[Congressional Record Volume 151, Number 134 (Thursday, October 20, 2005)]
[House]
[Pages H8990-H9011]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 493, I
call up the Senate 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,
and ask for its immediate consideration.
The Clerk read the title of the Senate bill.
The text of the Senate bill is 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.
[[Page H8991]]
(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;
(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.
[[Page H8992]]
(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.
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.
The SPEAKER pro tempore (Mr. Simpson). Pursuant to House Resolution
493, the gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman
from Maryland (Mr. Van Hollen) each will control 30 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
[[Page H8993]]
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on S. 397, the bill
currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in support of S. 397, the Protection of Lawful
Commerce in Arms Act. This legislation passed the Senate by more than a
two-thirds vote this summer and contains the same legal reform
provisions of H.R. 800 sponsored by the gentleman from Florida (Mr.
Stearns). The Committee on the Judiciary considered and favorably
reported H.R. 800 in May of this year.
Just like H.R. 800 and similar legislation that passed the House by
more than a two-thirds majority during the last Congress, S. 397 will
stop frivolous and abusive lawsuits against manufacturers and sellers
of firearms or ammunition by prohibiting lawsuits resulting from the
criminal and unlawful misuse of their products from being filed in
Federal and State courts.
It is important to stress at the outset what this legislation does
not do. First, the legislation does not preclude lawsuits against a
person who transfers a firearm or ammunition knowing it will be used to
commit a crime of violence or drug-trafficking crime.
Second, it does not prevent lawsuits against a seller for negligent
entrustment or negligence per se.
Third, the bill includes several additional exceptions, including an
exception for actions in which a manufacturer or seller of a qualified
product knowingly violates any State or Federal statute applicable to
sales or marketing when such violation was the proximate cause of the
harm for which relief is sought.
Finally, the bill contains additional exceptions for breach of
contract or warranty in connection with the purchase of a firearm or
ammunition, and an exception for actions for damages resulting directly
from a defect in design or manufacture of a firearm or ammunition.
Recent trends in abusive litigation have inspired lawsuits against
the firearms industry on the theory of liability that would hold it
financially responsible for the actions of those who use their products
in a criminal or unlawful manner. Such lawsuits threaten to rip tort
law from its moorings in personal responsibility and may force firearms
manufacturers into bankruptcy.
{time} 1030
While some of these lawsuits have been dismissed and some States have
acted to address them, the fact remains that these lawsuits continue to
be aggressively pursued. The intended consequences of these frivolous
lawsuits could not be more clear: the financial ruin of the firearms
industry. As one of the personal injury lawyers suing American firearms
companies told the Washington Post, ``The legal fees alone are enough
to bankrupt the industry.''
Lawsuits seeking to hold the firearms industry responsible for the
criminal and unlawful use of its products are brazen attempts to
accomplish through litigation what has not been achieved by legislation
and the democratic process. Various courts have correctly described
such suits as ``improper attempts to have the court substitute its
judgment for that of the legislature.'' As explained by another Federal
judge, ``the plaintiff's attorneys simply want to eliminate handguns.''
Personal injury lawyers are seeking to obtain through the courts
stringent limits on the sale and distribution of firearms beyond the
court's jurisdictional boundaries. A New York appeals court stated
recently that ``courts are the least suited, least equipped, and thus
the least appropriate branch of government to regulate and micro-manage
the manufacturing, marketing, distribution, and sale of handguns.''
Law enforcement, military personnel rely on the domestic firearms
industry to supply them with reliable and accurate weapons that can
best protect them in the line of fire. The best and most reliable guns
will not be those designed under the requirements personal injury
attorneys seek to impose through firearms lawsuits. Rather, these
lawsuits threaten to injure the domestic firearms industry, endanger
the jobs of thousands of hard-working Americans, and provide to foreign
manufacturers an unfair advantage.
One abusive lawsuit filed in a single county could destroy a national
industry and deny citizens nationwide the right to keep and bear arms
guaranteed by the Constitution. Insofar as these lawsuits have the
practical effect of burdening interstate commerce in firearms, Congress
has the authority to act under the commerce clause of the Constitution.
The Lawful Commerce in Arms Act, by prohibiting abusive lawsuits
against the firearms industry, supports core federalism principles
articulated by the United States Supreme Court, which has made it clear
that ``one State's power to impose burdens on the interstate market . .
. is not only subordinate to the Federal power over interstate commerce
but is also constrained by the need to respect the interests of other
States . . . ''
Before closing, I think it is important to set the record straight on
one item. Some news outlets have claimed that this legislation would
have barred a lawsuit involving the D.C. sniper and the gun the sniper
obtained after it was stolen from a Washington State gun shop that did
not keep track of its inventory and did not realize that the guns were
stolen.
Anyone who actually reads this bill will immediately realize that
that claim is patently false, and it is important to note that some of
the editorial pundits apparently do not believe in reading the bills
before they write and publish. Under S. 397 a plaintiff would be
permitted to conduct discovery to establish the facts and circumstances
surrounding what happened to the firearm while in the possession,
custody, and control of the dealer and how it came into the possession
of the criminal shooters. A plaintiff would be permitted to have his or
her day in court to try to establish whether the dealer knowingly
violated or made any false entry in, or failed to make an appropriate
entry in, his records, which he is required to keep pursuant to Federal
law.
I have here a report of violations filed by the Bureau of Alcohol,
Tobacco, and Firearms regarding the Washington State gun dealer. It
contains a record of dozens of violations of Federal law and quoting
the following: ``The licensee's,'' that is, the dealer's, ``bound books
were examined and compared to the physical inventory. It was initially
determined that there were approximately 300 unaccounted for firearms.
These initial 300-plus unaccounted for firearms are considered
instances of failure to timely record disposition information in the
bound record book.''
So under S. 397 a lawsuit against that dealer could go forward, and I
include this report in the Record at this point.
DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS
Report of Violations
Name and Address of Proprietor: Borgelt, Brian & Carr,
Charles N, Bulls Eye Shooters Supply, 114 Puyallup Ave.,
Tacoma, WA 98421.
License / Permit Registry Number (if any): 991053013E38708.
County (F&E only): Pierce.
Expiration Date (if any): 5/12/2003.
Date(s) or Period of Inspection: 10/25/2002 through 11/02/
2002.
instructions
Please write firmly with a ball point pen when completing
this form. AFT officers will prepare this form in
quadruplicate. The original copy and the suspense copy (where
required) will be given to the proprietor or a responsible
person representative. The remaining copies will be submitted
with the completed inspection report. Supervisors will detach
one copy from the completed report for their files. Where
corrective action cannot be taken during inspection,
proprietors will submit the suspense copy to the Area
Supervisor as soon as the required corrections have been
made.
inspection results
An examination of your premises, records and operations has
disclosed the following violations which have been explained
to you:
Reference Number: 1.
Nature of Violation: 27 CFR section 178.124(a). Failure to
maintain ATF F4473s recording firearm transfers to non-
licensees.
Information obtained from the Washington Department of
Licensing indicates 25 handgun transfers to nonlicensed
individuals for which you had no completed ATF F4473s.
Additionally, 5 firearms transfers to nonlicensed individuals
were located in your
[[Page H8994]]
computer sales records for which you had no ATF Form 4473s.
Citation: 27 CFR 178.
Date Planned Correction:
Corrective Action: The licensee shall endeavor to locate
the required disposition records, such as ATF F4473s, in
order to show evidence that a proper transfer occurred.
Reference Number: 2.
Nature of Violation: 27 CFR section 178.124(b). Failure to
keep ATF F4473s in alphabetical, chronological, or numerical
order.
The inspection uncovered an area behind the store register
where ATF F4473s were kept. The area comprised of one lateral
file cabinet drawer and a stack of forms. There were 1257
unfiled ATF F4473s. Filing by stock # is not an acceptable
method of filing ATF F4473s.
Citation: 27 CFR 178.
Date Planned Correction:
Corrective Action: The licensee shall immediately file ATF
F4473s that were found unfiled during the inspection,
including any future completed ATF F4473s.
Reference Number: 3
Nature Of Violation: 27 CFR section 178.124(c)(3)(iii).
Failure to properly record on ATF F 4473 the date on which
the licensee contacted the NICS, response provided by the
system, and/or any identification number provided by the
system.
There were 14 ATF F 4473s that did not record this
information.
Citation: 27 CFR 178.
Date Planned Correction:
Corrective Action: The licensee shall ensure that the
complete background check information is properly entered in
the designated area on the ATF F 4473.
Reference Number: 4
Nature Of Violation: 27 CFR 178.125(e). Failure to record
dispositions made in the bound books.
The licensee's bound books were examined and compared to
the physical inventory. It was initially determined that
there were approximately 300 unaccounted for firearms. These
initial 300+ unaccounted for firearms are considered
instances of failure to timely record disposition information
in the bound record book.
Some ways of locating proper disposition of these missing
firearms included: 70 ATF Forms 4473 filed that did not get
properly entered as bound book dispositions; 25 handgun
transactions determined through the State of Washington Dept.
of Licensing with no bound book entries; at least 10
dispositions to other licensees unrecorded; and at least 6
dispositions to nonlicensees located in computer sales
records that have no proper disposition.
Even after using various sources, 78 firearms remain
missing at the close of this inspection with no idea of where
they went. List provided to licensee.
Citation: 27 CFR 178.
Date Planned Correction:
Corrective Action: The licensee shall research and resolve
all unaccounted open dispositions, and properly record the 70
ATF F 4473 dispositions into the bound books.
See attached list of 78 firearms unaccounted for and report
them on an ATF F 3310.11, Licensee Theft/Loss Report.
See list of firearms that no ATF F 4473s have been located
on but other records of transfer have been: such as 25
firearms identified by the Washington Department of Licensing
and computer records indicating a sale but no other
information in regards to the transfer.
In addition, the licensee will annotate the bound book
disposition entries with date, name, and address and note
that no ATF F 4473 exists.
Report Bushmaster rifle, model PCWA3X, Serial number
L284320 on an ATF F F3310.11, Licensee Theft/Loss Report, and
make note in the bound book.
I Have Received a Copy of This Report of Violations
(Proprietor's signature and title):
Date:
Signature and Title of Inspection Officer: Sandra Y.
Sherlock, ATF Inspector.
Date: 11/04/2002
proprietor's certification
Note: Proprietors must notify the ATF official below when
corrective actions required as a result of this inspection
have been completed. Failure to notify ATF may subject
proprietors to a recall inspection or to other administrative
action.
Mail or Delivery to (Address): Area Supervisor, Bureau of
Alcohol, Tobacco, and Firearms, 915 2nd Avenue, Room 790,
Seattle, WA 98174.
certification
I certify that the corrective actions required as a result
of this inspection have been completed.
Signature and Title of Proprietor:
Other Remarks
Mr. SENSENBRENNER. Mr. Speaker, this commonsense legislation is long
overdue. Congress must fulfill its constitutional duty, then exercise
its authority under the commerce clause to deny a few State courts the
power to bankrupt the national firearms industry and deny all Americans
their fundamental constitutionally guaranteed right to bear arms. I
urge the passage of this critical legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. VAN HOLLEN. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in strong opposition to this dangerous and
misguided bill that would exempt gun dealers from liability even when
they negligently sell weapons to criminals.
It is particularly distressing that we are taking up this bill at
this particular time. It was just 3 years ago this month, in October,
when the community that I represent right outside here of Washington,
DC was terrorized by two snipers, who left 10 people dead and three
people injured. The snipers obtained their weapons from a negligent gun
dealer in Washington State.
Mr. Speaker, I have been struck by how some people in this
institution and other places believe that the name given to a bill will
somehow fool the American people as to what the bill actually does.
This bill has the title on it Protection of Lawful Commerce in Arms
Act. In fact, what the bill does is to make lawful many negligent
actions that today are unlawful. What it actually does is protect those
gun dealers who are engaged in wrongful, negligent sales of weapons to
criminals. How does it do it? Very simple. It lowers the legal standard
of care that gun dealers must today exercise to prevent guns from
falling into the hands of criminals.
As a result, the passage of this bill will make it easier, easier,
for criminals to get weapons and it will ensure that those gun dealers
who negligently, negligently, put guns in the hands of criminals will
not be held responsible for their wrongful actions. And it is a sad
day, Mr. Speaker, in this body when special interests and the gun
industry exert such influence that they are able to convince the
Congress to strip innocent victims of crimes of their rights and
instead extend protections to those unscrupulous dealers who put guns
into the hands of criminals.
Now, proponents of this legislation will tell us that most gun
dealers in our Nation are honest and law abiding. I agree. That is
true. In fact, the Bureau of Alcohol, Firearms, and Tobacco has found
that about 1 percent, about 1 percent, of gun dealers are responsible
for nearly 60 percent of the guns that are traced to crimes. So if most
gun dealers are honorable and responsible citizens, why do they need
protection? They do not. The real beneficiaries of this legislation are
those small handful of dealers who are negligently putting guns in the
hands of criminals. It is protecting the bad apples. It is giving them
a green light to go ahead and say I see nothing when they are engaged
in sales to wrongdoers.
The proponents of this bill, as we have heard, will tell us it is
only intended to stop so-called ``frivolous lawsuits.'' That notion has
been soundly rejected by victim advocates across this country, and it
is an insult to the victims who seek redress against those dealers who
profit from negligently selling to violent predators.
Let us focus for a minute on the victims of gun crimes in our
country. Should we not be protecting them? Why do we not have a bill
entitled the ``Protection of Gun Violence Victims'' on the floor today?
Let us look at some cases. We have talked about the sniper case. I
differ strongly with the chairman of the committee, and the bill, as
the testimony has made clear, would not have allowed that suit to go
forward. I represent that area where so many people lost their lives 3
years ago this month. On many sunny days when the snipers gunned down
people who were going about their ordinary business, filling up their
gas at gas stations, shopping at grocery stores, cutting their grass, a
child who was going to school. Before those snipers were caught, they
killed 10 people and wounded three. The snipers have been caught,
convicted, and they are behind bars.
The snipers carried out those attacks with a Bushmaster XM-15
semiautomatic .223 caliber rifle. The rifle came from Bull's Eye
Shooter Supply in Tacoma, Washington, which had an extensive history of
firearms violations and had not reported the rifle as missing as
required by Federal law because they said they did not know the rifle
was missing. According to the ATF, this store and its owner had a long
history of firearms sales and records violations.
[[Page H8995]]
On January 16, 2003, the families of many of the victims of the
sniper attacks who were killed brought a lawsuit against that gun store
for their losses and injuries. The victims of that heinous crime spree
received a $2.5 million settlement. Let us be clear. If this law had
been in effect at that time, those victims and their families would
have received nothing. In fact, this bill was being debated on the
floor of this House 3 years ago this month when those killings were
going on, and this House realized how bad it would look to victimize
those people twice, to have them victimized once by the snipers and
again by the United States Congress by denying their day in court, and
that is why this House decided to withdraw the bill at that time from
consideration from the floor of the House. Here we are 3 years later
coming back and passing legislation that would have denied them their
right. Shame on us.
Let us talk about another case. In New Jersey, June, 2004, two former
New Jersey police officers, Ken McGuire and Dave Lemongello, were shot
in the line of duty with a trafficked gun that had been negligently
sold by a West Virginia dealer. Those two officers received a $1
million settlement for the negligence of this dealer. The dealer had
sold the gun along with 11 other handguns in a cash sale to a straw
buyer, a trafficker, someone who got the guns because he could legally
obtain them but then turned around and sold them to a criminal who
committed the crimes. If this bill had been in effect then, that case
would have been dismissed and justice for those police officers would
have been denied. And because of that, many law enforcement officers
and organizations have written a letter opposing this bill, a copy, Mr.
Speaker, which I will insert in the Record.
Should we not be trying to create additional incentives to improve
the business practices of these gun dealers, not give them a green
light to be negligent? What happened to protecting the victims? This
bill does just the opposite. It provides a shield to an industry that
should be providing a standard of care at least equal to other
industries and businesses. Why do we want to make the gun industry the
most protected industry in America?
It is inconceivable that we are here today at the behest of the gun
industry to provide immunity that no other industry enjoys and at the
expense of the victims of gun violence. This bill will shut the
courthouse doors on many victims who have legitimate claims.
In the interest of truth in advertising, the real name of this bill
should be the ``Protection of Negligent Gun Dealers Act.''
I urge my colleagues to oppose this.
October 19, 2005.
Re: Law Enforcement Opposition to S. 397.
U.S. Congress,
U.S. Senate,
Washington, DC.
Dear Senator: As active and retired law enforcement
officers, we are writing to urge your strong opposition to
any legislation granting the gun industry special legal
immunity. S. 397 would strip away the legal rights of gun
violence victims, including law enforcement officers and
their families, to seek redress against irresponsible gun
dealers and manufacturers.
The impact of this bill on the law enforcement community is
well illustrated by the lawsuit brought by former Orange, New
Jersey police officers Ken McGuire and David Lemongello. On
January 12, 2001, McGuire and Lemongello were shot in the
line of duty with a trafficked gun negligently sold by a West
Virginia dealer. The dealer had sold the gun, along with 11
other handguns, in a cash sale to a straw buyer for a gun
trafficker. In June 2004, the officers obtained a $1 million
settlement from the dealer. The dealer, as well as two other
area pawnshops, also have implemented safer practices to
prevent sales to traffickers, including a new policy of
ending large-volume sales of handguns. These reforms go
beyond the requirements of current law and are not imposed by
any manufacturers or distributors.
If immunity for the gun industry had been enacted, the
officers' case would have been thrown out of court and
justice would have been denied. Police officers like Ken
McGuire and Dave Lemongello put their lives on the line every
day to protect the public. Instead of honoring them for their
service, legislation granting immunity to the gun industry
would deprive them of their basic rights as American citizens
to prove their case in a court of law. We stand with officers
McGuire and Lemongello in urging you to oppose such
legislation.
Sincerely,
International Brotherhood of Police Officers (AFL-CIO
Police union).
Major Cities Chiefs Association (Represents our nation's
largest police departments).
National Black Police Association (Nationwide organization
with more than 35,000 members).
Hispanic American Police Command Officers Association
(Serving command level staff and federal agents).
National Latino Peace Officers Association.
The Police Foundation (A private, nonprofit research
institution).
Michigan Association of Chiefs of Police.
Rhode Island State Association of Chiefs of Police.
Maine Chiefs of Police Association.
Departments listed for identification purposes only:
Sergeant Moises Agosto, Pompton Lakes Police Dept. (NJ);
Sheriff Drew Alexander, Summit County Sheriff's Office (OH);
Sheriff Thomas L. Altiere, Trumbull County Sheriff's Office
(OH); Director Anthony F. Ambrose III, Newark Police Dept.
(NJ); Chief Jon J. Arcaro, Conneaut Police Dept. (OH);
Officer Robert C. Arnold, Rutherford Police Dept. (NJ); Chief
Ron Atstupenas, Blackstone Police Dept. (MA); Sheriff Kevin
A. Beck, Williams County Sheriff's Office (OH); Detective
Sean Burke, Lawrence Police Dept. (MA); Chief William
Bratton, Los Angeles Police Dept. (CA); Special Agent (Ret)
Ronald J. Brogan, Drug Enforcement Agency; and Chief Thomas
V. Brownell, Amsterdam Police Dept. (NY).
Chief (Ret) John H. Cease, Wilmington Police Dept. (NC);
Chief Michael Chitwood, Portland Police Dept. (ME); Chief
William Citty, Oklahoma Police Dept. (OK); Chief Kenneth V.
Collins, Maplewood Police Dept. (MN); Chief Daniel G.
Davidson, New Franklin Police Dept. (OH); Asst. Director Jim
Deal, US Dept. Homeland Security, Reno/Lake Tahoe Airport
(NV); Chief Gregory A. Duber, Bedford Police Dept. (OH);
Captain George Egbert, Rutherford Police Dept. (NJ); Sterling
Epps, President, Association of Former Customs Agents,
Northwest Chapter (WA); Chief Dean Esserman, Providence
Police Dept. (RI); and Captain Mark Folsom, Kansas City
Police Dept. (MO).
Chief Charles J. Glorioso, Trinidad Police Dept. (CO);
Superintendent Jerry G. Gregory (ret), Radnor Township Police
Dept. (PA); Chief Jack F. Harris, Phoenix Police Dept. (AZ);
Chief (Ret.) Thomas K. Hayselden, Shawnee Police Dept. (KS);
Terry G. Hillard, Retired Superintendent, Chicago Police
Dept. (IL); Steven Higgins, Director (Ret.) ATF; Chief Ken
James, Emeryville Police Dept. (CA); Chief Calvin Johnson,
Dumfries Police Dept. (VA); Chief Gil Kerlikowske, Seattle
Police Dept. (WA); Deputy Chief Jeffrey A. Kumorek, Gary
Police Dept. (IN); Detective John Kotnour, Overland Park
Police Dept. (KS); Detective Curt Lavarello, Sarasota County
Sheriffs Office (FL); Chief Michael T. Lazor, Willowick
Police Dept. (OH); Sheriff Simon L. Leis, Jr., Hamilton
County Sheriffs Dept. (OH); and Sheriff Ralph Lopez, Bexar
County Sheriff (TX).
Chief Cory Lyman, Ketchum Police Dept. (ID); Chief David A.
Maine, Euclid Police Dept. (OH); Chief J. Thomas Manger,
Montgomery County Police Dept. (MD); Chief Burnham E.
Matthews, Alameda Police Dept. (CA); Chief Michael T.
Matulavich, Akron Police Dept. (OH); Chief Randall C. McCoy,
Ravenna Police Dept. (OH); Sergeant Michael McGuire, Essex
County Sheriff's Dept. (NJ); Chief William P. McManus,
Minneapolis Police Dept. (MN); Chief Roy Meisner, Berkley
Police Dept. (CA); Sheriff Al Myers; Delaware County
Sheriff's Office (OH); Chief Albert Najera, Sacramento Police
Dept. (CA); Chief Mark S. Paresi, North Las Vegas Police
Dept. (NV); Sheriff Charles C. Plummer, Alameda County
Sheriffs Department (CA); Chief Edward Reines, Yavapat-
Prescott Tribal Police Dept. (AZ); Chief Cel Rivera, Lorain
Police Dept. (OH).
Officer Kevin J. Scanell, Rutherford Police Dept. (NJ);
Robert M. Schwartz, Executive Director, Maine Police Dept.
(ME); Chief Ronald C. Sloan, Arvada Police Dept. (CO); Chief
William Taylor, Rice University Police Dept. (TX); Asst.
Chief Lee Roy Villareal, Bexar County Sheriffs Dept. (TX);
Chief (Ret) Joseph J. Vince, Jr., Crime Gun Analysis Branch,
ATF (VA); Chief Garnett F. Watson, Jr., Gary Police Dept.
(IN); and Hubert Williams, President, The Police Foundation
(DC).
Mr. VAN HOLLEN. Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Texas (Mr. Smith).
Mr. SMITH of Texas. Mr. Speaker, I thank the gentleman from Wisconsin
(Mr. Sensenbrenner), the chairman of the Committee on the Judiciary,
for yielding me this time.
Mr. Speaker, my home State of Texas is well known for the number of
residents who enjoy hunting and value their right to own a gun. Today
firearms are found in half of all Texas households. A State law similar
to S. 397 which protects the gun industry from frivolous lawsuits, in
fact, is already in effect.
Texans, like most Americans, use guns for recreation, hunting, and
personal protection. Unfortunately, there are some people who want to
make gun manufacturers liable for what other others do with their
firearms.
[[Page H8996]]
Our courts are already overloaded with frivolous lawsuits designed to
topple industries that manufacture products a few individuals in our
society have decided are not safe or appropriate for Americans to have.
{time} 1045
It is the typical liberal mindset. They know better than other people
what is best for them.
If this bill does not pass, Texans and other Americans will be less
able to protect themselves from burglars, rapists, and murderers.
The Department of Justice estimates that 1.5 million Americans every
year defend themselves using a firearm.
The Constitution protects all Americans' right to bear arms. The
second amendment states, ``The right of the people to keep and bear
arms shall not be infringed.''
Mr. Speaker, to allow frivolous lawsuits to constrain the right of
Americans to lawfully use guns is both irresponsible and
unconstitutional.
I urge my colleagues to support this legislation.
Mr. VAN HOLLEN. Mr. Speaker, I yield 3 minutes to the gentlewoman
from Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Speaker, I really wish that today we
could exercise our conscience and vote without the interference of the
National Rifle Association.
I do believe in the second amendment, the Bill of Rights, that
indicates that you are allowed to bear arms; but this legislation has
nothing to do with the first or the second amendments, freedom of
expression or the right to bear arms.
More than 10 years ago, as a member of the Houston City Council, I
passed the first gun safety legislation that held parents responsible
for guns in their homes, that children were then able to take and cause
a tragedy. I remember the physician of the Texas Medical Center, Texas
Children's Hospital Emergency Room, coming and testifying. I remember a
parent coming and holding a very limp child, a paraplegic. They stood
before us and they said this is the result of a shooting by a gun by a
child who got the gun because of an irresponsible parent. That has not
stopped the State of Texas and hunters from going to hunt. In fact, it
has been noted that it saved lives and saved dollars.
Here we now have legislation with a blocked rule that suggests that
no one can sue, no one can bring a suit of liability against gun
manufacturers, and we are now suggesting that this is embedded in the
likes and the hearts of the second amendment.
Is it the second amendment that says to a Philadelphia mother who won
a settlement of only $850,000 from a gun dealer who negligently sold
multiple guns to a gun trafficker, a child found one of the guns on a
street in Philadelphia and accidently shot the mother's 7-year-old son,
is there some reason, Mr. Speaker, we should not have these kinds of
lawsuits? Is there some reason, Mr. Speaker, that this now putting
forward only a negligence per se exception will, in fact, disallow
States like Arkansas, Louisiana, Maine, Massachusetts, Nebraska, North
Dakota, Rhode Island, Vermont, Washington, West Virginia, the citizens
in those particular States cannot sue at all because they cannot meet
the standard because there is no such standard as negligence per se?
It is unfortunate that the amendments that we were prepared to offer
were not accepted; and as presently written, H.R. 800 makes individuals
who sell machine guns, semiautomatic weapons, and large capacity
ammunition feeding devices immune from that lawsuit, the same kind of
bill that we have here before us.
In my own State of Texas, a San Antonio police officer named Hector
Garza was brutally murdered when he responded to a family violence
call. His assailant was armed with a MAC-10 semiautomatic pistol and
AK-47 assault rifle. The shooter also murdered his wife and shot his
uncle in the leg. Police Chief Al Phillips said that with the fire
power the shooter possessed, the incident might have turned into a
bloodbath and he could have killed multiple officers.
This is wrong-headed and misdirected. It is time now for us to vote
this legislation down. What a shame for the NRA to buy this Congress.
Mr. Speaker, I oppose this legislation, S. 397, the Protection of
Lawful Commerce in Arms Act, just as I did with my colleagues in the
case of H.R. 800 in the Judiciary Committee and H.R. 1036 during the
108th Congress. Just as in the case of the malignant Bankruptcy
legislation, S. 256, that finessed itself to the House floor for
consideration and then to passage into law, H.R. 1036 passed in
Committee body last Congress without having given many members the
opportunity to have very substantive amendments considered--shielded by
``parliamentary inquiry.''
So too did Members have very important proposals to improve this very
troubled piece of legislation. S. 397, like its predecessor and House
companion in the 108th Congress, seeks to shield irresponsible gun
manufacturers, vendors, dealers, distributors, and importers from
liability under the guise of protection from ``frivolous lawsuits.''
As the Democrats of this Committee stated quite eloquently in its
``Dissenting Views'' (108-59), courts around the country have
recognized that precisely the types of cases that would be barred by
this bill are grounded in well-accepted legal principles, including
negligence, products liability, and public nuisance. These courts have
held that those who make and sell guns--like all others in society--are
obligated to use reasonable care in selling and designing their
product, and that they may be liable for the foreseeable injurious
consequences of their failure to do so even if those foreseeable
consequences include unlawful conduct by third parties. This bill, if
enacted, would nullify these decisions, rewriting and subverting the
common law of those States, and then, only with respect to a particular
industry.
In the past iteration of this legislation, I offered an amendment
that would exempt from the scope of the bill any lawsuit brought by a
plaintiff who was harmed as the result of an unlawful transfer of a
machine gun, semi-automatic assault weapon, or large capacity
ammunition feeding device.
The U.S. Code, in Section 922 of Title 18, makes it unlawful for a
person from transfer or possess a machine gun, semi-automatic assault
weapon, or large capacity ammunition feeding device.
In addition, before the Committee on Rules earlier this week, I
joined my colleague from California, Ms. Lofgren in offering an
amendment captioned ``Lofgre_044,'' that proposes an additional
exception to the definition of ``qualified civil liability action'' for
law enforcement officers acting in that capacity. This legislation
creates very overbroad prohibitions for civil lawsuits against
manufacturers, distributors, dealers, or importers of firearms, and
this amendment seeks to protect one of many classes of parties that
might be aggrieved as a result of firearm use.
While I do sit on the Committee on Homeland Security, one does not
have to sit on this body to know that our first responders need and
deserve protection from unintended situations. These men and women sit
at the front line and are the first to act when our Nation is
threatened. The de minimis effort that we as legislators can give is to
protect legitimate claims filed by them in connection with the use of
firearms.
The amendment did not say that gun dealers should be liable simply
because they sold a gun that was used in a crime, nor does it say that
the families of all 297 officers shot to death between 1997 and 2001
should be able to recover. It simply stated that when a gun dealer
sells 12 or 50 or 100 guns to a person who is clearly going to turn
around and sell those guns on the street, that dealer should be held
accountable. Now, the proponents of this bill may argue that the
negligence per se exception protects police officers because it allows
suits against dealers who violate other statutes, like the Brady Act.
But that is simply not true. It would not have protected Mr.
Lemongello, who brought his suit in a State that does not recognize the
doctrine of negligence per se. I would also point out that this bill
steps all over States' rights. As we've seen, with the Schiavo case and
other tort reform efforts, the leadership of the House is all too eager
to ignore principles of federalism when it suits their ideological
needs. I believe that this bill is just another example of that
principle.
More than 30,000 gun deaths occur each year, so the almost blanket
immunization from suit proposed in this legislation represents nothing
more than an unwarranted and unjust special interest giveaway to the
powerful gun lobby and a shameful attack on the legal rights of
countless innocent victims of gun violence. Never before has a class of
persons harmed by the dangerous conduct of others been wholly deprived
of the right to legal recourse.
The Lofgren-Jackson Lee amendment would have protected the right to
sue for members of the law enforcement community along with
[[Page H8997]]
their spouses or next of kin in the event of their wrongful death. I
urge my colleagues to support this important amendment.
As presently written, H.R. 800 makes those individuals who sell
machine guns, semi-automatic weapons, and large capacity ammunition
feeding devices immune from suit. It makes no sense that the sellers of
weapons that have been banned by Congress can avoid civil liability
when the guns they sell are used in crimes.
Congress has enacted this ban on machine guns, semi-automatic assault
weapons, and large capacity ammunition feeding devices for an obvious
reason--these assault weapons are dangerous.
The deadly characteristics of semi-automatic weapons and assault
rifles was tragically illustrated in my home state of Texas. A San
Antonio police officer named Hector Garza was brutally murdered when he
responded to a family violence call. His assailant was armed with a
Mac--10 semi-automatic pistol and an AK-47 assault rifle. The shooter
also murdered his wife and shot his uncle in the leg. Police Chief Al
Phillipus said that with the firepower the shooter possessed the
incident ``might have turned into a bloodbath'' and he ``could have
killed multiple officers.''
I will offer this amendment because the exceptions to the general ban
on lawsuits against gun manufacturers and merchants is too narrow. One
such narrow exception allows the victims of gun violence to sue a gun
seller only if the gun purchaser is subsequently convicted of the gun-
related crime.
This exception is insulting to the victims of gun violence. It
prioritizes the rights of negligent gun sellers and criminals before
the rights of the victims of gun violence.
H.R. 800 should be amended to allow the victims of gun violence to
seek civil damages when there are allegations of wrongdoing. Under this
amendment, the victims of gun violence will not have to wait for a
criminal conviction in order to seek justice.
To make those individuals who sell Congressionally banned machine
guns, semi-automatic assault weapons, and large capacity ammunition
feeding devices liable for their negligent acts. I also offer this
amendment so that the victims of gun violence can seek civil damages
prior to the conviction of the gun purchaser.
In addition, I will offer an amendment that will exempt from the
scope of the bill those lawsuits involving injury or death to minors
under the age of 16.
As presently written, S. 397 prohibits all civil lawsuits against gun
manufacturers, dealers, distributors, and trade associations for
damages resulting from the criminal or unlawful gun use by the injured
person or a third party.
There are a few limited exceptions to the overall ban. However, none
of the exceptions in the bill protects the rights of minors, or the
parents of minors, to sue for civil damages when a minor is injured or
killed by a gun that is negligently or recklessly manufactured or
distributed.
As it is presently written, a gun merchant could negligently or
recklessly sell a gun to a criminal. That gun could then be used to
seriously injure or kill a minor. Under S. 397, the negligent gun
seller would be immune from any civil liability.
It is absurd to deny the families of children killed or injured by
the negligence or recklessness of gun distributors an opportunity to
sue. At the very least, the victims of gun violence and their families
deserve an opportunity to have their claims heard by a judge and jury.
It is certainly foreseeable that some guns will accidentally fall
into the hands of children and serious injuries or tragic deaths may
result. Those gun distributors and sellers who fail to conduct adequate
background checks, or fail to take other measures to ensure that guns
to do not fall into criminal hands should not be free from liability.
Gun merchants have a responsibility to conduct their business safely
and protect the lives of children. When they fail to do so they should
be held accountable in a court of law.
Gun manufacturers and merchants should be liable in courts of law
when their negligent acts result in the death or injury to a minor.
Mr. Speaker, this is a bad bill, and the amendments that strive to
make some improvements that will provide relief to parties that need
protection were closed out without consideration. For the reasons above
stated, I reject this legislation and I urge my colleagues to join me.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Virginia (Mr. Boucher), my Democratic colleague on the Committee
on the Judiciary.
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
Mr. BOUCHER. Mr. Speaker, I thank the gentleman for yielding me time.
I rise in support of S. 397, the Protection of Lawful Commerce in
Firearms Act.
It will prohibit lawsuits against firearms manufacturers, legal
distributors, dealers or importers for damages resulting from the
misuse of a firearm by a third party.
The bill is very similar to a House bill that I joined with the
gentleman from Florida (Mr. Stearns) in sponsoring earlier this year.
Our House bill achieves the same objectives as the Senate bill now
before us, and the House bill has been cosponsored by 257 Members of
this body.
The lawsuits against the firearms industry are nothing more than
thinly veiled attempts to circumvent the legislative process and
achieve gun control through litigation.
Frustrated that Congress and most State legislatures have rejected
repeated attempts to have gun control imposed, some have now turned to
the courts in their effort to limit the legal availability of firearms.
I want for my constituents and for all Americans to be able to
purchase guns for lawful purposes. The vast majority of gun owners use
their firearms responsibly. They should not be restricted in their
future purchases because the threat of lawsuits has rendered the
American market economically unattractive for the manufacturers.
While the bill before us will prohibit lawsuits against manufacturers
and others in the chain of distribution based upon misuse of the
firearm, it does not interfere with traditional remedies for damages
resulting from defects or design in the manufacture of products.
The bill provides no shelter to those who would sell firearms
illegally. It does not affect suits against anyone who has violated
other State or Federal laws.
This bill is a commonsense measure to eliminate lawsuits which
unjustly interrupt the legal sale of a legal product.
A majority of States, including my home State of Virginia, enacted
similar laws prohibiting these suits.
With our votes today, we will provide a much-needed additional
response. I urge approval of the measure.
Mr. VAN HOLLEN. Mr. Speaker, I wish my colleague from Virginia would
come meet with 10 families from the Washington area who had victims
killed during the sniper attacks 3 years ago, as well as the police
officers from New Jersey, and tell them that those lawsuits were
frivolous lawsuits.
Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr.
Farr).
Mr. FARR. Mr. Speaker, I rise in strong opposition to this bill.
I would first like to say that I support the rights of gun owners and
hunters, but this bill makes it clear this is not about the second
amendment. This bill is about a direct assault on our civil justice
system that endorses unscrupulous corporate behavior.
Once again, with this bill, democracy has been thwarted by bringing
this bill to the floor. Very reasonable amendments were offered, but
the majority adopted a restrictive rule that prevented them from being
heard on the floor today.
One of those amendments would have expanded the ban on armor-piercing
bullets also. For God's sake, who in this country needs to own armor-
piercing bullets?
We are not legislating via the intended democratic process. The
people of this country want and deserve an open and participatory
government, not law by fiat.
I urge a strong ``no'' vote on this bill.
Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman
from Florida (Mr. Stearns), the principal author of the bill.
(Mr. STEARNS asked and was given permission to revise and extend his
remarks.)
Mr. STEARNS. Mr. Speaker, I thank the distinguished chairman of the
Committee on the Judiciary for his help in bringing this bill to the
floor. He has been a leader on this bill in shepherding it through the
Committee on the Judiciary time and time again.
I also want to thank my colleague from Virginia (Mr. Boucher) for
introducing this bill with me through the last three sessions of
Congress and all the other Members who have strongly supported the
Protection of Lawful Commerce in Arms Act over the years.
Mr. Speaker, this is a bipartisan bill. Almost the same bill passed
this House
[[Page H8998]]
on this floor 285 to 140. Over 60 Democrats supported it.
This legislation will stop baseless lawsuits against gun
manufacturers or dealers based on the criminal or unlawful third-party
misuse of firearms.
This may seem like an obvious idea. After all, would we hold a car
company responsible if a driver gets drunk or reckless and hits
somebody with a vehicle? Of course not. This is the United States of
America where we are responsible for our own actions; but yet these
frivolous lawsuits against a vital, legitimate and perfectly lawful
industry have continued unabated for the last several years in the
simple hope of bankrupting this industry.
This is a commonsense, logical piece of legislation whose time has
come. The States, the courts and the American people have decided again
and again that these harmful and baseless lawsuits are unfair and must
be done away with.
If anyone does not believe me, let us take a look at this map. It
shows that 33 States, or two-thirds of the United States, have laws
prohibiting these same frivolous lawsuits. These States consider it
fair and just to prevent these junk lawsuits. I am proud to say my home
State of Florida is one of those States. The bill we are considering
today is designed to simply mirror these States and what they have done
to provide a unified system of laws United States-wide.
There have also been dozens and dozens of lawsuits at the local,
State, and Federal levels which have rejected this theory that gun
manufacturers should be held liable for what violent criminals do with
their lawful products.
I have three charts here which list in detail these cases. It is
really quite impressive the number of these frivolous lawsuits that
have been rejected out of hand.
If my colleagues would bear with me, I would like to focus on a
recent case in this last chart which is circled. This case took place
in the County of Los Angeles, California. The cities of Los Angeles,
San Francisco, and 12 other California municipalities filed lawsuits
against 28 manufacturers, six distributors and three associations. This
was a mammoth case and they lost. They appealed it, and it was
unanimously upheld by a lower court and the appellate court.
I would remind my colleagues that this is an idea that has been
enormously popular with the public, also. A March 2005 poll conducted
by the Moore Information Public Information Research Company showed
that a remarkable 79 percent of the American people believe that
firearm manufacturers should not be held legally responsible for
violence committed by armed criminals.
The fact of the matter is that there are several pending lawsuits
which continue to abuse the judicial system and would threaten
legitimate, lawful businesses, including in New York City and right
here in the District of Columbia.
We must also consider that just the mere threat of these suits or
taking the first couple of legal steps to defend these suits simply can
be enough to force some of the smaller companies out of business. As
one proponent of this tactic once bragged, we are going to make the gun
industry die a ``death by a thousand cuts.''
This legislation will end these coercive and undemocratic lawsuits.
I remind my colleagues and those who are watching at home that this
legislation is very narrowly tailored to allow suits against any bad
actors to proceed. It includes carefully crafted exceptions to allow
legitimate victims their day in court for cases involving defective
firearms, breaches of contract, criminal behavior by a gun maker or
seller, or the negligent entrustment of a firearm to an irresponsible
person.
In conclusion, Mr. Speaker, I am pleased that we are voting on this
bill. It has been a 6-year effort. It is with a great deal of
satisfaction to the 257 bipartisan cosponsors that this bill, H.R. 800,
as amended by the Senate and passed by the Senate two to one, 65 to 31,
is poised to pass in this Congress as a bipartisan law.
I urge my colleagues to join with us in voting for this piece of
legislation.
Mr. VAN HOLLEN. Mr. Speaker, it seems that the charts that my
colleague showed listing all the lawsuits actually make the case for
how the system is working because, as he knows, many of those cases
have been dismissed by the court. The court looked at them; and those
cases that were frivolous, it decided to dismiss.
So why are we trying to change the rules? It is because there are
some cases that have merit, like the sniper cases and others, that
would continue to go through, and under this legislation, they will
not. Why change the rules to deny legitimate victims their day in
court?
Mr. Speaker, I yield 3 minutes to my colleague from New York (Mrs.
McCarthy) who has been such a leader on this important issue in
protecting the victims of gun violence.
{time} 1100
Mrs. McCARTHY. Mr. Speaker, I thank my colleague from Maryland for
doing such a wonderful job on handling this issue.
Let me first say something. The legislation in front of us, as far as
I am concerned, is frivolous. When we think about the millions and
millions of lawsuits that have been filed over the last 10 years, only
57 have actually involved the gun industry, 57, and for that we are
taking time up here in Congress.
We hear constantly that this is a good bipartisan bill, that over 200
of our Members, Republicans and Democrats, basically support this
legislation. May I remind many of my colleagues that the NRA has put
extraordinary pressure on Members, and certainly even in the States.
With that being said, there are people out there that need to protect
our victims, and they should be protecting our victims. My family went
through a terrible tragedy years ago, and it was because of gun
violence.
Now, they are saying that the gun industry has nothing to do with the
person that buys the gun. Well, I say they do have a purpose. We know
that the gun industry, when they ship the guns to gun dealers, and then
a gun is used in the commission of a crime, through the tracing it goes
back to the gun dealer to say that this store bought the gun from here.
They keep statistics on this. In New York State, over 60 percent of the
guns used in crime are traced back to the manufacturers.
With that being said, the majority of our gun stores are legitimate
owners. But again, 1 percent is causing over 60 percent of the harm in
this Nation. With this bill that is going to be passed today, and it
will be passed today and will be signed by the President, is not doing
any favor for the citizens of the United States.
Our courts are working, and they should continue to work. But again,
it comes down to where the victims should be allowed to have their day
in court. What we are doing to the gun industry is allowing them to
have a blanket, a blanket. My colleagues say that we can have our day
in court. The hoops that they will have to go through will make it near
impossible.
The States that have the right, through their attorneys general, to
sue the gun manufacturers should have their day in court. We are not
looking to put anyone out of business. We are not looking to take the
right of someone to own a gun, but the gun industry and these bad
dealers are costing this country over $100 billion in health care every
single year, and here we are going to give them blanket immunity.
I do not understand this. This is not common sense. This is not
protecting the American people. And when the American people and my gun
owners hear exactly what should be done, they agree with us. It is up
to the American people to have their voices heard.
I urge my colleagues to defeat this legislation. It is not good for
the American people, it is not good for the health care system.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman
from Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Speaker, I thank the chairman for yielding me this
time and I thank him and the gentleman from Florida (Mr. Stearns) for
their visionary leadership on this bipartisan legislation.
The right to keep and bear arms is enshrined in the second amendment
of the Constitution of the United States, and the Protection of Lawful
Commerce in Arms Act today will reaffirm our Nation's ability to keep,
bear, and
[[Page H8999]]
manufacture lawful firearms in the United States of America. By passing
this bill, Congress will prevent one or a few State courts from
bankrupting the national firearms industry with baseless lawsuits.
Mr. Speaker, a gun, by its very nature, is dangerous. But throughout
the history of tort law in this Nation, we have built on the principle
of individual responsibility in which a product may not be defined as
defective unless there is something wrong with the product, not with
the way that it is used. The progeny of cases that have emerged in
recent years against gun manufacturers flies in the face of both our
Constitution as well as the history of common law and its tradition.
It is time for Congress to fulfill its congressional duty, exercise
its authority under the commerce clause, and prevent a few State courts
from bankrupting our national firearms industry that has as its
foundation our constitutional right to keep and bear arms.
Mr. VAN HOLLEN. Mr. Speaker, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Meehan).
Mr. MEEHAN. Mr. Speaker, the gun industry would like to see this
legislation passed today so that they can protect their profits. But I
would like to talk about the real people who will be affected by this
bill, people who have suffered enough.
I would like to talk about a 26-year-old father of two from my home
State of Massachusetts whose death was a direct result of negligence by
a gun maker. Five years ago, Danny Guzman was leaving a holiday party
to go home to see his daughters, Tammy and Selena, but he never made it
home. Standing on the street, Danny Guzman was struck down by a stray
bullet fired from a 9 millimeter handgun. That gun that killed him made
its way into criminal hands because a gun factory employee had stolen
it from his workplace and sold it on the black market.
But this is no isolated incident. In that same year, over 25,000 guns
hit America's streets after being stolen or lost under suspicious
circumstances. And, according to court testimony in the case, stealing
guns happened at the plant ``all the time,'' and it happened all the
time because no system was in place to prevent theft. It happened all
the time because the gun company was negligent. And, in this particular
case, the employee got his job at the gun plant despite a criminal
record that included a history of drug abuse, theft, and violence.
Mr. Speaker, when big tobacco lied about the dangers of smoking, we
held them accountable. When the pharmaceutical industry markets
dangerous drugs, we hold them accountable, too. But what do we do when
gun makers and dealers ruin countless lives through their reckless
behavior, through their negligence? This House considers legislation to
provide them special protection and to deny gun victims and their
families the justice they deserve.
If this bill becomes law, the Guzman family in Massachusetts, in
addition to losing a husband, a son, and a father, will lose their
right of legal recourse and justice. It would be an unspeakably cruel
case of justice denied.
I strongly oppose this legislation and I urge my colleagues to do the
same. Businesses in the firearms industry do not deserve special
treatment under the law.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman
from Colorado (Mr. Salazar) who is always welcome on this side of the
aisle.
(Mr. SALAZAR asked and was given permission to revise and extend his
remarks.)
Mr. SALAZAR. Mr. Speaker, I thank the gentleman for yielding me this
time. I rise today in support of Senate bill 397, the Protection of
Lawful Commerce in Arms Act. I would like to thank the gentleman from
Florida (Mr. Stearns) and the gentleman from Wisconsin (Mr.
Sensenbrenner) and the Committee on the Judiciary for all their hard
work on this much-needed piece of legislation.
Mr. Speaker, I consider myself a strong supporter of the second
amendment to our Constitution and truly believe in the rights of
Americans to keep and bear arms.
For a long time, I have been very dismayed at the anti-gun lobby's
effort to litigate the gun industry to death. Taking gun manufacturers,
wholesalers, and distributors to court for the actions of criminals is
ludicrous. These are mostly small to medium-sized business owners who
cannot afford to pay lawyer fees to avoid lawsuits.
Senate bill 397 is a bipartisan effort to reform the civil liability
system to ensure that those who lawfully make and sell firearms cannot
be held liable for the misuse and criminal use of those firearms.
The current system is equivalent to someone stealing my Chevrolet
truck, committing a crime with it, and then GM being sued for millions
of dollars for their misdeeds. Now this, to me, is ridiculous. It is
time for Congress to derail the efforts of certain organizations whose
aim is to bankrupt the firearms industry through litigation.
I urge my colleagues on both sides of the aisle to join me in
supporting Senate bill 397, a commonsense measure to protect small
businesses and preserve the second amendment rights of American
citizens.
Mr. VAN HOLLEN. Mr. Speaker, I yield myself such time as I may
consume.
I want to address an issue we have not covered this morning, which
deals with the question of terrorists trying to get their hands on guns
in this country. We know from our reports and records that Osama bin
Laden and other terrorists have said to their terrorist network that
they can easily obtain weapons in the United States, and we know from a
government accountability study from January of this year that between
February 3 and June 20 of 2004, 35 known or suspected terrorists, those
are people who are on the terrorist watch list, purchased guns in the
United States, and that from July 1 through October 31 of last year 12
additional people on the terrorist watch list purchased guns in the
United States.
Now, I think many Americans would be surprised to know that you can
be on the terrorist watch list and you can go to the airport and try
and board an airplane, and because you are on the terrorist watch list,
we say no, we want to protect the public, we are not going to let you
board this airplane and compromise the safety of other passengers on
that plane. But that person can then get in their car at the airport,
go to their local gun store and buy as many semiautomatic weapons as
that terrorist wants. What is more, that person can walk into that gun
store and say, hey, guess what? I am on the terrorist watch list, and I
want 12 semiautomatic assault weapons, and under this bill, if we pass
it today, we could not hold that gun store owner liable in any way for
a wrongful sale.
How do I know that? We offered an amendment in committee. Very
simple. Let me read the language of the amendment. We said, we do not
want to except from lawsuits and liability a seller who knows that the
name of the person appears in the violent gang and terrorist
organization file maintained by the Attorney General and the person
subsequently used the qualified product, the weapon, in the commission
of a crime.
We had a vote in committee on this amendment. Every Republican member
of the committee voted no, every Democratic member of the committee
voted yes. The gentleman from California (Mr. Waxman) and I tried to
get through the Committee on Rules an amendment so the whole House
could consider this proposition. What did the Committee on Rules say?
No.
It seems to me outrageous that we would pass a bill that would allow
someone to walk into that gun store, the gun store owner knows that
person is on the terrorist watch list, they sell the person a gun, the
person goes out and murders people and, under this legislation, guess
what? You can no longer hold them liable. That is a shame.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds.
Mr. Speaker, the plain language of the bill says that the
hypothetical the gentleman from Maryland just talked about falls under
the negligent entrustment exemption from the bill, so a lawsuit could
proceed. Read the bill.
Mr. Speaker, I yield 2 minutes to the gentleman from Kentucky (Mr.
Davis).
Mr. DAVIS of Kentucky. Mr. Speaker, I am a lifetime member of the
National Rifle Association and a life-long shooting sports enthusiast.
I have been an outspoken supporter of second
[[Page H9000]]
amendment rights and strongly support the original intent of this bill.
I regret the legislation we are voting on today contains the Kohl-
Reed storage device amendment. We need to protect the firearms
industry, an industry I would like to remind my colleagues on the other
side of the aisle is responsible for arming our troops, our law
enforcement professionals, including the Capitol Police. But
responsible gun owners should not have further limits placed on their
second amendment rights. Unfortunately, it has become necessary to
enact legislation to protect responsible owners, manufacturers, and
sellers from frivolous liability lawsuits and criminals and others who
irresponsibly handle firearms.
The original legislation from the House had 257 cosponsors and the
original bill in the Senate, which did not contain the Kohl-Reed
amendment, had 62 cosponsors. I do not understand why then we are about
to pass a measure that is a compromise of the two bills that were
overwhelmingly supported by both Chambers.
Among the provisions of this amendment is a requirement of using
devices like a trigger lock to protect an individual from a release of
liability if a criminal should take their weapon. For example, trigger
locks can violate a fundamental safety rule of keeping everything out
of the trigger guard until ready to shoot. The very real safety hazard
is that the lock could actually depress the trigger as it enters the
trigger guard if the weapon is not cleared.
Having said that, though, I think it is very important and I urge my
colleagues to support the Protection of Lawful Commerce in Arms Act,
because we need to take immediate steps to protect the firearms
industry and manufacturers and responsible gun owners from the liberal
left's culture of frivolous litigation and to legislate by lawsuit.
{time} 1115
Mr. VAN HOLLEN. Mr. Speaker, I yield 2 minutes to the gentlewoman
from Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Speaker, let me mention that the
gentleman from Maryland (Mr. Van Hollen) has a long and prominent
history in knowing the laws of this Nation in his earlier life, and as
well rendering them in the proper manner.
And I want to follow the comments that you made about the amendments
offered in the committee, and as well make mention of the fact of the
kind of complete reckless, if you will, lacking of sensitivity, to
putting forward real balanced legislation.
In our dissenting views, the Democrats of this committee mentioned
courts around the country, and by the way, there are views about gun
safety across the aisle. But courts around the country have recognized
that precisely the types of cases that would be barred by this bill are
grounded in well-accepted legal principles, including negligence,
products liability and public nuisance.
These courts have held that those who make and sell guns, like all
others in society, are obligated to use reasonable care in selling and
designing their products and that they may be liable for foreseeable
injurious consequences.
The courts have answered this question. They have rejected frivolous
lawsuits. And those that have merit they have accepted. I offered an
amendment that would exempt from the scope of the bill any lawsuit
brought by a plaintiff who was harmed as a result of an unlawful
transfer of a machine gun, semi-automatic assault weapon, or large-
capacity ammunition feeding device.
These particular arms, illegal. And therefore the manufacturer does
have some liability in it. And this latest offering of the bill, the
gentlewoman from California (Ms. Zoe Lofgren) and myself offered a bill
that would exempt law enforcement officers.
This bill does not even exempt law enforcement officers. And even in
this climate of homeland security, it is well known that our first
responders need to be protected by the reckless use of machine guns and
AK-47s. And this legislation turns a blind eye to reality. It turns a
blind eye to the shooting of children. It turns a blind eye to the
sniper in Washington, to the Philadelphia mother.
I ask my colleagues to vote against this legislation. This is not the
second amendment. This is the NRA free legislation.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Virginia (Mr. Goodlatte).
Mr. GOODLATTE. Mr. Speaker, I rise in strong support of S. 397, the
Protection of Lawful Commerce in Arms Act, and thank the chairman of
the Judiciary Committee, the gentleman from Wisconsin, for bringing
this legislation forward.
The second amendment to the U.S. Constitution clearly declares that
the rights of citizens to keep and bear arms shall not be infringed.
Despite this fundamental protection, an extreme minority determined to
restrict the supply of firearms and firearms ownership has discovered a
new tool, frivolous lawsuits.
Recently, more than 30 cities and counties have filed lawsuits
against the firearms industry alleging that the industry is liable for
the actions of third parties, including those that use lawful firearms
in a criminal manner. Many legitimate firearms manufacturers could be
forced to go out of business due to the prohibitive costs of defending
these targeted lawsuits.
If the courts are so allowed to decide the fate of gun manufacturers,
then the trial lawyers and the courts will effectively be regulating
the supply of firearms and thus the right of citizens to bear arms.
However, legislatures, not courts, are the proper forums for deciding
the scope of regulation for the firearms industry. S. 397 would prevent
plaintiffs from bringing civil actions against firearm manufacturers
and sellers for the criminal or unlawful misuse of third parties of
properly made firearms. This bill will help to put an end to the
judiciary legislating in the firearms field.
It will also serve as an important statement that responsibility for
wrongdoing should rest with the wrongdoer. As Oliver Wendall Holmes
stated in an 1894 Harvard Law Review article: ``Why is not a man who
sells firearms answerable for assaults committed with pistols bought of
him since he must be taken to know the probability that sooner or later
someone will buy a pistol of him for some unlawful end?''
The principle seems to be pretty well established in this country, at
least, that everyone has a right to rely upon his fellow man acting
lawfully. Over 30 States have enacted legislation to prevent junk
lawsuits against the firearms industry based on the criminal behavior
of others. These States have thus declared that the responsibility for
wrongdoing should rest with wrongdoers. Congress should follow the
States' lead and pass S. 397.
The House has passed the Protection of Lawful Commerce in Arms Act on
several occasions. Now the Senate has passed it. We have a chance to
send this bill to the President of the United States.
I urge my colleagues to support this important legislation.
Mr. VAN HOLLEN. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I will include in the Record the following letters in
opposition to S. 397. Letters from the ABA, letters from two former
directors of the ATF, a letter from a number of nationally recognized
organizations, and letters from a number of law professors.
Mr. Speaker, a moment ago, I raised the scenario of a terrorist
getting denied access to an airplane because they are on the terrorist
watch list going down to a local gun shop and saying, You know, I am on
that watch list, can I get some guns? And under this legislation, that
individual would be allowed to purchase those guns.
I have read the bill, and that is why I offered the amendment in
committee. And what the bill says very clearly under negligent
entrustment is essentially if the gun dealer knows or should know that
the person to whom the product is supplied is likely to use the product
in a manner involving unreasonable risk of physical injury.
Now, we all might say common sense tells us that that would cover a
person on the terrorist watch list. But you know what, that is not what
the explanation was in committee. In fact, I have the committee
transcript here, and the gentleman from Utah (Mr. Cannon) stated that
the reason that
[[Page H9001]]
they did not want to adopt the amendment was not because the bill
already covered that scenario. The real reason was they have questions
about the reliability of the terrorist watch list and whether or not
someone who is on the terrorist watch list is legitimately put there.
Well, here is the question. If the terrorist watch list is good
enough to deny someone access to an airplane because that will put the
public safety at risk, why is it not good enough to deny someone a
firearm who goes down to the local gun store?
We have tried to make it a condition that people who are on the
terrorist watch list cannot purchase weapons at gun stores. The
Attorney General in testimony before our committee said maybe we should
think about that. We have not passed that as a Congress.
And so for the chairman of the committee to say that the gun store
owner will be assumed to know that person is a danger, when the United
States Congress and the Judiciary Committee have refused to make that
decision, it is just plain wrong. The Congress has not gone on record
saying that someone on the terrorist watch list should not get a gun.
Why should we expect a gun dealer and seller to do that?
So this does open a loophole that would allow exactly the scenario I
talked about.
It would close the door on lawsuits by the victims of the snipers in
this area. The letters I submitted for the Record from law professors
and others make it absolutely clear that that is what this does.
Look, we have got a system for bringing lawsuits. We heard from the
author of the bill, the gentleman from Florida (Mr. Stearns), a number
of cases that were filed that he said were frivolous. Most of those
cases were in fact dismissed from the courts.
The system is working. Frivolous lawsuits were dismissed. But what
this legislation would do is to change the rules. It does not have to
change the rules to protect the ones that were dismissed; they have
been dismissed under the existing rules. So why are we changing them?
Because we want to deny people who bring legitimate suits today, people
like the families of the sniper victims, people like the officers from
New Jersey, the police officers, who I must point out, again, and
emphasize obtained settlements in those lawsuits.
We want to close the courthouse door on them. I would just ask a very
simple question, Mr. Speaker, my colleagues. We have a bill here saying
we are going to protect the Lawful Commerce in Arms Act, which in fact
changes the rules to make what is today unlawful, lawful.
Why do we not go about the business of passing legislation to protect
the victims of gun violence rather than that small handful of bad-apple
gun dealers who wrongfully and negligently help put the guns in the
hands of killers in this country and allow them to go on the kind of
rampage that leads to the death of so many people.
The killers are in jail. Thank God for that. But why should someone
who is known to be negligent, who the ATF found to be negligent and
later closed the gun shop, why should that person not be liable for
their contribution to the negligence and to the deaths and sufferings
that were faced by those families? Let us get about protecting the
victims.
Mr. Speaker, the material I previously referred to is as follows:
American Bar Association,
Governmental Affairs Office,
Washington, DC, April 4, 2005.
Dear Senator: I am writing on behalf of the American Bar
Association to express our strong opposition to S.397, the
Protection of Lawful Commerce in Arms Act, and to similar
legislation to enact special tort laws for the firearms
industry. The ABA opposes S.397, and has opposed similar
legislation in the past two Congresses, because we believe
the proposed legislation is overbroad and would unwisely and
unnecessarily intrude into an area of traditional state
responsibility.
The responsibility for setting substantive legal standards
for tort actions in each state's courts, including standards
for negligence and product liability actions, has been the
province of state legislatures and an integral function of
state common law since our nation was founded. S.397 would
preempt state substantive law standards for most negligence
and product liability actions for this one industry,
abrogating state law in cases in which the defendant is a gun
manufacturer, gun seller or gun trade association, and would
insulate this new class of protected defendants from almost
all ordinary civil liability actions. In our view, the
legitimate concerns of some about the reach of a number of
suits filed by cities and state governmental units several
years ago have since been answered by the deliberative,
competent action of state courts and within the traditions of
state responsibility for administering tort law.
There is no evidence that federal legislation is needed or
justified. There is no hearing record in Congress or other
evidence to contradict the fact that the state courts are
handling their responsibilities competently in this area of
law. There is no data of any kind to support claims made by
the industry that it is incurring extraordinary costs due to
litigation, that it faces a significant number of suits, or
that current state law is in any way inadequate. The Senate
has not examined the underlying claims of the industry about
state tort cases, choosing not to hold a single hearing on
S.397 or its predecessor bills in the two previous
Congresses. Proponents of this legislation cannot, in fact,
point to a single court decision, final judgment or award
that has been paid out that supports their claims of a
``crisis''. All evidence points to the conclusion that state
legislatures and state courts have been and are actively
exercising their responsibilities in this area of law with
little apparent difficulty.
S. 397 proposes to exempt his one industry from state
negligence law. The proposed federal negligence law standard
will unfairly exempt firearms industry defendants from the
oldest principle of civil liability law: that persons, or
companies who act negligently should be accountable to
victims harmed by this failure of responsibility. Negligence
laws in all 50 states traditionally impose civil liability
when individuals or businesses fail to use reasonable care to
minimize the foreseeable risk that others will be injured and
injury results. But this proposed legislation would preempt
the laws of the 50 states to create a special, higher
standard for negligence actions for this one protected class,
different than for any other industry, protecting them from
liability for their own negligence in all but extremely
narrow specified exceptions. The ABA believes that state law
standards for negligence and its legal bedrock duty of
reasonable care should remain the standard for gun industry
accountability in state civil courts, as these state
standards for the rest of our nation's individuals,
businesses and industries.
The proposed federal product liability standards will
unfairly insulate firearm industry defendants from
accountability in state courts for design defects in their
products. The proposed new federal standard would preempt the
product liability laws in all 50 states with a new, higher
standard that would protect this industry even for failing to
implement safety devices that would prevent common,
foreseeable injuries, so long as any injury or death suffered
by victims resulted when the gun was not ``used as
intended''.
Under existing product liability laws in most states,
manufacturers must adopt feasible safety devices that would
prevent injuries caused when their products are foreseeably
misused, regardless of whether the uses are ``intended'' by
the manufacturer, or whether the product ``fails'' or
``improperly'' functions. Thus automakers have been held
civilly liable for not making cars crashworthy, even though
the ``intended use'' is not to crash the car. Manufacturers
of cigarette lighters must make them childproof, even though
children are not ``intended'' to use them. Under this
proposed legislation, however, state laws would be preempted
so that gun manufacturers would enjoy a special immunity.
Enactment of S. 397 would also undermine responsible
federal oversight of consumer safety. The broad and, we
believe, unprecedented immunity from civil liability that
would result from enactment of S. 397 must be viewed against
the existing legal backdrop of the present, unparalleled
immunity the firearms industry enjoys from any federal safety
regulation. Unlike other consumer products, there is no
federal law or regulatory authority that sets minimum safety
standards for domestically manufactured firearms. This is
because the firearms industry was able to gain an exemption
for firearms from the 1972-enacted Consumer Product Safety
Act, the primary federal law that protects consumers from
products that present unreasonable risk of injury. Over the
last 30 years, an average of 200 children under the age of 14
and over a thousand adults each year have died in gun
accidents which might have been prevented by existing but
unused safety technologies. A 1991 Government Accounting
Office report estimated that 31 percent of U.S. children's
accidental firearm deaths could have been prevented by the
addition of two simple existing devices to firearms: trigger
locks and load-indicator devices. Sadly, these minimal safety
features are still not required.
This bill, if enacted, would insulate the firearms industry
from almost all civil actions, in addition to its existing
protection from any consumer product safety regulations. Such
special status for this single industry raises serious
concerns about its constitutionality; victims of gun violence
have the right--as do persons injured through negligence of
any party--to the equal protection of the law.
The risk that states may at some future date fail to
appropriately resolve their tort
[[Page H9002]]
responsibilities in an area of law--where there is no
evidence of any failure to date--cannot justify the
unprecedented federal preemption of state responsibilities
proposed in this legislation. The ABA believes that the
states will continue to sort out these issues capably without
a federal rewriting of state substantive tort law standards.
The wiser course for Congress, we believe, is to respect the
ability of states to continue to administer their historic
responsibility to define the negligence and product liability
standards to be used in their state courts. For these
reasons, we urge you to reject S. 397.
Sincerely,
Robert D. Evans.
____
Dear Senators and Representatives: The undersigned former
Directors of the Bureau of Alcohol, Tobacco, and Firearms
(``ATF'') write to express our grave concern over pending
legislation that the Congress is now considering. S. 397 and
H.R. 800 would provide sweeping immunity to members of the
gun industry in numerous cases. While there are many
disturbing aspects to this bill from a policy perspective,
this letter concerns one that is especially disturbing to us,
as it threatens ATF's ability to fully and effectively
enforce our nation's gun laws.
Supporters of gun industry immunity have added language to
S. 397 and H.R. 800 that was not included in the gun immunity
bills considered by the last Congress (H.R. 2037, S. 659, S.
1805, and S. 1806). This new language includes provisions
that threaten to block law enforcement efforts by the ATF, as
well as state governments. Specifically, the legislation
would now prohibit certain law enforcement ``administrative
proceeding(s).'' Sec. 4(5)(A). This goes well beyond barring
civil damages suits, and is apparently intended to curtail
law enforcement proceedings against gun sellers who violate
the law. Given the serious and persistent danger posed to
society by irresponsible gun sellers who supply the criminal
gun market and other prohibited purchasers, we find it
outrageous that Congress would contemplate tying the hands of
law enforcement to protect scofflaw dealers.
This broad new language threatens to block any ATF
``administrative proceeding'' that seeks ``fines, or
penalties, or other relief'' resulting from unlawful use of
firearms by third parties. Sec. 4(5)(A). The bill would
likely prohibit ATF from initiating enforcement proceedings
including those to:
Prohibit ATF from initiating proceedings to revoke a gun
dealer's federal firearm license if the dealer supplies guns
to criminals or other prohibited buyers. Current law enables
ATF to initiate proceedings to revoke a federal firearm
license if a gun dealer willfully violates federal law, such
as by transferring a gun to a criminal. 18 U.S.C.
Sec. 923(e).
Limit ATF's ability to prevent the importation of non-
sporting firearms used frequently in crimes. Current law
enables ATF to initiate proceedings to prohibit the
importation of firearms that do not have a ``sporting
purpose.'' 18 U.S.C. Sec. 925(d)(3).
We know from experience how important it is that ATF be
able to enforce our nation's gun laws to prevent firearms
from being obtained by terrorists, other criminals, and the
gun traffickers who supply them. To protect our citizens from
the scourge of gun violence Congress should be strengthening
our laws and increasing ATF's resources and ability to
enforce those laws. To handcuff ATF, as this bill does, will
only serve to shield corrupt gun sellers, and facilitate
criminals and terrorists who seek to wreak havoc with deadly
weapons. To take such anti-law enforcement actions in the
post-9/11 age, when we know that suspected terrorists are
obtaining firearms, and may well seek them from irresponsible
gun dealers, is nothing short of madness.
The bill also would likely limit the ability of state
attorneys general to bring actions against gun sellers who
violate state law, such as those who engage in ``straw
sales'' to someone who illegally buys guns on behalf of
prohibited buyers. Had this bill been the law, California may
not have been able to levy the $14.5 million fines Wal-Mart
recently paid to settle a civil suit brought by the
California Attorney General concerning numerous violations of
state law, including sales to straw buyers. The bill would
also jeopardize state and local law enforcement proceedings
to shut down ``kitchen table'' dealers who sell guns out of
their homes to criminals.
In closing, we would note that many of us have other
reservations as well about substantive aspects of S. 397/H.R.
800. But even without those troublesome aspects, the
restrictions placed on law enforcement should be reason
enough for Congress to reject this dangerous legislation. We
urge Congress to reject S. 397 and H.R. 800.
Stephen Higgins,
Director (Ret.) ATF, 1982-1995.
Rex Davis,
Director (Ret.) ATF, 1970-1978.
____
Dear Member of Congress: Please oppose any legislation that
would limit the legal rights of gun violence victims.
The National Rifle Association and others in the gun lobby
are pushing legislation that would deprive gun violence
victims of their legal rights and give special legal
privileges to the gun industry (House bill H.R. 800 and
Senate bill S. 397).
Similar legislation was defeated in the last Congress, and
it must be stopped again in the 109th Congress.
Recently, gun violence victims have exercised their legal
rights and held reckless and irresponsible gun sellers
accountable:
Families of victims of the 2002 D.C.-area sniper attacks
won a $2.5 million settlement from Bull's Eye Shooter Supply,
the dealer who ``lost'' the snipers' assault rifle, and
Bushmaster Firearms, the assault weapon maker who supplied
Bull's Eye, while turning a blind eye to its disgraceful
record of missing guns and regulatory violations. Further, as
part of the settlement, Bushmaster agreed to inform its
dealers of safer sales practices that will prevent other
criminals from obtaining guns--something Bushmaster had never
done before.
Two former New Jersey police officers, Ken McGuire and Dave
Lemongello, shot in the line of duty with a trafficked gun
negligently sold by a West Virginia dealer, won a $1 million
settlement. The dealer had sold the gun, along with 11 other
handguns, in a cash sale to what turned out to be a straw
purchasing team. After the lawsuit, the dealer, as well as
two other area pawnshops, implemented safer practices to
prevent sales to traffickers, including a new policy of
ending large-volume sales of handguns. These reforms go
beyond the law and are not imposed by any manufacturers or
distributors.
If the NRA's special interest legislation had passed
Congress, these victims would never have obtained justice and
it would be business as usual for these dangerous gun
sellers.
Instead of trying to close the courthouse doors to victims,
Congress should be investigating the gun industry, cracking
down on the corrupt dealers who arm drug gangs and other
criminals, and passing stronger laws to stop gun deaths.
Please protect gun violence victims and OPPOSE any Immunity
legislation (H.R. 800/S. 397) that would deprive them of
their legal rights.
Sincerely,
national groups
Alliance for Justice.
American Association of School Psychologists.
American Association of Suicidology.
Americans for Democratic Action.
American Humanist Association.
American Public Health Association.
Brady Campaign To Prevent Gun Violence United With the
Million Mom March.
Child Welfare League of America.
Children's Defense Fund.
Church Women United.
Coalition To Stop Gun Violence.
Common Cause.
Congregation of Sisters of St. Agnes Leadership Team.
Consumer Federation of America.
Consumers for Auto Reliability and Safety.
Disciples Justice Action Network.
Equal Partners in Faith.
Evangelical Lutheran Church in America.
Hadassah The Women's Zionist Organization Of America.
HELP Network.
League of Women Voters of the U.S.
Legal Community Against Violence.
National Council of Jewish Women.
National Council of Women's Organization.
National Research Center for Women & Families.
Physicians for Social Responsibility.
Presbyterian Church (USA).
Public Citizen.
Religious Action Center of Reform Judaism.
States United to Prevent Gun Violence.
The American Jewish Committee.
The Ms. Foundation for Women.
The Society of Public Health Education (SOPHE).
The United States Conference of Mayors.
Unitarian Universalist Association of Congregations.
Veteran Feminists of America.
Women's Institute for Freedom of the Press.
State/Local Organizations
Arizona
Physicians for Social Responsibility--Arizona Chapter
Arkansas
Arkansas Coalition Against Domestic Violence.
California
Khadafy Foundation for Non-Violence.
Concerned Citizens of Leisure World.
Sisters of Saint Joseph of Orange.
Physicians for Social Responsibility.
Marin Friends Meeting.
Orange County Substance Abuse Prevention Network.
Youth Alive.
Gray Panthers.
Society of Public Health Education.
Physicians for Social Responsibility--Sacramento.
Orange County Citizens for the Prevention Of Gun Violence.
Violence Prevention Coalition of Orange County.
Women Against Gun Violence.
Long Beach Coalition for the Prevention of Gun Violence.
Alameda County Million Mom March Chapter.
Contra Costa County Million Mom March Chapter.
Los Angeles County West Million Mom March Chapter.
Marin County Million Mom March Chapter Napa.
[[Page H9003]]
Solano County Million Mom March Chapter.
Nevada County Million Mom March Chapter.
Orange County Million Mom March Chapter.
Sacramento Valley Million Mom March Chapter.
San Diego County Million Mom March Chapter.
San Fernando Valley Million Mom March Chapter.
Santa Clarita Million Mom March Chapter.
Silicon Valley/Santa Clara County Million Mom March
Chapter.
Sonoma County Million Mom March Chapter.
South Bay/Long Beach Million Mom March Chapter.
Colorado
Colorado Progressive Coalition.
Physicians for Social Responsibility--Colorado Chapter.
Colorado Ceasefire Capitol Fund.
Denver Million Mom March Chapter.
Connecticut
Hog River Music, LLC.
Society of Public Health Education.
Greater New Haven N.O.W.
New England Coalition To Prevent Gun Violence.
Central Connecticut Million Mom March Chapter.
Fairfield County Million Mom March Chapter.
District of Columbia
STARS.
R.O.O.T.
Life After Homicide.
Society of Public Health Education--National Capitol Area
Chapter.
District of Columbia Million Mom March Chapter.
Florida
IRC Coalition Against Gun Violence.
Florida Coalition to Stop Gun Violence.
Vero Beach Coalition against Gun Violence.
Central Florida Million Mom March Chapter.
Northeast Florida Million Mom March Chapter.
South Florida Million Mom March Chapter.
Tampa Bay Million Mom March Chapter.
Georgia
American Public Health Association.
Georgia Federation of Professional Health Education.
Metro Atlanta Million Mom March Chapter.
Illinois
Citizens Resource for Children.
Episcopal Peace Fellowship Chicago Consumer Coalition.
Chicago Survivors Million Mom March Chapter.
North Suburban Chicagoland Million Mom March Chapter.
Southwest Chicagoland Million Mom March Chapter.
Springfield Million Mom March Chapter.
Indiana
Hispanic/African American Public Policy Institute.
Infinite Inc.
Hoosiers Concerned About Gun Violence.
Iowa
University of Iowa CPH/CBH.
Iowans for the Prevention of Gun Violence.
Kentucky
Lexington and Central Kentucky Million Mom March Chapter.
Maine
Action Committee of Peace Action.
Maine Citizens Against Handgun Violence.
New England Coalition To Prevent Gun Violence.
Southern Maine Million Mom March Chapter.
Maryland
Life After Homicide.
Maryland Consumer Rights Coalition, Inc.
Ceasefire Maryland.
Montgomery County Million Mom March Chapter.
Massachusetts
The Sandbox Foundation.
Stop Handgun Violence.
Greater Boston Million Mom March Chapter.
Massachusetts's Consumers' Coalition.
New England Coalition To Prevent Gun Violence.
Michigan
League of Women Voters of Michigan.
Michigan Partnership to Prevent Gun Violence.
Detroit Million Mom March Chapter.
East Metro Detroit Million Mom March Chapter.
Mid-Michigan/Lansing Million Mom March Chapter.
Novi Million Mom March Chapter.
Southwest Michigan Million Mom March Chapter.
West Metro Detroit/Washtenaw County Million Mom March
Chapter.
Minnesota
Citizens for a Safer Minnesota.
The Healing Circle.
League Of Women Voters of Duluth.
Northland Minnesota Million Mom March Chapter.
Twin Cities Million Mom March Chapter.
Missouri
Missouri Society for Public Health Education.
Nevada
XPOZ.
New Hampshire
New Hampshire Million Mom March Chapter.
New England Coalition To Prevent Gun Violence.
New Jersey
Union for Reform Judaism, NJWHVC.
Woodbridge Homeowners for Quality of Life.
Coalition For Peace Action.
Society of Public Health Education.
Ceasefire NJ.
Bergen/Passaic County Million Mom March Chapter.
Essex County Million Mom March Chapter.
Mercer County Million Mom March Chapter.
Shore County Million Mom March Chapter.
New York
Men Elevating Leadership.
Mothers Against Guns, Inc.
NY Chapter of the Society for Public Health Education.
New Yorkers Against Gun Violence (NA YGV).
Lenox Hill School Based Primary Care Program.
New York Public Interest Research Group.
Brooklyn King's Million Mom March Chapter.
Broome County Million Mom March Chapter.
Capitol Region Million Mom March Chapter.
Manhattan Million Mom March Chapter.
Nassau County Million Mom March Chapter.
Queens Million Mom March Chapter.
Suffolk County Million Mom March Chapter.
Westchester County Million Mom March Chapter.
North Carolina
North Carolinians Against Gun Violence.
Forsyth Mothers And Others Million Mom March Chapter.
Wake County Million Mom March Chapter.
West Triangle Million Mom March Chapter.
Ohio
Women Against Gun Violence.
Inter-religious Partners in Action of Greater Cleveland.
Diocesan Social Action Office of Cleveland.
Ohio Coalition Against Gun Violence.
Cleveland Million Mom March Chapter.
Greater Cincinnati Million Mom March Chapter.
Oklahoma
Oklahomans For Gun Safety Million Mom March Chapter.
University of Oklahoma.
Oregon
Oregon Consumer League.
Ceasefire Oregon.
Physicians for Social Responsibility--Oregon.
Lane County (Eugene) Million Mom March Chapter.
Multnomah County (Portland) Million Mom March Chapter.
Pennsylvania
Not Fair!
Ceasefire Pennsylvania.
Allegheny County Million Mom March Chapter.
Center County Million Mom March Chapter.
Montgomery and Delaware County Million Mom March Chapter.
Philadelphia Million Mom March Chapter.
Rhode Island
Rhode Island Million Mom March Chapter.
New England Coalition To Prevent Gun Violence.
Texas
Austin Physicians for Social Responsibility.
Central Texas (Austin) Million Mom March Chapter.
Dallas Million Mom March Chapter.
South Texas Million Mom March Chapter.
Utah
Peace and Justice Commission of Salt Lake Catholic Diocese.
Gun Violence Prevention Campaign of Utah.
Salt Lake City Million Mom March Chapter.
Vermont
New England Coalition To Prevent Gun Violence.
Virginia
VA Interfaith Center for Public Policy.
Charlottesville Million Mom March Chapter.
Hampton Roads Million Mom March Chapter.
Northern Virginia Million Mom March Chapter.
Richmond Million Mom March Chapter.
Roanoke Million Mom March Chapter.
Washington
Clark County (Vancouver) Million Mom March Chapter.
Wisconsin
Mothers Against Gun Violence.
Peace and Justice Committee of the ELCA of Greater
Milwaukee.
[[Page H9004]]
Milwaukee Million Mom March Chapter.
Wisconsin Anti-Violence Effort.
____
The University of Michigan
Law School,
Ann Arbor, MI.
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:
``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 comer, 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; 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
[[Page H9005]]
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. LiFrance, 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.
Peters, 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. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, a gun by its very nature must be dangerous. So may an
automobile or a knife, or a piece of machinery that does not work
properly. There are a lot of dangerous things that we as human beings
utilize; and if they work properly, they can be utilized for something
that is good and something that is lawful.
Tort law, however, rests upon a foundation of individual
responsibility, in which the product may not be defined as defective
unless there is something wrong with the product, rather than with the
product's user.
And what this bill attempts to do is to get tort law back to its
original moorings where the manufacturer of the product that is not
defective in its nature is not legally liable for the criminal misuse
of that product by its user.
That is what the issue is before the House today in consideration of
S. 397. Now, S. 397 while preventing frivolous and abusive lawsuits
also ensures that bad actors can continue to be sued.
The bill allows the following types of lawsuits to be filed: first,
an action against a person who transfers a firearm or ammunition
knowing that it will be used to commit a crime of violence or drug-
trafficking crime or a comparable or identical State felony law;
Second, an action brought against the seller for negligent
entrustment or negligence, per se;
Third, actions in which a manufacturer or seller of a qualified
product violates a State or Federal statute applicable to the sales or
marketing when such violation was the proximate cause of the harm for
which the relief is sought. And this exception would specifically allow
lawsuits against firearms dealers such as the dealer whose firearm
ended up in the hands of the D.C. snipers and those who fail to
maintain the required inventory lists necessary to ensure they are
alerted to any firearms theft;
Fourth, actions for breach of contact or warranty in connection with
the purchase of a firearm or ammunition, and actions for damages
resulting directly from a defect in design or manufacture of a firearm
or ammunition.
This is a carefully crafted bill. It provides immunity for people who
have not done anything wrong, even thought their products may be used
in a criminal nature; but it does allow lawsuits to proceed against the
bad actors.
It ought to be passed. I am sure it will be passed, and finally we
can lay this issue to rest after 6 years of debate. I urge the Members
to support this legislation, to send it to the President for his
signature, and then we can move on.
Mr. HONDA. Mr. Speaker, I rise today to express my concern over S.
397, the Protection of Lawful Commerce in Arms Act. The safe and lawful
use of firearms is very important to me. When I was in the California
State Assembly, I chaired the Public Safety Committee where I worked to
pass sensible gun safety legislation and I have voted to ban assault
weapons. I firmly believe we must pass sensible gun laws for the safety
of all.
The measure on the House floor today is intended to protect a
manufacturer or seller of a firearm, from any legal liability stemming
from the criminal or unlawful misuse of that firearm. The legislation
also requires the immediate dismissal of pending lawsuits, even cases
in which a court has found the suit to be meritorious. I fear this bill
will deny justice to innocent victims of gun violence, and therefore I
will oppose it.
In recent years, dozens of individuals and municipalities have filed
lawsuits against gun manufacturers for damages caused by gun violence.
Such suits typically contend that gun makers knowingly provide weapons
to irresponsible gun dealers, who then take advantage of gun sale
loopholes to sell weapons to criminals. Some of these lawsuits by
victims of gun violence have begun to expose how the gun industry's
reckless, though not always technically criminal, sales tactics supply
criminals with weapons.
The gun lobby argues that S. 397 prohibits ``frivolous'' lawsuits,
while allowing ``legitimate'' cases to proceed through the legal
system. However, many legal experts confirm that this bill would give
the gun industry sweeping immunity that no other industry has, and
would bar many meritorious cases brought by victims of gun violence
injured or killed by negligent gun sellers and manufacturers. The bill
would even restrict many cases in which a product defect is at issue.
S. 397 seeks to provide sweeping legal immunity to an industry that
already enjoys exemptions from Federal health and safety regulations.
It would dramatically re-write liability law for the direct benefit of
a single industry.
Furthermore, lawsuits brought on behalf of officers injured or killed
in the line of duty by guns negligently sold by dealers, would be
barred. If immunity for the gun industry is enacted, police officers
who put their lives on the line every day to protect the public would
have no legal recourse when they are harmed due to another's
negligence.
Mr. Speaker, we should not be providing this blanket immunity to the
gun industry and I therefore oppose this measure.
Mr. HOYER. Mr. Speaker, I do not believe that manufacturers or
sellers of weapons should be liable for injuries, which result from the
use of their products in criminal ways, simply because they produce and
distribute their products.
The manufacture, distribution and sale of firearms is legal in our
Nation. And unless a manufacturer or seller of arms acts in some
wrongful or criminal way, holding them liable effectively as insurers--
I believe is inappropriate and probably a violator of the
Constitution's Commerce Clause.
For example, I believe that the lawsuit pending in Federal court
between the District of Columbia and Beretta and other gun
manufacturers is an example of a claim that would effectively make gun
manufacturers insurers for wrongful conduct. I expect the manufacturers
to prevail in that case.
However, the bill before us goes beyond this premise, and overreaches
in key respects.
First, I oppose the ``look back'' provision in this bill that
requires the immediate dismissal of civil liability lawsuits against
gun manufacturers that are pending on the date of enactment.
As a matter of principle and as a matter of policy, I do not believe
that Congress should pass legislation that interferes with on-going
civil lawsuits. This is tantamount to changing the rules in the middle
of the game, and I generally believe this approach is inappropriate.
[[Page H9006]]
And second, I am troubled that, as the American Bar Association has
pointed out, the legislation would preempt State product liability laws
with a new, higher standard that would protect the gun industry even if
it failed to implement safety devices that would prevent foreseeable
injuries, so long as an injury or death suffered by a victim resulted
when the gun was not ``used as intended.''
Today, manufacturers must adopt feasible safety devices that would
prevent injuries caused when their products are foreseeably misused,
regardless of whether the uses are ``intended'' by the manufacturer, or
whether the product ``fails'' or ``improperly'' functions.
If perfected, I might well have voted for this bill. However, no
amendments were allowed by the Republican Majority to answer the
concerns I have expressed. Therefore, I will vote ``no.''
Mr. PAUL. Mr. Speaker, while I sympathize with the original objective
of S. 397, the Protection of Lawful Commerce in Arms Act, I am forced
to oppose this legislation primarily because of unconstitutional gun
control amendments added to the bill in the Senate.
As a firm believer in the Second Amendment to the United States
Constitution and an opponent of all Federal gun laws, I cannot support
a bill that imposes new, unconstitutional gun controls on Americans. I
believe that the Second Amendment is one of the foundations of our
constitutional liberties. In fact, I have introduced legislation, the
Second Amendment Protection Act (H.R. 1703), which repeals misguided
Federal gun control laws such as the Brady Bill.
Senate amendments added two sections to S. 397 that impose
unconstitutional controls on American gun owners and sellers.
First, a section was added to the bill to outlaw any licensed gun
importer, manufacturer, or dealer from selling, delivering, or
transferring a handgun without a ``secure gun storage or safety
device.'' Each and any violation of this requirement can result in a
person being fined up to $2,500 or having his license revoked. This gun
lock requirement amounts to the imposition of a new Federal tax on each
handgun sale because gun buyers will be forced to pay the cost of the
``secure gun storage or safety device'' that is required with a
handgun, irrespective of if that device is desired. Further, the severe
penalties for noncompliance--whether intentional or accidental--add yet
more weight to the crippling regulations that hang over gun
transactions in the United States.
Second, a section was added to the bill to create draconian penalties
for people who possess ``armor piercing'' bullets. Just like the
Democratic Congress before it that passed the ``assault weapons'' ban,
the Republican Congress is poised to give in to anti-gun rights scare
tactics by selectively banning bullets. Instead of each gun owner being
able to decide what ammunition he uses in his gun, Federal bureaucrats
will make that decision. To recognize the threat such regulation places
on gun owners, just consider that a gun without ammunition is nothing
more than an expensive club. Regulating ammunition is the back door
path to gun regulation.
The ``armor piercing'' bullets restriction imposes a 15 years
mandatory minimum sentence for just carrying or possessing such
bullets--even without a gun--during or in ``relation to'' a crime of
violence or drug trafficking. Given the wide scope of criminal laws and
the fact that people are on occasion accused of crimes they did not
commit, this provision promises to discourage many non-violent, law-
abiding individuals from possessing ammunition protected under the
Second Amendment. Further, it does not take much imagination to see how
such a provision could be used by an anti-gun prosecutor in the
prosecution of an individual who used a gun in self defense, especially
considering that use of such bullets to murder can result in a death
sentence. In such instances, a defendant who exercised self defense may
well accept a guilty plea bargain to avoid the severe enhanced
penalties imposed under S. 397.
I am particularly disturbed that the House of Representatives'
leadership has taken the unusual step of bringing S. 397 to the floor
for a vote without House members at least having an opportunity to vote
on removing the gun control amendments. Instead of voting on a bill
that contains the new gun control provisions, we should be considering
H.R. 800, the House version of S. 397 prior to its perversion by gun
control amendments. Notably, Gun Owners of America has written to House
members to request that they oppose S. 397 and, instead, support H.R.
800. Last month, I wrote to House Speaker Dennis Hastert, Majority
Leader Tom DeLay, and Committee on the Judiciary Chairman James
Sensenbrenner of my opposition to these anti-gun rights provisions in
S. 397. While I am concerned about some of the federalism implications
of H.R. 800, it is a far superior bill because it neither requires gun
locks nor restricts gun owners' ammunition choices.
With 258 sponsors and cosponsors, H.R. 800 would easily pass the
House. The House voting for H.R. 800 would allow the differences
between H.R. 800 and S. 397 to be reconciled in conference committee.
In conference, every expectation would be that the new gun control
provisions would be stripped from the legislation given that the
original, unamended S. 397 had 62 Senate sponsors and cosponsors--a
filibuster proof majority--in the Senate.
I regret that, under the guise of helping gun owners, the House of
Representatives is today considering imposing new unconstitutional gun
controls. I, thus, must oppose S. 397.
Mrs. CUBIN. Mr. Speaker, I hail from a State that respects the
fundamental, individual right to own firearms granted to all Americans
by the Second Amendment. This right, so essential to our liberty, is
under assault by legal teams bent on destroying the firearms industry.
They have tried and failed to accomplish this in the People's House
and in State legislatures. Now they are using our courts, filing
lawsuits with no legal merit, yet still incurring tremendous legal
expense.
These lawsuits rest on the misguided notion that those in the firearm
industry are liable for the criminal misuse of their products. This is
a dangerous precedent. It makes as much sense as suing car
manufacturers for damage, injury or death caused by car thieves or joy
riders.
It is important to every firearm owner in the State of Wyoming that
these lawsuits stop. If allowed to continue, firearms could become
unavailable and unaffordable to the law-abiding citizen. The Protection
of Lawful Commerce in Arms Act will stop these lawsuits, while
protecting causes of action based on negligence, defective product and
other valid claims.
I ask my colleagues to pass this legislation. By doing so, we stand
up for the constitutional right of law-abiding Americans to protect
themselves, their homes, and their families.
Ms. KILPATRICK of Michigan. Mr. Speaker, I rise in opposition to S.
397, the Protection of Lawful Commerce in Arms Act. My opposition to
the measure is based on my belief that it is overly expansive and
overarching. This bill prohibits civil liability lawsuits against gun
manufacturers from being brought in Federal or State court.
My congressional district is beset by gun violence. I believe that
gun owners, manufacturers and dealers must assume responsibility for
the wanton gun violence that is being perpetrated as result of the
willful neglect of gun dealers who cast blind eyes to illegal and
irresponsible gun sales to minors, felons and potential terrorists. It
appears to me that we are unwisely and gratuitously insulating gun
manufacturers from bona fide civil lawsuits.
This bill protects gun manufacturers but does absolutely nothing to
protect innocent victims of gun violence. I am also concerned that we
have prohibited suits from being brought in both Federal and State
courts and that police officers shot in the line of duty are barred
from filing lawsuits. For the families of fallen offices, their only
recourse to obtain compensation for the loss of their loved one is
through the civil lawsuit process.
I contend that it is vital to preserve the right of citizens to seek
redress through civil lawsuits for any harm they experience by virtue
of the neglect and irresponsibility of gun manufacturers and dealers. I
urge my colleagues to vote, ``no'' on S. 397, and to support the rights
of potential victims of gun violence.
Mr. BRADLEY of New Hampshire. Mr. Speaker, I rise today in support of
The Protection of Lawful Commerce in Arms Act. It is critical that the
House once again pass this legislation in order to reduce the burden of
unsubstantiated lawsuits and the infringement on our Second Amendment
rights.
When crimes are committed by a person using a firearm, I support
tough sentencing guidelines as well as full and vigorous enforcement of
all applicable laws. We must focus on the perpetrators of the crime,
rather than frivolous lawsuits directed at gun manufacturers which will
only restrict the rights of lawabiding citizens.
The State of New Hampshire has a long history of protecting
individual rights and liberties. For millions of Americans, and the
many citizens of New Hampshire, firearms provide protection for
individuals and their families. I stand in support of this legislation
and I will work to see that the Second Amendment right of our citizens
to protect themselves will not be infringed upon.
Mr. GRAVES. Mr. Speaker, I rise today in support of the Protection of
Lawful Commerce in Arms Act.
Over the last few years, trial lawyers have filed suit against
firearms manufacturers across the country in the hopes of bankrupting
the industry. These frivolous lawsuits are often based on the dubious
premise that gun manufacturers should be held liable for the actions of
others who use their products in a criminal or unlawful manner.
This abuse of the legal process demands strong Congressional action,
and we are responding with this legislation. This bill will protect the
firearms industry from lawsuits based
[[Page H9007]]
on the criminal or unlawful third-party misuse of their products. This
law is necessary to prevent a few state courts from undermining our
Second Amendment rights guaranteed by the Constitution. Contrary to
many rumors, this bill will not prevent legitimate victims from having
their day in court for cases involving defective firearms, breaches of
contract, criminal behavior by a gun maker or dealer, or the negligent
entrustment of a firearm to an irresponsible person.
Mr. Speaker, while I have serious concerns about the trigger lock
language added to this bill in the Senate, the Protection of Lawful
Commerce in Arms Act is an important step in the right direction. The
reality is that we need a bill to be signed into law, and this is our
greatest opportunity to accomplish meaningful reform which benefits all
lawful gun owners and enthusiasts. These irresponsible lawsuits
seriously threaten the supply of guns and ammunition available for
hunting, self-defense, collecting, competitive or recreational
shooting, and other lawful activities, and it is time to put a stop to
them.
Mr. STARK. Mr. Speaker, I rise in opposition to the so-called
Protection of Lawful Commerce in Arms Act because I don't believe that
giving gun makers, gun dealers, and gun trade associations special
exemption from lawsuits makes our streets any safer.
If this law had been in place, the families of victims of the DC-area
sniper could never have held negligent suppliers accountable. In
September 2004, eight victims received a settlement from the dealer
that ``lost'' the snipers' assault rifle from its inventory, along with
at least 238 other guns. The victims' families also received a
settlement from the manufacturer who negligently supplied the dealer
despite its record of missing guns and regulatory violations. Most
importantly, as part of the settlement, the manufacturer agreed to
instruct its dealers of safer sales practices that should prevent other
criminals from obtaining guns.
Since the National Rifle Association owns about two-thirds of the
Congress, guns have fewer safety regulations than teddy bears. The
American people can't look to Congress to protect them, so they have no
choice but to turn to the courts. It's no surprise that this last
resort will now be shut down out of deference to the almighty gun
industry.
As if this blatant pandering to an industry responsible for
widespread violence and mayhem isn't bad enough, this bill also
violates the fundamental right of every American to have their day in
court. As soon as the President signs this bill into law, Americans
will be able to sue the manufacturer of any product except for guns for
death, injury, and any other kind of negligence. Congress, at the
behest of the NRA, will close the courthouse doors to gun victims.
I vote ``no'' on this bill because no industry, certainly not the gun
industry, should have the right to conduct their business without the
oversight of the judicial system.
Mr. DAVIS of Illinois. Mr. Speaker, I rise today in opposition to S.
397, the Protection of Lawful Commerce in Arms Act. This resolution
immunizes the gun industry--including manufacturers, distributors,
dealers, or importers of firearms and ammunitions--from civil liability
arising from the criminal and unlawful misuse of their products.
Advocates of this bill believe that it is necessary to pass in order to
prevent the rise of ``frivolous'' lawsuits against companies that
manufacture and distribute firearms. Advocates say, the Second
Amendment of the Constitution protects the rights of these companies to
irresponsibly sell their products without any repercussions for the
misuse of their product. I believe there is a delicate balance between
the right to bear arms, a right provided by the Constitution, and the
need to prevent gun violence. This bill, if passed into law, will
unfairly shift the balance. Through the laws vested in the
Constitution, every American has been given the responsibility to keep
and bear arms, but this resolution will dismantle all progress that has
been made toward the fight against crime.
Each year more than 30,000 gun-related deaths occur; a third of these
30,000 deaths are committed with malicious ``intent by customers of the
arms industry who exploit their Second Amendment Right. Since 2000, we
have witnessed a 9 percent increase in gun-related homicides. In 2003,
firearms were used in over 365,000 cases of violent crime. Fifty
percent of all the African American youngsters between the ages of 15
and 19, who die, die from gun violence. When guns and ammunitions reach
the wrong hands, we must be able to hold accountable the companies that
put destructive weapons in the hands of these criminals.
My dissent for this bill focuses around the lack of responsibility
required by arms dealers. When the desired intent of a product is to
fatally wound an object through legal or illegal means, there will
always be the need of a high demand of accountability. For cases of gun
violence in which the firearms industry should be held responsible,
this resolution does not protect its victims. In past years, State and
Federal Courts have found these types of cases to be grounded in such
credible legal principles as negligence, product liability, and public
nuisance. If this legislation passes, the high demand of accountability
and liability required by firearms companies will drastically decrease.
For these reasons, I cannot support the bill.
Mr. UDALL of Colorado. Mr. Speaker, some of my constituents have let
me know they disagreed with my past vote against similar legislation.
They asked me to take a closer look and consider voting for this bill
today, and I promised to do so.
However, after careful review of the bill and consideration of points
raised by its supporters and opponents, I have concluded that I cannot
in good conscience vote for it.
I voted against similar legislation in the past because I was not
convinced there was a need for Congress to take such action to restrict
certain lawsuits against the manufacturers and sellers of firearms. And
I still am not convinced that the potential adverse consequences of
those lawsuits are so great that Congress should close the courthouse
door to people who think they have valid claims.
And, as in the past, I am particularly reluctant to support
legislation that would go further than barring future lawsuits by
requiring the immediate dismissal of cases under active consideration
by the courts. It seems to me that this is a dangerous precedent for
the legislative branch to undertake, and the courts are in a much
better position than Congress to decide whether the people who have
brought those pending cases have valid claims or whether their
complaints are frivolous or malicious.
It happens that this bill deals with lawsuits against firearms
manufacturers. But this concern about changing the legal rules to
prohibit further consideration of active cases (as opposed to pending
ones) would be the same for similar lawsuits against the makers or
sellers of other consumer products that are inherently dangerous, if
not lethal, when misused--for example, automobiles and electronic
devices.
And, while the bill before us--which has already passed the Senate--
differs in some respects from versions we have considered before, it
too would apply to pending cases.
At the very least the House should have been able to debate and
decide on possible changes to the bill. But that did not happen,
because the Republican leadership insisted on bringing the bill to the
floor under restrictive procedures that essentially barred any
amendments from being offered. I strongly object to this way of
considering such legislation.
Most of the debate about this bill has been about its significance
for firearms manufacturers--and, if the bill dealt only with
manufacturers, I might have come to a different conclusion about the
need for liability protection. But the provisions related to sellers or
other distributors--provisions that are equally or more important--are
another matter.
I also think we should at least debate and consider whether reducing
the deterrent effect of potential liability might increase the chance
that firearms could knowingly or negligently be transferred to
criminals or terrorists. I think the seriousness of this is illustrated
by the report of the Government Accountability Office (GAO) indicating
that last year alone there were at last 56 times when people the
federal government considered known or suspected terrorists attempted
to purchase firearms.
It's true that under current law, even actual--let alone suspected--
membership in a terrorist organization, by itself, is enough to bar
someone from purchasing a firearm. But instead of considering a
possible change to this part of current law, today we are debating
whether the law should be changed to reduce, not strengthen, the legal
deterrents to such purchases.
Mr. Speaker, I know that litigation can be costly, and I am not in
favor of frivolous lawsuits. Nor am I in favor of banning gun ownership
or abolishing the domestic gun manufacturing industry. Earlier this
year, for example, I voted against an amendment that would have banned
the export of certain American firearms overseas. And since the House
last considered similar legislation I have also undertaken a deeper
review of Second Amendment concerns and my staff and I have met with
thoughtful and enthusiastic Coloradans (like my good friend Rick
Reeser) who feel differently about the implications and desirability of
this legislation. I have also had many informative conversations with
many Colorado sportsmen and women, including some of my staff who make
a compelling case that gun ownership is not just a question of legal
rights but also about respecting and preserving a critical component of
individual liberty. I embrace this view and respect their concerns and
acknowledge the need for a less divisive debate about the preserving
Second Amendment rights.
But, after a careful reading of the provisions of this legislation
and the most objective review that I can make of the arguments for and
against its enactment, I still think we in the
[[Page H9008]]
Congress should leave it to the courts to decide which of the lawsuits
covered by this bill are frivolous and which are not. For all these
reasons, and especially because we were not even permitted to consider
any changes, I cannot support this legislation.
Mr. OTTER. Mr. Speaker, I rise today to add my support to S. 397, the
Protection of Lawful Commerce in Arms Act.
I also commend Senator Larry Craig from Idaho on his leadership on
this legislation, defending Americans' Second Amendment right to bear
arms.
The Protection of Lawful Commerce in Arms Act, S. 397, is bipartisan,
common-sense legislation that takes an important step toward preventing
reckless lawsuits targeting the firearms industry. Such misguided
claims against the legal manufacture and sale of firearms and
ammunition are akin to suing the Postal Service or an envelope
manufacturer over someone committing the crime of mail fraud--it just
doesn't make sense. The bill provides protection for those in the
firearms industry from lawsuits arising from the acts of people who
criminally or unlawfully misuse their products. The bill preserves
citizen access to firearms and ammunition for all lawful purposes,
including hunting, self-defense, collecting and competitive or
recreational shooting.
I believe that manufacturers and sellers of firearms and ammunition
must be protected from restrictions on interstate or foreign commerce.
In light of the concerted efforts by opponents of the Second Amendment
to destroy the gun industry through frivolous lawsuits, it has become
imperative that we protect the jobs and economic well-being of the
thousands of people who work for manufacturers and sellers of firearms
and ammunition. I find the idea of holding an industry liable for the
criminal misuse of their legal products deplorable. Our nation cannot
allow the innocent to pay for the dealings of the guilty, or we
circumvent the very foundation of the rule of law. It is the
individuals who commit violent crimes, not the makers of the means, who
must take personal responsibility for their actions through the
restitution and civil penalties affirmed by law. This should be the
case whether or not a firearm was used to commit the crime.
Without this legislation, further unfounded lawsuits against the gun
industry will lead inevitably to an encroachment upon our Second
Amendment rights. Congress must work diligently to reduce the level of
political rhetoric surrounding gun control, protect the Second
Amendment, and promote the role of personal responsibility in society.
This bill is a key element of our effort to bring some sanity to
what's become a thriving personal injury industry in this country.
Americans understand that suing legitimate firearms manufacturers and
dealers out of existence won't stop criminal gun violence. But trial
lawyers are eager to cash in on the pain of victims, and criminals
rarely have deep pockets. This puts the responsibility where it
belongs.
I joined my colleagues in the House in passing similar legislation
during the 108th Congress. That unfortunately got held up in the
Senate. I am hopeful we will take the opportunity today to pass this
bill with no changes so it can go to the President's desk for a
signature. This legislation is long overdue.
Mr. SCOTT of Virginia. Mr. Speaker, once again we find ourselves here
debating the scope of the Second Amendment and whether its purpose is
to protect the sanctity of state militias or provide a fundamental
right to individuals, irrespective of their relationship to state
militias, to possess firearms. While this bill cites in its findings
that the Second Amendment protects the right of individuals to bear
arms, there has been a definitive resolution by the courts of just what
right the Second Amendment protects.
In United States v. Miller, the Supreme Court wrote in 1939 that the
``obvious purpose'' of the right to keep and bear arms in the Second
Amendment was ``to assure the continuation and render possible the
effectiveness'' of state militias and that the guarantee of that right
``must be interpreted and applied with that end in view.'' This
language was a clear indication that the Second Amendment right to
``bear arms'' guarantees the right of the people to maintain effective
state militias, but does not provide any type of individual right to
own or possess weapons.
Mr. Speaker, for more than sixty years following the Supreme Court's
decision in Miller, there was little judicial debate regarding the
scope of the Second amendment. In fact, virtually every federal appeals
court has decided this issue and only one, the Fifth Circuit in United
States v. Emerson, has endorsed the individual rights view. Since the
Emerson opinion in 2001--which was joined by only two circuit court
judges and actually upheld the gun law at issue--the individual rights
view has been rejected by the Fourth, Sixth, Seventh, Ninth and Tenth
Circuits. The First, Second, Third and Eighth Circuits also have issued
definitive rulings rejecting the individual rights view.
The First Circuit held that the second amendment applies only to
firearms having a ``reasonable relationship to the preservation or
efficiency of a well-regulated militia.'' 1939 Miller case.
In 1984, in the Second Circuit, the court cited Miller for the
proposition that the right to possess a gun was ``not a fundamental
right'' because the Second Amendment did not guarantee the right to
keep and bear a weapon unless the evidence showed the firearm had some
``reasonable relationship'' to the preservation or efficiency of a well
regulated militia--U.S. v. Toner.
In 1996, in the Third Circuit, defendant's possession of machine guns
did not have a connection with militia-related activity required for
second amendment protections to apply--U.S. v. Rybar.
The Fourth Circuit, a 1995 case, stated that courts have consistently
held that the second amendment only confers a collective right
of keeping and bearing arms which bear a reasonable relationship to the
preservation or efficiency of a well-regulated militia--Love v.
Pepersack.
The Sixth Circuit, in 2000, held that the lower courts have uniformly
held that the second amendment preserves a collective rather than an
individual right--U.S. v. Napier.
The Seventh Circuit, the second amendment establishes no right to
possess a firearm apart from the role possession of the gun might play
in maintaining a State militia. That is a 1999 case--Gillespie v. City
of Indianapolis.
The Eighth Circuit stated that the purpose of the second amendment is
to restrain the Federal Government from regulating the possession of
arms where such regulation would interfere with the preservation or
efficiency of the militia. That is a 1992 case--U.S. v. Hale.
The Ninth Circuit in 2003 stated that it is this collective rights
model which provides the best interpretation of the second amendment--
Silveira v. Lockyer.
The Tenth Circuit, a 1977 case, to apply the amendment so as to
guarantee an appellant's right to keep an unregistered firearm which
has not been shown to have any connection with the militia, merely
because he is technically a member of the Kansas militia, would be
unjustifiable in terms of either logic or policy--U.S. v. Oakes.
The Eleventh Circuit, a 1997 case concerning motivating the creation
of the second amendment, convinces us that the amendment was intended
to protect only the use or protection of weapons reasonably related to
a militia actively maintained and trained by the States--U.S. v.
Wright. I believe these cases are evidence of the remarkable degree of
judicial consensus on the meaning of the Second Amendment.
Mr. Speaker, I suggest that if my colleagues across the aisle want to
amend the Constitution, they should do it by amendment rather than
attempting to do it through findings.
Mr, Speaker, this bill also contains a provision requiring a
conviction before a defendant who has violated 18 U.S.C. 924(h) can be
sued. Requiring a conviction before an offender can be sued for the
civil consequences of his unlawful acts would constitute an
extraordinary change in traditional civil liability standards. The
public will remember that O.J. Simpson was found civilly liable for
damages, even though he had been acquitted in criminal court. Moreover,
such a requirement would create absurd results, based on what a
prosecutor may decide to do in a particular case, and when he decides
to do it. The prosecutor may choose not to prosecute a particular case
at all, for various reasons. This would preclude a claim, regardless of
how egregious the injuries or clear the liability. Or, even where the
case is prosecuted, the prosecutor may decide to plea bargain by
allowing a defendant who has unlawfully transferred a number guns to
plead guilty to one transfer and drop the remainder. It would be absurd
to allow one case to go forward and not others, depending on which case
was technically pleaded. Of course, it is always possible that a case
will be thrown out because of an unlawful search or seizure because of
a coerced confession, or simply because the prosecutor is unable to
obtain a conviction. And even where there is a conviction, the timing
of the conviction, alone, may be dispositive of the claim, because
there is nothing in the bill or the law which tolls the statute of
limitations on a civil claim, pending a conviction. And there is
nothing in the bill to deal with what happens if the conviction is
reversed or appeal.
Absent a conviction, the unlawful transfer still must be proven in
order to pursue the case. This should be protection enough for someone
who causes another harm by criminal conduct.
Mr. Speaker, this bill is an unprecedented attack on the due process
rights of victims injured by the misconduct of an industry that seeks
to escape the legal rules that govern the rest of us and I urge my
colleagues to oppose this bill.
I submit the following list of cases supporting collective view for
the Record.
[[Page H9009]]
A Sampling of Court Decisions that Support the Militia
Interpretation of the Second Amendment from The Legal Action
Project.
u.S. SUPREME COURT
U.S. v. Miller, 307 U.S. 174 (1939).
Lewis v. United States, 445 U.S. 55 (1980).
U.S. COURTS OF APPEALS
U.S. v. Parker, 362 F.3d 1279 (10th Cir. 2004).
U.S. v. Lippman, 369 F.3d 1039 (8th Cir. 2004).
U.S. v. Price, 328 F.3d 958 (7th Cir. 2003).
U.S. v. Graham, 305 F.3d 1094 (10th Cir. 2002).
U.S. v. Lucero, 43 Fed. Appx. 299 (10th Cir. 2002).
U.S. v. Bayles, 310 F.3d 1302 (10th Cir. 2002).
Silveira v. Lockyer, 312 F.3d 1052, rehearing en banc
denied, 328 F.3d 567 (9th Cir. 2003).
Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002).
U.S. v. Twenty-Two Various Firearms, 38 Fed. Appx. 229 (6th
Cir. 2002).
U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert.
denied, 121 S. Ct. 1641 (2001).
U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert.
denied, 121 S. Ct. 833 (2001).
U.S. v. Lewis, 236 F.3d 948 (8th Cir. 2001).
U.S. v. Hemmings, 258 F. 3d 587 (7th Cir. 2001).
U.S. v. Hager, 22 Fed. Appx. 130 (4th Cir. 2001).
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir.
1999), cert. denied, 528 U.S. 1116 (2000).
U.S. v. Napier, 233 F.3d 394 (6th Cir. 2000).
U.S. v. Baer, 235 F.3d 561 (10th Cir. 2000).
U.S. v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied,
522 U.S. 1007 (1997).
U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), cert. denied,
522 U.S. 807 (1997).
Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519
U.S. 912 (1996).
U.S. v. Farrell, 69 F.3d 891 (8th Cir. 1995).
Love v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied,
516 U.S. 813 (1995).
U.S. v. Friel, 1 F.3d 1231 (1st Cir.1993).
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied,
507 U.S. 997 (1993).
U.S. v. Nelsen, 859 F.2d 1318 (8th Cir. 1988).
U.S. v. Toner, 728 F.2d 115 (2d Cir. 1984).
Thomas v. City Council of Portland, 730 F.2d 41 (1st Cir.
1984).
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.
1982), cert. denied, 464 U.S. 863 (1983).
U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied,
435 U.S. 926 (1978).
U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977).
U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert.
denied, 424 U.S. 918 (1976).
U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426
U.S. 948 (1976).
U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974).
Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir.),
cert. denied, 414 U.S. 839 (1973).
U.S. v. Day, 476 F.2d 562 (6th Cir. 1973).
Cody v. U.S., 460 F.2d 34 (8th Cir.), cert. denied, 409
U.S. 1010 (1972).
U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971).
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on
other grounds, 404 U.S. 1009 (1972).
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971).
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971).
U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other
grounds, 319 U.S. 463 (1943).
U.S. v. Cases, 131 F.2d 916 (1st Cir. 1942), cert. denied
sub nom., Velazquez v. U.S., 319 U.S. 770 (1943).
u.s. FEDERAL DISTRICT COURTS
Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C.
2004).
Blackburn v. Jansen, 241 F. Supp. 2d 1047 (D. Neb. 2003).
Golt v. City of Signal Hill, 132 F. Supp. 2d 1271 (C.D.
Cal. 2001).
Olympic Arms v. Magaw, 91 F. Supp. 2d 1061 (E.D. Mich.
2000).
U.S. v. Willbern, 2000 WL 554134 (D. Kan. Apr. 12, 2000).
U.S. v. Bournes, 105 F. Supp. 2d 736 (E.D. Mich. 2000).
U.S. v. Boyd, 52 F. Supp. 2d 1233 (D. Kan. 1999), aff'd,
211 F.3d 1279 (10th Cir. 2000).
U.S. v. Henson, 55 F. Supp. 2d 528 (S.D. W. Va. 1999).
U.S. v. Visnich, 65 F. Supp. 2d 669 (N.D. Ohio 1999).
U.S. v. Caron, 941 F. Supp. 238 (D. Mass. 1996).
Moscowitz v. Brown, 850 F. Supp. 1185 (S.D.N.Y. 1994).
U.S. v. Kruckel, 1993 WL 765648 (D.N.J. Aug. 13, 1993).
Krisko v. Oswald, 655 F. Supp. 147 (E.D. Pa. 1987).
U.S. v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981), cert.
denied, 496 U.S. 842 (1984).
Vietnamese Fishermen's Association v. KKK, 543 F. Supp. 198
(S.D. Tex. 1982).
Thompson v. Dereta, 549 F. Supp. 297 (D. Utah 1982).
U.S. v. Kraase, 340 F. Supp. 147 (E.D. Wis. 1972).
U.S. v. Gross, 313 F. Supp. 1330. (S.D. Ind. 1970), aff'd
on other grounds, 451 F.2d 1355 (7th Cir. 1971).
STATE COURTS
Arnold v. Cleveland, 616 N.E.2d 163 (Ohio 1993).
State v. Fennell, 382 S.E.2d 231 (N.C. 1989).
U.S. v. Sandidge, 520 A.2d 1057 (D.C.), cert. denied, 108
S.Ct. 193 (1987).
Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill.
1984).
Masters v. State, 653 S.W.2d 944 (Tex.App. 1983).
City of East Cleveland v. Scales, 460 N.E.2d 1126 (Ohio
App. 1983).
State v. Vlacil, 645 P.2d 677 (Utah 1982).
In Re Atkinson, 291 N.W.2d 396 (Minn. 1980).
State v. Rupp, 282 N.W.2d 125 (Iowa 1979).
Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976).
Burton v. Sills, 248 A.2d 521 (N.J. 1968), appeal
dismissed, 394 U.S. 812 (1969).
Harris v. State, 432 P.2d 929 (Nev. 1967).
Mr. GENE GREEN of Texas. Mr. Speaker, I rise in support of the
Protection of Lawful Commerce in Arms Act. I am an original cosponsor
of the House version of this legislation, H.R. 800.
A lawsuit against a gun manufacturer simply for being a gun
manufacturer has no business in American courts.
I am proud that every court in our judicial system has agreed with
that and has thrown out these frivolous lawsuits.
However, in U.S. courts we have the American rule, where each side
pays their own legal fees under normal circumstances, instead of the
English rule, where the loser usually pays.
Generally, I support the American rule because it is fairer to
individuals seeking relief from large firms.
Unfortunately the American rule can mean that frivolous lawsuits
which have no chance of going anywhere still impose a terrible burden
on parties.
Some people in this country are politically opposed to the firearm
industry and believe most firearms should be illegal or hard to obtain.
So these folks do not have a problem spending non-profit money and
public money on a losing lawsuit in pursuit of ideology.
However, that is not fair to the firearm industry, which is not only
completely legal, but has the right to own their product enshrined in
the U.S. Constitution.
Therefore, it is particularly bad that the firearm industry has had
to pay $200 million to defend themselves from frivolous lawsuits that
have never, ever succeeded in court.
S. 397 only protects legitimate businesses that comply with Federal,
State and local firearm laws.
The bill does not waive liability for actually defective products,
breach of contract or warranty, or other causes that are not related to
third-party criminal misuse of firearms.
If we are going to sue firearm makers for armed robberies, why not go
on and sue the auto maker who made the get-away car?
The idea is absurd, but some groups and politicians want to punish
firearm manufacturers for their very existence.
As a result, we must pass S. 397 and send it to the President.
Mr. MORAN of Virginia. Mr. Speaker, I rise today in strong opposition
to the ``Protection of Lawful Commerce in Arms Act.''
This bill is an attempt to carve out an exclusive liability
exemption, and its vote on the floor today is a giveback to the gun
industry at a significant cost to the American people.
Under this bill, manufacturers and sellers of firearms or ammunition
will not be held accountable for even the most irresponsible
distribution of weapons that kill innocent people, including police
officers, children and bystanders of gang violence.
While the wholesale prohibition against lawsuits may allow several
exemptions, these exclusions overhaul years of legal negligence
standards.
I'm concerned that this bill for the gun industry sets an impractical
legal standard for even the most reasonable litigation.
In the Washington-area, we are particularly sensitive to gun
violence. You may not all remember, but our nation was held captive for
three weeks in October 2002 while two men systematically killed ten
people and wounded three others with a sniper rifle obtained from an
irresponsible gun dealer that ``lost'' over 200 other unaccounted for
guns.
The language in this bill is so restrictive that survivors of the
victims would not have had any legal recourse against the company whose
negligent business practices led to the deaths of their family.
Under the bill, we are eliminating a powerful incentive for gun
dealers to value accountability and keep guns out of the wrong hands.
We are implicitly condoning their irresponsible behavior.
I understand the desire to protect the American judicial system from
what some people perceive as frivolous lawsuits. But gun manufacturers
and sellers should not be able to write their own liability standard
into law.
We aren't debating a product that has an inconsequential impact on
our nation.
Almost 30,000 people in our country die from firearm injuries,
murders, and suicides each year.
According to the National Center for Injury Prevention and Control,
as recently as 2002, 2,893 young people were murdered by firearms. That
accounts for the second leading cause of death for young people under
19 in the United States.
Our economy even suffers from this senseless violence. From the loss
of productivity, medical treatment and rehabilitation and legal costs,
gun violence costs the U.S. at least $100 billion annually.
Instead of putting forth a national plan to end this futile cycle of
death, extending the
[[Page H9010]]
ban on assault weapons, or even prohibiting people we know are on our
own terrorist list from obtaining weapons, we are debating how to best
shield the gun industry from accountability and responsibility.
Mr. Speaker, it is unfortunate today that we are sending the wrong
message to gun manufacturers and the worst of all possible messages to
the public: We are not willing to put special interests aside to
protect the American people.
Mr. SCHWARZ of Michigan. Mr. Speaker, I rise today in strong support
of S. 397, the Protection of Lawful Commerce in Arms Act.
As a gun owner, it troubles me that many interest groups and local
municipalities have decided that the way to reduce gun violence is to
put the manufacturers of firearms and firearm parts out of business
through lawsuits and the fear of lawsuits. Their actions run counter to
the main purpose of gun ownership: protection.
The Second Amendment was not written as a mere exercise in
constitutional thought. It had a practical purpose: First, to ensure
that citizens would have the tools to protect their families and their
homes and, second, to ensure that an armed militia could be called up
to defend the country in emergencies.
But these lawsuits, Mr. Speaker, have the potential of crippling the
American firearms industry, in the same manner as the threat of medical
liability has crippled the medical industry. Why would we want to go
down that route? Why would we want to put firearms out of the reach of
law-abiding citizens.
S. 397, and H.R. 800, the companion legislation of which I was proud
to be an original co-sponsor, would prohibit state and Federal lawsuits
against the gun industry for deaths resulting from unlawful actions of
the user.
In my estimation, Mr. Speaker, these lawsuits are a threat to our
hard-earned Second Amendment rights. It is entirely proper that we
should prevent such unconstitutional actions. I commend the gentleman
from Florida, Mr. Stearns, and Chairman Sensenbrenner for their hard
work on this legislation, and I urge passage of the bill.
Mr. EMANUEL. Mr. Speaker, I rise in strong opposition to S. 397, the
Gun Manufacturers Liability Protection Act. Shielding gun
manufacturers, dealers and distributors from liability is one of the
most egregious forms of corporate welfare we've considered in this
House all year.
This is George Orwell legislation at its finest--all industries are
equal, but some are more equal than others. If you sell beer to a 17-
year-old and he causes an accident, you can be held liable. But if you
allow a 17-year-old to walk out of your store with a high powered
rifle, don't worry. Congress has your back.
Mr. Speaker, this is not a hypothetical case. Last year the families
of DC sniper victims settled for $2.5 million with Bull's Eye Shooter
Supply and Bushmaster Firearms, because Bull's Eye allowed Lee Boyd
Malvo to shoplift a military quality rifle--one of 233 guns they could
not account for when investigated by the ATF. Some of my colleagues
call this a frivolous lawsuit. I don't think there is anything
frivolous about 233 missing guns.
In July of this year we gift wrapped a provision in the Medical
Malpractice Bill that shielded the pharmaceutical industry from
liability on any drug that made it through the regular FDA approval
process. Coincidentally, Merck Pharmaceuticals was at the same time
facing multiple lawsuits tied to its misrepresentation of the dangers
of the prescription drug Vioxx.
Thanks to this Congress, Americans can continue to exercise their
Constitutional right to seek redress in the court system, unless it
involves guns or drugs.
I am gratified to see that this bill does include certain common-
sense provisions such as child safety locks and a ban on armor-piercing
bullets. We fought hard for these ideas in the Clinton Administration
and I urge my colleagues to resist any pressure to have them removed.
Despite my support for these ideas I must vote no on the overall
bill. Mr. Speaker, this bill denies Americans one of their most basic
rights in order to provide special protections for a very special
interest. I urge my colleagues to resist the gun lobby and defeat this
bill.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Simpson). All time for debate has
expired.
Pursuant to House Resolution 493, the Senate bill is considered read
and the previous question is ordered.
The question is on the third reading of the Senate bill.
The Senate bill was ordered to be read a third time, and was read the
third time.
The SPEAKER pro tempore. The question is on the passage of the Senate
bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this 15-
minute vote on passage of S. 397 will be followed by a 5-minute vote on
the motion to instruct on H.R. 2744.
The vote was taken by electronic device, and there were--yeas 283,
nays 144, not voting 6, as follows:
[Roll No. 534]
YEAS--283
Aderholt
Akin
Alexander
Baca
Bachus
Baird
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Berkley
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boucher
Boustany
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carter
Chabot
Chandler
Chocola
Coble
Cole (OK)
Conaway
Cooper
Costa
Costello
Cramer
Crenshaw
Cubin
Cuellar
Culberson
Cunningham
Davis (AL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dingell
Doolittle
Drake
Dreier
Duncan
Edwards
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Gene
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hinojosa
Hobson
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Kanjorski
Kaptur
Kelly
Kennedy (MN)
Kind
King (IA)
King (NY)
Kingston
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Larsen (WA)
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marshall
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris
Melancon
Mica
Michaud
Miller (FL)
Miller (MI)
Miller, Gary
Mollohan
Moran (KS)
Murphy
Murtha
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Obey
Ortiz
Osborne
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Royce
Ryan (OH)
Ryan (WI)
Ryun (KS)
Salazar
Sanchez, Loretta
Sanders
Saxton
Schmidt
Schwarz (MI)
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (NJ)
Smith (TX)
Sodrel
Souder
Spratt
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NAYS--144
Abercrombie
Ackerman
Allen
Andrews
Baldwin
Becerra
Berman
Bishop (NY)
Blumenauer
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Carnahan
Carson
Case
Castle
Clay
Cleaver
Clyburn
Conyers
Crowley
Cummings
Davis (CA)
Davis (IL)
DeGette
Delahunt
DeLauro
Dicks
Doggett
Doyle
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Frank (MA)
Gonzalez
Green, Al
Grijalva
Gutierrez
Harman
Hastings (FL)
Hinchey
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kirk
Kucinich
Langevin
Lantos
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Miller (NC)
Miller, George
[[Page H9011]]
Moore (KS)
Moore (WI)
Moran (VA)
Nadler
Napolitano
Neal (MA)
Oberstar
Olver
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Price (NC)
Rangel
Rothman
Ruppersberger
Rush
Sabo
Sanchez, Linda T.
Schakowsky
Schiff
Schwartz (PA)
Scott (VA)
Serrano
Shays
Sherman
Slaughter
Smith (WA)
Snyder
Solis
Stark
Tauscher
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NOT VOTING--6
Boswell
Davis (FL)
DeLay
Keller
Musgrave
Roybal-Allard
{time} 1153
Ms. EDDIE BERNICE JOHNSON of Texas, Ms. SCHAKOWSKY, and Mr. DICKS
changed their vote from ``yea'' to ``nay.''
Ms. LORETTA SANCHEZ of California, Mrs. EMERSON, Mr. MORAN of Kansas,
and Mr. JONES of North Carolina changed their vote from ``nay'' to
``yea.''
So the Senate bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated for:
Mrs. MUSGRAVE. Mr. Speaker, on rollcall No. 534 I was unavoidably
detained. Had I been present, I would have voted ``yea.''
____________________