CHICAGO (CN) — With the legality of its products on the line, gun manufacturer Smith & Wesson went before the Seventh Circuit Court of Appeals on Thursday, hoping to keep a dozen consolidated lawsuits against it in federal court.
The plaintiffs in those consolidated cases are individuals affected by the July 4, 2022 mass shooting in the Chicago suburb of Highland Park, including survivors and the loved ones of the seven people killed. The shooter in that massacre fired dozens of rounds from a Smith & Wesson assault rifle into Highland Park's Independence Day celebration, and in September 2023 U.S. District Judge Steven Seeger ruled the plaintiffs could keep their claims against the gunmaker — alleging violations of Illinois fraud law, negligence, deceptive trade practices and intentional infliction of emotional distress — in state court. They aim to keep them there.
The gunmaker argues that whether these cases are tried in federal or state court could have a profound downstream affect on the regulatory status — and thus marketability — of its "M&P" line of assault rifles. It fears a state court might declare the weapons 'machine guns' under the National Firearms Act of 1934. Machine guns are strictly controlled by that act, with the intent and effect of keeping them out of civilian hands.
It's a concern Smith & Wesson's attorney Ed Scheideman mentioned in his arguments before the three-judge appellate panel on Thursday. He argued, as the gunmaker did in its appellate brief, that putting the cases before an Illinois state judge would undermine the authority of federal lawmakers and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
"This case is about an attempt to use a state court to overturn a 60-year approach to classifying firearms under the National Firearms Act, a uniquely federal function approved by Congress and implemented by the ATF," Scheideman said.
Smith & Wesson's appellate brief pointed out that the ATF determined semiautomatic AR-15 style weapons are not NFA-controlled machine guns in the 1960s. Any case challenging that determination, Scheideman said, should go to the ATF itself, not a state judge.
"It's a case really directed to the ATF because it goes into their authority and province on classification, and frankly Congress.' It's a fundamentally federal issue that the state court is being asked to decide," Scheideman said.
The question of classification for the M&P assault rifles stems from the ease with which the suspected July 4, 2022 mass shooter, then-21-year-old Robert Crimo III, was able to legally obtain his own. Though Crimo's father also played a role by sponsoring his underage son's purchase of the Smith & Wesson rifle — despite the boy's history of violent incidents — the Highland Park plaintiffs allege Smith & Wesson violated Illinois fraud and deceptive trade laws by marketing "weapons of war" to civilians.
The plaintiffs in the lead complaint also claim Smith & Wesson specifically advertised its M&P rifle line to young men like Crimo who are enamored at the idea of combat. The "M&P" title itself stands for "military & police," despite active duty soldiers not using the rifle line, and only a few law enforcement offices nationwide making use of them.
"By cloaking products generally sold to the public the plaintiff in the mantle of revered members of the U.S. military and law enforcement, Smith & Wesson marketing suggests that buying these products will allow civilians to act like service members and engage in combat," the lead plaintiff's complaint claimed.
That plaintiff, and many others, only alleged state-level claims and filed those claims in state court in fall of 2022, but Smith & Wesson tried to remove the cases to federal court that November. The gunmaker argued the ATF had already determined its assault rifles were not machine guns, and that the Bureau's authority to determine what counts as a machine gun or military weapon under the National Firearms Act pre-empted the claims of Illinois fraud law violations.
The company also argued it had a "special relationship" with the ATF that was subject to federal jurisdiction, as it was the body enforcing the Bureau's determination on which weapons qualify as machine guns. In simpler terms, it didn't sell any weapons the ATF considered banned under the NFA.
The judge didn't buy it when he issued his ruling on the issue almost a year later.
"The argument goes nowhere. All regulations are mandatory. Regulatory compliance is not the same thing as aiding or helping a federal officer carry out his official duties," Seeger wrote in his order to move the cases back to state court.
If a state court determines Smith & Wesson has fraudulently marketed military weapons for civilians, it could call into question those weapons' legality nationwide. That could also have profound consequences for current Smith & Wesson M&P assault rifle owners. Appellate Judge David Hamilton, a Barack Obama appointee, pointed this out to the Highland Park plaintiffs' attorney Alla Lefkowitz while she was delivering her own arguments as to why the cases should stay in state court.
"You would agree that you are asking for a declaration, in one form or another, that the defendant's product is a machine gun under the National Firearms Act?" Hamilton asked.
Lefkowitz said that her plaintiffs never sought that kind of official declaration from the court, but Hamilton waved off the point as a "quibble."
"You're alleging that's what they are and that's one of the reasons why the marketing campaign was deceptive, correct? I don't want to quibble about this," Hamilton said, with Lefkowitz conceding the point.
"So the theory is that millions of Americans then are committing a crime by possessing those products, correct?... that is the logical consequence of the argument you are making, correct?"
"Correct," Lefkowitz responded.
Hamilton went on to point out that, as Smith & Wesson argued, the federal government hasn't enforced NFA provisions against Smith & Wesson AR-15 style rifles for decades, and asked if there was any way the plaintiffs could prevail without pressing the machine gun issue. Lefkowitz said they would still argue that the gunmaker's marketing falsely advertised a false connection with police and soldiers in order to draw in adolescent boys.
"We have a number of additional theories of liability under the deceptive claim. Specifically... is the fact that Smith & Wesson deceptively marketed its firearm as being associated with military and police when it is in fact not," Lefkowitz said.
"Plaintiffs can get all the relief they are seeking if the court simply rules in our favor on that point," she added.
The appellate panel, rounded out by Ronald Reagan appointee Judge Frank Easterbrook and Joe Biden appointee Joshua Kolar, took the case under advisement but didn't say when they'd issue a ruling.
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