Supreme Court Unanimously Rejects Mexico’s Attempt to Blame American Gun Manufacturers for Cartel Violence
In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, the U.S. Supreme Court unanimously held that Mexico failed to plausibly allege that American gun manufacturers aided and abetted criminal activity in Mexico. As a result, the Mexican government’s claim for $10 billion will be dismissed.
The Protection of Lawful Commerce in Arms Act generally protects firearms manufacturers from lawsuits caused by gun-using criminals. It allows such lawsuits to proceed in only two limited instances: where the transaction is the proximate cause of the injury, or where the manufacturer aids and abets another’s violation.
Mexico alleged that American gun manufacturers knowingly sold weapons to retailers who illegally sold those weapons to Mexican gun traffickers. In the Obama years, the gun retailers told the ATF about sales that they thought were shady. In two operations, Wide Receiver and Fast & Furious, ATF told the gun sellers that it knew about the shady transactions and was trying to roll up the network. That plan didn’t work, and ATF’s Fast & Furious lawless and ignominious foolishness came to an end when Brian Terry, a Customs and Border agent, was killed in a firefight near the border, and two Fast & Furious firearms, which ATF said it was monitoring, were recovered at the scene.
In her majority opinion, Justice Kagan focused on the problems with Mexico’s aiding and abetting claim. In its friend of the court brief, ACRU focused on the problems with the proximate cause claim, but Justice Kagan said the Court didn’t need to address proximate cause because of the problems with the aiding and abetting theory. She observed that, while someone could aid and abet a broad category of harm, as Mexico alleged here, the “participation must be correspondingly ‘pervasive, systematic, and culpable.’” In addition, unless there is “an independent duty to act,” the claim cannot be based on “failure[s]”, “omissions,” or “inactions.” Finally, “routine and general activity that happens on occasion to assist in a crime—in essence, ‘incidentally’—is unlikely to count as aiding and abetting.”
The Court concluded that Mexico’s claim fails. Even if some bad sales occur, and the manufacturers know of it, nothing suggests that the manufacturers participate in those sales “as in something [they] wish to bring about” and “seek by [their] action to make” succeed.” Mexico’s claim was general; it did not allege specific violations. More to the point, the gun manufacturers sell to distributors, who then sell to the gun dealers: “Given that industry structure, Mexico’s complaint must offer some reason to believe that the manufacturers attend to the conduct of individual gun dealers, two levels down.” The complaint does not even address that issue.
In sum, Mexico’s lawsuit was the kind of claim Congress wanted to preclude when it enacted the Protecting Lawful Commerce in Arms Act. If Mexico’s allegations were enough, the exception for aiding and abetting activities would swallow the rule.
Justices Thomas and Jackson each wrote concurring opinions. In his opinion, Justice Thomas noted, “It seems to me that the [Act] 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.’” Otherwise, a civil defendant would have to defend itself against a quasi-criminal allegation “without the full panoply of protections that we otherwise afford to criminal defendants.” Justice Thomas suggested that the issue deserved attention.
