Balance of Power

    No discussion, Sarah thought bitterly. In a clipped, relentless cadence, Bond continued, "The next matter before the Court is defendants' motions to dismiss plaintiff's wrongful death, antitrust and public nuisance claims. We will take them each in turn, by defendant." Facing Nolan, he concluded, "Mr. Nolan, you have ten minutes to argue for the dismissal of Mary Costello's cause of action against Lexington Arms for the alleged wrongful deaths of her mother, sister and niece."

    With that, Nolan stepped briskly to the podium. "Let me begin," he told Judge Bond, "by acknowledging two principles.

    "First, on a motion to dismiss, this Court must assume that the facts alleged by Mary Costello are true. Second, if the facts alleged—even if true—do not state a cause of action under California law, which this Court must still apply, it must dismiss Miss Costello's claims for wrongful death."

    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 individual: 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.