Cover Story: Bang! You’re sued

Cobb County police heard gunfire last Dec. 22 when they arrived at the Tramore Apartments in Austell after answering an emergency call about a home invasion. Then they found three bodies. Herb Pritchard and his fiancee, Lela Alford, apparently died in a lovers’ quarrel.</
The third victim was Alford’s daughter, 28-year-old private investigator Tanya Nooner. Her slaying was almost certainly a case of being in the wrong place at the wrong time.</
Yet Nooner’s death by gun violence was a sad irony, considering her most famous customer and the nature of the case upon which she was working: an anti-gun crusade launched by New York Mayor – and possible independent presidential candidate – Michael Bloomberg. The city’s legal machine had hired Nooner to snare Georgia gun sellers whose firearms ended up in the hands of murderers, thugs and thieves in New York.</
The investigator’s work formed part of the foundation of twin lawsuits the Bloomberg administration has filed against gun dealers, some in New York but most in Georgia, Virginia and South Carolina. Since many of the guns are transported up Interstate 95 from the South to New York, the highway has earned an ominous moniker: “The Iron Pipeline.”</
At least two of the gun stores have shot back with countersuits – including one shop that was targeted by Nooner, Adventure Outdoors in Smyrna. Adding to the star appeal of the cases, Adventure Outdoors’ lawyer in the countersuit is Bob Barr, a former congressman and outspoken civil libertarian.</
The venerable “states’ rights” debate between the North and South echoes in the duel over New York’s use of undercover agents. There’s a world of difference in how two regions of the United States view gun ownership. In Georgia and the rest of old Dixie, the right to own and brandish weapons – even the right to fire first when you feel threatened – is sanctified in custom and law. In New York and many other Northern cities, severe restrictions on gun ownership, especially handguns, are equally part of the culture.</
“The origin of 90 percent of the guns used in New York crime is out of state,” says John Feinblatt, Bloomberg’s deputy in charge of gunning for gun dealers. “The truth is that Congress has tied the hands of the ATF [Bureau of Alcohol, Tobacco and Firearms] in enforcing the laws. We had no choice but to raise our voices about dealers who make illegal gun sales resulting in guns reaching the streets of New York City.”</
Barr counters that his client, Adventure Outdoors, has a long record of cooperating with the ATF – even turning in suspect gun buyers – and he derides Bloomberg’s assault as “political grandstanding.”</
“This is primarily a matter of fundamental fairness,” Barr says. “What right do New York officials have to come here and dictate how my client does his business?”</
Fair or not, so far Bloomberg is the only one to put points on the board. Twelve of the 27 gun dealers sued by New York – and four of eight in Georgia – have settled with the city, essentially agreeing to upgrade their procedures for checking gun purchasers. Even Barr concedes the settlements are “problematic.”</
On the other hand, Bloomberg failed in an effort to enlist the U.S. Justice Department in his cause. The mayor had hoped his civil lawsuits would be augmented by federal criminal charges. In February, however, the department responded that the gun sales in question “do not rise to a level that would support a criminal prosecution.” Moreover, Michael Battle, director of the Executive Office for U.S. Attorneys, warned Feinblatt in a letter of “potential legal liabilities ... when persons outside of law enforcement undertake actions typically reserved for law enforcement agents.”</
Battle even cautioned that “civilian efforts can unintentionally interrupt or jeopardize ongoing criminal investigations.”</
In a fracas that pits gun dealers, who view themselves as legitimate businessmen, against a powerful national politician, there’s no shortage of vitriol. Barr denounces “rogue mayors” – Bloomberg and 200 others, including Atlanta’s Shirley Franklin, who back New York’s anti-gun initiatives. Bloomberg has called the gun dealers the city is suing “the worst of the worst,” “a scourge on our society” and “bad apples.”</
On April 8, 2006, Tanya Nooner was operating undercover when she visited Adventure Outdoors on South Cobb Drive. It’s not just a shop. It’s a megastore that dispenses almost 500 guns a month — more than 94,000 firearms over the last three decades — to the well-armed citizenry of North Georgia. And, Bloomberg’s lawyers argue, the store was peddling firearms to a few folks who shouldn’t own guns, which is why Nooner was posing as a buyer shopping for a Glock 26 handgun.</
Nooner attempted to make what in the gun trade is dubbed a “straw” purchase. That happens when someone who may be ineligible to own a gun uses another person to buy it. Straw purchases are a violation of federal law. Much of the 20 minutes’ worth of paperwork involved in buying a gun is intended not only to weed out crooks and crazies, but also to scuttle sales to would-be buyers who intend to flip the guns to folks who have lost the right to be armed.</
A 2002 bulletin sent from the Justice Department to the nation’s U.S. attorneys warns about the deals: “The felon provides the money for the gun, selects the gun, and directs the purchase. The straw purchaser just fills out all of the required paperwork, posing as the buyer.”</
Nooner actually was executing what could be described as a “straw-straw” purchase – a sting, although local law enforcement agencies weren’t consulted about New York’s forays into Georgia. Bloomberg’s federal lawsuit accuses Adventure Outdoors of being cavalier in checking buyers’ gun-eligibility bona fides, based on Nooner’s purchase. She and an associate allegedly acted as if they were making a “straw” purchase – and the gun shop didn’t care, according to the litigation.</
Adventure Outdoors’ owner Jay Wallace, heatedly disputes the allegation. He points to a long record in the gun business with no serious regulatory infractions.</
New York filed its federal lawsuit in May 2006 against Adventure Outdoors and 14 other gun dealers. A similar lawsuit put 12 additional stores in Bloomberg’s legal sights. “Gun violence in New York City is a direct result of thousands of handguns in the possession of individuals for whom gun ownership is illegal by reason of their criminal history, mental infirmity, age and/or lack of a license,” states the New York complaint. “The very reason for forbidding prohibited persons from possessing guns is their known propensity to use them to commit crimes. ... The enormous number of illegally possessed guns in the hands of prohibited persons unequivocally meets the definition of a common law public nuisance.”</
That the Iron Pipeline exists isn’t a new revelation. The Atlanta Journal-Constitution reported in 1993: “Because of Georgia’s lax gun-control laws, guns bought here are involved in an ever-increasing number of crimes in major Northern cities. They are not, for the most part, stolen guns. They are legally purchased and sent ... to cities where gun-control laws are generally tighter.”</
What’s novel is New York City’s solution: suing gun stores in distant states. “We are the safest big city in the nation,” boasts Bloomberg aide Feinblatt. “And one of the reasons is getting tough with illegal guns, which is an interstate problem.”</
Last year, there were 7.3 murders per 100,000 people in New York, compared with Atlanta’s 22.6 homicides per 100,000 population. Although it’s unclear how many of those homicides involve guns, about two-thirds of murders nationwide are caused by firearms. How New York’s lower crime rate relates to gun sales in Georgia is speculative, and likely will be heatedly debated in court.</
Adventure Outdoors’ problems began when the shop, along with Wallace’s two other stores, was included in a 2004 study, “High Crime Gun Stores Fuel Crime,” by the now-defunct Americans for Gun Safety Foundation. Using criteria such as obliterated serial numbers, multiple sales to the same person and a short time span between gun sale and a crime, the study concluded that 120 gun dealers were complicit in arming criminals. Wallace’s businesses ranked No. 82 on the list.</
Among all the nation’s 80,000 gun sellers, the study stated, 1 percent of dealers accounted for 57 percent of the guns used in crimes. ATF statistics are similar: 332 dealers, or 0.4 percent, account for 40 percent of crime-linked firearms.</
Bloomberg’s campaign used the foundation study as a hit list. “The mayor is in a unique position,” Feinblatt explains. “He has to go to the hospitals and break the news to loved ones that someone has been shot to death. The more we can get guns out of the hands of criminals, the fewer trips [Bloomberg] will have to make.</
“That’s why we sued these dealers, and these dealerships that we’ve sued jump right off the page,” Feinblatt says.</
The gun-safety foundation found that 254 firearms acquired at Adventure Outdoors from 1996 to 2000 figured into criminal deeds nationwide. According to New York’s complaint, between 1994 and 2001, 21 guns connected to crimes in New York were purchased from Wallace’s stores.</
(By comparison, among the recent ATF busts was one New Orleans shop that has supplied 2,300 guns later involved in crimes, including 125 murders.)</
But Barr notes that his client has sold 94,000 guns over the years. He says New York’s “huge leap of logic is that because 21 guns sold by Adventure Outdoors over a seven-year period were found in New York, that means Jay Wallace was doing something wrong. Ridiculous.”</
The lawsuit was able to tie specific crimes in the city to the guns purchased in Smyrna. In March 1996, for example, a man was shot in the face with a 9 mm handgun purchased from Adventure Outdoors. The next month, a robber pistol-whipped a man with one of the guns sold by Wallace. Two years later, cops collared a man fleeing and armed with a gun bought in Smyrna.</
None of the crimes cited in the litigation were murders. But all are the type of street crime that degrades the quality of life in a city – much as is happening today with rising violent-crime rates in Atlanta.</
The lawsuit is thick with emotion. The substantive portion kicks off with newspaper accounts of a horrifying list of gun violence in New York during a single five-day period in 2005. “Police nabbed the man who gunned down two people ...” “Police yesterday identified a young man who was shot dead ...” “Two men were shot in a botched robbery attempt ...” “An argument over a soccer game turned fatal ...” “A 2 1/2-year-old boy was shot and killed in the Bronx when a stray bullet penetrated his family’s minivan.”</
None of the weapons used in those crimes is linked to Adventure Outdoors, however, or for that matter to any of the gun shops named in Bloomberg’s lawsuits. But the complaints do make the point about the origins of guns in general, and the stores that sell them: “Dealers whose intentional participation in illegal sales is exposed by undercover ‘stings’ show a sharp reduction in the number of guns sold by them that are later recovered in crimes, as compared with sales made before the stings occurred.”</
From the start, Bloomberg faced giant hurdles in enforcing a New York state of mind on Southern gun dealers. For example, New York couldn’t dispatch its own detectives or private investigators to other parts of the nation to purchase guns. The law requires a buyer to be a resident of the state where the firearm is purchased. So the city hired investigators – Nooner, for example – in the various states where suspect gun shops were located.</
Compounding the problem is that however aggressive New York is in trying to regulate guns, the nation is awash in firearms. About 90 million Americans own more than 200 million pistols, revolvers, rifles, shotguns, muzzle-loaders and machine guns.</
New York officials wouldn’t say how many gun shops were initially targeted, only that 27 were sued. Some escaped Bloomberg’s stings, though. When Nooner and an associate tried the straw-purchase gambit at the Candler Road Pawnshop in Decatur, they ran into a brick wall in the form of a husky salesman, Mike Phillips.</
“The man, he had a Georgia ID, and the sale looked good,” Phillips recalls. “Then he said that the woman was the one really buying the gun. I told him, ‘That’s against the law.’ My rule is, if it smells fishy, walk away. The woman came back a second time and tried to do it again. I said, ‘no.’”</
Bloomberg spokesman Post had nothing but praise for the Candler Road store and Phillips – but the salesman wasn’t impressed. “I don’t appreciate what New York is doing,” Phillips says. “If we have a problem, we need to police it ourselves.”</
Jay Wallace could be your next-door neighbor. He could be just about anyone’s next-door neighbor. He’s affable, gracious, graying, sometimes gruff. His Alabama-bred drawl is muted but still capable of dallying with some syllables while ignoring others completely.</
Wallace loves to show off his firearm emporium and to tell about how he began his business 30 years ago after noticing that people flocked to second-hand stores looking for bargains. He later opened Smyrna Pawnbrokers, which got him into gun sales, and recalls in his understated way, “That was a good thing to do.”</
So good that it eventually led to Adventure Outdoors, a sprawling store and warehouse that on any given day has 8,000 to 10,000 guns for sale. If it shoots, Wallace sells it.</
Guns of every size and for every purpose, along with all of the paraphernalia of the gun culture, crowd the walls and overwhelm showcases. The storeroom is stacked from the floor to a two-story-high ceiling with boxes and boxes of guns, gun safes, ammunition and all the accoutrements of a well-regulated militia or an impressively locked-and-loaded gun owner.</
One room stores dozens of surplus police handguns that are mounted on rubber-coated pegs inserted into the business ends of the barrels. A mezzanine-level office has windows that give a panoramic view of the sales area, and security cameras monitor every action. Wallace proudly displays the computerized and paper records that track transactions.</
“We go to such great lengths to ensure sales are legal that accusations that we don’t are just plain crazy,” Wallace says.</
An Atlanta-based ATF agent, who asked not to be named because of the litigation and agency rules, says Wallace’s stores have a “good record” of compliance with federal laws.</
To underscore that, Wallace introduces one of his salesmen, Jonathan Gay, who recently helped federal agents nab a bad guy. “This gentleman goes to give me his driver’s license, and I see a New York license under his Georgia license,” Gay recalls. “That was a signal of a problem.”</
The sale was delayed while the store covertly called ATF agents, who arrested the would-be buyer on a number of charges.</
Many law firms are packed with “First Amendment lawyers” who defend free speech, everything from newspaper articles to pornography. In Bob Barr’s office, there’s a New Yorker cartoon depicting a cocktail party where a society matron tells a rifle-toting, well-tailored man: “How very exciting! I’ve never before met a Second Amendment lawyer.”</
“I guess that’s me,” quips Barr, who before going to Congress was Ronald Reagan’s U.S. attorney in the Northern District of Georgia. A longtime board member of the National Rifle Association, Barr unsurprisingly finds himself on the front lines of yet another skirmish in America’s gun wars. Bloomberg’s assault has been met with a fusillade from the gun lobby and its political allies.</
In a law that went into effect this month, Virginia legislators made New York-style stings a felony – unless local law enforcement agencies are involved. The law was pushed by Virginia Attorney General Robert McDonnell, who wrote Bloomberg: “This new law strikes the proper balance between ensuring proper law enforcement and protecting the rights of law-abiding firearms dealers and those of Virginia citizens under the Second Amendment.”</
“Our object has been to keep guns from criminals,” Bloomberg spokesman Jason Post responds. “We wish Virginia was concerned about that.”</
Now one of Georgia’s most powerful gun-rights advocates is promising to push a similar bill in next year’s Legislature.</
“We all want to enforce the laws. We don’t need a guy in New York teaching us how to do that,” says state Rep. Earl Ehrhart, R-Powder Springs, who peppers his discussion of New York’s action with his own colorful takes on Yankee chauvinism: “I sure wish Mayor Bloomberg would come and visit us before he sends people down here to do stings. After all, we have paved roads and indoor plumbing nowadays, and he might want to learn about that.”</
And in Washington this month, congressional friends of the NRA reaffirmed a measure that prohibits law enforcement from accessing ATF gun trace information outside of the jurisdiction where a firearm is involved in a crime. Gaining such information has been one of the critical tools in New York City’s campaign against gun dealers in other states.</
“Mike Bloomberg has endless amounts of taxpayers’ money to hire a private police force, and we believe that’s wrong,” says NRA chief spokesman Andrew Arulanandam. “If there’s a problem, target the lawbreakers. There’s a federal bureau entrusted with enforcing federal gun laws. It isn’t the job of New York City.”</
Bloomberg’s side claimed its own victory this month in pressuring the ATF to crack down on bad gun dealers. The agency announced the results of an intense three-year campaign, which resulted in the revocation of the licenses of 220 shops in 2005 and 2006, 20 more than in the previous eight years. And 105 gun dealers have been indicted on criminal charges.</
Barr counters that the ATF push against gun shops – in contrast to Bloomberg’s end run through the civil courts – qualifies as legitimate police work. “That’s as it should be,” Barr says. “We support strict enforcement of the laws.”</
Barr and a New York lawyer, John Renzulli, opened a double-barreled counterattack a year ago against Bloomberg. While Renzulli is challenging “jurisdiction” – the legality of New York operating stings against legitimate Georgia businesses – Barr filed a $400 million counterclaim on behalf of Wallace against New York.</
His litigation was announced at a flag-waving Marietta rally July 20, 2006. It alleges Bloomberg and his aides engaged in fraudulent acts, and libeled and slandered Wallace. Bloomberg, for example, is quoted as saying the gun dealers “were caught ... breaking the federal laws,” and Feinblatt claimed the dealers “have blood on their hands” and are “immoral and corrupt.”</
Barr’s complaint – initially filed in a Georgia court but at New York’s insistence transferred to federal jurisdiction – makes the allegation that, among many other misdeeds by city officials, they weren’t very good sleuths. New York made no attempt to debrief investigator Nooner or to find out why she put her initials on the paragraph in the sale documents asserting the gun was being purchased for her own use, the litigation states.</
The Adventure Outdoors countersuit also makes the claim that Bloomberg made a “perverse effort” to solicit Atlanta Mayor Franklin’s support “in presenting egregious slander” in New York’s “malicious and illegal” crusade against Georgia gun dealers.</
Franklin’s office responded to a question about the mayor’s role by e-mailing a prepared statement detailing the formation of the group of mayors to combat illegal gun sales.</
Whether the Wallace countersuit’s claims of fraud and defamation stick depends on whether the original New York City allegations are proven – that private investigator Nooner successfully made a straw purchase at Adventure Outdoors.</
The New York complaint itself is ambiguous, conceding that there’s been “no transfer of the gun by the straw purchaser necessary for an actual straw sale.” And the lawsuit acknowledges that a proper background check was performed. Another problem is that Tanya Nooner, the star witness against Adventure Outdoors, became a murder victim.</
Adventure Outdoors’ Wallace points to the place on the federal documents where a buyer swears the gun isn’t being purchased for another person. “If we allowed a straw purchase, if that’s so, then why did Tanya Nooner put her initials here? Why did we insist she answer that question?”</
Barr and Wallace also point to fundamental questions about New York’s litigation: Do the links between the 21 guns sold in Smyrna and New York crime show a failing on the part of the gun store? Were the sales legal and the guns resold after they went out the door? Were they stolen before they ended up in criminals’ hands in the Big Apple? And, considering the sting investigations, does New York have any evidence that any of the 21 guns were acquired via a straw purchase?</
None of those questions is answered in the litigation documents. The only specifics asserted by New York – that serial numbers were removed, for example – could have happened long after Adventure Outdoors sold the guns.</
And, although Bloomberg’s lawsuit cites the Americans for Gun Safety Foundation study, the litigation ignores a big caveat in the report: “[J]ust because a store is on the list of high crime gun stores does not mean the store is engaging in illegal behavior. It is possible that some of these stores do such a high volume of business that it is inevitable that some firearms will be used in crimes.” Adventure Outdoors is just such a high-volume dealer.</
Wallace, who has spent more than $250,000 in the litigation, says the price is worth it. “This is my reputation, my family’s reputation,” he says. “The worst thing that can happen to a dealer is to become one that’s known not to abide by the law.”</
FULL DISCLOSURE: John Sugg is a pistol-packing, carbine-carrying, shotgun-slinging member of the National Rifle Association.