* 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