Federal assistance. This
program is paid for by employers and employees. Let's put back on the
table the 13 weeks of Federal assistance and, in high unemployment
States, an additional 13 weeks in Federal assistance.
Let's not make a mistake. There are hundreds of thousands--in fact
760,000 people in America--who have exhausted all their state benefits
and have no federal program to pick them up. And in addition to the 8.3
million people officially counted as unemployed, there are another 1.7
million who are actually no longer counted as in the ranks of the
unemployed. If we count them, the national unemployment rate jumps from
5.6 percent to 6.7 percent. These people are out of work just the same
as those who are counted, but yet they are not in the numbers. Many are
discouraged workers. Many have exhausted their benefits.
Let's take a look at the economic policies of the past two
administrations. Let's look at what the first Bush and the Clinton
administration decided to do when this country faced an economic
downturn in the early 1990s. They decided that we should create a
federal program for unemployment benefits to help people until they
could get back to work.
I have numbers of e-mails and letters from constituents in my State
and other parts of the country. These constituents say that they have
sent resumes to hundreds of companies and maybe only had two or three
interviews. When they go to those interviews, they are competing with
people who are three and four times more qualified for the job. These
overly qualified people are willing to take that job because it is the
only job that is out there. Thereby those individuals who are
themselves qualified but not overqualified are left without employment.
Let's compare the number of jobs that were created in the last
recovery and this one. The bottom line is that in 1992 we started to
see a recovery in jobs. In April of that year the economy started to
create about 150,000 jobs per month. But, even so, we kept the Federal
program going for 22 more months. In February of 1993, we finally
closed the jobs deficit, and yet, we continued the program until 2.9
million new jobs had been created, above and beyond the jobs deficit.
In the current recovery, we are simply not seeing that kind of
growth. Last month, just 112,000 jobs were created. And yet, everybody
is ready to say that 112,000 jobs signals our great return. We need to
take a lesson from history: In the 1990s, when the economy started
creating about 150,000 jobs, we continued the program for almost 2 more
years. We certainly didn't cut it off as we did in December of 2003.
In April of 1992, that administration was not heartless as to the
plight of Americans being out of work. That administration recognized
that even though the economy is starting to recover, it hadn't fully
recovered. Under that Republican administration, they said let's go
ahead and keep the Federal employment program going. So they extended
it for another 22 months.
In February 1993, when we basically had broke even for the jobs that
had been lost, the Federal unemployment extension program was still
extended another year.
The past recession provided good economic evidence that extending
unemployment benefits at the Federal level not only helped bridge the
gap between the end of State benefits and finding a new job.
It also provided economic stimulus. For every dollar spent on
unemployment benefits, it generates $2 of stimulus to the economy. We
found out in the 1990s that was a good economic plan, and two
administrations, a Republican administration, the first George Bush,
and a Democratic administration, Bill Clinton, found that this was
great economic policy for our country.
Yet today, the administration is simply being heartless. Somehow,
even though the President has backpedaled on his own economic plan for
the year and said he doesn't support the job growth projections--
somehow even though we have created only a minuscule number of jobs,
112,000 in January, the administration doesn't want to continue this
program.
I find that amazing. What else I find amazing is that even though we
have $17 billion in the UI trust fund--$17 billion that does not have
to be found, that does not have to be taken from another program; $17
billion that has been paid for by employers and employees, and is, in
fact, designed to take care of employees during economic downturns--
we're not going to extend the program.
As the program has been designed, it says these people can be
eligible for
[[Page S1556]]
Federal temporary assistance for 13 weeks and, if they are in a very
high unemployment State, an additional 13 weeks. I want to point out
that in the 1990s, not only did they extend that program for 27 months,
much longer than we did in the current program, the program was also a
richer program. The program was richer in that you actually had twice
as many weeks of benefits.
So the current program has fewer weeks of benefits, and it hasn't
been in place for as long--it only lasted 22 months.
I think people across America are getting the message. I know they
are in Washington State. They were so disappointed when the Cabinet
Secretaries showed up in town and said they wanted to do something
about the hard economic times, and yet refused to meet with laid-off
workers. Then the Secretaries Snow and Evans refused to back the
President's jobs projections. Laid-off workers in my state said: If you
guys do not believe in the economic numbers, we can tell you firsthand
we do not believe in them because we have been on job interview after
job interview and have sent resumes and the jobs are just not there.
As the Seattle P.I. wrote in an editorial, everything is not fine in
the job market. They clearly point out that we have a responsibility,
and the one thing to do to alleviate the pain is to extend Federal
unemployment benefits. I ask unanimous consent to print that editorial
in the Record.
Everything Is Not Fine in the Job Market
Helping unemployed workers is the one thing the Bush
administration could still do about the lousy jobs
environment.
Three-fourths of the way through his term, President Bush
is pretending that everything is fine for workers. The
administration has shown no interest in extending federal
emergency unemployment assistance for workers whose benefits
are expiring.
The country has lost 2.3 million jobs. The recovery is
pushing up CEOs' pay, ironically, in part because they are
helping stock prices by holding down hiring. And the layoffs
continue.
Boeing said Friday it might cut 50 workers in Everett. The
sale of AT&T Wireless Services will spark thousands of
layoffs. Yesterday, Sen. Maria Cantwell, D-Wash., visited
workers and managers of a Seattle warehouse where the staff
was laid off and the building put up for sale.
As Cantwell notes, there are far more unemployed workers
than new jobs. For good reason, the White House has
jettisoned its own prediction of 2.6 million new jobs this
year.
The fury over outsourcing of jobs is much overstated, but
it is fed by the weak economy. The export of some jobs
underscores the need for helping unemployed workers through a
transitional time until more jobs are created. The one way to
alleviate the pain quickly is to extend federal unemployment
benefits.
Ms. CANTWELL. Mr. President, the Minneapolis Star Tribune wrote:
At this sluggish pace, it will take the nation four years
to recover the jobs it lost in nine months during the
recession of 2001.
So there are people saying obviously it is going to take us a while
to recover.
The L.A. Times recently wrote:
More than 2 million jobs have been lost in the last three
years. . . . Even in the best-case scenario, Bush will end
this term with a net job loss. That hasn't happened to a
president since Herbert Hoover at the beginning of the
Depression.
Mr. President, I ask unanimous consent to have these articles printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Star Tribune, Minneapolis, MN, Feb. 10, 2004]
Jobless; Benefits Are Running Out
To a casual reader, the government employment report
released on Friday shows an economic recovery finally taking
hold. Payrolls expanded for the fifth consecutive month, and
the unemployment rate fell slightly to 5.6 percent.
To Americans who are standing in the unemployment line,
however, the January data reveal a recovery that remains
woefully inadequate. If President Bush really cares about the
nation's unemployed, as he said Sunday, he will endorse
congressional efforts to enact a badly needed extension of
federal unemployment benefits.
The January jobs report was encouraged in the context of
the current recovery, but it was pathetic in the context of
history. Since the labor market hit bottom last summer,
employers have been adding about 73,000 jobs per month. That
compares with 216,000 jobs per month during the economic
expansion of the early 1990s, and much larger monthly gains
in recoveries before that. At this sluggish pace, it will
take the nation four years to recover the jobs it lost in
nine months during the recession 2001. There is simply no
modern precedent for a jobless recovery of this duration.
The slow pace of hiring is taking a terrible toll on those
in the unemployment line. Nearly one-fourth of the nation's
8.3 million jobless workers have now been out of work for six
months or longer. As of December, nearly 400,000 workers are
exhausting their unemployment benefits every month, according
to the Center on Budget and Policy Priorities in Washington,
D.C.
(A different Labor Department measure, known as the
household survey, has been showing much stronger job creation
in recent months. But the department said Friday, as it has
for years, that it considers the household survey less
accurate than the payroll survey that is showing tepid
growth. And even by the household survey, the current
expansion is much slower than its predecessors.)
Bush says that in light of the large budget deficit, he
wants to contain federal spending, and we sympathize. But the
modest cost of extending unemployment benefits would
disappear as soon as the job market truly recovers, unlike
the much larger tax cuts that the president continues to
propose.
Lawmakers dragged their feet on this question all last
fall, arguing that a jobs recovery was just around the
corner. Last week a majority in the House finally recognized
its error and voted to extend benefits. The Senate and the
White House should concur.
____
[From the Los Angeles Times, Dec. 29, 2003]
Jobless Count Skips Millions
(By David Streitfeld)
San Francisco.--Lisa Gluskin has had a tough three years.
She works almost as hard as she did during the dot-com boom,
for about 20% of the income.
When Gluskin's writing and editing business cratered in
2001, she slashed her rates, began studying for a graduate
degree and started teaching part time at a Lake Tahoe
community college for a meager wage.
It's been a fragmented, hand-to-mouth life, one that she
sees mirrored by friends and colleagues who are waiting
tables or delivering packages. In the late `90s, the 35-year-
old Gluskin says, ``we had careers. We had trajectories. Now
we have complicated lives. We're not unemployed, but we're
underemployed.''
The nation's official jobless rate is 5.9%, a relatively
benign level by historical standards. But economists say that
figure paints only a partial--and artificially rosy--picture
of the labor market.
To begin with, there are the 8.7 million unemployed,
defined as those without a job who are actively looking for
work. But lurking behind that group are 4.9 million part-time
workers such as Gluskin who say they would rather be working
full time--the highest number in a decade.
There are also the 1.5 million people who want a job but
didn't look for one in the last month. Nearly a third of this
group say they stopped the search because they were too
depressed about the prospect of finding anything. Officially
termed ``discouraged,'' their number has surged 20% in a
year.
Add these three groups together and the jobless total for
the U.S. hits 9.7%, up from 9.4% a year ago.
No wonder the Democratic Presidential candidates have
seized on jobs as a potentially powerful weapon.
Howard Dean criticized President Bush for ``the worst job
creation record in over 60 years.'' Richard Gephardt said
that ``I have three goals for my presidency: jobs, jobs,
jobs.'' John Kerry said ``the first thing'' he'd do as
president would be to fight his ``heart out'' to bring back
the jobs that have disappeared in recent years.
Bush, meanwhile, is quick to seize credit where he can.
When the unemployment rate for November fell one-tenth of a
point, he went out immediately to give a speech at a Home
Depot in Maryland.
``More workers are going to work, over 380,000 have joined
the workforce in the last couple of months,'' Bush said.
``We've overcome a lot.''
A number of economists say it's a mistake to evaluate the
job market solely by talking about the official unemployment
rate. It's a blunt instrument for assessing a condition that
is growing ever more vague.
``There's certainly an arbitrariness to the official
rate,'' says Princeton University economics professor Alan
Krueger. ``It irks me that it's not put in proper
perspective.''
On Jan. 9, when the rate for December is announced, both
Republicans and Democrats will assuredly again maneuver for
advantage--precisely because the number isn't expected to
change much.
``At this point, where we don't know which way it's going
but it isn't likely to be going far, both sides will try to
use it,'' says Michael Lewis-Beck, a political scientist at
the University of Iowa.
In every election since 1960, the party in the White House
lost when the unemployment rate deteriorated during the first
half of the year. If the rate improved, the party in the
White House won.
That's not a coincidence, says Lewis-Beck, who has edited
several volumes on how economic conditions determine
elections. ``People see the President as the chief executive
of the economy,'' he says. ``They punish him if things are
deteriorating and reward him if things are improving.''
By any normal standard, things should have been improving
on the employment front long before this point. More than 2
million jobs have been lost in the last three
[[Page S1557]]
years, a period that encompassed a brief, nasty recession and
a recovery that was anemic until recently. Even in the best-
case scenario, Bush will end this term with a net job loss.
That hasn't happened to a president since Herbert Hoover at
the beginning of the Depression.
Many economists are mystified about why a suddenly booming
economy is producing so few jobs.
``We're all sitting there and saying, `When are they going
to return?' '' says Richard B. Freeman, director of the labor
studies program at the National Bureau of Economic Research.
``It's looking a little better, but we don't understand why
it isn't looking a lot better. Why shouldn't Bush be sitting
there saying, `Man, I'm sitting pretty. This is a great
boom'?''
One statistic proving particularly perplexing is the
percentage of the adult population that is employed. this
number rises during good times, as people are lured into the
workforce, and falls during recessions as companies falter.
True to from, the percentage of adult Americans with jobs
dropped from a high of 64.8% in April 2000, just as the stock
market was cresting, to 62% in September--the lowest level in
a decade. If past recessions are any guide, those 5 million
people who found themselves jobless should have driven the
unemployment rate up to about 8%.
Instead, the rate never went much above 6%
More than half of the additional people who would have
reported themselves as unemployed in a previous big
recessionary period . . . aren't,'' a puzzled UC Berkely
economist, Brad DeLong, wrote on his website. ``They're
reporting themselves as out of the labor force instead.''
``Out of the labor force'' means you're not working for
even one hour a week and don't want to, either. It's the
traditional category for students, married women with young
children, flush retirees and idle millionaires.
A new way that people seem to be joining this category is
by getting themselves declared disabled. This designation
makes them eligible for government payments while removing
them from the unemployment rolls.
From 1983 to 2000, economists David Autor and Mark Duggan
wrote in a recent study, the number of non-elderly adults
receiving government disability payment doubled from 3.8
million to 7.7 million.
The scholars present a case that the sharp increase isn't
because the workplace suddenly became more dangerous.
Instead, it has been prompted by liberalized screening
policies, which make it possible to claim disabled status
for, say, several small impairments as opposed to one big
injury. Government examinations also have been downplayed in
favor of the disabled's own medical records and the pain he
or she claims to be experiencing.
At the same time, benefits have been sweetened. As a
result, millions of individuals who lost jobs now have an
attractive--and permanent--alternative to searching for work.
Autor and Duggan concluded that if disability payments
weren't so appealing, many more people would be unemployed,
boosting the jobless rate two-thirds of a point.
Another way in which people forgo an appearance on the
unemployment rolls is if they decide to go into business for
themselves. There are 9.6 million people who say they are
self-employed full time, a number that rose 118,000 last
month. Without the recent increase in self-employed, the
jobless number would look much worse.
Many others may be working for themselves part time,
temporarily, as a way to get food on the table in the absence
of better options.
Take Steve Fahringer, who until recently was working for a
Bay Area marketing agency that cut 20% of its employees and
trimmed the wages of the remainder by 20%. Fahringer didn't
particularly like his job. Because the recession supposedly
was history, he thought he could find a new position. The 34-
year-old didn't think it would be easy, but he thought it
possible. So he quit.
``I left July 1,'' he says. ``I haven't found a new job
yet.''
It's a common problem. The segment of the labor force that
has been jobless for more than 15 weeks has risen nearly 150%
since 2000. The current level is the highest since the
recession of the early 1990s. Nearly one-quarter of the
jobless have been unemployed for longer than six months.
In Fahringer's case, he spent some time aggressively
looking for a job, which made him part of the official July
unemployment rate of 6.2%. Then he stopped looking, which
meant that he was one small reason the rate started going
down.
Instead of unemployed, Fahringer was classified as
``discouraged.'' A little more than 8% of the people who want
a job in the Bay Area are estimated by the Bureau of Labor
Statistics to be discouraged, slightly higher than Los
Angeles/Long Beach but lower than the battered technology
center of San Jose.
Discouraged workers have never been included in
unemployment rates, although they came close the last time a
commission met to reform the system, a quarter of a century
ago. ``It was a very hot issue,'' remembers Glen Cain, a
retired economist who was a commission member. He says the
conservatives on the panel, who felt that anyone who really
wanted a job should be out there hustling no matter what,
prevailed.
Fahringer found an alternative way to earn a bit of money.
He did some acrylic paintings, which he sold for a total of
$1,000. He calls himself ``a hobbyist,'' which means for a
while he moved out of the labor force entirely.
Now he's a temp, assigned by his agency to a nonprofit
office. For the first time in six months, he's working 40
hours a week. By the government's accounting, he has once
again joined the ranks of the employed. But from the
standpoint of his wallet, Fahringer is worse off: He's
earning less money, with no paid holidays, no sick leave, no
pension plan, no health insurance, no future.
The Economic Policy Institute, a liberal-leaning Washington
think tank, says Fahringer's situation is in many ways
typical. The industries that were expanding in the late '90s,
including computer and professional services, paid well.
Those industries are in retreat. So is manufacturing, a
traditional source of high wages. On the rise, meanwhile, are
lower-paying service jobs.
During the boom, it was easy to trade up. Now it's just as
easy to trade down.
Fahringer's solution: Opt out.
``I'm thinking of going back to school,'' he says. ``I'd
take out a loan.'' That would put him out of the labor force
again.
In some eyes, a nation of burger flippers, temps and Wal-
Mart clerks isn't the worse scenario for the economy. The
worse is that companies continue to eliminate jobs faster
than they create them, setting up a game of musical chairs
for the labor force.
That prospect alarms Erica Groshen, an economist with the
Federal Reserve Bank of New York. ``If you plot job losses
versus gains on a chart, it's shocking,'' she says.
Losses are running at about the same rate they were in 1997
and 1998, two good years for the economy. But job creation in
the first quarter of 2003--the most recent period available--
was only 7.4 million, the lowest since 1993.
``If this goes on too long, you'd have to worry there's
something fundamentally wrong,'' Groshen says. Although the
economy has picked up since March, ``so far I haven't seen
anything that suggests job creation is picking up.''
That bodes poorly for Ian Golder. His last full-time job
was with a start-up publication that wrote about venture
capital.
Two years ago, Golder was laid off. It was the first time
since he graduated from UC Berkeley 14 years earlier that he
didn't have steady work.
Golder looked for a while, gave up for a while, then landed
a contracting gig with no benefits proofreading for a chip
maker. When that ran out, he worked 20 hours a month on a
financial services newsletter.
His wife, Heather, a recent graduate in English from UC
Davis, also was without a job. They thought about selling
their house in Sacramento and moving, but prospects didn't
look any better anywhere else. To make ends meet, they took
in two boarders.
At the beginning of December, things seemed to improve a
bit. Golder got a job in the document-control department of a
medical devices company. The department, he was told used to
have 20 full-time people. Now it has five, plus four temps.
The job will last two months. After that, who knows?
Optimists say things will be better then,'' Golder says.
``But a full-time position with benefits seems pretty
remote.''
Ms. CANTWELL. Mr. President, the point is, this administration and
the other side of the aisle need to look at economic history when we
have faced similar downturns and discuss what is the best way to
alleviate this pain as we see our economy barely start to chug along.
We have heard a lot about outsourcing in the last week or two. I am
sure we have not heard the last of it. There are a lot of people who
are concerned that we may never see that job growth that was even
initially predicted in the President's economic report of which it has
now backed off. So America has a very uncertain time ahead, but
Americans know they have a program at the Federal level to which they
are being denied access.
What are the consequences? My colleagues need to read their e-mails.
They need to read letters from their constituents. I read mine. When
you know that money is there to help and assist them, when you know an
economic plan and responsibility for our fiscal policy is something we
should be concerned with every day, it just breaks your heart to
understand the plight some of these people are going through.
One laid-off worker from Camano Island said he cashed out every dime
of his 401(k) savings plan with significant penalty. He doesn't know
how he is going to make the mortgage payments, he is at such a
desperate point. He is trying to figure out any way he can just to keep
the lights on and keep food on the table.
Another constituent wrote to me from Bothell, WA:
I had to resort to selling my 20-year-old naval sword for
grocery money. As a naval veteran, I can tell you that hurt a
lot to do.
[[Page S1558]]
A constituent from Steilacoom, WA, who has been unemployed and his
wife worked at $17 an hour for a phone company and she was laid off,
too, writes that they had to borrow from friends just to keep their
kids in the house and make their house payment.
Washingtonians are having a very hard time. I bet many Americans
across this country are having a hard time. That is because we are not
living up to our responsibility to pass this temporary unemployment
benefit extension. We had this debate in December of 2003, and a lot of
rankling about it, and we came back in January and ultimately did the
right thing.
In December of this year, when the program expired again, we came
back and everybody wanted to sing how the economy was getting better.
Now the administration will not stand by its own numbers of whether the
economy is really getting better or not.
The House of Representatives, albeit a difficult task, actually got
an amendment on a different bill and actually passed an extension of
unemployment benefits. They had the votes to, in a bipartisan way, pass
the unemployment benefit extension, but we have not had the courage to
do so.
My colleagues on the other side of the aisle need to stand up and say
that unemployment benefits are a priority and that they are a good way
to deal with this economic situation, and that while we have curtailed
this program at a much shorter time period when we have not had
positive job growth--we are still in the negative numbers--this has
been premature and that the smart thing to do now is, as the economy is
barely starting to respond, the most prudent thing to do to stimulate
the economy is not to take more money out of it. That is exactly what
we are doing. We are taking more money out when we do not help provide
the stimulus that unemployment benefits provide.
So I think this is the best investment we could be making. My
colleagues need to realize it is heartless to leave these Americans out
in the cold without either a paycheck or an unemployment check.
In the 1990s recession, even when there had been the start of job
growth, the program was extended for 22 months. And even when we had
recovered all the jobs that were lost and the economy had started to
positive growth, this program was extended another year. So we are
being very shortsighted. While we have lots of legislation to discuss,
various issues about liability, we are saddling the American public
with the biggest liability yet, and that is a bad economy and no help
on unemployment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Mr. President, I have today asked my colleagues to
support the Protection of Lawful Commerce in Arms Act. This important
legislation has strong support from both sides of the aisle with more
than 50 cosponsors on the original bill, S. 659. I am proud to be an
original cosponsor of the bill. I thank my dear friend and colleague
from Idaho, Senator Larry Craig, for his leadership. He has done
yeoman's work on this bill in the drafting, introduction, and
shepherding of this bill as it passes on the Senate floor.
The legislation in question will correct a significant injustice that
threatens the viability of a lawful United States industry, the
firearms industry. An increasing number of lawsuits are being filed
against the firearms industry seeking damages for wrongs committed by
not them but by third persons who misuse the industry's products.
These lawsuits seek to impose liability on lawful businesses for the
actions of people the industry has absolutely no control over. When one
stops to think about it, it is really outrageous. Businesses that
comply with all applicable Federal and State laws and that produce a
product fit for an intended lawful purpose, including elk and duck
hunting, target shooting and personal protection, should not be subject
to frivolous lawsuits that have only one goal; that is, to put them out
of business. It is an outrage.
Montanans particularly are proud of their independence and their
outdoor heritage. We are an outdoor people. People in our State, as in
the State of the occupant of the Chair, almost honor and cherish the
outdoors. We spend so much of our time outdoors. Almost every Montanan
regards himself or herself as an outdoorsperson. Hunting, fishing,
hiking, even one's job, whether it is raising cattle, growing wheat,
grain, the mining industry, forest products--we are outdoors people. We
cherish our right to hunt. We cherish our right to fish and enjoy the
outdoors. Passing this bill will allow us to protect that right by
ensuring the firearms industry stays in business.
Gun owners and sportsmen are an important part of our Nation's
economy. Each year they spend nearly $21 billion in our national
economy. This in turn generates more than 366,000 jobs. Those jobs pay
more than $8.8 billion in wages and salaries. That is no small item,
particularly these days when we are trying to get as many jobs in our
country, particularly good-paying jobs. The industry also provides
about $1.2 billion in State tax revenues.
In addition, excise taxes imposed on firearms in the Federal Aid to
Wildlife Restoration Act, otherwise known as the Pittman-Robertson Act,
generate revenues for State fish and wildlife conservation efforts, and
also hunter safety programs. For example, the Pittman-Robertson Act
generated more than $150 million in revenue in the year 2002 alone.
In short, the U.S. firearms industry serves America's gun owners and
sportsmen well. It provides good-paying jobs. It provides revenues that
benefit all Americans. The industry should not be penalized for legally
producing or selling a product that functions as designed and intended,
but that is exactly what certain groups are trying to do--asking the
courts to step in and micromanage the firearms industry when the
Congress and most State legislatures have refused to do so.
Let me now list some of the demands that have been made in these
lawsuits so we can get a flavor and a picture of just how incredible
these lawsuits are. Some would require a one-gun-a-month purchase
restriction not required by a State law. That is a one-gun-a-month
restriction. Other of these suits would require firearm manufacturers
and distributors to participate in a court-ordered study of lawful
demand for firearms and, get this, cease sales in excess of lawful
demand.
Another request is to require a prohibition on sales to dealers who
do not stock at least $250,000 in inventory. And here is still another:
require systematic monitoring of dealers' practices by manufacturers
and distributors.
These are just a few of the sweeping demands made in the lawsuits the
Protection of Lawful Commerce in Arms Act seeks to stop. As my
colleagues can tell, these suits are asking courts to step well outside
their jurisdiction and legislate regulation of the firearms industry.
They also have nothing to do with holding accountable those who
actually misuse firearms or commit crimes with firearms.
Most courts have dismissed such lawsuits. Some courts have expressed
sentiments similar to those of a New York appellate court judge who
stated:
The plain fact is that courts are the least suited, least
equipped and thus the least appropriate branch of government
to regulate and micromanage the manufacturing, marketing,
distribution and sale of handguns.
However, the time, expense, and effort that goes into defending those
nuisance suits is a significant drain on the firearms industry costing
jobs and millions of dollars, increasing business and operating costs
and threatening to put a good number of dealers and manufacturers out
of business. That is why this bill is so necessary.
Let me be clear about a couple of points, though. This bill will not
bar legitimate suits against the firearms industry. It preserves the
right of Americans to have their day in court. For example, this bill
will not require dismissal of a lawsuit if a member of the industry
breaks the law; if a member of the industry acts negligently in
supplying a firearm to a person they should have known is likely to
misuse that firearm. In addition, it does not require dismissal of a
lawsuit if a member of the industry supplies a firearm to someone they
had reason to know was barred by Federal law from owning a firearm or
designed a defective firearm. So there are safeguards in this bill.
[[Page S1559]]
This bill is only intended to protect law-abiding members of the
firearm industry from nuisance suits that have no basis in current law,
and again are only intended to regulate the industry, harass the
industry, or put it out of business, none of which are appropriate
purposes of a lawsuit. That is what this legislation is intended to
deal with.
We can all agree when a firearm is used in a criminal or careless
manner that causes serious injury, such as the loss of life, this is a
terrible tragedy. Those responsible for such tragedies should be held
accountable, clearly, and held accountable to the fullest extent of the
law in both civil and criminal actions.
This includes the firearms industry, obviously, when or if one of its
members breaks the law or gives a firearm to a criminal or other person
they knew would use the firearm to hurt, kill, or threaten another
person.
The Protection of Lawful Commerce in Arms Act would do nothing to
change this or shield the firearms industry from liability or criminal
or other wrongdoing. At the same time, it is not fair and it is not
right to hold lawful members of the industry, who produce a legal
product, accountable for the independent actions of third parties who
use a firearm in the manner the industry never intended.
This is a very simple bill. It has a simple purpose. It is also
critically important to a very vital industry and I ask my colleagues
to give it their full support.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CRAIG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, again, I remind our colleagues that we are
in a postcloture environment. What does that mean? It means we could
actually debate the broad issue of the bill for upwards of 30 hours
before we actually get to the bill, even though 75 of us have said
let's move on, let's get to this legislation, debate it, offer
amendments, and bring it to final passage.
My colleague from Montana is leaving. I thank him for his statement
of the work he has done in behalf of gun owners and manufacturers and
law-abiding gun dealers. I thank him for being an original cosponsor
and working with me to get S. 1805 to the floor.
I thought what I might do for a few moments, while we are waiting for
leadership on both sides of the aisle to see if we can't find an
agreement on how to proceed to this legislation, is to deal with some
finer points that are involved in the legislation. My guess is, over
the course of this week and probably the next week, you are going to
hear a great deal said about the bill--11 pages, a relatively small
bill--and what it does or does not do.
S. 1805 has basically two substantive provisions. First, section 3(a)
states that:
A qualified civil liability action may not be brought in a
Federal or State court.
A qualified action may not be brought.
Second, section 3(b) orders the immediate dismissal of a qualified
civil liability action pending on the date of enactment of S. 1805. The
key to S. 1805, therefore, is the definition of ``qualified civil
liability action.'' That is what most of our colleagues, I hope, would
focus on, even though the issue spirals around the use of a gun and
that brings about substantial heated debate and political decisions.
Key in S. 1805, again, is the definition of a civil liability action
which is addressed in the definition section, then, in section 4(5). A
qualified civil liability action is defined as a lawsuit:
. . . brought by any person against a manufacturer or
seller of a qualified product, or a trade association, for
damages resulting from the criminal or unlawful misuse of a
qualified product by the person or a third party. . . .
Subsection (5), the definition, then excludes five categories of
lawsuits from coverage under S. 1805:
First:
(i) an action brought against a transferor convicted under
section 924(h) of title 18, United States Code, or a
comparable or identical State felony law, by a party directly
harmed by the conduct of which the transferee is so
convicted.
In other words, we don't exempt that. We exclude these categories
from that definition so you can still go to court, you can still gain
redress from that.
The second one is:
(ii) an action brought against a seller for negligent
entrustment or negligence per se.
Negligent entrustment is defined:
. . . the supplying of a qualified product by a seller for
use by another person when the seller knows, or should know,
the person to whom the product supplied is likely to, or
does, use the product in a manner involving unreasonable
risk of physical injury to the person or others.
In other words, if the seller knows that this is going to be used for
criminal intent or for misuse, then of course that provision is exempt
from the protection under 1806.
Third:
(iii) an action in which a manufacturer or seller of a
qualified product [knowingly and willfully] violated a State
or Federal statute applicable to the sale or marketing of the
product, and the violation was a proximate cause of the harm
for which the relief is sought. . . .
Again, the courthouse door is open to that.
(iv) an action for breach of contract or warranty in
connection with the purchase of the product.
That is available.
(v) an action for physical injuries or property damage
resulting directly from a defect in design or manufacture of
the product, when used as intended or in a manner that is
reasonably foreseeable.
Those are really the key points here that we do not in any way
exempt. What we are doing in S. 1805 is very simple. We are trying to
reinforce centuries of legal precedent, based on individual
responsibilities, not responsible for actions of third parties. In
other words, once again the trial bar is trying to suggest that a
criminal act is the responsibility of the person who manufactured the
product that the criminal may use in that act. We have never allowed
that to stand in our courts, and now we are trying to assure that a
very small industry in this country can be protected from the kinds of
frivolous lawsuits filed that are draining them of their very
livelihood.
Earlier this afternoon I talked about the hundreds of jobs that have
been lost. Some scoffed and said, ``This is a jobs bill?''
You bet it is a jobs bill. If you destroy that industry, thousands of
high-paying jobs will be lost across the United States in an industry
that is legal, that is law abiding, that one might argue is even
enshrined in the Constitution under the second amendment. That is why
we are here today.
Is it important? You bet it is important. Is it a part of what our
Senate ought to be debating? Absolutely.
If we are able to do this, we establish extremely important precedent
that other manufacturers of law-abiding products will look at, and
should look at. Why should the trial bar be allowed to suggest that the
maker of a Chevrolet, Ford, Dodge, or Toyota pickup used by a drunk
driver that ended up killing someone be responsible for it? Because
they manufactured it? Since when is this country going to exempt the
actions of the individual and say, Oh, no, it really wasn't his fault;
it was the fault of the vehicle. It was the fault of an inanimate
object known as a gun.
That is the issue today and it really is fundamental. You hear a
great many arguments. One of them is that we are locking the courthouse
door. No, all those principles I talked about are exempt and can be
tried and can be argued before the courts. Even in S. 1805, somebody
who by definition brings a junk lawsuit gets to argue the case before
the judge. They get through the courthouse door. The judge then
listens, applies the law, and makes a determination whether this is a
legitimate case that should go forward or it was an illegitimate case.
Will this bill affect several high profile cases such as the lawsuit
against a gun dealer in Tacoma, WA, from whose store the DC snipers,
John Muhammad and Lee Malvo, got their rifle? Does it exempt that
dealer if he acted unlawfully? We don't know that yet. We know that
BATF has investigated it and jerked his firearm license and the store
is now closed. We are told that BATF has asked the Justice Department
to file criminal charges against him.
But we do know one thing. We do know that Lee Malvo has admitted to
[[Page S1560]]
stealing the gun from that dealer. Therefore, there is a principle in
tort law that says that a manufacturer is not liable if the product
used, being his, was stolen before it was used. That we do know. And
now we have an admission by the person who pulled the trigger that the
Bushman rifle used in those tragic incidents here that kept this city
rivetted for a tremendous amount of time and took numerous lives was a
stolen weapon.
Having said all of that, the case is yet to be investigated. The
facts are yet to be truly known. Allegedly, guns went
missing. Allegedly, they were not reported.
If all of that is true, then the owner of this particular gun shop in
Tacoma, WA could well be liable and could well come under the criminal
laws of today, and S. 1805 would do nothing about that and shouldn't do
anything about that.
Once again, as I have already said numerous times today--and I am
sure I will repeat it over the course of a good number of days--this is
a very narrow approach. It is an important one.
Senator Daschle, the minority leader, and I joined in his amendment
embodied in S. 1805 to ensure that we refine it even more to make it
very clear exactly what and who might be exempt and for what reason. We
think we have so effectively narrowed it that it has met the broad
acceptance of our colleagues in the Senate.
I hope the cloture vote today is reflective of some of that
acceptance as we work and debate through this issue. I hope leadership
on both sides can get us to an agreement so we might proceed and get on
the bill and deal with some of the amendments at hand. I hope we can
defeat them. I would like a clean bill. The administration would like a
clean bill. There is ample time to debate other issues. There is ample
time to debate extension of the assault ban. I strongly oppose that.
That was legislation I called a political placebo at a time when
everybody wanted to try to do something, even though they knew it was
impossible to control the criminal element in this country unless you
got tough on crime. So we passed that legislation.
History shows the assault weapon ban did little to no good--except it
did one thing. It kept law-abiding citizens from buying certain types
of firearms even though our second amendment would suggest they have
the right to own them.
That is why I hope the assault weapon ban as it expires can be left
to its expiration. I hope we can defeat that.
The other issue, the gun show loophole: Is there a loophole in gun
shows?
Let me set the stage for that. I would like to compare a gun show and
an auto show. If you are a licensed car dealer or a licensed
manufacturer of automobiles--I don't know that you have to be licensed
to manufacture automobiles--then you can put all kinds of auto shows
together, and you can sell from those shows. You can demonstrate your
product. You can sell all kinds of things with no prohibition. In
Idaho, the only prohibition, if you sell more than five a year, is you
have to get a license to be an auto dealer. What we say in gun shows is
if you are a licensed gun dealer at a show, then you must comply with
all laws during that show in the sale of a firearm. But if you are an
individual who sells very few firearms but you might sell one to a
friend or someone else on occasion, and you sell at a gun show, or you
met a friend at a gun show and you tell him about a gun you have and
the transaction occurs, you don't have to comply with a background
check; You are not a licensed dealer.
Someone would suggest that is a loophole. I don't see that as a
loophole because outside of gun shows it is not considered one--only if
it is inside.
What this is all about is establishing a Federal regulation to
control gun shows. This will be a new entity of Federal control over
something that is clearly a free market process. Do we want Federal
regulations over the control of auto shows? Do we want Federal
regulations in control over new-clothing shows? No. That is the
marketplace at work. But if there are Federal laws that control these
different products and/or sale, then they comply. They comply inside
the show or outside the show. That is standard today.
What our colleagues are trying to do in suggesting there is a
loophole, which I believe I have suggested by demonstration of facts
does not exist, is to control the gun show, and to suggest if you are
an individual and you make a sale at a gun show, you then must do
background checks and all other due diligence you would not do if you
were outside the gun show, speaking neighbor to neighbor, friend to
friend, and were not viewed as a licensed dealer, or not a gun dealer
in any way.
That is the reality of what we are talking about. Those are some of
the amendments we will have which we will be dealing with on the floor.
I hope as we deal with those, we might deal with others such as
concealed carry. We might look at the gun ban of Washington, DC, where
law-abiding citizens cannot legitimately own firearms, and a variety of
other issues.
The President asked--and I would like to honor that because I believe
strongly in it, too--that we produce a clean bill just exactly like the
House did on a better than 2-to-1 margin--285 to 140--that we produce a
clean bill and get it to the President's desk; wipe out these frivolous
lawsuits but still allow law-abiding citizens who might be injured by
illegal action of a gun dealer or illegal action of a gun manufacturer
their day in court without the kind of frivolous and/or junk lawsuits--
the kind that are costing the industry millions upon millions of
dollars right now and slowly but surely diminishing them.
Lastly, if we are not successful and if the trial bar is at some day
and at some point successful, my guess is this relatively small
industry in our country will not be here. What happens when we no
longer produce high-quality firearms in this country for our military
or for our police? Do we rely on China or Yugoslavia or Hungary or some
other foreign country to produce the firearms our men and women in Iraq
use to defend themselves and to enforce the law? Do we put them at
risk? Do we say to our good law enforcement officers, You are going to
have a foreign firearm on your hip and it will not be produced by a
legitimate company in this country as a part of our national protection
and our freedoms and rights?
That is ultimately what could happen because already we have seen
these industries go out of business because of the risk of doing
business and the liability involved based on these types of lawsuits we
are now trying to shape and limit. That is the essence of S. 1805.
I hope we can soon move to the bill and begin debating it in its
entirety, and certainly any amendments that would then come forward,
debate those, get an up-or-down vote and move toward final passage.
With that, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REED. I ask unanimous consent the call of the quorum be
rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REED. Mr. President, this legislation before the Senate has been
described as necessary for the gun industry. It is nothing at all like
that. There is no crisis with respect to lawsuits aimed against the gun
industry.
This legislation, though, poses a very serious risk to the rights of
an individual citizen who is a victim of gun violence to go to a court
of law in the United States and to simply ask on the facts whether the
conduct of the individual gun dealer and the manufacturer represents
the standard of care that is expected of every individual and
corporation in this country. That is very simply what we think is
inherent in our rights as citizens. This law will strike at those
rights on behalf of a powerful and influential industry, in this case
the gun industry.
There has been some suggestion we are trying to protect the courts
from third party lawsuits when, in fact, the reality is these actions
are based on the actions of the manufacturers and the dealers, not the
actions of someone with a gun. This is based upon the standard of care
of the manufacturer and the dealer, not what an individual may or may
not have done with a firearm. These are not third party lawsuits. These
are lawsuits brought by victims, Americans who have suffered themselves
personally or suffered through the death or injury of their
[[Page S1561]]
family members. They are going to court and they are simply saying
these manufacturers or these gun dealers have violated their duty to be
reasonable, their duty to be prudent, the duty of every individual who
lives in an organized society to behave in a way that does not
unnecessarily bring harm to others. That is the essence of our law.
This legislation turns all of that on its head and says for a very
special class, the gun lobby, the rules of the game do not apply. And
if there is a citizen who seeks redress, then do not go to the courts
of the United States.
They tried to make the point that this does not close the door on the
courthouses of America. No, this bill goes much further. It takes
individuals who already have cases in courts and throws them out the
door. Page 5 of the bill:
DISMISSAL OF PENDING ACTIONS.--a qualified civil liability
action that is pending on the date of enactment of this Act
shall be immediately dismissed by the court in which the
action was brought.
Not shall be considered in light of this legislation and the judge
may make a determination that the suit can go forward, immediately
dismissed.
That is not just shutting the court door; that is evicting the
plaintiffs from the court, through the door. That is just one aspect of
the legislation.
There is a discussion, too, about exemptions, talk about knowing that
if a gun dealer or manufacturer knowingly does something, of course,
they might be liable. That is a criminal element because in our
criminal law we do not choose to punish people who unwittingly or
unknowingly do something. There has to be, in most cases, some intent,
some knowledge. Otherwise, the criminal law is absolutely arbitrary. It
captures people simply for making a mistake. That is the criminal side.
What we are talking about here is civil jurisprudence, the ability of
an individual to go to court to get damages for harm against that
person. That is not a criminal case; that is a civil case. That is not
enforcing the criminal laws of the Nation which rest upon knowledge and
intent; that is seeking redress based upon the standard of conduct, the
obligation to care, to exercise an appropriate degree of care.
The opponents of this bill are bringing those two issues together,
confusing and mixing them up. But there is no confusion about this
bill. It takes away the civil rights of an individual to go to court
and a judge and jury to decide whether the individual, the defendant,
has harmed them through negligence, through their inability to actually
conform to a recognized standard of care. It is an extraordinary
assault on basic legal rights.
I find it amazing that at this time when there are so many problems
facing this country, we are looking at legislation that is not just so
overwhelmingly slanted to a particular special interest but one that
disregards these basic rights that we all take for granted.
There is also a suggestion in this legislation that there is a crisis
because of these suits that are driving the gun manufacturers out of
business. That is not what the gun manufacturers are telling their
shareholders. That is not what they are telling the Securities and
Exchange Commission under the penalty of perjury. This is an excerpt
from the April 30, 2001, report of Smith & Wesson:
In the opinion of management, after consultation with
special counsel, it is not probable and it is unlikely that
the outcome of these claims will have a material adverse
effect on the result of operations or the financial condition
of the company as management believes it has provided
adequate reserve.
Under the penalty of perjury, the industry is telling the SEC and the
shareholders, do not worry; these are not material claims. This is
nothing that is going to put us out of business. This is nothing that
is going to bankrupt us. Buy our stock. We are a good deal.
But here people seem to be suggesting that they are on the verge of
collapse because these lawsuits are creating so much liability for the
companies that they cannot bear it. I tend to believe their own
statements in their SEC filings. As a result, this is not a crisis with
respect to the gun industry in the United States. This is an industry
that is extremely well-heeled and very zealous in protecting their own
rights and interests.
In 1999, the National Shooting Sports Foundation, an industry group,
and others created the Hunting and Shooting Sports Heritage Fund. By
all accounts, this fund has raised as much as $100 million. They are
engaged in lobbying activities. They are engaged in promoting this
legislation. They are also engaged in ensuring that their internal
documents are protected from discovery by lodging them in a California
attorney's office. They are guarding, in a secretive way, their
activities. This is not the case of a poor victim of a sniper or an
aberrant gunman who does not have $100 million, who does not have a
large organization. They have one thing: Their right to go into court,
as every American citizen can do, and make a simple claim. If they have
been negligent, I have been harmed, they must compensate me for my
damages. This bill strikes that. It tears it out of our law.
Now, this is a situation where there is no financial threat of a
great magnitude to the industry. In fact, some of these suits do not
even talk about monetary damages. They are asking for injunctive
relief. I think it is interesting that in the other body they struck
out the ability to get even injunctive relief to change the practices
of these companies. So this is not about a financial crisis. This is
simply about providing remarkable, unprecedented protections for one
industry at the expense of the average person on the street.
Again, the suggestion that this is a situation that is required
because we have to protect the whole industry from these suits that
paint everyone the same way disregards the nature of our tort laws. You
have to allege specific facts against a specific individual or
personality or corporation--their actions. This is based upon their
conduct, not some type of blanket attack on the gun industry.
But if this law passes, we will limit the rights of American
citizens. We will disrupt and overturn our system of tort law, which
rests upon State action as well as Federal action. This will preempt
causes of action that are entirely recognized and permissible in many
State courts throughout the country. We will be disregarding the
States, their legal systems, their knowledge of local conditions. That
is another casualty of this legislation if it passes.
But this, ultimately, is not just about the niceties of tort law and
federalism and the financial impact on industries. This is about real
people.
I had occasion to meet one of these individuals when I met Denise
Johnson. Denise was the wife of the late Conrad Johnson. Conrad was a
busdriver and was the final victim of the Washington area snipers. The
snipers' Bushmaster assault rifle was one of more than 230 weapons that
disappeared from Bull's Eye Shooter Supply gun store in Washington
State.
Now, at a minimum, the gun store's very careless oversight of
firearms raises obvious questions of negligence and deserves to be
explored by the civil courts. The actions which the gun manufacturer
took in placing those weapons in the hands of Bulls Eye also are
appropriate for scrutiny in the courts. Yet Mrs. Johnson's case would
be thrown out by S. 1805.
Now, consider also the case of David Lemongello and Ken McGuire.
These are two young police officers from New Jersey, the city of
Orange. On January 12, 2001, they responded to a call, as police
officers do every day throughout our country. Every day they risk their
lives. What they encountered in a backyard was a gunman armed with a
weapon. They were both grievously wounded.
It turns out that this individual went into a store in West Virginia
with a straw purchaser--a woman without a criminal record--who
purchased 12 guns at one time--he was a felon--and then took those guns
and went off and became involved in these crimes, became involved in
the disposition of these weapons.
This individual seller in West Virginia failed to follow the
guidelines that even the trade association, the National Shooting
Sports Foundation, has. So here is the seller, who is not at all averse
to selling 12 firearms, in cash, to an individual, who walks in, who
refuses to buy them himself but has a younger person, a woman in this
case, make the purchase in name because of background checks, who
disregards the guidelines of the industry,
[[Page S1562]]
and yet this legislation would say that those two police officers, who
suffered grievously, cannot seek to be compensated by that dealer. It
defies common sense as well as our legal tradition.
Now, the manufacturer of those guns, Sturm, Ruger is a member of the
Shooting Sports Federation. I would assume they take great pride in
their advertisements and say: Look at the guidelines we have. Our sales
people have to be reasonable. They have to exercise great scrutiny,
good judgment, et cetera. Well, they do not really require that these
guidelines be followed, even though their organization promulgated
them.
Now, this case is in the courts of West Virginia. Judge Irene Berger
of Kanawha County, WV, looked at the case, looked at the law of West
Virginia, looked at the specific allegations against the dealers, and
said this case should go forward, there are no grounds for summary
dismissal. Yet this legislation, if passed, would summarily dismiss
that case. It would fall, I think, squarely under section 3(b):
A qualified civil liability action that is pending on the
date of enactment of this Act shall be immediately dismissed.
. . .
Judge Berger will not have a chance to evaluate whether this
legislation and the exemptions comply, not in any real sense, because
the presumption, of course, is that all these suits would be barred.
There are exceptions which she may consider, but, again, those
exceptions are so narrowly constructed that they provide little relief,
no practical relief.
Now, there is not just one case. There are multiple cases but not the
thousands that the industry would lead you to believe they would be
overwhelmed by--but a few cases, inconsequential in monetary effect for
the industry, as they stated, but of immense consequences to the
individual who has suffered financially, emotionally, personally, and
to that individual's family.
This is another case. This is Guzman v. Kahr Arms, in Worcester, MA.
Twenty-six-year-old Danny Guzman was fatally wounded with a 9 mm gun.
It was stolen from the gun manufacturer's plant by a drug addicted
employee who had a criminal record.
Stop and ask yourself: Does a gun manufacturer have a responsibility
to the community to ensure that its employees who have access to
firearms are not former felons or somehow at odds with the law or who
is not currently addicted to drugs? Isn't that the expectation that
everyone in that community and every community around the country has?
Well, of course.
Any sensible employer would ensure that an employee who has access to
firearms would have some type of check to ensure they are not drug
addicts or former felons.
They would be amazed if this legislation passed because, frankly,
what we are telling the Kahr Arms company is, no, hire anybody you want
because you will have no civil liability, none whatsoever.
Now, this company had rudimentary and ineffective controls for these
weapons. They had no metal detectors, security mirrors, none of these
things. Is that something the citizens of Worcester, the citizens of
Massachusetts, the citizens of America want?
That is common sense. These companies have to protect these weapons.
They have an arsenal. They manufacture weapons.
Apparently, that was not the case. It turns out the guns were taken
from the factory by felons they hired without conducting background
checks.
The gun used to kill Danny Guzman was one of several stolen by Kahr
Arms employees. This is not just one bad actor. And maybe that is the
defense: We are really pretty good. We just made one mistake. And they
were stolen before the serial numbers were etched into the weapons.
They could not be traced. What kind of company is this?
But what we are telling them, if we pass this legislation, is go
ahead, it is fine, no liability for that, do that every day, just one
of those things.
These guns were taken and resold to criminals in exchange for money
and drugs. Again, common sense suggests there has to be a civil right
to go in and challenge the negligence of this company. The loaded gun
that killed Mr. Guzman was found by a 4-year-old behind an apartment
building near the scene of the shooting, so the gun was apparently
tossed away and a 4-year-old found it. Mercifully, the child was not
injured.
This company could have done a score of things to prevent the death
of Danny Guzman: Screen their employees for felony convictions, screen
their employees for drugs, install safety cameras. What we are telling
them, if we pass this legislation, is you don't have to do any of those
things, because you can do anything you want and you will never be
liable in a court of law in the United States.
Will we tell that to the automobile manufacturers? Will we tell that
to other industries? Absolutely not. It defies and insults common
sense. But we are trying to do that today.
There is another suggestion that you are trying to punish a whole
industry because of a few bad apples. Like any industry, there are some
scrupulous dealers, and we hope it is the majority. In fact, it does
turn out to be the majority. But according to Federal data, 1.2 percent
of gun dealers account for 57 percent of all guns recovered in criminal
investigations. So obviously we have a problem with a small group of
dealers.
What are we telling those dealers today if we pass the legislation?
Don't worry; you can't be sued. Even if you represent the worst
possible dealers in the industry, even if you don't barely measure up
to the standards of every other dealer, you are OK, because the rules
of negligence don't apply.
This is something that confounds common sense--forget the niceties of
corporate law, of consumer protection law, of the tort system.
Most people believe that if you are in the business of manufacturing
and selling weapons, you have a very high standard of care, higher
perhaps than other industries, because you are dealing with a weapon
that has the potential to kill people, much more obviously and
explicitly than perhaps any other product manufactured.
What are we telling the industry? Forget that high standard of care.
Not only can you have a low standard of care, you can have no standard
of care, because you can do the most outrageous things in the world and
no one can sue you. There might be some criminal liability, but then
again, there might not. But the people you have harmed through your
negligence will remain harmed and uncompensated. Don't worry.
Most industries, manufacturers, are governed by the Consumer Product
Safety Commission, which regulates the safety of nearly 15,000 consumer
products used in and around the home. Guns are not regulated by the
Consumer Product Safety Commission because when it was created in 1972,
the gun lobby pressured Congress to specifically exempt guns and
ammunition from its jurisdiction. So there is no regulation by the
Consumer Product Safety Commission.
Now there is no civil liability. Whatever standard of care exists in
this industry is going to further deteriorate. We are causing problems;
we are not solving problems with this legislation.
There is another aspect, too. It is not just the criminal on the
street who comes into control of a handgun, be it through the poor
inventory controls of a Bull's Eye Shooters Company or through the lack
of any apparent security procedures of the Kahr Arms Company. There
were 9,485 people killed and another 127,000 wounded in unintentional
shootings between 1993 and 2001. In about an 8-year period, 127,000
people were unintentionally wounded by weapons; the firearm was
defective or the design was inappropriate and it contributed to their
injury. Don't we want to at least ensure in the design of weapons that
there is a higher standard of care?
For example, there is a case in California of a 15-year-old who was
unintentionally shot and killed by a 14-year-old friend with a
defectively designed gun--Kenzo Dix. His friend Michael thought he had
unloaded his father's gun. He replaced it with an unloaded magazine, he
thought. But he failed to realize that in the chamber of the weapon
there was still one round, and when he fired the gun, it resulted in
the death of his playmate.
Sadly, we read these stories too often. We read these stories about
the individual who has a gun at home and
[[Page S1563]]
the kid find it. The kids don't realize it is loaded, and death or
injury results.
Now Beretta, the manufacturer, could have easily designed the gun to
have some type of indication whether there was a round in the chamber.
They could have had some type of active device to prevent firing. None
of that was done, and, frankly, if we pass this legislation, it will
never be done because they don't have to worry about a parent coming
and saying: If you had made these changes to that weapon, my son would
be alive.
They don't have anything to worry about. We have to worry about it.
If you are a parent and you have a firearm in your home, you have to
worry about it especially. That is not right.
Again, this is not about sophisticated theories of liability,
sophisticated theories of the history of tort law. It is about common
sense, common decency, and common obligation. This bill violates all of
them.
There are lots of experts about firearms, but there is one group that
I think probably is more expert than others. That is the law
enforcement community. Where do they stand on this legislation? More
than 80 police chiefs, sheriffs, and State and national law enforcement
organizations wrote to all of us on February 11 to express their
opposition to this effort to strip away these legal rights. These are
officers from Maine to Texas to Washington State to Virginia to my home
State of Rhode Island, chiefs, rank-and-file police men and women.
I ask unanimous consent that a copy of this letter be printed in the
Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. REED. These law enforcement officers know a bit more about crime
than we do. It is their job. They do it very well. They know about the
damage to communities when guns fall into the hands of those who misuse
them. They see it up close and personal.
Earlier this year, we were in a situation where previous to this bill
there was an effort to destroy gun records, another effort launched on
behalf of the gun lobby. These records are maintained for a few days,
but they wanted to eliminate these records within 24 hours. Los Angeles
Chief of Police William Bratton said: I just can't understand how
Members of Congress can even consider this. Obviously, they haven't
shown up to the scene of enough officer shootings.
This legislation is in a similar vein. It is not about destroying
records of gun purchases. It is destroying the right of an individual
to say: I have been harmed. I need redress.
Again, if you talk to the law enforcement community, they are opposed
to this legislation. It is a free ride for the dealers, for the
manufacturers, and for others.
In this discussion, we have heard a great deal about Bull's Eye
Shooters Supply. There is some suggestion that we fixed that problem.
They have closed it and everyone is being punished.
Here are the facts: Bull's Eye Shooters Supply is still open for
business. The alcohol, tobacco, and firearms agency revoked the license
of Bull's Eye prior owner, Mr. Brian Borgelt. Mr. Borgelt's friend,
Kris Kindschuh, then took over operation of the store.
Mr. Borgelt is appealing his license revocation to the Federal
district court, and that case is pending. Let me stop for a moment.
This is an individual who allegedly was so negligent that he could not
account for 238 weapons, a litany of problems in terms of following the
law. His license is being revoked, but he has a right--and he should
have the right--to go into court and say this revocation is not based
upon the law or the facts.
The irony here, of course, is we are telling victims--perhaps his
victims--that they do not have a right to go into court to seek
redress. This, again, not only is unfortunate, it just defies a rough
sense of justice and fairness.
I think Mr. Borgelt should have every opportunity to appeal this
revocation to prevent an arbitration action by the Government, but
don't the victims of gun violence have a right to claim they have lost
a great deal and they need redress in the courts? We will protect his
rights, as we should, but we are undermining the rights of so many
others.
As far as we know, the ATF, the Department of Justice have not filed
any criminal charges against Borgelt. So the idea that this situation
has been resolved, that this is fine, justice has been done, frankly,
is not the case at all.
Indeed, what I am told is Mr. Borgelt runs the shooting range
upstairs above Bull's Eye Shooter Supply. The shooting range is not
regulated. So for all intents and purposes, particularly if you are a
victim of the sniper shootings in Washington, DC, it does not look as
if much has changed out there at Bull's Eye Shooter Supply.
If the ATF had recommended to the Department of Justice that they
file charges, it has been almost a year. I would hope the Department of
Justice, in a case such as this, could move more promptly. But we have
a situation, frankly, that even if the Justice Department acted, it
still would not compensate and make whole the victims of this series of
crimes in Washington.
Let me focus for a minute on some of the facts we know about Bull's
Eye Shooter Supply because one of the key issues here is whether or not
the Washington sniper victims will be able to go into court if this
legislation passes.
Here are some of the things that have been established so far about
this dealer in Washington State.
There are a large number of missing guns. Bull's Eye could not
account for 238 guns that were missing from its inventory when the
Bureau of Alcohol, Tobacco, Firearms and Explosives inspected the gun
dealer in 2000 and 2002. Bull's Eye's missing gun rate was greater than
at least 99.73 percent of all Federal firearms licensees.
There was no accounting for 238 weapons. A large number of guns from
Bull's Eye appeared in crimes. Between 1997 and 2001, Bulls' Eye guns
were involved in at least 52 crimes, including homicides, kidnappings,
and assaults, placing Bull's Eye in the top 1 percent of all dealers
nationwide in the supply of guns used in crimes. This appears to be a
pretty good source of weapons for crime.
In addition, the time-to-crime ratio was less than 3 years for more
than 70 percent of Bull's Eye guns that were used in crimes from 1997
to 2001. Quick time-to-crime--the time the gun leaves the store and
shows up at a crime--suggests this store may be a highway for guns into
the criminal system. And they have a high rate.
There were a large number of multiple firearm sales. Between 1997 and
2000, Bull's Eye sold 663 guns to 265 individual buyers, as many as 10
guns at a time. This is not the record of a scrupulous, sincere dealer
who is looking to enforce the standards of the industry.
Then, of course, there were numerous ATF citations. ATF cited Bull's
Eye for violations at least 15 times between 1997 and 2001 and,
following the sniper attacks, revoked the license of Bull's Eye's
former owner.
Bull's Eye was cited 15 times between 1997 and 2001. That is not an
inspiring record of scrupulous enforcement of the laws of the country.
Yet what we are saying in this legislation is: Go ahead, you are
fine; you might have your license revoked, but then you are upstairs in
the shooting gallery. Or you might not. Maybe the Government will make
an error. Maybe procedurally they have done something inappropriate,
but certainly you are not going to be able to face justice in the sense
of facing the victims of this negligence.
There is something else this record says. It begs the question, What
about the manufacturer? Why did Bushmaster Firearms, the manufacturer
of the sniper weapon used by the Washington area snipers, tolerate
this? Don't they have an obligation to ensure that the dealers they
entrust with their weapons are not violating ATF regulations--cited 15
times--that they are not selling multiple guns to individuals,
sometimes 10 at a time? Apparently not. After this legislation passes,
they won't have to worry at all.
Many people ask, Why would a manufacturer be involved in this issue?
Why should we be able to sue a manufacturer? If a manufacturer, such as
Bushmaster, not only keeps supplying weapons to dealers such as this,
but then turns a blind eye to all this evidence, it suggests to me they
are not conforming to a reasonable standard of commercial conduct. You
would not exempt an automobile manufacturer
[[Page S1564]]
from potential liability if it was shown that they repeatedly sold cars
to dealers that violated ATF--it would not be ATF regulations, but
consistently violated regulations, that persistently allowed underage
sales, for example, even though you could make the argument that as
long as the 15-year-old does not drive the car, it is a legal sale. But
I think they would be suspicious at least to what was happening.
As a result, there is not only a strong case but there is a necessary
case that manufacturers have to be subject to a standard of care also.
This legislation would strip that away.
My colleague from Idaho and my colleagues on this side who support
this bill say: Listen, this is narrowly crafted; this is not going to
throw any suits out of the courts. You cannot have it both ways. You
cannot be claiming, on one hand, that we are protecting this industry
from lawsuit and then, on the other hand, say everyone can still go to
court after this legislation because they all qualify for the
exemptions. It is nonsense. These exemptions have been made so they do
not exempt very much, if anything at all.
There is an analysis--and I made reference to it in my discussion
surrounding Bull's Eye Shooter Supply--by the law firm of Boies,
Schiller & Flexner. I ask unanimous consent that at the conclusion of
my remarks this analysis be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. REED. Mr. President, this law firm analyzed the legislation, and
their conclusion is, particularly with regard to the Washington area
snipers, that their cases will be thrown out.
There are two sections of the law which provide an exemption from the
categorical dismissal of these cases. They are section (5)(A)(ii) and
(5)(A)(iii). Mr. President, (5)(A)(ii) says:
. . . actions against a seller for ``negligent
entrustment'' or ``negligence per se''. . . .
And (5)(A)(iii) says:
. . . actions against a manufacturer or seller who violated
a statute in the sale or marketing of a firearm or
ammunition, where that statutory violation was a proximate
cause of the plaintiff's injuries. . . .
Their analysis concludes that neither of these exemptions would apply
in the case of the Washington area snipers. Those cases are already
pending. They will be dismissed, thrown out.
It is interesting because we continue to talk about, well, these
exemptions will take care of all these cases, but it turns out that
they will not, that the various nuances, the wording, the knowing
violation of a statute, for example, the arcane cases of negligence
entrustment and negligence per se, which are constructs that only a
lawyer could fully appreciate and enjoy, all of this is craftily
designed to prevent people from going to court, not to give them a fair
right in court.
Again, it goes down not to these nuances, to this legal terminology
but simple common sense. How can one stand up and say this legislation
is designed to protect and insulate injury from the wanton acts of
these third party criminals and then also say but, by the way, all of
these cases will still go through?
I suspect there are things we could do right now to help these cases
go through. ``Dismissal of pending actions'' could be struck. Clearly,
that would suggest that the sniper cases would be in order because this
legislation is not retroactive.
The thrust is not to give people rights; it is to take them away. It
is to protect this one industry at the expense of individual Americans.
The legislation is unusually preferential to a small interest group. It
defies my understanding of why we would try to protect this industry,
which is not financially at risk by their own admissions, at the
expense of individual Americans who have been harmed.
I conclude by saying I never met Conrad Johnson, but like all of us
in this Chamber, I woke up one morning and read about a bus driver
reading his paper, waiting to go to work. I, frankly, thought of my
father, who was a school custodian who got up in the morning, read the
paper, getting ready to go to work.
He was shot reading that paper, killed. He left a wife and small
children. That wife and that family have gone to court to say: Where is
our justice? Maybe somebody will be convicted for doing something
wrong, but how are we going to live for the next 40 or 50 years? People
have been negligent--at least we think they have. There is a Bull's Eye
Shooters store that lost 238 weapons and was cited 15 times by the ATF.
They are not going to have a day in court to answer to Mrs. Johnson? I
cannot understand this legislation.
I yield the floor.
Exhibit 1
February 11, 2004.
Dear Senator: As active and retired law enforcement
officers, we are writing to urge your strong opposition to S.
659, the so-called ``Protection of Lawful Commerce in Arms
Act.'' This bill would strip away the legal rights of gun
violence victims, including law enforcement officers and
their families, to seek redress against irresponsible gun
dealers and manufacturers.
The impact of this bill on the law enforcement community is
well illustrated by the lawsuit brought by former Orange, New
Jersey police officers Ken McGuire and David Lemongello. On
January 12, 2001, officers McGuire and Lemongello were
seriously wounded in a shoot-out with a burglary suspect. The
Ruger pistol used by the suspect was one of twelve guns sold
by a West Virginia pawnshop, Will's Jewelry and Loan, to a
``straw purchaser'' for a gun trafficker. The all-cash sale,
for thousands of dollars, was so obviously suspicious that
Will's reported it to the Bureau of Alcohol, Tobacco and
Firearms, but only after the sale was consummated. The
pawnshop had every reason to believe that, as soon as the
guns left its premises, they would be sold into the
underground market, destined to threaten the lives of police
officers and ordinary citizens.
Officers McGuire and Lemongello are pursuing legal action
against Will's for negligent sales practices and against the
gun's manufacturer, Sturm, Ruger, for distributing guns
without requiring its dealers to adhere to a code of
responsible business practices that would prevent such
obvious sales to gun traffickers. A West Virginia judge
recently ruled that the officers' suit against Will's and
Sturm, Ruger is well-grounded in West Virginia law and should
be heard by a jury. If passed into law, S. 659 would override
this decision and deprive these brave officers of their day
in court.
Police officers like Ken McGuire and David Lemongello put
their lives on the line every day to protect the public.
Instead of honoring them for their service, S. 659 would
deprive them of their basic rights as American citizens to
prove their case in a court of law. We stand with officers
McGuire and Lemongello in urging you to oppose this bill.
____
Exhibit 2
Boies, Schiller & Flexner LLP,
Armonk, NY, February 17, 2004.
Re opinion letter concerning proposed immunity legislation
for gun dealers and manufacturers.
Michael Barnes,
President, The Brady Center to Prevent Gun Violence,
Washington, DC.
Dear Mr. Barnes: At your request, this letter addresses the
legal implications of the proposed gun dealer and
manufacturer immunity legislation, focusing specifically on
the impact of the legislation on the pending civil lawsuit
brought by the victims of the Washington, DC area sniper
attacks in the fall of 2002. For the reasons discussed below,
it is our judgment that the passage of S. 1805--the current
version of the immunity bill, which incorporates the so-
called ``Daschle Amendments''--would require the immediate
dismissal of the sniper victims' claims against the parties
who supplied the assault rifle used in the attacks. We
further conclude that the legislation would effect far-
reaching, and unprecedented, changes in the law that would
insulate the gun industry from other important pending cases
as well as future accountability.
After providing a brief background concerning the sniper
victims' civil suit and the proposed legislation, we analyze
the impact of the legislation on the pending sniper case. We
then offer some more general observations about the proposed
legislation, including a discussion of its implications for
other significant cases against gun dealers and
manufacturers.
background
I. The sniper victims' legal claims against the dealer and manufacturer
who supplied the snipers' weapon
For over a month in the fall of 2002, John Allen Muhammad
and Lee Boyd Malvo terrorized the nation's capital and its
surrounding states through a series of sniper attacks on
innocent men, women, and children. From the trunk of
Muhammad's car, the snipers used a deadly-accurate assault
rifle to kill thirteen people, and to seriously injure
another six, in Washington, DC, Maryland, Virginia, Alabama,
Louisiana and Georgia. Among the snipers' victims were a 47-
year-old FBI analyst who was loading a car with her husband
in a Home Depot parking lot, a 72-year-old retired carpenter
who was waiting on a street corner, and a 13-year-old boy who
had just been dropped off at school. Muhammad and Malvo were
apprehended on October 24, 2002, and have since been
convicted for their crimes.
The weapon that Muhammad and Malvo used in the sniper
attacks was a Bushmaster
[[Page S1565]]
XM-15 E2S .223 semi-automatic rifle equipped with a bipod and
telescopic sight. The snipers obtained the ``one shot, one
kill'' assault weapon they used in the shootings from Bull's
Eye Shooter Supply in Tacoma, Washington, even though the law
prohibited either of them from purchasing any firearm.
Muhammad was under a domestic violence protective order, and
Malvo was both a juvenile and an illegal alien. Bull's Eye
representatives claim not to have any record of sale for the
weapon and cannot account for how the snipers obtained the
assault rifle.
The publicly-available evidence reveals that in addition to
permitting the snipers' weapon to disappear from its shop,
Bull's Eye Shooter Supply engaged in numerous irresponsible
business practices:
Large Number of Missing Guns. Bull's Eye could not account
for a total of 238 guns that were missing from its inventory
when the Bureau of Alcohol, Tobacco, Firearms and Explosives
(``AFT'') inspected the gun dealer in 2000 and 2002. Bull's
Eye's missing gun rate was greater than at least 99.73% of
all federal firearms licensees; 80% of dealers who sell at
least 50 firearms per year can provide records to account for
every one of their gun sales.
Large Number of Crime Guns. Between 1997 and 2001, Bull's
Eye guns were involved in at least 52 crimes, including
homicides, kidnappings, and assaults, placing Bull's Eye in
the top 1% of all dealers nationwide in the supply of guns
used in crimes. That same 1% of gun stores supplies the
weapons traced to 57% of all gun crimes.
Quick Time-to-Crime. The ``time-to-crime'' was less than 3
years for more than 70% of Bull's Eye guns that were used in
crimes between 1997 and 2001. Quick time-to-crime is
considered a ``red flag'' for problem gun dealers because it
indicates that such dealers' guns are quickly getting into
criminal hands through illegal trafficking. In 2000, the
nationwide median time-to-crime was 6\1/2\ years, and the
time-to-crime was under 3 years for only 31% of traced crime
guns. The time-to-crime for the snipers' weapon--which was
received by Bull's Eye in July 2002--was under 3 months.
Large Number of Multiple Firearm Sales. Between 1997 and
2000, Bull's Eye sold 663 guns to 265 individual buyers, as
many as 10 guns at a time. Such ``multiple firearms sales''
are considered to be another indicator that a gun dealer may
be selling to gun traffickers.
Numerous ATF Citations. ATF cited Bull's Eye for violations
at least 15 times between 1997 and 2001, and, following the
sniper attacks, revoked the license of Bull's Eye's former
owner.
Following ATF's revocation of his license, Bull's Eye's
former owner transferred ownership of the store to a close
friend. Bull's Eye continues to operate today, and the
store's former owner retains ownership of the property and
operates a shooting range in the same building.
The manufacturer of the snipers' murder weapon of choice,
Bushmaster Firearms, Inc. of Maine, not only modeled its XM-
15 rifle after military-style assault weapons that Congress
outlawed with the Assault Weapons Ban in 1994, but also
marketed the rifle as an assault weapon designed for sniper
activity. At the time, Bushmaster selected and used Bull's
Eye as one of its sixty distributors nationwide despite
numerous ``warning signs'' concerning Bull's Eye's handling
of its firearms inventory. Bushmaster also allegedly failed
to take certain basic precautions concerning the guns it
shipped to Bull's Eye and others, including, among other
things, declining the Justice Department's offer to assist
Bushmaster in tracing guns that had been used in crimes in
order to determine which of its dealers were supplying such
guns; neglecting to require Bull's Eye to adopt any of ATF's
suggested measures for preventing gun thefts; and failing to
require Bull's Eye to notify it of gun trace requests
initiated by law enforcement agencies or to certify its
compliance with firearms laws and regulations. Even after the
sniper attacks, Bushmaster, through its vice president of
administration, referred to Bull's Eye as ``a good customer''
to whom Bushmaster would continue to sell guns.
Victims of the sniper attacks and the families of victims
who were killed have filed a civil lawsuit in Washington
State Court against Bull's Eye Shooter Supply and Bushmaster
Firearms for their roles in permitting the snipers to access
their murder weapon. According to the complaint: ``In
addition to the intentional acts of Muhammad and Malvo, the
gross negligence of the gun industry defendants caused the
injuries and deaths that resulted from the sniper shootings
by enabling prohibited purchasers Muhammad and Malvo to
obtain the Bushmaster assault rifle to wreak havoc on
innocent persons.'' Specifically with respect to Bull's Eye,
the plaintiffs claim that the gun dealer's grossly
irresponsible business practices routinely permitted guns,
including the snipers' weapon, to disappear from its store.
They further claim that ``Bushmaster deliberately continued
to utilize Bull's Eye as a Bushmaster gun dealer and supplied
it with as many guns as Bull's Eye wanted, despite years of
audits by the Bureau of Alcohol, Tobacco, Firearms and
Explosives showing that Bull's Eye had scores of
missing guns.'' At the heart of plaintiffs' Complaint is
their allegation that if Bull's Eye and Bushmaster had
``acted responsibly in the sale of their guns, Muhammad
and Malvo would not have been able to obtain the assault
rifle they needed to carry out the shootings.''
On June 27, 2003, Washington Superior Court Judge Frank E.
Cuthbertson upheld the sniper victims' claims against the
defendants' motion to dismiss, concluding that the
plaintiffs' negligence and public nuisance claims were
actionable against both Bull's Eye and Bushmaster. Johnson v.
Bulls Eye Shooter Supply, No. 03-2-03932-8, 2003 WL 21639244
(Wash. Super. Ct. June 27, 2003). The court found that the
plaintiffs' claims against Bull's Eye could stand based on
``a common law duty in Washington to use reasonable care in
the sale and distribution of firearms''; that the ``facts in
the present case indicate that a high degree of risk of harm
to plaintiffs was created by Bull's Eye Shooter Supply's
allegedly reckless or incompetent conduct in distributing
firearms''; and that the facts alleged ``demonstrate an
arguably unbroken nexus between the loss of the assault rifle
and the injuries of the plaintiffs.'' The Court further
concluded that the plaintiffs' claims against Bushmaster
should be permitted to reach a jury based on Bushmaster's
entrusting firearms to Bull's Eye even though Bushmaster
allegedly ``knew or should have known that Bull's Eye Shooter
Supply was operating its store in a reckless or incompetent
manner, creating an unreasonable risk of harm.'' Trial in the
case against Bull's Eye and Bushmaster has been set for
November 2004.
II. The proposed immunity legislation for gun dealers and manufacturers
On April 9, 2003, the House of Representatives passed a
bill (H.R. 1036) to provide sweeping immunity from pending
and future lawsuits to distributors, dealers, manufacturers,
and importers of firearms and ammunition. Senator Larry Craig
(R-ID) introduced companion legislation in the Senate (S.
659), which, last October, was modified to incorporate
certain amendments that had been proposed by Minority Leader
Tom Daschle (D-SD). The current version of the immunity bill
(S. 1805), which incorporates the so-called ``Daschle
Amendments,'' is expected to be considered by the Senate in
the first week of March 2004.
According to its terms, S. 1805 would foreclose--and
require the immediate dismissal of--any state or federal
``qualified civil liability action,'' Sec. 3(a), which the
statute defines to include any ``civil action brought by any
person against any manufacturer or seller'' of firearms or
ammunition ``for damages resulting from the criminal or
unlawful misuse'' of such products. Sec. 4(5)(A). From this
blanket prohibition on such civil actions, section 4(5)(A) of
the proposed bill carves out the following exclusive list of
circumscribed exceptions:
(i) actions against a manufacturer or seller who has been
criminally convicted of transferring a firearm with the
knowledge that it would be used to commit a violent or drug-
trafficking crime, if the plaintiff was directly harmed by
the conduct of which the recipient of the firearm has also
been criminally convicted;
(ii) actions against a seller for ``negligent entrustment''
or ``negligence per se'';
(iii) actions against a manufacturer or seller who violated
a statute in the sale or marketing of a firearm or
ammunition, where that statutory violation was a proximate
cause of the plaintiff's injuries;
(iv) actions for breach of contract or warranty in
connection with the purchase of a firearm or ammunition; and
(v) actions for physical injuries or property damages
resulting directly from a design or manufacturing defect in a
firearm or ammunition, when such items have been used as
intended or in a ``reasonably foreseeable'' manner (as that
term is defined in the bill).
Because S. 1805 expressly disclaims any intention to create
causes of actions or remedies, see Sec. 4(5)(D), the above-
described exceptions would only preserve civil claims brought
under otherwise applicable state or federal law. Other than
as specifically preserved by these exceptions, however, the
proposed legislation would preempt, as a matter of federal
law, any state or federal lawsuits against irresponsible
sellers or manufacturers of firearms or ammunition.
analysis
I. The proposed immunity legislation would likely require the immediate
dismissal of the sniper victims' claims
Close examination of the exceptions enumerated in section 4
of the proposed immunity legislation reveals that none would
appear to preserve the claims brought by the victims of the
sniper attacks and their families against the parties
responsible for permitting the snipers to obtain their murder
weapon. In fact, the passage of S. 1805 would likely compel
the judge in the sniper case immediately to dismiss those
claims. The following analysis focuses on paragraphs
(5)(A)(ii) and (5)(A)(iii) of the proposed legislation
because those provisions contain the only exceptions that
could even conceivably apply to the sniper case.
A. The Statutory Violation Exception Embodied in Paragraph (5)(A)(ii)
Will Not Save the Sniper Victims' Claims
Section 4, paragraph (5)(A)(ii) of the proposed legislation
preserves an ``action in which a manufacturer or seller of a
qualified product violated a State or Federal statute
applicable to the sale or marketing of the product, and the
violation was a proximate cause of the harm for which relief
is sought. . . .'' According to well-settled tort law
principles, proximate cause requires that a defendant's
conduct was ``a substantial factor
[[Page S1566]]
in bringing about the harm'' suffered by the plaintiff. See
Restatement (Second) of Torts Sec. 431 (2003); accord
Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666, (N.Y.
1980); Anderson v. Duncan, 968 P.2d 440, 442 (Wyo. 1998).
Where a defendant's statutory violation was not a requirement
to reject claims based on that violation. See, e.g., Fox v.
Bartholf, 374 So. 2d 294, 296 (Ala. 1979) (affirming summary
judgment for defendants where there was no evidence that
truck driver's alleged violation of statute, which prescribed
lawful speed in approaching highway intersections when
driver's view is obstructed, proximately caused plaintiff's
injury); Yates v. Shackelford, 784 N.E.2d 330, 336-37 (Ill.
App. Ct. 2002) (affirming summary judgment for defendants
where defendant driver's violation of left-shoulder parking
ban did not proximately cause collision); Travelers Indem.
Co. of Ill. v. 28 East 70th St. Constr. Co., No. 01 Civ. 3001
(JGK), 2003 WL 23018604 (S.D.N.Y. Dec. 22, 2003) (granting
defendant's motion for summary judgment where alleged failure
to stamp pipe with manufacturer's identification number in
violation of building code ``clearly did not proximately
cause the pipe to freeze and burst'').
The plain language of paragraph (5)(A)(ii) would appear to
dictate the same result in the sniper case. Despite the
above-discussed evidence of Bull's Eye numerous failings as a
gun dealer, there is no reason to believe that the plaintiffs
in the sniper case will be able to show that Bull's Eye
violated any state or federal statute with respect to the
particular gun that was used by the snipers or that any such
statutory violation was a proximate cause of the sniper
attacks. The evidence concerning the acquisition of the
snipers' weapon supports Bull's Eye's claim that Lee Boyd
Malvo shoplifted the gun. Indeed, after this arrest, Malvo
admitted that he shoplifted the weapon from Bull's Eye in the
summer of 2002. Although the plaintiffs claim that Bull's
Eye's lax security practices permitted Malvo to acquire the
weapon, such proof would not establish a violation of any
state of federal statute.
Of course, the plaintiffs in the sniper case could attempt
to shoehorn Bull's Eye's failure to report the theft of the
snipers' weapon into the illustration provided in
subparagraph (A)(iii)(I), which covers ``any case in which
the manufacturer or seller knowingly made any false entry in,
or failed to make appropriate entry in, any record required
to be kept under Federal or State law.'' Federal law requires
licensed gun dealers to report the loss or theft of a firearm
``within 48 hours after the theft or loss is discovered.'' 18
U.S.C. Sec. 923(g)(6). The difficulty with this argument,
however, is that Bull's Eye has denied that it knew the gun
was missing until the sniper suspects were apprehended and
authorities had traced the gun to the shop, and there is no
known evidence to refute that claim. (Bull's Eye in fact
reported the missing gun to authorities on November 5, 2002.)
Given Bull's Eye's claim, and the fact that the sniper
shootings were over by the time Bull's Eye's federal
reporting requirement would have been triggered by its
discovery that the weapon was missing, it appears unlikely
that the plaintiffs will be able to avoid dismissal based on
subparagraph (A)(iii)(I).
B. The Negligent Entrustment/Negligence Per Se Exceptions Embodied in
Paragraph (5)(A)(ii) Will Not Save the Sniper Victims' Claims
Nor is it likely that the exceptions embodied in paragraph
(5)(A)(ii) of section 4--which covers actions ``brought
against a seller for negligent entrustment or negligence per
se''--would save the plaintiffs' civil claims against Bull's
Eye and Bushmaster in the sniper case. As an initial matter,
because the subparagraph (A)(ii) exceptions are specifically
limited to a ``seller'' and, as defined in paragraph (6),
seller does not include firearm manufacturers, the exceptions
would not even apply to the claims against Bushmaster.
Moreover, as explained below, the plaintiffs' claims against
Bull's Eye would not appear to fall within the narrow
``negligent entrustment'' and ``negligence per se''
exceptions of S. 1805.
1. Negligent entrustment
For purposes of applying paragraph (5)(A)(ii), the proposed
legislation provides the following definitions of ``negligent
entrustment'': ``the supplying of a qualified product by a
seller for use by another person when the seller knows, or
should know, the person to whom the product is supplied is
likely to, and does, use the product in a manner involving
unreasonable risk of physical injury to the person or
others.'' Sec. 4(5)(B). In light of the evidence that Malvo
shoplifted the snipers' weapon from Bull's Eye, the
plaintiffs in the sniper case will face significant obstacles
qualifying for that statutory exception.
Courts have repeatedly rejected negligent entrustment
claims absent evidence that the defendant acted affirmatively
in entrusting--or, in the words of paragraph (5)(A)(ii),
``supplying''--the dangerous instrumentality in question. See
Butler v. Warren, 582 S.E.2d 530, 532-33 (Ga. Ct. App. 2003)
(affirming summary judgment against plaintiff's negligent
entrustment claim where evidence did not permit finding that
defendants had allowed their truck to be driven off their
property); Mackey v. Dorsey, 655 A.2d 1333, 1338 (Md. Ct.
Spec. App. 1995) (affirming trial court's finding that
defendant was ``not liable for negligent entrustment''; ``We
find it axiomatic that when a vehicle is stolen, as it was
here, the owner cannot be said to have supplied, entrusted,
or `made available' his or her vehicle. The `making
available' of the chattel requires that the supplier do so
knowingly or with the intent to supply the chattel to that
person.''); Kingrey v. Hill, 425 S.E.2d 798, 799 (Va. 1993)
(reversing trial court and entering judgment for defendant on
plaintiff's negligent entrustment claim, which was based on
defendant's failure to prevent access to rifle; court
analogized to car cases, in which finding of ``entrustment''
requires ``evidence of express permission, evidence of a
pattern of conduct supporting implied permission, or evidence
of knowledge that an automobile would be used notwithstanding
explicit instructions to the contrary''); Todd v. Dow, 19
Cal. App. 4th 253, 260-61, 23 Cal. Rptr. 2d 490, 494-95 (Cal.
Ct. App. 1993) (affirming summary judgment for parents in
negligent entrustment claim arising from their storage of
adult child's rifle in their house; ``Liability for negligent
entrustment arises from the act of entrustment . . . .
Parents did not sell, loan, furnish, or supply the rifle.'');
``Commercial Carrier Corp. v. S.J.G. Corp., 409 So. 2d 50, 52
(Fla. Dist. Ct. App. 1981) (affirming dismissal of negligent
entrustment claim for injuries sustained in car accident
after defendant left keys in unattended car and car was
stolen; absent proof of knowledge and consent of car owner,
liability for negligent entrustment will not lie); Cutler v.
Travelers Ins. Co., 412 A.2d 284, 285 (Vt. 1980) (affirming
dismissal of plaintiffs' claims arising out of collision,
which resulted from car theft; fact that defendant left keys
in car ignition or truck lock could not establish entrustment
of car, by express or implied consent, to car thief); Reicher
v. Melzer, 158 N.E.2d 191, 193 (Ohio 1959) (affirming
directed verdict for defendant on plaintiff's negligent
entrustment claim where record showed that employee involved
in accident ``was operating the truck solely for his own
convenience in going from his place of employment, at the end
of his day's work, to his home on a rainy day; and that he
had taken the truck without anyone's permission or direction
and without defendant's knowledge'').
Although courts throughout the country have recognized
separate claims for the negligent storage or security of
firearms, see, e.g., Heck v. Stoffer, 786 N.E.2d 265, 268-70
(Ind. 2003); Gallara v. Koskovich, 836 A.2d 840, 851 (N.J.
Super. Ct. Law Div. 2003); Long v. Turk, 962 P.2d 1093, 1097
(Kan. 1998); Pavlides v. Niles Gun Show, Inc., 637 N.E.2d
404, 408-10 (Ohio Ct. App. 1994); Kimbler v. Stillwell, 734
P.2d 1344, 1346-48 (Or. 1987) (en bank); Cathey v. Bernard,
467 So. 2d 9, 11 (La. Ct. App. 1985), such claims would be
foreclosed by the proposed immunity legislation.
Furthermore, the narrow definition of ``negligent
entrustment'' in the proposed statute would likely prevent
the plaintiffs from relying on that exception for yet another
reason. The evidence that the snipers' weapon was shoplifted
from Bull's Eye would appear to preclude the plaintiffs from
making the requisite showing under the statute that the gun
shop knew or should have known that the recipient of the gun
(i.e., Malvo) was likely to use the product in a criminal or
otherwise unreasonably dangerous manner.
2. Negligence per se
The proposed immunity bill does not define ``negligence per
se,'' but to the extent that the negligent per se exception
in paragraph (5)(A)(ii) would permit the survival of state
causes of action, it will not assist the plaintiffs in the
sniper case: the negligence per se doctrine has been
abrogated by statute in Washington State. See RCWA 5.40.050;
Morse v. Antonellis, 70 P.3d 125, 126 (Wash. 2003); see also
Pettit v. Dwoskin, 68 P.3d 1088, 1091-92 (Wash. Ct. App.
2003) (``But the doctrine of negligence per se is no longer
viable in Washington. Rather, violation of a legal
requirement is evidence of negligence.'').
In any event, the negligence per se exception would not
preserve the sniper case because even where that doctrine is
recognized, it requires a violation of a statute or
regulation that is the proximate cause of the plaintiff's
injury. See 57A. Am. Jur. 2d Negligence Sec. 728 (2003);
O'Guin v. Bingham County, 72 P.3d 849, 856 (Idaho 2003);
Elder v. E.I. DuPont De Nemours & Co., 479 So. 2d 1243, 1248
(Ala. 1985). As discussed above, however, it is doubtful that
the plaintiffs in the sniper case will be able to establish
that any such violation was a substantial factor in causing
their injuries.
II. The proposed immunity legislation would overturn well-settled legal
principles and jeopardize other important gun cases
The proposed immunity legislation would have far-reaching
implications beyond its likely direct and immediate effect on
the pending civil case brought by the snipers' victims. The
statute would accord gun dealers and manufacturers an
unprecedented immunity. Indeed, under the statute, dealers
and manufacturers of lethal weapons would receive insulation
from lawsuits to which the sellers and makers of virtually
every other product (including even toy guns) would be
subject. As discussed herein, the legislation would close
courtroom doors nationwide to any claims arising out of,
among other things, the negligent security or storage
practices of any gun dealer or manufacturer, the negligent
sale of guns by and dealer to so-called ``straw purchasers''
for illegal gun traffickers, and the negligent failure of any
gun manufacturer to include basic safety devices that would
have prevented tortious or criminal shootings.
The implications of the sweeping immunity proposed for the
gun industry are further compounded by the fact that the
industry is already largely exempt from federal
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regulations that apply to the manufacture and distribution of
other products. Guns were specifically exempted from the
jurisdiction of the Consumer Product Safety Commission, which
Congress created in 1972 to protect the public from consumer
product injuries. Even ATF--which licenses and oversees gun
dealers--lacks any authority to establish manufacturing or
distribution standards for firearms.
Focusing exclusively on criminal and other statutory
prohibitions, supporters of the proposed immunity legislation
have argued that the bill would simply eliminate lawsuits
against gun dealers and manufacturers who ``have not broken
the law.'' But this oversimplified view ignores the pivotal
role that state and federal common law plays in promoting
public safety and accountability, in addition to ensuring
compensation for the victims of dangerous and irresponsible
conduct. Beyond criminal and other statutory proscriptions on
such conduct, civil common law has long protected the public
by holding businesses and individuals alike to a standard of
reasonable care in all their activities. The broad insulation
from suit promised by the immunity legislation would largely
free the makers and sellers of deadly weapons from such
generally applicable common law standards.
Nor does the fact that gun injuries often result from
criminal acts provide a legal justification for the immunity
legislation. It has long been a settled principle of tort law
that an intervening act of a third party, even if criminal
(e.g., a sniper shooting), will not break the causal chain
from a party's negligence (e.g., the negligent distribution
of the murder weapon) to a plaintiff's injury so long as the
intervening act was reasonably foreseeable. See, e.g., Largo
Corp. v. Crespin, 727 P.2d 1098, 1103 (Colo. 1986) (en banc);
Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d 54, 55-56
(Fla. 1977); see also Restatement (Second) of Torts Sec. 302B
(2003) (``An act or an omission may be negligent if the actor
realizes or should realize that it involves an unreasonable
risk of harm to another through the conduct of the other or a
third person which is intended to cause harm, even though
such conduct is criminal.''). As Judge Cuthbertson correctly
recognized in the sniper case, where a defendant handles a
lethal weapon in an irresponsible manner, through which
criminals and other prohibited persons may access it and
use it to commit dangerous crimes, the question of whether
there is an adequate causal link between the tortfeasor's
conduct and the resulting injuries is for a jury to
decide. Johnson, 2003 WL 21639244, at *3-4.
In addition to the sniper case, the proposed immunity would
likely require the dismissal of several other important cases
that seek to hold allegedly reckless gun dealers and
manufacturers responsible for their conduct, including:
Hernandez ex rel. Guzman v. Kahr Arms, Civ. Act. No.
WOCV2002-01747 (Mass Super. Ct. 2003). Danny Guzman was shot
and killed with a nine millimeter handgun, one of several
guns that had been stolen and resold by employees of the Kahr
Arms factory. According to the lawsuit filed by the
decedent's family, defendant Kahr Arms employed a number of
convicted criminals and drug addicts because it did not
conduct general or criminal background checks on its
employees and did not test prospective or existing employees
for drugs. To make matters worse, the plaintiffs allege that
Kahr Arms did nothing to prevent employees from leaving its
plant with guns--which Kahr touted as ``the smallest,
flattest, most reliable full power compact handguns made''--
even before they had been stamped with serial numbers,
rendering them virtually untraceable. Among the plaintiffs'
other claims, Kahr Arms had no metal detectors, x-ray
machines, security cameras, or security guards; did not check
employees at the end of their shifts; did not use any
inventory-tracking system to determine when weapons or parts
were missing; and could not account for approximately 16
outgoing shipments of weapons that never arrived at their
intended destinations between February 1998 and February
1999. On April 7, 2003, the Massachusetts Superior Court
upheld the plaintiffs' negligence and public nuisance claims
against Kahr Arms' motion to dismiss. The Guzman's family's
right to sue Kahr Arms would be immediately revoked if the
proposed immunity legislation were to pass. As in the sniper
case, the claims against Kahr Arms involve irresponsible
security for deadly weapons, claims that would be foreclosed
by the proposed immunity legislation. First, the plaintiffs'
claims of negligent security against Kahr Arms do not involve
any statutory violation. Moreover, the negligent entrustment
exception would not apply to Kahr Arms for the dual reasons
that it is a firearm manufacturer and that it did not entrust
any weapon to Danny Guzman's shooter.
Lemongello v. Will Company, No. Civ.A. 02-C-2952, 2003 WL
21488208 (W. Va. Cir. Ct. Mar. 19, 2003). New Jersey Policy
Detective David Lemongello and Officer Kenneth McGuire were
seriously injured in January 2001 when they were shot by a
career criminal while performing undercover police work. Even
though the shooter was a person prohibited by law from
purchasing a firearm, he obtained his weapon, a nine
millimeter semi-automatic Ruger handgun, illegally from a gun
trafficker. The trafficker, in turn, was also prohibited from
buying weapons due to a prior felony, so he used an
accomplice (a so-called ``straw purchaser'') to make multiple
gun purchases from defendant Will Jewelry & Loan, in West
Virginia. In their lawsuit against Will Jewelry & Loan and
others, the officers allege that the gun dealer acted
negligently in selling the straw purchaser twelve guns
(including the Ruger used in the shooting of the
two officers) that had been selected in person by the gun
trafficker and paid for in a single cash transaction. The
circumstances of that sale were so suspect that the
defendant dealer reported it to the ATF--but only after
the purchase price had been collected and the guns had
left the store. The officers' suit further charges gun
manufacturer Sturm Ruger & Company with negligently
failing to monitor and train its distributors and dealers
and negligently failing to prevent them from engaging in
straw and multiple firearm sales. Although a West Virginia
trial court has held that the plaintiffs have stated valid
negligence and public nuisance claims under state law, the
proposed immunity legislation would require the immediate
dismissal of those claims. Notwithstanding the plaintiffs'
claims that the defendants failed to exercise reasonable
care in their sales of firearms, neither the dealer nor
the manufacturer violated any statutory prohibition in
selling the guns. Nor could the plaintiffs contend that
their case falls within the ``negligent entrustment''
exception to the proposed immunity legislation because the
gun dealer supplied the firearm to a straw purchaser--not
to someone whom the seller knew or should have known was
likely to, and did, use the product in a manner involving
unreasonable risk of physical injury to the person or
others.
Smith v. Bryco Arms, 33 P.3d 638 (N.M. Ct. App.), cert.
denied, 34 P.3d 610 (N.M. 2001). Fourteen-year-old Sean Smith
was seriously injured when a friend accidentally shot him in
the mouth with a .22 caliber handgun, the Bryco J-22. The
shooter believed the gun was unloaded because the ammunition
magazine had been removed; the gun failed to reveal the
hidden bullet in its chamber. Sean Smith's parents sued the
manufacturer (Bryco Arms) and the distributor (Jennings
Firearms) of the J-22 alleging negligence and products
liability claims based on the defendants' failure to
incorporate any of the various available safety features that
would have prevented the accidental shooting, including an
internal ``magazine-out safety'' lock, a ``chamber load
indicators,'' or a written warning on the gun alerting users
that the J-22 could fire even with its magazine removed.
Reversing a lower court decision, the New Mexico Court of
Appeals has held that the defendants could be held liable for
their failure to incorporate long-known, available, and
economically feasible safety devices in the J-22. The
proposed immunity legislation, however, would require the
immediate dismissal of these claims because the shooting of
Sean Smith, even if accidental, constituted an ``unlawful
misuse'' of the J-22, thereby removing the case from the
statutory exception ostensibly intended for cases involving
gun design or manufacturing defects. See Sec. Sec. 4(5)(A)(v)
(preserving ``an action for physical injuries or property
damage resulting directly from a defect in design or
manufacture of the product, when used as intended or in a
manner that is reasonably foreseeable'') & 4(5)(C) (defining
'`reasonably foreseeable'' for purposes of paragraph 5(A)(v)
to exclude ``any criminal or unlawful misuse of a qualified
product, other than possessory offenses''). Indeed, given the
fact that virtually any shooting of a person would constitute
a ``criminal or unlawful misuse'' of a firearm, the immunity
legislation would effectively eliminate most claims arising
out of the defective design or manufacture of a firearm.
By preventing these cases, and future cases like them, from
proceeding against irresponsible gun dealers and
manufacturers, the proposed immunity legislation would
undermine the incentives that encourage reasonable business
practices in the gun industry, thereby inevitably failing to
deter avoidable gun injuries and fatalities.
In sum, the proposed legislation would insulate gun dealers
and manufacturers from the obligations to act reasonably and
in good faith that every other business has. If the
legislation were to pass, sellers of products that are among
the most dangerous products would have the least obligation
to act reasonably.
For all of the above reasons, it is our judgment that the
passage of S. 1805 would require the immediate dismissal of
the pending civil case against the gun dealer and
manufacturer who supplied the snipers' murder weapon as well
as other significant cases against gun dealers and
manufacturers. Furthermore, by providing the gun industry
with unprecedented immunity from common law claims directed
at those who engage in irresponsible and dangerous business
practices, the proposed legislation would further insulate
the sellers and manufacturers of deadly weapons from public
accountability for such conduct.
Sincerely,
David Boies.
Sean Eskovitz.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. I rise today in support of S. 1805, the Protection of
Lawful Commerce in Arms Act. This critically important bipartisan
legislation will block baseless lawsuits initiated by individuals who
wish to drive out of business a lawful and legitimate business, the
American firearms industry.
This bill will halt lawsuits that are nothing more than shameless
attempts
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to advance a stalled anti-gun legislative agenda and a flagrant abuse
of the judicial system. I commend my colleague, Senator Larry Craig,
and other cosponsors from both sides of the aisle, over 50 of them, for
their hard work to get this bill to the Senate floor.
As my colleagues are aware, I have long been a proponent of
legislation that addresses the growing problem of lawsuit abuse. The
issues addressed by this legislation will remedy one such class of
shameless and abusive lawsuits. I am hopeful this will be the first of
many other reform measures that the Senate will take up before the end
of the 108th Congress. This includes asbestos reform that would save
this country, save jobs, provide jobs, for hundreds of thousands of
people; bankruptcy, which also would save jobs that our friends on the
other side seem to be stopping; and class action reform, which in the
end would save jobs.
As I mentioned, this legislation has broad bipartisan support,
including from the minority leader. I agreed with my colleague, Senator
Daschle, when he quite accurately stated:
It is wrong, and it is a misuse of the civil justice
system, to try to punish honest, law-abiding people for
illegal acts committed by others without their knowledge or
involvement. That's not the way we do things in America. We
do not hold innocent people responsible for acts they are not
involved in and over which they have no control.
I commend Senator Daschle. He could not have said it better. I call
these lawsuits shameless because the trial lawyers who bring them--and
they are really personal injury lawyers, by and large, who bring them--
dislike and attack a product that is produced and marketed legally.
What is going on is simply outrageous. It is as absurd as suing a car
manufacturer for drunken driving accidents or suing a fast food company
because a hamburger has more calories than it should. We must put a
stop to these senseless lawsuits before our legal system grinds to a
halt.
The need for legislation of this type is imperative. This legislation
will prohibit civil liability actions against the firearms industry for
damages resulting from the misuse of its products by others; that is,
meritless lawsuits based on lawful products that are intentionally
misused are prohibited by this bill. Now, anybody who thinks ought to
agree with that.
In product liability cases, plaintiffs traditionally have been able
to sue for compensation for injuries because, No. 1, a product was
defective; No. 2, the defect posed an unreasonable danger to the user;
and No. 3, the defect caused the injury. A ``defective product'' is one
that does not operate as a reasonable manufacturer would design and
make it, as a reasonable consumer would expect, or as other products of
its type.
Courts uniformly have held that a defect must exist in the product at
the time it was sold and that a plaintiff's injury must have been the
result of that defect. However, in the firearms context, gun
manufacturers and dealers are potentially liable for injuries that
occur because their properly operating product is criminally or
negligently misused. Now, this is unacceptable.
I would also like to take this opportunity to make clear that this
legislation does not relieve from liability gunmakers who create
defective products or gun dealers who negligently sell weapons when
they know or should have known that such a weapon would be used in a
crime.
Additionally, this legislation contains the following significant
safeguards: One, an action brought against a transferor convicted for
transferring a firearm knowing it would be used in a crime of violence
or drug trafficking crime by a party directly harmed by the conduct of
which the transferee is so convicted; No. 2, an action brought against
a seller for supplying a firearm or ammunition to another person when
one knows or should know that person is likely to and does use the
product in a manner involving unreasonable risk of physical injury to
the person and others for negligence per se; No. 3, an action in which
a manufacturer or seller violated a State or Federal statute applicable
to the sale or marketing of the product and the violation was the
proximate cause of the harm for which relief was sought; No. 4, an
action for breach of contract or warranty in connection with the
purchase of a product; or No. 5, an action for physical injuries or
property damage resulting directly from a defect in design or
manufacture of the product when used as intended or in a manner that is
reasonably foreseeable.
Now, because this bill strikes the right balance between protecting
the general public and those who manufacture a lawful product, I
strongly support the legislation, and I urge all of my colleagues to do
the same.
We all know what is involved. We know the personal injury lawyers are
going to sue just about anybody against whom they are able to conjure
up a theory of liability, and hope that some of the irresponsible
judges in this country will allow those cases to go to the jury. Then
on appeal, they hope irresponsible appellate lawyers and activist
judges, will ignore the law, ignore every basic instinct of the law,
and allow those lawsuits to go forward. And they hope their friends on
the Supreme Court will ignore the law as well and through activism do
whatever they believe is right, as many of the judges on the Ninth
Circuit Court of Appeals do every day. They ignore the law completely,
do whatever their gut tells them ought to be done, even though most of
the time their gut is filled with legalistic ulcers.
The fact is, that is not the way the law should run. That is not the
way it should operate. Lawyers should be ashamed to bring these type of
cases. In this particular bill, we protect the consuming public and
others from irresponsible misuse of firearms. We protect them from
irresponsibility on the part of any gun manufacturer. That needs to be
said, and it needs to be said over and over.
The fact is, what we have is a lot of very liberal thinkers who think
that guns should not be owned by anybody, or they should be owned only
by a few--I guess those who have been to some sort of anti-gun college.
The fact is, most Americans own guns, most Americans value guns, most
Americans believe in protecting themselves and their families. Where we
have the most guns, that is where we have the lowest amount of crime.
Everybody knows I have brought a bill to the Senate to allow guns to
be kept in the home in the District of Columbia, which many refer to as
Murder Capital USA. I don't want to bring that up as an amendment on
this. I might have to, if some of these irresponsible amendments filed
pass. We know the only way this bill is going to make it to the
President's signature is if it doesn't have any other amendments on it.
But if any others pass, I think we ought to vote on that one as well.
Because, to be honest with you, I have had hundreds of DC residents
call me and say thank God somebody is acting in our interests, where we
can at least protect our homes.
That is how bad it is. We have people who just don't believe in guns,
don't believe in sportsmanship, don't believe in the right to collect
guns, who are going to be against them for political reasons because
they think there are political advantages for them. Frankly, I think
they are going to find there are not any political advantages for them
because most people in our country believe in the right to have their
own arms. Most people hunt and fish. Most people are proud of the fact
they can take their young boys or girls out and have target practice
and shoot guns.
The fact is, the vast majority, the highest percentile in the world,
use guns responsibly in this country. For those who do not, I am for
coming down very hard against them. For those who misuse guns in the
commission of crimes, you can't get any tougher on crimes than Orrin
Hatch is. Frankly, we passed legislation around here, anti-crime
legislation, Senator Biden and myself and others, that literally goes
hard on those who use and misuse weapons and use them in criminal
activity. That is what we should be doing. But we certainly ought not
to allow spurious, frivolous lawsuits brought against gun manufacturers
who have done nothing wrong other than make guns the American people
would like to own.
With that, I don't mean to demean anybody on the floor. All I can say
is that for the life of me, I can't understand why anybody would be
against this bill who understands the law and
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understands the way the law should be applied. Frankly, I am amazed
that some are. There were 22 who voted against cloture this morning.
That was unbelievable. The fact of the matter is, cloture should have
been invoked 100 to zip, but that is how far this issue has denigrated,
to the point where it is just a political issue in the eyes of some.
It is time to get rid of the politics and understand the American
people are not going to put up with that kind of stuff, and they should
not. The law should not be used in the frivolous fashion some of these
personal injury lawyers use it. There are a lot of great personal
injury lawyers out there and there are a lot of great trial lawyers who
do what is right and who would not think for a minute of bringing these
frivolous lawsuits against gun manufacturers who are not responsible
for the misuse of their weapons. When they are irresponsibly brought,
this bill takes care of them. It says you are going to pay for it.
But when they are not responsible for the misuse of their weapons,
why in the world would we allow litigation to be brought, just because
the trial lawyers might support us? There is a certain point where any
good thinking person has to say: Look, the law is more important than
just emotion. Unfortunately, most of the arguments used against this
bill are emotional arguments that really have no place in the area of
law. Frankly, they should not be paid very much attention.
I yield the floor.
Mr. REED. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant Journal clerk proceeded to call the roll.
Mr. DASCHLE. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered. The
minority leader is recognized.
Mr. DASCHLE. Mr. President, the legislation we consider today
attempts to strike a careful balance between the safety of Americans
and the rights of gun manufacturers and dealers. As I have said on many
occasions, the vast majority of gun owners, manufacturers, and sellers
are honest and certainly obey the law. Moreover, the firearm industry
is an important source of jobs and tax revenue for our country. It is
wrong, and it is a misuse of the civil justice system, to punish
honest, law-abiding people for the illegal acts of others.
At the same time, Americans who are injured due to defective products
have a right to seek justice in the courts. In our efforts to protect
the gun industry from meritless lawsuits, we should take care not to
invalidate legitimate claims from being heard in court. There are
several ongoing cases that involve product defects or cases where
manufacturers or gun dealers may actually have broken the law, and
those victims have a right to be heard.
As this bill was being written, many individuals raised concerns that
the bill failed to consider the many important claims of victims of
defective products or illegal actions. Because of these concerns, I
have worked with my colleagues, Senator Craig in particular, Senator
Baucus, and others to draft a commonsense, bipartisan amendment that
improves this legislation by providing stronger protections for
meritorious cases. This amendment is not perfect, but it goes a long
way toward balancing both the rights of victims and the needs of the
gun industry.
Our amendment makes several important changes. First, the language in
the original bill forced plaintiffs to prove defendants knowingly and
willfully broke the law before a suit could proceed. This is a high
standard that would deny many victims the right to pursue legitimate
claims. The amendment we now offer removes this language, to ensure
cases in which Federal or State firearms laws have been broken can move
forward without meeting an artificially high threshold of proof.
Second, as originally drafted, the bill created a few exceptions,
where gun manufacturers' and dealers' immunity would not apply. These
exceptions were tailored too narrowly. In fact, one of the exceptions
could have invalidated cases in which an individual had sold a firearm
to someone who committed a drug offense or violent crime simply because
the individual had not yet been convicted of that offense. This
amendment, our amendment, modifies this language to ensure these bad
actors would not be protected from accountability merely because they
were not successfully prosecuted.
Third, when a gun is defective, the manufacturer should be held
responsible. However, as originally drafted, the bill limited product
liability to such degree that it would be virtually impossible to bring
cases against manufacturers. Our amendment provides greater protection
for product liability cases, so, in particular, if a child is injured
by a defective gun, the victim's loved ones can hold those responsible
accountable.
Fourth, the original legislation did not specifically address
businesses that sell to the straw purchasers; that is, people who buy
guns only to resell them in the black market to criminals or children.
With this amendment, the bill would include a provision to remove
immunity from those dealers who sell to so-called straw purchasers.
Fifth, the amendment Senator Craig and I will offer addresses
concerns about this bill's definition of trade associations. Many
advocates indicated that, as drafted, even extremist organizations
could have obtained immunity. Obviously, this is not the intent of the
bill's sponsors, nor is it the intent of the gun industry. Therefore,
we modified the definition to ensure that only trade associations
connected to the business of manufacturing and selling firearms would
be covered.
The Protection of Law Commerce in Arms Act, as amended by the
Daschle-Craig amendment, strikes a meaningful balance between the
rights of legitimate business owners and the rights of individuals who
have been injured by gun violence. The Senate achieves the goal of
protecting manufacturers from illegitimate lawsuits, while maintaining
the rights of victims to hold those responsible for their injuries
accountable.
With the inclusion of our amendment, immunity will not cover a number
of cases including those where a dealer sells a gun to someone who is
prohibited from owning a gun, whether not they have been convicted of a
crime; a dealer sells a gun to a juvenile or to an undocumented alien;
a manufacturer develops a defective gun that injuries a child; or where
a dealer fails to report the theft of a gun as required by law.
In each of these cases, a business loses its immunity only as a
result of its own actions, not the actions of a third party.
The cosponsors of this amendment have worked hard to ensure that the
gun immunity bill does not inadvertently harm important cases.
The principle of equality before the law demands that everyone--
individuals and businesses alike--can be held accountable for their
actions.
This legislation should not provide blanket immunity that protects
``bad actors.'' By striking a more sensible balance, my amendment
strives to preserve the long-term vitality of an important American
industry, while protecting the rights and the safety of the American
public.
I hope my colleagues, when the legislation is offered later, will
support it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, I thank Senator Daschle, our minority
leader, the Senator from South Dakota, for the cooperative way in which
he has worked with us to, in his own words, improve, narrow, clean up
this piece of legislation.
As I have already said on the floor today, a good number of times,
the Daschle amendment--the effort that S. 1805 seeks to accomplish--is
a very narrow way of protecting law-abiding, legitimate firearm
manufacturers and dealers, but not to stand in the way of access to the
courts as a result of somebody being harmed by somebody who has acted
illegally as a licensed dealer or a firearms manufacturer.
I truly appreciate the Senator's efforts in behalf of this very small
community of folks in the industry of manufacturing quality firearms.
It is critical for our Nation, for law-abiding citizens, and for our
national security. The Senator has seen that and understood it, and we
will work now to hopefully get this bill before us soon this afternoon
so amendments can be offered. I think the Senator has been
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ready to do that. That will move us down the road toward hopefully
final debate and a vote on this legislation.
The PRESIDING OFFICER. The minority leader.
Mr. DASCHLE. Mr. President, I appreciate the kind words of the
Senator from Idaho. I also share his view that it is important we move
to the bill so we can begin entertaining amendments. I think there are
a number of thoughtful amendments which deserve our consideration. The
sooner we move to the bill, the sooner we can begin the amendment
process. Some will pass and some will be defeated, but I think it is
critical we get on with that debate and offering amendments today. It
is 4 o'clock. We have had a good debate about the motion to proceed,
and certainly about the bill itself. It is my hope that not in the too
distant future--sometime perhaps within the hour--we might move to
allow floor amendments. I would certainly be prepared to offer mine at
that time.
I yield the floor.
Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant Journal clerk proceeded to call the roll.
Mr. CRAIG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so
ordered.
Mr. CRAIG. Mr. President, the leadership of both sides of the aisle,
at the moment, is working to try to see if we can gain a unanimous
consent request that would bring us to the bill hopefully within the
hour and possibly deal with one or two amendments, and at least one
amendment voted up or down; and then the laying down of another
amendment at least this evening and starting debate on that.
So I thought for a few moments I would give a little background as to
what has brought us to this point in time and S. 1805.
Senator Daschle was in the Chamber a few moments ago to visit with
the Senate about his amendments and what we effectively incorporated in
the bill. He has some fine-tuning he may offer as one of the first
amendments this evening.
But when Senator Baucus and I introduced S. 695 back in the spring,
more than half of the Senate--Republicans and Democrats--became
original cosponsors. Today we have 55 cosponsors, including the
leadership on both sides. A similar bill, H.R. 1036, was passed in the
House of Representatives by a 2-to-1 margin over a year ago.
Now we have before us S. 1805, again, very similar to what we did in
1995, but with some adjustments made with the Senator from South
Dakota. This is an extraordinary showing of support for a bill. I
believe it is a testament to the gravity of the threat addressed by
this legislation: The abuse of our courts through lawsuits filed to
force law-abiding businesses to pay for criminal acts by individuals
beyond their control.
The businesses I am talking about are collectively known as the U.S.
firearms industry. The lawsuits I am talking about claim that even
though these businesses complied with all of the laws and sell a
legitimate product, they should be responsible for the misuse or the
illegal use of the firearm they produce, misused by a criminal. These
actions are pursued with the intent of driving this industry out of
business--regardless of the thousands of jobs that would be lost in the
process and the impact on citizens across the Nation who would never
contemplate committing a crime with a gun.
Let's be very clear about this. These lawsuits are not brought by
individuals seeking relief for injuries done to them by anyone in the
industry. Instead, this is a politically inspired initiative trying to
force social goals through an end run around the Congress and the State
legislatures.
I believe that is worth repeating because it is the essence of the
legislation. Instead, I believe these lawsuits are politically inspired
initiatives trying to force social goals, or public policy, if you
will, through an end run around the Congress and the State
legislatures.
The theory on which these lawsuits are based would be laughable if it
were not so dangerous: To pin the responsibility for a criminal act on
an innocent party who was not there and had nothing to do with the act.
They argue that merely by virtue of the fact that a gun was present,
those who were part of the commercial distribution chain should be held
responsible for the gun's misuse.
Earlier today, I talked about all kinds of chains in commerce--
automobiles, and other vehicles, and other tools that are used
tragically enough sometimes or misused in a way that they take a human
life. What about a baseball bat? We hear, every so often, of a baseball
bat used in the commission of a crime in which the baseball bat or the
use of it struck a person and killed them. Should we make a person who
manufactured that baseball bat liable or should we do that which we
have always done in this country: made the individual responsible for
his or her action?
This is not a legal theory. It is just the latest twist in the gun
controller's notion that it is the gun, and not the criminal, that
causes the crime; it is the car, and not the drunk driver, that kills
the child it runs over.
The truth is, there are millions of firearms in this country today.
Yet only a very tiny fraction of them are ever used in the commission
of a crime. The truth is, again and again law-abiding firearms owners
are using their guns, often without ever firing a shot, to defend their
life or the lives of their family and their property. That is what the
second amendment is all about. That is why this right is ingrained
within the character and the culture of this country. The truth is, the
intent of the user, not the gun, is what determines whether that gun
will be used in a crime. A gun can be nothing but a piece of metal
until it is used carefully and wisely by an individual in defense of
themselves or in hunting by the expertise of the shooter, or it can
become a very lethal weapon in the hands of a criminal in the taking of
a life.
The trend of abusive litigation targeting the firearms industry not
only defies common sense and concepts of fundamental fairness, but it
would do nothing to curb criminal gun violence.
Let me repeat that. Does it stop gun violence in this country? No, it
does not. The only way you do that is to sweep our country clean of the
millions of firearms that are owned out there, and certainly take them
out of the hands of criminals. But we know that is a near impossible
task, too. Furthermore, the trend jeopardizes America's
constitutionally protected access to firearms for defense and other
lawful uses.
The bill that more than half of the Senate has already endorsed is a
measured response that would put a stop to this abusive trend without
endangering legitimate claims of relief. Let me emphasize that it does
not insulate the firearms industry from lawsuits or deprive legitimate
victims of their day in court, as some critics have already charged.
Nowhere in S. 1805 is there a padlock on the courthouse door. Quite
the opposite. If this becomes law, this is the law that will be argued
in court by some as to why a given lawsuit ought to be thrown out. And
we trust the judge, wise and learned, will listen to all of those
arguments and make a decision as to whether the lawsuit goes forward
because it is legitimate within the law or it is simply just that,
frivolous, it is not legitimate within the law, and it ought to be
denied or cast aside.
Again, let me emphasize, it does not insulate the firearms industry
from all lawsuits or deprive legitimate victims of their day in court,
as some critics would, in fact, argue, and has been already argued
several times on the floor today. In fact, it specifically provides
that some actions can be brought against those in the business of
manufacturing and selling firearms when they violate the law or act
wrongfully themselves.
Earlier today, I went through those five areas that we have clearly
identified in the law where action can be taken. Senator Daschle has
even refined that a little more to make sure all is clear in this given
area. Actions based on breaches of contract, defects in firearms,
negligent entrustment, criminal behavior--these actions would not be
affected by this legislation. The laws there are already clear. People
are
[[Page S1571]]
being tried today in the courts based on those laws, and S. 1805 in no
way would wipe them aside or cause a different action.
S. 1805 is solely directed at stopping frivolous politically driven
legislation against law-abiding individuals for the misbehavior of
criminals over whom they have no control. The courts of our Nation are
supposed to be forums for resolving controversies between citizens and
providing relief where warranted, not a mechanism for achieving
political ends that are rejected by the people's representatives--the
Congress or the State legislatures.
I believe that is the fundamental essence of 1805. It is direct. It
is clearly to the point. It ought to be. I am pleased that 75 Members
of the Senate earlier today said let's move this legislation to the
floor. Let's begin the process. Let's vote up or down. Let's keep the
bill clean and deal with this critical issue.
Once again, let me talk for a few moments about those exceptions we
have carved out or defined within the law in the bill to make sure
there is no question. The key to S. 1805 is the definition of qualified
civil liability action which is addressed in the definitions section,
section 4. I ask all of my colleagues to go there and read it. It is a
simple bill, an easy bill to read, of 11 pages. But we made sure that
we clearly spelled out a qualified civil liability action, which is
defined as a lawsuit brought by any person against a manufacturer or a
seller of a qualified product or a trade association for damages
resulting from the criminal or unlawful misuse of a qualified product
by a person or a third party.
Section 4, subsection 5, the definition then excludes five categories
of lawsuits from coverage under 1805. In other words, we make very
clear these following areas:
No. 1, an action brought against a transfer convicted under section
924(h) of title 18 United States Code, or a comparable or identical
State felony law, by a party directly harmed by the transferee's
conduct. In other words, illegal movement of the weapon itself.
An action brought against a seller--this is the second one--for
negligent entrustment of negligence per se. Negligent entrustment is
defined in section 4, subsection 5(a), as the supplying of a qualified
product by a seller for use by another person when the seller knows, or
should know, the person to whom the product supplied is likely to, and
does, use the product in a manner involving unreasonable risk of
physical injury to the person and others. Misuse of the firearm,
knowing that is going to happen. That is what Senator Daschle spoke to
so clearly today in his clarifying amendment.
The third item, an action in which a manufacturer or seller of a
qualified product knowingly and willfully violated a State and Federal
statute applicable to the sale or marketing of the product and the
violation was a proximate cause of the harm for which relief is sought.
No. 4, the action for breach of contract or warranty in connection
with the purchase of the product.
No. 5, an action for physical injury or property damage resulting
directly from a defect in the design or manufacturing of the product--
in other words, product liability--when used as intended or in a manner
that is reasonable and foreseeable.
And then, as I mentioned, the Daschle language amends the text to
permit suits against manufacturers or dealers engaging in straw
purchase transactions. That is, when one individual purchases a firearm
on behalf of a third party.
Why did we spell these out? We wanted the Senate and the citizens of
our country to understand that this was not broad, nor was it sweeping.
At the same time we wanted everyone to understand that what we were
saying very clearly is something that has been said time and time again
as it relates to the value of this legislation; that is, the
reenforcement of centuries of legal precedent based on individual
responsibility, not responsibility for actions of third parties. In
other words, if you manufacture a product legally in our economy and it
sells and someone misuses it and a life is taken with the misuse of
that product, should we be able to come back through the court to the
person who produced it when they abided by the law and in no way knew
that the product would be used with the intent of harming someone?
That is the basis of individual responsibility in our country and, as
I said, of centuries of legal precedent based on individual
responsibility and not the responsibility of the actions of third
parties. Many judges have already rejected these suits that have been
brought. Antigun activists are trying to distort tort law by creating
totally new and expansive theories of liability to win restrictions
that have been rejected in the legislative process.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. CRAIG. I ask unanimous consent that I be yielded Senator Nickles'
hour under rule XXII.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, I thank Senator Nickles for generously
yielding me his hour. In a postcloture environment, the sponsors of the
legislation are allowed 2, individual Senators are allowed 1. I didn't
realize I had already spoken that much today.
Having said what I have just said, I hope I have laid a clear and
unambiguous basis to why we are here today and why this legislation is
sponsored and supported by so many groups across the United States: the
United States Chamber of Commerce; the United Mine Workers of America;
National Association of Wholesaler Distributors--and the list goes on--
the National Association of Manufacturers; the Boone and Crockett Club;
the Buckmasters American Deer Foundation; the Campfire Clubs of
America; Congressional Sportsmen's Foundation; Council of Wildlife
Management and Education; Dallas Safari Club; Foundation for North
American Wild Sheep; Hunting and Shooting Sports Heritage Foundation;
International Association of Fish and Wildlife Agencies; International
Hunter Education Association; Izaak Walton League of America; Mule Deer
Foundation; National Rifle Association; National Shooting Sports
Foundation; National Trappers Association; National Wild Turkey
Federation; Pheasants Forever; Pope and Young Club; Quail Unlimited,
Rocky Mountain Elk Foundation; Ruffed Grouse Society; Safari Club
International; Texas Wildlife Association; the Wildlife Society; U.S.
Sportsmen's Alliance; White Tail Unlimited; Wildlife Forever; Wildlife
Management Institute; the Sports Fishing Association of America;
America Tort Reform Association; National Association of Independent
Insurers; National Alliance of American Insurers.
Here is something I found most interesting. We began to debate it on
the floor today. Representatives from the International Association of
Machinists and Aerospace Workers of East Alton, IL. Why? Because many
of their members are employed in the Savage Arms Company in Westfield,
MA, where they have already lost some 340 jobs over the last few years
because that arms company has been so weakened by some of these
lawsuits. They have had to pay out since 1999 over $425,000 as the cost
of being at court with some of these lawsuits.
They are obviously concerned about their jobs. Somebody scoffed a bit
this afternoon that I am standing here talking about jobs, that this is
some kind of a jobs bill. It is just that. These industries are at risk
today. They are not huge, deep-pocket industries. If we put every gun
manufacturer in this country all together, they would make up, in total
assets, less than a Fortune 500 company. So they are extremely
concerned.
The aerospace workers in Waltham, MA, in Chicopee, MA, along with
Westfield, MA, the United Mine Workers, again the United Steelworkers
from Gainseville, FL--all of them have spoken to it. The United Auto
Workers have employees at the Colt plant in Newington, CT. Today they
say, and I read from their letter:
We have 383 members from the Colt workforce. By comparison,
about 5 years ago, we had over 600 Colt workers who were
members of our local. Our members built the finest small arms
in the world, including M-4 carbines, M-16 rifles, and M-203
grenade launchers.
Obviously, those are not civilian weapons, they are military weapons.
Those are the kinds of tools that our men and women use in Iraq today
in defense of themselves and in defense of our freedoms. Many of them
provide
[[Page S1572]]
the U.S. military and law enforcement. Our law enforcement people
carry, in most instances, American firearms at their side.
Do we really want, by forcing these industries out of business,
Chinese or Yugoslavian or Hungarian firearms to be packed by our
military? Some would say: Senator Craig, you are just exaggerating. No,
I am not. If ever one of these frivolous lawsuits would find root and
grow, the kinds of millions of dollars in potential settlement for an
argument that a criminal act caused by a third party was ultimately the
result of an individual manufacturer who operated in a legal way could
easily put them out of business because they simply do not have the
kind of depth that, for example, the tobacco industry had years ago
when these kinds of lawsuits began to be won against that industry.
Others have been tried in a variety of industries, but there is a
reality, and that is why unions are now stepping forward as strong
supporters of this legislation saying: Wait a moment, enough is enough.
As long as our companies are legal and responsible and producing
quality products, leave us alone, unless we act in a criminal fashion
or in violation of Federal law in this country.
I cannot blame them for asking it. I believe they should ask it, and
I believe we ought to grant that right. That is what S. 1805 does.
There are a good many issues we will be discussing over the course of
this debate. My guess is there will be a variety of amendments offered.
I find it interesting that this debate gets us to where we are today.
Let me cite something that is interesting, and I will bring some
charts to the Chamber probably within the next day. Here is a question
asked by the political studies at Southern Methodist University and the
Zogby poll people in examining the differences in thinking between
people who lived in the States who voted for George Bush in 2000, the
red States, and those who voted for Al Gore, the blue States. Think red
and blue here for a moment. We all saw those maps after the election,
so we begin to think in reds and blues.
Here was the question asked by the Zogby poll people. I don't think
you would call Zogby a conservative pollster. He is either center left
or is certainly viewed by most as not being conservative. Let me stop
there.
Here is a question asked by the Zogby pollster:
Do you agree or disagree that American firearm
manufacturers who sell a legal product that is not defective
should be allowed to be sued if a criminal uses their product
in a crime?
The answer came back showing a phenomenal result. Opposition in the
States that voted for President Bush, the red States, was 74 percent.
In other words, 74 percent said that gun manufacturers that operate in
legal ways ought to be protected. And in Al Gore States, 72 percent, a
2-percent difference. One could almost say that a vast majority of
Americans agree with the essence and the principles of S. 1805. I found
that very interesting.
Interestingly, across the board, those most strongly opposed to these
lawsuits against the firearms industry are currently members of the
military and their families.
There has been a lot of talk about our military these days because we
have phenomenally brave men and women standing in harm's way in Iraq,
Afghanistan, and other parts of the world. Our military said: We oppose
frivolous lawsuits of our gun manufacturers by 83 percent. That was a
Zogby poll taken earlier this year of 1,200 voters nationwide. So I
find it interesting that opposition occurs to the very narrow approach
we have taken when all of these large numbers begin to appear.
Zogby also asked this question:
Which of the following two statements regarding gun control
comes closer to your opinion? Statement 1: There needs to be
new and tougher gun law legislation to help in the fight
against gun crime. Statement No. 2: There are enough laws on
the books. What is needed is better enforcement of current
laws regarding gun control.
By a better than 2-to-1 margin, 66 to 31, voters nationwide agreed on
statement 2; that is, there are enough laws on the books. What is
needed is better enforcement of current laws regarding gun control.
Overwhelmingly, Americans are now speaking out very clearly on gun
issues. They are also overwhelmingly speaking out against frivolous
lawsuits of the kind that we have seen now launched against this
industry. Some 30-plus have been filed. Some are still pending. Some
are on appeal. Some have already been thrown out by judges.
That is why we are here today. It is time that Congress stands up and
speaks to clarify and disallow the gaming of the system, if you will,
by some who want to line their pockets first and, oh, if there is a
little bit left, maybe the victim or at least the person in the name
the suit was brought would gain some benefit, but large compensation to
those who have a license to argue before the courts of the land. That
is the reality of what we are dealing with.
I close by saying that we do not block lawsuits that are responsible,
that are within the law as we see it today and that we understand have
a legitimacy because some manufacturer or some dealer acted beyond and
outside the law in a criminal fashion that causes us to suggest that
their misaction means they ought to pay the price for that misaction
because someone else paid dearly by the use of that firearm.
Those are the fundamental issues before us in this debate, and I
think it is important we have these votes. I hope within the next few
minutes or within the hour we will have an agreement that allows us to
move forward and possibly go to an amendment tonight, and then we will
be back tomorrow for the balance of at least Thursday dealing with
other critical votes on this issue.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REED. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Collins). Without objection, it is so
ordered.
Mr. REED. Madam President, I ask unanimous consent, under rule XXII,
that Senator Sarbanes' hour be yielded to me as manager on the
Democratic side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REED. Madam President, may I inquire as to how much time is
remaining overall?
The PRESIDING OFFICER. The Chair informs the Senator that there are
24\1/2\ hours remaining.
Mr. REED. Madam President, how much time is reserved for the
Democratic side?
The PRESIDING OFFICER. The Senator has 82 minutes remaining.
Mr. REED. I yield the floor, retaining my time, and I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. BINGAMAN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BINGAMAN. Madam President, I ask unanimous consent that I be
allowed to speak for up to 15 minutes as in morning business.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator is recognized.
Advanced Technology Program
Mr. BINGAMAN. Madam President, right before the last recess I came to
the floor to address the need for a revitalized science and technology
policy in the country. One example that I gave of the current
administration's inattention to science and technology and high-wage
job creation was the proposal in the budget that we received a couple
weeks ago to eliminate the Advanced Technology Program, or ATP, in the
Department of Commerce. This is in the President's fiscal year 2005
budget request.
In my view--as I stated it then; and I want to repeat it now--
eliminating the Advanced Technology Program makes no sense. Even the
administration's own budget justification, which clearly praises the
program, makes clear that the program is valuable.
The Advanced Technology Program has been a constant target over the
[[Page S1573]]
years of those who would like to kill the program for philosophical
reasons. But I believe those of us in Congress need to make decisions
about Federal programs on a logical basis and on the basis of the good
that those programs are doing for the people we represent.
So I believe we should examine the Advanced Technology Program by
asking two fundamental questions. First, should our Government be
sponsoring an Advanced Technology Program at all? And second, is the
Advanced Technology Program we are talking about an effective program
for advancing technology development in our country?
In discussing the need for a Government role, a basic principle with
which nearly everyone would agree is that a Government role makes sense
when there is a market failure of some sort. When it comes to advanced
technology, there is ample empirical evidence of a critical gap between
the point at which Federal support for basic research ends and the
point at which private capital market support of product development
begins.
Now, let me try to illustrate that by referencing this chart. This
chart is called the ``Valley of Death'' just to try to wake up my
colleagues to the fact that this is an important issue. Here, looking
at this vertical axis, we are showing the invested money. Along the
horizontal axis, we are showing the various stages of developing a
technology-based product for use.
The Government does invest a fair amount of money in basic research.
That is shown over here at the left, in the beginning stages of
developing a product or developing a technology. Here we show labs and
universities. Our Federal Government does invest a substantial amount
in that area, and that is certainly commendable. Of course, many of my
colleagues would argue that we do not invest enough there, and I would
agree with that, but that is a subject for another day.
Industry invests most of its research and development dollars at the
other end of this development continuum and invests those funds on
commercializing short-term, low-risk, reliably profitable products, and
then making incremental improvements on those products which they are
fairly confident they can make a return on in the market.
In between these two stages of the research and development process,
we have what many in the industry call the ``Valley of Death.'' That is
the gap where our private capital markets fail to invest applied
research dollars to create preproduct, so-called platform technologies.
This market failure occurs because such generic technologies are too
expensive or they are too risky for industry to develop on its own.
At the same time, it is precisely these generic, platform
technologies that are the seed corn for new products, and in many cases
new market categories. The benefits to industry generally and to our
national economy far outweigh the costs of developing such
technologies.
In the case of defense technologies, the Federal Government is the
ultimate customer, and programs such as the Defense Advanced Research
Projects Agency--the work that they fund in DARPA in the Defense
Department--plays an important partnering role with defense contractors
and high-technology firms.
But for technologies with predominantly civilian applications, the
Federal Government does not have the strong customer stake in
developing specific technologies. So filling in this funding gap in the
``Valley of Death'' is precisely the role that the Advanced Technology
Program plays for civilian technology.
That brings me to the second question that I outlined earlier. That
is, is this advanced technology program an effective program for
promoting these new platform technologies? Some in the Congress have
reacted over the years to the ATP as if it were some sort of Federal
program to help Gillette make a five-bladed razor or to help Microsoft
write Windows 2006. This is not an accurate description of the ATP by
any stretch.
Let me give a few examples of actual ways in which the Advanced
Technology Program has succeeded in bridging the ``Valley of Death''
for U.S. industries with a resulting positive impact on our economy and
our global competitiveness.
In 1991, the Council on Competitiveness characterized the U.S.
printed wiring board industry as losing badly or lost. That was their
description. By this they meant the U.S. was not likely to have a
presence in that industry within 5 years. It attracted little private
venture funding. Only a handful of the 700 firms in the industry had
the capability to undertake advanced research. Through the ATP, a new
joint venture between the printed wiring board industry as a whole and
the Government was formed that would not have occurred otherwise. The
new manufacturing technologies that were developed in the joint venture
yielded an estimated cost savings for industry in excess of $35
million.
Another example: In the past, U.S. car makers tolerated dimensional
variations of up to 5 or 6 millimeters. That is a level that often
complicated the assembly process. It required custom manual reworking,
and compromised vehicle fit and finish, as it was referred to in the
industry. An advanced technology project was put together with the U.S.
auto industry, reducing this variation to less than 2.5 millimeters by
inventing an array of new technologies. This one project is credited
with increasing the U.S. gross domestic product by over $200 million
and creating 1,400 jobs. In short, empirical research demonstrates this
project helped increase the demand for domestically produced vehicles
and helped domestic producers stem the loss of market share to offshore
manufacturers.
The Advanced Technology Program has also been called the godfather of
the DNA diagnostic tool industry. That is another example which clearly
my colleagues should look into before they follow the administration's
recommendation and try to terminate this program.
The Advanced Technology Program was making investments in
nanotechnology long before it became a household word, along with
investments in homeland security and bringing fuel cells and solar
cells and microturbines to the marketplace. In 2003, the White House
sponsored a fuel cell demonstration and the President tested a long-
life mobile phone. Let me put another chart up here. You might
recognize this photo. The President was testing a long-life mobile
phone powered by advanced fuel cell technology. Without the Advanced
Technology Program, MTI microfuel cells would not have been able to
develop this breakthrough technology to power this very phone. So that
is another example.
As I have tried to make amply clear, there are many examples of ATP
successes. There are certainly also other examples where ATP projects
have not been successful. That is the nature of a high-risk, high-
payoff research program. But let's put the successes and the failures
in the overall context.
The total cost of ATP funding to date has been about $2.1 billion.
That is over the life of that program. All told, the preliminary
results of a 2003 ATP survey of over 350 companies indicates the actual
economic value resulting from ATP joint ventures exceeds $7.5 billion.
The benefits from just a few projects analyzed to date are projected to
exceed $17 billion, when those platform technologies are fully
exploited by the industries involved.
ATP has also been the subject of a recent overall assessment by the
National Academies of Science and Engineering, and the core conclusions
of this 2001 study speak strongly both to the success of the program
and to the generic focus of the program. The national academies
concluded the ATP was an effective partnership program at the generic
technology level. The academies specifically found the selection
criteria applied by the ATP enabled it to meet broad national needs and
to help ensure the benefits of successful awards extend across firms
and industries. The national academies have also found the ATP peer
review of applicants for both technical feasibility and commercial
potential was effective in targeting promising new technologies that
were unlikely to have been funded through the normal operation of the
capital markets.
I could go on and on about the conclusions of the national academies
study. Let me just say the reality is industry will not fill the void
the President would create if his budget proposal to kill this Advanced
Technology
[[Page S1574]]
Program were agreed to. Given industry's increased emphasis on short-
term applied R&D and consequently reduced emphasis on early phase
technology research, the elimination of the Advanced Technology Program
would simply trigger the further erosion of U.S. technology leadership
and lead to even greater loss of high-technology, high-wage jobs in the
future.
I would like to end with a quote from David Morgenthaler, former
president of the National Venture Capital Association. The members of
the National Venture Capital Association account for around 80 percent
of the venture investment taking place in the United States today.
David Morgenthaler says:
It does seem that early stage help by the government in
developing platform technologies and financing scientific
discoveries is directed exactly at the areas where
institutional venture capitalists cannot and will not go.
When experts in venture capital and leaders in industry and our
National Academies of Science and Engineering all agree the Advanced
Technology Program plays a unique and valuable role in supporting our
high technology competitiveness, we ought to pay attention.
I hope all my colleagues will join me in resisting the unwise
proposal which we have been given by the President to terminate the
Advanced Technology Program. ATP has demonstrably contributed to
maintaining our manufacturing strength. A strong and well-funded
Advanced Technology Program will help the United States remain
competitive in high tech manufacturing in the future. Instead of ending
this program, we should look for ways to duplicate its strengths in
other civilian technology areas such as energy and environment and
homeland defense.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. Madam President, returning to the gun immunity bill
that is being presented, this is legislation that is being bullied
through the Congress.
I have been here a long time, now going into my 20th year. This is
one of the most outrageous pieces of legislation I have ever seen. We
have never seen such a complete sellout. This is like a fire sale to a
special interest lobby.
The bill is absolutely a free pass. It says to the gun industry: Do
anything you want, and you have no one who can punish you by going to
our court system, established effectively by our Constitution. They can
do whatever they want, no matter how negligent, reckless, or
irresponsible.
Of all the people in society to provide special protections to, why
in the world would we give immunity from redress to this industry?
This immunity bill says even reckless behavior--forget about
negligence. Negligence says I didn't mean to do it, but I didn't check
on the process. Reckless behavior could be deliberate. There could be
reckless behavior in the manufacture, sale, or distribution of guns. No
matter how destructive the result is to life and limb of innocent
people, the victims of that conduct cannot hold you accountable. It
just does not make sense.
We hear this claim from our friends on the other side about
``frivolous lawsuits'' is how they describe it. Frivolous lawsuits--
lawsuits that, frankly, are far from frivolous because the damage is
beyond description when a family loses a child, a father, a brother, a
mother, or a sister, or some child is permanently injured and cannot
function normally. Frivolous? I don't call that frivolous. These are
valid claims of wrongdoing by an industry that puts profit ahead of
human life, and we can't let them go without consequence.
Let us ask the gun victims if their lawsuits are frivolous. Ask those
who have lost loved ones at the hands of the DC area snipers just over
a year ago. And talking about the DC snipers, they were prohibited by
law from buying guns. Under law, they could not sell guns to Lee Malvo.
He walked into a gun shop and walked out with a sniper rifle. A sniper
rifle is a pretty big piece of equipment.
I invite my colleagues to look at this image. This chart says they
lost 237 guns; 237 guns for which they have no responsibility to
account. They said: Gee whiz, how do you like that, we lost all these
lethal weapons that may have just kind of walked out or fallen down a
crack in the floor someplace. It is outrageous--including one of those
weapons that wound up in the hands of those who committed these
atrocities, Lee Malvo and John Muhammad.
This is a picture of a gun shop that has become all too familiar. It
is called the Bull's Eye Shooter Supply. They lost the guns.
In the wake of the sniper case, we now know that in addition to
losing hundreds of guns from their inventory, this gun shop cannot
locate the firearms sales records they are required by law to keep to
help police solve crimes. Those records that were recovered showed that
Bull's Eye frequently sold numerous guns to individual buyers, a sure
sign of phony straw purchases. But obviously this rogue gun store
looked the other way.
According to ATF records, between 1997 and 2001, guns sold by Bull's
Eye were involved in at least 52 crimes, including homicides,
kidnappings, and assaults. Guns in 52 crimes were traced back to this
one gunshop.
Under this gun immunity bill, Bull's Eye gets a free pass. They would
not be accountable to victims of their negligence, and it is a
despicable proposal.
DC sniper Lee Malvo could not have legally purchased a Bushmaster
assault weapon from Bull's Eye. He was too young. But he walked into
the Bull's Eye store in broad daylight and walked out in a short time
with a Bushmaster XM-15. That is the weapon he and John Muhammad used
to murder and injure their victims.
I ask my colleagues to take a look. How could he get behind the
counter, walk out with a weapon, and not be noticed? It was captured on
film, but they didn't see it. What an odd coincidence that is.
It is outrageous. It is an insult to the intelligence of anyone who
looks at this picture to know this weapon could not have disappeared
without being noticed. Look at the size of it. It tells the story. But
then I guess what is being asked for is sympathy for this gun shop,
this place that let the murder weapon out of its sight and into the
hands of these madmen who shot people at random.
Let them get away with that, with no repercussion, no lawsuits: You
injured my child, you injured my husband, you injured my wife? People
were shot sitting alongside their mates, and we want to protect them?
What do we have to protect them for? I don't understand it.
To me there is an element of curiosity here that just does not
register. I don't understand the wailing and weeping about how to
protect these guys, these dispensers of murder. It is awful. Yet we
hear the case: Gee whiz, if you had an automobile and a drunk driver
drove it and killed somebody, why should the automobile company be
responsible? We saw that once.
Ford Motor Company made the Pinto. When it was struck from the rear,
it would catch fire. We had people testify. They were so disfigured, it
was painful to look at them. Imagine what it felt like to be one of
them--so disfigured.
They went to the Ford Motor Company and said: Change the design. Ford
had a board meeting supposedly in which they said: Change the design?
Do you know what that is going to cost us? The heck with it. Let's pay
the damages that come from lawsuits. That is the way it goes sometimes.
The automobile is not intended to be a lethal weapon, and we lose a
lot more from fewer of these gun manufacturers every year than we do
manufacturers of cars. We lose over 28,000 people a year, 11,000 of
them homicides, the rest suicides, accidents. That is what happens. We
have millions of cars on the road, and we do not have much more of a
mortality rate with those cars than we have with these weapons. But we
do not try to protect the automobile industry.
We do not try to protect the aviation industry if there is negligence
in an air crash. You can bet people have a right and do take advantage
of the right to get some redress. They don't want the money, for gosh
sakes. They do not want any other families to have to suffer the same
humiliating loss they experienced.
If anyone proposed that we go ahead and say to the airlines: Look,
tell you what, for reckless behavior and one of
[[Page S1575]]
those planes goes down with 200, 400 people on it, we know you really
didn't intend to do that, so, therefore, you ought to be excused. We
are not going to excuse them, and we should not excuse the gun
industry, the people who manufacture these weapons in any form, any
shape, disguises for assault weapons that say this really isn't an
assault weapon. It passes the specifications test, except if you make
an adjustment here in the cartridge carrier or there, it becomes,
effectively, an assault weapon. No, we are saying, no, we are not going
to punish you for that. Go ahead, be careful because people may not
like you, but we are not going to punish you for it.
That is the situation in which we find ourselves.
Do we really believe that in this situation these weapons were lost
or stolen from this store? It is ludicrous. So we should not pretend we
do not know what really happened. What we are doing is closing our eyes
to responsible behavior throughout our Nation. It is obvious they sold
the Bushmaster to Malvo under the table, or however he got it. It is a
pathetic and irresponsible recognition we are giving these people.
Should Bull's Eye be held accountable for their outrageous actions
that resulted in the death of innocent people? The sponsors of this
bill say, no, they should not pay for approximately a dozen deaths. The
sponsors of this bill say, no, this outlet should not be punished for
murder; that, after all, they are okay. They sell things that kill
people or close their eyes to the distribution of weapons.
The sponsors of this bill say, no, if one is negligent, they cannot
be held accountable. It says if they are reckless, they cannot be held
accountable.
The bottom line is there are many victims with valid legal claims who
will have their lawsuits wiped out. It is outrageous.
Today we were visited by a policeman from my home State, the town of
Orange, NJ. He was shot in an exchange of fire with an assailant. He
has a lawsuit in place. He can no longer work at his job. We are
saying, too bad. Why were you standing in the way of that bullet when
it came? Essentially that is what we are saying: Why did you get in the
way of the guy who was going to pull the trigger? You should not have
done that. They should not be punished for their complicity by getting
a gun for this would-be murderer.
This bill before us tells Bull's Eye and their cronies in the
business, keep up the good work; do not worry about it; in the Senate,
we are going to take care of you. We are going to immunize them from
wrongdoing.
Why on God's Earth do they want to immunize these people? I do not
understand it. I have seen pretenses at logic that said, well, we will
have no gun industry to supply our Army. Baloney. Everybody knows that
is a phony argument. They will get their weapons made. We can protect
those who make arms for the military and we can make sure they are
under better care than we see now.
The snipers who did the killing wreaked havoc on our society and now
we want to reward the gun dealer responsible for illegally giving them
their killing weapon with immunity from civil lawsuits. This is absurd.
This Senate is about to make these sniper victims and their families
victims a second time. After all they have gone through and that they
are going through, we are going to pass a bill to take away their
fundamental legal rights. It is reprehensible. There are so many other
people who are going to be denied justice by this bill.
I want to take a moment to tell the Senate about two brave police
officers, one of whom I mentioned earlier, who are going to be
victimized by this bill, Ken McGuire and David Lemongello. They are two
police officers from Orange, NJ, who were shot and seriously wounded by
a criminal who obtained his gun through the negligence of a gun
manufacturer and gun dealer in the State of West Virginia. The criminal
who shot them was barred from legally buying guns, but he was able to
obtain these weapons from a straw purchaser who was sold 12 guns by a
West Virginia gun dealer in a single transaction.
This gun dealer completed the sales in spite of the obvious signs
that the purchaser was not buying the guns for himself. The gun dealer
admitted he was suspicious of the transaction but turned the other way.
Then less than 6 months later, Officers McGuire and Lemongello were
shot by one of those weapons.
Is the police officers' lawsuit against the gun dealer frivolous? A
West Virginia judge ruled the officers' claims are supported by West
Virginia negligence and public nuisance law and that the officers' case
should proceed against the dealer as well as the manufacturer of the
gun who imposed no requirements on its dealers to cut large volume
sales.
If this gun immunity bill is passed, the rights of these two brave
police officers are abolished. To make matters worse, it will allow
other gun dealers to look the other way and complete suspicious sales
because, well, there are not any consequences; we cannot be sued for
our negligence.
I want my colleagues to know Officer Ken McGuire is in the Capitol
today. He is here to ask Senators not to take his rights away, and I
ask my colleagues to give him a moment of their time if he approaches
you.
These lawsuits are the only real way to hold these rogue dealers
accountable because current laws regulating dealers are a joke. The ATF
is restricted to only one announced inspection per year.
In reference to Bull's Eye, I heard the Senator from Idaho say the
shop is shut down now. He is very careful with the things he said, but
I think he made a mistake. It just is not true. Bull's Eye took
advantage of the weak gun dealer laws and merely transferred its
license. They are very much in business. My staff called Bull's Eye
today and they said they are open until 7 p.m. It does not sound to me
as though they are closed. So if someone from the Senate wants to make
a quick trip over there today to pick up an assault weapon, they have
until 7 Pacific time to do so.
There are a host of other cases that would be affected if this bill
is passed. Supporters of this bill will be trampling the rights of
innocent victims who only want their day in court, to which I think
they are entitled.
The supporters of this bill claim the lawsuits against the gun
industry are frivolous. Frivolous? Ask Denise Johnson whether her
lawsuit is frivolous. She lost her husband at the hands of the DC area
snipers. On the morning of October 22, 2002, Denise Johnson said
goodbye to her husband Conrad with her usual ``be careful.'' Neither he
nor her children had any idea this would be their last words to their
husband and father.
This 35-year-old bus driver was shot on October 22 in Silver Spring,
MD. He was standing at the top step of his empty bus when he was hit.
He was killed instantly by the Bushmaster portrayed here that Bull's
Eye ``lost'' to Lee Malvo.
Some have the impression it is only the DC sniper victims and
Officers McGuire and Lemongello from New Jersey who would have lawsuits
blocked by this bill. Unfortunately, there are many other victims of
gun violence with valid cases who would have their suits dismissed. I
ask the sponsors why do they want to do that? Why? Loss of a family
member? Perhaps it is the principal breadwinner in the family. Should
we have the family suffer from now newly found poverty and doing
without the capacity to pay the rent, perhaps be evicted from their
homes? Why do we want to punish them a second time? Was it not enough
they suffered like that the first time? We want to cut away from them
their right to have redress for what took place.
There is Tenille Jefferson. Her 7-year-old son was killed by another
child with a .44 caliber rifle. This tragic shooting occurred because
the gun ended up in the streets after being negligently sold through a
gun dealer to an illegal drug user and gun trafficker.
Then there is Sherilyn Byrdsong who lost her husband, former college
basketball coach Rick Byrdsong, when he was shot and killed as he
walked with their children in Evanston, IL. The crime was committed by
a white supremacist, Benjamin Smith, who targeted minorities in a
shooting spree through Illinois and Indiana. Even though Smith was
prohibited from buying guns, he was able to obtain a gun because of the
actions of a reckless gun dealer.
[[Page S1576]]
This reckless dealer sold one gun trafficker over 70 handguns in less
than 2 years, almost all of them Saturday night specials, commonly used
by criminals. Mrs. Byrdsong's lawsuit is pending in a State court in
Chicago. Other victims of this same shooter have joined the lawsuit. If
this bill passes, their lawsuits are wiped out. I cannot understand why
we would want to do that in this, the Capitol of this Government of our
great country. I can't understand why we are bent on taking away
people's rights and making them suffer because of a special interest
group that has a special reach to those in this Senate and the House
who say: We have to take care of this industry. This is an essential
industry. We want this. Maybe we can build this into a major industry,
make it bigger than it is, sell more guns.
That is hardly a way to see a productive existence in a society that
essentially has respect for the law.
The Reverend Stephen Anderson, a minister shot during this spree I
was talking about, on his way to join his family in a Fourth of July
celebration, would have his lawsuit dismissed. Steven Kuo, a graduate
student at the University of Illinois, would have his rights taken
away. Hillel Goldstein, one of several Orthodox Jews shot when walking
home from temple services, would have his family's lawsuit terminated.
There are other cases that would be dismissed--the parents of 15-
year-old Kenzo Dix, who was shot and killed unintentionally by a 14-
year-old friend because the gun lacked well-known safety features. The
boy thought his father's pistol was unloaded as he had emptied the
magazine. Had the gun included an indicator that alerted him that a
round was in the chamber, or an integral lock that would have prevented
him from firing, Kenzo would not have been killed. But Kenzo's parents'
case would be terminated by this bill.
The family of Joan Moore, who was shot and killed by a mentally
deranged man in the town of Belle, WV, would have their suit dismissed.
Her family brought suit for negligence against the gun dealer who sold
a 9 mm rifle to Moore's killer, 18-year-old Robert Copen. Mr. Copen
stood in the gun shop's parking lot all day in plain sight, smoking
marijuana before he entered the store. He apparently acted so oddly
while in the store that an employee asked his supervisor if Copen
should be trusted with a gun. Management told the employee to go ahead
and make the sale anyway.
This gun dealer was clearly negligent. But Mrs. Moore's family would
lose their rights under this bill.
This Senate looks as if it wants to administer a second punishment
because the first punishment was not severe enough. It is shocking to
believe this could take place.
Since when is Congress in the business of rewarding the worst in our
society? Why would we want to send a message that says: Circumvent the
law, put our families in danger, and we are going to protect you?
The reality is that the gun industry engages frequently in improper
conduct with deadly consequences. We have seen many examples of this.
Corrupt dealers who frequently sell to criminals would be immune. Straw
purchasers who work with rogue gun dealers to obtain guns for people
who are not eligible to buy guns would be immune. Dealers who engage in
large volume sales, such as the Illinois dealer who sold 60 Saturday
night special handguns to one customer, would be immune.
And, of course, there is the problem of gun shows, where criminals
and terrorists can buy guns without background checks.
As many here know, the Senate passed my gun show amendment with the
help of Vice President Gore, a 50-50 tie in 1999. But the House
Republicans killed the provision in conference. They were not willing
to shut down dealers who are not required to get any data about a
purchaser--no names, no addresses, no pictures, nothing, not even a
fingerprint.
If the NRA immunity bill is signed into law--and I call it the NRA
immunity bill deliberately because that is who we are servicing today.
We are not servicing this list of people who had the punishment we have
seen, punishment that should never be permitted to be put upon a
family, a loss of a child, a loss of a husband, a loss of a wife or
mother. We should not do that. But if the NRA immunity bill is signed
into law, victims of industry recklessness will be denied their day in
court.
It doesn't make sense. It doesn't make sense to me, and I am sure it
doesn't make sense to people across the country. And I hope they are
listening. People across the country have to understand what we are
doing. We are protecting an industry that provided the murder weapon to
kill lots of people. Why in the world do we want to protect those
people? If your behavior is bad, no matter what the product is, if it
is a toy, if it is a crib or otherwise, and it is made improperly, you
pay a price for it. I come from a State where pharmaceutical
manufacturers are a giant industry. Let a pharmaceutical manufacturer
put the wrong ingredient in the capsule which hurts somebody's health,
they go to court. They are very conscious of that. They are very much
afraid of the repercussions of a lawsuit. That is what makes people pay
attention. It does it in that industry. It does it in all other
industries.
But we want to exempt this one industry for their noble behavior, for
their concern for human life, for their concern for jobs, I heard
earlier. The Senator from Illinois scoffed at it and said: Oh, I didn't
know we were talking about a jobs bill.
Why don't we make hand grenades and distribute them freely? You could
get people to do that.
This is ridiculous. Unfortunately, it is not about common sense but,
rather, it is about dollars and cents. It is about political support on
the outside. It is about nasty mail campaigns. It is about the
deterioration of common sense and collegiality. It says: Look, I don't
owe my constituents all that. What I do owe is I owe some special
interest friends of mine who helped author the legislation in the House
that applies to this. We know the role that the NRA plays in financing
political campaigns. It seems as if it is paying off for them right
now.
Thankfully, there are still people here who see their responsibility
differently, who will stand up for principle, who will do all they can
to prevent this unconscionable piece of legislation from passing. We
have friends on both sides of the aisle, Democrats and Republicans.
This isn't the special property, the unique property of Republicans. It
is people who are not looking clearly at the problem, who are not
willing to say: Hey, I can catch a little abuse from the NRA and its
membership and its friends.
I took a lot of it in my previous term in the Senate. But we did take
gun permits away from spousal abusers. Some 40-plus thousand were
denied gun permits because of a piece of legislation we passed. Does
anybody regret that fact? I wonder, if we asked the question, do you,
sir/ma'am, regret the fact that we have taken away those permits from
those spousal abusers, permission to buy guns, permits.
I wonder if you feel badly about that, and about other things that
try to curb gun violence.
This bill takes away a critical tool in the fight to eliminate gun
violence. It is comparable, in my view, to taking away medication from
doctors trying to treat a deadly disease, perhaps to prevent death, or
immobility, or mental fatigue in a person without proper medication.
Why do we not want to prevent the possibility that someone can be
permanently injured or incapacitated?
What are the symptoms of this disease? In the year 2000, there were
more than 28,000 firearm-related deaths in the United States. About
11,000 were homicides. These deaths and injuries cost an estimated $2.3
billion a year in lifetime medical expenses alone, much of which is
borne by the U.S. taxpayer. The total societal cost of firearms is much
higher--an estimated $100 billion a year--and the cost to families
cannot be measured.
But we know this: The bill on the floor today is a direct attack on
people who have already suffered a tragedy. This bill is an
embarrassment to the Senate, to our Government, and our Nation, and it
ought not to be permitted to go forward.
I ask my colleagues one thing. Before you cast your vote on this
bill, spend a second thinking about a child's face who learns that
daddy is dead, or about a father's face when he learns that his
[[Page S1577]]
child is dead--killed not by nature or something that perhaps could not
be prevented. Much of this can be prevented. Think about these victims.
Give them their fair consideration before you victimize them once
again.
I hate to think that this wonderful body in which I am privileged to
serve would want to inflict punishment on those who have already
suffered so deeply, or who will suffer so deeply by protecting those
scoundrels who break the rules with reckless behavior. Imagine what is
being said--that even if you are reckless, you are going to be
immunized by this legislation. Negligence is bad; reckless is
unacceptable under any condition.
I hope I am talking for the majority of those so we can get a vote
against this bill.
I yield the floor.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Idaho.
Mr. CRAIG. Mr. President, we are hoping in a few moments that we
might have a unanimous consent request to allow us to get to this bill.
I will respond only briefly to the Senator from New Jersey and his
comments because he did suggest that I had implied something that is
not fact on the floor of the Senate today. I want to make sure the
record is clear because I don't want in any way to mislead any of my
colleagues.
I said that the Bull's Eye gun store was closed. It, in fact, did
close. The license of the dealer at the time the weapon was stolen was
jerked. He could no longer conduct the business. He sold the business
to a new licensed dealer. What the Senator from New Jersey failed to
recognize is that licenses aren't given to locations; they are given to
individuals, and those individuals must qualify. A condition of the new
license also was all new personnel in the gunshop.
The Senator is accurate in suggesting that he might have called today
and the gunshop is open under new management and new license and new
people. The person who I said this morning had lost his license because
BATF had jerked it and he had to close his business is, in fact, a
legitimate and valid statement. That did happen. It is also my
understanding that the criminal investigation is now underway, and that
BATF is recommending to Justice that they file felony charges against
this particular dealer. I do not know anything more about the facts.
But I do know one thing.
Mr. LAUTENBERG. Will the Senator yield for a question?
Mr. CRAIG. Let me complete this thought, and I would be happy to
yield.
I do know one thing. Lee Malvo himself said: I stole the weapon. That
is very important. But the Senator suggested--and his words were: Well,
maybe an under-the-table deal. I do not know that stealing is under the
table, and the man who pulled the trigger admitted he had stolen the
weapon. You can imply anything you want. I can't. I have to use factual
statements given by, in this case, a man who has been apprehended and
we now believe by all evidence committed that tremendously tragic crime
and was one of the District of Columbia snipers. That is the reality. I
believe those are the facts. I believe them to be honest and
straightforward facts.
I would be happy to yield to the Senator.
Mr. LAUTENBERG. I thank the Senator from Idaho.
One thing I know is that we often disagree, but I would never accuse
him of these statements. He is an honorable man. We have our
differences on things that we ought to be putting into law. But I would
like, if I may, to correct my friend's impression because not only was
there a phone which was answered but the now owner of the license is a
good friend of the former owner.
If one looks at the pictures that we displayed, the weapon used was a
pretty sizable piece of equipment. As I remember from what I saw on the
film shown on television, there was evidence that this Lee Malvo was
carrying a weapon out of that store. The camera saw it. Certainly it
could have been negligence. It could have been reckless or maybe the
gun was paid for by a friend, and with the wink of the eye, out it
went. But to give this criminal credit for telling the truth is
something that I--
Mr. CRAIG. I did yield for the sake of a question and not a comment.
I would like to reclaim the floor.
Mr. LAUTENBERG. The Senator is absolutely right. My question was, Did
the Senator know that the new owner of the license was the friend of
the former owner?
Mr. CRAIG. I didn't inquire about friendships or relationships. I
inquired about the legality of the license that operates the store, and
whether the store is still in business, and whether the owner who is
alleged to have mishandled records owns it today; does he operate it.
The answer is no.
Let me also add that I appreciate the Senator's logic about the
stealing of a weapon. Automobiles are stolen from automobile lots and
the thieves are caught on camera. The last I checked, an automobile is
substantially larger than a rifle. Is it possible that Lee Malvo picked
up a gun and walked out of the store? He says he did. He says he did.
He stole the weapon.
I am not going to in any way attempt to defend the man who once owned
the Bull's Eye gunshop. He may be indefensible. He may have violated
the law. If he did--and he is being investigated for it--S. 1805 does
not immune him from any of those actions. That is what is important to
understand as we debate the bill. His acts were criminal. If he is in
violation of the Federal firearm license, if he has mishandled his
records, and if he had, in fact, seen a robbery and failed to report
it, then this man is in trouble because that is the law. We would not
protect him nor does this bill protect him from that law.
I yield the floor.
Mr. REED. Mr. President, we have heard a lot today about the
exceptions contained in that bill which, arguably, might result in
liability to someone such as the dealer in the Bull's Eye Shooting
Gallery store but legal analysis by eminent attorneys suggests they
would not apply to that particular case.
Mr. LAUTENBERG. Mr. President, I wonder if I could ask the
distinguished Senator a question.
Mr. REED. Yes.
Mr. LAUTENBERG. I believe the Senator has examined the opinion
offered by Mr. Lloyd Cutler and others. Is it not their opinion that
these lawsuits would be obstructed from proceeding as a result of this
law being put in place?
Mr. REED. The Senator is accurate. The analysis by eminent attorneys
looking at this legislation, looking at the exemptions, suggests in the
case of Bull's Eye that this dealer would not be subject to liability;
he would be immunized from liability because of this particular bill.
This is a situation that has to be made very clear to people. We are
essentially giving this individual an opportunity to walk away from
serious negligence. I don't think it is appropriate. In fact, I think
it is unconscionable.
There is a factual discussion about the status of the Bull's Eye
Shooting Gallery. My understanding is--and it is close, I think, to
that of the Senator from Idaho with additional detail--as I understand
it, the individual who was in fact the owner-operator, Brian Borgelt,
had his license revoked. He is appealing that revocation in court. That
is his right. He somehow transferred ownership of the store to someone
we have been informed is a friend, a colleague, which is also
permissible under the law. It appears, though, that Mr. Borgelt is
operating a shooting gallery in the same building, but it does look as
if this might be an entirely legal transaction.
The point was raised earlier, and Senator Lautenberg and I have tried
to clarify, at least there was an impression this store was closed, out
of business, and not operating. The agreement and the factual accuracy
as of this point that we both share is the store is operating. The
individual who owned it is no longer operating it because his license
has been revoked and he is challenging the revocation.
Mr. CRAIG. If the Senator will yield, I think that is a valid
analysis and I certainly did not intend to misportray that.
Again, let's go back to the law. Are you suing the store if there are
lawsuits, or are you suing the individual who had the Federal firearms
license? Is it the physical structure that is liable or is it the
individual who owned the structure who is liable? We know
[[Page S1578]]
what the law is. It is the individual and not the store.
I cannot, nor do I, know the details of the relationship. What I do
know is that he cannot sell firearms today. His license has been
pulled. That is what the law requires, and a criminal investigation
proceeds at this moment. I believe that is the essence of the argument.
Mr. REED. That is an accurate description of the situation but,
again, the imprecision was whether the store is operating, not who is
operating it. The individual is not able to operate because he lost his
license.
Mr. CRAIG. If the Senator will further yield, I did use the phrase
``store closed.'' I meant the ownership, as it was; he closed. It
reopened. Whether it was 24 hours or 48 hours, he could no longer
operate it when his license was revoked. We understood he sold it to a
new operator who is licensed.
Mr. REED. I think it is important to clarify that because it has been
a matter of factual dispute.
The other issue which has to be clarified is the applicability of
this legislation to that original owner-operator who had been accused
of a laundry list of inappropriate actions. I had the opportunity to
review some of them today.
With respect to the owner of the Bull's Eye Shooting Gallery at the
time the Malvo gun was obtained, under his ownership and under his
license, 238 guns were missing. Many guns between 1997 and 2001 found
their way into crime scenes. A remarkable record of guns found their
way from a licensed dealer to crime scenes. Many found themselves to
crime scenes in a rapid period of time. The nomenclature is ``time to
crime.'' Time to crime was remarkably narrow. The time to crime was
less than 3 years in more than 70 percent of Bull's Eye cases between
1997 and 2001, suggesting this organization was a conduit for obtaining
weapons for crimes.
There were large numbers of multiple firearms sales. Sometimes he
would sell as many as 10 guns at a time. There were numerous ATF
citations, at least 15 times between 1997 and 2001. That is the record
of the individual whose license was suspended, finally, by the ATF.
But the issue is, with respect to this individual, if we pass this
legislation, will he be immunized after this record of negligence,
recklessness, irrational responsibility? Most people would say that is
the record. The exemption provided by paragraph (5)(A)(iii) says, in
effect, the action would be preserved in which a manufacturer or seller
of a qualified product violated a State or Federal statute applicable
to the sale or marketing of the product and the violation was a
proximate cause of harm for which relief is sought.
Two elements: You have to violate Federal and State statutes; and
that violation was the proximate cause of the damage to the individual.
According to the well-settled tort law principle, proximate cause
requires that the defendant's conduct was a substantial factor in
bringing about the harm suffered by the plaintiff.
Remember, two elements: State and Federal statutes violated, and that
violation being a proximate cause.
Here is the difficulty with respect to the situation at the Bull's
Eye Shooting Gallery. Despite the evidence we have that there were
certain violations, many of them record keeping, it is going to be
virtually impossible that the plaintiffs in the sniper case will be
able to show that Bull's Eye violated any State or Federal statute with
respect to the particular gun that was used by the snipers or that any
such statutory violation was a proximate cause of the sniper attacks.
The evidence concerning the acquisition of the snipers' weapon
supports Bull's Eye's claim that Lee Boyd Malvo shoplifted the gun.
That is not in dispute. Indeed, after his arrest, I believe Malvo
admitted he shoplifted the gun from Bull's Eye. Although the plaintiffs
or the family of the plaintiffs claim that Bull's Eye's lax security
practice permitted Malvo to get the weapon, that would not establish a
violation of any Federal or State statute.
Again, a reading of this exception would say that you have to show,
first, a Federal or State statute was violated, and the violation of
that statute was the proximate cause was reading to injury. It is
virtually impossible in this case.
What is happening in all of these exceptions that are built into the
bill is, this is a trapdoor, if you will. We have a general prohibition
against any type of suit against these individuals, these dealers,
these manufacturers, or trade associations; and then we have
exceptions. And they point out within the exceptions, artfully
constructed by very good lawyers, provisions for an escape clause for
the potential defendants. Here it is, the combination of proximate
cause and violation of Federal-State statute.
Again, close analysis of the evidence--and I don't think any of this
evidence is in dispute; Malvo admitted he shoplifted the weapon--
suggests strongly this exception would not apply in the case of the
Bull's Eye shooter. These sniper victims will be without relief. That
is not just my view but the view of attorneys who have looked at it
very carefully.
Now, this is a very detailed legal analysis. But, again, we so
often--all of us--appeal to rather common, homely--in a literal sense--
illustrations, something with which we are comfortable. I was struck
when the Senator from Idaho talked about, Goodness gracious, if someone
stole a car off a lot and drove into another car and caused damage,
that you could not hold that dealer responsible.
Well, I can conceive of a situation. For example, if a dealer
ordinarily left the keys in all of the cars on his lot, and they were
cited 15 or 20 times before for doing that, and people knew that the
dealer's cars were available, and young kids came in and jumped into a
car and drove off at 60 miles an hour careening into another car and
killing someone, I will tell you what I think. You have a pretty good
suit against that automobile dealer for negligence, for abandoning the
care that any other dealer in the country would adopt. They would not
be protected from a suit as we propose to protect the gun industry.
Again, this legislation is very troubling to me. I do not think it
provides adequate protections for people who have legitimate claims,
the most graphic example of which is the sniper victims in the
Washington, DC, area. But they are not alone. Danny Guzman was killed
in Worcester, MA, as a result of what I think is gross negligence. A
gun manufacturer employed, without background checks, ex-convicts, drug
addicts, allowing them to steal weapons from the production inventory
of the company, and to sell them to criminals in exchange for cash and
drugs. This involved a multiple of weapons. They got the weapons out of
the factory before they could stamp the serial numbers on them. Again,
common sense would say: My goodness gracious, somebody has to be able
to go in and require that employer to be conscious of their weapons,
their security procedures.
I also understand--and again it is an understanding that is not
shaped by a footnote at the moment--there are really no effective State
or Federal laws about the security of weapons. I do not think there is
any requirement specifying you have to have triple locks or double
locks, et cetera. I think that is left to the reasonable business
standards of an individual dealer. Again, if we do not have those rules
and regulations or they are not effective, how do we then insist we
cannot have a negligence action, as this legislation proposes?
For these reasons and many others I reiterate my opposition to the
legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Hope springs eternal that we might, sometime in the late
of the afternoon--I guess it is now described as early evening--see a
unanimous consent agreement that would take us into tomorrow and the
remainder of the week as to how we are able to move to and deal with S.
1805 and its amendments.
I am going to respond only briefly to what my colleague has just said
because I am not an attorney and I am not going to attempt to outlawyer
the lawyers. Mr. Cutler is a fine lawyer. There are many other fine
lawyers who disagree with Mr. Cutler. It is not our job to outlawyer
the lawyers, but it is our job to write law as clearly as we can and
then allow judges, listening to
[[Page S1579]]
the arguments of lawyers as they relate to how a given situation might
fit in a suit, to make the determination as to the applicability of the
law.
Now, having said that, I would like to refer to another lawyer. Is he
as recognized as is Mr. Cutler? No, probably not. But this does come
from the Congressional Research Service, and it is one of those
services that we utilize. The Senator has, I think, the same work
product I have. We are talking about the Daschle-Craig-Baucus amendment
that Senator Daschle came to the floor to speak to a few moments ago.
The Daschle-Craig-Baucus Amendment would strike ``knowingly
and willfully'' in the preceding sentence--
That we are talking about--
potentially increasing the likelihood that [certain
exceptions] to the general immunity afforded under the [law]
would be applicable in any given case.
They looked at it in relationship to the Bull's Eye case to which the
Senator was referring.
Now, these are not my words. I am not this good. I am not an
attorney. But I do listen to them, and I seek out their advice when it
comes to writing law and making sure that it is clear and unambiguous.
They cite two examples and they say:
Applying these changes to the scenario at issue--
We are talking about Bull's Eye--
it would appear that the Amendment could have the effect of
making it more likely that this exception to immunity would
be applicable, if certain facts are established.
``If certain facts are established.'' Those facts have not yet been
established. They were not established for Attorney Cutler. He is
simply looking at the broad presence of the law, or application of it,
as are we.
If certain facts are established in an investigation and charges are
brought against an owner, then we believe our amendment clarifies and
does not provide the immunity, if those facts are established.
Now, the changes we are talking about are twofold:
(I) any case in which the manufacturer or seller knowingly
made any false entry in, or failed to make appropriate entry
in, any record which he is required to keep pursuant to State
or Federal law--
If weapons are stolen and they fail to note it, fail to report it to
the police, that fits that area--
or aided, abetted or conspired with any person in making
any false or fictitious oral or written statement with
respect to any fact material to the lawfulness or the sale or
other disposition of a qualified product.
``Other disposition''--theft. At least this is my interpretation now.
I am not a lawyer. Secondly:
[A]ny case in which the manufacturer or seller aided,
abetted or conspired with any other person to sell or
otherwise dispose of a qualified product, knowing or having
reasonable cause to believe that the actual buyer of the
qualified product was prohibited from possessing or receiving
a firearm or ammunition under section 922(g) or (n) of title
18, United States Code. . . .
That is what the Congressional Research Service says. Then it draws
that conclusion I gave earlier:
Applying these changes to the scenario at issue--
That is what the Daschle-Craig-Baucus amendment does. ``The scenario
at issue,'' the arguments put forth, the concern about somehow, if the
facts are established, this firearms dealer being immune by S. 1805--
it would appear that the Amendment could have the effect--
The amendment is in large part incorporated in S. 1805 now, and
Senator Daschle is going to offer another amendment that we know will
be accepted and will clarify it even more--
of making it more likely that this exception to immunity
would be applicable, [again] if certain facts are
established.
That is the argument at hand. We can trade arguments of attorneys. We
will place all these kinds of things in the Record so our colleagues
can understand them and hopefully sort them out, but it is my opinion
that we are not exempting this formerly licensed gun dealer who has now
had his license revoked. Because if an investigation goes forward, and
charges are filed against him, I believe we have clearly not granted
him immunity under S. 1805 if it, in fact, becomes law. I do believe
that is the strength of our argument, and one that certainly is
believed to be what we represent here. It is certainly from the
Congressional Research Service, which has very active attorneys who
deal constantly with the law as we shape it and form it and look at
arguments that are placed out there in the public arena in relation to
the legislation that we bring before the Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I recognize there are different legal
interpretations. I recognize also the Senator from Idaho has introduced
an interpretation of the Congressional Research Service. I have one,
too. Theirs is dated November 3, 2003. Mine is dated October 20, 2003.
We made a request. They looked at the amendment, the perfecting
amendment offered by Senators Craig, Daschle, and Baucus. In the
context of that correcting amendment, they opined in October:
Again, you have specifically inquired as to whether the
Amendment would alter the bill to such a degree as to allow
the pursuit of a civil action against the gun dealer from
whom the weapon used in the D.C.-area sniper shootings was
stolen. A review of federal and Washington State law
indicates that there are no statutory requirements regarding
the storage and security of firearms by licensed firearm
dealers. Accordingly, it seems evident that there would be no
basis for the application for this exception in the case at
hand, irrespective of the presence of the ``knowing and
willfully'' requirement, given that there appears to be no
violation of a relevant underlying federal or state statute.
That is an October CRS.
Obviously a second opinion was sought. That is the nature of legal
opinions many times. This opinion was premised on certain facts that
are not yet obvious and perhaps never to be obvious.
In fact, in reference in the report Senator Craig referred to:
Thus, in the event that it is established that Bull's Eye
was aware that the firearm was missing from its inventory
more than 48 hours prior to November 5, 2002, the Amendment
would appear to lend further support to the application of
the exception to immunity . . . of the bill.
Essentially what was done in this latest CRS was to say: We will
assume hypothetically that in fact they violated the Federal statute,
i.e., the requirement to report a weapon within 48 hours of its
disappearance. Well, if you assume a violation of the statute, you have
gotten way over the curve, because once again, Federal statute or State
statute has to be violated, proximate cause.
The problem is this assumption does not have much of an evidentiary
base. The footnote to the report Senator Craig referred to suggests:
These examples are pertinent to the extent--
examples of potential violations--
they could be implicated in any hypothetical sale or transfer
to the D.C.-area sniper suspects. It should be noted,
however, that it does not appear that any evidence has been
produced of actual violations of these provisions by Bull's
Eye in the case at hand.
The answer to qualifying this exemption is not to assume a violation
of Federal law. There has to be some evidence. But there does not
appear to be any evidence of violations of Federal statutes. There are
no Federal/State statutes with respect to security of firearms, the
physical security. The slender reed--no pun intended--they might hang
it upon is they somehow knew the weapon was missing a long time before
November 5, 2002, and they failed to report it. No evidence from Malvo
suggests that. I don't know if there is, frankly. The stories we have
all heard from the operator were he didn't know the weapons were
missing until the day they showed up, the ATF showed up and said the
weapons were missing. The practical effect of this is a judge might
have the opportunity for a few minutes to look at this record, but
where is the evidence?
The practical effect of this legislation is these claims will be
barred. That would be a great misfortune, not only for the families
involved but a misfortune in terms of setting up a very bad precedent
in terms of undermining the common law sense of responsibility for your
actions. Senator Craig is a very articulate advocate for his position
and has referred to that several times; this is just about maintaining
centuries of legal precedent about individual responsibility. I
disagree. I think it is about overturning centuries of legal precedent,
the precedent that an individual is responsible
[[Page S1580]]
for their actions, that an individual, such as the licensee at Bull's
Eye, is responsible for not securing the weapons, is responsible for
not knowing he has lost weapons--according to his view at this point--
for days and weeks and weeks. If we immunize the individual, we will
undercut that basic principle of individual responsibility.
One of the things I find amazing in this whole discussion of the
security of weapons is, I commanded a paratrooper company at Fort
Bragg. I worried every day about the weapons in my outfit. We had
double locks on the doors, locks on the racks, individual accounting
every day of weapons. One of the things that as a young airborne
captain you are worried about was showing up one day and discovering a
weapon or part of a weapon or even equipment associated with a weapon
was missing. That was a big deal. That is a standard of the United
States Army.
We are telling people who maintain large arsenals in commercial
venues that the standard for them is nothing. Miss a few weapons, don't
even pay attention because, frankly, knowledge will hurt you.
This goes also to the principle of why we have laws of negligence,
tort laws. It is not just for individual compensation. That is an
important part of giving an individual the right to make themselves
whole after they have been harmed. It is something else. It is about
having a system of standards that are self-enforcing, not because there
are ATF agents walking around, but because in addition to that, an
owner of one of these stores will simply say: You know, I better make
sure all these weapons are accounted for at least every week. I better
make sure they are secure. I better make sure if people walk in who
might not be eligible to purchase a weapon I at least ask them what
they are doing. None of that appears to be done.
In response to the specific question of the application of the
exemption, I think the proponents have tried all they can to dress it
up. It just doesn't work. There is a huge trapdoor when you put
together violation of State or Federal statute and that violation
causes proximate cause.
Someone could go in and show they didn't file the records properly.
That is a violation of Federal and State regulation. They could show
perhaps they were lax in some other capacity. Then you have to make the
further showing that violation was directly connected. So literally in
this case you are going to have to show that particular weapon that
found its way into Malvo's hands was the subject or involved with a
specific violation of Federal/State law. That is why this CRS report
has to assume that particular weapon, of all the 248, was noted as
missing more than 48 hours before November 5, 2002. That is an extra
burden of proof. That is, again, why I don't think this will work for
the victims of these crimes.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, we hope we are narrowing down to a time
when we will have a unanimous consent request which then--and I can't
judge this yet--might conclude our efforts today. We will be back early
tomorrow morning to resume. I thank my colleague for his arguments. We
are not going to try this case here on the floor of the Senate because
we don't have a judge. I am not a lawyer. He is; I am not. But I would
also ask him to look at another provision we have in the bill as he
argues the case. That is that a lawsuit could also be allowed under the
bill's exception allowing actions for negligence per se or for
negligent entrustment, depending on, of course, the condition of the
dealer and the dealer's knowledge, if any, of the suspects.
Having said that, let's remember to address these issues, the victim
would need to get his day in court. The case will be filed. The
defendant would file a motion to dismiss based on provisions of 1805.
And if the judge--remember there is going to be the impartial judge
weighing all the law and the findings--decides this case did not fall
under those exceptions, then the litigation would proceed. That is the
essence. We are not going to argue the case effectively here because,
frankly, we don't know all of the facts. We are not a part of ATF's
investigation, and all of those facts are not yet public. They will not
be public until charges are filed, a suit is brought, and that day in
court I just spoke of is at hand.
Obviously, the Senator and I can disagree on what the meanings are,
but I do believe the arguments we put forth are extremely valid.
Certainly, the minority leader, myself, and others, in a very
bipartisan fashion, have worked tremendously hard to craft this bill in
a way that is as narrow as I expressed it to be earlier in the day to
deal only in the protection of law-abiding dealers, law-abiding
manufacturers who make a legitimate product, and to deny the kind of
lawsuits we have seen that are more intent on bankrupting the
manufacturer than they are in bringing resolution to or, if you will,
dealing with the victims and rewarding them in any fashion.
I yield the floor.
The PRESIDING OFFICER (Mr. Coleman). The Senator from Rhode Island.
Mr. REED. Mr. President, my colleague from Idaho has invited me to
look at the theory of negligent entrustment and negligence per se. I
will try to do that.
Again, this is not an attempt to dispose of a case before a court.
But we all have an obligation to understand what we are voting on, what
these provisions will do based on the plain language of the provisions
and based upon the facts as we know them in certain cases. That is why
I think this is a positive exercise. It is insufficient to say that we
pass laws, but we do not have to know what they mean because some judge
will figure out what they mean. No, no, I think we have to know what
they mean because that should drive our decision about whether this
legislation will pass or fail.
Let me turn for a moment to these two theories of negligent
entrustment/negligence per se.
Negligent entrustment is generally understood as ``the supplying of a
qualified product by a seller for use by another person when the seller
knows, or should know, the person to whom the product is supplied is
likely to, and does, use the product in a manner involving unreasonable
risk of physical injury to the person or others.''
Again, the seller has to know, or is likely to know, that the person
they transfer the weapon to or supplied it to is likely to harm himself
or harm someone else.
The problem we have with respect to the sniper case is that the
evidence the snipers' weapon was shoplifted from Bull's Eye would
appear to preclude the plaintiffs from making the requisite showing
under the statute that the gunshop knew or should have known that the
recipient of the gun, Malvo, was likely to use the product in a
criminal or otherwise unreasonably dangerous manner.
Malvo indicated he shoplifted the weapon. The owner said he must have
taken it. He didn't know it was missing until ATF showed up.
The theory of negligent entrustment is fancy-sounding terminology,
but it is another trapdoor from which the exception falls out.
Negligence per se, under most--I am a lawyer, but I am hesitant to
say I am a lawyer who is familiar in every detail with Federal
practice, but my assumption is since we are talking about Federal and
State laws, this negligence per se is a State common law concept that
would apply to the laws of Washington State because that is where the
Bull's Eye shooting gallery is located.
In any event, with respect to negligence per se, it would not
preserve the sniper case because even where that doctrine is
recognized, it requires a violation of statute that is a proximate
cause of the plaintiff's injury. Once again, you have to show not only
the violation but that violation of that particular law was a proximate
cause of injury. As discussed above--again I am borrowing from one of
these legal analyses--that would be very difficult to show. In fact,
also I think there is another problem in Washington State about the
doctrine of negligence per se.
The negligence per se doctrine has been abrogated by statute in
Washington State. It doesn't apply.
Once again, I think we have an exception that does not provide relief
for these individuals.
I conclude by joining my colleague in hoping we have some resolution
soon on the procedural process for this evening and tomorrow. I yield
the floor.
[[Page S1581]]
Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, after consultation, we have reached a
unanimous consent agreement which I will now propound.
I ask unanimous consent that at 9:30 a.m. tomorrow morning the Senate
proceed to the consideration of S. 1805; that Senator Daschle then be
recognized to offer his perfecting amendment; that there be 30 minutes
equally divided for debate on his amendment; that at the conclusion or
yielding back of time the Senate, without any intervening action or
debate, vote on the Daschle amendment; that upon the disposition of
that amendment Senator Boxer be recognized to offer a gun lock
amendment; further, that following 30 minutes of debate equally divided
in the usual form Senator DeWine be recognized to offer a relevant
second degree under the same conditions; further, that following the
use of time the Senate proceed to a vote in relation to the second
degree to be followed by a vote in relation to the underlying
amendment.
Further, I ask unanimous consent that following those votes Senator
Campbell be recognized in order to offer an amendment regarding
conceal-carry and that there be 60 minutes equally divided in the usual
form with no second degrees in order; provided that following that time
the amendment be set aside and Senator Kennedy be recognized to offer
an amendment on ``cop-killer'' bullets with 60 minutes equally decided,
and that there be no second degrees in order, and that following that
time the amendment be set aside.
I further ask unanimous consent that Senator Cantwell then be
recognized to offer her unemployment extension amendment; that there be
60 minutes for debate equally divided on her amendment and it then be
laid aside; that no second-degree amendments be in order to her
amendment; further, that Senator Frist or his designee then be
recognized in order to offer an amendment relating to voting rights and
that there then be 60 minutes of debate equally divided with no
amendments to the amendment; provided further that the Senate then
proceed to vote in relation to the Cantwell and Frist amendments in
that order, and that if either amendment fails to receive 60 votes, the
amendment be withdrawn or fall due to a pending point of order.
I also ask unanimous consent that Senator Mikulski then be recognized
to offer her amendment on snipers with 40 minutes equally divided in
the usual form, to be followed by a vote in relation to the amendment,
to be followed by an amendment offered by Senator Corzine on law
enforcement officers for 30 minutes equally divided in the usual form,
to be followed by a vote in relation to the amendment, to be followed
by an amendment by Senator Bingaman on definition, with 30 minutes
equally divided in the usual form, to be followed by a vote in relation
to the amendment.
I further ask unanimous consent that following each of the Boxer,
Kennedy, Mikulski, Bingaman, Corzine amendments it be in order for
Senator Frist or his designee to offer a first-degree amendment that
would be relevant to the mentioned amendments and limited under the
same time constraints; and that the possible Frist amendment on ``cop-
killer'' bullets be set aside after time has expired or yielded on the
amendment; and that the possible Frist amendments would be voted on
prior to the respective Democratic amendments; that on Tuesday morning
at 9:30 a.m. the pending amendments be withdrawn with the exception of
the Campbell amendment, the Kennedy amendment, and a possible amendment
by Senator Frist regarding ``cop-killer'' bullets, if there are any
pending at the time; that Senator Reed then be recognized to offer a
gun show amendment; that it then be immediately laid aside and Senator
Feinstein be recognized to offer her assault weapons ban amendment,
that it then be set aside, and that Senator Frist or his designee be
recognized to offer a DC gun ban amendment; that the time prior to
11:35 a.m. that day be equally divided for debate on all amendments
concurrently; that no second-degree amendments be in order to any
amendment; that at 11:35 a.m. the Senate vote on the Feinstein
amendment, followed immediately by a vote on Senator Reed's amendment,
to be followed by a vote on the Campbell amendment, to be followed by a
vote on the Kennedy amendment, to be followed by a vote on the District
of Columbia ban amendment; further, that following the disposition of
the above amendments the bill be read the third time and the Senate
proceed to a vote on final passage of the bill with no intervening
action prior to those votes; that where this agreement provides for two
or more votes in sequence there be 2 minutes for debate equally divided
in the usual form prior to each vote; that all time for debate be
equally divided in the usual form.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DASCHLE. Mr. President, it has obviously taken a good deal of
time to reach this agreement due to the complexity that is apparent as
Senator McConnell has read it.
There are two matters that ought to be recognized. First, this does
not preclude Senators who are not listed in this unanimous consent
agreement from offering an amendment sometime either this week or early
next week. Senators who have additional amendments are certainly
welcome to do so.
Second, this does not preclude those who have amendments on Tuesday
from discussing and speaking to those amendments at any time between
now and when those amendments are raised. There was some question about
whether 2 hours on Tuesday for three very important amendments is
adequate. My answer is that it is more than 2 hours if people want to
devote more than that time between now and the time they are offered. I
encourage Senators who wish to speak longer to come to the floor over
the course of the next week to do so.
This is a very fair agreement. It is one that takes into account a
lot of concerns and interests on the part of many Senators. I am
supportive of the agreement and hope that we can have a good debate as
a result of it.
I yield the floor.
The PRESIDING OFFICER. The majority whip.
Mr. McCONNELL. I echo the comments of the Democratic leader. This
agreement, which is quite complex, allows us to accommodate various
interests on both sides of the aisle but then move to final passage on
the underlying bill, which, of course, was the goal of the majority
leader in bringing it up at this time. I particularly commend Senator
Craig, who has done a marvelous job of managing this issue on our side,
and I thank him for his important contribution in reaching this
agreement that will allow the Senate to achieve final passage on a bill
that he is the principal sponsor of and that we believe a substantial
majority of Senators on a bipartisan basis would like to see ultimately
become law.
Mr. CRAIG. Will the Senator yield?
Mr. McCONNELL. I yield.
Mr. CRAIG. Let me thank both the leadership on our side of the aisle
and certainly the minority leader and the minority whip for the work
they have done in trying to bring this together.
Is this something that I wholeheartedly support? Well, let me put it
this way: It is something I support because it gets us to a final vote,
which is very important, in a timely way.
But something is absent from this unanimous consent agreement that is
very important: to allow the underlying bill, however it is changed, to
become law. That is why we are here on the floor. Not that this is how
we get to conference, which oftentimes is agreed to. When we craft a
bill and arrive at a time of final passage, we almost always include in
it the procedure by which we will get to conference.
I hope that our minority leader, in good faith, would work to help us
get to that point so we can work out the differences between the House
and the Senate. There will be differences; that is quite obvious now.
Some of these amendments could pass. It is important we work that out.
We saw the underlying bill gain a substantial bipartisan majority
support in the Senate, and therefore it is
[[Page S1582]]
incumbent upon all of us, I trust, to get this bill to a conference
between the House and the Senate, work out our differences so we can
vote on a conference report and allow this underlying bill now changed
to get to our President's desk.
Having said that, let me thank everyone for the work they have done.
This is a very busy schedule. But let me also echo what the minority
leader said. It does not stop other Members who feel they must offer
amendments from bringing those to the floor. I said early on today we
wanted an open process, amendments voted on, but at the end of the day
we wanted to vote on final passage. We helped facilitate that by this
agreement, and I appreciate the work done by our leaders.
The PRESIDING OFFICER. The majority whip.
Mr. McCONNELL. I was just reminded by floor staff that the Reed
amendment is, in fact, the McCain-Reed amendment. I ask consent that
the agreement we just reached be so modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Democratic whip.
Mr. REID. Mr. President, I feel constrained to say that we have been
in a quorum call now for 4 hours 10 minutes, but that does not take
away from the fact that people have been working very hard during this
entire period of time, plus earlier this day. I personally extend my
appreciation to the two leaders, the Republican leader and the
Democratic leader, for working with us. Senator Frist is not on the
floor tonight. We have been in constant contact with him during the
evening.
I also want to say that Senator Reed, my counterpart from Rhode
Island, has been representing those people who are extremely concerned
about this issue, probably 12, 15 Senators. He has been extremely
helpful, as he always is. He has represented his cause in the most
efficient way. Without his cooperation and work, Senator Daschle and I
could not be at the point where we are today.
The PRESIDING OFFICER. The majority whip.
____________________