[Congressional Record Volume 151, Number 137 (Tuesday, October 25, 2005)]
[Extensions of Remarks]
[Pages E2162-E2163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

                                 ______
                                 

                               speech of

                           HON. CLIFF STEARNS

                               of florida

                    in the house of representatives

                       Thursday, October 20, 2005

  Mr. STEARNS. Mr. Speaker, as the sponsor of H.R. 800, the virtually 
identical House version of this legislation, I rise today to clear up 
any questions that might arise when trying to understand the intent of 
S. 397 and what its enactment would accomplish. The Protection of 
Lawful Coerce in Arms Act will eliminate predatory lawsuits that would 
otherwise cripple an entire industry.
  First, let me make two points about what the bill will not do. 
Nothing in the bill is intended to allow ``leap-frogging'' over the gun 
dealer to the manufacturer. The negligent entrustment provision applies 
specifically to the situation where a dealer knows or reasonably should 
know that a dangerous person is purchasing a firearm. When the 
manufacturer has done nothing but sell a legal, non-defective product 
according to the law, the negligent entrustment provision would not 
allow a plaintiff bypass of the gun dealer to get to the deeper pockets 
of the distributor or manufacturer.
  The amendment in the Senate offered by Senators Frist and Craig 
regarding ``administrative proceedings'' removed any confusion or 
misinformed rhetoric regarding the ``administrative proceedings'' 
section. This legislation will have no effect on the ability of the 
Bureau of Alcohol, Tobacco, and Firearms or any administrative agency 
to revoke licenses or otherwise engage in administrative proceedings to 
punish bad acting manufacturers, distributors, or dealers, or otherwise 
enforce the laws and regulations that apply to them. While I do not 
think the amendment was necessary because neither my bill nor S. 397 as 
introduced by Senator Craig did so, now there can be no question. ATF 
is authorized to begin enforcement proceedings when a violation of our 
Nation's Federal gun laws has occurred.
  I want the Congressional Record to clearly reflect some specific 
examples of the type of predatory lawsuits this bill will immediately 
stop. The bill was drafted to require courts where these cases are 
pending or filed to dismiss them on their own motions, what the lawyers 
call sua sponte. One of the primary purposes of this legislation is to 
not force defendants to incur the additional costs and delay of filing 
motions and arguing, and certainly not to go through costly trials and 
appeals of cases that the bill requires be dismissed forthwith. The 
predatory lawsuits that this bill will stop are an abuse of courts and 
law-abiding businesses and individuals.
  A clear cut example is the case of the City of New York v. Beretta 
USA Corp. et al, currently set for trial on November 27 in Federal 
court in Brooklyn, NY. The plaintiff has asserted that industry members 
have created a ``public nuisance.'' The lawful sale of a highly 
regulated product later misused by criminals is not a public nuisance, 
and has never been

[[Page E2163]]

considered a public nuisance in American jurisprudence.
  One such suit that S. 397 will stop is the suit by the District of 
Columbia and nine individual plaintiffs who have sued members of the 
firearms industry under a District statute that, unbelievably, imposes 
automatic and absolute liability. The statute in question says a 
manufacturer is liable ``without regard to fault or proof of defect.'' 
There is also a case pending in Federal court in the District of 
Columbia in which a gun manufacturer is being sued under this very same 
statute--Charlot v. Bushmaster. The companies being sued under the 
District ``automatic'' liability law have no defense.
  Another example is the case of Ileto v. Glock, in Federal court in 
Los Angeles, CA, against a manufacturer and a distributor who are being 
sued over a criminal shooting. The facts, if you can believe it, are 
that the manufacturer, Glock, sold the pistol later criminally misused, 
to a Washington State police department and the distributor being sued 
never owned, sold, nor possessed the firearm that was criminally 
misused.
  Yet another example is the cases of Hernandez v. Kahr Arms and 
Maisonet v. Kahr Arms pending in State court in Massachusetts. Here a 
manufacturer, Kahr Arms, whose products are used by law enforcement 
across America, is being sued for a criminal shooting at a well-known 
gang hangout with a long history of drug use, drug dealing and 
violence. The criminal shooting was committed with an unfinished, but 
functioning firearm assembled from individual parts that were stolen 
from the factory over time by an ex-employee. Following the incident, 
James A. McNally of the ATF Boston Field Office told the local 
newspaper that theft from reputable gun manufacturers such as Kahr Arms 
is relatively rare. He went on to say, ``[Kahr Arms] is the victim. 
They're not the problem.''--Worcester Telegraph & Gazette at p. 1, 
March 18, 2000.
  There is also a pending suit against members of the firearms industry 
by the city of Gary, IN, even though the State of Indiana has itself 
passed a State law similar in purpose and intent to S. 397.
  In the days leading up to the Senate debate this summer lawyers from 
antigun interest groups rushed to the courthouse to file at least three 
such lawsuits, one in New York and two in Pennsylvania. There are 
reports that still more baseless lawsuits have been filed just this 
week.
  Congress is properly acting here under its Commerce Clause powers, as 
we have done many times in the past. We are also rightly concerned, as 
is the Department of Defense, that if these lawsuits succeed in driving 
gun manufacturers out of business, the national defense will be harmed. 
The same is true for our homeland security, as these same companies 
make the firearms used by law enforcement. It is our obligation to take 
steps to protect a vital component of our national defense 
infrastructure--America's ``Arsenal for Democracy.''
  The Constitution imposes upon Congress the duty to protect the second 
amendment and the right it provides to individuals to ``keep and bear 
arms.'' This right will be a mere illusion if firearms manufacturers 
are driven out of business by predatory lawsuits.
  Mr. Speaker, let me continue to be clear here as to the purpose and 
intent of this bill so that creative lawyers cannot later try to come 
up with a creative argument to wiggle around this bill.
  For instance, the intent of Congress and this bill cannot be evaded 
or avoided by, for example, claiming that a public nuisance suit 
against manufacturers or sellers is based on criminals who unlawfully 
or criminally possess firearms but who may have not discharged them in 
the commission of a crime. In other words, as the author of this 
legislation, I want my colleagues and our fellow Americans to 
understand that, under the Protection of Lawful Commerce in Arms Act, a 
``Qualified Civil Liability Action'' covers criminal/unlawful 
possession, that includes, as used in the act, ``misuse means and 
includes possession''.
  I would also like to use this opportunity to clear up some other 
concerns and misunderstandings. Some have asked, ``Does the language in 
section 5 create new civil liability for a gun owner, if the person 
does not use a `secure gun storage or safety device' and the person's 
gun is stolen and misused?'' I would say quite forcefully that the 
answer is a resounding ``No.'' The fact is, there are almost no cases 
finding gun owners liable for misuse of stolen guns. Both the theft and 
the later crime are ``superseding acts'' that ``break the chain'' of 
causation under traditional tort law.
  I would tell my colleagues that the only way section 5 could create 
liability would be if a court thought it created a new duty or a new 
standard of care for gun owners. However, the language specifically 
states that it does not ``create a cause of action against any Federal 
firearms licensee or any other person for any civil liability [or] 
establish any standard of care.''
  Finally, compliance or noncompliance could not even be used as 
evidence, except against a dealer who failed to sell the required 
locks, or by a gun owner who wanted to present his use of a safety 
device as a defense against a civil suit. On that point, section 5 
provides a new defense, not a new line of attack.
  The purpose of the liability protection language in section 5 is to 
address gun owners' concern that the ``secure gun storage or safety 
device'' requirement would expose them to a new kind of lawsuits. The 
language neither creates nor eliminates liability for gun owners who 
use safety devices; in effect, it leaves the common law rules unchanged 
for those gun owners.
  If individual gun owners' liability for stolen guns becomes a major 
national issue like the suits against the industry, it could be the 
subject of additional legislation. The Indiana legislature changed 
Indiana law to prevent exactly this type of lawsuit after a court 
decision opened that door.
  Mr. Speaker, I have made these remarks to ensure that anyone trying 
to evade the letter and spirit of this legislation will have as little 
``wiggle room'' as possible. It is my hope that I have done just that.

                          ____________________