Balance of Power

NINETEEN

On the morning of the hearing before Judge Gardner Bond, Sarah and Lenihan were greeted by reporters, satellite trucks, and angry demonstrators on both sides, yelling at each other across a pathway to the federal building maintained by two lines of uniformed police. United States Marshals guarded the door to Bond's courtroom, and the wooden benches overflowed with more reporters and partisans. But at least the starkly modern courtroom was quieter, its sounds muted by decorum and dissipated by the majestic ceilings which distinguished the Federal District Court. Perhaps, Sarah reflected, justice, like mercy, was best hoped for in airy spaces.

But her own hopes diminished within moments of Judge Bond's appearance on the bench. After curtly noting Lenihan and Sarah's presence, and that of John Nolan and Harrison Fancher, Bond said, "The Court will begin by denying plaintiff's motion for a preliminary injunction."

No discussion, Sarah thought bitterly. In a clipped, relentless cadence, Bond continued, "The next matter before the Court is defendants' motions to dismiss plaintiff's wrongful death, antitrust and public nuisance claims. We will take them each in turn, by defendant." Facing Nolan, he concluded, "Mr. Nolan, you have ten minutes to argue for the dismissal of Mary Costello's cause of action against Lexington Arms for the alleged wrongful deaths of her mother, sister and niece."

With that, Nolan stepped briskly to the podium. "Let me begin," he told Judge Bond, "by acknowledging two principles.

"First, on a motion to dismiss, this Court must assume that the facts alleged by Mary Costello are true. Second, if the facts alleged—even if true—do not state a cause of action under California law, which this Court must still apply, it must dismiss Miss Costello's claims for wrongful death."

Hands flat on the podium, Nolan paused, his voice resonant, his gaze up at Bond respectful but serene. "This case," he continued, "began with a monstrous rampage in which John Bowden wounded the survivors beyond all hope of recompense. In our hearts, we hope for some way of healing what so many of us found very close to unbearable. But the law acknowledges what reason tells us—that the terrible scene at San Francisco International was the work of a single demented mind."

It was an elegant beginning, Sarah thought, Nolan at his most statesmanlike. Stone-faced, Lenihan began scribbling notes for his refutation.

"Reason," Nolan said abruptly, "also tells us a harsher truth: that this lawsuit is nothing more than a publicity stunt—brought contrary to settled law—in the service of power politics . . ."

"Mr. Nolan," Bond admonished in his patrician manner, "leave the 'power politics' to politicians. It's the 'contrary to settled law' which is the business of this Court."

"Of course, Your Honor." Unfazed, Nolan continued as though the mild rebuke had been instructive, even agreeable. "Plaintiff asks this Court to hold the maker of a legal firearm liable for its criminal misuse by a murderer it never heard of, and whose actions were beyond its control. That, we submit, is not—and cannot be—the law.

"On this point, Congress has spoken. Guns are a legal product. The sale of a Patriot-2 and Eagle's Claw bullets in Nevada—if that's what happened here—is perfectly legal. And even if John Bowden purchased his P-2 at a gun show—a guess which we must, for the moment, accept as truth—not even plaintiff's highly creative counsel can allege that Lexington had anything to do with that.

"Your Honor, we don't punish the maker of Ferraris because some driver breaks the speed limit. We don't sue the distiller of a single-malt Scotch because the driver was inebriated. California law recognizes that responsibility resides in the individual: in the reckless driver, the alcoholic—and in John Bowden, the murderer . . ."

"And your authority?" Bond inquired.

The hearing had begun to resemble a minuet, Sarah observed, in which both partners, Bond and Nolan, executed their steps with precision. "Richards versus Stanley," Nolan responded promptly, "held that the owner of a stolen car is not liable for the reckless driving of a car thief, even though he carelessly left the keys in the ignition. That core principle is still the case."

Bond held up a hand. "The difference, Mr. Nolan, is this so-called 'inflammatory advertising.' According to plaintiff 's complaint, Lexington's ad in the SSA magazine was a positive incentive to purchase and misuse by the demented."

"Damn right," Lenihan murmured. At the podium, Nolan gathered himself. "All that we really know, Your Honor, is that Bowden had the SSA magazine. We don't know—and I expect will never know—why or where or even when he bought it, who sold it to him or even what he was doing in Las Vegas. Without such proof, plaintiff has no case."

"That may well prove right," Bond interrupted. "And plaintiff's complaint may well be based on speculation . . ."

"Sure," Lenihan whispered to Sarah, "Bowden picked up The Defender, then flew off to play the slot machines . . ."

"But," Bond continued, after a brief, sharp glance at Lenihan, "at this point, as you conceded, this Court must accept plaintiff 's allegations that the advertisement led to Mr. Bowden's purchase. Given that, couldn't Lexington foresee that its ad copy might enhance the prospects of criminal misuse?"

Nolan spread his arms in an elegant shrug. "Certainly," he said in the same placid tone, "it may be possible for a manufacturer to foresee— or at least imagine—that at an unknown place, at an unknown time, some unknown person may perpetrate a tragedy. But foreseeability is merely one element of an action for wrongful death. The most essential element is causation—that Lexington caused this man to kill these victims.

"Lexington did not tell him, let alone cause him, to murder Mary Costello's family—any more than it caused him to abuse his wife or hate the President and First Lady for their apparent, though insufficient, acts of intervention on his wife's behalf."

This, Sarah thought, was artful: the first suggestion, stated as an afterthought, that Mary Costello's lawsuit was designed to expiate the Kilcannons for their own neglect. "This lawsuit," Nolan continued, "is legislation by litigation. Because the plaintiff dislikes the gun laws as written by the Congress, she asks this Court to invent some. But it is the role of this Court to interpret existing laws, not make up new ones. That job belongs to the House and Senate . . ."

And Fasano and the SSA, Sarah thought, were working overtime on that. But Bond appeared content. With a brisk nod, he told Nolan, "I understand your argument, Mr. Nolan," and then turned to Lenihan and Sarah. "Who will speak for the plaintiff?"

* * *

"A Ferrari," Robert Lenihan opened bluntly, "is not a killing machine. Nor is a bottle of Scotch. But load up a Lexington P-2 with forty Eagle's Claw bullets, and that's exactly what you have—a weapon whose only use is to shoot a lot of people quickly, at very short range, with the maximum assurance that all of them will die."

In style, Sarah thought, Lenihan could not be more different than John Nolan—staccato, impassioned, contemptuous of legal niceties. Immediately, Bond shot back, "Mr. Nolan's point is that under California law, Lexington Arms—like the makers of a Ferrari or Glenfiddich Scotch—cannot be liable if their product is not defective."

"On that point," Lenihan said with scorn, "I can't agree more with Mr. Nolan. John Bowden's P-2 was certainly not defective. It worked exactly as advertised.

"What else is the P-2 good for but killing humans? Not for hunting deer, unless the deer approaches you—after which there wouldn't be enough left of him to hang up on the wall. And the Eagle's Claw bullet? That was good for only one thing: ensuring that Marie Bowden did not outlive her family.

"That's why it was designed to become the six deadly knife points which shredded Marie's vena cava. That's why the P-2 was designed to accommodate forty such bullets. And that, Your Honor, is the manner in which Lexington chose to market them."

Already, Sarah understood why Robert Lenihan excelled with juries. But it was far from clear that Gardner Bond would let this case reach a jury. In contrast to his demeanor with Nolan, Bond scrutinized Lenihan with the clinical disdain of a pathologist examining a cancer through a microscope. "Not foreseeable?" Lenihan asked rhetorically. "What Lexington's defense comes down to is this: 'We may be marketing to murderers and criminals, but we didn't cause these murders because we didn't know this murderer by name . . .' "

"What about the Richards case?" Bond snapped.

"Irrelevant. There's no profit in leaving keys in an unlocked car. Lexington profited by marketing death to people like John Bowden . . ."

"You're not claiming," Bond persisted, "that these ads are in any way misleading?"

"Far from it," Lenihan answered sardonically. "That's my point."

Bond leaned forward. "Then aren't they—however objectionable you may find them—commercial speech protected by the First Amendment?"

"No, Your Honor—for two reasons. First, commercial speech is less protected than pure political speech. Second, freedom of speech is not absolute, as Justice Holmes recognized in saying, 'There is no right to shout "fire" in a crowded theatre.' Freedom of speech must be balanced against the harm of speech such as this . . ."

"And yet," Bond retorted, "one can shout 'fire' if it's true. If selling the P-2 should not be legal, isn't that a matter for Congress? And isn't this lawsuit, as Mr. Nolan suggests, an effort to usurp the role of Congress?"

"Not at all," Lenihan countered. "As our brief details, this lawsuit is grounded in the California law of torts . . ."

"I've read your brief," Bond interrupted brusquely, "and comprehend your argument. It's time to hear from the SSA regarding the claims against it. Such as they may be."

Disheartened, Sarah picked up her pen.

* * *

Everything that Lenihan was, Sarah thought, Harrison Fancher was not. His voice was thin but harsh, and his demeanor suggested a man who preferred dark corners, the nooks and crannies of concealed strategy, to the messiness of dealing with humanity at large. His skills were those of a tactician gifted with a first-class mind, a monomaniacal persistence and an inexhaustible sourness of spirit. In the law, Sarah had noticed, such persons tended to go far.

"This," Fancher told Gardner Bond with an air of spite, "is a spite suit. Let me be clear: the Kilcannon Center and its political allies have failed to achieve their goal of discrediting the advocates of gun rights. So now they would use this court to deny the SSA its First Amendment rights to defend the Second Amendment rights of all Americans."

"Then clear this up," Bond interjected. "If Lexington were liable for its advertisement, would the SSA be liable for printing it?"

"Not at all." Fancher folded his hands in front of him, body hunched in a defensive crouch. "No question—the claims against Lexington are phantasmagorical. But to rope in the SSA is an outrage.

"Mary Costello's lawyers make two claims. First, that the SSA ran a truthful ad, written by Lexington, that they imagine John Bowden saw." Fancher's voice filled with sarcasm. "So if the San Francisco Chronicle accepts an ad by a maker of pesticides, and a disaffected wife puts it in her husband's soup, the Chronicle is liable to his children?

"What nonsense. In desperation, these lawyers have concocted worse nonsense: a 'conspiracy' in which the SSA forces Lexington to sell the P-2 and Eagle's Claw bullets at gun shows—the first 'conspiracy' in history, at least under the antitrust laws, where the alleged pernicious purpose is to compel a wholly legal act . . ."

"Plaintiff's broader claim," Bond corrected him, "is that the SSA directed Lexington in the acts leading to the so-called wrongful death of Ms. Costello's relatives."

"But on what basis?" Fancher asked. "That the SSA aggressively advocates gun rights, in the Congress and out? That's our right as citizens. Just as our members have the right not to buy a company's products because they no longer like what it stands for." Pausing, he turned to Sarah. "A choice, when exercised against so-called villains like 'big tobacco,' which is advocated by the Kilcannon Center itself."

With a studied lack of expression, Sarah scribbled on her notepad, "Economic gain." As if on cue, the judge told Fancher, "Plaintiff also alleges that the SSA encouraged other gun makers to isolate Lexington in the event of a boycott, encouraging them to divide Lexington's market share should it reach an agreement with the President regarding gun shows. Might not that violate the antitrust laws?"

Fancher grimaced. "It's a pity," he said with reedy contempt, "that, on motions to dismiss, the presumption of truth is given to the scrupulous and unscrupulous alike. At this juncture, this Court is required to credit such fantasies. But plaintiff's counsel is required to have a reasonable basis for believing them. At some juncture, I hope the Court will inquire as to whether counsel has defrauded it."

"You can be sure," Bond countered stiffly, "that this Court will never permit a fraud to go to trial. But, as of now, all it can do is wonder." Abruptly turning to Lenihan and Sarah, Bond demanded, "Which one of you cares to respond to that?"

* * *

Reaching the podium, Sarah paused to steady herself, drawing one deep breath. Bond's judicial stare bore into her.

"Your Honor," she began, "if the Chronicle ran ads for rat poison headed 'lethal to husbands in sixty seconds,' then the Chronicle would answer for it . . ."

"Is that what the SSA did, Ms. Dash? I don't recall that the ad incited murder."

"Effectively, it did. The ad touted the lethal capacity of the Lexington P-2. It reminded criminals and batterers that the P-2 was banned in California. And then—in a companion ad for the gun show itself—the SSA magazine told them where to acquire one without a background check."

"So now," Bond interrupted, "the SSA is responsible for two ads— one by Lexington, and one by the promoters of the gun show."

"Which were placed side by side." Sarah felt anger overcome her nervousness. "Don't the editors read their own magazine? They had no obligation to run these ads at all. Instead, they did so in a manner designed to maximize the chance that what did happen would happen— that John Bowden would set out for Las Vegas . . ."

"According to your complaint."

"Which I stand by, Your Honor." Sarah hesitated, and then reached the most delicate point. "As I do our allegation that the SSA helped other manufacturers conspire to take Lexington's share of the market, should the SSA commence a boycott . . ."

"Mr. Fancher," Bond cut in, "claims that you have no basis for alleging that. I have no basis for knowing. But you know—as we speak— whether or not you do.

"You're an officer of the court, Ms. Dash. Under Rule 11, each claim in your complaint must have a good faith basis. If this claim does not, you may be liable for defendant's legal fees and expenses. Or even, in the most extreme of cases, subject to disbarment."

Sarah could not protest. Unrestrained by the presence of a jury, Bond could castigate her as he liked, and be as peremptory as he wished. And his barely veiled threat, Sarah realized, reflected Lenihan's own reservations. Steeling herself, she answered, "Rule 11 does not require us to prove our case before we've had a chance to prove it. That is what discovery exists for. At this stage, we must have a good faith basis for believing—should this Court let the case proceed—that we can prove it." Pausing, she finished firmly, "I would not be standing here, Your Honor, were that not the case."

From the bench, Bond scowled at her. "At this point, Ms. Dash, we'll take a fifteen-minute recess. Then I'll wish to hear about another point I question—this public nuisance theory, and the haste you seek in pursuing it. And, specifically, whether it's a pretext to accelerate discovery."

* * *

"Palmer," Chuck Hampton told the President, "is playing hardball."

Alone in the Oval Office, they reviewed the increasingly tense partisan politics surrounding Palmer's hearing. "I can't believe," Kerry said, "that Chad's scheduled the committee vote for three o'clock."

"And with as little notice as possible," Hampton replied. "He won't even tell Frank Ayala whether he'll hold a separate vote on gun immunity."

Despite his thirteen years in politics, Kerry found Chad's opposition difficult to accept—not the fact, but the manner of it. "Less than three weeks ago, Chuck, Chad was here for dinner, when you were. Now he's fronting for Fasano as if he were Paul Harshman. The vote Lara requested is utterly routine."

"Maybe not on this bill," Hampton responded. "A chairman can do pretty much whatever he wants. In Fasano's place, I wouldn't want my Republican colleagues on Palmer's committee sticking their necks out on barring Mary's lawsuit. I'd want to give them the cover of voting 'yes' or 'no' on the entire bill."

"Will any of the Republicans break ranks?"

"At this point, Ayala thinks not. I agree."

For a moment, the President reflected. "However this goes down," he said emphatically, "I need a party line vote against the bill—all eight Democrats. If Democrats peel off in committee, there may be more defections on the floor. This is our first test of strength, and I don't want to signal weakness."

Hampton nodded. "Then you'd better call Vic Coletti, Mr. President. I can't quite nail him down."