Legal Case Analysis
Mexico sued S&W and other manufacturers. They claim that but for those evil gun makers, the cartels would not have guns.

The district court said, “PLCAA applies. Get the out of my courtroom”.

Mexico appealed, the First Circuit says the case can go on. The price of your firearms just went up, again.
(1400 words)

The first pages of the opinion issued by the First Circuit court tell us that The People have lost another round. It takes nearly 30 pages to find out why, though.

The Protection of Lawful Commerce in Arms Act (PLCAA) was put in place by a bipartisan congress to stop those anti-gunners that were filing nuisance suits against entities in the firearms’ industry. FFLs and manufacturers, primarily.

Since the PLCAA passed, those same anti-gunners have been trying to find a way around it. On the media front, they make the false claim that “only the gun industry can’t be sued”. This has never been true.

The arms industry is the only industry where people attempt to hold the manufacturer responsible for the acts of a third party. The standard example would be a wife suing Ford because her husband was killed by a drunk driver driving a Ford F-150.

Or worse, suing because her husband was that drunk driver and was killed in a traffic incident which he caused.

It doesn’t make sense. The argument is based on two shaky, and false, foundations: 1) There is no need for guns, 2) If they didn’t make guns, nobody would be killed.

I’m reminded of this quote:

Because the horror of Communism, Stalinism, is not that bad people do bad things — they always do. It’s that good people do horrible things thinking they are doing something great.”

[Six Questions for Slavoj Žižek, Harper’s Magazine, November 11, 2011]

And I’m not sure those who wish to disarm us are “good people”. They do horrible things, though.

When some asshole shot up Sandy Hook Elementary School, those grieving parents were immediately set upon by the blood vultures of the anti-gun cults. The blood vultures got those grieving parents to file lawsuits.

Did they sue the responsible party? Nope. He was dead. They wanted to sue his mother. They couldn’t. He had murdered her too.

He murdered her to gain access to her firearms.

So a monster committed murder to commit mass murder of children.

How did they sue? They sued Remington, the owner of Bushmaster, who had sold the rifle that monster stole from his mother, after he killed her.

Yes, I’m being repetitive here. He did not buy a gun. Nobody sold him a gun. He committed murder to gain access to a gun.

The PLCAA should have protected Remington. Instead, the vultures claimed that Remington was guilty of illegal advertising. As far as I can tell, the argument was circular. He made his mother buy the Bushmaster because he saw Bushmaster advertising. Since he committed murder and mass murder that advertising was illegal.

Did they present any evidence that he had ever seen a single advertisement for a Bushmaster rifle? Nope.

The Connecticut Supreme Court decided the PLCAA didn’t apply because Bushmaster might have done illegal advertising.

Remington went bankrupt and the insurance companies settled, out of court.

California and a few other states have taken a lesson from that win for the vultures. They have created laws that infringe on the First Amendment protected rights of entities in the arms industry. The law in California could get a manufacturer sued if they were to make a firearm that was downsized to fit a youngster.

Which takes us to the case of —Estados Unidos Mexicanos V. Smith & Wesson Brands Inc., No. 22-1823 (1st Cir. Jan. 22, 2024). I covered this case ages ago when oral arguments were heard.

I’ll start with the good news:

In sum, we hold that the PLCAA applies to lawsuits by foreign governmental entities for harm suffered outside this country, just as it applies to lawsuits by domestic governmental entities for harm suffered in this country. We turn next to Mexico’s contention that, even if the PLCAA applies generally to suits by foreign governments for foreign harms, it also excepts from its ban claims of the type presented in Mexico’s complaint.
id. at 30,31

If they had stopped there, then the world would be better. They did not.

As the title of the Protection of Lawful Commerce in Arms Act suggests, the statute is designed to protect only “lawful” commerce in arms. It contains various exceptions to ensure that it does not insulate firearm companies against lawsuits resulting from their unlawful behavior. One of those exceptions, known as the predicate exception, exempts from the PLCAA’s clutches “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.” 15 U.S.C. § 7903(5)(A)(iii). Mexico contends that its lawsuit meets this description.
id. at 31

Wow, the PLCAA has “clutches”? This sounds more like the Judge Kayatta’s biases coming out.

So we know that they are going to claim that S&W did something illegal.

What statute or regulation did they violate? Why none. They violated a “common-law”, according to Mexico.

Mexico claims that the defendants (Good guys) aided and abetted illegal downstream sales and by selling unlawful “machineguns”.

This makes my head hurt.

The claim is that the defendants are supplying dealers that they “know engage in straw sales and large-volume sales to traffic guns into Mexico.” These are not facts in evidence. Do you think that if a single FFL were to be caught doing straw sales to drag cartels, we wouldn’t be reading about it every day?

They are also claiming that S&W and others are “plac[ing] serial numbers on their weapons in a manner that facilitates their removal”. I don’t know a single modern firearm where it is “easy” to remove a serial number.

The Judge Kayatta puts it this way:

Notionally, imagine a dealer, a distributor, and a manufacturer standing abreast of one another at the border. The manufacturer hands the distributor ten guns, the distributor hands them to the dealer, and the dealer then hands them to a group of ten customers, among whom there are eight well-known agents of the cartel acting as straw purchasers. Rather than refusing to fill an order for ten more guns by that dealer, the manufacturer tweaks its advertisements to better appeal to the cartel, supplies them more guns, and so on over and over again. We think it clear that by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales. And this scenario, in substance, is fairly analogous to what Mexico alleges.
id. at 40–41

Except it doesn’t work that way.

The First then cites to Direct Sales Co. v. United States 319 U.S. 703 (1943). In that case, a company was selling prescription drugs mail order. One doctor was buying an unusually large amount. The company was told to stop selling to him. They did not.

The Supreme Court found that they were aiding and abetting in the illegal sales of prescription drugs.

Except, in that case, the analogous person is the distributor, not the manufacturer. The pharmaceutical company was not charged for selling prescription meds to Direct Sales Co.

At least they decided that the claims of selling machineguns was bogus.

We conclude that Mexico has adequately alleged proximate causation, thereby satisfying the final demand of the predicate exception. Of course, our holding at this stage is based on the allegations in the complaint, construed favorably to Mexico. Mexico will have to support its theory of proximate causation with evidence later in the proceedings.
id. at 60

The PLCAA was designed to stop lawfare against commerce in arms. As explicitly stated, the reason for the PLCAA is that the mere act of defending yourself in court is expensive. So expensive that it can cause bankruptcy.

The First Circuit found that the PLCAA presumptively protected the defendants from this lawsuit. They then twisted and danced until they could fit the exception. All based on allegations.

If you combine this with the “well, they are selling machineguns!” It is even more obvious that their every claim is a stretch.

There are no dissents of this opinion. So three-zero against The People.

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By awa

4 thoughts on “Lawfare, Part n+1”
  1. IANAL warning in full effect here…
    The Sandy Hook people got away with it because they sued Remington for violating a law about advertising, not guns, gun sales, etc… The PLCAA has nothing to do with it. Granted, it “sort of” applied because of the advertised product, but in reality, the entire lawsuit was outside of the PLCAA.
    In fact, if the case actually went to a jury, there is a good possibility Remington would have won it. Proving that advertising is the cause of criminal behavior is a very, very, very high bar. Unfortunately, poor management left it to an insurance company to settle, and that emboldened those who would seek lawfare as a weapon.
    Regarding the Mexico suit, the PLCAA can apply, but this “…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.” is the most important and relevant statement in the case.
    So, if Mexico can demonstrate that a FFL, manufacturer, dealer, or wholesaler violated the law, and knowingly sold or marketed firearms for an illegal use, they may have a case.
    Did Smith and Wesson violate the law? I seriously doubt it. Like, if they did, it was totally by accident, and the person who violated that law is no longer employed.
    Now, before this case goes one step forward, I think the plaintiff (Mexico) needs to demonstrate sufficient evidence that a law governing commerce in firearms was violated. Did S&W knowingly sell guns to the cartels?
    If that is the claim, provide some evidence.

    1. Thinking a bit further on this…
      Had Sandy Hook been in a different state, odds are, Remington could not have been sued.
      I know CT has a law in place about advertising that was applicable here. (barely applicable, I have no doubt the plaintiffs were just trying to cost Remington money.)
      Other states may not have had a law that could be twisted to applying. I notice that not a lot of other shootings have resulted in identical lawsuits since then.

  2. We will soon learn the ‘level of corruption factor’ at work here. For Mexico to make such a legal claim, there had to have been some ‘assistance’ from someone in the current administration. It will be interesting how they proceed, and who enables the case to advance through the system.
    I do find it curious that Obama presided over the Fast n Furious program to do exactly what Mexico claims in this case. And I will assert that Obama is the force behind this lawsuit–the chief enabler of political chaos.

  3. It’s kind of odd to see Mexican politicians pull this sort of chicanery, given how much money they make from the cartels and their trafficking in drugs and humans.

Only one rule: Don't be a dick.

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