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Just two weeks after the Trump administration designated six Mexican cartels as foreign terrorist organizations, Mexico will come to the Supreme Court on Tuesday in its effort to hold U.S. gun makers liable for cartel violence committed with U.S.-made weapons.
Mexico is seeking billions of dollars from seven major U.S. gun makers and one gun wholesaler to recover costs related to gun violence and to stop the marketing and trafficking of illegal guns to Mexico. But the gun makers counter that the lawsuit “challenges how the American firearms industry has openly operated in broad daylight for years.”
Tuesday’s case is the first test before the high court of a federal law enacted in 2005 to protect the gun industry. The law includes a key carve-out that allows lawsuits when the harm at issue stems from a gun manufacturer’s knowing violation of U.S. laws.
Mexico has very strict gun laws that make it almost impossible for criminals to obtain a gun legally there. There is only one gun store in the whole country, and the government issues fewer than 50 gun permits per year. But Mexico ranks third in the world in the number of gun-related deaths. In 2021, 69% of homicides were committed with a gun. Mexico contends that as many as 70 to 90% of the guns that police recover at crime scenes in the country were trafficked into Mexico from the United States.
Mexico filed a lawsuit in 2021 in federal court in Massachusetts. It contended, among other things, that supplying guns to Mexico’s illegal gun market is a feature, rather than a bug, of the gun makers’ business models.
Gun makers, Mexico claimed, design and market their guns as military-style weapons, knowing that doing so makes them attractive to Mexican drug cartels. Moreover, it added, the gun makers use a three-tier distribution system that facilitates an illegal market for their guns in Mexico, with gun dealers often selling to buyers who were acting as strawmen for someone else who could not legally purchase a gun – leading to over $170 million worth of guns trafficked into Mexico each year.
The district court dismissed Mexico’s case. It ruled that Mexico’s claims were barred by a federal law, the Protection of Lawful Commerce in Arms Act, intended to shield the U.S. gun industry from lawsuits in U.S. courts for the misuse of guns by others. The law was enacted in response to a series of lawsuits in the 1990s by (among others) cities seeking to hold the gun industry for harms caused by gun violence.
The U.S. Court of Appeals for the 1st Circuit reversed, allowing the case to move forward. It held although the law’s limitations apply to lawsuits brought by foreign governments for harm suffered outside the United States, Mexico’s claims fell within an exemption for lawsuits in which a gun maker or seller knowingly violates federal or state laws “applicable to the sale or marketing of” firearms, the court of appeals reasoned, and that violation caused the injury for which the plaintiff is seeking relief.
In this case, the court of appeals explained, Mexico alleges that the defendants aided and abetted illegal downstream sales. And the Mexican government, the 1st Circuit continued, incurs direct costs as a result of that facilitation of gun trafficking to the cartels – for example, the cost of having more law enforcement personnel and their training.
The gun makers came to the Supreme Court in April, asking the justices to weigh in – which they agreed to do in October.
In the Supreme Court, the gun makers dismiss Mexico’s suit as targeting their “routine business practices.” They say that the Supreme Court made clear in 2023, in a case seeking to hold Twitter liable for allegedly aiding terrorists through its algorithms, that simply engaging in normal business practices is not enough to make someone an accomplice to a crime, even if they know that the products that they make “may be criminally misused downstream.”
As a general rule, the gun makers continue, a company cannot be held liable for the criminal misuse of a product that it makes or sells because what matters is the direct cause of the plaintiff’s injury – and it is the criminal misuse of the product, rather than its production or sale, that cause the injury.
Here, the gun makers argue, any connection between their own conduct and any injuries suffered by Mexico is too attenuated to hold them liable. Mexico’s theory, they stress, “rests upon a medley of independent criminal acts, spanning an international border”: Gun makers produce the firearms in the United States and sell them to distributors, which then sell them to dealers, “some of whom illegally (or negligently) sell firearms to criminals, some of which are smuggled into Mexico, where a fraction ends up with cartels, who use some to commit violent crimes, finally harming Mexico’s government through increased costs.”
And more broadly, the gun makers warn, allowing Mexico’s lawsuit to go forward could have “serious implications well beyond the firearms industry, affecting every business whose products might be criminally misused downstream.”
Mexico urged the justices to allow the case to proceed for now, noting that the case is still in its early stages. And it resists the gun makers’ suggestion that Mexico is trying to hold them liable for doing “business as usual.”
The Protecting Legal Commerce in Arms Act carves out an exception for lawsuits for injuries resulting from the criminal use of guns when a gun maker knowingly violated a law governing the sale or marketing of guns, and that violation causes the injury, Mexico reiterates. Here, Mexico writes, its claim is that that the gun manufacturers aided and abetted – that is, helped and encouraged – the violation of gun laws by intentionally supplying and facilitating the illegal sale of guns in large quantities to known gun traffickers for cartels in Mexico.
Mexico also alleges that the gun makers’ conduct caused its injuries. The gun makers violated laws prohibiting sales to straw purchasers and exporting guns to Mexico, which are intended to prevent criminals from getting access to guns. It was foreseeable that these violations of the law would injure Mexico, the government says.
Allowing this case to move forward would not open the floodgates for liability in other industries, the Mexican government insists. The gun makers are an unusual business, it observes, that intentionally sells to “a booming criminal market. Other industries can rest easy — unless they also knowingly aid unlawful activity on a grand scale,” the Mexican government assures the justices.
On the other hand, the Mexican government suggests, the gun makers’ position would threaten other litigation seeking to hold businesses liable for aiding and abetting criminal conduct – such as the case against Purdue Pharma for its rule in facilitating the illegal distribution of opioids.
This article was originally published at Howe on the Court.
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