Federal appeals court has ruled that Mexico can sue a group of US gun manufacturers in a case against illegal trafficking

01-02-2024

Alfredo Naim Navarrete Piter

International Justice and Human Rights Researcher

Global Human Rights Defence

On January 22nd, the Mexican government achieved its first victory in its efforts to hold U.S. arms manufacturers accountable for what the government considers negligent practices facilitating the illegal trafficking of arms into Mexico. This occurred when a Court of Appeals overturned a first-instance ruling in which a District Court held that arms manufacturers enjoyed immunity under the Protection of Lawful Commerce in Arms Act (PLCAA), a federal law providing arms makers with broad protection against the misuse of their products. The PLCAA proscribes certain types of lawsuits against them in state or federal courts in the United States.

In august 2021 the Mexican government filed a 10-billion-dollar suit against US firearms manufacturers such as Smith & Wesson Brands, Barrett firearms and Colt´s Manufacturing Company (the defendants), stating that the flow of guns into Mexico is a foreseeable result of the companies deliberate and knowing decisions to design, market, distribute, and sell guns in ways they now will virtual certainty will supply criminals in Mexico, circumventing US laws in order to profit from the criminal market. The complaint stated that almost all guns retrieved from crime scenes in Mexico were trafficked from the United States (around 70% to 90%) and that the combined defendants produced almost 70% of the weapons illegally trafficked into Mexico. It also mentioned that these companies sell heavy assault weaponry (already proven in battle) to the general public, which wen trafficked south, is used to combat the Mexican military and police who are fighting to stop the drug trade. As well that the strong legislation in Mexico regarding guns purchase makes it virtually impossible for criminals to get weapons in lawfully in the country, where there is only one state owned gun shop which emits less than fifty arms licenses a year.

The Mexican government argued that the arms manufacturers undermined these restrictive laws by persistently supplying a torrent of guns to the drug cartels, arms which are sometimes also designed with motives or qualities meant specifically to appeal the illegal criminal market in Mexico, such as images of famous revolutionary freedom fighter Emiliano Zapata. To the previous it is added the fact that weapons are designed to be easily modified to fire automatically and to be readily transferable on the criminal market with easy to deface serial numbers. In this regard it is mentioned that gun companies have not set in place safety protocols in their distribution systems to detect and deter the gun trafficking to Mexico.

The Mexican government stated that he PLCCA was not applicable since the Act in questions proscribes actions against arms manufacturers for damage caused in the United States. In the present case the damage was alleged to be caused in Mexican territory. Finally, the Mexican government was emphatic in stating that the action was not an attack to the second amendment rights of US citizens to bear arms but rather an attempt to address the lack of due diligence in the commercial practices of gun companies which causes dead and destruction in Mexico: “The cartels have no Second Amendment rigths, and the Defendants have no right to supply them”.

To the previous, the defendants argued that the PLCAA provided firearms manufacturers and sellers with broad immunity against lawsuits claiming harms resulting from the criminal or unlawful misuse of a firearm by a third party. Moreover, they mention that even if Mexico alleges that the PLCAA is not applicable since the damage was caused outside the United States, still the act in question protects firearms manufacturers from being sued in the US based on their conducts in the US. They also argued that a foreigner applicant cannot succeed where domestic applicants have not with the use of the same arguments. In several cases it has been decided that firearms companies cannot be held responsible for injuries inflicted by third parties and in this case, the harm and the third parties are remote. Finally, among other things, it is also stated that the defendants owe no legal duty towards Mexico and that in the particular case, the Mexican government intended to impose its gun control policies to the United States.

To the previous agreed Judge Frank Dennis Saylor, who ruled that the PLCAA “unequivocally” bared lawsuits against arms manufacturers seeking to hold them accountable when people use guns for their intended purposely and that no matter how sympathetic the court was for the people of Mexico and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the Law. Therefore, the claims of the government of Mexico were dismissed under the understanding that even if the harm was caused in Mexico, the actions allegedly claimed as the cause of the harm occurred in the United States, therefore the PLCAA and no the Mexican Law on Civil Liability was applicable.

According to the representation of Mexico, the decision of the district court oversees that even if gun makers cannot be sued for injuries that occur in the USA the federal law does not shield them from liability over the illegal trafficking of guns to criminals in Mexican territory. This is because the PLCAA cannot be applicable extraterritorially and it should be interpreted only to have a domestic scope.

The court of appeals agreed with the district court in the sense that in fact, the conducts claimed as unlawful by Mexico occurred in the United States and were of domestic jurisdiction and related to the PLCAA. It also stated in concurrence with the district court that the PLCAA was applicable as well to civil suits submitted by foreign governments since the intent of the US Congress was to protect the gun industry from certain types of legal actions, regardless of who the applicants were. Finally, the court of appeals decided that the PLCAA did not prevent the case brought forward by Mexico to continue it course since the PLCAA admitted an exception regarding cases in which firearms companies violated statutes, which in the present case was one of the main points alleged by Mexico as the government considers that firearms companies knowingly act unlawfully and violate federal laws by adding and abetting illegal downstream sales, and by selling unlawful machineguns. 

Even if the court of appeals considered that there are sufficient grounds to sue the arms industry of the United States, this only means that Mexico will be given the chance to prove in court that the manufacturers and sellers are liable for the knowing violation of a statute applicable to the sale or marketing of guns, acting with negligence and aiding the trafficking of arms to Mexico.

Sources and further reading:

Camhaji, E. (2024, January 25). Alejandro Celorio, the lawyer leading Mexico’s lawsuit against US gun manufacturers: ‘The arms industry has blood on its hands’. EL PAÍS English. https://english.elpais.com/international/2024-01-25/alejandro-celorio-the-lawyer-leading-mexicos-lawsuit-against-us-gun-manufacturers-the-arms-industry-has-blood-on-its-hands.html

Estados Unidos Mexicanos vs. Smith & Wesson Brands inc. And others. Copmplaint, 1:21-cv-11269 (Disctrict Court for the District of Massachusetts).

Estados Unidos Mexicanos vs. Smith & Wesson Brands inc. And others. Joint Memorandum of Law in Support of Defendants´Motions to Dismiss., 1:21-cv-11269-FDS (Disctrict Court for the District of Massachusetts).

Estados Unidos Mexicanos vs. Smith & Wesson Brands inc. And others., 1:21-cv-11269-FDS (Disctrict Court for the District of Massachusetts 30 September 2022).

Estados Unidos Mexicanos vs. Smith & Wesson Brands, Inc., 22-1823 (United States Court of Appeals for the First Circuit 22 January 2024).

Exteriores, S. de R. (n.d.). Mexican government wins appeal in U.S. court in lawsuit against gun manufacturers and distributors. gob.mx. Retrieved 29 January 2024, from http://www.gob.mx/sre/prensa/mexican-government-wins-appeal-in-u-s-court-in-lawsuit-against-gun-manufacturers-and-distributors?idiom=en

Ray, S. (n.d.). Mexico’s $10 Billion Lawsuit Against U.S. Gunmakers Can Proceed, Appeals Court Rules. Forbes. Retrieved 29 January 2024, from https://www.forbes.com/sites/siladityaray/2024/01/23/us-appeals-court-allows-mexicos-10-billion-lawsuit-against-us-gunmakers-to-proceed/

Raymond, N., & Raymond, N. (2024, January 23). US appeals court revives Mexico’s $10 bln lawsuit against gun makers. Reuters. https://www.reuters.com/world/us/us-appeals-court-revives-mexicos-10-billion-lawsuit-against-gun-makers-2024-01-22/

Rios, D. A., Sahar Akbarzai, Michael. (2024, January 23). Mexico can sue US gunmakers, federal appeals court rules. CNN. https://www.cnn.com/2024/01/23/us/mexico-lawsuit-us-gun-manufacturers/index.html

Stempel, J. (2022, October 3). U.S. judge dismisses Mexico’s $10 billion lawsuit against gun makers, Mexico to appeal. Reuters. https://www.reuters.com/legal/us-judge-dismisses-mexicos-10-bln-lawsuit-against-gun-makers-2022-09-30/

Thrush, G. (2024, January 23). Appeals Court Revives Mexico’s Lawsuit Against Gunmakers. The New York Times. https://www.nytimes.com/2024/01/22/us/politics/appeals-court-mexico-lawsuit-gunmakers.html

US appeals court revives Mexico’s $10bn lawsuit against gunmakers. (2024, January 23). BBC News. https://www.bbc.com/news/world-us-canada-68071549