“[My time at ACA] prepared me very well for the position that I took following that with the State Department, where I then implemented and helped to implement many of the policies that we tried to promote.”
Mexico’s Bold Move Against Gun Companies
September 2022
By Wilma Gandoy Vázquez and Ximena García Hidalgo
Of 193 member states of the United Nations, Mexico has the fifth-largest number of unregistered firearms in civilian hands, behind the United States, India, China, and Pakistan.1 This availability of firearms and the violence it enables have major destructive consequences. In Mexico, guns are the weapon of choice in 70 percent of total homicides and 60 percent of homicides committed against women. Guns are also the main tool in homicides of young people.
Gun violence is so pervasive that it has stagnated the growth in life expectancy of the Mexican population in general and, between 2005 and 2010, reduced the life expectancy of males by about 0.6 years.2 In addition to deaths and injuries, gun violence forces people to leave their homes and even flee to other countries without proper documentation. It limits day-to-day mobility by making people afraid to use public spaces and increases school dropout rates and gender violence. Around 40 percent of the population has heard or seen shootings frequently. Mexicans live most of their lives in fear.
In addition to the human carnage, the price of gun violence is felt economically. It has upended the functioning of major Mexican industries such as agriculture, tourism, and transportation; increased the cost of products and services; decreased the value of real estate; curtailed investment; and changed consumption and savings patterns. According to one estimate, the economic damage caused by violence amounts to 21 percent of the country’s gross domestic product.3 The resources that Mexico allocates to deal with the consequences of gun violence are no longer invested in development projects or social programs. Mexico is swamped by millions of handguns and military-style rifles, compromising its future and the well-being of its people.
As a result, the Mexican government has embarked on a comprehensive strategy to reduce arms trafficking and the violence it produces. In order to include corporate responsibility in its strategy, Mexico took an unprecedented and bold act: it filed a lawsuit against U.S. arms manufacturers and distributors who are responsible for facilitating the trafficking of firearms into Mexican territory through negligent and illegal business practices.
Compared to other countries, Mexico participates modestly in the manufacture and production of firearms, and private gun ownership is significantly restricted. Semi-automatic pistols higher than .380 caliber and all firearms using .223 caliber are prohibited. To receive a one-year gun permit, individuals must pass a background check. There is only one gun store in the country, run by the Mexican army, which sells about 38 guns a day. This means that almost all unregistered firearms in circulation in Mexico entered through illicit trafficking.
Researchers have estimated that at least half a million firearms are trafficked each year from the United States.4 According to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, about 70 percent of the firearms seized at crime scenes in Mexico are traced to the United States.5 Many of these weapons are military grade and wreak remarkable havoc. Between March 2009 and March 2021, criminal groups used firearms trafficked from the United States to kill 25 members of the Mexican army and wound 84 others. Between 2006 and 2021, trafficked firearms were used to kill 415 federal police and National Guard members, in addition to wounding 840 more. In 2019, more than 3.9 million crimes in Mexico were committed with a gun traced to the United States.6 Between 2015 and 2021, at least 140,000 civilians were killed with a firearm in Mexico.
This catastrophic situation is no accident. Through negligent and illicit business practices, the U.S. gun industry has built a permanent infrastructure that provides easy access to firearms for traffickers and, consequently, members of organized crime in Mexico. According to one research report, in 2012, nearly 47 percent of firearm dealers licensed by the U.S. government depended for their economic existence on some amount of demand from Mexico-related weapons trafficking.7 Although this trade takes place in nearly every state in the United States, many gun dealers have established themselves close to the Mexican border to meet the traffickers’ demands. Between 2010 and 2019, the number of gun stores in border states grew by 18 percent, while in nonborder states it increased by 1.8 percent. Currently, 18 percent of all licensed U.S. gun dealers are located in states bordering Mexico.8
A Lucrative Gun Trade
In 2021, specialists who collaborate with the Mexican Ministry of Foreign Affairs estimated the annual value of guns trafficked from the United States at more than $250 million.9 Some journalists and activists believe the problem lies with customs authorities, who overlook the magnitude of the border dynamics and the fact that any policy applied to strengthen border security would be insufficient if the arms industry does not change its business practices, which fuel the arms trafficking phenomenon.
One article posits that the first step in reducing gun trafficking into Mexico lies in focusing on legal sales.10 Guns are very different from other products because they generate their own demand. If more guns are available, insecurity increases and with it the demand for more guns. Therefore, reducing the supply of firearms is a viable policy to reduce demand. That would cause changes in the supply chain that would make it more difficult and more expensive for criminal groups to obtain firearms from the United States. If these criminal groups have less access to firepower, authorities could more feasibly tackle illegal activities such as drug trafficking.
The civil lawsuit filed by the Mexican government has its origin in an unfortunate event. On August 3, 2019, a white supremacist drove to a supermarket in El Paso, Texas, with the objective of exterminating “as many Mexicans as possible.” He killed 23 people and injured 23 others. A subsequent investigation by the Mexican Foreign Affairs Ministry identified a common denominator between the El Paso shooting and violence caused by the availability of firearms in Mexico: gun manufacturers and distributors engaging in negligent and illegal business practices that facilitated their products ending up in the hands of the wrong people.11
These commercial practices include refusing to design firearms with mechanisms that prevent their use by unauthorized persons, thus making them useful and attractive to organized crime. In addition, although their products are supposed to be oriented to the civilian market, gun manufacturers use in their advertising the images, symbols, and language of military combat, characteristics that attract organized crime groups. Finally, their distribution systems allow sales without controls or inventories, thus allowing for thefts and losses, as well as multiple sales and “straw purchases.”12
Through tracing requests from authorities and governmental reports, companies are fully aware that their firearms are disproportionately used in the commission of crimes in Mexico. Although they have the power to prevent the transfer of their products to the criminal market by adopting easy, inexpensive measures that have already been tried, these companies prefer to continue those negligent, illegal commercial practices to maintain their profits.13
After two years of researching, the Mexican government filed suit in U.S. district court in Massachusetts on August 4, 2021. The defendants are familiar names: Smith & Wesson; Barrett; Beretta; Century International Arms; Colt; Glock; Sturm, Ruger & Co; and Witmer Public Safety/Interstate Arms. The suit’s main arguments are that by becoming members of the gun industry, the defendant companies acquired a responsibility to follow all relevant laws related to their activities, as well as to comply with the highest standards of care, such as Mexican gun import laws, U.S. gun export laws, Mexican and U.S. tort laws, and U.S. federal and state gun laws, and that the failure to comply with these responsibilities has caused massive harm to Mexico and its people.
Based on these premises, the Mexican government sued the companies for general negligence because the traffickers were able to obtain high-capacity firearms, ammunition, and magazines as a result of negligent marketing, distribution, and sales practices by firearms producers, distributors, and sellers and also for negligence per se, an exception to the U.S. Protection of Lawful Commerce in Arms Act (PLCAA) that applies when sellers violate any law in the sale of a gun.
The government claims public nuisance based on the evidence that dealers have engaged in “straw sales” and multiple sales, and despite knowing or having to know about this practice, gun producers and distributors have continued to supply guns to these dealers. In addition, Mexico invokes the predicate statute, which operates when a supplier or seller is shown to violate a law related to the sale or marketing of arms and the violation of local laws. The lawsuit further argues that the sale of assault firearms to the public is a violation of the U.S. National Firearms Act, which prohibits automatic firearms because they can be easily converted into assault firearms.14
The Mexican government asserts that the PLCAA, the law granting immunity to the firearms industry, does not apply to its lawsuit because the damages occur outside the United States and because, given the negligent or illegal conduct of the defendants, several exceptions to such procedural immunity are activated in this case.15
The Mexican government asks the court to require the defendants to abate and remedy the public nuisance they have created and to create and implement standards to reasonably monitor and discipline their distribution systems. The suit also demands that gun manufacturers incorporate all reasonably available safety mechanisms into their guns, including devices to prevent use by unauthorized users, and that they fund studies, programs, advertising campaigns, and other events focused on preventing unlawful trafficking of guns. Finally, the suit requests that the defendants take all necessary action to abate the current and future harm that their conduct is causing and would otherwise cause in Mexico. It asks that the court grant damages, civil penalties, restitution, and disgorgement of the defendants' profits to the Mexican government.16
Gun Industry Dismissal Request
The case marks the first time that a foreign country has sued members of the firearms industry in a U.S. court. The companies filed their responses to the lawsuit on November 22, 2021. By means of a joint memorandum of law and individual memorandums, they ask the court to grant their motion to dismiss the complaint. Their main arguments are that the PLCAA grants them immunity from civil suits, that the Mexican government does not have standing to sue the companies, and that the companies are not subject to the court's jurisdiction because they do not have sufficient ties to Massachusetts.
In addition, the companies assert that there are too many intermediate steps between the damage in Mexico cited in the lawsuit and the actions of the companies, that the companies have no legal obligation to protect Mexico from the criminal misuse of their products in Mexican territory, and that the Mexican government is responsible for preventing the damages it claims. The defendants’ main objective in filing a motion to dismiss the complaint is to prevent the lawsuit from moving forward and reaching the discovery stage.
In January 2022, the Mexican government filed its response to the defendants' motion to dismiss the complaint. It argues that because the injury occurs in Mexican territory, the substantive law that applies to this lawsuit is Mexican law and that the immunities granted by the PLCAA do not apply in this case. The government states that the complaint adequately describes how the companies violate their legal obligations and thereby create public nuisance in Mexico.
The government argues that neither international law nor custom preclude it from suing the companies in U.S. courts, that the district court in Massachusetts can hear the case because the defendants participate in the economic life and carry out business transactions in the state that result in damages in Mexico, that the progress of the case in the district court is not particularly onerous or unusual for the companies, and that what is being claimed are negligent and illegal business practices, not the criminal use of the firearms manufactured or distributed by the companies. In addition, the government submitted a report on Mexican tort law and a report by expert economists that calculated the number of firearms produced or sold in Massachusetts and trafficked into Mexico. According to the latter document, between 2011 and 2020, the total number of guns from defendant manufacturing companies linked to Massachusetts and trafficked to Mexico ranged from 68,552 to 250,214.17
In support of the lawsuit, groups from various countries submitted amicus curiae briefs. Attorneys general from 14 U.S. states explain that when the PLCAA was drafted, the U.S. Congress did not make the gun industry immune in cases in which its own conduct violated laws regulating the sale and marketing of guns. They also say that the Mexican government plausibly alleged that the companies' business practices violate the Connecticut Unfair Trade Practices Act and the Massachusetts Consumer Protection Act. District attorneys from 27 U.S. counties assert that careless gun sales and the gun trafficking to Mexico facilitated by these companies are having a direct impact on their communities by promoting drug trafficking and violence.
In another brief, 16 law professors from U.S. universities agree that the immunity granted by the PLCAA to members of the arms industry does not apply in this case and that international law recognizes the authority of a state to apply its tort law to conduct outside its territory that causes it substantial harm. Professors of international law from European universities also weigh in, asserting that public international law and conflict of law rules do not prohibit foreign law from being applied in a tort liability case against U.S. companies for damages they cause abroad.
Several leading U.S. gun violence prevention organizations also make a case that Massachusetts law allows Mexico’s lawsuit to be heard. The governments of Belize and Antigua and Barbuda, as well as SEHLAC, an international organization focused on security, describe the gun violence situation afflicting Latin America and the Caribbean and emphasize that the remedies sought by Mexico are simple measures that could drastically reduce gun violence in the region. Finally, Mexican academics, activists, victims, and experts vividly describe the ravages of gun trafficking in Mexico.18
On March 14, the companies responded to the court filings, asking that Mexico's request for discovery be denied. The Mexican government asked the court for authorization to file a sur-reply, which points out that the companies rejected the application of Mexican law without offering a legal analysis as to which tort law should be used to analyze this case. The government asserts that legal practice and international law establish that the applicable law is that of the place where the damage occurs and that the application of Mexican law in tort liability matters is not inconsistent with any public policy of Massachusetts or the United States.
On April 12, the parties presented oral arguments before Chief Judge Dennis Saylor through a videoconference. The hearing did not discuss substantive issues of the case, but the arguments related to the standing of the Mexican government, the scope of the PLCAA, and the jurisdiction of the U.S. district court. The judge's questions helped clarify that the legal arguments in the lawsuit are specific to the Mexican case. They also clarified that the Mexican government did not sue the companies because firearms were used to commit crimes, but rather the lawsuit is about the defendants knowing that their products are being trafficked to criminal groups in Mexico and making decisions that facilitate the trafficking.
On June 9, the Mexican government filed a notice of supplemental authority to the court, stemming from developments in National Shooting Sports Foundation v. James. In that case, the gun industry representative challenged a New York statute making it possible to hold gun manufacturers liable for knowingly or recklessly creating or contributing to endangering residents' public safety. The notice points out that several of the foundation’s arguments related to extraterritoriality and applicability of the law, as well as the scope of the PLCAA and separation of powers, are in line with the Mexican government's positions in its lawsuit. Four months after the hearing, the judge has not issued a decision. Whichever party falls short is expected to appeal, and the litigation will continue in the U.S. Court of Appeals for the First Circuit.
A Comprehensive Strategy
In parallel to the lawsuit, Mexico has continued its strategy to combat arms trafficking. At the national level, it created the National Customs Agency, and all civilian customs personnel will be replaced by members of the Ministry of National Defense by 2023. At the bilateral level, Mexico signed the Bicentennial Agreement with the United States, which gives special attention to achieving tangible results in the fight against arms trafficking. It also has approached the European Union to invite its members to take responsibility for their firearms companies operating in the United States, emphasizing their duty to protect human rights as EU laws require.
At the international level, Mexico has taken actions in the most important mechanisms and institutions that help control and regulate firearms, such as the Arms Trade Treaty, the Firearms Working Group of the Conference of States Parties to the Convention Against Transnational Organized Crime, and the Inter-American Convention Against the Illicit Manufacture of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. In the UN Security Council, Mexico led the adoption of Resolution 2616, which recognizes that the diversion of small arms and light weapons is a threat to peace and security.19 In the UN Commission on Narcotic Drugs, Mexico was central to the approval of a resolution that recognizes the link between arms trafficking and drug trafficking.
Through novel arguments and new interpretations of the laws regulating the gun industry, the civil lawsuit seeks to include one of the most powerful actors in the solution to gun violence. Companies have the ability to define the design of their products and the way they advertise, distribute, and sell them. They also have the most extensive and updated information on purchasing patterns to identify transfers to the illicit market. Because of this, more initiatives are emerging in the United States to hold the firearms industry accountable, such as California’s AB1594 law, New York’s S.7196/A.6762 law, and the establishment of an office in New Jersey to bring legal action against gun manufacturers, dealers, and sellers.
In this chaotic 21st century, the COVID-19 pandemic has demonstrated the importance of the role of the state in protecting the lives of its population. With this civil lawsuit against gun companies that facilitate gun trafficking into its territory, the Mexican government is attempting to fulfill its legal and moral obligation to defend its people. This bold and innovative action has the potential to save thousands of lives and change the landscape of gun violence across the Americas.
ENDNOTES
1. Small Arms Survey, “Civilian Firearms Holdings, 2017,” n.d., https://www.smallarmssurvey.org/sites/default/files/resources/SAS-BP-Civilian-held-firearms-annexe.pdf.
2. José Manuel Aburto et al., “Homicides in Mexico Reversed Life Expectancy Gains for Men and Slowed Them for Women, 2000–10,” Health Affairs, Vol. 35, No. 1 (January 2016): 88-95.
3. Institute for Economics & Peace, “Mexico Peace Index 2022,” IEP Report, No. 85 (May 2022), https://www.visionofhumanity.org/wp-content/uploads/2022/05/ENG-MPI-2022-web.pdf.
4. On August 4, 2022, the Mexican Ministry of Foreign Affairs published a repository with relevant documents and articles on the litigation. For documents submitted to the court by Mexico, including the complaint, see Gobierno de México, “SRE - Acervo Histórico Diplomático,” August 3, 2022, https://portales.sre.gob.mx/acervo/litigio-del-gobierno-de-mexico/379.
5. U.S. Government Accountability Office, “U.S. Efforts to Combat Firearms Trafficking to Mexico Have Improved, but Some Collaboration Challenges Remain,” GAO-16-223, January 2016, https://www.gao.gov/assets/gao-16-223.pdf; U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, “Firearms Trace Data: Mexico - 2015-2020,” November 16, 2021, https://www.atf.gov/resource-center/firearms-trace-data-mexico-2015-2020.
6. Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., et al., No. 21-11269 (Dist. Ct. Mass., August 4, 2021).
7. Topher McDougal et al., “The Way of the Gun: Estimating Firearms Traffic Across the U.S.-Mexico Border,” University of San Diego Trans-Border Institute and Igarapé Institute, March 2013, p. 2, https://catcher.sandiego.edu/items/peacestudies/way_of_the_gun.pdf.
8. Bureau of Alcohol, Tobacco, Firearms and Explosives, “Federal Firearms Listings,” https://www.atf.gov/firearms/listing-federal-firearms-licensees.
9. Estados Unidos Mexicanos v. Smith & Wesson Brands.
10. Robert Muggah and Topher McDougal, “Why a ‘Great Wall’ Won’t Stop the Cross-Border Gun Trade,” Americas Quarterly, April 26, 2017, https://americasquarterly.org/fulltextarticle/why-a-great-wall-wont-stop-the-cross-border-gun-trade/.
11. For further information on the Mexican government’s reasoning behind the lawsuit, see Alejandro Celorio, “Mexico Is Tired of U.S. Guns Bloodying Our Streets. That’s Why We Are Suing Manufacturers,” The Washington Post, August 14, 2021.
12. Estados Unidos Mexicanos v. Smith & Wesson Brands.
13. Several of these measures were part of an agreement between Smith & Wesson and the Clinton administration in March 2000. Office of the Press Secretary, The White House, “Clinton Administration Reaches Historic Agreement With Smith and Wesson,” March 17, 2000.
14. Estados Unidos Mexicanos v. Smith & Wesson Brands.
15. For an in-depth explanation on the Mexican government’s position on the PLCAA, see Jindan-Karena Mann, “Mexico v. Smith & Wesson: How Should US Courts Approach the Issue of Proximate Cause in Tort Cases Against Gun Manufacturers?” Rethinking Slic, May 26, 2022, https://rethinkingslic.org/blog/tort-law/153-mexico-v-smith-wesson-how-should-us-courts-approach-the-issue-of-proximate-cause-in-tort-cases-against-gun-manufacturers.
16. Estados Unidos Mexicanos v. Smith & Wesson Brands.
17. See Gobierno de México, “SRE - Acervo Histórico Diplomático.”
18. For the amicus curiae briefs, see Gobierno de México, “SRE - Acervo Histórico Diplomático.”
19. UN Security Council, S/RES/2616, December 22, 2021.
Wilma Gandoy Vázquez, a member of the Mexican Foreign Service, and Ximena García Hidalgo, an international affairs specialist, are members of the team in the Head Legal Advisor’s Office at the Mexican Ministry of Foreign Affairs that is working on the government’s lawsuit against firearms companies in the United States. The authors’ opinions are their own and may not reflect the position of the government of Mexico.