First-of-its-Kind Lawsuit Tests Gun Makers’ Foreign Immunity

American gun manufacturers’ immunity from lawsuits by other countries for the criminal misuse of weapons on foreign soil hangs on whether the First Circuit allows a lawsuit brought by Mexico to move forward.

Mexico’s first-of-its-kind challenge against firearm giants—among them Smith & Wesson Brands Inc., Glock Inc., and Beretta USA Corp.—accuses the manufacturers of facilitating gun trafficking across the US border to drug cartels in Mexico.

That type of claim would typically be blocked under the federal Protection of Lawful Commerce in Arms Act, which shields US gun manufacturers from lawsuits over the criminal misuse of their products. No appellate court has decided whether PLCAA covers misuse outside of the US and harm caused abroad.

The US Court of Appeals for the First Circuit will hear oral arguments on Monday. The case has elicited amicus briefs from Latin American and Caribbean nations, members of Congress, and coalitions of states on both sides of the issue.

The US District Court for the District of Massachusetts ruled in favor of the manufacturers in September 2022, finding that the PLCAA barred most of their claims.

If the appeals court is sympathetic to Mexico’s claims, “it will open up potentially enormous liability for the firearms industry,” said Timothy Lytton, a professor at Georgia State University’s Center for Law, Health & Society. “It would allow any foreign entity to bring a lawsuit against the firearms industry based on illegal trafficking of weapons,” which gun manufacturers claim “would destroy the industry,” he said.

But upholding the status quo would allow manufacturers “to continue to ramp up their irresponsible selling and marketing practices” that cause “tremendous harm” both in America and abroad, said Esther Sanchez-Gomez, litigation director for the Giffords Law Center, which advocates for gun safety.

Federal Law’s Reach

Mexico argues that American gun manufactures are partly liable for the country’s 23,000 annual gun deaths. The businesses allegedly sell assault rifles that can be easily converted to fire automatically and market their weapons to cartels, violating both US law and Mexican tort law.

The central question the First Circuit must decide is whether the PLCAA bars foreign governments from suing based on claims rooted in foreign law.

The Mexican government believes that its claims should be allowed because of the “presumption against extraterritoriality"—a principle where courts avoid applying federal statutes abroad. The US Supreme Court has interpreted other federal statutes as applying only to the United States, a group of law professors wrote in a brief backing Mexico.

“Congress is usually thinking about domestic issues, so it legislates with United States people and United States law in mind,” said Kermit Roosevelt III, a professor at University of Pennsylvania’s Carey Law School.

The manufacturers argued in their brief that Congress didn’t intend for the law’s “protection to fall away for alleged violations of foreign laws—laws that lack any domestic legitimacy and, more important, are unburdened by the limits of the Second Amendment.”

Even if the PLCAA applies, Mexico’s claims would be allowed under an exception in the statute for manufacturers that knowingly violate state or federal law, the country claims.

But “the United States firearms industry that operates lawfully, selling a product that is constitutionally protected” to citizens after a criminal background check, “is not responsible for what is occurring in Mexico,” said Lawrence Keane, senior vice president and general counsel of the National Shooting Sports Foundation, a firearm industry trade association.

“This case arises out of a clash of national values,” the manufacturers said in a brief. The proper venue for Mexico’s attempt to reshape US firearms policy “is through the political branches, not the federal courts.”

The case is Estados Unidos Mexicanos v. Smith & Wesson Brands Inc., 1st Cir., No. 22-01823, Oral argument 7/24/23.