In a Unanimous Opinion the Supreme Court Has Thrown Out Mexico’s Suit Against Smith & Wesson

No, it wasn’t a Second Amendment-related lawsuit. You can tell that because the Supreme Court ruled unanimously — yes, that includes Justices Kagan, Sotomayor and Brown — that a law that is on the books actually means what is says.

The Mexican governent, with the urging help of former Brady Chief Counsel Jonathan Lowy, had sued Smith & Wesson arguing that the company was somehow at fault for cartel-related violence within its own borders. They alleged that S&W “aided and abetted” violations of US law that resulted in guns crossing the border to arm the cartels. Because of this alleged aiding and abetting, they claimed, the shield of the Protection of Lawful Commerce in Arms Act didn’t apply in this case.

Mexico/Lowy alleged that Smith 1) sold to dealers it knew were supplying Mexican cartels, 2) failed to control its distribution network to stop the illegal trafficking, and 3) designed and marketed their guns in such a way as to specifically appeal to cartel members.

In the end, those arguments were a steaming a load of bovine excrement so deep and aromatic that even the Court’s three liberal Justices couldn’t ignore it.

This morning, the Court sh!tcanned the case in a 9-0 decision, ruling that the PLCAA does, in fact, protect the gunmaker against a frivolous lawfare attack such as this one. In her opinion, Justice Elena Kagan wrote . . .

…Mexico’s complaint does not plausibly allege that the defendant manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers. We have little doubt that, as the complaint asserts, some such sales take place—and that the manufacturers know they do. But still, Mexico has not adequately pleaded what it needs to: that the manufacturers “participate in” those sales “as in something that [they] wish[] to bring about,” and “seek by [their] action to make” succeed.

And . . .

[W]e cannot take the allegation here at face value, because Mexico has not said enough to make it plausible. In asserting that the manufacturers intentionally supply guns to bad-apple dealers, Mexico never confronts that the manufacturers do not directly supply any dealers, bad-apple or otherwise. They instead sell firearms to middlemen distributors, whom Mexico has never claimed lack independence. Given that industry structure, Mexico’s complaint must offer some reason to believe that the manufacturers attend to the conduct of individual gun dealers, two levels down. But it does not so much as address that issue. And even assuming the manufacturers know everything the distributors know, the complaint still would not adequately support the charge that they have identified the bad-apple dealers. Mexico does not itself name those dealers, though they are the ostensible principals in the illegal transactions claimed. Nor does Mexico provide grounds for thinking that anyone up the supply chain—whether manufacturer or distributor— often acquires that information. Indeed, the complaint points out that government agencies only sporadically provide upstream companies with information tracing Mexican crime guns to certain dealers. So Mexico’s allegation on this score is all speculation; even on a motion to dismiss, it is not enough.

Ouch. And then there’s this . . .

Mexico’s allegations about the manufacturers’ “design and marketing decisions” add nothing of consequence. As noted above, Mexico here focuses on the manufacturers’ production of “military style” assault weapons, among which it includes AR–15 rifles, AK–47 rifles, and .50 caliber sniper rifles. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country). The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too. The same is true of firearms with Spanish-language names or graphics alluding to Mexican history. Those guns may be “coveted by the cartels,” as Mexico alleges; but they also may appeal, as the manufacturers rejoin, to “millions of law-abiding Hispanic Americans.” That leaves only the allegation that the manufacturers have not attempted to make guns with nondefaceable serial numbers. But the failure to improve gun design in that way (which federal law does not require) cannot in the end show that the manufacturers have “join[ed] both mind and hand” with lawbreakers in the way needed to aid and abet.

Yes, that was Justice Kagan acknowledging that ARs and AKs are widely owned and in common use. And finally . . .

[T]he law Congress wrote includes the predicate exception, which allows some suits falling within PLCAA’s general ban to proceed. But that exception, if Mexico’s suit fell within it, would swallow most of the rule. We doubt Congress intended to draft such a capacious way out of PLCAA, and in fact it did not. The predicate exception allows for accomplice liability only when a plaintiff makes a plausible allegation that a gun manufacturer “participate[d] in” a firearms violation “as in something that [it] wishe[d] to bring about” and sought to make succeed. Because Mexico’s complaint fails to do so, the defendant manufacturers retain their PLCAA-granted immunity.

Kagan’s opinion, in effect, laughed Mexico’s allegations out of court and effectively told them to pound sand. Lowy surely knew this would be the result of such a thin case. But he was likely far more interested in dragging the matter out and dragging one of America’s biggest and most prestigious firearms manufacturer’s name through the mud whiole draining it of tens of millions of dollars in order to harm the company and its shareholders. That, after all, iw the real intent of this kind of lawfare.

The NSSF’s Larry Keane reacted as you’d expect.

“This is a tremendous victory for the firearm industry and the rule of law. For too long, gun control activists have attempted to twist basic tort law to malign the highly-regulated U.S. firearm industry with the criminal actions of violent organized crime, both here in the United States and abroad,” said NSSF’s Lawrence G. Keane, Senior Vice President and General Counsel. “The firearm industry is sympathetic to plight of those in Mexico who are victims of rampant and uncontrolled violence at the hands of narco-terrorist drug cartels. The firearm industry works closely with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to prevent the illegal straw purchasing of firearms and the illegal transnational smuggling of firearms. This unequivocal decision by the Supreme Court that PLCAA applies and there is no evidence whatsoever that U.S. manufacturers are in any way responsible is verification of commitment to responsible firearm ownership.”