[Congressional Record (Bound Edition), Volume 150 (2004), Part 2]
[Senate]
[Pages 2437-2489]
[From the U.S. Government Publishing Office, www.gpo.gov]




      PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to S. 1805, 
which the clerk will report.
  The assistant journal clerk read as follows:

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

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10:30 a.m. will be equally divided between the Senator from 
Idaho, Mr. Craig, and the Senator from Rhode Island, Mr. Reed, or their 
designees.
  Who seeks recognition?
  The Senator from Idaho.
  Mr. CRAIG. Mr. President, the leader has obviously taken time. We 
thought we were going to have an hour on each side. Is the vote still 
scheduled for 10:30, or does the leader's time count in that?
  The ACTING PRESIDENT pro tempore. The vote will be at 10:30. The time 
has been reduced proportionately.
  Mr. CRAIG. I think we can live with that.
  The ACTING PRESIDENT pro tempore. For the information of the 
Senators, each side will have 23 minutes.
  Mr. CRAIG. I believe several of my colleagues will want to be on the 
floor to speak prior to the cloture vote. As the leadership has said, 
there is a cloture vote on the motion to proceed to S. 1805, the 
Protection of Lawful Commerce in Arms Act. We will vote on that at 
10:30 this morning.
  I regret that a few of our colleagues are forcing us to go through 
this procedural step instead of simply moving to the bill. This bill is 
supported by a strong bipartisan majority in the Senate, and I believe 
as we work our way through it, that kind of bipartisan relationship 
will clearly demonstrate itself. More than half the Senators, as I have 
said, both Republicans and Democrats, are cosponsors of our 
legislation, including the leadership of both parties. A very similar 
bill passed in the House nearly a year ago by a 2-to-1 vote margin, or 
nearly that margin.
  Some of our colleagues have already announced they intend to play 
politics with this bill instead of debating its merits. They have 
already announced their intention to throw a variety of nonrelated 
bills or amendments at this important--the legislation my guess is to 
attempt to divert the legislation and delay the completion of its 
consideration. However, I believe this morning's vote will demonstrate 
that a majority of the Senate is, indeed, ready to proceed to this bill 
and to debate it, as we should, offer legitimate amendments, debate 
those amendments fully, and vote them up or down if necessary.

[[Page 2438]]

  This legislation addresses a crisis in our courts and the integrity 
of our courts because our courts are now threatened by the kind of 
lawsuits that are simply not necessary but politically motivated. For a 
long time, the trial bar has attempted to use the court system to 
legislate social policy or legal activity in this country. What this 
bill does, and what we have worked to do and why it has gained the 
support it has, is craft a very narrow exception in the law so that we 
still hold those responsible accountable for their actions under all 
laws.
  What we have always said within the law is that someone cannot be 
held accountable for someone else's actions, and if someone is 
attempting to reach back through the law when someone is innocent and 
legal in their acts, then that kind of thing ought to stop. That is why 
we have worked hard to craft it narrowly.
  I think Americans clearly understand what we are attempting to do, 
and that is our goal. I hope my colleagues will vote in favor of 
cloture so that we can get into the full and robust debate of this 
legislation. It is important.
  I will turn to my colleague, Senator Reed, who will be handling the 
opposition, and then I believe at that time we will probably have 
several of our colleagues who wish to speak to it.
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. REED. Mr. President, I rise in strong opposition to the so-called 
Protection of Lawful Commerce in Arms Act. At a time when this country 
is faced with extraordinary problems--with economic problems, 
international problems--we are devoting very precious time to 
legislation that is in behalf of a special interest rather than dealing 
with the broader public interest, the economy of this country and the 
international position and status of this country.
  This is not legislation that is designed to protect the courts. This 
is legislation that is designed to protect gun dealers, the gun 
industry, manufacturers, and trade associations such as the National 
Rifle Association. To suggest this is simply a response to politically 
motivated cases flies in the face of cases that have been filed, like 
the cases of the victims of the sniper shootings here in Washington, 
DC; people like Bernice Johnson, whose husband was sitting on a bus 
reading his paper waiting to go on and run his route that day and was 
killed. It subsequently turns out the weapon that was used in this 
crime came from a dealer in Washington State who apparently couldn't 
account for 238 weapons. Mrs. Johnson is not suing to make a political 
point. She is suing simply because she lost her husband, the father of 
her children, and she would like to hold responsible those people who 
were negligent.
  The suggestion that this is a minor exception to the law when people 
are acting legally, following a statute, flies in the face of our 
concept of civil liability. It is not a question of just following the 
law. It is also a question of being responsible for your actions, of 
not being negligent, of taking due care in the performance of your 
legal duties. This whole approach is something I think flies in the 
face of basic common sense and the basic law of this country.
  We are struggling with huge problems across this Nation. Yet we are 
spending precious time here to try to deal with the interests of a 
special group of people, a very influential group of people. We are not 
out protecting the rights of Mrs. Johnson and others bringing this 
suit. We are protecting the rights, frankly, of the gun industry to be 
negligent and harm people through their negligence.
  This legislation is not a minor, carefully crafted exception. It 
would wipe out virtually every opportunity to assess whether a gun 
dealer, a gun manufacturer, or a trade association was negligent in 
their activities. It would bar virtually all negligence for product 
liability in State and Federal courts and throw out all pending cases, 
cases that have already been filed prior to this date, prior to the 
potential enactment of this legislation. It is a sweeping immunity to 
gun dealers, gun manufacturers, and even trade associations such as the 
National Rifle Association.
  It is no wonder the gun lobby dropped this legislation in the 107th 
Congress, because we were paralyzed here in Washington by a sniper--two 
snipers, it turns out--who killed people with weapons that were 
obtained through the apparent negligence of a gun dealer. Yet these 
individuals, these victims and their families, would be denied the 
right to go to court because of this legislation.
  It is also ironic that this would be the first gun bill to be enacted 
since Columbine, a situation in which, again, young people, disturbed 
young people, were able to go to a gun show using a straw purchaser, 
using the loophole that exists in buying weapons without a background 
check, and then went into a high school in Colorado and wreaked havoc. 
Instead of closing the gun show loophole, we are now trying to open up 
a huge highway for the negligence of gun dealers, negligence of the gun 
industry.
  Talking about the procedural correctness of this approach, this 
legislation did not go through the Senate Judiciary Committee. There 
were no hearings, no committee markups were ever scheduled. This very 
complicated issue of balancing the rights of plaintiffs versus the 
rights of defendants in the context of civil litigation was never fully 
assessed through hearings. Now we are here and now we must have a 
vigorous debate on this legislation. We must not only look to the 
specifics of this legislation but also to its impact across the country 
and address some larger issues of gun violence in the United States.
  Two years ago or so, it was the Washington area snipers who paralyzed 
this country, certainly paralyzed this area of the country. Today there 
is apparently one or perhaps more gunmen who are stalking innocent 
people on the highways of Ohio.
  Gun violence exists and we should do more to stop it. We should use 
this opportunity to pass provisions that will close the gun show 
loophole, that would reauthorize the ban on assault weapons that has 
operated in the last few years at least to keep the most dangerous 
weapons out of the hands of some very dangerous people. We should 
require effective safety locks on handguns. We should improve the 
national instant criminal background check system so there is a more 
accurate and more effective system of checking.
  These are the things we should be doing and I hope we can have an 
opportunity to offer amendments in this regard. Every day there are 
hundreds of thousands, millions of families who struggle to do all they 
can to protect their children and themselves. Here we are telling the 
gun industry: Don't join that effort to make people safer. You can 
ignore reasonable, responsible actions. You can be negligent and you 
will not be brought to justice.
  I think that is wrong. I think that is bad law, bad public policy. I 
urge my colleagues to oppose this legislation, to oppose this motion to 
go forward. There are much more pressing demands in this country we 
should address today: the unemployed, those who are struggling to find 
jobs in a jobless economy; funding fully our national defense. We have 
a budget that was presented to us that does not include any money for 
Iraq and Afghanistan. That is something we should be focused on today.
  Mr. DODD. Will my colleague yield?
  Mr. REED. I am happy to yield.
  Mr. DODD. I commend my colleague for his statement this morning. I 
want to underscore the last point he is making.
  Here we are with the highest unemployment figure since the Great 
Depression and we are debating the gun issue. I come from a State that 
probably has more manufacturers of guns than any other in the country. 
I think Connecticut is still the largest manufacturer. The idea we are 
going to take an entire industry and exclude it from liability should 
there be a just cause to bring them to a bar of justice is rather 
remarkable to me in light of everything else going on in the country. 
So I commend my colleague from Rhode Island. We come from the same 
region of the country. We have lost 45,000 jobs

[[Page 2439]]

in my State in the manufacturing sector in the last 30 months. I ask 
whether, in his view, there aren't higher priorities we ought to be 
addressing other than excusing an entire industry from liability 
against negligence?
  Mr. REED. Reclaiming my time, I agree entirely with the Senator from 
Connecticut. Rhode Island, like Connecticut, is seeing its 
manufacturing base evaporate. These are real problems. These are 
problems that affect families throughout this country. This is truly in 
the public interest, finding an answer to disappearing jobs throughout 
the country. Yet today we want to protect one very special interest.
  Let me add, too, as the Senator points out, not only are we trying to 
give an unprecedented immunity to one industry, this industry is 
virtually unregulated in the sense of other industries. It is not 
controlled by the Product Safety Commission, which would look at the 
product design. So one of the only recourses an individual has with 
respect to negligence claims is through the courts. Here we are eroding 
that avenue.
  Mr. DODD. I thank my colleague. If he will yield further?
  Mr. REED. I will.
  Mr. DODD. I thank my colleague. I will join him in opposing cloture 
on this bill and I hope the leadership would move on with another issue 
that I guarantee has a far higher priority with the American public 
than to satisfy one industry's fear that they might have to appear 
before the bar of justice to explain their behavior. The idea we would 
exclude this industry--we tried to do that on another issue on the MTBE 
issue that came up on the energy bill. As my colleague may know, I 
offered the securities reform bill, the National Standards legislation, 
Y2K, terrorism insurance. I am also a strong advocate of class action 
reform. I am not an opponent at all of trying to reform the tort 
system. But the idea that we would eliminate an entire industry from 
liability due to the potentiality of their products for causing great 
harm is amazing to me. Given the challenges our country faces, it is 
amazing we would spend time on this legislation.
  Mr. DURBIN. If the Senator will yield, I thank the Senator from Rhode 
Island for his leadership on this issue. I worked with him and I will 
continue. I would like to ask him this question.
  Am I correct that yesterday the item of business before us was to 
exempt individuals who had been held liable for creating medical 
injuries from their full accountability and liability in medical 
malpractice, including pharmaceutical companies and medical device 
companies? That was the item on the agenda yesterday. Now, today, we 
are taking up the exemption from liability for gun manufacturers and 
dealers. Does the Senator from Rhode Island detect a pattern here, that 
each day of the week we are going to try to single out another special 
interest group and give them an exemption from accountability and 
liability in courts in America?
  I think he is accurate in his description of what we have been doing 
in the last couple of days, which is trying to not provide for the 
public interest but to protect special interests, and not to provide 
individual citizens a right, regretfully, when they have been harmed, 
at least a right to make a determination of who should be held liable, 
but simply and categorically strip away these rights and to protect 
industries that have powerful influence in Washington.
  Mr. DURBIN. Mr. President, I ask the Senator: Did he not say this 
bill has never gone through a committee for hearings and for our close 
scrutiny in determining exactly what the impact would be?
  Mr. REED. Mr. President, the Senator is right. There have been no 
hearings. This bill has been brought to the floor directly. That is why 
it is incumbent for us to take a greater amount of time to look over 
the bill.
  Mr. DURBIN. If the Senator will yield for a further question, if we 
look at existing law in America and at companies, manufacturers, and 
interest groups that are currently exempt from being held accountable 
in a courtroom for misuse of their products or selling a product, the 
only one I can think of is the Price-Anderson law relative to the 
nuclear power industry. There are a lot of different exceptions where 
we have said you can't be sued no matter what you do. Is there a long 
list we are adding to with this legislation?
  Mr. REED. The only exception other than Price-Anderson I can think of 
is General Aviation Aircraft, over 18 years old, that has special 
protection. That is a very narrow protection, and I think it is nothing 
like contemplated in this legislation.
  I must also note those aircraft are supervised by the FAA. There is 
significant Federal involvement in the design and airworthiness, things 
that do not apply at all to a weapon.
  Mr. DURBIN. If I may ask the Senator a further question, if he will 
yield for a question, is it my understanding if we pass this bill that 
individuals--for example, the victims of the District of Columbia 
snipers--who are going after gun dealers who were selling massive 
amounts of weapons which they could not even account for, that we may 
in fact eliminate the lawsuits brought by the surviving families of the 
DC snipers against the gun dealers who were just negligently and 
wantonly selling guns without any consideration as to whether they 
could be misused?
  Mr. REED. That is my understanding. It is not only my understanding, 
but it is the understanding of various counsel who looked closely at 
this legislation and rendered an opinion to that effect.
  Mr. DURBIN. If the Senator would further yield for a question, we had 
two individuals we believe who were absolutely terrorizing the 
Washington, DC area and killing people with sniper rifles. Then we 
identified where that rifle was purchased and found out this Bull's Eye 
dealer--whatever the name was--was not even keeping good records of the 
guns that were being sold. The families of the victims who were killed 
by the DC snipers believe the gun dealer should be held liable and 
accountable for its negligence in selling guns without keeping the 
records that are required. And the Senator from Rhode Island is telling 
me we are bringing a bill to the floor of the Senate to exempt the gun 
dealer who sold the weapon that killed these innocent people in the 
Washington, DC area from liability. Is that what this debate is all 
about?
  Mr. REED. That is my view entirely. That is what this legislation 
will accomplish. It will not only prospectively provide barriers to the 
courts for victims of negligence like this, but it will reach back and 
protect these individuals who apparently--at least arguably--were 
negligent in not properly controlling over 230 weapons, not just the 
one the snipers used, which disappeared.
  Mr. DURBIN. I ask the Senator from Rhode Island: If we are going to 
decide to pass laws here on a daily basis to exempt companies across 
America from being held accountable for their negligence and for 
wrongful conduct, does the Senator from Rhode Island share my belief 
this is going to become an auction process where the Senate, frankly, 
will decide which special interests we will honor on a weekly basis to 
make certain they cannot be held accountable by a jury of their peers 
and by judges so that individuals who were wronged, like the victims of 
the District of Columbia snipers, will eventually find they have no 
recourse? They cannot go to the White House on a gun issue because the 
President is on the side of the gun lobby. They cannot go to Congress 
which is controlled by Members who apparently pay a lot more attention 
to the gun lobby than gun victims. So we are closing the courthouse 
doors to the victims of gun violence by the passage of this 
legislation.
  Mr. REED. I think the Senator is entirely correct. His insight also 
is accurate in that I cannot see that other industries, if we pass 
this, won't come to us and say, We have very valid reasons, too. We are 
being assailed every day by these claims. This sets a very dangerous 
and very unfortunate precedent.
  Mr. President, how much time do I have remaining?

[[Page 2440]]

  The ACTING PRESIDENT pro tempore. Six minutes 20 seconds.
  Mr. DODD. Mr. President, will my colleague yield for an additional 
question? I was curious whether my colleague would share with us what 
problem this legislation seeks to solve. Normally, when you bring a 
bill to the floor you try to solve the problem. I wonder if my 
colleague has any idea of the volumes of lawsuits that have been 
brought against gun manufacturers that the author of this legislation 
is trying to solve.
  Mr. REED. Very few suits have been filed. There is not an epidemic 
throughout the Nation, but probably the best evidence is from the 
companies themselves. Let me make reference to the 10-K report on 
weapons.

       In the opinion of management, after consultation with 
     special counsel, it is not probable and is unlikely that the 
     outcomes of these claims will have a material adverse effect 
     on the results of the operations or the financial condition 
     of the company as managers believe it has provided adequate 
     reserves.

  So in 10 cases, in the statement required to be sworn to under the 
securities laws, Smith & Wesson and other companies have essentially 
said there is not a material problem.
  At this point, because I know there are other speakers who would like 
to respond----
  Mr. DODD. If the Senator will yield for one more additional question, 
I want to make the point that my colleague is absolutely correct.
  Further, is he aware that over the last 10 years there have been 33 
cases brought by municipalities--one in the State of New York--and none 
of them have resulted in conclusions that have been harmful to the gun 
manufacturing industry? With a population of 280 million people, there 
have been 33 or 34 cases in almost 10 years, not one of which has 
resulted in an adverse decision for the manufacturers. Is my colleague 
aware of that?
  Mr. REED. I am aware of it. The Senator is correct. We think there 
are less than 100 cases.
  Mr. DODD. The police chiefs from across the country are urging the 
Senate not to protect gun dealers who arm killers.
  Mr. REED. I am aware of that. In the course of this debate, I hope we 
can emphasize that point.
  I retain the remainder of my time and yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho.
  Mr. CRAIG. Mr. President, before I yield to the Senator from Texas, 
let me make a couple of comments in response to what my colleagues have 
been saying this morning.
  Let's take the gun dealer in Tacoma, WA who is alleged to have sold 
to the sniper who held this area hostage for a time with a gun. His 
license has been revoked. There is a criminal investigation, and BATF 
has asked the Justice Department to file felony charges against the 
dealer. The business is now closed and broke.
  In other words, what I am saying is if this licensed gun dealer 
violated current law, he will be shut down. What we are talking about 
here again is a narrow piece of legislation that deals with civil 
liability--not product liability--and in the case of current Federal 
law it does not touch it. The day in court comes.
  But what the Senator from Connecticut didn't say is even his own gun 
manufacturers and their associations in those some 30-plus lawsuits 
have spent millions and millions of dollars before the court system 
defending themselves, and to date the judges have thrown them out. This 
is called ``death through attrition'' by simply taking to the courts 
and constantly bringing to the courts these kinds of arguments. Here is 
the reality.
  Mr. DODD. Mr. President, will the Senator yield?
  Mr. CRAIG. I can't yield at this time. My time is limited. We are 
going to be on this for days, as the Senator knows. We will debate it 
thoroughly.
  But what he is suggesting is running the risk of losing all of his 
gun manufacturers and the hundreds of jobs that are out there. He is 
concerned about jobs. I think he would be concerned about keeping the 
jobs he has in his home State. That is part of this discussion.
  Mr. DODD. Will the Senator yield?
  Mr. CRAIG. I can't yield. Time is limited.
  Mr. DODD. The Senator made reference to the Senator from Connecticut.
  Mr. CRAIG. I did it fairly. You are here on the floor. We will talk 
about this more in the hours to come.
  Let me yield to my colleague from the great State of Texas.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. Mr. President, I rise to say a few words on our broken 
civil justice system. Today we are debating yet another common sense 
reform proposal, the Protection of Lawful Commerce in Arms Act.
  Despite many recent opportunities, Congress has been unable to enact 
meaningful tort reform, largely because of strong resistance by trial 
lawyers and their allies in this chamber. Just yesterday we failed to 
reach cloture on medical liability reform that would protect our 
mothers and their children. We have been blocked from enacting broader 
medical liability reform.
  And we saw this drama played out last year with the Senate's 
failure--by one vote--to end a filibuster of the Class Action Fairness 
Act and give the bill a vote on the floor. Despite the fact that a 
bipartisan majority stands ready to pass that bill, the obstructionist 
opposition prevents us from acting.
  I believe our civil justice system is badly broken. It serves the 
interests of the few at the expense of the many. It has become almost 
entirely directed not at dealing out justice, but at finding as many 
scapegoats as possible, the wealthier the better.
  It used to be that if you slipped and fell on a sidewalk, you picked 
yourself up and kept on walking. But nowadays, far too many trial 
lawyers continue to feed the idea that instead of getting up again, you 
ought to sue the maker of the sidewalk for making it too hard, the 
maker of your shoes for not putting enough ridges on your soles, and 
everyone in your near vicinity for not rushing to catch you as you 
fell. After all, there is money to be made.
  The current system rewards lawyers and short-changes the real 
victims. There is no doubt that this system of over-litigation cannot 
last without more negative results. And without reform, I fear the 
entire system will collapse under its own weight.
  Today, the Senate has the opportunity to take a step in the right 
direction on this problem, by passing the Protection of Lawful Commerce 
in Arms Act.
  This bill is simple: it provides that lawsuits may not be brought 
against lawful manufacturers and sellers of firearms or ammunition if 
the suits are based on criminal or unlawful use of the product by 
someone else--when a criminal, not the manufacturer, commits a crime.
  Such lawsuits are not intended to find real fault, but to play on the 
emotions of a jury and drive the gun industry out of business, holding 
legitimate, law-abiding manufacturers and dealers liable for the 
intentional and criminal acts of others.
  This bill reinforces years of legal precedent--that individuals and 
businesses are responsible for the harm they case, not for the actions 
of third parties over whom they have no control.
  Many Judges across the Nation recognize the ridiculous nature of 
these suits. The Louisiana Supreme Court struck down New Orleans' right 
to bring such a suit in the face of State law forbidding it, and said 
``this lawsuit constitutes an indirect attempt to regulate the lawful 
design, manufacture, marketing and sale of firearms.''
In dismissing New York State's case last year, a New York appellate 
court observed ``the plain fact that courts are the least suited, least 
equipped, and thus the least appropriate branch of government to 
regulate and micro-manage the manufacturing, marketing, distribution 
and sale of handguns.''
  Thankfully, many States are acting: 33 States have enacted some form 
of legislation to prevent junk lawsuits

[[Page 2441]]

against the firearms industry based on the criminal behavior of others. 
We must follow the lead of the majority of States, and pass this common 
sense measure.
  Don't allow any illusions about the intentions of the people involved 
in these suits. At an American Bar Association symposium in 1999, one 
of the plaintiffs' attorneys for the antigun lawsuits explained that 
the attorneys had read the Dun & Bradstreet reports on the firearms 
companies, estimated how much the companies could spend defending 
themselves against litigation, and then filed so many cases in so many 
jurisdictions that the gun companies would not be able to spend the 
money to see the cases through to a verdict. The irresponsible tort 
community is simply looking for another law-abiding business to prey 
on.
  And even if all the gun companies in America were put together, they 
would not constitute a single Fortune 500 company--so the gun companies 
are much more vulnerable to abusive litigation than deep-pocketed 
giants such as the New York Times.
  The real way to stop gun crime in America is simple: those who abuse 
the constitutional right to keep and bear arms by using firearms to 
commit crimes must be aggressively prosecuted and punished. When I was 
Attorney General of Texas, I joined with then-Governor Bush to launch a 
program we called Texas Exile. That program provided local prosecutors 
with the funds to get more than 2,000 guns off the streets and to issue 
more than 1,500 indictments for gun crimes, resulting in almost 1,200 
convictions in its first 3 years of existence alone.
  And when President Bush came to Washington, he built upon our success 
in Texas by making Project Safe Neighborhoods one of his top 
priorities. Project Safe Neighborhoods expands on existing programs 
that target gun crimes in each State. It is a nationwide commitment to 
reduce gun crime in America by networking these existing local programs 
and providing those programs with the additional tools necessary to be 
successful.
  The Bush administration has committed more than $900 million to this 
effort over three years, using funding to hire new Federal and State 
prosecutors, support investigators, providing training, distribute gun 
lock safety kits, deter juvenile gun crime, and develop and promote 
community outreach efforts as well as to support other gun violence 
reduction strategies. And Texas has seen great success with the 
integration of Project Safe Neighborhoods with the existing Texas Exile 
infrastructure.
  These are the kinds of steps that get real results, not ill-
intentioned frivolous lawsuits. I question the integrity of any system 
that would reward such abject agreed. We need to work in this body to 
fix our broken civil justice system, and this bill is a good place to 
start.
  I am somewhat bemused by the arguments I have already heard this 
morning on this motion to invoke cloture. In fact, we want to have a 
debate. Those who oppose even having a debate are, I guess, not going 
to allow it to happen. I hope they are not successful in blocking 
debate. It is healthy to have a debate.
  I am bemused by the suggestion that this is a narrow bill directed 
toward special interests. Yesterday, we had a narrow bill to protect 
the special interests known as pregnant women and children. However, 
the trial lawyers prevailed and we were unable to get that commonsense 
tort reform measure on the floor for debate. I submit that the 
suggestion is misguided that this is a special interest piece of 
legislation. This is in the public interest.
  I suggest the worst thing about the arguments we hear from the other 
side of this debate is they are misdirected. In other words, they 
contend this bill would immunize lawsuits against gun manufacturers for 
what is a lawful activity. The fact is, there is a shrine in our 
Constitution, the right of the people to keep and bear arms. What they 
are trying to do would have the effect of impeding and impairing that 
constitutional right because, as Senator Craig has pointed out, there 
have been many lawsuits filed against gun manufacturers for the very 
fact of making a lawful product, none of which, so far as I understand, 
has been successful but which are destroying these companies which are 
in the business of manufacturing a lawful product, destroying jobs, and 
impairing ultimately the constitutional right of citizens, people like 
you, me, and others in this room from owning firearms to protect our 
homes and our property, our families for use in sporting events, for 
hunting, and other lawful and decent activity.
  The focus of the opponents of this bill is totally misguided. What we 
ought to focus on is the criminals who use firearms illegally to commit 
crimes. In fact, I have had a little experience in this area as 
attorney general of Texas. With the cooperation of then-Governor Bush, 
we created a program in Texas called Texas Exile. I wish we could claim 
we originated the idea but we borrowed the idea from Richmond, VA, 
something called Project Exile, which was a cooperative effort of 
local, State, and Federal law enforcement officials to target criminals 
who use guns to commit crimes and convicted felons who could not even 
legally own a firearm. The great thing about that was, No. 1, it was so 
successful; No. 2, it was not a wedge issue which, clearly, there is an 
attempt to inject wedge politics in this debate. But it was an issue 
which everyone could agree: The NRA, the gun control folks, everyone 
came together and said, yes, that is what we ought to do. Let's focus 
on the criminals who misuse this product.
  Indeed, in 2001, Texas led the Nation in the number of criminal 
defendants who were indicted for weapons violations in Federal court. 
In 2000, there were 757 in that year alone, which was almost double the 
number of indictments in 1999. This amount was greater than the number 
of defendants indicted on similar charges in the States of New York and 
California combined.
  How were we able to use the existing criminal law in a way that made 
our streets and our communities and our States safer? We simply 
enlisted the help of local law enforcement to work with Federal law 
enforcement authorities so when a criminal was caught illegally 
possessing a firearm--illegal because a felon cannot legally possess a 
firearm--or someone under a protective order--it is a Federal offense 
to carry or possess a firearm when you are under a protective order--or 
someone who simply used a gun to commit a bank robbery or any other 
offense, we focused on the gun possession portion of that and were 
successful in leading the Nation in the number of prosecutions. That 
sends a very powerful message that if you carry a gun illegally or if 
you use a gun illegally to commit a crime, then we are coming after you 
with everything that the law allows.
  It is a powerful deterrent to the sort of illegal conduct that causes 
the harm that the opponents of the bill--and I grant their good faith; 
I think they believe in good faith that what they are proposing is a 
path to a good result, a sound result--that is reducing injuries, 
reducing death, but it is misguided. All this does is encourage 
lawsuits against a manufacturer of a legal product when someone 
criminally misuses that product to cause another person harm.
  As the Senator from Idaho has noted, this is death by 1,000 cuts or 
death by 1,000 lawsuits, so to speak, because anytime a gun 
manufacturer is sued, even with a frivolous lawsuit, they have to hire 
a lawyer, they have to defend that case at greater expense which 
threatens their economic viability which in turn threatens the jobs of 
the people who work there in that company.
  I wish we could have a broader debate on commonsense tort reform 
generally, but we have seen what happens when we try to raise these 
issues. We could not even get cloture on a class action reform bill. We 
have not been able to bring up asbestos reform which is damaging a lot 
of good job providers in this country and not benefiting the people who 
are truly sick but only the lawsuit industry which benefits from 
churning the cases without really benefiting the people who need 
compensation.
  We found in almost every instance--medical liability, class action 
reform, or asbestos reform--we are simply not

[[Page 2442]]

able to even get a debate. We cannot even get cloture because we cannot 
find 60 people in the Senate who are willing to stand up and say this 
is a serious problem. It is raising the costs of health care. It is 
bankrupting companies in the case of asbestos. It is an abuse of the 
class action system in the case of class action reform where lawyers 
get millions and consumers get a coupon.
  So the strategy has been, and it is a good strategy, to try to 
identify certain types of cases. Yesterday it was obstetrical liability 
cases which have threatened the ability of pregnant women to find 
doctors to simply deliver their babies.
  I recounted in my own State in 154 different counties a woman cannot 
even find a doctor to deliver her baby, an obstetrician, because people 
are leaving the practice. It is pricing out of reach health care 
liability insurance, putting people out of business, hospitals out of 
business, and we are simply seeing the tail wag the dog in each of 
these areas. The tail seems to be the special interest groups that like 
the status quo, which is a broken civil justice system that does not 
serve justice.
  I commend the Senator from Idaho for bringing up this bill which 
admittedly is a narrow bill. Boy, I wish we could have a broader debate 
on tort reform, commonsense tort reform generally. When we talk about 
what causes job loss in this country, it is the regulation by 
litigation, it is the tort tax that imposes additional costs on 
consumers and discourages innovation and entrepreneurs in this country. 
We are not talking about locking the courthouse door and denying 
someone access to justice. I believe strongly we must retain meaningful 
access to justice for anyone who is harmed by the wrongful conduct of 
any other person. But the system right now benefits the few at the 
expense of the many in ways that I doubt consumers really understand 
because it adds costs to their products, and it makes it harder for 
entrepreneurs and small businesses to open their doors and to hire 
people to allow them to provide for their families.
  So here we are, rather than taking on a broader tort reform bill, we 
are left with a narrow bill. I congratulate the Senator from Idaho for 
it. I believe we should protect manufacturers of lawful products whose 
products are misused by criminals. Let's focus on the criminals, not 
the people who are providing jobs and are producing a lawful product.
  With that, I yield back any remaining time I have to the Senator from 
Idaho.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I thank the Senator.
  May I inquire of the time remaining for both sides?
  The ACTING PRESIDENT pro tempore. The majority has 5 minutes 40 
seconds. And 4 minutes 17 seconds are remaining for the minority.
  Mr. CRAIG. I will reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. REED. Mr. President, I yield such time as he may consume to the 
Senator from Massachusetts.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. Will the Chair notify me when I have a half minute left?
  Mr. President, at a time when capitulation to special interest groups 
is a major issue in the Presidential election campaign, it is difficult 
to believe that the Republican leadership in the Senate is serious in 
asking the Senate to accept this flagrant special interest legislation. 
I urge my colleagues to break the stranglehold of the gun industry and 
gun dealers and oppose proceeding to this shameful legislation.
  The list of issues that demand the Senate's immediate attention is 
long. Unemployment is a crisis for millions of citizens. Retirement 
savings are disappearing. School budgets are plummeting. College 
tuition is rising. Health care costs and prescription drug costs are 
soaring. Federal budget deficits extend as far as the eye can see. The 
war in Iraq has brought new dangers, imposed new costs, and more and 
more American lives are being lost each week.
  The well-being of most American families has declined at an alarming 
rate in the past 2 years. We can and should be acting to meet these 
challenges. Instead, the Republican leadership wants to spend time on 
this flagrant pro-special-interest, anti-victim, anti-law-enforcement 
legislation to give broad legal immunity to the gun industry.
  This bill's proponents claim they are targeting ``frivolous 
lawsuits.'' But we all know that its real effect would be to prevent 
victims of gun violence--police officers, innocent bystanders, and 
their families--from pursuing valid claims in State and Federal courts.
  This special interest bill is a direct attack on the interests of law 
enforcement. Police Chief William J. Bratton of the Los Angeles Police 
Department recently told it like it is:

       To give gun manufacturers and gun dealers immunity from 
     lawsuits is crazy. If you give them immunity, what incentive 
     do they have to make guns with safer designs, or what 
     incentive do the handful of bad dealers have to follow the 
     law when they sell guns.

  The bill would prevent the families of the victims of the DC snipers 
from holding accountable the gunshop in the State of Washington that 
somehow ``lost'' the assault rifle that was used in the attacks. Under 
current law, if negligence is proved, the families of the victims are 
entitled to seek redress. If this bill is enacted, the gunshop will be 
totally immunized from liability, and the families' lawsuits will be 
thrown out.
  Unbelievably, the gun industry and the tobacco industry are the only 
two consumer industries that are not subject to Federal consumer safety 
regulations. America does more today to regulate the safety of toy guns 
than real guns, and it is a national disgrace.
  The gun industry has worked hard to prevent Federal consumer safety 
legislation. At the same time, it has conspicuously failed to use 
technology to make guns safer, and it has attempted to insulate itself 
from its distributors and dealers, once the guns leave the factory.
  Now it wants to become the only industry in the Nation exempt from 
lawsuits. The overwhelming majority of Americans believes that gun 
dealers and gun manufacturers should be held responsible for their 
irresponsible conduct, like everyone else.
  The ACTING PRESIDENT pro tempore. The Senator has 30 seconds 
remaining.
  Mr. KENNEDY. Surely, the Republican leadership has higher domestic 
priorities than providing legal immunity for the gun industry. Surely, 
we can do better than debate this extraordinarily reckless and 
unprecedented special interest legislation.
  I withhold the remainder of my time.
  The ACTING PRESIDENT pro tempore. Who yields time?
  There are 16 seconds remaining for the Senator from Rhode Island and 
5 minutes 13 seconds remaining for the Senator from Idaho.
  Mr. CRAIG. Mr. President, if the Senator wants to make his closing 
comments before I make mine, what time does he have left?
  The ACTING PRESIDENT pro tempore. Sixteen seconds.
  Mr. CRAIG. All right. It is obvious, Mr. President, by those who have 
already come to the floor, that this will be a very spirited debate. 
The great tragedy of debates such as this is that they oftentimes fail 
to read the bill before them, and they make the kinds of salient 
political statements that have nothing to do with the legislation at 
all.
  I invite my colleagues, on S. 1805, to go to section 4 of the bill 
and see how narrowly we have crafted this bill to go directly at civil 
lawsuits that involve a third party criminal act and trying to reach 
back through the courts and back through the law to say to a licensed, 
legitimate, legal firearms dealer or a licensed, legal gun manufacturer 
that they have to be responsible for the criminal act of another. That 
simply has not been the basis of law in our country ever, nor should it 
be allowed to be the basis of law today.
  But if that gun manufacturer and if that licensed gun dealer violate 
civil

[[Page 2443]]

law, violate the law of the land, then this bill does not hold them 
harmless. That is the crux of the issue. That is what is important 
about this legislation.
  There are a lot of ways to achieve a political goal in this country. 
Many have found that you can file frivolous and junk lawsuits in the 
court, and you can slowly but surely bleed down those who you file them 
against because they have to come and defend themselves, even though 
the courts constantly throw out these lawsuits. Hundreds of millions of 
dollars have already been spent by legitimate gun manufacturers that 
make those fine weapons for our men and women in Iraq, that make those 
fine weapons for our civil law enforcement officers wearing the blue 
uniforms on the streets of America.
  They would say to them: No, we are going to bust those companies. And 
guess where that cop is going to get his gun. From China or Yugoslavia. 
Or our men and women in uniform are going to have to rely on foreign 
gun manufacturers because we have bankrupt and thrown out of this 
country those acting under the law in a legitimate way.
  That is what S. 1805 is about. It is not about the political agenda 
of many. It is about what we have said in this country is a legitimate 
product. We even said so in the Constitution. Most other products we do 
not talk about in the Constitution. They were not invented. But we did 
speak to guns and their value in this country. Now we are saying: No, 
we are going to play the political game. We are going to drag them 
through the courts. And they are going to spend all kinds of money to 
do so.
  I am not willing to hold anybody harmless who violates the law. I am 
not willing to hold anybody harmless who allegedly acts in a criminal 
way. Let's find out if they did. The courthouse door is not locked by 
S. 1805. The courthouse door is still open. This law will be applied in 
arguments before the court. A judge will make the determination of 
whether S. 1805 fits or it does not fit. Was the licensed dealer or the 
gun manufacturer acting in a legal way or acting against current 
Federal law? That is how narrowly we have defined it.
  Even the minority leader, Senator Daschle, has joined with me to 
clarify and refine this bill even more--he will be to the floor to 
speak to that issue--as we worked to make sure we are on point 
directing this specifically at those who continually play the game at 
the legal bar of this country to file the frivolous or the junk 
lawsuits to drive a legitimate operating American company and industry 
out of business.
  I hope my colleagues will come now and vote on the cloture motion to 
allow us to proceed so we can fully debate the bill, bring the 
necessary amendments that others will have for or against the purpose 
of this legislation. We will vote them up or down and move it through 
the Senate. That is our job. I know there are a lot of issues that are 
important. But there are a lot of Americans who view this as a very 
important issue for our country.
  I yield back the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. REED. Mr. President, the legislation before us is a benefit to 
special interests, the gun lobby. It will deny individual Americans the 
right to go to court to challenge the conduct of individuals who 
negligently or allegedly negligently sold weapons. It would be a great 
distortion of the law. I hope my colleagues will resist this 
legislation.


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. The hour of 10:30 having arrived, 
under the previous order the clerk will report the motion to invoke 
cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 363, S. 1805, a bill to prohibit 
     civil liability actions from being brought or continued 
     against manufacturers, distributors, dealers, or importers of 
     firearms or ammunition for damages resulting from the misuse 
     of their products by others.
         Bill Frist, Orrin Hatch, Mitch McConnell, Larry Craig, 
           Jim Talent, John Ensign, John Cornyn, Conrad Burns, 
           Saxby Chambliss, Craig Thomas, Don Nickles, Rick 
           Santorum, Trent Lott, John Sununu, Mike Crapo, Lamar 
           Alexander, Wayne Allard.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 1805, to prohibit civil liability actions from 
being brought or continued against manufacturers, distributors, 
dealers, or importers of firearms or ammunition for damages resulting 
from the misuse of their products by others, shall be brought to a 
close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Georgia (Mr. Miller) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay''.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The yeas and nays resulted--yeas 75, nays 22, as follows:

                      [Rollcall Vote No. 16 Leg.]

                                YEAS--75

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Daschle
     Dayton
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feingold
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kohl
     Kyl
     Landrieu
     Leahy
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Rockefeller
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--22

     Akaka
     Boxer
     Cantwell
     Clinton
     Corzine
     DeWine
     Dodd
     Durbin
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Kennedy
     Lautenberg
     Levin
     Mikulski
     Murray
     Reed
     Sarbanes
     Schumer
     Wyden

                             NOT VOTING--3

     Edwards
     Kerry
     Miller
  The ACTING PRESIDENT pro tempore. On this vote, the yeas are 75, the 
nays are 22. Three-fifths of the Senators duly chosen and sworn having 
voted in the affirmative, the motion is agreed to.
  Mr. KENNEDY. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so 
ordered.
  Mr. CRAIG. Madam President, I hope now, with a vote of 75 to 22, we 
could move on to the bill. Certainly, it is our intent to allow this 
bill to be debated fully and for amendments to be offered. Time is 
running. Some Senators spoke this morning to the urgency of time to get 
on to other issues. Certainly, that is important to all of us. So I 
hope we would be able to do so. I hope now that Senators could come to 
the floor with their arguments, but most importantly I hope we could 
move to the bill itself.
  As you know, under the cloture rule there would be allowed 30 hours. 
I hope those in opposition would not take that 30 hours and allow us to 
get to the bill. What we are trying to do in S. 1805 is very narrowly 
go through the law and allow law-abiding gun manufacturers and law-
abiding dealers to be exempt from the kind of harassment and

[[Page 2444]]

junk lawsuits that we have now seen filed in over 30-plus different 
venues over the last several years. All those cases then brought to 
court were thrown out of the court, and the reason was quite simple. 
The judge looked at them and said: This lawsuit is of no value.
  Here you had a law-abiding manufacturer, adhering to the laws of the 
United States, making a legitimate product, and that person cannot be 
responsible for a third party action that might have been a criminal 
action and the trial bar trying to reach through that person to a 
legitimate gun manufacturer or to a licensed gun dealer.
  In doing so I believe these suits were intended, of course, to drive 
the gun industry out of business by holding manufacturers and dealers 
liable for the intention and the criminal acts of that third party over 
whom we all know they have had absolutely no control.
  Lawsuits have been filed in multiple States with demands of massive 
monetary damages on a broad and varying range of injunctive relief 
relating to the design, manufacture, distribution, marketing, and the 
sale of firearms. These demands, if granted, would create major 
judicially imposed restrictions on interstate commerce in firearms and 
ammunition.
  Let me, though, say with that comment, this deals with civil cases, 
not product liability. If a gun malfunctions and someone is damaged, or 
if the gun manufacturer and the gun dealer were violating civil law, 
then, of course, this issue that we are debating today has no value. We 
have clearly narrowed it and cleanly gone after the very kind of 
lawsuit that we have, as I mentioned, seen over the last several years.
  The bill does something very important to the underlying principles 
of our country. It reinforces centuries of legal precedent based on 
individual responsibility, not responsibility for actions of third 
parties. Law is based on the act of the individual, and that ought to 
be the basis of all law. Yet what these lawsuits would argue is that 
somehow a legitimate, legal manufacturer of a product is liable for the 
way the product is used. I have oftentimes said: What about an 
automobile? Certainly that is a legitimate product on the road. What 
about an automobile dealer licensed in his State to sell automobiles? 
If someone takes the automobile designed to give ultimate pleasure and 
to move people from one point to another and they get drunk and go out 
and get in their vehicle and kill someone, does the trial bar then say 
that it is the automobile dealer and the automobile manufacturer who 
are liable for the drunk driver who killed someone? That is what they 
are trying to say and that is exactly the fundamental argument here. 
That is why we think it is time this Congress deal with it in a 
forthright way.
  The House argued this issue over a year ago and, by a 2-to-1 vote 
said: No, we are not going to let this kind of lawsuit go forward.
  But they did something our bill also does. We didn't lock the 
courthouse door. Some will argue this simply locks any person out of 
the courthouse who might place an argument against a gun manufacturer 
or licensed firearm dealer. The answer to that is absolutely not. This 
will be a basis in the law by which lawyers will argue before a judge 
whether these kinds of charges can legitimately be brought based on the 
evidence at hand. The judge will then make the decision based on the 
law as to how we proceed.
  Many judges, as I have mentioned, have outright rejected these suits 
already. They literally clutter up the judicial system. Antigun 
activists are trying to destroy tort law by creating totally new and 
expansive theories of liability to win restrictions that have been 
rejected in the legislative process. What does that mean? If you can't 
win it on the floor of the U.S. Senate or in the legislatures of your 
States, then you get a good attorney and you go before the court and 
try to argue it there and establish some kind of judicial precedent.
  I have already suggested that we do not lock the courthouse door, 
that we simply allow the argument to be placed. We think that, of 
course, is important to all citizens, having their day in court and 
their right to argue it.
  Would this bill affect several high-profile cases such as the lawsuit 
against a gun dealer in Takoma, WA, a store where the DC snipers, John 
Muhammad and Lee Malvo, got their rifle?
  Well, it won't, and here is the reason it won't. In the case of that 
situation, Malvo himself said he stole the gun.
  What we are also finding is that this particular gun dealer may not 
have operated in the most legitimate of ways, even though the case will 
not be brought.
  There is a criminal investigation underway. The BATF has jerked the 
license of the gun dealer. The business is now out of business, and it 
is my understanding that the BATF has asked the Justice Department to 
file felony charges against the gun dealer. Even within that argument, 
you have the contradiction of the person who did the shooting saying: I 
stole the gun. And, of course, you have a gun dealer who may have 
operated illegally. Certainly that is a case in action, although what 
is important is this particular bill won't affect that. If that gun 
dealer in Takoma, WA, is found liable, if he acted in a criminal way, 
if he mismanaged his records that he must keep in a way that distorted 
what he had and guns were stolen and he never allowed that to be known, 
then he is at risk.
  I am not a lawyer. So I can't go to the next step of that argument, 
and I will not. But what I do know and what we have insisted on in the 
crafting of S. 1805 is that it be very straightforward and very clear. 
Senator Daschle has incorporated within this an amendment that I have 
accepted. He may bring some fine-tuning to the floor. He, too, believes 
we need to deal with this issue. But he is fine-tuning to make sure 
what I just said is absolutely clear in the law. There will be no 
arbitrary way for someone to wiggle through the law.
  Does the bill wipe out century-old tort law principles? The answer is 
quite simply, no. The bill reinforces the century-old legal tenet of 
personal responsibility that underlies all of our judicial system. 
Individuals and businesses are responsible for the harm they cause.
  Let me repeat that. Individuals and businesses are responsible for 
the harm they cause--not for the action of third parties beyond their 
control.
  The bill protects the rights of truly injured parties. The exceptions 
allow for legitimate and recognized causes of action. Manufacturers or 
sellers of firearms or ammunition could still be sued if they violated 
Federal or State law, manufactured defective products, violated 
contracts or warranties, or knowingly sold guns to irresponsible and/or 
dangerous individuals.
  The law is still out there. The law still provides recourse for an 
individual who would fall within those categories.
  But to suggest that the actions of a third party, or the criminal act 
of a third party, is the opportunity to reach through the court by the 
trial bar to go after the manufacturer of a legitimate legal, law-
abiding approach or product simply should not be allowed.
  Most importantly, antigun activist lawyers are the ones who are 
trying to distort the law by fabricating new theories for imposing 
liability only after having repeatedly failed to cast their political 
agenda right here or in our State legislatures.
  Just a few years ago, they admitted this when their legislative 
allies introduced a bill that would have expressly created a new 
Federal cause of action against a manufacturer, a dealer, or importer 
who knew or reasonably should have known that its design, 
manufacturing, marketing, importation, sale, or distribution practices 
would likely result in gun violence.
  How can anyone suggest that any action of the sale of a gun, if it is 
done legally, results in violence? That is the reality of what we dealt 
with.
  There are a good many more issues that we will have an opportunity to 
discuss in the course of this.
  It looks as if Senator Kennedy is on the floor to debate the bill.
  I reserve my time. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page 2445]]

  The assistant journal clerk proceeded to call the roll.
  Mr. KENNEDY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Madam President, just prior to the vote I addressed the 
Senate on a tight timeframe pointing out my concerns about why we were 
taking this action at this particular time. I have had the opportunity 
to travel the country.
  We just ended the February recess where we had a chance to get 
around, as well. One of the things that has struck me over the course 
of those travels is the overwhelming concern working families have over 
the state of the economy. It is reflected in whether they are going to 
be able to retain their job; if they have a new job, the fact it does 
not pay as well as the old job; they are concerned about the cost of 
health care, the cost of prescription drugs; and concern over the 
increase of tuition. These were the issues.
  One concern I have meeting at this time is we are considering special 
interest legislation. We have heard a great deal both by the President 
and during the course of the election. Hopefully, we can free ourselves 
from special interest legislation.
  Our Republican friends offer this legislation, put a cloture motion 
down immediately, limit the time for any debate and discussion that 
provides very special interest legislation for the gun manufacturers. 
That must concern millions of Americans, certainly those who are 
concerned about the state of the economy, those concerned by the 
failure of the Senate to increase minimum wage over 7 years. We have 7 
million Americans making $5.15 an hour who have not had a raise for 7 
years and we are considering special interest legislation to protect 
just a single industry, the gun manufacturing industry.
  There are tens of thousands of Americans losing their unemployment 
compensation every single week yet we are not debating the question of 
the extension of the unemployment compensation--which is in surplus, 
close to $18 billion. Senator Cantwell has an amendment to extend that 
for a temporary period of time, give some relief for all of the workers 
who cannot find work.
  Finally, the administration admits we will not have good jobs, good 
pay, good opportunities for the future. Finally, the President has 
agreed with that. He differs with his Council of Economic Advisers. For 
weeks we heard from the other side of the aisle: The economy is back. 
And now the President agrees the economy is not back.
  We do not need much Senate time on the issue of a minimum wage 
increase. I would agree to an hour, half an hour on either side. Let's 
send to American workers working on the lower rung of the economic 
ladder a message that help is on their way. It will benefit primarily 
women because they are primarily the recipients of the minimum wage. It 
will go to mothers and children because many of the women have 
children. It is a children's issue, a women's issue. It is a minority 
issue because most of the minimum wage workers are men and women of 
color. It is a civil rights issue, a children's issue, and a women's 
issue. Most of all, it is a fairness issue.
  People wonder why the Senate doesn't do something about increasing 
the minimum wage. We have the majority of votes but our Republican 
friends will not let us vote.
  We hear the pious statements--look who is controlling the time--and 
can't we go ahead with the Nation's business. The Nation's business is 
increasing the minimum wage. No, no, we cannot deal with that this 
morning. No, we are not going to deal with that. We will have special 
interest legislation for just one industry--that is what the other side 
says--but not for the 7 million people who would be affected.
  What about those in need of unemployment compensation? These men and 
women have paid into the unemployment compensation. Now they have lost 
their jobs through no fault of their own through basic mismanagement of 
the economy. They lose their jobs and as a result they have difficulty 
paying their mortgage, putting food on the table, making sure their 
children are going to be looked after. It is not because of them. They 
are hard-working Americans. They have a record of employment.
  Under the Cantwell amendment, we extend the unemployment 
compensation. We did that in other times of our history. We did it in 
the previous Democratic administration before that Democratic President 
had created 2 million jobs. We still provided for those who had long-
term unemployment, that they would be able to get unemployment 
compensation even after more job were created.
  Now we have the loss of 3 million jobs, a sputtering return of 
78,000, a total loss of 2 million jobs, and they are out there and 
losing every single day whatever unemployment insurance they have. We 
say, let us at least provide some temporary help.
  Finally, our President has agreed we are not going to get the kind of 
recovery and create the 2.6 million jobs the Council of Economic 
Advisers said would occur. They finally admit that. And we are 
stonewalled to not work on unemployment in the Senate. No, let's look 
after one industry, not the tens and thousands and millions of hard-
working Americans who have worked hard, played by the rules and need 
enough to be able to continue to pay their mortgages and look after 
their families. No, no, no, we cannot do that. It might take all of an 
hour. Everyone in this body knows what the issues are. We have to do 
special interest legislation.
  That is not even the end of it. We have the clock ticking on 
unemployment. More than half of the unemployed adults have had to 
postpone medical treatment, 57 percent; or cut back on spending for 
food, 56 percent. One in four, 26 percent, has had to move to other 
housing or move in with friends or relatives; 38 percent have lost 
telephone service; 22 percent are worried they will lose their phone. 
More than a third, 36 percent, have had trouble paying gas or electric 
bills.
  One of the principal reasons for the increase in bankruptcy is 
because of this kind of challenge. Our Republican friends want 
bankruptcy reform in order to expedite the pursuit of these unemployed 
people who are having difficult times paying their bills and mortgage. 
That is what the bankruptcy bill is all about: make the Federal 
Government collection agencies for special corporate interests. That is 
why they are trying to rush it through. And more and more are going 
into bankruptcy.
  Unemployment benefits should be extended with the economy still down 
over 2 million jobs. This chart reflects where we are today, with a 
total loss of 2.4 million jobs. These figures are from the Department 
of Labor. The Republicans say, no, no, we have something more important 
to deal with, special interest legislation.
  This chart shows during the previous administration, they created 2.9 
million jobs, yet they still had the extension of the unemployment 
compensation for those out of work who had paid in over a long time. 
The unemployment compensation fund is in surplus, $17 billion. It will 
cost $7 billion and they say it will put a strain on the fund.
  This is what is happening, the unemployment impact on the family. 
More than three in four, or 77 percent, of the unemployed Americans say 
the level of stress in their family is increased. I don't know how you 
put dollars and cents on that figure. Everything is dollars and cents 
around here. This is the kind of pressure and tension and anxiety these 
families are under, the 2.5 million.
  Two-thirds, or 65 percent, of those with children have cut back on 
spending for their children. Those are working families trying to 
provide for their children clothes, or perhaps a birthday present, 
perhaps an outing, taking them to a baseball game in the spring, a 
hockey game or a basketball game in the winter. That is not there for 
any of these families.
  Twenty-six percent say another family member has had to start a job 
or increase their working hours. Those are

[[Page 2446]]

basically the women, the mothers, when they can find it. All those 
mothers are working twice as hard now as they did 20 years ago.
  Twenty-three percent have had to interrupt their education. Imagine 
that, working families, the unemployed--2.4 million of them--and almost 
a quarter of their children have had to interrupt their education 
because their parents are unemployed through no fault of their own.
  That is the pressure they are under. Do you think we can get an 
extension of the unemployment compensation? No, no. We have to deal 
with this special interest legislation.
  This is the overall view of where we are in our country now. We have 
13 million children who are going hungry. We have 8 million Americans 
who are unemployed. We have the 8 million Americans who will lose 
overtime pay under the Bush proposal. This is another interesting 
issue. There is no increase in the minimum wage, there is no extension 
on unemployment compensation for workers, and now we have the proposal 
to eliminate overtime for 8 million Americans.
  Well, you have 13 million children who are going hungry, and the 
millions who are without work.
  We have 7 million low-wage workers waiting 7 years for an increase in 
the minimum wage. There are 3 million more Americans in poverty--3 
million more Americans in poverty--since President Bush took office. 
Are we addressing this issue today? Oh, no, no, no, we do not have the 
time to do that. We have to rush through this special interest 
proposal. We do not have time out here on the floor of the Senate to 
address the issues of those who are living in poverty, or the 90,000 
workers a week--90,000 workers a week; think of that: 90,000 workers a 
week.
  Most of us are always impressed during Sunday football games that we 
watch in our stadiums when they have that incredible view from the 
airplanes or balloons or whatever that shows the stadiums packed with 
people. They will say: 89,000 people, 75,000 people. I guess it is 
78,000 out in Lambeau Field out in Wisconsin, which I have been to 
recently. People look out there and they see the mass of people out 
there: 80,000, 90,000 people. Think of that number of people every 
single week--every single week--losing their coverage of unemployment 
compensation.
  I want to mention one other area because I see good friends in the 
Chamber. My friend and colleague from Iowa will be offering an 
amendment on overtime. I know the Senator from the Washington, Ms. 
Cantwell, will be here soon to talk about her amendment on the 
unemployment compensation.
  But one of the cruelest, cruelest, cruelest suggestions that has been 
made by any administration in the time I have been in the Senate is to 
effectively do away with overtime pay for 8 million Americans and for 
those who receive training in the Armed Forces and acquire special 
skills.
  Now let us think about the administration's proposal and who they are 
talking about. Who would be affected by the proposal the administration 
is talking about? Shown on this chart is a list of the professions that 
would lose the coverage for overtime pay.
  The idea of a 40-hour workweek has been at the heart and soul of our 
whole country's ethic. Certainly from the late 1930s it has been a part 
of it. There has been a recognition that if you are going to require 
people to work overtime, you are going to pay them time and a half. 
That has been accepted by Republicans and Democrats alike since the end 
of the 1930s. But not under this administration. They are talking about 
limiting overtime.
  Who will be the groups that will be affected by the elimination of 
overtime? This is the group: It is going to be the policemen, it is 
going to be firefighters, it is going to be the nurses, among others. I 
mention policemen and firefighters and nurses because, as we know, they 
are the backbone of homeland security. If we are going to have a 
problem with chemical or biological warfare, it is going to be those 
policemen and firefighters and nurses who are going to be the first 
responders who are going to risk their lives locally in those 
communities to try to contain this kind of threat. They are the ones 
who are going to be on the front lines. Yet those are the very people 
who this administration feels are being overpaid. Even the police force 
that is here in the Senate in many functions would be affected.
  There are a lot of things that are troubling in the United States of 
America today we should be and must be concerned about. I mentioned the 
number of children who are living in poverty and what is happening to 
these families who have seen their jobs outsourced. Many of these 
things we ought to be working on. But one of the great problems in our 
country today is not that our policemen, firefighters, and nurses are 
being overpaid. I have not heard anyone say that except the President 
of the United States or the Secretary of Labor. I have not heard anyone 
come up to me back in Massachusetts saying: You know something, 
Senator, those policemen and firefighters and nurses are being 
overpaid. Do something about it. Do something in Washington about it. I 
don't hear that. There is no question that some manufacturers believe 
that and feel that and have asked the administration to do something 
about it. No question about that. And they did, the administration has. 
I will give you an example.
  But let me just conclude on this chart--police officers, nurses, 
firefighters. The interesting part is that women, by and large, are 
mostly in these areas and professions. This reduction in overtime 
primarily affects women in our workplace.
  But something that just makes this extraordinary--and has been 
debated here on the floor of the Senate--this proposal was rejected by 
the Senate of the United States, rejected by the House, but this 
administration feels sufficiently strong about this issue that they 
insisted the Harkin-Kennedy language be taken out of the bill in the 
middle of the night behind closed doors--behind closed doors--at the 
insistence of the major manufacturing companies in this country. And we 
are going to face that. We are going to be facing that in these next 
few weeks as we have the reauthorization to do it.
  Now let me point out something on the rates that have been proposed. 
These are the ones that have been proposed on the overtime. Listen to 
this. And I am talking about the kinds of skills, cumulative skills 
that will make people ineligible for overtime. I am reading right from 
the Federal Register, and I will include the appropriate reference in 
the Record:
       However, the word ``customarily''--

  That means the definition about the skills that will be excluded--

     means that the exemption is also available to employees in 
     such professions who have substantially the same knowledge 
     level as the degreed employees, but who attained such 
     knowledge through a combination of work experience, training 
     in the armed forces. . . .

  There it is, the Federal Register, volume 68, No. 61, Monday, March 
31, administration's proposed regs. If you get the skills, training in 
the Armed Forces, if you happen to be over in Iraq today or Afghanistan 
and you have gone to some training programs in order to provide greater 
protection for your fellow troops in fighting for our country, maybe a 
member of the National Guard or Reserve, you get those kinds of 
training functions, you come back here, you are out of the Guard, you 
return to work, and your boss says: Hey, these new regs say you got the 
training in the Armed Forces. Too bad. You are not getting your 
increase.
  That is what this says. A number of us raised this in the earlier 
debate. The Secretary of Labor in January sent a letter to the Speaker 
of the House, Dennis Hastert, saying--and I will include the letter in 
the Record; it is only a page and a half long--

       I want to assure that your military personnel and veterans 
     are not affected by these proposed rules by virtue of their 
     military duties or training.

  But that training in the Armed Forces can make a worker an overtime-
ineligible, professional employee. This is new language. It is not in 
the current regulation, and its only purpose is to take away overtime 
for veterans.

[[Page 2447]]

  Why don't they just drop the language and free us from any kind of 
ambiguity? Just say, this was brought to our attention, we are going to 
drop it, instead of trying to explain it away.
  Continuing from the letter:

       First, the Part 541 ``white collar exemptions'' do not 
     apply to the military. They cover only the civilian 
     workforce.

  No one is complaining that the rule affects the military workforce. 
The issue is the veteran who leaves the military to work in the 
civilian workforce and would lose overtime protections. They are rather 
clever. They say the white-collar exemptions don't apply to the 
military. No one is suggesting it applies to the military. This letter 
is an attempt to mislead. It is very clear. If the administration does 
not intend to apply these overtime regulations to those who have been 
in the service, they ought to just eliminate it.
  I ask unanimous consent to print the letter from which I have quoted 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Secretary of Labor,

                                     Washington, January 27, 2004.
     Hon. J. Dennis Hastert,
     Speaker of the House of Representatives,
     Washington, DC.
       Dear Mr. Speaker: I write to provide you with the facts to 
     correct the record following last week's Senate floor debate 
     on the Consolidated Appropriations Act with regard to the 
     Department of Labor's proposed revision of the Fair Labor 
     Standards Act's overtime exemption regulations. I also would 
     like to thank you for your support and leadership on this 
     important issue.
       The recent allegations that military personnel and veterans 
     will lose overtime pay, because of proposed clarifications of 
     the Fair Labor Standards Act (FLSA) ``white-collar'' 
     exemption regulations, are incorrect and harmful to the 
     morale of veterans and of American servicemen and women. I 
     want to assure you that military personnel and veterans are 
     not affected by these proposed rules by virtue of their 
     military duties or training.
       First, the Part 541 ``white collar exemptions'' do not 
     apply to the military. They cover only the civilian 
     workforce.
       Second, nothing in the current or proposed regulation makes 
     any mention of veteran status. Despite claims that military 
     training would make veterans ineligible for overtime pay, 
     members of Congress should be clear that the Department of 
     Labor's proposed rules will not strip any veteran of overtime 
     eligibility.
       This has been one of many criticisms intended to confuse 
     and frighten workers about our proposal to revise the badly 
     outdated regulations under the FLSA ``white collar'' 
     exemption regulations. It is disheartening that the debate 
     over modernizing these regulations to meet the needs of the 
     21st Century workforce has largely ignored the broad 
     consensus that this rule needs substantial revision to 
     strengthen overtime protections.
       The growing ambiguities caused by time and workplace 
     advancements have made both employers' compliance with this 
     rule and employees' understanding of their rights 
     increasingly difficult. More and more, employees must resort 
     to class action lawsuits to recover their overtime pay. These 
     workers must wait several years to have their cases 
     adjudicated in order to get the overtime they have already 
     earned. In fact, litigation over these rules drains nearly $2 
     billion a year from the economy, costing jobs and better pay.
       I hope that this latest concern will be put to rest 
     immediately. Once again, I assure you that military duties 
     and training or veteran status have no bearing on overtime 
     eligibility. We hope that future debate on this important 
     provision is more constructive. If we can provide further 
     assistance in setting the record straight, we would be 
     pleased to do so. The Office of Management and Budget has 
     advised that there is no objection from the standpoint of the 
     Administration's program to the presentation of this report.
           Sincerely,
                                                   Elaine L. Chao.

  Mr. KENNEDY. The Bush overtime proposal denies overtime to veterans. 
The overtime proposal explicitly states that training in the Armed 
Forces could disqualify workers from the overtime protection. Many 
employers, such as Boeing, acknowledge that this will affect much of 
their workforce. According to Boeing's comments on the Bush proposal:

       Boeing observes that many of its most skilled technical 
     workers received a significant portion of their knowledge and 
     training outside the university classroom, typically in a 
     branch of the military service. . . .

  There it is. That is the reason. Because many manufacturers wanted 
that kind of savings for the bottom line. That is why that is in there. 
Because this company and others have hired people who have been in the 
military, and when they see they have these kinds of skills which are 
necessary for our Armed Forces, they are being penalized for it.
  I would be interested in seeing the discussion between the Secretary 
of Defense and the Secretary of Labor in putting these out. So many of 
these training programs and education programs are programs that 
inspire young people to go in the Armed Forces. They are men and women 
of limited means but have ability and capabilities and understand that 
they cannot achieve their fullest potential unless they take these 
training programs or build the kind of credits in order to get advanced 
degrees.
  They ought to be on warning now that if they go ahead and do that, 
they may very well be knocked out of any kind of overtime protection. 
That is what this basically says. It is a cruel hoax to so many who are 
in the National Guard now and are going to come back and be in the 
civilian workforce.
  I want to read from a letter:

       My name is Randy Fleming. I live in Haysville, Kansas--
     outside of Wichita--and I work as an Engineering Technician 
     in Boeing's Metrology lab.
       I'm also proud to say that I'm a military veteran. I served 
     in the U.S. Air Force from August 1973 until February 1979.
       I've worked for Boeing for 23 years. During that time I've 
     been able to build a good, solid life for my family and I've 
     raised a son who now has a good career and children of his 
     own. There are two things that helped make that possible.
       First, the training I received in the Air Force made me 
     qualified for a good civilian job. That was one of the main 
     attractions when I enlisted as a young man back in Iowa. I 
     think it's still one of the main reasons young people today 
     decide to enlist. Military training opens up better job 
     opportunities--and if you don't believe me, just look at the 
     recruiting ads on TV.
       The second thing is overtime pay. That's how I was able to 
     give my son the college education that has opened doors for 
     him. Some years, when the company was busy and I had those 
     college bills to pay, overtime pay was probably 10% or more 
     of my income. My daughter is next. Danielle is only 8, but 
     we'll be counting on my overtime to help her get her college 
     degree, too, when that time comes. For my family overtime pay 
     has made all the difference.
       That's where I'm coming from. Why did I come to Washington? 
     I came to talk about an issue that is very important back 
     home and to me personally as a working man, a family man, and 
     a veteran. The issue is overtime rights.
       The changes that this administration is trying to make in 
     the overtime regulations would break the government's bargain 
     with the men and women in the military and would close down 
     opportunities that working vets and their families thought 
     they could count on.
       When I signed up back in 1973, the Air Force and I made a 
     deal that I thought was fair. They got a chunk of my time and 
     I got training to help me build the rest of my life. There 
     was no part of that deal that said I would have to give up my 
     right to overtime pay. You've heard of the marriage penalty? 
     Well I think that what these new rules do is to create a 
     military penalty. If you got your training in the military, 
     no matter what your white collar profession is, your employer 
     can make you work as many hours as they want and not pay you 
     a dime extra.
       If that's not a bait and switch, I don't know what is.

  You can't make the case any better--no matter how long we speak, how 
many charts we have--you can't make the case any better than is being 
made by this former serviceman.

       And I don't have any doubt that employers will take 
     advantage of this new opportunity to cut our overtime pay. 
     They'll tell us they have to in order to compete. They'll say 
     if they can't take our overtime pay, they'll have to 
     eliminate our jobs.
       It won't be just the bad employers either--because these 
     rules will make it very hard for companies to do the right 
     thing. If they can get as many overtime hours as they want 
     for free instead of paying us time-and-a-half, they'll say 
     they owe it to the stockholders. And the veterans and other 
     working people will be stuck with less time, less money, and 
     a broken deal.
       I'm luckier than some other veterans because I have a union 
     contract that will protect my rights for a while anyway. But 
     we know the pressure will be on, because my employer is one 
     that pushed for these new rules and they've been trying hard 
     to get rid of our union.
       And for all of those who want to let these military penalty 
     rules go through, I have a

[[Page 2448]]

     deal I'd like to propose. If you think it's okay for the 
     government to renege on its deals, I think it should be your 
     job to tell our military men and women in Iraq that when they 
     come home, their service of their country will be used as a 
     way to cut their overtime pay.

  Madam President, is there anyone in this body who doesn't believe 
that eliminating that possibility isn't of greater urgency than the 
special interest provision presently before us in the Senate?
  Why don't we clear this up once and for all? Why don't we take an 
hour or so and debate the Harkin-Kennedy amendment on this issue? Why 
don't we vote on that amendment and send it over to the House? Let's 
send a message to families, nurses, police officers, and firefighters. 
Let's send a message to those who have gotten skills in the National 
Guard. Let's send a message that we stand with them, that we believe 
their service is of importance to us in the Senate. Let's put aside the 
speeches for a little while that will be made by political leaders all 
over the country about how much we appreciate the service of men and 
women and do something for them in the Senate now? Now.
  There are a number of other issues that we could be talking about in 
terms of the state of our economy. I have taken a short period of time. 
I see others in the Chamber who wish to address the Senate. It does 
seem to me that the matters I have mentioned, no matter how you come 
out on them, are of importance to working families in this country. 
And, the working families in this country are faced with economic 
challenges.
  It is not just the questions about outsourcing, although that is 
enormously important and a matter of great and expanding concern. It is 
what is happening with the failed increase in the minimum wage, the 
failure of providing unemployment compensation, the failure to do the 
overtime provisions, the failure to deal with the high cost of 
prescription drugs. There is another amendment we could do to permit 
the Secretary of Health and Human Services to actually negotiate and do 
something about lowering prescription drugs for people. We could do 
that pretty quickly.
  People are concerned about the high cost of tuition in colleges, and 
there are things we can do on that.
  I say these are the matters that are of principal concern to working 
families across this country. We have seen the loss of manufacturing 
jobs, the concerns that working families have. They want some action. 
They don't want us to yield to special interest provisions. Not only do 
they not want us to yield to them, but those who have been victims of 
violence and violent gun activity don't want us to throw their cases 
away, and leading law enforcement officers of this country understand 
that we should not yield to the special interests as well.
  I look forward to the opportunity for some discussion and some action 
on these issues prior to the time we have a vote. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho.
  Mr. CRAIG. Mr. President, the Senator from California is now in the 
Chamber to discuss this bill. We are not on the bill yet. I hope we can 
get there.
  The Senator from Massachusetts has taken ample time to discuss the 
bill, I guess, and other issues. I would like to talk about jobs. I 
think the Senator is right to talk about jobs, but what he didn't talk 
about were the jobs in Westfield, MA, at Savage Firearms. They used to 
be a total of 500 high-paying union jobs strong. They have spent over 
half a million dollars fighting the lawsuits that we would like to 
prohibit. Now there they are 160 strong. They have lost jobs in 
Massachusetts. I want the Senator from Massachusetts to stand with me 
and protect the hard-working men and women at Savage Firearms.
  The bill is about jobs, I say to the Senator from Massachusetts. That 
is what this issue is all about.
  Why is our bill endorsed by the United Steelworkers and by the United 
Auto Workers? The reason it is endorsed is because these high-paying 
jobs at law-abiding gun manufacturing locations are being eliminated by 
the glut of a thousand lawsuits--in this case over 30--where they have 
had to go to court, spend a lot of money, and the court threw it out 
because it was frivolous, but the company was less viable because these 
are really not big companies.
  If we took all of the firearms manufacturers in the United States 
today and brought them all into one company, they would be smaller than 
a Fortune 500 company.
  Let me read a great quote from the Colt manufacturers, Colt firearms. 
They are located in Connecticut:

       We today have 383 members from the Colt workforce. By 
     comparison, about 5 years ago, we had over 600 Colt workers 
     who were members of our local. Our members built the finest 
     small arms in the world, including the M-4 carbine, the M-16 
     rifle, and the M-203 grenade launcher.

  I believe those are the firearms of our military.

       Many of them were shipped to the U.S. military and lawfully 
     provided for the principles of democracy.

  That company is at risk today unless we pass the kind of legislation 
about which we are talking.
  I do believe the working men and women of this country are a special 
interest. I think the tens of millions of law-abiding gun owners in our 
country are a special interest. So it is really a matter of how you 
define ``special interest.'' If it has been said once on the floor, it 
has been said 15 times in the last 45 minutes: special interest, 
special interest, special interest.
  Let's talk about the working men and women of the firearms industry. 
Let's talk about the law-abiding gun owners of America as a special 
interest of us, this country, all Americans. You are darn right we 
debate special interests on the floor of the Senate, but it really is a 
matter of definition.
  Time limit? We are not proposing a time limit. Senators can speak for 
up to an hour on this issue now, and if they want to, they have 30 
hours postcloture before we get to the bill. I hope we don't spend all 
of that time doing that. I would like to get to the bill. I know the 
Senator from California has talked about an amendment. I think she 
would probably want to offer that amendment and have it amply debated.
  We do not want to limit time, but we do want to talk about special 
interests: law-abiding gun owners in our country, working men and women 
of the law-abiding gun manufacturers, the people who work at legal gun 
shops all over this country that by law are licensed and that by law 
carry out the law. That is what we are talking about today. Call them a 
special interest, if you will. I do. My job is to try, under the law, 
to protect them from the kinds of frivolous lawsuits the trial bar has 
decided to bring in court after court because they couldn't gain 
legislation on the floor to change the character of our country. That 
is the issue at hand.
  I am glad the Senator from Massachusetts has come to talk about 
special interests. I wish he would understand that the hard-working men 
and women in Westfield, MA, for Savage Firearms are, in fact, a special 
interest--a special interest of mine and, I am quite confident, a 
special interest of his.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise today to speak on the bill that 
is before this body, and I wish to begin by saying that I have great 
respect and have enjoyed working with the Senator from Idaho on a 
number of issues, including Healthy Forests. But I also must say we 
profoundly disagree when it comes to guns. So it is probably no 
surprise to him that I rise to strenuously object to what I see 
happening here.
  I think we have to recognize that guns in America are responsible for 
the deaths of 30,000 Americans a year. The question comes whether we 
should be giving the gun industry sweeping and unprecedented protection 
from the type of lawsuits that are available to every other victim 
involving every other industry in America.
  The simple fact is that over the years, the gun industry has managed 
to

[[Page 2449]]

lessen, avoid, or prevent any prudent regulation. For example, they are 
exempt from Consumer Product Safety Commission laws, thanks to the 
National Rifle Association's efforts over the years to keep it that 
way.
  Secondly, the Federal Government cannot do much to police bad gun 
dealers--and we know there are some--or to enforce gun laws because the 
hands of the ATF, the Bureau of Alcohol, Tobacco and Firearms, are tied 
by limits to their authorities which have been put in place by the 
National Rifle Association. They can only do a once-a-year audit, for 
example. They only have limited options.
  The number of ATF agents is kept so low they cannot possibly inspect 
all of the gun dealerships in this country. So today only the court 
system offers victims of negligent manufacturers, of which there are 
some, and dealers, of which there are some, the ability to receive 
compensation for their injuries. Only the court system provides a means 
for changing these negligent practices through the threat of legal 
liability.
  I hope to show that the threat of legal liability has, in fact, 
resulted in more responsible manufacturing and selling principles by 
this industry. If we remove this one remaining avenue toward enforcing 
responsibility, victims will have no recourse. Gun owners and gun 
victims alike will be left virtually powerless against an industry that 
is already immune from so many other consumer protections. So we find 
ourselves today on the cusp of yet another NRA victory.
  Let me be clear, this is not a victory for NRA members, most of whom 
are law-abiding gun owners who might some day benefit from the ability 
to sue a manufacturer that sold them a defective or dangerous gun. No, 
this will be a victory for those who have turned their organization 
into a political powerhouse, unconcerned with the rights of the 
majority of Americans who want prudent controls over firearms.
  I do not support meritless lawsuits against the gun industry. I do 
not think anybody does. It is my belief gun manufacturers and dealers, 
though, should be held accountable for irresponsible marketing and 
distribution practices, just as anyone else would be, particularly when 
these practices may cause guns to fall into the hands of criminals, 
juveniles, or mentally ill people.
  This legislation has one simple purpose: to prevent lawsuits from 
those harmed by gun violence. These include: suits filed by cities and 
counties which face rising law enforcement and medical costs due to 
increased gun crimes, crimes often committed using guns that flood the 
illegal market with the full knowledge of the distributors that the 
legal market could not possibly be absorbing so many of these weapons; 
suits filed by organizations on behalf of their members; and victims of 
violent crimes and their families who are injured or killed as a result 
of gun violence or defective guns that malfunction due to negligent 
design or manufacture.
  This issue is not an abstract one. When people vote for this gun 
liability absolution today, they are going to be hurting a lot of 
people all across this land, and I want to point out a few because this 
bill affects the lives of real gun victims, victims not simply of 
criminal misuse by a well-designed firearm, but victims of guns that 
have been designed poorly or marketed in ways which quite frankly 
should be illegal.
  One of the cases that could be affected by this legislation, though 
this would ultimately be decided by a judge, is that of Brandon 
Maxfield, a 7-year-old from my State, Oakland, CA.
  On April 6, 1994, Brandon was shot in the chin by his babysitter. The 
shooting left him a quadriplegic and he will never be able to walk 
again.
  The babysitter, a friend of the family, was simply trying to remove a 
bullet from the chamber of a weapon that was found in the house, a .38 
caliber Saturday night special, when the gun accidentally fired.
  Here is the key: The weapon was clearly designed in an inherently 
dangerous way. It can only be unloaded when the safety is in the off 
position and can therefore fire.
  Now common sense might say when you want to unload a gun you would 
first put the safety on. It defies common sense, on the other hand, to 
design a firearm so it can only be unloaded in the firing position. 
After all, one might expect the gun to accidentally fire as someone 
like Brandon's babysitter struggles to unload it.
  Finally last year, after 9 years of litigation, a jury found the 
manufacturer and distributor of Saturday night specials partially 
liable for Brandon's injuries. This was a tremendous victory for 
Brandon and his family and a victory for all people who want to see 
guns made safer. This bill, however, would take away Brandon's right to 
sue, and I will explain why a bit later.
  The bottom line, though, is Brandon's case was not frivolous. The 
jury did not think it was. Without the threat of lawsuits, companies 
like the one that made the gun in this case will have little incentive 
to change the design, but this legislation would remove the threat of 
that suit, depriving Brandon of compensation but, even worse, depriving 
the public of this key avenue to improving the habits of gun 
manufacturers.
  I will quickly go through what the bill does. I know others have and 
will continue to speak to this, but I think it bears repeating because 
I do not think everybody supporting this bill really understands its 
full ramifications.
  Essentially, this bill prohibits any civil liability lawsuit from 
being filed against the gun industry for damages resulting from the 
criminal or unlawful misuse of a gun, with a number of narrow 
exceptions.
  In doing so, the bill effectively rewrites traditional principles of 
liability law, which generally hold that persons and companies may be 
liable for their negligence even if others are liable as well. This 
bill would essentially give the gun industry blanket immunity from 
civil liability cases, an immunity no other industry in America has 
today.
  The bill does allow certain cases to move forward, as its supporters 
have pointed out, but these cases can proceed only on very narrow 
circumstances. Countless experts have now said this bill would stop 
virtually all of the suits against gun dealers and manufacturers filed 
to date, many of which are vital to changing industry practice and 
compensating victims who have been horribly injured through the clear 
negligence or even borderline criminal conduct of some gun dealers and 
manufacturers.
  The exemptions in the bill, even the new bill, set a very high burden 
of proof of negligence for plaintiffs, allow for a very slight number 
of cases against gun manufacturers to be filed, and only protect a 
limited class of cases against sellers.
  Under this bill, cases could only be filed in the following narrow 
circumstances. First, if a gun dealer transfers a firearm knowing the 
gun will be used to commit a violent or drug trafficking crime. In 
other words, a suit could go forward if a dealer gives a gun to someone 
who comes in and says, ``Give me a gun, I need to go kill someone.'' 
This provision only applies in the highly unlikely event a gun buyer 
clearly indicates his or her criminal intentions to the gun seller. Fat 
chance of that happening.
  I am not a gun dealer, but I imagine most criminals do not make a 
habit of announcing their criminal intentions to gun dealers. So this 
exception to the immunity created by the bill is really no exception at 
all. It will apply to almost no cases.
  Secondly, there is an exemption in the bill which applies if a dealer 
sells a gun to someone knowing the buyer will or is likely to misuse 
the firearm and that the individual buyer does indeed misuse it to 
commit a criminal offense. This provision is slightly more likely than 
the first exemption, but it still requires a very high burden of proof. 
Instead of common negligence, which might only require that the dealer 
did not take enough care in making sure that criminals did not obtain 
guns to commit crimes, what this provision requires is that the dealer 
actually know

[[Page 2450]]

that the buyer is likely to use the gun to do harm.
  How can this be proven? Mr. President, you are an attorney. How can 
this be proven? The difficulty in proving such a claim might all but 
bar this exemption from ever coming into play. It would have no effect 
on such practices as straw purchases and large volume sales--which, 
incidentally, are the two most common sources of crime guns--because in 
a straw purchase, the dealer could always claim that he or she had no 
idea what the buyer would be doing with the guns.
  Third, the bill would allow suits to proceed where a defendant has 
violated a law or regulation in the sale of the specific gun that 
caused the damage or injury. This sets a very high burden of proof for 
negligence. Again, this would not affect dealers who conduct straw 
purchases or other dangerous distributing conduct because such conduct 
does not specifically violate any laws or regulations, although I must 
say it should.
  Because there are so few real laws or regulations governing how guns 
are sold or manufactured, this provision, too, is relatively 
insignificant in terms of how it affects the underlying thrust of the 
bill.
  Now I should point out that this provision is different than the 
provision in the original bill as passed by the House. Under the 
original bill, only knowing and willful violations of the law could be 
subject to suit, which is an even higher burden to reach. But even 
under this revised legislation, this standard is far higher than 
current law.
  The simple truth is, negligence does not involve a violation of the 
law. Requiring a plaintiff to prove that a gun store, for example, was 
not only negligent in letting a criminal obtain a dozen guns, but the 
gun store actually violated a law in doing so, of which there are few, 
makes it very difficult to succeed.
  So with any other business or product, in every other industry, a 
seller or manufacturer can be liable if it is negligent--but not here. 
Since money, rather than life or liberty is at stake in a civil case, 
the standard of proof is lower. There need not be a criminal violation 
to recover damages, and in the overwhelming majority of civil cases 
there is no criminal violation. So if, for instance, a crib 
manufacturer designs and markets a crib that results in the death of 
children who use the crib, we allow that manufacturer to be sued as one 
means of deterring such conduct and of compensating the families of the 
children who died from the defectively designed crib. The manufacturer 
need not have committed any crime. It is the negligence in making a 
defective and dangerous crib that is enough. Here, contrary to general 
negligence law covering almost every other product, this bill allows 
negligent gun dealers and manufacturers to get off the hook unless they 
violated a criminal law. That is just dreadful. You are creating a 
special area of law for gun manufacturers and saying unless they 
violate a law they can manufacture a defective weapon.
  The judge in Washington State presiding over the case brought against 
the DC area snipers has twice ruled that the dealer, Bull's Eye 
Shooters Supply, and the manufacturer, Bushmaster Firearms, may be 
liable in negligence for enabling the snipers to obtain their gun. But 
even with the new modifications, the sniper victims' case could very 
well be thrown out of court under this bill. So know what you are 
doing, Members who vote for it. The sniper victims' case could well be 
thrown out of court by this bill because there is no evidence that 
either the negligent dealer or manufacturer violated a criminal law.
  Indeed, both Lloyd Cutler and David Boies, each prominent attorneys, 
recently stated unequivocally that the sniper case would have to be 
dismissed under this bill, and countless professors have written a 
letter agreeing with this interpretation of the law.
  This is the most notorious sniper case in America. You have 
negligence on the part of the gun dealer who sold that gun, didn't 
report it until way late, allowed the snipers to get that gun, and now 
we are passing a law to prevent the victims from suing under civil 
liability. Nowhere else in the law does this exist.
  In another case, a Massachusetts court has ruled that gun 
manufacturer Kahr Arms may be liable for negligently hiring drug-
addicted criminals and enabling them to stroll out the plant door with 
unmarked guns to be sold to criminals. But with the proposed changes, 
the case against Kahr Arms would be dismissed. Its conduct, though 
outrageous, violated no law. Negligent? Yes. Criminal? No.
  Members, know what you are doing when you vote for this bill.
  The fourth exemption in the bill is when a dealer somehow violates a 
sales contract. An example of this would be the dealer failing to 
provide the gun for which the purchaser paid. This, too, is clearly a 
limited exception. Victims of defectively designed or negligently sold 
guns would not be allowed to file cases under this provision. 
Furthermore, the claims of gun purchasers would be limited to what they 
were entitled to under the scope of the contract or warranty.
  The fifth exemption in the original bill allowed suits to go forward 
if the gun manufacturer has caused ``physical injuries or property 
damage resulting directly from a defect in design or manufacture of a 
product when used as intended.'' This provision altered generally 
accepted principles of products liability law which essentially state 
that a manufacturer must implement feasible safety features that would 
prevent injury caused by foreseeable use or misuse, even if that use is 
not ``intended.'' For instance, it might not be intended for a child to 
try to eat a small toy, but it is clearly foreseeable.
  This new modified gun immunity legislation does add language allowing 
suits to go forward as long as the activity was ``reasonably 
foreseeable'' by the manufacturer or dealer, which appears to match 
current law. However, the devil is in the details because the bill then 
takes away any benefit that language might have by stating that the 
exemption will not apply to lawsuits that also involve criminal acts by 
the defendant.
  The best example of how this provision would affect the case is the 
Brandon Maxfield babysitter shooting I mentioned earlier, where a child 
was accidentally shot by a babysitter because the chamber of the gun 
could not be checked without clicking the safety to ``off.'' In that 
case, the gun fired while the babysitter tried to check the chamber.
  The problem is the bill prohibits suits involving even foreseeable 
accidents, if there are criminal charges. In the babysitter case, the 
babysitter could easily be, and indeed was, charged with manslaughter--
which is a crime. Thus, even this suit would still be barred by this 
revised bill.
  Contrary to current law which allows judges and juries to apportion 
blame and damages, this bill would bar any damages against a 
manufacturer if another party was liable due to a criminal act.
  Why should firearms get special treatment? In our society, we hold 
manufacturers liable for the damage their products cause. This is the 
case with automobiles. This is the case with cribs. It is the case with 
children's toys, and it should be the case with guns as well. Lawsuits 
filed against the gun industry provide a way for those harmed to seek 
justice from the damages and destruction caused by firearms. Just as 
important, they create incentives to reform the practices proven to be 
dangerous.
  After all, this is the most dangerous consumer item found in a home.
  According to statistics, there is a gun in 43 percent of the 
households with children in America. There is a loaded gun in 1 of 10 
households with children, and a gun that is left unlocked or improperly 
stored in 1 of every 8 family homes.
  More children and adult family members are killed each year by having 
a loaded gun at home than from incidents with criminal intruders. In 
fact, a gun in the home is 22 times more likely to lead to an 
accidental injury or death to family members than used against a 
criminal intruder. These are senseless actions that can be prevented

[[Page 2451]]

by simply designing guns with technologically and economically feasible 
safety devices.
  Recent cases have produced evidence from law enforcement 
investigations, as well as industry insiders, that the gun industry may 
be ignoring numerous patented safety devices for guns and intentionally 
flooding certain markets with guns knowingly, and also profiting from 
the fact that the excess weapons would make their way into the hands of 
criminals. We have seen gun dealers selling guns when they know these 
guns are being purchased to immediately resell to criminals--often to 
criminals who wait right outside the door or even inside the very store 
while the guns are being bought by someone who can pass a background 
check.
  Lawsuits filed against the gun industry provide a way for victims and 
municipalities to seek justice from the damages and destruction caused 
by firearms.
  Additionally, lawsuits provide this largely unregulated industry with 
incentives to reform irresponsible manufacturing and distributing 
practices proven to be dangerous.
  According to Tom Gresham, a writer for the magazine Guns & Ammo, 
lawsuits have, in fact, proven effective in encouraging manufacturers 
to design their guns with proper safety devices. Even though guns are 
not required to be made with safety features, Gresham writes in the 
June 2002 edition of the magazine that lawsuits have spurred 
manufacturers to include them to avoid liability in future actions.
  Don't we want this to take proven steps to improve the safety of 
their weapons?
  Gresham claims, ``No matter what you think of them, you will find 
built-in locks on more and more guns in the future. I predict that in 
ten years, no firearm will be made without one.''
  What does this bill do to that? It encourages the gun companies to do 
exactly the opposite--to not put better safety components on their 
weapons.
  When this bill was introduced, its supporters spoke about the need to 
protect the industry from frivolous lawsuits and the need to protect 
the industry from the potential loss of jobs brought on by future 
lawsuits. These claims are unfounded. This bill is simply the latest 
attempt of the gun lobby to evade industry accountability. The suits 
against the gun industry come in varying forms, but they all have one 
goal in common--forcing the firearm industry to become more 
responsible.
  In addition to ongoing cases filed by individual victims, there have 
been a handful of cases filed by private associations, such as the 
National Association for the Advancement of Colored People, and the 
National Spinal Cord Injury Association. These cases have been filed on 
behalf of groups of individuals who claim to have been harmed by the 
gun industry's bad behavior.
  And there are government cases--at least 24 cases--that have been 
filed against the gun industry on behalf of nearly three dozen cities 
and counties and one State attorney general claiming that the reckless 
conduct of the gun industry has threatened public safety and hindered 
the ability of municipalities to provide for the health and welfare of 
their citizens. A majority of these municipalities' lawsuits have 
successfully defeated industry attempts to dismiss their cases. This 
bill would kill that.
  Last year, Dennis Herrera, City Attorney of San Francisco, said that, 
``Cases being pursued by my office and some 30 other jurisdictions 
nationwide have already achieved important milestones in exposing gun 
industry recklessness, with mounting evidence and an increasing number 
of high-level whistle blowers revealing gross misconduct by 
manufacturers and dealers . . . I'm convinced that the City and its 
fellow plaintiffs have a compelling case against the gun industry.''
  This legislation would prevent them from going ahead.
  Let me describe a few representative cases that also could have been 
stopped by this bill.
  The case of Cincinnati v. Beretta is one example of a legitimate and 
successful case filed against the gun industry. In this case, officials 
from the city of Cincinnati, OH, contended that the gun industry's 
reckless marketing and distribution of guns enabled them to wind up in 
the hands of criminals and children leading to murders, shootings, and 
suicides that imperil public safety. The city also argued that gun 
manufacturers were negligent in failing to design safer weapons and 
owed the city compensation for the cost of emergency responses to acts 
of gun violence.
  The Supreme Court of Ohio agreed and ruled the issue deserved 
exploration at trial. The court found that under generally applicable 
principles of law, it is the duty of gun manufacturers to use 
reasonable care in their design and sales of guns, and they may be 
liable for damages arising from their negligent conduct and failure to 
equip their guns with practical safety features.
  This is no different an analysis than would be used against the 
manufacturer of any product used by a consumer--whether a child's crib, 
a toothbrush, a chainsaw, or an automobile.
  The Court also found that a manufacturer could be held liable for 
their role in creating and facilitating the criminal gun market through 
their failure to use reasonable care in their sale and distribution of 
guns. The Court specifically rejected the argument that those who 
irresponsibly sell guns cannot be liable if the damage foreseeably 
resulting from their negligence was ultimately caused by a criminal 
act.
  Furthermore, the Court noted the socially beneficial role of lawsuits 
against gun sellers and manufacturers can play:

       If as a result of both private and municipal lawsuits, 
     firearms are designed to be safer and new marketing practices 
     make it more difficult for criminals to obtain guns, some 
     firearm-related deaths and injuries may be prevented . . . 
     Such litigation may have an important role to play, 
     contemplating other interventions available to cities and 
     states.

  This case could well be stopped in its tracks if this bill passes.
  In another case, Hurst v. Glock, the New Jersey Court of Appeals also 
ruled in favor of the plaintiff. This products liability case centers 
on an incident in which a teenage boy, Tyrone Hurst, was seriously 
injured when his friend picked up a gun she thought was unloaded and 
fired at Tyrone. The Hurst family argued that the shooting could have 
been prevented had the gun manufacturer included a safety feature known 
as a magazine disconnect safety.
  Again, the Court agreed and found that the gun manufacturer could be 
liable for injuries caused by the failure to include a safety feature 
on the firearm. Wiped out.
  In 1994, Griffin and Lyn Dix from Berkeley, CA, lost their youngest 
son Kenzo after he was accidentally shot to death at the age of 15 by 
his best friend, Michael. Michael was showing his father's gun to Kenzo 
and, believing the gun to be unloaded, pointed it at his friend and 
fired. Michael did not realize there was a bullet hidden in the chamber 
of the gun.
  In an interview after the incident, Michael described the situation 
after turning the gun on his friend:

       I look down and I don't even aim. I heard a pop, my eyes 
     opened up and I was shocked. I look and saw Kenzo hunched 
     over, kind of moaning--a creepy moan you don't want to hear. 
     It just stays with you.

  The bullet went straight into Kenzo's chest. Tragically, he was 
pronounced dead within the hour.
  Kenzo's parents sued Beretta, the manufacturer of the gun that killed 
their son. They argued that the gun lacked adequate safety features and 
warnings and that is why it appeared unloaded despite the fact that a 
bullet lay in the chamber.
  The case sent a necessary wake-up call through the industry that they 
could rightly be held accountable in future wrongful-death cases. Faced 
with the threat of litigation, a number of manufacturers have changed 
their design standards and designs to include proper and practical 
safety features. That is a positive benefit all across this Nation.
  I ask my colleagues, how can we justify giving blanket immunity to 
the gun industry that manufactures and distributes products that kill 
30,000

[[Page 2452]]

Americans a year, yet fail to provide the proper and practical safety 
features in their products?
  Under the principles of common law, all individuals and industries 
have a duty to act responsibly. How can we give total legal immunity to 
an industry that time and time again has failed to act in such a 
manner?
  This is not just about manufacturers and the design of products. It 
is also about gun dealers and distributors that know their guns are 
sold to be used in crime. This very bill was scheduled to come to the 
Senate for consideration during the 107th session of Congress. It was 
withheld in light of the sniper attacks that terrorized the Washington, 
DC area. I guess enough time has now passed that the bill's supporters 
think we will have forgotten those sniper victims. But we have not. We 
have already heard today that the victims of those attacks have filed 
one of the cases currently pending. The suit results from alleged 
negligent conduct of a gun dealer that has been accuse of some 
incredibly negligent conduct.
  Mildred Denise Muhammad filed three restraining orders against her 
husband, John Allen Muhammad, one of the convicted snipers. Those 
restraining orders should have prohibited John Allen Muhammad from 
owning a gun.
  However, nothing stopped him from obtaining the handgun he allegedly 
used to commit murder in Alabama, nor the Bushmaster XM-15 assault 
rifle used in the sniper attacks, in all likelihood because the dealer 
that had the Bushmaster assault rifle was either negligent or willful 
in allowing it to fall into Muhammad's hands.
  The assault rifle used in the sniper attacks was one of 238 guns that 
have been reported missing from the Bull's Eye Shooters Supply store in 
Tacoma, WA. We learned about this dealer's dangerous inability to keep 
track of his guns not from the store itself but, rather, from audits 
performed by the ATF. The store had no record of purchase for the 
assault rifle used in the attacks and failed to report it stolen until 
after the ATF recovered the weapon from the snipers and traced it back 
to the store. Here is a store that has 238 guns that are missing and 
does not report them. That is class A evidence.
  Even after this blatant display of negligent conduct, the rifles 
manufacturer announced that the gun store remained a ``good customer'' 
and it would continue to sell guns to the store. The manufacturers 
showed clear disregard for the victims, their families, and public 
safety.
  And the store itself, in either failing to adequately account for its 
guns, or even worse, illegally selling the gun to a prohibited person, 
may well also be liable for its conduct. The alleged snipers were 
clearly aided and abetted by the irresponsible conduct of the owners of 
this gun shop that managed to simply lose hundreds of deadly weapons 
and the manufacturer that supplied serious combat weapons to a dealer 
with no questions asked.
  If they are not liable, they will be found not liable by a jury; but 
if they are liable, should we not allow a court to decide? How can we, 
with a clear conscience, pass a bill that would deny the right of these 
victims of gun violence their day in court?
  As I mentioned earlier, this case would almost certainly be dismissed 
if the bill now before the Senate becomes law. With no liability 
threat, few ATF enforcement tools, and a blanket exemption from 
consumer laws, Bull's Eye will have no incentive to clean up its act.
  Such disregard for public safety is identified in another case filed 
against the gun industry, Lemongello and McGuire v. Will's Jewelry & 
Loan. In this case, the argument that those who irresponsibly sell guns 
cannot be held liable if the guns were later used in a criminal act was 
again rejected, this time by West Virginia Circuit Court Judge Irene 
Berger.
  As the Presiding Officer knows, a felon, fugitive, or stalker cannot 
legally buy guns. So sometimes the individuals will find someone also 
to help them evade the current gun laws and get their hands on a gun.
  A straw purchase occurs when a buyer purchases guns on behalf of 
criminals or other individuals who are prohibited from purchasing guns. 
Federal law enforcement agencies estimate 46 percent of crime guns 
nationwide come from this type of purchase. I repeat, 46 percent of the 
guns used in crimes in America come from these straw purchases with gun 
dealers.
  The National Shooting Sports Federation is the gun industry's leading 
trade association. It is fully aware of the reality that guns from 
straw purchases are often ultimately found in the hands of criminals. 
The Foundation also recognizes that these dangerous purchases can 
easily be prevented so long as dealers act responsibly.
  To promote this policy, the Foundation provides training for gun 
dealers ``to help prevent and deter the illegal `strawman' purchase of 
firearms.'' In the brochure of its training campaign entitled ``Don't 
Lie for the Other Guy,'' the Foundation claims that it is the 
responsibility of the gun dealer to prevent these purchases from taking 
place by simply prohibiting any sale they suspect to be a straw 
purchase. Despite these warnings, a straw purchase is exactly what took 
place at Will's Jewelry & Loan, a West Virginia pawnshop, in the fall 
of 2000. James Grey, a felon and gun trafficker, came into the store 
accompanied by Tammi Lea Songer, a woman who had a clean background and 
thousands of dollars in cash. James Grey methodically selected 12 guns 
he wanted and Songer bought them, all in a single purchase, no 
questions asked.
  The shop's employees were suspicious of Grey and Songer's actions. 
They contacted the ATF to notify them of the purchase.
  The problem is that the call to the ATF was made after the guns were 
purchased, after the profits were made by the dealer and Sturm, Ruger. 
The warning signs were so obvious, yet proper actions were not taken 
until it was too late.
  Just months later, one of these guns, a 9 mm semiautomatic Ruger 
handgun, was used by a convicted felon to shoot and seriously injure 
two New Jersey police officers in the line of duty.
  Officers Dave Lemongello and Ken McGuire were shot with that handgun 
while responding to the scene of an attempted robbery. The shoot-out 
put an end to the careers of both men. The injuries they received were 
so debilitating they could no longer serve.
  Those officers filed a lawsuit against the dealer and Sturm, Ruger, 
who both profited from their irresponsible conduct. Their claims were 
recently validated, and the West Virginia Circuit Court found the gun 
dealer could be liable under West Virginia law of negligence and public 
nuisance for failing to use reasonable care in its sales. As a result, 
a jury could find the subsequent criminal shooting was a foreseeable 
result caused by that negligent act.
  The bill we are considering today would turn a blind eye to the 
reckless conduct shown by those in the industry that enabled this 
tragic incident to have taken place.
  Last year, Officer Lemongello spoke before the House Judiciary 
Committee to protest this bill. In his testimony he stated:

       The next disturbing news I heard was that some people in 
     Congress wanted to take away my right to present my case in 
     court and wanted to give that irresponsible dealer special 
     protection from the legal rules that apply to all other 
     businesses in this country. Other businesses have to use 
     reasonable care and may be liable for the consequences if 
     they don't. Those who sell lethal weapons that are highly 
     valued by criminals should have at least the same duty to use 
     reasonable care as businesses who sell BB guns or any other 
     product . . . Gun sellers have to be more responsible when 
     they sell guns to prevent guns from getting into criminals' 
     hands before they do their damage. What happened to me and 
     Ken is an example of what happens when gun sellers are 
     irresponsible.

  As if the valuable lessons learned from the cases I have detailed 
were not convincing enough to prove that criminals are able to get guns 
on the black market due to the complicity of gun manufacturers and 
dealers, simply listen to the words of gun industry insider Robert 
Ricker.
  Former Executive Director of the American Sport Shooting Council and 
former Assistant General Counsel for the NRA, Robert Ricker has 
testified

[[Page 2453]]

in support of lawsuits against the gun industry--a brave man. In a 
recent affidavit, Ricker claimed:

       Instead of requiring dealers to be proactive and properly 
     trained in an effort to stop questionable sales, it has been 
     common practice of gun manufacturers and distributors to 
     adopt a ``see-no-evil, speak-no-evil'' approach. This type of 
     policy encourages a culture of evasion of firearms laws and 
     regulations.

  In the same affidavit, Ricker also claimed lawsuits provide a 
valuable tool for motivating the industry to reform and act 
responsibly. He stated:

       Until faced with a serious threat of civil liability for 
     past conduct, leaders in the industry have consistently 
     resisted taking constructive voluntary action to prevent 
     firearms from ending up in the illegal gun market and have 
     sought to silence others within the industry who have 
     advocated reform.

  That says it all. They will not move to do the right thing, and they 
will silence others. That is according to one of their own insiders, 
and we go along with it and are going to give them civil liability 
protection. I cannot believe it.
  Again, I do not support meritless lawsuits against any industry, 
including the gun industry. But the fact of the matter is, this bill's 
goal of granting the gun industry blanket immunity would cause much 
greater harm to the American public than it could ever possibly prevent 
for an already under-regulated industry.
  The right way for the gun industry to protect itself from liability 
for irresponsible conduct is simply to act responsibly, by 
manufacturing guns with safety devices and ensuring their products are 
going to reputable, law-abiding dealers.
  Is that asking too much? Is it asking too much that dealers enforce 
the rules on the books and prohibit straw purchases? Straw purchases, 
remember, are responsible for the sale of 43 percent of the guns in 
this Nation that are used in crimes.
  I think dealers should enforce the rules on the books and prohibit 
these purchases. If litigation is the only way to keep the gun industry 
in check, we should not give the gun industry total immunity. As I have 
pointed out, everything else is stretched thin.
  This is an industry that is less accountable under law than any other 
in America. The only avenue of accountability left is the courtroom, 
and this bill attempts to slam the courtroom door in the face of those 
who would hold the industry responsible for its actions.
  We ought to hold this industry accountable for product standards so 
that in the event a juvenile ends up with a gun, common sense safety 
devices will prevent senseless accidents.
  We ought to hold this industry responsible for taking the proper 
precautions to ensure law-abiding citizens are able to obtain the guns 
they choose while criminals and other prohibited individuals do not.
  Mr. President, I beg, I plead with this body. It is incomprehensible 
to me that the Senate of the United States is going to provide this 
kind of liability protection to an industry that does what I just laid 
out in these remarks. It is incomprehensible.
  I have watched the NRA win time after time--the latest being the 
Federal database of gun sales being obliterated after 24 hours. If this 
bill passes, there will be no stay on the gun industry for responsible 
conduct because they can get away without doing it.
  I implore my colleagues, please take a second look at this bill. Talk 
to attorneys like Lloyd Cutler and David Boies. Ask them what this bill 
will do to merit cases.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I would like to discuss this matter on 
the level I think it should be discussed; and that is, is it good 
public policy, is it the right thing to do in light of the litigation 
we are seeing against gun dealers and gun manufacturers that is going 
on in America today?
  I do not believe in any way this is a blanket immunity for wrongdoing 
or total immunity for wrongdoing. In fact, it is not that. What it says 
is, classical rules of law ought to be enforced. Some could ask why we 
even need this law. Because how can you sue the person who 
manufacturers a can of Campbell's soup if somebody buys that can of 
Campbell's soup legally and kills somebody by hitting them on the head 
with it? What if you buy an automobile, and you run somebody over on 
the street, are we going to sue the automobile manufacturer for that?
  What is happening in America is the classical concepts, the classical 
rules of litigation are being eroded. The courts are being politicized. 
That is a very dangerous thing. As a result, lawsuits are occurring in 
ways they should not occur and are impacting our daily lives.
  I conducted a hearing in the Subcommittee on Courts of the Judiciary 
Committee on the food industry. Should we sue the manufacturer of food, 
Little Debbie's, because somebody bought too many of them and became 
overweight and obese?
  Thirty, 40 years ago those lawsuits would have been laughed out of 
court. They don't meet the principle. A person is responsible for what 
they eat and how much, not the person who provides the cakes and 
cookies and Cokes and those kinds of things, unless that product is 
inherently dangerous and harmful to a person and the consumer does not 
know about it. We are getting away from that.
  With regard to gun dealers and manufacturers, this is the worst of 
all. The Federal Government and State governments have taken over the 
sale of guns. Regulations are many. I was a Federal prosecutor for 
nearly 14 years. I prosecuted people for selling guns. If they file off 
the serial number, that is a crime. If the gun dealer does not write 
down the serial number, he can be prosecuted and put in jail. If he 
does not get an ID from a person who buys a gun, if he does not 
ascertain and make that person sign a statement that they don't have a 
criminal record or make them sign a statement they are not addicted to 
drugs or mentally unstable, or if the dealer knows that and he sells 
the gun anyway, then he is in violation of the law.
  There are waiting lists in States and counties that dealers must 
comply with. If they don't comply with those rules, they can be sued--
not only sued, they can be prosecuted and put in jail. I have 
prosecuted and put in jail people who sold guns illegally. That is a 
fact.
  If we want more regulations on how guns ought to be sold, let's 
debate it right here and see if it is justified. We have had all kinds 
of amendments to put rules and bans and restrictions on innocent, law-
abiding people who choose to take advantage of the constitutional right 
to keep and bear arms. This is what we are talking about. Gun dealers 
have to comply with these rules, just like the gun manufacturers. And 
if they don't comply with them, they can be sued.
  This legislation would not keep them from being sued. What we are 
talking about is manufacturers who comply with the laws of 
manufacturing, and they sell the gun according to the rules, and a 
dealer takes it and sells it according to their rules, without any 
knowledge of the manufacturer in Massachusetts or wherever they make 
them. The gun dealer in California or Alabama or South Carolina sells 
it according to the law.
  Then some activist groups that believe we need to conduct guerilla 
warfare against a lawful industry want to promote these lawsuits. One 
of our Members said earlier: If litigation is the only thing to keep 
the gun industry in check, we ought to sue them.
  That is not right. If there is not a cause of action, you should not 
sue them. They are being sued and are having to expend hundreds of 
millions of dollars in their defense. They tend to win those cases at 
the bottom line. But they bring them, frankly, in big cities a lot of 
times, where there is an anti-gun hostility, where mayors want to crack 
down and eliminate gun ownership. We virtually have eliminated gun 
ownership in Washington, DC.
  They are not happy with what the legislation will do in passing the 
law. The elected representatives won't pass restrictions as tight as 
they would like to have or to eliminate gun ownership anyway, so they 
want to do it through the backdoor, through litigation. I don't like 
their idea: If they can't do it

[[Page 2454]]

this way through law and regulations, we ought to do it through 
litigation.
  I remember Hodding Carter, who used to work for former President 
Carter. He was on ``Meet the Press'' one time. He said something to the 
effect that: We liberals have gotten to the point where we want the 
courts to do for us that which we can no longer win at the ballot box.
  If we need to tighten up on gun restrictions, let's put the rule out 
here and debate that. But we don't need to be creating bogus lawsuits 
against people who are not doing wrong.
  I know the Presiding Officer was a JAG officer and served in the 
military. I defended a lawsuit against the United States Government 
because a veteran in a veterans hospital walked off the grounds and was 
murdered. They sued the hospital. There is a classical rule I have not 
forgotten: A criminal act is not foreseeable. You are not normally 
expected, anyone, to foresee someone will commit a criminal act.
  I defended that lawsuit on the grounds that, well, maybe he had 
gotten lost and this or that, got hit in the accident, maybe. But the 
principle that the hospital is responsible for an intervening criminal 
act did not justify the lawsuit.
  We won the lawsuit. That was a long time ago. I don't know if that 
would happen today, liberalizing the old principle of law.
  A gun manufacturer is not required and cannot be expected legally to 
foresee criminals will use the gun and who those criminals are. If we 
think they should not have guns, we have to pass laws. We have to amend 
the Constitution, frankly, to stop that. They are doing what is lawful.
  It is a good effort today. It would be healthy for our entire legal 
system that we confront this issue and allow the classical rules of 
liability to be followed again and not allow the abuse of it.
  We almost voted earlier on constraining liability of doctors who 
deliver babies. They are getting sued in incredible numbers. That is a 
difficult thing. How do you deal with it? We voted on it. Forty-eight 
Members of this body voted for that. But to a much more significant 
principle, a violation of the established rule of law, is this idea you 
can sue a manufacturer who produces a gun that does what it is supposed 
to do and gets in the hands of a criminal and they use it.
  How should you normally think you would sue a gun manufacturer? If he 
buys a gun and you fire it and it blows up and knocks out your eye. 
That is what you are supposed to sue the manufacturer for. If a person 
buys a gun from Smith & Wesson and he aims it and fires it and it hits 
the target exactly where he aimed it, the gun dealer is not 
responsible, if that was a lawful sale of the weapon. We set in this 
Congress and the cities and the States set additional restrictions on 
the sale of guns. When they do that and when dealers comply with that, 
they ought not to be sued.
  If they violate those laws, don't comply with the laws, or if they 
have absolute knowledge or actual knowledge a purchaser of a gun is 
going to use it for a bad purpose, then they have a responsibility. 
Absent that, they don't. And they should not be sued.
  This would be a good step in removing from our overburdened courts a 
host of abusive lawsuits that have no basis in principle and indeed 
should not be brought anyway. In fact, this legislation does not change 
any principle of American law, but basically clarifies it so these 
cases can be dismissed promptly rather than having to go through the 
length of time and the great cost that is going on in some of the areas 
of this country where the lawsuits are being brought.
  I know others want to speak on this issue. I see the Senator from 
Ohio and others. I believe this is good public policy. It is time for 
us to work hard to establish a more clear understanding of litigation 
in America. It has become confused. Congress has always had the power 
to define litigation and the parameters of it when it is in confusion 
and not working according to good public policy. We ought to speak out. 
I am glad there is bipartisan support for this. I think we will pass 
this bill and it will be a great step forward to improve the rule of 
law in America.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I will be brief. The Senator from Ohio has 
been on the floor a good long while and deserves to be heard.
  As you know, we are in a postcloture environment on a motion to 
proceed. I would hope by early afternoon we can actually get on the 
bill and begin to consider some amendments on this critical piece of 
legislation. It has been portrayed by many in many different ways. I 
would ask the Senators to pick up this very small document, 1805. In 
fact, there are exactly 11 pages of big print so all of us can clearly 
read it.
  I ask Senators to go to section 4 of the bill and read what we are 
doing. In a very narrow way, we are denying a third party the ability 
to reach through the law and say to a law-abiding gun manufacturer and 
a law-abiding firearms dealer: When you sold that weapon, it down the 
road got misused in a criminal act and, therefore, you are responsible.
  Shame on us for suggesting that as a basis of law today in our 
country. We have denied it. We have always held the individual 
responsible. That is clearly where we ought to go. That is why I think 
this ought to be a clean bill. There are some who want to offer 
different amendments. We can deal with them on a different day in a 
different way. Let's keep this bill clean. This is tort reform in the 
very narrowest of margins, and I hope Senators can work with us to make 
sure that in final passage we have a clean bill.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Hagel). The Senator from Ohio.
  Mr. DeWINE. Mr. President, I have the utmost respect for my colleague 
from Alabama who just spoke most eloquently, and I certainly have 
respect for my friend from Idaho who has brought this bill to the 
floor. I certainly have great respect for the many firearms dealers who 
are legitimate, honest, and hard working, and manufacturers around this 
country, but I must oppose this bill.
  I oppose this bill because it denies certain victims in this country 
their day in court. It singles out one particular group of victims and 
treats them differently than all other victims in this country. It sets 
them apart. It sets them aside, and it treats them differently. It 
denies them their access to court.
  It does not put a limit on their lawsuit. It does not put on a cap. 
It is not what we were talking about yesterday. Rather, it says they 
are barred from coming to court.
  It is unprecedented what this Senate, if I can count the votes 
correctly, is about to do. This bill shields a certain group of 
defendants. It establishes an immunity. This bill would overturn over 
200 years of civil law, 200 years of tort law, 200 years of common law. 
It would overturn over 200 years of civil law in this country and 
fundamentally change our justice system. It would, in essence, turn the 
civil justice system and our tort law on its head. It would do this by 
denying one group of our citizens access to the court system.
  Most fundamentally, the problem with this bill is it sets a 
precedent. It will not affect that many victims, that is true, but the 
real reason to oppose this bill is for the precedent it sets, because 
if we do it for these victims, what is to stop us from doing it for 
other victims? And if we don't care about these victims, will we care 
about other victims in the future, and will we do it to other victims 
who maybe some of us care about?
  Civil liability law is about encouraging people and industries to 
take responsibility for their actions, and it is also about protecting 
victims. It is about deterring irresponsible behavior by making sure 
there are incentives in place to encourage people to behave 
responsibly. It is about preventing bad conduct and holding people 
accountable under our common law.
  It is not and should not be about undercutting the ability of 
innocent victims to hold irresponsible people accountable for wrongful 
and negligent

[[Page 2455]]

actions. This bill, unfortunately, does just that. It undercuts the 
ability of innocent victims to hold irresponsible individuals 
accountable for harmful and negligent actions.
  The fact is, this bill cuts to the core of civil liability law and 
would essentially gut it. As my colleagues know, right now under 
current law throughout this country, to prove liability in a civil 
suit, the plaintiff only needs to prove the defendant acted in an 
unreasonable manner, if the defendant failed to meet his duty to act in 
a responsible fashion. That is basic common law, basic civil law, that 
his or her failure led to harm to the victim. Nothing more than that is 
required.
  We do not normally require a victim to prove that the defendant is 
guilty of a violation of the law, but this bill, however, provides that 
a victim cannot sue a gun dealer for damages resulting from illegal 
actions of a third party without also showing that a dealer is guilty 
of a violation of the law. So that in this bill, in effect, for a 
plaintiff to prevail in lawsuit and recover damages, he or she would 
not only need to prove that a gun dealer acted with negligence, that 
the dealer was irresponsible, but would also have to prove that the gun 
dealer also broke the law. In other words, the plaintiff would have to 
prove the gun dealer violated a statute or was guilty of a crime.
  There is one exception to this general rule built into this statute 
we are debating, and that is the so-called negligent entrustment 
exception. For the most part, this bill requires a defendant violate a 
statute before he is liable. We do not require this in any other place 
in our law. In civil law, sometimes it happens when you prove 
negligence, the defendant did violate a statute, but that is not a 
requirement. That is not something in a civil suit you have to prove.
  When you study law, one of the first things you learn is the 
difference between civil law and criminal law, and that someone can be 
liable in civil law to someone else and have to pay monetary damages 
and it not be a crime. That is a basic concept.
  What we are saying in this statute is, under these circumstances, 
with an irresponsible gun dealer, that the plaintiff would have to 
prove that the irresponsible gun dealer violated a criminal law. We 
don't do that anywhere else in our law. Why do we want to do it in this 
case? Why that special protection in this one case?
  If those who support this bill think that is such a great idea that 
we want to build this impediment into this law or the requirement into 
our civil law that you have to violate criminal law before you can sue 
someone, if that is such a great idea, let's just pass that law for 
everything. So in any civil suit in this country, you would have to 
find a violation of criminal law. I don't think we want to do that.
  If it is good for this victim, why is it not good for everything? 
Obviously, it is not. Obviously, we are not going to do that. I do not 
see anybody suggesting that.
  Clearly, this bill would make a major change in traditional liability 
law and is something we should more thoroughly consider and debate 
before we move toward a vote. Why is there such a rush to pass this 
legislation? This is legislation that I might point out never had a 
hearing. No witnesses were called. No one came in. Yet we are here on 
the Senate floor today. No discussion about this. Why is there this 
rush to bring this bill to the Senate floor? Why the rush to judgment?
  I have two thoughts. I guess the main reason we are here is because 
there are the votes here to do it. There is the power to pass this 
bill. When there are the votes, it can be done, and I can count. I know 
which way this vote is going to come out. There are the votes to pass 
it. So when there are the votes, I guess the job can get done. But that 
does not make it right.
  I ask my colleagues who have cosponsored this bill or are thinking 
about voting for it to think one more time, to think about the 
precedent that is being set. Yes, undoubtedly there are frivolous 
lawsuits that are being filed against this industry. There is no doubt 
about that. But there are legitimate victims who when this legislation 
is passed will not be able to file their lawsuits.
  Why not trust the good judges we trust in every other civil suit in 
this country to make the decision to throw out those frivolous 
lawsuits? There are frivolous lawsuits filed in this country every day 
in all kinds of cases, and we trust the good men and women, the judges 
who sit on our benches, to get rid of those cases.
  By and large, they do a pretty good job kicking them out of court. 
Why penalize the people who might have a legitimate case and kick them 
out and deny them, in fact, the opportunity to ever get to court at 
all?
  The precedent is what I worry about. I worry about the victims in 
this case, but I worry about the precedent because if we, who have the 
votes to do this today to this group of victims, say we are going to do 
it because we have the votes to do it, we have the power, whether it is 
because this lobby is more powerful for whatever reason, what about 
when the next lobby comes along and they happen to have the votes? 
Maybe it is a set of victims you worry about or you care about who will 
be blocked from coming to the courthouse and filing their case. What if 
it is your child, your mother, your father, your wife, or your husband, 
and they happen to be among a group of victims who some lobby has put 
together enough votes to convince Congress to deny them the access to 
come to court? Their day may come. So, yes, I worry about the victims 
we are going to disenfranchise and block from coming to the courthouse 
by this bill. But more than that I worry about the precedent we are 
setting by this bill.
  I worry about the day in the future when another lobby group, another 
Congress, has put together enough votes to come to this floor to deny 
another set of victims the right to have access to the courthouse. I 
think that is what should bother everybody else in this Senate.
  Let me make a prediction about this group of victims. Yes, the 
passage of this bill will get rid of some frivolous lawsuits. There 
will be lawsuits that will never be filed because of this bill, no 
doubt about it. But let me make a prediction to everyone who is 
thinking about voting for this bill. Mark my words, if this bill 
passes, in the future there will be a case or cases that will be so 
egregious and so bad that when they are read about and it is found out 
that that victim could not file a lawsuit and could not file that 
lawsuit because this Senate voted not to allow that victim to file that 
lawsuit, it will be so bad, it will turn one's stomach. Mark my words, 
that will happen if we pass this legislation.
  A second reason which has not been stated or discussed as to why 
there is such a rush to judgment and why some people are in such a big 
hurry to get this bill passed: We are having a great increase in crime 
technology. One of the great things that has happened in the last few 
years is our ability to trace guns and ballistics. We are putting great 
systems together in this country, and many of us in the Senate have 
worked hard to do that. We have the ability in law enforcement to trace 
these guns better today.
  I think some of the irresponsible--notice I say ``irresponsible''--
gun dealers are worried about that because they know their days are 
numbered. They know when they ship out all of these guns, put them out 
on the market, guns that are just getting by today, they know they are 
going to be able to be better traced and they know they are going to be 
more liable and we are going to have the ability to trace them.
  I believe the passage of this legislation will be more damaging in 
the future than it is even now. As ballistics technology improves, law 
enforcement will be better able to find the original source of crime 
guns, and that oftentimes would be back to a dealer who should not have 
sold the weapon in the first place. To the extent that we immunize 
these negligent dealers now, we will be decreasing their incentive to 
act responsibly and therefore deny their victims their day in court.
  There is another aspect about this bill that has not been talked 
about a lot, and that is the fact that it is retroactive. How dare us 
in the Congress

[[Page 2456]]

come to the Senate floor and wipe out every lawsuit that has been filed 
in this country that would come within the parameters of this bill. How 
arrogant of us to do that. In this Congress, we have the arrogance to 
come to the floor and pass legislation that wipes every case out in 
every State in the Union where there is a lawsuit pending. Did we 
really get elected to the Senate to do that? That is what this bill 
does. It will kick people out of court. It would not just bar people 
from coming to the courthouse. That is not enough. No, what this bill 
does is kick people out who are already in court. It kicks out people 
on whom judges have already ruled summary judgments, motions to 
dismiss, and have already made decisions that the case is at least 
valid enough to go forward and to go to trial. We are saying, oh, no, 
judge, we are now going to kick that case out of court and take it away 
from you and throw that person out of court. To me, if we do that, it 
would be the height of arrogance. I think that is wrong.
  It is not my job to judge these cases. It is not my job to determine 
whether one of these cases should proceed or should not, or determine 
whether someone is negligent or not negligent. But I don't think, on 
the other hand, it is my job to say someone should not have the right 
to go to court and present that to a judge and ultimately, in most 
cases, to present that to a jury. That is fundamentally the American 
way.
  Let me talk about a couple of cases. We don't need to look too far to 
find legitimate cases that would be dismissed if this bill were to 
become law. Everyone remembers all too well the tragedies of the DC 
sniper cases. Some of the victims of the DC snipers are suing the 
Washington State gun retailer known as Bull's Eye Shooter Supply for 
allowing John Malvo to walk off unnoticed with a 3-foot semiautomatic 
assault rifle. In fact, there were allegations that Bull's Eye not only 
failed to report the missing assault rifle, this particular missing 
assault rifle, but also failed to report over 230 other missing 
firearms because Bull's Eye was never aware that over 230 guns were 
missing, in total. That is absolutely unbelievable.
  It is, of course, totally unacceptable for a firearm dealer, a 
retailer, to so poorly monitor and protect its stock. If these 
allegations are proven true--again, I don't know if they are true--then 
Bull's Eye should be held accountable for the negligent fashion in 
which it handled these weapons. Under the provisions of this bill, 
however, such behavior would be protected from private lawsuits. We 
would in effect be saying it is OK to allow unknown people--without, of 
course, background checks--to walk off your premises with hundreds of 
guns, be they criminals, terrorists, or in this case an underage serial 
killer.
  There is another case in Worchester, MA. This bill would not only 
prevent recovery for the victims of the DC sniper, but the family of a 
young man killed in Worcester, MA, by the name of Danny Guzman would 
also be barred from recovering for the negligence that caused his 
death. In that case, Danny Guzman was shot and killed with a gun taken 
from a gun maker by one of his own employees. The employee had a 
significant record of violence and drug abuse but was able to steal the 
gun because apparently the gun maker allowed this criminal free access 
to his guns without any legitimate check of his background and also 
failed to implement effective security procedures that would have 
prevented the theft. Indeed, this gun maker could not account for at 
least 50 of his firearms. If this bill were to pass, Danny's family 
would be barred from continuing their suit against the gun maker for 
negligence in completely failing to screen its employees or secure its 
facilities to prevent repeated thefts of guns.
  Let me talk about another pending case--again, I emphasize, this is a 
pending case--that would be affected by this bill. In this case, a 
couple entered a gun shop. This was referred to by my colleague from 
California a few minutes ago. A couple entered a gun shop. The man 
identified several weapons he was interested in purchasing. The woman 
he was with was not involved in the discussions between the man and gun 
shop owner and clearly didn't know much at all about guns. Then she 
purchased these guns and she paid cash. She paid cash for them.
  The man in the gun shop, because he was a convicted felon, was 
prohibited, of course, from purchasing guns. The woman, however, was 
allowed to buy them on his behalf. The man then illegally sold the guns 
on the black market. One of these guns was used to shoot at least one 
police officer.
  Clearly the gun shop owner should have known what was going on. The 
woman, while technically the purchaser, obviously was merely carrying 
out the wishes of a convicted felon. Therefore, the owner should never 
have sold her the guns in the first place. That would appear at least 
to be negligence. Obviously the criminal who shot the police officer 
should go to jail. But the dealer who negligently supplied that gun to 
the criminal should be civilly liable for his negligence as well. 
However, if this bill becomes law, it is likely the gun shop owner will 
be immune from liability.
  As I mentioned earlier, there is a possible exception written into 
the law known as negligent entrustment, that might arguably, in this 
case, allow the lawsuit to go forward. We don't know. But many courts 
have construed that exception in the past narrowly under the common 
law, so it is a close call in a case such as this. Candidly, though, 
why in the world would we even want to take a chance this sort of 
irresponsible behavior might be immune from liability?
  The point is, we can argue these cases. I know some of my colleagues 
might come to the floor and say under our bill maybe these cases could 
proceed. Maybe they could proceed. The point is, Why take a chance? Why 
take a chance? I would argue the three examples I have given. This bill 
could stop these cases cold in their tracks, and in each one of the 
cases I have cited, we have lawyers we could bring in, if we could get 
a hearing, who would swear under oath these cases, in their legal 
opinion, would be stopped by this bill. We could debate that. But the 
point is, why take the chance? Why pass a bill that would create that 
kind of legal impediment to people proceeding?
  Again, we get to the point I raised earlier, and that is the 
inequity, the inequality of creating two classes of victims in this 
country. Other industries face legal challenges. Other industries have 
had lawsuits filed against them they don't like. Other industries face 
suits that in their eyes many times are frivolous and they have cases 
thrown out of court. Other industries are involved in cases where many 
people die. We understand that. But we don't grant this kind of 
immunity from civil liability.
  For example, the auto industry. There are 42,000 or 43,000 Americans 
who die in car accidents every single year. We wouldn't think of coming 
to the floor and granting any kind of immunity like this for the auto 
industry, would we? No, we wouldn't. We wouldn't think of that for the 
world. We can each come up with our own example.
  But here we are today picking one industry for no reason. We all know 
what the truth is, for no other reason than that they have simply put 
together the votes to do it. They are here and they have the votes. If 
I count correctly, they are probably going to get this passed. But that 
doesn't make it right. Victims are going to suffer and there will be 
victims in the future who will be denied their opportunity to go to 
court.
  It is wrong. I support the second amendment. I support individuals' 
rights to own guns. I support gun manufacturers. I support legitimate 
gun dealers. But this is wrong; it is unfair. It is unfair to victims. 
But more important than that, it is a horrible precedent.
  If we do it this one time, what is to stop a future Congress, where 
the votes are maybe configured differently, from saying, oh, there is 
another group of victims and we are not going to protect them. We are 
not going to protect them.

[[Page 2457]]

  If we deny this group of victims their rights, what is to stop a 
future Congress from denying another group of victims their rights?
  Let us think about that before we cast our vote. I thank the Chair. I 
yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I want to first commend my colleague from 
the State of Ohio. I was listening to his presentation. It was a 
reasoned presentation which I think analyzes this bill in a fair 
manner. I want to also salute his political courage. It is not easy on 
his side of the aisle to stand up and oppose this bill. He has done 
this time and again on many issues. I am happy to count him as a friend 
and as a colleague whose judgment I value very much. I thank the 
Senator from Ohio for his continuing leadership in this Chamber.
  Mr. President, what is this bill? S. 1805 is a bill brought to the 
Senate floor by the National Rifle Association on behalf of firearms 
manufacturers, dealers, and their own trade association. It is a bill 
that has been introduced to insulate those manufacturers and dealers 
and the NRA itself from liability for wrongdoing. It is unimaginable 
that we would name any other industry in America and say that you can 
sell your product and not worry about being held accountable, if you 
did it in an irresponsible and negligent way. We wouldn't think of 
doing it, but we are doing it with the gun industry.
  I can count votes. I can count the cosponsors. A majority of my 
colleagues support this bill. I can't explain it. I could never explain 
it. In a country where we value the right to own and use firearms 
legally and responsibly, we have a bill which says we will protect 
those who sell and use firearms illegally and irresponsibly. Why? Why 
does the Senate reach this low point--possibly one of the lowest points 
in its history when we are carving out an exception from liability for 
gun manufacturers and gun dealers? Maybe my colleagues who support this 
don't watch the evening news in cities across America. Maybe they do 
not see the blood and gore in the streets of cities from the misuse of 
firearms used illegally and irresponsibly that have caused so much 
heartache and misery for families across America. Frankly, I think they 
are ignoring the obvious--that unless we ask those who own firearms to 
establish a standard of use that keeps them away from those who misuse 
them, that we, in fact, are inviting more restrictions on the legal use 
of firearms. This bill--this outrageous bill--is going to draw us again 
into a national debate which is long overdue.
  Since President Bush was elected and during his campaign, the NRA 
said once he is in the White House we don't have to worry about any 
restrictive legislation. Since President Bush's election, we haven't 
had an honest debate about a gun issue in Congress. That is a fact. Gun 
crimes continue, gun deaths continue, and the proliferation of weapons 
in the hands of those who misuse them continues. We ignore it, but we 
can't ignore this. This is not an effort to restrict gun ownership. 
This is an effort to restrict the legal ranks of the victims of gun 
crimes.
  There is a crime victims' amendment which has been supported by both 
sides of the aisle--Senator Kyl, a Republican, and Senator Feinstein 
from California, a Democrat. They make an impassioned plea for a 
constitutional amendment to make certain that crime victims and their 
families will be present in important parts of criminal proceedings. It 
is a compelling argument. I had my personal questions as to whether it 
rises to the level of a constitutional amendment, but I would be happy 
to enthusiastically support a Federal statute that would establish that 
right.
  I believe when it comes to victims, they need to be a part of the 
process of prosecution. They need it not only because they are 
important to the process but because it brings closure in their own 
lives.
  The many Members of the Senate who rush to the side of crime victims 
for this constitutional amendment are the same Members of the Senate--
many of them--who are supporting this legislation which will close the 
courthouse doors to crime victims and their families across America 
when firearms are involved. Don't tell me your sympathies are with 
crime victims. If your sympathy is with the victims of crime, you have 
to vote no on this.
  Let me give you an illustration in my home State of Illinois.
  Five years ago, in June of 1999, a man named Benjamin Smith went on a 
shooting rampage in my State. You may remember it. It was finally 
discovered that he was linked to a group known as the World Church of 
the Creator. He was a follower of a white supremacist. And in his 
mania, this demented disciple went on a shooting spree across the 
Midwest. In June 1999, Benjamin Smith attempted to purchase guns from a 
licensed gun dealer. He was denied because a background check turned up 
a domestic violence restraining order which prohibited him from 
purchasing a gun. So he turned to someone he knew on the street who 
could buy a gun--a gun trafficker named Donald Fiessinger. Fiessinger 
routinely bought handguns--usually Saturday night specials, cheap 
little crime guns--from a place called the Old Prairie Trading Post in 
Pekin, IL. Mr. Fiessinger would then resell these guns through 
classified ads in a local newspaper. Over a 2-year period, Fiessinger--
this gun trafficker--purchased 72 guns, three a month on average, from 
the Old Prairie Trading Post in Pekin, IL, and then turned around and 
sold them.
  The gun store never even asked at any time whether these guns were 
going to be used for Fiessinger's personal use.
  I think it is pretty obvious. Buying three guns a month for 2 years--
I don't care whether you are a target shooter or interested in self-
defense, I can't imagine a need for the 72 cheap Saturday night 
specials which Fiessinger was buying from the dealer.
  The manufacturer of these cheap crime guns, of course, didn't place 
any restrictions or conditions on dealers like the Old Prairie Trading 
Post. It didn't say you should prevent the large volume sale of guns to 
people who are obviously turning around and reselling them to gun 
traffickers.
  As a result, this Benjamin Smith bought two guns from Fiessinger, and 
then he went on a 3-day, hate-filled shooting spree across Illinois and 
Indiana. It was a shooting spree inspired by his hatred and his 
bigotry. He targeted racial and religious minorities. When it was all 
over, he killed two people and wounded nine others.
  Five of those victims joined in a lawsuit against both the 
manufacturer of these cheap Saturday night special weapons, as well as 
the distributor. They included Sherialyn Byrdsong--we know that name in 
Chicago and in the Midwest. It was her husband, Ricky, a former 
basketball coach at Northwestern University, an African American, who 
was shot in the back and killed as he walked with his children down 
their residential street in Skokie, IL; on behalf of the family of Won 
Joon Yoon, a 26-year-old South Korean graduate student at Indiana 
University, who was shot twice in the back and killed on the steps of 
the Korean United Methodist Church in Bloomington, IN, picked out of 
the crowd because he had the appearance of an Asian; Rev. Stephen 
Anderson, a minister who was shot on his way to join his family at a 
Fourth of July celebration; Hillel Goldstein--whom I met--one of six 
Orthodox Jews picked out by Benjamin Smith on his shooting spree when 
he drove through a predominantly Jewish neighborhood in Chicago, 
hunting for Jewish families walking to the synagogue for temple 
services; and, Steven Kuo, another graduate student at the University 
of Illinois.
  These five survivors and families brought a lawsuit. The case is not 
based on the fact that the gun was present and used in these crimes. 
The case against the manufacturer, Bryco Arms, is based on the 
intentional and reckless sales and distribution practices because Bryco 
took no reasonable steps to ensure that their guns were not diverted to 
prohibited customers.
  Although Bryco asked the court to dismiss the case, the court ruled 
that a

[[Page 2458]]

claim of public nuisance should go forward against this manufacturer.
  In October 2000, the gun dealer, Robert Hayes of the Old Prairie 
Trading Post, was indicted on 13 counts of violating Federal firearms 
sale laws because he didn't get approval for the sales from the 
Illinois State Police before transferring guns to that trafficker, 
Fiessinger. The seventh count of the indictment concerned the gun used 
in the Benjamin Smith shooting spree.
  Robert Hayes pled guilty to one count of making an illegal sale of a 
gun and was sentenced to 2 years of probation. Fiessinger also pled 
guilty and was sentenced to 10 months in prison and 2 years of 
supervised release.
  Despite this acknowledgment of criminal activity by the dealer and 
the gun trafficker regarding the sale of firearms, the lawsuit brought 
by the victims of Benjamin Smith would be terminated by this bill. The 
families and the survivors from the shooting spree would have lost and 
will lose their right to go to court because this bill says that even 
if the manufacturer is irresponsible in distributing the weapons and 
the dealer is irresponsible in selling those weapons to a trafficker, 
this bill says they cannot be held accountable despite the fact that 
people died and were injured on this shooting spree. Although this gun 
dealer, Robert Hayes, pled guilty to making an illegal sale, the gun he 
pled guilty to illegally transferring was not the gun used by Benjamin 
Smith. That is crucial. Smith's gun was under count 7, an indictment 
Hayes did not plead to. Therefore, the criminal conduct of the dealer 
did not cause the shooting. So the exception in this bill would not 
help.
  As a result, Hayes, the gun dealer, the Old Prairie Trading Post, was 
free to argue that the victim's case should be dismissed because he 
could not be held liable for the lawful sale of a gun. The court ruled 
against his motion and held that it would allow a claim for public 
nuisance and negligence to continue. If this case were frivolous, the 
court would have dismissed it. It was not frivolous. People were dead, 
injured, and someone should be held accountable for it.
  Why, then, should we in Congress, in the Senate, step into this 
lawsuit, not only prospectively but retroactively, and say to the 
families of the victims that they have no right to go to court, to hold 
the manufacturer accountable for irresponsible distribution practices, 
they have no right to go to court, as this bill says, and hold a dealer 
responsible, a dealer that is literally feeding firearms and Saturday 
night specials to gun traffickers? That is what this bill says.
  I point out the exceptions in this bill are so narrowly drawn that 
even if this gun dealer pled guilty to count 7 for not seeking approval 
from the Illinois State Police before the sale, the victim's case would 
still be terminated.
  The third exception provided in the bill requires that the violation 
of law be a proximate cause of the harm for which relief is sought.
  In this case, if Hayes, the dealer, had sought approval from the 
State police, the police would have granted it because Fiessinger was 
not a prohibited purchaser. Therefore, regardless of whether Hayes 
violated the law, Fiessinger would have been able to purchase the 
weapon and resell it to Smith. So there is no way around it.
  This bill is designed to stop those families and those victims from 
holding an irresponsible gun dealer for peddling guns to a trafficker 
used in the commission of a crime.
  The Senator from Ohio said it best a few minutes ago: It is an 
outrage that we would say, retroactively, we are going to throw these 
suits out of court; that we would say to these families, these crime 
victims, they will lose their day in court. Why? To protect a special 
interest group--gun manufacturers, gun dealers, and trade associations 
such as the National Rifle Association.
  Take a step back for a moment and look at the big picture. We have a 
case that the court in Illinois has ruled is not frivolous, a gun 
dealer and trafficker who have already pled guilty to illegal firearms 
sales, and yet this legislation would close the courthouse doors for 
the tragic victims of this shooting spree.
  Let me give one other case that amply illustrates why this bill is so 
bad. Michael Ceriale, a 26-year-old Chicago police officer, was shot by 
a 16-year-old member of the Gangster Disciples, one of the terrible 
street gangs that, unfortunately, wreak havoc on many neighborhoods of 
the great city of Chicago. This police officer, 26 years old, was 
killed conducting narcotics surveillance. Once again, the mere use of 
the gun is not the underlying cause of action. In this case, his family 
sued the manufacturer, Smith & Wesson for shipping the gun used to kill 
the officer to the distributor, Camfour. Smith & Wesson sold this 
weapon to Camfour, even though it knew or should have known that 
Camfour, the distributor, was part of a core group of irresponsible 
distributors that act as the initial distributors for nearly 80 percent 
of the firearms traced to crimes in the city of Chicago.
  There is ample evidence that when we trace back crime guns, we find 
there are a handful of irresponsible gun dealers that are selling these 
guns on a wholesale basis to gangs and to gun traffickers. It is 
outrageous that this continues in this country.
  For those irresponsible gun dealers, there is good news in S. 1805. 
You are off the hook. S. 1805, brought to us thanks to the National 
Rifle Association, says that if you are one of those irresponsible gun 
dealers selling to traffickers, selling to criminal gangs, shooting 
innocent children on the street, killing police officers, you are off 
the hook with S. 1805.
  They argue it is part of your second amendment right to be able to 
sell guns on a wholesale basis to be used by criminal gangs across 
America. Incredible.
  This Camfour, the distributor, then shipped the gun to Strictly 
Shooting, even though it knew Strictly Shooting was part of 24 gun 
dealers that were responsible for 27 percent of the crime guns 
recovered in the city of Chicago.
  On August 15, 1998, the gun found its way into the hands of a 
Gangster Disciple gang member, who killed a 26-year-old Chicago police 
officer, Michael Ceriale. Unfortunately, this case, even though it has 
been upheld by the court of appeals in Illinois, would be dismissed 
because its cause of action is based on the claim of public nuisance, 
which does not fall into one of the narrow exceptions written into this 
bill.
  Now, all who stood with pride and admiration for the men and women in 
uniform, those policemen and those firefighters who rose to the 
occasion on September 11 and protect us every single day, all Members 
in the Senate who say to these men and women that when they put their 
badges on in the morning as police officers and put their lives on the 
line that we can never thank them enough, all who give speeches back 
home about the law enforcement officers who keep our communities safe, 
should keep in mind that S. 1805 is a cop killer bill. S. 1805 says 
that cop killers such as the Gangster Disciple gang members who killed 
Michael Ceriale in the city of Chicago, those cop killers are going to 
get a free ride because of S. 1805. The family of this 26-year-old 
police officer, going to court to recover money for those irresponsible 
activities by the manufacturers, distributors, and gun dealers, will 
have the courthouse door slammed in their faces.
  Cop killers will love this bill. Frankly, those that supply the guns 
to these cop killers should be ashamed of themselves and be held 
accountable. But they will not be.
  So in those two illustrations from my home State, crime victims of a 
shooting spree will lose their right to go to court, to hold gun 
traffickers responsible under this bill, and the family of a fallen 
Chicago police officer who gave his life trying to stop the drug trade 
in that great city will have the courthouse doors slammed because the 
National Rifle Association wants this bill and wants it desperately. 
That is a sad commentary.
  I remind my friends, do not stand before the Senate, saying how much 
you care about crime victims, how much

[[Page 2459]]

you care about the police who risk their lives every day for us and 
then turn around and support this terrible legislation.
  You cannot have it both ways. You cannot let guns flood America's 
streets to be used with criminal intent on a day-to-day basis, guns 
that are sold to criminal gangs, guns that are sold to deranged 
individuals. You cannot stand by and watch that happen and then protect 
those responsible for the sales with this legislation. That is exactly 
what is happening.
  I thank the Senator from Rhode Island, Senator Reed. He has been a 
leader on this issue. We have talked about the DC sniper case, which I 
know will be addressed time and again during the course of this debate. 
I make it clear that this was no isolated case in the District of 
Columbia when these two men went on a shooting spree killing innocent 
people in every direction. Sadly, these things are being repeated over 
and over.
  To my friends who are following this debate who are hunters, 
sportsmen, target shooters or own a gun for the self-defense of 
themselves and their family, I plead, stop for a moment and think about 
this. To protect your rights in America, to use guns legally and 
responsibly, you must tell those like the National Rifle Association, 
that their agenda on this issue is too extreme. What they are trying to 
do is to protect those who use guns illegally and irresponsibly. In 
their passion to do that they are jeopardizing your rights. They are 
raising a question which ultimately will come back to you, the legal 
owner of a firearm, as to whether or not we have gone too far in 
America.
  We were told, of course, when President Bush was elected to expect 
this. The National Rifle Association would have its day. We were told 
they have a friend in the White House. It is abundantly clear that 
President Bush is going to sign this bill. But what is not clear to me 
is how my colleagues in good conscience can support this legislation. I 
cannot understand this. Day after weary day we come to the floor of the 
Senate and say that individuals across America are going to be denied 
the right which we have considered part of our American birthright, the 
right to walk into a courtroom, rich or poor, to stand before a judge 
in a court of justice, and to ask for fair treatment, to ask that 
others be held accountable, and to let that court, that judge, that 
jury make that decision.
  Clearly, we are seeing, day after day, an attempt to erode that right 
to go before the jury of your peers, your neighbors, and to let them 
decide what is just and what is right. In this case, unlike the other 
cases, it is not just a matter of money, it is a matter of life and 
death--life and death for crime victims, life and death for police 
officers.
  That is why the Major Cities Chiefs Association opposes this 
legislation. They know what this means. They know that police officers 
across America will be targeted because of this bill. They know their 
families, once they are killed in the line of duty, will have fewer 
options to turn on those who have used guns and those who have 
purchased guns illegally. They know that.
  The Major Cities Chiefs Association, the Brady Campaign To Prevent 
Gun Violence--all of these organizations have made it clear this is a 
terrible bill. It is a bill that should be defeated. I sincerely hope 
my colleagues will join in support of stopping and thinking twice 
before they vote for its passage.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, let me remind my colleagues again that we 
are in a postcloture environment. We are hoping we can get on the bill 
and hoping we can look at some amendments. I do have to respond to try 
to keep this debate clear and honest and the Record representing what 
it ought to represent.
  My colleague from Illinois says the reason we have this debate today 
is because of George W. Bush. He forgot that 10 Democrat cosponsors and 
his own leadership are cosponsoring this bill and are openly advocating 
its passage. This is not about George W. Bush. This is about the rights 
of Americans under existing law, and also frivolous third-party 
lawsuits that we ought to block. That is what the essence of this 
debate is about.
  Now, certainly the Senator from Illinois can say what he wishes to 
say on the floor. Will George W. Bush sign this bill if it gets to his 
desk? He says he will. I would think any law-abiding American U.S. 
President would want to preserve law in this country, the kind of law 
that would suggest that any President would want to reinforce centuries 
of legal precedents based on one premise, individual responsibility.
  Are we suggesting that, as the Senator from Illinois suggests, a gun 
manufacturer ought to be liable for a criminal act of a third party? 
Well, he used the word--let me see; I have written it down here--
``establish a standard of use.'' I believe that was the term used.
  How many automobile dealers establish this standard of use of their 
product when it is manufactured in his State and sold in the 
marketplace, that it will be used safely and lawfully? Now, would any 
automobile manufacturer intentionally sell a car knowing a drunk was 
going to get in it and wipe out a teenager or a teenager wipe out an 
adult?
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. CRAIG. Not at the moment. I want to be quick here so I can yield 
to one of your colleagues.
  Of course they would not.
  Does any manufacturer of a legal firearm make the clear assumption 
that it is going to be used illegally? Of course they do not. They make 
them under the guidelines of the law. They abide by the law. And we 
protect those who do. We do not--we do not--protect those who do not 
abide by the law.
  The Senator also went on to say that this would somehow protect trade 
associations. Go to the bill. You have held it up. I wish you would 
read it in detail. It is not the intent of our bill to do so. In fact, 
the Daschle amendment clarifies that we do not necessarily protect 
trade associations. Well, then you better talk to Senator Daschle. He 
is the amender of the legislation that is before us to clarify that 
point. We believe we have effectively clarified it, and the 
Congressional Research Service says we have done just that.
  So if a trade association acts negligently, acts outside the letter 
of the law, then they are every bit as liable as they would be under 
current law. So we do not reach out to do that.
  Do we close the courthouse door? Absolutely not. The plaintiff makes 
it to the courthouse, with his or her attorney. They argue it before 
the judge. The judge weighs it in light of the law--if this were to 
become law--and makes the decision as to whether that case can go 
forward. I think that is clearly an important argument that needs to be 
established.
  As to the argument about lawsuits involving, what they describe as, 
high volume gun sales--I think he spoke to a tragic situation in 
Illinois--the regulations of the numbers of guns that can be sold in a 
single transaction, however, are not the job of the courts. They are 
the job of the legislators. They are that Senator's job and this 
Senator's job, if you can gain a majority of the votes to establish a 
certain number of gun sales per day. The job of the dealer is to check 
the background, to check the legality, and to do so openly and 
knowingly.
  Now, having said that, let's talk about the dealer. In S. 1805, we 
exclude from its protection actions brought against a transferer 
convicted under section 924(h), title 18 of the United States Code, or 
a comparable State felony law. 18 U.S.C., section 924(h), provides: 
whoever knowingly transfers a firearm knowing that such firearm will be 
used to commit a crime of violence or drug trafficking crime shall be 
imprisoned not more than 10 years, fined in accordance with this title.
  S. 1805 does not wipe out this provision of the United States Code. 
We intentionally narrowed its focus so that would not happen.
  The Senator from Illinois is rightfully concerned about the 
trafficking of firearms, as am I. I certainly do not want that to 
happen. But what I do not want to happen either is for hard-working men 
and women of this country--

[[Page 2460]]

many of them union men and women--who are working in firearms 
production in this country today for civilian use and for military use, 
to lose their jobs because their company has simply been strangled to 
death by lawsuit after lawsuit after lawsuit. That is what is 
happening.
  We have lost thousands of legitimate jobs in this country because 
this industry is a very small industry in total. Put it all together, 
and it is less than a Fortune 500 company. That is why it is extremely 
cautious about how it operates within the law, and it is why our judges 
have recognized the frivolous character of these lawsuits and have 
thrown them all out.
  The problem is simply this: It costs hundreds of millions of dollars 
to argue the law and to argue before the courts and to continue this 
legal dance that certainly those who are now engaged in it put law-
abiding manufacturers and dealers through. Well, that is going to be 
part of the argument we look at here.
  But I do ask our colleagues to focus on the bill, to understand how 
narrowly it has been designed. It is a product of a bipartisan effort, 
not a single-interest effort but a bipartisan effort, to reform our 
tort process in a way to deny a very particular frivolous kind of 
lawsuit of the kind that is addressed in S. 1805.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I wanted to ask a question of the Senator 
from Idaho but he did not have an opportunity to yield, so I will make 
a statement and then yield the floor to the Senator from Washington who 
has been waiting patiently.
  I missed it. I am sorry, and I apologize. I thought this was a bill 
to protect a special interest group, and it turns out it is a jobs 
bill. If I had only known that. We have lost almost 3 million jobs 
under this President, and this is being offered to create jobs. I have 
to take another look at this. Because, frankly, if protecting gun 
carnage on the street is going to create jobs, where does that leave 
us? Where does that leave us? If we reduce gun violence on the street 
and the number of victims, it is going to cost us jobs. Well, I guess 
you can argue that. It would be less work in the trauma centers, less 
work in emergency rooms, less work in the rehabilitation centers from 
the gun violence victims.
  I guess we would lose some jobs. I guess the Senator from Idaho is 
right. What a price to pay--your money or your life.
  The argument has been made we have to support this bill to protect 
American jobs. Crime victims and their families who have had someone 
killed or maimed with a weapon won't be able to go to court to hold the 
manufacturer and dealer responsible because we need jobs in America. 
Has it come to this? Have we reached this point?
  Let me say to my friend from Idaho, I don't understand what he said 
about trade associations. I turn to page 11 of the bill, and it is all 
about trade associations. As I read that, I can't help but believe that 
written between the lines are three letters: N-R-A. Isn't that what it 
is all about? So the trade association that is being protected by this 
bill is the National Rifle Association?
  If it isn't about trade associations, strike the whole thing. Get rid 
of it. It is all over this bill, protecting trade associations.
  I might say his reference about transfers to individuals knowing that 
they will use it for a crime, the legal standard most of us learned in 
law school is ``knew or should have known.'' There is a world of 
difference between knowing you are going to use a gun for a crime or 
the fact I should have known it. Because Mr. Fiessinger was buying 
three guns a month for 2 straight years, at some point I should have 
known something is odd about his behavior. He was not buying guns for 
personal use or for self-defense. He was a gun trafficker.
  Did I know as a dealer that he went outside the door and sold it to 
someone who used it for a crime? There was no way I would know it. I 
was inside the store. But should I have known? You don't include that 
standard in your bill. You intentionally exclude it because it is the 
obvious and real life standard people are held to.
  Now that I know this is a jobs bill, I will have to look at it long 
and hard. We need jobs so desperately in America that we are going to 
close the courthouse doors to the widows and families of slain police 
officers for fear if they recover from a gun dealer who is selling guns 
to criminal gangs, somehow or another that is going to cost us jobs. 
What a sad rejoinder that is the defense for this bill.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Washington.
  Ms. CANTWELL. Mr. President, I am glad this debate has finally turned 
toward jobs. For the last 2 days we have been having a debate about 
what groups to exempt from liability. One of the groups we need to be 
talking about--because they have paid a heavy price for the liability 
of our economy--is the unemployed workers in America. Because we won't 
reinstate the federal unemployment benefits program, unemployed workers 
are being held liable for our economic recession.
  I am glad my colleagues are finally talking about jobs. We need to be 
questioning whether jobs are being created in this country. We need to 
ask whether we believe in the President's economic forecast for this 
year, in terms of the job growth he says is going to take place, or 
whether we don't believe those numbers and we want to do something 
about unemployment.
  In the past few weeks, we have heard much about the number of jobs 
that will be created this year. And we've also heard some backpedaling 
based on economic modeling, statistics and rounding errors. In the end, 
they say that the economy is going to grow by X number by the end of 
this year, and we don't have to worry about the unemployed.
  The bottom line, however, is that the economy isn't going to create 
enough jobs to put America back to work. And since this recession 
started in early 2001, millions of people have lost their jobs through 
no fault of their own, and millions are still out of work. After the 
recession began in March of 2001, this country faced another blow: 9/
11. In addition to the horrific personal losses resulting from that 
tragedy, our national economy and my own State's economy was gravely 
hit in a variety of sectors that caused huge job loss.
  And here we are today, still with 2.3 million fewer jobs than in 
January 2001. And yet, some of my colleagues on the other side of the 
aisle would like to say the economy is recovering and we don't have to 
do anything about helping unemployed workers.
  Part of our job at the Federal level is to use the Temporary 
Emergency Unemployment Compensation program to help laid-off workers in 
times of economic decline. This program is funded by employer, and by 
extension employee contributions. They are paying into a Federal 
program that is supposed to help in downturns of our economy to keep 
people--with mortgage payments, hospital payments, health insurance--
going until they actually have an opportunity for jobs in the future. 
This has been a essential program.
  At the State level, a laid-off worker can get 26 weeks of help. But, 
during recessions that's often not enough to get back to work. So the 
Federal Government has said that in times of high unemployment, we're 
going to step in. After a laid-off worker has exhausted their state 
benefits, a Federal program will kick in that provides an additional 13 
weeks of help. In some instances where States have really been hard hit 
by high unemployment, such as my state, which had for a time over 7.5 
percent unemployment, there is an additional 13 weeks of help. But 
somehow this body has decided, after much debate, that we were not 
going to continue that program.
  In fact, in December of last year we tried numerous attempts to pass 
unemployment benefit extensions. We tried to get the other side of the 
aisle to agree that this was a necessary step. We were rebuffed by 
people saying the

[[Page 2461]]

economy is going to get better, the economy is going to get better, so 
we don't need to do this.
  I found it amazing that people on the other side of the aisle, when 
we returned in January, were still asserting that in that debate: The 
economy is going to get better.
  Now the President and his Cabinet, who came to Washington State just 
this past week, are saying their original predictions on the economy 
aren't going to be as rosy as they predicted. The President's own 
economic report, in which they cite on page 98 a chart talking about 
growth and real GDP and productivity over the long term, basically said 
this year we were going to create 2.6 million jobs. That was a great 
forecast. Many of my colleagues on the other side of the aisle said 
that that is an indication that the economy is going to grow, and we 
don't need to do unemployment benefit extensions. People will find 
jobs.
  The three Cabinet secretaries--the Secretaries of Treasury, Commerce, 
and Labor--who visited Washington State must have thought the picture 
was so rosy that they didn't need to meet with unemployed workers who 
wanted to share their plight. And yet, when they were asked about the 
President's economic numbers and the President's economic plan, they 
all backed off of those numbers. They all said the economy is not going 
to grow at that fast a rate. Those were just numbers.
  If they are just numbers and you don't really believe that is the 
growth rate, then let's go back to the business we are charged with--
helping out in times of high unemployment with Federal assistance. This 
program is paid for by employers and employees. Let's put back on the 
table the 13 weeks of Federal assistance and, in high unemployment 
States, an additional 13 weeks in Federal assistance.
  Let's not make a mistake. There are hundreds of thousands--in fact 
760,000 people in America--who have exhausted all their state benefits 
and have no federal program to pick them up. And in addition to the 8.3 
million people officially counted as unemployed, there are another 1.7 
million who are actually no longer counted as in the ranks of the 
unemployed. If we count them, the national unemployment rate jumps from 
5.6 percent to 6.7 percent. These people are out of work just the same 
as those who are counted, but yet they are not in the numbers. Many are 
discouraged workers. Many have exhausted their benefits.
  Let's take a look at the economic policies of the past two 
administrations. Let's look at what the first Bush and the Clinton 
administration decided to do when this country faced an economic 
downturn in the early 1990s. They decided that we should create a 
federal program for unemployment benefits to help people until they 
could get back to work.
  I have numbers of e-mails and letters from constituents in my State 
and other parts of the country. These constituents say that they have 
sent resumes to hundreds of companies and maybe only had two or three 
interviews. When they go to those interviews, they are competing with 
people who are three and four times more qualified for the job. These 
overly qualified people are willing to take that job because it is the 
only job that is out there. Thereby those individuals who are 
themselves qualified but not overqualified are left without employment.
  Let's compare the number of jobs that were created in the last 
recovery and this one. The bottom line is that in 1992 we started to 
see a recovery in jobs. In April of that year the economy started to 
create about 150,000 jobs per month. But, even so, we kept the Federal 
program going for 22 more months. In February of 1993, we finally 
closed the jobs deficit, and yet, we continued the program until 2.9 
million new jobs had been created, above and beyond the jobs deficit.
  In the current recovery, we are simply not seeing that kind of 
growth. Last month, just 112,000 jobs were created. And yet, everybody 
is ready to say that 112,000 jobs signals our great return. We need to 
take a lesson from history: In the 1990s, when the economy started 
creating about 150,000 jobs, we continued the program for almost 2 more 
years. We certainly didn't cut it off as we did in December of 2003.
  In April of 1992, that administration was not heartless as to the 
plight of Americans being out of work. That administration recognized 
that even though the economy is starting to recover, it hadn't fully 
recovered. Under that Republican administration, they said let's go 
ahead and keep the Federal employment program going. So they extended 
it for another 22 months.
  In February 1993, when we basically had broke even for the jobs that 
had been lost, the Federal unemployment extension program was still 
extended another year.
  The past recession provided good economic evidence that extending 
unemployment benefits at the Federal level not only helped bridge the 
gap between the end of State benefits and finding a new job.
  It also provided economic stimulus. For every dollar spent on 
unemployment benefits, it generates $2 of stimulus to the economy. We 
found out in the 1990s that was a good economic plan, and two 
administrations, a Republican administration, the first George Bush, 
and a Democratic administration, Bill Clinton, found that this was 
great economic policy for our country.
  Yet today, the administration is simply being heartless. Somehow, 
even though the President has backpedaled on his own economic plan for 
the year and said he doesn't support the job growth projections--
somehow even though we have created only a minuscule number of jobs, 
112,000 in January, the administration doesn't want to continue this 
program.
  I find that amazing. What else I find amazing is that even though we 
have $17 billion in the UI trust fund--$17 billion that does not have 
to be found, that does not have to be taken from another program; $17 
billion that has been paid for by employers and employees, and is, in 
fact, designed to take care of employees during economic downturns--
we're not going to extend the program.
  As the program has been designed, it says these people can be 
eligible for Federal temporary assistance for 13 weeks and, if they are 
in a very high unemployment State, an additional 13 weeks. I want to 
point out that in the 1990s, not only did they extend that program for 
27 months, much longer than we did in the current program, the program 
was also a richer program. The program was richer in that you actually 
had twice as many weeks of benefits.
  So the current program has fewer weeks of benefits, and it hasn't 
been in place for as long--it only lasted 22 months.
  I think people across America are getting the message. I know they 
are in Washington State. They were so disappointed when the Cabinet 
Secretaries showed up in town and said they wanted to do something 
about the hard economic times, and yet refused to meet with laid-off 
workers. Then the Secretaries Snow and Evans refused to back the 
President's jobs projections. Laid-off workers in my state said: If you 
guys do not believe in the economic numbers, we can tell you firsthand 
we do not believe in them because we have been on job interview after 
job interview and have sent resumes and the jobs are just not there.
  As the Seattle P.I. wrote in an editorial, everything is not fine in 
the job market. They clearly point out that we have a responsibility, 
and the one thing to do to alleviate the pain is to extend Federal 
unemployment benefits. I ask unanimous consent to print that editorial 
in the Record.

                Everything Is Not Fine in the Job Market

       Helping unemployed workers is the one thing the Bush 
     administration could still do about the lousy jobs 
     environment.
       Three-fourths of the way through his term, President Bush 
     is pretending that everything is fine for workers. The 
     administration has shown no interest in extending federal 
     emergency unemployment assistance for workers whose benefits 
     are expiring.
       The country has lost 2.3 million jobs. The recovery is 
     pushing up CEOs' pay, ironically, in part because they are 
     helping stock prices by holding down hiring. And the layoffs 
     continue.

[[Page 2462]]

       Boeing said Friday it might cut 50 workers in Everett. The 
     sale of AT&T Wireless Services will spark thousands of 
     layoffs. Yesterday, Sen. Maria Cantwell, D-Wash., visited 
     workers and managers of a Seattle warehouse where the staff 
     was laid off and the building put up for sale.
       As Cantwell notes, there are far more unemployed workers 
     than new jobs. For good reason, the White House has 
     jettisoned its own prediction of 2.6 million new jobs this 
     year.
       The fury over outsourcing of jobs is much overstated, but 
     it is fed by the weak economy. The export of some jobs 
     underscores the need for helping unemployed workers through a 
     transitional time until more jobs are created. The one way to 
     alleviate the pain quickly is to extend federal unemployment 
     benefits.

  Ms. CANTWELL. Mr. President, the Minneapolis Star Tribune wrote:

       At this sluggish pace, it will take the nation four years 
     to recover the jobs it lost in nine months during the 
     recession of 2001.

  So there are people saying obviously it is going to take us a while 
to recover.
  The L.A. Times recently wrote:

       More than 2 million jobs have been lost in the last three 
     years. . . . Even in the best-case scenario, Bush will end 
     this term with a net job loss. That hasn't happened to a 
     president since Herbert Hoover at the beginning of the 
     Depression.

  Mr. President, I ask unanimous consent to have these articles printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

        [From the Star Tribune, Minneapolis, MN, Feb. 10, 2004]

                   Jobless; Benefits Are Running Out

       To a casual reader, the government employment report 
     released on Friday shows an economic recovery finally taking 
     hold. Payrolls expanded for the fifth consecutive month, and 
     the unemployment rate fell slightly to 5.6 percent.
       To Americans who are standing in the unemployment line, 
     however, the January data reveal a recovery that remains 
     woefully inadequate. If President Bush really cares about the 
     nation's unemployed, as he said Sunday, he will endorse 
     congressional efforts to enact a badly needed extension of 
     federal unemployment benefits.
       The January jobs report was encouraged in the context of 
     the current recovery, but it was pathetic in the context of 
     history. Since the labor market hit bottom last summer, 
     employers have been adding about 73,000 jobs per month. That 
     compares with 216,000 jobs per month during the economic 
     expansion of the early 1990s, and much larger monthly gains 
     in recoveries before that. At this sluggish pace, it will 
     take the nation four years to recover the jobs it lost in 
     nine months during the recession 2001. There is simply no 
     modern precedent for a jobless recovery of this duration.
       The slow pace of hiring is taking a terrible toll on those 
     in the unemployment line. Nearly one-fourth of the nation's 
     8.3 million jobless workers have now been out of work for six 
     months or longer. As of December, nearly 400,000 workers are 
     exhausting their unemployment benefits every month, according 
     to the Center on Budget and Policy Priorities in Washington, 
     D.C.
       (A different Labor Department measure, known as the 
     household survey, has been showing much stronger job creation 
     in recent months. But the department said Friday, as it has 
     for years, that it considers the household survey less 
     accurate than the payroll survey that is showing tepid 
     growth. And even by the household survey, the current 
     expansion is much slower than its predecessors.)
       Bush says that in light of the large budget deficit, he 
     wants to contain federal spending, and we sympathize. But the 
     modest cost of extending unemployment benefits would 
     disappear as soon as the job market truly recovers, unlike 
     the much larger tax cuts that the president continues to 
     propose.
       Lawmakers dragged their feet on this question all last 
     fall, arguing that a jobs recovery was just around the 
     corner. Last week a majority in the House finally recognized 
     its error and voted to extend benefits. The Senate and the 
     White House should concur.
                                  ____


              [From the Los Angeles Times, Dec. 29, 2003]

                      Jobless Count Skips Millions

                         (By David Streitfeld)

       San Francisco.--Lisa Gluskin has had a tough three years. 
     She works almost as hard as she did during the dot-com boom, 
     for about 20% of the income.
       When Gluskin's writing and editing business cratered in 
     2001, she slashed her rates, began studying for a graduate 
     degree and started teaching part time at a Lake Tahoe 
     community college for a meager wage.
       It's been a fragmented, hand-to-mouth life, one that she 
     sees mirrored by friends and colleagues who are waiting 
     tables or delivering packages. In the late `90s, the 35-year-
     old Gluskin says, ``we had careers. We had trajectories. Now 
     we have complicated lives. We're not unemployed, but we're 
     underemployed.''
       The nation's official jobless rate is 5.9%, a relatively 
     benign level by historical standards. But economists say that 
     figure paints only a partial--and artificially rosy--picture 
     of the labor market.
       To begin with, there are the 8.7 million unemployed, 
     defined as those without a job who are actively looking for 
     work. But lurking behind that group are 4.9 million part-time 
     workers such as Gluskin who say they would rather be working 
     full time--the highest number in a decade.
       There are also the 1.5 million people who want a job but 
     didn't look for one in the last month. Nearly a third of this 
     group say they stopped the search because they were too 
     depressed about the prospect of finding anything. Officially 
     termed ``discouraged,'' their number has surged 20% in a 
     year.
       Add these three groups together and the jobless total for 
     the U.S. hits 9.7%, up from 9.4% a year ago.
       No wonder the Democratic Presidential candidates have 
     seized on jobs as a potentially powerful weapon.
       Howard Dean criticized President Bush for ``the worst job 
     creation record in over 60 years.'' Richard Gephardt said 
     that ``I have three goals for my presidency: jobs, jobs, 
     jobs.'' John Kerry said ``the first thing'' he'd do as 
     president would be to fight his ``heart out'' to bring back 
     the jobs that have disappeared in recent years.
       Bush, meanwhile, is quick to seize credit where he can. 
     When the unemployment rate for November fell one-tenth of a 
     point, he went out immediately to give a speech at a Home 
     Depot in Maryland.
       ``More workers are going to work, over 380,000 have joined 
     the workforce in the last couple of months,'' Bush said. 
     ``We've overcome a lot.''
       A number of economists say it's a mistake to evaluate the 
     job market solely by talking about the official unemployment 
     rate. It's a blunt instrument for assessing a condition that 
     is growing ever more vague.
       ``There's certainly an arbitrariness to the official 
     rate,'' says Princeton University economics professor Alan 
     Krueger. ``It irks me that it's not put in proper 
     perspective.''
       On Jan. 9, when the rate for December is announced, both 
     Republicans and Democrats will assuredly again maneuver for 
     advantage--precisely because the number isn't expected to 
     change much.
       ``At this point, where we don't know which way it's going 
     but it isn't likely to be going far, both sides will try to 
     use it,'' says Michael Lewis-Beck, a political scientist at 
     the University of Iowa.
       In every election since 1960, the party in the White House 
     lost when the unemployment rate deteriorated during the first 
     half of the year. If the rate improved, the party in the 
     White House won.
       That's not a coincidence, says Lewis-Beck, who has edited 
     several volumes on how economic conditions determine 
     elections. ``People see the President as the chief executive 
     of the economy,'' he says. ``They punish him if things are 
     deteriorating and reward him if things are improving.''
       By any normal standard, things should have been improving 
     on the employment front long before this point. More than 2 
     million jobs have been lost in the last three years, a period 
     that encompassed a brief, nasty recession and a recovery that 
     was anemic until recently. Even in the best-case scenario, 
     Bush will end this term with a net job loss. That hasn't 
     happened to a president since Herbert Hoover at the beginning 
     of the Depression.
       Many economists are mystified about why a suddenly booming 
     economy is producing so few jobs.
       ``We're all sitting there and saying, `When are they going 
     to return?''' says Richard B. Freeman, director of the labor 
     studies program at the National Bureau of Economic Research. 
     ``It's looking a little better, but we don't understand why 
     it isn't looking a lot better. Why shouldn't Bush be sitting 
     there saying, `Man, I'm sitting pretty. This is a great 
     boom'?''
       One statistic proving particularly perplexing is the 
     percentage of the adult population that is employed. this 
     number rises during good times, as people are lured into the 
     workforce, and falls during recessions as companies falter.
       True to from, the percentage of adult Americans with jobs 
     dropped from a high of 64.8% in April 2000, just as the stock 
     market was cresting, to 62% in September--the lowest level in 
     a decade. If past recessions are any guide, those 5 million 
     people who found themselves jobless should have driven the 
     unemployment rate up to about 8%.
       Instead, the rate never went much above 6%
       More than half of the additional people who would have 
     reported themselves as unemployed in a previous big 
     recessionary period . . . aren't,'' a puzzled UC Berkely 
     economist, Brad DeLong, wrote on his website. ``They're 
     reporting themselves as out of the labor force instead.''
       ``Out of the labor force'' means you're not working for 
     even one hour a week and don't want to, either. It's the 
     traditional category for students, married women with young 
     children, flush retirees and idle millionaires.

[[Page 2463]]

       A new way that people seem to be joining this category is 
     by getting themselves declared disabled. This designation 
     makes them eligible for government payments while removing 
     them from the unemployment rolls.
       From 1983 to 2000, economists David Autor and Mark Duggan 
     wrote in a recent study, the number of non-elderly adults 
     receiving government disability payment doubled from 3.8 
     million to 7.7 million.
       The scholars present a case that the sharp increase isn't 
     because the workplace suddenly became more dangerous. 
     Instead, it has been prompted by liberalized screening 
     policies, which make it possible to claim disabled status 
     for, say, several small impairments as opposed to one big 
     injury. Government examinations also have been downplayed in 
     favor of the disabled's own medical records and the pain he 
     or she claims to be experiencing.
       At the same time, benefits have been sweetened. As a 
     result, millions of individuals who lost jobs now have an 
     attractive--and permanent--alternative to searching for work.
       Autor and Duggan concluded that if disability payments 
     weren't so appealing, many more people would be unemployed, 
     boosting the jobless rate two-thirds of a point.
       Another way in which people forgo an appearance on the 
     unemployment rolls is if they decide to go into business for 
     themselves. There are 9.6 million people who say they are 
     self-employed full time, a number that rose 118,000 last 
     month. Without the recent increase in self-employed, the 
     jobless number would look much worse.
       Many others may be working for themselves part time, 
     temporarily, as a way to get food on the table in the absence 
     of better options.
       Take Steve Fahringer, who until recently was working for a 
     Bay Area marketing agency that cut 20% of its employees and 
     trimmed the wages of the remainder by 20%. Fahringer didn't 
     particularly like his job. Because the recession supposedly 
     was history, he thought he could find a new position. The 34-
     year-old didn't think it would be easy, but he thought it 
     possible. So he quit.
       ``I left July 1,'' he says. ``I haven't found a new job 
     yet.''
       It's a common problem. The segment of the labor force that 
     has been jobless for more than 15 weeks has risen nearly 150% 
     since 2000. The current level is the highest since the 
     recession of the early 1990s. Nearly one-quarter of the 
     jobless have been unemployed for longer than six months.
       In Fahringer's case, he spent some time aggressively 
     looking for a job, which made him part of the official July 
     unemployment rate of 6.2%. Then he stopped looking, which 
     meant that he was one small reason the rate started going 
     down.
       Instead of unemployed, Fahringer was classified as 
     ``discouraged.'' A little more than 8% of the people who want 
     a job in the Bay Area are estimated by the Bureau of Labor 
     Statistics to be discouraged, slightly higher than Los 
     Angeles/Long Beach but lower than the battered technology 
     center of San Jose.
       Discouraged workers have never been included in 
     unemployment rates, although they came close the last time a 
     commission met to reform the system, a quarter of a century 
     ago. ``It was a very hot issue,'' remembers Glen Cain, a 
     retired economist who was a commission member. He says the 
     conservatives on the panel, who felt that anyone who really 
     wanted a job should be out there hustling no matter what, 
     prevailed.
       Fahringer found an alternative way to earn a bit of money. 
     He did some acrylic paintings, which he sold for a total of 
     $1,000. He calls himself ``a hobbyist,'' which means for a 
     while he moved out of the labor force entirely.
       Now he's a temp, assigned by his agency to a nonprofit 
     office. For the first time in six months, he's working 40 
     hours a week. By the government's accounting, he has once 
     again joined the ranks of the employed. But from the 
     standpoint of his wallet, Fahringer is worse off: He's 
     earning less money, with no paid holidays, no sick leave, no 
     pension plan, no health insurance, no future.
       The Economic Policy Institute, a liberal-leaning Washington 
     think tank, says Fahringer's situation is in many ways 
     typical. The industries that were expanding in the late '90s, 
     including computer and professional services, paid well.
       Those industries are in retreat. So is manufacturing, a 
     traditional source of high wages. On the rise, meanwhile, are 
     lower-paying service jobs.
       During the boom, it was easy to trade up. Now it's just as 
     easy to trade down.
       Fahringer's solution: Opt out.
       ``I'm thinking of going back to school,'' he says. ``I'd 
     take out a loan.'' That would put him out of the labor force 
     again.
       In some eyes, a nation of burger flippers, temps and Wal-
     Mart clerks isn't the worse scenario for the economy. The 
     worse is that companies continue to eliminate jobs faster 
     than they create them, setting up a game of musical chairs 
     for the labor force.
       That prospect alarms Erica Groshen, an economist with the 
     Federal Reserve Bank of New York. ``If you plot job losses 
     versus gains on a chart, it's shocking,'' she says.
       Losses are running at about the same rate they were in 1997 
     and 1998, two good years for the economy. But job creation in 
     the first quarter of 2003--the most recent period available--
     was only 7.4 million, the lowest since 1993.
       ``If this goes on too long, you'd have to worry there's 
     something fundamentally wrong,'' Groshen says. Although the 
     economy has picked up since March, ``so far I haven't seen 
     anything that suggests job creation is picking up.''
       That bodes poorly for Ian Golder. His last full-time job 
     was with a start-up publication that wrote about venture 
     capital.
       Two years ago, Golder was laid off. It was the first time 
     since he graduated from UC Berkeley 14 years earlier that he 
     didn't have steady work.
       Golder looked for a while, gave up for a while, then landed 
     a contracting gig with no benefits proofreading for a chip 
     maker. When that ran out, he worked 20 hours a month on a 
     financial services newsletter.
       His wife, Heather, a recent graduate in English from UC 
     Davis, also was without a job. They thought about selling 
     their house in Sacramento and moving, but prospects didn't 
     look any better anywhere else. To make ends meet, they took 
     in two boarders.
       At the beginning of December, things seemed to improve a 
     bit. Golder got a job in the document-control department of a 
     medical devices company. The department, he was told used to 
     have 20 full-time people. Now it has five, plus four temps.
       The job will last two months. After that, who knows?
       Optimists say things will be better then,'' Golder says. 
     ``But a full-time position with benefits seems pretty 
     remote.''

  Ms. CANTWELL. Mr. President, the point is, this administration and 
the other side of the aisle need to look at economic history when we 
have faced similar downturns and discuss what is the best way to 
alleviate this pain as we see our economy barely start to chug along.
  We have heard a lot about outsourcing in the last week or two. I am 
sure we have not heard the last of it. There are a lot of people who 
are concerned that we may never see that job growth that was even 
initially predicted in the President's economic report of which it has 
now backed off. So America has a very uncertain time ahead, but 
Americans know they have a program at the Federal level to which they 
are being denied access.
  What are the consequences? My colleagues need to read their e-mails. 
They need to read letters from their constituents. I read mine. When 
you know that money is there to help and assist them, when you know an 
economic plan and responsibility for our fiscal policy is something we 
should be concerned with every day, it just breaks your heart to 
understand the plight some of these people are going through.
  One laid-off worker from Camano Island said he cashed out every dime 
of his 401(k) savings plan with significant penalty. He doesn't know 
how he is going to make the mortgage payments, he is at such a 
desperate point. He is trying to figure out any way he can just to keep 
the lights on and keep food on the table.
  Another constituent wrote to me from Bothell, WA:

       I had to resort to selling my 20-year-old naval sword for 
     grocery money. As a naval veteran, I can tell you that hurt a 
     lot to do.

  A constituent from Steilacoom, WA, who has been unemployed and his 
wife worked at $17 an hour for a phone company and she was laid off, 
too, writes that they had to borrow from friends just to keep their 
kids in the house and make their house payment.
  Washingtonians are having a very hard time. I bet many Americans 
across this country are having a hard time. That is because we are not 
living up to our responsibility to pass this temporary unemployment 
benefit extension. We had this debate in December of 2003, and a lot of 
rankling about it, and we came back in January and ultimately did the 
right thing.
  In December of this year, when the program expired again, we came 
back and everybody wanted to sing how the economy was getting better. 
Now the administration will not stand by its own numbers of whether the 
economy is really getting better or not.
  The House of Representatives, albeit a difficult task, actually got 
an amendment on a different bill and actually passed an extension of 
unemployment benefits. They had the votes to, in a bipartisan way, pass 
the unemployment benefit extension, but we have not had the courage to 
do so.

[[Page 2464]]

  My colleagues on the other side of the aisle need to stand up and say 
that unemployment benefits are a priority and that they are a good way 
to deal with this economic situation, and that while we have curtailed 
this program at a much shorter time period when we have not had 
positive job growth--we are still in the negative numbers--this has 
been premature and that the smart thing to do now is, as the economy is 
barely starting to respond, the most prudent thing to do to stimulate 
the economy is not to take more money out of it. That is exactly what 
we are doing. We are taking more money out when we do not help provide 
the stimulus that unemployment benefits provide.
  So I think this is the best investment we could be making. My 
colleagues need to realize it is heartless to leave these Americans out 
in the cold without either a paycheck or an unemployment check.
  In the 1990s recession, even when there had been the start of job 
growth, the program was extended for 22 months. And even when we had 
recovered all the jobs that were lost and the economy had started to 
positive growth, this program was extended another year. So we are 
being very shortsighted. While we have lots of legislation to discuss, 
various issues about liability, we are saddling the American public 
with the biggest liability yet, and that is a bad economy and no help 
on unemployment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I have today asked my colleagues to 
support the Protection of Lawful Commerce in Arms Act. This important 
legislation has strong support from both sides of the aisle with more 
than 50 cosponsors on the original bill, S. 659. I am proud to be an 
original cosponsor of the bill. I thank my dear friend and colleague 
from Idaho, Senator Larry Craig, for his leadership. He has done 
yeoman's work on this bill in the drafting, introduction, and 
shepherding of this bill as it passes on the Senate floor.
  The legislation in question will correct a significant injustice that 
threatens the viability of a lawful United States industry, the 
firearms industry. An increasing number of lawsuits are being filed 
against the firearms industry seeking damages for wrongs committed by 
not them but by third persons who misuse the industry's products.
  These lawsuits seek to impose liability on lawful businesses for the 
actions of people the industry has absolutely no control over. When one 
stops to think about it, it is really outrageous. Businesses that 
comply with all applicable Federal and State laws and that produce a 
product fit for an intended lawful purpose, including elk and duck 
hunting, target shooting and personal protection, should not be subject 
to frivolous lawsuits that have only one goal; that is, to put them out 
of business. It is an outrage.
  Montanans particularly are proud of their independence and their 
outdoor heritage. We are an outdoor people. People in our State, as in 
the State of the occupant of the Chair, almost honor and cherish the 
outdoors. We spend so much of our time outdoors. Almost every Montanan 
regards himself or herself as an outdoorsperson. Hunting, fishing, 
hiking, even one's job, whether it is raising cattle, growing wheat, 
grain, the mining industry, forest products--we are outdoors people. We 
cherish our right to hunt. We cherish our right to fish and enjoy the 
outdoors. Passing this bill will allow us to protect that right by 
ensuring the firearms industry stays in business.
  Gun owners and sportsmen are an important part of our Nation's 
economy. Each year they spend nearly $21 billion in our national 
economy. This in turn generates more than 366,000 jobs. Those jobs pay 
more than $8.8 billion in wages and salaries. That is no small item, 
particularly these days when we are trying to get as many jobs in our 
country, particularly good-paying jobs. The industry also provides 
about $1.2 billion in State tax revenues.
  In addition, excise taxes imposed on firearms in the Federal Aid to 
Wildlife Restoration Act, otherwise known as the Pittman-Robertson Act, 
generate revenues for State fish and wildlife conservation efforts, and 
also hunter safety programs. For example, the Pittman-Robertson Act 
generated more than $150 million in revenue in the year 2002 alone.
  In short, the U.S. firearms industry serves America's gun owners and 
sportsmen well. It provides good-paying jobs. It provides revenues that 
benefit all Americans. The industry should not be penalized for legally 
producing or selling a product that functions as designed and intended, 
but that is exactly what certain groups are trying to do--asking the 
courts to step in and micromanage the firearms industry when the 
Congress and most State legislatures have refused to do so.
  Let me now list some of the demands that have been made in these 
lawsuits so we can get a flavor and a picture of just how incredible 
these lawsuits are. Some would require a one-gun-a-month purchase 
restriction not required by a State law. That is a one-gun-a-month 
restriction. Other of these suits would require firearm manufacturers 
and distributors to participate in a court-ordered study of lawful 
demand for firearms and, get this, cease sales in excess of lawful 
demand.
  Another request is to require a prohibition on sales to dealers who 
do not stock at least $250,000 in inventory. And here is still another: 
require systematic monitoring of dealers' practices by manufacturers 
and distributors.
  These are just a few of the sweeping demands made in the lawsuits the 
Protection of Lawful Commerce in Arms Act seeks to stop. As my 
colleagues can tell, these suits are asking courts to step well outside 
their jurisdiction and legislate regulation of the firearms industry. 
They also have nothing to do with holding accountable those who 
actually misuse firearms or commit crimes with firearms.
  Most courts have dismissed such lawsuits. Some courts have expressed 
sentiments similar to those of a New York appellate court judge who 
stated:

       The plain fact is that courts are the least suited, least 
     equipped and thus the least appropriate branch of government 
     to regulate and micromanage the manufacturing, marketing, 
     distribution and sale of handguns.

  However, the time, expense, and effort that goes into defending those 
nuisance suits is a significant drain on the firearms industry costing 
jobs and millions of dollars, increasing business and operating costs 
and threatening to put a good number of dealers and manufacturers out 
of business. That is why this bill is so necessary.
  Let me be clear about a couple of points, though. This bill will not 
bar legitimate suits against the firearms industry. It preserves the 
right of Americans to have their day in court. For example, this bill 
will not require dismissal of a lawsuit if a member of the industry 
breaks the law; if a member of the industry acts negligently in 
supplying a firearm to a person they should have known is likely to 
misuse that firearm. In addition, it does not require dismissal of a 
lawsuit if a member of the industry supplies a firearm to someone they 
had reason to know was barred by Federal law from owning a firearm or 
designed a defective firearm. So there are safeguards in this bill.
  This bill is only intended to protect law-abiding members of the 
firearm industry from nuisance suits that have no basis in current law, 
and again are only intended to regulate the industry, harass the 
industry, or put it out of business, none of which are appropriate 
purposes of a lawsuit. That is what this legislation is intended to 
deal with.
  We can all agree when a firearm is used in a criminal or careless 
manner that causes serious injury, such as the loss of life, this is a 
terrible tragedy. Those responsible for such tragedies should be held 
accountable, clearly, and held accountable to the fullest extent of the 
law in both civil and criminal actions.
  This includes the firearms industry, obviously, when or if one of its 
members breaks the law or gives a firearm to a criminal or other person 
they knew would use the firearm to hurt, kill, or threaten another 
person.

[[Page 2465]]

  The Protection of Lawful Commerce in Arms Act would do nothing to 
change this or shield the firearms industry from liability or criminal 
or other wrongdoing. At the same time, it is not fair and it is not 
right to hold lawful members of the industry, who produce a legal 
product, accountable for the independent actions of third parties who 
use a firearm in the manner the industry never intended.
  This is a very simple bill. It has a simple purpose. It is also 
critically important to a very vital industry and I ask my colleagues 
to give it their full support.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, again, I remind our colleagues that we are 
in a postcloture environment. What does that mean? It means we could 
actually debate the broad issue of the bill for upwards of 30 hours 
before we actually get to the bill, even though 75 of us have said 
let's move on, let's get to this legislation, debate it, offer 
amendments, and bring it to final passage.
  My colleague from Montana is leaving. I thank him for his statement 
of the work he has done in behalf of gun owners and manufacturers and 
law-abiding gun dealers. I thank him for being an original cosponsor 
and working with me to get S. 1805 to the floor.
  I thought what I might do for a few moments, while we are waiting for 
leadership on both sides of the aisle to see if we can't find an 
agreement on how to proceed to this legislation, is to deal with some 
finer points that are involved in the legislation. My guess is, over 
the course of this week and probably the next week, you are going to 
hear a great deal said about the bill--11 pages, a relatively small 
bill--and what it does or does not do.
  S. 1805 has basically two substantive provisions. First, section 3(a) 
states that:

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

  A qualified action may not be brought.
  Second, section 3(b) orders the immediate dismissal of a qualified 
civil liability action pending on the date of enactment of S. 1805. The 
key to S. 1805, therefore, is the definition of ``qualified civil 
liability action.'' That is what most of our colleagues, I hope, would 
focus on, even though the issue spirals around the use of a gun and 
that brings about substantial heated debate and political decisions.
  Key in S. 1805, again, is the definition of a civil liability action 
which is addressed in the definition section, then, in section 4(5). A 
qualified civil liability action is defined as a lawsuit:

       . . . brought by any person against a manufacturer or 
     seller of a qualified product, or a trade association, for 
     damages resulting from the criminal or unlawful misuse of a 
     qualified product by the person or a third party. . . .

  Subsection (5), the definition, then excludes five categories of 
lawsuits from coverage under S. 1805:
  First:

       (i) an action brought against a transferor convicted under 
     section 924(h) of title 18, United States Code, or a 
     comparable or identical State felony law, by a party directly 
     harmed by the conduct of which the transferee is so 
     convicted.

  In other words, we don't exempt that. We exclude these categories 
from that definition so you can still go to court, you can still gain 
redress from that.
  The second one is:

       (ii) an action brought against a seller for negligent 
     entrustment or negligence per se.

  Negligent entrustment is defined:

       . . . the supplying of a qualified product by a seller for 
     use by another person when the seller knows, or should know, 
     the person to whom the product supplied is likely to, or 
     does, use the product in a manner involving unreasonable risk 
     of physical injury to the person or others.

  In other words, if the seller knows that this is going to be used for 
criminal intent or for misuse, then of course that provision is exempt 
from the protection under 1806.
  Third:

       (iii) an action in which a manufacturer or seller of a 
     qualified product [knowingly and willfully] violated a State 
     or Federal statute applicable to the sale or marketing of the 
     product, and the violation was a proximate cause of the harm 
     for which the relief is sought. . . .

  Again, the courthouse door is open to that.

       (iv) an action for breach of contract or warranty in 
     connection with the purchase of the product.

  That is available.

       (v) an action for physical injuries or property damage 
     resulting directly from a defect in design or manufacture of 
     the product, when used as intended or in a manner that is 
     reasonably foreseeable.

  Those are really the key points here that we do not in any way 
exempt. What we are doing in S. 1805 is very simple. We are trying to 
reinforce centuries of legal precedent, based on individual 
responsibilities, not responsible for actions of third parties. In 
other words, once again the trial bar is trying to suggest that a 
criminal act is the responsibility of the person who manufactured the 
product that the criminal may use in that act. We have never allowed 
that to stand in our courts, and now we are trying to assure that a 
very small industry in this country can be protected from the kinds of 
frivolous lawsuits filed that are draining them of their very 
livelihood.
  Earlier this afternoon I talked about the hundreds of jobs that have 
been lost. Some scoffed and said, ``This is a jobs bill?''
  You bet it is a jobs bill. If you destroy that industry, thousands of 
high-paying jobs will be lost across the United States in an industry 
that is legal, that is law abiding, that one might argue is even 
enshrined in the Constitution under the second amendment. That is why 
we are here today.
  Is it important? You bet it is important. Is it a part of what our 
Senate ought to be debating? Absolutely.
  If we are able to do this, we establish extremely important precedent 
that other manufacturers of law-abiding products will look at, and 
should look at. Why should the trial bar be allowed to suggest that the 
maker of a Chevrolet, Ford, Dodge, or Toyota pickup used by a drunk 
driver that ended up killing someone be responsible for it? Because 
they manufactured it? Since when is this country going to exempt the 
actions of the individual and say, Oh, no, it really wasn't his fault; 
it was the fault of the vehicle. It was the fault of an inanimate 
object known as a gun.
  That is the issue today and it really is fundamental. You hear a 
great many arguments. One of them is that we are locking the courthouse 
door. No, all those principles I talked about are exempt and can be 
tried and can be argued before the courts. Even in S. 1805, somebody 
who by definition brings a junk lawsuit gets to argue the case before 
the judge. They get through the courthouse door. The judge then 
listens, applies the law, and makes a determination whether this is a 
legitimate case that should go forward or it was an illegitimate case.
  Will this bill affect several high profile cases such as the lawsuit 
against a gun dealer in Tacoma, WA, from whose store the DC snipers, 
John Muhammad and Lee Malvo, got their rifle? Does it exempt that 
dealer if he acted unlawfully? We don't know that yet. We know that 
BATF has investigated it and jerked his firearm license and the store 
is now closed. We are told that BATF has asked the Justice Department 
to file criminal charges against him.
  But we do know one thing. We do know that Lee Malvo has admitted to 
stealing the gun from that dealer. Therefore, there is a principle in 
tort law that says that a manufacturer is not liable if the product 
used, being his, was stolen before it was used. That we do know. And 
now we have an admission by the person who pulled the trigger that the 
Bushman rifle used in those tragic incidents here that kept this city 
rivetted for a tremendous amount of time and took numerous lives was a 
stolen weapon.
  Having said all of that, the case is yet to be investigated. The 
facts are yet to be truly known. Allegedly, guns

[[Page 2466]]

went missing. Allegedly, they were not reported.
  If all of that is true, then the owner of this particular gun shop in 
Tacoma, WA could well be liable and could well come under the criminal 
laws of today, and S. 1805 would do nothing about that and shouldn't do 
anything about that.
  Once again, as I have already said numerous times today--and I am 
sure I will repeat it over the course of a good number of days--this is 
a very narrow approach. It is an important one.
  Senator Daschle, the minority leader, and I joined in his amendment 
embodied in S. 1805 to ensure that we refine it even more to make it 
very clear exactly what and who might be exempt and for what reason. We 
think we have so effectively narrowed it that it has met the broad 
acceptance of our colleagues in the Senate.
  I hope the cloture vote today is reflective of some of that 
acceptance as we work and debate through this issue. I hope leadership 
on both sides can get us to an agreement so we might proceed and get on 
the bill and deal with some of the amendments at hand. I hope we can 
defeat them. I would like a clean bill. The administration would like a 
clean bill. There is ample time to debate other issues. There is ample 
time to debate extension of the assault ban. I strongly oppose that. 
That was legislation I called a political placebo at a time when 
everybody wanted to try to do something, even though they knew it was 
impossible to control the criminal element in this country unless you 
got tough on crime. So we passed that legislation.
  History shows the assault weapon ban did little to no good--except it 
did one thing. It kept law-abiding citizens from buying certain types 
of firearms even though our second amendment would suggest they have 
the right to own them.
  That is why I hope the assault weapon ban as it expires can be left 
to its expiration. I hope we can defeat that.
  The other issue, the gun show loophole: Is there a loophole in gun 
shows?
  Let me set the stage for that. I would like to compare a gun show and 
an auto show. If you are a licensed car dealer or a licensed 
manufacturer of automobiles--I don't know that you have to be licensed 
to manufacture automobiles--then you can put all kinds of auto shows 
together, and you can sell from those shows. You can demonstrate your 
product. You can sell all kinds of things with no prohibition. In 
Idaho, the only prohibition, if you sell more than five a year, is you 
have to get a license to be an auto dealer. What we say in gun shows is 
if you are a licensed gun dealer at a show, then you must comply with 
all laws during that show in the sale of a firearm. But if you are an 
individual who sells very few firearms but you might sell one to a 
friend or someone else on occasion, and you sell at a gun show, or you 
met a friend at a gun show and you tell him about a gun you have and 
the transaction occurs, you don't have to comply with a background 
check; You are not a licensed dealer.
  Someone would suggest that is a loophole. I don't see that as a 
loophole because outside of gun shows it is not considered one--only if 
it is inside.
  What this is all about is establishing a Federal regulation to 
control gun shows. This will be a new entity of Federal control over 
something that is clearly a free market process. Do we want Federal 
regulations over the control of auto shows? Do we want Federal 
regulations in control over new-clothing shows? No. That is the 
marketplace at work. But if there are Federal laws that control these 
different products and/or sale, then they comply. They comply inside 
the show or outside the show. That is standard today.
  What our colleagues are trying to do in suggesting there is a 
loophole, which I believe I have suggested by demonstration of facts 
does not exist, is to control the gun show, and to suggest if you are 
an individual and you make a sale at a gun show, you then must do 
background checks and all other due diligence you would not do if you 
were outside the gun show, speaking neighbor to neighbor, friend to 
friend, and were not viewed as a licensed dealer, or not a gun dealer 
in any way.
  That is the reality of what we are talking about. Those are some of 
the amendments we will have which we will be dealing with on the floor. 
I hope as we deal with those, we might deal with others such as 
concealed carry. We might look at the gun ban of Washington, DC, where 
law-abiding citizens cannot legitimately own firearms, and a variety of 
other issues.
  The President asked--and I would like to honor that because I believe 
strongly in it, too--that we produce a clean bill just exactly like the 
House did on a better than 2-to-1 margin--285 to 140--that we produce a 
clean bill and get it to the President's desk; wipe out these frivolous 
lawsuits but still allow law-abiding citizens who might be injured by 
illegal action of a gun dealer or illegal action of a gun manufacturer 
their day in court without the kind of frivolous and/or junk lawsuits--
the kind that are costing the industry millions upon millions of 
dollars right now and slowly but surely diminishing them.
  Lastly, if we are not successful and if the trial bar is at some day 
and at some point successful, my guess is this relatively small 
industry in our country will not be here. What happens when we no 
longer produce high-quality firearms in this country for our military 
or for our police? Do we rely on China or Yugoslavia or Hungary or some 
other foreign country to produce the firearms our men and women in Iraq 
use to defend themselves and to enforce the law? Do we put them at 
risk? Do we say to our good law enforcement officers, You are going to 
have a foreign firearm on your hip and it will not be produced by a 
legitimate company in this country as a part of our national protection 
and our freedoms and rights?
  That is ultimately what could happen because already we have seen 
these industries go out of business because of the risk of doing 
business and the liability involved based on these types of lawsuits we 
are now trying to shape and limit. That is the essence of S. 1805.
  I hope we can soon move to the bill and begin debating it in its 
entirety, and certainly any amendments that would then come forward, 
debate those, get an up-or-down vote and move toward final passage.
  With that, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REED. I ask unanimous consent the call of the quorum be 
rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Mr. President, this legislation before the Senate has been 
described as necessary for the gun industry. It is nothing at all like 
that. There is no crisis with respect to lawsuits aimed against the gun 
industry.
  This legislation, though, poses a very serious risk to the rights of 
an individual citizen who is a victim of gun violence to go to a court 
of law in the United States and to simply ask on the facts whether the 
conduct of the individual gun dealer and the manufacturer represents 
the standard of care that is expected of every individual and 
corporation in this country. That is very simply what we think is 
inherent in our rights as citizens. This law will strike at those 
rights on behalf of a powerful and influential industry, in this case 
the gun industry.
  There has been some suggestion we are trying to protect the courts 
from third party lawsuits when, in fact, the reality is these actions 
are based on the actions of the manufacturers and the dealers, not the 
actions of someone with a gun. This is based upon the standard of care 
of the manufacturer and the dealer, not what an individual may or may 
not have done with a firearm. These are not third party lawsuits. These 
are lawsuits brought by victims, Americans who have suffered themselves 
personally or suffered through the death or injury of their family 
members. They are going to court and they are simply saying these 
manufacturers or these gun dealers have violated their duty to be 
reasonable, their duty to be prudent, the duty

[[Page 2467]]

of every individual who lives in an organized society to behave in a 
way that does not unnecessarily bring harm to others. That is the 
essence of our law.
  This legislation turns all of that on its head and says for a very 
special class, the gun lobby, the rules of the game do not apply. And 
if there is a citizen who seeks redress, then do not go to the courts 
of the United States.
  They tried to make the point that this does not close the door on the 
courthouses of America. No, this bill goes much further. It takes 
individuals who already have cases in courts and throws them out the 
door. Page 5 of the bill:

       DISMISSAL OF PENDING ACTIONS.--a qualified civil liability 
     action that is pending on the date of enactment of this Act 
     shall be immediately dismissed by the court in which the 
     action was brought.

  Not shall be considered in light of this legislation and the judge 
may make a determination that the suit can go forward, immediately 
dismissed.
  That is not just shutting the court door; that is evicting the 
plaintiffs from the court, through the door. That is just one aspect of 
the legislation.
  There is a discussion, too, about exemptions, talk about knowing that 
if a gun dealer or manufacturer knowingly does something, of course, 
they might be liable. That is a criminal element because in our 
criminal law we do not choose to punish people who unwittingly or 
unknowingly do something. There has to be, in most cases, some intent, 
some knowledge. Otherwise, the criminal law is absolutely arbitrary. It 
captures people simply for making a mistake. That is the criminal side.
  What we are talking about here is civil jurisprudence, the ability of 
an individual to go to court to get damages for harm against that 
person. That is not a criminal case; that is a civil case. That is not 
enforcing the criminal laws of the Nation which rest upon knowledge and 
intent; that is seeking redress based upon the standard of conduct, the 
obligation to care, to exercise an appropriate degree of care.
  The opponents of this bill are bringing those two issues together, 
confusing and mixing them up. But there is no confusion about this 
bill. It takes away the civil rights of an individual to go to court 
and a judge and jury to decide whether the individual, the defendant, 
has harmed them through negligence, through their inability to actually 
conform to a recognized standard of care. It is an extraordinary 
assault on basic legal rights.
  I find it amazing that at this time when there are so many problems 
facing this country, we are looking at legislation that is not just so 
overwhelmingly slanted to a particular special interest but one that 
disregards these basic rights that we all take for granted.
  There is also a suggestion in this legislation that there is a crisis 
because of these suits that are driving the gun manufacturers out of 
business. That is not what the gun manufacturers are telling their 
shareholders. That is not what they are telling the Securities and 
Exchange Commission under the penalty of perjury. This is an excerpt 
from the April 30, 2001, report of Smith & Wesson:

       In the opinion of management, after consultation with 
     special counsel, it is not probable and it is unlikely that 
     the outcome of these claims will have a material adverse 
     effect on the result of operations or the financial condition 
     of the company as management believes it has provided 
     adequate reserve.

  Under the penalty of perjury, the industry is telling the SEC and the 
shareholders, do not worry; these are not material claims. This is 
nothing that is going to put us out of business. This is nothing that 
is going to bankrupt us. Buy our stock. We are a good deal.
  But here people seem to be suggesting that they are on the verge of 
collapse because these lawsuits are creating so much liability for the 
companies that they cannot bear it. I tend to believe their own 
statements in their SEC filings. As a result, this is not a crisis with 
respect to the gun industry in the United States. This is an industry 
that is extremely well-heeled and very zealous in protecting their own 
rights and interests.
  In 1999, the National Shooting Sports Foundation, an industry group, 
and others created the Hunting and Shooting Sports Heritage Fund. By 
all accounts, this fund has raised as much as $100 million. They are 
engaged in lobbying activities. They are engaged in promoting this 
legislation. They are also engaged in ensuring that their internal 
documents are protected from discovery by lodging them in a California 
attorney's office. They are guarding, in a secretive way, their 
activities. This is not the case of a poor victim of a sniper or an 
aberrant gunman who does not have $100 million, who does not have a 
large organization. They have one thing: Their right to go into court, 
as every American citizen can do, and make a simple claim. If they have 
been negligent, I have been harmed, they must compensate me for my 
damages. This bill strikes that. It tears it out of our law.
  Now, this is a situation where there is no financial threat of a 
great magnitude to the industry. In fact, some of these suits do not 
even talk about monetary damages. They are asking for injunctive 
relief. I think it is interesting that in the other body they struck 
out the ability to get even injunctive relief to change the practices 
of these companies. So this is not about a financial crisis. This is 
simply about providing remarkable, unprecedented protections for one 
industry at the expense of the average person on the street.
  Again, the suggestion that this is a situation that is required 
because we have to protect the whole industry from these suits that 
paint everyone the same way disregards the nature of our tort laws. You 
have to allege specific facts against a specific individual or 
personality or corporation--their actions. This is based upon their 
conduct, not some type of blanket attack on the gun industry.
  But if this law passes, we will limit the rights of American 
citizens. We will disrupt and overturn our system of tort law, which 
rests upon State action as well as Federal action. This will preempt 
causes of action that are entirely recognized and permissible in many 
State courts throughout the country. We will be disregarding the 
States, their legal systems, their knowledge of local conditions. That 
is another casualty of this legislation if it passes.
  But this, ultimately, is not just about the niceties of tort law and 
federalism and the financial impact on industries. This is about real 
people.
  I had occasion to meet one of these individuals when I met Denise 
Johnson. Denise was the wife of the late Conrad Johnson. Conrad was a 
busdriver and was the final victim of the Washington area snipers. The 
snipers' Bushmaster assault rifle was one of more than 230 weapons that 
disappeared from Bull's Eye Shooter Supply gun store in Washington 
State.
  Now, at a minimum, the gun store's very careless oversight of 
firearms raises obvious questions of negligence and deserves to be 
explored by the civil courts. The actions which the gun manufacturer 
took in placing those weapons in the hands of Bulls Eye also are 
appropriate for scrutiny in the courts. Yet Mrs. Johnson's case would 
be thrown out by S. 1805.
  Now, consider also the case of David Lemongello and Ken McGuire. 
These are two young police officers from New Jersey, the city of 
Orange. On January 12, 2001, they responded to a call, as police 
officers do every day throughout our country. Every day they risk their 
lives. What they encountered in a backyard was a gunman armed with a 
weapon. They were both grievously wounded.
  It turns out that this individual went into a store in West Virginia 
with a straw purchaser--a woman without a criminal record--who 
purchased 12 guns at one time--he was a felon--and then took those guns 
and went off and became involved in these crimes, became involved in 
the disposition of these weapons.
  This individual seller in West Virginia failed to follow the 
guidelines that even the trade association, the National Shooting 
Sports Foundation, has. So here is the seller, who is not at all averse 
to selling 12 firearms, in cash, to an individual, who walks in, who 
refuses to buy them himself but

[[Page 2468]]

has a younger person, a woman in this case, make the purchase in name 
because of background checks, who disregards the guidelines of the 
industry, and yet this legislation would say that those two police 
officers, who suffered grievously, cannot seek to be compensated by 
that dealer. It defies common sense as well as our legal tradition.
  Now, the manufacturer of those guns, Sturm, Ruger is a member of the 
Shooting Sports Federation. I would assume they take great pride in 
their advertisements and say: Look at the guidelines we have. Our sales 
people have to be reasonable. They have to exercise great scrutiny, 
good judgment, et cetera. Well, they do not really require that these 
guidelines be followed, even though their organization promulgated 
them.
  Now, this case is in the courts of West Virginia. Judge Irene Berger 
of Kanawha County, WV, looked at the case, looked at the law of West 
Virginia, looked at the specific allegations against the dealers, and 
said this case should go forward, there are no grounds for summary 
dismissal. Yet this legislation, if passed, would summarily dismiss 
that case. It would fall, I think, squarely under section 3(b):

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

  Judge Berger will not have a chance to evaluate whether this 
legislation and the exemptions comply, not in any real sense, because 
the presumption, of course, is that all these suits would be barred. 
There are exceptions which she may consider, but, again, those 
exceptions are so narrowly constructed that they provide little relief, 
no practical relief.
  Now, there is not just one case. There are multiple cases but not the 
thousands that the industry would lead you to believe they would be 
overwhelmed by--but a few cases, inconsequential in monetary effect for 
the industry, as they stated, but of immense consequences to the 
individual who has suffered financially, emotionally, personally, and 
to that individual's family.
  This is another case. This is Guzman v. Kahr Arms, in Worcester, MA. 
Twenty-six-year-old Danny Guzman was fatally wounded with a 9 mm gun. 
It was stolen from the gun manufacturer's plant by a drug addicted 
employee who had a criminal record.
  Stop and ask yourself: Does a gun manufacturer have a responsibility 
to the community to ensure that its employees who have access to 
firearms are not former felons or somehow at odds with the law or who 
is not currently addicted to drugs? Isn't that the expectation that 
everyone in that community and every community around the country has? 
Well, of course.
  Any sensible employer would ensure that an employee who has access to 
firearms would have some type of check to ensure they are not drug 
addicts or former felons.
  They would be amazed if this legislation passed because, frankly, 
what we are telling the Kahr Arms company is, no, hire anybody you want 
because you will have no civil liability, none whatsoever.
  Now, this company had rudimentary and ineffective controls for these 
weapons. They had no metal detectors, security mirrors, none of these 
things. Is that something the citizens of Worcester, the citizens of 
Massachusetts, the citizens of America want?
  That is common sense. These companies have to protect these weapons. 
They have an arsenal. They manufacture weapons.
  Apparently, that was not the case. It turns out the guns were taken 
from the factory by felons they hired without conducting background 
checks.
  The gun used to kill Danny Guzman was one of several stolen by Kahr 
Arms employees. This is not just one bad actor. And maybe that is the 
defense: We are really pretty good. We just made one mistake. And they 
were stolen before the serial numbers were etched into the weapons. 
They could not be traced. What kind of company is this?
  But what we are telling them, if we pass this legislation, is go 
ahead, it is fine, no liability for that, do that every day, just one 
of those things.
  These guns were taken and resold to criminals in exchange for money 
and drugs. Again, common sense suggests there has to be a civil right 
to go in and challenge the negligence of this company. The loaded gun 
that killed Mr. Guzman was found by a 4-year-old behind an apartment 
building near the scene of the shooting, so the gun was apparently 
tossed away and a 4-year-old found it. Mercifully, the child was not 
injured.
  This company could have done a score of things to prevent the death 
of Danny Guzman: Screen their employees for felony convictions, screen 
their employees for drugs, install safety cameras. What we are telling 
them, if we pass this legislation, is you don't have to do any of those 
things, because you can do anything you want and you will never be 
liable in a court of law in the United States.
  Will we tell that to the automobile manufacturers? Will we tell that 
to other industries? Absolutely not. It defies and insults common 
sense. But we are trying to do that today.
  There is another suggestion that you are trying to punish a whole 
industry because of a few bad apples. Like any industry, there are some 
scrupulous dealers, and we hope it is the majority. In fact, it does 
turn out to be the majority. But according to Federal data, 1.2 percent 
of gun dealers account for 57 percent of all guns recovered in criminal 
investigations. So obviously we have a problem with a small group of 
dealers.
  What are we telling those dealers today if we pass the legislation? 
Don't worry; you can't be sued. Even if you represent the worst 
possible dealers in the industry, even if you don't barely measure up 
to the standards of every other dealer, you are OK, because the rules 
of negligence don't apply.
  This is something that confounds common sense--forget the niceties of 
corporate law, of consumer protection law, of the tort system.
  Most people believe that if you are in the business of manufacturing 
and selling weapons, you have a very high standard of care, higher 
perhaps than other industries, because you are dealing with a weapon 
that has the potential to kill people, much more obviously and 
explicitly than perhaps any other product manufactured.
  What are we telling the industry? Forget that high standard of care. 
Not only can you have a low standard of care, you can have no standard 
of care, because you can do the most outrageous things in the world and 
no one can sue you. There might be some criminal liability, but then 
again, there might not. But the people you have harmed through your 
negligence will remain harmed and uncompensated. Don't worry.
  Most industries, manufacturers, are governed by the Consumer Product 
Safety Commission, which regulates the safety of nearly 15,000 consumer 
products used in and around the home. Guns are not regulated by the 
Consumer Product Safety Commission because when it was created in 1972, 
the gun lobby pressured Congress to specifically exempt guns and 
ammunition from its jurisdiction. So there is no regulation by the 
Consumer Product Safety Commission.
  Now there is no civil liability. Whatever standard of care exists in 
this industry is going to further deteriorate. We are causing problems; 
we are not solving problems with this legislation.
  There is another aspect, too. It is not just the criminal on the 
street who comes into control of a handgun, be it through the poor 
inventory controls of a Bull's Eye Shooters Company or through the lack 
of any apparent security procedures of the Kahr Arms Company. There 
were 9,485 people killed and another 127,000 wounded in unintentional 
shootings between 1993 and 2001. In about an 8-year period, 127,000 
people were unintentionally wounded by weapons; the firearm was 
defective or the design was inappropriate and it contributed to their 
injury. Don't we want to at least ensure in the design of weapons that 
there is a higher standard of care?
  For example, there is a case in California of a 15-year-old who was 
unintentionally shot and killed by a 14-

[[Page 2469]]

year-old friend with a defectively designed gun--Kenzo Dix. His friend 
Michael thought he had unloaded his father's gun. He replaced it with 
an unloaded magazine, he thought. But he failed to realize that in the 
chamber of the weapon there was still one round, and when he fired the 
gun, it resulted in the death of his playmate.
  Sadly, we read these stories too often. We read these stories about 
the individual who has a gun at home and the kids find it. The kids 
don't realize it is loaded, and death or injury results.
  Now Beretta, the manufacturer, could have easily designed the gun to 
have some type of indication whether there was a round in the chamber. 
They could have had some type of active device to prevent firing. None 
of that was done, and, frankly, if we pass this legislation, it will 
never be done because they don't have to worry about a parent coming 
and saying: If you had made these changes to that weapon, my son would 
be alive.
  They don't have anything to worry about. We have to worry about it. 
If you are a parent and you have a firearm in your home, you have to 
worry about it especially. That is not right.
  Again, this is not about sophisticated theories of liability, 
sophisticated theories of the history of tort law. It is about common 
sense, common decency, and common obligation. This bill violates all of 
them.
  There are lots of experts about firearms, but there is one group that 
I think probably is more expert than others. That is the law 
enforcement community. Where do they stand on this legislation? More 
than 80 police chiefs, sheriffs, and State and national law enforcement 
organizations wrote to all of us on February 11 to express their 
opposition to this effort to strip away these legal rights. These are 
officers from Maine to Texas to Washington State to Virginia to my home 
State of Rhode Island, chiefs, rank-and-file police men and women.
  I ask unanimous consent that a copy of this letter be printed in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. REED. These law enforcement officers know a bit more about crime 
than we do. It is their job. They do it very well. They know about the 
damage to communities when guns fall into the hands of those who misuse 
them. They see it up close and personal.
  Earlier this year, we were in a situation where previous to this bill 
there was an effort to destroy gun records, another effort launched on 
behalf of the gun lobby. These records are maintained for a few days, 
but they wanted to eliminate these records within 24 hours. Los Angeles 
Chief of Police William Bratton said: I just can't understand how 
Members of Congress can even consider this. Obviously, they haven't 
shown up to the scene of enough officer shootings.
  This legislation is in a similar vein. It is not about destroying 
records of gun purchases. It is destroying the right of an individual 
to say: I have been harmed. I need redress.
  Again, if you talk to the law enforcement community, they are opposed 
to this legislation. It is a free ride for the dealers, for the 
manufacturers, and for others.
  In this discussion, we have heard a great deal about Bull's Eye 
Shooters Supply. There is some suggestion that we fixed that problem. 
They have closed it and everyone is being punished.
  Here are the facts: Bull's Eye Shooters Supply is still open for 
business. The alcohol, tobacco, and firearms agency revoked the license 
of Bull's Eye prior owner, Mr. Brian Borgelt. Mr. Borgelt's friend, 
Kris Kindschuh, then took over operation of the store.
  Mr. Borgelt is appealing his license revocation to the Federal 
district court, and that case is pending. Let me stop for a moment. 
This is an individual who allegedly was so negligent that he could not 
account for 238 weapons, a litany of problems in terms of following the 
law. His license is being revoked, but he has a right--and he should 
have the right--to go into court and say this revocation is not based 
upon the law or the facts.
  The irony here, of course, is we are telling victims--perhaps his 
victims--that they do not have a right to go into court to seek 
redress. This, again, not only is unfortunate, it just defies a rough 
sense of justice and fairness.
  I think Mr. Borgelt should have every opportunity to appeal this 
revocation to prevent an arbitration action by the Government, but 
don't the victims of gun violence have a right to claim they have lost 
a great deal and they need redress in the courts? We will protect his 
rights, as we should, but we are undermining the rights of so many 
others.
  As far as we know, the ATF, the Department of Justice have not filed 
any criminal charges against Borgelt. So the idea that this situation 
has been resolved, that this is fine, justice has been done, frankly, 
is not the case at all.
  Indeed, what I am told is Mr. Borgelt runs the shooting range 
upstairs above Bull's Eye Shooter Supply. The shooting range is not 
regulated. So for all intents and purposes, particularly if you are a 
victim of the sniper shootings in Washington, DC, it does not look as 
if much has changed out there at Bull's Eye Shooter Supply.
  If the ATF had recommended to the Department of Justice that they 
file charges, it has been almost a year. I would hope the Department of 
Justice, in a case such as this, could move more promptly. But we have 
a situation, frankly, that even if the Justice Department acted, it 
still would not compensate and make whole the victims of this series of 
crimes in Washington.
  Let me focus for a minute on some of the facts we know about Bull's 
Eye Shooter Supply because one of the key issues here is whether or not 
the Washington sniper victims will be able to go into court if this 
legislation passes.
  Here are some of the things that have been established so far about 
this dealer in Washington State.
  There are a large number of missing guns. Bull's Eye could not 
account for 238 guns that were missing from its inventory when the 
Bureau of Alcohol, Tobacco, Firearms and Explosives inspected the gun 
dealer in 2000 and 2002. Bull's Eye's missing gun rate was greater than 
at least 99.73 percent of all Federal firearms licensees.
  There was no accounting for 238 weapons. A large number of guns from 
Bull's Eye appeared in crimes. Between 1997 and 2001, Bulls' Eye guns 
were involved in at least 52 crimes, including homicides, kidnappings, 
and assaults, placing Bull's Eye in the top 1 percent of all dealers 
nationwide in the supply of guns used in crimes. This appears to be a 
pretty good source of weapons for crime.
  In addition, the time-to-crime ratio was less than 3 years for more 
than 70 percent of Bull's Eye guns that were used in crimes from 1997 
to 2001. Quick time-to-crime--the time the gun leaves the store and 
shows up at a crime--suggests this store may be a highway for guns into 
the criminal system. And they have a high rate.
  There were a large number of multiple firearm sales. Between 1997 and 
2000, Bull's Eye sold 663 guns to 265 individual buyers, as many as 10 
guns at a time. This is not the record of a scrupulous, sincere dealer 
who is looking to enforce the standards of the industry.
  Then, of course, there were numerous ATF citations. ATF cited Bull's 
Eye for violations at least 15 times between 1997 and 2001 and, 
following the sniper attacks, revoked the license of Bull's Eye's 
former owner.
  Bull's Eye was cited 15 times between 1997 and 2001. That is not an 
inspiring record of scrupulous enforcement of the laws of the country.
  Yet what we are saying in this legislation is: Go ahead, you are 
fine; you might have your license revoked, but then you are upstairs in 
the shooting gallery. Or you might not. Maybe the Government will make 
an error. Maybe procedurally they have done something inappropriate, 
but certainly you are not going to be able to face justice in the sense 
of facing the victims of this negligence.
  There is something else this record says. It begs the question, What 
about the manufacturer? Why did Bushmaster Firearms, the manufacturer 
of

[[Page 2470]]

the sniper weapon used by the Washington area snipers, tolerate this? 
Don't they have an obligation to ensure that the dealers they entrust 
with their weapons are not violating ATF regulations--cited 15 times--
that they are not selling multiple guns to individuals, sometimes 10 at 
a time? Apparently not. After this legislation passes, they won't have 
to worry at all.
  Many people ask, Why would a manufacturer be involved in this issue? 
Why should we be able to sue a manufacturer? If a manufacturer, such as 
Bushmaster, not only keeps supplying weapons to dealers such as this, 
but then turns a blind eye to all this evidence, it suggests to me they 
are not conforming to a reasonable standard of commercial conduct. You 
would not exempt an automobile manufacturer from potential liability if 
it was shown that they repeatedly sold cars to dealers that violated 
ATF--it would not be ATF regulations, but consistently violated 
regulations, that persistently allowed underage sales, for example, 
even though you could make the argument that as long as the 15-year-old 
does not drive the car, it is a legal sale. But I think they would be 
suspicious at least to what was happening.
  As a result, there is not only a strong case but there is a necessary 
case that manufacturers have to be subject to a standard of care also. 
This legislation would strip that away.
  My colleague from Idaho and my colleagues on this side who support 
this bill say: Listen, this is narrowly crafted; this is not going to 
throw any suits out of the courts. You cannot have it both ways. You 
cannot be claiming, on one hand, that we are protecting this industry 
from lawsuit and then, on the other hand, say everyone can still go to 
court after this legislation because they all qualify for the 
exemptions. It is nonsense. These exemptions have been made so they do 
not exempt very much, if anything at all.
  There is an analysis--and I made reference to it in my discussion 
surrounding Bull's Eye Shooter Supply--by the law firm of Boies, 
Schiller & Flexner. I ask unanimous consent that at the conclusion of 
my remarks this analysis be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. REED. Mr. President, this law firm analyzed the legislation, and 
their conclusion is, particularly with regard to the Washington area 
snipers, that their cases will be thrown out.
  There are two sections of the law which provide an exemption from the 
categorical dismissal of these cases. They are section (5)(A)(ii) and 
(5)(A)(iii). Mr. President, (5)(A)(ii) says:

       . . . actions against a seller for ``negligent 
     entrustment'' or ``negligence per se''. . . .

  And (5)(A)(iii) says:

       . . . actions against a manufacturer or seller who violated 
     a statute in the sale or marketing of a firearm or 
     ammunition, where that statutory violation was a proximate 
     cause of the plaintiff's injuries. . . .

  Their analysis concludes that neither of these exemptions would apply 
in the case of the Washington area snipers. Those cases are already 
pending. They will be dismissed, thrown out.
  It is interesting because we continue to talk about, well, these 
exemptions will take care of all these cases, but it turns out that 
they will not, that the various nuances, the wording, the knowing 
violation of a statute, for example, the arcane cases of negligence 
entrustment and negligence per se, which are constructs that only a 
lawyer could fully appreciate and enjoy, all of this is craftily 
designed to prevent people from going to court, not to give them a fair 
right in court.
  Again, it goes down not to these nuances, to this legal terminology 
but simple common sense. How can one stand up and say this legislation 
is designed to protect and insulate injury from the wanton acts of 
these third party criminals and then also say but, by the way, all of 
these cases will still go through?
  I suspect there are things we could do right now to help these cases 
go through. ``Dismissal of pending actions'' could be struck. Clearly, 
that would suggest that the sniper cases would be in order because this 
legislation is not retroactive.
  The thrust is not to give people rights; it is to take them away. It 
is to protect this one industry at the expense of individual Americans. 
The legislation is unusually preferential to a small interest group. It 
defies my understanding of why we would try to protect this industry, 
which is not financially at risk by their own admissions, at the 
expense of individual Americans who have been harmed.
  I conclude by saying I never met Conrad Johnson, but like all of us 
in this Chamber, I woke up one morning and read about a bus driver 
reading his paper, waiting to go to work. I, frankly, thought of my 
father, who was a school custodian who got up in the morning, read the 
paper, getting ready to go to work.
  He was shot reading that paper, killed. He left a wife and small 
children. That wife and that family have gone to court to say: Where is 
our justice? Maybe somebody will be convicted for doing something 
wrong, but how are we going to live for the next 40 or 50 years? People 
have been negligent--at least we think they have. There is a Bull's Eye 
Shooters store that lost 238 weapons and was cited 15 times by the ATF. 
They are not going to have a day in court to answer to Mrs. Johnson? I 
cannot understand this legislation.
  I yield the floor.

                               Exhibit 1

                                                February 11, 2004.
       Dear Senator: As active and retired law enforcement 
     officers, we are writing to urge your strong opposition to S. 
     659, the so-called ``Protection of Lawful Commerce in Arms 
     Act.'' This bill would strip away the legal rights of gun 
     violence victims, including law enforcement officers and 
     their families, to seek redress against irresponsible gun 
     dealers and manufacturers.
       The impact of this bill on the law enforcement community is 
     well illustrated by the lawsuit brought by former Orange, New 
     Jersey police officers Ken McGuire and David Lemongello. On 
     January 12, 2001, officers McGuire and Lemongello were 
     seriously wounded in a shoot-out with a burglary suspect. The 
     Ruger pistol used by the suspect was one of twelve guns sold 
     by a West Virginia pawnshop, Will's Jewelry and Loan, to a 
     ``straw purchaser'' for a gun trafficker. The all-cash sale, 
     for thousands of dollars, was so obviously suspicious that 
     Will's reported it to the Bureau of Alcohol, Tobacco and 
     Firearms, but only after the sale was consummated. The 
     pawnshop had every reason to believe that, as soon as the 
     guns left its premises, they would be sold into the 
     underground market, destined to threaten the lives of police 
     officers and ordinary citizens.
       Officers McGuire and Lemongello are pursuing legal action 
     against Will's for negligent sales practices and against the 
     gun's manufacturer, Sturm, Ruger, for distributing guns 
     without requiring its dealers to adhere to a code of 
     responsible business practices that would prevent such 
     obvious sales to gun traffickers. A West Virginia judge 
     recently ruled that the officers' suit against Will's and 
     Sturm, Ruger is well-grounded in West Virginia law and should 
     be heard by a jury. If passed into law, S. 659 would override 
     this decision and deprive these brave officers of their day 
     in court.
       Police officers like Ken McGuire and David Lemongello put 
     their lives on the line every day to protect the public. 
     Instead of honoring them for their service, S. 659 would 
     deprive them of their basic rights as American citizens to 
     prove their case in a court of law. We stand with officers 
     McGuire and Lemongello in urging you to oppose this bill.
                                  ____


                               Exhibit 2


                                Boies, Schiller & Flexner LLP,

                                    Armonk, NY, February 17, 2004.
     Re opinion letter concerning proposed immunity legislation 
         for gun dealers and manufacturers.

     Michael Barnes,
     President, The Brady Center to Prevent Gun Violence, 
         Washington, DC.
       Dear Mr. Barnes: At your request, this letter addresses the 
     legal implications of the proposed gun dealer and 
     manufacturer immunity legislation, focusing specifically on 
     the impact of the legislation on the pending civil lawsuit 
     brought by the victims of the Washington, DC area sniper 
     attacks in the fall of 2002. For the reasons discussed below, 
     it is our judgment that the passage of S. 1805--the current 
     version of the immunity bill, which incorporates the so-
     called ``Daschle Amendments''--would require the immediate 
     dismissal of the sniper victims' claims against the parties 
     who supplied the assault rifle used in the attacks. We 
     further conclude that the legislation would effect far-
     reaching, and unprecedented, changes in the law that would 
     insulate the gun industry from other important pending cases 
     as well as future accountability.
       After providing a brief background concerning the sniper 
     victims' civil suit and the proposed legislation, we analyze 
     the impact of the legislation on the pending sniper case.

[[Page 2471]]

     We then offer some more general observations about the 
     proposed legislation, including a discussion of its 
     implications for other significant cases against gun dealers 
     and manufacturers.


                               background

I. The sniper victims' legal claims against the dealer and manufacturer 
                    who supplied the snipers' weapon

       For over a month in the fall of 2002, John Allen Muhammad 
     and Lee Boyd Malvo terrorized the nation's capital and its 
     surrounding states through a series of sniper attacks on 
     innocent men, women, and children. From the trunk of 
     Muhammad's car, the snipers used a deadly-accurate assault 
     rifle to kill thirteen people, and to seriously injure 
     another six, in Washington, DC, Maryland, Virginia, Alabama, 
     Louisiana and Georgia. Among the snipers' victims were a 47-
     year-old FBI analyst who was loading a car with her husband 
     in a Home Depot parking lot, a 72-year-old retired carpenter 
     who was waiting on a street corner, and a 13-year-old boy who 
     had just been dropped off at school. Muhammad and Malvo were 
     apprehended on October 24, 2002, and have since been 
     convicted for their crimes.
       The weapon that Muhammad and Malvo used in the sniper 
     attacks was a Bushmaster XM-15 E2S .223 semi-automatic rifle 
     equipped with a bipod and telescopic sight. The snipers 
     obtained the ``one shot, one kill'' assault weapon they used 
     in the shootings from Bull's Eye Shooter Supply in Tacoma, 
     Washington, even though the law prohibited either of them 
     from purchasing any firearm. Muhammad was under a domestic 
     violence protective order, and Malvo was both a juvenile and 
     an illegal alien. Bull's Eye representatives claim not to 
     have any record of sale for the weapon and cannot account for 
     how the snipers obtained the assault rifle.
       The publicly-available evidence reveals that in addition to 
     permitting the snipers' weapon to disappear from its shop, 
     Bull's Eye Shooter Supply engaged in numerous irresponsible 
     business practices:
       Large Number of Missing Guns. Bull's Eye could not account 
     for a total of 238 guns that were missing from its inventory 
     when the Bureau of Alcohol, Tobacco, Firearms and Explosives 
     (``AFT'') inspected the gun dealer in 2000 and 2002. Bull's 
     Eye's missing gun rate was greater than at least 99.73% of 
     all federal firearms licensees; 80% of dealers who sell at 
     least 50 firearms per year can provide records to account for 
     every one of their gun sales.
       Large Number of Crime Guns. Between 1997 and 2001, Bull's 
     Eye guns were involved in at least 52 crimes, including 
     homicides, kidnappings, and assaults, placing Bull's Eye in 
     the top 1% of all dealers nationwide in the supply of guns 
     used in crimes. That same 1% of gun stores supplies the 
     weapons traced to 57% of all gun crimes.
       Quick Time-to-Crime. The ``time-to-crime'' was less than 3 
     years for more than 70% of Bull's Eye guns that were used in 
     crimes between 1997 and 2001. Quick time-to-crime is 
     considered a ``red flag'' for problem gun dealers because it 
     indicates that such dealers' guns are quickly getting into 
     criminal hands through illegal trafficking. In 2000, the 
     nationwide median time-to-crime was 6\1/2\ years, and the 
     time-to-crime was under 3 years for only 31% of traced crime 
     guns. The time-to-crime for the snipers' weapon--which was 
     received by Bull's Eye in July 2002--was under 3 months.
       Large Number of Multiple Firearm Sales. Between 1997 and 
     2000, Bull's Eye sold 663 guns to 265 individual buyers, as 
     many as 10 guns at a time. Such ``multiple firearms sales'' 
     are considered to be another indicator that a gun dealer may 
     be selling to gun traffickers.
       Numerous ATF Citations. ATF cited Bull's Eye for violations 
     at least 15 times between 1997 and 2001, and, following the 
     sniper attacks, revoked the license of Bull's Eye's former 
     owner.
       Following ATF's revocation of his license, Bull's Eye's 
     former owner transferred ownership of the store to a close 
     friend. Bull's Eye continues to operate today, and the 
     store's former owner retains ownership of the property and 
     operates a shooting range in the same building.
       The manufacturer of the snipers' murder weapon of choice, 
     Bushmaster Firearms, Inc. of Maine, not only modeled its XM-
     15 rifle after military-style assault weapons that Congress 
     outlawed with the Assault Weapons Ban in 1994, but also 
     marketed the rifle as an assault weapon designed for sniper 
     activity. At the time, Bushmaster selected and used Bull's 
     Eye as one of its sixty distributors nationwide despite 
     numerous ``warning signs'' concerning Bull's Eye's handling 
     of its firearms inventory. Bushmaster also allegedly failed 
     to take certain basic precautions concerning the guns it 
     shipped to Bull's Eye and others, including, among other 
     things, declining the Justice Department's offer to assist 
     Bushmaster in tracing guns that had been used in crimes in 
     order to determine which of its dealers were supplying such 
     guns; neglecting to require Bull's Eye to adopt any of ATF's 
     suggested measures for preventing gun thefts; and failing to 
     require Bull's Eye to notify it of gun trace requests 
     initiated by law enforcement agencies or to certify its 
     compliance with firearms laws and regulations. Even after the 
     sniper attacks, Bushmaster, through its vice president of 
     administration, referred to Bull's Eye as ``a good customer'' 
     to whom Bushmaster would continue to sell guns.
       Victims of the sniper attacks and the families of victims 
     who were killed have filed a civil lawsuit in Washington 
     State Court against Bull's Eye Shooter Supply and Bushmaster 
     Firearms for their roles in permitting the snipers to access 
     their murder weapon. According to the complaint: ``In 
     addition to the intentional acts of Muhammad and Malvo, the 
     gross negligence of the gun industry defendants caused the 
     injuries and deaths that resulted from the sniper shootings 
     by enabling prohibited purchasers Muhammad and Malvo to 
     obtain the Bushmaster assault rifle to wreak havoc on 
     innocent persons.'' Specifically with respect to Bull's Eye, 
     the plaintiffs claim that the gun dealer's grossly 
     irresponsible business practices routinely permitted guns, 
     including the snipers' weapon, to disappear from its store. 
     They further claim that ``Bushmaster deliberately continued 
     to utilize Bull's Eye as a Bushmaster gun dealer and supplied 
     it with as many guns as Bull's Eye wanted, despite years of 
     audits by the Bureau of Alcohol, Tobacco, Firearms and 
     Explosives showing that Bull's Eye had scores of missing 
     guns.'' At the heart of plaintiffs' Complaint is their 
     allegation that if Bull's Eye and Bushmaster had ``acted 
     responsibly in the sale of their guns, Muhammad and Malvo 
     would not have been able to obtain the assault rifle they 
     needed to carry out the shootings.''
       On June 27, 2003, Washington Superior Court Judge Frank E. 
     Cuthbertson upheld the sniper victims' claims against the 
     defendants' motion to dismiss, concluding that the 
     plaintiffs' negligence and public nuisance claims were 
     actionable against both Bull's Eye and Bushmaster. Johnson v. 
     Bulls Eye Shooter Supply,  No. 03-2-03932-8, 2003 WL 21639244 
     (Wash. Super. Ct. June 27, 2003). The court found that the 
     plaintiffs' claims against Bull's Eye could stand based on 
     ``a common law duty in Washington to use reasonable care in 
     the sale and distribution of firearms''; that the ``facts in 
     the present case indicate that a high degree of risk of harm 
     to plaintiffs was created by Bull's Eye Shooter Supply's 
     allegedly reckless or incompetent conduct in distributing 
     firearms''; and that the facts alleged ``demonstrate an 
     arguably unbroken nexus between the loss of the assault rifle 
     and the injuries of the plaintiffs.'' The Court further 
     concluded that the plaintiffs' claims against Bushmaster 
     should be permitted to reach a jury based on Bushmaster's 
     entrusting firearms to Bull's Eye even though Bushmaster 
     allegedly ``knew or should have known that Bull's Eye Shooter 
     Supply was operating its store in a reckless or incompetent 
     manner, creating an unreasonable risk of harm.'' Trial in the 
     case against Bull's Eye and Bushmaster has been set for 
     November 2004.

II. The proposed immunity legislation for gun dealers and manufacturers

       On April 9, 2003, the House of Representatives passed a 
     bill (H.R. 1036) to provide sweeping immunity from pending 
     and future lawsuits to distributors, dealers, manufacturers, 
     and importers of firearms and ammunition. Senator Larry Craig 
     (R-ID) introduced companion legislation in the Senate (S. 
     659), which, last October, was modified to incorporate 
     certain amendments that had been proposed by Minority Leader 
     Tom Daschle (D-SD). The current version of the immunity bill 
     (S. 1805), which incorporates the so-called ``Daschle 
     Amendments,'' is expected to be considered by the Senate in 
     the first week of March 2004.
       According to its terms, S. 1805 would foreclose--and 
     require the immediate dismissal of--any state or federal 
     ``qualified civil liability action,'' Sec. 3(a), which the 
     statute defines to include any ``civil action brought by any 
     person against any manufacturer or seller'' of firearms or 
     ammunition ``for damages resulting from the criminal or 
     unlawful misuse'' of such products. Sec. 4(5)(A). From this 
     blanket prohibition on such civil actions, section 4(5)(A) of 
     the proposed bill carves out the following exclusive list of 
     circumscribed exceptions:
       (i) actions against a manufacturer or seller who has been 
     criminally convicted of transferring a firearm with the 
     knowledge that it would be used to commit a violent or drug-
     trafficking crime, if the plaintiff was directly harmed by 
     the conduct of which the recipient of the firearm has also 
     been criminally convicted;
       (ii) actions against a seller for ``negligent entrustment'' 
     or ``negligence per se'';
       (iii) actions against a manufacturer or seller who violated 
     a statute in the sale or marketing of a firearm or 
     ammunition, where that statutory violation was a proximate 
     cause of the plaintiff's injuries;
       (iv) actions for breach of contract or warranty in 
     connection with the purchase of a firearm or ammunition; and
       (v) actions for physical injuries or property damages 
     resulting directly from a design or manufacturing defect in a 
     firearm or ammunition, when such items have been used as 
     intended or in a ``reasonably foreseeable'' manner (as that 
     term is defined in the bill).
       Because S. 1805 expressly disclaims any intention to create 
     causes of actions or remedies, see Sec. 4(5)(D), the above-
     described exceptions would only preserve civil claims

[[Page 2472]]

     brought under otherwise applicable state or federal law. 
     Other than as specifically preserved by these exceptions, 
     however, the proposed legislation would preempt, as a matter 
     of federal law, any state or federal lawsuits against 
     irresponsible sellers or manufacturers of firearms or 
     ammunition.


                                analysis

I. The proposed immunity legislation would likely require the immediate 
                dismissal of the sniper victims' claims

       Close examination of the exceptions enumerated in section 4 
     of the proposed immunity legislation reveals that none would 
     appear to preserve the claims brought by the victims of the 
     sniper attacks and their families against the parties 
     responsible for permitting the snipers to obtain their murder 
     weapon. In fact, the passage of S. 1805 would likely compel 
     the judge in the sniper case immediately to dismiss those 
     claims. The following analysis focuses on paragraphs 
     (5)(A)(ii) and (5)(A)(iii) of the proposed legislation 
     because those provisions contain the only exceptions that 
     could even conceivably apply to the sniper case.

 A. The Statutory Violation Exception Embodied in Paragraph (5)(A)(ii) 
                Will Not Save the Sniper Victims' Claims

       Section 4, paragraph (5)(A)(ii) of the proposed legislation 
     preserves an ``action in which a manufacturer or seller of a 
     qualified product violated a State or Federal statute 
     applicable to the sale or marketing of the product, and the 
     violation was a proximate cause of the harm for which relief 
     is sought. . . .'' According to well-settled tort law 
     principles, proximate cause requires that a defendant's 
     conduct was ``a substantial factor in bringing about the 
     harm'' suffered by the plaintiff. See Restatement (Second) of 
     Torts Sec. 431 (2003); accord Derdiarian v. Felix Contracting 
     Corp., 414 N.E.2d 666, (N.Y. 1980); Anderson v. Duncan, 968 
     P.2d 440, 442 (Wyo. 1998). Where a defendant's statutory 
     violation was not a requirement to reject claims based on 
     that violation. See, e.g., Fox v. Bartholf, 374 So. 2d 294, 
     296 (Ala. 1979) (affirming summary judgment for defendants 
     where there was no evidence that truck driver's alleged 
     violation of statute, which prescribed lawful speed in 
     approaching highway intersections when driver's view is 
     obstructed, proximately caused plaintiff's injury); Yates v. 
     Shackelford, 784 N.E.2d 330, 336-37 (Ill. App. Ct. 2002) 
     (affirming summary judgment for defendants where defendant 
     driver's violation of left-shoulder parking ban did not 
     proximately cause collision); Travelers Indem. Co. of Ill. v. 
     28 East 70th St. Constr. Co., No. 01 Civ. 3001 (JGK), 2003 WL 
     23018604 (S.D.N.Y. Dec. 22, 2003) (granting defendant's 
     motion for summary judgment where alleged failure to stamp 
     pipe with manufacturer's identification number in violation 
     of building code ``clearly did not proximately cause the pipe 
     to freeze and burst'').
       The plain language of paragraph (5)(A)(ii) would appear to 
     dictate the same result in the sniper case. Despite the 
     above-discussed evidence of Bull's Eye numerous failings as a 
     gun dealer, there is no reason to believe that the plaintiffs 
     in the sniper case will be able to show that Bull's Eye 
     violated any state or federal statute with respect to the 
     particular gun that was used by the snipers or that any such 
     statutory violation was a proximate cause of the sniper 
     attacks. The evidence concerning the acquisition of the 
     snipers' weapon supports Bull's Eye's claim that Lee Boyd 
     Malvo shoplifted the gun. Indeed, after this arrest, Malvo 
     admitted that he shoplifted the weapon from Bull's Eye in the 
     summer of 2002. Although the plaintiffs claim that Bull's 
     Eye's lax security practices permitted Malvo to acquire the 
     weapon, such proof would not establish a violation of any 
     state of federal statute.
       Of course, the plaintiffs in the sniper case could attempt 
     to shoehorn Bull's Eye's failure to report the theft of the 
     snipers' weapon into the illustration provided in 
     subparagraph (A)(iii)(I), which covers ``any case in which 
     the manufacturer or seller knowingly made any false entry in, 
     or failed to make appropriate entry in, any record required 
     to be kept under Federal or State law.'' Federal law requires 
     licensed gun dealers to report the loss or theft of a firearm 
     ``within 48 hours after the theft or loss is discovered.'' 18 
     U.S.C. Sec. 923(g)(6). The difficulty with this argument, 
     however, is that Bull's Eye has denied that it knew the gun 
     was missing until the sniper suspects were apprehended and 
     authorities had traced the gun to the shop, and there is no 
     known evidence to refute that claim. (Bull's Eye in fact 
     reported the missing gun to authorities on November 5, 2002.) 
     Given Bull's Eye's claim, and the fact that the sniper 
     shootings were over by the time Bull's Eye's federal 
     reporting requirement would have been triggered by its 
     discovery that the weapon was missing, it appears unlikely 
     that the plaintiffs will be able to avoid dismissal based on 
     subparagraph (A)(iii)(I).

 B. The Negligent Entrustment/Negligence Per Se Exceptions Embodied in 
     Paragraph (5)(A)(ii) Will Not Save the Sniper Victims' Claims

       Nor is it likely that the exceptions embodied in paragraph 
     (5)(A)(ii) of section 4--which covers actions ``brought 
     against a seller for negligent entrustment or negligence per 
     se''--would save the plaintiffs' civil claims against Bull's 
     Eye and Bushmaster in the sniper case. As an initial matter, 
     because the subparagraph (A)(ii) exceptions are specifically 
     limited to a ``seller'' and, as defined in paragraph (6), 
     seller does not include firearm manufacturers, the exceptions 
     would not even apply to the claims against Bushmaster. 
     Moreover, as explained below, the plaintiffs' claims against 
     Bull's Eye would not appear to fall within the narrow 
     ``negligent entrustment'' and ``negligence per se'' 
     exceptions of S. 1805.

                        1. Negligent entrustment

       For purposes of applying paragraph (5)(A)(ii), the proposed 
     legislation provides the following definitions of ``negligent 
     entrustment'': ``the supplying of a qualified product by a 
     seller for use by another person when the seller knows, or 
     should know, the person to whom the product is supplied is 
     likely to, and does, use the product in a manner involving 
     unreasonable risk of physical injury to the person or 
     others.'' Sec. 4(5)(B). In light of the evidence that Malvo 
     shoplifted the snipers' weapon from Bull's Eye, the 
     plaintiffs in the sniper case will face significant obstacles 
     qualifying for that statutory exception.
       Courts have repeatedly rejected negligent entrustment 
     claims absent evidence that the defendant acted affirmatively 
     in entrusting--or, in the words of paragraph (5)(A)(ii), 
     ``supplying''--the dangerous instrumentality in question. See 
     Butler v. Warren, 582 S.E.2d 530, 532-33 (Ga. Ct. App. 2003) 
     (affirming summary judgment against plaintiff's negligent 
     entrustment claim where evidence did not permit finding that 
     defendants had allowed their truck to be driven off their 
     property); Mackey v. Dorsey, 655 A.2d 1333, 1338 (Md. Ct. 
     Spec. App. 1995) (affirming trial court's finding that 
     defendant was ``not liable for negligent entrustment''; ``We 
     find it axiomatic that when a vehicle is stolen, as it was 
     here, the owner cannot be said to have supplied, entrusted, 
     or `made available' his or her vehicle. The `making 
     available' of the chattel requires that the supplier do so 
     knowingly or with the intent to supply the chattel to that 
     person.''); Kingrey v. Hill, 425 S.E.2d 798, 799 (Va. 1993) 
     (reversing trial court and entering judgment for defendant on 
     plaintiff's negligent entrustment claim, which was based on 
     defendant's failure to prevent access to rifle; court 
     analogized to car cases, in which finding of ``entrustment'' 
     requires ``evidence of express permission, evidence of a 
     pattern of conduct supporting implied permission, or evidence 
     of knowledge that an automobile would be used notwithstanding 
     explicit instructions to the contrary''); Todd v. Dow, 19 
     Cal. App. 4th 253, 260-61, 23 Cal. Rptr. 2d 490, 494-95 (Cal. 
     Ct. App. 1993) (affirming summary judgment for parents in 
     negligent entrustment claim arising from their storage of 
     adult child's rifle in their house; ``Liability for negligent 
     entrustment arises from the act of entrustment . . . . 
     Parents did not sell, loan, furnish, or supply the rifle.''); 
     ``Commercial Carrier Corp. v. S.J.G. Corp., 409 So. 2d 50, 52 
     (Fla. Dist. Ct. App. 1981) (affirming dismissal of negligent 
     entrustment claim for injuries sustained in car accident 
     after defendant left keys in unattended car and car was 
     stolen; absent proof of knowledge and consent of car owner, 
     liability for negligent entrustment will not lie); Cutler v. 
     Travelers Ins. Co., 412 A.2d 284, 285 (Vt. 1980) (affirming 
     dismissal of plaintiffs' claims arising out of collision, 
     which resulted from car theft; fact that defendant left keys 
     in car ignition or truck lock could not establish entrustment 
     of car, by express or implied consent, to car thief); Reicher 
     v. Melzer, 158 N.E.2d 191, 193 (Ohio 1959) (affirming 
     directed verdict for defendant on plaintiff's negligent 
     entrustment claim where record showed that employee involved 
     in accident ``was operating the truck solely for his own 
     convenience in going from his place of employment, at the end 
     of his day's work, to his home on a rainy day; and that he 
     had taken the truck without anyone's permission or direction 
     and without defendant's knowledge'').
       Although courts throughout the country have recognized 
     separate claims for the negligent storage or security of 
     firearms, see, e.g., Heck v. Stoffer, 786 N.E.2d 265, 268-70 
     (Ind. 2003); Gallara v. Koskovich, 836 A.2d 840, 851 (N.J. 
     Super. Ct. Law Div. 2003); Long v. Turk, 962 P.2d 1093, 1097 
     (Kan. 1998); Pavlides v. Niles Gun Show, Inc., 637 N.E.2d 
     404, 408-10 (Ohio Ct. App. 1994); Kimbler v. Stillwell, 734 
     P.2d 1344, 1346-48 (Or. 1987) (en bank); Cathey v. Bernard, 
     467 So. 2d 9, 11 (La. Ct. App. 1985), such claims would be 
     foreclosed by the proposed immunity legislation.
       Furthermore, the narrow definition of ``negligent 
     entrustment'' in the proposed statute would likely prevent 
     the plaintiffs from relying on that exception for yet another 
     reason. The evidence that the snipers' weapon was shoplifted 
     from Bull's Eye would appear to preclude the plaintiffs from 
     making the requisite showing under the statute that the gun 
     shop knew or should have known that the recipient of the gun 
     (i.e., Malvo) was likely to use the product in a criminal or 
     otherwise unreasonably dangerous manner.

                          2. Negligence per se

       The proposed immunity bill does not define ``negligence per 
     se,'' but to the extent that the negligent per se exception 
     in paragraph (5)(A)(ii) would permit the survival of

[[Page 2473]]

     state causes of action, it will not assist the plaintiffs in 
     the sniper case: the negligence per se doctrine has been 
     abrogated by statute in Washington State. See RCWA 5.40.050; 
     Morse v. Antonellis, 70 P.3d 125, 126 (Wash. 2003); see also 
     Pettit v. Dwoskin, 68 P.3d 1088, 1091-92 (Wash. Ct. App. 
     2003) (``But the doctrine of negligence per se is no longer 
     viable in Washington. Rather, violation of a legal 
     requirement is evidence of negligence.'').
       In any event, the negligence per se exception would not 
     preserve the sniper case because even where that doctrine is 
     recognized, it requires a violation of a statute or 
     regulation that is the proximate cause of the plaintiff's 
     injury. See 57A. Am. Jur. 2d Negligence Sec. 728 (2003); 
     O'Guin v. Bingham County, 72 P.3d 849, 856 (Idaho 2003); 
     Elder v. E.I. DuPont De Nemours & Co., 479 So. 2d 1243, 1248 
     (Ala. 1985). As discussed above, however, it is doubtful that 
     the plaintiffs in the sniper case will be able to establish 
     that any such violation was a substantial factor in causing 
     their injuries.

II. The proposed immunity legislation would overturn well-settled legal 
          principles and jeopardize other important gun cases

       The proposed immunity legislation would have far-reaching 
     implications beyond its likely direct and immediate effect on 
     the pending civil case brought by the snipers' victims. The 
     statute would accord gun dealers and manufacturers an 
     unprecedented immunity. Indeed, under the statute, dealers 
     and manufacturers of lethal weapons would receive insulation 
     from lawsuits to which the sellers and makers of virtually 
     every other product (including even toy guns) would be 
     subject. As discussed herein, the legislation would close 
     courtroom doors nationwide to any claims arising out of, 
     among other things, the negligent security or storage 
     practices of any gun dealer or manufacturer, the negligent 
     sale of guns by and dealer to so-called ``straw purchasers'' 
     for illegal gun traffickers, and the negligent failure of any 
     gun manufacturer to include basic safety devices that would 
     have prevented tortious or criminal shootings.
       The implications of the sweeping immunity proposed for the 
     gun industry are further compounded by the fact that the 
     industry is already largely exempt from federal regulations 
     that apply to the manufacture and distribution of other 
     products. Guns were specifically exempted from the 
     jurisdiction of the Consumer Product Safety Commission, which 
     Congress created in 1972 to protect the public from consumer 
     product injuries. Even ATF--which licenses and oversees gun 
     dealers--lacks any authority to establish manufacturing or 
     distribution standards for firearms.
       Focusing exclusively on criminal and other statutory 
     prohibitions, supporters of the proposed immunity legislation 
     have argued that the bill would simply eliminate lawsuits 
     against gun dealers and manufacturers who ``have not broken 
     the law.'' But this oversimplified view ignores the pivotal 
     role that state and federal common law plays in promoting 
     public safety and accountability, in addition to ensuring 
     compensation for the victims of dangerous and irresponsible 
     conduct. Beyond criminal and other statutory proscriptions on 
     such conduct, civil common law has long protected the public 
     by holding businesses and individuals alike to a standard of 
     reasonable care in all their activities. The broad insulation 
     from suit promised by the immunity legislation would largely 
     free the makers and sellers of deadly weapons from such 
     generally applicable common law standards.
       Nor does the fact that gun injuries often result from 
     criminal acts provide a legal justification for the immunity 
     legislation. It has long been a settled principle of tort law 
     that an intervening act of a third party, even if criminal 
     (e.g., a sniper shooting), will not break the causal chain 
     from a party's negligence (e.g., the negligent distribution 
     of the murder weapon) to a plaintiff's injury so long as the 
     intervening act was reasonably foreseeable. See, e.g., Largo 
     Corp. v. Crespin, 727 P.2d 1098, 1103 (Colo. 1986) (en banc); 
     Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d 54, 55-56 
     (Fla. 1977); see also Restatement (Second) of Torts Sec. 302B 
     (2003) (``An act or an omission may be negligent if the actor 
     realizes or should realize that it involves an unreasonable 
     risk of harm to another through the conduct of the other or a 
     third person which is intended to cause harm, even though 
     such conduct is criminal.''). As Judge Cuthbertson correctly 
     recognized in the sniper case, where a defendant handles a 
     lethal weapon in an irresponsible manner, through which 
     criminals and other prohibited persons may access it and use 
     it to commit dangerous crimes, the question of whether there 
     is an adequate causal link between the tortfeasor's conduct 
     and the resulting injuries is for a jury to decide. Johnson, 
     2003 WL 21639244, at *3-4.
       In addition to the sniper case, the proposed immunity would 
     likely require the dismissal of several other important cases 
     that seek to hold allegedly reckless gun dealers and 
     manufacturers responsible for their conduct, including:
       Hernandez ex rel. Guzman v. Kahr Arms, Civ. Act. No. 
     WOCV2002-01747 (Mass Super. Ct. 2003). Danny Guzman was shot 
     and killed with a nine millimeter handgun, one of several 
     guns that had been stolen and resold by employees of the Kahr 
     Arms factory. According to the lawsuit filed by the 
     decedent's family, defendant Kahr Arms employed a number of 
     convicted criminals and drug addicts because it did not 
     conduct general or criminal background checks on its 
     employees and did not test prospective or existing employees 
     for drugs. To make matters worse, the plaintiffs allege that 
     Kahr Arms did nothing to prevent employees from leaving its 
     plant with guns--which Kahr touted as ``the smallest, 
     flattest, most reliable full power compact handguns made''--
     even before they had been stamped with serial numbers, 
     rendering them virtually untraceable. Among the plaintiffs' 
     other claims, Kahr Arms had no metal detectors, x-ray 
     machines, security cameras, or security guards; did not check 
     employees at the end of their shifts; did not use any 
     inventory-tracking system to determine when weapons or parts 
     were missing; and could not account for approximately 16 
     outgoing shipments of weapons that never arrived at their 
     intended destinations between February 1998 and February 
     1999. On April 7, 2003, the Massachusetts Superior Court 
     upheld the plaintiffs' negligence and public nuisance claims 
     against Kahr Arms' motion to dismiss. The Guzman's family's 
     right to sue Kahr Arms would be immediately revoked if the 
     proposed immunity legislation were to pass. As in the sniper 
     case, the claims against Kahr Arms involve irresponsible 
     security for deadly weapons, claims that would be foreclosed 
     by the proposed immunity legislation. First, the plaintiffs' 
     claims of negligent security against Kahr Arms do not involve 
     any statutory violation. Moreover, the negligent entrustment 
     exception would not apply to Kahr Arms for the dual reasons 
     that it is a firearm manufacturer and that it did not entrust 
     any weapon to Danny Guzman's shooter.
       Lemongello v. Will Company, No. Civ.A. 02-C-2952, 2003 WL 
     21488208 (W. Va. Cir. Ct. Mar. 19, 2003). New Jersey Policy 
     Detective David Lemongello and Officer Kenneth McGuire were 
     seriously injured in January 2001 when they were shot by a 
     career criminal while performing undercover police work. Even 
     though the shooter was a person prohibited by law from 
     purchasing a firearm, he obtained his weapon, a nine 
     millimeter semi-automatic Ruger handgun, illegally from a gun 
     trafficker. The trafficker, in turn, was also prohibited from 
     buying weapons due to a prior felony, so he used an 
     accomplice (a so-called ``straw purchaser'') to make multiple 
     gun purchases from defendant Will Jewelry & Loan, in West 
     Virginia. In their lawsuit against Will Jewelry & Loan and 
     others, the officers allege that the gun dealer acted 
     negligently in selling the straw purchaser twelve guns 
     (including the Ruger used in the shooting of the two 
     officers) that had been selected in person by the gun 
     trafficker and paid for in a single cash transaction. The 
     circumstances of that sale were so suspect that the defendant 
     dealer reported it to the ATF--but only after the purchase 
     price had been collected and the guns had left the store. The 
     officers' suit further charges gun manufacturer Sturm Ruger & 
     Company with negligently failing to monitor and train its 
     distributors and dealers and negligently failing to prevent 
     them from engaging in straw and multiple firearm sales. 
     Although a West Virginia trial court has held that the 
     plaintiffs have stated valid negligence and public nuisance 
     claims under state law, the proposed immunity legislation 
     would require the immediate dismissal of those claims. 
     Notwithstanding the plaintiffs' claims that the defendants 
     failed to exercise reasonable care in their sales of 
     firearms, neither the dealer nor the manufacturer violated 
     any statutory prohibition in selling the guns. Nor could the 
     plaintiffs contend that their case falls within the 
     ``negligent entrustment'' exception to the proposed immunity 
     legislation because the gun dealer supplied the firearm to a 
     straw purchaser--not to someone whom the seller knew or 
     should have known was likely to, and did, use the product in 
     a manner involving unreasonable risk of physical injury to 
     the person or others.
       Smith v. Bryco Arms, 33 P.3d 638 (N.M. Ct. App.), cert. 
     denied, 34 P.3d 610 (N.M. 2001). Fourteen-year-old Sean Smith 
     was seriously injured when a friend accidentally shot him in 
     the mouth with a .22 caliber handgun, the Bryco J-22. The 
     shooter believed the gun was unloaded because the ammunition 
     magazine had been removed; the gun failed to reveal the 
     hidden bullet in its chamber. Sean Smith's parents sued the 
     manufacturer (Bryco Arms) and the distributor (Jennings 
     Firearms) of the J-22 alleging negligence and products 
     liability claims based on the defendants' failure to 
     incorporate any of the various available safety features that 
     would have prevented the accidental shooting, including an 
     internal ``magazine-out safety'' lock, a ``chamber load 
     indicators,'' or a written warning on the gun alerting users 
     that the J-22 could fire even with its magazine removed. 
     Reversing a lower court decision, the New Mexico Court of 
     Appeals has held that the defendants could be held liable for 
     their failure to incorporate long-known, available, and 
     economically feasible safety devices in the J-22. The 
     proposed immunity legislation, however, would require the 
     immediate dismissal of these claims because the shooting of 
     Sean Smith, even if accidental, constituted an ``unlawful 
     misuse'' of the J-22,

[[Page 2474]]

     thereby removing the case from the statutory exception 
     ostensibly intended for cases involving gun design or 
     manufacturing defects. See Sec. Sec. 4(5)(A)(v) (preserving 
     ``an action for physical injuries or property damage 
     resulting directly from a defect in design or manufacture of 
     the product, when used as intended or in a manner that is 
     reasonably foreseeable'') & 4(5)(C) (defining '`reasonably 
     foreseeable'' for purposes of paragraph 5(A)(v) to exclude 
     ``any criminal or unlawful misuse of a qualified product, 
     other than possessory offenses''). Indeed, given the fact 
     that virtually any shooting of a person would constitute a 
     ``criminal or unlawful misuse'' of a firearm, the immunity 
     legislation would effectively eliminate most claims arising 
     out of the defective design or manufacture of a firearm.
       By preventing these cases, and future cases like them, from 
     proceeding against irresponsible gun dealers and 
     manufacturers, the proposed immunity legislation would 
     undermine the incentives that encourage reasonable business 
     practices in the gun industry, thereby inevitably failing to 
     deter avoidable gun injuries and fatalities.
       In sum, the proposed legislation would insulate gun dealers 
     and manufacturers from the obligations to act reasonably and 
     in good faith that every other business has. If the 
     legislation were to pass, sellers of products that are among 
     the most dangerous products would have the least obligation 
     to act reasonably.
       For all of the above reasons, it is our judgment that the 
     passage of S. 1805 would require the immediate dismissal of 
     the pending civil case against the gun dealer and 
     manufacturer who supplied the snipers' murder weapon as well 
     as other significant cases against gun dealers and 
     manufacturers. Furthermore, by providing the gun industry 
     with unprecedented immunity from common law claims directed 
     at those who engage in irresponsible and dangerous business 
     practices, the proposed legislation would further insulate 
     the sellers and manufacturers of deadly weapons from public 
     accountability for such conduct.
           Sincerely,

     David Boies.
     Sean Eskovitz.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I rise today in support of S. 1805, the Protection of 
Lawful Commerce in Arms Act. This critically important bipartisan 
legislation will block baseless lawsuits initiated by individuals who 
wish to drive out of business a lawful and legitimate business, the 
American firearms industry.
  This bill will halt lawsuits that are nothing more than shameless 
attempts to advance a stalled anti-gun legislative agenda and a 
flagrant abuse of the judicial system. I commend my colleague, Senator 
Larry Craig, and other cosponsors from both sides of the aisle, over 50 
of them, for their hard work to get this bill to the Senate floor.
  As my colleagues are aware, I have long been a proponent of 
legislation that addresses the growing problem of lawsuit abuse. The 
issues addressed by this legislation will remedy one such class of 
shameless and abusive lawsuits. I am hopeful this will be the first of 
many other reform measures that the Senate will take up before the end 
of the 108th Congress. This includes asbestos reform that would save 
this country, save jobs, provide jobs, for hundreds of thousands of 
people; bankruptcy, which also would save jobs that our friends on the 
other side seem to be stopping; and class action reform, which in the 
end would save jobs.
  As I mentioned, this legislation has broad bipartisan support, 
including from the minority leader. I agreed with my colleague, Senator 
Daschle, when he quite accurately stated:

       It is wrong, and it is a misuse of the civil justice 
     system, to try to punish honest, law-abiding people for 
     illegal acts committed by others without their knowledge or 
     involvement. That's not the way we do things in America. We 
     do not hold innocent people responsible for acts they are not 
     involved in and over which they have no control.

  I commend Senator Daschle. He could not have said it better. I call 
these lawsuits shameless because the trial lawyers who bring them--and 
they are really personal injury lawyers, by and large, who bring them--
dislike and attack a product that is produced and marketed legally. 
What is going on is simply outrageous. It is as absurd as suing a car 
manufacturer for drunken driving accidents or suing a fast food company 
because a hamburger has more calories than it should. We must put a 
stop to these senseless lawsuits before our legal system grinds to a 
halt.
  The need for legislation of this type is imperative. This legislation 
will prohibit civil liability actions against the firearms industry for 
damages resulting from the misuse of its products by others; that is, 
meritless lawsuits based on lawful products that are intentionally 
misused are prohibited by this bill. Now, anybody who thinks ought to 
agree with that.
  In product liability cases, plaintiffs traditionally have been able 
to sue for compensation for injuries because, No. 1, a product was 
defective; No. 2, the defect posed an unreasonable danger to the user; 
and No. 3, the defect caused the injury. A ``defective product'' is one 
that does not operate as a reasonable manufacturer would design and 
make it, as a reasonable consumer would expect, or as other products of 
its type.
  Courts uniformly have held that a defect must exist in the product at 
the time it was sold and that a plaintiff's injury must have been the 
result of that defect. However, in the firearms context, gun 
manufacturers and dealers are potentially liable for injuries that 
occur because their properly operating product is criminally or 
negligently misused. Now, this is unacceptable.
  I would also like to take this opportunity to make clear that this 
legislation does not relieve from liability gunmakers who create 
defective products or gun dealers who negligently sell weapons when 
they know or should have known that such a weapon would be used in a 
crime.
  Additionally, this legislation contains the following significant 
safeguards: One, an action brought against a transferor convicted for 
transferring a firearm knowing it would be used in a crime of violence 
or drug trafficking crime by a party directly harmed by the conduct of 
which the transferee is so convicted; No. 2, an action brought against 
a seller for supplying a firearm or ammunition to another person when 
one knows or should know that person is likely to and does use the 
product in a manner involving unreasonable risk of physical injury to 
the person and others for negligence per se; No. 3, an action in which 
a manufacturer or seller violated a State or Federal statute applicable 
to the sale or marketing of the product and the violation was the 
proximate cause of the harm for which relief was sought; No. 4, an 
action for breach of contract or warranty in connection with the 
purchase of a product; or No. 5, an action for physical injuries or 
property damage resulting directly from a defect in design or 
manufacture of the product when used as intended or in a manner that is 
reasonably foreseeable.
  Now, because this bill strikes the right balance between protecting 
the general public and those who manufacture a lawful product, I 
strongly support the legislation, and I urge all of my colleagues to do 
the same.
  We all know what is involved. We know the personal injury lawyers are 
going to sue just about anybody against whom they are able to conjure 
up a theory of liability, and hope that some of the irresponsible 
judges in this country will allow those cases to go to the jury. Then 
on appeal, they hope irresponsible appellate lawyers and activist 
judges, will ignore the law, ignore every basic instinct of the law, 
and allow those lawsuits to go forward. And they hope their friends on 
the Supreme Court will ignore the law as well and through activism do 
whatever they believe is right, as many of the judges on the Ninth 
Circuit Court of Appeals do every day. They ignore the law completely, 
do whatever their gut tells them ought to be done, even though most of 
the time their gut is filled with legalistic ulcers.
  The fact is, that is not the way the law should run. That is not the 
way it should operate. Lawyers should be ashamed to bring these type of 
cases. In this particular bill, we protect the consuming public and 
others from irresponsible misuse of firearms. We protect them from 
irresponsibility on the part of any gun manufacturer. That needs to be 
said, and it needs to be said over and over.
  The fact is, what we have is a lot of very liberal thinkers who think 
that guns should not be owned by anybody,

[[Page 2475]]

or they should be owned only by a few--I guess those who have been to 
some sort of anti-gun college.
  The fact is, most Americans own guns, most Americans value guns, most 
Americans believe in protecting themselves and their families. Where we 
have the most guns, that is where we have the lowest amount of crime.
  Everybody knows I have brought a bill to the Senate to allow guns to 
be kept in the home in the District of Columbia, which many refer to as 
Murder Capital USA. I don't want to bring that up as an amendment on 
this. I might have to, if some of these irresponsible amendments filed 
pass. We know the only way this bill is going to make it to the 
President's signature is if it doesn't have any other amendments on it. 
But if any others pass, I think we ought to vote on that one as well. 
Because, to be honest with you, I have had hundreds of DC residents 
call me and say thank God somebody is acting in our interests, where we 
can at least protect our homes.
  That is how bad it is. We have people who just don't believe in guns, 
don't believe in sportsmanship, don't believe in the right to collect 
guns, who are going to be against them for political reasons because 
they think there are political advantages for them. Frankly, I think 
they are going to find there are not any political advantages for them 
because most people in our country believe in the right to have their 
own arms. Most people hunt and fish. Most people are proud of the fact 
they can take their young boys or girls out and have target practice 
and shoot guns.
  The fact is, the vast majority, the highest percentile in the world, 
use guns responsibly in this country. For those who do not, I am for 
coming down very hard against them. For those who misuse guns in the 
commission of crimes, you can't get any tougher on crimes than Orrin 
Hatch is. Frankly, we passed legislation around here, anti-crime 
legislation, Senator Biden and myself and others, that literally goes 
hard on those who use and misuse weapons and use them in criminal 
activity. That is what we should be doing. But we certainly ought not 
to allow spurious, frivolous lawsuits brought against gun manufacturers 
who have done nothing wrong other than make guns the American people 
would like to own.
  With that, I don't mean to demean anybody on the floor. All I can say 
is that for the life of me, I can't understand why anybody would be 
against this bill who understands the law and understands the way the 
law should be applied. Frankly, I am amazed that some are. There were 
22 who voted against cloture this morning. That was unbelievable. The 
fact of the matter is, cloture should have been invoked 100 to zip, but 
that is how far this issue has denigrated, to the point where it is 
just a political issue in the eyes of some.
  It is time to get rid of the politics and understand the American 
people are not going to put up with that kind of stuff, and they should 
not. The law should not be used in the frivolous fashion some of these 
personal injury lawyers use it. There are a lot of great personal 
injury lawyers out there and there are a lot of great trial lawyers who 
do what is right and who would not think for a minute of bringing these 
frivolous lawsuits against gun manufacturers who are not responsible 
for the misuse of their weapons. When they are irresponsibly brought, 
this bill takes care of them. It says you are going to pay for it.
  But when they are not responsible for the misuse of their weapons, 
why in the world would we allow litigation to be brought, just because 
the trial lawyers might support us? There is a certain point where any 
good thinking person has to say: Look, the law is more important than 
just emotion. Unfortunately, most of the arguments used against this 
bill are emotional arguments that really have no place in the area of 
law. Frankly, they should not be paid very much attention.
  I yield the floor.
  Mr. REED. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant Journal clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
minority leader is recognized.
  Mr. DASCHLE. Mr. President, the legislation we consider today 
attempts to strike a careful balance between the safety of Americans 
and the rights of gun manufacturers and dealers. As I have said on many 
occasions, the vast majority of gun owners, manufacturers, and sellers 
are honest and certainly obey the law. Moreover, the firearm industry 
is an important source of jobs and tax revenue for our country. It is 
wrong, and it is a misuse of the civil justice system, to punish 
honest, law-abiding people for the illegal acts of others.
  At the same time, Americans who are injured due to defective products 
have a right to seek justice in the courts. In our efforts to protect 
the gun industry from meritless lawsuits, we should take care not to 
invalidate legitimate claims from being heard in court. There are 
several ongoing cases that involve product defects or cases where 
manufacturers or gun dealers may actually have broken the law, and 
those victims have a right to be heard.
  As this bill was being written, many individuals raised concerns that 
the bill failed to consider the many important claims of victims of 
defective products or illegal actions. Because of these concerns, I 
have worked with my colleagues, Senator Craig in particular, Senator 
Baucus, and others to draft a commonsense, bipartisan amendment that 
improves this legislation by providing stronger protections for 
meritorious cases. This amendment is not perfect, but it goes a long 
way toward balancing both the rights of victims and the needs of the 
gun industry.
  Our amendment makes several important changes. First, the language in 
the original bill forced plaintiffs to prove defendants knowingly and 
willfully broke the law before a suit could proceed. This is a high 
standard that would deny many victims the right to pursue legitimate 
claims. The amendment we now offer removes this language, to ensure 
cases in which Federal or State firearms laws have been broken can move 
forward without meeting an artificially high threshold of proof.
  Second, as originally drafted, the bill created a few exceptions, 
where gun manufacturers' and dealers' immunity would not apply. These 
exceptions were tailored too narrowly. In fact, one of the exceptions 
could have invalidated cases in which an individual had sold a firearm 
to someone who committed a drug offense or violent crime simply because 
the individual had not yet been convicted of that offense. This 
amendment, our amendment, modifies this language to ensure these bad 
actors would not be protected from accountability merely because they 
were not successfully prosecuted.
  Third, when a gun is defective, the manufacturer should be held 
responsible. However, as originally drafted, the bill limited product 
liability to such degree that it would be virtually impossible to bring 
cases against manufacturers. Our amendment provides greater protection 
for product liability cases, so, in particular, if a child is injured 
by a defective gun, the victim's loved ones can hold those responsible 
accountable.
  Fourth, the original legislation did not specifically address 
businesses that sell to the straw purchasers; that is, people who buy 
guns only to resell them in the black market to criminals or children. 
With this amendment, the bill would include a provision to remove 
immunity from those dealers who sell to so-called straw purchasers.
  Fifth, the amendment Senator Craig and I will offer addresses 
concerns about this bill's definition of trade associations. Many 
advocates indicated that, as drafted, even extremist organizations 
could have obtained immunity. Obviously, this is not the intent of the 
bill's sponsors, nor is it the intent of the gun industry. Therefore, 
we modified the definition to ensure that only trade associations 
connected to the business of manufacturing and selling firearms would 
be covered.
  The Protection of Law Commerce in Arms Act, as amended by the 
Daschle-

[[Page 2476]]

Craig amendment, strikes a meaningful balance between the rights of 
legitimate business owners and the rights of individuals who have been 
injured by gun violence. The Senate achieves the goal of protecting 
manufacturers from illegitimate lawsuits, while maintaining the rights 
of victims to hold those responsible for their injuries accountable.
  With the inclusion of our amendment, immunity will not cover a number 
of cases including those where a dealer sells a gun to someone who is 
prohibited from owning a gun, whether not they have been convicted of a 
crime; a dealer sells a gun to a juvenile or to an undocumented alien; 
a manufacturer develops a defective gun that injuries a child; or where 
a dealer fails to report the theft of a gun as required by law.
  In each of these cases, a business loses its immunity only as a 
result of its own actions, not the actions of a third party.
  The cosponsors of this amendment have worked hard to ensure that the 
gun immunity bill does not inadvertently harm important cases.
  The principle of equality before the law demands that everyone--
individuals and businesses alike--can be held accountable for their 
actions.
  This legislation should not provide blanket immunity that protects 
``bad actors.'' By striking a more sensible balance, my amendment 
strives to preserve the long-term vitality of an important American 
industry, while protecting the rights and the safety of the American 
public.
  I hope my colleagues, when the legislation is offered later, will 
support it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I thank Senator Daschle, our minority 
leader, the Senator from South Dakota, for the cooperative way in which 
he has worked with us to, in his own words, improve, narrow, clean up 
this piece of legislation.
  As I have already said on the floor today, a good number of times, 
the Daschle amendment--the effort that S. 1805 seeks to accomplish--is 
a very narrow way of protecting law-abiding, legitimate firearm 
manufacturers and dealers, but not to stand in the way of access to the 
courts as a result of somebody being harmed by somebody who has acted 
illegally as a licensed dealer or a firearms manufacturer.
  I truly appreciate the Senator's efforts in behalf of this very small 
community of folks in the industry of manufacturing quality firearms. 
It is critical for our Nation, for law-abiding citizens, and for our 
national security. The Senator has seen that and understood it, and we 
will work now to hopefully get this bill before us soon this afternoon 
so amendments can be offered. I think the Senator has been ready to do 
that. That will move us down the road toward hopefully final debate and 
a vote on this legislation.
  The PRESIDING OFFICER. The minority leader.
  Mr. DASCHLE. Mr. President, I appreciate the kind words of the 
Senator from Idaho. I also share his view that it is important we move 
to the bill so we can begin entertaining amendments. I think there are 
a number of thoughtful amendments which deserve our consideration. The 
sooner we move to the bill, the sooner we can begin the amendment 
process. Some will pass and some will be defeated, but I think it is 
critical we get on with that debate and offering amendments today. It 
is 4 o'clock. We have had a good debate about the motion to proceed, 
and certainly about the bill itself. It is my hope that not in the too 
distant future--sometime perhaps within the hour--we might move to 
allow floor amendments. I would certainly be prepared to offer mine at 
that time.
  I yield the floor.
  Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant Journal clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.
  Mr. CRAIG. Mr. President, the leadership of both sides of the aisle, 
at the moment, is working to try to see if we can gain a unanimous 
consent request that would bring us to the bill hopefully within the 
hour and possibly deal with one or two amendments, and at least one 
amendment voted up or down; and then the laying down of another 
amendment at least this evening and starting debate on that.
  So I thought for a few moments I would give a little background as to 
what has brought us to this point in time and S. 1805.
  Senator Daschle was in the Chamber a few moments ago to visit with 
the Senate about his amendments and what we effectively incorporated in 
the bill. He has some fine-tuning he may offer as one of the first 
amendments this evening.
  But when Senator Baucus and I introduced S. 695 back in the spring, 
more than half of the Senate--Republicans and Democrats--became 
original cosponsors. Today we have 55 cosponsors, including the 
leadership on both sides. A similar bill, H.R. 1036, was passed in the 
House of Representatives by a 2-to-1 margin over a year ago.
  Now we have before us S. 1805, again, very similar to what we did in 
1995, but with some adjustments made with the Senator from South 
Dakota. This is an extraordinary showing of support for a bill. I 
believe it is a testament to the gravity of the threat addressed by 
this legislation: The abuse of our courts through lawsuits filed to 
force law-abiding businesses to pay for criminal acts by individuals 
beyond their control.
  The businesses I am talking about are collectively known as the U.S. 
firearms industry. The lawsuits I am talking about claim that even 
though these businesses complied with all of the laws and sell a 
legitimate product, they should be responsible for the misuse or the 
illegal use of the firearm they produce, misused by a criminal. These 
actions are pursued with the intent of driving this industry out of 
business--regardless of the thousands of jobs that would be lost in the 
process and the impact on citizens across the Nation who would never 
contemplate committing a crime with a gun.
  Let's be very clear about this. These lawsuits are not brought by 
individuals seeking relief for injuries done to them by anyone in the 
industry. Instead, this is a politically inspired initiative trying to 
force social goals through an end run around the Congress and the State 
legislatures.
  I believe that is worth repeating because it is the essence of the 
legislation. Instead, I believe these lawsuits are politically inspired 
initiatives trying to force social goals, or public policy, if you 
will, through an end run around the Congress and the State 
legislatures.
  The theory on which these lawsuits are based would be laughable if it 
were not so dangerous: To pin the responsibility for a criminal act on 
an innocent party who was not there and had nothing to do with the act. 
They argue that merely by virtue of the fact that a gun was present, 
those who were part of the commercial distribution chain should be held 
responsible for the gun's misuse.
  Earlier today, I talked about all kinds of chains in commerce--
automobiles, and other vehicles, and other tools that are used 
tragically enough sometimes or misused in a way that they take a human 
life. What about a baseball bat? We hear, every so often, of a baseball 
bat used in the commission of a crime in which the baseball bat or the 
use of it struck a person and killed them. Should we make a person who 
manufactured that baseball bat liable or should we do that which we 
have always done in this country: made the individual responsible for 
his or her action?
  This is not a legal theory. It is just the latest twist in the gun 
controller's notion that it is the gun, and not the criminal, that 
causes the crime; it is the car, and not the drunk driver, that kills 
the child it runs over.
  The truth is, there are millions of firearms in this country today. 
Yet

[[Page 2477]]

only a very tiny fraction of them are ever used in the commission of a 
crime. The truth is, again and again law-abiding firearms owners are 
using their guns, often without ever firing a shot, to defend their 
life or the lives of their family and their property. That is what the 
second amendment is all about. That is why this right is ingrained 
within the character and the culture of this country. The truth is, the 
intent of the user, not the gun, is what determines whether that gun 
will be used in a crime. A gun can be nothing but a piece of metal 
until it is used carefully and wisely by an individual in defense of 
themselves or in hunting by the expertise of the shooter, or it can 
become a very lethal weapon in the hands of a criminal in the taking of 
a life.
  The trend of abusive litigation targeting the firearms industry not 
only defies common sense and concepts of fundamental fairness, but it 
would do nothing to curb criminal gun violence.
  Let me repeat that. Does it stop gun violence in this country? No, it 
does not. The only way you do that is to sweep our country clean of the 
millions of firearms that are owned out there, and certainly take them 
out of the hands of criminals. But we know that is a near impossible 
task, too. Furthermore, the trend jeopardizes America's 
constitutionally protected access to firearms for defense and other 
lawful uses.
  The bill that more than half of the Senate has already endorsed is a 
measured response that would put a stop to this abusive trend without 
endangering legitimate claims of relief. Let me emphasize that it does 
not insulate the firearms industry from lawsuits or deprive legitimate 
victims of their day in court, as some critics have already charged.
  Nowhere in S. 1805 is there a padlock on the courthouse door. Quite 
the opposite. If this becomes law, this is the law that will be argued 
in court by some as to why a given lawsuit ought to be thrown out. And 
we trust the judge, wise and learned, will listen to all of those 
arguments and make a decision as to whether the lawsuit goes forward 
because it is legitimate within the law or it is simply just that, 
frivolous, it is not legitimate within the law, and it ought to be 
denied or cast aside.
  Again, let me emphasize, it does not insulate the firearms industry 
from all lawsuits or deprive legitimate victims of their day in court, 
as some critics would, in fact, argue, and has been already argued 
several times on the floor today. In fact, it specifically provides 
that some actions can be brought against those in the business of 
manufacturing and selling firearms when they violate the law or act 
wrongfully themselves.
  Earlier today, I went through those five areas that we have clearly 
identified in the law where action can be taken. Senator Daschle has 
even refined that a little more to make sure all is clear in this given 
area. Actions based on breaches of contract, defects in firearms, 
negligent entrustment, criminal behavior--these actions would not be 
affected by this legislation. The laws there are already clear. People 
are being tried today in the courts based on those laws, and S. 1805 in 
no way would wipe them aside or cause a different action.
  S. 1805 is solely directed at stopping frivolous politically driven 
legislation against law-abiding individuals for the misbehavior of 
criminals over whom they have no control. The courts of our Nation are 
supposed to be forums for resolving controversies between citizens and 
providing relief where warranted, not a mechanism for achieving 
political ends that are rejected by the people's representatives--the 
Congress or the State legislatures.
  I believe that is the fundamental essence of 1805. It is direct. It 
is clearly to the point. It ought to be. I am pleased that 75 Members 
of the Senate earlier today said let's move this legislation to the 
floor. Let's begin the process. Let's vote up or down. Let's keep the 
bill clean and deal with this critical issue.
  Once again, let me talk for a few moments about those exceptions we 
have carved out or defined within the law in the bill to make sure 
there is no question. The key to S. 1805 is the definition of qualified 
civil liability action which is addressed in the definitions section, 
section 4. I ask all of my colleagues to go there and read it. It is a 
simple bill, an easy bill to read, of 11 pages. But we made sure that 
we clearly spelled out a qualified civil liability action, which is 
defined as a lawsuit brought by any person against a manufacturer or a 
seller of a qualified product or a trade association for damages 
resulting from the criminal or unlawful misuse of a qualified product 
by a person or a third party.
  Section 4, subsection 5, the definition then excludes five categories 
of lawsuits from coverage under 1805. In other words, we make very 
clear these following areas:
  No. 1, an action brought against a transfer convicted under section 
924(h) of title 18 United States Code, or a comparable or identical 
State felony law, by a party directly harmed by the transferee's 
conduct. In other words, illegal movement of the weapon itself.
  An action brought against a seller--this is the second one--for 
negligent entrustment of negligence per se. Negligent entrustment is 
defined in section 4, subsection 5(a), as the supplying of a qualified 
product by a seller for use by another person when the seller knows, or 
should know, the person to whom the product supplied is likely to, and 
does, use the product in a manner involving unreasonable risk of 
physical injury to the person and others. Misuse of the firearm, 
knowing that is going to happen. That is what Senator Daschle spoke to 
so clearly today in his clarifying amendment.
  The third item, an action in which a manufacturer or seller of a 
qualified product knowingly and willfully violated a State and Federal 
statute applicable to the sale or marketing of the product and the 
violation was a proximate cause of the harm for which relief is sought.
  No. 4, the action for breach of contract or warranty in connection 
with the purchase of the product.
  No. 5, an action for physical injury or property damage resulting 
directly from a defect in the design or manufacturing of the product--
in other words, product liability--when used as intended or in a manner 
that is reasonable and foreseeable.
  And then, as I mentioned, the Daschle language amends the text to 
permit suits against manufacturers or dealers engaging in straw 
purchase transactions. That is, when one individual purchases a firearm 
on behalf of a third party.
  Why did we spell these out? We wanted the Senate and the citizens of 
our country to understand that this was not broad, nor was it sweeping. 
At the same time we wanted everyone to understand that what we were 
saying very clearly is something that has been said time and time again 
as it relates to the value of this legislation; that is, the 
reenforcement of centuries of legal precedent based on individual 
responsibility, not responsibility for actions of third parties. In 
other words, if you manufacture a product legally in our economy and it 
sells and someone misuses it and a life is taken with the misuse of 
that product, should we be able to come back through the court to the 
person who produced it when they abided by the law and in no way knew 
that the product would be used with the intent of harming someone?
  That is the basis of individual responsibility in our country and, as 
I said, of centuries of legal precedent based on individual 
responsibility and not the responsibility of the actions of third 
parties. Many judges have already rejected these suits that have been 
brought. Antigun activists are trying to distort tort law by creating 
totally new and expansive theories of liability to win restrictions 
that have been rejected in the legislative process.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CRAIG. I ask unanimous consent that I be yielded Senator Nickles' 
hour under rule XXII.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I thank Senator Nickles for generously 
yielding me his hour. In a postcloture environment, the sponsors of the 
legislation are allowed 2, individual Senators

[[Page 2478]]

are allowed 1. I didn't realize I had already spoken that much today.
  Having said what I have just said, I hope I have laid a clear and 
unambiguous basis to why we are here today and why this legislation is 
sponsored and supported by so many groups across the United States: the 
United States Chamber of Commerce; the United Mine Workers of America; 
National Association of Wholesaler Distributors--and the list goes on--
the National Association of Manufacturers; the Boone and Crockett Club; 
the Buckmasters American Deer Foundation; the Campfire Clubs of 
America; Congressional Sportsmen's Foundation; Council of Wildlife 
Management and Education; Dallas Safari Club; Foundation for North 
American Wild Sheep; Hunting and Shooting Sports Heritage Foundation; 
International Association of Fish and Wildlife Agencies; International 
Hunter Education Association; Izaak Walton League of America; Mule Deer 
Foundation; National Rifle Association; National Shooting Sports 
Foundation; National Trappers Association; National Wild Turkey 
Federation; Pheasants Forever; Pope and Young Club; Quail Unlimited, 
Rocky Mountain Elk Foundation; Ruffed Grouse Society; Safari Club 
International; Texas Wildlife Association; the Wildlife Society; U.S. 
Sportsmen's Alliance; White Tail Unlimited; Wildlife Forever; Wildlife 
Management Institute; the Sports Fishing Association of America; 
America Tort Reform Association; National Association of Independent 
Insurers; National Alliance of American Insurers.
  Here is something I found most interesting. We began to debate it on 
the floor today. Representatives from the International Association of 
Machinists and Aerospace Workers of East Alton, IL. Why? Because many 
of their members are employed in the Savage Arms Company in Westfield, 
MA, where they have already lost some 340 jobs over the last few years 
because that arms company has been so weakened by some of these 
lawsuits. They have had to pay out since 1999 over $425,000 as the cost 
of being at court with some of these lawsuits.
  They are obviously concerned about their jobs. Somebody scoffed a bit 
this afternoon that I am standing here talking about jobs, that this is 
some kind of a jobs bill. It is just that. These industries are at risk 
today. They are not huge, deep-pocket industries. If we put every gun 
manufacturer in this country all together, they would make up, in total 
assets, less than a Fortune 500 company. So they are extremely 
concerned.
  The aerospace workers in Waltham, MA, in Chicopee, MA, along with 
Westfield, MA, the United Mine Workers, again the United Steelworkers 
from Gainseville, FL--all of them have spoken to it. The United Auto 
Workers have employees at the Colt plant in Newington, CT. Today they 
say, and I read from their letter:

       We have 383 members from the Colt workforce. By comparison, 
     about 5 years ago, we had over 600 Colt workers who were 
     members of our local. Our members built the finest small arms 
     in the world, including M-4 carbines, M-16 rifles, and M-203 
     grenade launchers.

  Obviously, those are not civilian weapons, they are military weapons. 
Those are the kinds of tools that our men and women use in Iraq today 
in defense of themselves and in defense of our freedoms. Many of them 
provide the U.S. military and law enforcement. Our law enforcement 
people carry, in most instances, American firearms at their side.
  Do we really want, by forcing these industries out of business, 
Chinese or Yugoslavian or Hungarian firearms to be packed by our 
military? Some would say: Senator Craig, you are just exaggerating. No, 
I am not. If ever one of these frivolous lawsuits would find root and 
grow, the kinds of millions of dollars in potential settlement for an 
argument that a criminal act caused by a third party was ultimately the 
result of an individual manufacturer who operated in a legal way could 
easily put them out of business because they simply do not have the 
kind of depth that, for example, the tobacco industry had years ago 
when these kinds of lawsuits began to be won against that industry.
  Others have been tried in a variety of industries, but there is a 
reality, and that is why unions are now stepping forward as strong 
supporters of this legislation saying: Wait a moment, enough is enough. 
As long as our companies are legal and responsible and producing 
quality products, leave us alone, unless we act in a criminal fashion 
or in violation of Federal law in this country.
  I cannot blame them for asking it. I believe they should ask it, and 
I believe we ought to grant that right. That is what S. 1805 does.
  There are a good many issues we will be discussing over the course of 
this debate. My guess is there will be a variety of amendments offered. 
I find it interesting that this debate gets us to where we are today.
  Let me cite something that is interesting, and I will bring some 
charts to the Chamber probably within the next day. Here is a question 
asked by the political studies at Southern Methodist University and the 
Zogby poll people in examining the differences in thinking between 
people who lived in the States who voted for George Bush in 2000, the 
red States, and those who voted for Al Gore, the blue States. Think red 
and blue here for a moment. We all saw those maps after the election, 
so we begin to think in reds and blues.
  Here was the question asked by the Zogby poll people. I don't think 
you would call Zogby a conservative pollster. He is either center left 
or is certainly viewed by most as not being conservative. Let me stop 
there.
  Here is a question asked by the Zogby pollster:

       Do you agree or disagree that American firearm 
     manufacturers who sell a legal product that is not defective 
     should be allowed to be sued if a criminal uses their product 
     in a crime?

  The answer came back showing a phenomenal result. Opposition in the 
States that voted for President Bush, the red States, was 74 percent. 
In other words, 74 percent said that gun manufacturers that operate in 
legal ways ought to be protected. And in Al Gore States, 72 percent, a 
2-percent difference. One could almost say that a vast majority of 
Americans agree with the essence and the principles of S. 1805. I found 
that very interesting.
  Interestingly, across the board, those most strongly opposed to these 
lawsuits against the firearms industry are currently members of the 
military and their families.
  There has been a lot of talk about our military these days because we 
have phenomenally brave men and women standing in harm's way in Iraq, 
Afghanistan, and other parts of the world. Our military said: We oppose 
frivolous lawsuits of our gun manufacturers by 83 percent. That was a 
Zogby poll taken earlier this year of 1,200 voters nationwide. So I 
find it interesting that opposition occurs to the very narrow approach 
we have taken when all of these large numbers begin to appear.
  Zogby also asked this question:

       Which of the following two statements regarding gun control 
     comes closer to your opinion? Statement 1: There needs to be 
     new and tougher gun law legislation to help in the fight 
     against gun crime. Statement No. 2: There are enough laws on 
     the books. What is needed is better enforcement of current 
     laws regarding gun control.

  By a better than 2-to-1 margin, 66 to 31, voters nationwide agreed on 
statement 2; that is, there are enough laws on the books. What is 
needed is better enforcement of current laws regarding gun control.
  Overwhelmingly, Americans are now speaking out very clearly on gun 
issues. They are also overwhelmingly speaking out against frivolous 
lawsuits of the kind that we have seen now launched against this 
industry. Some 30-plus have been filed. Some are still pending. Some 
are on appeal. Some have already been thrown out by judges.
  That is why we are here today. It is time that Congress stands up and 
speaks to clarify and disallow the gaming of the system, if you will, 
by some who want to line their pockets first and, oh, if there is a 
little bit left, maybe the victim or at least the person in the name 
the suit was brought would gain some benefit, but large compensation to 
those who have a license to

[[Page 2479]]

argue before the courts of the land. That is the reality of what we are 
dealing with.
  I close by saying that we do not block lawsuits that are responsible, 
that are within the law as we see it today and that we understand have 
a legitimacy because some manufacturer or some dealer acted beyond and 
outside the law in a criminal fashion that causes us to suggest that 
their misaction means they ought to pay the price for that misaction 
because someone else paid dearly by the use of that firearm.
  Those are the fundamental issues before us in this debate, and I 
think it is important we have these votes. I hope within the next few 
minutes or within the hour we will have an agreement that allows us to 
move forward and possibly go to an amendment tonight, and then we will 
be back tomorrow for the balance of at least Thursday dealing with 
other critical votes on this issue.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REED. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Collins). Without objection, it is so 
ordered.
  Mr. REED. Madam President, I ask unanimous consent, under rule XXII, 
that Senator Sarbanes' hour be yielded to me as manager on the 
Democratic side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Madam President, may I inquire as to how much time is 
remaining overall?
  The PRESIDING OFFICER. The Chair informs the Senator that there are 
24\1/2\ hours remaining.
  Mr. REED. Madam President, how much time is reserved for the 
Democratic side?
  The PRESIDING OFFICER. The Senator has 82 minutes remaining.
  Mr. REED. I yield the floor, retaining my time, and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. BINGAMAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Madam President, I ask unanimous consent that I be 
allowed to speak for up to 15 minutes as in morning business.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator is recognized.


                      Advanced Technology Program

  Mr. BINGAMAN. Madam President, right before the last recess I came to 
the floor to address the need for a revitalized science and technology 
policy in the country. One example that I gave of the current 
administration's inattention to science and technology and high-wage 
job creation was the proposal in the budget that we received a couple 
weeks ago to eliminate the Advanced Technology Program, or ATP, in the 
Department of Commerce. This is in the President's fiscal year 2005 
budget request.
  In my view--as I stated it then; and I want to repeat it now--
eliminating the Advanced Technology Program makes no sense. Even the 
administration's own budget justification, which clearly praises the 
program, makes clear that the program is valuable.
  The Advanced Technology Program has been a constant target over the 
years of those who would like to kill the program for philosophical 
reasons. But I believe those of us in Congress need to make decisions 
about Federal programs on a logical basis and on the basis of the good 
that those programs are doing for the people we represent.
  So I believe we should examine the Advanced Technology Program by 
asking two fundamental questions. First, should our Government be 
sponsoring an Advanced Technology Program at all? And second, is the 
Advanced Technology Program we are talking about an effective program 
for advancing technology development in our country?
  In discussing the need for a Government role, a basic principle with 
which nearly everyone would agree is that a Government role makes sense 
when there is a market failure of some sort. When it comes to advanced 
technology, there is ample empirical evidence of a critical gap between 
the point at which Federal support for basic research ends and the 
point at which private capital market support of product development 
begins.
  Now, let me try to illustrate that by referencing this chart. This 
chart is called the ``Valley of Death'' just to try to wake up my 
colleagues to the fact that this is an important issue. Here, looking 
at this vertical axis, we are showing the invested money. Along the 
horizontal axis, we are showing the various stages of developing a 
technology-based product for use.
  The Government does invest a fair amount of money in basic research. 
That is shown over here at the left, in the beginning stages of 
developing a product or developing a technology. Here we show labs and 
universities. Our Federal Government does invest a substantial amount 
in that area, and that is certainly commendable. Of course, many of my 
colleagues would argue that we do not invest enough there, and I would 
agree with that, but that is a subject for another day.
  Industry invests most of its research and development dollars at the 
other end of this development continuum and invests those funds on 
commercializing short-term, low-risk, reliably profitable products, and 
then making incremental improvements on those products which they are 
fairly confident they can make a return on in the market.
  In between these two stages of the research and development process, 
we have what many in the industry call the ``Valley of Death.'' That is 
the gap where our private capital markets fail to invest applied 
research dollars to create preproduct, so-called platform technologies. 
This market failure occurs because such generic technologies are too 
expensive or they are too risky for industry to develop on its own.
  At the same time, it is precisely these generic, platform 
technologies that are the seed corn for new products, and in many cases 
new market categories. The benefits to industry generally and to our 
national economy far outweigh the costs of developing such 
technologies.
  In the case of defense technologies, the Federal Government is the 
ultimate customer, and programs such as the Defense Advanced Research 
Projects Agency--the work that they fund in DARPA in the Defense 
Department--plays an important partnering role with defense contractors 
and high-technology firms.
  But for technologies with predominantly civilian applications, the 
Federal Government does not have the strong customer stake in 
developing specific technologies. So filling in this funding gap in the 
``Valley of Death'' is precisely the role that the Advanced Technology 
Program plays for civilian technology.
  That brings me to the second question that I outlined earlier. That 
is, is this advanced technology program an effective program for 
promoting these new platform technologies? Some in the Congress have 
reacted over the years to the ATP as if it were some sort of Federal 
program to help Gillette make a five-bladed razor or to help Microsoft 
write Windows 2006. This is not an accurate description of the ATP by 
any stretch.
  Let me give a few examples of actual ways in which the Advanced 
Technology Program has succeeded in bridging the ``Valley of Death'' 
for U.S. industries with a resulting positive impact on our economy and 
our global competitiveness.
  In 1991, the Council on Competitiveness characterized the U.S. 
printed wiring board industry as losing badly or lost. That was their 
description. By this they meant the U.S. was not likely to have a 
presence in that industry within 5 years. It attracted little private 
venture funding. Only a handful of

[[Page 2480]]

the 700 firms in the industry had the capability to undertake advanced 
research. Through the ATP, a new joint venture between the printed 
wiring board industry as a whole and the Government was formed that 
would not have occurred otherwise. The new manufacturing technologies 
that were developed in the joint venture yielded an estimated cost 
savings for industry in excess of $35 million.
  Another example: In the past, U.S. car makers tolerated dimensional 
variations of up to 5 or 6 millimeters. That is a level that often 
complicated the assembly process. It required custom manual reworking, 
and compromised vehicle fit and finish, as it was referred to in the 
industry. An advanced technology project was put together with the U.S. 
auto industry, reducing this variation to less than 2.5 millimeters by 
inventing an array of new technologies. This one project is credited 
with increasing the U.S. gross domestic product by over $200 million 
and creating 1,400 jobs. In short, empirical research demonstrates this 
project helped increase the demand for domestically produced vehicles 
and helped domestic producers stem the loss of market share to offshore 
manufacturers.
  The Advanced Technology Program has also been called the godfather of 
the DNA diagnostic tool industry. That is another example which clearly 
my colleagues should look into before they follow the administration's 
recommendation and try to terminate this program.
  The Advanced Technology Program was making investments in 
nanotechnology long before it became a household word, along with 
investments in homeland security and bringing fuel cells and solar 
cells and microturbines to the marketplace. In 2003, the White House 
sponsored a fuel cell demonstration and the President tested a long-
life mobile phone. Let me put another chart up here. You might 
recognize this photo. The President was testing a long-life mobile 
phone powered by advanced fuel cell technology. Without the Advanced 
Technology Program, MTI microfuel cells would not have been able to 
develop this breakthrough technology to power this very phone. So that 
is another example.
  As I have tried to make amply clear, there are many examples of ATP 
successes. There are certainly also other examples where ATP projects 
have not been successful. That is the nature of a high-risk, high-
payoff research program. But let's put the successes and the failures 
in the overall context.
  The total cost of ATP funding to date has been about $2.1 billion. 
That is over the life of that program. All told, the preliminary 
results of a 2003 ATP survey of over 350 companies indicates the actual 
economic value resulting from ATP joint ventures exceeds $7.5 billion. 
The benefits from just a few projects analyzed to date are projected to 
exceed $17 billion, when those platform technologies are fully 
exploited by the industries involved.
  ATP has also been the subject of a recent overall assessment by the 
National Academies of Science and Engineering, and the core conclusions 
of this 2001 study speak strongly both to the success of the program 
and to the generic focus of the program. The national academies 
concluded the ATP was an effective partnership program at the generic 
technology level. The academies specifically found the selection 
criteria applied by the ATP enabled it to meet broad national needs and 
to help ensure the benefits of successful awards extend across firms 
and industries. The national academies have also found the ATP peer 
review of applicants for both technical feasibility and commercial 
potential was effective in targeting promising new technologies that 
were unlikely to have been funded through the normal operation of the 
capital markets.
  I could go on and on about the conclusions of the national academies 
study. Let me just say the reality is industry will not fill the void 
the President would create if his budget proposal to kill this Advanced 
Technology Program were agreed to. Given industry's increased emphasis 
on short-term applied R&D and consequently reduced emphasis on early 
phase technology research, the elimination of the Advanced Technology 
Program would simply trigger the further erosion of U.S. technology 
leadership and lead to even greater loss of high-technology, high-wage 
jobs in the future.
  I would like to end with a quote from David Morgenthaler, former 
president of the National Venture Capital Association. The members of 
the National Venture Capital Association account for around 80 percent 
of the venture investment taking place in the United States today. 
David Morgenthaler says:

       It does seem that early stage help by the government in 
     developing platform technologies and financing scientific 
     discoveries is directed exactly at the areas where 
     institutional venture capitalists cannot and will not go.

  When experts in venture capital and leaders in industry and our 
National Academies of Science and Engineering all agree the Advanced 
Technology Program plays a unique and valuable role in supporting our 
high technology competitiveness, we ought to pay attention.
  I hope all my colleagues will join me in resisting the unwise 
proposal which we have been given by the President to terminate the 
Advanced Technology Program. ATP has demonstrably contributed to 
maintaining our manufacturing strength. A strong and well-funded 
Advanced Technology Program will help the United States remain 
competitive in high tech manufacturing in the future. Instead of ending 
this program, we should look for ways to duplicate its strengths in 
other civilian technology areas such as energy and environment and 
homeland defense.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Madam President, returning to the gun immunity bill 
that is being presented, this is legislation that is being bullied 
through the Congress.
  I have been here a long time, now going into my 20th year. This is 
one of the most outrageous pieces of legislation I have ever seen. We 
have never seen such a complete sellout. This is like a fire sale to a 
special interest lobby.
  The bill is absolutely a free pass. It says to the gun industry: Do 
anything you want, and you have no one who can punish you by going to 
our court system, established effectively by our Constitution. They can 
do whatever they want, no matter how negligent, reckless, or 
irresponsible.
  Of all the people in society to provide special protections to, why 
in the world would we give immunity from redress to this industry?
  This immunity bill says even reckless behavior--forget about 
negligence. Negligence says I didn't mean to do it, but I didn't check 
on the process. Reckless behavior could be deliberate. There could be 
reckless behavior in the manufacture, sale, or distribution of guns. No 
matter how destructive the result is to life and limb of innocent 
people, the victims of that conduct cannot hold you accountable. It 
just does not make sense.
  We hear this claim from our friends on the other side about 
``frivolous lawsuits'' is how they describe it. Frivolous lawsuits--
lawsuits that, frankly, are far from frivolous because the damage is 
beyond description when a family loses a child, a father, a brother, a 
mother, or a sister, or some child is permanently injured and cannot 
function normally. Frivolous? I don't call that frivolous. These are 
valid claims of wrongdoing by an industry that puts profit ahead of 
human life, and we can't let them go without consequence.
  Let us ask the gun victims if their lawsuits are frivolous. Ask those 
who have lost loved ones at the hands of the DC area snipers just over 
a year ago. And talking about the DC snipers, they were prohibited by 
law from buying guns. Under law, they could not sell guns to Lee Malvo. 
He walked into a gun shop and walked out with a sniper rifle. A sniper 
rifle is a pretty big piece of equipment.
  I invite my colleagues to look at this image. This chart says they 
lost 237 guns; 237 guns for which they have no responsibility to 
account. They said:

[[Page 2481]]

Gee whiz, how do you like that, we lost all these lethal weapons that 
may have just kind of walked out or fallen down a crack in the floor 
someplace. It is outrageous--including one of those weapons that wound 
up in the hands of those who committed these atrocities, Lee Malvo and 
John Muhammad.
  This is a picture of a gun shop that has become all too familiar. It 
is called the Bull's Eye Shooter Supply. They lost the guns.
  In the wake of the sniper case, we now know that in addition to 
losing hundreds of guns from their inventory, this gun shop cannot 
locate the firearms sales records they are required by law to keep to 
help police solve crimes. Those records that were recovered showed that 
Bull's Eye frequently sold numerous guns to individual buyers, a sure 
sign of phony straw purchases. But obviously this rogue gun store 
looked the other way.
  According to ATF records, between 1997 and 2001, guns sold by Bull's 
Eye were involved in at least 52 crimes, including homicides, 
kidnappings, and assaults. Guns in 52 crimes were traced back to this 
one gunshop.
  Under this gun immunity bill, Bull's Eye gets a free pass. They would 
not be accountable to victims of their negligence, and it is a 
despicable proposal.
  DC sniper Lee Malvo could not have legally purchased a Bushmaster 
assault weapon from Bull's Eye. He was too young. But he walked into 
the Bull's Eye store in broad daylight and walked out in a short time 
with a Bushmaster XM-15. That is the weapon he and John Muhammad used 
to murder and injure their victims.
  I ask my colleagues to take a look. How could he get behind the 
counter, walk out with a weapon, and not be noticed? It was captured on 
film, but they didn't see it. What an odd coincidence that is.
  It is outrageous. It is an insult to the intelligence of anyone who 
looks at this picture to know this weapon could not have disappeared 
without being noticed. Look at the size of it. It tells the story. But 
then I guess what is being asked for is sympathy for this gun shop, 
this place that let the murder weapon out of its sight and into the 
hands of these madmen who shot people at random.
  Let them get away with that, with no repercussion, no lawsuits: You 
injured my child, you injured my husband, you injured my wife? People 
were shot sitting alongside their mates, and we want to protect them? 
What do we have to protect them for? I don't understand it.
  To me there is an element of curiosity here that just does not 
register. I don't understand the wailing and weeping about how to 
protect these guys, these dispensers of murder. It is awful. Yet we 
hear the case: Gee whiz, if you had an automobile and a drunk driver 
drove it and killed somebody, why should the automobile company be 
responsible? We saw that once.
  Ford Motor Company made the Pinto. When it was struck from the rear, 
it would catch fire. We had people testify. They were so disfigured, it 
was painful to look at them. Imagine what it felt like to be one of 
them--so disfigured.
  They went to the Ford Motor Company and said: Change the design. Ford 
had a board meeting supposedly in which they said: Change the design? 
Do you know what that is going to cost us? The heck with it. Let's pay 
the damages that come from lawsuits. That is the way it goes sometimes.
  The automobile is not intended to be a lethal weapon, and we lose a 
lot more from fewer of these gun manufacturers every year than we do 
manufacturers of cars. We lose over 28,000 people a year, 11,000 of 
them homicides, the rest suicides, accidents. That is what happens. We 
have millions of cars on the road, and we do not have much more of a 
mortality rate with those cars than we have with these weapons. But we 
do not try to protect the automobile industry.
  We do not try to protect the aviation industry if there is negligence 
in an air crash. You can bet people have a right and do take advantage 
of the right to get some redress. They don't want the money, for gosh 
sakes. They do not want any other families to have to suffer the same 
humiliating loss they experienced.
  If anyone proposed that we go ahead and say to the airlines: Look, 
tell you what, for reckless behavior and one of those planes goes down 
with 200, 400 people on it, we know you really didn't intend to do 
that, so, therefore, you ought to be excused. We are not going to 
excuse them, and we should not excuse the gun industry, the people who 
manufacture these weapons in any form, any shape, disguises for assault 
weapons that say this really isn't an assault weapon. It passes the 
specifications test, except if you make an adjustment here in the 
cartridge carrier or there, it becomes, effectively, an assault weapon. 
No, we are saying, no, we are not going to punish you for that. Go 
ahead, be careful because people may not like you, but we are not going 
to punish you for it.
  That is the situation in which we find ourselves.
  Do we really believe that in this situation these weapons were lost 
or stolen from this store? It is ludicrous. So we should not pretend we 
do not know what really happened. What we are doing is closing our eyes 
to responsible behavior throughout our Nation. It is obvious they sold 
the Bushmaster to Malvo under the table, or however he got it. It is a 
pathetic and irresponsible recognition we are giving these people.
  Should Bull's Eye be held accountable for their outrageous actions 
that resulted in the death of innocent people? The sponsors of this 
bill say, no, they should not pay for approximately a dozen deaths. The 
sponsors of this bill say, no, this outlet should not be punished for 
murder; that, after all, they are okay. They sell things that kill 
people or close their eyes to the distribution of weapons.
  The sponsors of this bill say, no, if one is negligent, they cannot 
be held accountable. It says if they are reckless, they cannot be held 
accountable.
  The bottom line is there are many victims with valid legal claims who 
will have their lawsuits wiped out. It is outrageous.
  Today we were visited by a policeman from my home State, the town of 
Orange, NJ. He was shot in an exchange of fire with an assailant. He 
has a lawsuit in place. He can no longer work at his job. We are 
saying, too bad. Why were you standing in the way of that bullet when 
it came? Essentially that is what we are saying: Why did you get in the 
way of the guy who was going to pull the trigger? You should not have 
done that. They should not be punished for their complicity by getting 
a gun for this would-be murderer.
  This bill before us tells Bull's Eye and their cronies in the 
business, keep up the good work; do not worry about it; in the Senate, 
we are going to take care of you. We are going to immunize them from 
wrongdoing.
  Why on God's Earth do they want to immunize these people? I do not 
understand it. I have seen pretenses at logic that said, well, we will 
have no gun industry to supply our Army. Baloney. Everybody knows that 
is a phony argument. They will get their weapons made. We can protect 
those who make arms for the military and we can make sure they are 
under better care than we see now.
  The snipers who did the killing wreaked havoc on our society and now 
we want to reward the gun dealer responsible for illegally giving them 
their killing weapon with immunity from civil lawsuits. This is absurd.
  This Senate is about to make these sniper victims and their families 
victims a second time. After all they have gone through and that they 
are going through, we are going to pass a bill to take away their 
fundamental legal rights. It is reprehensible. There are so many other 
people who are going to be denied justice by this bill.
  I want to take a moment to tell the Senate about two brave police 
officers, one of whom I mentioned earlier, who are going to be 
victimized by this bill, Ken McGuire and David Lemongello. They are two 
police officers from Orange, NJ, who were shot and seriously wounded by 
a criminal who obtained his gun through the negligence of a gun 
manufacturer and gun dealer in the State of West Virginia. The criminal 
who shot them was barred from legally

[[Page 2482]]

buying guns, but he was able to obtain these weapons from a straw 
purchaser who was sold 12 guns by a West Virginia gun dealer in a 
single transaction.
  This gun dealer completed the sales in spite of the obvious signs 
that the purchaser was not buying the guns for himself. The gun dealer 
admitted he was suspicious of the transaction but turned the other way. 
Then less than 6 months later, Officers McGuire and Lemongello were 
shot by one of those weapons.
  Is the police officers' lawsuit against the gun dealer frivolous? A 
West Virginia judge ruled the officers' claims are supported by West 
Virginia negligence and public nuisance law and that the officers' case 
should proceed against the dealer as well as the manufacturer of the 
gun who imposed no requirements on its dealers to cut large volume 
sales.
  If this gun immunity bill is passed, the rights of these two brave 
police officers are abolished. To make matters worse, it will allow 
other gun dealers to look the other way and complete suspicious sales 
because, well, there are not any consequences; we cannot be sued for 
our negligence.
  I want my colleagues to know Officer Ken McGuire is in the Capitol 
today. He is here to ask Senators not to take his rights away, and I 
ask my colleagues to give him a moment of their time if he approaches 
you.
  These lawsuits are the only real way to hold these rogue dealers 
accountable because current laws regulating dealers are a joke. The ATF 
is restricted to only one announced inspection per year.
  In reference to Bull's Eye, I heard the Senator from Idaho say the 
shop is shut down now. He is very careful with the things he said, but 
I think he made a mistake. It just is not true. Bull's Eye took 
advantage of the weak gun dealer laws and merely transferred its 
license. They are very much in business. My staff called Bull's Eye 
today and they said they are open until 7 p.m. It does not sound to me 
as though they are closed. So if someone from the Senate wants to make 
a quick trip over there today to pick up an assault weapon, they have 
until 7 Pacific time to do so.
  There are a host of other cases that would be affected if this bill 
is passed. Supporters of this bill will be trampling the rights of 
innocent victims who only want their day in court, to which I think 
they are entitled.
  The supporters of this bill claim the lawsuits against the gun 
industry are frivolous. Frivolous? Ask Denise Johnson whether her 
lawsuit is frivolous. She lost her husband at the hands of the DC area 
snipers. On the morning of October 22, 2002, Denise Johnson said 
goodbye to her husband Conrad with her usual ``be careful.'' Neither he 
nor her children had any idea this would be their last words to their 
husband and father.
  This 35-year-old bus driver was shot on October 22 in Silver Spring, 
MD. He was standing at the top step of his empty bus when he was hit. 
He was killed instantly by the Bushmaster portrayed here that Bull's 
Eye ``lost'' to Lee Malvo.
  Some have the impression it is only the DC sniper victims and 
Officers McGuire and Lemongello from New Jersey who would have lawsuits 
blocked by this bill. Unfortunately, there are many other victims of 
gun violence with valid cases who would have their suits dismissed. I 
ask the sponsors why do they want to do that? Why? Loss of a family 
member? Perhaps it is the principal breadwinner in the family. Should 
we have the family suffer from now newly found poverty and doing 
without the capacity to pay the rent, perhaps be evicted from their 
homes? Why do we want to punish them a second time? Was it not enough 
they suffered like that the first time? We want to cut away from them 
their right to have redress for what took place.
  There is Tenille Jefferson. Her 7-year-old son was killed by another 
child with a .44 caliber rifle. This tragic shooting occurred because 
the gun ended up in the streets after being negligently sold through a 
gun dealer to an illegal drug user and gun trafficker.
  Then there is Sherilyn Byrdsong who lost her husband, former college 
basketball coach Rick Byrdsong, when he was shot and killed as he 
walked with their children in Evanston, IL. The crime was committed by 
a white supremacist, Benjamin Smith, who targeted minorities in a 
shooting spree through Illinois and Indiana. Even though Smith was 
prohibited from buying guns, he was able to obtain a gun because of the 
actions of a reckless gun dealer.
  This reckless dealer sold one gun trafficker over 70 handguns in less 
than 2 years, almost all of them Saturday night specials, commonly used 
by criminals. Mrs. Byrdsong's lawsuit is pending in a State court in 
Chicago. Other victims of this same shooter have joined the lawsuit. If 
this bill passes, their lawsuits are wiped out. I cannot understand why 
we would want to do that in this, the Capitol of this Government of our 
great country. I can't understand why we are bent on taking away 
people's rights and making them suffer because of a special interest 
group that has a special reach to those in this Senate and the House 
who say: We have to take care of this industry. This is an essential 
industry. We want this. Maybe we can build this into a major industry, 
make it bigger than it is, sell more guns.
  That is hardly a way to see a productive existence in a society that 
essentially has respect for the law.
  The Reverend Stephen Anderson, a minister shot during this spree I 
was talking about, on his way to join his family in a Fourth of July 
celebration, would have his lawsuit dismissed. Steven Kuo, a graduate 
student at the University of Illinois, would have his rights taken 
away. Hillel Goldstein, one of several Orthodox Jews shot when walking 
home from temple services, would have his family's lawsuit terminated.
  There are other cases that would be dismissed--the parents of 15-
year-old Kenzo Dix, who was shot and killed unintentionally by a 14-
year-old friend because the gun lacked well-known safety features. The 
boy thought his father's pistol was unloaded as he had emptied the 
magazine. Had the gun included an indicator that alerted him that a 
round was in the chamber, or an integral lock that would have prevented 
him from firing, Kenzo would not have been killed. But Kenzo's parents' 
case would be terminated by this bill.
  The family of Joan Moore, who was shot and killed by a mentally 
deranged man in the town of Belle, WV, would have their suit dismissed. 
Her family brought suit for negligence against the gun dealer who sold 
a 9 mm rifle to Moore's killer, 18-year-old Robert Copen. Mr. Copen 
stood in the gun shop's parking lot all day in plain sight, smoking 
marijuana before he entered the store. He apparently acted so oddly 
while in the store that an employee asked his supervisor if Copen 
should be trusted with a gun. Management told the employee to go ahead 
and make the sale anyway.
  This gun dealer was clearly negligent. But Mrs. Moore's family would 
lose their rights under this bill.
  This Senate looks as if it wants to administer a second punishment 
because the first punishment was not severe enough. It is shocking to 
believe this could take place.
  Since when is Congress in the business of rewarding the worst in our 
society? Why would we want to send a message that says: Circumvent the 
law, put our families in danger, and we are going to protect you?
  The reality is that the gun industry engages frequently in improper 
conduct with deadly consequences. We have seen many examples of this. 
Corrupt dealers who frequently sell to criminals would be immune. Straw 
purchasers who work with rogue gun dealers to obtain guns for people 
who are not eligible to buy guns would be immune. Dealers who engage in 
large volume sales, such as the Illinois dealer who sold 60 Saturday 
night special handguns to one customer, would be immune.
  And, of course, there is the problem of gun shows, where criminals 
and terrorists can buy guns without background checks.

[[Page 2483]]

  As many here know, the Senate passed my gun show amendment with the 
help of Vice President Gore, a 50-50 tie in 1999. But the House 
Republicans killed the provision in conference. They were not willing 
to shut down dealers who are not required to get any data about a 
purchaser--no names, no addresses, no pictures, nothing, not even a 
fingerprint.
  If the NRA immunity bill is signed into law--and I call it the NRA 
immunity bill deliberately because that is who we are servicing today. 
We are not servicing this list of people who had the punishment we have 
seen, punishment that should never be permitted to be put upon a 
family, a loss of a child, a loss of a husband, a loss of a wife or 
mother. We should not do that. But if the NRA immunity bill is signed 
into law, victims of industry recklessness will be denied their day in 
court.
  It doesn't make sense. It doesn't make sense to me, and I am sure it 
doesn't make sense to people across the country. And I hope they are 
listening. People across the country have to understand what we are 
doing. We are protecting an industry that provided the murder weapon to 
kill lots of people. Why in the world do we want to protect those 
people? If your behavior is bad, no matter what the product is, if it 
is a toy, if it is a crib or otherwise, and it is made improperly, you 
pay a price for it. I come from a State where pharmaceutical 
manufacturers are a giant industry. Let a pharmaceutical manufacturer 
put the wrong ingredient in the capsule which hurts somebody's health, 
they go to court. They are very conscious of that. They are very much 
afraid of the repercussions of a lawsuit. That is what makes people pay 
attention. It does it in that industry. It does it in all other 
industries.
  But we want to exempt this one industry for their noble behavior, for 
their concern for human life, for their concern for jobs, I heard 
earlier. The Senator from Illinois scoffed at it and said: Oh, I didn't 
know we were talking about a jobs bill.
  Why don't we make hand grenades and distribute them freely? You could 
get people to do that.
  This is ridiculous. Unfortunately, it is not about common sense but, 
rather, it is about dollars and cents. It is about political support on 
the outside. It is about nasty mail campaigns. It is about the 
deterioration of common sense and collegiality. It says: Look, I don't 
owe my constituents all that. What I do owe is I owe some special 
interest friends of mine who helped author the legislation in the House 
that applies to this. We know the role that the NRA plays in financing 
political campaigns. It seems as if it is paying off for them right 
now.
  Thankfully, there are still people here who see their responsibility 
differently, who will stand up for principle, who will do all they can 
to prevent this unconscionable piece of legislation from passing. We 
have friends on both sides of the aisle, Democrats and Republicans. 
This isn't the special property, the unique property of Republicans. It 
is people who are not looking clearly at the problem, who are not 
willing to say: Hey, I can catch a little abuse from the NRA and its 
membership and its friends.
  I took a lot of it in my previous term in the Senate. But we did take 
gun permits away from spousal abusers. Some 40-plus thousand were 
denied gun permits because of a piece of legislation we passed. Does 
anybody regret that fact? I wonder, if we asked the question, do you, 
sir/ma'am, regret the fact that we have taken away those permits from 
those spousal abusers, permission to buy guns, permits.
  I wonder if you feel badly about that, and about other things that 
try to curb gun violence.
  This bill takes away a critical tool in the fight to eliminate gun 
violence. It is comparable, in my view, to taking away medication from 
doctors trying to treat a deadly disease, perhaps to prevent death, or 
immobility, or mental fatigue in a person without proper medication. 
Why do we not want to prevent the possibility that someone can be 
permanently injured or incapacitated?
  What are the symptoms of this disease? In the year 2000, there were 
more than 28,000 firearm-related deaths in the United States. About 
11,000 were homicides. These deaths and injuries cost an estimated $2.3 
billion a year in lifetime medical expenses alone, much of which is 
borne by the U.S. taxpayer. The total societal cost of firearms is much 
higher--an estimated $100 billion a year--and the cost to families 
cannot be measured.
  But we know this: The bill on the floor today is a direct attack on 
people who have already suffered a tragedy. This bill is an 
embarrassment to the Senate, to our Government, and our Nation, and it 
ought not to be permitted to go forward.
  I ask my colleagues one thing. Before you cast your vote on this 
bill, spend a second thinking about a child's face who learns that 
daddy is dead, or about a father's face when he learns that his child 
is dead--killed not by nature or something that perhaps could not be 
prevented. Much of this can be prevented. Think about these victims. 
Give them their fair consideration before you victimize them once 
again.
  I hate to think that this wonderful body in which I am privileged to 
serve would want to inflict punishment on those who have already 
suffered so deeply, or who will suffer so deeply by protecting those 
scoundrels who break the rules with reckless behavior. Imagine what is 
being said--that even if you are reckless, you are going to be 
immunized by this legislation. Negligence is bad; reckless is 
unacceptable under any condition.
  I hope I am talking for the majority of those so we can get a vote 
against this bill.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Idaho.
  Mr. CRAIG. Mr. President, we are hoping in a few moments that we 
might have a unanimous consent request to allow us to get to this bill.
  I will respond only briefly to the Senator from New Jersey and his 
comments because he did suggest that I had implied something that is 
not fact on the floor of the Senate today. I want to make sure the 
record is clear because I don't want in any way to mislead any of my 
colleagues.
  I said that the Bull's Eye gun store was closed. It, in fact, did 
close. The license of the dealer at the time the weapon was stolen was 
jerked. He could no longer conduct the business. He sold the business 
to a new licensed dealer. What the Senator from New Jersey failed to 
recognize is that licenses aren't given to locations; they are given to 
individuals, and those individuals must qualify. A condition of the new 
license also was all new personnel in the gunshop.
  The Senator is accurate in suggesting that he might have called today 
and the gunshop is open under new management and new license and new 
people. The person who I said this morning had lost his license because 
BATF had jerked it and he had to close his business is, in fact, a 
legitimate and valid statement. That did happen. It is also my 
understanding that the criminal investigation is now underway, and that 
BATF is recommending to Justice that they file felony charges against 
this particular dealer. I do not know anything more about the facts. 
But I do know one thing.
  Mr. LAUTENBERG. Will the Senator yield for a question?
  Mr. CRAIG. Let me complete this thought, and I would be happy to 
yield.
  I do know one thing. Lee Malvo himself said: I stole the weapon. That 
is very important. But the Senator suggested--and his words were: Well, 
maybe an under-the-table deal. I do not know that stealing is under the 
table, and the man who pulled the trigger admitted he had stolen the 
weapon. You can imply anything you want. I can't. I have to use factual 
statements given by, in this case, a man who has been apprehended and 
we now believe by all evidence committed that tremendously tragic crime 
and was one of the District of Columbia snipers. That is the reality. I 
believe those are the facts. I believe them to be honest and 
straightforward facts.
  I would be happy to yield to the Senator.
  Mr. LAUTENBERG. I thank the Senator from Idaho.

[[Page 2484]]

  One thing I know is that we often disagree, but I would never accuse 
him of these statements. He is an honorable man. We have our 
differences on things that we ought to be putting into law. But I would 
like, if I may, to correct my friend's impression because not only was 
there a phone which was answered but the now owner of the license is a 
good friend of the former owner.
  If one looks at the pictures that we displayed, the weapon used was a 
pretty sizable piece of equipment. As I remember from what I saw on the 
film shown on television, there was evidence that this Lee Malvo was 
carrying a weapon out of that store. The camera saw it. Certainly it 
could have been negligence. It could have been reckless or maybe the 
gun was paid for by a friend, and with the wink of the eye, out it 
went. But to give this criminal credit for telling the truth is 
something that I--
  Mr. CRAIG. I did yield for the sake of a question and not a comment. 
I would like to reclaim the floor.
  Mr. LAUTENBERG. The Senator is absolutely right. My question was, Did 
the Senator know that the new owner of the license was the friend of 
the former owner?
  Mr. CRAIG. I didn't inquire about friendships or relationships. I 
inquired about the legality of the license that operates the store, and 
whether the store is still in business, and whether the owner who is 
alleged to have mishandled records owns it today; does he operate it. 
The answer is no.
  Let me also add that I appreciate the Senator's logic about the 
stealing of a weapon. Automobiles are stolen from automobile lots and 
the thieves are caught on camera. The last I checked, an automobile is 
substantially larger than a rifle. Is it possible that Lee Malvo picked 
up a gun and walked out of the store? He says he did. He says he did. 
He stole the weapon.
  I am not going to in any way attempt to defend the man who once owned 
the Bull's Eye gunshop. He may be indefensible. He may have violated 
the law. If he did--and he is being investigated for it--S. 1805 does 
not immune him from any of those actions. That is what is important to 
understand as we debate the bill. His acts were criminal. If he is in 
violation of the Federal firearm license, if he has mishandled his 
records, and if he had, in fact, seen a robbery and failed to report 
it, then this man is in trouble because that is the law. We would not 
protect him nor does this bill protect him from that law.
  I yield the floor.
  Mr. REED. Mr. President, we have heard a lot today about the 
exceptions contained in that bill which, arguably, might result in 
liability to someone such as the dealer in the Bull's Eye Shooting 
Gallery store but legal analysis by eminent attorneys suggests they 
would not apply to that particular case.
  Mr. LAUTENBERG. Mr. President, I wonder if I could ask the 
distinguished Senator a question.
  Mr. REED. Yes.
  Mr. LAUTENBERG. I believe the Senator has examined the opinion 
offered by Mr. Lloyd Cutler and others. Is it not their opinion that 
these lawsuits would be obstructed from proceeding as a result of this 
law being put in place?
  Mr. REED. The Senator is accurate. The analysis by eminent attorneys 
looking at this legislation, looking at the exemptions, suggests in the 
case of Bull's Eye that this dealer would not be subject to liability; 
he would be immunized from liability because of this particular bill.
  This is a situation that has to be made very clear to people. We are 
essentially giving this individual an opportunity to walk away from 
serious negligence. I don't think it is appropriate. In fact, I think 
it is unconscionable.
  There is a factual discussion about the status of the Bull's Eye 
Shooting Gallery. My understanding is--and it is close, I think, to 
that of the Senator from Idaho with additional detail--as I understand 
it, the individual who was in fact the owner-operator, Brian Borgelt, 
had his license revoked. He is appealing that revocation in court. That 
is his right. He somehow transferred ownership of the store to someone 
we have been informed is a friend, a colleague, which is also 
permissible under the law. It appears, though, that Mr. Borgelt is 
operating a shooting gallery in the same building, but it does look as 
if this might be an entirely legal transaction.
  The point was raised earlier, and Senator Lautenberg and I have tried 
to clarify, at least there was an impression this store was closed, out 
of business, and not operating. The agreement and the factual accuracy 
as of this point that we both share is the store is operating. The 
individual who owned it is no longer operating it because his license 
has been revoked and he is challenging the revocation.
  Mr. CRAIG. If the Senator will yield, I think that is a valid 
analysis and I certainly did not intend to misportray that.
  Again, let's go back to the law. Are you suing the store if there are 
lawsuits, or are you suing the individual who had the Federal firearms 
license? Is it the physical structure that is liable or is it the 
individual who owned the structure who is liable? We know what the law 
is. It is the individual and not the store.
  I cannot, nor do I, know the details of the relationship. What I do 
know is that he cannot sell firearms today. His license has been 
pulled. That is what the law requires, and a criminal investigation 
proceeds at this moment. I believe that is the essence of the argument.
  Mr. REED. That is an accurate description of the situation but, 
again, the imprecision was whether the store is operating, not who is 
operating it. The individual is not able to operate because he lost his 
license.
  Mr. CRAIG. If the Senator will further yield, I did use the phrase 
``store closed.'' I meant the ownership, as it was; he closed. It 
reopened. Whether it was 24 hours or 48 hours, he could no longer 
operate it when his license was revoked. We understood he sold it to a 
new operator who is licensed.
  Mr. REED. I think it is important to clarify that because it has been 
a matter of factual dispute.
  The other issue which has to be clarified is the applicability of 
this legislation to that original owner-operator who had been accused 
of a laundry list of inappropriate actions. I had the opportunity to 
review some of them today.
  With respect to the owner of the Bull's Eye Shooting Gallery at the 
time the Malvo gun was obtained, under his ownership and under his 
license, 238 guns were missing. Many guns between 1997 and 2001 found 
their way into crime scenes. A remarkable record of guns found their 
way from a licensed dealer to crime scenes. Many found themselves to 
crime scenes in a rapid period of time. The nomenclature is ``time to 
crime.'' Time to crime was remarkably narrow. The time to crime was 
less than 3 years in more than 70 percent of Bull's Eye cases between 
1997 and 2001, suggesting this organization was a conduit for obtaining 
weapons for crimes.
  There were large numbers of multiple firearms sales. Sometimes he 
would sell as many as 10 guns at a time. There were numerous ATF 
citations, at least 15 times between 1997 and 2001. That is the record 
of the individual whose license was suspended, finally, by the ATF.
  But the issue is, with respect to this individual, if we pass this 
legislation, will he be immunized after this record of negligence, 
recklessness, irrational responsibility? Most people would say that is 
the record. The exemption provided by paragraph (5)(A)(iii) says, in 
effect, the action would be preserved in which a manufacturer or seller 
of a qualified product violated a State or Federal statute applicable 
to the sale or marketing of the product and the violation was a 
proximate cause of harm for which relief is sought.
  Two elements: You have to violate Federal and State statutes; and 
that violation was the proximate cause of the damage to the individual. 
According to the well-settled tort law principle, proximate cause 
requires that the defendant's conduct was a substantial factor in 
bringing about the harm suffered by the plaintiff.

[[Page 2485]]

  Remember, two elements: State and Federal statutes violated, and that 
violation being a proximate cause.
  Here is the difficulty with respect to the situation at the Bull's 
Eye Shooting Gallery. Despite the evidence we have that there were 
certain violations, many of them record keeping, it is going to be 
virtually impossible that the plaintiffs in the sniper case will be 
able to show that Bull's Eye violated any State or Federal statute with 
respect to the particular gun that was used by the snipers or that any 
such statutory violation was a proximate cause of the sniper attacks.
  The evidence concerning the acquisition of the snipers' weapon 
supports Bull's Eye's claim that Lee Boyd Malvo shoplifted the gun. 
That is not in dispute. Indeed, after his arrest, I believe Malvo 
admitted he shoplifted the gun from Bull's Eye. Although the plaintiffs 
or the family of the plaintiffs claim that Bull's Eye's lax security 
practice permitted Malvo to get the weapon, that would not establish a 
violation of any Federal or State statute.
  Again, a reading of this exception would say that you have to show, 
first, a Federal or State statute was violated, and the violation of 
that statute was the proximate cause was reading to injury. It is 
virtually impossible in this case.
  What is happening in all of these exceptions that are built into the 
bill is, this is a trapdoor, if you will. We have a general prohibition 
against any type of suit against these individuals, these dealers, 
these manufacturers, or trade associations; and then we have 
exceptions. And they point out within the exceptions, artfully 
constructed by very good lawyers, provisions for an escape clause for 
the potential defendants. Here it is, the combination of proximate 
cause and violation of Federal-State statute.
  Again, close analysis of the evidence--and I don't think any of this 
evidence is in dispute; Malvo admitted he shoplifted the weapon--
suggests strongly this exception would not apply in the case of the 
Bull's Eye shooter. These sniper victims will be without relief. That 
is not just my view but the view of attorneys who have looked at it 
very carefully.
  Now, this is a very detailed legal analysis. But, again, we so 
often--all of us--appeal to rather common, homely--in a literal sense--
illustrations, something with which we are comfortable. I was struck 
when the Senator from Idaho talked about, Goodness gracious, if someone 
stole a car off a lot and drove into another car and caused damage, 
that you could not hold that dealer responsible.
  Well, I can conceive of a situation. For example, if a dealer 
ordinarily left the keys in all of the cars on his lot, and they were 
cited 15 or 20 times before for doing that, and people knew that the 
dealer's cars were available, and young kids came in and jumped into a 
car and drove off at 60 miles an hour careening into another car and 
killing someone, I will tell you what I think. You have a pretty good 
suit against that automobile dealer for negligence, for abandoning the 
care that any other dealer in the country would adopt. They would not 
be protected from a suit as we propose to protect the gun industry.
  Again, this legislation is very troubling to me. I do not think it 
provides adequate protections for people who have legitimate claims, 
the most graphic example of which is the sniper victims in the 
Washington, DC, area. But they are not alone. Danny Guzman was killed 
in Worcester, MA, as a result of what I think is gross negligence. A 
gun manufacturer employed, without background checks, ex-convicts, drug 
addicts, allowing them to steal weapons from the production inventory 
of the company, and to sell them to criminals in exchange for cash and 
drugs. This involved a multiple of weapons. They got the weapons out of 
the factory before they could stamp the serial numbers on them. Again, 
common sense would say: My goodness gracious, somebody has to be able 
to go in and require that employer to be conscious of their weapons, 
their security procedures.
  I also understand--and again it is an understanding that is not 
shaped by a footnote at the moment--there are really no effective State 
or Federal laws about the security of weapons. I do not think there is 
any requirement specifying you have to have triple locks or double 
locks, et cetera. I think that is left to the reasonable business 
standards of an individual dealer. Again, if we do not have those rules 
and regulations or they are not effective, how do we then insist we 
cannot have a negligence action, as this legislation proposes?
  For these reasons and many others I reiterate my opposition to the 
legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Hope springs eternal that we might, sometime in the late 
of the afternoon--I guess it is now described as early evening--see a 
unanimous consent agreement that would take us into tomorrow and the 
remainder of the week as to how we are able to move to and deal with S. 
1805 and its amendments.
  I am going to respond only briefly to what my colleague has just said 
because I am not an attorney and I am not going to attempt to outlawyer 
the lawyers. Mr. Cutler is a fine lawyer. There are many other fine 
lawyers who disagree with Mr. Cutler. It is not our job to outlawyer 
the lawyers, but it is our job to write law as clearly as we can and 
then allow judges, listening to the arguments of lawyers as they relate 
to how a given situation might fit in a suit, to make the determination 
as to the applicability of the law.
  Now, having said that, I would like to refer to another lawyer. Is he 
as recognized as is Mr. Cutler? No, probably not. But this does come 
from the Congressional Research Service, and it is one of those 
services that we utilize. The Senator has, I think, the same work 
product I have. We are talking about the Daschle-Craig-Baucus amendment 
that Senator Daschle came to the floor to speak to a few moments ago.

       The Daschle-Craig-Baucus Amendment would strike ``knowingly 
     and willfully'' in the preceding sentence--

  That we are talking about--

       potentially increasing the likelihood that [certain 
     exceptions] to the general immunity afforded under the [law] 
     would be applicable in any given case.

  They looked at it in relationship to the Bull's Eye case to which the 
Senator was referring.
  Now, these are not my words. I am not this good. I am not an 
attorney. But I do listen to them, and I seek out their advice when it 
comes to writing law and making sure that it is clear and unambiguous.
  They cite two examples and they say:

       Applying these changes to the scenario at issue--

  We are talking about Bull's Eye--

       it would appear that the Amendment could have the effect of 
     making it more likely that this exception to immunity would 
     be applicable, if certain facts are established.

  ``If certain facts are established.'' Those facts have not yet been 
established. They were not established for Attorney Cutler. He is 
simply looking at the broad presence of the law, or application of it, 
as are we.
  If certain facts are established in an investigation and charges are 
brought against an owner, then we believe our amendment clarifies and 
does not provide the immunity, if those facts are established.
  Now, the changes we are talking about are twofold:

       (I) any case in which the manufacturer or seller knowingly 
     made any false entry in, or failed to make appropriate entry 
     in, any record which he is required to keep pursuant to State 
     or Federal law--

  If weapons are stolen and they fail to note it, fail to report it to 
the police, that fits that area--

       or aided, abetted or conspired with any person in making 
     any false or fictitious oral or written statement with 
     respect to any fact material to the lawfulness or the sale or 
     other disposition of a qualified product.
  ``Other disposition''--theft. At least this is my interpretation now. 
I am not a lawyer. Secondly:

       [A]ny case in which the manufacturer or seller aided, 
     abetted or conspired with any other person to sell or 
     otherwise dispose of a

[[Page 2486]]

     qualified product, knowing or having reasonable cause to 
     believe that the actual buyer of the qualified product was 
     prohibited from possessing or receiving a firearm or 
     ammunition under section 922(g) or (n) of title 18, United 
     States Code. . . .

  That is what the Congressional Research Service says. Then it draws 
that conclusion I gave earlier:

       Applying these changes to the scenario at issue--

  That is what the Daschle-Craig-Baucus amendment does. ``The scenario 
at issue,'' the arguments put forth, the concern about somehow, if the 
facts are established, this firearms dealer being immune by S. 1805--

     it would appear that the Amendment could have the effect--

  The amendment is in large part incorporated in S. 1805 now, and 
Senator Daschle is going to offer another amendment that we know will 
be accepted and will clarify it even more--

     of making it more likely that this exception to immunity 
     would be applicable, [again] if certain facts are 
     established.

  That is the argument at hand. We can trade arguments of attorneys. We 
will place all these kinds of things in the Record so our colleagues 
can understand them and hopefully sort them out, but it is my opinion 
that we are not exempting this formerly licensed gun dealer who has now 
had his license revoked. Because if an investigation goes forward, and 
charges are filed against him, I believe we have clearly not granted 
him immunity under S. 1805 if it, in fact, becomes law. I do believe 
that is the strength of our argument, and one that certainly is 
believed to be what we represent here. It is certainly from the 
Congressional Research Service, which has very active attorneys who 
deal constantly with the law as we shape it and form it and look at 
arguments that are placed out there in the public arena in relation to 
the legislation that we bring before the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I recognize there are different legal 
interpretations. I recognize also the Senator from Idaho has introduced 
an interpretation of the Congressional Research Service. I have one, 
too. Theirs is dated November 3, 2003. Mine is dated October 20, 2003. 
We made a request. They looked at the amendment, the perfecting 
amendment offered by Senators Craig, Daschle, and Baucus. In the 
context of that correcting amendment, they opined in October:

       Again, you have specifically inquired as to whether the 
     Amendment would alter the bill to such a degree as to allow 
     the pursuit of a civil action against the gun dealer from 
     whom the weapon used in the D.C.-area sniper shootings was 
     stolen. A review of federal and Washington State law 
     indicates that there are no statutory requirements regarding 
     the storage and security of firearms by licensed firearm 
     dealers. Accordingly, it seems evident that there would be no 
     basis for the application for this exception in the case at 
     hand, irrespective of the presence of the ``knowing and 
     willfully'' requirement, given that there appears to be no 
     violation of a relevant underlying federal or state statute.

  That is an October CRS.
  Obviously a second opinion was sought. That is the nature of legal 
opinions many times. This opinion was premised on certain facts that 
are not yet obvious and perhaps never to be obvious.
  In fact, in reference in the report Senator Craig referred to:

       Thus, in the event that it is established that Bull's Eye 
     was aware that the firearm was missing from its inventory 
     more than 48 hours prior to November 5, 2002, the Amendment 
     would appear to lend further support to the application of 
     the exception to immunity . . . of the bill.

  Essentially what was done in this latest CRS was to say: We will 
assume hypothetically that in fact they violated the Federal statute, 
i.e., the requirement to report a weapon within 48 hours of its 
disappearance. Well, if you assume a violation of the statute, you have 
gotten way over the curve, because once again, Federal statute or State 
statute has to be violated, proximate cause.
  The problem is this assumption does not have much of an evidentiary 
base. The footnote to the report Senator Craig referred to suggests:

       These examples are pertinent to the extent--

examples of potential violations--

     they could be implicated in any hypothetical sale or transfer 
     to the D.C.-area sniper suspects. It should be noted, 
     however, that it does not appear that any evidence has been 
     produced of actual violations of these provisions by Bull's 
     Eye in the case at hand.

  The answer to qualifying this exemption is not to assume a violation 
of Federal law. There has to be some evidence. But there does not 
appear to be any evidence of violations of Federal statutes. There are 
no Federal/State statutes with respect to security of firearms, the 
physical security. The slender reed--no pun intended--they might hang 
it upon is they somehow knew the weapon was missing a long time before 
November 5, 2002, and they failed to report it. No evidence from Malvo 
suggests that. I don't know if there is, frankly. The stories we have 
all heard from the operator were he didn't know the weapons were 
missing until the day they showed up, the ATF showed up and said the 
weapons were missing. The practical effect of this is a judge might 
have the opportunity for a few minutes to look at this record, but 
where is the evidence?
  The practical effect of this legislation is these claims will be 
barred. That would be a great misfortune, not only for the families 
involved but a misfortune in terms of setting up a very bad precedent 
in terms of undermining the common law sense of responsibility for your 
actions. Senator Craig is a very articulate advocate for his position 
and has referred to that several times; this is just about maintaining 
centuries of legal precedent about individual responsibility. I 
disagree. I think it is about overturning centuries of legal precedent, 
the precedent that an individual is responsible for their actions, that 
an individual, such as the licensee at Bull's Eye, is responsible for 
not securing the weapons, is responsible for not knowing he has lost 
weapons--according to his view at this point--for days and weeks and 
weeks. If we immunize the individual, we will undercut that basic 
principle of individual responsibility.
  One of the things I find amazing in this whole discussion of the 
security of weapons is, I commanded a paratrooper company at Fort 
Bragg. I worried every day about the weapons in my outfit. We had 
double locks on the doors, locks on the racks, individual accounting 
every day of weapons. One of the things that as a young airborne 
captain you are worried about was showing up one day and discovering a 
weapon or part of a weapon or even equipment associated with a weapon 
was missing. That was a big deal. That is a standard of the United 
States Army.
  We are telling people who maintain large arsenals in commercial 
venues that the standard for them is nothing. Miss a few weapons, don't 
even pay attention because, frankly, knowledge will hurt you.
  This goes also to the principle of why we have laws of negligence, 
tort laws. It is not just for individual compensation. That is an 
important part of giving an individual the right to make themselves 
whole after they have been harmed. It is something else. It is about 
having a system of standards that are self-enforcing, not because there 
are ATF agents walking around, but because in addition to that, an 
owner of one of these stores will simply say: You know, I better make 
sure all these weapons are accounted for at least every week. I better 
make sure they are secure. I better make sure if people walk in who 
might not be eligible to purchase a weapon I at least ask them what 
they are doing. None of that appears to be done.
  In response to the specific question of the application of the 
exemption, I think the proponents have tried all they can to dress it 
up. It just doesn't work. There is a huge trapdoor when you put 
together violation of State or Federal statute and that violation 
causes proximate cause.
  Someone could go in and show they didn't file the records properly. 
That is a violation of Federal and State regulation. They could show 
perhaps they were lax in some other capacity. Then

[[Page 2487]]

you have to make the further showing that violation was directly 
connected. So literally in this case you are going to have to show that 
particular weapon that found its way into Malvo's hands was the subject 
or involved with a specific violation of Federal/State law. That is why 
this CRS report has to assume that particular weapon, of all the 248, 
was noted as missing more than 48 hours before November 5, 2002. That 
is an extra burden of proof. That is, again, why I don't think this 
will work for the victims of these crimes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, we hope we are narrowing down to a time 
when we will have a unanimous consent request which then--and I can't 
judge this yet--might conclude our efforts today. We will be back early 
tomorrow morning to resume. I thank my colleague for his arguments. We 
are not going to try this case here on the floor of the Senate because 
we don't have a judge. I am not a lawyer. He is; I am not. But I would 
also ask him to look at another provision we have in the bill as he 
argues the case. That is that a lawsuit could also be allowed under the 
bill's exception allowing actions for negligence per se or for 
negligent entrustment, depending on, of course, the condition of the 
dealer and the dealer's knowledge, if any, of the suspects.
  Having said that, let's remember to address these issues, the victim 
would need to get his day in court. The case will be filed. The 
defendant would file a motion to dismiss based on provisions of 1805. 
And if the judge--remember there is going to be the impartial judge 
weighing all the law and the findings--decides this case did not fall 
under those exceptions, then the litigation would proceed. That is the 
essence. We are not going to argue the case effectively here because, 
frankly, we don't know all of the facts. We are not a part of ATF's 
investigation, and all of those facts are not yet public. They will not 
be public until charges are filed, a suit is brought, and that day in 
court I just spoke of is at hand.
  Obviously, the Senator and I can disagree on what the meanings are, 
but I do believe the arguments we put forth are extremely valid. 
Certainly, the minority leader, myself, and others, in a very 
bipartisan fashion, have worked tremendously hard to craft this bill in 
a way that is as narrow as I expressed it to be earlier in the day to 
deal only in the protection of law-abiding dealers, law-abiding 
manufacturers who make a legitimate product, and to deny the kind of 
lawsuits we have seen that are more intent on bankrupting the 
manufacturer than they are in bringing resolution to or, if you will, 
dealing with the victims and rewarding them in any fashion.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Rhode Island.
  Mr. REED. Mr. President, my colleague from Idaho has invited me to 
look at the theory of negligent entrustment and negligence per se. I 
will try to do that.
  Again, this is not an attempt to dispose of a case before a court. 
But we all have an obligation to understand what we are voting on, what 
these provisions will do based on the plain language of the provisions 
and based upon the facts as we know them in certain cases. That is why 
I think this is a positive exercise. It is insufficient to say that we 
pass laws, but we do not have to know what they mean because some judge 
will figure out what they mean. No, no, I think we have to know what 
they mean because that should drive our decision about whether this 
legislation will pass or fail.
  Let me turn for a moment to these two theories of negligent 
entrustment/negligence per se.
  Negligent entrustment is generally understood as ``the supplying of a 
qualified product by a seller for use by another person when the seller 
knows, or should know, the person to whom the product is supplied is 
likely to, and does, use the product in a manner involving unreasonable 
risk of physical injury to the person or others.''
  Again, the seller has to know, or is likely to know, that the person 
they transfer the weapon to or supplied it to is likely to harm himself 
or harm someone else.
  The problem we have with respect to the sniper case is that the 
evidence the snipers' weapon was shoplifted from Bull's Eye would 
appear to preclude the plaintiffs from making the requisite showing 
under the statute that the gunshop knew or should have known that the 
recipient of the gun, Malvo, was likely to use the product in a 
criminal or otherwise unreasonably dangerous manner.
  Malvo indicated he shoplifted the weapon. The owner said he must have 
taken it. He didn't know it was missing until ATF showed up.
  The theory of negligent entrustment is fancy-sounding terminology, 
but it is another trapdoor from which the exception falls out.
  Negligence per se, under most--I am a lawyer, but I am hesitant to 
say I am a lawyer who is familiar in every detail with Federal 
practice, but my assumption is since we are talking about Federal and 
State laws, this negligence per se is a State common law concept that 
would apply to the laws of Washington State because that is where the 
Bull's Eye shooting gallery is located.
  In any event, with respect to negligence per se, it would not 
preserve the sniper case because even where that doctrine is 
recognized, it requires a violation of statute that is a proximate 
cause of the plaintiff's injury. Once again, you have to show not only 
the violation but that violation of that particular law was a proximate 
cause of injury. As discussed above--again I am borrowing from one of 
these legal analyses--that would be very difficult to show. In fact, 
also I think there is another problem in Washington State about the 
doctrine of negligence per se.
  The negligence per se doctrine has been abrogated by statute in 
Washington State. It doesn't apply.
  Once again, I think we have an exception that does not provide relief 
for these individuals.
  I conclude by joining my colleague in hoping we have some resolution 
soon on the procedural process for this evening and tomorrow. I yield 
the floor.
  Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, after consultation, we have reached a 
unanimous consent agreement which I will now propound.
  I ask unanimous consent that at 9:30 a.m. tomorrow morning the Senate 
proceed to the consideration of S. 1805; that Senator Daschle then be 
recognized to offer his perfecting amendment; that there be 30 minutes 
equally divided for debate on his amendment; that at the conclusion or 
yielding back of time the Senate, without any intervening action or 
debate, vote on the Daschle amendment; that upon the disposition of 
that amendment Senator Boxer be recognized to offer a gun lock 
amendment; further, that following 30 minutes of debate equally divided 
in the usual form Senator DeWine be recognized to offer a relevant 
second degree under the same conditions; further, that following the 
use of time the Senate proceed to a vote in relation to the second 
degree to be followed by a vote in relation to the underlying 
amendment.
  Further, I ask unanimous consent that following those votes Senator 
Campbell be recognized in order to offer an amendment regarding 
conceal-carry and that there be 60 minutes equally divided in the usual 
form with no second degrees in order; provided that following that time 
the amendment be set aside and Senator Kennedy be recognized to offer 
an amendment on ``cop-killer'' bullets with 60 minutes equally decided, 
and that there be no second degrees in order, and that following that 
time the amendment be set aside.
  I further ask unanimous consent that Senator Cantwell then be 
recognized

[[Page 2488]]

to offer her unemployment extension amendment; that there be 60 minutes 
for debate equally divided on her amendment and it then be laid aside; 
that no second-degree amendments be in order to her amendment; further, 
that Senator Frist or his designee then be recognized in order to offer 
an amendment relating to voting rights and that there then be 60 
minutes of debate equally divided with no amendments to the amendment; 
provided further that the Senate then proceed to vote in relation to 
the Cantwell and Frist amendments in that order, and that if either 
amendment fails to receive 60 votes, the amendment be withdrawn or fall 
due to a pending point of order.
  I also ask unanimous consent that Senator Mikulski then be recognized 
to offer her amendment on snipers with 40 minutes equally divided in 
the usual form, to be followed by a vote in relation to the amendment, 
to be followed by an amendment offered by Senator Corzine on law 
enforcement officers for 30 minutes equally divided in the usual form, 
to be followed by a vote in relation to the amendment, to be followed 
by an amendment by Senator Bingaman on definition, with 30 minutes 
equally divided in the usual form, to be followed by a vote in relation 
to the amendment.
  I further ask unanimous consent that following each of the Boxer, 
Kennedy, Mikulski, Bingaman, Corzine amendments it be in order for 
Senator Frist or his designee to offer a first-degree amendment that 
would be relevant to the mentioned amendments and limited under the 
same time constraints; and that the possible Frist amendment on ``cop-
killer'' bullets be set aside after time has expired or yielded on the 
amendment; and that the possible Frist amendments would be voted on 
prior to the respective Democratic amendments; that on Tuesday morning 
at 9:30 a.m. the pending amendments be withdrawn with the exception of 
the Campbell amendment, the Kennedy amendment, and a possible amendment 
by Senator Frist regarding ``cop-killer'' bullets, if there are any 
pending at the time; that Senator Reed then be recognized to offer a 
gun show amendment; that it then be immediately laid aside and Senator 
Feinstein be recognized to offer her assault weapons ban amendment, 
that it then be set aside, and that Senator Frist or his designee be 
recognized to offer a DC gun ban amendment; that the time prior to 
11:35 a.m. that day be equally divided for debate on all amendments 
concurrently; that no second-degree amendments be in order to any 
amendment; that at 11:35 a.m. the Senate vote on the Feinstein 
amendment, followed immediately by a vote on Senator Reed's amendment, 
to be followed by a vote on the Campbell amendment, to be followed by a 
vote on the Kennedy amendment, to be followed by a vote on the District 
of Columbia ban amendment; further, that following the disposition of 
the above amendments the bill be read the third time and the Senate 
proceed to a vote on final passage of the bill with no intervening 
action prior to those votes; that where this agreement provides for two 
or more votes in sequence there be 2 minutes for debate equally divided 
in the usual form prior to each vote; that all time for debate be 
equally divided in the usual form.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, it has obviously taken a good deal of 
time to reach this agreement due to the complexity that is apparent as 
Senator McConnell has read it.
  There are two matters that ought to be recognized. First, this does 
not preclude Senators who are not listed in this unanimous consent 
agreement from offering an amendment sometime either this week or early 
next week. Senators who have additional amendments are certainly 
welcome to do so.
  Second, this does not preclude those who have amendments on Tuesday 
from discussing and speaking to those amendments at any time between 
now and when those amendments are raised. There was some question about 
whether 2 hours on Tuesday for three very important amendments is 
adequate. My answer is that it is more than 2 hours if people want to 
devote more than that time between now and the time they are offered. I 
encourage Senators who wish to speak longer to come to the floor over 
the course of the next week to do so.
  This is a very fair agreement. It is one that takes into account a 
lot of concerns and interests on the part of many Senators. I am 
supportive of the agreement and hope that we can have a good debate as 
a result of it.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip.
  Mr. McCONNELL. I echo the comments of the Democratic leader. This 
agreement, which is quite complex, allows us to accommodate various 
interests on both sides of the aisle but then move to final passage on 
the underlying bill, which, of course, was the goal of the majority 
leader in bringing it up at this time. I particularly commend Senator 
Craig, who has done a marvelous job of managing this issue on our side, 
and I thank him for his important contribution in reaching this 
agreement that will allow the Senate to achieve final passage on a bill 
that he is the principal sponsor of and that we believe a substantial 
majority of Senators on a bipartisan basis would like to see ultimately 
become law.
  Mr. CRAIG. Will the Senator yield?
  Mr. McCONNELL. I yield.
  Mr. CRAIG. Let me thank both the leadership on our side of the aisle 
and certainly the minority leader and the minority whip for the work 
they have done in trying to bring this together.
  Is this something that I wholeheartedly support? Well, let me put it 
this way: It is something I support because it gets us to a final vote, 
which is very important, in a timely way.
  But something is absent from this unanimous consent agreement that is 
very important: to allow the underlying bill, however it is changed, to 
become law. That is why we are here on the floor. Not that this is how 
we get to conference, which oftentimes is agreed to. When we craft a 
bill and arrive at a time of final passage, we almost always include in 
it the procedure by which we will get to conference.
  I hope that our minority leader, in good faith, would work to help us 
get to that point so we can work out the differences between the House 
and the Senate. There will be differences; that is quite obvious now. 
Some of these amendments could pass. It is important we work that out.
  We saw the underlying bill gain a substantial bipartisan majority 
support in the Senate, and therefore it is incumbent upon all of us, I 
trust, to get this bill to a conference between the House and the 
Senate, work out our differences so we can vote on a conference report 
and allow this underlying bill now changed to get to our President's 
desk.
  Having said that, let me thank everyone for the work they have done. 
This is a very busy schedule. But let me also echo what the minority 
leader said. It does not stop other Members who feel they must offer 
amendments from bringing those to the floor. I said early on today we 
wanted an open process, amendments voted on, but at the end of the day 
we wanted to vote on final passage. We helped facilitate that by this 
agreement, and I appreciate the work done by our leaders.
  The PRESIDING OFFICER. The majority whip.
  Mr. McCONNELL. I was just reminded by floor staff that the Reed 
amendment is, in fact, the McCain-Reed amendment. I ask consent that 
the agreement we just reached be so modified.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Democratic whip.
  Mr. REID. Mr. President, I feel constrained to say that we have been 
in a quorum call now for 4 hours 10 minutes, but that does not take 
away from the fact that people have been working very hard during this 
entire period of time, plus earlier this day. I personally extend my 
appreciation to the two leaders, the Republican leader and the 
Democratic leader, for working with us. Senator Frist is not on the 
floor tonight. We have been in constant contact with him during the 
evening.

[[Page 2489]]

  I also want to say that Senator Reed, my counterpart from Rhode 
Island, has been representing those people who are extremely concerned 
about this issue, probably 12, 15 Senators. He has been extremely 
helpful, as he always is. He has represented his cause in the most 
efficient way. Without his cooperation and work, Senator Daschle and I 
could not be at the point where we are today.
  The PRESIDING OFFICER. The majority whip.

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