Alphecca

Weekly Check on the Bias

Welcome to the August 2nd edition of my Weekly Check on the Bias by media concerning firearm ownership and the Second Amendment. This is also the first week of a "new look" here at Alphecca, although I'll probably be making further alterations as the week progresses.

There's a lot to get to but perhaps nothing was more "news making" than the passage of Senate Bill S397 last week which provided limited immunity from frivolous lawsuits to the firearms industry and their dealers. I highlight "limited" because you'd never know that certain suits are still allowed if you were only following the story from reports and editorials in the Mainstream Media. I've been covering them all week long and won't repeat myself here (well, not too much) but here's an example from the editorial page of today's NY Newsday:

Here's what you need to know about the immunity from lawsuits that the Senate voted last week to give gun dealers and gun makers: Victims of the "DC Sniper," who recently settled a suit against the gun shop and manufacturer responsible for the rifle used in the deadly attacks, would have been barred from the courthouse if the Senate bill had become law before they settled.

Sniper John Allen Muhammad's victims would have been booted out of court without collecting one dime from the gun dealership where 200 firearms, including the one used by Muhammad and his partner, disappeared without required records or buyer background checks. Last week, in a spasm of concern for the gun lobby, the Senate decided that such dealers, and the industry that continues to supply them, deserve protection from the victims of their legal, but deadly products.

As John McLaughlin might yell, "Wrong!!!". I sometimes feel like Bill Murray must have in the movie Groundhog Day because it seems I have to keep repeating the relevant section of the bill that would have allowed the victims of the mutant DC Snipers to proceed with their suit against the Bull's Eye gun shop. When reading the following, keep in mind that the bill is designed to prohibit what it calls "qualified civil liability action" and I have highlighted the phrase "but shall not include--" and you can then read what is still permitted. From the text of S.397 as passed:

(A) IN GENERAL- The term `qualified civil liability action' means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief' resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include--

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including--

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) and action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code.

The rifle used by the DC Snipers "came from" the Bull's Eye Gun Store although how, we're not sure. The Bull's Eye had been cited more than once by the BATF for poor record keeping and while the number of guns that have gone missing from there is in dispute, it is not (in my opinion) in dispute that they were negligent in securing their inventory. The lawsuits would have been ruled valid under this bill. So Newsday and all the others are simply lying to their readers when they continually bring up this canard.

The important point of this bill is that the baseless class action lawsuits brought by cities (at the urging of greedy trial lawyers) will come to a halt. The attempt to extort money from gun makers (who have some money, not a lot) because of the actions of criminals (who have no money) using their products is a specious argument at best. Cities claim they are trying to recover the costs of gun crime. Would they sue automakers to recover the costs of traffic accident investigations? They haven't --yet-- but give it time.

Last week I wrote:

However, a word of caution: Once this bill becomes law -- that doesn't end all lawsuits against gun makers and dealers. The trial lawyers will comb through the exemptions that are still actionable and simply change their tactics.

I fear that is still the case.

Two amendments were included in the final wording of the bill. One requires that a safety trigger lock (or gun safe) be included with the sale of any firearm. Many manufacturers already do. The most disturbing part of this amendment is this:

(3) LIABILITY FOR USE-

(A) IN GENERAL- Notwithstanding any other provision of law, a person who has lawful possession and control of a handgun, and who uses a secure gun storage or safety device with the handgun, shall be entitled to immunity from a qualified civil liability action.

(B) PROSPECTIVE ACTIONS- A qualified civil liability action may not be brought in any Federal or State court.

(C) DEFINED TERM- As used in this paragraph, the term 'qualified civil liability action'--

(i) means a civil action brought by any person against a person described in subparagraph (A) for damages resulting from the criminal or unlawful misuse of the handgun by a third party, if--

(I) the handgun was accessed by another person who did not have the permission or authorization of the person having lawful possession and control of the handgun to have access to it; and

(II) at the time access was gained by the person not so authorized, the handgun had been made inoperable by use of a secure gun storage or safety device; and

(ii) shall not include an action brought against the person having lawful possession and control of the handgun for negligent entrustment or negligence per se.

I'm not a lawyer (but I play one on TV) and I'm hoping that this will be struck by the House when they and the Senate get together to reconcile their respective bills. What I think this is saying is that if an individual does not lock-up his guns at home and one is stolen, he will not be protected by S397. The fact is, though, that this amendment does not require that an individual lock-up his guns. Some states, on their own, do (MA for instance). Individuals are not protected NOW from such suits so nothing really changes though I'm sure trial lawyers will persue such matters in the future.

Here's where it gets interesting:

(3) LIABILITY; EVIDENCE-

(A) LIABILITY- Nothing in this section shall be construed to--

(i) create a cause of action against any Federal firearms licensee or any other person for any civil liability; or

(ii) establish any standard of care.

(B) EVIDENCE- Notwithstanding any other provision of law, evidence regarding compliance or noncompliance with the amendments made by this section shall not be admissible as evidence in any proceeding of any court, agency, board, or other entity, except with respect to an action relating to section 922(z) of title 18, United States Code, as added by this subsection.

(C) RULE OF CONSTRUCTION- Nothing in this paragraph shall be construed to bar a governmental action to impose a penalty under section 924(p) of title 18, United States Code, for a failure to comply with section 922(z) of that title.

So gun dealers or individuals might have their guns stolen and even if they didn't have them locked-up, that evidence could not be presented in court or cause an action against them. But the government could impose a penalty in the future. Confused? So am I. I could use the help of some of our legal-eagle bloggers here...

The second attached amendment relates to banning the import of "armor piercing bullets", but the definition of that remains to be "studied". That in itself is reason for alarm as who knows how liberals will define "armor" and many caliber ammos will already pierce body armor, including many hunting cartridges. My thanks to the Orange County NY Shooters for bringing this discussion up.

Yesterday I mentioned an article in the Denver Post about how unhappy some were (including the story writer, apparently) over the decision of Colorado Senator Ken Salazar to support S397:

"I was floored," Tom Mauser, president of Colorado Ceasefire Capital Fund, said of Salazar's vote. "It's especially hurtful to me because I have defended Ken Salazar to people."

Mauser, whose work on gun issues was spurred by his son Daniel's death in the 1999 Columbine High School massacre, said Ceasefire members expect to confront Salazar about the bill when he holds a town meeting in Colorado.

No doubt this is all part of his organization's fund-raising efforts.

No such bias at South Dakota's KELO TV site:

Among those who voted for the measure were members of South Dakota's delegation. The law would shield the manufacturers, dealers, and importers of firearms from lawsuits brought by victims of gun crimes.

Senator Tim Johnson says, "I'm a hunter, I'm a 4th generation South Dakotan and gun ownership is part of our culture in South Dakota. Responsible gun ownership is what we've always done."

Which is why legislation to shield gun makers from lawsuits makes sense to many.

Johnson says, "If someone commits a crime using a gun, then you ought to throw the book at the person who committed the crime, but you should not come back to the manufacturer and say its your fault because someone irresponsibly used your product."

Interestingly, the article points out that while gun prices have been rising, mostly in response to the costs of defending such frivolous lawsuits, the new legislation should bring that to a halt. I wouldn't mind seeing prices drop, myself. That would allow more folks to afford the means to defend themselves.

Shifting gears... In Minnesota, where the "shall issue" concealed-carry permit law was renewed this year, some churches are filing lawsuits that demand that churches be exempt from allowing permitted individuals to bring weapons into their churches, or even to keep the guns stored in their cars. From the Deluth News-Tribune:

Two Twin Cities churches filed a new lawsuit in Hennepin County District Court, saying the law continues to violate religious freedom.

The law allows people at least 21 years old with a clean record, no mental illness and proper training to get a permit to carry a gun. Prior to 2003, local law enforcement authorities had more say over who received a permit.

Churches fought the law, arguing they shouldn't have to let guns on their property. One challenge that dealt with the 2003 process for passing the law led to its invalidation. But the 2005 Legislature made a slight change before reinstituting the law in May.

Attorneys David Lillehaug and Marshall Tanick, who respectively represent the Edina Community Lutheran Church and the Unity Church-Unitarian in St. Paul, are seeking an injunction that would free religious institutions from having to abide by it.

What's interesting is that these churches CAN prohibit firearms by simply POSTING A SIGN at their entrance stating that guns are not allowed. Previously, they would have had to post signs AND explicitely tell parishioners that they couldn't bring their concealed firearms into church. The 2005 bill that was passed says that a sign is sufficient. So what, exactly, is their problem? This sounds like just more grandstanding to me. The story continues with a quote from a loyal Alphecca supporter:

Joe Olson, president of the Gun Owners Civil Rights Alliance and a proponent of the law, said he expects the law to withstand further challenge.

"They are not suing over religious freedom. They are suing because they don't like guns," Olson said.

Are churches saying that they should be exempt from state law? If that is their definition of the seperation of church and state then don't let me be seeing them trying to dictate law to the states. Pay attention, right-wing wackos. There, that should generate some comments...

You know... In some towns in New Jersey, where local police chiefs have total say over who gets to buy or own or carry a firearm, it's almost impossible to receive such blessings. You would think though that much as we want to arm airline pilots to prevent acts of terrorism, we would also want cruise ship captains to be armed as well. NOT IN NJ! From WNBC TV:

A state appeals panel has overturned a judge's decision that allowed a sea captain to carry a concealed gun while guiding cruise ships along New Jersey's coast.

In a ruling made public Friday, the Appellate Division of Superior Court found no "justifiable need" for captain Salvatore Atanasio Jr. to arm himself.

In what was termed a maritime equivalent of airline pilots arming themselves to protect their cockpits, a state Superior Court judge in Warren County last summer granted Atanasio a restricted permit to carry a handgun while aboard his ship.

Judge John Pursel cited Atanasio's extensive background as a ship's master and noted that large sea vessels could be vulnerable to attacks by terrorist.

Pursel, in his ruling, said it could take the U.S. Coast Guard up to an hour to reach a ship if there is an emergency.

But the appeals panel disagreed, ruling that apprehension by people who work around potential terrorist targets is not enough to allow those people to arm themselves.

"If such were the test, then conceivably every airline flight attendant, every bus driver, every truck driver transporting hazardous materials, every person employed by or with access to potable water reservoirs or fuel storage facilities, would be legally entitled to carry concealed firearms," the appeals court wrote in its ruling.

So the sick, demented judges of the appeals panel think that fear isn't a reason to be allowed to carry a firearm by a law-abiding person. Fair enough. Then cops should not be allowed to carry guns because of their fear of the criminals they are trying to apprehend. Park rangers shouldn't carry guns simply because they fear wild animals. There IS no terrorism in this world. The four planes hi-jacked by mutant Islamics was a figment of our imagination and fear of future events is not enough to allow for prudent precautions by captains of airplanes or cruise ships carrying hundreds of potential victims.

I am ThisClose to going into rant mode so I'll stop. Serenity now... Serenity now...

Time for some "eye candy" here. Each week I've been posting some of the beautiful photos taken by Robert Langham for the Texas State Rifle Association 2006 calendar and here are some more. His comments preceed each photo.

I have a large bookshelf inside my front door. There are usually several rifles leaning against it. (Full disclosure: I'm not married.) For this photo I selected three W.W.II rifles, pulled a table over and used it to lean and clamp the rifles in front of a section of the bookcase and started editing curios and book titles. Since this is a W.W.II photo and a Texas photo, I selected books reflecting that. For curios I went from Crockett to Omaha beach sand, kachinas to Tarzan. I may be pushing the PC on using a Mexican Day-of-the-Dead skeleton and Unintended Consequences. We'll see.

I borrowed a SA Garand, used one of my own m1 Carbines, and an 03A3 from the CMP. Window light from the left, custom light balance on the Coolpix 8800, and a big silver card to the right. I filled below with a white card. This is shot with the Nikon zoom as wide as it will go off a tripod. Note the bottom shelf bulging. Exposure over two seconds. It ought to take a month just to figure out the titles.

Bill's Ithaca 1911 is in there along with a 1938 Luger.

One block over lives the wife half of some divorced friends of mine. Three kids by two fathers. The youngest, Andrew, is a knotheaded ten year old boy.

I'm working him on a CMP Mossburg 44US. Peepsight and front post, six o'clock holds. When he gets a little bored he gets to shoot balloons at 100...if he can put three out of five in the ten ring. Half the time he wanders off to talk to other shooters.

I lay out the AR and an M1A for a service rifle shot. Andrew holds the reflector out in the sun while I am under the firing point cover. Every time I photograph, exactly AS I release the shutter, he takes the reflector down and says, "Done yet?" This photo took 30 minutes, about 25 more than it would have taken without him helping.

Coolpix, handheld, custom light balance off a white card. That's Betsy, my match AR that I am going to live or die with at Camp Perry in a week.

Tomorrow is the final day before I leave for Camp Perry and the National Matches. Here's the one non-gun photo: my reloading bench. Harrell press, Lyman scale, a few tools.

Coolpix handheld with the Vibration Reduction turned on. One white card to the left. Telephoto. I did some arranging but mostly just picked an angle and built around the theme that was already there.

I use a Harrell powder thrower and weigh every charge for my 223 match ammo. That's excessive but yields good results. Besides that, I seem to have plenty of time.

My thanks to all of you for stopping by. I'll be doing this live on Cam Edwards' this afternoon.

Quick note: There will be NO Weekly Check next week as the company I work for has it's quarterly manager's meeting... Back in two weeks.

Posted by Jeff Soyer at August 2, 2005 10:29 AM