Protection of Lawful Commerce in Arms Act-Motion to Proceed

PROTECTION OF LAWFUL COMMERCE IN ARMS ACT-MOTION TO PROCEED

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. DURBIN. Mr. President, I want to first commend my colleague from the State of Ohio. I was listening to his presentation. It was a reasoned presentation which I think analyzes this bill in a fair manner. I want to also salute his political courage. It is not easy on his side of the aisle to stand up and oppose this bill. He has done this time and again on many issues. I am happy to count him as a friend and as a colleague whose judgment I value very much. I thank the Senator from Ohio for his continuing leadership in this Chamber.

Mr. President, what is this bill? S. 1805 is a bill brought to the Senate floor by the National Rifle Association on behalf of firearms manufacturers, dealers, and their own trade association. It is a bill that has been introduced to insulate those manufacturers and dealers and the NRA itself from liability for wrongdoing. It is unimaginable that we would name any other industry in America and say that you can sell your product and not worry about being held accountable, if you did it in an irresponsible and negligent way. We wouldn't think of doing it, but we are doing it with the gun industry.

I can count votes. I can count the cosponsors. A majority of my colleagues support this bill. I can't explain it. I could never explain it. In a country where we value the right to own and use firearms legally and responsibly, we have a bill which says we will protect those who sell and use firearms illegally and irresponsibly. Why? Why does the Senate reach this low point-possibly one of the lowest points in its history when we are carving out an exception from liability for gun manufacturers and gun dealers? Maybe my colleagues who support this don't watch the evening news in cities across America. Maybe they do not see the blood and gore in the streets of cities from the misuse of firearms used illegally and irresponsibly that have caused so much heartache and misery for families across America. Frankly, I think they are ignoring the obvious-that unless we ask those who own firearms to establish a standard of use that keeps them away from those who misuse them, that we, in fact, are inviting more restrictions on the legal use of firearms. This bill-this outrageous bill-is going to draw us again into a national debate which is long overdue.

Since President Bush was elected and during his campaign, the NRA said once he is in the White House we don't have to worry about any restrictive legislation. Since President Bush's election, we haven't had an honest debate about a gun issue in Congress. That is a fact. Gun crimes continue, gun deaths continue, and the proliferation of weapons in the hands of those who misuse them continues. We ignore it, but we can't ignore this. This is not an effort to restrict gun ownership. This is an effort to restrict the legal ranks of the victims of gun crimes.

There is a crime victims' amendment which has been supported by both sides of the aisle-Senator Kyl, a Republican, and Senator Feinstein from California, a Democrat. They make an impassioned plea for a constitutional amendment to make certain that crime victims and their families will be present in important parts of criminal proceedings. It is a compelling argument. I had my personal questions as to whether it rises to the level of a constitutional amendment, but I would be happy to enthusiastically support a Federal statute that would establish that right.

I believe when it comes to victims, they need to be a part of the process of prosecution. They need it not only because they are important to the process but because it brings closure in their own lives.

The many Members of the Senate who rush to the side of crime victims for this constitutional amendment are the same Members of the Senate-many of them-who are supporting this legislation which will close the courthouse doors to crime victims and their families across America when firearms are involved. Don't tell me your sympathies are with crime victims. If your sympathy is with the victims of crime, you have to vote no on this.

Let me give you an illustration in my home State of Illinois.

Five years ago, in June of 1999, a man named Benjamin Smith went on a shooting rampage in my State. You may remember it. It was finally discovered that he was linked to a group known as the World Church of the Creator. He was a follower of a white supremacist. And in his mania, this demented disciple went on a shooting spree across the Midwest. In June 1999, Benjamin Smith attempted to purchase guns from a licensed gun dealer. He was denied because a background check turned up a domestic violence restraining order which prohibited him from purchasing a gun. So he turned to someone he knew on the street who could buy a gun-a gun trafficker named Donald Fiessinger. Fiessinger routinely bought handguns-usually Saturday night specials, cheap little crime guns-from a place called the Old Prairie Trading Post in Pekin, IL. Mr. Fiessinger would then resell these guns through classified ads in a local newspaper. Over a 2-year period, Fiessinger-this gun trafficker-purchased 72 guns, three a month on average, from the Old Prairie Trading Post in Pekin, IL, and then turned around and sold them.

The gun store never even asked at any time whether these guns were going to be used for Fiessinger's personal use.

I think it is pretty obvious. Buying three guns a month for 2 years-I don't care whether you are a target shooter or interested in self-defense, I can't imagine a need for the 72 cheap Saturday night specials which Fiessinger was buying from the dealer.

The manufacturer of these cheap crime guns, of course, didn't place any restrictions or conditions on dealers like the Old Prairie Trading Post. It didn't say you should prevent the large volume sale of guns to people who are obviously turning around and reselling them to gun traffickers.

As a result, this Benjamin Smith bought two guns from Fiessinger, and then he went on a 3-day, hate-filled shooting spree across Illinois and Indiana. It was a shooting spree inspired by his hatred and his bigotry. He targeted racial and religious minorities. When it was all over, he killed two people and wounded nine others.

Five of those victims joined in a lawsuit against both the manufacturer of these cheap Saturday night special weapons, as well as the distributor. They included Sherialyn Byrdsong-we know that name in Chicago and in the Midwest. It was her husband, Ricky, a former basketball coach at Northwestern University, an African American, who was shot in the back and killed as he walked with his children down their residential street in Skokie, IL; on behalf of the family of Won Joon Yoon, a 26-year-old South Korean graduate student at Indiana University, who was shot twice in the back and killed on the steps of the Korean United Methodist Church in Bloomington, IN, picked out of the crowd because he had the appearance of an Asian; Rev. Stephen Anderson, a minister who was shot on his way to join his family at a Fourth of July celebration; Hillel Goldstein-whom I met-one of six Orthodox Jews picked out by Benjamin Smith on his shooting spree when he drove through a predominantly Jewish neighborhood in Chicago, hunting for Jewish families walking to the synagogue for temple services; and, Steven Kuo, another graduate student at the University of Illinois.

These five survivors and families brought a lawsuit. The case is not based on the fact that the gun was present and used in these crimes. The case against the manufacturer, Bryco Arms, is based on the intentional and reckless sales and distribution practices because Bryco took no reasonable steps to ensure that their guns were not diverted to prohibited customers.

Although Bryco asked the court to dismiss the case, the court ruled that a claim of public nuisance should go forward against this manufacturer.

In October 2000, the gun dealer, Robert Hayes of the Old Prairie Trading Post, was indicted on 13 counts of violating Federal firearms sale laws because he didn't get approval for the sales from the Illinois State Police before transferring guns to that trafficker, Fiessinger. The seventh count of the indictment concerned the gun used in the Benjamin Smith shooting spree.

Robert Hayes pled guilty to one count of making an illegal sale of a gun and was sentenced to 2 years of probation. Fiessinger also pled guilty and was sentenced to 10 months in prison and 2 years of supervised release.

Despite this acknowledgment of criminal activity by the dealer and the gun trafficker regarding the sale of firearms, the lawsuit brought by the victims of Benjamin Smith would be terminated by this bill. The families and the survivors from the shooting spree would have lost and will lose their right to go to court because this bill says that even if the manufacturer is irresponsible in distributing the weapons and the dealer is irresponsible in selling those weapons to a trafficker, this bill says they cannot be held accountable despite the fact that people died and were injured on this shooting spree. Although this gun dealer, Robert Hayes, pled guilty to making an illegal sale, the gun he pled guilty to illegally transferring was not the gun used by Benjamin Smith. That is crucial. Smith's gun was under count 7, an indictment Hayes did not plead to. Therefore, the criminal conduct of the dealer did not cause the shooting. So the exception in this bill would not help.

As a result, Hayes, the gun dealer, the Old Prairie Trading Post, was free to argue that the victim's case should be dismissed because he could not be held liable for the lawful sale of a gun. The court ruled against his motion and held that it would allow a claim for public nuisance and negligence to continue. If this case were frivolous, the court would have dismissed it. It was not frivolous. People were dead, injured, and someone should be held accountable for it.

Why, then, should we in Congress, in the Senate, step into this lawsuit, not only prospectively but retroactively, and say to the families of the victims that they have no right to go to court, to hold the manufacturer accountable for irresponsible distribution practices, they have no right to go to court, as this bill says, and hold a dealer responsible, a dealer that is literally feeding firearms and Saturday night specials to gun traffickers? That is what this bill says.

I point out the exceptions in this bill are so narrowly drawn that even if this gun dealer pled guilty to count 7 for not seeking approval from the Illinois State Police before the sale, the victim's case would still be terminated.

The third exception provided in the bill requires that the violation of law be a proximate cause of the harm for which relief is sought.

In this case, if Hayes, the dealer, had sought approval from the State police, the police would have granted it because Fiessinger was not a prohibited purchaser. Therefore, regardless of whether Hayes violated the law, Fiessinger would have been able to purchase the weapon and resell it to Smith. So there is no way around it.

This bill is designed to stop those families and those victims from holding an irresponsible gun dealer for peddling guns to a trafficker used in the commission of a crime.

The Senator from Ohio said it best a few minutes ago: It is an outrage that we would say, retroactively, we are going to throw these suits out of court; that we would say to these families, these crime victims, they will lose their day in court. Why? To protect a special interest group-gun manufacturers, gun dealers, and trade associations such as the National Rifle Association.

Take a step back for a moment and look at the big picture. We have a case that the court in Illinois has ruled is not frivolous, a gun dealer and trafficker who have already pled guilty to illegal firearms sales, and yet this legislation would close the courthouse doors for the tragic victims of this shooting spree.

Let me give one other case that amply illustrates why this bill is so bad. Michael Ceriale, a 26-year-old Chicago police officer, was shot by a 16-year-old member of the Gangster Disciples, one of the terrible street gangs that, unfortunately, wreak havoc on many neighborhoods of the great city of Chicago. This police officer, 26 years old, was killed conducting narcotics surveillance. Once again, the mere use of the gun is not the underlying cause of action. In this case, his family sued the manufacturer, Smith & Wesson for shipping the gun used to kill the officer to the distributor, Camfour. Smith & Wesson sold this weapon to Camfour, even though it knew or should have known that Camfour, the distributor, was part of a core group of irresponsible distributors that act as the initial distributors for nearly 80 percent of the firearms traced to crimes in the city of Chicago.

There is ample evidence that when we trace back crime guns, we find there are a handful of irresponsible gun dealers that are selling these guns on a wholesale basis to gangs and to gun traffickers. It is outrageous that this continues in this country.

For those irresponsible gun dealers, there is good news in S. 1805. You are off the hook. S. 1805, brought to us thanks to the National Rifle Association, says that if you are one of those irresponsible gun dealers selling to traffickers, selling to criminal gangs, shooting innocent children on the street, killing police officers, you are off the hook with S. 1805.

They argue it is part of your second amendment right to be able to sell guns on a wholesale basis to be used by criminal gangs across America. Incredible.

This Camfour, the distributor, then shipped the gun to Strictly Shooting, even though it knew Strictly Shooting was part of 24 gun dealers that were responsible for 27 percent of the crime guns recovered in the city of Chicago.

On August 15, 1998, the gun found its way into the hands of a Gangster Disciple gang member, who killed a 26-year-old Chicago police officer, Michael Ceriale. Unfortunately, this case, even though it has been upheld by the court of appeals in Illinois, would be dismissed because its cause of action is based on the claim of public nuisance, which does not fall into one of the narrow exceptions written into this bill.

Now, all who stood with pride and admiration for the men and women in uniform, those policemen and those firefighters who rose to the occasion on September 11 and protect us every single day, all Members in the Senate who say to these men and women that when they put their badges on in the morning as police officers and put their lives on the line that we can never thank them enough, all who give speeches back home about the law enforcement officers who keep our communities safe, should keep in mind that S. 1805 is a cop killer bill. S. 1805 says that cop killers such as the Gangster Disciple gang members who killed Michael Ceriale in the city of Chicago, those cop killers are going to get a free ride because of S. 1805. The family of this 26-year-old police officer, going to court to recover money for those irresponsible activities by the manufacturers, distributors, and gun dealers, will have the courthouse door slammed in their faces.

Cop killers will love this bill. Frankly, those that supply the guns to these cop killers should be ashamed of themselves and be held accountable. But they will not be.

So in those two illustrations from my home State, crime victims of a shooting spree will lose their right to go to court, to hold gun traffickers responsible under this bill, and the family of a fallen Chicago police officer who gave his life trying to stop the drug trade in that great city will have the courthouse doors slammed because the National Rifle Association wants this bill and wants it desperately. That is a sad commentary.

I remind my friends, do not stand before the Senate, saying how much you care about crime victims, how much you care about the police who risk their lives every day for us and then turn around and support this terrible legislation.

You cannot have it both ways. You cannot let guns flood America's streets to be used with criminal intent on a day-to-day basis, guns that are sold to criminal gangs, guns that are sold to deranged individuals. You cannot stand by and watch that happen and then protect those responsible for the sales with this legislation. That is exactly what is happening.

I thank the Senator from Rhode Island, Senator Reed. He has been a leader on this issue. We have talked about the DC sniper case, which I know will be addressed time and again during the course of this debate. I make it clear that this was no isolated case in the District of Columbia when these two men went on a shooting spree killing innocent people in every direction. Sadly, these things are being repeated over and over.

To my friends who are following this debate who are hunters, sportsmen, target shooters or own a gun for the self-defense of themselves and their family, I plead, stop for a moment and think about this. To protect your rights in America, to use guns legally and responsibly, you must tell those like the National Rifle Association, that their agenda on this issue is too extreme. What they are trying to do is to protect those who use guns illegally and irresponsibly. In their passion to do that they are jeopardizing your rights. They are raising a question which ultimately will come back to you, the legal owner of a firearm, as to whether or not we have gone too far in America.

We were told, of course, when President Bush was elected to expect this. The National Rifle Association would have its day. We were told they have a friend in the White House. It is abundantly clear that President Bush is going to sign this bill. But what is not clear to me is how my colleagues in good conscience can support this legislation. I cannot understand this. Day after weary day we come to the floor of the Senate and say that individuals across America are going to be denied the right which we have considered part of our American birthright, the right to walk into a courtroom, rich or poor, to stand before a judge in a court of justice, and to ask for fair treatment, to ask that others be held accountable, and to let that court, that judge, that jury make that decision.

Clearly, we are seeing, day after day, an attempt to erode that right to go before the jury of your peers, your neighbors, and to let them decide what is just and what is right. In this case, unlike the other cases, it is not just a matter of money, it is a matter of life and death-life and death for crime victims, life and death for police officers.

That is why the Major Cities Chiefs Association opposes this legislation. They know what this means. They know that police officers across America will be targeted because of this bill. They know their families, once they are killed in the line of duty, will have fewer options to turn on those who have used guns and those who have purchased guns illegally. They know that.

The Major Cities Chiefs Association, the Brady Campaign To Prevent Gun Violence-all of these organizations have made it clear this is a terrible bill. It is a bill that should be defeated. I sincerely hope my colleagues will join in support of stopping and thinking twice before they vote for its passage.

I yield the floor