Attorneys representing more than a half-dozen U.S. gunmakers and a firearms distributor filed another joint motion to dismiss the Mexican government’s claim against the companies for allegedly facilitating the traffic of guns into a country where multiple communities resemble bullet-riddled war zones.
Andrew Lelling, a former U.S. attorney for the District of Massachusetts and recently recruited partner at Jones Day in Boston, signed the certificate of service Monday.
The lawyers for manufacturers Smith & Wesson Brands, Inc., Sturm, Ruger & Company, Inc., Glock Inc., Barrett Firearms Manufacturing Inc., Colt’s Manufacturing Co., Inc., Beretta U.S.A. Corp., Century International Arms and distributor Witmer Public Safety Group Inc. argued once again that Mexico lacks Article III standing to bring the case, meaning that the purported injury is not traceable to the defendants, but rather stems from a third-party not before the court: criminals in Mexico.
“A string of criminal actors arm the cartels in Mexico with Defendants’ lawfully manufactured and lawfully distributed products,” the motion argued.
Furthermore, attorneys for the defendants assert that Massachusetts courts have rejected the traditional lex loci approach deeming that a plaintiff injured in a foreign country can apply foreign law to determine a tortfeasor’s liability.
Mexico highly restricts gun sales. It has a single gun store in the entire nation and issues fewer than 50 gun permits per year. Yet the country is awash in guns, including assault weapons. The Mexican government has found that the vast majority of guns recovered at crime scenes were trafficked into the country from the U.S.
Mexico argues that lax firearms regulations in the U.S. impinge on its right as a sovereign nation to regulate the flow of firearms into the country.
The gunmakers’ lawyers counter: “But nations serve that interest by regulating conduct within their own borders and securing their borders to keep unwanted products out—not by projecting their law outward to regulate how products are made and sold within the territorial jurisdiction of other sovereigns.”
The 40-page motion filed on Monday also argued, again, that the U.S.-based defendants are shielded by the U.S.’ Protection of Lawful Commerce in Arms Act, a federal law that grants broad immunity to licensed firearms manufacturers and sellers against lawsuits claiming harms resulting from the unlawful use of a firearm by a third party.
“[T]his case is about whether U.S. companies can be held liable in a U.S. court for their conduct in the United States,” the motion read. “The clear focus of the PLCAA is on protecting U.S. companies from liability in U.S. courts based on their sales and manufacturing of firearms in the United States.”
The Mexican case centers on the argument that conduct in the U.S. is causing injury in Mexico—homicides in Mexico have skyrocketed since the U.S. ban on assault rifles expired in 2004—and that the immunity afforded to gunmakers via the Protection of Lawful Commerce in Arms Act does not apply to injuries caused abroad.
“Defendants design and manufacture weapons of war, then market and sell them in ways they know routinely arm the drug cartels in Mexico,” Steve Shadowen, an attorney for the government of Mexico, wrote in a January response to the defendants’ first joint motion to dismiss.
“They make and sell .50 caliber sniper rifles that can shoot down helicopters and penetrate lightly armored vehicles and bullet-proof glass. They design semi-automatic rifles to be easily convertible into fully automatic machine guns. They know that their distributors and dealers sell these military weapons in bulk, with no restrictions—clearly intended for traffickers,” added Shadowen.
The U.S. Congress enacted legislation in 2005 that largely shields the gun industry from civil claims for liability in shooting deaths. Yet a string of recent wins in U.S. courts has tested the Protection of Lawful Commerce in Arms Act.
In July, gunmaker Remington offered some of the families whose children were killed in the Newtown, Connecticut, mass school shooting $33 million to settle. Lawyers for the plaintiffs in that case argued that the company’s marketing of rifles as combat weapons violated a Connecticut law against deceptive marketing practices.
More than two dozen district attorneys from across the U.S., as well as two sovereign countries in the Caribbean and 14 U.S. state attorneys, have filed amicus briefs urging the Massachusetts court to allow the Mexican government to proceed in its lawsuit against U.S. gun manufacturers.
Mexico is seeking financial compensation for its losses. One study pegs the government’s cost of trying to prevent escalating gun violence to be more than 1.5% of the country’s $1 billion annual gross domestic product.
Lelling, who oversaw prosecutions in the infamous “Varsity Blues” college admissions scandal before joining Jones Day in 2021, and Jones Day partner Noel Francisco, former solicitor general of the United States during the Trump administration, represent Smith & Wesson Brands in the lawsuit.
Other big-name firms for the defendants include Cozen O’Connor, which represents Beretta USA Corp., and Day Pitney for Sturm, Ruger & Co. Inc.