CQ TODAY – LEGAL AFFAIRS
Oct. 19, 2005 – 8:03 p.m.
By Michael Sandler and Seth Stern, CQ Staff
When the House clears sweeping legislation Thursday to shield gun manufacturers and dealers from being sued when third parties misuse their products, it will spell the culmination of a national debate that began eight years ago in city halls and courtrooms around the country.
The bill (S 397) will be the latest in a series of laws pushed by the GOP-led Congress that limit the ability to sue or collect damages from a growing number of industries — fulfilling campaign promises made by many Republican lawmakers on Capitol Hill and President Bush.
The House passed a version of the gun bill in the 108th Congress with the help of a fair number of Democrats. Several are ready to join Republicans again.
The bill, sponsored by Sen. Larry E. Craig, R-Idaho, was passed by the Senate with bipartisan support on July 29. Bush has said he will sign the bill into law when it reaches his desk.
Craig’s measure would prohibit civil liability actions from being brought in any state or federal court against manufacturers, distributors, dealers and importers of firearms and ammunition. Trade groups would also be protected. All pending actions would be dismissed.
Supporters say allowing such lawsuits would be like taking car manufacturers to court when people drive drunk. They say the suits are often filed by anti-gun critics hoping to bankrupt manufacturers with exorbitant legal fees.
Craig said the objective is to keep lawyers from using lawsuits as a political tool to cripple law-abiding gun dealers.
“It’s a broader statement than just for guns,” he said.
Opponents say the bill’s reach is “unprecedented,” arguing that it offers protection to gunmakers who are negligent.
“It’s very much an elaborate smoke screen,” said Dennis Henigan, legal director for the Brady Campaign to Prevent Gun Violence. “I think the [National Rifle Association] reached for the broadest possible immunity.”
The bill would not provide liability protection to those who knowingly sell or transfer firearms intended to be used for a crime or cases in which proper use resulted in physical injury, death or property damage because of a defect.
“This bill protects legally made and legally sold firearms,” said Chris W. Cox, chief lobbyist for the NRA. “To get this protection, you have to come to the table with clean hands.”
Framed by the News
The fight for this protection has prompted those on both sides to reach into some of the biggest news stories of the past six years to bolster their arguments.
The measure received an unusual endorsement from the Department of Defense, which urged passage as a matter of national security. The U.S. military depends on the firearms industry for its arsenal.
But the added protection for gun manufacturers comes three years after two snipers terrorized Washington residents for weeks and within six years of the shootings at Columbine High School in Colorado.
The debate began in 1998, when New Orleans and Chicago led a number of cities in an effort to sue handgun manufacturers to pay for the cost of urban violence during the 1990s. At one point Edward G. Rendell, now the Democratic governor of Pennsylvania and then the mayor of Philadelphia, proposed a simultaneous filing by as many as 100 cities on the same day.
Gun-rights lobbyists reacted by persuading 33 states to pass laws prohibiting such legal action and the majority of cases were subsequently dismissed. A half-dozen are still pending and would be tossed out by the federal ban.
But without all 50 states participating, or a federal law, a manufacturer could be hit with legal action posed in a state without such a law.
“One judgment could bankrupt them,” said Cox. “They [cities] based their legal theory on big tobacco.”
So on March 9, 1999, Republicans in Congress launched an effort to create a federal ban on such lawsuits.
One month later, Columbine derailed efforts to move the legislation in the 106th Congress. A bill returned in the 107th Congress, only to be shelved in 2002 — the same year of the D.C. sniper case.
“I think one of the reasons the battle was so intense, and one of the reasons we were able to block passage, was because we focused attention on the victims of violence who would be unable to file lawsuits,” Henigan said.
In the 108th Congress, the House passed a version of the bill by a vote of 285-140 and the Senate moved close to matching when Craig attracted 54 cosponsors for a companion bill.
But Senate Democrats succeeded in attaching three amendments opposed by the bill’s backers, including a renewal of the assault weapons ban (PL 103-322) and Republicans — at the urging of the NRA — were forced to defeat their own bill.
But Republican gains in the November election — they added four Senate seats — solidified their majority and made the Democrats’ task tougher in the 109th Congress.
Senate Majority Leader Bill Frist, R-Tenn., used procedural maneuvers to control what amendments Democrats could offer. As a result, only one provision was added: an amendment by Herb Kohl of Wisconsin that would require child safety devices to be sold with all handguns.
One Piece at a Time
The gun bill would be the second major victory for Republican efforts to overhaul the civil justice system this year. It comes eight months after the president signed into law another piece of legislation (PL 109-2) previously stalled in the Senate that is designed to shift more class action lawsuits from state to federal court.
Tort overhaul advocates, including leaders of the U.S. Chamber of Commerce, placed the blame for the class action bill’s failure last year squarely on the shoulders of former Minority Leader Tom Daschle, D-S.D. (House, 1979-87; Senate, 1987-2005), who was defeated last year by Republican John Thune.
“Elections have consequences,” Craig said.
The gun bill also is the latest in a string of laws enacted in the Republican-controlled Congress in recent years to protect specific industries from lawsuits. Since the early 1990s, the manufacturers of vaccines and small planes as well as organizations that perform volunteer medical missions such as transporting organ donations or transferring used fire equipment were all granted protection by Congress.
A similar measure that would protect food companies sued by customers on the grounds their offerings made them obese passed the House on Wednesday but is unlikely to be taken up in the Senate this year. John Cornyn, R-Texas, has introduced a bill (S 1406) to shield manufacturers of respirators used to protect against environmental hazards.
After Republicans took control of Congress more than a decade ago, they discovered it would be difficult to enact broader legislation to shield more manufacturers. American Tort Reform Association general counsel Victor E. Schwartz says focusing on narrow industry-specific bills has proven far more successful by avoiding the types of lawsuits most important to trial lawyers.
“The bills that are passing are ones where very few plaintiffs’ lawyers bring these kinds of suits,” Schwartz said.
Critics say tort overhaul proponents’ bite-size approach is slowly encroaching on an area of law long left to the states.
“Their strategy is clear,” said Andrew Popper, an American University law professor who testified against Republican tort overhaul bills last year. “They pick areas that are currently in the news, generate by publicity a certain amount of outrage by mischaracterization, and when the temperature is right, see if you can pass a federal law. Do it in enough areas, do it frequently enough and you get the public accustomed to the absurd notion that tort law is somehow federal.”
But another GOP tort priority, legislation designed to create an asbestos trust fund, is likely dead for the year. Senate Judiciary Committee member Dianne Feinstein, D-Calif., said earlier this week that she believes there simply will be no floor time left this year to take up the bill (S 852).