Authors: RANDY SINGER
It was complicated, Kelly had said, explaining that he had caught her between meetings. Could they schedule an appointment? Would first thing next week be soon enough?
Kelly’s next call had been to the director of the Handgun Violence Coalition, who said he had indeed referred Blake Crawford to her. The director explained that he had received a call from a big donor who suggested Kelly might be the perfect lawyer to represent Blake Crawford against the gun manufacturer. The donor had faxed a copy of the
Washington Post
article to the director, noting that both Kelly and Rachel Crawford had been active on the issue of human trafficking. “Maybe you should call Blake Crawford,” the donor had suggested, “and explain the basis for a suit against MD Firearms, referring him to Kelly Starling.”
Kelly had asked for the name of the donor.
“He wants to remain anonymous,” the director said.
After a few days of additional research, Kelly had some solid answers. The case had potential. And she would pull out all the stops to get it.
Letting Blake Crawford sit for a few minutes in conference room 12A, the crown jewel of B&W’s Washington office, would be a good start.
Nearly half of B&W’s 450 lawyers set up shop in this smoked-glass office building with the prestigious K Street address. Others worked out of equally plush addresses in Atlanta, Singapore, Paris, Bangkok, and London. Conference room 12A had seen its share of Fortune 500 CEOs and United States senators. Billion-dollar deals had closed on its forty-foot mahogany table. Bill Gates had been deposed here. Press conferences had been held here. National political campaigns announced. Even a few office affairs had been consummated here in the wee hours, the participants evidently unaware of the hidden cameras.
From 12A you could gaze out over Farragut Square, contemplate your problems while staring at the U.S. Chamber of Commerce building, or catch a glimpse of the Capitol on the horizon. Kelly met with her sex-trafficking clients on park benches and in greasy restaurants, but Blake Crawford would get the full treatment, including an extra five-minute wait so he could admire the authentic paintings and realize that Kelly was a very important and busy associate in a very successful firm.
“Sorry I’m late,” Kelly said, bursting into the conference room and shaking Blake’s hand with just the right touch of assertiveness. “Something to drink?”
“I’m fine,” he said. Blake was dressed in khaki pants, a light blue shirt, and a black suit coat. He had dark circles under his eyes and a quiet voice, the strain of the last few months showing on his face.
Kelly had admired his restraint when he appeared on TV. He had steadfastly refused to cast blame on anyone except Larry Jamison—not WDXR for having lax security; not the SWAT team for failing to intervene early enough; not the gun dealer for selling the gun illegally; not the manufacturer of the weapon. “I don’t know why this happened,” Blake Crawford had said. “But I just have to trust God that He’s got His reasons. Pointing fingers won’t make the pain go away.”
Kelly trusted God, too. But sometimes, in Kelly’s view, God needed a good lawyer.
Kelly sat across the table from Blake, suddenly feeling silly for meeting in such a large and imposing room. “Thanks for coming in,” she said. “I’m sorry for your loss.”
“Thanks.” Blake looked at Kelly for a moment and then down at the table. “I almost cancelled,” he admitted. “I still don’t know if this is the right thing to do.”
“I understand that,” Kelly said. “Let’s just take it one step at a time.”
She asked Blake some introductory questions and jotted a few notes on a legal pad so she could fill out the new client intake form. “I haven’t completed my investigation yet, but I’ve got some preliminary opinions,” Kelly said. She noticed the blank look in her potential client’s eyes—the pain of the tragedy had apparently morphed into a certain kind of numbness. She had seen the same look from her human trafficking clients when they gave up hope.
“Let’s start with the gun dealer.” Kelly opened a file she had compiled on Peninsula Arms, the shop that had sold the gun Larry Jamison used to murder Blake’s wife.
“Jamison had a felony record and was ineligible to purchase a firearm under federal law,” Kelly explained. “The gun was actually sold to a twenty-three-year-old man named Jarrod Beeson. As you know, Beeson originally said that somebody had stolen his gun and that he just didn’t bother reporting it. But the next thing you know, some guy serving time for illegal firearms possession tells the authorities that Beeson was one of the men used as an intermediary in other straw purchase transactions from this same store. The ATF agents pressure Beeson and he cracks, admitting his role as a straw purchaser.”
Blake Crawford nodded absentmindedly.
All this information had already been broadcast to the entire nation, Kelly knew. Beeson had signed a confession acknowledging his role in multiple straw purchases from Peninsula Arms. He even admitted that sometimes the clerks at Peninsula Arms would give his cell number to potential customers who couldn’t clear the background check on their own. Three weeks ago, the feds indicted the owner and a store clerk at Peninsula Arms. Last week, the store and its owner filed bankruptcy.
“This is not an isolated case.” Kelly slid a nineteen-page Excel spreadsheet across the table. It contained a long list of guns sold by Peninsula Arms that had been traced to crimes in New York City, Washington, Baltimore, and Philadelphia.
“A few years ago, several municipalities filed suit against rogue gun dealers who demonstrated a pattern of engaging in illegal transactions—selling guns to eligible purchasers acting as stand-ins for ineligible purchasers. New York City even sent undercover agents as phony shoppers to the gun stores.
“The first agent would select a gun but balk at the paperwork when it came to questions about whether he was a felon or had been involuntarily committed to a mental facility. A few hours later, that same person would come back with somebody else, point out the gun right in front of the same store clerk, and give the new agent the money to buy the gun. The clerk would have the new undercover agent fill out the paperwork and would sell the gun, then watch as that person handed the gun to the illegal purchaser. The dealers never even reported this to the ATF.”
Kelly waited a moment as Blake glanced over the chart. With the help of the Handgun Violence Coalition’s attorneys, she had distilled the statistics from each of the East Coast cities that had filed a lawsuit. “In 2006 alone, the last year for which we have stats, Peninsula Arms sold 251 firearms linked to murders or aggravated woundings in these four cities. Only one other dealer had a greater number of guns traced to crimes. Between the two of them—Brachman’s Gun Shop and Peninsula Arms—they had accounted for more than 30 percent of the guns that turned up in these cities linked to violent crime.
Kelly stopped, waiting for Blake to make eye contact. He seemed to have a little more spark in his eyes this time.
“Not one of the guns linked to Peninsula Arms was used in the crime by its original purchaser,” Kelly continued. “We’re talking about a massive number of straw purchases, Blake. Three separate citations by the ATF. And guess what the gun of choice was for one out of every four crimes?”
“The MD-9,” Blake said, his voice more sad than irate.
“The MD-9,” Kelly repeated. She said it with more feeling, as if she could somehow stiffen Blake’s backbone with an injection of her own determination.
Next, Kelly opened a folder on MD Firearms and started building her case against them. According to Kelly, the company’s CEO, a woman named Melissa Davids, knew that the MD-9 was designed for one thing—killing people. That’s how they marketed the gun. And it was working. The dull black semi-automatic was preferred by street thugs everywhere, as demonstrated by the factual evidence distilled from the cities’ lawsuits.
“The company makes nearly two hundred bucks each time it sells one,” Kelly explained. “And they sell hundreds through Peninsula Arms, even knowing that many of the guns are being peddled to convicted felons through illegal straw transactions.”
Blake nodded, the sad eyes finally showing some flint. “I’ve seen Melissa Davids on a few TV shows,” he said. “That’s one of the reasons I’m here.” He paused, and Kelly noticed his lip tremble a little. “She says she’s not worried. She says there’s a federal law protecting manufacturers from lawsuits like this one. There’s no remorse about her gun being used in this crime. It’s almost like she’s proud of it.”
The short speech made Kelly realize again how much she wanted to file this case. A crusader needed a crusade. And here was a decent man whose life had been torn apart through no fault of his own. Her heart ached for him.
“There
is
a federal law,” Kelly said. “It’s called the Protection of Lawful Commerce in Arms Act. It protects dealers and manufacturers from getting sued if a firearm operates the way it was intended and causes injury through criminal activity. But a few courts have declared it unconstitutional. Plus, there is one very important exception.”
Kelly turned to the statute and read the exact language—every word mattered. “This act does not include ‘an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product.’”
She looked up at Blake and thought maybe she detected a thin ray of hope. Family members of victims often tried to find a larger meaning in the death of a loved one. A cause. A greater good.
“I know a lawsuit won’t bring her back,” Blake said. “But maybe it will prevent someone else from going through the hell I’m going through. Maybe it will make Melissa Davids think twice about selling guns to places like Peninsula Arms or this other dealer you mentioned. I just need to know we’re not tilting at windmills.”
Kelly resisted the urge to tell him that tilting at windmills was her specialty. This case wasn’t hopeless. Other crusaders had prevailed on similar facts.
“Remember the D.C. area snipers?”
“Yeah.”
“They got their gun through a straw purchase as well. Bull’s Eye Shooter Supply ran such a shoddy operation that it couldn’t even find the paperwork for 238 guns it sold, including the Bushmaster assault rifle used by John Allen Mohammad and Lee Malvo. The victims filed suit against both Bull’s Eye and the gun manufacturer. They settled for $2.5 million.”
Blake considered this for a moment, studying his hands. When he looked up at Kelly, she saw big tears pooling in his eyes.
“I know you hear this all the time,” he said. “But it’s not about the money. If we file suit—and I still haven’t decided to do it—but if we do… we’re not going to settle.”
Kelly had been litigating at B&W for five years. Every client swore it was a matter of principle. For most, the principle that mattered most was the amount of money the other side offered in settlement. She sensed that Blake might be an exception.
“A case like this won’t be easy,” she said. “It could take years. You and I will be ruthlessly attacked by the NRA and their affiliates.” She paused to emphasize the seriousness of her warning. “Are you ready for that?”
In response, Blake reached into his back pocket and pulled out his wallet. He opened it up and retrieved a small piece of folded paper with a grainy brown and white image on it. He gently unfolded the paper and slid it across the table.
“Here.” He rotated the paper, and the image became clear. It was a 3-D ultrasound. The small baby inside Rachel’s womb was in the traditional upside-down fetal position, looking cozy and content.
The image rocked Kelly. “How far along?”
“Twenty-two weeks.”
Kelly hesitated, trying to divorce her personal life from her professional one. She needed to focus on Blake and Rachel. “Did you know if it was a girl or a boy?”
“A little girl.”
“Had you picked out a name?”
“Rebecca.”
Rachel and Rebecca. Biblical names.
“I’m sorry,” Kelly said. She folded the paper carefully, as if handling a priceless artifact, and handed it back to Blake.
The news media had reported that Rachel was pregnant, so that part was no surprise. But actually seeing the ultrasound and hearing the name somehow made it real. A person. A tiny baby in the safest place imaginable, violently slaughtered.
These were the kinds of thoughts Kelly had been carefully avoiding the past seven years. This case, if the screening committee let her pursue it, could be tougher and more personal than any Kelly had tried yet.
Four days later, on a cold Friday morning in November, Kelly presented her proposal to the stone-faced B&W screening committee.
Despite all of its marketing and recruiting pitches to the contrary, B&W was still firmly entrenched in the “good-old-boy culture.” The five unsmiling faces on the screening committee belonged to old, male, white, Ivy League–credentialed lawyers. They were also five of the most conservative and pessimistic partners in the firm, strategically placed on this committee because the firm believed that the best time to fire troublesome clients was five minutes before signing an agreement to represent them.
Kelly made it about halfway through her presentation before the questions started.
“What about the theory of independent superseding cause? Don’t the actions of this guy… what’s his name?”
“Jamison.”
“Right. Don’t his criminal actions cut off the right to pursue MD Firearms?”
Before Kelly could answer, another member of the committee piped in. “She’s not proposing a negligence theory. She’s saying this company creates a public nuisance by selling to rogue dealers. Causation is analyzed differently under a nuisance theory.”
“Actually,” Kelly said, “I’m proposing both.”
“Even if we take this on a contingency fee, who’s going to pay the out-of-pocket costs?”