Can the Government of Mexico Bring the U.S. Gun Industry to Book? by John Cassidy

A federal appeals court has ruled that a lawsuit from the Mexican government against American
firearms manufacturers can move forward. Now the gunmakers are preparing an appeal to the
Supreme Court.
By John Cassidy, The New Yorker, January 31, 2024
The history of U.S. gun-control efforts is largely dispiriting. Yes, there have been some examples
of progress, such as the spread of “red flag” laws, which allow state courts to temporarily disarm
individuals who are considered a threat. At the federal level, though, the gun lobby has long
exercised an effective veto. Just last month, Republicans in the Senate blocked a bill that would
have banned assault weapons and introduced universal background checks for gun purchases.
Over the years, even certain legislative successes—such as the 1994 federal ban on assault
weapons—have been followed by terrible backward steps, including the 2004 sunsetting of the
1994 ban, and the 2005 passage of legislation that shielded gunmakers from civil suits arising
from mass shootings and other bloody crimes carried out with their products.
The gun lobby promoted this legislation, the Protection of Lawful Commerce in Arms Act
(P.L.C.A.A.), in response to fears that the firearms industry might suffer the same fate as the
tobacco industry, which, in a 1998 legal settlement, had finally been held to account for decades
of marketing deadly products and trying to hide their harmful effects. Chicago, New York, and
other cities had sued gun manufacturers and dealers for knowingly engaging in reckless and
harmful behavior. Responding to these threats, Congress created and passed a legal shield for the
gun industry, which for almost twenty years has proved largely impermeable.
Finally, there is a dent in the shield. Two years ago, the government of Mexico, a country
plagued by gun violence—much of which is carried out by weapons trafficked from the United
States—filed a lawsuit against seven U.S.-based gun manufacturers, accusing them of using
“reckless and corrupt gun dealers and dangerous and illegal sales practices that the cartels rely on
to get their guns,” designing weapons that “can be easily modified to fire automatically,” and
ignoring guidelines from the U.S. government and courts “to prevent this illegal trade.” A lower
court initially dismissed the suit, saying that the P.L.C.A.A. restrictions applied to lawsuits filed
by sovereign countries, as well as by American individuals and organizations. But a couple of
weeks ago a panel of three judges from the U.S. Court of Appeals for the First Circuit, in Boston,
ruled that the suit can move forward. “This is the first case brought by a sovereign nation against
the gun industry, and now it’s the first case where a court has upheld the right of a sovereign
nation to bring a case,” Jonathan Lowy, the founder of the public-interest group Global Action
on Gun Violence, told me.
Lowy, who is sixty-two, is a veteran of the gun-control movement. For many years, he worked
for the Brady Center to Prevent Gun Violence, named after James Brady, a former White House
press secretary who was wounded in a 1981 assassination attempt on President Ronald Reagan.
For the past couple of years, Lowy has been working with the Mexican government on its case,
which was filed in August, 2021, and dismissed by the district court in September, 2022. Now
that the First Circuit has allowed the lawsuit to go forward, Lowy said, the process of discovery
will begin. “At this stage of the case we are entitled to evidence from the gun companies, and we
can assemble the evidence and marshal our case,” he noted. “That is a very big deal. It was
discovery that turned the tide against Big Tobacco.”
The gunmakers seem determined to prevent anything like that from happening. Lawrence Keane,
the general counsel of the National Shooting Sports Foundation, a trade association for the
firearms industry, told me that the defendants intend to appeal the First Circuit decision to the
Supreme Court as early as April. “We think that the appeals court got it wrong and the case was
properly dismissed by the district court,” Keane said. “Whether the guns are smuggled into
Mexico and misused, or whether they are illegally obtained and used on the streets of Chicago or
any other city or state, manufacturers that lawfully sell products to consumers after a background
check, if they pass, are not responsible for the subsequent criminal misuse of that product, any
more than Ford is responsible for drunk-driving accidents.”
It was that sort of argument, and the gun lobby’s grip on Capitol Hill, which originally drove
Lowy to team up with the government of Mexico. About a decade ago, Lowy wrote a report on
the export of U.S. gun violence to other countries, including Mexico. After his report came out,
he spoke with Mexican officials about how they could respond to the influx of American guns.
The possibility of starting litigation inside the United States was discussed, but at that time it
didn’t go anywhere. Still, if any foreign nation was going to sue the U.S. gun industry, it was
likely to be Mexico, which has stringent domestic gun laws and only one gun dealer. The
majority of weapons recovered at Mexican crime scenes had originated in the United States, and
for years drug cartels have been using guns manufactured in the U.S. to kill members of the
police and armed forces.
After the populist Andrés Manuel López Obrador was elected President, in 2018, his foreign
ministry expressed interest in launching a lawsuit in the U.S. Lowy was part of a legal team that
included the Texan class-action specialist Steve Shadowen, which helped Mexico file a civil
complaint in Boston’s federal court against a number of firearms companies, such as the
gunmakers Smith & Wesson, Colt, Beretta, Glock, and Sturm, Ruger, and a gun wholesaler,
InterstateArms. The lawsuit asked the court to order the gun industry to change its practices, and,
according to reports, the Mexican government requested up to ten billion dollars in damages. The
compensation is meant to cover not only the deaths and injuries suffered by Mexican citizens but
higher costs for medical care and law enforcement throughout the country, as well as decreased
revenues from business activity, as firms have been reluctant to invest in Mexico.
The defendants quickly tried to get the lawsuit dismissed, arguing that the P.L.C.A.A. shields
apply to suits brought by foreign countries, and the U.S. District Court judge Dennis Saylor IV
agreed with them, in 2022. Interestingly, the First Circuit panel agreed with this general idea,
too, saying that the P.L.C.A.A. shield does generally apply to lawsuits filed by foreign
governments for harm suffered outside the United States. But the panel of judges nonetheless
restored the lawsuit, saying that Mexico “alleges a type of claim that is statutorily exempt from
the P.L.C.A.A.’s general prohibition.” This exemption applies when “a manufacturer or seller of
a qualified product knowingly violated a state or federal statute applicable to the sale of or
marketing of that product,” the ruling explained. Although Mexico hadn’t proved that such a
violation, or violations, had occurred, it also hadn’t yet had the opportunity to make that case.
The appeals court therefore ruled that the lower court had been wrong to dismiss the suit at such
an early stage.
Lowy told me the appeals-court decision was particularly important because it cited the
plaintiff’s argument that the products and sales practices of the gun industry can be the basis of
civil liability for damages inflicted by its products, even if those products didn’t malfunction. (In
the past, the gun companies have been successful in arguing that they can’t be held liable for
their guns working in the way they were designed to work—i.e., killing and wounding people.)
“This was the first federal appeals court to accept that they may have liability since the
P.L.C.A.A. was passed,” he said. “For us, it validates our approach.”
And yet the appeals-court decision represented only a preliminary victory for the plaintiffs, a fact
that was emphasized in the ruling. “Of course, our holding at this stage is based on the
allegations in the complaint, construed favorably to Mexico,” the ruling said. “Mexico will have
to support its theory of proximate causation with evidence later in the proceedings.” Lowy freely
conceded that his side still has to prove its case, but he said that he was looking forward to a trial,
adding, “That’s what we wanted: our day in court.” He didn’t seem too concerned about the
prospect of the defendants asking the Supreme Court to intercede on their behalf. “I think it is
unlikely that the Court would take this up,” he said.
Time will tell if that confidence is justified. “It could go either way,” Adam Winkler, a U.C.L.A.
law-school professor and Second Amendment expert, said when I asked how he thought the
Supreme Court might react to an appeal. “We’ve never seen a case quite like this in the gun
space.” On the one hand, Winkler pointed out, the P.L.C.A.A. did provide broad immunity to
gunmakers, and this high court had been gun-friendly: in the last year alone, the courts have
struck down about thirty state gun laws after the Bruen decision, which deemed New York’s
concealed-carry-licensing law unconstitutional. On the other hand, Winkler added, Mexico has
made some strong arguments for why the P.L.C.A.A. doesn’t apply in this case, and the Supreme
Court has already allowed at least one case challenging the legislation to proceed: a lawsuit that
some families of the Sandy Hook Elementary School victims brought against Remington Arms,
for how it marketed the Bushmaster assault rifle used in the massacre. (That case ended with
Remington settling and paying damages of seventy-three million dollars.)
If the Mexico suit is allowed to go ahead, Lowy has experience with how it may proceed. In the
late nineteen-nineties, when he was representing the big cities in their cases against gun
manufacturers, he personally deposed some of the companies’ C.E.O.s. When I asked him what a
successful outcome two decades later would mean, he said that it would have a significant
impact on gun violence, not only Mexico and other countries where American guns get
trafficked to but also in the United States, because it would force the gun industry to behave less
recklessly. The plaintiffs are asking the court to impose a number of specific standards and
practices on the gun manufacturers, which could include requiring training for their dealers and
not supplying bad actors who facilitate trafficking. “That’s how criminals have got their guns for
thirty years, or more,” Lowy said. “This case could stop that.”
Keane denied that recognized gun dealers are a major supplier of weapons to traffickers. He also
said that if the case does go ahead, the defendants may depose López Obrador, the Mexican
President. “The Mexican government is responsible for going after the Mexican drug cartels,” he
said. “It is not the responsibility of the U.S. firearms industry.” Winkler, the U.C.L.A. law
professor, said that Mexico, even if its case survives an appeal to the Supreme Court, will have a
heavy burden in proving the gunmakers’ liability. During the tobacco industry litigation, he
reminded me, the initiative didn’t shift to the plaintiffs until information was unearthed that
showed the manufacturers knew about the dangers of secondhand smoke and had promoted false
studies to fool the public. “I’m not particularly confident that that kind of evidence exists in the
context of the gunmakers,” Winkler said. “It’s a long, tough road.”
Lowy insisted that, whatever happens next, the appeals-court ruling has vindicated the strategy
of extending U.S. gun-control efforts to the international level and may encourage other
countries to get involved in it. In the United States, he said, the political environment had
become so constraining that even supporters of gun control were limiting themselves to overly
modest goals. “To me, there is a big story here about this new approach to preventing gun
violence,” he explained. “You step outside the United States, and people think what is happening
here is insane. Our strategy is to bring that force and passion to bear in the United States.”
A few months ago, Lowy spoke at a conference in Trinidad and Tobago, where officials from a
number of Caribbean nations expressed great interest in the case in Boston, because of gun
violence within their own borders. Lowy and his colleagues are already involved in a second
federal case in Arizona, where the government of Mexico is suing a group of gun dealers there
for allegedly facilitating the trafficking of military-style weapons to Mexican drug cartels. (A
preliminary hearing in that case has been set for next month.) On a slightly different but related
tack, Lowy’s organization has joined a class-action case in Canada, where the victims of a 2018
mass shooting in Toronto are suing Smith & Wesson for its design of the gun used in the
shooting, an M&P .40-calibre semi-automatic handgun. In yet another initiative, Global Action
on Gun Violence, acting on behalf of some victims of the 2018 Parkland High School shooting,
has filed a case with the Inter-American Commission on Human Rights, an independent offshoot
of the Organization of American States, claiming that U.S. gun policy infringes international
human-rights law. “U.S. gun violence is one of the great violations of human rights in the world
today,” Lowy said. “If you look at the deaths and injuries year after year, I don’t think there is
another violation that compares with it.”
After decades of being frustrated at the glacial pace of gun-control efforts, Lowy said that the
appeals-court ruling and other recent developments at the international level have left him
feeling more encouraged. “When you go outside the United States, there isn’t this political
division, and you get bolder action,” he said. “The U.S. government could have, and should
have, brought a lawsuit like the Mexican case decades ago.”