Balance of Power

TW ENT Y

"Plaintiff's public nuisance theory," Nolan told Judge Bond, "has two purposes—both of them abusive.

"First, by asking for a permanent injunction against this so-called threat to Californians—the legal sale of a legal product in another state— plaintiff seeks to create an air of crisis where there is none . . ."

"For what purpose, counsel?"

The seemingly straightforward question, Sarah knew, presented Nolan with a challenge. If he accused plaintiff of attempting to push toward a trial before the passage of the Civil Justice Reform Act, he must acknowledge defendant's interest in delay. "To further inflame the media," Nolan said at length. "To make their political points, plaintiff's counsel must be able to feed their supposed evidence to the press, sooner rather than later. Pushing through depositions to an early trial will enable them to do that."

"Not in this Court," Bond said sternly. "What's your second point?"

"That by recasting a wrongful death action as an ongoing public nuisance, plaintiff's counsel have created a monster which would swallow the entire law of wrongful death." Nolan hesitated, his manner suggesting a reluctance to speak harsh but necessary truths. "To be plain, Mary Costello's family is already dead. Enjoining Lexington Arms from selling weapons in Nevada cannot change that . . ."

"What plaintiff alleges," Bond interjected in a dubious tone, "is some form of continuing danger."

"That's entirely speculative," Nolan said dismissively. "And there is no precedent whatsoever for enjoining so-called excessive sales in another state as a public nuisance in California.

"Even accepting plaintiff's allegations, she cannot assert that Lexington controls sales at gun shows in Nevada, or anywhere else, an allegation required under the law of public nuisance. Which, as our brief points out, exists to protect property, not people . . ."

"Very well," Bond cut in. "Does counsel for the SSA have anything to add?"

At the defense table, Harrison Fancher stood. "This isn't even our gun, Your Honor. A public nuisance claim against the SSA is more than innovation—it's a mutation. If anything, the case shows why there's a pressing need for legislation to protect legitimate organizations from legalized blackmail by plaintiffs' lawyers. Where the only restraint on such suits is the conscience of the lawyers who bring them, our only protection is this Court."

Bond smiled faintly. "Which of plaintiff's counsel," he inquired, "wishes to respond?"

* * *

Walking to the podium, Sarah felt edgy, angry and sharp. "Plaintiff's argument is this: the people of California can protect their homes, but not their lives.

"That's not the law. In City of Boston versus Smith & Wesson . . ."

"Boston," Bond said sharply, "is in Massachusetts. The murders occurred here, and therefore California law applies. What about the California case of Gallo versus Acuna?"

"Gallo supports us, Your Honor. There the Court enjoined gang members from selling drugs. . . ."

"In a specific neighborhood, Ms. Dash. Because the illegal activities involved made the neighbors virtual prisoners in their own homes. This case involves a legal sale in another state . . ."

"Of a gun banned in California," Sarah retorted, "but which Lexington advertised in California, through the SSA, providing a virtual blueprint for how criminals and batterers could buy one without a background check.

"It's illegal to sell a P-2 in California. In California, it's illegal to sell any weapon at a gun show without a background check. Lexington lured John Bowden to Nevada . . ."

"Bowden's dead," Bond came back. "As Mr. Nolan points out, so are Mary Costello's relatives. What's the 'ongoing harm' here?"

"Last year," Sarah answered promptly, "over two thousand Californians were murdered with a gun. And nearly one-third of all guns used in crimes against Californians were sold outside California—principally in Nevada and Arizona . . ."

"Crimes," Bond retorted, "are committed by criminals . . ."

"Whom Lexington need not control." Sarah was in a rhythm now, and any awe of Gardner Bond had vanished. "All that the law requires is a substantial threat to public safety, and Lexington's failure to minimize it. 'Minimize'?" Sarah repeated with undisguised contempt. "We allege that the P-2 is a top ten crime gun—and that Lexington knows it.

"We allege that a disproportionate number of P-2s sold in Nevada are used to murder Californians—and that Lexington knows that. They know all that, and profit from it. Assisted by—if not controlled by—the SSA itself." Pausing, Sarah spoke more slowly. "Mary Costello is not confined to seeking damages for her terrible loss. She is entitled, under the law of California, to protect the many others who may die—who surely will die—because of defendants' willful conduct . . ."

"So what do you propose I do?"

"Permit us to go to trial. After which we'll ask you to enjoin Lexington from flooding California with P-2s; from advertising P-2s within the state; and from selling a P-2 in any state without a background check."

Frowning, Bond rejoined, "That's a drastic remedy, counsel. One might even say draconian."

"Enough is enough," Sarah answered. "For far too long, we've lived by bromides like 'guns don't kill people, people do.' If that were true, why not just ship people off to war without the guns?

"Mr. Fancher has made free with the word 'nonsense.' The real nonsense is defendants' argument, which amounts to one extended plea: 'Keep the plaintiff's lawyers from picking on us.'

"Consider that, and then consider the Lexington P-2, good only for killing.

"Consider Lexington's ad, which is all about killing.

"Consider Mary Costello, whose family was killed.

"Consider all the Californians who will be killed." Sarah softened her voice. "And then ask yourself, Your Honor, who it is that needs this Court's protection."

Silent, Bond regarded her with narrowed eyes. "Defendants," Sarah continued, "are right about one important thing. Because of the power and money of the SSA, 'existing' federal law did not protect Mary Costello's family from defendants' conduct in marketing this deadly weapon to John Bowden. It does not protect any of us now. The only protection for future victims is this Court's resolve to apply the law of public nuisance.

"If under that law, there's a line a gun maker shouldn't cross, and yet Lexington didn't cross it here, where on earth is the line?" Briefly, Sarah inclined her head toward Nolan and Fancher. "These defendants," she concluded, "have asked this Court for immunity from suit. This Court should turn them down, and let Mary Costello go forward."

Turning, she walked slowly back to the table. As she sat, Lenihan's eyes held the hint of a smile.

"At this time," Bond said abruptly, "the Court will announce its rulings."

* * *

At this time, Senator Frank Ayala said, it seems appropriate to call a vote on the gun immunity provision. As requested by Mrs. Kilcannon.

Kerry and Clayton watched CNN. In the Chairman's seat, Senator Palmer seemed to steel himself. I deeply respect the First Lady, he responded. But if we proceed in a piecemeal manner, we open the door to deconstructing this entire bill, voting on every clause which concerns any member of this committee . . .

Senator, Ayala said with rising indignation, this is not a matter of nitpicking every line. Among other things, this language would federalize the law of wrongful death to protect companies like Lexington Arms—by erasing whatever remedies are presently provided by state law . . .

Now wait. Paul Harshman's voice cracked with anger. That kind of accusation has no place in the United States Senate. If you wish to amend this bill, the place for that is the floor of the Senate itself. Let all one hundred senators consider this question, not merely the seventeen of us . . .

Watching, Kerry felt fresh anger of his own. "It's choreographed," he told Clayton. "Chad's trying to jam this through."

On the screen, Senator Palmer banged his gavel. The manner of voting, he said curtly, is the chair's prerogative. We will vote once, now, on the entire Civil Justice Reform Act as revised by this committee.