From Texas Public Radio:
In August 2021, the Mexican government filed a $10 billion lawsuit against eleven American gun manufacturers, including Smith & Wesson, Colt and Beretta, accusing them of marketing and selling weapons favored by organized crime and contributing to bloodshed in Mexico. Within the claims were allegations of negligence on the part of these corporations.
After more than a year of waiting for a ruling, the decision finally came back last Friday, Sept. 7, in a 44-page document in which Massachusetts federal Judge F. Dennis Saylor stated that the Mexican government’s claims were “either barred by federal law or fail for other reasons.”
The ruling came after weeks marked by violence from armed groups in several Mexican states. Last week alone, there were several reported instances of violence throughout Mexico.
Criminal groups broke into a mall in Jalisco in western Mexico, and a shooting between gunmen and soldiers followed. Three days later in San Miguel Totolapan, in the state of Guerrero, gunmen opened fire in a municipal hall and a house, killing 20 people, including the mayor.
Mexico wants to hold U.S. gun manufacturers responsible for the violence committed with their weapons. But, so far, proving culpability in court has been a challenge.
Mexico’s lead attorney, Alejandro Celorio, explained the judge’s ruling to TPR. “The main argument is that the defendants, the companies that the government, Mexico, is suing for their negligence that actively facilitate the illicit trafficking of their firearms to Mexico, enjoy the immunities awarded by the Protection of Lawful Commerce in Arms Act,” Celorio said.
The Protection of Lawful Commerce in Arms Act, or PLCAA, was passed in 2005 to protect firearms manufacturers and dealers from being held liable for crimes committed with their weapons. The law states that they may also be held liable for negligent entrustment when they have reason to believe that a gun is being purchased to commit a crime.
PLCAA has caused controversy since its inception. Lawmakers pushing for gun control in Washington have been outspoken against it. Connecticut Sen. Richard Blumenthal has been an active supporter of the right of the families of gun violence victims to be able to sue the companies who manufacture these weapons. “They face a defense that says, we are different, the law doesn’t apply to us. The laws of negligence, of liability for defective products, those laws, we’re above them. Why is this industry given this exemption?”
The gun manufacturers declined TPR’s requests for comment on the lawsuit.
Celorio believed that PLCAA does not have grounds to protect manufacturers against this lawsuit because these crimes were committed in Mexican territory. “This immunities statute, we argue, does not have an extraterritorial application. Also, we raise the fact that under choice of law analysis, the law that should apply, the tort law that should apply, is the law of the place of harm,” he continued. “That is the Mexican law, in this case, a substantive law.”
Celorio explained that the Mexican government is already working on the appeal for this case and will also present a new lawsuit soon, which will focus on the gun dealers.
“We are looking into the distributors now in Arizona, and we will be able to prove that the distributors are knowingly selling to straw purchasers in a systematic and routine way,” he said. “And by proving that, we’re going to reinforce our argument that the gun industry, the big manufacturers that we’re suing, are on notice and are aware that their products are sold to cartels, to criminals, and they have done nothing to change this.”
As confirmed by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the lawsuit claimed that 70% to 90% of guns recovered at crime scenes in Mexico were trafficked from the U.S.
Timothy Sloan, the former U.S. ATF attaché in Mexico, said he believes one of the reasons for the claim is the ease with which guns flow into Mexico.
“Well, it’s so easy because the gun laws in the United States make it easy to obtain weapons from Americans for Americans or dual nationals and then come in south,” he explained.” There really are no controls to come south. So, to believe that the firearms come to Mexico any other way other than the U.S. and Mexican border is a false belief. It’s wrong. They just drive south in vehicles and there’s no inspection on the Mexican side.”
Guns make their way into Mexico from every state in the U.S., not just states that share a border with Mexico. “In 2021, statistically, through our tracing program in Mexico, as the agency head,” Sloan explained. “I can tell you we had firearms in Mexico from all 50 states, including Hawaii and Alaska. So, it’s not just Arizona, and it’s not just Texas.”
Celorio added that, aside from going after criminal organizations, this was the first time corporate responsibility was considered in efforts to contain the issue of arms trafficking. “The governments have been doing their job,” he said. “But what about the corporations?”
In an effort to stop this flow of weapons at the border, Mexico has traced around 16,000 weapons back to the U.S. this year. But it isn’t the large numbers of weapons that worry authorities, it’s the kind of armory that is a concern, Celorio explained. “We’re seeing more and more assault weapons, rifles, military style weapons. And this is of great concern because let’s remember that, in Mexico, we have civilians committing crimes with military style weapons. Weapons that shouldn’t be in the hands of civilians in Mexico.”
As criminal organizations increase their power, so does the military, resulting in endless confrontations with civilian casualties. Back in July 2020, the Jalisco New Generation Cartel released a video showing cartel members armed with military-grade weapons, including .50 caliber sniper rifles, alongside a convoy of armored vehicles. They are known for their social media presence.
The video shows several dozen uniformed men shouting they are the “people of Mr. Mencho,” the nickname used for Nemesio Oseguera, leader of the cartel. This display sparked fear and concern that the cartel was now armed with more destructive weapons.
But the origin and livelihood of illicit gun trafficking has proven to be much more complex. A group of hackers under the name “Guacamaya” leaked more than four million alleged military documents last week and have put Mexican President Andres Manuel Lopez Obrador’s militarization plans under scrutiny and pressure.
Revelations of the leaks have included the links between governors and criminal groups and the corruption among customs agents in Baja California. Mexicanos Contra La Corrupción, a Mexican think tank, reported that one of these documents proved that the Mexican Secretariat of National Defense, or SEDENA, had knowledge of a military officer offering to sell weapons and tactical gear to armed groups. The criminal cell based out of the state of Mexico confirmed the purchase of grenades.
While the Mexican government will need to answer to its own complicity, all 32 attorneys general in Mexico have expressed support for the lawsuit against U.S. gun manufacturers, as well as the attorneys general of 13 U.S. states and Washington, DC.
Secretary of Foreign Affairs Marcelo Ebrard has spoken in front of the Senate claiming, “they don’t have immunity, not in Mexico, or anywhere else in the world,” and offering unwavering commitment moving forward to growing this litigation.
The Mexican government expressed hope that this lawsuit would raise awareness that companies need to be held accountable for the harm caused by their products. Celorio said to have changes in the way they trade their product, they needed to be sued.
“If it wasn’t for that illicit traffic, those weapons that we see in the hands of criminals wouldn’t exist.”
This reporting was done in collaboration with the Pulitzer Center.