Federal appeals court upholds subpoena for gunmaker’s ads

Gun manufacturer Smith & Wesson must release marketing documents sought by a subpoena issued by the New Jersey Attorney General, a federal appeals court ruled Tuesday.

The federal appeals court ruled it could not toss the subpoena because of a legal doctrine, called issue preclusion, that bars judges from reconsidering another court’s ruling on a single issue of contention between the same parties.

A state appellate court upheld the subpoena in 2023 in a case Smith & Wesson called a “carbon copy” of its federal complaint. 

“Smith & Wesson lost its case at every level of the New Jersey court system, which concluded that the gun company’s efforts to evade subpoena compliance were meritless. The decision shows that Smith & Wesson cannot run to federal court when it did not get its way in state court,” Attorney General Matt Platkin said in a statement.

The case centers on a subpoena issued to the gun manufacturer to probe whether it had violated New Jersey’s Consumer Fraud Act by misstating the legality, safety, effectiveness, and benefits of its firearms.

Smith & Wesson has charged the subpoena violates a series of constitutional rights and, in its federal appeal, argued the state appeals court did not properly weigh its constitutional claims, denying the gunmaker’s appeal based only ripeness — a measure of how prepared a case’s facts are for trial.

But the newer ruling says that is a faulty reading of the state court’s decision. New Jersey’s Appellate Division had indeed weighed the constitutional claims and found them wanting, the judges wrote.

“The Appellate Division considered Smith & Wesson’s constitutional defenses, held they were not legally cognizable, and held that, in the alternative, the claims were not ripe,” the federal judges wrote.

They also discounted the gunmaker’s claim that state proceedings did not afford them a chance to state their case, finding “Smith & Wesson had a full and fair opportunity to litigate its claims in state court” even though it was a pretrial proceeding.

One judge on the federal panel took a dissenting view, arguing state court rulings had not delved deep enough into the gunmaker’s constitutional arguments and, therefore, failed to reach the merits.

“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. Today, and four opinions later, those questions remain unanswered,” Circuit Judge Paul Matey wrote in his dissent.

Smith & Wesson did not return a request for comment, and it’s unclear whether the firm will petition the matter to the New Jersey or U.S. Supreme Courts. The gunmaker has already furnished documents responsive to the subpoena, though those documents are subject to a protective order that demands their return if the subpoena is declared unlawful.