Should U.S. gun manufacturers who flood weapons dealers in border states with the guns that drive cartel violence in Mexico be held liable in court?
The Supreme Court heard arguments last week about whether a case brought by the Mexican government can go to trial. The gun industry is armed with a congressionally-tailored shield against liability for its deadly products. But the novel Mexican lawsuit seeks to bypass a 2005 law known as the Protection of Legal Commerce in Arms Act (PLCAA) by arguing that U.S. gunmakers negligently distribute arms to fly-by-night gun shops that are known to arm the Mexican drug cartels.
The case has reached the high court without ever going to trial. It was dismissed initially at the circuit level where a federal judge ruled that PLCCA forestalled the lawsuit. A federal appeals court reversed that ruling, however, finding the merits of the case deserve to be heard. The conservative Supreme Court is now weighing the matter. Its ruling, expected later this year, could either embolden the gun industry’s worst practices by declaring them, for lack of a better term, bulletproof. Or it could expose them to untold liability for the havoc wreaked in Mexico by drug cartels that have built military-grade arsenals — as U.S. gunmakers looked the other way, and turned a tidy profit.
To better understand the legal claims in this case, Rolling Stone spoke to one of the lawyers on the Mexican side, Jonathan Lowy, the founder of a legal group called Global Action on Gun Violence. Lowy is a longtime litigator on gun violence, who worked for 25 years with the organization Brady, which fights gun violence domestically.
Lowy was involved in turn-of-the-century lawsuits, brought by cities that — inspired by the litigation against Big Tobacco — sought to hold gunmakers responsible for the public harms created by their products. (Those suits inspired industry to lobby for and secure the passage of the PLCAA shield law in the George W. Bush era.) Lowy has been a part of litigation seeking to poke holes in PLCAA ever since, as well as myriad legal actions highlighting the regulatory failures of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) which hasn’t held rogue gun dealers to account.
“I’ve been involved in most gun lawsuits against gun manufacturers and gun dealers since 1997,” Lowy says, jokingly comparing himself to “Zelig or Forrest Gump.” Lowy, 62, launched Global Action on Gun Violence a couple of years ago, inspired by his work on the Mexican case. “I saw that Mexico was willing to take bold action to address this huge problem,” he says. “I felt the international aspects of U.S. gun policy offered new pressure points for change.”
The transcript that follow has been edited for length and clarity.
Why should people in the U.S. be concerned about the flow of illegal guns to Mexico?
This impacts huge policy issues: the fentanyl crisis, opioid overdoses, migration, the spread of transnational crime. These big issues in the U.S. are all fueled by U.S. gun industry practices that are supplying the cartels.
There should be general agreement on wanting to stop the pipeline of guns. President Trump just designated the cartels as foreign terrorist organizations. Trump has said that stopping the cartels is a top priority. There’s been some suggestion that U.S. military troops could be used. Do we want our troops to be shot at and perhaps killed with U.S. guns?
There’s also general consensus, between red states and blue states, about stopping the opioid crisis and fentanyl coming across the border. That only happens because of the arms the cartels have. And migration [to the U.S.] is spurred by the violence in Mexico — violence committed with U.S. guns that are trafficked from the gun industry.
These are issues that either cut across politics or are even of greater concern to conservatives and Republicans. And all of them require stopping the iron pipeline of guns to Mexico.
Can you explain the sales dynamic that fuels cartel violence?
Mexico has strong gun laws. One gun store in the whole country. It’s very difficult for criminals to get guns there. But it’s extremely easy for them to get guns through the U.S. gun industry, sold by U.S. gun shops. That’s the basic problem Mexico is trying to address.
They’ve got this flood of guns pouring across the border. And that it makes it extremely difficult to stop the cartels, when they have as much firepower as they do, and it’s continually replenished.
The cartels are spawned by U.S. guns and the U.S. gun industry. The way to stop that is to cut off the crime-gun pipeline at the source, to shut off the spigot.
To what extent is this illegal flow of guns a problem of the gun manufacturers actively participating versus turning a blind eye?
With a lot of the issues that the Mexico case involves, we have found in other litigation that the gun industry knows about the problem they’re creating. The gun manufacturers in the U.S. have known for over 30 years that they are a huge part of the problem of criminal gun violence. They have been told by the U.S. government; by insiders within the gun industry; by their own gun dealers; and by ATF that the reason that criminals get guns is because there’s a small percentage of gun dealers that, either recklessly or illegally, sell guns to obvious straw buyers and traffickers.
Over 20 years ago, ATF reported that about 90 percent of gun dealers sell zero crime guns in a given year. But about 5 percent of gun dealers sell about 90 percent of crime guns. If you slice it thinner, about 1 percent of gun dealers sell over 50 percent of crime guns.
In every profession, there are bad apples. But in the gun industry — because the nature of the business — those bad apples are able to do tremendous damage. Manufacturers know all this, but they deliberately choose to sell their guns through the worst-of-the-worst gun dealers because they want to profit off that criminal market.
How does this relate to Mexico specifically?
When it comes to Mexico, it’s even more stark. The entire Mexican market is basically illegal for the U.S. civilian gun industry. The only way for them to legally get guns into Mexico would be to export to the one gun store, with very few sales, or to the military or police. So this is all deliberate.
The industry has even taken on law enforcement [to defend this trade]. Under federal law, if there’s a “multiple sale” of handguns, that sale has to be reported to ATF. But if there’s a “multiple sale” of long guns — rifles or shotguns — it does not have to be reported. The Obama administration issued an emergency rule saying, we’ve got this big problem of gun traffickers working for the cartels going to the border states and buying multiple assault rifles — AR-15s, AK-47s — and ATF needs to know about that so they can look into whether those are traffickers.
It’s a pretty modest requirement. It would not stop any of these sales. ATF didn’t have the authority to stop the sales. The only point was ATF could investigate. Well, the National Shooting Sports Foundation — the trade association that the manufacturers all belong to — brought a lawsuit to try to get that rule struck down.
They lost the lawsuit. But it’s quite extraordinary that an industry is told by federal law enforcement, “You’re supplying drug cartels through these multiple sales,” and for the industry to say, “We want to keep this a secret. We don’t want law enforcement to know when these multiple sales happen.”
Can you speak a little bit to why ATF enforcement efforts are so rare?
ATF is extremely under-resourced. It’s rare that they actually revoke a license of a dealer. I’ve litigated cases against gun dealers where there was a paper trail with ATF of 20 years of violating the law, and yet they didn’t get their license revoked — either at all, or only after we brought suit and it became an embarrassment.
There’s more police in New York City than there are ATF agents in the whole country, and that results in the fact that ATF has the capacity to inspect very few dealers. And the manufacturers know this. Their policy is to sell to dealers even if they’ve been indicted. So long as they still have a license, the manufacturers’ view is: God bless America. You’re presumed innocent until you’ve been convicted. So if all we’re dealing with is maybe a video tape or a wiretap which catches a dealer conspiring with a trafficker, that’s not good enough until a jury and a judge convicts them.
What does the gun distribution chain that enables the flood of guns to Mexico look like? Does the industry wash its hands using middlemen?
In most cases, the manufacturer sells through a distributor, who then sells to the dealer. However, there are manufacturers that sell directly to dealers. And there have been manufacturers who have sold at retail — Smith & Wesson and Beretta used to have some shops.
But even the ones that have a three-tier system have the ability to either cut off supplies to dealers, or to only supply to dealers that meet certain standards. They’ve done that over the years, when it has served their bottom line.
So they’ve cut out bad apples before?
Smith & Wesson agreed to all this. We had a settlement in 2000 with the U.S. government and a number of cities where they agreed, “We’re not going to supply high crime dealers. We’re going to require all of our dealers to meet certain standards.” They recognize they could do this. Then they walked away from it — and got away with that. But they recognized that it was doable.
What kind of volume of guns is reaching Mexico?
The numbers are several hundred thousand up to a half-a-million guns or more every year. There is a great report called The Way of The Gun that has numbers about the financial aspect of the illegal trade. [Editor’s note: The report estimates up to 3.7 percent of U.S. gun sales are attributable to trafficking to Mexico.]
So cartels are sending up agents who recruit Americans who get guns?
It’s Americans who are going into the gun stores, and they’re being sent by people working with the cartels. In our complaint, we go into examples of how this works. Often you’ll have people go into a store and they’ll buy a few AR-15s. Maybe they’ll buy a .50 caliber Barrett sniper rifle — these extraordinary weapons that can shoot down a helicopter, and have a mile range, and can shoot through the fuselage of an airplane. They may buy a few thousand rounds of ammunition and a whole bunch of high-capacity, 30-round magazines. Maybe they’ll buy them in cash. And then they’ll come back a few weeks later, maybe the next month, and they’ll buy another whole bunch.
Anyone in their right mind knows from the first sale that that this person is clearly a gun trafficker. They’re not buying all this for their own use. The second time, it becomes undeniable. The third time it’s beyond that.
I don’t know if I’m getting too cinematic here, but the guns are then trafficked south of the border in the trunk of a car?
There’s been reporting about the guns going through in cars — some of them broken down into parts and hidden within cars. Some of it may be in cargo — mixed in with legitimate goods, that sort of thing.
And as you see it, the flow of guns south is sort of the reciprocal trade of drugs that come north?
We, the U.S., supply the guns, and we also supply the customers to buy the drugs. It’s a cycle that depends on the guns. You would not have these powerful criminal organizations if they didn’t have firepower. That is their life’s blood. And they get 70 to 90 percent of it from us.
Before we jump into the claims in the case, can you quickly talk about PLCAA — where that came from, and how it’s been used as a get-out-of-lawsuits-free card.
PLCAA is the Protection of Lawful Commerce in Arms Act, which was enacted in 2005. It was pushed by the gun lobby to give the gun industry special protection from civil liability that no other industry in the United States has. Whether you’re a doctor or you’re selling tuna for sandwiches, you do not have a special law that makes it more difficult for you to be held liable.
Initially, some courts took a very broad view of PLCAA. Then over time, a lot of appellate courts took a closer look at what the text of PLCCA actually says — and they recognized that there are exceptions In PLCAA which allow for liability. It’s still more restrictive than other industries, but there have been dozens of cases since 2005 where the courts have recognized they are not barred by PLCAA [from allowing cases to go to trial].
One of the more notable exceptions — which is the one that’s at issue in Mexico’s case — essentially says that the Protection of Lawful Commerce and Arms Act does not protect unlawful commerce in arms. It says that if the gun company violates a law applicable to the sales and marketing of firearms, and that causes harm, then that company is not protected by PLCAA, and they’re treated like every other industry.
That’s what Mexico alleges, and what the First Circuit Court of Appeals agreed: that Mexico had adequately alleged that the manufacturers violate federal gun laws by aiding and abetting illegal sales, and that those violations cause harm to Mexico, and therefore PLCAA does not shield them from liability.
To be clear, the appeals court didn’t issue a judgment. But rather said this case can go forward based on the theory presented by Mexico?
Exactly. This is just the motion-to-dismiss stage, where the court is supposed to assume that the facts alleged are true. Mexico will have to prove that in court. And that’s the critical point. Mexico’s view is that manufacturers have every right to defend themselves, to try to prove that these allegations are false and that they’re doing the right thing. Have at it. We welcome that. The only issue really is whether Mexico will have an opportunity to prove its allegations in court.
What is the relief Mexico is seeking?
It’s both damages and injunctive relief. You don’t specify it at this stage. But damages that Mexico has suffered in property damage, helicopters shot out of the sky — all of the financial damage. They’re also seeking injunctive relief, which would be a court order aimed at stopping the iron pipeline of guns. The gist of it would be requiring defendants to stop aiding and abetting illegal gun sales.
Walk me through a little bit what happened at the Supreme Court.
I’m counsel on the case. So I’m going to be a bit bland in what I say. The court was engaged and asked tough questions of both sides. When manufacturers were up, Chief Justice Roberts was basically saying, at some point, your clients would be the cause of this harm. Like, you can draw the line where you want, but if, say, 70 percent of the gun dealer sales were going to Mexico, wouldn’t you recognize that then the manufacturer was a cause? So that seemed to suggest he recognized that there could be liability in a case like this. It just depends where you draw the line.
To what extent did the Second Amendment come up? We covered when Ted Cruz wrote an amicus brief in this case, effectively arguing that a profitable gun industry is necessary to safeguard the Second Amendment — so you can’t go after gun industry profits because, by golly, that would eviscerate access to arms.
My view is the cartels do not have Second Amendment rights. There is no Second Amendment right to sell guns to the cartels, even through intermediaries. There’s no Second Amendment right to illegally sell guns. Ninety percent or more of gun dealers obey the law and act in a responsible way. The problem is that the gun industry is using the worst-of-the-worst gun dealers.
This case is about the Mexican criminal market. The gun industry can survive without the illegal Mexican cartel market for firearms. Maybe their revenues would go down a little bit. But they’re not placed in jeopardy. That’s sort of an absurd argument.
What was the thrust of the industry’s case at the Supreme Court?
If you look at the gun industry briefs, the manufacturers are arguing, “Heads, I win, tails, you lose.” Whatever happens, we will always evade accountability.
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