To Sarah's surprise, Lenihan gave a shrug of fatalism. Perhaps he, too, was responding to the challenge.
"So when do we file?" Sarah asked him.
"The day after tomorrow," he said firmly. "In the morning."
SIXTEEN
At nine-fifteen in the morning, having notified Lexington, the SSA, and the media, Lenihan and Sarah filed their complaint. Shortly after two p.m., they entered the wood-paneled courtroom of Judge Angelo Rotelli.
Jammed with media, the courtroom had the low expectant buzz of conversation which preceded a judge's appearance. Already seated at the defense table, John Nolan, the managing partner of Kenyon and Walker, Sarah's former firm, surveyed his adversaries with a barely concealed distaste. Beside him was Harrison Fancher, a senior litigator from another large corporate firm, Hartman & Miles, whose cadaverous appearance and relentless style of defense had earned him the sobriquet "Angel of Death." But while Fancher's presence signalled that the case would be as unpleasant as Lenihan had predicted, it was Nolan that Sarah feared more. In her experience, his utter ruthlessness, his adamantine belief that his clients' privileged status should be preserved by whatever means at hand, was concealed by a mandarin inscrutability and cloaked in an air of diplomacy which appealed to judges. As Sarah and Lenihan walked to the plaintiffs' table, Lenihan smiled broadly at Nolan and Fancher.
"John," he said, with a basso profundo which carried to the media. "And Harry, too. What a pleasure. Which one of you has the gun nuts, and which the merchants of death?"
Without standing, Nolan gave him a thin smile, though his eyes became slits in the broad plain of his face. In an undertone meant only for Lenihan, he said, "It's back to the sandbox, I see. Or the cat box." Turning toward Sarah, he added in a cool, patronizing manner, "Hello, Sarah. Are you here to learn at the feet of the master?"
This jibe, Sarah knew, was fresh proof how much Nolan detested her: she had forced Nolan to accept her pro bono representation of Mary Ann Tierney—wholly against his conservative instinct—only by fomenting a near rebellion among the firm's female partners. Though tense, Sarah managed to smile. "Which one of you would that be?" she asked, just before Angelo Rotelli entered his courtroom.
The buzz subsided. A stocky man with dark, curly hair, Rotelli nodded at the lawyers with a benign expression as he took his place behind the bench, pausing briefly to note the presence of the media contingent cramming his courtroom.
"All right," he began. "This is the case of Costello versus Lexington Arms, et al., filed this morning. The matter before me is Mary Costello's request for a temporary restraining order, seeking to stop defendants' alleged activities endangering the lives of Californians. Who speaks for the plaintiff?"
As Lenihan rose, so did John Nolan. "Excuse me, Your Honor. John Nolan for defendant Lexington Arms. Before we proceed, I would like to bring the Court's attention to a matter which should prevent us from proceeding further."
Though seemingly surprised, Rotelli nodded briskly. "Yes, Mr. Nolan. I know who you are. What do you have for us?"
"A petition for removal to federal court." Advancing to the bench, Nolan handed up a sheaf of papers to Rotelli and then, turning with a glint of amusement the judge could not see, gave a duplicate to Lenihan.
"This is bogus," Lenihan protested to Rotelli. "In this case, the standard for removal is that the lawsuit must raise issues which are uniquely matters of federal law. We assert no such issues. Clearly, the defense has filed a phony petition, solely for the purpose of delay."
This, Sarah knew, was utterly correct. But Nolan's reply was calm and unapologetic. "Despite Mr. Lenihan's uncharitable gloss, his complaint—if that's what you can call a document so rife with rhetoric and bereft of law—does raise important federal issues. Specifically, exotic antitrust and public nuisance theories which implicate the Commerce Clause of the United States Constitution and which, in our humble view, threaten rights guaranteed by the Second Amendment of the Bill of Rights . . ."
At once, Sarah realized that she had baited her own trap: though Nolan's argument was clearly erroneous, the theories she had urged on Lenihan gave it whatever plausibility it possessed. "In any event," Nolan continued, "a removal petition is automatic. Once a defendant files it in federal court, as we have, the federal court must rule on it. As of now, this court has no jurisdiction and, therefore, no power to proceed."
On this point, Sarah thought with dismay, Nolan was correct. "This is a bad-faith motion," Lenihan objected. "Deserving of sanctions . . ."
Rotelli raised a hand, cutting Lenihan off. Brow furrowed, he riffled the pages Nolan had provided him, seemingly nettled by the motion and his imminent loss of an audience. Looking up from the papers to Nolan, he said, "Without adopting Mr. Lenihan's characterization, I must say, Mr. Nolan, that my first impression of this is that it's very thin. But you're correct that I have no discretion." Glancing at Lenihan, he spoke past the lawyers to the media. "If this case again comes before this court, as I believe it should, a federal judge will have to send it here."
With that, Rotelli stood, nodded to both sides and vanished from the bench. Flushed with anger, Lenihan murmured to Sarah, "That's only the down payment on suing the SSA. From here on out, we'll be paying on the installment plan."
* * *
But at their press conference, Lenihan was the picture of confidence.
He sat at a table between Sarah and Mary Costello, fondling the microphone in front of him as if it were a lover. Watching on CNN, Kerry remarked to Lara, "For Bob, meeting the press is an erotic experience."
This, Lenihan stated, is the beginning of the end of gun violence in America.
"I wish it were that easy," Lara murmured. Kerry nodded: Lexington's opening salvo, the removal petition, had sobered them both, as did Mary's wan expression on the screen.
Pausing, Lenihan placed a paternal hand on Mary's arm. The defendants know that, he continued. That's why they've induced their congressional protectors—including Senator Fasano and Speaker Jencks—to put forward a shameful piece of legislation solely designed to strip Mary Costello, and all those like her, of their right to pursue justice.
This, Kerry acknowledged, was the beginning that he had hoped for. But its end was as unpredictable as its impact on Lara and her sister. Silent, he rested his hand on Lara's shoulder.
* * *
Shortly after seven p.m., Eastern Daylight Time, the SSA countered with a press conference of its own. Standing behind a podium, Dane's saturnine mien was solemn and stern. He spoke with a slow and measured indignation which was more impressive than Frank Fasano could have hoped—a reminder of the magnetism Dane exerted on his supporters.
Drinking bourbon with Macdonald Gage, Fasano turned up the volume on his remote. This lawsuit, Dane began, is a moral outrage.
This was murder. The murderer is to blame. If there is more blame to assign, it belongs to the legal system and . . . a brief pause . . . and the victims' powerful relatives, both of whom failed in their duty to protect them from John Bowden.
Sitting beside Fasano, Gage laughed softly. It struck Fasano that anything Dane would say or do to torment Kerry Kilcannon was satisfying to Mac Gage. But Fasano himself was not so sanguine.
But who do they blame? Dane went on. The SSA and Lexington Arms— one of America's time-honored purveyors of guns to freedom-loving citizens . . .
"A little florid," Fasano observed. "This isn't the Fourth of July."
The SSA, Dane continued, is not a monolith. It's four million individual Americans, lawfully exercising rights granted them by our Founding Fathers. Our members didn't know John Bowden. They didn't control his actions. They played no role in Lexington's legal marketing of a completely legal product.
Pausing, Dane jabbed his finger at the camera. Make no mistake, America—the monolith in this case is the federal government, deployed by a President who is using this case to destroy the very companies who make your rights a reality, and the one organization which can prot
ect those rights from harm.
Kerry Kilcannon's weapon is not a gun. It is a cabal of plaintiffs' lawyers, in league with the left-wing group which bears his family name, exploiting a tragedy to which, sadly, his own personal derelictions were a primary contributor . . .
"He's on the edge," Fasano remarked. "Let's hope he doesn't say that Kilcannon has blood on his hands."
"Doesn't he?" Gage said with quiet bitterness. "He certainly has mine."
Defending this abuse, Dane continued, may well cost us millions. But we will never settle. We will fight this case to the bitter end—if necessary, in the Supreme Court itself—in defense of that fundamental freedom which makes all other freedoms possible: the right to keep and bear arms.
We call on our members to support us. We call on the American people to rise up as one in protest. Staring into the camera, Dane finished solemnly. We call on the leaders of Congress to put this outrage to an end . . .
He was stuck, Fasano realized, and so was Kerry Kilcannon. What Kilcannon had set in motion—a race between a lawsuit and the Senate; a clash between Kilcannon and the SSA—might spin out of control, with consequences worse than anyone could imagine. Only Macdonald Gage, turning to Fasano, could feel happy.
"Ready, Frank?" he asked.
SEVENTEEN
The following morning, as the result of random selection by computer, Sarah and Lenihan found themselves in the chambers of United States District Judge Gardner W. Bond.
Lenihan's grim demeanor reflected the harsh truth: out of fourteen judges they could have drawn, Gardner Bond was the worst for Mary Costello. That Bond had always disdained Robert Lenihan—sabotaging his cases to the extent he could—was the least of it. Bond was an idealogue in bow ties, a passionate conservative who, as a lawyer, had made his name by litigating pro bono against gay scoutmasters and in defense of demonstrators who harassed abortion clinics.
This was among the reasons that so many had opposed Bond's appointment to the bench. To Sarah, Bond seemed temperamentally unable, either in his professional or personal lives, to tolerate anyone who did not believe as he did. Another reason was his membership in two oldline private clubs which proudly excluded women. And still another was his active involvement in the Federalist Society, a group of right-wing lawyers dedicated, among other things, to their own ironic form of judicial activism—stacking the federal courts with conservatives dedicated to combating what they perceived to be the excesses of liberalism.
Completing this grim picture was the fact that, in the monochromatic world of Gardner Bond and his allies, Kerry Kilcannon was the leading bête noire, an illegitimate President who must, at all costs, be driven from power. That Kilcannon then would be succeeded by a Republican, like Frank Fasano, would serve Bond's interests as well. Only a Republican President could elevate Bond to the Court of Appeals and, with great good fortune, to the Supreme Court itself.
In his mind's eye, Sarah thought, Gardner Bond was halfway there. Dressed in a blue pin-striped suit, Bond sat stiffly at the end of his conference table, looking—with his gold-rimmed glasses, closely trimmed greying hair and mustache, and white breast pocket handkerchief—like an oil portrait of himself. To Bond's right, sitting with Harrison Fancher, John Nolan appeared comfortably self-satisfied. Bond and Nolan were members of the same political party and the same private clubs, and for Nolan the moment must be redolent of wing chairs and cigars, black waiters in white jackets gliding with silver drink trays amidst cossetted white males. Lenihan and Sarah did not belong.
Still, Sarah thought, Nolan's removal petition was, transparently, nothing more than a legal prank. She and an associate from Lenihan's firm had spent all night researching the law and drafting a reply. If anything, the purported grounds for Gardner Bond to retain the case were even more frivolous than they first appeared. Bond, in Sarah's hopeful estimate, was too smart not to know this, too prideful to abet John Nolan in quite so transparent a way.
After perfunctory nods around the table, Bond said abruptly, "I've read the defendants' brief, and plaintiff 's opposition thereto. Unless any of you have something particularly compelling to add, I'm prepared to rule."
This was plainly an invitation to silence. The three men—Nolan with a blank expression; Fancher with sharp, expectant eyes; Lenihan with folded arms—said nothing. As for Sarah, she chose to interpret the judge's brusqueness in a hopeful light: Gardner Bond had resolved to make short work of John Nolan's legal nonsense.
"According to the petition," Bond continued in his polished baritone, "the plaintiff's antitrust and public nuisance theories present unique issues under the Commerce Clause, including the fact that plaintiffs are asking a state court in California to control Lexington's alleged behavior in another state, Nevada. The petition also asserts rights under the Second Amendment to the United States Constitution.
"For these reasons, I agree that this court is the proper forum."
Sarah felt jarred, as though feeling the first tremors of an earthquake, unprepared to believe what was transpiring. "Your Honor . . ."
Bond turned to her with a closed expression. "As I recall, Ms. Dash, I asked if you had anything to say."
"I didn't," Sarah persisted in desperation. "But, with all respect, I need to address your premise." Pausing, she steadied herself. "State courts have concurrent jurisdiction over antitrust cases. State courts routinely deal with claims under the Bill of Rights. State courts are empowered to protect their citizens from actions which imperil their welfare, even if taken in another state. And the claims at the heart of this case— wrongful death and public nuisance—are uniquely matters of state law.
"We've researched this issue up, down and sideways. There's no precedent whatsoever for removal. Mr. Nolan's petition cites none."
Behind his glasses, Bond's eyes were hard. Stiffly, he said, "Then you have the right to appeal, don't you?"
Sarah's despair deepened. "A very limited one, Your Honor. But I'm asking the Court to reconsider its ruling. If Miss Costello is forced to appeal, that could build in months of delay . . ."
"Well that's your problem, isn't it? You decided to include the claims cited by Mr. Nolan—apparently for the purpose of casting a net broad enough to reel in the SSA." Bond seemed to catch himself, pausing to moderate his language. "That this case emanates from a tragedy no one doubts. Whether this suit is the proper remedy is an entirely separate question. But if it's meritorious—and I emphasize if—the nature of the forum should not matter."
The clever cynicism of this sentiment stymied Sarah. Bond was turning their tactic around on them: the judge understood full well that she and Lenihan had chosen state court for a reason, and had determined to frustrate them—precisely because, given Bond's own biases, the "nature of the forum" might indeed determine the outcome. "In any event," Bond concluded, "I'm denying your motion to remand to state court. Unless the Court of Appeals decides otherwise, this case stays with me."
Bond turned to Nolan and Fancher. "That being the case, I'm denying plaintiff's motion for a temporary restraining order. Plaintiff 's complaint raises issues too complex for such a peremptory remedy, and I find her claim of imminent harm insufficiently persuasive."
Sitting back, Bond looked from one side to the other. "I'm setting plaintiff's motion for a preliminary injunction down for hearing in ten days, and accelerating any motions to dismiss to be heard at the same time. In the meanwhile, plaintiff may conduct no discovery whatsoever. Until we determine what claims survive, if any, Miss Costello's lawyers should not consume defendants' time pursuing them.
"Is there anything else?"
"Yes, Your Honor." Abruptly, Lenihan had found his voice. "The new rules allow television in the courtroom. Because of the public interest in this matter, we ask that the hearing be televised . . ."
"Denied," Bond snapped. "Your wrongful death claims, if either survives, will be heard by a jury. Television can only taint the jury pool— which, in my estimation, has been tainted already by the tru
e combatants in this case, both here and in Washington. This is a lawsuit, not politics by other means."
Nolan, Sarah realized, had not needed to say a word.
* * *
In the courthouse cafeteria, over coffee, Sarah murmured, "We're stuck."
"Stuck? We're fucked." Lenihan glowered at his coffee. "That reactionary sonofabitch will use your injunctive relief claim to screw up our discovery.
" 'Want this fast-tracked?' he'll say. 'I'll fast-track it up your ass.' It's a license for Nolan and Fancher to jerk us around—withholding evidence, forcing us to take depositions without documents. And that's only if Bond doesn't decide to throw us out of court ten days from now."
Glumly, Sarah nodded. "We've got no way to get rid of him. Bond's well aware that we can't appeal until after trial. Unless we file an extraordinary writ, or we ask him to certify it for appeal himself . . ."
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