A federal judge has rejected an attempt by plaintiffs' lawyers to deny Smith & Wesson the right to appeal the judge's ruling that lawsuits against the gunmaker, all of which assert the company should be held responsible and made to pay for the 2022 Highland Park massacre, belong in Illinois' plaintiff-friendly state courts.
On Dec. 15, U.S. District Judge Steven Seeger denied the motion by plaintiffs to lift his hold on proceedings in the lawsuits, until the U.S. Seventh Circuit Court of Appeals can decide if Seeger erred in finding Smith & Wesson must defend itself in Lake County Circuit Court, rather than federal court.
"Remanding the case now, before the Seventh Circuit considers the appeal, would take away a statutory right created by Congress. Cutting off the opportunity to appeal would undermine the statutory provision that authorizes appeals," Seeger wrote.
"In effect, Plaintiffs ask this Court to pull the appellate rug out from under the Seventh Circuit’s feet, and end the appeal before it gets off the ground. This Court is not inclined to end an appeal before it starts."
The decision comes as the latest step in proceedings that could, in part, decide whether plaintiffs' lawyers - including many who set the template for potentially big money lawsuits against firearms manufacturers over mass shootings - can again force a massive payout from a gunmaker in the wake of a tragedy perpetrated by someone using a semiautomatic rifle, dubbed by gun control advocates as an "assault weapon."
In September 2022, a number of families from suburban Highland Park filed lawsuits in Lake County court in Waukegan against Smith & Wesson, the world's largest maker of handguns and rifles, saying the company should pay for allegedly marketing its weapons in such a way that it enticed the alleged shooter, Robert Crimo III, to carry out a mass shooting that killed seven people at the Highland Park Independence Day Parade in 2022.
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.
While agreeing that Crimo III pulled the trigger and killed and injured those at the parade, and conceding that he acquired a Smith & Wesson M&P (Military & Police) rifle allegedly used in the shooting, through his father, the plaintiffs say Smith & Wesson must also bear large responsibility for the tragedy.
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 by lawyers from some of the country’s leading supporters of gun control and vocal advocates of state laws and federal regulations to ban a long list of guns and otherwise assail American's Second Amendment right 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, following a pattern used recently to secure a $73 million settlement from firearms maker Remington, in lawsuits filed over the 2012 school shooting at Sandy Hook Elementary School in Connecticut.
Smith & Wesson responded by removing the case to federal court, arguing the lawsuits are an "artful" attempt to secure court orders that would conflict with federal law and infringe on the Second Amendment.
“State court litigation cannot be used to undermine Second Amendment rights and seek relief that is inconsistent with policies underpinning the Second Amendment,” Smith & Wesson argued.
Along with those grounds, Smith & Wesson asserted the cases belong in federal court because firearms manufacturers enjoy a special relationship as an "officer" with the federal government, under the special regulatory framework established by federal firearms laws.
Under that so-called "federal officer exemption," Smith & Wesson asserted it should have the right to have the cases heard in federal court, because they claim they are being sued for allegedly violating those federal laws by allegedly selling an illegal weapon to Crimo III.
Seeger rejected all of Smith & Wesson's attempts to keep the cases in federal court, and in September sent the lawsuits back to Lake County court.
However, Smith & Wesson appealed the case to the Seventh Circuit.
Seeger noted ordinarily decisions such as his September order on whether to send the cases back to state court can't be appealed. But the judge said the "federal officer exemption" also gives Smith & Wesson the legal right to appeal.
After Smith & Wesson appealed, Seeger put his decision, and the lawsuits, on hold, until the Seventh Circuit weighs in.
The plaintiffs, however, still tried to defeat the move to appeal, asserting that, because Smith & Wesson has "little to no chance on appeal ... the sensitivities of the case" mean the lawsuits should be allowed to proceed in Lake County court, even while Smith & Wesson asks the appeals court to reverse Seeger's order sending them back to Lake County.
Seeger said he agreed that Smith & Wesson's appeal will likely fail.
But he said he would be violating the law if he denied Smith & Wesson their day before the Seventh Circuit, as guaranteed by federal law.
"Plaintiffs aren’t asking this Court to preserve the status quo while the Seventh Circuit considers the appeal. Plaintiffs are asking this Court to ship the case back to state court so that the Seventh Circuit can’t consider the appeal.
"Congress expressly authorized appeals of remand orders when the removal is based on the federal officer statute, and that right exists even if Defendants are playing a weak hand. A right to an appeal is a right to an appeal, even if the appeal is likely to be a loser.
"The right to an appeal is not confined to appeals that look like winners."
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.