OLYMPIA, Wash., April 14, 2023—The Washington State Legislature passed a today bill that requires gun manufacturers and dealers take “reasonable controls” to prevent their products from getting into the hands of dangerous individuals or be liable for gun violence. The bill now heads to Governor Jay Inslee’s desk to be signed into law.

“Reasonable controls” means reasonable procedures, safeguards, and business practices, including but not limited to screening, security, and inventory practices, that are designed and implemented to:

1. prevent the sale or distribution of a firearm industry product to a straw purchaser, a firearm trafficker, a person prohibited from possessing a firearm under state or federal law, or a person who the firearm industry member has reasonable cause to believe is at substantial risk of using a firearm industry product to harm themselves or unlawfully harm another, or of unlawfully possessing or using a firearm industry product;
2. prevent the loss of a firearm industry product or theft of a firearm industry product from a firearm industry member; and
3. ensure that the firearm industry member complies with all provisions of state and federal law and does not otherwise promote the unlawful sale, manufacture, distribution, importing, possession, marketing, or use of a firearm industry product.

Senate Bill 5078, sponsored by Senator Jamie Pedersen (D-Seattle) is jointly requested by Attorney General Bob Ferguson and Gov. Inslee. The bill passed the Senate today with a 26-20 concurrence vote with three excused, and on April 10 passed the House with a 57-41 vote. It originally passed the Senate with a 28-21 vote on March 2, 2023.

The Senate just gave final approval of #SB5078 to ensure the firearms industry takes proper precautions to keep guns out of the hands of people who should not have them. The bill now heads to @GovInslee to be signed into law. #WALeg https://t.co/Esz8YZulKe pic.twitter.com/yQ4rs61s0I

— WA Senate Democrats (@WASenDemocrats) April 14, 2023

Called the Firearm Industry Responsibility & Gun Violence Victims’ Access to Justice Act, it ensures that firearms manufacturers and sellers will face liability if they fail to establish, implement and enforce reasonable controls in the manufacture, sale, distribution and marketing of firearms to keep them out of the hands of dangerous individuals, according to the Washington State Attorney General’s Office.

Changes in federal law since 2005 have shielded the gun industry from liability and barred lawsuits even when their negligence is provable, the AG Office says.

That law, the federal Protection of Lawful Commerce in Arms Act (PLCAA), shields gun manufacturers and sellers from liability in some circumstances. However, Congress invited states to regulate firearm sales and marketing practices by exempting such state laws from PLCAA. SB 5078 creates such a law.

“In 2005, Congress took unprecedented action to give gun manufacturers blanket immunity for gun violence perpetrated as a direct result of their marketing and distribution of firearms,” Attorney general Bob Ferguson said. “Today the Legislature took an important step to right that wrong and protect Washingtonians from gun violence by ensuring that the gun industry faces real accountability when its irresponsible conduct harms our communities.”

“I’m proud that this year we’ve increased accountability among manufacturers and dealers,” Inslee said. “These business entities play a crucial role in keeping our communities safe from gun violence. Thank you to AG Ferguson, the legislators and community organizations who helped pass this bill.”

“Businesses that produce and sell dangerous products have a duty to keep communities safe,” Pedersen said. “SB 5078 will require the firearms industry to do its part to reduce and prevent gun violence by tightening up their compliance with our state laws.”

Four other states — Delaware, New York, New Jersey and California — have adopted similar legislation, and courts have upheld laws that fall under the PLCAA exception allowing for state regulation of firearm sales and marketing.

In the wake of the mass shooting at a Buffalo, N.Y., grocery store in May of last year, the city is suing several gun makers under New York’s law. The New York law, similar to SB 5078, has already survived a challenge in federal court, the AG Officer says.

Brief Summary of SB-5078

According to the bill analysis:

• Prohibits firearm industry members from knowingly creating, maintaining, or contributing to a public nuisance; and from designing, selling, and marketing firearm industry products that promote conversion of legal products into illegal products, or which target minors or individuals prohibited from purchasing or possessing firearms.
• Requires firearm industry members to establish, implement, and enforce reasonable controls to prevent sale and distribution to certain individuals, prevent loss and theft of firearm industry products, and ensure compliance with state and federal law; and to take reasonable precautions to prevent sale or distribution of firearm industry products to distributors and retailers that have failed to establish and implement reasonable controls.
• Establishes that violations constitute a public nuisance and are per se actionable under the Consumer Protection Act.
• Authorizes the Attorney General to investigate suspected violations and bring enforcement actions against firearm industry members.

To prevail in a legal action under the Firearm Industry Responsibility & Gun Violence Victims’ Access to Justice Act, the party seeking relief is not required to demonstrate that the firearm industry member acted with the purpose to engage in a public nuisance or otherwise cause harm to the public.