(Reuters) - The firearms industry knew this was coming: On Wednesday, an unprecedented coalition of big-name law firms, from both the defense and plaintiffs' bars, teamed up with anti-gun violence nonprofits to accuse Smith & Wesson Brands Inc of responsibility for a mass shooting at a July 4 parade in Highland Park, Illinois, that left seven dead and dozens wounded.
The new lawsuits, filed in state court in Lake County, Illinois, contend that Smith & Wesson deliberately marketed its M&P 15 assault rifle to appeal to violence-prone adolescents like the Highland Park shooter, designing advertisements that falsely linked the M&P 15 to military and police forces and posting marketing videos that intentionally mimicked popular video games like "Call of Duty." According to the lawsuits, Smith & Wesson’s targeting of susceptible young men through these militaristic ads and videos is a violation of Illinois’ consumer fraud and deceptive business practices law.
“Smith & Wesson’s marketing and promotion attracts young men looking for military-style rifles to act out a perverse combat fantasy of killing as many people as possible,” the lawsuits assert. “And Smith & Wesson knows it.”
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Smith & Wesson did not immediately respond to a query from me or from my Reuters colleague Brendan Pierson.
“This is not an attack on the firearms industry,” said Ari Scharg of Edelson, one of the firms suing Smith & Wesson. (The other firms include Paul, Weiss, Rifkind, Wharton & Garrison; Dentons; Koskoff Koskoff & Bieder; Rapoport, Weisberg & Sims; Romanucci & Blandin and the nonprofit Everytown Law.) “This is an attack on a company marketing firearms in a terrible way,” he said.
Scharg, his wife and his two young children were at the July 4 parade in Highland Park when Robert Crimo III opened fire from a rooftop with a Smith & Wesson M&P 15. Scharg and his family ran for cover and were taken in by an elderly homeowner who sheltered dozens of parade-goers in her basement for hours.
Scharg told me that one of the most traumatic parts of the experience was a sense of futility and frustration that he could do nothing to stop mass shootings because the weapons are so widely available. But working with the nonprofit Brady Center to Prevent Gun Violence, which is co-counsel on the suit filed by Edelson on Wednesday, convinced him otherwise, Scharg said.
“We know there will be a next mass shooting,” Scharg said. “We want this litigation to be a blueprint.”
The new lawsuits offer a refined version of a legal theory that originally emerged in litigation by families of victims of the 2012 Sandy Hook Elementary School massacre. As you probably recall, the Sandy Hook families and their counsel from the Koskoff firm persuaded the Connecticut Supreme Court in 2019 to allow them to move forward with claims that Remington Arms Co LLC breached state consumer protection laws by marketing its assault rifle to civilians bent on violence.
The Connecticut justices, in a landmark decision, held that Remington’s allegedly deceptive marketing fell outside of the scope of immunity that the U.S. Congress conferred on gunmakers and sellers in the Protection of Lawful Commerce in Arms Act. That 2005 law, enacted to squelch a surge in private litigation against gun makers, broadly shields them from suits by shooting victims.
The firearms industry predicted after the Connecticut decision that the Sandy Hook precedent would spark a litigation onslaught. Remington said as much to the U.S. Supreme Court when it sought review of the Connecticut ruling. Remington’s amici warned the U.S. justices that the industry might be crushed by the cost of fending off similar lawsuits by shooting victims.
The U.S. Supreme Court denied review, Remington entered bankruptcy and its insurers ended up agreeing to pay $73 million to the victims’ families.
And now, just as Remington and the rest of the firearms industry predicted, additional mass shooting victims are advancing and expanding upon the theory that deceptive marketing claims are exempted from the Protection of Lawful Commerce in Arms Act.
The Brady Center, Dentons and other firms have also asserted that theory against Smith & Wesson in San Diego Superior Court, on behalf of victims of a 2019 shooting at the Chabad of Poway synagogue. The California case, like the new Illinois lawsuits, specifically highlighted the link between Smith & Wesson’s marketing of the M&P 15 and video games that allow players to visualize the experience of using an assault rifle in a military operation.
Smith & Wesson claimed immunity under the federal law, but in 2021, as Reuters reported, Judge Kenneth Medel ruled that the Poway victims' case can move forward.
Firearms litigation expert Timothy Lytton of the College of Law at Georgia State University told me on Wednesday that plaintiffs' deceptive marketing theory will ultimately have to be tested at the U.S. Supreme Court because it relies on an interpretation of the federal Protection of Lawful Commerce in Arms Act.
The key issue, Lytton said, is whether the text of the federal law – which permits civil suits against gunmakers and sellers that are alleged to have “knowingly violated a state or federal statute applicable to the sale or marketing of the [firearm]” – encompasses general state business practices laws or is limited to state laws that directly address gun sales.
“That remains an open question,” Lytton said. And even if Illinois courts agree with the Connecticut Supreme Court’s conclusion that the federal law does not preclude deceptive marketing claims against gunmakers, Lytton said, the Highland Park plaintiffs will still have to establish that they have standing to sue under consumer protection laws that are generally intended to be used by plaintiffs who purchased a falsely advertised product.
If the cases survive initial motions to dismiss, the Highland Park plaintiffs will also have to prove that the shooter was exposed to Smith & Wesson’s ads and videos. Edelson partner Scharg said the shooter’s own videos mirror that marketing. Even the name of the weapon, which Scharg said is intended to evoke military and law enforcement endorsement of the rifle, is deceptive, he said.
“The residents of Highland Park are demanding change,” Scharg said. “This is an historic opportunity to change the way assault rifles are marketed.”
Read more:
Smith & Wesson marketed to 'would-be mass shooters,' Highland Park victims claim
Remington Arms to pay $73 million to nine Sandy Hook families
Firearms industry: Supreme Court’s skip of Sandy Hook gun case presages litigation onslaught
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