Mr. President, I have an amendment concerning the DC sniper victims, and I send it to the desk on behalf of myself, Senators Sarbanes, Lautenberg, Corzine, and Clinton. Mr. President, I ask unanimous consent that the reading of the…
Mr. President, I have an amendment concerning the DC sniper victims, and I send it to the desk on behalf of myself, Senators Sarbanes, Lautenberg, Corzine, and Clinton.
Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
Mr. President, I rise on behalf of my Maryland constituents and other neighbors across the Potomac to offer an amendment on behalf of the sniper victims. My colleagues might remember that over 1 year ago, the citizens of Maryland, Virginia, and the District of Columbia were terrorized by snipers. Soccer games were cancelled. People were afraid to buy gas
and terrified to go into a Home Depot. What was happening was that 10 innocent people were killed while they were mowing their lawn or getting gas or while a new bride was going shopping at Home Depot to gussy up her home, or one was a bus driver getting ready to do his duty. These families have experienced tremendous loss, and the Nation mourned with them.
We so thank our law enforcement agencies for helping us catch the snipers and the judicial system that is working to try them, but now we also need to make sure that we protect the victims and the victims' families.
I bring to the attention of my colleagues that the legislation Congress is considering now could inflict further pain on the families. It could slam the courthouse door on the families of the sniper victims and on all Americans who believe they are harmed by negligent actions related to guns. It gives gun dealers and manufacturers a free pass, and it will prevent families and survivors from holding irresponsible stores accountable if they are negligent.
It actually would prohibit these families from going to court to seek redress, for it would actually prohibit them from letting a jury of their peers decide if a gun store or a manufacturer was negligent.
If this legislation passes, one could still go to court over a toy gun but not a real gun. I think that is wrong.
My amendment is to make sure the sniper victims and their families have a right to go to court. Before I tell my colleagues about those families, let me tell my colleagues what my amendment will do. My amendment protects the legal rights of the families. It allows current and future cases by sniper victims and their families to proceed.
Currently, one case is pending in Washington State court. It creates an exemption to the text of S. 1805 for all cases involving a victim of John Allen Muhammad or Lee Boyd Malvo. This is a very narrowly drawn bill. It does not exempt any other cases. It does not impact on any of the legal standards of the bill, and it does not prevent a court from dismissing a case if there is no negligence.
What it does is create an exemption only, and I emphasize ``only,'' for cases involving a victim of John Allen Muhammad or Lee Boyd Malvo. This is the Maryland-DC-Virginia sniper case.
I in no way want to create any ambiguity in this bill or create a loophole in this bill. But this is a very serious matter. I am here in behalf of those families.
Conrad Johnson, who was the sniper's last victim, I remember hearing the news when he was shot at a bus stop in Montgomery County. He was killed by the sniper just as he was getting ready to get on his route. He was so beloved in that community that 2,000 people came to his funeral. He drove this route for so many years. They loved him. Thirty members of his family gathered at the hospital after he was shot. He was always finding ways to take care of his family and his community. Conrad Johnson was one of the many Marylanders whose families are still grieving because of this reign of terror that gripped their State. Five Maryland families lost their loved ones in the sniper's first 24 hours.
Today I stand here for the rights of those families, to have their day in court: the rights of Jim Martin's family; he was shot when he stopped to buy groceries for his church program; James ``Sonny'' Buchanan, a landscape architect who was soon to be married; or the husband and the 7-year-old son of Sarah Ramos, who was shot 25 minutes later as she sat on a bench waiting for a ride to go to her babysitting job; also for the little boy named Iran Brown, who was shot in the chest as he was dropped off to go into middle school. Thanks to a guardian angel, it was his aunt, a nurse, who was with him that day when he was dropped off so she could sweep him up and be with him as he lay hemorrhaging in the hospital. Thank God, for the genius of American medicine that little boy is alive.
Family after family has endured incredible pain. Also, there are other cases that are pending. These families have been through so much they can never recover their tremendous loss. We owe it to them to make sure they have their day in court. That is why my amendment is offered to protect them, and that is why it is in such plain and simple language. It is limited to victims of John Muhammad and Lee Boyd Malvo. I don't need any legal experts to interpret this amendment. No judge has to decide if the case fits one exemption or another. That is because, under my amendment, any case involving them must proceed.
This is very serious. When we look at the matter, there is evidence that indicates the snipers bought something called a Bushmaster from the Bull's Eye Shooter Supply in Tacoma, WA. The Bull's Eye Shooter Supply Company had lost the assault rifle used by the sniper victim. In 3 years, it managed to lose 237 other guns. Imagine a gunshop that not only couldn't find records on this gun, it had lost 237 guns.
I am not going to prejudge cases, but I am going to point fingers. Something was terribly, terribly wrong at this place.
When we look at this, Bull's Eye could not account for 238 guns. Bull's Eye's missing gun rate was greater than 99 percent of all Federal arms licenses. Eighty percent of all dealers that sell at least 50 firearms a year can provide records to account for every one of them. Why couldn't that happen there?
There is item after item about this case. When you look at Malvo and look at Muhammad, what you find is the snipers obtained a one-shot, one-kill assault weapon that was from the Bull's Eye Shooter.
When we look at their records, we find that Muhammad was under a domestic violence protective order and Malvo was both a juvenile and an illegal alien.
How did they get their hands on these guns? That is for law enforcement to decide. That is how our legal process should follow its regular order, to seek redress. But this points out a set of terrible situations that led to the death of these 10 people in our region. This is why I am offering this amendment. After the deaths of these wonderful people, their families should have redress in court. The boy who was shot in his chest and is still recovering, though at school, should have redress.
I am going to be very clear that in this bill we do not create ambiguity, confusion, or something that would derail this. I urge the Senate to adopt my amendment and to allow the cases affecting this particular group of people to be able to proceed without prejudice or without any unintended consequences of this legislation.
I yield the floor and reserve such time as I have.
The Senator does have other speakers.
I yield to the Senator from Illinois, an outspoken advocate on this issue.
I yield such time as he may consume to the Senator from Rhode Island.
Mr. President, I have two legal opinions, one from Lloyd Cutler, a very distinguished American lawyer who has served as White House counsel to a President, who says that S. 1805 contains language that would require the dismissal of the Johnson case. I have another legal opinion from Boise, Schiller & Flexner who essentially say the exceptions would only preserve civil claims brought under other kinds of law. Other than that, what they are saying is this would preempt their ability to bring this case.
The opinions clearly state that section 4 on page 7 articulated by my esteemed colleague does not hold water. It does not protect the victims of Malvo and Muhammad because it is in such plain English limited to those cases by the name of the perpetrator and predator. This does not create a loophole.
Talk about loophole, talk about the gun shield loophole, talk about all the other loopholes in the gun bills. My amendment does not create a loophole.
The legal opinions show there is ambiguity in S. 1805 and that section 4 could preempt the ability of these families to bring this case.
The distinguished Senator from Idaho has his opinion. I have my two legal opinions that show that there is confusion and honest disagreement about the bill. That is why the Mikulski amendment is necessary, to clear up the ambiguity on the matter of these cases committed by Malvo and Muhammad.
His point and my legal opinions prove the necessity of the amendment, to clear up the confusion, end the ambiguity, protect these victims and the families and their right to pursue.
I yield to the Senator from Illinois, a distinguished lawyer himself, to further amplify this argument.
Continuing my argument, there is ambiguity and there is honest disagreement. I know the Senator from Idaho might bring us a CRS opinion saying the cases might survive. My colleague from Rhode Island has an earlier CRS opinion that says the opposite. The point is, there is ambiguity both in the law and in opinions about the law.
My amendment is a simple, straightforward way to clear up the ambiguity and let these cases move forward.
Parliamentary inquiry: Did I do something wrong?
Excuse me, Senator. The Frist-Craig amendment is on what topic, sir?
What is the Frist-Craig amendment?
You want to conclude debate on this amendment.
I have no objection to that.
Mr. President, this amendment does nothing. It keeps the status quo of the bill, S. 1805. It restates what the bill says. It says that the sniper cases have to fit in to one of the exceptions that are described in section 4, paragraph 5. That is what it already says.
The legal experts that I have consulted and have consulted with the Brady organization believe that the cases do not fit. I understand that, under the amendment of the Senator from Idaho, the sniper cases will likely be dismissed. I am going to talk about the legal experts, but again the mere fact that we are having such intense debate shows the ambiguity and confusion, which is why the Mikulski amendment is needed.
Now I will go to the opinion of Boies, Schiller & Flexner, a distinguished law firm. What they tell us is, according to the terms of S. 1805, it would foreclose and require the immediate dismissal of any State or Federal qualified civil liability action which the statute defines to include a civil action brought by any person against the manufacturer or seller for damages resulting from the criminal or unlawful use. They are saying it is going to be dismissed.
They then say when one goes to all of the prohibitions, they believe that because of the way it is drafted, particularly the items in the exception, that it expressly disclaims any intention to create causes of actions or remedies. The above-described exceptions would only preserve civil claims brought under otherwise applicable State or Federal law. Other than that, the proposed legislation would preempt as a matter of Federal law the State or Federal lawsuits against irresponsible sellers, manufacturers, or so on.
What they are saying is this would require an immediate dismissal of the sniper victims' claims. We cannot do this. According to the legal experts, close examination of the exceptions enumerated in section 4 of the proposed immunity, which they are trying to shoehorn in--they are trying to shoehorn Malvo in; they are trying to shoehorn Muhammad in to these exceptions. These exceptions reveal that none would appear to preserve the claims brought by the victims of the sniper attacks and their families against the parties responsible for permitting the snipers to obtain these murder weapons.
In fact, they go on to say:
In fact, the passage of S. 1805 would likely compel the
judge in the sniper case immediately to dismiss those claims.
They refer then to section (5)(A) and there are paragraphs. That proposed legislation would prove those provisions contain only the exceptions that even conceivably apply to the snipers' case.
I could go on. This is a 13-page legal opinion. It is not appropriate for me to read the whole opinion, but the statutory violation exception embodied in paragraph (5)(A) will not save the snipers victims' claims.
The plain language of section (5)(A)(iii) would appear to dictate the same result in the sniper case.
Despite the above-discussed evidence of the Bull's Eye
numerous failings as a gun dealer, there is no reason to
believe that the plaintiffs in the sniper case will be
allowed to show that Bull's Eye violated any State or Federal
statute. . . .Indeed, after his arrest, Malvo admitted that
he shoplifted the weapon from Bull's Eye in the summer of
2002. Although the plaintiffs claim that Bull's Eye's lax
security practices permitted Malvo to acquire the weapon,
. . .
Again, we are not trying the case here but, yes, he stole the gun. There are 237 guns missing from that same gunshop. Something was pretty sloppy there. Somebody was pretty negligent there. Something was terribly wrong that 238 people could steal guns, including a juvenile illegal alien who was obviously walking around a gunshop if he shoplifted it.
What we are talking about is the statutory violation exception embodied in (5)(A) would totally blow the snipers victims' claims.
Again, it is being tried in the courts, and I want it to be tried in the courts. Maybe the kid did not shoplift it, but somehow or another in that gunshop in Tacoma, WA, with 238 guns missing, something went terribly wrong. They should have their day in court to at least raise whether there was these issues of negligence.
I really do believe the Frist-Craig amendment would gut their ability to move ahead. It is trying to shoehorn into these exceptions and yet at the same time these very exceptions would prohibit them from bringing their claim. I really ask on behalf of these families to be able to do this.
Also, in another section, the negligent entrustment/negligence per se exceptions embodied in paragraph (5)(A)(iii) will not save them. As an initial matter, these exceptions are limited to a seller, and it goes on and on. What it says in a nutshell is that it would preclude them from moving forward.
For the information of my colleagues, this legal opinion letter was printed in yesterday's Record.
I also acknowledge that the Senator from Idaho has a different view than this legal opinion but that is the point of the amendment. I have a legal opinion. He has his expertise and the CRS opinion.
I think it is the opinion of the American people, that when someone brings a whole community to a paralyzing halt, when people have been ghoulishly and grimly shot down in a deliberate, predatory, and cruel manner that in this country one ought to at least be able to go to court to seek some redress. All I am doing is preserving their right to do so.
When we say we want to stand up for America, I am standing not only for these victims but I am standing up to keep the courthouse door open to them, and that is really what the rule of law should mean in the United States of America.
I yield the floor.
Yes, it gives a whole set of other obstacles.
Yes, and they have also filed suits. What we are concerned with is this bill will preempt those suits. They will be thrown out. They will be dismissed and the families will face yet another injustice at the hands of the Congress.
Mr. President, my amendment, I believe, is far superior to the amendment the Senate just adopted. It is a simple, straightforward amendment. It exempts from the bill all cases related to those committed by the despicable predators John Malvo and John Muhammad. This is a very specific, very limited exemption. I urge the Senators to consider it.
If we really want to honor the victims of the sniper cases, please give them the opportunity to pursue their cases in court. We have a substantial legal opinion from an eminent scholar such as Lloyd Cutler, who says if this bill passes, and passes with Frist-Craig, the victims' cases will be thrown out of court absolutely or, at the very least, be left in great ambiguity.
Please, let us do justice to the victims and at least give them the opportunity to seek justice.