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					                                                BRADY BACKGROUNDER
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                                 EXTREME GUN LOBBY WILL TRY AGAIN
         Last March, President Bush and the gun lobby’s extremist allies in Congress tried to secure passage of the misleadingly
named "Protection of Lawful Commerce in Arms Act." that would have granted broad and unprecedented immunity from civil lawsuits to
gun manufacturers and gun dealers. Had members of the U.S. Senate not added amendments to the legislation that would have
extended the federal Assault Weapons ban, closed the gun show background check loophole and required child safety locks to be
included in gun sales, the immunity legislation would have passed.

          The legislation is back, with a House bill (HR 800) introduced on February 16, 2005. The National Rifle Association is
preparing for expansive efforts to pass the legislation this year. It’s still a horrible public policy idea – editorial writers have written that
proponents are “attempting to create a special class of citizens, exempt from the law” (Cleveland Plain Dealer) and that the legislation
is “private charity masquerading as public protection” (Indianapolis Star). The legislation must be defeated in order to ensure that
people who become gun violence victims because of reckless behavior by gun sellers can still seek justice in the courts.

         The gun lobby claimed that the only suits barred by the immunity legislation were “frivolous” cases that would never prevail.
They said the sky was falling. The NRA claimed that if immunity legislation was not passed, these “frivolous” lawsuits would drive the
gun industry into bankruptcy, taking guns out of the hands of our armed forces. But this awful legislation was defeated, and the victims’
cases were not found to be frivolous. In fact, gun dealers and manufacturers who faced documented cases of negligence realized how
compelling those cases were and settled several for substantial damages. And no one went bankrupt.

         Only a whole lot of good happened, as demonstrated by what happened in three cases that would have been thrown out of
court had immunity passed.

          Bushmaster, Bull’s Eye Shooter Supply Pay $2.5 Million To D.C. Sniper Victims – In September 2004, the families of
victims of the D.C. sniper shootings won a $2.5 million settlement from Bull’s Eye Shooter Supply, the dealer who “lost” the snipers’
assault rifle, along with at least 238 other guns, and Bushmaster, the assault weapon maker who negligently supplied Bull’s Eye
despite its disgraceful record of missing guns and regulatory violations. Further, as part of the settlement Bushmaster agreed to inform
its dealers of safer sales practices that should prevent other criminals from obtaining guns – something Bushmaster had never done
before. Sharing in the settlement were the families of Conrad Johnson, James "Sonny" Buchanan, Hong Im Ballenger, Premkumar
Walekar, Sarah Ramos and Linda Franklin, as well as two victims who survived the shootings, Rupinder "Benny" Oberoi and 13-year-
old Iran Brown.

           Gun Dealer Changes Practices, Compensates Wounded Police Officers – In June 2004, Ken McGuire and Dave
Lemongello, former New Jersey police officers shot in the line of duty with a trafficked gun negligently sold by a West Virginia dealer,
,won a $1 million settlement. The dealer had sold the gun, along with 11 other handguns, in a cash sale to a straw buyer for a gun
trafficker. After the lawsuit, the dealer, as well as two other area pawnshops, agreed to implement safer practices to prevent sales to
traffickers, including a new policy of ending large volume sales of handguns. These practices go beyond the law and are not imposed
by any manufacturers or distributors.

         Mother Of Slain Seven Year Old Ends Long Fight to Hold Reckless Dealer Accountable – In August 2004, Tennille
Jefferson, whose seven-year-old son, Nafis, was unintentionally killed by another child with a trafficked gun, won a settlement from gun
dealer Sauers Trading. According to the Philadelphia Inquirer, the settlement amounted to $850,000. The handgun was one of many
the dealer had sold to the trafficker, despite clear signs that the guns were headed straight to the underground market.

         Now the gun lobby is back, trying to radically change the rules, to make irresponsible gun dealers and the makers of defective
guns the only businesses in America exempt from common law principles of negligence, nuisance and product liability. If the
extremists had won, none of these cases would have seen the light of day. The families of the sniper victims would have recovered
nothing, while Bull’s Eye would have escaped justice. It would have been business as usual in those West Virginia shops where guns
were sold without limit to gun trafficking teams, and the two injured police officers would not have received justice. Tennille Jefferson
would have been tossed out of court and Sauers Trading would have escaped accountability for supplying a gun trafficker.

         Congress must reject this special interest scheme again. The gun industry should be subject to the same legal rules as all
other American businesses. And the courthouse doors must remain open to legitimate victims harmed by the dangerous and
irresponsible actions of firearm manufacturers and sellers.

         On the following pages, journalists and researchers will find:

    •    A point-by-point “truth squad” briefing paper about the legislation;

    •    A discussion of the historical importance of litigation in consumer protection, and how legitimate cases against gun sellers
         have grown from that history;

    •    Summaries of the opinions of law professors, leading attorneys and Congressional experts about the legislation; and

    •    An index of newspaper editorials opposing the legislation.

          No industry in America has ever come as close as the gun industry to being given such total protection from the courts. No
industry in America ever should be given such protection. This legislation is not tort reform. It’s a complete free pass for irresponsible

                                                THE TRUTH ABOUT
                                        GUN INDUSTRY IMMUNITY LEGISLATION
The gun industry and the gun lobby are pushing legislation that would strip gun violence victims of their legal rights. As part of their
efforts, they have repeatedly misrepresented the sweeping effect of the legislation. Here’s the truth.

            What the Gun Lobby Says                                            The Truth

Lawsuits against the gun industry seek to wipe           Not true. On the contrary, it is this legislation that
out centuries-old tort law principles and the            radically rewrites longstanding legal principles. The
legislation would simply reaffirm those                  immunity legislation exempts the gun industry from
principles.                                              the oldest principle of our liability law: those who
                                                         engage in negligent conduct should be accountable
                                                         to the foreseeable victims of that conduct. Instead
                                                         the legislation allows only narrow categories of
                                                         negligence actions that are not even recognized in
                                                         many states. It thereby protects negligent gun
                                                         sellers, which will only encourage careless conduct
                                                         and subject innocent people to a greater risk of

This legislation only prevents claims against            Not true. The bill also immunizes gun dealers,
gun manufacturers.                                       distributors and trade associations. If this legislation
                                                         becomes law, dealers who have negligently sold
                                                         guns to traffickers would be immune from damages
                                                         that result, even if a dealer sells 10, 50, or 100 guns
                                                         to a purchaser who could only want that volume in
                                                         order to illegally resell them.

This legislation will not outlaw lawsuits brought        Not true. The bill immunizes the gun industry from
by injured private citizens.                             most lawsuits brought by anyone – including private
                                                         citizens. Individuals, as well as government entities,
                                                         would lose their legal rights.

The legislation would simply prevent the gun             Not true. The cases brought against gun dealers
industry from being held liable because a                and manufacturers seek to impose liability for
criminal misused a gun.                                  wrongful conduct those businesses engaged in,
                                                         such as negligent sales or defective designs. They
                                                         do not argue that anyone should be liable simply
                                                         because a product they sold or made was used in
This bill is needed to weed out frivolous suits.   Not true. Not a single suit against the gun industry
                                                   has been deemed frivolous by a court; many have
                                                   been successful. Even if someone were to file a
                                                   frivolous lawsuit, the case would be dismissed and
                                                   the lawyers could be sanctioned for abusing the
                                                   legal system under current law.

All suits against the gun industry have failed.    Not true. Across the country, juries and judges have
                                                   found that gun manufacturers and gun dealers can
                                                   be liable for their actions. In the lawsuit brought by
                                                   the victims of the DC-area sniper shootings, the gun
                                                   dealer and manufacturer whose negligence allowed
                                                   the snipers to arm themselves with an assault rifle
                                                   paid $2.5 million to the victims in settlement of the
                                                   case. If it had been law, this legislation would have
                                                   denied justice to the sniper victims and locked the
                                                   courthouse door to innocent victims in the future.

Most states have enacted laws like this already.   Not true. The majority of states that have enacted
                                                   laws giving some immunity to the gun industry have
                                                   only prohibited suits brought by local governments.
                                                   Only six states have enacted immunity laws even
                                                   arguably as broad as the federal bill backed by the
                                                   gun lobby.

The real goal of lawsuits filed against the gun    Not true. That is equivalent to saying that lawsuits
industry is to bankrupt the gun industry and       alleging that cars should be made crashworthy or
achieve handgun prohibition.                       with air bags were attempts to ban automobiles.
                                                   Like all tort suits, these cases attempt to
                                                   compensate innocent victims and encourage
                                                   responsible conduct.

Lawsuits against the gun industry are an           Not true. Legislatures and administrative bodies
improper attempt to use courts for regulatory      regulate; courts adjudicate – they award money and
purposes and the legislation would protect the     may enter injunctions. If Congress is concerned that
regulatory power of federal and state              judges may “regulate,” then they should enact laws
governments.                                       that would limit the relief courts can give across the
                                                   board, with respect to all products and businesses.

         Every successful movement for social change in America has used the legal system to achieve reform. The civil rights
movement battled segregation and racial discrimination in the federal courts, long before landmark civil rights legislation was passed.
The consumer movement sued to make cars and other products safer, paving the way for subsequent regulation. The environmental
movement has pursued civil suits against polluters that have been an important supplement to the work of enforcement agencies like
the Environmental Protection Agency.

         In recent years, the courtroom also has become a new focus of efforts to address the continuing American tragedy of gun
violence. Liability lawsuits have challenged gun industry practices that contribute to gun violence, bringing about much-needed reforms
in how guns are made and sold. The gun lobby has countered with a concerted effort to pass federal legislation giving the gun industry
sweeping legal immunity from lawsuits. Indeed, such legislation is the NRA’s top legislative priority.

         How can liability suits help prevent shootings and save lives? And why is the gun lobby so determined to shut the lawsuits

                                    LIABILITY LAWSUITS ARE AN EFFECTIVE DETERRENT
                                                TO DANGEROUS PRACTICES

         The prospect that a company may have to pay for the damage caused by its irresponsible conduct is a powerful incentive for
reform of corporate behavior. Indeed, it is a far more powerful incentive than the possibility that a legislative body may enact legislation
making the conduct unlawful. Although legislation typically bars a company from engaging in dangerous conduct in the future, it
generally permits the wrongdoer to retain the profits derived from its conduct. Lawsuits seeking damages for irresponsible conduct, on
the other hand, can threaten a company with damages that exceed the benefits derived from the wrongdoing. For this reason, litigation
has played a critical role in reforming the conduct of manufacturers and sellers of other dangerous products, like tobacco, alcohol and
automobiles. Litigation provides a particularly important incentive for the gun industry since guns are uniquely under-regulated and
much of the industry’s most dangerous conduct is not prohibited by statutes.

          The threat, and reality, of civil damages liability can be an effective deterrent to dangerous gun industry practices. For
example, recently a West Virginia gun dealer paid $1 million in damages to settle a case against it brought by two New Jersey police
officers. The officers were shot and seriously wounded with a gun sold as part of a 12-handgun sale by the dealer, paid for in cash by
a straw purchaser for a gun trafficker. The dealer completed the sale, and pocketed the profits, even though it was obvious that the
guns were headed directly into the underground market. It is well known that straw purchases and large-volume sales by gun dealers
are key sources of supply for the illegal gun market. This payment of substantial damages by the West Virginia dealer sends a strong
message to dealers throughout the country that they, too, may pay substantial amounts in damages if they engage in such sales. This
will deter these high-risk sales practices by other dealers, which will reduce the flow of guns into the illegal market.

        If the gun lobby had succeeded in passing special legal immunity for the gun industry, the West Virginia gun dealer would
have escaped all accountability to the wounded officers. The deterrent value of damages litigation would be lost, reckless gun sellers
would not hesitate to engage in highly-profitable sales to traffickers, and more lives would be lost to criminal gun violence.

                                       LIABILITY LAWSUITS ARE MAKING GUNS SAFER

         The importance of liability lawsuits is especially important as an incentive for the gun industry because, unlike other dangerous
products, it is subject to no federal consumer safety regulations. Firearms and tobacco products are the only two consumer products
specifically exempt from regulation by the Consumer Product Safety Commission. This means that the civil justice system provides the
only incentive gun manufacturers have to make their guns safer. Now the gun industry seeks an exemption from civil liability as well.

         Beginning in 1995, accidental shooting victims have brought lawsuits challenging the failure of gun makers to install safety
features on their guns, particularly to prevent shootings by children and other unauthorized users. At that time, no major gun
manufacturer was selling guns with internal locks to prevent unauthorized use. Now, even though no federal statute requires internal

locks, at least fourteen gun makers are advertising guns with this feature. One company – Taurus Firearms – sells all its handguns
with internal locks. The widespread use of internal locks on guns is the most significant safety advance in firearm design in decades. If
legislation is enacted limiting the liability of gun manufacturers for failing to install safety mechanisms on guns, this trend toward safer
guns will be stopped in its tracks. There will be no incentive to innovate for safety.

                                     LIABILITY LAWSUITS HAVE CAUSED GUN SELLERS
                                            TO AGREE TO LIFESAVING REFORMS

          Settlements of lawsuits against the gun industry have resulted in agreements by gun sellers to change their business
practices. For example, in the lawsuits brought by twelve California cities and counties against the gun industry, two major California
gun dealers and three national gun distributors avoided going to trial by agreeing to significant reforms. One notorious Bay-area
dealer, Trader Sports of San Leandro, pledged to annually train its employees to recognize and block sales to straw purchasers for
criminals, implement improved inventory tracking to prevent guns from being lost or stolen, maintain an electronic record of crime gun
traces and go beyond current legal requirements in verifying the identity of gun buyers. The California agreement was entered as an
order of the Court and serves as a model “Code of Conduct” for other gun dealers.

          After the West Virginia dealer was sued by the two New Jersey police officers, the dealer voluntarily implemented a new policy
of refusing to make large-volume sales to individual buyers, and began to train its employees to spot straw purchasers. Three other
gun shops in West Virginia adopted similar policies.

        These reforms in California and West Virginia would never have occurred if the gun lobby had succeeded in closing the
courthouse doors to those challenging industry conduct.

                                    THE LEGAL SYSTEM SHOULD BE ALLOWED TO WORK

          Our legal system gives ordinary citizens the capacity to challenge powerful corporate interests when the pursuit of profit
jeopardizes public health and safety. The gun industry is now seeking what no other industry has been able to achieve: special
protection from the legal rules that courts apply to all other businesses and individuals in society. The gun lobby wants to enact special
rules that hold gun sellers above the law and stack the deck in the industry’s favor.

          The NRA and the gun industry know that our court system can be a powerful engine for reform. That is why they are so
determined to corrupt the system by creating special legal protections for reckless gun sellers and depriving injured victims of their
legal rights. The gun violence prevention movement must be just as determined to protect our system from this special interest

                                      LEGAL EXPERTS SAY LEGISLATION
                                         WOULD GIVE GUN INDUSTRY
                                  SWEEPING IMMUNITY FROM LEGITIMATE SUITS
          The NRA and its supporters have urged Congress to enact gun industry immunity legislation for one primary, purported
reason: the bills, they say, prohibit “frivolous” lawsuits, but do not bar “legitimate” cases. For example, Senator Specter, a sponsor of
last year’s S. 659, recently said that under the bill “if a case is found to have merit, it will proceed,” and “if a judge said there are
grounds for a civil recovery then this case would not be affected by [the Lawful Commerce in Arms Act]."1 The NRA stated, “The bill is
narrowly tailored. S. 659/S. 1806 provides protection only against lawsuits based on the criminal or unlawful acts of third parties—not
on their own negligent or criminal conduct.” 2

         One problem with this argument. It is utterly untrue.

         Neutral legal experts confirm that the legislation that the bills considered in the Senate in the last Congress, S. 659/1806 and
S. 1805 would give sweeping immunity to the gun industry enjoyed by no other industry, and would bar many meritorious cases
brought by victims of gun violence injured or killed by negligent gun sellers and manufacturers, or by defective products.

•   The author of a Congressional Research Service report on S. 659, 28-year veteran of the Research Service Henry Cohen, said,
    "It does not appear the bill would be limited to frivolous lawsuits. That's my neutral assessment."3

•   David Boies, one of the nation’s preeminent and distinguished lawyers, whose clients have included the U.S. Department of
    Justice in the Microsoft antitrust suit, issued an opinion letter in which he concluded that:

         o   “[T]he proposed legislation would insulate gun dealers and manufacturers from the obligations to act reasonably and in
             good faith that every other business has. If the legislation were to pass, sellers of products that are among the most
             dangerous products would have the least obligation to act reasonably.”

         o   The bill “would require the immediate dismissal” of the lawsuit brought by victims of the D.C.-area snipers against Bull’s
             Eye Shooter Supply, the dealer that “lost” the sniper’s assault rifle (along with 237 other guns), even though Washington
             courts have held that the suit is consistent with Washington state law.

         o   The bill “would have far-reaching implications” and “would accord gun dealers and manufacturers an unprecedented

         o   “[U]nder the statute, dealers and manufacturers of lethal weapons would receive insulation from lawsuits to which the
             sellers and makers of virtually every product (including toy guns) would be subject.”

         o   “The legislation would close the courthouse doors nationwide to any claims arising out of, among other things, the
             negligent security or storage practices of any gun dealer or manufacturer, any gun dealer’s negligent sale of guns to so-
             called “straw purchasers” for illegal gun traffickers, and any gun manufacturer’s negligent failure to include basic safety
             devices that would have prevented tortious or criminal shootings.”

         o   “[T]he proposed immunity legislation would undermine the incentive that encourage reasonable business practices in the
             gun industry, thereby inevitably failing to deter avoidable gun injuries and fatalities.”

•   Former White House Counsel Lloyd Cutler issued an opinion letter in which he concluded that:

         o   The bills “would broadly prohibit civil actions against firearms manufacturers and dealers. * * * [I]t is clear that [it] is not
             designed to preserve litigation that relies solely on allegations of violations of duties imposed by state common law – such

  Philadelphia Weekly, February 18, 2004,
2 (accessed 2/17/04).
  Philadelphia Weekly, February 18, 2004,

            as a manufacturer or retailer’s negligent failure to adhere to a duty to use reasonable care in its sales and distribution

        o   Mr. Cutler specifically analyzed the effect of S. 1805 on the lawsuit brought by victims of the D.C.-area snipers against
            Bull’s Eye Shooter Supply and concluded that those who argue that the bill would allow the sniper victims’ suit “are wrong
            on this point. The bill, if enacted, would require dismissal of [the] case.”

•   Over 60 law professors from Harvard, Yale, Columbia, Georgetown, and other schools from across the country signed a
    letter concluding that:

        o    “This legislation represents one of the most radical statutory revisions of the common law of torts that any legislature –
            federal or state – has ever considered, let alone passed.”

        o   “The Act is breathtakingly radical. It affords to a handpicked few—those who make, distribute, and sell guns—special
            protection against the most commonplace, long-established form of tort liability: accountability to the standard of care
            required by principles of negligence. This legislation also constricts—to the point of virtual elimination—the long
            established tort doctrine of negligent entrustment, as applied to gun manufacturers and distributors, by giving them
            immunity from responsibility not afforded their counterparts in any other industry. Finally, the bill’s treatment of products
            liability law fails to comprehend or convey the current state of that area of tort doctrine, creating an entirely false
            impression that S. 659 provides for public safety and civil justice by preserving actions in products liability for injuries
            caused by the occasional single firearm botched in production.”

        o   “It would be inconsistent with [the common law] tradition—and simply unwise—to immunize from tort liability members of
            the gun industry whose negligence, if established, enables criminal shooters to kill and maim more easily then would
            otherwise be the case. Yet if passed, the Protection of Lawful Commerce in Arms Act (S. 659) would grant gun
            manufacturers, distributors, and sellers precisely this immunity, a privilege bestowed on no other industry.”

        o   “If passed, the Act will prevent victims of gun violence to even question whether the makers and marketers of guns have
            acted negligently, that is, failed to conduct themselves as would a similarly situated reasonable person of ordinary
            prudence, caution, and regard for the safety of other people. Such total silencing of injury victims against a party who has
            played a causal role in the infliction of their harms represents a complete departure from tort doctrine as well as a marked
            shift in the federal legislature’s traditional policy of minimal intervention into state common law.”
     Editorials Opposing Immunity Legislation
SOURCE                                                DATE
Ft. Wayne (IN) Journal Gazette                        3/12/2004
St. Louis Post-Dispatch                               3/10/2004
Winston-Salem Journal                                 3/10/2004
Buffalo News                                          3/8/2004
Hartford Courant                                      3/8/2004
Columbus Dispatch                                     3/7/2004
Atlanta Journal-Constitution                          3/5/2004
Contra Costa Times (Walnut Creek, CA)                 3/5/2004
Dayton Daily News                                     3/5/2004
Lancaster New Era/Intelligencer Journal/Sunday News   3/5/2004
The Journal News (White Plans, NY)                    3/4/2004
Los Angeles Times                                     3/4/2004
The Philadelphia Inquirer                             3/4/2004
The Post Standard/Herald-Journal (Syracuse, NY)       3/4/2004
Christian Science Monitor                             3/2/2004
Boston Globe                                          3/2/2004
Indianapolis News/Indianapolis Star                   3/2/2004
The Post-Crescent (Appleton, WI)                      3/2/2004
St. Louis Post-Dispatch                               3/2/2004
The Oregonian                                         3/1/2004
Minneapolis-St. Paul Star-Tribune                     3/1/2004
Ft. Wayne (IN) Journal Gazette                        2/29/2004
Roanoke Times and World News                          2/28/2004
The Dallas Morning News                               2/28/2004
Lancaster New Era/Intelligencer Journal/Sunday News   2/27/2004
Portland Press Herald                                 2/26/2004
Chicago Sun-Times                                     2/25/2004
Philadelphia Inquirer                                 2/25/2004
The Washington Post                                   2/25/2004
Shreveport Times                                      2/25/2004
Roanoke Times and World News                          2/25/2004
Chicago Tribune                                       2/24/2004
Philadelphia Daily News                               2/23/2004
Hartford Courant                                      2/23/2004
Sarasota Herald Tribune                               2/23/2004
Dayton Daily News                                     2/23/2004
The Tennessean                                        2/21/2004
The Morning News Tribune                              2/20/2004
SF Chronicle                                          2/20/2004
Virginia Pilot                                        2/19/2004
Newsday                                               2/18/2004
The Dallas Morning News                               11/19/2003
Christian Science Monitor                             11/3/2003
The Recorder                                          10/17/2003
Atlanta Journal Constitution                          10/10/2003
New York Times                                        9/28/2003
New York Times                                        9/22/2003
San Francisco Chronicle                               8/31/2003
Indianapolis Star                                     7/28/2003
Dayton Daily News                                     7/12/2003
Virginia Pilot                                        6/16/2003
LA Times                                              5/20/2003
Daily News                                            5/18/2003
Atlanta Journal Constitution                          5/15/2003
Baltimore Sun                                         5/12/2003
New York Times                                        5/8/2003
Fort-Worth Star Telegram                              5/8/2003
Dallas Morning News               5/8/2003
The News Journal-Delaware         5/6/2003
The Seattle Times                 5/2/2003
Philadelphia Daily News           4/30/2003
Cleveland Plain Dealer            4/29/2003
The Seattle Times                 4/29/2003
Courier Journal, Louisville, KY   4/26/2003
Washington Post                   4/25/2003
Columbus Dispatch                 4/25/2003
Virginia Pilot                    4/25/2003
The Philadelphia Inquirer         4/23/2003
Indianapolis Star                 4/20/2003
New York Times                    4/16/2003
Kansas City Star                  4/16/2003
Atlanta Journal Constitution      4/16/2003
Chicago Sun-Times                 4/16/2003 Jersey          4/16/2003
USA Today                         4/15/2003
The Bergen Record (NJ)            4/14/2003
Hartford Courant                  4/14/2003
St. Louis Post                    4/14/2003
St. Louis Today                   4/13/2003
Christian Science Monitor         4/11/2003
The Salt Lake Tribune             4/11/2003
The Indianapolis Star             4/10/2003
New York Times                    4/10/2003
AP                                4/10/2003
San Francisco Chronicle           4/9/2003
New York Times                    4/8/2003
Times Union                       4/8/2003
New York Post                     4/8/2003
New York Times                    4/8/2003
New York Times                    4/4/2003
Charleston Daily Mail             4/3/2003
Denver Post                       4/1/2003
New York Daily News               4/1/2003
The Plain Dealer                  3/26/2003
The Star-Ledger                   3/21/2003
Kansas City Star                  3/17/2003
The Birmingham News               3/10/2003
New York Times                    2/19/2003
The Philadelphia Inquirer         2/10/2003
The New York Times                2/8/2003
Los Angeles Times                 2/7/2003
The Star-Ledger                   1/31/2003
New York Times                    1/15/2003
Detroit Free Press                1/4/2003
New York Times                    10/8/2002

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