Hands flat on the podium, Nolan paused, his voice resonant, his gaze up at Bond respectful but serene. "This case," he continued, "began with a monstrous rampage in which John Bowden wounded the survivors beyond all hope of recompense. In our hearts, we hope for some way of healing what so many of us found very close to unbearable. But the law acknowledges what reason tells us—that the terrible scene at San Francisco International was the work of a single demented mind."
It was an elegant beginning, Sarah thought, Nolan at his most statesmanlike. Stone-faced, Lenihan began scribbling notes for his refutation.
"Reason," Nolan said abruptly, "also tells us a harsher truth: that this lawsuit is nothing more than a publicity stunt—brought contrary to settled law—in the service of power politics . . ."
"Mr. Nolan," Bond admonished in his patrician manner, "leave the 'power politics' to politicians. It's the 'contrary to settled law' which is the business of this Court."
"Of course, Your Honor." Unfazed, Nolan continued as though the mild rebuke had been instructive, even agreeable. "Plaintiff asks this Court to hold the maker of a legal firearm liable for its criminal misuse by a murderer it never heard of, and whose actions were beyond its control. That, we submit, is not—and cannot be—the law.
"On this point, Congress has spoken. Guns are a legal product. The sale of a Patriot-2 and Eagle's Claw bullets in Nevada—if that's what happened here—is perfectly legal. And even if John Bowden purchased his P-2 at a gun show—a guess which we must, for the moment, accept as truth—not even plaintiff's highly creative counsel can allege that Lexington had anything to do with that.
"Your Honor, we don't punish the maker of Ferraris because some driver breaks the speed limit. We don't sue the distiller of a single-malt Scotch because the driver was inebriated. California law recognizes that responsibility resides in the individuaclass="underline" in the reckless driver, the alcoholic—and in John Bowden, the murderer . . ."
"And your authority?" Bond inquired.
The hearing had begun to resemble a minuet, Sarah observed, in which both partners, Bond and Nolan, executed their steps with precision. "Richards versus Stanley," Nolan responded promptly, "held that the owner of a stolen car is not liable for the reckless driving of a car thief, even though he carelessly left the keys in the ignition. That core principle is still the case."
Bond held up a hand. "The difference, Mr. Nolan, is this so-called 'inflammatory advertising.' According to plaintiff 's complaint, Lexington's ad in the SSA magazine was a positive incentive to purchase and misuse by the demented."
"Damn right," Lenihan murmured. At the podium, Nolan gathered himself. "All that we really know, Your Honor, is that Bowden had the SSA magazine. We don't know—and I expect will never know—why or where or even when he bought it, who sold it to him or even what he was doing in Las Vegas. Without such proof, plaintiff has no case."
"That may well prove right," Bond interrupted. "And plaintiff's complaint may well be based on speculation . . ."
"Sure," Lenihan whispered to Sarah, "Bowden picked up The Defender, then flew off to play the slot machines . . ."
"But," Bond continued, after a brief, sharp glance at Lenihan, "at this point, as you conceded, this Court must accept plaintiff 's allegations that the advertisement led to Mr. Bowden's purchase. Given that, couldn't Lexington foresee that its ad copy might enhance the prospects of criminal misuse?"
Nolan spread his arms in an elegant shrug. "Certainly," he said in the same placid tone, "it may be possible for a manufacturer to foresee— or at least imagine—that at an unknown place, at an unknown time, some unknown person may perpetrate a tragedy. But foreseeability is merely one element of an action for wrongful death. The most essential element is causation—that Lexington caused this man to kill these victims.
"Lexington did not tell him, let alone cause him, to murder Mary Costello's family—any more than it caused him to abuse his wife or hate the President and First Lady for their apparent, though insufficient, acts of intervention on his wife's behalf."
This, Sarah thought, was artfuclass="underline" the first suggestion, stated as an afterthought, that Mary Costello's lawsuit was designed to expiate the Kilcannons for their own neglect. "This lawsuit," Nolan continued, "is legislation by litigation. Because the plaintiff dislikes the gun laws as written by the Congress, she asks this Court to invent some. But it is the role of this Court to interpret existing laws, not make up new ones. That job belongs to the House and Senate . . ."
And Fasano and the SSA, Sarah thought, were working overtime on that. But Bond appeared content. With a brisk nod, he told Nolan, "I understand your argument, Mr. Nolan," and then turned to Lenihan and Sarah. "Who will speak for the plaintiff?"
* * *
"A Ferrari," Robert Lenihan opened bluntly, "is not a killing machine. Nor is a bottle of Scotch. But load up a Lexington P-2 with forty Eagle's Claw bullets, and that's exactly what you have—a weapon whose only use is to shoot a lot of people quickly, at very short range, with the maximum assurance that all of them will die."
In style, Sarah thought, Lenihan could not be more different than John Nolan—staccato, impassioned, contemptuous of legal niceties. Immediately, Bond shot back, "Mr. Nolan's point is that under California law, Lexington Arms—like the makers of a Ferrari or Glenfiddich Scotch—cannot be liable if their product is not defective."
"On that point," Lenihan said with scorn, "I can't agree more with Mr. Nolan. John Bowden's P-2 was certainly not defective. It worked exactly as advertised.
"What else is the P-2 good for but killing humans? Not for hunting deer, unless the deer approaches you—after which there wouldn't be enough left of him to hang up on the wall. And the Eagle's Claw bullet? That was good for only one thing: ensuring that Marie Bowden did not outlive her family.
"That's why it was designed to become the six deadly knife points which shredded Marie's vena cava. That's why the P-2 was designed to accommodate forty such bullets. And that, Your Honor, is the manner in which Lexington chose to market them."
Already, Sarah understood why Robert Lenihan excelled with juries. But it was far from clear that Gardner Bond would let this case reach a jury. In contrast to his demeanor with Nolan, Bond scrutinized Lenihan with the clinical disdain of a pathologist examining a cancer through a microscope. "Not foreseeable?" Lenihan asked rhetorically. "What Lexington's defense comes down to is this: 'We may be marketing to murderers and criminals, but we didn't cause these murders because we didn't know this murderer by name . . .' "
"What about the Richards case?" Bond snapped.
"Irrelevant. There's no profit in leaving keys in an unlocked car. Lexington profited by marketing death to people like John Bowden . . ."
"You're not claiming," Bond persisted, "that these ads are in any way misleading?"