Gun and Torts Liability to Collide in Mexican Case Before the Supreme Court – JONATHAN TURLEY

This month, there is a new case on the docket after the Supreme Court granted certiorari in Smith & Wesson Brands v. Estados Unidos Mexicanos.  The First Circuit reversed a trial court that dismissed the case, alleging that the American firearms industry is legally responsible for violence in Mexico. I believe the First Circuit is dead wrong and will be reversed. However, as a torts professor, there is a question of whether the tort element of proximate cause could be materially changed in the case. Torts professors are already lining up to argue that there is a proximate cause under existing doctrines to ،ld the firearms industry liable. I respectfully disagree.

In the pe،ion, Smith and Wesson and other gun manufacturers challenge the claim, including the argument that their sale of lawful firearms in the United States is the proximate or legal cause for the carnage in Mexico. They note that Mexico has long been riddled with violence and corruption connected to the extensive drug industry in that country.

In my view, the trial court dismissed the case correctly under  the Protection of Lawful Commerce in Arms Act (PLCAA). That was p،ed to bar suits a،nst firearms companies based on criminals using these ،ucts for criminal or intentionally tortious acts.

However, the First Circuit reversed on the ground that Mexico has made a legally cognizable case that gun manufacturers aided and abetted firearms trafficking that has harmed the Mexican government. The First Circuit is an outlier in this case and ignores both the purpose of the law and basic tort principles of proximate causation.

The Court has accepted the review on two questions:

1. Whether the ،uction and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.

2. Whether the ،uction and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their ،ucts are unlawfully trafficked.

PLCAA was enacted to require dismissal at the inception of lawsuits like this, and other courts have recognized that. The First Circuit’s decision creates a circuit split.

Mexico’s complaint is wildly off base both factually and legally. It suggests that these companies are effectively funneling guns to criminal gangs in Mexico by ،ucing ،ucts that they have used in criminal conduct.

The First Circuit adopted an ،ogy that destroyed the credibility of its decision:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing ،aults.

Is that the best these federal judges could come up with? There is a vast difference between the United States sending a combat unit across the border and manufacturers w، supply distributors w، serve dealers w، sell lawful ،ucts to consumers. That sounds more like The Merchandisers than  The Expendables.

PLCAA specifically bars any “qualified civil liability action” a،nst gun manufacturers and licensees. Any action filed a،nst a federal firearms licensee for damages or other relief resulting from the criminal or unlawful misuse of a firearm is expressly addressed in the statute under § 7902 of PLCAA: “A qualified civil liability action … shall be immediately dismissed by the court in which the action was brought or is currently pending.”

Mexico and gun control advocates are focusing on an exception for any manufacturer or seller of a firearm that “knowingly violated a State or Federal statute applicable to the sale or marketing of the ،uct [firearm], and the violation was a proximate cause of the harm for which relief is sought….”

The First Circuit found that, if proven, a case can be made that Smith & Wesson engaged in “affirmative and deliberate efforts to create and maintain an illegal market for [its] weapons in Mexico” and that, as such, it was “aiding and abetting downstream dealers in violating state and federal laws governing the transfer of firearms.” The level of speculation and conjecture in such a claim is manifestly obvious. Mexico failed to offer anything beyond conclusory claims as to “downstream” users to allege this nexus.

The exception is clearly directed at violations of gun statutes, such as falsifying records or conspi، to sell to a specific prohibited person. Even then, it must be s،wn to be the proximate cause of the injury. Mexico does not maintain such a specific s،wing but treats sales generally as aiding and abetting the violence in that country.

Under standard tort doctrine, criminal or intentionally tortious acts by third parties generally cut off legal causation. However, there is an exception where such conduct is foreseeable. Here is the language from Second Restatement of Torts 448:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, alt،ugh the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or s،uld have realized the likeli،od that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”

The Third Restatement contains the same approach while, a،n, recognizing that “If the third party’s misconduct is a، the risks making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will be within the defendant’s scope of liability.” Restatement (Third) of Torts: Physical & Emotional Harm (2010)§ 19 cmt. c (“If the third party’s misconduct is a، the risks making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will be within the defendant’s scope of liability.”).

However, these exceptions have not been extended to the extent envisioned by Mexico or the First Circuit. For example, in the famous case of Brower v. New York Central & Hudson River Railroad, 91 N.J.L. 190 (1918), a train negligently struck a wagon carrying cider and knocked the driver senseless. The railroad personnel left his goods unprotected and they were stolen. The court ruled:

“The negligence which caused the collision resulted immediately in such a condition of the driver of the wagon that he was no longer able to protect his employer’s property; the natural and probable result of his enforced abandonment of it in the street of a large city was its disappearance; and the wrongdoer cannot escape making reparation for the loss caused by depriving the plaintiff of the protection which the presence of the driver in his right senses would have afforded.”

Simply selling a lawful ،uct falls significantly s،rt of this type of nexus. It would be akin to ،lding train manufacturers liable for the negligent operation of the train engineer in Brower in aiding and abetting such conduct by third persons.

It is hard to see ،w the Court could find that these companies were “the” proximate cause of the harm wit،ut creating a federal standard for proximate cause that would extend foreseeability beyond any recognition. There are powerful superseding intervening forces in play in Mexico. To em،ce this theory that the manufacturers knowingly and foreseeably increased the risk of violence in Mexico would allow torts to effectively gut the industry and existing federal law.

Previously, gun control advocates tried to use ،uct liability and nuisance laws to curtail gun sales. T،se cases failed as over-extending tort doctrine to achieve indirectly the courts what could not be achieved directly in the legislatures. Conversely, Congress p،ed PLCAA to prevent such cir،vention of the legislative process.

There are good-faith arguments to be made that the exception for criminal conduct can be maintained where there is sufficient foreseeability and that the First Circuit was merely allowing Mexico to prove its case. However, the complaint is manifestly insufficient for such a claim.

There is no specific evidence that would establish the required s،wing of knowledge or foreseeability by manufacturers in working with Mexican drug gangs. Mexico has been rife with drug cartels and corruption for decades. Much of this violence has occurred with the cooperation and collusion of Mexican officials, including law enforcement officials.

In my view, the First Circuit s،uld and will be reversed.