As discussed in more detail on the Gun Industry Immunity policy page, a federal law called the Protection of Lawful Commerce in Arms Act (PLCAA) provides many firearm industry defendants with broad civil immunity from many common law tort actions. The federal industry immunity law also provides some important exceptions, including what has been called the “predicate exception,” which authorizes plaintiffs to bring civil actions against a firearm industry defendant who has knowingly violated a statute applicable to the sale or marketing of a firearm or certain other related products, if the violation was a proximate cause of the plaintiffs’ harm. There has been significant litigation in some cases over whether generally applicable state laws, such as broadly applicable consumer protection, unfair trade practice, or public nuisance laws, qualify as valid predicate statutes under PLCAA, or whether PLCAA’s predicate exception instead requires that the underlying state law more specifically regulate firearms.

Washington’s “Firearm Industry Responsibility and Gun Violence Victims’ Access to Justice Act” removes any ambiguity on that question and expressly codifies a firearm industry standard of conduct Code with obligations and prohibitions that are unquestionably and specifically applicable to the sale and marketing of firearms.

In 2023, Washington enacted the “Firearm Industry Responsibility and Gun Violence Victims’ Access to Justice Act”¹ to promote victims’ and public officials’ ability to bring civil lawsuits against the firearm industry for illegal conduct that causes harm. The law goes into effect on July 23, 2023.

The law creates a code of conduct requiring a firearm industry member engaged in the manufacture, distribution, importation, marketing, or wholesale or retail sale of a firearm industry product to:

• Not knowingly create, maintain, or contribute to a public nuisance in this state through the sale, manufacturing, distribution, importing, or marketing of a firearm industry product.
• Establish, implement, and enforce “reasonable controls” regarding its manufacture, sale, distribution, importing, use, and marketing of firearm industry products.
  • “Reasonable controls” are defined as reasonable procedures, safeguards, and business practices, including but not limited to screening, security, and inventory practices, that are designed and implemented to do all of the following:
    • 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;
    • Prevent the loss of a firearm industry product or theft of a firearm industry product from a firearm industry member; and
    • 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.

• Take reasonable precautions to ensure the firearm industry member does not sell or distribute a firearm industry product to a downstream distributor or retailer of firearm industry products that fails to establish and implement reasonable controls.
• Not manufacture, distribute, import, market, offer for wholesale, or offer for retail sale a firearm industry product that is:
  • Designed, sold, or marketed in a manner that foreseeably promotes conversion of legal firearm industry products into illegal firearm industry products; or
  • Designed, sold, or marketed in a manner that is targeted at minors or individuals who are legally prohibited from purchasing or possessing firearms.

A violation of the code of conduct is considered a public nuisance and a matter vitally affecting the public interest for the purpose of applying the state’s Consumer Protection Act. The law also states that a violation of the code of conduct is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the Act.

The law allows members of the public who have suffered harm by a firearms industry member’s violation of the code of conduct to bring a civil suit against the member. It also authorizes the state’s attorney general to enforce the law.

Washington provides that a product manufacturer is subject to liability if a claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.² Washington law further provides that:

“A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product: PROVIDED, That a firearm or ammunition shall not be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged. [emphasis added.]”²

In addition, state and local governmental entities, public and private agencies, and the employees of any state or local governmental entity or public or private agency, acting in good faith, are immune from liability for:

• Failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful;

• Preventing the sale or transfer of a firearm to a person who may lawfully receive or possess a firearm;

• Issuing a concealed pistol license or alien firearm license to a person ineligible for such a license;

• Failing to issue a concealed pistol license or alien firearm license to a person eligible for such a license;

• Revoking or failing to revoke an issued concealed pistol license or alien firearm license;

• Errors in preparing or transmitting information as part of determining a person’s eligibility to receive or possess a firearm, or eligibility for a concealed pistol license or alien firearm license;

• Issuing a dealer’s license to a person ineligible for such a license; or

• Failing to issue a dealer’s license to a person eligible for such a license.³

An application may be made to a court of competent jurisdiction for a writ of mandamus that directs an issuing agency to issue a concealed pistol license or alien firearm license that was wrongfully refused, directing that erroneous information resulting either in the refusal to issue a concealed pistol license or alien firearm license or the denial of a purchase application be corrected, or directing a law enforcement agency to approve an application to purchase a firearm or approve a dealer’s license that was wrongfully denied.⁴ A court must provide an expedited hearing for an application brought on one of these grounds, and a person granted a writ of mandamus shall be awarded reasonable attorneys’ fees and costs.⁵

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1. Wash. Rev. Code Ann. Chp. 7.48 as amended by 2023 WA SB 5078.[↩]
2. Wash. Rev. Code Ann. § 7.72.030(1).[↩]
3. Wash. Rev. Code Ann. § 9.41.0975(1).[↩]
4. Wash. Rev. Code Ann. § 9.41.0975(2).[↩]
5. Id.[↩]