Supreme Court poised to side with U.S. gunmakers in showdown with Mexico
WASHINGTON – The Supreme Court on Tuesday appeared poised to side with U.S. gunmakers that Mexico can't try to hold them liable for violence caused by Mexican drug cartels armed with their weapons.
Attorneys for Mexico argue that gun companies are making deliberate design, marketing and distribution choices to profit off the illegal market of trafficking into Mexico.
The gun industry denies that’s happening and contends these lawsuits are barred by a federal law protecting gunmakers and dealers from liability when their products are used to commit crimes.
Attorneys for the industry say the chain of events between the manufacture of a gun and the harm it causes is too lengthy to blame the industry.
“No case in American history supports that theory,” said Noel Francisco, an attorney representing the industry.
Otherwise, he said, a company like Budweiser would be liable for every accident caused by an underage drinker since it knows teenagers will buy beer, drive drunk and crash.
Catherine Stetson, an attorney for Mexico, said Budweiser would run into trouble if it sold bulk quantities of beer to liquor stores near high schools, knowing they were regularly selling to underage students and even designed a special “Best Prom Ever” beer can to be sold in the schools.
“That is the allegations in this case,” she said.
Strained relations between Mexico and U.S.
The case arrives at the Supreme Court against a backdrop of strained diplomatic relations between the United States and Mexico.
President Donald Trump is imposing tariffs on imports from Mexico to pressure the country to do more to stop illegal drugs flowing into the United States.
Mexico says the flow of American weapons south of the border is hurting its fight against drug cartels.
Justice Samuel Alito wondered if the United States could turn the table on Mexico.
“So suppose that one of the 50 states sued the government of Mexico for aiding and abetting illegal conduct within the state's borders that causes the state to incur law enforcement costs, public welfare costs, other costs,” Alito told Stetson. "Would your client be willing to litigate that case in the courts of the United States?"
`You have to aid and abet'
Chief Justice John Roberts asked both sides what share of guns made in the United States need to end up in Mexico to show gunmakers are complicit.
“At some point it must matter,” he said.
Francisco said it doesn’t matter because the issue is whether the gunmakers are responsible for the harms the weapons ultimately cause.
Stetson said the key question is whether gunmakers know how their weapons are ending up in Mexico and are still doing business with specific distributors and dealers they’ve been warned about.
But Justice Sonia Sotomayor said the court has “repeatedly said mere knowledge is not enough.”
“You have to aid and abet in some way,” she said. “You have to intend and take affirmative action to participate.”
Stetson stressed that the suit is in its early stages and said Mexico should be allowed a chance to make its case.
First test of law protecting firearms industry
A federal judge in Massachusetts dismissed the suit, ruling it was barred by a 2005 law shielding gunmakers from liability.
But the Boston-based 1st U.S. Circuit Court of Appeals said the challenge met an exception in the law and could move forward. Mexico, it said, had adequately alleged the gunmakers “aided and abetted the knowingly unlawful downstream trafficking of their guns into Mexico.”
The case is the court's first test of the Protection of Lawful Commerce in Arms Act, the law Congress passed in 2005 following efforts by local governments to sue gunmakers for the harms caused by gun violence.
The law allows suits if a gunmaker knowingly violates another law – such as selling firearms to someone prohibited from having one − and that act is the “proximate cause” of the resulting harm.
Justice Katanji Brown Jackson said one of Congress' motivations for the law was preserving lawmakers' ability to regulate the gun industry rather than have it essentially regulated through lawsuits. She questioned whether the industry changes Mexico is seeking in their suit, along with some $10 billion in monetary damages, would lead to what Congress was trying to avoid.
Justice Brett Kavanaugh worried that accepting Mexico’s theory would expand liability risks for makers of other dangerous products.
“That’s a real concern for me,” he said.
A decision in Smith & Wesson Brands Inc. v. Estados Unidos Mexicanos is expected by the end of June.
(This story has been updated to correct the name of the test case.)