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Outgunned

Up Against the NRA-- The First Complete Insider Account of the Battle Over Gun Control
By Peter Harry Brown, Daniel G. Abel

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Chapter One

Mission Impossible: Assembling the Team

New Orleans, Louisiana, October 30, 1998. Just over a week after the plan for the lawsuit had been slapped down on Mayor Morial's desk, Wendell Gauthier couldn't sleep. A windstorm had whipped up about midnight and rattled the trees and swept around the corners of his glass and birch-wood mansion. He normally fell into bed exhausted and didn't awaken until the sun was sparkling on the beveled-glass windows.

But in the hazy predawn hours, his phone jangled repeatedly, and a rasp of voices spewed hate-filled tirades into his answering machine. The callers were men of the gun, members of the Aryan Brotherhood, and, in a few cases, fellow attorneys convinced that Wendell Gauthier intended to take away their guns. Despite Gauthier's staff's best efforts, news had leaked out about the upcoming antigun litigation.

John Coale of Washington, D.C., one of Gauthier's lieutenants in the gun battle, decided to alert the press "for that extra little jolt." So he called friends at the Bloomberg journalistic group, a communications conglomerate with ties to the Internet, the Wall Street Journal, and the Associated Press. What had been a small leak became a tidal wave as news of the lawsuit jumped from the pages of the Boston Globe (which was the first paper to print the story) to the AP and, finally, onto the United Press International radio wire. The late-night talk shows wanted to know if Gauthier would do to guns what he had done to tobacco.

Throughout his two decades as a litigator, Gauthier had weathered press ridicule and opposing counsel derision. He'd been called "master of disaster," "king of torts," and "Boom-Boom" (the latter honoring his success with explosives litigation). But all in all, he managed to maintain a "white knight" image: a good-hearted champion (albeit a rich one) eager to deliver solace and cash to his clients. The gun suit would make him the target of the conservative press, the Republican Party, the National Rifle Association, and the Christian Conservative Alliance.

At New Orleans City Hall, Mayor Morial was having late-night problems of his own. When the news leak had reached Philadelphia, it provoked an angry phone call from the city's mayor, Edward Rendell, who already was mired waist-deep in a campaign of his own against the gun manufacturers. "This is my deal!" he screamed at Morial. "You know I started this in the Conference of Mayors, so back off and let me proceed. I'm damned close to reaching a settlement with the gun companies."

Rendell demanded that Morial postpone his action so that he could schedule one last meeting with the firearms attorneys. The Philadelphia mayor explained that he was close to hammering out a settlement.

But Morial quietly explained that he couldn't. Court documents were already filed. Press releases had been distributed. Enraged, Rendell slammed down the phone, but not before spewing a string of expletives.

Rendell had reason to be angry, but not for the one he gave. In early 1998, he had decided not to proceed with the complaint that had been drafted for the city by Temple University law professor David Kairys. He was instead dealing directly with NRA leaders. Rendell was more than aware of the 165,000 voting NRA members in Pennsylvania, but he wasn't in the organization's pocket. He was torn.

Frustrated when settlement talks lapsed with gun manufacturers' negotiators, Rendell threatened to proceed with the lawsuit.

"He went further than that," recalls Paul Jannuzzo, vice president and general counsel of Glock, Inc. "Rendell called us together and told us we either did what he said or one hundred lawsuits would be filed against us from coast to coast."

The Philadelphia mayor briefly considered holding a competing press conference when New Orleans delivered its news, but decided against it. Public sentiment was volatile; voters could easily turn against his cause -- and him. There was just too much on the table to lose.

Back in New Orleans, Gauthier prepared for his media event. By morning, bulletins concerning the lawsuit had been picked up by CNN, NBC, ABC, and Fox News, who were ready to broadcast live reports from New Orleans City Hall's Old Spanish Steps. Despite his best efforts, the conference did not go smoothly.

At 12:30 PM, while he and Abel waited for Morial to appear, a group calling itself "the South Mississippi Aryan Brotherhood" called in a bomb threat to the mayor's office, warning that an incendiary device had been planted somewhere in City Hall. It would be triggered at 1:30 PM, the news conference's start time. Police immediately evacuated the building, barricading all nearby streets, and escorting bomb-sniffing dogs through City Hall's long corridors.

Abel leaped over a barricade and bolted up the stairs in search of Mayor Morial. After some searching, he found him behind the building, calmly rereading the fifty-page lawsuit.

When the police dogs indicated that City Hall was bomb-free, Morial and a keyed-up Gauthier resumed their positions on the podium and announced their suit against gun companies, gun retailers, and pawnshops. Reporters from ten states and stringers for Australia, Canada, and Great Britain recorded their words.

"Waiting periods for gun purchasers; a limit of one gun purchase per thirty-day period; and a plan for the design, manufacture, and sale of smart or personal guns."

Their demands seemed modest to many.

When the conference broke up, Gauthier immediately headed to his office, leaving Morial to be mobbed by journalists. However, one reporter from CNN cornered the attorney: "Why does the City of New Orleans need a big-time lawyer like you to litigate for them?"

"Because the mayor asked me to," he replied. "Now if you are going out to get a big entertainer in here, you'd get the best -- Madonna or Barbra Streisand. With me, Marc knows he is getting the best."

The reporter pressed on: "Mr. Gauthier, you are not an elected official; you have no obligation to voters; what gives you the right to sue?"

Gauthier bristled: "We are taking the gun dealers to court because the political process failed us. The mayor tried to crack down on the dealers when he was a state senator, and the gun lobby crushed his efforts each time. He couldn't even get a bill out of committee. If lawyers hadn't launched Brown v. Board of Education, you would never have had school integration because it was so unpopular with lawmakers.

"How can our legislature make aspirin bottles childproof and ignore the possibility that guns can be made safe as well? I say, get your butt in court, Mr. Gun Maker, and let's see what you have. And when we reveal the facts, Mr. Gun Maker, nobody's going to be interested in whether I am making a fee or not. They are going to be interested in whether you did wrong or if you sold your guns to criminals."

Abel stayed out late that night with visiting press corps members, celebrating the suit's announcement. But when he returned home, he found nasty communications on his phone service. Unlike Gauthier, he listened raptly to the messages, informally trying to gauge public opinion. Then he began fielding calls -- mostly a torrent of name-calling, curses, and threats until just after midnight, when a caller put a gun near his phone receiver and fired two shots.

Using the strategy that earned him success against the nation's tobacco makers, Gauthier gathered together thirty-seven attorneys from around the country, and encouraged them to pool their resources and fund a "war room" to oversee the litigation. The thirty-seven attorneys each contributed $50,000 in cash, man-hours, and research. The money funded a permanent staff of paralegals. Gauthier also prepped the thirty-seven attorneys about taking the gun companies to court.

The lawsuit broke new ground by attacking the firearms industry for "failing to install safety devices that would prevent children -- and other unauthorized users -- from firing the gun." As written by Abel and Dennis Henigan of Handgun Control, Incorporated, the suit also faulted gunmakers for developing prototypes of so-called smart guns and then refusing to manufacture them. (In fact, only Colt's Manufacturing Company had developed a model that wouldn't fire without a signal from the owner's radio transmitter. That gun has not been proven reliable).

New Orleans sought to recoup millions of dollars spent on police, medical, and other city services in connection with suicides, murders, and other unintentional shootings. Gauthier and his associates' cut would be 20 percent of any settlement and 30 percent of any judgment should the case go to trial.

Wendell Gauthier suddenly found himself gaining more notoriety for masterminding this antigun litigation than at any time prior in his career. He also was proving very intriguing to journalists, some of whom depicted him as a hero, others as a greedy opportunist intent on rooting out cash awards from the gun companies.

The Weekly Standard's Matt Labash summed up the objections. "If it burns, leaks, seeps or (praise god) explodes, chances are Gauthier is heading up the plaintiff's committee, siphoning 25 to 35 per cent contingency fees from multi-million dollar jackpots." In an interview with the author, Labash continued: "I do not see a cause of action here. Guns are meant to fire bullets. Guns are meant to kill or maim. Guns are violent or they would not do their job."

Gauthier agreed with that assessment -- but only to a point. He believed that handguns had become too deadly -- with their armor-piercing bullets and pinpoint laser sights. "In the hands of children and criminals, they're an invitation to disaster."

Because the attorney had cultivated an antipathy toward firearms that was out of step with his profession, he was immune to the gun mystique that seems to permeate American life.

"I cannot imagine anyone other than Wendell to head up this effort," Henigan said. "In fact, he was the one who convinced me that these lawsuits were viable when he recruited my help to write the pleading."

Henigan, on loan from Handgun Control, Inc., saw Gauthier as a "doer" rather than "just a thinker."

Gauthier has been a man of action ever since he graduated from Southern University in New Orleans and headed for Loyola Universty's School of Law. Strapped for cash, he founded a driving school to pay for law school and the early, lean days of starting a practice.

When the big cases started roaring in -- such as the 1980 MGM Grand Hotel fire in Las Vegas and the 1982 Pan Am crash in Kenner, Louisiana -- Gauthier became known for his colorful style. His first big case came when twelve houses blew up in Metairie, Louisiana, because of faulty gaskets put on gas lines in the county. He garnered a $1 million settlement for his twelve clients but claims now that he did not see a cent in fees because his expenses had been so high.

Though educated at Southern University and able to speak fluent French and quote Voltaire, Gauthier could play country bumpkin to win the sympathies of unsophisticated juries and would employ humor to defuse tense situations -- and hopefully sway opinions. Once, during a 1988 case involving harmful chemicals, he discovered at noon Friday that crucial medical documents would not arrive until Monday. This meant he would be forced to start his closing arguments before the documents reached him. Just before lunch, Gauthier asked for a continuance. "No, this trial is late enough as it is," answered the judge. "And, Mr. Gauthier, you are skating on thin ice considering the number of delays you have facilitated in this case."

Gauthier tore out of the courthouse at noon and began canvassing toy stores for a state-of-the-art robot that could walk, beep, and follow his commands from remote controls. Gauthier found the perfect one and stashed the remote controls in his coat pocket. Back in court, Wendell put the robot beneath the plaintiff's table and pointed it toward the bench. It beeped and clinked its way to the judge's bench, where it butted its head onto a small set of stairs and tipped over. In its hands was a note for the judge that said, "Won't you please, please give my master a continuance? His very future as a lawyer depends upon this." Raucous laughter filled the courtroom until the judge picked up the toy and aimed it back at Gauthier: "Tell your master he has the continuance."

Sometimes his antics trailed into the badlands of legal ethics. In 1994, Gauthier even faked a heart attack -- again to force a continuance. The case involved a multimillion-dollar claim, and Gauthier didn't want to give his closing argument on a Friday. Gauthier explained: "The jury would have forgotten everything I said when they returned on Monday. I had a hell of a closing argument and didn't want to throw it away.

"I put on a heavy tweed blazer and ran to the stairwell of a nearby parking garage adjacent to the court house. It was summer. It was very hot -- I would say ninety-six degrees. So I ran up and down those stairs as fast as I could for fifteen minutes. My pants stuck to my legs and my white shirt was soaked and my tie was stuck to my shirt. Then I staggered down the aisle of the courtroom, grabbing my chest, and slumped into my seat."

The opposing counsel leaped to his feet and pled with the judge to grant Gauthier's request for a continuance. "I don't think Mr. Gauthier is well enough to continue."

Gauthier feigned frailty, "I can go on, I think. I do not wish to cause the court any trouble."

The judge leaned over his bench in concern: "Mr. Gauthier, I don't think it is in your best interest for us to continue."

So Gauthier went home happy. He was even happier ten days later when he obtained a $1.5 million settlement.

While these career adventures made Gauthier one of the most notorious lawyers in New Orleans, they also made him wealthy, earning him upward of $100 million. But they didn't bring him the serious reputation he craved. In 1984, though, he decided to change that. He bought a shopping center and converted one wing of it into a two-story, state-of-the-art legal complex that boasted a fully appointed courtroom, special jury rooms, and a law library rivaling that of the nearby Loyola University School of Law so that he could practice moot court sessions to perfect his strategies.

"I decided to rehearse each lawsuit in advance," he said. "So I built a courtroom with professional video recording equipment. The mock jurors are able to judge me instantly. And I'm frequently unimpressive. But at least I have the time to change my approach."

He also pioneered the use of "shadow juries" in Louisiana. Gauthier, his sister Totsy, and his brother-in-law Phil King hire jurors that match, as closely as possible, the real jury he would face in each trial. These jurors, who are paid about $50 per day, attend court each day, and are polled twice daily. On the final day, they go into real deliberations in Gauthier's jury room, which he monitors with audio and video equipment, and also can observe through a mirrored window.

About twenty-five years ago, as he continued to hone his legal skills, he began specializing in national disasters. He excelled, gaining a reputation as one of the best class-action attorneys in the world.

The Continental Grain Company elevator explosion earned him his first national headlines. Shortly after noon on September 17, 1977, a huge grain elevator exploded in Chalmette, Louisiana killing 7 and injuring 23 other workers. Gauthier and Abel drove over, and they were the first lawyers on the scene, hours ahead of any other legal teams.

Their primary task was to determine the cause of the sudden silo explosion, the first in Louisiana history. Gauthier sent Abel into the remaining silos to search for evidence. Abel convinced a friendly technician to lower him by rope into one of the huge storage buildings. "When I got halfway down, I could see the trouble immediately. The ventilation ducts were not working and particles of grain formed a dangerous fog. The smallest spark would set off a bonfire."

Gauthier was able to win a $208 million settlement for his clients by arguing that the silo and elevator, together, formed "one big defective product," he later said. Doing so had allowed him to sue each of the twenty-five companies that had provided parts to the compound structure.

Then, in 1980, an explosion ripped through the MGM Grand Hotel in Las Vegas, killing 87 people. Gauthier was called into service again by friends who had suffered smoke inhalation during the crisis.

Gauthier and his team chartered a jet to the gambling capital. They arrived there at 2:15 AM and installed themselves in a motel room -- which would become their base camp. Fifteen minutes later, Gauthier, with team attorney Pat McCabe, sped to the hotel scene. At the MGM Grand, a Las Vegas police officer showed his badge and said, "This is a crime scene. Nobody gets in." Except Gauthier, who was able to convince the cop that he had the court's permission. Gauthier and McCabe toured the wrecked hotel and surmised that it had not been properly equipped in fire prevention technology. On a second tour, he turned to McCabe and said, "Pat, everything here was flammable right down to the dice."

"The conflagration was fierce," Gauthier recalled. "The people in the casinos didn't have a chance, the fire was moving so fast. And all of this was due to the polyester in the drapes, the tables, the carpets and, yes, the dice."

In all, Gauthier sued 201 corporate defendants (including MGM, which had only a $3 million fire insurance policy) and reached a $223 million settlement for his clients.

He triumphed a third time in 1991 by garnering a $220 million settlement after the 1986 fire at the San Juan DuPont Plaza Hotel that killed 98 people and injured 157. The casework for the suit ran millions of pages and included statements and testimony from more than 900 witnesses. Gauthier's staff, with Abel in charge, remained in Puerto Rico for the entire five-year duration of the case.

The tobacco suits shot him into the pantheon of legendary litigators. The legal action started when Gauthier's best friend, Peter Castano, a lifelong smoker, died of lung cancer at the age of forty-seven. Gauthier vowed to put the tobacco industry on trial. "They were unregulated," said Gauthier. "Peter Castano didn't know that cigarettes would kill him. He didn't know tobacco products were manufactured to purposely addict humans." So Gauthier assembled a team of lawyers and called them the Castano Litigation Group.

Gauthier's legion eventually included sixty-five law firms around the country. At his request, each put up $60,000 to fight the tobacco suits. The case drove some of the lawyers into near bankruptcy. To meet extra expenses and to continue working on contingency (without retainers), some were forced to take out second mortgages on their homes, boats, and cars.

Their diligence paid off. They reached a settlement of $346 billion. For spearheading the tobacco lawsuits, Gauthier received the American Lung Association's award of the year.

The Castano Litigation Group's share of the tobacco treasure will eventually total more than $40 million. It had taken Gauthier fifteen years to rise from being a general practitioner who drafted wills and protested parking tickets to becoming a legend.

Still, many of his fellow New Orleans attorneys dismissed his accomplishments. It was all luck. Would it run out with this current litigation?

While Abel and Henigan were assembling the antigun squadrons, Wendell recruited his two top adjutants: John Coale, the "clown prince of the legal world," in Washington, D.C., and the "sultan of settlement," Stanley Chesley of Cincinnati. Both were legal street fighters who had worked themselves up to the top in a legal world that shunned them. Coale was more famous, but Chesley had earned more money -- three-quarters of a billion dollars during the last fifteen years.

Gauthier, Coale, Chesley, and Abel had bonded at the site of the 1984 Union Carbide chemical leak in Bhopal, India. Coale -- along with his Indian tailor -- jetted in to sign up clients. And sign he did: 50,000 of them. Chesley came to settle and to steal most of Coale's clients (to populate his Union Carbide class-action suit before a New York court). Coale ended up working for Chesley, making repeated trips to India to sign up more victims. While an elephant chased Gauthier through the streets of India, Abel crept over terrain with thickets full of cobras to spy on the Union Carbide plant. All came home without a dime. When Chesley tried to portray his efforts as "humanitarian aid" at a press conference, the journalists burst into laughter.

Apart from good stories, Coale and Chesley brought to the gun litigation an invaluable asset -- the ear of President William Clinton.

Coale makes more of his "First Family ties" than Chesley. From the steps of Coale's office building in Washington, the skyline of the city's monuments is majestic. Inside, there is a photographic gallery showing Coale with President Clinton and even Socks the cat. "You could say that I spend a lot of time in the White House," he said.

Coale was being modest. As one of the few outsiders, he was a regular at the late-night card games Clinton savored. A typical night would find Clinton, Coale, Clinton aide Bruce Lindsey, and Coale's best friend and Clinton's brother-in law, Hugh Rodham, together in the basement. These "basement" connections would later transform the battle against the gunmakers.

In his rock-and-rolling office chair, Coale reminds you of a youthful Henry VIII -- sartorial style excepted. During office interviews, he purposely wheels and turns his swivel chair, keeping journalists preoccupied and off balance.

Coale likes to present himself as a glorified ambulance chaser and champion of the little people, ignoring his stellar career at the plaintiffs' bar. He blithely dismisses the hundreds of millions in awards over the last ten years. "I started as the DWI (driving while intoxicated) king of Washington, D.C.," he volunteers jauntily. But he will only deprecate himself so far before going on the offensive. For instance, when Ed Bradley, on 60 Minutes, called him "a vulture that would circle and pick at the bones when people suffer misfortune," Coale leaned out so that he was in Bradley's face: "No, Ed, I circle and pick the bones of the corporate bastards who create these misfortunes."

During an interview in his Washington, D.C., office, Coale made it clear that he doesn't entirely mind being referred to as an attorney with a murky past. He grabbed a handful of bad notices from a desk drawer and offered them up: "Reputable newspapers printed these stories, but they're fit only for a tabloid -- it's yellow journalism pure and simple. Once the media gets a little dirt on someone, they use it, and use it and use it -- even if it happened decades ago."

The blustery Coale is cagey enough to endure these broadsides in comparative silence. "Contacting the press just focuses more attention on me," he said.

Coale really did chase ambulances. He also courted victims with a brutish style. This was evident when he tried to sign up a man with burns over 80 percent of his body. "Who else is going to help these people," he shrugged.

But he bristled at only one charge: that he is the "sleaziest lawyer in America." "This just isn't true," he said in an interview with the authors.

Gauthier's other deputy, Stan Chesley, was the first to be called the "master of disaster." When Gauthier hustled him to join the gun suits, Chesley was relaxing in the best suite at Washington, D.C.'s Willard Hotel. "When Wendell first called, I was skeptical," Chesley remembers. "I had just spent five years fighting the tobacco industry. Suing the gun industry looked to be just as taxing as tobacco."

Wendell explained that lawsuits against the firearms industry fit the Castano philosophy of the plaintiffs' bar as a de facto fourth branch of government, achieving by litigation what had failed legislatively. Tobacco was the prime example. But civil rights issues, airline safety, and misuse of firearms qualify as well.

Chesley found this irresistible.

Known was as "the meanest attorney in America," or "the best-known and least-liked member of the Plaintiffs' Bar," Gauthier explains: "When I first met Chesley, I thought he was arrogant and abrasive, and there were not many qualities that I liked. But time has worn off the rough edges. We share a distant friendship."

But Chesley thinks it is a waste of time to take a personal injury case to court. He pushes and shoves and manipulates a case until the other side is begging to settle. Then he becomes a charmer who pushes the awards higher and higher with velvet gloves.

A splendid dresser who conducts business in a gilded and paneled office, Chesley created the model for modern personal injury actions. The case that changed his career came in 1977 when a fire killed 165 people at the Beverly Hills Supper Club in Southgate, Kentucky. In that case Chesley charged 1,100 defendants in what is called "enterprise liability" in which he sued manufacturers of generic items like carpet and wires -- anything that contributed to the blaze. Chesley went on spending his and his firm's money during six trials. It cost a million dollars. He collected $49 million.

To complete his team, Gauthier wanted a lawyer-scholar who was familiar with the Byzantine workings of the gun world and cognizant of its protector, the mighty National Rifle Association. He found such a man right under his nose -- the chief counsel of Handgun Control Incorporated, Sarah Brady's antigun lobby -- Dennis Henigan, who had abandoned a lucrative practice in Washington, D.C., to take HCI's more moderate salary. He already had friends who were involved in the gun cause. "They were having a lot more fun than I was," he explained in an interview. "And they were doing something important. So he gave up his seven-figure-a-year practice and signed on as an antigun warrior.

Dennis was ready. Four years earlier, Attorney Henigan borrowed a cache of guns and headed to a lush, isolated forest in New England. He took out his array of firearms -- a .22 rifle, a shotgun, a .347 magnum, and a .45-caliber pistol -- and laid them in a row next to his feet. They were prime guns -- the best America's gun industry had to offer. The sun glinted on the hand-tooled barrel of the shotgun and highlighted the sophisticated shape of the pistol.

He picked them up one by one, shooting until the ammunition ran out. The test bonded him to the weapons. He had never felt so powerful or as invulnerable. "It gave me a rush, I was mesmerized," he recalled. His aim had been to experience the addiction that enslaved millions of Americans.

Years later, as general counsel for Handgun Control, Inc., Henigan was growing impatient. The winds of gun control were sweeping around the country, led by Philadelphia's Mayor Ed Rendell and his Task Force on Handgun Violence. Progress was being made. Henigan was hopeful when he heard Rendell was ready to file suit against the gun moguls

"I eagerly volunteered," Henigan recalls. "But I was rudely rebuffed." When word leaked that Chicago Mayor Richard Daley and his political machine were ready to take on handgun-makers, he told Daley that he and HCI were ready to help. The mayor didn't even return the phone call.

Still, Henigan saw that both mayors were carving out a new legal trail. Cities, rather than individual victims, were ready to take on the firearms industry. Henigan wanted in the game.

He persuaded Sarah Brady and the other HCI brass that legislation was a dead end and that litigation was probably the only way to achieve significant gun control. In fact, the National Rifle Association had a political hammerlock on the House of Representatives. During the heated election campaign of 1994, the NRA paid $5 million to elect the Newt Gingrich slate and boldly referred to the conservative freshman representatives as "our own legislators." (Between 1994 and 1996 every major gun-control proposal failed to get out of congressional committee for consideration by the whole of Congress.)

Henigan drafted a prototype suit of his own, then sat back and waited. He had left a "big money" career with the Washington, D.C., firm of Foley & Lardner to enter what he termed "public service." His salary plummeted and his political headaches began as he faced the gun lobby on a daily basis.

John Coale rejoiced at Gauthier's selection of Henigan. "He's a walking encyclopedia. He knows everything about the issue. If you're doing a case, and you have a person who knows everything about the issue; you would want him on board no matter what the case is." While Gauthier rounded up more Castano members, Henigan jetted to New Orleans to conduct what he calls "tutorials on the subject of gun control"

In the days following the New Orleans press conference, the Castano Group looked over their shoulders toward Fairfax, Virginia, and the headquarters of the National Rifle Association -- the organization that Forbes magazine would soon call "the most powerful organization in the United States."

Copyright © 2003 by Peter Harry Brown

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