ARGUMENT ANALYSIS

High court likely to block Mexico’s suit against gun makers

The Supreme Court on Tuesday signaled that it was likely to shut down a lawsuit brought by the Mexican government, seeking to hold seven major U.S. gun makers and a gun wholesaler responsible for violence committed by Mexican drug cartels with U.S.-made weapons. A majority of the court appeared to agree with the gun makers that the Mexican government’s suit is barred by a 2005 law intended to shield the gun industry from lawsuits in U.S. courts for the misuse of guns by others.

Mexico filed the lawsuit that is now before the Supreme Court four years ago in Massachusetts, seeking billions of dollars and an end to the marketing and trafficking of illegal guns to Mexico. It contends that gun makers deliberately design and market their guns as military-style weapons, knowing that doing so makes them appealing to Mexican drug cartels. The gun makers also use a three-tier distribution system that helps to create an illegal market for their guns in Mexico, the Mexican government alleged: The gun makers sell to gun dealers, who then sell to gun buyers who are acting as “strawmen” for someone who could not legally buy a gun in Mexico.

The U.S. Court of Appeals for the 1st Circuit ruled that Mexico’s lawsuit could go forward because Mexico contends that the gun makers aided and abetted illegal downstream sales, in violation of U.S. laws. Mexico also has to pay additional costs – such as for more law enforcement personnel and their training – as a result of the gun makers’ actions, the court of appeals reasoned.

Representing the gun makers at Tuesday’s oral argument, Noel Francisco told the justices that when Congress enacted the law at the center of the case, the Protecting Lawful Commerce in Arms Act, it intended to “prohibit lawsuits just like this one.” And Congress wanted to protect the Second Amendment rights of Americans, he added, by preventing plaintiffs from bankrupting the gun industry through frivolous lawsuits.

Catherine Stetson, representing the Mexican government, countered that the PLCAA was intended to guard against gun manufacturers being held liable for actions that are solely caused by criminals. Congress could have barred all lawsuits against the gun industry, she stressed, but instead it opted to include a carve-out for claims – like Mexico’s – alleging that the gun makers themselves violated state or federal laws.

The justices grappled with two separate questions: whether the gun makers had aided and abetted violations of U.S. gun laws and, if so, whether the gun makers’ conduct caused Mexico’s injuries.

Justice Neil Gorsuch seemed skeptical that the gun makers had aided and abetted violations of gun laws. He observed that to be liable for aiding and abetting, it isn’t enough for the gun makers to know that they were facilitating violations of the laws; they had to intend to do so.

Other justices questioned whether Mexico had provided enough details in its complaint for its case to move forward. Stetson told the justices that the gun makers’ “regularly receive” information from the Bureau of Alcohol, Tobacco, Firearms, and Explosives about “problem” dealers, who sell guns that are recovered at crime scenes in Mexico. These are “exactly the kind of specific allegations” that Mexico needs at this stage of the case, Stetson maintained.

But Justice Ketanji Brown Jackson pressed her, noting that the parts of Mexico’s complaint to which Stetson referred do not actually allege a violation of any U.S. laws. Instead, she said, “those statements just go to whether or not the defendant had knowledge that at the end of the day, some dealers might be doing something wrong.”

Justice Elena Kagan expressed a related concern, reiterating that Mexico had not alleged that the gun makers were aware of problems with specific dealers. “Who,” Kagan asked, “are they aiding and abetting in this complaint?”

Francisco insisted that the gun makers’ conduct could not have been the legal cause of Mexico’s injuries. “We have a multitude of intervening independent crimes” between a gun maker’s initial sale of a gun to a licensed distributor and its eventual use by drug cartels in Mexico, he told the justices. There is “not a single case in history that comes close to that” kind of extended chain of causation, he argued.

Justice Sonia Sotomayor suggested that she and her colleagues might try to sidestep a ruling on the causation question, noting that the Supreme Court’s cases on this issue “are a mess.” For the justices to address it, she indicated, it would open “up a Pandora’s box.”

Justice Amy Coney Barrett appeared to agree. If the court were to rule for the gun makers on the question of aiding and abetting violations of U.S. gun laws, she asked Francisco, would it even need to address the causation question?

Some justices had broader worries. Justice Brett Kavanaugh asked Stetson about what he described as a “real concern” for him: the prospect that allowing Mexico’s lawsuit to go forward would have “destructive effects” on the U.S. economy for other industries that know their products are being misused, like pharmaceuticals or car manufacturers.

As major tariffs on Mexico went into effect this morning, little of the argument touched on diplomatic tensions with the country in recent weeks. But Justice Samuel Alito posed a question from what he characterized as the perspective of “ordinary Americans,” seemingly alluding to the Trump administration’s efforts to pressure Mexico on the flow of drugs and migrants across the border. In this case, he told Stetson, Mexico alleges that U.S. gun manufacturers are contributing to illegal conduct in Mexico. But, Alito countered, there “are Americans who think that Mexican government officials are contributing to a lot of illegal conduct” in the United States. Should a U.S. state be able, he asked, to sue Mexico in a U.S. court for “aiding and abetting illegal conduct within the state’s borders” that causes harm to the state?

Jackson also expressed skepticism about allowing the lawsuit to go forward, suggesting that with the PLCAA Congress wanted to shield “its own prerogative to be the one to regulate” the gun industry, rather than giving that power to the courts. And she suggested that a case like this one, “where we don’t really see exactly how the manufacturers are violating a particular federal or state law,” might be “running up against” the concerns that motivated Congress to pass the PLCAA in the first place.

Stetson pushed back, emphasizing that lawsuits like Mexico fell squarely within the PLCAA’s carve-out for violations of U.S. law. Mexico, she insisted, “is not trying to legislate gun use in the United States.”

But with even the court’s more liberal justices appearing dubious, Mexico’s lawsuit seems unlikely to move forward.   

This article was originally published at Howe on the Court.