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.

Comments

[Brett Bellmore]

From the 'questions presented':

"The district court dismissed the case under the Protection of Lawful Commerce in Arms Act (PLCAA), which generally bars suits against firearms companies based on criminals misusing their products. But the First Circuit reversed. It held that PLCAA does not bar this suit because Mexico stated a claim that defendants' business practices have aided and abetted firearms trafficking to the cartels, proximately harming the Mexican government."

Sounds like the district court properly upheld the Lawful Commerce act, because Mexico's claim is squarely within what it prohibits. Then the 1st circuit decided to just ignore that act and allow the lawsuit anyway.

[Bob from Ohio]

"harming the Mexican government."

A scandal we even entertain Mexico, a hostile foreign country, bringing this suit. It better be 6-3 reversing. The Dems are hopeless, gun grabbing is their second religion after abortion.

[Brett Bellmore]

I agree.

[Michael Ejercito]

Did the 1st Circuit explain which statute that Mexico alleges that the gun manufacturers violated?

[Satchmo_Lives]

Bob, your statement is truly depressing. Unfortunately it is sad because it is true. There is a real possibility that three members of SCOTUS believe American businesses can be sued by a foreign government for perfectly legal operations because the foreign government deemed their actions illegal in their country.

Just imagine if Russia sued the NYT for publishing negative stories about Putin. Would the First Circuit allow this lawsuit to go forward?

As said over and over ad nauseum, the left simply view the 2nd amendment as a second class right. If they can back-door restrictions on gun rights--by bankrupting manufacturers--they are more than willing to do so. See 1st Circuit.

[tylertusta]

Just imagine if Russia sued the NYT for publishing negative stories about Putin. Would the First Circuit allow this lawsuit to go forward?

Rhetorical, but I'll answer:

No, they wouldn't allow that lawsuit to go forward. After all, guns are special and specially disfavored.

[Grifhunter]

And yucky. Don't forget yucky.

[A Woman of No Importance]

I'm not sure the statute is that sweeping, though I do think it's a close case and neither result from the Supreme Court would surprise me.

The statute says you can't sue gun manufacturers because of what criminals do. This lawsuit is about what *gun manufacturers* do. There is a difference. The argument is that their business plan is to make lots of profits on the bodies of dead Mexicans; not that they are innocent bystanders as criminals misuse their products. Even under the statute, that is not a frivolous argument.

Suppose in discovery an internal memorandum were to surface that said exactly that -- this year we expect to make millions of dollars in profits over the deaths of hundreds of Mexicans. Would you guys allow the suit to go forward then, or would even that not be enough?

On the birthright citizenship thread, one commenter asked if society really has no ability to protect itself from people who break our laws. That's the real issue here. Does Mexico really have no means to protect itself from the carnage from American guns? It candidly admits to being outgunned by the cartels. Maybe putting at least some responsibility on the manufacturers isn't such a bad thing. But the real issue, of course, is that the NRA folk don't want the manufacturers to have any responsibility. Even though if this were any other product we wouldn't even be having this conversation.

[Harvey Mosley]

Bullshit.

Do we allow lawsuits against Ford and GM because drunk drivers kill people? Do we allow lawsuits Home Depot because people make pipe bombs?

Your post is just another hoplophobic rant.

[A Woman of No Importance]

If Ford and GM had business plans that called for them to make millions of dollars off the bodies of the victims of drunk drivers, we absolutely would.

[Harvey Mosley]

US firearms manufacturers don't have business plans that call for them to make millions off the bodies of the victims of murderous thugs, either.

[Bob from Ohio]

"carnage from American guns"

There is no carnage from American guns, the cartels get their automatic weapons from the Mexican Army and police.

[A Woman of No Importance]

If true, all that means is that there's a middleman. It doesn't affect the basic theory of the case that the manufacturers' business plan calls for them to make a lot of what amounts to blood money, with full knowledge that's the case.

[Brett Bellmore]

And that doesn't change that the basic theory of the case is barred by the law, deliberately, because there's no way to sell guns AT ALL without knowing at least some of them will eventually end up in criminal hands.

Basically any good that has any conceivable illegal use is in the same position: They are not responsible for that illegal use unless they knowingly sell to somebody who will illegally use it. You can sell gasoline without worry that a tiny fraction of the purchasers are arsonists. You can sell rat poison without worry that a tiny fraction of the purchasers will poison somebody.

And you can sell guns despite knowing that the occasional gun you sell will eventually end up in criminal hands.

[Brett Bellmore]

CHAPTER 105—PROTECTION OF LAWFUL COMMERCE IN ARMS

"(5) Qualified civil liability action
(A) In general
The term "qualified civil liability action" means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include—

(i) an action brought against a transferor convicted under section 924(h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated 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, including—

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26."

So, not quite. They're going with negligent entrustment, I gather, but that's only valid under this statute if the seller has particularized knowledge that the purchaser is a criminal, or otherwise fails to comply with the law in selling the firearm.

What's alleged here is that the manufacturers generally know that some fraction of the guns they manufacture will end up the the hands of criminals. This is unambiguously NOT a valid exception to the statute, and when, not if, the lawsuit is quashed, the Supreme court should have some strong words towards the 1st Circuit.

[David Nieporent]

The statute says you can't sue gun manufacturers because of what criminals do. This lawsuit is about what *gun manufacturers* do. There is a difference.

There is not, here. In order for a case to survive you have to show that the gun manufacturer broke the law and that this violation was the proximate cause of the harm suffered by the plaintiffs. This suit is not about gun manufacturers breaking the law; this suit is about criminals using guns to break the law. They dress it up as an "aiding and abetting" argument, but all they actually plead is negligence, which is not aiding and abetting.

The argument is that their business plan is to make lots of profits on the bodies of dead Mexicans; not that they are innocent bystanders as criminals misuse their products. Even under the statute, that is not a frivolous argument.

Yes, it is. It's the exact theory that PLCAA was enacted to shoot down. (No pun intended.)

Suppose in discovery an internal memorandum were to surface that said exactly that -- this year we expect to make millions of dollars in profits over the deaths of hundreds of Mexicans. Would you guys allow the suit to go forward then, or would even that not be enough?

Having unsavory thoughts is not actionable. Nothing in PLCAA creates an exception if the manufacturer foresaw that crimes would predictably result from their manufacture. That's exactly what PLCAA was intended to forestall.

[A Woman of No Importance]

You think it's frivolous because your own position is that society can do nothing to protect itself from gun violence, and piles of dead Mexicans are just the price we pay. Disgusting.

[Grifhunter]

It's people who are violent. Inanimate objects do not have mystical powers to animate. A society can protect itself by managing people's conduct through deterrence and confinement punishment. An individual can protect oneself from "gun violence" by using legally sold guns. Legally sold being the operative word.

"Society's" use of courts to bankrupt gun manufacturers though frivolous claims based on imaginary conspiracies to kill Mexicans is proof of a sick society that hates it's own citizens' civil rights.

[Martinned2]

I love the hutzpah of first making it nearly impossible for the ATF to trace guns, and then criticising the statistics they were still able to piece together.

[Michael Ejercito]

How is it impossible for the ATF to trace guns in Mexico?

[Satchmo_Lives]

I don't know. Why don't you tell me how local governments and police forces bought and paid for by cartels don't share their illegal activities with U.S. agencies makes it difficult for U.S. agencies to gain intel on specific guns?

It is such a complex question only Scooby and Shaggy can solve.

[Dr. Ed 2]

I don't see why discovery wouldn't point out the fact that most of the guns (and bullets) aren't being given to the ATF.

But why doesn't contributory negligence apply here? Mexico is negligent in not policing its border and that negligence is greater than the purported negligence of the gun manufacturers.

Conversely, why aren't Mexican companies liable for the invading horde of illegal aliens? How about suing the railroad that brought bunches of them in?

And above all else, how the hell does a civil suit justify restricting the Constitutional rights of Americans?

[Satchmo_Lives]

I don't see why discovery wouldn't point out the fact that most of the guns (and bullets) aren't being given to the ATF.

Sorry Doctor. that presumes the judge(s) care about facts presented in the case or by brief. The current example gives standing to the (failed) state of Mexico because they believe perfectly legal operations of U.S. companies break laws of Mexico. Therefore, U.S. courts should enforce Mexican laws. First Circuit said "cool. We can do that."

I agree with the rest of your comment whole-heartedly. However, just pointing out all the shit Mexico does doesn't address the absurd actions of the First Circuit.

[Dr. Ed 2]

First Circus.

Every one of those schmucks ought to be impeached.

[Martinned2]

Because the ATF is forbidden by a small library of statutes from maintaining proper (electronic) records of all the guns that are out there in America.

[Brett Bellmore]

OK, first of all, the BATF traced a large majority of the guns referred to it by the Mexican government, which by itself is enough to render your "nearly impossible" false.

Secondly, yes, the BATF is restricted from maintaining a centralized database of who owns what guns. For exactly the reason gun controllers want such a database: So they don't know whose doors to break down if they want to confiscate them.

I'm totally unapologetic about that.

[Absaroka]

Despite it being impossible, the ATF routinely traces guns, sometimes within hours for high profile cases.

I don't know if that is because they walk briskly down rows of filing cabinets or maintain verboten electronic records, but they get the traces done.

[Swede425]

And thank God for that.

[Satchmo_Lives]

I get the Mexican government may want to subvert facts not helpful to their cause in Mexican courts. But why the eff are US courts allowing it????

[Brett Bellmore]

In fact, they were able to trace most of the guns Mexico asked them to trace. Mexico just didn't bother asking them to trace most of the guns, because they either didn't come from the US, or did so by way of Mexican Army armories.

[Carl_N_Brown]

In the original Fast and Furious ATF traces, Mexican crime guns were submitted to ATF for tracing only if they appeared to have US manufacturers or US importers markings required by US law. Those were actually a subset of the total of seized Mexican crime guns, most of which had other than US makings. What is surprising (or not) is that not all Mexican crime guns with US markings were made in or imported through the US (most of the Mexican crime guns with "North Korean" markings were made in China with counterfeit North Korean markings).

[Frank Drackman]

What really makes it impossible to trace guns are the huge number of private sales. I haven’t purchased any non-NFA(if you have to ask, let it go, you’re too old, no one listens to techno) guns where a 4473(see previous parenthetical) was filled out since the 80’s

[Satchmo_Lives]

How does a foreign government sue U.S. businesses in the U.S. for unlawful activity in their country?

I simply can't get my head around it. I understand part of my problem is I haven't taken 70hrs of law courses (not sarcasm). It seems far beyond Illinois suing Wisconsin because Wisconsin has relatively lax gun control laws that allow Illinois citizens to obtain Wisconsin guns. If Illinois can't sue Wisconsin, how can Mexico even have standing in U.S. courts?

I am sure there are many legal errors in my statement. I am open to the criticism. Just try to keep it in the ballpark of the issue of Mexico suing perfectly legal actions of U.S. businesses operating in the U.S.

[Michael Ejercito]

Illinois.

Was that not where police tried to do warrantless sweeps in public housing projects around 1993-1994?

[Brett Bellmore]

"How does a foreign government sue U.S. businesses in the U.S. for unlawful activity in their country?"

Contrary to an exactly on point US law, yet!

They do it by finding US judges willing to be complicit because they hate the industry being sued.

[Dr. Ed 2]

QED, we need to impeach 300 Federal judges....

[rloquitur]

This case is ridiculous. What is scary is that the First Circuit allowed it.

[Satchmo_Lives]

What gets me is the left, in general, thinking that firing a high ranking executive branch employee is a threat to democracy as the executive acts like an authoritarian, but allowing a foreign country to sue U.S. companies for legal operations is perfectly fine because it may violate a foreign country's laws.

It truly boggles the mind

[Dr. Ed 2]

First Circus.

When Susan Collins is the most conservative Senator in the circuit, it kinda tells you the type of judges you'll get...

[thesafesurfer]

Include evidence of bribery and government corruption as amplifying factors in the increased rates of violence because criminals do not fear prosecution.