On August 4 of last year, the Mexican government filed a lawsuit in US Federal Court against 10 US gun manufacturers, including Glock, Colt, and Smith & Wesson. The suit accuses the gunmakers of knowingly “facilitating the trafficking” of massive quantities of firearms to Mexico’s notoriously violent drug cartels. This is the first time that a foreign government has sued the US gun industry. And though the fate of the suit remains far from clear, it is a striking challenge to the gun industry’s long-standing legal protections.
Mexico itself has strict gun laws, and bans the import of guns without a permit, yet the cartels still manage to obtain a steady flow of US-made firearms. According to the Mexican government’s complaint, 70 to 90 percent of guns recovered at Mexican crime scenes are US-made.
The harm those guns do is well documented. According to the Mexican Foreign Affairs ministry, at least 17,000 homicides in Mexico were linked to trafficked weapons. This violence now extends to nearly every part of Mexico, making streets unsafe and forcing families to live with the deadly reality of violence on a daily basis. The drug cartels are well-known for their deadly skirmishes with one another, which also regularly kill large numbers of innocent bystanders. In March 2017, Mexican authorities discovered a mass grave outside of the port city of Veracruz containing 250 bodies, which they concluded were most likely the victims of cartels.
Operation Fast and Furious
Mexico goes to great lengths to keep the violence in check. In addition to its strict gun laws, which the suit says make it “virtually impossible for criminals to lawfully obtain guns,” there is only one gun shop in the entire country, which is operated by the military and is located on a military base. Just to enter the facility requires months of background checks, and the highest caliber firearm that can be purchased there is a .38 pistol. Mexico alleges that US gun makers undermine these strict measures by using “reckless and corrupt gun dealers and dangerous and illegal sales practices that the cartels rely on to get their guns.”
The guns, of course, must first be smuggled from the United States into Mexico. Mexican Defense Secretary Luis Cresencio said in a December 2019 press conference that US-made guns are smuggled into Mexico in washing machines, gas tanks, spare tires, televisions, in hidden compartments of vehicles, toys, and even boxes of chocolate. Cresencio cited one incident in which the government seized a load that included 55,000 cartridges, 19 guns, and 12 grenade launchers.
Efforts to control the flow of guns into Mexico have often fizzled—or, in some cases, backfired. Gun violence in Mexico ramped up in the mid-2000s following the expiration in 2004 of the US’s ban on assault weapons. The resurgence of these powerful, military-style weapons coincided with the growing power of Mexico’s drug cartels. When the Mexican government initiated a campaign against the cartels around the same time, they responded by rapidly arming themselves—both to fend off the government and to wage their own battles for control of the narcotics trade. Year-by-year, the violence and death toll spiraled out of control, fueled by weaponry imported from the United States.
The Mexican federal government has often been stymied in its efforts to stop the flow of guns over the border by a lack of cooperation from local governments that have been infiltrated by cartel members. But another significant difficulty has been the United States’ reluctance to help. The Obama administration offered some assistance, including supplying Mexican authorities with policing equipment, and made several high-profile arrests. But their efforts were limited and ultimately ended in scandal.
Between 2009 and 2011, a division of the US Department of Alcohol, Tobacco, Firearms and Explosives (ATF) adopted a policy of allowing illegal gun sales in order to track the smugglers and purchasers as the guns were trafficked to Mexico. The ostensible goal of the endeavor, which became known as Operation Fast and Furious, was to catch the cartel big shots. But the operation ended in embarrassment and disaster when the ATF lost track of more than 1,600 of the illegally-sold guns, and failed to arrest a single cartel member.
Breaking Through the Immunity Shield
The biggest obstacle standing in the way of the Mexican government’s suit is a 2005 US law, the Protection of Lawful Commerce in Arms Act (PLCAA), which shields gun manufacturers and dealers from any civil action “resulting from the criminal or unlawful misuse of a qualified product.”
The Mexican government was encouraged by the lawsuit that families of the victims of the 2012 Sandy Hook elementary school shooting brought against Remington, the maker of one of the rifles used in that massacre. The Sandy Hook families’ suit sought to circumvent PLCAA’s protections by arguing not that Remington’s products were unlawfully misused—but rather that Remington improperly marketed the XM15-E2S, a military weapon, to civilians. After the suit spent seven years winding its way through state and federal courts, this February the families finally reached a $73 million settlement with Remington (which is now bankrupt) and its insurers. By breaking through PLCAA’s immunity shield for the first time, the Sandy Hook suit has potentially major implications for future liability suits against US gun corporations.
Mexico closely followed the Sandy Hook case, and took its success as an optimistic sign that they, too, might be able to find a way around PLCAA’s protections. (Mexico filed its suit just days after Remington offered a $33 million settlement to the Sandy Hook families.) The Mexican government is similarly arguing that US gunmakers should be held liable for reasons other than that their products were unlawfully misused. The complaint argues, for example, that the US gunmakers engaged in negligent practices, including their failure to “exercise reasonable care” to ensure that their products are not trafficked to cartels. According to the suit, the US gunmakers will sell to anyone with a license despite “blazing red flags that those distributors are ultimately conspiring with straw purchasers.”
The Mexican government also argues that the US gunmakers are actually marketing their weapons to the cartels. Its complaint cites the example of a pistol used by cartel members in 2017 to murder Miroslava Breach Velducea, a journalist who exposed the corrupt ties between the cartels and government officials. The pistol was a Colt special-edition .38 that had an engraving of Mexican revolutionary Emiliano Zaptata on one side of its grip, and on the other side his iconic phrase, “It is better to die standing than to live on your knees.” The Mexican government is arguing that such marketing is aimed directly at the drug operations.
Finally, Mexico is also arguing that PLCAA does not apply in this instance because the law prohibits claims against gun manufacturers “only when the injury occurred in the U.S.”
A Long Shot Worth Taking
How much is the Mexican government seeking in compensation? Alejandro Celorio, a spokesman for Mexico’s Foreign Ministry, indicated that the damage caused by the trafficked guns comes to as much as 2 percent of Mexico’s gross domestic product—and that it will seek at least $10 billion in compensation.
Despite the encouraging outcome of the Sandy Hook suit, the fate of Mexico’s suit remains uncertain. In November of last year, the US gunmakers moved to dismiss the complaint, citing PLCAA—and the court has not yet issued a ruling on the motion. Legal scholars remain skeptical. Adam Winkler, a law professor at UCLA and a gun policy expert, characterized the Mexican complaint as a “long shot” but also called it “a bold and innovative lawsuit,” adding, “We’ve never seen anything like this before.”
The Mexican government’s effort should strike a deep and sympathetic chord with Black and Latino communities in the United States. Those communities have for many years suffered disproportionately from gun violence—even as the US gun manufacturers have made record profits and avoided all responsibility for the harm caused by their weapons.
However unlikely it may be, a victory for Mexico could inspire other Latin American governments to take up similar suits, and would provide a major boost to efforts within the US to finally hold the US gun industry accountable for the incredible suffering it perpetuates in pursuit of profits.