Mexico’s suit against American gun manufacturers revived in appeals court

A sign at the Presidio Port of Entry warns southbound travelers about penalties for trafficking guns. An appeals court revived a lawsuit brought by the government of Mexico against a handful of American gun manufacturers at the end of last month. Photo by Sam Karas.

BOSTON — The Mexican government’s lawsuit against a handful of American gun manufacturers was revived late last month in the First Circuit Court of Appeals after being dismissed by a lower court judge in 2022. The suit — which alleges that bad business practices by these companies have exacerbated cartel violence — is the first of its kind filed by a foreign country.

“For decades the Government and its citizens have been victimized by a deadly flood of military-style and other particularly lethal guns that flows from the US across the border,” reads the suit’s original complaint. “This flood is not a natural phenomenon or an inevitable consequence of the gun business or of US gun laws.”

Mexico suffers the third-highest rate of gun-related deaths in the world, despite having extremely strict laws prohibiting firearms: the country is home to a single gun store that grants fewer than 50 permits a year, primarily to government officials, journalists and other individuals particularly at risk for being targeted by the cartels. 

The suit claims that 70-90% of illegal firearms recovered at Mexican crime scenes were made in the U.S., the majority made by defendants Smith & Wesson, Beretta, Century Arms, Colt, Glock and Ruger. An estimated 500,000 guns are trafficked from the United States into Mexico every year. “A gun manufactured in the US is more likely to be used to murder a Mexican citizen than an American citizen,” the complaint says, citing statistics from 2019. 

In September of 2022, a district court judge in Massachusetts struck down the lawsuit on the grounds that it violated the Protection of Lawful Commerce in Arms Act (PLCAA), a law that protects gun manufacturers from liability for harm caused by their products. 

Prior to the bill’s passage, gun manufacturers were sued fairly regularly by cities like New York, Boston and San Francisco, which had limited or outlawed gun sales  but still struggled to combat significant rates of gun-related homicides with firearms trafficked in from out of town. 

The First Circuit Court of Appeals in Boston picked the case back up in part by the argument that the gun industry’s conduct allegedly violates the “predicate exception” of the PLCAA, which exempts manufacturers from protection if they cause harm by knowingly engaging in illegal conduct.

The suit alleges that the industry adheres to “willfully blind, standardless distribution practices” that put military-grade weapons into the hands of cartels — with serious profit to gain. 

“We’ve created a monster”

Guns are bought and sold in a three-tiered process: they’re built by manufacturers and sold to distributors who in turn sell them to individual dealers. In the U.S., dealers tend to cluster in border states  and on average make double the annual sales of dealers elsewhere. With just over 6,000 federally registered dealers in Texas, the state is home to nearly six times the number of gun stores than McDonald’s franchises

The suit alleges that manufacturers are using a “head-in-the-sand approach” and aren’t doing everything they can — or are legally bound to do — to prevent their guns from ending up in the hands of problematic downstream buyers.

Instead, the plaintiffs argue that the industry is propped up by “straw sales, multiple sales and repeat sales” — in other words, bulk sales to people who are clearly buying weapons on behalf of people who legally can’t purchase them. 

The suit acknowledges that tracing guns from the factory floor to the scene of a crime can be difficult, but that gun manufacturers could easily implement practices to trace “crime guns” back to the point of sale. One suggestion of many: to circumvent destroyed serial numbers, manufacturers could inscribe an additional hidden serial number inside the gun for use by law enforcement. 

Another issue cited in the complaint is the marketing of military-grade weapons to a civilian market over the past 20 years, after a ban on “semi-automatic assault weapons” was lifted in 2004. 

The suit singles out a .50 caliber sniper rifle manufactured by defendant Barrett Firearms Manufacturing, Inc. that has become a “weapon of choice” for Mexican cartels — the 82A1 can shoot down helicopters and penetrate lightly armored vehicles. Barrett’s advertising is not subtle: “We’ve created a monster,” boasts a magazine ad cited by the plaintiffs. 

Jonathan Lowy of Global Action on Gun Violence — a nonprofit that aims to inspire change in the gun industry through litigation — is part of a team representing Mexico in court. 

He stressed that the call for enhanced regulation wasn’t intended to punish law-abiding dealers. “The overwhelming majority of gun dealers do not sell a single crime gun,” he said. “A small percentage of dealers sell virtually all the crime guns — the good gun dealers don’t like that any more than the government of Mexico.”

Counsel for the defense anticipated the plaintiff’s arguments, describing the suit as a “new coat of paint” on previous unsuccessful industry lawsuits. “At bottom, this case implicates a clash of national values,” they wrote in a motion to dismiss in district court. “By seeking to bankrupt US gun makers, this gambit not only threatens America’s constitutional freedoms, but also the careful balance of firearms regulations set by Congress and state legislatures.”

Ultimately, they argued that Mexico’s gun violence problem was rooted in the fact that the government was “unable to control cartel violence within its borders,” and not through predatory conduct by manufacturers. 

“Less fear, more freedom”

Brewster County Sheriff Ronny Dodson felt he understood both sides of the issue — the top cop in Texas’s largest county also owns a small gun shop in Alpine, one of just three brick-and-mortar dealers in the region. 

Though Dodson sells much of his stock to locals, he still has to follow protocol by the federal Bureau of Alcohol, Tobacco and Firearms (ATF). The first step is having a potential buyer fill out a form that logs information about the product they’d like to purchase and a series of yes or no questions about the applicant’s criminal record, drug use and medical history. 

The self-reported data is then bolstered by a formal background check. If the applicant clears the background check, they can walk out of the store with the firearm. Once the gun is off the books, Dodson’s responsibility technically ends there, regardless of what happens to the gun down the line. “I don’t think they should be able to come back and sue me when I did exactly what my license and license instructors told me to do,” he said. 

Dodson said that some of his customers do buy multiple guns from him, but that they’re typically “cowboy guns” — single-action rifles and revolvers snapped up by collectors. He said that he had self-reported a customer who was purchasing large numbers of firearms and reselling them to the ATF, who carried out a sting operation that revealed that customer’s role in a trafficking scheme. 

In another incident, the agency approached him: a customer of Dodson’s who had only ever bought small pistols from him turned out to have been buying cartel-favored guns in bulk in El Paso. 

From a law enforcement perspective, Dodson said it’s difficult to trace “southbound” weapons. His department has caught gun smugglers headed south on camera — but if those same smugglers don’t return to Brewster County, there’s little action he can take. “We deal with northbound traffic, for the most part,” he explained. “If a guy goes down to the border and disappears out of my sight, well, you’ve got to catch him doing that.”

On the international stage, Lowy hoped that the suit would help solve numerous “northbound traffic” problems: as the cartels wrest control from Mexican law enforcement, smuggling of humans and drugs poses increased risk to Americans and Mexicans alike. “The conduct of the U.S. gun industry is having horrific effects on both sides,” he said. 

Lowy is representing Mexico in court alongside renowned Austin-based antitrust lawyer Steve Shadowen. (Per reporting by Reuters, Shadowen’s firm slashed their rates in half in support of the case when it was originally presented to a federal court in 2021 and received “numerous inquiries and offers of help” from other firms.) 

Though various media outlets reported a potential settlement in the billions, the exact scale of damages has yet to be determined. 

Mexico will also seek injunctive relief in the form of major industry-wide change — a cause that other countries have supported. In March 2023, the governments of Antigua and Barbuda, Belize, the Bahamas, Jamaica and Trinidad and Tobago filed an amicus curiae brief in support of Mexico, hoping to address their own gun violence problems. “Mexico stated publicly that the injunctive relief is extraordinarily important,” Lowy explained. “That’s having the court require the industry to behave responsibly, in a way that does not arm the cartels.”

The plaintiffs also seek something intangible. “Life in Mexico would be a far different place,” their complaint reads. “Existence for the Mexican people would be far different if life could be led without dangers and threats from the armed cartels –– less fear, more freedom to gather together and enjoy life.”