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

Location: Washington, DC

Mr. CRAIG. Mr. President, I thank Senator Daschle, our minority leader, the Senator from South Dakota, for the cooperative way in which he has worked with us to, in his own words, improve, narrow, clean up this piece of legislation.

As I have already said on the floor today, a good number of times, the Daschle amendment-the effort that S. 1805 seeks to accomplish-is a very narrow way of protecting law-abiding, legitimate firearm manufacturers and dealers, but not to stand in the way of access to the courts as a result of somebody being harmed by somebody who has acted illegally as a licensed dealer or a firearms manufacturer.

I truly appreciate the Senator's efforts in behalf of this very small community of folks in the industry of manufacturing quality firearms. It is critical for our Nation, for law-abiding citizens, and for our national security. The Senator has seen that and understood it, and we will work now to hopefully get this bill before us soon this afternoon so amendments can be offered. I think the Senator has been ready to do that. That will move us down the road toward hopefully final debate and a vote on this legislation.


Mr. CRAIG. Mr. President, the leadership of both sides of the aisle, at the moment, is working to try to see if we can gain a unanimous consent request that would bring us to the bill hopefully within the hour and possibly deal with one or two amendments, and at least one amendment voted up or down; and then the laying down of another amendment at least this evening and starting debate on that.

So I thought for a few moments I would give a little background as to what has brought us to this point in time and S. 1805.

Senator Daschle was in the Chamber a few moments ago to visit with the Senate about his amendments and what we effectively incorporated in the bill. He has some fine-tuning he may offer as one of the first amendments this evening.

But when Senator Baucus and I introduced S. 695 back in the spring, more than half of the Senate-Republicans and Democrats-became original cosponsors. Today we have 55 cosponsors, including the leadership on both sides. A similar bill, H.R. 1036, was passed in the House of Representatives by a 2-to-1 margin over a year ago.

Now we have before us S. 1805, again, very similar to what we did in 1995, but with some adjustments made with the Senator from South Dakota. This is an extraordinary showing of support for a bill. I believe it is a testament to the gravity of the threat addressed by this legislation: The abuse of our courts through lawsuits filed to force law-abiding businesses to pay for criminal acts by individuals beyond their control.

The businesses I am talking about are collectively known as the U.S. firearms industry. The lawsuits I am talking about claim that even though these businesses complied with all of the laws and sell a legitimate product, they should be responsible for the misuse or the illegal use of the firearm they produce, misused by a criminal. These actions are pursued with the intent of driving this industry out of business-regardless of the thousands of jobs that would be lost in the process and the impact on citizens across the Nation who would never contemplate committing a crime with a gun.

Let's be very clear about this. These lawsuits are not brought by individuals seeking relief for injuries done to them by anyone in the industry. Instead, this is a politically inspired initiative trying to force social goals through an end run around the Congress and the State legislatures.

I believe that is worth repeating because it is the essence of the legislation. Instead, I believe these lawsuits are politically inspired initiatives trying to force social goals, or public policy, if you will, through an end run around the Congress and the State legislatures.

The theory on which these lawsuits are based would be laughable if it were not so dangerous: To pin the responsibility for a criminal act on an innocent party who was not there and had nothing to do with the act. They argue that merely by virtue of the fact that a gun was present, those who were part of the commercial distribution chain should be held responsible for the gun's misuse.

Earlier today, I talked about all kinds of chains in commerce-automobiles, and other vehicles, and other tools that are used tragically enough sometimes or misused in a way that they take a human life. What about a baseball bat? We hear, every so often, of a baseball bat used in the commission of a crime in which the baseball bat or the use of it struck a person and killed them. Should we make a person who manufactured that baseball bat liable or should we do that which we have always done in this country: made the individual responsible for his or her action?

This is not a legal theory. It is just the latest twist in the gun controller's notion that it is the gun, and not the criminal, that causes the crime; it is the car, and not the drunk driver, that kills the child it runs over.

The truth is, there are millions of firearms in this country today. Yet only a very tiny fraction of them are ever used in the commission of a crime. The truth is, again and again law-abiding firearms owners are using their guns, often without ever firing a shot, to defend their life or the lives of their family and their property. That is what the second amendment is all about. That is why this right is ingrained within the character and the culture of this country. The truth is, the intent of the user, not the gun, is what determines whether that gun will be used in a crime. A gun can be nothing but a piece of metal until it is used carefully and wisely by an individual in defense of themselves or in hunting by the expertise of the shooter, or it can become a very lethal weapon in the hands of a criminal in the taking of a life.

The trend of abusive litigation targeting the firearms industry not only defies common sense and concepts of fundamental fairness, but it would do nothing to curb criminal gun violence.

Let me repeat that. Does it stop gun violence in this country? No, it does not. The only way you do that is to sweep our country clean of the millions of firearms that are owned out there, and certainly take them out of the hands of criminals. But we know that is a near impossible task, too. Furthermore, the trend jeopardizes America's constitutionally protected access to firearms for defense and other lawful uses.

The bill that more than half of the Senate has already endorsed is a measured response that would put a stop to this abusive trend without endangering legitimate claims of relief. Let me emphasize that it does not insulate the firearms industry from lawsuits or deprive legitimate victims of their day in court, as some critics have already charged.

Nowhere in S. 1805 is there a padlock on the courthouse door. Quite the opposite. If this becomes law, this is the law that will be argued in court by some as to why a given lawsuit ought to be thrown out. And we trust the judge, wise and learned, will listen to all of those arguments and make a decision as to whether the lawsuit goes forward because it is legitimate within the law or it is simply just that, frivolous, it is not legitimate within the law, and it ought to be denied or cast aside.

Again, let me emphasize, it does not insulate the firearms industry from all lawsuits or deprive legitimate victims of their day in court, as some critics would, in fact, argue, and has been already argued several times on the floor today. In fact, it specifically provides that some actions can be brought against those in the business of manufacturing and selling firearms
when they violate the law or act wrongfully themselves.

Earlier today, I went through those five areas that we have clearly identified in the law where action can be taken. Senator Daschle has even refined that a little more to make sure all is clear in this given area. Actions based on breaches of contract, defects in firearms, negligent entrustment, criminal behavior-these actions would not be affected by this legislation. The laws there are already clear. People are being tried today in the courts based on those laws, and S. 1805 in no way would wipe them aside or cause a different action.

S. 1805 is solely directed at stopping frivolous politically driven legislation against law-abiding individuals for the misbehavior of criminals over whom they have no control. The courts of our Nation are supposed to be forums for resolving controversies between citizens and providing relief where warranted, not a mechanism for achieving political ends that are rejected by the people's representatives-the Congress or the State legislatures.

I believe that is the fundamental essence of 1805. It is direct. It is clearly to the point. It ought to be. I am pleased that 75 Members of the Senate earlier today said let's move this legislation to the floor. Let's begin the process. Let's vote up or down. Let's keep the bill clean and deal with this critical issue.

Once again, let me talk for a few moments about those exceptions we have carved out or defined within the law in the bill to make sure there is no question. The key to S. 1805 is the definition of qualified civil liability action which is addressed in the definitions section, section 4. I ask all of my colleagues to go there and read it. It is a simple bill, an easy bill to read, of 11 pages. But we made sure that we clearly spelled out a qualified civil liability action, which is defined as a lawsuit brought by any person against a manufacturer or a seller of a qualified product or a trade association for damages resulting from the criminal or unlawful misuse of a qualified product by a person or a third party.

Section 4, subsection 5, the definition then excludes five categories of lawsuits from coverage under 1805. In other words, we make very clear these following areas:

No. 1, an action brought against a transfer 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 transferee's conduct. In other words, illegal movement of the weapon itself.

An action brought against a seller-this is the second one-for negligent entrustment of negligence per se. Negligent entrustment is defined in section 4, subsection 5(a), 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 supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person and others. Misuse of the firearm, knowing that is going to happen. That is what Senator Daschle spoke to so clearly today in his clarifying amendment.

The third item, an action in which a manufacturer or seller of a qualified product knowingly and willfully violated a State and 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.

No. 4, the action for breach of contract or warranty in connection with the purchase of the product.

No. 5, an action for physical injury or property damage resulting directly from a defect in the design or manufacturing of the product-in other words, product liability-when used as intended or in a manner that is reasonable and foreseeable.

And then, as I mentioned, the Daschle language amends the text to permit suits against manufacturers or dealers engaging in straw purchase transactions. That is, when one individual purchases a firearm on behalf of a third party.

Why did we spell these out? We wanted the Senate and the citizens of our country to understand that this was not broad, nor was it sweeping. At the same time we wanted everyone to understand that what we were saying very clearly is something that has been said time and time again as it relates to the value of this legislation; that is, the reenforcement of centuries of legal precedent based on individual responsibility, not responsibility for actions of third parties. In other words, if you manufacture a product legally in our economy and it sells and someone misuses it and a life is taken with the misuse of that product, should we be able to come back through the court to the person who produced it when they abided by the law and in no way knew that the product would be used with the intent of harming someone?

That is the basis of individual responsibility in our country and, as I said, of centuries of legal precedent based on individual responsibility and not the responsibility of the actions of third parties. Many judges have already rejected these suits that have been brought. Antigun activists are trying to distort tort law by creating totally new and expansive theories of liability to win restrictions that have been rejected in the legislative process.

The PRESIDING OFFICER. The Senator's time has expired.

Mr. CRAIG. I ask unanimous consent that I be yielded Senator Nickles' hour under rule XXII.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. CRAIG. Mr. President, I thank Senator Nickles for generously yielding me his hour. In a postcloture environment, the sponsors of the legislation are allowed 2, individual Senators are allowed 1. I didn't realize I had already spoken that much today.

Having said what I have just said, I hope I have laid a clear and unambiguous basis to why we are here today and why this legislation is sponsored and supported by so many groups across the United States: the United States Chamber of Commerce; the United Mine Workers of America; National Association of Wholesaler Distributors-and the list goes on-the National Association of Manufacturers; the Boone and Crockett Club; the Buckmasters American Deer Foundation; the Campfire Clubs of America; Congressional Sportsmen's Foundation; Council of Wildlife Management and Education; Dallas Safari Club; Foundation for North American Wild Sheep; Hunting and Shooting Sports Heritage Foundation; International Association of Fish and Wildlife Agencies; International Hunter Education Association; Izaak Walton League of America; Mule Deer Foundation; National Rifle Association; National Shooting Sports Foundation; National Trappers Association; National Wild Turkey Federation; Pheasants Forever; Pope and Young Club; Quail Unlimited, Rocky Mountain Elk Foundation; Ruffed Grouse Society; Safari Club International; Texas Wildlife Association; the Wildlife Society; U.S. Sportsmen's Alliance; White Tail Unlimited; Wildlife Forever; Wildlife Management Institute; the Sports Fishing Association of America; America Tort Reform Association; National Association of Independent Insurers; National Alliance of American Insurers.

Here is something I found most interesting. We began to debate it on the floor today. Representatives from the International Association of Machinists and Aerospace Workers of East Alton, IL. Why? Because many of their members are employed in the Savage Arms Company in Westfield, MA, where they have already lost some 340 jobs over the last few years because that arms company has been so weakened by some of these lawsuits. They have had to pay out since 1999 over $425,000 as the cost of being at court with some of these lawsuits.

They are obviously concerned about their jobs. Somebody scoffed a bit this afternoon that I am standing here talking about jobs, that this is some kind of a jobs bill. It is just that. These industries are at risk today. They are not huge, deep-pocket industries. If we put every gun manufacturer in this country all together, they would make up, in total assets, less than a
Fortune 500 company. So they are extremely concerned.

The aerospace workers in Waltham, MA, in Chicopee, MA, along with Westfield, MA, the United Mine Workers, again the United Steelworkers from Gainseville, FL-all of them have spoken to it. The United Auto Workers have employees at the Colt plant in Newington, CT. Today they say, and I read from their letter:

We have 383 members from the Colt workforce. By comparison, about 5 years ago, we had over 600 Colt workers who were members of our local. Our members built the finest small arms in the world, including M-4 carbines, M-16 rifles, and M-203 grenade launchers.

Obviously, those are not civilian weapons, they are military weapons. Those are the kinds of tools that our men and women use in Iraq today in defense of themselves and in defense of our freedoms. Many of them provide the U.S. military and law enforcement. Our law enforcement people carry, in most instances, American firearms at their side.

Do we really want, by forcing these industries out of business, Chinese or Yugoslavian or Hungarian firearms to be packed by our military? Some would say: Senator Craig, you are just exaggerating. No, I am not. If ever one of these frivolous lawsuits would find root and grow, the kinds of millions of dollars in potential settlement for an argument that a criminal act caused by a third party was ultimately the result of an individual manufacturer who operated in a legal way could easily put them out of business because they simply do not have the kind of depth that, for example, the tobacco industry had years ago when these kinds of lawsuits began to be won against that industry.

Others have been tried in a variety of industries, but there is a reality, and that is why unions are now stepping forward as strong supporters of this legislation saying: Wait a moment, enough is enough. As long as our companies are legal and responsible and producing quality products, leave us alone, unless we act in a criminal fashion or in violation of Federal law in this country.

I cannot blame them for asking it. I believe they should ask it, and I believe we ought to grant that right. That is what S. 1805 does.

There are a good many issues we will be discussing over the course of this debate. My guess is there will be a variety of amendments offered. I find it interesting that this debate gets us to where we are today.

Let me cite something that is interesting, and I will bring some charts to the Chamber probably within the next day. Here is a question asked by the political studies at Southern Methodist University and the Zogby poll people in examining the differences in thinking between people who lived in the States who voted for George Bush in 2000, the red States, and those who voted for Al Gore, the blue States. Think red and blue here for a moment. We all saw those maps after the election, so we begin to think in reds and blues.

Here was the question asked by the Zogby poll people. I don't think you would call Zogby a conservative pollster. He is either center left or is certainly viewed by most as not being conservative. Let me stop there.

Here is a question asked by the Zogby pollster:

Do you agree or disagree that American firearm manufacturers who sell a legal product that is not defective should be allowed to be sued if a criminal uses their product in a crime?

The answer came back showing a phenomenal result. Opposition in the States that voted for President Bush, the red States, was 74 percent. In other words, 74 percent said that gun manufacturers that operate in legal ways ought to be protected. And in Al Gore States, 72 percent, a 2-percent difference. One could almost say that a vast majority of Americans agree with the essence and the principles of S. 1805. I found that very interesting.

Interestingly, across the board, those most strongly opposed to these lawsuits against the firearms industry are currently members of the military and their families.

There has been a lot of talk about our military these days because we have phenomenally brave men and women standing in harm's way in Iraq, Afghanistan, and other parts of the world. Our military said: We oppose frivolous lawsuits of our gun manufacturers by 83 percent. That was a Zogby poll taken earlier this year of 1,200 voters nationwide. So I find it interesting that opposition occurs to the very narrow approach we have taken when all of these large numbers begin to appear.

Zogby also asked this question:

Which of the following two statements regarding gun control comes closer to your opinion? Statement 1: There needs to be new and tougher gun law legislation to help in the fight against gun crime. Statement No. 2: There are enough laws on the books. What is needed is better enforcement of current laws regarding gun control.

By a better than 2-to-1 margin, 66 to 31, voters nationwide agreed on statement 2; that is, there are enough laws on the books. What is needed is better enforcement of current laws regarding gun control.

Overwhelmingly, Americans are now speaking out very clearly on gun issues. They are also overwhelmingly speaking out against frivolous lawsuits of the kind that we have seen now launched against this industry. Some 30-plus have been filed. Some are still pending. Some are on appeal. Some have already been thrown out by judges.

That is why we are here today. It is time that Congress stands up and speaks to clarify and disallow the gaming of the system, if you will, by some who want to line their pockets first and, oh, if there is a little bit left, maybe the victim or at least the person in the name the suit was brought would gain some benefit, but large compensation to those who have a license to argue before the courts of the land. That is the reality of what we are dealing with.

I close by saying that we do not block lawsuits that are responsible, that are within the law as we see it today and that we understand have a legitimacy because some manufacturer or some dealer acted beyond and outside the law in a criminal fashion that causes us to suggest that their misaction means they ought to pay the price for that misaction because someone else paid dearly by the use of that firearm.

Those are the fundamental issues before us in this debate, and I think it is important we have these votes. I hope within the next few minutes or within the hour we will have an agreement that allows us to move forward and possibly go to an amendment tonight, and then we will be back tomorrow for the balance of at least Thursday dealing with other critical votes on this issue.

I yield the floor, and I suggest the absence of a quorum.


Mr. CRAIG. Mr. President, we are hoping in a few moments that we might have a unanimous consent request to allow us to get to this bill.

I will respond only briefly to the Senator from New Jersey and his comments because he did suggest that I had implied something that is not fact on the floor of the Senate today. I want to make sure the record is clear because I don't want in any way to mislead any of my colleagues.

I said that the Bull's Eye gun store was closed. It, in fact, did close. The license of the dealer at the time the weapon was stolen was jerked. He could no longer conduct the business. He sold the business to a new licensed dealer. What the Senator from New Jersey failed to recognize is that licenses aren't given to locations; they are given to individuals, and those individuals must qualify. A condition of the new license also was all new personnel in the gunshop.

The Senator is accurate in suggesting that he might have called today and the gunshop is open under new management and new license and new people. The person who I said this morning had lost his license because BATF had jerked it and he had to close his business is, in fact, a legitimate and valid statement. That did happen. It is also my understanding that the criminal investigation is now underway, and that BATF is recommending to Justice that they file felony charges against this particular dealer. I do not know anything more about the facts. But I do know one thing.

Mr. LAUTENBERG. Will the Senator yield for a question?

Mr. CRAIG. Let me complete this thought, and I would be happy to yield.

I do know one thing. Lee Malvo himself said: I stole the weapon. That is very important. But the Senator suggested-and his words were: Well, maybe an under-the-table deal. I do not know that stealing is under the table, and the man who pulled the trigger admitted he had stolen the weapon. You can imply anything you want. I can't. I have to use factual statements given by, in this case, a man who has been apprehended and we now believe by all evidence committed that tremendously tragic crime and was one of the District of Columbia snipers. That is the reality. I believe those are the facts. I believe them to be honest and straightforward facts.

I would be happy to yield to the Senator.

Mr. LAUTENBERG. I thank the Senator from Idaho.

One thing I know is that we often disagree, but I would never accuse him of these statements. He is an honorable man. We have our differences on things that we ought to be putting into law. But I would like, if I may, to correct my friend's impression because not only was there a phone which was answered but the now owner of the license is a good friend of the former owner.

If one looks at the pictures that we displayed, the weapon used was a pretty sizable piece of equipment. As I remember from what I saw on the film shown on television, there was evidence that this Lee Malvo was carrying a weapon out of that store. The camera saw it. Certainly it could have been negligence. It could have been reckless or maybe the gun was paid for by a friend, and with the wink of the eye, out it went. But to give this criminal credit for telling the truth is something that I-

Mr. CRAIG. I did yield for the sake of a question and not a comment. I would like to reclaim the floor.

Mr. LAUTENBERG. The Senator is absolutely right. My question was, Did the Senator know that the new owner of the license was the friend of the former owner?

Mr. CRAIG. I didn't inquire about friendships or relationships. I inquired about the legality of the license that operates the store, and whether the store is still in business, and whether the owner who is alleged to have mishandled records owns it today; does he operate it. The answer is no.

Let me also add that I appreciate the Senator's logic about the stealing of a weapon. Automobiles are stolen from automobile lots and the thieves are caught on camera. The last I checked, an automobile is substantially larger than a rifle. Is it possible that Lee Malvo picked up a gun and walked out of the store? He says he did. He says he did. He stole the weapon.

I am not going to in any way attempt to defend the man who once owned the Bull's Eye gunshop. He may be indefensible. He may have violated the law. If he did-and he is being investigated for it-S. 1805 does not immune him from any of those actions. That is what is important to understand as we debate the bill. His acts were criminal. If he is in violation of the Federal firearm license, if he has mishandled his records, and if he had, in fact, seen a robbery and failed to report it, then this man is in trouble because that is the law. We would not protect him nor does this bill protect him from that law.

I yield the floor.


Mr. CRAIG. If the Senator will yield, I think that is a valid analysis and I certainly did not intend to misportray that.

Again, let's go back to the law. Are you suing the store if there are lawsuits, or are you suing the individual who had the Federal firearms license? Is it the physical structure that is liable or is it the individual who owned the structure who is liable? We know what the law is. It is the individual and not the store.

I cannot, nor do I, know the details of the relationship. What I do know is that he cannot sell firearms today. His license has been pulled. That is what the law requires, and a criminal investigation proceeds at this moment. I believe that is the essence of the argument.

Mr. REED. That is an accurate description of the situation but, again, the imprecision was whether the store is operating, not who is operating it. The individual is not able to operate because he lost his license.

Mr. CRAIG. If the Senator will further yield, I did use the phrase "store closed." I meant the ownership, as it was; he closed. It reopened. Whether it was 24 hours or 48 hours, he could no longer operate it when his license was revoked. We understood he sold it to a new operator who is licensed.

Mr. REED. I think it is important to clarify that because it has been a matter of factual dispute.


Mr. CRAIG. Hope springs eternal that we might, sometime in the late of the afternoon-I guess it is now described as early evening-see a unanimous consent agreement that would take us into tomorrow and the remainder of the week as to how we are able to move to and deal with S. 1805 and its amendments.

I am going to respond only briefly to what my colleague has just said because I am not an attorney and I am not going to attempt to outlawyer the lawyers. Mr. Cutler is a fine lawyer. There are many other fine lawyers who disagree with Mr. Cutler. It is not our job to outlawyer the lawyers, but it is our job to write law as clearly as we can and then allow judges, listening to the arguments of lawyers as they relate to how a given situation might fit in a suit, to make the determination as to the applicability of the law.

Now, having said that, I would like to refer to another lawyer. Is he as recognized as is Mr. Cutler? No, probably not. But this does come from the Congressional Research Service, and it is one of those services that we utilize. The Senator has, I think, the same work product I have. We are talking about the Daschle-Craig-Baucus amendment that Senator Daschle came to the floor to speak to a few moments ago.

The Daschle-Craig-Baucus Amendment would strike "knowingly and willfully" in the preceding sentence-

That we are talking about-

potentially increasing the likelihood that [certain exceptions] to the general immunity afforded under the [law] would be applicable in any given case.

They looked at it in relationship to the Bull's Eye case to which the Senator was referring.

Now, these are not my words. I am not this good. I am not an attorney. But I do listen to them, and I seek out their advice when it comes to writing law and making sure that it is clear and unambiguous.

They cite two examples and they say:

Applying these changes to the scenario at issue-

We are talking about Bull's Eye-

it would appear that the Amendment could have the effect of making it more likely that this exception to immunity would be applicable, if certain facts are established.

"If certain facts are established." Those facts have not yet been established. They were not established for Attorney Cutler. He is simply looking at the broad presence of the law, or application of it, as are we.

If certain facts are established in an investigation and charges are brought against an owner, then we believe our amendment clarifies and does not provide the immunity, if those facts are established.

Now, the changes we are talking about are twofold:

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record which he is required to keep pursuant to State or Federal law-

If weapons are stolen and they fail to note it, fail to report it to the police, that fits that area-

or aided, abetted or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness or the sale or other disposition of a qualified product.

"Other disposition"-theft. At least this is my interpretation now. I am not a lawyer. Secondly:

[A]ny case in which the manufacturer or seller aided, abetted or conspired with any other person to sell or otherwise dispose of a qualified product, knowing or having reasonable cause to believe that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under section 922(g) or (n) of title 18, United States Code. . . .

That is what the Congressional Research Service says. Then it draws that conclusion I gave earlier:

Applying these changes to the scenario at issue-

That is what the Daschle-Craig-Baucus amendment does. "The scenario at issue," the arguments put forth, the concern about somehow, if the facts are established, this firearms dealer being immune by S. 1805-

it would appear that the Amendment could have the effect-

The amendment is in large part incorporated in S. 1805 now, and Senator Daschle is going to offer another amendment that we know will be accepted and will clarify it even more-

of making it more likely that this exception to immunity would be applicable, [again] if certain facts are established.

That is the argument at hand. We can trade arguments of attorneys. We will place all these kinds of things in the RECORD so our colleagues can understand them and hopefully sort them out, but it is my opinion that we are not exempting this formerly licensed gun dealer who has now had his license revoked. Because if an investigation goes forward, and charges are filed against him, I believe we have clearly not granted him immunity under S. 1805 if it, in fact, becomes law. I do believe that is the strength of our argument, and one that certainly is believed to be what we represent here. It is certainly from the Congressional Research Service, which has very active attorneys who deal constantly with the law as we shape it and form it and look at arguments that are placed out there in the public arena in relation to the legislation that we bring before the Senate.

I yield the floor.


Mr. CRAIG. Mr. President, we hope we are narrowing down to a time when we will have a unanimous consent request which then-and I can't judge this yet-might conclude our efforts today. We will be back early tomorrow morning to resume. I thank my colleague for his arguments. We are not going to try this case here on the floor of the Senate because we don't have a judge. I am not a lawyer. He is; I am not. But I would also ask him to look at another provision we have in the bill as he argues the case. That is that a lawsuit could also be allowed under the bill's exception allowing actions for negligence per se or for negligent entrustment, depending on, of course, the condition of the dealer and the dealer's knowledge, if any, of the suspects.

Having said that, let's remember to address these issues, the victim would need to get his day in court. The case will be filed. The defendant would file a motion to dismiss based on provisions of 1805. And if the judge-remember there is going to be the impartial judge weighing all the law and the findings-decides this case did not fall under those exceptions, then the litigation would proceed. That is the essence. We are not going to argue the case effectively here because, frankly, we don't know all of the facts. We are not a part of ATF's investigation, and all of those facts are not yet public. They will not be public until charges are filed, a suit is brought, and that day in court I just spoke of is at hand.

Obviously, the Senator and I can disagree on what the meanings are, but I do believe the arguments we put forth are
extremely valid. Certainly, the minority leader, myself, and others, in a very bipartisan fashion, have worked tremendously hard to craft this bill in a way that is as narrow as I expressed it to be earlier in the day to deal only in the protection of law-abiding dealers, law-abiding manufacturers who make a legitimate product, and to deny the kind of lawsuits we have seen that are more intent on bankrupting the manufacturer than they are in bringing resolution to or, if you will, dealing with the victims and rewarding them in any fashion.

I yield the floor.

The PRESIDING OFFICER (Mr. COLEMAN). The Senator from Rhode Island.

Mr. REED. Mr. President, my colleague from Idaho has invited me to look at the theory of negligent entrustment and negligence per se. I will try to do that.

Again, this is not an attempt to dispose of a case before a court. But we all have an obligation to understand what we are voting on, what these provisions will do based on the plain language of the provisions and based upon the facts as we know them in certain cases. That is why I think this is a positive exercise. It is insufficient to say that we pass laws, but we do not have to know what they mean because some judge will figure out what they mean. No, no, I think we have to know what they mean because that should drive our decision about whether this legislation will pass or fail.

Let me turn for a moment to these two theories of negligent entrustment/negligence per se.

Negligent entrustment is generally understood as "the supplying of a qualified product by a seller for use by another person when the seller knows, or should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others."

Again, the seller has to know, or is likely to know, that the person they transfer the weapon to or supplied it to is likely to harm himself or harm someone else.

The problem we have with respect to the sniper case is that the evidence the snipers' weapon was shoplifted from Bull's Eye would appear to preclude the plaintiffs from making the requisite showing under the statute that the gunshop knew or should have known that the recipient of the gun, Malvo, was likely to use the product in a criminal or otherwise unreasonably dangerous manner.

Malvo indicated he shoplifted the weapon. The owner said he must have taken it. He didn't know it was missing until ATF showed up.

The theory of negligent entrustment is fancy-sounding terminology, but it is another trapdoor from which the exception falls out.

Negligence per se, under most-I am a lawyer, but I am hesitant to say I am a lawyer who is familiar in every detail with Federal practice, but my assumption is since we are talking about Federal and State laws, this negligence per se is a State common law concept that would apply to the laws of Washington State because that is where the Bull's Eye shooting gallery is located.

In any event, with respect to negligence per se, it would not preserve the sniper case because even where that doctrine is recognized, it requires a violation of statute that is a proximate cause of the plaintiff's injury. Once again, you have to show not only the violation but that violation of that particular law was a proximate cause of injury. As discussed above-again I am borrowing from one of these legal analyses-that would be very difficult to show. In fact, also I think there is another problem in Washington State about the doctrine of negligence per se.

The negligence per se doctrine has been abrogated by statute in Washington State. It doesn't apply.

Once again, I think we have an exception that does not provide relief for these individuals.

I conclude by joining my colleague in hoping we have some resolution soon on the procedural process for this evening and tomorrow. I yield the floor.

Mr. CRAIG. Mr. President, I suggest the absence of a quorum.


Mr. CRAIG. Let me thank both the leadership on our side of the aisle and certainly the minority leader and the minority whip for the work they have done in trying to bring this together.

Is this something that I wholeheartedly support? Well, let me put it this way: It is something I support because it gets us to a final vote, which is very important, in a timely way.

But something is absent from this unanimous consent agreement that is very important: to allow the underlying bill, however it is changed, to become law. That is why we are here on the floor. Not that this is how we get to conference, which oftentimes is agreed to. When we craft a bill and arrive at a time of final passage, we almost always include in it the procedure by which we will get to conference.

I hope that our minority leader, in good faith, would work to help us get to that point so we can work out the differences between the House and the Senate. There will be differences; that is quite obvious now. Some of these amendments could pass. It is important we work that out.

We saw the underlying bill gain a substantial bipartisan majority support in the Senate, and therefore it is incumbent upon all of us, I trust, to get this bill to a conference between the House and the Senate, work out our differences so we can vote on a conference report and allow this underlying bill now changed to get to our President's desk.

Having said that, let me thank everyone for the work they have done. This is a very busy schedule. But let me also echo what the minority leader said. It does not stop other Members who feel they must offer amendments from bringing those to the floor. I said early on today we wanted an open process, amendments voted on, but at the end of the day we wanted to vote on final passage. We helped facilitate that by this agreement, and I appreciate the work done by our leaders.

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