https://reason.com/volokh/2025/03/09/second-amendment-roundup-court-seems-disposed-to-rule-for-sw-and-against-mexico/
Second Amendment Roundup: Court Seems Disposed to Rule for S&W and
Against Mexico
The Court should settle the proximate-cause issue, not just aiding and >abetting.
Stephen Halbrook | 3.9.2025 9:44 PM
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
Washington, D.C.); Estados Unidos Mexicanos v. Diamondback Incorporate,
No. 22-472 (D. Arizona) (lawsuit filed by Mexican government against
firearms dealers); City of Rochester v. Smith & Wesson Brands, Inc., No. >23-6061 (W.D.N.Y.) (lawsuit filed by City of Rochester seeking to hold
more than two dozen members of firearms industry liable for city's gun >violence); Cluney v. Brownells, Inc., No. 24-207 (D. Maine) (lawsuit
seeking to hold members of the firearms industry liable for domestic
violence incident); Mitchell v. River City Firearms, Inc., No.
24-CI-000518 (Jefferson Circuit Court, Kentucky) (lawsuit seeking to
hold members of firearms industry liable for mass shooting in Louisville).
Relatively few of these cases involve questions of aiding and abetting >liability under federal law. Instead, typically the plaintiffs in these
cases rely on a state consumer protection law or some other state
statute rather than the federal aiding and abetting statute as the basis
for alleging unlawful conduct by the industry. And many of these state
laws are recently-enacted statutes by the usual suspect anti-gun states >seeking to circumvent PLCAA's protections. The common denominator that >unites these cases is not the alleged statutory violation but the theory
of causation, under which the plaintiffs claim that criminal conduct by
third parties is attributable to the sellers of firearms.
The First Circuit ruled in favor of Mexico on the proximate cause issue
with the following bizarre analogy:
Imagine that a U.S. company sent a mercenary unit of combat troops to
attack people in Mexico City. Such an attack would directly cause Mexico >itself the expense of paying soldiers to defend the city. Proximate
cause would be quite clear. So, too, here, where the defendants are
alleged to have armed the attackers for their continuing assaults.
This departs sharply from decisions of most other courts that have
confronted this issue and black letter principles of tort law. An
opinion joined by then-Judge Alito, City of Philadelphia v. Beretta USA
(3d Cir. 2002) held that the causal chain "from the manufacturer to >Philadelphia streets" was too "long and tortuous." With limited
exceptions, a third party's criminal conduct ordinarily breaks the
causal chain for purposes of proximate cause.
If not corrected, the First Circuit's reasoning will be embraced by
anti-gun activists in lawsuits going forward. This decision has already >created disarray on the issue of proximate cause in the lower courts,
and it is certain to metastasize and spread until the Supreme Court >intervenes.
As Congress recognized when it passed the PLCAA, burdening the firearms >industry with lawsuits of this sort inhibits the exercise of Second
Amendment rights. It also did so to ensure a robust domestic firearms >industry, which is important for America's military and police officers.
This is an important issue that the Court ought to decide sooner rather
than later.
The Court should take this opportunity to clarify that the standard for >proximate cause under PLCAA is consistent with the standard for
proximate cause that the Court has used for other federal statutes,
including RICO. As Chief Justice Roberts wrote in Hemi Group, LLC v.
City of New York (2010), if multiple steps stand in between the conduct
and the harm, then the connection becomes too "remote," "contingent,"
and "indirect" to satisfy basic proximate cause. This standard requires
a direct connection between the defendant's conduct and the plaintiff's >injury. A causal chain with multiple steps – especially intervening
steps that involve criminal conduct by third parties – will not suffice.
Questioning during the oral argument exhibited the utter implausibility
of Mexico's case. Justice Thomas asked Mexico counsel Catherine Stetson >whether ATF prosecuted or revoked the licenses of any dealers for the
alleged straw sales with which the manufacturers connived. Ms. Stetson >replied that ATF doesn't have the resources to monitor every dealer.
Yet based on a newspaper article, Mexico had argued that Lone Wolf
Trading Co. was the epitome of the "rogue" dealer. If true, ATF would
have taken action. Yet Lone Wolf remains in business today.
Mexico argues that manufacturers are on notice of dealers who conduct
straw sales and that they continue to supply such dealers, which is the >proximate cause of harm to Mexico. As Ms. Stetson claimed, "Trace
requests from ATF and other agencies alert defendants that guns they
sell to specific distributors and dealers are being recovered at crime >scenes." That expressed utter ignorance of how trace requests work. A
trace request begins with the manufacturer, whose name and serial number
are engraved on a firearm. A manufacturer like S&W would inform ATF of
the distributer to which it transferred the firearm. S&W would have no >knowledge of which dealers the distributer transferred the firearm to,
not to mention the reason for the trace request.
As Justices Jackson, Kagan, and Barrett all pointed out, Mexico didn't
sue or even identify any specific dealers who conducted straw sales and
were in the chain of proximate cause of harm to Mexico.
Not to mention that a trace request does not mean that a firearm was >"recovered at a crime scene." Given Mexico's stringent firearm
prohibitions, firearms are regularly seized from ordinary citizens whose >"papers are not in order." Moreover, Congress has declared by law that
"Law enforcement agencies may request firearms traces for any reason,
and those reasons are not necessarily reported to the Federal
Government. Not all firearms used in crime are traced and not all
firearms traced are used in crime."
Perhaps the most ridiculous claim to show proximate cause was that the >manufacturers design firearms to appeal to the cartels. As Chief
Justice Roberts characterized the claim, "it [the firearm] looks like a >military weapon and it has an American flag" or it "has Zapata's quote
about better to die on your feet than live on your knees." Such things
"are not illegal in any way" and appeal to "people who want the
experience of shooting a particular type of gun because they find it
more enjoyable than using a BB gun."
Ms. Stetson pushed back, claiming that the Colt "Emiliano Zapata 1911"
pistol "target[ed] the Mexican market, including the cartels." In fact, >Zapata was a Mexican hero who fought against successive dictatorships,
and Colt's pistol with intricate engravings is something even a Gringo
would be proud to own. And that's Mexico's case for Colt's marketing
being the proximate cause of cartel violence?
Several Justices commented on how Mexico's version of proximate cause
could destroy any number of industries. If Budweiser is on notice that >extraordinary sales of beer take place in a college town, that is the >proximate cause of underage drinking and the damage it causes. Makers
of baseball bats and knives are aware that some of their products will
be used in assaults and murders for which they are thus responsible.
Those are more reasons why the Court should resolve the proximate-cause
issue in this case.
Justice Jackson in particular elaborated at length that in enacting
PLCAA, "Congress [was] protecting its own prerogative to be the one to >regulate this industry, … and the statute itself says that … we're
worried that tort suits are an attempt to use the judicial branch to >circumvent the legislative branch of government." She referred to
PLCAA's term "qualified civil liability action" as meaning "you can't
bring in court … a civil action resulting from the criminal or unlawful >misuse of a qualified product by the person of a third party."
At bottom, even if the Supreme Court could resolve this case by finding
that Mexico has not stated a claim for aiding-and-abetting liability, it >should also go further and find that its allegations do not suffice to >establish proximate cause. That will facilitate the resolution of
numerous other cases under PLCAA, which the Court will otherwise have to >resolve in the future. It will also discourage frivolous suits against >American industry in general based on an overly-expansive version of >proximate cause.
For more on the case, see my post from 10/22/24. For background, see my
2004 Chapman Law Review article from when PLCAA was pending in Congress
On Sun, 9 Mar 2025 23:18:38 -0700, Michael Ejercito
<MEjercit@HotMail.com> wrote:
https://reason.com/volokh/2025/03/09/second-amendment-roundup-court-seems-disposed-to-rule-for-sw-and-against-mexico/
Second Amendment Roundup: Court Seems Disposed to Rule for S&W and
Against Mexico
The Court should settle the proximate-cause issue, not just aiding and
abetting.
Stephen Halbrook | 3.9.2025 9:44 PM
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
Washington, D.C.); Estados Unidos Mexicanos v. Diamondback Incorporate,
No. 22-472 (D. Arizona) (lawsuit filed by Mexican government against
firearms dealers); City of Rochester v. Smith & Wesson Brands, Inc., No.
23-6061 (W.D.N.Y.) (lawsuit filed by City of Rochester seeking to hold
more than two dozen members of firearms industry liable for city's gun
violence); Cluney v. Brownells, Inc., No. 24-207 (D. Maine) (lawsuit
seeking to hold members of the firearms industry liable for domestic
violence incident); Mitchell v. River City Firearms, Inc., No.
24-CI-000518 (Jefferson Circuit Court, Kentucky) (lawsuit seeking to
hold members of firearms industry liable for mass shooting in Louisville). >>
Relatively few of these cases involve questions of aiding and abetting
liability under federal law. Instead, typically the plaintiffs in these
cases rely on a state consumer protection law or some other state
statute rather than the federal aiding and abetting statute as the basis
for alleging unlawful conduct by the industry. And many of these state
laws are recently-enacted statutes by the usual suspect anti-gun states
seeking to circumvent PLCAA's protections. The common denominator that
unites these cases is not the alleged statutory violation but the theory
of causation, under which the plaintiffs claim that criminal conduct by
third parties is attributable to the sellers of firearms.
The First Circuit ruled in favor of Mexico on the proximate cause issue
with the following bizarre analogy:
Imagine that a U.S. company sent a mercenary unit of combat troops to
attack people in Mexico City. Such an attack would directly cause Mexico
itself the expense of paying soldiers to defend the city. Proximate
cause would be quite clear. So, too, here, where the defendants are
alleged to have armed the attackers for their continuing assaults.
This departs sharply from decisions of most other courts that have
confronted this issue and black letter principles of tort law. An
opinion joined by then-Judge Alito, City of Philadelphia v. Beretta USA
(3d Cir. 2002) held that the causal chain "from the manufacturer to
Philadelphia streets" was too "long and tortuous." With limited
exceptions, a third party's criminal conduct ordinarily breaks the
causal chain for purposes of proximate cause.
If not corrected, the First Circuit's reasoning will be embraced by
anti-gun activists in lawsuits going forward. This decision has already
created disarray on the issue of proximate cause in the lower courts,
and it is certain to metastasize and spread until the Supreme Court
intervenes.
As Congress recognized when it passed the PLCAA, burdening the firearms
industry with lawsuits of this sort inhibits the exercise of Second
Amendment rights. It also did so to ensure a robust domestic firearms
industry, which is important for America's military and police officers.
This is an important issue that the Court ought to decide sooner rather
than later.
The Court should take this opportunity to clarify that the standard for
proximate cause under PLCAA is consistent with the standard for
proximate cause that the Court has used for other federal statutes,
including RICO. As Chief Justice Roberts wrote in Hemi Group, LLC v.
City of New York (2010), if multiple steps stand in between the conduct
and the harm, then the connection becomes too "remote," "contingent,"
and "indirect" to satisfy basic proximate cause. This standard requires
a direct connection between the defendant's conduct and the plaintiff's
injury. A causal chain with multiple steps – especially intervening
steps that involve criminal conduct by third parties – will not suffice. >>
Questioning during the oral argument exhibited the utter implausibility
of Mexico's case. Justice Thomas asked Mexico counsel Catherine Stetson
whether ATF prosecuted or revoked the licenses of any dealers for the
alleged straw sales with which the manufacturers connived. Ms. Stetson
replied that ATF doesn't have the resources to monitor every dealer.
Yet based on a newspaper article, Mexico had argued that Lone Wolf
Trading Co. was the epitome of the "rogue" dealer. If true, ATF would
have taken action. Yet Lone Wolf remains in business today.
Mexico argues that manufacturers are on notice of dealers who conduct
straw sales and that they continue to supply such dealers, which is the
proximate cause of harm to Mexico. As Ms. Stetson claimed, "Trace
requests from ATF and other agencies alert defendants that guns they
sell to specific distributors and dealers are being recovered at crime
scenes." That expressed utter ignorance of how trace requests work. A
trace request begins with the manufacturer, whose name and serial number
are engraved on a firearm. A manufacturer like S&W would inform ATF of
the distributer to which it transferred the firearm. S&W would have no
knowledge of which dealers the distributer transferred the firearm to,
not to mention the reason for the trace request.
As Justices Jackson, Kagan, and Barrett all pointed out, Mexico didn't
sue or even identify any specific dealers who conducted straw sales and
were in the chain of proximate cause of harm to Mexico.
Not to mention that a trace request does not mean that a firearm was
"recovered at a crime scene." Given Mexico's stringent firearm
prohibitions, firearms are regularly seized from ordinary citizens whose
"papers are not in order." Moreover, Congress has declared by law that
"Law enforcement agencies may request firearms traces for any reason,
and those reasons are not necessarily reported to the Federal
Government. Not all firearms used in crime are traced and not all
firearms traced are used in crime."
Perhaps the most ridiculous claim to show proximate cause was that the
manufacturers design firearms to appeal to the cartels. As Chief
Justice Roberts characterized the claim, "it [the firearm] looks like a
military weapon and it has an American flag" or it "has Zapata's quote
about better to die on your feet than live on your knees." Such things
"are not illegal in any way" and appeal to "people who want the
experience of shooting a particular type of gun because they find it
more enjoyable than using a BB gun."
Ms. Stetson pushed back, claiming that the Colt "Emiliano Zapata 1911"
pistol "target[ed] the Mexican market, including the cartels." In fact,
Zapata was a Mexican hero who fought against successive dictatorships,
and Colt's pistol with intricate engravings is something even a Gringo
would be proud to own. And that's Mexico's case for Colt's marketing
being the proximate cause of cartel violence?
Several Justices commented on how Mexico's version of proximate cause
could destroy any number of industries. If Budweiser is on notice that
extraordinary sales of beer take place in a college town, that is the
proximate cause of underage drinking and the damage it causes. Makers
of baseball bats and knives are aware that some of their products will
be used in assaults and murders for which they are thus responsible.
Those are more reasons why the Court should resolve the proximate-cause
issue in this case.
Justice Jackson in particular elaborated at length that in enacting
PLCAA, "Congress [was] protecting its own prerogative to be the one to
regulate this industry, … and the statute itself says that … we're
worried that tort suits are an attempt to use the judicial branch to
circumvent the legislative branch of government." She referred to
PLCAA's term "qualified civil liability action" as meaning "you can't
bring in court … a civil action resulting from the criminal or unlawful
misuse of a qualified product by the person of a third party."
At bottom, even if the Supreme Court could resolve this case by finding
that Mexico has not stated a claim for aiding-and-abetting liability, it
should also go further and find that its allegations do not suffice to
establish proximate cause. That will facilitate the resolution of
numerous other cases under PLCAA, which the Court will otherwise have to
resolve in the future. It will also discourage frivolous suits against
American industry in general based on an overly-expansive version of
proximate cause.
For more on the case, see my post from 10/22/24. For background, see my
2004 Chapman Law Review article from when PLCAA was pending in Congress
The Bill of Rights have nothing to do with you. These are protections afforded to Americans, so please MYOB
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