Bloomberg offering to settle gun suits

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THE CITY OF NEW YORK,
Plaintiff,
-against-
A-1 JEWELRY & PAWN, INC.; ADVENTURE
OUTDOORS, INC.; COLE'S GUN SHOP, INC.,
DUNKELBERGER'S SPORTS OUTFITTERS,
GALLERY DISTRIBUTING INC.; GREG L. DRIGGERS
d/b/a AAA Gun & Pawn Brokers; THE GUN STORE,
INC.; HAROLD W. BABCOCK, JR. d/b/a Webb's
Sporting Goods; JAMES THOMAS FARMER d/b/a Jim's
Guns and Whatever; MICKALIS PAWN SHOP, LLC;
NANCY DAILEY d/b/a Peddler's Post; OLD DOMINION
GUNS & TACKLE, INC.; PATRIOT SERVICES, INC.;
WELSH PAWN SHOP, INC. d/b/a Big Tom's Pawn Shop;
WOODROW C. HOLMAN III d/b/a Woody's Pawn Shop,
Defendants.
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06 CV 2233
STIPULATION AND SETTLEMENT AGREEMENT
WHEREAS, plaintiff, The City of New York (the "City") commenced this action
on May 15, 2006 (the "New York Action") by filing a complaint against
the above-listed
defendants (the "Complaint") in the United States District Court for
the Eastern District of New
York (the "New York Court");
WHEREAS, defendants A-1 Jewelry & Pawn, Inc. ("A-1") and Greg L. Driggers
d/b/a AAA Gun & Pawn Brokers ("AAA") were each personally served with
the Complaint on
May 22, 2006;
WHEREAS, the date for defendants A-1 and AAA to answer or otherwise
respond to the Complaint has been adjourned sine die by the City;
WHEREAS, defendants A-1 and AAA contest the personal jurisdiction of the
New York Court over them, and deny the allegations of the Complaint
generally, but do not
otherwise object generally to the injunctive relief sought by the
City in the Complaint; and
WHEREAS, the parties desire to resolve this matter without further
litigation, by
an agreement that, consistent with defendants A-1's and AAA's right
to sell firearms as
permitted by law, implements the most cost-effective means of
assuring that a firearm sold by
defendants A-1 and AAA will not be illegally possessed in New York City;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth below, the parties agree as follows:
* 1. Defendants A-1 and AAA hereby consent to:
a. The City's immediate filing of an action against them (the
"Georgia Action") in the United States District Court for the
Southern District of Georgia (the
"Georgia Court") requesting injunctive relief only, with the proviso
that no claim, cause of action
or third-party complaint other than those set forth in the complaint
in New York Action shall be
included in the Georgia Action by anyone;
b. Service upon them of the Complaint in the Georgia Action by
delivery of a copy, by regular mail, to J. Michael Hall, Esq., Hall &
Kirkland, P.C., 23452
Highway 80, East, P.O. Box 647, Statesboro, GA 30459; and
c. The Georgia Court's exercise of personal and subject-matter
jurisdiction over defendants A-1 and AAA in the Georgia Action.
* 2. Upon the Georgia Court's entering of an injunction with the terms
specified in subparagraphs (a) through (g) of paragraph 3 hereof, and
the posting of the bond
referred to below, the City will on its own motion dismiss and
discontinue the New York Action as
against defendants A-1 and AAA in the New York Court, with prejudice.
* 3. Defendants A-1 and AAA further consent to the immediate entry
by the Georgia Court of a permanent injunction in the Georgia Action
whose terms shall be
substantially identical to those set forth in subparagraphs (a)
through (g) of this paragraph 3 (the
"Injunction") as follows:
a. An individual designated by the City shall be appointed as Special
Master by the Georgia Court. The parties agree that the Special
Master shall commence his
monitoring and training responsibilities within 30 days of the
signing of this Stipulation and
Agreement. The City shall compensate the Special Master for his fees
and expenses. No earlier
than six (6) months following the commencement of the Special
Master's monitoring duties, A-1
and AAA for good cause may petition the Georgia Court to appoint an
different Special Master,
and the City shall have the right to oppose such appointment.
b. The responsibility of the Special Master shall be to ensure, to the
fullest extent practicable, that firearm sales by defendants A-1 and
AAA are made in full
conformity with applicable law from the time of this Agreement
forward. The Special Master
shall utilize, without limitation, (i) in-store observation,
including the use of videotape
surveillance; (ii) records monitoring, including but not limited to
all trace requests made by ATF
to A-1 or AAA and of all multiple handgun sales reports made by A-1
or AAA to ATF for the
time period commencing with the date of this Agreement; (iii) random
and repeated integrity
testing; (iv) inspection of A-1's or AAA's inventory; and (v)
instructional programs designed to
provide "best practices" training to all A-1 and AAA employees with
respect to firearms sales.
c. A-1 and AAA agree that the Special Master's responsibilities require
free access to all documentation regarding firearms sales and
firearms in A-1 and AAA's
possession and agree to make such records available without
restriction to the Special Master for
the time period commencing with the date of this Agreement.
d. Any disagreement between the parties over any practice or decision
of the Special Master, including without limitation a decision of the
Special Master that a firearm
sale has been made in violation of Federal, Georgia state law or
local law or regulation, shall be
resolved by the Special Master. Either party has the right to contest
the Special Master's practice
or decision, including those decisions made pursuant to subparagraph
3(e) hereof, before the
Georgia Court or another neutral forum agreed to by the parties, such
as a mediator or arbitrator.
If the party filing such a contest does not prevail, it shall pay the
other party's attorney fees.
e. On or before a date 15 days after the signing of this Stipulation and
Settlement Agreement, defendants A-1 and AAA shall each post a
performance bond with the
Georgia Court in the amount of $5,000 in form and content
satisfactory to the City.
f. In the event defendant A-1 or AAA sell a firearm to a straw
purchaser, or an individual posing as a Straw Purchaser, as that term
is defined below, or
otherwise in violation of Federal, Georgia State or local law or
regulation, with the determination
that a straw purchase or other violation has occurred to be made by
the Special Master for sales
made from the date of this Agreement forward, $1,000 of the amount of
the bond shall be
forfeited as a penalty and damages. For a second violation the amount
to be forfeit shall be
$2,000, and for a third violation, $5,000. Said amount shall become
immediately payable to the
City and the bond shall be promptly restored to its full amount after
any violation.
For purposes of this agreement, a "Straw Purchase" shall have
occurred if, as determined by the Special Master:
(1) (i) any buyer of a firearm from A-1 or AAA is arrested for,
indicted for, or pleads guilty to a violation of either 18 U.S.C. §
922(a)(6) or 924(a)(1)(A) on the
grounds that such person made a false statement on ATF Form 4473 that
such person was the
"actual buyer" of the firearm sold and (ii) a reasonable person would
have recognized at the time
of sale that a straw purchase was occurring;
(2) Review of videotapes or store records or other monitoring
by the Special Master pursuant to subparagraph (b) or (c) of this
paragraph indicates that a straw
purchase has occurred and that a reasonable person would have
recognized at the time of sale
that a straw purchase was occurring or
(3) a sale is made to an investigator who is conducting a
"simulated straw purchase," as that term will be defined for A-1 and
AAA by the Special Master.
g. The Special Master shall report in full his or her findings, at
least each quarter after being appointed, to the parties.
* 4. In order to facilitate the prompt entry of the Injunction, the City
and defendants A-1 and AAA shall submit to the Georgia Court a joint
application for the entry of
the Injunction in the Georgia Action within 10 days after the
execution of this Stipulation and
Settlement Agreement. Defendants agree not to move to modify or
vacate the injunction other than
jointly with the City.
* 5. In the event the Georgia Court fails or refuses to issue an
injunction within 60 days of the filing of the Georgia Action, which
date may be extended by the
City, or the Injunction issued differs materially from that agreed to
by the parties hereto, the City
shall discontinue the New York Action without prejudice and
subparagraphs (a) through (g) of
paragraph 3 of this Stipulation and Settlement Agreement shall remain
valid contractual obligations
between the parties, enforceable as a contract in any court having
personal and subject matter
jurisdiction.
* 6. The Georgia Court shall retain continuing jurisdiction over the
parties and the subject matter of the Stipulation and Settlement
Agreement to enforce the terms of
the Injunction as against defendants A-1 and AAA, including
enforcement through the imposition
of sanctions for contempt of court with respect to any knowing and
willful failure to comply with
the Injunction. Other than the foregoing, and the review of practices
of and decisions by the Special
Master, the proceedings in the Georgia Action shall be stayed.
* 7. This training and monitoring duties of the Special Master in respect
of each defendant, and the requirement to maintain a performance bond
set forth above, shall
terminate upon attainment by that defendant of three consecutive
years after the posting of the bond
described in subparagraph 3(e), of full compliance by such defendant
and each of its owners,
employees and agents, with all applicable firearms laws and
regulations and with subparagraphs
3(a) through (g) of this Stipulation and Settlement Agreement as
certified in writing by the Special
Master. Notice of any violation must be made by the Special Master to
the defendant within the
three year period above described regardless of the type of violation
in order for the termination not
to take effect. Upon such certification, the parties hereto shall
jointly move the Georgia Court to
dismiss the Georgia Action.
* 8. Except as provided in subparagraph 3(f) with respect to the
performance bond, or for a breach of this Stipulation and Settlement
Agreement, this Stipulation
and Settlement Agreement shall not be the basis for the award of
damages to any party.
* 9. Except as expressly reserved and stated herein, the plaintiff does
hereby release and forever discharge A-1 and AAA, and A-1 and AAA
release and discharge the
City, of and from any all claims, actions, causes of action, demands,
rights, damages, costs, loss of
service, loss of use, expenses, and compensation whatsoever
(hereafter, "Claims"), which the
parties now have or which they may hereafter have on account of or in
any way growing out of, any
and all known and unknown, foreseen and unforeseen damages and the
consequences thereof
relating to or resulting from the matters set forth in the complaint
as above-styled, provided that
Claims, if any, arising out of firearms sold after the date of this
Stipulation and Agreement are not
released. It is expressly understood and agreed that this release is
in full accord and satisfaction of,
and in compromise of, disputed claims and that said release hereof is
not an admission of liability,
but is made for the purpose of avoiding future litigation between the
parties. The defendants deny
liability for any damages due the plaintiff or citizens of the City
of New York and intend merely to
buy their peace. This Stipulation and Settlement Agreement contains
the entire agreement between
the parties hereto, and that the terms of this Agreement are
contractual and not a mere recital.
* 10. Neither this Stipulation and Settlement Agreement, nor evidence of
the negotiation of or performance of the Stipulation and Settlement
Agreement may be introduced
in any proceeding for any purpose (other than the enforcement of its
terms), including establishing
that a New York court has personal jurisdiction over defendants A-1 and
AAA.
The parties intending to be legally bound this 26th day of July,
2006, have caused
this Agreement to be executed by setting their hands and seals as follows.
MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
Attorney for Plaintiff
100 Church Street, Rm. 3-158
New York, New York 10007
(212) 788-1324
By: Eric Proshansky
A-1 Jewelry & Pawn, Inc.
By: Earl Driggers
____________________________________
Greg L. Driggers d/b/a AAA Gun
& Pawn Brokers