A busy day for Sen. Waldstreicher

With less than two weeks left in the Maryland General Assembly session, Sen. Jeff Waldstreicher (D-Montgomery) on Wednesday found himself defending two of his high-profile bills before the House Judiciary Committee, where he once served.

Both measures deal broadly with the question of legal liability and a plaintiff’s ability to collect damages.

The more prominent of the two bills, Senate Bill 488, would give the state attorney general the authority to sue firearms manufacturers and gun dealers. Gun manufacturers believe they are exempt by federal law for liability in civil damage cases.

Although Waldstreicher’s bill didn’t make it out of his committee last year, it moved to the House of Delegates earlier this month after the Senate approved the measure 33-12.

“I think everyone realizes that no industry should have immunity. The immunity that the gun industry has, has provided an incentive for bad acts,” Waldstreicher said in an interview a few hours before Wednesday’s hearing.

During the hearing, the senator provided an example of what companies in other industries have done to improve their products.

“When Kia and Hyundai found out that their cars can easily be broken into, they changed the design to prevent that from happening,” he said. “Glock has full knowledge that their weapons are illegally being modified into automatic weapons and causing havoc on the streets, including in Baltimore, including in my district in Wheaton, but they have yet to change the design of their firearm so that it can’t be modified. This bill will provide the incentives that every industry has to act responsibly.”

During the hearing, some Republican delegates questioned the legality of the measure and whether it’s constitutional.

“Is driving a Pinto a constitutionally protected right?” asked Del. Lauren Arikan (R-Harford).

“There’s no question that owning a firearm is a constitutional right, but that is not relevant to our discussion,” Waldstreicher said. “Constitutional rights are circumscribed all the time, based on reasonableness. If there is a protest held in the House chamber, that would be unreasonable and we’d disallow it. The fact that a Second Amendment right is implicated in this bill is not relevant to the discussion here today.”

Del. Robin L. Grammer Jr. (R-Baltimore County) said the bill is written so broadly it “can bludgeon the hell out of any legitimate actor” when it’s not their fault for manufacturing a certain product.

Grammer’s main concern is this part of the legislation: “a party seeking relief under this section is not required to prove that a firearm industry member acted with the intent to violate this subtitle.” Within the legislation, the Office of the Attorney General could file a civil suit against a member of the firearm industry for public nuisance, if in violation of the proposed law. The office may seek “injunctive relief, restitution, compensatory and punitive damages, reasonable attorney’s fees and costs and any other appropriate relief.”

“If we were to do this with any industry, what kind of precedent are we setting, even though it’s not their intention…that we’re going to have this giant bat that you could probably chase them out of the state with,” Grammer said.

“Respectfully, Delegate, I don’t believe your legal analysis here is correct,” Waldstreicher said.

He mentioned a part of the legislation that states a “firearm industry member may not knowingly create, maintain, or contribute to harm to the public through the sale, manufacture, distribution, importation, or marketing of a firearm related product by engaging” in conduct that is unlawful or “unreasonable under the totality of the circumstances.”

“Under criminal law, you have to have an intent to commit the act. But you don’t have to have an intent to violate the law,” he said.

‘Unjustified and blatant’

The House version of Waldstreicher’s legislation, sponsored by Del. N. Scott Phillips (D-Baltimore County), remains in limbo with the Judiciary Committee.

According to both versions of the bill, a company in the firearm industry would be required to implement “reasonable controls on the sale, manufacture, distribution, importation, marketing, possession and use of” firearm related products.

Reasonable controls, defined in the bill, are policies such as preventing the sale and distribution of a product to a straw purchaser, a firearm trafficker, a person whom the member of a firearm industry has reasonable cause “to believe intends to use the firearm-related product to commit a crime or to cause harm” to someone.

Under current law, a firearms dealer or other person is prohibited from selling, renting, or transferring a regulated firearm if it’s known or there is “reasonable cause to believe” that a person is younger than 21 years old, convicted of a conspiracy to commit a felony, a participant in a straw purchase, among other factors.

A dealer issued a state firearm license must also possess a federal license issued by the Bureau of Alcohol, Tobacco and Firearms (ATF).

In a Feb.13 letter about the bill sent to Sen. William C. Smith Jr. (D-Montgomery), chair of the Judicial Proceedings Committee, Attorney General Anthony Brown (D) wrote that California, Colorado, Delaware, Hawaii, Illinois, New Jersey, New York and Washington state have enacted similar legislation in the last two years.

“I expect that…firearms industry members will be able to devise and implement reasonable controls that comply with the statute,” Brown wrote. “And if they do not, I will use the statute’s enforcement mechanisms to compel them to change their behavior.”

John Josselyn, director of the gun rights group 2A Maryland, is one of several people who have opposed the legislation.

“This Bill has nothing to do with public safety or crime prevention, or a reduction in the illegal possession and use of firearms in criminal activity,” he wrote in a letter to the Senate Judicial Proceedings Committee earlier this year. “It is an unjustified and blatant economic attack on the legal firearms industry as a whole and by extension those law-abiding citizens who enjoy the legitimate use of firearms.”

The Senate added an amendment to the bill that would require the attorney general’s office, in consultation with the Department of State Police, to study and make recommendations regarding the legality and feasibility of a statutory requirement for licensed firearm dealers within the state to provide records of firearm trace requests received from the ATF.

Chamber of Commerce hits noneconomic damages bill

Immediately after the hearing on the gun liability legislation, Waldstreicher presented his bill that would raise the liability cap on noneconomic damages a plaintiff can collect in civil lawsuits.

The current limit on those caps, which cover hard-to-calculate losses such as pain and suffering, is $935,000 — a figure that goes up by $15,000 every year.

As originally written, Waldstreicher’s bill would have removed the caps for noneconomic damages altogether. The Senate Judicial Proceedings Committee, where Waldstreicher is vice chair, amended the bill, so that the cap would rise to $1.75 million, and the annual “escalator” would increase to $20,000.

Economic damages collected from a lawsuit — for the loss of income or for medical payments caused by an accident — are not subject to a cap in Maryland.

“You have two sides of the ledger,” Waldstreicher told the Judiciary Committee Wednesday. “Economic losses. Medical damages. Loss of wages possibly. Then you have the other side of the ledger. Pain and suffering, which can be more significant. Ask yourself why it’s that side of the ledger where the current cap is so restrictive.”

Waldstreicher’s bill came to the Judiciary Committee after passing in the Senate 27-18 last week. Judiciary has yet to vote on the House version of the legislation, sponsored by Del. Natalie Ziegler (D-Howard and Montgomery). Her bill contains language doing away with the liability cap altogether.

The “consensus” of the Senate committee, Waldstreicher said, was that having no cap whatsoever “went too far.”

At Wednesday’s hearing, Republican and Democratic lawmakers peppered Waldstreicher with questions about whether his bill would increase liability insurance rates. He said he’s seen “no evidence” to suggest it would. Several states with no liability caps, including red states, have lower insurance rates than Maryland, he said (though some of those states have different structures for liability suits than Maryland).

Del. Aaron M. Kaufman (D-Montgomery), who represents the same district as Waldstreicher, observed that “there’s been a lot of metaphorical bed-wetting on this matter.”

“Liberal bastions like Oklahoma, Alabama and Texas have no caps,” he said sarcastically.

Because only bill sponsors were allowed to testify in the Judiciary Committee Wednesday, opponents were reduced to sitting in the hearing room watching the proceedings. But earlier in the day, the Maryland Chamber of Commerce and the American Property Casualty Insurance Association issued a statement urging lawmakers to oppose the bill, arguing that the current $935,000 cap, which automatically goes up $15,000 every year, is already one of the highest in the nation and “has provided a reasonable path to compensation for 35 years while limiting unpredictable awards that could devastate local employers.”

Mary D. Kane, president & CEO of the Maryland Chamber of Commerce, warned that the proposed changes would raise costs for Maryland residents and threaten jobs.

“Nearly doubling the cap on noneconomic damages would inevitably lead to higher insurance rates and increased costs that would be passed onto Maryland residents and businesses,” she said. “This shortsighted legislation puts our state at a competitive disadvantage and hinders our ability to attract and retain job creators.”

Nancy Egan, vice president of state government relations and counsel for the American Property Casualty Insurance Association, simply called Waldstreicher’s bill “harmful.”