Smith & Wesson Brands Inc v. Attorney General New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2492
_____________
SMITH & WESSON BRANDS, INC.;
SMITH & WESSON SALES COMPANY;
SMITH & WESSON INC.,
Appellants
v.
ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY;
NEW JERSEY DIVISION OF CONSUMER AFFAIRS
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-20-cv-19047)
District Judge: Honorable Julien X. Neals
_____________
Argued on November 9, 2021
Before: HARDIMAN, MATEY, and SCIRICA, Circuit
Judges
(Filed: March 10, 2022)
Courtney G. Saleski [Argued]
DLA Piper
1650 Market Street
One Liberty Place, Suite 5000
Philadelphia, PA 19103
Joseph A. Turzi
Edward S. Scheideman
DLA Piper
500 Eighth Street, NW
Washington, DC 20004
Christopher M. Strongosky
DLA Piper
51 John F. Kennedy Parkway
Suite 120
Short Hills, NJ 07078
Counsel for Appellants
Andrew J. Bruck
Jeremy M. Feigenbaum
Angela Cai [Argued]
Stephanie J. Cohen
Robert J. McGuire
Michael T. Moran
Tim Sheehan
John T. Passante
Office of Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees
2
________________
OPINION OF THE COURT
________________
HARDIMAN, Circuit Judge.
Smith & Wesson appeals an order of the District Court
dismissing its federal civil rights complaint in view of a
subpoena enforcement action pending in the New Jersey state
courts. Because the District Court violated its “virtually
unflagging obligation . . . to exercise the jurisdiction given,”
Colo. River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976), we will vacate and remand.
I
The New Jersey Attorney General is investigating
Smith & Wesson for possible violations of the New Jersey
Consumer Fraud Act. See N.J. Stat. Ann. § 56:8-2 (prohibiting
“any unconscionable commercial practice, deception, fraud,
false pretense, false promise, misrepresentation, or the
knowing concealment, suppression, or omission of any
material fact”). The Act empowers the Attorney General to
“investigate consumer-fraud complaints.” Cox v. Sears
Roebuck & Co., 647 A.2d 454, 460 (N.J. 1994) (citing N.J.
Stat. Ann. § 56:8-4). It also authorizes him to issue subpoenas,
“which shall have the force of law,” N.J. Stat. Ann. § 56:8-4,
when he believes someone has violated the Act or “when he
believes it to be in the public interest that an investigation
should be made to ascertain whether a person in fact has
engaged in, is engaging in[,] or is about to engage in, any such
practice,” id. § 56:8-3. The Attorney General may request
orders from New Jersey courts: “(a) Adjudging [a subpoena
3
violator] in contempt of court; (b) Granting injunctive relief
without notice restraining the sale or advertisement of any
merchandise by [a subpoena violator]; or (c) Vacating,
annulling, or suspending the corporate charter of a
corporation.” Id. § 56:8-6.
In October 2020, 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 demand that
Smith & 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.” App. 25. The subpoena then
specifically demanded all documents related to topics of
special concern to the Attorney General:
a. Whether Smith & Wesson’s [f]irearms can be
legally carried and concealed by any
[c]onsumer, [i]ncluding by New Jersey
[c]onsumers, while in New Jersey;
b. Whether the concealed carry of a [f]irearm
enhances one’s lifestyle;
c. Whether it is safer to confront a perceived
threat by drawing a [f]irearm rather than
4
seeking to move away from and avoid the
source of the perceived threat;
d. Whether having a Smith & Wesson [f]irearm
or other [f]irearm makes a home safer;
e. Whether Smith & Wesson [f]irearms are
designed to be more safe, reliable, accurate,
or effective than [f]irearms made by other
[f]irearm manufacturers for use in personal or
home defense or other activities; and
f. Whether novice, untrained [c]onsumers
could successfully and effectively use a
Smith & Wesson [f]irearm for personal or
home defense.
Id. The Attorney General’s focus included questions especially
concerning Smith & Wesson’s comparative claims, such as
whether its firearms are “[p]recision built to be the most
accurate and reliable.” See Archive: M&P 9 No Thumb Safety,
Smith & Wesson, https://www.smith-
wesson.com/firearms/archive-mp-9-no-thumb-safety-0 (last
visited Feb. 4, 2022).
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
5
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.” App. 83. The Attorney General then moved to
dismiss that complaint, claiming abstention was required under
Younger v. Harris, 401 U.S. 37 (1971). The District Court
agreed and dismissed Smith & Wesson’s amended complaint.
Smith & Wesson Brands, Inc. v. Grewal, 2021 WL 3287072, at
*3 (D.N.J. Aug. 2, 2021) (holding that abstention under
Younger was necessary because “the subpoena-enforcement
action involves orders in the furtherance of state court judicial
function”). Smith & Wesson eventually produced the
subpoenaed documents under a protective order, which
requires the Attorney General to return the documents if the
subpoena is later held unlawful. Smith & Wesson appeals the
District Court’s order dismissing its amended complaint.
II
The District Court had jurisdiction under 28 U.S.C.
§ 1331 because Smith & Wesson asserted claims under 42
6
U.S.C. § 1983.1 We have jurisdiction under 28 U.S.C. § 1291to review the District Court’s order dismissing the case. “We
exercise plenary review over a trial court’s . . . determination
of whether Younger abstention is proper.” Hamilton v.
Bromley, 862 F.3d 329, 333 (3d Cir. 2017).
III
“To promote comity between the national and state
governments, Younger requires federal courts to abstain from
deciding cases that would interfere with certain ongoing state
proceedings.” Malhan v. Sec’y U.S. Dep’t of State, 938 F.3d
453, 461 (3d Cir. 2019) (citations omitted). Younger involved
a pending state criminal prosecution, 401 U.S. at 40–41, but
the Supreme Court later extended the doctrine to some state
civil proceedings, see Huffman v. Pursue, Ltd., 420 U.S. 592,
607 (1975). In the years that followed, federal courts expanded
Younger and abstained too frequently, so the Supreme Court
reined in that expansion. ACRA Turf Club, LLC v. Zanzuccki,
748 F.3d 127, 135–36 (3d Cir. 2014); see Sprint Commc’ns,
Inc. v. Jacobs, 571 U.S. 69, 81–82 (2013). The Supreme Court
has since consistently narrowed abstention doctrines, including
Younger, because they “conflict[] with federal courts’
‘virtually unflagging’ obligation to exercise their jurisdiction.”
1
The District Court mistakenly treated Younger as a
jurisdictional constraint. Smith & Wesson, 2021 WL 3287072,
at *2 (reciting and applying the Rule 12(b)(1) standard).
Younger is an abstention doctrine that instructs federal courts
not to exercise jurisdiction they possess. See Malhan v. Sec’y
U.S. Dep’t of State, 938 F.3d 453, 461 (3d Cir. 2019)
(considering whether the District Court should have abstained
under Younger after concluding that the Court had
jurisdiction).
7
Malhan, 938 F.3d at 462 (quoting Sprint, 571 U.S. at 77); see
also id. at 458 (citing Colo. River, 424 U.S. at 817).
The Court’s most recent guidance in Sprint explains that
“Younger extends . . . no further” than three “exceptional
circumstances”: (1) “state criminal prosecutions”; (2) “civil
enforcement proceedings”; and (3) “civil proceedings
involving certain orders uniquely in furtherance of the state
courts’ ability to perform their judicial functions.” 571 U.S. at
78, 82 (cleaned up).2 The Court clarified that “[a]bstention is
not in order simply because a pending state-court proceeding
involves the same subject matter.” Id. at 72. In doing so,
“Sprint narrowed Younger’s domain.” Malhan, 938 F.3d at
462.
This appeal does not involve a pending state criminal
prosecution, so the first Younger category is inapplicable. The
District Court invoked the third category, holding that the state
proceedings involve “orders in the furtherance of state court
judicial function.” Smith & Wesson, 2021 WL 3287072, at *3.
In response to Smith & Wesson’s arguments in this appeal, the
2
In view of the Supreme Court’s holding in Sprint that federal
courts may not abstain under Younger beyond the three
“exceptional circumstances,” we decline the Attorney
General’s invitation to create a free-floating doctrine of
federalism abstention. Compare Sprint, 571 U.S. at 78 (“We
have not applied Younger outside these three ‘exceptional’
categories, and today hold . . . that they define Younger’s
scope.”); with J.B. v. Woodard, 997 F.3d 714, 722–23 (7th Cir.
2021) (abstaining based on the “risk[] [of] a serious federalism
infringement” even though “none of the abstention doctrines—
if examined and applied in isolated fashion—apply to [the
plaintiff’s] claims”).
8
Attorney General argues that abstention is also appropriate
under the second Younger category because the subpoena
enforcement action is a civil enforcement proceeding akin to a
criminal prosecution.
A
We first consider whether the subpoena enforcement
action falls within the second Younger category—is it a “civil
enforcement proceeding”? To qualify as such, the underlying
state action must be “akin to a criminal prosecution in
important respects.” Sprint, 571 U.S. at 79 (cleaned up). In
other words, “the state civil enforcement proceeding must be
‘quasi-criminal’ in nature.” ACRA Turf, 748 F.3d at 138
(quoting Sprint, 571 U.S. at 81). Three factors guide this
inquiry: “whether (1) the action was commenced by the State
in its sovereign capacity, (2) the proceeding was initiated to
sanction the federal plaintiff for some wrongful act, and
(3) there are other similarities to criminal actions, such as a
preliminary investigation that culminated with the filing of
formal charges.” Id. (citing Sprint, 571 U.S. at 79–80). Pre-
Sprint caselaw provides another consideration: “whether the
State could have alternatively sought to enforce a parallel
criminal statute.” Id. (gleaning this factor from Huffman, 420
U.S. at 604, and Trainor v. Hernandez, 431 U.S. 434, 444
(1977)).
There is no dispute about the first factor; New Jersey
brought the subpoena enforcement action in its sovereign
capacity. And although the Attorney General maintains the
third factor—whether there was a preliminary investigation
“culminating in the filing of a formal complaint or charges,”
Sprint, 571 U.S. at 80 (citations omitted)—is met, he concedes
that his investigation into Smith & Wesson’s alleged subpoena
9
violation was limited. That distinguishes this case from those
where more robust preliminary investigations led to the filing
of administrative complaints. See, e.g., Ohio Civ. Rts. Comm’n
v. Dayton Christian Schs., 477 U.S. 619, 624 (1986);
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423, 433 (1982). Moreover, in those cases, the
investigation and the charges concerned the same conduct. See,
e.g., Dayton Christian Schs., 477 U.S. at 624 (sex
discrimination investigation preceding formal complaint
alleging sex discrimination); Middlesex, 457 U.S. at 428(investigation for attorney ethics violation preceding formal
charges of ethics violations). Here, however, the substantive
investigation concerned consumer fraud, yet the complaint
alleged only violation of a subpoena. These distinctions
suggest the subpoena enforcement action is not “akin to a
criminal prosecution.” Sprint, 571 U.S. at 79 (quoting
Huffman, 420 U.S. at 604).
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 at 138. We agree with
Smith & Wesson that the subpoena enforcement action is not a
suit initiated to punish wrongdoing.
Sprint teaches that a suit is meant to punish wrongdoing
where the state court defendant (the federal plaintiff) violated
a legal right or duty. 571 U.S. at 79 (listing examples of cases
that satisfy this factor, like disciplinary proceedings against
lawyers, actions to recover fraudulently obtained welfare
payments, and suits to enforce obscenity laws). We have
likewise held that a suit was initiated to punish wrongdoing
where the State sought unpaid taxes for the misclassification of
employees. PDX N., Inc. v. Comm’r N.J. Dep’t of Lab. &
10
Workforce Dev., 978 F.3d 871, 883–84 (3d Cir. 2020), cert.
denied 142 S. Ct. 69 (2021). But in the case most like this one,
we recently held that a subpoena enforcement action did not
punish wrongdoing. TitleMax of Del., Inc. v. Weissmann, 24
F.4th 230, 236–37 (3d Cir. 2022).
The subpoena enforcement action here differs in at least
two significant respects from suits that punish wrongdoing.
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. That fact distinguishes the
subpoena enforcement action from PDX, as well as the
examples of civil enforcement actions the Supreme Court
listed in Sprint. In PDX, the employers underpaid taxes after
misclassifying their employees. 978 F.3d at 883–84. Likewise,
in Sprint’s examples of wrongdoing, the state defendants
violated substantive legal rights or duties. 571 U.S. at 79. Here,
in contrast, Smith & Wesson is alleged to have violated a
procedural rule related to the production of documents. Where
procedure is at issue, the third Younger category—“civil
proceedings involving certain orders uniquely in furtherance of
the state courts’ ability to perform their judicial functions,” id.
at 78 (cleaned up)—is a more natural fit than the second
Younger category.
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). See 42 U.S.C. § 1983. And when the state trial court
11
ordered Smith & Wesson to comply and the state court of
appeals provided no relief, the company produced the
subpoenaed documents. So Smith & Wesson was never
sanctioned; it only had to produce documents. A subpoena
enforcement action that requires the production of documents
“is not ‘retributive in nature’ or ‘imposed to punish . . . some
wrongful act.’” TitleMax, 24 F.4th at 237 (quoting ACRA Turf,
748 F.3d at 140).
The Attorney General responds that Smith & Wesson
committed wrongdoing when it failed to respond to the
subpoena by the date specified. The structure of the Consumer
Fraud Act supports this reasoning. If an entity violates a
subpoena issued by the Attorney General in a consumer fraud
investigation, it may be subject to contempt, as well as a
complete prohibition on “the sale or advertisement of any
merchandise” and suspension of its corporate charter. N.J. Stat.
Ann. § 56:8-6. These statutory “[p]enalties are, by their very
nature, retributive: a sanction for wrongful conduct.” PDX, 978
F.3d at 884 (citation omitted).
But those penalties are not self-executing; a court will
impose them only after the subpoenaed party violates a court
order. Grewal v. 22Mods4ALL, Inc., No. ESX-C-244-19, slip
op. at *17 (N.J. Super. Ct. Ch. Div. May 24, 2021) (“[T]he
failure to obey [a subpoena issued by the Attorney General may
be] addressed by the court to compel compliance but it is not
treated as a violation of the [Consumer Fraud Act].”). This case
is a perfect example of that reality. Even after the Attorney
General filed suit, the state court did not hold Smith & Wesson
in contempt for failing to produce the subpoenaed documents.
Smith & Wesson would be in contempt only by violating the
state court’s order, which never happened.
12
Although not mentioned in Sprint, we may also consider
whether the statute being enforced has a criminal counterpart
to help us decide whether an action is quasi-criminal. ACRA
Turf, 748 F.3d at 138 (citations omitted). The Attorney General
asserts that New Jersey’s general criminal contempt statute is
analogous. See N.J. Stat. Ann. § 2C:29-9(a). But even
assuming there is a criminal analogue, two of the three
guideposts the Supreme Court established in Sprint—whether
there was an investigation leading to formal charges and
whether there was wrongdoing to sanction—are not met here.
The presence of a criminal analogue alone—a factor not even
mentioned in Sprint—does not alter our conclusion. See
TitleMax, 24 F.4th at 237 (holding that abstention was not
warranted where there was a criminal analogue but other
factors suggested the state action was not quasi-criminal).
For all these reasons, we hold that the subpoena
enforcement action was not quasi-criminal under Sprint.
B
We next consider whether the District Court correctly
abstained because the subpoena enforcement action “involves
orders in the furtherance of state court judicial function.” Smith
& Wesson, 2021 WL 3287072, at *3. A review of the Supreme
Court’s holdings reveals that the District Court erred.
The Supreme Court has clarified that not all state court
orders trigger abstention; they must be “uniquely in furtherance
of the state courts’ ability to perform their judicial functions.”
Sprint, 571 U.S. at 78 (emphasis added) (quoting New Orleans
Pub. Serv., Inc. v. Council of New Orleans (NOPSI), 491 U.S.
350, 368 (1989)). The two leading cases that involved such
13
orders are Juidice v. Vail, 430 U.S. 327 (1977) and Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1 (1987).
Juidice is closely analogous to this case. The two
plaintiffs there—Ward and Rabasco—asked the federal court
to enjoin state contempt proceedings as unconstitutional.
Juidice, 430 U.S. at 328–29, 332. Ward had already been held
in contempt. Id. at 332. Rabasco had not yet been sanctioned,
but contempt was imminent because he had failed to comply
with a court order to show cause. Id. The Court abstained from
adjudicating the dispute because the plaintiffs “had an
opportunity to present their federal claims in the state
proceedings.” Id. at 337. The Court wanted to avoid any action
that could “readily be interpreted as reflecting negatively upon
the state court’s ability to enforce constitutional principles.” Id.
at 336 (cleaned up). The Court sought not to infringe upon the
State’s ability to pursue its interests. Id. (“[F]ederal-court
interference with the State’s contempt process is ‘an offense to
the State’s interest . . . likely to be every bit as great as it would
be were this a criminal proceeding.’” (quoting Huffman, 420
U.S. at 604)). But the Court also noted the significance of
judicial process. The subpoenas in Juidice were “court-
sanctioned,” id. at 335, not administrative subpoenas, like the
one at issue here. And both plaintiffs had violated court orders.
Id. at 332.
Pennzoil is further afield from this case, so it is less
instructive. Pennzoil held that federal courts should abstain
from deciding the constitutionality of Texas’s procedure for
transferring property pursuant to a state court judgment. 481
U.S. at 3, 17. The Court provided two justifications:
(1) “comity between the States and the National Government;”
and (2) “to avoid unwarranted determination of federal
constitutional questions.” Id. at 11. According to the Court,
14
Juidice dictated this result because both cases “involve[d]
challenges to the processes by which the State compels
compliance with the judgments of its courts.” Id. at 13–14.
The key thread linking Juidice and Pennzoil is the
certainty of the state court’s action. In Juidice, the plaintiffs
had already violated court orders, so they faced imminent
imprisonment. 430 U.S. at 332. In Pennzoil, the state court
merely had to enter judgment on the jury’s verdict. 481 U.S. at
6. In both cases, the substantive outcome had occurred; only
enforcement remained, and the Supreme Court refused to
impede that enforcement.
Here, by contrast, when Smith & Wesson went to
federal court there was much more for the state court to do than
merely implement a predetermined outcome. New Jersey
courts still had to adjudicate Smith & Wesson’s constitutional
arguments; and even if those arguments were resolved against
Smith & Wesson, the state courts still had to give the company
an opportunity to produce the required documents before
holding it in contempt. Ultimately, Smith & Wesson complied,
so the state courts never sanctioned the company. So this
appeal differs materially from Juidice and Pennzoil, where the
state courts merely had to enforce orders.
Our recent cases on this subject also weigh against the
District Court’s decision to abstain. In TitleMax, we held that
a subpoena enforcement action did not involve orders uniquely
in furtherance of the state courts’ judicial function. 24 F.4th at
237. There, the state court “ha[d] neither issued orders
enforcing the subpoena nor made contempt findings.” Id.
Because the action “present[ed] only a possibility of contempt,
akin to any other case,” we concluded that abstention was
unwarranted. Id. Although the state court in this case has issued
15
an order requiring Smith & Wesson to comply with the
subpoena, Smith & Wesson has complied, so there is still only
“a possibility of contempt.” See id. And that is insufficient to
warrant abstention.
If a threat of contempt were all that was required to
trigger abstention, we would have to abstain whenever there
was a pending civil proceeding since the contempt power is
generally available to enforce court orders. See, e.g., N.J. Stat.
Ann. § 2A:10-5 (“Any person who shall be adjudged in
contempt of the Superior Court by reason of his disobedience
to a judgment, order or process of the court, shall [pay a
fine].”). But that approach would run afoul of the Supreme
Court’s insistence that “even in the presence of parallel state
proceedings, abstention from the exercise of federal
jurisdiction is the ‘exception, not the rule.’” Sprint, 571 U.S. at
81–82 (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236
(1984)). Once a party has violated a court order, the situation
changes. See Juidice, 430 U.S. at 332 (noting that both
plaintiffs had violated court orders). But as we have noted,
Smith & Wesson was never cited for contempt because it
complied with the subpoena when ordered to do so by the state
courts.
Similarly, in Malhan we held that none of the three
orders challenged by the federal plaintiff met the Supreme
Court’s criteria for abstention. 938 F.3d at 462–65. First, we
held the means by which the State collected non-final
judgments “further[ed] family court enforcement—but not
uniquely so.” Id. at 463. In doing so, we distinguished the
State’s collection method from “a process, such as civil
contempt, that is separate from the merits and that ends when
the defendant complies.” Id. Second, we held that state court
orders that required the plaintiff to pay child and spousal
16
support “d[id] not ensure that family courts can perform their
functions—they [we]re merely the output of those functions.”
Id. Finally, we held that a threat to garnish wages did not
furnish a basis for abstention because no proceedings were
“pending.” Id. at 463–64 (quoting Sprint, 571 U.S. at 78).
Those holdings are instructive here. Like the orders in Malhan,
the document production order and threatened contempt orders
in this case are neither collateral to other proceedings nor
totally “separate from the merits.” Id. at 463. Instead, they
resemble the “output of [state judicial] functions.” Id. (citation
omitted). Thus, Malhan’s first two holdings counsel against
abstention in this case.
Malhan’s third holding—reciting the rule that
abstention is appropriate only if state court proceedings are
“pending,” id. at 463–64 (quoting Sprint, 571 U.S. at 78)—is
less helpful. Even assuming that the state court proceedings
here were pending, abstention would still be inappropriate. The
Supreme Court has held that courts should consider whether a
state judicial proceeding is ongoing only if it fits within one of
the three Sprint categories. 571 U.S. at 81; see PDX, 978 F.3d
at 882–83. Because we have already concluded that this case
does not meet Sprint’s criteria, we need not consider whether
the state proceedings were ongoing.
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).
17
* * *
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.
18
Smith & Wesson Brands Inc, et al. v. Attorney General New
Jersey, et al., No. 21-2492
MATEY, Circuit Judge, concurring.
I join in holding that the District Court must wrestle
with the perplexing facts of this case. I write separately to note
that those facts present novel questions at the crossroads
between the guarantees in the First and Second Amendments.
For more than sixty years, New Jersey’s Attorney General
enjoyed the powers of the Consumer Fraud Act to protect the
public from misleading advertising. New Jersey has also
regulated firearms for more than three centuries. E.g., An Act
Against Wearing Swords 1686 N.J. Laws at 289–90; § 1, 1797
N.J. Laws at 179; § 2, 1799 N.J. Laws at 562; 2 Compiled Stats.
of N.J. 1759 (1911); N.J. Stat. Ann. § 2A:151–41 (1966); see
also Aaron Leaming & Jacob Spicer, The Grants, Concessions,
and Original Constitutions of the Province of New Jersey 289
(1758). Those regulations have, for decades, included
firearms-specific advertisement restrictions. N.J. Stat. Ann.
§ 2C:39-15 (1990).1
1
“Any person who offers to sell a machine gun, semi-
automatic rifle, or assault firearm by means of an
advertisement published in a newspaper circulating within this
State, which advertisement does not specify that the purchaser
shall hold a valid license to purchase and possess a machine
gun or assault firearm, or a valid firearms identification card to
purchase and possess an automatic or semi-automatic rifle, is a
disorderly person.”
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 in, 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.2 Future firearms 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
2
A journey aided by the capacious language of the
Consumer Fraud Act definition of “advertisement” to include
“the attempt directly or indirectly by publication,
dissemination, solicitation, indorsement or circulation or in any
other way to induce directly or indirectly any person to enter
or not enter into any obligation or acquire any title or interest
in any merchandise or to increase the consumption
thereof . . . .” N.J. Stat. Ann. § 56:8-1(a).
2
speaking about the content of a product.3 One might suspect
that is the whole point.4
Pointed questions that are all appropriately considered
by the District Court on remand. New Jersey is free to
experiment with the enforcement of its laws. But the liberties
reserved to the states by the Tenth Amendment do not negate
3
The Consumer Fraud Act shields publishers and
broadcasters carrying the suspect advertisement only when
“the owner, publisher, or operator has no knowledge of the
intent, design or purpose of the advertiser.” N.J. Stat. Ann.
§ 56:8-2. Small comfort.
4
A point illustrated by New Jersey’s representation to
this Court that Smith & Wesson advertised that “[a] specific
firearm product is quote ‘the most accurate and reliable.’”
Unofficial Transcription of Oral Argument at 19:55 to 22:59,
available at
http://www2.ca3.uscourts.gov/oralargument/audio/21-
2492Smith%26WessonBrandsetalv.Atty
GenStateofNJetal.mp3. Smith & Wesson never made that
unqualified claim. The selectively quoted advertisement
actually reads: “[p]recision built to be the most accurate and
reliable firearms, M&P pistols are an experience you have to
feel to believe.” https://www.smith-
wesson.com/firearms/archive-performance-center-mp-9-pro-
series-0, [https://perma.cc/V5E5-X88E]. That seems more
aspirational than factual, premised on “precision”
manufacturing, not broad claims of safety. A far-more precise
statement, it seems, than New Jersey’s misleading argument.
That less-than-forthcoming approach to litigation suggests that
careful review of New Jersey’s entire investigation is
warranted.
3
the privileges reserved to the people, including “the widely
accepted principle at the Founding that the right to self-defense
derived directly from the natural right to life, giving the people
predictable protections for securing the ‘Blessings of
Liberty.’” See Ass’n of New Jersey Rifle & Pistol Clubs Inc.,
974 F.3d at 258 (Matey, J., dissenting) (citing U.S. Const.
pmbl.; see also Declaration of Independence para. 2 (U.S.
1776)).
4