The government of Mexico recently sued U.S. firearms manufacturers in federal district court in Massachusetts. The 135-page complaint alleges that the defendants bear substantial legal responsibility for a surge in gun deaths in Mexico because U.S.-made weapons account for between 70 and 90 percent of guns recovered at crime scenes in Mexico, whose own laws and practices make it very difficult to obtain firearms. According to the lawsuit, the U.S. companies have failed to take reasonable steps to prevent their weapons from ending up in Mexico, profit from the trafficking of U.S.-made guns to Mexico, and in some respects deliberately target the illegal Mexican market.
The lawsuit presents strong moral and policy grounds for relief. But is it legally sound? The answer is not entirely clear.
The case raises several important issues about the territorial reach of domestic law. After providing some more context, in this column, I shall focus on a 2005 federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), which shields U.S. firearms manufacturers from most lawsuits claiming that they are responsible for harms caused by criminals using their weapons.
The Lawsuit
Mexico’s complaint raises common-law and statutory claims under the laws of Connecticut and Massachusetts, with subject matter jurisdiction based on a federal statute authorizing adjudication of cases between “a foreign state . . . as plaintiff and citizens of a State or of different States,” including corporations headquartered in such U.S. states. Readers unfamiliar with federal court practice might find it odd that foreign sovereigns can sue U.S. parties in our courts, but the practice is plainly contemplated by the Constitution’s Article III. Indeed, federal courts have even entertained lawsuits by unfriendly foreign sovereigns, as in a 1964 Supreme Court case allowing a suit by the communist government of Cuba against a receiver of assets for U.S. parties to sugar contracts there. Although Congress subsequently cut back on the substantive holding in that case, it never withdrew the jurisdictional allowance.
And for good reason. Foreign sovereigns benefit from the ability to sue in U.S. courts because U.S. defendants and their assets may be beyond the reach of their own courts. Less obviously, the U.S. benefits because American individuals and firms sued in our courts receive the substantial procedural protections and generally even-handed justice they provide. The possibility of resolving these disputes through the ordinary judicial process may also reduce the likelihood of international diplomatic friction.
The difficulty for Mexico is thus not any lack of jurisdiction. Moreover, the substantive laws of Connecticut and Massachusetts—applicable because the defendants are headquartered and/or sell their weapons through dealers located there—appear to provide plausible grounds for relief. However, the defendants will invoke PCLAA to argue that it pre-empts, that is, supersedes, state tort law. Does it?
PLCAA’s Exceptions
Despite its overall prolixity, Mexico’s brief is terse with respect to PLCAA. That is not a legal deficiency. The defendants will raise PLCAA as a defense, and a plaintiff has no obligation to anticipate and respond to defenses in its complaint. Nonetheless, Mexico’s lawyers might have done more with the PLCAA issues if only to make their case initially in the court of public opinion. In any event, it is relatively straightforward to discern Mexico’s core argument from what the brief does include.
Mexico makes two main contentions. First, it contends that even if PLCAA applies to harms committed outside the United States, the defendants’ actions place them outside of its protections under express statutory exceptions. Second, Mexico asserts that PLCAA “bars certain claims against gun manufacturers and distributors only when the injury occurred in the U.S.” Let us examine these contentions in turn.
PLCAA does not completely immunize U.S. gun manufacturers and sellers against civil liability for bad acts by third parties. For example, it allows lawsuits to proceed against a “manufacturer or seller” of firearms that “knowingly violated a State or Federal statute applicable to the sale or marketing of the product [if] the violation was a proximate cause of the harm for which relief is sought.” The complaint provides numerous examples of guns manufactured for initial sale in the U.S. in the apparent hope that so-called straw purchasers would divert them to Mexico.
For instance, Paragraph 216 alleges that “Colt’s special edition .38 Super pistol is engraved with an image of the Mexican revolutionary Emiliano Zapata on one side of the barrel and a phrase attributed to him on the other.” It goes on to state that one such 38 special “was used in 2017 to assassinate [a] journalist . . . who made it her life’s work to uncover corruption, drug trafficking rings, and human rights violations.”
Still, whether Mexico will succeed in its argument that the defendants’ conduct falls within an exception to PLCAA’s shield remains to be seen. In the fairly small number of reported cases, courts have generally construed the exception narrowly.
Extraterritoriality
That leaves Mexico’s claim that PLCAA simply does not apply to wrongs occurring outside the United States. Because Mexico’s complaint does not spell this claim out in any detail, it is difficult to evaluate, but it will face an uphill climb.
The statutory language poses an immediate problem for Mexico. It bars suits “brought by any person” and defines “person” to include “any governmental entity.” On the face of the matter, that includes the government of Mexico, as nothing in the statute says that it protects against suits by domestic but not foreign government entities. So it looks like PLCAA does apply to Mexico’s case.
Mexico hints that it intends to rely on PLCAA’s “Findings” and “purposes” provision for a contrary conclusion. That provision twice refers to lawsuits “by the Federal Government, States, municipalities, private interest groups and others.” Mexico may argue that by choosing only domestic actors in its specific enumeration of potential plaintiffs, Congress did not intend to reach foreign sovereign plaintiffs. Yet “others” could include foreign sovereigns, just as the term “any governmental entity” in the operative statutory provision could.
Alternatively, Mexico might rely on the fact that the Findings-and-purposes provision focuses on the protection of Second Amendment rights. Because Mexican nationals in Mexico have no Second Amendment rights, it is fair to argue that PLCAA targets only the U.S. market.
Yet that response may be too hasty. Criminals in the United States may also have their ability to possess firearms curtailed consistent with the Second Amendment. The theory of PLCAA’s substantive provisions appears to be that imposing liability on firearms manufacturers for the downstream illegal use of their weapons will raise the cost and thus the price of those weapons, thereby making it more expensive for law-abiding Americans to obtain the firearms to which the Second Amendment entitles them. Lawsuits by Mexico no less than by New Mexico, New York City, or individual victims of crimes committed in the U.S. could have the same effect of raising the price of firearms for law-abiding citizens in the U.S. Thus, it is not entirely clear that shielding U.S. firearms manufacturers from liability for acts committed in Mexico falls outside the purpose of PLCAA.
Perhaps Mexico can point to evidence in the legislative history of PLCAA indicating that members of Congress were not thinking about—or even specifically disavowed—the application of PLCAA to crimes committed outside the U.S. But even if so, it is difficult to imagine the current federal judiciary finding such evidence sufficient to overcome the seemingly plain text of PLCAA’s reference to “any governmental entity.” At the very least, for the legislative history argument to get off the ground—even for jurists who deem evidence of subjective legislative intent relative to statutory interpretation—Mexico would need to show that the statutory language is somehow ambiguous.
Finally, in the background of the case lurks an issue of territoriality. The Supreme Court has long applied a presumption against extraterritoriality—meaning that where it is unclear whether a statute applies outside the United States, courts resolve the issue by presuming it does not. Here, that might be thought to benefit Mexico: if there is any uncertainty about whether PLCAA applies, presume it does not.
However, applying the presumption against extraterritoriality in that manner seems perverse. The point of the presumption is to avoid extraterritorial regulation. As Justice Ruth Bader Ginsburg wrote for the Supreme Court in a 2007 case, it is a “presumption that United States law governs domestically but does not rule the world.” Application of PLCAA to bar Mexico’s lawsuit would reduce the reach of U.S. law in keeping with the spirit of the presumption, because it would mean that the common law and statutory law of Connecticut and Massachusetts would not apply based on events occurring in Mexico.
Admittedly, Mexico can argue with some force that it seeks the application of Connecticut and Massachusetts law to activities occurring within those states—the production and sale of firearms—that have a harmful impact in Mexico. Yet this argument, if successful, would show only that the case does not implicate the presumption against extraterritoriality one way or the other. It would not lead the courts to construe ambiguity (if any) in PLCAA as rendering the defendants’ statutory shield inapplicable to this lawsuit.
Accordingly, although I have much sympathy for the Mexican government’s position as a matter of policy and considerable disdain for the conduct it alleges the defendant firearms companies have undertaken, I fear that its suit might succumb to PLCAA—which was itself a deplorable gift from Congress to the U.S. firearms industry and gun lobby.
