WASHINGTON − A federal law that protects the firearm industry didn’t stop the parents of the victims of the 2012 Sandy Hook Elementary School mass shooting from going after the gun maker.
But in the first test of the law before the Supreme Court on Tuesday, the justices are expected to cast a more skeptical eye on Mexico’s attempt to hold American gun companies responsible for the violence caused by drug cartels armed with U.S.-made weapons.
This time, gun violence prevention groups worry the Supreme Court could side with gun makers in a way that would go far beyond this dispute between Mexico and American gun companies.
”People in the United States” are ”suffering, being shot, being killed,” said David Pucino, legal director at Giffords Law Center, a gun violence prevention group. He worries the Supreme Court will take away a tool for going after clear law breaking by gun companies.
These suits seek compensation for injuries and are also aimed at promoting safer firearm designs, keeping weapons out of the hands of criminals and placing part of the blame for gun violence on the industry.
Gun rights groups, on the other hand, argue that Mexico is trying to bankrupt the American firearms industry and undermine the Second Amendment.
“Mexico has extinguished its constitutional arms right and now seeks to extinguish America’s,” the National Rifle Association told the Supreme Court. Mexico has only one gun store, universal background checks and issues fewer than 50 gun permits a year, according to filings.
And more broadly, business groups are worried that if gun makers are considered liable for gun violence in Mexico, it would invite all kinds of lawsuits against all companies − not just gun makers −when their products are used in the wrong way.
The case arrives at the Supreme Court against a backdrop of strained diplomatic relations between the U.S. 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 U.S.
Mexico says the flow of American weapons south of the border is hurting its fight against drug cartels.
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“We categorically reject the slander made by the White House against the Mexican government about alliances with criminal organizations,” Mexico President Claudia Sheinbaum Pardo wrote on social media in February. The administration had accused Mexico of having an “intolerable alliance” with the cartels.
“If there is such an alliance anywhere, it is in the U.S. gun shops that sell high-powered weapons to these criminal groups,” Sheinbaum said.
Hundreds of thousands of weapons − made by the manufacturers Mexico is suing − are trafficked annually over the border.
Mexico says gun makers are designing and marketing weapons to appeal to cartels – including Colt’s special-edition handguns like the Super “El Jefe” pistol, a term used to refer to cartel bosses, and a pistol named after the Mexican revolutionary Emiliano Zapata.
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Despite being warned by the U.S. government about weapons sold to specific distributors and dealers ending up at crime scenes in Mexico, gun makers continue to do business with them, Mexico charges.
“And they intentionally do all this to boost their bottom lines,” Mexico’s attorneys said in a brief.
Mexico wants an unspecified amount of monetary damages, estimated in the range of $10 billion, and a court order requiring gun companies to change their practices.
A federal judge in Massachusetts dismissed the suit, ruling it was barred by a 2005 law shielding gun makers 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 gun makers “aided and abetted the knowingly unlawful downstream trafficking of their guns into Mexico.”
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Mexico would still have to prove its allegations if the case goes to trial.
The fact that the Supreme Court wanted to weigh in at this stage is an indication that they don’t think Mexico should get that chance.
“If I had to predict, I think there’s a pretty strong possibility they rule against Mexico,” said Andrew Willinger, executive director of the Duke Center for Firearms Law. “It would be a little bit strange to take the case in this posture if they weren’t inclined to do so.”
This is the first time the Supreme Court is delving into the Protection of Legal Commerce in Arms Act, the law Congress passed in 2005 following efforts by local governments to sue gun makers for the harms caused by gun violence.
In 2019, the Supreme Court declined to consider Remington Arms Co.’s argument that the law prevented the parents of Sandy Hook Elementary School victims from suing Remington for marketing the military-style rifle used in the mass shooting “for use in assaults against human beings.”
The law allows suits if a gun maker 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.
The U.S. gun makers argue there are too many steps involved in the transfer of its weapons to cartel members to hold them responsible. Guns made in the U.S. are sold to federally licensed distributors who sell them to federally licensed dealers – some of whom illegally or negligently sell them to criminals who smuggle them into Mexico where they end up in the hands of cartels.
“Mexico’s criminal theory thus rests upon a medley of independent criminal acts, spanning an international border,” lawyers for the industry told the Supreme Court. “No court has ever found proximate cause on such a remote theory.”
The gun makers offer similar reasons for why they did not “aid and abet” illegally gun trafficking into Mexico.
Mexico counters that by supplying weapons – some of which have been specifically designed to appeal to the cartels – to “red-flag” dealers, the use of the weapons to commit crimes was “starkly foreseeable.”
The National Rifle Association told the Supreme Court that accepting Mexico’s argument would lead to a proliferation of equally bogus lawsuits that “could destroy the firearms industry solely through litigation costs.”
“This case exemplifies why (the 2005 law) was enacted,” the NRA wrote in a filing.
Pucino, of the Giffords Law Center, said gun makers are hoping that when handed a test of the law by a challenger less sympathetic than the parents of the Sandy Hook victims, the conservative court will effectively neuter the law’s exceptions so gun makers can never be held liable.
“They’re trying to get the court to rule that the statute is even broader than it is on its face,” he said. “They want even illegal conduct by the gun companies to be immunized.”
Willinger, of the Duke Center for Firearms Law, said the court could rule more narrowly in a way would still allow domestic lawsuits in which the chain of events between the manufacture of a gun and the harm it causes is more direct than in Mexico’s challenge.
“And that’s where I see the real potential for there to be a more unanimous decision,” he said, “because the court has issued those types of decisions going back some decades, where it’s just said that … the chain is just too convoluted and we’re not going to allow liability to arise.”
A decision is expected by the end of June.
Contributing: Lauren Villagran