Protection of Lawful Commerce in Arms Act-Motion to Proceed

PROTECTION OF LAWFUL COMMERCE IN ARMS ACT-MOTION TO PROCEED

Mr. DeWINE. Mr. President, I have the utmost respect for my colleague from Alabama who just spoke most eloquently, and I certainly have respect for my friend from Idaho who has brought this bill to the floor. I certainly have great respect for the many firearms dealers who are legitimate, honest, and hard working, and manufacturers around this country, but I must oppose this bill.

I oppose this bill because it denies certain victims in this country their day in court. It singles out one particular group of victims and treats them differently than all other victims in this country. It sets them apart. It sets them aside, and it treats them differently. It denies them their access to court.

It does not put a limit on their lawsuit. It does not put on a cap. It is not what we were talking about yesterday. Rather, it says they are barred from coming to court.

It is unprecedented what this Senate, if I can count the votes correctly, is about to do. This bill shields a certain group of defendants. It establishes an immunity. This bill would overturn over 200 years of civil law, 200 years of tort law, 200 years of common law. It would overturn over 200 years of civil law in this country and fundamentally change our justice system. It would, in essence, turn the civil justice system and our tort law on its head. It would do this by denying one group of our citizens access to the court system.

Most fundamentally, the problem with this bill is it sets a precedent. It will not affect that many victims, that is true, but the real reason to oppose this bill is for the precedent it sets, because if we do it for these victims, what is to stop us from doing it for other victims? And if we don't care about these victims, will we care about other victims in the future, and will we do it to other victims who maybe some of us care about?

Civil liability law is about encouraging people and industries to take responsibility for their actions, and it is also about protecting victims. It is about deterring irresponsible behavior by making sure there are incentives in place to encourage people to behave responsibly. It is about preventing bad conduct and holding people accountable under our common law.

It is not and should not be about undercutting the ability of innocent victims to hold irresponsible people accountable for wrongful and negligent actions. This bill, unfortunately, does just that. It undercuts the ability of innocent victims to hold irresponsible individuals accountable for harmful and negligent actions.

The fact is, this bill cuts to the core of civil liability law and would essentially gut it. As my colleagues know, right now under current law throughout this country, to prove liability in a civil suit, the plaintiff only needs to prove the defendant acted in an unreasonable manner, if the defendant failed to meet his duty to act in a responsible fashion. That is basic common law, basic civil law, that his or her failure led to harm to the victim. Nothing more than that is required.

We do not normally require a victim to prove that the defendant is guilty of a violation of the law, but this bill, however, provides that a victim cannot sue a gun dealer for damages resulting from illegal actions of a third party without also showing that a dealer is guilty of a violation of the law. So that in this bill, in effect, for a plaintiff to prevail in lawsuit and recover damages, he or she would not only need to prove that a gun dealer acted with negligence, that the dealer was irresponsible, but would also have to prove that the gun dealer also broke the law. In other words, the plaintiff would have to prove the gun dealer violated a statute or was guilty of a crime.

There is one exception to this general rule built into this statute we are debating, and that is the so-called negligent entrustment exception. For the most part, this bill requires a defendant violate a statute before he is liable. We do not require this in any other place in our law. In civil law, sometimes it happens when you prove negligence, the defendant did violate a statute, but that is not a requirement. That is not something in a civil suit you have to prove.

When you study law, one of the first things you learn is the difference between civil law and criminal law, and that someone can be liable in civil law to someone else and have to pay monetary damages and it not be a crime. That is a basic concept.

What we are saying in this statute is, under these circumstances, with an irresponsible gun dealer, that the plaintiff would have to prove that the irresponsible gun dealer violated a criminal law. We don't do that anywhere else in our law. Why do we want to do it in this case? Why that special protection in this one case?

If those who support this bill think that is such a great idea that we want to build this impediment into this law or the requirement into our civil law that you have to violate criminal law before you can sue someone, if that is such a great idea, let's just pass that law for everything. So in any civil suit in this country, you would have to find a violation of criminal law. I don't think we want to do that.

If it is good for this victim, why is it not good for everything? Obviously, it is not. Obviously, we are not going to do that. I do not see anybody suggesting that.

Clearly, this bill would make a major change in traditional liability law and is something we should more thoroughly consider and debate before we move toward a vote. Why is there such a rush to pass this legislation? This is legislation that I might point out never had a hearing. No witnesses were called. No one came in. Yet we are here on the Senate floor today. No discussion about this. Why is there this rush to bring this bill to the Senate floor? Why the rush to judgment?

I have two thoughts. I guess the main reason we are here is because there are the votes here to do it. There is the power to pass this bill. When there are the votes, it can be done, and I can count. I know which way this vote is going to come out. There are the votes to pass it. So when there are the votes, I guess the job can get done. But that does not make it right.

I ask my colleagues who have cosponsored this bill or are thinking about voting for it to think one more time, to think about the precedent that is being set. Yes, undoubtedly there are frivolous lawsuits that are being filed against this industry. There is no doubt about that. But there are legitimate victims who when this legislation is passed will not be able to file their lawsuits.

Why not trust the good judges we trust in every other civil suit in this country to make the decision to throw out those frivolous lawsuits? There are frivolous lawsuits filed in this country every day in all kinds of cases, and we trust the good men and women, the judges who sit on our benches, to get rid of those cases.

By and large, they do a pretty good job kicking them out of court. Why penalize the people who might have a legitimate case and kick them out and deny them, in fact, the opportunity to ever get to court at all?

The precedent is what I worry about. I worry about the victims in this case, but I worry about the precedent because if we, who have the votes to do this today to this group of victims, say we are going to do it because we have the votes to do it, we have the power, whether it is because this lobby is more powerful for whatever reason, what about when the next lobby comes along and they happen to have the votes? Maybe it is a set of victims you worry about or you care about who will be blocked from coming to the courthouse and filing their case. What if it is your child, your mother, your father, your wife, or your husband, and they happen to be among a group of victims who some lobby has put together enough votes to convince Congress to deny them the access to come to court? Their day may come. So, yes, I worry about the victims we are going to disenfranchise and block from coming to the courthouse by this bill. But more than that I worry about the precedent we are setting by this bill.

I worry about the day in the future when another lobby group, another Congress, has put together enough votes to come to this floor to deny another set of victims the right to have access to the courthouse. I think that is what should bother everybody else in this Senate.

Let me make a prediction about this group of victims. Yes, the passage of this bill will get rid of some frivolous lawsuits. There will be lawsuits that will never be filed because of this bill, no doubt about it. But let me make a prediction to everyone who is thinking about voting for this bill. Mark my words, if this bill passes, in the future there will be a case or cases that will be so egregious and so bad that when they are read about and it is found out that that victim could not file a lawsuit and could not file that lawsuit because this Senate voted not to allow that victim to file that lawsuit, it will be so bad, it will turn one's stomach. Mark my words, that will happen if we pass this legislation.

A second reason which has not been stated or discussed as to why there is such a rush to judgment and why some people are in such a big hurry to get this bill passed: We are having a great increase in crime technology. One of the great things that has happened in the last few years is our ability to trace guns and ballistics. We are putting great systems together in this country, and many of us in the Senate have worked hard to do that. We have the ability in law enforcement to trace these guns better today.

I think some of the irresponsible-notice I say "irresponsible"-gun dealers are worried about that because they know their days are numbered. They know when they ship out all of these guns, put them out on the market, guns that are just getting by today, they know they are going to be able to be better traced and they know they are going to be more liable and we are going to have the ability to trace them.

I believe the passage of this legislation will be more damaging in the future than it is even now. As ballistics technology improves, law enforcement will be better able to find the original source of crime guns, and that oftentimes would be back to a dealer who should not have sold the weapon in the first place. To the extent that we immunize these negligent dealers now, we will be decreasing their incentive to act responsibly and therefore deny their victims their day in court.

There is another aspect about this bill that has not been talked about a lot, and that is the fact that it is retroactive. How dare us in the Congress come to the Senate floor and wipe out every lawsuit that has been filed in this country that would come within the parameters of this bill. How arrogant of us to do that. In this Congress, we have the arrogance to come to the floor and pass legislation that wipes every case out in every State in the Union where there is a lawsuit pending. Did we really get elected to the Senate to do that? That is what this bill does. It will kick people out of court. It would not just bar people from coming to the courthouse. That is not enough. No, what this bill does is kick people out who are already in court. It kicks out people on whom judges have already ruled summary judgments, motions to dismiss, and have already made decisions that the case is at least valid enough to go forward and to go to trial. We are saying, oh, no, judge, we are now going to kick that case out of court and take it away from you and throw that person out of court. To me, if we do that, it would be the height of arrogance. I think that is wrong.

It is not my job to judge these cases. It is not my job to determine whether one of these cases should proceed or should not, or determine whether someone is negligent or not negligent. But I don't think, on the other hand, it is my job to say someone should not have the right to go to court and present that to a judge and ultimately, in most cases, to present that to a jury. That is fundamentally the American way.

Let me talk about a couple of cases. We don't need to look too far to find legitimate cases that would be dismissed if this bill were to become law. Everyone remembers all too well the tragedies of the DC sniper cases. Some of the victims of the DC snipers are suing the Washington State gun retailer known as Bull's Eye Shooter Supply for allowing John Malvo to walk off unnoticed with a 3-foot semiautomatic assault rifle. In fact, there were allegations that Bull's Eye not only failed to report the missing assault rifle, this particular missing assault rifle, but also failed to report over 230 other missing firearms because Bull's Eye was never aware that over 230 guns were missing, in total. That is absolutely unbelievable.

It is, of course, totally unacceptable for a firearm dealer, a retailer, to so poorly monitor and protect its stock. If these allegations are proven true-again, I don't know if they are true-then Bull's Eye should be held accountable for the negligent fashion in which it handled these weapons. Under the provisions of this bill, however, such behavior would be protected from private lawsuits. We would in effect be saying it is OK to allow unknown people-without, of course, background checks-to walk off your premises with hundreds of guns, be they criminals, terrorists, or in this case an underage serial killer.

There is another case in Worchester, MA. This bill would not only prevent recovery for the victims of the DC sniper, but the family of a young man killed in Worcester, MA, by the name of Danny Guzman would also be barred from recovering for the negligence that caused his death. In that case, Danny Guzman was shot and killed with a gun taken from a gun maker by one of his own employees. The employee had a significant record of violence and drug abuse but was able to steal the gun because apparently the gun maker allowed this criminal free access to his guns without any legitimate check of his background and also failed to implement effective security procedures that would have prevented the theft. Indeed, this gun maker could not account for at least 50 of his firearms. If this bill were to pass, Danny's family would be barred from continuing their suit against the gun maker for negligence in completely failing to screen its employees or secure its facilities to prevent repeated thefts of guns.

Let me talk about another pending case-again, I emphasize, this is a pending case-that would be affected by this bill. In this case, a couple entered a gun shop. This was referred to by my colleague from California a few minutes ago. A couple entered a gun shop. The man identified several weapons he was interested in purchasing. The woman he was with was not involved in the discussions between the man and gun shop owner and clearly didn't know much at all about guns. Then she purchased these guns and she paid cash. She paid cash for them.

The man in the gun shop, because he was a convicted felon, was prohibited, of course, from purchasing guns. The woman, however, was allowed to buy them on his behalf. The man then illegally sold the guns on the black market. One of these guns was used to shoot at least one police officer.

Clearly the gun shop owner should have known what was going on. The woman, while technically the purchaser, obviously was merely carrying out the wishes of a convicted felon. Therefore, the owner should never have sold her the guns in the first place. That would appear at least to be negligence. Obviously the criminal who shot the police officer should go to jail. But the dealer who negligently supplied that gun to the criminal should be civilly liable for his negligence as well. However, if this bill becomes law, it is likely the gun shop owner will be immune from liability.

As I mentioned earlier, there is a possible exception written into the law known as negligent entrustment, that might arguably, in this case, allow the lawsuit to go forward. We don't know. But many courts have construed that exception in the past narrowly under the common law, so it is a close call in a case such as this. Candidly, though, why in the world would we even want to take a chance this sort of irresponsible behavior might be immune from liability?

The point is, we can argue these cases. I know some of my colleagues might come to the floor and say under our bill maybe these cases could proceed. Maybe they could proceed. The point is, Why take a chance? Why take a chance? I would argue the three examples I have given. This bill could stop these cases cold in their tracks, and in each one of the cases I have cited, we have lawyers we could bring in, if we could get a hearing, who would swear under oath these cases, in their legal opinion, would be stopped by this bill. We could debate that. But the point is, why take the chance? Why pass a bill that would create that kind of legal impediment to people proceeding?

Again, we get to the point I raised earlier, and that is the inequity, the inequality of creating two classes of victims in this country. Other industries face legal challenges. Other industries have had lawsuits filed against them they don't like. Other industries face suits that in their eyes many times are frivolous and they have cases thrown out of court. Other industries are involved in cases where many people die. We understand that. But we don't grant this kind of immunity from civil liability.

For example, the auto industry. There are 42,000 or 43,000 Americans who die in car accidents every single year. We wouldn't think of coming to the floor and granting any kind of immunity like this for the auto industry, would we? No, we wouldn't. We wouldn't think of that for the world. We can each come up with our own example.

But here we are today picking one industry for no reason. We all know what the truth is, for no other reason than that they have simply put together the votes to do it. They are here and they have the votes. If I count correctly, they are probably going to get this passed. But that doesn't make it right. Victims are going to suffer and there will be victims in the future who will be denied their opportunity to go to court.

It is wrong. I support the second amendment. I support individuals' rights to own guns. I support gun manufacturers. I support legitimate gun dealers. But this is wrong; it is unfair. It is unfair to victims. But more important than that, it is a horrible precedent.

If we do it this one time, what is to stop a future Congress, where the votes are maybe configured differently, from saying, oh, there is another group of victims and we are not going to protect them. We are not going to protect them.

If we deny this group of victims their rights, what is to stop a future Congress from denying another group of victims their rights?

Let us think about that before we cast our vote. I thank the Chair. I yield the floor.