Mr. Chairman and Honorable Members of the Committee:

Thank you for giving me the opportunity to speak to you as a lawyer who has actually litigated the type of case this bill seeks to eliminate.   I have represented victims and their families in lawsuits against members of the gun industry for a number of years.  These cases seek to hold gun makers, importers, distributors and sellers accountable for their failures to adhere to a duty of due care in the way that they market, distribute advertise and sell guns.  We have not sought a ban on gun production, the discontinuance of a product or a line of products or even the imposition of stricter liability standards.   We have only asserted that a gun maker and seller, like the makers and sellers of other products, should be held to a negligence standard, that is, to be required to act as a reasonably prudent person or corporation would under similar circumstances.

The bill under consideration seeks to exempt members of the gun industry and their trade associations from this type of civil negligence liability.  Whether it will actually accomplish its goal if passed seems doubtful but the apparent intent of the legislation is to shield one industry from established common law requirements applicable to all other businesses.  These common law standards are only principles of common moral decency enshrined in our legal system that require essentially, that ‘you pay for what you break or take.’  Hand in hand with the statutory law, the common law provides a flexible system of compensation for those unjustly harmed by the conduct of another and deterrence of future wrongdoing by the threat of money damages.

The negligence and public nuisance cases targeted here involve the marketing, distribution and sale of underground market guns.  As this Committee deliberates the merits of this legislation, I ask that you take into consideration certain facts adduced during several years of litigation and research on this issue. 

First, there are millions of these underground market guns in circulation and these guns are predominately the ones used in crime.  I use the term ‘underground market’ to refer to guns acquired outside of legal channels by persons who could not get them legally. These guns are not covered by the requisite permits or licenses of a jurisdiction like New York, for instance, which has strict requirements about who may possess a gun.  The criminal use of these underground market guns was first presented in litigation by our statisticians and economists based on the Bureau of Alcohol Tobacco and Firearms database of guns recovered in crime. It was further documented by law enforcement experts, including high level BATF officials, who described how these guns are acquired: on street corners, out of the trunks of cars, traded for drugs.

Second, handguns used in crimes constitute a substantial market segment for the gun industry.  In Hamilton v. Accu-tek, 62 F. Supp.2d 802 (E.D.N.Y. 1999) judgment vacated, 264 F. 3d 21 (2d Cir. 2001), one of the earliest negligent distribution cases and the only one in which a jury found gun makers responsible for the injuries suffered by one of the plaintiffs, we found that almost one fourth of the industry’s handgun production  ends up in criminal hands.[1] Most of those guns went into criminal hands quickly: forty percent of guns recovered in crimes nationwide were last sold at retail within three years[2] and in New York, fifty one percent of guns recovered in crime were last sold at retail within 3 years.[3]  The only market segment larger than the criminal market is the personal protection market, accounting for 32.3 percent of handgun production.[4]

 Third, these guns reach juveniles, criminals, and other unauthorized persons by a few well-documented means: straw purchases,[5] multiple sales,[6] sales by kitchen table and gun show dealers.[7] The members of the industry know exactly what the problem is, who the problematic outlets for their products are and how these outlets operate.  Until the commencement of the various negligence and nuisance actions, however, the members of the industry have had no incentive to take the practicable steps necessary to alter their distribution and sales system to prevent or drastically reduce the flow of guns to unauthorized persons.   They were free to pursue a “hear no evil, see no evil” approach to their businesses.

Take for example, the 1994 publication entitled A Responsible Approach to Handgun Ownership by the Sporting Arms and Ammunition Manufacturers Institute, the oldest industry trade association, in which the industry’s most established and profitable gun companies

pledge[d] to sell [their] products to only

legitimate retail firearms dealers. 

We believe that by limiting sales to legitimate retail outlets, 

product features and safe operating procedures can be properly

demonstrated and explained by knowledgeable salespeople.  In

addition,  we feel such action would result in fewer of our products

ending up in the hands of unethical dealers. 

 Sounds good and I am certain that it sounded good to members of the Congressional Sportsmen’s Caucus to whom this pamphlet was directed, who were told, in essence, that the industry would police itself.  When asked what this ‘pledge’ meant at depositions in the Hamilton case, neither the SAAMI Executive Director who drafted the document nor the heads of the companies participating in SAAMI could define a ‘legitimate retail dealer’ other than to say that it was one who had the mandatory federal firearms license.  Moreover, all conceded that there was no action taken by anyone at SAAMI or its members to follow through on the “pledge” to ensure that members dealt only with legitimate dealers and to keep guns out of the hands of unethical dealers.  Basically, the response from the gun makers was that, despite the public relations communication, the promise to supervise their distribution channels, to keep guns out of the hands of the unethical dealers, was not part of their job.

As the litigation progressed and other cases were brought, some companies started to implement some safety mechanisms, including: distribution requirements between manufacturers and distributors which called for the elimination of sales to dealers operating without a storefront, sales training in identifying and preventing straw purchases, restrictions on selling to gun shows, establishing authorized dealerships with storefront dealers that allow for closer control of dealers.  Instead of the hollow ‘pledge’, SAAMI and its sister organization the National Shooting Sports Foundation now provide a videotape presentation on how to recognize and prevent straw purchases.

 We have found that some companies in this industry have done well financially while working to implement safer distribution systems.  Other companies have tried to take safety measures. However, as we saw after the proposed Smith & Wesson settlement, one or two companies cannot make significant distributional safety changes without suffering serious competitive harm.  The companies that have tried to act responsibly or more responsibly are the ones that will be competitively harmed by the legislation proposed here.  The exemption provided by this legislation will provide a safe haven to the most flagrant violators of community standards of decency and accountability.  The cost of doing business is much less for one willing to operate recklessly without any regard for the harm caused than it is for the company that tries to act responsibly by implementing systems to prevent its distribution channel partners from selling to gun traffickers and criminals.  The companies that will benefit from this legislation are the ones which carry less product liability insurance for their 250,000 per year unit production than I have on my car, who dump their guns into the same retail outlets that account for hundreds of crime gun traces each year, who thumb their noses at both the ATF and the courts by operating with multiple licenses and a variety of under capitalized corporations to shield the owners from liability.  Are these the interests this Committee wants to protect?

Litigation based on harm suffered as a result of the actions of those manufacturers and importers which consistently market and sell substantial numbers of crime guns is necessary to compensate the innocent, punish the wrongdoer and deter future wrongdoing.   Analyses of the BATF firearms trace database, the compilation of records of guns recovered and traced in connection with crimes from 1989 to the present, discloses that year after year the same entities send large and, we believe, disproportionate numbers of guns into criminal hands.  Many of the so called Saturday-Night Special manufacturers routinely make the short list of manufacturers whose guns are most frequently recovered in crimes while the number of guns they produce on an annual basis is far lower than the production of the larger gun makers.  Many of these guns are extremely inexpensive, sold without any distribution constraints to anyone who can pay and advertised as easily concealable. 

Surely, this Committee would not deny access to the courts and the possibility of redress for those shot with guns made, distributed and sold by the companies which have consistently sold guns into the criminal market?  These guns would not be accessible to the shooters but for the negligence of certain companies.  Would this Committee take away the right of access to the courts to the family of the 22 year old young woman working at the Wendy’s fast food restaurant while saving money to pay for her college education who was tragically and senselessly shot by two men with a negligently distributed gun that ranked in the top ten crime guns and which passed through distributors and a dealer that have sold thousands of guns to criminals over the last five years? The innocent and the responsible will suffer by virtue of this legislation; only the irresponsible stand to gain by it.  

The civil justice system develops relevant evidence in order to resolve competing claims.  For hundreds of years it has effectively accommodated the needs of commercial enterprises with the demands of safety.  No reason has been offered to justify its suspension for this industry.