Larry Craig

Mr. CRAIG

Mr. CRAIG. Mr. President, I will use some of my time at this moment. At the outset, let me say Senator Mikulski and I are best of friends. We appreciate our friendship, and we work closely on a variety of pieces of legislation. There is nothing I would do nor is there anything S. 1805 will do to damage the argument and passion and concern Senator Mikulski has put before us today with her amendment. If you believe in the underlying bill, S. 1805, there is a problem, and the problem is Senator Mikulski carves out a very big exception and guts the bill in the underlying principle. Let me talk about that principle. I ask the Senator to go with me to page 7 of the bill and to look at section 4 of the bill. Let us talk about that in relation to the phenomenal tragedy that hit this city and the families she is discussing. Not only did her friends and neighbors hunker down in fear, but so did we as John Lee Malvo and John Allen Muhammad terrorized the neighborhoods in Maryland and Virginia. Here is the problem. What are the facts? The Senator said I am not going to try the case on the floor, but I am going to point fingers. I am not going to try the case on the floor, but I am going to point fingers. We probably have reasonable cause to point fingers at Bull's Eye in Tacoma, WA. Something went wrong up there. There are over 300 guns missing. Lee Malvo himself said, I stole the Bushmaster I used in the sniper incidents in Virginia and in Maryland. ``I stole the gun.'' He said so. It is on the record. Already he sets up an interesting scenario. As a result of that, the BATF pulled the license of the gun dealer and recommended felony charges be brought by the Justice Department. This case is maturing at this moment. What does our bill do? It tries to very narrowly create an environment and an exception. Let us go to that bill and to page 7. Let me read starting on page 6 of the bill because I think it is important. Many Senators have ignored this in the rhetoric of the day. They shouldn't ignore it. 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 a person or a third party but shall not include-- In other words, the exceptions under which the Malvo and Muhammad case can be tried in which those parties the Senator is talking about contain compensation are the following. No. 1, an action brought against the transactor convicted under section 924 of title 18 United States Code or a comparable or identical State felony law by a party directly harmed by the conduct for which the transferee is convicted. Parties harmed. In other words, did the transferee, the gun dealer, malfunction? Did he break the law? There is a strong appearance that he might have. No. 2, an action brought against a seller for negligent entrustment or negligent per se. No. 3, an action in which a manufacturer or a seller of a qualified product knowingly and willingly violated State and Federal statute applicable to the sale or marketing of a product and the violation was a proximate cause for the harm and for which the relief is sought. No. 4, an action for breach of contract or warranty in connection with-- And then we go on to deal with basically product liability. My point is quite simple. I believe we are protecting those families. I would not write the kind of law that is being suggested would be written. What I am concerned about are lawsuits in which we are trying to hold accountable the innocent party--in this case potentially a manufacturer of a product--unless there is criminal intent, or unless they have broken the law.

Mr. CRAIG. I can't yield. My time is limited. I am sorry. The Senator has had time. Let me continue. That is the sense of the argument we are dealing with here. Negligent entrustment: In subparagraph (a)(2), the term ``negligent entrustment'' means the supplying of a qualified product by a supplier for use by another person when the supplier knows or should know-- That is very important. --the person to whom the product is supplied is likely to and does use the product in a manner involving unreasonable risk of physical injury to the person or to others. What are we trying to do here? Again, I have said time and time again over the last 24 hours it is a very narrow exception, but to entrust us to a century of tort law that says innocent parties are not guilty nor should they be swept into lawsuits if they have met certain standards of the law--in this case, licensed gun dealers and manufacturers. Did the folks up at Bull's Eye in Tacoma meet those standards? We don't know. But I will tell you the BATF pulled their Federal firearms license. There is an investigation underway. If they lost that many firearms and they didn't notice it and they didn't report it, I am not an attorney, but I have to assume they have a big violation on their hands. If Malvo walks in and pulls a Bushmaster from off the rack and walks out with it and that is not detected, they have a problem on their hands. I believe they have a problem on their hands, and they are not exempt. The argument is--and some have used it--they do not even make it to the courthouse. That is not a valid statement. This is a basis from which you argue before the court and a knowledgeable, and I hope trusting, judge will take these evaluations in hand and make the determination that this is not a frivolous or a junk lawsuit; that there is basis, and the reason there is basis is because there has been a clear violation of Federal law. If there has not been a violation of Federal law, even though many of us can certainly have great concern about the families involved, do we continue to suggest that we go out and harass through the courts legal, law-abiding citizens and producers of a legal product in this country simply because it fits the passion of the day or the politics of the moment? I think not. I don't think the Senator from Maryland wants to do that. It is clear if you carve out this exception, you gut the bill because you are saying no, no. We are saying we are giving you all of these exceptions very clearly in the law. I read them to you. They are in the law. It is section 4. That is what we are dealing with. It is a very important part of it. We think it is the right thing to do at this time. I believe a majority of my colleagues in the Senate agree with that. The reason they agree is for the very reason we have been very specific and clear to adhere to Federal law but to make sure we are not just going to the court for the purpose of expanding the sweep that one might like to take because they do not like guns or they do not like the current law or they want to control them in different ways. The Federal law is there. It is clear. It is present. The investigation is underway. We cannot try that case here. But I do agree with the Senator from Maryland, we cannot try to, but we can point fingers. Our bill, S. 1805, sets up a very clear case in which these lawsuits can be effectively argued and a decision made whether there was a rupturing of Federal law or whether we do have law-abiding practitioners in the business of the manufacturing and sale of firearms in this country. That has to be and it must remain the basis of the argument and the basis of this law. The amendment the Senator offers goes directly in the opposite, to carve out special exceptions within the law now and into the future. I retain the remainder of my time.

Mr. CRAIG. With 14 seconds remaining for the Senator from Maryland to argue, this is her amendment, and under the unanimous consent I will then offer the Frist-Craig amendment. As we know, then they will be stood up to be voted on, Frist-Craig first, Mikulski second. If the Senator would like to make any concluding remarks about her amendment, I would certainly welcome that. She then controls 20 minutes of the 40 that would be on my amendment and the debate could go on.

Mr. CRAIG. On your topic.

Mr. CRAIG. I have not offered it yet.

Mr. CRAIG. Then we set yours aside for the Frist-Craig debate on the same subject matter and then stand these up for votes.

Mr. CRAIG. With that, I assume all time is yielded back.

Mr. CRAIG. I ask that the Mikulski amendment be set aside for the purpose of introduction of an amendment on behalf of Majority Leader Frist and myself.

Mr. CRAIG. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. CRAIG. Mr. President, I will use a limited amount of that time. If the Senator from Maryland wishes to close out the debate, I will make my closing statement, and we can move to a vote quickly. Let me address what the Senator from New Jersey said a moment ago and direct his attention to subsection (v) of section 4. He talked about a car not functioning properly and somebody being injured. That is called product liability. It says: (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. . . . Please read the bill when you make those kinds of statements because if the Senator had, that would have been, in my opinion, improper. We are not talking product liability.

Mr. CRAIG. No, I am only responding.

Mr. CRAIG. The Senator knows I am only responding to a comment he made. I am simply suggesting that for the next few moments he might wish to read that subsection. Here we are not dealing with product liability. It appeared the Bushmaster tragically operated very well. What is at hand is, Are the people at Bull's Eye involved in wrongdoing? That is the question at hand. And should we go after them? We are carving that out in a way so that the victims can go after them if they are found guilty of a Federal violation. Let me read what CRS suggests the Daschle-Craig amendment does: In the case at hand-- They are referring to the DC snipers-- it has been asserted that the firearm-- And we can only say ``asserted'' at this moment because it is under investigation-- it has been asserted that the firearm used in the D.C.-area sniper shootings ``disappeared'' from Bull's Eye's place of business ``[o]n or about August or September of 2002,'' and was not reported as missing until November 5, 2002. Pursuant to 18 U.S.C. 923(g)(6) a licensee-- That is Bull's Eye-- is required to report the theft or loss of a firearm within 48 hours after the theft or loss is discovered. Thus, in the event that it is established that Bull's Eye was aware that the firearm was missing from its inventory more than 48 hours prior to November 5, 2002, the amendment would appear to lend further support to the application of the exception to immunity under 4(5). . . . My point is quite simple: If the evidence is there--and I believe the Senator from New Jersey yesterday referenced the presence of Lee Malvo on a video. I was unaware of that. If that is true, that is apparently more evidence. But once again, here we are with a jumble of facts that we really do not know because we were not the investigators; we were not on the scene. We are taking this from newspaper reports. What I am saying is if the Bull's Eye shop is in violation of the law, then the Frist-Craig amendment or the underlying S. 1805 clearly does protect all of these victims so they have their day in court. The courthouse door is not shut, would not be shut, will not be shut by S. 1805 or the amendment at hand. I retain the remainder of my time.

Mr. CRAIG. Mr. President, I have 8 minutes remaining. I will try not to use it and will yield it back so we can get to the votes on these two amendments. The Senator from Maryland talked about an American principle, and I agree with her. There is an American principle that says everyone should have their day in court, and she is right. There is a second American principle that says that law-abiding citizens who do law- abiding things should not be dragged into court for frivolous purposes or junk lawsuits. That is the other American principle. It is as old as tort law itself. The responsibility is tied to the individual, unless the individual under law is found totally negligent. She and I have agreed the case cannot be tried here because we simply do not know the facts. We know a little bit about it. We know bits and pieces about it but we have not seen the BATF's report. We have not seen the kind of investigation that has gone on. I agree with the Senator; everyone should have their day in court. I do not know how some are saying that S. 1805 does not even allow them to get to court. It allows them to argue before a judge the basis of the law, and the judge will make the determination. I suggest that that is called ``in court'' and that is exactly what my amendment does. That is what S. 1805 does. It is very clear. The Senator might be suggesting that this is just one small group. No, no, this is not one small group. This happens to be a tragically large group, by all of our estimation in Virginia and Maryland, but once this is decided how will this precedent be used by others? She talks about gutting the opportunity. I suggest her amendment guts S. 1805. Proponents of the amendment claim that it provides an exception for a small group, but any carve-out that is made part of this legislation would have the Government turned on its own principles of equity and justice insofar as the amendment would designate a particular group of people, though sympathetic--and all of us agree to that--different in the eyes of the law than others and justice so far as it would be required to hold remote other responsibilities for the independent actions of two men. That is the essence of the two amendments. They are very clear before us. It is time we vote on these issues. The Senator from New Jersey is now in the Chamber with his amendment. Mr. President, how much time do I have?

Mr. CRAIG. I yield the remainder of my time. I ask for the yeas and nays on the two amendments.

Mr. CRAIG. It is my understanding that, under the agreement, the Frist-Craig amendment would go first and the Mikulski amendment would follow. Vote On Amendment No. 2628

Mr. CRAIG. I move to reconsider the vote.

Mr. CRAIG. Mr. President, I say to my colleagues, you have just voted for the Frist-Craig amendment. If you now vote for the Mikulski amendment, you have totally reversed your vote. The Mikulski amendment guts the underlying bill, S. 1805, carves out a substantial exception. If you are supportive of S. 1805, then you vote no. But do we protect the right of the victims for their day in court? We absolutely do. There are four major exceptions in which we say, if these parties are found guilty, if there was a negligent gun dealer, if there was a negligent manufacturer--and that is a fact and it is proven--then their day in court is there, as it should be. But we do not allow frivolous third-party lawsuits. That is the underlying premise of the bill. Again, if you voted for Frist-Craig, I would ask you to vote against Mikulski. I yield back the remainder of my time.

Mr. CRAIG. I send to the desk the Frist amendment.

Mr. CRAIG. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. CRAIG. Mr. President, I will be brief and yield back the remainder of my time. Of course, our amendment will be set aside. I will offer a Frist-Craig amendment. I hope we can limit the time on that. All are encouraging we vote sooner rather than later. I must say, one of the strengths of the underlying bill, S. 1805, is it adopted the same rules for all plaintiffs, no matter how sympathetic or how unsympathetic; no matter how notorious or how mundane the circumstances of their victimization. It creates the kind of legal standards in this country we believe all people should stand under. The Senator from New Jersey is a man who creates law. The picture beside him is of a man who enforces law. We have obvious and open respect for both, and we should in this country, because we are a country of laws. That gentleman you talked about so eloquently who is pictured beside you is a man who puts on the uniform every day and goes in harm's way. There is no doubt about it. There is not a Senator on this floor who doesn't respect men and women in uniform, whether they be civil police in this country or are men and women in the armed services. At the same time, that man enforces law. His life oftentimes is put in much more jeopardy by plea-bargaining the criminal back onto the street day after day in urban America, and they have to go out and rearrest them and rearrest them again. Tragically enough, those criminals go out and steal guns. Sometimes they buy them. And sometimes they lie when they buy them. But most of them are stopped by background checks today. That officer has to face them again. We understand that principle. That is the history of America. That is the history of law enforcement. The great tragedy today in law is criminal law, in my opinion, that we keep kicking them back to the streets instead of doing the time for the crime and causing that gentleman to have to go out and face them once again because they are a repeat, repeat, repeat offender. What S. 1805 attempts to establish is plaintiffs' rights should be dependent on settled principles of law, not emotion and not sympathy. If a lawsuit has enough merit under traditional tort standards to be allowed by the bill, we believe that cause of action should be available to all plaintiffs, regardless of their occupation or their employer or whether particularly an attacker had harmed them. In other words, we are not suggesting there be carve-outs and special exemptions. But clearly, and I can argue and the Senator has already said, I would come back to those five very key exceptions we have placed in S. 1805. I am not going to repeat those. I have repeated them several times tonight. They are in the bill. They are in the bill a majority of the Senators here support, Democrat and Republican. Why do they? Because they bring stability to the law. They create clear standards. They don't say that a law-abiding citizen producing a lawful product is somehow liable if someone takes it and misuses it; that the person who misuses it is the person who ought to be liable. That person ought to be the criminal, if so found guilty. That is a premise of the law and it is an important premise of the law. I hope my colleagues tonight will oppose the Corzine amendment. It guts the underlying bill. I doubt the Senator from New Jersey planned to vote for S. 1805. I can't view this as a friendly amendment. I don't think it is intended to be. I think it is intended to tear down the fundamental structure built under S. 1805, to establish solid principles, clear understandings, not to allow junk lawsuits to move through, but to allow that gentleman pictured beside you his day in court. Because the courthouse door is not locked. The opportunity to argue before the judge still remains so that suit can be filed, so that case can move on if the principles of the law are met and the standards meet the test. With that, I yield back the remainder of my time and ask the Corzine amendment be laid aside. Amendment No. 2630

Mr. CRAIG. I will be brief. I think our colleagues wish that of us tonight. This amendment is not unlike the amendment the Senate accepted a few moments ago in relation to the Mikulski amendment. Let me read it. It is every bit as simple and straightforward as the amendment of the Senator from New Jersey: Law enforcement exception--Nothing in this Act shall be construed to limit the right of an officer or employee of any Federal, State, or local law enforcement agency to recover damages authorized under Federal or State law in a civil action that meets 1 of the requirements under clause (i) through (v) of subparagraph (A). Of course, I have read that subparagraph and all of those exceptions to you time and time again over the last several days. We believe it is clear-cut. We believe that creates the stability within the law. It sets in motion something very important; that is, the old principle of tort law--that it is the individual who is guilty for their actions and they should not be trying to reach through layers upon layers of acts to find somebody who produced a quality product and say you are guilty because you produced it and, therefore, you ought to pay because somebody misused and damaged or took someone's life. We have never done that as a country, and we shouldn't. We have found negligence, and we should where it exists, where there has been willingness, where there has been a violation of law that is found. People ought to pay the price if they don't play by the rules. In the gun community, I know how important this right is in America, and with this right goes phenomenal responsibility. This Senate, time and time again, down through the decades has established very specifically those responsibilities because we view this as an extremely valuable right. I say to the Senator from New Jersey that I am not going to keep that policeman out of the courthouse. I and Americans respect him and his profession too much to say you cannot go after redress, but you must find that the laws that you enforce are the same laws that you respect and must live by. I retain the remainder of my time.

Mr. CRAIG. Mr. President, will the Senator yield?

Mr. CRAIG. Mr. President, I yield to Senator Sessions. I am not going to respond to the Senator from Illinois only to say that he impugned my heart. He suggested I was a person without sympathy. I have never done that to him. I believe he is a person of goodwill who comes here to represent the citizens of the State of Illinois. When I talk about sympathy, I talk about the impartiality of law. He is an attorney and I am not. He knows that the law is impartial and it is clear. So I must tell you that I grit my teeth a little bit when he suggests that this Senator has no passion or concern for the loss of life. That is a step too far. Let me yield 5 minutes to Senator Sessions.

Mr. CRAIG. Mr. President, I move to reconsider the vote.

Mr. CRAIG. Mr. President, I move to reconsider the vote.