PA Bill Number: HB739
Title: In regulation of insurers and related persons generally, providing for insurance data security; in reserve liabilities, repealing provisions relating ...
Description: In regulation of insurers and related persons generally, providing for insurance data security; in reserve liabilities, repealing provisions relat ...
Last Action: Presented to the Governor
Last Action Date: Jun 8, 2023
Smith & Wesson NJ Consumer Fraud v Civil Rights Case Remanded :: 03/22/2022
New Jersey – -(AmmoLand.com)- The state of New Jersey decided a long time ago to wage an all out war on the Second Amendment. Dating back to the late ’60s, the Garden State has been problematic, to put it lightly. The Florio free in 93’ days brought bad “gun control” measures, but law abiding citizens of the land of a thousand diners has not seen such a zeal for stripping away civil liberties as that which has been captured by Governor Phil “The Bill of Rights is Above my Paygrade” Murphy. Under the leadership of the Murph, former Attorney General Grewal launched a so-called consumer fraud investigation against Smith and Wesson.
Grewal felt it was in his jurisdiction to be able to look into any and every aspect of Smith and Wesson’s internal documents concerning advertising.
The suit that Smith and Wesson filed against the state, in lieu of handing over the documents that the Garden State Gestapo requested, was dismissed by District Court. From an order on the Smith and Wesson’s appeal:
In October2020, the New Jersey Attorney General issued a subpoena under the Act seeking documents from Smith & Wesson related to the company’s advertisements in New Jersey. The subpoena first made a general demandthatSmith & Wesson produce copies of and supporting documentation for “all advertisements for [Smith & Wesson’s] [m]erchandise that are or were available or accessible in New Jersey [c]oncerning home safety, concealed carry, personal protection, personal defense, personal safety, or home defense benefits of a [f]irearm.”
Instead of producing the documents when due under the subpoena, Smith & Wesson filed a complaint in the District of New Jersey under 42 U.S.C. §1983, alleging the subpoena violated the First, Second, Fourth, Fifth, and Fourteenth Amendments. Two months later, in February 2021, the New Jersey Attorney General sought to enforce the subpoena in state court. The state trial court ordered Smith & Wesson to show cause and threatened the company with contempt and a total ban on sales in New Jersey. In response, Smith & Wesson raised many of the same constitutional arguments it presented in its federal suit. The state court summarily rejected those arguments and required Smith & Wesson to produce the subpoenaed documents within 30 days. Smith & Wesson sought an emergency stay of production, but the Appellate Division of the New Jersey Superior Court and the New Jersey Supreme Court denied it.
Meanwhile, in federal court, Smith & Wesson amended its complaint to add claims that the Attorney General’s suit was “retaliation for Smith& Wesson’s exercise of its First Amendment-protected right to petition [the District] Court for redress.
On March 10, 2022, an order set the record straight in that Smith and Wesson do have a legitimate complaint against the state and ordered the case be remanded with instructions. The 22-page order touches upon some very interesting concepts that are worth highlighting.
We must consider just one more factor—whether Smith & Wesson has been charged with wrongdoing for which it can be sanctioned—to determine whether the state action is “quasi-criminal.”See ACRA Turf, 748 F.3d at138.We agree with Smith & Wesson that the subpoena enforcement action is not a suit initiated to punish wrongdoing.
Former Attorney General Grewal set out on a witch hunt when attacking Smith and Wesson, other companies from what I understand as well, and to read that the court agrees that Smith and Wesson did not engage in “quasi-criminal” activities is promising.
First, the Attorney General did not allege that Smith & Wesson violated any substantive legal duty. To date, he has not accused the company of violating the Consumer Fraud Act; he is investigating possible violations.
Second, and most importantly, Smith & Wesson did nothing wrong, so the suit cannot be one “initiated to sanction [it] for some wrongful act.” Id. at 79.Instead of producing the documents on the date specified on the subpoena, it petitioned a federal court to adjudicate its rights and obligations. Federal law authorizes just such a civil action (i.e., one alleging that the Attorney General violated the company’s constitutional rights).
For all these reasons, we hold that the subpoena enforcement action was not quasi-criminal under Sprint.
This is a bit of fresh air coming from the courts concerning New Jersey’s continual trampling on liberties.
In sum, we hold that abstention was not warranted in this case because the document production order was not “uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Sprint, 571 U.S. at 78 (quoting NOPSI, 491 U.S. at 368).
Federal courts owe due respect to state courts. Yet the Supreme Court has cautioned that abstention is appropriate only in “exceptional” cases. Id.at 73 (quoting NOPSI, 491 U.S. at 368). This case does not meet the carefully delineated criteria for abstention established in Sprint. We Will Therefore Vacate the District Court’s order dismissing the case and remand for further proceedings consistent with this opinion.
Perhaps more illuminating than the full order were comments made in a concurring opinion:
Now, for the first time, the State seeks to apply the Consumer Fraud Act to supplement these specific restrictions, waving aside concerns about the protections of the First and Second Amendment rights of New Jersey residents, as always, the name of “safety.” It is a well-traveled road in the Garden State, where long-dormant regulatory powers suddenly spring forth to address circumstances that have not changed. See Ass’n of New Jersey Rifle & Pistol Clubs Inc. v. Att’y Gen. New Jersey, 974 F.3d 237, 258 (3d Cir. 2020)(Matey, J., dissenting)(discussing New Jersey’s inconsistent restrictions on magazine capacity). Consider where this new highway will take us.2Futurefirearms instructors, fearing the arrival of subpoenas, might decide it is not worth advertising their services for“ safety” training. Maybe range operators, sporting clubs, or hunting lodges, recalling some dusty pamphlet mentioning their attention to “safety” will weigh waiting for investigators against early retirement. And almost certainly, every shop-owner stocking firearms for “self-defense” or personal “safety” can begin planning for periodic advertising inspections from the Attorney General. Perhaps publishers will be punished too, with outdoor magazines thinking twice before speaking about the content of a product.3 One might suspect that is the whole point.4
This portion of the concurring opinion pretty much calls out New Jersey on its continued quest to completely abolish the Second Amendment. The executive branch through the Attorney General’s office is abusing its powers and acts to chill the lawful commerce of any firearm, shooting, and or hunting-related business transaction by eliminating individual and corporate compulsion to advertise in the same. New Jersey has been running a racketeering ring on civil liberties for decades and it’s high time they get taken behind the woodshed for it.
What may come in an opinion from this remand should be interesting and we’ll be keeping our eyes on it.