Lawsuit aims to stop law that exposes gun marketers to civil penalties

SPRINGFIELD — A federal lawsuit filed Monday aims to stop the enforcement of a measure signed into law by Gov. J.B. Pritzker two days ago that makes gun retailers or manufacturers subject to civil liabilities if they’re found to have engaged in marketing ploys that endanger the public.

The suit was filed on behalf of the National Shooting Sports Foundation, which also is one of the main groups behind a federal lawsuit alleging that Illinois’ ban on certain high-powered guns and high-capacity ammunition magazines violates the Second Amendment of the U.S. Constitution.

The lawsuit, filed in the Southern District of Illinois, names Attorney General Kwame Raoul as the defendant and focuses on the state’s Firearm Industry Responsibility Act, a measure Raoul championed. In addition to arguing the law violates the Second Amendment, the lawsuit alleges it violates the constitution’s First Amendment right of freedom of speech.

The plaintiff’s lawyers say the law could wrongly be used against gun dealers or manufacturers for “commerce and speech” that takes place outside of Illinois, and that it holds the firearms industry responsible for the conduct of “third party criminals with whom the industry members never dealt.”

“None of that is consistent with the Constitution,” the lawsuit states.

The lawsuit says that the First Amendment bars states from censoring “truthful speech about lawful products” even if they’re dangerous or if the speech is unpopular.

The suit also says that the Second Amendment protects “commerce in arms,” and that there are constitutional provisions prohibiting states from acting on alleged wrongdoing beyond their borders “even when that commerce has effects within the state.”

“All of that is reason enough to invalidate Illinois’ new statute,” the lawsuit states.

The suit also alleges the new law violates the federal Protection of Lawful Commerce in Arms Act of 2005, which barred any civil action “brought by any person against a manufacturer or seller of (firearms or ammunition)” for various damages “resulting from the criminal or unlawful misuse of (firearms or ammunition) by the person or a third party.”

During the spring legislative session, at least one opponent of the measure argued it violated that 2005 federal law. But Illinois Senate President Don Harmon, a Democrat from Oak Park, assured his chamber that the measure “does not conflict with federal law.”

On Tuesday morning, Raoul’s office issued a statement saying it is “committed to defending the Firearm Industry Responsibility Act in the interest of public safety.” A Pritzker spokesperson on Tuesday said the governor believes the law is constitutional and chalked up the lawsuit as another example of gun rights advocates trying to “reverse their losses at the ballot box in court.”

The measure was signed by Pritzker with great fanfare on Saturday in a celebratory ceremony at Chicago’s McCormick Place during a conference hosted by the national gun control group Everytown for Gun Safety.

The law allows firearms businesses to be sued not only if they advertise to people under 18, but also if they fail to take steps to prevent illegal sales, such as straw purchases, sell guns to someone who is not allowed to own one or sell them to someone whom the businesses believe could be a danger to themselves or someone else.

The law also allows civil action against the firearms businesses if they’re found to have marketed guns for unlawful paramilitary or private militia-related activities.

Raoul’s office has said the measure specifically excludes communications or promotional materials for lawful firearms safety programs such as hunting activities or sport shooting events.

The measure passed 71-40 in the Illinois House and 34-22 in the Senate, but not before Senate Republican Leader John Curran, of Downers Grove, warned that it could be challenged in court.

In determining whether firearm advertising campaigns are geared toward minors, the law says that could mean promotions that use caricatures that “reasonably appear to be minors or cartoon characters” or offer brand name merchandise for minors such as clothing, toys or stuffed animals or products in “sizes, colors, or designs that are specifically designed to be used by, or appeal to, minors.”

The NSSF was one of several gun rights plaintiffs, another being the Illinois State Rifle Association, that filed federal lawsuits to challenge the constitutionality of the state’s gun ban. Those suits were consolidated into one case before being heard in June by a federal appellate court panel in Chicago, which has yet to rule on the case.

Last week, the Illinois Supreme Court issued a 4-3 decision upholding the weapons ban following a legal challenge from plaintiffs that included Republican state Rep. Dan Caulkins. At least one other legal challenge to the ban remains at the state court level, one involving thousands of plaintiffs in downstate Effingham County.

The law took effect with Pritzker’s signature on Saturday.

jgorner@chicagotribune.com