*Mitchell Fair
Mexico’s strict gun laws make it virtually impossible for criminals to obtain legally sourced firearms within the country.[1] The sole gun store in Mexico, located on a military base in Mexico City, issues fewer than fifty gun permits a year.[2] Despite its strict regulations, Mexico still ranks third for the most gun-related deaths in the world.[3] Nevertheless, the Mexican drug war remains ongoing since 2006, with cartel members still engaging in gunfights with the police.[4]
Mexico’s government believes that seven United States gun manufacturers and one distributor are to blame for the Mexican drug cartel’s military-grade arsenal; therefore, the Mexican government alleges in a new lawsuit that United States gun manufacturers knowingly and deliberately marketed and distributed their guns to Mexican drug cartels for decades to turn a larger profit.[5] Mexico’s complaint requests billions of dollars in damages caused by these gun manufacturers, plus extensive injunctive relief to impose new gun-control measures in the United States.
In September of 2022, Mexico brought an action against United States gun manufacturers and wholesalers, alleging illegal trafficking of guns into Mexico.[6] The complaint named Smith & Wesson Brands, Inc., Barrett Firearms Manufacturing, Inc., Beretta U.S.A. Corp., Century International Arms, Inc., Colt’s Manufacturing Company, LLC, Glock, Inc., and Sturm, Ruger & Co. (collectively, “the Manufacturers”). According to the complaint, the Manufacturers knew of the harmful effects their marketing and trafficking had in Mexico yet allegedly maintained a distribution system to facilitate illegal sales while resisting calls for reform by the U.S. government.[7]
The Manufacturers also supposedly engaged in multiple practices that contradicted their obligations as manufacturers or sellers of dangerous goods.[8] Against the interest of public safety, the Manufacturers allegedly designed guns that were easily modifiable to become fully automatic, marketed the guns as “weapons of war,” and designed the guns with easy-to-remove serial numbers.[9] The Manufacturers routinely marketed their guns with military and law-enforcement images and language,[10] and used explicit military and law enforcement references, as well as references to a weapon’s ability to function in “combat-like scenarios,” that Mexico argues appealed directly to dangerous users or criminals such as cartel members.[11]
The injury to the Mexican government because of the Manufacturers’ alleged conduct is “massive.”[12] Mexico estimates that between 342,000 and 597,000 guns sold by the Manufacturers are smuggled illegally into Mexico from the United States each year by three methods: (1) “straw sales” where purchasers buy on behalf of someone not legally allowed to purchase a firearm, (2) “kitchen-table” dealers who deal in locations that are easy to avoid regulations in, and (3) “lost” firearms that disappear from the Manufacturers’ inventories and frequently reappear in Mexico.[13] Mexico’s complaint also highlighted a correlation between the increase in gun manufacturing in the United States and: (1) the number of illegal guns within Mexico, (2) the Mexican homicide rate, and (3) the increased use of guns for homicide.[14] To counteract the Manufacturers’ alleged conduct, Mexico claims it “has had to spend vast funds on a wide range of services including “substantial and unusual costs for providing . . . extraordinary health care, law enforcement and military services, criminal justice administration, public assistance, and other social services and public programs.”[15]
The Manufacturers collectively moved to dismiss Mexico’s complaint for lack of Article III standing and for failing to state a claim.[16] Of the nine counts, the U.S. District Court of Massachusetts dismissed two for failure to state a claim upon which relief could be granted and barred the other seven under the Protection of Lawful Commerce in Arms Act (PLCAA).[17] Mexico appealed and raised multiple challenges to the district court’s application of the PLCAA, including but not limited to the argument that Mexico’s complaint is statutorily exempt from the PLCAA due to the “predicate exception.”[18]
The PLCAA prohibits causes of action against manufacturers and distributors of firearms for harm caused solely by the criminal or unlawful misuse of firearm products by others when the product functioned as designed and intended.[19] The PLCAA protects United States firearm companies and their interests in manufacturing, marketing, and selling guns to the public, and it also protects United States citizens and their interests in having access to guns.[20]
The PLCAA is designed to protect only “lawful” commerce in arms, as the name suggests.[21] One exception to the PLCAA, known as the predicate exception, exempts “an action in which a manufacturer or seller of a qualified product knowingly violates 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.”[22] Mexico contends its lawsuit meets the predicate exception, and the Court of Appeals for the First Circuit agreed,[23] holding that the district court erred when interpreting the exception to only apply to “statutory claims,” and not “common-law causes of action.”[24] According to the Court of Appeals, the predicate exception encompasses common law claims and statutory claims, as long as there is a predicate statutory violation that proximately causes the harm.[25]
The predicate common-law violation Mexico alleges is the Manufacturers’ aiding and abetting of illegal downstream sales.[26] The Court of Appeals stated “the essence of aiding and abetting” is “participation in another’s wrongdoing that is both significant and culpable enough to justify attributing the principal wrongdoing to the aider and abettor.”[27] Mexico claims that the Manufacturers engage in their alleged conduct in order to maintain the unlawful market in Mexico, and not merely in spite of it.[28]
In Direct Sales Co. v. United States, in 1943, under facts eerily similar to the facts of the current case,[29] a defendant company conducted business from New York to provide mail-order prescription drugs to doctors around the country.[30] The Supreme Court noted evidence that a doctor was ordering a product in large volumes incompatible with lawful use, and that the defendant facilitated the purchases through mass advertising and offering bulk sales at steep discounts despite warnings from the U.S. government that the company was a source of supply for an illegal market.[31] Because the defendant company also made profits from the illegally sold drugs,[32] the Court concluded a jury could have found beyond a reasonable doubt from the evidence that the defendant supplier “not only kn[ew] and acquiesce[d]” in the illegal enterprise, but also “join[ed] both mind and hand . . . to make its accomplishment possible.”[33] The sales methods of the defendant company, which might have been perfectly innocuous for everyday items, were evidence of illicit intent when employed to sell a dangerous item whose legitimate market was highly restricted.[34] “The difference,” the Court said, “is like that between toy pistols or hunting rifles and machine guns.”[35] Relying on Direct Sales, the appellate court concluded that Mexico’s complaint adequately alleged that the Manufacturers aided and abetted the knowingly unlawful downstream trafficking of their guns into Mexico.[36]
Following Estados Unidos Mexicanos, an uncomfortable possibility now looms over United States gun manufacturers. Potential plaintiffs may now realize that the PLCAA predicate exception is a viable approach, opening potential lawsuits ranging in the billions of dollars should any criminals misuse their products in other countries. This is due to the court’s controversial analysis on “aiding and abetting” and connecting the maintenance of an unlawful market with gun violence in Mexico.[37] While it can be argued that the straw sales and kitchen-table dealings are not “lawful” commerce protected by the PLCAA, the court considers these unlawful dealings as the Manufacturers knowingly and purposefully arming cartel members to combat the police.[38] The court’s connection is too weak and is precisely the kind of connection that the PLCAA was designed to protect against. The predicate exception is applied too generously here and sets a faulty precedent for future litigation. The merits of the intermediate decision are still pending, as the Supreme Court of the United States granted certiorari and heard arguments for this case on March 4, 2025.[39]
*Mitch Fair is a second-year student at the University of Baltimore School of Law where he is a Staff Editor for the University of Baltimore Law Review, its incoming Diversity & Inclusion Editor, and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. Last summer, Mitch interned at Blattner Family Law Group. In May 2025, Mitch hopes to continue his commitment to litigation in the Washington D.C.-Baltimore area.
[1] Kate Linthicum, There is Only One Gun Store in All of Mexico. So Why is Gun Violence Soaring?, L.A. Times (May 24, 2018, 3:00 AM), https://www.latimes.com/world/la-fg-mexico-guns-20180524-story.html.
[2] Id.
[3] Gun Deaths by Country 2024, World Population Rev., https://worldpopulationreview.com/country-rankings/gun-deaths-by-country (last visited Oct. 19, 2024).
[4] 16 gunmen killed in Mexico clashes, 3 police officers wounded by car bomb amid escalating cartel violence, CBS News (Oct. 25, 2024, 7:53 AM), https://www.cbsnews.com/news/mexico-car-bomb-clashes-deaths-cartel-violence/; 3 police officers, 4 cartel suspects killed in shootouts in Mexico across the border from Texas, CBS News (Nov. 20, 2024, 2:11 PM), https://www.cbsnews.com/news/police-officers-cartel-suspects-killed-shootouts-mexico-us-border/; see Mexico’s Long War: Drugs, Crime, and the Cartels, CFR (Feb. 21, 2025, 3:30 PM), https://www.cfr.org/backgrounder/mexicos-long-war-drugs-crime-and-cartels.
[5] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 633 F. Supp. 3d 425 (D. Mass. 2022), rev’d and remanded, 91 F.4th 511 (1st Cir. 2024).
[6] Id. at 432.
[7] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511 (1st Cir. 2024).
[8] Estados Unidos Mexicanos, 633 F. Supp. 3d at 433.
[9] Id.
[10] Id. at 435–36. Barrett’s firearms catalogue predominantly show users of their firearms in full military gear while highlighting the “military-tested” nature of the weapon. See Model 82A1, Barrett, https://barrett.net/products/firearms/model-82a1/ (last accessed April 6, 2025).
[11] Id.
[12] Id. at 436.
[13] Id.
[14] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 633 F. Supp. 3d 425, 436 (D. Mass. 2022), rev’d and remanded, 91 F.4th 511 (1st Cir. 2024).
[15] Id.
[16] Id. at 437.
[17] Id.
[18] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511 (1st Cir. 2024).
[19] Id. at 522.
[20] Id.
[21] Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. § 7901.
[22] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 525 (1st Cir. 2024).
[23] Id. at 534.
[24] Id. at 535.
[25] Id.
[26] Id. at 432.
[27] Twitter, Inc. v. Taamneh, 598 U.S. 471, 504 (2023).
[28] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511 (1st Cir. 2024).
[29] Direct Sales Co. v. United States, 319 U.S. 703 (1943).
[30] Id.
[31] Id. at 706–07.
[32] Id. at 712–13.
[33] Id. at 713 (the defendant company was convicted of conspiring to violate the Harrison Narcotic Act).
[34] Id. at 711.
[35] Direct Sales Co., 319 U.S. at 711.
[36] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 91 F.4th 511, 532 (1st Cir. 2024). To determine the foreseeability of the harm caused, the court introduced the following hypothetical: Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. An attack like that would directly cause Mexico itself the expense of paying soldiers to defend the city, making proximate cause quite clear. In the instant case, the Manufacturers are alleged to have armed the attackers for their continuing assaults, so proximate cause is established. For these reasons, the district court’s decision was reversed and remanded back to the district court. See id. at 536–37.
[37] Id.
[38] Id. at 525.
[39] See Petition for Writ of Certiorari, Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 91 F.4th 511 (1st Cir. 2024), cert. granted, 93 U.S.L.W. 3070 (U.S. Oct. 4, 2024) (No. 23-1141); Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, Oyez, https://www.oyez.org/cases/2024/23-1141 (last visited Apr. 8, 2025) (noting an argument date of March 4, 2025).
University of Baltimore Law Review 