Federal judge upholds Washington state firearm distribution law

(CN) — A new firearm regulation in Washington state will take effect after a federal judge on Friday struck down a trade organization’s attempt to block it.

“My legal team remains undefeated against the gun lobby in court,” said state Attorney General Bob Ferguson in a statement. “This law protects Washingtonians from gun violence by ensuring that gun industry members face real accountability when their irresponsible conduct harms our communities.”

The order from U.S. District Judge Mary Dimke dismissed a federal lawsuit from the National Shooting Sports Foundation challenging the constitutionality of Washington state’s Senate Bill 5078 or the “Firearm Industry Responsibility and Gun Violence Victims’ Access to Justice Act.”

The act — signed by Governor Jay Inslee on Apr. 25, 2023 — ensures that firearms manufacturers and sellers face liability if they fail to establish, implement and enforce reasonable controls in the manufacture, sale, distribution and marketing of firearms. Failing to do so would violate the state’s Consumer Protection Act and public nuisance law.

The new law also allows those injured or killed as a result of illegal firearms industry conduct to pursue damages under state law, offering a potential bypass to the federal Protection of Lawful Commerce in Arms Act passed in 2005. That law gives gun manufacturers and dealers immunity from civil suits for crimes committed with their products.

The foundation sued Ferguson over SB 5078 the same day Inslee signed it into law, claiming the 2005 act preempted the new law and that SB 5078 unlawfully regulates firearm industry members outside the state’s borders.

“SB 5078 prohibits any ‘firearm industry member’ — not just one that operates in Washington — from ‘knowingly creat[ing], maintain[ing] or contribut[ing] to a public nuisance in this state through the sale, manufacturing, distribution, importing, or marketing of a firearm industry product,’” the foundation said in its complaint. “And its requirement that industry members employ ‘reasonable controls’ is not limited to any commercial activities in Washington.”

Dimke disagreed with the timing and basis of the claim, however, explaining that the foundation never showed its members would continue conduct violating the law once it went into effect on July 23, 2023.

“Instead, NSSF relies on the fear that its members will be subject to liability for otherwise lawful conduct,” Dimke wrote. “There must be a further allegation that its members ‘intend to engage in conduct arguably proscribed’ by the law at issue.”

Dimke also tossed out the foundation’s claims the law violated the First and Second Amendments by regulating the promotional speech of lawful firearms and infringing on its members’ right to keep and bear arms. Notably, the foundation’s members are gun manufacturers, distributors and retailers.

Overall, the judge reasoned that the foundation’s complaint lacked enough specifics about how the law would impact its members’ constitutional interests. Dimke also said the Second Amendment only concerns the foundation’s members to the extent that their conduct implicates the individual right to keep and bear arms. It does not, Dimke wrote, “independently protect a proprietor’s right to sell firearms.”

A representative of the foundation did not immediately respond to a request for comment or an interview.

A different Second Amendment challenge from by the foundation — also filed on Apr. 25, 2023, in the Eastern District of Washington — is still live and challenges a different bill from the same reform package that bans the sale, manufacture and import of assault weapons to individuals who are not part of the military or law enforcement.

Follow @alannamayhampdx

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