Smith & Wesson is asking a federal judge to transfer a series of state court class action lawsuits seeking to hold the gunmaker liable for deaths and injuries resulting from the Independence Day parade mass shooting in Highland Park, as they say the lawsuits represent an attempt to use class action lawsuits in state court to sidestep federal firearm regulations and strip gun owners of their Second Amendment rights.
At least 10 different lawsuits, all filed in Lake County Circuit Court, look to impose liability on the world’s largest maker of handguns and rifles, a product line that includes the weapon a shooter allegedly used July 4 to kill seven and wound dozens more among those assembled to watch or participate in the parade in the North Shore suburb.
Among the law firms bringing litigation are Romanucci & Blandin, of Chicago; Edelson P.C., of Chicago; and Paul Weiss Rifkind Wharton & Garrison, of New York. They are joined by attorneys from national anti-gun public policy groups Everytown USA and the Brady Campaign. The lawsuits were filed on behalf of victims of the shootings, including those wounded and killed, and family members and others who witnessed the shootings or were otherwise traumatized.
In addition to Smith & Wesson, the lawsuits also name as defendants the accused shooter, Robert Crimo III; Crimo’s father, Robert Crimo Jr.; and two gun sellers believed to have been the source of the weapon Crimo III allegedly used, identified as BudsGunShop.com LLC and Red Dot Arms Inc.
The company filed several notices of removal regarding the lawsuits through its representatives, Swanson, Martin & Bell, of Chicago; and DLA Piper, of Chicago and Washington, D.C.
In those motions, all dated Nov. 7, Smith & Wesson said the federal claims asserted against it “are predicated and rely upon Smith & Wesson’s alleged violations of a federal statute — the National Firearms Act of 1934,” specifically that the gun in question “was actually an illegal ‘machine gun’ under the NFA and federal regulations.”
Smith & Wesson further said plaintiffs accused it of deceptive marketing by failing to use the NFA designation and making, shipping and selling such guns without “satisfying various transfer, approval, tax, registration and other NFA requirements — requirements that apply only if (Military & Police) semi-automatic rifles are ‘machine guns’ under the NFA as a matter of law.”
In arguing for removal, Smith & Wesson said gun makers have a “unique partnership” with the Bureau of Alcohol, Tobacco, Firearms and Explosives, including “delegation of specific law enforcement functions by Congress and the ATF to firearm manufacturers,” such as keeping records police use to trace weapons and training federal law enforcement officers.
The company further painted plaintiffs’ state law claims as “an artfully pleaded attempt to have a state court improperly overturn the ATF’s determination that semi-automatic rifles, like the M&P rifle, are not ‘machine guns’ subject to the regulatory requirements of the NFA. Such a legal determination would sidestep the statutory regime enacted by Congress to classify firearms in this regard. The only vehicle through which plaintiffs could obtain such a determination is by exhausting administrative remedies made available through NFA regulations and a federal claim under the Administrative Procedures Act.”
Smith & Wesson said the ATF has “consistently treated such firearms as outside the scope of the NFA” and argued that applying the plaintiffs’ logic would allow a state judge to determine an AR-type rifle meets the NFA’s “machine gun” definition, and therefore is illegal, which “would have the absurd effect of making instant criminals out of millions of law-abiding AR-type rifle owners."
Questions of federal law are central to the plaintiffs’ requested recovery, Smith & Wesson said, pointing to several state and federal court decisions establishing “state court litigation cannot be used to undermine Second Amendment rights and seek relief that is inconsistent with the policies underpinning the Second Amendment.”