Justices reject Mexico’s suit against gun manufacturers 

The Supreme Court ruled on Thursday that a lawsuit by the Mexican government against U.S. gun makers cannot go forward. In a unanimous decision by Justice Elena Kagan, the justices held that Mexico’s efforts to hold the gun makers responsible for violence committed by Mexican drug cartels with U.S.-made weapons is barred by a federal law that Congress passed in 2005 to shield the gun industry from lawsuits in U.S. courts for the misuse of guns by others. 

“Mexico’s suit,” Kagan wrote, “closely resemble the ones Congress had in mind” when it passed the law: “It seeks to recover from American firearms manufacturers for the downstream damage Mexican cartel members wreak with their guns.” 

Mexico itself has very stringent gun laws, making it virtually impossible for cartels to obtain guns legally there. The country has just one gun store and “issues fewer than 50 gun permits each year.” Despite its efforts to strictly regulate guns, however, Mexico ranks third in the world in the number of gun-related deaths. And in particular, the Mexican government says, as many as 70% to 90% of the guns that police recover at crime scenes in that country were trafficked into Mexico from the United States. 

In 2021 the Mexican government filed a lawsuit in a Massachusetts federal court against seven major U.S. gun makers and one gun wholesaler. It contended that gun makers design and market their guns as military-style weapons, knowing that doing so makes them more attractive to drug cartels in Mexico. The gun makers also use a three-tier distribution system, Mexico alleged, that facilitates an illegal market for their guns in Mexico, with gun makers selling to wholesale distributors, who then sell to retail dealers, and gun dealers then sell the guns to “straw purchasers” – buyers who were acting as a front for someone else who could not legally purchase a gun. 

The Mexican government sought billions of dollars from the gun makers and the wholesaler to compensate it for costs related to gun violence, as well as to stop the marketing and trafficking of illegal guns to Mexico. 

Chief U.S. District Judge F. Dennis Saylor threw out Mexico’s case. He ruled that a federal law, the Protection of Lawful Commerce in Arms Act, prohibited the country’s claims. Enacted in 2005, the law was a response to a series of lawsuits in the 1990s by (among others) cities seeking to hold the gun industry liable for harms caused by gun violence. 

Mexico appealed to the U.S. Court of Appeals for the 1st Circuit, which reversed and allowed the case to go ahead. It reasoned that Mexico had alleged that the defendants had aided and abetted illegal downstream gun sales, which in turn costs the Mexican government money – for example, by requiring it to spend more on law enforcement personnel and their training. 

Therefore, the court of appeals concluded, Mexico’s claims fell within an exemption to the gun law for lawsuits in which a gun maker or seller knowingly violates federal or state laws that apply to the sale or marketing of guns, and the violation then caused the injury for which the plaintiff is seeking relief. 

The gun makers and wholesaler came to the Supreme Court, which on Thursday reversed the 1st Circuit’s decision. 

Kagan explained that to hold someone liable for aiding and abetting a crime, that person must both “take an affirmative act” to advance the offense and intend to facilitate the commission of the crime. But here, she concluded, Mexico’s allegation that the gun makers aided and abetted the illegal sales of guns to Mexican traffickers cannot meet that standard. “We have little doubt that, as the complaint asserts, some such sales take place—and that the manufacturers know they do.” The Mexican government, however, has not sufficiently alleged that the gun makers not only “participate in” the illegal gun sales but also want them to happen. 

Kagan observed that unlike most aiding-and-abetting claims, the government does not point to specific criminal offenses in which the gun makers supposedly assisted. Instead, she noted, Mexico contended more broadly that “all the manufacturers assist some number of unidentified rogue gun dealers in making a host of firearm sales in violation of various legal bars” – a strategy that requires the country to provide “plausible allegations of ‘pervasive, systemic, and culpable assistance.’” 

But Mexico does not provide such allegations, Kagan continued. Rather, it merely “repeatedly states that the manufacturers treat rogue dealers just the same as they do law-abiding ones—selling to everyone, and on equivalent terms.” Moreover, she added, the complaint does not adequately support the claim that gun makers only sell firearms to distributors, rather than to “bad-apple dealers.” To the extent that Mexico does make plausible allegations, Kagan wrote, it only alleges “indifference” by the gun makers, rather than “assistance,” which is not enough to support an aiding-and-abetting claim. 

As a result, Kagan concluded, Mexico’s lawsuit “remains subject to PLCAA’s general bar: An action cannot be brought against a manufacturer if, like Mexico’s, it is founded on a third-party’s criminal use of the company’s product.” Such a conclusion, she added, “well accords with PLCAA’s core purpose” – to put an end to a “flurry of lawsuits attempting to make gun manufacturers pay for the downstream harms resulting from misuse of their products.” 

Justice Clarence Thomas wrote a brief concurring opinion in which he suggested that, at some point in the future, courts should consider what is required for a “violation” for purposes of the PLCAA’s exemption. “It seems to me,” Thomas posited, “that the PLCAA at least arguably requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the ‘violation.’” 

Justice Ketanji Brown Jackson also filed a concurring opinion in which she suggested that the “core flaw” in Mexico’s complaint was that the Mexican government had failed to allege that the gun makers had violated any specific laws. Instead, she wrote, the Mexican government had merely contended that “firearms-industry-wide practices—though lawful on their own—facilitated dealers’ unspecified downstream violations. Mexico does not tether its claims to” alleged violations of laws. “Nor,” she continued, “does it identify the dealers who would be the principals for any underlying statutory violations.” “At bottom, then,” she concluded, “Mexico merely faults the industry writ large for engaging in practices that legislatures and voters have declined to prohibit.”