S1532 CONGRESSIONAL RECORD — SENATE February 25, 2004 burst into applause as Senator Revels educational opportunity today is not ican and other minority children dis- became the first African American ever as obvious or virulent as it was before proportionately. This is not a partisan to serve in the Senate. Brown. We no longer tolerate laws that criticism. Republican legislators in Ar- Five years later, Mississippi sent say some children can be consigned to izona and Minnesota have introduced America its second African American second-rate schools and third- or bills that would allow their States to Senator, Blanche Kelso Bruce, the first fourth-rate futures. In fact, our laws partially opt out of No Child Left Be- African American to serve a full term today promise to leave no child behind. hind. They consider it an unfunded in the Senate. But the law is not being funded. It is a mandate. Although he served only 6 years, Sen- check written on insufficient funds. Legislatures in at least 10 other ator Bruce distinguished himself as a I was the first in my family to grad- States have adopted resolutions criti- passionate advocate of civil rights for uate from college. I could not have cizing the law and seeking waivers blacks, Native Americans, Chinese im- gone to college had it not been for the from parts of it. In Utah, a Republican- migrants, and even former Confed- ROTC scholarship I had. dominated House has voted not to im- erates. I voted for No Child Left Behind be- plement No Child Left Behind unless Besides Mississippi, there was an- cause I believe every child in America Federal funds are provided adequately. other bond that connected these ex- deserves the same opportunities I have States are being put in a horrible bind: traordinary men: a fierce commitment been given. I voted for No Child Left Accept huge, costly, unfunded man- to education. Behind because I know investing in the dates or give up tens of millions of dol- During the Civil War, Hiram Revels minds of young people is the smartest, lars or more in Federal education aid, not only raised two black regiments for most productive investment a nation much of which is intended and which the Union Army and fought at one of can make. I voted for No Child Left Be- works to close the achievement gap. the war’s bloodiest battles, he estab- hind because I support accountability Brown v. Board of Education is one of lished a school for freedmen in St. and because I have no doubt that stu- the most inspiring chapters in our Na- Louis. After serving in the Senate, he dents, teachers, principals, parents, tion’s history. It gave all American became president of a college in Mis- and school board members in South children the promise of equal edu- sissippi. Dakota and across the country can cational opportunity and the No Child Blanche Bruce was born a slave. His meet higher standards as long as they Left Behind Act reaffirmed that prom- first teacher was a tutor hired to teach are given the resources. ise in principle, but the promise is hol- his master’s son. At 20, he escaped slav- I voted for No Child Left Behind be- low unless we fund it. When the Senate ery and became a teacher in Missouri. cause President Bush gave his word debates the budget resolution, we will He later attended Oberlin College and that the law would be funded, but that be offering amendments to fully fund spent much of his life after the Senate is not what has happened. In the 2 the No Child Left Behind Act and to working to bring learning to former years since President Bush signed the make other critical investments in slaves, their children, and grand- law, he has proposed three budgets to education and training. children. Congress. All three times, the Presi- It is important we remember our his- It is fitting we remember these two dent has drastically underfunded his tory. It is also essential that we keep great men of history in this Chamber own education reform plan. The edu- our promises and invest in our future. where they made history, and it is es- cation budget President Bush rec- I yield the floor. pecially appropriate that we remember ommended for next year falls $9.4 bil- f them this year, on the 50th anniversary lion short of what was originally prom- RESERVATION OF LEADER TIME of Brown v. Board of Education, the ised in No Child Left Behind, $9.4 bil- Supreme Court ruling that declared lion less than what is needed to make The ACTING PRESIDENT pro tem- once and forever that in America, no it work. pore. Under the previous order, the child can be consigned to a second- The program that is most critical to leadership time is reserved. class school on the basis of race. closing the achievement gap between f All Americans—not just African minority and nonminority students, PROTECTION OF LAWFUL COM- Americans, all Americans—are the title I, is cut the deepest—more than MERCE IN ARMS ACT—MOTION beneficiaries of the Brown decision. It $7.1 billion below what the law prom- TO PROCEED has made America stronger spiritually ises. The President’s education budget by realigning our public institutions does not leave one child behind; it The ACTING PRESIDENT pro tem- with our great guiding principles. leaves 4.6 million children behind, and pore. Under the previous order, the It has also made America strong eco- a disproportionate number of them are Senate will resume consideration of nomically, socially, politically, intel- African American and members of the motion to proceed to S. 1805, which lectually, artistically, militarily, and other minorities. the clerk will report. The assistant journal clerk read as in so many other ways by requiring The President’s budget also makes follows: every child in America—every child— deep cuts in afterschool programs de- be given the opportunity to make the spite strong evidence that good after- Motion to proceed to the bill (S. 1805) to prohibit civil liability actions from being most of his or her God-given potential. school programs keep children safe and brought or continued against manufacturers, In this Black History Month espe- help them academically. It provides distributors, dealers, or importers of fire- cially, America remembers and honors less than half the share of special edu- arms or ammunition for damages resulting Thurgood Marshall and Linda Brown, cation costs the Federal Government from the misuse of their products by others. the giant at the head of the NAACP committed in 1975. It slashes career The ACTING PRESIDENT pro tem- brilliant legal team in Brown, and the and technical education. It eliminates pore. Under the previous order, the brave little 8-year-old girl at the cen- dropout prevention programs. Despite time until 10:30 a.m. will be equally di- ter of the case. We also remember and promising during the campaign of 2000 vided between the Senator from Idaho, honor all those who helped them—and and again last month in the State of Mr. CRAIG, and the Senator from Rhode there were many—because it takes the Union Address to raise the max- Island, Mr. REED, or their designees. many people of good will to right great imum Pell grant by $1,000, the Presi- Who seeks recognition? wrongs. But it is not enough to remem- dent’s budget actually freezes Pell The Senator from Idaho. ber great turning points in our past. grants next year for the third year in a Mr. CRAIG. Mr. President, the leader We should also rededicate ourselves to row. Three years ago, the maximum has obviously taken time. We thought the great principles at the heart of the Pell grant paid 42 percent of the aver- we were going to have an hour on each Brown decision. age annual cost of attending college. side. Is the vote still scheduled for This Black History Month, the right Today, it covers only 34 percent. 10:30, or does the leader’s time count in of every child in America to attend a The President’s neglect of education that? good school and get a good education, and his repeated refusal to fund even The ACTING PRESIDENT pro tem- regardless of race or income, is once his own educational plan is hurting pore. The vote will be at 10:30. The again in jeopardy. The threat to equal America. It is hurting African-Amer- time has been reduced proportionately.

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.003 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1533 Mr. CRAIG. I think we can live with I reserve the remainder of my time. It is no wonder the gun lobby dropped that. The ACTING PRESIDENT pro tem- this legislation in the 107th Congress, The ACTING PRESIDENT pro tem- pore. The Senator from Rhode Island. because we were paralyzed here in pore. For the information of the Sen- Mr. REED. Mr. President, I rise in Washington by a sniper—two snipers, it ators, each side will have 23 minutes. strong opposition to the so-called Pro- turns out—who killed people with Mr. CRAIG. I believe several of my tection of Lawful Commerce in Arms weapons that were obtained through colleagues will want to be on the floor Act. At a time when this country is the apparent negligence of a gun deal- to speak prior to the cloture vote. As faced with extraordinary problems— er. Yet these individuals, these victims the leadership has said, there is a clo- with economic problems, international and their families, would be denied the ture vote on the motion to proceed to problems—we are devoting very pre- right to go to court because of this leg- S. 1805, the Protection of Lawful Com- cious time to legislation that is in be- islation. merce in Arms Act. We will vote on half of a special interest rather than It is also ironic that this would be that at 10:30 this morning. dealing with the broader public inter- the first gun bill to be enacted since I regret that a few of our colleagues est, the economy of this country and Columbine, a situation in which, again, are forcing us to go through this proce- the international position and status of young people, disturbed young people, dural step instead of simply moving to this country. were able to go to a gun show using a This is not legislation that is de- the bill. This bill is supported by a straw purchaser, using the loophole signed to protect the courts. This is strong bipartisan majority in the Sen- that exists in buying weapons without legislation that is designed to protect ate, and I believe as we work our way a background check, and then went gun dealers, the gun industry, manu- through it, that kind of bipartisan re- into a high school in Colorado and facturers, and trade associations such lationship will clearly demonstrate wreaked havoc. Instead of closing the as the National Rifle Association. To itself. More than half the Senators, as gun show loophole, we are now trying suggest this is simply a response to po- I have said, both Republicans and to open up a huge highway for the neg- litically motivated cases flies in the Democrats, are cosponsors of our legis- ligence of gun dealers, negligence of face of cases that have been filed, like lation, including the leadership of both the gun industry. the cases of the victims of the sniper parties. A very similar bill passed in Talking about the procedural cor- shootings here in Washington, DC; peo- the House nearly a year ago by a 2-to- rectness of this approach, this legisla- ple like Bernice Johnson, whose hus- 1 vote margin, or nearly that margin. tion did not go through the Senate Ju- Some of our colleagues have already band was sitting on a bus reading his diciary Committee. There were no announced they intend to play politics paper waiting to go on and run his hearings, no committee markups were with this bill instead of debating its route that day and was killed. It subse- ever scheduled. This very complicated merits. They have already announced quently turns out the weapon that was issue of balancing the rights of plain- their intention to throw a variety of used in this crime came from a dealer tiffs versus the rights of defendants in nonrelated bills or amendments at this in Washington State who apparently the context of civil litigation was important—the legislation my guess is couldn’t account for 238 weapons. Mrs. never fully assessed through hearings. to attempt to divert the legislation and Johnson is not suing to make a polit- delay the completion of its consider- ical point. She is suing simply because Now we are here and now we must have ation. However, I believe this morn- she lost her husband, the father of her a vigorous debate on this legislation. ing’s vote will demonstrate that a ma- children, and she would like to hold re- We must not only look to the specifics jority of the Senate is, indeed, ready to sponsible those people who were neg- of this legislation but also to its im- proceed to this bill and to debate it, as ligent. pact across the country and address we should, offer legitimate amend- The suggestion that this is a minor some larger issues of gun violence in ments, debate those amendments fully, exception to the law when people are the United States. and vote them up or down if necessary. acting legally, following a statute, flies Two years ago or so, it was the Wash- This legislation addresses a crisis in in the face of our concept of civil li- ington area snipers who paralyzed this our courts and the integrity of our ability. It is not a question of just fol- country, certainly paralyzed this area courts because our courts are now lowing the law. It is also a question of of the country. Today there is appar- threatened by the kind of lawsuits that being responsible for your actions, of ently one or perhaps more gunmen who are simply not necessary but politi- not being negligent, of taking due care are stalking innocent people on the cally motivated. For a long time, the in the performance of your legal duties. highways of Ohio. trial bar has attempted to use the This whole approach is something I Gun violence exists and we should do court system to legislate social policy think flies in the face of basic common more to stop it. We should use this op- or legal activity in this country. What sense and the basic law of this country. portunity to pass provisions that will this bill does, and what we have We are struggling with huge prob- close the gun show loophole, that worked to do and why it has gained the lems across this Nation. Yet we are would reauthorize the ban on assault support it has, is craft a very narrow spending precious time here to try to weapons that has operated in the last exception in the law so that we still deal with the interests of a special few years at least to keep the most hold those responsible accountable for group of people, a very influential dangerous weapons out of the hands of their actions under all laws. group of people. We are not out pro- some very dangerous people. We should What we have always said within the tecting the rights of Mrs. Johnson and require effective safety locks on hand- law is that someone cannot be held ac- others bringing this suit. We are pro- guns. We should improve the national countable for someone else’s actions, tecting the rights, frankly, of the gun instant criminal background check and if someone is attempting to reach industry to be negligent and harm peo- system so there is a more accurate and back through the law when someone is ple through their negligence. more effective system of checking. innocent and legal in their acts, then This legislation is not a minor, care- These are the things we should be that kind of thing ought to stop. That fully crafted exception. It would wipe doing and I hope we can have an oppor- is why we have worked hard to craft it out virtually every opportunity to as- tunity to offer amendments in this re- narrowly. sess whether a gun dealer, a gun manu- gard. Every day there are hundreds of I think Americans clearly understand facturer, or a trade association was thousands, millions of families who what we are attempting to do, and that negligent in their activities. It would struggle to do all they can to protect is our goal. I hope my colleagues will bar virtually all negligence for product their children and themselves. Here we vote in favor of cloture so that we can liability in State and Federal courts are telling the gun industry: Don’t join get into the full and robust debate of and throw out all pending cases, cases that effort to make people safer. You this legislation. It is important. that have already been filed prior to can ignore reasonable, responsible ac- I will turn to my colleague, Senator this date, prior to the potential enact- tions. You can be negligent and you REED, who will be handling the opposi- ment of this legislation. It is a sweep- will not be brought to justice. tion, and then I believe at that time we ing immunity to gun dealers, gun man- I think that is wrong. I think that is will probably have several of our col- ufacturers, and even trade associations bad law, bad public policy. I urge my leagues who wish to speak to it. such as the National Rifle Association. colleagues to oppose this legislation, to

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.005 S25PT1 S1534 CONGRESSIONAL RECORD — SENATE February 25, 2004 oppose this motion to go forward. energy bill. As my colleague may General Aviation Aircraft, over 18 There are much more pressing demands know, I offered the securities reform years old, that has special protection. in this country we should address bill, the National Standards legisla- That is a very narrow protection, and I today: the unemployed, those who are tion, Y2K, terrorism insurance. I am think it is nothing like contemplated struggling to find jobs in a jobless also a strong advocate of class action in this legislation. economy; funding fully our national reform. I am not an opponent at all of I must also note those aircraft are defense. We have a budget that was trying to reform the tort system. But supervised by the FAA. There is sig- presented to us that does not include the idea that we would eliminate an nificant Federal involvement in the de- any money for Iraq and Afghanistan. entire industry from liability due to sign and airworthiness, things that do That is something we should be focused the potentiality of their products for not apply at all to a weapon. on today. causing great harm is amazing to me. Mr. DURBIN. If I may ask the Sen- Mr. DODD. Will my colleague yield? Given the challenges our country faces, ator a further question, if he will yield Mr. REED. I am happy to yield. it is amazing we would spend time on for a question, is it my understanding Mr. DODD. I commend my colleague this legislation. if we pass this bill that individuals—for for his statement this morning. I want Mr. DURBIN. If the Senator will example, the victims of the District of to underscore the last point he is mak- yield, I thank the Senator from Rhode Columbia snipers—who are going after ing. Island for his leadership on this issue. gun dealers who were selling massive Here we are with the highest unem- I worked with him and I will continue. amounts of weapons which they could ployment figure since the Great De- I would like to ask him this question. not even account for, that we may in pression and we are debating the gun Am I correct that yesterday the item fact eliminate the lawsuits brought by issue. I come from a State that prob- of business before us was to exempt in- the surviving families of the DC snipers ably has more manufacturers of guns dividuals who had been held liable for against the gun dealers who were just than any other in the country. I think creating medical injuries from their negligently and wantonly selling guns Connecticut is still the largest manu- full accountability and liability in without any consideration as to wheth- facturer. The idea we are going to take medical malpractice, including phar- er they could be misused? an entire industry and exclude it from maceutical companies and medical de- Mr. REED. That is my under- liability should there be a just cause to vice companies? That was the item on standing. It is not only my under- bring them to a bar of justice is rather the agenda yesterday. Now, today, we standing, but it is the understanding of remarkable to me in light of every- are taking up the exemption from li- various counsel who looked closely at thing else going on in the country. So ability for gun manufacturers and deal- this legislation and rendered an opin- I commend my colleague from Rhode ers. Does the Senator from Rhode Is- ion to that effect. Island. We come from the same region land detect a pattern here, that each Mr. DURBIN. If the Senator would of the country. We have lost 45,000 jobs day of the week we are going to try to further yield for a question, we had two in my State in the manufacturing sec- single out another special interest individuals we believe who were abso- tor in the last 30 months. I ask wheth- group and give them an exemption lutely terrorizing the Washington, DC er, in his view, there aren’t higher pri- from accountability and liability in area and killing people with sniper ri- orities we ought to be addressing other courts in America? fles. Then we identified where that rifle than excusing an entire industry from I think he is accurate in his descrip- was purchased and found out this liability against negligence? tion of what we have been doing in the Bull’s Eye dealer—whatever the name Mr. REED. Reclaiming my time, I last couple of days, which is trying to was—was not even keeping good agree entirely with the Senator from not provide for the public interest but records of the guns that were being Connecticut. Rhode Island, like Con- to protect special interests, and not to sold. The families of the victims who necticut, is seeing its manufacturing provide individual citizens a right, re- were killed by the DC snipers believe base evaporate. These are real prob- gretfully, when they have been harmed, the gun dealer should be held liable and lems. These are problems that affect at least a right to make a determina- accountable for its negligence in sell- families throughout this country. This tion of who should be held liable, but ing guns without keeping the records is truly in the public interest, finding simply and categorically strip away that are required. And the Senator an answer to disappearing jobs these rights and to protect industries from Rhode Island is telling me we are throughout the country. Yet today we that have powerful influence in Wash- bringing a bill to the floor of the Sen- want to protect one very special inter- ington. ate to exempt the gun dealer who sold est. Mr. DURBIN. Mr. President, I ask the the weapon that killed these innocent Let me add, too, as the Senator Senator: Did he not say this bill has people in the Washington, DC area points out, not only are we trying to never gone through a committee for from liability. Is that what this debate give an unprecedented immunity to hearings and for our close scrutiny in is all about? one industry, this industry is virtually determining exactly what the impact Mr. REED. That is my view entirely. unregulated in the sense of other in- would be? That is what this legislation will ac- dustries. It is not controlled by the Mr. REED. Mr. President, the Sen- complish. It will not only prospectively Product Safety Commission, which ator is right. There have been no hear- provide barriers to the courts for vic- would look at the product design. So ings. This bill has been brought to the tims of negligence like this, but it will one of the only recourses an individual floor directly. That is why it is incum- reach back and protect these individ- has with respect to negligence claims bent for us to take a greater amount of uals who apparently—at least argu- is through the courts. Here we are time to look over the bill. ably—were negligent in not properly eroding that avenue. Mr. DURBIN. If the Senator will controlling over 230 weapons, not just Mr. DODD. I thank my colleague. If yield for a further question, if we look the one the snipers used, which dis- he will yield further? at existing law in America and at com- appeared. Mr. REED. I will. panies, manufacturers, and interest Mr. DURBIN. I ask the Senator from Mr. DODD. I thank my colleague. I groups that are currently exempt from Rhode Island: If we are going to decide will join him in opposing cloture on being held accountable in a courtroom to pass laws here on a daily basis to ex- this bill and I hope the leadership for misuse of their products or selling a empt companies across America from would move on with another issue that product, the only one I can think of is being held accountable for their neg- I guarantee has a far higher priority the Price-Anderson law relative to the ligence and for wrongful conduct, does with the American public than to sat- nuclear power industry. There are a lot the Senator from Rhode Island share isfy one industry’s fear that they of different exceptions where we have my belief this is going to become an might have to appear before the bar of said you can’t be sued no matter what auction process where the Senate, justice to explain their behavior. The you do. Is there a long list we are add- frankly, will decide which special in- idea we would exclude this industry— ing to with this legislation? terests we will honor on a weekly basis we tried to do that on another issue on Mr. REED. The only exception other to make certain they cannot be held the MTBE issue that came up on the than Price-Anderson I can think of is accountable by a jury of their peers

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.008 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1535 and by judges so that individuals who ate not to protect gun dealers who arm yers and their allies in this chamber. were wronged, like the victims of the killers. Just yesterday we failed to reach clo- District of Columbia snipers, will even- Mr. REED. I am aware of that. In the ture on medical liability reform that tually find they have no recourse? course of this debate, I hope we can would protect our mothers and their They cannot go to the White House on emphasize that point. children. We have been blocked from a gun issue because the President is on I retain the remainder of my time enacting broader medical liability re- the side of the gun lobby. They cannot and yield the floor. form. The ACTING PRESIDENT pro tem- go to Congress which is controlled by And we saw this drama played out Members who apparently pay a lot pore. The Senator from Idaho. Mr. CRAIG. Mr. President, before I last year with the Senate’s failure—by more attention to the gun lobby than one vote—to end a filibuster of the gun victims. So we are closing the yield to the Senator from Texas, let me make a couple of comments in response Class Action Fairness Act and give the courthouse doors to the victims of gun bill a vote on the floor. Despite the fact violence by the passage of this legisla- to what my colleagues have been say- ing this morning. that a bipartisan majority stands tion. ready to pass that bill, the obstruc- Mr. REED. I think the Senator is en- Let’s take the gun dealer in Tacoma, WA who is alleged to have sold to the tionist opposition prevents us from tirely correct. His insight also is accu- acting. rate in that I cannot see that other in- sniper who held this area hostage for a dustries, if we pass this, won’t come to time with a gun. His license has been I believe our civil justice system is us and say, We have very valid reasons, revoked. There is a criminal investiga- badly broken. It serves the interests of too. We are being assailed every day by tion, and BATF has asked the Justice the few at the expense of the many. It these claims. This sets a very dan- Department to file felony charges has become almost entirely directed gerous and very unfortunate precedent. against the dealer. The business is now not at dealing out justice, but at find- Mr. President, how much time do I closed and broke. ing as many scapegoats as possible, the have remaining? In other words, what I am saying is if wealthier the better. The ACTING PRESIDENT pro tem- this licensed gun dealer violated cur- It used to be that if you slipped and pore. Six minutes 20 seconds. rent law, he will be shut down. What fell on a sidewalk, you picked yourself Mr. DODD. Mr. President, will my we are talking about here again is a up and kept on walking. But nowadays, colleague yield for an additional ques- narrow piece of legislation that deals far too many trial lawyers continue to tion? I was curious whether my col- with civil liability—not product liabil- feed the idea that instead of getting up league would share with us what prob- ity—and in the case of current Federal again, you ought to sue the maker of lem this legislation seeks to solve. law it does not touch it. The day in the sidewalk for making it too hard, Normally, when you bring a bill to the court comes. the maker of your shoes for not put- But what the Senator from Con- floor you try to solve the problem. I ting enough ridges on your soles, and necticut didn’t say is even his own gun wonder if my colleague has any idea of everyone in your near vicinity for not manufacturers and their associations the volumes of lawsuits that have been rushing to catch you as you fell. After in those some 30-plus lawsuits have brought against gun manufacturers all, there is money to be made. that the author of this legislation is spent millions and millions of dollars The current system rewards lawyers trying to solve. before the court system defending Mr. REED. Very few suits have been themselves, and to date the judges and short-changes the real victims. filed. There is not an epidemic have thrown them out. This is called There is no doubt that this system of throughout the Nation, but probably ‘‘death through attrition’’ by simply over-litigation cannot last without the best evidence is from the compa- taking to the courts and constantly more negative results. And without re- nies themselves. Let me make ref- bringing to the courts these kinds of form, I fear the entire system will col- erence to the 10–K report on weapons. arguments. Here is the reality. lapse under its own weight. In the opinion of management, after con- Mr. DODD. Mr. President, will the Today, the Senate has the oppor- sultation with special counsel, it is not prob- Senator yield? tunity to take a step in the right direc- able and is unlikely that the outcomes of Mr. CRAIG. I can’t yield at this time. tion on this problem, by passing the these claims will have a material adverse ef- My time is limited. We are going to be Protection of Lawful Commerce in fect on the results of the operations or the fi- on this for days, as the Senator knows. Arms Act. nancial condition of the company as man- We will debate it thoroughly. This bill is simple: it provides that agers believe it has provided adequate re- But what he is suggesting is running lawsuits may not be brought against serves. the risk of losing all of his gun manu- lawful manufacturers and sellers of So in 10 cases, in the statement re- facturers and the hundreds of jobs that firearms or ammunition if the suits are quired to be sworn to under the securi- are out there. He is concerned about based on criminal or unlawful use of ties laws, Smith & Wesson and other jobs. I think he would be concerned the product by someone else—when a companies have essentially said there about keeping the jobs he has in his criminal, not the manufacturer, com- is not a material problem. home State. That is part of this discus- mits a crime. At this point, because I know there sion. are other speakers who would like to Mr. DODD. Will the Senator yield? Such lawsuits are not intended to respond—— Mr. CRAIG. I can’t yield. Time is find real fault, but to play on the emo- Mr. DODD. If the Senator will yield limited. tions of a jury and drive the gun indus- for one more additional question, I Mr. DODD. The Senator made ref- try out of business, holding legitimate, want to make the point that my col- erence to the Senator from Con- law-abiding manufacturers and dealers league is absolutely correct. necticut. liable for the intentional and criminal Further, is he aware that over the Mr. CRAIG. I did it fairly. You are acts of others. last 10 years there have been 33 cases here on the floor. We will talk about brought by municipalities—one in the This bill reinforces years of legal this more in the hours to come. precedent—that individuals and busi- State of New York—and none of them Let me yield to my colleague from nesses are responsible for the harm have resulted in conclusions that have the great State of Texas. been harmful to the gun manufacturing The ACTING PRESIDENT pro tem- they case, not for the actions of third industry? With a population of 280 mil- pore. The Senator from Texas. parties over whom they have no con- lion people, there have been 33 or 34 Mr. CORNYN. Mr. President, I rise to trol. cases in almost 10 years, not one of say a few words on our broken civil jus- Many Judges across the Nation rec- which has resulted in an adverse deci- tice system. Today we are debating yet ognize the ridiculous nature of these sion for the manufacturers. Is my col- another common sense reform pro- suits. The Louisiana Supreme Court league aware of that? posal, the Protection of Lawful Com- struck down New Orleans’ right to Mr. REED. I am aware of it. The Sen- merce in Arms Act. bring such a suit in the face of State ator is correct. We think there are less Despite many recent opportunities, law forbidding it, and said ‘‘this law- than 100 cases. Congress has been unable to enact suit constitutes an indirect attempt to Mr. DODD. The police chiefs from meaningful tort reform, largely be- regulate the lawful design, manufac- across the country are urging the Sen- cause of strong resistance by trial law- ture, marketing and sale of firearms.’’

VerDate jul 14 2003 05:07 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.011 S25PT1 S1536 CONGRESSIONAL RECORD — SENATE February 25, 2004 In dismissing New York State’s case with the integration of Project Safe not a wedge issue which, clearly, there last year, a New York appellate court Neighborhoods with the existing Texas is an attempt to inject wedge politics observed ‘‘the plain fact that courts Exile infrastructure. in this debate. But it was an issue are the least suited, least equipped, and These are the kinds of steps that get which everyone could agree: The NRA, thus the least appropriate branch of real results, not ill-intentioned frivo- the gun control folks, everyone came government to regulate and micro- lous lawsuits. I question the integrity together and said, yes, that is what we manage the manufacturing, marketing, of any system that would reward such ought to do. Let’s focus on the crimi- distribution and sale of handguns.’’ abject agreed. We need to work in this nals who misuse this product. Thankfully, many States are acting: body to fix our broken civil justice sys- Indeed, in 2001, Texas led the Nation 33 States have enacted some form of tem, and this bill is a good place to in the number of criminal defendants legislation to prevent junk lawsuits start. who were indicted for weapons viola- against the firearms industry based on I am somewhat bemused by the argu- tions in Federal court. In 2000, there the criminal behavior of others. We ments I have already heard this morn- were 757 in that year alone, which was must follow the lead of the majority of ing on this motion to invoke cloture. almost double the number of indict- States, and pass this common sense In fact, we want to have a debate. ments in 1999. This amount was greater measure. Those who oppose even having a debate than the number of defendants indicted Don’t allow any illusions about the are, I guess, not going to allow it to on similar charges in the States of New intentions of the people involved in happen. I hope they are not successful York and California combined. these suits. At an American Bar Asso- in blocking debate. It is healthy to How were we able to use the existing ciation symposium in 1999, one of the have a debate. criminal law in a way that made our plaintiffs’ attorneys for the antigun I am bemused by the suggestion that streets and our communities and our lawsuits explained that the attorneys this is a narrow bill directed toward States safer? We simply enlisted the had read the Dun & Bradstreet reports special interests. Yesterday, we had a help of local law enforcement to work on the firearms companies, estimated narrow bill to protect the special inter- with Federal law enforcement authori- how much the companies could spend ests known as pregnant women and ties so when a criminal was caught ille- defending themselves against litiga- children. However, the trial lawyers gally possessing a firearm—illegal be- tion, and then filed so many cases in so prevailed and we were unable to get cause a felon cannot legally possess a many jurisdictions that the gun com- that commonsense tort reform measure firearm—or someone under a protec- panies would not be able to spend the on the floor for debate. I submit that tive order—it is a Federal offense to money to see the cases through to a the suggestion is misguided that this is carry or possess a firearm when you are under a protective order—or some- verdict. The irresponsible tort commu- a special interest piece of legislation. one who simply used a gun to commit nity is simply looking for another law- This is in the public interest. a bank robbery or any other offense, we abiding business to prey on. I suggest the worst thing about the And even if all the gun companies in arguments we hear from the other side focused on the gun possession portion America were put together, they would of this debate is they are misdirected. of that and were successful in leading not constitute a single Fortune 500 In other words, they contend this bill the Nation in the number of prosecu- company—so the gun companies are would immunize lawsuits against gun tions. That sends a very powerful mes- sage that if you carry a gun illegally or much more vulnerable to abusive liti- manufacturers for what is a lawful ac- if you use a gun illegally to commit a gation than deep-pocketed giants such tivity. The fact is, there is a shrine in crime, then we are coming after you as the New York Times. our Constitution, the right of the peo- The real way to stop gun crime in ple to keep and bear arms. What they with everything that the law allows. It is a powerful deterrent to the sort America is simple: those who abuse the are trying to do would have the effect of illegal conduct that causes the harm constitutional right to keep and bear of impeding and impairing that con- that the opponents of the bill—and I arms by using firearms to commit stitutional right because, as Senator grant their good faith; I think they be- crimes must be aggressively prosecuted CRAIG has pointed out, there have been lieve in good faith that what they are and punished. When I was Attorney many lawsuits filed against gun manu- proposing is a path to a good result, a facturers for the very fact of making a General of Texas, I joined with then- sound result—that is reducing injuries, lawful product, none of which, so far as Governor Bush to launch a program we reducing death, but it is misguided. All I understand, has been successful but called Texas Exile. That program pro- this does is encourage lawsuits against which are destroying these companies vided local prosecutors with the funds a manufacturer of a legal product when to get more than 2,000 guns off the which are in the business of manufac- someone criminally misuses that prod- streets and to issue more than 1,500 in- turing a lawful product, destroying uct to cause another person harm. dictments for gun crimes, resulting in jobs, and impairing ultimately the con- As the Senator from Idaho has noted, almost 1,200 convictions in its first 3 stitutional right of citizens, people like this is death by 1,000 cuts or death by years of existence alone. you, me, and others in this room from 1,000 lawsuits, so to speak, because And when President Bush came to owning firearms to protect our homes anytime a gun manufacturer is sued, Washington, he built upon our success and our property, our families for use even with a frivolous lawsuit, they in Texas by making Project Safe in sporting events, for hunting, and have to hire a lawyer, they have to de- Neighborhoods one of his top priorities. other lawful and decent activity. fend that case at greater expense which Project Safe Neighborhoods expands on The focus of the opponents of this threatens their economic viability existing programs that target gun bill is totally misguided. What we which in turn threatens the jobs of the crimes in each State. It is a nationwide ought to focus on is the criminals who people who work there in that com- commitment to reduce gun crime in use firearms illegally to commit pany. America by networking these existing crimes. In fact, I have had a little expe- I wish we could have a broader debate local programs and providing those rience in this area as attorney general on commonsense tort reform generally, programs with the additional tools nec- of Texas. With the cooperation of then- but we have seen what happens when essary to be successful. Governor Bush, we created a program we try to raise these issues. We could The Bush administration has com- in Texas called Texas Exile. I wish we not even get cloture on a class action mitted more than $900 million to this could claim we originated the idea but reform bill. We have not been able to effort over three years, using funding we borrowed the idea from Richmond, bring up asbestos reform which is dam- to hire new Federal and State prosecu- VA, something called Project Exile, aging a lot of good job providers in this tors, support investigators, providing which was a cooperative effort of local, country and not benefiting the people training, distribute gun lock safety State, and Federal law enforcement of- who are truly sick but only the lawsuit kits, deter juvenile gun crime, and de- ficials to target criminals who use guns industry which benefits from churning velop and promote community out- to commit crimes and convicted felons the cases without really benefiting the reach efforts as well as to support who could not even legally own a fire- people who need compensation. other gun violence reduction strate- arm. The great thing about that was, We found in almost every instance— gies. And Texas has seen great success No. 1, it was so successful; No. 2, it was medical liability, class action reform,

VerDate jul 14 2003 05:07 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\A25FE6.003 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1537 or asbestos reform—we are simply not seconds. And 4 minutes 17 seconds are consumer industries that are not sub- able to even get a debate. We cannot remaining for the minority. ject to Federal consumer safety regula- even get cloture because we cannot Mr. CRAIG. I will reserve the remain- tions. America does more today to reg- find 60 people in the Senate who are der of my time. ulate the safety of toy guns than real willing to stand up and say this is a se- The ACTING PRESIDENT pro tem- guns, and it is a national disgrace. rious problem. It is raising the costs of pore. Who yields time? The gun industry has worked hard to health care. It is bankrupting compa- Mr. REED. Mr. President, I yield prevent Federal consumer safety legis- nies in the case of asbestos. It is an such time as he may consume to the lation. At the same time, it has con- abuse of the class action system in the Senator from Massachusetts. spicuously failed to use technology to case of class action reform where law- The ACTING PRESIDENT pro tem- make guns safer, and it has attempted yers get millions and consumers get a pore. The Senator from Massachusetts. to insulate itself from its distributors Mr. KENNEDY. Will the Chair notify coupon. and dealers, once the guns leave the me when I have a half minute left? So the strategy has been, and it is a factory. Mr. President, at a time when capitu- good strategy, to try to identify cer- Now it wants to become the only in- lation to special interest groups is a tain types of cases. Yesterday it was dustry in the Nation exempt from law- major issue in the Presidential election obstetrical liability cases which have suits. The overwhelming majority of campaign, it is difficult to believe that threatened the ability of pregnant Americans believes that gun dealers the Republican leadership in the Sen- women to find doctors to simply de- and gun manufacturers should be held ate is serious in asking the Senate to liver their babies. responsible for their irresponsible con- accept this flagrant special interest I recounted in my own State in 154 duct, like everyone else. legislation. I urge my colleagues to different counties a woman cannot The ACTING PRESIDENT pro tem- break the stranglehold of the gun in- even find a doctor to deliver her baby, pore. The Senator has 30 seconds re- dustry and gun dealers and oppose pro- an obstetrician, because people are maining. ceeding to this shameful legislation. leaving the practice. It is pricing out of Mr. KENNEDY. Surely, the Repub- The list of issues that demand the reach health care liability insurance, lican leadership has higher domestic Senate’s immediate attention is long. putting people out of business, hos- priorities than providing legal immu- Unemployment is a crisis for millions pitals out of business, and we are sim- nity for the gun industry. Surely, we of citizens. Retirement savings are dis- ply seeing the tail wag the dog in each can do better than debate this extraor- appearing. School budgets are plum- of these areas. The tail seems to be the dinarily reckless and unprecedented meting. College tuition is rising. special interest groups that like the special interest legislation. Health care costs and prescription drug status quo, which is a broken civil jus- I withhold the remainder of my time. costs are soaring. Federal budget defi- tice system that does not serve justice. The ACTING PRESIDENT pro tem- cits extend as far as the eye can see. I commend the Senator from Idaho pore. Who yields time? for bringing up this bill which admit- The war in Iraq has brought new dan- There are 16 seconds remaining for tedly is a narrow bill. Boy, I wish we gers, imposed new costs, and more and the Senator from Rhode Island and 5 could have a broader debate on tort re- more American lives are being lost minutes 13 seconds remaining for the form, commonsense tort reform gen- each week. Senator from Idaho. The well-being of most American erally. When we talk about what Mr. CRAIG. Mr. President, if the Sen- families has declined at an alarming causes job loss in this country, it is the ator wants to make his closing com- rate in the past 2 years. We can and regulation by litigation, it is the tort ments before I make mine, what time should be acting to meet these chal- tax that imposes additional costs on does he have left? lenges. Instead, the Republican leader- consumers and discourages innovation The ACTING PRESIDENT pro tem- ship wants to spend time on this fla- and entrepreneurs in this country. We pore. Sixteen seconds. are not talking about locking the grant pro-special-interest, anti-victim, Mr. CRAIG. All right. It is obvious, courthouse door and denying someone anti-law-enforcement legislation to Mr. President, by those who have al- access to justice. I believe strongly we give broad legal immunity to the gun ready come to the floor, that this will must retain meaningful access to jus- industry. be a very spirited debate. The great This bill’s proponents claim they are tice for anyone who is harmed by the tragedy of debates such as this is that targeting ‘‘frivolous lawsuits.’’ But we wrongful conduct of any other person. they oftentimes fail to read the bill be- all know that its real effect would be But the system right now benefits the fore them, and they make the kinds of to prevent victims of gun violence—po- few at the expense of the many in ways salient political statements that have lice officers, innocent bystanders, and that I doubt consumers really under- nothing to do with the legislation at their families—from pursuing valid stand because it adds costs to their all. claims in State and Federal courts. products, and it makes it harder for en- I invite my colleagues, on S. 1805, to trepreneurs and small businesses to This special interest bill is a direct attack on the interests of law enforce- go to section 4 of the bill and see how open their doors and to hire people to narrowly we have crafted this bill to go allow them to provide for their fami- ment. Police Chief William J. Bratton of the Los Angeles Police Department directly at civil lawsuits that involve a lies. third party criminal act and trying to So here we are, rather than taking on recently told it like it is: reach back through the courts and a broader tort reform bill, we are left To give gun manufacturers and gun dealers back through the law to say to a li- with a narrow bill. I congratulate the immunity from lawsuits is crazy. If you give censed, legitimate, legal firearms deal- Senator from Idaho for it. I believe we them immunity, what incentive do they have er or a licensed, legal gun manufac- should protect manufacturers of lawful to make guns with safer designs, or what in- centive do the handful of bad dealers have to turer that they have to be responsible products whose products are misused follow the law when they sell guns. for the criminal act of another. That by criminals. Let’s focus on the crimi- simply has not been the basis of law in nals, not the people who are providing The bill would prevent the families of jobs and are producing a lawful prod- the victims of the DC snipers from our country ever, nor should it be al- uct. holding accountable the gunshop in the lowed to be the basis of law today. With that, I yield back any remain- State of Washington that somehow But if that gun manufacturer and if ing time I have to the Senator from ‘‘lost’’ the assault rifle that was used that licensed gun dealer violate civil Idaho. in the attacks. Under current law, if law, violate the law of the land, then The ACTING PRESIDENT pro tem- negligence is proved, the families of this bill does not hold them harmless. pore. The Senator from Idaho. the victims are entitled to seek re- That is the crux of the issue. That is Mr. CRAIG. Mr. President, I thank dress. If this bill is enacted, the gun- what is important about this legisla- the Senator. shop will be totally immunized from li- tion. May I inquire of the time remaining ability, and the families’ lawsuits will There are a lot of ways to achieve a for both sides? be thrown out. political goal in this country. Many The ACTING PRESIDENT pro tem- Unbelievably, the gun industry and have found that you can file frivolous pore. The majority has 5 minutes 40 the tobacco industry are the only two and junk lawsuits in the court, and you

VerDate jul 14 2003 05:07 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.014 S25PT1 S1538 CONGRESSIONAL RECORD — SENATE February 25, 2004 have found that you can file frivolous The ACTING PRESIDENT pro tem- Crapo Inhofe Pryor Daschle Jeffords Reid and junk lawsuits in the court, and you pore. The Senator from Rhode Island. Dayton Johnson Roberts can slowly but surely bleed down those Mr. REED. Mr. President, the legisla- Dole Kohl Rockefeller who you file them against because they tion before us is a benefit to special in- Domenici Kyl Santorum have to come and defend themselves, terests, the gun lobby. It will deny in- Dorgan Landrieu Sessions Ensign Leahy Shelby even though the courts constantly dividual Americans the right to go to Enzi Lieberman Smith throw out these lawsuits. Hundreds of court to challenge the conduct of indi- Feingold Lincoln Snowe millions of dollars have already been viduals who negligently or allegedly Fitzgerald Lott Specter Frist Lugar Stabenow spent by legitimate gun manufacturers negligently sold weapons. It would be a Graham (SC) McCain Stevens that make those fine weapons for our great distortion of the law. I hope my Grassley McConnell Sununu men and women in Iraq, that make colleagues will resist this legislation. Gregg Murkowski Talent those fine weapons for our civil law en- Hagel Nelson (FL) Thomas CLOTURE MOTION Hatch Nelson (NE) Voinovich forcement officers wearing the blue The ACTING PRESIDENT pro tem- Hutchison Nickles Warner uniforms on the streets of America. pore. The hour of 10:30 having arrived, NAYS—22 They would say to them: No, we are under the previous order the clerk will going to bust those companies. And Akaka Feinstein Mikulski report the motion to invoke cloture. Boxer Graham (FL) Murray guess where that cop is going to get his The assistant legislative clerk read Cantwell Harkin Reed gun. From China or Yugoslavia. Or our as follows: Clinton Hollings Sarbanes men and women in uniform are going Corzine Inouye Schumer CLOTURE MOTION to have to rely on foreign gun manu- DeWine Kennedy Wyden Dodd Lautenberg facturers because we have bankrupt We the undersigned Senators, in accord- ance with the provisions of Rule XXII of the Durbin Levin and thrown out of this country those Standing Rules of the Senate, do hereby NOT VOTING—3 acting under the law in a legitimate move to bring to a close debate on the mo- Edwards Kerry Miller way. tion to proceed to Calendar No. 363, S. 1805, That is what S. 1805 is about. It is not a bill to prohibit civil liability actions from The ACTING PRESIDENT pro tem- about the political agenda of many. It being brought or continued against manufac- pore. On this vote, the yeas are 75, the is about what we have said in this turers, distributors, dealers, or importers of nays are 22. Three-fifths of the Sen- country is a legitimate product. We firearms or ammunition for damages result- ators duly chosen and sworn having even said so in the Constitution. Most ing from the misuse of their products by oth- voted in the affirmative, the motion is ers. agreed to. other products we do not talk about in Bill Frist, Orrin Hatch, Mitch McCon- the Constitution. They were not in- nell, Larry Craig, Jim Talent, John En- Mr. KENNEDY. I suggest the absence vented. But we did speak to guns and sign, John Cornyn, Conrad Burns, of a quorum. their value in this country. Now we are Saxby Chambliss, Craig Thomas, Don The ACTING PRESIDENT pro tem- saying: No, we are going to play the po- Nickles, Rick Santorum, Trent Lott, pore. The clerk will call the roll. litical game. We are going to drag John Sununu, Mike Crapo, Lamar Al- The assistant legislative clerk pro- them through the courts. And they are exander, Wayne Allard. ceeded to call the roll. going to spend all kinds of money to do The ACTING PRESIDENT pro tem- Mr. CRAIG. Madam President, I ask so. pore. By unanimous consent, the man- unanimous consent the order for the I am not willing to hold anybody datory quorum call has been waived. quorum call be rescinded. harmless who violates the law. I am The question is, Is it the sense of the The PRESIDING OFFICER (Ms. MUR- not willing to hold anybody harmless Senate that debate on the motion to KOWSKI). Without objection, it is so or- who allegedly acts in a criminal way. proceed to S. 1805, to prohibit civil li- dered. Let’s find out if they did. The court- ability actions from being brought or Mr. CRAIG. Madam President, I hope house door is not locked by S. 1805. The continued against manufacturers, dis- now, with a vote of 75 to 22, we could courthouse door is still open. This law tributors, dealers, or importers of fire- move on to the bill. Certainly, it is our will be applied in arguments before the arms or ammunition for damages re- intent to allow this bill to be debated court. A judge will make the deter- sulting from the misuse of their prod- fully and for amendments to be offered. mination of whether S. 1805 fits or it ucts by others, shall be brought to a Time is running. Some Senators spoke does not fit. Was the licensed dealer or close? this morning to the urgency of time to the gun manufacturer acting in a legal The yeas and nays are required under get on to other issues. Certainly, that way or acting against current Federal the rule. is important to all of us. So I hope we law? That is how narrowly we have de- The clerk will call the roll. would be able to do so. I hope now that fined it. The assistant legislative clerk called Senators could come to the floor with Even the minority leader, Senator the roll. their arguments, but most importantly DASCHLE, has joined with me to clarify Mr. REID. I announce that the Sen- I hope we could move to the bill itself. and refine this bill even more—he will ator from North Carolina (Mr. ED- As you know, under the cloture rule be to the floor to speak to that issue— WARDS), the Senator from Massachu- there would be allowed 30 hours. I hope as we worked to make sure we are on setts (Mr. KERRY), and the Senator those in opposition would not take point directing this specifically at from Georgia (Mr. MILLER) are nec- that 30 hours and allow us to get to the those who continually play the game essarily absent. bill. What we are trying to do in S. 1805 at the legal bar of this country to file I further announce that, if present is very narrowly go through the law the frivolous or the junk lawsuits to and voting, the Senator from Massa- and allow law-abiding gun manufactur- drive a legitimate operating American chusetts (Mr. KERRY) would vote ers and law-abiding dealers to be ex- company and industry out of business. ‘‘nay’’. empt from the kind of harassment and I hope my colleagues will come now The ACTING PRESIDENT pro tem- junk lawsuits that we have now seen and vote on the cloture motion to pore. Are there any other Senators in filed in over 30-plus different venues allow us to proceed so we can fully de- the Chamber desiring to vote? over the last several years. All those bate the bill, bring the necessary The yeas and nays resulted—yeas 75, cases then brought to court were amendments that others will have for nays 22, as follows: thrown out of the court, and the reason or against the purpose of this legisla- [Rollcall Vote No. 16 Leg.] was quite simple. The judge looked at them and said: This lawsuit is of no tion. We will vote them up or down and YEAS—75 move it through the Senate. That is value. Alexander Bond Chafee our job. I know there are a lot of issues Allard Breaux Chambliss Here you had a law-abiding manufac- that are important. But there are a lot Allen Brownback Cochran turer, adhering to the laws of the of Americans who view this as a very Baucus Bunning Coleman United States, making a legitimate important issue for our country. Bayh Burns Collins product, and that person cannot be re- Bennett Byrd Conrad I yield back the remainder of my Biden Campbell Cornyn sponsible for a third party action that time. Bingaman Carper Craig might have been a criminal action and

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.017 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1539 the trial bar trying to reach through Many judges, as I have mentioned, Let me repeat that. Individuals and that person to a legitimate gun manu- have outright rejected these suits al- businesses are responsible for the harm facturer or to a licensed gun dealer. ready. They literally clutter up the ju- they cause—not for the action of third In doing so I believe these suits were dicial system. Antigun activists are parties beyond their control. intended, of course, to drive the gun in- trying to destroy tort law by creating The bill protects the rights of truly dustry out of business by holding man- totally new and expansive theories of injured parties. The exceptions allow ufacturers and dealers liable for the in- liability to win restrictions that have for legitimate and recognized causes of tention and the criminal acts of that been rejected in the legislative process. action. Manufacturers or sellers of fire- third party over whom we all know What does that mean? If you can’t win arms or ammunition could still be sued they have had absolutely no control. it on the floor of the U.S. Senate or in if they violated Federal or State law, Lawsuits have been filed in multiple the legislatures of your States, then manufactured defective products, vio- States with demands of massive mone- you get a good attorney and you go be- lated contracts or warranties, or know- tary damages on a broad and varying fore the court and try to argue it there ingly sold guns to irresponsible and/or range of injunctive relief relating to and establish some kind of judicial dangerous individuals. the design, manufacture, distribution, precedent. The law is still out there. The law marketing, and the sale of firearms. I have already suggested that we do still provides recourse for an individual These demands, if granted, would cre- not lock the courthouse door, that we who would fall within those categories. ate major judicially imposed restric- simply allow the argument to be But to suggest that the actions of a tions on interstate commerce in fire- placed. We think that, of course, is im- third party, or the criminal act of a arms and ammunition. portant to all citizens, having their third party, is the opportunity to reach Let me, though, say with that com- day in court and their right to argue it. ment, this deals with civil cases, not through the court by the trial bar to go Would this bill affect several high- after the manufacturer of a legitimate product liability. If a gun malfunctions profile cases such as the lawsuit and someone is damaged, or if the gun legal, law-abiding approach or product against a gun dealer in Takoma, WA, a simply should not be allowed. manufacturer and the gun dealer were store where the DC snipers, John Mu- violating civil law, then, of course, this Most importantly, antigun activist hammad and Lee Malvo, got their rifle? lawyers are the ones who are trying to issue that we are debating today has no Well, it won’t, and here is the reason value. We have clearly narrowed it and distort the law by fabricating new it won’t. In the case of that situation, theories for imposing liability only cleanly gone after the very kind of law- Malvo himself said he stole the gun. after having repeatedly failed to cast suit that we have, as I mentioned, seen What we are also finding is that this their political agenda right here or in over the last several years. particular gun dealer may not have op- The bill does something very impor- erated in the most legitimate of ways, our State legislatures. Just a few years ago, they admitted tant to the underlying principles of our even though the case will not be this when their legislative allies intro- country. It reinforces centuries of legal brought. precedent based on individual responsi- There is a criminal investigation un- duced a bill that would have expressly bility, not responsibility for actions of derway. The BATF has jerked the li- created a new Federal cause of action third parties. Law is based on the act cense of the gun dealer. The business is against a manufacturer, a dealer, or of the individual, and that ought to be now out of business, and it is my un- importer who knew or reasonably the basis of all law. Yet what these derstanding that the BATF has asked should have known that its design, lawsuits would argue is that somehow the Justice Department to file felony manufacturing, marketing, importa- a legitimate, legal manufacturer of a charges against the gun dealer. Even tion, sale, or distribution practices product is liable for the way the prod- within that argument, you have the would likely result in gun violence. uct is used. I have oftentimes said: contradiction of the person who did the How can anyone suggest that any ac- What about an automobile? Certainly shooting saying: I stole the gun. And, tion of the sale of a gun, if it is done le- that is a legitimate product on the of course, you have a gun dealer who gally, results in violence? That is the road. What about an automobile dealer may have operated illegally. Certainly reality of what we dealt with. licensed in his State to sell auto- that is a case in action, although what There are a good many more issues mobiles? If someone takes the auto- is important is this particular bill that we will have an opportunity to mobile designed to give ultimate pleas- won’t affect that. If that gun dealer in discuss in the course of this. ure and to move people from one point Takoma, WA, is found liable, if he It looks as if Senator KENNEDY is on to another and they get drunk and go acted in a criminal way, if he mis- the floor to debate the bill. out and get in their vehicle and kill managed his records that he must keep I reserve my time. I suggest the ab- someone, does the trial bar then say in a way that distorted what he had sence of a quorum. that it is the automobile dealer and the and guns were stolen and he never al- The PRESIDING OFFICER. The automobile manufacturer who are lia- lowed that to be known, then he is at clerk will call the roll. ble for the drunk driver who killed risk. The assistant journal clerk proceeded someone? That is what they are trying I am not a lawyer. So I can’t go to to call the roll. to say and that is exactly the funda- the next step of that argument, and I Mr. KENNEDY. Madam President, I mental argument here. That is why we will not. But what I do know and what ask unanimous consent that the order think it is time this Congress deal with we have insisted on in the crafting of for the quorum call be rescinded. it in a forthright way. S. 1805 is that it be very straight- The PRESIDING OFFICER. Without The House argued this issue over a forward and very clear. Senator objection, it is so ordered. year ago and, by a 2-to-1 vote said: No, DASCHLE has incorporated within this Mr. KENNEDY. Madam President, we are not going to let this kind of an amendment that I have accepted. He just prior to the vote I addressed the lawsuit go forward. may bring some fine-tuning to the Senate on a tight timeframe pointing But they did something our bill also floor. He, too, believes we need to deal out my concerns about why we were does. We didn’t lock the courthouse with this issue. But he is fine-tuning to taking this action at this particular door. Some will argue this simply locks make sure what I just said is abso- time. I have had the opportunity to any person out of the courthouse who lutely clear in the law. There will be no travel the country. might place an argument against a gun arbitrary way for someone to wiggle We just ended the February recess manufacturer or licensed firearm deal- through the law. where we had a chance to get around, er. The answer to that is absolutely Does the bill wipe out century-old as well. One of the things that has not. This will be a basis in the law by tort law principles? The answer is quite struck me over the course of those which lawyers will argue before a judge simply, no. The bill reinforces the cen- travels is the overwhelming concern whether these kinds of charges can le- tury-old legal tenet of personal respon- working families have over the state of gitimately be brought based on the evi- sibility that underlies all of our judi- the economy. It is reflected in whether dence at hand. The judge will then cial system. Individuals and businesses they are going to be able to retain make the decision based on the law as are responsible for the harm they their job; if they have a new job, the to how we proceed. cause. fact it does not pay as well as the old

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.019 S25PT1 S1540 CONGRESSIONAL RECORD — SENATE February 25, 2004 job; they are concerned about the cost are not going to deal with that. We will corporate interests. That is why they of health care, the cost of prescription have special interest legislation for are trying to rush it through. And drugs; and concern over the increase of just one industry—that is what the more and more are going into bank- tuition. These were the issues. other side says—but not for the 7 mil- ruptcy. One concern I have meeting at this lion people who would be affected. Unemployment benefits should be ex- time is we are considering special in- What about those in need of unem- tended with the economy still down terest legislation. We have heard a ployment compensation? These men over 2 million jobs. This chart reflects great deal both by the President and and women have paid into the unem- where we are today, with a total loss of during the course of the election. Hope- ployment compensation. Now they 2.4 million jobs. These figures are from fully, we can free ourselves from spe- have lost their jobs through no fault of the Department of Labor. The Repub- cial interest legislation. their own through basic mismanage- licans say, no, no, we have something Our Republican friends offer this leg- ment of the economy. They lose their more important to deal with, special islation, put a cloture motion down im- jobs and as a result they have dif- interest legislation. mediately, limit the time for any de- ficulty paying their mortgage, putting This chart shows during the previous bate and discussion that provides very food on the table, making sure their administration, they created 2.9 mil- special interest legislation for the gun children are going to be looked after. It lion jobs, yet they still had the exten- manufacturers. That must concern mil- is not because of them. They are hard- sion of the unemployment compensa- lions of Americans, certainly those working Americans. They have a tion for those out of work who had paid who are concerned about the state of record of employment. in over a long time. The unemployment the economy, those concerned by the Under the Cantwell amendment, we compensation fund is in surplus, $17 failure of the Senate to increase min- extend the unemployment compensa- billion. It will cost $7 billion and they imum wage over 7 years. We have 7 tion. We did that in other times of our say it will put a strain on the fund. million Americans making $5.15 an history. We did it in the previous This is what is happening, the unem- hour who have not had a raise for 7 Democratic administration before that ployment impact on the family. More years and we are considering special in- Democratic President had created 2 than three in four, or 77 percent, of the terest legislation to protect just a sin- million jobs. We still provided for those unemployed Americans say the level of gle industry, the gun manufacturing who had long-term unemployment, stress in their family is increased. I industry. that they would be able to get unem- don’t know how you put dollars and There are tens of thousands of Amer- ployment compensation even after cents on that figure. Everything is dol- icans losing their unemployment com- more job were created. lars and cents around here. This is the pensation every single week yet we are Now we have the loss of 3 million kind of pressure and tension and anx- not debating the question of the exten- jobs, a sputtering return of 78,000, a iety these families are under, the 2.5 sion of the unemployment compensa- total loss of 2 million jobs, and they million. tion—which is in surplus, close to $18 are out there and losing every single Two-thirds, or 65 percent, of those with children have cut back on spend- billion. Senator CANTWELL has an day whatever unemployment insurance amendment to extend that for a tem- they have. We say, let us at least pro- ing for their children. Those are work- ing families trying to provide for their porary period of time, give some relief vide some temporary help. children clothes, or perhaps a birthday for all of the workers who cannot find Finally, our President has agreed we present, perhaps an outing, taking work. are not going to get the kind of recov- Finally, the administration admits ery and create the 2.6 million jobs the them to a baseball game in the spring, we will not have good jobs, good pay, Council of Economic Advisers said a hockey game or a basketball game in good opportunities for the future. Fi- would occur. They finally admit that. the winter. That is not there for any of these families. nally, the President has agreed with And we are stonewalled to not work on Twenty-six percent say another fam- that. He differs with his Council of unemployment in the Senate. No, let’s ily member has had to start a job or in- look after one industry, not the tens Economic Advisers. For weeks we crease their working hours. Those are and thousands and millions of hard- heard from the other side of the aisle: basically the women, the mothers, working Americans who have worked The economy is back. And now the when they can find it. All those moth- hard, played by the rules and need President agrees the economy is not ers are working twice as hard now as back. enough to be able to continue to pay they did 20 years ago. We do not need much Senate time on their mortgages and look after their Twenty-three percent have had to in- the issue of a minimum wage increase. families. No, no, no, we cannot do that. terrupt their education. Imagine that, I would agree to an hour, half an hour It might take all of an hour. Everyone working families, the unemployed—2.4 on either side. Let’s send to American in this body knows what the issues are. million of them—and almost a quarter workers working on the lower rung of We have to do special interest legisla- of their children have had to interrupt the economic ladder a message that tion. their education because their parents help is on their way. It will benefit pri- That is not even the end of it. We are unemployed through no fault of marily women because they are pri- have the clock ticking on unemploy- their own. marily the recipients of the minimum ment. More than half of the unem- That is the pressure they are under. wage. It will go to mothers and chil- ployed adults have had to postpone Do you think we can get an extension dren because many of the women have medical treatment, 57 percent; or cut of the unemployment compensation? children. It is a children’s issue, a back on spending for food, 56 percent. No, no. We have to deal with this spe- women’s issue. It is a minority issue One in four, 26 percent, has had to cial interest legislation. because most of the minimum wage move to other housing or move in with This is the overall view of where we workers are men and women of color. friends or relatives; 38 percent have are in our country now. We have 13 It is a civil rights issue, a children’s lost telephone service; 22 percent are million children who are going hungry. issue, and a women’s issue. Most of all, worried they will lose their phone. We have 8 million Americans who are it is a fairness issue. More than a third, 36 percent, have had unemployed. We have the 8 million People wonder why the Senate trouble paying gas or electric bills. Americans who will lose overtime pay doesn’t do something about increasing One of the principal reasons for the under the Bush proposal. This is an- the minimum wage. We have the ma- increase in bankruptcy is because of other interesting issue. There is no in- jority of votes but our Republican this kind of challenge. Our Republican crease in the minimum wage, there is friends will not let us vote. friends want bankruptcy reform in no extension on unemployment com- We hear the pious statements—look order to expedite the pursuit of these pensation for workers, and now we who is controlling the time—and can’t unemployed people who are having dif- have the proposal to eliminate over- we go ahead with the Nation’s busi- ficult times paying their bills and time for 8 million Americans. ness. The Nation’s business is increas- mortgage. That is what the bankruptcy Well, you have 13 million children ing the minimum wage. No, no, we can- bill is all about: make the Federal Gov- who are going hungry, and the millions not deal with that this morning. No, we ernment collection agencies for special who are without work.

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.022 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1541 We have 7 million low-wage workers are going to risk their lives locally in work experience, training in the armed waiting 7 years for an increase in the those communities to try to contain forces. . . . minimum wage. There are 3 million this kind of threat. They are the ones There it is, the Federal Register, vol- more Americans in poverty—3 million who are going to be on the front lines. ume 68, No. 61, Monday, March 31, ad- more Americans in poverty—since Yet those are the very people who this ministration’s proposed regs. If you get President Bush took office. Are we ad- administration feels are being over- the skills, training in the Armed dressing this issue today? Oh, no, no, paid. Even the police force that is here Forces, if you happen to be over in Iraq no, we do not have the time to do that. in the Senate in many functions would today or Afghanistan and you have We have to rush through this special be affected. gone to some training programs in interest proposal. We do not have time There are a lot of things that are order to provide greater protection for out here on the floor of the Senate to troubling in the United States of your fellow troops in fighting for our address the issues of those who are liv- America today we should be and must country, maybe a member of the Na- ing in poverty, or the 90,000 workers a be concerned about. I mentioned the tional Guard or Reserve, you get those week—90,000 workers a week; think of number of children who are living in kinds of training functions, you come that: 90,000 workers a week. poverty and what is happening to these back here, you are out of the Guard, Most of us are always impressed dur- families who have seen their jobs you return to work, and your boss says: ing Sunday football games that we outsourced. Many of these things we Hey, these new regs say you got the watch in our stadiums when they have ought to be working on. But one of the training in the Armed Forces. Too bad. that incredible view from the airplanes great problems in our country today is You are not getting your increase. or balloons or whatever that shows the not that our policemen, firefighters, That is what this says. A number of stadiums packed with people. They will and nurses are being overpaid. I have us raised this in the earlier debate. The say: 89,000 people, 75,000 people. I guess not heard anyone say that except the Secretary of Labor in January sent a it is 78,000 out in Lambeau Field out in President of the United States or the letter to the Speaker of the House, Wisconsin, which I have been to re- Secretary of Labor. I have not heard DENNIS HASTERT, saying—and I will in- cently. People look out there and they anyone come up to me back in Massa- clude the letter in the RECORD; it is see the mass of people out there: 80,000, chusetts saying: You know something, only a page and a half long— 90,000 people. Think of that number of Senator, those policemen and fire- I want to assure that your military per- people every single week—every single fighters and nurses are being overpaid. sonnel and veterans are not affected by these proposed rules by virtue of their military du- week—losing their coverage of unem- Do something about it. Do something ties or training. ployment compensation. in Washington about it. I don’t hear But that training in the Armed I want to mention one other area be- that. There is no question that some Forces can make a worker an over- cause I see good friends in the Cham- manufacturers believe that and feel time-ineligible, professional employee. ber. My friend and colleague from Iowa that and have asked the administra- This is new language. It is not in the will be offering an amendment on over- tion to do something about it. No ques- current regulation, and its only pur- time. I know the Senator from the tion about that. And they did, the ad- pose is to take away overtime for vet- Washington, Ms. CANTWELL, will be ministration has. I will give you an ex- erans. here soon to talk about her amendment ample. Why don’t they just drop the lan- on the unemployment compensation. But let me just conclude on this guage and free us from any kind of am- But one of the cruelest, cruelest, cru- chart—police officers, nurses, fire- biguity? Just say, this was brought to elest suggestions that has been made fighters. The interesting part is that our attention, we are going to drop it, by any administration in the time I women, by and large, are mostly in instead of trying to explain it away. have been in the Senate is to effec- these areas and professions. This reduc- Continuing from the letter: tively do away with overtime pay for 8 tion in overtime primarily affects First, the Part 541 ‘‘white collar exemp- million Americans and for those who women in our workplace. tions’’ do not apply to the military. They receive training in the Armed Forces But something that just makes this cover only the civilian workforce. and acquire special skills. extraordinary—and has been debated No one is complaining that the rule Now let us think about the adminis- here on the floor of the Senate—this affects the military workforce. The tration’s proposal and who they are proposal was rejected by the Senate of issue is the veteran who leaves the talking about. Who would be affected the United States, rejected by the military to work in the civilian work- by the proposal the administration is House, but this administration feels force and would lose overtime protec- talking about? Shown on this chart is a sufficiently strong about this issue tions. They are rather clever. They say list of the professions that would lose that they insisted the Harkin-Kennedy the white-collar exemptions don’t the coverage for overtime pay. language be taken out of the bill in the apply to the military. No one is sug- The idea of a 40-hour workweek has middle of the night behind closed gesting it applies to the military. This been at the heart and soul of our whole doors—behind closed doors—at the in- letter is an attempt to mislead. It is country’s ethic. Certainly from the sistence of the major manufacturing very clear. If the administration does late 1930s it has been a part of it. There companies in this country. And we are not intend to apply these overtime reg- has been a recognition that if you are going to face that. We are going to be ulations to those who have been in the going to require people to work over- facing that in these next few weeks as service, they ought to just eliminate it. time, you are going to pay them time we have the reauthorization to do it. I ask unanimous consent to print the and a half. That has been accepted by Now let me point out something on letter from which I have quoted in the Republicans and Democrats alike since the rates that have been proposed. RECORD. the end of the 1930s. But not under this These are the ones that have been pro- There being no objection, the mate- administration. They are talking about posed on the overtime. Listen to this. rial was ordered to be printed in the limiting overtime. And I am talking about the kinds of RECORD, as follows: Who will be the groups that will be skills, cumulative skills that will affected by the elimination of over- SECRETARY OF LABOR, make people ineligible for overtime. I Washington, January 27, 2004. time? This is the group: It is going to am reading right from the Federal Reg- Hon. J. DENNIS HASTERT, be the policemen, it is going to be fire- ister, and I will include the appropriate Speaker of the House of Representatives, fighters, it is going to be the nurses, reference in the RECORD: Washington, DC. among others. I mention policemen and However, the word ‘‘customarily’’— DEAR MR. SPEAKER: I write to provide you firefighters and nurses because, as we with the facts to correct the record following That means the definition about the last week’s Senate floor debate on the Con- know, they are the backbone of home- skills that will be excluded— land security. If we are going to have a solidated Appropriations Act with regard to means that the exemption is also available the Department of Labor’s proposed revision problem with chemical or biological to employees in such professions who have of the Fair Labor Standards Act’s overtime warfare, it is going to be those police- substantially the same knowledge level as exemption regulations. I also would like to men and firefighters and nurses who the degreed employees, but who attained thank you for your support and leadership on are going to be the first responders who such knowledge through a combination of this important issue.

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.024 S25PT1 S1542 CONGRESSIONAL RECORD — SENATE February 25, 2004 The recent allegations that military per- I would be interested in seeing the You can’t make the case any better— sonnel and veterans will lose overtime pay, discussion between the Secretary of no matter how long we speak, how because of proposed clarifications of the Fair Defense and the Secretary of Labor in many charts we have—you can’t make Labor Standards Act (FLSA) ‘‘white-collar’’ the case any better than is being made exemption regulations, are incorrect and putting these out. So many of these harmful to the morale of veterans and of training programs and education pro- by this former serviceman. American servicemen and women. I want to grams are programs that inspire young And I don’t have any doubt that employers assure you that military personnel and vet- people to go in the Armed Forces. They will take advantage of this new opportunity erans are not affected by these proposed are men and women of limited means to cut our overtime pay. They’ll tell us they rules by virtue of their military duties or but have ability and capabilities and have to in order to compete. They’ll say if they can’t take our overtime pay, they’ll training. understand that they cannot achieve First, the Part 541 ‘‘white collar exemp- have to eliminate our jobs. tions’’ do not apply to the military. They their fullest potential unless they take It won’t be just the bad employers either— cover only the civilian workforce. these training programs or build the because these rules will make it very hard Second, nothing in the current or proposed kind of credits in order to get advanced for companies to do the right thing. If they regulation makes any mention of veteran degrees. can get as many overtime hours as they status. Despite claims that military training They ought to be on warning now want for free instead of paying us time-and- would make veterans ineligible for overtime that if they go ahead and do that, they a-half, they’ll say they owe it to the stock- pay, members of Congress should be clear may very well be knocked out of any holders. And the veterans and other working that the Department of Labor’s proposed people will be stuck with less time, less rules will not strip any veteran of overtime kind of overtime protection. That is money, and a broken deal. eligibility. what this basically says. It is a cruel I’m luckier than some other veterans be- This has been one of many criticisms in- hoax to so many who are in the Na- cause I have a union contract that will pro- tended to confuse and frighten workers tional Guard now and are going to tect my rights for a while anyway. But we about our proposal to revise the badly out- come back and be in the civilian work- know the pressure will be on, because my dated regulations under the FLSA ‘‘white force. employer is one that pushed for these new collar’’ exemption regulations. It is disheart- I want to read from a letter: rules and they’ve been trying hard to get rid ening that the debate over modernizing these of our union. My name is Randy Fleming. I live in regulations to meet the needs of the 21st And for all of those who want to let these Haysville, Kansas—outside of Wichita—and I Century workforce has largely ignored the military penalty rules go through, I have a work as an Engineering Technician in broad consensus that this rule needs sub- deal I’d like to propose. If you think it’s Boeing’s Metrology lab. stantial revision to strengthen overtime pro- okay for the government to renege on its I’m also proud to say that I’m a military deals, I think it should be your job to tell tections. veteran. I served in the U.S. Air Force from The growing ambiguities caused by time our military men and women in Iraq that August 1973 until February 1979. when they come home, their service of their and workplace advancements have made I’ve worked for Boeing for 23 years. During both employers’ compliance with this rule country will be used as a way to cut their that time I’ve been able to build a good, solid overtime pay. and employees’ understanding of their rights life for my family and I’ve raised a son who increasingly difficult. More and more, em- now has a good career and children of his Madam President, is there anyone in ployees must resort to class action lawsuits own. There are two things that helped make this body who doesn’t believe that to recover their overtime pay. These workers that possible. eliminating that possibility isn’t of must wait several years to have their cases First, the training I received in the Air greater urgency than the special inter- adjudicated in order to get the overtime they Force made me qualified for a good civilian est provision presently before us in the have already earned. In fact, litigation over job. That was one of the main attractions Senate? these rules drains nearly $2 billion a year when I enlisted as a young man back in Why don’t we clear this up once and from the economy, costing jobs and better Iowa. I think it’s still one of the main rea- pay. for all? Why don’t we take an hour or sons young people today decide to enlist. so and debate the Harkin-Kennedy I hope that this latest concern will be put Military training opens up better job oppor- to rest immediately. Once again, I assure tunities—and if you don’t believe me, just amendment on this issue? Why don’t you that military duties and training or vet- look at the recruiting ads on TV. we vote on that amendment and send it eran status have no bearing on overtime eli- The second thing is overtime pay. That’s over to the House? Let’s send a mes- gibility. We hope that future debate on this how I was able to give my son the college sage to families, nurses, police officers, important provision is more constructive. If education that has opened doors for him. and firefighters. Let’s send a message we can provide further assistance in setting Some years, when the company was busy and to those who have gotten skills in the the record straight, we would be pleased to I had those college bills to pay, overtime pay do so. The Office of Management and Budget National Guard. Let’s send a message was probably 10% or more of my income. My that we stand with them, that we be- has advised that there is no objection from daughter is next. Danielle is only 8, but we’ll the standpoint of the Administration’s pro- be counting on my overtime to help her get lieve their service is of importance to gram to the presentation of this report. her college degree, too, when that time us in the Senate. Let’s put aside the Sincerely, comes. For my family overtime pay has speeches for a little while that will be ELAINE L. CHAO. made all the difference. made by political leaders all over the Mr. KENNEDY. The Bush overtime That’s where I’m coming from. Why did I country about how much we appreciate proposal denies overtime to veterans. come to Washington? I came to talk about the service of men and women and do The overtime proposal explicitly states an issue that is very important back home something for them in the Senate now? that training in the Armed Forces and to me personally as a working man, a Now. family man, and a veteran. The issue is over- There are a number of other issues could disqualify workers from the over- time rights. time protection. Many employers, such The changes that this administration is that we could be talking about in as Boeing, acknowledge that this will trying to make in the overtime regulations terms of the state of our economy. I affect much of their workforce. Accord- would break the government’s bargain with have taken a short period of time. I see ing to Boeing’s comments on the Bush the men and women in the military and others in the Chamber who wish to ad- proposal: would close down opportunities that working dress the Senate. It does seem to me Boeing observes that many of its most vets and their families thought they could that the matters I have mentioned, no skilled technical workers received a signifi- count on. matter how you come out on them, are When I signed up back in 1973, the Air cant portion of their knowledge and training Force and I made a deal that I thought was of importance to working families in outside the university classroom, typically fair. They got a chunk of my time and I got this country. And, the working fami- in a branch of the military service. . . . training to help me build the rest of my life. lies in this country are faced with eco- There it is. That is the reason. Be- There was no part of that deal that said I nomic challenges. cause many manufacturers wanted would have to give up my right to overtime It is not just the questions about that kind of savings for the bottom pay. You’ve heard of the marriage penalty? outsourcing, although that is enor- line. That is why that is in there. Be- Well I think that what these new rules do is mously important and a matter of cause this company and others have to create a military penalty. If you got your great and expanding concern. It is what hired people who have been in the mili- training in the military, no matter what is happening with the failed increase in tary, and when they see they have your white collar profession is, your em- the minimum wage, the failure of pro- ployer can make you work as many hours as these kinds of skills which are nec- they want and not pay you a dime extra. viding unemployment compensation, essary for our Armed Forces, they are If that’s not a bait and switch, I don’t the failure to do the overtime provi- being penalized for it. know what is. sions, the failure to deal with the high

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\A25FE6.002 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1543 cost of prescription drugs. There is an- ago, we had over 600 Colt workers who were cluding Healthy Forests. But I also other amendment we could do to per- members of our local. Our members built the must say we profoundly disagree when mit the Secretary of Health and finest small arms in the world, including the it comes to guns. So it is probably no Human Services to actually negotiate M–4 carbine, the M–16 rifle, and the M–203 surprise to him that I rise to strenu- grenade launcher. and do something about lowering pre- ously object to what I see happening scription drugs for people. We could do I believe those are the firearms of our here. that pretty quickly. military. I think we have to recognize that People are concerned about the high Many of them were shipped to the U.S. guns in America are responsible for the cost of tuition in colleges, and there military and lawfully provided for the prin- deaths of 30,000 Americans a year. The are things we can do on that. ciples of democracy. question comes whether we should be I say these are the matters that are That company is at risk today unless giving the gun industry sweeping and of principal concern to working fami- we pass the kind of legislation about unprecedented protection from the lies across this country. We have seen which we are talking. type of lawsuits that are available to the loss of manufacturing jobs, the I do believe the working men and every other victim involving every concerns that working families have. women of this country are a special in- other industry in America. They want some action. They don’t terest. I think the tens of millions of The simple fact is that over the want us to yield to special interest pro- law-abiding gun owners in our country years, the gun industry has managed to visions. Not only do they not want us are a special interest. So it is really a lessen, avoid, or prevent any prudent to yield to them, but those who have matter of how you define ‘‘special in- regulation. For example, they are ex- been victims of violence and violent terest.’’ If it has been said once on the empt from Consumer Product Safety gun activity don’t want us to throw floor, it has been said 15 times in the Commission laws, thanks to the Na- their cases away, and leading law en- last 45 minutes: special interest, spe- tional Rifle Association’s efforts over forcement officers of this country un- cial interest, special interest. the years to keep it that way. derstand that we should not yield to Let’s talk about the working men Secondly, the Federal Government the special interests as well. and women of the firearms industry. cannot do much to police bad gun deal- I look forward to the opportunity for Let’s talk about the law-abiding gun ers—and we know there are some—or some discussion and some action on owners of America as a special interest to enforce gun laws because the hands these issues prior to the time we have of us, this country, all Americans. You of the ATF, the Bureau of Alcohol, To- a vote. I yield the floor. are darn right we debate special inter- bacco and Firearms, are tied by limits The ACTING PRESIDENT pro tem- ests on the floor of the Senate, but it to their authorities which have been pore. The Senator from Idaho. really is a matter of definition. put in place by the National Rifle Asso- Mr. CRAIG. Mr. President, the Sen- Time limit? We are not proposing a ciation. They can only do a once-a-year ator from California is now in the time limit. Senators can speak for up audit, for example. They only have Chamber to discuss this bill. We are to an hour on this issue now, and if not on the bill yet. I hope we can get limited options. they want to, they have 30 hours The number of ATF agents is kept so there. postcloture before we get to the bill. I The Senator from Massachusetts has low they cannot possibly inspect all of hope we don’t spend all of that time taken ample time to discuss the bill, I the gun dealerships in this country. So doing that. I would like to get to the guess, and other issues. I would like to today only the court system offers vic- bill. I know the Senator from Cali- talk about jobs. I think the Senator is tims of negligent manufacturers, of right to talk about jobs, but what he fornia has talked about an amendment. which there are some, and dealers, of didn’t talk about were the jobs in I think she would probably want to which there are some, the ability to re- Westfield, MA, at Savage Firearms. offer that amendment and have it ceive compensation for their injuries. They used to be a total of 500 high-pay- amply debated. Only the court system provides a ing union jobs strong. They have spent We do not want to limit time, but we means for changing these negligent over half a million dollars fighting the do want to talk about special interests: practices through the threat of legal li- lawsuits that we would like to pro- law-abiding gun owners in our country, ability. hibit. Now there they are 160 strong. working men and women of the law- I hope to show that the threat of They have lost jobs in Massachusetts. I abiding gun manufacturers, the people legal liability has, in fact, resulted in want the Senator from Massachusetts who work at legal gun shops all over more responsible manufacturing and to stand with me and protect the hard- this country that by law are licensed selling principles by this industry. If working men and women at Savage and that by law carry out the law. we remove this one remaining avenue Firearms. That is what we are talking about toward enforcing responsibility, vic- The bill is about jobs, I say to the today. Call them a special interest, if tims will have no recourse. Gun owners Senator from Massachusetts. That is you will. I do. My job is to try, under and gun victims alike will be left vir- what this issue is all about. the law, to protect them from the tually powerless against an industry Why is our bill endorsed by the kinds of frivolous lawsuits the trial bar that is already immune from so many United Steelworkers and by the United has decided to bring in court after other consumer protections. So we find Auto Workers? The reason it is en- court because they couldn’t gain legis- ourselves today on the cusp of yet an- dorsed is because these high-paying lation on the floor to change the char- other NRA victory. jobs at law-abiding gun manufacturing acter of our country. That is the issue Let me be clear, this is not a victory locations are being eliminated by the at hand. for NRA members, most of whom are glut of a thousand lawsuits—in this I am glad the Senator from Massa- law-abiding gun owners who might case over 30—where they have had to chusetts has come to talk about special some day benefit from the ability to go to court, spend a lot of money, and interests. I wish he would understand sue a manufacturer that sold them a the court threw it out because it was that the hard-working men and women defective or dangerous gun. No, this frivolous, but the company was less in Westfield, MA, for Savage Firearms will be a victory for those who have viable because these are really not big are, in fact, a special interest—a spe- turned their organization into a polit- companies. cial interest of mine and, I am quite ical powerhouse, unconcerned with the If we took all of the firearms manu- confident, a special interest of his. rights of the majority of Americans facturers in the United States today I yield the floor. who want prudent controls over fire- and brought them all into one com- The ACTING PRESIDENT pro tem- arms. pany, they would be smaller than a pore. The Senator from California. I do not support meritless lawsuits Fortune 500 company. Mrs. FEINSTEIN. Mr. President, I against the gun industry. I do not Let me read a great quote from the rise today to speak on the bill that is think anybody does. It is my belief gun Colt manufacturers, Colt firearms. before this body, and I wish to begin by manufacturers and dealers, though, They are located in Connecticut: saying that I have great respect and should be held accountable for irre- We today have 383 members from the Colt have enjoyed working with the Senator sponsible marketing and distribution workforce. By comparison, about 5 years from Idaho on a number of issues, in- practices, just as anyone else would be,

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.029 S25PT1 S1544 CONGRESSIONAL RECORD — SENATE February 25, 2004 particularly when these practices may have little incentive to change the de- This provision is slightly more likely cause guns to fall into the hands of sign, but this legislation would remove than the first exemption, but it still re- criminals, juveniles, or mentally ill the threat of that suit, depriving Bran- quires a very high burden of proof. In- people. don of compensation but, even worse, stead of common negligence, which This legislation has one simple pur- depriving the public of this key avenue might only require that the dealer did pose: to prevent lawsuits from those to improving the habits of gun manu- not take enough care in making sure harmed by gun violence. These include: facturers. that criminals did not obtain guns to suits filed by cities and counties which I will quickly go through what the commit crimes, what this provision re- face rising law enforcement and med- bill does. I know others have and will quires is that the dealer actually know ical costs due to increased gun crimes, continue to speak to this, but I think that the buyer is likely to use the gun crimes often committed using guns it bears repeating because I do not to do harm. that flood the illegal market with the think everybody supporting this bill How can this be proven? Mr. Presi- full knowledge of the distributors that really understands its full ramifica- dent, you are an attorney. How can the legal market could not possibly be tions. this be proven? The difficulty in prov- absorbing so many of these weapons; Essentially, this bill prohibits any ing such a claim might all but bar this suits filed by organizations on behalf of civil liability lawsuit from being filed exemption from ever coming into play. their members; and victims of violent against the gun industry for damages It would have no effect on such prac- crimes and their families who are in- resulting from the criminal or unlawful tices as straw purchases and large vol- jured or killed as a result of gun vio- misuse of a gun, with a number of nar- ume sales—which, incidentally, are the lence or defective guns that malfunc- row exceptions. two most common sources of crime tion due to negligent design or manu- In doing so, the bill effectively re- guns—because in a straw purchase, the facture. writes traditional principles of liabil- dealer could always claim that he or This issue is not an abstract one. ity law, which generally hold that per- she had no idea what the buyer would When people vote for this gun liability sons and companies may be liable for be doing with the guns. absolution today, they are going to be their negligence even if others are lia- Third, the bill would allow suits to hurting a lot of people all across this ble as well. This bill would essentially proceed where a defendant has violated land, and I want to point out a few be- give the gun industry blanket immu- a law or regulation in the sale of the cause this bill affects the lives of real nity from civil liability cases, an im- specific gun that caused the damage or gun victims, victims not simply of munity no other industry in America injury. This sets a very high burden of criminal misuse by a well-designed has today. proof for negligence. Again, this would firearm, but victims of guns that have The bill does allow certain cases to not affect dealers who conduct straw been designed poorly or marketed in move forward, as its supporters have purchases or other dangerous distrib- ways which quite frankly should be il- pointed out, but these cases can pro- uting conduct because such conduct legal. ceed only on very narrow cir- does not specifically violate any laws One of the cases that could be af- cumstances. Countless experts have or regulations, although I must say it fected by this legislation, though this now said this bill would stop virtually should. would ultimately be decided by a all of the suits against gun dealers and Because there are so few real laws or judge, is that of Brandon Maxfield, a 7- manufacturers filed to date, many of regulations governing how guns are year-old from my State, Oakland, CA. which are vital to changing industry sold or manufactured, this provision, On April 6, 1994, Brandon was shot in practice and compensating victims who too, is relatively insignificant in terms the chin by his babysitter. The shoot- have been horribly injured through the of how it affects the underlying thrust ing left him a quadriplegic and he will clear negligence or even borderline of the bill. never be able to walk again. criminal conduct of some gun dealers Now I should point out that this pro- The babysitter, a friend of the fam- and manufacturers. vision is different than the provision in ily, was simply trying to remove a bul- The exemptions in the bill, even the the original bill as passed by the let from the chamber of a weapon that new bill, set a very high burden of House. Under the original bill, only was found in the house, a .38 caliber proof of negligence for plaintiffs, allow knowing and willful violations of the Saturday night special, when the gun for a very slight number of cases law could be subject to suit, which is accidentally fired. against gun manufacturers to be filed, an even higher burden to reach. But Here is the key: The weapon was and only protect a limited class of even under this revised legislation, this clearly designed in an inherently dan- cases against sellers. standard is far higher than current law. gerous way. It can only be unloaded Under this bill, cases could only be The simple truth is, negligence does when the safety is in the off position filed in the following narrow cir- not involve a violation of the law. Re- and can therefore fire. cumstances. First, if a gun dealer quiring a plaintiff to prove that a gun Now common sense might say when transfers a firearm knowing the gun store, for example, was not only neg- you want to unload a gun you would will be used to commit a violent or ligent in letting a criminal obtain a first put the safety on. It defies com- drug trafficking crime. In other words, dozen guns, but the gun store actually mon sense, on the other hand, to design a suit could go forward if a dealer gives violated a law in doing so, of which a firearm so it can only be unloaded in a gun to someone who comes in and there are few, makes it very difficult to the firing position. After all, one might says, ‘‘Give me a gun, I need to go kill succeed. expect the gun to accidentally fire as someone.’’ This provision only applies So with any other business or prod- someone like Brandon’s babysitter in the highly unlikely event a gun uct, in every other industry, a seller or struggles to unload it. buyer clearly indicates his or her manufacturer can be liable if it is neg- Finally last year, after 9 years of liti- criminal intentions to the gun seller. ligent—but not here. Since money, gation, a jury found the manufacturer Fat chance of that happening. rather than life or liberty is at stake in and distributor of Saturday night spe- I am not a gun dealer, but I imagine a civil case, the standard of proof is cials partially liable for Brandon’s in- most criminals do not make a habit of lower. There need not be a criminal juries. This was a tremendous victory announcing their criminal intentions violation to recover damages, and in for Brandon and his family and a vic- to gun dealers. So this exception to the the overwhelming majority of civil tory for all people who want to see immunity created by the bill is really cases there is no criminal violation. So guns made safer. This bill, however, no exception at all. It will apply to al- if, for instance, a crib manufacturer de- would take away Brandon’s right to most no cases. signs and markets a crib that results in sue, and I will explain why a bit later. Secondly, there is an exemption in the death of children who use the crib, The bottom line, though, is Bran- the bill which applies if a dealer sells a we allow that manufacturer to be sued don’s case was not frivolous. The jury gun to someone knowing the buyer will as one means of deterring such conduct did not think it was. Without the or is likely to misuse the firearm and and of compensating the families of the threat of lawsuits, companies like the that the individual buyer does indeed children who died from the defectively one that made the gun in this case will misuse it to commit a criminal offense. designed crib. The manufacturer need

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.032 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1545 not have committed any crime. It is intended.’’ This provision altered gen- by simply designing guns with techno- the negligence in making a defective erally accepted principles of products logically and economically feasible and dangerous crib that is enough. liability law which essentially state safety devices. Here, contrary to general negligence that a manufacturer must implement Recent cases have produced evidence law covering almost every other prod- feasible safety features that would pre- from law enforcement investigations, uct, this bill allows negligent gun deal- vent injury caused by foreseeable use as well as industry insiders, that the ers and manufacturers to get off the or misuse, even if that use is not ‘‘in- gun industry may be ignoring numer- hook unless they violated a criminal tended.’’ For instance, it might not be ous patented safety devices for guns law. That is just dreadful. You are cre- intended for a child to try to eat a and intentionally flooding certain mar- ating a special area of law for gun man- small toy, but it is clearly foreseeable. kets with guns knowingly, and also ufacturers and saying unless they vio- This new modified gun immunity leg- profiting from the fact that the excess late a law they can manufacture a de- islation does add language allowing weapons would make their way into fective weapon. suits to go forward as long as the activ- the hands of criminals. We have seen The judge in Washington State pre- ity was ‘‘reasonably foreseeable’’ by gun dealers selling guns when they siding over the case brought against the manufacturer or dealer, which ap- know these guns are being purchased the DC area snipers has twice ruled pears to match current law. However, to immediately resell to criminals— that the dealer, Bull’s Eye Shooters the devil is in the details because the often to criminals who wait right out- Supply, and the manufacturer, Bush- bill then takes away any benefit that side the door or even inside the very master Firearms, may be liable in neg- language might have by stating that store while the guns are being bought ligence for enabling the snipers to ob- the exemption will not apply to law- by someone who can pass a background tain their gun. But even with the new suits that also involve criminal acts by check. modifications, the sniper victims’ case the defendant. Lawsuits filed against the gun indus- could very well be thrown out of court The best example of how this provi- try provide a way for victims and mu- under this bill. So know what you are sion would affect the case is the Bran- nicipalities to seek justice from the doing, Members who vote for it. The don Maxfield babysitter shooting I damages and destruction caused by sniper victims’ case could well be mentioned earlier, where a child was firearms. Additionally, lawsuits provide this thrown out of court by this bill because accidentally shot by a babysitter be- largely unregulated industry with in- there is no evidence that either the cause the chamber of the gun could not centives to reform irresponsible manu- negligent dealer or manufacturer vio- be checked without clicking the safety facturing and distributing practices lated a criminal law. to ‘‘off.’’ In that case, the gun fired proven to be dangerous. Indeed, both Lloyd Cutler and David while the babysitter tried to check the According to Tom Gresham, a writer Boies, each prominent attorneys, re- chamber. for the magazine Guns & Ammo, law- cently stated unequivocally that the The problem is the bill prohibits suits have, in fact, proven effective in suits involving even foreseeable acci- sniper case would have to be dismissed encouraging manufacturers to design dents, if there are criminal charges. In under this bill, and countless profes- their guns with proper safety devices. the babysitter case, the babysitter sors have written a letter agreeing Even though guns are not required to with this interpretation of the law. could easily be, and indeed was, be made with safety features, Gresham This is the most notorious sniper charged with manslaughter—which is a writes in the June 2002 edition of the case in America. You have negligence crime. Thus, even this suit would still magazine that lawsuits have spurred on the part of the gun dealer who sold be barred by this revised bill. manufacturers to include them to Contrary to current law which allows that gun, didn’t report it until way avoid liability in future actions. late, allowed the snipers to get that judges and juries to apportion blame Don’t we want this to take proven gun, and now we are passing a law to and damages, this bill would bar any steps to improve the safety of their prevent the victims from suing under damages against a manufacturer if an- weapons? civil liability. Nowhere else in the law other party was liable due to a crimi- Gresham claims, ‘‘No matter what does this exist. nal act. you think of them, you will find built- In another case, a Massachusetts Why should firearms get special in locks on more and more guns in the court has ruled that gun manufacturer treatment? In our society, we hold future. I predict that in ten years, no Kahr Arms may be liable for neg- manufacturers liable for the damage firearm will be made without one.’’ ligently hiring drug-addicted criminals their products cause. This is the case What does this bill do to that? It en- and enabling them to stroll out the with automobiles. This is the case with courages the gun companies to do ex- plant door with unmarked guns to be cribs. It is the case with children’s actly the opposite—to not put better sold to criminals. But with the pro- toys, and it should be the case with safety components on their weapons. posed changes, the case against Kahr guns as well. Lawsuits filed against the When this bill was introduced, its Arms would be dismissed. Its conduct, gun industry provide a way for those supporters spoke about the need to pro- though outrageous, violated no law. harmed to seek justice from the dam- tect the industry from frivolous law- Negligent? Yes. Criminal? No. ages and destruction caused by fire- suits and the need to protect the indus- Members, know what you are doing arms. Just as important, they create try from the potential loss of jobs when you vote for this bill. incentives to reform the practices brought on by future lawsuits. These The fourth exemption in the bill is proven to be dangerous. claims are unfounded. This bill is sim- when a dealer somehow violates a sales After all, this is the most dangerous ply the latest attempt of the gun lobby contract. An example of this would be consumer item found in a home. to evade industry accountability. The the dealer failing to provide the gun for According to statistics, there is a suits against the gun industry come in which the purchaser paid. This, too, is gun in 43 percent of the households varying forms, but they all have one clearly a limited exception. Victims of with children in America. There is a goal in common—forcing the firearm defectively designed or negligently sold loaded gun in 1 of 10 households with industry to become more responsible. guns would not be allowed to file cases children, and a gun that is left un- In addition to ongoing cases filed by under this provision. Furthermore, the locked or improperly stored in 1 of individual victims, there have been a claims of gun purchasers would be lim- every 8 family homes. handful of cases filed by private asso- ited to what they were entitled to More children and adult family mem- ciations, such as the National Associa- under the scope of the contract or war- bers are killed each year by having a tion for the Advancement of Colored ranty. loaded gun at home than from inci- People, and the National Spinal Cord The fifth exemption in the original dents with criminal intruders. In fact, Injury Association. These cases have bill allowed suits to go forward if the a gun in the home is 22 times more been filed on behalf of groups of indi- gun manufacturer has caused ‘‘physical likely to lead to an accidental injury viduals who claim to have been harmed injuries or property damage resulting or death to family members than used by the gun industry’s bad behavior. directly from a defect in design or against a criminal intruder. These are And there are government cases—at manufacture of a product when used as senseless actions that can be prevented least 24 cases—that have been filed

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.034 S25PT1 S1546 CONGRESSIONAL RECORD — SENATE February 25, 2004 against the gun industry on behalf of and new marketing practices make it more about gun dealers and distributors that nearly three dozen cities and counties difficult for criminals to obtain guns, some know their guns are sold to be used in and one State attorney general claim- firearm-related deaths and injuries may be crime. This very bill was scheduled to ing that the reckless conduct of the prevented . . . Such litigation may have an come to the Senate for consideration important role to play, contemplating other during the 107th session of Congress. It gun industry has threatened public interventions available to cities and states. safety and hindered the ability of mu- was withheld in light of the sniper at- This case could well be stopped in its nicipalities to provide for the health tacks that terrorized the Washington, and welfare of their citizens. A major- tracks if this bill passes. DC area. I guess enough time has now In another case, Hurst v. Glock, the ity of these municipalities’ lawsuits passed that the bill’s supporters think New Jersey Court of Appeals also ruled have successfully defeated industry at- we will have forgotten those sniper vic- in favor of the plaintiff. This products tempts to dismiss their cases. This bill tims. But we have not. We have already liability case centers on an incident in would kill that. heard today that the victims of those Last year, Dennis Herrera, City At- which a teenage boy, Tyrone Hurst, attacks have filed one of the cases cur- torney of San Francisco, said that, was seriously injured when his friend rently pending. The suit results from ‘‘Cases being pursued by my office and picked up a gun she thought was un- alleged negligent conduct of a gun some 30 other jurisdictions nationwide loaded and fired at Tyrone. The Hurst dealer that has been accuse of some in- have already achieved important mile- family argued that the shooting could credibly negligent conduct. stones in exposing gun industry reck- have been prevented had the gun manu- Mildred Denise Muhammad filed lessness, with mounting evidence and facturer included a safety feature three restraining orders against her an increasing number of high-level known as a magazine disconnect safe- husband, John Allen Muhammad, one whistle blowers revealing gross mis- ty. of the convicted snipers. Those re- conduct by manufacturers and dealers Again, the Court agreed and found straining orders should have prohibited ... I’m convinced that the City and its that the gun manufacturer could be John Allen Muhammad from owning a fellow plaintiffs have a compelling case liable for injuries caused by the failure gun. against the gun industry.’’ to include a safety feature on the fire- However, nothing stopped him from This legislation would prevent them arm. Wiped out. obtaining the handgun he allegedly from going ahead. In 1994, Griffin and Lyn Dix from used to commit murder in Alabama, Let me describe a few representative Berkeley, CA, lost their youngest son nor the Bushmaster XM–15 assault rifle cases that also could have been stopped Kenzo after he was accidentally shot to used in the sniper attacks, in all likeli- by this bill. death at the age of 15 by his best hood because the dealer that had the The case of Cincinnati v. Beretta is friend, Michael. Michael was showing Bushmaster assault rifle was either one example of a legitimate and suc- his father’s gun to Kenzo and, believing negligent or willful in allowing it to cessful case filed against the gun indus- the gun to be unloaded, pointed it at fall into Muhammad’s hands. try. In this case, officials from the city his friend and fired. Michael did not re- The assault rifle used in the sniper of Cincinnati, OH, contended that the alize there was a bullet hidden in the attacks was one of 238 guns that have gun industry’s reckless marketing and chamber of the gun. been reported missing from the Bull’s distribution of guns enabled them to In an interview after the incident, Eye Shooters Supply store in Tacoma, wind up in the hands of criminals and Michael described the situation after WA. We learned about this dealer’s children leading to murders, shootings, turning the gun on his friend: dangerous inability to keep track of and suicides that imperil public safety. I look down and I don’t even aim. I heard his guns not from the store itself but, The city also argued that gun manufac- a pop, my eyes opened up and I was shocked. rather, from audits performed by the turers were negligent in failing to de- I look and saw Kenzo hunched over, kind of ATF. The store had no record of pur- sign safer weapons and owed the city moaning—a creepy moan you don’t want to chase for the assault rifle used in the hear. It just stays with you. compensation for the cost of emer- attacks and failed to report it stolen gency responses to acts of gun vio- The bullet went straight into Kenzo’s until after the ATF recovered the lence. chest. Tragically, he was pronounced weapon from the snipers and traced it The Supreme Court of Ohio agreed dead within the hour. back to the store. Here is a store that and ruled the issue deserved explo- Kenzo’s parents sued Beretta, the has 238 guns that are missing and does ration at trial. The court found that manufacturer of the gun that killed not report them. That is class A evi- under generally applicable principles of their son. They argued that the gun dence. law, it is the duty of gun manufactur- lacked adequate safety features and Even after this blatant display of ers to use reasonable care in their de- warnings and that is why it appeared negligent conduct, the rifles manufac- sign and sales of guns, and they may be unloaded despite the fact that a bullet turer announced that the gun store re- liable for damages arising from their lay in the chamber. mained a ‘‘good customer’’ and it negligent conduct and failure to equip The case sent a necessary wake-up would continue to sell guns to the their guns with practical safety fea- call through the industry that they store. The manufacturers showed clear tures. could rightly be held accountable in fu- disregard for the victims, their fami- This is no different an analysis than ture wrongful-death cases. Faced with lies, and public safety. would be used against the manufac- the threat of litigation, a number of And the store itself, in either failing turer of any product used by a con- manufacturers have changed their de- to adequately account for its guns, or sumer—whether a child’s crib, a tooth- sign standards and designs to include even worse, illegally selling the gun to brush, a chainsaw, or an automobile. proper and practical safety features. a prohibited person, may well also be The Court also found that a manufac- That is a positive benefit all across liable for its conduct. The alleged snip- turer could be held liable for their role this Nation. ers were clearly aided and abetted by in creating and facilitating the crimi- I ask my colleagues, how can we jus- the irresponsible conduct of the owners nal gun market through their failure tify giving blanket immunity to the of this gun shop that managed to sim- to use reasonable care in their sale and gun industry that manufactures and ply lose hundreds of deadly weapons distribution of guns. The Court specifi- distributes products that kill 30,000 and the manufacturer that supplied se- cally rejected the argument that those Americans a year, yet fail to provide rious combat weapons to a dealer with who irresponsibly sell guns cannot be the proper and practical safety features no questions asked. liable if the damage foreseeably result- in their products? If they are not liable, they will be ing from their negligence was ulti- Under the principles of common law, found not liable by a jury; but if they mately caused by a criminal act. all individuals and industries have a are liable, should we not allow a court Furthermore, the Court noted the so- duty to act responsibly. How can we to decide? How can we, with a clear cially beneficial role of lawsuits give total legal immunity to an indus- conscience, pass a bill that would deny against gun sellers and manufacturers try that time and time again has failed the right of these victims of gun vio- can play: to act in such a manner? lence their day in court? If as a result of both private and municipal This is not just about manufacturers As I mentioned earlier, this case lawsuits, firearms are designed to be safer and the design of products. It is also would almost certainly be dismissed if

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.037 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1547 the bill now before the Senate becomes Officers Dave Lemongello and Ken lence others. That is according to one law. With no liability threat, few ATF McGuire were shot with that handgun of their own insiders, and we go along enforcement tools, and a blanket ex- while responding to the scene of an at- with it and are going to give them civil emption from consumer laws, Bull’s tempted robbery. The shoot-out put an liability protection. I cannot believe it. Eye will have no incentive to clean up end to the careers of both men. The in- Again, I do not support meritless its act. juries they received were so debili- lawsuits against any industry, includ- Such disregard for public safety is tating they could no longer serve. ing the gun industry. But the fact of identified in another case filed against Those officers filed a lawsuit against the matter is, this bill’s goal of grant- the gun industry, Lemongello and the dealer and Sturm, Ruger, who both ing the gun industry blanket immunity McGuire v. Will’s Jewelry & Loan. In profited from their irresponsible con- would cause much greater harm to the this case, the argument that those who duct. Their claims were recently vali- American public than it could ever pos- irresponsibly sell guns cannot be held dated, and the West Virginia Circuit sibly prevent for an already under-reg- liable if the guns were later used in a Court found the gun dealer could be ulated industry. criminal act was again rejected, this liable under West Virginia law of neg- The right way for the gun industry to time by West Virginia Circuit Court ligence and public nuisance for failing protect itself from liability for irre- Judge Irene Berger. to use reasonable care in its sales. As a sponsible conduct is simply to act re- As the Presiding Officer knows, a result, a jury could find the subsequent sponsibly, by manufacturing guns with felon, fugitive, or stalker cannot le- criminal shooting was a foreseeable re- safety devices and ensuring their prod- gally buy guns. So sometimes the indi- sult caused by that negligent act. ucts are going to reputable, law-abid- The bill we are considering today viduals will find someone also to help ing dealers. would turn a blind eye to the reckless them evade the current gun laws and Is that asking too much? Is it asking conduct shown by those in the industry get their hands on a gun. too much that dealers enforce the rules that enabled this tragic incident to A straw purchase occurs when a on the books and prohibit straw pur- have taken place. buyer purchases guns on behalf of chases? Straw purchases, remember, criminals or other individuals who are Last year, Officer Lemongello spoke before the House Judiciary Committee are responsible for the sale of 43 per- prohibited from purchasing guns. Fed- cent of the guns in this Nation that are eral law enforcement agencies estimate to protest this bill. In his testimony he stated: used in crimes. 46 percent of crime guns nationwide I think dealers should enforce the come from this type of purchase. I re- The next disturbing news I heard was that some people in Congress wanted to take rules on the books and prohibit these peat, 46 percent of the guns used in purchases. If litigation is the only way crimes in America come from these away my right to present my case in court and wanted to give that irresponsible dealer to keep the gun industry in check, we straw purchases with gun dealers. special protection from the legal rules that should not give the gun industry total The National Shooting Sports Fed- apply to all other businesses in this country. immunity. As I have pointed out, ev- eration is the gun industry’s leading Other businesses have to use reasonable care erything else is stretched thin. trade association. It is fully aware of and may be liable for the consequences if This is an industry that is less ac- the reality that guns from straw pur- they don’t. Those who sell lethal weapons countable under law than any other in chases are often ultimately found in that are highly valued by criminals should America. The only avenue of account- the hands of criminals. The Foundation have at least the same duty to use reason- able care as businesses who sell BB guns or ability left is the courtroom, and this also recognizes that these dangerous any other product . . . Gun sellers have to be purchases can easily be prevented so bill attempts to slam the courtroom more responsible when they sell guns to pre- door in the face of those who would long as dealers act responsibly. vent guns from getting into criminals’ hands To promote this policy, the Founda- before they do their damage. What happened hold the industry responsible for its ac- tion provides training for gun dealers to me and Ken is an example of what hap- tions. ‘‘to help prevent and deter the illegal pens when gun sellers are irresponsible. We ought to hold this industry ac- ‘strawman’ purchase of firearms.’’ In As if the valuable lessons learned countable for product standards so that the brochure of its training campaign from the cases I have detailed were not in the event a juvenile ends up with a entitled ‘‘Don’t Lie for the Other Guy,’’ convincing enough to prove that crimi- gun, common sense safety devices will the Foundation claims that it is the re- nals are able to get guns on the black prevent senseless accidents. sponsibility of the gun dealer to pre- market due to the complicity of gun We ought to hold this industry re- vent these purchases from taking place manufacturers and dealers, simply lis- sponsible for taking the proper pre- by simply prohibiting any sale they ten to the words of gun industry in- cautions to ensure law-abiding citizens suspect to be a straw purchase. Despite sider Robert Ricker. are able to obtain the guns they choose these warnings, a straw purchase is ex- Former Executive Director of the while criminals and other prohibited actly what took place at Will’s Jewelry American Sport Shooting Council and individuals do not. & Loan, a West Virginia pawnshop, in former Assistant General Counsel for Mr. President, I beg, I plead with this the fall of 2000. James Grey, a felon and the NRA, Robert Ricker has testified body. It is incomprehensible to me that gun trafficker, came into the store ac- in support of lawsuits against the gun the Senate of the United States is companied by Tammi Lea Songer, a industry—a brave man. In a recent affi- going to provide this kind of liability woman who had a clean background davit, Ricker claimed: protection to an industry that does and thousands of dollars in cash. James Instead of requiring dealers to be proactive what I just laid out in these remarks. Grey methodically selected 12 guns he and properly trained in an effort to stop It is incomprehensible. wanted and Songer bought them, all in questionable sales, it has been common prac- I have watched the NRA win time a single purchase, no questions asked. tice of gun manufacturers and distributors after time—the latest being the Fed- The shop’s employees were suspicious to adopt a ‘‘see-no-evil, speak-no-evil’’ ap- eral database of gun sales being oblit- proach. This type of policy encourages a cul- erated after 24 hours. If this bill passes, of Grey and Songer’s actions. They ture of evasion of firearms laws and regula- contacted the ATF to notify them of tions. there will be no stay on the gun indus- try for responsible conduct because the purchase. In the same affidavit, Ricker also The problem is that the call to the they can get away without doing it. claimed lawsuits provide a valuable ATF was made after the guns were pur- I implore my colleagues, please take tool for motivating the industry to re- chased, after the profits were made by a second look at this bill. Talk to at- form and act responsibly. He stated: the dealer and Sturm, Ruger. The torneys like Lloyd Cutler and David Until faced with a serious threat of civil li- warning signs were so obvious, yet ability for past conduct, leaders in the indus- Boies. Ask them what this bill will do proper actions were not taken until it try have consistently resisted taking con- to merit cases. was too late. structive voluntary action to prevent fire- Mr. President, I yield the floor. Just months later, one of these guns, arms from ending up in the illegal gun mar- The ACTING PRESIDENT pro tem- a 9 mm semiautomatic Ruger handgun, ket and have sought to silence others within pore. The Senator from Alabama. was used by a convicted felon to shoot the industry who have advocated reform. Mr. SESSIONS. Mr. President, I and seriously injure two New Jersey That says it all. They will not move would like to discuss this matter on police officers in the line of duty. to do the right thing, and they will si- the level I think it should be discussed;

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.039 S25PT1 S1548 CONGRESSIONAL RECORD — SENATE February 25, 2004 and that is, is it good public policy, is innocent, law-abiding people who vening criminal act did not justify the it the right thing to do in light of the choose to take advantage of the con- lawsuit. litigation we are seeing against gun stitutional right to keep and bear We won the lawsuit. That was a long dealers and gun manufacturers that is arms. This is what we are talking time ago. I don’t know if that would going on in America today? about. Gun dealers have to comply happen today, liberalizing the old prin- I do not believe in any way this is a with these rules, just like the gun man- ciple of law. blanket immunity for wrongdoing or ufacturers. And if they don’t comply A gun manufacturer is not required total immunity for wrongdoing. In with them, they can be sued. and cannot be expected legally to fore- fact, it is not that. What it says is, This legislation would not keep them see criminals will use the gun and who classical rules of law ought to be en- from being sued. What we are talking those criminals are. If we think they forced. Some could ask why we even about is manufacturers who comply should not have guns, we have to pass need this law. Because how can you sue with the laws of manufacturing, and laws. We have to amend the Constitu- the person who manufacturers a can of they sell the gun according to the tion, frankly, to stop that. They are Campbell’s soup if somebody buys that rules, and a dealer takes it and sells it doing what is lawful. can of Campbell’s soup legally and kills according to their rules, without any It is a good effort today. It would be somebody by hitting them on the head knowledge of the manufacturer in Mas- healthy for our entire legal system with it? What if you buy an auto- sachusetts or wherever they make that we confront this issue and allow mobile, and you run somebody over on them. The gun dealer in California or the classical rules of liability to be fol- the street, are we going to sue the Alabama or South Carolina sells it ac- lowed again and not allow the abuse of automobile manufacturer for that? cording to the law. it. What is happening in America is the Then some activist groups that be- We almost voted earlier on con- classical concepts, the classical rules lieve we need to conduct guerilla war- straining liability of doctors who de- of litigation are being eroded. The fare against a lawful industry want to liver babies. They are getting sued in courts are being politicized. That is a promote these lawsuits. One of our incredible numbers. That is a difficult very dangerous thing. As a result, law- Members said earlier: If litigation is thing. How do you deal with it? We suits are occurring in ways they should the only thing to keep the gun indus- voted on it. Forty-eight Members of not occur and are impacting our daily try in check, we ought to sue them. this body voted for that. But to a much lives. That is not right. If there is not a more significant principle, a violation I conducted a hearing in the Sub- cause of action, you should not sue of the established rule of law, is this committee on Courts of the Judiciary them. They are being sued and are hav- idea you can sue a manufacturer who Committee on the food industry. ing to expend hundreds of millions of produces a gun that does what it is sup- Should we sue the manufacturer of dollars in their defense. They tend to posed to do and gets in the hands of a food, Little Debbie’s, because some- win those cases at the bottom line. But criminal and they use it. body bought too many of them and be- they bring them, frankly, in big cities How should you normally think you came overweight and obese? a lot of times, where there is an anti- would sue a gun manufacturer? If he Thirty, 40 years ago those lawsuits gun hostility, where mayors want to buys a gun and you fire it and it blows would have been laughed out of court. crack down and eliminate gun owner- up and knocks out your eye. That is They don’t meet the principle. A per- ship. We virtually have eliminated gun what you are supposed to sue the man- son is responsible for what they eat ownership in Washington, DC. ufacturer for. If a person buys a gun and how much, not the person who pro- They are not happy with what the from Smith & Wesson and he aims it vides the cakes and cookies and Cokes legislation will do in passing the law. and fires it and it hits the target ex- and those kinds of things, unless that The elected representatives won’t pass actly where he aimed it, the gun dealer product is inherently dangerous and restrictions as tight as they would like is not responsible, if that was a lawful harmful to a person and the consumer to have or to eliminate gun ownership sale of the weapon. We set in this Con- does not know about it. We are getting anyway, so they want to do it through gress and the cities and the States set away from that. the backdoor, through litigation. I additional restrictions on the sale of With regard to gun dealers and man- don’t like their idea: If they can’t do it guns. When they do that and when ufacturers, this is the worst of all. The this way through law and regulations, dealers comply with that, they ought Federal Government and State govern- we ought to do it through litigation. not to be sued. ments have taken over the sale of guns. I remember Hodding Carter, who used If they violate those laws, don’t com- Regulations are many. I was a Federal to work for former President Carter. ply with the laws, or if they have abso- prosecutor for nearly 14 years. I pros- He was on ‘‘Meet the Press’’ one time. lute knowledge or actual knowledge a ecuted people for selling guns. If they He said something to the effect that: purchaser of a gun is going to use it for file off the serial number, that is a We liberals have gotten to the point a bad purpose, then they have a respon- crime. If the gun dealer does not write where we want the courts to do for us sibility. Absent that, they don’t. And down the serial number, he can be pros- that which we can no longer win at the they should not be sued. ecuted and put in jail. If he does not ballot box. This would be a good step in remov- get an ID from a person who buys a If we need to tighten up on gun re- ing from our overburdened courts a gun, if he does not ascertain and make strictions, let’s put the rule out here host of abusive lawsuits that have no that person sign a statement that they and debate that. But we don’t need to basis in principle and indeed should not don’t have a criminal record or make be creating bogus lawsuits against peo- be brought anyway. In fact, this legis- them sign a statement they are not ad- ple who are not doing wrong. lation does not change any principle of dicted to drugs or mentally unstable, I know the Presiding Officer was a American law, but basically clarifies it or if the dealer knows that and he sells JAG officer and served in the military. so these cases can be dismissed prompt- the gun anyway, then he is in violation I defended a lawsuit against the United ly rather than having to go through of the law. States Government because a veteran the length of time and the great cost There are waiting lists in States and in a veterans hospital walked off the that is going on in some of the areas of counties that dealers must comply grounds and was murdered. They sued this country where the lawsuits are with. If they don’t comply with those the hospital. There is a classical rule I being brought. rules, they can be sued—not only sued, have not forgotten: A criminal act is I know others want to speak on this they can be prosecuted and put in jail. not foreseeable. You are not normally issue. I see the Senator from Ohio and I have prosecuted and put in jail people expected, anyone, to foresee someone others. I believe this is good public pol- who sold guns illegally. That is a fact. will commit a criminal act. icy. It is time for us to work hard to es- If we want more regulations on how I defended that lawsuit on the tablish a more clear understanding of guns ought to be sold, let’s debate it grounds that, well, maybe he had got- litigation in America. It has become right here and see if it is justified. We ten lost and this or that, got hit in the confused. Congress has always had the have had all kinds of amendments to accident, maybe. But the principle that power to define litigation and the pa- put rules and bans and restrictions on the hospital is responsible for an inter- rameters of it when it is in confusion

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.042 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1549 and not working according to good about to do. This bill shields a certain most part, this bill requires a defend- public policy. We ought to speak out. I group of defendants. It establishes an ant violate a statute before he is liable. am glad there is bipartisan support for immunity. This bill would overturn We do not require this in any other this. I think we will pass this bill and over 200 years of civil law, 200 years of place in our law. In civil law, some- it will be a great step forward to im- tort law, 200 years of common law. It times it happens when you prove neg- prove the rule of law in America. would overturn over 200 years of civil ligence, the defendant did violate a I yield the floor. law in this country and fundamentally statute, but that is not a requirement. The ACTING PRESIDENT pro tem- change our justice system. It would, in That is not something in a civil suit pore. The Senator from Idaho. essence, turn the civil justice system you have to prove. Mr. CRAIG. Mr. President, I will be and our tort law on its head. It would When you study law, one of the first brief. The Senator from Ohio has been do this by denying one group of our things you learn is the difference be- on the floor a good long while and de- citizens access to the court system. tween civil law and criminal law, and serves to be heard. Most fundamentally, the problem that someone can be liable in civil law As you know, we are in a postcloture with this bill is it sets a precedent. It to someone else and have to pay mone- environment on a motion to proceed. I will not affect that many victims, that tary damages and it not be a crime. would hope by early afternoon we can is true, but the real reason to oppose That is a basic concept. actually get on the bill and begin to this bill is for the precedent it sets, be- What we are saying in this statute is, consider some amendments on this cause if we do it for these victims, under these circumstances, with an ir- critical piece of legislation. It has been what is to stop us from doing it for responsible gun dealer, that the plain- portrayed by many in many different other victims? And if we don’t care tiff would have to prove that the irre- ways. I would ask the Senators to pick about these victims, will we care about sponsible gun dealer violated a crimi- up this very small document, 1805. In other victims in the future, and will we nal law. We don’t do that anywhere fact, there are exactly 11 pages of big do it to other victims who maybe some else in our law. Why do we want to do print so all of us can clearly read it. of us care about? it in this case? Why that special pro- I ask Senators to go to section 4 of Civil liability law is about encour- tection in this one case? the bill and read what we are doing. In aging people and industries to take re- If those who support this bill think a very narrow way, we are denying a sponsibility for their actions, and it is that is such a great idea that we want third party the ability to reach also about protecting victims. It is to build this impediment into this law through the law and say to a law-abid- about deterring irresponsible behavior or the requirement into our civil law ing gun manufacturer and a law-abid- by making sure there are incentives in that you have to violate criminal law ing firearms dealer: When you sold that place to encourage people to behave re- before you can sue someone, if that is weapon, it down the road got misused sponsibly. It is about preventing bad such a great idea, let’s just pass that in a criminal act and, therefore, you conduct and holding people account- law for everything. So in any civil suit are responsible. able under our common law. in this country, you would have to find Shame on us for suggesting that as a It is not and should not be about un- a violation of criminal law. I don’t basis of law today in our country. We dercutting the ability of innocent vic- think we want to do that. have denied it. We have always held tims to hold irresponsible people ac- If it is good for this victim, why is it the individual responsible. That is countable for wrongful and negligent not good for everything? Obviously, it clearly where we ought to go. That is actions. This bill, unfortunately, does is not. Obviously, we are not going to why I think this ought to be a clean just that. It undercuts the ability of in- do that. I do not see anybody sug- bill. There are some who want to offer nocent victims to hold irresponsible in- gesting that. different amendments. We can deal dividuals accountable for harmful and Clearly, this bill would make a major with them on a different day in a dif- negligent actions. change in traditional liability law and ferent way. Let’s keep this bill clean. The fact is, this bill cuts to the core is something we should more thor- This is tort reform in the very nar- of civil liability law and would essen- oughly consider and debate before we rowest of margins, and I hope Senators tially gut it. As my colleagues know, move toward a vote. Why is there such can work with us to make sure that in right now under current law through- a rush to pass this legislation? This is final passage we have a clean bill. out this country, to prove liability in a legislation that I might point out I yield the floor. civil suit, the plaintiff only needs to never had a hearing. No witnesses were The PRESIDING OFFICER (Mr. prove the defendant acted in an unrea- called. No one came in. Yet we are here HAGEL). The Senator from Ohio. sonable manner, if the defendant failed on the Senate floor today. No discus- Mr. DEWINE. Mr. President, I have to meet his duty to act in a responsible sion about this. Why is there this rush the utmost respect for my colleague fashion. That is basic common law, to bring this bill to the Senate floor? from Alabama who just spoke most elo- basic civil law, that his or her failure Why the rush to judgment? quently, and I certainly have respect led to harm to the victim. Nothing I have two thoughts. I guess the main for my friend from Idaho who has more than that is required. reason we are here is because there are brought this bill to the floor. I cer- We do not normally require a victim the votes here to do it. There is the tainly have great respect for the many to prove that the defendant is guilty of power to pass this bill. When there are firearms dealers who are legitimate, a violation of the law, but this bill, the votes, it can be done, and I can honest, and hard working, and manu- however, provides that a victim cannot count. I know which way this vote is facturers around this country, but I sue a gun dealer for damages resulting going to come out. There are the votes must oppose this bill. from illegal actions of a third party to pass it. So when there are the votes, I oppose this bill because it denies without also showing that a dealer is I guess the job can get done. But that certain victims in this country their guilty of a violation of the law. So that does not make it right. day in court. It singles out one par- in this bill, in effect, for a plaintiff to I ask my colleagues who have cospon- ticular group of victims and treats prevail in lawsuit and recover damages, sored this bill or are thinking about them differently than all other victims he or she would not only need to prove voting for it to think one more time, to in this country. It sets them apart. It that a gun dealer acted with neg- think about the precedent that is being sets them aside, and it treats them dif- ligence, that the dealer was irrespon- set. Yes, undoubtedly there are frivo- ferently. It denies them their access to sible, but would also have to prove that lous lawsuits that are being filed court. the gun dealer also broke the law. In against this industry. There is no It does not put a limit on their law- other words, the plaintiff would have doubt about that. But there are legiti- suit. It does not put on a cap. It is not to prove the gun dealer violated a stat- mate victims who when this legislation what we were talking about yesterday. ute or was guilty of a crime. is passed will not be able to file their Rather, it says they are barred from There is one exception to this general lawsuits. coming to court. rule built into this statute we are de- Why not trust the good judges we It is unprecedented what this Senate, bating, and that is the so-called neg- trust in every other civil suit in this if I can count the votes correctly, is ligent entrustment exception. For the country to make the decision to throw

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.044 S25PT1 S1550 CONGRESSIONAL RECORD — SENATE February 25, 2004 out those frivolous lawsuits? There are the ability in law enforcement to trace as Bull’s Eye Shooter Supply for allow- frivolous lawsuits filed in this country these guns better today. ing John Malvo to walk off unnoticed every day in all kinds of cases, and we I think some of the irresponsible—no- with a 3-foot semiautomatic assault trust the good men and women, the tice I say ‘‘irresponsible’’—gun dealers rifle. In fact, there were allegations judges who sit on our benches, to get are worried about that because they that Bull’s Eye not only failed to re- rid of those cases. know their days are numbered. They port the missing assault rifle, this par- By and large, they do a pretty good know when they ship out all of these ticular missing assault rifle, but also job kicking them out of court. Why pe- guns, put them out on the market, failed to report over 230 other missing nalize the people who might have a le- guns that are just getting by today, firearms because Bull’s Eye was never gitimate case and kick them out and they know they are going to be able to aware that over 230 guns were missing, deny them, in fact, the opportunity to be better traced and they know they in total. That is absolutely unbeliev- ever get to court at all? are going to be more liable and we are able. The precedent is what I worry about. going to have the ability to trace It is, of course, totally unacceptable I worry about the victims in this case, them. for a firearm dealer, a retailer, to so but I worry about the precedent be- I believe the passage of this legisla- poorly monitor and protect its stock. If cause if we, who have the votes to do tion will be more damaging in the fu- these allegations are proven true— this today to this group of victims, say ture than it is even now. As ballistics again, I don’t know if they are true— we are going to do it because we have technology improves, law enforcement then Bull’s Eye should be held account- the votes to do it, we have the power, will be better able to find the original able for the negligent fashion in which whether it is because this lobby is source of crime guns, and that often- it handled these weapons. Under the more powerful for whatever reason, times would be back to a dealer who provisions of this bill, however, such what about when the next lobby comes should not have sold the weapon in the behavior would be protected from pri- along and they happen to have the first place. To the extent that we im- vate lawsuits. We would in effect be votes? Maybe it is a set of victims you munize these negligent dealers now, we saying it is OK to allow unknown peo- worry about or you care about who will will be decreasing their incentive to ple—without, of course, background be blocked from coming to the court- act responsibly and therefore deny checks—to walk off your premises with hundreds of guns, be they criminals, house and filing their case. What if it is their victims their day in court. terrorists, or in this case an underage your child, your mother, your father, There is another aspect about this bill that has not been talked about a serial killer. your wife, or your husband, and they There is another case in Worchester, lot, and that is the fact that it is retro- happen to be among a group of victims MA. This bill would not only prevent active. How dare us in the Congress who some lobby has put together recovery for the victims of the DC snip- come to the Senate floor and wipe out enough votes to convince Congress to er, but the family of a young man every lawsuit that has been filed in deny them the access to come to court? killed in Worcester, MA, by the name this country that would come within Their day may come. So, yes, I worry of Danny Guzman would also be barred the parameters of this bill. How arro- about the victims we are going to dis- from recovering for the negligence that enfranchise and block from coming to gant of us to do that. In this Congress, caused his death. In that case, Danny the courthouse by this bill. But more we have the arrogance to come to the Guzman was shot and killed with a gun than that I worry about the precedent floor and pass legislation that wipes taken from a gun maker by one of his we are setting by this bill. every case out in every State in the own employees. The employee had a I worry about the day in the future Union where there is a lawsuit pending. significant record of violence and drug when another lobby group, another Did we really get elected to the Senate abuse but was able to steal the gun be- Congress, has put together enough to do that? That is what this bill does. cause apparently the gun maker al- votes to come to this floor to deny an- It will kick people out of court. It lowed this criminal free access to his other set of victims the right to have would not just bar people from coming guns without any legitimate check of access to the courthouse. I think that to the courthouse. That is not enough. his background and also failed to im- is what should bother everybody else in No, what this bill does is kick people plement effective security procedures this Senate. out who are already in court. It kicks that would have prevented the theft. Let me make a prediction about this out people on whom judges have al- Indeed, this gun maker could not ac- group of victims. Yes, the passage of ready ruled summary judgments, mo- count for at least 50 of his firearms. If this bill will get rid of some frivolous tions to dismiss, and have already this bill were to pass, Danny’s family lawsuits. There will be lawsuits that made decisions that the case is at least would be barred from continuing their will never be filed because of this bill, valid enough to go forward and to go to suit against the gun maker for neg- no doubt about it. But let me make a trial. We are saying, oh, no, judge, we ligence in completely failing to screen prediction to everyone who is thinking are now going to kick that case out of its employees or secure its facilities to about voting for this bill. Mark my court and take it away from you and prevent repeated thefts of guns. words, if this bill passes, in the future throw that person out of court. To me, Let me talk about another pending there will be a case or cases that will if we do that, it would be the height of case—again, I emphasize, this is a be so egregious and so bad that when arrogance. I think that is wrong. pending case—that would be affected they are read about and it is found out It is not my job to judge these cases. by this bill. In this case, a couple en- that that victim could not file a law- It is not my job to determine whether tered a gun shop. This was referred to suit and could not file that lawsuit be- one of these cases should proceed or by my colleague from California a few cause this Senate voted not to allow should not, or determine whether minutes ago. A couple entered a gun that victim to file that lawsuit, it will someone is negligent or not negligent. shop. The man identified several weap- be so bad, it will turn one’s stomach. But I don’t think, on the other hand, it ons he was interested in purchasing. Mark my words, that will happen if we is my job to say someone should not The woman he was with was not in- pass this legislation. have the right to go to court and volved in the discussions between the A second reason which has not been present that to a judge and ultimately, man and gun shop owner and clearly stated or discussed as to why there is in most cases, to present that to a jury. didn’t know much at all about guns. such a rush to judgment and why some That is fundamentally the American Then she purchased these guns and she people are in such a big hurry to get way. paid cash. She paid cash for them. this bill passed: We are having a great Let me talk about a couple of cases. The man in the gun shop, because he increase in crime technology. One of We don’t need to look too far to find le- was a convicted felon, was prohibited, the great things that has happened in gitimate cases that would be dismissed of course, from purchasing guns. The the last few years is our ability to if this bill were to become law. Every- woman, however, was allowed to buy trace guns and ballistics. We are put- one remembers all too well the trage- them on his behalf. The man then ille- ting great systems together in this dies of the DC sniper cases. Some of the gally sold the guns on the black mar- country, and many of us in the Senate victims of the DC snipers are suing the ket. One of these guns was used to have worked hard to do that. We have Washington State gun retailer known shoot at least one police officer.

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.047 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1551 Clearly the gun shop owner should they are probably going to get this and gore in the streets of cities from have known what was going on. The passed. But that doesn’t make it right. the misuse of firearms used illegally woman, while technically the pur- Victims are going to suffer and there and irresponsibly that have caused so chaser, obviously was merely carrying will be victims in the future who will much heartache and misery for fami- out the wishes of a convicted felon. be denied their opportunity to go to lies across America. Frankly, I think Therefore, the owner should never have court. they are ignoring the obvious—that un- sold her the guns in the first place. It is wrong. I support the second less we ask those who own firearms to That would appear at least to be neg- amendment. I support individuals’ establish a standard of use that keeps ligence. Obviously the criminal who rights to own guns. I support gun man- them away from those who misuse shot the police officer should go to jail. ufacturers. I support legitimate gun them, that we, in fact, are inviting But the dealer who negligently sup- dealers. But this is wrong; it is unfair. more restrictions on the legal use of plied that gun to the criminal should It is unfair to victims. But more impor- firearms. This bill—this outrageous be civilly liable for his negligence as tant than that, it is a horrible prece- bill—is going to draw us again into a well. However, if this bill becomes law, dent. national debate which is long overdue. it is likely the gun shop owner will be If we do it this one time, what is to Since President Bush was elected and immune from liability. stop a future Congress, where the votes during his campaign, the NRA said As I mentioned earlier, there is a pos- are maybe configured differently, from once he is in the White House we don’t sible exception written into the law saying, oh, there is another group of have to worry about any restrictive known as negligent entrustment, that victims and we are not going to protect legislation. Since President Bush’s might arguably, in this case, allow the them. We are not going to protect election, we haven’t had an honest de- lawsuit to go forward. We don’t know. them. bate about a gun issue in Congress. But many courts have construed that If we deny this group of victims their That is a fact. Gun crimes continue, exception in the past narrowly under rights, what is to stop a future Con- gun deaths continue, and the prolifera- the common law, so it is a close call in gress from denying another group of tion of weapons in the hands of those a case such as this. Candidly, though, victims their rights? who misuse them continues. We ignore why in the world would we even want Let us think about that before we it, but we can’t ignore this. This is not to take a chance this sort of irrespon- cast our vote. I thank the Chair. I yield an effort to restrict gun ownership. sible behavior might be immune from the floor. This is an effort to restrict the legal liability? The PRESIDING OFFICER. The Sen- ranks of the victims of gun crimes. The point is, we can argue these ator from Illinois. There is a crime victims’ amendment cases. I know some of my colleagues Mr. DURBIN. Mr. President, I want which has been supported by both sides might come to the floor and say under to first commend my colleague from of the aisle—Senator KYL, a Repub- our bill maybe these cases could pro- the State of Ohio. I was listening to his lican, and Senator FEINSTEIN from ceed. Maybe they could proceed. The presentation. It was a reasoned presen- California, a Democrat. They make an point is, Why take a chance? Why take tation which I think analyzes this bill impassioned plea for a constitutional a chance? I would argue the three ex- in a fair manner. I want to also salute amendment to make certain that amples I have given. This bill could his political courage. It is not easy on crime victims and their families will be stop these cases cold in their tracks, his side of the aisle to stand up and op- present in important parts of criminal and in each one of the cases I have pose this bill. He has done this time proceedings. It is a compelling argu- cited, we have lawyers we could bring and again on many issues. I am happy ment. I had my personal questions as in, if we could get a hearing, who would to count him as a friend and as a col- to whether it rises to the level of a con- swear under oath these cases, in their league whose judgment I value very stitutional amendment, but I would be legal opinion, would be stopped by this much. I thank the Senator from Ohio happy to enthusiastically support a bill. We could debate that. But the for his continuing leadership in this Federal statute that would establish point is, why take the chance? Why Chamber. that right. pass a bill that would create that kind Mr. President, what is this bill? S. I believe when it comes to victims, of legal impediment to people pro- 1805 is a bill brought to the Senate they need to be a part of the process of ceeding? floor by the National Rifle Association prosecution. They need it not only be- Again, we get to the point I raised on behalf of firearms manufacturers, cause they are important to the proc- earlier, and that is the inequity, the in- dealers, and their own trade associa- ess but because it brings closure in equality of creating two classes of vic- tion. It is a bill that has been intro- their own lives. tims in this country. Other industries duced to insulate those manufacturers The many Members of the Senate face legal challenges. Other industries and dealers and the NRA itself from li- who rush to the side of crime victims have had lawsuits filed against them ability for wrongdoing. It is unimagi- for this constitutional amendment are they don’t like. Other industries face nable that we would name any other the same Members of the Senate— suits that in their eyes many times are industry in America and say that you many of them—who are supporting this frivolous and they have cases thrown can sell your product and not worry legislation which will close the court- out of court. Other industries are in- about being held accountable, if you house doors to crime victims and their volved in cases where many people die. did it in an irresponsible and negligent families across America when firearms We understand that. But we don’t way. We wouldn’t think of doing it, but are involved. Don’t tell me your sym- grant this kind of immunity from civil we are doing it with the gun industry. pathies are with crime victims. If your liability. I can count votes. I can count the co- sympathy is with the victims of crime, For example, the auto industry. sponsors. A majority of my colleagues you have to vote no on this. There are 42,000 or 43,000 Americans support this bill. I can’t explain it. I Let me give you an illustration in who die in car accidents every single could never explain it. In a country my home State of Illinois. year. We wouldn’t think of coming to where we value the right to own and Five years ago, in June of 1999, a man the floor and granting any kind of im- use firearms legally and responsibly, named Benjamin Smith went on a munity like this for the auto industry, we have a bill which says we will pro- shooting rampage in my State. You would we? No, we wouldn’t. We tect those who sell and use firearms il- may remember it. It was finally discov- wouldn’t think of that for the world. legally and irresponsibly. Why? Why ered that he was linked to a group We can each come up with our own ex- does the Senate reach this low point— known as the World Church of the Cre- ample. possibly one of the lowest points in its ator. He was a follower of a white su- But here we are today picking one in- history when we are carving out an ex- premacist. And in his mania, this de- dustry for no reason. We all know what ception from liability for gun manufac- mented disciple went on a shooting the truth is, for no other reason than turers and gun dealers? Maybe my col- spree across the Midwest. In June 1999, that they have simply put together the leagues who support this don’t watch Benjamin Smith attempted to purchase votes to do it. They are here and they the evening news in cities across Amer- guns from a licensed gun dealer. He have the votes. If I count correctly, ica. Maybe they do not see the blood was denied because a background check

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.050 S25PT1 S1552 CONGRESSIONAL RECORD — SENATE February 25, 2004 turned up a domestic violence restrain- These five survivors and families they have no right to go to court, as ing order which prohibited him from brought a lawsuit. The case is not this bill says, and hold a dealer respon- purchasing a gun. So he turned to based on the fact that the gun was sible, a dealer that is literally feeding someone he knew on the street who present and used in these crimes. The firearms and Saturday night specials could buy a gun—a gun trafficker case against the manufacturer, Bryco to gun traffickers? That is what this named Donald Fiessinger. Fiessinger Arms, is based on the intentional and bill says. routinely bought handguns—usually reckless sales and distribution prac- I point out the exceptions in this bill Saturday night specials, cheap little tices because Bryco took no reasonable are so narrowly drawn that even if this crime guns—from a place called the steps to ensure that their guns were gun dealer pled guilty to count 7 for Old Prairie Trading Post in Pekin, IL. not diverted to prohibited customers. not seeking approval from the Illinois Mr. Fiessinger would then resell these Although Bryco asked the court to State Police before the sale, the vic- guns through classified ads in a local dismiss the case, the court ruled that a tim’s case would still be terminated. newspaper. Over a 2-year period, claim of public nuisance should go for- The third exception provided in the Fiessinger—this gun trafficker—pur- ward against this manufacturer. bill requires that the violation of law chased 72 guns, three a month on aver- In October 2000, the gun dealer, Rob- be a proximate cause of the harm for age, from the Old Prairie Trading Post ert Hayes of the Old Prairie Trading which relief is sought. in Pekin, IL, and then turned around Post, was indicted on 13 counts of vio- In this case, if Hayes, the dealer, had and sold them. lating Federal firearms sale laws be- sought approval from the State police, The gun store never even asked at cause he didn’t get approval for the the police would have granted it be- any time whether these guns were sales from the Illinois State Police be- cause Fiessinger was not a prohibited going to be used for Fiessinger’s per- fore transferring guns to that traf- purchaser. Therefore, regardless of sonal use. ficker, Fiessinger. The seventh count whether Hayes violated the law, I think it is pretty obvious. Buying of the indictment concerned the gun Fiessinger would have been able to pur- three guns a month for 2 years—I don’t used in the Benjamin Smith shooting chase the weapon and resell it to care whether you are a target shooter spree. Smith. So there is no way around it. or interested in self-defense, I can’t Robert Hayes pled guilty to one This bill is designed to stop those imagine a need for the 72 cheap Satur- count of making an illegal sale of a gun families and those victims from hold- day night specials which Fiessinger and was sentenced to 2 years of proba- ing an irresponsible gun dealer for ped- was buying from the dealer. tion. Fiessinger also pled guilty and dling guns to a trafficker used in the The manufacturer of these cheap was sentenced to 10 months in prison commission of a crime. crime guns, of course, didn’t place any and 2 years of supervised release. The Senator from Ohio said it best a restrictions or conditions on dealers Despite this acknowledgment of few minutes ago: It is an outrage that like the Old Prairie Trading Post. It criminal activity by the dealer and the we would say, retroactively, we are didn’t say you should prevent the large gun trafficker regarding the sale of going to throw these suits out of court; volume sale of guns to people who are firearms, the lawsuit brought by the that we would say to these families, obviously turning around and reselling victims of Benjamin Smith would be these crime victims, they will lose them to gun traffickers. As a result, this Benjamin Smith terminated by this bill. The families their day in court. Why? To protect a bought two guns from Fiessinger, and and the survivors from the shooting special interest group—gun manufac- then he went on a 3-day, hate-filled spree would have lost and will lose turers, gun dealers, and trade associa- shooting spree across Illinois and Indi- their right to go to court because this tions such as the National Rifle Asso- ana. It was a shooting spree inspired by bill says that even if the manufacturer ciation. his hatred and his bigotry. He targeted is irresponsible in distributing the Take a step back for a moment and racial and religious minorities. When it weapons and the dealer is irresponsible look at the big picture. We have a case was all over, he killed two people and in selling those weapons to a traf- that the court in Illinois has ruled is wounded nine others. ficker, this bill says they cannot be not frivolous, a gun dealer and traf- Five of those victims joined in a law- held accountable despite the fact that ficker who have already pled guilty to suit against both the manufacturer of people died and were injured on this illegal firearms sales, and yet this leg- these cheap Saturday night special shooting spree. Although this gun deal- islation would close the courthouse weapons, as well as the distributor. er, Robert Hayes, pled guilty to mak- doors for the tragic victims of this They included Sherialyn Byrdsong—we ing an illegal sale, the gun he pled shooting spree. know that name in Chicago and in the guilty to illegally transferring was not Let me give one other case that Midwest. It was her husband, Ricky, a the gun used by Benjamin Smith. That amply illustrates why this bill is so former basketball coach at North- is crucial. Smith’s gun was under count bad. Michael Ceriale, a 26-year-old Chi- western University, an African Amer- 7, an indictment Hayes did not plead cago police officer, was shot by a 16- ican, who was shot in the back and to. Therefore, the criminal conduct of year-old member of the Gangster Disci- killed as he walked with his children the dealer did not cause the shooting. ples, one of the terrible street gangs down their residential street in Skokie, So the exception in this bill would not that, unfortunately, wreak havoc on IL; on behalf of the family of Won Joon help. many neighborhoods of the great city Yoon, a 26-year-old South Korean grad- As a result, Hayes, the gun dealer, of Chicago. This police officer, 26 years uate student at Indiana University, the Old Prairie Trading Post, was free old, was killed conducting narcotics who was shot twice in the back and to argue that the victim’s case should surveillance. Once again, the mere use killed on the steps of the Korean be dismissed because he could not be of the gun is not the underlying cause United Methodist Church in Bloom- held liable for the lawful sale of a gun. of action. In this case, his family sued ington, IN, picked out of the crowd be- The court ruled against his motion and the manufacturer, Smith & Wesson for cause he had the appearance of an held that it would allow a claim for shipping the gun used to kill the officer Asian; Rev. Stephen Anderson, a min- public nuisance and negligence to con- to the distributor, Camfour. Smith & ister who was shot on his way to join tinue. If this case were frivolous, the Wesson sold this weapon to Camfour, his family at a Fourth of July celebra- court would have dismissed it. It was even though it knew or should have tion; Hillel Goldstein—whom I met— not frivolous. People were dead, in- known that Camfour, the distributor, one of six Orthodox Jews picked out by jured, and someone should be held ac- was part of a core group of irrespon- Benjamin Smith on his shooting spree countable for it. sible distributors that act as the initial when he drove through a predomi- Why, then, should we in Congress, in distributors for nearly 80 percent of the nantly Jewish neighborhood in Chi- the Senate, step into this lawsuit, not firearms traced to crimes in the city of cago, hunting for Jewish families walk- only prospectively but retroactively, Chicago. ing to the synagogue for temple serv- and say to the families of the victims There is ample evidence that when ices; and, Steven Kuo, another grad- that they have no right to go to court, we trace back crime guns, we find uate student at the University of Illi- to hold the manufacturer accountable there are a handful of irresponsible gun nois. for irresponsible distribution practices, dealers that are selling these guns on a

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.052 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1553 wholesale basis to gangs and to gun I remind my friends, do not stand be- That is why the Major Cities Chiefs traffickers. It is outrageous that this fore the Senate, saying how much you Association opposes this legislation. continues in this country. care about crime victims, how much They know what this means. They For those irresponsible gun dealers, you care about the police who risk know that police officers across Amer- there is good news in S. 1805. You are their lives every day for us and then ica will be targeted because of this bill. off the hook. S. 1805, brought to us turn around and support this terrible They know their families, once they thanks to the National Rifle Associa- legislation. are killed in the line of duty, will have tion, says that if you are one of those You cannot have it both ways. You fewer options to turn on those who irresponsible gun dealers selling to cannot let guns flood America’s streets have used guns and those who have traffickers, selling to criminal gangs, to be used with criminal intent on a purchased guns illegally. They know shooting innocent children on the day-to-day basis, guns that are sold to that. street, killing police officers, you are criminal gangs, guns that are sold to The Major Cities Chiefs Association, off the hook with S. 1805. deranged individuals. You cannot stand the Brady Campaign To Prevent Gun They argue it is part of your second by and watch that happen and then Violence—all of these organizations amendment right to be able to sell protect those responsible for the sales have made it clear this is a terrible guns on a wholesale basis to be used by with this legislation. That is exactly bill. It is a bill that should be defeated. criminal gangs across America. Incred- what is happening. I sincerely hope my colleagues will join ible. I thank the Senator from Rhode Is- in support of stopping and thinking This Camfour, the distributor, then land, Senator REED. He has been a lead- twice before they vote for its passage. shipped the gun to Strictly Shooting, er on this issue. We have talked about I yield the floor. even though it knew Strictly Shooting the DC sniper case, which I know will The PRESIDING OFFICER. The Sen- was part of 24 gun dealers that were re- be addressed time and again during the ator from Idaho. sponsible for 27 percent of the crime course of this debate. I make it clear Mr. CRAIG. Mr. President, let me re- guns recovered in the city of Chicago. that this was no isolated case in the mind my colleagues again that we are On August 15, 1998, the gun found its District of Columbia when these two in a postcloture environment. We are way into the hands of a Gangster Dis- men went on a shooting spree killing hoping we can get on the bill and hop- ciple gang member, who killed a 26- innocent people in every direction. ing we can look at some amendments. year-old Chicago police officer, Mi- Sadly, these things are being repeated I do have to respond to try to keep this debate clear and honest and the chael Ceriale. Unfortunately, this case, over and over. even though it has been upheld by the To my friends who are following this RECORD representing what it ought to court of appeals in Illinois, would be debate who are hunters, sportsmen, represent. My colleague from Illinois says the dismissed because its cause of action is target shooters or own a gun for the reason we have this debate today is be- based on the claim of public nuisance, self-defense of themselves and their cause of George W. Bush. He forgot which does not fall into one of the nar- family, I plead, stop for a moment and that 10 Democrat cosponsors and his row exceptions written into this bill. think about this. To protect your own leadership are cosponsoring this Now, all who stood with pride and ad- rights in America, to use guns legally bill and are openly advocating its pas- miration for the men and women in and responsibly, you must tell those sage. This is not about George W. Bush. uniform, those policemen and those like the National Rifle Association, This is about the rights of Americans firefighters who rose to the occasion on that their agenda on this issue is too under existing law, and also frivolous September 11 and protect us every sin- extreme. What they are trying to do is third-party lawsuits that we ought to gle day, all Members in the Senate who to protect those who use guns illegally block. That is what the essence of this say to these men and women that when and irresponsibly. In their passion to debate is about. they put their badges on in the morn- do that they are jeopardizing your Now, certainly the Senator from Illi- ing as police officers and put their lives rights. They are raising a question nois can say what he wishes to say on on the line that we can never thank which ultimately will come back to the floor. Will George W. Bush sign this them enough, all who give speeches you, the legal owner of a firearm, as to bill if it gets to his desk? He says he back home about the law enforcement whether or not we have gone too far in will. I would think any law-abiding officers who keep our communities America. American U.S. President would want to safe, should keep in mind that S. 1805 is We were told, of course, when Presi- preserve law in this country, the kind a cop killer bill. S. 1805 says that cop dent Bush was elected to expect this. of law that would suggest that any killers such as the Gangster Disciple The National Rifle Association would President would want to reinforce cen- gang members who killed Michael have its day. We were told they have a turies of legal precedents based on one Ceriale in the city of Chicago, those friend in the White House. It is abun- premise, individual responsibility. cop killers are going to get a free ride dantly clear that President Bush is Are we suggesting that, as the Sen- because of S. 1805. The family of this going to sign this bill. But what is not ator from Illinois suggests, a gun man- 26-year-old police officer, going to clear to me is how my colleagues in ufacturer ought to be liable for a crimi- court to recover money for those irre- good conscience can support this legis- nal act of a third party? Well, he used sponsible activities by the manufactur- lation. I cannot understand this. Day the word—let me see; I have written it ers, distributors, and gun dealers, will after weary day we come to the floor of down here—‘‘establish a standard of have the courthouse door slammed in the Senate and say that individuals use.’’ I believe that was the term used. their faces. across America are going to be denied How many automobile dealers estab- Cop killers will love this bill. Frank- the right which we have considered lish this standard of use of their prod- ly, those that supply the guns to these part of our American birthright, the uct when it is manufactured in his cop killers should be ashamed of them- right to walk into a courtroom, rich or State and sold in the marketplace, that selves and be held accountable. But poor, to stand before a judge in a court it will be used safely and lawfully? they will not be. of justice, and to ask for fair treat- Now, would any automobile manufac- So in those two illustrations from ment, to ask that others be held ac- turer intentionally sell a car knowing my home State, crime victims of a countable, and to let that court, that a drunk was going to get in it and wipe shooting spree will lose their right to judge, that jury make that decision. out a teenager or a teenager wipe out go to court, to hold gun traffickers re- Clearly, we are seeing, day after day, an adult? sponsible under this bill, and the fam- an attempt to erode that right to go Mr. DURBIN. Will the Senator yield ily of a fallen Chicago police officer before the jury of your peers, your for a question? who gave his life trying to stop the neighbors, and to let them decide what Mr. CRAIG. Not at the moment. I drug trade in that great city will have is just and what is right. In this case, want to be quick here so I can yield to the courthouse doors slammed because unlike the other cases, it is not just a one of your colleagues. the National Rifle Association wants matter of money, it is a matter of life Of course they would not. this bill and wants it desperately. That and death—life and death for crime vic- Does any manufacturer of a legal is a sad commentary. tims, life and death for police officers. firearm make the clear assumption

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.053 S25PT1 S1554 CONGRESSIONAL RECORD — SENATE February 25, 2004 that it is going to be used illegally? Of been strangled to death by lawsuit but believe that written between the course they do not. They make them after lawsuit after lawsuit. That is lines are three letters: N-R-A. Isn’t under the guidelines of the law. They what is happening. that what it is all about? So the trade abide by the law. And we protect those We have lost thousands of legitimate association that is being protected by who do. We do not—we do not—protect jobs in this country because this indus- this bill is the National Rifle Associa- those who do not abide by the law. try is a very small industry in total. tion? The Senator also went on to say that Put it all together, and it is less than If it isn’t about trade associations, this would somehow protect trade asso- a Fortune 500 company. That is why it strike the whole thing. Get rid of it. It ciations. Go to the bill. You have held is extremely cautious about how it op- is all over this bill, protecting trade as- it up. I wish you would read it in de- erates within the law, and it is why our sociations. tail. It is not the intent of our bill to judges have recognized the frivolous I might say his reference about do so. In fact, the Daschle amendment character of these lawsuits and have transfers to individuals knowing that clarifies that we do not necessarily thrown them all out. they will use it for a crime, the legal protect trade associations. Well, then The problem is simply this: It costs standard most of us learned in law you better talk to Senator DASCHLE. hundreds of millions of dollars to argue school is ‘‘knew or should have He is the amender of the legislation the law and to argue before the courts known.’’ There is a world of difference that is before us to clarify that point. and to continue this legal dance that between knowing you are going to use We believe we have effectively clarified certainly those who are now engaged in a gun for a crime or the fact I should it, and the Congressional Research it put law-abiding manufacturers and have known it. Because Mr. Fiessinger Service says we have done just that. dealers through. Well, that is going to was buying three guns a month for 2 So if a trade association acts neg- be part of the argument we look at straight years, at some point I should ligently, acts outside the letter of the here. have known something is odd about his law, then they are every bit as liable as But I do ask our colleagues to focus behavior. He was not buying guns for they would be under current law. So we on the bill, to understand how nar- personal use or for self-defense. He was do not reach out to do that. rowly it has been designed. It is a prod- a gun trafficker. Do we close the courthouse door? Ab- uct of a bipartisan effort, not a single- Did I know as a dealer that he went solutely not. The plaintiff makes it to interest effort but a bipartisan effort, outside the door and sold it to someone the courthouse, with his or her attor- to reform our tort process in a way to who used it for a crime? There was no ney. They argue it before the judge. deny a very particular frivolous kind of way I would know it. I was inside the The judge weighs it in light of the lawsuit of the kind that is addressed in store. But should I have known? You law—if this were to become law—and S. 1805. don’t include that standard in your makes the decision as to whether that I yield the floor. bill. You intentionally exclude it be- case can go forward. I think that is The PRESIDING OFFICER. The Sen- cause it is the obvious and real life clearly an important argument that ator from Illinois. standard people are held to. needs to be established. Mr. DURBIN. Mr. President, I wanted Now that I know this is a jobs bill, I As to the argument about lawsuits to ask a question of the Senator from will have to look at it long and hard. involving, what they describe as, high Idaho but he did not have an oppor- We need jobs so desperately in America volume gun sales—I think he spoke to tunity to yield, so I will make a state- that we are going to close the court- a tragic situation in Illinois—the regu- ment and then yield the floor to the house doors to the widows and families lations of the numbers of guns that can Senator from Washington who has been of slain police officers for fear if they be sold in a single transaction, how- waiting patiently. recover from a gun dealer who is sell- ever, are not the job of the courts. I missed it. I am sorry, and I apolo- ing guns to criminal gangs, somehow They are the job of the legislators. gize. I thought this was a bill to pro- or another that is going to cost us jobs. They are that Senator’s job and this tect a special interest group, and it What a sad rejoinder that is the de- Senator’s job, if you can gain a major- turns out it is a jobs bill. If I had only fense for this bill. ity of the votes to establish a certain known that. We have lost almost 3 mil- I yield the floor. number of gun sales per day. The job of lion jobs under this President, and this The PRESIDING OFFICER (Mr. the dealer is to check the background, is being offered to create jobs. I have to SUNUNU). The Senator from Wash- to check the legality, and to do so take another look at this. Because, ington. openly and knowingly. frankly, if protecting gun carnage on Ms. CANTWELL. Mr. President, I am Now, having said that, let’s talk the street is going to create jobs, where glad this debate has finally turned to- about the dealer. In S. 1805, we exclude does that leave us? Where does that ward jobs. For the last 2 days we have from its protection actions brought leave us? If we reduce gun violence on been having a debate about what against a transferer convicted under the street and the number of victims, groups to exempt from liability. One of section 924(h), title 18 of the United it is going to cost us jobs. Well, I guess the groups we need to be talking States Code, or a comparable State fel- you can argue that. It would be less about—because they have paid a heavy ony law. 18 U.S.C., section 924(h), pro- work in the trauma centers, less work price for the liability of our economy— vides: whoever knowingly transfers a in emergency rooms, less work in the is the unemployed workers in America. firearm knowing that such firearm will rehabilitation centers from the gun vi- Because we won’t reinstate the federal be used to commit a crime of violence olence victims. unemployment benefits program, un- or drug trafficking crime shall be im- I guess we would lose some jobs. I employed workers are being held liable prisoned not more than 10 years, fined guess the Senator from Idaho is right. for our economic recession. in accordance with this title. What a price to pay—your money or I am glad my colleagues are finally S. 1805 does not wipe out this provi- your life. talking about jobs. We need to be ques- sion of the United States Code. We in- The argument has been made we have tioning whether jobs are being created tentionally narrowed its focus so that to support this bill to protect Amer- in this country. We need to ask wheth- would not happen. ican jobs. Crime victims and their fam- er we believe in the President’s eco- The Senator from Illinois is right- ilies who have had someone killed or nomic forecast for this year, in terms fully concerned about the trafficking maimed with a weapon won’t be able to of the job growth he says is going to of firearms, as am I. I certainly do not go to court to hold the manufacturer take place, or whether we don’t believe want that to happen. But what I do not and dealer responsible because we need those numbers and we want to do want to happen either is for hard-work- jobs in America. Has it come to this? something about unemployment. ing men and women of this country— Have we reached this point? In the past few weeks, we have heard many of them union men and women— Let me say to my friend from Idaho, much about the number of jobs that who are working in firearms produc- I don’t understand what he said about will be created this year. And we’ve tion in this country today for civilian trade associations. I turn to page 11 of also heard some backpedaling based on use and for military use, to lose their the bill, and it is all about trade asso- economic modeling, statistics and jobs because their company has simply ciations. As I read that, I can’t help rounding errors. In the end, they say

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.056 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1555 that the economy is going to grow by X in which they cite on page 98 a chart Let’s compare the number of jobs number by the end of this year, and we talking about growth and real GDP and that were created in the last recovery don’t have to worry about the unem- productivity over the long term, basi- and this one. The bottom line is that in ployed. cally said this year we were going to 1992 we started to see a recovery in The bottom line, however, is that the create 2.6 million jobs. That was a jobs. In April of that year the economy economy isn’t going to create enough great forecast. Many of my colleagues started to create about 150,000 jobs per jobs to put America back to work. And on the other side of the aisle said that month. But, even so, we kept the Fed- since this recession started in early that is an indication that the economy eral program going for 22 more months. 2001, millions of people have lost their is going to grow, and we don’t need to In February of 1993, we finally closed jobs through no fault of their own, and do unemployment benefit extensions. the jobs deficit, and yet, we continued millions are still out of work. After the People will find jobs. the program until 2.9 million new jobs recession began in March of 2001, this The three Cabinet secretaries—the had been created, above and beyond the country faced another blow: 9/11. In ad- Secretaries of Treasury, Commerce, jobs deficit. dition to the horrific personal losses and Labor—who visited Washington In the current recovery, we are sim- resulting from that tragedy, our na- State must have thought the picture ply not seeing that kind of growth. tional economy and my own State’s was so rosy that they didn’t need to Last month, just 112,000 jobs were cre- economy was gravely hit in a variety meet with unemployed workers who ated. And yet, everybody is ready to of sectors that caused huge job loss. wanted to share their plight. And yet, say that 112,000 jobs signals our great And here we are today, still with 2.3 when they were asked about the Presi- return. We need to take a lesson from million fewer jobs than in January dent’s economic numbers and the history: In the 1990s, when the economy 2001. And yet, some of my colleagues on President’s economic plan, they all started creating about 150,000 jobs, we the other side of the aisle would like to backed off of those numbers. They all continued the program for almost 2 say the economy is recovering and we said the economy is not going to grow more years. We certainly didn’t cut it don’t have to do anything about help- at that fast a rate. Those were just off as we did in December of 2003. ing unemployed workers. numbers. In April of 1992, that administration Part of our job at the Federal level is If they are just numbers and you was not heartless as to the plight of to use the Temporary Emergency Un- don’t really believe that is the growth Americans being out of work. That ad- rate, then let’s go back to the business employment Compensation program to ministration recognized that even we are charged with—helping out in help laid-off workers in times of eco- though the economy is starting to re- times of high unemployment with Fed- nomic decline. This program is funded cover, it hadn’t fully recovered. Under eral assistance. This program is paid by employer, and by extension em- that Republican administration, they for by employers and employees. Let’s ployee contributions. They are paying said let’s go ahead and keep the Fed- put back on the table the 13 weeks of into a Federal program that is sup- eral employment program going. So Federal assistance and, in high unem- posed to help in downturns of our econ- they extended it for another 22 months. ployment States, an additional 13 omy to keep people—with mortgage In February 1993, when we basically weeks in Federal assistance. payments, hospital payments, health had broke even for the jobs that had Let’s not make a mistake. There are been lost, the Federal unemployment insurance—going until they actually hundreds of thousands—in fact 760,000 have an opportunity for jobs in the fu- extension program was still extended people in America—who have ex- another year. ture. This has been a essential pro- hausted all their state benefits and The past recession provided good eco- gram. have no federal program to pick them nomic evidence that extending unem- At the State level, a laid-off worker up. And in addition to the 8.3 million ployment benefits at the Federal level can get 26 weeks of help. But, during people officially counted as unem- not only helped bridge the gap between recessions that’s often not enough to ployed, there are another 1.7 million the end of State benefits and finding a get back to work. So the Federal Gov- who are actually no longer counted as new job. ernment has said that in times of high in the ranks of the unemployed. If we It also provided economic stimulus. unemployment, we’re going to step in. count them, the national unemploy- For every dollar spent on unemploy- After a laid-off worker has exhausted ment rate jumps from 5.6 percent to 6.7 ment benefits, it generates $2 of stim- their state benefits, a Federal program percent. These people are out of work ulus to the economy. We found out in will kick in that provides an additional just the same as those who are count- the 1990s that was a good economic 13 weeks of help. In some instances ed, but yet they are not in the num- plan, and two administrations, a Re- where States have really been hard hit bers. Many are discouraged workers. publican administration, the first by high unemployment, such as my Many have exhausted their benefits. George Bush, and a Democratic admin- state, which had for a time over 7.5 per- Let’s take a look at the economic istration, Bill Clinton, found that this cent unemployment, there is an addi- policies of the past two administra- was great economic policy for our tional 13 weeks of help. But somehow tions. Let’s look at what the first Bush country. this body has decided, after much de- and the Clinton administration decided Yet today, the administration is sim- bate, that we were not going to con- to do when this country faced an eco- ply being heartless. Somehow, even tinue that program. nomic downturn in the early 1990s. though the President has backpedaled In fact, in December of last year we They decided that we should create a on his own economic plan for the year tried numerous attempts to pass unem- federal program for unemployment and said he doesn’t support the job ployment benefit extensions. We tried benefits to help people until they could growth projections—somehow even to get the other side of the aisle to get back to work. though we have created only a minus- agree that this was a necessary step. I have numbers of e-mails and letters cule number of jobs, 112,000 in January, We were rebuffed by people saying the from constituents in my State and the administration doesn’t want to economy is going to get better, the other parts of the country. These con- continue this program. economy is going to get better, so we stituents say that they have sent re- I find that amazing. What else I find don’t need to do this. sumes to hundreds of companies and amazing is that even though we have I found it amazing that people on the maybe only had two or three inter- $17 billion in the UI trust fund—$17 bil- other side of the aisle, when we re- views. When they go to those inter- lion that does not have to be found, turned in January, were still asserting views, they are competing with people that does not have to be taken from that in that debate: The economy is who are three and four times more another program; $17 billion that has going to get better. qualified for the job. These overly been paid for by employers and em- Now the President and his Cabinet, qualified people are willing to take ployees, and is, in fact, designed to who came to Washington State just that job because it is the only job that take care of employees during eco- this past week, are saying their origi- is out there. Thereby those individuals nomic downturns—we’re not going to nal predictions on the economy aren’t who are themselves qualified but not extend the program. going to be as rosy as they predicted. overqualified are left without employ- As the program has been designed, it The President’s own economic report, ment. says these people can be eligible for

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.059 S25PT1 S1556 CONGRESSIONAL RECORD — SENATE February 25, 2004 Federal temporary assistance for 13 The L.A. Times recently wrote: began studying for a graduate degree and weeks and, if they are in a very high More than 2 million jobs have been lost in started teaching part time at a Lake Tahoe unemployment State, an additional 13 the last three years. . . . Even in the best- community college for a meager wage. weeks. I want to point out that in the case scenario, Bush will end this term with a It’s been a fragmented, hand-to-mouth life, net job loss. That hasn’t happened to a presi- one that she sees mirrored by friends and 1990s, not only did they extend that colleagues who are waiting tables or deliv- program for 27 months, much longer dent since Herbert Hoover at the beginning of the Depression. ering packages. In the late ‘90s, the 35-year- than we did in the current program, old Gluskin says, ‘‘we had careers. We had the program was also a richer program. Mr. President, I ask unanimous con- trajectories. Now we have complicated lives. The program was richer in that you ac- sent to have these articles printed in We’re not unemployed, but we’re under- tually had twice as many weeks of ben- the RECORD. employed.’’ efits. There being no objection, the mate- The nation’s official jobless rate is 5.9%, a So the current program has fewer rial was ordered to be printed in the relatively benign level by historical stand- weeks of benefits, and it hasn’t been in RECORD, as follows: ards. But economists say that figure paints place for as long—it only lasted 22 [From the Star Tribune, Minneapolis, MN, only a partial—and artificially rosy—picture Feb. 10, 2004] of the labor market. months. To begin with, there are the 8.7 million un- JOBLESS; BENEFITS ARE RUNNING OUT I think people across America are employed, defined as those without a job who getting the message. I know they are To a casual reader, the government em- are actively looking for work. But lurking in Washington State. They were so dis- ployment report released on Friday shows an behind that group are 4.9 million part-time appointed when the Cabinet Secre- economic recovery finally taking hold. Pay- workers such as Gluskin who say they would taries showed up in town and said they rolls expanded for the fifth consecutive rather be working full time—the highest wanted to do something about the hard month, and the unemployment rate fell number in a decade. slightly to 5.6 percent. economic times, and yet refused to There are also the 1.5 million people who To Americans who are standing in the un- want a job but didn’t look for one in the last meet with laid-off workers. Then the employment line, however, the January data Secretaries Snow and Evans refused to month. Nearly a third of this group say they reveal a recovery that remains woefully in- stopped the search because they were too de- back the President’s jobs projections. adequate. If President Bush really cares pressed about the prospect of finding any- Laid-off workers in my state said: If about the nation’s unemployed, as he said thing. Officially termed ‘‘discouraged,’’ their you guys do not believe in the eco- Sunday, he will endorse congressional efforts number has surged 20% in a year. nomic numbers, we can tell you first- to enact a badly needed extension of federal Add these three groups together and the hand we do not believe in them because unemployment benefits. jobless total for the U.S. hits 9.7%, up from The January jobs report was encouraged in 9.4% a year ago. we have been on job interview after job the context of the current recovery, but it interview and have sent resumes and No wonder the Democratic Presidential was pathetic in the context of history. Since candidates have seized on jobs as a poten- the jobs are just not there. the labor market hit bottom last summer, As the Seattle P.I. wrote in an edi- tially powerful weapon. employers have been adding about 73,000 jobs Howard Dean criticized President Bush for torial, everything is not fine in the job per month. That compares with 216,000 jobs ‘‘the worst job creation record in over 60 market. They clearly point out that we per month during the economic expansion of years.’’ Richard Gephardt said that ‘‘I have have a responsibility, and the one the early 1990s, and much larger monthly three goals for my presidency: jobs, jobs, thing to do to alleviate the pain is to gains in recoveries before that. At this slug- jobs.’’ John Kerry said ‘‘the first thing’’ he’d extend Federal unemployment bene- gish pace, it will take the nation four years do as president would be to fight his ‘‘heart fits. I ask unanimous consent to print to recover the jobs it lost in nine months out’’ to bring back the jobs that have dis- during the recession 2001. There is simply no that editorial in the RECORD. appeared in recent years. modern precedent for a jobless recovery of EVERYTHING IS NOT FINE IN THE JOB MARKET Bush, meanwhile, is quick to seize credit this duration. where he can. When the unemployment rate Helping unemployed workers is the one The slow pace of hiring is taking a terrible for November fell one-tenth of a point, he thing the Bush administration could still do toll on those in the unemployment line. went out immediately to give a speech at a about the lousy jobs environment. Nearly one-fourth of the nation’s 8.3 million Home Depot in Maryland. Three-fourths of the way through his term, jobless workers have now been out of work President Bush is pretending that everything ‘‘More workers are going to work, over for six months or longer. As of December, 380,000 have joined the workforce in the last is fine for workers. The administration has nearly 400,000 workers are exhausting their shown no interest in extending federal emer- couple of months,’’ Bush said. ‘‘We’ve over- unemployment benefits every month, ac- come a lot.’’ gency unemployment assistance for workers cording to the Center on Budget and Policy whose benefits are expiring. A number of economists say it’s a mistake Priorities in Washington, D.C. to evaluate the job market solely by talking The country has lost 2.3 million jobs. The (A different Labor Department measure, recovery is pushing up CEOs’ pay, ironically, about the official unemployment rate. It’s a known as the household survey, has been blunt instrument for assessing a condition in part because they are helping stock prices showing much stronger job creation in re- by holding down hiring. And the layoffs con- that is growing ever more vague. cent months. But the department said Fri- ‘‘There’s certainly an arbitrariness to the tinue. day, as it has for years, that it considers the Boeing said Friday it might cut 50 workers official rate,’’ says Princeton University eco- household survey less accurate than the pay- in Everett. The sale of AT&T Wireless Serv- nomics professor Alan Krueger. ‘‘It irks me roll survey that is showing tepid growth. ices will spark thousands of layoffs. Yester- that it’s not put in proper perspective.’’ And even by the household survey, the cur- day, Sen. Maria Cantwell, D-Wash., visited On Jan. 9, when the rate for December is rent expansion is much slower than its pred- workers and managers of a Seattle ware- announced, both Republicans and Democrats house where the staff was laid off and the ecessors.) will assuredly again maneuver for advan- Bush says that in light of the large budget building put up for sale. tage—precisely because the number isn’t ex- As Cantwell notes, there are far more un- deficit, he wants to contain federal spending, pected to change much. employed workers than new jobs. For good and we sympathize. But the modest cost of ‘‘At this point, where we don’t know which reason, the White House has jettisoned its extending unemployment benefits would dis- way it’s going but it isn’t likely to be going own prediction of 2.6 million new jobs this appear as soon as the job market truly re- far, both sides will try to use it,’’ says Mi- year. covers, unlike the much larger tax cuts that chael Lewis-Beck, a political scientist at the The fury over outsourcing of jobs is much the president continues to propose. University of Iowa. overstated, but it is fed by the weak econ- Lawmakers dragged their feet on this ques- In every election since 1960, the party in omy. The export of some jobs underscores tion all last fall, arguing that a jobs recov- the White House lost when the unemploy- the need for helping unemployed workers ery was just around the corner. Last week a ment rate deteriorated during the first half through a transitional time until more jobs majority in the House finally recognized its of the year. If the rate improved, the party are created. The one way to alleviate the error and voted to extend benefits. The Sen- in the White House won. pain quickly is to extend federal unemploy- ate and the White House should concur. That’s not a coincidence, says Lewis-Beck, ment benefits. who has edited several volumes on how eco- [From the Los Angeles Times, Dec. 29, 2003] Ms. CANTWELL. Mr. President, the nomic conditions determine elections. ‘‘Peo- JOBLESS COUNT SKIPS MILLIONS Minneapolis Star Tribune wrote: ple see the President as the chief executive (By David Streitfeld) of the economy,’’ he says. ‘‘They punish him At this sluggish pace, it will take the na- if things are deteriorating and reward him if tion four years to recover the jobs it lost in San Francisco.—Lisa Gluskin has had a things are improving.’’ nine months during the recession of 2001. tough three years. She works almost as hard as she did during the dot-com boom, for By any normal standard, things should So there are people saying obviously about 20% of the income. have been improving on the employment it is going to take us a while to re- When Gluskin’s writing and editing busi- front long before this point. More than 2 mil- cover. ness cratered in 2001, she slashed her rates, lion jobs have been lost in the last three

VerDate jul 14 2003 02:38 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.061 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1557 years, a period that encompassed a brief, get food on the table in the absence of better able—was only 7.4 million, the lowest since nasty recession and a recovery that was ane- options. 1993. mic until recently. Even in the best-case sce- Take Steve Fahringer, who until recently ‘‘If this goes on too long, you’d have to nario, Bush will end this term with a net job was working for a Bay Area marketing agen- worry there’s something fundamentally loss. That hasn’t happened to a president cy that cut 20% of its employees and wrong,’’ Groshen says. Although the econ- since Herbert Hoover at the beginning of the trimmed the wages of the remainder by 20%. omy has picked up since March, ‘‘so far I Depression. Fahringer didn’t particularly like his job. haven’t seen anything that suggests job cre- Many economists are mystified about why Because the recession supposedly was his- ation is picking up.’’ a suddenly booming economy is producing so tory, he thought he could find a new posi- That bodes poorly for Ian Golder. His last few jobs. tion. The 34-year-old didn’t think it would be full-time job was with a start-up publication ‘‘We’re all sitting there and saying, ‘When easy, but he thought it possible. So he quit. that wrote about venture capital. are they going to return?’’’ says Richard B. ‘‘I left July 1,’’ he says. ‘‘I haven’t found a Two years ago, Golder was laid off. It was Freeman, director of the labor studies pro- new job yet.’’ the first time since he graduated from UC gram at the National Bureau of Economic It’s a common problem. The segment of the Berkeley 14 years earlier that he didn’t have Research. ‘‘It’s looking a little better, but labor force that has been jobless for more steady work. we don’t understand why it isn’t looking a than 15 weeks has risen nearly 150% since Golder looked for a while, gave up for a lot better. Why shouldn’t Bush be sitting 2000. The current level is the highest since while, then landed a contracting gig with no there saying, ‘Man, I’m sitting pretty. This the recession of the early 1990s. Nearly one- benefits proofreading for a chip maker. When that ran out, he worked 20 hours a month on is a great boom’?’’ quarter of the jobless have been unemployed One statistic proving particularly per- for longer than six months. a financial services newsletter. His wife, Heather, a recent graduate in plexing is the percentage of the adult popu- In Fahringer’s case, he spent some time ag- English from UC Davis, also was without a lation that is employed. this number rises gressively looking for a job, which made him job. They thought about selling their house during good times, as people are lured into part of the official July unemployment rate in Sacramento and moving, but prospects the workforce, and falls during recessions as of 6.2%. Then he stopped looking, which didn’t look any better anywhere else. To companies falter. meant that he was one small reason the rate make ends meet, they took in two boarders. True to from, the percentage of adult started going down. At the beginning of December, things Americans with jobs dropped from a high of Instead of unemployed, Fahringer was clas- seemed to improve a bit. Golder got a job in 64.8% in April 2000, just as the stock market sified as ‘‘discouraged.’’ A little more than the document-control department of a med- was cresting, to 62% in September—the low- 8% of the people who want a job in the Bay ical devices company. The department, he est level in a decade. If past recessions are Area are estimated by the Bureau of Labor was told used to have 20 full-time people. any guide, those 5 million people who found Statistics to be discouraged, slightly higher Now it has five, plus four temps. themselves jobless should have driven the than Los Angeles/Long Beach but lower than The job will last two months. After that, unemployment rate up to about 8%. the battered technology center of San Jose. who knows? Instead, the rate never went much above Discouraged workers have never been in- Optimists say things will be better then,’’ 6% cluded in unemployment rates, although Golder says. ‘‘But a full-time position with More than half of the additional people they came close the last time a commission benefits seems pretty remote.’’ who would have reported themselves as un- met to reform the system, a quarter of a cen- employed in a previous big recessionary pe- tury ago. ‘‘It was a very hot issue,’’ remem- Ms. CANTWELL. Mr. President, the riod . . . aren’t,’’ a puzzled UC Berkely econ- bers Glen Cain, a retired economist who was point is, this administration and the omist, Brad DeLong, wrote on his website. a commission member. He says the conserv- other side of the aisle need to look at ‘‘They’re reporting themselves as out of the atives on the panel, who felt that anyone economic history when we have faced labor force instead.’’ who really wanted a job should be out there similar downturns and discuss what is ‘‘Out of the labor force’’ means you’re not hustling no matter what, prevailed. the best way to alleviate this pain as working for even one hour a week and don’t Fahringer found an alternative way to we see our economy barely start to want to, either. It’s the traditional category earn a bit of money. He did some acrylic chug along. for students, married women with young paintings, which he sold for a total of $1,000. We have heard a lot about children, flush retirees and idle millionaires. He calls himself ‘‘a hobbyist,’’ which means A new way that people seem to be joining for a while he moved out of the labor force outsourcing in the last week or two. I this category is by getting themselves de- entirely. am sure we have not heard the last of clared disabled. This designation makes Now he’s a temp, assigned by his agency to it. There are a lot of people who are them eligible for government payments a nonprofit office. For the first time in six concerned that we may never see that while removing them from the unemploy- months, he’s working 40 hours a week. By job growth that was even initially pre- ment rolls. the government’s accounting, he has once dicted in the President’s economic re- From 1983 to 2000, economists David Autor again joined the ranks of the employed. But port of which it has now backed off. So and Mark Duggan wrote in a recent study, from the standpoint of his wallet, Fahringer the number of non-elderly adults receiving is worse off: He’s earning less money, with America has a very uncertain time government disability payment doubled from no paid holidays, no sick leave, no pension ahead, but Americans know they have 3.8 million to 7.7 million. plan, no health insurance, no future. a program at the Federal level to The scholars present a case that the sharp The Economic Policy Institute, a liberal- which they are being denied access. increase isn’t because the workplace sud- leaning Washington think tank, says What are the consequences? My col- denly became more dangerous. Instead, it Fahringer’s situation is in many ways typ- leagues need to read their e-mails. has been prompted by liberalized screening ical. The industries that were expanding in They need to read letters from their policies, which make it possible to claim dis- the late ’90s, including computer and profes- constituents. I read mine. When you abled status for, say, several small impair- sional services, paid well. ments as opposed to one big injury. Govern- Those industries are in retreat. So is man- know that money is there to help and ment examinations also have been ufacturing, a traditional source of high assist them, when you know an eco- downplayed in favor of the disabled’s own wages. On the rise, meanwhile, are lower- nomic plan and responsibility for our medical records and the pain he or she paying service jobs. fiscal policy is something we should be claims to be experiencing. During the boom, it was easy to trade up. concerned with every day, it just At the same time, benefits have been Now it’s just as easy to trade down. breaks your heart to understand the sweetened. As a result, millions of individ- Fahringer’s solution: Opt out. plight some of these people are going ‘‘I’m thinking of going back to school,’’ he uals who lost jobs now have an attractive— through. and permanent—alternative to searching for says. ‘‘I’d take out a loan.’’ That would put work. him out of the labor force again. One laid-off worker from Camano Is- Autor and Duggan concluded that if dis- In some eyes, a nation of burger flippers, land said he cashed out every dime of ability payments weren’t so appealing, many temps and Wal-Mart clerks isn’t the worse his 401(k) savings plan with significant more people would be unemployed, boosting scenario for the economy. The worse is that penalty. He doesn’t know how he is the jobless rate two-thirds of a point. companies continue to eliminate jobs faster going to make the mortgage payments, Another way in which people forgo an ap- than they create them, setting up a game of he is at such a desperate point. He is pearance on the unemployment rolls is if musical chairs for the labor force. trying to figure out any way he can they decide to go into business for them- That prospect alarms Erica Groshen, an just to keep the lights on and keep food selves. There are 9.6 million people who say economist with the Federal Reserve Bank of they are self-employed full time, a number New York. ‘‘If you plot job losses versus on the table. that rose 118,000 last month. Without the re- gains on a chart, it’s shocking,’’ she says. Another constituent wrote to me cent increase in self-employed, the jobless Losses are running at about the same rate from Bothell, WA: number would look much worse. they were in 1997 and 1998, two good years for I had to resort to selling my 20-year-old Many others may be working for them- the economy. But job creation in the first naval sword for grocery money. As a naval selves part time, temporarily, as a way to quarter of 2003—the most recent period avail- veteran, I can tell you that hurt a lot to do.

VerDate jul 14 2003 02:38 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\A25FE6.007 S25PT1 S1558 CONGRESSIONAL RECORD — SENATE February 25, 2004 A constituent from Steilacoom, WA, has strong support from both sides of efit all Americans. The industry should who has been unemployed and his wife the aisle with more than 50 cosponsors not be penalized for legally producing worked at $17 an hour for a phone com- on the original bill, S. 659. I am proud or selling a product that functions as pany and she was laid off, too, writes to be an original cosponsor of the bill. designed and intended, but that is ex- that they had to borrow from friends I thank my dear friend and colleague actly what certain groups are trying to just to keep their kids in the house and from Idaho, Senator LARRY CRAIG, for do—asking the courts to step in and make their house payment. his leadership. He has done yeoman’s micromanage the firearms industry Washingtonians are having a very work on this bill in the drafting, intro- when the Congress and most State leg- hard time. I bet many Americans duction, and shepherding of this bill as islatures have refused to do so. across this country are having a hard it passes on the Senate floor. Let me now list some of the demands time. That is because we are not living The legislation in question will cor- that have been made in these lawsuits up to our responsibility to pass this rect a significant injustice that threat- so we can get a flavor and a picture of temporary unemployment benefit ex- ens the viability of a lawful United just how incredible these lawsuits are. tension. We had this debate in Decem- States industry, the firearms industry. Some would require a one-gun-a-month ber of 2003, and a lot of rankling about An increasing number of lawsuits are purchase restriction not required by a it, and we came back in January and being filed against the firearms indus- State law. That is a one-gun-a-month ultimately did the right thing. try seeking damages for wrongs com- restriction. Other of these suits would In December of this year, when the mitted by not them but by third per- require firearm manufacturers and dis- program expired again, we came back sons who misuse the industry’s prod- tributors to participate in a court-or- and everybody wanted to sing how the ucts. dered study of lawful demand for fire- economy was getting better. Now the These lawsuits seek to impose liabil- arms and, get this, cease sales in excess administration will not stand by its ity on lawful businesses for the actions of lawful demand. own numbers of whether the economy of people the industry has absolutely Another request is to require a prohi- is really getting better or not. no control over. When one stops to bition on sales to dealers who do not The House of Representatives, albeit think about it, it is really outrageous. stock at least $250,000 in inventory. a difficult task, actually got an amend- Businesses that comply with all appli- And here is still another: require sys- ment on a different bill and actually cable Federal and State laws and that tematic monitoring of dealers’ prac- passed an extension of unemployment produce a product fit for an intended tices by manufacturers and distribu- benefits. They had the votes to, in a bi- lawful purpose, including elk and duck tors. partisan way, pass the unemployment hunting, target shooting and personal These are just a few of the sweeping benefit extension, but we have not had protection, should not be subject to demands made in the lawsuits the Pro- the courage to do so. frivolous lawsuits that have only one tection of Lawful Commerce in Arms My colleagues on the other side of goal; that is, to put them out of busi- Act seeks to stop. As my colleagues the aisle need to stand up and say that ness. It is an outrage. can tell, these suits are asking courts unemployment benefits are a priority Montanans particularly are proud of to step well outside their jurisdiction and that they are a good way to deal their independence and their outdoor and legislate regulation of the firearms with this economic situation, and that heritage. We are an outdoor people. industry. They also have nothing to do while we have curtailed this program People in our State, as in the State of with holding accountable those who ac- at a much shorter time period when we the occupant of the Chair, almost tually misuse firearms or commit have not had positive job growth—we honor and cherish the outdoors. We crimes with firearms. are still in the negative numbers—this spend so much of our time outdoors. has been premature and that the smart Almost every Montanan regards him- Most courts have dismissed such law- thing to do now is, as the economy is self or herself as an outdoorsperson. suits. Some courts have expressed sen- barely starting to respond, the most Hunting, fishing, hiking, even one’s timents similar to those of a New York prudent thing to do to stimulate the job, whether it is raising cattle, grow- appellate court judge who stated: economy is not to take more money ing wheat, grain, the mining industry, The plain fact is that courts are the least out of it. That is exactly what we are forest products—we are outdoors peo- suited, least equipped and thus the least ap- doing. We are taking more money out ple. We cherish our right to hunt. We propriate branch of government to regulate and micromanage the manufacturing, mar- when we do not help provide the stim- cherish our right to fish and enjoy the keting, distribution and sale of handguns. ulus that unemployment benefits pro- outdoors. Passing this bill will allow us vide. to protect that right by ensuring the However, the time, expense, and ef- So I think this is the best investment firearms industry stays in business. fort that goes into defending those nui- we could be making. My colleagues Gun owners and sportsmen are an im- sance suits is a significant drain on the need to realize it is heartless to leave portant part of our Nation’s economy. firearms industry costing jobs and mil- these Americans out in the cold with- Each year they spend nearly $21 billion lions of dollars, increasing business and out either a paycheck or an unemploy- in our national economy. This in turn operating costs and threatening to put ment check. generates more than 366,000 jobs. Those a good number of dealers and manufac- In the 1990s recession, even when jobs pay more than $8.8 billion in wages turers out of business. That is why this there had been the start of job growth, and salaries. That is no small item, bill is so necessary. the program was extended for 22 particularly these days when we are Let me be clear about a couple of months. And even when we had recov- trying to get as many jobs in our coun- points, though. This bill will not bar ered all the jobs that were lost and the try, particularly good-paying jobs. The legitimate suits against the firearms economy had started to positive industry also provides about $1.2 bil- industry. It preserves the right of growth, this program was extended an- lion in State tax revenues. Americans to have their day in court. other year. So we are being very short- In addition, excise taxes imposed on For example, this bill will not require sighted. While we have lots of legisla- firearms in the Federal Aid to Wildlife dismissal of a lawsuit if a member of tion to discuss, various issues about li- Restoration Act, otherwise known as the industry breaks the law; if a mem- ability, we are saddling the American the Pittman-Robertson Act, generate ber of the industry acts negligently in public with the biggest liability yet, revenues for State fish and wildlife supplying a firearm to a person they and that is a bad economy and no help conservation efforts, and also hunter should have known is likely to misuse on unemployment. safety programs. For example, the that firearm. In addition, it does not I yield the floor. Pittman-Robertson Act generated require dismissal of a lawsuit if a mem- The PRESIDING OFFICER. The Sen- more than $150 million in revenue in ber of the industry supplies a firearm ator from Montana. the year 2002 alone. to someone they had reason to know Mr. BAUCUS. Mr. President, I have In short, the U.S. firearms industry was barred by Federal law from owning today asked my colleagues to support serves America’s gun owners and a firearm or designed a defective fire- the Protection of Lawful Commerce in sportsmen well. It provides good-pay- arm. So there are safeguards in this Arms Act. This important legislation ing jobs. It provides revenues that ben- bill.

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.063 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1559 This bill is only intended to protect 11 pages, a relatively small bill—and Those are really the key points here law-abiding members of the firearm in- what it does or does not do. that we do not in any way exempt. dustry from nuisance suits that have S. 1805 has basically two substantive What we are doing in S. 1805 is very no basis in current law, and again are provisions. First, section 3(a) states simple. We are trying to reinforce cen- only intended to regulate the industry, that: turies of legal precedent, based on indi- harass the industry, or put it out of A qualified civil liability action may not vidual responsibilities, not responsible business, none of which are appropriate be brought in a Federal or State court. for actions of third parties. In other purposes of a lawsuit. That is what this A qualified action may not be words, once again the trial bar is try- legislation is intended to deal with. brought. ing to suggest that a criminal act is We can all agree when a firearm is Second, section 3(b) orders the imme- the responsibility of the person who used in a criminal or careless manner diate dismissal of a qualified civil li- manufactured the product that the that causes serious injury, such as the ability action pending on the date of criminal may use in that act. We have loss of life, this is a terrible tragedy. enactment of S. 1805. The key to S. never allowed that to stand in our Those responsible for such tragedies 1805, therefore, is the definition of courts, and now we are trying to assure should be held accountable, clearly, ‘‘qualified civil liability action.’’ That that a very small industry in this and held accountable to the fullest ex- is what most of our colleagues, I hope, country can be protected from the tent of the law in both civil and crimi- would focus on, even though the issue kinds of frivolous lawsuits filed that nal actions. spirals around the use of a gun and are draining them of their very liveli- This includes the firearms industry, that brings about substantial heated hood. obviously, when or if one of its mem- debate and political decisions. Earlier this afternoon I talked about bers breaks the law or gives a firearm Key in S. 1805, again, is the definition the hundreds of jobs that have been to a criminal or other person they of a civil liability action which is ad- lost. Some scoffed and said, ‘‘This is a knew would use the firearm to hurt, dressed in the definition section, then, jobs bill?’’ kill, or threaten another person. in section 4(5). A qualified civil liabil- You bet it is a jobs bill. If you de- The Protection of Lawful Commerce ity action is defined as a lawsuit: stroy that industry, thousands of high- in Arms Act would do nothing to . . . brought by any person against a man- paying jobs will be lost across the change this or shield the firearms in- ufacturer or seller of a qualified product, or United States in an industry that is dustry from liability or criminal or a trade association, for damages resulting legal, that is law abiding, that one other wrongdoing. At the same time, it from the criminal or unlawful misuse of a might argue is even enshrined in the is not fair and it is not right to hold qualified product by the person or a third Constitution under the second amend- party. . . . lawful members of the industry, who ment. That is why we are here today. Is it important? You bet it is impor- produce a legal product, accountable Subsection (5), the definition, then tant. Is it a part of what our Senate for the independent actions of third excludes five categories of lawsuits ought to be debating? Absolutely. parties who use a firearm in the man- from coverage under S. 1805: First: If we are able to do this, we establish ner the industry never intended. extremely important precedent that This is a very simple bill. It has a (i) an action brought against a transferor convicted under section 924(h) of title 18, other manufacturers of law-abiding simple purpose. It is also critically im- United States Code, or a comparable or iden- products will look at, and should look portant to a very vital industry and I tical State felony law, by a party directly at. Why should the trial bar be allowed ask my colleagues to give it their full harmed by the conduct of which the trans- to suggest that the maker of a Chev- support. feree is so convicted. rolet, Ford, Dodge, or Toyota pickup I yield the floor, and I suggest the ab- In other words, we don’t exempt that. used by a drunk driver that ended up sence of a quorum. We exclude these categories from that killing someone be responsible for it? The PRESIDING OFFICER. The definition so you can still go to court, Because they manufactured it? Since clerk will call the roll. you can still gain redress from that. when is this country going to exempt The assistant legislative clerk pro- The second one is: the actions of the individual and say, ceeded to call the roll. (ii) an action brought against a seller for Oh, no, it really wasn’t his fault; it was Mr. CRAIG. Mr. President, I ask negligent entrustment or negligence per se. the fault of the vehicle. It was the fault unanimous consent that the order for Negligent entrustment is defined: of an inanimate object known as a gun. the quorum call be rescinded. . . . the supplying of a qualified product by That is the issue today and it really The PRESIDING OFFICER. Without a seller for use by another person when the is fundamental. You hear a great many objection, it is so ordered. seller knows, or should know, the person to arguments. One of them is that we are Mr. CRAIG. Mr. President, again, I whom the product supplied is likely to, or locking the courthouse door. No, all remind our colleagues that we are in a does, use the product in a manner involving those principles I talked about are ex- postcloture environment. What does unreasonable risk of physical injury to the person or others. empt and can be tried and can be ar- that mean? It means we could actually gued before the courts. Even in S. 1805, In other words, if the seller knows debate the broad issue of the bill for somebody who by definition brings a upwards of 30 hours before we actually that this is going to be used for crimi- junk lawsuit gets to argue the case be- get to the bill, even though 75 of us nal intent or for misuse, then of course fore the judge. They get through the have said let’s move on, let’s get to that provision is exempt from the pro- courthouse door. The judge then lis- this legislation, debate it, offer amend- tection under 1806. tens, applies the law, and makes a de- Third: ments, and bring it to final passage. termination whether this is a legiti- My colleague from Montana is leav- (iii) an action in which a manufacturer or mate case that should go forward or it ing. I thank him for his statement of seller of a qualified product [knowingly and willfully] violated a State or Federal statute was an illegitimate case. the work he has done in behalf of gun Will this bill affect several high pro- owners and manufacturers and law- applicable to the sale or marketing of the product, and the violation was a proximate file cases such as the lawsuit against a abiding gun dealers. I thank him for cause of the harm for which the relief is gun dealer in Tacoma, WA, from whose being an original cosponsor and work- sought. . . . store the DC snipers, John Muhammad ing with me to get S. 1805 to the floor. Again, the courthouse door is open to and Lee Malvo, got their rifle? Does it I thought what I might do for a few that. exempt that dealer if he acted unlaw- moments, while we are waiting for (iv) an action for breach of contract or fully? We don’t know that yet. We leadership on both sides of the aisle to warranty in connection with the purchase of know that BATF has investigated it see if we can’t find an agreement on the product. and jerked his firearm license and the how to proceed to this legislation, is to That is available. store is now closed. We are told that deal with some finer points that are in- (v) an action for physical injuries or prop- BATF has asked the Justice Depart- volved in the legislation. My guess is, erty damage resulting directly from a defect ment to file criminal charges against over the course of this week and prob- in design or manufacture of the product, him. ably the next week, you are going to when used as intended or in a manner that is But we do know one thing. We do hear a great deal said about the bill— reasonably foreseeable. know that Lee Malvo has admitted to

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.066 S25PT1 S1560 CONGRESSIONAL RECORD — SENATE February 25, 2004 stealing the gun from that dealer. can sell from those shows. You can some point successful, my guess is this Therefore, there is a principle in tort demonstrate your product. You can sell relatively small industry in our coun- law that says that a manufacturer is all kinds of things with no prohibition. try will not be here. What happens not liable if the product used, being In Idaho, the only prohibition, if you when we no longer produce high-qual- his, was stolen before it was used. That sell more than five a year, is you have ity firearms in this country for our we do know. And now we have an ad- to get a license to be an auto dealer. military or for our police? Do we rely mission by the person who pulled the What we say in gun shows is if you are on China or Yugoslavia or Hungary or trigger that the Bushman rifle used in a licensed gun dealer at a show, then some other foreign country to produce those tragic incidents here that kept you must comply with all laws during the firearms our men and women in this city rivetted for a tremendous that show in the sale of a firearm. But Iraq use to defend themselves and to amount of time and took numerous if you are an individual who sells very enforce the law? Do we put them at lives was a stolen weapon. few firearms but you might sell one to risk? Do we say to our good law en- Having said all of that, the case is a friend or someone else on occasion, forcement officers, You are going to yet to be investigated. The facts are and you sell at a gun show, or you met have a foreign firearm on your hip and yet to be truly known. Allegedly, guns a friend at a gun show and you tell him it will not be produced by a legitimate went missing. Allegedly, they were not about a gun you have and the trans- company in this country as a part of reported. action occurs, you don’t have to com- our national protection and our free- If all of that is true, then the owner ply with a background check; You are doms and rights? of this particular gun shop in Tacoma, not a licensed dealer. That is ultimately what could hap- WA could well be liable and could well Someone would suggest that is a pen because already we have seen these come under the criminal laws of today, loophole. I don’t see that as a loophole industries go out of business because of and S. 1805 would do nothing about because outside of gun shows it is not the risk of doing business and the li- considered one—only if it is inside. that and shouldn’t do anything about ability involved based on these types of What this is all about is establishing that. lawsuits we are now trying to shape a Federal regulation to control gun Once again, as I have already said nu- and limit. That is the essence of S. merous times today—and I am sure I shows. This will be a new entity of Fed- eral control over something that is 1805. will repeat it over the course of a good I hope we can soon move to the bill clearly a free market process. Do we number of days—this is a very narrow and begin debating it in its entirety, want Federal regulations over the con- approach. It is an important one. trol of auto shows? Do we want Federal and certainly any amendments that Senator DASCHLE, the minority lead- regulations in control over new-cloth- would then come forward, debate those, er, and I joined in his amendment em- get an up-or-down vote and move to- bodied in S. 1805 to ensure that we re- ing shows? No. That is the marketplace at work. But if there are Federal laws ward final passage. fine it even more to make it very clear With that, I yield the floor and sug- that control these different products exactly what and who might be exempt gest the absence of a quorum. and/or sale, then they comply. They and for what reason. We think we have The PRESIDING OFFICER. The comply inside the show or outside the so effectively narrowed it that it has clerk will call the roll. met the broad acceptance of our col- show. That is standard today. The assistant legislative clerk pro- What our colleagues are trying to do leagues in the Senate. ceeded to call the roll. in suggesting there is a loophole, which I hope the cloture vote today is re- Mr. REED. I ask unanimous consent I believe I have suggested by dem- flective of some of that acceptance as the call of the quorum be rescinded. onstration of facts does not exist, is to we work and debate through this issue. The PRESIDING OFFICER. Without control the gun show, and to suggest if I hope leadership on both sides can get objection, it is so ordered. you are an individual and you make a Mr. REED. Mr. President, this legis- us to an agreement so we might pro- sale at a gun show, you then must do lation before the Senate has been de- ceed and get on the bill and deal with background checks and all other due scribed as necessary for the gun indus- some of the amendments at hand. I diligence you would not do if you were try. It is nothing at all like that. There hope we can defeat them. I would like outside the gun show, speaking neigh- is no crisis with respect to lawsuits a clean bill. The administration would bor to neighbor, friend to friend, and aimed against the gun industry. like a clean bill. There is ample time were not viewed as a licensed dealer, or This legislation, though, poses a very to debate other issues. There is ample not a gun dealer in any way. time to debate extension of the assault That is the reality of what we are serious risk to the rights of an indi- ban. I strongly oppose that. That was talking about. Those are some of the vidual citizen who is a victim of gun vi- legislation I called a political placebo amendments we will have which we olence to go to a court of law in the at a time when everybody wanted to will be dealing with on the floor. I hope United States and to simply ask on the try to do something, even though they as we deal with those, we might deal facts whether the conduct of the indi- knew it was impossible to control the with others such as concealed carry. vidual gun dealer and the manufac- criminal element in this country un- We might look at the gun ban of Wash- turer represents the standard of care less you got tough on crime. So we ington, DC, where law-abiding citizens that is expected of every individual and passed that legislation. cannot legitimately own firearms, and corporation in this country. That is History shows the assault weapon a variety of other issues. very simply what we think is inherent ban did little to no good—except it did The President asked—and I would in our rights as citizens. This law will one thing. It kept law-abiding citizens like to honor that because I believe strike at those rights on behalf of a from buying certain types of firearms strongly in it, too—that we produce a powerful and influential industry, in even though our second amendment clean bill just exactly like the House this case the gun industry. would suggest they have the right to did on a better than 2-to-1 margin—285 There has been some suggestion we own them. to 140—that we produce a clean bill and are trying to protect the courts from That is why I hope the assault weap- get it to the President’s desk; wipe out third party lawsuits when, in fact, the on ban as it expires can be left to its these frivolous lawsuits but still allow reality is these actions are based on expiration. I hope we can defeat that. law-abiding citizens who might be in- the actions of the manufacturers and The other issue, the gun show loop- jured by illegal action of a gun dealer the dealers, not the actions of someone hole: Is there a loophole in gun shows? or illegal action of a gun manufacturer with a gun. This is based upon the Let me set the stage for that. I would their day in court without the kind of standard of care of the manufacturer like to compare a gun show and an frivolous and/or junk lawsuits—the and the dealer, not what an individual auto show. If you are a licensed car kind that are costing the industry mil- may or may not have done with a fire- dealer or a licensed manufacturer of lions upon millions of dollars right now arm. These are not third party law- automobiles—I don’t know that you and slowly but surely diminishing suits. These are lawsuits brought by have to be licensed to manufacture them. victims, Americans who have suffered automobiles—then you can put all Lastly, if we are not successful and if themselves personally or suffered kinds of auto shows together, and you the trial bar is at some day and at through the death or injury of their

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.068 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1561 family members. They are going to There is also a suggestion in this leg- Again, the suggestion that this is a court and they are simply saying these islation that there is a crisis because of situation that is required because we manufacturers or these gun dealers these suits that are driving the gun have to protect the whole industry have violated their duty to be reason- manufacturers out of business. That is from these suits that paint everyone able, their duty to be prudent, the duty not what the gun manufacturers are the same way disregards the nature of of every individual who lives in an or- telling their shareholders. That is not our tort laws. You have to allege spe- ganized society to behave in a way that what they are telling the Securities cific facts against a specific individual does not unnecessarily bring harm to and Exchange Commission under the or personality or corporation—their ac- others. That is the essence of our law. penalty of perjury. This is an excerpt tions. This is based upon their conduct, This legislation turns all of that on from the April 30, 2001, report of Smith not some type of blanket attack on the its head and says for a very special & Wesson: gun industry. But if this law passes, we will limit class, the gun lobby, the rules of the In the opinion of management, after con- game do not apply. And if there is a sultation with special counsel, it is not prob- the rights of American citizens. We citizen who seeks redress, then do not able and it is unlikely that the outcome of will disrupt and overturn our system of go to the courts of the United States. these claims will have a material adverse ef- tort law, which rests upon State action They tried to make the point that fect on the result of operations or the finan- as well as Federal action. This will pre- this does not close the door on the cial condition of the company as manage- empt causes of action that are entirely courthouses of America. No, this bill ment believes it has provided adequate re- recognized and permissible in many goes much further. It takes individuals serve. State courts throughout the country. who already have cases in courts and Under the penalty of perjury, the in- We will be disregarding the States, throws them out the door. Page 5 of the dustry is telling the SEC and the their legal systems, their knowledge of bill: shareholders, do not worry; these are local conditions. That is another cas- DISMISSAL OF PENDING ACTIONS.—a not material claims. This is nothing ualty of this legislation if it passes. qualified civil liability action that is pend- that is going to put us out of business. But this, ultimately, is not just ing on the date of enactment of this Act This is nothing that is going to bank- about the niceties of tort law and fed- shall be immediately dismissed by the court rupt us. Buy our stock. We are a good eralism and the financial impact on in- in which the action was brought. deal. dustries. This is about real people. Not shall be considered in light of But here people seem to be sug- I had occasion to meet one of these this legislation and the judge may gesting that they are on the verge of individuals when I met Denise John- make a determination that the suit collapse because these lawsuits are cre- son. Denise was the wife of the late can go forward, immediately dismissed. ating so much liability for the compa- Conrad Johnson. Conrad was a bus- That is not just shutting the court nies that they cannot bear it. I tend to driver and was the final victim of the door; that is evicting the plaintiffs believe their own statements in their Washington area snipers. The snipers’ from the court, through the door. That SEC filings. As a result, this is not a Bushmaster assault rifle was one of is just one aspect of the legislation. crisis with respect to the gun industry more than 230 weapons that dis- There is a discussion, too, about ex- in the United States. This is an indus- appeared from Bull’s Eye Shooter Sup- emptions, talk about knowing that if a try that is extremely well-heeled and ply gun store in Washington State. gun dealer or manufacturer knowingly Now, at a minimum, the gun store’s does something, of course, they might very zealous in protecting their own rights and interests. very careless oversight of firearms be liable. That is a criminal element raises obvious questions of negligence because in our criminal law we do not In 1999, the National Shooting Sports Foundation, an industry group, and and deserves to be explored by the civil choose to punish people who unwit- courts. The actions which the gun tingly or unknowingly do something. others created the Hunting and Shoot- ing Sports Heritage Fund. By all ac- manufacturer took in placing those There has to be, in most cases, some weapons in the hands of Bulls Eye also intent, some knowledge. Otherwise, the counts, this fund has raised as much as $100 million. They are engaged in lob- are appropriate for scrutiny in the criminal law is absolutely arbitrary. It courts. Yet Mrs. Johnson’s case would captures people simply for making a bying activities. They are engaged in promoting this legislation. They are be thrown out by S. 1805. mistake. That is the criminal side. Now, consider also the case of David also engaged in ensuring that their in- What we are talking about here is Lemongello and Ken McGuire. These ternal documents are protected from civil jurisprudence, the ability of an in- are two young police officers from New discovery by lodging them in a Cali- dividual to go to court to get damages Jersey, the city of Orange. On January fornia attorney’s office. They are for harm against that person. That is 12, 2001, they responded to a call, as po- not a criminal case; that is a civil case. guarding, in a secretive way, their ac- lice officers do every day throughout That is not enforcing the criminal laws tivities. This is not the case of a poor our country. Every day they risk their of the Nation which rest upon knowl- victim of a sniper or an aberrant gun- lives. What they encountered in a edge and intent; that is seeking redress man who does not have $100 million, backyard was a gunman armed with a based upon the standard of conduct, who does not have a large organization. weapon. They were both grievously the obligation to care, to exercise an They have one thing: Their right to go wounded. appropriate degree of care. into court, as every American citizen It turns out that this individual went The opponents of this bill are bring- can do, and make a simple claim. If into a store in West Virginia with a ing those two issues together, con- they have been negligent, I have been straw purchaser—a woman without a fusing and mixing them up. But there harmed, they must compensate me for criminal record—who purchased 12 is no confusion about this bill. It takes my damages. This bill strikes that. It guns at one time—he was a felon—and away the civil rights of an individual tears it out of our law. then took those guns and went off and to go to court and a judge and jury to Now, this is a situation where there became involved in these crimes, be- decide whether the individual, the de- is no financial threat of a great mag- came involved in the disposition of fendant, has harmed them through neg- nitude to the industry. In fact, some of these weapons. ligence, through their inability to ac- these suits do not even talk about This individual seller in West Vir- tually conform to a recognized stand- monetary damages. They are asking ginia failed to follow the guidelines ard of care. It is an extraordinary as- for injunctive relief. I think it is inter- that even the trade association, the sault on basic legal rights. esting that in the other body they National Shooting Sports Foundation, I find it amazing that at this time struck out the ability to get even in- has. So here is the seller, who is not at when there are so many problems fac- junctive relief to change the practices all averse to selling 12 firearms, in ing this country, we are looking at leg- of these companies. So this is not cash, to an individual, who walks in, islation that is not just so overwhelm- about a financial crisis. This is simply who refuses to buy them himself but ingly slanted to a particular special in- about providing remarkable, unprece- has a younger person, a woman in this terest but one that disregards these dented protections for one industry at case, make the purchase in name be- basic rights that we all take for grant- the expense of the average person on cause of background checks, who dis- ed. the street. regards the guidelines of the industry,

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.071 S25PT1 S1562 CONGRESSIONAL RECORD — SENATE February 25, 2004 and yet this legislation would say that no, hire anybody you want because you other dealer, you are OK, because the those two police officers, who suffered will have no civil liability, none what- rules of negligence don’t apply. grievously, cannot seek to be com- soever. This is something that confounds pensated by that dealer. It defies com- Now, this company had rudimentary common sense—forget the niceties of mon sense as well as our legal tradi- and ineffective controls for these weap- corporate law, of consumer protection tion. ons. They had no metal detectors, secu- law, of the tort system. Now, the manufacturer of those guns, rity mirrors, none of these things. Is Most people believe that if you are in Sturm, Ruger is a member of the that something the citizens of Worces- the business of manufacturing and sell- Shooting Sports Federation. I would ter, the citizens of Massachusetts, the ing weapons, you have a very high assume they take great pride in their citizens of America want? standard of care, higher perhaps than advertisements and say: Look at the That is common sense. These compa- other industries, because you are deal- guidelines we have. Our sales people nies have to protect these weapons. ing with a weapon that has the poten- have to be reasonable. They have to ex- They have an arsenal. They manufac- tial to kill people, much more obvi- ercise great scrutiny, good judgment, ture weapons. ously and explicitly than perhaps any et cetera. Well, they do not really re- Apparently, that was not the case. It other product manufactured. quire that these guidelines be followed, turns out the guns were taken from the What are we telling the industry? even though their organization promul- factory by felons they hired without Forget that high standard of care. Not gated them. conducting background checks. only can you have a low standard of Now, this case is in the courts of The gun used to kill Danny Guzman care, you can have no standard of care, West Virginia. Judge Irene Berger of was one of several stolen by Kahr Arms because you can do the most out- Kanawha County, WV, looked at the employees. This is not just one bad rageous things in the world and no one case, looked at the law of West Vir- actor. And maybe that is the defense: can sue you. There might be some ginia, looked at the specific allegations We are really pretty good. We just criminal liability, but then again, against the dealers, and said this case made one mistake. And they were sto- there might not. But the people you should go forward, there are no len before the serial numbers were have harmed through your negligence grounds for summary dismissal. Yet etched into the weapons. They could will remain harmed and uncompen- this legislation, if passed, would sum- not be traced. What kind of company is sated. Don’t worry. marily dismiss that case. It would fall, this? Most industries, manufacturers, are I think, squarely under section 3(b): But what we are telling them, if we governed by the Consumer Product A qualified civil liability action that is pass this legislation, is go ahead, it is Safety Commission, which regulates pending on the date of enactment of this Act fine, no liability for that, do that every the safety of nearly 15,000 consumer shall be immediately dismissed. . . . day, just one of those things. products used in and around the home. Judge Berger will not have a chance These guns were taken and resold to Guns are not regulated by the Con- to evaluate whether this legislation criminals in exchange for money and sumer Product Safety Commission be- and the exemptions comply, not in any drugs. Again, common sense suggests cause when it was created in 1972, the real sense, because the presumption, of there has to be a civil right to go in gun lobby pressured Congress to spe- course, is that all these suits would be and challenge the negligence of this cifically exempt guns and ammunition barred. There are exceptions which she company. The loaded gun that killed from its jurisdiction. So there is no may consider, but, again, those excep- Mr. Guzman was found by a 4-year-old regulation by the Consumer Product tions are so narrowly constructed that behind an apartment building near the Safety Commission. they provide little relief, no practical scene of the shooting, so the gun was Now there is no civil liability. What- relief. apparently tossed away and a 4-year- ever standard of care exists in this in- Now, there is not just one case. There old found it. Mercifully, the child was dustry is going to further deteriorate. are multiple cases but not the thou- not injured. We are causing problems; we are not sands that the industry would lead you This company could have done a solving problems with this legislation. to believe they would be overwhelmed score of things to prevent the death of There is another aspect, too. It is not by—but a few cases, inconsequential in Danny Guzman: Screen their employ- just the criminal on the street who monetary effect for the industry, as ees for felony convictions, screen their comes into control of a handgun, be it they stated, but of immense con- employees for drugs, install safety through the poor inventory controls of sequences to the individual who has cameras. What we are telling them, if a Bull’s Eye Shooters Company or suffered financially, emotionally, per- we pass this legislation, is you don’t through the lack of any apparent secu- sonally, and to that individual’s fam- have to do any of those things, because rity procedures of the Kahr Arms Com- ily. you can do anything you want and you pany. There were 9,485 people killed This is another case. This is Guzman will never be liable in a court of law in and another 127,000 wounded in unin- v. Kahr Arms, in Worcester, MA. Twen- the United States. tentional shootings between 1993 and ty-six-year-old Danny Guzman was fa- Will we tell that to the automobile 2001. In about an 8-year period, 127,000 tally wounded with a 9 mm gun. It was manufacturers? Will we tell that to people were unintentionally wounded stolen from the gun manufacturer’s other industries? Absolutely not. It de- by weapons; the firearm was defective plant by a drug addicted employee who fies and insults common sense. But we or the design was inappropriate and it had a criminal record. are trying to do that today. contributed to their injury. Don’t we Stop and ask yourself: Does a gun There is another suggestion that you want to at least ensure in the design of manufacturer have a responsibility to are trying to punish a whole industry weapons that there is a higher stand- the community to ensure that its em- because of a few bad apples. Like any ard of care? ployees who have access to firearms industry, there are some scrupulous For example, there is a case in Cali- are not former felons or somehow at dealers, and we hope it is the majority. fornia of a 15-year-old who was unin- odds with the law or who is not cur- In fact, it does turn out to be the ma- tentionally shot and killed by a 14- rently addicted to drugs? Isn’t that the jority. But according to Federal data, year-old friend with a defectively de- expectation that everyone in that com- 1.2 percent of gun dealers account for signed gun—Kenzo Dix. His friend Mi- munity and every community around 57 percent of all guns recovered in chael thought he had unloaded his fa- the country has? Well, of course. criminal investigations. So obviously ther’s gun. He replaced it with an un- Any sensible employer would ensure we have a problem with a small group loaded magazine, he thought. But he that an employee who has access to of dealers. failed to realize that in the chamber of firearms would have some type of What are we telling those dealers the weapon there was still one round, check to ensure they are not drug ad- today if we pass the legislation? Don’t and when he fired the gun, it resulted dicts or former felons. worry; you can’t be sued. Even if you in the death of his playmate. They would be amazed if this legisla- represent the worst possible dealers in Sadly, we read these stories too tion passed because, frankly, what we the industry, even if you don’t barely often. We read these stories about the are telling the Kahr Arms company is, measure up to the standards of every individual who has a gun at home and

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.074 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1563 the kid find it. The kids don’t realize it Supply. There is some suggestion that Tobacco, Firearms and Explosives in- is loaded, and death or injury results. we fixed that problem. They have spected the gun dealer in 2000 and 2002. Now Beretta, the manufacturer, closed it and everyone is being pun- Bull’s Eye’s missing gun rate was could have easily designed the gun to ished. greater than at least 99.73 percent of have some type of indication whether Here are the facts: Bull’s Eye Shoot- all Federal firearms licensees. there was a round in the chamber. ers Supply is still open for business. There was no accounting for 238 They could have had some type of ac- The alcohol, tobacco, and firearms weapons. A large number of guns from tive device to prevent firing. None of agency revoked the license of Bull’s Bull’s Eye appeared in crimes. Between that was done, and, frankly, if we pass Eye prior owner, Mr. Brian Borgelt. 1997 and 2001, Bulls’ Eye guns were in- this legislation, it will never be done Mr. Borgelt’s friend, Kris Kindschuh, volved in at least 52 crimes, including because they don’t have to worry about then took over operation of the store. homicides, kidnappings, and assaults, a parent coming and saying: If you had Mr. Borgelt is appealing his license placing Bull’s Eye in the top 1 percent made these changes to that weapon, revocation to the Federal district of all dealers nationwide in the supply my son would be alive. court, and that case is pending. Let me of guns used in crimes. This appears to They don’t have anything to worry stop for a moment. This is an indi- be a pretty good source of weapons for about. We have to worry about it. If vidual who allegedly was so negligent crime. you are a parent and you have a fire- that he could not account for 238 weap- In addition, the time-to-crime ratio arm in your home, you have to worry ons, a litany of problems in terms of was less than 3 years for more than 70 about it especially. That is not right. following the law. His license is being percent of Bull’s Eye guns that were Again, this is not about sophisticated revoked, but he has a right—and he used in crimes from 1997 to 2001. Quick theories of liability, sophisticated should have the right—to go into court time-to-crime—the time the gun leaves theories of the history of tort law. It is and say this revocation is not based the store and shows up at a crime—sug- about common sense, common decency, upon the law or the facts. gests this store may be a highway for and common obligation. This bill vio- The irony here, of course, is we are guns into the criminal system. And lates all of them. telling victims—perhaps his victims— they have a high rate. There are lots of experts about fire- that they do not have a right to go into There were a large number of mul- arms, but there is one group that I court to seek redress. This, again, not tiple firearm sales. Between 1997 and think probably is more expert than only is unfortunate, it just defies a 2000, Bull’s Eye sold 663 guns to 265 in- others. That is the law enforcement rough sense of justice and fairness. dividual buyers, as many as 10 guns at community. Where do they stand on I think Mr. Borgelt should have a time. This is not the record of a scru- this legislation? More than 80 police every opportunity to appeal this rev- pulous, sincere dealer who is looking to chiefs, sheriffs, and State and national ocation to prevent an arbitration ac- enforce the standards of the industry. law enforcement organizations wrote tion by the Government, but don’t the Then, of course, there were numerous to all of us on February 11 to express victims of gun violence have a right to ATF citations. ATF cited Bull’s Eye their opposition to this effort to strip claim they have lost a great deal and for violations at least 15 times between away these legal rights. These are offi- they need redress in the courts? We 1997 and 2001 and, following the sniper cers from Maine to Texas to Wash- will protect his rights, as we should, attacks, revoked the license of Bull’s ington State to Virginia to my home but we are undermining the rights of so Eye’s former owner. State of Rhode Island, chiefs, rank- many others. Bull’s Eye was cited 15 times between and-file police men and women. As far as we know, the ATF, the De- 1997 and 2001. That is not an inspiring I ask unanimous consent that a copy partment of Justice have not filed any record of scrupulous enforcement of of this letter be printed in the RECORD criminal charges against Borgelt. So the laws of the country. at the conclusion of my remarks. the idea that this situation has been Yet what we are saying in this legis- The PRESIDING OFFICER. Without resolved, that this is fine, justice has lation is: Go ahead, you are fine; you objection, it is so ordered. been done, frankly, is not the case at might have your license revoked, but (See exhibit 1.) all. then you are upstairs in the shooting Mr. REED. These law enforcement of- Indeed, what I am told is Mr. Borgelt gallery. Or you might not. Maybe the ficers know a bit more about crime runs the shooting range upstairs above Government will make an error. Maybe than we do. It is their job. They do it Bull’s Eye Shooter Supply. The shoot- procedurally they have done something very well. They know about the dam- ing range is not regulated. So for all inappropriate, but certainly you are age to communities when guns fall into intents and purposes, particularly if not going to be able to face justice in the hands of those who misuse them. you are a victim of the sniper shoot- the sense of facing the victims of this They see it up close and personal. ings in Washington, DC, it does not negligence. Earlier this year, we were in a situa- look as if much has changed out there There is something else this record tion where previous to this bill there at Bull’s Eye Shooter Supply. says. It begs the question, What about was an effort to destroy gun records, If the ATF had recommended to the the manufacturer? Why did Bush- another effort launched on behalf of Department of Justice that they file master Firearms, the manufacturer of the gun lobby. These records are main- charges, it has been almost a year. I the sniper weapon used by the Wash- tained for a few days, but they wanted would hope the Department of Justice, ington area snipers, tolerate this? to eliminate these records within 24 in a case such as this, could move more Don’t they have an obligation to en- hours. Los Angeles Chief of Police Wil- promptly. But we have a situation, sure that the dealers they entrust with liam Bratton said: I just can’t under- frankly, that even if the Justice De- their weapons are not violating ATF stand how Members of Congress can partment acted, it still would not com- regulations—cited 15 times—that they even consider this. Obviously, they pensate and make whole the victims of are not selling multiple guns to indi- haven’t shown up to the scene of this series of crimes in Washington. viduals, sometimes 10 at a time? Ap- enough officer shootings. Let me focus for a minute on some of parently not. After this legislation This legislation is in a similar vein. the facts we know about Bull’s Eye passes, they won’t have to worry at all. It is not about destroying records of Shooter Supply because one of the key Many people ask, Why would a manu- gun purchases. It is destroying the issues here is whether or not the Wash- facturer be involved in this issue? Why right of an individual to say: I have ington sniper victims will be able to go should we be able to sue a manufac- been harmed. I need redress. into court if this legislation passes. turer? If a manufacturer, such as Bush- Again, if you talk to the law enforce- Here are some of the things that have master, not only keeps supplying weap- ment community, they are opposed to been established so far about this deal- ons to dealers such as this, but then this legislation. It is a free ride for the er in Washington State. turns a blind eye to all this evidence, it dealers, for the manufacturers, and for There are a large number of missing suggests to me they are not con- others. guns. Bull’s Eye could not account for forming to a reasonable standard of In this discussion, we have heard a 238 guns that were missing from its in- commercial conduct. You would not ex- great deal about Bull’s Eye Shooters ventory when the Bureau of Alcohol, empt an automobile manufacturer

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.077 S25PT1 S1564 CONGRESSIONAL RECORD — SENATE February 25, 2004 from potential liability if it was shown simple common sense. How can one Officers McGuire and Lemongello are pur- that they repeatedly sold cars to deal- stand up and say this legislation is de- suing legal action against Will’s for neg- ers that violated ATF—it would not be signed to protect and insulate injury ligent sales practices and against the gun’s ATF regulations, but consistently vio- from the wanton acts of these third manufacturer, Sturm, Ruger, for distrib- uting guns without requiring its dealers to lated regulations, that persistently al- party criminals and then also say but, adhere to a code of responsible business prac- lowed underage sales, for example, by the way, all of these cases will still tices that would prevent such obvious sales even though you could make the argu- go through? to gun traffickers. A West Virginia judge re- ment that as long as the 15-year-old I suspect there are things we could do cently ruled that the officers’ suit against does not drive the car, it is a legal sale. right now to help these cases go Will’s and Sturm, Ruger is well-grounded in But I think they would be suspicious at through. ‘‘Dismissal of pending ac- West Virginia law and should be heard by a least to what was happening. tions’’ could be struck. Clearly, that jury. If passed into law, S. 659 would override As a result, there is not only a strong would suggest that the sniper cases this decision and deprive these brave officers of their day in court. case but there is a necessary case that would be in order because this legisla- Police officers like Ken McGuire and David manufacturers have to be subject to a tion is not retroactive. Lemongello put their lives on the line every standard of care also. This legislation The thrust is not to give people day to protect the public. Instead of hon- would strip that away. rights; it is to take them away. It is to oring them for their service, S. 659 would de- My colleague from Idaho and my col- protect this one industry at the ex- prive them of their basic rights as American leagues on this side who support this pense of individual Americans. The leg- citizens to prove their case in a court of law. bill say: Listen, this is narrowly craft- islation is unusually preferential to a We stand with officers McGuire and ed; this is not going to throw any suits small interest group. It defies my un- Lemongello in urging you to oppose this bill. out of the courts. You cannot have it derstanding of why we would try to EXHIBIT 2 both ways. You cannot be claiming, on protect this industry, which is not fi- one hand, that we are protecting this nancially at risk by their own admis- BOIES, SCHILLER & FLEXNER LLP, Armonk, NY, February 17, 2004. industry from lawsuit and then, on the sions, at the expense of individual Re opinion letter concerning proposed immu- other hand, say everyone can still go to Americans who have been harmed. nity legislation for gun dealers and man- court after this legislation because I conclude by saying I never met ufacturers. they all qualify for the exemptions. It Conrad Johnson, but like all of us in MICHAEL BARNES, is nonsense. These exemptions have this Chamber, I woke up one morning President, The Brady Center to Prevent Gun Vi- been made so they do not exempt very and read about a bus driver reading his olence, Washington, DC. much, if anything at all. paper, waiting to go to work. I, frank- DEAR MR. BARNES: At your request, this There is an analysis—and I made ref- ly, thought of my father, who was a letter addresses the legal implications of the erence to it in my discussion sur- school custodian who got up in the proposed gun dealer and manufacturer im- rounding Bull’s Eye Shooter Supply— morning, read the paper, getting ready munity legislation, focusing specifically on the impact of the legislation on the pending by the law firm of Boies, Schiller & to go to work. civil lawsuit brought by the victims of the Flexner. I ask unanimous consent that He was shot reading that paper, Washington, DC area sniper attacks in the at the conclusion of my remarks this killed. He left a wife and small chil- fall of 2002. For the reasons discussed below, analysis be printed in the RECORD. dren. That wife and that family have it is our judgment that the passage of S. The PRESIDING OFFICER. Without gone to court to say: Where is our jus- 1805—the current version of the immunity objection, it is so ordered. tice? Maybe somebody will be con- bill, which incorporates the so-called (See exhibit 2.) victed for doing something wrong, but ‘‘Daschle Amendments’’—would require the Mr. REED. Mr. President, this law how are we going to live for the next 40 immediate dismissal of the sniper victims’ firm analyzed the legislation, and their or 50 years? People have been neg- claims against the parties who supplied the assault rifle used in the attacks. We further conclusion is, particularly with regard ligent—at least we think they have. conclude that the legislation would effect to the Washington area snipers, that There is a Bull’s Eye Shooters store far-reaching, and unprecedented, changes in their cases will be thrown out. that lost 238 weapons and was cited 15 the law that would insulate the gun industry There are two sections of the law times by the ATF. They are not going from other important pending cases as well which provide an exemption from the to have a day in court to answer to as future accountability. categorical dismissal of these cases. Mrs. JOHNSON? I cannot understand After providing a brief background con- They are section (5)(A)(ii) and this legislation. cerning the sniper victims’ civil suit and the (5)(A)(iii). Mr. President, (5)(A)(ii) says: I yield the floor. proposed legislation, we analyze the impact of the legislation on the pending sniper case. . . . actions against a seller for ‘‘negligent EXHIBIT 1 We then offer some more general observa- entrustment’’ or ‘‘negligence per se’’. ... FEBRUARY 11, 2004. tions about the proposed legislation, includ- And (5)(A)(iii) says: DEAR SENATOR: As active and retired law ing a discussion of its implications for other . . . actions against a manufacturer or sell- enforcement officers, we are writing to urge significant cases against gun dealers and er who violated a statute in the sale or mar- your strong opposition to S. 659, the so- manufacturers. called ‘‘Protection of Lawful Commerce in keting of a firearm or ammunition, where BACKGROUND Arms Act.’’ This bill would strip away the that statutory violation was a proximate I. The sniper victims’ legal claims against the cause of the plaintiff’s injuries. . . . legal rights of gun violence victims, includ- ing law enforcement officers and their fami- dealer and manufacturer who supplied the Their analysis concludes that neither lies, to seek redress against irresponsible snipers’ weapon of these exemptions would apply in the gun dealers and manufacturers. For over a month in the fall of 2002, John case of the Washington area snipers. The impact of this bill on the law enforce- Allen Muhammad and Lee Boyd Malvo ter- Those cases are already pending. They ment community is well illustrated by the rorized the nation’s capital and its sur- will be dismissed, thrown out. lawsuit brought by former Orange, New Jer- rounding states through a series of sniper at- It is interesting because we continue sey police officers Ken McGuire and David tacks on innocent men, women, and children. to talk about, well, these exemptions Lemongello. On January 12, 2001, officers From the trunk of Muhammad’s car, the will take care of all these cases, but it McGuire and Lemongello were seriously snipers used a deadly-accurate assault rifle wounded in a shoot-out with a burglary sus- to kill thirteen people, and to seriously in- turns out that they will not, that the pect. The Ruger pistol used by the suspect jure another six, in Washington, DC, Mary- various nuances, the wording, the was one of twelve guns sold by a West Vir- land, Virginia, Alabama, Louisiana and knowing violation of a statute, for ex- ginia pawnshop, Will’s Jewelry and Loan, to Georgia. Among the snipers’ victims were a ample, the arcane cases of negligence a ‘‘straw purchaser’’ for a gun trafficker. The 47-year-old FBI analyst who was loading a entrustment and negligence per se, all-cash sale, for thousands of dollars, was so car with her husband in a Home Depot park- which are constructs that only a law- obviously suspicious that Will’s reported it ing lot, a 72-year-old retired carpenter who yer could fully appreciate and enjoy, to the Bureau of Alcohol, Tobacco and Fire- was waiting on a street corner, and a 13-year- all of this is craftily designed to pre- arms, but only after the sale was con- old boy who had just been dropped off at summated. The pawnshop had every reason school. Muhammad and Malvo were appre- vent people from going to court, not to to believe that, as soon as the guns left its hended on October 24, 2002, and have since give them a fair right in court. premises, they would be sold into the under- been convicted for their crimes. Again, it goes down not to these nu- ground market, destined to threaten the The weapon that Muhammad and Malvo ances, to this legal terminology but lives of police officers and ordinary citizens. used in the sniper attacks was a Bushmaster

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.080 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1565 XM–15 E2S .223 semi-automatic rifle which of its dealers were supplying such been proposed by Minority Leader Tom equipped with a bipod and telescopic sight. guns; neglecting to require Bull’s Eye to Daschle (D–SD). The current version of the The snipers obtained the ‘‘one shot, one kill’’ adopt any of ATF’s suggested measures for immunity bill (S. 1805), which incorporates assault weapon they used in the shootings preventing gun thefts; and failing to require the so-called ‘‘Daschle Amendments,’’ is ex- from Bull’s Eye Shooter Supply in Tacoma, Bull’s Eye to notify it of gun trace requests pected to be considered by the Senate in the Washington, even though the law prohibited initiated by law enforcement agencies or to first week of March 2004. either of them from purchasing any firearm. certify its compliance with firearms laws According to its terms, S. 1805 would fore- Muhammad was under a domestic violence and regulations. Even after the sniper at- close—and require the immediate dismissal protective order, and Malvo was both a juve- tacks, Bushmaster, through its vice presi- of—any state or federal ‘‘qualified civil li- nile and an illegal alien. Bull’s Eye rep- dent of administration, referred to Bull’s ability action,’’ § 3(a), which the statute de- resentatives claim not to have any record of Eye as ‘‘a good customer’’ to whom Bush- fines to include any ‘‘civil action brought by sale for the weapon and cannot account for master would continue to sell guns. any person against any manufacturer or sell- how the snipers obtained the assault rifle. Victims of the sniper attacks and the fami- er’’ of firearms or ammunition ‘‘for damages The publicly-available evidence reveals lies of victims who were killed have filed a resulting from the criminal or unlawful mis- that in addition to permitting the snipers’ civil lawsuit in Washington State Court use’’ of such products. § 4(5)(A). From this weapon to disappear from its shop, Bull’s against Bull’s Eye Shooter Supply and Bush- blanket prohibition on such civil actions, Eye Shooter Supply engaged in numerous ir- master Firearms for their roles in permit- section 4(5)(A) of the proposed bill carves out responsible business practices: ting the snipers to access their murder weap- the following exclusive list of circumscribed Large Number of Missing Guns. Bull’s Eye on. According to the complaint: ‘‘In addition exceptions: could not account for a total of 238 guns that to the intentional acts of Muhammad and (i) actions against a manufacturer or seller were missing from its inventory when the Malvo, the gross negligence of the gun indus- who has been criminally convicted of trans- Bureau of Alcohol, Tobacco, Firearms and try defendants caused the injuries and ferring a firearm with the knowledge that it Explosives (‘‘AFT’’) inspected the gun dealer deaths that resulted from the sniper shoot- would be used to commit a violent or drug- in 2000 and 2002. Bull’s Eye’s missing gun ings by enabling prohibited purchasers Mu- trafficking crime, if the plaintiff was di- rate was greater than at least 99.73% of all hammad and Malvo to obtain the Bush- rectly harmed by the conduct of which the federal firearms licensees; 80% of dealers master assault rifle to wreak havoc on inno- recipient of the firearm has also been crimi- who sell at least 50 firearms per year can cent persons.’’ Specifically with respect to nally convicted; provide records to account for every one of Bull’s Eye, the plaintiffs claim that the gun (ii) actions against a seller for ‘‘negligent their gun sales. dealer’s grossly irresponsible business prac- entrustment’’ or ‘‘negligence per se’’; Large Number of Crime Guns. Between 1997 tices routinely permitted guns, including the (iii) actions against a manufacturer or sell- and 2001, Bull’s Eye guns were involved in at snipers’ weapon, to disappear from its store. er who violated a statute in the sale or mar- least 52 crimes, including homicides, They further claim that ‘‘Bushmaster delib- keting of a firearm or ammunition, where kidnappings, and assaults, placing Bull’s Eye erately continued to utilize Bull’s Eye as a that statutory violation was a proximate in the top 1% of all dealers nationwide in the Bushmaster gun dealer and supplied it with cause of the plaintiff’s injuries; supply of guns used in crimes. That same 1% as many guns as Bull’s Eye wanted, despite (iv) actions for breach of contract or war- of gun stores supplies the weapons traced to years of audits by the Bureau of Alcohol, To- ranty in connection with the purchase of a 57% of all gun crimes. bacco, Firearms and Explosives showing that firearm or ammunition; and Quick Time-to-Crime. The ‘‘time-to- Bull’s Eye had scores of missing guns.’’ At (v) actions for physical injuries or property crime’’ was less than 3 years for more than the heart of plaintiffs’ Complaint is their al- damages resulting directly from a design or 70% of Bull’s Eye guns that were used in legation that if Bull’s Eye and Bushmaster manufacturing defect in a firearm or ammu- crimes between 1997 and 2001. Quick time-to- had ‘‘acted responsibly in the sale of their nition, when such items have been used as crime is considered a ‘‘red flag’’ for problem guns, Muhammad and Malvo would not have intended or in a ‘‘reasonably foreseeable’’ gun dealers because it indicates that such been able to obtain the assault rifle they manner (as that term is defined in the bill). dealers’ guns are quickly getting into crimi- needed to carry out the shootings.’’ Because S. 1805 expressly disclaims any in- nal hands through illegal trafficking. In 2000, On June 27, 2003, Washington Superior tention to create causes of actions or rem- 1 the nationwide median time-to-crime was 6 ⁄2 Court Judge Frank E. Cuthbertson upheld edies, see § 4(5)(D), the above-described excep- years, and the time-to-crime was under 3 the sniper victims’ claims against the de- tions would only preserve civil claims years for only 31% of traced crime guns. The fendants’ motion to dismiss, concluding that brought under otherwise applicable state or time-to-crime for the snipers’ weapon— the plaintiffs’ negligence and public nuisance federal law. Other than as specifically pre- which was received by Bull’s Eye in July claims were actionable against both Bull’s served by these exceptions, however, the pro- 2002—was under 3 months. Eye and Bushmaster. Johnson v. Bulls Eye posed legislation would preempt, as a matter Large Number of Multiple Firearm Sales. Shooter Supply, No. 03–2–03932–8, 2003 WL of federal law, any state or federal lawsuits Between 1997 and 2000, Bull’s Eye sold 663 21639244 (Wash. Super. Ct. June 27, 2003). The against irresponsible sellers or manufactur- guns to 265 individual buyers, as many as 10 court found that the plaintiffs’ claims ers of firearms or ammunition. guns at a time. Such ‘‘multiple firearms against Bull’s Eye could stand based on ‘‘a ANALYSIS sales’’ are considered to be another indicator common law duty in Washington to use rea- that a gun dealer may be selling to gun traf- sonable care in the sale and distribution of I. The proposed immunity legislation would like- fickers. firearms’’; that the ‘‘facts in the present case ly require the immediate dismissal of the snip- Numerous ATF Citations. ATF cited Bull’s indicate that a high degree of risk of harm to er victims’ claims Eye for violations at least 15 times between plaintiffs was created by Bull’s Eye Shooter Close examination of the exceptions enu- 1997 and 2001, and, following the sniper at- Supply’s allegedly reckless or incompetent merated in section 4 of the proposed immu- tacks, revoked the license of Bull’s Eye’s conduct in distributing firearms’’; and that nity legislation reveals that none would ap- former owner. the facts alleged ‘‘demonstrate an arguably pear to preserve the claims brought by the Following ATF’s revocation of his license, unbroken nexus between the loss of the as- victims of the sniper attacks and their fami- Bull’s Eye’s former owner transferred owner- sault rifle and the injuries of the plaintiffs.’’ lies against the parties responsible for per- ship of the store to a close friend. Bull’s Eye The Court further concluded that the plain- mitting the snipers to obtain their murder continues to operate today, and the store’s tiffs’ claims against Bushmaster should be weapon. In fact, the passage of S. 1805 would former owner retains ownership of the prop- permitted to reach a jury based on Bush- likely compel the judge in the sniper case erty and operates a shooting range in the master’s entrusting firearms to Bull’s Eye immediately to dismiss those claims. The same building. following analysis focuses on paragraphs The manufacturer of the snipers’ murder even though Bushmaster allegedly ‘‘knew or (5)(A)(ii) and (5)(A)(iii) of the proposed legis- weapon of choice, Bushmaster Firearms, Inc. should have known that Bull’s Eye Shooter lation because those provisions contain the of Maine, not only modeled its XM–15 rifle Supply was operating its store in a reckless only exceptions that could even conceivably after military-style assault weapons that or incompetent manner, creating an unrea- apply to the sniper case. Congress outlawed with the Assault Weapons sonable risk of harm.’’ Trial in the case Ban in 1994, but also marketed the rifle as an against Bull’s Eye and Bushmaster has been A. The Statutory Violation Exception Em- assault weapon designed for sniper activity. set for November 2004. bodied in Paragraph (5)(A)(ii) Will Not At the time, Bushmaster selected and used II. The proposed immunity legislation for gun Save the Sniper Victims’ Claims Bull’s Eye as one of its sixty distributors na- dealers and manufacturers Section 4, paragraph (5)(A)(ii) of the pro- tionwide despite numerous ‘‘warning signs’’ On April 9, 2003, the House of Representa- posed legislation preserves an ‘‘action in concerning Bull’s Eye’s handling of its fire- tives passed a bill (H.R. 1036) to provide which a manufacturer or seller of a qualified arms inventory. Bushmaster also allegedly sweeping immunity from pending and future product violated a State or Federal statute failed to take certain basic precautions con- lawsuits to distributors, dealers, manufac- applicable to the sale or marketing of the cerning the guns it shipped to Bull’s Eye and turers, and importers of firearms and ammu- product, and the violation was a proximate others, including, among other things, de- nition. Senator Larry Craig (R–ID) intro- cause of the harm for which relief is sought. clining the Justice Department’s offer to as- duced companion legislation in the Senate . . .’’ According to well-settled tort law prin- sist Bushmaster in tracing guns that had (S. 659), which, last October, was modified to ciples, proximate cause requires that a de- been used in crimes in order to determine incorporate certain amendments that had fendant’s conduct was ‘‘a substantial factor

VerDate jul 14 2003 02:38 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\CR\FM\A25FE6.011 S25PT1 S1566 CONGRESSIONAL RECORD — SENATE February 25, 2004 in bringing about the harm’’ suffered by the the sniper case. As an initial matter, because ating the truck solely for his own conven- plaintiff. See Restatement (Second) of Torts the subparagraph (A)(ii) exceptions are spe- ience in going from his place of employment, § 431 (2003); accord Derdiarian v. Felix Con- cifically limited to a ‘‘seller’’ and, as defined at the end of his day’s work, to his home on tracting Corp., 414 N.E.2d 666, (N.Y. 1980); An- in paragraph (6), seller does not include fire- a rainy day; and that he had taken the truck derson v. Duncan, 968 P.2d 440, 442 (Wyo. 1998). arm manufacturers, the exceptions would without anyone’s permission or direction Where a defendant’s statutory violation was not even apply to the claims against Bush- and without defendant’s knowledge’’). not a requirement to reject claims based on master. Moreover, as explained below, the Although courts throughout the country that violation. See, e.g., Fox v. Bartholf, 374 plaintiffs’ claims against Bull’s Eye would have recognized separate claims for the neg- So. 2d 294, 296 (Ala. 1979) (affirming summary not appear to fall within the narrow ‘‘neg- ligent storage or security of firearms, see, judgment for defendants where there was no ligent entrustment’’ and ‘‘negligence per se’’ e.g., Heck v. Stoffer, 786 N.E.2d 265, 268–70 evidence that truck driver’s alleged viola- exceptions of S. 1805. (Ind. 2003); Gallara v. Koskovich, 836 A.2d 840, 851 (N.J. Super. Ct. Law Div. 2003); Long v. tion of statute, which prescribed lawful 1. Negligent entrustment speed in approaching highway intersections Turk, 962 P.2d 1093, 1097 (Kan. 1998); Pavlides For purposes of applying paragraph v. Niles Gun Show, Inc., 637 N.E.2d 404, 408–10 when driver’s view is obstructed, proxi- (5)(A)(ii), the proposed legislation provides mately caused plaintiff’s injury); Yates v. (Ohio Ct. App. 1994); Kimbler v. Stillwell, 734 the following definitions of ‘‘negligent en- P.2d 1344, 1346–48 (Or. 1987) (en bank); Cathey Shackelford, 784 N.E.2d 330, 336–37 (Ill. App. trustment’’: ‘‘the supplying of a qualified v. Bernard, 467 So. 2d 9, 11 (La. Ct. App. 1985), Ct. 2002) (affirming summary judgment for product by a seller for use by another person such claims would be foreclosed by the pro- defendants where defendant driver’s viola- when the seller knows, or should know, the posed immunity legislation. tion of left-shoulder parking ban did not person to whom the product is supplied is Furthermore, the narrow definition of proximately cause collision); Travelers Indem. likely to, and does, use the product in a man- ‘‘negligent entrustment’’ in the proposed Co. of Ill. v. 28 East 70th St. Constr. Co., No. 01 ner involving unreasonable risk of physical statute would likely prevent the plaintiffs Civ. 3001 (JGK), 2003 WL 23018604 (S.D.N.Y. injury to the person or others.’’ § 4(5)(B). In from relying on that exception for yet an- Dec. 22, 2003) (granting defendant’s motion light of the evidence that Malvo shoplifted other reason. The evidence that the snipers’ for summary judgment where alleged failure the snipers’ weapon from Bull’s Eye, the weapon was shoplifted from Bull’s Eye would to stamp pipe with manufacturer’s identi- plaintiffs in the sniper case will face signifi- appear to preclude the plaintiffs from mak- fication number in violation of building code cant obstacles qualifying for that statutory ing the requisite showing under the statute ‘‘clearly did not proximately cause the pipe exception. that the gun shop knew or should have to freeze and burst’’). Courts have repeatedly rejected negligent known that the recipient of the gun (i.e., The plain language of paragraph (5)(A)(ii) entrustment claims absent evidence that the Malvo) was likely to use the product in a would appear to dictate the same result in defendant acted affirmatively in entrust- criminal or otherwise unreasonably dan- the sniper case. Despite the above-discussed ing—or, in the words of paragraph (5)(A)(ii), gerous manner. evidence of Bull’s Eye numerous failings as a ‘‘supplying’’—the dangerous instrumentality 2. Negligence per se gun dealer, there is no reason to believe that in question. See Butler v. Warren, 582 S.E.2d The proposed immunity bill does not de- the plaintiffs in the sniper case will be able 530, 532–33 (Ga. Ct. App. 2003) (affirming sum- fine ‘‘negligence per se,’’ but to the extent to show that Bull’s Eye violated any state or mary judgment against plaintiff’s negligent that the negligent per se exception in para- federal statute with respect to the particular entrustment claim where evidence did not graph (5)(A)(ii) would permit the survival of gun that was used by the snipers or that any permit finding that defendants had allowed state causes of action, it will not assist the such statutory violation was a proximate their truck to be driven off their property); plaintiffs in the sniper case: the negligence cause of the sniper attacks. The evidence Mackey v. Dorsey, 655 A.2d 1333, 1338 (Md. Ct. per se doctrine has been abrogated by stat- concerning the acquisition of the snipers’ Spec. App. 1995) (affirming trial court’s find- ute in Washington State. See RCWA 5.40.050; weapon supports Bull’s Eye’s claim that Lee ing that defendant was ‘‘not liable for neg- Morse v. Antonellis, 70 P.3d 125, 126 (Wash. Boyd Malvo shoplifted the gun. Indeed, after ligent entrustment’’; ‘‘We find it axiomatic 2003); see also Pettit v. Dwoskin, 68 P.3d 1088, this arrest, Malvo admitted that he that when a vehicle is stolen, as it was here, 1091–92 (Wash. Ct. App. 2003) (‘‘But the doc- shoplifted the weapon from Bull’s Eye in the the owner cannot be said to have supplied, trine of negligence per se is no longer viable summer of 2002. Although the plaintiffs entrusted, or ‘made available’ his or her ve- in Washington. Rather, violation of a legal claim that Bull’s Eye’s lax security practices hicle. The ‘making available’ of the chattel requirement is evidence of negligence.’’). permitted Malvo to acquire the weapon, such requires that the supplier do so knowingly or In any event, the negligence per se excep- proof would not establish a violation of any with the intent to supply the chattel to that tion would not preserve the sniper case be- state of federal statute. person.’’); Kingrey v. Hill, 425 S.E.2d 798, 799 cause even where that doctrine is recognized, Of course, the plaintiffs in the sniper case (Va. 1993) (reversing trial court and entering it requires a violation of a statute or regula- could attempt to shoehorn Bull’s Eye’s fail- judgment for defendant on plaintiff’s neg- tion that is the proximate cause of the plain- ure to report the theft of the snipers’ weapon ligent entrustment claim, which was based tiff’s injury. See 57A. Am. Jur. 2d Negligence § 728 (2003); O’Guin v. Bingham County, 72 P.3d into the illustration provided in subpara- on defendant’s failure to prevent access to 849, 856 (Idaho 2003); Elder v. E.I. DuPont De graph (A)(iii)(I), which covers ‘‘any case in rifle; court analogized to car cases, in which Nemours & Co., 479 So. 2d 1243, 1248 (Ala. 1985). which the manufacturer or seller knowingly finding of ‘‘entrustment’’ requires ‘‘evidence As discussed above, however, it is doubtful made any false entry in, or failed to make of express permission, evidence of a pattern that the plaintiffs in the sniper case will be appropriate entry in, any record required to of conduct supporting implied permission, or be kept under Federal or State law.’’ Federal able to establish that any such violation was evidence of knowledge that an automobile a substantial factor in causing their injuries. law requires licensed gun dealers to report would be used notwithstanding explicit in- II. The proposed immunity legislation would the loss or theft of a firearm ‘‘within 48 structions to the contrary’’); Todd v. Dow, 19 overturn well-settled legal principles and jeop- hours after the theft or loss is discovered.’’ Cal. App. 4th 253, 260–61, 23 Cal. Rptr. 2d 490, ardize other important gun cases 18 U.S.C. § 923(g)(6). The difficulty with this 494–95 (Cal. Ct. App. 1993) (affirming sum- argument, however, is that Bull’s Eye has mary judgment for parents in negligent en- The proposed immunity legislation would denied that it knew the gun was missing trustment claim arising from their storage have far-reaching implications beyond its until the sniper suspects were apprehended of adult child’s rifle in their house; ‘‘Liabil- likely direct and immediate effect on the and authorities had traced the gun to the ity for negligent entrustment arises from the pending civil case brought by the snipers’ shop, and there is no known evidence to re- act of entrustment .... Parents did not victims. The statute would accord gun deal- fute that claim. (Bull’s Eye in fact reported sell, loan, furnish, or supply the rifle.’’); ers and manufacturers an unprecedented im- munity. Indeed, under the statute, dealers the missing gun to authorities on November ‘‘Commercial Carrier Corp. v. S.J.G. Corp., 409 and manufacturers of lethal weapons would 5, 2002.) Given Bull’s Eye’s claim, and the So. 2d 50, 52 (Fla. Dist. Ct. App. 1981) (affirm- receive insulation from lawsuits to which fact that the sniper shootings were over by ing dismissal of negligent entrustment claim the sellers and makers of virtually every the time Bull’s Eye’s federal reporting re- for injuries sustained in car accident after quirement would have been triggered by its other product (including even toy guns) defendant left keys in unattended car and would be subject. As discussed herein, the discovery that the weapon was missing, it car was stolen; absent proof of knowledge appears unlikely that the plaintiffs will be legislation would close courtroom doors na- and consent of car owner, liability for neg- tionwide to any claims arising out of, among able to avoid dismissal based on subpara- ligent entrustment will not lie); Cutler v. graph (A)(iii)(I). other things, the negligent security or stor- Travelers Ins. Co., 412 A.2d 284, 285 (Vt. 1980) age practices of any gun dealer or manufac- B. The Negligent Entrustment/Negligence (affirming dismissal of plaintiffs’ claims turer, the negligent sale of guns by and deal- Per Se Exceptions Embodied in Paragraph arising out of collision, which resulted from er to so-called ‘‘straw purchasers’’ for illegal (5)(A)(ii) Will Not Save the Sniper Victims’ car theft; fact that defendant left keys in car gun traffickers, and the negligent failure of Claims ignition or truck lock could not establish en- any gun manufacturer to include basic safe- Nor is it likely that the exceptions em- trustment of car, by express or implied con- ty devices that would have prevented bodied in paragraph (5)(A)(ii) of section 4— sent, to car thief); Reicher v. Melzer, 158 tortious or criminal shootings. which covers actions ‘‘brought against a sell- N.E.2d 191, 193 (Ohio 1959) (affirming directed The implications of the sweeping immu- er for negligent entrustment or negligence verdict for defendant on plaintiff’s negligent nity proposed for the gun industry are fur- per se’’—would save the plaintiffs’ civil entrustment claim where record showed that ther compounded by the fact that the indus- claims against Bull’s Eye and Bushmaster in employee involved in accident ‘‘was oper- try is already largely exempt from federal

VerDate jul 14 2003 02:28 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\CR\FM\A25FE6.015 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1567 regulations that apply to the manufacture chines, security cameras, or security guards; Smith’s parents sued the manufacturer and distribution of other products. Guns did not check employees at the end of their (Bryco Arms) and the distributor (Jennings were specifically exempted from the jurisdic- shifts; did not use any inventory-tracking Firearms) of the J–22 alleging negligence and tion of the Consumer Product Safety Com- system to determine when weapons or parts products liability claims based on the de- mission, which Congress created in 1972 to were missing; and could not account for ap- fendants’ failure to incorporate any of the protect the public from consumer product in- proximately 16 outgoing shipments of weap- various available safety features that would juries. Even ATF—which licenses and over- ons that never arrived at their intended des- have prevented the accidental shooting, in- sees gun dealers—lacks any authority to es- tinations between February 1998 and Feb- cluding an internal ‘‘magazine-out safety’’ tablish manufacturing or distribution stand- ruary 1999. On April 7, 2003, the Massachu- lock, a ‘‘chamber load indicators,’’ or a writ- ards for firearms. setts Superior Court upheld the plaintiffs’ ten warning on the gun alerting users that Focusing exclusively on criminal and other negligence and public nuisance claims the J–22 could fire even with its magazine re- statutory prohibitions, supporters of the pro- against Kahr Arms’ motion to dismiss. The moved. Reversing a lower court decision, the posed immunity legislation have argued that Guzman’s family’s right to sue Kahr Arms New Mexico Court of Appeals has held that the bill would simply eliminate lawsuits would be immediately revoked if the pro- the defendants could be held liable for their against gun dealers and manufacturers who posed immunity legislation were to pass. As failure to incorporate long-known, available, ‘‘have not broken the law.’’ But this over- in the sniper case, the claims against Kahr and economically feasible safety devices in simplified view ignores the pivotal role that Arms involve irresponsible security for dead- the J–22. The proposed immunity legislation, state and federal common law plays in pro- ly weapons, claims that would be foreclosed however, would require the immediate dis- moting public safety and accountability, in by the proposed immunity legislation. First, missal of these claims because the shooting addition to ensuring compensation for the the plaintiffs’ claims of negligent security of Sean Smith, even if accidental, con- victims of dangerous and irresponsible con- against Kahr Arms do not involve any statu- stituted an ‘‘unlawful misuse’’ of the J–22, duct. Beyond criminal and other statutory tory violation. Moreover, the negligent en- thereby removing the case from the statu- proscriptions on such conduct, civil common trustment exception would not apply to tory exception ostensibly intended for cases law has long protected the public by holding Kahr Arms for the dual reasons that it is a involving gun design or manufacturing de- businesses and individuals alike to a stand- firearm manufacturer and that it did not en- fects. See §§ 4(5)(A)(v) (preserving ‘‘an action ard of reasonable care in all their activities. trust any weapon to Danny Guzman’s shoot- for physical injuries or property damage re- The broad insulation from suit promised by er. sulting directly from a defect in design or Lemongello v. Will Company, No. Civ.A. 02– the immunity legislation would largely free manufacture of the product, when used as in- C–2952, 2003 WL 21488208 (W. Va. Cir. Ct. Mar. the makers and sellers of deadly weapons tended or in a manner that is reasonably 19, 2003). New Jersey Policy Detective David from such generally applicable common law foreseeable’’) & 4(5)(C) (defining ’‘reasonably standards. Lemongello and Officer Kenneth McGuire were seriously injured in January 2001 when foreseeable’’ for purposes of paragraph Nor does the fact that gun injuries often 5(A)(v) to exclude ‘‘any criminal or unlawful result from criminal acts provide a legal jus- they were shot by a career criminal while performing undercover police work. Even misuse of a qualified product, other than tification for the immunity legislation. It possessory offenses’’). Indeed, given the fact has long been a settled principle of tort law though the shooter was a person prohibited by law from purchasing a firearm, he ob- that virtually any shooting of a person that an intervening act of a third party, even would constitute a ‘‘criminal or unlawful if criminal (e.g., a sniper shooting), will not tained his weapon, a nine millimeter semi- automatic Ruger handgun, illegally from a misuse’’ of a firearm, the immunity legisla- break the causal chain from a party’s neg- tion would effectively eliminate most claims ligence (e.g., the negligent distribution of gun trafficker. The trafficker, in turn, was also prohibited from buying weapons due to arising out of the defective design or manu- the murder weapon) to a plaintiff’s injury so facture of a firearm. long as the intervening act was reasonably a prior felony, so he used an accomplice (a foreseeable. See, e.g., Largo Corp. v. Crespin, so-called ‘‘straw purchaser’’) to make mul- By preventing these cases, and future cases 727 P.2d 1098, 1103 (Colo. 1986) (en banc); tiple gun purchases from defendant Will Jew- like them, from proceeding against irrespon- Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d elry & Loan, in West Virginia. In their law- sible gun dealers and manufacturers, the pro- 54, 55–56 (Fla. 1977); see also Restatement (Sec- suit against Will Jewelry & Loan and others, posed immunity legislation would undermine ond) of Torts § 302B (2003) (‘‘An act or an omis- the officers allege that the gun dealer acted the incentives that encourage reasonable sion may be negligent if the actor realizes or negligently in selling the straw purchaser business practices in the gun industry, there- should realize that it involves an unreason- twelve guns (including the Ruger used in the by inevitably failing to deter avoidable gun able risk of harm to another through the shooting of the two officers) that had been injuries and fatalities. conduct of the other or a third person which selected in person by the gun trafficker and In sum, the proposed legislation would in- is intended to cause harm, even though such paid for in a single cash transaction. The cir- sulate gun dealers and manufacturers from conduct is criminal.’’). As Judge Cuthbertson cumstances of that sale were so suspect that the obligations to act reasonably and in good correctly recognized in the sniper case, the defendant dealer reported it to the faith that every other business has. If the where a defendant handles a lethal weapon in ATF—but only after the purchase price had legislation were to pass, sellers of products an irresponsible manner, through which been collected and the guns had left the that are among the most dangerous products criminals and other prohibited persons may store. The officers’ suit further charges gun would have the least obligation to act rea- access it and use it to commit dangerous manufacturer Sturm Ruger & Company with sonably. negligently failing to monitor and train its crimes, the question of whether there is an For all of the above reasons, it is our judg- distributors and dealers and negligently fail- adequate causal link between the ment that the passage of S. 1805 would re- tortfeasor’s conduct and the resulting inju- ing to prevent them from engaging in straw quire the immediate dismissal of the pending ries is for a jury to decide. Johnson, 2003 WL and multiple firearm sales. Although a West civil case against the gun dealer and manu- 21639244, at *3–4. Virginia trial court has held that the plain- facturer who supplied the snipers’ murder In addition to the sniper case, the proposed tiffs have stated valid negligence and public weapon as well as other significant cases immunity would likely require the dismissal nuisance claims under state law, the pro- against gun dealers and manufacturers. Fur- of several other important cases that seek to posed immunity legislation would require thermore, by providing the gun industry hold allegedly reckless gun dealers and man- the immediate dismissal of those claims. with unprecedented immunity from common ufacturers responsible for their conduct, in- Notwithstanding the plaintiffs’ claims that law claims directed at those who engage in cluding: the defendants failed to exercise reasonable irresponsible and dangerous business prac- Hernandez ex rel. Guzman v. Kahr Arms, Civ. care in their sales of firearms, neither the tices, the proposed legislation would further Act. No. WOCV2002–01747 (Mass Super. Ct. dealer nor the manufacturer violated any insulate the sellers and manufacturers of 2003). Danny Guzman was shot and killed statutory prohibition in selling the guns. deadly weapons from public accountability with a nine millimeter handgun, one of sev- Nor could the plaintiffs contend that their for such conduct. eral guns that had been stolen and resold by case falls within the ‘‘negligent entrust- Sincerely, employees of the Kahr Arms factory. Accord- ment’’ exception to the proposed immunity AVID BOIES. ing to the lawsuit filed by the decedent’s legislation because the gun dealer supplied D SEAN ESKOVITZ. family, defendant Kahr Arms employed a the firearm to a straw purchaser—not to number of convicted criminals and drug ad- someone whom the seller knew or should The PRESIDING OFFICER. The Sen- dicts because it did not conduct general or have known was likely to, and did, use the ator from Utah. criminal background checks on its employ- product in a manner involving unreasonable Mr. HATCH. I rise today in support of ees and did not test prospective or existing risk of physical injury to the person or oth- employees for drugs. To make matters ers. S. 1805, the Protection of Lawful Com- worse, the plaintiffs allege that Kahr Arms Smith v. Bryco Arms, 33 P.3d 638 (N.M. Ct. merce in Arms Act. This critically im- did nothing to prevent employees from leav- App.), cert. denied, 34 P.3d 610 (N.M. 2001). portant bipartisan legislation will ing its plant with guns—which Kahr touted Fourteen-year-old Sean Smith was seriously block baseless lawsuits initiated by in- as ‘‘the smallest, flattest, most reliable full injured when a friend accidentally shot him dividuals who wish to drive out of busi- power compact handguns made’’—even be- in the mouth with a .22 caliber handgun, the ness a lawful and legitimate business, fore they had been stamped with serial num- Bryco J–22. The shooter believed the gun was the American firearms industry. bers, rendering them virtually untraceable. unloaded because the ammunition magazine Among the plaintiffs’ other claims, Kahr had been removed; the gun failed to reveal This bill will halt lawsuits that are Arms had no metal detectors, x-ray ma- the hidden bullet in its chamber. Sean nothing more than shameless attempts

VerDate jul 14 2003 04:17 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\CR\FM\A25FE6.018 S25PT1 S1568 CONGRESSIONAL RECORD — SENATE February 25, 2004 to advance a stalled anti-gun legisla- time it was sold and that a plaintiff’s ashamed to bring these type of cases. tive agenda and a flagrant abuse of the injury must have been the result of In this particular bill, we protect the judicial system. I commend my col- that defect. However, in the firearms consuming public and others from irre- league, Senator LARRY CRAIG, and context, gun manufacturers and deal- sponsible misuse of firearms. We pro- other cosponsors from both sides of the ers are potentially liable for injuries tect them from irresponsibility on the aisle, over 50 of them, for their hard that occur because their properly oper- part of any gun manufacturer. That work to get this bill to the Senate ating product is criminally or neg- needs to be said, and it needs to be said floor. ligently misused. Now, this is unac- over and over. As my colleagues are aware, I have ceptable. The fact is, what we have is a lot of long been a proponent of legislation I would also like to take this oppor- very liberal thinkers who think that that addresses the growing problem of tunity to make clear that this legisla- guns should not be owned by anybody, lawsuit abuse. The issues addressed by tion does not relieve from liability or they should be owned only by a this legislation will remedy one such gunmakers who create defective prod- few—I guess those who have been to class of shameless and abusive law- ucts or gun dealers who negligently some sort of anti-gun college. suits. I am hopeful this will be the first sell weapons when they know or should The fact is, most Americans own of many other reform measures that have known that such a weapon would guns, most Americans value guns, most the Senate will take up before the end be used in a crime. Americans believe in protecting them- of the 108th Congress. This includes as- Additionally, this legislation con- selves and their families. Where we bestos reform that would save this tains the following significant safe- have the most guns, that is where we country, save jobs, provide jobs, for guards: One, an action brought against have the lowest amount of crime. hundreds of thousands of people; bank- a transferor convicted for transferring Everybody knows I have brought a ruptcy, which also would save jobs that a firearm knowing it would be used in bill to the Senate to allow guns to be our friends on the other side seem to be a crime of violence or drug trafficking kept in the home in the District of Co- stopping; and class action reform, crime by a party directly harmed by lumbia, which many refer to as Murder which in the end would save jobs. the conduct of which the transferee is Capital USA. I don’t want to bring that As I mentioned, this legislation has so convicted; No. 2, an action brought up as an amendment on this. I might broad bipartisan support, including against a seller for supplying a firearm have to, if some of these irresponsible from the minority leader. I agreed with or ammunition to another person when amendments filed pass. We know the my colleague, Senator DASCHLE, when one knows or should know that person only way this bill is going to make it he quite accurately stated: is likely to and does use the product in to the President’s signature is if it It is wrong, and it is a misuse of the civil a manner involving unreasonable risk doesn’t have any other amendments on justice system, to try to punish honest, law- of physical injury to the person and it. But if any others pass, I think we abiding people for illegal acts committed by others for negligence per se; No. 3, an ought to vote on that one as well. Be- others without their knowledge or involve- action in which a manufacturer or sell- cause, to be honest with you, I have ment. That’s not the way we do things in er violated a State or Federal statute had hundreds of DC residents call me America. We do not hold innocent people re- applicable to the sale or marketing of and say thank God somebody is acting sponsible for acts they are not involved in the product and the violation was the in our interests, where we can at least and over which they have no control. proximate cause of the harm for which protect our homes. I commend Senator DASCHLE. He relief was sought; No. 4, an action for That is how bad it is. We have people could not have said it better. I call breach of contract or warranty in con- who just don’t believe in guns, don’t these lawsuits shameless because the nection with the purchase of a product; believe in sportsmanship, don’t believe trial lawyers who bring them—and or No. 5, an action for physical injuries in the right to collect guns, who are they are really personal injury law- or property damage resulting directly going to be against them for political yers, by and large, who bring them— from a defect in design or manufacture reasons because they think there are dislike and attack a product that is of the product when used as intended political advantages for them. Frankly, produced and marketed legally. What or in a manner that is reasonably fore- I think they are going to find there are is going on is simply outrageous. It is seeable. not any political advantages for them as absurd as suing a car manufacturer Now, because this bill strikes the because most people in our country be- for drunken driving accidents or suing right balance between protecting the lieve in the right to have their own a fast food company because a ham- general public and those who manufac- arms. Most people hunt and fish. Most burger has more calories than it ture a lawful product, I strongly sup- people are proud of the fact they can should. We must put a stop to these port the legislation, and I urge all of take their young boys or girls out and senseless lawsuits before our legal sys- my colleagues to do the same. have target practice and shoot guns. tem grinds to a halt. We all know what is involved. We The fact is, the vast majority, the The need for legislation of this type know the personal injury lawyers are highest percentile in the world, use is imperative. This legislation will pro- going to sue just about anybody guns responsibly in this country. For hibit civil liability actions against the against whom they are able to conjure those who do not, I am for coming firearms industry for damages result- up a theory of liability, and hope that down very hard against them. For ing from the misuse of its products by some of the irresponsible judges in this those who misuse guns in the commis- others; that is, meritless lawsuits country will allow those cases to go to sion of crimes, you can’t get any based on lawful products that are in- the jury. Then on appeal, they hope ir- tougher on crimes than ORRIN HATCH tentionally misused are prohibited by responsible appellate lawyers and ac- is. Frankly, we passed legislation this bill. Now, anybody who thinks tivist judges, will ignore the law, ig- around here, anti-crime legislation, ought to agree with that. nore every basic instinct of the law, Senator BIDEN and myself and others, In product liability cases, plaintiffs and allow those lawsuits to go forward. that literally goes hard on those who traditionally have been able to sue for And they hope their friends on the Su- use and misuse weapons and use them compensation for injuries because, No. preme Court will ignore the law as well in criminal activity. That is what we 1, a product was defective; No. 2, the and through activism do whatever they should be doing. But we certainly defect posed an unreasonable danger to believe is right, as many of the judges ought not to allow spurious, frivolous the user; and No. 3, the defect caused on the Ninth Circuit Court of Appeals lawsuits brought against gun manufac- the injury. A ‘‘defective product’’ is do every day. They ignore the law com- turers who have done nothing wrong one that does not operate as a reason- pletely, do whatever their gut tells other than make guns the American able manufacturer would design and them ought to be done, even though people would like to own. make it, as a reasonable consumer most of the time their gut is filled with With that, I don’t mean to demean would expect, or as other products of legalistic ulcers. anybody on the floor. All I can say is its type. The fact is, that is not the way the that for the life of me, I can’t under- Courts uniformly have held that a de- law should run. That is not the way it stand why anybody would be against fect must exist in the product at the should operate. Lawyers should be this bill who understands the law and

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.083 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1569 understands the way the law should be As this bill was being written, many The Protection of Law Commerce in applied. Frankly, I am amazed that individuals raised concerns that the Arms Act, as amended by the Daschle- some are. There were 22 who voted bill failed to consider the many impor- Craig amendment, strikes a meaning- against cloture this morning. That was tant claims of victims of defective ful balance between the rights of legiti- unbelievable. The fact of the matter is, products or illegal actions. Because of mate business owners and the rights of cloture should have been invoked 100 to these concerns, I have worked with my individuals who have been injured by zip, but that is how far this issue has colleagues, Senator CRAIG in par- gun violence. The Senate achieves the denigrated, to the point where it is just ticular, Senator BAUCUS, and others to goal of protecting manufacturers from a political issue in the eyes of some. draft a commonsense, bipartisan illegitimate lawsuits, while maintain- It is time to get rid of the politics amendment that improves this legisla- ing the rights of victims to hold those and understand the American people tion by providing stronger protections responsible for their injuries account- are not going to put up with that kind for meritorious cases. This amendment able. of stuff, and they should not. The law is not perfect, but it goes a long way With the inclusion of our amend- should not be used in the frivolous toward balancing both the rights of ment, immunity will not cover a num- fashion some of these personal injury victims and the needs of the gun indus- ber of cases including those where a lawyers use it. There are a lot of great try. dealer sells a gun to someone who is personal injury lawyers out there and Our amendment makes several im- prohibited from owning a gun, whether there are a lot of great trial lawyers portant changes. First, the language in not they have been convicted of a who do what is right and who would the original bill forced plaintiffs to crime; a dealer sells a gun to a juvenile prove defendants knowingly and will- not think for a minute of bringing or to an undocumented alien; a manu- fully broke the law before a suit could these frivolous lawsuits against gun facturer develops a defective gun that proceed. This is a high standard that manufacturers who are not responsible injuries a child; or where a dealer fails would deny many victims the right to for the misuse of their weapons. When to report the theft of a gun as required pursue legitimate claims. The amend- they are irresponsibly brought, this by law. ment we now offer removes this lan- bill takes care of them. It says you are In each of these cases, a business guage, to ensure cases in which Federal going to pay for it. loses its immunity only as a result of or State firearms laws have been bro- But when they are not responsible for its own actions, not the actions of a ken can move forward without meeting the misuse of their weapons, why in third party. an artificially high threshold of proof. the world would we allow litigation to The cosponsors of this amendment be brought, just because the trial law- Second, as originally drafted, the bill created a few exceptions, where gun have worked hard to ensure that the yers might support us? There is a cer- gun immunity bill does not inadvert- tain point where any good thinking manufacturers’ and dealers’ immunity would not apply. These exceptions were ently harm important cases. person has to say: Look, the law is The principle of equality before the more important than just emotion. Un- tailored too narrowly. In fact, one of the exceptions could have invalidated law demands that everyone—individ- fortunately, most of the arguments uals and businesses alike—can be held used against this bill are emotional ar- cases in which an individual had sold a firearm to someone who committed a accountable for their actions. guments that really have no place in This legislation should not provide the area of law. Frankly, they should drug offense or violent crime simply because the individual had not yet been blanket immunity that protects ‘‘bad not be paid very much attention. actors.’’ By striking a more sensible I yield the floor. convicted of that offense. This amend- balance, my amendment strives to pre- Mr. REED. Mr. President, I suggest ment, our amendment, modifies this serve the long-term vitality of an im- the absence of a quorum. language to ensure these bad actors The PRESIDING OFFICER. The would not be protected from account- portant American industry, while pro- clerk will call the roll. ability merely because they were not tecting the rights and the safety of the The assistant Journal clerk pro- successfully prosecuted. American public. ceeded to call the roll. Third, when a gun is defective, the I hope my colleagues, when the legis- Mr. DASCHLE. Mr. President, I ask manufacturer should be held respon- lation is offered later, will support it. unanimous consent the order for the sible. However, as originally drafted, I yield the floor. quorum call be rescinded. the bill limited product liability to The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. Without such degree that it would be virtually ator from Idaho. objection, it is so ordered. The minor- impossible to bring cases against man- Mr. CRAIG. Mr. President, I thank ity leader is recognized. ufacturers. Our amendment provides Senator DASCHLE, our minority leader, Mr. DASCHLE. Mr. President, the greater protection for product liability the Senator from South Dakota, for legislation we consider today attempts cases, so, in particular, if a child is in- the cooperative way in which he has to strike a careful balance between the jured by a defective gun, the victim’s worked with us to, in his own words, safety of Americans and the rights of loved ones can hold those responsible improve, narrow, clean up this piece of gun manufacturers and dealers. As I accountable. legislation. have said on many occasions, the vast Fourth, the original legislation did As I have already said on the floor majority of gun owners, manufactur- not specifically address businesses that today, a good number of times, the ers, and sellers are honest and cer- sell to the straw purchasers; that is, Daschle amendment—the effort that S. tainly obey the law. Moreover, the fire- people who buy guns only to resell 1805 seeks to accomplish—is a very nar- arm industry is an important source of them in the black market to criminals row way of protecting law-abiding, le- jobs and tax revenue for our country. It or children. With this amendment, the gitimate firearm manufacturers and is wrong, and it is a misuse of the civil bill would include a provision to re- dealers, but not to stand in the way of justice system, to punish honest, law- move immunity from those dealers who access to the courts as a result of abiding people for the illegal acts of sell to so-called straw purchasers. somebody being harmed by somebody others. Fifth, the amendment Senator CRAIG who has acted illegally as a licensed At the same time, Americans who are and I will offer addresses concerns dealer or a firearms manufacturer. injured due to defective products have about this bill’s definition of trade as- I truly appreciate the Senator’s ef- a right to seek justice in the courts. In sociations. Many advocates indicated forts in behalf of this very small com- our efforts to protect the gun industry that, as drafted, even extremist organi- munity of folks in the industry of man- from meritless lawsuits, we should zations could have obtained immunity. ufacturing quality firearms. It is crit- take care not to invalidate legitimate Obviously, this is not the intent of the ical for our Nation, for law-abiding claims from being heard in court. bill’s sponsors, nor is it the intent of citizens, and for our national security. There are several ongoing cases that the gun industry. Therefore, we modi- The Senator has seen that and under- involve product defects or cases where fied the definition to ensure that only stood it, and we will work now to hope- manufacturers or gun dealers may ac- trade associations connected to the fully get this bill before us soon this tually have broken the law, and those business of manufacturing and selling afternoon so amendments can be of- victims have a right to be heard. firearms would be covered. fered. I think the Senator has been

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.085 S25PT1 S1570 CONGRESSIONAL RECORD — SENATE February 25, 2004 ready to do that. That will move us through lawsuits filed to force law- family and their property. That is what down the road toward hopefully final abiding businesses to pay for criminal the second amendment is all about. debate and a vote on this legislation. acts by individuals beyond their con- That is why this right is ingrained The PRESIDING OFFICER. The mi- trol. within the character and the culture of nority leader. The businesses I am talking about this country. The truth is, the intent of Mr. DASCHLE. Mr. President, I ap- are collectively known as the U.S. fire- the user, not the gun, is what deter- preciate the kind words of the Senator arms industry. The lawsuits I am talk- mines whether that gun will be used in from Idaho. I also share his view that ing about claim that even though these a crime. A gun can be nothing but a it is important we move to the bill so businesses complied with all of the piece of metal until it is used carefully we can begin entertaining amend- laws and sell a legitimate product, and wisely by an individual in defense ments. I think there are a number of they should be responsible for the mis- of themselves or in hunting by the ex- thoughtful amendments which deserve use or the illegal use of the firearm pertise of the shooter, or it can become our consideration. The sooner we move they produce, misused by a criminal. a very lethal weapon in the hands of a to the bill, the sooner we can begin the These actions are pursued with the in- criminal in the taking of a life. amendment process. Some will pass tent of driving this industry out of The trend of abusive litigation tar- and some will be defeated, but I think business—regardless of the thousands geting the firearms industry not only it is critical we get on with that debate of jobs that would be lost in the proc- defies common sense and concepts of and offering amendments today. It is 4 ess and the impact on citizens across fundamental fairness, but it would do o’clock. We have had a good debate the Nation who would never con- nothing to curb criminal gun violence. about the motion to proceed, and cer- template committing a crime with a Let me repeat that. Does it stop gun tainly about the bill itself. It is my gun. violence in this country? No, it does hope that not in the too distant fu- Let’s be very clear about this. These not. The only way you do that is to ture—sometime perhaps within the lawsuits are not brought by individuals sweep our country clean of the millions hour—we might move to allow floor seeking relief for injuries done to them of firearms that are owned out there, amendments. I would certainly be pre- by anyone in the industry. Instead, this and certainly take them out of the pared to offer mine at that time. is a politically inspired initiative try- hands of criminals. But we know that I yield the floor. ing to force social goals through an end is a near impossible task, too. Further- Mr. CRAIG. Mr. President, I suggest run around the Congress and the State more, the trend jeopardizes America’s the absence of a quorum. legislatures. constitutionally protected access to The PRESIDING OFFICER. The I believe that is worth repeating be- firearms for defense and other lawful clerk will call the roll. cause it is the essence of the legisla- uses. The assistant Journal clerk pro- tion. Instead, I believe these lawsuits The bill that more than half of the ceeded to call the roll. are politically inspired initiatives try- Senate has already endorsed is a meas- Mr. CRAIG. Mr. President, I ask ing to force social goals, or public pol- ured response that would put a stop to unanimous consent that the order for icy, if you will, through an end run this abusive trend without endangering the quorum call be rescinded. around the Congress and the State leg- legitimate claims of relief. Let me em- The PRESIDING OFFICER (Mr. islatures. phasize that it does not insulate the CORNYN). Without objection, it is so or- The theory on which these lawsuits firearms industry from lawsuits or de- dered. are based would be laughable if it were prive legitimate victims of their day in Mr. CRAIG. Mr. President, the lead- not so dangerous: To pin the responsi- court, as some critics have already ership of both sides of the aisle, at the bility for a criminal act on an innocent charged. moment, is working to try to see if we party who was not there and had noth- Nowhere in S. 1805 is there a padlock can gain a unanimous consent request ing to do with the act. They argue that on the courthouse door. Quite the op- that would bring us to the bill hope- merely by virtue of the fact that a gun posite. If this becomes law, this is the fully within the hour and possibly deal was present, those who were part of the law that will be argued in court by with one or two amendments, and at commercial distribution chain should some as to why a given lawsuit ought least one amendment voted up or down; be held responsible for the gun’s mis- to be thrown out. And we trust the and then the laying down of another use. judge, wise and learned, will listen to amendment at least this evening and Earlier today, I talked about all all of those arguments and make a de- starting debate on that. kinds of chains in commerce—auto- cision as to whether the lawsuit goes So I thought for a few moments I mobiles, and other vehicles, and other forward because it is legitimate within would give a little background as to tools that are used tragically enough the law or it is simply just that, frivo- what has brought us to this point in sometimes or misused in a way that lous, it is not legitimate within the time and S. 1805. they take a human life. What about a law, and it ought to be denied or cast Senator DASCHLE was in the Chamber baseball bat? We hear, every so often, aside. a few moments ago to visit with the of a baseball bat used in the commis- Again, let me emphasize, it does not Senate about his amendments and sion of a crime in which the baseball insulate the firearms industry from all what we effectively incorporated in the bat or the use of it struck a person and lawsuits or deprive legitimate victims bill. He has some fine-tuning he may killed them. Should we make a person of their day in court, as some critics offer as one of the first amendments who manufactured that baseball bat would, in fact, argue, and has been al- this evening. liable or should we do that which we ready argued several times on the floor But when Senator BAUCUS and I in- have always done in this country: made today. In fact, it specifically provides troduced S. 695 back in the spring, the individual responsible for his or her that some actions can be brought more than half of the Senate—Repub- action? against those in the business of manu- licans and Democrats—became original This is not a legal theory. It is just facturing and selling firearms when cosponsors. Today we have 55 cospon- the latest twist in the gun controller’s they violate the law or act wrongfully sors, including the leadership on both notion that it is the gun, and not the themselves. sides. A similar bill, H.R. 1036, was criminal, that causes the crime; it is Earlier today, I went through those passed in the House of Representatives the car, and not the drunk driver, that five areas that we have clearly identi- by a 2-to-1 margin over a year ago. kills the child it runs over. fied in the law where action can be Now we have before us S. 1805, again, The truth is, there are millions of taken. Senator DASCHLE has even re- very similar to what we did in 1995, but firearms in this country today. Yet fined that a little more to make sure with some adjustments made with the only a very tiny fraction of them are all is clear in this given area. Actions Senator from South Dakota. This is an ever used in the commission of a crime. based on breaches of contract, defects extraordinary showing of support for a The truth is, again and again law-abid- in firearms, negligent entrustment, bill. I believe it is a testament to the ing firearms owners are using their criminal behavior—these actions would gravity of the threat addressed by this guns, often without ever firing a shot, not be affected by this legislation. The legislation: The abuse of our courts to defend their life or the lives of their laws there are already clear. People are

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.087 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1571 being tried today in the courts based mate cause of the harm for which relief the Boone and Crockett Club; the on those laws, and S. 1805 in no way is sought. Buckmasters American Deer Founda- would wipe them aside or cause a dif- No. 4, the action for breach of con- tion; the Campfire Clubs of America; ferent action. tract or warranty in connection with Congressional Sportsmen’s Founda- S. 1805 is solely directed at stopping the purchase of the product. tion; Council of Wildlife Management frivolous politically driven legislation No. 5, an action for physical injury or and Education; Dallas Safari Club; against law-abiding individuals for the property damage resulting directly Foundation for North American Wild misbehavior of criminals over whom from a defect in the design or manufac- Sheep; Hunting and Shooting Sports they have no control. The courts of our turing of the product—in other words, Heritage Foundation; International As- Nation are supposed to be forums for product liability—when used as in- sociation of Fish and Wildlife Agencies; resolving controversies between citi- tended or in a manner that is reason- International Hunter Education Asso- zens and providing relief where war- able and foreseeable. ciation; Izaak Walton League of Amer- ranted, not a mechanism for achieving And then, as I mentioned, the ica; Mule Deer Foundation; National political ends that are rejected by the Daschle language amends the text to Rifle Association; National Shooting people’s representatives—the Congress permit suits against manufacturers or Sports Foundation; National Trappers or the State legislatures. dealers engaging in straw purchase Association; National Wild Turkey I believe that is the fundamental es- transactions. That is, when one indi- Federation; Pheasants Forever; Pope sence of 1805. It is direct. It is clearly vidual purchases a firearm on behalf of and Young Club; Quail Unlimited, to the point. It ought to be. I am a third party. Rocky Mountain Elk Foundation; pleased that 75 Members of the Senate Why did we spell these out? We want- Ruffed Grouse Society; Safari Club earlier today said let’s move this legis- ed the Senate and the citizens of our International; Texas Wildlife Associa- lation to the floor. Let’s begin the country to understand that this was tion; the Wildlife Society; U.S. Sports- process. Let’s vote up or down. Let’s not broad, nor was it sweeping. At the men’s Alliance; White Tail Unlimited; keep the bill clean and deal with this same time we wanted everyone to un- Wildlife Forever; Wildlife Management critical issue. derstand that what we were saying Institute; the Sports Fishing Associa- Once again, let me talk for a few mo- very clearly is something that has been tion of America; America Tort Reform ments about those exceptions we have said time and time again as it relates Association; National Association of carved out or defined within the law in to the value of this legislation; that is, Independent Insurers; National Alli- the bill to make sure there is no ques- the reenforcement of centuries of legal ance of American Insurers. tion. The key to S. 1805 is the defini- precedent based on individual responsi- Here is something I found most inter- tion of qualified civil liability action bility, not responsibility for actions of esting. We began to debate it on the which is addressed in the definitions third parties. In other words, if you floor today. Representatives from the section, section 4. I ask all of my col- manufacture a product legally in our International Association of Machin- leagues to go there and read it. It is a economy and it sells and someone mis- ists and Aerospace Workers of East simple bill, an easy bill to read, of 11 uses it and a life is taken with the mis- Alton, IL. Why? Because many of their pages. But we made sure that we clear- use of that product, should we be able members are employed in the Savage ly spelled out a qualified civil liability to come back through the court to the Arms Company in Westfield, MA, action, which is defined as a lawsuit person who produced it when they abid- where they have already lost some 340 brought by any person against a manu- ed by the law and in no way knew that jobs over the last few years because facturer or a seller of a qualified prod- the product would be used with the in- that arms company has been so weak- uct or a trade association for damages tent of harming someone? ened by some of these lawsuits. They resulting from the criminal or unlawful That is the basis of individual re- have had to pay out since 1999 over misuse of a qualified product by a per- sponsibility in our country and, as I $425,000 as the cost of being at court son or a third party. said, of centuries of legal precedent with some of these lawsuits. Section 4, subsection 5, the definition based on individual responsibility and They are obviously concerned about then excludes five categories of law- not the responsibility of the actions of their jobs. Somebody scoffed a bit this suits from coverage under 1805. In third parties. Many judges have al- afternoon that I am standing here talk- other words, we make very clear these ready rejected these suits that have ing about jobs, that this is some kind following areas: been brought. Antigun activists are of a jobs bill. It is just that. These in- No. 1, an action brought against a trying to distort tort law by creating dustries are at risk today. They are not transfer convicted under section 924(h) totally new and expansive theories of huge, deep-pocket industries. If we put of title 18 United States Code, or a liability to win restrictions that have every gun manufacturer in this coun- comparable or identical State felony been rejected in the legislative process. try all together, they would make up, law, by a party directly harmed by the The PRESIDING OFFICER. The Sen- in total assets, less than a Fortune 500 transferee’s conduct. In other words, il- ator’s time has expired. company. So they are extremely con- legal movement of the weapon itself. Mr. CRAIG. I ask unanimous consent cerned. An action brought against a seller— that I be yielded Senator NICKLES’ hour The aerospace workers in Waltham, this is the second one—for negligent under rule XXII. MA, in Chicopee, MA, along with West- entrustment of negligence per se. Neg- The PRESIDING OFFICER. Without field, MA, the United Mine Workers, ligent entrustment is defined in section objection, it is so ordered. again the United Steelworkers from 4, subsection 5(a), as the supplying of a Mr. CRAIG. Mr. President, I thank Gainseville, FL—all of them have spo- qualified product by a seller for use by Senator NICKLES for generously yield- ken to it. The United Auto Workers another person when the seller knows, ing me his hour. In a postcloture envi- have employees at the Colt plant in or should know, the person to whom ronment, the sponsors of the legisla- Newington, CT. Today they say, and I the product supplied is likely to, and tion are allowed 2, individual Senators read from their letter: does, use the product in a manner in- are allowed 1. I didn’t realize I had al- We have 383 members from the Colt work- volving unreasonable risk of physical ready spoken that much today. force. By comparison, about 5 years ago, we injury to the person and others. Misuse Having said what I have just said, I had over 600 Colt workers who were members of the firearm, knowing that is going hope I have laid a clear and unambig- of our local. Our members built the finest to happen. That is what Senator uous basis to why we are here today small arms in the world, including M–4 car- DASCHLE spoke to so clearly today in and why this legislation is sponsored bines, M–16 rifles, and M–203 grenade launch- his clarifying amendment. and supported by so many groups ers. The third item, an action in which a across the United States: the United Obviously, those are not civilian manufacturer or seller of a qualified States Chamber of Commerce; the weapons, they are military weapons. product knowingly and willfully vio- United Mine Workers of America; Na- Those are the kinds of tools that our lated a State and Federal statute appli- tional Association of Wholesaler Dis- men and women use in Iraq today in cable to the sale or marketing of the tributors—and the list goes on—the defense of themselves and in defense of product and the violation was a proxi- National Association of Manufacturers; our freedoms. Many of them provide

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.089 S25PT1 S1572 CONGRESSIONAL RECORD — SENATE February 25, 2004 the U.S. military and law enforcement. ference. One could almost say that a possibly go to an amendment tonight, Our law enforcement people carry, in vast majority of Americans agree with and then we will be back tomorrow for most instances, American firearms at the essence and the principles of S. the balance of at least Thursday deal- their side. 1805. I found that very interesting. ing with other critical votes on this Do we really want, by forcing these Interestingly, across the board, those issue. industries out of business, Chinese or most strongly opposed to these law- I yield the floor, and I suggest the ab- Yugoslavian or Hungarian firearms to suits against the firearms industry are sence of a quorum. be packed by our military? Some would currently members of the military and The PRESIDING OFFICER. The say: Senator CRAIG, you are just exag- their families. clerk will call the roll. gerating. No, I am not. If ever one of There has been a lot of talk about The assistant legislative clerk pro- these frivolous lawsuits would find root our military these days because we ceeded to call the roll. and grow, the kinds of millions of dol- have phenomenally brave men and Mr. REED. Madam President, I ask lars in potential settlement for an ar- women standing in harm’s way in Iraq, unanimous consent that the order for gument that a criminal act caused by a Afghanistan, and other parts of the the quorum call be rescinded. third party was ultimately the result world. Our military said: We oppose The PRESIDING OFFICER (Ms. COL- of an individual manufacturer who op- frivolous lawsuits of our gun manufac- LINS). Without objection, it is so or- erated in a legal way could easily put turers by 83 percent. That was a Zogby dered. Mr. REED. Madam President, I ask them out of business because they sim- poll taken earlier this year of 1,200 vot- unanimous consent, under rule XXII, ply do not have the kind of depth that, ers nationwide. So I find it interesting that Senator SARBANES’ hour be yield- for example, the tobacco industry had that opposition occurs to the very nar- ed to me as manager on the Demo- years ago when these kinds of lawsuits row approach we have taken when all cratic side. began to be won against that industry. of these large numbers begin to appear. The PRESIDING OFFICER. Without Others have been tried in a variety of Zogby also asked this question: objection, it is so ordered. industries, but there is a reality, and Which of the following two statements re- Mr. REED. Madam President, may I that is why unions are now stepping garding gun control comes closer to your inquire as to how much time is remain- forward as strong supporters of this opinion? Statement 1: There needs to be new ing overall? legislation saying: Wait a moment, and tougher gun law legislation to help in the fight against gun crime. Statement No. The PRESIDING OFFICER. The enough is enough. As long as our com- Chair informs the Senator that there panies are legal and responsible and 2: There are enough laws on the books. What are 241⁄2 hours remaining. producing quality products, leave us is needed is better enforcement of current laws regarding gun control. Mr. REED. Madam President, how alone, unless we act in a criminal fash- By a better than 2-to-1 margin, 66 to much time is reserved for the Demo- ion or in violation of Federal law in cratic side? this country. 31, voters nationwide agreed on state- ment 2; that is, there are enough laws The PRESIDING OFFICER. The Sen- I cannot blame them for asking it. I ator has 82 minutes remaining. believe they should ask it, and I believe on the books. What is needed is better enforcement of current laws regarding Mr. REED. I yield the floor, retaining we ought to grant that right. That is my time, and I suggest the absence of what S. 1805 does. gun control. Overwhelmingly, Americans are now a quorum. There are a good many issues we will The PRESIDING OFFICER. The speaking out very clearly on gun be discussing over the course of this de- clerk will call the roll. bate. My guess is there will be a vari- issues. They are also overwhelmingly The assistant bill clerk proceeded to ety of amendments offered. I find it in- speaking out against frivolous lawsuits call the roll. teresting that this debate gets us to of the kind that we have seen now Mr. BINGAMAN. Madam President, I where we are today. launched against this industry. Some ask unanimous consent that the order Let me cite something that is inter- 30-plus have been filed. Some are still for the quorum call be rescinded. esting, and I will bring some charts to pending. Some are on appeal. Some The PRESIDING OFFICER. Without the Chamber probably within the next have already been thrown out by objection, it is so ordered. day. Here is a question asked by the judges. Mr. BINGAMAN. Madam President, I political studies at Southern Methodist That is why we are here today. It is ask unanimous consent that I be al- University and the Zogby poll people in time that Congress stands up and lowed to speak for up to 15 minutes as examining the differences in thinking speaks to clarify and disallow the gam- in morning business. between people who lived in the States ing of the system, if you will, by some The PRESIDING OFFICER. Is there who voted for George Bush in 2000, the who want to line their pockets first objection? red States, and those who voted for Al and, oh, if there is a little bit left, Without objection, it is so ordered. Gore, the blue States. Think red and maybe the victim or at least the person The Senator is recognized. blue here for a moment. We all saw in the name the suit was brought would ADVANCED TECHNOLOGY PROGRAM those maps after the election, so we gain some benefit, but large compensa- Mr. BINGAMAN. Madam President, begin to think in reds and blues. tion to those who have a license to right before the last recess I came to Here was the question asked by the argue before the courts of the land. the floor to address the need for a revi- Zogby poll people. I don’t think you That is the reality of what we are deal- talized science and technology policy would call Zogby a conservative poll- ing with. in the country. One example that I ster. He is either center left or is cer- I close by saying that we do not gave of the current administration’s tainly viewed by most as not being block lawsuits that are responsible, inattention to science and technology conservative. Let me stop there. that are within the law as we see it and high-wage job creation was the Here is a question asked by the today and that we understand have a proposal in the budget that we received Zogby pollster: legitimacy because some manufacturer a couple weeks ago to eliminate the Do you agree or disagree that American or some dealer acted beyond and out- Advanced Technology Program, or firearm manufacturers who sell a legal prod- side the law in a criminal fashion that ATP, in the Department of Commerce. uct that is not defective should be allowed to causes us to suggest that their This is in the President’s fiscal year be sued if a criminal uses their product in a misaction means they ought to pay the 2005 budget request. crime? price for that misaction because some- In my view—as I stated it then; and The answer came back showing a one else paid dearly by the use of that I want to repeat it now—eliminating phenomenal result. Opposition in the firearm. the Advanced Technology Program States that voted for President Bush, Those are the fundamental issues be- makes no sense. Even the administra- the red States, was 74 percent. In other fore us in this debate, and I think it is tion’s own budget justification, which words, 74 percent said that gun manu- important we have these votes. I hope clearly praises the program, makes facturers that operate in legal ways within the next few minutes or within clear that the program is valuable. ought to be protected. And in Al Gore the hour we will have an agreement The Advanced Technology Program States, 72 percent, a 2-percent dif- that allows us to move forward and has been a constant target over the

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.092 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1573 years of those who would like to kill generally and to our national economy domestic producers stem the loss of the program for philosophical reasons. far outweigh the costs of developing market share to offshore manufactur- But I believe those of us in Congress such technologies. ers. need to make decisions about Federal In the case of defense technologies, The Advanced Technology Program programs on a logical basis and on the the Federal Government is the ulti- has also been called the godfather of basis of the good that those programs mate customer, and programs such as the DNA diagnostic tool industry. That are doing for the people we represent. the Defense Advanced Research is another example which clearly my So I believe we should examine the Projects Agency—the work that they colleagues should look into before they Advanced Technology Program by ask- fund in DARPA in the Defense Depart- follow the administration’s rec- ing two fundamental questions. First, ment—plays an important partnering ommendation and try to terminate this should our Government be sponsoring role with defense contractors and high- program. an Advanced Technology Program at technology firms. The Advanced Technology Program all? And second, is the Advanced Tech- But for technologies with predomi- was making investments in nology Program we are talking about nantly civilian applications, the Fed- nanotechnology long before it became an effective program for advancing eral Government does not have the a household word, along with invest- technology development in our coun- strong customer stake in developing ments in homeland security and bring- try? specific technologies. So filling in this ing fuel cells and solar cells and micro- In discussing the need for a Govern- funding gap in the ‘‘Valley of Death’’ is turbines to the marketplace. In 2003, ment role, a basic principle with which precisely the role that the Advanced the White House sponsored a fuel cell nearly everyone would agree is that a Technology Program plays for civilian demonstration and the President test- Government role makes sense when technology. ed a long-life mobile phone. Let me put another chart up here. You might rec- there is a market failure of some sort. That brings me to the second ques- ognize this photo. The President was When it comes to advanced technology, tion that I outlined earlier. That is, is testing a long-life mobile phone pow- there is ample empirical evidence of a this advanced technology program an ered by advanced fuel cell technology. critical gap between the point at which effective program for promoting these Without the Advanced Technology Pro- Federal support for basic research ends new platform technologies? Some in gram, MTI microfuel cells would not and the point at which private capital the Congress have reacted over the years to the ATP as if it were some have been able to develop this break- market support of product develop- through technology to power this very sort of Federal program to help Gil- ment begins. phone. So that is another example. Now, let me try to illustrate that by lette make a five-bladed razor or to As I have tried to make amply clear, referencing this chart. This chart is help Microsoft write Windows 2006. there are many examples of ATP suc- called the ‘‘Valley of Death’’ just to This is not an accurate description of cesses. There are certainly also other try to wake up my colleagues to the the ATP by any stretch. examples where ATP projects have not Let me give a few examples of actual fact that this is an important issue. been successful. That is the nature of a ways in which the Advanced Tech- Here, looking at this vertical axis, we high-risk, high-payoff research pro- nology Program has succeeded in are showing the invested money. Along gram. But let’s put the successes and the horizontal axis, we are showing the bridging the ‘‘Valley of Death’’ for U.S. the failures in the overall context. various stages of developing a tech- industries with a resulting positive im- The total cost of ATP funding to date nology-based product for use. pact on our economy and our global has been about $2.1 billion. That is over The Government does invest a fair competitiveness. the life of that program. All told, the amount of money in basic research. In 1991, the Council on Competitive- preliminary results of a 2003 ATP sur- That is shown over here at the left, in ness characterized the U.S. printed wir- vey of over 350 companies indicates the the beginning stages of developing a ing board industry as losing badly or actual economic value resulting from product or developing a technology. lost. That was their description. By ATP joint ventures exceeds $7.5 billion. Here we show labs and universities. this they meant the U.S. was not likely The benefits from just a few projects Our Federal Government does invest a to have a presence in that industry analyzed to date are projected to ex- substantial amount in that area, and within 5 years. It attracted little pri- ceed $17 billion, when those platform that is certainly commendable. Of vate venture funding. Only a handful of technologies are fully exploited by the course, many of my colleagues would the 700 firms in the industry had the industries involved. argue that we do not invest enough capability to undertake advanced re- ATP has also been the subject of a re- there, and I would agree with that, but search. Through the ATP, a new joint cent overall assessment by the Na- that is a subject for another day. venture between the printed wiring tional Academies of Science and Engi- Industry invests most of its research board industry as a whole and the Gov- neering, and the core conclusions of and development dollars at the other ernment was formed that would not this 2001 study speak strongly both to end of this development continuum and have occurred otherwise. The new man- the success of the program and to the invests those funds on commercializing ufacturing technologies that were de- generic focus of the program. The na- short-term, low-risk, reliably profit- veloped in the joint venture yielded an tional academies concluded the ATP able products, and then making incre- estimated cost savings for industry in was an effective partnership program mental improvements on those prod- excess of $35 million. at the generic technology level. The ucts which they are fairly confident Another example: In the past, U.S. academies specifically found the selec- they can make a return on in the mar- car makers tolerated dimensional vari- tion criteria applied by the ATP en- ket. ations of up to 5 or 6 millimeters. That abled it to meet broad national needs In between these two stages of the re- is a level that often complicated the and to help ensure the benefits of suc- search and development process, we assembly process. It required custom cessful awards extend across firms and have what many in the industry call manual reworking, and compromised industries. The national academies the ‘‘Valley of Death.’’ That is the gap vehicle fit and finish, as it was referred have also found the ATP peer review of where our private capital markets fail to in the industry. An advanced tech- applicants for both technical feasi- to invest applied research dollars to nology project was put together with bility and commercial potential was ef- create preproduct, so-called platform the U.S. auto industry, reducing this fective in targeting promising new technologies. This market failure oc- variation to less than 2.5 millimeters technologies that were unlikely to curs because such generic technologies by inventing an array of new tech- have been funded through the normal are too expensive or they are too risky nologies. This one project is credited operation of the capital markets. for industry to develop on its own. with increasing the U.S. gross domestic I could go on and on about the con- At the same time, it is precisely product by over $200 million and cre- clusions of the national academies these generic, platform technologies ating 1,400 jobs. In short, empirical re- study. Let me just say the reality is in- that are the seed corn for new prod- search demonstrates this project dustry will not fill the void the Presi- ucts, and in many cases new market helped increase the demand for domes- dent would create if his budget pro- categories. The benefits to industry tically produced vehicles and helped posal to kill this Advanced Technology

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.095 S25PT1 S1574 CONGRESSIONAL RECORD — SENATE February 25, 2004 Program were agreed to. Given indus- but I didn’t check on the process. XM–15. That is the weapon he and John try’s increased emphasis on short-term Reckless behavior could be deliberate. Muhammad used to murder and injure applied R&D and consequently reduced There could be reckless behavior in the their victims. emphasis on early phase technology re- manufacture, sale, or distribution of I ask my colleagues to take a look. search, the elimination of the Ad- guns. No matter how destructive the How could he get behind the counter, vanced Technology Program would result is to life and limb of innocent walk out with a weapon, and not be no- simply trigger the further erosion of people, the victims of that conduct ticed? It was captured on film, but they U.S. technology leadership and lead to cannot hold you accountable. It just didn’t see it. What an odd coincidence even greater loss of high-technology, does not make sense. that is. high-wage jobs in the future. We hear this claim from our friends It is outrageous. It is an insult to the I would like to end with a quote from on the other side about ‘‘frivolous law- intelligence of anyone who looks at David Morgenthaler, former president suits’’ is how they describe it. Frivo- this picture to know this weapon could of the National Venture Capital Asso- lous lawsuits—lawsuits that, frankly, not have disappeared without being no- ciation. The members of the National are far from frivolous because the dam- ticed. Look at the size of it. It tells the Venture Capital Association account age is beyond description when a fam- story. But then I guess what is being for around 80 percent of the venture in- ily loses a child, a father, a brother, a asked for is sympathy for this gun vestment taking place in the United mother, or a sister, or some child is shop, this place that let the murder States today. David Morgenthaler says: permanently injured and cannot func- weapon out of its sight and into the It does seem that early stage help by the tion normally. Frivolous? I don’t call hands of these madmen who shot peo- government in developing platform tech- that frivolous. These are valid claims ple at random. nologies and financing scientific discoveries of wrongdoing by an industry that puts Let them get away with that, with no is directed exactly at the areas where insti- profit ahead of human life, and we repercussion, no lawsuits: You injured tutional venture capitalists cannot and will can’t let them go without consequence. my child, you injured my husband, you not go. Let us ask the gun victims if their injured my wife? People were shot sit- When experts in venture capital and lawsuits are frivolous. Ask those who ting alongside their mates, and we leaders in industry and our National have lost loved ones at the hands of the want to protect them? What do we Academies of Science and Engineering DC area snipers just over a year ago. have to protect them for? I don’t un- all agree the Advanced Technology And talking about the DC snipers, they derstand it. Program plays a unique and valuable were prohibited by law from buying To me there is an element of curi- role in supporting our high technology guns. Under law, they could not sell osity here that just does not register. I competitiveness, we ought to pay at- guns to Lee Malvo. He walked into a don’t understand the wailing and weep- tention. gun shop and walked out with a sniper ing about how to protect these guys, I hope all my colleagues will join me rifle. A sniper rifle is a pretty big piece these dispensers of murder. It is awful. in resisting the unwise proposal which of equipment. Yet we hear the case: Gee whiz, if you we have been given by the President to I invite my colleagues to look at this had an automobile and a drunk driver terminate the Advanced Technology image. This chart says they lost 237 drove it and killed somebody, why Program. ATP has demonstrably con- guns; 237 guns for which they have no should the automobile company be re- tributed to maintaining our manufac- responsibility to account. They said: sponsible? We saw that once. turing strength. A strong and well- Gee whiz, how do you like that, we lost Ford Motor Company made the funded Advanced Technology Program all these lethal weapons that may have Pinto. When it was struck from the will help the United States remain just kind of walked out or fallen down rear, it would catch fire. We had people competitive in high tech manufac- a crack in the floor someplace. It is testify. They were so disfigured, it was turing in the future. Instead of ending outrageous—including one of those painful to look at them. Imagine what this program, we should look for ways weapons that wound up in the hands of it felt like to be one of them—so dis- to duplicate its strengths in other ci- those who committed these atrocities, figured. vilian technology areas such as energy Lee Malvo and John Muhammad. They went to the Ford Motor Com- and environment and homeland de- This is a picture of a gun shop that pany and said: Change the design. Ford fense. has become all too familiar. It is called had a board meeting supposedly in I yield the floor. the Bull’s Eye Shooter Supply. They which they said: Change the design? Do The PRESIDING OFFICER. The Sen- lost the guns. you know what that is going to cost ator from New Jersey. In the wake of the sniper case, we us? The heck with it. Let’s pay the Mr. LAUTENBERG. Madam Presi- now know that in addition to losing damages that come from lawsuits. dent, returning to the gun immunity hundreds of guns from their inventory, That is the way it goes sometimes. bill that is being presented, this is leg- this gun shop cannot locate the fire- The automobile is not intended to be islation that is being bullied through arms sales records they are required by a lethal weapon, and we lose a lot more the Congress. law to keep to help police solve crimes. from fewer of these gun manufacturers I have been here a long time, now Those records that were recovered every year than we do manufacturers going into my 20th year. This is one of showed that Bull’s Eye frequently sold of cars. We lose over 28,000 people a the most outrageous pieces of legisla- numerous guns to individual buyers, a year, 11,000 of them homicides, the rest tion I have ever seen. We have never sure sign of phony straw purchases. suicides, accidents. That is what hap- seen such a complete sellout. This is But obviously this rogue gun store pens. We have millions of cars on the like a fire sale to a special interest looked the other way. road, and we do not have much more of lobby. According to ATF records, between a mortality rate with those cars than The bill is absolutely a free pass. It 1997 and 2001, guns sold by Bull’s Eye we have with these weapons. But we do says to the gun industry: Do anything were involved in at least 52 crimes, in- not try to protect the automobile in- you want, and you have no one who can cluding homicides, kidnappings, and dustry. punish you by going to our court sys- assaults. Guns in 52 crimes were traced We do not try to protect the aviation tem, established effectively by our back to this one gunshop. industry if there is negligence in an air Constitution. They can do whatever Under this gun immunity bill, Bull’s crash. You can bet people have a right they want, no matter how negligent, Eye gets a free pass. They would not be and do take advantage of the right to reckless, or irresponsible. accountable to victims of their neg- get some redress. They don’t want the Of all the people in society to provide ligence, and it is a despicable proposal. money, for gosh sakes. They do not special protections to, why in the DC sniper Lee Malvo could not have want any other families to have to suf- world would we give immunity from re- legally purchased a Bushmaster assault fer the same humiliating loss they ex- dress to this industry? weapon from Bull’s Eye. He was too perienced. This immunity bill says even reck- young. But he walked into the Bull’s If anyone proposed that we go ahead less behavior—forget about negligence. Eye store in broad daylight and walked and say to the airlines: Look, tell you Negligence says I didn’t mean to do it, out in a short time with a Bushmaster what, for reckless behavior and one of

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.098 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1575 those planes goes down with 200, 400 arms for the military and we can make a mistake. It just is not true. Bull’s people on it, we know you really didn’t sure they are under better care than we Eye took advantage of the weak gun intend to do that, so, therefore, you see now. dealer laws and merely transferred its ought to be excused. We are not going The snipers who did the killing license. They are very much in busi- to excuse them, and we should not ex- wreaked havoc on our society and now ness. My staff called Bull’s Eye today cuse the gun industry, the people who we want to reward the gun dealer re- and they said they are open until 7 manufacture these weapons in any sponsible for illegally giving them p.m. It does not sound to me as though form, any shape, disguises for assault their killing weapon with immunity they are closed. So if someone from the weapons that say this really isn’t an from civil lawsuits. This is absurd. Senate wants to make a quick trip over assault weapon. It passes the specifica- This Senate is about to make these there today to pick up an assault weap- tions test, except if you make an ad- sniper victims and their families vic- on, they have until 7 Pacific time to do justment here in the cartridge carrier tims a second time. After all they have so. or there, it becomes, effectively, an as- gone through and that they are going There are a host of other cases that sault weapon. No, we are saying, no, we through, we are going to pass a bill to would be affected if this bill is passed. are not going to punish you for that. take away their fundamental legal Supporters of this bill will be tram- Go ahead, be careful because people rights. It is reprehensible. There are so pling the rights of innocent victims may not like you, but we are not going many other people who are going to be who only want their day in court, to to punish you for it. denied justice by this bill. which I think they are entitled. That is the situation in which we I want to take a moment to tell the The supporters of this bill claim the find ourselves. Senate about two brave police officers, lawsuits against the gun industry are Do we really believe that in this situ- one of whom I mentioned earlier, who frivolous. Frivolous? Ask Denise John- ation these weapons were lost or stolen are going to be victimized by this bill, son whether her lawsuit is frivolous. from this store? It is ludicrous. So we Ken McGuire and David Lemongello. She lost her husband at the hands of should not pretend we do not know They are two police officers from Or- the DC area snipers. On the morning of what really happened. What we are ange, NJ, who were shot and seriously October 22, 2002, Denise Johnson said doing is closing our eyes to responsible wounded by a criminal who obtained goodbye to her husband Conrad with behavior throughout our Nation. It is his gun through the negligence of a gun her usual ‘‘be careful.’’ Neither he nor obvious they sold the Bushmaster to manufacturer and gun dealer in the her children had any idea this would be Malvo under the table, or however he State of West Virginia. The criminal their last words to their husband and got it. It is a pathetic and irresponsible who shot them was barred from legally father. recognition we are giving these people. buying guns, but he was able to obtain This 35-year-old bus driver was shot Should Bull’s Eye be held account- these weapons from a straw purchaser on October 22 in Silver Spring, MD. He able for their outrageous actions that who was sold 12 guns by a West Vir- was standing at the top step of his resulted in the death of innocent peo- ginia gun dealer in a single trans- empty bus when he was hit. He was ple? The sponsors of this bill say, no, action. killed instantly by the Bushmaster they should not pay for approximately This gun dealer completed the sales portrayed here that Bull’s Eye ‘‘lost’’ a dozen deaths. The sponsors of this in spite of the obvious signs that the to Lee Malvo. bill say, no, this outlet should not be purchaser was not buying the guns for Some have the impression it is only punished for murder; that, after all, himself. The gun dealer admitted he the DC sniper victims and Officers they are okay. They sell things that was suspicious of the transaction but McGuire and Lemongello from New kill people or close their eyes to the turned the other way. Then less than 6 Jersey who would have lawsuits distribution of weapons. months later, Officers McGuire and blocked by this bill. Unfortunately, The sponsors of this bill say, no, if Lemongello were shot by one of those there are many other victims of gun vi- one is negligent, they cannot be held weapons. olence with valid cases who would have accountable. It says if they are reck- Is the police officers’ lawsuit against their suits dismissed. I ask the spon- less, they cannot be held accountable. the gun dealer frivolous? A West Vir- sors why do they want to do that? The bottom line is there are many ginia judge ruled the officers’ claims Why? Loss of a family member? Per- victims with valid legal claims who are supported by West Virginia neg- haps it is the principal breadwinner in will have their lawsuits wiped out. It is ligence and public nuisance law and the family. Should we have the family outrageous. that the officers’ case should proceed suffer from now newly found poverty Today we were visited by a police- against the dealer as well as the manu- and doing without the capacity to pay man from my home State, the town of facturer of the gun who imposed no re- the rent, perhaps be evicted from their Orange, NJ. He was shot in an ex- quirements on its dealers to cut large homes? Why do we want to punish change of fire with an assailant. He has volume sales. them a second time? Was it not enough a lawsuit in place. He can no longer If this gun immunity bill is passed, they suffered like that the first time? work at his job. We are saying, too bad. the rights of these two brave police of- We want to cut away from them their Why were you standing in the way of ficers are abolished. To make matters right to have redress for what took that bullet when it came? Essentially worse, it will allow other gun dealers place. that is what we are saying: Why did to look the other way and complete There is Tenille Jefferson. Her 7- you get in the way of the guy who was suspicious sales because, well, there year-old son was killed by another going to pull the trigger? You should are not any consequences; we cannot be child with a .44 caliber rifle. This trag- not have done that. They should not be sued for our negligence. ic shooting occurred because the gun punished for their complicity by get- I want my colleagues to know Officer ended up in the streets after being neg- ting a gun for this would-be murderer. Ken McGuire is in the Capitol today. ligently sold through a gun dealer to This bill before us tells Bull’s Eye He is here to ask Senators not to take an illegal drug user and gun trafficker. and their cronies in the business, keep his rights away, and I ask my col- Then there is Sherilyn Byrdsong who up the good work; do not worry about leagues to give him a moment of their lost her husband, former college bas- it; in the Senate, we are going to take time if he approaches you. ketball coach Rick Byrdsong, when he care of you. We are going to immunize These lawsuits are the only real way was shot and killed as he walked with them from wrongdoing. to hold these rogue dealers accountable their children in Evanston, IL. The Why on God’s Earth do they want to because current laws regulating dealers crime was committed by a white su- immunize these people? I do not under- are a joke. The ATF is restricted to premacist, Benjamin Smith, who tar- stand it. I have seen pretenses at logic only one announced inspection per geted minorities in a shooting spree that said, well, we will have no gun in- year. through Illinois and Indiana. Even dustry to supply our Army. Baloney. In reference to Bull’s Eye, I heard the though Smith was prohibited from buy- Everybody knows that is a phony argu- Senator from Idaho say the shop is ing guns, he was able to obtain a gun ment. They will get their weapons shut down now. He is very careful with because of the actions of a reckless gun made. We can protect those who make the things he said, but I think he made dealer.

VerDate jul 14 2003 02:35 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.100 S25PT1 S1576 CONGRESSIONAL RECORD — SENATE February 25, 2004 This reckless dealer sold one gun ety? Why would we want to send a mes- This is ridiculous. Unfortunately, it trafficker over 70 handguns in less than sage that says: Circumvent the law, is not about common sense but, rather, 2 years, almost all of them Saturday put our families in danger, and we are it is about dollars and cents. It is about night specials, commonly used by going to protect you? political support on the outside. It is criminals. Mrs. Byrdsong’s lawsuit is The reality is that the gun industry about nasty mail campaigns. It is pending in a State court in Chicago. engages frequently in improper con- about the deterioration of common Other victims of this same shooter duct with deadly consequences. We sense and collegiality. It says: Look, I have joined the lawsuit. If this bill have seen many examples of this. Cor- don’t owe my constituents all that. passes, their lawsuits are wiped out. I rupt dealers who frequently sell to What I do owe is I owe some special in- cannot understand why we would want criminals would be immune. Straw pur- terest friends of mine who helped au- to do that in this, the Capitol of this chasers who work with rogue gun deal- thor the legislation in the House that Government of our great country. I ers to obtain guns for people who are applies to this. We know the role that can’t understand why we are bent on not eligible to buy guns would be im- the NRA plays in financing political taking away people’s rights and mak- mune. Dealers who engage in large vol- campaigns. It seems as if it is paying ing them suffer because of a special in- ume sales, such as the Illinois dealer off for them right now. terest group that has a special reach to who sold 60 Saturday night special Thankfully, there are still people those in this Senate and the House who handguns to one customer, would be here who see their responsibility dif- say: We have to take care of this indus- immune. ferently, who will stand up for prin- try. This is an essential industry. We And, of course, there is the problem ciple, who will do all they can to pre- want this. Maybe we can build this into of gun shows, where criminals and ter- vent this unconscionable piece of legis- a major industry, make it bigger than rorists can buy guns without back- lation from passing. We have friends on it is, sell more guns. ground checks. both sides of the aisle, Democrats and As many here know, the Senate That is hardly a way to see a produc- Republicans. This isn’t the special passed my gun show amendment with tive existence in a society that essen- property, the unique property of Re- the help of Vice President Gore, a 50–50 tially has respect for the law. publicans. It is people who are not tie in 1999. But the House Republicans The Reverend Stephen Anderson, a looking clearly at the problem, who are killed the provision in conference. minister shot during this spree I was not willing to say: Hey, I can catch a They were not willing to shut down talking about, on his way to join his little abuse from the NRA and its dealers who are not required to get any family in a Fourth of July celebration, membership and its friends. data about a purchaser—no names, no would have his lawsuit dismissed. Ste- I took a lot of it in my previous term addresses, no pictures, nothing, not ven Kuo, a graduate student at the in the Senate. But we did take gun per- even a fingerprint. University of Illinois, would have his If the NRA immunity bill is signed mits away from spousal abusers. Some rights taken away. Hillel Goldstein, into law—and I call it the NRA immu- 40-plus thousand were denied gun per- one of several Orthodox Jews shot nity bill deliberately because that is mits because of a piece of legislation when walking home from temple serv- who we are servicing today. We are not we passed. Does anybody regret that ices, would have his family’s lawsuit servicing this list of people who had fact? I wonder, if we asked the ques- terminated. the punishment we have seen, punish- tion, do you, sir/ma’am, regret the fact There are other cases that would be ment that should never be permitted to that we have taken away those permits dismissed—the parents of 15-year-old be put upon a family, a loss of a child, from those spousal abusers, permission Kenzo Dix, who was shot and killed un- a loss of a husband, a loss of a wife or to buy guns, permits. intentionally by a 14-year-old friend mother. We should not do that. But if I wonder if you feel badly about that, because the gun lacked well-known the NRA immunity bill is signed into and about other things that try to curb safety features. The boy thought his fa- law, victims of industry recklessness gun violence. ther’s pistol was unloaded as he had will be denied their day in court. This bill takes away a critical tool in emptied the magazine. Had the gun in- It doesn’t make sense. It doesn’t the fight to eliminate gun violence. It cluded an indicator that alerted him make sense to me, and I am sure it is comparable, in my view, to taking that a round was in the chamber, or an doesn’t make sense to people across the away medication from doctors trying integral lock that would have pre- country. And I hope they are listening. to treat a deadly disease, perhaps to vented him from firing, Kenzo would People across the country have to un- prevent death, or immobility, or men- not have been killed. But Kenzo’s par- derstand what we are doing. We are tal fatigue in a person without proper ents’ case would be terminated by this protecting an industry that provided medication. Why do we not want to bill. the murder weapon to kill lots of peo- prevent the possibility that someone The family of Joan Moore, who was ple. Why in the world do we want to can be permanently injured or inca- shot and killed by a mentally deranged protect those people? If your behavior pacitated? man in the town of Belle, WV, would is bad, no matter what the product is, What are the symptoms of this dis- have their suit dismissed. Her family if it is a toy, if it is a crib or otherwise, ease? In the year 2000, there were more brought suit for negligence against the and it is made improperly, you pay a than 28,000 firearm-related deaths in gun dealer who sold a 9 mm rifle to price for it. I come from a State where the United States. About 11,000 were Moore’s killer, 18-year-old Robert pharmaceutical manufacturers are a homicides. These deaths and injuries Copen. Mr. Copen stood in the gun giant industry. Let a pharmaceutical cost an estimated $2.3 billion a year in shop’s parking lot all day in plain manufacturer put the wrong ingredient lifetime medical expenses alone, much sight, smoking marijuana before he en- in the capsule which hurts somebody’s of which is borne by the U.S. taxpayer. tered the store. He apparently acted so health, they go to court. They are very The total societal cost of firearms is oddly while in the store that an em- conscious of that. They are very much much higher—an estimated $100 billion ployee asked his supervisor if Copen afraid of the repercussions of a lawsuit. a year—and the cost to families cannot should be trusted with a gun. Manage- That is what makes people pay atten- be measured. ment told the employee to go ahead tion. It does it in that industry. It does But we know this: The bill on the and make the sale anyway. it in all other industries. floor today is a direct attack on people This gun dealer was clearly neg- But we want to exempt this one in- who have already suffered a tragedy. ligent. But Mrs. Moore’s family would dustry for their noble behavior, for This bill is an embarrassment to the lose their rights under this bill. their concern for human life, for their Senate, to our Government, and our This Senate looks as if it wants to concern for jobs, I heard earlier. The Nation, and it ought not to be per- administer a second punishment be- Senator from Illinois scoffed at it and mitted to go forward. cause the first punishment was not se- said: Oh, I didn’t know we were talking I ask my colleagues one thing. Before vere enough. It is shocking to believe about a jobs bill. you cast your vote on this bill, spend a this could take place. Why don’t we make hand grenades second thinking about a child’s face Since when is Congress in the busi- and distribute them freely? You could who learns that daddy is dead, or about ness of rewarding the worst in our soci- get people to do that. a father’s face when he learns that his

VerDate jul 14 2003 02:46 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.103 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1577 child is dead—killed not by nature or I have to use factual statements given would not protect him nor does this something that perhaps could not be by, in this case, a man who has been bill protect him from that law. prevented. Much of this can be pre- apprehended and we now believe by all I yield the floor. vented. Think about these victims. evidence committed that tremendously Mr. REED. Mr. President, we have Give them their fair consideration be- tragic crime and was one of the Dis- heard a lot today about the exceptions fore you victimize them once again. trict of Columbia snipers. That is the contained in that bill which, arguably, I hate to think that this wonderful reality. I believe those are the facts. I might result in liability to someone body in which I am privileged to serve believe them to be honest and straight- such as the dealer in the Bull’s Eye would want to inflict punishment on forward facts. Shooting Gallery store but legal anal- those who have already suffered so I would be happy to yield to the Sen- ysis by eminent attorneys suggests deeply, or who will suffer so deeply by ator. they would not apply to that particular protecting those scoundrels who break Mr. LAUTENBERG. I thank the Sen- case. the rules with reckless behavior. Imag- ator from Idaho. Mr. LAUTENBERG. Mr. President, I ine what is being said—that even if you One thing I know is that we often wonder if I could ask the distinguished are reckless, you are going to be immu- disagree, but I would never accuse him Senator a question. nized by this legislation. Negligence is of these statements. He is an honorable Mr. REED. Yes. bad; reckless is unacceptable under any man. We have our differences on things Mr. LAUTENBERG. I believe the condition. that we ought to be putting into law. Senator has examined the opinion of- I hope I am talking for the majority But I would like, if I may, to correct fered by Mr. Lloyd Cutler and others. of those so we can get a vote against my friend’s impression because not Is it not their opinion that these law- this bill. only was there a phone which was an- suits would be obstructed from pro- I yield the floor. swered but the now owner of the li- ceeding as a result of this law being The PRESIDING OFFICER (Mr. AL- cense is a good friend of the former put in place? EXANDER). The Senator from Idaho. owner. Mr. REED. The Senator is accurate. Mr. CRAIG. Mr. President, we are If one looks at the pictures that we The analysis by eminent attorneys hoping in a few moments that we displayed, the weapon used was a pret- looking at this legislation, looking at might have a unanimous consent re- ty sizable piece of equipment. As I re- the exemptions, suggests in the case of quest to allow us to get to this bill. member from what I saw on the film Bull’s Eye that this dealer would not I will respond only briefly to the Sen- shown on television, there was evi- be subject to liability; he would be im- ator from New Jersey and his com- dence that this Lee Malvo was carrying munized from liability because of this ments because he did suggest that I a weapon out of that store. The camera particular bill. had implied something that is not fact saw it. Certainly it could have been This is a situation that has to be on the floor of the Senate today. I want negligence. It could have been reckless made very clear to people. We are es- to make sure the record is clear be- or maybe the gun was paid for by a sentially giving this individual an op- cause I don’t want in any way to mis- friend, and with the wink of the eye, portunity to walk away from serious lead any of my colleagues. out it went. But to give this criminal negligence. I don’t think it is appro- I said that the Bull’s Eye gun store credit for telling the truth is some- priate. In fact, I think it is unconscion- was closed. It, in fact, did close. The li- thing that I— able. cense of the dealer at the time the Mr. CRAIG. I did yield for the sake of There is a factual discussion about weapon was stolen was jerked. He could a question and not a comment. I would the status of the Bull’s Eye Shooting no longer conduct the business. He sold like to reclaim the floor. Gallery. My understanding is—and it is the business to a new licensed dealer. Mr. LAUTENBERG. The Senator is close, I think, to that of the Senator What the Senator from New Jersey absolutely right. My question was, Did from Idaho with additional detail—as I failed to recognize is that licenses the Senator know that the new owner understand it, the individual who was aren’t given to locations; they are of the license was the friend of the in fact the owner-operator, Brian given to individuals, and those individ- former owner? Borgelt, had his license revoked. He is uals must qualify. A condition of the Mr. CRAIG. I didn’t inquire about appealing that revocation in court. new license also was all new personnel friendships or relationships. I inquired That is his right. He somehow trans- in the gunshop. about the legality of the license that ferred ownership of the store to some- The Senator is accurate in sug- operates the store, and whether the one we have been informed is a friend, gesting that he might have called store is still in business, and whether a colleague, which is also permissible today and the gunshop is open under the owner who is alleged to have mis- under the law. It appears, though, that new management and new license and handled records owns it today; does he Mr. Borgelt is operating a shooting gal- new people. The person who I said this operate it. The answer is no. lery in the same building, but it does morning had lost his license because Let me also add that I appreciate the look as if this might be an entirely BATF had jerked it and he had to close Senator’s logic about the stealing of a legal transaction. his business is, in fact, a legitimate weapon. Automobiles are stolen from The point was raised earlier, and and valid statement. That did happen. automobile lots and the thieves are Senator LAUTENBERG and I have tried It is also my understanding that the caught on camera. The last I checked, to clarify, at least there was an impres- criminal investigation is now under- an automobile is substantially larger sion this store was closed, out of busi- way, and that BATF is recommending than a rifle. Is it possible that Lee ness, and not operating. The agreement to Justice that they file felony charges Malvo picked up a gun and walked out and the factual accuracy as of this against this particular dealer. I do not of the store? He says he did. He says he point that we both share is the store is know anything more about the facts. did. He stole the weapon. operating. The individual who owned it But I do know one thing. I am not going to in any way attempt is no longer operating it because his li- Mr. LAUTENBERG. Will the Senator to defend the man who once owned the cense has been revoked and he is chal- yield for a question? Bull’s Eye gunshop. He may be indefen- lenging the revocation. Mr. CRAIG. Let me complete this sible. He may have violated the law. If Mr. CRAIG. If the Senator will yield, thought, and I would be happy to yield. he did—and he is being investigated for I think that is a valid analysis and I I do know one thing. Lee Malvo him- it—S. 1805 does not immune him from certainly did not intend to misportray self said: I stole the weapon. That is any of those actions. That is what is that. very important. But the Senator sug- important to understand as we debate Again, let’s go back to the law. Are gested—and his words were: Well, the bill. His acts were criminal. If he is you suing the store if there are law- maybe an under-the-table deal. I do not in violation of the Federal firearm li- suits, or are you suing the individual know that stealing is under the table, cense, if he has mishandled his records, who had the Federal firearms license? and the man who pulled the trigger ad- and if he had, in fact, seen a robbery Is it the physical structure that is lia- mitted he had stolen the weapon. You and failed to report it, then this man is ble or is it the individual who owned can imply anything you want. I can’t. in trouble because that is the law. We the structure who is liable? We know

VerDate jul 14 2003 04:17 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.105 S25PT1 S1578 CONGRESSIONAL RECORD — SENATE February 25, 2004 what the law is. It is the individual and ing to the well-settled tort law prin- and they were cited 15 or 20 times be- not the store. ciple, proximate cause requires that fore for doing that, and people knew I cannot, nor do I, know the details the defendant’s conduct was a substan- that the dealer’s cars were available, of the relationship. What I do know is tial factor in bringing about the harm and young kids came in and jumped that he cannot sell firearms today. His suffered by the plaintiff. into a car and drove off at 60 miles an license has been pulled. That is what Remember, two elements: State and hour careening into another car and the law requires, and a criminal inves- Federal statutes violated, and that vio- killing someone, I will tell you what I tigation proceeds at this moment. I be- lation being a proximate cause. think. You have a pretty good suit lieve that is the essence of the argu- Here is the difficulty with respect to against that automobile dealer for neg- ment. the situation at the Bull’s Eye Shoot- ligence, for abandoning the care that Mr. REED. That is an accurate de- ing Gallery. Despite the evidence we any other dealer in the country would scription of the situation but, again, have that there were certain viola- adopt. They would not be protected the imprecision was whether the store tions, many of them record keeping, it from a suit as we propose to protect is operating, not who is operating it. is going to be virtually impossible that the gun industry. The individual is not able to operate the plaintiffs in the sniper case will be Again, this legislation is very trou- because he lost his license. able to show that Bull’s Eye violated bling to me. I do not think it provides Mr. CRAIG. If the Senator will fur- any State or Federal statute with re- adequate protections for people who ther yield, I did use the phrase ‘‘store spect to the particular gun that was have legitimate claims, the most closed.’’ I meant the ownership, as it used by the snipers or that any such graphic example of which is the sniper was; he closed. It reopened. Whether it statutory violation was a proximate victims in the Washington, DC, area. was 24 hours or 48 hours, he could no cause of the sniper attacks. But they are not alone. Danny Guzman longer operate it when his license was The evidence concerning the acquisi- was killed in Worcester, MA, as a re- revoked. We understood he sold it to a tion of the snipers’ weapon supports sult of what I think is gross negligence. new operator who is licensed. Bull’s Eye’s claim that Lee Boyd Malvo A gun manufacturer employed, without Mr. REED. I think it is important to shoplifted the gun. That is not in dis- background checks, ex-convicts, drug clarify that because it has been a mat- pute. Indeed, after his arrest, I believe addicts, allowing them to steal weap- ter of factual dispute. Malvo admitted he shoplifted the gun ons from the production inventory of The other issue which has to be clari- from Bull’s Eye. Although the plain- the company, and to sell them to fied is the applicability of this legisla- tiffs or the family of the plaintiffs criminals in exchange for cash and tion to that original owner-operator claim that Bull’s Eye’s lax security drugs. This involved a multiple of who had been accused of a laundry list practice permitted Malvo to get the weapons. They got the weapons out of of inappropriate actions. I had the op- weapon, that would not establish a vio- the factory before they could stamp portunity to review some of them lation of any Federal or State statute. the serial numbers on them. Again, today. Again, a reading of this exception common sense would say: My goodness With respect to the owner of the would say that you have to show, first, gracious, somebody has to be able to go Bull’s Eye Shooting Gallery at the a Federal or State statute was vio- in and require that employer to be con- time the Malvo gun was obtained, lated, and the violation of that statute scious of their weapons, their security under his ownership and under his li- was the proximate cause was reading procedures. cense, 238 guns were missing. Many to injury. It is virtually impossible in I also understand—and again it is an guns between 1997 and 2001 found their this case. understanding that is not shaped by a way into crime scenes. A remarkable What is happening in all of these ex- footnote at the moment—there are record of guns found their way from a ceptions that are built into the bill is, really no effective State or Federal licensed dealer to crime scenes. Many this is a trapdoor, if you will. We have laws about the security of weapons. I found themselves to crime scenes in a a general prohibition against any type do not think there is any requirement rapid period of time. The nomenclature of suit against these individuals, these specifying you have to have triple is ‘‘time to crime.’’ Time to crime was dealers, these manufacturers, or trade locks or double locks, et cetera. I think remarkably narrow. The time to crime associations; and then we have excep- that is left to the reasonable business was less than 3 years in more than 70 tions. And they point out within the standards of an individual dealer. percent of Bull’s Eye cases between exceptions, artfully constructed by Again, if we do not have those rules 1997 and 2001, suggesting this organiza- very good lawyers, provisions for an es- and regulations or they are not effec- tion was a conduit for obtaining weap- cape clause for the potential defend- tive, how do we then insist we cannot ons for crimes. ants. Here it is, the combination of have a negligence action, as this legis- There were large numbers of multiple proximate cause and violation of Fed- lation proposes? firearms sales. Sometimes he would eral-State statute. For these reasons and many others I sell as many as 10 guns at a time. Again, close analysis of the evi- reiterate my opposition to the legisla- There were numerous ATF citations, at dence—and I don’t think any of this tion. least 15 times between 1997 and 2001. evidence is in dispute; Malvo admitted I yield the floor. That is the record of the individual he shoplifted the weapon—suggests The PRESIDING OFFICER. The Sen- whose license was suspended, finally, strongly this exception would not ator from Idaho. by the ATF. apply in the case of the Bull’s Eye Mr. CRAIG. Hope springs eternal that But the issue is, with respect to this shooter. These sniper victims will be we might, sometime in the late of the individual, if we pass this legislation, without relief. That is not just my afternoon—I guess it is now described will he be immunized after this record view but the view of attorneys who as early evening—see a unanimous con- of negligence, recklessness, irrational have looked at it very carefully. sent agreement that would take us into responsibility? Most people would say Now, this is a very detailed legal tomorrow and the remainder of the that is the record. The exemption pro- analysis. But, again, we so often—all of week as to how we are able to move to vided by paragraph (5)(A)(iii) says, in us—appeal to rather common, home- and deal with S. 1805 and its amend- effect, the action would be preserved in ly—in a literal sense—illustrations, ments. which a manufacturer or seller of a something with which we are com- I am going to respond only briefly to qualified product violated a State or fortable. I was struck when the Sen- what my colleague has just said be- Federal statute applicable to the sale ator from Idaho talked about, Good- cause I am not an attorney and I am or marketing of the product and the ness gracious, if someone stole a car off not going to attempt to outlawyer the violation was a proximate cause of a lot and drove into another car and lawyers. Mr. Cutler is a fine lawyer. harm for which relief is sought. caused damage, that you could not There are many other fine lawyers who Two elements: You have to violate hold that dealer responsible. disagree with Mr. Cutler. It is not our Federal and State statutes; and that Well, I can conceive of a situation. job to outlawyer the lawyers, but it is violation was the proximate cause of For example, if a dealer ordinarily left our job to write law as clearly as we the damage to the individual. Accord- the keys in all of the cars on his lot, can and then allow judges, listening to

VerDate jul 14 2003 02:46 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.108 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1579 the arguments of lawyers as they re- That is what the Congressional Re- Obviously a second opinion was late to how a given situation might fit search Service says. Then it draws that sought. That is the nature of legal in a suit, to make the determination as conclusion I gave earlier: opinions many times. This opinion was to the applicability of the law. Applying these changes to the scenario at premised on certain facts that are not Now, having said that, I would like issue— yet obvious and perhaps never to be ob- to refer to another lawyer. Is he as rec- That is what the Daschle-Craig-Bau- vious. ognized as is Mr. Cutler? No, probably cus amendment does. ‘‘The scenario at In fact, in reference in the report not. But this does come from the Con- issue,’’ the arguments put forth, the Senator CRAIG referred to: gressional Research Service, and it is concern about somehow, if the facts Thus, in the event that it is established one of those services that we utilize. are established, this firearms dealer that Bull’s Eye was aware that the firearm The Senator has, I think, the same being immune by S. 1805— was missing from its inventory more than 48 hours prior to November 5, 2002, the Amend- work product I have. We are talking it would appear that the Amendment could ment would appear to lend further support to about the Daschle-Craig-Baucus have the effect— the application of the exception to immunity amendment that Senator DASCHLE The amendment is in large part in- . . . of the bill. came to the floor to speak to a few mo- corporated in S. 1805 now, and Senator Essentially what was done in this ments ago. DASCHLE is going to offer another The Daschle-Craig-Baucus Amendment latest CRS was to say: We will assume amendment that we know will be ac- hypothetically that in fact they vio- would strike ‘‘knowingly and willfully’’ in cepted and will clarify it even more— the preceding sentence— lated the Federal statute, i.e., the re- of making it more likely that this exception That we are talking about— quirement to report a weapon within 48 to immunity would be applicable, [again] if hours of its disappearance. Well, if you potentially increasing the likelihood that certain facts are established. assume a violation of the statute, you [certain exceptions] to the general immunity That is the argument at hand. We afforded under the [law] would be applicable have gotten way over the curve, be- in any given case. can trade arguments of attorneys. We cause once again, Federal statute or They looked at it in relationship to will place all these kinds of things in State statute has to be violated, proxi- the Bull’s Eye case to which the Sen- the RECORD so our colleagues can un- mate cause. ator was referring. derstand them and hopefully sort them The problem is this assumption does Now, these are not my words. I am out, but it is my opinion that we are not have much of an evidentiary base. not this good. I am not an attorney. not exempting this formerly licensed The footnote to the report Senator gun dealer who has now had his license But I do listen to them, and I seek out CRAIG referred to suggests: revoked. Because if an investigation their advice when it comes to writing These examples are pertinent to the ex- law and making sure that it is clear goes forward, and charges are filed tent— against him, I believe we have clearly and unambiguous. examples of potential violations— They cite two examples and they say: not granted him immunity under S. they could be implicated in any hypothetical Applying these changes to the scenario at 1805 if it, in fact, becomes law. I do be- lieve that is the strength of our argu- sale or transfer to the D.C.-area sniper sus- issue— pects. It should be noted, however, that it We are talking about Bull’s Eye— ment, and one that certainly is be- does not appear that any evidence has been it would appear that the Amendment could lieved to be what we represent here. It produced of actual violations of these provi- have the effect of making it more likely that is certainly from the Congressional Re- sions by Bull’s Eye in the case at hand. this exception to immunity would be appli- search Service, which has very active The answer to qualifying this exemp- cable, if certain facts are established. attorneys who deal constantly with the tion is not to assume a violation of ‘‘If certain facts are established.’’ law as we shape it and form it and look Federal law. There has to be some evi- Those facts have not yet been estab- at arguments that are placed out there dence. But there does not appear to be lished. They were not established for in the public arena in relation to the any evidence of violations of Federal Attorney Cutler. He is simply looking legislation that we bring before the statutes. There are no Federal/State at the broad presence of the law, or ap- Senate. statutes with respect to security of plication of it, as are we. I yield the floor. firearms, the physical security. The If certain facts are established in an The PRESIDING OFFICER. The Sen- slender reed—no pun intended—they investigation and charges are brought ator from Rhode Island. might hang it upon is they somehow Mr. REED. Mr. President, I recognize against an owner, then we believe our knew the weapon was missing a long there are different legal interpreta- amendment clarifies and does not pro- time before November 5, 2002, and they tions. I recognize also the Senator from vide the immunity, if those facts are failed to report it. No evidence from Idaho has introduced an interpretation established. Malvo suggests that. I don’t know if of the Congressional Research Service. Now, the changes we are talking there is, frankly. The stories we have I have one, too. Theirs is dated Novem- about are twofold: all heard from the operator were he ber 3, 2003. Mine is dated October 20, (I) any case in which the manufacturer or didn’t know the weapons were missing seller knowingly made any false entry in, or 2003. We made a request. They looked until the day they showed up, the ATF failed to make appropriate entry in, any at the amendment, the perfecting showed up and said the weapons were record which he is required to keep pursuant amendment offered by Senators CRAIG, missing. The practical effect of this is to State or Federal law— DASCHLE, and BAUCUS. In the context of a judge might have the opportunity for If weapons are stolen and they fail to that correcting amendment, they a few minutes to look at this record, note it, fail to report it to the police, opined in October: that fits that area— but where is the evidence? Again, you have specifically inquired as to The practical effect of this legisla- or aided, abetted or conspired with any whether the Amendment would alter the bill person in making any false or fictitious oral to such a degree as to allow the pursuit of a tion is these claims will be barred. or written statement with respect to any civil action against the gun dealer from That would be a great misfortune, not fact material to the lawfulness or the sale or whom the weapon used in the D.C.-area snip- only for the families involved but a other disposition of a qualified product. er shootings was stolen. A review of federal misfortune in terms of setting up a ‘‘Other disposition’’—theft. At least and Washington State law indicates that very bad precedent in terms of under- this is my interpretation now. I am not there are no statutory requirements regard- mining the common law sense of re- a lawyer. Secondly: ing the storage and security of firearms by sponsibility for your actions. Senator licensed firearm dealers. Accordingly, it [A]ny case in which the manufacturer or CRAIG is a very articulate advocate for seems evident that there would be no basis seller aided, abetted or conspired with any his position and has referred to that other person to sell or otherwise dispose of a for the application for this exception in the case at hand, irrespective of the presence of several times; this is just about main- qualified product, knowing or having reason- taining centuries of legal precedent able cause to believe that the actual buyer of the ‘‘knowing and willfully’’ requirement, the qualified product was prohibited from given that there appears to be no violation of about individual responsibility. I dis- possessing or receiving a firearm or ammuni- a relevant underlying federal or state stat- agree. I think it is about overturning tion under section 922(g) or (n) of title 18, ute. centuries of legal precedent, the prece- United States Code. . . . That is an October CRS. dent that an individual is responsible

VerDate jul 14 2003 02:46 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.111 S25PT1 S1580 CONGRESSIONAL RECORD — SENATE February 25, 2004 for their actions, that an individual, I yield the floor. pass laws, but we do not have to know such as the licensee at Bull’s Eye, is re- The PRESIDING OFFICER. The Sen- what they mean because some judge sponsible for not securing the weapons, ator from Idaho. will figure out what they mean. No, no, is responsible for not knowing he has Mr. CRAIG. Mr. President, we hope I think we have to know what they lost weapons—according to his view at we are narrowing down to a time when mean because that should drive our de- this point—for days and weeks and we will have a unanimous consent re- cision about whether this legislation weeks. If we immunize the individual, quest which then—and I can’t judge will pass or fail. we will undercut that basic principle of this yet—might conclude our efforts Let me turn for a moment to these individual responsibility. today. We will be back early tomorrow two theories of negligent entrustment/ One of the things I find amazing in morning to resume. I thank my col- negligence per se. this whole discussion of the security of league for his arguments. We are not Negligent entrustment is generally weapons is, I commanded a paratrooper going to try this case here on the floor understood as ‘‘the supplying of a company at Fort Bragg. I worried of the Senate because we don’t have a qualified product by a seller for use by every day about the weapons in my judge. I am not a lawyer. He is; I am another person when the seller knows, outfit. We had double locks on the not. But I would also ask him to look or should know, the person to whom doors, locks on the racks, individual at another provision we have in the bill the product is supplied is likely to, and accounting every day of weapons. One as he argues the case. That is that a does, use the product in a manner in- of the things that as a young airborne lawsuit could also be allowed under the volving unreasonable risk of physical captain you are worried about was bill’s exception allowing actions for injury to the person or others.’’ showing up one day and discovering a negligence per se or for negligent en- Again, the seller has to know, or is weapon or part of a weapon or even trustment, depending on, of course, the likely to know, that the person they equipment associated with a weapon condition of the dealer and the dealer’s transfer the weapon to or supplied it to was missing. That was a big deal. That knowledge, if any, of the suspects. is likely to harm himself or harm is a standard of the United States Having said that, let’s remember to someone else. The problem we have with respect to Army. address these issues, the victim would We are telling people who maintain need to get his day in court. The case the sniper case is that the evidence the large arsenals in commercial venues will be filed. The defendant would file a snipers’ weapon was shoplifted from Bull’s Eye would appear to preclude that the standard for them is nothing. motion to dismiss based on provisions the plaintiffs from making the req- Miss a few weapons, don’t even pay at- of 1805. And if the judge—remember uisite showing under the statute that tention because, frankly, knowledge there is going to be the impartial judge the gunshop knew or should have will hurt you. weighing all the law and the findings— known that the recipient of the gun, This goes also to the principle of why decides this case did not fall under Malvo, was likely to use the product in we have laws of negligence, tort laws. those exceptions, then the litigation a criminal or otherwise unreasonably It is not just for individual compensa- would proceed. That is the essence. We tion. That is an important part of giv- dangerous manner. are not going to argue the case effec- Malvo indicated he shoplifted the ing an individual the right to make tively here because, frankly, we don’t weapon. The owner said he must have themselves whole after they have been know all of the facts. We are not a part taken it. He didn’t know it was missing harmed. It is something else. It is of ATF’s investigation, and all of those until ATF showed up. about having a system of standards facts are not yet public. They will not The theory of negligent entrustment that are self-enforcing, not because be public until charges are filed, a suit is fancy-sounding terminology, but it there are ATF agents walking around, is brought, and that day in court I just is another trapdoor from which the ex- but because in addition to that, an spoke of is at hand. ception falls out. owner of one of these stores will simply Obviously, the Senator and I can dis- Negligence per se, under most—I am say: You know, I better make sure all agree on what the meanings are, but I a lawyer, but I am hesitant to say I am these weapons are accounted for at do believe the arguments we put forth a lawyer who is familiar in every detail least every week. I better make sure are extremely valid. Certainly, the mi- with Federal practice, but my assump- they are secure. I better make sure if nority leader, myself, and others, in a tion is since we are talking about Fed- people walk in who might not be eligi- very bipartisan fashion, have worked eral and State laws, this negligence per ble to purchase a weapon I at least ask tremendously hard to craft this bill in se is a State common law concept that them what they are doing. None of that a way that is as narrow as I expressed would apply to the laws of Washington appears to be done. it to be earlier in the day to deal only State because that is where the Bull’s In response to the specific question of in the protection of law-abiding deal- Eye shooting gallery is located. the application of the exemption, I ers, law-abiding manufacturers who In any event, with respect to neg- think the proponents have tried all make a legitimate product, and to deny ligence per se, it would not preserve they can to dress it up. It just doesn’t the kind of lawsuits we have seen that the sniper case because even where work. There is a huge trapdoor when are more intent on bankrupting the that doctrine is recognized, it requires you put together violation of State or manufacturer than they are in bringing a violation of statute that is a proxi- Federal statute and that violation resolution to or, if you will, dealing mate cause of the plaintiff’s injury. causes proximate cause. with the victims and rewarding them Once again, you have to show not only Someone could go in and show they in any fashion. the violation but that violation of that didn’t file the records properly. That is I yield the floor. particular law was a proximate cause a violation of Federal and State regu- The PRESIDING OFFICER (Mr. of injury. As discussed above—again I lation. They could show perhaps they COLEMAN). The Senator from Rhode Is- am borrowing from one of these legal were lax in some other capacity. Then land. analyses—that would be very difficult you have to make the further showing Mr. REED. Mr. President, my col- to show. In fact, also I think there is that violation was directly connected. league from Idaho has invited me to another problem in Washington State So literally in this case you are going look at the theory of negligent entrust- about the doctrine of negligence per se. to have to show that particular weapon ment and negligence per se. I will try The negligence per se doctrine has that found its way into Malvo’s hands to do that. been abrogated by statute in Wash- was the subject or involved with a spe- Again, this is not an attempt to dis- ington State. It doesn’t apply. cific violation of Federal/State law. pose of a case before a court. But we all Once again, I think we have an excep- That is why this CRS report has to as- have an obligation to understand what tion that does not provide relief for sume that particular weapon, of all the we are voting on, what these provisions these individuals. 248, was noted as missing more than 48 will do based on the plain language of I conclude by joining my colleague in hours before November 5, 2002. That is the provisions and based upon the facts hoping we have some resolution soon an extra burden of proof. That is, as we know them in certain cases. That on the procedural process for this again, why I don’t think this will work is why I think this is a positive exer- evening and tomorrow. I yield the for the victims of these crimes. cise. It is insufficient to say that we floor.

VerDate jul 14 2003 02:46 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.114 S25PT1 February 25, 2004 CONGRESSIONAL RECORD — SENATE S1581 Mr. CRAIG. Mr. President, I suggest form, to be followed by a vote in rela- Senators who have additional amend- the absence of a quorum. tion to the amendment, to be followed ments are certainly welcome to do so. The PRESIDING OFFICER. The by an amendment offered by Senator Second, this does not preclude those clerk will call the roll. CORZINE on law enforcement officers who have amendments on Tuesday The assistant legislative clerk pro- for 30 minutes equally divided in the from discussing and speaking to those ceeded to call the roll. usual form, to be followed by a vote in amendments at any time between now Mr. MCCONNELL. Mr. President, I relation to the amendment, to be fol- and when those amendments are ask unanimous consent that the order lowed by an amendment by Senator raised. There was some question about for the quorum call be rescinded. BINGAMAN on definition, with 30 min- whether 2 hours on Tuesday for three The PRESIDING OFFICER. Without utes equally divided in the usual form, very important amendments is ade- objection, it is so ordered. to be followed by a vote in relation to quate. My answer is that it is more Mr. MCCONNELL. Mr. President, the amendment. than 2 hours if people want to devote after consultation, we have reached a I further ask unanimous consent that more than that time between now and unanimous consent agreement which I following each of the Boxer, Kennedy, the time they are offered. I encourage will now propound. Mikulski, Bingaman, Corzine amend- Senators who wish to speak longer to I ask unanimous consent that at 9:30 ments it be in order for Senator FRIST come to the floor over the course of the a.m. tomorrow morning the Senate or his designee to offer a first-degree next week to do so. proceed to the consideration of S. 1805; amendment that would be relevant to This is a very fair agreement. It is that Senator DASCHLE then be recog- the mentioned amendments and lim- one that takes into account a lot of nized to offer his perfecting amend- ited under the same time constraints; concerns and interests on the part of ment; that there be 30 minutes equally and that the possible Frist amendment many Senators. I am supportive of the divided for debate on his amendment; on ‘‘cop-killer’’ bullets be set aside agreement and hope that we can have a that at the conclusion or yielding back after time has expired or yielded on the good debate as a result of it. of time the Senate, without any inter- amendment; and that the possible Frist I yield the floor. vening action or debate, vote on the amendments would be voted on prior to The PRESIDING OFFICER. The ma- Daschle amendment; that upon the dis- the respective Democratic amend- jority whip. Mr. MCCONNELL. I echo the com- position of that amendment Senator ments; that on Tuesday morning at 9:30 ments of the Democratic leader. This BOXER be recognized to offer a gun lock a.m. the pending amendments be with- agreement, which is quite complex, al- amendment; further, that following 30 drawn with the exception of the Camp- lows us to accommodate various inter- minutes of debate equally divided in bell amendment, the Kennedy amend- ests on both sides of the aisle but then the usual form Senator DEWINE be rec- ment, and a possible amendment by move to final passage on the under- ognized to offer a relevant second de- Senator FRIST regarding ‘‘cop-killer’’ gree under the same conditions; fur- lying bill, which, of course, was the bullets, if there are any pending at the goal of the majority leader in bringing ther, that following the use of time the time; that Senator REED then be recog- it up at this time. I particularly com- Senate proceed to a vote in relation to nized to offer a gun show amendment; mend Senator CRAIG, who has done a the second degree to be followed by a that it then be immediately laid aside marvelous job of managing this issue vote in relation to the underlying and Senator FEINSTEIN be recognized to on our side, and I thank him for his im- amendment. offer her assault weapons ban amend- portant contribution in reaching this Further, I ask unanimous consent ment, that it then be set aside, and agreement that will allow the Senate that following those votes Senator that Senator FRIST or his designee be to achieve final passage on a bill that CAMPBELL be recognized in order to recognized to offer a DC gun ban he is the principal sponsor of and that offer an amendment regarding conceal- amendment; that the time prior to we believe a substantial majority of carry and that there be 60 minutes 11:35 a.m. that day be equally divided Senators on a bipartisan basis would equally divided in the usual form with for debate on all amendments concur- like to see ultimately become law. no second degrees in order; provided rently; that no second-degree amend- Mr. CRAIG. Will the Senator yield? that following that time the amend- ments be in order to any amendment; Mr. MCCONNELL. I yield. ment be set aside and Senator KENNEDY that at 11:35 a.m. the Senate vote on Mr. CRAIG. Let me thank both the be recognized to offer an amendment the Feinstein amendment, followed im- leadership on our side of the aisle and on ‘‘cop-killer’’ bullets with 60 minutes mediately by a vote on Senator REED’s certainly the minority leader and the equally decided, and that there be no amendment, to be followed by a vote minority whip for the work they have second degrees in order, and that fol- on the Campbell amendment, to be fol- done in trying to bring this together. lowing that time the amendment be set lowed by a vote on the Kennedy amend- Is this something that I whole- aside. ment, to be followed by a vote on the heartedly support? Well, let me put it I further ask unanimous consent that District of Columbia ban amendment; this way: It is something I support be- Senator CANTWELL then be recognized further, that following the disposition cause it gets us to a final vote, which to offer her unemployment extension of the above amendments the bill be is very important, in a timely way. amendment; that there be 60 minutes read the third time and the Senate pro- But something is absent from this for debate equally divided on her ceed to a vote on final passage of the unanimous consent agreement that is amendment and it then be laid aside; bill with no intervening action prior to very important: to allow the under- that no second-degree amendments be those votes; that where this agreement lying bill, however it is changed, to be- in order to her amendment; further, provides for two or more votes in se- come law. That is why we are here on that Senator FRIST or his designee quence there be 2 minutes for debate the floor. Not that this is how we get then be recognized in order to offer an equally divided in the usual form prior to conference, which oftentimes is amendment relating to voting rights to each vote; that all time for debate agreed to. When we craft a bill and ar- and that there then be 60 minutes of be equally divided in the usual form. rive at a time of final passage, we al- debate equally divided with no amend- The PRESIDING OFFICER. Without most always include in it the procedure ments to the amendment; provided fur- objection, it is so ordered. by which we will get to conference. ther that the Senate then proceed to Mr. DASCHLE. Mr. President, it has I hope that our minority leader, in vote in relation to the Cantwell and obviously taken a good deal of time to good faith, would work to help us get Frist amendments in that order, and reach this agreement due to the com- to that point so we can work out the that if either amendment fails to re- plexity that is apparent as Senator differences between the House and the ceive 60 votes, the amendment be with- MCCONNELL has read it. Senate. There will be differences; that drawn or fall due to a pending point of There are two matters that ought to is quite obvious now. Some of these order. be recognized. First, this does not pre- amendments could pass. It is impor- I also ask unanimous consent that clude Senators who are not listed in tant we work that out. Senator MIKULSKI then be recognized this unanimous consent agreement We saw the underlying bill gain a to offer her amendment on snipers with from offering an amendment sometime substantial bipartisan majority sup- 40 minutes equally divided in the usual either this week or early next week. port in the Senate, and therefore it is

VerDate jul 14 2003 02:46 Feb 26, 2004 Jkt 029060 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 E:\CR\FM\G25FE6.128 S25PT1 S1582 CONGRESSIONAL RECORD — SENATE February 25, 2004 incumbent upon all of us, I trust, to There being no objection, the mate- daily from the Normandy invasion in get this bill to a conference between rial was ordered to be printed in the France. After her discharge from the the House and the Senate, work out RECORD, as follows: Army, she stayed in Germany, where our differences so we can vote on a con- THE WHITE HOUSE, her volunteer work at an orphanage led ference report and allow this under- Washington, February 25, 2004. her to adopt two children who were on lying bill now changed to get to our Hon. TED STEVENS, the brink of starvation. In 1954, she President’s desk. President pro tempore of the Senate, earned an RN in Pathology degree, the Having said that, let me thank every- Washington, DC. equivalent of a master’s degree, from one for the work they have done. This DEAR MR. PRESIDENT: Increasing armed re- St. Joseph’s Hospital in Burbank, CA. bellion in Haiti, the limited effectiveness of is a very busy schedule. But let me also the Haitian National Police, and insecurity After she earned her pathology de- echo what the minority leader said. It in Port-au-Prince brought on by increased gree, Virginia worked in pathology for does not stop other Members who feel armed pro-government gang activity have 7 years at St. Joseph’s Hospital, and at they must offer amendments from contributed to a climate of insecurity for the St. Luke’s Hospital in Aberdeen for 25 bringing those to the floor. I said early U.S. Embassy and its supporting facilities in years. She also spent 5 years working on today we wanted an open process, Port-au-Prince, Haiti. These circumstances with Alzheimer’s patients at Arcadia in amendments voted on, but at the end and the potential for further deterioration of Aberdeen. Today, in addition to her of the day we wanted to vote on final the security environment in Haiti render the work at Bethesda Towne Square, Vir- safety of the U.S. Embassy, its facilities, and passage. We helped facilitate that by U.S. personnel uncertain. ginia works between 30 and 50 hours a this agreement, and I appreciate the On February 23, 2004, a security force of ap- week on her stained-glass window busi- work done by our leaders. proximately 55 U.S. military personnel from ness, and acts as her church secretary. The PRESIDING OFFICER. The ma- the U.S. Joint Forces Command deployed to I join Virginia’s many admirers in jority whip. Port-au-Prince, Haiti, to augment the Em- congratulating her on receiving this Mr. MCCONNELL. I was just re- bassy security forces. prestigious and well-deserved award. minded by floor staff that the Reed Although the U.S. forces are equipped for amendment is, in fact, the McCain- combat, this movement was undertaken sole- f ly for the purpose of protecting American Reed amendment. I ask consent that citizens and property. It is anticipated that TAIWAN the agreement we just reached be so U.S. forces will provide this support until Mr. FEINGOLD. Mr. President, over modified. such time as it is determined that the secu- The PRESIDING OFFICER. Without rity situation has stabilized and the threat recent months, aggressive rhetoric has objection, it is so ordered. to the Embassy, its facilities, and U.S. per- escalated across the Taiwan Strait. In The PRESIDING OFFICER. Without sonnel has ended. response to Taiwanese President Chen objection, it is so ordered. I have taken this action pursuant to my Shui-bian’s pledge to hold a nationwide The Democratic whip. constitutional authority to conduct U.S. for- referendum ‘‘to demand that the Tai- eign relations and as Commander in Chief wan Strait issue be resolved through Mr. REID. Mr. President, I feel con- and Chief Executive. I am providing this re- strained to say that we have been in a peaceful means,’’ Chinese officials have port as part of my efforts to keep the Con- threatened the use of force. Prime Min- quorum call now for 4 hours 10 min- gress informed, consistent with the War utes, but that does not take away from Powers Resolution. ister Wen Jiabao of the People’s Repub- the fact that people have been working Sincerely, lic of China has stated that China will very hard during this entire period of GEORGE W. BUSH. ‘‘crush’’ any attempts by Taiwan to time, plus earlier this day. I personally f seek independence and that it will extend my appreciation to the two ‘‘pay any price to safeguard the unity CONGRATULATING VIRGINIA of the motherland.’’ In addition on No- leaders, the Republican leader and the SCHUYLER Democratic leader, for working with vember 20, 2003, PRC Major General us. Senator FRIST is not on the floor Mr. DASCHLE. Mr. President, I come Wang Zaixi was quoted saying that tonight. We have been in constant con- to the floor today to congratulate Vir- ‘‘the use of force may become unavoid- tact with him during the evening. ginia Schuyler, a woman from my able’’ in dealing with Taiwan. On Feb- I also want to say that Senator REED, hometown of Aberdeen, SD, who has ruary 11, 2004, Chinese officials stated my counterpart from Rhode Island, has dedicated her life to helping those in the referendum would ‘‘provoke con- been representing those people who are need. Virginia is the recipient of South frontation.’’ extremely concerned about this issue, Dakota’s 2003 Outstanding Older Work- Threats of violence by the People’s probably 12, 15 Senators. He has been er Award, an honor bestowed by Expe- Republic of China only undermine ef- extremely helpful, as he always is. He rience Works, an organization com- forts to resolve longstanding China- has represented his cause in the most mitted to improving the lives of sen- Taiwan tensions. Intimidation and efficient way. Without his cooperation iors in South Dakota through quality warnings of bloodshed have taken the and work, Senator DASCHLE and I could job training and employment pro- place of constructive dialogue. I fear not be at the point where we are today. grams. that these threats will only intensify The PRESIDING OFFICER. The ma- Virginia decided early on that she as Taiwan’s presidential elections on jority whip. wanted to be a nurse. From a very March 20, 2004, draw nearer. young age, Virginia knew she wanted In the midst of this bellicose rhet- f to travel. When her mother told her oric, I express my support for the peo- MORNING BUSINESS that nurses travel on boats and planes, ple of Taiwan and to compliment the Mr. MCCONNELL. Mr. President, I her mind was made up. For 60 years she Taiwanese people and their leadership ask unanimous consent that the Sen- has been a registered nurse, and she for the great strides they have made in ate now proceed to a period of morning has traveled all over the world. For the strengthening their democracy. Since business with Senators permitted to past 5 years, Virginia, 81, has cared for 2000, with the first peaceful transfer of speak for up to 10 minutes each. residents at the Bethesda Towne power from one political party to an- The PRESIDING OFFICER. Without Square, an assisted living facility. The other in Taiwan’s history, Taiwan’s de- objection, it is so ordered. residents there deeply appreciate her mocracy has thrived. The U.S. State f dedication—she insists on working Department’s annual Human Rights every weekend—as well as everything Reports for 2002 reported that the gov- REPORT PURSUANT TO WAR she does for them, activities that range ernment of Taiwan largely respected POWERS RESOLUTION from bringing them hot tea at night to the independence of both the judiciary Mr. STEVENS. Mr. President, I ask painting stained-glass windows for the and press in practice and stated, ‘‘Tai- unanimous consent that the attached residents in her spare time. wan’s strides were also notable, with report from the President of the United Virginia earned an RN degree in 1943. consolidation and improvement of civil States be printed in the RECORD, con- She joined the U.S. Army, serving in liberties catching up to its free and sistent with the War Powers Resolu- England, France, and Germany, and re- open electoral system.’’ Transparency tion. calls treating as many as 500 patients International has ranked Taiwan’s

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