The Gun Show Cowboy Crackdown
Mexico is suing U.S. gun manufacturers for fueling violence in its territory.
OCTOBER 24, 2023
This article is co-published with Foreign Policy.
On June 19, 2021, a convoy of armed men drove into the border city of Reynosa, Mexico, in the state of Tamaulipas, and opened fire on pedestrians. For more than eight hours, gunmen roamed four neighborhoods, kidnapping and killing 15 people, including two cab drivers, a nursing student, and a group of construction workers. After security forces were deployed throughout the city, four suspected gunmen were killed. In the days that followed, rumors spread on social media. People in Reynosa were afraid to go back out into the streets, factories shortened their night hours to protect their employees, and local businesses closed early.
Three days later, the attorney general of Tamaulipas, Irving Barrios Mojica, said the motive of the attack was to destabilize Mexican society. The attackers belonged to a cartel that was looking to gain control of the area surrounding the Pharr-Reynosa International Bridge, which straddles the U.S.-Mexico border. The authorities seized a formidable amount of weaponry from the men: about 180 cartridge cases in total, as well as five long guns, and several .223-caliber magazines, which are commonly used in AR-style semi-automatic rifles. These weapons had one thing in common: They came from the United States.
The Reynosa massacre is just one recent entry in a long list of violent acts committed with U.S.-made weapons in Mexican territory. At least 70 percent of guns recovered at crime scenes in Mexico between 2014 and 2018 were trafficked into the country from the United States. Although the exact number of weapons smuggled across the border is uncertain, a study quoted by the Mexican government estimates that 2.2 percent of the nearly 40 million guns manufactured annually in the United States make their way into Mexico, amounting to more than half a million weapons a year. Hidden inside vehicles, appliances, and furniture or trafficked by sea in sealed shipping containers, U.S.-made weapons are bringing violence from north to south, according to the Mexican government.
In 2021, Mexico filed an unprecedented lawsuit against U.S. weapons manufacturers and a firearms distributor in the District Court in Boston, the first suit filed by a foreign government against the U.S. gun industry. The lawsuit names gun manufacturers such as Barrett Firearms Manufacturing, Colt’s Manufacturing Company, Smith & Wesson Brands, Glock, Beretta, and Century International Arms and aims to hold them responsible for facilitating the flow of weapons across the border.
The complaint was dismissed by the District Court in September 2022, and Mexico filed an appeal in March. On July 24, the Mexican government urged the U.S. Court of Appeals in Boston to revive the suit, arguing that a U.S. law does not protect U.S. gun manufacturers from being sued over gun trafficking that leads to violence in Mexico. A ruling is expected in the coming months, but this lawsuit could potentially set a precedent for cross-border litigation and strengthen the global fight against the illicit arms trade. The Mexican government is seeking at least $10 billion in damages for economic harm, yet the primary aim of the lawsuit is more ambitious: to curb gun trafficking by forcing changes to the business practices of U.S. gun companies and pushing for tighter controls on their distribution systems.
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Mexico has strict national gun laws. There is only one store in the country where individuals can legally purchase a gun. The store is owned and operated by the military, and fewer than 50 gun permits are issued annually, mainly to prominent businesspeople, public figures, or individuals who have been the victim of a crime and need a firearm for protection, said Lt. Col. Israel Martínez Valdés from the Federal Registry of Firearms and Control of Explosives, responsible for gun permits.
After a U.S. ban on assault weapons expired in 2004, the Mexican government’s suit argues, U.S. gun manufacturers increased production, “particularly of the military-style assault weapons favored by the drug cartels.” The lawsuit alleges that this accompanied a dramatic increase in homicides across the border after 2004. One of the most common types of gun smuggling across the U.S.-Mexico border is the hormigas (“ants”) method, in which straw buyers — intermediaries with clean records who are sent to buy guns on behalf of third parties — pass weapons on to traffickers, who smuggle them in small quantities.
“The risks for Mexicans are greater, or at least they are not given a second chance, unlike Americans.”
Zulia Orozco Reynoso and Gerardo Hernández, researchers at the Autonomous University of Baja California in northern Mexico, explained that local gun shows in the United States lack restrictions and controls, which makes it easier for weapons to cross the border undetected. Dealers purchase large quantities of guns from distributors and resell them at gun shows with no paperwork and no questions asked, the Mexican government’s suit states. Private or unlicensed sellers at gun shows in the United States are not required to conduct background checks or maintain records linking weapons to buyers, a fact known as the “gun show loophole” or “private sale exception.” Traffickers can buy several guns at once and smuggle them in private vehicles without being monitored by U.S. or Mexican authorities.
The California-Baja California border region, which stretches for 120 miles, is one of the busiest land border crossings in the world. Yet while an enormous law enforcement operation ensures that people do not travel from south to north unauthorized, movement from north to south is far less surveilled. The guns “come by land, by air, by sea, and through the tunnels along the border,” Hernández said.
Much of this trafficking is done by people with dual citizenship or Americans hired by drug cartels. Mexican citizens can face up to 10 years in prison for trafficking a gun and up to 30 years for trafficking weapons intended exclusively for military use. Yet foreigners introducing a single weapon to the country for the first time are merely fined, Orozco Reynoso said, and the weapon is returned to them when they leave the country.
“The risks for Mexicans are greater, or at least they are not given a second chance, unlike Americans,” Orozco Reynoso added.
Dangerous weapons don’t just end up in the hands of criminal cartels. Law enforcement and members of the Mexican defense ministry, the nation’s sole authorized importer of firearms, have also committed atrocities with U.S.-manufactured firearms. A 2018 report by the Mexican Commission for the Defense and Promotion of Human Rights affirms that legally imported firearms have been used by police and military units in gross human rights abuses. The local police who attacked the 43 Ayotzinapa students who disappeared in September 2014 were armed with legally imported Colt AR-6530 rifles. In 2011, a man was arrested in Tamaulipas for allegedly belonging to a criminal organization; while he was in custody, a navy lieutenant killed him with a 5.56 mm Colt M16 rifle.
Mexico contends that U.S. gun manufacturers design semi-automatic rifles that can be easily modified to fire automatically, a feature sought after among cartels.
Legally acquired firearms from military and law enforcement stocks are also diverted with the cooperation of corrupt authorities. Between 2006 and 2017, more than 20,000 firearms were reported as lost or stolen, according to the Mexican defense ministry. Last year, a leak of more than 4 million confidential documents from the ministry by the hacker activist group Guacamaya revealed that high-level military members had sold guns, grenades, and tactical equipment to criminal organizations.
U.S. gun manufacturers know that their marketing and distribution practices have caused harm in Mexican territory, the Mexican government claims. According to its complaint, U.S. gun manufacturers have not implemented public safety measures in their distribution systems, such as comprehensive training for dealers and a code of conduct that requires distributors to keep better track of their inventories. Mexico contends that U.S. gun manufacturers design semi-automatic rifles that can be easily modified to fire automatically, a feature sought after among cartels. These practices “aid and abet the killing and maiming of children, judges, journalists, police, and ordinary citizens throughout Mexico,” the lawsuit says.
…over a four-year period in the mid-2000s, more than 500 Century Arms WASR-10 rifles originally purchased in the United States were seized at crime scenes in Mexico.
For Alejandro Celorio, Mexico’s lead attorney and spokesperson for the foreign ministry, this “lack of care” facilitates the illegal trade in their weapons. “It’s the number of guns but also the type of guns that are sold in the United States with total irresponsibility,” Celorio said. In the United States, “guns are sold to someone who wants to kill children in a kindergarten or to someone who works with organized crime.”
Mexico argues that these companies have access to firearms trace data that identifies specific networks of distributors and dealers that regularly supply drug cartels in Mexico. Based on reports from the U.S. Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Mexican government revealed that over a four-year period in the mid-2000s, more than 500 Century Arms WASR-10 rifles originally purchased in the United States were seized at crime scenes in Mexico. Yet Century Arms, the lawsuit claims, continued to supply its rifles to the same distributors and dealers. (Century Arms did not respond to a request for comment.)
The U.S. gun-makers filed a joint motion in 2021 to dismiss Mexico’s claims, arguing that the injury is not traceable to the gun manufacturers but rather stems from violence committed by criminals in Mexico. They further argue that allowing foreign law to apply “would invite other nations to likewise invoke their own laws to attack the U.S. firearms industry.”
“The scope of liability the complaint suggests well exceeds what any U.S. court would permit at common law, even under strict product liability. And such a pervasive assault on the firearm industry would imperil civilian access to firearms — a right guaranteed by both the U.S. and Massachusetts constitutions,” the joint motion states.
On Sept. 30, 2022, when Judge F. Dennis Saylor dismissed Mexico’s lawsuit, he stated that “while the Court has considerable sympathy for the people of Mexico,” the Mexican government’s claims do not outweigh the protections provided to gun manufacturers by the Protection of Lawful Commerce in Arms Act (PLCAA), a U.S. federal statute that bars lawsuits seeking to hold gun manufacturers liable when individuals use their guns illegally. Since 2005, the PLCAA has granted gun manufacturers and dealers broad immunity from lawsuits when deadly crimes are committed with their products. Saylor added that while the PLCAA contains several exceptions, such as claims for damage caused by a defective firearm or for entrusting a gun to someone the dealer knows is high risk, none apply in this case.
However, in its appeal, the Mexican government argues that because crimes were committed on Mexican territory, U.S. federal law does not apply; instead, Mexico should be allowed to sue the companies for breaches of Mexican law. When U.S.-based corporations cause injury abroad, the U.S. Constitution and statutes allow other nations to sue for violations of their own laws, the lawsuit states. It further argues that the defendants violated Connecticut and Massachusetts consumer protection laws by knowingly marketing their products to criminals and drug cartels.
Heidi Li Feldman, a law professor at Georgetown University and an expert on gun litigation, said the Sandy Hook settlement provides a road map for how to circumvent PLCAA protections with consumer protection laws. In that case, the families of nine victims of the 2012 shooting at Sandy Hook Elementary School argued that Remington Arms, the manufacturer of the AR-style semi-automatic rifle used in the shooting, violated state laws by marketing its Bushmaster XM15-E2S to “at-risk” young men as a combat weapon and allowing the gun to be depicted in video games. They reached a $73 million settlement with Remington in 2022.
A win for Mexico could open the door for other foreign governments to sue U.S. gun-makers for violence in their countries.
“The suit’s going to be fiercely fought on the grounds of whether PLCAA applies to it in the first instance,” Feldman said. The PLCAA was never meant to apply extraterritorially, she said, and it would be “politically unpopular” in the United States to allow foreign governments to sue.
Mexico filed a second lawsuit in a U.S. federal court in October 2022, this time against five gun dealers in Arizona. That lawsuit seeks to prove that the dealers knowingly sold weapons to straw purchasers.
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This complex web of protections for gun manufacturers, mainly created by the PLCAA, makes it hard for Mexico to win. But the lawsuits have received international support. Among those that submitted supporting amicus curiae briefs are U.S. prosecutors and district attorneys, activists and victims of armed violence from both sides of the border, and Caribbean countries that argue that the flow of guns across the U.S.-Mexico border has increased the deadly violence throughout the entire region.
“We have come a long way, and this conversation about the illicit arms trade is becoming more and more questioning about the irresponsibility of companies,” Celorio said.
A new U.S. bill, the first major federal gun safety bill passed in nearly 30 years, alslo may change smuggling patterns. The U.S. Congress passed the Bipartisan Safer Communities Act, and cracks down on straw purchasers, allowing them to be punished with up to 15 years in prison, or 25 years if the firearms are linked to serious criminal activity such as drug trafficking. Last September, a 25-year-old US citizen living in Mexico was caught driving south to the port in Laredo, Texas, with 17 handguns. He is the first person believed to be convicted under the new Safer Communities Act. According to Justice Department officials, between January 21, 2020, and July 11, the 25-year-old purchased a total of 231 handguns in calibers of 9mm, .380 and .22.
But the success of the Mexican lawsuits depends largely on lifting immunity for the powerful gun industry and lobby. A win for Mexico this could open the door for other foreign governments to sue American gunmakers for violence in their country. Whatever the outcome, the litigation raise a question that the United States has not wanted to hear: Who will hold U.S. gun manufacturers responsible for the violence they cause abroad?
This article is co-published with Foreign Policy.
✺ Published in “Issue 9: Weapons” of The Dial
