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

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

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

Petitioners,

v.

ESTADOS UNIDOS MEXICANOS,

Respondent.

ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

ɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

BRIEF OF AMICI CURIAE THE AMERICAN

CONSTITUTIONAL RIGHTS UNION AND

LTC ALLEN WEST (RET) IN SUPPORT OF

PETITIONERS

ɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ

John J. Park, Jr.

Counsel of Record for

Amici Curiae

P.O. Box 3073

Gainesville, GA 30503

(678) 608-1920

jackparklaw@gmail.com

i

QUESTIONS PRESENTED

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.

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.

ii

TABLE OF CONTENTS

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

TABLE OF CONTENTS.............................................ii

TABLE OF AUTHORITIES

iv

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

SUMMARY OF ARGUMENT

2

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

I. Introduction…………………………………….3

II. The actions of American firearms

manufacturers and sellers 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. Mexico’s claims fail the test of proximate

cause..................................................................9

III. Factual and equitable considerations

do not favor Mexico’s lawsuit.........................11

iii

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......................................................................14

2. Operation Fast and Furious..................................16

B. Mexico’s hands are not clean................................19

CONCLUSION..........................................................23

iv

TABLE OF AUTHORITIES

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 Chicago v. Beretta U.S.A. Corp.

821 N.E. 2d 1099 (Ill. 2005)...........................19

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

Lexmark, Intl. v. Static Control Components,

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

McDonald v. Chicago, 130 S. Ct. 2030 (2010).............2

v

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

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

Winter v. National Resources Defense

Council, Inc., 555 U.S. 7 (2008)................................20

Statutes

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)...............................................3,4

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.................................................12

18 U.S.C. § 1961 et seq................................................7

Rules

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

vi

Schweitzer, Peter, Blood Money: Why the

Powerful Turn a Blind Eye While

China Kills Americans

(Harper Collins 2024)................................20,21

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

Victor Schwartz & Phil Goldberg, The Law of Public

Nuisance: Maintaining Rational Boundaries

on a Rational Tort,

45 Washburn L. J. 541 (2006)........................19

West, Allen, No Sera’ Infrigido (May 15, 2024).......20

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

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.

1

2

West is a strong supporter of the Second Amendment

and believes that the inherent rights it guarantees

should not be infringed.

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

3

Glock switch smuggling, counsel against opening the

American courts to Mexico’s claims.

I. Introduction

ARGUMENT

The Protection of Lawful Commerce in Arms

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

broad protection from lawsuits to manufacturers and

sellers of firearms. 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

4

burden on interstate and foreign commerce of the

United States.

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).

The PLCAA allows for liability in limited

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

5

come from Congress, not the courts at the instigation

of a foreign government. In addition, the harm is

suffered exclusively outside the United States.

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.

6

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.

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 wellestablished 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.

7

In Holmes, the Court held that the Securities

Investor Protection Corporation (SIPC) could not sue

stock broker-dealers 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 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

8

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:

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.

9

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 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

10

eight 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. Brief for Petitioner at 8, 13-14, 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 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.

11

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 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,

12

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 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

2 Available at

https://www.documentcloud.org/documents/441887-ig-reportfast-and-furious.html

13

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.

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 shortstaffed ATF enforcement group quickly grew

into an investigation that lacked realistic

objectives, did not have

appropriate

14

supervision within ATF or the U.S. Attorney’s

Office, 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 AR15 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 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

15

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:

Pursued an investigative strategy 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 heatsealed 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, 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.

16

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 governmentsanctioned 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

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

17

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

As with Operation Wide Receiver, not all of the

weapons purchased by straw buyers were recovered.

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

weapons for more than $135,000 in two transactions later in the

year. IG Report at 117.

18

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 ATF-furnished 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 and FFL2 created at a

19

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.

In its Complaint, Mexico asserts claims that

include a claim for public nuisance and seeking

equitable relief. Pet. Appx. at 184a-186a, 195a. Both

of those claims make Mexico’s own conduct relevant

because each is fundamentally equitable in nature.

At common law, a public nuisance claim

allowed a governmental body to pursue injunctive

relief or abatement, but not money damages as a

remedy to “stop quasi-criminal conduct that, while

not illegal, is unreasonable given the circumstances

and could cause injury to someone exercising a

common, societal right.” Victor Schwartz & Phil

Goldberg, The Law of Public Nuisance: Maintaining

Rational Boundaries on a Rational Tort, 45

Washburn L. J. (2006) 541-42, 570. They note that

control over the alleged nuisance is essential. “Under

any method of assessing control, there is no doubt

that product manufacturers no longer have control

20

over a product after it is sold.” Id. at 568. Mexico’s

public nuisance claim against the gun manufacturers

ignores this point. Moreover, an illegal or negligent

act downstream of the sale of a product breaks the

chain of causation. Id. at 577; see also City of Chicago

v. Beretta U.S.A. Corp. 821 N.E. 2d 1099, 1136 (Ill.

2005) (“[L]awful commercial activity, having been

followed by harm to person and property caused

directly and principally by the criminal activity of

intervening third parties, may not be considered a

proximate cause of such harm.”)

In order to obtain a preliminary injunction,

Mexico must clearly show that it “is likely to succeed

on the merits, that [it] is likely to suffer irreparable

harm in the absence of preliminary relief, that the

balance of equities tips in [its] favor, and that an

injunction is in the public interest.” Winter v.

National Resources Defense Council, Inc., 555 U.S. 7,

20, 22 (2008). As shown above, the failure to establish

proximate cause means that Mexico cannot show that

it is likely to succeed on the merits. Moreover, the

equities do not favor it because it has no right to tell

the United States how far its Second Amendment

rights may reach and because, as shown below,

Mexico’s contribution to problems inside the United

States weighs against it in the balancing of the

equities.

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

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

21

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 automaticfire weapons are being manufactured in Mexico and

shipped to the United States.

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

22

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.

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.

23

CONCLUSION

For the reasons stated in the Petition and this

brief of amici curiae, this Court should reverse the

decision of the First Circuit Court of Appeals.

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