Saying the Second Amendment has nothing to do with the case, a federal appeals court has says Smith & Wesson will need to defend itself in Lake County court against lawsuits demanding the gunmaker pay for seven deaths, multiple injuries and trauma inflicted when a shooter used a Smith & Wesson firearm to open fire on the July 4 parade in Highland Park in 2022, a federal appeals court has ruled.
On April 8, just four days after oral arguments in the case, a three-judge panel of the U.S. Seventh Circuit Court of Appeals quickly rejected Smith & Wesson's contentions the legal action seeking a potentially massive payout should belong in federal court.
Smith & Wesson has been in court in Illinois since 2022, when families of victims of the July 4 Highland Park massacre filed several lawsuits against the gun maker in Lake County Circuit Court.
The lawsuits also named as defendants the accused shooter, Robert Crimo III, as well as his father, Robert Crimo Jr., and two firearms stores believed to have been involved in Crimo III's purchase of the weapon he allegedly used in the shooting, a Smith & Wesson M&P (Military & Police) semiautomatic rifle.
The lawsuits, however, are intended primarily to hold Smith & Wesson liable for the shooter's horrific actions. The lawsuits claim the gunmaker should not have sold a weapon that could be used in such a fashion, and should not have marketed its weapons in ways to make them more appealing to young men who may carry out such massacres.
The lawsuits are similar to those successfully waged against firearms maker Remington over the school killings at Sandy Hook Elementary School in Connecticut in 2012, in which 28 people, including numerous children, were killed. That legal action, brought on behalf of family members of the Sandy Hook victims, resulted in a $73 million settlement with Remington, marking the first time plaintiffs had successfully secured such a payment from a firearms maker over a mass shooting.
Many of the same trial lawyers who led the Sandy Hook case have also signed on to represent plaintiffs in the Highland Park action.
The Highland Park plaintiffs are represented by attorneys from law firms from Chicago and elsewhere, including Romanucci & Blandin, of Chicago; Edelson P.C., of Chicago; and Paul Weiss Rifkind Wharton & Garrison, of New York.
They are joined by anti-gun activist organizations, including Everytown USA and the Brady Campaign.
Those organizations have prominently campaigned for policies to severely restrict or outlaw ownership of firearms in the U.S. And they have made no secret of their intent to use these kinds of lawsuits to financially punish, or even bankrupt, gun makers.
Smith & Wesson has noted the goals behind the lawsuits against them, saying the litigation amounts to attempts to use plaintiff friendly state courts in Democrat-dominated states, like Illinois, to circumvent federal laws and regulations of firearms, and trample Second Amendment rights by punishing gunmakers for the acts of criminals.
In response to the Lake County lawsuits, Smith & Wesson sought to remove the cases to federal court.
In the filings, Smith & Wesson claimed they act as so-called "federal officers," given their close regulation under federal law by the Bureau of Alcohol Tobacco and Firearms (ATF).
They further argued the lawsuits partially hinge on claims that Smith & Wesson improperly sold and marketed a "machine gun," even though the M&P rifle allegedly used by Crimo III is not designated as an illegal automatic weapon under federla law or federal rules.
Smith & Wesson asserted that allowing a judge in Illinois state court 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, not used by the U.S. military, or any army anywhere in the world, and not considered "machine guns" by any regulatory body.
U.S. District Judge Steven Seeger, however, rejected all of those arguments, saying the case belongs in Lake County Circuit Court simply because the plaintiffs and anti-gun activists claim in their filings that Smith & Wesson violated state consumer fraud and deceptive practices laws by engaging in "deceptive conduct" in advertising the rifle allegedly used by Crimo III.
Seeger said that claim has nothing to do with federal regulation of firearms.
Smith & Wesson appealed, but quickly met an even stronger ruling from the Seventh Circuit. The court had heard oral arguments in the case on April 4, and delivered the decision four days later, an unusually very rapid turnaround for an appeals court.
The decision was authored by Seventh Circuit Judge Frank Easterbrook, with concurrence from circuit judges David Hamilton and Joshua P. Kolar.
Kolar is the court's newest member, appointed in 2024 by President Joe Biden.
Easterbrook has gained notoriety in recent years for repeatedly ruling to uphold state and local bans on so-called "assault weapons," despite U.S. Supreme Court decisions that broadened the individual right to keep and bear arms. Easterbrook notably joined in a decision in 2023 to allow Illinois' state "assault weapons" ban to take effect, ruling that the Second Amendment doesn't stop the state from banning weapons, so long as the weapons are "dangerous" and roughly similar to those used by the U.S. military.
In that ruling, Easterbrook and his colleague, Judge Diane P. Wood, used the similarities between the AR-15 semiautomatic rifle and its fully automatic cousin, the M-16, which was once used by the U.S. military, to declare the state could ban the AR-15 and any other semiautomatic weapons, so long as those weapons were roughly similar to "military-grade" automatic weapons banned under federal law.
In the new ruling against Smith & Wesson, Easterbrook declared neither Illinois' gun ban law nor the Second Amendment "matter to the current litigation."
Easterbrook scoffed at the notion that gun makers can't be sued in state court for the actions of criminals using their weapons.
While noting that the ATF refers to gunmakers as "partners" in its official communications, Easterbrook said the relationship between the ATF and Smith & Wesson is no different than that of any other company whose products are subject to federal regulation, including pharmaceutical manufacturers, food producers, automakers and tobacco companies.
"Chicken farmers whose birds lay eggs that contain salmonella, drug producers whose products are inadequately tested, auto manufacturers whose brake systems fail - these and many more are regularly sued in state court under state law," Easterbrook wrote. "They may remove under (federal law and court rules) if the parties are of diverse citizenship, but it is inconceivable that the existence of federal regulation would allow removal ... — whether or not a given agency refers to the objects of regulation as its 'partners.'”
Easterbrook's ruling does not explain how those examples should legally be considered the same as a company being sued for the criminal acts of someone using their product to harm others.
Easterbrook, however, continued to blast Smith & Wesson, zeroing in on the similarities between the M&P rifle allegedly used by Crimo III and the often pilloried AR-15 semiautomatic rifle used in other mass shootings.
Easterbrook said Smith & Wesson cannot prove it acted under any direction by any federal agencies in making or selling its M&P rifle, which he called an "AR-15 style weapon."
"Smith & Wesson does not contend that ATF directed it to make any AR-15 style weapon or compelled it to include in the M&P15 the rapid-fire features that Crimo’s victims call wrongful," Easterbrook wrote. "Nor does Smith & Wesson contend that ATF directed it to advertise the M&P15 in the way that it did.
"Those choices were Smith & Wesson’s. That is some distance from 'acting under' the ATF."
Easterbrook also noted Smith & Wesson attempted to send the action to federal court, even though the Crimos did not respond to the company's request to consent to the removal to federal court.
Easterbrook noted such consent is typically required for removal and underpinned the plaintiffs' demands that the case be returned to Lake County state court.
Smith & Wesson asserted its legal grounds for removal did not require the Crimos to consent.
Easterbrook and his colleagues, however, said they believed Smith & Wesson had acted improperly, filing an "unjustified removal and appeal." They directed Judge Seeger to examine whether this should also now force Smith & Wesson to pay the plaintiffs' attorneys costs and fees associated with the company's attempt to move the case to federal court and then appeal.
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.