Protection of Lawful Commerce in Arms Act
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Mr. DeWINE. Mr. President, when this bill was before the Senate in the last Congress, I came to the Senate to oppose it. I opposed it because it denied certain gun crime victims, certain individuals who were victims of crimes committed with guns, their day in court. It singled out a particular group of weapon victims that it treated differently than we treat any other victims in the whole country. It set them apart.
Unfortunately, the bill before the Senate is no better than the one we had last year. In fact, it is worse. Not only does it grant immunity to the gun industry, the bill also prevents Federal, State, and local government agencies from shutting down gun dealers who violate the law. Local and State governments are responsible for ensuring that restaurants are clean, that doctors are properly licensed, stores do not sell alcohol and cigarettes to our children. Why can't they also ensure that gun dealers and manufacturers operate responsibly? Why do we want to take that right away from them? Yet the current language of the bill before the Senate would do that.
I have great respect for the many firearms dealers and manufacturers around this country who are legitimate, honest and hard working. The vast majority of dealers have no tolerance for buyers who circumvent gun laws. These dealers are also responsible, ensuring that they have adequate inventory control systems in place so that guns do not get lost or become missing.
This bill would not help them. The responsible dealers don't need this bill. Cases filed against responsible dealers and manufacturers who have done nothing wrong can already be tossed out if they have no merit, as any frivolous lawsuit will be tossed out in a court of law if they are filed against any manufacturer of any product or against any wholesaler or retailer of any product.
Who, then, will benefit by the passage of this bill? The people who will benefit are the irresponsible dealers and the irresponsible manufacturers.
Let me describe some cases. Everyone remembers all too well the tragedies of the DC sniper cases. Some of the victims of the DC snipers sued Bull's Eye Shooter Supply, the gun dealer that negligently allowed a Bushmaster rifle to reach the hands of John Allen Mohammed and Lee Boyd Malvo. That suit was successful. In the settlement, the negligent dealer--we could have assumed he would have been found negligent in a court of law--agreed to pay the victim and their families $2.5 million.
If this bill had been in effect a few years ago, these victims would have had no recourse in court.
Or perhaps we remember Danny Guzman, from Worcester, MA. On December 24, 1999, Danny Guzman was shot and killed by a gun that was taken from a factory run by Kahr Arms. Unfortunately, Kahr Arms hired Mark Cronin, an individual with a history of crack cocaine addiction and theft. Cronin was given unfettered access to the untraceable, unstamped guns in the factory. He bragged, in fact, that it was so easy to remove guns that he ``does it all the time and he could just walk out with them.''
Cronin removed one of these guns from the factory. That gun ended up on the streets, and tragically it was used to kill Danny Guzman. Those are the essential facts.
Danny Guzman's estate, on behalf of his widow and two young daughters, sued Kahr Arms, alleging that it operated its plant in a grossly negligent manner, and in the spring of 2003, a State judge allowed that case to proceed. If this bill passes, however, the widow and children of Danny Guzman would be out of court.
As we can see, this bill cuts to the core of civil liability law and guts it. As my colleagues know, now, under current law throughout this country, the victim needs to prove the defendant acted in an unreasonable manner--basic negligence law, the law those who are lawyers learn about in the first and second year of law school. It is the law of negligence that prevails in courts of law in every type of civil case. It is not unusual. It is what it is.
Under negligence law, if the defendant fails to meet his or her duty to act in a responsible fashion, they are liable for negligence as long as that failure leads to harm to the victim. That is what is required. It is negligence. It is as simple as that. That is the standard. It is a standard we have developed over 200 years in this country, a standard we inherited from the British system. So we have hundreds and hundreds of years of experience in how to apply the rules of law, the common law negligence.
This bill says that those rules will no longer apply for one set of victims. These rules that we have taken hundreds of years to develop will no longer apply to one set of victims and to one set of defendants.
When we study law, one of the first things we learn is the difference between civil and criminal law. Someone who did not commit a crime can still be held liable in civil law to someone else and have to pay monetary damages. That is a basic concept.
This bill, however, changes that fundamental idea of civil law because under this bill a victim cannot sue a gun dealer for damages resulting from illegal actions of a third party without also showing that a dealer is guilty of a violation of the law, even--even--when the dealer has been negligent. Again, that is a fundamental change in our law with one group of civil defendants.
If this bill were to become law, a plaintiff would not only have to demonstrate that a gun dealer acted negligently, but also that the gun dealer broke the law--broke the criminal law. In other words, the plaintiff would--with one lone exception that has already been talked about on the floor a few moments ago--have to prove the gun dealer violated a statute or is guilty of a crime.
We do not require this in any other place in our law. Why do we want to do it in this case? If those who come to the floor in favor of this bill think it is such a great idea to do it in this case, if they think it is such a great idea to require that they have to violate a criminal law before you can sue them, then why not just pass that law for everybody? Why not make it the law of the land that in any civil suit in this country you have to have violated a criminal law? Why not change our civil law, turn it upside down, in all 50 States of the Union, if it is such a great idea?
I do not see anybody coming to the floor who is in favor of this bill saying it is such a great idea to do that. I do not see anybody proposing to do that. Yet they want to do it for one set of victims. They want to single out one set of victims. If you are a victim of guns--and it could be that somebody, a manufacturer, a gun dealer, has been negligent--we are going to require, for you to get inside the courthouse door, for you to even enter the courthouse door, before you can get what every American has the right to have--and that is a trial by jury, a trial, the opportunity to have your case heard by a judge and a jury--we are going to require you to prove there has been a crime committed.
We do not require that for any other group of people. So if they think it is such a great idea, let them come to the floor and propose that, to make it a universal law for every civil suit in the country.
I would like to talk for a moment about the language in this bill that might well prevent the Government from enforcing our gun laws against irresponsible gun dealers. This provision goes well beyond barring civil suits by private citizens who have been wronged. This provision is a new provision. It was not in last year's bill. This provision potentially curtails the ability of the Bureau of Alcohol, Tobacco, and Firearms, the ATF, from enforcing the gun laws that are currently on the books.
Two former ATF Directors recognize the potential harm that comes from this provision. According to Stephen Higgins, ATF Director from 1982 to 1995, and Rex Davis, ATF Director from 1970 to 1978, this broad, new language contained in this legislation in front of us today would likely prohibit the ATF from initiating proceedings to revoke a gun dealer's license, even when that dealer supplies guns to criminals.
Let me repeat that. According to both of these former ATF Directors, this broad, new language would likely prohibit the ATF from initiating proceedings to revoke a gun dealer's license, even when that dealer supplies guns to criminals.
So not only are we shielding these bad apples, bad actors, people who ought to not be doing business, not only are we shielding them from civil liability, now we are coming along and saying the ATF cannot enforce the law against them. What in the world are we thinking?
I think that everyone in this body can agree it is important for us to enforce gun laws that we have on the books. Why in the world is there attached a provision to this bill that would make it harder for ATF to enforce our laws and shut down wayward and dangerous gun dealers? Why in the world would we want to do this? I don't know.
Why would we want to strip away the opportunity of a gun victim to get into court? Why do we want to do either one of those things? I guess the answer is pretty simple. This bill ties the ATF's hands, ties the hands of private citizens, ties the hands of State and local agencies. It shields a certain group of defendants--gun manufacturers and dealers--from liability. This bill grants immunity. It overturns well over 200 years of civil law, 200 years of tort law, 200 years of common law.
If it passes, this bill would fundamentally change our justice system. It would do this by denying one group of citizens access to the court system in order to protect another group.
Why in the world are we about to do this? The only reason I can think of is because there are the votes here to do it. There is the power to do it. It can be done. One group in the country can get it done.
Now, Mr. President, I can count. I know how this vote is going to turn out. But that still does not make it right. Just because there are votes to pass this legislation does not mean it is the right bill for our country, for the victims, or for the American people.
I said this last year, and I will say it again. I will make a prediction about this bill. I will make a prediction about the effect it will have on this group of victims. Yes, the passage of this bill will get rid of some frivolous lawsuits. There is no doubt about that. We could get rid of a lot of frivolous lawsuits in this country by prohibiting access to the courthouse. There will be lawsuits that will never be filed because of this bill. That is true. There is no doubt about that.
But, Mr. President and Members of the Senate, mark my words: If this bill passes, in the future there will be a case, or cases, that will be so egregious, so bad, that it will sicken your stomach, and Members of this Senate will read about it, and Members of this Senate will look up from their paper, or will look up from the evening news, and will say: I didn't intend to do that. I didn't intend for that victim not to be able to go into court. I didn't intend for that child, that man, that woman not to be able to sue that defendant. Oh, I never intended that.
There will be that case, and that day will come. And whether it is a terrorist who is the defendant or whether it is some horrible criminal or whether it is some horribly negligent gun dealer--whoever it is--there will be some case, and we will see it, and we will live to regret this day. You cannot arbitrarily close the door to the courthouse and say, ``You cannot come in, victim, if you are of a certain class,'' and not have injustice done. You cannot do it. That day will occur, and we will regret what we are about to do.
There is an additional aspect of this bill that has not been talked a lot about; and that is the fact that it is retroactive. It would actually kick existing cases out of court. How dare we do that. How dare we have the audacity to do that. How dare we in this Congress come to the Senate floor and wipe out every lawsuit that has been filed in this country that would come within the parameters of this bill. How arrogant are we to do that? Did we really get elected to the Senate to tell crime victims that their case is frivolous, without ever even knowing the facts of that particular case?
We will have in front of us, in a few weeks, a Supreme Court nominee. There will be a lot of talk, as there already has been, about the separation of powers. There will be a lot of talk about judicial restraint, as well there should be. I probably will be talking about it as well.
What about legislative restraint? We do not talk much about that. We get mad here on Capitol Hill when we pass a bill and the Supreme Court says we did not have the power to pass that bill. I think we should remember what our role is. I do not think anyone elected us to the Senate to bar their ability to go into court--not to completely bar the door. I think it is one thing to set standards and parameters and maybe limits. You can talk about that. But to totally say, ``You can't go into court,'' I think we ought to think long and hard before we do this.
If passed, this bill would kick people out of court retroactively. It would not just bar people from coming to the courthouse. Apparently, that is not enough. No. What this bill does is kick people out who are already in court. It kicks people out who have already survived motions to dismiss and motions for summary judgment. It likely even tosses out victims who have won at trial and are defending their cases on appeal. To me, that is just plain wrong.
The courts are supposed to decide these cases. Juries are supposed to decide them. People are supposed to have their day in court. That is how our system is supposed to work. I do not think it is my job or the job of other Members of the Senate to judge these cases. It is not our job to determine whether these cases should or should not proceed. It is not my job to determine whether someone is negligent or is not negligent.
I also think it is not my job to tell a victim that he or she does not have the right to go to court and present a case to a judge or a jury. People in this country are supposed to have their day in court. That is fundamentally the American way. This bill creates two classes of victims in this country. If you are injured by any industry in America, you can file a lawsuit in State court in an attempt to redress your injury. After the passage of this bill, however, if you are injured by the gun industry, you are likely out of luck.
Other industries face legal challenges. Other industries, other defendants, have had lawsuits filed against them they do not like. Other defendants, every single day in this country, face suits that in their eyes, many times, are frivolous, that they cannot stand, that they do not think are fair. But they are not here petitioning us, telling us we should pass a law that blocks the ability of someone to sue them. Other industries are involved in cases where many people die. We understand that. We do not grant to them this kind of immunity from civil liability.
I support the second amendment. I support individuals' rights to own guns. I support gun manufacturers. I support legitimate gun dealers. And I support responsible tort reform. I certainly understand there are some abuses in the system, and that sometimes Congress needs to act to prevent these abuses. For example, just recently, I voted in favor of class action reform, and we passed that legislation to modify certain class action procedures.
But what we are about to do in this Congress, in this Senate, is wrong. This bill keeps victims out of court altogether. This bill is unfair to victims. But more important than that, it is a horrible precedent. If we do this, this time, what is to stop a future Congress--where there are the votes, maybe configured differently--from saying: ``Oh, there is another group of victims, and we need to protect them,
another group of victims that we are not going to protect, another group of defendants that we are going to protect, another group of victims to whom we are going to say, you can't sue them, you can't get your day in court''?
If we deny this group of victims in front of us today their rights, what is to stop a future Congress from denying another group of victims their rights?
We need to think about this long and hard before we cast this vote.
I yield the floor.