A Lake County judge has ruled families of victims of the 2022 massacre at a Fourth of July parade in Highland Park can use a law enacted by Illinois Democrats in 2023 to sue firearms maker Smith & Wesson and essentially punish the arms maker for the actions of the accused murderer, because the company allegedly illegally marketed its products to allegedly entice the accused shooter to use a Smith & Wesson rifle to carry out the mass shooting.
On April 1, Lake County Judge Jorge L. Ortiz rejected attempts by Smith & Wesson to dismiss 25 consolidated lawsuits, allowing the bulk of claims in the lawsuits to move forward.
"Here, Plaintiffs have alleged sufficient facts to conclude that Smith & Wesson's marketing strategies of targeting younger demographics and promoting unlawful military type assaults created a foreseeable risk of injury to Plaintiffs," Ortiz wrote in his decision.
"The Complaints allege that Smith & Wesson's deceptive and unfair marketing practices would induce its target audience to purchase its product and be utilized in a mass shooting or gun violence, particularly considering the increasing number of highly publicized mass shootings that have occurred across the United States.
"... In this case the allegations in the Complaint assert that Defendants, by their act, contributed to risk of harm to Plaintiffs. Their claims are not premised upon the theory that Smith & Wesson failed to act, but that they breached a duty of reasonable care by affirmatively acting in a manner that unreasonably exacerbated a risk of harm."
The lawsuits have been pending in court since 2022, when a collection of families from Highland Park filed them 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.
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.
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.
The lawsuits have been brought by attorneys from some of the top class action law firms in Chicago and elsewhere in the U.S., including the firms of Romanucci & Blandin, of Chicago; Edelson P.C., of Chicago; and Paul Weiss Rifkind Wharton & Garrison, of New York.
They are also joined by lawyers from some of the country's leading supporters of gun control, including Everytown USA and the Brady Campaign, who have made no secret of their intent to use such lawsuits to extract massive payouts from gunmakers to punish them for making the products ostensibly protected by the Second Amendment's guarantee of Americans' right to keep and bear arms.
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 maker over a mass killing.
The lawyers 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."
Smith & Wesson failed to move the lawsuits to federal court, where a federal judge also already ordered the company to pay more than $450,000 to the plaintiffs' attorneys for attempting to get the cases out of Illinois' famously plaintiff-friendly state courts, when the company allegedly knew it had no basis to do so.
And back in Lake County court, Judge Ortiz said the company also has failed to show why the lawsuits shouldn't proceed.
In the ruling, Judge Ortiz - who is a registered Republican, according to state election records - said he believed plaintiffs had done enough to show that Smith & Wesson had violated Illinois' state consumer fraud and deceptive practices law by allegedly knowingly marketing their firearms in ways the company should have known would encourage "thrill-seeking young men" to carry out acts of violence and mass death.
The judge rejected Smith & Wesson's claims the lawsuit should be disallowed, both under a prior court decision which had rejected the city of Chicago's attempt to sue gun maker Beretta for contributing to a "public nuisance" of gun violence and under a federal law which was designed to shield firearms makers from lawsuits over the acts of criminals who use their weapons to commit crimes.
In the ruling, Ortiz said he believed the Highland Park lawsuits were not an attempt by the plaintiffs to use the courts to punish Smith & Wesson for Crimo's actions, but rather represented a claim narrowly targeted at the company's marketing strategies, which the judge agreed appeared to increase the risk that people like Crimo might use Smith & Wesson weapons to carry out such acts.
The judge also said he did not believe federal law should disallow the lawsuits. In the ruling, Ortiz noted the federal law includes exceptions for legal actions against gunmakers who violate state or federal laws.
In this case, Ortiz said, Smith & Wesson is accused of violating Illinois' state law forbidding gun makers from certain marketing tactics designed to make their weapons more appealing to young men seeking to engage in military-style targeted actions or assaults.
Smith & Wesson had argued that law should be inapplicable to this case. The company noted the state law in place in 2022 did not include such language. Rather, Illinois' Consumer Fraud and Deceptive Practices law was amended in 2023, in the wake of the Highland Park shooting, to explicitly include anti-gun marketing language.
At the time the law, known as the Firearms Industry Responsibility Act (FIRA) was passed, Illinois Democrats said they intended for the law to be used by trial lawyers to attack gun makers in court.
However, when the FIRA law was enacted, Democratic lawmakers included a statement indicating lawmakers believed the new law was merely clarifying that the old law always included such intent.
Ortiz said that statement of intent was sufficient to allow the 2023 law to be used to sue Smith & Wesson under state law for actions that occurred in 2022, under the exception expressed in the federal law.
In his ruling, Ortiz explicitly declared the FIRA law to be constitutional.
Smith & Wesson had argued the law violated both its First Amendment speech rights and infringed on the Second Amendment, by essentially limiting the ability of Illinoisans to learn about weapons they may wish to acquire.
Ortiz acknowledged the law could make it all but impossible for gun makers to market their products in Illinois and make it more challenging for Illinoisans to learn about weapons they may wish to purchase.
But the judge said the Illinois law still doesn't violate the Second Amendment, because it doesn't stop Illinoisans from purchasing and owning guns.
The judge further said the law doesn't infringe the First Amendment, because the state was acting lawfully to regulate and limit "commercial speech," which courts have held generally enjoys less protection than individual speech.
Ortiz's ruling was hailed by the Highland Park families' attorneys. In a joint statement, attorneys from anti-gun activist organization Everytown and the firms of Romanucci & Blandin and Wallace Miller said:
“Today’s historic decision sends a clear message that the gun industry does not have carte blanche to engage in irresponsible marketing of assault rifles, without any concern for the obvious dangers of such marketing.
"... We are steadfast in our fight to hold the defendants accountable for the damage their conduct has caused, and look forward to the truth coming out as this case proceeds to discovery.”