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 AMICI CURIAE THE

AMERICAN CONSTITUTIONAL RIGHTS

UNION AND LTC ALLEN WEST (RET)

IN SUPPORT OF PETITIONERS

John J. Park, Jr.

Counsel of Record

for Amici Curiae

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

jackparklaw@gmail.com

116696

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The Mexican Government has sued leading members

of the American firearms industry, seeking to hold

them liable for harms inflicted by Mexican drug cartels.

According to Mexico, America’s firearms companies have

engaged in a series of business practices for decades—

from selling semi-automatic rifles, to making magazines

that hold over ten rounds, in failing to impose various

sales restrictions—that have created a supply of firearms

later smuggled across the border and ultimately used by

the cartels to commit crimes. Mexico asks for billions

of dollars in damages, plus extensive injunctive relief

imposing new gun-control measures in the United States.

The district court dismissed the case under the

Protection of Lawful Commerce in Arms Act (PLCAA),

which generally bars suits against firearms companies

based on criminals misusing their products. But the First

Circuit reversed. It held that PLCAA does not bar this suit

because Mexico stated a claim that defendants’ business

practices have aided and abetted firearms trafficking to

the cartels proximately harming the Mexican government.

The questions presented are:

1. Whether the production and sale of firearms in the

United States is the “proximate cause” of alleged injuries

to the Mexican government stemming from violence

committed by drug cartels in Mexico.

ii

2. Whether the production and sale of firearms in

the United States amounts to “aiding and abetting” illegal

firearms trafficking because some firearms companies

allegedly know that some of their products are unlawfully

trafficked.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

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

I.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. T he a c t ions of A mer ic a n f i re a r ms

manufacturers are not the proximate

cause of the harm Mexico alleges . . . . . . . . . . . . . 6

A. The proximate cause inquiry is focused

on the directness of the relationship

between the injury and the asserted

cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Mex ico’s cla i ms fa i l the t est of

proximate cause . . . . . . . . . . . . . . . . . . . . . . . 9

III. Factual and equitable considerations do

not favor Mexico’s lawsuit . . . . . . . . . . . . . . . . . . 10

iv

Table of Contents

Page

A. Operations Wide Receiver and Fast and

Furious show that the sellers of firearms

are aware of their obligations and

try to adhere to them . . . . . . . . . . . . . . . . . . 11

1.

Operation Wide Receiver . . . . . . . . . . . 13

2. Operation Fast and Furious . . . . . . . . 15

B. Mexico’s hands are not clean . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

v

TABLE OF CITED AUTHORITIES

Page

CASES

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Ashley County, Arkansas v. Pfizer, Inc.,

552 F. 3d 659 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . . 10

Bridge v. Phoenix Bond & Indem. Co.,

533 U.S. 639 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

City of Cleveland v.

Ameriquest Mortgage Sec. Inc.,

615 F. 3d 496 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 10

F. Hoffman La Roche Ltd. v. Empagran,

542 U.S. 155 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hemi Group LLC v. City of New York,

559 U.S. 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Hernandez v. Mesa,

140 S. Ct. 735 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Holmes v. SIPC,

503 U.S. 258 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

Lexmark, Intl. v. Static Control Components,

572 U.S. 118 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

vi

Cited Authorities

Page

McDonald v. Chicago,

130 S. Ct. 2030 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

New York State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES

15 U.S.C. § 78ff-2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

15 U.S.C. § 7901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

15 U.S.C. § 7901(a)((2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

15 U.S.C. § 7901(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

15 U.S.C. § 7901(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

15 U.S.C. § 7901(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S.C. § 7901(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S.C. § 7903(5)(A)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S.C. § 7903(5)(A)(iii)(II) . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C § 921 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

18 U.S.C. § 1961 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

vii

Cited Authorities

Page

RULES

Rule 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

OTHER AUTHORITIES

Dodson, John, The Unarmed Truth: My Fight to

Blow the Whistle and Expose Fast and Furious

(Threshold Editions 2013) . . . . . . . . . . . . . . . . . . . . . 12

Schweitzer, Peter, Blood Money: Why the Powerful

Turn a Blind Eye While China Kills Americans

(Harper Collins 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 18

U.S. Department of Justice, Office of the Inspector

General, A Review of ATF’s Operation

Fast and Furious and Related Matters

(Sept. 2012) . . . . . . . . . . . . . . . . 12, 13, 14, 15, 16, 17, 18

West, Allen, No Sera’ Infrigido (May 15, 2024) . . . . . . 18

1

INTEREST OF AMICI CURIAE

This brief of amici curiae is submitted by The

American Constitutional Rights Union (ACRU) and

Lieutenant Colonel Allen West (Ret.).1 The ACRU is a

nonpartisan, nonprofit legal policy organization formed

pursuant to Section 501(c)(3) of the Internal Revenue

Code dedicated to educating the public on the importance

of constitutional governance and the protection of our

constitutional liberties. The ACRU Policy Board sets the

policy priorities of the organization and includes some of

the most distinguished statesmen in the Nation on matters

of constitutional law. Current Policy Board members

include the 75th Attorney General of the United States

Edwin Meese III, and J. Kenneth Blackwell, the former

U.S. Ambassador to the United Nations Human Rights

Commission and Ohio Secretary of State.

LTC West is a constitutional conservative, an Army

combat veteran, and a former member of the U.S.

Congress, in which he represented Florida’s 22d District.

He is the Executive Director of the ACRU, where he

works with the projects to Protect Military Votes and the

Committee to Support and Defend. LTC West is a strong

supporter of the Second Amendment and believes that

the inherent rights it guarantees should not be infringed.

1. Counsel provided the notice required by Rule 37.2 more

than 10 days before the due date for the filing of this brief.

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amici Curiae or their counsel made a monetary contribution to

the brief ’s preparation or submission.

2

Amici strongly believe that the Second Amendment

rights of American citizens must be protected. The ACRU

and LTC West have put this belief into practice through

friend-of-the-court briefs including one in New York State

Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), and

in opinion pieces. This brief likewise reflects the ACRU’s

understanding that the rights protected by the Second

Amendment are not “second-class right[s].”McDonald v.

Chicago, 130 S. Ct. 2030, 2044 (2010).

SUMMARY OF ARGUMENT

Notwithstanding the provisions and intent behind

the Protection of Lawful Commerce in Arms Act, 15

U.S.C. §§ 7901, et seq., the Court of Appeals for the

First Circuit has allowed Mexico to sue American

firearms manufacturers seeking to change the way they

do business. This is not just an intrusion into America’s

sovereignty, it also infringes on the Second Amendment

rights of law-abiding American citizens.

The lawsuit should not be allowed to proceed

because the injuries to which Mexico points are not

proximately caused by the actions of America’s firearms

manufacturers and sellers. They are proximately caused

by criminals in Mexico. Furthermore, factual and

equitable considerations, including Mexico’s contributions

to fentanyl and Glock switch smuggling, counsel against

opening the American courts to Mexico’s claims.

3

ARGUMENT

I.

Introduction

The Protection of Lawful Commerce in Arms Act,

15 U.S.C. §§ 7901 et seq. (PLCAA), provides broad

protection to manufacturers and sellers of firearms from

lawsuits. Congress declared, “The Second Amendment

to the United States Constitution protects the right

of individuals, including those who were not members

of a militia or engaged in military service or training,

to keep and bear arms.” 15 U.S.C. § 7901(a)(2). That

constitutionally established right was threatened by

lawsuits against “manufacturers, distributors, dealers,

and importers of firearms” that sought “money damages

and other relief for the harm caused by the misuse of

firearms by third parties, including criminals.” 15 U.S.C.

§ 7901(a)(3). Those businesses “are not, and should not,

be liable for the harm caused by those who criminally

or unlawfully misuse firearm products or ammunition

products that function as designed.” 15 U.S.C. § 7901(a)

(5). More to the point, the lawsuits, which were directed

at the entire firearms industry, sought to

impos[e] liability . . . for harm that is solely

caused by others is an abuse of the legal

system, erodes confidence in our Nation’s

laws, threatens the diminution of a basis

constitutional and civil liberty, invites the

disassembly and destabilization of other

industries and economic sectors lawfully

competing in the free enterprise system of the

United States, and constitutes an unreasonable

burden on interstate and foreign commerce of

the United States.

4

15 U.S.C. § 7901(a)(6). Finally, such lawsuits “attempt

to use the judicial branch to circumvent the Legislative

branch of government to regulate interstate and foreign

commerce through judgments and judicial decrees thereby

threatening the Separation of Powers doctrine. . . . ” 15

U.S.C. § 7901(a)(8).

T he PLCA A a l low s for l i abi l it y i n l i m it e d

circumstances. For third parties like Mexico, a lawsuit

may proceed when (a) a manufacturer or seller “knowingly

violate[s] a State or Federal statute applicable to the

sale or marketing of the product, and the violation was a

proximate cause of the harm for which relief is sought”;

and (2) “the manufacturer or seller aided abetted, or

conspired with any other person to sell or dispose of a

qualified product knowing, or having reasonable cause

to believe that the actual buyer of the product” was not

authorized to do so. 15 U.S.C. § 7903(5) (A) (iii), (iii)(II).

Exceptions aside, this case squarely represents an

effort by Mexico to use the American courts to limit the

Second Amendment rights of American citizens. As it does

so, it runs afoul of the Separation of Powers embodied in

the Constitution of the United States. The lawsuit also

usurps the lawmaking power of Congress, which enacted a

prohibition of the manufacture and possession of a number

of semiautomatic weapons in 1994. That limitation expired

of its own terms in 2004 and has not been renewed since. If

any regulation is to come, it should come from Congress,

not the courts at the instigation of a foreign government.

In addition, the harm is suffered exclusively outside the

United States.

5

Amici note further that, in F. Hoffman La Roche Ltd.

v. Empagran, 542 U.S. 155 (2004), the Court held that the

antitrust laws of the United States do not reach “conduct

that is significantly foreign insofar as that conduct causes

independent foreign harm and that foreign harm gives

rise to the plaintiff ’s claim.” Id. at 166 (emphasis in

original). It suggested that the American remedy of treble

damages was behind the pursuit of the claim in American

courts. The Court explained, though, that “even when

nations agree about primary conduct, say, price fixing,

they disagree dramatically about appropriate remedies.”

Id. at 167. Allowing “independently injured foreign

plaintiffs to pursue private treble-damage remedies” in

American courts would frustrate the expectations and

practices of foreign governments. Id. at 168.

Like the antitrust plaintiffs in Empagran, Mexico

seeks to use the American courts to obtain compensation

for harm that occurs exclusively in Mexico. In so doing,

Mexico runs afoul of the “principles of prescriptive comity”

that support the Court’s ruling in Empagran. See id. at

169. The effect of allowing the lawsuit to proceed will be

to diminish and frustrate the constitutionally-protected

Second Amendment rights of American citizens. Mexico’s

lawsuit is, thus, a mirror image of what other countries

told the Court not to do in Empagran. Mexico should not

dictate to America what its policies should be.

In this brief, amici will first focus on the requirement

that proximate cause be pleaded and proven to establish

liability. Then, it will point to equitable considerations

that show the misguided nature of the underlying lawsuit.

6

II. The actions of American firearms manufacturers

are not the proximate cause of the harm Mexico

alleges.

A.

The proximate cause inquiry is focused on

the directness of the relationship between the

injury and the asserted cause.

Even if “[p]roximate cause . . . is a flexible concept that

does not lend itself to a black-letter rule that will dictate

the result in every case,” see Bridge v. Phoenix Bond

& Indem. Co., 533 U.S. 639, 546 (2008), some claims of

injury are more proximate in their relation to the injury

at issue than others. The proximate cause requirement

is “a demand for some direct relation between the injury

asserted and the injurious conduct alleged.” Holmes v.

SIPC, 503 U.S. 258, 268 (1992). Indeed, “it has been ‘a

well- established principle of [the common] law that in all

cases of loss, we are to attribute it to the proximate cause,

and not to any remote clause.’” Lexmark, Intl. v. Static

Control Components, 572 U.S. 118, 132 (2014) (brackets

in original).

Instead of black-letter law principles, the Court has

identified indicia that reliably indicate when a claim is

proximate to an injury.

In Holmes, the Court held that the Securities Investor

Protection Corporation (SIPC) could not sue stock brokerdealers alleged to have engaged in stock manipulation

under the federal Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. §§ 1961 et seq. It outlined

the reasons supporting a requirement of directness. The

Court noted, “[T]he less direct an injury is, the more

7

difficult it is to ascertain the amount of a plaintiff ’s

damages attributable to the violation, as distinct from

other, independent factors.” Id. at 269. Put differently,

the longer the chain of events, the greater the number of

causal influences. It pointed out that “recognizing claims

of the indirectly injured would force courts to adopt

complicated rules apportioning damages among plaintiffs

removed at different levels of injury from the violative

acts, to obviate the risk of multiple recoveries.” Id.

“[F]inally, the need to grapple with these problems is

simply unjustified by the general interest in deterring

injurious conduct” because those directly injured can

vindicate their own rights. Id. at 269-70.

The SIPC’s claims in Holmes failed the test. The

bad actors caused a loss for the customers that SIPC

purported to represent “only insofar as the stock

manipulation first injured the broker-dealers and left

them without the wherewithal to pay customers’ claims.”

Id. at 271. The directly injured insolvent broker-dealers

were seeking recovery through an action filed by their

liquidating trustees. The Court said that the SIPC had

to wait for the trustees’ lawsuit to conclude. At that time,

SIPC might recover according to the priorities set out in

the Security Investors Protection Act. Id. at 274 (citing

15 U.S.C. § 78ff-2(c)).

Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006),

is to similar effect. There, the Court said that a company

that allegedly did not charge its customers state sales tax

could not be sued under RICO by a competitor that said

it lost business as a result. As the Court explained, “The

direct victim of this conduct was the State of New York,

not Ideal.” Id. at 458. The causation chain was dizzyingly

complex and filled with non-criminal actions:

8

The injury Ideal alleges is its own loss of sales

resulting from National’s decreased prices

for cashpaying customers. National, however,

could have lowered its prices for any number

of reasons unconnected to the asserted pattern

of fraud. It may have received a cash inflow

from some other source or concluded that the

additional sales would justify a smaller profit

margin. Likewise, the fact that a company

commits tax fraud does not mean the company

will lower its prices; the additional cash could

go anywhere from asset acquisition to research

and development to dividend payouts.

Id. at 458-59. Likewise, Ideal’s sales may have lagged for

a variety of reasons. The Court observed, “Businesses

lose and gain customers for many reasons, and it would

require a complex assessment to establish what portion of

Ideal’s lost sales were the product of National’s decreased

prices.” Id. at 459. Finally, if tax fraud was really at issue,

the State of New York could take care of itself. Id. at 460.

In Hemi Group LLC v. City of New York, 559 U.S.

1 (2010), the Court held that an online cigarette seller’s

failure to report its sales to the City was not the proximate

cause of the City’s claim for lost cigarette tax revenues.

It concluded that the City’s “causal theory is far more

attenuated than the one we rejected in Holmes.” Id. at

9. The Court noted that, in Holmes, it “reiterated” that

“[t]he general tendency in the law, in regard to damages at

least, is not to go beyond the first step.” Id. at 10 (quoting

Holmes, 503 U.S. at 271-72). The City’s claim went from

Hemi’s failure to provide information to the State of New

York, which could not provide it to the City, which could

9

not collect tax revenue from consumers who did not pay

the taxes. Id. at 9; see also id. at 11 (“The City’s theory

thus requires that we extend RICO liability to situations

where fraud on the third party (the State) has made it

easier for a fourth party (the taxpayer) to cause harm to

the plaintiff (the City.”) (emphasis in original). The Court

stated, “We have never stretched the causal chain of a

RICO violation so far, and we decline to do so today.” Id.

B. Mexico’s claims fail the test of proximate

cause.

Mexico’s claims fail the test of proximate cause

because its causal chain is a multi-step process. Moreover,

the injury is actually suffered by others as the result

of criminal actions by different third parties acting

independently.

Mexico’s claims run from the American firearms

manufacturers through the distributors to the sellers.

From there, as Petitioners note, there are four stages of

alleged illegality: straw buyers make purchases; they or

their confederates smuggle the weapons into Mexico; those

weapons are sold to the cartels; and the cartels then use

them to kill and fight in Mexico. Petition for Certiorari,

at 21-22. That sequence involves seven steps before any

of the consequences Mexico identifies can occur. That,

simply, is too far downstream to be a proximate cause of

the underlying injury.

Viewed in this light, Mexico’s injuries are entirely

derivative. It seeks the cost of medical and healthcare,

something that is of issue only after the weapons have

been used. Mexico also seeks reimbursement for additional

10

costs related to police and its judiciary. Again, all of this

harm occurs at the end of the causation daisy-chain.

Moreover, the harm is actually committed by criminals

who use the weapons for malign purposes rather than in

the way they are intended. Such criminal actors break

the chain of causation. In Ashley County, Arkansas v.

Pfizer, Inc., 552 F. 3d 659 (8th Cir. 2009), the court said

the problem was not the sale of cold medicine, but the fact

that “the criminal actions of the methamphetamine cooks

and those further down in the illegal line of manufacturing

and distributing methamphetamine” more directly caused

the harm. Id. at 670. Similarly, in a lawsuit blaming banks

for the effects of the subprime lending market, the Sixth

Circuit noted first that, “the cause of the alleged harms is

a set of actions (neglect of property, starting fires, looting,

and dealing drugs) that is completely distinct from the

asserted misconduct (financing subprime loans). City of

Cleveland v. Ameriquest Mortgage Sec. Inc., 615 F. 3d

496, 504 (6th Cir. 2010). The homeowners who neglected

their property and criminals who set fires or looted were

the ones directly responsible for those harms. Id. at 505.

Mexico’s injuries are attributable to the cartels that

operate in Mexico. The illegal actions of the cartels are

the proximate cause of the damages Mexico claims.

III. Factual and equitable considerations do not favor

Mexico’s lawsuit.

In this portion of this brief, amici will show that

Mexico’s view of the sellers of weapons is flawed. Then, the

ACRU will show that Mexico is contributing to problems in

the United States. These factors counsel against opening

11

the courts of the United States to claims arising from

injuries that occur in Mexico. Cf. Hernandez v. Mesa,

140 S. Ct. 735 (2020) (No Bivens remedy for cross-border

shooting that killed a teenager in Mexico).

A.

Operations Wide Receiver and Fast and

Furious show that the sellers of firearms are

aware of their obligations and try to adhere to

them.

As Respondents would have it, the sellers of weapons

fail to carry out their mandated duties of monitoring

firearms transactions with the result that firearms

purchases by straw buyers result in the smuggling of

firearms into Mexico. In both Operations Wide Receiver

and Fast and Furious, though, federally licensed firearms

dealers informed the Bureau of Alcohol Tobacco &

Firearms (ATF) that suspected straw purchasers were

making questionable purchases. In Wide Receiver, the

ATF recruited the licensee as a confidential informant.

Two licensees cooperated with the ATF in Fast and

Furious. That cooperation went to nought even after

a number of firearms were sold, however, because

of defective strategy and performance of the federal

government agencies involved. Rather than looking at the

firearms dealers, Respondents should look at the federal

governmental apparatus that allowed firearms to make

their way into Mexico.

This position gains strength from the fact that the

firearms industry is heavily regulated by the federal

government. Pursuant to the Gun Control Act of 1968, 18

U.S.C. §§ 921, et seq., the ATF licenses and inspects gun

dealers. As the Department of Justice Office of Inspector

12

General noted, “ATF’s licensing process is intended to

insure that only qualified individuals receive a license

to sell guns.” U.S. Department of Justice, Office of the

Inspector General, A review of ATF’s Operation Fast

and Furious and Related Matters, at 10 (Sept. 2012) (IG

Report). 2 The federal firearms licensees are required to

keep records of their acquisitions and sales, and those

records are subject to inspection by ATF. Other records

for sales are completed by the licensee, the buyer, or both.

The buyer is further required to declare that he or she is

the “actual purchaser” of the weapon, not a straw buyer.

As John Dodson, an ATF agent who disclosed the Fast

and Furious operation to Congress, found, “My experience

before I got to Phoenix was that gun shop owners were

valuable sources of information. The ones I had known

were pretty sharp, patriotic, law-abiding small business

owners.” John Dodson, The Unarmed Truth: My Fight

to Blow the Whistle and Expose Fast and Furious, at 43

(Threshold Editions 2013). Dodson’s experience should

not be a surprise given the degree of ATF’s regulation of

the industry.

In the aftermath of Operations Wide Receiver and

Fast and Furious, the Department of Justice Inspector

General issued a report that criticized the Government’s

strategy and execution of those operations. In essence,

those operations took note of likely straw purchases, but

tried through surveillance and wiretaps to monitor those

straw purchasers without confronting them, in the hope

of rolling up the larger gun-smuggling operation.

2 . Av a i l a b l e a t h t t p s : // w w w. d o c u m e n t c l o u d . o r g /

documents/441887-ig-report-fast-and-furious.html

13

With respect to Fast and Furious, the IG Report

concluded,

What began as an important and promising

investigation of serious firearms trafficking

along the Southwestern Border that was

developed through the efforts of a short-staffed

ATF enforcement group quickly grew into an

investigation that lacked realistic objectives,

did not have appropriate supervision within

ATF or the U.S. Attorney’s Off ice, and

failed to adequately assess the public safety

consequences of not stopping or controlling the

alarming purchasing activity that persisted as

the investigation progressed.

IG Report at 209. The IG further criticized the pursuit of

wiretap warrants in Fast and Furious noting that “in the

months prior to and after the wiretap was in place, the

purchasing activity of Fast and Furious subjects continued

unabated, individuals who had engaged in serious and

dangerous criminal conduct remained at large, and the

public was put in harm’s way.” Id.

1.

Operation Wide Receiver

Operation Wide Receiver began after the owner of

a federal firearms licensee contacted the Tucson ATF

office and reported the likely purchase of six AR-15 lower

receivers by a suspected straw purchaser. That straw

purchaser, who was 18 years old and bought the weapons

with cash, asked about buying 20 more lower receivers.

The licensee agreed to make confidential recordings of his

dealings with the straw buyer and others. Id. at 31. With

14

the licensee’s help, the ATF monitored a later transaction,

but lost the driver of the weapons. Id. at 32-33.

As noted above, the licensee became a confidential

informant for the ATF. Id. at 35. The IG criticized that

arrangement, explaining, “Under the direction and control

of Tucson agents, the FFL [Federal firearms licensee] sold

large quantities of firearms to the Operation Wide Receiver

subjects despite clear evidence the purchases were illegal,

conduct that would have been itself prosecutable had he

not been working as a confidential informant. “ Id. at 84.

Some of the licensee’s transactions were done without any

monitoring or surveillance by ATF. Id. at 85.

The IG concluded that, in Operation Wide Receiver,

the ATF:

pu rsued an investigative strat eg y that

affirmatively authorized illegal firearms

sales to be made to straw purchasers and then

declined to arrest the straw purchasers or

to interdict and seize weapons despite ample

evidence that the purchases were illegal.

Evidence of illegality included the use of

heat-sealed bundles of cash to purchase large

quantities of firearms, open acknowledgment

by the subjects that they were purchasing the

weapons for others, and statements made to

the FFL that the firearms would be converted

to fully automatic weapons or transported to

Mexico. Instead, ATF allowed the purchases

to continue and conducted surveillance of

the buyers and load vehicles, with the goal of

identifying stash houses, trafficking routes,

15

and other participants in the conspiracies.

ATF Tucson and the ATF Phoenix Division

gave little or no consideration of the public

safety repercussions of allowing firearms to

be sold at the direction of the government that

were intended for use in Mexico by suspected

drug cartel members. This represented an

extraordinarily serious failure that resulted in

serious harm to the public, both in the United

States and Mexico.

Id. at 99-100 (emphasis added).

The IG noted that 474 weapons were purchased during

Wide Receiver, and that 410 of them were not interdicted.

Id. at 66. “Some of the firearms that were not interdicted

were later recovered in the United States and Mexico.”

Id. “[T]he vast majority of the firearms that were not

interdicted were purchased in transactions demonstrating

clear evidence of illegality.” Id. As noted above, that was

government-sanctioned illegality.

2.

Operation Fast and Furious

In late October 2009, a federal firearms licensee told

Phoenix ATF about recent sales of 19 AK-47 rifles to

suspected straw purchases. Id. at 109. Several weeks later,

the ATF had gathered enough background information

to open a criminal investigation which became Operation

Fast and Furious. Id. By that time, the pace of firearms

purchasing, and the number of individuals involved were

increasing. In November 2009, for example, five straw

purchasers bought 179 weapons for a cost of some $86,000.

Id

16

Once again, ATF did not plan to go after the straw

purchasers. Rather, “the approach was ‘to further

establish the structure of the organization and establish

illegal acts before proceeding to an overt phase.’” Id. at

115. That did not restrain the pace of the purchases by

straw buyers. Between February 1 and May 31, 2010, a

number of Fast and Furious subjects bought more than

600 weapons for more than $608,000. Id. at 161. During

the same period, more than 83 weapons purchased by

Fast and Furious subjects were recovered in the United

States and Mexico. Id.

Some of the weapons sold were recovered by authorities

other than the ATF. Police officers in Douglas, Arizona, on

the border with Mexico, recovered 40 firearms in a seizure,

8 of which had been purchased by a Fast and Furious

buyer. Id. at 117. A day after the Douglas seizure, Mexican

authorities recovered cocaine, methamphetamine, U.S.

currency and 48 weapons in Mexicali, Mexico; twenty of

those firearms had been purchased by Fast and Furious

buyers. Id. at 119. “According to an ATF report, Mexican

authorities believed the firearms were destined for the

Sinaloa Cartel to help replenish the loss of hundreds

of firearms to the Mexican government and to sustain

the drug cartel’s fight with a rival cartel.” Id. In two

subsequent seizures, Mexican authorities recovered 19

weapons, 6 of which had been purchased by one Fast and

Furious buyer. Id. at 120. Finally, police in El Paso, Texas

recovered 40 AK-47 style rifles that had been purchased

by the same buyer. Id.; see also id. at 198. 3

3. That buyer had a reported income of $4,479.00, but

purchased weapons for more then $135,000 in two transactions

later in the year. IG Report at 117.

17

As with Operation Wide Receiver, not all of the

weapons purchased by straw buyers were recovered. One

of the recoveries hastened the demise of the program. On

December 14, 2010, Customs and Border Agent Brian

Terry was killed in a firefight near Rio Rico, Arizona.

A Fast and Furious subject bought two of the weapons

recovered at the scene in January 2010. Id. at 190.

The licensees cooperated with ATF in a variety of

ways. First, they gave the ATF advance notice of some

purchases. Id. at 116-18. On several of those occasions,

ATF conducted surveillance of the buyers and tried to

follow them, sometimes without success, in the hope

of learning more about the organization. At times, the

licensees agreed to segregate the cash used for weapons

purchases so that ATF could bring in drug-detection

dogs. Id. at 228. For 8 months, one licensee used an ATFfurnished system for recording telephone calls, which the

licensee used 32 times. Id. at 229. ATF also asked the

second licensee to disable the firing pin of a weapon. Id.at

183. The IG found that these requests for cooperation “at

least inferentially suggested that it wanted the sales to

Fast and Furious subjects to continue.” Id.

Once again, the IG criticized ATF’s interaction with

its cooperating licensees. He explained, “We believe

the government’s request for substantial assistance

from the FFLs and statements to the FFLs that it was

monitoring the purchasers could have led the FFLs to

reasonably assume ATF was taking steps to prevent

the weapons’ unlawful transfers and might have caused

them to complete sales they otherwise would not have.”

Id. at 227. The IG “also found that the extent and nature

of the government’s requests for cooperation from FFL1

18

and FFL2 created at a minimum the appearance that

sales to particular Operation Fast and Furious subjects

were made with the government’s approval.” Id. at 229

(emphasis added).

Between October 2009 and December 2010, the most

active Fast and Furious subjects bought 1,961 weapons

for a total cost of $1,475,948. Id. at 203. By February 2012,

710 of those weapons had been recovered. Id. Twenty Fast

and Furious subjects were indicted by a federal grand jury

in January 2011. As of August 2012, 14 of those subjects

had entered pleas of guilty. Id. at 202.

B. Mexico’s hands are not clean.

LTC West has observed that Mexico “is freely

enabling drug, human, and sex trafficking into” the United

States. Allen West, No Sera’ Infrigido (May 15, 2024).4

It is inconceivable that it should be allowed to dictate to

American citizens what rights they have or do not have.

As Peter Schweitzer points out in Blood Money,

China has been using Mexico as a “borrowed knife” in

two respects. Peter Schweitzer, Blood Money: Why the

Powerful Turn a Blind Eye While China Kills Americans

(Harper Collins 2024) (“Blood Money”). First, much

of the fentanyl that is flowing into the United States is

manufactured in Mexico. Second, switches that turn

Glock handguns into automatic-fire weapons are being

manufactured in Mexico and shipped to the United States.

4. Available at https://theacru.org/2024/05/15/no-serainfringido/.

19

First, Schweitzer notes, “Fentanyl shipped through

Mexico is a ‘borrowed knife’ for China that can be wielded

against Americans while [China] claims that it is not their

weapon.” Blood Money at 5. He explains that China ships

the precursor chemicals for fentanyl into Manzanillo and

other Mexican ports that a Chinese entity runs. Id. at

24. “U.S. officials believe that 90 percent of the fentanyl

precursors are coming in through [Manzanillo]. It’s

little surprise that the port is a ‘crucial entry point for

fentanyl and methamphetamine precursor chemicals’

into the United States.” Id. Moreover, the Chinese triads

have partnered with cartel groups including Sinaloa and

Jalisco New Generation; “Fentanyl production proved to

be so lucrative that ‘El Chapo,’ the infamous head of the

Sinaloa cartel, quickly shifted from producing heroin and

cocaine to fentanyl.” Id. at 23.

Second, China has produced switches the size of

a penny that “convert standard Glock handguns into

fully automatic weapons capable of firing twenty rounds

per second.” Id. at 60. After American law enforcement

became more efficient at identifying incoming shipments

of switches in the mail, China moved to Mexico. From

there, switches are smuggled across the border, and drug

cartels in Mexico began to manufacture the switches

using Chinese supplied material. Id. at 62. As Schweitzer

observes, the move to Mexico is “a striking replay of the

Chinese government’s strategy with fentanyl: when US

authorities successfully began blocking shipments sent

from China via mail or parcel, Chinese sellers switched

to a land bridge in Mexico to continue supplying these

devices to criminals in the United States.” Id.

20

Even if China is the instigator, Mexico is being used

as a “borrowed knife” against the United States. Such

use hardly favors Mexico in the weighing of the equities.

CONCLUSION

For the reasons stated in the Petition and this brief of

amici curiae, this Court should grant the writ of certiorari

and, on review, reverse the decision of the First Circuit

Court of Appeals. Alternatively, this Court might take

Petitioners up on their suggestion that the First Circuit’s

ruling be summarily reversed.

Respectfully submitted,

John J. Park, Jr.

Counsel of Record

for Amici Curiae

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

jackparklaw@gmail.com