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

No. 23-1141

In the

Supreme Court of the United States

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

Petitioners,

v.

ESTADOS UNIDOS MEXICANOS,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the First Circuit

BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Richard P. Hutchison

Landmark Legal Foundation

3100 Broadway, Suite 1210

Kansas City, MO 64111

(816) 931-5559

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal

Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 544-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae

120041

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

STATEMENT OF INTEREST OF

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

INTRODUCTION AND SUMMARY OF

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

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

I.

Mexico repackages the claims made in

the 1990s-era aggregate litigation against

the firearms industry that prompted

passage of the PLCAA, a statute specifically

intended to bar suits like them . . . . . . . . . . . . . . . 3

II. Mexico uses stale and sparse examples

of dealer misconduct tenuously linked to

the law-abiding Petitioners to corral them

into an enforcement role the law does not

require . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

III. The PLCAA bars this lawsuit . . . . . . . . . . . . . . 13

A. Proximate cause requires more than

foreseeability . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. Aiding and abetting requires conscious,

culpable conduct that is connected

to the harm . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ii

Table of Contents

Page

IV. The opinion below threatens the American

firearms industry . . . . . . . . . . . . . . . . . . . . . . . . . 25

V.

Regulation through litigation threatens the

Constitution’s separation of powers . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Camden Cnty Bd. of Chosen Freeholders v.

Beretta U.S.A. Corp.,

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

aff ’d, 273 F.3d 536 (3d Cir. 2001) . . . . . . . . . . . . . . . . 15

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

213 Ill. 2d 351 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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

277 F.3d 415 (3d Cir. 2002) . . . . . . . . . . . . . . . 15, 16, 17

Halberstam v. Welch,

705 F.2d 472 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . 19

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

96 N.Y.2d 222 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Holmes v. Sec. Inv. Prot. Corp.,

503 U.S. 258 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ileto v. Glock, Inc.,

565 F.3d 1126 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . 14

People v. Sturm, Ruger & Co.,

761 N.Y.S.2d 192 (App. Div. 2003) . . . . . . . . . . . . . . . 16

Travieso v. Glock Inc.,

526 F. Supp. 3d 533 (D. Ariz. 2021) . . . . . . . . . . . . . . 27

iv

Cited Authorities

Page

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

STATUTES AND REGULATIONS

15 U.S.C. § 7903 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 14

Ariz. Rev. Stat. § 13-3101 (2024) . . . . . . . . . . . . . . . . . . . 10

Ariz. Rev. Stat. § 13-3102(A)(5) (2024) . . . . . . . . . . . . . 10

Bipartisan Safer Communities Act, Pub. L. No.

117-159, 136 Stat. 1313 (2022) . . . . . . . . . . . . . . . . . . . 12

Ga. Code Ann. § 16-11-101.1 (2024) . . . . . . . . . . . . . . . . . 10

Ga. Code Ann. § 16-11-113 (2024) . . . . . . . . . . . . . . . . . . 10

Gun Control Act of 1968, 18 U.S.C. § 921 et seq. . . . . . .11

Protection of Lawful Commerce in Arms Act,

15 U.S.C. § 7901 et seq. . . . . . . . . . . . . . . . . . 1, 2, 13, 26

Tex. Penal Code § 46.06 (2023) . . . . . . . . . . . . . . . . . . . 9-10

OTHER AUTHORITIES

Accuracy International, About Us, https://www.

accuracyinternational.com/about-us (last

visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 21

v

Cited Authorities

Page

Accuracy International, AT-X Mil short action

6.5 Creedmoor/.308 WIN Sniper rifle, https://

w w w.accuracy international.com /at-xmil

(last visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . 22

Accuracy International, A X ELR .50 anti

materiel sniper rif le system, https://www.

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

(last visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . 21-22

President John Adams, Fourth Annual Message

to the House of Representatives and the

Senate (Nov. 22, 1800) . . . . . . . . . . . . . . . . . . . . . . . . 26

ATF, Enhanced Regulatory Enforcement Policy,

https://www.atf.gov/rules-and-regulations/

enhanced-regulatory-enforcement-policy (last

visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 11

ATF, National Tracing Center, https://www.

atf.gov/firearms/apply-license (last visited

Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fox Butterfield, Results in Tobacco Litigation

Spur Cities to File Gun Suits, N.Y. Times,

Dec. 24, 1998, at A1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Cabot Guns, The Ireland Pistols, https://tinyurl.com/

u6nr4ryd (last visited Nov. 23, 2024) . . . . . . . . . . . . 24

vi

Cited Authorities

Page

Center For American Progress, Frequently

Asked Questions About Gun Trafficking (Aug.

20, 2021), https://w w w.americanprogress.

org/article/frequently-asked-questions-guntrafficking/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Colt CZ Group SE, Annual Financial Report for

2023 (Apr. 23, 2024), https://www.coltczgroup.

com/file/1159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Connecticut Firearms Auction, Winchester Chief

Crazy Horse .38-55 Rifle, https://tinyurl.com/

92c48j24 (last visited Nov. 23, 2024) . . . . . . . . . . . . . 24

Gobierno de AMLO declara 2019 año de Emiliano

Zapata [AMLO’s Government declares 2019 the

year of Emiliano Zapata], El Financiero (Jan. 11,

2019, 13:11 PM) (Mex.), https://www.elfinanciero.

c o m . m x / n a c i o n a l /g o b i e r n o - d e - a m l o declara-2019-ano-de-emiliano-zapata/ . . . . . . . . . . . 23

Howard M. Erichson, Private Lawyers, Public

Lawsuits: Plaintiffs’ Attorneys in Municipal

Gun Litigation, in Suing the Gun Industry:

A Battle at the Crossroads of Gun Control

and Mass Torts 129 (Timothy D. Lytton

ed., 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 26

Ford, How We Made the Toughest, Most Productive

F-150 Ever and the Most Powerful Lighty-Duty

Full-Size Truck, https://tinyurl.com/bdtevd5b

(last visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . 21

vii

Cited Authorities

Page

Desde Ayoxuxtla, presidente López Obrador

destaca legado de Emiliano Zapata [From

Ayoxuxtla, President López Obrador highlights

the legacy of Emiliano Zapata], Gobierno de

México [Government of Mexico] (Oct. 22, 2022),

https://tinyurl.com/3urzpndf . . . . . . . . . . . . . . . . . . . 23

Dave Graham & Laura Gottesdiener, Mexico sues

U.S. gun makers, eyes $10 billion in damages,

Reuters (Aug. 4, 2021), https://www.reuters.com/

world/americas/mexico-sues-several-weaponsmanufacturers-us-court-2021-08-04/ . . . . . . . . . . . . . 3

Lawrence S. Greenwald & Cynthia A. Shay,

Mu n i c i p a l i t i e s’ S u i t s A g a i n s t G u n

Manufacturers—Legal Folly, 4 J. Health

Care L. & Pol’y 13 (2000) . . . . . . . . . . . . . . . . . 5, 26-27

Guns.com, Colt 1911 Government Spirit of

America, https://tinyurl.com/4r42a4mx (last

visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sari Horwitz & James V. Grimaldi, U.S. Gun

Dealers with the Most Firearms Traced Over

the Past Four Years, Wash. Post (Dec. 13, 2010),

https://tinyurl.com/mtw3w32e . . . . . . . . . . . . . . . . . 6, 9

Hyatt Guns, https://www.hyattgunstore.com (last

visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

net/about-us/ (last visited Nov. 27, 2024) . . . . . . . . . 22

viii

Cited Authorities

Page

Israel Weapon Industries, IWI Jericho, https://

iw i.net /iw i-jer icho -pist ol / ( la st v isit ed

Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Juggernaut.Case, https://juggernautcase.com/ (last

visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Timothy D. Lytton, Lawsuits Against the Gun

Industry: A Comparative Institutional Analysis,

32 Conn. L. Rev. 1247 (2000) . . . . . . . . . . . . . . . . . . 4, 5

Timothy D. Lytton et al., Suing the Gun Industry:

A Battle at the Crossroads of Gun Control and

Mass Torts (Timothy D. Lytton ed., 2005) . . . . . . . . 4

Timothy D. Lytton, Tort Claims against Gun

Manufacturers for Crime-Related Injuries:

Defining a Suitable Role for the Tort System

in Regulating the Firear ms Industr y,

65 Mo. L. Rev. 1 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Julie Samia Mair et al., A Public Health

Perspective on Gun Violence Prevention,

in Suing the Gun Industry: A Battle at the

Crossroads of Gun Control and Mass Torts 39

(Timothy D. Lytton ed., 2005) . . . . . . . . . . . . . . . . . 4, 5

Andrés Manuel, @lopezobrador_, X (Jan. 12,

2019, 12:12 PM), https://x.com/lopezobrador_/

status/1084136084538241024?lang=en . . . . . . . . . . 23

ix

Cited Authorities

Page

MF Tactical, https://tiny url.com /mt6e2v95

(last visited Nov. 27, 2024) . . . . . . . . . . . . . . . . . . . . . 21

Wa lt e r Ol s on , An d r e w C u o m o a n d t h e

Gunmaker Litigation, Cato Inst. (Oct. 15,

2010, 1:07 PM), https://www.cato.org/blog/

andrew-cuomo-gunmaker-litigation . . . . . . . . . . . . . . 5

OutLaw Eyewear, About Us, https://tinyurl.com/

5n98s4hu (last visited Nov. 27, 2024) . . . . . . . . . . . . 21

Palmetto State Armory, Springfield 1911 .45 ACP

5” 7rd Pistol, Limited Edition, SS / Italian

Renaissance Da Vinci, https://tinyurl.com/

4fk648zr (last visited Nov. 23, 2024) . . . . . . . . . . . . . 24

Lindsay S. Regele, Industrial Manifest Destiny:

American Firearms Manufacturing and

Antebellum Expansion, 92 Business History

Rev. 57 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Remarks by President Biden and Attorney

General Garland on Gun Crime Prevention

Strategy, The White House (June 23, 2021),

https://www.whitehouse.gov/briefing-room/

speeches-remarks/2021/06/23/remarks-bypresident-biden-and-attorney-general-garlandon-gun-crime-prevention-strategy/ . . . . . . . . . . . . . 11

Katherine Schaeffer, Key facts about Americans

and guns, Pew Research Center (Jul. 24, 2024),

https://tinyurl.com/3c4vbnwu . . . . . . . . . . . . . . . . . . 24

x

Cited Authorities

Page

Victor E. Schwartz, The Remoteness Doctrine: A

Rational Limit on Tort Law, 8 Cornell J. L.

& Pub. Pol’y 421 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 18

Smith & Wesson Brands, Inc., Annual Report

(Form 10-K) (Jun. 20, 2024) . . . . . . . . . . . . . . . . . . . . 26

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

(Feb. 21, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

U.S. Dep’t of Justice, Fact Sheet: Two Years of the

Bipartisan Safer Communities Act (Nov. 17,

2024), https://www.justice.gov/opa/pr/fact-sheettwo-years-bipartisan-safer-communities-act . . . . . 12

Mark Wilson, Ecuador: The New Corridor for

South American Arms Trafficking, InSight

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

news/ecuador-new-corridor-south-americanarms-trafficking/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

Amicus Cur iae Landmark Legal Foundation

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

committed to preserving the principles of limited

government, separation of powers, federalism, originalist

construction of the Constitution and individual rights.

This case involves an attempt to circumvent Congress

to regulate commerce through the courts, “thereby

threatening the Separation of Powers doctrine and

weakening and undermining important principles of

federalism.” 15 U.S.C. § 7901(a)(8).

Landmark urges this Court to overturn the decision

of the circuit court below.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Mexico is trying to hold American firearms companies

liable for the harms caused by criminals. Its claims are

remarkably similar to those made by American cities in

lawsuits brought against the firearms industry in the late

1990s. Those lawsuits prompted Congress to pass the

Protection of Lawful Commerce in Arms Act (PLCAA),

Pub. L. No. 109- 92, 119 Stat. 2095, codified at 15 U.S.C.

§ 7901 et seq., in 2005 to bar them in the future. According

1. No counsel for a 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 Amicus Curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

Counsel for Amicus Curiae provided timely notice to counsel for

all parties of its intention to file this brief.

2

to Congress, the heavily regulated members of the gun

industry “are not, and should not, be liable for the harm”

solely caused by the unlawful use of their products. Id.

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

threaten constitutional rights, interstate and foreign

commerce, and even the stability of our economic system.

Id. § 7901(a)(6). They have no basis in the common law or

the American constitutional system, “and do not represent

a bona fide expansion of the common law,” Congress

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

lawsuits against firearms manufacturers, distributors,

and dealers “for the harm solely caused by the criminal or

unlawful misuse of firearm products . . . by others when

the product functioned as designed and intended.” Id.

§ 7901(b)(1). The statute provides for limited exceptions

to the blanket prohibition where firearms companies have

engaged in highly culpable conduct. Id. § 7903(5)(A)(i)-(vi).

The First Circuit Court of Appeals decided to

allow a lawsuit by Mexico against the heavily regulated

firearms companies to proceed anyway. The circuit court

found this case fits one of the statutory exceptions to

the blanket prohibition, one predicated on a statutory

violation. Even though American companies are lawfully

designing, manufacturing, marketing, and distributing

their products, according to the circuit court, they could

plausibly be considered as having knowingly aided and

abetted gun traffickers and gangsters in Mexico. Pet.

App. 311a.

Although the predicate exception requires a showing

of proximate causation, the court effectively adopted a

much broader standard of foreseeability. It ignored the

proximate cause analysis in other courts that dismissed

3

similar suits for being too attenuated—suits that even

predated the prohibitions of the PLCAA. Although the

predicate exception requires a knowing violation of an

underlying statute, the court below interpreted this

standard of intent to include knowledge in a general,

and not specific, sense of criminal activity. Mexico’s farreaching claims were shoehorned to fit the exception. The

unlawful use of firearms is obviously foreseeable by the

industry. By loosening the proximate cause requirement,

the circuit court thus read the predicate exception in a way

that swallows the rule. Finally, the circuit court ignored

this Court’s requirement of conscious, culpable activity

to establish aiding and abetting that is found in recent

precedent and interpreted the concept broadly.

The practical consequences of the opinion below are

significant. The circuit court opened the door to similar

lawsuits from other foreign governments. This could put

America’s domestic weapons manufacturers at risk of

bankruptcy, threatening national security.

ARGUMENT

I.

Mexico repackages the claims made in the 1990s-era

aggregate litigation against the firearms industry

that prompted passage of the PLCAA, a statute

specifically intended to bar suits like them.

Mexico seeks billions in damages and injunctive

relief to regulate the firearms industry’s business

practices. See Pet. App. 196a; see also Dave Graham &

Laura Gottesdiener, Mexico sues U.S. gun makers, eyes

$10 billion in damages, Reuters (Aug. 4, 2021), https://

www.reuters.com/world/americas/mexico-sues-severalweapons-manufacturers-us-court-2021- 08 - 04 /. Its

4

complaint follows the approach used in municipal litigation

in the 1990s that sought to hold firearms companies liable

for the damage caused by criminals. Then, as Mexico

does now, gun control advocates tried to shift focus away

from the criminal shooters and gun traffickers to the

manufacturers’ lawful design, marketing, and distribution

practices. Congress decisively barred these suits through

passage of the PLCAA.

A review of the municipal litigation shows the

similarities to this case. In the 1970s, policy researchers

began to analyze gun deaths in the aggregate and deemed

it a public health issue. Julie Samia Mair et al., A Public

Health Perspective on Gun Violence Prevention, in

Suing the Gun Industry: A Battle at the Crossroads of

Gun Control and Mass Torts 39, 40 (Timothy D. Lytton

ed., 2005). In the 1980s, victims of gun violence turned to

tort litigation for compensation. Timothy D. Lytton, Tort

Claims against Gun Manufacturers for Crime-Related

Injuries: Defining a Suitable Role for the Tort System

in Regulating the Firearms Industry, 65 Mo. L. Rev.

1, 3 (2000). While victims were often successful against

their assailants, courts continually rejected arguments

attempting to place liability on gun manufacturers for

injuries sustained through the criminal misuse of a

firearm. See Timothy D. Lytton, Lawsuits Against the

Gun Industry: A Comparative Institutional Analysis,

32 Conn. L. Rev. 1247, 1260 (2000).

Beginning in the late 1990s, however, many municipal

plaintiffs began filing lawsuits against sellers and

manufacturers, seeking compensatory damages for

the increased costs of providing emergency services.

Additionally, plaintiffs commonly alleged negligent

5

distribution and public nuisance, and sought broad

injunctive relief from what they deemed irresponsible

design and marketing practices. Lawrence S. Greenwald

& Cynthia A. Shay, Municipalities’ Suits Against Gun

Manufacturers—Legal Folly, 4 J. Health Care L. & Pol’y

13, 14 (2000). These claims foreshadowed the instant case.

In 1998, New Orleans became the first municipality

to file a lawsuit against a group of firearm manufacturers

and was quickly followed by many other major U.S. cities.

Timothy D. Lytton, Lawsuits Against the Gun Industry:

A Comparative Institutional Analysis, 32 Conn. L. Rev.

1247, 1260 (2000). The lawsuits were in large part spurred

on by recent success states had with mass tort litigation

against the tobacco industry. Fox Butterfield, Results in

Tobacco Litigation Spur Cities to File Gun Suits, N.Y.

Times, Dec. 24, 1998, at A1. Seeing this success, many

government leaders “believe[d] that jurors who hear[d]

the cities’ suits [would] be receptive to the argument . . .

that the entire public is burdened by the costs resulted

from use of a dangerous product.” Id.

The flood of litigation against firearm manufacturers

threatened the viability of the entire industry. The intent

was to use the costly legal process as a “bludgeon,”

forcing the thinly capitalized gunmakers to yield to

“gun control through litigation.” Walter Olson, Andrew

Cuomo and the Gunmaker Litigation, Cato Inst. (Oct.

15, 2010, 1:07 PM), https://www.cato.org/blog/andrewcuomo-gunmaker-litigation. Then-Secretary of Housing

and Urban Development Andrew Cuomo warned that gun

manufacturers who did not comply would suffer “death by

a thousand cuts.” Id.

6

Gun control advocates who focused on the public health

aspects of gun violence applied a preventative approach

to the issue. They found it “more effective and therefore

preferable to address the design of guns before they

get into the hands of millions of people rather than rely

upon our ability to control the behaviors of those millions

so that they always act prudently once the guns are in

their hands.” Julie Samia Mair et al., A Public Health

Perspective on Gun Violence Prevention, in Suing the

Gun Industry: A Battle at the Crossroads of Gun Control

and Mass Torts 39, 50 (Timothy D. Lytton ed., 2005).

Furthermore, regulating a few manufacturers would be

significantly easier than thousands of dealers. Id. at 56.

From a public policy perspective, anti-gun advocates

saw “litigation as an alternative means” to achieving policy

outcomes that would be unpopular if they were proposed

as legislation. Howard M. Erichson, Private Lawyers,

Public Lawsuits: Plaintiffs’ Attorneys in Municipal

Gun Litigation, in Suing the Gun Industry: A Battle at

the Crossroads of Gun Control and Mass Torts 129, 137

(Timothy D. Lytton ed., 2005). Mass torts against the gun

industry simultaneously benefited plaintiffs’ lawyers, antigun advocates, and politicians that favored gun control but

were wary of advocating for stricter gun laws.

Municipal gun litigation had several advantages

compared to class action suits. First, it gave the plaintiffs’

lawyers the scale they needed to sue the industry

without needing to find individual plaintiffs themselves.

Municipalities provided plaintiffs’ lawyers the ability

to “achieve the effect of aggregation without the need

for class action or any other judicial joinder.” Id. at 142.

Second, a municipal plaintiff that sues for damages on

7

behalf of its citizens changes the cases’ optics. A focus

on harm done to the community by gun crime serves to

“remove[ ] attention from any individual shooting and

thus diminish the power of defense arguments that focus

on blameworthy victims, owners, or shooters.” Id. at 143.

Municipal gun litigation turned individual crimes into a

societal issue, with gun manufacturers to blame for it. In

response, Congress acted decisively to prohibit these suits

by passing the PLCAA.

Here, Mexico has turned individual crimes into an

international issue and is once again trying to shift blame

for its domestic public safety failures on law-abiding

American firearms companies. It is repackaging the old

claims of wrongful design, marketing, and distribution

practices as aiding and abetting. And it similarly uses

the aggregation of harm by criminal actors to change

the focus away from the primary tortfeasors. The truly

culpable parties here are criminals: the violent Mexican

cartel members who commit murders and gang violence,

the smugglers who move weapons across the border

illegally, the thieves and straw purchasers of weapons on

behalf of criminals, and the fraction of firearms dealers

who are intentional participants in straw purchases and

thefts. Here, the Petitioners themselves are remote in time

and space from the damage claimed by Mexico. Petitioners

are aware that crime occurs, but do not encourage it or

participate in it. The indirect link between the Petitioners

and the actual tortfeasors can only be perceived when

the actions of countless individuals are viewed in the

abstract. Mexico’s lawsuit is the type of case the PLCAA

was intended to prohibit.

8

II. Mexico uses stale and sparse examples of dealer

misconduct tenuously linked to the law-abiding

Petitioners to corral them into an enforcement role

the law does not require.

Mexico’s complaint has a lengthy discussion of dealer

misconduct that supposedly connects the Petitioners to

gun trafficking and cartel violence. Illicit conduct by some

dealers at the bottom of the American gun industry’s threetiered distribution system (manufacturer—distributor—

dealer) certainly contributes in some measure to the

trafficking of guns into Mexico. Mexico, however, ascribes

liability for this behavior to the Petitioners chiefly because

of the claim that these companies should be able to identify

and stop selling to dealers with bad business practices.

Pet. App. 44a-46a. This assertion is not credible and

Mexico’s chosen evidence demonstrates why.

Mexico cites a Washington Post investigation

published almost fourteen years ago in 2010 to assert

that several dealers with disproportionate shares of their

guns used in crimes have been “identified by name.” Id.

at 44a-45a. The report, however, raises several issues

challenging Mexico’s premise. First, the article makes

clear that many of the gun stores with the highest numbers

of guns traced to crime are simply high-volume stores.

The second highest gun dealer on the Bureau of Alcohol,

Tobacco, Firearms and Explosives’ (ATF) list of traces

to crimes calls itself “America’s Largest Gun Shop”

because of its broad inventory. Sari Horwitz & James

V. Grimaldi, U.S. Gun Dealers with the Most Firearms

Traced Over the Past Four Years, Wash. Post (Dec. 13,

2010), https://tinyurl.com/mtw3w32e; Hyatt Guns, https://

www.hyattgunstore.com (last visited Nov. 27, 2024). (Gun

tracing is the process by which ATF tracks each step of

9

an individual firearm’s movements from manufacturer

or importer to crime scene to help identify perpetrators.

ATF, National Tracing Center, https://www.atf.gov/

firearms/apply-license (last visited Nov. 27, 2024).)

The same Washington Post article further stated, “[a]

high number of guns traced to a store does not necessarily

signal wrongdoing.” Horwitz & Grimaldi, supra. Large

stores can generate higher numbers of traces even without

wrongdoing on the store’s part because of reselling

through gun shows, inheritances of legally obtained

weapons, and weapons thefts. The more guns a store sells,

the higher chance there is for guns to change possession

and end up in the hands of criminals.

Second, high-volume stores with high numbers of

traces are often well monitored by ATF. As described

in the Washington Post article, ATF is far from “barely

mak[ing] a start on preventing gun trafficking to

Mexico.” Pet. App. 47a. They spend a full month of each

year inspecting Vance Outdoors in Columbus, Ohio, the

high-volume retailer at the top of the trace list. Horwitz

& Grimaldi, supra. And what they find in many of these

investigations is crucial, if conspicuously absent from

Mexico’s portrayal of the situation in the complaint.

Regarding the single dealer in the U.S. with the most

traces to crimes in Mexico, ATF reportedly “have no

indication that [dealer] Lone Wolf is doing anything

wrong or illegal.” Horwitz & Grimaldi, supra. Moreover,

it is not just ATF that conducts investigations of cited

dealers. When New York City officials conducted a sting

operation by soliciting a straw sale from a high-trace

dealer in Georgia, store officials denied that sale. Id. And

straw purchase sales are illegal under Texas, Arizona,

and Georgia state law, among others. See Tex. Penal Code

10

§ 46.06 (2023); Ariz. Rev. Stat. §§ 13-3101—13-3102(A)

(2024); Ga. Code Ann. §§ 16-11-101.1—16-11-113 (2024).

Mexico’s failure to identify a pattern of dealers

facilitating trafficking, and specifically the trafficking

of Smith & Wesson’s products, is crucial. It highlights

particularly where the circuit court erred in reviving

the aiding and abetting charges against the Petitioners.

The circuit court’s decision interprets the complaint as

claiming “that [Petitioners] can identify which of their

dealers are responsible for the illegal sales that give the

cartels the guns, and that they know the unlawful sales

practices those dealers engage in to get the guns to the

cartels.” Pet. App. 301a.

The circuit court’s interpretation is not borne out in

the text of the complaint. Mexico can point out specific

instances of dealer misconduct or conspiracy that enables

trafficking only infrequently. For example, one section

of the complaint alleges more than fifty instances of gun

trafficking, but very few actually involve any accusation

that the dealer acted unlawfully. Pet. App. 54a-71a.

Furthermore, only one instance alleges any knowing,

intentional misconduct by a dealer that facilitated

trafficking of Smith & Wesson’s firearms. Id. at 57a. And

Mexico does not allege that Smith & Wesson knew the

dealer intended to do so, or was ever engaged in unlawful

conduct. Instead, what their allegations point to are

instances where legislators could play a larger role, such

as regulating large sales and requiring more stringent

background checks to prevent straw purchases. But these

are questions to be sorted by the political branches, not

the judiciary.

11

Mexico’s complaint also accuses the Petitioners of

engaging in “standardless distribution practices” because

they engage in business with all qualified ATF-licensed gun

sellers. Id. at 12a. But this is simply incorrect; requiring

ATF licensure for sale is a meaningful standard. The

Gun Control Act of 1968 (GCA) gives ATF the authority

to revoke the license of any dealer who “has violated

any provision of this chapter or any rule or regulation

prescribed by the Secretary under this chapter.” Gun

Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213,

1219 (1968) (codified at 18 U.S.C. §§ 921–928). In other

words, even a single violation of the regulations set forth

in the GCA can cause a business to lose its ability to sell

guns legally and therefore its business with Petitioners.

Moreover, this is exactly the policy currently in place.

In 2021, President Biden announced an explicit policy of

“zero tolerance for gun dealers who willfully violate key

existing laws and regulations.” Remarks by President

Biden and Attorney General Garland on Gun Crime

Prevention Strategy, The White House (June 23, 2021),

https://tinyurl.com/yc2xtwsy. He continued, saying:

If you willfully sell a gun to someone who is

prohibited from possessing it, if you willfully

fail to run a background check, if you willfully

falsify a record, if you willfully fail to cooperate

with the tracing requests or inspections, my

message to you is this: We’ll find you, and we

will seek your license to sell guns.

Id. This initiative has led to the revocation or voluntary

termination of 539 Federal Firearms Licenses (FFLs)

from the announcement of the zero-tolerance policy until

12

June 2024. ATF, Enhanced Regulatory Enforcement

Policy, https://w w w.atf.gov/rules-and-regulations/

enhanced-regulatory-enforcement-policy (last visited

Nov. 27, 2024).

Dismissing the signif icance of licensure as a

requirement for business, Mexico claims that “having a

federal firearms license does not mean that the licensee

follows the law. Pretending otherwise is a fiction that

Defendants use to falsely claim plausible deniability about

their obligation to monitor and discipline their distribution

chains.” Pet. App. 49a. It is true that a small minority of

gun dealers still commit crimes. What this license does

indicate, however, is that this seller is one that is subject

to ATF investigatory authority and that if any violations

are found, ATF has the statutory power to revoke their

license, publicize the business’s information and revocation

report, and potentially prosecute responsible parties.

Furthermore, the Bipartisan Safer Communities Act,

Pub. L. No. 117-159, 136 Stat. 1313 (2022), which amended

the GCA recently made it a federal crime for gun buyers to

engage in a straw purchase. This has already led to charges

against at least 525 defendants. U.S. Dep’t of Justice, Fact

Sheet: Two Years of the Bipartisan Safer Communities

Act (Nov. 17, 2024), https://www.justice.gov/opa/pr/factsheet-two-years-bipartisan-safer-communities-act. This

is a far cry from Mexico’s characterization of ATF as

ineffectual, an organization which can “barely make a

start on preventing gun trafficking to Mexico.” Pet. App.

47a.

At bottom, Mexico’s complaint provided a stale list

of instances of purported dealer misconduct with only an

indirect connection to the Petitioners. Ultimately, Mexico

wants to require firearms manufacturers and distributors

13

to police dealer behavior, but that is merely their preferred

policy goal and not a legal requirement.

III. The PLCAA bars this lawsuit.

The PLCAA prohibits lawsuits against firearms

manufacturers, distributors, and dealers “for the harm

solely caused by the criminal or unlawful misuse of firearm

products . . . by others when the product functioned as

designed and intended.” 15 U.S.C. § 7901(b)(1). Despite

the PLCAA’s blanket prohibition, the circuit court found

that this case could fit under one of the exceptions. When a

company “knowingly” violates a state or federal firearms

law “applicable to the sale or marketing of the product,

and the violation was a proximate cause of the harm for

which relief is sought.” Id. § 7903(5)(A)(iii). The circuit

court found that Mexico has plausibly alleged a knowing

violation of aiding and abetting statutes through the

firearms companies’ marketing, manufacturing, design,

and distribution processes. Pet. App. 311a.

The statutory text, however, has explicit and implicit

provisions indicating this case is covered by the PLCAA.

The findings and purposes target similar lawsuits by

American governmental entities as an interference with

separation of powers, sovereignty, and sister state comity,

suggesting a suit by a foreign nation is a step too far.

15 U.S.C. § 7901(a)(8), (b)(6). The statute decries attempts

to regulate the firearms industry through judicial decree,

as Mexico’s expansive requested injunctive relief does

here. Id. § 7901(a)(8).

The PLCAA provides six exceptions to the blanket

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

14

against dealers for transferring a firearm knowing it

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

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

against manufacturers or dealers for knowingly violating

state or federal law “applicable to” the marketing or sale

of firearms, if that violation was the proximate cause of

harm for which relief is sought; (iv.) actions for breach of

contract or warranty; (v.) actions for death resulting from

defects in design or manufacturing, when the firearm

was used properly and legally; and (vi.) actions initiated

by the Attorney General to enforce the Gun Control Act

or National Firearms Act. Id. § 7903(5)(A)(i)-(vi). These

exceptions allow lawsuits to proceed only in the face of

criminal acts, or tortious conduct where the firearms

company is directly or knowingly involved or is liable

under state law. They encompass highly culpable conduct,

unlike the lawful conduct of the heavily regulated firearms

companies here. And as the Ninth Circuit Court of

Appeals observed, due in part to the specific carve out for

negligent entrustment and negligence per se, “Congress

clearly intended to preempt common-law claims, such as

general tort theories of liability.” Ileto v. Glock, Inc., 565

F.3d 1126, 1135 (9th Cir. 2009). Taking all elements of

the statute together, the PLCAA provides only narrow

exceptions to the blanket prohibition that do not apply

here.

A.

P r ox i m at e c au s e r e qu i r e s mor e t h a n

foreseeability.

Although the circuit court found the third exception

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

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

PLCAA, state and federal courts repeatedly found the

chain of causation too weak and involved too many steps

15

to show that the firearms companies were the proximate

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

marketing decisions to establish liability. But the circuit

court here declined to adopt their reasoning.

In Camden County Bd. of Chosen Freeholders v.

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

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

between alleged misconduct and harm was “highly

attenuated.” It found the causal connection “weak,

amounting to scarcely little more than an assertion that

because the gun manufacturers distribute their products,

they eventually fall into the wrong hands, are used to

commit crimes against persons and property, ‘causing’

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

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

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

have to show that the chain of causation was not severed

by illegal conduct on the part of distributors and retailers,

illegal conduct by the purchasers of handguns, or gun

theft” Id. at 257-58.

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

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

Court’s doctrine of remoteness in proximate cause cases.

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

complains of harm flowing merely from the misfortunes

visited upon a third person by the defendant’s acts

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

recover.’” Id. at 423 (quoting Holmes v. Securities Investor

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

is determined by six factors: the connection between

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

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

the speculative nature of the claim, whether the injury

16

was direct, and the practical considerations of difficult

assignment of, or excessive, damages to the plaintiff.

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

“long and tortuous” route between the gun manufacturer

to the streets of Philadelphia, the derivative nature of

plaintiff ’s injuries, the independent breaks in the causal

chain, and difficulties posed by apportioning liability. Id.

at 424-25. Ultimately, the circuit court found the “causal

connection between the gun manufacturers’ conduct and

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

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

manufacturers and the streets of Mexico is even longer

and more tortuous.

In New York, the Court of Appeals found the connection

too remote between the plaintiffs, criminals, and defendant

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

chain consisting of at least the manufacturer, the federally

licensed distributor or wholesaler, and the first retailer.

The chain most often includes numerous subsequent legal

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

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

York case, the harm was once again “far too remote

from defendants’ otherwise lawful commercial activity.”

People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 201 (App.

Div. 2003). And since harm was “caused directly and

principally by the criminal activity of intervening third

parties,” the defendant’s lawful commercial activity “may

not be considered a proximate cause of such harm.” Id.

The Illinois Supreme Court followed this reasoning

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

410-411 (2004).

17

The causal chain which Mexico uses to connect

the firearms companies to their injuries is even longer

than the ones that courts rejected in these pre-PLCAA

cases. Furthermore, Mexico’s causal chain involves more

intervening actions from criminals, as the guns are being

smuggled across the border and illegally sold there to the

cartel. The circuit court raised a hypothetical to show

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

not mean that there is an insufficient connection between

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

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

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

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

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

and thereby causing a reasonably cautious downstream

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

be described in multiple steps does not mean that “the

negligent helmsperson did not foreseeably cause the

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

“negligently steering the ship foreseeably caused the need

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

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

of assault weapons to the cartels foreseeably caused the

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

The circuit court’s observation, however, is not

persuasive. Of course, describing the chain of causation

through multiple steps is not dispositive. The Petitioners

raise the multi-step chain as simple shorthand to show

the chain here is more attenuated than in other cases

where proximate causation was rejected. In the circuit

court’s hypothetical, the helmsman triggers a series of

mechanical forces and physical reactions by leaning on

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

18

separated from the harm in time and space by a series

of independent human actors with free will: distributors,

salesmen, straw buyers, smugglers and gangsters. See

Victor E. Schwartz, The Remoteness Doctrine: A Rational

Limit on Tort Law, 8 Cornell J. L. & Pub. Pol’y 421, 426

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

the problems caused by treating proximate causation as

a simple matter of foreseeability.

The court below relied, in part, on the Restatement

Second to explain why an intervening criminal act by

cartel members did not break the chain of causation in

this case. They quote Restatement Second, stating “[i]f

the likelihood that a third person may act in a particular

manner is the hazard or one of the hazards which makes

the actor negligent, such an act whether innocent,

negligent, intentionally tortious, or criminal does not

prevent the actor from being liable for harm caused

thereby.” Pet. App. 313a (quoting Restatement (Second)

of Torts § 449). Once again, this is certainly superficially

true, but inapposite here because of the remoteness of the

ultimate harms. This case does not involve the liability

of someone negligently entrusted with a weapon who

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

line: straw buyer to smuggler to cartel member.

In summary, the causal chain in this case is too

attenuated to establish proximate cause so the exception

to the blanket prohibition of the PLCAA was not met.

19

B. Aiding and abetting requires conscious,

culpable conduct that is connected to the harm.

The circuit court also found that the firearms

companies aided and abetted the cartels through their

lawful activities, including marketing. In the recent case

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

was alleged to have “aided and abetted” a terror attack

through ISIS’s use of its platform. The Court considered

the meaning of “aiding and abetting” and “what precisely

must the defendant have ‘aided and abetted.’” Id. at 484.

The principal focus of analysis was what constituted

“knowingly and substantially assist[ing] the principal

violation.” Halberstam v. Welch, 705 F.2d 472, 477 (D.C.

Cir. 1983). That case laid out six factors for analysis: “‘the

nature of the act assisted,’ the ‘amount of assistance’

provided, whether the defendant was ‘present at the

time’ of the principal tort, the . . . ‘relation to the tortious

actor,’ the ‘defendant’s state of mind,’ and the ‘duration

of assistance given.’” Twitter, 598 U.S. at 486 (quoting

Halberstam, 705 F.2d at 488 (emphasis removed)).

Applying these factors in Twitter, Justice Thomas

reasoned that aiding and abetting requires conscious,

affirmative action. “[O]ur legal system generally does

not impose liability for mere omissions, inactions, or

nonfeasance.” Twitter, 598 U.S. at 489. Twitter may have

watched the terror attack in question with indifference, but

it did not take any affirmative action to aid the attackers.

Furthermore, there is no evidence it had treated posts

made by terrorists any differently than those made by

any other users. Because of this lack of active aid on the

part of Twitter, and because the connection between the

terrorist attack and Twitter was “highly attenuated,” the

20

Court held that Twitter did not aid or abet the attack. Id.

at 500.

Here, Mexico’s case of aiding and abetting rests

in part on firearms companies’ marketing decisions to

highlight their military effectiveness, an alleged appeal

to the cartels. This theory cannot meet the requirements

of conscious, culpable, and affirmative conduct laid out in

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

Marketing firearms based on their military effectiveness

has a long tradition in the United States, completely

unrelated to the Mexican cartels or any criminal activity.

Samuel Colt, the founder of one of America’s historic

firearms companies, marketed his products based on

their combat effectiveness. He “became known for his

nationwide marketing and successful branding. This

success depended on the association of his arms with

frontier conquest. Testimony from American soldiers

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

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

Manifest Destiny: American Firearms Manufacturing

and Antebellum Expansion, 92 Business History Rev. 57,

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

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

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

Id. at 79-80.

Marketing products as “tactical” or “military grade”

is an innocuous branding technique used by a variety

of American companies for consumer goods, such as

sunglasses, flashlights, phone cases, and trucks.

21

• OutLaw Eyewear, About Us, https://tinyurl.

com/5n98s4hu (last visited Nov. 27, 2024)

(“tactical” aluminum ballistic sunglasses).

• MF Tactical, https://shop.monsterflashlight.

com/?v=7516fd43adaa (last visited Nov. 27,

2024) (“tactical LED flashlights”).

• Juggernaut Case, https://juggernautcase.

com/ (last visited Nov. 27, 2024) (“combat

proven”).

• Ford, How We Made the Toughest, Most

Productive F-150 Ever and the Most Powerful

Lighty-Duty Full-Size Truck, https://

tinyurl.com/bdtevd5b (last visited Nov.

27, 2024) (“high strength, military grade,

aluminum-alloy body”).

And it is also common among foreign small arms

manufacturers in their advertising to private purchasers.

• I n t he Un it e d K i n g dom , A c c u r a c y

International boasts collaboration with

the Br it ish a r med forces. Accu racy

International, About Us, https://w w w.

accuracyinternational.com/about-us (last

visited Nov. 27, 2024). Rifles are advertised

as “designed to withstand constant military

deployment,” “combat proven,” and not

merely “military grade,” but officially

approved and tested according to NATO

standards. Accuracy International, AX

ELR .50 anti materiel sniper rifle system,

22

https://www.accuracyinternational.com/axelr-mil (last visited Nov. 27, 2024); Accuracy

International, AT-X Mil short action 6.5

Creedmoor/.308 WIN Sniper rifle, https://

www.accuracyinternational.com/at-xmil

(last visited Nov. 27, 2024).

• In Israel, Israel Weapon Industries (IWI)

states, “All of IWI’s weapons have been battle

proven around the world under adverse and

extreme environmental conditions . . . [a]ll

IWI weapon systems comply with the most

stringent military standards (MIL-STD)

. . . applied by the IDF.” Israel Weapon

Industries, About IWI, https://iwi.net/

about-us/ (last visited Nov. 27, 2024). IWI

also describes its Jericho Pistol as being

“deployed by the military and police in

Israel as well as law-enforcement units

worldwide. Being one of the most popular

self-protection guns, the JERICHO also

operates as a personal weapon in many

countries.” Israel Weapon Industries, IWI

Jericho, https://iwi.net/iwi-jericho-pistol/

(last visited Nov. 27, 2024).

It is unremarkable for companies to associate products

with the military, considering the premium placed on

high-quality equipment in harsh conditions.

Mexico claimed that some of the Petitioners “[do] not

even try to hide [their] pandering to the criminal market

in Mexico” as part of their claim that marketing is aiding

and abetting the cartels. Pet. App. 75a. They point to a

23

collectible Colt handgun engraved with the likeness of

Mexican revolutionary Emiliano Zapata and a phrase

attributed to him on the other: “It is better to die standing

than to live on your knees.” Id. But commemorative

guns are common in the industry and are not exclusively

targeted at criminals. This accusation about Zapata

rings particularly hollow since he is revered throughout

Mexican society and is not a fringe, cartel-affiliated figure.

Former President López Obrador himself, the head of

the same presidential administration that brought this

lawsuit, declared 2019 the “Year of Emiliano Zapata.”

Andrés Manuel, @lopezobrador_, X, (Jan. 12, 2019, 12:12

PM), https://x.com/lopezobrador_/status/1084136084538

241024?lang=en. Then-President López Obrador said in

2019 that Zapata was “an honest and good-hearted man,

a true national hero.” Gobierno de AMLO declara 2019

año de Emiliano Zapata [AMLO’s Government declares

2019 the year of Emiliano Zapata], El Financiero (Jan.

11, 2019, 13:11 PM) (Mex.), https://www.elfinanciero.com.

mx/nacional/gobierno-de-amlo-declara-2019-ano-deemiliano-zapata/. See also Desde Ayoxuxtla, presidente

López Obrador destaca legado de Emiliano Zapata

[From Ayoxuxtla, President López Obrador highlights

the legacy of Emiliano Zapata], Gobierno de México

[Government of Mexico] (Oct. 22, 2022), https://tinyurl.

com/3urzpndf.

Colt made another firearm dubbed “Spirit of America”

engraved with a bald eagle, Mount Rushmore, and a

rearing horse on the grip. Guns.com, Colt 1911 Government

Spirit of America, https://www.guns.com/firearms/p/colt1911-government-spirit-of-america?i=307032 (last visited

Nov. 27, 2024). Further examples of firearms companies

selling commemorative products tied to various ethnic

backgrounds are plentiful:

24

• Cabot Guns released a set of pistols

engraved with prominent figures from Irish

history. Cabot Guns, The Ireland Pistols,

https://tinyurl.com/u6nr4ryd (last visited

Nov. 23, 2024).

• Winchester designed a rifle celebrating Chief

Crazy Horse, engraved with a depiction of an

Indian buffalo hunt. Connecticut Firearms

Auction, Winchester Chief Crazy Horse .3855 Rifle, https://tinyurl.com/92c48j24 (last

visited Nov. 23, 2024).

• Springfield Armory partnered with SK

Customs to release an Italian Renaissance

themed handgun, engraved with a recreation

of Da Vinci’s The Last Supper. Palmetto

State Armory, Springfield 1911 .45 ACP 5”

7rd Pistol, Limited Edition, SS / Italian

Renaissance Da Vinci, https://tinyurl.com/

4fk648zr (last visited Nov. 23, 2024).

It should be noted that a significant portion of gun

owners in the U.S. are of Hispanic descent. Katherine

Schaeffer, Key facts about Americans and guns,

Pew Research Center (Jul. 24, 2024), https://tinyurl.

com/3c4vbnwu. Mexico turns a common marketing practice

into something malicious, ignoring key demographics of

the U.S. gun market. Petitioners are not selling directly to

the cartels or encouraging and supporting crime. Instead,

they are appealing to normal, law-abiding customers

by associating their products with the military, law

enforcement, national heroes, and symbols of national

pride.

25

IV. The opinion below threatens the American firearms

industry.

The sovereign states of Antigua & Barbuda, Belize, the

Commonwealth of the Bahamas, Jamaica, and Trinidad &

Tobago filed a joint amicus brief in support of Mexico in

the court below. Brief for Latin American and Caribbean

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

Brands, Inc., et al., No. 22-1823 (2023). The purpose of their

brief was to inform the circuit court that although Mexico

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

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

nations with gun violence attributable to American gun

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

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

district court could order the manufacturers to make

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

19-24. Guns are being trafficked in other Latin American

countries. See Mark Wilson, Ecuador: The New Corridor

for South American Arms Trafficking, InSight Crime

(Oct. 4, 2021), https://insightcrime.org/news/ecuador-newcorridor-south-american-arms-trafficking/; Center For

American Progress, Frequently Asked Questions About

Gun Trafficking, Gun Violence Prevention FAQs (Aug.

20, 2021), https://www.americanprogress.org/article/

frequently-asked-questions-gun-trafficking/. In short, if

the opinion below stands, it could open the door to similar

cases from other governments.

American firearms companies will be threatened by

bankruptcy if more cases like Mexico’s proceed. Mexico

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

provide perspective, many of the Petitioners’ annual net

26

profits are well below this amount. For example, in 2023:

Sturm, Ruger & Co. reported a net profit of $48.2 million.

Sturm, Ruger & Co., Annual Report (Form 10-K) (Feb. 21,

2024); Smith & Wesson Brands, Inc. reported a net profit

of $39.6 million. Smith & Wesson Brands, Inc., Annual

Report (Form 10-K) (Jun. 20, 2024); Colt-CZ (the parent

company of defendant Colt’s Manufacturing Company

LLC) reported a net profit of $85.8 million. Colt CZ Group

SE, Annual Financial Report for 2023 (Apr. 23, 2024),

https://www.coltczgroup.com/file/1159.

Domestic weapons manufacture is a matter of national

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

See President John Adams, Fourth Annual Message to the

House of Representatives and the Senate (Nov. 22, 1800)

(addressing the issue of domestic armament manufacture).

The practical consequences of the opinion below are thus

significant.

V. Regulation through litigation threatens the

Constitution’s separation of powers.

Mass litigation against the firearms industry raises

separation of powers concerns. See 15 U.S.C. § 7901(a)

(8). Mass tort claims are an extension of the “dangerous

trend of regulating through litigation.” Howard M.

Erichson, Private Lawyers, Public Lawsuits: Plaintiffs’

Attorneys in Municipal Gun Litigation, in Suing the

Gun Industry: A Battle at the Crossroads of Gun Control

and Mass Torts 129, 143 (Timothy D. Lytton ed., 2005).

By accusing law-abiding gun manufacturers of liability

in gun crimes, “the municipalities are asking the courts

to make policy decisions, which should be made by the

legislature.” Lawrence S. Greenwald & Cynthia A. Shay,

27

Municipalities’ Suits Against Gun Manufacturers—

Legal Folly, 4 J. Health Care L. & Pol’y 13, 14-15 (2000).

The PLCAA prevents “efforts to achieve regulation by

litigation, in which groups seek to gain by judicial decree

policy goals which, from constitutional defect or lack of

political power, are unattainable through the legislative

process.” Travieso v. Glock Inc., 526 F. Supp. 3d 533, 538

(D. Ariz. 2021) (citations omitted). As the district court

noted, “[s]uch efforts are especially suspect where they

implicate the Court’s duty to defend rights protected by

the Constitution from attack.” Id.

CONCLUSION

The decision of the circuit court should be overturned.

Respectfully submitted,

Richard P. Hutchison

Landmark Legal

Foundation

3100 Broadway, Suite 1210

Kansas City, MO 64111

(816) 931-5559

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal

Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 544-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae