Same appellate judge who faulted New Jersey’s Matthew Platkin for “less-than-forthcoming approach to litigation” is hearing Smith & Wesson’s appeal, again. Lower court accused of “Catch-22” by pro-life pregnancy centers network.

The federal courts will not help you if the Democratic Attorney General of The Garden State is trying to shut your business down or scare your donors away.

This is the warning from a network pro-life pregnancy centres fighting an allegedly harassment subpoena by New Jersey AG Matthew Platkin. He seeks a variety of documents dating back to 10 years after a Federal Court ruled on Jan. 12, it did not have jurisdiction to hear its constitutional challenge.

First Choice Women’s Resource Centers has filed an urgent motion for an interim injunction, pending an appeal to the 3rd U.S. Circuit Court of Appeals. Circuit Court of Appeals accused U.S. district judge Michael Shipp of creating a “Catch-22 scenario” that would prevent any federal challenge to administrative subpoenas issued by state governments.

Shipp’s dismissal, they said, ignores a ruling by the 3rd Circuit two years earlier, which reinstated Smith & Wesson’s lawsuit against Platkin, because federal courts shouldn’t give up jurisdiction unless “orders are made that serve the judicial functions of state courts”.

This dispute is similar to challenges made against the constitutionality before administrative proceedings are completed of in-house judges at federal agencies.

The Securities & Exchange Commission took certified public accountant Michelle Cochran to court for seven years before the Supreme Court unanimously ruled last year that she did not have to wait to be heard by a federal judge. The agency then promised to close its case against Cochran and not file another one to dismiss her suit.

Platkin’s subpoena issued under the New Jersey Consumer Fraud Act in October 2020 sought documents relating to Smith & Wesson’s state advertisements regarding “home safety benefits, concealed carry benefits, personal protection, home defense benefits, personal safety or personal defense” when owning a firearm.

The 3rd Circuit panel of three judges stated in March 2022 that the gun manufacturer only faces a “possibility” of contempt because it “eventually complied” with the state court’s order to hand over documents. This is “insufficient for [federal] abstention”, the panel concluded.

In a concurring opinion, Judge Paul Matey (appointed by President Trump) wrote that the case raises “novel issues at the intersection of the First Amendment and the Second Amendment.” Platkin, in his opinion, “washed aside concerns” regarding the rights of constituents in “the name of safety” as he always does.

He wrote that future firearms instructors might not want to advertise their’safety training’ services, and outdoor magazines could hesitate before discussing the product’s content. Platkin “selectively quoted” one Smith & Wesson ad to misrepresent what it claimed, a “less-than-forthcoming approach to litigation” that could warrant “careful review of New Jersey’s entire investigation,” Matey said.

Platkin won the case with Evelyn Padin in late 2022, the newly appointed federal judge by President Biden to hear the reinstated matter. The case was sent back to the 3rd Circuit with the final action taking place on Nov. 15, oral arguments before a panel which included Judge Matey.

Gun makers have more flexibility to relocate to states that are friendlier to their mission than pro-life pregnancy clinics. Smith & Wesson moved to Tennessee, a gun-friendly state, last year. It had fled Massachusetts after 167 years of increasingly anti-gun policies.

First Choice had sought a temporary restraining against Platkin’s subpoena of documents, including “every” ad for “abortion pills reversal”. Judge Shipp decided without a motion from Platkin that he did not have jurisdiction to hear the lawsuit.

The ruling stated that the case is not “ripe”, because Platkin’s subpoenas do not “self-execute” and require a state’s contempt judgement against the target if they fail to comply. This means “no injury actual or imminent has occurred”, the ruling said.

Shipp cited the 5th Circuit’s ruling in a “factually similar” Google case, which was issued against a subpoena from Mississippi. Mississippi courts, like New Jersey, have the power to “quashing or modify” subpoenas. He did not cite precedents from his own circuit, 3rd.

He acknowledged that there are “factual similarities” between the 3rd Circuit ruling on Smith & Wesson and First Choice’s concerns about the “procedural tangle” created by simultaneous state and federal actions.

Shipp said he would not get ahead of the 3rd Circuit ruling on the Smith & Wesson case, as he is not abstaining, but merely deeming it not ripe.

Shipp acknowledged in a lengthy footnote that New Jersey subpoenas are “rarely if ever ripe to be adjudicated in federal court”, due to their structure under state laws, and preclusion principles which prevent a party relitigating an final judgment.

First Choice’s urgent motion argues Shipp ignored Platkin’s stated plan to “immediately” enforce the subpoena. This means the pregnancy center network is facing “imminent and concrete Article III injury” that falls under federal jurisdiction.

The subpoena, which seeks 10 years’ worth of private and sensitive information about donors, employees, and volunteers, “threatens the protected associations of this organization” because it is a threat to its protected status.

The motion states that “Parties can challenge judicial subpoenas, because they are court orders enforceable under the contempt powers,” regardless of Platkin’s “nonbinding commitment” to waive these sanctions in state court. The motion states that “no other action is required to make them eligible for redress.”

The network cited out-of circuit authority. In Twitter’s challenge of Texas AG Ken Paxton civil investigative request following its then permanent ban on former president Trump, the 9th Circuit explicitly rejected Google’s reasoning.