Balance of Power

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 naivete, 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.'