By Jeff Abramson
The Mexican government took a novel approach to curtailing illegal gun trafficking into its country by filing suit against U.S. gun manufacturers and distributors in a Massachusetts federal district court.
In the unusual lawsuit filed in August, Mexico alleged that a number of major firearms manufacturers and wholesalers “design, market, distribute, and sell guns in ways they know routinely arm the drug cartels in Mexico.” It said the named companies sell about 340,000 of an estimated half million guns that illegally flow each year from “Massachusetts and other U.S. states to criminals south of the border.”
The suit draws particular attention to semiautomatic firearms, also known as assault weapons, that can easily be converted to fully automatic versions and are “weapons of choice” for drug cartels. Mexico calls for a range of measures to force the companies to curtail illegal arms flows and is reportedly seeking at least $10 billion in damages, although that amount is not explicitly enumerated in the lawsuit.
The case relies to a large degree on U.S. law, with Mexico arguing that it “does not challenge or question the law, policy, or actions of the United States” but instead “seeks to hold accountable and stop the reckless actions of private companies that foreseeably send their guns into Mexico.” Efforts to hold U.S. firearms manufacturers liable for the misuse of their products are made difficult by the U.S. Protection of Lawful Commerce in Arms Act (PLCAA), which provides U.S. manufacturers with special immunity from certain liability. Mexico contends that the PLCAA only extends to harm within the United States and does not shield the U.S. manufacturers in this case.
How the Biden administration reacts to this case could be significant. Although the U.S. government is not named in the suit, the administration has called for Congress to repeal the PLCAA and championed a domestic assault weapons ban.
The case also may draw fresh attention to a Trump-era rule change that removed export oversight of semiautomatic assault weapons from the State Department, which administers the U.S. Munitions List, and transferred it to the Commerce Department, which oversees the Commerce Control List. The switch means the process is less transparent because Congress does not receive notifications of potential sales. (See ACT, March 2020.) President Joe Biden promised during his campaign to reverse this change, but his administration has not yet acted.
Notably, the lawsuit does not address the legal trade in firearms between the United States and Mexico, which is conducted through the Mexican military. Firearms ownership in Mexico is tightly regulated by the government, with just one centralized gun store issuing fewer than 50 licenses per year, according to the suit.
But the Mexican military has been implicated in numerous civilian deaths in Mexico, either directly or through the weapons it transfers to police forces. Despite this, the Biden administration notified Congress in July of a potential sale of nearly $5.5 millionworth of Sig Sauer fully automatic rifles to the Mexican navy and marines.
Sig Sauer is not named in the lawsuit, but is one of a number of German companies that arms trade watchers suggest has established production facilities in the United States in order to legally export weapons to Latin American countries under U.S. contracts that would not be approved if the sales had originated in Germany.
Other Lawsuits on U.S. Arms Transfers
Across the globe, there is a growing trend of legal challenges to the arms trade, including a number of cases in U.S. courts. The lawsuit filed by Mexico is unique in that the plaintiff is a foreign country and it seeks to address illicit arms trade rather than that approved by the U.S. government, but two other cases, recently filed in U.S. district court in Washington, are aimed at stopping weapons from being transferred from the United States.
Nigeria. In late July, the Indigenous People of Biafra filed a case against the U.S. Defense and State departments seeking a halt to future transfers of Super Tucano aircraft to Nigeria and the return of those already transferred, citing violations of the so-called Leahy Law, which prohibits transfers to military units that have been credibly accused of gross human rights violations. The sale of 12 aircraft was put on hold at the end of the Obama administration, but moved forward by the Trump administration in 2017 (See ACT, September 2017), with the first six aircraft delivered this summer. The case is in the early stages, and it is unclear whether it will be heard. Media reports say that members of Congress, citing human rights concerns, have quietly put holds on the sales of additional attack helicopters after being informally notified of possible sales by the State Department.
United Arab Emirates. At the end of 2020, the New York Center for Foreign Policy Affairs, now joined by others, including individuals harmed by the conflict in Libya, filed a case against the State Department challenging $23 billion in arms sales to the United Arab Emirates, citing violations of the Arms Export Control Act and the Administrative Procedure Act. Following a motion to dismiss by the State Department, the court has yet to rule whether the case will proceed. The Biden administration has indicated it is working to go ahead with the sales in the coming years. (See ACT, May 2021.)