[House Report 108-59]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-59
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PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
_______
April 7, 2003.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1036]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1036) to prohibit civil liability actions from being
brought or continued against manufacturers, distributors,
dealers, or importers of firearms or ammunition for damages
resulting from the misuse of their products by others, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 4
Hearings......................................................... 28
Committee Consideration.......................................... 29
Vote of the Committee............................................ 29
Committee Oversight Findings..................................... 30
Performance Goals and Objectives................................. 30
New Budget Authority and Tax Expenditures........................ 30
Congressional Budget Office Cost Estimate........................ 31
Constitutional Authority Statement............................... 32
Section-by-Section Analysis and Discussion....................... 32
Markup Transcript................................................ 33
Dissenting Views................................................. 97
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protection of Lawful Commerce in
Arms Act''.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--The Congress finds the following:
(1) Citizens have a right, protected by the Second
Amendment to the United States Constitution, to keep and bear
arms.
(2) Lawsuits have been commenced against manufacturers,
distributors, dealers, and importers of firearms that operate
as designed and intended, which seek money damages and other
relief for the harm caused by the misuse of firearms by third
parties, including criminals.
(3) The manufacture, importation, possession, sale, and use
of firearms and ammunition in the United States are heavily
regulated by Federal, State, and local laws. Such Federal laws
include the Gun Control Act of 1968, the National Firearms Act,
and the Arms Export Control Act.
(4) Businesses in the United States that are engaged in
interstate and foreign commerce through the lawful design,
manufacture, marketing, distribution, importation, or sale to
the public of firearms or ammunition that has been shipped or
transported in interstate or foreign commerce are not, and
should not, be liable for the harm caused by those who
criminally or unlawfully misuse firearm products or ammunition
products that function as designed and intended.
(5) The possibility of imposing liability on an entire
industry for harm that is solely caused by others is an abuse
of the legal system, erodes public confidence in our Nation's
laws, threatens the diminution of a basic constitutional right
and civil liberty, invites the disassembly and destabilization
of other industries and economic sectors lawfully competing in
the free enterprise system of the United States, and
constitutes an unreasonable burden on interstate and foreign
commerce of the United States.
(6) The liability actions commenced or contemplated by the
Federal Government, States, municipalities, and private
interest groups are based on theories without foundation in
hundreds of years of the common law and jurisprudence of the
United States and do not represent a bona fide expansion of the
common law. The possible sustaining of these actions by a
maverick judicial officer or petit jury would expand civil
liability in a manner never contemplated by the Framers of the
Constitution, by the Congress, or by the legislatures of the
several states. Such an expansion of liability would constitute
a deprivation of the rights, privileges, and immunities
guaranteed to a citizen of the United States under the
Fourteenth Amendment to the United States Constitution.
(b) Purposes.--The purposes of this Act are as follows:
(1) To prohibit causes of action against manufacturers,
distributors, dealers, and importers of firearms or ammunition
products for the harm caused by the criminal or unlawful misuse
of firearm products or ammunition products by others when the
product functioned as designed and intended.
(2) To preserve a citizen's access to a supply of firearms
and ammunition for all lawful purposes, including hunting,
self-defense, collecting, and competitive or recreational
shooting.
(3) To guarantee a citizen's rights, privileges, and
immunities, as applied to the States, under the Fourteenth
Amendment to the United States Constitution, pursuant to
section 5 of that Amendment.
(4) To prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign commerce.
(5) To protect the right, under the First Amendment to the
Constitution, of manufacturers, distributors, dealers, and
importers of firearms or ammunition products, and trade
associations, to speak freely, to assemble peaceably, and to
petition the Government for a redress of their grievances.
SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY ACTIONS IN
FEDERAL OR STATE COURT.
(a) In General.--A qualified civil liability action may not be
brought in any Federal or State court.
(b) Dismissal of Pending Actions.--A qualified civil liability
action that is pending on the date of the enactment of this Act shall
be dismissed immediately by the court in which the action was brought
or is currently pending.
SEC. 4. DEFINITIONS.
In this Act:
(1) Engaged in the business.--The term ``engaged in the
business'' has the meaning given that term in section
921(a)(21) of title 18, United States Code, and, as applied to
a seller of ammunition, means a person who devotes, time,
attention, and labor to the sale of ammunition as a regular
course of trade or business with the principal objective of
livelihood and profit through the sale or distribution of
ammunition.
(2) Manufacturer.--The term ``manufacturer'' means, with
respect to a qualified product, a person who is engaged in the
business of manufacturing the product in interstate or foreign
commerce and who is licensed to engage in business as such a
manufacturer under chapter 44 of title 18, United States Code.
(3) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership, society,
joint stock company, or any other entity, including any
governmental entity.
(4) Qualified product.--The term ``qualified product''
means a firearm (as defined in subparagraph (A) or (B) of
section 921(a)(3) of title 18, United States Code, including
any antique firearm (as defined in section 921(a)(16) of such
title)), or ammunition (as defined in section 921(a)(17) of
such title), or a component part of a firearm or ammunition,
that has been shipped or transported in interstate or foreign
commerce.
(5) Qualified civil liability action.--
(A) In general.--The term ``qualified civil
liability action'' means a civil action brought by any
person against a manufacturer or seller of a qualified
product, or a trade association, for damages or
injunctive relief resulting from the criminal or
unlawful misuse of a qualified product by the person or
a third party, but shall not include--
(i) an action brought against a transferor
convicted under section 924(h) of title 18,
United States Code, or a comparable or
identical State felony law, by a party directly
harmed by the conduct of which the transferee
is so convicted;
(ii) an action brought against a seller for
negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or
seller of a qualified product knowingly and
willfully violated a State or Federal statute
applicable to the sale or marketing of the
product, and the violation was a proximate
cause of the harm for which relief is sought;
(iv) an action for breach of contract or
warranty in connection with the purchase of the
product; or
(v) an action for physical injuries or
property damage resulting directly from a
defect in design or manufacture of the product,
when used as intended.
(B) Negligent entrustment.--In subparagraph
(A)(ii), the term ``negligent entrustment'' means the
supplying of a qualified product by a seller for use by
another person when the seller knows or should know the
person to whom the product is supplied is likely to use
the product, and in fact does use the product, in a
manner involving unreasonable risk of physical injury
to the person and others.
(6) Seller.--The term ``seller'' means, with respect to a
qualified product--
(A) an importer (as defined in section 921(a)(9) of
title 18, United States Code) who is engaged in the
business as such an importer in interstate or foreign
commerce and who is licensed to engage in business as
such an importer under chapter 44 of title 18, United
States Code;
(B) a dealer (as defined in section 921(a)(11) of
title 18, United States Code) who is engaged in the
business as such a dealer in interstate or foreign
commerce and who is licensed to engage in business as
such a dealer under chapter 44 of title 18, United
States Code; or
(C) a person engaged in the business of selling
ammunition (as defined in section 921(a)(17) of title
18, United States Code) in interstate or foreign
commerce at the wholesale or retail level, consistent
with Federal, State, and local law.
(7) State.--The term ``State'' includes each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands,
and any other territory or possession of the United States, and
any political subdivision of any such place.
(8) Trade association.--The term ``trade association''
means any association or business organization (whether or not
incorporated under Federal or State law) that is not operated
for profit, and 2 or more members of which are manufacturers or
sellers of a qualified product.
Purpose and Summary
H.R. 1036, the ``Protection of Lawful Commerce in Arms
Act,'' provides that a ``qualified civil liability action''
cannot be brought in any State or Federal court, and that such
actions that are pending on the date of enactment shall be
dismissed immediately by the court in which the action was
brought or is currently pending. ``Qualified civil liability
action'' is defined in Sec. 4(5)(A) as:
a civil action brought by any person \1\ against a
manufacturer or seller of a qualified product, or a
trade association, for damages or injunctive relief
resulting from the criminal or unlawful misuse of a
qualified product by the person or a third party . .
.''
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\1\ ``Person'' is defined in Sec. 4(3) as including ``any
individual, corporation, company, association, firm, partnership,
society, joint stock company, or any other entity, including any
governmental entity.''
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This term, however, does not include:
(i) an action brought against a transferor convicted
under section 924(h) of title 18, United States
Code,\2\ or a comparable or identical State felony law,
by a party directly harmed by the conduct of which the
transferee is so convicted; (ii) an action brought
against a seller for negligent entrustment \3\ or
negligence per se; \4\ (iii) an action where a
manufacturer or seller of a qualified product knowingly
and willfully violated a State or Federal statute
applicable to the sale or marketing of the product, and
the violation was a proximate cause of the harm for
which relief is sought; (iv) an action for breach of
contract or warranty in connection with the purchase of
the product; or (v) an action for physical injuries or
property damage resulting directly from a defect in
design or manufacture of the product, when used as
intended.
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\2\ 18 U.S.C. Sec. 924(h) provides that it is a criminal offense to
``knowingly transfer[] a firearm, knowing that such firearm will be
used to commit a crime of violence . . . or drug trafficking crime . .
.''.
\3\ ``Negligent entrustment'' is defined in Sec. 4(5)(B) of the
bill as ``the supplying of a qualified product by a seller for use by
another person when the seller knows or should know the person to whom
the product is supplied is likely to use the product, and in fact does
use the product, in a manner involving unreasonable risk of physical
injury to the person and others.''
\4\ Negligence per se is negligence established as a matter of law.
Negligence per se usually arises from a violation of a duty imposed by
statute. See Black's Law Dictionary (7th ed. 1999).
Manufacturers and sellers of qualified products are defined
as those who are federally licensed to manufacture, import, or
deal in firearms, as defined by Federal law. Persons engaged in
the business of selling ammunition, as defined by Federal law,
are also covered under H.R. 1036, if they engage in such
business consistent with federal, State, and local law.
Background and Need for the Legislation
Congress, by passing H.R. 1036, can protect the separation
of powers and uphold democratic procedures by exercising its
authority under the Commerce Clause to prevent State courts
from bankrupting the national firearms industry and setting
precedents that will further undermine American industries and
the U.S. economy.
THE COMMON-SENSE TRADITIONAL RULE IS THAT MANUFACTURERS SHOULD NOT BE
HELD LIABLE FOR THE CRIMINAL OR WILLFULLY TORTIOUS MISUSE OF THEIR
PRODUCTS
Historically, American courts have not held firearms
manufacturers liable for the injuries caused by the negligent
or criminal action of third parties.\5\ Individual plaintiffs
attempting to establish firearm manufacturer liability have
advanced various theories and the courts have overwhelmingly
rejected them. For example, in First Community Trust Co. v.
Colt's Manufacturing Co., the plaintiffs advanced a negligence
theory of liability based upon Colt's ``merchandising and
promoting cheap handguns,'' failure to establish a ``safe-
sales'' policy, and ``fail[ure] to properly warn retailers
regarding `probable misusers' of handguns.'' \6\ Relying upon
earlier cases from the same State,\7\ the Eighth Circuit ruled
that ``handgun manufacturers owe no duty to victims of illegal
shootings.'' \8\ In other cases, individual plaintiffs have
attempted but failed to recover under theories including
defective design,\9\ failure to warn,\10\ public nuisance,\11\
negligence,\12\ strict product liability,\13\ and abnormally
dangerous or ultra-hazardous activity liability.\14\ As one
court observed of slingshots, ``ever since David slew Goliath,
young and old alike have known that slingshots can be dangerous
and deadly.'' \15\ The same could be said for firearms.
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\5\ See First Commercial Trust Co. v. Colt's Mfg. Co., 77 F.3d 1081
(8th Cir. 1996); Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988);
Bubalo v. Navegar, Inc., No. 96 C 3664, 1998 U.S. Dist. LEXIS 3598
(N.D. Ill. Mar. 16, 1998); Rodriguez v. Glock, Inc., 28 F. Supp. 2d
1064 (N.D. Ill. 1998); Caveny v. Raven Arms Co., 665 F. Supp. 530,
(S.D. Ohio 1987), aff'd, 849 F.2d 608 (6th Cir. 1988); Delahanty v.
Hinckley, 686 F. Supp. 920 (D.D.C. 1986), aff'd, 900 F.2d 368 (D.C.
Cir. 1990); Patterson v. Gesellschaft, 608 F. Supp. 1206 (N.D. Tex.
1985); First Commercial Trust Co. v. Lorcin Eng'g, Inc., 900 S.W.2d 202
(Ark. 1995); Merrill v. Navegar, Inc., No. S083466, 2001 Cal. LEXIS
4945 (Aug. 6, 2001); Coulson v. DeAngelo, 493 So. 2d 98 (Fla. Dist. Ct.
App. 1986); Addison v. Williams, 546 So. 2d 220 (La. Ct. App. 1989);
King v. R.G. Indus., Inc., 451 N.W.2d 874 (Mich. Ct. App. 1990); Knott
v. Liberty Jewelry & Loan, Inc., 748 P.2d 661 (Wash. Ct. App. 1988).
\6\ Colt's Mfg., 77 F.3d at 1083 (relying on Lorcin Eng'g, 900
S.W.2d at 205).
\7\ See Lorcin Eng'g, 900 S.W.2d at 202.
\8\ Colt's Mfg., 77 F.3d at 1083.
\9\ See Keene v. Sturm, Ruger & Co., 121 F. Supp. 2d 1063 (E.D.
Tex. 2000); Patterson, 608 F. Supp. at 1206; see also Prentis v. Yale
Mfg. Co., 365 N.W.2d 176, 183, 189 (Mich. 1984) (adopting a pure
negligence risk-utility test to determine liability in defective design
cases; noting that the other method of determining defective design
focused on consumer expectations, which the court deemed too subjective
a test).
\10\ See Keene, 121 F. Supp. at 1069-70 (holding that handgun
manufacturers have no duty to warn of the obvious dangers of handguns);
Perkins v. F.I.E. Corp., 762 F.2d 1250, 1270 (5th Cir. 1985), reh'g
denied, 768 F.2d 1350 (5th Cir. 1985) (warning on handguns not likely
to change buying patterns or reduce violence); Martin v. Harrington and
Richardson Inc., 743 F.2d 1200, 1202 (7th Cir. 1984) (no strict
liability when non-defective product presents danger recognizable to
average consumer); Bookout v. Victor Comptometer Corp., 576 P.2d 197
(Colo. Ct. App. 1978)(``potential for danger inherent in a BB gun is
readily apparent and a warning for the obvious is not a requirement of
the doctrine of products liability'').
\11\ See Bubalo v. Navegar, Inc., No. 96 C 3664, 1998 U.S. Dist.
LEXIS 3598 (N.D. Ill. Mar. 16, 1998). See also Restatement (Second) of
Torts Sec. 821B (1979) (``(1) A public nuisance is an unreasonable
interference with a right common to the general public. (2)
Circumstances that may sustain a holding that an interference with a
public right is unreasonable include the following: (a) Whether the
conduct involves a significant interference with the public health, the
public safety, the public peace, the public comfort or the public
convenience, or (b) whether the conduct is proscribed by a statute,
ordinance or administrative regulation, or (c) whether the conduct is
of a continuing nature or has produced a permanent or long-lasting
effect, and as the actor knows or has reason to know, has a significant
effect upon the public right.'' Id.
\12\ See Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064 (N.D. Ill.
1998); Merrill v. Navegar, Inc., No. S083466, 2001 Cal. LEXIS 4945
(Aug. 6, 2001).
\13\ See Merrill, 2001 Cal. LEXIS 4945; Halliday v. Sturm, Ruger &
Co., 770 A.2d 1072 (Md. Ct. Spec. App. 2001); Richman v. Charter Arms
Corp., 571 F. Supp. 192 (E.D. La. 1983), rev'd on other grounds sub
nom. Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985). See also
Restatement (Second) of Torts Sec. 519 (1977) (``(1) One who carries on
an abnormally dangerous activity is subject to liability for harm to
the person; land or chattels of another resulting from the activity,
although he has exercised the utmost care to prevent the harm. (2) This
strict liability is limited to the kind of harm, the possibility of
which makes the activity abnormally dangerous.''). Id.
\14\ See Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988).
\15\ Bojorquez v. House of Toys Inc., 62 Cal. App. 3d 930, 934
(Cal. Ct. App. 4th Dist. 1976).
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In States that permit a negligence cause of action in a
product liability suit, plaintiffs have begun to claim that the
manufacturer breached its duty of reasonable care by marketing
products that carry a risk of criminal misuse. In the case of
firearms, courts have refused to impose such a duty to the
victim because the manufacture and distribution of firearms is
not per se unlawful.\16\ It has also been held that the open
and obvious dangers associated with the use of guns obviates
any duty owed by the manufacturer. A gun, by its very nature,
must be dangerous and have the capacity to discharge a bullet
with deadly force,\17\ and courts have held that a gun
manufacturer is not an insurer that the product is completely
safe,\18\ nor is it under any duty to design a product
incapable of causing injury.\19\ A gun manufacturer who
produces and markets a weapon that performs as intended and
designed is not liable,\20\ since members of the general public
can presumably recognize the dangers involved in using firearms
and assume the responsibility for their own actions.\21\ A
victim is not entitled to damages simply because he or she was
injured through the use of the manufacturer's product.\22\
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\16\ See Armijo v. Ex Cam Inc., 843 F.2d 406 (10th Cir. 1988)
(affirming holding of no duty not to sell firearms simply because of
potential for criminal misuse and stating ``mere fact that a product is
capable of being misused to criminal ends does not render the product
defective''); Caveny v. Raven Arms Co., 665 F. Supp. 530, 533 (S.D.
Ohio 1987) (``difficult to conceive of a method of distribution by
which handgun manufacturers could avoid the sale of its product to all
potential misusers``).
\17\ See Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D.
Tex. 1985) (applying Texas law).
\18\ See Taylor v. Gerry's Ridgewood, Inc., 490 N.E.2d 987 (3d
Dist. 1986); Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D.
Tex. 1985) (applying Texas law).
\19\ See Taylor v. Gerry's Ridgewood, Inc., 490 N.E.2d 987 (3d
Dist. 1986); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1275 (5th Cir.
1985), reh'g denied, 768 F.2d 1350 (5th Cir. 1985) (fact that handgun
was small and, therefore, concealable is not something that is wrong
with the product that would trigger liability, since the product
functioned precisely as it was designed to); McCarthy v. Sturm, Ruger &
Co., Inc., 916 F. Supp. at 371 (risk associated with hollow-point
bullets arises from the function of the product, not any defect; thus,
risk/utility analysis is inappropriate); Caveny v. Raven Arms Co., 665
F. Supp. 530, 532 (S.D. Ohio 1987) (risk/utility standard not
applicable when product functioned properly).
\20\ See California. Moore v. R.G. Industries, Inc., 789 F.2d 1326
(9th Cir. 1986) (applying California law); Florida. Trespalacios v.
Valor Corp. of Florida, 486 So. 2d 649 (Fla. Dist. Ct. App. 3d Dist.
1986); Georgia. Rhodes v. R.G. Industries, Inc., 325 S.E.2d 465 (1984);
Massachusetts. Bolduc v. Colt's Mfg. Co., Inc., 968 F. Supp. 16
(D.Mass. 1997) (applying Massachusetts law; the decedent had
deliberately pointed the pistol at his own head and pulled the
trigger).
\21\ See Rhodes v. R.G. Industries, Inc., 325 S.E.2d 465 (1984);
Taylor v. Gerry's Ridgewood, Inc., 490 N.E.2d 987 (3d Dist. 1986).
\22\ See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200
(7th Cir. 1984) (applying Illinois law).
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The sale of a firearm merely furnishes the condition for a
crime and, as a matter of law, there can be no finding of
proximate cause in an action brought on behalf of a victim
against the seller of the firearm used in the crime.\23\ In
addition, any criminal misuse of a firearm that is not
reasonably foreseeable is an intervening,\24\ or an independent
superseding cause,\25\ which the manufacturer of a nondefective
weapon has no duty to anticipate\26\ or prevent.\27\ Courts
have also held that the risk of intentional criminal misuse of
``Saturday Night Specials''--generally characterized by short
barrels, light weight, easy concealability, low cost, use of
cheap quality materials, poor manufacture, inaccuracy and
unreliability \28\--does not give rise to liability,\29\ as
this risk is not great enough to outweigh any potential
societal benefit of the product.\30\
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\23\ See Quiroz v. Leslie Edelman of N.Y., Inc., 638 N.Y.S.2d 154
(2d Dep't 1996).
\24\ See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200
(7th Cir. 1984) (applying Illinois law); Eichstedt v. Lakefield Arms
Ltd., 849 F. Supp. 1287 (E.D. Wis. 1994) (applying Wisconsin law).
\25\ See Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064 (N.D. Ill.
1998) (applying Illinois law); Davis v. McCourt, 226 F.3d 506 (6th Cir.
2000) (applying Michigan law).
\26\ See Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp.
1206 (E.D. Ky. 1973) (applying Kentucky law).
\27\ See Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649
(Fla. Dist. Ct. App. 3d Dist. 1986).
\28\ See Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (1985).
\29\ See King v. R.G. Industries, Inc., 451 N.W.2d 874 (1990).
\30\ See Moore v. R.G. Industries, Inc., 789 F.2d 1326 (9th Cir.
1986) (applying California law); Armijo v. Ex Cam, Inc., 656 F. Supp.
771 (D.N.M. 1987), decision aff'd on other grounds, 843 F.2d 406 (10th
Cir. 1988) (applying New Mexico law).
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Handgun manufacturers historically have been found, and
generally continue to be found, to have no duty to third-party
victims of firearm misuse,\31\ such as criminal or accidental
misuse.\32\ The court in City of Philadelphia v. Beretta held
that the question of whether the handgun manufacturers were the
appropriate defendants, as well as their remoteness from the
harm, weighed against the imposition of a duty.\33\ In First
Commercial Trust Co. v. Lorcin Engineering, Inc., the Arkansas
Supreme Court held that handgun manufacturers ``owed no legal
duty'' to shooting victims.\34\ In Armijo v. Ex Cam, Inc., a
case arising out of the criminal misuse of a handgun, the Tenth
Circuit held that because the State legislature had not made
distribution of handguns illegal, the manufacturer had no
``duty'' to refrain from selling its product.\35\ In Leslie v.
United States, the United States District Court for the
District of New Jersey held, in a lawsuit against an ammunition
manufacturer, that handgun and ammunition manufacturers ``owe
no duty to . . . prevent their misuse by criminals.'' \36\
Furthermore, a Louisiana court also held that gun manufacturers
have no duty to abstain from the legal manufacturing and
selling of guns.\37\ The New York Court of Appeals, in
responding to a certified question from the Second Circuit has
concluded that handgun manufacturers do not owe a duty of
reasonable care in the marketing and distribution of
handguns.\38\
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\31\ See Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.
1988); Caveny v. Raven Arms Co., 665 F.Supp. 530, 536 (S.D. Ohio 1987);
First Commercial Trust v. Lorcin Eng'g, Inc., 900 S.W.2d 202, 205 (Ark.
1995); Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App. 1989).
\32\ Randy R. Koenders, Annotation, Products Liability: Sufficiency
of Evidence to Support Product Misuse Defense in Actions Concerning
Weapons and Ammunition, 59 A.L.R. 4th 102 (2000).
\33\ See City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp.
2d 882, 902 (E.D. Pa. 2000).
\34\ Lorcin, 900 S.W.2d at 203.
\35\ Armijo, 843 F.2d at 407.
\36\ Leslie v. United States, 986 F. Supp. 900, 911 (D.N.J. 1997).
\37\ See Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App.
1989).
\38\ See Hamilton v. Beretta U.S.A. Corp., 96 N.Y. 2d 222, 230-31
(2001), answering certified questions Hamilton v. Accu-Tek, 62 F. Supp.
2d 802 (E.D.N.Y. 1999); Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36,
43 (2d Cir. 2000), certifying questions to State court Hamilton v.
Accu-Tek, 62 F. Supp. 2d 802 (E.D.N.Y. 1999).
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As these cases demonstrate, the absence of a special
relationship between criminal third parties and manufacturers
means that negligence claims should be dismissed. Handgun
manufacturers have no duty to control the conduct of third
parties.\39\ The judge in Ganim v. Smith & Wesson, a case
brought by the City of Bridgeport against the firearms
industry, explained that ``calculating the impact of gun
marketing on teen suicide and diminution of property values in
Bridgeport would create insurmountable difficulties in damage
calculation.'' \40\ The judge asserted that Bridgeport ``cannot
seriously maintain that reasonable certainty in calculating
their damage claims is within the realm of possibility.'' \41\
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\39\ See City of Cincinnati v. Beretta U.S.A. Corp., No. C-990729,
2000 Ohio App. LEXIS 3601, at *15 (Ohio Ct. App. Aug. 11, 2000); see
also Order on Pending Motion to Dismiss at 6, Penelas v. Arms Tech.,
Inc., 778 So. 2d 1042 (Fla. Dist. Ct. App. 2001) (No. 99-01941 CA06)
(holding that under Florida law, no duty is imposed on handgun
manufacturers to protect others).
\40\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999
Conn. Super. LEXIS 3330 at *29 (Conn. Super. Ct. Dec. 10, 1999)
(dismissed for lack of subject matter jurisdiction).
\41\ Id. at *30.
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Every test for product defect, from ancient negligence
theory to the most recent formulation contained in the
Restatement (Third) of Torts: Products Liability, rests upon a
foundation of personal responsibility in which a product may
not be defined as defective unless there is something ``wrong''
with it. Oliver Wendell Holmes as early as 1894 posed the
question of firearms manufacturers' liability: ``[I]f notice so
determined is the general ground [upon which liability may
rest], why is not a man who sells fire-arms answerable for
assaults committed with pistols bought of him, since he must be
taken to know the probability that, sooner or later, some one
will buy a pistol of him for some unlawful end? . . . The
principle seems to be pretty well established, in this country
at least, that every one has a right to rely upon his fellow-
men acting lawfully. . . .'' \42\ Thus, Holmes rejected the
notion of gun sellers' liability because of the intervening
criminal act of another, and the ``wrong'' that he saw was that
of the assailant, not the gun dealer.\43\ As the Supreme Court
has stated, quoting James Madison in New York Times Co. v.
Sullivan, ``Some degree of abuse is inseparable from the proper
use of every thing. . . .'' \44\
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\42\ Oliver Wendell Holmes, ``Privilege, Malice, and Intent,'' 1894
Harv.L. Rev. 1, 10 (1894).
\43\ See id. Indeed, very few offenders obtain their guns from
legitimate gun dealers. According to the 1997 Survey of State Prison
Inmates, for 80% of those possessing a gun, the source of the gun was
family, friends, a street buy, or an illegal source. See Caroline Wolf
Harlow, Bureau of Justice Statistics Special Report. ``Firearms Use by
Offenders'' (November 2001, NCJ 189369) at 1. See also U.S. Department
of Justice, Bureau of Justice Statistics, Firearms and Crime
Statistics, http://www.ojp.usdoj.gov/bjs/guns.htm.
\44\ 376 U.S. 254, 271 (1964) (quoting James Madison). Essentially
the same point was made by the Seventh Circuit, in a frequently-cited
patent law case. See Fuller v. Berger, 120 F. 274 (7th Cir.1903), cert.
denied 193 U.S. 668. Discussing ``utility,'' for patent law purposes,
the Court explained how the occasional misuse of a product does not
negate its utility. To begin with, the court noted that the existence
of a patent grant was ``prima facie proof of utility.'' Fuller, 120 F.
at 275. The court then asked whether evidence that the patented device
``has been used for pernicious purposes'' could prove that the device
``is incapable of serving any beneficial end?'' Id. To answer the
question, the court adopted a conclusion from a leading patent
treatise, which the court then quoted at length:
An important question, relevant to utility in this aspect,
may hereafter arise and call for judicial decision. It is
perhaps true, for example, that the invention of the Colt's
revolver was injurious to the morals, and injurious to the
health, and injurious to the good order of society. That
instrument of death may have been injurious to morals, in
tending to tempt and to promote the gratification of
private revenge. It may have been injurious to health, in
that it is very liable to accidental discharge, and thereby
to cause wounds, and even homicide. It may also have been
injurious to good order, especially in the newer parts of
the country, because it facilitates and increases private
warfare among frontiersman. On the other hand, the
revolver, by furnishing a ready means of self-defense, may
sometimes have promoted morals and health and good order.
By what test, therefore, is utility to be determined in
such cases? Is it to be done by balancing the good
functions with the evil functions? Or is everything useful
within the meaning of the law, if it is used (or is
designed and adopted to be used) to accomplish a good
result, though in fact it is oftener used (or is as well or
even better adapted to be used) to accomplish a bad one? Or
is the utility negatived by the mere fact that the thing in
question is sometimes injurious to morals, or to health, or
to good order? The third hypothesis cannot stand, because
it would be fatal to patents for steam engines, dynamos,
electric railroads, and indeed many of the noblest
inventions of the nineteenth century. The first hypothesis
cannot stand, because if it could, it would make the
validity of patents to depend on a question of fact to
which it would often be impossible to give a reliable
answer. The second hypothesis is the only one which is
consistent with the reason of the case, and with the
practical construction which the courts have given to the
---------------------------------------------------------------------------
statutory requirement of utility.
Fuller, 120 F. at 275-76 (quoting Walker, Sec. 82, 3d ed.).
Finally, the remoteness doctrine has been widely accepted
by the courts as a bar to claims brought by public entities,
and courts have dismissed complaints by public entities based
on this threshold consideration. For example, in United States
v. Standard Oil Co.,\45\ the United States government sought to
recover the cost of hospitalization and support of a soldier
injured by Standard Oil's negligence. The Court determined that
the government was not entitled to recover at common law
because its injury was remote and indirect.\46\ The Court
further noted that while Congress could enact a statute
permitting the government to recover for remote injuries, it
had chosen not to do so despite the fact that it was aware that
``the Government constantly sustains losses through the
tortious or even criminal conduct of persons interfering with
Federal funds, property and relationships.'' \47\ Similarly,
courts have dismissed city and county complaints seeking
recovery at common law for injuries to remote third
parties.\48\ As one commentator has described the issue of
remoteness:
---------------------------------------------------------------------------
\45\ 332 U.S. 301 (1947).
\46\ See id. at 304.
\47\ Id. at 315.
\48\ See City of Birmingham v. American Tobacco Co., 10 F. Supp.2d
1257, 1259-62 (N.D. Ala. 1998) (holding that City has no right to
recover the costs of medical care for smoking-related illnesses from
third-party tortfeasors); County of Los Angeles v. R.J. Reynolds
Tobacco Co., No. 707651 (Cal. Super. Dec. 23, 1997) (County's health
care expenses for treatment of smoking-related illnesses was ``purely
derivative''of injuries to smokers).
Gun manufacturers are licensed by the Federal
Government. They are permitted to sell their guns only
to distributors and wholesalers, all of whom are also
licensed. The lawsuits commonly acknowledge that these
transfers are conducted legally; no gun maker would
risk its corporate livelihood by selling to unlicensed
distributors. Moreover, these legal transactions are
the last stage in the process in which the
manufacturers exercise any control over their products.
Once the guns are transferred, the makers have nothing
to say about where they go. But the guns still have far
to travel. The distributors and wholesalers then supply
the retailers--your local gun store. Again, all the
parties to these transactions are licensed, it is
commonly acknowledged that nearly all of these
transactions, too, are carried out legally. Gun stores
then sell to individuals. Before they do, they are
required by the Federal Handgun Control and Violence
Protection Act (the Brady Law) to conduct a background
check on a prospective buyer. If the check reveals that
the buyer is, say, a convicted felon, the store must
decline the sale . . . [I]sn't this [remoteness] far
enough? Gun makers are Federal licensees selling a
legal product. The only sales in which they participate
are to other Federal licensees, after which they can
exercise no control over their product. Any individual
gun will usually pass, legally, through at least two
more hands (a wholesaler's and a retailer's), and often
several more, before being involved (if ever) in an
illegal sale. The manufacturer has nothing to say about
any of this. And of course, for any damage to be done,
some willful criminal must act.\49\
---------------------------------------------------------------------------
\49\ Barton Aronson, ``Are Lawsuits Against Gun Makers Really the
Best Way to Address the Huge Costs of Gun Violence?'' http://
writ.news.findlaw.com/aronson/20030319.html (March 19, 2003).
---------------------------------------------------------------------------
VARIOUS PUBLIC ENTITIES HAVE RECENTLY PRESSED COURTS TO REJECT THE
COMMON-SENSE MAJORITY RULE, TO BREACH THE SEPARATION OF POWERS, AND TO
HURDLE SOCIETY DOWN A SLIPPERY SLOPE
Recent litigation against the tobacco industry has
encouraged public entities to bring suit against the firearms
industry.\50\ Such lawsuits are based on novel claims that
invite courts to dramatically break from bedrock principles of
tort law and expose firearm manufacturers to unprecedented and
unlimited liability exposure. D.C. Superior Court Judge Cheryl
Long recently dismissed such claims against the firearms
industry, writing that ``[t]he plaintiffs' myriad claims herein
are burdened with many layers of legal deficiencies,'' \51\ but
other courts have allowed such claims to proceed. The following
are among the municipalities that have filed suit: Atlanta,
Boston, Bridgeport, City of Camden, County of Camden, Chicago,
Cincinnati, Cleveland, Detroit, Wayne County, Michigan, Gary,
Indiana, City of Los Angeles, County of Los Angeles, Miami-Dade
County, Newark, New Orleans, Philadelphia, San Francisco, St.
Louis, and Wilmington.\52\ According to one commentator,
``Since 1997, more than 30 cities and counties have sued
firearm manufacturers in an attempt to force manufacturers to
change the way they make and sell guns.'' \53\ However, gun
manufacturers do not have the financial capacity of the
cigarette companies whose sales average $45 billion
annually.\54\ In contrast, the gun industry grosses only $1.5
billion a year.\55\ It has been estimated that tobacco
companies spend approximately $600 million a year defending
against suits brought by the States.\56\ Gun companies are
incapable of financing a similar defense.\57\ In fact, John
Coale, one of the personal injury lawyers suing the firearms
industry, told the Washington Post, ``The legal fees alone are
enough to bankrupt the industry.'' \58\ If the manufacturers
are forced into bankruptcy, potential plaintiffs asserting
traditional claims concerning a product with a manufacturing
defect will have no recourse and will be unable to recover more
than pennies on the dollar, if that, in Federal bankruptcy
court.\59\ Further, firearms have a significant impact on the
economy in the United States. More than twenty million
Americans participate in various shooting sports each year,
accounting for more than $30 billion in economic activity as
well as 986,000 jobs.\60\ Because the gun industry has very
narrow profit margins, it is in danger of being overwhelmed by
the cost of defending itself against these suits.\61\
---------------------------------------------------------------------------
\50\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999
Conn. Super. LEXIS 3330 (Conn. Super. Ct. Dec. 10, 1999). The judge in
the lawsuit brought by the City of Bridgeport, Connecticut, observed
that the cities ``have envisioned . . . the dawning of a new age of
litigation during which the gun industry, liquor industry, and
purveyors of `junk' food would follow the tobacco industry in
reimbursing government expenditures. . . .''Id. at *14.
\51\ District of Columbia v. Beretta U.S.A. Corp., et al., 2002 WL
31811717 (D.C. Super.), at *2.
\52\ Complaint, City of Atlanta v. Smith & Wesson Corp., 543 S.E.2d
16 (Ga. 2001) (No. 99VS0149217J); Complaint, City of Boston v. Smith &
Wesson Corp., 12 Mass. L. Rptr. 225 (Mass. Super. Ct. 2000) (No. 1999-
02590); Complaint, Ganim v. Smith & Wesson Corp., No. X06 CV
990153198S, 1999 Conn. Super. LEXIS 333 (Conn. Super. Ct. 1999);
Complaint, City of Camden v. Beretta U.S.A. Corp., No. L-451099 (N.J.
Super. Ct. filed June 21, 1999); Complaint, Camden County Bd. of Chosen
Freeholders v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245 (D.N.J. 2000)
(No. 99 CV 2518); Complaint, City of Chicago v. Beretta U.S.A. Corp.,
No. 98 CH 15596 (Ill. Cir. Ct. filed Apr. 7, 1999); Complaint, City of
Cincinnati v. Beretta U.S.A. Corp., No. C-990729, 2000 Ohio App. LEXIS
3601 (Ohio Ct. App. Aug. 11, 2000); Complaint, White v. Smith & Wesson,
97 F. Supp. 2d 816 (N.D. Ohio 2000) (No. 99 CV 1134); Complaint, Archer
v. Arms Tech., Inc., 72 F. Supp. 2d 784 (E.D. Mich. 1999) (No.99-912658
NZ); Complaint, McNamara v. Arms Tech., Inc., 71 F. Supp. 2d 720 (E.D.
Mich. 1999) (No. 99 912 662); Complaint, City of Gary v. Smith & Wesson
Corp., No. 45D05-005-CT-243 (formerly No. 4502-9908-CT-0355) (Ind.
Super. Ct. filed Aug. 27, 1999); Complaint, California v. Arcadia Mach.
& Tool, Inc., No. BC210894 (Cal. Super. Ct. filed May 25, 1999)
(including plaintiffs City of Los Angeles, Compton, Inglewood, and West
Hollywood); Complaint, California v. Arcadia Mach. & Tool, Inc., No.
BC214794 (Cal. Super. Ct. filed Aug. 6, 1999); Complaint, Penelas v.
Arms Tech., Inc., 778 So. 2d 1042 (Fla. Dist. Ct. App. 2001) (No. 99-
01941 CA-06); Complaint, Sharpe v. Arcadia Mach. & Tool, Inc., No. ESX-
L-6059-99 (N.J. Super. Ct. filed June 9, 1999); Complaint, Morial v.
Smith & Wesson Corp., 785 So. 2d 1 (La. 2001) (No. 98-18578 Div. M);
Complaint, City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp.
2d 882 (E.D. Pa. 2000) (2000-CV-2463); Complaint, California v. Arcadia
Mach. & Tool, Inc., No. 303753 (Cal. Super. Ct. filed May 25, 1999)
(including plaintiffs San Francisco, Berkeley, Sacramento, San Mateo
County, Oakland, East Palo Alto, County of Alameda); Complaint, City of
St. Louis v. Cernicek, No. CV-992-01209 (Mo. Cir. Ct. filed Apr. 30,
1999); Complaint, Sills v. Smith & Wesson Corp., No. 99C-09-283-FSS,
2000 Del. Super. LEXIS 444 (Del. Super. Ct. Dec. 1, 2000). The Georgia
legislature, in response to Atlanta's lawsuit, became the first State
to pass a statute preempting handgun manufacturer liability lawsuits by
cities. See Ga. Code Ann. Sec. 16-11-184 (2000). At least seventeen
States have since followed Georgia's lead with statutes to prohibit
municipalities from suing handgun manufactures. Those States that have
passed municipal lawsuit bans are: Arizona, Arkansas, Colorado,
Kentucky, Louisiana, Maine, Michigan, Montana, Nevada, Oklahoma,
Pennsylvania, Tennessee, Texas, Utah, and Virginia. See Ariz. Rev.
Stat. Sec. 12-714 (2000); Ark. Code Ann. Sec. 14-16-504(b)(2) (Michie
Supp. 1999); Colo. Rev. Stat. Sec. Sec. 13-21-501 to -505 (2000); Ga.
Code Ann. Sec. 16-11-184 (2000); 2000 Ky. Acts 213; La. Rev. Stat. Ann.
Sec. 40:1799 (West 2000); Me. Rev. Stat. Ann. tit. 30-A, Sec. 2005
(West 1999); Mich. Comp. Laws Sec. 600.294 (2000); Mont. Code Ann.
Sec. 7-1-115 (1999); Nev. Rev. Stat. Sec. 12.107 (2000); Okla. Stat.
tit. 21 Sec. 1289.24a (1999); Tenn. Code Ann. Sec. 39-17-1314 (1999);
Tex. Civ. Prac. & Rem. Code S128.001 (2000); Utah Code Ann. Sec. 78-27-
64 (2000); Va. Code Ann. Sec. 15.2-915.1 (Michie 2000). In addition,
the States of Alaska and South Dakota have exempted gun manufacturers
from all lawsuits. Alaska Stat. Sec. 09.65.155 (Michie 2000); S.D.
Codified Laws Sec. 21-58-1 (Michie 2000). The South Dakota statute
``finds that the unlawful use of firearms, rather than their lawful
manufacture, distribution, or sale, is the proximate cause of any
injury arising from their unlawful use.'' S.D. Codified Laws Sec. 21-
58-1 (Michie 2000).
\53\ H. Sterling Burnett, ``Firearms Cease-Fire?'' The Washington
Times (March 21, 2003) at A21.
\54\ See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits,
The New York Times (March 21, 1999) at A32.
\55\ See William C. Symonds et al., ``Under Fire,'' Business Week
(August 16, 1999) at 63.
\56\ See Fox Butterfield, ``Lawsuits Lead Gun Maker to File for
Bankruptcy,'' The New York Times (June 24, 1999) at A14.
\57\ Id.
\58\ Sharon Walsh, ``Gun Industry Views Pact as Threat to Its
Unity,'' The Washington Post (March 18, 2000) at A10.
\59\ Id.
\60\ See SAAMI: Sporting Arms and Ammunition Manufacturers'
Institute, Inc., Market Size and Economic Impact (relying on a compilation of data provided by the
U.S. Fish and Wildlife Agencies, the National Shooting Sports
Foundation and The National Sporting Goods Association). SAAMI is a
firearms trade association that was founded in 1926 and participates in
establishing industry standards. See id.
\61\ See Bill Sammon, ``Gun Makers Halt Settlement Talks with
Cities; Blame White House's `Politically Motivated' Intervention,'' The
Washington Times (January 20, 2000), at A1. The Clinton
Administration's filing of a similar lawsuit spurred Smith & Wesson to
settle the case with eighteen of those cities. See ``Philadelphia Joins
Cities That Dropped Smith & Wesson Suits,'' The Wall Street Journal
(June 5, 2000), at B18.
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One industry that was forced to the brink of extinction by
excessive liability awards and virtually unlimited retroactive
liability is the general aviation industry.\62\ The United
States had developed a leading position in general aviation.
However, during the 1980's and early 1990's, the American
general aviation industry deteriorated rapidly.\63\ General
aviation aircraft production plummeted between 1978 and 1991
from 18,000 planes to less than 900.\64\ The manufacture of
single engine piston aircraft fell to only 555 by 1993.\65\
Only when Congress passed Federal tort statute of repose reform
directed at saving the aviation industry was the industry
rescued from the effect of excessive retroactive liability.\66\
---------------------------------------------------------------------------
\62\ See generally Patrick J. Shea, Solving America's General
Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform,
80 Cornell L. Rev. 747 (1995).
\63\ Patrick J. Shea, ``Solving America's General Aviation Crisis:
The Advantages of Federal Preemption Over Tort Reform,'' 80 Cornell L.
Rev. 747 (1995) at 748.
\64\ See id.
\65\ See id.
\66\ See 49 U.S.C. Sec. Sec. 40101-40120.
---------------------------------------------------------------------------
The various public entities that have brought suit against
the gun industry in recent years have raised novel claims that
seek reimbursement of government expenses--including costs for
police protection, emergency and medical services, and pension
benefits--associated with gun-related crimes. These claims are
based on tenuous claims of causality in which gun and
ammunition manufacturers are many steps removed from the harm
alleged: the manufacturers produce the firearms; they sell them
to federally licensed distributors; the distributors sell them
to federally licensed dealers; some of the firearms are
diverted by third parties into an illegal gun market; these
firearms are obtained by people who are not licensed to have
them; the firearms are then used in criminal acts that do harm;
and the city or county must spend resources combating or
responding to those criminal and unlawful acts.
Of the negligence actions against firearms manufacturers by
municipalities nationwide, approximately half have been allowed
to proceed. They include suits by Boston; \67\ Cleveland;
Detroit; Newark, New Jersey; Wilmington, Delaware; and a
consortium of California cities including Los Angeles, San
Francisco, Sacramento and Oakland. Among the dismissed cases,
some of which remain active on appeal, are those by the State
of New York; New Orleans; Bridgeport, Connecticut; Gary,
Indiana; Miami; and Camden County, New Jersey. The suit in
Cincinnati, while dismissed by lower courts, was recently
reinstated by the Ohio Supreme Court.\68\
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\67\ In March, 2002, the City of Boston dropped its suit against
firearms manufacturers. See Editorial, ``Mayor was Right to Drop Gun
Case,'' The Boston Herald (March 29, 2002). In its dismissal, the City
of Boston stated that ``During the litigation the City has learned that
members of the firearm industry have a longstanding commitment to . . .
reducing criminal misuse of firearms.'' In voluntarily dismissing its
case, the City of Boston also stated that ``The City and the Industry
have now concluded that their common goals can be best achieved through
mutual cooperation and communication, rather than through litigation,
which has been expensive to both Industry and taxpayers, time-consuming
and distracting in a time of national crisis.'' Exhibit A to
Plaintiff's the City of Boston's and the Boston Public Health
Commission, Unopposed Motion to Dismiss (March 27, 2002).
\68\ See ``Nation in Brief: Ohio Supreme Court Reinstates Lawsuit
Against Gunmakers,'' The Washington Post (June 13, 2002) at A8.
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However, the relationship between a tortious act and actual
injury historically must be direct, not remote.\69\ The
earliest American example of this concept occurred in Anthony
v. Slaid.\70\ In that case, the plaintiff Anthony contracted to
assist the poor by funding medical care and other
assistance.\71\ The defendant Slaid's wife assaulted and beat
one of the town paupers, resulting in expenses for his medical
care and financial support, for which Anthony became
responsible under his contract.\72\ Just as various public
entities have alleged with reference to firearm manufacturers,
Anthony charged that because of the criminal acts of Slaid's
wife, he ``was put to increased expense for [the poor person's]
cure and support.'' \73\ Anthony sued Mrs. Slaid's husband as
the then-legally-liable party, seeking reimbursement of his
increased costs.\74\ The Massachusetts Supreme Court rejected
Anthony's claim, holding ``[t]hat the damage is too remote and
indirect,'' because it arose ``not by means of any natural or
legal relation between the plaintiff and the party injured . .
. but by means of the special contract by which he had
undertaken to support the town paupers.'' \75\ The court
reasoned that if Anthony were permitted to recover, a town
might always seek recovery whenever ``an assault is committed,
or other injury is done to the person or property of a town
pauper, or of an indigent person who becomes a pauper.'' \76\
The court then sustained dismissal of Anthony's complaint.\77\
Soon thereafter, the United States Supreme Court applied the
remoteness doctrine to bar a plaintiff's claims in Insurance
Co. v. Brame.\78\ In that case, Craven McLemore died after the
defendant Brame did ``wilfully shoot . . . and inflict upon him
a mortal wound,'' causing Mobile Life Insurance Company to pay
out the proceeds of a life insurance policy.\79\ Mobile then
sued Brame for reimbursement of the insurance proceeds. Brame
defended this claim on the grounds that because the ``loss is
the remote and indirect result merely of the act charged,'' the
insurance company had no claim against him.\80\ Finding that
the relevant cases were ``substantially uniform against the
right of recovery,'' \81\ the Supreme Court held that ``The
relation between the insurance company and McLemore, the
deceased, was created by a contract between them, to which
Brame was not a party. The injury inflicted by him was upon
McLemore, against his personal rights; that it happened to
injure the plaintiff was an incidental circumstance, a remote
and indirect result, not necessarily or legitimately resulting
from the act of killing.'' \82\
---------------------------------------------------------------------------
\69\ See Holmes v. Securities Investor Protection Corporation, 503
U.S. 258, 269 (1992).
\70\ 52 Mass. 290 (1 Met. 1846).
\71\ See id. at 290-91.
\72\ See id. at 291.
\73\ Id.
\74\ See id.
\75\ Id.
\76\ Id.
\77\ See id.
\78\ 95 U.S. 754, 759 (1877).
\79\ Id. at 754.
\80\ Id. at 756.
\81\ Id. at 758.
\82\ Id. See also Rockingham Ins. Co. v. Bosher, 39 Me. 253, 257
(1855) (barring insurer from recovering, from arsonist, the burned
building's loss of value because the dimunition in value was an
``indirect consequence''of the fire).
---------------------------------------------------------------------------
Much more recently, the United States Supreme Court
reaffirmed this principle in Holmes v. Securities Investor
Protection Corp.\83\ In Holmes, an inside trader engaged in
stock manipulation, which led to the liquidation of two
stockbrokers whose customers the Securities Investor Protection
Corp. (``SIPC'') was required to compensate.\84\ SIPC filed
Racketeer Influenced and Corrupt Organizations (``RICO'')
claims to recoup from the inside trader those amounts it had
paid to the brokers' clients.\85\ The Court found that while
the inside trader's tortious acts had caused cognizable injury
to the brokers, the link between the insider's acts and the
brokers' customers' alleged losses was too remote to permit
SIPC to recover from the insider.\86\ Although a direct
connection could be drawn from the insider's acts to the SIPC's
expense, considerations of proximate cause prevented the
assignment of endless layers of liability.\87\ As the Supreme
Court stated, ``complaints of harm flowing merely from
misfortunes visited upon a third person by defendant's acts . .
. stand at too remote a distance to recover.'' \88\ As Justice
Scalia noted, ``'[F]or want of a nail, a kingdom was lost' is a
commentary on fate, not the statement of a major cause of
action against a blacksmith.'' \89\
---------------------------------------------------------------------------
\83\ 503 U.S. 258 (1992).
\84\ See id. at 261-62.
\85\ See id. at 263.
\86\ See id. at 271.
\87\ See id. at 276.
\88\ See id. at 268.
\89\ Id. at 287 (Scalia, J., concurring) (quoting Associated Gen.
Contractors v. Carpenters, 459 U.S. 519, 536 (1983)).
---------------------------------------------------------------------------
To assist courts in assessing whether a claim is too remote
to permit a suit to proceed, the Holmes Court developed a
three-pronged test to address whether: (1) there are more
direct victims of the alleged wrongdoing who can be expected to
act as ``private attorneys general;'' (2) because it will be
difficult to apportion damages, the court will be forced to
``adopt complicated apportionment rules'' to avoid multiple
recoveries; and (3) because the causal connection is
attenuated, it will be difficult to define what proportion of
the plaintiff's damages are attributable to the defendant's
conduct.\90\ These principles cut sharply against the public
entities' firearm lawsuits. First, where the public entities'
alleged injuries flow from physical injury, there are many more
directly affected plaintiffs to pursue putative claims. The
fact that these individuals may not be able to seek recovery
for the costs of certain public services borne by the city does
not contradict the fact that they are the more directly injured
parties. Second, the public entities' firearm lawsuits would
force the same type of complicated damages apportionment that
Holmes rejects. If cities may sue to recover the costs of
providing services to individuals injured by firearm use, so
can insurers, benefit funds, direct service providers such as
hospitals, the injured parties' employers, and all who rely
upon the injured party financially. In order to avoid multiple
recoveries for a single injury, courts would have to require
the intervention of multiple layers of parties into every suit.
The resulting effort to apportion damages would inevitably
result in arbitrary and unfair results. Finally, the
circumstances in which some cities now seek to recover costs
would pose significant apportionment difficulties of a
different kind. In seeking to recover the costs of public
services used responding to criminal, tortious, and accidental
shootings, the cities bringing such lawsuits raise significant
issues over apportionment of liability not just between firearm
manufacturers, distributors, retailers, and resellers, but also
between the shooter, the injured party for contributory
negligence, and the public entities themselves. Clearly, the
cause of violent crime is a complex, multifaceted problem that
includes economic, social, political, geographic, demographic,
and cultural components. Cities which have failed to provide an
adequate level of law enforcement, or counties which have
failed to provide adequate correctional programs could find
themselves held accountable for a portion of the very damages
they seek. There are many other parties who could be alleged to
be at ``fault,'' including inadequate school systems, drug
dealers, overburdened courts, parents, and violent offenders
themselves. It would be an insupportable burden on the courts
to handle the apportionment of liability in this unmanageably
complex context.
---------------------------------------------------------------------------
\90\ Id. at 268.
---------------------------------------------------------------------------
The remoteness doctrine articulated in Anthony, Brame, and
Holmes has been embraced by the Second,\91\ Third,\92\
Fifth,\93\ Sixth,\94\ Seventh,\95\ and Ninth\96\ Circuit Courts
of Appeals, as well as by multiple district courts,\97\ to bar
claims brought by union health and welfare funds to recover
medical expenses incurred on behalf of beneficiaries of the
funds due to tobacco-related illnesses. Since April 1999 alone,
at least six Federal courts of appeals\98\ and multiple Federal
district courts\99\ have held--in cost-recovery cases nearly
identical in theory to those brought by cities and
municipalities against firearm manufacturers--that the
remoteness doctrine bars damage claims by health benefits funds
and other remote third-party payors of medical or other costs,
as a matter of law. A small number of district court opinions
have disagreed.\100\ However, subsequent decisions have
effectively rejected or limited these minority opinions and
have reasserted the importance of the remoteness doctrine in
those jurisdictions.\101\
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\91\ See Laborers Local 17 Health & Benefit Fund v. Philip Morris,
Inc., 191 F.3d 229, passim (2d Cir. 1999), reh'g and reh'g en banc
denied (Aug. 6, 1999), as amended (Aug. 18, 1999), and cert. denied,
120 S. Ct. 799 (January 10, 2000).
\92\ See Steamfitters Local Union No. 420 Welfare Fund v. Philip
Morris, Inc., 171 F.3d 912, 928 (3d Cir. 1999), cert. denied, 120 S.
Ct. 844 (2000).
\93\ See Texas Carpenters Health Benefit Fund v. Philip Morris,
Inc., 199 F.3d 788, 789 (5th Cir. 2000).
\94\ See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir.
1999).
\95\ See International Bhd. of Teamsters Local 734 Health & Welfare
Trust Fund v. Philip Morris, Inc., 196 F.3d 818, 822, 825 (7th Cir.
1999), reh'g denied sub nom. Arkansas Blue Cross & Blue Shield v.
Philip Morris, Inc., No. 98-02612, 1999 WL 592671 (N.D. Ill. Aug. 3,
1999), appeal filed sub nom. Health Care Serv. v. Brown & Williamson
Tobacco Corp., No. 00-1468, 2000 WL 326505 (7th Cir. Mar. 28, 2000).
\96\ See Oregon Laborers-Employers Health & Welfare Trust Fund v.
Philip Morris, Inc., 185 F.3d 957, 963, 964 (9th Cir. 1999), cert.
denied, 120 S. Ct. 789 (2000).
\97\ See, e.g., Laborers & Operating Eng'rs Util. Agreement Health
& Welfare Trust Fund v. Philip Morris, Inc., 42 F. Supp.2d 943, 947 (D.
Ariz. 1999) (dismissing claims because `` `the plaintiff's injuries are
entirely dependent upon injuries sustained by their participants and
beneficiaries, making them at least one step removed from the
challenged harmful conduct' '') (quoting Oregon Laborers-Employers
Health & Welfare Trust Fund v. Philip Morris, Inc., 17 F. Supp.2d 1170,
1179 (D. Or. 1999)); Seafarers' Welfare Plan v. Philip Morris, Inc., 27
F. Supp.2d 623, 628 (D. Md. 1998) (dismissing claims because
``plaintiff's injuries are too remotely caused by the defendants'').
\98\ See Texas Carpenters Health Benefit Fund, 199 F.3d at 789;
International Bhd. of Teamsters Local 734 Health & Welfare Trust Fund,
196 F.3d at 825-26; Oregon Laborers-Employers Health & Welfare Trust
Fund, 185 F.3d at 964; Coyne, 183 F.3d at 496; Steamfitters Local Union
No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 928 (3d Cir.
1999); Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc.,
191 F.3d 229, 244 (2d Cir. 1999), reh'g and reh'g en banc denied (Aug.
6, 1999), as amended (Aug. 18, 1999), and cert. denied, 120 S. Ct. 799
(Jan. 10, 2000).
\99\ See, e.g., Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco
Co., 1999 WL 760527, at *6 (N.D. Cal. Sept. 21, 1999); Rhode Island
Laborers' Health & Welfare Fund v. Philip Morris, Inc., 1999 WL 619064,
at *6-7 (D.R.I. Aug. 11, 1999); Arkansas Carpenters' Health & Welfare
Fund v. Philip Morris, Inc., 75 F. Supp.2d 936 (E.D. Ark. 1999); Hawaii
Health & Welfare Trust Fund v. Philip Morris, Inc., 52 F. Supp.2d 1196,
1199 (D. Haw. 1999); Association of Wash. Pub. Hosp. Dists. v. Philip
Morris, Inc., 79 F. Supp.2d 1219, 1230 (W.D. Wash. 1999).
\100\ See, e.g., Iron Workers Local Union v. Philip Morris, Inc.,
23 F. Supp.2d 771, 784 (N.D. Ohio 1998) (denying defendant's motion to
dismiss based on remoteness doctrine); Blue Cross & Blue Shield v.
Philip Morris, Inc., 36 F. Supp.2d 560, 579 (E.D.N.Y. 1999); City of
St. Louis v. American Tobacco Co., 70 F. Supp.2d 1008, 1014 (E.D. Mo.
1999); SEIU Health & Welfare Fund v. Philip Morris, Inc., 83 F. Supp.
2d 70, 88-89 (D.D.C. 1999).
\101\ For example, Iron Workers Local Union, 23 F. Supp. 2d at 784,
did not survive the Sixth Circuit's subsequent affirmation of the
remoteness doctrine in Coyne v. American Tobacco Co., 183 F.3d 488, 495
(6th Cir. 1999). Blue Cross & Blue Shield v. Philip Morris, Inc., 36 F.
Supp.2d 560, 579 (E.D.N.Y. 1999) also runs contrary to the Second
Circuit's subsequent ruling in Laborers Local 17 Health & Benefit Fund
v. Philip Morris, Inc., 191 F.3d 229 (2d Cir. 1999), and Tobacco/
Governmental Healthcare Costs Litigation, 83 F. Supp.2d 125, 135
(D.D.C. 1999), conflicts with SEIU Health & Welfare Fund, 83 F. Supp.
2d at 88-89.
---------------------------------------------------------------------------
These Federal decisions flow, in turn, from a large body of
State common law dismissing remote and derivative claims as a
matter of law. For example, the Connecticut Supreme Court
followed this rule more than one hundred years ago in the case
of Connecticut Mutual Life Insuance Co. v. New York & New Haven
Railway Co.,\102\ in which an insurer brought a negligence
action against a tortfeasor responsible for the death of its
insured.\103\ The court, relying on Anthony, held that ``the
loss of the plaintiffs [i.e. the value of the life insurance
proceeds], although due to the acts of [the defendants] . . .
was a remote and indirect consequence of the misconduct of the
defendants, and not actionable'' as a matter of law.'' \104\
Thereafter, Connecticut courts have consistently held that a
plaintiff must possess a ``colorable claim of direct injury
[which the complainant] has suffered or is likely to suffer, in
an individual or representative capacity.'' \105\ Likewise, the
common law of other States bars such remote claims.\106\
---------------------------------------------------------------------------
\102\ 25 Conn. 265 (1856).
\103\ See id. at 271.
\104\ Id. at 276-77; see also Fidelity & Cas. Ins. Co. v. Sears,
Roebuck & Co., 199 A. 93, 95-96, 124 Conn. 227 (1938) (insurer could
not recover for injuries sustained by insured's employee as a result of
defendant's negligence).
\105\ Unisys Corp. v. Department of Labor, 600 A.2d 1019, 1022, 220
Conn. 689 (1991).
\106\ See, e.g., Byrd v. English, 43 S.E. 419 (Ga. 1903); Kraft
Chem. Co. v. Illinois Bell Telephone Co., 608 N.E.2d 243 (Ill. App. Ct.
1992); Forcum-James Co. v. Duke Transp. Co., 93 So. 2d 228 (La. 1957);
Brink v. Wabash R.R. Co., 60 S.W. 1058 (Mo. 1901); Holloway v. State,
593 A.2d 716, 719 (N.J. 1991); Cincinnati Bell Tel. v. Straley, 533
N.E.2d 764 (Ohio 1988).
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Several States have enacted statutes giving special
protection to gun manufacturers and sellers after cities and
other government entities began filing lawsuits against the gun
industry in late 1998. Many immunity statutes only limit the
ability of cities, counties, and other local governments to
sue.\107\ Some immunity statutes are broader in scope and
affect the legal rights of private individuals.\108\ But none
do or can address the national problem addressed by H.R. 1036.
---------------------------------------------------------------------------
\107\ See Ala. Code Sec. 11-80-11 (enacted 2000); Ariz. Rev. Stat.
Sec. 12-714 (enacted 1999); Ark. Code Sec. 14-16-504 (enacted 1999);
Fla. Stat. Sec. 790.331 (enacted 2001); Ga. Code Sec. 16-11-184
(enacted 1999); Idaho Code Sec. 5-247 (enacted 2000); Ky. Rev. Stat.
Sec. 65.045 (enacted 2000); La. Stat. Sec. 1799 (enacted 1999); Maine
Rev. Stat. Sec. 2005 (enacted 1999); Mont. Code Sec. 7-1-115 (enacted
1999); Nev. Rev. Stat. Sec. 12.107 (enacted 1999); Okla. Stat.
Sec. 1289.24a (enacted 1999); Pa. Cons. Stat. Sec. 6120 (enacted 1999);
Tenn. Code Sec. 39-17-1314 (enacted 1999); Texas Civil Practice &
Remedies Code Sec. 128.001 (enacted 1999); Utah Code Sec. 78-17-64
(enacted 2000); Va. Code Sec. 15.2-915.1 (enacted 2000).
\108\ See Alaska Stat. Sec. 09.65.155 (enacted 1999) (precluding
civil actions against gun manufacturers and sellers if based on the
lawful sale, manufacture, or design of the gun, but with exceptions for
claims based on a negligent design or manufacturing defect); Cal. Civ.
Code Sec. 1714.4 (enacted 1983) (precluding firearm from being found
defective in products liability action on ground that its benefits do
not outweigh its risks); Colo. Rev. Stat. Sec. Sec. 13-21-501, 13-21-
504.5 (enacted 2000) (precluding tort actions against gun manufacturers
and sellers for any remedy arising from injury or death caused by
discharge of a firearm, but with exceptions for product liability
claims and damages proximately caused by an action in violation of a
statute or regulation); Idaho Code Sec. 6-1410 (enacted 1986)
(precluding firearm from being found defective in products liability
action on ground that its benefits do not outweigh its risks); Indiana
Code Sec. Sec. 34-12-3-1 to -5 (enacted 2001) (barring all actions
based on lawful design, manufacture, marketing, or sale of firearm and
any recovery of damages resulting from criminal or unlawful misuse of
firearm); Ky. Rev. Stat. Sec. 411.155 (enacted 1988) (providing that no
defendant is liable for damages resulting from criminal use of firearm
by third party, unless defendant conspired with or willfully aided,
abetted, or caused the commission of the criminal act, but not limiting
doctrines of negligence or strict liability relating to abnormally
dangerous products or activities or defective products); La. Rev. Stat.
Sec. 2800.60 (enacted 2000) (declaring that gun manufacturers and
sellers are not liable for shooting injuries unless proximately caused
by the unreasonably dangerous construction or composition of the
product, are not liable for unlawful or negligent use of a gun that was
lawfully sold, are not liable for failing to equip guns with magazine
disconnect safeties, loaded chamber indicators, or personalization
devices to prevent unauthorized use, and are not liable for failing to
provide warnings about unauthorized use of firearms or the fact that a
semi-automatic gun may be loaded even when the ammunition magazine is
empty or removed); Md. Code Sec. 36-I (enacted 1988) (providing that
defendant cannot be held strictly liable for damages resulting from
criminal use of firearm by third person unless defendant conspired with
or aided, abetted, or caused commission of criminal act); Michigan
Compiled Laws Annotated Sec. 28.435(7) (enacted 2000) (providing that a
gun dealer is not liable for damages arising from use or misuse of a
gun if the dealer provides a trigger lock or gun case with each gun
sold and complies with all other State and Federal statutory
requirements); Nev. Rev. Stat. Sec. 41.131 (enacted 1985) (stating that
no cause of action exists merely because firearm was capable of causing
serious injury); N.C. Stat. Sec. 99B-11 (enacted 1987) (precluding
firearm from being found defective in products liability action on
ground that its benefits do not outweigh its risks); N.D. Code Sec. 32-
03-54 (enacted 2001) (providing that defendant cannot be held liable
for lawful manufacture or sale of firearm, except in action for deceit,
unlawful sale, or where transferor knew or should have known recipient
would engage in lawful sale or transfer or use or purposely allow use
in unlawful, negligent, or improper fashion); Ohio Rev. Code
Sec. 2305.401 (enacted 2001) (providing that no member of firearm
industry is liable for harm sustained as result of operation or
discharge of firearm, unless firearm is sold illegally or plaintiff
states product liability claim authorized by Chapter 2307 of Ohio
Code); S.C. Code Sec. 15-73-40 (enacted 2000) (providing that plaintiff
in products liability action involving firearm has burden to prove
actual design of firearm was defective, causing it not to function in a
manner reasonably expected by an ordinary consumer); S.D. Codified Laws
Sec. 21-58-2 (enacted 2000) (providing that no one who lawfully
manufactures or sells a firearm can be held liable because of the use
of such firearm by another, but with exceptions including actions for
negligent entrustment, for unlawful sales, or for injuries resulting
from failure of firearms to operate in a normal or usual manner due to
defects or negligence in design or manufacture); Section 82.006, Texas
Civil Practice and Remedies Code (enacted 1993) (providing that
plaintiff in products liability action must prove that actual design
was defective, causing firearm not to function in manner reasonably
expected by ordinary consumer); Wash. Rev. Code Sec. 7.72.030 (enacted
1988) (precluding firearm from being found defective in design on
ground that its benefits do not outweigh its risks).
---------------------------------------------------------------------------
Various Public Entities' Attempts to Breach the Separation of Powers
In lawsuits brought by public entities that have been
completely dismissed, the courts found that the plaintiffs were
attempting to regulate firearms and that only the State had the
power to regulate in this area.\109\ These courts saw clearly
that advocates of controlling or banning firearms or ammunition
are attempting to accomplish through litigation that which they
have been unable to achieve by legislation. Calling the suit a
misdirected attempt to ``regulate firearms and ammunition
through the medium of the judiciary,'' a Florida district court
of appeal affirmed the dismissal of Miami-Dade County's actions
against more than two dozen gun makers, trade groups and
retailers.\110\ The three-member Florida Third District Court
of Appeal ruled unanimously that the suit was simply a ``round-
about attempt'' to have the courts use their injunctive powers
to ``mandate the redesign of firearms and declare that the
appellees' business methods create a public nuisance.'' The
suit filed by the City of Cincinnati is also typical.\111\ The
city sought ``injunctive relief which would require [the]
defendants to change the methods by which they design,
distribute[,] and advertise their products nationally.'' \112\
This was deemed ``an improper attempt to have [the] court
substitute its judgment for that of the legislature, something
which [the] court is neither inclined nor empowered to do.''
\113\ Furthermore, the court held that the injunctive relief
sought by the city constituted a regulation of commercial
conduct lawful in and affecting other States and, as such, was
a violation of the Commerce Clause of the Constitution.\114\
The court in City of Chicago v. Beretta similarly found that
the facts alleged by the city ``in terms of immediacy and
proximity'' of the harm and its causation, were the kind of
facts that the legislature could take heed of and contemplate
and a court could not.\115\ In Philadelphia v. Beretta, the
judge dismissed the lawsuit as an unauthorized attempt by the
city to regulate firearms using its parens patriae powers
granted to the Commonwealth.\116\ In Morial v. Smith & Wesson
Corp., the Supreme Court of Louisiana held that the legislature
did not intend a scheme allowing various cities to file suits
against handgun manufacturers, and thereby effectively regulate
the handgun industry in different ways.\117\
---------------------------------------------------------------------------
\109\ See Ganim v. Smith & Wesson Corp. No. CV-99-0153198S, 1999 WL
1241909 (Conn. Super. Ct. Dec. 10, 1999), at *6-7; Penelas v. Arms
Tech., Inc. (order), No. 99-01941-CA-06 (11th Cir. Ct. Dec. 13, 1999)
at 4-5, located at http:// www.firearmslitigation.org; Cincinnati v.
Beretta U.S.A. Corp., No. A99-02369, 1999 WL 809838 (Ohio C.P. Oct 7,
1999) at *3. Judge Ruehlman found, in ruling on Cincinnati's claims,
that the plaintiff was trying to get the court ``to substitute its
judgment for that of the legislature.''Cincinnati, 1999 WL 809838 at
*1.
\110\ Penelas v. Arms Technology Inc. et al., No. 3D00-113,
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
\111\ See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL
809838 (Ohio Com. Pl. Oct. 7, 1999).
\112\ Id. at *1.
\113\ Id.
\114\ See id.
\115\ Order granting defendants' motion to dismiss, City of Chicago
v. Beretta U.S.A. Corp., No. 98 CH 15596 (Ill. Cir. Ct. Sept. 15,
2000).
\116\ See City of Philadelphia v. Beretta U.S.A. Corp., 126 F.
Supp. 2d 882, 889 (E.D. Pa. 2000) (relying on Ortiz v. Commonwealth,
681 A.2d 152 (Pa. 1996)).
\117\ See Morial v. Smith & Wesson Corp., 785 So. 2d 1, 16 (La.
2001).
---------------------------------------------------------------------------
Through traditional tort suits, public entities are using
both extraordinary compensatory and punitive damage requests
and injunctive relief in an attempt to impose broad new
regulations on the design, manufacture, and interstate
distribution of firearms, outside of the appropriate
legislative context. As explained by United States District
Court Judge Buchmeyer, ``the plaintiff's attorneys simply want
to eliminate handguns.'' \118\
---------------------------------------------------------------------------
\118\ Patterson, 608 F.Supp. at 1212. Judge Buchmeyer closed with
the statement: ``As an individual, I believe, very strongly, that
handguns should be banned and that there should be stringent, effective
control of other firearms. However, as a judge, I know full well that
the question of whether handguns can be sold is a political one, not an
issue of products liability law--and that this is a matter for the
legislatures, not the courts. Id. at 1216. Advocates for the lawsuits
have also expressed a desire to bypass legislatures. Editorializing in
favor of strict liability for gun companies, the Chicago Tribune asked,
``Why should a court take this step? Why not a legislature? Because
it's so highly unlikely.''See ``Courts Must Lead Fight Against Guns,''
The Chicago Tribune (May 3, 1994). See also Bruce Rosen, ``Gun-control
Weapon: Product Liability Suit,'' Record (Bergen Cty.N.J.) (February
17, 1985) (``[A]ntigun activists around the country, backed by a cadre
of lawyers who specialize in such suits, have been trying to do in
courts what they haven't been able to do in the State legislatures'');
David Lauter, ``Suits Target Handgun Makers,'' National Law Journal
(November 29, 1982) at 12 (``Gun control advocates, who have organized
a research program to assist the plaintiffs' attorneys, are hoping that
plaintiffs' victories in court would force handgun manufacturers to
adopt controls that nearly all legislatures have so far been unwilling
to mandate.''). Another lawsuit proponent suggested the plaintiffs
``bring the great power of our civil courts to bear on a problem that
our legislatures . . . have not been able to solve.'' Speiser,
``Disarming the Handgun Problem by Directly Suing Arms Makers,''
National Law Journal (June 8, 1981) at 29.
---------------------------------------------------------------------------
However, as the United States Supreme Court has repeatedly
recognized, ``regulation can be as effectively exerted through
an award of damages as through some form of preventive relief .
. . [W]e have recognized the phrase `State law' to include
common law as well as statutes and regulations. ''\119\ More
recently, the Court reiterated that regulatory ``power may be
exercised as much by a jury's application of a State rule of
law in a civil lawsuit as by a statute. ''\120\ Plaintiffs
seeking bankrupting sums in compensation for the costs of
public services provided to their citizen taxpayers, as well as
punitive damages to ``punish the Defendants for their conduct
and prevent a repetition of such conduct in the future. ''\121\
If successful, these damage claims can only result in an
alteration of the lawful commercial practices of every firearm
manufacturer, domestic or foreign, which sells its products in
the United States.
---------------------------------------------------------------------------
\119\ Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521-22
(1992).
\120\ BMW of North America, Inc. v. Gore, 517 U.S. 559, 572 n.17
(1996); see also San Diego Bldg. Trades Council v. Garmon, 359 U.S.
236, 247 (1959) (``[R]egulation can be as effectively exerted through
an award of damages as through some form of preventive relief. The
obligation to pay compensation can be, indeed is designed to be, a
potent method of governing conduct and controlling policy.'').
\121\ Complaint at para.161(c), James v. Arcadia Mach. & Tool, No.
L-6059-99 (N.J. Super. Ct. Essex County filed June 9, 1999).
---------------------------------------------------------------------------
Public entities are seeking to achieve through the courts
what they have been unwilling or unable to obtain
legislatively, namely limits on the numbers, locations, and
types of firearms sold, and a shift in the responsibility for
violence response costs to the private sector. One consequence
of this is an erosion of the separation of powers of the
various branches of government.\122\ The separation of powers
doctrine is ``implicitly embedded'' in the constitutions and
laws of every State, and helps to define the scope of powers
residing in the three branches of government.\123\ As one court
has stated, ``The doctrine of separation of powers prohibits
courts from exercising a legislative function by engaging in
policy decisions and making or revising rules or regulations.
''\124\ Just as large damage awards have a regulatory effect,
requests for injunctive relief tend to force the judiciary to
intrude into the decision-making process properly within the
sphere of another branch of government.\125\ The New York Times
reported recently that Elisa Barnes, the chief lawyer in a
Brooklyn lawsuit against the firearms industry, ``is trying to
change the way the gun industry does business.'' \126\ However,
that is a job for voters and legislatures, not lawyers. In the
words of Robert B. Reich, former Labor Secretary in the Clinton
Administration, ``If I had my way, there'd be laws restricting
cigarettes and handguns. [But] the [Clinton] White House is
launching lawsuits to succeed where legislation failed. The
strategy may work, but at the cost of making our frail
democracy even weaker . . . You might approve the outcomes in
these [] cases, but they establish a precedent for other cases
you might find wildly unjust.'' \127\
---------------------------------------------------------------------------
\122\ See Jeffery Abramson, ``Where Do The Suits Stop?,'' The
Washington Post (January 31, 1999) at B3; Editorial, ``Guns and the
Court,'' Pittsburgh Post-Gazette (December 9, 1999) at A30; Knight,
``Misfiring Through the Courts,'' Denver Post (October 21, 1999) at
B11; Bill Pryor, ``Trial Lawyers Target Rule of Law,'' The Atlanta
Constitution (January 13, 1999); P. Waldmeir, ``Trigger-happy
Justice,'' Financial Times (January 16, 1999) at 17; Richard Epstein,
``Lawsuits Aimed At Guns Probably Won't Hit Crime,'' The Wall Street
Journal (December 9, 1999) at A26.
\123\ See City of South Euclid v. Jemison, 503 N.E.2d 136, 138
(1986).
\124\ Route 20 Bowling Alley, Inc. v. City of Mentor, No. 94-L-141,
1995 WL 869959, at *3 (Ohio Ct. App. Dec. 22, 1995) (citing Zangerle v.
Evatt, 41 N.E.2d 369 (Ohio 1942)).
\125\ See Gordon v. Texas, 153 F.3d 190, 194 (5th Cir. 1998)
(citing Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992)
(``[B]ecause the framing of injunctive relief may require the courts to
engage in the type of operational decision-making beyond their
competence and constitutionally committed to other branches, such suits
are far more likely to implicate political questions.'').
\126\ Lynda Richardson, ``Challenging Gun Makers to Bear
Responsibility,'' the New York Times (October 22, 2002) at B4.
\127\ Robert Reich, ``Smoking, Guns,'' The American Prospect
(January 17, 2000).
---------------------------------------------------------------------------
Many courts have respected the separation of powers. For
example, in Forni v. Ferguson,\128\ plaintiffs sought damages
from the manufacturer of a firearm used by Colin Ferguson in
the Long Island Rail Road shootings. Plaintiffs alleged, among
other things, that the firearm was defective; that the
``omission of an alternative design rendered the product
unsafe;'' and that the ``defendants were negligent in
marketing, distributing and selling the weapon and bullets to
the general public.''\129\ Plaintiffs asked the court to hold
the firearm manufacturer liable for criminally-inflicted
injuries. Rejecting this proposal, the trial court noted that
``At oral argument of this motion, I told counsel that I
personally hated guns and that if I were a member of the
legislature, I would lead a charge to ban them. However, I do
not hold that office. Rather, I am a member of the Judiciary,
and must respect the separation of function.'' \130\
---------------------------------------------------------------------------
\128\ No. 132994/94 (N.Y. Sup. Ct. Aug. 2, 1995), aff'd, 648
N.Y.S.2d 73 (N.Y. App. Div. 1996).
\129\ Id. at 2.
\130\ Id. at 14; accord Armijo v. Ex Cam, Inc., 843 F.2d 406, 407
(10th Cir. 1988) (``To recognize such a cause of action in New Mexico
would require an abrogation of the common law in a way bordering on
judicial legislation.''); Delahanty v. Hinckley, 686 F. Supp. 920, 930
(D.D.C. 1986) (``All of the above suggests to this Court that what is
really being suggested by plaintiffs, and indeed by many citizens, is
for this Court, or courts, to indirectly engage in legislating some
form of gun control. The pitfalls noted above seem to be ample
evidence, however, that such legislation should be left to the Federal
and State legislatures which are in the best position to hold hearings
and enact legislation which can address all of the issues and concerns
as well as reflect the will of the citizens.''); Patterson v.
Gesellschaft, 608 F. Supp. 1206, 1216 (D. Tex. 1985) (``[T]he question
of whether handguns can be sold is a political one, not an issue of
products liability law--and that . . . is a matter for the
legislatures, not the courts.'') (emphasis omitted); Mavilia v. Stoeger
Indus., 574 F. Supp. 107 (D. Mass. 1983); Knott v. Liberty Jewelry &
Loan, Inc., 748 P.2d 661 (Wash. Ct. App. 1988).
---------------------------------------------------------------------------
Litigation by Public Entities and Others Should Not Restrict Interstate
Commerce by Limiting the Sale and Distribution of Firearms
Beyond a State's Borders
In many of the complaints filed against firearm
manufacturers, the plaintiffs seek to obtain through the
courts--either through equitable remedies, the burden or threat
of monetary damages, or both--stringent limits on the sale and
distribution of firearms beyond the plaintiffs' jurisdictional
boundaries. By virtue of the enormous compensatory and punitive
damages sought, and because of the types of injunctive relief
requested, these complaints in practical effect would require
manufacturers of lawful firearms to curtail or cease all lawful
commercial trade in those firearms in the jurisdictions in
which they reside--almost always outside of the States in which
these complaints are brought--to avoid potentially limitless
liability. Insofar as these complaints have the practical
effect of stopping or burdening interstate commerce in
firearms, they seek remedies in violation of the Constitution.
For example, in Chicago, the city alleges that it has
enacted ``gun control ordinances that are among the strictest
of any municipality in the country. ''\131\ Further, the city
alleges that these ordinances will reduce homicides, suicides,
and accidental shootings with firearms ``as long as residents
of the jurisdiction imposing the restriction cannot legally
purchase those firearms elsewhere.'' \132\ The city seeks to
force dealers outside of its jurisdiction to stop selling
firearms to Chicago residents who may lawfully purchase them
pursuant to the Chicago Municipal Code, and to force
manufacturers to stop lawfully supplying products to those
dealers, directly or indirectly.\133\ Similarly, in the
complaint filed by the District of Columbia, that city seeks to
hold manufacturers liable for their lawful sales outside the
District of firearms which ``subsequently are brought
unlawfully [by others] into the District.'' \134\ Other cities
seek injunctive relief aimed at ``prohibiting the sale of
[firearms] in a manner which causes such firearms to
inappropriately enter the State'' \135\ or at forcing
fundamental changes in the methods by which manufacturers
distribute firearms. In one case, a county specifically sought
an injunction whereby the court would order firearms
manufacturers ``to terminate shipments of firearms to dealers
who do not enforce and abide by'' the county's notions for
doing business and ``to cease shipments to dealers in proximity
to [the] County of firearms'' that the county deemed
``unreasonably attractive to criminals.'' \136\ Similarly,
other complaints seek to preclude, limit, restrain or otherwise
impact lawful commerce beyond its borders.
---------------------------------------------------------------------------
\131\ Complaint at para.15, City of Chicago v. Beretta U.S.A.
Corp., No. 98 CH 15595 (Ill. Cir. Ct. Cook County filed Nov. 12, 1998).
\132\ Id.
\133\ See id. at para.25.
\134\ Complaint at para.51, District of Columbia v. Beretta U.S.A.
Corp., No. 00-0000428 (D.C. Super. Ct. filed Jan 20, 2000).
\135\ Complaint at para.4(a), Wherefore Clause, Camden County Bd.
v. Beretta U.S.A. Corp., No. 99cv2518(JBS) (D.N.J. filed June 1, 1999).
\136\ Amended Complaint at para.64(e)(1), (2), Penelas v. Arms
Tech., Inc., No. 99-01941 CA 06 (Fla. Cir. Ct. Miami-Dade County filed
June 4, 1999).
---------------------------------------------------------------------------
Such efforts at extraterritorial regulation aim to reduce
interstate commerce in a manner barred by the Commerce Clause
\137\ and the Due Process Clause of the Fourteenth
Amendment.\138\ Plaintiffs' claims directly implicate core
federalism principles articulated by the United States Supreme
Court in BMW of North America, Inc. v. Gore.\139\ Gore makes
clear that ``[O]ne State's power to impose burdens on the
interstate market . . . is not only subordinate to the Federal
power over interstate commerce, but is also constrained by the
need to respect the interests of other States. . . .'' \140\
Further, ``the Constitution has a `special concern both with
the maintenance of a national economic union unfettered by
State-imposed limitations on interstate [and international]
commerce and with the autonomy of the individual States within
their respective spheres.'' \141\ Healy v. Beer Institute \142\
in turn relied on Edgar v. MITE Corp.,\143\ which held that
``[t]he Commerce Clause . . . precludes the application of a
State statute to commerce that takes place wholly outside of
the State's borders, whether or not the commerce has effects
within the State.'' \144\ Healy elaborated these principles
concerning the extraterritorial effects of State regulations:
---------------------------------------------------------------------------
\137\ U.S. Const. art. I, Sec. 8.
\138\ U.S. Const. amend. XIV, Sec. 1.
\139\ 517 U.S. 559, 571 (1996).
\140\ Id. at 571 (citations and footnote omitted).
\141\ Id. at 571-72 (quoting Healy v. Beer Inst., 491 U.S. 324,
335-36 (1989)).
\142\ 491 U.S. 324 (1989).
\143\ 457 U.S. 624 (1982).
\144\ Id. at 642-43.
The critical inquiry is whether the practical effect of
the regulation is to control conduct beyond the
boundaries of the State . . .. [T]he practical effect
of the statute must be evaluated not only by
considering the consequences of the statute itself, but
also by considering how the challenged statute may
interact with the legitimate regulatory regimes of
other States and what effect would arise if not one,
but many or every, State adopted similar legislation.
Generally speaking, the Commerce Clause protects
against inconsistent legislation arising from the
projection of one State regulatory regime into the
jurisdiction of another State. And, specifically, the
Commerce Clause dictates that no State may force an
out-of-State merchant to seek regulatory approval in
one State before undertaking a transaction in
another.\145\
---------------------------------------------------------------------------
\145\ Healy, 491 U.S. at 336-37 (citations omitted).
The Commerce Clause is thus not only a provision that
allocates power between Federal and State governments. It is
also a ``substantive `restriction on permissible State
regulation' of interstate commerce . . . `recognized as a self-
executing limitation on the power of the States to enact laws
imposing substantial burdens on such commerce.' '' \146\ This
limitation precludes the national regulatory programs sought in
many complaints filed against the firearms industry.
---------------------------------------------------------------------------
\146\ Dennis v. Higgins, 498 U.S. 439 (1991) (citations omitted)
(quoting South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87
(1984)).
---------------------------------------------------------------------------
Beyond its Commerce Clause analysis, Gore further holds
that:
it follows from these principles of State sovereignty
and comity that a State may not impose economic
sanctions on violators of its laws with the intent of
changing the tortfeasors' lawful conduct in other
States[,] . . . [n]or may [a State] impose sanctions on
[a defendant] in order to deter conduct that is lawful
in other jurisdictions.\147\
---------------------------------------------------------------------------
\147\ BMW of North America, Inc. v. Gore, 517 U.S. 559, 572-73
(1996).
Central to Gore's due process holding is the principle
that'' [t]o punish a person because he has done what the law
plainly allows him to do is a due process violation of the most
basic sort.' '' \148\
---------------------------------------------------------------------------
\148\ Id. at 573 n.19 (quoting Bordernkircher v. Hayes, 434 U.S.
357, 363 (1978)).
---------------------------------------------------------------------------
Hurdling Down the Slippery Slope
Once it is established, in the context of firearms, that
product manufacturers are responsible for ``socializing'' the
cost of criminal product misuse, then it may be hard to avoid
the slippery slope that leads to making automobile dealers
liable for drunk drivers, knife manufacturers liable for knife
wounds, or food manufacturers liable for the harm caused by the
fat content of snacks.
If a company manufactures a legitimate product that is
widely and lawfully distributed, and the product is criminally
or unlawfully misused to injure a person, and the product is
functioning properly, without any defect in its design or
manufacture, a manufacturer should not be held liable for that
injury. Yet unfortunately, the unpopular nature of firearms in
some quarters has led to disastrous precedents that will weaken
the moral foundation of tort law generally and the separation
of powers if left unchecked by Congress. If the judicial system
is allowed to bankrupt the firearms industry based on legal
theories holding manufacturers liable for the criminal or
unlawful misuse of their products, it is likely that similar
liability will soon be applied to other industries whose
products are statistically associated with misuse, such as the
knife and automobile industries.
Like firearms manufacturers, knife and automobile
manufacturers, for example, are aware that a small percentage
of their products will be misused by criminals or intoxicated
individuals, and knives and automobiles cannot currently be
feasibly designed to prevent such misuse. The essential concept
of the misuse doctrine is that products are necessarily
designed to do certain limited tasks, within certain limited
environments of use, and that no product can be made safe for
every purpose, manner, or extent of use. Considerations of cost
and practicality limit every product's range of effective and
safe use, which is a fundamental fact of life that consumers
readily understand. As Dean Prosser explained, ``Knives and
axes would be quite useless if they did not cut.'' \149\
Likewise, as a Federal district court noted, ``Although a knife
qualifies as an obviously dangerous instrumentality, a
manufacturer need not guard against the danger it presents.''
\150\ Knives are mostly used for nonviolent purposes, such as
cooking, but hundreds of thousands of violent crimes every year
are perpetrated with knives. 35% of homicides are committed
with weapons other than guns.\151\ Further, 40% of aggravated
assaults involving strangers are committed with knives or blunt
objects, and 49% of aggravated assaults involving nonstrangers
are committed with knives or blunt objects.\152\ Alcohol, too,
exacts a toll on society.\153\ For example, in 1996, motor
vehicle accidents involving intoxicated motorists accounted for
over 13,000 fatalities.\154\ On an average day during the same
year, it was determined that just under two million offenders
under the jurisdiction of the criminal justice system consumed
alcohol at the time they committed their offense.\155\ Further,
two-thirds of victims who suffered violence by an intimate--a
current or former spouse, boyfriend, or girlfriend--reported
that alcohol had been a factor.\156\ Of all victims of
violence, 26% involve the use of alcohol by the offender, and
these victimizations result in estimated annual losses of $402
million.\157\ Alcohol use by offenders is also involved in 22%
of rapes.\158\ Further, of inmates who possessed a firearm
during their current offense, 17% of those in Federal prison
had parents that abused alcohol, and 18% of those in State
prison had parents that abused alcohol.\159\
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\149\ William Prosser, Handbook of the Law of Torts Sec. 99.
\150\ Dorsey v. Yoder Co., 331 F.Supp. 753, 759 (E.D.Pa.1971),
aff'd, 474 F.2d 1339 (3d. Cir.1973).
\151\ See U.S. Department of Justice, Bureau of Justice Statistics,
http://www.ojp.usdoj.gov/bjs/cvict--c.htm.
\152\ See U.S. Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, ``Crime Victimization in United States,
1999 Statistical Tables'' at Table 66 (January 2001, NCJ 184938).
\153\ See Bureau of the Census, U.S. Dep't of Com., Statistical
Abstract of the United States 1998, 110 (1998) (indicating that 20,231
people died from alcohol induced causes in 1995).
\154\ See Lawrence A. Greenfield, U.S. Dep't of Just., Alcohol and
Crime 11 (1998) (providing an analysis of national data by the Bureau
of Justice Statistics regarding the prevalence of alcohol in criminal
activity).
\155\ See id. at 20.
\156\ See U.S. Department of Justice, Bureau of Justice Statistics,
http://www.ojp.usdoj.gov/bjs/cvict--c.htm. (``Two-thirds of victims who
suffered violence by an intimate (a current or former spouse,
boyfriend, or girlfriend) reported that alcohol had been a factor.
Among spouse victims, 3 out of 4 incidents were reported to have
involved an offender who had been drinking. By contrast, an estimated
31% of stranger victimizations where the victim could determine the
absence or presence of alcohol were perceived to be alcohol-
related.''). Much higher percentage of violent crimes result in
injuries when they involve an intimate partner (48%) or a family member
(32%) than when involving a stranger (20%). See Thomas Simon, James
Mercy, and Craig Perkins, Bureau of Justice Statistics Special Report,
``Injuries from Violent Crime, 1992-98'' (June 2001, NCJ 168633).
\157\ See Lawrence A. Greenfeld and Maureen A. Henneberg, ``Victim
and Offender Self-Reports of Alcohol Involvement in Crime,'' 25 Alcohol
Research and Health 1 at 22, 24 (2001).
\158\ See U.S. Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, ``Crime Victimization in United States,
1999 Statistical Tables'' at Table 32 (January 2001, NCJ 184938).
\159\ See Caroline Wolf Harlow, Bureau of Justice Statistics
Special Report. ``Firearms Use by Offenders'' (November 2001, NCJ
189369) at 5.
---------------------------------------------------------------------------
Recognizing these social and legal dynamics back in 1985, a
Federal judge in Patterson v. Rohm Gesellschaft \160\ stated
that plaintiff's unconventional application of tort law in the
case would also apply to automobiles, knives, axes and even
high-calorie food ``for an ensuing heart attack'' and that it
would be ``nonsensical'' to claim that a product can be
defective under the law when it has no defect. In 1999, the
judge in the lawsuit brought by the City of Bridgeport,
Connecticut, similarly observed that cities suing the firearms
industry ``have envisioned . . . the dawning of a new age of
litigation during which the gun industry, liquor industry, and
purveyors of `junk' food would follow the tobacco industry in
reimbursing government expenditures. . . .'' \161\ Only a few
years later, this ``new age'' of litigation is already upon us.
Whereas lawsuits brought against BB gun manufacturers \162\ and
slingshot dealers \163\ were at one time viewed as dangerous
judicial incursions into legislative roles, today such lawsuits
against even fast food companies are proliferating.\164\
---------------------------------------------------------------------------
\160\ 608 F. Supp. 1206, 1211-12 (N.D. Tex. 1985).
\161\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999
Conn. Super. LEXIS 3330 at *14 (Conn. Super. Ct. Dec. 10, 1999).
\162\ Koepke v. Crossman Arms Co., 582 N.E.2d 1000 (Ohio Ct.App.,
1989).
\163\ Bojorquez v. House of Toys, Inc., 133 Cal.Rptr. 483, 484
(Cal.Ct.App.1976) (stating plaintiffs ``ask us to ban the sale of toy
slingshots by judicial fiat. Such a limitation is within the purview of
the Legislature, not the judiciary.'').
\164\ See ``Fat-suit lawyer files new class action for children,''
Nation's Restaurant News (September 16, 2002) (``The lawyer who sued
McDonald's, Burger King, KFC and Wendy's in July over their alleged
roles in contributing to a man's obesity and health problems has filed
a similar class-action lawsuit here against those same chains on behalf
of overweight children.''). See also Roger Parloff, ``Is Fat the Next
Big Tobacco?'' Fortune (January 21, 2003) (``On August 3, 2000, the
parody newspaper The Onion ran a joke article under the headline
Hershey's Ordered to Pay Obese Americans $135 Billion. The hypothesized
class-action lawsuit said that Hershey ``knowingly and willfully''
marketed to children ``rich, fatty candy bars containing chocolate and
other ingredients of negligible nutritional value,'' while ``spiking''
them with ``peanuts, crisped rice, and caramel to increase consumer
appeal.'' Some joke. Last summer New York City attorney Sam Hirsch
filed a strikingly similar suit--against McDonald's--on behalf of a
class of obese and overweight children. He alleged that the fast-food
chain ``negligently, recklessly, carelessly and/or intentionally''
markets to children food products that are ``high in fat, salt, sugar,
and cholesterol'' while failing to warn of those ingredients' links to
``obesity, diabetes, coronary heart disease, high blood pressure,
strokes, elevated cholesterol intake, related cancers,'' and other
conditions. News of the lawsuit drew hoots of derision. But food
industry executives aren't laughing--or shouldn't be. No matter what
happens with Hirsch's suit, he has tapped into something very big.'').
---------------------------------------------------------------------------
Without the benefit of traditional tort principles, both
the steak knife and the steak itself could become historical
artifacts. Additional lawsuits against the firearms industry
for the criminal or unlawful misuse of their products will only
tend to establish legal precedents that will invite continued
litigation against legal, national industries such as the fast
food industry, and additional waves of litigation against such
industries as the knife and alcohol industries, further
undermining the foundation of tort law in personal
responsibility, the separation of powers, and the American
economy. According to one recent report:
In the next few years, predicts insurance consultancy
Tillinghast-Towers Perrin, tort costs could increase
twice as fast as the economy, going from $200 billion
last year to $298 billion, or 2.4% of GDP, by 2005.
Since 1994 the average jury award in tort cases as a
whole has tripled to $1.2 million, in medical
malpractice it has tripled to $3.5 million and in
product liability cases it has quadrupled to $6.8
million, according to just released data from Jury
Verdict Research.'' \165\
---------------------------------------------------------------------------
\165\ See Michael Freedman, ``The Tort Mess'' Forbes (May 13,
2002).
And according to a recent report by the Council of Economic
---------------------------------------------------------------------------
Advisers:
[T]he United States tort system is the most expensive
in the world, more than double the average cost of
other industrialized nations . . . To the extent that
tort claims are economically excessive, they act like a
tax on individuals and firms . . . With estimated
annual direct costs of nearly $180 billion, or 1.8
percent of GDP, the U.S. tort liability system is the
most expensive in the world, more than double the
average cost of other industrialized nations that have
been studied. This cost has grown steadily over time,
up from only 1.3 percent of GDP in 1970, and only 0.6
percent in 1950.\166\
---------------------------------------------------------------------------
\166\ Council of Economic Advisers, ``Who Pays for Tort Liability
Claims? An Economic Analysis of the U.S. Tort Liability System'' (April
2002) at 1-2.
Manufacturers, of course, often stand out as deep pockets
worth pursuing and trial lawyers, faced with a judgment proof
assailant and an uncompensated victim, may well pursue remote
corporate targets. But there is an endless list of products
that can be criminally misused to cause personal injury that
may expose the manufacturer or seller to a lawsuit and, if left
unchecked, the infinite flexibility of the ``foreseeability''
doctrine would allow for the crippling or destruction of entire
industries and the usurpation of the legislative role by the
judicial system, which in some instances has found that a
manufacturer reasonably should foresee that a teenage girl will
scent a candle by pouring cologne on it below the flame; \167\
a person will insist on sitting in a chair \168\ or an exercise
bicycle \169\ too frail for one's weight (300 and 500 pounds,
respectively); or a child will tilt or rock a soft-drink
vending machine to drop out a can without paying, causing the
machine to fall on and kill him.\170\
---------------------------------------------------------------------------
\167\ See Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975)
(foreseeable).
\168\ See Horne v. Liberty Furniture Co., 452 So. 2d 204 (La. Ct.
App. 5th Cir. 1984), writ denied, 456 So. 2d 166 (La. 1984) and writ
denied, 456 So. 2d 171 (La. 1984) (foreseeable by implication).
\169\ See Dunne v. Wal-Mart Stores, Inc., 679 So. 2d 1034 (La. Ct.
App. 1st Cir. 1996) (foreseeable).
\170\ Compare Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621
So. 2d 953 (Ala. 1993) (unforeseeable because a person may not impose
liability on another for consequences of person's own act of moral
turpitude), with Morgan v. Cavalier Acquisition Corp., 432 S.E.2d 915
(1993) (foreseeable because a jury could properly so find); Ridenour v.
Bat Em Out, 707 A.2d 1093 (App. Div. 1998) (foreseeable, relating to
use of a change machine).
---------------------------------------------------------------------------
INCREASED REGULATION THROUGH THE JUDICIARY THREATENS THE SECOND
AMENDMENT'S PROTECTION OF INDIVIDUAL RIGHTS
Governments are generally immune from suit for failure,
even grossly negligent or deliberate failure, to protect
citizens from crime.\171\ Governments are similarly immune from
suit by victims who were injured by criminals who were given
early release on parole.\172\ Accordingly, it is inappropriate
for the government, through the courts, to make it difficult or
impossible for persons to own handguns for self-defense. Less
than 1 percent of the firearms in circulation in the United
States are ever involved in violence,\173\ yet over a dozen
studies have estimated that citizens use firearms in self-
defense between 764,000 and 3.6 million times annually.\174\ On
January 23, 2003, for example, Baltimore Circuit Judge John
Glynn, just seconds after defense attorneys finished their
closing arguments, found two men not guilty in the June 30,
2001, self-defense gun killing of a man who broke into their
warehouse and threatened to kill them with hammer.\175\
Research has also demonstrated that nondiscretionary concealed
gun laws--which require law-enforcement officials or a
licensing agency to issue, without subjective discretion,
concealed-weapon permits to all qualified applicants--reduce
the incidence of violent crime, murder, rape, robbery, and
aggravated assault.\176\ If the judiciary will not question the
government's civil immunity for failure to protect people, the
government's courts should not become a means of depriving the
people of the tools with which they protect themselves.
---------------------------------------------------------------------------
\171\ For example, in Warren v. District of Columbia, 444 A.2d 1
(D.C. 1981), the plaintiffs sustained injuries as a result of the
criminal conduct of third parties. Their injuries were exacerbated and
their recovery impeded because of malfeasance on the part of the
police. The court held that there was no special relationship between
the public and law enforcement; thus, the police were under no duty to
provide protection or other services to the general public. See id. at
2-4. See also Bowers v. DeVito 686 F.2d 616 (7th Cir.1982) (no Federal
Constitutional requirement that police provide protection); Calogrides
v. Mobile, 475 So.2d 560 (Ala.1985); Cal.Govt.Code Sec. Sec. 845 (no
liability for failure to provide police protection) and 846 (no
liability for failure to arrest or to retain arrested person in
custody); Davidson v. Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252;
649 P.2d 894 (1982); Stone v. State 106 Cal.App.3d 924, 165 Cal.Rptr.
339 (1980); Morgan v. District of Columbia, 468 A.2d 1306
(D.C.App.1983); Sapp v. Tallahassee, 348 So.2d 363 (Fla.Dist.Ct.App.),
cert. denied 354 So.2d 985 (Fla.1977); Ill.Rev.Stat. 4-102; Keane v.
Chicago, 98 Ill.App.2d 460, 240 N.E.2d 321 (1st Dist.1968); Jamison v.
Chicago, 48 Ill.App.3d 567 (1st Dist.1977); Simpson's Food Fair v.
Evansville, 272 N.E.2d 871 (Ind.App.); Silver v. Minneapolis 170 N.W.2d
206 (Minn.1969); N.J.Stat,Ann. Sec. Sec. 59:2-1, 59:5-4 (1972);
Wuetrich v. Delia, 155 N.J.Super. 324, 326, 382 A.2d 929, 930, cert.
denied, 77 N.J. 486, 391 A.2d 500 (1978), aff'g 134 N.J.Super. 400, 341
A.2d 365 (N.J.Super.Ct., Law Div., 1975); Chapman v. Philadelphia, 290
Pa.Super. 281, 434 A.2d 753 (Penn.1981); Morris v. Musser, 84 Pa.Commw.
170, 478 A.2d 937 (1984).
\172\ Dennis Hevesi, ``New York is Not Liable for Murders,'' The
New York Times (July 10, 1987).
\173\ See H. Sterling Burnett, Nat'l Center for Pol'y Analysis,
Suing Gun Manufacturers: Hazardous to Our Health (1999).
\174\ See Gary Kleck, Targeting Guns: Firearms and Their Control
150-89 (1997). See, e.g., Dave Birkland, ``Woman Shoots, Kills Armed
Intruder in West Seattle,'' The Seattle Times (April 25, 2002).
\175\ See ``How Guns Save Lives,'' The Washington Times (January
26, 2003).
\176\ See John R. Lott, Jr. More Guns Less Crime: Understanding
Crime and Gun Control Laws (2d. ed. 2000) at 77-79 (Figures 4.5, 4.6,
4.7, 4.8, and 4.9).
---------------------------------------------------------------------------
Researchers have estimated that Americans use guns for
self-protection as often as 2.1 to 2.5 million times a year.
The estimate may seem remarkable in comparison to expectations
based on conventional wisdom, but it is has been noted that it
is not implausibly large in comparison to various gun-related
phenomena. There are probably over 220 million guns in private
hands in the United States, indicating that only about 1% of
them are used for defensive purposes in any 1 year.\177\ Only
24% of the gun defenders in the study reported firing the gun,
and only 8% reported wounding an adversary.\178\ Guns were most
commonly used for defense against burglary, assault, and
robbery.\179\ Also, a disproportionate share of defensive gun
users are African-American or Hispanic compared to the general
population.\180\
---------------------------------------------------------------------------
\177\ See Gary Kleck and Marc Gertz, ``Armed Resistance to Crime:
The Prevalence and Nature of Self-Defense With a Gun,'' 86 Journal of
Crim. Law & Criminology (1995) at 167.
\178\ Id. at 173.
\179\ Id. at 175.
\180\ Id. at178.
---------------------------------------------------------------------------
Research also indicates that women and blacks benefit most
from being able to have a gun for protection:
Murder rates decline when either more women or more men
carry concealed handguns, but the effect is especially
pronounced for women. One additional woman carrying a
concealed handgun reduces the murder rate for women by
about 3-4 times more than one additional man carrying
concealed handgun reduces the murder rate for men. This
occurs because allowing a women to defend herself with
a concealed handgun produces a much larger change in
her ability to defend herself than the change created
by providing a man with a handgun . . . [B]lacks
benefit more than other groups from concealed-handgun
laws. Allowing potential victims a means for self-
defense is more important in crime-prone [inner city]
neighborhoods.\181\
---------------------------------------------------------------------------
\181\ See John R. Lott, Jr. More Guns Less Crime: Understanding
Crime and Gun Control Laws (2d. ed. 2000) at 20.
The benefits to women and blacks, and others, from being
able to have a gun for protection will be reduced if
unrestrained gun industry liability is allowed to add hundreds
of dollars to the price of guns such that people are priced out
of the market.
Proponents of lawsuits aimed at driving gun manufacturers
out of business generally deny that people have any right at
all to keep and bear arms. They argue that the Second Amendment
``right of the people to keep and bear arms'' is a right which
is ``granted'' solely to State government to maintain
uniformed, select militias, not individuals. However, the most
recent and comprehensive scholarship supports the proposition
that the Second Amendment to the Constitution protects an
individual right to keep and bear arms.\182\
---------------------------------------------------------------------------
\182\ See Laurence Tribe, I American Constitutional Law 902 n.221
(Foundation Press 2000) (stating Second Amendment confers an individual
right of U.S. citizens to ``possess and use firearms in the defense of
themselves and their homes--not a right to hunt for game, quite
clearly, and certainly not a right to employ firearms to commit
aggressive acts against other persons--a right that directly limits
action by Congress or by the Executive Branch and may well, in
addition, be among the privileges or immunities of United States
citizens protected by Sec. 1 of the Fourteenth Amendment against State
or local government action.''); Akhil Amar, ``The Bill of Rights and
the Fourteenth Amendment,'' 101 Yale L.J. 1193, 1265 (``The Second
Amendment, however, illustrates that States' rights and individual
rights, `private' rights of discrete citizens and `public' rights of
the citizenry generally, were sometimes marbled together into a single
clause.'').
---------------------------------------------------------------------------
The Fifth Circuit Court of Appeals recently issued a
decision that relied on the most recent and comprehensive
scholarship on the history and purpose of the Second Amendment
to hold that the Second Amendment protects an individual's
right to keep and bear arms. In United States v. Emerson,\183\
the Fifth Circuit stated that:
---------------------------------------------------------------------------
\183\ 270 F.3d 203 (5th Cir. 2001).
In sum, to give the Second Amendment's preamble its
full and proper due there is no need to torture the
meaning of its substantive guarantee into the
collective rights or sophisticated collective rights
model [both of which deny that the Second Amendment
recognizes an individual right] which is so plainly
inconsistent with the substantive guarantee's text, its
placement within the bill of rights and the wording of
the other articles thereof and of the original
Constitution as a whole.\184\
---------------------------------------------------------------------------
\184\ Id. at 236.
The court then concluded that ``We reject the collective
rights and sophisticated collective rights models for
interpreting the Second Amendment. We hold, consistent with
[United States v.] Miller [, 307 U.S. 174 (1939)], that it
protects the right of individuals, including those not then
actually a member of any militia or engaged in active military
service or training, to privately possess and bear their own
firearms, such as the pistol involved here, that are suitable
as personal, individual weapons and are not of the general kind
or type excluded by Miller.'' \185\
---------------------------------------------------------------------------
\185\ Id. at 260.
---------------------------------------------------------------------------
The term ``militia'' in the Constitution was understood by
the Founders to be composed of the people generally possessed
of arms which they knew how to use, rather than to refer to
some formal military group separate and distinct from the
people at large.\186\ James Madison also plainly shared these
views, as is reflected in his Federalist No. 46 where he argued
that power of Congress under the proposed constitution ``[t]o
raise and support Armies'' in art. 1, Sec. 8, cl. 12 posed no
threat to liberty because any such army, if misused, ``would be
opposed [by] a militia amounting to near half a million of
citizens with arms in their hands'' and then noting ``the
advantage of being armed, which the Americans possess over the
people of almost every other nation,'' in contrast to ``the
several kingdoms of Europe'' where ``the governments are afraid
to trust the people with arms.'' \187\
---------------------------------------------------------------------------
\186\ See, e.g., Debates in the Convention of the Commonwealth of
Virginia, reprinted in 3 J. Elliot, Debates in the Several State
Conventions 425 (3d ed. 1937) (statement of George Mason, June 14,
1788) (``Who are the militia? They consist now of the whole people. . .
.''); Letters from the Federal Farmer to the Republican 123 (W. Bennett
ed.1978) (ascribed to Richard Henry Lee) (``[a] militia, when properly
formed, are in fact the people themselves. . . .''); Letter from Tench
Coxe to the Pennsylvania Gazette (Feb. 20, 1778), reprinted in The
Documentary History of the Ratification of the Constitution
(Mfm.Supp.1976) (``Who are these militia? Are they not ourselves.'').
\187\ The Federalist Papers at 299 (Rossiter, New American
Library).
---------------------------------------------------------------------------
As stated by one commentator quoted by the Fifth Circuit,
``the [second] amendment's wording, so opaque to us, made
perfect sense to the Framers: believing that a militia
(composed of the entire people possessed of their individually
owned arms) was necessary for the protection of a free State,
they guaranteed the people's right to possess those arms.''
\188\
---------------------------------------------------------------------------
\188\ Don B. Kates, Jr., ``Handgun Prohibition and the Original
Meaning of the Second Amendment,'' 82 Mich.L.Rev. 204, 217-18 (1983)
(quoted in Emerson, 270 F.3d at 235).
---------------------------------------------------------------------------
The Supreme Court's decision in United States v.
Miller,\189\ is not to the contrary of the holding in Emerson.
In Miller, the Supreme Court held that the National Firearms
Act's prohibition of certain weapons that tended to be uniquely
used by criminals, such as sawed-off rifles and guns designed
to fit silencers, did not violate the Second Amendment as such
weapons were not those considered to be employed by a militia
composed of regular, law-abiding citizens.\190\
---------------------------------------------------------------------------
\189\ 307 U.S. 174 (1939).
\190\ See Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942)
(interpreting Miller as resting entirely on the type of weapon involved
not having any reasonable relationship to preservation or efficiency of
a well regulated militia); United States v. Warin, 530 F.2d 103, 105-06
(6th Cir.1976) (rejecting a Second Amendment challenge to a conviction
for possessing an unregistered 7\1/2\ inch barrel submachine gun
contrary to the National Firearms Act and stating that Miller ``did not
reach the question of the extent to which a weapon which is `part of
the ordinary military equipment' or whose `use could contribute to the
common defense' may be regulated'' and agreeing with Cases ``that the
Supreme Court did not lay down a general rule in Miller.'').
---------------------------------------------------------------------------
SUMMARY
Congress, by passing H.R. 1036, will protect the separation
of powers and uphold democratic procedures by exercising its
authority under the Commerce Clause to prevent State courts
from bankrupting the national firearms industry, threatening
the right to bear arms, and setting precedents that will
further undermine American industries and the national economy.
Hearings
The Subcommittee on Commercial and Administrative Law held
a legislative hearing on H.R. 1036 on April 2, 2003. Testimony
was received from the following witnesses: Carlton Chen,
General Counsel, Colt Manufacturing Company, Inc; Walter Olson,
Senior Fellow, the Manhattan Institute; David Lemongello,
Nutley, New Jersey; and Lawrence G. Keane, Vice President and
General Counsel, the National Shooting Sport Foundation.
Committee Consideration
On April 3, 2003, the Committee met in open session and
ordered favorably reported the bill H.R. 1036 with amendment by
a recorded vote of 21 to 11, a quorum being present.
Vote of the Committee
1. Motion by Mr. Cannon ordering the previous question on
the Watt Amendment, the Amendment in the Nature of a
Substitute, and on the bill, was agreed to by a rollcall vote
of 20 yeas, 5 nays, and 1 present.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Ms. Sanchez.....................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 20 5 1
----------------------------------------------------------------------------------------------------------------
2. Final Passage. The motion to report favorably the bill
H.R. 1036, as amended, was agreed to by a rollcall vote of 21
yeas to 11 nays.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn.................................................. X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Ms. Baldwin.....................................................
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 21 11
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 1036 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House of Representatives
is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1036, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 4, 2003.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1036, the
Protection of Lawful Commerce in Arms Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Walker (for Federal costs), who can be reached at 226-2860,
Victoria Heid Hall (for the state and local impact), who can be
reached at 225-3220, and Cecil McPherson (for the private-
sector impact), who can be reached at 226-2940.
Sincerely,
Douglas Holtz-Eakin.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1036--Protection of Lawful Commerce in Arms Act.
H.R. 1036 would require courts to dismiss certain lawsuits
filed against manufacturers and sellers of guns and ammunition,
as well as the trade associations that represent them.
Specifically, the bill would affect lawsuits seeking damages
for gun-related crimes committed by consumers of these
products. CBO estimates that implementing H.R. 1036 would not
have a significant impact on the Federal budget. Enacting the
bill would not affect direct spending or revenues.
H.R. 1036 would impose both an intergovernmental mandate
and a private-sector mandate as defined in the Unfunded
Mandates Reform Act (UMRA). The bill would prohibit State,
local, and tribal governments, and the private sector from
entering into lawsuits against certain manufacturers or sellers
of firearms and ammunition products and related trade
associations when such products are used unlawfully to do harm.
Depending on how such claims are resolved under current
law, plaintiffs could stand to receive significant amounts in
damage awards. More than 30 governmental entities have such
lawsuits pending. Because few lawsuits have been completed, CBO
has no basis for predicting the level of potential damage
awards, if any. Therefore, we cannot determine the cost of
these mandates (forgone net value of damage awards) or whether
they would exceed the annual thresholds established in UMRA for
intergovernmental mandates ($59 million in 2003, adjusted
annually for inflation) and for private-sector mandates ($117
million in 2003, adjusted annually for inflation).
The CBO staff contacts for this estimate are Lanette J.
Walker (for Federal costs), who can be reached at 226-2860,
Victoria Heid Hall (for the State and local impact), who can be
reached at 225-3220, and Cecil McPherson (for the private-
sector impact), who can be reached at 226-2940. The estimate
was approved by Peter H. Fontaine, Deputy Assistant Director
for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Short Title.
This sections provides that this Act may be cited as the
``Protection of Lawful Commerce in Arms Act.''
Sec. 2. Findings; Purposes.
This sections sets out the findings and purposes of the
Act.
Sec. 3. Prohibition on Bringing of Qualified Civil Liability Actions in
Federal or State Court.
This section provides that a ``qualified civil liability
action'' may not be brought in any Federal or State court, and
that any such qualified civil liability action that is pending
on the date of the enactment of this Act shall be dismissed
immediately by the court in which the action was brought or is
currently pending.
Sec. 4. Definitions.
This sections defines ``qualified civil liability action''
as a civil action brought by any person against a manufacturer
or seller of a qualified product, or a trade association, for
damages or injunctive relief resulting from the criminal or
unlawful misuse of a qualified product by the person or a third
party. Excluded from this definition are (i) actions brought
against a transferor convicted under section 924(h) of title
18, United States Code, or a comparable or identical State
felony law, by a party directly harmed by the conduct of which
the transferee is so convicted; (ii) actions brought against a
seller for negligent entrustment or negligence per se; (iii)
actions in which a manufacturer or seller of a qualified
product knowingly and willfully violated a State or Federal
statute applicable to the sale or marketing of the product, and
the violation was a proximate cause of the harm for which
relief is sought; (iv) actions for breach of contract or
warranty in connection with the purchase of the product; and
(v) actions for physical injuries or property damage resulting
directly from a defect in design or manufacture of the product,
when used as intended.
This sections also defines manufacturers and sellers of
qualified products as those who are federally licensed to
manufacture, import, or deal in firearms and ammunition, as
defined by Federal law.
This section also defines ``negligent entrustment'' as the
supplying of a qualified product by a seller for use by another
person when the seller knows or should know the person to whom
the product is supplied is likely to use the product, and in
fact does use the product, in a manner involving unreasonable
risk of physical injury to the person and others.
Markup Transcript
BUSINESS MEETING
THURSDAY, APRIL 3, 2003
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr., Chairman of the Committee, presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present, and pursuant to notice, I now call
up the bill, H.R. 1036, the ``Protection of Lawful Commerce and
Arms Act'' for purposes of markup, and move its favorable
recommendation to the full house. Without objection the bill
will be considered as read and open for amendment at any point.
[The bill, H.R. 1036, follows:]
Chairman Sensenbrenner. Without objection the amendment in
the nature of a substitute which all Members have before them
will be considered as read, considered as the original text for
purposes of amendment, and will be open for amendment at any
point.
[The amendment in the nature of a substitute follows:]
Chairman Sensenbrenner. I now recognize myself for 5
minutes to explain the bill. H.R. 1036 will stop ludicrous
lawsuits against the manufacturer or seller of firearms or
ammunition from harm resulting from the criminal or unlawful
misuse of their products by prohibiting such lawsuits from
being filed in State or Federal Court. Logic and fairness
dictate that manufacturers and merchants should not be held
responsible for the unlawful use of their lawful products.
H.R. 1036, which has significant bipartisan support, does
not preclude lawsuits against the person who transfers a
firearm knowing that it will be used to commit a crime of
violence or a drug trafficking crime. It also does not prevent
lawsuits against the seller for negligent entrustment or
negligence per se.
The bill also includes several additional exceptions
including an exception for actions in which a manufacturer or
seller of a qualified product knowingly and willfully violates
a State or Federal statute applicable to sales or marketing
when such violation was the proximate cause of the harm for
which the relief is sought.
Other exceptions include actions for breach of contract or
warranty in connection with the purchase of a firearm or
ammunition, and an exception for actions for damages resulting
directly from a defect in design or manufacture of a firearm or
ammunition.
The amendment in the nature of a substitute clarifies that
current cases must also be dismissed if pending in an appeals
court. The intention of the bill is to provide for the disposal
of all qualified actions, and this amendment does that. The
amendment in the nature of a substitute also clarifies that the
definition of the term ``qualified civil liability action''
also includes actions for injunctive relief that do not seek
monetary damages. Actions for injunctive relief, for example,
seek to change the way the firearms industry operates to impose
restrictions on the number of guns that can be sold, and the
way in which guns can be manufactured, including guns sold to
the police and to the military. Because such actions, just as
those for monetary damages, seek to usurp the legislative power
and bypass consideration of these issues in a democratic
manner, such actions should also be covered by the bill, and
the amendment does that.
Recent litigation against the tobacco industry has inspired
lawsuits against the firearms industry on theories of liability
that would hold it liable for the actions of those who use
their products in a criminal or unlawful manner. Such lawsuits
threaten to rip tort law from its moorings in personal
responsibility and to force firearms manufacturers into
bankruptcy. While some of these lawsuits have been dismissed
and some States have acted to limit them in one way or another,
the fact remains that these lawsuits continue to be
aggressively pursued. Lawsuits seeking to hold the firearms
industry responsible for the criminal and unlawful use of its
products are brazen attempts to accomplish through litigation
what has not been achieved by legislation in the democratic
process. Various courts have correctly described such suits as,
quote, ``Improper attempts to have the court substitute its
judgment for that of the legislature,'' unquote. As explained
by another judge, quote, ``The plaintiffs' attorneys simply
want to eliminate handguns.''
Under the currently unregulated tort system personal injury
lawyers are seeking to obtain through the courts stringent
limits on the sale and distribution of firearms beyond the
Court's jurisdictional boundaries. Such State lawsuits in a
single county could destroy a national industry and deny
citizens nationwide the right to keep and bear arms as
guaranteed by the Constitution.
Insofar as these lawsuits have the practical effect of
burdening interstate commerce in firearms, Congress also has
the authority to act under the Commerce Clause of the
Constitution.
In 1985 one Federal judge said it would be nonsensical to
claim that a product can be defective under the law when it has
no defect. He predicted that the plaintiff's unconventional
application of tort law against such a product would also apply
to automobiles, knives and even high-calorie food. Heaven
forbid.
In 1999 another judge observed that cities suing the
firearms industry, quote ``have envisioned the dawning of a new
age of litigation during which the gun industry, the liquor
industry and purveyors of junk food could follow the tobacco
industry in reimbursing Government expenditures,'' unquote.
Only a few years later a disastrous new age of litigation
is already upon us, and even once fanciful lawsuits against
fast food companies are proliferating. Congress must do what it
can to stop the slide down the slippery slope. I hope this bill
is adopted, and recognize the gentleman from Michigan.
Mr. Conyers. Thank you, Mr. Chairman. I ask unanimous
consent to enter my prepared statement into the record.
Chairman Sensenbrenner. Without objection the statement
will be entered, and without objection all Members may insert
opening statements in the record. Gentleman from Michigan.
[The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I have a number of concerns with the legislation before us.
First, contrary to the assertions of many of the bill's proponents,
this bill is not limited to lawsuits brought by cities against the gun
industry for marketing to criminals. Whatever one thinks of those
suits, Members should know that this is a very small part of this bill.
As a matter of fact, the bill is drafted so broadly, it would even
apply to prevent gun enthusiasts who are injured by defective guns from
getting their day in court. In other words, the bill eliminates product
liability lawsuits involving firearms.
In this regard, the bill discourages gun manufacturers from
adopting reasonable design safety enhancements such as ``gun locks'' or
gun safety triggers by substantially limiting the type of permissible
product liability actions that plaintiffs can bring against gun
manufacturers. Section 4 of the bill specifically protects gun
manufacturers and sellers from liability even when they produce and
distribute weapons that expose unassuming purchasers to unreasonable
risks of harms. This provision is far too broad, considering the
increasingly high number of accidents being reported that could have
been prevented if manufacturers had adopted reasonable safety features.
In addition, the bill irresponsibly protects dealers who recklessly
sell to gun traffickers knowing (or with reason to know) that the
trafficker intends to resell the guns to criminals. This exemption from
liability is achieved as a result of the bill's narrow definition of
``negligent entrustment''. The bill defines ``negligent entrustment''
to include only initials transfers completed between the original
seller and purchaser of a gun. It does not include secondary transfers
even when the original seller is aware of the purchaser's intent to
resell to a particular individual.
Another problem with the bill is that is shields sellers and
manufacturers from liability even where they engage in unlawful sales.
In other words, the bill applies to persons who sell guns in violation
of the Brady law. For example, you can sell a gun to an individual who
has been convicted of domestic violence and still be immune from
liability under this bill. To me, this is not a desirable public policy
outcome.
Finally, the bill undermines the Supreme Court's longstanding
interpretation of the Second Amendment to the Constitution by including
in its findings language conferring an individual right to keep and
bear arms, without qualifying this right as the Court has repeatedly
done. Over the past sixty years, the Supreme Court has gone to great
lengths to explain that the right conferred by the Second Amendment
only exists in relationship ``to the preservation or efficiency of a
well regulated militia.''
HR 1036 sends the wrong message to manufacturers, dealers and other
members of the gun industry at a time when our cities and communities
are plagued with random acts of gun violence. I urge a no vote.
[The statement of Mr. King follows:]
Prepared Statement of the Honorable Steve King, a Representative in
Congress From the State of Iowa
Mr. Chairman, The issue we have before us today is of vital
importance. Recent lawsuits against gun manufacturers and dealers are
aimed at driving them out of business. We cannot hold gun manufacturers
and dealers liable for the criminal acts of third parties who are
totally beyond their control.
I strongly support this bill which provides that lawsuits may not
be brought against manufacturers and sellers of firearms or ammunition
if the suits are based on criminal or unlawful use of the product by a
third party and that existing lawsuits must be dismissed.
I am a stalwart defender of our Second Amendment freedoms. I oppose
any attempt to water down the principles embodied in the Second
Amendment. The first and most important reason for the Second
Amendment, as intended by our Founding Fathers, was to provide a
deterrent to tyrants. The Second Amendment not only guarantees citizens
a right to keep and bear arms for self-defense, defense of property,
hunting and other purposes, but it was also intended as a bulwark
against tyranny. The right to keep and bear arms was meant to ensure
that citizens can defend our democratic republic from despots and those
who seek to take away our rights and free society.
[The statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress From the State of Virginia
Thank you, Mr. Chairman, for holding a markup of this important
legislation.
Despite the straightforward language in Article II of our
Constitution regarding the right to bear arms, this right is the
subject of constant bombardment by a select few.
Targeted litigation is one way that an extreme minority can attempt
to bring down the gun industry and thus the supply of lawful firearms
to citizens. Recently, more than thirty cities and counties have filed
lawsuits against the firearms industry alleging that the industry is
liable for the actions of third parties, including those that use the
lawful products in a criminal manner. Because of the prohibitive costs
of defending these targeted lawsuits, the likely result of such
litigation is that many legitimate firearms manufacturers could be
forced to declare bankruptcy. If the courts are so allowed to decide
the fate of gun manufacturers, then the courts will effectively be
regulating the supply of firearms and thus the right of citizens to
bear arms.
However, legislatures, not courts, are the appropriate forums for
deciding the scope of regulation for the firearms industry. Allowing
the courts to create policy concerning these important regulatory
matters would surely violate separation of powers principles.
HR 1036, the Protection of Lawful Commerce in Arms Act, would
prevent plaintiffs from bringing certain civil actions against firearms
manufacturers and sellers for the criminal or unlawful misuse by third
parties of properly made firearms. This bill will help to put an end to
judicial legislating in the firearms field. It will also serve as an
important statement that responsibility for wrongdoing should rest with
the wrongdoer.
As Oliver Wendell Holmes stated in an 1894 Harvard Law Review
article, ``. . . why is not a man who sells fire-arms answerable for
assaults committed with pistols bought of him, since he must be taken
to know the probability that, sooner or later, some one will buy a
pistol of him for some unlawful end? . . . The principal seems to be
pretty well established, in this country at least, that every one has a
right to rely upon his fellow-men acting lawfully . . .''
Thirty-one states have enacted legislation to prevent junk lawsuits
against the firearms industry based on the criminal behavior of others.
Thirty-one states have thus declared that the responsibility for
wrongdoing should rest with wrongdoers. Congress should follow the lead
of the states and enact HR 1036 into law.
Mr. Conyers. And I would like now to yield to the Ranking
Member of the Subcommittee, the gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman, and Ranking Member.
Let me just make several points. First of all, this bill
came to the Subcommittee yesterday for a hearing. We got the
statements of two of the witnesses who were testifying late in
the evening night before last, one yesterday morning at the
time of the hearing. The bill has had no markup in the
Subcommittee, and so I think there is a substantial concern
about whether the Committee and/or Subcommittee has done an
adequate job of looking at the language of such a sweeping
piece of legislation, whether the--whether it's a good idea or
not.
There is also substantial concern about the timing of
this,and our concern is that the bill is being pushed and
rushed at this time, not for substantive reasons but for
political reasons because it just so happens that a couple of
weeks from now the NRA's national convention is being held,
and--or 3 weeks from now the NRA's national convention is being
held, and so there's some question about whether this is really
a substantive effort or whether it is a political effort.
Timing issues aside, let me address the substance of the
bill. First of all, the bill is based on findings that one can
only characterize as a political dream world. They certainly
are not findings that are substantiated in any way by a hearing
record, nor are they findings that are substantiated in any way
by what any court has determined to be the state of the law and
what the Second Amendment says. For example, the second finding
or the first finding in the findings in the bill talks about
the right that is protected by the Second Amendment to the
United States Constitution of citizens to keep and bear arms.
That would be great, except that there's simply no court that
has ever substantiated that that's what the Second Amendment
means. And so we've made maybe an aspirational finding that
some of my colleagues would like to have as a basis for passing
this legislation, but certainly not a finding of fact that any
court has ever substantiated, and it does seem to me that if
there's any place in this body called the Congress, the House
of Representatives, that has an obligation to take the oath
that each Member of this Congress takes seriously to uphold and
defend the Constitution of the United States, if there is any
place that that oath ought to have any integrity, it ought to
be the Judiciary Committee of this House.
And so to adopt a piece of legislation based on erroneous
findings, based on erroneous statements about what the
Constitution says, just seems to me to be a political fanciful
world that we are living in.
Finally----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Watt. As had the Chairman when I walked in the room,
and I was here 3 minutes before the Chairman stopped. I ask
unanimous consent for three additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Watt. I would just say related to the drafting of this
bill, based on what the witnesses at the hearing yesterday said
the purpose of the bill was, the bill goes well, well, well
beyond any of those purposes, and creates some issues that I
think have not been well thought out or researched, and while
we will try to address some of those issues today, I think we
are just doing everybody a disservice in trying to rush to a
markup and favorable reporting of this bill for what appears to
be more a political reason than any kind of--based on any kind
of substantive merit that the bill may have.
I thank the Chairman for his generosity in yielding
additional time, and I'll yield back.
Chairman Sensenbrenner. Are there amendments----
Mr. Conyers. Mr. Chairman, I have an amendment.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 1036 offered by Mr. Conyers.
Page 6, line 9, after ``manufacturer'' add ``user.''
[The amendment follows:]
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Conyers. Chairman, I rise in support of the amendment
which merely expands the scope of the bill to cover users of
firearms as well as manufacturers. If we're going to insulate
people from negligent actions, I think we need to consider
extending the protection not just to sellers but to all users
of firearms.
And so my amendment would flow with the proposal and
interpretations of the Second Amendment that I heard yesterday
at the Committee.
If we're going to insulate gun sellers from liability,
should we not insulate gun users? After all, they can be
harassed by frivolous suits just as well. If the Second
Amendment means what I've been told it means in this Committee,
it should mean the freedom from all negligence suits. Now, I
think it can be argued that we already have the full force of
the criminal laws to crack down on persons who misuse handguns.
Some might think it a waste of time and resources to involve
our courts in civil actions against gun users, and so I hope
that my amendment will be adopted by a majority of Members in
this Committee.
And I return any unused time.
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes in opposition to the amendment. Valentine's Day was
almost 2 months ago, and this amendment I think is attempting
to love this bill to death. Perhaps the Postal Service has been
a little bit slow in delivering the valentines from the
gentleman from Michigan.
But what the amendment does is it turns tort law on its
head because it prohibits a lawsuit against a user of a legal
product for negligence. This is grossly overreaching. I don't
think that the intent of the bill is to do that. The intent of
the bill is to prevent people from suing manufacturers when
someone else uses a firearm in a criminal manner. I would hope
that the amendment would be voted down, and yield back the
balance of my time.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. Thank you, Mr. Chairman. I'm going to rise in
opposition to the amendment too, not because--I think, as my
mother used to say, two wrongs don't make a right. The
underlying bill is a wrong. The amendment would be an
additional wrong. While I understand the reason for the
gentleman offering it, the underlying bill is just as
ridiculous in many respects as the amendment that's being
offered. I'm not--I'm going to resist the temptation to join in
my colleague's effort to make fun of this bill in this way.
This is not fun and games in which we are operating.
As we heard yesterday from one of the witnesses, a former
police officer who had been attacked and shot by a gun that--
and would have his lawsuit eviscerated by this legislation.
This is not a joking matter. Guns are not joking matters. And I
think we have an obligation to respect the use of guns by
people who are using them for legitimate purposes, but we also
have a right to expect a level of responsibility on the part of
manufacturers, designers, sellers, and users of guns, and I
think the current state of the law has developed a reasonable
balance. It needs some tinkering. Maybe some of the gun laws
need to be retooled in some way, but I don't think a massive
change in the tort standards, in the liability standards in
this country is what is called for at this time.
Mr. Conyers. Would the gentleman yield to me?
Mr. Watt. I'm happy to yield to my friend.
Mr. Conyers. I'm discouraged by the nonenthusiasm of the
Ranking Member, but if I could consult with the NRA leader,
Chuck Cunningham, about this amendment, and see what he feels
about it, I would feel a lot better about that.
Where's Chuck? What do you think?
Chairman Sensenbrenner. Well, the Chair will rule that out
of order because this is a markup where----
Mr. Conyers. You can give me a thumbs up, Chuck, if it's
okay.
Chairman Sensenbrenner.--only Members of the Committee can
participate. If the gentleman from Michigan and Mr. Cunningham
want to meet in the hallway, they're perfectly welcome to do
so.
Mr. Conyers. Well, I thank----
Mr. Cannon. Mr. Chairman, no guns in that meeting, right?
Chairman Sensenbrenner. Brass knuckles perhaps.
Mr. Watt. Well, I think this exchange kind of illustrates
the mockery that we are making of this process. The bill itself
is a mockery. We want to treat this subject as fun and games,
but it's not. And I think we are doing ourselves a disservice.
I think we are doing the Judiciary Committee a disservice to
pass a bill out of here that has findings in it that everybody
sitting on this Committee knows are just outrageous and wrong
and inconsistent with what the courts have said the
Constitution means, and inconsistent with what it has meant
throughout the history of this country. We are making a mockery
of ourselves and this process in my opinion. And we can sit
here and joke about it. We can make light of it. But I tell
you, there's nothing worse than seeing some victim of gun
violence to make you understand how serious this bill is, and
the notion that we could talk about taking away----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Conyers. Would the gentleman yield?
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Watt. I ask unanimous consent for one additional
minute.
Chairman Sensenbrenner. Without objection.
Mr. Watt. I yield to the gentleman.
Mr. Conyers. I thank the distinguished Ranking Member of
the Subcommittee.
Mr. Chairman, I withdraw this amendment.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there further amendments?
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentlewoman
from Texas seek recognition?
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Jackson Lee. No. 13 if that's how it's recorded, or No.
1 Jackson Lee.
The Clerk. Mr. Chairman, I don't have an amendment from Ms.
Jackson Lee.
Chairman Sensenbrenner. There is no amendment from Ms.
Jackson Lee. Are there further amendments? Gentleman from North
Carolina, for what purpose do you seek recognition?
Mr. Watt. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Watt. Let me just make sure I know which one. Let's do
Watt No. 2.
Chairman Sensenbrenner. The clerk will report Watt 2.
The Clerk. Mr. Chairman, I don't have Mr. Watt's amendment.
Chairman Sensenbrenner. Are there further amendments?
Mr. Watt. We're getting ready to correct that problem, Mr.
Chairman. It's right there.
Chairman Sensenbrenner. There are no further amendments.
The question----
Mr. Watt. I have an amendment at the desk, Mr. Chairman.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to the amendment in the nature of a
substitute to H.R. 1036 offered by Mr. Watt. Page 1, line 10,
after ``manufacturers'' strike ``distributors, dealers and
importers.'' Page 1----
Chairman Sensenbrenner. Without objection the amendment
is----
Mr. Watt. I object.
Chairman Sensenbrenner. The clerk will continue to read.
The Clerk. Page 1, line 15, after ``manufacture'' strike
``importation, possession, sale and use.''
Page 2, line 5, after ``design'' strike the comma and
insert ``and.''
Chairman Sensenbrenner. Without objection the----
Mr. Watt. I object.
Chairman Sensenbrenner. The clerk will continue to read.
The Clerk. Page 2, line 5, after ``manufacture'' strike all
that follows through the word ``public'' on line 6.
Page 2, line 13 through----
Mr. Cannon. Mr. Chairman, point of order.
Chairman Sensenbrenner. Gentleman from----
Mr. Cannon. If the other side needs time to prepare their
amendments, could we take a 5-minute recess of something
instead of going through this charade of reading a long----
Chairman Sensenbrenner. Well, that is not a valid point of
order. Does the gentleman ask unanimous consent for a 5-minute
recess?
Mr. Cannon. I do.
Chairman Sensenbrenner. Without objection the Committee
will be recessed for 5 minutes.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order.
Pending at the time of the recess was an amendment to the
amendment in the nature of a substitute offered by the
gentleman from North Carolina, Mr. Watt.
The clerk will continue to read.
The Clerk. Page 2, lines 13 and 14, strike ``on an entire
industry'' and insert ``firearm''----
Mr. Cannon. Mr. Chairman, I ask unanimous consent that
reading be----
Mr. Watt. Objection.
Chairman Sensenbrenner. Clerk will continue to read.
The Clerk.--``and ammunition manufacturers.''
Page 3, line 18, strike ``distributors, dealers and
importers.''
Page 3, line 20, strike ``or unlawful.''
Page 4, line 11, after ``manufacturers'' strike the comma
and all that follows through ``associations'' on line 13.
Page 5, line 6, after ``Code'' strike the comma and all
that follows through ``ammunition'' on line 11.
Page 6, lines 10 through 11, strike ``or seller of a
qualified product or a trade association.''
Page 6, line 12, strike ``or unlawful.''
Page 6, strike lines 15 through 23.
Page 6, line 24, strike ``(iii)'' and insert ``(i)''.
Page 6, line 25, strike ``or seller of.''
Page 7, lines 2 through 3, strike ``sale or marketing'' and
insert ``design or manufacturer.''
Page 7, line 6 strike ``(iv)'' and insert ``(ii)''.
Page 7, line 9, strike ``(v)'' and insert ``(iii)''.
Page 7, strike line 13 and all that follows through page 8,
line 18.
Page 8, line 19, strike ``(7)'' and insert ``(6)''.
Page 9, strike line 3 and all that follows.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from North Carolina's
recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. I would just say to the
Members of the Committee, I had this read in an effort to
return us to a serious deliberation about this bill, and
contrary to what my friend, Mr. Cannon suggested, in an effort
to make sure that you all read what I had written and what was
being proposed and that somebody understood it, not that I had
read it. I had already read it many times.
The reason I offer this amendment is because based on all
of the testimony that was offered at the hearing yesterday,
this is what the witnesses said the bill was designed to do.
The bill, as it's drawn, applies to manufacturers,
distributors, sellers, dealers, importers, the whole range of
people involved in the gun distribution industry. The effect of
this amendment would be to limit the immunity that this bill
gives to manufacturers only. And if that's what the purpose
that was set out to accomplish was, and that's what all of the
testimony yesterday suggested, then I think--and if we're going
to have a serious deliberation about the merits or lack of
merits of this bill, then I think it needs to be in the context
of this amendment, because as we submitted evidence yesterday
and illustrated there is substantial irresponsible conduct
being--taking place on the part of sellers and dealers in this
industry.
The manufacturers have in fact done a reasonably good job
of trying to, some of them, trying to respond to the danger of
the instruments that they produced and put into the
marketplace. Some of them have adopted the notion of trigger
locks and safety locks and the high-tech kinds of things. They
are trying to make an effort to make their products safer, and
when kids get them, not to have them injured and killed, and
even when criminals get them, not to have them injured and
killed.
But there are sellers and dealers in this industry who have
been completely irresponsible, and the GAO report that I'm
getting ready to submit for the record, and I ask unanimous
consent to submit it, indicates----
Chairman Sensenbrenner. Without objection.
[The material referred to follows:]
Mr. Watt.--time after time after time where sellers and
dealers of these instruments have exercised absolutely no
responsibility. And so if you're going to try to reward the
people who are trying to do right by doing something good for
them, then this amendment is the context in which it ought to
be done because it limits the application of this bill solely
to the manufacturers, and they are the ones--and some of them
haven't gone as far as I would like either--but some of them
are trying to make some responsible steps and be responsive to
the public. And if there's a justification for doing any of
this--and I don't think there is--but if there is, it ought to
be done in the context of this amendment because that's what
all the testimony yesterday was designed to strike at, and so
if you are serious about this, rather than simply wanting to
make a joke of it and make our institution a mockery, then what
I would suggest is that we get together and have a bill which
we could spend some time actually talking about, and instead of
making a unanimous consent not to even read what we're looking
at, let's get serious and roll up our sleeves and try to do
something responsible. I yield back.
Mr. Cannon. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Utah.
Mr. Cannon. Mr. Chairman, I move the previous question on
the amendment, the amendment in the nature of a substitute and
the bill.
Chairman Sensenbrenner. The motion is nondebatable. Those
in favor of ordering the previous question on the amendment,
the amendment in the nature of a substitute, and the bill will
say aye.
Opposed no.
The ayes appear to have it.
Mr. Scott. rollcall.
Chairman Sensenbrenner. rollcall is ordered. Those in favor
of ordering the previous question on the amendment, the
amendment in the nature of a substitute, and the bill, will as
your names are called, answer aye; those opposed no, and the
clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Carter?
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. Present.
The Clerk. Mr. Watt, present. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there Members in the chamber
who wish to cast or change their votes? Gentleman from Arizona,
Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Chairman Sensenbrenner. Gentleman from Alabama, Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Chairman Sensenbrenner. Gentleman from Florida, Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Chairman Sensenbrenner. Gentlewoman from Tennessee, Mrs.
Blackburn?
Mrs. Blackburn. Aye.
The Clerk. Mrs. Blackburn, aye.
Chairman Sensenbrenner. Further Members in the chamber who
wish to cast or change their vote? If not, the clerk will
report.
The gentleman from California, Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Chairman, there are 20 ayes, 5 noes and one voting
present.
Chairman Sensenbrenner. And the previous question is
ordered. The question is on agreeing to the amendment offered
by the gentleman from North Carolina, Mr. Watt. Those in favor
will say aye.
Those opposed no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
The question is now on agreeing to the amendment in the
nature of a substitute offered by the----
Mr. Scott. Parliamentary inquiry.
Chairman Sensenbrenner. State your parliamentary inquiry.
Mr. Scott. What was the last vote, prior to this one that
we voted on?
Chairman Sensenbrenner. The previous question.
Mr. Scott. On what?
Chairman Sensenbrenner. The amendment, the amendment in the
nature of a substitute, and ordering the bill reported.
Ms. Jackson Lee. I have an amendment at the desk.
Mr. Scott. What is the pending question?
Chairman Sensenbrenner. The pending question now is on the
agreeing to the amendment in the nature of a substitute offered
by the Chair. Those in favor will say aye.
Opposed no.
The ayes appear to have it. The ayes have it. The amendment
in the nature of a substitute is agreed to. The question is now
on reporting the bill----
Ms. Jackson Lee. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The previous question has been
ordered. An amendment in the nature of a substitute has already
been adopted. No more amendments are in order.
The question----
Mr. Watt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The previous question has been
ordered. No more debate is in order.
The question is on ordering the bill reported favorably as
amended. Those in favor will say aye.
Those opposed no.
A reporting quorum is present. The ayes appear to have it.
Mr. Scott. rollcall.
Chairman Sensenbrenner. rollcall is requested. The question
is on reporting the bill favorably as amended by the amendment
in the nature of a substitute. Those in favor will as your
names are called answer aye; those opposed no; and the clerk
will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Carter?
Mr. Carter. Aye.
The Clerk. Mr. Carter, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
Mrs. Blackburn. Aye.
The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Ms. Baldwin?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional Members in the
chamber who wish to cast or change their votes? Gentleman from
Arizona, Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Chairman Sensenbrenner. Further Members in the chamber who
wish to cast or change their votes? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 21 ayes and 11 noes.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to. Without objection the Chairman is authorized to
move to go to conference pursuant to House rules. The business
before this Committee----
Ms. Jackson Lee. Mr. Chairman, a parliamentary inquiry?
Chairman Sensenbrenner. The gentlewoman will state her
parliamentary inquiry.
Ms. Jackson Lee. Is it the rule of this Committee for the
majority to be so singularly partisan that they would deny the
opposition the right to offer amendments?
Chairman Sensenbrenner. That is not a proper parliamentary
inquiry.
Ms. Jackson Lee. The right to offer amendments? Shame on
you all. It's a disgrace.
Chairman Sensenbrenner. That is not a proper parliamentary
inquiry.
Ms. Jackson Lee. Thank you, Mr. Chairman. It's a disgrace.
This Committee is a disgrace.
Chairman Sensenbrenner. Well, if the gentlewoman wishes to
resign, she can send her resignation to the speaker.
[Laughter.]
Ms. Jackson Lee. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The business that has come before
this Committee has been concluded, and the Committee stands
adjourned.
[Whereupon, at 10:44 a.m., the Committee was adjourned.]
Dissenting Views
The undersigned oppose H.R. 1036, the ``Protection of
Lawful Commerce in Arms Act,'' and strenuously object to the
process by which it was adopted by the Committee. The maneuvers
employed by the Majority to quell dissent of its special
interest legislation are all too transparent and occurring with
alarming frequency in this Committee. The partisan manner in
which this bill was rushed through the Committee constitutes a
major disservice to the American public who expect their
representatives to engage in a deliberative effort when
constructing legislation of such magnitude.
H.R. 1036 was noticed for a legislative hearing in the
Subcommittee on Commercial and Administrative law. The hearing
was held on April 2, 2003, 1 day prior to the markup in the
Full Committee. The Subcommittee process did not lend itself to
a thorough consideration of the bill given that two of the
three witnesses invited by the Majority submitted their
testimony late. The testimony of one witness was submitted
under an hour before the hearing began. Notwithstanding the
tardiness of the testimony, the interest of the Minority in
fully exploring the ramifications of the bill was eminently
evident at the Subcommittee hearing. Both the Ranking Member of
the Full Committee, Mr. Conyers, and the Ranking Member of the
Subcommittee on Crime, Mr. Scott, attended and actively
participated in the Subcommittee hearing. Moreover, at the
request of the Minority, members were granted unanimous consent
to propound additional questions in writing to the panel of
witnesses--the answers to which will have no bearing on
Members's evaluation of the bill which is already scheduled for
consideration on the Floor.
The Full Committee markup provided even less process for
Members of the Minority to exercise their right as
representatives to participate in the drafting of comprehensive
legislation that may affect the vested interests of many of
their constituents. After one Democratic amendment had been
offered and withdrawn, and during the pendency of only the
second Democratic amendment offered by Mr. Watt, the Ranking
Member of the Subcommittee from which the bill originated, the
Majority cut off debate by moving the previous question on the
amendment, the amendment in the nature of a substitute, and the
bill. Mr. Watt's amendment was based upon the testimony
received before the Subcommittee which suggested a lack of
nexus between the design and manufacturing of a gun that was
criminally used to injure or kill another. The amendment would
have immunized manufacturers from such liability, while
permitting negligence actions against sellers, dealers, and
distributors to proceed.
Despite the substance of the amendment, the Majority--
apparently angered by Mr. Watt's insistence, as was his right,
that the amendment (which was a little over one page) be read
\1\--moved the previous question. The bill was then reported,
without any objection from the Majority, even though
approximately one dozen substantive Democratic amendments were
awaiting consideration.\2\ The dispatch with which the Majority
scheduled this bill for a hearing, markup, and Floor
consideration lends credence to the conjecture that passage of
H.R. 1036 is less about remedying a perceived boom of frivolous
lawsuits as it is delivering a pro-gun bill in advance of the
NRA's late April annual convention. We object to the
``process'' and delineate our substantive concerns below.
---------------------------------------------------------------------------
\1\ Mr. Watt explained: ``I would just say to the members of the
committee, I had this read in an effort to return us to a serious
deliberation about this bill, and . . . in an effort to make sure that
you all read what I had written and what was being proposed. . . .''
Transcript, Markup of H.R. 1036, the ``Protection of Lawful Commerce in
Arms Act,'' Thurs., Apr. 3, 2003 (House of Representatives Committee on
the Judiciary), at p. 21.
\2\ In addition to several other amendments by Mr. Watt, at least
four other Democrats, including Mr. Conyers, Mr. Scott, Ms. Lofgen, Ms.
Jackson Lee, had amendments at the desk waiting to be offered.
---------------------------------------------------------------------------
I. BACKGROUND AND SUMMARY
H.R. 1036, the ``Protection of Lawful Commerce in Arms
Act'' prohibits civil liability actions from being brought or
continued (the bill applies to pending cases) against
manufacturers, distributors, dealers, or importers of firearms
or ammunition for damages resulting from the ``criminal or
unlawful misuse'' of their products by the injured party or
others. The bill, which was introduced on February 27, 2003,
and referred to the Judiciary Committee is similar to two bills
introduced during the 107th Congress. H.R. 123, the ``Firearms
Heritage Protection Act of 2001'' was introduced by Rep. Bob
Barr in January 2001 with 62 co-sponsors and referred to the
Judiciary Committee. No action was taken on the bill. H.R.
2037, the ``Protection of Lawful Commerce in Arms Act'' was
introduced by Rep. Cliff Stearns in May 2001 and referred to
the House Energy and Commerce and Judiciary Committees. H.R.
2037 was marked up in both House Committees, reported out and
placed on the Union Calendar in early October 2002.
Days after H.R. 2037 was placed on the House calendar, the
Washington, DC area was besieged by a sniper(s) who
indiscriminately gunned down innocent victims with a high
caliber rifle. In the aftermath of the sniper shooting, no
further action was taken on the bill last term. H.R. 1036, like
its predecessor, however, would eviscerate actions by survivors
of victims of the Beltway sniper now pending against segments
of the gun industry for negligent distribution of the
Bushmaster rifle used in the killings.
Over the past few years, more than thirty-four governmental
entities have filed suit against gun manufacturers,
distributors and trade associations in an attempt to bring to
an end marketing and distribution schemes that place guns in
the hands of criminals. Relying on public nuisance theories and
claims of product liability violations, these various
municipalities targeted the gun industry for displaying an
utter indifference to the safety of their communities and
cities through their faulty design and selling of guns. During
the last term of Congress, of the thirty-four suits, eighteen
had won favorable rulings on the legal merits of their claims;
five were battling motions to dismiss; four had their claims
dismissed; and seven ended without success.
H.R. 1036, as was its predecessors, was introduced
presumably in response to these lawsuits. The bill prohibits
civil actions from being brought against manufacturers or
distributors of firearms or ammunition products, or trade
associations of such manufacturers or distributors, for damages
resulting from the criminal or unlawful misuse of a firearm by
the injured person or by a third party. The bill further
requires the dismissal of any action encompassed by the bill
pending on the date of the bill's enactment. Under the specific
terms of the bill, only five specified causes of action would
be permissible against protected members of the gun industry.
They are (1) transfers where the transferor has been convicted
of violating Section 924(h) of title 18; (2) actions alleging
negligent entrustment (as defined in the bill) or negligence
per se; (3) actions alleging knowing and willful violation of a
Federal or State law relating to the sale or marketing of the
product, where the violation was the proximate cause of the
harm; (4) breach of contract or warranty claims; and (5)
actions for physical injury or property damage directly due to
the design or manufacturer of the product, when used as
intended.\3\
---------------------------------------------------------------------------
\3\ H.R. 1036, Sec. 4. DEFINITIONS, (5) Qualified civil liability
action.--(A)(i)-(v), at pp. 7-8 (emphasis added).
---------------------------------------------------------------------------
II. SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title. ``Protection of Lawful Commerce in Arms Act''.
Sec. 2(a). Findings. Sets forth legislative findings in support of this
title. The key findings are as follows:
(1) Citizens have a right, under the Second Amendment to
the U.S. Constitution, to keep and bear arms.
(2) Lawsuits have been commenced against manufacturers,
distributors, dealers, and importers of firearms that operate
as designed and intended seeking money damages and other relief
for the harm caused by the misuse of firearms by third parties.
(3) The manufacture, importation, possession, sale, and use
of firearms and ammunition in the U.S. is heavily regulated by
Federal, State and local laws.
(4) Businesses engaged in the lawful design, marketing,
distribution, manufacture, importation, or sale to the public
of firearms or ammunition that have been shipped or transported
in interstate or foreign commerce are not, and should not be,
liable for the harm caused by those who criminally or
unlawfully misuse firearm products or ammunition products that
function as designed and intended.
(5) The possibility of imposing liability on an entire
industry for harm that is the sole responsibility of others is
an abuse of the legal system, erodes public confidence in our
Nation's laws, threatens the diminution of a basic
constitutional right and civil liberty, invites the disassembly
and destabilization of other industries and economic sectors
lawfully competing in America's free enterprise system, and
constitutes an unreasonable burden on interstate and foreign
commerce.
(6) The liability actions commenced or contemplated by
governmental entities and private interest groups are based on
theories without foundation in hundreds of years of the common
law and American jurisprudence. The possibility that a
``maverick'' judge or jury would sustain these actions would
constitute an expansion of civil liability in a manner never
contemplated by the Framers of the Constitution. Finally, such
an expansion of liability would constitute a deprivation of the
rights, privileges, and immunities guaranteed to a citizen of
the United States under the Fourteenth Amendment to the U.S.
Constitution.
(b) Purposes. Outlines the purposes of the Act which
include: (1) prohibiting causes of actions against
manufacturers, distributors, dealers, and importers of firearms
or ammunition products for harm caused by third parties when
the product functioned as designed and intended; (2) preserving
citizen access to firearms and ammunition for lawful purposes;
(3) guaranteeing a citizen's rights, privileges, and immunities
under the Fourteenth Amendment to the U.S. Constitution; (4)
preventing the use of such lawsuits to impose unreasonable
burdens on interstate and foreign commerce; and (5) protecting
the First Amendment rights of manufacturers, distributors,
dealers, and importers of firearms or ammunition products, and
trade associations to speak freely, assemble peaceably, and
petition the Government for redress of their grievances.
Sec. 3. Prohibition on Bringing of Qualified Civil Liability Actions in
Federal or State Court.
(a) In General. This provision prohibits any person from
bringing a ``qualified civil liability action'' in any Federal
or State court.
(b) Dismissal of Pending Actions. This provision requires
courts to dismiss any ``qualified civil liability'' action
wherever pending on the date of enactment of this Act.
Sec. 4. Definitions.
(1) Engaged in the Business. Defines the term ``engaged in
the business'' as that provided in section 921(a)(21) of title
18, U.S.C., and as applied to a seller of ammunition, means a
person who ``devotes, time, attention, and labor to the sale of
ammunition as a regular course of trade or business with the
principled objective of livelihood through the sale or
distribution of ammunition.'' \4\
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\4\ 18 U.S.C. Sec. 921(a)(21)(A)-(F) defines the term `engaged in
the business'' as it relates to (a) a manufacturer of firearms; (b) a
manufacturer of ammunition; (c)a dealer in firearms as defined in
921(a)(11)(A), i.e., ``any person engaged in the business of selling
firearms at wholesale or retail''; (d) a dealer in firearms as defined
in 921(a)(11)(B), i.e., ``any person engaged in the business of
repairing firearms or the making or fitting special barrels, stocks, or
trigger mechanisms to firearms''; (e) an importer of firearms; and (f)
an importer of ammunition in identical terms as that provided in H.R.
1036 as it relates to a seller of ammunition. 921(a)(21) does not
include in its definition of ``engaged in the business,'' a dealer in
firearms as defined in 921(a)(11)(C), who is a pawnbroker.
---------------------------------------------------------------------------
(2) Manufacturer. Defines ``manufacturer'' as (a) a person
engaged in a business of manufacturing the product in
interstate or foreign commerce and (b) who is licensed to
engage in such business under chapter 44 of title 18, U.S.C.
(3) Person. Defines the term ``person'' as any individual,
corporation, company association, firm, partnership, society,
joint stock company, or any other entity, including any
governmental entity.
(4) Qualified Product. Defines a ``qualified product'' as a
firearm (defined in Section 921(a)(3) of title 18) including
any antique firearm (defined in Section 921(a)(16) of title
18), or ammunition (defined in section 921(a)(17) of title 18),
or a component of either that has been shipped in interstate or
foreign commerce.
(5) Qualified Civil Liability Action.1 (A) IN GENERAL:
Defines a ``qualified civil liability action'' as an action
brought by any person against a manufacturer or seller of a
qualified product, or trade association, for damages resulting
from the ``criminal or unlawful misuse of a qualified product
by the person or a third party.'' Excluded from the definition
are (1) transfers where the transferor has been convicted of
violating Section 924(h) of title 18; (2) actions alleging
negligent entrustment or negligence per se; (3) actions
alleging knowing and wilful violation of a Federal or State law
relating to the sale or marketing of the product, where the
violation was the proximate cause of the harm; (4) breach of
contract or warranty claims; and (5) actions for physical
injury or property damage directly due to the design or
manufacture of the product when used as intended. (B) NEGLIGENT
ENTRUSTMENT: Defines the term ``negligent entrustment'' as the
provision of a qualified product by a seller to another person
when the seller knows or should have know that the person to
whom the product was provided is likely to, and in fact does,
use the product in a manner involving unreasonable risk of
physical harm to others.
(6) Seller. Defines a ``seller'' of a qualified product as
(a) an importer (as defined in 921(a)(9), title 18 U.S.C.)
licensed pursuant to chapter 44 of title 18 to engage, and is
so engaged, in the business of an importer in interstate or
foreign commerce; (b) a dealer (as defined in 921(a)(11), title
18 U.S.C.\5\), licensed under chapter 44 of title 18 to engage,
and is so engaged, in business as a dealer in interstate or
foreign commerce; and (c) a person engaged in the business of
lawfully selling ammunition (as ``ammunition'' is defined in
921(a)(17), title 18, U.S.C.\6\) in interstate or foreign
commerce at the wholesale or retail level.
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\5\ Under this section, a seller would include a pawnbroker as
defined in 921(a)(11)(C), title 18, U.S.C.
\6\ Ammunition covered by this bill as defined by 18 U.S.C.
Sec. 921(a)(17) includes ``ammunition or cartridge cases, primers,
bullets, or propellent powder designed for use in any firearm'' and
``armor piercing ammunition.'' Armor piercing ammunition, as defined in
section 921, includes projectiles, projectile cores or full jacketed
projectiles larger than .22 caliber which may be used or which are
designed and intended to be used in a handgun. Section 921 further
provides, however, that
`armor piercing ammunition' does not include shotgun shot
required by Federal or State environmental or game
regulations for hunting purposes, a frangible projectile
designed for target shooting, a projectile which the
Secretary finds is primarily intended to be used for
sporting purposes, or any other projectile or projectile
core which the Secretary finds is intended to be used for
industrial purposes, including a charge used in an oil and
---------------------------------------------------------------------------
gas well perforating device.
18 U.S.C. Sec. 921(a)(17)(C) (emphasis added).
(7) State. Defines a ``state'' as any of the several States
of the U.S., the District of Columbia, any U.S. territory, or
other possession of the U.S. and any political subdivisions
thereof.
(8) Trade Association. Defines a ``trade association'' as
any association or organization, whether incorporated or not,
that is not operated for profit and whose members consist of
two or more manufacturers or sellers of a qualified product.
III. POLICY CONCERNS
A. THE BILL IMMUNIZES GUN MANUFACTURERS AND SELLERS FROM LIABILITY
UNDER MOST NEGLIGENCE AND COMMON LAW PRINCIPLES.
Under current law, a gun dealer may be liable for shootings
using guns negligently sold to a trafficker, for example, where
the dealer sold 50 or 100 guns to a person who clearly intended
to resell them to criminals.\7\ Under H.R. 1036, these dealers
would be immunized from liability, despite their negligent
conduct. Victims of gun industry misconduct would also be
denied a remedy under public nuisance law. Only in the narrow
class of cases enumerated in Section 4 of the bill (e.g., when
a dealer knowingly transferred a gun to someone despite knowing
it would be used to commit a crime of violence or a drug
trafficking crime, or when the dealer negligently entrusted the
gun to a shooter, or a plaintiff files a negligence per se
case) would plaintiffs be permitted to seek relief for their
foreseeable injuries. H.R. 1036 would even immunize from
liability gun dealers found guilty of violating most Federal
gun laws (except 18 U.S.C. 924(h)), unless such violation was
knowing and wilful and was the proximate cause of the harm for
which relief is sought.
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\7\ Former police officer, David Lemongello, who testified at the
subcommittee hearing upon the recommendation of the Ranking Member,
Melvin Watt, is presently engaged in litigation alleging such a ``sham
purchase.'' Officer Lemongello and his partner were severely injured in
a shootout by a gun that had been purchased by a criminal in a bulk,
cash sale of 12 firearms.
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B. THE BILL DISCOURAGES GUN MANUFACTURERS FROM ADOPTING PRODUCT SAFETY
ENHANCEMENTS.
Under existing product liability law in most States,
manufacturers must include feasible safety devices that would
prevent injuries caused when their products are foreseeably
misused, regardless of whether the victim's injury also was
caused by the unlawful conduct of the victim or a third party.
H.R. 1036 discourages gun manufacturers from adopting
reasonable design safety enhancements such as ``gun locks'' or
safety triggers by substantially limiting the type and scope of
permissible product liability actions. Under this bill, gun
manufacturers face no liability for failing to implement safety
devices that would prevent foreseeable injuries, provided the
individual who possessed the gun was a child or some other
person not permitted to possess a gun. This ``unlawful use''
under the bill would insulate the manufacturer from avoidable
accidental injury.
C. THE BILL UNDERMINES THE SUPREME COURT'S LONGSTANDING INTERPRETATION
OF THE SECOND AMENDMENT TO THE U.S. CONSTITUTION.
As part of the bill's findings, Section 2 of the bill
declares that ``[c]itizens have a right, protected by the
Second Amendment to the United States Constitution, to keep and
bear arms''. This blanket statement is made absent any
qualification and ultimately undermines the plain language
wording of the Second Amendment which describes the right in
relation to ``a well regulated militia, being necessary to
security of a free State.'' \8\ Regrettably, it also disregards
over sixty years of U.S. Supreme Court precedent that has
interpreted the right to bear arms to exist based upon ``some
reasonable relationship to the preservation or efficiency of a
well regulated militia.'' \9\
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\8\ U.S. Const. Amend II.
\9\ U.S. v. Miller, 307 U.S. 174, 178 (1939). Mr. Scott, Ranking
Member of the Subcommittee on Crime, was deprived of an opportunity to
offer an amendment which would have addressed the fallacy of this
finding. Indeed, in Miller, the Supreme Court declared that the Second
Amendment right ``to keep and bear Arms'' applies only to the right of
the State to maintain a militia and not to the individual's right to
bear arms. More specifically, the Court stated that the ``obvious
purpose'' of the Second Amendment was ``to assure the continuation and
render possible the effectiveness'' of the State militia and that the
amendment ``must be interpreted and applied with that end in view.''
Thus, the Second Amendment does not protect individual ownership of
guns and does not constitute a barrier to Congressional regulation of
firearms.
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D. THE NARROW EXCEPTIONS IN H.R. 1036 WILL NOT PROTECT MOST VICTIMS OF
GUN INDUSTRY NEGLIGENCE.
H.R. 1036 would deprive gun violence victims of their legal
rights in cases involving a wide range of industry misconduct.
The bill generally prohibits any action ``brought by any person
against a manufacturer or seller of a qualified product, or a
trade association, for damages resulting from the criminal or
unlawful misuse of a qualified product by the person or a third
party.'' This radically rewrites well-accepted principles of
liability law, which generally hold that persons and companies
may be liable for the foreseeable consequences of their
wrongful acts, including the foreseeable criminal conduct of
others.
The New Mexico Court of Appeals recently wrote in a case
involving an accidental shooting by a teenager that
``[s]uppliers are responsible for risks arising from
foreseeable uses of the product, including reasonably
foreseeable unintended uses and misuses.'' In the last 2 years
alone, the Supreme Court of Ohio \10\, and appeals courts in
New Mexico \11\, Illinois \12\ and New Jersey \13\, have held
that a gun manufacturer or seller can be liable for the
criminal use of guns, if that use is a foreseeable result of
the manufacturer's or seller's negligence or other wrongful
conduct. Because most cases brought by gun violence victims
involve ``criminal or otherwise unlawful misuse'' of a gun that
was caused or facilitated by a gun manufacturer or seller, the
bill amounts to an unprecedented attack on the legal rights of
such victims.\14\
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\10\ Cincinnati v. Beretta, et. al., 768 N.E.2d 1136 (Oh. 2002).
\11\ Smith v. Bryco, 33 P.3d 638 (N.M. App. 2001).
\12\ Young v. Bryco, et.al., 765 N.E.2d 1 (Ill. App. 2002) (appeal
pending).
\13\ Hurst v. Glock, 684 A.2d 970 (N.J. App. 1996).
\14\ For example, a gun manufacturer may fail to include a feasible
safety device, and as a result of that failure a child may
unintentionally shoot another child. It is, of course, entirely
foreseeable to the manufacturer that children will have access to guns.
Under generally-accepted principles of products liability law, the
manufacturer could be liable because the shooting was a foreseeable
result of not including the safety device. Similarly, auto
manufacturers are liable for injuries that could have been prevented by
feasible safety features, even in accidents that involve speeding or
other unlawful use of a car. However, under this bill, the gun
manufacturer would be immune from suit because the child's possession
and use of the gun, although foreseeable to the manufacturer, would be
unlawful.
---------------------------------------------------------------------------
Also, a gun seller may supply criminals with the means to
kill by irresponsibly selling 10, 25, or 100 guns to a gun
trafficker, as was the case with the injury suffered by the
Minority witness at the Subcommittee hearing, former Officer
Lemongello. Under generally accepted legal principles, such a
sale could be negligent since the foreseeable result is that
the trafficker will sell one of the guns to a criminal who will
use that gun in crime. In Officer Lemongello's case, a West
Virginia Circuit Court judge recently held that the gun dealer,
who sold 12 guns in a cash sale, under suspicious
circumstances, could be liable under that State's law of
negligence and public nuisance for failing to use reasonable
care in its sale, and that a jury could find that the
subsequent criminal shooting was a foreseeable result of the
negligent sale.\15\ However, under this bill, dealers would be
immune from liability if the guns are used in crime. Nor will
the specific narrow exceptions in the legislation protect the
rights of most of the victims who have been harmed by
irresponsible gun manufacturers and sellers.
---------------------------------------------------------------------------
\15\ McGuire and Lemongello v. Will Co.,Inc., et. al., No. 02-C-
2952 (Cir. Ct. Kanawha County, W.Va.) (March 19, 2003).
---------------------------------------------------------------------------
1. TRANSFEROR CONVICTED UNDER 924(H) OF TITLE 18, U.S.C
The first exception in H.R. 1036 is for ``an action brought
against a transferor convicted under section 924(h) of title
18, United States Code, or a comparable or identical State
felony law, by a party directly harmed by the conduct of which
the transferee is so convicted.''
LSection 924(h) of title 18, U.S. C. provides:
``whoever knowingly transfers a firearm, knowing that
such firearm will be used to commit a crime of violence
(as defined in (c)(3)) or drug trafficking crime (as
defined in subsection (c)(2)) shall be imprisoned not
more than 10 years, fined in accordance with this
title, or both.''
LThis exception would only allow lawsuits
against dealers who are convicted of selling guns
knowing that they will be used to commit a violent or
drug trafficking criminal offense under Federal or
State law. In other words, it applies only in the
unlikely event that a gun buyer clearly indicates his/
her criminal intentions to the gun seller and is also,
in fact, convicted of the specific crime.\16\ Under
this exception, a prosecutor's decision--even if
justified--not to pursue a particular prosecution, or
to accept a plea bargain to a lesser offense may
operate to deny relief to one harmed as a result of a
negligent transfer.
---------------------------------------------------------------------------
\16\ Mr. Scott was prepared to offer an amendment which would have
eliminated this unprecedented ``criminal conviction predicate,''
requiring prosecution and conviction as a condition for bringing suit
for civil relief.
LThis exception would not preserve the pending
case brought by the family of former Northwestern
University basketball coach Ricky Byrdsong.\17\ Mr.
Byrdsong was walking with his children in Skokie,
Illinois when he was shot and killed with one of 72
guns sold to an Illinois gun trafficker by a dealer
over a period of a year and a half. The dealer clearly
should have known that the trafficker did not need 72
guns for his own use, but intended to sell them to
criminals. Since the dealer did not know specifically
to whom the trafficker would sell, or what specific
crimes his customers would commit, Mrs. Byrdsong's case
would not fall within this exception.
---------------------------------------------------------------------------
\17\ Anderson v. Bryco, et al., No. 00 L 7476 (Cir. Court of Cook
County, Ill.).
---------------------------------------------------------------------------
2. NEGLIGENT ENTRUSTMENT AND NEGLIGENCE PER SE
The bill also includes an exception for actions against gun
sellers under the legal doctrines of negligent entrustment and
negligence per se. This exception does not preserve any cases
against gun manufacturers, and only protects a limited class of
cases against sellers.
(a) Negligent Entrustment
LNegligent entrustment is defined in the bill
as: ``the supplying of a qualified product by a seller
for use by another person when the seller knows, or
should know, the person to whom the product is supplied
is likely to, and does, use the product in a manner
involving unreasonable risk of physical injury to the
person and others.''
LThis exception would cover only cases where
the dealer knows or should know that the person who is
buying the gun is likely to misuse it and the buyer
does, in fact, misuse it. Like the previous exception,
this would still shut the courthouse door to victims of
the far more common practice of dealers negligently
selling guns to traffickers who, in turn, supply
criminals.
LUnder this exception, not only would the
previously-mentioned Byrdsong case be barred, but the
bill would deny relief to Minority witness, former New
Jersey police officer Lemongello and his partner, who
were shot with a handgun sold as part of a 12-handgun
sale by a West Virginia dealer to a ``straw buyer'' for
a gun trafficker.\18\ Even though the dealer who
irresponsibly supplied the gun trafficker with multiple
guns should have known the guns would be sold to and
used by criminals, they arguably did not ``negligently
entrust'' the guns since the persons to whom they sold
the guns were not the shooters.
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\18\ McGuire and Lemongello v. Will Co., Inc., No. 02-C-2952, (Cir.
Court, Kanawha County, W.Va.)
LBecause negligent entrustment is not even
recognized in every State, in some States this
``exception'' would have absolutely no effect in
preserving claims of those harmed by the foreseeable
conduct of those to whom guns are negligently sold.\19\
---------------------------------------------------------------------------
\19\ E.g., Regan v. Nissan North America, Inc., 810 A.2d 255 (R.I.
2002) (Rhode Island does not recognize negligent entrustment theory).
---------------------------------------------------------------------------
(b) Negligence Per Se
LNegligence per se is ``the unexcused
violation of a legislative enactment or an
administrative regulation which is adopted by the court
as defining the standard of conduct of the reasonable
man.'' \20\ To be liable for negligence per se, a
defendant must have violated a law or regulation and
the plaintiff must be in the class of victims that the
legislation intended to protect and the court must
conclude that it is ``appropriate'' to deem violation
of the particular statute as per se proof of
negligence.
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\20\ Perry v. S.N., 973 S.W.2d 301 (Tex. 1998). Texas's definition
of ``negligence per se'' is similar to that employed by other States.
LUnder this exception, gun sellers whose
negligence causes injury could not be liable unless, at
a minimum, they also violated a law or regulation that
the court found an ``appropriate basis'' for a
negligence per se claim. This exception would not
preserve the Illinois case discussed above, Anderson v.
Bryco, because even though the dealer was convicted of
violating gun laws in his sale of some guns to the
trafficker, he was not convicted of illegally selling
the gun used to shoot Ricky Byrdsong. The West Virginia
Lemongello case would not be protected by the exception
because the doctrine of negligence per se is not
recognized in West Virginia.\21\ Similarly, since
negligence per se also is not recognized in Washington
State \22\ this exception would not apply to the case
brought in that State by victims of last Fall's sniper
shootings against the gun shop from which the
Bushmaster assault rifle used in the shootings
mysteriously ``disappeared.'' \23\ Moreover, it is not
yet clear that a statutory violation was involved in
the ``disappearance'' of the Bushmaster assault rifle
used to shoot sixteen people. It may have been a case
of negligent store security or storage practices.
---------------------------------------------------------------------------
\21\ Gillingham v. Stephenson, 551 S.E.2d 633 (W.Va. 2001).
Negligence per se also is not an accepted basis for liability in a
number of other States, including Arkansas, North Dakota and Maine.
E.g., Berkeley Pump Co. v. Reed-Joseph Land Co., 653 S.W.2d 128 (Ark.
1983); Brandt v. Milbrath, 647 N.W.2d 674 (N.D. 2002); Crowe v. Shaw,
755 A.2d 509 (Me. 2000).
\22\ See Wash. Rev. Code Ann. Sec. 5.40.050 (1986), abrogating
negligence per se.
\23\ Johnson v. Bull's Eye Shooter Supply, No. 03-2-03932-8
(Sup.Ct.Wa.).
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3. KNOWING AND WILLFUL VIOLATIONS OF LAW
The bill also exempts cases against gun sellers and
manufacturers ``in which a manufacturer or seller of a
qualified product knowingly and willfully violated a State or
Federal statute applicable to the sale or marketing of the
product, and the violation was a proximate cause of the harm
for which relief is sought.''
LThis exception is an even more limited
version of negligence per se. The exemption does not
protect cases against negligent gun sellers or
manufacturers unless they also violate a law and the
case is brought in a State that applies the doctrine of
negligence per se.
LFurther, under this exception, even sellers
who violate laws would not be liable unless that
violation was committed ``knowingly and willfully.''
This is a demanding standard of proof that is difficult
to meet, and that is generally not required to be met
in civil cases.
4. BREACH OF CONTRACT OR WARRANTY
The bill has an exception for ``an action for breach of
contract or warranty in connection with the purchase of the
product.''
LBreach of contract cases occur when one party
to a contract claims the other party has violated a
provision of a contract. This would merely allow gun
purchasers to sue a dealer if, for example, the dealer
did not provide the gun for which the purchaser paid,
or the dealer violated the sales contract in some other
respect.
LA warranty case would challenge a
manufacturer's refusal to repair or replace a product
as it promised under its warranty. This would merely
allow a gun purchaser to sue if, for example, the gun
malfunctioned within the warranty period and the
manufacturer refused to repair or replace it.
LThis exception would only protect gun
purchasers, and would provide no remedies for other
persons injured by guns. Other victims of defectively
designed or negligently sold guns would not be allowed
to pursue their rights in court under this exception.
Even as to gun purchasers, their claims would be
limited only to what they were entitled under the scope
of the contract or warranty.\24\
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\24\ For example, if the manufacturer failed to include a feasible
safety device in the gun, and that failure caused a death or injury,
this exception would not apply to a suit by the victim because he/she
would be suing under negligence or products liability law, but would
not be claiming a breach of contract or warranty. The negligent sales
cases discussed above would also be protected by this exception, as
they are based in negligence, not contract or warranty.
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5. DEFECTIVE DESIGN OR MANUFACTURE WHERE GUN USED AS INTENDED
The bill protects actions ``for physical injuries or
property damage resulting directly from defect in design or
manufacture of the product, when used as intended.'' (Sec.
4(5)(v)).
LThis exception allows cases where, for
example, a gun exploded when it was being fired, as a
result of faulty manufacture or design. In such a case,
the gun was ``used as [the manufacturer] intended,''
but nevertheless malfunctioned. However, the exception
would not apply to most defective design cases actually
brought under traditional products liability theories.
In most such cases the use of the gun, while clearly
foreseeable to the manufacturer, was not ``as
intended.'' This provision alters generally-accepted
principles of products liability law under which a
manufacturer must implement feasible safety features
that would prevent injury caused by foreseeable use or
misuse--even if that use is not ``intended.'' For
example, auto makers are liable for not making cars
``crashworthy,'' regardless of whether a particular
accident may have involved a use of the car--excessive
speed or other driver error--not ``intended'' by the
manufacturer.
LUnder this exception the parents of Kenzo
Dix, whose son was unintentionally shot and killed by a
young friend who thought the gun was unloaded, would be
barred from pursuing their case against the gun
manufacturer.\25\ Even though the manufacturer's
failure to include a feasible safety device would have
alerted Kenzo's friend that the gun was loaded, and
would have prevented him from firing the gun--and the
friend's ``misuse'' was common and predictable--the gun
was not ``used as intended.'' Ironically, however,
similar cases involving ``unintended'' uses, with less
tragic consequences, would be allowed against BB gun
makers.
---------------------------------------------------------------------------
\25\ Dix v. Beretta U.S.A., No. 750681-9 (Sup. Court of Alameda
County, CA).
---------------------------------------------------------------------------
E. H.R. 1036 RAISES CONSTITUTIONAL AND FEDERALISM CONCERNS.
Among the many problems with the legislation, we are also
concerned that the bill may be unconstitutional under the
Commerce Clause, the Fifth Amendment, and the Seventh
Amendment.
First, the bill as drafted invites legal challenges to
Congressional authority to legislate in this area, given the
Supreme Court's recent Commerce Clause jurisprudence. There is
a genuine issue as to whether H.R. 1036 is a permissible
exercise of Congress' power to regulate interstate
commerce,\26\ given that it contains no interstate commerce
jurisdictional requirement, and merely makes a flat and
unsubstantiated assertion that all of the activities it
regulates affect interstate commerce.\27\ The Supreme Court
repeatedly has frowned upon Federal intervention into areas
like liability law that have been traditionally reserved to the
states.\28\
---------------------------------------------------------------------------
\26\ Article I, Section 8 of the Constitution provides, inter alia,
``Congress shall have Power . . . to regulate Commerce with foreign
Nations and among the several States. . . .'' U.S. Const. art I,
Sec. 8, cl. 3.
\27\ According to the Supreme Court in United States v. Lopez, 514
U.S. 549 (1995), one of the problems with the school gun ban was that
it contained ``no express jurisdictional element which might limit its
reach to a discrete set of firearms possessions that additionally have
an explicit connection with or effect on interstate commerce.''
\28\ The Court in Lopez observed that there were certain
traditional areas of state law, such as criminal law and education,
which should be off limits to Federal intervention. The concurrence by
Justices Kennedy and O'Connor also reasoned that the Federal Government
should avoid involving itself in areas which fall within the
``traditional concern of the states,'' noting that over 40 States had
adopted laws outlawing the possession of firearms on or near school
grounds.
---------------------------------------------------------------------------
The bill also invites challenges that it violates the Fifth
Amendment, which provides that no person shall be ``deprived of
life, liberty, or property without due process of law,'' \29\ a
proscription which has been held to include an equal protection
component.\30\ Plaintiffs will no doubt argue that the law does
not provide a legislative quid pro quo and, as such, violates
the Fifth Amendment. In exchange for depriving plaintiffs of
their common law rights, the bill does not provide any
offsetting legal benefits, at least to the parties directly
harmed by the loss of their common law rights.
---------------------------------------------------------------------------
\29\ U.S. Const. amend. V.
\30\ See Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment
due process found to incorporate equal protection guarantees in case
involving public school desegregation by the Federal Government in the
District of Columbia).
---------------------------------------------------------------------------
Also, by applying to pending lawsuits, the bill invites the
constitutional challenge that the bill constitutes an unlawful
taking in violation of the Fifth Amendment. This Committee
considers various liability proposals, and it is highly unusual
to impact pending lawsuits.
Finally, the bill may violate the Seventh Amendment, which
provides, ``[i]n suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury shall be
otherwise re-examined in any Court of the United States, than
according to the rules of the common law.'' \31\ Because the
bill eliminates the right of a jury to determine liability
issues, the legislation arguably deprives a plaintiff of the
right to jury.
---------------------------------------------------------------------------
\31\ U.S. Const. amend. VII.
---------------------------------------------------------------------------
CONCLUSION
Supporters of H.R. 1036, the gun lobby-backed immunity bill
that would shield irresponsible gun manufacturers, sellers,
dealers, distributors and importers from liability, claim that
the lawsuits prohibited by the bill are ``frivolous,''
``unprecedented,'' and have been universally rejected by the
courts. To the contrary, courts around the country have
recognized that precisely the types of cases that would be
barred by this bill are grounded in well-accepted legal
principles, including negligence, products liability, and
public nuisance. These courts have held that those who make and
sell guns--like all others in society--are obligated to use
reasonable care in selling and designing their product, and
that they may be liable for the foreseeable injurious
consequences of their failure to do so even if those
foreseeable consequences include unlawful conduct by third
parties. This bill, if enacted, would nullify these decisions,
rewriting and subverting the common law of those States, and
then, only with respect to a particular industry.
To be certain, a few States have held--at least with
respect to manufacturers--in a manner consistent with the
thrust of this bill. The diversity of these State court
decisions, however, is not a sign of a national problem in need
of a fix. It is, instead, the essence of federalism. It is not
the business of Congress cavalierly to undermine the authority
of the States to make and interpret their own laws or to
eviscerate the vested rights and interests of the citizens
therein. It is not a responsible Congress that does so through
the spectacle of a mock hearing and truncated markup in which
voices of dissent were suppressed.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.
Linda T. Sanchez.