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Chairman
Stearns and distinguished members of the Subcommittee, my name is Lawrence G.
Keane. I am the vice president and
general counsel to the National Shooting Sports Foundation, Inc. (“NSSF”).
The National Shootings Sports Foundation appreciates the opportunity to
appear before the Subcommittee to offer testimony in support of the
“Protection of Lawful Commerce in Arms Act.” (H.R. 2037), which is an
important piece of common sense legislation.
Formed in 1961, the
National Shooting Sports Foundation, with approximately 1,900 members, is the
major trade association for the firearms and recreational shooting sports
industry. The NSSF manages a
variety of programs designed to promote a better understanding of, and a more
active participation in, the shooting sports.
The NSSF’s programs and initiatives reflect the firearms industry’s
genuine and longstanding commitment to fostering firearm safety and education
and further reducing the illegal acquisition and criminal misuse of firearms.
Our members are engaged in the interstate and foreign commerce of firearm
and ammunition products, a lawful and highly regulated activity.
Beginning in 1998, a
group of approximately forty urban politicians, aligned with contingency-fee
trial lawyers and anti-gun activists, have flooded our nations courts with
lawsuits against federally licensed firearms manufacturers, wholesale
distributors and retailers. On
March 28, 2002 the City of Jersey City, New Jersey became the most recent city
to file suit. Additional suits are
threatened, and there are a growing number of private (non-municipal) suits
against the industry.
As the courts have
recognized, these suits are an improper attempt to use litigation to regulate
the design, manufacturer, marketing, distribution and sale of firearms, thereby
circumventing state legislatures and Congress.
In dismissing the New Orleans’ case, the Louisiana Supreme Court
commented on local suits threatened the public safety and welfare because they
will result in haphazard and inconsistent rules.
Winning on the
merits is not necessary in order for these politicians to impose their will.
Their policy judgments can be implemented throughout the nation if the
coercive effect resulting from the staggering financial cost to defend these
suits forces the industry into a Hobson’s choice of either capitulation or
bankruptcy. At the time he filed
his suit, Chicago Mayor Richard Dailey said, “We’re going to hit them where
it hurts – in their bank accounts…” Andrew
Cuomo, then Housing and Urban Development Secretary, threatened firearms
manufacturers with “death by a thousand cuts.”
The collective
industry-wide cost to defend these ill-conceived, politically motivated suits,
has been truly staggering. Exact
figures are not available because the defendants are still competitors and their
defense costs is considered confidential business information.
However, based on discussions with insurance industry executives,
manufacturers’ corporate counsel, cost estimates in various publications, and
NSSF’s own experiences, I believe a conservative estimate for the total,
industry-wide, cost of defense to date exceeds $50 million dollars.
This cost has been
borne almost exclusively by the companies themselves. With few exceptions, insurance carriers have denied coverage.
This has resulted in large, across-the-board, price increases for
consumers. Many of these suits allege that industry’s products are
defectively designed. While this
allegation is patently untrue, these suits have ironically forced companies to
scale back research and development to further improve the overall safety and
design of their products.
As a result of these
suits, firearms industry members have experienced dramatic premium increases
when renewing their insurance policies. Renewed
policies almost invariably exclude coverage for the municipal suits.
These suits have been
an unnecessary distraction to our nation’s firearms manufacturers whose time
and attention would be better-spent supplying law enforcement and our armed
forces with the equipment they need to protect America and combat global
terrorism.
Of the twenty-four municipal
suits that have been filed to date, ten have been dismissed by the courts, with
six of those cases being fully and finally adjudicated.
Every appellate court in the nation to decide a municipal firearms case
has ruled in favor of the industry and ordered the cases dismissed, including
three state supreme courts and the United States Supreme Court denied certiorari
of New Orleans’ appeal. Seven
cases are currently on appeal.
On March 27, 2002 the City of
Boston, after completing 18 months of comprehensive discovery, became the first
municipality to voluntarily dismiss its case against the industry.
In dismissing its case, Boston acknowledged it had learned the firearms
industry has a genuine and longstanding commitment to further reducing firearms
accidents; cooperating with law enforcement in their efforts to combat the
criminal misuse of firearms; and promoting the safe and responsible distribution
of firearms. Boston now believes
the best way to achieve these shared goals is through cooperation and
communication, rather than through expensive, time-consuming and distracting
litigation.
The National Shootings
Sports Foundation urges you to vote in favor of the Protection of Lawful
Commerce in Arms Act (H.R. 2037).
MUNICIPAL FIREARMS LITIGATION “SCORECARD”
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Complete
Dismissals
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Appeals
Re: State Preemption Statutes
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Fully &
Finally Adjudicated Cases
Bridgeport -
Affirmed CT Supreme Court
Miami
- Affirmed FL
Appellate Court,
petition
denied by FL S. Ct.
New Orleans - Affirmed LA S. Ct., cert.
denied by U.S. S. Ct.
Camden County - Affirmed U.S. 3rd
Cir.
Court of Appeals
Philadelphia - Affirmed U.S. 3rd
Cir. Court
of Appeals
Atlanta
- Case dismissed by GA Court of
Appeals
Dismissals On Appeal
Chicago
Cincinnati – Affirmed by Court of
Appeals
Gary
New York State
Voluntary Dismissals
Boston – with prejudice
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Detroit/Wayne County
Cases Terminated Based on State Preemption
New Orleans (retroactive)
Philadelphia
Atlanta (retroactive)
Partial Dismissals On Interlocutory Appeal
Detroit/Wayne County
Newark
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Partial
Dismissal – Pending Cases
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Dismissal
Denied – Pending Cases
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Newark
- Motion for interlocutory
appeal granted
Wilmington
- Discovery limited to city’s
damages; summary judgment
to be filed
Detroit/Wayne Co. - Interlocutory appeal pending
California
- Restitution & disgorgement
claims dismissed
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Cleveland – Stayed pending
Cincinnati appeal
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Pending
Motions to Dismiss
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No
Motion to Dismiss Filed
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Camden City
St. Louis
Washington, DC
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New York City – Case stayed
pending appeal of
NY State case
Jersey City – Complaint filed March 28, 2002
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SELECTED
QUOTATIONS FROM
THE Municipal
firearms LITIGATION DECISIONS
ATLANTA
Preemption:
“The
practical effect of the preemption doctrine is to preclude all other local or
special laws on the same subject. That
the City has filed a law suit rather than passing an ordinance does not make
this any less usurpation of State power. The
City may not do indirectly what it cannot do directly.”
– Presiding
Judge Andrews, Court of Appeals of Georgia, Sturm, Ruger & Company, Inc.
et al. v. City of Atlanta, 2002 WL 215619, 4 (Ga. App. Feb.13, 2002).
BOSTON
Remoteness/Proximate
Cause:
“Proof of
causal relationship between a defendant’s action and a plaintiff’s injury is
essential in every tort ‘because the consequences of an act go endlessly
forward in time and its causes stretch back to the dawn of human history,’ the
concept of proximate causation was developed to limit the liability of the
wrongdoer to only those harms with a reasonable connection to the wrongdoer’s
actions.”
–
Justice Hinkle, Superior Court of Massachusetts, City of Boston v. Smith &
Wesson Corp, 2000 WL 147 3568, 3 (Mass. Super.
Ct. July 13, 2000).
BRIDGEPORT
Standing:
“Standing is
the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court
unless he has, in an individual or representative capacity, some real interest
in the cause of action, or a legal or equitable right, title or interest in the
subject matter of the controversy. (citations omitted).
Thus, to state these basic propositions another way, if injuries claimed
by the plaintiff are remote, indirect or derivative with respect to the
defendant’s conduct, the plaintiff is not the proper party to assert them and
lacks standing to do so.”
–
Justice David M. Borden, Supreme Court of Connecticut, Ganim
v. Smith and Wesson Corp., et al.,
780 A.2d 98, 119 (Conn. 2001).
Remoteness/Proximate
Cause:
“It cannot
be denied that factors other than the defendants’ manufacture, advertisement,
distribution and retail sales of guns contribute in significant measure to the
various harms claimed by the plaintiffs. The
scourge of illegal drugs, poverty, illiteracy, inadequacies in the public
educational system, the birth rates of unmarried teenagers, the disintegration
of family relationships, the decades long trend of the middle class moving from
city to suburb, the decades long movement of industry from the northeast ‘rust
belt’ to the south and southwest, the swings of the national and state
economies, the upward track of health costs generally, both at the state and
national level, unemployment, and even the construction of the national
interstate highway system.…” Id.
at 124.
CAMDEN COUNTY
Public
Nuisance:
“public
nuisance law does not sweep so broadly as to impose liability on manufacturers
of a legal product, who follow relevant regulations, and who do not control or
participate in irresponsible secondary and tertiary acts that are more directly
responsible for the end harm.”
– District Judge Jerome B. Simandle, Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp.,
et al., 123 F. Supp. 2d 245, 267 (D.N.J. 2000).
“[I]f public
nuisance law were permitted to encompass product liability, nuisance law
‘would become a monster that would devour in one gulp the entire law of
tort.’ If defective products are
not a public nuisance as a matter of law, then the non-defective, lawful
products at issue in this case cannot be a nuisance without straining the law to
absurdity… To extend public nuisance law to embrace the manufacture of
handguns would be unprecedented under New Jersey state law and unprecedented
nationwide for an appellate court. ”
–
Per Curiam, U.S. Court of Appeals for the 3rd Circuit, Camden
County Board of Chosen Freeholders v. Beretta U.S.A. Corp., et al.,
273 F.3d 536, 540 (3d Cir. 2001)
CINNCINNATI
Failure
to State Cause of Action:
”Using a shotgun approach in
its complaint, the city has made its broad assertions without alleging a direct
injury caused by a particular firearm model or its manufacturer.
We hold that the city’s attempts to stand in the shoes of its citizens
and to recover municipal costs must fail.”
–
Judge Winkler, Court of Appeals of Ohio, First District Hamilton County, Cincinnati
v. Beretta U.S.A. Corp. et al.,
2000 WL 1133078, 2 (Ohio App. 1 Dist. 2000).
Public
Nuisance:
“In
this case, the city has alleged that the defendants intentionally and recklessly
marketed, distributed, and sold guns that they knew would be possessed and used
illegally. An activity that is authorized by law cannot be a public
nuisance or absolute nuisance. ‘This
is especially true where a comprehensive set of legislative acts or
administrative regulations governing the details of a particular kind of conduct
exist.’ ” Id. at 6. “In
sum, the city has no claim for public or absolute nuisance arising from the
defendants’ heavily regulated distribution of firearms, because ‘what the
law sanctions cannot be aid to be a public nuisance.’ ”
Id. at 7
Strict
Liability (Failure to Warn):
“The Court
finds as a matter of law that the risks associated with the use of a firearm are
open and obvious and matters of common knowledge.”
– Judge Ruehlman, Court of Common Pleas of Ohio, Cincinnati
v. Beretta U.S.A. Corp. et al., 1999 WL 809838, 1 (Ohio Com. Pl.
1999).
Judicial
Activism:
“In the view
of this Court, the City’s complaint is an improper attempt to have this Court
substitute its judgment for that of the legislature, which this Court is neither
inclined nor empowered to do.” Id.
at 1.
Remoteness:
“The claims
of the City are premised on injuries which have occurred to its citizens, and as
such are barred by the doctrine of remoteness.
It is well established that a plaintiff may not recover derivative
damages for injuries to remote third parties, as the City is attempting to do
here.” Id. at 3.
DETROIT
& WAYNE COUNTY
Duty:
“A
review of the pleadings leads to the conclusion that the actual duty advanced by
Plaintiffs is essentially one of crime prevention… Crime prevention, however, is simply not a cognizable legal
duty owed by these Defendants to these Plaintiffs.”
–
Judge Jeanne Stempien, Archer v. Arms Technology, No.
99-912658-NZ (Wayne Co. Cir. Ct. May 16, 2000) and McNamara v. Arms
Technology, No. 99-912662-NZ (Wayne
Co. Cir. Ct. May 16, 2000).
GARY
Subject
Matter Jurisdiction/Judicial Activism:
“In
substance, the City and its Mayor opt to engage in efforts at arbitrary social
reform by invoking the process of the Judicial Branch of Government, where
apparently the City perceives, but fails to allege, irreversible failures in the
appropriate Legislative Branch(s) of Government…The City should not be
permitted to invoke the jurisdiction of this Court to overlay or supplement
existing civil and criminal ’gun’ statutes and processes (either state and
federal) by means of a series of judicial fiats which, when taken together,
would only create a body of ‘judge made gun laws’.”
– Special Judge James J. Richards, Lake Superior Court,
County of Lake, City of Gary v.
Smith & Wesson, 2001 WL 333111, 3 (Ind. Super. Ct. Jan. 12,
2001).
Public
Nuisance:
“[A]
legislative body cannot authorize conduct on one hand, and seek to punish it
through public nuisance actions on the other, particularly where a comprehensive
regulatory scheme already governs the challenged conduct.”
Id. at 4.
MIAMI-DADE COUNTY
Recovery
of Municipal Costs Provided by Public Services:
“The
Court concludes that the County’s claim for damages, based on the costs to
provide 911, police, fire and emergency services effectively seeks reimbursement
for expenditures made in the performance of governmental functions.
Costs of such services are not, without express legislative
authorization, recoverable by governmental entities.
– Judge Amy N. Dean,
Florida Circuit Court, Penelas v. Arms Technology, Inc., 1999 WL
1204353, 1 (Fla. Cir. Ct. Dec. 13, 1999).
Preemption:
“While the
County claims that lawsuits cannot be regulatory and that only regulations can
‘regulate,’ the U.S. Supreme Court has made clear that lawsuits seeking
compensatory damages or injunctive relief, or both, are a form of regulation
that can infringe on preempted activity….”
Id. at 2 referring to BMW of North Am., Inc. v Gore,
517 U.S. 559 (1996).
Judicial
Activism:
“The
County’s request that the trial court use its injunctive powers to mandate
redesign of firearms and declare that the appellees’ business methods create a
public nuisance, is an attempt to regulate firearms and ammunition through the
medium of the judiciary… The County’s frustration cannot be alleviated
through litigation as the judiciary is not empowered to ‘enact’ regulatory
measures in the guise of injunctive relief.
The power to legislate belongs not to the judicial branch of government
but to the legislative branch.
– Judge J.J.
Fletcher, District Court of Appeal of Florida, Third District, Penelas v. Arms Technology,
Inc., 2001 WL 120529, 2; 778 So.2d 1042, 1045 (Fla. App. 3rd Dist. Feb 14,
2001).
NEW
ORLEANS
Preemption:
“Clearly,
state regulation of the lawful design, manufacture, marketing, or sale of
firearms and ammunition is of vital interest to the citizens of Louisiana.
Equally clear is the fact that consistent, exclusive statewide regulation
of the firearms industry tends in a great degree to preserve the pubic safety
and welfare. A scheme allowing
several municipalities to file suits effectively attempting to regulate the
firearms industry in different ways and in different degrees could conceivably
threaten the public safety and welfare by resulting in haphazard and
inconsistent rules governing firearms in Louisiana.
Moreover, this court has consistently recognized that the legislature’s
authority to regulate different aspects of the firearms industry constitutes a
legitimate exercise of police power.”
– Justice Kimball, Supreme Court of Louisiana, Morial
v. Smith & Wesson, Corp., 2001 WL 316267, 9 (La. April 3, 2001).
NEW YORK STATE
Nuisance:
“Certainly,
liability for common law nuisance rests on whether the defendant’s conduct
resulted in the existence of the nuisance, i.e., whether the defendant
contributed to the creation or maintenance of the nuisance.
However, a line must eventually be drawn since there will be many
instances in which a party may have contributed in some remote way and yet it is
inappropriate to subject that party to tort liability.
In other words, at some point, a party is simply too far removed from the
nuisance to be held responsible for it.“
–
Judge Louis B. York, Supreme Court of the State of New York, People
of The State of New York v. Sturm, Ruger & Co., Inc., et al.,
No. 402586/00, slip op. at 22
(Sup. Ct. New York Aug. 10, 2001).
PHILADELPHIA
“Plaintiffs
have advanced a novel approach to an old theory by targeting the gun
manufacturers. Unfortunately, this
was a theory in search of a case, and the defendants are out of range.”
– Judge Berle M. Schiller, United States District Court,
Eastern District of Pennsylvania, City
of Philadelphia v. Beretta U.S.A. Corp., 2000 WL 1871712, 23
(E.D. Pa. Dec. 20, 2000).
Statutory Restrictions:
“What the
City cannot do by act of the city Council it now seeks to accomplish with a
lawsuit. The United States Supreme
Court has recognized that the judicial process can be viewed as the extension of
a government’s regulatory power. As
the court explained, ‘[s]tate power may be exercised as much by a jury’s
application of a state rule of law in a civil suit,’ as by regulation or
ordinance. (citations omitted).
Similarly, the City’s instant action seeks to control the gun industry
by litigation, an end the City could not accomplish by passing an ordinance.”
Id. at 4.
Duty:
“[N]o
legal duty exists upon these defendants to protect citizens from the deliberate
and unlawful use of their products.” Id.
at 14.
Remoteness:
In
its analysis the district court examined the route a gun takes from the
manufacturer to Philadelphia streets. (citations
omitted). First, the defendant manufacturers sell guns to licensees; second, the
licenses (sic) sell the guns to dealers; third, the dealer sells it to a lawful
purchaser acting as a straw buyer; forth, the straw buyer transfers the weapon
to a criminal or a youth; fifth, the transferee uses the gun to commit a crime;
and finally, demand on the City’s or the organizational plaintiffs’
resources is increased.
Plaintiffs
try to shorten the causal chain by arguing that the
’thriving illegal market…injures [them], even before any guns acquired in
the illegal market are actually used in the commission of a crime.
This statement, however, does not reduce the links that separate a
manufacturer’s sale of a gun to a licensee and the gun’s arrival in the
illegal market through a distribution scheme that is not only lawful, but also
prescribed by statute with respect to the manufacturer’s conduct.
–
Circuit Judge Greenburg,
U.S. Court of Appeals for the Third Circuit, City of Philadelphia v.
Beretta U.S.A. Corp., 2002 WL 29740, 4 (3d Cir. Jan. 11, 2002).
WILMINGTON
Duty:
“Concerning the alleged duty of care to
prevent firearms from ‘landing in the hands of [criminals],’ a duty like
that might apply to retailers. The
Court sees no duty on the manufacturers’ part that goes beyond their duties
with respect to design and manufacture. The
Court cannot imagine that a weapon can be designed that operates for law abiding
people, but not for criminals.”
– Judge
Silverman, Delaware Superior Court, Sills v. Smith & Wesson Corp.,
C.A. No. 99C-09-283-PSS, 20 (Del. Sup. Ct. Dec. 1, 2000).
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