A lawsuit in Massachusetts brought by the government of Mexico seeks to blame American firearms manufacturers for violence south of the border, raising questions about the industry’s immunity to lawsuits under federal law.

The lawsuit, Estados Unidos Mexicanos v. Smith and Wesson, was dismissed in September by the federal district court in Massachusetts. The government of Mexico then filed an appeal in the First Circuit, an appeal which now has the support of 16 states and the District of Columbia. The lawsuit also names famous  firearms brands such as Beretta, Colt, Glock, and Ruger as defendants. 

The Mexican government’s lawyers claim that the business practices of these companies resulted in the “killing and maiming of children, judges, journalists, police, and ordinary citizens throughout Mexico.” Gun manufacturers adopted a “head-in-the-sand” approach to firearms sales and are “knowingly profiting” off of civilian deaths, they claim. 

The most important question in this case is whether or not federal law prohibits such lawsuits against gun manufacturers. The Protection of Lawful Commerce in Arms Act passed with bipartisan support in 2005 and created stringent civil liability protections for the gun industry. 

The executive director of the Duke University Center for Firearms Law, Andrew Willinger, told the Sun that Mexico will likely have to rely on an argument that the trafficking of weapons from the United States falls under an exemption in the liability law that allows civil lawsuits to be filed. 

“If they are” relying on that argument, “then they fall within the predicate exception and are not barred” by the federal liability law. “If not,” then the law “likely precludes these claims,” he said. 

But Mr. Willinger added that new state laws related to firearm manufacturer liability could complicate the case. In May 2022, a district judge in New York allowed claims brought under a new state law “establishing liability for improper sale or marketing of firearms” to proceed; a New Jersey judge reached the opposite conclusion in January, holding that allowing claims under such a statute would read the predicate exception too broadly and conflict with the federal liability law’s purpose.

In its legal brief, the Mexican government argues that the gun manufacturers could be sued in an American court by applying Mexican law because the “injury” occurred in Mexico, and therefore the federal gunmaker liability law does not apply. 

The director of the Firearms Research Center at the University of Wyoming, George Mocsary, told the Sun that Mexico is grasping at straws. “It’s a frivolous lawsuit brought in cooperation with the U.S. gun control lobby that aims to use Mexico’s inability or refusal to keep its house in order as an excuse for financially harming the legal U.S. firearms industry,” Mr. Mocsary said. 

“The argument that Mexico can sue because the harm occurred in Mexico — in particular — is facially frivolous because the Protection of Lawful Commerce in Arms Act bars lawsuits based on their being ‘brought in any Federal or State court,’” he added. 

The chief judge of the Massachusetts district court, Dennis Saylor, did not buy Mexico’s argument last year. In his opinion, he wrote that American law explicitly protected manufacturers whose products happened to be used improperly by criminals. 

In an amicus brief filed in the First Circuit Court of Appeals, 16 states and the District of Columbia argue that the Mexican government has the right under the liability law to seek damages for gun manufacturers’ business practices. 

Nothing in the federal gunmaker liability law “expresses in unmistakably clear language an intent to erect broad immunity for gun manufacturers and sellers,” the states wrote. “Rather, the statute authorizes actions, like the one brought by Mexico here, alleging that gun manufacturers have knowingly violated state and federal statutes.”

“While the court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law,” Chief Judge Saylor wrote in the opinion.  

Mexico famously puts strict limits on the number of legal weapons in the country. Across the entire nation, there is only one registered gun store and the government issues fewer than 50 permits every year. 

The Mexican government argues that American firearms manufacturing tracks directly with the precipitous increase in homicides in Mexico. In 2004, the year the federal assault weapons ban expired, there were a little less than 10,000 homicides nationwide in Mexico. U.S. By 2012, homicides climbed to more than 25,000 as the number of American firearms in production increased to nearly nine million from only three million eight years earlier. 

Mr. Willinger said this case could set a precedent. “Some quick searching suggests that this lawsuit is the first time a foreign government has sued American gun manufacturers for harm inflicted with their products,” he wrote. “I believe there are instances of American cities and municipalities suing foreign gun manufacturers for events within the U.S., although I’m not sure whether those suits named the foreign parent corporation or only an American subsidiary.”

Seeking damages from the firearms industry is a new front in the fight for gun control. In recent years, blue states have begun enacting laws that would allow greater access to courtrooms for those who want to sue gun manufacturers. 

New York was the first state to adopt a measure that affords residents greater leeway in these lawsuits in 2021. Delaware, New Jersey, and California quickly followed suit, and Washington is currently considering its own law.