US Arms and Mexico

Mexico filed the civil complaint in the US District Court of Massachusetts to hold the US gun industry accountable for its contribution to gun trafficking and to force it into exercising more due diligence over the production and distribution of its products. Mexico claims damages in the form of healthcare, security, and other costs, in addition to economic loss arising from the companies’ negligent failure “to exercise reasonable care” in manufacturing, marketing, and selling their guns in ways that reduce the likelihood of their being trafficked into and causing harm in Mexico. These alleged negligent practices, according to Mexico, are a significant “proximate cause” of the gun violence that has resulted in the loss of 68,387 lives in its territory since 2019 alone. In its complaint, Mexico claims that the respondents’ products “collectively account for nearly half of all crime guns recovered in Mexico” and for about 68.4 per cent of all crime guns identified as originating in the US. Mexico’s complaint in Arizona alleges complicity in gun trafficking by gun dealers. It has also requested an advisory opinion from the Inter-American Court of Human Rights asking the Court to outline the obligations of states and corporations with respect to the production, distribution, and sale of guns and their impact on human rights, including access to justice. More broadly, Mexico’s litigation is part of wider efforts to hold irresponsible members of the US gun industry accountable for transborder damage caused by their products on its territory. 

These lawsuits are unique because they creatively combine state, federal, foreign, and international laws to address issues of gun violence stemming from irresponsible sales. Mexico likely chose to take these cases directly to US courts for several reasons, including that Mexican courts may not have jurisdiction over the defendants and, even if they do, the US government may not recognise a Mexican court judgment. Such transnational litigation is being increasingly used to enforce international human rights law and ensure corporate accountability.  

Claims made under Mexican law should not be barred by the PLCAA. Meanwhile, some claims made under US law may fit within a PLCAA exception, such as on defective design, negligence per se, and unfair business practices.

To this effect, the US Court of Appeals’ decision to reverse the Massachusetts District Court’s motion to dismiss was highly notable for two reasons. Firstly, this is the first case in which the court held that a sovereign state can bring a case against the US gun industry. Secondly, it is the first time since 2005 that a First Federal Appeals Court has allowed gun manufacturers to be held accountable for facilitating gun violence. The Court stated that the PLCAA does not provide complete immunity where the gun companies themselves have allegedly aided and abetted violations of the law. Moreover, the Appeals Court found that Mexico’s complaint plausible alleges that the defendants “knew or should have known” that their firearms would be caused by violent cartels.

While the appeal judgement is applicable only to the Massachusetts case, the Arizona case judgement relied in part on this appeal decision, given that similar arguments were made for both cases. The judgements in both the Massachusetts and Arizona cases may also be very impactful more broadly, as it creates a legal precedent that the gun industry can be held accountable for violations of the law.

Contribution by León Castellanos-Jankiewicz (Asser) and Jonathan Lowy (Global Action on Gun Violence) 

(8 December 2023)

The defendants in the Massachusetts case are: Smith & Wesson Brands, Inc.; Barrett Firearms Manufacturing, Inc.; Beretta USA Corp.; Century International Arms, Inc.; Colt’s Manufacturing Company LLC; Glock, Inc.; Sturm, Ruger & Co., Inc.; and Witmer Public Safety Group, Inc.

The claimant argues that the defendants’ business practices have resulted in the trafficking of lethal firearms from the US across the border to criminal organisations. As a result, the consequences for Mexico have been an “exponential” growth in the homicide rate and an overall destabilising effect on the Mexican society. While the actionable harm occurred in Mexico, it was caused by conduct within US territory.

The submission claims relief on the following counts:

• Negligence and negligence per se – the defendants neglected to exercise ordinary and reasonable care in designing, manufacturing, advertising, promoting, distributing, supplying, and selling as well as failing to monitor and discipline the distribution systems to reduce the risk of and prevent their guns being trafficked into Mexico.
• Public nuisance – the defendants’ conduct resulted in the arming of criminals, which constitutes a dangerous threat to the public, and therefore “public nuisance under applicable law”.
• Defective condition – the guns manufactured and supplied by the defendants were defective in design or formulation, rendering them “unreasonably” and more dangerous than what should be expected, and posing risks that exceeded the anticipated benefits of the product.
• Gross negligence – the defendants actively facilitated the trafficking of guns into Mexico, and engaged in other reckless and unlawful conduct, which led to the epidemic of gun violence in Mexico and strengthened drug cartels.

• Unjust enrichment and restitution – the defendants have reaped enormous profits and gains from the sale of their guns, which have been foreseeably trafficked into Mexico.
• Violation of Connecticut Unfair Trade Practices Act and Massachusetts Consumer Protection Act – two defendants violated these acts by marketing products like semi-automatic assault rifles to the civilian market such that they highlighted their use for civilians to carry out “military-style combat missions” as well as encouraging their misuse.
• Punitive damages – the defendants’ acts and omissions were wilful and malicious, and evidence of a conscious disregard for the rights and safety of other persons.

In November 2021, the defendants moved to dismiss the Massachusetts complaint, citing the following defences: Mexico lacks standing; the defendants’ connection to the alleged damage is too attenuated; the firearms industry owes no common-law duty to protect Mexico from crimes committed in that country with their products; Mexico’s public nuisance claim does not apply to the sale and manufacture of lawful products; and Mexico cannot invoke its own tort law in substitution of US statutes to hold the companies liable.  

The US gun manufacturers also claimed immunity under the Protection of Lawful Commerce in Arms Act (PLCAA), which shields firearms manufacturers and dealers from any “qualified civil liability action” that seeks damages or relief “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” The court granted the motion to dismiss in September 2022, largely on the basis of PLCAA, as it deemed this Act a “jurisdiction-stripping statute” which covered all civil actions or proceedings brought by any person against a manufacturer or seller of a firearm. Therefore, it did not matter that the relevant facts to the case took place extraterritorially in Mexico’s jurisdiction. In January 2023, the defendants of the Arizona case similarly filed for a motion to dismiss under the PLCAA.  

In March 2023, Mexico filed an appeal with the US Court of Appeals for the First Circuit arguing that the court should not have applied PLCAA extraterritorially to facts and injuries occurring abroad. It argued that there is no indication that PLCAA prohibits claims based on foreign law for damages occurring abroad. In January 2024, the Court of Appeals issued a favourable ruling for the Government of Mexico, resolving that it had the right to pursue its lawsuit against the gun industry, to hold them liable for facilitating gun violence, reversing the previous court ruling that deemed the PLCAA prohibited the suit from going forward. 

The Court of Appeals noted that the PLCAA, broadly, does not shield actions in which the manufacturer or seller violates a statute, resulting in a direct injury, thereby allowing a claim to be made. The Court also found that Mexico’s complaint adequately alleges that the defendants have been aiding and abetting the sale of firearms by dealers in knowing violation of the relevant state and federal laws. The Court also stated that Mexico has adequately alleged that the injury suffered can be legally attributed to the actions or omissions of the defendants. For these reasons, it decided to reverse the district court’s September 2022 motion to dismiss. The case has been reverted back to the District Court for trial. The gun manufacturers have stated they intend to request review by the US. Following the Court decision in the Massachusetts case, in March 2024, the judge in the Arizona case also held that the case could proceed and was not barred by PLCAA (full opinion).

Read here for more detail on the motion to dismiss and here for more detail on Mexico’s appeal.  

This claim has been brought by the Government of Mexico. Jonathan Lowy and his organisation, Global Action on Gun Violence are co-counsel for the Government of Mexico.

If you would like to know more about this case, please get in touch with our primary contact Jonathan Lowy by email.