Will the New Jersey suit change the gun control game?

Will the New Jersey suit change the gun control game?


Make no mistake. Americans -- or at least many of them -- love their weapons.

Will the New Jersey suit change the gun control game?
Will the New Jersey suit change the gun control game?


When it comes to personal ownership of firearms, no other country can match the United States according to the latest Swiss-based small arms survey, the United States is the only country on earth with more weapons than 120.5 firearms per 100 people. Yemen ranks second with only 52.8 rifles per 100 inhabitants.


So, if these deadly products are so prevalent in the United States, why is it difficult to legally hold the arms industry accountable?


This is the question that arose from the recent legal dispute in New Jersey between the State Attorney's Office and Smith & Wesson. Last October, Attorney General Jorbert S. Grill sent a subpoena to the arms manufacturer as part of an investigation into consumer fraud, in search of a set of internal documents.


Cause of the event: Smith & Wesson ran a TV ad depicting a woman and her rifle in different aspects of everyday life - going to work, to the gym, to an outdoor café, to the shooting range. The general manager said the problem is that carrying a gun like this would be illegal in 35 states without a concealed carry permit, which the commercial company did not mention.


Opening in law?

As the Times has noted, it is doubtful that Grewal is really much interested in advertising fraud itself in this case. Smith & Wesson said the same thing when they sued Grill in December, saying it was actually an attempt to move forward with his "anti-Second Amendment agenda." This, in turn, prompted Grilltol to file a motion of disapproval on the grounds that he was conducting an "investigation into the fraud of the diverse government consumer."


Yes. But no.


As the Times noted, "Let's call new Jersey's response what it is: deceitful. The court knows - and smith & wesson clearly knows - that investigating advertising fraud is not something "diverse in the park." "


Its purpose is to access internal documents, just like the plaintiffs who managed to achieve it with Big Tobacco in the 1990s. At the time, more than 40 countries sued the four largest tobacco companies in the United States on the grounds that their products were causing a public health crisis that was costly for states to address. With the help of whistleblowers, Jeffrey Wigand of Brown & Williamson Tobacco Corp., lawyers were finally able to obtain internal documents that reversed the tide of litigation. Why? Because the documents showed that tobacco officials knew how dangerous their products were and did nothing about it.


After the success of the tobacco claims, dozens of cities made a similar public health argument and crime-related costs that they were forced to endure from gun violence and filed public negligence and harassment suits against the gun industry.


Because of the discomfort, the arms industry and the arms lobby turned to lawmakers for protection.


Federal Protection of the Arms Industry

The result was, in 2005, the passage of the Law on the Protection of The Legitimate Trade in Arms (PLCAA), which provides broad immunity to firearm manufacturers and distributors in federal and state courts.


It is important to note that it is not surprising that Congress passes laws to restrict litigation that may seem unfair. After the terrorist attacks of September 11, 2001, for example, Congress passed a law prohibiting civil action against anyone who provides assistance to the intelligence community. However, the uncommon thing about PLCAA is that it provides universal immunity to an entire industry rather than a particular industrial behavior.


"No single industry has ever granted such broad legal protection -- and hasn't done so since," The Trace reported last year.


PLCAA's firewall has frustrated many plaintiffs who have tried to break it with seemingly detachable cases. For example, the parents of a victim of a movie theater shooting in Aurora, Colorado, in 2012 filed a lawsuit against several online retailers for selling ammunition and other equipment to the shooter without proper warranties, but a federal court ruled that the claims were pre-empted by PLCAA.


Second Amendment rights advocates

Why does the industry that manufactures and sells such deadly products deserve such special protection?


Gun rights organizations assert that PLCAA is necessary because the arms industry is particularly important because of its association with the constitutional right, the Second Amendment. They also argue that it is necessary to defend an industry whose goal is "frivolous claims".


In any case, the forces seeking greater accountability from the arms industry will not disappear any time soon. They may even gain momentum.


Last September, an appeals court in Pennsylvania ruled plcaa law unconstitutional. If so, it means that the arms industry cannot use PLCAA to defend itself in Pennsylvania. It could also mean that the case -- and the issue of legal immunity for the arms industry -- could end up before the U.S. Supreme Court.


There is a tendency to believe that judges will not lean toward the Second Amendment with any gun-related case, but Brady Center lawyer Jonathan Lowe told Reuters that the Pennsylvania case is really a 10-oct. In this case, the plaintiffs argued that PLCAA violated the October 10 amendment because it stripped states of their power to rely on their own laws to hold the gun industry accountable.


The Pennsylvania case involved a shooting incident that resulted from the shooting of another boy with a Springfield Armory semi-automatic pistol that contained a single cartridge in the room, believing it was empty because he removed the magazine clip. The parents of the deceased boy argued that Springfield was negligent in selling a weapon without a "magazine separation" device, but lost at the trial stage when the judge rejected it, citing PLCAA.


But on appeal, the plaintiffs changed their approach, focusing on the clear exception in PLCAA on cases involving a "knowing violation" of state laws or federal laws that "apply to the sale or marketing" of a firearm or ammunition. The October 10 case became the case amendment the court of appeal agreed with their argument.


Sandy Hook and Bankruptcy

The language of "knowledge of violation" was also at the heart of the lawsuit brought by the families of the Sandy Hook victims against Remington Arms, and when the U.S. Supreme Court refused to hear the PLCAA-based Remington Challenge in November 2019, it meant that families could proceed with their case claiming that the shooter was motivated by advertising for his crimes.


Now, in New Jersey, Attorney General Graywall is focusing on the same exception as the law. He says Smith & Wesson "intentionally violated the law."


Did they?


The answer may lie in their internal documents.