"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."
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"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 prese
ntly 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.
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