U.S. court says Smith & Wesson must comply with New Jersey subpoena in deceptive advertising probe

Smith & Wesson, the gun manufacturer, must comply with a New Jersey subpoena seeking documents as officials investigate whether the company engaged in deceptive advertising, a U.S. appeals court ruled Tuesday.

The documents being sought include anything that suggests the concealed carry of a firearm “enhances one’s lifestyle,” or says it’s safer to draw a gun to confront a perceived threat than to back away. The panel, in a 2-1 vote, rejected the gun-maker’s efforts to have a federal court quash the 2020 subpoena after a New Jersey court refused to do so.

“Litigants get one opportunity to make their arguments. Not two,” Chief Judge Michael A. Chagares of the 3rd U.S. Circuit Court in Philadelphia wrote.

The state is exploring whether Smith & Wesson, through misstatements or knowing omissions, misled consumers about “the safety, benefits, effectiveness, and legality of its products,” thereby violating its Consumer Fraud Act.

The investigation — which is civil, not criminal — began under former New Jersey Attorney General Gurbir Grewal and has continued under his successor, Matthew J. Platkin.

Platkin’s office, in a statement, said the appeals court had “rightly rejected Smith & Wesson’s attempts to undercut the state courts’ confirmation” of New Jersey’s right to investigate potential fraud and misconduct.

Smith & Wesson has argued that state officials are abusing their power by joining forces with Second Amendment foes and violating the company’s free speech and other rights. The company did not immediately return messages seeking comment left with both a media contact and lawyer Courtney G. Saleski, who argued the case.

Dissenting Judge Paul Matey, a President Donald Trump appointee, questioned the legitimacy of the state’s “novel” effort to pursue the gun-maker on consumer protection grounds. Victims of gun violence, including the mother of a 10-year-old killed in the Uvalde school shooting in Texas, similarly hope to hold gun-makers accountable by looking at whether they illegally market their weapons to juveniles.

“More than three years ago, Smith & Wesson asked a federal court to decide whether the novel decision by New Jersey’s Attorney General to use a state consumer fraud law to investigate ads for ordinary guns and ammo treads on the freedoms recognized by the U.S. Constitution,” Matey wrote in a stinging dissent. “Today, and four opinions later, those questions remain unanswered.”

The state’s probe of Smith & Wesson comes as New Jersey pursues several avenues to tighten its already strict gun laws. Last summer, the same appeals court upheld a 2022 state law that allows the attorney general to bring “public nuisance” claims against gun-makers.

In all, Democratic Gov. Phil Murphy has signed at least a dozen new measures aimed at curtailing gun violence, including one that orders new residents to register their firearm with police; one authorizing extreme risk protection orders for people deemed a risk to themselves or others; and a limit on magazine capacity from 15 to 10 rounds.

David Pucino, legal director of the gun control think tank Giffords, called the latest decision “an important procedural win” for Platkin’s office and consumers and a loss for the gun industry.

“No industry should not be able to mislead or deceive consumers, especially when their personal safety is on the line,” Pucino said.