Rice v. Paladin Enterprises, Inc.

• Decision Date: 06 September 1996
• Docket Number: Civil Action No. AW 95-3811.,Civil Action No. AW 96-444.
• Citation: 940 F.Supp. 836
• Parties: Vivian RICE, et al., Plaintiffs, v. PALADIN ENTERPRISES, INC. et al., Defendants. Michael D. SAUNDERS, et al., Plaintiffs, v. PALADIN ENTERPRISES, INC., et al., Defendants.
• Court: U.S. District Court — District of Maryland

940 F.Supp. 836

Vivian RICE, et al., Plaintiffs, v. PALADIN ENTERPRISES, INC. et al., Defendants.

Michael D. SAUNDERS, et al., Plaintiffs, v. PALADIN ENTERPRISES, INC., et al., Defendants.

Civil Action No. AW 95-3811.

Civil Action No. AW 96-444.

United States District Court, D. Maryland, Southern Division.

September 6, 1996.

Howard L. Siegel, and John Marshall, Rockville, MD, and Rodney A. Smolla, Williamsburg, VA, for plaintiffs Rice, Farmer and Horn.

Thomas L. Heeney, Washington, DC, for plaintiff Saunders.

Lee J. Levine, Seth D. Berlin, Washington, DC, Natalie Hanlon-Leh, Thomas B. Kelley and Steven A. Zansberg, Denver, CO, for defendants Paladin Enterprises, Inc. and Peter C. Lund.

Bruce W. Sanford, College Park, MD, and Henry S. Hoberman, and James E. Houpt, Washington, DC, for amici American Book-sellers Foundation for Free Expression, Association of American Publishers, E. W. Scripps Company, Freedom Forum First Amendment Center, Freedom to Read Foundation, Media/Professional Insurance, Magazine Publishers of America, Inc., National Association of Broadcasters, Newspaper Association of America, Reporters Committee for Freedom of the Press, Society of Professional Journalists, and Thomas Jefferson Center for the Protection of Free Expression; Douglas D. Connah, Jr., Baltimore, Maryland, for amicus Courtroom Television Network.

AMENDED MEMORANDUM OPINION

WILLIAMS, District Judge.

Plaintiffs filed wrongful death and survival actions against the Defendants Paladin Enterprises, Inc. ("Paladin"), a book publishing company, and its President, Peter Lund, for the triple murder committed by convicted killer, James Perry, who had purchased two of the Defendants' books prior to committing the murders.¹ Federal jurisdiction is properly invoked pursuant to 28 U.S.C. § 1332(a)(1) because the parties are from different states and the amount in controversy exceeds $50,000. According to the Plaintiffs, the Defendants aided and abetted the murders of the three decedents by publishing two books which James Perry consulted to commit the murders: Hit Man: A Technical Manual for Independent Contractors ("Hit Man") and How to Make a Disposable Silencer, Vol. II ("Silencers"). The Plaintiffs are also seeking damages in their survival and wrongful death actions based on theories of civil conspiracy, strict liability, and negligence.

Pending before the Court is the Defendants' motion for summary judgment. The Defendants argue, at the outset, that they cannot be held liable for civil damages because they have a First Amendment right to publish these books. The Court has considered the parties respective memoranda and the entire record. The Court has also permitted oral argument by counsel at a hearing conducted on July 22, 1996. For the reasons that follow, the Court will grant the Defendants' motion for summary judgment.

I. Background

For the purposes of this motion, the parties have stipulated to the following set of facts. Hit Man and Silencers were both published in 1983 and, since then, approximately 13,000 copies of each book have been sold nationally. Paladin advertises the book in its mail order catalogue which has the following description:

HIT MAN

A Technical Manual for Independent Contractors by Rex Feral

Rex Feral kills for hire. Some consider him a criminal. Others think him a hero. In truth, he is a lethal weapon aimed at those he hunts. He is a last recourse in these times when laws are so twisted that justice goes unserved. He is a man who feels no twinge of guilt at doing his job. He is a professional killer.

Learn how a pro gets assignments, creates a false identity, makes a disposable silencer, leaves the scene without a trace, watches his mark unobserved and more. Feral reveals how to get in, do the job and get out without getting caught. For academic study only. 5½ × 8½, softcover, 19 photos, illus., 144 pp.

                   ISBN 0-87364-276-7               $10.00
                

Def.'s Ex. 1 at 41.

On the page preceding the table of contents, the following disclaimer appears:

WARNING

IT IS AGAINST THE LAW TO manufacture a silencer without an appropriate license from the federal government. There are state and local laws prohibiting the possession of weapons and their accessories in many areas. Severe penalties are prescribed for violations of these laws. Neither the author nor the publisher assumes responsibility for the use or misuse of information contained in this book. For informational purposes only!

Def.'s Ex. B at v.

It is undisputed that prior to March 3, 1992, Lawrence Horn began plotting with James Perry of Detroit, Michigan to have Perry murder his ex-wife, Mildred Horn, and his son, Trevor. On or about January 24, 1992, James Perry responded to a catalogue solicitation by the defendant, Paladin, advertising Hit Man and Silencers. Perry ordered and received both publications. Paladin had no other contact with Perry nor with Lawrence Horn.

On March 3, 1993, James Perry traveled from Detroit, Michigan to Montgomery County, Maryland and murdered Mildred Horn, Trevor Horn, and Janice Saunders, Trevor's private duty nurse. Perry followed a number of instructions outlined in Hit Man and Silencers in planning, executing and attempting to get away with the murders. However, Defendants had no specific knowledge that either Perry or Horn planned to commit a crime; that Perry and Horn had entered into a conspiracy for the purpose of committing a crime; nor that Perry had been retained by Horn to murder Mildred Horn, Trevor Horn, or Janice Saunders.

Defendants concede, for the purposes of this motion, that in publishing, distributing and selling Hit Man and Silencers to Perry, they assisted him in the subsequent perpetration of the murders which are the subject of this litigation. For example, each of the excerpts from Hit Man listed below was followed by Perry in the planning and execution of the murders for which he was convicted:

"What other basic equipment will the beginner need as essential tools of his trade? ... [an] AR-7 rifle." (p. 21)

James Perry used an AR-7 rifle to commit the murders of Mildred Horn and Janice Saunders.

"The AR-7 rifle is recommended because it is both inexpensive and accurate. The barrel breaks down for storage inside the stock with the clip. It is lightweight and easy to carry or conceal when disassembled." (p. 22)

After the murders, James Perry disassembled the AR-7 rifle as instructed by the Defendants.

"The AR-7 has a serial number stamped on the case, just above the clip port. This number should be completely drilled out. The hole left will be unsightly but will not interfere with the working mechanism of the gun or the clip feed." (p. 23)

James Perry drilled out the serial number of the AR-7 rifle exactly as instructed by the Defendants.

"The directions and photographs that follow show in explicit detail how to construct a silencer for a Ruger 10/22 rifle. The same directions can be followed successfully to construct a silencer for any weapon, with only the size of the drill rod used for alignment changed to fit the inside dimension of the barrel." (p. 39)

James Perry used a homemade silencer which he used to silently kill Mildred Horn and Janice Saunders.

"Close kills are by far preferred to shots fired over a long distance. You will need to know beyond any doubt that the desired result has been achieved. When using a small caliber weapon like the 22, it is best to shoot from a distance of three to six feet. You will not want to be at point blank range to avoid having the victim's blood splatter you or your clothing. At least three shots should be fired to insure quick and sure death ... aim for the head — preferably the eye sockets if you are a sharpshooter." (p. 24)

James Perry shot Mildred Horn and Janice Saunders from a distance of three feet. He shot them each three times in the eyes.

"Use a rat-tail file, alter the gun barrel, the shell chamber, the loading ramp, the firing pin and the ejector pin. Each one of these items leaves its own definite mark and impression on the shell casing, which if any shells happened to be left behind, can be matched up to the gun under a microscope in a police laboratory. (p. 25) ... Of primary importance now too, is changing the rifling of the murder weapon. This should be done even before you leave the crime scene. That way, even if you get picked up or stopped with the weapon in your possession, its ballistics will not match the bullets you left behind in the mark." (p. 105)

James Perry filed down the parts of the AR-7 Rifle.

Perry followed additional instructional references from Hit Man in planning and executing the murders, including how to solicit for and obtain prospective clients in need of murder for hire services; requesting up-front money for expenses; how to register at a motel in the vicinity of the crime, paying with cash and using a fake license tag number; committing the murders at the victims' home; how to make the crime scene look like a burglary; reminding to clean up and carry away the ejected shells; breaking down the gun and discarding the pieces along the roadside after the murders; and using a rental car, a stolen tag on the rental car and the discarding of the tag after the murders.

Paladin engaged in a marketing strategy intended to attract and assist criminals and would-be criminals who desire information and instructions on how to commit crimes. In publishing, marketing, advertising and distributing Hit Man and Silencers, Paladin intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications.

All parties agree that Paladin's marketing strategy is intended to maximize sales to the public, including authors who desire information for the purpose of writing books about crime and criminals, law enforcement officers and agencies who desire information...