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PROTECTION OF LAWFUL COMMERCE

IN ARMS ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

H.R. 1036

APRIL 2, 2003

Serial No. 16

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JOHN R. CARTER, Texas 

TOM FEENEY, Florida 

MARSHA BLACKBURN, Tennessee 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

CHRIS CANNON, Utah, Chairman

HOWARD COBLE, North Carolina 

JEFF FLAKE, Arizona 

JOHN R. CARTER, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE CHABOT, Ohio 

TOM FEENEY, Florida 

MELVIN L. WATT, North Carolina 

JERROLD NADLER, New York 

TAMMY BALDWIN, Wisconsin 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

DIANE K. TAYLOR, Counsel 

JAMES DALEY, Full Committee Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

C O N T E N T S 

APRIL 2, 2003

OPENING STATEMENT 

Page 

The Honorable Chris Cannon, a Representative in Congress From the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 1

The Honorable Melvin L. Watt, a Representative in Congress From the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 3

The Honorable Howard Coble, a Representative in Congress From the State 

of North Carolina ................................................................................................. 4

The Honorable Steve Chabot, a Representative in Congress From the State 

of Ohio ................................................................................................................... 4

WITNESSES 

Mr. Carlton Chen, General Counsel, Colt Manufacturing Company, Inc. 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 7

Mr. Walter Olson, Senior Fellow, The Manhattan Institute 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 20

Mr. David Lemongello, Nutley, NJ 

Oral Testimony ..................................................................................................... 33

Prepared Statement ............................................................................................. 35

Lawrence G. Keane, Vice President and General Counsel, National Shooting 

Sport Foundation 

Oral Testimony ..................................................................................................... 36

Prepared Statement ............................................................................................. 39

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Cover Letter from Carlton Chen to Ms. Christine Baldwin, Committee on 

the Judiciary, Subcommittee on Commercial and Administrative Law .......... 61

Letter submitted by Representative Chris Cannon, on behalf of Minority 

Members, to Carlton Chen .................................................................................. 62

Responses to questions submitted by Representative Chris Cannon to Carlton 

Chen ...................................................................................................................... 63

Letter submitted by Representative Chris Cannon, on behalf of Minority 

Members, to Walter Olson ................................................................................... 158

Responses to questions submitted by Representative Chris Cannon to Walter 

Olson ..................................................................................................................... 159

Letter submitted by Representative Chris Cannon, on behalf of Minority 

Members, to David Lemongello ........................................................................... 160

Response to questions submitted by Representative Chris Cannon to David 

Lemongello ............................................................................................................ 161

Letter submitted by Representative Chris Cannon, on behalf of Minority 

Members, to Lawrence G. Keane ........................................................................ 162

Response to questions submitted by Representative Chris Cannon to Lawrence G. Keane ..................................................................................................... 163

(1)

PROTECTION OF LAWFUL COMMERCE 

IN ARMS ACT 

WEDNESDAY, APRIL 2, 2003

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 10 a.m., in Room 

2141, Rayburn House Office Building, Hon. Chris Cannon [Chairman of the Subcommittee] presiding. 

Mr. CANNON. Morning, ladies and gentlemen. This hearing of the 

Subcommittee on Commercial and Administrative Law will now 

come to order. We consider today H.R. 1036, the Protection of Lawful Commerce in Arms Act, which was introduced on February 27 

by Representative Stearns. It currently has 247 cosponsors, including me. 

H.R. 1036 provides that a qualified civil liability action cannot be 

brought in any State or Federal court. Qualified civil liability action is defined as a civil action brought against any person or by 

any person against a manufacturer or seller of firearms or ammunition for damages resulting from the criminal or unlawful misuse 

of such products. 

However, such term does not include an action against a person 

who transfers a firearm or ammunition knowing that it will be 

used to commit a crime of violence or drug trafficking crime or 

comparable or identical State felony law. 

It also does not include an action brought against a seller for 

negligent entrustment or negligence per se. The bill also includes 

several additional exceptions, including an exception for action in 

which a manufacturer or seller of a qualified product knowingly 

and willfully violates a State or Federal statute applicable to sales 

or marketing when such violation was a proximate cause of harm 

for which relief is sought. 

Other exceptions include actions for breach of contract or warranty in connection with the purchase of a firearm or ammunition 

and an exception for damages resulting directly from a defect in design or manufacturer of a firearm or ammunition when used as intended. 

The bill also makes clear that only licensed manufacturers and 

sellers are covered by the bill. Tort law rests upon a foundation of 

personal responsibility in which a product may not be defined as 

defective unless there is something wrong with the product rather 

than with the product’s user. 

2

However, in the last several years lawsuits have been filed 

against the firearms industry on a series of liability that hold it liable for the actions of others who use their products in a criminal 

or unlawful manner. Such lawsuits threaten to separate tort law 

from its basis in personal responsibility and to force firearms manufacturers into bankruptcy, leaving potential plaintiffs asserting 

traditional claims of product manufacturing defects unable to recover more than pennies on the dollar, if that, in Federal Bankruptcy Court. 

While some of these lawsuits have been dismissed and some 

States have acted to limit them in one way or another, the fact remains that these lawsuits continue to be aggressively pursued. For 

example, one of the personal injury lawyers suing the firearms industry, John Coale, told the Washington Post, ‘‘The legal fees alone 

are enough to bankrupt the industry.’’ I might just point out that the tobacco litigation, the cost to defend those are about $600 million, about three times what the total profits of the firearms industry in America is. 

Dave Koppel, an Adjunct Professor at New York University Law 

School, also stated that the cities suing the firearms industry, 

‘‘Don’t even have to win. All they have to do is keep suing. They 

will kill the industry with the cost to defend all the lawsuits.’’ lawsuits seeking to hold the firearms industry responsible for the 

criminal and unlawful use of its products are the attempts to accomplish through litigation what has not been achieved by legislation and the democratic process. As has been explained by one Federal judge, ‘‘The plaintiffs’ attorneys simply want to eliminate 

handguns.’’ Under the currently unregulated tort system, personal injury 

lawyers are seeking to obtain through the courts stringent limits 

on the sale and distribution of firearms beyond the court’s jurisdictional boundaries. Such a State lawsuit in a single county could destroy a national industry and deny citizens everywhere the right to 

keep and bear arms guaranteed by the Constitution. 

Insofar as these lawsuits have the practical effect of burdening 

interstate commerce in firearms, Congress has the authority to act 

under the commerce clause of the Constitution. Such lawsuits also 

directly implicate core Federalism principles articulated by the Supreme Court which has made clear that, ‘‘One State’s power to impose burdens on the interstate market is not only subordinate to 

the Federal power over interstate commerce, but it is also constrained by the need to respect the interests of other States.’’. 

If the judicial system is allowed to eliminate the firearms industry based on legal theories holding manufacturers liable for the 

misuse of their products, it is also likely that similar liability will 

be applied to an infinitely long list of other industries whose products are statistically associated with misuse. 

Witness the recent litigation against the fast food industry. According to a recent article in the Fortune Magazine, ‘‘On August 3, 

2000, the parity newspaper, The Onion, ran a joke article under 

the headline, ’Hersheys ordered to pay obese Americans $135 billion’.’’ some joke. Last summer New York City attorney Sam Hirsch 

filed a strikingly similar lawsuit against McDonalds. News of the 

lawsuit drew hoots of derision, but food industry executives aren’t 

3

laughing or shouldn’t be. No matter what happens with Hirsch’s 

suit, he has tapped into something very big.’’ And that is all a 

quote. 

Congress must begin to stem the slide down this slippery slope. 

It can do that by fulfilling its constitutional duty and exercising its 

authority under the commerce clause to prevent a few States from 

bankrupting the national firearms industry and denying all Americans their fundamental right to bear arms. 

I now yield to Mr. Watt, the Ranking Member of the Subcommittee, for an opening statement. 

Mr. WATT. Thank you, Mr. Chairman. I will be brief, I hope. I 

just want to make a couple of points. First of all, we didn’t get the 

testimony of the witnesses until late last evening. So it is kind of 

hard for us to prepare for a hearing of this—and take it seriously 

if we start reading the witness’ testimony and trying to think about 

what they are saying at 10 or 11 o’clock at night before the hearing 

takes place the following morning at 10 o’clock. I want to—— Mr. CANNON. Would the gentleman yield? 

Mr. WATT. Yes. 

Mr. CANNON. My understanding is that the witness was in trial 

and is apologetic, and we apologize on our side for the lateness of 

that testimony, but I don’t—it was pretty much unavoidable. We 

appreciate your understanding on that. 

Mr. WATT. Yes. And I am not going to belabor that point, but I 

just—I did want to point that out, that if we are going to take a 

matter such as this as a serious hearing, we really need to have 

the statements earlier. And I will let that go. 

Second, I always wonder about the process by which things get 

done. I wondered how medical negligence ended up in the Subcommittee, and I wonder how this ends up in this Subcommittee. 

I guess my own personal feeling is that sometimes bills get sent to 

the Subcommittee as opposed to being dealt with at the full Committee, because they—it is kind of the minor league circuit. You 

send it out there and see how it resonates, and if it resonates and 

it does well, then maybe you make the big leagues, or maybe it is 

like a Broadway musical that you send out to one of these small 

cities to try out. If it is successful there, then it makes Broadway. 

I can only hope that this bill stays in the minor leagues and 

doesn’t make it to Broadway. I think it is unnecessary and if it is 

necessary, then I guess the Chairman has prepared us for the prospect that it will be followed soon by additional legislation that prohibits suits about obesity against McDonalds and fast food chains 

and other—in many other areas. 

My sense is that if something is lawful and somebody files a lawsuit about it, ultimately that lawsuit is either going to be declared 

frivolous or it is going to be dismissed anyway, and for us to pass 

a bill that says that somebody is protected from doing something 

that is lawful, I think is really an unnecessary exercise. 

But not withstanding that, particularly for the two witness statements that I didn’t get until this morning, I will be happy in waiting to hear their testimony, because I certainly haven’t had a 

chance to read it. And I will be trying to keep an open mind as we 

go through this process. That is what hearings are for. We are here 

in sending up a trial balloon, I presume, and this is the place to 

4

do it. So I am here, and I will try to be attentive and open minded 

about it. 

Mr. CANNON. Would the gentleman yield? 

Mr. WATT. Yes. 

Mr. CANNON. I will tell you the gentleman is not one of the 247 

cosponsors of this. 

Mr. WATT. No. I am not one of the 247 cosponsors of this minor 

league bill. Right. 

Mr. CANNON. I thank the gentleman, and the gentleman’s time 

is expired. 

I want to note that we have Mr. Delahunt from Massachusetts, 

Mr. Coble from South Carolina—North Carolina. My goodness, that 

is a sin. Nothing could be finer. We had Mr. Flake here, and I assume he will return, from Arizona. Mr. Carter from Texas. Mr. 

Chabot from Ohio. 

Do any of the Members of the panel wish to make an opening 

statement? 

Mr. COBLE. Very briefly, Mr. Chairman. 

Mr. CANNON. Mr. Coble is recognized for 5 minutes. 

Mr. COBLE. I won’t take anywhere near 5 minutes. 

This is a very important hearing, and I don’t mean to speak for 

my friend from North Carolina, but when Mr. Watt said that—I 

want the Chairman to hear this. Mr. Chairman, when Mr. Watt 

said minor leagues, I——

Mr. WATT. I don’t think the Chairman wants to hear what you 

are saying. 

Mr. COBLE. I think he does. What I want to say is, I feel sure 

that my friend from North Carolina would agree with me that you 

are indeed a major league Chairman even though we may be in the 

minor leagues. But I won’t make an opening statement. I look forward to hearing the testimony from the witnesses. 

Mr. WATT. If the gentleman would yield, I will second that emotion. We have got a major league Chairman. Every once in a while 

you will get a—— Mr. CANNON. I expect some pretty good hitting from the bench 

today. 

Mr. COBLE. And now my friend from Massachusetts will accuse 

me of sucking up to the Chairman. 

Mr. DELAHUNT. We do have a major league Chairman. Maybe 

this is a minor league bill. I don’t know but—— Mr. COBLE. Then I will yield back. 

Mr. DELAHUNT. Okay. I will yield back then, too. 

Mr. CANNON. Mr. Delahunt, you don’t have an opening statement, then. 

Does anyone else seek recognition? 

Mr. Chabot. 

Mr. CHABOT. Mr. Chairman, representing Cincinnati, the home 

of the Cincinnati Reds, the first major league baseball team. I just 

want to tell you whether it is minor league or major league, I just 

think it is an honor to be here today, and it is a bill that deserves 

consideration. Being one of those 247 cosponsors of the bill, we are 

glad you are taking it up today. 

Many of us, as the Chairman knows, we have a markup in International Relations Committee. We also have a war briefing at 

5

10:30. So many of us will be coming in and out and our absence 

is not because of the bill is—it is just a matter of we are being 

pulled in about three or four different directions here this morning 

at the same time. 

So thank you for holding this hearing. Yield back. 

Mr. CANNON. I thank the gentleman. 

I also want to recognize Mr. Feeney, the Vice Chairman of this 

Committee from Florida. Welcome. 

In addition to what you just said, Mr. Chabot, let me add that 

we have the Energy Bill Markup in the Resources Committee, and 

so we have a number of things going on, and as witnesses come 

and go, we understand and appreciate that. Let me just point out 

that we will use the 5-minute rule here today. So for the Members 

of the panel, if I tap the gavel, it is because your time has run. We 

would appreciate it if you would not just stop but finish up your 

thought and then draw a conclusion. We will do the same thing for 

questions, and if we could move the hearing expeditiously, that, I 

think, would be quite helpful given other constraints on everyone’s 

time today. 

Let me go ahead and introduce our witnesses. Our first witness 

is Mr. Carlton Chen, General Counsel of Colt Manufacturing Company, Inc. Mr. Chen has also been In-House Counsel for Olin Corporation, the Sara Lee Corporation and an attorney in private practice. He was a Root Tilden Scholar at the New York University 

School of Law and is an Eagle Scout. 

Our second witness is Walter Olson, who has been described as 

perhaps America’s leading authority in over litigation. He has written several books on the subject including the Rule of Lawyers 

which was published this year. 

Mr. Olson is a senior fellow at the Manhattan Institute, a frequent contributor to magazines and newspapers, including the New 

York Times and the Wall Street Journal. His Web site, 

overlawyered.com, for those who might have an interest launched 

in 1999, is widely acclaimed for its regular commentary on the litigation explosion and the need for legal reform. 

He will speak to the political dynamics of recent lawsuits against 

the firearms industry and its impact on the separation of powers. 

Our next witness is David Lemongello. 

In 1985, Mr. Lemongello entered the Police Academy and then 

served as a police officer for the Orange, New Jersey Police Department. A few years later he was promoted to detective. On January 

12, 2001, Mr. Lemongello was injured by a gun that exchanged several hands before coming into the possession of a criminal. He is 

currently an Executive Manager for Security Services at Estee 

Lauder in New York. 

Our final witness is Lawrence G. Keane. Mr. Keane is Vice President and General Counsel of the National Shooting Sports Foundation. The NSSF is the major trade association for the firearm and 

recreational shooting sports industry and has been named as a defendant in approximately half of the lawsuits filed against the firearm industry by various municipalities. 

Mr. Keane also serves on the Board of Directors of the Firearms 

Safety Education Foundation, a nonprofit 501(c)(3) charitable orgaVerDate 0ct 09 2002 14:01 Jun 12, 2003 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\COMM\040203\86266.000 HJUD1 PsN: 86266
6

nization dedicated to educating the public about firearms safety 

issues. 

Mr. CANNON. Mr. Chen, we recognize you for 5 minutes. 

STATEMENT OF CARLTON CHEN, GENERAL COUNSEL,

COLT MANUFACTURING COMPANY, INC. 

Mr. CHEN. Good morning. Chairman Cannon, Members of the 

Committee, Ladies and Gentlemen—my name is Carlton Chen. I 

am Vice President, General Counsel and Secretary of Colt Manufacturing Company and its subsidiary Colt Defense. 

Since 1836, the Colt companies, together with our predecessors, 

have been manufacturing small arms for military, law enforcement 

and commercial use. Today approximately 70 percent of our output 

at our Connecticut-based plant is devoted to supplying the M–16 

rifle, the M–4 carbine and the M–203 grenade launcher to all of the 

branches of the United States Armed Forces. 

We also supply similar small arms to many of our law enforcement agencies and our allies around the world. In our heyday, we 

employed over 1600 union workers. Organized by the UAW today, 

we now employ in West Hartford less than 400 members of Local 

376 and for both companies employ under 500 union and nonunion 

personnel. Our combined annual sales revenue is less than $100 

million. 

Since 1998, we at Colt have been defending ourselves against a 

multitude of lawsuits brought by Government entities, organizations and individuals seeking to blame the firearms industry, including Colt, for the criminal and wrongful misuse of firearms in 

the United States. To blame Colt for the criminal misuse of firearms that are lawfully manufactured and sold is unjust. It is also 

threatening to our very existence. For a company that emerged 

from bankruptcy in 1994, we have been fighting for our lives 

against these lawsuits, diverting time, money and other of our limited resources to defend ourselves. 

As I walk through our plant, Colt workers stop me to ask how 

the war is going, and we post announcements about the successes 

and battles that we are fighting, but the war that our workers are 

asking or reading about is not the Iraqi war. It is the war we are 

fighting against these plaintiffs, spurred on by plaintiffs’ trial lawyers. We and many others in the industry have been fighting now 

for 8 years, beginning with the Hamilton case in which the plaintiffs claim that we manufacturers negligently distribute our firearms. 

While the jury in that case found some of the manufacturers liable, the verdicts were properly reversed on appeal. 

The same plaintiff’s lawyer decided to bring a similar case before 

the same trial judge. Ironically, they are beginning the 3rd day of 

trial this morning in the NAACP case based on similar theories already rejected by the U.S. Court of Appeals. 

While we are resolved not to wear down, there is a cost to this 

war. This war is hindering companies like Colt from engaging in 

a legitimate business making a lawful product. The existence of 

these lawsuits are thwarting our ability to raise new capital, borrow money, establish credit, obtain insurance, attract new employees, retain valued employees, and invest in new machinery and 

7

equipment in the same manner that companies in other industries 

are able to do without these attacks against their industry. 

I come here today to ask you to please support H.R. 1036. This 

bill would protect legitimate businesses such as Colt that provide 

hundreds of thousands of jobs for our citizens from the assembler 

to the polisher, to the tool and die maker and from our cafeteria 

workers to the people who fill our snack vending machines, even 

our suppliers. 

If enacted, this bill would restore the rule of law and protect 

manufacturers and sellers in the firearms and ammunition industries who act legally from being harassed by frivolous lawsuits. 

With the terrorist attacks on 9/11 and now our involvement in 

the Iraqi war, Colt as a military defense contractor has been requested by the Department of Defense to provide DPAS assistance. 

This priority assistance of the U.S. Government under defense priorities and allocation means that we must give preference to the 

U.S. Government over all of our customers to fulfill the DOD orders for small arms and spares under the Defense Production Act. 

Unfortunately, we cannot drop our defense in these lawsuits while 

under DPAS. 

We are dutifully helping to defend our country when attacked 

and in times of war. I ask that each of you help us in our time of 

war so that we can focus on making the best small arms available 

for our men and women in uniform. 

In conclusion, without this Federal legislation, the survival of 

Colt, our firearms and ammunition industries and all the jobs, 

taxes and commerce that we contribute to the U.S. economy are 

threatened. 

Before I end, I would like to make not only my written testimony 

part of the record but also a letter that was written by Mr. Russ 

See, the President of UAW Local 376 in support of this bill, as well 

as the Colt product catalogs a part of the record. Thank you. 

Mr. CANNON. Thank you, Mr. Chen. 

[The prepared statement of Mr. Chen follows:]

PREPARED STATEMENT OF CARLTON S. CHEN

Chairman Cannon, Members of the Committee, my name is Carlton Chen. I am 

Vice President, General Counsel and Secretary of Colt’s Manufacturing Company, 

Inc. and its subsidiary Colt Defense LLC. The Colt companies together with our 

predecessors have been manufacturing small arms for the military, law enforcement 

and commercial use since 1836. Samuel Colt, an American industrialist who is credited with beginning the American Industrial Revolution, founded our firearms business in New Jersey and then moved it to Connecticut, which we call our home 

today. 

As some of you will remember, Colt supplied the M1911 pistol as the standard 

sidearm to all branches of the U.S. Armed Forces during World War I, World War 

II, the Korean War and the Vietnam conflict. Today, approximately 70% of our output at our Connecticut-based manufacturing facility is devoted to supplying the M16 

Rifle, the M4 Carbine and the M203 Grenade Launcher to all of the branches of 

the U.S. Armed Forces. We also supply similar small arms to many of our law enforcement agencies and our allies around the world. In addition, we manufacture 

small arms for the civilian market. Many of our handguns are collectible and replicas. 

In our heyday, we employed over 1,600 union workers in Hartford, Connecticut. 

Organized by the UAW, today, we now employ in West Hartford almost 400 members of UAW Local No. 376, and, for both companies, employ under 500 union and 

non-union personnel. Our combined annual sales revenue is less than $100 million. 

Since 1998, we at Colt have been defending ourselves against a multitude of lawsuits brought by government entities, organizations and individuals seeking to 

8

blame the firearms industry, including Colt, for the criminal and wrongful misuse 

of firearms in the United States. To blame Colt for the criminal misuse of firearms 

that is lawfully manufactured and sold is unjust. It also is threatening to our very 

existence. For a company that emerged from bankruptcy in 1994, we have been 

fighting for our lives against these lawsuits, diverting time, money and other of our 

limited resources to defend ourselves. 

As I walk through our plant, Colt workers stop me to ask how the war is going. 

We post announcements about the successes in battles that we are fighting. But the 

war that our workers are asking or reading about is not the Iraqi War; it is the 

war we are fighting against these plaintiffs, spurred on by plaintiffs’ trial lawyers. 

We and many others in the industry have been fighting now for eight years, beginning with the Hamilton v. Accu-tek case, in which the plaintiffs claimed that we 

manufacturers negligently distributed our firearms. While the jury in that case 

found some of the manufacturers liable, the verdicts were properly reversed on appeal. The same plaintiff’s lawyer decided to bring a similar case before that same 

trial judge. Ironically, they are beginning their third day of trial this morning in 

the NAACP v. A.A. Arms, Inc. case based on similar theories already rejected by 

the U.S. Court of Appeals. While we are resolved not to wear down, there is a cost 

to this war. 

Beyond these lawsuits draining our already fragile national economy and littering 

our already over-burdened court system, this war is hindering companies like Colt 

from engaging in a legitimate business, making a lawful product. The existence of 

these lawsuits are thwarting our ability to raise new capital, borrow money, establish credit, obtain insurance, attract new employees, and retain valued employees 

in the same manner that companies in other industries are able to do without these 

attacks against their industry. 

These lawsuits are dangerous not only to us but also to manufacturers of lawful 

products in other industries. Where will it end? Should General Motors be liable for 

an aggressive driver who crashes into another car? If the theory of these cases is 

widely applied, it could result in the bankruptcies of countless companies and the 

displacement of American workers. 

I come here today to ask you to please support H.R. 1036. This Bill would protect 

legitimate businesses, such as Colt, that provide hundreds of thousands of jobs for 

our citizens, from the polisher to the tool and die maker or from our cafeteria workers to the people who fill our snack vending machines, even our suppliers. 

If enacted into law, this Act would preempt state and local government entities 

and other parties from bringing aggregate liability lawsuits against the firearms industry as a way to circumvent our legislatures. It also would promote interstate and 

foreign commerce of small arms. A majority of the states—in fact, over 30 states— have passed legislation of some type that insulate the firearms industry from these 

types of suits. However, we need and therefore are seeking passage of a Federal law 

that would afford protection to the industry on a national level. 

Let me emphasize that this legislation would not provide the sweeping immunity 

that many of its opponents suggest. This Bill would not protect gun manufacturers 

from liability claims. Instead, it would stop lawsuits against our industry that are 

based on the criminal misuse of lawfully distributed products and premised on theories such as public nuisance and market share liability. 

If passed, this Bill would help to set a much needed precedent that baseless suits 

like these should be stopped. If passed, it would prevent the usurpation of power 

by the judicial branch from the legislative branch. For it is the legislature that 

makes laws on how we should manufacture, design, and sell firearms, not the 

courts. If not stopped, these lawsuits clearly will threaten other legitimate and vital 

industries in America. This proposed Act would restore the rule of law and protect 

manufacturers and sellers in the firearms and ammunition industry who act legally 

from being harassed by frivolous lawsuits. However, the Bill ensures that if a seller 

provides a firearm and the seller knows or should have known that the firearm 

would be used negligently, that seller would be liable. 

With the terrorist attacks on 9/11 and now our involvement in the Iraqi War, Colt 

as a military defense contractor has been requested by the Department of Defense 

to provide DPAS assistance. This is a priority assistance of the U.S. Government 

under the Code of Federal Regulations Part 700, Defense Priorities and Allocation 

System. This means that we at Colt must give preference to the U.S. Government 

over all other customers in order to fulfill the Department of Defense orders for 

small arms and spares under the Defense Production Act. Unfortunately, we cannot 

drop our defense of these lawsuits while under DPAS. 

We are dutifully helping to defend our country when attacked and in times of war. 

I ask that each of you help us in our time of war so that we can focus on making 

the best small arms available for our men and women in uniform. 

9

In conclusion, it makes no difference that Colt or other firearm manufacturers 

make high quality firearms that enjoy excellent records of safety. It makes no difference that we and our industry is committed to continuing our efforts, individually 

and together with others, to increase awareness of the issues related to the safe 

handling and storage of firearms and the criminal acquisition of firearms. These 

sham lawsuits are being brought to exert undue pressure on our industry to settle 

or cave under the massive weight of litigation. Without this Federal legislation, the 

survival of Colt, our firearms and ammunition industries, and all of the jobs, taxes, 

and commerce that we contribute to the U.S. economy are threatened.

[The material referred to follows:]

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UAW1.eps
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UAW2.eps
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Colt1.eps
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Colt2.eps
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Colt3.eps
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Colt4.eps
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Colt6.eps
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Mr. CANNON. In fact, the record will be open for 5 days if any 

of the panel or any of the Members wish to submit statements for 

the record or other items for the record. Thank you. I appreciate 

your testimony. 

Mr. Olson. 

STATEMENT OF WALTER OLSON, SENIOR FELLOW,

THE MANHATTAN INSTITUTE 

Mr. OLSON. Thank you, Mr. Chairman. 

As you mentioned, I recently published a book called The Rule 

of Lawyers which discusses at considerable length the origins and 

the objectives of the antigun litigation. I conclude the following: 

The gun suits are at best an assault on sound principles of individual responsibility, since criminals are the ones that we should 

blame for crime. At worst, they are a serious abuse of the legal system, as I will try to demonstrate in a moment. 

They show how a pressure group can employ litigation to attempt an end-run around our democratic process in search of victories in the courtroom that they have been unable to obtain at the 

ballot box. 

The idea of a litigation campaign against gun makers reached its 

greatest impetus after the 1994 national elections which swept out 

of office many Members of Congress associated with the cause of 

gun control. 

After that humiliating route, many gun control advocates concluded that the democratic process was not any time soon going to 

grant them the kinds of gun control they wanted. What was the alternative? As the lawyer who filed New York’s Hamilton v. AccuTek put it, ‘‘You don’t need a legislative majority to file a lawsuit.’’ The result has been a coordinated campaign, highly coordinated 

and of national scope, operating recently across State lines and 

drawing on lawyers and courts in many States as a common enterprise. 

As another leading antigun lawyer put it, ‘‘What you really want 

is a diversity of cases in lots of different regions, lots of different 

courts, to create the greatest threat of liability.’’. 

The objectives of this campaign, according to the organizers 

themselves, include the following: Sweeping nationwide changes in 

the design, manufacture and distribution of guns, new paperwork 

burdens and sacrifices of privacy for gun owners and for gun dealers. 

What most of these measures have in common is the following: 

They have been considered and they have been rejected by this 

body and by most, if not all, State legislators. That is not by coincidence. 

The antigun litigation movement did not have a strong case 

under the principles that have come down to us through common 

law over hundreds of years. I think that has been demonstrated by 

the dismissal of most of the cases that we have seen so far. 

What then were they counting on? Three things, I believe. First 

they were counting on finding some judges who were willing to engage in judicial activism, as it is called, who believe that for reasons of social progress they can change the common law tradition 

and introduce new causes of action. 

20

Secondly, they realized that for these defendants in particular, 

the lawsuits were often going to be the company actions, as they 

are called, actions in which evev if you win, you get to roll the dice 

again as a defendant. If you lose, that may be it for your company. 

And in any litigation there is a high random factor by necessity. 

As a defendant in these gun cases, you may win 98 or 99 percent 

of them. That may not be good enough. 

Finally, and connected with the second point, these are not large 

companies. This is the exact opposite really of the tobacco litigation 

in which you have some of the largest and most sophisticated enterprises in the world being sued. The gun industry is mostly small 

and medium-sized companies, often family owned. As you said in 

your opening statement, Mr. Chairman, the spokesmen for the municipal gun suits told a newspaper, ‘‘The legal fees alone are 

enough to bankrupt the industry.’’. 

And we know that the deliberate use of cost infliction as a tactic 

in litigation has been disapproved by principles of legal ethics, 

more or less forever. It is considered a very serious breach of legal 

ethics. Yet, I think the record shows and numerous journalistic 

sources will document that more than a few of the lawyers filing 

these suits have made it a knowing and conscious part of their 

strategy to inflict legal costs on the defense. That is, to put it mildly, not an appropriate use to which the legal system should be put. 

Let me conclude with a word about federalism and the appropriate role of Congress. You will probably be told by some opponents of the bill that Congress should leave the States alone to 

work this out by going their own separate ways. But the objective 

of the antigun litigation campaign is not to let the States go their 

separate ways. It is to obtain a nationwide coordinated system of 

gun control through coordinated interstate litigation. Most of the 

States will not be left with any choice in the matter any more than 

gun owners or dealers will be left with any choice in the matter. 

Congress has the full power and right to act in the national interest. It should do so. Thank you. 

Mr. CANNON. Thank you, Mr. Olson. That was very enlightening. 

[The prepared statement of Mr. Olson follows:]

PREPARED STATEMENT OF WALTER K. OLSON

Good morning. My name is Walter Olson. I am a senior fellow at the Manhattan 

Institute, with which I have been associated since 1985, and am the author of three 

books on the American civil justice system. My most recent book, The Rule of Lawyers (St. Martin’s, 2003), published in January, includes a chapter exploring the origins and objectives of the movement seeking to make makers and distributors of 

guns pay for criminals’ misuse of their wares. I conclude that the gun suits are at 

best an assault on sound tenets of individual responsibility, and at worst a serious 

abuse of legal process. Even more ominously, the suits demonstrate how a pressure 

group can employ litigation to attempt an end run around democracy, in search of 

victories in court that it has been unable to obtain at the ballot box. Finally, I argue 

that strong Congressional action to restrict litigation of this type is not only consistent with a due regard for federalism and state autonomy, but is in fact required 

by it. 

Point by point: 

1. Litigation against gunmakers today takes the form of a highly coordinated 

campaign of nationwide scope, in which a few very active attorneys and antigun groups turn up again and again on the plaintiff’s side, and in which the 

allegations advanced in particular lawsuits are frequently crafted to advance 

a wider legal strategy against the target industry. As Brady Campaign attorVerDate 0ct 09 2002 14:01 Jun 12, 2003 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 G:\WORK\COMM\040203\86266.000 HJUD1 PsN: 86266
21

ney Dennis Henigan has put it: ‘‘What you really want is a diversity of cases 

in lots of different regions, lots of different courts to create the greatest 

threat of liability.’’

2. Organizers of this campaign intend to use litigation as leverage to obtain 

sweeping nationwide changes in the manufacture and distribution of guns, 

including the de facto banning of some models, compulsory changes in gun 

design, and major new paperwork burdens and privacy sacrifices for gun 

owners and dealers. Most of these changes if obtained are likely to be highly 

unwelcome to large numbers of law-abiding gun purchasers.

3. The idea of a litigation campaign against guns received its greatest impetus 

after the 1994 national elections, which swept from office many members of 

Congress identified with the cause of gun control. After that rout, some leading gun-control advocates concluded that the democratic process was not 

soon going to grant them the kinds of restrictions on gun distribution they 

sought any time soon. The alternative? As the lawyer who argued New 

York’s Hamilton v. Accu-Tek put it, ‘‘You don’t need a legislative majority to 

file a lawsuit’’.

4. Anti-gun litigators were aware that they had little case under the principles 

that had prevailed over hundreds of years of common law. But they knew 

that some courts are tempted by the lure of judicial activism: if persuaded 

that it will serve the cause of social progress to invent new law out of whole 

cloth, that is what they will do. In addition, when many different actions are 

pressed in many different courts, the random factor present in any litigation 

begins to play a large role: even if defendants can fend off 98 percent of the 

cases, somebody somewhere is likely to break through, to the ruin of a given 

defendant or the entire industry. Given the lack of a loser-pays principle in 

American courts, there is little to discourage the filing of such speculative, 

long-shot litigation.

5. As industries go, America’s gun industry generally consists of small and 

modest-sized companies, often family-owned: firearms scholar David Kopel 

has written that the nation’s gun manufacturers would not be big enough to 

qualify for the Fortune 500 even if you combined them all into one company. 

As many journalistic accounts have made clear, anti-gun litigators were not 

only aware that the expense of legal fees might grind down the resources of 

the target businesses, but actually made such infliction of costs a conscious 

strategy. ‘‘As in the war against tobacco, winning in court isn’t necessarily 

the objective of the lawyers,’’ observed the New Yorker’s Peter Boyer in an 

article on the strategy behind the gun suits. Defending against just twenty 

municipal suits, ‘‘according to some estimates, could cost the gun manufacturers as much as a million dollars a day.’’ (The lawyers soon had thirty such 

suits going.) ‘‘The legal fees alone are enough to bankrupt the industry,’’

boasted John Coale, a key lawyer in the municipal suits. Although the deliberate infliction of costs in order to compel settlement was once considered a 

gross breach of legal ethics, many partisans of the gun litigation appeared 

if anything to admire its use in this case. Thus the editorialists of the Atlanta Journal-Constitution approvingly noted that the suits ‘‘have already 

forced some gun makers to the bargaining table’’ because they ‘‘can’t afford 

lengthy courtroom battles’’.

6. The sums of money being demanded in the municipal gun litigation are more 

than enough to drive every major gunmaker into bankruptcy many times 

over—a prospect that would presumably entail serious disruptions in interstate commerce as well as in the assured supply of new guns to such purchasers as the U.S. military. However, many supporters of the municipal litigation have indicated that it is not actually intended to be tried to a final 

conclusion; the idea is instead to settle it as part of a ‘‘deal’’ in which the 

gun industry agrees to abide by various (unlegislated) gun controls. But such 

a settlement prospect poses distinctive dangers of its own. To begin with, 

other affected parties (including gun purchasers and dealers) will not be 

present in the settlement room, and their interests are likely to go unrepresented. Moreover, defendants can be arm-twisted in such a settlement into 

agreeing to adopt measures that go beyond what any court would have ordered, and it will subsequently be argued that gun purchasers, dealers and 

other ‘‘outsiders’’ lack standing to challenge the terms of a settlement, no 

matter how detrimental it may be to their interests, perhaps including the 

exercise of Constitutionally recognized liberties.

22

7. The gun suits are probably the boldest effort presently underway to employ 

liability litigation to usurp Congress’s Constitutionally specified role in lawmaking. Thus The American Lawyer reported that one of the municipal suits’

prime movers, the late Wendell Gauthier, recruited trial lawyer colleagues 

into the action because it ‘‘fit with Gauthier’s notion of the plaintiffs bar as 

a de facto fourth branch of government, one that achieved regulation through 

litigation where legislation failed.’’ Remarkably, many of Gauthier’s colleagues are equally outspoken. Attorney John Coale, spokesman for the municipal suits, has argued that ‘‘What has happened is that the legislatures 

. . . have failed,’’ and: ‘‘Congress is not doing its job [and] lawyers are taking 

up the slack.’’ ‘‘The failure of Congress to address social problems in any 

meaningful way had left a void,’’ said Daniel Abel of Florida’s Levin 

Papantonio, active in both the gun and tobacco rounds. ‘‘Why was it important for trial lawyers to become this new arm of government’’? asked Michael 

Papantonio of the same firm. ‘‘Because the new arm takes the place of an 

arm that’s not working anymore.’’ These quotes reveal an astounding contempt for the democratic process and for the lawmakers of this body.

8. By design and by necessity, the antigun litigation campaign is interstate in 

its anticipated effects. Its suits in state courts demand damages from outof-state defendants on a scale certain to impair the workings of interstate 

commerce, as well as the assessment of punitive damages against gun-industry actors based on their nationwide (as opposed to intrastate) courses of conduct. Indeed, gun lawsuits have repeatedly asserted a right to apply the law 

of one state or jurisdiction (such as New York) to gun sales which took place 

in other jurisdictions (such as South Carolina and Virginia), on the grounds 

that the firearms in question were later smuggled or otherwise taken into 

the state in which the lawsuit is going forward. The intended and expected 

effect is to identify isolated state courts that are amenable to the advocates’

arguments, and then project the power of those courts so as to restrict gun 

freedoms in all 50 states, including states that would prefer to preserve for 

their citizens relatively liberal access to the means of self-defense. It is important that proponents of the gun-suit campaign not be allowed to hide behind the skirts of federalism. They are not, in fact, defending states’ ‘‘right 

to govern themselves’’, but instead attempting to use litigation in the courts 

of some states to govern the citizens of other states. 

As you are aware, H.R. 1036, the Protection of Lawful Commerce in Arms Act, 

would ‘‘prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages 

resulting from the misuse of their products by others.’’ In view of the history thus 

far of the gun litigation, I can only say: it’s about time. 

Thank you very much.

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Mr. CANNON. Mr. Lemongello, before you begin, before we set the 

clock, I am just going to inform that we are going to have a vote 

called in about 10:45. It is the intention of the Chair to go an extra 

10 minutes into that vote and hopefully wrap this hearing up by 

that time. So if—plan accordingly on questions, and then, Mr. 

Lemongello, you are recognized for 5 minutes. 

STATEMENT OF DAVID LEMONGELLO, NUTLEY, NJ 

Mr. LEMONGELLO. First, I would like to thank Chairman Cannon, 

Representative Watt and the rest of the Committee for allowing me 

to testify here today. 

I would also like to introduce Mike McGuire who is with me 

today. Mike’s brother, Ken McGuire, was a police officer who was 

shot along with me in January 2001. Mike is a sheriff’s deputy in 

Essex County, NJ. 

I would also like to introduce my counsel, Dennis Henigan. Mr. 

Henigan is with me because I have a pending lawsuit, and it may 

be necessary for him to address questions about the lawsuit. 

Good morning. My name is David Lemongello. I used to be a police detective for the City of Orange in New Jersey. I graduated 

from the Academy with the dream that I would help protect people 

and do all I can to stop crime, but that dream was cut short 2 

years ago by a criminal who should never have had a gun and a 

gun dealer who was all too happy to profit from supplying guns to 

the criminal market. 

On January 12, 2001, I was shot three times by a violent criminal. My fellow officer, Ken McGuire, was shot two times in the 

same incident. Our careers and livelihoods were abruptly cut short 

that horrific night. I am here because I am outraged that Congress 

is considering passing a bill that would protect the irresponsible 

dealer and would deny me my legal rights as an American. 

On January 12, 2001, Ken McGuire and I were police officers 

with the Orange Police Department, New Jersey. I was on a stakeout when I saw a suspect who matched the description of someone 

who had been doing several armed robberies at a gas station. I got 

out of my car to stop him, and I was immediately shot. The man 

who shot me was Shuntez Everett, who was wanted for attempted 

murder. Because Mr. Everett had been previously convicted of 

weapons-related charges, he could never have legally purchased a 

handgun. 

Because of the injuries I suffered from that shooting, I will never 

be a police officer again. Months after January 12, 2001, Ken and 

I received some disturbing news. The gun used to shoot me reached 

the criminal’s hands because of an irresponsible gun dealer. The 

gun used in the shooting was one of 12 guns purchased by two individuals on a single day from Will Jewelry & Loan, a gun dealership in West Virginia. One of the individuals was a felon, Mr. 

James Gray. He used a woman with a clean record to purchase all 

12 guns at once with cold cash. Don’t you think if a man and a 

woman come into your gun shop with thousands of dollars and a 

man starts pointing out guns that he wants and then has a woman 

purchase them, it should be an automatic red flag that something 

isn’t right? Where did the gun dealer think those guns were headed 

besides the streets? 

34

Even more disturbing was that the gun dealer knew this was a 

dirty deal. After he sold all 12 guns to these individuals and took 

their cash, he called the ATF because he felt something wasn’t 

right. If that was the case, why didn’t he call the ATF before he 

took their money and sold the 12 guns? Because those who sold 

this gun did not act responsibly, Ken and I filed suit against them. 

These gun sellers did not even follow the sales guidelines recommended by the gun industry’s own trade association, the National Shooting Sports Foundation. The NSSF says that gun dealers should ask customers who may be straw purchasers a number 

of questions, and if the dealer has any doubt about the sale, he 

should not sell the gun. The manufacturer of this gun, Sturm, 

Ruger, is a member of NSSF, yet it does nothing to make sure that 

its dealers are even aware of these guidelines. 

Had this gun dealer followed the NSSF guidelines, the gun used 

to shoot me would never have been on the streets in criminal 

hands. The next disturbing news I heard was that some people in 

Congress wanted to take away my right to present my case in court 

and wanted to give that irresponsible gun dealer special protection 

from the legal rules that apply to all other businesses in this country. 

Other businesses have to use responsible care, reasonable care 

and may be liable for the consequences if they don’t. Those who sell 

lethal weapons that are highly valued by criminals should have at 

least the same duty to use reasonable care as businesses who sell 

BB guns or any other product. 

Our case is not frivolous. Far from it. The West Virginia gun 

dealer and the manufacturer of the gun, Sturm, Ruger, recently 

asked a judge in West Virginia to dismiss our case. She heard the 

gun seller’s legal arguments and rejected every single one of them. 

This judge, Judge Irene Berger of Kanawha County, applied the 

general rules of West Virginia law to allow our case to proceed. By 

establishing a different set of rules applicable only to the gun industry, H.R. 1036 would override her decision and deny us our day 

in court. 

As a police officer, a former police officer, I understand all too 

well the importance of enforcing criminal law against gun dealers, 

gun traffickers and criminals who use guns. I do not need to be lectured by the gun lobby about the importance of enforcing the laws 

on the books, but that is not enough. For one, the damage is usually already done when the criminal law steps in. Gun sellers have 

to be more responsible when they sell guns to prevent guns from 

getting into criminal’s hands before they do their damage. What 

happened to Ken and me is an example of what could happen when 

gun sellers are irresponsible. 

Right now, a gun dealer sees only potential profit when someone 

comes in and wants to buy 12 or even 112 guns. The dealer should 

also recognize that there are costs to engaging in such sales, and 

people like Ken McGuire and I bear the cost for the rest of our 

lives. 

That is why lawsuits like ours are important. Gun dealers need 

to be held accountable. If it weren’t for our strength and will to 

live, we both would have died that horrific night, January 12, 2001. 

We are both very lucky to be here today. Kenny is the youngest of 

35

12 brothers and sisters. As for me, I was newly married 2 months 

prior to January 12, 2001. I can’t even imagine what our family 

has gone through. The physical and mental scars are something 

Kenny and I have to deal with every minute of every day, and the 

damage that was done is irreversible. 

Ken and I are not asking for the law that says we are entitled 

to compensation for our injuries. We are not asking for the law that 

says we must win our case, and we do not claim that gun seller 

and gun manufacturers should be found liable simply because they 

sold guns that were used in a crime. All we ask is for our day in 

court so we can prove to the judge and jury that these gun sellers 

acted irresponsibly and that they should be accountable under the 

principles of law that apply to everyone. This is our right as Americans, and on behalf of Ken and myself and other victims of gun violence, I ask that you do not take that right away. Thank you. 

Mr. CANNON. Thank you, Mr. Lemongello. We appreciate the horrific experience you have been through and appreciate you being 

here to share that with us. 

[The prepared statement of Mr. Lemongello follows:]

PREPARED STATEMENT OF DAVID LEMONGELLO

Good morning, my name is Dave Lemongello. I used to be a police detective for 

the city of Orange, New Jersey. I graduated from the academy with the dream that 

I would help protect people and do all I could to stop crime. But that dream was 

cut short two years ago by a criminal who should never have had a gun, and a gun 

dealer who was all too happy to profit from supplying guns to the criminal gun market. On January 12, 2001, I was shot three times by a violent criminal. My fellow 

officer Ken McGuire was shot two times in the same incident. Our careers and livelihood were abruptly cut short that horrific night. I am here because I am outraged 

that Congress is considering passing a bill that would protect that irresponsible 

dealer and would deny me my legal rights as an American. 

On January 12, 2001, Ken McGuire and I were police officers with the Orange 

Police Department in New Jersey. I was on a stakeout when I saw a suspect who 

matched the description of someone who had been doing several armed robberies at 

a gas station. I got out of my car to stop him, and was immediately shot. The man 

who shot me was Shuntez Everett, who was wanted for attempted murder. Because 

Everett had been previously convicted of weapons-related charges, he could not have 

legally purchased a handgun. 

Because of the injuries I suffered from that shooting, I will never be a police officer again. 

Months after January 12, 2001, Ken and I received some disturbing news. The 

gun used to shoot me reached the criminal’s hands because of an irresponsible gun 

dealer. The gun used in the shooting was one of twelve guns purchased by two individuals on a single day from Will Jewelry & Loan, a gun dealership in West Virginia. One of the individuals was a felon, Mr. James Gray. He used a woman with 

a clean record to purchase all twelve guns at once with cold cash. Don’t you think 

if a man and woman comes into your gun shop with thousands of dollars and the 

man starts pointing out guns that he wants and then has the woman purchase 

them, it should be an automatic red flag that something isn’t right? Where did the 

gun dealer think those guns were headed besides the streets? Even more disturbing 

was that the gun dealer knew this was a dirty deal. After he sold all twelve guns 

to these individuals and took their cash, he called the ATF because he felt something wasn’t right. If that was the case, why didn’t he call ATF before he took their 

money and sold the twelve guns? 

Because those who sold this gun did not act responsibly, Ken and I filed suit 

against them. These gun sellers did not even follow the sales guidelines recommended by the gun industry’s own trade association—the National Shooting 

Sports Foundation. The NSSF says that gun dealers should ask customers who may 

be straw purchasers a number of questions, and if the dealer has any doubt about 

the sale, he should not sell the gun. The manufacturer of this gun, Sturm, Ruger, 

is a member of NSSF, yet it does nothing to make sure that its dealers are even 

36

aware of these guidelines. Had this gun dealer followed the NSSF guidelines, the 

gun used to shoot me would never have been on the streets, in criminal hands. 

The next disturbing news I heard was that some people in Congress wanted to 

take away my right to present my case in court, and wanted to give that irresponsible gun dealer special protection from the legal rules that apply to all other businesses in this country. Other businesses have to use reasonable care and may be 

liable for the consequences if they don’t. Those who sell lethal weapons that are 

highly valued by criminals should have at least the same duty to use reasonable 

care as businesses who sell BB guns, or any other product. 

Our case is not frivolous—far from it. The West Virginia gun dealer and the manufacturer of the gun, Sturm Ruger, recently asked a judge in West Virginia to dismiss our case. She heard the gun sellers’ legal arguments and rejected every single 

one of them. This judge, Judge Irene Berger of Kanawha County, applied the general rules of West Virginia law to allow our case to proceed. By establishing a different set of rules—applicable only to the gun industry—H.R. 1036 would override 

her decision and deny us our day in court. 

As a police officer—a former police officer—I understand all too well the importance of enforcing the criminal laws against gun dealers, gun traffickers, and criminals who use guns. I do not need to be lectured by the gun lobby about the importance of enforcing the laws on the books. But that is not enough. For one, the damage is usually already done when the criminal law steps in. Gun sellers have to be 

more responsible when they sell guns to prevent guns from getting into criminals’

hands, before they do their damage. What happened to Ken and me is an example 

of what happens when gun sellers are irresponsible. Right now, a gun dealer sees 

only potential profit when someone comes in and wants to buy twelve—or one hundred and twelve—guns. The dealer should also recognize that there are costs to engaging in such sales, and people like Ken McGuire and I bear those costs the rest 

of our lives. That is why lawsuits like ours are important. Gun dealers need to be 

held accountable. 

If it weren’t for our strength and will to live, we both would have died that horrific night on January 12, 2001. We are both very lucky to be here today. Kenny 

is the youngest of twelve brothers and sisters. As for me, I was newly married two 

months prior to January 12, 2001. I can’t even imagine what our families have gone 

through. The physical and mental scars are something Ken and I have to deal with 

every minute of every day. And the damage that was done is irreversible. 

Ken and I are not asking for a law that says we are entitled to compensation for 

our injuries. We are not asking for a law that says we must win our case. And we 

do not claim that gun sellers and gun manufacturers should be found liable simply 

because they sold a gun that was used in crime. All we ask for is our day in court, 

so we can prove to a judge and jury that these gun sellers acted irresponsibly and 

that they should be accountable under the principles of law that apply to everyone. 

This is our right as Americans. On behalf of Ken, myself and other victims of gun 

violence, I ask that you not take that right away. Thank you.

Mr. CANNON. Mr. Keane, you are now recognized for 5 minutes. 

STATEMENT OF LAWRENCE G. KEANE, VICE PRESIDENT AND 

GENERAL COUNSEL OF THE NATIONAL SHOOTING SPORT 

FOUNDATION 

Mr. KEANE. Chairman Cannon, distinguished Members of the 

Subcommittee, my name is Lawrence Keane. I am the Vice President and General Counsel of the National Shooting Sports Foundation. 

The NSSF appreciates the opportunity to appear before the Committee this morning to offer testimony in support of H.R. 1036, the 

common sense legal reform that will restore integrity and fairness 

to our Nation’s judicial system. 

We call upon Congress to follow the lead of over 30 States that 

have already enacted similar legislation to stop reckless lawsuits 

that seek to destroy and bankrupt a responsible American industry 

by blaming firearms manufacturers for the actions of criminals. 

Formed in 1961, the NSSF is the trade association for the firearms 

and recreational shooting sports industry. 

37

We are proud of our industry’s cooperative relationship with law 

enforcement, as exemplified by the joint NSSF-ATF partnership 

program called Don’t Lie for the Other Guy that assists ATF in 

educating federally licensed firearms dealers on how to detect and 

deter illegal straw purchasers of firearms. 

Beginning in 1998, a group of approximately 40 urban politicians 

aligned with contingency fee trial lawyers and antigun activists 

have flooded our Nation’s courts with lawsuits filed against lawabiding federally licensed firearms manufacturers, wholesale distributors and retailers. 

The plaintiffs do not allege that members of the industry have 

broken any of our Nation’s over 20,000 firearm laws. Instead they 

allege that the sale of a legal product in accordance with an extensive regulatory system somehow causes crime and the industry is 

subverting the law to funnel firearms to the so-called criminal market. These allegations are highly offensive and patently false. 

This well-funded, coordinated onslaught of reckless lawsuits 

against members of our industry continues unabated. Recently the 

cities of New York, Jersey City and Camden, New Jersey were permitted to attempt to prove their despicable allegation that the industry knowingly and willingly sells guns to criminals. Several 

cases are currently pending at the trial court level. 

In addition, several more cases are currently at various stages of 

appeal and could be returned to the trial court for costly and timeconsuming discovery. Just one $100 million dollar verdict will 

bankrupt virtually the entire industry. 

Just this Monday, the NAACP’s lawsuit against members of the 

industry began in Brooklyn Federal Court before Judge Weinstein, 

who tried the Hamilton case and is well known in legal circuits as 

an activist jurist. Courts have recognized that these suits against 

the industry are an improper attempt to use litigation to regulate 

the industry, thereby circumventing the democratic and constitutionally prescribed legislative process, usurping the role of Congress and the State legislatures. 

At his opening on Monday, Dennis Hayes, the General Counsel 

of the NAACP, said he was asking, ‘‘to usher in an equitable code 

of conduct and would change the way business is done and that the 

case was about asking a Federal court,’’ not Congress, to, ‘‘step in 

and regulate, the firearms industry.’’

In upholding the dismissal of a similar suit, a Florida appellate 

court said that, ‘‘Miami-Dade County’s request to the trial court to 

use injunctive powers to declare the business methods create a 

public nuisance is in an attempt to regulate the firearms and ammunition industry through the medium of the judiciary and that 

the judiciary is not empowered to enact regulatory schemes in the 

guise of injunctive relief. The power to regulate belongs not to the 

judicial branch of Government but to the legislative branch.’’

Winning on the merits is not necessary in order for these politicians and antigun activists to impose through litigation a gun control agenda rejected repeatedly by Congress and not supported by 

the American public. 

At the time he filed his suit, Chicago Mayor Daly said, ‘‘We are 

going to hit them where it hurts, in their bank accounts.’’

38

Andrew Cuomo, then HUD Secretary, threatened firearms manufacturers with, ‘‘Death by a thousand cuts.’’ NAACP President Mfume said his lawsuit was an effort to ‘‘break the backs of industry members.’’ Antigun plaintiffs can implement their gun control policies 

through the entire Nation if the coercive effect resulting from the 

staggering financial cost to defend these baseless suits forces industry members into a Hobson’s choice of either capitulation or bankruptcy. Companies have gone out of business vindicating themselves against baseless lawsuits. Just ask Dow Corning. 

The collective industry cost to defend these ill-conceived politically motivated suits has been truly staggering. I believe a conservative estimate for the total industry-wide cost of defense to date 

now exceeds $100 million, a staggering sum for a small industry 

like ours, that, taken together, would not equal a Fortune 500 company. The cost of litigation is borne almost exclusively by the companies, because insurance carriers have denied coverage. 

Plaintiffs have carefully drafted their complaints to take them 

outside of liability insurance coverage in order to apply maximum 

financial pressure on the defendant manufacturers. 

Firearms industry members now confront skyrocketing premiums. These lawsuits threaten the very existence of manufacturers that produce the tools our military and law enforcement agencies use every day to protect the American public, and our freedoms both here and abroad. 

If these companies are driven out of business, from whom will 

our military and law enforcement purchase their firearms? The legislation today is as important for what it does not do as what it 

does do. 

It does not, as antigun interest groups have falsely alleged, close 

the courthouse doors to those that have been injured by firearms 

that have been illegally sold, supplied to one likely to use the firearm in a manner involving an unreasonable risk of injury or defectively designed or manufactured products. 

The bill expressly provides that injured parties are still able to 

assert well-recognized tort claims against manufacturers and sellers of firearms. The loudest voices arrayed in opposition to this legislation are the same antigun interest groups that are orchestrating and financing the litigation assault to regulate the firearms 

industry in ways Congress has rejected. 

Let me conclude my remarks where I began them. Over 30 

States have already enacted similar laws to stop these junk lawsuits designed to destroy the industry and to achieve gun control 

regulation through litigation. 

Within the week, West Virginia Governor, Bob Wise, signed legislation to prevent such suits. The time has come for Congress to 

enact common sense legal reform to restore integrity and fairness 

to our judicial system, protect American jobs and industry and prevent an unconstitutional attempt to circumvent Congress and the 

State legislators. 

The National Shooting Sports Foundation urges Congress to pass 

this legislation. 

Mr. CANNON. Thank you, Mr. Keane. 

[The prepared statement of Mr. Keane follows:]

39

PREPARED STATEMENT OF LAWRENCE G. KEANE

Chairman Cannon and distinguished members of the Subcommittee, my name is 

Lawrence G. Keane. I am the vice president and general counsel of the National 

Shooting Sports Foundation, Inc. (‘‘NSSF’’). The National Shootings Sports Foundation appreciates the opportunity to appear before the Subcommittee this morning to 

offer testimony in support of the ‘‘Protection of Lawful Commerce in Arms Act.’’ (H.R. 1036). We strongly support this important piece of common sense legal reform 

because it will restore integrity and fairness to our nation’s judicial system. We call 

upon Congress to follow the lead of over thirty states that have already enacted 

similar legislation to stop reckless lawsuits that seek to destroy and bankrupt a responsible American industry by blaming firearm manufactures for the actions of 

criminals. Nothing less is at stake than the future of one of America’s oldest, most 

important industries and the loss of thousands of American jobs that are vital to 

the wealth of our economy. 

Formed in 1961, the NSSF, with approximately 2,600 members, is the trade association for the firearms and recreational shooting sports industry. We are proud of 

our industry’s cooperative relationship with law enforcement, as exemplified by the 

joint NSSF—Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) partnership program called ‘‘Dont’ Lie for the Other Guy’’ that assists ATF in educating 

federally licensed firearms dealers on how to detect and deter illegal straw purchases of firearms. The American Society of Association Executives recently named 

the ‘‘Don’t Lie’’ program to its Advance America Honor Roll. NSSF’s commitment 

to promoting the safe and responsible use of firearms is typified by our federally 

funded Project ChildSafe and Project HomeSafe programs in which NSSF, in partnership with state and local governments, has provided millions of firearm safety 

education kits including a free firearm locking device to the public throughout the 

United States. 

Beginning in 1998, a group of approximately forty urban politicians, aligned with 

contingency-fee trial lawyers and anti-gun activists, have flooded our nation’s courts 

with lawsuits filed against law-abiding federally licensed firearms manufacturers, 

wholesale distributors and retailers. These suits seek to destroy and bankrupt a responsible American industry by blaming firearm manufactures for the actions of 

criminals. The plaintiffs in these cases do not allege that member of the firearms 

industry have broken any of our nation’s over 20,000 firearm laws. Instead, they allege that the sale of a legal product in accordance with an extensive regulatory system somehow causes crime and that the industry is subverting the law to funnel 

firearms to the so-called ‘‘criminal market.’’ These allegations are both highly offensive and patently false. 

Despite some success in the courts, this well-funded, coordinated onslaught of 

reckless lawsuits against members of our industry continues unabated. Recently, 

the cities of Newark, Jersey City and Camden, New Jersey were permitted to attempt to prove their despicable allegation that the firearms industry knowingly and 

willingly sells guns to criminals. Several more cases are currently at various stages 

of appeal and could be returned to trial courts for costly and time-consuming discovery. 

Just this Monday the trial of the National Associations for the Advancement of 

Colored People (NAACP) lawsuit against over 80 members of the firearms industry 

began in a Brooklyn federal court before Judge Jack B. Weinstein, well known in 

legal circles as an activist jurist. As other courts have recognized, these suits 

against the firearms industry are an improper attempt to use litigation to regulate 

the design, manufacturer, marketing, distribution and sale of firearms, thereby circumventing the democratic and constitutionally prescribed legislative process and 

usurping the role of Congress and the state legislatures. For proof of this, you need 

look no farther than Monday’s opening statement by Dennis Hayes, the NAACP’s 

general counsel. He said the NAACP was, ‘‘asking that the court usher in an equitable code of conduct that changes the way business is done,’’ and that the case was 

about asking a federal court ‘‘to step in and regulate’’ the firearms industry. 

In upholding the dismissal of similar suit by Miami-Dade County a Florida appellate court wrote, ‘‘The County’s request that the trial court use its injunctive powers 

to mandate redesign of firearms and declare that the [firearms manufacturers’] 

business methods create a public nuisance, is an attempt to regulate firearms and 

ammunition through the medium of the judiciary. . . . 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.’’

Winning on the merits is not necessary in order for these politicians and antigun 

activists to impose through litigation a gun control agenda repeatedly rejected by 

40

Congress and not supported by the American public. 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.’’

NAACP president Kweisi Mfume said its lawsuit was ‘‘an effort to break the backs’’

of industry members. These antigun plaintiffs can implement their gun control policies throughout the entire nation if the coercive effect resulting from the staggering 

financial cost to defend these baseless suits forces industry members into a Hobson’s 

choice of either capitulation or bankruptcy. Companies have gone bankrupt vindicating themselves against baseless lawsuits. 

The collective, industry-wide cost to defend these ill-conceived, politically motivated suits has been truly staggering. Exact figures are unavailable because the defendants are competitors and each considers its defense costs to be confidential business information. However, based on discussions with insurance industry executives, manufacturers’ corporate counsel, reading cost estimates in various publications and NSSF’s own experience as a defendant in these cases, I believe a conservative estimate for the total, industry-wide cost of defense to date now exceeds $100 

million dollars. This is a huge sum of money for a small industry like ours. The firearms industry taken together would not equal a Fortune 100 company. The cost of 

litigation is borne almost exclusively by the companies themselves. With few exceptions, insurance carriers have denied coverage. Because of these lawsuits, firearms 

industry members now confront skyrocketing premium increases when renewing 

their insurance policies. In addition, insurance policies now universally excluded 

coverage for these types of suits. This has resulted in large, across-the-board, price 

increases for consumers. In addition, in these trying economic times, taxpayers of 

the cities that have chosen to pursue the utterly discredited notion that manufacturers are responsible for the acts of criminals are forced to shoulder their city’s cost 

of pursuing such a lawsuit, money that could have been better spent on things like 

hiring more police officers.

Mr. CANNON. The Chair notes that we have been joined by several other Members. 

First of all, the Ranking Member of the full Committee, Mr. Conyers from Michigan, Mr. Scott from Virginia is also with us and 

Mrs. Blackburn from Tennessee. I think we have now gotten everyone. 

Does the gentleman from North Carolina seek recognition? For 

questioning? 

Mr. COBLE. I do indeed. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. I will be brief. 

Thank you, gentlemen, for being with us. We have the 5-minute 

rule against us, so let me move along quickly. Let me address this 

to the industry reps. Describe in detail, if you will, the type of safety initiatives the industry has engaged on its own, A, and, B, are 

these safety initiatives mandatory, or has the industry voluntarily 

implemented them? Anybody, any of the reps. 

Mr. KEANE. I will address that question. 

The National Shooting Sports Foundation was formed in 1961. 

Throughout its history it has promoted the safe and responsible 

use and handling of firearms. 

It has a number of programs and has distributed thousands of 

pieces of safety literature voluntarily throughout the United States. 

It has a program that is now funded by the Federal Government 

called Project ChildSafe in which we distribute firearm safety education kits, including a free locking device. Throughout the United 

States we have distributed millions of those safety kits. 

Mr. COBLE. And manufacturers are actively involved in this? 

41

Mr. KEANE. The manufacturers such as Colt are members of the 

National Shooting Sports Foundation and support the programs 

and initiatives. That is on the safety side. 

In cooperation with law enforcement, as I indicated in my remarks, we are very proud of our cooperation with law enforcement, 

and it is exemplified and typified by our voluntary joint cooperative 

program with the ATF called Don’t Lie for the Other Guy in which 

we distribute—we have distributed tens of thousands of these kits 

to dealers all throughout the United States that help to educate 

these retail dealers on how to identify and deter straw purchases 

of firearms. It includes countercards, placards and videos. All of 

that is at our expense. All of that is totally voluntary, and we—— Mr. COBLE. Thank you, Mr. Keane. I appreciate the answer. 

Some of the litigation suggests that the industry itself should be 

required to monitor dealers and perform I guess basically what 

would be law enforcement. Anybody want to respond to that about 

the dealers—I mean, about the manufacturers monitoring the sales 

that would appear to be onerous, but what say you about that? 

Mr. KEANE. I think it is an impractical suggestion. It amounts 

to asking a brewery to stand at the counter and monitor the sales 

of alcohol beverages to consumers or for a car manufacturer to 

stand at a dealership and——

Mr. COBLE. I hate to keep cutting you off, but the clock is running on me. What kind of initiatives, if any, has the industry undertaken to stop or curtail illegal gun sales? From any of the other 

two reps. Mr. Olson, or Mr. Keane if you—Mr. Keane, if you want 

to respond. 

Mr. KEANE. I would point again to another program that we 

have, a cooperative effort with ATF called the Partnership for 

Progress Seminars in which we hold, voluntarily hold, seminars 

throughout the United States in which ATF and the industry invites dealers to come for continuing education programs. ATF 

speaks at our trade show every year on issues such as straw purchasing and the theft of firearms, inventory control issues and 

things along those lines to prevent firearms from falling into the 

hands of criminals and being used in tragic situations. 

Mr. COBLE. Thank you, sir. 

Mr. Lemongello, in your case, Mr. Lemongello, as you pointed 

out, the dealer belatedly contacted ATF. I guess it is our contention 

he should have done that before he did it. But at least he did do 

it after the fact, unfortunately, perhaps. But do you—— Mr. LEMONGELLO. After he took the money. 

Mr. COBLE. Do you know, Mr. Lemongello, whether or not the 

ATF subsequently conducted an investigation against the dealer, 

and if so, were there allegations that the dealer had engaged in an 

illegal sale? Do you know one way or the other about that? 

Mr. LEMONGELLO. I don’t think there was any investigation toward the gun dealer, no. I don’t think there was. 

Mr. COBLE. Okay. I was just curious to know if in fact there was 

evidence of wrongdoing there. 

Well, that is very unfortunate about you and your partner, Mr. 

Lemongello, but—— Mr. LEMONGELLO. Let me just add that one of the 12 that was—

the one that ultimately I was involved with, that wasn’t the only 

42

one that was taken off the street in my small city that I worked 

in. There was one other from that 12, that batch of 12 that was 

bought from that store, that ended up being taken off the street 

months prior to that from Kenny McGuire, who took it off the 

street and was ultimately shot with me that day. So it was 2 of 

the 12 that were ultimately found in the small city in Jersey. 

Mr. COBLE. Thank you, sir. Mr. Chairman, I hope you will note 

that I beat the red light and I yield back. 

Mr. CANNON. I will also note that the gentleman is one of the few 

that regularly beats the red light, and I appreciate that. Thank 

you. 

Mr. Watt, would you like to be recognized? The gentleman is recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. I will try to beat the red 

light too, because I know we are against time constraints here. 

I just want to make one comment to Mr. Keane. After hearing 

your testimony, I am glad I didn’t get it last—in time to read it, 

because I would just say I am extremely offended by the notion 

that you would try to make us a party to—in a rhetorical way even 

to a dispute between the NRA and the NAACP. It just—I am offended by it. So—and I will just go on from there. 

Mr. Chen, I am holding in my hand a recall notice from Colt 

where you recalled a gun that was susceptible to accidental discharge if improperly carried with a round in the chamber and 

dropped or otherwise carelessly handled. And then further down in 

the notice, you say, if you own one of these pistols, please notify 

Colt in writing, but do not return the pistol at this time. You will 

be given further details and instructions as to when and how to 

ship your firearm to Colt. 

Now, assuming somebody accidentally dropped this gun after you 

gave them the notice and told them not to return it to you, as I 

read the provisions of this bill, that would not be used as intended. 

So you would be exempt from liability even for that kind of negligent design, as I read the bill. Is that what you intend? 

Mr. CHEN. That is not my understanding. My understanding is 

that this so-called sweeping immunity that the certain proponents 

against this bill would have you believe is absolutely untrue. 

Mr. WATT. Well, I can read, Mr. Chen. My thinking says an action—you are exempted unless there is an action for physical injuries or property damage resulting directly from a defect in design 

or manufacture of the product when used as intended. 

Now, I don’t know anybody who walks around dropping a gun accidentally in using it as intended. So the wording of this bill as it 

now is worded would exempt Colt, even after you notified somebody 

and told them that there was a defect and told them not to send 

the gun back to you. 

Mr. CHEN. That is not true, sir. The——

Mr. WATT. Are you saying I can’t read? 

Mr. CHEN. No. I think you are mistaken. 

Mr. CANNON. Would the gentleman yield? 

Mr. WATT. It is just subject to interpretation, and I am sure you 

are going to say you didn’t intend that. I am sure the Chairman 

is going to say he didn’t intend it, but if you are going to do this, 

at least clean the bill up and get to the things that you are talking 

43

about. And certainly don’t get to the seller and dealer who is responsible in the way that resulted in the shooting of police officers 

like the one that we have here testifying today. 

With that, Mr. Chairman, I will yield to you, if you want me to 

yield, but I am prepared to yield back my time if—in the interest 

of getting other—— Mr. CANNON. The gentleman yielded back. 

Mr. WATT. I will yield to you if you want me to yield to you. 

Mr. CANNON. That is fine. 

Mr. WATT. Okay. I will yield back then. 

Mr. CANNON. Mr. Carter, do you seek recognition? 

Mr. Feeney? Mrs. Blackburn? 

Mr. CANNON. Thank you. Mr. Delahunt. The gentleman is recognized for 5 minutes. 

Mr. DELAHUNT. I thank the Chair. Your testimony, Mr. 

Lemongello, I thought was rather powerful. I guess I would ask 

Mr. Keane, given what you heard and accepting the facts as recited 

by Mr. Lemongello, you wouldn’t want to deny him a right of access 

to the courts, would you? 

Mr. KEANE. Well, I don’t know that I would accept all of the representation of what the facts are. 

Mr. DELAHUNT. I understand, but let’s—— Mr. KEANE. My understanding is that not only did the dealer— you have asked the question. If I would be permitted to answer it. 

Mr. DELAHUNT. Here is what I am saying. Okay? This is how it 

works here. I ask the questions and you give the answers. All 

right? 

Mr. KEANE. I will be happy to answer the question. 

Mr. DELAHUNT. We understand that. Accept the facts as recited 

by Mr. Lemongello. Now, if you accept those facts, the question 

that I am posing is, would you deny him an opportunity to prove 

his case in a court of law? 

Mr. KEANE. If there is evidence that the dealer had in any way 

violated any of the laws, he would be—— Mr. DELAHUNT. Any of the laws could mean—— Mr. KEANE. You have asked the question. Could I be permitted 

to——

Mr. CANNON. Pardon me. Let me remind the panel that the gentleman on the dais controls the time and has the right to stop a 

question or—we will add a couple seconds to your—— Mr. DELAHUNT. I thank the Chair, and go ahead, Mr.——

Mr. KEANE. And I appreciate your interest in this legislation and 

your obvious enthusiasm. If the dealer——

Mr. DELAHUNT. I am getting more enthused as you speak, by the 

way. 

Mr. KEANE. If the dealer violated any laws, this bill does not protect or provide any immunity from litigation against that dealer. If 

the dealer complied with the law and it was a lawful sale and they 

have done nothing illegal, then they are not responsible for the actions—— Mr. DELAHUNT. I guess what I am saying is under the course of 

common law, the precedent that is established over the history of 

American jurisprudence, if Mr. Lemongello could prove negligence, 

a wanton and willful misconduct or gross negligence or some sort 

44

of liability theory, absent statutory language, you wouldn’t want to 

deny him access to court, would you? 

Mr. KEANE. He is not denied access to court, and in fact if a dealer knowingly—— Mr. DELAHUNT. Okay. Then you have clarified for me your position. Okay. That is all I am asking. 

Now, I guess it was maybe Mr. Chen could—I just want to get 

my hands around the dimensions of the problem here. What, in the 

aggregate, is the dollar amount of verdicts that have been returned 

in these kind of cases? 

Mr. CHEN. Against? 

Mr. DELAHUNT. Against——

Mr. CHEN. Against Colt? 

Mr. DELAHUNT. Well, no, not against Colt. Against dealers. I 

mean, I presume that—maybe Mr. Keane you can answer that 

question. 

Mr. KEANE. Well, I am not sure what your definition of these 

cases is. The cases that Hamilton——

Mr. DELAHUNT. Cases that would be prohibited under the aegis 

of the statute. 

Mr. KEANE. In the Hamilton case the verdict was for $4 million——

Mr. DELAHUNT. Do you have an aggregate figure? 

Mr. KEANE. That is the only verdict of this—well, in the similar 

case against the distributor in Florida, the verdict was for—— Mr. DELAHUNT. Do you have an aggregate number? 

Mr. KEANE. I do not have an aggregate number. 

[11 a.m.] 

Mr. DELAHUNT. Okay. I would hope that the representatives of 

the industry would provide to the panel the aggregate number in 

terms of jury verdicts or verdicts that have been rendered in these 

kind of cases, cases that would be prohibited under statute. We 

want to know what the dimension and magnitude of the problem 

is. 

Mr. CANNON. Will the gentleman yield? 

Mr. DELAHUNT. I yield. 

Mr. CANNON. You can either take that as a question, Mr. Keane, 

to provide information back, or you are welcome to submit questions that we will ask of the panel in writing so that they will be 

included in the Record. 

Mr. DELAHUNT. I thank the Chair. What we are trying to do here 

is define what the problem is and the magnitude of the problem. 

Now, I heard the figure 100 million. I don’t know where that 

came from. Was that you, Mr. Chen? 

Mr. CHEN. That is $100 million in annual sales revenue. Less 

than 100 million between our two companies at Colt. 

Mr. DELAHUNT. That was just sales. But was there something 

about the cost of litigation amounting to $100 million. 

Mr. KEANE. It is my best estimate that the cost—— Mr. DELAHUNT. What do you base that estimate on, Mr. Keane? 

Mr. KEANE. I base that on conversations with gentlemen like Mr. 

Chen, conversations with insurance representatives and our own 

experiences, and reading cost estimates in various insurance publications. 

45

Mr. DELAHUNT. Well, could you give us that in writing, then? 

Mr. KEANE. I can’t give that to you, because I’m sure Mr. Chen 

would agree, those dollar figures for each company is confidential 

business information. 

Mr. DELAHUNT. Well, then what I would respectfully suggest is 

for you to pull the number of $100 million without having any empirical data is a best guess by Mr. Keane, and I think that is what 

we should accept in terms of the cost of the problems. Again, I am 

trying to define the problem to the industry. And I am hearing 

$100 million. And if I did not ask you the questions, Mr. Keane, 

we would be sitting here accepting them. And it appears to me that 

there is very little basis in reality for that $100 million figure. With 

that I yield back. 

Mr. CANNON. The time of the gentleman has expired. 

Mr. FEENEY. Mr. Chairman? 

Mr. CANNON. Mr. Feeney is recognized for 5 minutes. 

Mr. FEENEY. If I may, as we have not been called yet, I will take 

the Chairman up on his offer and I appreciate the panelists being 

here. 

Mr. Olson, there was a suggestion that American jurisprudence 

is being implicated by this bill. Is it the history of the first, say, 

200 years of the United States that manufacturers and sellers of 

arms are basically held to some standard of strict liability or accountability for anything that some subsequent purchaser does 

with those arms? 

Mr. OLSON. The answer is no. That was the not the rule. The 

courts would have never entertained litigation of that sort. And it 

is generally true, although the litigation that we are talking about 

today rests on many different theories, but those theories tend to 

have in common, they are either completely novel or have historical 

roots that are more like 10 years old, than 200 years old. 

Mr. FEENEY. Given the activist and evolving judicial jurisprudence in this area, I would to ask a historical question. The colonies adopted the Constitution only based upon the Bill of Rights, 

which include the second amendment. And could it have been that 

the Founders and the people who ratified the Constitution based 

only on the attachment of the Bill of Rights, could have wanted to 

preserve the theoretical right to bear arms while allowing judicial 

activism to effectively eliminate the production and the sale of 

what the Founders insisted be part of our individual rights? 

Mr. OLSON. I think the drafters of the second amendment and its 

parallel amendments in State constitutions would be spinning in 

their graves with the speed of jet turbines if they knew that the 

development of jurisprudence would have brought things to that 

sort of pass. There is a dispute, as we know, on whether or not the 

individual rights theory of the second amendment is good law. Certainly, if you believe that there is any individual right whatsoever 

conveyed by the second amendment, we have an answer to the 

Ranking minority Member’s question of ‘‘why guns’’? It is because 

the Constitution does not mention the right to eat cheeseburgers 

and does mention as a very important individual right the right to 

bear arms. 

46

Mr. FEENEY. And with respect to the other nine amendments, 

can you give me any examples where those amendments’ general 

thrust is toward collective rather than individual rights? 

Mr. OLSON. I think you make a very good point there. And while 

on the topic of other amendments, there is a parallel with the first 

amendment and the freedom of speech. In order to protect speakers 

from chilling effects, the Supreme Court has given us New York 

Times vs. Sullivan, which curtails State tort litigation in order to 

make sure that one State cannot haul in a national newspaper 

under overly light grounds and bankrupt that newspaper by a jury 

verdict. Tort jurisprudence is not allowed completely free reign 

when it comes up against constitutional values, like speech or potentially the Second Amendment. 

Mr. FEENEY. Finally, Mr. Olson, you have not advocated that 

manufacturers or sellers of weapons who are negligent in their own 

right be defended by congressional legislation, have you? 

Mr. OLSON. This law, in some respects, actually does not go as 

far as, I think, Congress would be justified in going. As I understand it, this law does not try to wipe out all the different grounds 

for suing manufacturers and dealers, but to target the ones that 

are considered the most abusive, and I think it is quite justified in 

doing that. 

Mr. FEENEY. Thank you, I yield back the balance of my time. 

Mr. CANNON. I am impressed. If I have been keeping track correctly, three times we have had the time yielded back before we 

had the light turn red. Thank you, Mr. Feeney. Would you like to 

yield some time, Mr. Feeney, or would you like 5 minutes, Mr. 

Carter? I think we will go to the other side first then. Thank you. 

Mr. Watt, did you seek recognition? What is your name again? 

Mr. Scott? What a day. Two handsomest guys in Congress. Mr. 

Scott, did you seek recognition? 

Mr. SCOTT. I will take Mr. Watt’s time. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. SCOTT. Thank you. In the finding, Mr. Keane, on the finding 

number one, citizens have a right protected by the second amendment to the United States Constitution to keep and bear arms, I 

notice it says ‘‘citizens’’ and not ‘‘a citizen.’’ there is no individual 

right in the Constitution to bear arms, is there? 

Mr. KEANE. I would wholeheartedly disagree with you. 

Mr. SCOTT. Could you name a Supreme Court case that has 

found an individual right to bear arms in the Constitution? 

Mr. KEANE. There is no Supreme Court decision on that point. 

There is a——

Mr. SCOTT. Thank you. Are there Supreme Court cases that rules 

to contrary? 

Mr. KEANE. Not to my knowledge. But there is writing by the Supreme Court in dicta recognizing an individual right, yes. 

Mr. SCOTT. On final judgment? 

Mr. KEANE. I said in dicta. There is writings by the Supreme 

Court recognizing individual right, and I would be happy to provide 

that. 

Mr. SCOTT. Let me get it straight. Can you name a case where 

the court ruled an individual right to bear arms? Can you name a 

case? 

47

Mr. KEANE. As I have indicated, I don’t believe the Supreme 

Court has ever definitively ruled on that issue; however, there is 

dicta in Supreme Court decisions recognizing an individual right. 

I would be happy to provide the cases that the court discusses it 

in dicta. 

Mr. SCOTT. But you cannot name—— Mr. KEANE. As I sit here now, no. I cannot. 

Mr. SCOTT. The president of the NRA was asked the same question, and he could not come up with a case either last time we had 

a hearing on gun control. 

Can somebody give me a kind of case that can win today that 

will not be able to win under this bill? You have exempted intention and criminal acts in transferring. You have exempted breach 

of contract. You have exempted defect in design when used as intended. What kind of case can be brought today that cannot be 

brought under this bill? 

Mr. LEMONGELLO. That would be mine, sir. 

Mr. SCOTT. And how can you win today and can’t win under the 

bill? What part of the bill kills your case? 

Mr. LEMONGELLO. I would like to address that to my lawyer to 

answer that question. 

Mr. CANNON. The Chair is willing to have the gentleman step 

forward and answer the question if he would like. If you would announce your name for the record. 

Mr. HENIGAN. Thank you, Mr. Chairman. My name is Dennis 

Henigan, and I am an attorney with the Brady Center to Prevent 

Gun Violence, and very honored to represent Detective Lemongello 

and Detective McGuire in their lawsuit against this gun seller and 

gun manufacturer. 

Their lawsuit is an excellent illustration of the kind of case that 

is highly meritorious, and yet would be barred by this bill, because 

it involves clearly negligent conduct by a gun seller. But there have 

been, as Detective Lemongello said, no criminal charges brought 

against that gun seller, no finding that that gun seller violated any 

statute, and yet it was clearly irresponsible conduct. 

Most negligence cases that are brought in courts do not involve 

illegal conduct. They involve irresponsible conduct. And yet this 

statute would not only require that the contact be illegal, but that 

it would be willfully illegal, which is extremely difficult to prove. 

So it is an excellent example of the kind of case brought by an individual who was victimized by gun industry irresponsibility that 

would be barred—unfairly in our judgment—by this legislation. 

And I might add, a judge in West Virginia has already held that 

under the generally applicable principles of West Virginia law, this 

is a valid case and should go forward toward trial. This bill, if it 

passed into law, would override that judge’s decision in the service 

of preferential treatment for a single industry. 

Mr. SCOTT. Do you do products liability cases? 

Mr. HENIGAN. Yes, I do, Congressman. 

Mr. SCOTT. Defect in design is exempted when used as intended. 

Does ‘‘when used as intended’’ change the product liability standard? 

Mr. HENIGAN. Quite radically, Congressman Scott. Actually there 

are many cases involving many kinds of dangerous products in 

48

which manufacturers of those products are held strictly liable in 

product liability because they failed to install a feasible safety feature that would reduce the risk of injury from unintended use of 

a product. For example, automobiles. Most automobile accidents 

are caused by some kind of unintended use of the car. Not intended 

at all by the manufacturer. Sometimes it is illegal use of the car. 

Speeding for example. And yet our jurisprudence would hold those 

manufacturers of automobiles to a responsibility to make cars 

crashworthy. We do not let them off the hook because the use is 

unintended. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. CANNON. You are welcome to stay at the table if you wish. 

And now the Chair recognizes the gentleman from Texas for 5 minutes, Mr. Carter. 

Mr. CARTER. Mr. Chen, a question was asked earlier, and I don’t 

understand the answer. Maybe you can help me. As I understand 

this bill, this is designed—it is defined by the term ‘‘unlawful activity.’’ and it is to prevent someone from suing for the unlawful use 

of a firearm. The exemption that has been talked about is used as 

intended, the intentional use of a firearm, and that term could be 

a term that could be submitted to a jury to find out if really you 

intend to use a gun by dropping it is an intended use of a gun. So 

that would not necessarily exempt you from manufacturer’s liability. Would it? Is that the way you read this? 

Mr. CHEN. That is not the way that I read it. The fact of the matter is that we as a manufacturer would be liable, under traditional 

product liability theory, meaning that if the gun were defectively 

designed or manufactured, or there was a failure to warn, we 

would still be on the hook. This bill would not make that case immune from the plaintiffs pursuing their rights against the seller. 

Mr. CARTER. A jury could common sensically say just setting a 

gun on a shelf is using it as intended. Accidentally dropping the 

gun on the floor is using it as intended? 

Mr. CHEN. That is correct. That is correct. But what Mr. 

Lemongello is arguing is that here is a situation where the manufacturer should be liable for the misuse of that firearm. There are 

many links of the chain between the manufacturer and the person 

who pulled the trigger, the one who was responsible for causing the 

injury to Mr. Lemongello. What we are saying is that if there is 

no causation, the manufacturer, for that matter, the entire industry, should not be responsible. 

In the NAACP case here that we are talking about, or had talked 

about earlier, the plaintiff’s attorney is trying to find the entire industry liable, even though the incident did not even involve their 

brand of firearm. This is almost like a speeding car—somebody 

drives a speeding car recklessly and crashes into somebody and 

kills them, and that speeding car were a Chrysler, it is like the 

plaintiff’s lawyer saying well, GM and Ford and everybody else 

should be a codefendant as well. This is what we are trying to stop, 

these type of abusive practices. 

Mr. CARTER. It strictly goes to the intended use. I tried a case 

where a man sharpened a toothbrush in a jail cell and threatened 

a jailer with it and got 20 years in prison for threatening a jailer 

with that sharpened toothbrush. And a jury found that toothbrush 

49

was a deadly weapon. That jury finding is established law and has 

been appealed and held up. 

So would we have to worry about looking at the liability of the 

toothbrush industry? Sometime you have to look at the intended 

use of the product. That is what you are arguing? 

Mr. CHEN. Yes, sir. 

Mr. WATT. Will the gentleman yield before he yields back? 

Mr. CARTER. Yes. 

Mr. WATT. I just wanted to direct the gentleman’s attention to 

the language at the top of page 8 of this bill that deals not only 

with manufacturers, but deals with sellers. And that is where Mr. 

Lemongello—Detective Lemongello is directing here. He is not 

bringing any action against the whole industry. He is talking about 

this seller. And this bill is so broad that it would eliminate that 

kind of action against the seller, whether or not the manufacturer 

was add as a defendant or not. So you just need to look at the language. 

Mr. CARTER. Will you yield back? 

Mr. WATT. Yes. 

Mr. CARTER. It was my understanding from the testimony that 

we heard, no one has sought any remedies or sought to find that 

this seller had illegally sold these weapons or sold in violation of 

the rules. According to what the testimony was from Mr. 

Lemongello, nobody has pursued that route. If it has not been pursued, then the lawsuit was going to be valid under this law. 

Mr. WATT. Will the gentleman yield? It hadn’t been pursued 

criminally, but the question is whether Mr. Lemongello is going to 

be able to pursue it civilly without some criminal pursuit of this. 

Mr. CARTER. I understand that, but there is a route to get to the 

civil lawsuit. If it was an illegal sale of a weapon, then the illegality sets aside the terms of this Act that we are passing here and 

allows him to go to court based upon the illegal activity. 

Mr. FEENEY. Will the gentleman from Texas yield? 

Mr. CARTER. I yield. 

Mr. FEENEY. On the same page 8—— Mr. CANNON. The gentleman’s time has expired. Mr. Delahunt is 

asking for unanimous consent that we extend the time by 2 minutes. Objection not being heard, the gentleman is recognized for 2 

minutes. And Mr. Carter it is your time. 

Mr. CARTER. I yield. 

Mr. FEENEY. I thank my colleagues, and all of my colleagues. Actually the subprovision, the second exclusion from the effects of 

this bill deals with any action brought against a seller for negligent 

entrustment or negligence per se. The sellers are still going to be 

held accountable for negligence per se at a minimum if this bill is 

passed. And I think Mr. Lemongello will get his day in court. He 

may or may not have a more difficult burden because the strict liability theories are presumably tossed out if this bill takes effect. 

Mr. CANNON. Will the gentleman from Texas yield? 

Mr. CARTER. I yield. 

Mr. CANNON. I, perhaps Mr. Lemongello or Mr. Henigan, your 

counsel, you could clarify for us. Are you suing the industry? How 

many manufacturers in the industry? And are you claiming negligent entrustment or the violation of any State or Federal laws? 

50

Mr. HENIGAN. I would be happy to clarify that, Mr. Chairman. 

This lawsuit is against a single gun seller, a gun dealer, and a single gun manufacturer who failed to establish minimum requirements for its dealers that are even consonant with what Mr. 

Keane’s organization recommends. So it is one seller and one dealer. 

Mr. CANNON. Are the facts that you just stated, is that essentially the context for a negligent entrustment claim? 

Mr. HENIGAN. Let me explain why the negligent entrustment exception, as defined by this statute—because that is the important 

thing—what this statute defines as negligent entrustment would 

not apply to Mr. Lemongello’s lawsuit. It would not apply because 

it requires the direct sale of a gun to the person who then misuses 

the gun. Whereas, in fact, this was a sale to a straw buyer for a 

gun trafficker. Neither of those people fired the gun. Then it went 

into the hands of the criminal who did fire the gun.So negligent entrustment does not help this case. This is a case of simple negligence. 

Secondly, the doctrine of negligence per se does not even apply 

under West Virginia law. There is specific case law in West Virginia that that doctrine does not each apply under West Virginia 

law. So neither of those exceptions would help this case. 

Mr. CANNON. Are you alleging any violation of Federal or State 

law on the part of the defendants in your lawsuit? 

Mr. HENIGAN. No, we are not, your Honor. It is like most negligence cases, it does not allege a violation of a statute, it alleges 

irresponsibility. And that is the special preference that is given the 

gun industry, one of them, in this statute. Because this statute 

seems to require not only a violation of the law to bring a negligence case, but a willful violation. That even is beyond what is 

required in many criminal cases, Mr. Chairman. 

Mr. CANNON. Not to argue, but the question is going back to the 

purchase. In other words, you have to have a link back to the seller 

or the manufacturer and we do have a long history of law there. 

But I see that the gentleman’s time has expired. I yield back my 

time. The gentleman’s time having expired, Mr. Conyers, do you 

seek recognition? 

Mr. CONYERS. I guess I will take 5 minutes. 

Mr. CANNON. The Chair recognizes the distinguished Ranking 

Member of the full Committee, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, sir. Mr. Chairman, before I begin my 

time, is there any contemplation of a second round of questions? 

Mr. CANNON. Many of the Members who are here have other 

commitments, including me with the Resources Committee in an 

area where I am one of the few people who have expertise, and so 

I am not, at this point, contemplating a second round. 

Mr. CONYERS. Well, could you leave someone else to try to carry 

on as acting Chair in your stead if you left? 

Mr. CANNON. That is possible. May I just poll the panel. How 

many people would like another round of questioning? 

Mr. CONYERS. I might. I don’t know where this questioning is 

going to go. 

Mr. CANNON. Anybody else on the minority? Anybody on the majority side like a second round? Mr. Ranking Member, I am anxious 

51

that you have as much time as you need, and at the end of your 

5 minutes, if you feel like you need more, we would certainly entertain a unanimous consent request. 

Mr. CONYERS. That is very generous. I thank you for that. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. CONYERS. Thank you, sir. I wanted to begin by welcoming 

Chuck Cunningham from the NRA. Good to see you again, Chuck. 

I hope you will stop by my office and talk to me a little bit this 

time. I am trying to look at this thing as fairly as I can. 

I wanted to ask, C-SPAN is here. Who is the other cameraman 

here? Who are you, sir? You can answer. 

The CAMERAMAN. Impact Imaging. 

Mr. CONYERS. And who brought you here? 

The CAMERAMAN. I was called on the phone. 

Mr. CONYERS. By whom? 

The CAMERAMAN. Impact Imaging. 

Mr. CONYERS. And who are they working for? 

The CAMERAMAN. I have no idea. 

Mr. CANNON. Does anyone in the audience know who hired——

Mr. CONYERS. Wait a minute. Thanks for your help, Mr. Chairman. 

Mr. CANNON. I just want the gentleman to know that on both 

sides we care about these issues. 

Mr. CONYERS. I know. I noticed. Chuck, you did not have anything to do with him coming here did you? Chuck Cunningham? 

Mr. CUNNINGHAM. Yes, sir? 

Mr. CONYERS. Did NRA—did you have anything to do with them 

coming here? 

Mr. CUNNINGHAM. Nope. 

Mr. CONYERS. Just asking, guys. No harm intended. 

I want to welcome Mr. Walter Olson of the Manhattan Institute. 

But you are located in D.C.; right? 

Mr. OLSON. No, in Manhattan. There may be a Washington office 

of it, but I am in Manhattan. 

Mr. CONYERS. Your office is in New York? 

Mr. OLSON. New York. 

Mr. CONYERS. You do not have to answer this if you do not want 

to, but are you a person of libertarian persuasion? 

Mr. OLSON. I am often accused of that. 

Mr. CONYERS. Yes, but is it true? 

Mr. OLSON. I think it is pretty true, yes. 

Mr. CONYERS. It is? Okay. Some of my best friends are libertarians. 

Mr. OLSON. It is pretty true. Yes. 

Mr. CONYERS. Just asking. Just setting a foundation for a few 

questions. Okay. Now that we have got all of this cleared up. Mysterious cameraman, witness accused of libertarianism, which it 

turns out is true, nobody knows where the camera came from. 

Okay, now I turn to my good friend, Mr. Chen, who I have previously had delivered to him the Consumer Federation of America 

one-pager. And I hope you have had a chance to look at it. There 

are only three questions there. Could you go through these with 

me, Mr. Chen, to point out where you agree and where you may 

52

take issue with the Consumer Federation of America on this subject matter? 

Mr. CHEN. Most certainly. 

Mr. CONYERS. All right. Go ahead. 

Mr. CHEN. Well, the first point is proposed legislation would 

block suits filed by individual consumers seeking to hold the gun 

industry accountable for irresponsible manufacturing or selling of 

guns. 

That certainly would not be true. You know, we manufacturers 

would still be responsible for, as I said before, negligent design or 

manufacture of guns or failure to warn or other product liability 

cases or violation of warranty law or under contract. So that is not 

true. 

Federal immunity would also give manufacturers and sellers special protection from the law. I don’t know of what special protection 

they are talking about. They do mention about Mr. Lemongello’s 

case. What we are trying to do here is to provide a preemption 

from the types of suits that would put an entire industry at task 

where there is a failure of causation, there is a lack of causation 

in order to prove one of the members of our industry to be liable 

in the traditional tort sense. 

When I went to NYU Law School, I never learned about these 

types of cases where you can bring an entire industry to court and 

then try to seek market share liability. 

Third is in the absence of Federal health and safety regulation 

our civil justice system is the only way to make the gun industry 

accountable when its negligent conduct harms consumers. 

Our company—— Mr. WATT. I ask unanimous consent for an additional 5 minutes 

for Mr. Conyers. 

Mr. CANNON. Hearing no objection, so ordered. 

Mr. WATT. Will the gentleman yield? 

Mr. CONYERS. Yes, sir. 

Mr. WATT. Because I wanted to go back to the first point: The 

proposed legislation would block suits filed by individual consumers. Under that point, the point is made that law enforcement 

officials are prosecuting the alleged Washington, DC area snipers 

for their crimes. The families who lost relatives in the attacks have 

also filed a civil lawsuit to ensure that those responsible for arming 

the snipers are held accountable. I am wondering—and includes 

the Bulls Eye Shooters Supply, the gun store that claims it lost the 

assault rifle used by the alleged snipers along with many other 

guns in recent years. 

I am wondering whether Mr. Chen has any reaction to that while 

you are at it. I yield back to the gentleman. I just did not want 

to gloss over that one point just by looking at the bold print. 

Mr. CHEN. Congressman Watt, my response to that is really two 

words: proximate cause. That is one of the elements that you have 

to prove. If there was a link between the shooter and Bulls Eye 

Shooters Supply, that would be proximate cause that would implicate this particular retailer. Then this proposed legislation, as I understand it, would not exclude those types of suits from being 

brought. 

Mr. WATT. I yield back to the gentleman. 

53

Mr. CONYERS. I yield to the gentleman from Massachusetts. 

Mr. DELAHUNT. Yes, I thank the Ranking Member for yielding. 

I have to disagree, Mr. Chen, with your interpretation, because my 

reading of the statute—and I appreciate your using the common 

law terms like proximate cause. I think those are principles I 

would hope that you would agree, and I am sure you learned them 

at NYU, that they are embedded in our jurisprudence, and that we 

do not want to abrogate these principles that have really guided 

our rule of law, are the basis for our rule of law. 

But having said that, I understand, Mr. Chairman, there is a 

markup tomorrow on this particular proposal? 

Mr. CANNON. The gentleman is correct. 

Mr. DELAHUNT. You know, we are really rushing this fast. And 

I understand, there is a sense of urgency. But I did pose a question, I think, to Mr. Keane in terms of getting my data, in terms 

of defining what the problem is. I did not realize Mr. Cunningham 

out there was with the NRA, but if they could provide us that information, so that at least we could have a reasonable intelligent 

markup, it would help to define what the magnitude is. Mr. Keane, 

you look like you want to say something. 

Mr. KEANE. The piece of information you were asking for was 

some sort of documentation of the total industry wide cost of defending this litigation. As I indicated, there is no place where that 

information is collected and you are accurate, that is my best educated guess. 

Mr. DELAHUNT. If you could give me the aggregate and I am sure 

it is available somewhere, maybe Mr. Cunningham has it in terms 

of jury verdicts that have been returned. 

Mr. KEANE. I don’t know what the aggregate is. I know what the 

Hamilton verdict was $4 million. 

Mr. DELAHUNT. Let me ask about the Hamilton verdict. 

Mr. WATT. Will the gentleman yield? 

Mr. CONYERS. Yes, I yield. 

Mr. WATT. I appreciate it. There is some suggestion that there 

is a proximate cause between the markup of this bill tomorrow and 

the pending NRA convention 2 weeks later. 

Mr. DELAHUNT. I respect that proximate cause. 

Mr. WATT. I wanted the gentleman to be aware of that. 

Mr. CANNON. If the gentleman would yield, proximity in time is 

not necessarily proximity in cause, without denying any proximity 

in cause. 

Mr. DELAHUNT. The Hamilton case, was that $4 million actually 

paid? 

Mr. KEANE. It was never paid because the case was reversed by 

a unanimous court of appeals ruling in New York. 

Mr. DELAHUNT. Mr. Keane, please, that is disingenuous to say in 

front of this Committee there was a $4 million verdict, when, in 

fact, the case was overturned. With that, I yield back to Mr. Conyers the remaining time. 

Mr. CONYERS. Well, Mr. Chen, you were saying? You were saying—you were going through these three items and you were on 

the third item. 

Mr. CANNON. If you would like to go through the third item. 

There are three our four items, Mr. Conyers? 

54

Mr. CONYERS. Three. 

Mr. CANNON. If you would like to go through the remaining 

items, that would be fine and then time will expire. 

Mr. CHEN. Thank you. Just to repeat it: In the absence of Federal health and safety regulation, our civil justice system is the 

only way to make the gun industry accountable when its negligent 

conduct harms consumers. 

We have at Colt a very excellent record of safety regarding our 

products. We have our ISO 9000 first class gun line that has been 

recognized, in fact, by the U.S. military as part of the quality certification program. We have rigorous procedures that we follow in 

order to make the highest quality, most reliable, reasonably safe 

product that we possibly can do. Indeed we have been making 

these firearms for, well, almost 2 centuries. 

And so we are constantly improving our processes. And to the extent that any of our firearms are defective, well, we will have to 

answer to that in the marketplace and also in the courtroom. And 

this bill will not make us immune from addressing defective products of Colt. 

Mr. CONYERS. So, you do not agree with any of the three points 

that the Consumer Federation of America have made about this 

legislation? 

Mr. CHEN. That is correct. 

Mr. CANNON. The gentleman’s time has expired. 

Mr. CONYERS. Just a moment, Mr. Chairman. Can I seek an additional 1 minute? 

Mr. CANNON. Certainly, without objection, so ordered. 

Mr. CONYERS. All right. I thank you for your generosity. Could 

you read for me at page 9, parenthesis 5 in the bill. 

Mr. CHEN. I’m sorry; I do not have the bill. 

Mr. CONYERS. We can get a copy for you. 

Mr. CANNON. Do we have a copy moving down to the witness? 

Does this gentleman have a copy of the bill, Mr. Conyers? 

Mr. CONYERS. I don’t know if he does or not. He is looking. He 

is looking very carefully. 

Mr. CANNON. While the bill is going down, let me point out that 

I have not yet taken my 5 minutes and would like to do it, so if 

we could move this expeditiously, but whatever time you need to 

answer this, Mr. Conyers. 

Mr. CONYERS. All right. 

Mr. CANNON. Would you repeat for the witness? 

Mr. CONYERS. Page 9, top of the page, parenthesis 5. 

Mr. CHEN. And in the context of this subparagraph, this 

would——

Mr. CONYERS. You can just read that. You do not have to explain 

anything. 

Mr. CHEN. An action for physical injuries or property damage resulting directly from a defect in design or manufacture of the product when used as intended. 

Mr. CONYERS. All right. Now, ‘‘when used as intended’’ is the 

phrase that is pretty interesting, isn’t it? Does this block product 

liability type cases? Or could it be interpreted to do so? 

Mr. CHEN. You mean focusing on ‘‘when used as intended’’? 

Those four words? 

55

Mr. CONYERS. No, let’s take the whole thing, 5. Paren 5, what 

you just read. Come on, you have gone to New York University, a 

top ranked law school. This is elementary. 

Mr. CHEN. If I put a gun in my mouth and I pull the trigger and 

it was loaded and it killed me, that is not using a gun as intended, 

sir. 

Mr. CANNON. The gentleman’s time has expired. 

Mr. CONYERS. Just a moment, he did not——

Mr. CANNON. We have explored the issue, Mr. Conyers, to some 

length. 

Mr. CONYERS. You explored it, Mr. Chairman. Could I get an additional minute, sir? I hate to inconvenience the Chair. This will 

be my last 1 minute. 

Mr. CANNON. I can’t imagine the gentleman actually inconveniencing me. I do have a problem. I have some questions I would 

like to ask, and I have a Resources Committee markup on a bill 

dealing with technical issues dealing with coal leasing, which I am 

the only Member that really has much experience. So I would like 

to get over there. 

Mr. CONYERS. The last 1 minute. If you feel I do not deserve it, 

you can deny me, Mr. Chairman. 

Mr. CANNON. I am trying to work through the actual timing. I 

could turn the Chair over to someone else if it is going to be more 

than 1 minute. If it is truly 1 minute. Hearing no objection, the 

gentleman is recognized for another minute. 

Mr. CONYERS. I thank you again for your generosity. Does—could 

5 be interpreted as blocking product liability type cases? Mr. Chen? 

Mr. CHEN. No, not in my mind. When you say ‘‘when used as intended,’’ you have to refer to the safety and instruction manual, 

okay? And there are a lot of basic safety rules that one must follow. 

There is a responsibility when you have a firearm and it is very 

important that you follow the instructions, and you be certified and 

you be trained and you be a responsible user of that firearm. And 

then when you are finished with using that firearm, you safeguard 

so that it cannot get into the hands of others. 

Mr. CONYERS. What the heck do you think 5 means then, if it 

does not block product liability? 

Mr. CHEN. No, I think it does block—I do not think it blocks 

product liability in the traditional sense. 

Mr. CONYERS. Are you sure of that? 

Mr. CHEN. Yes, I am, sir. 

Mr. CANNON. The gentleman’s time has expired. The Chair recognizes himself for 5 minutes. 

Mr. FEENEY. Mr. Chairman? If I might? 

Mr. CANNON. The Chair recognizes himself for 5 minutes and 

yields time to the gentleman from Florida. 

Mr. FEENEY. I am very grateful to the Chair. Mr. Lemongello’s 

counsel, is your name—can you state your name again? 

Mr. HENIGAN. Yes, Dennis Henigan. 

Mr. FEENEY. Mr. Henigan, did you give an interview with Peter 

Boyer to the New Yorker Magazine on May 17, 1999? Roughly? 

Mr. HENIGAN. I believe that is when the magazine was published, Congressman, but yes, I was interviewed by Mr. Boyer. 

56

Mr. FEENEY. Is it your position that George Washington and the 

Founding Fathers had some sort of pathological mental disease? 

Mr. HENIGAN. No it is not, nor did I ever say anything like that 

to Mr. Boyer, nor does he claim that I said anything like that. 

Mr. FEENEY. You were quoted as saying, and I am quoting you 

from that article, I believe: It is important to steer the argument 

about guns away from the problematic area of criminal use with its 

inconvenient focus on criminals—and you continued that, in 

quotes—guns should be thought of as pathogens and gun ownership, perhaps, as a disease. 

Is that a misquote? 

Mr. HENIGAN. Congressman, I think if you will look at that more 

carefully, there are not quote marks around that. What the author 

of the article was doing is he was giving his interpretation of what 

he thought was the public health approach to gun violence. I don’t 

think that is a fair characterization of the public health approach 

to gun violence at all, but I did not say that. He does not actually 

quote me as saying that. He is characterizing a particular point of 

view with which I do not endorse. 

Mr. CANNON. Reclaiming my time, does the gentleman have further questions? 

Mr. FEENEY. No. Do you believe that gun manufacturers should 

be held strictly liable for the use of their products? 

Mr. HENIGAN. Not simply for use of their product. They should 

be held strictly liable if their products are defective in design or 

manufacture. They should be held liable in negligence if they act 

irresponsibly. 

And in that connection, Mr. Chairman, there was a point made 

earlier, there was some questioning about the case brought by the 

D.C. area sniper victims. I am also counsel in that case and there 

was an assertion made that there was no—there could be no showing of, quote, proximate cause in that case. There could be no showing of a link between Bulls Eye Shooter supply and the sniper 

shooting. But in point in fact, Mr. Chairman, the link is quite 

strong because that very rifle that was confiscated from the sniper 

suspects was in the inventory of Bulls Eye Shooter Supply barely 

2 months before it started to be used in the sniper shootings. 

One of the snipers was in that gun shop at one point. We know 

that. And, in fact, that gun dealer cannot account for the disappearance of that gun, did not report it missing or stolen until 

after it was confiscated from the snipers. 

So it is a strong case of negligence. There has been no criminal 

action brought against that dealer and it is a strong causal link between that dealer’s conduct and the shooting that victimized those 

sniper victims. 

Mr. CANNON. Thank you, Mr. Henigan. I might point out this is 

not a jury for the purposes of trying that case. We appreciate your 

clarification on the article and the quote, and that information. 

Now, I just have a couple of things I would like to do. One, I 

would like to read a quote from the City of Boston which has already dismissed its lawsuit against the firearms industry stating 

that during the litigation, the city has learned that members of the 

firearm industry have a long-standing commitment to reducing 

firearm accidents and reducing criminal misuse of firearms and 

57

stating the city and the industry have now concluded that their 

common goals can best be achieved through mutual cooperation 

and communication, rather than litigation, which has been expensive to both industry and taxpayers, time consuming, and distracting at a time of national crisis. 

Mr. Chen, you talked a little bit very early in your first presentation about what the effect of these lawsuits is. It seems to me 

that among other things, these lawsuits and the costs of lawsuits 

and the cost of defending the lawsuits is going to have a chilling 

effect on the industry’s ability to invest in new technologies to 

make firearms safer. Is that not true? 

Mr. CHEN. Well, that is very true. In fact, it is ironic that Colt 

was one of the companies that is looking at smart gun technology, 

and we had spent millions of dollars in trying to develop a product 

that might be usable by law enforcement. But we were stymied by 

all of this gun litigation and as a result, all of our money is being 

diverted to defend ourselves in these lawsuits. And we have had to 

slow down in our smart gun technology. 

Mr. CANNON. Thank you. Let me point out, I think that the 

whole panel here agrees that we need to do things to make guns 

safer. And we recognize that is a complicated process and it is 

going to take some significant technological improvements before 

we get to a point where an officer loses his gun and is injured with 

it, before that safety element can take place. 

We appreciate the industry’s work on that and hope you will continue and hope you have the resources to do that. 

Mr. Olson, you talked about the antigun forces who decided that 

the democratic process doesn’t work, and so they are taking these 

issues to the judiciary. What some have recently called the imperial judiciary. We are trying to change the law on product liability. 

Are there other things that Congress can do to help reign in the 

imperial judiciary or those two, or two judges around the country 

who can transform the law by taking the interpretation thereof into 

their own hands? 

Mr. OLSON. I think the controversy we have been talking about 

this morning is deeply symbolic, including to a lot of people do not 

feel a direct stake in the gun debate, who do not believe in an individual right or the second amendment. I notice that the National 

Association of Manufacturers, as part of its commitment to a common sense legal system has endorsed preemption, at least at the 

State level. This case is the most flagrant as far as an end run 

around Congress’ own rulings. This is the case that has produced 

the wildest statements by lawyers involved on the plaintiff’s side 

such as John Cole: What has happened is the legislatures have 

failed. Congress is not doing its job. Lawyers are taking up the 

slack. So says Cole. 

Wendell Gautier, who organized the municipal suits, Gautier’s 

notion is that the plaintiff’s bar is a de facto fourth branch of Government. That is the American Lawyer describing it. 

There is a flagrantness about what they are trying to do in this 

case, which has implications for all the other ways in which people 

might try to avoid the authority of this body, Congress. 

Mr. CANNON. It is flagrant and the amazing thing is how obvious 

these people are in how they are taking their case. 

58

Mr. Keane, is there anything you would like to add before we 

close this hearing? 

Mr. KEANE. To Mr. Delahunt’s point as to the size of verdicts, the 

problem here is twofold. One, a single multi-hundred million dollar 

verdict against the industry will destroy it and bankrupt it, and 

that is exactly what Mr. Henigan is pursuing in these cases. Mr. 

Henigan, by the way, represented the City of Boston, whose statement you just read. 

Secondly, as Mr. Olson pointed out, is that these cases that seek 

injunctive relief, like the current NAACP trial before Judge 

Weinstein, seek to circumvent the legislative branch by having one 

judge issue injunctive orders that would apply throughout the 

United States. And in fact, this legislation protects the right of individual States to decide how—what the law should be with respect 

to how firearms are sold in their States, not one unelected judge 

sitting in a courtroom in Brooklyn. 

Mr. HENIGAN. Mr. Chairman? 

Mr. CANNON. Actually, I was going to say something very nice 

about you, Mr. Henigan. 

Mr. HENIGAN. Do not let me interrupt you. 

Mr. CANNON. We appreciate the rational process involved here 

and your work with the city of Boston. I want to thank the panel 

for its patience in this regard, and for the Members of the Committee who have spent a great deal of time here today on this 

issue. Let me just remind the panel Members, the Members of the 

Committee, if they have any questions, we are happy to get those 

to the panel. We will leave the record open for 5 days. 

Mr. WATT. Could I ask the Chairman a question? 

Mr. CANNON. Certainly. 

Mr. WATT. Just about the bill. I am looking at the top of page 

8, and this seems to block suits for damages. I am wondering 

whether the bill even deals with the injunctive situation that Mr. 

Keane keeps referring to with the NAACP. As I understand, the 

NAACP is not even seeking damages; they are seeking an injunction. And I am wondering whether you intend the bill to relate to 

that, because it does not seem to. And maybe you want to look at 

that between now and tomorrow. Maybe you will broaden the bill. 

I don’t know. 

Mr. CANNON. I suspect not, and I think the gentleman has probably made a correction on the record that is worthwhile. Anything 

else? 

Mr. WATT. That is all. 

Mr. CANNON. Pardon me. I actually have to go. And so we will 

draw the hearing to a close. And I wanted to thank everyone for 

their help and would ask the panel members to respond to any 

questions fairly quickly so that we can get them in the record. And 

this hearing is adjourned. 

Mr. CONYERS. Mr. Chairman before you adjourn, is there some 

reason that we can put on the record for why the hearing is today 

and the markup is tomorrow? 

Mr. CANNON. The hearing is actually adjourned, but I think we 

can keep the record open for a moment just to say that I am not 

sure why we are moving it so quickly. We are happy to have the 

hearing and do our Committee work. And the full Committee will 

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take it up tomorrow, and that is probably a question for the full 

Committee. If nothing further, the hearing is actually adjourned at 

this point.] 

[Whereupon, at 11:50 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

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ATTACHMENT 1

List of Lawsuits

1. Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., et al., 123 

F. Supp. 2d 245 (D.N.J. 2000) (plaintiff’s claims dismissed); dismissal affirmed 

by U.S. Circuit Court of Appeals at 273 F. 3d 536 (3d Cir. 2001).

2. City of Philadelphia, et al. v. Beretta U.S.A. Corp., et al., 126 F. Supp. 2d 882 

(E.D. Pa. 2000) ( plaintiff’s claims dismissed); dismissal affirmed by U.S. Circuit 

Court of Appeals at 277 F.3d 415 (3d Cir. 2002).

3. Mayor Joseph P. Ganim, et al. v. Smith & Wesson Corp., et al., Civil Action No. 

CV–990361279, Superior Court, Judicial District of Fairfield at Bridgeport 

(plaintiffs’ claims dismissed); dismissal affirmed by Connecticut Supreme Court 

on October 1, 2001 at 780 A.2d 98 (Conn. 2001).

4. The City of Atlanta v. Smith & Wesson Corp., et al., Civil Action No. 

99VS0149217J, State Court of Fulton County, State of Georgia; Georgia intermediate appellate court dismissed plaintiff’s claims on February 13, 2002 at 560 

S.E.2d 525 (Ga. App. 2002). The City did not appeal.

5. Alex Penelas, et al. v. Arms Technology, Inc., et al., Case No. 99–01941, Circuit 

Court, Eleventh Judicial Circuit, Miami-Dade County, Florida (plaintiffs’ claims 

dismissed); dismissal affirmed at 778 So.2d 1042 (Fla. App.). The Florida Supreme Court denied further review on October 24, 2001 at 799 So.2d 218 (Fla. 

2001).

6. Mayor Marc H. Morial, et al. v. Smith & Wesson Corp., et al., Civil Action No. 

98–18578, Civil District Court, Parish of Orleans; on April 3, 2001, the Louisiana Supreme Court at 785 So.2d 1 (La. 2001) held that the City’s suit was 

barred. The U.S. Supreme Court, on October 9, 2001, denied the City’s petition 

for a writ of certiorari. lllU.S.lll, 122 S.Ct. 346 (2001).

7. People of the State of New York, et al. v. Sturm, Ruger & Company, Inc., et al.,

Case No. 402586/2000, New York State Supreme Court, County of New York 

(plaintiffs’ claims dismissed); plaintiffs appealed to the Supreme Court of the 

State of New York, Appellate Division: First Department, Index No. 402586–

2000. Appellate oral argument was May 10, 2002.

8. The City of New York, et al. v. Arms Technology, Inc., et al., Case No. CV 00 

3641, United States District Court, Eastern District of New York (case stayed).

9. The City of Boston, et al. v. Smith & Wesson Corp., et al., Civil Action No. 99–

2590C, Commonwealth of Massachusetts, Suffolk County Superior Court; (plaintiffs abandoned their claims after taking many depositions and reviewing hundreds of thousands of pages of documents produced by defendants, as they 

‘‘learned that members of the firearm industry have a longstanding commitment 

to reducing firearm accidents and to reducing criminal misuse of firearms.’’) Attachment to ‘‘Plaintiffs’, the City of Boston and the Boston Public Health Commission, Unopposed Motion to Dismiss Pursuant to Mass. R. Civ. P. 41(a)’’ filed 

in City of Boston v. Smith & Wesson Corp., No. 99–02590–C (Suffolk County 

Sup. Ct. March 27, 2002).

10. Mayor James H. Sills, Jr., et al. v. Smith & Wesson Corp., et al., CA No. 99C–

09–283FSS, Superior Court, State of Delaware, New Castle County (plaintiffs’

claims dismissed and city chose not to appeal).

11. City of Gary, Indiana, by its Mayor, Scott L. King, v. Smith & Wesson Corp., 

et al., Cause No. 45D029908CT 0355, Lake Superior Court, Civil Division, East 

Chicago, Indiana (plaintiffs’ claims dismissed); plaintiffs appealed to Indiana 

Court of Appeals, Appeal No. 45A03–0105–CY–155 (affirmed dismissal of 

claims). Plaintiffs are seeking to appeal to Indiana Supreme Court.

12. City of Chicago, et al. v. Beretta U.S.A. Corp., et al., No. 98CH015596, Circuit 

Court of Cook County, Illinois, County Department, Chancery Division (plaintiffs’ claims dismissed); appealed by City to intermediate appellate court, City 

of Chicago, et al. v. Beretta U.S.A. Corp., et al., No. 00–3541, Appellate Court 

of Illinois, First Judicial District (dismissal of plaintiff’s claims overturned); appealed by defendants to Illinois Supreme Court, City of Chicago, et al. v. Beretta 

U.S.A. Corp., et al, No. 95253, in the Supreme Court of the State of Illinois (appeal pending).

13. Dennis W. Archer, Mayor of the City of Detroit, et al. v. Arms Technology, Inc., 

et al., Case No. 99–912658, State of Michigan, Circuit Court, County of Wayne 

(partial dismissal of plaintiffs’ claims); defendants appealed to intermediate appellate court, Edward H. McNamara, et al. and Dennis W. Archer v. Arms TechVerDate 0ct 09 2002 14:01 Jun 12, 2003 Jkt 000000 PO 00000 Frm 00075 Fmt 6601 Sfmt 6621 G:\WORK\COMM\040203\86266.000 HJUD1 PsN: 86266
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nology, Inc., et al., COA Case No. 227669, State of Michigan, Court of Appeals 

(appeal pending).

14. Edward H. McNamara, Wayne County Executive, et al. v. Arms Technology, Inc., 

et al., Case No. 99–912662, State of Michigan, Circuit Court, County of Wayne 

(partial dismissal of plaintiffs’ claims); defendants appealed to intermediate appellate court, Edward H. McNamara, et al. and Dennis W. Archer v. Arms Technology, Inc., et al., COA Case No. 227669, State of Michigan, Court of Appeals 

(appeal pending).

15. District of Columbia, et al. v. Beretta U.S.A. Corp., et al., Case No. 00CA000428, 

Superior Court, District of Columbia, Civil Division (plaintiffs’ claims dismissed 

on December 16, 2002, 2002 WL 31811717; plaintiffs have given notice of appeal).

16. James Foster-el, et al. v. Beretta U.S.A. Corp., et al., Case No. 0004700–00, Superior Court, District of Columbia, Civil Division (plaintiffs’ claims dismissed on 

December 16, 2002, 2002 WL 31811717; plaintiffs have given notice of appeal).

17. Patrick H. Mahoney, et al. v. Beretta U.S.A. Corp., et al., Case No. 00–005064, 

Superior Court, District of Columbia, Civil Division (plaintiffs’ claims dismissed 

on December 16, 2002, 2002 WL 31811717; plaintiffs have given notice of appeal).

18. Bryant Lawson v. Beretta U.S.A. Corp., et al., Case No. 00–0000428, Superior 

Court, District of Columbia, Civil Division (plaintiff’s claims dismissed on December 16, 2002, 2002 WL 31811717; plaintiff has given notice of appeal).

19. Laura Wallace et al., v. Beretta U.S.A Corp., et al., Case No. 01–001111, Superior Court, District of Columbia, Civil Division (plaintiffs’ claims dismissed on 

December 16, 2002; 2002 WL 31811717; plaintiffs have given notice of appeal).

20. City of Cincinnati v. Beretta U.S.A. Corp., et al., Case No. A9902369, Court of 

Common Pleas, Hamilton County, Ohio, Civil Division (plaintiffs’ claims dismissed on October 7, 1999); plaintiff appealed to intermediate appellate court, 

City of Cincinnati v. Beretta U.S.A. Corp., et al., Appeal No. C–99–729, First 

District Court of Appeals, Hamilton County, Ohio (affirmed dismissal of plaintiff’s claims); plaintiffs appealed to Ohio Supreme Court, City of Cincinnati v. 

Beretta U.S.A. Corp., et al., Case No. 00–1705, Supreme Court of Ohio (9/22/00) 

(reversed dismissal and remanded case to trial court). Plaintiff City Council recently voted to dismiss lawsuit and its lawyers will file a motion to dismiss 

soon.

21. Mayor Michael R. White and The City of Cleveland v. Hi-Point Firearms, et al., 

No. 1:99V1134, U.S. District Court, N.D. Ohio (defendants’ motion to dismiss denied); no appeal taken.

22. Mayor Sharpe James and The City of Newark, New Jersey v. Arcadia Machine 

& Tool, et al., Civil Action No. L–6059–99, Superior Court of New Jersey, Law 

Division: Essex County (denied, in part, defendants’ motion to dismiss); defendants appealed to Appellate Division, Case No. A–3098–01T3; (on March 11, 

2003, appellate court affirmed trial court ruling).

23. City of Jersey City v. Smith & Wesson Corp., et al., Case No. L2567–02, Superior 

Court of New Jersey, Hudson County (case filed April 17, 2002).

24. City of Camden v. Beretta U.S.A. Corp., et al., Civil Action No. L–451099, Superior Court of New Jersey, Law Division: Camden County (case stayed until recently).

25. City of St. Louis, Missouri v. Henry J. Cernicek, et al., Cause No. 992–01209, 

Circuit Court, City of St. Louis, Missouri, 22nd Judicial Circuit (defendants’ motion to dismiss argued on February 28, 2003).

26. National Association for the Advancement of Colored People v. A.A. Arms, Inc., 

et al., CA No. CV–99–3999, United States District Court, Eastern District of 

New York (currently in trial).

27. City of Los Angeles, City of Compton, City of Inglewood, and City of West Hollywood v. Arcadia Machine & Tool, et al., Case No. BC 210894, Superior Court, 

State of California; subsequently docketed as Firearms Cases, Judicial Council 

Coordination Proceeding, No. 4095, Superior Court, State of California, County 

of San Diego (defendants’ motion for summary judgment granted March 7, 

2003).

28. County of Los Angeles v. Arcadia Machine & Tool, et al., Case No. BC 214794, 

Superior Court, State of California, subsequently docketed as Firearms Cases, 

Judicial Council Coordination Proceeding, No. 4095, Superior Court, State of 

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California, County of San Diego (defendants’ motion for summary judgment 

granted March 7, 2003).

29. City of San Francisco, City of Berkeley, City of Sacramento, City of San Mateo, 

and County of Alameda v. Arcadia Machine & Tool, et al., Case No. 303753, Superior Court, State of California, subsequently docketed as Firearms Cases, Judicial Council Coordination Proceeding, No. 4095, Superior Court, State of California, County of San Diego (defendants’ motion for summary judgment granted 

March 7, 2003).

30. William L. Campbell v. Village of Dobbs Ferry, et al., Civil Action No. 97 CV 

7351, United States District Court (S.D.N.Y.)(Colt’s motion to dismiss granted).

31. Stephen Young v. Bryco Arms, et al.; No. 98L6684, Circuit Court, Cook County, 

Illinois (Colt dismissed on December 21, 2001, but some manufacturers not dismissed); consolidated for appeal with Anthony Ceriale v. Smith & Wesson Corp., 

et al.; and Obriela Smith v. Navegar, et al., and appealed to 1st Appellate Division. Presently consolidated on appeal to Illinois Supreme Court as Nos. 93678, 

93685 and 93728.

32. Anthony Ceriale v. Smith & Wesson Corp., et al., No. 99L5628, Circuit Court, 

Cook County, Illinois (Colt dismissed on December 21, 2001, but some manufacturers not dismissed); consolidated for appeal with Stephen Young v. Bryco 

Arms, et al. and Obriela Smith v. Navegar, et al., and appealed to 1st Appellate 

Division. Presently consolidated on appeal to Illinois Supreme Court as Nos. 

93678, 93685 and 93728.

33. Obriela Smith v. Navegar, et al., No. 98L13465, Circuit Court, Cook County, Illinois (Colt dismissed on December 21, 2001, but some manufacturers not dismissed); consolidated for appeal with Stephen Young v. Bryco Arms, et al. and 

Anthony Ceriale v. Smith & Wesson, et al., and appealed to 1st Appellate Division. Presently consolidated on appeal to Illinois Supreme Court as Nos. 93678, 

93685 and 93728.

34. Thomas Johnson, Sr. v. Beemiller Inc., et al, Civil Action No. CV 03 0066, 

United States District Court (E.D.N.Y.)(lawsuit recently filed).

35. Iris Prosper v. Accu-Tek, et al., Civil Action No. CV 97 2730, United States District Court (E.D.N.Y)(Colt’s dismissed).

36. Gladys Gerena, et al. v. Accu-Tek et al., Civil Action No. CV 97 3935, United 

States District Court (E.D.N.Y)(Colt’s dismissed).

37. Janice Sweeting v. A.A.Arms, et al., Civil Action No. CV 99 1461, United States 

District Court (E.D.N.Y)(Colt’s dismissed).

38. Monalisa Harris v. Accu-Tek, et al., Civil Action No. CV 98 5026, United States 

District Court (E.D.N.Y)(Colt’s dismissed).

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ATTACHMENT 2

Order and Fifth Amended and Restated Joint Plan of Reorganization


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ATTACHMENT 3A

COLT ALL-AMERICAN DOUBLE ACTION 9MM PISTOL RECALL


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ATTACHMENT 3B

COLT LIGHT RIFLE RECALL


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RESPONSES TO POST-HEARING QUESTIONS FROM WALTER OLSON

1. You testified that the United States Supreme Court in New York Times

v. Sullivan curtailed state tort litigation to ensure that the First Amendment 

rights of national newspapers were not undermined by jury verdicts based upon 

common law theories contrary to that right. Is there a comparable Supreme Court 

case limiting suits against the gun industry on constitutional grounds?

No, the Court has not to my knowledge ruled on the issue.

2. You testified that, as you understood the bill, it is not designed to eliminate all suits against the industry only those that are most abusive. Please 

identify in the bill what types of abusive suits would be eliminated and 

which legitimate suits would be preserved. In responding to this question, 

please use natural language and do not merely recite the legislative language.

H.R. 1036 (as of the time of my testimony) would curtail fundamentally abusive 

lawsuits such as: suits seeking to blame gun manufacturers for criminals’ misuse 

of their products; suits seeking to blame gun dealers for crimes even though they 

have neither broken the law nor engaged in negligent entrustment; and suits which 

attempt an end run around Congressional will by inviting judges or juries to ban 

gun designs valued by many legitimate gun buyers and that legislatures have not 

seen fit to ban. 

H.R. 1036 would not prevent plaintiffs from suing gunmakers and dealers on a 

wide variety of conventional and familiar grounds of liability law. For example, 

manufacturers could still be sued on grounds that a gun was defective in its manufacture (i.e., not delivered in intended form), or did not live up to a warranty or contractual term of sale, and even on defective-design claims by third parties where a 

gun has caused injury although not used in a criminal or criminally negligent way 

(examples: guns alleged to ‘‘fire when dropped’’ or to fire very inaccurately). Dealers 

could be sued not only in cases where a violation of federal or state law has led 

directly to injury, but also on claims that they have negligently entrusted a firearm 

to an inappropriate buyer. Both manufacturers and dealers would remain open to 

suits seeking injunctive (noncash) relief.

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RESPONSES TO POST-HEARING QUESTIONS FROM DAVID LEMONGELLO

Dear Chairman Cannon, Ranking Member Conyers, and fellow Members of the 

Judiciary Committee: 

I am writing to respond to the questions you asked of me in your April 10 letter.

1. There was testimony at the hearing that suggested that your lawsuit 

would not be adversely affected by H.R. 1036. Under which exemption in 

H.R. 1036 would your case be allowed to proceed?

As you can imagine, if H.R. 1036 becomes law, a court will have to determine 

whether my case would be allowed to proceed. Under the analysis of the bill that 

I have seen, it seems likely that my case would not be allowed to proceed if H.R. 

1036 becomes law, and that no exemption would save it. If Congress is sincerely interested in preserving my right to seek justice in the courts, I would hope that they 

do so clearly.

2. Will manufacturers, sellers or dealers who engage in grossly irresponsible conduct, if that conduct is not also illegal under some state or federal 

statute, be liable for damages under H.R. 1036?

No. In many cases, including my own, grossly irresponsible gun dealers and manufacturers will not be liable for the damages caused by their irresponsible conduct 

under H.R. 1036. In my case, it was clearly irresponsible—negligent—for the gun 

dealer to sell 12 guns to a straw purchasing team. It was also irresponsible—negligent—for the manufacturer to supply its guns to the dealer without requiring that 

it use any reasonable sale practices. The manufacturer did not even require or recommend that the dealer use the sales guidelines that the manufacturer’s own trade 

association has put out. The judge in my case has already ruled that under West 

Virginia law the dealer and the manufacturer may be liable in negligence and public 

nuisance for my injuries. But under H.R. 1036, those rules of negligence and public 

nuisance would no longer apply to gun dealers, manufacturers and trade associations.

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RESPONSES TO POST-HEARING QUESTIONS FROM LAWRENCE G. KEANE

1. Should a federally licensed firearms dealer who has been trained or educated through the ‘‘Don’t Lie for the Other Guy’’ program on how to detect 

and deter illegal straw purchasers of firearms be liable for damages if they 

act contrary to that training? Would H.R. 1036 permit a lawsuit against a 

dealer who acts contrary to the education provided under this program if 

the weapon is ultimately used by a third party to injure someone?

The joint cooperative ATF/NSSF educational program, ‘‘Don’t Lie for the Other 

Guy,’’ is designed and intended to assist ATF in its efforts to help educate federally 

licensed firearms dealers on how to detect and deter the illegal straw purchase of 

a firearm. To date NSSF, in partnership with ATF, has distributed approximately 

23,000 ‘‘Don’t Lie for the Other Guy’’ dealer kits throughout the United States. ATF 

has advised NSSF that inspectors carry ‘‘Don’t Lie for the Other Guy’’ dealer kits 

in their vehicles and distribute them when they visit dealers. NSSF is proud of the 

fact that the ‘‘Don’t Lie for the Other Guy’’ program is a partner in the U.S. Department of Justice’s ‘‘Project Safe Neighborhoods.’’ NSSF applauds Attorney General 

Ashcroft’s announcement made during the national ‘‘Project Safe Neighborhoods’’

conference that the Justice Department would have a renewed focus on the prosecution of illegal straw purchasers. NSSF in partnership with ATF is working to expand the important ‘‘Don’t Lie for the Other Guy’’ message to reach a wider public 

audience through televised public service announcements. 

Unfortunately, the question as posed is a factually incomplete hypothetical. The 

question appears to focus on the narrow issue of whether a dealer did or did not 

follow all of ATF’s many suggestions and recommendations contained in the ‘‘Don’t 

Lie for the Other Guy’’ program materials. As ATF itself acknowledges on the video 

component of the ‘‘Don’t Lie for the Other Guy’’ dealer kit, it is not always easy for 

a dealer to determine or know whether a transaction is legitimate or whether it is 

an illegal straw purchase. The mere fact that a sale turns out after the fact to have 

been a straw purchase should not give rise to liability against the dealer, nor the 

manufacturer or distributor. What is clear, however, is that H.R. 1036 does not prevent a suit against a dealer who knowingly and willfully sells a firearm to a straw 

purchaser or violates any law in transferring a firearm. See H.R. 1036, Section 

5(A)(i) and (iii).

2. Former police officer, David Lemongello, testified that he was injured by 

a weapon that was purchased in a suspicious sale and later used by another criminal to shoot him. Should a seller be insulated from liability in 

a situation such as this? Will a seller be insulated from liability under H.R. 

1036 if a weapon purchased in a suspicious sale is transferred to another 

person who then inflicts injury upon another?

As ATF itself acknowledges on the video component of the ‘‘Don’t Lie for the 

Other Guy’’ dealer kit, it is not always easy for a dealer to determine or know 

whether a transaction is a legitimate or whether it is an illegal straw purchase. The 

mere fact that a sale turns out after the fact to have been a straw purchase should 

not give rise to liability against the dealer, nor the manufacturer or distributor. 

What is clear, however, is that H.R. 1036 does not prevent a suit against a dealer 

who knowingly and willfully sells a firearm to a straw purchaser or violates any law 

in transferring a firearm. See H.R. 1036, Section 5(A)(i) and (iii). The facts and circumstances surrounding a given transaction establish whether the dealer knowing 

and willingly transferred a firearm to an illegal straw purchaser or in violation of 

the law and thus whether a suit against that dealer is proper under H.R. 1036. 

The facts and circumstances surrounding the transfer of the firearm involved in 

former police officer Lemongello’s case are more involved than the Subcommittee is 

aware. Upon information and belief, the straw purchaser used by the multiply convicted felon to illegally purchase the firearm in question was a known customer of 

the store. Before making the sale, a store employee did inquire of the straw purchaser as to reason for the purchase. Later that day or early the next morning the 

store’s management voluntarily alerted ATF of the transaction. The dealer subsequently voluntarily cooperated with ATF in an undercover sting operation that resulted in the successful apprehension of the convicted felon who was illegally trafficking firearms into New Jersey. The dealer permitted ATF to install surveillance 

equipment in the store and permitted an undercover ATF agent to pose as a store 

employee. The ‘‘straw purchaser’’ also cooperated with law enforcement in exchange 

for leniency in the subsequent criminal prosecution against her. The convicted felon 

pled guilty in federal court and was sentenced to 15 years incarceration. As part 

of his plea agreement the defendant signed a cooperation agreement with the 

United States requiring him to disclose any information he had concerning the inVerDate 0ct 09 2002 14:01 Jun 12, 2003 Jkt 000000 PO 00000 Frm 00167 Fmt 6601 Sfmt 6621 G:\WORK\COMM\040203\86266.000 HJUD1 PsN: 86266
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volvement of others. As former police officer Lemongello testified, the dealer was not 

prosecuted. It is also worth noting that former police officer Lemongello has also 

sued Sturm, Ruger and Co., Inc., even though the firearm transferred by the dealer 

was a used firearm.

3. You testified that a conservative estimate for the total industry-wide 

cost of defending lawsuits is approximately $100 million. On what do you 

base that figure? You further indicate that the cost of litigation is absorbed 

almost exclusively by the gun industry because insurance carriers have denied coverage. On what do you base that assertion? Please provide any documentary support for both of these claims.

See written and oral testimony. The legal bills of individual companies are privileged and confidential business information not shared with competitors. Glock 

Inc.’s former general counsel Paul Jannuzzo publicly estimated that the litigation 

expense would cost his company alone $15 million dollars a year. I also base my 

estimate on conversations with insurance professionals, including brokers, underwriters and claims managers, who have been involved in dealing with insurance for 

the firearms industry for many years. I also base my estimate on my own experience 

as a practicing attorney having represented firearms manufacturers in litigation 

matters.

4. You also testified that the premiums within the firearms industry have 

skyrocketed. Please provide any data you have reflecting a surge in insurance premiums for the gun industry. In addition, please provide any information that establishes a nexus between the rate of premiums and the risk 

or cost of litigation.

See written and oral testimony. Industry members have also informed me that in 

addition to dramatic and skyrocketing premium increases they have experienced 

substantial increases in their deductibles and in self-insured retentions (SIR). Moreover, the scope of coverage has been restricted, in addition to blanket exclusions for 

the types of suits that would be stopped by this legislation. Many insurance carriers 

have abandoned the market and no longer will write liability policies for firearms 

companies, such as CNA Re and Chubb among others. Other carriers will renew existing firearms company clients but will not write policy for new clients. I also base 

my opinion on court decisions in insurance coverage cases denying coverage; and 

conversations with insurance coverage counsel, insurance professionals, including 

brokers, underwriters and claims managers, who have been involved in writing insurance for and managing claims involving firearms industry companies.

5. You testified that over thirty states have enacted similar legislation to 

prevent frivolous suits against the gun industry. Please identify each state 

statute on which you rely and explain how it is similar to H.R. 1036. Don’t 

these statutes mostly preclude suit by municipalities and other governmental subdivisions, absent consent or approval from the State, without 

interfering with traditional tort liability actions brought by individuals 

and organizations?

See attached chart. The statutes speak for themselves. What they all have in common is that they are designed to stop junk lawsuits that improperly attempt to 

blame manufacturers and product sellers for the criminal misuse of their legally 

sold, non-defective products. Many but not all of these suits have been filed by municipalities. An example of such a reckless lawsuits not brought by a municipal 

plaintiff is the NAACP lawsuit currently on trial in the United States District Court 

for the Eastern District of New York before Senior District Court Judge Jack B. 

Weinstein (NAACP v. Acusport Corp., et al. 99 Civ. 3999, Civ. 7037).

165

Neither H.R. 1036 nor any of these many state statutes interfere with traditional 

tort liability actions brought by individuals and organizations. All that H.R. 1036 

and these state statutes do is stop junk lawsuits that are not based on traditional 

and well-recognized tort law claims, regardless of whether the plaintiff is a state, 

a municipality, an interest group or a citizen. As the judge said in dismissing the 

District of Columbia’s junk suit seeking to blame members of the firearms industry 

for the acts of criminals, ‘‘Based upon . . . relevant case law and bedrock legal principles, this Court concludes that the arguments of the defendants are compelling as 

to the entry of judgment in their favor. The plaintiffs’ myriad claims herein are burdened with many layers of legal deficiencies.’’ District of Columbia v. Beretta U.S.A. 

Corp., et al., Civil Action 0428–00, slip op. at 4 (D.C. Super. Ct. 2002).

6. You identified several programs such as ‘‘Don’t Lie for the Other Guy,’’

and the ATF Partnership for Progress Seminars as indicative of the voluntary efforts by the industry to prevent or curtail illegal gun sales. How 


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does your organization monitor and measure the success of these programs?

The joint cooperative ATF/NSSF educational program, ‘‘Don’t Lie for the Other 

Guy,’’ is designed and intended to assist ATF in its efforts to help educate federally 

licensed firearms dealers on how to detect and deter the illegal straw purchase of 

a firearm. To date NSSF, in partnership with ATF, has distributed approximately 

23,000 ‘‘Don’t Lie for the Other Guy’’ dealer kits throughout the United States. ATF 

has advised NSSF that inspectors carry ‘‘Don’t Lie for the Other Guy’’ dealer kits 

in their vehicles and distribute them when they visit dealers. NSSF is proud of the 

fact that the ‘‘Don’t Lie for the Other Guy’’ program is a partner in the U.S. Department of Justice’s ‘‘Project Safe Neighborhoods.’’ NSSF applauds Attorney General 

Ashcroft’s announcement made during the national ‘‘Project Safe Neighborhoods’’

conference that the Justice Department would have a renewed focus on the prosecution of illegal straw purchasers. NSSF in partnership with ATF is working to expand the important ‘‘Don’t Lie for the Other Guy’’ message to reach a wider public 

audience through televised public service announcements. 

‘‘Partnership for Progress’’ is a joint NSSF/ATF seminar program put on throughout the United States by NSSF and ATF staff to provide continuing education and 

training for dealers on a variety of topics, such as preventing the theft of firearms, 

inventory and detecting and deterring the illegal straw purchase of firearms. 

ATF also attends NSSF’s annual trade show, the SHOT Show, and is provided 

booth space to meet and speak with dealers attending the show. Since the earliest 

days of the SHOT Show ATF has put on seminars for dealers on a wide variety of 

topics. In addition to the ATF seminars, NSSF conducts its own seminars for dealers on various topics. NSSF also conducts ‘‘SHOT Show University’’ and ‘‘Retailer 

University′′

Like all trade associations, membership in the NSSF is voluntary. Participation 

in any of its educational programs is also voluntary. ATF has repeatedly thanked 

NSSF and industry for its voluntary cooperation in these various programs. We look 

forward to working in partnership with ATF to expand the reach of our ‘‘Don’t Lie 

for the Other Guy’’ program through televised public service announcements. ATF 

has informed NSSF that it believes these programs are valuable and worthwhile. 

Therefore, NSSF will continue them as long as ATF believes they are worthwhile.

7. Please provide examples of Supreme Court dicta in which an individual 

right to bear arms is recognized.

In the Dred Scott decision the Supreme Court conceded that if freed AfricanAmericans were recognized as citizens they would be entitled to ‘‘keep and bear 

arms’’ and that Congress could ‘‘not deny the people the right to keep and bear 

arms . . .’’ Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed. 691 (1856). 

The Supreme Court also recognized that the Second Amendment provides an individual right in United States v. Cruikshank, 92 U.S. 542, 551, 23 L. Ed. 588 (1875). 

See also Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615 (1886); 

Miller v. Texas, 153 U.S. 535, 538, 14 S. Ct. 874, 38 L. Ed. 812 (1984). 

In a 1990 Fourth Amendment case the Supreme Court had occasion to discuss the 

Second Amendment in the context of other fundamental rights. The Court said:

‘‘The People’’ seems to have been a term of art employed in selected parts 

of the Constitution . . . The Second Amendment protects ‘‘the right of the 

people to keep and bear Arms,’’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘‘the 

people.’’ See also U.S. Const., Amdt. 1 (‘‘Congress shall make no law . . . 

abridging . . . the right of the people peaceably to assemble’’); Art. I, § 2, 

cl. 1 (‘‘The House of Representatives shall be composed of Members chosen 

every second year by the People of the Several States’’) (emphasis added). 

While this textual exegesis is by no means conclusive, it suggests that ‘‘the 

people’’ protected by the Fourth Amendment, and by the First and Second 

Amendments, and to whom rights and powers are reserved in the Ninth 

and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection 

with this country to be considered part of the community.’’

United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 1060–61, 

108 L. Ed. 2d 222, 232–33 (1990). See also Planned Parenthood of Southeastern 

Pennsylvania v. Casey, 505 U.S. 833 841, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) 

(The Constitution guarantees ‘‘freedom of speech, press, and religion; the right to 

keep and bear arms...’’). 

Justice Clarence Thomas wrote in a concurring opinion, ‘‘Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates 

167

that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right,’’ Printz v. United States, 521 U.S. 898, 938, 117 S. Ct. 2365, 138 L. Ed. 

2d 914 (1997) (Thomas, J. concurring). The right to bear arms was discussed as a 

personal right by Justice John Paul Stevens in a dissenting opinion in Spencer v. 

Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (Stevens, J. dissenting) 

(Continuing injury caused by a criminal conviction ‘‘may result in tangible harm 

such as . . . loss of the right to vote or to bear arms...’’).

8. [Repeat of Question 7.]

Æ