Mexico v. Smith and & Wesson: Cross-Border Implications
Gun violence in Mexico has reached frightening levels. Criminal organizations murder thousands with near total impunity, using a wide range of firearms, from high-powered, military-grade rifles to sidearms. By and large, the efforts of Mexican military and police forces to control the mounting violence have been unsuccessful. Now, the Mexican government is trying a new approach to battling gun crime within its borders.
In August of 2021, Mexico filed suit in U.S. federal court against a slew of gun manufacturers from various countries, including the United States, Austria, and Italy. The complaint alleged that the defendants share responsibility for the alarming rise in gun violence and homicides and should pay Mexico billions in damages. However, the lawsuit faces serious substantive and procedural problems that may end in its dismissal. The gun manufacturers named in the suit continue to fight for that result.
Foreign Guns and Mexico’s Homicides
Many people in the U.S. are aware of the violent gun deaths that occur in Mexico. They have seen the disturbing headlines on a weekly basis: heavily armed criminals murder each other, the police, and innocent bystanders. But they may not be aware of relevant facts and current statistics compared to Mexico’s recent past. Between the years 2004 and 2018, gun deaths rose between 25% and 69%. Mexico has alleged that U.S. gun manufacturers share responsibility for this sharp rise of violence by failing to prevent guns from entering Mexico.
The complaint constructs its liability theory on two foundations: (1) that the delivery of guns from the defendants’ factories to Mexican cartel members is foreseeable; and (2) that the defendants have a duty to prevent cartels from acquiring their products. According to the lawsuit, the sources of this duty, include Mexican and U.S. laws. However, existing U.S. law may not allow their claim to go forward.
In Mexico, the public does not have the right to bear arms. Also, Mexico does not have a gun culture like that found in the United States. More importantly to Mexico’s lawsuit, the sale of guns in Mexico is highly restricted and limited. In fact, there is only one official shop in Mexico that sells firearms. It is located on a military base. Thus, the cartel’s guns aren’t sourced from Mexico.
An Increase in Military-Grade Firearms in Mexico
In 2005, Congress established the Protection of Lawful Commerce in Arms Act (PLCAA), exempting makers of guns and ammunition from liability for claims brought by victims of criminal acts perpetrated with firearms. Following its passage, along with the 2004 expiration of a ban on the manufacture of assault-style rifles, the industry increased the production of high-powered firearms.
The increase in production correlates directly with the rise in firearms deaths in Mexico. Government reports from both Mexico and the United States unequivocally state that these firearms are coming from north of the Rio Grande. According to the lawsuit, Mexico estimates that 500,000 arms are trafficked over the border each year.
The defendants responded quickly with a joint motion to dismiss. They argued that the PLCAA protects them from damages caused by criminal third parties. Further, the motion asserts that the Mexico failed to demonstrate that the manufacturers are the proximate cause of the gun crimes perpetrated by cartel members.
On their face, the arguments appear formidable. It is reasonable to assume dismissal is likely. However, Mexico’s response to the joint motion to dismiss opened a Pandora’s box of choice-of-law and statutory interpretation issues that have now taken center stage.
U.S. federal courts recognize two distinct types of immunity depending on whether the law providing immunity is procedural or substantive. If procedural, the law would furnish immunity from suit. If substantive, it would grant a defense to liability.
Immunity from suit constitutes a right that exempts a defendant from having to undergo a trial. If it is deemed to apply, the court must dismiss the case prior to a trial. In contrast, if the district court finds the PLCAA grants only a defense to liability, the manufacturers could be forced to defend Mexico’s claims at trial. Within the United States, there is support for this outcome. Thirteen U.S. states and the District of Columbia are supporting, as amicus parties, Mexico’s assertion that the PLCAA does not grant total immunity from suit.
If the court holds that the manufacturer’s immunity is substantive and finds that that Mexican substantive law, and not Massachusetts law should apply to the claims, Mexico may have the opportunity to prove its claims. The immunity provisions of the PLCAA would not prevent a trial or determine the outcome of the lawsuit.
If the case is dismissed, Mexico may have a chance to amend its complaint and use the U.N. Arms Trade Treaty as the basis for its lawsuit. However, this is a longshot, as the U.S. Senate has not ratified this treaty. If the case is allowed to move forward, it may establish a ground or precedent for allowing a wider scope of lawsuits from Mexico and other countries against U.S. businesses, including outside of the context of firearms manufacturing.