The judge hearing Mexico’s lawsuit against more than half a dozen U.S. gunmakers and a firearms distributor alleging they knowingly facilitate the trafficking of weapons into the violence-plagued country peppered the plaintiff’s counsel with questions Tuesday about the wider implications of the legal theory on which Mexico is basing its case.
At a hearing for a motion to dismiss the case, U.S. District Judge Dennis Saylor of the District of Massachusetts interrupted Mexico’s chief counsel, Steve Shadowen, as he was delivering his opening arguments to ask whether a favorable ruling for Mexico would clear the way for other countries to sue U.S. gunmakers.
“Let me ask you a question,” Saylor said. “If the issue is military-style weapons, first off, would your approach apply equally to other criminal organizations—let’s say MS-13 or the Mafia? In other words, the government of El Salvador could sue to recover MS-13 costs or the government of Italy could sue to recover Mafia-related costs, if your theory is correct?”
“I believe there would be no bar to those claims if they can meet the requirements that we have here, including proximate cause, and if their law gives them a claim,” Shadowen said.
The gunmakers have assembled an all-star cast to counter Mexico’s claim that the companies knowingly and actively facilitate the sale of large numbers of military-style assault weapons bound for Mexico—a country that highly restricts gun sales and yet has multiple communities that resemble bullet-riddled war zones.
Andrew Lelling, a former U.S. attorney for the District of Massachusetts and recently recruited partner at Jones Day in Boston, opened the arguments to dismiss.
“Essentially what’s happening, your honor, is the complainant is using the court as a tool to circumvent diplomatic or even legislative channels in a dispute between bordering countries: the United States and Mexico,” he said.
Lawyers for the gun manufacturers and the distributor say Mexico lacks Article III standing to bring the case—that the purported injury is not traceable to the defendants, but rather stems from a third party not before the court: criminals in Mexico.
Logical Stopping Point?
Saylor appeared concerned that a ruling in favor of Mexico could clear the way for an avalanche of international claims against U.S. gunmakers.
“What about terrorist organizations,” Saylor asked Shadowen. “Could the government of Israel or Ireland sue concerning Hamas or the IRA if American firearms were used?”
The U.S.-based defendants have argued that they are shielded by the Protection of Lawful Commerce in Arms Act, a federal law that grants broad immunity to licensed firearms manufacturers and sellers against lawsuits claiming harms resulting from the unlawful use of a firearm by a third party.
But Shadowen says the Commerce in Arms Act doesn’t shield the gunmakers from an injury that occurs in Mexico and when the plaintiff is a sovereign nation—in this case, the government of Mexico.
“I want to know the implications of your argument and whether there is any logical stopping point,” Saylor said, continuing with a reference to a recent mass shooting in Tel Aviv and asking whether Mexico’s liability claim only encompasses acts committed by criminal groups, or also includes gun violence perpetrated by individuals abroad.
Shadowen said Mexico’s arguments are “limited to instances in which there’s a systematic, repeated trafficking of guns into the foreign jurisdiction.”
“If you’re right,” Saylor countered, “for a single bank robbery or car-jacking in Rio de Janeiro—the government of Brazil can sue. Your distinction doesn’t seem grounded in the Constitution.”
“Let me give the most extreme example of all,” continued Saylor. “If the concern is military-type weapons, if Ukrainians are using United States-manufactured military weapons or Smith & Wesson revolvers, could the government of Russia come in and say you have caused us harm, U.S. arms manufacturers, by manufacturing these goods that killed Russian soldiers and therefore we’re suing for damages? I mean, why not?”
Shadowen responded that “other judicial doctrines would clearly come into play at that point,” such as the act-of-state doctrine—a principle in English and U.S. law that asserts that every sovereign state is bound to respect the independence of every other sovereign state.
Mexico argues that lax firearms regulations in the U.S. impinge on its right as a sovereign nation to regulate the flow of firearms into the country.
Defendants in the suit include Smith & Wesson Brands Inc., Sturm, Ruger & Company Inc., Glock Inc., Barrett Firearms Manufacturing Inc., Colt’s Manufacturing Co. Inc., Beretta U.S.A. Corp., Century International Arms and distributor Witmer Public Safety Group Inc.
Lelling, who oversaw prosecutions in the infamous “Varsity Blues” college admissions scandal before joining Jones Day in 2021, and Jones Day partner Noel Francisco, former solicitor general of the United States during the Trump administration, represent Smith & Wesson Brands.
Other big-name firms for the defendants include Cozen O’Connor, which represents Beretta USA Corp., and Day Pitney for Sturm, Ruger & Co. Inc.
Mexico highly restricts gun sales. It has a single gun store in the entire nation and issues fewer than 50 gun permits per year. Yet the country is awash in guns, including assault weapons. The Mexican government has found that the vast majority of guns recovered at crime scenes have been trafficked into the country from the U.S.
The Mexican case centers on the argument that conduct in the U.S. is causing injury in Mexico—homicides in Mexico have skyrocketed since the U.S. ban on assault rifles expired in 2004—and that the immunity afforded to gunmakers via the Protection of Lawful Commerce in Arms Act does not apply to injuries caused abroad.
More than two dozen district attorneys from across the U.S., 14 U.S. state attorneys, and two countries in the Caribbean have filed amici briefs asking the court to allow the Mexican government to proceed with its lawsuit
Mexico is seeking financial compensation for its losses. One study pegs the government’s cost of trying to prevent escalating gun violence to be more than 1.5% of the country’s $1 billion annual gross domestic product.