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

Supreme Court briefDec 3, 2024

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NO. 23-1141

In The

Supreme Court of the United States

____________________________

SMITH & WESSON BRANDS, INC., ET AL,

Petitioners,

ESTADOS UNIDOS MEXICANOS,

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the First Circuit

BRIEF OF THE NATIONAL ASSOCIATION FOR GUN

RIGHTS AND THE NATIONAL FOUNDATION FOR GUN

RIGHTS AS AMICI CURIAE IN SUPPORT OF PETITIONERS

JACOB WILLIAM ROTH

DHILLON LAW GROUP

INC.

1601 Forum Place

Suite 403

West Palm Beach,

FL 33401

December 3, 2024

GARY M. LAWKOWSKI

Counsel of Record

DHILLON LAW GROUP INC.

2121 Eisenhower Ave.

Suite 608

Alexandria, VA 22314

(703) 574-1654

glawkowski@dhillonlaw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

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

INTRODUCTION ........................................................ 1

SUMMARY OF THE ARGUMENT ............................ 3

ARGUMENT ................................................................ 4

I. The Ability to Manufacture and Sell Firearms

is Essential to the Right to Keep and Bear Arms ... 4

II. The First Circuit’s Opinion Directly Conflicts

with Congress’s Purpose in Adopting the PLCAA .. 7

III.

The First Circuit’s Opinion Impermissibly

Expands the Bounds of Proximate Cause ............... 8

A. Proximate Cause Has Traditionally Been

Limited .................................................................. 9

B. The First Circuit Takes an Expansive

Approach to Proximate Cause that Conflicts with

Its Traditionally Limited Scope.......................... 10

C. The Court Need Not Look Far to Find Other

Independent Causes of the Alleged Harms ....... 12

IV.

The First Circuit’s Opinion Conflicts with

this Court’s Recent Ruling in Twitter ................... 17

A. The Court in Twitter Took a More Limited

View of Aiding and Abetting Liability ............... 17

B. The First Circuit’s Opinion Contradicts the

Twitter Standard ................................................. 19

Direct Sales Is Inapt ....................................... 22

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Andrews v. State, 50 Tenn. 165 (1871) ....................... 5

Bank of America Corp. v. City of Miami,

581 U.S. 189 (2017) ...................... 8, 9, 10, 11, 12, 16

CSX Transportation Inc. v. McBride,

564 U.S. 685 (2011) .................................................. 9

Direct Sales Co. v. United States,

319 U.S. 703 (1943) .................................................. 4

Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003)....... 21

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) .................................... 5

Hill v. Colorado, 530 U.S. 703 (2000) ......................... 5

Morrison v. Olson, 487 U.S. 654 (1988) ...................... 1

Rubin v. United States, 449 U.S. 424 (1981) .............. 7

Teixeira v. Cnty. of Alameda,

873 F.3d 670 (9th Cir. 2017) .................................... 5

Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023) .......................... 4, 17, 18, 19, 21

Statutes

15 U.S.C. § 7901 .................................................. 2, 7, 8

IRC § 501 ..................................................................... 1

Other Authorities

DHS Secretary Alejandro Mayorkas Has Emboldened

Cartels, Criminals, and America’s Enemies: Phase

2 Interim Report at 3, House Committee on

Homeland Security Majority Report (Sept. 7, 2023

................................................................................. 15

Diane E. Davis, Undermining the Rule of Law:

Democratization and the Dark Side of Police

Reform in Mexico, 48.1 Latin American Politics &

Society 55 (2006) .................................................... 13

Ecclesiastes 1:9 (New American Bible)....................... 2

Foreign Operations Review: Mexico, Minority Report

of Senator Charles E. Grassley, Co-Chair, United

States Senate Caucus on International Narcotics

Control (Sept. 7, 2023), .......................................... 13

House Committee on Homeland Security Majority

Report (Sept. 7, 2023)....................................... 15, 16

Joseph G.S. Greenlee, The American Tradition of

Self-Made Arms, 54 St. Mary’s L.J. 35 (2023) .... 5, 6

Juan Montes, Mexico’s ‘Hugs, Not Bullets’ Crime

Policy Spreads Grief, Murder and Extortion, Wall

St. J. (Feb. 25, 2024),

https://www.wsj.com/world/americas/drug-cartelsexpand-murder-extortion-trafficking-146ede54.... 14

Mark Stevenson, Mexico appears to abandon its

‘hugs, not bullets’ strategy as bloodshed plagues the

country, Associated Press (Nov. 7, 2024 ................ 14

Miriam Jordan, Smuggling Migrants at the Border

Now a Billion-Dollar Business, N.Y. Times (Jul. 25,

2022),

https://www.nytimes.com/2022/07/25/us/migrantsmuggling-evolution.html ...................................... 15

Shannon K. O’Neil, AMLO’s ‘Hugs Not Bullets’ Is

Failing Mexico, Council on Foreign Relations (Oct.

23, 2019), https://www.cfr.org/blog/amlos-hugs-notbullets-failing-mexico ............................................. 14

Steven R. David, CATASTROPHIC CONSEQUENCES:

CIVIL WARS AND AMERICAN INTERESTS (2008). ...... 13

INTEREST OF AMICI CURIAE1

Amicus Curiae National Association for Gun

Rights, Inc. (“NAGR”) is a non-profit social welfare

organization exempt from income tax operating under

IRC section 501(c)(4). NAGR was established to

inform the public on matters related to the Second

Amendment, including publicizing the related voting

records and public positions of elected officials. NAGR

encourages and assists Americans in public

participation and communications with elected

officials and policymakers to promote and protect the

right to keep and bear arms through the legislative

and public policy process.

Amicus Curiae National Foundation for Gun

Rights, Inc. (“NFGR”) is a non-profit organization

exempt from income tax under IRC 501(c)(3). NFGR is

the legal wing of the NAGR and exists to defend the

Second Amendment in the court system.

INTRODUCTION

“Frequently, an issue of this sort will come

before the Court clad, so to speak, in sheep's clothing.

. . . But this wolf comes as a wolf.” Morrison v. Olson,

487 U.S. 654, 699 (1988) (Scalia, J., dissenting).

Personal ownership of firearms is a core part of

the Second Amendment right to keep and bear arms.

1 Pursuant to Rule 37.6, no counsel for a party authored this brief

in whole or in part; and no person other than amici curiae, its

members, or its counsel made a monetary contribution to this

brief’s preparation or submission.

But individuals can only keep and bear a firearm if

someone first creates one. Thus, the manufacture and

sale of firearms is a necessary precondition for

exercising Second Amendment rights.

Perhaps recognizing this, several activists and

local government entities brought a series of dubious

lawsuits against American gun manufacturers two

decades ago seeking to convince courts to impose

restrictions by judicial fiat that they could not obtain

through the political process.

These suits prompted a reaction from Congress:

the adoption of the Protection of Lawful Commerce in

Arms Act (“PLCAA”) to prevent activist groups from

using the judiciary to affect an end run around the

Second Amendment. See 15 U.S.C. § 7901(b)(1).

Ecclesiastes counsels, “What has been, that will

be; what has been done, that will be done. Nothing is

new under the sun!” Ecclesiastes 1:9. And so it is here

with strategic litigation. Nearly twenty years after the

adoption of the PLCAA, activists, once more

disappointed and impatient with their inability to

convince the American people of the wisdom of their

policies, have turned to the courts to obtain the

outcomes they have failed to get from Congress.

Now, however, Plaintiffs have added a new

wrinkle—a foreign power bringing suit in the United

States to undermine the constitutional and statutory

rights of American citizens. Respondent Estados

Unidos Mexicanos (“Mexico”) suffers from real issues

of crime and violence, which it now tries to attribute

to the American firearms industry’s general

commercial conduct. But those issues result from and

are impacted by a complex series of state-level

decisions, including many of Mexico’s own policies

towards addressing corruption and organized crime.

And they do not change the basic reality: the PLCAA

was adopted to stop precisely this sort of litigation.

The First Circuit erred in finding anything

distinguishable about the PLCAA’s application to this

case. It is precisely what it appears to be: an attempt

to affect an end run around the PLCAA and hold

firearms manufacturers responsible for criminal

activity by third parties. The decision of the First

Circuit should be reversed.

SUMMARY OF THE ARGUMENT

The manufacture and sale of firearms is a

crucial part of the Second Amendment going back to

our nation's founding. Indeed, a private right to keep

and bear arms inherently depends on the ability of

citizens to obtain them in the first place.

The PLCAA was adopted with this concern

front and center. Congress explicitly recognized the

threat that politically motivated lawsuits pose to

firearms manufacturers and distributors’ ability to

operate and, therefore, to Americans’ right to keep and

bear arms. It acted to prevent this threat by

foreclosing the ability of activist groups—be they

private citizens, local governments, or foreign

powers—to impose policies on the American people

through the courts that they failed to obtain through

the legislature.

The First Circuit’s opinion disregards this

explicit purpose. In doing so, it dramatically expands

proximate cause beyond what the common law, this

Court’s prior jurisprudence, and common sense can

bear.

The First Circuit’s opinion also greatly expands

aiding and abetting liability in contravention of this

Court’s recent decision in Twitter, Inc. v. Taamneh,

598 U.S. 471 (2023). Twitter was clear in holding that

a business’s mere inaction in the face of downstream

wrongdoing by a third party is not enough to establish

aiding-and-abetting liability absent strong evidence of

the business’s specific intent to render assistance. Yet

the First Circuit found that Mexico’s allegations of

mere inaction by Petitioners were enough on their own

to support aiding-and-abetting liability without

anything further.

Finally, the First Circuit heavily relies on

Direct Sales Co. v. United States, 319 U.S. 703 (1943).

But the facts of this case are materially

distinguishable from Direct Sales and the Court in

Direct Sales specifically distinguished civilian

firearms from the kind of inherently dangerous

commodities that case concerned.

ARGUMENT

The Ability to Manufacture and Sell

Firearms is Essential to the Right to

Keep and Bear Arms

Justice Scalia counseled, “[t]here comes a point

. . . at which the regulation of action intimately and

unavoidably connected with [a constitutional right] is

a regulation of [that right] itself.” Hill v. Colorado, 530

U.S. 703, 745 (2000) (Scalia, J., dissenting); see also

Joseph G.S. Greenlee, The American Tradition of SelfMade Arms, 54 St. Mary’s L.J. 35, 41-45 (2023) (using

Hill as a starting point to explain why the Second

Amendment protects the acquisition of firearms).

As far back as at least 1871, the Supreme Court

of Tennessee recognized “[t]he right to keep arms,

necessarily involves the right to purchase them, to

keep them in a state of efficiency for use, and to

purchase and provide ammunition suitable for such

arms, and to keep them in repair.” Andrews v. State,

50 Tenn. 165, 178–79 (1871).

More recently, the Seventh and Ninth Circuits

recognized a similar principle. According to the Ninth

Circuit, “the core Second Amendment right to keep

and bear arms for self-defense ‘wouldn’t mean much’

without the ability to acquire arms.” Teixeira v. Cnty.

of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (quoting

Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.

2011)); see also Ezell, 651 F.3d at 704 (“The right to

possess

firearms

for

protection

implies

corresponding right to acquire and maintain

proficiency in their use ….”).

This is consistent with our nation’s rich history

of firearms manufacturing. Gunsmiths, necessary for

the production and repair of firearms, were early and

crucial features of the American colonial experience,

with gunsmiths arriving in the colonies no later than

1621.2 As one firearms historian observed, “The

influence of the gunsmith and the production of

firearms on nearly every aspect of colonial endeavor in

North America cannot be overstated, and that

pervasive influence continuously escalated following

the colonial era.”3

This experience continued through the

Revolutionary period, particularly in the face of

British attempts to ban the importation of firearms.

As a result, “the fact that domestic arms production

maintained the colonies through the arms shortage

during the war,” along with “Britain’s attempts to ban

arms imports and prevent domestic production were

fresh wounds when the Founders ratified the Second

Amendment.”4

As the colonial and revolutionary experience

showed, and as the courts have recognized, the ability

2 See Joseph G.S. Greenlee, The American Tradition of Self-Made

Arms, 54 St. Mary’s L.J. 35, 46 (2023) (“In 1621, ‘the Plymouth

Company hired London armorer William Pitt who arrived’ in the

Plymouth Colony ‘on the Fortune in November, 1621.’[] . . . In

1630, Eltweed Pomeroy founded a gunsmithery in Massachusetts

Bay Colony.[] . . . Maryland had gunsmiths by 1631, a year before

the colony was chartered; Salem, Massachusetts had a gunsmith

by 1632; New Haven had an armorer by 1640; New Amsterdam

had a gunsmith by 1646; and Boston had three gunsmiths by

1650.[]” (citations omitted)).

3 Id. (quoting M. L. Brown, FIREARMS IN COLONIAL

AMERICA 149 (1980)).

4 Id. at 61 (quoting M. L. Brown, FIREARMS IN COLONIAL

AMERICA 149 (1980)).

to manufacture firearms is an indispensable

prerequisite for the right to keep and bear arms.

II.

The First Circuit’s Opinion Directly

Conflicts with Congress’s Purpose in

Adopting the PLCAA

An interpretation or application of a statute

cannot hold when it “not only is cramped” but conflicts

with a statute’s “plain meaning…and its purpose as

well.” Rubin v. United States, 449 U.S. 424, 431 (1981).

In recognition of the intimate link between the ability

to manufacture firearms and the personal right to

keep and bear arms, Congress adopted the PLCAA to

protect the former as a means to secure the latter.

The PLCAA’s purpose is plain, straightforward,

and directly conflicts with the First Circuit’s opinion.

Congress saw fit to include a “lengthy preamble”

stating several findings and explaining the purpose of

the PLCAA. App. 230Aa. One express purpose is “[t]o

preserve a citizen’s access to a supply of firearms and

ammunition for all lawful purposes, including

hunting, self-defense, collecting, and competitive or

recreational shooting.” 15 U.S.C. § 7901(b)(2).

Congress believed that it was necessary to

adopt legislation to further this purpose because

“[l]awsuits

have

been

commenced

against

manufacturers, distributors, dealers, and importers of

firearms that operate as designed and intended, which

seek money damages and other relief for the harm

caused by the misuse of firearms by third parties,

including criminals.” Id. at (a)(3). Per Congress, “[t]he

possibility of imposing liability on an entire industry

for harm that is solely caused by others is an abuse of

the legal system, erodes public confidence in our

Nation’s laws, threatens the diminution of a basic

constitutional right 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.” Id. at (a)(6).

Congress’s findings and purposes make clear

that the PLCAA was designed and intended to protect

the Second Amendment rights of American citizens by

safeguarding firearms manufacturers from activist

lawsuits aimed at regulating or destroying their

business based on third-party wrongdoing.

The effect of this suit would be to crush the

American firearms industry into conformity with

Mexico’s own draconian firearms laws by imposing

liability on them for the wrongful acts of third parties.

This wolf comes as a wolf and is irreconcilable with the

avowed purpose of the PLCAA.

III.

The

First

Circuit’s

Opinion

Impermissibly Expands the Bounds of

Proximate Cause

To evade the plain meaning of the PLCAA, the

First Circuit took the concepts of proximate cause

beyond what it could traditionally bear, “invit[ing] the

disassembly and destabilization of other industries

and economic sectors.” See 15 U.S.C. § 7901(a)(6). To

do so, it watered down the common law approach to

proximate cause to little more than a foreseeability

test in contravention of this Court’s ruling in Bank of

America Corporation v. City of Miami, 581 U.S. 189

(2017), and shifted responsibility for harms caused by

state-level policy failures onto American firearms

manufacturers.

A. Proximate Cause Has Traditionally

Been Limited

As Chief Justice Roberts explained, “[i]n a

philosophical sense, the consequences of an act go

forward to eternity,” but “[l]aw ... is not philosophy,

and the concept of proximate cause developed at

common law in response to the perceived need to

distinguish ‘but for’ causes from those more direct

causes of injury that can form the basis for liability at

law.” CSX Transportation Inc. v. McBride,

564 U.S. 685, 706-07 (2011) (Roberts, C.J., dissenting)

(cleaned up).

“[B]ecause of convenience, of public policy, of a

rough sense of justice, the law arbitrarily declines to

trace a series of events beyond a certain point.” CSX

Transp. Inc., 564 U.S. at 692–93 (quoting Palsgraf v.

Long Island R.R. Co., 248 N.Y. 339, 352 (1928)

(Andrews, J., dissenting). The reach of proximate

cause has historically been interpreted narrowly.

Indeed, traditionally, “[s]ome courts cut off liability if

a ‘proximate cause’ was not the sole proximate cause.”

Id. at 693 (citing W. Keeton, D. Dobbs, R. Keeton, &

D. Owen, Prosser and Keeton on Law of Torts § 65, p.

452 (5th ed. 1984)).

At minimum though, “foreseeability alone is not

sufficient to establish proximate cause ....” Bank of

Am. Corp., 581 U.S. at 201.

B. The First Circuit Takes an Expansive

Approach to Proximate Cause that

Conflicts with Its Traditionally Limited

Scope

To evade the plain purpose of the PLCAA, the

First Circuit watered down the causal chain required

to establish proximate cause.

The First Circuit asserted that “Mexico’s claim

of proximate cause is straightforward: defendants aid

and abet the trafficking of guns to the Mexican drug

cartels, and this trafficking has foreseeably required

the Mexican government to incur significant costs in

response to the increased threats and violence

accompanying drug cartels armed with an arsenal of

military-grade weapons.” App. at 310a (emphasis

added). These “costs” include “costs of additional

medical, mental health, and other services for victims

and their families; costs of increased law enforcement,

including specialized training for military and policy;

costs of the increased burden on Mexico’s judicial

system’ diminished property values; and decreased

revenues from business investment and economic

activity.” Id. at 272a.

This “straightforward” chain is little better

than the broad “foreseeability” analysis this Court

rejected in Bank of America. There, much like Mexico’s

aiding and abetting claims against Petitioners, the

City of Miami alleged that a Fair Housing Act (FHA)

violation by two banks caused the City a litany of

wide-reaching issues related to its efforts to “assure

racial integration” and secure “the benefits of an

integrated community.” Bank of Am., 581 U.S. at 19394. This Court thus had to answer: “Did the Banks’

allegedly

discriminatory

lending

practices

proximately cause the City to lose property-tax

revenue and spend more on municipal services?” Id. at

201.

The Court’s answer was an emphatic, “no.” The

City’s theory of causation was simply “too remote” to

sustain proximate cause. Because “[t]he housing

market is interconnected with economic and social

life,” a “violation of the FHA may [] ‘be expected to

cause ripples of harm to flow’ far beyond the

defendant[s’] misconduct.’” Id. at 202 (quoting

Associated Gen. Contractors of Cal., Inc. v. Carpenters,

459 U.S. 519, 534 (1983)). And because “[n]othing in

the statute suggests that Congress intended to provide

a remedy wherever those ripples travel,” “entertaining

suits to recover damages for any foreseeable result of

an FHA violation would risk ‘massive and complex

damages litigation.’” Id. (quoting Associated Gen.

Contractors, 459 U.S. at 545).

Here, the same concerns apply as in Bank of

America, but in heightened fashion: the firearms

market is not only interconnected with American

economic and social life, but also with the deepest

foundations of America’s political culture and

Americans’ relationship to their government. Not only

does the PLCAA not contain anything to suggest

Congress intended to provide a remedy wherever

“ripples of harm” from a violation may flow, but its

very raison dêtre is to prohibit a cause of action based

on the mere foreseeability of “ripples of harm,” and to

thereby spare the firearms industry the kind “massive

and complex damages litigation” that would result.

C. The Court Need Not Look Far to Find

Other Independent Causes of the

Alleged Harms

As Justice Thomas observed in his concurring

opinion, “[t]he Court of Appeals will not need to look

far to discern other, independent events that might

well have caused the injuries [plaintiff] alleges in

these cases.” Bank of Am., 581 U.S. at 212 (Thomas,

J., concurring in part and dissenting in part). Here too,

the Court need not look far to find “independent

events” that can more readily explain Mexico’s alleged

injuries related to law enforcement, medical, judicial,

and economic costs. Unsurprisingly, state-level costs

related to state-level issues are far more tied to statelevel policies—including Mexico’s own policies—than

they are to Petitioners’ market activity.

In finding Petitioner manufacturers and

distributors liable for Mexico’s failure to properly

police its own territory, the First Circuit ignored the

obvious and more important alternative causes of the

rise in cartel violence stemming from Mexico’s own

actions and inactions. For example, a recent report by

Senator Grassley found “government corruption was

critical to growing the Sinaloa Cartel” and quoted

cartel members as saying, “[T]he Cartel doesn’t

function without the government’s help.” See Foreign

Operations Review: Mexico at 3, Minority Report of

Senator Charles E. Grassley, Co-Chair, United States

Senate Caucus on International Narcotics Control

(Sept.

2023),

https://www.grassley.senate.gov/imo/media/doc/grassl

ey_foreign_ops_in_mexico_report2.pdf; see also id. at

10 (“For decades, the U.S. government repeatedly

turned a blind-eye to extensive corruption in

Mexico.”).

Unfortunately, corruption has impacted every

level of Mexico’s efforts to combat the cartels. When

Mexico attempted to create two supposedly

incorruptible federal police agencies; the Federal

Agency of Investigation (AFI) and the Subattorney

General’s Office for Special Investigation or Organized

Delinquency (SEIDO), they both were rapidly and

deeply infiltrated by drug cartels, with “457 AFI

officers indicted on corruption charges by 2005” and

the head of SEIDO imprisoned for working with

cartels in 2008. Diane E. Davis, Undermining the Rule

of Law: Democratization and the Dark Side of Police

Reform in Mexico, 48.1 Latin American Politics &

Society 55, 73 (2006); Steven R. David, CATASTROPHIC

CONSEQUENCES: CIVIL WARS AND AMERICAN INTERESTS

108-09. Still worse Mexico has repeatedly had to

replace entire police forces with the military and send

the military to step in when local police have been too

corrupt to properly function. Steven R. David,

CATASTROPHIC CONSEQUENCES: CIVIL WARS AND

AMERICAN INTERESTS 108-09 (2008).

Cartel violence can also be linked to Mexico’s

decision to respond to narco-terrorism with pacifistic

policies. Upon taking office in 2018, former President

Andrés Manuel López Obrador instituted a widely

derided “hugs, not bullets” policy that gave freedom of

action to the very cartels that Mexico now blames

Petitioners for enabling. See Juan Montes, Mexico’s

‘Hugs, Not Bullets’ Crime Policy Spreads Grief,

Murder and Extortion, Wall St. J. (Feb. 25, 2024),

https://www.wsj.com/world/americas/drug-cartelsexpand-murder-extortion-trafficking-146ede54.

Its

result: “[a]rrests by Mexico’s national guard … fell to

2,800 in 2022 from 21,700 in 2018,” “[e]xtortion has

surged since 2018,” and “[o]rganized crime groups

operated in 29% of Mexico’s municipalities in 2020”

compared “compare[d] with 16% in 2017.” Id. As the

Wall Street Journal put it, “[c]riminal gangs behind

the U.S. drug epidemic are seeing accelerated growth,

commanding greater control over more territory in

Mexico, where they are largely free to murder rivals,

neuter police, seize property and strong-arm

municipalities into giving them public contracts.” Id.;

see also generally Shannon K. O’Neil, AMLO’s ‘Hugs

Not Bullets’ Is Failing Mexico, Council on Foreign

Relations

(Oct.

23,

2019),

https://www.cfr.org/blog/amlos-hugs-not-bulletsfailing-mexico.

That policies like “hugs not bullets” and

corruption have been sources of Mexico’s woes has

been recognized implicitly by Mexico’s new President,

Claudia Sheinbaum, who recently abandoned the

“hugs not bullets” approach. See Mark Stevenson,

Mexico appears to abandon its ‘hugs, not bullets’

strategy as bloodshed plagues the country, Associated

Press

(Nov.

2024),

https://apnews.com/article/mexico-drug-cartelsmigrants-hugs-not-bullets-violence5cf8bbefe68ea9762a0bdd23868029f3. It makes no

sense to attribute cartel violence to American firearms

manufactures when Mexico’s own voters and

government have recognized that its failed policies are

tied to cartel violence and must be changed to fight it.

By the same token, cartel violence can also be

far more readily attributed to lax U.S. policy towards

the U.S.-Mexico border under the outgoing

presidential administration than to Petitioners’

alleged conduct. How U.S. officials approach the

Southern border has a dramatic effect on the

operations of Mexican cartels: affecting their ability to

profit from smuggling drugs, contraband, and people

across the border and thereby also affecting their

ability to fund their operations in Mexico. See DHS

Secretary Alejandro Mayorkas Has Emboldened

Cartels, Criminals, and America’s Enemies: Phase 2

Interim Report at 3, House Committee on Homeland

Security

Majority

Report

(Sept.

2023),

https://homeland.house.gov/wpcontent/uploads/2023/09/09.07-Phase-2-Final.pdf.

The cartels’ war chests for wreaking havoc in

Mexico grow and shrink depending on how lax or

strong U.S. border enforcement is; over the last

several years, weak U.S. security of the border stoked

illegal migration, an industry that the cartels control,

enriching them immensely. Id at 9-10; see generally

Miriam Jordan, Smuggling Migrants at the Border

Now a Billion-Dollar Business, N.Y. Times (Jul. 25,

2022),

https://www.nytimes.com/2022/07/25/us/migrantsmuggling-evolution.html (“Migrant smuggling on the

U.S. southern border has evolved over the past 10

years from a scattered network of freelance “coyotes”

into a multi-billion-dollar international business

controlled by organized crime, including some of

Mexico’s most violent drug cartels.”).

Indeed, it is to the point that “the cartels are no

longer just ‘drug cartels’” because “human smuggling

and trafficking have become central to their business

model:” the cartels are estimated to have made as

much as $13 billion from human smuggling alone in

2021; a year in which U.S. Customs and Border

Protection recorded 1.5 million encounters at the

southwestern border. House Committee on Homeland

Security Majority Report at 9-10.

Expanded cartel violence is thus a far more

“foreseeable” result of Mexico’s unfortunate history of

public corruption and failed law enforcement policies

and of the U.S.’s lax border policies over the past four

years that enrich the cartels, than it is of Petitioners’

business conduct.

At the very least, the state-level policies

implemented to address state-level social problems by

two of the world’s largest nations, across one of its

longest borders, are obvious confounding variables

that highlight the extent to which the First Circuit’s

proximate cause analysis is out of step with the

Court’s traditional and more limited notions of

proximate cause’s boundaries, as expressed in Bank of

America.

IV.

The First Circuit’s Opinion Conflicts

with this Court’s Recent Ruling in

Twitter

A. The Court in Twitter Took a More

Limited View of Aiding and Abetting

Liability

In addition to lowering the bar for proximate

cause below what the common law would bear, the

First Circuit also lowered the bar for aiding and

abetting liability below what this Court permitted in

Twitter. In Twitter, the Court examined the common

law framework for aiding and abetting liability. The

Twitter plaintiffs alleged—in a manner strikingly

similar to Mexico’s arguments regarding Petitioners’

practices—that

the

defendant

social

media

companies—Twitter, YouTube, and Facebook—aidedand-abetted an ISIS terror attack by providing

communication platforms for ISIS to recruit,

fundraise for, and coordinate its attacks. See Twitter,

598 U.S. at 481–82. The Court rejected the plaintiffs’

claims because “the only affirmative ‘conduct’ [the

social media defendants] allegedly undertook was

creating their platforms and setting up their

algorithms to display content relevant to user inputs

and user history” and because the plaintiffs did not

allege that, “after defendants established their

platforms, they gave ISIS any special treatment or

words of encouragement,” nor “selected or took any

action at all with respect to ISIS’ content ....” Id. at

498. Instead, “[b]y [the] plaintiffs’ own allegations,

[the defendants] appear[ed] to transmit most content

without inspecting it.” Id. at 499.

In Twitter, the Court warned that “[i]f aidingand-abetting liability were taken too far, then

ordinary merchants could become liable for any

misuse of their goods and services, no matter how

attenuated their relationship with the wrongdoer.” Id.

at 489. A concern that is notably similar to the concern

expressed by Congress in adopting the PLCAA.

To avoid an overly broad application of aidingand-abetting liability, “the defendant [must] have

given knowing and substantial assistance to the

primary tortfeasor,” id. at 491, “lest mostly passive

actors like banks become liable for all their customers’

crimes by virtue of carrying out routine transactions.”

Id. at 490–91. Twitter noted these requirements

“work[] in tandem, with a lesser showing of one

demanding a greater showing of the other” when

determining whether a “defendant consciously and

culpably participated in a wrongful act so as to help

make it succeed.” Id. (citations omitted) (cleaned up).

On this basis, assistance that is “less substantial” and

does not speak for itself regarding the defendant’s

intent requires a showing of “more scienter before a

court [can] infer conscious and culpable assistance.”

Id. at 492 (citing Woodward v. Metro Bank of Dallas,

522 F.2d 84, 97 (5th Cir. 1975)). “[I]naction cannot

create liability as an aider and abettor” absent a duty

to act.” Id. at 491 (quoting Zoelsch v. Arthur Andersen

& Co., 824 F.2d 27, 36 (D.C. Cir. 1987)).

In this vein, a business’s otherwise neutral

commercial activity does not constitute “substantial”

assistance when it benefits wrongdoers but is not

otherwise targeted to them. Id. at 500. Because such

assistance is not “substantial,” a plaintiff “would need

[to provide] some other very good reason to think that”

the defendant was “consciously trying to help or

otherwise participate in” the underlying wrongdoing

based on this conduct, such as by an “act of

encouraging, soliciting, or advising the commission of

the [wrongdoing].” Id.

B. The First Circuit’s Opinion Contradicts

the Twitter Standard

The First Circuit’s opinion is in tension with

Twitter and directly conflicts with its reasoning by

drastically lowering the standard for establishing

aiding-and-abetting liability.

In Twitter, this Court confirmed that a

“defendant has to take some ‘affirmative act,’” such as

“abetting, inducing, encouraging, soliciting, or

advising” the wrongdoing to be liable, and warned that

“culpable conduct” of that sort is necessary “lest

mostly passive actors like banks become liable for all

their customers’ crimes by virtue of carrying out

routine transactions.” Id. at 490–91. In this vein, the

Court affirmed that “inaction cannot create liability as

an aider and abettor” absent a duty to act.” Id. at 491

(quoting Zoelsch v. Arthur Andersen & Co., 824 F.2d

27, 36 (D.C. Cir. 1987)). Yet, the First Circuit found

that Petitioners could be liable for aiding-and-abetting

illegal firearms sales to cartels based solely on

Mexico’s various allegations that Petitioners passively

failed to prevent or discourage third parties from

making illegal sales.

Mexico alleges that Petitioners assisted illegal

sales to cartels in three ways: by maintaining a handsoff sales policy towards third-party gun dealers, by

designing and marketing firearms that cartels happen

to find appealing, and by not producing firearms with

more durable serial numbers. For each of these

supposed methods of assistance to cartels, Mexico’s

complaint is nothing more than that Petitioners knew

that their conduct provided an incidental benefit to

illegal cartel sales and could have acted otherwise (by

imposing Mexico’s preferred style of harsh gun-control

style policies) but chose not.

For Petitioners’ sales policies with third-party

dealers, Mexico alleges that Petitioners were “willfully

blind” in failing to implement “any public-safetyrelated monitoring or disciplining controls on their

distribution systems” despite knowing that some

firearms ended up trafficked to cartels. Compl. ¶¶ 7,

15; see also Compl. ¶¶ 205-07, 227-30, 236, 245-47. For

Petitioners’ firearms designs and marketing, Mexico

alleges that Petitioners were willfully indifferent and

irresponsible in failing to alter their products’ designs

and marketing after learning that the cartels found

them appealing. Compl. ¶¶ 8-13, 321-52. And for the

serial numbers on Petitioners’ firearms, Mexico

alleges that Petitioners irresponsibly failed to produce

firearms with serial numbers that are more difficult to

deface in light of how less durable serial numbers are

incidentally appealing to cartels. Compl. ¶¶ 365-66.

In each instance, the root of Mexico’s complaint

is that Petitioners failed to radically change how they

conduct their business based solely upon learning that

it incidentally benefitted wrongdoers who were

downstream of them in the chain of commerce. The

First Circuit erred in finding that these allegations

could sustain aiding-and-abetting liability because

this Court has decisively rejected the notion that

either “passive” “inaction” or a product’s incidental

appeal to wrongdoers on the same basis as any

ordinary user can sustain liability. See Twitter, 598

U.S. at 499 (rejecting the notion that aiding-andabetting liability can be established based on

wrongdoers finding that a product’s mainstream

features are useful in their crimes); see also Doe v.

GTE Corp., 347 F.3d 655, 659 (7th Cir. 2003) (listing

examples of how businesses with goods/services that

provide incidental benefits to wrongdoers are

obviously

not liable for aiding-and-abetting

wrongdoing).

Additionally, because Petitioners’ alleged

conduct is “mere inaction” that cannot establish

culpability on its own, Mexico must establish “more

scienter” by Petitioners regarding their alleged intent

to assist wrongdoing. 598 U.S. at 492. But Mexico fails

to do so. For Petitioners’ sales practices, firearms

design and marketing, and serial number production,

Mexico alleges nothing more than that Petitioners

were irresponsible and should have known better; not

that Petitioners had any specific intent to assist illegal

sales. See Compl. ¶¶ 7-15, 205-07, 227-30, 236, 245-47,

321-52, 365-66.

Mexico thus fails to satisfy Twitter’s standard

for alleging aiding-and-abetting liability and the First

Circuit erred in finding otherwise.

Direct Sales Is Inapt

The First Circuit further erred in asserting that

“[t]he allegations here are also remarkably analogous

to the facts in Direct Sales Co. v. United States, 319

U.S. 703 (1943).” App. 302a. Direct Sales is an inapt

comparison to the present case with distinct and

unbridgeable factual differences.

In Direct Sales, the Court affirmed a drug

company’s conviction for conspiracy to illegally sell

morphine based on conduct that abetted a doctor who

engaged in black-market sales. The Court found that

the company had plausibly assisted the illegal sales in

multiple ways: it specifically sold its morphine in unitamounts that were too large for legitimate use and

thereby exclusively appealed to black market sellers,

Direct Sales, 319 U.S. at 706–07; its marketing sought

out and cultivated illegal sales by offering selective

discounts for the type of higher unit-amounts that had

no legitimate purpose, id.; its customers were

disproportionately doctors who sold to the black

market, id.; and it had a financial stake in the illegal

sales, id. at 713. While these practices were each

facially legal on their own, the Court found that they

constituted culpable assistance to illegal sales when

considered together because the morphine being sold

was a dangerous, addictive, and restricted product

with only a very narrow and highly regulated

legitimate use. Id. at 710–11.

Contrary to the First Circuit’s opinion, Mexico’s

allegations do not track with the facts in Direct Sales.

Whereas, the defendant-company’s sales practices in

Direct Sales exclusively appealed to black-market

sellers and had no appeal or utility to legitimate users,

here Mexico does not plausibly allege that Petitioners’

firearms designs and marketing are exclusively

appealing to cartels rather than the general legitimate

market, see supra III. Nor does Mexico allege that

Petitioners disproportionately sell to dealers or

distributors who engage in illegal sales.

Furthermore, it was essential to the Court’s

decision in Direct Sales that the product at issue,

morphine, is an inherently dangerous commodity that

could legally only be sold for highly particular uses:

because morphine’s use-case is so limited, the

defendant’s practices could easily be recognized on

their face as intended to assist illegal sales. Id. at 71011. The Court specifically distinguished civilian rifles,

which it compared to other “articles of free commerce”

like “sugar” and “cans,” from an inherently dangerous

product like morphine, which is “incapable of further

legal use except by compliance with rigid regulations”

due to its inherent “susceptibility to harmful and

illegal use.” Id. at 710.

The only point of overlap between the conduct

Mexico alleges and that in Direct Sales is Mexico’s

allegation that Petitioners have a financial stake in

the cartel market. See Compl. ¶¶ 389–90. But this

amounts to nothing on its own: though the Court in

Direct Sales found that the defendant-company’s

financial stake in the illegal morphine sales was not

“irrelevant,” it also found that it was “not essential,”

and it was otherwise not important to the Court’s

analysis, serving as an ornament atop the rest of the

substantive evidence rather than as a load-bearing

pillar. See Direct Sales, 319 U.S. at 713.

Accordingly, Direct Sales is an inapt

comparison to the present facts and does not lend the

support to the First Circuit’s analysis that it believes

it does.

CONCLUSION

The federal courts should not be the refuge for

foreign governments seeking to avoid responsibility

for their own domestic policy failures, nor the venue

for foreign governments to infringe upon the

Constitutional rights of American citizens.

Amici curiae respectfully requests that this

Court reverse the First Circuit’s decision.

Respectfully submitted,