For years now, Mexican officials have made lax US gun control partly responsible for the violence in the country. Experts claim that at least 70% of the weapons used by criminals in Mexico come from the US. A series of attempts have been made to stop the flow of arms into Mexican territory, all to no avail. On Aug. 4, 2021, the Mexican government filed a lawsuit against a dozen US gun manufacturers in the Massachusetts District Court. According to the Mexican Foreign Affairs legal consultant, Alejandro Celorio Alcántara, the selection of this particular court is based on its progressive standing and its level of sophistication. Mexico is seeking $10 billion in compensation from nine gun manufacturers and two arms dealers.
Beyond the economic compensation, the goal of the lawsuit is twofold: To change the behavior of the American arms industry and to bring attention to the negligent practices of gun companies. The Mexican government is specifically looking for American gun manufacturers to stop advertising to drug cartels and establish security and tracking mechanisms in the weapons they produce. It is worth noting that these guns are attractive for drug cartel members because they are engraved with Mexican symbols and carry names in Spanish such as “Jefe de Jefes” (Boss of Bosses) that evoke the drug cartel’s power and history.
This is the first time that Mexico has filed such a lawsuit. Taking on US gun manufacturers, however, is a difficult and complicated feat.
TAKING ON US GUN MANUFACTURERS
On Nov. 22, 2021, the UN Security Council held an Open Debate on the impact of the diversion and trafficking of arms on peace and security. The Mexican Secretary of Foreign Affairs, Marcelo Ebrard, while presiding over the meeting, touched upon three connected aspects: the almost infinite supply of weapons that hinders the UN’s ability to resolve conflicts; the inability of private actors to regulate and monitor their weapons and prevent them from falling into criminal hands; and the use of legal systems to hold gun manufacturers responsible for negligence. Ebrard briefly discussed the lawsuit his government filed in US courts and emphasized that this legal process against the US weapon manufacturers does not seek to question their right to sell arms, but rather to denounce practices that have pernicious consequences in other countries.
Later that day, arms manufacturers Beretta USA, Barret Firearms, Smith & Wesson, Ruger & Co, International Arms, Inc., Century International Arms, Sturm Ruger & Co., Colt’s Manufacturing Co., and Glock as well as the two arms dealers, Witmer Public Safety Group and Interstate Arms, presented a request to dismiss the lawsuit. Their argument is based on six claims that emphasize that the lawsuit does not stand on any firm grounds.
First, they claim that they are law-abiding members of the community and that the lawsuit is stretched to impose liability on arms manufacturers. Using Simon v Eastern Kentucky Welfare Rights Organization, the companies claim that an injury is not fairly traceable to the defendant when it “results from the independent action of some third party not before the court,” referring to criminal groups. Furthermore, the companies claim that most criminals in Mexico do not use their weapons, while there is evidence to the contrary.
Beyond the economic compensation, the goal of the lawsuit is twofold: To change the behavior of the American arms industry and to bring attention to the negligent practices of gun companies.
Second, the companies are claiming broad immunity under the exceptions offered by the Protection of Lawful Commerce in Arms Act (PLCAA). Exceptions include damages resulting from criminal or unlawful acts in the case of either access to handguns by unauthorized persons or the unauthorized person using a handgun that was made inoperable by storage or a safety device. These exceptions, however, are a troubling aspect of the law. The PLCAA protects the interests of the arms industry by protecting firearms manufacturers and distributors from liability when criminal or unlawful acts are committed with their products, and hence prevents accountability. Furthermore, there is no similar law applied to any other industry in the US, which is a cause for concern.
Third, they argue that the base of the allegations mirror those from state and local governments that have been consistently rejected, such as in the case of Ganim v Smith Wesson Corp, where the courts found that the mayor and City of Bridgeport did not have any standing to sue handgun manufacturers for harm to the city. The argument also states that “there is no reason that a foreign governmental plaintiff should be able to succeed where those domestic governments have failed.” This is reminiscent of the efforts of victims of school shootings and their families in the US. The case is very similar to the legal process from 2020 where families of shooting victims filed a lawsuit against manufacturers and sellers of weapons. The case was against “ghost gun” kits that make it harder to track and regulate. Again, they refer to negligent practices. Yet, the argument seems to fall back into the self-perception of weapon companies as being above any law and to deprecate the efforts from civil society to regulate guns in the US and abroad.
The fourth and fifth claims are similar and can be evaluated together. On the one hand, they claim to have no common law duty to Mexico, rejecting any claims to having duties to protect foreign sovereigns from derivative harms while they appeal to the rejections from numerous courts stating that “public nuisance” claims do not apply to the manufacture and sale of lawful products. In other words, selling guns is not illegal. Yet, these “lawful products” are potentially dangerous because they are instruments of violence and war, and hence can be labeled as being a “public nuisance.”
The sixth and final claim that gun companies make is that a foreign country cannot use its law to reach across borders and impose liability. In simple terms, Mexico is seeking to impose its own gun control policies within the US. This might be understood as an issue of sovereignty. This, however, may be the weakest claim because this case is a civil lawsuit that addresses harm to individuals. It does not seek to change the Second Amendment of the US constitution nor the right to bear arms.
The most telling aspect of these claims is that the focus of the demand — negligent practices — is barely mentioned in the request to dismiss the legal process. Instead, they consider this move as a way to deflect blame on them for the violence in Mexico. Nevertheless, this process puts into discussion Washington’s conservative claims that drug trafficking to the US should be a responsibility of Mexico.
A BOLD, BUT NECESSARY, STEP
From the beginning of the process, the lawsuit has been considered an uphill battle. However, the lawsuit is one of the boldest steps to pressure the arms industry into creating and applying better tracing mechanisms to the weapons they produce and sell. Efforts to reduce immunity from the arms industry have already begun in the US. This summer, President Joe Biden called on Congress to repeal PLCAA as part of the strategy to reduce gun violence.
The political environment appears to be more open to a lawsuit like the one presented by Mexico, but it might still not achieve its goals. Be it as it may, better controls to stop the flow of weapons into Mexico are beneficial to both countries. Mexico has been engaged in an effort to stop drug cartels which, according to estimates between 2006 and 2018, have left a death toll of over 150,000-crime-related deaths. Despite a decline of 0.3% in 2020, the number of homicides in Mexico remains at exceptionally high levels. Gun control within the US, therefore, would allow Mexico to more effectively counter highly-armed organized crime and potentially prevent larger forced displacement and migration. Official figures from the Internal Displacement Monitoring Centre show that between 2009 and 2020, there have been around 357,000 persons internally displaced and many more migrating to the US as a result of conflict and violence in the country.
By holding its gun manufacturers accountable, the US would be better able to prevent at least two types of violence in the country. First, school shootings have been growing since 2010. This year alone, despite the COVID-19 pandemic, the Center for Homeland Defense and Security recorded 55 school shootings. Second, in recent years, domestic extremism and the violence derived from it have become a common threat to which the White House has launched the first-ever National Strategy for Countering Domestic Terrorism. The easily accessible guns and negligent practices have definitely played a large role in the scale of the problems afflicting both nations.
Today, the Massachusetts District Court has the opportunity to contribute to a safer environment through the decision to request the improvement of weapon controls. Whether or not the court decides to take this opportunity is to be seen. The bottom line, however, is that the US arms industry needs to be held accountable for its role in violence in both the US and Mexico.
Gabriel Mondragón Toledo is a PhD student at the University of Hamburg, Germany, studying the role of narratives in practices of disarmament and arms control. He is also a member of the Center for Sustainable Society Research from the University of Hamburg.
