It’s hard to imagine a lawsuit that faces more challenging political headwinds than Mexico’s case against US gun companies in Smith & Wesson Brands v. Estados Unidos Mexicanos.
Briefly, the nation of Mexico sued seven US gun manufacturers plus a company that distributes firearms, claiming that these companies knowingly (and illegally) supplied guns to drug cartels in that country which set off an epidemic of violence. According to a federal appeals court that previously heard this case, “defendants produce more than sixty-eight percent of the U.S. guns trafficked into Mexico, which comes out to between 342,000 and 597,000 guns each year.”
Mexico makes a plausible case that these companies have profited handsomely off of these weapons, which allegedly cause thousands of deaths in Mexico every year. Yet there are three reasons to doubt that Mexico has any shot of prevailing in the US Supreme Court.
The first is a 2005 federal law, known as the Protection of Lawful Commerce in Arms Act (“PLCAA”), which gives gun makers and sellers an unusual amount of immunity from lawsuits of all kinds. This law seeks to prevent suits against gun manufacturers “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” Guns, of course, are designed and intended to be used as deadly weapons.
That said, PLCAA does contain some exceptions to this general rule, including an exception for gun manufacturers who aid and abet a violation of state or federal law. But that brings us to the second reason why Mexico faces an uphill climb: The Court’s most recent precedent governing when someone can be held liable for aiding and abetting is fairly vague, and it contains language that is favorable to both parties’ positions in this case. That means that the justices could potentially read this case to benefit whichever party they want to win.
And that brings us to the third reason why Mexico is unlikely to prevail: The politics of this case are simply awful. The Supreme Court has 6-3 Republican supermajority, and those Republicans have tripped over themselves to rule in favor of pro-gun causes — even writing an entirely new interpretation of the Second Amendment in order to make the law much more favorable to guns.
While there are reasonable legal arguments supporting both sides of this case, Smith & Wesson asks a Republican Supreme Court to choose between ruling in favor of gun makers and ruling in favor of Mexicans. If you’re a gambler, it’s easy to decide which side of that bet you should take.
Of course, it’s still possible that a majority of the justices will side with Mexico here. Realistically, however, Mexico faces a tough fight in a Supreme Court that’s shown a great deal of solicitude for the gun industry — even in cases that don’t involve a federal statute that protects gun companies from liability.
What is the legal issue in Smith & Wesson?
Mexico sued a broad range of American gun companies, including Smith & Wesson, Glock, Colt, and Beretta. While their factual allegations are somewhat complicated, Mexico essentially argues that these companies knew that their guns were being distributed to dealers who were selling them to cartels, often indirectly through “straw” purchasers who would buy the guns and then sell or transfer them to cartel members.
According to Mexico’s brief, the defendants “routinely receive alerts from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) showing that ‘guns they sell to specific distributors and dealers are being recovered at crime scenes in Mexico.’” Mexico alleges that the gun companies continue to do business with these distributors or dealers despite those warnings.
Ordinarily, PLCAA prohibits lawsuits arising out of “the criminal or unlawful misuse” of a gun by a “third party” — meaning that a gun manufacturer cannot be sued if someone uses their product to commit a crime. But the law contains an exception for suits where a gun maker “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”
So which statute have the gun makers allegedly violated? As the appeals court that heard this case explained, “Mexico reasons that by deliberately facilitating the unlawful trafficking of their guns into Mexico, defendants aid and abet violations of various federal statutes that prohibit selling guns without a license, exporting guns without a license, and selling to straw purchasers.”
So this case is complicated, and it involves a fair amount of labyrinthian statutory language. The most important thing to understand is that this case is likely to turn on what it means to “aid and abet” a violation of a federal licensing or anti-straw purchaser law. Mexico and the defendants both interpret this phrase quite differently.
The answer to that question is likely to hinge on Twitter v. Taamneh (2023), a recent, unanimous decision discussing what it means for one person to aid and abet an illegal action by another person.
So what does “aid and abet” mean?
Twitter involved a federal law that permits any American who is injured by an act of international terrorism to sue anyone who “aids and abets, by knowingly providing substantial assistance” to anyone who commits “such an act of international terrorism.”
The plaintiffs were American relatives of people killed in ISIS terror attacks, who claimed that major social media sites like Twitter, Facebook, and YouTube aided and abetted those attacks because they sometimes hosted recruitment videos posted by ISIS.
Much of the Twitter opinion is favorable to the gun manufacturers’ position. In ruling for the social media companies, all nine justices were worried about creating a world where any company could be sued for any remote consequence caused by their product. As Justice Clarence Thomas wrote for the Court, “if aiding-and-abetting liability were taken too far, then ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer.”
At the same time, the gun makers at the heart of the Smith & Wesson case have a much closer relationship with gun dealers than Twitter or Facebook had with a terrorist group. And the legal rule announced in the Twitter decision is quite vague.
Specifically, the Court announced that, in order to aid and abet an illegal act, a defendant must “have given knowing and substantial assistance to the” person who actually performed that act. Thomas added that a weaker demonstration that the defendant knew what was going on might be overcome by a greater showing of assistance, or vice versa.
Smith & Wesson arrives at the Court at an early stage of the litigation; no trial court has examined Mexico’s factual allegations. Because of that, the justices are required to treat all of Mexico’s allegations as true. So, it would likely be improper for the Court to dismiss this case right now. Notably, the appeals court which heard this case determined that Mexico’s suit could move forward under Twitter.
But Twitter also provides a justice who wants to rule in favor of the gun companies with plenty of reasons they can use to justify their preferred result.
The gun companies also make another, more dangerous argument
In addition to fighting over the proper way to read decisions like Twitter, Mexico and the gun companies also disagree over the proper meaning of a legal term known as “proximate cause.” Recall that the PLCAA allows suits against gun companies to move forward if those companies knowingly violated a law, and this violation “was a proximate cause of the harm for which relief is sought.”
Proximate cause is a foundational legal concept that law students typically spend a fair amount of time studying during their first-year Torts class. It refers to an act that doesn’t just cause someone to be harmed, but that the law deems legally sufficient to justify holding the actor liable for that harm. Basically, it helps courts decide who is responsible (and who is not) for some injury.
Think of it this way: Suppose that Jack hits someone with his car while driving home, breaking one of their ribs in the process. Any number of acts could be said to have “caused” this accident, including the car manufacturer’s decision to make that car and the car dealer’s decision to sell it to Jack. But we don’t normally think of these sorts of remote causes as a good basis for a lawsuit. Absent any evidence that the dealer or the manufacturer behaved wrongfully or negligently, the law will hold Jack solely responsible for his negligent driving.
While the concept of proximate cause can be slippery, the general rule, as laid out in a treatise cited in Mexico’s brief, is that a defendant can be held responsible for injuries that are the reasonably “foreseeable” result of their illegal actions. Indeed, the Twitter opinion seems to embrace this view, stating that “people who aid and abet a tort can be held liable for other torts that were ‘a foreseeable risk’ of the intended tort.”
Thus, for example, while a car dealer ordinarily would not be liable for selling a car to someone who gets into an accident with that car, the rule might be different if Jack had shown up to the dealership and loudly bragged about how much he’s looking forward to using his new car to injure people. In this case, the dealer reasonably should have foreseen that selling a car to Jack would lead to another person being injured.
The gun companies, however, propose a radical reimagining of the concept of “proximate cause” in their brief. They claim that, when a chain of events leads to a bad outcome, the legal cause of that outcome is generally “limited to the ‘first step’ in a causal chain.” This is especially true, they argue, when that chain of events involves “separate actions carried out by separate parties” — that is, when multiple independent actions by multiple people led to the bad outcome.
Thus, under the gun companies’ proposed rule, if a gun manufacturer sells a gun to a distributor, who sells it to a dealer, who sells it to a straw purchaser, who sells it to a cartel member, who uses it to kill a Mexican police officer, it is likely that only the cartel member could be held liable for this death.
The problem with the gun companies’ proposed rule, however, is that limiting liability to just one actor in a causal chain would lead to absurd results.
Suppose that Jack, after visiting a neighbor, intentionally leaves that neighbor’s front door wide open, and even puts up a sign reading, “Hey thieves! There’s lots of stuff behind this totally unlocked door that you can steal.” Under the gun companies’ theory, if a burglar takes Jack up on this invitation, only the burglar could be held liable for the theft, and not Jack, even though the burglary could have never taken place without Jack’s malicious action.
In any event, the concept of proximate cause can sometimes be difficult to apply to individual cases. And courts sometimes struggle to determine whether a particular defendant reasonably should have foreseen an illegal act by another individual. But the gun companies’ proposed rule is too simplistic, and it would allow many companies to escape liability even when they knew full well that someone would use their products to do something awful.
It is likely, given the Supreme Court’s Republican supermajority, that these justices will find some way to rule in favor of the gun companies in Smith & Wesson. Should that happen, however, we should hope they do so in a way that doesn’t lead to preposterous results in a whole mess of future cases.
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