The Justice Game

30

After being granted pro hac vice status, Case McAllister rambled on for nearly half an hour about why Judge Garrison should dismiss the case. Kelly could hear the murmurs of agreement coming from the cheap seats.

McAllister’s primary argument was that manufacturers should not, as a matter of law and policy, be held liable for misuse of their products. He went through an illustrative list of products. Knives, of course. And what about cars? If somebody drives a car into a busy shopping center, should the manufacturer be liable? Then there was fertilizer. Nobody had sued fertilizer companies after Timothy McVeigh used a fertilizer bomb in Oklahoma City.

What about cigarettes? Kelly wanted to ask. But it wasn’t her turn yet.

McAllister then turned to the Protection of Lawful Commerce in Arms Act-a law he claimed was designed to prevent exactly these types of frivolous lawsuits. He explained the rationale, quoting extensively from the legislation itself. He spoke at a deliberate pace, with just a twinge of a Southern drawl: “Civil liability actions against gun manufacturers are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.”

He paused and glanced up at the judge, then continued reading. “The possible sustaining of these actions by a maverick judicial officer would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States.”

Judge Garrison’s face seemed to redden a little at the reference to a maverick judicial officer. “Isn’t there an exception for illegal acts by a dealer or manufacturer?” Garrison asked. “Including the types of straw purchase transactions alleged to have occurred in this case?”

It was a good question, Kelly thought, the first indication that maybe Garrison wasn’t totally drinking the Kool-Aid.

But Case McAllister just shrugged it off. “The exact language of the act says that a manufacturer or seller must aid or abet or conspire with another person to sell a gun to somebody who does not qualify. Here, my client didn’t sell the gun-the dealer did. And my client certainly didn’t aid or abet that sale. We didn’t even know about it until after the shooting.”

“Why isn’t that a jury question?” Garrison countered. “Questions of fact, like whether your client’s conduct was aiding or abetting, should be decided by a jury, not a judge.”

McAllister didn’t hesitate. “Because for hundreds of years criminal acts of third parties have cut off the liability for a seller or manufacturer. The only reason we’re here, with all due respect to Mr. Crawford, is because my client is the only entity associated with this gun that isn’t bankrupt.”

McAllister paused and swallowed, as if he didn’t like making this next part of his argument. “Larry Jamison shot Rachel Crawford. Jarrod Beeson bought the gun illegally. Peninsula Arms sold the gun illegally. My client violated no laws, yet we’re the only one who gets sued.

“We’re here because Mr. Crawford believes MD Firearms has deep pockets. Mr. Crawford wants somebody to pay for what happened to his wife, even if that person or entity acted entirely properly, selling guns legally to a federally licensed firearm dealer. Unfortunately for Mr. Crawford, my client is a gun manufacturer, not an insurance company. No reasonable judge would let this case go to the jury.”

McAllister packed up his papers and limped away from the podium. Garrison scribbled a few things on his legal pad, his red ears reflecting his displeasure at the tone McAllister had adopted.

“Ms. Starling,” Garrison eventually said. “Your response?”

Kelly stood and walked confidently to the podium. “On December 16, 1988, Nicholas Elliot, a sixteen-year-old kid, walked into his Virginia Beach high school with a semi-automatic assault weapon. He executed one teacher and wounded another. He had an entire class of students huddled into the back corner of a trailer, praying for safety, as he prepared to fire on them as well. The gun jammed, the teacher tackled Elliot, and the lives of all those students were saved.”

Kelly found her stride and picked up confidence with every word. She was right about the law. She had justice on her side as well. She just needed to make sure Garrison understood that.

“It was later discovered that a notorious gun store in Isle of Wight County named Guns Unlimited had allowed Nicholas Elliot to buy the gun through an illegal straw purchase, using his uncle as the paper purchaser of the gun, even though store employees should have known that Elliot was the real purchaser. The family of the slain teacher sued the gun store, and Judge John Moore faced a Motion to Dismiss very much like this one.”

Kelly had done her homework. Judge Moore had retired, but his opinions still held weight. The opinion itself was never recorded in the law books-at that time, only appellate court decisions were recorded. But the Handgun Violence Coalition had monitored the case and provided Kelly with the opinion.

Kelly handed a copy to Case McAllister and another copy to the judge.

“Judge Moore allowed that case to go to the jury against the gun dealer. His reasoning was based on common sense. Congress prohibits certain persons, like kids and felons, from purchasing firearms. When a dealer engages in an illegal straw sale to one of these prohibited persons, and then the purchaser commits a criminal act, the dealer can’t try to hide behind the doctrine of intervening cause as if they couldn’t anticipate those criminal actions. I mean, why does Congress prohibit sales of pistols to kids and guns to felons in the first place? Because the danger is obvious, not something unanticipated.”

Kelly paused for a moment, allowing Garrison to read a few lines of the opinion.

He looked up. “Continue,” he said.

“Mr. McAllister says that no reasonable judge would make such a ruling. I didn’t have the privilege of appearing in front of Judge Moore. But from everything I’ve heard, he was the epitome of reasonableness.”

Judge Garrison took off his reading glasses and studied the back wall for a moment.

He turned back to Kelly. “Anything else, Counsel?”

The question was judge-speak. It meant shut up and sit down while you’re still ahead.

“Not at this time, Your Honor.”

“Then this court stands adjourned for a brief recess.”

“All rise,” called the bailiff. The silence held until Judge Garrison disappeared out the door behind the bench. His exit was followed by a buzz of excitement and frustrated murmuring, as if the home team had just thrown an interception.

At Kelly’s table, Blake worked hard to contain his elation. “That was brilliant,” he said, his voice an excited whisper.

“We’ll see,” Kelly said, because that’s what sophisticated trial lawyers were supposed to say. But in her heart, she was agreeing with Blake.

That was brilliant.