Second Amendment Roundup: Court Seems Disposed to Rule for S&W and Against Mexico
The March 4 oral argument in Smith & Wesson Brands v. Estados Unidos Mexicanos appeared to go very well for S&W and not well for Mexico. Mexico’s lawsuit seeks to hold America’s federally-licensed firearm industry responsible for the cartel violence that plagues Mexico and to prohibit the industry from doing ordinary business in compliance with the federal Gun Control Act.
Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 to prohibit lawsuits against the gun industry for crimes committed by third parties. Unable to persuade legislatures to enact prohibitionist measures, the anti-gun movement began bringing such litigation in the 1980s to try and destroy the industry via time and resource-consuming lawsuits and discovery. PLCAA sought to end such abuse of the legal system.
PLCAA requires courts to dismiss any “qualified civil liability action,” which means an action brought against a licensed manufacturer or seller of a “qualified product” – a firearm or ammunition – “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. § 7903(5)(A)(iii). That excludes an action in which a manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”
Mexico claims that S&W and other manufacturers violated Federal criminal statutes by aiding and abetting the unlawful sale of guns and ammo by dealers to straw purchasers, who unlawfully transferred the firearms to others, who then (also unlawfully) exported them without a license from the Department of Commerce to Mexico, who transferred them to the cartels, which used them to harm others, which proximately causes harm to Mexico.
From the oral argument, it appears likely that the Supreme Court will rule narrowly in the defendants’ favor on aiding and abetting liability. There seemed to be at least six or seven votes for holding that Mexico’s complaint does not allege sufficient facts to trigger aiding and abetting liability for the defendant firearms manufacturers whose products are allegedly diverted to Mexican cartels by rogue gun dealers.
During the argument, Justice Barrett had the following exchange with Noel Francisco, counsel for the manufacturers:
JUSTICE BARRETT: Is there any reason for us to reach the proximate cause question if we conclude for aiding and abetting that you win?
MR. FRANCISCO: If you rule for us on aiding and abetting, that will completely dispose of the case. The reason to also address proximate cause is because it’s an extraordinarily important issue that I think applies in many different contexts, which is why there’s such a broad range of amici in this case that go well beyond the firearms industry. So, while you could completely resolve it on aiding and abetting, I would … urge you to address proximate cause as well.
The firearms industry is facing a wave of lawsuits in which anti-gun activists are asking courts to hold the industry responsible for the criminal misuse of its products by third parties. E.g., Lowy v. Daniel Defense, et al., No. 24-1822 (4th Cir.) (lawsuit seeking to hold fifteen members of the firearms industry liable for school shooting in Wa
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