[Congressional Record Volume 151, Number 106 (Friday, July 29, 2005)]
[Senate]
[Pages S9374-S9398]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
The PRESIDING OFFICER. The Senate will now resume consideration of S.
397, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 397) to prohibit civil liability actions from
being brought or continued against manufacturers,
distributors, dealers, or importers of firearms or ammunition
for damages, injunctive or other relief resulting from the
misuse of their products by others.
Pending:
Frist (for Craig) modified amendment No. 1605, to make
clear that the bill does not apply to actions commenced by
the Attorney General to enforce the Gun Control Act.
Frist modified amendment No. 1606 (to amendment No. 1605),
to make clear that the bill does not apply to actions
commenced by the Attorney General to enforce the Gun Control
Act and National Firearms Act.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, we have now returned to S. 397. Under a
unanimous consent agreement, there are four amendments to be debated,
and three of the four will have relevant first degrees. My colleague
from Kansas has asked to speak very briefly before we move to the first
amendment.
I yield to Senator Roberts.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. ROBERTS. Mr. President, I thank the distinguished Senator for
yielding.
There is not another thing, basically, on any of these amendments
that has not already been said or that will change anybody's vote. I
don't intend
[[Page S9375]]
to hold the Senate up, but I want to take a moment to comment on where
we are in the legislative schedule and to make a personal request of my
colleagues. I don't question the right of any Senator to be heard on
the Senate floor. But I must say I do not understand the need to
continue debating and discussing all of these amendments on the Friday
afternoon before the start of a long month's recess. I ask, could we
please cut down on the rhetoric so that we might be able to get along
with the people's business and cast our votes. I know the manager wants
that. I would probably determine that the minority would like that as
well.
I make this request not only as a Senator from Kansas but as the
father of a young lady that I will be walking down the aisle tomorrow.
Very early this week I informed our leaders in the Senate that I had
every intention of being at her rehearsal, and that rehearsal and
dinner starts at 5 o'clock. I will be there. So if we must continue on
making these statements this afternoon and offering these amendments, I
ask that the Record reflect that any votes I miss will be the result of
me performing my duties as a dad and being with my daughter on the most
important evening and day of her life.
Thus, Mr. President, I ask unanimous consent that the Record reflect
that should I miss votes in the afternoon, it would have been my
intention to vote as follows on the Transportation bill, amendments to
the gun liability bill, and the gun liability bill itself:
``Yea'' on the Transportation bill; ``nay'' on the Reed amendment No.
1642; ``yea'' on the Frist-Craig first-degree amendment to the Kennedy
amendment No. 1615. Should the first-degree amendment not be accepted,
I would vote ``nay'' on the Kennedy amendment. I would vote ``yea'' on
the Frist-Craig first-degree amendment to the Corzine amendment No.
1619. Should the first-degree amendment not be accepted, it would have
been my intention to vote ``nay'' on the Corzine amendment. It would be
my intention to vote ``yea'' on the Frist-Craig first-degree amendment
to the Lautenberg amendment No. 1620. Should the first-degree amendment
not be accepted, it would be my intention to vote ``nay'' on the
Lautenberg amendment. Finally, it would be my intention to vote ``yea''
on final passage of the gun liability bill.
I respect and love you all. I admire you all. But while charm and
looks and levity may woo us in the start, in the end it is brevity that
will win my colleagues' hearts.
I yield the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Idaho.
Mr. CRAIG. An interesting speech about not making speeches. I yield
the floor for the offering of an amendment.
The PRESIDING OFFICER. The Senator from New Jersey.
Amendment No. 1620
Mr. LAUTENBERG. Mr. President, I wonder if I might dare to offer my
comments after that earlier admonition. But I will do it because we are
here for reasons that are obvious to everybody. We are here because our
friends on the other side wanted to stop us from offering amendments
altogether and are trying to block any suggestion that might be added
to make this bill more reasonable or more acceptable.
I call up my amendment and ask unanimous consent that Senator Dodd be
added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Jersey [Mr. Lautenberg], for himself
and Mr. Dodd, proposes an amendment numbered 1620.
Mr. LAUTENBERG. Mr. President, I ask unanimous consent that further
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 10, strike line 3 and all that follows through page
11, line 2, and insert the following:
(iv) an action for breach of contract or warranty in
connection with the purchase of the product;
(v) an action for death, physical injuries or property
damage resulting directly from a defect in design or
manufacture of the product, when used as intended or in a
reasonably foreseeable manner, except that where the
discharge of the product was caused by a volitional act that
constituted a criminal offense then such act shall be
considered the sole proximate cause of any resulting death,
personal injuries or property damage; or
(vi) any case against a manufacturer or seller involving an
injury to or the death of a person under 17 years of age.
(B) Negligent entrustment.--As used in subparagraph
(A)(ii), the term ``negligent entrustment'' means the
supplying of a qualified product by a seller for use by
another person when the seller knows, or reasonably should
know, the person to whom the product is supplied is likely
to, and does, use the product in a manner involving
unreasonable risk of physical injury to the person or others.
(C) Rule of construction.--The exceptions enumerated under
clauses (i) through (vi)
Mr. LAUTENBERG. Mr. President, I am offering this amendment that
poses a question to the Senate. The question is fairly simple: What is
more important in our life, in our society, to be on watch for: Is it
to protect our Nation's children and to let those know who would assist
in harming those children that they are going to be taken to court and
be sued and punished, if they can be punished, or for criminal action
as well? This refers only to the civil side of things. But what is more
important? Is it most important for us to support the NRA, to make sure
they are satisfied, to make sure that their dictates to this body--and
it is obvious that it is all over the place. Ladies and gentlemen who
can hear us in this debate, understand that the other side is willing
to block your ability, your family's ability to sue someone who has
been neglectful, careless, reckless with the way a gun is handled and
to protect them.
Why? Frankly, I cannot figure it out. But apparently our friends on
the other side have it all figured out. They just say no. We went
through that exercise in our society, and it didn't work. It is not
going to work here. Is it to protect our children? Special interests
versus the children in America.
This bill--everyone knows--wants to protect the gun industry even, as
I said, when they are grossly negligent, reckless, careless. What my
amendment says is that there should not be a blanket grant of immunity
in cases in which a child is the victim. We identify a child as those
children under 17 years of age. How dare we look a mother in the eye
and tell her that she cannot hold the people who caused the death or
injury to her child accountable? We cannot do it. One has to look
deeply into whether there is a constitutional question associated with
this. The fifth amendment suggests that you have the right to seek
damages--this is not precise language--for injuries.
What this bill says now is that the parents of children killed by
gunfire, when someone else is at fault, even if they are careless,
reckless, or negligent, cannot seek redress. It has been said before by
colleagues that there are numerous industries that would like the same
protection so they can go ahead perhaps and not be as careful in making
sure their product meets safety standards. But, no, they didn't have
the muscle to break their way into this place and ``at gunpoint''--if I
may use the expression--jam something through this Senate. And they
describe these shamelessly as junk lawsuits--that is hard to
understand. The bill says, too bad, sorry about your kid, but we cannot
let you harm these big campaign donors of ours. No, no, no. It is kind
of sacrosanct. But it is prohibited for every other industry in this
world of ours.
If they make a faulty product and if they are negligent in its
handling, they can be taken to court and sued. I will provide an
example. A criminal goes into a gunshop and asks to look at assault
weapons. The dealer lays out deadly weapons on the counter and the
dealer says: Just a minute. I have to go in the back. Here are these
weapons on the counter. When the dealer returns from the back room,
where he said he was going to check something in inventory, the
criminal has taken the weapon and left the store.
Can you imagine that outrageous behavior? The lethal weapons were on
the counter. The dealer could turn his back for a moment and have
someone with criminal intent steal a gun and go out. The dealer cannot
be punished for that
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outrageous behavior. The next day, that criminal could use that weapon
in a drive-by shooting and kill a 6-year-old boy.
If this bill passes in its current form, the parents of that child
cannot go to court to sue against that negligent gun dealer. When the
parents ask why they can't sue this dealer whose negligence caused
their son's death or permanent disability, we can tell them to thank
their Senator; get the phone number and office address of their
Senator, and they can send their gratitude to that Senator--or their
anger and their rage--which they have a right to do.
Mr. President, nearly 3,000 children die from gunshot wounds every
year in our country. The Senate ought to try to reduce that statistic
and not stand by and permit it to grow.
According to the CDC, the latest statistics show that in 2002, 2,867
children and teenagers died from gunshot incidents in the United
States. The CDC also found that firearm-related deaths among children
under the age of 15 were 12 times higher here than in 25 other
industrialized countries combined. Let me repeat that. Firearm-related
deaths among children under 15 in our country were 12 times higher than
in 25 other industrialized countries combined. We are not talking about
backwoods or primitive countries; we are talking about industrialized
countries. They are much more conscious about protecting their
population from random gunshots than we are. These are shameful
statistics.
So why does it matter whether negligent gun dealers are held
accountable? Because when we hold people accountable for their actions,
we prevent wrongdoing that will hurt more people in the future. It
sends a clear message--hey, if you are not careful with your inventory
of guns, if you are not careful of whom you sell that gun to, if you
are not careful with what kind of a retailer you distribute your guns
to, you are going to pay a price, a stiff price. Maybe it will put you
out of business. Maybe you deserve to go out of business. That is what
I say. Why should we lock the courthouse doors to our children and the
families of children killed or injured by guns?
Mr. President, earlier I used a hypothetical example, but there are
thousands of real-life examples of children suffering because of gun
industry negligence. There is the story of Tennille Jefferson, the
mother of a young son who became another statistic of gun violence. On
April 19, 1999, her son, Nafis, was shot and killed by a young man who
found a gun on the street belonging to a gun trafficker named Perry
Bruce.
Perry Bruce bought this deadly weapon from a gun dealer who had
repeatedly sold him guns, despite many obvious signs that he was a gun
trafficker. Mr. Bruce had shown a welfare card as his identification;
yet, somehow nobody at this store bothered to question how he had
thousands of dollars to purchase 10 guns at a time.
Mr. Bruce has stated that the gun dealer ``had to know what I was
doing'' and that he was high on marijuana each time he bought guns from
this gun dealer.
Gun dealers like this must be held accountable. This bill gives them
a free pass to do any darn thing they want, except certain classes of
negligence, or negligence per se; otherwise, it is a free pass.
The senior Senator from Virginia spoke so eloquently yesterday about
this issue. He pointed out that the vast majority of licensed gun
dealers followed the rules, but there are those rogue dealers that act
negligently and cause death and injury. Senator Warner explained it to
us that this bill before us gives these rogue gun dealers a pass. This
bill says--and I quote Warner--``Go ahead. Do whatever you want.''
Shamefully, the Senate leadership denied Senator Warner--a
distinguished, long-serving Senator, a veteran of World War II--from
having a chance to have a vote on his amendment. I didn't think I would
be here defending a Republican Senator's chance to offer an amendment,
but they made sure that that wasn't going to happen. Even though there
is purported respect, affection, and almost reverence for Senator John
Warner, they denied him a chance to stand on this floor and offer an
amendment. No, the NRA is more powerful than Senator Warner. It is
shameful. In my view, it was so disrespectful to a senior Member of
this body.
My amendment takes on pretty much the same issue as Senator Warner
but with a narrower focus. Do those whose actions lead to the death or
injury of a child get a free pass? To me, there is only one answer
there. I would take my kid over anything that the NRA needs or wants
any time.
I would fight like the devil for it. I once carried a gun for it when
I served in World War II. So the question before the Senate on my
amendment is: Whom do you want to please? Do you want to please
mothers, fathers, grandparents, brothers, and sisters? Or do you want
to protect the NRA, the gun manufacturers, the gun distributors--those
who at times don't give a darn about how they handle these things?
We are going to hear the cry about how we are going to put these
innocent people out of business. Out of business? No. We don't want to
put them out of business. If they are going to be in the business, and
they are legally licensed, they need to be careful and make sure they
obey the rules. If they don't, they will pay a price--perhaps
criminally, but surely civilly.
If we fail to adopt my amendment, gun dealers are not going to have
any accountability, no incentive to behave responsibly, no matter the
number of children who die from gun violence. Our criminal justice
system brings about punishment--yes, they take the person who committed
a violent act or a felony and make them pay. Purportedly, it registers
with others who would conduct similar acts, and that is the way we
operate.
But here, no. We are saying: Listen, you don't even have to be
careful. You can be negligent and reckless. Do what you want. Come on.
It is for the gun industry, for the NRA. Whom do we have to respect
around here? It is obvious that they think it is the NRA. It is unjust,
unfair, and immoral for us, as elected officials, to strip away the
rights of children and families who are harmed or killed by gunfire.
Are Senators willing to look in the eye of Tennile Jefferson and tell
her the door to the courthouse is barred for her?
I wish to talk about something we know will be pending, and that is
the Republican alternative ostensibly to offer the protection these
children's families might need from my amendment. To put it bluntly,
the Republican sham protection is an insult. It is an insult to
America's children. It is an insult to America's parents. It is an
insult to this Senate. It is an insult to morality. That is the way it
is going to come about.
You are going to say: No, that child's family can be protected by
those conditions already laid out for penetrating the shield of
protection that the gun industry and the NRA are demanding.
I urge my colleagues to read this so-called alternative, and I urge
the public to get this language. Understand what is taking place.
Compare my amendment to that which is going to be offered and see which
one is serious about offering the opportunity for people to seek
compensation in the event of injury.
The Republican language makes clear that children get no special
treatment under this bill. It says that children are subject to the
same limited exemptions that everyone else has under this bill,
approximately three conditions. Negligence and negligence per se are
exempt from the prohibition. In our amendment, negligent entrustment
and negligence per se are still able to be adjudicated in a court in a
civil action.
Our amendment says that the gun violence immunity bill should not
apply to children. Please, look at your own families. See what you
would do to someone who would harm your child, maybe render them
totally disabled for life. How would you react to that? Would you say,
Too bad, the courts in America will not allow us to seek redress, to
get some measure of compensation? There is never enough money to bring
back the health and well-being of a child who was killed or a child who
is permanently injured.
This will block legal actions on the behalf of children and their
families who are injured or killed. It is about as simple a decision as
we get around here. Are there times when the courthouse doors ought to
be locked, be shut to children or their families, or shouldn't they?
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I urge my colleagues once again to think about the faces of their
children. I have 10 grandchildren, and nothing in this world is more
important to me than all 10 or any 1 of those 10 grandchildren. I think
everybody else, even those who right now are supporting this hard-
hearted legislation, even those people I know love their children. They
don't want anything to happen to them. They want to protect them as
much as they can. I bet whatever devices they can use to protect them
they would use.
So come on, think about it when you cast your vote. Look in the
mirror one time and challenge your conscience to see how you ought to
be voting. Let that be your guide.
Mr. President, I believe we have more time for this amendment. What
is the status of the time for our side?
The PRESIDING OFFICER (Mr. Burr). The Senator has 1 minute remaining.
Mr. LAUTENBERG. I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator reserves the remainder of his
time.
Who yields time? The Senator from Idaho.
Amendment No. 1644
Mr. CRAIG. Mr. President, under the order, I send a relevant first-
degree amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Idaho [Mr. Craig] proposes an amendment
numbered 1644.
Mr. CRAIG. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To protect the rights of children who are victimized by crime
to secure compensation from those who participate in the arming of
criminals)
On page 11, between lines 6 and 7, insert the following:
(D) Minor child exception.--Nothing in this Act shall be
construed to limit the right of a person under 17 years of
age to recover damages authorized under Federal or State law
in a civil action that meets 1 of the requirements under
clauses (i) through (v) of subparagraph (A).
Mr. CRAIG. Mr. President, we have just heard the arguments of Senator
Lautenberg in relation to his amendment. I most assuredly in no way
question the sincerity of the Senator and the environment in which this
amendment has been offered. But if I can be as direct as I can be, if
you want to drive a truck through the middle of the bill, then the
Lautenberg amendment accomplishes just that. In the name of children,
yes, and we should be sensitive to children. Of course we are. Children
are as protected under this proposed law as anyone else because this
law says go after the criminal, don't go after the law-abiding gun
manufacturer or the law-abiding gun seller.
But if there is negligent entrustment, if that can be proven,
certainly if that seller or if that gun dealer or manufacturer is
negligent, then anyone can and should bring lawsuits. It is the same
issue we faced on previous amendments trying to carve out a special
class that gets favored treatment beyond another class, and with
children, certainly that would sound like we would want to be more
sensitive.
Most of us in the Senate are parents, but you don't have to be a
parent to grieve over a child's injury or a child's death. We have many
laws on the books at both the State and the Federal level, and some of
them are placed by this very Senate to protect our Nation's most
vulnerable--our children. We must insist on the enforcement of those
laws instead of constantly trying to carve out something special that
may not even be that enforceable. How do you protect children on the
street? You go after the criminal who is packing the gun on the street.
Every year we do that, those deaths go down in America, whether it is a
child's death or whether it is an adult's death. The Lautenberg
amendment speaks to those 17 years of age and younger.
If those laws are broken by the gun industry, then the bill we are
considering today will not shield them from the lawsuits or from the
kind of harm that is rendered. If this is the same issue--and it is--we
have debated several times to carve out something special, then we
should not do that. But what we are saying in the alternative that has
just been offered is that the bill allows lawsuits against firearms
industries by and for children to the same extent that it does for any
other victim of the illegal misuse of a firearm in relation to a gun
manufacturer and a gun dealer.
Under this, if a child is injured by some wrongdoing of the gun
industry, the lawsuits are not barred. Again, remember yesterday we
debated the question of negligence and reckless conduct, and it was
very clearly established by a substantially large vote in the Senate
that it does not take away the standards of law and the specifications
within the Federal law today as it relates to the responsible and legal
operation and performance of a gun manufacturer or a licensed Federal
firearms dealer.
How do you solve the crisis or the problem so defined by Senator
Lautenberg? You enforce the law. You go after the criminal. You go
after the drug dealer. You go to the streets of America and you sweep
them clean of those who would break the law and those who are stealing
the guns and those who are misusing the guns, instead of going after a
law-abiding legal citizen manufacturing a law-abiding and legal
product.
I believe that is the issue, and I ask my colleagues to support us in
voting for the alternative and opposing the Lautenberg amendment.
I now yield to Senator Thune for any comments he would wish to make.
What is the time remaining on our side?
The PRESIDING OFFICER. The Senator from Idaho has 15 minutes 10
seconds.
Mr. CRAIG. I yield 10 minutes to the Senator.
Mr. LAUTENBERG. Will the Senator yield for a question and
clarification of terms?
Mr. CRAIG. I yield.
Mr. LAUTENBERG. On the question of gross negligence, does gross
negligence pierce the prohibition suit?
Mr. CRAIG. If it is spelled out within the context of the Federal law
today, it would. Under this bill, it would not unless it could be
established as a violation of the current laws of our country and under
the current standards. We are not creating a new category as the Levin
amendment tried to do as it relates to gross negligence or reckless
misconduct. But what was established was negligence, negligent
entrustment is not exempt from this law.
Mr. LAUTENBERG. Didn't the Senator from Michigan offer the gross
negligence exemption and had it denied because----
Mr. CRAIG. In the broadest sense, he did.
Reclaiming my time, I yield to the Senator from South Dakota.
The PRESIDING OFFICER. The Senator from South Dakota is recognized
for 10 minutes.
Mr. THUNE. Mr. President, I thank the Senator from Idaho for his
leadership on this issue and for yielding time. I rise in strong
support of the Protection of Lawful Commerce in Arms Act and in
opposition to these amendments that will be offered this afternoon, all
of which are designed to gut the underlying legislation.
It has been noted throughout the course of this debate that
prosecutions are up, crime is down. That should be the fundamental
focus of our efforts--protecting people from crimes committed by
firearms.
I come from a State where we view these issues as a part of our
personal freedoms, part of the rights that are guaranteed under the
Constitution, the opportunity to possess and own firearms. It is a part
of the culture of our State, a belief in personal freedom, also coupled
with personal responsibility, which is why every year thousands of
young South Dakotans take the firearm safety course and learn the
responsible use of firearms and then go out and have the opportunity to
hunt and recreate and enjoy the great outdoors in our great State.
That was the opportunity I had as a young 12-year-old. I have taught
my teenage daughters responsible use of firearms. It is part of our
history. It is part of our tradition. It is part of our culture.
The bill before us today would end many of the abusive lawsuits that
are often filed, largely with the intent to bankrupt the firearms
industry. Contrary to the assertions by some, this
[[Page S9378]]
bill is not about the NRA. This bill is about law-abiding gun owners,
it is about law-abiding gun dealers, it is about law-abiding gun
manufacturers who are having that second amendment right infringed upon
by those who are trying to destroy an industry that, for a couple of
centuries now, has provided quality workmanship in accordance with
Federal and State laws.
This bill is about reestablishing some of the fairness and justice,
getting it back into our judicial system. This bill attempts to remedy
a system that allows innocent parties--in this case, gun manufacturers
and gun dealers--who have abided by the law to become victims of
predatory lawsuits.
Furthermore, we are protecting American workers who are in danger of
losing their jobs due to the enormous amount of money that must be
spent to defend against unfounded lawsuits.
I also support this legislation because it would take the first step
in ending what has been now a decades-long trend of using the courts to
effect social change. For far too long, the American judicial system
has been used as a conduit around the legislative process in an attempt
to make public policy or implement social change outside the democratic
process.
The aim of this bill is clear: to allow legitimate lawsuits against a
manufacturer when the legal principles to do so are present. The bill
allows suits against manufacturers who breach a contract or a warranty,
for negligent entrustment of a firearm, for violating a law in the
production or sale of a firearm, or for harm caused by a defect in
design or manufacture.
These are not arbitrary standards, nor are they an approved NRA wish
list. They are established legal principles that apply across the board
to all industries. People who misuse firearms should pay for their
crimes and answer to those they injure. However tragic, a death or an
injury caused by a firearm should not create a windfall at the expense
of the manufacturer if the manufacturer followed the law.
The manufacturer should not be held responsible for intentional and
unforeseen acts of unrelated third parties.
The firearms industry has spent over $200 million in lawsuits. Many
of these cases are not filed by injured parties but by city and
municipal governments and special interest groups simply looking for
the deepest pockets and not the guilty party. This bill would not allow
manufacturers in the firearms industry to act as recklessly as they
please, as some have asserted.
The firearms industry is one of America's most regulated industries.
For example, a firearm is one of the few consumer goods that requires a
waiting period or a background check. Unfortunately, some ultimately
hope to drive America's gun manufacturers into bankruptcy and
eventually out of business. The firearms industry is not only part of
our tradition of outdoor and hunting sports, it is an integral part of
our military manufacturing base. We cannot allow this industry to be
bankrupted by unfounded lawsuits and endless litigation.
S. 397, this underlying bill, is good policy. It is a bipartisan bill
with over 60 cosponsors and it mirrors legislation that already exists
in 33 States around this country. By supporting this bill we are
sending a message that Congress is committed to protecting American
jobs and providing further security against predatory lawsuits. I
encourage my colleagues to support the underlying legislation and to
resist these amendments--these are killer amendments, gutting
amendments that would undermine the entire purpose behind this
legislation--and allow this legislation to pass and be put in place so
the gun manufacturers and dealers of this country can operate in a
fair, sensible, and just environment with the goods they produce for
American firearms owners.
I yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. CRAIG. Mr. President, may I inquire how much time remains on my
side?
The PRESIDING OFFICER. The majority side has 7 minutes 45 seconds,
and 53 seconds on the minority.
Mr. CRAIG. I yield 3 minutes to the Senator from Alabama.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I thank the Senator from Idaho for his
leadership and his articulate explanation of why this is good
legislation. We are following the historic principles of civil
litigation in America. We had a group of activist, anti-gun litigators
who sometimes buddy up with a city or mayor somewhere--usually a big
city--and try to conjure up some way to make a legitimate manufacturer
of a firearm liable for intervening acts of criminals and murderers.
That has never been the principle of American law, but it is a
reality that is occurring today and it threatens an industry that
supplies our military with weapons. The Department of Defense is
concerned about it and they support this legislation. This industry
supplies weapons for our policemen as they go about their duties every
day. If we do not watch it, we will end up with no domestic
manufacturing and have to import firearms to this country.
The Lautenberg amendment is unprincipled, unjustified, and
inconsistent with the good policies of the bill. Why would we want to
allow any group of people, whether age or sex or anything else, the
nature of their job, be able to pursue a lawsuit that others would not
be able to pursue?
Mr. REED. Would the Senator yield for a question?
Mr. SESSIONS. On the Senator's time. How much time do we have?
Mr. CRAIG. I yield time to respond if the Senator wishes.
Mr. SESSIONS. All right. I would be pleased to attempt to answer the
question.
Mr. REED. The Senator from Alabama is a lawyer, a Federal attorney,
and has made the statement that an intervening criminal act essentially
absolves someone of negligence, which I think is a fair response, but
yet the statement of torts, which is recognized generally by most
lawyers as the statement of basic law in torts, says very clearly that
an intervening criminal act does not absolve someone from their own
negligence. Because of the standing of the Senator as an attorney, I
suggest that his conclusion does not comport with what most people
assume is the law of the country.
Mr. SESSIONS. All I know is I won a lawsuit on it. I defended the
Veterans' Administration when a veteran went off the grounds and was
murdered by a murderer. They tried to sue the VA. They said the VA was
negligent in letting him get off the grounds of the VA. We alleged that
one could foresee certain things and cited abundant authority to the
fact that no one should be held liable and should expect criminality,
an intervening criminal act, of that kind.
That is my view of it, but maybe somebody else would not have that
view.
The PRESIDING OFFICER. The Senator's time has expired. Does the
Senator from Idaho yield additional time?
Mr. CRAIG. I yield additional time.
Mr. SESSIONS. Just 1 minute. It is my view that this is the classic
principle of law and we have gotten away from it. We have eroded these
practical, realistic, historical principles of liability and, as such,
insurance goes through the roof, huge verdicts are being filed against
victims. The allegation has been that if somebody had their firearm
stolen by a thief, they then become liable if that thief goes and
murders somebody. What kind of principle of law is that? Maybe that is
not the idea behind this amendment, but that is the way I see it. I do
not think it is good.
This bill allows lawsuits for violation of contract, for negligence,
in not following the rules and regulations and for violating any law or
regulation that is part of the complex rules that control sellers and
manufacturers of firearms.
I yield back my time.
The PRESIDING OFFICER. The Senator's time has expired.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, this Frist-Craig amendment ensures that
nothing in the gun liability bill would limit the right of a person
under 17 to recover damages authorized by law in a civil action.
A person suing on behalf of an injured person can sue under
traditional tort law as always.
But the underlying Lautenberg amendment would allow lawsuits even
[[Page S9379]]
if no law is broken, no product is defective, and no person negligently
sold a gun.
These are the types of suits we are trying to stop.
So I urge my colleagues to vote for the Frist-Craig amendment.
The PRESIDING OFFICER. Who yields time?
Mr. CRAIG. Mr. President, I will close out our side and then the
Senator from New Jersey can close.
From 1992 to the year 2003--and this is only in the area of
accidental deaths by firearms--dramatically down, 54 percent. From 2001
to 2003, down 13 percent. That category is not quite what the Senator
talks about, but it is from 5 to 14 that makes up 1.6 percent of the
total deaths by firearms, again dramatically down. Why? These are
accidental. These are not on the streets of America. But out on the
streets of America, those are also down because we are enforcing the
law and going after the criminal.
That is what this is all about. It is not going after law-abiding
citizens. I think the Senator from Alabama put it very clearly. All new
law is being treaded upon instead of adhering to consistent, known,
well-established tort law in America.
I would hope my colleagues will support my amendment, the alternative
to the Lautenberg amendment. I oppose the Lautenberg amendment.
I yield back the remainder of my time and would hope that Senators
could conclude their remarks as we move to a vote.
The PRESIDING OFFICER. The Senator yields back the remainder of his
time.
The Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, very quickly, not once in my comments
did I talk about taking away guns from people. We are discussing this
particular issue. There are three reasons that permit penetration of
the veil of immunity: negligent entrustment, negligence per se, and
defective products. Those who describe negligence as a cause are
mistaken.
It was suggested that this would drive a truck through this bill. I
want to drive that truck full of children alive and healthy.
I yield back.
The PRESIDING OFFICER. The Senator yields back his time. All time is
expired.
Mr. CRAIG. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from New Hampshire (Mr. Sununu).
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 72, nays 26, as follows:
[Rollcall Vote No. 214 Leg.]
YEAS--72
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Bond
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reid
Roberts
Rockefeller
Salazar
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--26
Akaka
Boxer
Carper
Chafee
Clinton
Corzine
Dayton
DeWine
Dodd
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Kennedy
Kerry
Lautenberg
Leahy
Levin
Mikulski
Obama
Reed
Sarbanes
Schumer
Wyden
NOT VOTING--2
Biden
Sununu
The amendment (No. 1644) was agreed to.
Mr. CRAIG. Mr. President, I move to reconsider the vote and to table
the motion.
The motion to lay on the table was agreed to.
Vote on Amendment No. 1620
Mr. CRAIG. Mr. President, the next vote is on the Lautenberg
amendment. I ask unanimous consent that the time for voting be reduced
to 10 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. CRAIG. I also encourage my colleagues--Jack and I are trying to
move these amendments as rapidly as we can. When we have people trying
to take 20 minutes to these votes, that does not help us. We are
debating them in less time than it is taking us to vote. So please stay
around and we can move through these amendments very rapidly.
The PRESIDING OFFICER. The question is on agreeing to the Lautenberg
amendment.
Mr. CRAIG. I ask for the yeas and nays on the Lautenberg amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator is necessarily absent: the
Senator from New Hampshire (Mr. Sununu).
The PRESIDING OFFICER (Mr. Cornyn). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 35, nays 64, as follows:
The result was announced--yeas 35, nays 64, as follows:
[Rollcall Vote No. 215 Leg.]
YEAS--35
Akaka
Bayh
Biden
Bingaman
Boxer
Cantwell
Carper
Chafee
Clinton
Corzine
Dayton
DeWine
Dodd
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Murray
Nelson (FL)
Obama
Reed
Sarbanes
Schumer
Stabenow
Wyden
NAYS--64
Alexander
Allard
Allen
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kyl
Landrieu
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Pryor
Reid
Roberts
Rockefeller
Salazar
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Sununu
The amendment (No. 1620) was rejected.
Mr. CRAIG. Mr. President, I move to reconsider the vote.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1615
Mr. CRAIG. Mr. President, I understand the next amendment in order is
the Kennedy amendment.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I understand there is a time limitation.
We have 20 minutes; is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. KENNEDY. I ask the Chair to remind me when I have 5 minutes
remaining.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Massachusetts [Mr. Kennedy] proposes an
amendment numbered 1615.
Mr. KENNEDY. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To expand the definition of armor piercing ammunition and for
other purposes)
On page 13, after line 4, insert the following:
SEC. 5. ARMOR PIERCING AMMUNITION.
(a) Expansion of Definition of Armor Piercing Ammunition.--
Section 921(a)(17)(B) of title 18, United States Code, is
amended--
[[Page S9380]]
(1) in clause (i), by striking ``or'' at the end;
(2) in clause (ii), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(iii) a projectile that may be used in a handgun and that
the Attorney General determines, under section 926(d), to be
capable or penetrating body armor; or
``(iv) a projectile ror a center-fire rifle, designed or
marketed as having armor piercing capability, that the
Attorney General determines, under section 926(d), to be more
likely to penetrate body armor than standard ammunition or
the same caliber.''.
(b) Determination of the Capability of Projectiles To
Penetrate Body Armor.--Section 926 or title 18, United States
Code, is amended by adding at the end the rollowing:
``(d)(1) Not later than 1 year after the date or enactment
or this subsection, the Attorney General shall promulgate
standards for the uniform testing of projectiles against Body
Armor Exemplar.
``(2) The standards promulgated under paragraph (1) shall
take into account, among other factors, variations in
perrormance that are related to the length of the barrel or
the handgun or center-fire rifle rrom which the projectile is
fired and the amount and kind or powder used to propel the
projectile.
``(3) As used in paragraph (1), the term `Body Armor
Exemplar' means body armor that the Attorney General
determines meets minimum standards for the protection of law
enforcement officers.''.
Mr. KENNEDY. Mr. President, I express my strong appreciation to the
Senator from Rhode Island, Mr. Reed, for his leadership in opposition
to this legislation. It has been enormously impressive. Many of us who
share his views are grateful for his steadfastness, his hard work, and
his perseverance and commitment.
It is preposterous to call this bill the Protection of Lawful
Commerce in Arms Act. If we were honest, we would call it the
``Protection of Unlawful Commerce in Arms Act.'' It is a blatant
special interest bill to protect gun manufacturers and sellers, even if
they recklessly make guns available to criminals and terrorists. This
aids and abets the perpetuation of these crimes. With all the urgent
challenges facing our country, it is difficult to believe that the Bush
administration and the Republican leadership are willing to spend any
time at all on this flagrant anti-victim, anti-law-enforcement
legislation, let alone push aside the major Defense authorization bill
to make room for this debate.
President Bush called for clean passage of the bill without extending
the Federal ban on assault weapons, without closing the gun show
loophole, and without any other needed reforms in our Nation's laws.
Instead of this special interest legislation, Congress should be
considering important bills, such as Senator Feinstein's proposal to
regulate .50 caliber weapons. These weapons are particularly dangerous
because of their appeal to terrorists. These rifles can shoot down
airplanes and destroy armored vehicles. These bullets can even
penetrate several inches of steel. They have been called the ideal
tools for terrorists. Who are we kidding?
In 1995, a RAND Corporation report identified these weapons as a
serious threat to the security of U.S. Air Force bases. In 2003, a U.S.
Army intelligence training handbook called this rifle a weapon
``attractive to terrorists for use in assassinations.'' Snipers love
them. A study funded by the Department of Homeland Security identified
these rifles as an imminent threat to civilian aviation. The report
noted that these weapons have been acquired by al-Qaida and even been
used to attack our own troops in Iraq.
Barrett Firearms Manufacturing and E.D.M. Arms advertise these
assault weapons as capable of destroying multimillion-dollar aircraft
with a single hit. Every bullet sold for these weapons puts our troops
at risk. But are we working to stop that? No. Instead we are, once
again, debating a bill that threatens the safety of the American people
in a way that undermines law enforcement and our national security.
Instead we are guaranteeing that people who sell these rifles and
ammunition will never be held liable for their crimes.
With its raw special interest power, the National Rifle Association
has demonstrated that this bill is a top priority for Senate action.
They could care less that they are interrupting the important business
of protecting our men and women fighting in Iraq and Afghanistan. They
are willing to let unsavory gun dealers and gun manufacturers put
powerful killing machines in the hands of criminals and terrorists
without any regulation or liability. It is a national disgrace that
America does more to regulate the safety of toy guns than real guns.
The Republican leadership and the Bush administration will do
whatever it takes to give the industry all it wants. The NRA wants gun
dealers and manufacturers to be protected from lawsuits. The NRA
expects and demands that the Senate take away the courts as the last
resort for victims of gun violence. For years the courts have been the
only place where negligent and often conspiring gun dealers and
manufacturers can be challenged.
The Senate majority leader says this bill is of urgent importance,
taking precedence over the Defense bill because the Department of
Defense ``faces the real prospect of having to outsource sidearms for
our soldiers to foreign manufacturers.'' Guess what. The bulk of
contracts to arm our country's military and law enforcement is already
held by foreign manufacturers based in Austria, Italy, Germany, Sweden,
Jordan, and Belgium. Lawsuits have nothing to do with that.
Furthermore, we have not heard one single company filing for
bankruptcy in the absence of this legislation. The truth is that gun
industry profits are on the rise. The only two publicly held gun
companies in this country have filed recent statements with the
Securities and Exchange Commission specifically and emphatically
contradicting the claim that they are threatened by lawsuits.
Smith & Wesson filed a statement with the SEC, June 29, 2005, 1 month
ago, stating: We expect net product sales for fiscal 2005 to be
approximately $124 million, a 5-percent increase over the $117 million
reported for fiscal 2004. Firearms sales for fiscal 2005 are expected
to increase by 11 percent over the fiscal 2004 level.
In another filing, dated March 10, 2005, Smith & Wesson wrote: In the
9 months ended January 31, 2005, we incurred $4,500 in legal defense
costs.
Legal defense costs of $4,500 are supposed to be bankrupting the
company? Let's get real.
At the same time, gun manufacturer Sturm, Rugr told the SEC in a
March 1, 2005, filing: It is not probable and it is unlikely that
litigation, including punitive damage claims, will have a material
adverse effect on the financial position of the company.
We have to wonder what the real agenda is here. The level of
litigation against gun manufacturers and dealers is miniscule. In a 10-
year period, only 57 suits were filed against gun industry defendants
out of an estimated 10 million tort suits in America. We are supposed
to buy the claim that these lawsuits are unduly burdening the gun
industry. No. This legislation is another in a long line of
congressional paybacks to the NRA, to the severe detriment of the
safety of the American people. The gun lobby has systematically made it
more difficult and, in some cases, even impossible for the government
to police negligent gun dealers and manufacturers, while making it
easier for criminals to buy guns.
Under the Brady bill, a licensed seller of firearms must run a
background check through the Federal Bureau of Investigation's National
Instant Criminal Background Check System. But at the NRA's demand,
Congress drastically narrowed the definition of gun dealer. Reckless
and unlicensed dealers are now selling millions of guns to people,
including criminals and terrorists, without background checks. All of
that is legal because the U.S. Congress kowtowed to the National Rifle
Association.
We have a shameless proposal before the Senate today that shields
even the most reckless sales in the gun industry. This bill will even
protect manufacturers that promote military-style weapons for use in
battle in urban scenarios against any foe at any range. It protects
manufacturers who brag about their weapons of war and spread them to
our streets.
Look at this advertisement from Vulcan. ``Vulcan Armament, the
weapons of the special forces. From Afghanistan to Iraq, the guns of
the special forces are now on sale in America.''
All you need is a credit card. Call that company and you get that
weapon. It is being used by special forces in Iraq. Do you think this
bill has anything to do with protecting Americans from that? Absolutely
not.
[[Page S9381]]
The gun dealer claims: ``From Afghanistan to Iraq, the guns of the
special forces are now on sale . . . '' How outrageous can dealers get?
But the NRA demands that these sales continue to be unregulated. Credit
card, computer, you get your sniper rifle used by the special forces.
And are we doing anything about that? Absolutely not.
Congress continues to do their bidding as it has done for years. At
the insistence of the NRA, Congress has already tied the hands of law
enforcement by cutting Federal funding for the agency that overseas gun
dealers and manufacturers. According to the GAO, at the current level
of underfunding, the ATF would take 22 years to inspect every gun
dealer just once. What kind of enforcement is that? The GAO also tells
us that people on the terrorist watch list are routinely buying guns in
this country. Under current law, terrorists are not prohibited buyers.
At the urging of the NRA, Congress is doing nothing about it. If that
weren't enough, under this bill, gun manufacturers and sellers will be
exempt from lawsuits even if they sell weapons to terrorists.
I have a GAO report that shows that there were 45 instances where the
GAO found firearms-related background checks handled by the FBI
resulted in valid matches with terrorist watch list records. Of this
total, 35 transactions were allowed to proceed. If they get on the
list, they are supposed to notify Homeland Security. But in this case,
35 transactions were allowed to proceed because the background checks
found no prohibiting information. What does that mean? The prohibiting
information are the categories that would deny them the ability to sell
these weapons. For example, if you have had a felony conviction, you
can't sell them; illegal immigration, you can't sell them; domestic
violence, you can't sell them.
Member of a terrorist organization? You can sell them. Do you think
this bill is doing anything about that? Do you think we are doing
anything about that? No. It is disgraceful. Absolutely disgraceful.
We already know the terrorists are exploiting the weaknesses and
loopholes in the Nation's gun laws. In the caves of Afghanistan our
troops found an al-Qaida manual that instructed terrorists on how to
buy guns legally in the United States without having to undergo a
background check. Al-Qaida understands that we have created a mess that
allows, even encourages, criminals and terrorists to traffic in guns.
Why do we in this body continue to ignore it? We are not talking
about some hypothetical situation. In 2000, a member of a terrorist
group in the Middle East was convicted in Detroit on weapons charges
and conspiracy to ship weapons and ammunition to Lebanon. He had bought
many of these weapons at gun shows in Michigan. In 1999, only a lack of
cash prevented two persons from purchasing a grenade launcher at a gun
show in a plot to blow up two large propane tanks in suburban
Sacramento. But instead of addressing these real and serious problems,
the Senate is considering this outrageous immunity bill that even gives
the gun industry protection from administrative proceedings to revoke
licenses of dealers who sell to illegal buyers.
This bill will bar State attorneys general from bringing civil
actions against gun sellers, even those engaged in so-called straw
sales to middlemen who buy guns from prohibited buyers. Why should the
industry stop there? At the demand of the NRA, Congress has already
exempted the gun industry from Federal consumer safety regulation. But
the NRA wants more. It is a disgrace.
The NRA has also persuaded our Government to destroy gun purchasing
background records within 24 hours. Our Justice Department refused to
examine the gun records of any of the 19 hijackers or 1,200 suspected
terrorists rounded up after 9/11. We can know everything about law-
abiding citizens in this country, but we can't know about the
terrorists purchasing these weapons. Within days of 9/11, we knew who
the hijackers were, where they sat on the planes. We saw some of their
faces on surveillance videos. We knew what they had charged on their
credit cards. We knew where they had gone to school. We knew where they
lived, where they traveled. We knew they had tried to get pilot's
licenses. We knew they had looked for a way to transport hazardous
chemicals. But we didn't know whether our terrorist friends had
purchased firearms because we were worried about their privacy rights
and their right to bear arms.
Give me a break. Give me a break. Make no mistake, Mr. President, the
National Rifle Association clearly comes first in this Senate
Republican agenda. This is not just about the immunity bill on the
floor today. If this bill passes, it will open the floodgates for NRA's
other priorities. None of these priorities will protect our citizens or
make this country safer. Designed by the NRA, it promotes the sale of
guns by manufacturers if they are sold to criminals. The NRA is
lavishly rewarded for lobbying victories, and so are the Members of
Congress who do their bidding.
This is an unholy alliance, Mr. President. This bill gives greater
protection to the gun industry than Congress has given to any industry,
and it is a dangerous precedent. At a minimum, we owe a duty to the
police officers who are more in jeopardy because of the increasing
number of dangerous weapons and ammunition in the hands of criminals.
The Treasury Department already has regulations containing some
prohibitions on armor-piercing ammunition. My amendment would expand
the ban on that. It can easily be sold over the Internet, no questions
asked. That is a disgrace and danger to police officers throughout the
Nation.
The NRA would have us believe cop-killer bullets are a myth, they
don't exist. Try to tell that to some of the sellers on eBay. Here you
go, Mr. President. This chart represents what is on eBay. All you need
is one click of the computer, and you can buy these bullets on eBay--
armor-piercing bullets. They are $15 on eBay, armor-piercing bullets.
Now let's look at what has happened in the last year, in 2004. The
number of police officers killed was 54, and 32 of these officers were
wearing body armor. The only bullet that can pierce the armor is the
cop-killer bullet. That is what this amendment addresses, the cop-
killer bullet. It will stop the sale of the cop-killer bullet. These
are the types of armor-piercing ammunition. All you have to do is look
at these words, ``hardened steel or tungsten carbide.'' Any terrorist
knows what that means. Put those words together, and it goes right
through a police officer's armored vest. We have had 54 police officers
killed in the line of duty; 32 were wearing body armor.
This is the FBI report of May 16, 2005. I ask unanimous consent that
it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
FBI Preliminary Statistics Show 54 Law Enforcement Officers Feloniously
Killed in 2004
Washington, D.C.--Fifty-four law enforcement officers were
feloniously killed in the line of duty in 2004, according to
preliminary statistics released today by the FBI's Uniform
Crime Reporting (UCR) Program. Nearly half of the officers
killed, 26, were in the South; 9 officers were in the
Midwest; 9 were in the West; and 7 were in the Northeast. Two
were in Puerto Rico, and 1 was in the U.S. Virgin Islands.
The number of officers killed was up 2 from the 52 officers
killed in 2003.
The 54 officer deaths occurred during 47 different
incidents. Police cleared 46 out of the 47 incidents by
arrest or exceptional means. One offender is still at large.
Of the officers killed, 16 died in arrest situations, 12 died
responding to disturbance calls, 7 died investigating
suspicious persons or circumstances, 6 were ambushed, and 6
more were killed in traffic pursuits or stops. Two officers
were killed while handling mentally deranged persons, 2 died
while involved in investigative activities, 2 died in
tactical situations, and 1 died handling and transporting a
prisoner.
As in previous years, most offenders used firearms to kill
police officers in 2004. Of the 52 officers who died from
gunshot wounds, 36 were fatally injured with handguns, 12
were shot with rifles, and 4 were killed with shotguns.
Offenders used vehicles to kill 2 officers. Thirty-two
officers were wearing body armor, 11 fired their own weapons,
and 9 attempted to fire their own weapons. Seven of the
officers had their service weapons stolen, and 6 were killed
with their own weapons.
In addition to the officers feloniously killed, 82 law
enforcement officers died accidentally in the performance of
their duties in 2004. This is an increase of 1 over the 2003
total of 81 officers killed accidentally.
The UCR Program's publication, Law Enforcement Officers
Killed and Assaulted, 2004, is scheduled to be released in
the fall. The publication, produced annually, includes final
statistics and complete details.
[[Page S9382]]
Mr. KENNEDY. That is what this amendment does. Nobody can deny that
our policemen and policewomen face a greater threat every day from
these armor-piercing weapons and bullets that remain in our community.
It is outrageous and unconscionable that such ammunition continues to
be sold in the United States.
Mr. President, victims of gun violence and their families oppose this
underlying legislation. I wish to mention the organizations that
support my amendment. The International Brotherhood of Police Officers,
the National Black Police Association, the Hispanic American Police
Command Officers, the National Latino Police Officers, and the Major
City Chiefs Association representing the Nation's largest police
departments all support this amendment.
If you are interested in the security of those who are protecting us
on the streets and in our communities and in our homes across this
Nation, support my amendment, not a phony amendment that will be put on
by the other side.
I withhold my time.
Ms CANTWELL. Mr. President, today I rise to cast another vote in
favor of strict control on armor-piercing, cop-killer bullets. I am
proud to stand to strengthen the penalties against those who use this
ammunition. I also would like to set the record straight on my position
on the same amendment last year. Last year, like this year, several
Senators offered versions of this measure. I support both strengthening
the penalties and the other provisions of the Craig/Frist amendment, as
well as the broader definition of banned cop-killer ammunition in the
Kennedy amendment, which I believe provides even stronger protection
for America's law enforcement officers. That is why I am voting for
both of these amendments and why I wish I had been recorded supporting
both of these amendments last year.
In preparation for today's vote, it was discovered that my position
was inaccurately recorded last year. While Senate rules do not allow
for a formal correction of an error from a previous Congress, I today
submit for the record that I supported the Frist/Craig amendment last
year, just as I do today.
And I particularly thank both the Senator from Idaho and the Senator
from Massachusetts for their work on this important issue.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. Mr. President, how much time does Senator Kennedy have
remaining?
The PRESIDING OFFICER. He has 1 minute 39 seconds.
Amendment No. 1645
Mr. CRAIG. Mr. President, I send a relevant first-degree amendment to
the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Idaho [Mr. Craig] proposes an amendment
numbered 1645.
Mr. CRAIG. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To regulate the sale and possession of armor piercing
ammunition, and for other purposes)
On page 13, after line 4, insert the following:
SEC. 5. ARMOR PIERCING AMMUNITION.
(a) Unlawful Acts.--Section 922(a) of title 18, United
States Code, is amended by striking paragraphs (7) and (8)
and inserting the following:
``(7) for any person to manufacture or import armor
piercing ammunition, unless--
``(A) the manufacture of such ammunition is for the use of
the United States, any department or agency of the United
States, any State, or any department, agency, or political
subdivision of a State;
``(B) the manufacture of such ammunition is for the purpose
of exportation; or
``(C) the manufacture or importation of such ammunition is
for the purpose of testing or experimentation and has been
authorized by the Attorney General;
``(8) for any manufacturer or importer to sell or deliver
armor piercing ammunition, unless such sale or delivery--
``(A) is for the use of the United States, any department
or agency of the United States, any State, or any department,
agency, or political subdivision of a State;
``(B) is for the purpose of exportation; or
``(C) is for the purpose of testing or experimentation and
has been authorized by the Attorney General;''.
(b) Penalties.--Section 924(c) of title 18, United States
Code, is amended by adding at the end the following:
``(5) Except to the extent that a greater minimum sentence
is otherwise provided under this subsection, or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that provides for
an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries
armor piercing ammunition, or who, in furtherance of any such
crime, possesses armor piercing ammunition, shall, in
addition to the punishment provided for such crime of
violence or drug trafficking crime or conviction under this
section--
``(A) be sentenced to a term of imprisonment of not less
than 15 years; and
``(B) if death results from the use of such ammunition--
``(i) if the killing is murder (as defined in section
1111), be punished by death or sentenced to a term of
imprisonment for any term of years or for life; and
``(ii) if the killing is manslaughter (as defined in
section 1112), be punished as provided in section 1112.''.
(c) Study and Report.--
(1) Study.--The Attorney General shall conduct a study to
determine whether a uniform standard for the testing of
projectiles against Body Armor is feasible.
(2) Issues to be studied.--The study conducted under
paragraph (1) shall include--
(A) variations in performance that are related to the
length of the barrel of the handgun or center-fire rifle from
which the projectile is fired; and
(B) the amount of powder used to propel the projectile.
(3) Report.--Not later than 2 years after the date of
enactment of this Act, the Attorney General shall submit a
report containing the results of the study conducted under
this subsection to--
(A) the chairman and ranking member of the Committee on the
Judiciary of the Senate; and
(B) the chairman and ranking member of the Committee on the
Judiciary of the House of Representatives.
Mr. CRAIG. Mr. President, I yield 10 minutes to the Senator from
Utah.
Mr. HATCH. Mr. President, I have listened to the argument of the
distinguished Senator from Massachusetts. To hear it, you would say the
sky is truly falling, that this world is just falling apart and that
everything being done in law enforcement just doesn't work, and that if
we don't do what his amendment says, we are going to be for terrorism
and everything else in this world.
I rise to speak against the Kennedy amendment and for the Frist-Craig
first-degree amendment.
The first-degree amendment Senator Craig just filed would strengthen
the penalties for violating the existing ban on armor-piercing
ammunition for handguns. It would also create a study on the effects of
adopting a performance-based standard for ammunition.
This exact same first-degree amendment passed overwhelmingly last
year on the floor of the Senate, and I suspect it will again this year.
Let me make clear why the Kennedy amendment, without this first-degree
amendment, would be harmful.
The Kennedy amendment would ban nearly all hunting rifle ammunition.
It is also opposed by law enforcement organizations such as the
Fraternal Order of Police, the largest law enforcement agency or
organization in the country.
The fact is that we have laws in this area that are working. The
Bureau of Alcohol, Tobacco, Firearms and Explosives, the BATFE, reached
the same conclusion in a recent study. The existing laws were adopted
in 1986 and prohibit the manufacture and importation, for private use,
of handgun bullets made of certain hard metals and specially jacketed
bullets. The BATFE found that ``no additional legislation regarding
such laws is necessary.''
My friend from Massachusetts believes all we have to do is just keep
passing laws and that will solve every problem. The Departments of
Justice and Treasury opposed legislation similar to this amendment back
when it was first introduced in the 1980s. Congress rejected it then.
We ought to reject it now.
Let me give a couple other facts that are important. The Frist-Craig
amendment we are offering here today recognizes, as the Fraternal Order
of Police points out, that the current law regarding armor-piercing
ammunition is working; that is, it states that it is unlawful to
manufacture and import, for private use, handgun bullets made of
special hard metals and specially jacketed lead bullets. It also
requires the
[[Page S9383]]
Attorney General to study and report on whether it is feasible to
develop standards for the uniform testing of projectiles against body
armor.
The difference that the alternative amendment--the Frist-Craig
amendment--makes is in the law's message. It says that if armor-
piercing ammunition is used to kill a law enforcement officer, then the
maximum penalty available is the death penalty. It doesn't get any
tougher than that. If armor-piercing ammunition is used in the
commission of a crime that wounds but doesn't kill a law enforcement
officer, there will be a mandatory minimum sentence of 15 years.
Let's talk about how this is different. It sends a message to
criminals in this country that not only is this ammunition illegal, if
they use it to kill law enforcement officers who put their lives on the
line every day for our citizens, families, and communities, they will
pay the ultimate price.
Mr. President, we should reject the Kennedy amendment. We should
follow what law enforcement in this country says. It does not get any
better than the FOP. Last year, the Senate rejected the Kennedy
amendment 34 to 63 and instead adopted the Frist-Craig amendment by a
vote of 85 to 12. We should do that again.
I compliment my colleague for the hard work he has done on this
particular bill. I hope we will all vote for the alternative amendment
of Senator Craig.
I yield the floor.
Mr. CRAIG. Mr. President, how much time remains on my side?
The PRESIDING OFFICER. The Senator from Idaho has 15 minutes.
Mr. CRAIG. I will have a brief comment. Do any of my colleagues wish
to comment?
I yield 5 minutes to the Senator from Alabama.
Mr. SESSIONS. Mr. President, I have some great friends in law
enforcement. They have served their country and States and communities
well over the years. We hunt and fish together at various times. I am
not hearing them say this is what they would like to see. If you talk
to law officers, what they are concerned about is repeat dangerous
offenders getting released on the streets. A police officer never knows
when he may face someone like that around the corner, at a traffic
stop, or in a domestic violence situation. Those are things that
concern them. They do feel sometimes that the criminal justice system
is too slow, that the punishment and penalties that are imposed by law
never get carried out. Those things frustrate them. That follows
through and is consistent with the letters we have received regarding
the Kennedy amendment.
I am looking at the Law Enforcement Alliance of America letter, which
they wrote to Senator Craig. This is a very clear and strong message.
They represent 75,000 members in support of law enforcement. They
wanted to ``add our voice to the growing group of law enforcement
representatives who strongly oppose efforts to gut or kill S. 397, the
Protection of Lawful Commerce in Arms Act.''
They refer to this amendment as a ``poison pill'' and object to the
term ``cop killer bullet'' as a ``thinly veiled fraud.'' They go on to
say:
This amendment, along with other amendments, should be
identified for what they are: an outright attempt to kill S.
397.
Please know that many in the law enforcement community
encourage you to continue steadfastly in support of America's
gun manufacturers who provide our officers the tools to
return home safely at the end of their shift.
Also, the Fraternal Order of Police has written to Senator Craig in
``strong opposition'' to the amendment offered by Senator Kennedy. They
say that this will be presented as a ``officer safety issue'' to get
dangerous ``cop killer bullets off the shelves.''
Then they add:
Regardless of its presentation, the amendment's actual
claim and effect would be to expand the definition of
``armor-piercing'' to include ammunition based, not on any
threat to law enforcement officers, but on a manufacturer's
marketing strategy.
Then they add this, which is interesting:
The truth of the matter is that only one law officer has
been killed by a round fired from a handgun which penetrated
his soft body armor--and in that single instance, it was the
body armor that failed to provide the expected ballistic
protections, not because the round was ``armor-piercing.''
They say:
It is our view that no expansion or revision of the current
law is needed to protect law enforcement officers.
That letter is to Senator Craig. No additional legislation is needed
to protect law officers.
To put it simply, this is not a genuine [law enforcement]
officer safety issue.
They noted that it had been rejected previously--last year, 63 to 34.
They say it should be rejected again.
I thank the Chair.
Mr. CRAIG. Mr. President, I believe all that can be said about these
two amendments has been said. I hope my colleagues join in voting for
the first-degree relevant amendment I have offered that toughens up
penalties and recognizes the reality that the law we have today is
working to protect our law enforcement community from armor-piercing
bullets.
I yield back the balance of my time. Senator Kennedy can conclude and
we can move to a vote.
The PRESIDING OFFICER (Mr. Vitter). The Senator from Massachusetts is
recognized.
Mr. KENNEDY. Mr. President, I have in my hand the Federal Firearms
Regulations Reference Guide that bans 14 different types of ammunition
today. All we are trying to do is add a 15th. What will the 15th do? It
will be limited to cop-killer bullets.
My friends, the Republican amendment says we should study the problem
of cop-killer bullets. Our police officers are the ones that are in the
line of fire, and we are going to protect them with a study?
If you care about fighting terrorism, you will reject the Republican
amendment and vote for my amendment to take real action. If you care
about protecting our brave police officers, you will support my
amendment. They risk their lives for us every single day.
This is not about hunting. We know duck and geese and deer do not
wear armor vests; police officers do. This can save their lives. I hope
it will be accepted.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. It is my understanding, under the unanimous consent that
the Craig first degree would be the first to be voted on; Kennedy would
be the second to be voted on. I ask unanimous consent the second vote
be a 10-minute vote. I urge my colleagues to come now, as quickly as we
can, to move these votes.
I call for the yeas and nays.
The PRESIDING OFFICER. Without objection, it is so ordered. The
second vote will be 10 minutes.
Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
Vote on Amendment No. 1645
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Idaho.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from New Hampshire (Mr. Sununu) and the Senator from Kansas
(Mr. Roberts).
Further, if present and voting, the Senator from Kansas (Mr. Roberts)
would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 87, nays 11, as follows:
[Rollcall Vote No. 216 Leg.]
YEAS--87
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Jeffords
Johnson
Kerry
Kohl
Kyl
Landrieu
Leahy
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reid
Rockefeller
Salazar
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
[[Page S9384]]
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--11
Akaka
Boxer
Corzine
Feingold
Kennedy
Lautenberg
Levin
Lieberman
Reed
Sarbanes
Wyden
NOT VOTING--2
Roberts
Sununu
The amendment (No. 1645) was agreed to.
Mr. CRAIG. I move to reconsider the vote.
Mr. ENZI. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote On Amendment No. 1615
Mr. CRAIG. Mr. President, the next vote is on the Kennedy amendment.
It is a 10-minute vote. Please, everyone, stay here and vote so we can
move very rapidly through the next amendments.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
Mr. SANTORUM. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Texas (Mr. Cornyn), the Senator from Kansas (Mr. Roberts),
the Senator from Oregon (Mt. Smith), and the Senator from New Hampshire
(Mr. Sununu).
Further, if present and voting, the Senator from Kansas (Mr. Roberts)
would have voted ``nay.''
Mr. DURBIN. I announce that on this vote, the Senator from California
(Mrs. Feinstein) is paired with the Senator from Kansas (Mr. Roberts).
If present and voting, the Senator from California would have voted
``aye'' and the Senator from Kansas would have voted ``no.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 41, nays 64, as follows:
The result was announced--yeas 31, nays 64, as follows:
[Rollcall Vote No. 217 Leg.]
YEAS--31
Akaka
Bayh
Biden
Boxer
Cantwell
Carper
Chafee
Clinton
Corzine
Dayton
Dodd
Durbin
Feingold
Harkin
Inouye
Kennedy
Kerry
Kohl
Lautenberg
Levin
Lieberman
Mikulski
Murray
Nelson (FL)
Obama
Reed
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NAYS--64
Alexander
Allard
Allen
Baucus
Bennett
Bingaman
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Dorgan
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Jeffords
Johnson
Kyl
Landrieu
Leahy
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Pryor
Reid
Salazar
Santorum
Sessions
Shelby
Snowe
Specter
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--5
Cornyn
Feinstein
Roberts
Smith
Sununu
The amendment was rejected.
Mr. CRAIG. Mr. President, I move to reconsider the vote and move to
lay it on the table.
The motion to lay on the table was agreed to.
PRESIDING OFFICER. The majority leader is recognized.
Mr. FRIST. Mr. President, I ask unanimous consent that we now proceed
to the Corzine amendment as under the order and that there be 5 minutes
for Senator Corzine, 5 minutes for Senator Schumer, 5 minutes for
Senator Craig, to be followed by a vote on the Corzine amendment, with
the order for the first-degree alternative vitiated; provided that the
Senate then proceed to the Reed substitute with Senator Reed to speak
for 15 minutes, Senator Hutchison for 10 minutes, to be followed by a
vote in relation to the Reed amendment as under the order; that
following that vote there be 10 minutes equally divided for closing
remarks prior to the bill being read the third time and a vote on
passage as the order provides.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Unanimous-Consent Agreement--H.R. 3
Mr. FRIST. Mr. President, I ask unanimous consent that following
passage of S. 397, the Senate proceed to the immediate consideration of
the conference report to accompany H.R. 3, the highway bill. I further
ask unanimous consent there be 15 minutes equally divided between the
majority and minority with 30 minutes under the control of Senator
McCain. I ask unanimous consent that following the use or yielding back
of time, the Senate proceed to a vote on adoption of the conference
report with no intervening action or debate.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. FRIST. Mr. President, just a clarification. A lot of people will
have questions. We had these time allotments and we have asked Senators
not to use all of the time that has been allocated. That is the general
understanding. With that we have an orderly way of very quickly
completing our rollcall votes for the course of the day. But with that,
we can explain it over to the side that we are in shape and have a plan
in order to finish at a very reasonable hour.
Amendment No. 1619
The PRESIDING OFFICER. The Senator from New Jersey is recognized for
his amendment.
Mr. CORZINE. Mr. President, I call up amendment No. 1619.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Jersey [Mr. Corzine] for himself, Mr.
Lautenberg, Ms. Mikulski, Mr. Kennedy, Mrs. Clinton, and Mrs.
Boxer, proposes an amendment numbered 1619.
Mr. CORZINE. I ask unanimous consent that further reading of the
amendment be dispensed with.
PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To protect the rights of law enforcement officers who are
victimized by crime to secure compensation from those who participate
in arming criminals)
On page 13, after line 4, add the following:
SEC. 5. LAW ENFORCEMENT EXCEPTION.
Nothing in this Act shall be construed as limiting the
right of an officer or employee of any Federal, State, or
local law enforcement agency to recover damages authorized
under Federal or State law.
Mr. CORZINE. I ask unanimous consent that Senator Durbin be added as
a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORZINE. I thank the Chair.
I come to the floor today moved by an event that occurred in my life
this week and more importantly the life of a family in New Jersey.
Sometimes there are events that move you to feel passionately. I went
to a wake for an officer on Monday night. I actually missed a vote.
The reality is that an officer was gunned down a week before by a
gang member, a Blood, on the streets of Newark. This police officer was
a man with five children. He was 32 years old, the oldest child of 11.
Violence brought on by the illegal movement of guns in our society
and the irresponsible dealing in guns is something that actually costs
people's lives. I have an amendment which I have talked about
previously. I am a realist and I know where this amendment is going, so
we will deal with it on a practical basis.
But my amendment is an effort to protect the rights of law
enforcement officers who are victimized by gun violence. I want to make
certain that law enforcement officers can seek compensation from gun
manufacturers and dealers who participate in arming criminals.
I am not a lawyer, so I can't define negligence with the perfection
that maybe others can. I know this amendment is not going to pass, and
I know this gun industry immunity bill will pass.
This is a picture of another officer from Orange, NJ. We have heard a
lot about Detective Lemongello and his
[[Page S9385]]
partner, Officer McGuire. They were shot in 2001. They subsequently
brought a case in court and reached a $1 million settlement with the
gun dealer, because that gun dealer in West Virginia sold 12 guns to
what we call a straw buyer. This straw buyer, by the way, was standing
next to a second person who qualified as a potential purchaser of
weapons and just handed them off, and then that individual walked out,
put them in a car, drove off to New Jersey and sold them on the
streets. I call that negligence. It was so negligent and so obviously
negligent that the gun dealer, the day after being paid in cash for
those 12 guns, called up the AFT and said: We think we made a mistake.
We ought to do something about this. And so they called up the AFT. But
it was too late, and nothing happened to stop the flow of the guns to
New Jersey, but at least they recognized that they had done something
wrong.
Detective Lemongello and Officer McGuire brought a lawsuit against
this gun dealer. They went to court and received justice, although both
cannot return to the streets as police officers. They got a $1 million
settlement. One took three bullets, one took two, and the other 11 guns
purchased that day in West Virginia were also resold and distributed. I
wonder whether one of those guns was the used to murder Police Officer
Reeves last week in Newark, NJ.
I think it is time we recognize there needs to be the ability to use
both the criminal justice and the civil justice system to protect our
citizens, particularly our law enforcement officers.
We have heard from Senator Reed, who has done an enormous service to
the country, in my view, to bring up so many of the flaws in the
arguments that have been made by my colleagues who support this bill.
This bill is not right. We are taking people who protect us at their
own risk every day and we are shutting the door to the courthouse in
their face. So I believe strongly that we ought to be protecting our
law enforcement officers. I passionately believe that because I see it
and the distress it brings to families and communities and all who are
involved.
My amendment is not a political desire to challenge the NRA or
anybody else. And, frankly, I do not understand how anyone could not
support this amendment. I do not get it from a commonsense point of
view. It is a right and a responsibility that we protect those who
protect us.
The PRESIDING OFFICER. The Senator's time has expired
Mr. CORZINE. Mr. President, I will not be asking for a rollcall but a
voice vote on my amendment acknowledging the realities and the
practical aspects of moving the floor, if that is appropriate.
Mr. CRAIG. Mr. President, no one questions Senator Corzine's
intention or his sincerity as we are all sincere and concerned about
making sure that the law enforcement community of this country has the
best tools available, has the greatest protection available. We want
the laws with them, and we believe the laws are with them. And the
Fraternal Order of Police, the world's largest organization, believes
the same thing.
Last year, this amendment was opposed by them strongly and they
expressed that very clearly. The reason was they do not believe a
special category is necessary in that relationship. What is happening
here is an attempt to carve out that unique category because we think
the law enforcement community is well protected under the current law.
Mr. CORZINE. Will the Senator yield?
Mr. CRAIG. I am happy to yield.
Mr. CORZINE. I point out this year, by decision, the FOP is not
taking a position with regard to my amendment.
Mr. CRAIG. That is true, they are not taking a position this year,
but I did get permission from Tim Richardson, if there is any question
of verifying what I said, that as the executive he would be happy to
accept a call.
The point is quite simple. This is an amendment that destroys the
underlying intent of the legislation involved. I hope my colleagues
would oppose the amendment as they did last year by a substantial vote,
56 in opposition, 38 for it.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mr. SCHUMER. Mr. President, I will not speak on the amendment of the
Senator from New Jersey, which I support, but on the underlying
provision. It is hard for me to accept the fact that we are taking a
special interest, we are taking an industry that deals with something
that admittedly can be dangerous, and exempting them from liability and
giving them greater exemption than just about anybody else.
We talk about special interests. That is exactly what ``special
interests'' means. Giving it to one small group because they have
influence rather than for a whole larger group who may also deserve it.
Even when somebody is grossly negligent, even when an organization does
not abide by the rules, they will still get an exemption. How can we
say that to people who are injured, perhaps, as a result of that
negligence and carelessness?
I want people to remember the terror brought upon ordinary Americans
with the Washington snipers. These terrorists acquired their assault
rifle to shoot 13 people. They got the rifle at the Bull's Eye Shooter
Supply. Bull's Eye could not account for the sale. Bull's Eye could not
account for 230 of its guns. Yet Bull's Eye would be protected when
these families sought recompense by this legislation. Who in America
would exempt a gun dealer who repeatedly violated the law and put them
above those who had lost loved ones?
That says enough. I know my colleagues are eager to move on so I will
not speak for much longer. If Members want to know why the American
people get fed up with this body, it is legislation such as this that
caters to a small, powerful group.
The right to guns is a good thing. I support the second amendment.
But no amendment is absolute. Not the first, not the fourth, not any of
them, including the second. There are some here who believe only the
second amendment should be exalted above all the others. I disagree.
This is an awful piece of legislation, despite my respect for its
sponsor. I urge we defeat it.
To reiterate, I rise in opposition to this bill, which will give a
free pass to gun dealers and gun manufacturers, even when their
products wreak havoc on innocent people.
With all of the important business before the Senate right now, it is
shocking that we would spend our time giving unwarranted and
unprecedented immunity to an industry whose products, when allowed into
the hands of the wrong people, do incredible harm to innocent
Americans. We even put off working on a defense bill to do this favor
to the gun lobby.
This bill, will literally endanger people's lives because it
eliminates the last check we have, on bad gun dealers--the threat of
lawsuits.
This bill will hurt victims of gun violence all across America--the
innocent men, women and children who will end up being shot and killed
if this bill passes because a gun dealer can't or won't keep track of
his guns and there is no check on him.
We remember too well the terror that was brought upon ordinary
Americans when the Washington snipers, John Allen Muhammad and Lee Boyd
Malvo, went on their 23-day shooting spree.
These terrorists acquired the assault rifle that they used to shoot
13 people at Bull's Eye Shooter Supply, and Bull's Eye could not
account for that sale.
In fact, Bull's Eye couldn't account for over 230 of its guns. This
bill would protect gun dealers like Bull's Eye from lawsuits by the
families of the sniper victims.
And this wasn't a dealer operating under the radar. In fact, Bull's
Eye was inspected by the ATF not once, not twice, not even three, but
four times in the 6 years prior to the sniper shootings. And what did
those inspections reveal? They revealed that Bull's Eye could not
account for over 160 guns missing from its inventory.
One of these guns was used by the DC snipers to kill ten innocent
people and injure three others. It was only after people died that ATF
did a real investigation and found that it was not 160, but 238 guns
that were missing.
But it was still open and doing business.
What recourse did the sniper victims and their families have while
they were
[[Page S9386]]
waiting for the government to act? These victims sued the gun dealer
for negligence, and won a $2.5 million settlement.
That won't bring back the innocent people who were killed by the
snipers. But it gives these victims what we are all entitled to when
someone else's negligence does us harm--our day in court and the
opportunity to achieve justice.
This bill would shield bad dealers like Bull's Eye from justice. It
would say to people like the victims of the DC snipers--``I'm sorry but
you have no right to your day in court because Congress has made a
special exception for bad gun dealers.''
We don't do this for other industries, but due to pressure from the
gun lobby we are being asked to carve out a special exception to an
industry that makes and sells what are, in the hands of the wrong
people, very deadly weapons.
In Philadelphia, a small child found a gun on the street and
accidentally shot a 7-year-old boy. That boy's mother was able to
recover a settlement from the gun dealer, who negligently sold multiple
guns to a gun trafficker. One of those guns ultimately caused her son's
death. This bill would deny that mother her day in court.
And it's not just about money. Gun dealers and manufacturers also
agree to implement safer practices as a result of these negligence
suits. This bill would give bad dealers and manufacturers no incentive
to enact these safer practices.
Lawsuits against bad dealers, or dealers who are too lazy to
adequately keep track of their inventories, do not affect the right of
law-abiding Americans to safely use guns to hunt or collect.
But this bill does wipe away the right of American citizens to have
their day in court. This bill destroys that right and slams the
courthouse door in the faces of gun crime victims who are trying to
make sure that gun dealers are responsible.
We have heard some of my colleagues talking here about the importance
of responsibility. Well this bill says that everyone should be
responsible--except the gun industry. You get a free pass. The rules
that apply to every other industry in America don't apply to you.
Our court system works. And when a frivolous or baseless lawsuit is
brought, there are rules to make sure that it doesn't go forward.
We should allow the system to continue to work. It worked for two New
Jersey police officers who won a $1 million settlement from a dealer
who negligently sold 12 guns to a straw buyer. It worked when the
dealer agreed to implement safer sales practices to prevent criminals
from getting guns.
That is why I also want to encourage my colleagues to support the
amendment being offered by my friend from New Jersey, Senator Corzine.
This sensible amendment will allow law enforcement officers like those
two New Jersey police officers to obtain justice when careless sellers
allow guns to get into the wrong hands.
So the system needs to work for all Americans--and Congress shouldn't
create special rules for special interest groups, especially when the
lives of so many people are literally at stake.
I urge my colleagues to vote against this bill.
The PRESIDING OFFICER. The question is on agreeing to the Corzine
amendment.
The amendment (No. 1619) was rejected.
Amendment No. 1642
Mr. CRAIG. Mr. President, we have one amendment remaining, the
amendment of Senator Reed. There is a time agreement on that amendment.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. REED. Mr. President, I call up amendment numbered 1642.
I ask the Presiding Officer to let me know when I have reached 10
minutes.
My amendment has an overarching purpose, to preserve the right of an
individual to sue for negligence when they have been harmed and when
that negligence can be fairly attributed to a gun manufacturer, gun
dealer, or a gun trade association. It does not depart from the
principles of the law. In fact, it braces the fundamental principle of
the law which says if someone owes you a duty of care and violates that
duty and you have been harmed, you have a right to go into court.
The legislation before the Senate not only sweeps away the rights of
individuals but sweeps away the rights of municipalities, counties, and
other government entities. This is one of the major reasons the
advocates have been talking about in this legislation. They have said
there has been a rash of suits by municipalities, not about recovering
damages, but about undercutting and undermining the gun industry.
I am reluctant to change what I think is well-settled law and well-
settled practice, but if we are confronted with this legislation, I
propose we step back and perhaps reluctantly eliminate suits by
municipalities, but for goodness sakes, we can have and maintain suits
by individuals.
The reason this legislation is before the Senate is because they
claim there is a crisis. But if you look at the financial reports of
these companies--of Smith & Wesson and Sturm, Ruger--there is no
crisis. The financial report of Smith & Wesson indicates they are
actually reducing the amount of their reserve to cover these types of
suits, which is a strong indication, because it is real dollars, that
this threat is dissipating. It is not becoming more enhanced. This
crisis is manufactured. And it is, indeed, evaporating.
This suit will deny ordinary people, our constituents, their voice
before the courts when they have been harmed. No one is going out and
getting shot so they can bring a lawsuit. That is preposterous. They
are being shot because people have been either criminal or negligent or
both. We have criminal laws to deal with criminals, but we have a well-
established body of civil practice which allowed an individual to go in
and be compensated, receive damages for the harm they have suffered.
This legislation, the underlying legislation, would bar the door to
courthouses for real people. Who are some of these real people? We all
know about the most notorious incidents in the last several years, the
Washington, DC snipers. If this legislation passed in the last
Congress, and it was on the verge of passing, these people would have
been denied their day in court.
Ted Franklin is the husband of Linda Franklin, a resident of
Arlington, VA. On October 14, 2002, Linda Franklin was a 47-year-old
analyst for the FBI. She had two children and a loving husband. She,
like so many of us do, was in the parking lot of Home Depot loading up
purchases for their new home when she was killed by the sniper.
How did the sniper get his weapon? Well, a teenaged boy walked into a
gunshop in Washington State and apparently shoplifted a 3-foot-long
assault weapon. The manager did not know about it and he did not know
where over 200 weapons were. That is gross negligence, certainly, the
kind of fact that would get you before a court. She was killed. A 47-
year-old, dependable worker of the FBI.
Margaret Walekar is the wife of Premkumar, who was shot at the age of
54 while he was refueling his cab at a gas station. Tonight, as you
fill up your automobile at a gas station, just think, someone else was
doing that and innocently was killed and the heart of the causation of
that tragic event was the negligence.
After this legislation passes, if it does, that negligent gun dealer
and that negligent manufacturer who contributed the weapons would not
be held liable for the death of this man.
Carlos Cruz is the husband of Sarah Ramos. They had one son, age 7.
She was 34 and was sitting on a bench in front of a post office on
October 3, 2003, waiting for a ride to take her to her baby-sitting job
when she was shot and killed by the Bushmaster assault weapon
shoplifted from that negligent gun dealer in Washington State.
I could go on and on and on. These are innocent victims. These are
our neighbors. These are our constituents. These are the people we will
tell, unless we adopt the Reed amendment, you have no value in the eyes
of the court. You have no voice in that court. You are not important.
Who is important? The National Rifle Association. The gun lobby. The
gun dealers. They are important. But these good people are not
important.
At a minimum, we have to allow the tort law of the various States
that has been worked out to be operative for these individuals. Certain
States, very few, have restricted--again at the behest of the gun
lobby--certain activities. I don't object to that. But that is
[[Page S9387]]
more the normal course of activity since tort law is the province
typically of the State. But no State is going as far as this
legislation. No State is going to the extent of practically barring all
claims.
Now the proponents will stand up and say, no, no, wait, we have
exceptions. These exceptions have been carefully crafted to prevent the
very cases I have spoken about and we have spoken about from getting to
court. These are the real cases. This is what happens. People buy guns
through straw purchases. That activity is virtually totally immunized
by this legislation. As a result, we are going to see, I think, more
reckless behavior.
We have already identified through the reporting system of the ATF
and other gun shops across this country that have records and are
supplying hundreds of guns to crime scenes, some within a short period
of time. A weapon is purchased and a few days later found at a crime
scene. If they are behaving that way now under the cloud of potential
litigation, what will they do when they feel totally immunized, free,
uninhibited, to be grossly negligent? The result, of course, is not
some academic statistics. The result is people such as Linda Franklin.
I note that a few moments ago, in Senatorial time, we took a vote on
legislation that would at least have given children the ability to use
the existing tort laws of their State without the conditions and
encumbrances of this legislation. That provision by Senator Lautenberg
was struck down. That amendment failed.
What about the case with respect to the Washington sniper where Iran
Brown, a 13-year-old boy, was walking to class? All of us who were here
vividly remember watching the television set, vividly remember seeing
the reports of a young boy walking to the Benjamin Tasker Middle School
in Lanham, MD, and being shot by a sniper. The fear that grasped
everyone here, parents particularly, that their child could be the next
victim, that their school could be the next target, was palpable. He
was rushed to a nearby medical center. Thank goodness, after a month in
critical condition he survived. What if he had been critically injured
or paralyzed? Who was going to pay for that young child's life and
recovery if he could not allege that the negligence of the gun dealer
contributed to his injury?
That is the reality. This legislation is actually modeled on the
legislation adopted by the State of Idaho. Certainly that is a State
that is proud of its tradition of recreational shooting and hunting.
This State adopted this legislation. They recognized the problem and
they took exactly the same steps we have taken. If municipalities and
public interest groups are going after the gun dealers or gun
manufacturers because they want to make a political point, we are not
going to allow victims in Idaho who have been shot to be able to raise
their voice in court?
Texas has a similar statute. They put restrictions upon
municipalities, they put restrictions upon groups that might take
political suits, and we have heard about those suits, but they have let
ordinary citizens have a much more expansive right to go to court than
anything included in this legislation before the Senate.
So we are not even being consistent with the States of Idaho and
Texas and many others and we are usurping the role of States which
traditionally set the standards for tort actions in their own States'.
That is an interesting position for people who I used to think were
faithful to this notion of State rights, State practice, local control,
and let the people of Rhode Island, Idaho, and Massachusetts, let those
people decide.
We are deciding if this Reed amendment fails and we pass the
underlying bill that these people--Linda Franklin and James Franklin,
the husband of the victim, and Lisa Brown, the mother of Iran Brown--
are not worth it.
They don't mean anything. You have heard people say these are junk
lawsuits. Are these lives junk? They are not.
We have a chance at least to preserve the right of individuals who
have been harmed by the alleged negligence of gun dealers, gun
manufacturers, and gun trade associations to get their case before a
judge, to ask 12 fellow Americans to decide: Was there a duty by that
defendant of more care, more attention, more foresight? Was that duty
violated? Was I injured as a result of that and, therefore, should I be
compensated by that person?
If we fail to adopt this amendment, we are sending a very strong
message.
The PRESIDING OFFICER. The Senator has consumed 10 minutes.
Mr. REED. That message is, these people don't matter. The only thing
that matters is the gun lobby. That would be a terrible message to
send. I urge passage of the amendment and retain the remainder of my
time.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Mr. President, I rise to speak against the
substitute. This is a complete substitute for the bill. In effect, it
guts the bill. It does exactly the opposite of what the bill is
intended to do, and that is to stop abusive predatory lawsuits against
law-abiding businesses for damages caused by the criminal misuse of
their products by others.
Senator Reed mentioned some terrible situations regarding the
Washington serial killer and said that those victims would not be able
to sue the gun seller who was presumed to be negligent. In fact, that
gun seller was found to have violated the laws that are required to be
met and his license was revoked. So I believe under our bill--and it
would be our opinion under our bill--that those people would be able to
sue that gun seller. The other side has a legal opinion to the
contrary, but we disagree with that.
The bill says, what is not included in this bill is a lawsuit which
is brought against a seller for negligent entrustment or negligence,
per se. So I think you could have brought that lawsuit. In fact, those
lawsuits were settled.
What we are talking about is a substitute that appears to bar
lawsuits but, in fact, allows lawsuits by cities and counties against
firearms manufacturers and sellers if there is a State legislature
approving the lawsuit or the State Attorney General brings the suit. So
everything that we have been voting on would be reversed. If a State
legislature says: We are going to allow a city to sue, the city would
be able to sue.
We are here not to bar legitimate lawsuits. We are not here to bar
lawsuits if a gun malfunctions. What we are trying to do is stop gun
manufacturers from having to answer lawsuit after lawsuit after lawsuit
for the criminal misuse of that product. If this amendment is passed,
the bill before us will be gutted and will be of no use. We are trying
to stop frivolous lawsuits against law-abiding citizens and law-abiding
gun manufacturers. It does not stop lawsuits for negligence of the gun
itself or violations of the law by the gun seller.
I hope my colleagues will see through this substitute and stay with
the intent of the bill--to stop the frivolous lawsuits against the gun
manufacturer or the misuse of the product, not the defectiveness of the
product itself.
I yield the floor.
Mr. HATCH. President, I rise to speak against this substitute
amendment that we are now considering. This is yet another attempt to
undermine the very purpose of the Protection of Lawful Commerce in Arms
Act.
This amendment creates two loopholes so large that you could drive a
truck through them. It would allow lawsuits for lawfully making or
selling nondefective guns as long as either the State legislature
approves, or a State attorney general brings a lawsuit on behalf of a
government.
Unfortunately, some governmental entities are part of the problem
here. Cash-strapped cities and counties across the country bring these
junk lawsuits in an attempt to snare money from gun makers and sellers
for their lawful activities. To suggest that State legislative approval
will serve as a sufficient check on this problem makes no sense. These
lawsuits already have the tacit approval of their state legislatures.
And we already know well that some State attorneys general are not
above pursuing political agendas. This would only encourage them to
bring more of these types of suits.
So this amendment would not eliminate in any meaningful way the very
lawsuits that the gun liability bill is designed to address. And
furthermore, it would not even apply to any pending cases. So lawsuits
brought against the gun industry by New York City and Washington, DC,
to cite two examples,
[[Page S9388]]
would go forward under this substitute amendment.
This bill is about the integrity of our legal system. It is about
protecting law-abiding small businesses from being overwhelmed by
junk--yes, junk--lawsuits. And these are not just any small
businesses--they also happen to be critical suppliers to our military.
In my book, this alone makes them worthy of our protection.
We have acted before when we needed to protect others who were
besieged or potentially besieged by unscrupulous trial lawyers. We did
it for light aircraft manufacturers. We did it for food donors. We did
it for medical implant manufacturers. We did it for charitable
volunteers. We did it for makers of anti-terrorism technology. And we
need to do it here.
We cannot continue to allow these lawsuits that turn traditional tort
law on its head. We cannot continue to blame law-abiding citizens for
the acts of criminals. We cannot continue to witness the corruption of
our legal system and do nothing.
This substitute would do nothing, or at least it would do nothing
good. I urge my colleagues to vote against the Reed amendment.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, let me take a very few minutes because I do
want to get on with the vote. First, the underlying legislation would
deny the attorney general of Texas the right to defend the people of
Texas in court with a suit, I believe. Second, the legislature in Texas
could not authorize suits. They could under my amendment. But more
importantly, going back to the Washington sniper, none of the carve-
outs, none of the caveats would reach that. I don't think it is a
matter of dispute. Negligent entrustment has been defined in the bill
as supplying a qualified product by seller for use by another person
where the seller knows or should know. There is no allegation that the
seller knew that the young person came in and shoplifted the weapon. In
fact, he could argue that there was no sale involved whatsoever. It was
shoplifting. But that was negligence because I think we all agree that
gun sellers have an obligation to keep their weapons under control.
With respect to negligence per se, that is an unexcused violation of
some enactment or administrative law. There are many States in the
country that don't recognize that as a theory of tort recovery. Again,
you would have to show they violated the law, they violated an
administrative rule. In the case of Bushmaster, the situation is such
that I don't believe there is any relevant legislation that says that
an owner has to do anything in a way that would give rise to this
negligence, per se.
My point is that the legislation before us would effectively carve
out all these suits. That is entirely correct.
We are faced with a choice. This amendment does not allow these so-
called political suits by municipalities, by political subdivisions, by
groups, but it should allow individuals who have been harmed to have
their day in court.
I hope we can prevail.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Is the Senator ready to yield back the balance of his
time?
Mr. REED. Is the Senator ready?
Mr. CRAIG. I would be so inclined to with this simple statement.
There are 62 Senators who are cosponsors in a bipartisan way of the
underlying bill. The Reed substitute, as the Senator from Texas has
said, simply guts it, changes the whole intent of the bill very
dramatically. I urge my colleagues to vote against the Reed substitute.
I yield back the balance of my time.
Mr. REED. I yield back my time.
Mr. CRAIG. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The question is on agreeing to amendment No. 1642. The clerk will
call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Kansas (Mr. Roberts), the Senator from Oregon (Mr. Smith),
and the Senator from New Hampshire (Mr. Sununu).
Further, if present and voting, the Senator from Kansas (Mr.
Roberts), and the Senator from Oregon (Mr. Smith) would have voted
``nay.''
Mr. DURBIN. I announce that on this vote, the Senator from California
(Mrs. Feinstein) is paired with the Senator from Kansas (Mr. Roberts).
If present and voting, the Senator from California would vote ``aye''
and the Senator from Kansas would vote ``no.''
The result was announced--yeas 33, nays 63, as follows:
[Rollcall Vote No. 218 Leg.]
YEAS--33
Akaka
Bayh
Biden
Bingaman
Boxer
Cantwell
Carper
Chafee
Clinton
Corzine
Dayton
DeWine
Dodd
Durbin
Feingold
Harkin
Inouye
Jeffords
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Murray
Nelson (FL)
Obama
Reed
Sarbanes
Schumer
Stabenow
Wyden
NAYS--63
Alexander
Allard
Allen
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Pryor
Reid
Rockefeller
Salazar
Santorum
Sessions
Shelby
Snowe
Specter
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--4
Feinstein
Roberts
Smith
Sununu
The amendment (No. 1642) was rejected.
Mr. CRAIG. I move to reconsider the vote.
Mr. SANTORUM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. At this point, there are 10 minutes of debate
equally divided.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. Mr. President, I yield to my colleague for his closing
remarks.
Mr. REED. Mr. President, first, I thank Senator Craig for a very
deliberate and civil debate. I thank my staff, Steve Eichenauer.
The legislation before us is not about the facts. There is no crisis
in litigation affecting the gun manufacturers. These are the litigation
trends of Smith & Wesson: In 2001, 32 cases by municipalities; 10 by
product liability. It declined steadily, with four cases ending on
appeal and two cases with respect to personal liability. That is not a
graph showing a crisis in litigation. The slope is going the wrong way.
There is no crisis. There is no threat to procurement of military
weapons. That is also conjured up out of thin air.
This is not about legal principle. A fundamental legal principle in
this country is if you are wronged by the negligence of another, you
can go to court. This is not about legal principles. We have had talk
about intervening criminal activities taking away the negligence of
another. That is not what the statement of torts, which is the black
letter law of the country, states. These exceptions in the bill have
been carefully crafted to prevent lawsuits, not to enable appropriate
lawsuits to go forward.
It is not a failure of State courts to act. They have been acting.
These cases have been going down under current State law. They are
being handled by the States. It is about power, sheer naked power by
the National Rifle Association--the power to take us off the Defense
bill, the power to take us from that bill which would consider the
quality of life and the safety of our troops to go to this legislation,
the power to take us away from debate on stem cells which will save
people and help people, so we can protect people who deal in dangerous
weapons. It is about power; it is not about principle.
But there is something else. If this legislation passes, what
incentive will there be for a gun dealer or gun manufacturer to act
reasonably? There is a rogues' gallery of gun dealers--Realco
[[Page S9389]]
Guns in Maryland, Southern Police Equipment in Richmond--all across the
country--Atlantic Gun and Tackle in Bedford Heights, OH. Hundreds of
guns are sold and are ending up at crime scenes. If they are this
blatant and reckless now, what do they do when we say, ``Don't worry,
no one can touch you''? It will create huge disincentives.
Finally, what we are doing today is silencing the voices of victims
of gun violence, silencing people who have been wronged through the
negligence of another. This is not about trying gun manufacturers for
someone else's fault, this is about their own responsibility.
Think tonight about what happened in Washington with the snipers. An
FBI employee loading material at a Home Depot parking lot--shot. Some
of that was attributed to the negligence of a gun dealer. That lady's
husband and family would be silenced. Think about the young boy walking
to his school in Maryland--shot. His family would be silenced. Think
about the cabdriver filling up his cab. Tonight when we fill up our
cars, think for a second, what if you were struck down, caught up in
that web of violence. What if your family knew part of that was the
result of the negligence of a gun dealer, a gun manufacturer. Who will
take care of your family? Who will take care of you if you are
paralyzed? We are telling those good people, our constituents: You are
not worth it; the NRA is more important. You will suffer. If you don't
have the money, you will be on charity. That will take care of you.
This is wrong. It is wrong morally, it is wrongly legally. We should
vote against this legislation. I passionately hope we do.
I yield back my time.
Mr. ALLEN. Mr. President, I rise today in strong support of the
Protection of Lawful Commerce in Arms Act.
Contrary to the concept of individual responsibility--for the past
decade, the U.S. firearms industry has been under assault by legal
activists attempting to hold this industry somehow legally responsible
for the criminal conduct of others. Some of these suits are intended to
drive gunmakers out of business by holding manufacturers and dealers
liable for the criminal acts of others. It has been reported to me that
to date, the total cost for the firearms industry in defending
themselves from these suits exceeds $200 million.
Moreover, these lawsuits seek a broad range of remedies relating to
product design and marketing. Their demands, if granted, would create
major impediments on interstate commerce in firearms and ammunition,
including unwanted design changes, overly burdensome sales policies,
and higher costs for purchasers.
S. 397, which we are in the midst of debating, is desirable
legislation and I am proud to be a cosponsor of this bill. This
legislation will help curb frivolous litigation against a lawful
American industry and the thousands of the men and women it employs.
Imagine if General Motors or an auto dealer were to be held liable for
an accident caused by a reckless or drunk driver in one of their
manufactured vehicles or sue Budweiser. Likewise, businesses legally
engaged in manufacturing or selling firearms should not be liable for
the harm caused by people who use that firearm in an unsafe or criminal
manner. This legislation does carefully preserve the right of
individuals to have their day in court with civil liability actions for
injury or danger caused by negligence on the firearms dealer or
manufacturer or defective product, a standard in product liability law.
Moreover, these frivolous lawsuits against honest, legal companies
put our national security and our military at risk. Since the late
1960's, the U.S. military has relied on private industry to supply our
soldiers, our sailors, our airmen, and our marines. In 2004-2005 alone,
the military has contracted to buy more than 200,000 rifles, sidearms
and machine guns. And these numbers do not include new purchases for
our Federal law enforcement agencies, such as the Department of
Homeland Security. In addition, the Army fires about 2 billion rounds
of ammunition each year. While the Army does manufacture a portion of
that ammunition, it purchases half of its ammunition from private
companies.
The bottom line is, these frivolous lawsuits can shut down the very
same companies that are supplying our armed forces, our Federal law
enforcement agencies, and our local and State police. Even the
Department of Defense understands the implications that these lawsuits
have on the firearms. In a letter dated July 27, 2005, from the
Department to my colleague, Senator Sessions, DoD states, ``We believe
that passage of S. 397 would help safeguard our national security by
limiting unnecessary lawsuits against an industry that plays a critical
role in meeting the procurement needs of our men and women in
uniform.'' That is from the Department of Defense, not something
created by the NRA or the proponents of this legislation.
This legislation enjoys broad support. In addition to the NRA,
business and insurance groups such as the National Association of
Manufacturers, U.S. Chamber of Commerce, National Association of
Wholesaler-Distributors, National Federation of Independent Business,
and the American Insurance Association all support S. 397. These
lawsuits pose a threat to any business that makes or sells any lawful,
nondefective product that can be misused by third parties.
National and local unions such as the United Auto Workers,
International Association of Machinists and Aerospace Workers, and
United Mine Workers support this bill because the firearms and
ammunition industry provides good jobs for working Americans.
National hunting and wildlife conservation groups support S. 397,
because excise taxes on firearm and ammunition sales fund wildlife
management projects in the States. If these lawsuits wipe out the
industry, these funds will vanish.
This bill is not a gun control bill; we should save that debate for
another time. We should not saddle this lawsuit abuse legislation with
anti-gun amendments that seek to infringe upon the Second Amendment
rights of Virginians and Americans ability to protect themselves and
their families. If Senators need to look to gun control, the best gun
control measures are to enforce existing gun laws, which do more to
keep illegal guns out of the hands of criminals than passing new and
additional burden on the sale of firearms to honest gun-owners.
Criminals commit gun-related crimes and we should focus our attention
on these criminals rather than further restricting the rights of law-
abiding citizens.
S. 397 will stop lawsuits that are designed not to recover damages
from criminal or culpable parties, but which are designed to
financially damage the industry or force regulatory changes that would
restrict their legal business and strangle second amendment rights
across the Nation. We have a responsibility to protect those rights and
to stop the use of the courts to usurp legislative prerogatives.
I respectfully urge my colleagues to support this legislation and to
oppose extraneous amendments that would weaken or delay it from
passing. Please protect the rights of our constituents and the legal
business that is unjustly threatened by these reckless lawsuits; and
let us preserve the balance between the legislative and judicial
branches of government.
Mrs. BOXER. Mr. President, this bill is part of the special interest
agenda being pushed by the NRA and the Republican leader. First they
managed to stall the reauthorization of the assault weapon bank, even
though the bill saved lives and kept out police officers safer. Now
they are looking to grant sweeping protections to gun manufacturers and
dealers who recklessly sell guns that cause thousands of deaths in this
country each year.
Contrary to what supporters of this bill are saying, this is not
``tort reform'' and this will not, as the White House said, ``help curb
the growing problem of frivolous lawsuits.''
They call this bill the ``Protection of Lawful Commerce in Arms
Act.'' They give it a nice name to make it sound like they are
protecting trade. What if we called it the ``Shield Gun Makers From
Lawsuits When Their Defective Gun Blows Your Child's Arm Off Act?'' Or,
``You're Off the Hook if You Sell Guns to Criminals and They Use Those
Guns to Murder People Act?'' I guess those names just don't have the
same ring to them.
How about a little truth in advertising here--``Protect the Unlawful
Commerce in Arms Act?'' I don't think so. Make no mistake, this bill is
an
[[Page S9390]]
erosion of victims' rights. This bill puts the gun industry ahead of
the rights of individuals. Ahead of the Dix family. These are real
people, real victims. The doors of the courthouse would have been shut
to the family of Kenzo Dix, who ultimately settled with Beretta.
This case was brought by the parents of Kenzo, a 15-year-old boy who
was unintentionally shot and killed by a young friend with a
defectively designed gun. Kenzo's friend Michael thought that he had
unloaded his father's gun when he replaced the loaded magazine with an
empty one. But the design of the gun failed to reveal the hidden bullet
in the chamber, and this bullet killed Kenzo.
Beretta could have easily designed the gun with inexpensive, well-
known features that would have prevented Kenzo's death. They could have
included an internal lock to prevent Michael from firing the gun, or an
effective loaded-chamber indicator to alert Michael that the gun was
loaded. Although Beretta was long aware of the need for these features,
it refused to include them.
Imported guns are subject to safety standards. But because domestic
firearms are currently exempt from Federal consumer product safety
oversight, the Consumer Product Safety Commission cannot compel
gunmakers to include needed safety devices, as it routinely does with
manufacturers of other products.
So court cases like Dix v. Beretta are the only way we can ensure
gunmakers do the right thing. It is the only way. We know that just 1
percent of the gun dealers supply 57 percent of the guns used in
crimes. None of us can ever forget the terror and horror wrought by the
DC-area snipers. And no one here can forget the role that Bull's Eye
Shooter Supply of Tacoma, W.A, played in that terror. Bull's Eye says
it ``lost'' the assault rifle used by the DC area snipers to murder 12
people.
In just 3 years, Bull's Eye says it managed to ``lose'' 237 other
guns as well. This is unbelievable. How did Bull's Eye ``lose'' all of
those weapons? Clearly, the victims of Bull's Eye's gross negligence
should have their day in court. In all it supplied guns traced to at
least 52 crimes.
But if the Senate caves to the gun lobby and passes this bill,
dealers like Bull's Eye will be able to continue business as usual.
This bill eliminates any real incentives for the gun industry to act
more responsibly. This can only result in more victims in the future
like those killed by the DC area snipers.
This bill would bar cases including those brought by two New Jersey
police officers, David Lemongello and Ken McGuire. They won a
settlement from a pawn shop dealer who negligently sold twelve guns to
a straw purchaser.
How does a straw purchaser work? This is one way: A criminal wants to
buy several guns for his gang. He knows he can not buy it because he is
a felon. So he gets his girlfriend who does not have a criminal record
to go to the sales counter with him, and she buys the guns for him. The
gun dealer knows something is wrong here, this young woman wanting to
buy all these guns, but the dealer wants the money and goes ahead and
sells the guns to the girl.
As a result of the police officers' suit, the West Virginia dealer
changed its policies and now no longer engages in large-volume gun
sales. Two other dealers in the same town also changed their policies.
So the lawsuit brought about responsible behavior and our people are
safer.
I want my colleagues to consider the outcome of this lawsuit. For two
brave police officers, justice was done. The dealer was held
accountable for its reckless sale to a straw purchaser, and now the
dealer operates more responsibly. And no one declared bankruptcy.
This outcome was only possible because this special interest immunity
bill had not yet become law.
Police and big city mayors oppose the bill before us. They say it
will just make battling illegal guns more difficult and make police
officers' lives more dangerous, more deadly. They oppose immunizing gun
manufacturers against civil liability because it would remove much of
their legal incentive to behave responsibly. It would just encourage
bad manufacturers to remain bad, while giving good manufacturers the
green light to become lax.
In my home state of California, we used to have a law that shielded
gunmakers from liability, but the governor signed legislation repealing
that law 2 years ago. Today in California, gun manufacturers like
everyone else are responsible for making their products as safe as they
can be.
We are safer today in California, but that margin of safety will
disappear if Congress gives the gun industry special legal immunity.
In 1999, the late Senator John Chafee and I introduced the Firearms
Rights, Responsibilities, and Remedies Act, which would have preserved
the right of local governments and individuals to hold the gun industry
accountable for avoidable gun violence.
Congress not only failed to pass our bill; the House and now many of
my colleagues have charged off in the opposite direction to protect
gunmakers while putting the rest of us at greater risk.
Who do we represent here? I ask my colleagues that we think about the
30,000 Americans killed every year by guns, and 12,000 children wounded
each year by guns.
I urge my colleagues to listen to the police officers walking the
beat, to Lynn Dix, the mother of Kenzo Dix, and to all the other
mothers who have lost their children to gun violence, and to victims of
the DC snipers' rampage. Listen to them and vote against this extremist
bill.
Mr. FEINGOLD. Mr. President, I have already registered my
disappointment at the majority leader's decision to cease work on an
important defense authorization bill in order to move to the bill
before us, S. 397. Today, I would like to speak about S. 397, the gun
liability bill, and some of the amendments relating to firearms that
have been offered to it.
Listening to the debate on this bill, the American people might get
the impression that there are just two sides to this issue. On one side
are those who view the right to bear arms as absolute and oppose any
proposals that could remotely be considered as restrictions on that
right. On the other side are those who view gun use as an evil in our
society that must be limited in any way possible. Sometimes the
rhetoric gets turned up so high that reasoned analysis and debate is
obscured. That is unfortunate.
I have never accepted the proposition that the gun debate is a black
and white issue, a matter of ``you're with us, or you're against us.''
Instead, I have followed what I believe is a moderate course, faithful
to the Constitution and to the realities of modern society. I believe
that the second amendment was not an afterthought, that it has meaning
today and must be respected. I support the right to bear arms for
lawful purposes--for hunting and sport and for self-protection.
Millions of Americans own firearms legally and we should not take
action that tells them that they are second-class citizens or that
their constitutional rights are under attack. At the same time, there
are actions we can and should take to protect public safety that do not
infringe on constitutional rights. I supported the amendment offered by
the senior Senator from Wisconsin regarding child safety locks and was
pleased that the Senate approved this measure, which does not infringe
on the rights of law-abiding citizens to own and use guns.
I do not believe that granting special liability protection to the
gun industry is necessary to protect the right to bear arms, however.
There is no evidence that liability lawsuits threaten the existence of
the gun industry in America. I believe it would be a mistake to impose
a nationwide standard of tort liability on this industry that is more
lenient than the standard that applies to the manufacturers or
suppliers of any other product. The gun industry, like other
industries, owes a duty to consumers of reasonable care, and juries of
citizens are best able to define that standard as they do in tort cases
of every imaginable type every day in this country.
Giving sweeping liability protection will cut off the rights of those
injured by negligence and set a very dangerous precedent for how
Congress treats corporate wrongdoers. I will, therefore, vote against
S. 397.
I realize that many have very strong feelings about gun issues. But I
also believe that most Americans favor a
[[Page S9391]]
moderate approach. That is the approach I intend to follow. My approach
may not satisfy those on the extremes of this debate, but I believe it
reflects the commonsense views of reasonable Americans who regret that
this issue has become the subject of such overheated rhetoric.
Mr. LEVIN. Mr. President, the misnamed Protection of Lawful Commerce
in Arms Act would rewrite well-accepted principles of liability law,
providing one industry, the gun industry, legal protections not enjoyed
by other industries. In addition, this bill would set a dangerous
precedent by giving a single industry broad immunity from civil
liability and deprive many victims of gun violence with legitimate
cases of their day in court.
Law enforcement and community groups oppose the gun industry immunity
bill because they understand its negative impact on the legal rights of
gun violence victims. The list of law enforcement groups opposing this
bill includes the International Brotherhood of Police Officers, the
Major Cities Chiefs Association, the National Black Police Association,
and the Michigan Association of Chiefs of Police as well as police
departments from around the country. The bill is also opposed by many
organizations in Michigan including the League of Women Voters of
Michigan, the Michigan Partnership to Prevent Gun Violence, and local
chapters of the Million Mom March.
Tort law has been traditionally 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 significantly restrict the ability of State
courts to hear and decide cases involving grossly negligent or reckless
conduct by gun dealers and manufacturers, even where existing State law
would permit such cases.
Some have argued that this legislation would protect the gun industry
from frivolous lawsuits meant to bankrupt the entire industry. While
most gun dealers and manufacturers conduct their business responsibly,
this gun industry immunity legislation would provide broad protection
from liability even in these cases where gross negligence or
recklessness lead to someone being injured or killed. The issue here is
not whether innocent manufacturers or gun dealers should be held
accountable for the criminal actions of those who use their product.
Manufacturers and dealers of guns have a right to make and sell guns.
However, that right is not unlimited. 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 member of the gun industry fails to do so,
and their negligence or recklessness leads to someone being killed or
injured, they should not be immune from suit.
As this bill is currently written, it is not sufficient that persons
injured as a result of a gun manufacturer or dealer's negligence or
reckless conduct prove their case; with a few exceptions, they would
also have to show that the actions of the manufacturer or dealer were
illegal to recover damages. This is a radical departure from not only
common law but also from principles of fairness and the protection of
victims' rights.
What if a gun dealer is not violating the law, but is reckless or
grossly negligent in the way they maintain their inventory or secure
the weapons they are selling? Tragically, we had such a situation in
the 2002 DC area sniper shootings. Last year, the victims of the DC
area sniper shootings won a multimillion-dollar settlement from Bulls
Eye Shooter Supply for their negligence relative to the assault rifle
used in the shootings. According to published reports, audits by the
Bureau of Alcohol, Tobacco, Firearms and Explosives indicate that 238
guns had gone missing from Bull's Eye's inventory and over 50 had been
traced to criminal acts since 1997. Had this gun industry immunity bill
been enacted prior to the DC area sniper shootings, the victims would
have been unable to even have their case against Bull's Eye Shooter
Supply heard in court.
Another tragic example involving an innocent victim of gun violence
is that of Danny Guzman. On Christmas Eve 1999, Danny Guzman was shot
and killed in Worcester, MA. The gun used in the shooting was found
nearly a week later by a 4-year-old child and was turned over to
police. The gun had no serial number.
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 indicate this employee of the Kahr facility 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 metal
detectors, security cameras, x-ray machines, or other devices to ensure
that employees did not walk off with guns.
Despite the fact that Kahr Arms manufactures several types of ``ultra
compact'' handguns, 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.
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. If the bill before us
is enacted, the court would be required to dismiss the case against
Kahr Arms.
Responsible gun dealers and manufacturers do not need immunity from
liability, and we should not be protecting the reckless and negligent
ones.
A letter to members of Congress from 75 law professors from
universities around the country illustrates the extensive negative
impact that this bill would have on the rights of innocent gun violence
victims. Here's a few excerpts:
It might appear from the face of the bill that S. 397 and
H.R. 800 would leave open the possibility of tort liability
for truly egregious misconduct, by virtue of several
exceptions set forth in Section 4(5)(i). Those exceptions,
however, are in fact quite narrow, and would give those in
the firearm industry little incentive to attend to the risks
of foreseeable third party misconduct.
One exception, for example would purport to permit certain actions
for ``negligent entrustment.'' The bill goes on, however, to define
``negligent entrustment'' extremely narrowly. The exception applies
only to sellers, for example, and would not apply to distributors or
manufacturers, no matter how egregious their conduct. Even as to
sellers, the exception would apply only where the particular person to
whom a seller supplies a firearm is one whom the seller knows or ought
to know will use it to cause harm. The ``negligent entrustment''
exception would, therefore, not permit any action based on reckless
distribution practices, negligent sales to gun traffickers who supply
criminals, as in the above example, careless handling of firearms, lack
of security, or any of a myriad potentially negligent acts.
Another exception would leave open the possibility of liability for
certain statutory violations, variously defined, including those
described under the heading of negligence per se. Statutory violations,
however, represent just a narrow special case of negligence liability.
No jurisdiction attempts to legislate standards of care as to every
detail of life, even in a regulated industry; and there is no need. Why
is there no need? Because general principles of tort law make clear
that the mere absence of a specific statutory prohibition is not carte
blanche for unreasonable or dangerous behavior. S. 397 and H.R. 800
would turn this traditional framework on its head and free those in the
firearms industry to behave as
[[Page S9392]]
carelessly as they would like, so long as the conduct has not been
specifically prohibited. If there is no statute against leaving an open
truckload of assault rifles on a street corner, or against selling
hundreds of guns to the same individual, under this bill there could be
no tort liability.''
I ask unanimous consent that a copy of this letter be printed in the
Record.
I offered an amendment to help address this problem in the bill. Many
recklessness and gross negligence suits are not based on a violation of
the law, but on a violation of a standard. My amendment would have
provided that reckless or grossly negligent conduct by gun dealers or
manufacturers, in other words, those whose own actions are a proximate
cause of someone's death or injury, may be held liable in civil court
for the damages they caused. This approach would have preserved well-
established principles of our tort law. No one proposes, and this
amendment did not propose, to make members of the gun industry
responsible for the actions of criminals. This amendment would have
made sure members of the gun industry are still responsible for their
own reckless or negligent conduct.
It is truly unfortunate that the majority in the Senate did not adopt
my amendment to protect the rights of victims of gun violence and to
hold members of the gun industry accountable for their own actions when
they lead to the injury or death of another person. I am also
disappointed that the Senate failed to adopt amendments that would have
protected the rights of children and law enforcement officers to file
suit against irresponsible gun dealers and manufacturers who continue
to contribute to the gun violence problem in our country.
We should not infringe upon the rights of gun violence victims in
order to provide a single industry with immunity from liability. If
this bill is enacted, other industries will almost certainly line up
for similar protections. This is unwise legislation and it should not
be adopted.
The University of Michigan
Law School,
Ann Arbor, Michigan.
Dear Senators and Representatives: As a professor of law at
the University of Michigan Law School, I write to alert you
to the legal implications of S. 397 and H.R. 800, the
``Protection of Lawful Commerce in Arms Act.'' My colleagues,
who join me in signing this letter, are professors at law
schools around the country. This bill would represent a
substantial and radical departure from traditional principles
of American tort law. Though described as an effort to limit
the unwarranted expansion of tort liability, the bill would
in fact represent a dramatic narrowing of traditional tort
principles by providing one industry with a literally
unprecedented immunity from liability for the foreseeable
consequences of negligent conduct.
S. 397 and H.R. 800, described as ``a bill to prohibit
civil liability actions from being brought or continued
against manufacturers, distributors, dealers, or importers of
firearms or ammunition for damages resulting from the misuse
of their products by others,'' would largely immunize those
in the firearms industry from liability for negligence. This
would represent a sharp break with traditional principles of
tort liability. No other industry enjoys or has ever enjoyed
such a blanket freedom from responsibility for the
foreseeable and preventable consequences of negligent
conduct.
It might be suggested that the bill would merely preclude
what traditional tort law ought to be understood to preclude
in any event--lawsuits for damages resulting from third party
misconduct, and in particular from the criminal misuse of
firearms. This argument, however, rests on a fundamental
misunderstanding of American tort law. American law has never
embraced a rule freeing defendants from liability for the
foreseeable consequences of their negligence merely because
those consequences may include the criminal conduct of third
parties. Numerous cases from every American jurisdiction
could be cited here, but let the Restatement (Second) of
Torts suffice:
Sec. 449. tortious or criminal acts the probability of which makes
actor's conduct negligent
If the likelihood that a third person may act in a
particular manner is the hazard or one of the hazards which
makes the actor negligent, such an act whether innocent,
negligent, intentionally tortious, or criminal does not
prevent the actor from being liable for harm caused thereby.
(emphasis supplied)
Similarly, actors may be liable if their negligence enables
or facilitates foreseeable third party criminal conduct.
Thus, car dealers who negligently leave vehicles
unattended, railroads who negligently manage trains, hotel
operators who negligently fail to secure rooms, and
contractors who negligently leave dangerous equipment
unguarded are all potentially liable if their conduct creates
an unreasonable and foreseeable risk of third party
misconduct, including illegal behavior, leading to harm. In
keeping with these principles, cases have found that sellers
of firearms and other products (whether manufacturers,
distributors or dealers) may be liable for negligently
supplying customers or downstream sellers whose negligence,
in turn, results in injuries caused by third party criminal
or negligent conduct. In other words, if the very reason
one's conduct is negligent is because it creates a
foreseeable risk of illegal third party conduct, that illegal
conduct does not sever the causal connection between the
negligence and the consequent harm. Of course, defendants are
not automatically liable for illegal third party conduct, but
are liable only if--given the foreseeable risk and the
available precautions--they were unreasonable (negligent) in
failing to guard against the danger. In most cases, moreover,
the third party wrongdoer will also be liable. But, again,
the bottom line is that under traditional tort principles a
failure to take reasonable precautions against foreseeable
dangerous illegal conduct by others is treated no differently
from a failure to guard against any other risk.
S. 397 and H.R. 800 would abrogate this firmly established
principle of tort law. Under this bill, the firearms industry
would be the one and only business in which actors would be
free utterly to disregard the risk, no matter how high or
foreseeable, that their conduct might be creating or
exacerbating a potentially preventable risk of third party
misconduct. Gun and ammunition makers, distributors,
importers, and sellers would, unlike any other business or
individual, be free to take no precautions against even the
most foreseeable and easily preventable harms resulting from
the illegal actions of third parties. And they could engage
in this negligent conduct persistently, even with the
specific intent of profiting from sales of guns that are
foreseeably headed to criminal hands. Under this bill, a
firearms dealer, distributor, or manufacturer could park an
unguarded open pickup truck full of loaded assault rifles on
a city street corner, leave it there for a week, and yet be
free from any negligence liability if and when the guns were
stolen and used to do harm. A firearms dealer, in most
states, could sell 100 guns to the same individual every day,
even after the dealer is informed that these guns are being
used in crime--even, say, by the same violent street gang.
It might appear from the face of the bill that S. 397 and
H.R. 800 would leave open the possibility of tort liability
for truly egregious misconduct, by virtue of several
exceptions set forth in Section 4(5)(i). Those exceptions,
however, are in fact quite narrow, and would give those in
the firearm industry little incentive to attend to the risks
of foreseeable third party misconduct.
One exception, for example would purport to permit certain
actions for ``negligent entrustment.'' The bill goes on,
however, to define ``negligent entrustment'' extremely
narrowly. The exception applies only to sellers, for example,
and would not apply to distributors or manufacturers, no
matter how egregious their conduct. Even as to sellers, the
exception would apply only where the particular person to
whom a seller supplies a firearm is one whom the seller knows
or ought to know will use it to cause harm. The ``negligent
entrustment'' exception would, therefore, not permit any
action based on reckless distribution practices, negligent
sales to gun traffickers who supply criminals (as in the
above example), careless handling of firearms, lack of
security, or any of a myriad potentially negligent acts.
Another exception would leave open the possibility of
liability for certain statutory violations, variously
defined, including those described under the heading of
negligence per se. Statutory violations, however, represent
just a narrow special case of negligence liability. No
jurisdiction attempts to legislate standards of care as to
every detail of life, even in a regulated industry; and there
is no need. Why is there no need? Because general principles
of tort law make clear that the mere absence of a specific
statutory prohibition is not carte blanche for unreasonable
or dangerous behavior. S. 397 and H.R. 800 would turn this
traditional framework on its head; and free those in the
firearms industry to behave as carelessly as they would like,
so long as the conduct has not been specifically prohibited.
If there is no statute against leaving an open truckload of
assault rifles on a street corner, or against selling 100s of
guns to the same individual, under this bill there could be
no tort liability. Again, this represents radical departure
from traditional tort principles.
My aim here is simply to provide information, and insure
that you are not inadvertently misled about the meaning and
scope of S. 397 and H.R. 800. As currently drafted, this Bill
would not simply protect against the expansion of tort
liability, as has been suggested, but would in fact
dramatically limit the application of longstanding and
otherwise universally applicable tort principles. It provides
to firearms makers and distributors a literally unprecedented
form of tort immunity not enjoyed or even dreamed-of by any
other industry.
Professor Sherman J. Clark, University of Michigan Law
School; Professor Richard L. Abel, UCLA Law School;
[[Page S9393]]
Professor Barbara Bader Aldave, University of Oregon
School of Law; Professor Mark F. Anderson, Temple
University Beasley School of Law; Professor Emeritus
James Francis Bailey, III Indiana University School of
Law; Professor Elizabeth Bartholet, Harvard Law School;
Professor Peter A Bell, Syracuse University College of
Law; Professor Margaret Berger, Brooklyn Law School;
Professor M. Gregg Bloche, Georgetown University Law
Center; Professor Michael C. Blumm, Lewis and Clark Law
School; Professor Carl T. Bogus, Roger Williams
University School of Law; Professor Cynthia Grant
Bowman, Northwestern University School of Law; Director
of the MacArthur Justice Center and Lecturer in Law;
Locke Bowman, University of Chicago Law School;
Professor Scott Burris, Temple University Beasley
School of Law; Professor Donna Byrne, William Mitchell
College of Law; Professor Emily Calhoun, University of
Colorado School of Law; Professor Erwin Chemerinsky,
Duke Law School; Associate Clinical Professor Kenneth
D. Chestek, Indiana University School of Law; Associate
Professor Stephen Clark, Albany Law School; Professor
Marsha N. Cohen, University of California Hastings
College of the Law.
Professor Anthony D'Amato, Northwestern University School
of Law; Professor John L. Diamond, University of
California Hastings College of Law; Professor David R.
Dow, University of Houston Law Center; Professor Jean
M. Eggen, Widener University School of Law; Associate
Professor Christine Haight Farley, American University,
Washington College of Law; Associate Professor Ann E.
Freedman, Rutgers Law School-Camden; Professor Gerald
Frug, Harvard Law School; Professor Barry R. Furrow,
Widener University School of Law; Associate Clinical
Professor Craig Futterman, University of Chicago Law
School; Professor David Gelfand, Tulane University Law
School; Professor Phyllis Goldfarb, Boston College Law
School; Professor Lawrence Gostin, Georgetown
University Law Center; Professor Michael Gottesman,
Georgetown University Law Center; Professor Stephen E.
Gottlieb, Albany Law School; Professor Phoebe Haddon,
Temple University Beasley School of Law; Professor Jon
D. Hanson, Harvard Law School; Professor Douglas R.
Heidenreich, William Mitchell College of Law; Professor
Kathy Hessler, Case Western Reserve University School
of Law; Professor Eric S. Janus, William Mitchell
College of Law; Professor Sheri Lynn Johnson, Cornell
Law School;
Professor David J. Jung, University of California
Hastings College of Law; Associate Professor Ken
Katkin, Salmon P. Chase College of Law, Northern
Kentucky Univ.; Professor David Kairys, Temple
University Beasley School of Law; Professor Kit
Kinports, University of Illinois School of Law;
Professor Martin A. Kotler, Widener University School
of Law; Professor Baily Kuklin, Brooklyn Law School;
Professor Arthur B. LaFrance, Lewis and Clark Law
School; Professor Sylvia A. Law, NYU School of Law;
Professor Ronald Lasing, Lewis and Clark Law School;
Professor Robert Justin Lipkin, Widener University
School of Law; Professor Hugh C. Macgill, University of
Connecticut School of Law; Professor Mari J. Matsuda,
Georgetown University Law Center; Associate Professor
Finbarr McCarthy, University Beasley School of Law;
Director (Retired Professor) Christine M. McDermott,
Randolph County Family Crisis Center, North Carolina;
Professor Joan S. Meier, George Washington University
Law School; Professor Naomi Mezey, Georgetown
University Law Center; Professor Eben Moglen, Columbia
Law School; Professor Dawn C. Nunziato, George
Washington University Law School; Professor Michael S.
Perlin, New York Law School; Clinical Professor Mark A.
Peterson, Northwestern School of Law, Lewis and Clark
College.
Professor Mark C. Rahdert, Temple University Beasley
School of Law; Professor Denise Roy, William Mitchell
College of Law; Professor Joyce Saltalamachia, New York
Law School; Clinical Assistant Professor David A.
Santacroce, University of Michigan School of Law;
Professor Niels Schaumanm, William Mitchell College of
Law; Professor Margo Schlanger, Washington University
School of Law; Professor Marjorie M. Shultz, University
of California Boalt School of Law; Senior Lecturer
Stephen E. Smith, Northwestern University School of
Law; Professor Peter J. Smith, George Washington
University Law School; Professor Norman Stein,
University of Alabama School of Law; Professor Duncan
Kennedy, Harvard Law School; Professor Frank J.Vandall,
Emory University School of Law; Professor Kelly
Weisberg, University of California Hastings College of
the Law; Professor Robin L. West, Georgetown University
Law Center; Professor Christina B. Whitman, University
of Michigan School of Law; Professor William M. Wiecek,
Syracuse University College of Law; Professor Bruce
Winick, University of Miami School of Law; Professor
Stephen Wizner, Yale Law School; Professor William
Woodward, Temple University Beasley School of Law.
Mr. CRAIG. Mr. President, as the sponsor of this legislation, I rise
to clear up any questions that might arise when tying to understand the
intent of S. 397 and what its enactment would accomplish. The
Protection of Lawful Commerce in Arms Act will eliminate predatory
lawsuits that would otherwise cripple an entire industry.
First, let me make two points about what the bill will not do.
Nothing in the bill is intended to allow ``leap-frogging'' over the gun
dealer to the manufacturer. The negligent entrustment provision applies
specifically to the situation where a dealer knows or reasonably should
know that a dangerous person is purchasing a firearm with the intent to
commit, and does commit a crime with that firearm. When the
manufacturer has done nothing but sell a legal, nondefective product
according to the law, the negligent entrustment provision would not
allow bypass of the gun dealer to get to the deeper pockets of the
manufacturer.
It is also important to make sure that it is clear that the
``administrative proceedings'' section will have no effect on the
ability of the Department of Alcohol, Tobacco, and Firearms or any
administrative agency to revoke licenses or otherwise engage in
administrative proceedings to punish bad acting manufacturers,
distributors, or dealers, or otherwise enforce the laws and regulations
that apply to them.
The bill's definition section describes abusive suits in which a
party is seeking relief resulting from the criminal or unlawful misuse
of a qualified product by the person or a third party.'' This
definition clearly does not describe ATF enforcement proceedings. ATF
is authorized to begin enforcement proceedings when a violation of our
Nation's Federal gun laws has occurred. The use or misuse of the
product is irrelevant to whether ATF may begin an administrative
proceeding.
In fact, ATF does not use administrative enforcement proceedings to
seek ``relief'' for the ``misuse'' of a product. The law does not
require there be a ``use''--let alone a ``misuse'' of the product--in
order for ATF to act. ATF can begin a license revocation proceeding
against a dealer for even a single violation of Federal firearms laws,
regardless of whether the gun is ever ``used'' or ``misused'' by
anyone. ATF can begin proceedings based on recordkeeping violations,
for instance, even if no firearm ever leaves the dealer's place of
business.
Some have tried to suggest that a dealer selling a gun without doing
the proper paperwork or meeting other legal requirements might count as
``misuse.'' This stretches the term ``use'' beyond all rational
meaning, and I believe the courts of our Nation would agree. For
instance, the Supreme Court has held that firearms ``use'' in a violent
or drug-trafficking crime requires ``active employment.'' Bailey v.
U.S., 516 U.S. 137 (1995). If there is no ``use'' of the gun--only a
sale--then there can be no ``misuse.''
But even if we were to consider an illegal sale to be ``misuse,'' we
must look at the last part of the definition: A ``qualified civil
liability action'' involves the ``criminal or unlawful misuse of a
qualified product by the person or a third party.'' If we were talking
about an ATF action, then ``the person'' would be ATF itself.
Obviously, that is not what ATF claims in an administrative proceeding.
So we could only be speaking of a misuse by ``a third party''--and in
an enforcement proceeding, neither the dealer nor the ATF is a ``third
party.''
For all of these reasons, I think it is very clear that the language
in this bill about ``administrative proceedings'' should in no way
prevent any action by ATF to enforce the firearms laws of the United
States. It is only intended to prevent--and, I believe, only does
prevent--abuse of the courts and of various administrative processes
that could be manipulated unfairly at the State or local level.
Furthermore, it is worth noting that since the term ``administrative
preceeding'' is part of the definition of a ``qualified civil action,''
then all of the exemptions of the bill permitting an action to proceed
would
[[Page S9394]]
equally apply to an administrative proceeding.
However, to make this intent absolutely clear, Senator Frist and I
have offered an amendment to the exemptions section of the bill that
would add ``an action or proceeding commenced by the Attorney General
to enforce the provisions of chapter 44 of title 18, United States
Code, or chapter 53 of the Internal Revenue Code of 1986.'' The
sections of the US Code I just referenced are also known as the Gun
Control Act and the National Firearms Act. Again, this would underscore
what is the plain intent of the bill--to allow enforcement of our
Nation's firearms laws through administrative proceedings.
Second, I want to give some examples of exactly the type of predatory
lawsuits this bill will eliminate. I think it is important that we all
understand the current abuse of the legal system to implement radical
policies that could not be accomplished through the democratic process
and understand that after passing S. 397, we will finally put an end to
that abuse.
One key element of the legislation is to provide for the dismissal of
pending litigation. Dismissals should be immediate--not after trial.
Courts should dismiss on their own motion, instead of forcing
defendants to incur the additional costs and delay of filing motions
and arguing. Let me emphasize that S. 397 recognizes these lawsuits are
an abuse of courts and law-abiding businesses and individuals, and I
would respectfully submit that it should be the goal of our Nation's
courts to eliminate those abuses as swiftly as possible, when enactment
of S. 397 gives them the authority to do so.
In City of New York v. Beretta USA Corp. et al. currently set for
trial on September 7 in Federal court in Brooklyn, NY, the plaintiff
has asserted that industry members have created a ``public nuisance.''
The lawful sale of a highly regulated product later misused by
criminals is not a public nuisance;and has never been considered a
public nuisance in American jurisprudence.
Another suit expected to be affected by S. 397 is the District of
Columbia and nine individual plaintiffs, Lawson, et al. that have sued
members of the firearms industry, under a statute that unbelievably
imposes automatic and absolute liability. The law in question says you
are liable ``without regard to fault or proof of defect.'' There is
also a case pending in Federal court in the District of Columbia in
which a gun manufacturer is being sued under this very statute, Charlot
v. Bushmaster. The companies being sued under the District
``automatic'' liability law have no defense.
Another example of a lawsuit captured by this bill is the case of
Ileto v. Glock, pending in Federal court in Los Angeles, CA, against
Glock and a distributor, RSR. The United States Ninth Circuit Court of
Appeals said Glock and RSR could be sued for a criminal shooting when
Glock sold the pistol to a Washington State police department and the
distributor RSR never owned, nor sold, nor possessed the firearm.
Yet another example are the suits pending against members of the
firearms industry by cities like Gary, IN and Cleveland, OH even though
the States of Indiana and Ohio have themselves passed State laws
similar in purpose and intent to S. 397.
In the past few days, lawyers from anti-gun interest groups have
rushed to the courthouse to file at least three lawsuits, one in New
York and two in Pennsylvania against manufacturers Sturm Ruger, Phoenix
Arms, and Hi-Point, and I suspect there will be more suits filed in the
days and weeks ahead. While we do not know all the facts yet, in one of
these cases we do know that the sale by the dealer was of a single
firearm made by an employee of that dealer who was an off-duty federal
law enforcement agent and the firearm in that case was only transferred
to the buyer after he or she filled out the required paperwork and
after the background check by the FBI, as required under the Brady Act.
Congress is properly acting here under its Commerce Clause powers, as
we have done many times in the past. We are also rightly concerned, as
is the Department of Defense, that if these lawsuits succeed in driving
gun manufacturers out of business, the national defense will be harmed.
The same is true for our homeland security, as these same companies
make the firearms used by law enforcement, including the Capitol
Police, of which my distinguished colleague, the Democratic Leader Mr.
Reid was once a proud member.
The Constitution also, I believe, imposes upon Congress the duty to
protect the liberties enshrined in the Bill of Rights which includes
the second amendment. If the firearms manufacturers are driven out of
business, that second amendment will be nothing more than an illusion.
Mr. President, I hope these comments will be helpful for anyone
seeking additional information about the intent and--I believe--the
impact of enacting S. 397, the Protection of Lawful Commerce in Arms
Act.
Mr. WARNER. Mr. President, I rise today to share my views on the
legislation before the Senate, S. 397, the gun liability bill.
From the outset, let me make clear: I am a strong supporter of
measured, balanced, and fair tort reform. In my over 27 years in the
Senate, I have consistently supported measures to reform our legal
system when such measures benefit the American people as a whole,
benefit our Nation's economy, and still remain fair to legitimate
victims who have been wrongfully injured due to the wrongful actions of
another.
Without a doubt, the gun , liability bill tries to address a very
real problem in America. There is no question that the gun industry in
this country is under legal siege from frivolous lawsuits. These
lawsuits threaten the very vitality of the gun industry in America and,
by extension, the ability of those of us who enjoy hunting, sport
shooting, and the collecting of vintage guns, as I have done nearly all
of my life. In my view, there is no question that law abiding gun
manufacturers and law-abiding gun dealers deserve some measure of fair,
balanced legal reform.
But equally true is that the gun liability bill before us today is an
overly broad solution to a serious problem because it will immunize
from legitimate lawsuits for negligence those very few, I repeat, very
few irresponsible gun dealers and manufacturers in the industry whose
actions, again and again, contribute to violent crime in this country.
This wide grant of immunity undoubtedly comes with unintended
consequences.
For example, we know that under this bill, if it were law at the
time, the victims of the DC area sniper shootings would have been
unable to pursue their claim against an unbelievably negligent gun
dealer who allowed the snipers to steal the weapon they used to kill so
many innocent victims. This wasn't the first time this dealer had been
negligent in accounting for its gun inventory. Indeed, it had
previously lost over 200 weapons over a short period of time. This
dealer had a track record of again and again losing firearms. That is
why they were sued, and that is why the dealer ultimately settled the
sniper victim's lawsuit for $2.5 million. The gun liability bill,
though, would have rewarded this dealer's bad behavior by granting it
immunity for these egregious acts.
I offered an amendment to correct this flaw. My amendment would have
ensured that the 99 percent of law-abiding gun dealers in America would
be protected from frivolous lawsuits, but ensured that those very few
irresponsible gun dealers were not rewarded with immunity for their bad
behavior. Unfortunately, procedural maneuvers made by others in
accordance with Senate rules prevented me from obtaining an up-or-down
vote on my germane amendment. So these defects in the bill remain
uncorrected.
Over the course of the past week, these issues, both the pros and
cons of this bill, have been extensively debated here in the Senate.
The issues are clear. On the one hand, the need for tort reform for the
gun industry is very real. On the other hand, I believe this is an
overly broad measure that will likely treat some future victims of gun
crimes unfairly.
These factors are not easy to weigh.
But as I went through the process of examining this legislation and
listening to the debate, one particular point seemed to always stick
out above all others. And that is the preeminent importance of
America's national security.
[[Page S9395]]
As the chairman of the Senate Armed Services Committee, I recently
requested that the Department of Defense review this legislation. In
its reply, the Department's Office of General Counsel stated that the
Department supports this gun liability legislation because it ``would
help safeguard our national security by limiting unnecessary lawsuits
against an industry that plays a critical role in meeting the
procurement needs of our men and women in uniform.'' I ask unanimous
consent to include a copy of this letter in the Record.
(See exhibit 1.)
The PRESIDING OFFICER. Without objection, so ordered.
Mr. WARNER. Indeed, the gun industry does play a crucial role in
helping to equip the men and women of our Armed Forces. Companies like
Beretta U.S.A., Colt Manufacturing, and others supply a host of weapons
and small arms that are vital to our military.
This fact is significant because the truth of the matter is that, for
a variety of complex reasons, America's military is increasingly being
forced to turn to foreign sources for new technology. We simply cannot
afford to lose more and more technical expertise if we want to ensure
that our men and women in uniform will always have the best equipment
and the best technology in the world. Our national security is
dependent on having home-grown talent and expertise, and this
legislation will help ensure that we do.
Ultimately, it is for these reasons that I have decided to cast my
vote in support of this legislation.
Exhibit 1
Department of Defense,
Office of General Counsel,
Washington, DC, July 29, 2005.
Hon. John Warner,
Chairman, Committee on Armed Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: We are pleased to provide you with the
Department of Defense's view on S. 397, a bill to ``prohibit
civil liability actions from being brought or continued
against manufacturers, distributors, dealers, or importers of
firearms or ammunition for damages, injunctive or other
relief resulting from the misuse of their products by
others.''
The Department of Defense strongly supports this
legislation.
We believe that passage of S. 397 would help safeguard our
national security by limiting unnecessary lawsuits against an
industry that plays a critical role in meeting the
procurement needs of our men and women in uniform.
The Office of Management and Budget advises that, from the
standpoint of the Administration's program, there is no
objection to the presentation of this letter for the
consideration of the committee.
Sincerely,
Daniel J. Dell'Orto,
Acting.
Mr. CRAIG. Mr. President, last year, we promised the cosponsors of
this legislation that we would return to this issue and seek a fair
opportunity to consider a bill free of any poison pill amendments.
Thanks to the leadership of Senator Frist and the cooperation of our
colleagues on both sides of the aisle, that day has come.
This bill will end an outrageous abuse of our courts and law-abiding
American businesses.
This bill will not prevent a single victim from obtaining relief for
wrongs done to them by anyone in the gun industry.
S. 397 will only stop one narrowly-drawn kind of lawsuit: predatory
lawsuits seeking to hold legitimate, law-abiding businesses responsible
for harm done by the misdeeds of people over whom they had no control.
We called this bill the Protection of Lawful Commerce in Arms. That
is precisely what it is designed to do--to protect lawful commerce in
the firearms that supply our nation's military and peace officers, and
the millions of law-abiding citizens who acquire guns as collectors,
hunters, target shooters, or for self-defense.
I am pleased that the Senate will shortly be voting on this
legislation, but before we do, let me express my thanks to a number of
people who made this possible.
I would like to thank the 61 cosponsors of this legislation for their
support and encouragement--and the colleagues who counseled with me on
shaping the debate and who spoke on the floor, especially Senators
Sessions, Cornyn, Graham, Kyl, Coburn, Burr, Thune, Chambliss,
Hutchison, Hatch, Bond, and, of course, the lead Democrat sponsor of
this legislation, Senator Baucus.
As I have said, special thanks to the Republican majority leader and
whip for their leadership and the resources of their offices, including
the help of their talented staff, in particular, Eric Ueland and Sharon
Soderstrom, and Jim Hippe; Kyle Simmons, John Abegg, Laura Pemberton,
Brian Lewis and Malloy McDaniel.
I would also like to thank the Democrat leader, Senator Reid, for his
constructive input in moving us to the end of this debate.
I am especially grateful to have had the help of the Judiciary
Committee, and in particular Brett Tolman of Chairman Specter's staff,
and James Suehr.
Let me also thank the staff who spent many early and late hours
working on this legislation and the debate: William Henderson, William
Smith, Mary Chesser, Bob Taylor, Don Dempsey and Andy Moskowitz, James
Galyean, Chip Roy, Ajit Pai, and Wendy Fleming. I want you all to know
you were all part of an historic effort, and your hard work is
appreciated.
Finally, I would like to thank the distinguished gentleman from Rhode
Island, Senator Reed, for his courtesy as we worked together to manage
a difficult debate. Although we disagree on the issue, he has never
been disagreeable, and I appreciate the tone he brought to the debate.
And now, Mr. President, I urge my colleagues to pass this
legislation, and I ask for the yeas and nays.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, last year, I promised the cosponsors of
this important legislation that we would return with a fair opportunity
to work our will against the wrong kind of amendments and attempt to
establish a clear record on what I think is a very important decision
that the Senate is about to make.
I offer a very special thanks to Senator Frist for his cooperation
and all of my colleagues who have helped bring this bill to the Senate
floor in the method we have and the success we have had.
This bill is intended to do one thing, and that is to end the abuse
that is now going on in the court system of America against law-abiding
American businesses when they violate no law. But because the product
they sell in the marketplace may ultimately be misused in a criminal
act, therefore someone, including some of my colleagues, would suggest
that law-abiding business person is liable. I suggest and I think the
Senate tonight will say they ought not be. But if that law-abiding
citizen violates the law or produces a faulty product, then they are
liable. That is the law today.
What we have crafted is a very narrow exemption from predatory
lawsuits seeking to hold legitimate, law-abiding people responsible for
the harm done by the misdeeds of people over whom they have no control.
That is what S. 397 is all about. You can put all kinds of different
explanations around it, but the reality is very clear and the
legislation is really very simple. It is straightforward. It is
intended to be. It is intended to stop those kinds of abusive lawsuits.
Mr. President, I think we have concluded. If my colleague does not
have anything more to say, my colleague and I yield back the remainder
of our time.
Amendment No. 1606, as Modified
The PRESIDING OFFICER. The Frist amendment No. 1606, as modified, to
amendment No. 1605, as modified, is agreed to.
The amendment (No. 1606), as modified, was agreed to.
Amendment No. 1605, as Modified
The PRESIDING OFFICER. The Criag amendment No. 1605, as modified, as
amended, is agreed to.
The amendment (No. 1606), as modified, as amended, was agreed to.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. The question is, Shall the bill, as amended,
pass?
Mr. CRAIG. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
[[Page S9396]]
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Kansas (Mr. Roberts), the Senator from Oregon (Mr. Smith),
and the Senator from New Hampshire (Mr. Sununu).
Further, if present and voting, the Senator from Oregon (Mr. Smith)
and the Senator from Kansas (Mr. Roberts) would have voted ``yea.''
Mr. DURBIN. I announce that on this vote, the Senator from California
(Mrs. Feinstein) is paired with the Senator from Kansas (Mr. Roberts).
If present and voting, the Senator from California would vote ``no''
and the Senator from Kansas would vote ``yes.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 65, nays 31, as follows:
[Rollcall Vote No. 219 Leg.]
YEAS--65
Alexander
Allard
Allen
Baucus
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Jeffords
Johnson
Kohl
Kyl
Landrieu
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Reid
Rockefeller
Salazar
Santorum
Sessions
Shelby
Snowe
Specter
Stevens
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--31
Akaka
Bayh
Biden
Bingaman
Boxer
Cantwell
Carper
Chafee
Clinton
Corzine
Dayton
DeWine
Dodd
Durbin
Feingold
Harkin
Inouye
Kennedy
Kerry
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Murray
Obama
Reed
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--4
Feinstein
Roberts
Smith
Sununu
The bill (S. 397), as amended, was passed, as follows:
S. 397
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protection of Lawful
Commerce in Arms Act''.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds the following:
(1) The Second Amendment to the United States Constitution
provides that the right of the people to keep and bear arms
shall not be infringed.
(2) The Second Amendment to the United States Constitution
protects the rights of individuals, including those who are
not members of a militia or engaged in military service or
training, to keep and bear arms.
(3) Lawsuits have been commenced against manufacturers,
distributors, dealers, and importers of firearms that operate
as designed and intended, which seek money damages and other
relief for the harm caused by the misuse of firearms by third
parties, including criminals.
(4) The manufacture, importation, possession, sale, and use
of firearms and ammunition in the United States are heavily
regulated by Federal, State, and local laws. Such Federal
laws include the Gun Control Act of 1968, the National
Firearms Act, and the Arms Export Control Act.
(5) Businesses in the United States that are engaged in
interstate and foreign commerce through the lawful design,
manufacture, marketing, distribution, importation, or sale to
the public of firearms or ammunition products that have been
shipped or transported in interstate or foreign commerce are
not, and should not, be liable for the harm caused by those
who criminally or unlawfully misuse firearm products or
ammunition products that function as designed and intended.
(6) The possibility of imposing liability on an entire
industry for harm that is solely caused by others is an abuse
of the legal system, erodes public confidence in our Nation's
laws, threatens the diminution of a basic constitutional
right and civil liberty, invites the disassembly and
destabilization of other industries and economic sectors
lawfully competing in the free enterprise system of the
United States, and constitutes an unreasonable burden on
interstate and foreign commerce of the United States.
(7) The liability actions commenced or contemplated by the
Federal Government, States, municipalities, and private
interest groups and others are based on theories without
foundation in hundreds of years of the common law and
jurisprudence of the United States and do not represent a
bona fide expansion of the common law. The possible
sustaining of these actions by a maverick judicial officer or
petit jury would expand civil liability in a manner never
contemplated by the framers of the Constitution, by Congress,
or by the legislatures of the several States. Such an
expansion of liability would constitute a deprivation of the
rights, privileges, and immunities guaranteed to a citizen of
the United States under the Fourteenth Amendment to the
United States Constitution.
(8) The liability actions commenced or contemplated by the
Federal Government, States, municipalities, private interest
groups and others attempt to use the judicial branch to
circumvent the Legislative branch of government to regulate
interstate and foreign commerce through judgments and
judicial decrees thereby threatening the Separation of Powers
doctrine and weakening and undermining important principles
of federalism, State sovereignty and comity between the
sister States.
(b) Purposes.--The purposes of this Act are as follows:
(1) To prohibit causes of action against manufacturers,
distributors, dealers, and importers of firearms or
ammunition products, and their trade associations, for the
harm solely caused by the criminal or unlawful misuse of
firearm products or ammunition products by others when the
product functioned as designed and intended.
(2) To preserve a citizen's access to a supply of firearms
and ammunition for all lawful purposes, including hunting,
self-defense, collecting, and competitive or recreational
shooting.
(3) To guarantee a citizen's rights, privileges, and
immunities, as applied to the States, under the Fourteenth
Amendment to the United States Constitution, pursuant to
section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the
Constitution, of manufacturers, distributors, dealers, and
importers of firearms or ammunition products, and trade
associations, to speak freely, to assemble peaceably, and to
petition the Government for a redress of their grievances.
(6) To preserve and protect the Separation of Powers
doctrine and important principles of federalism, State
sovereignty and comity between sister States.
(7) To exercise congressional power under art. IV, section
1 (the Full Faith and Credit Clause) of the United States
Constitution.
SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY
ACTIONS IN FEDERAL OR STATE COURT.
(a) In General.--A qualified civil liability action may not
be brought in any Federal or State court.
(b) Dismissal of Pending Actions.--A qualified civil
liability action that is pending on the date of enactment of
this Act shall be immediately dismissed by the court in which
the action was brought or is currently pending.
SEC. 4. DEFINITIONS.
In this Act:
(1) Engaged in the business.--The term ``engaged in the
business'' has the meaning given that term in section
921(a)(21) of title 18, United States Code, and, as applied
to a seller of ammunition, means a person who devotes, time,
attention, and labor to the sale of ammunition as a regular
course of trade or business with the principal objective of
livelihood and profit through the sale or distribution of
ammunition.
(2) Manufacturer.--The term ``manufacturer'' means, with
respect to a qualified product, a person who is engaged in
the business of manufacturing the product in interstate or
foreign commerce and who is licensed to engage in business as
such a manufacturer under chapter 44 of title 18, United
States Code.
(3) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership,
society, joint stock company, or any other entity, including
any governmental entity.
(4) Qualified product.--The term ``qualified product''
means a firearm (as defined in subparagraph (A) or (B) of
section 921(a)(3) of title 18, United States Code), including
any antique firearm (as defined in section 921(a)(16) of such
title), or ammunition (as defined in section 921(a)(17)(A) of
such title), or a component part of a firearm or ammunition,
that has been shipped or transported in interstate or foreign
commerce.
(5) Qualified civil liability action.--
(A) In general.--The term ``qualified civil liability
action'' means a civil action or proceeding or an
administrative proceeding brought by any person against a
manufacturer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunctive or
declaratory relief, abatement, restitution, fines, or
penalties, or other relief'' resulting from the criminal or
unlawful misuse of a qualified product by the person or a
third party, but shall not include--
(i) an action brought against a transferor convicted under
section 924(h) of title 18, United States Code, or a
comparable or identical State felony law, by a party directly
harmed by the conduct of which the transferee is so
convicted;
(ii) an action brought against a seller for negligent
entrustment or negligence per se;
[[Page S9397]]
(iii) an action in which a manufacturer or seller of a
qualified product knowingly violated a State or Federal
statute applicable to the sale or marketing of the product,
and the violation was a proximate cause of the harm for which
relief is sought, including--
(I) any case in which the manufacturer or seller knowingly
made any false entry in, or failed to make appropriate entry
in, any record required to be kept under Federal or State law
with respect to the qualified product, or aided, abetted, or
conspired with any person in making any false or fictitious
oral or written statement with respect to any fact material
to the lawfulness of the sale or other disposition of a
qualified product; or
(II) any case in which the manufacturer or seller aided,
abetted, or conspired with any other person to sell or
otherwise dispose of a qualified product, knowing, or having
reasonable cause to believe, that the actual buyer of the
qualified product was prohibited from possessing or receiving
a firearm or ammunition under subsection (g) or (n) of
section 922 of title 18, United States Code;
(iv) an action for breach of contract or warranty in
connection with the purchase of the product;
(v) an action for death, physical injuries or property
damage resulting directly from a defect in design or
manufacture of the product, when used as intended or in a
reasonably foreseeable manner, except that where the
discharge of the product was caused by a volitional act that
constituted a criminal offense then such act shall be
considered the sole proximate cause of any resulting death,
personal injuries or property damage; or
(vi) and action or proceeding commenced by the Attorney
General to enforce the provisions of chapter 44 of title 18
or chapter 53 of title 26, United States Code.
(B) Negligent entrustment.--As used in subparagraph
(A)(ii), the term `negligent entrustment' means the supplying
of a qualified product by a seller for use by another person
when the seller knows, or reasonably should know, the person
to whom the product is supplied is likely to, and does, use
the product in a manner involving unreasonable risk of
physical injury to the person or others.
(C) Rule of construction.--The exceptions enumerated under
clauses (i) through (v) of subparagraph (A) shall be
construed so as not to be in conflict, and no provision of
this Act shall be construed to create a public or private
cause of action or remedy.
(D) Minor child exception.--Nothing in this Act shall be
construed to limit the right of a person under 17 years of
age to recover damages authorized under Federal or State law
in a civil action that meets 1 of the requirements under
clauses (i) through (v) of subparagraph (A).
(6) Seller.--The term ``seller'' means, with respect to a
qualified product--
(A) an importer (as defined in section 921(a)(9) of title
18, United States Code) who is engaged in the business as
such an importer in interstate or foreign commerce and who is
licensed to engage in business as such an importer under
chapter 44 of title 18, United States Code;
(B) a dealer (as defined in section 921(a)(11) of title 18,
United States Code) who is engaged in the business as such a
dealer in interstate or foreign commerce and who is licensed
to engage in business as such a dealer under chapter 44 of
title 18, United States Code; or
(C) a person engaged in the business of selling ammunition
(as defined in section 921(a)(17)(A) of title 18, United
States Code) in interstate or foreign commerce at the
wholesale or retail level.
(7) State.--The term ``State'' includes each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Commonwealth of the Northern Mariana
Islands, and any other territory or possession of the United
States, and any political subdivision of any such place.
(8) Trade association.--The term ``trade association''
means--
(A) any corporation, unincorporated association,
federation, business league, professional or business
organization not organized or operated for profit and no part
of the net earnings of which inures to the benefit of any
private shareholder or individual;
(B) that is an organization described in section 501(c)(6)
of the Internal Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code; and
(C) 2 or more members of which are manufacturers or sellers
of a qualified product.
(9) Unlawful misuse.--The term ``unlawful misuse'' means
conduct that violates a statute, ordinance, or regulation as
it relates to the use of a qualified product.
SEC. 5. CHILD SAFETY LOCKS.
(a) Short Title.--This section may be cited as the ``Child
Safety Lock Act of 2005''.
(b) Purposes.--The purposes of this section are--
(1) to promote the safe storage and use of handguns by
consumers;
(2) to prevent unauthorized persons from gaining access to
or use of a handgun, including children who may not be in
possession of a handgun; and
(3) to avoid hindering industry from supplying firearms to
law abiding citizens for all lawful purposes, including
hunting, self-defense, collecting, and competitive or
recreational shooting.
(c) Firearms Safety.--
(1) Mandatory transfer of secure gun storage or safety
device.--Section 922 of title 18, United States Code, is
amended by inserting at the end the following:
``(z) Secure Gun Storage or Safety Device.--
``(1) In general.--Except as provided under paragraph (2),
it shall be unlawful for any licensed importer, licensed
manufacturer, or licensed dealer to sell, deliver, or
transfer any handgun to any person other than any person
licensed under this chapter, unless the transferee is
provided with a secure gun storage or safety device (as
defined in section 921(a)(34)) for that handgun.
``(2) Exceptions.--Paragraph (1) shall not apply to--
``(A)(i) the manufacture for, transfer to, or possession
by, the United States, a department or agency of the United
States, a State, or a department, agency, or political
subdivision of a State, of a handgun; or
``(ii) the transfer to, or possession by, a law enforcement
officer employed by an entity referred to in clause (i) of a
handgun for law enforcement purposes (whether on or off
duty); or
``(B) the transfer to, or possession by, a rail police
officer employed by a rail carrier and certified or
commissioned as a police officer under the laws of a State of
a handgun for purposes of law enforcement (whether on or off
duty);
``(C) the transfer to any person of a handgun listed as a
curio or relic by the Secretary pursuant to section
921(a)(13); or
``(D) the transfer to any person of a handgun for which a
secure gun storage or safety device is temporarily
unavailable for the reasons described in the exceptions
stated in section 923(e), if the licensed manufacturer,
licensed importer, or licensed dealer delivers to the
transferee within 10 calendar days from the date of the
delivery of the handgun to the transferee a secure gun
storage or safety device for the handgun.
``(3) Liability for use.--
``(A) In general.--Notwithstanding any other provision of
law, a person who has lawful possession and control of a
handgun, and who uses a secure gun storage or safety device
with the handgun, shall be entitled to immunity from a
qualified civil liability action.
``(B) Prospective actions.--A qualified civil liability
action may not be brought in any Federal or State court.
``(C) Defined term.--As used in this paragraph, the term
`qualified civil liability action'--
``(i) means a civil action brought by any person against a
person described in subparagraph (A) for damages resulting
from the criminal or unlawful misuse of the handgun by a
third party, if--
``(I) the handgun was accessed by another person who did
not have the permission or authorization of the person having
lawful possession and control of the handgun to have access
to it; and
``(II) at the time access was gained by the person not so
authorized, the handgun had been made inoperable by use of a
secure gun storage or safety device; and
``(ii) shall not include an action brought against the
person having lawful possession and control of the handgun
for negligent entrustment or negligence per se.''.
(2) Civil penalties.--Section 924 of title 18, United
States Code, is amended--
(A) in subsection (a)(1), by striking ``or (f)'' and
inserting ``(f), or (p)''; and
(B) by adding at the end the following:
``(p) Penalties Relating To Secure Gun Storage or Safety
Device.--
``(1) In general.--
``(A) Suspension or revocation of license; civil
penalties.--With respect to each violation of section
922(z)(1) by a licensed manufacturer, licensed importer, or
licensed dealer, the Secretary may, after notice and
opportunity for hearing--
``(i) suspend for not more than 6 months, or revoke, the
license issued to the licensee under this chapter that was
used to conduct the firearms transfer; or
``(ii) subject the licensee to a civil penalty in an amount
equal to not more than $2,500.
``(B) Review.--An action of the Secretary under this
paragraph may be reviewed only as provided under section
923(f).
``(2) Administrative remedies.--The suspension or
revocation of a license or the imposition of a civil penalty
under paragraph (1) shall not preclude any administrative
remedy that is otherwise available to the Secretary.''.
(3) Liability; evidence.--
(A) Liability.--Nothing in this section shall be construed
to--
(i) create a cause of action against any Federal firearms
licensee or any other person for any civil liability; or
(ii) establish any standard of care.
(B) Evidence.--Notwithstanding any other provision of law,
evidence regarding compliance or noncompliance with the
amendments made by this section shall not be admissible as
evidence in any proceeding of any court, agency, board, or
other entity, except with respect to an action relating to
section 922(z) of title 18, United States Code, as added by
this subsection.
(C) Rule of construction.--Nothing in this paragraph shall
be construed to bar a governmental action to impose a penalty
under section 924(p) of title 18, United States Code, for a
failure to comply with section 922(z) of that title.
(d) Effective Date.--This section and the amendments made
by this section shall take effect 180 days after the date of
enactment of this Act.
[[Page S9398]]
SEC. 6. ARMOR PIERCING AMMUNITION.
(a) Unlawful Acts.--Section 922(a) of title 18, United
States Code, is amended by striking paragraphs (7) and (8)
and inserting the following:
``(7) for any person to manufacture or import armor
piercing ammunition, unless--
``(A) the manufacture of such ammunition is for the use of
the United States, any department or agency of the United
States, any State, or any department, agency, or political
subdivision of a State;
``(B) the manufacture of such ammunition is for the purpose
of exportation; or
``(C) the manufacture or importation of such ammunition is
for the purpose of testing or experimentation and has been
authorized by the Attorney General;
``(8) for any manufacturer or importer to sell or deliver
armor piercing ammunition, unless such sale or delivery--
``(A) is for the use of the United States, any department
or agency of the United States, any State, or any department,
agency, or political subdivision of a State;
``(B) is for the purpose of exportation; or
``(C) is for the purpose of testing or experimentation and
has been authorized by the Attorney General;''.
(b) Penalties.--Section 924(c) of title 18, United States
Code, is amended by adding at the end the following:
``(5) Except to the extent that a greater minimum sentence
is otherwise provided under this subsection, or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that provides for
an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries
armor piercing ammunition, or who, in furtherance of any such
crime, possesses armor piercing ammunition, shall, in
addition to the punishment provided for such crime of
violence or drug trafficking crime or conviction under this
section--
``(A) be sentenced to a term of imprisonment of not less
than 15 years; and
``(B) if death results from the use of such ammunition--
``(i) if the killing is murder (as defined in section
1111), be punished by death or sentenced to a term of
imprisonment for any term of years or for life; and
``(ii) if the killing is manslaughter (as defined in
section 1112), be punished as provided in section 1112.''.
(c) Study and Report.--
(1) Study.--The Attorney General shall conduct a study to
determine whether a uniform standard for the testing of
projectiles against Body Armor is feasible.
(2) Issues to be studied.--The study conducted under
paragraph (1) shall include--
(A) variations in performance that are related to the
length of the barrel of the handgun or center-fire rifle from
which the projectile is fired; and
(B) the amount of powder used to propel the projectile.
(3) Report.--Not later than 2 years after the date of
enactment of this Act, the Attorney General shall submit a
report containing the results of the study conducted under
this subsection to--
(A) the chairman and ranking member of the Committee on the
Judiciary of the Senate; and
(B) the chairman and ranking member of the Committee on the
Judiciary of the House of Representatives.
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