Amicus Curiae Brief — Smith & Wesson Brands, Inc., et al., Petitioners v. Estados Unidos Mexicanos

No. 23-1141

In the

Supreme Court of the United States

SMITH & WESSON BRANDS, INC., et al.,

Petitioners,

v.

ESTADOS UNIDOS MEXICANOS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the First Circuit

BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Richard P. Hutchison

Landmark Legal

Foundation

3100 Broadway, Suite 1210

Kansas City, MO 64111

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal

Foundation

19415 Deerfield Ave.,

Suite 312

Leesburg, VA 20176

703-544-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae

116686

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STATEMENT OF INTEREST OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

“Proximate cause” requires more than

foreseeability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. Aiding and abetting requires conscious,

culpable conduct that is connected to the

harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. The opinion below threatens the American

firearms industry . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Camden County Bd. of Chosen Freeholders v.

Beretta U.S.A. Corp.,

123 F. Supp. 2d 245 (D.N.J. 2000),

aff ’d, 273 F.3d 536 (3d Cir. 2001) . . . . . . . . . . . . . . . 5, 6

City of Chicago v. Beretta U.S.A. Corp.,

213 Ill. 2d 351, 410-411 (Ill. 2004) . . . . . . . . . . . . . . . . 7

City of Phila. V. Beretta U.S.A Corp.,

277 F.3d 415 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 6

Halberstam v. Welch,

705 F.2d 472 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . 10

Hamilton v. Beretta U.S.A. Corp.,

96 N.Y.2d 222 (App. Ct. N.Y. 2001) . . . . . . . . . . . . . . . 7

Holmes v. Securities Investor Prot. Corp.,

503 U.S. 258 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ileto v. Glock, Inc.,

565 F.3d 1126 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 5

People v. Sturm, Ruger & Co.,

309 A.D.2d 91 (N.Y. App. Div. 2003) . . . . . . . . . . . . . . 7

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

iii

Cited Authorities

Page

STATUTES AND REGULATIONS

Protection of Lawful Commerce in Arms Act,

P.L. 109-92 (2005), 119 Stat. 2095, codified at

15 U.S.C. § 7901 et seq. . . . . . . . . . . . . . . . . . 1, 2, 3, 4, 9

15 U.S.C. § 7901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4

15 U.S.C. § 7903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

OTHER AUTHORITIES

Restatement (Second) of Torts 449

(Am. L. Inst. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Accuracy International, About Us, https://

w w w. a c c u r a c y i nt e r n a t i on a l . c o m /

about-us (last visited May 16, 2024) . . . . . . . . . . . . . 12

Beretta Holding, Beretta Holding: Strategic

Investm ents Boost Fin ancial Results,

https://tinyurl.com /467jtsab (last visited

May 15, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Colt CZ Group, Colt CZ Group SE Increased Its

Revenues to CZK 14.9 Billion in 2023, (Mar. 26,

2024), https://tinyurl.com/yc6322eb . . . . . . . . . . . . . 15

iv

Cited Authorities

Page

Center For American Progress, Frequently

Asked Questions About Gun Trafficking, Gun

Violence Prevention FAQs (Aug. 20, 2021),

https://www.americanprogress.org/article/

frequently-asked-questions-gun-trafficking/ . . . . . 14

Israel Weapon Industries, About IWI, https://iwi.

net/about-us/ (last visited May 16, 2024) . . . . . . . . . 12

Isr a el We ap on Indu st r ie s , I W I Jer icho,

http s: // iw i.net / iw i-jer icho -pi st ol /

(last visited May 16, 2024) . . . . . . . . . . . . . . . . . . 12-13

Juggernaut Case, https://juggernautcase.com/

(“combat proven”) (last visited May 16, 2024) . . . . . 12

Lindsay S. Regele, Industrial Manifest Destiny:

A m e r i c a n Fi r e a r m s Ma n u f a c t u r i n g

and Antebellum Expansion, 92 Business

History Rev. 57 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 11

Mark Wilson, Ecuador: The New Corridor for

South American Arms Trafficking, InSight

Crime (Oct. 4, 2021), https://insightcrime.

org /new s /ec u a dor -new- cor r idor - sout hamerican-arms-trafficking/ . . . . . . . . . . . . . . . . . . . . 14

v

Cited Authorities

Page

Monster Flashlight Tactical, https://shop.

monsterf lashlight.com /?v=7516fd43adaa

(“tactical LED f lashlights”) (last visited

May 16, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Outlaw Eyewear, https://tinyurl.com/sba39azb

(“tactical aluminum ballistic sunglasses”)

(last visited May 16, 2024) . . . . . . . . . . . . . . . . . . . . . 11

Paul M. Barrett, Glock: The Rise of America’s

Gun (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

President John Adams, Fourth Annual Message

to the House of Representatives and the Senate

(Nov. 22, 1800) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sturm, Ruger & Co., Annual Report (Form 10-K)

(Feb. 22, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Smith & Wesson Brands, Inc., Annual Report

(Form 10-K) (Jun. 22, 2023) . . . . . . . . . . . . . . . . . . . . 14

Victor E. Schwartz, Remoteness Doctrine: A

Rational Limit on Tort Law, 8 Cornell J.

L. & Pub. Pol’y. 422 (1999) . . . . . . . . . . . . . . . . . . . . . . 8

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

Amicus Cur iae Landmark Legal Foundation

(“Landmark”) is a national public-interest law firm

committed to preserving the principles of limited

government, separation of powers, federalism, originalist

construction of the Constitution and individual rights.

This case involves an attempt to circumvent Congress

to regulate commerce through the courts, “thereby

threatening the Separation of Powers doctrine and

weakening and undermining important principles of

federalism.” Protection of Lawful Commerce in Arms

Act, 15 U.S.C. § 7901(a)(8).

Landmark urges this Court to grant the petition for

certiorari.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Over two decades ago, multiple lawsuits were filed to

hold companies in the American firearms industry liable

for the harms caused by criminals. In response, Congress

acted decisively to prohibit these suits by passing the

PLCA A in 2005. Congress harshly and extensively

described the problem the PLCAA was intended to

address. 15 U.S.C. § 7901. The heavily regulated members

1. No counsel for a party authored this brief in whole or

in part, and no parties’ counsel or party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than Amicus Curiae, its members,

or its counsel made a monetary contribution to its preparation or

submission. Counsel for Amicus Curiae provided timely notice to

counsel for all parties of its intention to file this brief.

2

of the gun industry “are not, and should not, be liable

for the harm” solely caused by the unlawful use of their

products. § 7901(a)(5). The lawsuits against the firearms

companies, brought by U.S. governmental entities and

private groups, threaten constitutional rights, interstate

and foreign commerce, and the stability of our economic

system. § 7901(a)(6). They have no basis in the common

law or the American constitutional system, Congress

declared. § 7901(a)(7). The PLCAA thus prohibits lawsuits

against firearms manufacturers, distributors, and dealers

“for the harm solely caused by the criminal or unlawful

misuse of firearm products . . . by others when the product

functioned as designed and intended.” 7901(b)(1).

But the First Circuit Court of Appeals decided to

allow a lawsuit by Mexico against the heavily regulated

firearms companies to proceed anyway­­—even though

the harms were caused by the criminal activities of the

Mexican cartels in Mexico. The circuit court found this

case fits one of the statutory exceptions to the PLCAA’s

blanket prohibition, one predicated on a statutory

violation. Mexico’s suit seeks billions of dollars in damages

and injunctive relief to change the lawful practices

of America’s leading firearms companies. Under the

circuit court’s theory, even though American companies

are lawfully designing, manufacturing, marketing,

and distributing their products, they could plausibly

be considered as having knowingly aided and abetted

gun traffickers and gangsters in Mexico and thereby,

proximately caused harm to the Mexican government.

Pet.App.311a.

To reach its conclusion, the First Circuit had to take

several wrongful steps. Although the predicate exception

requires a showing of proximate causation, the court

3

adopted a much broader standard of foreseeability. It

ignored the proximate cause analysis in other courts that

dismissed similar suits for being too attenuated—suits that

even predated the prohibitions of the PLCAA. Although

the predicate exception requires a knowing violation of

an underlying statute, the court below interpreted this

standard of intent to include knowledge in a general, and

not specific, sense of Mexican criminal activity. Mexico’s

far-reaching claims were shoehorned to fit the exception.

And by loosening the proximate cause requirement, the

circuit court read the predicate exception in a way that

swallows the rule. Finally, the circuit court ignored

this Court’s requirement of conscious, culpable activity

to establish aiding and abetting that is found in recent

precedent.

The practical consequences of the opinion below are

significant and severe. The circuit court opened the door

to similar lawsuits from other foreign governments in the

Caribbean and Latin America. This could put America’s

domestic weapons manufacturers at risk of bankruptcy,

which in turn threatens our national security. But those

are just the consequences related to American firearms

companies. Countless other industries will be liable for the

unlawful misuse of their products by criminals under the

broad foreseeability standard adopted by the court below.

This case warrants immediate review.

ARGUMENT

I.

“Proximate cause” requires more than foreseeability.

Despite the PLCAA’s blanket prohibition, the circuit

court found that this case could fit under one of the Act’s

4

exceptions: when a company “knowingly” violates a state

or federal firearms law “applicable to the sale or marketing

of the product, and the violation was a proximate cause of

the harm for which relief is sought.” 15 U.S.C. § 7903(5)

(A)(iii). The circuit court found that Mexico has plausibly

alleged a knowing violation of aiding and abetting

statutes through the firearms companies’ marketing,

manufacturing, design, and distribution processes. Pet.

App.311a.

The statutory text, however, has explicit and implicit

provisions indicating this case is covered by the PLCAA.

The findings and purposes target similar lawsuits by

American governmental entities as an interference

with separation of powers, sovereignty, and sister state

comity, suggesting a suit by a foreign nation is a step too

far. § 7901(a)(8), (b)(6). The statute decries attempts to

regulate the firearms industry through judicial decree,

as Mexico’s expansive requested injunctive relief does

here. § 7901(a)(8).

The PLCAA provides six exceptions to the blanket

prohibition: (i.) actions brought by parties directly harmed

against dealers for transferring a firearm knowing it

will be used criminally; (ii.) actions against “sellers” for

negligent entrustment or negligence per se; (iii.) actions

against manufacturers or dealers for violating state or

federal law about the marketing and sale of firearms, if that

violation was the proximate cause of harm for which relief

is sought; (iv.) actions for breach of contract or warranty;

(v.) actions for death resulting from defects in design

or manufacturing, when the firearm was used properly

and legally; and (vi.) actions initiated by the Attorney

General to enforce the Gun Control Act or National

5

Firearms Act. § 7903(5)(A)(i)-(vi). These exceptions allow

lawsuits to proceed only in the face of criminal acts, or

tortious conduct where the firearms company is directly

or knowingly involved or is strictly liable under state law.

They encompass highly culpable conduct, unlike the lawful

conduct of the heavily regulated firearms companies here,

further suggesting Mexico’s suit is prohibited. And as the

Ninth Circuit Court of Appeals observed, due in part to

the carve out for negligent entrustment and negligence per

se, “Congress clearly intended to preempt common-law

claims, such as general tort theories of liability.” Ileto v.

Glock, Inc., 565 F.3d 1126, 1135, n.6 (9th Cir. 2009). Taking

all elements of the statute together, the PLCAA provides

only narrow exceptions to the blanket prohibition that do

not apply here.

Although the circuit court found the third exception

applicable, it still requires a showing of “proximate cause.”

§ 7903(5)(A)(iii). In similar cases predating passage of the

PLCAA, state and federal courts repeatedly found the

chain of causation too weak and involved too many steps

to show that the firearms companies were the proximate

cause of injury. Some of these cases also raised sales and

marketing decisions to establish liability. But the circuit

court here declined to adopt their reasoning, creating

a split with a decision from the Third Circuit Court of

Appeals.

In Camden County Bd. of Chosen Freeholders v.

Beretta U.S.A. Corp., 123 F. Supp. 2d 245, 259 (D.N.J.

2000), aff ’d, 273 F.3d 536 (3d Cir. 2001), the connection

between alleged misconduct and harm was “highly

attenuated.” It found the causal connection “weak,

amounting to scarcely little more than an assertion that

6

because the gun manufacturers distribute their products,

they eventually fall into the wrong hands, are used to

commit crimes against persons and property, ‘causing’

the County to expend money for law enforcement.” Id.

The district court noted the “great number of links in the

causal chain.” Id. at 257. To succeed, the plaintiff “would

have to show that the chain of causation was not severed

by illegal conduct on the part of the distributors and

retailers, illegal conduct by the purchaser of handguns,

or gun theft” Id. at 257-58.

In City of Phila. v. Beretta U.S.A. Corp., 277 F.3d

415, 423-24 (3d Cir. 2002), the circuit court addressed this

Court’s doctrine of remoteness in proximate cause cases.

Under this doctrine, directness is key, so “a plaintiff who

complains of harm flowing merely from the misfortunes

visited upon a third person by the defendant’s acts

[is] generally said to stand at too remote a distance to

recover.” Id. at 423 (citing Holmes v. Securities Investor

Prot. Corp., 503 U.S. 258, 268-69 (1992)). Remoteness

is determined by six factors: the connection between

the tort and its harm, the intent to cause the harm, the

nature of the injury and whether it fits within tort law,

the speculative nature of the claim, whether the injury

was direct, and the practical considerations of difficult

assignment of, or excessive, damages to the plaintiff.

City of Phila., 277 F.3d at 423. The circuit court cited the

“long and tortuous” route between the gun manufacturer

to the streets of Philadelphia, the derivative nature of

plaintiff ’s injuries, the independent breaks in the causal

chain, and difficulties posed by apportioning liability. Id.

at 423-25. Ultimately, the circuit court found the “causal

connection between the gun manufacturers’ conduct and

the plaintiffs’ injuries [was] attenuated and weak.” City of

Phila., 277 F.3d at 426. The route between American gun

7

manufacturers and the streets of Mexico is even longer

and more tortuous.

In New York, the Court of Appeals found the connection

too remote between the plaintiffs, criminals, and defendant

firearms companies, as it ran “through several links in a

chain consisting of at least the manufacturer, the federally

licensed distributor or wholesaler, and the first retailer.

The chain most often includes numerous subsequent legal

purchasers or even a thief.” Hamilton v. Beretta U.S.A.

Corp., 96 N.Y.2d 222, 234 (App. Ct. N.Y. 2001). And in a

separate New York case, the harm was once again “far too

remote from the defendants’ otherwise lawful commercial

activity.” People v. Sturm, Ruger & Co., 309 A.D.2d 91, 103

(N.Y. App. Div. 2003). And since harm was “caused directly

and principally by the criminal activity of intervening

third parties,” the defendant’s lawful commercial activity

“may not be considered a proximate cause of such harm.”

Id. The Illinois Supreme Court followed this reasoning

in City of Chicago v. Beretta U.S.A. Corp. 213 Ill. 2d 351,

410-411 (Ill. 2004).

The causal chain which Mexico uses to connect

the firearms companies to their injuries is even longer

than the ones that courts rejected in these pre-PLCAA

cases. Furthermore, Mexico’s causal chain involves more

intervening actions from criminals, as the guns are being

smuggled across the border and illegally sold there to the

cartel. The circuit court raised a hypothetical to show

that “a multi-step description of the causal chain” does

not mean that there is an insufficient connection between

the defendant’s harmful conduct and plaintiff ’s injury.

Pet.App.311a. In the hypothetical, a defendant “falls

asleep at the helm of a large ship, leaning on the helm, so

8

as to move the tiller, which turns the rudder, which then

turns the ship off course, hitting and weakening a dike,

and thereby causing a reasonably cautious downstream

farmer to build a levee.” Id. Just because causation could

be described in multiple steps does not mean that “the

negligent helmsperson did not foreseeably cause the

farmer compensable harm.” Id. To the court, just as

“negligently steering the ship foreseeably caused the need

to shore-up flood defenses,” Mexico could plausibly claim

“that aiding and abetting the illegal sale of a large volume

of assault weapons to the cartels foreseeably caused the

Mexican government to shore-up its defenses.” Id.

The circuit court’s observation, however, is not

persuasive. Of course, describing the chain of causation

through multiple steps is not dispositive. Petitioners

raise the multi-step chain as simple shorthand to show

the chain here is more attenuated than in other cases

where proximate causation was rejected. In the circuit

court’s hypothetical, the helmsman triggers a series of

mechanical forces and physical reactions by leaning on

the helm. The gun manufacturers, by contrast, are more

separated from the harm in time and space by a series

of independent human actors with free will: distributors,

salesmen, straw buyers, smugglers and gangsters. “While

the remoteness doctrine is not based simply on distances

in time or space, it is more likely to apply when there

have been independent intervening acts between the

defendant’s conduct and the plaintiff ’s alleged injury.”

Victor E. Schwartz, Remoteness Doctrine: A Rational

Limit on Tort Law, 8 Cornell J. L. & Pub. Pol’y. 422, 426

(1999). Furthermore, the hypothetical does not deal with

the problems caused by treating proximate causation as

a simple matter of foreseeability.

9

The court below relied, in part on the Restatement

(Second) of Torts to explain why an intervening criminal

act by cartel members did not break the chain of causation

in this case. Pet.App.313a. According to the Restatement,

“[i]f the likelihood that a third person may act in a

particular manner is the hazard or one of the hazards

which makes the actor negligent, such an act whether

innocent, negligent, intentionally tortious, or criminal

does not prevent the actor from being liable for harm

caused thereby.” Restatement (Second) of Torts §449 (Am.

L. Inst. 1965). Once again, this is certainly superficially

true, but inapposite here because of the remoteness of the

ultimate harms. This case does not involve the liability

of someone negligently entrusted with a weapon who

commits a crime, but the third or more criminal down the

line: straw buyer to smuggler to cartel member.

In summary, the causal chain in this case is too

attenuated to establish proximate cause. This case does

not meet the exception to the blanket prohibition of the

PLCAA.

II. Aiding and abetting requires conscious, culpable

conduct that is connected to the harm.

The circuit court also found that the firearms

companies aided and abetted the cartels through their

lawful activities, including marketing. In the recent case

of Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), Twitter

was alleged to have aided and abetted a terror attack in

Istanbul, Turkey through ISIS’s use of its platform. The

Supreme Court considered the meaning of aiding and

abetting and “what precisely must the defendant have

‘aided and abetted.’” Id. at 484. The principal focus of

10

analysis was what constituted “knowingly and substantially

assist[ing] the principal violation.” Halberstam v. Welch,

705 F.2d 472, 477 (D.C. Cir. 1983). That case laid out six

factors for analysis: “(1) ‘the nature of the act assisted,’

(2) the ‘amount of assistance’ provided, (3) whether the

defendant was ‘present at the time’ of the principal tort,

(4) the ... ‘relation to the tortious actor,’ (5) the ‘defendant’s

state of mind,’ and (6) the ‘duration of assistance’ given.”

Twitter, 598 U.S. at 486 (quoting Halberstam, 705 F.2d

at 488 (emphasis deleted)).

Applying these factors in Twitter, Justice Thomas,

writing for the majority, reasoned that aiding and abetting

requires conscious, affirmative action. “[O]ur legal system

generally does not impose liability for mere omissions,

inactions, or nonfeasance.” Twitter, 598 U.S. at 489.

Twitter may have watched the terror attack in question

with indifference, but it did not take any affirmative action

to aid the attackers. Furthermore, there is no evidence

it had treated posts made by terrorists any differently

than those made by any other users. Because of this

lack of active aid on the part of Twitter, and because the

connection between the terrorist attack and Twitter was

“highly attenuated,” the Court held that Twitter did not

aid or abet the attack. Id. at 500.

Here, Mexico’s case of aiding and abetting rests

in part on firearms companies’ marketing decisions to

highlight their military effectiveness, an alleged appeal

to the cartels. This theory cannot meet the requirements

of conscious, culpable, and affirmative conduct laid out in

Twitter that links the defendant to the plaintiff ’s injury.

Marketing firearms based on their military effectiveness

11

has a long tradition in the United States, completely

unrelated to the Mexican cartels or any criminal activity.

The civilian market for guns in the United States expanded

by 1860 due in part to the manufacturers’ marketing and

advertising that emphasized their products’ combat

effectiveness. “[Samuel] Colt . . . became known for his

nationwide marketing and successful branding. This

success depended on the association of his arms with

frontier conquest. Testimony from American soldiers

who used Colt’s revolvers in Mexico, for example, became

a major selling point.” Lindsay S. Regele, Industrial

Manifest Destiny: American Firearms Manufacturing

and Antebellum Expansion, 92 Business History Rev. 57,

79 (2018). In fact, “One of Colt’s first print advertisements

from the early 1850s depicted a scene from the MexicanAmerican war, and an advertisement from 1858 harkened

back to their being ‘the first rifle fired’ in Florida in 1837.”

Id. 79-80. This type of appeal continues in the present day.

“Across the United States, the preferences of local cops

and county deputies have broad commercial consequences.

The American civilian gun-buying population tends to

gravitate toward what the professionals carry.” Paul M.

Barrett, Glock: The Rise of America’s Gun 18 (2012).

And the description of products as “military grade” in

marketing materials is not limited to American firearms

manufactures. Rather, it is an innocuous branding

technique used by a variety of American companies for

consumer goods, such as sunglasses, flashlights, phone

cases, and trucks. See Outlaw Eyewear, https://tinyurl.

com/sba39azb (“tactical aluminum ballistic sunglasses”)

(last visited May 16, 2024); Monster Flashlight Tactical,

https://shop.monsterflashlight.com/?v=7516fd43adaa

(“tactical LED flashlights”) (last visited May 16, 2024);

12

Juggernaut Case, https://juggernautcase.com/ (“combat

proven”) (last visited May 16, 2024); Ford, 2023 Ford

F-150 Interior-Exterior, https://www.ford.com/trucks/

f150/2023/features/interior-exterior/ (“high strength,

military grade, aluminum-alloy body”) (last visited May

16, 2024).

This marketing strategy is also common among

foreign small arms manufacturers in their advertising to

private purchasers. For example, in the United Kingdom,

Accuracy International boasts collaboration with the

British armed forces. Accuracy International, About Us,

https://www.accuracyinternational.com/about-us (last

visited May 16, 2024). Various rifles manufactured by

the company are advertised as “designed to withstand

constant military deployment,” “combat proven,” and not

only claiming to be “military grade” but rather explicitly

stating the official approval and testing done in cooperation

with NATO and other institutions of authority. Id.

In Israel, Israel Weapon Industries (IWI) brands its

products as adhering to the strictest military standards:

“All of IWI’s weapons have been battle proven around

the world under adverse and extreme environmental

conditions . . . [a]ll IWI weapon systems comply with the

most stringent military standards (MIL-STD) . . . applied

by the IDF.” Israel Weapon Industries, About IWI, https://

iwi.net/about-us/ (last visited May 16, 2024). Furthermore,

IWI describes its Jericho Pistol as being “deployed by the

military and police in Israel as well as law-enforcement

units worldwide. Being one of the most popular selfprotection guns, the JERICHO also operates as a personal

weapon in many countries.” Israel Weapon Industries,

IWI Jericho, https://iwi.net/iwi-jericho-pistol/ (last visited

13

May 16, 2024). It is unremarkable for companies to attempt

to associate products with the armed forces, considering

the premium militaries place on high-quality equipment.

American firearms companies have not done anything

to directly target the cartels as customers. Instead, they

are appealing to normal, law-abiding customers when

they associate their products with the military and law

enforcement. Their marketing strategies fail to support

a theory of aiding and abetting Mexican cartel violence.

III. The opinion below threatens the American firearms

industry.

Countless American industries will be at risk from

lawsuits from the broad and unworkable theory of liability

advanced by the court below. Manufacturers cannot be

expected to foresee every possible criminal misuse of

their product, especially as the causal chain lengthens.

And the firearms industry will be at immediate risk from

potential lawsuits from other Latin American countries.

The sovereign states of Antigua & Barbuda, Belize, the

Commonwealth of the Bahamas, Jamaica, and Trinidad &

Tobago filed a joint amicus brief in support of Mexico in

the court below. Brief for Latin American and Caribbean

Nations and NGO as Amici Curiae Supporting PlaintiffAppellant, Estados Unidos Mexicanos v. Smith & Wesson

Brands, Inc., et al., No. 22-1823. The purpose of their

brief was to inform the circuit court that although Mexico

was the sole plaintiff, “many other nations” were harmed.

Id. at x. They cited Costa Rica and Haiti as additional

nations with gun violence attributable to American gun

manufacturers. Id. at 13-15. The amici encouraged the

court below to allow the lawsuit to proceed, so that the

14

district court could order the manufacturers to make

“reforms” that change their distribution and design. Id.

at 19-24.

Guns are being trafficked in other Latin American

countries. “Ecuador is a focal point for arms trafficking

in South America. . . . The weapons moving through

Ecuador are imported from Chile, which in turn receives

them from the United States, Europe and Asia.” Mark

Wilson, Ecuador: The New Corridor for South American

Arms Trafficking, InSight Crime (Oct. 4, 2021), https://

insightcrime.org/news/ecuador-new-corridor-southamerican-arms-trafficking/. Furthermore, “Ecuador

serves as a critical transit point for arms moving

from Chile into Colombia.” Id. U.S.-sourced guns

have also been recovered in crimes in Guatemala, El

Salvador, and Honduras. Center For American Progress,

Frequently Asked Questions About Gun Trafficking,

Gun Violence Prevention FAQs (Aug. 20, 2021), https://

www.americanprogress.org/article/frequently-askedquestions-gun-trafficking/. In short, if the opinion below

stands, it could open the door to similar cases from other

governments.

American firearms companies could be at risk of

bankruptcy if more cases like Mexico’s proceed. Mexico

seeks billions of dollars in damages. Pet.App.12a. To

provide perspective, many of the Petitioners’ annual net

profit is well below this amount. For example, in 2023:

Sturm, Ruger & Co. reported a net profit of $133.6 million.

Sturm, Ruger & Co., Annual Report (Form 10-K) (Feb.

22, 2023); Smith & Wesson Brands, Inc. reported a net

profit of $154.5 million. Smith & Wesson Brands, Inc.,

Annual Report (Form 10-K) (Jun. 22, 2023); Colt-CZ

15

(the parent company of defendant Colt’s Manufacturing

Company LLC) reported a net profit of $92.4 million. Colt

CZ Group, Colt CZ Group SE Increased Its Revenues to

CZK 14.9 Billion in 2023, (Mar. 26, 2024), https://tinyurl.

com/yc6322eb; and Beretta Holding reported an EBITDA

of approximately $302 million in 2022. Beretta Holding,

Beretta Holding: Strategic Investments Boost Financial

Results, https://tinyurl.com/467jtsab (last visited May 15,

2024).

Domestic weapons manufacture is a matter of national

security, as it has been since the Nation’s earliest days.

In President John Adams’s fourth annual address to

Congress in 1800, he stated, “The manufacture of arms

within the United States still invites the attention of

the National Legislature. At a considerable expense to

the public this manufacture has been brought to such

a state of maturity as, with continued encouragement,

will supersede the necessity of future importations from

foreign countries.” President John Adams, Fourth Annual

Message to the House of Representatives and the Senate

(Nov. 22, 1800). The opinion below puts American weapons

manufacturing as well as countless other industries at

risk.

In short, the practical consequences of the opinion

below are significant.

16

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Richard P. Hutchison

Landmark Legal

Foundation

3100 Broadway, Suite 1210

Kansas City, MO 64111

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal

Foundation

19415 Deerfield Ave.,

Suite 312

Leesburg, VA 20176

703-544-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae