Jack Reed

Mr. REED

Mr. REED. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. REED. Mr. President, I want to join my colleagues and all Americans in offering my condolences and my prayers to the residents of the gulf region. These families have suffered grievously. They have lost all of their possessions. They are without homes, without employment. We owe them a great deal of support and consideration, and, indeed, as I say again, all our prayers. As news reports show, there are heroes throughout the gulf--those who helped neighbors survive the hurricane and those who continue to work in the region to help reunite families and restore order. Americans throughout the Nation are opening their homes to hurricane survivors and volunteering their time and resources to meet the needs of evacuees. But while this disaster shows the best that America can offer, it also shows the worst. It shows that the Federal bureaucracy is ill prepared to respond to a natural catastrophe that we knew was possible. It shows the Federal bureaucracy ill prepared to respond to future potential disasters. It shows a government so tied up in red tape that it is not serving its people at their time of need. In the days, weeks, and months ahead, we will be investigating what went wrong, and there will be plenty of blame to pass around, but we cannot blame the victims of this tragedy as some have chosen to do. Many families in the gulf region did not have the resources or means to leave before Hurricane Katrina struck because this administration's economic policy favored tax cuts for the wealthy over programs that provide economic opportunities for all Americans. Over the last 3 years, poverty has risen in America and the real median income of workers stagnated. We must be willing to look honestly at how budget decisions and tax policy at Federal, State, and local level left New Orleans residents and other communities vulnerable to this tragedy. We must look honestly at how these policies continue to leave millions of Americans vulnerable across the Nation. Hurricane Katrina demonstrated the economic, social, and racial divides that exists in America. As a Nation we must step back and evaluate our priorities. In my judgment, now is not the time to cut funding for social programs such as Medicaid, food stamps, and community development block grants while the administration pushes to repeal the estate tax. Now is not the time to continue to provide corporate tax breaks, while we must help rebuild a region in the midst of massive deficits as a result of the administration's policies. The damage to the national economy wrought by Hurricane Katrina, the expense to rebuild, and the need to provide for low-income and working families in light of this disaster will add to our growing debt. We must prioritize and deal with the needs of the most vulnerable among us. For decades, we have known that New Orleans is in harm's way. Senator Landrieu has often spoken passionately about the Federal Government's duty to help protect wetlands in order to safeguard coastal states. Yet, we continued to allow coastal wetlands to degrade and cut funding to vital programs to protect these natural buffers as well as man-made levees to protect New Orleans. The flood waters from the city of New Orleans must be drained in an expedient fashion. However, we must not ignore the environmental impact that these heavily contaminated waters will have on the long-term public and environmental health of the city. The stagnant waters engulfing New Orleans for the past week contain a myriad of contaminants, including human waste, oil, and even dead bodies. This toxic mixing bowl is rife with disease and harmful chemicals. We are facing a potential ecological disaster as these flood waters continue to be dumped into the surrounding area, and I am greatly concerned that the impact will be seen for years to come. New Orleans is surrounded by Lake Pontchartrain, the Mississippi River, and many precious wetlands. All of these bodies of water drain directly into the Gulf of Mexico. Now is the time not only to evaluate, but also to act to prevent further ecological damage in the region. More must be done to ensure that while we are clearing the city of New Orleans from this devastating flood, we are also working toward its future rejuvenation. Our primary focus must be on getting rid of the red tape and getting aid and assistance to those displaced by Hurricane Katrina. But we must also begin to ask how did this happen. The only way to do that effectively and apolitically is to have an independent commission to investigate the long-term impact of Hurricane Katrina on the people of the gulf region and on our Federal Government's response to this disaster as well as our ability to respond to future events. The bicameral commission announced yesterday by the Majority Leader and the Speaker is not the answer. Having the President head up a task force to investigate his Administration's response is not sufficient. The only way the people of the gulf region and the people of America will get the answers that they deserve is through an independent commission. I also support efforts to restore the Federal Emergency Management Agency, FEMA, to an independent, cabinet-level agency to ensure its effectiveness in preparing for and responding to these types of events. FEMA's director must have the qualifications and abilities to plan for, respond to, and assist in the recovery after such an emergency. We must do better. As the recovery efforts for the victims of Hurricane Katrina continue, we must stand beside the survivors to provide relief and assistance for their immediate needs now. For this reason, I am cosponsoring Senator Reid's Katrina Emergency Relief Act, which will help get these families by providing medical coverage, housing the homeless, educating children, and offering financial assistance. Hurricane Katrina upset the lives of millions, displacing families from their homes and inflicting severe economic damage. Neighborhoods that were once called home are now wastelands, and people are concerned their lives may never be the same. The economic impacts are being felt by low-income and working American families throughout the nation. Indeed, there is an imminent emergency confronting millions of low- income Americans caused by soaring energy cost and diminishing affordability of home heating fuel as winter approaches. The administration cannot ignore this looming crisis. The administration must request emergency funding for the Low Income Home Energy Assistance Program so that these families can remain safe this winter. I also encourage the administration, and my colleagues, to support greater investment in energy conservation programs such as the Weatherization Assistance Program and the State Energy Program to help families. In one way, Hurricane Katrina holds parallels to other situations. We could have anticipated this phenomenon. The reports of the class V hurricane were available to all Federal officials, State officials, and local officials. We knew the levees in New Orleans were not designed to withstand anything more than a class III. Yet we were not ready. This administration ignored what should have been obvious. We had to be ready for a severe hurricane with devastating consequences in New Orleans. This administration was not. This also speaks to what may happen in the future. This should give Americans pause if they think about another natural disaster and, God forbid, perhaps an intentional mass-casualty effect in the United States. If we bring this same level of expertise and skill and insight, then we surely will see another major disaster on our hands. I hope we do not. That is why it is important to look carefully and closely at what transpired and to do so through an independent commission. I hope we learn from this and apply it to the future, but most particularly, I hope we give real, immediate, and effective support to hundreds of thousands, perhaps even a million Americans who tonight still endure the devastation of Hurricane Katrina. I yield the floor.

Mr. REED

Mr. REED. Would the Senator yield for a question?

Mr. REED. That message is, these people don't matter. The only thing that matters is the gun lobby. That would be a terrible message to send. I urge passage of the amendment and retain the remainder of my time.

Mr. REED. Mr. President, first, I thank Senator Craig for a very deliberate and civil debate. I thank my staff, Steve Eichenauer. The legislation before us is not about the facts. There is no crisis in litigation affecting the gun manufacturers. These are the litigation trends of Smith & Wesson: In 2001, 32 cases by municipalities; 10 by product liability. It declined steadily, with four cases ending on appeal and two cases with respect to personal liability. That is not a graph showing a crisis in litigation. The slope is going the wrong way. There is no crisis. There is no threat to procurement of military weapons. That is also conjured up out of thin air. This is not about legal principle. A fundamental legal principle in this country is if you are wronged by the negligence of another, you can go to court. This is not about legal principles. We have had talk about intervening criminal activities taking away the negligence of another. That is not what the statement of torts, which is the black letter law of the country, states. These exceptions in the bill have been carefully crafted to prevent lawsuits, not to enable appropriate lawsuits to go forward. It is not a failure of State courts to act. They have been acting. These cases have been going down under current State law. They are being handled by the States. It is about power, sheer naked power by the National Rifle Association--the power to take us off the Defense bill, the power to take us from that bill which would consider the quality of life and the safety of our troops to go to this legislation, the power to take us away from debate on stem cells which will save people and help people, so we can protect people who deal in dangerous weapons. It is about power; it is not about principle. But there is something else. If this legislation passes, what incentive will there be for a gun dealer or gun manufacturer to act reasonably? There is a rogues' gallery of gun dealers--Realco Guns in Maryland, Southern Police Equipment in Richmond--all across the country--Atlantic Gun and Tackle in Bedford Heights, OH. Hundreds of guns are sold and are ending up at crime scenes. If they are this blatant and reckless now, what do they do when we say, ``Don't worry, no one can touch you''? It will create huge disincentives. Finally, what we are doing today is silencing the voices of victims of gun violence, silencing people who have been wronged through the negligence of another. This is not about trying gun manufacturers for someone else's fault, this is about their own responsibility. Think tonight about what happened in Washington with the snipers. An FBI employee loading material at a Home Depot parking lot--shot. Some of that was attributed to the negligence of a gun dealer. That lady's husband and family would be silenced. Think about the young boy walking to his school in Maryland--shot. His family would be silenced. Think about the cabdriver filling up his cab. Tonight when we fill up our cars, think for a second, what if you were struck down, caught up in that web of violence. What if your family knew part of that was the result of the negligence of a gun dealer, a gun manufacturer. Who will take care of your family? Who will take care of you if you are paralyzed? We are telling those good people, our constituents: You are not worth it; the NRA is more important. You will suffer. If you don't have the money, you will be on charity. That will take care of you. This is wrong. It is wrong morally, it is wrongly legally. We should vote against this legislation. I passionately hope we do. I yield back my time.

Mr. REED. I yield back my time.

Mr. REED. The Senator from Alabama is a lawyer, a Federal attorney, and has made the statement that an intervening criminal act essentially absolves someone of negligence, which I think is a fair response, but yet the statement of torts, which is recognized generally by most lawyers as the statement of basic law in torts, says very clearly that an intervening criminal act does not absolve someone from their own negligence. Because of the standing of the Senator as an attorney, I suggest that his conclusion does not comport with what most people assume is the law of the country.

Mr. REED. Is the Senator ready?

Mr. REED. Mr. President, let me take a very few minutes because I do want to get on with the vote. First, the underlying legislation would deny the attorney general of Texas the right to defend the people of Texas in court with a suit, I believe. Second, the legislature in Texas could not authorize suits. They could under my amendment. But more importantly, going back to the Washington sniper, none of the carve- outs, none of the caveats would reach that. I don't think it is a matter of dispute. Negligent entrustment has been defined in the bill as supplying a qualified product by seller for use by another person where the seller knows or should know. There is no allegation that the seller knew that the young person came in and shoplifted the weapon. In fact, he could argue that there was no sale involved whatsoever. It was shoplifting. But that was negligence because I think we all agree that gun sellers have an obligation to keep their weapons under control. With respect to negligence per se, that is an unexcused violation of some enactment or administrative law. There are many States in the country that don't recognize that as a theory of tort recovery. Again, you would have to show they violated the law, they violated an administrative rule. In the case of Bushmaster, the situation is such that I don't believe there is any relevant legislation that says that an owner has to do anything in a way that would give rise to this negligence, per se. My point is that the legislation before us would effectively carve out all these suits. That is entirely correct. We are faced with a choice. This amendment does not allow these so- called political suits by municipalities, by political subdivisions, by groups, but it should allow individuals who have been harmed to have their day in court. I hope we can prevail.

Mr. REED. Mr. President, I call up amendment numbered 1642. I ask the Presiding Officer to let me know when I have reached 10 minutes. My amendment has an overarching purpose, to preserve the right of an individual to sue for negligence when they have been harmed and when that negligence can be fairly attributed to a gun manufacturer, gun dealer, or a gun trade association. It does not depart from the principles of the law. In fact, it braces the fundamental principle of the law which says if someone owes you a duty of care and violates that duty and you have been harmed, you have a right to go into court. The legislation before the Senate not only sweeps away the rights of individuals but sweeps away the rights of municipalities, counties, and other government entities. This is one of the major reasons the advocates have been talking about in this legislation. They have said there has been a rash of suits by municipalities, not about recovering damages, but about undercutting and undermining the gun industry. I am reluctant to change what I think is well-settled law and well- settled practice, but if we are confronted with this legislation, I propose we step back and perhaps reluctantly eliminate suits by municipalities, but for goodness sakes, we can have and maintain suits by individuals. The reason this legislation is before the Senate is because they claim there is a crisis. But if you look at the financial reports of these companies--of Smith & Wesson and Sturm, Ruger--there is no crisis. The financial report of Smith & Wesson indicates they are actually reducing the amount of their reserve to cover these types of suits, which is a strong indication, because it is real dollars, that this threat is dissipating. It is not becoming more enhanced. This crisis is manufactured. And it is, indeed, evaporating. This suit will deny ordinary people, our constituents, their voice before the courts when they have been harmed. No one is going out and getting shot so they can bring a lawsuit. That is preposterous. They are being shot because people have been either criminal or negligent or both. We have criminal laws to deal with criminals, but we have a well- established body of civil practice which allowed an individual to go in and be compensated, receive damages for the harm they have suffered. This legislation, the underlying legislation, would bar the door to courthouses for real people. Who are some of these real people? We all know about the most notorious incidents in the last several years, the Washington, DC snipers. If this legislation passed in the last Congress, and it was on the verge of passing, these people would have been denied their day in court. Ted Franklin is the husband of Linda Franklin, a resident of Arlington, VA. On October 14, 2002, Linda Franklin was a 47-year-old analyst for the FBI. She had two children and a loving husband. She, like so many of us do, was in the parking lot of Home Depot loading up purchases for their new home when she was killed by the sniper. How did the sniper get his weapon? Well, a teenaged boy walked into a gunshop in Washington State and apparently shoplifted a 3-foot-long assault weapon. The manager did not know about it and he did not know where over 200 weapons were. That is gross negligence, certainly, the kind of fact that would get you before a court. She was killed. A 47- year-old, dependable worker of the FBI. Margaret Walekar is the wife of Premkumar, who was shot at the age of 54 while he was refueling his cab at a gas station. Tonight, as you fill up your automobile at a gas station, just think, someone else was doing that and innocently was killed and the heart of the causation of that tragic event was the negligence. After this legislation passes, if it does, that negligent gun dealer and that negligent manufacturer who contributed the weapons would not be held liable for the death of this man. Carlos Cruz is the husband of Sarah Ramos. They had one son, age 7. She was 34 and was sitting on a bench in front of a post office on October 3, 2003, waiting for a ride to take her to her baby-sitting job when she was shot and killed by the Bushmaster assault weapon shoplifted from that negligent gun dealer in Washington State. I could go on and on and on. These are innocent victims. These are our neighbors. These are our constituents. These are the people we will tell, unless we adopt the Reed amendment, you have no value in the eyes of the court. You have no voice in that court. You are not important. Who is important? The National Rifle Association. The gun lobby. The gun dealers. They are important. But these good people are not important. At a minimum, we have to allow the tort law of the various States that has been worked out to be operative for these individuals. Certain States, very few, have restricted--again at the behest of the gun lobby--certain activities. I don't object to that. But that is more the normal course of activity since tort law is the province typically of the State. But no State is going as far as this legislation. No State is going to the extent of practically barring all claims. Now the proponents will stand up and say, no, no, wait, we have exceptions. These exceptions have been carefully crafted to prevent the very cases I have spoken about and we have spoken about from getting to court. These are the real cases. This is what happens. People buy guns through straw purchases. That activity is virtually totally immunized by this legislation. As a result, we are going to see, I think, more reckless behavior. We have already identified through the reporting system of the ATF and other gun shops across this country that have records and are supplying hundreds of guns to crime scenes, some within a short period of time. A weapon is purchased and a few days later found at a crime scene. If they are behaving that way now under the cloud of potential litigation, what will they do when they feel totally immunized, free, uninhibited, to be grossly negligent? The result, of course, is not some academic statistics. The result is people such as Linda Franklin. I note that a few moments ago, in Senatorial time, we took a vote on legislation that would at least have given children the ability to use the existing tort laws of their State without the conditions and encumbrances of this legislation. That provision by Senator Lautenberg was struck down. That amendment failed. What about the case with respect to the Washington sniper where Iran Brown, a 13-year-old boy, was walking to class? All of us who were here vividly remember watching the television set, vividly remember seeing the reports of a young boy walking to the Benjamin Tasker Middle School in Lanham, MD, and being shot by a sniper. The fear that grasped everyone here, parents particularly, that their child could be the next victim, that their school could be the next target, was palpable. He was rushed to a nearby medical center. Thank goodness, after a month in critical condition he survived. What if he had been critically injured or paralyzed? Who was going to pay for that young child's life and recovery if he could not allege that the negligence of the gun dealer contributed to his injury? That is the reality. This legislation is actually modeled on the legislation adopted by the State of Idaho. Certainly that is a State that is proud of its tradition of recreational shooting and hunting. This State adopted this legislation. They recognized the problem and they took exactly the same steps we have taken. If municipalities and public interest groups are going after the gun dealers or gun manufacturers because they want to make a political point, we are not going to allow victims in Idaho who have been shot to be able to raise their voice in court? Texas has a similar statute. They put restrictions upon municipalities, they put restrictions upon groups that might take political suits, and we have heard about those suits, but they have let ordinary citizens have a much more expansive right to go to court than anything included in this legislation before the Senate. So we are not even being consistent with the States of Idaho and Texas and many others and we are usurping the role of States which traditionally set the standards for tort actions in their own States'. That is an interesting position for people who I used to think were faithful to this notion of State rights, State practice, local control, and let the people of Rhode Island, Idaho, and Massachusetts, let those people decide. We are deciding if this Reed amendment fails and we pass the underlying bill that these people--Linda Franklin and James Franklin, the husband of the victim, and Lisa Brown, the mother of Iran Brown-- are not worth it. They don't mean anything. You have heard people say these are junk lawsuits. Are these lives junk? They are not. We have a chance at least to preserve the right of individuals who have been harmed by the alleged negligence of gun dealers, gun manufacturers, and gun trade associations to get their case before a judge, to ask 12 fellow Americans to decide: Was there a duty by that defendant of more care, more attention, more foresight? Was that duty violated? Was I injured as a result of that and, therefore, should I be compensated by that person? If we fail to adopt this amendment, we are sending a very strong message.

Mr. REED

Mr. REED. Mr. President, I rise in strong support of the conference report on H.R. 3, which will reauthorize our Nation's surface transportation laws and provided significant and needed resources to maintain and improve our nation's roads, bridges, and transit systems. For Rhode Island, this legislation is welcome news and will bring tremendous resources to address a number of high-priority highway and transit projects. This conference report is the product of hard work and bipartisan cooperation, and I was pleased and proud to be named as a conferee on the transit title of this conference report. I believe the transit title of this bill continues the trend of TEA-21 of investing more in transit systems to the benefit of our economy and our environment. I want to thank Chairman Shelby and Sherry Little, Rich Steinman, and John East of his staff for their hard work and bipartisan spirit. I also want to commend my ranking member, Senator Sarbanes, who has fought for transit since the first day he took office, as well as his staff, Sarah Kline and Aaron Klein, for their tireless work in helping my office and others. Lastly, I want to thank my subcommittee chairman, Senator Allard, and his able staff, Tewana Wilkerson, for their work on balancing the needs of old and new transit systems.

Mr. REED

Mr. REED. Reclaiming my time, I say to my distinguished friend and dear friend from Alabama, I am not perturbed. I just fear for his safety, and I thank him. Mr. President, we have heard over the course of the last few days numerous homilies about personal responsibility. The irony, of course, is this legislation says everyone is responsible except for gun manufacturers, gun dealers, and gun trade associations. There has been a discussion about the law. If one breaks a law they should be punished, but such discussions fail to capture the fact that we have essentially two systems with our legal system. There is the system of laws, the statutes, the ordinances that are passed by legislative bodies such as this body, and then there is the civil law: the criminal law and the civil law. The Senator from Alabama went on at length about how we can enforce criminal laws more effectively; we can do good things with respect to criminal law enforcement. But I think we are ignoring the sense that there is also this civil law, where people can go to court if they have been injured and seek redress. What this legislation would do is prevent many Americans who have been injured from going to court and seeking redress, either some type of compensation or some type of equitable remedy. It is important that we recognize this bill will deny a voice to many people, modest people, who have been injured and who seek redress. I was trying to think of a somewhat mundane example about these different systems. Since so much of this legislation talks about, well, if a particular statute is violated, one will be liable, but there is this intersection of obligations both under the criminal law and statutes and under the general principles of civil law. The example I think of is there are some jurisdictions that make it a violation of the law to operate a cell phone in one's hand while they drive, and if one had an accident in that circumstance and someone is injured, the person could be prosecuted for violating the law, but they also could be sued because they have an obligation and duty to pay full attention as they drive. In other jurisdictions without this law, one could not be criminally charged but, of course, they could be sued. Here is what essentially this legislation does in lots of respects. It says we are disregarding those instances where one has a duty to someone under the civil law. We will let them proceed with their suit if there is a criminal violation or a statutory violation, a violation of regulations, but for the vast number of other responsibilities we owe to each other, that are defined for the civil law, one will not have the opportunity to go to court. Essentially, what we have said is we all have these obligations and responsibilities, except this now special, privileged class of gun manufacturers, gun dealers, and gun associations. There is the presumption that has been persistent throughout that the law of the United States in general does not recognize any type of obligation if there is a criminal intervention, if a criminal gets involved in proximity to the injury. As I mentioned before, the black letter law of this country that is established in the restatement of torts clearly says if there is a criminal intervention, one can still be held liable for negligence if they fail to perform their duty, even if in the chain of action of causation there is a criminal act. So this notion that we are charging these gun dealers and gun manufacturers with the crimes of another, a bad person or criminal, is without substance. What Senator Levin said so eloquently and others said so eloquently talking about his amendment, is this is about the responsibility of the manufacturer, the gun dealer, and the gun associations to fulfill their duties to the general public and to specific individuals who have been harmed: the duty to secure weapons, the duty to act reasonably, the duty to look beyond the superficial aspects of someone coming into a store. We have seen classic examples: The fellow who walks in with the girlfriend and picks out 12 weapons, gives her cash, she pays for it. It is so suspicious that the operator of the gun store calls ATF and says, well, I got the money, they got the guns, but watch out for them. That was the circumstance that led to a chain of causation to the serious wounding of two New Jersey police officers. That gun dealer had an obligation to avoid straw purchases. He did not even follow the standards of the industry in terms of being careful of selling multiple guns to some person under those circumstances. So it is not about the crimes of others being attributed to gun dealers and gun manufacturers. It is not about social conditions that are being excused by these suits. It is about whether an individual had a duty to another person who was injured and failed to carry out that duty. One of the major reasons we are here, taking very radical action to change 200 years of legal history in the United States, taking the radical action of going into 50 States and saying, We don't care about your laws--the General Assembly of Rhode Island, the General Assembly of North Carolina, of Alabama--we don't care about your laws, we don't care that for 200 years, you specified the standards for negligence in your State, we are changing them for these special people. We don't care that your courts should have the right to take the claims of your citizens who have been harmed. We don't care about that. And we are doing it for a very narrow, defined group of individuals. This is a radical departure from the standards we have adopted and abided by for 200 years. The pretext for all of this is that there is this huge crisis with respect to manufacturers that threatens their existence, that they are financially on the ropes, that these suits are numerous and literally driving them to bankruptcy. Where are the facts? The facts that we can establish from the public filings of certain companies suggest that there is no crisis. There is no crisis at all. This is a manufactured crisis. This is a pretext to do the bidding, I believe, of the gun lobby. If you look at the facts as reported, there is no financial crisis that is apparent. Yesterday, my colleague, the Senator from Idaho, read a letter from the president and chief executive officer of Smith & Wesson that talked about or tried to explain their filings with the Securities and Exchange Commission, their 10-Q filing, and concluded with a stirring passage about the necessity, the criticality of this legislation to Smith & Wesson. It gave the suggestion, of course, that my discussion of their financial reports was somehow inaccurate or incomplete. So I went back and I got their 10-Q report, which was filed on March 10, 2005, for the period January 31 to March 10. It was filed, let me say, March 10, 2005. They go on to describe these suits, as generally is done. They conclude: We monitor the status of known claims and the product liability accrual, which includes amounts for defense costs for asserted and unasserted claims. While it is difficult to forecast the outcome of these claims, we believe, after consultation with litigation counsel, it is uncertain whether the outcome of these claims will have a material adverse effect on our financial position, results of operations, or cash flows. They are not quite certain whether those cases will cripple them. They go on to say: We believe that we have provided adequate reserves for defense costs. They go on and say further: We do not anticipate material adverse judgments and intend to vigorously defend ourselves. In a sworn statement to the Securities and Exchange Commission, they say: We don't know if this is going to be critical to our financial status. In fact, we don't anticipate material adverse judgments. We don't think any of these cases will be resolved in a way that will negatively affect our position, and we will vigorously defend ourselves. They went on to say, and we said this before on the Senate floor: In the nine months ended January 31, 2005, we incurred $4,535 in defense costs, net of amounts receivable from insurance carriers, relative to product liability and municipal litigation. That is $4,500, basically, out-of-pocket costs they have received from reimbursements from insurance companies. That is the nature of insurance: You pay the premium; if something happens, you get reimbursed. During this period, we paid no settlement fees relative to product liability cases. As a result of our regular review of our product liability claims---- looking at these claims we talked about here as strangling their ability to be competitive and to survive---- we were able to reduce our reserves by $286,022 for the nine months ended January 31, 2005. This is such a perilous threat to a company like Smith & Wesson that they are actually reducing the reserves they have on hand to handle these claims. Again, this is not a crisis. Again, their own data suggest--this from their Web site. This is 2001. These are the industry municipal cases pending or on appeal: 32 and 10 in 2001; in 2002, 26 and 8; 2003, 20 and 5; 2004, 13 and 4; 2005, 4 industry municipal cases pending and 2 product liability cases pending against Smith & Wesson. The curve is going the wrong way for a crisis. It is going down: four, and two pending cases. It suggests that the courts are doing their job, that the present system we have in place is actually handling these cases pretty well. There is no flood of cases coming over the transom. In fact, this is exactly consistent with their reduction of the reserves for liability because it appears that these cases are dwindling, not increasing. It appears that the system is working pretty well right now. Yet we are here today debating legislation that will deny the rights of individual citizens to go to court, rights they have enjoyed for 200 years in this country, rights that stem not from the actions of criminal third parties but from the failure of the individual defendants to take appropriate action in their duty with respect to the general public and specific individuals. It is the same with respect to other companies for which we have public records. Many of these companies are privately held. Beretta USA is domiciled in the United States, but it is a subsidiary of an Italian corporation which is privately held, and they are not publicly reporting. But all of this suggests again--not only with Smith & Wesson but with Sturm, Ruger--that there is no material adverse impact reflected by these individuals in their reporting under the pain of penalty for perjury under the Securities and Exchange Commission. Also, there is a general record of claims and legal cases which goes to suggest that these suits are not an epidemic. As we have indicated before, from 1993 to 2003, 57 suits were filed against gun industry defendants out of an estimated 10 million tort suits. I am not good at math, but that is way below 1 percent. This is not an epidemic. This is not a crisis. Certainly this is not a crisis that is going to threaten our national security. We have heard claims that the gun industry is being forced to spend hundreds of millions of dollars. The alleged litigation costs have risen in $25 million increments. In fact, I think they have risen since we started this debate, from what I have heard, without any kind of factual data to support them. They are just claims that they are spending all of this money. In fact, if you look at these SEC reports, it hardly adds up to $200 million. Indeed, it seems, based on Smith & Wesson, that reflecting the declining cases they are actually reducing their reserves and potentially, hopefully, reducing what they have to pay out of pocket. But these estimates grow and grow and grow. In 2004, it was $150 million in July. In November 2004, other estimates, $175 million. Now it is up to $200 million. I think I heard in this debate $250 million. No substantiation, no documents, no data. This is not a crisis. Yet we have displaced the Defense bill to take up this legislation. We have displaced other legislation that could be extremely valuable in order to take up this legislation. Because there is no crisis----

Mr. REED. Mr. President, I commend Senator Kohl for this amendment. He has worked with so many of our colleagues to ensure that children are adequately protected. There are too many deaths each year of children because the weapons are unsecure. They are able to get access to them, and they are able to discharge them. There are accidental deaths. Sadly, there are too many childhood suicides that result from having access to weapons. The Kohl amendment is a practical and appropriate response to that by requiring the sale of a child safety lock along with the weapon. There is huge public support for this issue. Over 70 percent of Americans polled think this is an appropriate and necessary proposal. In fact, I believe 6 out of 10 gun owners similarly believe this is a sensible approach to dealing with the issue of the accidental death of children with firearms. We are here today to move forward on this amendment, to have a vote which is scheduled. I would hope, also, that we can move to other amendments so they could be offered for votes. Several of my colleagues have offered amendments. It is appropriate, since we have begun the process of debate and amendment and vote, to continue that process forward. I hope we can do that. I certainly commend Senator Kohl for his efforts over many years. As he rightfully points out, there was overwhelming support for this measure last year. More than 70 Senators supported it. I hope we see that same support this year. Certainly, the danger to children has not diminished from the last Congress. The practicality and efficacy of this approach continues to be compelling. I would hope we would have another strong vote in support of the amendment, as we go forward. I yield the floor.

Mr. REED. No. Go ahead.

Mr. REED. I thank the Senator from Illinois for his question. There were a series of extraordinarily important questions with respect to the quality of life for our soldiers and their families: childcare amendments, amendments with respect to veterans health care, amendments that applied not only to active-duty personnel but their dependents. We had passed legislation already, an amendment that would increase the number of up-armored HMMWVs we are providing to our soldiers. That stands in abeyance until we finish the legislation. There were important inducements for additional service and enlistment that are necessary to meet the growing and real crisis in recruiting military personnel. If you want to talk about a crisis, it is a crisis, the fact that our Army, despite efforts, has fallen short of the recruiting goal at a time when we need every person to fill out the demand for operations in Iraq and Afghanistan and around the world. It is extraordinarily serious. I don't know if I can find it, but I saw an editorial cartoon in a magazine, a newspaper, which had a picture of a humvee and three soldiers. The caption, if I recall it, is: Why don't we just take a 4-week recess during this difficult time and then return to this operation afterwards? Essentially, I think it captured the dilemma the soldiers are feeling right now. What are we doing? As the Senator previously indicated, in the Army Times, they wrote of this: Senate delays action on the defense bill. I ask unanimous consent to have two articles printed in the Record, one from the Hill and the other from the Army Times, which talk about this issue of leaving the Defense bill and also the impact on procurement of weapons because of this legislation.

Mr. REED. That is exactly right, in my reading of the legislation. There are certain jurisdictions that have specific laws with respect to background checks on daycare centers. The gun industry is virtually unregulated, which is a very important point here. There is very little regulation deliberately on the manufactured weapons, the standards. As you point out so often with respect to product safety, toy guns are regulated by the Consumer Product Safety Commission, real guns are unregulated in terms of their safety. So there is no legal--very little legal statutory requirement. So it depends upon claims of negligence to get at this harm and to redress the harm caused, and this bill essentially wipes out that civil liability under our court system.

Mr. REED. I think at a minimum it puzzles them why we would shift from their concerns, which are so central to our national security and so central to the families of America, to move to a bill that is so narrowly focused on a special interest group and does not help them one bit in terms of anything we might do on this bill. Perhaps it is summed up. I have located the cartoon. It is as I described before--a group of soldiers in a humvee, and the caption is: I move we adjourn for 5 weeks and take up this contentious issue after the summer recess. Frankly, no one in our military has the option of adjourning for 5 weeks to take up contentious issues after that time.

Mr. REED. The legislation generally bars all suits involving negligence and restricts the exemption to some categories of specific violations of Federal law which arguably, in your hypothetical, it would not reach. The only exception, to be fair to the legislation, that might allow someone to go to court under the concept of negligent entrustment, which as drafted in the legislation would say you have to suspect, know that the person would use the weapon illegally, and that person has to use the weapon. But most commonly what happens is there is a straw purchaser, so the negligent entrustment argument doesn't work because that weapon is not being used by that person; it is given to a third party. But I think the Senator's comment is exactly right. There are so many cases where this legislation has been carefully crafted to prevent people going to court, and the best examples are the ones of which we are already aware. The sniper case in Washington, DC, where a young teenager walked into a shop, shoplifted apparently a 3-foot assault weapon which was used to murder too many people here in the District of Columbia. That suit would be prevented by this legislation; in addition, the case of the straw purchaser and the police officer in New Jersey, prevented by this legislation. We have a case pending now where an individual, a young man, was killed by a weapon that was taken out of a factory, and the gun manufacturer would be exempt, immune from liability, even though he had no background checks on his workers who were criminals and drug addicts, he had no security devices and, in fact, missed any rudimentary standard of care that most reasonable people would say is associated with running a gun factory.

Mr. REED. Virtually no other. Comments were made on the floor with respect to legislation passed back in 1994 with respect to general aviation. I think it is important at this juncture to clarify that. There was very limited legislation that applied to general aviation aircraft, 18 years or older, in terms of liability because of the concern about the manufacturing base. But there is a distinct difference between this legislation and the General Aviation Revitalization Act of 1994, and it goes to the point we just discussed. There is no more highly regulated industry than the aviation industry. Every time an engine is worked on, there has to be a log entry made which is subject to the jurisdiction of the Federal Aviation Administration. It is the most detailed legislative scheme we have in place perhaps because the safety of the passengers, all of us, depends upon it. So giving a limited grant of immunity to an industry that is so highly regulated is quite different than telling an unregulated industry you have no liability. That is essentially what this bill does, with very minor exceptions; clearly, I think exceptions which were artfully crafted to avoid the cases that exist today.

Mr. REED. Mr. President, I will take a moment to talk about the bill.

Mr. REED. I would be happy to yield for a question.

Mr. REED. I think the Senator is right. The only exception that could be argued would, I believe, be the exception with respect to negligent entrustment. As I pointed out, that has been defined to mean that the individual who receives the weapon--you have to have also the suspicion that that person is going to use the firearm. In the classic case of a straw purchaser, they are the conduit to someone else----

Mr. REED. I am happy to yield.

Mr. REED. This dealer has sold more than 347 guns traced to crime; 271 of those guns had a short time to crime as defined by ATF--again short transit from the time it was sold to the crime scene. The guns were involved in at least 27 homicides, 46 assaults, 23 robberies, and 271 additional gun crimes. The dealer also sold at least 5,429 handguns in multiple sales. That is another possible important remedy, the issue of multiple sales. Anthony Garner was arrested for gunrunning after he bought 16 handguns from Breit & Johnson that were then sold to Chicago gang members. At least one of those guns was used in a gang-related killing. Andrew Young, age 19, was killed by Mario Ramos, a gang member with a gun from Breit & Johnson. The list goes on and on. We have these statistics. These are collected by the ATF. We know what's going on.

Mr. REED. The Senator asks an important question. According to Federal data from the year 2000, 1.2 percent of dealers accounted for 57 percent of all guns recovered in criminal investigations--1.2 percent of dealers, 57 percent of the guns recovered from criminal investigation. In fact, the national crime tracing data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco and Firearms and Explosives has a virtual scorecard on these egregious offerings. Badger Outdoors, Inc., in West Milwaukee, WI, the dealer sold more than 554 guns traced to crimes, 475 of these guns had a ``short time to crime,'' as defined by ATF; that is, almost immediately they were in the hands of someone and had some type of criminal activity. I could go on. Well, for the benefit of the Senator, Realco Guns in Forestville, MD; Southern Police Equipment in Richmond, VA; Atlanta Gun and Tackle in Bedford Heights, OH; Colosimo's Inc, in Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN.