The Scope of State Attorney General Subpoenas: Smith & Wesson v. Grewal
[This guest post by Bernard Bell was originally published on the Notice & Comment blog and is cross-posted there.]
Last week, by a complaint captioned Smith & Wesson v. Grewal, the firearms manufacturer sued New Jersey’s Attorney General in federal court to contest an administrative subpoena regarding its advertising practices. Smith & Wesson sought to enjoin (1) the Attorney General from seeking to enforce the subpoena, and (2) the New Jersey state courts from enforcing it, as well as associated declaratory relief. The case raises issues regarding the appropriate scope of state attorneys general’s subpoenas. The federal court may invoke Younger v. Harris abstention to dismiss the claims.
Factual Background and Smith & Wesson’s Claims
The Attorney General issued the challenged subpoena on October 13, 2020, pursuant to the New Jersey Consumer Fraud Act. The subpoena, attached as Exhibit A to Smith & Wesson’s Complaint, sought a variety of documents, including:
(1) all advertising for Smith & Wesson products in New Jersey concerning (a) home safety, (b) concealed carry, and (c) personal protection, defense, and safety, or home safety benefits of a firearms, including a Smith & Wesson firearm,
(2) all versions and drafts of such advertising, and
(3) any tests, studies, evaluations, analyses, or evaluations, either considered or undertaken by Smith & Wesson, that address, prove, disprove, or substantiate any claims made regarding the safety risks or performance of the firearms depicted in Smith & Wesson’s advertisements.
In addition, the Attorney General sought all documents regarding several subjects: (a) whether firearms could be legally carried in New Jersey, (b) whether “concealed carry” enhances one’s lifestyle, (c) whether the safer course is to confront a perceived threat or seek to retreat, (d) whether keeping a Smith & Wesson firearm in the home enhances home security, (e) whether Smith & Wesson firearms are more safe, reliable, accurate or effective than other manufacturers’ firearms, and (f) whether novice untrained users could successfully and effectively use Smith & Wesson weapon for personal or home defense.
In its Complaint, Smith & Wesson’s launches a broad-gauged challenge to the subpoena’s validity. The challenge includes an attack on the Attorney General’s motives, his coordination with “anti-Second Amendment Activists,” and his delegation of substantial investigatory authority to a private law firm, more particularly one with “[s]ubstantial experience in litigation pertaining to reducing or seeking damages for the impacts of firearm violence or similar public safety impact litigation claims,” Complaint, ¶ 77.
Smith & Wesson alleges that Attorney General’s Grewal’s conduct and multiple “inflammatory and biased statements,” has evidenced his intent on using his powers to coerce firearms manufacturers’ accession to his view of the Second Amendment. Plaintiff notes the Attorney General’s pledge to “turn up the heat” on gun manufacturers. Complaint, ¶67. It charges that the Attorney General’s “singular focus” in addressing gun violence has been “interfering with constitutionally protected activity” and “reduc[ing] gun ownership by law-abiding citizens.” Smith & Wesson noted that the Attorney General has fiercely opposed “open carry” and “concealed carry” policies. Thus, by asserting that “[p]ublic carrying of firearms is dangerous to our residents and to law enforcement,” the Attorney General has taken a side in the gun debate. Id., ¶68.
Overall, the Attorney General’s statements and actions demonstrate that “his goal is to employ his prosecutorial authority to impose his own views regarding a contentious political issue, notwithstanding any constitutional or other legal safeguards.” Id., ¶72. In other words, the Attorney General is deploying the State’s “vast resources” to “bring meritless claims, for the purpose of using the burden and cost of mounting a defense” to gain “leverage” against gun manufacturers. Id., ¶69.
Smith & Wesson alleges that the Attorney General had abused his subpoena power under the New Jersey Consumer Fraud Act, most particularly N.J.S.A. §§56:8-3 and 56:8-4, to seek “a vast collection of documents on a number of topics, most of which are, at bottom, opinions on either legal issues or matters of current public debate.” Id., ¶56. Such “statements of opinion should not be subject to review by State officials for ‘accuracy,’ and cannot form the basis of any investigation sounding in ‘fraud.’” Id. Plaintiff characterizes the remainder of the subpoena as “an unconstitutional fishing expedition into virtually all of Smith & Wesson’s advertisements and marketing materials over decades.” Id., ¶64. In short, it concluded, “[t]he Subpoena presents no legitimate inquiry into any purported fraud.” Id., ¶3.
Plaintiffs then assert that “[b]eyond the issuance of the [s]ubpoena,” the Attorney General, in coordination with anti-Second Amendment Activists, has implemented a “name and shame” policy through which he seeks to show a “connection” between “crime guns” and Smith & Wesson. Id., ¶6. In May 2018, the co-founders of the Giffords Law Center to Prevent Gun Violence appeared with Governor Phil Murphy to announce an “unprecedented public-private effort on gun-safety litigation” that would “combin[e] the investigative and enforcement powers of the State with the expertise of the nation’s leading gun litigation coalition.” Id., ¶74
Subsequently, the Attorney General announced his intention “to show the link between specific companies and guns recovered from crime scenes.” His announced goal was “compel[ling]” gun manufacturers to cooperate with the State to reduce gun violence, Id. ¶89. Smith & Wesson asserts that this “name and shame” policy is flawed. In its view, the Attorney General had relied upon an “inherently flawed methodology” that “produces no actionable information.” It thus “contributes nothing to its purported ultimate objective of compelling gun manufacturers to work with the State.” Id., ¶90. The Complaint does not appear to assert that the “name and shame” effort itself is actionable, and indeed such shaming approaches have been employed by government officials in other areas. See Shaming Big Pharma (November 9, 2019); Shaming Big Pharma (February 12, 2019); Retreating on Affirmative Disclosure: The Case of APHIS’s Publicly-Available Enforcement Databases.
Plaintiff set forth eleven claims.
First, the subpoena is invalid as “an impermissible viewpoint-based restriction” that burdens Smith & Wesson’s “political speech,” in violation of the First Amendment.
Second, subpoena is invalid as “an impermissible restriction on Smith & Wesson’s commercial speech,” in violation of the First Amendment.
Third, the subpoena infringes upon Smith & Wesson’s Second Amendment rights in two respects. It inhibits Smith & Wesson’s ability to engage in the lawful manufacture, distribution, and sale of firearms. Moreover, the Attorney General’s motives for issuing the subpoena, namely chilling the exercise of Smith & Wesson’s Second Amendment rights, is impermissible.
Fourth, for similar reasons, the subpoena infringes upon gun owners’ Second Amendment rights.
Fifth, by targeting of firearms manufacturers for burdensome subpoenas of a sort not issued against non-firearms entities, the Attorney General has deprived Smith & Wesson of the equal protection of the laws guaranteed by the Fourteenth Amendment.
Sixth, Smith & Wesson had been deprived of its “Due Process” right to a “neutral, disinterested prosecutor.”
Seventh, the subpoena violates the Fourth Amendment’s proscription of unreasonable searches and seizures.” More particularly, the subpoena is (1) “vastly overbroad,” (2) “seeks information related to opinion or the basis of a legal position,” (3) demands information about lawful conduct that is protected under the First, Second, and Fourteenth Amendments,  unrelated to any legitimate investigative purpose, and  “overly burdensome.”
Eighth, the subpoena and related investigation are preempted by the Protection of Lawful Commerce in Arms Act (“PLCAA”).
Ninth, the subpoena and related investigation violate the dormant commerce clause. Because Smith & Wesson’s advertises and markets nationally, the Attorney General’s actions would largely have extraterritorial effects, i.e., effects outside the state of New Jersey.
Tenth, the Attorney General’s issuance of the subpoena (1) without having a good faith basis for conducting an investigation; and (2) with the impermissible intent of prevent Smith & Wesson from exercising its right to express views contrary to the Attorney General’s, constitutes an abuse of process under the common law.
Observations: Younger v. Harris Abstention
Perhaps one of the first hurdles plaintiffs will have to surmount is the Younger v. Harris abstention doctrine. In Younger v. Harris, 401 U.S. 37, 46 (1971), the Supreme Court held that a federal court should not enjoin a pending state criminal proceeding, except in the very unusual situation that an injunction is necessary to prevent great and immediate irreparable injury. The decision rested on a “proper respect for the fundamental role of States in our federal system.” Ohio Civil Rights Comm’n v. Dayton Schools, 477 U.S. 619, 626 (1986).
The Supreme Court has applied the Younger principle to state civil proceedings involving important state interests. Id. It has also applied Younger to state administrative proceedings in which important state interests are vindicated, so long as the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim in the course of those proceedings. Ohio Civil Rights Commission, id. at 627.
The New Jersey Attorney General must seek a court order enforcing the subpoena. The Consumer Fraud Act makes no special provisions for enforcement actions, and therefore enforcement is presumably governed by N.J. Ct. R. 1:9-6. See, Vornado, Inc. v. Potter, 159 N.J.Super. 32 (1978)(Pressler, J.); In re Application of Waterfront Com., 32 N.J. 323, 339 (1960). Assuming that is so, the Attorney General’s use of his investigatory powers are within the control of the state courts. New Jersey certainly has a significant state interest in the enforcement of its consumer fraud laws. Moreover, the Consumer Fraud Act provides for a civil enforcement action “akin to a criminal prosecution” in “important respects.” While private rights of action are permitted and most Consumer Fraud Act cases are brought by private consumers to recover damages, when the Attorney General brings suit, the action is akin to a criminal prosecution in that it is “characteristically initiated to sanction the federal plaintiff for some wrongful act.” Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 79 (2013).
The New Jersey courts can, and no doubt would, address Smith & Wesson’s constitutional claims. Indeed, because the New Jersey Supreme Court has interpreted the provisions of the state constitution that parallel federal constitutional guarantees more broadly, Smith & Wesson may actually have greater rights under the New Jersey Constitution than under its federal counterpart. See, State v. Hunt, 450 A.2d 952 (N.J. 1982); Deborah T. Poritz, The 2007 Chief Justice Joseph Weintraub Lecture: The New Jersey Supreme Court: A Leadership Court In Individual Rights, 60 RUTGERS L. REV. 705 (2008). Granted, the company has not raised any claims under the New Jersey Constitution, but such claims would be barred in federal court by Eleventh Amendment immunity, see, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 119-21 (1984).
And, a state court could exercise its discretion with regard to scope and breadth of the subpoena, and take a more nuanced approach not limited to consideration of federal constitutional (or state) issues. Indeed, state court review of the subpoena might potentially obviate some of the constitutional claims.
Younger abstention is appropriate only when state court proceedings have been initiated “before any proceedings of substance on the merits have taken place in the federal court.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238–239 (1984). However, when a recipient of an administrative subpoena seeks to challenge its validity, the state proceedings arguably commence with the subpoena’s issuance, where the subpoena’s enforcement is subject to the supervision of the state court system. If the law were otherwise, it would create a sort of race to the courthouse, where even now the Attorney General could seek to file an action to enforce the subpoena before the federal court rules on any motion for preliminary injunctive relief. And such a rule would reward Smith & Wesson for filing suit in federal court to enjoin the subpoena, rather than seeking to quash the subpoena in state court or advising the Attorney General that it would not comply with the subpoena unless the Attorney General successfully pursued an action to enforce the subpoena.
If Smith & Wesson seeks to fit within the “bad faith” exception to the Younger doctrine, Younger v. Harris, 401 U.S. at 53-54; see, Dombrowski v. Pfister, 380 U.S. 479 (1965), it is unlikely to succeed. Commentators have suggested that the universe of valid bad-faith harassment claims is virtually empty, 17B VIKRAM DAVID AMAR, FED. PRAC. & PROC. JURIS. § 4255 (3d ed.)(Wright & Miller); Owen M. Fiss, Dombrowski, 86 YALE L.J. 1103, 1105 (1977); C. Keith Wingate, The Bad-Faith-Harassment Exception to the Younger Doctrine, Exploring the Empty Universe, 5 REV. OF LIT. 123 (1986). All of Smith & Wesson’s claims with regard to this one subpoena can be presented in state court proceedings that the Attorney General must initiate before enforcing the subpoena, and Smith & Wesson launches no allegations of impermissible bias on the part of New Jersey’s judiciary. See, Juidice v. Vail, 430 U.S. 327, 338, (1977); Moore v. Sims, 442 U.S. 415, 432 (1979); 17B FED. PRAC. & PROC. JURIS. §§ 4255.
In any event, the scope of the administrative subpoena power is generally quite broad. Endicott Johnson v. Perkins, 317 U.S. 501 (1943); United States v. Morton Salt Co., 338 U.S. 632 (1950); In Re Doe, 294 N.J. Super. 108, 119-20, 682 A.2d 753 (1996). Nevertheless, Smith & Wesson’s lawsuit raises interesting questions. It raises a question regarding the federal constitutional limitations on the scope of State Attorneys General’ subpoena powers. It also brings into focus the impact allegations of improper motivations have upon the validity of the subpoenas or their scope, see, Department of Commerce v. New York, 139 S.Ct. 2551, 2573-76 (2019) ; Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972) (White, J.); id. at 709-10 (Powell, J., concurring). Finally, it raises questions regarding potential consumer fraud claims based on assertions regarding the right to possess guns and their effectiveness in terms of personal or home defense.
 There is the classic Dirty Harry interchange — Callahan: “We’re not just gonna let you walk out of here.” Criminal: “Who’s we, sucker?” Callahan: “Smith, Wesson and me.” Sudden Impact (1983). [Buyer beware: Your results may vary from those depicted in the movie.]
 The requests were far more extensive and overlapping than described in this brief summary.
 They include the Brady Center to Prevent Gun Violence, the Giffords Law Center to Prevent Gun Violence, and Everytown for Gun Safety (founded by Michael Bloomberg). James Brady and Gabby Giffords were shot in the head by gunmen during or just after political events.
 Even in the defamation context, the First Amendment does not immunize opinions from liability. Milkovich v. Lorain Journal, 497 U.S. 1, 18-19(1990). Opinions may be actionable if they imply underlying factual assertions. However, an assertion, whether or not viewed as an “opinion,” must be provably false. Id. at 19-20 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)). See generally, DAN B. DOBBS, THE LAW OF TORTS §477 (2000).
With respect to assertions regarding the law, one should distinguish normative assertions about what the law or judicial doctrine should be from descriptive assertions purporting to set forth what the law or judicial doctrine is. Id. at §478, at 1368. Moreover, unqualified statements that assume otherwise valid statutory law is subject to invalidation on Second Amendment grounds may be misleading to consumers, given the significantly undeveloped state of Second Amendment doctrine.
 The classic, albeit somewhat dated, full-length treatment of government speech is MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983). Yudof discusses the “Due Process” limitations on stigmatizing government speech at some length, id. at 263-80, concluding that Paul v. Davis, 424 U.S. 693 (1976), and its progeny “gets the federal courts out of policing excesses in government communications. Id. at 280.
 In Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53 (2019), the Connecticut Supreme Court extensively discussed the question of whether the PLCAA preempted Connecticut’s consumer protection and unfair trade practice laws.
 17B VIKRAM DAVID AMAR, FED. PRAC. & PROC. JURIS. §§ 4251-4254 (3d ed.)(Wright & Miller)
 The Court cited Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), Juidice v. Vail, 430 U.S. 327 (1977), Trainor v. Hernandez, 431 U.S. 434 (1977), and Moore v. Sims, 442 U.S. 415, 423 (1979))
 Separately, and more controversially, the Court has applied it to injunctions against state and local law enforcement authorities for violation of constitutional rights. See, e.g., O’Shea v. Littleton, 414 U.S. 488 (1974); Rizzo v. Goode, 423 U.S. 362 (1976).
 New Jersey Executive Comm’n on Ethical Standards v. Byrne, 238 N.J. Super. 84 (1990)(quashing administrative subpoena because the subpoena was promulgated to enforce an invalidly promulgated ethics code); In re Application of Waterfront Com., 32 N.J. 323, 339 (1960); see generally, JOHN H. KLOCK, 1 N.J. PRAC., COURT RULES ANNOTATED R 1:9-6 (available on westlaw).
 The Consumer Fraud Act (CFA) is intended to protect consumers by eliminating sharp practices and dealings in the marketing of merchandise. Plemmons v. Blue Chip Ins. Services, Inc., 387 N.J. Super. 551, 904 A.2d 825 (A.D. 2006).
 Even then, the damages are trebled.
 The Attorney General has authority to seek to address and enjoin violations of Consumer Fraud Act whether or not any person has been misled, damaged, or deceived thereby, but private persons must be misled and damaged as proximate result of violation of Act in order to have standing to sue. Knapp v. Potamkin Motors Corp., 253 N.J. Super. 502, 602 A.2d 302 (Super. Ct. 1991).
 Of course, the federalism questions raised by the dormant commerce clause and preemption claims, which arguably pit federal and state interests against each other, may be less likely to receive a sympathetic hearing in a state court rather than a federal court.
 In Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U.S. 423, ___ (1982), the Court held that federal courts should refrain from enjoining lawyer disciplinary proceedings initiated by state ethics committees if the proceedings are within the appellate jurisdiction of the appropriate state supreme court.
 Younger, 401 U.S. at 46 (the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution is not sufficient to obviate the Younger doctrine.)
 Graham Hughes, Administrative Subpoenas and The Grand Jury: Converging Streams Of Criminal And Civil Compulsory Process, 47 VAND. L. REV. 573, 587-89 (1994).
 Department of Commerce v. New York, was a challenge to the Secretary of Commerce decision to add a question regarding citizenship to the decennial census. The Court concluded that the Secretary could permissibly do so, but that his stated reasons for doing so were pretextual. Of course, both Department of Commerce and Smith & Wesson involve requests for information. However, a critical distinction between the two is that the pretext inquiry in the former was in conjunction with both record review of the Secretary’s action and a requirement for reasoned explanation. Such requirements are largely based in the federal Administrative Procedure Act, not the Constitution. Moreover, typically record review and reasoned explanation requirements are not imposed with respect to the exercise of prosecutorial discretion. See, Heckler v. Chaney, 470 U.S. 821 (1985)(agency inaction); Wayte v. U.S., 470 U.S. 598 607-610 (1985)(selective prosecution)(“the decision to prosecute is particularly ill-suited to judicial review”). For a discussion of Department of Commerce, see What the Census Case Means for Administrative Law: Harder Look Review? – Yale Journal on Regulation (yalejreg.com).
 Given Second Amendment advocates’ penchant for analogizing the Second Amendment and the Free Speech Clause, a reference to Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972) (White, J.); id. at 709-10 (Powell, J., concurring), can be anticipated. But the required disclosure of a journalist’s confidential source at the very least seems distinct from seeking information for gun manufacturers regarding their own advertisements (which of course are public) and the information possessed by gun manufacturers regarding for the basis of representations made in those advertisements.