December 04, 2024
Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos
Case at a Glance
The Court will consider (1) whether firearms production and sales in the United States is a proximate cause of alleged injuries to the Mexican government from drug cartel violence in Mexico, and (2) whether the industry’s production and sale of firearms in the United States amounts to unlawful aiding and abetting because the firearms companies allegedly knew some of their products were unlawfully trafficked.
Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos
Docket No. 23-1141
Argument Date: March 4, 2025
From: The First Circuit
By Linda S. Mullenix, University of Texas School of Law, Austin, TX
Issues
Is the firearm industry’s production and sale of firearms in the United States a proximate cause of harm to the Mexican government from drug cartel gun violence in Mexico?
Does the production and sale of firearms in the United States amount to the unlawful aiding and abetting of gun violence because the firearms’ companies know that some of their products are unlawfully trafficked?
Facts
In the last two decades, Mexico has experienced an ever-increasing flow of firearms into the country, resulting in a sharp increase in gun violence. Not only has gun trafficking victimized the Mexican citizenry, but it has also affected the domestic economy, increased Mexican migration to the United States, and shortened residents’ lifespans.
The country has only one gun store, which is managed by the Mexican Army. There is no gun production in Mexico, no private gun shops, and no gun shows. The army conducts strict and universal background checks. As of 2018, Mexico issued only 3,215 private gun licenses for low-caliber firearms. Illegal firearms possession was the third leading cause for imprisonment.
Academic research has documented that the number of gun shows in the United States is significantly associated with the illegal export of guns into Mexico due to lax restrictions on the movement of firearms. The U.S. government generally has engaged in weak oversight of illegal gun trafficking between individuals and dealers in the United States and gun recipients in Mexico.
In 2017, 29,168 people were murdered in Mexico, the highest homicide incidence since the government began collecting data. There were more homicides in Mexico than in any other country except for Brazil, which has 80 more million people, and India, which has 10 times the population of Mexico. Two-thirds of Mexican homicides involved guns; between 2012 and 2017 the use of firearms in street robberies and kidnappings increased by 35 percent.
Between 2013 and 2018 more than 70 percent of guns seized in Mexico originally were sold in the United States. The Giffords Center for Violence Intervention reports that in 2018 there were more than 20,000 gun-related homicides, seven times as many as in 2003. An Alcohol, Tobacco, and Firearms (ATF) gun trafficking investigation found that between 2017 and 2020 more than 3,400 cases involved unlicensed dealers, and 40 percent involved straw purchasers.
Everytown for Gun Safety reported that from 2015 through 2022 more than 160,000 people were killed by a gun in Mexico. The rate of firearms homicides rose by 109 percent, and the rate of gun assaults rose by 31 percent. One study found that 669 people were killed due to cartel conflicts in 2006; the number rose to 16,000 in 2020, “a staggering increase.”
In addition, firearms traffickers have taken advantage of “ghost gun” kits that allow people to build their own unserialized firearms, such as AR-15s and short-barreled rifles. A Texas gun dealer was indicted for smuggling 4,800 untraceable AR-15 and 180 short-barreled rifles into Mexico between 2018 and 2022. As of the first half of 2023, 15,082 people had been murdered in Mexico, with 10,615 of the reported homicides involving firearms.
Observers have suggested that Mexico is awash in guns. U.S. straw purchasers buy an estimated 200,000 firearms at gun shows or firearms stores, which are then trafficked to Mexico. Drug cartels use military-style weapons to attack the military; assassinate politicians; and kill and injure judges, journalists, police, and ordinary citizens throughout Mexico.
U.S. border states account for a high percentage of the illegal gun trade flowing into Mexico. According to the U.S. Government Accounting Office (GAO), over a five-year period Texas accounted for more than 40 percent of illegal guns seized in Mexico; Arizona accounted for another 15 percent.
According to the ATF, Texas, Arizona, California, New Mexico, and Florida are the top five states that originally supplied guns recovered in Mexico from 2017 to 2021. These five states accounted for 26,001 firearms, or 79 percent of all guns recovered and traced back to U.S. states of origin. Texas accounted for 14,000 of those firearms. During these years, 907 cases—or 64% of international trafficking investigations—involved guns transported from Texas or Arizona.
Although these five states are the primary source of illegally trafficked guns, a report from Mexico’s Secretariat of Security and Citizen Protection documented that guns recovered from crime incidents were also trafficked from Washington, Utah, Colorado, Missouri, Georgia, and Florida. The GAO reported that Washington, Nevada, Colorado, Oklahoma, Illinois, and Florida were top sources for guns used to commit crimes in Mexico. Drug cartels frequently destroy the branding and serial numbers to disrupt tracing of these firearms. Throughout Latin America, the diversion of firearms to the illegal market is accomplished through forged end-user certificates, with the complicity of corrupt officials and private security companies. Firearms diversion occurs from military and law enforcement inventories.
Several sociopolitical and economic factors complicate Mexico’s gun trafficking problem. The drug cartels’ use of .50-caliber weapons has escalated an arms race between cartels and the government. The influx of firearms has had other deleterious effects on the Mexican state and economy. Media reports of drug cartel violence and street crime have affected tourism, political stability, economic development, and private investment in the country.
One commentator has noted that, by a conservative estimate, crime and concomitant insecurity cost the country at least 1.1 percent of its gross domestic product (GDP). Gun violence is a contributor to decreasing life expectancy of Mexicans, after a steady increase in life expectancy during the 20th century.
In August 2021, the Mexican government filed a lawsuit against seven firearms manufacturers and one distributor in Massachusetts federal district court. The complaint asserted nine claims and sought damages and injunctive relief for the expenses the government incurred in addressing the consequences of gun violence. The allegations included damages attributable to the costs of increasing police and military forces as well as to the judicial system. Damages were estimated in the range of $10 billion.
The lawsuit requested damages, civil penalties, restitution, and disgorgement of profits to the Mexican government. Mexico requested a court order to abate the public nuisance and to create, implement, reasonably monitor, and discipline defendants’ distribution practices. The Mexican government requested that gun manufacturers be required to integrate reasonably available safety mechanisms in their guns, including devices to prevent unauthorized use. The lawsuit requested the defendants fund studies, programs, and advertising campaigns focused on preventing unlawful gun trafficking.
A theory underlying the lawsuit was that the firearms defendants knowingly aided and abetted illegal gun trafficking. Mexico contended that by engaging in the firearms trade, the defendants were responsible to follow relevant business practice laws and comply with the highest standards of Mexican import and U.S. export laws, tort laws, and federal and state gun laws. The defendants’ failure to comply with these duties and responsibilities has caused substantial harm to Mexico.
Mexico asserted claims for negligence, contending the defendants’ negligent marketing, distribution, and sales practices allowed traffickers to obtain high-capacity firearms. Mexico also asserted a public nuisance claim because the gun dealers were engaged in straw sales, and despite knowing the practice, continued to supply guns to these dealers.
Mexico asserted that the Protection of Legal Commerce in Arms Act (PLCAA) (15 U.S.C. § 7901 et seq.) did not apply because Mexico’s damages occurred outside the United States. In any event, were the court to apply PLCAA, several exceptions vitiated PLCAA immunity. The complaint asserted a claim for negligence per se, an exception to liability under PLCAA that applies when sellers violate any gun sales law.
The defendants requested the court to dismiss Mexico’s lawsuit. They argued (1) that PLCAA provided the defendants with immunity from civil lawsuits, (2) that the Mexican government lacked standing to sue, and (3) that the Massachusetts court lacked personal jurisdiction over defendants without sufficient Massachusetts contacts to support jurisdiction. The defendants moved to dismiss for failure to state a claim upon which relief could be granted, a lack of Article III standing, and a lack of personal jurisdiction.
The defendants contended that the public nuisance claim was too vaguely asserted and not supported by current law. They argued that firearms misuse in Mexico was too remote from the defendants’ practices, and that firearms members had no obligation to protect Mexico from the criminal misuse of their products in Mexico. Mexico was responsible for protecting against the harm and damages it claimed in the lawsuit.
On September 30, 2022, the Massachusetts district court dismissed Mexico’s lawsuit stating that “while the Court has considerable sympathy for the people of Mexico,” the Mexico claims did not outweigh PLCAA protections to gun manufacturers. The court held that Mexico had standing, finding that Mexico plausibly pleaded that the gun violence and injuries resulting from the flood of firearms from the third-party defendants to Mexico was traceable to the named defendant’s conduct.
The court extensively discussed PLCAA’s extraterritorial reach, rejecting Mexico’s contention that PLCAA did not apply to a foreign government’s lawsuit based on harms that primarily occurred in a foreign country. Citing recent Supreme Court jurisprudence, the court determined that Mexico failed to rebut the presumption against PLCAA’s extraterritorial application. All of the defendants’ conduct occurred within the United States, and Mexico’s lawsuit presented a valid domestic application of PLCAA.
The court determined that PLCAA applied, requiring dismissal of the lawsuit. PLCAA unequivocally barred lawsuits that sought to hold manufacturers responsible for individuals’ actions in using guns for their intended purposes. Although PLCAA contained several exceptions, none applied.
The court focused on PLCAA’s predicate statute exception, noting that the exception applied only to statutes and not common-law claims. Therefore, Mexico’s claims for negligence and other common-law claims did not come within PLCAA’s predicate statute exception. Discussing the controversy over the types of statutes subject to PLCAA’s predicate statute exception, the court declined to decide whether the exception applied to Mexico’s two statutory claims.
The court further held that PLCAA’s exception for actions against sellers for negligence per se did not apply. Finally, the court determined that PLCAA’s exception for claims alleging design or manufacturing defects did not apply to override the defendants’ immunity from suit. Because Mexico’s complaint alleged that drug cartels and other criminals caused its injuries, those allegations were sufficient to conclude that the design-defect claims were based on volitional acts by intervening criminal offenses that were the sole proximate cause of Mexico’s injuries.
On January 22, 2024, the First Circuit reversed and remanded the district court’s decision, reinstating Mexico’s lawsuit. The court addressed PLCAA’s extraterritorial reach, the predicate statute exception, and Mexico’s plausible pleading of claims within PLCAA’s predicate statute exception. In a surprising holding, the court concluded, as a matter of first impression, that PLCAA’s predicate statute exception included common law as well as statutory claims.
The court agreed that PLCAA’s limitations applied to foreign government lawsuits against firearm defendants for harm outside the United States. The court rejected Mexico’s argument that PLCAA had no extraterritorial effect. Applying PLCCA, the court held that Mexico plausibly pleaded claims that came within PLCAA’s exceptions to immunity, reversing the district court’s holding that PLCAA barred Mexico’s common-law claims.
The court rejected the defendants’ arguments that Mexico’s claims were not for statutory violations, that Mexico failed to adequately plead predicate statute violations, and failed to adequately plead proximate cause. Therefore, PLCAA did not prevent its litigation from proceeding.
The court held that the predicate statute exception embraced common-law claims in addition to statutory claims, if there was a predicate statutory violation that proximately caused the harm. PLCAA’s text, the court indicated, compelled this conclusion. The requisite proximate cause requirement provided the nexus between the predicate statute violation and common-law claims.
The court held that the complaint satisfied proximate cause because Mexico’s alleged “aiding and abetting the illegal sale of a large volume of assault weapons to the cartels foreseeably caused the Mexican government to shore up its defenses and to incur related costs.”
Turning to Mexico’s pleading, the court concluded that Mexico adequately alleged that the defendants aided and abetted the knowing unlawful trafficking of their firearms to Mexico, except for its claim of the unlawful sale of machine guns. The court noted that whether Mexico would be able to support its contentions with summary judgment evidence or at trial remained to be seen. At this stage, however, dismissal for failure to state a claim was inappropriate.
The court determined that Mexico adequately alleged the predicate statute’s proximate cause requirement, rejecting the defendants’ eight-step causal analysis. Surveying causality decisions in gun violence litigation, the court aligned with jurisdictions that recognized that selling guns into an illegal market might cause direct harm to a governmental entity that was not derivative of harm to its residents.
The court also rejected the defendants’ pragmatic attack on proximate cause based on the infeasibility of ascertaining plaintiffs’ damages distinct from independent causes and the difficulties in apportioning damages without multiple recoveries. The court noted that it did not believe there would be a problem of multiple recoveries or damage assessments attributable to each defendant. On April 18, 2024, Smith & Wesson filed its petition for a writ of certiorari with the Supreme Court.
Case Analysis
In the late 1990s and early 21st century, several municipalities began to sue firearms defendants for gun violence harms to their communities. In response to the gun industry’s growing concerns of exposure to liability for gun manufacture, distribution, marketing, sale, and use, the firearms industry turned to Congress to provide the industry with immunity for liability for gun-related harm.
In 2005, Congress enacted the PLCAA in direct response to the “[l]awsuits…commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek monetary damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.”
PLCAA sets forth several findings and purposes that include preservation of Second Amendment rights, protection of interstate commerce, and prevention of legal abuse through frivolous gun litigation. The act provides firearm defendants with immunity against any federal or state litigation.
PLCAA’s primary purpose is to contend with abusive firearms litigation and to stem judicial approval of plaintiffs’ emerging novel tort theories unknown to centuries of common law. Judicial approval of novel legal theories would constitute a deprivation of rights, privileges, and immunities guaranteed under the Fourteenth Amendment. The act aims to avert financial ruin of an entire industry through frivolous gun litigation and extortionate settlement pressure for appropriately designed and functioning products.
PLCAA states that firearms businesses are engaged in interstate and foreign commerce of the lawful design, manufacture, marketing, distribution, importation, and sale to the public of guns or ammunition. Therefore, industry actors are not and should not be liable for harm caused by criminal or unlawful misuses of firearms products or ammunition that function as designed or intended.
The findings flag several constitutional concerns, noting that federal, state, and local laws highly regulate manufacturers, importers, possessors, and sellers. The possibility of imposing liability on an entire industry erodes public confidence in the nation’s laws, threatens diminution of basic constitutional rights and civil liberties, invites destabilization of other industries and economic sectors competing in the American free enterprise system, and constitutes an unreasonable burden on interstate and foreign commerce. Efforts to use the judiciary to regulate interstate firearms commerce through judgments and decrees threatens the separation of powers doctrine and weakens federalism principles, state sovereignty, and comity among the states.
To shield the firearms industry from liability for gun harms, PLCAA provides qualified immunity and defines actors and products the statute governs, exceptions, and rules of statutory construction. The immunity provisions protect any actor engaged in the firearms business, including manufacturers and ammunition sellers.
The statute comprehensively immunizes the firearms industry against “qualified civil liability actions from being brought in any federal or state court” for the criminal or unlawful use of a “qualified product,” broadly defined as firearms, ammunition, or gun component parts. Industry actors are immunized from lawsuits brought by “any person against a firearms manufacturer for damages resulting from a third party’s misuse of the defendant’s product.” 15 U.S.C. § 7903(5)(A). In some instances, firearms actors can be sued for damages resulting from defective products, breach of contract, criminal misconduct, and violation of certain statutes and gun control measures.
PLCAA sets forth six exceptions to defendants’ qualified immunity. 15 U.S.C. § 7903(5)(A)(i)–(vi). These include (1) an action by a victim harmed by someone’s unlawful conduct, convicted of knowingly transferring a firearm, aware that the firearm would be used to commit a violent crime; (2) an action for negligent entrustment and for negligence per se; (3) an action based on a firearm industry member’s knowing violation of a statute applicable to the sale and marketing of firearms; (4) an action for breach of contract or warranty in connection with a product; (5) an action for injuries due to product defects so long as no criminal conduct played a role in bringing about injuries; and (6) an action against industry defendants convicted of violating the federal Gun Control Act or comparable state laws.
In the last 20 years, PLCAA’s predicate statute exception has been the object of most gun litigation. Gun violence victims have invoked various predicate statutes to remove defendants’ qualified immunity, but until recently, these efforts largely failed. PLCAA’s predicate exception permits “action[s] in which a manufacturer or seller of a [firearm or ammunition] 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.” To invoke this exception, a plaintiff must present a cognizable claim along with a knowing violation of a predicate statute.
Two types of claims come within PLCAA’s predicate statute exception. First, a manufacturer or seller may be subject to suit if they knowingly falsify or fail to keep records required under federal or state law with respect to the firearm or ammunition or the lawfulness of a gun transfer. Second, a manufacturer may be subject to suit where the manufacturer aided, abetted, or conspired to sell a firearm or ammunition that it knew or had reasonable cause to know that the actual buyer was prohibited from possessing a firearm under federal law.
On appeal, Smith & Wesson argues that the First Circuit’s decision is irreconcilable with PLCAA, focusing on the statute’s proximate cause and aiding-and-abetting requirements. To qualify for PLCAA’s predicate statute exception, the defendant’s conduct must be the proximate cause of the plaintiff’s injuries. The gun manufacturer contends that under traditional tort law, the proximate cause of a harm requires a direct connection between a defendant’s conduct and a plaintiff’s harm. A company’s manufacture and sale of a lawful product cannot be a proximate cause of injury resulting from independent criminal misuse of its products.
To contest proximate cause, Smith & Wesson dramatizes the multistep, attenuated causal chain of transactions from the manufacture of a firearm to the ultimate injured claimant. Thus, a firearm passes from a federally licensed manufacturer to a federally licensed distributor, to a federally licensed dealer, some of whom sell firearms to criminals, and some of which are smuggled into Mexico, which eventually wind up in the hands of drug cartels, ultimately harming the government through increased costs. “No court,” the defendants protest, “has ever found proximate cause on such a remote theory.” If a court accepts this attenuated theory of liability satisfies proximate cause, then that term has no meaning.
Likewise, Smith & Wesson argues that Mexico’s aiding-and-abetting claim is equally unavailing, requiring some culpable conduct. Accomplice liability requires some specific unlawful act. Mexico cannot factually support any showing that the firearms defendants coordinated their conduct with illicit sellers, smugglers, or drug cartels. The plaintiff did not allege any coordinated activities with the drug cartels.
Instead, Mexico’s case hinges on a description of the defendants’ routine business practices, that the industry was aware that some dealers sold their firearms illegally, and therefore they became complicit in gun trafficking into Mexico. Smith & Wesson contends that an aiding-and-abetting claim requires a defendant’s affirmative act. Yet, every product manufacturer knows that its products may be criminally misused downstream, “but such knowledge has never been enough to generate criminal liability, lest the entire economy grind to a halt.”
Smith & Wesson relies heavily on Twitter, Inc. v. Taamneh, in which the Court last term defined aiding and abetting as requiring an affirmative act taken with the intent to help a crime to succeed. 598 U.S. 471 (2023). Mexico’s aiding-and-abetting claim, Smith & Wesson argues, is foreclosed by this decision. Thus, a company that engages in routine business practices does not render its participants accomplices in misconduct, even if they are aware that their products may be criminally misused somewhere downstream from an original sale.
“At bottom, when the maker or supplier of a lawful product places it into the stream of commerce, the business is not charged with purging all criminals who may be waiting along the banks and the passive failure to do so is ‘insufficient’ to give rise to accomplice liability.”
Smith & Wesson sounds an alarm that acceptance of Mexico’s liability theory would undermine bedrock principles of traditional tort law that safeguard the entire economy. Thus, under conventional law, when an independent criminal misuses a lawful product, the criminal is responsible for their actions, not the company that made or sold the product. “If the rule were otherwise, every industry—from beer to cars to knives—would be on the hock for the predictable misuse of its product.”
Referencing PLCAA’s legislative history, findings, and purposes, Smith & Wesson notes that Congress enacted PLCAA to deal with a late-1990s spate of municipal firearms lawsuits, characterizing that litigation as without foundation and repudiating civil liability concepts that transgressed hundreds of years of common law. Congress thus recognized this litigation as lawfare designed to circumvent the legislative branch of government, to regulate the firearms industry through judgments and judicial decrees. This development “threatened separation of powers doctrine, federalism, and state sovereignty.” Citing a U.S. House of Representatives report, Smith & Wesson suggests activists understood that the firearms litigation process was the punishment, where massive attorneys fees would be sufficient to bankrupt the industry.
In response, Mexico focuses the Court on the very early procedural posture of the lawsuit, which the First Circuit upheld at the pleadings stage. Thus, the thrust of Mexico’s argument is that to avoid an early dismissal, a plain reading of PCLAA’s predicate statute exception merely requires a plaintiff to allege that the defendants “knowingly violated a State or Federal statute applicable to the sale or marketing of the product,” including aiding and abetting such violations, where the violation was “a proximate cause of the harm for which relief is sought.” 15 U.S.C. § 7903(5)(A)(iii).
This, Mexico argues, is exactly what they alleged, and therefore the First Circuit correctly determined that Mexico had plausibly pleaded a PLCAA claim to allow the litigation to proceed to discovery and a trial on the merits. Mexico characterizes the appellate court’s decision as a narrow ruling at the preliminary stage of litigation, meaning that the plaintiff had overcome “one of many procedural hurdles standing between it and relief.”
Mexico objects that the defendants seek, through this litigation, to obtain a very broad ruling that they are categorically immune from even the prospect of liability under PLCAA. Further, Mexico argues that the defendants have willfully mischaracterized the lawsuit as seeking to hold them responsible for their engagement in nothing but lawful behavior, and that they cannot be held liable for the mere knowledge that their guns might be illegally sold.
In contrast, Mexico asserts that its lawsuit alleges unlawful, deliberate actions by the defendants. Citing the very title of the statute—Protection of Lawful Commerce in Arms Act—Mexico points out that the statute does not protect unlawful commerce in arms. Thus, where gun manufacturers or sellers engage in defined wrongful conduct, they can be subject and liable to civil liability.
Mexico explains that PLCAA represents a very balanced approach whereby Congress intended to protect firearm manufacturers and sellers who lawfully sold guns used by third-party criminals but not to protect manufacturers and sellers who themselves engaged in wrongful or negligent conduct. Mexico notes that since PLCAA was enacted, courts have allowed lawsuits against gun defendants to proceed past the motion-to-dismiss stage where the plaintiffs plausibly pleaded facts consistent with the predicate statute exception (as Mexico argues it has done in this litigation).
Mexico asserts, in contrast to the gun defendants, that aiding and abetting requires a defendant’s conscious and culpable assistance in an underlying wrong, which Mexico argues that it has plausibly pleaded facts supporting this in its complaint. Thus, the firearms defendants deliberately sell large quantities of their guns to red-flag dealers and cultivate a market for their firearms in Mexico through design and marketing decisions.
Mexico challenges the firearm defendants’ contention that conducting business as usual can never constitute aiding-and-abetting behavior. The plaintiff points out that the Court has never accepted a “business as usual” exception to aiding-and-abetting liability. The defendants’ business-as-usual construct ignores Mexico’s allegations, is antithetical to classic aiding-and-abetting principles the Court has endorsed, and would radically limit the aiding-and-abetting theory widely used in everyday civil and criminal litigation.
Mexico likewise rejects the firearm defendants’ misunderstanding of PLCAA’s proximate cause requirement, which Mexico argues it has plausibly pleaded. The firearm defendants reject that their conduct was a proximate cause of Mexico’s harm, contending that liability is cut off whenever there are multiple intervening steps between a product’s manufacture and its end use. The defendants’ notion of proximate cause, Mexico argues, represents a formulation that the common law rejected historically, and makes no sense given PLCAA’s text and goals. Furthermore, the firearm defendants’ construct of proximate cause would be too easy to manipulate in PLCAA litigation and an array of tort litigation apart from the PLCAA context.
Mexico argues the gun defendants’ formulation of “first-step” proximate cause has no basis in the law, logic, or PLCAA. Instead, the plaintiff contends that foreseeability is the crux of proximate cause and that defendants may be held culpable for harms from foreseeable intervening forces within the scope of the original risk. An injury may have multiple proximate causes if it is foreseeable that each would lead to harm. According to Mexico, PLCAA incorporates this traditional understanding of proximate cause. The firearm defendants violated statutes prohibiting the sale of guns to straw purchasers and exporting guns to Mexico; these violations foreseeably harmed Mexico, its property, military, and police.
Sounding an ultimate alarm to the Court, Mexico suggests that adopting the gun defendants’ theory of proximate cause would preclude liability in these firearms cases and in many other cases where the casual chain goes beyond the “first step” and involves third parties. Mexico counsels: “That is not the law. Nor should it be.”
Significance
The Smith & Wesson firearms lawsuit is the first PLCAA litigation to reach the Supreme Court and thus is of signal importance and compelling interest to individual and community victims of gun violence as well as the entire firearms industry and its lobbyists. It is important to note that this is a firearms litigation that does not implicate the Second Amendment right-to-bear arms constitutional issues, and neither litigants on either side have argued this as a Second Amendment gun case.
Previously, the Court declined to review a PLCAA decision from the Connecticut Supreme Court upholding litigation under PLCAA’s predicate statute exception against the firearms defendants in the Sandy Hook Elementary School shooting. The Court’s refusal to review that PLCAA decision opened a pathway for other gun violence victims to pursue litigation against gun manufacturers, distributors, sellers, and end users under PLCAA’s predicate statute exception.
A great deal depends on how the Court chooses to frame the PLCAA issues. The firearms industry and its amici clearly are seeking a very broad interpretation of PLCAA, to reaffirm the industry’s longstanding immunity from civil lawsuit and liability. If the Court accepts this invitation to make broad PLCAA pronouncements on the concepts of aiding and abetting and proximate cause, this will represent a continuing roadblock to advocates seeking to hold the firearms industry accountable for gun violence harms to individuals and communities.
On the other hand, if the justices accept Mexico’s framing of the appeal as a matter of preliminary procedural pleading, then the Court could issue a narrowly tailored decision upholding the First Circuit’s similarly narrow decision. Mexico has reduced its appeal to a simple issue: that it satisfied its burden at the pleading stage of plausibly pleading sufficient facts of a PLCAA predicate statute exception to avoid a motion to dismiss. Mexico also urges the Court to reject the gun industry’s restrictive proximate cause and aiding-and-abetting concepts, pointing to the negative jurisprudential ramifications for other litigation.
Moreover, the nine states that have now passed targeted public nuisance and consumer protection firearms statutes that come within PLCAA’s predicate statute exception and the firearms industry will be watching the Court’s PLCAA rulings with great interest. The firearms industry has challenged these new statutes, and some are on federal appeal. The Court’s decision, whether broad or narrow, will undoubtedly affect the fate of these novel statutes.
ATTORNEYS FOR THE PARTIES
For Petitioner Smith & Wesson Brands, Inc. (Noel J. Francisco, 202.879.3939)
For Respondent Estados Unidos Mexicanos (Catherine E. Stetson, 202.637.5600)
AMICUS BRIEFS
In Support of Petitioner Smith & Wesson Brands, Inc.
American Constitutional Rights Union and Lt. Col. (ret.) Allen West (John J. Park, 678.608.1920)
American Free Enterprise Chamber of Commerce (Michael B. Buschbacher, 202.955.0620)
Atlantic Legal Foundation (Lawrence S. Ebner, 202.729.6337)
Buckeye Institute and Mountain States Legal Foundation’s Center to Keep and Bear Arms (David C. Tryon, 614.224.4422)
Firearms Policy Coalition, Inc. (David H. Thompson, 202.220.9600)
Firearms Regulatory Accountability Coalition, Inc.; Hill Country Class 3, LLC, d/b/a Silencer Shop; NST Global, LLC, d/b/a SB Tactical; and Palmetto State Armory, LLC (Stephen J. Obermeier, 202.717.7000)
Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Heller Foundation, Tennessee Firearms Association, Tennessee Firearms Foundation, Grass Roots North Carolina, Rights Watch International, Virginia Citizens Defense League, Virginia Citizens Defense Foundation, America’s Future, U.S. Constitutional Rights Legal Defense Fund, and Conservative Legal Defense and Education Fund (William J. Olson, 703.356.5070)
Landmark Legal Foundation (Matthew C. Forys, 703.544.6100)
Montana, 26 Other States, and the Arizona Legislature (Peter M. Torstensen, Jr., 406.444.2026)
National Association for Gun Rights and the National Foundation for Gun Rights (Gary M. Lawkowski, 703.574.1654)
National Rifle Association of America, FPC Action Foundation, and Independence Institute (Joseph G.S. Greenlee, 703.267.1161)
Product Liability Advisory Council and American Tort Reform Association (Philip S. Goldberg, 202.783.8400)
Second Amendment Foundation (Thomas R. McCarthy, 703.243.9423)
Shooting Sports Foundation, Inc. (Paul D. Clement, 202.742.8900)
U.S. House of Representatives (Matthew B. Berry, 202.225.9700)
U.S. Senator Ted Cruz, U.S. Representative Darrell Issa, and 37 Other Members of Congress (H. Christopher Bartolomucci, 202.787.1060)
Washington Legal Foundation (Cory L. Andrews, 202.588.0302)
In Support of Respondent Estados Unidos Mexicanos
Dean Erwin Chemerinsky and Professor Christopher Kutz (Robert S. Peck, 202.944.2874)
Fair and Just Prosecution (David M. Gossett, 202.973.4200)
Gun Violence Prevention Group (James C. Murray, 303.535.9151)
Law Enforcement Officers (Julie G. Reiser, 202.408.4600)
March For Our Lives Action Fund (Michael J. Dell, 212.715.9100)
Massachusetts, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, and Vermont (Anna Lumelsky, 617.963.2204)
Mexican Activists, Scholars, and Victims (R. Stanton Jones, 202.942.5000)
Social Science, Medical, and Legal Scholars (Amanda Shafer Berman, 202.642.2500)
U.S. Senator Richard Blumenthal, U.S. Representatives Madeleine Dean and Jamie Raskin, and 40 Other Current and Former Members of Congress (Alexandra C. Eynon, 212.607.8174)
In Support of Neither Party
Chamber of Commerce of the United States (Steven A. Engel, 202.261.3369)
G. Antaeus B. Edelsohn (Joan Deborah B. Edelsohn, 415.944.9509)
Professors of Tort Law, Statutory Interpretation, and Firearms Regulation (Timothy M. Haggerty, 212.833.1100)