The National Shooting Sports Foundations Inc. (NSSF) is suing Illinois Attorney General Kwame Raoul in response to a bill signed by Gov. J.B. Pritkzer on Aug. 12, which “radically expands liability in Illinois for members of the firearm industry - and them alone.”
The lawsuit was filed Monday in the U.S. District Court for the Southern District of Illinois through Edwardsville attorney Gary Pinter and Chicago attorney Andrew Lothson of Swanson Martin & Bell LLP. NSSF is also represented by Clement & Murphy PLLC in Alexandria, Va.
NSSF argues that while House Bill 218, or the Firearm Industry Responsibility Act, purports to prevent firearms from being used to endanger public safety or health, the law “does not regulate the use (or misuse) of firearms. Nor does it impose liability on individuals who misuse firearms to the detriment of themselves or others.”
“Instead, HB 218 regulates selling, manufacturing, and advertising lawful (and constitutionally protected) firearms and related products,” the lawsuit states. “In other words, HB 218 regulates commerce in and speech relating to arms - even when that commerce and speech takes place entirely outside of Illinois, as will often be the case.”
NSSF further argues that the measure eliminates traditional elements of tort law to ensure that liability is not imposed on private parties for engaging in constitutionally protected conduct.
“Making matters worse, the statute jettisons traditional proximate cause in favor of allowing state courts to impose liability on licensed industry members for the actions of third-party criminals with whom the industry members never dealt,” the suit states.
Pritzker signed the Firearm Industry Responsibility Act into law at the Everytown for Gun Safety event in Chicago. The event ran from Aug. 10-13. During that time, the Illinois Supreme Court on Aug. 11 upheld the controversial “assault weapons” ban, declaring it constitutional. Pritzker signed the new liability law the next day.
“The State of Illinois will now be allowed to take legal action against firearms industry players that endanger the public safety and health of our people,” Pritzker said during the signing event.
“We hold opioid manufacturers accountable. Vaping companies accountable. Predatory lenders accountable. Gun manufacturers shouldn’t get to hide from the law - and now, they won’t be able to,” he added in a press release. “Here’s to an Illinois where everyone feels safe in every corner of our great state.
The law adds a new section to the Consumer Fraud and Deceptive Business Practices Act and applies to any “person, firm, corporation, company, partnership, society, joint stock company, or any other entity or association engaged in the design, manufacture, distribution, importation, marketing, wholesale, or retail sale of firearm-related products, including sales by mail, telephone, or Internet or in-person sales.”
Pritzker boasts that the new law prohibits gun manufacturers from advertising and marketing practices that encourage para-military or unlawful private militia activity. It also prohibits advertising to individuals under the age of 18 that encourages the use of a firearm in an unlawful manner, including the use of cartoons, stuffed animals and clothing targeted towards children.
Additionally, the law makes it easier for people to sue gun manufacturers.
“No single industry should be given a free pass to engage in unlawful, unfair or deceptive conduct,” Raoul stated in a press release. “The Firearms Industry Responsibility Act clarifies my office’s ability to use the Consumer Fraud and Deceptive Business Practices Act, which is a tool to hold businesses accountable for fraudulent or deceptive practices through civil litigation. It is how my office has protected the public from opioid manufacturers, vaping companies, tobacco companies and predatory lenders.”
However, NSSF argues in its lawsuit against Raoul that House Bill 218 paves the way for lawful conduct to be the basis of a tort action if the product is later used or possessed unlawfully by someone else in Illinois even if the product was not sold, made or distributed in Illinois.
The plaintiff adds that industry members will have to establish procedures to screen for customers who appear “‘at substantial risk of using a firearm-related product to harm … another individual,’ which describes most individuals with a heightened need to lawfully possess and lawfully carry a lawful firearm for self-defense.”
“After all, using a firearm-related product for self defense may entail harm to another - namely, against an assaultive person - and nothing in HB 218 limits its reach to only unlawful harm of others,” the suit states.
NSSF also argues that the new law is unconstitutional.
“The First Amendment prohibits states from punishing wide swaths of truthful speech about lawful products, even if the products are dangerous or the speech is unpopular,” the suit states.
“The Second Amendment protects commerce in arms,” it continues. “Numerous constitutional provisions prohibit states from regulating conduct that takes place wholly beyond their borders, even when that commerce has effects within the state. And the Due Process Clause prohibits states from punishing one private party for the conduct of another.”
Additionally, the lawsuit states that the new law establishes unconstitutional extraterritorial regulation, affecting lawful conduct that occurs outside of Illinois’ borders.
“What is more, because HB 218 creates liability even based on the behavior of third parties who are outside their control, firearm industry members can do very little to even attempt to lessen their potential liability; the only way to truly eliminate all risk of liability under HB 218 would be to cease operations altogether, even if those operations are lawful elsewhere,” the suit states.
“That is the definition of unconstitutional discrimination against, and an unconstitutional undue burden upon, interstate commerce,” it continues.
NSSF argues that while the constitutional claims are “reason enough to invalidate Illinois’ new statute,” the law is preempted by the Protection of Lawful Commerce in Arms Act signed in 2005.
The suit states that the Protection of Lawful Commerce in Arms Act was signed in response to a flood of lawsuits filed in the late 1990s and early 2000s by state and local governments seeking to impose civil liability on firearms and ammunitions manufacturers and sellers when third parties misused their products, based on negligence and nuisance claims.
NSSF argues that the legal fees associated with the previous lawsuits would have bankrupted the industry if they had been allowed to continue, which the plaintiff alleges “was in large part the point.”
“It did not take long for Congress to recognize these lawsuits for what they were: a coordinated effort to try to destroy the firearms industry by saddling it with liability for the acts of criminals,” the suit states.
“Illinois is now trying to resurrect the very kinds of lawsuits that the PLCAA was enacted to eliminate,” it adds. “Under HB 218, state officials and private parties may bring civil actions against licensed manufacturers and sellers of firearms, ammunition, and related products for damages and other relief resulting from the criminal use of a firearm by a third party. HB 218 therefore falls squarely within the express-preemption provision of the PLCAA.”
The Protection of Lawful Commerce in Arms Act prohibited all claims except for six specific types, which include circumstances in which the gun and ammunition manufacturer or seller engaged in a well-defined type of wrongful conduct, including manufacturing defects, fraudulent transfer, negligent entrustment and breach of contract or warranty.
“The kind of liability HB 218 seeks to impose does not fit within any of the narrow exceptions to the PLCAA’s preemptive scope …” the suit states. “HB 218 does not authorize suits by the U.S. Attorney General to enforce any federal laws; and it does not confine liability to instances in which a manufacturer or seller knowingly transferred a firearm to a prohibited person, negligently entrusted a firearm, breached a contract or warranty, or defectively made a product.”
Following The Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association v Bruen confirming the right to keep and bear arms, NSSF argues that states should make their laws more protective of the rights reaffirmed as fundamental.
“Unfortunately, it has prompted the opposite reaction in states that are least protective of the Second Amendment right. Almost immediately, some of the same few states that had endeavored to keep their law-abiding citizens from carrying firearms undertook efforts ‘to offset the impact of the court’s decision,’” the suit states.
NSSF is asking the court for an injunction preventing Illinois from enforcing the Firearm Industry Responsibility Act and a declaration that HB 218 is unconstitutional.
NSSF is a trade association for the firearm, ammunition, hunting and shooting sports industry and is based in Connecticut.
“NSSF’s mission is to promote, protect, and preserve hunting and shooting sports by providing leadership in addressing industry challenges, advancing participation in and understanding of hunting and shooting sports, reaffirming and strengthening its members’ commitment to the safe and responsible sale and use of their products, and promoting a political environment supportive of America’s traditional hunting and shooting heritage,” its lawsuit states.
U.S. District Court for the Southern District of Illinois case number 3:23-cv-2791