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The lawyer for Georgia’s largest independent gun dealer said this week that his client trusted a New York jury would find that he had done nothing to put guns into the hands of New York City criminals — until the presiding judge announced that the jury would deliver a recommendation, rather than a verdict. “I like to dub it as the ‘fake jury,’” said New York attorney John F. Renzulli, about an advisory jury suggested by the trial judge. Renzulli is defending a Cobb County gun dealer Jay Wallace from a claim by the New York City government that guns sold by Wallace’s company, Adventure Outdoors, which found their way into criminals’ hands, constituted a nuisance to the city. Six days before the trial was to begin, U.S. District Senior Judge Jack B. Weinstein announced that he would employ the unusual advisory jury arrangement by which, Renzulli explained, the judge had the power to determine not only the law but also the facts, either in accordance with or in spite of the jury verdict. Doubtful of an unbiased ruling by Weinstein, Renzulli and Wallace countered with an unusual move of their own. With his client’s permission, Renzulli on Monday said he was backing out of the case, effectively surrendering Wallace’s position in hopes of challenging Weinstein’s decision in the 2nd U.S. Circuit Court of Appeals. Lawyers for New York City argued this week that by giving up so close to trial, Renzulli and Wallace also gave up their right to appeal. Renzulli responded that, “in no uncertain terms, that’s not even close to correct.” LOOKING FOR ‘SHINING LIGHT’ Wallace said by phone from New York on Tuesday, “We’ve known from the beginning we’re going into a court that is not friendly to the firearms industry. … The shining light was that we would have a jury of our peers. I was willing to come to New York and plead our case. I felt it was so obvious we were right.” But when he found out his jury could only recommend a verdict to Weinstein, Wallace rethought his position. “When you take what the judge has written in the past in other cases, that he feels that the firearms industry is a nuisance to the city of New York, you can see where this is going,” Wallace explained. “Going through the proceedings of this court was going to cost me $400,000. If I know I am not going to have a fair trial, I can’t afford to spend that money and end up with the same thing I have today at the appellate level.” To prompt the city to file a motion for a default judgment — which Renzulli said cannot be entered by the defendant — Renzulli filed a motion to withdraw as counsel and announced the company did “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 and will result, as this Court has acknowledged, in an appeal,” Renzulli wrote. “This would require Adventure Outdoors to again try the case before a constitutional jury after appeal and remand.” Renzulli said Tuesday that Weinstein has “denied for the moment” Renzulli’s motion to withdraw. City attorneys orally made a motion for a default judgment, which Weinstein orally granted Monday according to Kenneth W. Taber and Maria T. Galeno, partners at Pillsbury Winthrop Shaw Pittman in New York who are co-counsel for the city. But Taber said in a telephone interview Wednesday, “We have serious doubts about the appealability of any of the issues arising from these proceedings. There is some case authority … for the proposition that when you default in a case this late in the game, you don’t have any further appellate rights. The default terminates the action.” Renzulli replied: “That is a blatant misrepresentation. I think they would like that to be the case for sure, but it’s not even close.” BLOOMBERG’S CASE In 2006, Wallace was one of 27 gun dealers across the nation sued by New York Mayor Michael Bloomberg in federal court in New York. The two civil suits naming gun dealers as defendants followed a sting operation in which the city hired private investigators to pose as gun buyers. The investigators targeted stores that had sold guns that were subsequently used in 800 New York crimes between 1994 and 2001. The city alleged that gun dealers sold those guns to individuals who were not eligible to buy them, thereby creating a public nuisance for the city. The New York suit specifically accuses Adventure Outdoors of selling 21 guns that, between 1994 and 2001, were recovered from criminals in New York City or were connected to violent New York street crimes. According to the suit, those 21 guns were among a total of 254 guns sold at Adventure Outdoors during that same seven-year span which were later linked to violent crimes across the nation. Adventure Outdoors sells about 5,000 guns annually and has been in business for more than 30 years, according to Wallace. In the New York sting, investigators attempted to make a “straw purchase” — one in which a customer selects, negotiates the sale of and pays for the gun while his or her accomplice claims ownership by filling out the federal forms required to complete the purchase. Straw purchases 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. Twenty gun dealers have settled the city’s claims out of court. Cases against three other gun dealers have been dismissed. Default judgments have been entered against three other gun dealers, now including Wallace. A trial is pending in September against a Virginia gun shop. Galeno and Taber, who are representing the city pro-bono, said that they will seek from Weinstein an injunction that will allow a court-appointed special master to monitor the business activities of Adventure Outdoors, review its business records, train its sales force with respect to compliance with federal gun control laws, and periodically conduct surprise gun purchases with fines and penalties attached only if the gun store should sell a gun in violation of gun control statutes. “I know how I run my business,” Wallace countered Tuesday. “I could teach the city of New York and their special master how to properly run an independent firearms dealer.” Wallace said that for years, he and his staff, which include members of his family, have worked “very closely” with the U.S. Bureau of Alcohol, Tobacco & Firearms in tracking guns used in crimes and continue to do so. “The city,” he continued, “is claiming that our practices caused firearms to reach New York, that we are knowingly or negligently allowing firearms to make it to New York. That’s not the case at all. We have processes in place in our store … that are far and above the call of duty of what’s expected of a firearms dealer.” NO RIGHT TO A JURY Taber said that the city had objected to any jury trial, arguing that the gun store was not entitled to a jury trial because only injunctive relief, rather than monetary damages, was sought. Any fines and penalties would be levied only if the gun store broke the law in the future, he said. “If they obey the law from today forward, there will never be a fine or penalty,” he said. Weinstein, according to a transcript of a May 21 hearing, agreed, informing counsel for all parties that Adventure Outdoors did not have a constitutional right to a jury because the case against the gun store was a nuisance case in which the city was seeking only injunctive relief, rather than monetary damages. Renzulli said that Weinstein has employed the concept of an advisory jury in previous cases against gun manufacturers. In 2003, Weinstein held in NAACP v. Acusport that a constitutional jury was not required in any action involving a public nuisance when only injunctive relief was sought. In 2004, Weinstein again favored an advisory jury rather than a constitutional jury in City of New York v. Beretta USA, Renzulli said. But when attorneys for Beretta and other gun manufacturers decided to challenge the use of an advisory jury in that case, Weinstein decided that he retained the discretion to impanel a constitutional jury, even if one were not required. In the May 21 hearing, when Renzulli asked Weinstein to impanel a constitutional jury, Weinstein replied that he had “no discretion” to do so, according to a hearing transcript. That’s when Renzulli reminded him of Beretta. “I really don’t want to review Beretta,” Weinstein replied, according to the transcript. “I have made many errors and I will make many errors in the future and I’m not going to hear reargument of Beretta. I’m telling you that in this case my decision is what it is for the reasons I’ve said.” The case, in the Eastern District of New York, is City of New York v. A-1 Jewelry and Pawn, No. 1:66-CV-2233.

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