New York City Prevails in Gun Shop Nuisance Case

Law.com ^ | 06-03-2008 | Mark Fass

[BloodOrFreedom]

In a surprise turn of events on the eve of opening arguments, New York City prevailed Monday in its public nuisance lawsuit against Georgia gun dealer Adventure Outdoors when Eastern District of New York Judge Jack B. Weinstein granted the city's motion for a default judgment.

The ruling gave the city a victory in the most high-profile case in Mayor Michael R. Bloomberg's fight against the dealers of guns used in crimes within the city. Of the 27 original defendants, three have now defaulted, 20 settled, three won dismissal and one is scheduled to go to trial in September.

The case came to its rapid denouement Monday morning, when Adventure Outdoors' attorney moved to withdraw, citing the expense of defending a case that, following Weinstein's decision two weeks ago ordering a bench trial, had become unwinnable.

"Adventure Outdoors has decided that it does not intend to defend itself at a bench trial. Unlike the City, which can spend unlimited amounts of the taxpayers' money, Adventure Outdoors is a small retail dealer with limited resources and cannot afford to participate in a four-week bench trial, the result of which is a foregone conclusion," wrote John F. Renzulli, the head of Renzulli Law Firm in White Plains, N.Y.

The attorneys for the two sides in City of New York v. A-1 Jewelry and Pawn, 06-cv-2238, originally expecting to wrap up jury selection and exhibit lists Monday, instead debated Renzulli's motion to withdraw and the city's motion for a default judgment.

In a heated back and forth with Renzulli, Weinstein denied the motion to withdraw. He cited the ethics of withdrawing on the eve of trial and ordered the two sides to appear before a special magistrate judge to hammer out the specifics of the default judgment.

"It's too late to withdraw," Weinstein said. "The financial relationship between Renzulli and Adventure Outdoors Inc. is for the two sides to decide upon. A lawyer may not abandon his client in the midst of litigation at this stage."

Renzulli countered, "You're keeping me captive now in a case my client can't afford. I find that repugnant. I will fight that. I will fight that hard, and I will not give up."

Outside the courtroom after the hearing, attorneys for the city said they would seek from Magistrate Judge Cheryl L. Pollak a judgment similar to the 20 settlements the city had hammered out with other gun dealers.

In those deals, the defendants agreed to allow a special master oversee their operations, to refrain from selling firearms to either straw purchasers or people posing as straw purchasers and to subject themselves to additional penalties if found in violation of state or federal laws.

Kenneth W. Taber, a Pillsbury Winthrop Shaw Pittman partner and co-lead counsel for the city, told reporters that there may be minor differences between the default judgment and the agreements, such as who pays for the special master, noting that in this case the city need not provide the defense with incentives to settle.

In an ad hoc courthouse news conference Monday, Renzulli said the decision to withdraw was not an "explicit strategy" to circumvent Weinstein and instead fight the case before the 2nd U.S. Circuit Court of Appeals.

"We're not cutting and running," Renzulli said. But, he added, "We're not spending hundreds of thousands of dollars to fight something that is a foregone conclusion. We were in this case until we had our constitutional jury taken away from us."

The city's attorneys expected Monday to be the quiet before today's storm. The Law Department's lawyers first learned of their imminent victory via a ping to senior counsel Richard J. Costa's BlackBerry shortly after 9 a.m.: Costa, just about to walk from his Brooklyn Heights, N.Y., home to the downtown Brooklyn court, had received an automatic update from the court's electronic filing system, notifying him of the motion to withdraw. Costa immediately forwarded the e-mail to his colleagues from the Law Department and Pillsbury Withrop.

By the time the attorneys arrived at the courthouse over the next hour, the issue of the day was no longer finalizing the jury and exhibits, but rather Renzulli's motion.

The two sides must now brief the issue of whether, and to what degree, Renzulli and his firm should be required to participate in those proceedings.

[BloodOrFreedom]

It's unfortunate, but the courts, in their infinite wisdom, have decreed that although the Constitution prohibits the federal government from banning firearms, the individual states have complete discretionary power in their interpretation and execution of the 2nd amendment

[Lawgvr1955]

The States seem to be able to do away with the 2d Amendment, but let them try to do away with the “right” to an abortion found in a “penumbra” of the Constitution.

[Jack Black]

New York sends agents to Georgia acting as undercover investigators, sues people based on the (supposed, unproven) actions of the vendors in Georgia, forces them to come to Naw Yawk for the trial, gets a friendly judge, the judge uses some Naw Yawk technicality to have the option of a trial by Jury voided so that he alone can decide guilt.

This is what is called justice in Naw Yawk!

The person who should be most outraged by this is the Gov. of Georgia. Is he really OK with letting NY get away with this? What about some turn-about-is-fair-play enforcement. Send some Southerners up there with bogus prescriptions, have large NY based pharmas fill them, then sue them in Georgia, with Judge Cousin Bubba presiding.

[Jack Black]

BTW: The Clintons loved this kind of stuff. Goodbye WITCH.

[Harrius Magnus]

It makes me uncomfortable to pronounce absolutes, but anyone who celebrates this whole affair is an enemy of freedom, and thus a scumbag. Can you imagine (as if liberals care) what the Founders would have to say?

[Viking2002]

This mummified old asshat is an LBJ appointee who refuses to go quietly. And this, from Wikipedia:

"Judge Jack Weinstein has been criticized for being sympathetic towards plaintiffs in litigation against the tobacco and firearm industries.[5] An investigation by the New York Sun found that big lawsuits with billions of dollars at stake tend to get assigned to Judge Weinstein.[6] According to the newspaper, some plaintiffs, particularly in tobacco and firearms cases state at filing time that their cases are related to other cases that are or have been before Judge Weinstein. This results in their cases being assigned to him as well. Judge Weinstein has been criticized for this practice by other judges including Judge George Pratt and Judge José Cabranes of the 2nd Circuit.[6] Defense attorneys for the firearm and tobacco industries have alleged judge shopping and have long tried to get their cases reassigned away from Judge Weinstein's courtroom, with mixed results.

The article reports that on Dec 6, 2007, John Renzulli, a firearms industry attorney will ask Judge Weinstein to recuse himself from City of New York v. A-1 Jewelry & Pawn, et al.[7], a firearms lawsuit brought by New York City against out-of-state gun dealers, arguing that "the assignment of this entire chain of firearms cases to Your Honor can only be characterized as a poisonous tree".

The Second Amendment Foundation, a gun rights organization has called upon Judge Weinstein to step down from the bench or step aside from hearing any further gun industry lawsuit cases, arguing that the judge has become known more for activism than judicial neutrality.[8]

In June 2008, in the case of Adventure Outdoors, a Georgia gun dealer sued by the City of New York, Judge Weinstein was accused of having "already made up his mind about the case, making any trial “a mere formality.”" Judge Weinstein had decided to seat an advisory jury — one whose decision would not be binding and would leave the judge himself as the final arbiter of fact and law. This caused the gun dealer to withdraw from the trial in order to move more quickly to an appellate court.[9] The Second Amendment Foundation echoed concerns that the dealer could not get a fair trial before Judge Weinstein and called for Weinstein to recuse himself from firearms industry cases.[10]"

You can be sure Nanny Bloomberg had an invisible hand in making sure this old fossil got to rule on the case.

[pray4liberty]

Send some Southerners up there with bogus prescriptions, have large NY based pharmas fill them, then sue them in Georgia, with Judge Cousin Bubba presiding.

That's not a bad idea.

[yefragetuwrabrumuy]

Actually, that is exactly right. The gun stores should file suit in Georgia against the City of New York, and reach a summary judgment before city attorneys even show up. Say, a ten billion dollar judgment should solve a lot of this problem.

[supercat]

Since Congress has the authority to decide the effects of judgments in one state on people in another, and since Congress has used such authority to forbid lawsuits such as this one, why can’t the dealer just ignore the judgment? How is it supposed to be enforced?

[BloodOrFreedom]

Can you imagine (as if liberals care) what the Founders would have to say?

Can't know for sure, but I would imagine they would be heartbroken at the state of affairs facing the persecution of our freedoms, not to mention the extreme to which government usurpation of power and intervention has been taken. I would imagine that they would be (if you'll excuse the cliche) turning in their graves.

Part of the Founder's theory and intention was to have, essentially, a "laissez-faire", or "hands-off" type of government. After being oppressed by the British government, a limited intervening government, they felt, was what was essential and most beneficial for their new nation and for the preservation of the basic freedoms. How far we've come from that desire. Now, everywhere you look, the people are crying for the government to do something about their troubles; are looking for "their slice of the pie" and want it handed to them with some whipped cream and a cool glass of milk. Broadly interpreted, our government has become almost more communist-like, which is far from what the Founders EVER envisioned.

[basil]

These A$$hats know that a small gun shop can never have the money to fight these things--that's exactly why they pick on them.

This is just wrong.........

[redstateconfidential]

Not gonna happen , our Sonny Perdue is a Rino and a former DNC hand maiden from way back. We have no leaders in the GOP.Our two senators eat the peanuts out the illegal immigrant BIG farmer’s morning movements.

[BloodOrFreedom]

These A$$hats know that a small gun shop can never have the money to fight these things--that's exactly why they pick on them.

On top of that, you've got a very liberal city bringing up the charges. Libs, tending to be anti-2nd amendment, will have no trouble pushing this trough the courts. Trying to fight the libs in that kind of environment is like trying to blow up a balloon while underwater.

[loboinok]

Can you imagine (as if liberals care) what the Founders would have to say?

I doubt they would be saying anything... but you would be hearing alot.

[Dahoser]

It's unfortunate, but the courts, in their infinite wisdom, have decreed that although the Constitution prohibits the federal government from banning firearms, the individual states have complete discretionary power in their interpretation and execution of the 2nd amendment

Actually, until incorporation changed everything, the 2nd Amendment was not supposed to have any bearing on the states. They were free to do as they pleased. Of course, the Founders did not fear that the states would be a danger to our liberties. It was the federal government that worried them.

[Travis McGee]

[EdReform]

Bloomberg Fight Back Fund, Jay Wallace, President, Adventure Outdoors:

June 3, 2008 Update

Added June 2, 2008 to Court page today. I remain working on other items to publish. Stay tuned and keep signing my guest book. I like reading how everyone is feeling on this important issue.

June 2, 2008 Update

Well I’m sure many of you are wondering what is going on. I will do my best to give the details of what & why.

What:

This morning the Renzulli Law Firm respectfully moved to withdraw as counsel for Adventure Outdoors. Adventure Outdoors has decided that it does not intend to defend itself at a bench trial. Unlike the City, which can spend unlimited amounts of taxpayer’s money, Adventure Outdoors is a small retail dealer with limited resources and cannot afford to participate in a four-week bench trial, the result of which is a foregone conclusion and will result, as this court has acknowledged, in an appeal. This would require Adventure Outdoors to again try the case before a constitutional jury after appeal and remand. Adventure Outdoors has accordingly chosen not to engage in the futile exercise of defending itself at a bench trial, and to appeal from any default judgment that may be entered against it.

Why:

Adventure Outdoors’ decision is motivated by the fact that it will not receive a fair trail. The City selected the district judge that it desired to hear this case in violation of Adventure Outdoors’ right to due process. Six days before trial was scheduled to begin, the court deprived Adventure Outdoors of its Seventh Amendment right to a trial by jury and indicated that it would serve as the finder of fact. Based on its findings of fact and conclusion of law in the N.A.A.C.P. v. Acusport, Inc, the Court has already concluded that Adventure Outdoors has contributed to firearms-related public nuisance in New York City and a trial would accordingly be a mere expensive formality.

Adventure Outdoors was brought to trial in the fine City of New York under the pretence the Court has jurisdiction over a law abiding firearms retailer almost a thousand miles away. I am expected to allow the Mayor whom I have no vote to place a “special master” in my store and tell me how to run my business. The Court has prohibited the Mayor from testifying. He is the very person who is responsible for this litigation and he is not allowed to testify. Is the Mayor not able to speak in support of his decisions? The Court has allowed the City to remove the mention of the Second Amendment. The last thing the Court has done to me is by saying Cecilia and I will not be allowed to sit together along side our attorney.

Who could continue in this court under these circumstances? In every sense of the word justice is not being served for Adventure Outdoors, my family, the citizens of Georgia or even the citizens of New York City. Therefore I decided to no longer continue to fight in the District Court of the Eastern District of New York under such unfair conditions.

I will take my fight to the Appellate Court of New York and use my efforts there were I can have a fair chance. Do not deduct by our leaving this arena that we are giving up or feel the City is justified in any way of their actions, far from it. I am avoiding an ambush by those who feel justice is best served by those with an agenda rather than the word of law. Adventure Outdoors will fight another day and looks forward to returning under the jurisdiction of the New York Appellate Court.

I will post more tomorrow on how the City is spinning my decision to default..."

[EdReform]

BTTT!

[Redbob]

"What about some turn-about-is-fair-play enforcement. Send some Southerners up there with bogus prescriptions, have large NY based pharmas fill them, then sue them in Georgia, with Judge Cousin Bubba presiding."

I got a better idea:
Deputize the owner of Adventure Outdoors, and authorize him to arrest any speeders he finds out on the Interstate... especially those with New York plates...

[stylin19a]

confusing parts in this story...judge allows a bench trial 2 weeks ago, yet
"The attorneys for the two sides in City of New York v. A-1 Jewelry and Pawn, 06-cv-2238, originally expecting to wrap up jury selection

are these 2 different cases represented by the same attorney ?