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After Danny Guzman was shot to death outside a Worcester, Mass., nightclub six years ago, his family did what few grieving families do: They sued the gun maker. The Guzmans’ attorney, Hector Pineiro, contends that internal security measures at gun maker Kahr Arms were so lax that one of its employees was able to systematically steal the 9 mm guns’ component parts and assemble them outside the factory before their serial numbers were affixed. One of those guns, police have determined, was used to kill Guzman. The Guzman lawsuit, as well as larger, pending lawsuits against the industry by several municipalities, including the District of Columbia and New York City, would come to an abrupt halt if legislation Senate Majority Leader Bill Frist (R-Tenn.) wants to bring to the Senate floor as early as this week passes. The bill would effectively ban lawsuits against gun manufacturers when the guns they make are not used for legitimate self-defense, recreational, or sporting purposes. Gun control advocates and gun supporters alike say the legislation, known as the Protection of Lawful Commerce in Arms Act, is one of a handful of bills where the GOP’s net gain of four — the party now holds 55 Senate seats — could spell the difference between last Congress’ defeat of gun legislation and a victory this year. And this version may be the most sweeping. Sponsored by National Rifle Association board member Sen. Larry Craig (R-Idaho), the bill already has 56 additional co-sponsors in the Senate, where its success or failure will be decided. The sponsors include a crucial handful of Democrats, such as Sen. Mark Pryor of Arkansas, Nebraska’s Sen. Ben Nelson, and Sen. Max Baucus of Montana. The legislation’s support in the House, where it has passed in the two previous Congresses and last month was voted out of the House Judiciary Committee, has never been in doubt. Opponents say the bill will not only immunize an entire industry against negligence lawsuits, but it will seriously undermine the ability of the Bureau of Alcohol, Tobacco, Firearms and Explosives to revoke the licenses of rogue gun dealers. Like last year, when the legislation was abruptly voted down after amendments closing a gun show loophole and reinstating the assault weapons ban were added, this year’s vote will also depend on the ability of the bill’s supporters to keep it amendment-free. For both the NRA and the National Shooting Sports Foundation, the trade association that represents gun manufacturers, the legislation is one of their top legislative priorities, and they are bringing all of their substantial grass-roots power to bear. In addition to its longtime outside lobbyist, the Federalist Group, which it pays $360,000 a year, the NRA recently brought on, for $10,000 a month, Sonnenschein Nath & Rosenthal’s Todd Weiss. “At this point we are trying to rally all the R’s and all the D’s we can,” Weiss says. A one-time top aide to former Sen. Tim Hutchinson (R-Ark.), Weiss was added to bolster the NRA’s Senate muscle ahead of a vote on the gun bill. “It’s the one place where a lot of Democrats go South on the trial lawyers because they’re afraid of the gun lobby,” notes Victor Schwartz, a partner in the D.C. office of Shook, Hardy & Bacon and a longtime tort reform advocate who is not working on the bill. “I don’t think there’s anyone else involved in the tort reform movement that has the strength the gun lobby has.” Indeed, for Democrats from strong pro-gun states in the Midwest and southern states like Louisiana and Arkansas, there’s little reason not to support the bill. “Guys who come from states where the Second Amendment is the only amendment, it doesn’t hurt them at all,” notes James Pasco Jr., a former ATF assistant director who now runs the Fraternal Order of Police. The FOP has taken no position on the bill. FLASHPOINTS The bills — the House and Senate versions are identical — would prohibit “qualified civil liability actions” in federal and state courts against firearm or ammunition manufacturers, distributors, dealers, or importers when their products are unlawfully or criminally used. But in what Dennis Henigan of the Brady Campaign to Prevent Gun Violence says is a radical departure from previous bills, this year’s version defines “qualified civil liability actions” not just as civil lawsuits but as “an administrative proceeding” — a term that goes undefined in the legislation. And that, Henigan says, effectively strips enforcement power from the ATF, the federal agency that sometimes uses administrative proceedings to revoke gun dealers’ licenses and to enforce the nation’s gun control laws. An ATF spokesman said the agency would not comment on pending legislation. There are exceptions to the ban on lawsuits if, for example, a gun maker breaks the law or sells a defective weapon. But they are exceptions to civil liability actions, notes Henigan, not exceptions to administrative proceedings. The bill’s supporters call Henigan’s reading fantastical. The administrative proceedings language, says the bill’s chief House sponsor, nine-term Florida Republican Rep. Clifford Stearns, was intended to deal with “any possible avenue that a trial lawyer could use to go after a gun dealer,” like the enforcement of a zoning violation — an administrative proceeding that could lead to a dealer losing his local business license. “It’s to be read in that context,” he says. Maybe so, responds Henigan. But a court trying to interpret a statute must rely on the plain wording of the law. “They can say what they intended all they want. But what the bill says is a direct and immediate threat to enforcement actions by the ATF,” says Henigan. “The word ‘zoning’ isn’t even in the bill.” D.C. IN THE CROSS HAIRS Still, it was a raft of municipal lawsuits against the gun industry that prompted the bill’s drafting in the first place, as long ago as 2001 in the House and 2003 in the Senate. So far, none of the 23 lawsuits filed by the 33 cities and counties, starting with New Orleans in 1998, have resulted in successful verdicts. Indeed, according to figures provided by the Brady Center’s Legal Action Project, nine were dismissed on pleadings or summary judgment, five were dismissed because of state immunity laws, and another five were voluntarily dismissed after the cities won the right to go to trial but chose not to spend money on the case. That leaves four lawsuits: Gary, Ind.; Cleveland; New York City; and the District, where the D.C. Court of Appeals in April upheld the constitutionality of a special D.C. law that imposes absolute liability on manufacturers of assault weapons, regardless of proof of fault, for damages and medical costs caused by the weapons. The D.C. case, says the National Shooting Sports Foundation’s Lawrence Keane, could conceivably bankrupt the industry. His group has hired former U.S. Solicitor General Theodore Olson of Gibson, Dunn & Crutcher to file a writ of certiorari with the Supreme Court by July 20, asking the Court to look at the D.C. law’s constitutionality. Thomas Dupree Jr., a Gibson, Dunn senior associate working with Olson, says their petition will argue that the D.C. law will in effect regulate the business decisions, and hence interstate commerce, of a gun maker in another state, something only Congress can do. All this, of course, becomes moot if the gun liability bill, which President George W. Bush has publicly supported, passes the Senate. And that will depend, like it did last year, on the outcome of a handful of controversial amendments to come: renewing the ban on assault weapons; closing the gun show loophole so that all gun sales — not just those by licensed dealers — would require background checks; and a new and expected amendment that would require the registration of future purchases of .50-caliber sniper rifles under the 1934 National Firearms Act. Last year, after amendments reinstating the assault weapons ban and plugging the gun show loophole passed 52-47 and 53-46, respectively, Sen. Craig and the NRA took the extraordinary step of asking the bill’s supporters to vote the bill down. They did, by a 92-8 margin, and it died on the Senate floor. This year, “when you add a minimum of four electoral upgrades,” says Chuck Cunningham, the NRA’s chief federal lobbyist, using his expression for new Republican Senators, “I feel like we’re in pretty good shape.” The new GOP seats make Cunningham optimistic that an amendment that would require the registration of long-range .50-caliber military sniper rifles, which critics say are so powerful they could ignite an airplane’s fuel tank, would fail. It’s a legal gun, Cunningham adds, and should be treated as such. “The .50-caliber is more of a novelty — it’s a several-thousand-dollar gun,” he says. “Why do you take your kids to school in a Porsche that can go 150 miles per hour? Because you’re a law-abiding citizen and you can.”
T.R. Goldman can be contacted at [email protected].

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