(CN) — A federal judge won’t stand in the way of the New Jersey Attorney General's Office’s effort to investigate how gun manufacturer Smith and Wesson marketed its firearms for home defense and personal protection.
Last year, hoping to head off a subpoena sought by the New Jersey AG’s office, Smith and Wesson turned to the federal courts, arguing its constitutional rights were being infringed: The New Jersey AG’s office was hostile to guns and was using the subpoena to get back at the manufacturer, the gun company said.
But in a 10-page ruling Monday, U.S. District Judge Julien Neals, a Joe Biden appointee, declined to get involved. Noting the litigation in state court over “a challenge to the state’s contempt process,” the judge dismissed Smith and Wesson’s federal complaint.
“[There] is nothing that precludes Smith and Wesson from raising their constitutional concerns in the New Jersey state courts, as evidenced by their multiple state court filings before the New Jersey Superior Court, Appellate Division and Supreme Court,” Neals wrote.
According to the judge’s ruling, Smith and Wesson currently has an appeal pending before the New Jersey Supreme Court.
The New Jersey Attorney General issued a subpoena in October 2020 seeking copies of the Massachusetts-based company’s advertisements that spoke of the benefits of using a firearm for home defense, for instance, and how the company tested those claims. Smith and Wesson responded with a lawsuit Dec. 15.
In March, the gunmaker amended its complaint, telling the federal court what the AG’s office was trying to get it to do was violating its First Amendment rights. In late May, the New Jersey Superior Court told Smith and Wesson to respond to the subpoena.
“The Subpoena expressly targets Smith & Wesson’s opinions (such as whether the concealed carry of firearms enhances lifestyle or whether firearms help citizens defend their homes) and thereby aims to chill the company’s speech,” the company wrote on July 30 arguing for a temporary restraining order.
According to Dru Stevenson, law professor at South Texas College of Law Houston, the judge’s order dismissing the federal case is unsurprising.
The gun company is “trying to do an end run and go into federal court to get something that they already couldn't get in state court,” Stevenson said.
But Stevenson sees the New Jersey attorney general’s approach is one that he said could be replicated in other blue states. The state AG’s action follows the litigation brought by the families of the Sandy Hook school shooting victims’ lawsuit against Remington Arms, seeking to hold the company responsible for how it marketed the rifle used in that shooting.
For years, litigation surrounding firearms liability have been precluded by the Protection of Lawful Commerce in Arms Act (PLCAA), federal legislation passed in 2005, Stevenson said.
But in 2019, the U.S. Supreme Court declined to pick up the Sandy Hook families’ lawsuit when Remington appealed the case, saying federal law prevented the case from moving forward.
That case pending in Connecticut is now in discovery with a trial scheduled for September 2022. On July 27, Remington officially offered the Sandy Hook families about $33 million to settle the lawsuit.
“There's something going on with the gun companies that they are scared to death of having to do discovery,” Stevenson said, adding that the material could merely be something embarrassing or some kind of “smoking gun” memo.
Stevenson said at the federal level, the Consumer Product and Safety Commission is precluded from, say, launching recalls on firearms but it is within the power of state attorneys general to look into consumer complaints of defective products or fraudulent advertising.
Representatives for Smith and Wesson did not immediately return requests for comment about the dismissed litigation.
Professor Timothy Lytton of Georgia State University College of Law said it’s a “powerful development” that a state attorney general has gotten involved in investigating questions over firearm manufacturer’s marketing practices.
In the time since the passage of the PLCCA, the way the law the eroded is through private individuals bringing lawsuits, the most notable the Sandy Hook families’ lawsuit. But an attorney general's office has more resources and state power, Lytton said.
It’s a pattern Lytton said he’s seen in other issues, such as opioid lawsuits, litigation over big tobacco and clergy sex abuses cases.
“We've seen that this kind of phenomenon of trying to regulate industry through litigation occurs, both through private efforts of individual plaintiffs victims who bring civil lawsuits on their own behalf, and once those lawsuits generally get off the ground, we often see public officials come into the picture,” Lytton said.
The New Jersey Attorney General's Office did not immediately return requests for comment.
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