By Timothy D. Lytton
The government of Mexico is suing U.S. gun-makers for their role in facilitating cross-border gun trafficking that has supercharged violent crime in Mexico.
The lawsuit seeks US$10 billion in damages and a court order to force the companies named in the lawsuit – including Smith & Wesson, Colt, Glock, Beretta and Ruger – to change the way they do business. In January, a federal appeals court in Boston decided that the industry’s immunity shield, which so far has protected gun-makers from civil liability, does not apply to Mexico’s lawsuit.
As a legal scholar who has analyzed lawsuits against the gun industry for more than 25 years, I believe this decision to allow Mexico’s lawsuit to proceed could be a game changer. To understand why, let’s begin with some background about the federal law that protects the gun industry from civil lawsuits.
Gun industry immunity
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which prohibits lawsuits against firearm manufacturers and sellers for injuries arising from criminal misuse of a gun.
Importantly, there are limits to this immunity shield. For example, it doesn’t protect a manufacturer or seller who “knowingly violated a State or Federal statute applicable to the sale or marketing” of a firearm. Mexico’s lawsuit alleges that U.S. gun-makers aided and abetted illegal weapons sales to gun traffickers in violation of federal law.
Mexico’s allegations
Mexico claims that U.S. gun-makers engaged in “deliberate efforts to create and maintain an illegal market for their weapons in Mexico.”
According to the lawsuit, the manufacturers intentionally design their weapons to be attractive to criminal organizations in Mexico by including features such as easy conversion to fully automatic fire, compatibility with high-capacity magazines and removable serial numbers.
Mexico also points to industry marketing that promises buyers a tactical military experience for civilians. And Mexico alleges that manufacturers distribute their products to dealers whom they know serve as transit points for illegal gunrunning through illegal straw sales, unlicensed sales at gun shows and online, and off-book sales disguised as inventory theft.
In short, Mexico claims that illegal gun trafficking isn’t just an unwanted byproduct of the industry’s design choices, marketing campaigns and distribution practices. Instead, according to the lawsuit, feeding demand for illegal weapons is central to the industry’s business model.
In response, the gun-makers insist that Mexico’s attempt to hold them legally responsible for the criminal activity of others is precisely the type of lawsuit that the federal immunity shield was designed to block. They argue that merely selling a product that someone later uses in a crime does not amount to a violation of federal law that would deprive a manufacturer of immunity. Additionally, the gun-makers assert that, even if Mexico’s lawsuit were not barred by the immunity law, they have no legal duty to prevent criminal violence that occurs outside the U.S.
The next legal steps
In January 2024, a federal appeals court in Massachusetts decided that Mexico’s allegations, if true, would deprive the gun-makers of immunity, and it sent the case back to trial court. Mexico now needs to produce evidence to prove its allegations that the industry is not only aware of but actively facilitates illegal gun trafficking.
Additionally, to win, Mexico will need to convince a Boston jury that the manufacturers’ design choices, marketing campaigns and distribution practices are closely enough connected to street crime in Mexico to consider the companies responsible for the problem. This is known as “proximate cause” in the law.
For their part, the gun-makers have asked the trial judge to put the case on hold while they pursue an appeal to the U.S. Supreme Court. However, the Supreme Court has been reluctant to weigh in on gun industry cases until they have reached their conclusion in the lower courts, where most of them are dismissed and a few have settled.
High stakes for the industry
If Mexico does win at trial, its demand for $10 billion in damages could drive several of the nation’s largest firearm manufacturers into bankruptcy. Even if the case were to settle for much less, a victory by Mexico would provide a template for a wave of future lawsuits that could change the way the gun industry operates.
Similar theories about dangerous product designs, irresponsible marketing and reckless distribution practices in opioid litigation have transformed the pharmaceutical industry. Civil lawsuits have forced the drugmakers to take public responsibility for a nationwide health crisis, overhaul the way they do business and pay billions of dollars in judgments and settlements.
Mexico’s lawsuit holds out the prospect that the gun industry could be next.
Timothy D. Lytton is Regents’ Professor and Professor of Law at Georgia State University.
Mary says
Fabulous idea, now deport all the 40 million illegal mexicans and all their anchor kids.
Deborah Coffey says
A good news article. Go, Mexico! I hope you can take these merchants of death down. They are destroying America, as well, and we are apparently too weak and greedy to stop them and all the killing they promote.
TR says
This is rich. suing the American gun manufactures because of the rise in gun violence in Mexico. How are the guns getting into Mexico in the first place that are then trafficked back into the USA through the cartel? How about this, the USA will give you one illegal Mexican immigrant for one gun the Mexican Government has from an American gun manufacturer? Again, The gun is not the problem, the people using them are. A gun of any kind will lay on a surface (table, counter, floor etc.) until someone picks it up and pulls the trigger. I can not think of any manufactured product that has caused damage or death has done it on it’s own. It was always done by the human operating the product. Like a gun, car, knife, frying pan, etc.
Hippy says
Give them the money back they paid to build the wall. Call it even….
DAve says
Oh how soon we forget, the 2009-2011 scheme known as ‘Fast and Furious. What a mess this turned out to be.
Pogo says
@Slides back, cylinders open — make the line safe (and honest, complete, and true)
Apparently, the entire 8 years of the G.W. Bush administration was a single moment of lost time: “Oh how soon we forget, the 2009-2011 scheme known as ‘Fast and Furious. What a mess this turned out to be.”
“AP Exclusive: Second Bush-era gun-smuggling probe…”
“…Earlier this month, it was disclosed that the gun-walking tactic didn’t begin under Obama, but was also used in 2006 under his predecessor, George W. Bush. The probe, Operation Wide Receiver, was carried out by ATF’s Tucson, Ariz., office and resulted in hundreds of guns being transferred to suspected arms traffickers…”
https://www.foxnews.com/us/ap-exclusive-second-bush-era-gun-smuggling-probe
JOSEPH HEMPFLING says
QUESTION; is the liquor industry next when there is a DWI ??
Deborah Coffey says
Do you want food on your table or not?
Deborah Coffey says
Except, if the guns weren’t out there, the “people” wouldn’t be using them. Logic 101.
DaleL says
Mexico claims gun manufacturers/dealers are marketing guns to the cartels/criminals in Mexico. If that were true, I would expect that the major guns stores near the Mexican border would offer a different selection of firearms than those located in Midwest America.
I went to Vance Outdoors website. Vance is a major gun store in Columbus, Ohio. I found that Vance had slightly over fourteen hundred different bolt action rifles for sale. Vance had just under one thousand semi-automatic rifles.
I then went to Freedom Weapons, an El Paso gun store. Their website had just 60 semi-automatics listed, but these were not individual guns. Rather, it was a list of gun models that they sold. Freedom Weapons had just a single bolt action rifle listed, a sniper type military style rifle. It was out of stock.
In conclusion, in my random sample of two gun stores, I found the major Midwest store had more bolt action rifles in inventory than semi-automatic rifles. I found the El Paso gun store to have exclusively semi-automatic rifles. I think Mexico has a case.
R.S. says
Perfect reply!!! Finally the right move on the part of Mexico.
TR says
Oh so how do you think the honest people could defend themselves against the criminals that get their guns on the black market or steal them? Ever hear of the 2nd amendment? I guess we should ask a ribber to sit down and talk it out. Let me know how that works for you?
TR says
Oh so how do you think the honest people could defend themselves against the criminals that get their guns on the black market or steal them? Ever hear of the 2nd amendment? I guess we should ask a robber to sit down and talk it out. Let me know how that works for you?
Bee says
Talk to your boy George Bush and Alberto Gonzalez. “OPERATION WIDE RECEIVER”
https://en.wikipedia.org/wiki/ATF_gunwalking_scandal
jake says
Why don’t you talk to Barak Obama and Eric Holder.
“OPERATION FAST AND FURIOUS”
Operation Fast and Furious was a high-profile scandal that ensnared former President Barack Obama’s Justice Department, the ATF, and ex-Attorney General Eric Holder. The imbroglio saw federal agents allow more than 2,000 firearms to be sold illegally to known or suspected straw purchasers.
Sherry says
@mary. . . you are completely heartless and “should” be very ashamed. There but for the grace of our good fortune of being born with white skin in the USA goes each one of us. What would Jesus say about this tragic situation for human kind?
Sherry says
Good For Mexico! Not to confuse anyone with facts. . . but, countries with much stricter gub regulations have much, much lower gun violence and gun deaths than the US. Whether those addicted to FOX like it or not, the actual data proves it!
The US ranks first for rates of firearm homicides among high-income countries with populations over 10 million. Originally published March 25, 2021. Last updated October 31, 2023. Among 65 high-income countries and territories, the United States stands out for its high levels of gun violence.
Sherry says
@tr. . . you can go back to cowering under your bed now, But, be sure to take your gun and your phone with you. LOL! LOL! LOL!
FOX has you sooooooooo brainwashed and fear filled! LOL! LOL! LOL!
Skibum says
The Mexican drug cartels’ decades long massive expansion south of the border and into areas within the U.S. has been because of the voracious appetite for illegal drug consumption by AMERICANS. Far too many people living in this contry just cannot get enough drugs into their bodies, and if it were not for their free will to buy and use all of the various illegal substances peddled by drug sellers, there would be no mass market for the Mexican drug cartels. That is part 1. The second part is that some, not all, U.S. gun manufacturers show no ethical or moral compass when offering their weapons for sale, because they will sell to anyone and everyone in order to turn profits. There is a constant stream of U.S. manufactured weapons and ammunition flowing south from the U.S. into Mexico to arm the drug cartels for protection while they send more and more illegal drugs north in return. It is a vicious circle that is created and sustained by our own citizens right here in the U.S. who allow the drug cartels to exist in the first place. Now I know that Mexico has their own problems, including rampant corruption, but they cannot solve the drug cartel problem on their own when the exponentially larger U.S. population freely gives billions of our dollars annually to the cartels in drug sales by AMERICAN citizens. Neither U.S. Customs an Border Patrol, ATF, FBI, or state and local law enforcemet can put a dent in the northward flow of illegal drugs as long as there are enough AMERICAN citizens willing and able to put their $$$ down and buy illegal drugs from sellers who are at the very long end of the Mexican drug cartel delivery system. It is a vicious circle that this country has been unsucessfully trying to combat for decades. I’m sure Mexico is at its wits end too, so I applaud this latest attempt by Mexico to try to combat their country’s drug cartel problem using this novel approach. Don’t blame them for doing what they feel they need to do, when the problem for both Mexico and the U.S. is OUR OWN CITIZENS who use illegal drugs and funnel billions of U.S. dollars directly to Mexico and South America and into the hands of drug cartels who, in their minds, run very successful “businesses” thanks to millions and millions of AMERICANS.
Ed P says
This legal action has been floated and taking place over the past several years and is nothing new. It’s estimated that 70% of illegal firearms do come from the U.S.
Smuggled into Mexico by whom? That is a crime that the gun manufacturers can not control or would never endorse. Could smugglers be Mexican?
Should we look to Mexico and bring legal action for illegal border crossings or worse yet Tequila deaths? ( sarcasm). What about illegal drugs such as heroin, cocaine, meth, and fentanyl deaths. Is Mexico responsible?
The old adage about a slippery slope appears to be an issue.
And to a prior post “except, if guns weren’t out there,the “people”wouldn’t be using them. It’s not logic 101. It’s gibberish. The criminal element will always have guns even if we disarm the law abiding general population. The cartels have the money and means to produce their own arsenal if required.
Sherry says
Skibum. . . as usual, you are right on !
Bee says
One in the same. Goobertron!
TR says
Jokes on you with your lame comment. You can believe it or not, but I don’t watch any TV news. So your theory that Fox has me brainwashed is LOL on you. As far as me cowering under my bed with my gun makes me think you think I’m afraid. Well let me tell you something. I’m not afraid of anything and am always locked and loaded even when I’m out on a daily bases. You hopefully are as well. But you probably are not and think everyone (including the criminals should sit around and sing cum ba ya. Don’t come crying to me to protect you because it won’t happen. The real world is no longer what it was 20 years ago. I’m ready to protect my family and friends at any given time, are you? Now it’s time for you to go take your nap and maybe you’ll wake up in a fantasy world you think we should have.
Laurel says
TR: The article reads that Mexico is suing the gun manufacturers. That’s the issue here. When Obama first became President, the NRA and gun manufacturers spread the rumor that he was going to “take away all our guns.” Gun sales soared! President Obama did not “take away all our guns.” It was a marketing pitch. The manufacturers deserve to be sued.
Laurel says
Skibum: True. I will add to that the drug manufacturers who also seem to have little conscience how their drugs are used, causing many folks who get caught up in drug addiction because of drug prescriptions ending while their bodies are hooked. https://www.npr.org/2022/02/25/1082901958/opioid-settlement-johnson-26-billion
It may be possible that some people are more susceptible to opioids genetically. After surgery, I was prescribed synthetic opioids, but I used them sparingly as I didn’t like them. Others, however, become hooked very quickly and dramatically. Maybe these pharma companies should research simple tests that may suggest certain individuals used different pain killers that are less addictive to them in particular.