BENTON - Illinois attorney general Kwame Raoul claims U.S. District Judge Staci Yandle lacks jurisdiction over a challenge to the Firearm Industry Responsibility Act because he hasn’t started enforcing it.
Raoul moved on Oct. 19 to dismiss a complaint filed by the National Shooting Sports Federation, which sued for an injunction against the liability law.
Assistant attorney general Kathryn Muse wrote, “The future injury National Shooting Sports Foundation anticipates is too speculative and uncertain to be considered imminent.”
Muse claimed a plaintiff seeking review of a statute before enforcement must allege intent to engage in conduct the statute proscribed and a credible threat of enforcement.
“Without knowing what the plaintiff intends to do, it is impossible to determine whether that conduct is arguably proscribed by the challenged statute, much less whether it subjects the plaintiff to a credible threat of enforcement,” she wrote.
“Nor is there any reason to infer from the basic fact that National Shooting Sports Foundation members participate in firearms commerce that they will do so unlawfully,” she added.
Gov. J.B. Pritzker signed the Firearm Industry Responsibility Act in August, adding a section to state consumer fraud law.
The law extended the consumer law’s right of civil action by the state or private parties to recover damages from gun makers and dealers who knowingly create dangerous conditions.
It also prohibited advertising that promotes unlawful paramilitary activity or encourages minors to engage in unlawful firearm use.
Two days later, the National Shooting Sports Foundation (NSSF) sued for declaration that the law violated the U.S. Constitution and a firearm law Congress passed in 2005.
NSSF counsel Andrew Lothson of Chicago claimed Congress prohibited state law civil actions against gun makers and dealers resulting from criminal misuse of firearms.
Lothson claimed Illinois legislators removed traditional elements of law ensuring that judges and juries do not impose liability on private parties for constitutionally protected conduct.
He claimed they allowed courts to impose liability on industry members for actions of third party criminals they never dealt with.
He added that the First Amendment prohibits punishment of truthful speech about lawful products even if the products are dangerous or the speech is unpopular.
Lothson claimed the Second Amendment protects commerce in arms.
He also claimed due process prohibits punishment of a private party for the conduct of another.
Raoul’s response dealt with jurisdiction and didn’t contest the allegations.
Muse claimed in the motion to dismiss that an association has standing when its members would have standing, when the interests it seeks to protect are germane to its purpose, and when neither the claim asserted nor the relief requested requires participation of individual members.
She claimed NSSF didn’t identify how any member had standing to sue.
She claimed the foundation asked to enjoin enforcement against 10,000 unidentified business entities but didn’t identify a threat of enforcement against a single one.
She added that NSSF set forth an unsupported and provocative opinion about a long conspiracy to bankrupt the firearms industry.
Muse claimed it didn’t describe a controversy that allowed a court to weigh in on the abstract.
She argued an injury must be concrete and particularized as well as actual or imminent.
Muse defined imminent as certainly impending and not too speculative.
She claimed the foundation speculated that the attorney general might some day enforce the law against FIRA or its members.
“The future injury National Shooting Sports Foundation anticipates is too speculative and uncertain to be considered imminent,” she wrote.
Muse claimed the foundation brought five claims, and the law contained four prohibitions.
She argued that NSSF must establish standing for each claim and each form of relief it seeks.
She claimed reliance on hypothetical questions instead of particular facts highlighted the premature nature of the suit.
“This matter is simply not ripe for adjudication,” she wrote.