First Circuit Allows Some of Mexico’s Claims Against Gun Manufacturers to Move Forward
January 24, 2024
Mexico has strict gun laws. There is one gun store in the country, and Mexico issues fewer than fifty gun permits a year. Yet Mexico has the third most gun-related deaths in the world because it borders the United States. An estimated half million guns flow from the United States into Mexico each year.
In 2021, Mexico sued seven U.S. gun manufacturers and one U.S. distributor. Mexico alleged that the defendants know that their guns are trafficked to Mexico and act deliberately to serve and grow that illegal market. As previously discussed at TLB, the district court held that Mexico’s claims were barred by the Protection of Lawful Commerce in Arms Act (PLCAA).
On Monday, in Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., the First Circuit partially reversed the district court’s decision. (Disclosure: I wrote an amicus brief on behalf of professors of transnational litigation in support of Mexico at the First Circuit and another amicus brief on behalf of a somewhat different group of professors at the district court.) In a thorough and generally well-reasoned decision, Judge William J. Kayatta, Jr., writing for a unanimous panel, rejected Mexico’s arguments that applying PLCAA in this case would be impermissibly extraterritorial and that PLCAA does not apply to claims by foreign governments for foreign injuries. But the court allowed some of Mexico’s claims to move forward under PLCAA’s “predicate” exception for actions in which a manufacturer or seller knowingly violated a state or federal statute.
Congress enacted PLCAA in 2005 to protect gun manufacturers and sellers from certain lawsuits. PLCAA prohibits plaintiffs from bringing a “qualified civil liability action” in any federal or state court. Congress defined “qualified civil liability action” to mean a civil action against a gun manufacturer or seller for damages or other relief “resulting from the criminal or unlawful misuse of a qualified product by the person [bringing the action] or a third party.”
But Congress carved out certain exceptions to this definition. Most relevant here is the so-called “predicate” exception, which permits “an action in which a manufacturer or seller of a qualified product 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.”
Mexico argued that applying PLCAA to bar claims for injuries in Mexico from gun misuse in Mexico would be impermissibly extraterritorial, but the First Circuit disagreed.
As regular TLB readers know, the Supreme Court applies a presumption against extraterritoriality to determine the geographic scope of federal statutes. The current version of the presumption has two steps. At step one, a court looks for a clear indication of extraterritoriality and, if it finds one, applies the statute has Congress has indicated. If there is no clear indication at step one, then at step two a court must determine whether applying a provision would be domestic (and permissible) or extraterritorial (and impermissible). A court begins by identifying the “focus” of the statute and then asks whether conduct relevant to the focus occurred in the United States.
The district court found no clear indication of extraterritoriality at step one, and the defendants did not challenge that holding on appeal. The district court further held that PLCAA’s focus was the civil actions it sought to regulate and the commercial activity and constitutional rights that it sought to protect. The First Circuit agreed. Mexico had argued, based on PLCAA’s definition of “qualified civil liability action” as an action for harm resulting from “criminal or unlawful misuse” of a gun, that PLCAA’s focus was gun misuse and the resulting injury. But the court of appeals reasoned that this element of the definition did not alter PLCAA’s fundamental focus. “Both the conduct that the statute seeks to regulate—the filing and adjudication of lawsuits—as well as the conduct that it seeks to protect—defendants’ manufacturing, marketing, and selling of guns—take place entirely within the United States,” the court noted. Thus, applying PLCAA in this case was domestic and permissible.
Mexico also argued that PLCCA does not apply to claims under foreign law and claims by foreign governments. But the First Circuit disagreed. The court noted that the Supreme Court in Türkiye Halk Bankasi, A.S. v. United States (2023) recently rejected an argument that Congress’s grant of federal subject matter jurisdiction over “all offenses against the laws of the United States” did not include suits against foreign governments. The court also relied on the Supreme Court’s decision in Pfizer, Inc. v. Government of India (1978), holding that the Clayton Act’s reference to “any person” allowed foreign governments to bring claims under U.S. antitrust law. And the court distinguished Small v. United States (2005), which held that the federal statute criminalizing possession of a firearm by persons convicted of a felony in “any court” did not apply to convictions in foreign courts, because in Small there was no evidence in that Congress intended to reach such convictions.
In this case, the First Circuit reasoned that PLCAA’s purposes called for a broad interpretation of the statute’s scope. “Congress quite clearly enacted the PLCAA to insulate the U.S. gun industry from certain lawsuits,” the court noted. “Limiting that protection to lawsuits brought for harm occurring in the United States, thereby exposing the U.S. gun industry to identical lawsuits for harm suffered abroad, would run directly contrary to that purpose.”
Here, I’m afraid, the opinion makes a misstep. (Repeated disclosure: this is the issue on which I wrote the amicus brief for the First Circuit mentioned above.) Yes, Congress intended to insulate the gun industry from “certain lawsuits.” But this begs the question of which lawsuits. PLCAA’s findings answer that question:
The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law.
It was suits by U.S. government entities and interest groups based on U.S. common law that PLCAA targeted. There is no mention here (or anywhere else in PLCAA) of suits by foreign governments or suits under foreign law.
What distinguishes this case from Halkbank and Pfizer (and makes this case even stronger than Small) is that the statutes in those cases were written broadly with no indication that Congress had specific parties or claims in mind. PLCAA is different. It is full of exceptions (of which more below), two of which specifically mention federal and state law with no reference to foreign law. It aims to protect the Second Amendment “right of the people to keep and bear arms,” as its first finding states, not the ability of Mexican drug cartels to arm themselves. PLCAA has “United States” written all over it.
It may well be that Congress would have wanted PLCAA to reach claims by foreign governments under foreign law if it had considered the question. But the Supreme Court has repeatedly criticized such “judicial-speculation-made-law—divining what Congress would have wanted if it had thought of the situation before the court.” “The question,” the Court emphasized in another decision, “is not what Congress ‘would have wanted’ but what Congress enacted.”
The First Circuit also rejected Mexico’s international comity argument. As I have discussed at length elsewhere, international comity is a principle reflected in many different doctrines of American law. Among these are the rules that U.S. courts are generally open to claims by foreign governments and to claims under foreign law. If claims that Mexico ordinarily would be able to bring in U.S. courts were to be extinguished, Mexico argued, Congress should make that decision rather than the courts.
The court of appeals, however, declined to apply a clear-statement rule to PLCAA. “As should be abundantly clear by now,” the court wrote, “the PLCAA’s focus is on protecting U.S. firearm companies from certain costly lawsuits.” This response suffers from the same question-begging and speculation-made-law as the court’s analysis of PLCAA’s scope.
Here, the court also plays the parity card, noting that PLCAA’s “prohibition applies to lawsuits filed by domestic entities and individuals on an equal basis.” But this is not quite true. PLCAA creates exceptions for claims under certain federal and state laws—including the predicate exception discussed below—but none for claims under Mexican law. Put another way, the court reads PLCAA to extinguish all Mexican law claims, while preserving some claims under U.S. law.
The Predicate Exception
One of the claims that PLCAA preserves under U.S. law is for actions “in which a manufacturer or seller of a qualified product [firearm] 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.” This is commonly known as the “predicate” exception because violation of a state or federal statute is a predicate to liability. The district court held that this exception did not apply to Mexico’s common law claims, but the First Circuit reversed.
All the other courts to have addressed the question have held that common law claims may proceed under PLCAA’s predicate exception (see cases cited in footnote 4). The First Circuit agreed. “The text of the PLCAA compels this conclusion,” the court explained. “While other PLCAA exceptions exempt suits ‘for’ specific causes of action, the predicate exception more broadly exempts actions ‘in which’ the manufacturer or seller violated a statute” (citations omitted). “If Congress had wanted to limit the predicate exception to claims for violating a predicate statute,” the court continued, “it could have simply phrased this exception the same as the others.”
Mexico alleged that, by aiding and abetting illegal downstream sales, the defendants violated various federal statutes that prohibit selling guns without a license, exporting guns without a license, and selling to straw purchasers. The defendant did not contest that aiding and abetting such activity falls within the predicate exception, only that the complaint did not plausibly allege that the defendants had done so. But the court disagreed. Fairly read, the court explained, the complaint alleges that the defendants know about the demand for their guns from Mexican drug cartels and which dealers make illegal sales to the cartels. Yet, the complaint alleges, the defendants continue to supply these dealers, design and market “military-style weapons” that are more attractive to cartels, and place serial numbers on them in a way that makes them easy to remove.
The court distinguished this case from the Supreme Court’s recent decision in Twitter, Inc. v. Taamneh (2023), which held that social media companies were not liable for aiding and abetting terrorists who used their platforms. “The defendants in Twitter had no meaningful stake in ISIS’s use of their platforms and had an undisputed lack of intent to support ISIS,” the First Circuit explained. “The only affirmative conduct that the defendants engaged in was creating their platforms and making them available to the public.” The defendants in this case, by contrast, were alleged to “engage in conduct—design decisions, marketing tactics, and repeated supplying of dealers known to sell guns that cross the border—with the intent of growing and maintaining an illegal market in Mexico from which they receive substantial revenues.”
Mexico also alleged that the defendants had violated federal law by selling “machineguns,” specifically, semiautomatic weapons that can be easily modified to fire automatically. However, the First Circuit found that this interpretation of “machinegun” was foreclosed by the Supreme Court’s decision in Staples v. United States (1994).
The predicate exception’s final requirement is that the violation of the federal or state statute “was a proximate cause of the harm for which relief is sought.” As the court of appeals described, “Mexico’s claim of proximate cause is straightforward: defendants aid and abet the trafficking of guns to the Mexican drug cartels, and this trafficking has foreseeably required the Mexican government to incur significant costs in response to the increased threats and violence accompanying drug cartels armed with an arsenal of military-grade weapons.” The defendants argued that Mexico’s harms were derivative of injuries suffered by the victims of cartel violence. But the court reasoned that at least some of the harms to Mexico were the direct result of the defendants’ alleged conduct. “One obvious example,” the court explained, “is the cost of increased law enforcement personnel and training to mitigate the flow of illegal weapons and to combat drug cartels that—armed with defendants’ weapons—are essentially hostile military operations.”
The First Circuit’s decision has already attracted much media attention. The New York Times calls it “one of the most significant setbacks for gunmakers” in the last twenty years. The defendants will likely seek Supreme Court review but, given the lack of a circuit split on PLCAA’s predicate exception, it is difficult to see how the case is cert-worthy. Mexico’s case still has a long way to go. But Judge Kayatta’s thorough and, in my view, (mostly) correct decision is an important step forward.