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

Supreme Court briefNov 27, 2024

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No. 23-1141

_________________________________________________

SMITH & WESSON BRANDS, INC., ET AL.,

Petitioners,

ESTADOS UNIDOS MEXICANOS,

Respondent.

_________________________________________________

On Writ of Certiorari to the U.S. Court of Appeals

for the First Circuit

_________________________________________________

BRIEF AMICUS CURIAE FOR

G. ANTAEUS B. EDELSOHN,

IN SUPPORT OF NEITHER PARTY

_________________________________________________

JOAN DEBORAH B. EDELSOHN

Counsel of Record*

460 Center Street

Unit 6045

Moraga, CA 94570

(415) 944-9509

SAGEPropertiesLLC09@gmail.com

*Counsel for Amicus Curiae

November 27, 2024

G. Antaeus B. Edelsohn

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST

OF AMICUS CURIAE ................................................ 1

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

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

The Government of Mexico is seemingly

arguing to rewrite the entire theory and

understanding of United States tort law, essentially

asking the Court to ignore explicit statutory

protections and established legal doctrine. .............. 3

1. The jurisprudential doctrines of remoteness

(lack of proximate causation) and free public

services argue strongly against a governmental

plaintiff, like Mexico, from being able to recover

under the type of tort action pled. ........................ 3

2. The U.S. tort system was not intended to

allow theories of liability when Congress grants

express statutory protections to businesses or

individuals engaging in specifically approved

conduct. .................................................................. 9

3. The business of making and physically

transferring firearms is heavily regulated in the

United States at both the federal and state level,

and compliance with those regulations should

fulfil substantive duties....................................... 12

4. Even discounting the protections of the

PLCAA, the complaint by Mexico seeks to base

liability solely on foreseeability and completely

ignores the legal principle of superseding causes

of injury, substituting ‘but-for’ causation for

proximate causation. ........................................... 15

5. Mexico’s theory of liability would be risible if

applied to other industries which sell ‘dangerous

products,’ like vehicles......................................... 19

II.

Mexico’s arguments and requested relief

would functionally work to usurp both the power of

Congress and state legislatures to determine what

firearms may legally be sold on the civilian market,

and the power of the executive branch and the law

enforcement agencies which implement and enforce

firearms laws. .......................................................... 22

III. Mexico is essentially seeking to use U.S.

courts and the U.S. tort system to abrogate its

responsibility to run and manage its own domestic

and border security. ................................................. 25

1. Mexico seeks to escape and abrogate

culpability for decades of corruption which have

seen its own actual military weapons be directed

to cartels. .............................................................. 27

2. Mexico seeks to ascribe liability to American

manufacturing firms for its own failed policies to

address domestic criminality and secure its own

side of the border. ................................................ 29

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ............................................... 16

Associated General Contractors of Calif., Inc. v.

California State Council of Carpenters,

459 U.S. 519, 532–33 n.25 (1983) ........................... 4

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ............................................... 16

Camden County Bd. v. Beretta, U.S.A,

273 F.3d 536 (3d Cir. 2001) .................................... 8

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

821 N.E.2d 1099 (Ill. 2004) ..................................... 7

City of Flagstaff v. Atchison, Topeka and Santa Fe

Railway Co.

719 F.2d 322, 323 (9th Cir. 1983) ........................... 6

City of Gary v. Smith & Wesson Corp.,

801 N.E.2d 1222 (Ind. 2003) ................................... 7

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

277 F.3d 415 (3d Cir. 2002) .................................... 8

County of San Luis Obispo v. Abalone Alliance,

178 Cal.App.3d 848 (Cal. Ct. App. 1986) ............... 5

District of Columbia v. Air Florida, Inc.,

750 F.2d 1077 (D.C. Cir. 1984) ........................... 6, 8

Foster v. United States,

303 U.S. 118 (1938) ................................................. 9

Ganim v. Smith & Wesson Corp., No. X06 CV

990153198S, 1999 Conn. Super. LEXIS 3330

(Dec. 10, 1999), aff’d, 780 A.2d 98 (Conn. 2001) .... 7

Hess v. Pawloski,

274 U.S. 352 (1927) ............................................... 19

Holmes v. Sec. Investor Prot. Corp.,

503 U.S. 258, 268 (1992) ......................................... 4

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ................................................... 8

Marbury v. Madison,

5 U.S. 137 (1803) ................................................... 22

Milavetz, Gallop & Milavetz, P. A. v. United States,

559 U.S. 229 (2010) ............................................... 10

Milner v. Dep’t of the Navy,

562 U.S. 562 (2011) ............................................... 10

Morial v. Smith & Wesson Corp.,

785 So. 2d 1 (La. 2001) ............................................ 7

Nanni v. Aberdeen Marketplace, Inc.,

878 F.3d 447 (4th Cir. 2017) ................................. 16

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250 (4th Cir. 2009) ................................. 16

Penelas v. Arms Technology, Inc.,

778 So. 2d 1042 (Fla.App. 2001) ....................... 8, 22

Printz v. United States,

521 U.S. 898 (1997) ............................................... 25

Pulka v Edelman,

40 N.Y.2d 781 (N.Y. 1976) .................................... 15

Spitzer v. Sturm, Ruger Company, Inc.,

309 A.D.2d 91 (N.Y. App. Div. 2003) ................ 7, 23

Strauss v. Belle Realty Co.,

65 N.Y.2d 399 (N.Y. 1985) .................................... 15

Youngberg v. Romeo,

457 U.S. 307 (1982) ................................................. 6

Case Materials

Brief of Respondent-Plaintiff in Opposition

(Jul. 03, 2024) ........................................................ 11

Petitioner-Defendants’ App.

(April 18, 2024) .............................................. passim

Question Presented, Smith & Wesson Brands v.

Estados Unidos Mexicanos,

No. 23-1141 (U.S. Oct. 4, 2024) ............................ 12

Governmental Materials

ATF Form 5630.7, Special Tax Registration and

Return .................................................................... 13

Revocation of Firearms Licenses, ATF,

https://www.atf.gov/firearms/revocation-firearmslicenses ............................................................. 13, 14

Statutes and Regulations

15 U.S.C. § 7901(b)(1) and (4)................................... 10

18 U.S.C. § 921(a)(3)–(8) ........................................... 23

22 U.S.C. § 2778(b)(1)(A) .......................................... 13

27 C.F.R. § 447 .......................................................... 23

27 C.F.R. § 478 .......................................................... 23

27 C.F.R. § 478.73(a) (2003) ..................................... 13

27 C.F.R. § 478.73(a) (2023) ..................................... 13

27 C.F.R. § 479 .......................................................... 23

27 C.F.R. § 555 .......................................................... 23

803 MASS. CODE. REGS. 10.09 ................................... 14

CAL. PENAL CODE §§ 30500–31115 ........................... 23

MASS. GEN. LAWS ch. 140, §§ 122–122B, 128B .. 14, 23

Pub. L. No. 103–159, 107 Stat. 1536 (1993) ............ 23

Pub. L. No. 117–159, 136 Stat. 1313 (2022) ............ 23

Pub. L. No. 73-474, 48 Stat. 1236 (1934) ................. 23

Pub. L. No. 90-618, 82 Stat. 1213 (1968) ................. 23

Pub. L. No. 99–308, 100 Stat. 449 (1986) ................ 23

Congressional Materials

151 Cong. Rec. H8993 (daily ed. Oct. 20, 2005) ....... 11

151 Cong. Rec. H8997 (daily ed. Oct. 20, 2005) ....... 11

151 Cong. Rec. S9061 (daily ed. July 27, 2005) . 10, 11

151 Cong. Rec. S9062 (daily ed. July 27, 2005) ....... 11

Treatises

W. PAGE KEETON ET AL., PROSSER AND KEETON ON

THE LAW OF TORTS § 53 (5th ed. 1984) .................. 12

Other Authorities

Andrew L. Kaufman, Benjamin Cardozo as

Paradigmatic Tort Lawmaker,

49 DEPAUL L. REV. 281 (1999) .......................... 3, 16

Compare State Gun Laws, EVERYTOWN RESEARCH &

POLICY,

https://everytownresearch.org/rankings/compare/

(last visited Nov. 21, 2024) ................................... 24

Daniel Shailer, 9 years later, families of 43 missing

Mexican students march to demand answers in

emblematic case, AP (Sept. 26, 2023),

https://apnews.com/article/ayotzinapa-obradormarch-dissapearing-protest-guerrero411f9f467a22080095c0ae301586904c .................. 30

David L. Strauss, Comment, Where There’s Smoke,

There’s the Firefighter’s Rule: Containing the

Conflagration After One Hundred Years,

1992 WIS. L. REV. 2031 (1992) ................................ 6

Elías Camhaji, ‘Mexico is not safe’: Ken Salazar

takes hardest stance yet on violence crisis, EL PAIS

(Nov. 14, 2024),

https://english.elpais.com/international/2024-1114/mexico-is-not-safe-ken-salazar-takes-hardeststance-yet-on-violence-crisis.html ........................ 26

Embassy Mexico, Mexican Army Major Arrested For

Assisting Drug Trafficking Organizations,

WikiLeaks Cable: 09MEXICO133_a

(Jan. 20, 2008),

https://wikileaks.org/plusd/cables/09MEXICO133

_a.html ................................................................... 28

Fidel Gutierrez, Former attorney general of Mexico

arrested over multiple charges related to

disappearance of 43 students,

CNN (Aug. 19, 2022),

https://www.cnn.com/2022/08/19/americas/jessmurillo-karam-mexico-missing-students-intllatam/index.html ................................................... 27

vii

GEORGE W. GRAYSON, THE IMPACT OF PRESIDENT

FELIPE CALDERÓN’S WAR ON DRUGS ON THE

ARMED FORCES: THE PROSPECTS FOR MEXICO’S

“MILITARIZATION” AND BILATERAL RELATIONS

(2013) ..................................................................... 29

INSTITUTO NACIONAL DE ESTADÍSTICA, GEOGRAFÍA E

INFORMÁTICA, RESULTADOS DE LA SEGUNDA

ENCUESTA NACIONAL DE CALIDAD E IMPACTO

GUBERNAMENTAL (ENCIG) 2013 (2014) ............... 28

INT’L ASS’N OF CHIEFS OF POLICE, VEHICLE CRIMES

AUTO THEFT EDUCATIONAL AWARENESS REPORT

(2017) ..................................................................... 20

INT’L CRISIS GROUP, THE GENERALS’ LABYRINTH:

CRIME AND THE MILITARY IN MEXICO (2024) ......... 30

JANET SMILOWSKI ET AL., AUTO THEFT AND VEHICLE

CRIMES 2020 TRENDS AND PATTERNS (2021) ......... 20

Julio Montes, Portable Anti-Tank Weapons in

Mexico & the Northern Central American

Triangle, SMALL

ARMS DEFENSE JOURNAL (Aug. 15, 2023),

https://sadefensejournal.com/portable-anti-tankweapons-in-mexico-the-northern-centralamerican-triangle/ ................................................. 29

Kevin Daimi et al., Using Multimodal Biometrics to

Secure Vehicles, in ADVANCES IN SECURITY,

NETWORKS, AND INTERNET OF THINGS (2021) ....... 21

María Verza, US ambassador says Mexico ‘closed the

doors’ on security cooperation and denies its

violence problem, AP (Nov. 13, 2024),

https://apnews.com/article/mexico-sinaloa-cartelviolence-bodies02e0c9a499e9605291f3ba5a2f9e6f4d ................... 26

Michael I. Krauss, Public Services Meet Private

Law, 44 San Diego L. Rev. 1 (2007) ................... 5, 6

Nat'l Ins. Crime Bureau, Vehicle Thefts Surge

Nationwide in 2023, NICB (April 9, 2024),

https://www.nicb.org/news/news-releases/vehiclethefts-surge-nationwide-2023 ............................... 20

viii

Prieto-Curiel et al., Reducing cartel

recruitment is the only way to lower violence in

Mexico, 381 SCIENCE 1312 (2023) ......................... 29

Scott Neuman, Mexican Authorities Disarm

Acapulco Police, Fearing Infiltration By Drug

Gangs, NPR

Rafael

(Sept. 26, 2018),

https://www.npr.org/2018/09/26/651708030/mexic

an-authorities-disarm-acapulco-police-amidinfiltration-concerns-by-drug-ga .......................... 28

Sharyl Attkisson, A primer on the "Fast and

Furious" scandal, CBS (Feb. 12, 2013),

https://www.cbsnews.com/news/a-primer-on-thefast-and-furious-scandal/ ...................................... 18

Sharyl Attkisson, Legal U.S. gun sales to Mexico

arming cartels, CBS (Dec. 6, 2011),

https://www.cbsnews.com/news/legal-us-gunsales-to-mexico-arming-cartels/ ............................ 28

Simon Romero & Emiliano R. Mega, Mexico’s

‘Monster’ Trucks Show Cartels Taking Drug War

to Next Level, NY TIMES (Aug. 1, 2023),

https://www.nytimes.com/2023/08/01/world/ameri

cas/mexico-cartels-trucks.html ............................. 22

State Ignition Interlock Laws, NCSL (Mar. 14,

2024), https://www.ncsl.org/transportation/stateignition-interlock-laws .......................................... 21

Timothy D. Lytton, Should Government Be Allowed

to Recover the Costs of Public Services from

Tortfeasors: Tort Subsidies, the Limits of Loss

Spreading, and the Free Public Services Doctrine,

76 TUL. L. REV. 727, 746 n.9 (2002) ........................ 4

Victor E. Schwartz, The Remoteness Doctrine: A

Rationale for a Rational Limit on Tort Liability,

27 PEPP. L. REV. 759 (2000) .................................... 4

IDENTITY AND INTEREST OF AMICUS CURIAE

G. Antaeus B. Edelsohn respectfully submits this

brief in support of neither party.1 Mr. Edelsohn is a

licensed attorney in California, Vermont, and the

District of Columbia. As an officer of the court, Mr.

Edelsohn has a keen interest in the fair, just, and

equitable use of the American court system to address

tort issues and disputes between aggrieved parties.

Mr. Edelsohn is especially interested in preventing

the abuse of accessibility of the American court

system by plaintiffs who seek either to bully an

opposing party with unreasonable litigation or even

worse, seek to arrogate to themselves powers which

are exclusively held by the legislative and executive

branches at the federal and state levels. Preventing

such abuses is even more important in situations

where foreign plaintiffs would seek to batter and

harass American companies under a theory that their

foreign status conveys greater rights than a similarly

situated American plaintiff would be afforded.

Given the scope of Plaintiff’s claims, allowing this

case to proceed will not only have a profoundly

negative impact on American tort law, but will also

have knock-on effects in the scope of international

relations and the ability of litigants to circumvent the

authority of federal and state governments.

Accordingly, Mr. Edelsohn feels compelled to offer this

In accordance with Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no person other

than amicus curiae or his counsel made a monetary

contribution to its preparation or submission.

legal analysis to the Court as it fully evaluates the

issues which are directly and indirectly being raised,

and urges the Court to rule in accordance with

America’s history and tradition of tort liability.

SUMMARY OF ARGUMENT

No one disputes the tragedy of the violence,

death, and destruction caused by the numerous

Mexican cartels, which has affected communities on

both sides of the U.S./Mexican border. Similarly, none

of the parties in this case, and no one outside it with

a respect for law, order, or basic humanity, is

advocating in favor of criminal activity or the arming

of violent criminal organizations. Any statements to

the contrary are simply ad hominem and distract from

the fundamental legal issues and governmental policy

concerns which Plaintiff’s suit raises.

This brief emphasizes the weight of American

legal tradition and jurisprudential doctrines and

argues that a decision allowing Mexico’s claims to

proceed would run counter to that history and

tradition, effectively rewriting tort law as we know it.

This brief also addresses the practical implications of

what allowing Mexico’s suit forward would have on

authority of U.S. governments and the balance of

power between litigants and legislatures. Finally,

this brief argues that foreign plaintiffs should not be

allowed to use the U.S. tort system to evade

responsibility for their own domestic failings.

This brief is not meant as support or rebuke for

any specific law or set of laws at any level; but is

instead aimed at preserving the rights and powers of

American institutions against the interference of a

foreign sovereign.

ARGUMENT

The Government of Mexico is seemingly

arguing to rewrite the entire theory and

understanding of United States tort law, essentially

asking the Court to ignore explicit statutory

protections and established legal doctrine.

In the case presently before the Court, as in

most cases which involve serious injury and death to

innocent people, there is always going to be tension

between the emotions which tragic events evoke and

the limits of what tort law and the legal system permit

regarding restitution or future restrictions. While

some areas of law, like equity cases, seek to provide

“justice . . . to be done on an individual basis,” in the

realm of torts, “justice [is] done by crafting a just rule,

applying it impartially to the relevant facts, and

accepting the results, whether seemingly harsh or

not.”2 This case is about the application of just and

consistent rules to the tort landscape, even though the

results might seem harsh in light of the tragic

suffering of innocent Mexican civilians.

1. The jurisprudential doctrines of remoteness (lack

of proximate causation) and free public services

argue strongly against a governmental plaintiff,

like Mexico, from being able to recover under the

type of tort action pled.

In dealing with causes of action where a

governmental entity targets a private business based

in tort law, the American legal tradition generally

Benjamin Cardozo as Paradigmatic

Tort Lawmaker, 49 DEPAUL L. REV. 281, 282–83 (1999)

2 Andrew L. Kaufman,

(paraphrasing Justice Benjamin Cardozo).

uses two doctrines to help evaluate the merit of such

claims; the remoteness doctrine, and the free public

services doctrine. While either doctrine, and the

lengthy precedential scope which has been built on

upon its use, should be sufficient to foreclose Mexico’s

cause of action, any decision which undercuts both

doctrines simultaneously would bring a sea-change to

the nation’s tort landscape.

As this Court has recognized, any recovery in a

suit brought under the theory of tort necessarily

requires proximate causality, viz. “a demand for some

direct relation between the injury asserted and the

injurious conduct alleged.” Holmes v. Sec. Investor

Prot. Corp., 503 U.S. 258, 268 (1992). Absent that

direct and close connection between the defendant's

acts and a plaintiff’s harms, this Court has found the

plaintiff “stand[s] at too remote a distance to recover.”

Id. at 268–69. This makes abundant sense as “the

more indirect an injury is, the more difficult it is to

determine the amount of the plaintiff’s injury due to

the wrongdoing of the defendant, as distinct from

other contributing factors.”3 Noted authority on tort

law, Victor Schwartz, has highlighted over 150 years

of positive treatment of this principle in U.S. courts,

including in this Court.4 See Associated General

Contractors of Calif., Inc. v. California State Council

of Carpenters, 459 U.S. 519, 532–33 n.25 (1983)

(positively citing a legal treatise holding “where the

Should Government Be Allowed to

Recover the Costs of Public Services from Tortfeasors: Tort

Subsidies, the Limits of Loss Spreading, and the Free

Public Services Doctrine, 76 TUL. L. REV. 727, 746 n.9

3 Timothy D. Lytton,

(2002).

See Victor E. Schwartz, The Remoteness Doctrine: A

Rationale for a Rational Limit on Tort Liability, 27 PEPP.

L. REV. 759 (2000).

plaintiff sustains injury from the defendant’s conduct

to a third person, [the plaintiff’s claim] is too remote”

to recover.) (emphasis in original).

The other component of the remoteness

doctrine, beyond the connection between the action

done and any harm alleged by the plaintiff, is the

existence of a duty owed from the defendant to the

plaintiff. See County of San Luis Obispo v. Abalone

Alliance, 178 Cal.App.3d 848, 865 (Cal. Ct. App. 1986)

(“Whether intentional or negligent, a tort ‘involves a

violation of a legal duty, imposed by statute, contract

or otherwise, owed by the defendant to the person

injured. Without such a duty, any injury is ‘damnum

absque injuria’—injury without wrong.”). Any theory

of negligence, either common-law or statutory, must

be premised on a duty owed by the defendant to the

plaintiff, and the defendant’s failure to fulfil that

duty. When the defendant is a governmental entity,

the issue of duty overlaps with what is known as the

free public services doctrine.

The free public services doctrine has long

existed in our nation’s jurisprudence, limiting the

scope to which governmental entities, including local,

state, and even federal, can sue tortfeasors for

incurring costs for the use of public services. This is

because “tortfeasors do not owe any legal duty to the

providers of government services,” and “the discharge

of government services does not constitute

proximately caused compensable damages.”5 An

archetypal example of this is a fireman who gets

injured while fighting a fire caused by a negligent

homeowner; he has no claim against the homeowner

because the homeowner has no duty to a firefighter

5 Michael I. Krauss,

Public Services Meet Private Law, 44

San Diego L. Rev. 1, 7–8 (2007).

responding to a fire.6 At the federal level, one of the

most common examples of the free public services

doctrine in action is District of Columbia v. Air

Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984), where

the D.C. Circuit affirmed that Air Florida had no duty

to the District of Columbia for the dispatch of

emergency services which responded following its

plane crashing into a D.C. bridge. The D.C. Circuit

ruled “the cost of public services for protection from

fire or safety hazards is to be borne by the public as a

whole, not assessed against the tortfeasor whose

negligence creates the need for the service.” Id. at

1080 (quoting City of Flagstaff v. Atchison, Topeka

and Santa Fe Railway Co. 719 F.2d 322, 323 (9th Cir.

1983).). Stated differently, a “government’s selfimposed duty to provide rescue services without later

suing for compensation, and the negligent citizen’s

lack of duty to refrain from non-maliciously using

government services, are two sides of the same coin.”7

This Court has already held “[a]s a general matter,

the State is under no constitutional duty to provide

substantive services for those within its border.”

Youngberg v. Romeo, 457 U.S. 307, 317 (1982). As a

result, the costs of governmental services which a

government does choose to provide, are noncompensable in the context of a tort action against a

tortfeasor

whose

negligence

predicated

the

government’s decision to provide such services.

In the context of the present case against

Petitioners, Mexico’s own pleadings run headlong into

the brick wall of both doctrines. First, Mexico

See David L. Strauss, Comment, Where There’s Smoke,

There’s the Firefighter’s Rule: Containing the

Conflagration After One Hundred Years, 1992 WIS. L. REV.

2031 (1992).

Krauss, at 9.

acknowledges the significant extent of the remove

between Petitioners and any Mexican citizens who are

victims of cartel violence due to the use of a three tier

distribution model (see infra, part I.4.), and none of

the Petitioners sell weapons directly to common

consumers (non-governmental entities)—this does not

even account for the remove between the individual

Mexican citizens and the government of Mexico, the

actual plaintiff.8 Second, Mexico claims damages as a

result of having “to spend vast funds on a wide range

of services to fight the effects” of cartel violence, which

“has strained the Government’s resources, including

by causing the Government to incur substantial and

unusual costs for providing, for example,

extraordinary health care, law enforcement and

military and services, criminal justice administration,

public assistance, and other social services and public

programs.”9 This claim of damages is exactly in the

ambit of what the free public services doctrine

excludes from recovery, and is essentially identical to

other cases which courts have dismissed on the same

basis.10 This Court should also note the D.C. Circuit’s

8 Petitioner-Defendants’ App. at 140a ¶ 378 (April 18, 2024)

Id. at 167a ¶ 447 (April 18, 2024). The complaint lists a

range of expenditures on different services and the fact

those expenditures result in less money being available for

other government programs or services. Id. at 167a–68a ¶

448..

10 See Ganim v. Smith & Wesson Corp., No. X06 CV

990153198S, 1999 Conn. Super. LEXIS 3330, at *4 (Dec.

10, 1999), aff’d, 780 A.2d 98 (Conn. 2001); City of Gary v.

Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003);

Morial v. Smith & Wesson Corp., 785 So. 2d 1 (La. 2001);

City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099

(Ill. 2004); Spitzer v. Sturm, Ruger Company, Inc., 309

A.D.2d 91 (N.Y. App. Div. 2003); Camden County Bd. v.

comment about the allocation of costs for supporting

broad social services “through assessing taxpayers.”

Air Florida, 750 F.2d at 1080. This seems particularly

poignant in light of the fact it is U.S. taxpayers who

have been responsible for footing a bill of “over $3

Billion in assistance since 2008 to address

transnational organized crime and violence in Mexico,

[and] enhance the country’s rule of law.”11

A ruling which would allow Mexico’s theory of

tort liability to proceed will almost certainly open (or

reopen) a floodgate of litigation by similarly situated

plaintiffs who are currently outside the scope of

recovery under the existing framework of proximate

causality. Moreover, any such litigation against a

socially polarizing defendant, like Petitioners, allowed

to proceed, would almost certainly only serve as a

referendum on the social acceptability of the

defendant according to local political and social

discourse, instead of a simple finding of fact along

clearly delineated legal principles.

Cf. Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988)

(“‘Outrageousness’ in the area of political and social

discourse has an inherent subjectiveness about it

which would allow a jury to impose liability on the

basis of the jurors' tastes or views, or perhaps on the

basis of their dislike of a particular expression.”). The

D.C. Circuit was “especially reluctant to reallocate

risks where a governmental entity is the injured

Beretta, U.S.A, 273 F.3d 536 (3d Cir. 2001); City of

Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir.

2002); Penelas v. Arms Technology, Inc., 778 So. 2d 1042

(Fla.App. 2001).

11 GAO, U.S. ASSISTANCE TO MEXICO: STATE DEPARTMENT

SHOULD TAKE STEPS TO ASSESS OVERALL PROGRESS 1

(2023).

party.”12 The instant case should prompt similar

reluctance in this Court.

2. The U.S. tort system was not intended to allow

theories of liability when Congress grants express

statutory protections to businesses or individuals

engaging in specifically approved conduct.

Tort law is derived from the common-law

tradition of resolving disputes involving injuries or

other harms between private parties not in privity.

While American tort law is generally quite

accommodating to plaintiffs, seeking to provide

deterrence, accountability, and compensation where

harms have or could be done, in some instances,

broader policy concerns lead governments to foreclose

certain types of claims by providing legislative

protections. Such is the case here, with the Protection

of Lawful Commerce in Arms Act (PLCAA),13 though

it is by no means the only instance of federal

protections being broadly extended.14

While the parties and other Amici will no doubt

thoroughly parse the text of the PLCAA, I believe it

would be instructive to briefly review the Act’s

history, specifically as to the purpose for which its

drafters and sponsors sought its passage. This Court

has spoken multiple times on the importance of

interpreting and applying laws in accordance with the

legislative intent of their drafters, even where a

statute appears unambiguous. See Foster v. United

States, 303 U.S. 118, 120 (1938) (“Courts should

Air Florida, Inc., 750 F.2d at 1080.

13 Pub. L. No. 109-92, 119 Stat. 2095 (2005).

See, e.g. KEVIN M. LEWIS, CONG. RES. SERV., FEDERAL

LEGISLATION SHIELDING BUSINESSES AND INDIVIDUALS

FROM TORT LIABILITY: A LEGAL AND HISTORICAL

OVERVIEW (2020).

construe laws in harmony with the legislative intent

and seek to carry out legislative purpose.”); Milner v.

Dep’t of the Navy, 562 U.S. 562, 572 (2011) (“[C]lear

evidence of congressional intent may illuminate

ambiguous text.); and Milavetz, Gallop & Milavetz, P.

A. v. United States, 559 U.S. 229, 236 n.3 (2010)

(“Although reliance on legislative history is

unnecessary in light of the statute’s unambiguous

language, we note the support that record provides for

the Government’s reading.”). Though a review of the

text of the PLCAA strongly argues against any

ambiguity,15 an examination of the Congressional

Record is nevertheless beneficial.

The record clearly reflects the intent of what

Congress was seeking to do with the PLCAA, and can

be succinctly addressed by the words of its initial

sponsor, Senator Larry Craig (ID): “The courts of our

Nation are supposed to be a forum for resolving

controversies between citizens and providing relief

where it is warranted, not a mechanism for achieving

political ends that are rejected by the people's

representatives, the Congress of the United States.”16

Members of the House of Representatives were

equally clear about describing the threats the PLCAA

was meant to address, with Congressman Jim

15 The “Purposes” section of the act states the law was to

“prohibit causes of action against manufacturers,

distributors, dealers, and importers of firearms or

ammunition products, and their trade associations, for the

harm solely caused by the criminal or unlawful misuse of

firearm products or ammunition products by others when

the product functioned as designed and intended,” and to

“prevent the use of such lawsuits to impose unreasonable

burdens on interstate and foreign commerce.”

15 U.S.C. § 7901(b)(1) and (4).

16 151 Cong. Rec. S9061 (daily ed. July 27, 2005).

Sensenbrenner (WI) stating the fear that “[o]ne

abusive lawsuit filed in a single county could destroy

a national industry and deny citizens nationwide the

right to keep and bear arms guaranteed by the

Constitution,”17 and Congressman Rick Boucher (VA)

pointing out “[t]he lawsuits against the firearms

industry are nothing more than thinly veiled attempts

to circumvent the legislative process and achieve gun

control through litigation.”18

Mexico’s attempt to point to instances in the

Congressional Record where Senators emphasized the

bill would still allow for legitimate suits based on

actual negligence or criminality is not only inapposite,

but fundamentally misleading.19 Unlike what Mexico

would have this Court believe, the statements

assuring that firearms manufacturers would not have

blanket immunity for any misdeeds or harms, were

made to address the few but vociferous voices who

erroneously believed the proposed legislation granted

greater protections than it actually did.20 The purpose

of the legislation though, as clearly stated by one of its

cosponsors, Senator Tom Coburn (OK), was “to put a

stop to the unmeritorious litigation that threatens to

bankrupt a vital industry in this country.”21

This case is precisely the type of litigation this

statute was designed to prevent, and shows

Congressman

Sensenbrenner’s

concerns

were

undoubtedly justified. Moreover, as the Court’s order

granting certiorari recognizes, “Mexico asks for

17 151 Cong. Rec. H8993 (daily ed. Oct. 20, 2005).

Id. at H8997.

19 Brief of Respondent-Plaintiff in Opposition at 8 (Jul. 03,

2024).

See generally, 151 Cong. Rec. S9061–62 (daily ed. July

27, 2005).

21 Id. at S9062.

billions of dollars in damages, plus extensive

injunctive relief imposing new gun-control measures

in the United States.”22 Any argument that this is

anything other than an attempt by an opportunistic

Plaintiff seeking a big payday while circumventing

federal law simply does not pass muster—and this

case should not be the test bed for turning

conventional judicial wisdom on its head.

3. The business of making and physically

transferring firearms is heavily regulated in the

United States at both the federal and state level,

and compliance with those regulations should fulfil

substantive duties.

In his analysis of tort law, William Prosser

notably described duty as “a question of whether the

defendant is under any obligation for the benefit of the

particular plaintiff; and in negligence cases, the duty

is always the same—to conform to the legal standard

of reasonable conduct in the light of the apparent

risk.”23 More succinctly, duty is “a question of the

standard of conduct required” by the defendant.24

Despite what the government of Mexico would have

this Court believe, the business of making and

physically transferring firearms is heavily regulated

in the U.S., at both the federal and state levels. Any

person or entity seeking to engage in the business of

firearms, like the eight Petitioners, is required at a

minimum to apply for and be granted a Federal

Firearms License (FFL), a state business license to

deal with firearms, and to comply with local business

22 Question Presented, Smith & Wesson Brands v. Estados

Unidos Mexicanos, No. 23-1141 (U.S. Oct. 4, 2024).

23 W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE

LAW OF TORTS § 53, at 356 (5th ed. 1984).

Id.

and zoning laws. Any person or entity seeking to deal

in anything covered by the National Firearms Act

(including machine guns, short-barreled shotguns,

silencers, destructive devices, etc.), is also required to

complete additional paperwork and pay a special

occupational tax.25 Generally, any FFL holder who

seeks to engage in the manufacture of weapons must

manufacturer, and in the case of businesses which

will export firearms, like Petitioners, must also

(DDTC), as required by Arms Export Control Act.26

As the federal agency in charge of issuing FFLs

and regulating the firearms industry, the federal

Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF) also has the power to revoke licenses, in

addition to helping the DOJ bring criminal charges, of

licensees who violate the law. Federal regulation

clearly states, “[w]henever the Director has reason to

believe that a licensee has willfully violated any

provision of the Act or this part, a notice of revocation

of the license . . . may be issued.”27 The ATF website

provides guidance on what are willful violations,

including: “(1) Transferring a firearm to a prohibited

person; (2) Failing to conduct a required background

check; (3) Falsifying records, such as a firearms

transaction form; (4) Failing to respond to a trace

request; [and] (5) Refusing to permit ATF to conduct

See ATF Form 5630.7, Special Tax Registration and

Return.

26 22 U.S.C. § 2778(b)(1)(A).

27 27 C.F.R. § 478.73(a) (2023).

With the exception of the

title of the Director, this regulation has been unchanged for

at least the last 20 years. See, 27 C.F.R. § 478.73(a) (2003).

an inspection.”28 The ATF website also notes that

failing to take required actions can also result in

license revocation, including failures to: “(1) Account

for firearms; (2) Verify and document buyer eligibility;

(3) Maintain records needed for successful firearms

tracing; [and] (4) Report multiple sales of

handguns.”29

Individual states also have extensive statutory

and regulatory schemes governing the firearms

industry within their borders.

In the state of

Massachusetts, there is a strict application process

governing the licensing of persons who wish to engage

in business selling or renting firearms, restrictions on

the sale/purchase of firearms only through statelicensed dealers, and clear penalties for violations of

the law.30

Given this strict regulatory scheme on who can

legally participate in the firearms business, and the

stiff penalties for failing to comply, it seems fairly

straightforward to assume that any FFL holder

should be able to generally rely on the current license

of any other licensee with whom they do business to

remain compliant with the law. Thus, one should be

able to legally conclude that under Prosser’s definition

of duty, the standard of conduct required by a firearms

manufacturer or distributor, like Petitioners, would

be to only deal with other licensed FFLs, at least

insofar as it pertains to business with civilian

markets. Since nowhere in Mexico’s complaint is

there an allegation that any of the Petitioners are

conducting business with an unlicensed distributor or

Revocation of Firearms Licenses, ATF,

https://www.atf.gov/firearms/revocation-firearms-licenses.

29 Id.

30 See MASS. GEN. LAWS ch. 140, §§ 122–122B, 128B; and

803 MASS. CODE. REGS. 10.09 (Sanctions).

end dealer—just the opposite in fact31—standard legal

analysis would indicate there has been no violation of

duty, and thus no recovery can be had.

4. Even discounting the protections of the PLCAA,

the complaint by Mexico seeks to base liability

solely on foreseeability and completely ignores the

legal principle of superseding causes of injury,

substituting ‘but-for’ causation for proximate

causation.

Mexico’s complaint alleges the “flow of guns

into Mexico is a foreseeable result”32 of Petitioners’

business activity, that it is equally “foreseeable and

expected” this “would lead to their trafficking to the

cartels in Mexico,”33 and the guns “would fall into the

hands of unintended users.”34 Mexico’s complaint is

therefore

impermissibly

relying

pure

foreseeability, and substitutes ‘but-for’ causation for

proximate causation. The Court need not rely solely

upon the PLCAA to find fatal flaws in Mexico’s claims,

and determine these bases are insufficient to find

liability.

While foreseeability is helpful in establishing

reasonableness in regard to a given party’s actions or

inactions, “[d]uty in negligence cases is [not] defined .

. . by foreseeability of injury . . . .” Strauss v. Belle

Realty Co., 65 N.Y.2d 399, 402 (N.Y. 1985) (citing

Pulka v Edelman, 40 N.Y.2d 781, 785 (N.Y. 1976).

According to Professor Andrew Kaufman, biographer

of Justice Benjamin Cardozo, even Cardozo believed

31 Petitioner-Defendants’ App. at 9a ¶ 7 (April 18, 2024)

(noting how Petitioners only sell to a “distributor or dealer

that has a U.S. license to buy and sell the product . . .”).

32 Petitioner-Defendants’ App. at 24a ¶ 50 (April 18, 2024).

33 Id. at 93a ¶ 279 (April 18, 2024).

34 Id. at 128a ¶ 356 (April 18, 2024).

foreseeability in the context of a negligence claim was

“limited by the notion that liability was not to be

extended in indeterminate amounts to indeterminate

numbers of people or in new situations whose

complexity suggested that the legislature or an

agency was a better forum for reaching a solution.”35

After all, it is foreseeable and expected that sportscars

will be driven at speeds above the legal speed limit;

that beer and liquor will be consumed by under-age

persons; and that baseball bats will be used to attack

or accost someone. The simple fact that each of those

examples is foreseeable, does not mean Coors, Ferrari,

or Louisville Slugger can or should be held liable when

such events occur. The same is true here; a ruling that

general foreseeability, completely by itself, is

sufficient to bring a claim would severely upend the

established framework of proximate causation being

necessary for a cause of action in tort. It would also

run counter to this Court’s established precedent of

plausibility being necessary when pleading any causal

link between the alleged action or inaction, and the

claimed harm.

“To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “[T]o satisfy the plausibility standard, a

plaintiff is not required to plead factual allegations in

great detail, but the allegations must contain

sufficient factual heft ‘to allow a court, drawing on

judicial experience and common sense, to infer more

than the mere possibility’ of that which is alleged.”

Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447,

452 (4th Cir. 2017) (quoting Nemet Chevrolet, Ltd. v.

35 Kaufman,

supra note 2 at 283.

Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.

2009)). A plaintiff cannot just plead a possible cause

of action; the claims must be plausible to pass muster.

As addressed, the U.S. firearms market is

highly regulated with a comprehensive licensing and

oversight scheme at both the federal and state levels.

Mexico’s

complaint

also acknowledges

that

Petitioners use a three-tier distribution system, which

entails firearms manufacturers selling their products

to licensed distributors, who in turn deal with licensed

firearms dealers;36 specifically noting how it is the end

dealers and sellers of the business side of the supply

chain which are the final step between the Petitioners

and any non-dealer purchaser. Mexico’s complaint

makes no claims that Petitioners are dealing directly

with the cartels or with cartel agents. Mexico’s

complaint makes no claim that Petitioners are

conspiring with federal or state law enforcement to

ensure illegal gun sales are allowed to proceed

unhindered. Mexico’s complaint makes no claim that

America’s state and federal law enforcement are

either egregiously negligent or woefully incompetent

in their duties of monitoring federal firearms licensees

or interdicting illicit firearms transactions and

smuggling. Mexico’s complaint does however detail

events spanning decades, and alleges a considerable

scope to Petitioners’ activities which fall under the

category of willful negligence if not deliberately

tortious activity. Thus, Mexico is expecting this Court

to believe not only in the possibility, but the

plausibility that Petitioners have been able to

magically ensure the down-stream dealers sell

considerable volume of their products to prohibited

persons or in prohibited transactions, while

Petitioner-Defendants’ App. at 140a ¶ 378 (April 18,

2024).

simultaneously ensuring these dealers and the buyers

either do not come to the notice of state or federal law

enforcement or their illicit sales are ignored, and that

all of this has been going on for decades.37 To

whomever is inclined to believe such a state of affairs,

I have a couple of chupacabras and a quetzalcoatl I’m

willing to sell at a discount.

At the very least, it should raise a few

eyebrows that despite Mexico’s lengthy complaint,

including a Washington Post graphic naming 12

firearms dealers in the American border states which

are purported to be the sellers of the largest number

of weapons which illegally end up in Mexico, not a

single dealer or seller is named as a defendant in the

case. More eyebrows should be raised at the fact the

complaint

contains

potential

proof

substantiation that the Petitioners had any special

arrangement with any individual dealer (again, nary

a one is identified outside the Washington Post

graphic), nor any proof or alleged testimony of a

specific pipeline by which cartels or their agents

consistently receive Petitioners’ goods. This becomes

especially curious given this case was filed by the

37 While some detractors of this brief might try to bring up

the series of shockingly atrocious ATF gun interdiction

operations which saw thousands of firearms be smuggled

across south of the border, including ‘Operation Wide

Receiver’ (2006–07), ‘Operation Fast and Furious’ (2009–

11), it should be noted that these and other “gunwalking”

operations were carried out from their inceptions with

coordination between the ATF and the gun stores where

the weapons were sold, and are entirely different than

what Mexico is alleging in its complaint. See Sharyl

Attkisson, A primer on the "Fast and Furious" scandal,

CBS (Feb. 12, 2013), https://www.cbsnews.com/news/aprimer-on-the-fast-and-furious-scandal/.

government of Mexico, which must surely have access

to all manner of records and information to

substantiate any claim of a specific network or

arrangement to engage in weapons smuggling. The

lack of any such evidence is telling, indeed.

5. Mexico’s theory of liability would be risible if

applied to other industries which sell ‘dangerous

products,’ like vehicles.

Mexico argues that any “manufacturer of a

dangerous product is an accessory or co-conspirator to

illicit conduct by downstream actors where it

continues to supply, support, or assist the

downstream parties and has knowledge—actual or

constructive—of the illicit conduct.”38 Mexico further

argues a general knowledge that criminals use their

products in the commission of violent criminal

activity, supported by “government and media

reports,” is “continual notice” which requires a

company to use “affirmative design safeguards;”

standards including “a duty not to include features

making [the products] more attractive to and useful

for malicious actors and to include safety features

reducing their susceptibility to theft and diversion to

the criminal market.”39 Under this logic, every motor

vehicle manufacturer in America can and should be

held liable for all the illicit conduct which is done by

downstream actors using their vehicles, since “[m]otor

vehicles are dangerous machines, and, even when

skillfully and carefully operated, their use is attended

by serious dangers to persons and property.” Hess v.

Pawloski, 274 U.S. 352, 356 (1927). After all, the news

is replete with instances of bad or malicious actors

using vehicles, stolen or legally bought, for illegal

activities.

Id. at 42a ¶ 110.

Id. at 50a and 39a ¶¶ 89–90.

Applying Mexico’s argument to the idea of

opening motor vehicle manufactures up to liability for

downstream actions, highlights the absurdity of

allowing Mexico’s claim in the matter at bar: The

International Association of Chiefs of Police avers

“[v]ehicle crime is often a high-impact crime also

involving [subsequent] crimes; in many instances, a

stolen vehicle is either driven while committing some

crimes or is the nexus of others, [including] robbery or

burglary, home invasion, shootings, homicide, drug

trafficking, arson, terrorism” and more.40 In both

2022 and 2023, over 1 million vehicles were reported

stolen per year according to the National Insurance

Crime Bureau.41 A report by the Lehigh Valley

Regional Intelligence and Investigation Center, based

on survey data from law enforcement across the

country, revealed that potentially 40% of motor

vehicle thefts were used in secondary crime in 2020.42

Using instead a modest figure of only 20% to

extrapolate the number of vehicles used in secondary

crimes, that would still equal over 200,000 stolen

vehicles used in secondary crimes, per year. Every car

manufacturer and dealer in America is surely on

notice regarding the long history of stolen vehicles

being used in the furtherance of criminal activity,

from the heyday of gangsters like John Dillinger, and

Bonnie and Clyde, through to the most recent

instances of stolen vehicles used in crime sprees

40 INT’L ASS’N OF CHIEFS OF POLICE, VEHICLE CRIMES AUTO

THEFT EDUCATIONAL AWARENESS REPORT 7 (2017).

41 Nat'l Ins. Crime Bureau,

Vehicle Thefts Surge

Nationwide in 2023, NICB (April 9, 2024),

https://www.nicb.org/news/news-releases/vehicle-theftssurge-nationwide-2023.

42 JANET SMILOWSKI ET AL., AUTO THEFT AND VEHICLE

CRIMES 2020 TRENDS AND PATTERNS 13 (2021).

around the country. Should the United States open

up the most popular American vehicle brands to

liability for these crimes? Should the United States

open all car manufacturers to potential liability for

any damages caused by drunk drivers or non-owners,

since we clearly have the technology to tie biometrics

or breathalyzers to a vehicle’s ignition system?43

Under Mexico’s theory of liability, we should.

Even dialed back a few degrees, such a theory

of liability would still potentially wreak havoc on

American manufacturers who could suddenly be

targeted under such an expansive concept of

negligence. For example, since Mexico is specifically

concerned with violence perpetrated by cartels using

commonly available consumer products made by

American companies, which are “attractive to and

useful for malicious actors,”44 the large American 4x4

trucks and SUVs must surely be next. After all, these

vehicles which are the bread and butter of Ford and

Dodge Ram, and are highly profitable for Chevy, also

happen to be the vehicles of choice for cartels, and are

Currently 31 states and D.C. have laws requiring

mandatory breathalyzer ignition interlock devices on

vehicles of persons convicted of DUI. See State Ignition

Interlock Laws, NCSL (Mar. 14, 2024),

https://www.ncsl.org/transportation/state-ignitioninterlock-laws.

Multimodal biometrics, including

fingerprint and facial identification technology is also able

to be seamless integrated into vehicles. See Kevin Daimi

et al., Using Multimodal Biometrics to Secure Vehicles, in

ADVANCES IN SECURITY, NETWORKS, AND INTERNET OF

THINGS 567, 567–84 (2021).

44 Petitioner-Defendants’ App. at 39a ¶¶ 89 (April 18,

2024).

often converted into up-armored ‘narco tanks.’45

Though it may seem ludicrous now, this would be the

logical extension of the liability theory Mexico asks

the Court to adopt.

II.

Mexico’s arguments and requested relief

would functionally work to usurp both the power of

Congress and state legislatures to determine what

firearms may legally be sold on the civilian market,

and the power of the executive branch and the law

enforcement agencies which implement and enforce

firearms laws.

Mexico’s prayer for relief goes beyond merely

seeking restitution for damages, but actively seeks the

authority to usurp the rights and powers of federal

and state legislatures to determine what firearms

may be legally sold on the civilian market. As a

Florida appellate court so succinctly put it, when faced

with a similar request brought by Miami-Dade

County, Mexico’s “request that the trial court use its

injunctive powers to mandate the redesign of firearms

and declare that the appellees’ business methods

create a public nuisance, is an attempt to regulate

firearms and ammunition through the medium of the

judiciary.” Penelas v. Arms Technology, Inc., 778 So.

2d 1042, 1045 (Fla.App. 2001). While it is “the duty of

45 ‘Narco tanks’ are standard vehicles which are heavily

modified with armor-plating, bullet-proof glass, and

weapons, to make ersatz armored assault vehicles. See,

e.g, Simon Romero & Emiliano R. Mega, Mexico’s ‘Monster’

Trucks Show Cartels Taking Drug War to Next Level,

NY TIMES (Aug. 1, 2023),

https://www.nytimes.com/2023/08/01/world/americas/mexi

co-cartels-trucks.html.

the Judicial Department to say what the law is,”

(Marbury v. Madison, 5 U.S. 137, 177 (1803)), it is not

within the rights or powers of the judicial department

to amend existing statutory law, or draft new laws,

upon the whims of a plaintiff. Indeed, when asked to

weigh in on the matter, a New York appellate court

was emphatic in asserting “the plain fact that courts

are the least suited, least equipped, and thus the least

appropriate branch of government to regulate and

micro-manage the manufacturing, marketing,

distribution and sale of [firearms].” Spitzer v. Sturm,

Ruger Company, Inc., 309 A.D.2d 91, 99 (N.Y. App.

Div. 2003).

There is no shortage of firearms legislation and

regulation at all levels of government across this

country: from federal statutes like the National

Firearms Act (which notably classify firearms into

various different categories, including pistols, rifles,

shotguns, short-barrel rifles/shotguns, destructive

devices, etc.),46 Gun Control Act,47 Firearm Owners

Protection Act,48 Brady Handgun Violence Prevention

Act,49 and most recently the Bipartisan Safer

Communities Act;50 to regulations promulgated by the

IRS and ATF;51 to state legislation which places

restrictions on what firearms citizens are and are not

allowed to own in the state.52 The key factor

46 Pub. L. No. 73-474, 48 Stat. 1236 (1934); 18 U.S.C. §

921(a)(3)–(8).

47 Pub. L. No. 90-618, 82 Stat. 1213 (1968).

48 Pub. L. No. 99–308, 100 Stat. 449 (1986).

49 Pub. L. No. 103–159, 107 Stat. 1536 (1993).

50 Pub. L. No. 117–159, 136 Stat. 1313 (2022).

See e.g. 27 C.F.R. §§ 447, 478, 479, 555.

E.g. supra note 30; and CAL. PENAL CODE §§ 30500–

31115 (Provisions addressing ‘assault weapons’ and .50

caliber firearms).

underlying all these statutes and regulations is the

fact that each was passed by the elected legislative

bodies of the applicable jurisdictions or the executive

agencies established by those legislatures.

While Mexico gives the pretense of accepting

the right of the U.S. to set its own domestic firearms

policy,53 it clearly is seeking to impose its own

judgment on what can and cannot be legally sold in

U.S. markets. Throughout the complaint, Mexico

repeatedly takes issue with .50 caliber rifles,

semiautomatic versions of AR-15 and AK platform

rifles, the importation laws regarding firearms and

firearm kits produced abroad, the types of features

which weapons should have, etc. Clearly, Mexico is

asking this Court to allow it, a foreign nation, to have

not just a partial say, but the whole decision-making

authority to regulate for the entirety of the U.S.,

bypassing the American legislative process. The

current status of U.S. gun laws is the result of an

extensive history of passed and discarded legislation

at all levels: from 1994–2004 there was a federal

assault weapons ban which Congress did not renew;

certain firearm features are prohibited in California,

but are allowed in Virginia; Connecticut sets

magazine capacity limits at 10 rounds, while in

Delaware the limit is 15; etc.54

Any judicial

determination which grants Mexico, or any plaintiff,

the ability to dictate what firearms may or may not be

sold, would be a clear violation of the constitutional

rights of the legislature of each state and Congress.

Indeed, Mexico’s comparison of its own domestic

53 Petitioner-Defendants’ App. at 14a ¶ 20 (April 18, 2024).

See generally, Compare State Gun Laws, EVERYTOWN

RESEARCH & POLICY,

https://everytownresearch.org/rankings/compare/

(last visited Nov. 21, 2024).

firearm regulatory scheme and appeal to use that

scheme as the standard by which U.S. courts evaluate

its claims, is the functional equivalent of seeking to

impose its own domestic laws on the U.S. market.55

The same holds true of the enforcement

element of firearms policy. Mexico is not content to

merely dictate firearms laws to the U.S., but also

seemingly seeks to dictate enforcement powers as

well, when it alleges the Petitioners, “not the

Government, have the authority to discipline

distributors and dealers that sell to straw purchasers

and otherwise supply traffickers.”56 While it is true,

American businesses do generally have the freedom to

choose with whom they wish to deal, the concept of

‘discipline’ is generally considered exclusive to the

purview of an authority over a subservient entity; the

governing over the governed.

If the federal

government lacks the power to commandeer state

officials for the purpose of conducting background

checks, see Printz v. United States, 521 U.S. 898

(1997), then surely Mexico has no right to require

American businesses to act as law enforcement

officers to impose its interpretation of firearms policy.

III. Mexico is essentially seeking to use U.S.

courts and the U.S. tort system to abrogate its

responsibility to run and manage its own domestic

and border security.

In evaluating this case properly, it is important

for this Court to remain cognizant of who the parties

are, and the broader geopolitical situation from which

Petitioner-Defendants’ App. at 145a–150a, 195a–196a

¶¶ 396–403, b. and c. (April 18, 2024).

56 Id. at 158a ¶ 433 (April 18, 2024).

this case arises, viz., that Mexico is a sovereign nation

with the power to enact its own laws and police its own

borders, and the duty to enforce such laws and provide

domestic security for its citizens. In contrast, the

Petitioners are American corporations operating

inside the United States, which have no hand or say

in border security, Mexican law enforcement policy, or

Mexican governance. The current U.S. Ambassador

to Mexico, Ken Salazar, is on record decrying the

deplorable state of security in Mexico due to the failed

leadership of its president and said that “blaming

someone else, blaming the United States, obviously is

not (the solution).”57 This is particularly notable when

taken into context with the fact that former president,

Andrés Manuel López Obrador refused to collaborate

on security matters with the U.S. government, and

even turned down “millions of dollars [that] were

available to support Mexico’s security efforts.”58

Unfortunately, this is just the latest in a chain of

failed leadership, as evidenced by the case of Jesús

Murillo Karam, who served as Attorney General

under Obrador’s predecessor, Enrique Peña Nieto,

and was arrested in 2022 for “the crimes of forced

disappearance,

torture

and

against

the

María Verza, US ambassador says Mexico ‘closed the

doors’ on security cooperation and denies its violence

problem, AP (Nov. 13, 2024),

https://apnews.com/article/mexico-sinaloa-cartel-violencebodies-02e0c9a499e9605291f3ba5a2f9e6f4d.

58 Elías Camhaji, ‘Mexico is not safe’: Ken Salazar takes

hardest stance yet on violence crisis, EL PAIS (Nov. 14,

2024),

https://english.elpais.com/international/2024-1114/mexico-is-not-safe-ken-salazar-takes-hardest-stanceyet-on-violence-crisis.html.

administration of justice,” in relation to the

disappearance and suspected murders of 43 students

in 2014.59

With this understanding, this case

seemingly loses any pretense of being a legitimate

cause of action under tort law, and instead has the

profound air of maliciousness, aimed at unpopular

defendants in the hopes of deflecting national

accountability.

Interestingly,

this

litigation

notwithstanding, Mexico does not have any qualms

about purchasing products from most, if not all, of the

named manufacturers in the complaint, for use by its

military, national guard, and police.

1. Mexico seeks to escape and abrogate culpability

for decades of corruption which have seen its own

actual military weapons be directed to cartels.

The Mexican government presents a litany of

figures and statistics in its claims against the

Plaintiffs in the attempt to show causality and craft a

theory of liability against the chosen boogeymen. The

Mexican government’s filings are disingenuous

though, as they conveniently overlook the deeply

entrenched corruption in various ranks and at all

levels of Mexico’s federal, state, and local

governments, which have empowered cartels and

criminal organizations and severely hampered

broader efforts to stem the violence.

A few notable examples of which the Court

should take notice include: in 2011, the Mexican

Fidel Gutierrez, Former attorney general of Mexico

arrested over multiple charges related to disappearance of

43 students, CNN (Aug. 19, 2022),

https://www.cnn.com/2022/08/19/americas/jess-murillokaram-mexico-missing-students-intl-latam/index.html.

military reported nearly 9,000 police weapons

missing, and the U.S. government made a formal

inquiry to Mexico asking how 1,030 AR-15 rifles were

diverted from military and police sales to criminals;60

a former Mexican army officer and guard for

President

Felipe

Calderon,

leaked

military

intelligence to drug cartels, trained hit men and

supplied military weapons to Los Zetas;61 a report

published in 2014 by the National Institute of

Statistics and Geography, an autonomous agency

within the Mexican government, found endemic

corruption in law enforcement, with 24,000 cases of

corruption recorded per 100,000 people, of which

50.6% were related to the police and public safety, and

many officers do not meet basic qualifications;62 in

September of 2018, the Mexican military took the

entire police department of Acapulco into custody and

confiscated all weapons, ammo, ballistic vests, and

radios due to deep suspicion of extensive infiltration

by criminal organizations;63 cartels are one of the

Legal U.S. gun sales to Mexico arming

cartels, CBS (Dec. 6, 2011),

60 Sharyl Attkisson,

https://www.cbsnews.com/news/legal-us-gun-sales-tomexico-arming-cartels/.

61 Embassy Mexico, Mexican Army Major Arrested For

Assisting Drug Trafficking Organizations, WikiLeaks

Cable: 09MEXICO133_a (Jan. 20, 2008),

https://wikileaks.org/plusd/cables/09MEXICO133_a.html.

62 INSTITUTO NACIONAL DE ESTADÍSTICA, GEOGRAFÍA E

INFORMÁTICA, RESULTADOS DE LA SEGUNDA ENCUESTA

NACIONAL DE CALIDAD E IMPACTO GUBERNAMENTAL

(ENCIG) 2013 at 56 (2014).

63 Scott Neuman, Mexican Authorities Disarm Acapulco

Police, Fearing Infiltration By Drug Gangs, NPR (Sept. 26,

largest employers in Mexico with an estimated

160,000–185,000 people employed as of 2022;64

rockets and anti-tank weapons from Central and

South American countries have been found in the

hands of cartels.65 This is a pattern of systemic

corruption which undermines public safety, and

should not be ignored.

2. Mexico seeks to ascribe liability to American

manufacturing firms for its own failed policies to

address domestic criminality and secure its own

side of the border.

Mexican cartels have posed a serious public

safety problem since at least the late 1980’s, but the

general consensus is that violence by cartels spiked

following President Felipe Calderón’s decision to

pursue an aggressive policy against the cartels in

2006, commonly known as the ‘War on Drugs,’ which

saw the use of federal military forces in lieu of local

civilian law enforcement, largely seen as ineffectual

and corrupt.66 Despite this initiative, the situation

2018),

https://www.npr.org/2018/09/26/651708030/mexicanauthorities-disarm-acapulco-police-amid-infiltrationconcerns-by-drug-ga.

64 Rafael Prieto-Curiel et al., Reducing cartel recruitment

is the only way to lower violence in Mexico,

381 SCIENCE 1312 (2023).

65 Julio Montes, Portable Anti-Tank Weapons in Mexico &

the Northern Central American Triangle, SMALL ARMS

DEFENSE JOURNAL (Aug. 15, 2023),

https://sadefensejournal.com/portable-anti-tank-weaponsin-mexico-the-northern-central-american-triangle/.

66 E.g. GEORGE W. GRAYSON, THE IMPACT OF PRESIDENT

FELIPE CALDERÓN’S WAR ON DRUGS ON THE ARMED

has not improved. The inability to deal with crime

rests hand in hand with local and federal forces who

have a history of ignoring or refusing to deal with

violence. A notable example is the case of the 43

students in Iguala, Guerrero, in 2014. While the true

events are still shrouded in mystery, a “government

truth commission concluded that local, state and

federal authorities colluded with the gang to murder

the students in what it called a ‘state crime.’”67 A

succession of police reform attempts, including the

suspension of most municipal police in favor of federal

police in 2014, and then disbanding many of those

forces due to corruption concerns, and forming a

National Guard under military control in 2019,

highlight this problem. The International Crisis

Group has recently released a detailed report

analyzing the failed policies and the underlying

causes which perpetuate the calamity.68

This situation is profoundly tragic and it seems

impossible to properly understand what life must be

like for the innocent, good, hard-working people of

Mexico who are forced to live in the middle of this

tragedy, with no end in sight. That said, this situation

is far deeper, more nuanced, and certainly more

complicated than what Mexico would have the

FORCES: THE PROSPECTS FOR MEXICO’S “MILITARIZATION”

AND BILATERAL RELATIONS (2013).

67 Daniel Shailer, 9 years later, families of 43 missing

Mexican students march to demand answers in

emblematic case, AP (Sept. 26, 2023),

https://apnews.com/article/ayotzinapa-obrador-marchdissapearing-protest-guerrero411f9f467a22080095c0ae301586904c.

68 INT’L CRISIS GROUP, THE GENERALS’ LABYRINTH: CRIME

AND THE MILITARY IN MEXICO (2024).

American courts believe, as evidenced by their

complaint.

CONCLUSION

For the foregoing reasons, the Court should

uphold the established history and tradition of U.S.

tort law, affirm the free public services doctrine, and

disallow non-meritorious claims to circumvent federal

statutes. Additionally, the Court should reject any

outcome with allows meddling by foreign sovereigns

with the rights and powers of the legislative and

executive branches of the federal government, and the

separate states.

Respectfully submitted,

JOAN DEBORAH B. EDELSOHN

Counsel of Record*

460 Center Street

Unit 6045

Moraga, CA 94570

(415) 944-9509

SAGEPropertiesLLC09@gmail.com

*Counsel for Amicus Curiae

G. Antaeus B. Edelsohn

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.