"It's an arms race," Lenihan interposed, "as the President suggested. The message is that the world is a scary place, populated by people who are armed and dangerous, so you'd better be better armed than they are."
Sarah nodded. "That's how the SSA pushes these state laws creating an automatic right to carry a concealed handgun. The idea is that you need a hidden gun to defend yourself against someone else's hidden gun." Abruptly, she turned to Mary. "I'm sorry," she apologized. "Give two trial lawyers an audience, and we'll talk for hours. It occurs to me that you may actually have some questions."
Plainly nettled at being cut off, Lenihan, too, faced Mary. "There's one more aspect, Mary, that I think we should cover. I call it 'entertainment marketing.'
"Lexington creates video games where kids can fire a 'virtual' P-2. They also place their guns in movies and TV shows, often as the criminals' gun of choice. The idea is to create a whole new wave of technofreaks—from kids to criminals to survivalists—who've just got to have the newest, lightest, fastest killing machine.
"That's what Bowden responded to. I'm confident that I can prove that the P-2 has no legitimate sporting use; that its sole function is to kill a lot of people quickly; that it contains features that are especially attractive to mass murderers and other criminals; that it's one of the weapons most frequently used in crimes; and that the Eagle's Claw is designed not to stop a would-be burglar or rapist, but to make death a near certainty." Now his own voice softened. "The deaths of your mother, sister and niece, for which Lexington should pay and pay and pay."
Mary glanced at Sarah, as though caught between competing forces. "How can we sue them," she asked, "if selling these guns is legal?"
"That's the crux of their argument," Sarah agreed. "But another argument is that the P-2 worked exactly the way it's supposed to. If it's not defective—unlike a faulty tire or an SUV that flips—how can they be sued?
"You can't sue them, Lexington will say, for murders that some demented stranger committed with a nondefective legal product. Even if Lexington knew to a certainty that someone like Bowden would choose a P-2 to commit murder." Sarah's tone became etched with disgust. "Which Lexington did, by the way. Remember the white supremacist who killed three kids at a Jewish day-care center in Los Angeles? He used a Lexington P-2."
"So what's your theory?" Lenihan asked sharply. "That Lexington could have imagined the illegal use of a legal product doesn't get Mary her verdict. Or else Ford would be liable if Bowden had killed them with your hypothetical SUV."
"Tell us your theory," Sarah countered. "If I have anything to add, I will."
Quickly refocusing on Mary, Lenihan spoke with the paternal air of a doctor prescribing medication. "Under California law, Mary, we need to prove that Lexington caused Bowden to act. In essence, that it persuaded him that the P-2 was the best available weapon for killing all of you . . ."
"How?" Mary asked in bewilderment. "John's dead."
"True. But we do know that he flew to Las Vegas on the day of the gun show. And after he died, the police found the SSA magazine in his hotel room, containing the ads the President mentioned in his speech— calling the P-2 an 'endangered species, banned in California.' " Lenihan permitted himself a smile. "There's an old saying that if you go to bed without snow on the ground, and the next morning awaken to snow, the inescapable conclusion is that it snowed."
"Snow aside," Sarah remarked, "it would be far better if we could find the seller. Or, at least, someone Bowden talked to about buying the P-2.
"There's an unfortunate decision called Merrill versus Navigar. That case involved an office massacre in San Francisco where the murderer also killed himself. The survivors sued the gun manufacturer on much the same grounds—inflammatory advertising. But the California Supreme Court ruled for the gun company, saying it was protected by a peculiar state statute shielding gun companies from product liability lawsuits— partly because there was no direct evidence that the murderer ever saw the ads.
"The California legislature promptly repealed the statute. But Lexington still can argue that there are a thousand other places Bowden could have bought the gun—including the black market . . ."
"Of course," Lenihan told Mary, "if Lexington had required a background check at gun shows, Bowden couldn't have bought it there. Instead, they virtually invited him to Las Vegas—not only to acquire a P-2 but bullets designed, and I quote, to inflict a 'massive wound channel.' When we begin gathering documents and deposing Lexington witnesses, we'll explore what research they did to authenticate that claim. I intend to show the jury that they believed every word."
Silent, Mary stared bleakly at some middle distance of the mind—in remembered horror, Sarah supposed, perhaps combined with disbelief that Lexington would choose to profit in such a way. Turning to Sarah, Lenihan asked, "Speaking of juries, you tried the Tierney case before a federal judge. No disrespect intended, Sarah, but I have to ask how many jury cases you've tried."
Surprised, Sarah tried to appear unruffled. "Three."
"Any plaintiffs' cases?"
"None at all."
"Have you at least tried a personal injury case, or a wrongful death action?"
"I haven't. As you already know."
"That's just as well," Lenihan responded with an amiable smile. "God knows your mentors in your former law firm lost enough of them. To me."
Mary shifted in her chair. "If you're trying to embarrass me," Sarah said in even tones, "at least address the issues. To even get this to a jury, you'll have to prepare for the argument that any suit is barred by the Second Amendment."
Lenihan, Sarah sensed, was eyeing her with increased caution. "The Second Amendment defense has never flown," he parried. "Not in a civil case."
"Not in California," Sarah agreed. "At least not yet." Facing Mary, Sarah explained, "Until recently there's been an unbroken line of cases, including a Supreme Court case, which suggested that the Second Amendment does not protect an individual's right to own a gun—as opposed to a collective right which belongs to governmental bodies like the police department, or the National Guard."
Mary nodded. "That makes sense to me."
"And to me. But the SSA disagrees. They claim that the Constitution enshrined the right of armed insurrection by individuals against the government the men who drafted it created, replacing votes with bullets. They also claim that this right cannot be infringed for any reason—that leading the Western world in homicides is the price we pay for this precious 'freedom.'
"Until a few years ago, no one but gun fanatics took that seriously. Then the SSA began financing a wave of 'scholarship': one law review article after another which argued that Madison, Jefferson and the rest meant each of us to have the absolute right to own any weapon we want—including weapons that the Founding Fathers never dreamed of. Like the Lexington P-2 and Eagle's Claw bullets . . ."