Gun bill has opponents up in arms.

Last October, amid the sniper shootings that terrorized Washington, D.C., Maryland, and Virginia, you might not have imagined that this spring the U.S. House of Representatives would pass a bill providing special protections to gun manufacturers and sellers. Yet, on April 9, the House passed H.R. 1036, the Protection of Lawful Commerce in Arms Act. At press time, the Senate version, S. 659, was on the cusp of reaching the Senate floor for consideration.

The bill is not standard tort "reform" fare. Instead, it protects gun manufacturers and sellers from "qualified civil liability actions." Specifically, the bill would prohibit a civil action against a gun manufacturer, seller, or trade association for "damages or injunctive relief resulting from the criminal or unlawful misuse" of a firearm.

The bill does not protect the maker or seller of a firearm from suits alleging negligent entrustment or negligence per se, or from those brought for physical injury or property damage "resulting directly from a defect in design or manufacture of the product, when used as intended."

Scope of the legislation

The language of the bill is designed specifically to eliminate lawsuits filed by cities and counties against the firearms industry seeking reimbursement for the costs associated with gun violence. According to the Center for Gun Policy and Research at Johns Hopkins University, more than 30 cities and counties have filed such suits since 1998. While most of these cases have been dismissed, the center maintains that "for litigation to be effective, obstacles must not be erected that hinder its public health purposes."

During the mark-up of the House bill in the Judiciary Committee, ranking member John Conyers (D-Mich.) expressed concern about the extent of protection the bill offered gun dealers:

   [T]he bill irresponsibly protects dealers who
   recklessly sell to gun traffickers, knowing (or
   with reason to know) that the trafficker
   intends to resell the guns to criminals. This
   exemption from liability is achieved as a result
   of the bill's narrow definition of "negligent
   entrustment." The bill defines "negligent
   entrustment" to include only initial transfers
   completed between the original seller and purchaser
   of a gun. It does not include secondary
   transfers, even when the original seller is
   aware of the purchaser's intent to resell to a
   particular individual.

Following the mark-up, 14 Democratic members of the Judiciary Committee submitted dissenting views, filed with the committee's report.

They noted:

   Supporters of H.R. 1036 ... claim that the lawsuits
   prohibited by the bill are "frivolous,"
   "unprecedented," and have been universally
   rejected by the courts. To the contrary, courts
   around the country have recognized that precisely
   the types of cases that would be barred
   by this bill are grounded in well-accepted legal
   principles, including negligence, products liability,
   and public nuisance. These courts have
   held that those who make and sell guns--like
   all others in society--are obligated to use
   reasonable care in selling and designing their
   product, and that they may be liable for the
   foreseeable injurious consequences of their
   failure to do so even if those foreseeable
   consequences include unlawful conduct by third
   parties. This bill, if enacted, would nullify these
   decisions, rewriting and subverting the common
   law of those states, and then only with
   respect to a particular industry.

The Legal Action Project of the Washington, D.C.-based Brady Center to Prevent Gun Violence is representing the families of two victims who died in the October sniper shootings. Six more families are expected to join the suit.

The shooters allegedly used a Bushmaster rifle that came from Bull's Eye Shooter Supply in Tacoma, Washington. Dennis Henigan, director of the Legal Action Project, said the store did not realize the rifle was missing until after the suspects were arrested. He added that 200 more guns are missing from Bull's Eye's shelves.

The case involving the sniper victims "is a case of negligent security, not a violation of a statute, not negligent entrustment, and not negligence per se," he said.

If the gun bill is passed and signed into law, it would bar the suit. In addition, on the date of enactment, any pending "qualified civil liability action" would be "dismissed immediately."

Need for oversight

At a recent Capitol Hill briefing on S. 659, former National Rifle Association assistant general counsel and former gun industry lobbyist Robert Ricker said that gun manufacturers know--through credit and business history--which dealers are good and which are bad. He said the gun industry should "set up a monitoring system to keep track of dealers, because they virtually don't police themselves at all."

Ricker said most gun dealers are not a problem. "Only 1 to 1 1/2 percent of dealers are bad apples. But they represent about 20 percent of the sales in the United States."

At the same briefing, Joseph Vince, a former chief of the Firearms Division of the U.S. Bureau of Alcohol, Tobacco, and Firearms (ATF), said this bill would make a difficult job even tougher for law enforcement personnel.

"It already takes an average of five years for the ATF to revoke a federal firearms license [either a manufacturer's or a dealer's]. If there's no accountability, there's no responsibility. If this bill passes, a bloodbath will start," he said.

ATLA takes no position on firearms policy, but it opposes the bill on the ground that "as a matter of fundamental principle, Congress has no business eliminating rights that exist under state law."

Kristin Loiacono is associate director for media outreach and coalition development in ATLA's Media Relations department.