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A lack of time, a rapidly approaching election and the Washington, D.C., sniper will likely doom a congressional effort to cap attorney fees and to shift costs to losing plaintiffs in suits against the gun industry. And a broader effort to immunize the industry from what proponents call “junk lawsuits” for the criminal use or illegal misuse of guns also may fall victim to the same trio of factors. The attorney fee proposal — S. 1996, or the “Second Amendment Preservation Act of 2002″ — lost its prime sponsor when U.S. Sen. Bob Smith, R-N.H., lost his primary election bid. “It would be up to someone else to take the lead” in the next Congress, says Smith’s staffer, Eryn Witcher. That could be his two co-sponsors and gun industry advocates, Wyoming Republican Sens. Mike Enzi and Craig Thomas. The bill would limit plaintiffs’ attorney fees in suits or settlements against gun manufacturers, importers and dealers for injuries caused by the unlawful use of a firearm by a purchaser or other person. Fees would be set at the lesser of $150 per hour plus actual expenses or 10 percent of the amount that the plaintiff receives. But plaintiffs would be required to reimburse the defendant for “reasonable attorney’s fees and court costs” if a court finds that defendant is not wholly or primarily liable. The proposed limits would apply in actions seeking damages in excess of $1 million or 50 percent of the defendant’s net assets. The bill also has a provision that requires any court decision curtailing the availability of firearms to be appealed directly to the U.S. Supreme Court. The impetus for the bill can be found in its findings in which the lawmakers say that fairness requires that “a unit of government that undertakes an unsuccessful ‘fishing expedition’ against a firearm manufacturer, importer, or dealer bear the cost of defending against its frivolous and unwarranted civil action.” In co-sponsoring S. 1996 and the broader immunity bill — S. 2268 — Enzi noted that 30 cities have brought more than 20 lawsuits against gun manufacturers seeking damages for the unlawful use of their products. “These lawsuits are putting firearm manufacturers and dealers out of business, when all they are doing is lawfully selling their product,” said Enzi. “No one condones the misuse of a firearm, but it’s the individual that should be accountable for his or her actions, not businesses that some attorney sees as a deep pocket. Tying up our courts with these frivolous lawsuits is just another way gun control advocates are trying to restrict our Second Amendment freedoms.” The total number of government entities bringing suits thus far is 34, and the Legal Action Project of the Brady Center to Prevent Gun Violence is handling suits by 25 government entities, according to the center. The broader immunity bill has a companion measure in the House — H.R. 2037, sponsored by Rep. Cliff Stearns, R-Fla. — and that bill has made the most progress. It was voted out of committee and sent to the House floor this month, where it awaits final action. After the committee’s action, Stearns said, “These lawsuits have no legal merit. They merely are attempts to bypass the legislative process in order to impose gun control through the courts.” But the center disputes its opponents’ claim that the suits are frivolous. Of the 34 government entities suing the gun industry as of June, the center says, 18 have won favorable rulings on the legal merits of their claims and continue to move ahead. Of the others, five have not yet had a decision on a motion to dismiss, and four have had their claims dismissed but are appealing those rulings. Seven cases have ended without success. The attorney fee measure — S. 1996 — is “yet another piece of special interest legislation that would unfairly protect the gun industry,” said the center’s Nancy Hwa. “There aren’t even reciprocal clauses applying the same standards to defendants.” The recent sniper shootings terrorizing the Washington metropolitan area have had a cooling effect on pro-gun legislation in Congress, Hwa said. “Not only that, it looks like Congress might pass some gun control legislation,” she said. “Late yesterday the House passed the ‘Our Lady of Peace Act’ which involves background checks.” Hwa was referring to the action on Oct. 15 on H.R. 4757, which would expand the national instant criminal background check system by placing new reporting requirements on federal agencies and states and by giving grants to states for upgrading their identification technology. “It’s clearly the sniper shootings, in addition to the upcoming elections, that has stopped Congress on the other gun bills,” said Hwa.

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