Protection of Lawful Commerce in Arms Act-Motion to Proceed - Part One

PROTECTION OF LAWFUL COMMERCE IN ARMS ACT-MOTION TO PROCEED

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 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?

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.

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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.

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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 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 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-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 kid 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 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.