For nearly two decades, the Protection of Lawful Commerce in Arms Act has been the death knell of nearly every lawsuit filed against the gun industry. The law, passed after a wave of industry lobbying, shields gun manufacturers from being held liable for the harms wrought by their products.
But a new lawsuit brought earlier this month by the Mexican government uses a novel argument to try and sidestep PLCAA altogether.
The lawsuit, filed on August 4 in federal court, alleges that the negligence of a group of major gunmakers and wholesalers — including Smith & Wesson, Glock, and Colt — has fueled cartel violence in Mexico. Specifically, the Mexican government argues that the manufacturers marketed guns in ways that attracted violent criminals, and that they chose not to police their distribution channels despite knowing that many of their weapons were being illegally trafficked over the southern border.
Mexico’s lawyers acknowledge that PLCAA bars claims against gun manufacturers and distributors for gun violence perpetrated by third parties. But they argue that Congress only intended those protections to apply when the violence occurs inside U.S. borders and violates U.S. law. Since Mexico’s suit deals with injuries to Mexican citizens on Mexican soil caused by violations of Mexican law, PLCAA does not apply.
“PLCAA is not going to be an issue for us,” said Steve Shadowen, the lead attorney for the Mexican government. “We had enough confidence in our claims to say we’ll litigate them in [the gun industry’s] home court.”
According to the lawsuit, more than 180,000 people were killed with guns in Mexico between 2007 and 2019. More than 70 percent of all firearms recovered in violent crimes originated in the U.S.
The lawsuit names seven American gunmakers and one distributor as defendants: Smith & Wesson; Beretta; Glock; Colt; Sturm Ruger; Barrett; Century Arms; and Interstate Arms.
Experts have come to different conclusions about the validity of Mexico’s argument. Timothy Lytton, a legal scholar at Georgia State University and editor of the book Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, sees the strategy as an uphill battle. A judge may determine that Congress intended PLCAA to block product liability lawsuits regardless of their origin, as any legal pressure on the gun industry could threaten to reduce the access to guns for U.S. citizens, he said.
“It’s an interesting legal question, but hardly a settled one,” Lytton said. “It will be a significant challenge for the plaintiffs in this case to prove that PLCAA does not apply to their claims.”
William Dodge of the University California, Davis, and Ingrid Wuerth of Vanderbilt Law School, both experts in international law, believe Mexico’s argument has merit. In an article for JustSecurity.org, they argue that all available evidence in the text of PLCAA suggests Congress intended the bill to be domestic in scope — that it was meant to deal with suits brought over violations of U.S. law and only U.S. law.
“Lest there be any doubt about Congress’s purposes,” they write, “PLCAA expressly provides that it is intended “[t]o preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes.” Residents of Mexico have no Second Amendment rights, they argue, and a court cannot fairly assume before trial that imposing regulatory controls to prevent the flow of firearms into Mexico will have any bearing on U.S. citizens’ access to arms.
In a phone interview, Dodge said there was nothing in the text of PLCAA to suggest the law was designed to apply to crimes committed outside of U.S. borders. He said if Congress takes notice of the suit, it could decide to update PLCAA’s text and clarify whether or not immunity extends to cross-border disputes — but courts should not assume one way or another.
Dodge proposed one scenario in which Congress might specify that PLCAA does not apply to foreign suits: Lawmakers may come to the conclusion that legal challenges against gunmakers are a necessary check on cross border trafficking, which by fueling the drug trade may harm U.S. citizens.
“We can’t know exactly what Congress would want to do, which is a very good reason for courts not to freelance and say ‘well, we think what Congress would have wanted is X,'” he said.
The companies named as defendants in the case have yet to name their lawyers and did not respond to inquiries from The Trace, except for Interstate Arms, which declined to comment.
Even if a U.S. court rejects Mexico’s assertion that PLCAA is moot in an international context, the country has made other claims that could keep its lawsuit afloat. The complaint also accuses the gunmakers and wholesalers of violating unfair business practices statutes in Connecticut and Massachusetts, and for selling defective weapons. Both of those claims appear to fit within PLCAA’s exceptions.