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107th Congress Rept. 107-727
HOUSE OF REPRESENTATIVES
2d Session Part 2
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PROTECTION OF LAWFUL COMMERCE IN ARMS ACT
_______
October 8, 2002.--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
[To accompany H.R. 2037]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2037) to amend the Act establishing the Department
of Commerce to protect manufacturers and sellers in the
firearms and ammunition industry from restrictions on
interstate or foreign commerce, having considered the same,
reports favorably thereon with amendments and recommends that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 4
Hearings......................................................... 27
Committee Consideration.......................................... 27
Vote of the Committee............................................ 27
Committee Oversight Findings..................................... 29
Performance Goals and Objectives................................. 29
New Budget Authority and Tax Expenditures........................ 29
Congressional Budget Office Cost Estimate........................ 29
Constitutional Authority Statement............................... 31
Section-by-Section Analysis and Discussion....................... 31
Markup Transcript................................................ 32
The amendments are 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, under 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 nondefective firearms,
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 is 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,
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.
(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 our
Nation's laws, threatens the diminution of a basic
constitutional right, 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
municipalities and cities are based on theories without
foundation in hundreds of years of the common law and American
jurisprudence. The possible sustaining of these actions by a
maverick judicial officer would expand civil liability in a
manner never contemplated by the Framers of the Constitution.
The Congress further finds that 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.
(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 five of that Amendment.
(4) To prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign commerce.
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.
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 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 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.
(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) 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.
Amend the title so as to read:
A bill 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.
Purpose and Summary
H.R. 2037, 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. ``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 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. 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 statutory violation, and it is
a question for the court, not the jury. See Black's Law Dictionary (7th
ed. 1999).
Manufacturers and sellers of qualified products are defined
as those who federally licensed to manufacture, import, or deal
in firearms and ammunition, as defined by Federal law.
Background and Need for the Legislation
Congress, by passing H.R. 2037, 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); see also Restatement (Second) of Torts Sec. 282 (1965)
(``Negligence is conduct which falls below the standard established by
law for the protection of others against unreasonable risk of harm;
(i)t does not include conduct recklessly disregardful of an interest of
others.'').
\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). See
also Restatement (Second) of Torts Sec. 520 (1977). (``In determining
whether an activity is abnormally dangerous, the following factors are
to be considered: (a) existence of a high degree of risk of some harm
to the person, land or chattels of others; (b) likelihood that the harm
that results from it will be great; (c) inability to eliminate the risk
by the exercise of reasonable care; (d) extent to which the activity is
not a matter of common usage; (e) inappropriateness of the activity to
the place where it is carried on; and (f) extent to which its value to
the community is outweighed by its dangerous attributes.''). This
section was changed by substituting abnormally dangerous activity for
ultra-hazardous activity. Id.
\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, for the most part, 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 generally 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\ Hamilton v. Accu-Tek is the only case
where a jury has found the manufacturers liable for
negligence,\38\ and 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.\39\ As these cases demonstrate, the absence of a
special relationship between criminal third parties and
manufacturers means that negligence claims should be dismissed.
Gun manufacturers have no duty to control the conduct of third
parties.\40\ 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.'' \41\ The judge asserted that Bridgeport ``cannot
seriously maintain that reasonable certainty in calculating
their damage claims is within the realm of possibility.'' \42\
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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. Accu-Tek, 62 F. Supp. 2d 802, 811 (E.D.N.Y.
1999).
\39\ 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).
\40\ 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).
\41\ 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).
\42\ 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
moral foundation which presupposes that a product may not be
defined as defective unless there is something ``wrong'' with
it. No less a scholar than 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 . . .'' \43\ Thus, Holmes
rejected the notion of gun sellers' liability because of the
intervening criminal act of another; the ``wrong'' that he saw
was that of the assailant, not the gun dealer.\44\ As the
Supreme Court stated, quoting James Madison, in New York Times
Co. v. Sullivan, ``As Madison said, `Some degree of abuse is
inseparable from the proper use of every thing . . .' '' \45\
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\43\ Oliver Wendell Holmes, ``Privilege, Malice, and Intent,'' 1894
Harv.L. Rev. 1, 10 (1894).
\44\ 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.
\45\ 376 U.S. 254, 271 (1964). 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
(citing Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S.
405, 426 (1908); Crown Die & Tool Co. v. Nye Tool & Machine Works, 261
U.S. 24, 34 (1923)). 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 Section 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.,\46\ 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.\47\ 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.'' \48\ Similarly,
courts have dismissed city and county complaints seeking
recovery at common law for injuries to remote third
parties.\49\
---------------------------------------------------------------------------
\46\ 332 U.S. 301 (1947).
\47\ See id. at 304.
\48\ Id. at 315.
\49\ 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).
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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. 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.\51\ However, gun manufacturers do not
have the financial capacity of the cigarette companies whose
sales average $45 billion annually.\52\ In contrast, the gun
industry grosses only $1.5 billion a year.\53\ It has been
estimated that tobacco companies spend approximately $600
million a year defending against suits brought by the
states.\54\ Gun companies are incapable of financing a similar
defense.\55\ 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 in
Federal bankruptcy court.\56\ 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.\57\ 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.\58\
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\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\ 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).
\52\ See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits,
The New York Times (March 21, 1999) at A32.
\53\ See William C. Symonds et al., ``Under Fire,'' Business Week
(August 16, 1999) at 63.
\54\ See Fox Butterfield, ``Lawsuits Lead Gun Maker to File for
Bankruptcy,'' The New York Times (June 24, 1999) at A14.
\55\ Id.
\56\ Id.
\57\ 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.
\58\ 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.\59\ 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.\60\ General
aviation aircraft production plummeted between 1978 and 1991
from 18,000 planes to less than 900.\61\ The manufacture of
single engine piston aircraft fell to only 555 by 1993.\62\
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.\63\
---------------------------------------------------------------------------
\59\ 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).
\60\ 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.
\61\ See id.
\62\ See id.
\63\ 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 extremely 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; \64\ 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.\65\
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\64\ 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).
\65\ 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.\66\ The
earliest American example of this concept occurred in Anthony
v. Slaid.\67\ In that case, the plaintiff Anthony contracted to
assist the poor by funding medical care and other
assistance.\68\ 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.\69\ 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.'' \70\ Anthony sued Mrs. Slaid's husband as
the then-legally-liable party, seeking reimbursement of his
increased costs.\71\ 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.'' \72\ 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.'' \73\
The court then sustained dismissal of Anthony's complaint.\74\
Soon thereafter, the United States Supreme Court applied the
remoteness doctrine to bar a plaintiff's claims in Insurance
Co. v. Brame.\75\ 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.\76\ 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.\77\ Finding that
the relevant cases were ``substantially uniform against the
right of recovery,'' \78\ 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.'' \79\
---------------------------------------------------------------------------
\66\ See Holmes v. Securities Investor Protection Corporation, 503
U.S. 258, 269 (1992).
\67\ 52 Mass. 290 (1 Met. 1846).
\68\ See id. at 290-91.
\69\ See id. at 291.
\70\ Id.
\71\ See id.
\72\ Id.
\73\ Id.
\74\ See id.
\75\ 95 U.S. 754, 759 (1877).
\76\ Id. at 754.
\77\ Id. at 756.
\78\ Id. at 758.
\79\ 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.\80\ 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.\81\ SIPC filed
Racketeer Influenced and Corrupt Organizations (``RICO'')
claims to recoup from the inside trader those amounts it had
paid to the brokers' clients.\82\ 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.\83\ 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.\84\ 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.'' \85\ 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.'' \86\
---------------------------------------------------------------------------
\80\ 503 U.S. 258 (1992).
\81\ See id. at 261-62.
\82\ See id. at 263.
\83\ See id. at 271.
\84\ See id. at 276.
\85\ See id. at 268.
\86\ 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.\87\ 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 potentially 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.
---------------------------------------------------------------------------
\87\ Id. at 268.
---------------------------------------------------------------------------
The remoteness doctrine articulated in Anthony, Brame, and
Holmes has been embraced by the Second,\88\ Third,\89\
Fifth,\90\ Sixth,\91\ Seventh,\92\ and Ninth\93\ Circuit Courts
of Appeals, as well as by multiple district courts,\94\ 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,
six Federal courts of appeals\95\ and multiple Federal district
courts\96\ 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.\97\ However,
subsequent decisions have effectively rejected or limited these
minority opinions and have reasserted the importance of the
remoteness doctrine in those jurisdictions.\98\
---------------------------------------------------------------------------
\88\ 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).
\89\ 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).
\90\ See Texas Carpenters Health Benefit Fund v. Philip Morris,
Inc., 199 F.3d 788, 789 (5th Cir. 2000).
\91\ See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir.
1999).
\92\ 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).
\93\ 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).
\94\ 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'').
\95\ 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).
\96\ 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).
\97\ 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).
\98\ 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). The Blue Cross & Blue Shield case 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.,\99\ in which an insurer brought a negligence
action against a tortfeasor responsible for the death of its
insured.\100\ 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.'' \101\
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.'' \102\ Likewise, the
common law of other states bars such remote claims.\103\
---------------------------------------------------------------------------
\99\ 25 Conn. 265 (1856).
\100\ See id. at 271.
\101\ 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).
\102\ Unisys Corp. v. Department of Labor, 600 A.2d 1019, 1022, 220
Conn. 689 (1991).
\103\ 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.\104\ Some immunity statutes are broader in scope and
affect the legal rights of private individuals.\105\ But none
do or can address the national problem addressed by H.R. 2037.
---------------------------------------------------------------------------
\104\ 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).
\105\ 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.\106\ 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.\107\ 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.\108\ The
city sought ``injunctive relief which would require [the]
defendants to change the methods by which they design,
distribute[,] and advertise their products nationally.'' \109\
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.''
\110\ 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.\111\
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.\112\ 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.\113\ 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.\114\
---------------------------------------------------------------------------
\106\ 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.
\107\ Penelas v. Arms Technology Inc. et al., No. 3D00-113,
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
\108\ See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL
809838 (Ohio Com. Pl. Oct. 7, 1999).
\109\ Id. at *1.
\110\ Id.
\111\ See id. Thus far, Federal district courts that have faced the
``Commerce Clause'' issue have generally remanded the cases back to
state courts, absent diversity of citizenship, holding that the
municipal suits do not present a Federal question involving interstate
commerce. See Boston v. Smith & Wesson, 66 F. Supp. 2d 246 (D. Mass.
1999); Archer v. Arms Tech., Inc., No. CIV. 99-40254, 1999 WL 993306
(E.D. Mich. Oct. 14, 1999).
\112\ 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).
\113\ 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)).
\114\ 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 attorney's simply want
to eliminate hanguns.'' \115\
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\115\ 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.'' \116\ 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.'' \117\ 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.'' \118\
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.
---------------------------------------------------------------------------
\116\ Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521-22
(1992).
\117\ 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.'').
\118\ 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.\119\ 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.\120\ ``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.'' \121\
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.\122\
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\119\ 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.
\120\ See City of South Euclid v. Jemison, 503 N.E.2d 136, 138
(1986).
\121\ 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)).
\122\ 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.'').
---------------------------------------------------------------------------
Many courts have respected the separation of powers. For
example, in Forni v. Ferguson,\123\ 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.'' \124\ 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.'' \125\
---------------------------------------------------------------------------
\123\ No. 132994/94 (N.Y. Sup. Ct. Aug. 2, 1995), aff'd, 648
N.Y.S.2d 73 (N.Y. App. Div. 1996).
\124\ Id. at 2.
\125\ 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 United States
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.'' \126\ 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.'' \127\ 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.\128\ 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.'' \129\ Other cities
seek injunctive relief aimed at ``prohibiting the sale of
[firearms] in a manner which causes such firearms to
inappropriately enter the State'' \130\ 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.'' \131\ Similarly,
other complaints seek to preclude, limit, restrain or otherwise
impact lawful commerce beyond its borders.
---------------------------------------------------------------------------
\126\ 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).
\127\ Id.
\128\ See id. at para.25.
\129\ Complaint at para.51, District of Columbia v. Beretta U.S.A.
Corp., No. 00-0000428 (D.C. Super. Ct. filed Jan 20, 2000).
\130\ 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).
\131\ 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).
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Such efforts at extraterritorial regulation aim to reduce
interstate commerce in a manner barred by the Commerce Clause
\132\ and the Due Process Clause of the Fourteenth
Amendment.\133\ Plaintiffs' claims directly implicate core
federalism principles articulated by the United States Supreme
Court in BMW of North America, Inc. v. Gore.\134\ 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 . . .'' \135\
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.' '' \136\ Healy v. Beer Institute
\137\ in turn relied on Edgar v. MITE Corp.,\138\ 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.'' \139\ Healy elaborated these principles
concerning the extraterritorial effects of state regulations:
---------------------------------------------------------------------------
\132\ U.S. Const. art. I, Sec. 8.
\133\ U.S. Const. amend. XIV, Sec. 1.
\134\ 517 U.S. 559, 571 (1996).
\135\ Id. at 571 (citations and footnote omitted).
\136\ Id. at 571-72 (quoting Healy v. Beer Inst., 491 U.S. 324,
335-36 (1989)).
\137\ 491 U.S. 324 (1989).
\138\ 457 U.S. 624 (1982).
\139\ 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.\140\
---------------------------------------------------------------------------
\140\ 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.' '' \141\ This
limitation precludes the national regulatory programs sought in
many complaints filed against the firearms industry.
---------------------------------------------------------------------------
\141\ 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.\142\
---------------------------------------------------------------------------
\142\ 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.'' \143\
---------------------------------------------------------------------------
\143\ 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 of 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 drunks, and
knives and automobiles cannot currently be 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.'' \144\ 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.'' \145\ Knives are mostly
used for nonviolent purposes, such as cooking, but hundreds of
thousands of violent crimes every year are perpetrated with
knives. Thirty-five percent of homicides are committed with
weapons other than guns.\146\ 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.\147\ Alcohol, too,
exacts a toll on society.\148\ For example, in 1996, motor
vehicle accidents involving intoxicated motorists accounted for
over 13,000 fatalities.\149\ 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.\150\ 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.\151\ 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.\152\ Alcohol use by offenders is also involved in 22%
of rapes.\153\ 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.\154\
---------------------------------------------------------------------------
\144\ William Prosser, Handbook of the Law of Torts Sec. 99.
\145\ Dorsey v. Yoder Co., 331 F.Supp. 753, 759 (E.D.Pa.1971),
aff'd, 474 F.2d 1339 (3d. Cir.1973).
\146\ See U.S. Department of Justice, Bureau of Justice Statistics,
http://www.ojp.usdoj.gov/bjs/cvict--c.htm.
\147\ 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).
\148\ 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).
\149\ 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).
\150\ See id. at 20.
\151\ 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).
\152\ 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).
\153\ 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).
\154\ See Caroline Wolf Harlow, Bureau of Justice Statistics
Special Report. ``Firearms Use by Offenders'' (November 2001, NCJ
189369) at 5.
---------------------------------------------------------------------------
Back in 1985, a Federal judge in Patterson v. Rohm
Gesellschaft \155\ 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. . .
.'' \156\ Only a few years later, this ``new age'' of
litigation is already upon us. Whereas lawsuits brought against
BB gun manufacturers \157\ and slingshot dealers \158\ were at
one time viewed as dangerous judicial incursions into
legislative roles, today such lawsuits against even fast food
companies are proliferating.\159\
---------------------------------------------------------------------------
\155\ 608 F. Supp. 1206, 1211-12 (N.D. Tex. 1985).
\156\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999
Conn. Super. LEXIS 3330 at *14 (Conn. Super. Ct. Dec. 10, 1999).
\157\ Koepke v. Crossman Arms Co., 582 N.E.2d 1000 (Ohio Ct.App.,
1989).
\158\ 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.'').
\159\ 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.'').
---------------------------------------------------------------------------
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 moral basis of tort law, 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.'' \160\
---------------------------------------------------------------------------
\160\ 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.\161\
---------------------------------------------------------------------------
\161\ 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 upon it below the flame;
\162\ a person will insist on sitting in a chair \163\ or an
exercise bicycle \164\ 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.\165\
---------------------------------------------------------------------------
\162\ See Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975)
(foreseeable--jury could properly so find).
\163\ 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).
\164\ See Dunne v. Wal-Mart Stores, Inc., 679 So. 2d 1034 (La. Ct.
App. 1st Cir. 1996) (foreseeable).
\165\ Compare Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621
So. 2d 953 (Ala. 1993) (unforeseeable--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--jury could properly so find); Ridenour v. Bat Em Out, 707
A.2d 1093 (App. Div. 1998) (change machine: foreseeable).
---------------------------------------------------------------------------
INCREASED REGULATION THROUGH THE JUDICIARY THREATENS THE SECOND
AMENDMENT'S PROTECTION OF INDIVIDUAL RIGHTS
Governments are immune from suit for failure, even grossly
negligent or deliberate failure, to protect citizens from
crime.\166\ Governments are similarly immune from suit by
victims who were injured by criminals who were given early
release on parole.\167\ Accordingly, it is inappropriate for
the government, through the courts, to make it economically
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,\168\ yet over a dozen
studies have estimated that citizens use firearms in self-
defense between 764,000 and 3.6 million times annually.\169\
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.\170\ 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.
---------------------------------------------------------------------------
\166\ 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).
\167\ Dennis Hevesi, ``New York is Not Liable for Murders,'' The
New York Times (July 10, 1987).
\168\ See H. Sterling Burnett, Nat'l Center for Pol'y Analysis,
Suing Gun Manufacturers: Hazardous to Our Health (1999).
\169\ 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).
\170\ 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.\171\ Only
24% of the gun defenders in the study reported firing the gun,
and only 8% reported wounding an adversary.\172\ Guns were most
commonly used for defense against burglary, assault, and
robbery.\173\ Also, a disproportionate share of defensive gun
users are African-American or Hispanic compared to the general
population.\174\
---------------------------------------------------------------------------
\171\ 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.
\172\ Id. at 173.
\173\ Id. at 175.
\174\ Id. at 178.
---------------------------------------------------------------------------
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.\175\
---------------------------------------------------------------------------
\175\ 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.\176\
---------------------------------------------------------------------------
\176\ 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,\177\
the Fifth Circuit stated that:
---------------------------------------------------------------------------
\177\ 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.\178\
---------------------------------------------------------------------------
\178\ 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.'' \179\
---------------------------------------------------------------------------
\179\ 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.\180\ 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.''\181\
---------------------------------------------------------------------------
\180\ 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.'').
\181\ 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.''
\182\
---------------------------------------------------------------------------
\182\ 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,\183\ 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.\184\
---------------------------------------------------------------------------
\183\ 307 U.S. 174 (1939).
\184\ 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.'').
---------------------------------------------------------------------------
Hearings
No hearings were held on H.R. 2037.
Committee Consideration
On October 2, 2002, the Committee met in open session and
ordered favorably reported the bill H.R. 2037, with amendment
by a recorded vote of 18 to 7, a quorum being present.
Vote of the Committee
1. An amendment in the nature of a substitute was offered
by Chairman Sensenbrenner. The amendment in the nature of a
substitute 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. ``Qualified civil liability action'' is defined as a
civil 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 term,
however, does 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
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.
The amendment in the nature of a substitute defines
manufacturers and sellers of qualified products as those who
those who are federally licensed to manufacture, import, or
deal in firearms and ammunition, as defined by Federal law. The
amendment in the nature of a substitute offered by Chairman
Sensenbrenner was agreed to by a rollcall vote of 18 yeas to 5
nays.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green.......................................................
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 18 5
----------------------------------------------------------------------------------------------------------------
2. Final Passage. The motion to report favorably the bill
H.R. 2037, as amended, was agreed to by a rollcall vote of 18
yeas to 7 nays.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green.......................................................
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 18 7
----------------------------------------------------------------------------------------------------------------
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. 2037 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. 2037, 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, October 4, 2002.
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. 2037, 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 Ken Johnson
(for Federal costs), who can be reached at 226-2860, Angela
Seitz (for State and local impact), who can be reached at 226-
3220, and Cecil McPherson (for private-sector impact), who can
be reached at 226-2940.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2037--Protection of Lawful Commerce in Arms Act.
H.R. 2037 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. 2037 would not
have a significant impact on the Federal budget. Enacting the
bill would not affect direct spending or revenues.
H.R. 2037 would impose both an intergovernmental mandate
and a private-sector mandate as defined in the Unfunded
Mandates Reform Act (UMRA) by prohibiting 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 lawsuits would be resolved under current
law, plaintiffs could stand to receive significant amounts in
damage awards. 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 revenues from damage awards) or
whether they would exceed the annual thresholds established in
UMRA for intergovernmental mandates ($58 million in 2002,
adjusted annually for inflation) and for private-sector
mandates ($115 million in 2002, adjusted annually for
inflation).
On October 3, 2002, CBO transmitted a cost estimate for
H.R. 2037 as ordered reported by the House Committee on Energy
and Commerce on September 25, 2002. Neither version of the bill
would have a significant effect on the Federal budget. Both
versions of the bill contain intergovernmental and private-
sector mandates, but CBO has no basis for estimating the
aggregate costs of these mandates.
The CBO staff contacts for this estimate are Ken Johnson
(for Federal costs), who can be reached at 226-2860, Angela
Seitz (for the State and local impact), who can be reached at
226-3220, 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.
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 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
WEDNESDAY, OCTOBER 2, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:57 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.
* * * * * * *
The next item on the agenda, and pursuant to notice, I now
call up the bill H.R. 2037, the ``Protection of Lawful Commerce
in Arms Act,'' for purposes of markup and move its favorable
recommendation to the House. Without objection, the bill will
be considered as read and open for amendment at any point.
[The bill, H.R. 2037, follows:]
Chairman Sensenbrenner. Without objection, the amendment in
the nature of a substitute before all Members shall be
considered the original text for purposes of amendment, shall
be considered as read and open for amendment at any point.
[The amendment in the nature of a substitute follows:]
Chairman Sensenbrenner. And the Chair recognizes himself
for 5 minutes.
This bill provides protection for those in the firearms
industry from lawsuits arising out of the criminal or unlawful
acts of those who misuse their products. The substitute text we
will consider today is based on the text of H.R. 123, the
``Firearms Heritage Protection Act,'' introduced by Mr. Barr,
and H.R. 1966, the ``Interstate Commerce Freedom Act,''
introduced by Mr. Hostettler.
Although the intent of H.R. 2037 and the substitute is the
same, the substitute is a more clearly drafted piece of
legislation than H.R. 2037, which appears to be a bureaucratic
Rube Goldberg device designed primarily for jurisdictional
purposes.
The substitute 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.
Qualified civil liability action is defined as a civil
action brought by any person against a manufacturer or seller
of firearms or ammunition in interstate commerce for damages
resulting from the criminal or unlawful misuse of such
products. However, this term does not include an action against
a person who transfers a firearm or ammunition knowing that it
will be used to commit a crime of violence or a drug-
trafficking crime or a comparable or identical State felony
law. It also does not include an action brought against the
seller for negligent entrustment or negligence per se.
The substitute includes some modifications to the text of
H.R. 123 and H.R. 1966 as introduced. The substitute includes
several additional exceptions to the jurisdictional provision:
an exception for 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 when
used as intended.
The substitute also makes clear that only licensed
manufacturers and sellers are covered by the bill. Recent
litigation against the tobacco industry has inspired lawsuits
against the firearms industry on theories of liability that
would hold firearms manufacturers and sellers liable for
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 force firearms
manufacturers into bankruptcy, leaving potential plaintiffs
asserting traditional claims of product manufacturing defects
unable to recover more than pennies on the dollar in a Federal
bankruptcy court.
Lawsuits seeking to hold the firearms industry responsible
for criminal or unlawful use of its products are attempts to
accomplish through litigation what has not been achieved by
legislation in the democratic process. Various courts have
correctly described such suits as ``improper attempts to have
the court substitute its judgment for that of the
legislature.'' As explained by another Federal judge,
``Plaintiffs' attorneys simply want to eliminate handguns.''
The unpopular nature of firearms in some quarters threatens
to weaken the moral foundation of tort law generally, as well
as the separation of powers, if left unchecked by the Congress.
If the judicial system is allowed to eliminate the firearms
industry based on legal theories holding manufacturers liable
for the misuse of their products, it is also likely that
similar liability will be applied to an infinitely long list of
other industries whose products are statistically associated
with misuse.
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 plaintiffs' unconventional
application of tort law against such product would apply also
to automobiles, knives, and even high-calorie food.
A few years later, to the detriment of the American economy
and consumers everywhere, this new age of litigation is already
upon us. As we are all well aware by now, even once fanciful
lawsuits against fast-food companies are rapidly proliferating.
It is time for Congress to fulfill its constitutional duty and
exercise its authority under the Commerce Clause to prevent a
few State courts from bankrupting the national firearms
industry and denying all Americans their fundamental rights to
keep and bear arms.
Who would like to give an opening statement on the
Democratic side?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, I ask unanimous consent that a
statement of the Ranking Member, Mr. Conyers, be entered in the
record at this time.
Chairman Sensenbrenner. Without objection.
[The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
It is truly a sad day, when cities and communities, all across
America, are plagued with random acts of gun violence and this is our
solution. There is no doubt that some bad apple members of the gun
industry bear some responsibility because they have failed to
incorporate safety devices and have marketed guns to criminals as being
fingerprint-proof or easily concealed. Is this really the best proposal
we have to offer to deal with this problem, granting immunity to the
very culprits responsible for imposing the harm?
First, it 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 leaves unprotected those individuals that
sustain foreseeable injuries resulting from design defects. This
loophole is unbelievable considering the increasingly high number of
accidents being reported involving innocent children.
Second, 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 loophole 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.
Finally, the bill continues to perpetrate what former Supreme Court
Chief Justice Warren Burger said was ``one of the greatest pieces of
fraud, I repeat the word `fraud,' on the American people by special
interest groups that I have ever seen in my lifetime.'' In its
findings, it contains 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.''
Some might say this bill is nothing more than an attempt at the
11th hour of the Congress to solidify the Republican base by throwing a
bone to gun owners.
HR 2037 sends the wrong message to manufacturers, dealers and other
members of the gun industry. It says to these various groups that even
when you act irresponsibly, you will not be held accountable for your
actions. I strongly urge my colleagues to oppose this measure.
Chairman Sensenbrenner. The gentleman is recognized for 5
minute.
Mr. Scott. I yield the balance of my time to the gentlelady
from California.
Ms. Lofgren. Thank you, Mr. Scott.
I will not use all of the time yielded to me, and I realize
that on this Committee there are differences of opinion
relative to the use of guns and the amount of regulation that
should or should not be in place relative to gun usage and gun
purchases by people who are felons or mentally ill and the
like.
But I don't think this bill really is about that fight. I
think this bill is about California. And as a Californian, I
really feel the need to stand up for the State government of
California that has recently made a decision relative to tort
law in California. And I think it is obvious that this--
California being such a large State and deciding that why
should gun manufacturers--of all the people who make products,
why should they be singled out not to be held accountable for
harm that they do under the tort system?
Having made that decision, I think it is improper for the
Federal Government to go in and second-guess the California
Assembly, State Senate, and Governor, who were lawfully elected
by the voters of that State to make the determination relative
to tort law.
On a personal level, I must say I agree with the decision
made by California legislators. You know, some of these cases
have to do with negligence in the distribution and the like,
but there are more traditional issues as well. One of the
things we found recently is that the trigger locks put in place
on handguns fail to protect and actually preclude the use of
the weapons more than half the time.
Now, if I'm a parent and I have a handgun and I put a
trigger lock--I purchase a handgun with a trigger lock to
protect my child and the trigger lock doesn't work and my child
is harmed, why should the manufacturer be exempt from liability
in that circumstance? I just don't think there's a good
rationale for saying of all the things that we're going to pre-
empt, of all the industries we're going to protect, that we are
going to single out gun manufacturers and say that they cannot
be held accountable as any other manufacturer of a product
would be under the traditional tort law.
I recognize that, in addition to the substance of this
issue, that the Chairman has once again clarified the
jurisdiction of the Committee, and for that we're always
grateful. But I would like to say--I don't plan to offer
amendments to the bill because I don't think it can be fixed. I
plan to vote no. I believe that it will not become law, and I
think it is improper to try and overrule the State of
California.
And I yield back to Mr. Scott the time and thank him for
yielding.
Mr. Scott. I yield back, Mr. Chairman.
Chairman Sensenbrenner. Without objection, all Members will
have 5 days to put opening statements in the record.
[The prepared statement of Mr. Hostettler follows:]
Prepared Statement of the Honorable John N. Hostettler, a
Representative in Congress From the State of Indiana
Thank you, Mr. Chairman, for yielding.
I support this bill and the Constitutional principles that it
embraces, and I thank the Chairman for considering this important piece
of legislation today.
Manufacturers, dealers, and importers of firearms should not be
subjected to frivolous lawsuits solely because they design,
manufacture, and sell these products.
These frivolous lawsuits threaten to slowly erode our 2nd Amendment
rights.
This bill, as amended with language from H.R. 123 and H.R. 1966,
will ensure that manufacturers and dealers will not be held liable when
harm is inflicted by a third party's misuse of the product.
Using a firearm to engage in criminal activity is an intervening,
superceding cause of harm for which the criminal should be punished
instead of frivolously punishing the manufacturer of the firearm.
This bill reaffirms our 2nd Amendment rights and restores freedom
to this area of civil liability actions.
I urge my colleagues to also support this bill and the important
rights it protects.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
For the life of me, I cannot figure out why of all of the important
pieces of legislation before the committee, why it is so urgent, with
the short time that we have left before the session ends, to consider
this bill that would grant extensive immunity to gun dealers and
manufacturers, even if they engage in reckless or negligent behavior.
It seems to me that this is another bone that the majority is
throwing to another industry. This time the gun industry--perhaps a
bone is the wrong analogy--this may be more appropriately characterized
as a juicy steak. You would think that we would be leery of considering
legislation like this, that gives undue benefits to the gun industry in
light of the public perceptions that congress is in the hands of
corporate interests. In a year where we have witnessed the fall of
Enron, MCI Worldcomm, Tyco and Adelphia you would think that we would
tighten up regulation on potential abuses and threats available to
corporations. This legislation proves otherwise.
Section 4 of this legislation effectively eliminates protection for
individuals that sustain foreseeable injuries resulting from design
defects. I don't know how this can be. This basically suggest that
where there is an obvious risk based on the design of the gun and the
gun manufacturer with his eyes closed could see the risk, the gun
manufacturer will not be liable for the injury. This result is amazing
in light of the number of innocent children who die from gun injuries.
Surely gun manufactures should be responsible for correcting
foreseeable risks.
Another problem is the bill's definition of Negligent entrustment.
The bill defines this to include only initial transfers completed
between the seller and purchaser of a gun even where the seller has
knowledge that the original purchaser plans to transfer the gun to high
risk individuals. In this time of terrorism, and in a nation where our
communities are ripped with gun violence, it seems to me that we would
want to hold manufacturers liable for their knowledge a seller's intent
to transfer a gun to a high risk individual. This bill chooses to do
the opposite and give these manufactures cover.
Again, Mr. Chairman, this is the wrong message for us to send at
the wrong time. There are other issues of great importance pending this
committee and we should be addressing those measures as opposed to
addressing handouts to the gun lobby.
Thank you Mr. Chairman.
Our current law protects our nation's citizens from The protection
of our society rests on two judicial pillars--criminal and civil law.
Under criminal law, gun dealers and manufacturers are prohibited from
selling to a certain narrowly defined class of people--people who
already have convictions, people who are fugitives from justice, and
people in a number of other categories.
But these criminal gun laws are not sufficient by themselves. We
rely on the civil justice system to impose on gun dealers and
manufacturers a duty to act reasonably and responsibly when selling
their products.
Like other businesses, and like everyone else in America, if gun
dealers and manufacturers do not act reasonably--if they act
negligently, or if they blatantly disregard the obvious consequences of
their actions--they may be held liable. This is important, because they
are society's last checkpoint before deadly weapons are placed directly
into the hands of dangerous individuals.
If we ever wanted to give gun dealers and manufacturers an
incentive to act carelessly and recklessly, H.R. 2037 is the way to do
it.
The bill says to gun manufacturers and gun dealers: go ahead and
ignore common sense, disregard the consequences of your actions, and we
will let you off the hook. As long as you meet the technical letter of
the criminal statutes, you are no longer responsible for irresponsible
and reckless actions. You, unlike any other industry, are no longer
required to act reasonably.
This proposed bill is even more outrageous considering the numerous
examples of gun dealers and manufacturers who bury their heads in the
sand and try to avoid responsibility for the damage they cause. Why are
we choosing this industry, which has such a poor record, to single out
for special exemptions?
At my request, undercover investigators from the U.S. General
Accounting Office posed as gun buyers who wanted to acquire armor
piercing ammunition. The GAO investigators approached numerous dealers
and openly discussed whether the ammunition would be able to ``take
down'' an airplane or pierce an armored limousine.
Despite these incredible reg flags, every single ammunition dealer
that GAO spoke with was willing to make the sale. Not one dealer even
reported these suspicious activities to law enforcement authorities.
None of these dealers took any actions that a ``reasonable'' person in
their shoes would have taken under the same circumstances.
I have a copy of several excerpts from GAO's undercover tape
recordings, which I would like to make part of the record.
My point is not that dealers who act like the ones recorded on the
GAO tapes should be held liable per se. Each case should be considered
on the basis of the specific facts surrounding it. But what is
important is preserving the civil justice system as a way of holding
people accountable if they do act irresponsibly.
Gun dealers and gun manufacturers are not the only ones who should
have a duty to act responsibly. We in Congress should act responsibly
as well. But this is not responsible legislation, and it should be
rejected by the Committee.
[The prepared statement of Mr. Wexler follows:]
Prepared Statement of the Honorable Robert Wexler, a Representative in
Congress From the State of Florida
Thank you, Mr. Chairman.
The basis of product liability law is grounded in common sense;
product manufacturers and sellers must take reasonable precautions to
prevent injury. This legislation would exempt the gun industry from
much of the liability for actions of which they hold a level of
responsibility. As a result, gun manufacturers who refuse to build
safety features into their products could simply release their wares
into the marketplace without a care. Gun sellers who refuse to take
reasonable precautions to prevent criminals from obtaining firearms
would be equally as carefree.
It is not unreasonable to have gun manufacturers provide safety
devices to prevent accidental injury. It is not unreasonable to require
gun sellers to take steps to prevent criminals from obtaining firearms.
We only ask that those in the gun industry do what people in every
industry do--use common sense. So being presented with this
legislation, I must ask why the bill's proponents think it is
unreasonable to believe that gun manufacturers and sellers are unable
to exercise common sense. My fear is not that they are unable, but that
they are unwilling.
It is more than irresponsible to exempt gun manufacturers and
sellers from these laws; it is unconscionable. The House majority
leadership should be ashamed of themselves for trying to send a
legislative gift basket to the gun industry at the expense of victims
of firearm injury. In the waning days of this Congress, when meaningful
legislation to improve the lives of all Americans is left waiting to be
considered, it is especially insulting to the families of these victims
that their right to seek redress in court would be preempted by
lawmakers seeking only to serve the needs of the gun industry.
I ask that my colleagues exercise common sense and vote down this
legislation.
Thank you, Mr. Chairman.
[Intervening business.]
We will now return to H.R. 2037. Are there amendments?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Frank. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Frank. I got in trouble last time and caused some
confusion when I moved to change the title, so I won't do that
now, but it does seem to me this is inappropriately titled.
Instead of the Protection of Lawful Commerce in Arms Act, it
ought to be the Decent Burial for the Doctrine of States Rights
Act, because it is now very clear that the notion that there is
some general boundary between Federal and State concerns has
been dissolved in a bath of right-wing ideology in this
Committee and elsewhere.
Whenever States, either through their legislature or
through their courts or through any other duly constituted
State entity, threaten to engage in public policies which have
historically and constitutionally been the prerogative of the
States, but which a majority of this Committee and this House
does not like, States rights goes out the window.
This is an argument that says we, the Federal Government,
will pre-empt anytime, anywhere, anyplace, what States are
doing that we don't like.
Now, I must say that from what I have seen, I have not yet
been persuaded on the merits of any lawsuit against the gun
manufacturers. I believe that if I were the official in a local
government or a State government, if I were involved in this, I
would not bring such suits. I think they are a mistake. But I
do not understand when it became out job to be the supervisory
board for the State courts.
And let's be very clear. There is no principle left, there
is no rule that says, well, these are State matters and these
are Federal matters. Federal matters are whatever this Congress
wants them to be.
Now, as constitutional doctrine, that's perfectly
legitimate. The people who wrote the Constitution 200-and-
whatever years ago didn't know a great deal about modern times.
And it is valid to say that, in effect, things have gotten
nationalized.
My objection is not to the assertion of national supremacy.
It is to the inconsistency with which it is asserted and the
fact that it is governed by ideology.
If people want to say straightforwardly that they are for
the issue being decided at whichever level of government they
are likely to favor the outcome, that's a perfectly reasonable
position. But let's understand what we are saying. We are
saying that modern technology and a whole range of other things
have outdated that part of the Constitution, and the
Constitution really no longer has the distinction between
Federal and State jurisdictions. Because if this is a Federal
issue, then so is virtually everything else. There is hardly a
tort law that's left--we've done medical malpractice. We're
doing this. I cannot think of anything that would be excluded
from this rationale.
So on that basis, I am voting against it. I must say that I
do not myself hold to a strict constitutional States rights
view. I do believe that there is a problem when we assert
jurisdiction and impose uniformity in those matters which are
best left to the individual discretion of the States. And so--
and as was made clear by the Chairman--this is a negative
judgment on the capacity, perhaps good faith but certainly
capacity of the State courts correctly to decide important
measures. I do not think that adverse judgment on State courts
is warranted. I do not think we ought to allow ideology to
drive constitutional views. And I think we also ought to be
clear that given whatever else we have done this year, this
puts the final nail in the coffin of the doctrine that there
are things which are constitutionally committed to the States
and that we shouldn't have.
Now, I realize this is the Congress and not the court. At
the same time that Congress is pre-empting these various State
decisions, we have a United States Supreme Court majority,
generally cheered on by many of the Members of this Committee,
that is systematically dismantling Federal laws with a scope
beyond what I've generally seen. And so there are States
rights. They shouldn't, I guess, overstate it.
According to the prevailing conservative theory in America,
the States have a right to discriminate against almost anybody
except on racial grounds. States cannot be forbidden by the
Federal Government to discriminate against people with
handicaps or people because of their age or almost anything
else. States cannot be compelled to respect the rights of
certain citizens. That's a violation of States rights. But if
the State courts decide to handle tort suits, medical
malpractice here, matters that have traditionally been within
the entire compass of the States, right-wing ideology will pre-
empt that. I think that is very bad public policy.
Mr. Barr. Mr. Chairman?
Chairman Sensenbrenner. Are there amendments? The gentleman
from Georgia?
Mr. Barr. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognize for 5
minutes.
Mr. Barr. Thank you.
Mr. Chairman, I commend you for bringing up the legislation
and offering the substitute. Even though this debate this
morning is just getting started, we've already heard two Alice-
in-Wonderland propositions through the looking glass.
On the one hand, we have been accused through the proposal
before us today of carving out an exemption or an immunity from
a particular industry when, in fact, what we're doing is not
carving anything out; we are preventing courts from doing
precisely that. Lawful, legitimate manufacturers and sellers of
lawful, legitimate products have, through the entire course of
our Nation's commercial history pre-dating the Constitution,
have enjoyed immunity from being liable, held liable for a
subsequent unforeseen misuse, including criminal misuse, of
their products.
These lawsuits that have been cropping up over the last few
years are attempting to change all of that through the court
system by bringing specious lawsuits, making one particular
category of manufactured item or sold item, that is, firearms,
liable when nobody else is. And all we're doing here is--we're
not carving them out for an exemption from liability. We're
simply saying that they ought to be treated like everybody else
always has been and, in fact, is. So that is the most specious
of specious arguments to say that we're carving out immunity
from liability.
The other one is what we've just heard, and that is that it
is not a proper role for the Congress to step in and reassert
an explicit constitutional right. The first amendment to the
Constitution, the ``Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press,''
et cetera, I'll guarantee you that those that just rant and
rail and rave against this particular bill as somehow not an
exercise in proper federalism or federalist theory would be the
first in line to propose that the Congress would step--should
step in, would have to step in if any State or municipality
dared to try and bring a lawsuit or pass a local ordinance or a
piece of legislation that somehow infringed on free speech or
infringed on freedom of the press or infringed on the
establishment of religion clause. Yet when it comes to the
second amendment, which is just as explicit as the first
amendment in its recited guarantees of a right, an inherent
right of the people, in this case the right to keep and bear
arms, those on the other side that favor gun control step in
and say, Ah, how dare you try and reassert, reaffirm that
constitutionally protected right, and step in and tell
jurisdictions such as municipalities that they cannot move to
infringe that right.
What we're doing here today, Mr. Chairman, in this piece of
legislation, this proposal, both the underlying bill as well as
the substitute, is to simply reaffirm that this is, in fact, a
constitutionally guaranteed right and to make the statement
that municipalities, for example, cannot just step in with
impunity and try and derogate that right through these specious
lawsuits. No other industry is subject to this, and here,
again, we're not carving out the firearms industry or those who
legitimately sell or retail firearms for special protection.
We're simply saying that they shall not be subject to special
punishment, unequal protection of the law, which is what these
lawsuits would do and have tried to do.
So this is a very sound piece of legislation. It is very
carefully crafted, H.R. 123 and the substitute. It is not
overly broad. It simply reaffirms a constitutionally guaranteed
right and rights the ship of state in the proper context. We're
not carving out anything special. We are simply saying that
local courts, local municipalities cannot provide unequal
protection of the law in carving out for punitive treatment a
legitimate, lawful industry, which is, in fact, the firearms
industry in this country.
I yield back.
Chairman Sensenbrenner. Are there amendments? If there
are--the gentlewoman from California have an amendment?
Ms. Waters. No. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Waters. I'd like to add my voice in opposition to this
legislation and to in many ways reiterate our support of what
my colleague has said. And I'd like to basically say to my
friends who are always poised to support whatever the NRA would
like to have done in this Congress that this in no way would
lessen your support for what you believe is the letter of the
law and the fourth amendment.
For those of you who support the NRA and most of its
activities, I think this is asking you to go a bit far. And I'd
like for you to just consider it. What you're doing is carving
out special exemption here from liability when, in fact, there
are many other industries and manufacturers of many other
products that have the responsibility for making sure those
products are as safe as they can be, for making sure that they
are utilized properly, to make sure that they know and
understand everything about their product so as to ensure the
safe use of that product.
Here what we're simply doing is creating a very, very
special exemption and saying under no circumstances, under no
conditions should the manufacturers of guns have to assume
liability for the unlawful use of that product.
I think that's extraordinary, and I think that it's going a
bit far. And I certainly would not want to think that the
Congress of the United States would bring its heavy hand to try
and turn around a law that has been produced in the State of
California in an attempt to make sure that these products are
not misused.
So I would just ask you to think about this, to think about
all that you have done to give comfort and protection to the
right of people to manufacture guns, to the NRA to be able to
promote and organize its efforts around the ability for people
to own and maintain guns. You have done all of that. How much
more do you need to do? I think this is asking you to go a bit
far to give special exemption from liability protection to
manufacturers, and I would ask you to reconsider. And I yield
back the balance of my time.
Chairman Sensenbrenner. Are there amendments? If there are
no amendments, the question is on adoption of the amendment in
the nature of a substitute. Those in favor will say aye? Those
opposed, no?
The ayes appear to have it.
Ms. Waters. rollcall.
Chairman Sensenbrenner. rollcall is ordered. The question
is on adoption of 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. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. No.
The Clerk. Mr. Frank, 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?
[No response.]
The Clerk. 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?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members who wish to cast or change
their vote, the gentleman from North Carolina, Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye.
Chairman Sensenbrenner. Further Members who wish--the
gentleman from Alabama, Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Chairman Sensenbrenner. Further Members who wish to record
or change their votes? If not, the clerk will report.
The Clerk. There are 18 ayes and 5 nays.
Chairman Sensenbrenner. And the amendment in the nature of
a substitute is agreed to.
The Chair notes the presence of a reporting quorum. The
question is on reporting the bill favorably. Those in favor
will say aye. Opposed, no.
The ayes appear to have it. The ayes have it and the----
Mr. Barr. Recorded vote.
Chairman Sensenbrenner. A recorded vote is requested. Those
in favor of reporting the bill favorably 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. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. 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?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. No.
The Clerk. Mr. Frank, 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?
[No response.]
The Clerk. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. No. Thank you.
The Clerk. Ms. Jackson Lee, no. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Ms. Baldwin?
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members in the chamber who wish to
cast or change their vote. The gentleman from California, Mr.
Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. The gentleman from South Carolina,
Mr. Graham.
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye.
Chairman Sensenbrenner. Other Members who--the gentleman
from Ohio, Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Chairman Sensenbrenner. Other Members who wish to cast or
change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 17 ayes and 6 nays.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Aye.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Meehan.
Mr. Meehan. No.
Chairman Sensenbrenner. Any other stragglers?
[No response.]
The Clerk. Mr. Chairman, there are 18 ayes and 7 nays.
Chairman Sensenbrenner. And that includes the votes of
Messrs. Issa and Meehan?
The Clerk. Yes, sir.
Chairman Sensenbrenner. Okay. And the motion to report
favorably is agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute, incorporating the amendment adopted here today.
Without objection, the Chairman is authorized to move to go to
conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes,
and all Members will be given 2 days as provided by the rules
in which to submit additional, dissenting, supplemental, or
minority views.
