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* Background is here if you need it. Ari Scharg is one of the attorneys suing gun-maker Smith & Wesson over the Highland Park July 4th parade shooting…
Yesterday, the Seventh Circuit Court of Appeals REJECTED Smith & Wesson’s attempt to litigate the Highland Park Parade cases in federal court and ruled that they must instead move forward locally in Lake County where the plaintiffs filed them. This is a major loss for Smith & Wesson, a big win for the victims and our community, and reflects a broad shift of momentum we’re seeing across the country in gun cases.
For years, legislatures and our judicial system have refused to hold defendants like Smith & Wesson accountable when victims of mass shootings brought suit. But things are changing. During the Seventh Circuit hearing last Thursday, one of the panel judges cut off Smith & Wesson’s attorney within 30 seconds of his opening argument because he took issue with the way Smith & Wesson downplayed the shooting in its appellate brief, saying:
“You’re familiar in criminal cases, as we are with the concept of minimization. I’m tempted to take up some of your argument time listing the names of the seven people who were killed and the 48 who were wounded.”
I was floored (and deeply moved) by that statement, which set the tone for the entire hearing. And the decision itself not only handed the Highland Park plaintiffs a clear victory, but also invited them to seek fees from Smith & Wesson as a sanction for wasting time in federal court.
This ruling is part of a shift we’re seeing everywhere: while we are still a country with a strong Second Amendment, bad actors like Smith & Wesson no longer have carte blanche in marketing deadly weapons to disaffected kids using video-game style ads and “lone gunman” themes when they know exactly where that leads—again, and again, and again.
So these cases are coming back to Lake County where they belong. There’s a long road ahead but I promise you we will never run out of energy for this fight.
* The appellate court explains the background…
The legal theories advanced against Smith & Wesson rest on state tort law plus the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 to 505/12, and the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 to 510/7. The complaints assert (among other things) that Smith & Wesson should not have offered the M&P15 to civilians, because it is a machine gun reserved for police and military use under 18 U.S.C. §922(b)(4) and 26 U.S.C. §5845(b), and that if the civilian sale of the M&P15 is lawful the manufacturer still is liable because the weapon was advertised in a way that made it attractive to irresponsible persons (especially the young) seeking to do maximum damage in minimum time.
Smith & Wesson then tried moving the lawsuit to federal court and was rejected yesterday.
* Regarding the sanctions issue mentioned above, this is from the appellate decision…
One final observation. Both this court in Lu Junhong and the Supreme Court in BP v. Baltimore recognized that attempting to remove under §1442 would be attractive to many defendants who sought to sidestep the need for all defendants’ consent or wanted to obtain appellate review of any remand order. The Justices also saw that, when defendants yield to the incentive to misuse §1442 to get around §1447(d) and §1446(b)(2)(A), litigation will be delayed and become needlessly costly—other things that defendants may hope to achieve. Baltimore asked the Court to curtail those incentives by giving the statute a strained reading. The Justices replied that setting policy is for Congress, not the judiciary, but added:
Nor is it as if Congress has been blind to the City’s concerns. As the City itself acknowledges, thanks to §1447(c) a district court may order a defendant to pay the plaintiff’s costs and expenses (including attorney’s fees) if it frivolously removes a case from state court. Additionally, the Federal Rules of Civil Procedure allow courts to sanction frivolous arguments made in virtually any context […]
The district judge should consider whether Smith & Wesson must reimburse the plaintiffs’ costs and fees occasioned by the unjustified removal and appeal.
Oof.
* From Rep. Bob Morgan (D-Deerfield)…
Gun manufacturers like Smith & Wesson keep running to federal courts to protect them from accountability for their role in facilitating mass shootings and other gun-related deaths, and they keep losing. This 7th Circuit decision reaffirms that gun manufacturers cannot hide from their responsibility, and gun violence rests at their feet due to their deceptive marketing practices that have existed for decades. This case is deeply personal for the Roberts family, and also those of us who were present at the Highland Park Mass Shooting two years ago - this is a positive step for those looking for justice
posted by Rich Miller
Wednesday, Apr 10, 24 @ 2:21 pm
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Yes. A ray of sanity.
Comment by Norseman Wednesday, Apr 10, 24 @ 2:38 pm
== Smith & Wesson should not have offered the M&P15 to civilians, because it is a machine gun reserved for police and military use … ==
Point of fact - the M&P 15 is not a machine gun as that term is normally understood to mean a fully automatic firearm. It is a semi-automatic firearm (rifle) that requires the trigger be pulled each time to fire a bullet.
I tried clicking on the one link to read the rest of the appellate court’s reasoning, but the link came back to this story.
Comment by RNUG Wednesday, Apr 10, 24 @ 2:39 pm
I doubt any sanctions occur. Judges love talking tough about wasteful litigation steps, but never actually hold attorneys or their clients accountable. Rule of Professional Conduct 3.2 and Supreme Court Rule 137(a) are basically jokes.
A judge will put verbally wag their finger in an order, a bunch of attorneys on social media will get all worked up about a “benchslap” but there will be no real consequences for the behavior. The legal world keeps turning, and litigation keeps getting costlier and costlier, as it has for the past forever-many years.
Comment by Homebody Wednesday, Apr 10, 24 @ 2:44 pm
http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D04-08/C:23-3001:J:Easterbrook:aut:T:fnOp:N:3192600:S:0
Comment by Big Dipper Wednesday, Apr 10, 24 @ 2:52 pm
Did I get in before all the regularly scheduled goalpost-moving comments consisting of “But the important case for gun rights advocates to watch is in [xyz case scheduled a few months from now]”
But in all seriousness - this is a correct decision, with correct citations.
Comment by TheInvisibleMan Wednesday, Apr 10, 24 @ 2:53 pm
While it is early in the contest, Earps 1, Clanton 0.
Comment by Anyone Remember Wednesday, Apr 10, 24 @ 3:26 pm
wow, Easterbrook. thought he would not go this way.
Comment by Amalia Wednesday, Apr 10, 24 @ 3:29 pm
Advertising of guns should be banned, or at least severely restricted. Let those ads go the way of cigarette ads.
Comment by Demoralized Wednesday, Apr 10, 24 @ 3:36 pm
the part about Smith & Wesson stating that they are a kind of partner of ATF & getting slapped down for that is wonderful.
Comment by Amalia Wednesday, Apr 10, 24 @ 3:45 pm
Honest question, how can one prove “the weapon was advertised in a way that made it attractive to irresponsible persons (especially the young) seeking to do maximum damage in minimum time.”? That seems impossible, but then again I’m not a lawyer.
Comment by Just a Random Guy Wednesday, Apr 10, 24 @ 3:47 pm
- Demoralized - Tuesday, Apr 9, 24 10:40 am
I get offended by all sorts of stuff but I don’t demand that we do away with what offends me.
- Demoralized - Wednesday, Apr 10, 24 3:36 pm
Advertising of guns should be banned, or at least severely restricted. Let those ads go the way of cigarette ads.
Comment by sulla Wednesday, Apr 10, 24 @ 4:22 pm
Easterbrook (age 75) is approaching his final “judgement”…he’s trying to make up for his penchant for engaging in self-indulgent pedantry.
Comment by Dotnonymous x Wednesday, Apr 10, 24 @ 4:25 pm
lol. nice try.
Comment by Demoralized Wednesday, Apr 10, 24 @ 4:34 pm
The plaintiffs still have to get past the Protection of Lawful Commerce in Arms Act, so lots of innings left to play in this one.
Comment by Sad Wednesday, Apr 10, 24 @ 4:46 pm
-Advertising of guns should be banned, or at least severely restricted-
This would help the established gun manufactors because a new safer gun manufactor will have a harder time entering the market.
Comment by Steve Wednesday, Apr 10, 24 @ 4:57 pm
=a new safer gun manufactor will have a harder time entering the market.=
A risk I’m more than willing to take.
Comment by Pundent Wednesday, Apr 10, 24 @ 5:07 pm
=That seems impossible, but then again I’m not a lawyer.=
It might be, but I think the internet is full of representations that might back this point. I could be wrong.
Comment by JS Mill Wednesday, Apr 10, 24 @ 5:09 pm
==That seems impossible, but then again I’m not a lawyer.==
The same way that the federal government proved that tobacco manufacturers’ ads targeted kids. Through discovery of internal communications, whistleblower testimony, and also experts in advertising and marketing.
Also, it’s a wonderful (and somewhat surprising) opinion by Judge Easterbrook, but the comment at oral argument about how Smith & Wesson was minimizing the tragedy and horror was by Judge David Hamilton, from Indiana.
Comment by 60657 Thursday, Apr 11, 24 @ 9:38 am