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October 15, 2015

This critique has been updated three times, most recently on October 17, 2016.
Click here to jump to that update.

A PolitiFactoid.com Critique of...

Wisconsin jury finds gun store liable in shooting of two cops

as broadcast on CBS This Morning on October 14, 2015.
(click here for the story at CBSnews.com)

I happened to watch the CBS Evening News with Scott Pelley on October 13. At the beginning of the show, right after he listed the upcoming stories, Pelley interrupted the regular order of things to alert us to “breaking news from Milwaukee, where a jury has just found a gun store liable in the shooting of two police officers.”

For CBS News, this news was so big that it had to be put in front of everything else, as if the entire country had been waiting with bated breath to learn the verdict, like with the O.J. Simpson trial. I'd wager good money that 99 percent of persons outside of Wisconsin had no idea this lawsuit was even going on.

The next morning, on October 14, I was having breakfast when CBS This Morning began presenting a story about the verdict. CBS This Morning  was hosted that day by Gayle King, Anthony Mason, and Norah O'Donnell – all journalists, according to the CBS News website. Presenting the story about the verdict was Rikki Klieman, described as the show's “legal expert.”

As the report unfolded, I became more and more appalled at the misleading descriptions, political spin, and blatant anti-gun bias that were shamelessly woven into nearly every aspect of the presentation.

I reported in a critique of a prior CBS story that CBS News seems to be covering this and related stories as if the network has a mission to disembowel a certain federal law pertaining to lawsuits against gun manufacturers and gun shops. That law, the Protection of Lawful Commerce and Arms Act of 2005 (PLCAA), has repeatedly been targeted by CBS News with what appear to be efforts to sway public opinion against the law and convince policymakers to repeal or drastically weaken the law.

The story presented by Klieman and the co-hosts of CBS This Morning was not even subtle. Journalists are usually somewhat covert when they inject bias and spin into their news stories. Not so with this example from the CBS This Morning crew. The message seemed to be right out in the open – i.e. this law is horribly unfair and needs to be “changed” – and they don't seem to think there's anything wrong with that. The story even goes so far as to include a plug for Hillary Clinton and her presidential campaign because she has promised to do whatever she can to get this law repealed if she's elected.

See PolitiFactoid.com's critique below, which appears as dark blue, indented type, embedded in excerpts from the story.

Wisconsin jury finds gun store liable in shooting of two cops

Co-host Norah O'Donnell:
This morning a Wisconsin gun store is liable in the shooting of two Milwaukee police officers. The cops won a nearly $6 million ruling in a landmark civil suit yesterday against Badger Guns. They argued the store was negligent in selling the weapon that critically wounded them.

Co-host Gayle King:
Officers Graham Kunisch and Bryan Norberg were both shot in the face back in 2009. Kunisch lost an eye and Norberg was hit in the mouth.

When O'Donnell and King introduce the story, they completely omit the perpetrator when describing what happened to the police officers. Instead, they tell us it was “the weapon” that critically wounded the officers, without mentioning the existence of a perpetrator. CBS News seems to have a habit of doing that.

Video clips of Patrick Dunphy (plaintiffs' attorney):
...and if some gun dealers around the country realize that they may have their feet held to the fire because of the punitive damage award here, then that's a bonus. [jump cut] One verdict in Milwaukee is certainly a good step. Is it going to change the way things are done around the country? Time will tell.

This video clip from the plaintiffs' attorney is CBS's first foray into spinning the story into a propaganda piece. CBS seems to have cherry-picked these particular comments, which contain nothing about the case itself or how the jury reached its verdict. CBS chose to exclusively feature comments about the potentially far-reaching effects the verdict might have on “the way things are done around the country” and how that would be a “bonus.” Keep in mind that CBS chose to feature these specific comments from the attorney, and these comments alone.

I encountered a much more complete video of the attorney's interview with reporters after the verdict. It's rather amazing to watch the whole thing and compare it to the two tiny clips that CBS extracted.

The attorney tries to stay focused on the case itself, but reporters keep asking him to instead opine about how the verdict will “send a message across the country” and “change the way guns are sold,” virtually forcing him to comment on those possibilities, even though he said he didn't want to send a message across the country and that he didn't think or care about widespread change.

Even in that light, CBS picked two comments on that subject that mainstream media reporters on the scene had to virtually pry out of the attorney's mouth. After all, the agenda to “change” things is really all that matters, right?

Co-host King:
“Time will tell.” CBS News legal expert Rikki Klieman joins us at the table. Rikki, good morning.

Legal Expert Rikki Klieman:
Good morning.

Co-host King:
Were you surprised by this decision, and why is this such a big deal?

I was surprised because I thought that most jurors might not really toe the line that has been advocated by gun-control people and responsible gun ownership people. At the same time, if you look at the facts of this case, this was the perfect case. It took a two-week trial and basically nine hours for 12 people to do what Congress could not and would... not... do... in... years. It's momentus, this decision.

Klieman gets off to a rowdy start. First, she says she was surprised by the verdict because she thought most jurors would not follow the philosophy of “gun-control people” and “responsible gun ownership people.” She seems to have forgotten that jurors are supposed to make decisions based on the facts of the case and what the law says. Jurors are not supposed to “toe the line” in favor of any personal philosophy or political agenda. A personal philosophy about gun control or gun rights should have no bearing. Persons who cannot make impartial decisions are supposed to be screened from the jury pool.

Next, Klieman says this case was the perfect case. Given that this case was “perfect,” why should she be surprised by the verdict?

Lastly, she bubbles over with the claim that the jury did something that Congress “could not and would... not... do... in... years.” With this, she makes a couple of rather silly and misleading implications. Bear in mind that Congress can do only two things with the law: repeal it or change it.

  1. Klieman says the jury did something that Congress just could not bring itself to do, and so the jury performed that duty for Congress. However, since Congress can only repeal or change the law, and the jury can do neither of those things, Klieman's statement is ridiculous on its face.
  2. By implying that the verdict either repeals or changes the law, Klieman also implies that the verdict is not in keeping with the law as written. That is also ridiculous because the verdict is in perfect harmony with the law, as you'll see below.

Klieman's words, her tone, her inflections, and her body language all tell us that she's overjoyed with this momentus verdict. You can just see the joy oozing from her pores. She seems to be having trouble containing herself.

Co-host Anthony Mason:
Let's talk about the 2005 law, which protects gun manufacturers. How effectively could this change things?

With this question, Mason jumps right into what I described earlier as the apparent mission of CBS News to disembowl the Protection of Lawful Commerce and Arms Act of 2005 (PLCAA). Mason doesn't ask anything about the facts of the case, the provisions of the law, or what caused the jury to reach its verdict.

All that stuff is secondary to an agenda to “change things” about the law. Mason doesn't even seek to explore whether anything's actually wrong with the PLCAA. Instead, he cuts right to the chase – How is this verdict going to change things about the law?

Well, the law is the law. It is called the Protection of Lawful Commerce and Arms Act. It is the strongest piece of gun control legislation. There is no other industry, Anthony – not the pharmaceutical companies, not the car manufacturers, not the appliance people – who have immunity from civil liability. What happened here is that these two police officers in the city of Milwaukee said, “Enough is enough. You can't just immunize an industry”...

Co-host Mason, interjecting:

Klieman, continuing:
... as was done back in 2005 and in 30 states. But, here, the facts – we have to look at the facts, where they say – the jury agrees – that in this gun dealer's store, that they should have known, if they did not know, that this is what we call a “straw purchase.”

The CBS “legal expert” makes an error here that even a first-year law student wouldn't make. The jury was asked specifically whether Badger Guns knew or should have known that the transaction was an illegal straw purchase, and the jury answered, “No.” (Check this out by clicking here for the verdict document. See the jury's answer to Question No. 10.)

You might think a legal expert for CBS News would have enough legal acumen to understand the difference between “yes” and “no,” but keep in mind that this is the same legal expert who suggested that a jury for a Wisconsin trial court can perform some of the same functions as the Congress of the United States, and who seemed to think it's okay for jurors to make decisions based on personal or political philosophies.

In any event, Klieman finally wants to talk about “the facts” of the case, but only after painting a misleading picture of the law, then making an error of fact, and then leaving out the most important facts. She says the PLCAA provides “immunity from civil liability” and that the plaintiffs said, “You can't just immunize an industry.” In reality, however, that's not what the plaintiffs said and that's not what the PLCAA does.

What Does the Law Do?
This is a good opportunity to examine the specifics about the PLCAA. To do that, I went to Congress.gov, which begins its summary of the law with the following:

“Prohibits a qualified civil liability action from being brought in any state or federal court against a manufacturer or seller of a firearm, ammunition, or a component of a firearm that has been shipped or transported in interstate or foreign commerce, or against a trade association of such manufacturers or sellers, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief resulting from the criminal or unlawful misuse of a firearm.”

At first, that sounds a bit like the “immunity” Klieman was talking about, but it's not. First, as you can see, the PLCAA's immunity is limited to the results of “criminal or unlawful misuse of a firearm.” That means the only instances in which any immunity is granted to the gun industry are those in which harm results from a third party's unlawful behavior with a gun, ammunition, or a component of a gun. That restriction, all by itself, greatly limits the law's scope.

But, wait – there's more! The PLCAA goes on to list six circumstances under which the limited immunity described above is nullified, which means there is no immunity for gun manufacturers or dealers in the following types of lawsuits, even when the law's immunity would otherwise apply:

  1. A lawsuit brought by a directly harmed party against a person who transfers a firearm knowing that it will be used to commit a crime of violence or a drug trafficking crime;
  2. A lawsuit brought against a seller for negligent entrustment or negligence per se;
  3. Allegations that a manufacturer or seller of a firearm knowingly violated a state or federal statute applicable to the sale or marketing of the firearm and the violation was a proximate cause of the harm for which relief is sought;
  4. Allegations of breach of contract or warranty in connection with the purchase of the firearm;
  5. Allegations that death, physical injuries, or property damage resulted directly from a defect in design or manufacture of the firearm when used as intended or in a reasonably foreseeable manner, except when the discharge was caused by someone committing a criminal offense; or
  6. A lawsuit commenced by the U.S. attorney general to enforce firearms provisions under the federal criminal code or the Internal Revenue Code.

It might help to see the PLCAA's provisions in a flowchart. That way, it's easier to understand all the tests that must be passed before immunity is granted:

Klieman misrepresents the PLCAA by describing it merely as providing “immunity from civil liability,” which is a grossly misleading simplification that entirely ignores the circumstances under which no immunity is granted. Those circumstances amount to instances in which the gun manufacturer or dealer is alleged to have actually done something wrong. In those instances, there is no immunity.

For instance, if a gun dealer engages in negligent behaviors, the law grants no immunity. If a manufacturer or dealer violates state or federal law regarding the sale or marketing of a firearm, the law grants no immunity. If a manufacturer designs or markets a defective firearm that harms people outside of criminal activity, the law grants no immunity.

In a nutshell, the only immunity granted under the PLCAA is immunity to being held liable for the unlawful activity of other people. CBS News seems to think that's outrageous. How dare Congress enact a law that lets you off the hook for the results of crimes or unlawful activity committed solely by someone else!

Klieman is supposed to be a renowned “legal expert,” so she can't be excused for ignorance about what the PLCAA actually says. Given that, I can only wonder whether she suffered a minor stroke right there in the CBS studio that erased these portions of the law from her memory. CBS News cannot claim ignorance, either, because the network broadcast two stories in December 2014 that mentioned the law's exceptions. (Those two stories were the first time I noticed that CBS seemed to have a mission to take down the federal law. Click here for that critique.)

Where Did this Law Come From?
CBS News and Klieman also failed to discuss why this federal law was enacted at all. It just stands to reason that viewers might wonder, “If this law is so horrible, how did it get created in the first place?” You have to go no further than Wikipedia to discover what led to the law:

“In the years before passage of the act, victims of firearms violence in the United States had successfully sued manufacturers and dealers for negligence on the grounds that they should have foreseen that their products would be diverted to criminal use. The purpose of the act is to prevent firearms manufacturers and dealers from being held liable for negligence when crimes have been committed with their products.” [1]

We should not be surprised that CBS News would leave this out. To explain it would be counterproductive to the gun-hating narrative and efforts to impugn the law. Prior to the PLCAA, gun manufacturers were being successfully sued simply for making products that performed as they were designed. Yes, shooting someone with a gun will harm that person, but the gun is supposed  to fire a bullet when the trigger is pulled. That's the nature of a firearm. If the gun industry cannot manufacture and market firearms because of unjustified lawsuit liability, that would pretty much defeat the purpose of having a 2nd Amendment, wouldn't it?

Congress felt that such lawsuits needed to be reined in and that liability for manufacturers and dealers should be limited to harm caused by the manufacturers or dealers themselves, not by third parties who use guns to commit crimes. Instead of explaining any of that, Klieman whines that, in her words, no other industry has “immunity” from civil liability – not the pharmaceutical companies, not the car manufacturers, not the “appliance people.”

It's interesting that she phrased it that way, because Wikipedia goes on to say that under the 2005 federal law, “manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible, in much the same manner that any U.S. based manufacturer of consumer products (i.e. automobiles, appliances, power tools, etc.) are held responsible.” [2]

The renouned legal expert at CBS News failed to mention any of this, choosing instead to tell us no one else has immunity like this, and “enough is enough.” I wonder why she would do that.

Does this Verdict Clash with the Law?
Absolutely not. Klieman and CBS News failed to point out that the PLCAA worked exactly as it was supposed to in this Milwaukee case:

  • The PLCAA specifically provides that a gun dealer has no immunity in cases where the dealer is negligent or engages in negligent entrustment and thereby causes the harm for which relief is sought.
  • In this case, the jury ruled that the gun shop was both negligent and engaged in negligent entrustment when selling the gun in question, which led to the police officers' injuries. Therefore, the gun shop was held liable.

For those who prefer the flowchart depiction, see below for how the jury used the PLCAA to guide its reasoning. Note the portions highlighted in yellow:

That's exactly how the PLCAA is supposed to work. However, this CBS News report makes you think the jury reached its verdict despite the law, instead of in conjunction with the law. If the jury had to go around the law in order to reach this verdict, then anyone can see that this law needs to be repealed or changed, right?

To present the story that way is grossly misleading. You couldn't pass Journalism 101 at a community college if you turned-in an assignment containing this sort of tripe. The “journalists” reporting this story should be ashamed. Instead, they seem pleased with themselves.

Co-host Mason:
This store had a particularly bad record.

Oh, my God! One of the worst in the country. And no matter what the ATF – the Bureau of Alcohol, Tobacco, and Firearms – did to cite them over and over and over again, they would just change their name, and they would go forward. So, in this case, you have two people who entered the store, one underage – couldn't buy a gun. They come in, and the straw buyer – the guy who's gonna buy it for him – he actually even checks the box that he's not buying it for himself, and the guy in the store helps him undo that and do it right. You had video, powerful video, so, although...

Co-host King, interrupting:
Will that lead to other changes, do you think, in the country?

I guess King had had enough of Klieman trying to talk about the case itself. CBS News doesn't seem to care about that. Instead, King interrupts and asks Klieman basically the same question that Mason asked earlier – Will this case lead to changes??

Kleiman's earlier answer to this same question (which was “the law is the law”) was obviously not what CBS wanted to hear. This time, Klieman obliges by giving us the following opinion, which the gun-hating community (and probably CBS News) hopes will become a self-fulfilling prophecy, and then she hypothesizes that the mainstream media's favorite presidential candidate for 2016 might actually fulfill the gun-hating quest to change the law.

Well, I think it could lead to many other lawsuits. This is the second lawsuit ever brought – the first time that a gun dealer has ever been held liable. So, this will lead other people to feel emboldened that they should go forward, who are in that gun control or responsible gun ownership group. Ultimately, is the law going to change? Well, it's not that simple. You're going to need someone who comes in as a president. Hillary Clinton was very strong last night...

Co-host King, interjecting:
She was.

Klieman, continuing:
...that if she gets in, she's going do something about this. Others, not so much.

Holy cow. If this story had not been appalling enough up to this point, it reached new depths of “appalling” with this little tidbit. Klieman jumps into an entirely different type of journalistic malpractice by going out of her way to mention that this horrible federal law cannot be changed unless we have the right president, and Hillary Clinton is the only candidate who is “very strong” in wanting to “do something” about the law. Hint, hint.

And, even if you don't care about the PLCAA, co-host Gayle King wants you to know that Clinton was “very strong” in the Democratic presidential debate held on the previous evening. Note how King expresses that opinion by interjecting, “She was,” into Klieman's comment about Clinton being very strong, even before Klieman finishes her point that Clinton was very strong about wanting to do something about the law.

Co-host O'Donnell:
Interesting to see what happens in other court cases. Rikki Klieman, thank you very much.

Co-host King, to Klieman:
We think that you should speak more passionately.

Co-host Mason:
Ha, ha, ha!

You So Funny!
The report ends with King poking fun at Klieman's lack of objectivity by jokingly suggesting that Klieman should be even more passionate when reporting about this verdict than she already is. Mason thinks this is quite humerous! It's even LOL funny!

Yes, isn't it funny that someone's “passion” should cause a political agenda to be inserted into a misleading news report by a network that holds itself out as a respectable, objective, unbiased news outlet? Isn't that hilarious? And, isn't it even more hilarious that someone presenting a news story on that same network would include a shameless plug for a specific presidential candidate? The hilarity about that is just boundless! No wonder they think it's so funny!

Omissions Can Speak Louder Than Words
So, aside from failing to represent reality and failing to dispense with anti-gun bias, what else did CBS News leave out of the story? How about what happens next with this lawsuit? Neither Klieman nor the co-hosts mentioned anything about that. Is Badger Guns busy writing checks to the two police officers, or is the case likely to be appealed? The story by CBS This Morning doesn't contain even one iota of information about that. In case you're wondering, attorneys for both sides in the case say Badger Guns will appeal the verdict, according to The Milwaukee Journal Sentinel. (Note: See Update #2 below.)

The failure to mention what happens next just supports the notion that CBS couldn't care less about this case, except to the extent that it provides a vehicle to continue the mission of taking down the Protection of Lawful Commerce and Arms Act of 2005. Nevermind that the law provides no immunity when a gun manufacturer or dealer has actually done something wrong, like commit a crime or behave negligently. CBS failed to inform you that the law grants no immunity in such cases, leaving you instead to believe that the law grants immunity under any circumstances, and how can a law like that be anything but bad?

Also nevermind that the PLCAA worked just like it was supposed to, i.e. the jury found that Badger Guns did something wrong, so the verdict went against the gun shop. That's how the law is supposed to work (which also wasn't mentioned). Nevermind all that, because if people know about that stuff, the PLCAA actually seems to make sense. No, no, no – we can't have that.

Instead, people must be kept in the dark about the law's actual effects and origins. That way, the gun-hating community is better able to demonize the PLCAA and eventually get it “changed” or repealed altogether. CBS News, to its own disgrace, has become virtually indistinguishable from the gun-hating community in this regard.

The Good Old Days
Don't forget – if the PLCAA is repealed, we can go back to the “good old days” of being able to sue gun manufacturers and dealers simply for producing or selling a product that functions the way it's supposed to. Suing the gun industry to death seems to be the last, best hope of left-wing gun haters in their quest to drive private gun ownership to the brink of oblivion.

The PLCAA helps keep that from happening and that's why gun haters abhor the law so much. And, based on how CBS News covers and portrays the law, the network seems to be doing everything it can to bring back the “good old days.”

Quick sidebar: In the wake of the Milwaukee verdict, Time Magazine described suing the gun industry as a “new strategy.” However, it's actually an old strategy, which the 2005 federal law was intended to offset, except for cases in which the gun industry is actually responsible for harming someone. I guess painting it as a “new strategy” makes it sound fresh and exciting and might encourage more lawsuits, but there's nothing new about the lawsuit strategy. In fact, the lawsuit strategy is so old that it's what started this whole thing to begin with. The lawsuit strategy is not the most recent chapter in this saga – it's the very first chapter. The editors at Time must know that, which makes me wonder why they would say otherwise.

But, wait... Why stop there? The mainstream media can also morph this issue into a way of promoting a certain presidential candidate, which we saw happen in this CBS News report.

Keep up the good work, CBS!

Note: The purpose of this critique is not to defend the PLCAA. This is a critique of how the story was covered by CBS News. This critique's commentary about the law itself is supported by third-party sources (Congress.gov and Wikipedia) and is included for the sole purpose of contrasting the PLCAA's actual contents and origins with how CBS News depicts the law.

If you want to read more about the track record of CBS News in its coverage of the Protection of Lawful Commerce and Arms Act of 2005, click here to read PolitiFACTOID.com's review of a CBS story from December 2014 about a separate gun lawsuit.



UPDATE #1: (October 18, 2015) One day after I posted this critique, an article appeared at PolitiFact.com that speaks directly to Hillary Clinton's claim on October 7 that the gun industry is “the only business in America that is wholly protected from any kind of liability.” Rikki Klieman made virtually the same claim on CBS This Morning. Even though the PolitiFact.com article is not flawless and is aimed at Clinton, not CBS News, it addresses much of the disinformation contained in the CBS This Morning report. The article is quite informative and I encourage everyone to read it. By the way, PolitiFact.com rated Hillary Clinton's claim as “False,” and information in the article supports many of my positions found in this critique.

Anyway, given that PolitiFACTOID.com and PolitiFact.com have both proven (either intentionally or by accident) that much of what CBS This Morning reported is just not true, I'm waiting for CBS News to issue a retraction or a correction...



still waiting...

hearing nothing but crickets...

If anyone out there learns that CBS News has corrected any of its mistakes in this CBS This Morning story, please let me know.

UPDATE #2: (December 14, 2015) The Milwaukee Journal Sentinel reported on December 11 that the plaintiffs in the lawsuit have agreed to a settlement in the sum of $1 million, in exchange for Badger Guns not appealing the verdict.

UPDATE #3: (October 17, 2016) Three days ago, a trial court judge in Connecticut dismissed a lawsuit filed by families of the victims of the murderous rampage that took place in December 2012 at Sandy Hook Elementary School in Newtown, Connecticut. The murderer used a semi-automatic Bushmaster AR-15 rifle to kill 26 children and adults. The plaintiffs were seeking to hold the gun manufacturer, the distributor, and a gun shop liable for the deaths, under the negligent entrustment exception in the PLCAA. But, unlike the lawsuit against Badger Guns, the Connecticut judge ruled that the facts in the Sandy Hook case did not satisfy the negligent entrustment exception.

The tragic murders at Sandy Hook Elementary School in 2012 dominated the news media for months. When the Sandy Hook lawsuit was filed two years later, CBS News did at least two stories about the murders and the lawsuit (one of which I critiqued). The CBS Evening News also revisited the whole tragic affair on the third anniversary of the murders with a story about the families of some of the victims and their efforts in favor of gun control.

However, now that the Sandy Hook lawsuit has been dismissed, CBS News has been strangely silent about it, even though the Sandy Hook case is extremely high-profile. I cannot find any CBS News program that included news about the dismissal in any broadcast, unlike the network's immediate and extensive coverage of the Milwaukee verdict against Badger Guns, which CBS treated like the most important news in the world.

Given how much importance CBS has bestowed upon these lawsuits, you might think the dismissal of the Sandy Hook case would be considered big news. However, CBS seems to have no interest in reporting to its television viewers that the gun industry has won a huge victory in the Sandy Hook lawsuit, perhaps because the results cannot be spun into a narrative on how the dismissal will "change things" about the PLCAA. What does that say about the motives and priorities of CBS News leadership regarding the PLCAA and the politics of gun rights versus gun control? Just wondering.



  1. On October 16, one day after I posted this critique, the Wikipedia page in question was edited and the entire passage referenced by this footnote was deleted. The passage had appeared on that page since March 9, 2013. Click here to see the most recent version that contained the passage quoted above. According to Wikipedia history, the passage was removed by a user known as Gaijin42. As of October 18, 2015, that user's page contained the following note: “I was topic banned from gun control during the GC arbcom case. That topic ban is currently suspended.” Click here for more info about this particular Wikipedia topic-ban. (Or, click here to return to the critique.)
  2. On October 17, the same Wikipedia page seems to have been edited once again by Gaijin42, and the text referenced by this footnote no longer contains the examples of manufacturers of consumer products. To wit, “(i.e. automobiles, appliances, power tools, etc.)” was removed from the text. The now-missing verbiage contained two of the three industries listed by Klieman in her CBS This Morning report. By the way, according to Wikipedia history, Gaijin42 appears to have made at least 24 edits to this one Wikipedia page over a three-day span from October 15 through October 17, for some reason. (Click here to return to the critique.)


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