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Earlier this month, in Smith & Wesson v. Estados Unidos Mexicanos, a unanimous Supreme Court held that the Protection of Lawful Commerce in Arms Act (PLCAA) barred the Mexican government’s lawsuit against seven major U.S. gun manufacturers. Mexico had alleged that the companies aided and abetted unlawful gun sales to Mexican traffickers and were therefore liable for billions of dollars in damages for violence subsequently committed in Mexico by drug cartels who used those weapons.

The opinion vindicates the nation’s lawful gun industry against one of the more egregious attempts in recent history to circumvent the PLCAA’s protections. At the same time, Mexico’s clumsy handling of its pleadings made it all too easy for the Court to toss the lawsuit without weighing in on several important but unresolved questions about PLCAA litigation.

The PLCAA generally bars lawsuits against gun manufacturers or sellers that stem from the “criminal or unlawful misuse” of their products by “a third party.” Congress passed the statute in 2005 as an overwhelmingly bipartisan response to years of concerted efforts by anti-gun groups and politicians to target gun manufacturers with a constant barrage of frivolous, but expensive and time-consuming, civil liability lawsuits. 

While these lawsuits increasingly used innovative tort theories focused on the gun companies’ marketing practices or their alleged “oversupply” of firearms, they invariably boiled down to the same core premise: the lawful gun industry should be held financially responsible for downstream harms caused by some third party’s misuse of their lawful products. The goal of these lawsuits was not to win in court (a rare outcome, indeed), but to browbeat the gun industry into “voluntarily” adopting a host of gun-control restrictions that were otherwise too unpopular or constitutionally dubious to survive the legislative process.

In 2022, the Mexican government sued seven major U.S. gun manufacturers, alleging the companies were liable for billions of dollars in downstream harms inflicted by drug cartels. Mexico tried to side-step the PLCAA’s otherwise explicit prohibition of such a lawsuit by pleading its way into the statute’s so-called predicate exception. That exception permits lawsuits stemming from third-party actions where the defendant company “knowingly violated a State or Federal statute applicable to the sale or marketing” of firearms, and the “violation was a proximate cause of the harm for which relief is sought.” Mexico theorized that the manufacturers violated federal law by aiding and abetting retailers’ criminal sales of their products to Mexican gun traffickers, and that these alleged violations of federal law were a proximate cause of Mexico’s gun violence woes.

From the beginning, there were plenty of reasons to believe that Mexico’s complaint constituted something far short of a good-faith allegation of actual criminal wrongdoing by the gun manufacturers. It was similar to the same sort of anti-gun political bullying that motivated Congress to pass the PLCAA two decades ago, just with an international flair. Mexico’s entire theory for how the manufacturers aided and abetted criminal violations was, in essence, that they engaged in ordinary and lawful business practices despite knowing that some small number of unnamed retailers would inevitably engage in unlawful sales to gun traffickers.

Mexico’s chief theory of liability boiled down to little more than a complaint about U.S. national gun policy. Despite operating within one of the most heavily regulated industries in the nation, the manufacturers could have also imposed Mexico’s preferred gun-control restrictions and marketing policies on themselves, but chose not to do so. As a result of this and other alleged failures and omissions, the manufacturers became “willful accessories” to rogue retailers’ criminal sales. And their aiding and abetting of these sales was the proximate cause of Mexico’s harms because, at some point in the future after a series of intervening criminal actions carried out by multiple third parties, Mexican drug cartels criminally misuse some small but unknown percentage of the illegally trafficked products to harm Mexicans in Mexico.

Justice Elena Kagan’s opinion for the Court is, on the one hand, a much-needed rebuke of renewed efforts by gun-control activists to circumvent the PLCAA’s protections with creatively repackaged iterations of the same types of attenuated liability theories that spurred Congress to pass the statute in the first place. As Kagan explained, Mexico’s complaint did not come close to plausibly alleging the sort of “pervasive, systemic, and culpable assistance” necessary to demonstrate that the manufacturers aided and abetted criminal trafficking by rogue dealers.

Mexico even failed to identify which specific federal statutes the manufacturers supposedly violated, and declined to name any particular “rogue” retailers who acted as principals for the criminal violation. It left out the inconvenient fact that the manufacturers themselves did sell directly to retailers, but instead used middleman distributors. And the manufacturers’ alleged failures to further regulate their business practices to Mexico’s liking—even if doing so might have mitigated the downstream risk of criminal gun sales—does not amount to “aiding and abetting” in those criminal sales.

On the other hand, Mexico’s failure to adequately plead its theory of the case in the first place means the Court did not delve into the equally important questions about the predicate exception’s proximate cause requirement. Moreover, as Justice Clarence Thomas noted in his concurrence, the majority opinion did not resolve the question of what precisely constitutes a “violation” under the PLCAA’s predicate exception. Is it sufficient that a plaintiff merely allege that the defendant violated an applicable state or federal law, or does the statute require an earlier adjudication to find the defendant guilty or liable for a violation?

The answer to this question has tremendous implications for gun companies in PLCAA litigation, where plaintiffs most commonly rely on mere allegations of a predicate violation rather than on adjudicated findings of guilt. Thomas correctly observed that if plaintiffs can rely on mere allegations of a predicate violation, many defendants will inevitably be forced to litigate their criminal guilt in a civil proceeding. This perversely enables plaintiffs to weaponize PLCAA litigation by turning it into a de facto collateral adjudication of criminal guilt, but without affording gun companies the full panoply of protections normally afforded to defendants in criminal proceedings.

Nor does the Smith & Wesson opinion settle questions of what it means for a statute to be “applicable to the sale or marketing” of firearms. The Ninth Circuit, for example, has held that the predicate exception does not encompass statutes that, like public nuisance laws or general unfair trade practices acts, codify general tort theories. But other state and federal courts have employed incredibly broad constructions of the phrase that risk undermining the PLCAA’s purpose.

Consider the Connecticut Supreme Court’s 2022 decision in Remington Arms v. Soto. There, family members of victims killed in the 2013 shooting at Sandy Hook Elementary School sued Remington over the gunman’s criminal use of its products. The plaintiffs tried to sidestep the PLCAA’s general bar by pleading through the predicate exception, arguing that Remington violated Connecticut’s general unfair trade practices statute by engaging in the allegedly “unethical, oppressive, immoral, and unscrupulous” marketing practice of advertising semiautomatic “military grade” rifles to civilians. The Connecticut Supreme Court interpreted the PLCAA’s predicate exception to broadly encompass any statute “capable of being applied” to firearm sales or marketing, even if, as a result, the exception swallows the rule entirely.

Until the Supreme Court definitively slams the door shut on abusive litigation tactics by resolving these questions, gun-control advocates will inevitably seek to exploit this silence in their never-ending efforts to dodge, duck, dip, dive, and pivot their way around the PLCAA.