A federal judge says a collection of lawsuits against gunmaker Smith & Wesson over the July 4, 2022, Highland Park massacre belong in Lake County court, and not federal court, in part because the lawsuits, in the judge’s view, don’t amount to a creative attempt by anti-gun activists and their lawyers, acting in the name of victims of the shootings, to sidestep federal jurisdiction and wage war against Second Amendment rights by punishing gunmakers for the actions of criminals.
In September 2022, a collection of families from Highland Park filed lawsuits in Lake County Circuit Court against Smith & Wesson, the world’s largest maker of handguns and rifles.
The lawsuits all asserted Smith & Wesson should be made to pay for allegedly marketing its semi-automatic weapons to young men to make it more likely they would commit a mass shooting. In these cases, the lawsuits focus on the mass shooting that killed seven people at the Highland Park Independence Day Parade in 2022.
U.S. District Judge Steven Seeger
| U.S. District Court for the Northern District of Illinois
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 firearms stores believed to have been involved with Crimo III’s purchase of the weapon he allegedly used, identified as BudsGunShop.com LLC and Red Dot Arms Inc.
Crimo III has been charged with 117 counts in connection with the shootings, including three counts for each victim. He faces charges of murder, attempted murder and aggravated battery against the victims. He remains in Lake County Jail awaiting trial.
Crimo Jr. has also been charged in connection with the massacre and also awaits trial.
However, while conceding Crimo III pulled the trigger, and that his father is accused of helping him obtain the weapon allegedly used in the shooting – a Smith & Wesson M&P (Military & Police) semiautomatic rifle – the plaintiffs assert Smith & Wesson must also be made to pay for making and marketing the weapon in the first place.
Backing the plaintiffs in their lawsuits are attorneys from some of the top class action law firms in Chicago and elsewhere in the country, including Romanucci & Blandin, of Chicago; Edelson P.C., of Chicago; and Paul Weiss Rifkind Wharton & Garrison, of New York.
They are joined, though, by lawyers from some of the country’s leading supporters of gun control and vocal advocates of state laws and federal regulations that have been struck down by federal courts or are being challenged as unconstitutional violations of the Second Amendment rights of the people to keep and bear arms.
These include lawyers from national anti-gun policy groups Everytown USA and the Brady Campaign.
When the lawsuits were announced in 2022, representatives of those organizations made no secret about their intent to use the lawsuits to extract big money from Smith & Wesson, asserting the firearms maker bears responsibility for the mass shooting allegedly committed by Crimo III.
Erin Davis, an attorney at the Brady Campaign, specifically said the Highland Park lawsuits are intended to further their goal of stopping “the irresponsible and unlawful sale and marketing of weapons of war…”
The legal team behind the Highland Park lawsuits notably included a number of groups and law firms who also sued gunmaker Remington over the school shooting at Sandy Hook Elementary in Connecticut in 2012, which killed 28 people, including numerous children. That legal action resulted in a $73 million settlement from Remington, marking the first time plaintiffs had successfully secured payment from a gun manufacturer over a mass killing.
The legal team in the Highland Park case indicated they intend to use the Illinois lawsuits to replicate or exceed the Sandy Hook settlement in the name of “justice” and holding “one of the most powerful and profitable gun companies accountable for inspiring generations of mass shooters.”
After the lawsuits were filed, Smith & Wesson responded by seeking to remove the cases to federal court, where they believed they could neutralize the plaintiffs’ claims.
While the lawsuits leveled counts entirely under Illinois state law, Smith & Wesson asserted the lawsuits represented an “artful” maneuver to win court orders that would conflict with federal law and infringe on the Second Amendment, without directly assailing either.
Smith & Wesson argued the lawsuits’ claims against the gun maker relied on the plaintiffs’ claims that Smith & Wesson improperly sold and marketed a “machine gun,” even though the M&P rifle allegedly by used by Crimo III is not designated as an illegal automatic weapon under federal law or federal rules.
Smith & Wesson said the lawsuits represent an attempt by plaintiffs to “improperly overturn the (federal government’s) determination that semi-automatic rifles, like the M&P rifle, are not ‘machine guns’” subject to federal regulation.
Smith & Wesson asserted that allowing a state judge to rule that the company illegally marketed and sold “machine guns” would allow that judge to overrule federal law and instantly make “criminals out of millions of law-abiding … rifle owners” who possess M&P rifles or other similar semiautomatic weapons.
“State court litigation cannot be used to undermine Second Amendment rights and seek relief that is inconsistent with policies underpinning the Second Amendment,” the gun maker argued.
In his ruling, which began with a narrative recounting the events of July 4, 2022, in Highland Park, Seeger rejected Smith & Wesson’s claims that the lawsuits represent an attempt to sidestep federal law or the Second Amendment.
He said he did not believe the case belonged in federal court, because the judge said he did not believe the state law tort claims are preempted by the National Firearms Act of 1934, the law that Smith & Wesson said governs the definition of whether a firearm is a banned “machine gun,” or by the federal Administrative Procedures Act.
Essentially, the judge said, because neither the NFA nor the APA, alone or in combination, do not create a so-called “right of private action” – the legal standing to sue private parties – the plaintiffs are allowed to sue gun makers under Illinois’ consumer fraud and deceptive practices law and other state law claims, because the judge said plaintiffs don’t need to prove Smith & Wesson’s alleged conduct violated federal law to press their claims that Smith & Wesson’s alleged conduct “offended public policy.”
The judge noted plaintiffs have accused Smith & Wesson’s advertising of its products to lead potential buyers to believe M&P rifles were endorsed by U.S. military personnel, making the weapons appealing to people who might wish to carry out a mass shooting.
“… These allegations come before the allegations that Smith & Wesson’s conduct violated the NFA,” Seeger wrote. “And again, the allegations about deceptive conduct form a standalone theory that does not rely on federal law.
“Plaintiffs could prevail even if the jury never reaches a question of federal law.”
Smith & Wesson is represented in the action by attorneys from the firms of Swanson, Martin & Bell, of Chicago; and DLA Piper, of Chicago and Washington, D.C.