Randy Singer - The Justice Game

“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 amp;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 amp;W screening committee.

Despite all of its marketing and recruiting pitches to the contrary, B amp;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.