By Howard Fischer
Mail | X: @azcapmedia

Mexico is not dropping its lawsuit against five Arizona gun dealers despite a U.S. Supreme Court ruling tossing a similar case against gun manufacturers.

Steve Shadowen, an attorney who represents Mexico, told Capitol Media Services the facts in that country’s claim against Smith & Wesson and others are sufficiently different than those in the lawsuit filed here in 2022.

On one hand, he said, Justice Elena Kagan, writing for the unanimous court, acknowledge there are “unlawful sales of firearms to Mexican traffickers.”

But Shadowen said Kagan concluded the manufacturers are too far removed from the actual gun dealers that sell to the cartels to make them legally liable.

The Arizona lawsuit, by contrast, actually cites specific sales made by each specific weapons dealer that the Mexican government says eventually wound up in Mexico.

“The government of Mexico, on behalf of its citizens, will continue to pursue the Arizona litigation in which the defendants are gun dealers that the complaint alleges deal directly with the cartels,” Shadowen said.

He is not the only one prepared to go forward.

“There are two trials,” said Mexican President Claudia Sheinbaum on Thursday when she was asked by reporters in Mexico City during her daily news briefing about the Supreme Court throwing out her country’s case against the manufacturers. The other is the pending lawsuit in Arizona.

“We’re going to see what the result is, and we’ll let you know.” she said.

And David Pucino, legal director of the Giffords Law Center, said Thursday’s ruling is only about this one case by Mexico against manufacturers.

“The justices did not give the gun industry the broad immunity it sought,” he said in a prepared statement.

There was no immediate response about the impact of Thursday’s Supreme Court ruling from attorneys defending the Arizona gun shops in federal court here.

In the case before the high court, Mexico sued seven American gun manufacturers, alleging the companies aided and abetted unlawful gun sales that routed firearms to Mexican cartels.

The claim was the companies failed to exercise “reasonable care” to prevent trafficking of their guns into Mexico. And that, the Mexican government argued, made them responsible for the harms in that country from the misuse of the weapons.

In fact, the Mexican government contends as many as 90% of the guns recovered at crime scenes in that country originated in the United States.

But the justices agreed the manufacturers are shielded by the federal Protection of Lawful Commerce in Arms Act. Approved by Congress in 2005 at the behest of the gun industry, it is designed to protect firearms manufacturers and gun deals from any liability when crimes have been committed with their products.

There are exceptions. One involves any actions “in which a manufacturer of seller of a qualified product knowingly violated a state or federal statutes applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.”

While the justices did not question that U.S. manufactured guns sold by U.S. dealers wound up in Mexico — there is only one legal gun retailer in all of Mexico — they said there was nothing in the lawsuit to show the manufacturers in any way aided and abetted any unlawful sales of firearms to Mexican traffickers. That, said Kagan, is fatal to the lawsuit.

“The complaint does not pinpoint, as most aiding-and-abetting claims do, any specific criminal transactions that the defendants (allegedly) assisted,” she wrote. “Instead, the complaint levels a more general accusation: that all the manufacturers assist some number of unidentified rogue gun dealers in making a host of firearms sales in violation of various legal bars.”

The case in Arizona is different. In that lawsuit filed in federal court in Tucson, Mexico claims it already has evidence the five Arizona stores were engaged in unlawful sales.

One example cited in the lawsuit involves the 2019 sale of thousands of rounds of ammunition made by Diamondback Shooting Sports in Tucson to two individuals.

That same day they attempted to enter Mexico through Nogales. But U.S. customs officers discovered the ammo and the pair were charged with trafficking.

Another involves claims that SnG Tactical in Tucson made a cash sale to an individual of six AK-47 rifles, including five of the same model, over the course of approximately one week in September 2018. It also says that the same store sold more than $80,000 in firearms to another individual, including 11 over a two-week period in March 2019, many paid for in cash.

He, too, was convicted of trafficking.

There also are claims against Loan Prairie LLC, doing business as The Hub, in Tucson; Ammo A-Z LLC in Phoenix, and Sprague’s Sports Inc. in Yuma.
Overall, attorneys for Mexico told U.S. District Court Judge Rosemary Marquez in 2022 that over the prior five years, each of the Arizona stores has been among the 10 dealers with the most crime guns recovered in Mexico and traced back to a dealership in Arizona. And it estimates that each of the five stores is involved in “trafficking” between 55 and 822 guns to Mexico annually.

Attorneys for the five gun dealers have tried, unsuccessfully so far, to have the lawsuit tossed. They argued there was no evidence any of the weapons sold by the companies were used in Mexico in commission of a crime. But Marquez said there was enough presented in the allegations to allow the Mexican government to take its case to trial.

One of the items in the complaint filed in federal court in Arizona against the retailers may not hold sway if and when this case ever reaches the U.S. Supreme Court.

In agreeing last year to let this lawsuit go forward, Marquez said the complaint alleges there were “red flags” like bulk and cash sales that should have indicated to gun dealers what they were selling ultimately would wind up being used by cartel members in Mexico. And one of those red flags, she said, was “repeat sales of military-style weapons favored by Mexico cartels.”

A similar allegation was made by Mexico in its lawsuit against the manufacturers, citing the companies’ production of military style assault weapons like AR-15 rifles, AK-47 rifles and .50 caliber sniper rifles. That, however, did not impress Kagan.

“Those products are both widely legal and bought by many ordinary consumers,” she said, citing data showing the AR-15 to be 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.”