weapons and traced to crimes?”
“Eight hundred thirty-three,” Davids said.
“And that didn’t concern you?”
Davids scoffed. “We redesigned the gun so this couldn’t happen. Is that so hard to understand?”
Kelly felt her face redden, the anger rising to the surface. “Just answer the question. Did this fact concern you?”
“Criminals sometimes modify our guns. Criminals sometimes use them to kill innocent people. Every time somebody dies, that concerns me. However, my hope is that sometime before this deposition is over, you might actually want to talk about whether it’s fair to try and hold us accountable for everything these criminals do.”
43
For three hours, Kelly Starling hammered away at the witness while Jason looked on, occasionally lodging an objection. At 1:30 he insisted they break for lunch. Forty-five minutes later, they were back at it, with Kelly focusing on MD Firearms’s manufacture of silencers.
“Did Larry Jamison use a silencer?” Jason asked. “I must have missed that.”
Kelly shot him a look. “You’ll have your chance to ask questions when I’m done,” she said.
“Maybe mine will be relevant,” Jason responded, though they both knew Jason would have no questions. You ask questions of your own witness at trial, not at depositions. Why give the other side a roadmap of where you’re going?
If nothing else, Jason’s comment made Melissa Davids smile.
Kelly, on the other hand, did not seem amused. She ratcheted up her intensity, and the questions flew faster.
Davids refused to use the term silencer, calling it a Hollywood misnomer, but admitted that MD Firearms sold the outer tubes for “sound suppressors” while other Georgia manufacturers sold the matching internal parts. That way, each company avoided the federal regulations requiring registration by purchasers of complete suppressors. The companies advertised together and sometimes exhibited at the same gun shows with the result that thousands of unregistered sound suppressors were on the street.
The ATF took the companies to court over the suppressor issue, Davids conceded. This time the judge ruled against the ATF. Kelly pulled out a copy of a letter that one of the CEOs had written to the editor of an Atlanta paper the day after an incendiary article about the court’s ruling. The letter compared the strong-arm tactics of the ATF to the tactics of Hitler and Stalin. When Davids said she agreed with those sentiments, Kelly marked the letter as an exhibit.
It was nearly 3 p.m. when Kelly finally started asking questions about Peninsula Arms.
“Do you know what an illegal straw sale is?” Kelly asked.
“Of course.”
“Explain it to me.”
Davids looked at Jason. “Is it my job to explain the law to her?”
“Not really,” Jason said. He was still working hard at acting disinterested. “But maybe if you do, we can get out of here faster.”
Davids sighed. “A straw purchase transaction is when an eligible purchaser of a firearm buys a gun on behalf of another person who is an ineligible purchaser of a firearm. Let’s say, for example, that you’ve been involuntarily committed to a mental institution. Jason here couldn’t buy a firearm and fill out the paperwork on your behalf and give that firearm to you.”
“And if a store knowingly participates in such a sale, they’ve violated federal law, is that right?”
“Of course.”
“Do you monitor your dealers to make sure they don’t engage in illegal straw sales?”
It was a loaded question. For the first time, Davids seemed to hesitate before answering. “That’s not our job.”
“Do you train your dealers on how to avoid straw sales?”
“That’s not our job either.”
“If it came to your attention that one of your dealers was engaging in hundreds of illegal straw sales and that the guns were ending up in the hands of street criminals, would you cut that dealer off from your products?”
They were on thin ice now. “That’s a hypothetical,” Jason said. “I’m instructing the witness not to answer.”
Kelly’s brown eyes flashed. “Do I need to call the judge and get a ruling?”
Jason motioned to the phone. “Help yourself.”
He knew she wouldn’t do it. Judges hated refereeing deposition disputes. They would always chide both lawyers for acting like a couple of kids fighting on the playground. Plus, Jason was pretty sure he would win this objection-the question called for speculation, not facts.
Kelly turned back to the witness. “You’re aware that the cities of New York, Washington, Baltimore, and Philadelphia have filed lawsuits against rogue gun dealers based on guns they sold that were later traced to crimes on the streets of those cities?”
“Yeah, I’m aware. You want my opinion on those suits?”
“That won’t be necessary.”
“Didn’t think so.”
“You’re also aware that undercover agents from those cities conducted a number of obvious straw purchases in several stores, including Peninsula Arms, and even captured some of those transactions on video-right?”
Davids snorted. “In my opinion, the ATF should have prosecuted those undercover agents for illegally buying guns and the stores for illegally selling them.”
“Were you aware that Peninsula Arms received at least three separate citations from the ATF for illegal straw sales?”
“I might have been aware of that.”
Jason tensed, fighting the instinct to object in order to keep his client out of trouble. Objections only drew attention to the answer and signaled to the other lawyer that they were on to something.
But Jason knew that Davids’s last answer-that she “might” have been aware of the ATF citations-was skating dangerously close to perjury. While reviewing his client’s business records to determine which ones to produce, he had looked through MD Firearms’s e-mails, electronic documents, and files. Most of the files contained bland records about the design of the MD-9 or sales documents or contracts with various gun distributors and dealers. Jason had barely been able to stay awake as he reviewed the stuff. But one three-page memo from Case McAllister to Melissa Davids had caught his attention. It was entitled “Sales to Dealers Sued by Northeast Cities.”
The document was the proverbial “smoking gun,” written nearly a year before the Crawford shooting and addressing the issue of whether MD Firearms should stop supplying the rogue dealers who had been sued by the city governments.
In the memo, Case had analyzed precisely how many MD Firearms guns had been traced to crimes in the cities involved in the lawsuits and what dealers had sold the guns. His analysis showed that four dealers, including Peninsula Arms, were responsible for nearly half the guns used in those crimes. Case had analyzed the profits made from sales to those particular dealers and the estimated costs of defending a lawsuit by the dealers if MD Firearms tried to discontinue sales to them. He also cautioned that taking steps to discontinue sales to some dealers would serve as an admission by MD Firearms that they had a duty to monitor all dealers and could therefore lead to lawsuits whenever their guns were used in crimes.
His conclusion: “A careful cost-benefit analysis suggests we should continue selling guns to all licensed and qualified dealers.”
Melissa Davids had hand-scratched her response across the top of the memo: “No kidding. Whatever happened to free enterprise?”
It was the kind of memo that Kelly Starling would love to wave around during her closing argument, arguing that MD Firearms cared only about profits, not the lives of innocent victims like Rachel Crawford. Jason intended to
