Supreme Court amicus briefs on gun crime in Mexico

Mexico's amici take shots at our brief in Smith and Wesson v. Mexico

In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, the Mexican government is suing several of the most popular American firearm manufacturers in an attempt to hold them liable for violence committed by Mexican drug cartels in Mexico. The Mexican government seeks billions of dollars in damages and the imposition of extensive gun controls in America.

This post is coauthored with Joseph Greenlee, who is a research associate at the Independence Institute (where I work) and Director of the Office of Litigation Counsel for the National Rifle Association's Institute for Legislative Action.

We filed an amicus brief on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute in support of the American manufacturers. The State of Montana, joined by 25 more states, filed a brief as well. In response to these two briefs, a group of social science, medical, and legal scholars supporting the Mexican government joined a brief filed by Crowell & Moring aimed at refuting our claims. This post addresses their arguments.

Homicides in Mexico after the 2004 repeal of the American "assault weapon" ban

Mexico's amici accuse us of denying "there has been a significant increase in gun violence in Mexico since the expiration of the U.S. assault weapons ban in 2004." They fault us for "conflat[ing] the Mexican homicide rate . . . with the overall rate of national gun violence." Actually, it was the Mexican government that argued "homicides in Mexico . . . increased dramatically beginning in 2004." Mexico Complaint at ¶ 13 (emphasis added). And the Mexican government has focused its statistical case on the number of homicides and the homicide rate. E.g., Complaint at ¶¶ 14, 279, 440, 441, 442, 444, 450, 471, 472.

Our brief provided statistics—which the amici did not dispute—that "Mexico's homicide rate was lower during each of the first three years after the ban's expiration (2005–2007) than during any year in which the ban was in effect (1995–2003)." The plaintiff, the  Mexican executive branch, incorrectly told courts that Mexican homicides "increased dramatically beginning in 2004."

In later years, Mexican homicides have increases. We argued that the increases were caused by the Mexican government's military offensive against its own citizens, the militarization of public security forces, government corruption, the government's failure to punish criminal conduct, and the Mexican government's human rights violations—including unlawful killings by police and military, forced disappearance by government agents, torture committed by security forces, and violence against journalists. In other words, the homicide increase is the result of the Mexican government's own misdeeds and failures, not the American manufacturers' lawful activity.

ATF Traces of Firearms Seized in Mexico

Our statement in the amicus brief that "few Mexican crime guns are determined to have come from America" is factual. The Mexican government claimed that "Almost all guns recovered at crime scenes in Mexico—70% to 90% of them—were trafficked from the U.S." But this percentage is based on the number of firearms that are submitted to the U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) for tracing. And relatively few guns used in Mexican crimes are submitted. Moreover, ATF's report on Mexican traces includes the same "ATF Firearms Trace Data Disclaimer" ATF puts on every trace report, as required by federal law:

Firearm traces are designed to assist law enforcement authorities in conducting investigations by tracking the sale and possession of specific firearms. Law enforcement agencies may request firearms traces for any investigative reason, and those reasons are not necessarily reported to the federal government. Not all firearms used in crime are traced and not all firearms traced are used in crime.

Firearms selected for tracing are not chosen for purposes of determining which types, makes or models of firearms are used for illicit purposes. The firearms selected do not constitute a random sample and should not be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe. Firearms are normally traced to the first retail seller, and sources reported for firearms traced do not necessarily represent the sources or methods by which firearms in general are acquired for use in crime.

We provided the example of 2008, in which 30,000 guns were seized by Mexican officials, but only 4,000 were successfully traced. While 3,480 of the 4,000 were traced to America, these 3,480 represent less than 12 percent of the total arms seized in Mexico. Thus, over 88 percent could not successfully be traced back to the U.S.

Mexico's amici suggest that these numbers are skewed because "the 2008 data . . . were gathered before the eTrace system was functioning in Spanish in Mexico." But the amici do not provide an example after the system started functioning in Spanish that produced a different result. Instead, the amici cite a recent ATF report they claim shows that "the number of crime guns that could be traced to the U.S. between 2018 and 2023 hovered around 70%." Again, this report also included only firearms submitted for tracing, and the amici did not provide the total number of crime guns recovered in Mexico during those years. Thus, although the amici claim that we "misrepresent[ed] the data" and relied on a "misleading and acrobatic statistical analysis," they failed to identify a single falsehood or provide a contrary example.

Time to Crime

We emphasized in our brief the significance of "time-to-crime" for firearms that originate in America and are recovered in Mexico. The "time-to-crime" is the amount of time between the first retail sale of the firearm and its use in a crime. According to this theory, the shorter the "time-to-crime," the greater the possibility that the gun was originally sold to someone acting on behalf of a criminal. The longer the "time-to crime," the greater the probability that the gun was acquired through the nonretail market, such as being stolen and then resold among criminals. Thus, a long "time-to-crime" supports the absence of connection between the conduct of American manufacturers or dealers and Mexican crime.

Mexico's amici asserted that we argued, "without any citation, that the average age of crime guns seized in Mexico is 15 years." To the contrary, we provided a citation along with a description explaining that we were citing an "ATF report identifying average time-to-crime rate for U.S.-sourced firearms recovered and traced in Mexico between December 1, 2006, and August 31, 2010."

After calling our "assertion regarding the average age of guns used in Mexican crimes baseless and incorrect," Mexico's amici cited a newer ATF report "indicat[ing] that from 2022-2023 the average time to crime (TTC) for guns recovered in Mexico is 5.6 years." While the amici indeed identified a period with a shorter time-to-crime rate, the amici did not mention that the same report showed that the time-to-crime rate was "14.8 years in 2017."

The Mexico amici's 5.6-year-statistic from 2022–23 proves our point as well. The ATF has written that only a time-to-crime "of less than three years" is "an indicator of illegal firearm trafficking." Because guns with TTC of under one or three years are overrepresented in crime guns, ATF concludes: "These patterns suggest that
diversion of non-stolen firearms remains a prominent source of crime guns." In other words, many of the guns with short TTC were obtained by fraudulent retail transactions, whereas guns with longer TTC are more likely to have entered the black market via theft.

In a recent analysis of firearms recovered in Mexico from 2014 to 2018,  ATF considered firearms with a "'time to crime' of more than 1 year" to be "purchased primarily through the secondary market," rather than from retailers, according to the U.S. Government Accountability Office.

Mexico's amici asserted that "There are no data or analysis suggesting that a longer [time-to-crime] signals that guns were stolen . . . as opposed to trafficked unlawfully." This is true in a technical sense, since ATF traces do not include details about whether a firearm was stolen or a how a firearm moved around in the black market.

In ATF's Mexican trace report, ATF states: "ATF investigative experience indicates
TTC of less than three years can be an indicator of illegal firearm trafficking." The support for this statement is in endnote 9:

Pierce, Glenn L., Anthony A. Braga, Raymond R. Hyatt, and Christopher S. Koper. 2004. "The Characteristics and Dynamics of Illegal Firearms Markets: Implications for a Supply-Side Enforcement Strategy." Justice Quarterly, 21 (2): 391 – 422; Kennedy, David M., Anne M. Piehl, and Anthony A. Braga. 1996. "Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy." Law and Contemporary Problems, 59 (1): 147-196; Bureau of Alcohol, Tobacco and Firearms. 2002. Crime Gun Trace Analysis (2000): National Report. Washington, DC: Bureau of Alcohol, Tobacco and Firearms.

These are the "data or analysis" that ATF cites in support of its understanding that longer time-to-crime is less likely to be a result of malfeasance by a retailer, as opposed to theft.

Sources

Lastly, Mexico's amici write that we "primarily rely on a single 2013 article authored by David Kopel." (Mexico's Gun Control Laws: A Model for the United States? 18 Texas Review of Law & Politics 27 (2013)). In fact, we cited that article only once in the section that the amici responded to, and in only one footnote elsewhere in the brief. By contrast, we cited multiple times the United Nations' Office on Drugs and Crime's Global Study on Homicide; the U.S. Congressional Research Service; the U.S. Bureau of Democracy, Human Rights, and Labor; the FBI's Uniform Crime Reports; an International Studies professor; a professor at the National Autonomous University of Mexico; the Executive Director of the Institute for Security and Democracy; and news articles. While the amici disparage Kopel's 2013 article as "old" and "outdated," the Mexican government's complaint focused largely on data from the 1990s and 2000s, which the Kopel article addressed.