Libertarian Party presidential candidate Bob Barr represented gun store owners who allege they were defamed by New York Mayor Michael R. Bloomberg, who frequently was mentioned as a possible independent presidential candidate before announcing in February in a New York Times op-ed that he wouldn't be a candidate for the White House.
The next president, he warned in the op-ed must "crack down on the black market" for illegal guns.
It was Bloomberg's own effort to restrict guns in New York City that led to the defamation case in Georgia.
Barr represents Adventure Outdoors, a Cobb County gun store that claims it was defamed by Bloomberg at a 2006 news conference where he announced the city was filing suit in U.S. District Court in New York against 26 gun dealers, including Outdoor Adventures, to force them to comply with laws governing firearm sales.
While the arguments inside the courtroom focused on procedural issues, the gun store's lawyers said afterward the entire suit comes down to politics.
Barr's co-counsel, Edwin D. Marger -- with whom Barr shares an office in Jasper, Ga. -- said that the New York mayor's 2006 suit against Adventure Outdoors and 26 other gun dealers across the nation was "a play to get his own presidential ambitions before the people of the country." Bloomberg's comments prompted the Wallaces to sue Bloomberg for defamation in Georgia.
Marger made the statement outside the courthouse in downtown Atlanta after oral arguments concluded Tuesday morning.
Asked about his own presidential ambitions at the impromptu sidewalk news conference, Barr insisted his political aspirations were incidental to taking the case, noting that he took the case before he announced his presidential bid. Barr, a former Republican congressman, is a long-time advocate of gun owner rights.
Tuesday afternoon, Bloomberg spokesman Jason Post said via e-mail, "The sole reason the city filed lawsuits was to protect New Yorkers from illegal guns."
NEW YORK SUIT
In May 2006, Bloomberg called a news conference to announce that the city of New York was suing more than two dozen out-of-state gun dealers that, according to the mayor, had sold guns that ended up in the hands of criminals in New York City. Eight of the gun dealers, including Adventure Outdoors, were in Georgia.
The New York suit was predicated on a sting conceived by the mayor; the city's corporate counsel, Michael A. Cardozo; New York Police Chief Raymond Kelly; and the city's criminal justice coordinator, John Feinblatt. As part of the sting, the city hired private investigators who posed as gun buyers at stores that had sold guns linked to more than 800 New York crimes between 1994 and 2001.
The New York suit invokes public nuisance statutes in seeking an injunction that would force each gun seller named as a defendant to comply with federal state and local laws related to the sale of guns and bring a halt to all straw sales.
A straw sale is one in which a customer selects, negotiates the sale of, and pays for the gun but an accomplice fills out the federal forms required to complete the purchase. Straw sales are ruses to get around federal and state requirements prohibiting gun purchases by convicted felons or that limit the number of gun purchases to a single person within a specified time period.
At his news conference, Bloomberg called the gun dealers "a group of bad apples who routinely ignore federal regulations."
For two years, Bloomberg's attorneys -- among them Peter C. Canfield of Dow Lohnes in Atlanta -- had tried to have the case transferred to New York and combined with Bloomberg's suit there. To date, 20 gun dealers have settled the city's claims out of court in the New York litigation. Cases against three other gun dealers have been dismissed. Default judgments have been entered against three other gun dealers, including Adventure Outdoors.
Although lawyers representing the city of New York were successful in transferring Adventure Outdoors' case from Cobb County to U.S. District Court in Atlanta, U.S. District Senior Judge J. Owen Forrester has refused to relinquish the case.
The city appealed, claiming that Georgia did not have jurisdiction in the case and that New York law provided New York public officials absolute immunity from liability for any comments made in their official capacities -- a premise that if accepted would force a dismissal of the Adventure Outdoors case.
The appellate panel -- whose members included Circuit Judges Frank M. Hull and Joel F. Dubina, and Senior Circuit Judge Peter T. Fay -- throughout oral arguments on Tuesday expressed concerns about whether the appellate court, or even the federal bench, should have jurisdiction in the case or whether the current interlocutory appeal was even ripe at this stage.
On the mayor's behalf, Canfield argued that the case belonged in federal court, not in Cobb County, because Bloomberg's claims that Adventure Outdoors violated federal gun laws goes to the heart of the Wallaces' defamation action.
"An essential element of the plaintiffs' [Adventure Outdoors'] case is to prove falsity," Canfield said. "That is a federal question."
Dubina wanted to know why the questions of jurisdiction currently before the court on an interlocutory appeal shouldn't wait until after a final judgment by the lower district court.
Replied Canfield: "You can't fix it without forcing the defendant to undergo a trial they shouldn't have undergone."
While Canfield argued that jurisdiction should be in New York, where the allegedly defamatory statements were made, Barr argued for Adventure Outdoors that the case should be tried where the harm was done. That, he said, was in Georgia, where Bloomberg's media statements were published.
Afterward, Barr argued that the case originally was filed in Cobb County and should never have been removed to federal court by Bloomberg. The issue behind the litigation, he said, "is to determine whether the mayor of New York can come here and commit acts here and go back to New York and make defamatory statements" that cause harm to a Georgia business and yet sidestep adjudication in a Georgia court of law.
Related documents:
• Appellate Reply Brief (pdf)
• Main Appellate Brief (pdf)
