Bresler felt Kirk's enthusiasm feed his own. "Gun politics," he told Fasano, "is stuck in this endless loop: Kilcannon versus the SSA, with the rest of us—including your party—watching like we're hypnotized. We need movement, Frank."
Fasano nodded, seemingly interested but noncommittal. Bresler felt him calculate the political geometry. "Let me take some soundings," he said at length. "On this issue, I can't get ahead of my people."
For three days, Bresler hoped for a breakthrough. And then he encountered Paul Harshman in the corridor of the Russell Building. With a solicitous air, Harshman took him aside. "Watch yourself, Marty. You shouldn't ask us to abandon our friends."
That afternoon, without explanation, Fasano turned them down.
* * *
Bresler and Kirk met with Clayton Slade in a motel room at Dulles Airport.
"You've got three weeks," Clayton told them bluntly. "If we can't reach an agreement, the President's introducing legislation and taking on the industry. He's more than a little sick of begging you for safety locks."
Bresler glanced at Jerry Kirk. "All we can do," Jerry told Clayton, "is talk to our companies."
For an intensive week of meetings and phone calls, they did—at Bresler's insistence, in total secrecy. Gradually, reluctantly, the five CEOs agreed that a modest safety measure, even in partnership with Kerry Kilcannon, was better than more lawsuits and terrible public relations. Bresler called Clayton and set a date for an announcement.
This time, Paul Harshman did not wait for a chance meeting. "This is far worse than the last time," he told Bresler by telephone. "Now you're turning your back on us."
Bresler put the phone down and called Clayton Slade. "Who knows about our agreement?" he demanded.
"Jack Sanders. The President. That's all. So it's not coming from us." Clayton paused. "I want to move this up before the SSA unravels it."
"How far up?"
"Two days from now, at a Rose Garden ceremony for police chiefs."
"That's not enough time . . ."
"We can't afford more time. Call your CEOs, and let me know."
Bresler and Jerry Kirk began dialing.
* * *
"Kilcannon was terrific," Bresler told Lenihan and Sarah.
For a moment, his expression changed, remembering a day when he was at the center of things and could imagine that gun politics was on the cusp of a tectonic shift. "He was easy and engaging," Bresler continued, "like a normal guy meeting other normal guys, one who honestly cared about saving lives. When he joked about putting us all in the witness protection program, everybody lightened up.
"That night we were all over the evening news—me, Kilcannon, and my CEOs, with a backdrop of police chiefs in blue uniforms. My CEOs loved it, Kilcannon loved it. The next day he called me personally, to thank me and say let's get to work on background checks at gun shows. Sure, I told him." Bresler emitted a harsh laugh, returning to reality. "Marty Bresler, the center of the known political universe. The honest broker, the media darling, impregnable as long as I succeeded for my members. With Kerry Kilcannon on my team, even the SSA would start returning my calls."
* * *
They didn't. Most Republicans barely did. An old friend, now at the SSA, told him in private that his photograph was taped inside the urinals at SSA headquarters. His only consolation was that his five member companies had suffered no public reprisal.
They never did. The day that everyone but George Callister withdrew their support and funding, one chagrined CEO told him, "I'll deny I ever said this. But once the SSA heard you were dealing with Kilcannon on gun shows, we had no choice."
"But how did they hear?" Bresler asked in a daze.
Heartsick, he broke the news to Jerry Kirk. Jerry took it better than Bresler had expected. Placing a collegial hand on Bresler's shoulder, he said, "Just worry about yourself, Marty. I'll be fine."
He was. The next week the SSA hired Jerry Kirk, and Bresler knew who had betrayed him, and why his career was over.
FIFTEEN
That night Lenihan and Sarah met in her office with Mary Costello. It was past nine o'clock. The two lawyers had just returned from Sea Ranch and, as Sarah had explained to Mary, the reason for haste was political—they needed to file before Mary and Lara faced Chad Palmer's committee. To Sarah, Mary looked overwhelmed, as if too many events, barely comprehended, were moving far too quickly.
Lenihan seemed to sense this as well and, Sarah suspected, hoped to use their client's unease to reassert control. "Maybe," he told Sarah, "you'd better explain to Mary why you want to add the Sons of the Second Amendment as a defendant in her lawsuit. Even after hearing Bresler's story, I'm having some difficulty articulating your rationale."
Ignoring him, Sarah faced Mary. "Two reasons," she said crisply. "The first is politics. As you know, the Senate is taking up a bill which would wipe out your lawsuit, and you're appearing within days before Palmer's committee. He, and the Republicans, will look far worse if what they're trying to do is immunize the SSA.
"Second, the SSA effectively controls Lexington Arms—both through intimidation and, I'm willing to bet, by funding its defense. We'll never get a settlement from Lexington unless we can divide them." Briefly, Sarah paused. "It's challenging, for sure. But as I understand it, the SSA snuffed Bresler, and then Callister told President Kilcannon that Lexington wouldn't voluntarily impose background checks at gun shows because the SSA wouldn't stand for it. If the SSA was in effective control of Lexington, then the SSA may be liable for the deaths of your mother, Joan and Marie."
As Sarah finished, Mary turned to Lenihan. With an elaborate show of gravity, he slowly shook his head. "It's a terrible idea, Mary—terrible. If this case becomes a holy war against the SSA, they'll launch the most vicious PR campaign you've ever witnessed, in or out of court.
"I can tell you what they'll say—'the President's behind this. He can't succeed in Congress, so he's using Mary Costello's lawsuit to smear and punish advocates of gun rights.' In the public mind, your case will go from a search for justice to an exercise in hardball politics."
This was clever, Sarah conceded. At once Lenihan touched a nerve— Mary's resentment of her sister and, perhaps, the President; her fear of being dragged into the morass of politics. He also spoke a truth: in and out of court, the SSA would be a well-funded and no doubt vicious opponent. "Bob's right," she told Mary. "As far as it goes. My point is different. The ultimate reason your family was murdered is not John Bowden or Lexington Arms. It's the SSA."
Listening, Mary Costello looked even slighter than Sarah recalled. "But is that a harder case?" she asked Sarah.
"Much harder," Lenihan interjected. "Legally, and even morally. Far worse, we'd be buying an opponent with fanatic zeal and tons of money, who'll use this lawsuit to raise still more. We'll be faced with hordes of lawyers, crushing expenses, and every delaying tactic they can dream of . . ."
"We'll get that anyway," Sarah said dismissively. "At least if you believe, as I do, that the SSA will pick and fund the lawyers for Lexington Arms. They've got a stranglehold on the industry and on Congress. The only way to break that is to expose them."
"How?" Lenihan's sharp tone combined exasperation with contempt for her inexperience. "This is a lawsuit to recover damages for Mary Costello, not a political crusade against the SSA.
"As citizens, Sarah, you and I may despise the SSA and all its works. But we're lawyers, for Godsakes. Tell me how the SSA has violated the law. Not by lobbying. The Kilcannon Center does that, just on the other side. Not by threatening boycotts. Martin Luther King boycotted segregated diners, and our entire country boycotted South Africa . . ."
"By violating the antitrust laws," Sarah shot back. "So hear me out, Bob. For our client's sake."
Cornered, Lenihan turned to Mary, eyebrows raised. "I don't understand any of this," Mary told Sarah. "What did the SSA do?"
"Given what happened to Martin Bresler," Sarah answered, "what I think they did is
conspire against Lexington through the other manufacturers."
"In what way?" Lenihan asked with skepticism.
"By threatening the others; by coordinating resistance to the President; by promising the rest that—if the SSA put Lexington out of business for agreeing to background checks at gun shows—they could split up Lexington's market share." Turning to Mary, Sarah finished, "That violates the laws against unfair competition."
"It's also a fantasy," Lenihan rejoined. "Even Bresler couldn't tell us that. For that, we need the SSA to confess—if you can imagine it—or the other companies to rat them out. Or, at the least, testimony from George Callister more forthcoming than I can possibly imagine."
"True." Sarah still faced Mary. "So we'll go after the SSA's files—all contacts between the SSA and Lexington, and between the SSA and the other companies. We'll depose Charles Dane, all the CEOs. By far the best way of doing that is to sue the SSA itself."
"On what basis?" Lenihan persisted. "You're just guessing . . ."
"Not about the ad in the SSA magazine. So we can also bring a negligent marketing claim . . ."
"The SSA ran the ad, Sarah. They didn't write it. There's no precedent for suing them."
"Not directly. But I imagine you've read Rice versus Paladin Enterprises?"
Briefly, Lenihan hesitated. "Remind me of the facts."
"Rice imposed liability on a magazine for running an article describing how to commit a flawless execution . . ."
"I might recall that," Lenihan snapped, "if the case were relevant. I asked you to cite me a precedent."
"We can make the precedent," Sarah answered. "In my naïveté, I assumed that's what plaintiffs' lawyers do. Or are you suggesting that if Lexington wanted to place an ad saying that the P-2 was the best gun for batterers to use against their women, the SSA could run it with impunity?" Facing Mary, Sarah remained calm. "It's all a question of who's responsible," she said, "and why you've chosen to do this. To me, the SSA is morally responsible for thousands of needless deaths like these.
"Whether they're legally responsible is another matter. Proving that could be as hard as Bob says. But you should know what choices you have." Once more she turned to Lenihan. "Whatever we do, Bob, we need to accelerate discovery."
"Because Fasano's pushing the Civil Justice Reform Act?"
"Yes. The more we discover against Lexington and the SSA, the toughter it becomes to pass that law. If necessary, we'll take the depositions of people like Dane, and then leak them to the press."
For the first time, Lenihan smiled, his expression somewhere
between agreement and amusement. "Every now and then, Sarah, you give me hope. But how do you persuade a judge to accelerate discovery? Not so you can leak sworn testimony at a quicker pace, the better to embarrass Senator Fasano."
"No," Sarah came back. "By asking for injunctive relief to prevent an ongoing threat to public safety."
Lenihan glanced at Mary. "An injunction?" he asked in a tone of muted wonder. "Against what ongoing threats? I don't mean to be insensitive, but Mary's family is already dead."
Silent, Mary stared at her folded hands. "And more will die," Sarah answered, "if this law passes, and then the President can't get his gun law through the Congress. This case is about far more than money, Bob. No amount of that will compensate Mary for what she's lost."
"That's politics, not law," Lenihan insisted. "On what basis do we get a judge to order discovery at maximum speed?"
"Lexington," Sarah retorted, "is committing a public nuisance. That means any unreasonable interference with a right common to all Californians. Including the right not to be murdered by guns banned in California, like the Lexington P-2.
"You've said it yourself, Bob. I think we can show that Lexington is flooding the state with guns sold just beyond the Nevada border. I also think we can show that an inordinate number of them are used to murder Californians—as with Mary's family. And we already know that Lexington and the SSA showed criminals and people like John Bowden where to buy it in Nevada without going through a background check." Looking from Lenihan to Mary, Sarah finished, "It's not that hard a case. Your family's death is part of a pattern—a company selling bad guns to bad people in a number of rotten ways. A pattern that should be stopped by an injunction."
Mary sat straighter. "If that's what's going on," she said to Lenihan, "and we can stop it, I want to."
"And those are good intentions," Lenihan said respectfully. "But speeding up the discovery process so drastically exacerbates our problems. It allows the lawyers for the SSA to play more games—withholding documents so we question witnesses like Dane without having the facts we need, then forcing us into a trial we're not ready for. And adding the SSA will turn a fiasco into a nightmare.
"Sarah knows the drill as well as I do. We go in for a temporary restraining order, which we probably won't get. Then the judge will likely set a hearing on a preliminary injunction within ten days. Within sixty to ninety days, we'll have plowed through all of our discovery— getting jerked around at every turn, and be facing a trial we're not ready for."
"Bob," Sarah said, "you've sued IBM, AT&T, and half the Fortune
500. What does your firm have all these lawyers for, if not to use them?"
"So we can decide when to use them, and where using them makes sense."
"It's your money," Sarah answered. "No question. I can only hope that stopping the SSA, keeping more murders from happening, and helping President Kilcannon save lives will satisfy your sense of occasion."
To Sarah's surprise, Lenihan laughed aloud. "I should let you say that to my partners," he said with irony but less hostility. "I'm sure they'd be delighted to put their money and our firm at your disposal."
Sarah spread her hands. "That," she said with a smile, "is all I could ask. But let's put that aside. Assuming that we collectively decide to do all this, where and when do we file?"
Though far too clever not to know what she was doing, Lenihan's ego was such, Sarah judged, that she might mollify him by ceding center stage. And so it seemed; as he answered her, Lenihan's manner resumed its usual placid self-assurance. "When is simple—immediately. As for where, the same place I chose at the beginning: the Superior Court for the City and County of San Francisco.
"My firm has an office here, and we're close to most of the judges. If we file in state court, the TRO will go before Judge Fineman or Judge Rotelli." Lenihan smiled with satisfaction. "They're both friends of mine, and they're up for re-election. Along with every partner in our local office, I've contributed to their campaigns."
Which, Sarah thought, is the problem with electing judges. "And so," she said wryly, "you think they'll give us a fair hearing."
Lenihan shrugged. "Even if we weren't friends, who do you suppose an elected judge is going to favor—the First Lady's surviving sister, a native San Franciscan, or an out-of-state merchant of death?"
At this, Sarah noticed, Mary seemed to wince. Briefly, Sarah touched her arm. "What about the trial judge?" she asked Lenihan. "They're selected by lottery."
"Same reasoning," Lenihan answered comfortably. "But why leave things to chance. Presiding Judge Morrissey is another old friend, the last of the old-line liberals. We can go to him and say 'Your Honor, this is a complex case. We need a judge assigned specially, to take it from the preliminary through trial.' The local specialist in complex cases, Judge Weinstein, is also very progressive. I expect he's who Jack Morrissey would give us."
It was fascinating, Sarah thought, if a bit unsettling, to listen to Lenihan game the system. "So you don't see any reason to take this to federal court?"
"God, no. There's no way of knowing who we'd get. And at least half of them are conservatives and they're appointed for life—the kind of judge who'd screw us without mercy. That's another problem with your theories, Sarah: they may try to gin up some argument to remove the case to federal court."
Sarah shook her head. "No grounds."
"So you
say. Just remember who said it." He sat back, his selfsatisfied gaze taking in both Sarah and Mary. "Whatever we end up filing, we go to state court with a complaint so colorful the newspapers and talking heads will quote it. Right after that we call a press conference. And then we use my public profile to launch an ongoing PR offensive."
Lenihan's "public profile," Sarah thought dryly, was somewhat less important than that of the President and First Lady—or, for that matter, the victims. And then it struck her that, once again, Mary Costello had been shunted to the margins. Turning to her, Sarah said, "You've been listening to us, Mary. Now it's your turn. Tell us what you want to do."
Mary looked from Lenihan to Sarah. "The same thing you do," she told Sarah. "I don't want more people dying. And if the SSA's responsible, it should pay."
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