Authors: RANDY SINGER
Farley v. Guns Unlimited
. Let’s see how the great Case McAllister deals with that.
After being granted
pro hac vice
status, Case McAllister rambled on for nearly half an hour about why Judge Garrison should dismiss the case. Kelly could hear the murmurs of agreement coming from the cheap seats.
McAllister’s primary argument was that manufacturers should not, as a matter of law and policy, be held liable for misuse of their products. He went through an illustrative list of products. Knives, of course. And what about cars? If somebody drives a car into a busy shopping center, should the manufacturer be liable? Then there was fertilizer. Nobody had sued fertilizer companies after Timothy McVeigh used a fertilizer bomb in Oklahoma City.
What about cigarettes?
Kelly wanted to ask. But it wasn’t her turn yet.
McAllister then turned to the Protection of Lawful Commerce in Arms Act—a law he claimed was designed to prevent exactly these types of frivolous lawsuits. He explained the rationale, quoting extensively from the legislation itself. He spoke at a deliberate pace, with just a twinge of a Southern drawl: “Civil liability actions against gun manufacturers are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.”
He paused and glanced up at the judge, then continued reading. “The possible sustaining of these actions by a maverick judicial officer would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States.”
Judge Garrison’s face seemed to redden a little at the reference to a maverick judicial officer. “Isn’t there an exception for illegal acts by a dealer or manufacturer?” Garrison asked. “Including the types of straw purchase transactions alleged to have occurred in this case?”
It was a good question, Kelly thought, the first indication that maybe Garrison wasn’t totally drinking the Kool-Aid.
But Case McAllister just shrugged it off. “The exact language of the act says that a manufacturer or seller must aid or abet or conspire with another person to sell a gun to somebody who does not qualify. Here, my client didn’t sell the gun—the dealer did. And my client certainly didn’t aid or abet that sale. We didn’t even know about it until after the shooting.”
“Why isn’t that a jury question?” Garrison countered. “Questions of fact, like whether your client’s conduct was aiding or abetting, should be decided by a jury, not a judge.”
McAllister didn’t hesitate. “Because for hundreds of years criminal acts of third parties have cut off the liability for a seller or manufacturer. The only reason we’re here, with all due respect to Mr. Crawford, is because my client is the only entity associated with this gun that isn’t bankrupt.”
McAllister paused and swallowed, as if he didn’t like making this next part of his argument. “Larry Jamison shot Rachel Crawford. Jarrod Beeson bought the gun illegally. Peninsula Arms sold the gun illegally. My client violated no laws, yet we’re the only one who gets sued.
“We’re here because Mr. Crawford believes MD Firearms has deep pockets. Mr. Crawford wants somebody to pay for what happened to his wife, even if that person or entity acted entirely properly, selling guns legally to a federally licensed firearm dealer. Unfortunately for Mr. Crawford, my client is a gun manufacturer, not an insurance company. No reasonable judge would let this case go to the jury.”
McAllister packed up his papers and limped away from the podium. Garrison scribbled a few things on his legal pad, his red ears reflecting his displeasure at the tone McAllister had adopted.
“Ms. Starling,” Garrison eventually said. “Your response?”
Kelly stood and walked confidently to the podium. “On December 16, 1988, Nicholas Elliot, a sixteen-year-old kid, walked into his Virginia Beach high school with a semi-automatic assault weapon. He executed one teacher and wounded another. He had an entire class of students huddled into the back corner of a trailer, praying for safety, as he prepared to fire on them as well. The gun jammed, the teacher tackled Elliot, and the lives of all those students were saved.”
Kelly found her stride and picked up confidence with every word. She was right about the law. She had justice on her side as well. She just needed to make sure Garrison understood that.
“It was later discovered that a notorious gun store in Isle of Wight County named Guns Unlimited had allowed Nicholas Elliot to buy the gun through an illegal straw purchase, using his uncle as the paper purchaser of the gun, even though store employees should have known that Elliot was the real purchaser. The family of the slain teacher sued the gun store, and Judge John Moore faced a Motion to Dismiss very much like this one.”
Kelly had done her homework. Judge Moore had retired, but his opinions still held weight. The opinion itself was never recorded in the law books—at that time, only appellate court decisions were recorded. But the Handgun Violence Coalition had monitored the case and provided Kelly with the opinion.
Kelly handed a copy to Case McAllister and another copy to the judge.
“Judge Moore allowed that case to go to the jury against the gun dealer. His reasoning was based on common sense. Congress prohibits certain persons, like kids and felons, from purchasing firearms. When a dealer engages in an illegal straw sale to one of these prohibited persons, and then the purchaser commits a criminal act, the dealer can’t try to hide behind the doctrine of intervening cause as if they couldn’t anticipate those criminal actions. I mean, why does Congress prohibit sales of pistols to kids and guns to felons in the first place? Because the danger is obvious, not something unanticipated.”
Kelly paused for a moment, allowing Garrison to read a few lines of the opinion.
He looked up. “Continue,” he said.
“Mr. McAllister says that no reasonable judge would make such a ruling. I didn’t have the privilege of appearing in front of Judge Moore. But from everything I’ve heard, he was the epitome of reasonableness.”
Judge Garrison took off his reading glasses and studied the back wall for a moment.
He turned back to Kelly. “Anything else, Counsel?”
The question was judge-speak. It meant shut up and sit down while you’re still ahead.
“Not at this time, Your Honor.”
“Then this court stands adjourned for a brief recess.”
“All rise,” called the bailiff. The silence held until Judge Garrison disappeared out the door behind the bench. His exit was followed by a buzz of excitement and frustrated murmuring, as if the home team had just thrown an interception.
At Kelly’s table, Blake worked hard to contain his elation. “That was brilliant,” he said, his voice an excited whisper.
“We’ll see,” Kelly said, because that’s what sophisticated trial lawyers were supposed to say. But in her heart, she was agreeing with Blake.
That
was
brilliant.
During the break, Case McAllister handed his copy of
Farley v. Guns Unlimited
to Jason. “Did you know about this?”
Jason shook his head.
It was only a question, asked in a civil tone without any inflections, but Jason knew what Case was really saying.
You’re local counsel. We’re paying you a lot of money to know about cases just like this one—cases that are part of the local folklore but don’t show up in the law books or in electronic databases like Westlaw.
Jason quickly glanced through the opinion. In the
Farley
case, the manufacturer had actually been dismissed, and the case had proceeded only against the dealer. But it would be useless to argue that distinction. The manufacturer in the
Farley
case had not known about the troubled history of its dealer, and therefore the plaintiff had proceeded against the manufacturer on other grounds. But here, Kelly Starling had been clever enough to use the exact language of the exception in the Protection of Lawful Commerce in Arms Act, alleging that MD Firearms had “aided, abetted, and conspired” with Peninsula Arms to sell firearms illegally. The statute got Kelly in the front door. The
Farley
case prevented MD Firearms from walking out the back door based on an unforeseeable intervening cause.
In short, they were toast.
“We knew this hearing was a long shot,” McAllister said. “I just don’t like surprises.”
“Yes, sir,” Jason said.
Garrison took the bench scowling. He gaveled the court to order, and a hush engulfed the courtroom. Jason knew that a best-case scenario would be the court taking the case under advisement. Worst case would be an immediate ruling against MD Firearms, allowing the case to proceed.
Garrison turned his attention first to Blake Crawford. “What I’m about to say is meant as no disrespect, Mr. Crawford,” he said. Jason’s heart began to beat a little faster. Could it be?
“I know you’ve suffered a terrible loss and undoubtedly feel like someone needs to be held accountable for that loss.”
Jason glanced at Crawford, who looked stricken. Jason didn’t want to get his hopes up… but it sounded like Judge Garrison was winding up to dismiss the case.
“While I understand those emotions and want to personally express my condolences at what happened, in my view the person responsible for your wife’s death is Larry Jamison. At most, you might also be able to lay some blame at the feet of the store that illegally sold him the weapon—Peninsula Arms.”
Jason couldn’t believe he was hearing this. Not in a million years had he thought a judge would dismiss the case this early. It was almost too good to be true.
“Nevertheless… ,” Garrison said, pausing.
The word was like a sledgehammer to Jason’s midsection.
“My personal view is not what matters. When I took the bench, I took an oath to follow the law.”
The judge sighed and looked out over the courtroom. “The law in this case leaves me no choice. There is an exception in the federal statute protecting manufacturers, and that exception leaves room for suits against manufacturers who aid or abet illegal sales.
“In addition, I’m duty-bound to follow the precedents of this court, especially a case by someone as respected as Judge Moore.”
Garrison turned his attention to Jason and Case. “The motion is overruled. I’m not saying this case will necessarily go to the jury. But for now, the plaintiff has alleged enough to state a cause of action.”
Jason could hear some murmuring behind him, and the judge banged his gavel. Garrison was trying to play the role of ally to the gun groups even as he ruled against them. Nobody in the courtroom was buying it.
“Ms. Starling,” the judge said, “please draft an order reflecting the ruling. Anything else?”
“No, Your Honor,” Kelly Starling said, half-standing as she addressed the court.
Garrison looked at Jason and Case. Case just sat there, waiting long enough that Jason considered standing and responding himself.
When Case finally spoke, it seemed like he was talking to himself. “There are going to be a lot of dealers out of business.”
“What’s that?” Garrison said, clearly perturbed.
Case stood. “If we can be accused of aiding and abetting illegal sales on facts like these, we’ll have to stop selling guns to a lot of dealers.”
Tension lined every wrinkle on Garrison’s face. He wasn’t used to lawyers talking back.
“Speak to Congress about that,” he said. “You’re wasting your breath in here.”
“That last statement is something we can agree on,” Case said.
Judge Garrison seemed stunned by the comment. Livid. But he apparently thought twice before jumping down Case’s throat. His Republican friends would already be upset that Garrison had denied the Motion to Dismiss. No sense making things worse.
“Court adjourned,” Garrison said.
Before she left court, Kelly had one more job to do. She pulled a deposition notice out of her briefcase and checked it one last time. Normally, lawyers called the other side and mutually agreed on dates to take sworn pretrial testimony of key witnesses. But sometimes, when Kelly wanted to make a statement, she sent out deposition notices without even checking. This typically ignited the other side’s fuse, resulting in a big argument.
Eventually a date for the deposition would be established by mutual consent.
But the message would be sent.
This particular notice was for Melissa Davids. Ten o’clock. Kelly’s office in Washington, D.C. She had scheduled it for February 9, just a week and a half away. The defense lawyers would undoubtedly object to the time and place, and Kelly would agree to reschedule—so long as Davids was the first witness to be deposed.
She walked to the table where Case McAllister and Jason Noble were packing their briefcases. She placed the deposition notice in front of Case.
“It’s a notice for Melissa Davids’s deposition,” Kelly said. “I’m willing to be flexible on time and place as long as she goes first.”
“That’s very considerate of you,” McAllister said. He didn’t look at Kelly. Nor did he pick up the document.
She stood there for a second, then returned to her client. “Let’s go,” she said, packing her stuff. “Look straight ahead. Don’t respond to anybody.”
Blake nodded and put on his game face.
As they turned to leave, Kelly noticed that Case McAllister and Jason Noble had already departed. Her deposition notice was still sitting there on the defense counsel table, untouched.
“Jerks,” she said under her breath.
Kelly Starling and Blake Crawford emerged from the courthouse side by side, family members and friends trailing in their wake. The protestors gave the entourage room to pass and refrained from yelling slogans in their face. They were on their best behavior.