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Old 04-21-2003, 08:42 AM   #1
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A First - Gun Maker & Dealers EXEMPT

This was in the NYT yesterday. I certainly hope it doesn't pass the senate. Every manufacturer and dealer needs to be held accountable for misdeeds. This stinks of pandering to campaign favors.

http://www.nytimes.com/2003/04/21/politics/21GUNS.html

Bill to Bar Suits Against Gun Industry Stuns Crime Victims
By FOX BUTTERFIELD


ASHINGTON, April 17 Conrad Johnson, a bus driver in Montgomery County, Md., was standing on the top step of his bus last Oct. 22, getting ready for his morning route, when he was shot once in the back and killed.

For Mr. Johnson's wife, Denise, it was an incomprehensible act. Now she is confronting another action that she says is nearly as baffling.

Mrs. Johnson has filed a lawsuit against the gun shop, Bull's Eye Shooter Supply in Tacoma, Wash., that supplied the gun, a Bushmaster rifle, to one of two men charged in the sniper attacks that killed her husband and nine others last fall. She has also sued the rifle's manufacturer. But last week the House of Representatives, at the urging of the National Rifle Association, passed a bill granting the gun industry nationwide immunity from virtually all lawsuits. The Senate is expected to take up the bill after the Easter recess.

So Mrs. Johnson is hurriedly trying to turn herself into a lobbyist, going to news conferences in the Capitol and working Senate offices to tell her story.

"When I heard that Congress is seriously considering giving gun dealers special protection from suits like mine, I figured this had to be some kind of bad dream," Mrs. Johnson said in an interview, after attending a news conference with Senator Frank R. Lautenberg, Democrat of New Jersey. "I'm appalled and outraged that Congress can take away my rights as an American to have my day in court."

The suit by Mrs. Johnson, which is likely to be joined by seven other victims or families of victims of the Washington-area sniper attacks, is one of many suits that would be stopped if the bill passes the Senate and is signed into law by President Bush. The bill would make gun dealers and gunmakers the only industry in the nation exempt from lawsuits.

Lawrence G. Keane, the general counsel of the National Shooting Sports Foundation, the gun industry trade association, said the legislation was needed to "prevent frivolous, politically motivated lawsuits" that may "bankrupt responsible companies by blaming them for the actions of criminals."

The industry is facing suits by almost 30 cities and counties, including ones by Cleveland and Cincinnati that judges have ruled can go to trial, and others by Chicago, Detroit, Newark and New York at various stages in proceedings.

There is also a suit by the National Association for the Advancement of Colored People that is being tried in Federal District Court in Brooklyn. The N.A.A.C.P. has accused gunmakers and dealers of negligently helping supply criminals with guns in a way that disproportionately harms poor African-Americans.

There are also many suits by individuals, including one by two New Jersey police officers, David Lemongello and Ken McGuire, who are suing a pawnshop in West Virginia that sold a semiautomatic pistol used to badly wound them while they staked out a gasoline station that had been repeatedly robbed.

An investigation by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives determined that the gun had been sold to a gun trafficker, James Gray, who was legally prohibited from buying the weapon because he was a felon.

Mr. Gray went into the store, Will's Jewelry and Loan, in Charleston, W.Va., and handed thousands of dollars in cash to an accomplice after pointing out 12 guns he wanted to buy. The accomplice, who had no criminal record, then bought the guns for him, in front of the store owner, in what is known as a straw purchase.

Federal firearms law prohibits straw purchases, but they are one of the most common ways that criminals get guns.

Mr. Gray, who lived in New Jersey, resold the guns on the black market, court records show, including one to Shuntez Everett, a career criminal who soon used it to shoot the two officers at the gasoline station, in Orange, N.J. Mr. Everett died in a shootout with the police after shooting Officers Lemongello and McGuire, hitting both in the chest and the stomach and one officer in an arm and the other in a leg.

Both men have had to retire because of the severity of their wounds.

Mr. Lemongello was the one witness the Republicans who control the House Judiciary Committee allowed to testify against the gun industry immunity bill earlier this month.

In an interview afterward, Mr. Lemongello, 32, said the shooting had deprived him of his lifelong dream of being a police officer and that he had been eager to sue the Charleston gun shop, which is still in business and has not been prosecuted.

"But then I heard about this bill in Congress that would do nothing but protect bad dealers, and I felt sick and angry," Mr. Lemongello said.

"I'm not looking to put the gun industry out of business," he said. "I believe in the right to bear arms. I own a gun. I was a police officer and a police firearms instructor.

"But this case is a no-brainer," Mr. Lemongello said. "We are going after one bad dealer and one irresponsible manufacturer who didn't monitor what its dealers did."

The N.R.A. and the gun industry have made passing the immunity bill their main legislative priority this year. The Web site of the gun industry trade association, the National Shooting Sports Foundation, has an appeal for gun enthusiasts to write their congressmen to support the bill.

In the Senate, the bill has 52 co-sponsors, enough to pass it if there is no Democratic filibuster.

Mrs. Johnson, who was not allowed to testify, said she was not suing to win money. "This is about making these companies do things responsibly."

Bull's Eye, the Tacoma gun shop, is still in business, and Bushmaster is still selling rifles, Mrs. Johnson said, though a series of inspections by the federal firearms bureau found that the store could not account for 238 guns in its inventory in the last three years.

A spokesman for the United States attorney's office in Seattle said that Bull's Eye was under investigation.

But Scott McKenna, a spokesman for the federal firearms agency in Seattle, said the bureau had not been able to determine whether Bull's Eye had illegally sold the rifle to one of the sniper suspects without recording the sale or whether the gun had been stolen
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Old 04-21-2003, 09:58 AM   #2
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Ridiculous. Guns have one purpose only. I don't think anyone should own a firearm except police and farmers. The argument over the right to bear arms only goes around in circles though.

This I found rather interesting though "...prevent frivolous, politically motivated lawsuits" that may "bankrupt responsible companies by blaming them for the actions of criminals."

Where to start, with the number of things wrong with this statement....
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Old 04-21-2003, 10:02 AM   #3
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guns are bad
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Old 04-21-2003, 10:31 AM   #4
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If the weapon was purchased legally in accordance with the law, there is no reason any gun manufacturer should be allowed to be sued. No one at the factory pulled the trigger. I would call it frivolous if they purchased it legally.

I would love to read a copy of the Bill. I will state that no one should be exempt from suit if they are illegally selling weapons. That said, if someone has LEGALLY purchased a weapon and commits a crime, it is NOT the dealership nor the manufacturor's fault that someone acted irresponsibly.

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Old 04-21-2003, 10:43 AM   #5
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Gun manufacturers are in the business of producing and selling lethal weapons. Obvious fact, I know. But considering this, regardless of whether they are sold in a completely legal manner, an effort should be taken to ensure this lethal merchandise is monitored once it is in the possession of Joe Citizen. Who's responsibility this may be can be argued, but I honestly think, if one is willing to make such a business their industry, they need to take on some responsibility for it. I'm not saying it is the manufacturer's fault that guns end up in the wrong hands once the gun is sold, but they do have to be accountable to an extent.
Its not just the factory who has to take a role in it though.
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Old 04-21-2003, 11:33 AM   #6
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Quote:
Originally posted by Dreadsox
If the weapon was purchased legally in accordance with the law, there is no reason any gun manufacturer should be allowed to be sued. No one at the factory pulled the trigger. I would call it frivolous if they purchased it legally.

I would love to read a copy of the Bill.
http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.r.01036:

If the link doesn't work, the bill number is H.R. 1036 in the House.

Here's the CRS report on the bill:

RS21486 -- Protection of Lawful Commerce in Arms Act, H.R. 1036, 108th Congress: Legal Analysis


Updated April 10, 2003


Henry Cohen
Legislative Attorney
American Law Division

Summary
The Protection of Lawful Commerce in Arms Act, H.R. 1036, 108th Congress, as passed by the House on April 9, 2003, would prohibit lawsuits, except in specified circumstances, against a manufacturer or seller of a firearm or ammunition, or a trade association, for damages resulting from the criminal or unlawful misuse of a firearm or ammunition.

This report examines H.R. 1036, 108th Congress, as ordered to be reported by the House Committee on the Judiciary on April 3, 2003, and passed by the House without amendment on April 9, 2003. H.R. 1036, titled the "Protection of Lawful Commerce in Arms Act," would prohibit lawsuits, except in specified circumstances, against a manufacturer or seller of a firearm or ammunition, or a trade association, for damages resulting from the criminal or unlawful misuse of a firearm or ammunition. The bill would also require that pending lawsuits brought by shooting victims and municipalities be dismissed. Among the circumstances when the bill would permit a lawsuit to be brought or to continue would be when the defendant violated 18 U.S.C. 924(h) by transferring a firearm, knowing that it would be used to commit a crime of violence or a drug trafficking crime.

The bill's findings state that it is "an abuse of the legal system" to hold defendants "liable for harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended." A cosponsor of the bill said, "We're trying to stop making public policy through the courts with these nuisance suits." (1)

Opponents of H.R. 1036 "have denounced the proposed legislation as an unfair favor to an industry and a federal usurpation of states' rights," and have said that it "would bring progress toward safer guns to a screaming halt and make it more difficult for gun violence victims to recover damages. . . . It would prevent cities from collecting damages against gun manufacturers who maintain a distribution system which they know ensures the continual supply of guns to the illegal market." (2)

H.R. 1036 would prohibit a "qualified civil liability action" from being brought in any federal or state court, and would require the dismissal of any such action that is pending on the date of enactment of the bill. The bill defines a "qualified civil liability action" as, with five exceptions, "a civil action brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages or injunctive relief resulting from the criminal or unlawful misuse of a qualified product by the person or a third party." It defines a "qualified product" as a firearm (as defined in 18 U.S.C. 921(a)(3)(A) or (B)), an antique firearm (as defined in 18 U.S.C. 921(a)(16)), ammunition (as defined in 18 U.S.C. 921(a)(17)), or a component part of a firearm or ammunition.

H.R. 1036 defines "trade association," used in the definition of "qualified civil liability action" quoted above, as "any association or business organization (whether or not incorporated under Federal or State law) that is not operated for profit, and 2 or more members of which are manufacturers or sellers of a qualified product."

H.R. 1036 defines "manufacturer" to limit it to manufacturers who are licensed under chapter 44 of title 18, U.S. Code. It defines "seller" to include an "importer" (as defined in 18 U.S.C. 921(a)(9)), a "dealer" (as defined in 18 U.S.C. 921(a)(11)), and a "person engaged in the business of selling ammunition" (as defined in 18 U.S.C. 921(a)(17)). An "importer" and a "dealer" would have to be licensed under chapter 44 of title 18, U.S. Code, to be a "seller" under the bill.

The first of the five types of lawsuits that would not be a "qualified civil liability action," and that therefore would not be barred by the bill, would be: "(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted." Section 924(h) makes it a crime to "knowingly transfer[ ] a firearm, knowing that such firearm will be used to commit a crime of violence . . . or a drug trafficking crime." The "transferor" who may be sued is a person who has been convicted of violating section 924(h) or a comparable or identical law.

The phrase "is so convicted" appears unclear. Does it require that the transferee (i.e., the person who bought the firearm from the transferor and who shoots the plaintiff with it) be convicted? If so, of what? It would not be of section 924(h), because section 924(h) makes it a crime to transfer a firearm, not to receive one or to fire one. In addition, there would be no apparent reason for Congress to create an exception to exception (i) and prohibit lawsuits against transferors who violate section 924(h) merely because the transferee had not been convicted. The transferee, after all, may not have been convicted because he had been killed in self-defense by the plaintiff whom he shot, and this would not seem relevant to the transferor's culpability for the harm he indirectly caused by violating section 924(h). (3)

The second type of lawsuit that would not be a "qualified civil liability action," and therefore would not be barred by the bill, would be: "(ii) an action brought against a seller for negligent entrustment or negligence per se." The bill defines "negligent entrustment" as "the supplying of a qualified product by a seller for use by another person when the seller knows or should know the person to whom the product is supplied is likely to use the product, and in fact does use the product, in a manner involving unreasonable risk of physical injury to the person and others." This would seem to cover supplying a firearm or ammunition to a person who, because of age, mental disability, or violent propensity, seems likely to use the product in a dangerous manner.

The bill does not define "negligence per se." The term means "[n]egligence established as a matter of law, so that breach of the duty is not a jury question." (4) This means that, once a defendant's conduct is determined to have violated a relevant statute, the defendant is automatically deemed negligent, and the jury is not asked to determine whether the defendant acted in a reasonable manner. This is apparently the rule in "probably a majority of the courts." (5) "Some courts appear to have limited the 'per se' rule to situations where there has been a violation of a specific requirement of a law, etc. - legislation that expresses rules of conduct in specific and concrete terms as opposed to general or abstract principles. In some few states - at least in older cases not apparently disapproved - a distinction has been drawn as to ordinances, and violation of an ordinance, rather than violation of a statute, has been ruled to constitute, at most, evidence of negligence." (6)

Thus, whether a violation of a statute constitutes negligence per se is a question of state law, unless a federal statute provides that one who violates it shall be strictly liable in a civil action. One could therefore interpret this provision of H.R. 1036 to mean that, if a plaintiff alleges that the defendant violated a statute, and the statute is a federal statute that provides that one who violates it shall be strictly liable in a civil action, or the applicable state law provides that one who violates a statute or ordinance of the sort violated shall be strictly liable, then the plaintiff may proceed. If, however, applicable state law allows the question of negligence to go to the jury even when the defendant has violated a statute - i.e., if there is no negligence per se rule - then H.R. 1036 would preclude a lawsuit, unless one of its other five exceptions in the definition of "qualified civil liability action" applied.

The other three exceptions in the definition of "qualified civil liability action" - i.e., the other three types of actions that H.R. 1036 would not bar - are:


(iii) an action in which a manufacturer or seller of a qualified product knowingly and willfully violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought;

(iv) an action for breach of contract or warranty in connection with the purchase of the product; or

(v) an action for physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended.
In sum, with the five exceptions noted, H.R. 1036 would prohibit civil actions "for damages or injunctive relief resulting from the criminal or unlawful misuse of a" firearm or ammunition as defined in the bill. It is not apparent, in this context, that "unlawful" misuses would refer to any misuses that are not "criminal," or that "misuse" would mean anything different from "use."


Footnotes
1. (back)John Tierney, "A New Push to Grant Gun Industry Immunity From Suits," New York Times, Apr. 4, 2003, p. A10.

2. (back)Id. For background information, see CRS Report RS20126(pdf), Gun Industry Liability: Lawsuits and Legislation (updated Mar. 30, 1999).

3. (back)Is "transferee" actually meant to be "transferor"? This seems unlikely because exception (i) speaks of the plaintiff's having been "directly harmed by the conduct" of the transferee, and the plaintiff would be directly harmed by the conduct of the transferee. He would be only indirectly harmed by the conduct of the transferor.

4. (back)Black's Law Dictionary (7th ed.1999) at 1057.

5. (back)W. Page Keeton, Prosser and Keeton on The Law of Torts (5th ed. 1984) at 230. "The courts of many states" follow this rule. Stuart M. Speiser, Charles F. Krause, Alfred W. Gans, 2 The American Law of Torts (1985, cum. supp. 1998) at 1029.

6. (back) Stuart M. Speiser, Charles F. Krause, Alfred W. Gans, 2 The American Law of Torts (1985, cum. supp. 1998) at 1034-1035 (emphasis in original).



I agree about the manufacturers. As much as I'm in favour of gun control, I think it's ridiculous to sue the manufacturer unless the incident behind the lawsuit was due to a manufacturing defect.
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Old 04-21-2003, 03:20 PM   #7
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I agree about the manufacturers unless it is a defect. But I don't think the seller should be excluded as in this line:
"seller of a firearm or ammunition, or a trade association, for damages resulting from the criminal or unlawful misuse of a firearm or ammunition."

I think sellers,especially of an item capable of such harm be held to a higher standard.

"The bill would also require that pending lawsuits brought by shooting victims and municipalities be dismissed"
I think eliminating lawsuits already legally brought is totally wrong, especially as found legal by state laws or even brought by states. Ohio has a victim financial help program and holding gun sellers liable for illegal act would be a big help.

This and the other section about transfering seems to also eliminate "sellers" and how many transfers are done not knowing a crime is to be committed. Using this transfer option may never be able to be proven.
"defendant violated 18 U.S.C. 924(h) by transferring a firearm, knowing that it would be used to commit a crime of violence or a drug trafficking crime"
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Old 04-21-2003, 11:41 PM   #8
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Well if they argued that the gun was made to sniper and that it was above all others in snipping abilities then i could see where they are coming from but you cant just sue them because they made the gun. Go after the gov't for letting that gun to be legally sold.
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Old 04-22-2003, 03:44 PM   #9
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bonoman:

do you think the same about cigars and cigaretts?

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Old 04-22-2003, 04:15 PM   #10
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Quote:
Originally posted by Klaus
do you think the same about cigars and cigaretts?
I agree with exempting gun manufacturers and dealers from liability for criminal acts of individuals. The legislation is a necessary result of greedy trial attorneys who create theories of liability to line their own pocketbooks.

Tobacco products are already a mess. The amount of public money spent to support tobacco farmers, cigarette manufacturers, health care for cigarette smokers and public education on the dangers of cigarette smoking is the pinnacle of government stupidity.

Tobacco companies market a product as safe to consume. Gun manufacturers do not market products as the best way to solve family disputes.
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Old 04-22-2003, 09:11 PM   #11
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"I agree with exempting gun manufacturers and dealers from liability for criminal acts of individuals. The legislation is a necessary result of greedy trial attorneys who create theories of liability to line their own pocketbooks."

I agree with part of your observation, but if you read the article it stated that the dealer sold the guns illegally in a "straw" sale.

"Federal firearms law prohibits straw purchases, but they are one of the most common ways that criminals get guns"

You think the dealer should not be held accountable for illegal sales. What about violating the waiting period or background checks. This bill absolves the dealer from prosecution for violating existing laws unless they knew a gun would be used for a crime.

edited to add
It's easy to say "greedy trial lawyers if you've never been a victim. And while there are many "greedy trial lawyers" there's plenty of greedy corporations that need sued.
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Old 04-22-2003, 09:40 PM   #12
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Quote:
Originally posted by Scarletwine
edited to add
It's easy to say "greedy trial lawyers if you've never been a victim. And while there are many "greedy trial lawyers" there's plenty of greedy corporations that need sued.
My comments regarding trial lawyers was not from the perspective of the victim, but from one who has worked in the industry and seen how lawsuits are manufactured, not with justice in mind, but with quick settlement for guaranteed fees.
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