(The Center Square) – A federal judge in Spokane has dismissed a lawsuit over a new Washington state law that can impose penalties on firearm manufacturers and gun dealers for potential consumer protection violations.
In an order issued Friday, U.S. District Court Judge Mary Dimke determined that the National Shooting Sports Foundation lacked standing and failed to identify an actionable claim in challenging provisions of Senate Bill 5078, known as the Firearm Industry Responsibility and Gun Violence Victims’ Access to Justice Act.
Willful violations of the act can result in civil fines and revocation of a dealer’s federal firearms license. Firearm industry members are required to enforce “reasonable controls” in ensuring they don’t manufacture, import, distribute, market, convert, or sell a firearm or related product to minors or persons prohibited from buying or possessing firearms. That includes taking precautions against selling or distributing guns to “straw purchasers,” gun traffickers, or “downstream” distributors or retailers who fail to implement “reasonable controls.”
Violations are considered “public nuisances” under Washington state’s Consumer Protection Act and subject to investigations and legal action by the state Attorney General’s Office. Along with the loss of a firearms license, civil penalties can include punitive damages up to three times actual damages sustained by the state, including attorney fees and related costs.
Requested by Gov. Jay Inslee and Attorney General Bob Ferguson, SB 5078 was approved last April by state lawmakers along party lines with Democrats largely in support and Republicans opposed. The law, which took effect in July, was immediately challenged in April by the National Shooting Sports Foundation, a membership of more than 10,000 manufacturers, distributors, and retailers of firearms, ammunition, and related products across the United State.
In its lawsuit, the NSSF alleged the new state law was an unconstitutional violation of its members’ First and Second Amendment rights of free speech – that is, promoting or marketing their lawful products – and individual rights to keep and bear arms. The foundation said its members face “a very real threat of being sued for no reason other than continuing to lawfully make, sell, or market lawful products (the state) does not like.”
But in her ruling, Dimke declined to consider the “constitutional implications of NSSF’s allegations.” Instead, she dismissed the lawsuit on other grounds, saying a “threat of enforcement” by the state of the new law was generally vague and did not provide “any facts specific enough for standing.”
“The ‘history of enforcement factor’ carries little weight when the challenged law is relatively new, and the record contains little information as to enforcement,” Dimke wrote, later adding, “A brand-new civil tort statute, without more, does not justify a federal court’s intervention.”
With her decision, Dimke supported a motion by the state Attorney General’s Office to dismiss the complaint without prejudice – meaning it could potentially be refiled in the future – and denying an injunction sought by the NSSF to bar implementation of the new law.
“My legal team remains undefeated against the gun lobby in court,” Ferguson said afterward in a press release. “This law protects Washingtonians from gun violence by ensuring that gun industry members face real accountability when their irresponsible conduct harms our communities.”
A federal law, the Protection of Lawful Commerce in Arms Act, shields gun manufacturers and sellers from liability in some circumstances. But Ferguson said Congress has allowed states to regulate firearm sales and marketing practices with such exemptions as SB 5078.
Four other states — Delaware, New York, New Jersey, and California — have adopted similar measures that have been upheld by courts, including the New York law that survived a challenge in federal court.
In Washington, seven other legal challenges over firearm regulations – including legislature-enacted sales bans on high-capacity magazines and so-called “assault weapon” semiautomatic rifles – have been dismissed or remain pending in state and federal courts.
