Schwartz: Courts should reject Mexico’s suit vs. U.S. firearm makers

It is often said that some things you have to see to believe. Case in point: the Mexican government has sued U.S. firearm manufacturers for untold billions of dollars over shooting injuries and deaths perpetrated by Mexican drug cartels. Mexico claims that a handful of U.S. firearm makers are really to blame for the country’s systemic violence because they facilitated a flow of firearms into the hands of criminals who misused the products to wreak havoc on the entire country.

This overreaching lawsuit amounts to a plea that any foreign country unhappy with America’s gun laws should be allowed to haul U.S. companies into federal court and impose massive liability for any firearm-related violence occurring in that country. For example, there would not appear to be a difference between the Mexican government’s action and a lawsuit by the Taliban government on behalf of members of the Taliban who were shot and killed by U.S.-made firearms that flowed into the country during the 20-year Afghanistan war.

Mexico’s lawsuit may be unique in terms of sheer audacity, but it is hardly the first lawsuit seeking to impose liability against firearm industry members for harms caused by criminals who misuse a firearm to kill or injure others. Such lawsuits have been tried and rejected for decades. Courts have recognized these lawsuits fly in the face of a bedrock principle of liability law, namely that the person who intentionally misuses a firearm (or any product) to injure someone –– not the product’s manufacturer –– is responsible for that injury.

In fact, many of the U.S.-made firearms misused by the cartels were stolen from the Mexican government by the over 150,000 soldiers who defected to the cartels. Other firearms misused by the cartels were illegally smuggled into Mexico from other countries in violation of Mexican law.

An initial wave of lawsuits in the late 1990s and early 2000s seeking to undo the application of basic liability law –– solely in the context of firearms –– prompted a strong bipartisan vote by Congress to adopt the Protection of Lawful Commerce in Arms Act of 2005. Although the PLCAA has often been mischaracterized as granting “total immunity” to the firearms industry, the reality is that the law stands for the unremarkable proposition that a manufacturer or seller is not subject to liability for another’s criminal misuse of a lawfully sold product. The same common-sense legal rule is why the manufacturer of a sharp knife is not liable where a stabbing occurs, or why a carmaker is not responsible where a driver purposefully runs over someone.

Mexico’s lawsuit proposes to circumvent the application of the PLCAA by arguing this law does not apply because the shooting crimes committed by members of Mexican drug cartels took place in Mexico. This argument, however, conflicts with Congress’s express objective in the PLCAA to preclude liability against U.S. firearm companies for others’ criminal or unlawful misuse of firearms “shipped or transported in interstate or foreign commerce.” As Congress appreciated, massive liability exposure could halt the lawful sale of firearms and enable backdoor industry “regulation through litigation.”

Allowing foreign countries such as Mexico to override the will of Congress and target the U.S. firearms industry would also create a host of new, troubling precedents. It would mean anyone who is shot by a U.S.-made firearm anywhere in the world (except the U.S.) could potentially sue the firearm’s manufacturer, even where the shooting was committed by a foreign criminal in a foreign country. If U.S. courts determined the PLCAA does not bar such actions, foreign countries would also be emboldened to apply their own notions of liability law in a case. That means traditional defenses to liability could go out the window and allow claims based on crimes committed with firearms that changed hands many times over the span of years or even decades. As a result, virtually limitless liability could be imposed against U.S. companies in a fundamentally unjust and arbitrary manner.

Mexico should not be allowed to pass the buck onto U.S. firearm companies for Mexican drug cartel mayhem or use its lawsuit as a means to regulate an already heavily regulated, lawful industry whose products enjoy protection under the Second Amendment. U.S. courts should reject this lawsuit and any other unsound attempts by foreign countries to circumvent the PLCAA and liability law fundamentals.

Victor Schwartz is a former law professor and law school dean, and current co-chair of the Public Policy Group of the law firm Shook, Hardy & Bacon LLP.