Jack Reed

Mr. REED

Mr. REED. Elmwood Park, IL; Breit & Johnson Sporting Goods in Elmwood Park, IL.

Mr. REED. The Senator's point is extremely well taken. I think there should be at least that exception. I would argue, frankly, that the bill could be further modified to essentially allow individuals who have been harmed--move away from the issue of municipal suits but that is exactly the political implication--to let those suits survive. In fact, as Senator Levin urged, increase the standard from negligence to gross negligence, so further undercutting the argument about frivolous junk lawsuits. That would be a broader remedy, but your proposal is very wise. Let me give you an example of that store in Elmwood Park, IL, which I presume is close to Chicago.

Mr. REED. The Senator raises an excellent point. I phrase it slightly differently, but I reach the same conclusion. If gun dealers--who now have the threat of a civil suit if there has been negligence--are so cavalier in their attitude about guns, selling them to criminals, to straw purchasers, what happens when they are fully immunized or virtually immunized from any type of liability? What happens when they know that no family is going to come in and say, My son or daughter died because of your negligence, and we are going to see if we can take you to court and get something back--we will never get the child back--but something back. What about the surviving spouse or children who need something to maintain the quality of their life because they have lost their breadwinner? There is the case of Conrad Johnson, killed by one of the DC snipers. Those cases would be barred by this legislation. It is not that the individuals, families, and the survivors are denied their day in court, but any incentive to be responsible, to be scrupulous, to look harder to determine whether that person is buying the weapon at the direction of another, as a straw purchaser, is virtually eliminated. The consequences are going to be much worse. These dealers will be more flagrant, more blatant, less restrained. It is hard to see how they could be more blatant than they are today.

Mr. REED. The Senator is again accurate. Unless Senator Kennedy's amendment is allowed to be voted upon, there is no prohibition against looking at the person's picture on the FBI's Most Wanted list, looking at the person and saying: Have a nice day. Take the gun. Again, one could argue that if that person actually uses the weapon, it might be negligence, but if he or she is a straw purchaser or buying lots of weapons to pass out, they would escape liability.

Mr. REED. Will the Senator yield?

Mr. REED. I don't see that. In fact, I don't see that as the purpose of this legislation. This is not about preventing criminals from getting weapons. It is preventing victims of gun violence from getting their day in court.

Mr. REED. I thank the Senator for his questions. The line of questioning that the Senator from Illinois has opened raises the issue: What are the exceptions? How can someone get to court if they have been harmed? Since we have had a robust discussion, and I see the Senator from Ohio in the Senate, I yield the floor.

Mr. REED. Mr. President, I appreciate the cooperation and collaboration. I am pleased also that you are looking closely at these amendments. My position is simple. I believe the amendments are relevant. I hope we can have votes on all of them. I particularly think Senator Warner's amendment is relevant, pertinent, and important. I hope he can offer that. But it is my hope that we can bring all of the pertinent amendments up, with appropriate timing, and conclude. As we stand now, as the rules require, there will be a cloture vote sometime tomorrow. I think I understand also that after that cloture vote, moving from the gun liability bill to any of the other provisions--energy or the Transportation bill--would require unanimous consent. That is another factor that should be considered. So I hope we can resolve this this evening.

Mr. REED. If I may say, my understanding is that once cloture is invoked, to move off the 30 hours of cloture cannot be done by a privileged motion, but by unanimous consent.

Mr. REED. I say to the Senator from Virginia, we think his amendment is very commendable, and we would like to see it brought forward for debate and a vote. I have made that point privately, and I make it now publicly. We think it is, as the Senator says, germane and relevant. I think the Senator is owed a vote, and I would like to see it happen. Unfortunately, we are having difficulties clearing any amendments, including the Senator's, for voting on the floor.

Mr. REED. I have asked that that amendment be considered. We are waiting. We were not impatient, but there is a limit to patience. I would point out, too, that there will be an attempt this evening to move to other matters such as CAFTA and the Energy bill which will take away time to debate a vote on the pending gun liability bill. I just think we have wasted too much time, that we should establish some rules with respect to the amendments, vote on those amendments and move forward towards a cloture vote.

Mr. REED. Middleman. So that the argument made by lawyers would say negligent entrustment, saying they gave it to inflict harm. Therefore, this very narrowly defined exception would not apply. Generally, the case I believe would be thrown out of court.

Mr. REED

Mr. REED. Will the Senator yield?

Mr. REED. Reserving my right to object--and I will not object, obviously--I know the Senator is looking carefully at these amendments. I make a point, I have served in the House of Representatives where there is a Rules Committee that looks at every amendment and decides what is coming to the floor. In the Senate that was never the practice. We are trying to be extremely cooperative and transparent in what we are doing, going, we hope, the extra mile. I hope it is reciprocated so we can get to amendments and get to votes. That is how in the Senate amendments are decided, not by a committee putting them up or down for consideration, but by Members voting. I do not object.

Mr. REED. For the record, there are three amendments we have attempted to offer. One is an amendment authored by Senator Kohl, which I offered on child safety locks. The floor manager and I have discussed this amendment. There are some technical concerns about it. But that is one. The second is an amendment Senator Corzine would like to offer about exempting law enforcement officers from the provisions of the bill. The third is an amendment Senator Lautenberg would like to offer with respect to the denial of immunity when the victims are children. These are the three amendments. But we are not seeking any extraordinary, provocative amendments. We are trying to get amendments up that are relevant to this discussion about gun safety. I honestly believe that 3 hours--my amendment is going to take 3 hours--and at least several hours for the other amendments will be sufficient time to review this. I am not going to make a formal parliamentary inquiry now, but I am not under the impression, under the rules of the Senate, that a Senator must get the permission of any other Senator to offer an amendment. If he has the floor, and particularly before cloture, the amendment can be offered. I will seek to clarify that. I do not want to be in error on that point. But we have gone to great lengths to be cooperative, collegial, to be able to offer these amendments, and to this point we have got this sort of silence--or not silence, but simply: We are looking at it, we are looking at it, we are looking at it. I do not think we can continue in this posture indefinitely. I thank the Democratic leader.

Mr. REED. I am. Go ahead.

Mr. REED. I will bring up the amendment and make brief remarks.

Mr. REED. I thank the Chair. Very briefly, this amendment is a very important one related to safety for children with respect to firearms. There are more than 10,000 accidental shootings a year in this country, and many of these shootings result in the senseless deaths of children, and many of those accidental deaths do not fully take into account the violence because, in addition to that, there are many young people who tragically use a firearm to take their own lives. So we are looking at a situation where nearly 3,000 children, young people, die each year from gun-related injuries. And this recitation of numbers is not only grim but to all of us, I believe, unacceptable and particularly painful to families who must bear this terrible loss. This legislation is simple, straightforward, and effective. I must commend Senator Kohl for his authorship and for his persistence in pursuing this legislation. It mandates that a child safety lock device or trigger lock be sold with every handgun. Most locks resemble a padlock that locks around the gun trigger and immobilizes the trigger, preventing it from being used. These and other locks can be purchased for every gun for less than $10 and thus used by thousands of gun owners to protect their firearms from unauthorized use. This approach is supported by a huge number of individuals. In fact, this Senate has gone on record previously overwhelmingly supporting this amendment. Polls have shown that 73 percent of the American public supports this amendment, including 6 out of 10 gun owners. This legislation is not only well meaning and well intended, but it could be very effective if we adopt it. I am pleased to see we are now moving to consider this amendment. I am delighted that tomorrow morning we will get a chance for further debate and a vote on this amendment. I yield my time.

Mr. REED. Mr. President, I ask unanimous consent to lay aside the pending amendment and send an amendment to the desk.

Mr. REED. Mr. President, I think the Senator from Idaho makes it very clear what seems to be going on now. I heard a few moments ago the majority leader's response to Senator Kennedy, saying there would be an opportunity to present amendments, to debate this bill. I would also note that prior to any other action, cloture was filed on this bill.

Mr. REED. I would be happy to yield.

Mr. REED. I appreciate that. I do. But the point is we are taking a legal theory of strict liability, which they are upset about, obviously, and concerned about, but it does not translate to this bill. None of these cases I talked about--Lemongello or the case with respect to Guzman--is arguing these manufacturers or sellers are strictly liable. They are saying, essentially--now there might be other cases-- but they are saying, essentially, they had a duty, they were negligent. This legislation we are debating today would wipe away their rights to make a negligence claim. So I agree entirely with the letter in terms of its accuracy. That is what they are talking about. They are concerned about it. Frankly, if I were the general counsel of Beretta, I would be concerned about it. It might not move me to do the same thing they are suggesting. But we have to be very clear about this legislation, which goes way beyond the strict liability. Again, if we were talking about limiting strict liability suits, this would be an entirely different debate. I do not think I would necessarily agree, but certainly I would be looking at an almost entirely different subject matter. I thank the Senator for being extremely kind in yielding me time and also being extremely accurate in summarizing my views.

Mr. REED. If I may reclaim my time----

Mr. REED. Mr. President, I will call up amendment 1626 on behalf of Senator Kohl.

Mr. REED

Mr. REED. Mr. President, I commend the Senator from Vermont for his eloquent remarks. I will talk about the legislation before us, the gun liability legislation. The legislation before us cannot be all things. It cannot be an effective barrier against litigation to protect the gun industry and, at the same time, be a way to protect legitimate rights of citizens who have been injured or killed by guns. It is not both; it is one of them. It is carefully, cleverly worded legislation to immunize the entire gun industry from virtually any type of liability. There are, perhaps, minor exceptions, but the most important, compelling cases we have seen in recent years--the case of the DC snipers, the case of Police Officers Lamongello and McGuire in New Jersey, and the pending case of Kahr Arms in Worcester, MA--would be barred. I don't think that is a mere incidental coincidence. They will be deliberately barred. Thankfully, the first two cases were settled after the Senate rejected this legislation last year. The families of the victims of the Washington area snipers had their day in court and were able to go forward, and a settlement was reached. Officers Lamongello and McGuire similarly had the opportunity to press their cases, and a settlement was reached, but the Kahr Arms case is still pending in court. One of the sweeping aspects of this legislation is that it does not merely attempt to set the rules prospectively, as we go forward, to say these cases would not be heard by a court in the U.S.; it literally walks in and tells people who have filed cases--cases that have survived motions for summary judgment, cases which judges, looking at the facts and circumstances and the law, have said at least can go forward to trial and jury--it would take those cases and throw them out of State courts and out of Federal courts if they have been filed. Let's take a look at the Kahr Arms case. It is the case of Guzman v. Kahr Arms. It was filed under the wife's name--Hernandez, I believe. It involves Danny Guzman and Kahr Arms. A lawsuit was filed by the family of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded with a 9 mm handgun that was stolen from the Kahr plant by a drug- addicted employee who had a criminal record. The manufacturer, Kahr Arms, operated the factory without basic security measures to protect against theft, such as metal detectors, security mirrors, or security guards. Guns were routinely taken from the factory by felons the company had hired without conducting background checks. The gun used to kill Danny Guzman was one of several removed by Kahr Arms employees before serial numbers had even been stamped on them, rendering them virtually untraceable. Some point has been made about the fact that it is illegal to erase serial numbers. These people were able to get the weapons before serial numbers were imprinted upon the weapons, so that law would not apply at all. The guns were then resold to criminals in exchange for money and drugs. The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting. Thank goodness that 4-year-old didn't decide to test the weapon himself or herself. Had Kahr Arms performed background tests or drug tests on prospective employees, or secured its facility to prevent theft, Danny Guzman might be alive today. A Massachusetts court held that the suit states a valid legal claim for negligence, but this bill would throw the case out of court, denying Danny's family their day in court. Again, this is the Congress reaching into a State court and telling that judge, we don't care what your law says, we don't care what 200 years of legal precedent in Massachusetts or any other State in the country amounts to. This suit should be stricken, taken out, thrown out. This legislation is sweeping and it is unprecedented. It deals a serious blow to citizens throughout this country, while enhancing dramatically the legal protections for the gun industry. Now, the bill's proponents repeatedly say you cannot hold someone responsible for the criminal actions of another--as my colleagues have said, the intervening criminal actions of another. First of all, that is not what this case is about. And, frankly, that is not the law. I am surprised that my colleagues who are attorneys would come down and make such an erroneous statement about the law. A memorandum by a professor at the University of Michigan Law School points out that in the restatement of torts--this is as in all law-- this is the basic summary of the status of the law in the U.S. with respect to torts. Section 449: If the likelihood that a third person may act in a particular manner is a hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal, does not prevent the actor from being liable from harm caused thereby. This is black letter law. There is no special exemption for the criminal act of another if you fail in your duty to the public. And the duty here with respect to Kahr Arms is to secure dangerous weapons and to have employees who are responsible. That is what they are being sued about. They have a duty under the law for the whole community to act in a way that will not unnecessarily cause harm to others. What should be decided in a court is whether they lived up to that duty. If this legislation passes, they will be denied the opportunity to determine whether their duty to the community was upheld. This is about responsibility for their actions--in this case, the actions of Kahr Arms Company. In the case of gun dealers, it is the requirement and the obligation to take precautions, to use the standard of care a businessperson would use in the conduct of that business--the standard of care any businessperson would use. Certainly, this standard of care should apply to those who manufacture weapons, who sell weapons, and the trade associations associated with them. The allegation in all these cases is that they failed to do that--not that they were unwitting, incidental victims of a criminal mind, but that they failed in their duty. Bull's Eye Shooter Supply in Washington State, for example, who supplied the Washington snipers with their sniper weapon, could not account for 238 weapons. They had no idea where they were. The evidence was overwhelming that there was no standard of adequate care, no effective controls on inventory. The owner of that gun store claimed a teenager--he didn't realize it at the time--must have walked in and shoplifted an automatic weapon, a 3-foot- long sniper weapon, and carried it away, undetected, during business hours. In fact, this was missing without his knowledge for weeks and months. That is not the standard of care the community should expect from anyone engaged in this type of business. Is that the standard of care? No, it is not the standard we expect. It is particularly not the standard when you are dealing with weapons that can kill people. I would think most Americans on the streets, if you asked them, Would you say gun dealers and manufacturers should be a little more cautious than people who make other items, I think the answer would be, invariably: Yes, of course. These are inherently dangerous products. So this is not about punishing people for the criminal activities of others. It is about holding individuals and corporations up to the standard of conduct we expect from everybody. There are various examples. Some say, my goodness, if a store sells someone a knife that is then used in a crime, they should not be responsible. Others have talked about car dealers. But if you have the car dealer who leaves the keys in a car, and they have no security, and a teenager gets into that car and harms someone, certainly I think the parents of that individual harmed or that individual themselves could go to court and say this dealer didn't meet the rational standard of care of those in the automobile industry. They have to secure the car and provide security. They cannot make them so easily available that a young person would take the car and get into an accident. That applies to automobile dealers. But if this legislation passes, common sense doesn't apply to the gun industry in this country. In fact, this is a license for irresponsibility we are considering today. Whatever precautions they are taking today, because they might anticipate this type of danger and anticipate, perhaps, litigation, there is no incentive after today to take those rudimentary precautions. There will be a race to the bottom, to the worst standards of the industry, to the worst operations of the worst operators. With this bill, we are saying, in addition to your Federal firearms license, you get another license; you can be irresponsible. That is not to suggest all dealers and manufacturers are irresponsible. But some are. Those very few have landed in court--very few. We talk about junk lawsuits. It is not a junk lawsuit when your husband has been shot by a sniper while sitting in a bus waiting to go to work, to drive his bus, to service this community, to pick people up and get them to work. I don't think the family of Conrad Johnson volunteered to be part of a social experiment. I think any suggestion to that effect is offensive. They have been harmed grievously. A wife lost her husband. Children have lost their father. The livelihood of this family is in question. They seek redress, as anybody would. That is not a junk lawsuit. On the contrary, these families have been harmed, in part, because of the negligence of someone, and that someone should pay. The suggestion that this legislation is in response to some avalanche of lawsuits that is devastating the firearms industry is without foundation. The industry is so stressed that they have managed to raise, preemptively, $100 million to protect themselves--not just in terms of going to court and paying claims, but also in terms of controlling documents and communications between themselves and their attorneys, so they can claim the benefits of the law, attorney-client privilege, at the same time they are trying to take away the benefits of the law from average citizens who have been harmed by guns. That is a stunning hypocrisy. This is not an industry that seems to be without resources. As my colleagues have said, and as I have said, in some of these annual reports to the SEC, companies have said there were adverse effects because of these suits, but ``don't worry, stockholders, we are not losing any money.'' One company reported out-of-pocket costs of $4,500 in a period of less than a year for this type of litigation--$4,500. For that, we are here on this floor to take away rights of Americans they have enjoyed for over 200 years to go to court, to allege they have been harmed by a negligent industry, and let a jury of their peers decide it. We are not facing a situation where we would be without gun manufacturers because of these lawsuits. It is outlandish to suggest our national security is being jeopardized because we cannot find people in the United States who produce firearms, and that American companies cannot stand up to this torrent of lawsuits. And the suggestion that we have to turn to firearms suppliers for our military is rather odd. Indeed, today, many, if not most, of the suppliers for national defense are the subsidiaries of foreign companies. Browning, Winchester, and Fabrique Nationale, which supplies M-16 A-4 assault rifles and the M-2 49G squad automatic weapons are subsidiaries of Herstal, a Belgian firm. The Pentagon contracted with H&K, a German firm, to help develop the next generation of weapons. Clearly, the Pentagon doesn't believe American manufacturers are so distressed that they have to go overseas. They are going overseas because they are looking for what they consider to be the best product and best design. They are dealing with subsidiaries of foreign companies. The suggestion, of course, that these suits are driving America and the Pentagon away from acquiring American-made weapons is ludicrous. It is not about preserving our defense. It has nothing to do with our defense. The Pentagon is making decisions to buy foreign weapons because they believe they are better weapons. This is about protecting one industry from the legal responsibility to exercise caution, a responsibility every individual must exercise. All industries must do that or, indeed, the vast majority. This is not about protecting the integrity of the courts. What does it say to the integrity of the courts of West Virginia when a judge found that a suit brought by two brave New Jersey police officers should proceed, when we say: No, you are wrong, throw that case out. What will it say to Massachusetts courts if we pass this legislation when that case against Kahr Arms is thrown out the door? It will say we are meddling in the affairs of the courts in an unprecedented fashion. Thankfully, Officers Lemongello and McGuire were able to settle their legitimate case, but there are cases pending, and those cases have to be dealt with. I urge my colleagues to reject this gun industry immunity bill. I want to make one other point before I yield the floor. Much has been made of a letter from the Beretta Company about the danger of an avalanche of lawsuits. If you look closely, what has happened is the District of Columbia, their duly constituted legislative body, passed a strict liability bill. The courts have upheld that. They say it is appropriate. That is the American system, legislators pass bills. That is what we are trying to do today. That is a strict liability bill, and that may raise concerns with the gun industry. This bill goes way beyond strict liability. It says simple negligence is out the door, and to conflate those two arguments does a great disservice to the accuracy of the truth of this debate. Mr. President, I believe my time has expired. I yield the floor.