A federal appeals court held that a publisher who markets a training manual for hit men may be liable for damages for 'aiding and abetting' murder.
Can a publisher who markets a training manual for murder be hauled into civil court after the book is used to help someone kill three people?
In a closely watched case, a federal appeals court held that the publisher of a book entitled Hit Man: A Technical Manual for Independent Contractors may be liable for damages for "aiding and abetting" murder.
In April, the United States Supreme Court refused to hear the publisher's claim that the First Amendment shielded it from responsibility. Rice v. Paladin Enterprises, 128 F.3d 233 (4th Cir. 1997), cert. denied, 66 U.S.L.W. 3686 (U.S. Apr. 20, 1988) (No. 97-1325). The case is now proceeding toward trial.
The lawsuit involves Paladin Press of Boulder, Colo., a publisher that markets books on survivalism, warfare and weaponry. Paladin Press owner Peder Lund started the company in 1970 after serving as a captain with the Army's Green Berets. Paladin's books are available primarily at gun shows and through a mail order catalogue advertised in magazines like Soldier of Fortune.
One Paladin manual, Homemade C-4: A Recipe for Survival, is alleged to have aided convicted Oklahoma City bomber Timothy McVeigh in the construction of the ammonium nitrate truck bomb used to blow up the Murrah Federal Building in April 1995.
Recipe for Murder
Contract killer James Perry used Hit Man and another Paladin book, How to Make a Disposable Silencer, Volume II, to plan a triple execution in 1993.
Hit Man was written under a pseudonym, Rex Feral, in 1983. The Silencer book was also published that same year under a pseudonym. Since then, both books have sold in excess of 13,000 copies each.
Following specific instructions from Hit Man, Perry executed three people in Silver Springs, Md., just outside Washington, D.C., on the night of March 3, 1993. Perry shot both Mildred Horn and Janice Saunders, a home care nurse, three times in the eyes with a modified AR-7 rifle from a distance of three feet.
The two women cared for Mildred Horn's 8-year-old quadriplegic son, Trevor, who was suffocated to death by Perry the same evening.
Perry had been hired to commit the murders by Lawrence Horn. Horn wanted his ex-wife, Mildred, and his son, Trevor, killed so he could reap the proceeds of a $1.7 million medical malpractice settlement awarded to his son after the boy sustained debilitating injuries during a hospital stay.
Perry, a native of Detroit, carefully followed over two dozen instructions from Hit Man to plan and commit the murders and then to flee from the crime scene. He relied on the book's guidance in making solicitations to and in accepting payment from Lawrence Horn.
Just as Hit Man instructed its readers, Perry chose an AR-7 rifle, obscured the gun's serial number and affixed a silencer to it before shooting his victims. He removed ejected shells from the crime scene and tussled some of the victims' belongings to make the murders appear to be part of a burglary — again, just as the book recommended.
To avoid detection after the murders, Perry followed the book's instructions to disassemble the gun, file down its components, dump the pieces by the side of a road and flee the scene in a rental car bearing a stolen license plate.
Case Dismissed, Reinstated
Both Perry and Horn were tried and convicted for murder in Maryland state court. Perry was sentenced to death, while Horn was sentenced to life in prison without parole. After the murder convictions, the families of the victims filed civil wrongful death lawsuits in the U.S. District Court in Maryland to recover damages from Paladin Press.
In September 1996, U.S. District Court Judge Alexander Williams Jr. dismissed the civil case against Paladin Press on First Amendment grounds. While finding Hit Man to be "loathsome ... reprehensible and devoid of any significant redeeming social value," the court threw out the lawsuit because it believed that the book did not fall under any of the recognized areas of speech that are not protected by the First Amendment.
The victims' families appealed to the U.S. Court of Appeals for the Fourth Circuit. They were joined in their efforts by the National Victim Center, while Paladin Press' position was supported by a variety of publishing concerns and media organizations including ABC and The New York Times.
In a lengthy opinion, the appellate court reversed the district court's dismissal and remanded the case back down to the lower court for trial.
The appellate court held that a jury could find that Paladin "aided and abetted" Perry in the commission of the murders, even in the absence of a showing that Paladin had an ongoing relationship or was engaged in a conspiracy with Perry.
Paladin's stipulation of fact that Hit Man assisted Perry in the commission of the murders, coupled with the publisher's stipulation that it intended the book to be sold to murderers, was enough to establish a claim for aiding and abetting the murders, the court ruled.
The combination of detailed instructions, encouraging prose and the publisher's intent, the court reasoned, could lead a jury to find that Paladin "aided and abetted" in the killing.
Training, Not Mere Advocacy
The Fourth Circuit also held that the district court misapplied the standard for unlawful incitement to the unique facts of this case. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the U.S. Supreme Court held that political discourse that advocates crime can only be punished when it is likely to incite imminent criminal acts.
The court of appeals found that the Brandenburg incitement test was inapplicable because Hit Man went beyond advocating crime to teaching it. Unlike abstract political advocacy about the desirability of violence, intentional and explicit instructions to commit violence are an extension of the crime itself, and thus are punishable, the court ruled.
The court of appeals opinion rejected claims by publishers, booksellers and news outlets that its decision would create new areas of liability for authors and journalists who communicate detailed accounts of real and fictional crimes. According to the court, Paladin's "astonishing" stipulations that it both assisted Perry and intended its books to be purchased by criminals made the case unique.
Some observers believe that the court's attempts to narrow the scope of its decision will not stop the precedent from being applied in other contexts.
"Although the court was working with a narrow set of unique facts," said attorney David Greene, program director of the National Campaign for Freedom of Expression, "its opinion still exposes for punishment a wide variety of so-called 'instructional' speech."
Now that the Supreme Court has let the Hit Man ruling stand, courts around the country will have to decide how broadly to interpret the decision.
Attorney Brian Levin is an associate professor of criminal justice at the Richard Stockton College of New Jersey, where he also serves as director of the Center on Hate & Extremism. He is co-author of The Limits of Dissent: The Constitutional Status of Armed Civilian Militias (Aletheia Press, 1996) and the author of a forthcoming book, Hate and Justice in America (Aspen Publications, 1998).