The U.S. Supreme Court seemed skeptical of Mexico’s argument on March 4 that U.S. gun manufacturers should face liability for violence committed by cartels in Mexico.
The case, Smith & Wesson v. Estados Unidos Mexicanos, came from the U.S. Court of Appeals for the First Circuit, which ruled last year that members of the American firearm industry could face a lawsuit under the Protection of Lawful Commerce in Arms Act (PLCAA).
That law generally protects firearms companies from lawsuits based on criminals misusing their products. However, it contains an exception that the First Circuit said was met in this case. More specifically, the law allows companies to face lawsuits if they knowingly violated state or federal law and if that violation was a proximate cause of a given harm.
The appeals court said Mexico’s lawsuit had adequately alleged that the firearm companies had aided and abetted “the sale of firearms by dealers in knowing violation of relevant state and federal laws.”
It added that “the Mexican government’s expenditure of funds to parry the cartels is a foreseeable and direct consequence” of dealers selling guns to buyers with illegal intentions.
During oral arguments on Tuesday, Justice Sonia Sotomayor suggested that Mexico had not done enough to show that the gun companies were liable. Mexico’s attorney said that the complaint alleged distributors were “knowingly supplying the dealers who we know sell unlawfully across the border.”
“But knowledge is not enough,” Sotomayor responded. “We have repeatedly said mere knowledge is not enough. You have to aid and abet in some way. ... You have to intend and take affirmative action to ... participate in what they’re doing.
After Sotomayor’s exchange with attorney Catherine Stetson, who argued the case for Mexico, Justice Ketanji Brown Jackson told Stetson that she thought the PLCAA required lawsuits like Mexico’s to do more to show violations of law.
Justice Clarence Thomas similarly seemed to express concern that the lawsuit didn’t show a violation of particular laws. He also asked whether Mexico would run into due process issues in alleging violations of federal law by certain individuals when they hadn’t been charged with that violation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Thomas told the attorney, “You say in your complaint there is a violation, but there’s been no finding of a violation. How do we know there is a violation?”
Jackson also seemed to worry that Mexico’s arguments would invite unwarranted judicial intervention.
“All of the things that you asked for in this lawsuit would amount to different kinds of regulatory constraints that I’m thinking Congress didn’t want the courts to be the ones to impose,” she said.
Multiple justices asked questions indicating that Mexico’s lawsuit lacked information to allege a certain level of wrongdoing on the part of gun companies.
Justice Samuel Alito asked whether the lawsuit contained allegations that gun companies would sell to specific “red flag” dealers.
Stetson responded by reading from a portion of the complaint alleging that gun companies provide dealers with guns even if the dealers have been found to violate the law.
Justice Amy Coney Barrett eventually interjected, saying that the paragraph the attorney cited didn’t identify specific dealers. “You haven’t sued any of the retailers that were the most proximate cause of the harm. And you haven’t identified them that I can tell in the complaint,” Barrett said.
Stetson then pointed to a section of the complaint citing specific instances of dealers obtaining and trafficking guns.
Justice Brett Kavanaugh asked Mexico’s attorney about the potential that her theory of liability could have “destructive effects on the American economy.”
He added, “That’s a real concern, I think, for me.”
