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

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. 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 6½ 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," § 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. § 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 § 4(5)(D), the above-described exceptions would only preserve civil claims 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 § 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. § 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." § 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 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 § 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 § 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, thereby removing the case from the statutory exception ostensibly intended for cases involving gun design or manufacturing defects. See §§ 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.
BREAK IN TRANSCRIPT

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.

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.

BREAK IN TRANSCRIPT

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 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.

BREAK IN TRANSCRIPT

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.