In Brief

Gunmaker can argue against N.J. subpoena in court, appellate panel rules

By: - March 11, 2022 3:05 pm

A Smith & Wesson .357 magnum revolver cools down at a target range at the Los Angeles Gun Club on December 7, 2012 in Los Angeles, California. (Photo by Kevork Djansezian/Getty Images)

Smith & Wesson, the firearms manufacturers targeted by New Jersey over alleged consumer fraud violations, will get the chance to argue against a subpoena in federal court after a U.S. appellate panel revived a lawsuit that had been dismissed by a lower court judge.

The Third Circuit Court of Appeals Thursday ruled a federal district court judge was wrong to dismiss a suit brought by Smith & Wesson that claimed a subpoena filed by former state Attorney General Gurbir Grewal seeking information about the firm’s advertising practices violated constitutional protections.

Grewal’s move was part of a wider push by Gov. Phil Murphy’s administration to penalize firearm manufacturers for gun crimes, despite their broad immunity against civil suits.

“Nothing about today’s decision impacts our ongoing investigation into Smith & Wesson, which we’re committed to following through, wherever the facts lead,” a spokesperson for the Attorney General’s Office said. “While the company’s lawsuit may proceed on procedural grounds, we are confident that its claims will eventually be rejected, just as they already have been by a state court judge.”

In October 2020, Grewal issued an administrative subpoena against Smith & Wesson seeking internal documents related to advertisements seen in New Jersey that spoke of home defense, concealed carry, and personal safety. The subpoena also demanded supporting evidence for any such claims, among other things.

Smith & Wesson filed a federal suit seeking to bar the subpoenas on constitutional grounds, charging the subpoena ran afoul of protections granted by the First, Second, Fourth, Fifth, and Fourteenth amendments. It also claimed the suit was retaliatory.

Meanwhile, the attorney general sued in state court to force Smith & Wesson to comply with the subpoena, winning arguments in trial courts.

The gun manufacturer sought stays against the subpoena in state court, claiming substantially similar constitutional violations to those alleged in its federal complaint, but it was met with denials by appellate and state Supreme Court judges.

The gunmaker’s federal suit was dismissed in August on the grounds that a federal case would interfere with the ongoing state proceedings.

But the U.S. Court of Appeals found the lower court judge’s abstention was improper because the state’s subpoena was not part of a criminal prosecution — just of an investigation. The situation might have been different had the gunmaker faced contempt for defiance of a court order, the newest ruling says.

Smith & Wesson complied with the subpoena after the state Supreme Court ruling. The documents were released under a protective order that would require their return should the subpoena eventually be declared unlawful.

Smith & Wesson guns were more likely to be used in New Jersey gun crimes in 2021 than those made by any other firearm manufacturer, according to statistics maintained by the New Jersey State Police.

Authorities identified 394 Smith & Wesson-manufactured guns used in 2021 crimes, compared to 367 produced by Taurus Arms and 361 made by Glock, which held the second and third spots on that list, respectively.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.