Protection of Lawful Commerce in Arms Act - 1
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT -- (Senate - July 28, 2005)
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Mr. DURBIN. I thank my colleague from Michigan.
Let me describe a tragedy, a tragedy which hits a little close to home for me. My grandson is 9 years old.
This is a tragedy involving a 10-year-old little boy in Philadelphia. On February 11 of last year, this little boy, Faheem, was on his way to school, walking from home to school. As he came into the schoolyard through the gates, a gang member came up and shot him in the face. He remained conscious for a short period of time, lapsed into a coma, and died 5 days later. That is a tragedy.
The reason I bring it up is because the amendment of Senator Levin, before us, addresses this tragedy. Where did the gun from come? It turns out it was in the hands of a gang member, one of these drug gang kids, crazed, trying to find money, shooting in every direction. He had the gun in his hand.
The obvious question to be asked is, Where did this drug gang member get his gun? We know where he got it. He got it through the American Gun and Lock Company of Girard Avenue, in Philadelphia, PA.
Did he buy it there? No. What happened was one of the gang members walked into this gun store with his girlfriend and he said, My girlfriend wants to buy some guns.
Why did he say his girlfriend? Because the gang member had a criminal record. He couldn't buy the guns. So the gun owner, the gun store owner, sees the girlfriend buying the guns for the gang member standing next to her, and decides he is going to charge a handling fee because she is a third-party purchaser.
They knew what was going on. The girl friends buy guns for the gangs to use on the street. So the store sold the gun, clearly understanding what was going on here, even charging a handling fee for it. It gets on the street in the hands of a gang member and a 10-year-old little boy walking into the schoolyard is shot in the face and killed.
So the question is this: Did the gun dealer do anything wrong? That is the question. I think it is a legitimate question. I think the gun dealer knew exactly what was going on here. The gun dealer wanted to make some money. The gun dealer was willing to look beyond the obvious criminal standing in front of him to the straw purchaser, this girlfriend, and let the girlfriend buy the gun and even charge a handling fee. What Senator Levin's amendment says is this is gross negligence. If you did not know this gun was going to be used in a crime, you were certainly negligent in allowing this to occur on your premises and we ought to be able to go to court. The family of this little boy who was murdered on the street should be able to go to court and say that gun dealer should be held responsible.
Do you know what? This bill before us will never allow that gun dealer to be held responsible for that misconduct. He sold the gun to the girlfriend of the gang member. The gun hits the street. The gun kills the little boy. And the courthouse doors will be closed to that family because of this bill unless we pass the amendment of Senator Levin.
That is what this is all about. If you think that is fair to let that gun dealer off the hook and to say to the family of that 10-year-old boy, "We are sorry; you don't have the right to go to court and hold that gun dealer personally responsible," then you naturally would have to oppose the amendment of Senator Levin. But if you think this business, as every business in America, has a responsibility to do the right thing, there is a standard of care in the products they sell and the way they sell them, that this company, like every other company in America, should be held responsible for their own misconduct, then I suggest you should vote for the amendment of Senator Levin.
I retain the remainder of my time and yield the floor.
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Mr. DURBIN. Will the Senator yield for a question?
Mr. REED. I am happy to yield.
Mr. DURBIN. First, I thank the Senator from Rhode Island for his leadership on this issue. The Senator from Rhode Island is a member of the Armed Services Committee. I think it raises some questions and bears repeating that we left the Department of Defense authorization bill, which was on the floor of the Senate, the bill for our Department of Defense that covers our soldiers and their families, buys the necessary equipment so they can execute the war successfully and come home, with amendments pending relative to payments to widows and orphans for soldiers who died in the line of duty, with amendments pending to provide additional assistance to totally disabled veterans, with an amendment pending that would have provided additional compensation to members of the Guard and Reserve who happen to work for the Federal Government and are activated.
I would like to ask the Senator from Rhode Island, can the Senator from Rhode Island tell me, before we moved to this special interest legislation to protect the gun industry manufacturers and dealers from personal responsibility for their wrongdoing, would the Senator from Rhode Island describe for those following the debate what was on the floor of the Senate when the Republican leadership decided to move to this bill?
Mr. REED. I thank the Senator from Illinois for his question. There were a series of extraordinarily important questions with respect to the quality of life for our soldiers and their families: childcare amendments, amendments with respect to veterans health care, amendments that applied not only to active-duty personnel but their dependents. We had passed legislation already, an amendment that would increase the number of up-armored HMMWVs we are providing to our soldiers. That stands in abeyance until we finish the legislation.
There were important inducements for additional service and enlistment that are necessary to meet the growing and real crisis in recruiting military personnel. If you want to talk about a crisis, it is a crisis, the fact that our Army, despite efforts, has fallen short of the recruiting goal at a time when we need every person to fill out the demand for operations in Iraq and Afghanistan and around the world. It is extraordinarily serious.
I don't know if I can find it, but I saw an editorial cartoon in a magazine, a newspaper, which had a picture of a humvee and three soldiers. The caption, if I recall it, is:
Why don't we just take a 4-week recess during this difficult time and then return to this operation afterwards?
Essentially, I think it captured the dilemma the soldiers are feeling right now. What are we doing?
As the Senator previously indicated, in the Army Times, they wrote of this:
Senate delays action on the defense bill.
I ask unanimous consent to have two articles printed in the RECORD, one from the Hill and the other from the Army Times, which talk about this issue of leaving the Defense bill and also the impact on procurement of weapons because of this legislation.
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Mr. DURBIN. I will ask a question through the Chair. The Senator from Rhode Island, who has been speaking about the lack of emergency, the lack of crisis in the gun industry, and the fact that this is certainly not emergency legislation-I don't believe it is even wise legislation for us to consider-the Senator from Rhode Island is a graduate of West Point and a former officer in the U.S. Army. I would like to ask the Senator, who serves on the Armed Services Committee, as he has read these Army Times articles which raise questions about why the U.S. Senate would give up on the Department of Defense authorization bill for our troops, leave it behind and move to this bill, the special interest bill to protect the gun industry from their liability for their own wrongdoing, I would like to ask the Senator, what kind of impact can this have on the morale of the men and women who read about the Senate leaving this important legislation?
Mr. REED. I think at a minimum it puzzles them why we would shift from their concerns, which are so central to our national security and so central to the families of America, to move to a bill that is so narrowly focused on a special interest group and does not help them one bit in terms of anything we might do on this bill.
Perhaps it is summed up. I have located the cartoon. It is as I described before-a group of soldiers in a humvee, and the caption is:
I move we adjourn for 5 weeks and take up this contentious issue after the summer recess.
Frankly, no one in our military has the option of adjourning for 5 weeks to take up contentious issues after that time.
Mr. DURBIN. If the Senator from Rhode Island will further yield for a question to the Chair, I wish to make sure those following the debate understand what this bill does. I ask the Senator from Rhode Island, who has followed this issue more closely than any other Senator on our side of the aisle, is my understanding correct that if this is enacted into law, as a result of this legislation, if you are a gun dealer and you sell a gun to someone you knew or should have known was in a drug gang, a criminal, a drug trafficker, someone who is likely to misuse that gun, use it for criminal purposes, that this bill says that the victims of the violence from that purchaser cannot hold the gun dealer responsible for his negligence in selling this gun to someone they knew or should have known was going to misuse it and create victims, tragic victims, in their community?
Mr. REED. The legislation generally bars all suits involving negligence and restricts the exemption to some categories of specific violations of Federal law which arguably, in your hypothetical, it would not reach. The only exception, to be fair to the legislation, that might allow someone to go to court under the concept of negligent entrustment, which as drafted in the legislation would say you have to suspect, know that the person would use the weapon illegally, and that person has to use the weapon. But most commonly what happens is there is a straw purchaser, so the negligent entrustment argument doesn't work because that weapon is not being used by that person; it is given to a third party.
But I think the Senator's comment is exactly right. There are so many cases where this legislation has been carefully crafted to prevent people going to court, and the best examples are the ones of which we are already aware. The sniper case in Washington, DC, where a young teenager walked into a shop, shoplifted apparently a 3-foot assault weapon which was used to murder too many people here in the District of Columbia. That suit would be prevented by this legislation; in addition, the case of the straw purchaser and the police officer in New Jersey, prevented by this legislation. We have a case pending now where an individual, a young man, was killed by a weapon that was taken out of a factory, and the gun manufacturer would be exempt, immune from liability, even though he had no background checks on his workers who were criminals and drug addicts, he had no security devices and, in fact, missed any rudimentary standard of care that most reasonable people would say is associated with running a gun factory.
Mr. DURBIN. If I could ask the Senator from Rhode Island another question, through the Chair. If someone owned a daycare facility and hired, without any background check and without adequate investigation, an employee with a long criminal record of being a sexual predator, someone hired this person to work in a daycare center and that employee then harmed one of the children at the daycare center, I think the Senator from Rhode Island and I would agree that many would argue that daycare center was negligent, it had a responsibility it did not meet, and that this daycare center should be held responsible, even in court, for the harm that came to the child.
The example that the Senator from Rhode Island used was a gun manufacturer, who hired employees with long criminal records, including felonies, that had guns stolen out of the manufacturing plant by some of these employees with criminal records, and the guns were then used on the street to harm innocent people.
In the second example we have used-not the daycare center but the gun manufacturer-this bill would say you can sue the daycare center because they didn't do a background check on the employee who molested the children, but you can't hold the gun manufacturer liable for hiring employees with a criminal record, putting guns on the street and killing innocent children.
Mr. REED. That is exactly right, in my reading of the legislation. There are certain jurisdictions that have specific laws with respect to background checks on daycare centers. The gun industry is virtually unregulated, which is a very important point here. There is very little regulation deliberately on the manufactured weapons, the standards. As you point out so often with respect to product safety, toy guns are regulated by the Consumer Product Safety Commission, real guns are unregulated in terms of their safety. So there is no legal-very little legal statutory requirement. So it depends upon claims of negligence to get at this harm and to redress the harm caused, and this bill essentially wipes out that civil liability under our court system.
Mr. DURBIN. I ask the Senator from Rhode Island because I think it is a critical point, how many other businesses in America enjoy this exemption from liability, how many other businesses, producers of goods or services are held harmless for their own negligence and wrongdoing in courts of law across America? How many other businesses would have this special interest legislation that is being considered and may be passed by this Chamber?
Mr. REED. Virtually no other. Comments were made on the floor with respect to legislation passed back in 1994 with respect to general aviation. I think it is important at this juncture to clarify that. There was very limited legislation that applied to general aviation aircraft, 18 years or older, in terms of liability because of the concern about the manufacturing base. But there is a distinct difference between this legislation and the General Aviation Revitalization Act of 1994, and it goes to the point we just discussed. There is no more highly regulated industry than the aviation industry. Every time an engine is worked on, there has to be a log entry made which is subject to the jurisdiction of the Federal Aviation Administration. It is the most detailed legislative scheme we have in place perhaps because the safety of the passengers, all of us, depends upon it. So giving a limited grant of immunity to an industry that is so highly regulated is quite different than telling an unregulated industry you have no liability. That is essentially what this bill does, with very minor exceptions; clearly, I think exceptions which were artfully crafted to avoid the cases that exist today.
Mr. DURBIN. I would like to ask, through the Chair, if the Senator from Rhode Island would further yield for a question. We have talked about the gun manufacturer who did not do a background check on his employees and the employees stole guns without serial numbers on them-the guns went onto the street and were used to kill innocent people-that that gun manufacturer would escape liability under this bill that is before us. I would like to ask the Senator from Rhode Island about the example where someone who is a gun dealer, knows that under the law you cannot sell guns to felons, people convicted of a felony, sees someone who comes in with another person, we call them straw purchasers, someone else who is going to buy the guns, a girlfriend, some other person. We had a case I believe the Senator referred to, a 10-year-old boy in Philadelphia on his way to school gets right to the gates to go into the schoolyard, a gang member comes up and shoots him in the face. He survived, was conscious for a few hours and then lapsed into a coma and died. It turns out that the gun was traced to a store where it was sold to one of these straw purchasers-the other purchaser, the real purchaser who wasn't eligible to buy it, standing next to them. So it was pretty clear what was going on. The store clerk charges extra because there is a straw purchaser involved, acknowledging they know that this gun is being bought by one person to be given to another.
So what the Senator from Rhode Island is telling us is that this bill says the family of that 10-year-old boy shot in the face, who died by that gun, cannot even go to court to hold responsible the gun dealer who knowingly sold this gun to a straw purchaser to avoid the law.
Is that my understanding of this as it is written?
Mr. REED. I think the Senator is right. The only exception that could be argued would, I believe, be the exception with respect to negligent entrustment. As I pointed out, that has been defined to mean that the individual who receives the weapon-you have to have also the suspicion that that person is going to use the firearm. In the classic case of a straw purchaser, they are the conduit to someone else----
Mr. DURBIN. Middleman.
Mr. REED. Middleman. So that the argument made by lawyers would say negligent entrustment, saying they gave it to inflict harm. Therefore, this very narrowly defined exception would not apply. Generally, the case I believe would be thrown out of court.
Mr. DURBIN. I would ask the Senator from Rhode Island, when it comes to protecting gun dealers from civil liability, from being held responsible in court for their wrongdoing, I have read repeatedly that when you consider all of the licensed gun dealers across America, it is a very small percentage that repeatedly sells guns that, when traced, are used in the commission of crimes. It turns out, in my State of Illinois and in many other States, that the gun dealers who are the real wrongdoers, the ones who are abusing the system, are not the gun dealers selling in downstate Illinois, where I live, to the hunters and sportsmen and people who go to target ranges or want a gun for self-defense, the real perpetrators of crime or wrongdoing who are protected by this turn out to be a handful of dealers in my State who again and again and again sell guns that end up involved in criminal activity.
So I would ask the Senator from Rhode Island, who are we trying to protect here when it comes gun dealers?
Mr. REED. The Senator asks an important question. According to Federal data from the year 2000, 1.2 percent of dealers accounted for 57 percent of all guns recovered in criminal investigations--1.2 percent of dealers, 57 percent of the guns recovered from criminal investigation. In fact, the national crime tracing data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco and Firearms and Explosives has a virtual scorecard on these egregious offerings.
Badger Outdoors, Inc., in West Milwaukee, WI, the dealer sold more than 554 guns traced to crimes, 475 of these guns had a "short time to crime," as defined by ATF; that is, almost immediately they were in the hands of someone and had some type of criminal activity.
I could go on.
Well, for the benefit of the Senator, Realco Guns in Forestville, MD; Southern Police Equipment in Richmond, VA; Atlanta Gun and Tackle in Bedford Heights, OH; Colosimo's Inc, in Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN.
Mr. DURBIN. These are the gun dealers.
Mr. REED. Elmwood Park, IL; Breit & Johnson Sporting Goods in Elmwood Park, IL.
Mr. DURBIN. These are the gun dealers that repeatedly sell guns that are traced to crimes. I ask the Senator from Rhode Island this question. The argument used for this gun legislation is, how can you hold a gun dealer responsible? For goodness sakes. How will they know what is going to happen to this gun? They sell the gun to a purchaser, the gun leaves the shop. Why in the world would you hold the gun dealer responsible? In the cases we have cited, in the examples which the Senator has used, you have gun dealers, 1.2 percent, who are responsible for more than half the guns traced to crimes. In these dealers you have repeated sales, and over and over again, hundreds of times, to those who will use them in crime. It obviously raises a question which the supporters of this legislation can't answer, and that is why you are trying to protect these miserable bums. Why are you trying to say they can't be held responsible for the devastation and killing and violence that goes on, on our streets when they are sitting there churning out firearms that are used day after day in the commission of a crime.
I ask the Senator from Rhode Island, why do we not create an exception in this law for those who are repeat offenders as gun dealers who continue to sell these guns used in crime and we know it and we have the facts to prove it.
Why in the world should we protect them in this legislation?
Mr. REED. The Senator's point is extremely well taken. I think there should be at least that exception. I would argue, frankly, that the bill could be further modified to essentially allow individuals who have been harmed-move away from the issue of municipal suits but that is exactly the political implication-to let those suits survive. In fact, as Senator Levin urged, increase the standard from negligence to gross negligence, so further undercutting the argument about frivolous junk lawsuits.
That would be a broader remedy, but your proposal is very wise.
Let me give you an example of that store in Elmwood Park, IL, which I presume is close to Chicago.
Mr. DURBIN. Yes.
Mr. REED. This dealer has sold more than 347 guns traced to crime; 271 of those guns had a short time to crime as defined by ATF-again short transit from the time it was sold to the crime scene. The guns were involved in at least 27 homicides, 46 assaults, 23 robberies, and 271 additional gun crimes. The dealer also sold at least 5,429 handguns in multiple sales. That is another possible important remedy, the issue of multiple sales.
Anthony Garner was arrested for gunrunning after he bought 16 handguns from Breit & Johnson that were then sold to Chicago gang members. At least one of those guns was used in a gang-related killing. Andrew Young, age 19, was killed by Mario Ramos, a gang member with a gun from Breit & Johnson.
The list goes on and on. We have these statistics. These are collected by the ATF. We know what's going on.
Mr. DURBIN. I would ask the Senator from Rhode Island, I am a member of the Senate Judiciary Committee, and we are considering two different bills to deal with criminal gang activity across America, which is a serious problem.
We are coming down with a variety of different ways to deal with these criminal gangs, to investigate them, to break them up, to arrest them, to make certain they face serious sentences for intimidation of witnesses, for recruiting young people into their gangs.
I ask the Senator from Rhode Island, how can a Member stand in the Senate and say they are dedicated to stopping criminal gang activity in America and vote for this bill which allows gun dealers who have clear histories of selling repeatedly to gang members firearms that are being used to kill innocent people? How can a Member say they are against criminal gangs but are in favor of the gun dealers who are providing them with their firearms?
Mr. REED. The Senator raises an excellent point. I phrase it slightly differently, but I reach the same conclusion.
If gun dealers-who now have the threat of a civil suit if there has been negligence-are so cavalier in their attitude about guns, selling them to criminals, to straw purchasers, what happens when they are fully immunized or virtually immunized from any type of liability? What happens when they know that no family is going to come in and say, My son or daughter died because of your negligence, and we are going to see if we can take you to court and get something back-we will never get the child back-but something back.
What about the surviving spouse or children who need something to maintain the quality of their life because they have lost their breadwinner?
There is the case of Conrad Johnson, killed by one of the DC snipers. Those cases would be barred by this legislation.
It is not that the individuals, families, and the survivors are denied their day in court, but any incentive to be responsible, to be scrupulous, to look harder to determine whether that person is buying the weapon at the direction of another, as a straw purchaser, is virtually eliminated. The consequences are going to be much worse. These dealers will be more flagrant, more blatant, less restrained. It is hard to see how they could be more blatant than they are today.
Mr. DURBIN. I ask a final question. There has been a lot of discussion in the Senate about the fact there is no exception for gun dealers who sell their guns to people who turn out to be on the FBI's Most Wanted list or those who may be involved in terrorism.
As the Senator from Rhode Island is undoubtedly aware, immediately after September 11, we raided one of the al-Qaida headquarters in Afghanistan and discovered one of their training manuals in which they gave advice to terrorists coming to the United States about buying their firearms in the United States because it was easy to buy a gun in this country.
I ask the Senator from Rhode Island, when it comes to the exceptions in this bill, is there any exception such as the one suggested by Senator Kennedy that would put gun dealers on notice not to sell guns to people who are on the FBI's Most Wanted list so that we would say, you cannot get off the hook and be held, that you are not liable, not responsible for wrongdoing with a weapon if you did not take the time to check the FBI's Most Wanted list when you made that sale.
Mr. REED. The Senator is again accurate. Unless Senator Kennedy's amendment is allowed to be voted upon, there is no prohibition against looking at the person's picture on the FBI's Most Wanted list, looking at the person and saying: Have a nice day. Take the gun.
Again, one could argue that if that person actually uses the weapon, it might be negligence, but if he or she is a straw purchaser or buying lots of weapons to pass out, they would escape liability.
Mr. DURBIN. I might just say, in closing, to the Senator from Rhode Island, when we traced criminal guns used in Illinois to kill people and commit serious crimes and tried to figure out where they were coming from, the largest supplier of guns to the State of Illinois of was Mississippi. In Mississippi, the enforcement of local gun laws is so relaxed and the enforcement of Federal laws is so relaxed that people could literally buy a van full of cheap "Saturday night specials," get on the interstate highways and head north to Chicago, Springfield, and St. Louis, selling those guns on the street.
I ask the Senator from Rhode Island, is there anything in this bill which will make it more difficult for those gun traffickers to buy these guns, turn them loose on the streets to kill innocent people in my State or any State in this country?
Mr. REED. I don't see that. In fact, I don't see that as the purpose of this legislation. This is not about preventing criminals from getting weapons. It is preventing victims of gun violence from getting their day in court.
Mr. DURBIN. I thank the Senator from Rhode Island.
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