by Randy Singer
Dismissing the lawsuit would not be as easy as Garrison had thought.
He decided to have a law clerk do some additional research over the weekend. Even in the absence of a federal statute, he could probably dismiss the case on the theory that a manufacturer couldn’t be held accountable for the criminal acts of a third party who was not acting as its agent.
On Monday, Garrison rushed through his morning docket, ate a quick lunch, and spent the afternoon digging into the case law the clerk had provided. Unfortunately, the law was murky. His gut told him to dismiss the case, but his head cautioned that he might get reversed. A seat on the Virginia Supreme Court was a long shot for any judge; getting reversed on this case would end all hope.
The rules didn’t allow cases to be dismissed at the pleadings stage unless there was no possible way the plaintiff could win even if everything he claimed in the lawsuit was true. Maybe Garrison should wait until further down the road, after the plaintiff produced his evidence at trial, and dismiss the case then. But if he did that, he would have to endure a wave of criticism in the meantime from the very party that had placed him in office.
By Monday evening, the news was out that the case had been assigned to him. Tuesday morning’s paper carried a feature story on Garrison, complete with quotes from local lions of the bar who called the judge “fair” and “evenhanded” and “exacting.”
A highly regarded big-firm lawyer named Mack Strobel summed it up best: “He’s no Lance Ito.”
Garrison shut his office door and read the article several times. There were a few sentences he might have written differently, but for the most part, the reporter got it right. Garrison came across as a no-nonsense judge in control of his courtroom.
He folded the paper and placed it carefully in his briefcase. He couldn’t use the office copier to make copies—someone might notice. He would stop at a Kinkos on the way home. The newspaper would yellow over time but the copies would maintain their color.
This wasn’t just another news story. He sensed that years down the road, in the scrapbook of his life, this story would take on pivotal importance. If he played his cards right, it could be his ticket to the Virginia Supreme Court.
And who deserved it more?
Part IV: Pretrial
29
On Friday, January 30, Jason picked up Case McAllister at the airport and headed to Virginia Beach Circuit Court for an 11:00 a.m. hearing. They had agreed that Jason would introduce Case, move for his admission to the Virginia Bar pro hac vice—for this case only—and Case would argue the motion. If the case ended up going to trial, Jason and Case would be co-counsel, with Jason taking the lead. But Case wanted to argue this first motion, and Case was paying the bills. Enough said.
On the way to the courthouse, Jason expected to talk strategy, but Case was more interested in talking football. He asked about Jason’s dad as well, and Jason gave him the CliffsNotes version of Christmas. His father took him out shooting, Jason said. A few days later, he’d picked up the MD-45 Jason had ordered. The father-son fights, of course, were none of Case McAllister’s business. Jason quickly changed the subject.
“When do you think I’ll be able to pick up my special order?” Jason asked, referring to his customized MD-45.
“Not long,” Case replied. “We were backed up for Christmas and haven’t caught up yet. Prototypes can take a while to produce.”
* * *
The Virginia Beach courthouse was a mammoth fortress attached to the city jail by an underground tunnel and located on the edge of a sprawling municipal complex composed of matching colonial-style redbrick buildings. Years ago, when the city complex had sprung to life in the southern, agrarian part of the city, it had been surrounded by cornfields. Now it was surrounded by housing developments, office buildings, and commercial establishments. Trees had been turned into asphalt parking lots, wildlife replaced by convenience stores and fast-food restaurants.
As they approached the building, Jason was surprised to see a small band of protestors wandering around, carrying signs, allowing themselves to be videotaped by the half-dozen television cameras. Jason knew this was a high-profile case, but all this attention at a Motion to Dismiss hearing seemed a little unusual.
At least the hardy band of protestors, who were braving temperatures in the thirties and a biting wind, appeared to be on his side. Two signs in particular caught his attention. We were meant to be armed—the Lord gave us a trigger finger. And another, neatly printed in large black letters for the TV cameras: God created men; MD Firearms made them equal.
Jason and Case walked past the protestors and cameras, their eyes straight ahead. As they were climbing the steps, Case taking his time because of the bum knee, Jason could have sworn he heard a protestor mumble something meant only for Case McAllister’s ears. It sounded like “Get ’em, Case,” though Case didn’t even acknowledge the man.
Case checked his sidearm at the courthouse metal detector like a real cowboy and exchanged small talk with the deputies. The two lawyers rode the escalators to the third floor and followed the signs toward Courtroom 8. When they reached the hallway outside the courtroom, Jason encountered his second surprise of the morning.
The place was crawling with people. They were pressing forward, trying to get a look inside past three beefy deputies who stood in the open doorway and formed a human blockade. Jason and Case elbowed their way through the crowd, and this time there was no mistaking it. Several folks said hello to Case, shook his hand, or wished him luck.
“You know these folks?” Jason asked.
“Kindred spirits.”
Case and Jason showed their bar cards to the deputies and were allowed into the courtroom. There were only a dozen or so wooden benches in the spectator section, but every seat was filled. A television camera—the “pool” camera that would relay the feed to local affiliates—was set up along one wall. The other walls were lined with people standing, surely a violation of some fire code.
The crowd was overwhelmingly white, overwhelming male, and overwhelming middle-aged. It didn’t take a genius to figure out that Case or some other person at MD Firearms had called the local gun enthusiasts and told them to rally the troops. Maybe he was trying to send a message to the judge. Maybe he was trying to influence the jury pool.
Whatever the reason, this was a far cry from the secluded trials Jason had cut his teeth on at Justice Inc.
* * *
Muscling her way through the crowd, Kelly Starling thought about what an obvious and stupid ploy this was. A few hundred gun nuts, stripped of their weapons at the metal detector, were not going to intimidate her. Even Judge Garrison, a hard-core conservative and a bad draw for Kelly’s case, would probably be offended by this stunt—as if he might be swayed by pressure from the crowd.
Blake Crawford and a few friends and family members were already inside the courtroom and seemed a little shaken by all the attention. Nobody had treated them rudely, Blake said, but Kelly could see concern in his eyes. He probably hadn’t anticipated a crowd that would be so overwhelmingly against a grieving widower.
There was something else in Blake’s expression that fed Kelly’s fervor. It was the dazed look of a client who was trying to make sense out of tragedy, a threadbare hope that the justice system could bring good out of a horrendous evil. At times like this, clients would irrationally pin their hopes for recovery on the outcome of a civil case: “Maybe I can keep others from suffering like this. Maybe my wife’s death won’t be in vain.”
To balance her client’s tentativeness, Kelly put her own confidence on overdrive, asking the deputies to clear out a few seats in the front row behind Kelly’s counsel table so Blake’s relatives and friends could have a place to sit. That maneuver earned her the barely muted hostility of the crowd, especially since she did it over her client’s objection.
“We can stand next to the wall,” one of Blake’s brothers offered.
“Don’t be ridiculous,” Kelly said, l
oud enough for the first few rows to hear. “They’ve packed the entire courtroom. We’re entitled to one lousy row.”
When Jason Noble and Case McAllister came walking down the aisle, Kelly sized them up, positioning herself so it looked like she was talking to her client. McAllister looked old, weathered, and confident, walking with a slight limp. His thin, rounded shoulders revealed his age, but his eyes were sharp, and he had a sly half smile on his face, as if surveying a masterpiece he had just painted. Jason Noble was young and decent looking, in a carefree surfer sort of way. He had penetrating green eyes and dark shaggy hair. He looked like maybe he had just left a frat party at the University of Georgia, the yin to Case McAllister’s yang.
Kelly made a note—Jason would probably do okay with young female jurors. But other than a kind of roguish charm, she couldn’t figure out why MD Firearms might have chosen him to help on the case. He was only two years out of law school—nearly five years younger than she. And Kelly herself was relatively young and inexperienced to be trying a case of such magnitude. Jason, she concluded, was probably just there to carry Case McAllister’s briefcase.
She approached the defendant’s counsel table and extended her hand.
“Kelly Starling,” she said.
Jason’s grip was firm, but his hand was cold and moist. Nerves.
“Jason Noble,” he said.
He turned and motioned toward Case McAllister, who had just settled into his seat. “This is my co-counsel, Case McAllister.”
Kelly took a step toward the man, expecting him to rise and shake her hand. Instead, he looked up at her disdainfully, gave her a curt nod, and turned back to his papers.
“Nice to meet you, too,” Kelly said.
She returned to her own counsel table, blood pounding in her temples. The man was rude, but she wouldn’t let it throw her off focus.
They could bring a big crowd and they could play mind games, but Kelly wasn’t about to back down. McAllister might have experience, a sympathetic judge, and a federal law on his side, but Kelly had a grieving widower, a horrific shooting, and the mainstream media in her corner.
And she also had one other thing. Her own little secret weapon. The reason she was supremely confident about today’s hearing.
Kelly had a lawyer’s holy writ—legal precedent. A case from this very same court. Not a ruling from Judge Garrison but from one of his respected colleagues from more than a decade ago. It was, to use a bad analogy, her silver bullet.
Farley v. Guns Unlimited. Let’s see how the great Case McAllister deals with that.
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.
31
During the break, Case McAllister handed his copy of Farley v. Guns Unlimited to Jason. “Did you know about this?”
Jason shook his head.
It was only a question, asked in a civil tone without any inflections, but Jason knew what Case was really saying. You’re local counsel. We’re paying you a lot of money to know about cases just like this one—cases that are part of the local folklore but don’t show up in the law books or in electronic databases like Westlaw.