[Congressional Record Volume 150, Number 23 (Friday, February 27, 2004)]
[Senate]
[Pages S1860-S1873]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 1805, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 1805) to prohibit civil liability actions from 
     being brought or continuing against manufacturers, 
     distributors, dealers, or importers of firearms or ammunition 
     for damages resulting from the misuse of their products by 
     others.

  Pending:

       Hatch (for Campbell) amendment No. 2623, to amend title 18, 
     United States Code, to exempt qualified current and former 
     law enforcement officers from State laws prohibiting the 
     carrying of concealed handguns.
       Kennedy amendment No. 2619, to expand the definition of 
     armor piercing ammunition and to require the Attorney General 
     to promulgate standards for the uniform testing of 
     projectiles against body armor.
       Craig (for Frist/Craig) amendment No. 2625, to regulate the 
     sale and possession of armor piercing ammunition.

  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, today we begin the third day of debate on 
this important bill, S. 1805, addressing the problem that should 
outrage many Members of this Senate and by the cosponsorship we have at 
this moment, I believe that is the case. That outrage should be against 
the abuse of our courts by those who cannot change public policy 
through representative government but instead are attempting an end run 
around the State and Federal legislatures to impose their political 
agenda on the people of this country through litigation. In this case, 
their target is the one consumer product whose access is protected by 
nothing less than the U.S. Constitution itself; that is, firearms.
  The bill, the Protection of Lawful Commerce In Arms Act, we are 
talking about today and debated thoroughly yesterday and the day 
before, would stop what I call junk lawsuits that attempt to pin the 
blame and the cost of criminal misbehavior on business men and women 
who are following the law and selling a legal product.
  This bill responds to a series of lawsuits filed primarily by 
municipalities advancing a variety of theories as to why gun 
manufacturers and sellers should be liable for the cost of injuries 
caused by people over whom they have no control, criminals who use 
firearms illegally.
  This is a bipartisan bill. Let me acknowledge my Democrat sponsor, 
Max Baucus of Montana, for his work on this initiative. Many others 
have helped advance it, as well as the leaders and the assistant 
leaders on both sides. By that demonstration, this bill is truly a 
bipartisan effort. The cosponsors we have to date are substantial. With 
myself and Senator Baucus included, we now have 54 cosponsors.
  We introduced the bill nearly a year ago, last March, with more than 
half of the Senate as cosponsors at that time: Senator Alexander, 
Senator Allard, Senator Allen, Senator Bennett, Senator Bond, Senator 
Breaux, Senator Brownback, Senator Bunning, Senator Burns, Senator 
Campbell, Senator Chambliss, Senator Cochran, Senator Coleman, Senator 
Collins, Senator Cornyn, Senator Crapo, Senator Dole, Senator Domenici, 
Senator Dorgan, Senator Ensign, Senator Enzi, Senator Graham of South 
Carolina, Senator Grassley, Senator Gregg, Senator Hagel, Senator 
Hatch, Senator Hutchison, Senator Inhofe, Senator Johnson, Senator Kyl, 
Senator Landrieu, Senator Lincoln, Senator Lott, Senator Miller, 
Senator Murkowski, Senator Nelson of Nebraska, Senator Nickles, Senator 
Roberts, Senator Santorum, Senator Sessions, Senator Shelby, Senator 
Snowe, Senator Smith, Senator Specter, Senator Stevens, Senator Sununu, 
Senator Talent, Senator Thomas, and Senator Voinovich.
  This range of cosponsorship reflects extraordinarily widespread 
support that crosses party and geographical lines and covers the 
spectrum of political ideologies that is clearly always represented in 
the Senate. It demonstrates a strong commitment by a majority of this 
body to take a stand against a trend of predatory litigation that 
impugns the integrity of our courts, threatens a domestic industry that 
is critical to our Nation's defense, jeopardizes hundreds of thousands 
of good-paying jobs, and puts at risk access Americans have to a legal 
product used for hundreds of years across this Nation for lawful 
purposes such as recreation and defense.
  We have been joined in this effort by a host of supporting 
organizations representing literally tens of millions of Americans from 
all walks of life. I thank them all for their effort to help pass the 
Protection of Lawful Commerce in Arms Act. I invite my colleagues to 
consider a broad cross section of American citizens represented by such 
diverse organizations as unions, including United Mine Workers of 
America, United Steelworkers of America, United Automobile, Aerospace 
and Agricultural Implement Workers of America, the locals of the 
International Association of Machinists and Aerospace Workers; business 
groups, including the U.S. Chamber of Commerce, the Alliance of 
America's Insurers, the National Association of Wholesale Distributors, 
the National Association of Manufacturers, and the American Tort Reform 
Association, the National Rifle Association; and more than 30 different 
sportsmen's groups and organizations whose members are engaged in the 
conservation and hunting and the shooting sports industry in all 50 
States across this great Nation.
  I have used the term ``junk lawsuits,'' and I want to make it very 
clear, because this was part of our discussion yesterday, to anyone 
listening to this debate, I do not mean any disrespect to the victims 
of gun violence in any way who might be involved or brought into these 
actions by other groups.
  Although their names are sometimes used in the lawsuits, they are not 
the people who came up with the notion of going after the industry 
instead of going after criminals responsible for their injuries or for 
their losses. The notion originated with some bureaucrats and some 
anti-gun advocates, and the lawyers they were with.
  Victims, including their families and communities, deserve our 
support and our compassion, not to mention our insistence, on the 
aggressive enforcement of the laws that provide punishment for the 
criminals who have caused harm to them.
  There are adequate laws out there now, and we constantly encourage 
our courts to go after the criminal, to lock them up, and to toss the 
key away when they are involved in gun violence and when they use a gun 
in the commission of a crime. If those laws need to be toughened, our 
law enforcement efforts improved, then the proper source of help is the 
legislatures and the governments, not the courts, and certainly not 
law-abiding businessmen and workers who have nothing to do with their 
victimization. No.
  The reason there are junk lawsuits is that they do not target the 
responsible party for those terrible crimes. They are predatory 
litigation looking for a convenient deep pocket to pay for somebody 
else's criminal behavior. Let me repeat that. I define junk lawsuits as 
predatory litigation looking for a convenient deep pocket to pay for 
somebody else's criminal behavior.

[[Page S1861]]

They are junk lawsuits by any definition of the word because they are 
driven by political motives to hobble or bankrupt the gun industry as a 
way to control guns, not to control crime.
  By definition, the legislation we are considering today aims to stop 
lawsuits that are trying to force the gun industry into paying for the 
crimes of people over whom they have absolutely no control.
  Let me stop a minute right here and make sure everyone understands 
the very limited nature of this bill. I have expressed it. I have 
explained it. I have talked about it. I have asked all of our Members 
to read S. 1805.
  What this bill does not do is as important as what it does. This is 
not a gun industry immunity bill. This bill does not create a legal 
shield for anyone who manufacturers or sells firearms. It does not 
protect members of the gun industry from every lawsuit or legal action 
that could be filed against them. It does not prevent them from being 
sued for their own misconduct.
  Let me repeat that. It does not prevent them--``them,'' the gun 
industry--from being sued for their own misconduct. This bill only 
stops one extremely narrow category of lawsuits: lawsuits that attempt 
to force the gun industry to pay for the crimes of third parties over 
whom they have no control.
  We have tried to make that limitation clear in the bill in several 
ways. For instance, section 2 of the bill says its No. 1 purpose is:

       To prohibit causes of action against manufacturers, 
     distributors, dealers, and importers of firearms or 
     ammunition products for the harm caused by the criminal or 
     unlawful misuse of firearm products or ammunition products by 
     others when the product functioned as designed and intended.

  We have also tried to make the bill's narrow purpose clear by 
defining the kind of lawsuit that is prohibited. Section 4 defines the 
one and only kind of lawsuit prohibited by this bill. Let me repeat 
that. Section 4 defines the one and only kind of lawsuit prohibited by 
this bill. Let me quote:

       a civil action 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 . . .

  We have also tried to make the narrow scope of the bill clear by 
listing specific kinds of lawsuits that are not prohibited. Section 4 
says they include: actions for harm resulting from defects in the 
firearm itself when used as intended--that is product liability suits--
actions based on the negligence or negligent entrustment by the gun 
manufacturer, seller, or trade association; actions for breach of 
contract by those parties.
  Furthermore, if someone has been convicted under title 18, section 
924(h), in plain English, that means someone who has been convicted of 
transferring a firearm knowing that the gun will be used to commit a 
crime of violence or drug trafficking, that individual is not shielded 
from a civil lawsuit by someone harmed by the firearms transfer.
  Finally, the bill does not protect any member of the gun industry 
from lawsuits for harm resulting from any illegal action they have 
committed. Let me repeat that. If a gun dealer, manufacturer, or trade 
association violates the law, this bill is not going to protect them 
from a lawsuit brought against them for harm resulting from that 
misconduct.
  What I have listed for my colleagues' convenience is all spelled out 
in section 4 of the bill. We have been through that section several 
times over the last several days. Again, this is a rundown of the 
universe of lawsuits against members of the firearms industry that 
would not be stopped--I repeat, not be stopped--by this narrowly 
targeted bill.
  What all these nonprohibited lawsuits have in common is that they 
involve actual misconduct or wrongful actions of some sort by a gun 
manufacturer, seller, or trade association. Whether you support or 
oppose the bill, I think we can all agree that individuals should not 
be shielded from the legal repercussions of their own lawless acts. The 
Protection of Lawful Commerce in Arms Act expressly does not provide 
such a shield.
  I am going to repeat this again because some opponents continue to 
mischaracterize the bill. This is not a gun industry immunity bill. It 
prohibits one kind of lawsuit: a suit trying to fix the blame of a 
third party's criminal acts or misdeeds on the manufacturer or seller 
of the firearm used in that crime.
  Even though this is a narrowly focused bill, it is an extremely 
important bill. The junk lawsuits we are addressing today would reverse 
a longstanding legal principle in this country that manufacturers of 
products are not responsible for the criminal--I repeat, the criminal--
misuse of their products.
  You do not have to be a lawyer to know that runaway juries and 
activist judges can turn common sense on its head in specific cases, 
setting precedents that have had dramatic repercussions. The potential 
repercussions here could be devastating.
  If a gun manufacturer is held liable for the harm done by a criminal 
for misusing a gun, then there is nothing to stop the manufacturers of 
any products used in crimes from having to bear the cost of those 
crimes. Since when is this country going to step to that level? So 
automobile manufacturers will have to take the blame for the death of a 
bystander who gets in the way of a drunk driver? Yes, there are some 
who would suggest that. The local hardware store will be held 
responsible for a kitchen knife it sold that was later used in the 
crime of rape? A baseball team, whose bat was used to bludgeon a 
victim, will have to pay for the cost of that crime?
  Now, does that sound silly to the average listener? It may. But those 
kinds of charges are being brought today because this country does not 
want to hold its criminal element accountable, in many instances.
  It is not just unfair to hold law-abiding businesses and workers 
responsible for criminal misconduct with the products they make and 
sell, but it would also bring havoc to our marketplaces.
  Hold on to your wallets, America, because those businesses that don't 
actually go into bankruptcy will have to pass their costs through to 
the consumer. My guess is that many in the anti-gun community would 
say: That is just fine; if we cannot bankrupt the business, then let's 
price the product out of the range of the average law-abiding citizen 
who would like to afford a gun. To the criminal element that probably 
steals for a living, they may have the kind of funds to buy that gun in 
the black market at any price, and oftentimes they do.
  Even without being successful, this litigation imposes enormous 
financial burdens on the gun industry. It is important to keep in mind 
that the deep pocket of the gun industry isn't all that deep. In 
hearings on the House side, experts testified that the firearms 
industry, taken together--I mean put them all together, look at their 
assets, their income--would not collectively equal one Fortune 500 
company.
  Last year it was estimated--and we can only estimate because the 
costs of litigation are confidential business information--that these 
baseless lawsuits have cost the firearms industry more than $100 
million. Furthermore, don't think these companies can just pass the 
costs off to their insurer because in nearly every case, insurance 
carriers have denied coverage.
  I quote from what a Massachusetts union had to say about the issue, 
the union whose members work at the Savage Arms Company in Westfield, 
MA:

       Today, we have 160 members from Savage workforce. By 
     comparison, about a dozen years ago, we had over 500 Savage 
     workers who were members of our Local. . . .

  Savage Arms is not alone. Other businesses have closed their doors, 
and the jobs have not been lost because of the sheer cost, the jobs 
have been lost because of the sheer cost of fighting these junk 
lawsuits.
  The impact on innocent workers and communities is not the only 
potential repercussion of these lawsuits. If U.S. firearms 
manufacturers close their doors, where will our military and peace 
officers have to go to obtain their guns? Do we then have to start a 
government gun manufacturing company? I doubt that the efficiencies and 
the qualities and the costs would be the same. Surely we don't want 
foreign suppliers to control our national defense and community law 
enforcement, not to mention the ability of individual American citizens 
to exercise their second amendment protected rights through accessing 
firearms for self-defense, recreation, and other lawful purposes.

[[Page S1862]]

  For all these reasons, more than 30 States have laws on the books 
offering some protection for the gun industry from these extraordinary 
suits. Support has steadily grown in Congress for taking action at the 
Federal level. This would not be the first time Congress had acted to 
prevent this kind of threat to industries. Some would suggest it is 
unprecedented, it has never happened before.
  Let me give an example. There are a number of Members in this Chamber 
who were serving when the Congress passed the General Aviation 
Revitalization Act barring product liability suits against 
manufacturers of planes that were more than 18 years old. Just a couple 
of years ago, in the Homeland Security Act, Congress placed limits on 
the liability of a half a dozen industries, including manufacturers of 
smallpox vaccine and sellers of antiterrorist technologies. These 
are only a couple examples out of a significant list of Federal tort 
reform measures that have been enacted over the years when Congress 
perceived a need to protect a specific sector of our economy or defense 
interests from burdensome, unfair, and/or frivolous litigation.

  I could go on. I have said enough for the moment. My colleagues are 
here. Senator Reed, who is handling the opposition, has statements to 
make. I believe Senator Levin has an amendment he would like to offer. 
But clearly, this is an issue whose time has come. It is time to step 
out and say: We are not going to suggest to law-abiding citizens that 
you ought to bear the brunt of the criminal action. That is not the 
case. Law-abiding citizens already bear a substantial amount of that 
brunt. Taxpayers usually pick up most of the bills in these tragic 
instances. That is why enforcing the law, putting those who misuse 
firearms behind bars, is what it really ought to be all about.
  But for social purposes, for political purposes, for whatever reason 
that the anti-gun community has not been able to legislate either on 
the floor of the Senate, on the floor of the House, or in State 
legislatures across the Nation, they now run to the court system.
  We suggest they can't do that, nor should they do that. We want to 
protect the victims. We certainly want to protect them from the 
criminal element. Much legislation is talked about now for the victim 
and victims' rights. I support all of those kinds of things. But why 
should the law-abiding manufacturer of any product in this country, 
that is quality but simply misused and that misuse takes the life of a 
third party--why should that manufacturer be responsible? We already 
have a broad range of areas in which that responsibility is described 
and in which the consumer is protected if that responsibility is not 
followed by the manufacturer or those who sell that product in the 
marketplace. That is an arena that is well litigated today. That is an 
arena in tort law that is well spelled out.
  Here today and in past lawsuits, we have had great imagination that 
tries to cook up the issue of negligence or to redefine it or shape it 
in a way that Americans have said and that tort law has said for 
centuries: You shall not go there; you cannot go there.
  Judges are saying that today and have said it consistently in these 
kinds of lawsuits. That doesn't stop the lawsuits from coming. That 
does not stop these lawsuits from draining hundreds of millions of 
dollars out of a law-abiding, responsible commercial and manufacturer 
entities.
  I reserve the remainder of my time and yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Rhode Island.
  Mr. REED. Madam President, the legislation before us can't be all 
things. It can't be an effective barrier against litigation to protect 
the gun industry and yet a way to protect the legitimate rights of 
citizens who have been harmed by guns.
  In fact, it is not both; it is one of them. It is carefully, cleverly 
worded legislation to immunize the gun industry--dealers, 
manufacturers, and the National Rifle Association--from any type of 
liability with respect to guns, virtually.
  There are perhaps minor exceptions, but the cases we see before us 
today--the case of the DC snipers, the case of two police officers in 
New Jersey--would be barred. These cases have already been filed. In 
fact, one of the sweeping aspects of this legislation is, it doesn't 
attempt to set the rules prospectively, to say as we go forward these 
cases would not be heard by the courts. It literally walks in and tells 
people who have filed cases, cases that have survived summary judgment 
motions already by State court judges: You are out of court.
  This is sweeping, and it is unprecedented. It deals a serious blow to 
citizens throughout this country while enhancing dramatically the legal 
protections for the gun industry.
  Consistently the proponents say: You can't hold someone responsible 
for the criminal actions of another. That is not what these cases are 
about. These cases suggest, declare, allege that an individual failed 
in his or her duties, his or her responsibility to do what is 
necessary, responsibility in the conduct of their activity--in the case 
of gun dealers, to take sensible, reasonable precautions, the standard 
of care that a business person would use, the standard of care that any 
business person must use in the United States.
  The allegation is they fail to do that. The evidence is overwhelming 
there was no standard of adequate care. Here is a gun dealer who could 
not account for 238 weapons, who claims a teenager--he didn't realize 
it at the time--must have walked in and shoplifted an automatic weapon, 
a sniper weapon, and carried it away undetected. In fact, this weapon 
was missing without his knowledge for weeks and months, undetermined.
  Is that the standard of care we would expect a businessperson to 
exercise, particularly one who deals in products that can kill? I don't 
think so. That is what this is about. This is not about punishing 
people for the criminal activity of others. It is about holding 
individuals up to a standard of conduct we expect from anyone. There 
are various examples. Some say, my God, if the hardware store sells a 
knife to somebody and it is used in a crime, they are not responsible. 
If you have a car dealer who leaves the keys in the cars and has no 
security, and a teenager takes that car and gets into an accident and 
harms someone, certainly I think the parents of the individuals harmed 
or that individual could legitimately go to court and say this dealer 
didn't meet the rational standard of care of anybody in the automobile 
industry. They have to secure these cars. You cannot make them 
available to people and teenagers who might steal them. That is common 
sense.
  That would apply to the automobile dealer, but if this legislation 
passes, common sense doesn't apply to the gun industry in this country. 
In fact, this is really a license for irresponsibility we are 
considering today. As I said before, when they get the Federal firearms 
license, if this bill passes, you can get another license. You are 
being irresponsible. That is not to suggest all dealers are 
irresponsible, but many are.
  We talk about junk lawsuits. It is not a junk lawsuit when your 
husband has been shot while sitting in the bus waiting to go to work. I 
don't think the Johnson family volunteered to be part of this social 
experiment. I think any suggestion to that effect is offensive. They 
have been harmed grievously. A wife has lost her husband; children have 
lost their father. Their livelihoods are in question. They seek 
redress, as anyone would. That is not a junk suit. That is someone who 
says I have been harmed by the negligence of someone and that person 
should pay.
  The suggestion that this suit is in response to some avalanche of 
lawsuits that is devastating the firearm manufacturers is without any 
foundation. The industry is so stressed they have raised $100 million 
to protect themselves, not just legally, but also in terms of 
controlling the documents and communications between themselves and 
their attorneys. This is not an industry that seems to be without 
resources. But I can tell you many of the families of victims of the 
Washington snipers are looking forward to a lifetime where they might 
have the resources to send children to college and do the things they 
would have been able to do if their spouse was still alive. The 
industry, it has been suggested, is being pushed into bankruptcy 
because of these frivolous junk lawsuits.
  Well, Savage Arms was mentioned. It is a company that was founded in 
1894. It has provided firearms for now over a century. It went bankrupt 
in 1988 because, according to the CEO, Ron

[[Page S1863]]

Coburn: ``We had too many products, each of them in dire need of re-
engineering.''
  There is no suggestion they were being intimidated by these fancy 
political science lawsuits. Under the bankruptcy plan, Coburn reduced 
the product line and fired 400 employees. There has been contraction in 
this industry, as in every manufacturing industry, but it is not as a 
result of these suits.
  Since that time, Savage has done remarkably well. They have taken the 
lead in many different aspects. They are a responsible company. They 
were honored as manufacturer of the year and in many other aspects. It 
has been suggested this company, in effect, is overwhelmed by these 
lawsuits. I don't think that is the case. I think they make business 
judgments as any business--based upon products, demand, and all these 
things.
  We are not facing a situation where we would be without the benefit 
of gun manufacturers in the United States because of these lawsuits. 
The suggestion that this somehow would interfere with our national 
security is outlandish. The suggestion we would then have to turn to 
foreign suppliers for our military is rather odd. Indeed, today, many 
of the suppliers for our national defense are the subsidiaries of 
foreign companies. Browning, Winchester and Fabrique Nationale, which 
supplies M-16 A-4 assault rifles and the M-2 49G squad automatic 
weapon, are subsidiaries of Herstal, a Belgium firm. The Pentagon 
contracted with Heckler and Koch, a German firm, to help develop the 
next generation of industry weapons.
  Clearly, the Pentagon doesn't feel American manufacturers are so 
distressed that they have to go overseas. They are going overseas 
because they are looking for superior weapons. They are dealing with 
American subsidiaries of foreign companies. This is not about 
preserving the defense and the ability to access weapons. This is about 
protecting one industry from the legal responsibility to exercise 
caution any individual must exercise--one industry, when all industries 
must do that, or indeed the vast majority. This is not about protecting 
the integrity of the courts. What does it say to the integrity of the 
courts of West Virginia when a judge already found that a suit 
involving these two New Jersey police officers should proceed, when we 
say, no, you are wrong, this case is out the door? This is not about 
protecting courts. It is about protecting an industry.
  We have been asked to look closely at the law. We have to look 
closely at the law in terms of the cases we know are pending because, 
frankly, we could hypothesize about cases in the future. This is the 
law:

       A qualified civil liability action may not be brought in 
     any Federal or State court.

  That is not a particularly narrow excerpt. It is not a listing of 
those exemptions the gun industry made available themselves. This is 
broad and sweeping, barring the doors of these types of suits. In 
addition to that--talking about overreaching, dismissal of pending 
actions--it is rare indeed that this Congress could go in and tell 
plaintiffs who have a case in progress you are out the door, you cannot 
proceed. This is extraordinary, to me.

       A qualified civil liability action that is pending on the 
     date of enactment of this act shall be immediately dismissed 
     by the court.

  Not reviewed but dismissed. I think, again, that is extraordinarily 
broad and sweeping. The real aspect of this legislation goes to the 
definition on the next chart.

       A qualified civil liability action means a civil action 
     brought by any person against a manufacturer or a seller of a 
     qualified product or trade association, for damages resulting 
     from the criminal or unlawful misuse of the qualified product 
     by the person or a third party, but shall not include--

  So it is any action, again not narrowly constrained, carefully worded 
legislation.
  Then there are several exemptions. Let me point out, if this were a 
narrowly crafted piece of legislation, the exemption I think should 
apply to the gun industry, not to the litigants. It should be those 
safe harbors where if they do certain things, they are protected, if 
they exercise due care. That is the way we want to draft narrowly 
worded legislation. And this is quite to the contrary.
  The burden is now on the individual to show that they qualify to 
bring their case to court, not on the companies to show that their case 
is somehow outside the normal range of negligent actions.
  The key provision, in terms of the sniper case--and I will talk about 
the sniper case in a moment--is sections ii and iii. Madam President, 
ii is ``actions brought against a seller for ``negligent entrustment'' 
or ``negligence per se.''
  Negligent entrustment is a defined term in the legislation. It means:

       . . . 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 to is likely to, 
     and does, use the product in a manner involving unreasonable 
     risk of physical injury to the person or others.

  The key element is ``know.'' For example, in the sniper case, the 
dealer claims he did not know that the weapon was missing. It has been 
acknowledged by the sniper that the weapon was shoplifted. This theory 
will not provide that case to go forward.
  ``Negligence per se,'' again, is an element of knowledge which does 
not seem to exist within the facts as we know them about the Bull's Eye 
situation. By the way, it has been abrogated as a theory of law in 
Washington State which would be an appropriate forum for the trial, or 
at least for consideration. That doesn't work.
  The next section is actions in which a manufacturer or seller of a 
qualified product who violated a State or Federal statute and, quite 
importantly, that violation was a proximate cause of the harm.
  In the case of the sniper shootings, literally it would have to be 
shown that the individual gun dealer at Bull's Eye knew the particular 
weapon was missing more than 48 hours before he was confronted by the 
ATF and that he failed to report it and, as a result, the sniper using 
that weapon inflicted the harm. But, of course, the facts suggest 
otherwise. The weapon was shoplifted. The individual claimed he did not 
know it was missing at all.
  All of these carefully worded exceptions do not provide relief for 
individual plaintiffs. They do not provide it for the plaintiffs in the 
case of the snipers. They do not provide relief in the case of the two 
police officers in New Jersey. Yesterday, we had an opportunity to 
correct that, just a small correction that would allow for these 
situations, and we failed to do that.
  This legislation is designed with one purpose: to immunize the gun 
industry. I think it is unfortunate, it is unprecedented, and it leads 
to the conclusion that we are essentially encouraging the kind of 
reckless behavior, the kind of irresponsible behavior which is not the 
norm, but it is certainly present and, indeed, it is present in the 
context that firearms pose a particular danger to the community.
  We talked about Bull's Eye Shooter Supply in Tacoma, WA, over 238 
weapons missing. You are not supposed to have any weapons missing.
  Then there are the situations, for example, of Buckner Enterprises, 
Pro Guns and Sporting Goods, D&D Discount, Hock Shop, Julie's Pawn, 
Kent Arms, Northwest Shooters, Woodstove Supply, and Steve's Guns and 
Archery, all in Michigan.
  Over a 4-month period, an undercover State trooper and a 20-year-old 
convicted felon traveled to 14 firearms retailers and attempted to make 
a straw purchase. The eight stores I mentioned above agreed to make the 
straw deal--irresponsible and reckless and, under this legislation, 
perhaps invulnerable to a suit by someone who might have been hurt as a 
result of the potential straw sales.
  Bob's Gunshop, Bristol, PA, repeatedly sold firearms to convicted 
felons and out-of-State residents, including a 9 mm Taurus sold to a 
New Jersey convicted felon. The owners of the store counseled criminals 
and out-of-State residents to find a local resident to complete the 
background check.
  Is that irresponsible? Yes. Is that against the law? Perhaps not.
  It goes on and on. One gun store with which I am intrigued is 
Illinois Gun Works in Chicago, IL. John ``No Nose'' DiFronzo, a reputed 
mobster, owns the property where Illinois Gun works is located. 
Illinois Gun Works is one of the leading suppliers of crime guns to 
local criminals. This is from the Chicago Sun Times.
  There are gun dealers out there who are acting irresponsibly and 
negligently. They will escape liability if this legislation passes. 
There are manufacturers that are not policing the

[[Page S1864]]

ranks of their dealers effectively enough who continue to sell to 
dealers such as these, who continue to report, as Bushmaster, the 
company that manufactured the sniper weapon, reported in regard to 
Bull's Eye. They are a good company. Even after all of this, they will 
escape liability.
  We are in an extraordinarily important moment. Will we extend this 
unprecedented protection to an industry, will we signal to an industry 
that they can be irresponsible, they can be negligent? That is what we 
are talking about today.
  I know my colleague, Senator Levin, is here to offer an amendment. 
Let me ask that he be allowed to do that. I retain my time for 
additional comments later.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. CRAIG. Madam President, may I briefly say, I think the Senator is 
here for the offering of an amendment, and then I believe Senator 
Warner would like to follow him in the offering of an amendment. If 
there is no objection, I ask unanimous consent that be the procedure.
  Mr. LEVIN. Reserving the right to object, it is my understanding the 
Senator from Virginia wants to offer an amendment.
  Mr. WARNER. Following the Senator from Michigan, that is correct.
  Mr. LEVIN. Madam President, I ask the Senator from Virginia, is it a 
second-degree amendment?
  Mr. WARNER. Madam President, no, it is a freestanding amendment in no 
way related to the amendment of my distinguished colleague from 
Michigan.
  Mr. LEVIN. I would agree to that providing--
  Mr. CRAIG. Let me clarify--
  Mr. LEVIN. I want to make sure we get a vote on my amendment. This is 
what this is all about. We might as well get this out in the open as to 
whether or not there will be votes that will be agreed to on the 
amendments that are offered. The unanimous consent agreement talked 
about amendments being offered today and Monday. The Senator from 
Idaho, I think, as well as I believe the Senator from Nevada, talked 
about votes on these amendments, but it is not clear in the UC that the 
amendments offered would be voted upon.
  I do not want to lose the regular order that my amendment would be 
disposed of by agreeing to a unanimous consent agreement that my good 
friend from Virginia would then come next. That is the issue, I tell my 
good friend from Idaho.
  Mr. CRAIG. If the Senator will yield.
  Mr. LEVIN. I will be happy to yield.
  Mr. CRAIG. It is our belief, it is my purpose today to disallow any 
votes from occurring. There will be no votes today.
  Mr. LEVIN. Of course.
  Mr. CRAIG. On any action. The Senator can offer his amendment. We 
have just seen it. Senator Reed and I will review it over the weekend, 
or our staffs will. I think that is fair and appropriate. Because the 
amendment of the Senator from Virginia is not in the second degree, it 
is my understanding the amendment of the Senator from Michigan would 
have to be set aside for the purpose of offering the amendment by the 
Senator from Virginia.
  Mr. LEVIN. I would then offer--Madam President, do I have the floor?
  The PRESIDING OFFICER. The Senator from Michigan has the floor.
  Mr. LEVIN. I then suggest the amendment in a unanimous consent 
request, that my amendment again be the regular order first thing on 
Monday. The reason for this is that it is important to assure that 
there be votes on these amendments. I do not know what the intention of 
the Senator from Idaho is relative to----
  Mr. CRAIG. I object to that unanimous consent. There may be other 
amendments offered today by other parties.
  Mr. LEVIN. I have no objection, of course, to that, but my question 
to the Senator from Idaho is, is it the intention of the Senator from 
Idaho that there be votes on amendments that are offered on Monday?
  Mr. CRAIG. I believe the leadership on both sides intends for there 
to be votes, or a vote on an amendment, but I cannot tell the Senator 
what that amendment will be. I object to a specific amendment at this 
time.
  Mr. LEVIN. Then I would have to object because otherwise I am no 
longer the regular order.
  The PRESIDING OFFICER. The objection is heard.
  Mr. WARNER. Might I seek a clarification from the distinguished floor 
manager?
  The PRESIDING OFFICER. The Senator from Michigan has the floor.
  Mr. LEVIN. I am happy to yield for a question without losing my right 
to the floor.
  Mr. WARNER. Well, I do not seek to take the floor, but if the Senator 
carried out his objection to the full meaning, it would prohibit any 
amendments coming up today unless the Senator agreed to laying his 
amendment aside so that another amendment could come up. Is that the 
desire of the Senator?
  Mr. LEVIN. Not at all. My desire is that I not lose my opportunity to 
have a vote on my amendment.
  I do not want a vote today. Let's be very clear on this. When the 
operating UC was entered into, it was my understanding that amendments 
would be allowed to be offered today and Monday. It was also my 
understanding that there was an intention that that meant those 
amendments would be voted on at some point--not today but at some 
point. If there is any doubt that that is the intention of the 
leadership or of the floor managers, to allow votes on amendments that 
are offered today, the only way I can come close to having assurance 
that there will be a vote on my amendment at some point will be to 
modify any UC to agree to set aside my amendment, which will be fine, 
but then make it a part of the UC that my amendment then be the 
amendment that is in order on Monday, because otherwise I am weakening 
the position I have.
  Mr. WARNER. Madam President, there is no intention of this Senator to 
weaken. As a matter of fact, I intend to vote in favor of the Senator's 
amendment, subject to a colloquy we will have to clarify a question I 
have in my mind. But the Senate must go forward today on amendments. I 
am trying to figure out what is the procedure by which we do it so that 
my colleague from Michigan is protected.
  The PRESIDING OFFICER. The Senator from Michigan has the floor.
  Mr. LEVIN. I have no objection to yielding the floor for an answer to 
that question, without losing my right to the floor.

  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Certainly the explanation of the Senator as to what 
leadership proposed in the unanimous consent request, that amendments 
could be offered today and Monday, is accurate. But the unanimous 
consent request guaranteed votes only to those amendments that were 
within the unanimous consent request. I am not today going to allow 
that unanimous consent request to be amended for the purpose of 
stacking up a variety of votes. I am willing to look at that on Monday. 
I have not yet seen the Senator's amendment. We just received it. We 
are reviewing it now. There may be other amendments I want to review 
with staff over the weekend.
  So I renew my objection to allowing the Senator to become in order 
again. We have an amendment that we did not get to last night, and that 
is Senator Bingaman's amendment that was in order under the unanimous 
consent agreement. The hour was late and most were wanting to go home. 
The Senator was kind enough to put that vote over. It is my 
understanding that that will be at least one amendment that could be 
voted on, because it is entitled to be voted on within the unanimous 
consent agreement, late Monday afternoon.
  Mr. LEVIN. I thank my good friend from Idaho.


                           Amendment No. 2631

  Mr. LEVIN. Madam President, I send my amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant Journal clerk read as follows:

       The Senator from Michigan [Mr. Levin] proposes an amendment 
     numbered 2631:

    (Purpose: To exempt any civil action against a person from the 
 provisions of the bill if the gross negligence or reckless conduct of 
             the person proximately caused death or injury)

       On page 11, after line 19, add the following:

[[Page S1865]]

     SEC. 5. GROSS NEGLIGENCE OR RECKLESS CONDUCT.

       (a) In General.--None of the provisions in the Act shall be 
     construed to prohibit a civil liability action from being 
     brought or continued against a person if that person's own 
     gross negligence or reckless conduct was a proximate cause of 
     death or injury.
       (b) Definitions.--As used in this section--
       (1) the term ``gross negligence'' has the meaning given the 
     term in subsection (b)(7) of the Bill Emerson Good Samaritan 
     Food Donation Act (42 U.S.C. 1791(b)(7)); and
       (2) the term ``reckless'' has the meaning given the term in 
     the application notes under section 2A1.4 of the Federal 
     Sentencing Guidelines Manual.

  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Madam President, let us try to sort this out so that the 
Senator from Virginia is not left out.
  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. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Madam President, let me place a unanimous consent request 
to facilitate actions of the two Senators on the floor. I ask unanimous 
consent the Levin amendment be temporarily set aside for the purpose of 
allowing the Senator from Virginia to offer his amendment. Once that 
amendment is offered and discussed, the Warner amendment would then be 
set aside for the purpose of returning to the Levin amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. Do I understand, then, that the Levin amendment would 
continue to be the regular order under that unanimous consent?
  Mr. WARNER. I believe that is correct, yes.
  The PRESIDING OFFICER. It would be the pending question.
  Mr. LEVIN. I thank the Senator from Idaho. It is fine with me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. I thank the Senator for his cooperation and turn to the 
Senator from Virginia.


                           Amendment No. 2624

  Mr. WARNER. I thank my colleagues. I ask that amendment No. 2624 be 
the pending business.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The senior Journal clerk read as follows:

       The Senator from Virginia [Mr. Warner] proposes an 
     amendment numbered 2624.

  Mr. WARNER. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. WARNER. Madam President, I want to make it eminently clear that I 
desire in every way to cooperate with the joint leadership which, in a 
bipartisan way, has indicated their desire, together with expressions 
of the President, that this bill move forward. This is not a dilatory 
tactic on my part, nor is it to be construed in any way as a political 
tactic. The subject of this amendment simply is a very heartfelt, 
personal matter for me.
  Each of us counts our joys and benefits through life. I was blessed 
with two very strong and wonderful parents. My father devoted his life 
to the medical profession. He served in World War I as a very young 
doctor in the trenches. He returned a decorated soldier, and 
established his practice as a surgeon. He concluded a lifetime of total 
dedication to the profession of medicine, his patients, and the healing 
of those who have the misfortune of illnesses and other diseases. It is 
for that reason I bring up this amendment for consideration in the 
Senate. In brief, this amendment states that if the Senate believes 
certain protections from lawsuits should be afforded to the gun 
industry, then certain protections should be likewise afforded to the 
medical profession. It is as simple as that.
  Earlier this week, we dealt with a similar piece of legislation. But 
this amendment differs in the sense that I have purposely removed any 
reference to insurance companies or to those companies engaged in the 
manufacture of healing drugs. I have done this to point out with 
absolute clarity in the minds of all Senators that if the underlying 
bill does move forward, then should comparable fair treatment be 
extended to the medical profession that serves every single American.
  The gun industry has a narrow following, in terms of those served 
under this bill. I don't say that with any disrespect. I, throughout my 
life, have owned and enjoyed guns. My father gave me my first gun when 
I was 9 years old, and I have a modest collection to this day. I enjoy 
the fields and the streams. I pride myself as being a hunter and an 
outdoorsman. In no way, do I make any personal affront against those 
who similarly follow the joys of the outdoors.
  But, I believe it is essential that if this mighty institution of the 
Senate move forward with the underlying bill, they carry with it an 
amendment which accords the same protections to the medical 
profession, whether it is an emergency room or the doctor's office.

  With that in mind, I hope my colleagues look upon my effort as one of 
purity of heart, and not for political reason. I have no reason to try 
to impede the underlying bill, but I simply want to give the medical 
profession such benefits as the Senate is now contemplating in giving 
to a very narrow segment of our industry; namely, the gun industry and 
the gun dealers.
  I rise today to offer an amendment to address the issue of a form of 
tort reform. Today the Senate is debating tort reform for the gun 
industry. I wish to take a few minutes to raise the issue of tort 
reform with regard to another industry--the health care profession.
  I have indicated my father's lifework was in medicine. I had often 
thought as a young man to pursue that profession. But without getting 
too personal about this, I served briefly in World War II in the Navy. 
My father died just months after I returned home. I think had he lived 
I might well have followed in his profession. But nevertheless, I went 
on to law school, and had a modest career in the practice of law and in 
one thing and another. And here I am today, proud to represent my great 
State in the Senate.
  Soon, the Senate will vote on S. 1805, legislation to provide certain 
legal protections to the gun industry--legal protections which are 
denied almost across the board to almost every other industry in the 
private sector, and certainly the medical profession.
  It is a very selective piece of legislation for a very selective 
group. Proponents have argued this legislation is necessary because 
lawsuits are driving gun dealers and gun manufacturers out of business.
  It is very simple. The same thing is happening to the medical 
profession. Simply stated, the same situation, although far more 
serious in my judgment and in the judgment of others, is happening to 
the medical profession. Doctors, nurses, and other health care 
professionals are leaving the practice of medicine due to the 
astronomical cost of malpractice insurance, frivolous lawsuits, and 
what is regarded as runaway jury verdicts where awards, by any standard 
of fairness, far exceed the damages which some may have suffered as a 
consequence of receiving medical attention.
  In my view, if we are going to be protecting the gun industry from 
lawsuits, we at least ought to protect the medical profession. We have 
all heard the real stories from doctors about the rapidly increasing 
cost of medical malpractice insurance. Some States' malpractice 
insurance premiums have increased as much as 75 percent in a single 
year.
  As a result, the fact is these doctors, unable to afford ever 
increasing premiums, are leaving the profession altogether and patients 
are losing access to health care.
  Again, my father's profession was surgery primarily, but he also 
practiced gynecology.
  I was astonished to learn that in many medical schools today those 
young people studying to go into the various segments of medical 
practice are shunning gynecology. Some medical schools are not even 
graduating those engaged in gynecology. They have just stopped that 
segment of the profession because they know of the difficulties to 
practice gynecology as a result of medical malpractice suits.
  I have here today the front pages of two of the leading magazines we 
all read. There it is. One: ``The Doctor Is

[[Page S1866]]

Out.'' The other: ``Lawsuit Hell--How Fear of Litigation Is Paralyzing 
Our Professions.''
  There is the story.
  All I am asking is if this bill passes the Senate that doctors, 
nurses, and other practitioners in health care are given the same equal 
treatment as the gun dealers and the gun manufacturers. It is as simple 
as that.
  I have received numerous letters, as have every single Member of this 
body, from medical professionals in the Commonwealth of Virginia that 
share with me the very real difficulties they are encountering with 
malpractice insurance as a consequence of this problem.
  I myself went through a modest medical procedure the other day. The 
radiologist literally cornered me as I was exiting the examination, and 
stopped to talk to me--not one, not two, but about eight came in 
knowing the Senator from Virginia was in the facility. They had me flat 
on my back. I listened very carefully as they explained--not 
complaining nor whining in any way, but in a factual way--how the 
radiologists in their profession have watched the astronomical increase 
in cost of their insurance.
  Let me read a letter I just received. I will withhold the name. But 
the letter is in my office. This young doctor writes:

       I am writing you to elicit your support and advice for the 
     acute malpractice crisis going on in Virginia. . . . I am a 
     48-year-old single parent of a 14- and 17-year-old. After all 
     the time and money spent training to practice OB-GYN, I find 
     myself on the verge of almost certain unemployment and 
     unemployability because of the malpractice crisis. I have 
     been employed by a small OB-GYN Group for the last 7 years. 
     Our malpractice premiums were increased by 60 percent in May 
     2003. The prediction from our malpractice carrier is that our 
     rates will probably double at our renewal date in May 2004. 
     The reality is that we will not be able to keep the practice 
     open and cover the malpractice insurance along with other 
     expenses of practice.

  Colleagues, that is happening in just about every State in this great 
country of ours. We have here and now the chance to address this crisis 
in a fair and constructive way.
  I mentioned the two magazines: The June 2003 edition of Time magazine 
had a cover story on the effects of rising malpractice insurance costs. 
The story, entitled ``The Doctor Is Out,'' discusses several doctors 
all across America who have had to either stop practicing medicine or 
have had to take other action due to increased insurance premiums. One 
example cited in this magazine is the case of Dr. Mary-Emma Beres. Time 
reports this doctor, a family practitioner from Sparta, NC--
incidentally, the distinguished Presiding Officer represents this State 
with great distinction. That doctor in Sparta, NC ``has always loved 
delivering babies. But last year, Beres, 35 years old, concluded that 
she couldn't afford the tripling of her $17,000 malpractice premium and 
had to stop'' caring for those women going through perhaps the greatest 
joy of life; that is, childbirth.
  The article continues:
  ``With just one obstetrician left in town for high-risk cases, some 
women who need C-sections now must take a 40-minute ambulance ride'' to 
other communities to try to get that service.
  Dr. Beres' case makes clear that not only doctors are being affected 
by the medical practice insurance crisis, but patients are as well. 
With increased frequency, due to rising malpractice rates, more and 
more patients are not able to find the medical specialists they need.
  The second magazine, Newsweek, also recently had a cover story on the 
medical liability crisis entitled ``Lawsuit Hell.''
  I was particularly struck by the feature in this magazine about a 
doctor from Ohio who saw his malpractice premiums rise in 1 year from 
$12,000 to $57,000--1 year. As a result, this doctor ``decided to lower 
his bill by cutting out higher-risk procedures like vasectomies, 
setting broken bones and delivering babies--even though obstetrics was 
his favorite part of the practice. Now he glances wistfully at the 
cluster of baby photos still tacked to his wall in the office. 'I miss 
that part of the practice terribly,' he says.''

  While these stories are compelling on their own, the consequences of 
this malpractice crisis can be more profound. On February 11, 2003, a 
young woman in Gulfport, MS, shared with both the HELP Committee in the 
Senate, on which I serve, and the Judiciary Committee her personal 
story about how this crisis affected her.
  This woman told us how on July 5, 2002, her husband Tony was involved 
in a single car accident, in which he had a head injury, and was rushed 
to a hospital in Gulfport where he received medical attention. He could 
not be treated at the Gulfport hospital because they did not have the 
specialist necessary to care for him. After a 6-hour wait, he was 
airlifted to University Medical Center.
  Today, Tony is permanently brain damaged. According to the person 
delivering this story, no specialist was on staff that night in 
Gulfport because overriding medical costs forced almost all the brain 
specialists in that community to abandon their practice. As a result, 
Tony had to wait 6 hours before the only specialist left in Gulfport 
could treat him to reduce the swelling of his brain.
  Without a doubt, the astronomical increases in medical malpractice 
premiums are having wide-ranging effects. It is a national problem. It 
is time for a fair and national solution. This moment in the life of 
this great Senate is the chance to address that.
  The President has indicated that the medical liability system in 
America is largely responsible for the rising costs of malpractice 
insurance. The American Medical Association and the American College of 
Surgeons agree with him as does almost every doctor in Virginia who I 
have discussed the issue with.
  The president of the AMA, Dr. John Nelson, has publicly stated, ``We 
cannot afford the luxury of waiting until the liability crisis gets 
worse to take action. Too many patients will be hurt.''
  The American College of Surgeons concurs by stating, ``More and more 
Americans aren't getting the care they need when they need it. . . . 
The `disappearing doctor' phenomenon is getting progressively and 
rapidly worse. It is an increasingly serious threat to everyone's 
ability to get the care they need.''
  Let me state unequivocally that I agree with our President, with the 
AMA, with the American College of Surgeons, and with the vast majority 
of doctors all across Virginia. That is why I am offering my amendment 
today.
  My amendment is simple, like other measures that have come before the 
Senate, my amendment provides a nationwide cap on damages in medical 
malpractice lawsuits.
  My amendment differs from other measures that have been voted on in 
the Senate in one key aspect--whereas these other bills would have 
applied to doctors, my amendment is solely limited to the caring 
medical professionals who take care of each and every one of us when we 
need medical care.
  It is a commonsense solution to a serious problem.
  Now that I have laid out the amendment, I would like to reiterate one 
important point. As you know, the gun immunity bill provides broad 
protection to gun manufacturers and gun dealers in both Federal and 
State court. The bill is aimed at protecting the manufacturers and 
dealers from lawsuits that result from the criminal or unlawful use of 
a firearm. The basic data is that if a manufacturer or dealer follows 
the statutory law in the manufacturing and sale of a legal product, 
they should not be held responsible for the actions of a third party.
  While some may claim that this gun immunity bill might be an 
important component of tort reform, in my opinion, health care 
liability reform is even more important. We must protect the medical 
profession and the patients it serves.
  How can we give near absolute protection from litigation for one 
industry--the gun industry--and do absolutely nothing for another 
industry that is solely dedicated to saving lives?
  Let's ask ourselves, in the event that a bullet from a firearm is 
shot into an innocent victim, is our healthcare system prepared to help 
that victim? Without healthcare liability reform, it may not be, as 
there might not be the appropriate doctor in the area to tend to the 
patient. That is why my amendment goes hand-in-hand with the gun 
immunity bill.
  So now it is up to my colleagues in the Congress. It is your choice. 
If we are going to give legal protections to the gun industry, all I 
say is let's give it to the doctors as well.

[[Page S1867]]

  If you gave this choice to the American people, there is no doubt 
that the doctors would win by a 100 to 1 margin.
  I urge my colleagues to support my amendment.
  I yield the floor.


                           Amendment No. 2631

  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, what is the pending amendment?
  The PRESIDING OFFICER. The Senator's amendment is pending, the Levin 
amendment.
  Mr. LEVIN. Madam President, in the fall of 2002 the entire country 
was focused on the Washington, DC, area as an unknown sniper 
indiscriminately shot 16 innocent people in little more than a month, 
from September 14 to October 24. Among the sniper victims were Jim 
Martin, shot and killed on October 2 while walking across a Shoppers 
Food Warehouse parking lot in Wheaton, MD, after purchasing groceries 
for his church; Sarah Ramos was shot and killed while sitting on a 
bench in front of a post office. She was waiting for a ride to take her 
to a babysitting job; Thirteen-year-old Iran Brown, the youngest of the 
victims, was shot in the chest and wounded on October 7 after getting 
out of a car at his middle school; and Conrad Johnson, a 35-year-old 
busdriver, was shot and killed on October 22 while standing on the top 
step of his bus at a ride-on bus staging area in Aspen Hill, MD.
  On Thursday, October 24, members of the sniper task force arrested 
John Allen Muhammad and John Lee Boyd Malvo at a rest stop on I-75 in 
Frederick County. They were charged with shooting the victims with a 
Bushmaster semiautomatic assault rifle. Both were prohibited under 
Federal law from possessing a gun. Malvo is a juvenile and Muhammad was 
the subject of a domestic violence restraining order. Both have been 
convicted of capital murder in Virginia.
  The sniper rifle used by Malvo and Muhammad was later traced to 
Bull's Eye Shooter Supply in Takoma, WA. Bull's Eye representatives 
claim not to have any record of sale of the weapon, cannot account for 
how the snipers obtained the assault rifle. Malvo later admitted he had 
shoplifted the gun.
  The sniper case prompted an ATF investigation of Bull's Eye. The 
investigation revealed that the gun dealer had no record that the gun 
used by the snipers was missing from the inventory. The ATF 
investigation also determined that 77 other guns were missing from the 
Bull's Eye store. Four prior audits of the dealer found at least 160 
additional guns missing from the store. The guns that were missing from 
Bull's Eye were not all handguns that could walk out the door in 
somebody's pocket. The gun shoplifted by Malvo was an assault rifle.
  The families of the sniper victims filed a lawsuit against Bull's Eye 
and Bushmaster, the manufacturers that supplied the sniper weapon to 
the dealer, claiming that Bull's Eye operated its business in such a 
grossly negligent manner that scores of guns routinely disappeared from 
its store and that Bushmaster continued to supply that dealer even 
after years of audits by ATF showing that scores of guns were missing 
from the dealer's inventory.
  Did Bull's Eye or Bushmaster violate any Federal or State statute? 
That is the issue. That is the heart of the issue we are debating. If 
you are reckless in your operations, even though you may not have acted 
illegally, but if you are reckless or if you are grossly negligent in 
your operations, should you be held accountable for your own actions? 
That is the question. Should you be held accountable for your 
own reckless or grossly negligent actions if that gross negligence or 
recklessness is the proximate cause of somebody else's death or injury?

  That is what this amendment is all about. Frankly, that is what the 
bill is all about, to eliminate the possibility of recovery in cases 
where somebody can prove recklessness or negligence unless they can 
also prove illegality. That is the purpose of the bill, to give that 
immunity unless plaintiffs can prove illegality. The purpose of this 
amendment is to say that if you can prove gross negligence or 
recklessness on the part of an individual, and if that recklessness and 
gross negligence is the proximate cause of injury or death, then you 
are entitled to bring a lawsuit.
  I listened to this debate; I have not been here for much of it, but I 
read a great deal and tried to follow it. It seems to me that is the 
heart of the matter and what it comes down to. That is what this 
amendment is intended to clarify.
  Mr. WARNER. Could I ask my distinguished colleague a question, 
because Virginia was hard hit, as were Maryland and other States, by 
that sniper case, which the Senator recounted in the opening remarks.
  It is my understanding--and I have followed the debate very carefully 
on all aspects of this legislation--but the legislation, if it were to 
pass, would put in doubt, to some considerable extent, the right of the 
many families. The greater community of the Nation's Capital was in 
semiparalysis. Schools closed. People could not conduct their normal 
activities because of the sense of lack of safety. They could not even 
do something simple such as filling the gas tank of the car.
  It seems to me unless we let the full force and brunt of all the 
legal remedies available to citizens of our Nation be utilized to bring 
to justice, either civilly or criminally, all those who may have 
contributed--as the Senator says, by gross negligence--then we are 
denying, particularly to these sniper victims' families and others 
across the Nation, some very fundamental rights.
  I commend my distinguished colleague from Michigan. It is my intent 
to support the Senator.
  Am I correct in my premise, in my question?
  Mr. LEVIN. The Senator from Virginia is very much on point and is 
correct. This is a victim's right remedies issue. Do we provide a 
remedy for a victim of somebody's gross negligence or recklessness that 
has injured that victim where the proximate cause of the injury--or a 
proximate cause of the injury, to be technically correct--is the 
defendant's recklessness or gross negligence or are we going to deny 
victims that remedy? Are we going to tell a victim: You have to prove 
that someone violated a law in order to get recovery, even though you 
can prove gross negligence or recklessness. Even though you can prove 
that recklessness or gross negligence on the part of someone you sue 
was a proximate cause of death or injury, you have to prove that there 
was a violation of law?

  Why would we immunize any particular industry from that kind of 
recovery where it is not somebody else who is being sued for their 
contribution to somebody's injury but it is the industry itself or a 
gunstore itself or any store that contributed, through recklessness or 
gross negligence, to somebody's death or injury?
  I have read and heard a lot in this debate about individual 
responsibility and accountability, that you should not be accountable 
for somebody else's actions injuring somebody else, and I do not 
disagree with that. My amendment says where it is your own recklessness 
or gross negligence which is a proximate cause of an injury or a death, 
you should not be immunized. That is what my amendment provides, that 
if your own recklessness or your own gross negligence is a proximate 
cause of death or injury, you should still be held accountable.
  That is what we are going to be voting on. I hope we are going to be 
voting on it, I should say.
  Mr. WARNER. Mr. President, for clarification, when my distinguished 
colleague from Michigan refers to ``victims,'' we should make it clear 
that oftentimes victims perish, so it is their spouses, their families 
we are talking about. I think in our discussion we ought to make it 
clear it is a class of people we are trying to protect.
  Mr. LEVIN. The Senator is correct. In terms of the definition of 
``victims,'' we are talking here about families who lose loved ones as 
well as people who are injured themselves.
  I want to emphasize one fact here, which is there was a motion to 
dismiss this case in the State of Washington brought by victims against 
Bull's Eye and against Bushmaster. On June 27, 2003, the court denied 
the motions, and here is what the court said:

       [T]he facts in the present case indicate that a high degree 
     of risk of harm to the plaintiffs was created by Bull's Eye 
     Shooter Supply's alleged reckless or incompetent conduct in 
     distributing firearms.

  The court said it was the defendant's actions that caused damage to 
the

[[Page S1868]]

plaintiffs. It seems to me for us to say even though Bull's Eye caused 
damage through recklessness or gross negligence to victims, we are 
going to deny those victims a remedy unless they can prove there was an 
illegal action--not just a reckless action, but an illegal action--is 
to mistreat this particular class of victims.
  To single out this class of victims and say, ``You cannot recover 
unless you can prove illegal action on the part of the defendant''--not 
just that they were reckless, not just that they were negligent--I 
think is highly arbitrary and discriminatory treatment of real victims 
who right now can go to court, and if they can show reckless behavior, 
negligent behavior on the part of the defendants that was a proximate 
cause of their injury, then they can recover.
  I do not even know that Congress can constitutionally destroy the 
pending claim. I hope not. I hope we cannot destroy a claim that is 
pending for an injury that has already been caused, constitutionally, 
but I do know we should not try. We should not be trying to remove the 
rights of victims to sue people whose recklessness or gross negligence 
was a proximate cause of their injury.

  That is what this amendment would assure, that that right of action 
for recklessness or gross negligence which is a proximate cause of the 
injury can be compensated for.
  There are a number of other troubling cases that have been referred 
to that would be jeopardized. Again, I do not know that we can 
constitutionally eliminate a claim based on an action which has already 
taken place. I sure hope not. But I know what the intent of this bill 
is, which is to immunize the defendants whose reckless or negligent 
conduct is being sued upon.
  The Guzman case, on Christmas Eve 1999--this was a man who was killed 
by a shot to his heart while standing in front of a Worcester, MA, 
nightclub. About a week later, the police recovered a handgun in a lot 
near where this man, Danny Guzman, was killed. The gun was lacking a 
serial number. It was found by a 4-year-old child. A ballistics test 
determined the gun was the one that killed Danny Guzman.
  The investigation following the shooting revealed the gun was one of 
several stolen by employees of Kahr Arms. It was discovered that one of 
the employees in the Kahr manufacturing facility had stolen the gun 
used to kill Danny Guzman and sold it to buy crack cocaine.
  Publicly available records, summarized in a complaint filed by Danny 
Guzman's family, indicate this employee of the Kahr facility had not 
only been arrested on various charges over the years but as early as 
1995 had been addicted to cocaine and was ``habitually stealing money 
to support his cocaine habit.''
  In March of 2000, the police arrested the Kahr employee who later 
pled guilty to the gun thefts. The investigation also led to the arrest 
of a second Kahr employee who also pled guilty to stealing a gun.
  According to a complaint that was filed by Danny Guzman's family, 
Kahr Arms not only apparently hired a drug addict with a record of 
criminal charges, but the company also chose not to utilize basic 
security measures that could have prevented the theft, or an inventory 
tracking system that could have determined that guns were missing. 
According to the family's complaint, Kahr Arms did not conduct 
background checks on employees. The company did not install medal 
detectors, security cameras, x-ray machines, or other devices to ensure 
that employees did not just walk off with guns.
  In fact, an affidavit signed by ATF Special Agent Michael Curran says 
the person who stole the gun that ended up killing Danny Guzman once 
said--we all should listen to those words--``he had taken the firearm 
out of the company, that he does it all the time, and that he can just 
walk out with them.'' Those are his words. He takes guns out of here 
``all the time''--this drug addict. He can just walk out with them.
  The company did not track its inventory in any meaningful way. And 
according to the complaint, from February 1998 to February 1999, 
approximately 16 shipments of handguns from Kahr Arms failed to arrive 
at their points of destination.
  Did Kahr Arms violate a State or Federal statute? Nobody has claimed 
they did. And unless they did, under this pending bill, immunity from 
suit would result. It seems to me this is something all of us ought to 
be troubled by and focus on because there is a lot of uncertainty and 
confusion, I believe, as to what this bill would provide.
  But at its heart, the issue is this: Should we say unless you can 
prove an act was illegal on the part of the defendant, you will not be 
able to recover for damages caused by that defendant's recklessness or 
gross negligence?
  Should that defendant be immune from suit even though his 
recklessness or gross negligence has caused your injuries, unless you 
can prove that that conduct was also illegal?
  The lawsuit that was filed by Danny Guzman's surviving family members 
alleges the wrongful death based on Kahr Arms alleged negligence. While 
the defendants moved to dismiss this case on April 7, 2003, the 
Massachusetts Superior Court denied the motions. This bill is aimed at 
nullifying that kind of case. I hope we can't constitutionally do it 
retroactively. I hope we cannot destroy that cause of action. But we 
should not try and we surely should not single out one industry to help 
immunize them against their own acts of recklessness or gross 
negligence.
  In a third case, a team of Orange, NJ, police officers was operating 
undercover at a gas station that had been robbed repeatedly over the 
course of several months. Detective Lemongello was among the officers 
taking part in the undercover surveillance. In the course of a 
stakeout, Detective Lemongello attempted to question a man who had 
suspiciously approached the gas station. Lemongello walked up to the 
man and asked him to remove his hand from his pockets, whereupon the 
man turned and opened fire, shooting Detective Lemongello three times--
once each in his stomach, chest, and left arm.
  Detective Lemongello was able to announce over his police radio that 
he had been shot and that the suspect had fled the scene. In response 
to the radio call, Officer Kenneth McGuire set off on foot after the 
shooter, who had fled into a nearby neighborhood. When Officer McGuire 
entered a backyard where the suspect was hiding, the suspect emptied 
his ammunition clip, shooting Officer McGuire in the abdomen and leg. 
Officer McGuire managed to return fire, killing the suspect. It turned 
out that the man who shot Officer McGuire and Detective Lemongello was 
wanted for attempted murder and had at least three felony convictions 
on his record. This man could not have legally purchased a gun, so the 
question is, Where did he get it?
  Mr. President, I have been asked by my good friend from Vermont to 
interject a statement on a different subject at this point. To 
accommodate him, I would be perfectly happy if the Senator from Idaho 
would be willing to have me yield to him for a statement, without 
losing my right to the floor.
  Mr. CRAIG. If the Senator will yield, we had hoped to conclude the 
offering of amendments. I know there are many on your side who asked 
for morning business time today, some to make fairly extensive 
statements. I would not object to this happening. I hope you can get 
another Senator here for the offering of that amendment. Then we could 
step off the bill into morning business and open up other 
opportunities.
  Mr. REID. Will the Senator from Michigan yield?
  Mr. LEVIN. Yes.
  Mr. REID. Mr. President, we have a situation we have to address. We 
know Senator Lautenberg is coming to the floor to offer an amendment, 
but that can't be done unless Senator Levin sets his amendment aside. 
If Senator Levin sets his amendment aside, he loses his rights to maybe 
have a vote. I certainly have no problem whatsoever with the Senator 
from Vermont speaking for 10 minutes since that is my understanding. 
Senator Levin would get the floor again. But I think for Senator 
Lautenberg, he should understand that he may not be able to offer his 
amendment today, as it is my understanding from my conversations with 
the Senator from Michigan, he is not going to allow his amendment to be 
set aside.

  Mr. LEVIN. I would be happy to have my amendment set aside, providing

[[Page S1869]]

that after the Lautenberg amendment is offered, the floor then be 
returned to me.
  Mr. REID. We could certainly do it that way.
  Mr. LEAHY. If the Senator will yield for a question, I saw the 
distinguished Senator from New Jersey just enter the Chamber. I ask my 
friends, the senior Senators from Michigan, Nevada, Rhode Island, and 
Idaho, if perhaps the senior Senator from Vermont could proceed for 
about 10 minutes on the subject of land mines without the Senator from 
Michigan losing his right to reclaim the floor. In the meantime, maybe 
through the work that is always done with such finesse by the senior 
Senator from Nevada, something can be worked out.
  Mr. REID. I ask unanimous consent that the Senator from Vermont be 
allowed to speak as in morning business for up to 10 minutes and, 
following that, the Senator from Michigan would reclaim his right to 
the floor. He would be recognized after that.
  The PRESIDING OFFICER (Mr. Sessions). Is there objection?
  Mr. CRAIG. Reserving the right to object, what the Senator from 
Michigan did a few moments ago--the Senator from Nevada may not have 
been present--was yield to the Senator from Virginia for the offering 
of an amendment. He did not lose his place. We returned to that. So if 
you are willing to extend that kind of courtesy to the Senator from New 
Jersey, we certainly have no objection.
  Mr. REID. What we should do is have it go back to the Senator from 
Michigan, and then we will try to do something that will get us out of 
here today.
  Mr. CRAIG. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.


                  President Bush's Policy on Landmines

  Mr. LEAHY. Mr. President, as an aside, for one who has been here for 
29 years, sometimes the press talks about the rancor in the Senate. 
This was a matter of courtesy shown by the senior Senator from Idaho, 
the senior Senator from Rhode Island, and the senior Senator from 
Michigan to the Senator from Vermont. These are the kind of things that 
make the Senate work. I appreciate it.
  Mr. President, back in the 1980s, about 15 years ago, I flew in a 
helicopter from Tegucigalpa, Honduras to the border of Honduras and 
Nicaragua. It was at the height of the Iran-contra war. On the way I 
met with the contras there at their camp. And on the way back, there 
was a clearing in the jungle. You could see a Quonset hut with a red 
cross on the top. We landed there. It was a field hospital. There was a 
dirt floor inside, with beds, and an operating room next to it.
  Inside I met a little boy, probably about 12 years old, with one leg; 
he had a homemade crutch. He had no place to live, and the doctors let 
him stay there on sort of a makeshift bed of blankets and rags in the 
corner.
  He was a nice boy. He had no idea who I was or what I was doing 
there. He was just excited to see a helicopter come in. I talked with 
him through a translator. He had lost his leg from a landmine along one 
of the trails near where his family lived. They were farmers.
  I asked him if the landmine was placed there by a Sandinista or a 
contra. He didn't have the foggiest idea. He wasn't even sure what this 
country, just a few miles away across the border, Nicaragua, was.
  What he did know was his life was changed forever, and that he would 
not be able to run again, or work in the fields, or be a farmer like 
his father. It was a tragic story.
  I came back and started work on a fund for mine victims, which 
through the courtesy of the Republican side is now known as the Leahy 
War Victims Fund, and it has had strong bipartisan support. But while 
that fund has helped many mine victims get artificial limbs and walk 
again, I soon realized that no matter how much money we spend we would 
never stem the loss of life from landmines that way.
  Since I met that boy over a decade and a half ago, I have spoken on 
this floor about the dangers of landmines to innocent civilians and 
American soldiers so many times I have lost count. Perhaps I sound like 
a broken record, but I feel so passionately about this.
  Years ago, I sponsored the first law anywhere in the world to stop 
the export of antipersonnel landmines. My distinguished friend from 
West Virginia and my distinguished friend from Michigan voted for it. 
The United States had the first law in the world stopping the export of 
antipersonnel landmines. That led to similar actions by other nations. 
In a short time, our allies took far bolder steps. Just 5 years later, 
a treaty banning antipersonnel mines was signed in Ottawa. I was there 
when it was signed. Today, over 150 nations have joined that treaty, 
including every NATO ally and every country in the Western Hemisphere, 
except two, the United States and Cuba.
  It is interesting to recall the speech of former Foreign Minister 
Lloyd Axworthy, who laid down the challenge in Ottawa. Yet today, 
almost a decade later, in this hemisphere only two countries, the 
United States and Cuba remain the outcasts.
  During the Clinton administration, I worked closely with the White 
House on this issue. I was disappointed that President Clinton did not 
join the Ottawa Treaty, even though he could have, but he pledged to 
work aggressively to find alternatives to landmines so the United 
States could join by 2006.
  Until this morning, that pledge was United States policy and the 
Pentagon publicly embraced it.
  I ask unanimous consent that a May 15, 1998, letter to me from the 
former National Security Advisor, Sandy Berger, which spells out that 
policy be printed in the Record at the end of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. The Pentagon said publicly that they would uphold the 
pledge of the President of the United States, but behind the scenes 
they worked assiduously to undermine the Clinton policy. Today, we see 
the result in an announcement that the White House and Pentagon 
carefully leaked to the press last night in an attempt to put a 
positive spin on what anyone who knows the issue can see is a step 
backward.
  We see that the Bush administration has abandoned any pretext of 
joining other civilized nations to eliminate these outmoded, 
indiscriminate weapons.
  Before I explain why the administration's policy is so deeply 
disappointing to those of us who have worked on this issue for years, I 
want to be clear of my respect for Secretary of State Powell, for 
Assistant Secretary Lincoln Bloomfield, and others in the State 
Department who administer our humanitarian demining programs. These 
programs save lives and limbs, and this administration's plan to 
increase funding for these programs by $20 million is constructive. It 
is far too little, especially for the wealthiest Nation on earth, but 
it is a positive step.
  I also want to emphasize that, except for in Korea, the United States 
no longer uses the type of landmines which pose the gravest risk to 
innocent people, the way some nations and rebel forces do. Instead, we 
are helping countries clear their minefields. Just this week, the 
Vietnam Veterans of America Foundation, led so courageously by Bobby 
Muller, signed an agreement with the Vietnamese Ministry of Defense to 
conduct a countrywide survey of unexploded mines and other bombs, many 
of which were left by our soldiers, as well as by Vietnamese soldiers, 
and which continue to maim and kill innocent people. Once that survey 
is completed, we and other nations can help remove these explosives and 
end the deadly legacy of that war.

  So the issue for the United States is not whether the U.S. is using 
mines that are causing civilian casualties. In fact, we have not used 
landmines since 1991 in the first Gulf war, and there is no evidence 
those mines had any effect whatsoever. In fact there is no evidence the 
Iraqis even knew they were there. The real issue, which the Pentagon 
and White House are either incapable of grasping or, more likely, want 
to ignore, is that as long as the United States, with by far the most 
powerful Armed Forces ever known in history, continues to insist on its 
right to use these indiscriminate weapons, other nations with armies 
far weaker than ours are going to insist on their right to use them 
also.

[[Page S1870]]

  The victims are going to be innocent civilians and U.S. soldiers who, 
even today, are losing their lives and limbs from mines in Iraq.
  Mr. President, over 2 years ago, the Bush administration announced it 
would review U.S. landmine policy. I welcomed that review. I told 
President Bush, the Secretary of State, and officials in the Pentagon 
that I wanted to find an approach with broad, bipartisan support, 
including from the Pentagon. Also, as much as I wanted us to be one of 
the overwhelming majority of nations that have joined the treaty, I 
knew the Bush administration was not likely to do that. I felt that 
working together we could move toward that goal by strengthening our 
own policy.
  Today, over 2 years later, and after refusing to consult with me or 
other Members of Congress on either side, the White House announced its 
plans. We now see that we would have been far better off if the 
administration had not conducted its review in the first place. Except 
for a few positive aspects, the policy is a disappointing step 
backward.
  What we see is another squandered opportunity for U.S. leadership on 
a crucial arms control and humanitarian issue. We see the United States 
saying we will continue to use landmines indefinitely.
  Once again, we had the opportunity to join the civilized world in 
solving a global crisis, as all our NATO allies have. And once again, 
we have chosen unilateral arrogance over leadership and cooperation.
  The administration's press office has done an impressive job 
portraying this policy as an important advance, but it is not.
  They say they will eliminate persistent landmines by 2010. That is 
constructive. But in fact, except for Korea, the United States has not 
used these types of mines for decades.
  Six years ago, the Clinton administration, including the Pentagon, 
pledged to ``search aggressively'' for alternatives to self-destructing 
anti-vehicle mine systems by 2006. The Bush administration abandons 
this pledge and will allow the use of these mines anywhere, 
indefinitely.
  In 1998, the Clinton administration pledged that it would sign the 
Ottawa treaty banning anti-personnel mines by 2006, if suitable 
alternatives to these mines were fielded by then. The Bush 
administration abandons this pledge.
  The Bush administration says it will seek a worldwide ban on the sale 
or export of persistent mines, but that we will keep our self-destruct 
mines indefinitely. Let's be honest. We tried that back in 1994, and 
the reason it failed was, not surprisingly, that other countries said 
``if you, the world's strongest military power are unwilling to give up 
your landmines, why should we give up ours?''
  Mr. President, I had hoped that the President would seize this 
opportunity to show real leadership. We can solve this problem if we 
set the example. It could be done so easily. Instead, the President has 
taken us backwards.
  I will speak more about this in future weeks. I do appreciate the 
consideration of my colleagues in giving me this time.
  I yield the floor.

                               Exhibit 1


                                              The White House,

                                         Washington, May 15, 1998.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: The President has asked me to confirm 
     our understanding regarding the one-year statutory moratorium 
     on the use of anti-personnel landmines (APLs) that is due to 
     take effect next February. We very much appreciate your 
     working so closely with us to define an approach that meets 
     not only our solemn obligation to provide for the protection 
     and safety of our Armed Forces in battle, but also our mutual 
     goal of advancing our efforts to rid the world of APLs.
       We are very gratified that you will not oppose adding 
     flexibility to the 1996 moratorium legislation in the form of 
     a Presidential waiver authority that would be attached to the 
     pending FY 1999 defense authorization bill when it is 
     considered by the Senate next week.
       In this context, let me reiterate the following commitments 
     on the part of the Administration:
       The United States will destroy by 1999 all of its non-self-
     destructing APLs, except those needed for Korea.
       The United States will end the use of all APLs outside 
     Korea by 2003, including those that self-destruct.
       The United States will aggressively pursue the objective of 
     having APL alternatives ready for Korea by 2006, including 
     those that self-destruct.
       The United States will search aggressively for alternatives 
     to our mixed anti-tank systems by (a) actively exploring the 
     use of APL alternatives in place of the self-destructing 
     anti-personnel submunitions currently used in our mixed 
     systems and (b) exploring the development of other 
     technologies and/or operational concepts that result in 
     alternatives that would enable us to eliminate our mixed 
     systems entirely.
       Finally, the United States will sign the Ottawa Convention 
     by 2006 if we succeed in identifying and fielding suitable 
     alternatives to our anti-personnel landmines and mixed anti-
     tank systems by then.
       Again, I thank you for your leadership on this issue.
           Sincerely,

                                             Samuel R. Berger,

                                        Assistant to the President
                                    for National Security Affairs.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I know under the order, Senator Levin is to 
have the floor. I ask unanimous consent that I be allowed to propound a 
unanimous consent request and that he have the floor following that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, the Senator from Michigan says he will 
complete his statement in 10 minutes. The Senator from New Jersey has 
two amendments he wishes to offer, 10 minutes on each amendment, for a 
total of 20 minutes. I will propound a unanimous consent request in 
just a second, but I want everyone to know what is going on. That will 
take a half hour. Following that, I ask that there be a time to go to 
morning business. There will be no more amendments offered today, and 
we would go to morning business and Senator Levin's amendment would be 
the amendment that would recur following the two amendments of the 
Senator from New Jersey.
  I will propound that in the form of a unanimous consent request 
unless someone at this stage believes there is anything inappropriate 
with it. I know Senator Byrd has been waiting. He asked yesterday to 
come and speak, but we didn't know it would take as long. I tell the 
Senator from West Virginia, it will be approximately a half hour before 
we get to morning business.
  Mr. BYRD. Mr. President, will the distinguished Democratic whip 
yield?
  Mr. REID. Yes.
  Mr. BYRD. About what time would it be possible for me to get the 
floor?
  Mr. REID. Mr. President, I tell the distinguished senior Senator from 
West Virginia, it would be a little bit after 1 o'clock, thereabouts. 
Then we have Senator Conrad who wishes to speak for 45 minutes and 
Senator Harkin who wishes to speak for a half hour. I am not going to 
set the order, but I ask that Senator Byrd be recognized initially in 
morning business.
  Mr. BYRD. I thank the Chair.
  Mr. CRAIG. Mr. President, will the Senator yield?
  Mr. REID. I will be happy to yield.
  Mr. CRAIG. Mr. President, I do not believe I have any disagreement 
with that concept or the UC the Senator will propound, just as long as 
we have adequately served all Senators who want to offer amendments to 
S. 1805. It appears the numbers are here for that purpose.
  Mr. REID. I say to my friend from Rhode Island, Senator Reed, who is 
in the Chamber, we are still in the process of trying to work out 
definite times on Monday so that he, Senator Feinstein, and those who 
are speaking in opposition--which will take a total of 3 to 4 hours--
will have time on Monday.
  Mr. President, I ask unanimous consent that Senator Levin be 
recognized for up to 10 minutes to complete debate on his amendment; 
following that, that his amendment be set aside temporarily and that 
Senator Lautenberg be recognized to offer two amendments and that 
Senator Lautenberg be able to speak for a total of 20 minutes on his 
two amendments; following that, the amendment of the Senator from 
Michigan would recur; and that following that, we go to a period for 
the transaction of morning business, and that Senator Byrd be 
recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank the Chair and thank the Senator 
from Nevada.

[[Page S1871]]

  I want to go back to the case of the two police officers who were 
shot with a gun that was sold under extremely suspicious circumstances 
by a gun dealer who was then sued by these two police officers.
  The lawsuit alleged on the part of the defendants some very serious 
negligence, gross negligence, recklessness in terms of that sale. The 
person who purchased the gun bought 11 other guns at the same time, 
selected by somebody else. The person who filled out the purchase 
paperwork was not the person who actually bought the guns. They were 
picked out by a second person.
  Like the New Jersey man who shot these two officers, the man who 
selected the guns was a convicted felon. The guns were paid for 
entirely in cash, several thousand dollars. The gun purchase was about 
the second in 3 weeks from the same two buyers from that dealer.
  These were significant allegations that were brought by two police 
officers who were severely injured by that gun, claiming that the 
action on the part of the gun dealer was negligent and reckless 
behavior. There is a lot of evidence suggesting that it was.
  A West Virginia judge refused to dismiss this case that these two 
police officers brought saying there was sufficient evidence to go to a 
jury; that is, evidence of recklessness or negligence on the part of 
the defendants. It was their recklessness, their negligence which was 
the proximate cause, allegedly, of the damage.
  We have heard a lot about whether people should be held accountable 
for somebody else's illegal action. That is not what this amendment is 
about. That is not what this bill is about. What this bill is about is 
to immunize a certain industry from their own reckless and negligent 
behavior, not somebody else's, but from their own reckless and 
negligent behavior, unless the people who are injured can also show 
that they acted illegally.
  This is special treatment for one particular industry.
  We owe a great debt to these police officers who put their lives on 
the line, and it seems to me it is an insult for the response to their 
bravery to be: You cannot bring an action against a gun dealer who 
acted negligently or recklessly and whose negligence or recklessness 
was a proximate cause of your injury. Sorry, you have to prove that gun 
dealer acted illegally; that he acted reckless is not enough; that you 
were injured as a proximate result of that recklessness is not enough. 
We are going to immunize that particular gun dealer and anyone like him 
from their own reckless, negligent behavior unless you can carry an 
additional burden that they also acted illegally.
  That is the response to officers who are gunned down and where their 
injuries were a proximate result of the recklessness and negligence of 
that gunshop.
  Those are the allegations. Should they be allowed to prove them? The 
intention of the legislation in front of us is that they not be allowed 
to prove them unless they can also allege there was illegal action on 
the part of that gunshop. I think we can see why so many associations 
of police officers are very much opposed to this legislation and its 
purpose.
  A number of law enforcement officers wrote Senators a letter opposing 
what this bill intends. In it they said 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, this 
bill would deprive them of their basic rights as American citizens to 
prove their case in a court of law.
  Manufacturers and dealers of guns have a right to make and sell guns, 
but that right also is not unlimited because it comes with some 
responsibility. Like every other business in this country, people who 
are in the gun business have a responsibility to conduct that business 
with reasonable care. If a gun manufacturer or gun dealer fails to do 
so, and their negligence or recklessness leads to someone being killed 
or injured, they should not be immune from suit.
  According to a recent report, 57 percent of crime guns in the United 
States could be traced back to 1 percent of the gun dealers in this 
country. We should not let that 1 percent off the hook. We should not 
single out one industry for these special protections.
  Earlier this Congress, the Senate Judiciary Committee, considered an 
amendment to exempt class action lawsuits filed against the gun 
industry from the diversity and removal provisions of the class action 
bill. The committee rejected that amendment and in its report on the 
bill the majority put it this way:

       Simply put, there should not be one set of rules for one 
     category of defendants and another for another group of 
     defendants.

  Well, if that holds true in the case of a class action bill, it 
should be true also relative to this legislation. This bill not only 
singles out one industry for special favored treatment, but in the 
process it undermines long-standing principles of tort law.
  Traditionally, tort law has been left to the States to define, and if 
changes have been necessary Congress has usually deferred to State 
legislatures to make those changes. This bill seeks to impose a Federal 
tort regime that would virtually eliminate the ability of State courts 
to hear and decide cases involving even grossly negligent or reckless 
conduct by gun dealers and manufacturers, even where existing State law 
would permit such cases.
  A Georgetown University Center law professor by the name of Heidi 
Feldman put it this way about this bill:

       . . . one of the most radical statutory revisions of the 
     common law of torts that any legislature--Federal or State--
     has ever considered, let alone passed.

  I have looked at a lot of Federal laws that affect the civil 
liability of various industries, and I, too, have seen nothing that 
comes close to what this bill would do.
  Whatever we are going to do, it seems to me we ought to do it 
knowingly. We ought to understand what it is that we are being asked to 
do. What the bill says is, unless someone who is injured by somebody 
else's reckless or negligent conduct, unless that plaintiff can also 
show that the conduct was illegal, they will not be able to recover 
damages for their injuries. That is a radical departure from fairness, 
not just from the common law. That is a radical departure from 
protecting victims and trying to preserve their rights.
  We should not take that step without at least understanding what we 
are doing. The purpose of my amendment is to make sure that we at least 
have an opportunity to vote on a central proposition: Whether or not 
when somebody is injured as a proximate result of somebody else's gross 
negligence or recklessness that that person who is injured should have 
an opportunity to recover damages, even if they are unable to show that 
the defendant's reckless or negligent conduct was also illegal.
  That is the central issue this bill addresses. It is the central 
issue my amendment addresses. I think it is important that this Senate 
not only understand what the central issue is but have an opportunity 
to vote on that specific issue, and that is what my amendment is all 
about.
  My amendment will give us the opportunity to vote on whether we 
intend to give immunity to persons who cause injuries to others through 
their own--and I emphasize ``their own''--reckless and grossly 
negligent behavior, where that behavior is a proximate cause of 
somebody else's injuries.
  I hope the Senate will adopt my amendment. I hope we will modify the 
bill in front of us so that we can protect victims, and that is really 
what the amendment and the bill is all about.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.


                           Amendment No. 2632

  Mr. LAUTENBERG. Mr. President, I send an amendment to the desk, and I 
ask for its immediate consideration.
  The PRESIDING OFFICER. Under the previous order, the pending 
amendment is set aside and the clerk will report the Lautenberg 
amendment.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg] proposes an 
     amendment numbered 2632.

  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S1872]]

  The amendment is as follows:

(Purpose: To require that certain notifications occur whenever a query 
to the National Instant Criminal Background Check System reveals that a 
 person listed in the Violent Gang and Terrorist Organization File is 
       attempting to purchase a firearm, and for other purposes)

       At the appropriate place, insert the following:

     SEC. --. AMENDMENTS TO BRADY HANDGUN VIOLENCE PREVENTION ACT.

       (a) Short Title.--This section may be cited as the 
     ``Terrorist Apprehension Act''.
       (b) Amendments.--Section 103 of the Brady Handgun Violence 
     Prevention Act (18 U.S.C. 922 note) is amended--
       (1) in subsection (i), by striking ``No department'' and 
     inserting ``Except as provided in subsection (j), no 
     department'';
       (2) by redesignating subsections (j) and (k) as subsections 
     (k) and (l), respectively; and
       (3) by inserting after subsection (i) the following:
       ``(j) Terrorist Apprehension.--
       ``(1) Initial notification.--If the system established 
     under this section determines that a prospective transferee 
     is listed in the Violent Gang and Terrorist Organization file 
     or a similar terrorist watch list, regardless of the 
     eligibility of such person to purchase a firearm, the system 
     shall provide this information to the employee at the 
     Criminal Justice Information Services Division of the Federal 
     Bureau of Investigation that is accessing the national 
     instant criminal background check system (referred to in this 
     subsection as the `NICS operator').
       ``(2) Notification of law enforcement.--Upon receiving 
     information under paragraph (1), the NICS operator shall 
     immediately provide the Federal Bureau of Investigation, the 
     Department of Homeland Security, the terrorist task force, 
     and State and local law enforcement in the jurisdiction in 
     which the firearm purchase is being attempted with--
       ``(A) the name, date of birth, and any other identifying 
     information reported by the prospective transferee;
       ``(B) the time and place of the attempted firearm purchase; 
     and
       ``(C) the type of weapon, if known, that the prospective 
     transferee attempted to purchase.
       ``(3) Notification of originating agency.--In addition to 
     the notifications under paragraph (2), the NICS operator 
     shall immediately provide the agency that placed the name of 
     the suspected terrorist on the terrorist watch list with the 
     information described in subparagraphs (A) through (C) of 
     paragraph (2).''.

  Mr. LAUTENBERG. Mr. President, this amendment would override what I 
see as a misguided Department of Justice policy that adds to the 
threats to our homeland security and leaves our country more vulnerable 
to terrorist attacks. This amendment is identical to bipartisan 
legislation I previously introduced. It was called the Terrorist 
Apprehension Act, and it was cosponsored by Senator DeWine with me.
  This amendment will direct the administration to do all it can to 
apprehend potential terrorists within our borders.
  We found out if someone on the terrorist watch list, someone who is a 
potential threat to communities across the country, purchases a weapon, 
and that information is logged into the gun background check system, 
the Department of Justice has an order that prevents that background 
check information not to be put on an alert. They do not even share the 
critical information with law enforcement concerning the whereabouts of 
the terrorists.
  It sounds kind of backwards to me. I find it very disturbing that we 
could have a nationwide lookout for known terrorists within our 
borders, and if he obtained a weapon the Justice Department's policy is 
to conceal that information from the FBI or other interested law 
enforcement personnel.
  I know there are differences on gun policy that we may have within 
the Government, but I cannot believe there is anyone in this body who 
would not want to see us do whatever we can to alert the FBI or the 
appropriate parties to the fact that there is a terrorist lurking 
around trying to purchase a gun or who has purchased a gun.
  I know many pro-gun groups have said terrorists are not likely to or 
would not buy a firearm on the legal market anyway, but the evidence we 
have discovered points otherwise.
  An investigation by my staff revealed that a small sample of gun 
purchases reviewed by the Department of Justice showed that over a few 
months 13 people on the terrorist watch list successfully purchased a 
firearm at gunshops. The access that terrorists in our country have to 
guns is chilling, such as the .50 caliber assault weapon which could 
take down a helicopter, according to the Congressional Research 
Service. We learned also that that weapon can penetrate 6 inches of 
steel plating and has the range of a mile; that a target can be hit 
from a mile away, and it can also carry an incendiary bullet that would 
immediately cause the surroundings to burst into flames.
  I know the Justice Department's position is at odds with the 
Department of Homeland Security, but again I cannot believe that either 
one of those Departments are not anxious to get as much information as 
they can about terrorist activity relating to guns.
  During his confirmation earlier this year, Tom Ridge acknowledged to 
me the dangers of terrorist access to guns, and under oath at another 
hearing the General Counsel of the Department of Homeland Security told 
me it was his belief that someone on the terrorist watch list should 
not be at all permitted to purchase guns.
  Unlike the Department of Homeland Security, the Department of Justice 
apparently sees things very differently. DOJ is not willing to give 
critical information to law enforcement sectors when someone on the 
terrorist watch list purchases a firearm. In fact, the Department of 
Justice requires the FBI to prove--believe this--that the terrorist 
should not be able to legally buy a gun and DOJ gives the FBI 3 days to 
come up with a reason. But if no reason is given in 3 days, then the 
gun is handed over to the terrorist.

  It is quite an anomaly, that the Department of Justice requires the 
FBI to prove a terrorist should not be able to legally buy a gun. That 
doesn't make sense to me.
  To make matters worse, the policy of the Department of Justice is not 
to tell law enforcement the details of the transaction, including where 
it took place and when it took place. So we could have a nationwide 
lookout for a terrorist and the Department of Justice, knowing that the 
terrorist just obtained a gun, will not tell the appropriate law 
enforcement people where the terrorist is.
  This is a misguided policy of the Department of Justice. It has to 
change. My amendment would make that change. My amendment is simple and 
to the point. It says if a terrorist buys a gun, law enforcement must 
be notified promptly that this transaction has taken place. The FBI, 
local police, and the regional terrorist task force must be told the 
time and place of the purchase, without excuses. Every minute we allow 
the current Department of Justice policy to stand, we put our 
constituents at unnecessary risk.
  I ask my colleagues to support this commonsense, bipartisan 
amendment. It is my hope that amendment will carry. We are all 
interested in reducing the threat of terrorism as much as we possibly 
can.
  Mr. President, of course, we have to lay the first amendment aside 
before we can proceed to the second.
  The PRESIDING OFFICER. Under the previous order, the first Lautenberg 
amendment is set aside.
  Mr. LAUTENBERG. Mr. President, I neglected to use the graph I have to 
demonstrate what happens. The subject of a terrorist watch list 
purchases weapons, the NICS gun background check system is in place, it 
is entered in the NCIC crime database, and here there is a silent 
alarm. It doesn't really tell anything to the FBI terrorist task force. 
That is almost totally incomprehensible.


                           Amendment No. 2633

  Mr. President, pursuant to the request I made that the other 
amendment be laid aside, I now send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg] proposes an 
     amendment numbered 2633.

  Mr. LAUTENBERG. I ask unanimous consent the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To exempt lawsuits involving injuries to children from the 
            definition of qualified civil liability action)

       On page 9, between lines 2 and 3 insert the following:
       ``(vi) any action involving injury to children.''.

  Mr. LAUTENBERG. Mr. President, this amendment is designed to protect

[[Page S1873]]

the rights of our most vulnerable and most precious resource, our 
children. If this bill is enacted without this amendment to the pending 
bill, we will be passing legislation that protects the interests of the 
National Rifle Association and negligent gun dealers and manufacturers, 
errant manufacturers, at the expense of our kids.
  It is really coldhearted, as we see if we examine this legislation. 
How distant do we want to make ourselves from a condition that is so 
tragic that even just hearing about it, if it is in your own household, 
sends chills up and down the spine? We have already rejected in this 
debate the rights of sniper victims and police officers. But are we now 
willing to go ahead and victimize our children? Children who are 
injured by a gun, the families of children killed by guns, do we want 
to shut down their rights? I am a proud grandfather of 10 wonderful 
grandchildren. It pains me to think that the Senate in which I serve is 
willing to expose them to greater danger. That process is pretty easy, 
if there is no punishment severe enough to curb either negligent or 
reckless behavior on the part of manufacturers, dealers, or 
distributors.
  I think the biggest rogue of all that we all talk about is the shop 
that permitted Lee Malvo to get the gun he had, the Bull's Eye shop. 
They had guns all over the place on display and couldn't detect that 
237 or so guns were unaccounted for. That suggests even greater danger. 
What I really hope we can do is not take away a tool that helped make 
this society safer for our kids.
  How can we leave out the children, the children's families, when it 
comes to seeking redress if this kind of tragedy strikes that family? 
Every day we hear more about another child falling victim to gun 
violence. It is a national epidemic. In 2002 alone, the Centers for 
Disease Control and Prevention estimates there were 13,000 kids injured 
by a firearm. From 1996 to 2001, more than 1,500 children were killed 
in firearm accidents. The CDC also found the overall firearm-related 
death rate among United States children below the age of 15 was nearly 
12 times higher than it is in 25 other industrialized countries 
combined. This horrible trend in our Nation must be stopped. We should 
be working to enhance the safety of our children and not reduce it.
  Tennille Jefferson, the mother of a child victim, understands only 
too well what dangers can result from negligent gun dealers. On April 
19, 1999, her son Nathan was shot and killed by a young boy who found 
the gun on the street, a gun belonging to a gun trafficker named Perry 
Bruce, who bought the gun from a disreputable gun dealer. The gun 
dealer sold Perry Bruce guns, despite many obvious signs that he was 
trafficking in guns. Bruce had shown a welfare card as his only form of 
identification. Yet somehow he was never questioned about how he 
managed to scrape up the thousands of dollars necessary to purchase 10 
guns.
  The gun trafficker, Mr. Bruce, admitted the gun dealer ``had to know 
what I was doing,'' and that he was high on marijuana each time he 
bought guns from this company. But the dealer acted recklessly. He had 
the information. Yet he sold the guns to Bruce. The result was the 
death of Nathan Jefferson. If this bill passes, families like the 
Jeffersons will not be able to hold the negligent, careless, 
irresponsible dealers and manufacturers who sell them to be liable for 
the murder of innocent children. This bill chooses special interests 
over the innocents. It is a sad commentary on this Senate. To be blunt, 
this immunity bill is a form of child abuse. We still have a chance to 
reverse the course and I hope we are going to do it. Meanwhile, I urge 
my colleagues to support this amendment and preserve the rights of 
America's children.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from West Virginia.

                          ____________________