On June 5, in Smith & Wesson Brands Inc., et al. v. Estados Unidos Mexicanos, the U.S. Supreme Court unanimously ruled that Mexico’s lawsuit against seven U.S. gun manufacturers and one distributor is barred by the immunity they enjoy under the Protection of Lawful Commerce in Arms Act (PLCAA). The opinion reversed a decision of the U.S. Court of Appeals for the First Circuit which had allowed some of Mexico’s claims to move forward.
The Court held that Mexico did not “plausibly allege that the defendant manufacturers aided and abetted gun dealers’ unlawful sales of firearms to Mexican traffickers.” As a result, it remanded the case to the U.S. District Court of Massachusetts for further proceedings. (I signed an amicus brief submitted to the Supreme Court on behalf of social science, medical, and legal scholars in support of Mexico.)
This is the first time that the Supreme Court has considered a case involving the liability of gun companies. Although Mexico did not prevail, the Court did not accept that gun companies have blanket immunity: aiding and abetting remains a possibility if arms manufacturers have an active and culpable participation in facilitating arms trafficking.
Background and Procedural History
The case has been followed closely in Mexico, where the government estimated that 200,000 firearms were smuggled into the country from the United States each year as of 2021. More recently, a U.S. interagency investigation estimated that cartels were trafficking between 250,000 and 1 million U.S. weapons into Mexico annually. Data from the bureau of Alcohol, Firearms, Tobacco and Explosives (ATF) further shows that crime guns recovered in Mexico often originate from Arizona, California, New Mexico, and Texas.
Mexico’s original complaint was filed in 2021 and argued that the named gun companies aid and abet gun traffickers in smuggling weapons into Mexico through irresponsible manufacturing, marketing, and distribution practices. According to Mexico, this failure “to exercise reasonable care” amounted to negligent conduct that resulted in arming drug cartels on its territory and caused extensive financial losses derived from the government’s fight against organized crime. As alleged in the complaint, Mexico estimates that the value of the defendants’ guns alone trafficked into Mexico (which represent only a portion of the total guns trafficked) is over $170 million a year.
The PLCAA prohibits any qualified civil liability action against gun manufacturers in federal or state courts. One exception to this rule is the predicate exception, 15 U.S.C. § 7903(5)(A)(iii), which allows suits when the manufacturer “knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” To trigger the exception, Mexico argued that the gun manufacturers knowingly sold their products through distribution channels which flowed into the illicit market.
Following a motion to dismiss filed by the gun manufacturers, the district court held in 2022 that most of Mexico’s claims were barred by PLCAA. Mexico appealed, and in January 2024 a First Circuit panel unanimously allowed some of Mexico’s claims to go ahead on two grounds. First, because Mexico had adequately alleged that “defendants aided and abetted” downstream trafficking of their guns into Mexico. Second, the First Circuit was satisfied that Mexico cleared the proximate causation requirement of the PLCAA’s predicate exception. The defendants petitioned the Supreme Court for certiorari, which was granted in October 2024.
Aiding and Abetting
Mexico partly couched its lawsuit on the prohibition of aiding and abetting the unlawful sale of guns. To make this claim, Mexico detailed in its allegations that rogue distributors sold a steady stream of the defendants’ weapons to known straw purchasers (buyers who purchase firearms for individuals who are legally prohibited from owning them) and criminals with the defendants’ knowledge.
Counsel for Mexico noted in oral argument that by constantly supplying red-flag sellers, the defendant manufacturers had an “active, culpable participation” in aiding and abetting cartel violence. As for the knowledge element, the complaint stipulated that defendants receive tracing information from ATF on the overwhelming majority of these incidents.
The Supreme Court, however, rejected that argument, finding that Mexico had not plausibly alleged that “the manufacturers have aided and abetted gun dealers’ firearms offenses” because its complaint did not pinpoint “any specific criminal transactions” that the defendants allegedly supported.
Before reaching its conclusion, the Court first recalled three ancillary principles of aiding and abetting. First, it is a rule of secondary liability for specific wrongful acts. Second, it usually requires misfeasance rather than nonfeasance. And third, routine or incidental conduct that happens on occasion is unlikely to count as aiding and abetting. According to the Court:
What Mexico has plausibly pleaded respecting sales to offenders is a lesser wrong, which does not rise to the level of aiding and abetting. Mexico’s complaint alleges that some, though unidentified, dealers often engage in illegal transactions with Mexican traffickers.
Mexico’s complaint therefore “levels a more general accusation,” and “sets for itself a high bar,” the Court found:
It does not say, for example, that a given manufacturer aided a given firearms dealer, at a particular time and place, in selling guns to a given Mexican trafficker not legally permitted to buy them under a specified statute.
The evidentiary burden placed on Mexico here is arguably quite high for the purposes of getting past a motion to dismiss. Be that as it may, the Court found that Mexico’s charge “must be backed by plausible allegations of ‘pervasive, systemic, and culpable assistance.’” Twitter, Inc. v. Taamneh, 598 U. S. 471, 502 (2023).
In the absence of this assistance on the part of the defendants, the Court found that the gun companies merely engage in “passive nonfeasance,” as it articulated in Twitter. Mexico’s allegations pointed towards indifference rather than assistance, according to the Court:
Such “omissions” and “inactions,” especially in an already highly regulated industry, are rarely the stuff of aiding-and-abetting liability . . . A manufacturer of goods is not an accomplice to every unaffiliated retailer whom it fails to make follow the law.
For the Court, then, the alleged violations of the downstream distributors could not engage the responsibility of the manufacturers without the latter’s active and deliberate participation in bringing about the wrongful conduct.
Before closing this discussion, is worth recalling the First Circuit’s opposite conclusion that the defendants met the aiding and abetting threshold by taking concrete actions. According to the Court of Appeals, awareness of the downstream trafficking and repeated decisions to continue these deliberate sales patterns meant that aiding and abetting was plausibly alleged by Mexico. To drive this point home, the judges outlined the following scenario (slip op. at 40):
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 often 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.
The circuit judges then concluded that the manufacturers in this thought experiment would be aiding and abetting illegal sales, and that this scenario was “fairly analogous” to what Mexico alleged. Instead, the Supreme Court noted that its precedent in Direct Sales required that “more was needed for a provider of generally available goods and services to be liable for a customer’s misuse of them.” Although it was pleaded by Mexico, the Court did not reach the question of proximate cause because it found that Mexico did not plausibly allege aiding and abetting on the manufacturers’ part.
Plausibility and Future Cases
In discussing the plausibility of Mexico’s claims, the Court gave an indication of which kinds of cases against the gun industry could survive a motion to dismiss when plaintiffs invoke the PLCAA’s predicate exception for aiding and abetting arms trafficking.
For the Court, Mexico’s claims would have been plausible had it focused more on the relationship between manufacturers and reckless or criminal dealers. By way of background, U.S. gun manufacturers usually sell their products to authorized distributors, who in turn sell them to dealers. The dealers are then responsible for putting these goods directly on the retail market. This commercial setup means, said the Court, that Mexico should have elaborated on the relationship between the manufacturers and bad-apple dealers: “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.”
Mexico did not name those dealers, “though they are the ostensible principals in the illegal transactions claimed,” the Court observed. And despite the tracing information discussed in its complaint, the Court found that Mexico did not provide “grounds for thinking that anyone up the supply chain—whether manufacturer or distributor—often acquires that information.”
In a statement echoed by Mexico’s President Claudia Scheinbaum, Mexico’s foreign ministry expressed its disagreement with the decision and vowed to continue working towards stemming the flow of arms trafficking through legal and diplomatic channels. Senators from Scheinbaum’s party have also voiced their support for Mexico’s lawsuit, saying that Mexico “should continue” exploring avenues for accountability.
Mexico has a separate lawsuit in Arizona which is focused on five firearms dealers whose weapons are allegedly trafficked into Mexico. The suit was filed in 2022 and is currently in the discovery phase.
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While Mexico’s claims were set aside, the Court laid out new pathways to accountability, providing a clearer roadmap of which legal strategies are likelier to succeed.
Moreover, the Court did not accept that gun companies have blanket immunity. Aiding and abetting liability remains a possibility if arms manufacturers have an active and culpable participation in facilitating arms trafficking.
The lawsuit also has important dissuasive effects. About 83 percent of crime guns in Mexico are traced to small U.S. retailers, and these sellers now face real incentives to reassess their business practices and mitigate legal risk.
Ultimately, Mexico’s lawsuit has shifted the conversation around corporate responsibility for wrongful arms sales—a victory that extends beyond any single court ruling.
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