The Volokh Conspiracy
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Second Amendment Roundup: Supreme Court Should Resolve Proximate Cause in S&W v. Mexico
Illinois court shows need to lay the issue to rest.
As I posted here, the March 4 oral argument in Smith & Wesson Brands v. Estados Unidos Mexicanos appeared to go well for S&W and not well for Mexico. Mexico's lawsuit seeks to hold America's federally-licensed firearm industry responsible for the cartel violence that plagues Mexico. The Protection of Lawful Commerce in Arms Act (PLCAA) prohibits lawsuits against the gun industry for crimes committed by third parties.
PLCAA does allow an action in which [1] a manufacturer or seller "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and [2] the violation was a proximate cause of the harm for which relief is sought." It was suggested in oral argument that Mexico's aiding and abetting theory did not meet element [1], rendering it unnecessary to resolve [2]. Yet leaving the latter, the proximate-cause issue, in limbo will result in continuing legal uncertainty and ongoing attacks on the industry facilitated by courts that are allowing the most extreme theories of proximate cause in which remoteness is disregarded.
The latest example is the denial by Judge Jorge L. Ortiz of the motion to dismiss in Kelly Roberts v. Smith and Wesson Brands, Circuit Court 19th Judicial District, Lake County, Ill. (April 1, 2025). In 2022, Robert Crimo III murdered seven people and injured dozens more with an S&W rifle in Highland Park, Illinois. He has pleaded guilty and faces life in prison. His father pleaded guilty to reckless conduct for helping his son obtain the rifle while knowing of his mental health issues.
The lawsuit against manufacturer S&W, the distributor, and the retailer that sold the rifle is exactly the kind of case PLCAA was enacted to prevent. The Roberts plaintiffs alleged that S&W advertisements intentionally promote militaristic misuse of firearms, especially among young people. (Of course they don't.) S&W responded that "the claimed harm is the aggregate result of numerous intervening (including criminal) acts by third parties not under Smith & Wesson's control," and that "Plaintiffs fail to allege, as they must, that they even saw the Smith & Wesson advertisements they complain of, let alone that they were deceived by them."
The plaintiffs responded that inferences could be made that Crimo saw and was influenced by the ads because he played shooter video games and S&W ads somehow mimic such games. Judge Ortiz agreed that the inferences sufficed to show knowing violation of an Illinois law against engaging in deceptive and unfair practices, specifically by "promot[ing] a firearm-related product that encourages unlawful paramilitary activity." He held that "Plaintiffs have alleged sufficient facts to conclude that Smith and Wesson's marketing strategies of targeting younger demographics and promoting unlawful military type assaults created a foreseeable risk of injury to Plaintiffs."
"Factual causation," the court ruled, was established by "numerous allegations of unlawful marketing techniques and statutory authority that Smith and Wesson marketing and advertisements violated." "Legal cause" sufficed that "Smith and Wesson's unlawful conduct created a condition that foreseeably led to the shooter's criminal act." With conclusions like that, the proximate-cause requirement may as well be erased from PLCAA.
It goes without saying that it is sheer lunacy to claim that S&W ads encourage "unlawful paramilitary activity" and promote "military type assaults." But the purpose of such lawsuits, orchestrated by Everytown for Gun Safety, is to destroy America's lawful firearm industry. Making a mockery of PLCAA, not to mention the Second Amendment, is the game that's being played.
That's all the more reason for the Supreme Court definitively to resolve the proximate-cause issue in Smith & Wesson Brands v. Estados Unidos Mexicanos.
