Iron River Case: Blueprint for Gun Trafficking Analytics.

• Author: Slomanson, William

Table of Contents I. Introduction II. Gun Culture Divide III. Legislative Gunfight IV. Mexico Sues U.S. Gun Industry A. Framing the Debate 1. Complaint 2. Joint Motion 3. Individual Motions B. Analyzing the Debate 1. Predicate Exception 2. Standing. 3. Proximate Cause 4. Personal Jurisdiction 5. Public Nuisance 6. Choice of Law 7. Extraterritoriality and International Law 8. Regional Impact 9. Mexican Carnage C. Comparable Litigation and Settlements 1. Gun Industry v. Attorney General: Role Reversal 2. NAACP v. AcuSport: Civil Rights 3. PCLAA Ban Constitutionality: Lone Dissent 4. Remington Settlement: Crack in the Armor 5. Smith & Wesson Settlement: Out of Reach D. Attorneys' Fees E. Trial Court Order on Motion to Dismiss V. Conclusion "Just as you see the flow of drugs that comes north, there is an iron river of guns that flows south into Mexico to supply criminal organizations on the border." (1)

1. Introduction

   An estimated 200,000 guns are smuggled from the United States into Mexico each year. (2) Mexico claims that the number of trafficked guns ranges between "342,000 and 597,000." (3) Seventy percent of guns recovered at Mexican crime scenes are traced back to the United States. (4) Many of these weapons are military-style assault rifles, shipped into Mexico by U.S. drug gangs. This pipeline endangers citizens of the four U.S. border states, the nation's counties, and police who are outgunned by the cartels. (5) As a result, "tens of thousands" of Mexico's citizens have been killed. (6)

   The typical precursor is sloppy or illegal practices in the manufacturer-wholesaler-retailer-buyer distribution chain. (7) The fix for this downstream odyssey was classically depicted two decades ago in a judicial opinion that exposed the seedy journey at the root of this ubiquitous enterprise:

   [Manufacturers and distributors ... can, through the use of handgun traces and other sources of information, substantially reduce the number of firearms leaking into the illegal secondary market and ultimately into the hands of criminals.... A responsible and consistent program of monitoring their own sales practices, enforcing good practices by contract, and the entirely practicable supervision of sales of their products by the companies to which they sell could keep thousands of handguns from diversion into criminal use.... The evidence showed that the ... data available to the industry ... could be used by [the mostly out-of-state] defendants to substantially reduce sales of guns to "bad apple" dangerous retailers or to insist that such merchants change their practices. (8) Mexico's unique lawsuit presents the first time that a foreign government has sued American gun makers. (9) If ultimately successful on appeal, this novel filing could encourage similar litigation by other nations, including a hypothetical Russian suit over the war in Ukraine. (10) Mexico brought its lawsuit in the United States for several presumptive reasons. Mexico seeks stratospheric damages of billions of dollars. (11) This extraordinary amount is more likely recoverable in an American court than in a Mexican one. Any recovery would be more likely, if based on a U.S. judgment. Securing the appearance of these U.S. corporations in a Mexican venue would be beyond wishful thinking.

   Notably, Estados Unidos Mexicanos is not a lawsuit against the Second Amendment. Mexico instead hopes to trigger an exception to a federal statute that generally bars such suits against the U.S. gun industry. (12) The plaintiff relies on lower U.S. court cases that have either interpreted that immunity in a way that allows such lawsuits to proceed or have considered this federal statute unconstitutional. Mexico's other major hurdle is establishing that a U.S. court can exercise personal jurisdiction when all of the alleged harm has occurred in Mexico.

   The above article Index draws the roadmap for a debate that will have to be resolved by the U.S. Supreme Court. The U.S. Government has intervened in the most recent case to defend the federal statute barring a lawsuit against gun industry members. The Estados Unidos Mexicanos pleadings, amicus curiae, comparable cases, and settlements provide a comprehensive analysis of this thousand-piece legal jigsaw puzzle. Nevertheless, this prototypical lawsuit will not unlikely dodge the dismissal bullet because: (1) it does not trigger an exception to federal immunity from such lawsuits; or (2) the court lacks personal jurisdiction over the nonresident defendants.

2. GUN CULTURE DIVIDE

   The U.S. and Mexican gun cultures could not be more different. U.S. citizens enjoy a robust constitutional right to gun ownership in their homes and in public. (13) Some U.S. states even permit open carry. (14) As of 2020, there were an estimated 52,799 federal firearm dealers in the United States. (15) This figure does not include person-to-person transfers, gun show, internet, underground, or ghost-gun sales. In striking contrast, there is only one gun store in all of Mexico, and that store severely restricts purchases. (16)

   The gun ownership tsunami was carefully scrutinized by U.S. government agencies. During the period associated with the 2004 lapse of the Federal 1994 Assault Weapons Ban, and adoption of the 2005 ban against suing the gun industry, various U.S. government agencies expressed concerns aligned with those of Mexico. A plan from the ATF stated that its "[enforcement efforts would benefit if the firearms industry takes affirmative steps to track weapons and encourage proper operation of Federal Firearms Licensees to ensure compliance with all applicable laws." (17) Per a U.S. Department of Justice proposal: "The firearms industry can make a significant contribution to public safety by adopting measures to police its own distribution chain.... [Manufacturers and importers should: identify and refuse to supply dealers and distributors that have a pattern of selling guns to criminals and straw purchasers...." (18) A Violence Policy Center report determined:

   Despite the clear and present danger that fifty caliber sniper rifles present to homeland security, they are sold under federal law with fewer restrictions than handguns. To effectively keep these weapons out of the hands of terrorists, Congress should act quickly ... [to] regulate fifty caliber sniper rifles in the same manner as machine guns. (19) These concerns were not heeded by Congress or the gun industry. Congress enacted the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). (20) The gun industry dramatically increased its production, distribution, and marketing programs. (21) The resulting percentage of gun-related homicides in Mexico has since increased. (22) This uptick is especially evident in the United States during the last decade's proliferation of assault rifles. (23)

3. LEGISLATIVE GUNFIGHT

   The 1994 Federal Weapons Assault Ban was a former subsection of the Violent Crime Control and Law Enforcement Act (Assault Weapons Ban). As the first of its two pillars provided, "[i]t shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon." (24) A lengthy list of banned assault weapons was then added to the existing code. (25) A related ban then provided that "[i]t shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device." (26) Large capacity meant "a magazine ... [or] similar device ... that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition." (27) Although there were legal challenges to that ban, the lower state and federal courts routinely determined that the ban met minimum constitutional requirements under both the Commerce Clause and Equal Protection Clause. (28)

   The ten-year sunset provision in the Assault Weapons Ban expired in 2004-not with fanfare-but rather with a whimper. (29) As a prominent political journalist lamented in 2022: "That the ban-[now] a central policy goal of Democrats after a spate of mass shootings ... was [then] allowed to expire so quietly, without the party mounting a major effort to preserve it[] ... is increasingly a matter of puzzlement and outrage." (30)

   In 2005, congressional Republicans passed the PLCAA. (31) Under its key provision: "Businesses in the United States that are engaged in ... sale to the public of firearms or ammunition products ... are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products...." (32) As the PLCAA's seemingly bullet-proof shield further cautions, "[t]he possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system ... and constitutes an unreasonable burden on interstate and foreign commerce of the United States." (33) Thus, "[t]he possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States." (34)

   The PLCAA also insulates those who manufacture and sell ammunition. (35) A plaintiff cannot plead design defect merely because of the horrific consequences of a bullet's decapitating impact. (36) As the Second Circuit acknowledged: "To state a cause of action for a design defect, plaintiffs must allege that the bullet was unreasonably dangerous for its intended use.... [but] [t]he very purpose of the Black Talon bullet is to kill or cause severe wounding." (37) The Ninth Circuit similarly recognized that the Second Amendment does not explicitly protect ammunition, however, "... without bullets, the right to bear arms would be meaningless. A regulation eliminating a person's ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose." (38) State legislatures remain divided. Currently, only eight states-California, Connecticut...