An undivided Supreme Court ruled 9-0 on Thursday in tossing out the Mexican government’s lawsuit against Smith & Wesson and many other major gun makers that alleged the companies were the proximate cause of cartel violence south of the border. In an opinion written by Justice Elena Kagan, the Court held that the lawsuit, filed with the support of gun control activists, is barred by the Protection of Lawful Commerce in Arms Act.
As Kagan explained:
The basic theory of its suit is that the defendants failed to exercise “reasonable care” to prevent trafficking of their guns into Mexico, and so are responsible for the harms arising there from the weapons’ misuse. That theory implicates PLCAA’s general prohibition, so the complaint tries to plead its way into the predicate exception. It alleges that the manufacturers were “willful accessories” in unlawful gun sales by retail gun dealers, which in turn enabled Mexican criminals to acquire guns. And it sets out three kinds of allegations relating to how the manufacturers aided and abetted retailers’ unlawful sales: The manufacturers allegedly (1) supply firearms to retail dealers whom they know illegally sell to Mexican gun traffickers; (2) have failed to impose the kind of controls on their distribution networks that would prevent illegal sales to Mexican traffickers; and (3) make “design and marketing decisions” intended to stimulate cartel members’ demand for their products. The District Court dismissed the complaint, but the First Circuit reversed ,finding Mexico had plausibly alleged that defendants aided and abetted illegal firearms sales.
The Court rejected each and every one of Mexico’s arguments, which were advanced by gun control activist Jonathan Lowy and his group Global Action on Gun Violence.
To begin, the complaint sets for itself a high bar. It does not pinpoint, as most aiding-and-abetting claims do, any specific criminal transactions that the defendants (allegedly) assisted. Instead, it levels a more general accusation: that all the manufacturers assist some number of unidentified rogue dealers in violation of various legal bars. The systemic nature of that charge cannot help but heighten Mexico’s burden. To survive, it must be backed by plausible allegations of pervasive, systemic, and culpable assistance.
All nine justices found that those claims weren’t plausible.
Mexico’s lead claim—that the manufacturers elect to sell guns to, among others, known rogue dealers—fails to clear that bar. For one thing, it is far from clear that such behavior, without more, could ever count as aiding and abetting under the Court’s precedents. And in any event, Mexico has not said enough to make its allegations on this point plausible: It does not confront that the manufacturers do not directly supply any dealers, and its complaint does not name alleged bad-apple dealers or provide grounds for thinking that anyone up the supply chain often acquires that information. What Mexico has plausibly alleged is only that manufacturers know some unidentified dealers routinely violate the law—but this describes “indifference” rather than assistance, similar to the insufficient allegations in Twitter.
Mexico’s second claim, that gun makers have failed to impose additional controls on their products that would prevent illegal sales, was also found lacking by SCOTUS.
Of course, responsible manufacturers mightwell impose constraints on their distribution chains to reduce the possibility of unlawful conduct. But a failure to do so is what Twittercalled “passive nonfeasance.” 598 U. S., at 500. Such “omissions” and“inactions”—especially in an already highly regulated industry—arerarely the stuff of aiding-and-abetting liability, and nothing in Mexico’s allegations makes them so.
What about Mexico’s claim that gun makers are essentially tooling their products to appeal to the drug cartels?
Mexico focuses on production of “military style” assault weapons, but these products are widely legal and purchased by ordinary consumers. Manufacturers cannot be charged with assisting criminal acts simply because Mexican cartel members also prefer these guns. The same applies to firearms with Spanish language names or graphics alluding to Mexican history—while they may be “coveted by the cartels,” they also may appeal to “millions of law-abiding Hispanic Americans.” Even the failure to make guns with non-defaceable serial numbers cannot show that manufacturers have “joined both mind and hand” with lawbreakers in the manner required for aiding and abetting.
Note that the Court has now unanimously agreed that AR-15s and other semi-automatic rifles are “widely legal and purchased by ordinary consumers”. In fact, Kagan’s opinion notes that “the AR-15 is the most popular rifle in the country”, which puts them squarely within the “common use” test the justices have laid out in Heller, McDonald, and Caetano. SCOTUS may have turned away a direct challenge to a ban on these arms, but today’s decision is a significant step toward the Court officially acknowledging that these arms are protected by the Second Amendment.
Justices Clarence Thomas and Ketanji Brown Jackson issued concurring opinions as well, with Thomas asserting that the Protection of Lawful Commerce in Arms Act “requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the ‘violation.’
Allowing plaintiffs to proffer mere allegations of a predicate violation would force many defendants in PLCAA litigation to litigate their criminal guilt in a civil proceeding, without thefull panoply of protections that we otherwise afford to criminal defendants. And, these defendants might even include ones who were cleared in an earlier proceeding, such as through a non-charging decision or a not-guilty or not-liable verdict. Such collateral adjudication would be at best highly unusual, and would likely raise serious constitutional questions that would counsel in favor of a narrower interpretation.
I think that’s absolutely right, and that would ensure that gun control activists can’t contort the language of the PLCAA to initiate baseless lawsuits that, if nothing else, cost these companies millions of dollars in legal fees.
Jackson’s concurring opinion, meanwhile, focused on Mexico’s “failure to allege any nonconclusory statutory violations in the first place.”
Tellingly, that failure exposes Mexico’s lawsuit as precisely what Congress passed PLCAA to prevent. PLCAA was Congress’s response to a flood of civil lawsuits that sought to hold the firearms industry responsible for downstream lawbreaking by third parties. Activists had deployed litigation in an effort to compel firearms manufacturers and associated entities to adopt safety measures and practices that exceeded what state or federal statutes required. PLCAA embodies Congress’s express rejection of such efforts—stymying those who, as Congress put it, sought “to accomplish through litigation that which they have been unable to achieve by legislation.” Put differently, PLCAA reflects Congress’s view that the democratic process, not litigation, should set the terms of gun control.
Viewed in light of this objective, Congress’s inclusion of the predicate exception makes perfect sense. The exception allows lawsuits to proceed—despite PLCAA’s general grant of immunity—if the complaint alleges that a gun manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.” §7903(5)(A)(iii). By tying the exception to statutory violations, Congress kept the door open to civil liability—but only liability flowing from duties that the People, rather than the courts, had chosen to impose.
Based on the questions during oral arguments I had a feeling that Mexico was going to lose this case, but it’s stunning to see a unanimous Court rule against them, not to mention one of the members of the Court’s progressive wing write the majority opinion. Justice Jackson’s concurrence is also a surprisingly strong condemnation of the attempts by the gun control lobby to impose new laws through litigation instead of legislation, and I’m pleasantly shocked to see her stance spelled out in no uncertain terms.
The case is now remanded back to the lower courts, where it should be dismissed outright. Personally, I’m hoping that Smith & Wesson and the other defendants next move will be to seek attorneys fees from the Mexican government. Mexico tried to sue them for $10 billion, but it’s the Mexican government who should have to cough up cold hard cash to pay for the companies’ defense against this junk lawsuit.
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