The Worst Part of the Unanimous Supreme Court Ruling Blocking a Lawsuit Against Gunmakers
On Thursday, the Supreme Court unanimously ruled that the government of Mexico may not continue its lawsuit seeking to hold firearms manufacturers and a firearms distributor civilly accountable for their role in causing cartel-driven gun violence in Mexico. Having taken the case at an unusually early stage in the litigation, and so working from an undeveloped factual record, all nine justices agreed that Mexico's current complaint does not even satisfactorily allege that the defendants have aided and abetted US dealers who illegally sell guns to traffickers who then get them to the cartels in Mexico.
What's worse, Justices Clarence Thomas and Ketanji Brown Jackson each wrote separate concurrences in which they wade into the substantive law of the Protection of Lawful Commerce in Arms Act , offering unprecedented interpretations that would make it harder for victims of gun violence to try to hold firearms-makers and sellers responsible for their part in the harms they cause. All in all, Thursday's intervention from the Supreme Court means expanded impunity for the firearms industry—and thus the likelihood of more death and injury due to gun violence.
PLCAA is a complex federal statute that specifies only a limited number of circumstances when victims of gun violence may bring a lawsuit against the maker or seller of a gun. Apart from these circumstances, PLCAA bans civil suits against industry members for harms arising from the criminal use of firearms. One ground for a civil action permitted by PLCAA arises when a firearms industry actor knowingly violates a statute applicable to the sale and marketing of firearms. When this happens, victims of a criminal shooting may sue the maker or seller of the firearms used, advancing any cause of action supported by facts of the case.
Mexico's complaint alleged that the named firearms manufacturers and the named distributor aid and abet rogue dealers in the US who illegally sell firearms to straw purchasers. These purchasers work with traffickers to illegally convey the arms to criminal cartels in Mexico. Aiding and abetting the sale of firearms to straw purchasers is itself a violation of the same statutes the rogue dealers are breaking. According to Mexico's complaint, the defendants' participation in breaking these laws opens them to the full panoply of civil liability for the ensuing gun violence.
Writing for the full court, Justice Elena Kagan announced that Mexico had not succeeded in stating a sufficiently plausible aiding-and-abetting claim. The court reversed the 1 st US Circuit Court of Appeals, which had held that Mexico had properly pleaded aiding and abetting, opening the door to discovery and trial on the merits.
The court's reversal is odd, because it interrupts the normal flow of civil litigation. Kagan criticized Mexico for its failure to specify precisely which rogue dealers the defendants supply and what exactly the defendants know about the dealers' illegal sales. But the ordinary way for a plaintiff to achieve such precision is by conducting discovery, thus uncovering the facts necessary to proving their case to a jury. The court today preemptively shut down this process, in essence requiring plaintiffs bringing aiding-and-abetting claims to somehow know information that they would typically learn through pretrial discovery.
It remains open to Mexico to revise its complaint to address the full court's criteria for properly pleading aiding and abetting, if Mexico can obtain the required information outside the legal process. Regardless, we know from Thursday's opinions that at least two justices—and quite possibly more—are poised to radically revise the body of PLCAA law lower federal courts have been developing.
Thomas and Jackson both went beyond the issue of aiding and abetting to make pronouncements about the sorts of conduct and kinds of legal violations that trigger PLCAA's permission to bring civil actions against the firearms industry.
Thomas wrote to cast doubt on whether PLCAA's reference to knowing violations of federal or state statutes includes violations that have not been formally found by a court or other regulatory body. No lower court that I know of has adopted this position. Indeed, no lower court opinions have even discussed the question. Yet Thomas took the opportunity to alert the firearms industry that “it seems to [him] that the PLCAA at least arguably requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the 'violation.' ” He doesn't provide even a hint of an argument that the words of PLCAA support his impression. Thomas instead vaguely gestures to “serious constitutional considerations” that would support his view.
Jackson's competition is just peculiar. She argued that Mexico's complaint should be dismissed because Mexico did not identify particular statutory violations committed by the defendants. But the complaint notes several specific statutes it alleges the defendants have violated, including the US Gun Control Act of 1968. The Gun Control Act expressly forbids selling guns to straw purchasers, buyers who purchase guns for somebody else who cannot lawfully by them. This is exactly what people who buy guns for traffickers do. The complaint also names state statutes it alleges the defendants have violated: the Connecticut Unfair Trade Practices Act (which applies to defendant Colt) and the Massachusetts Consumer Protection Act (which applies to Smith & Wesson). These statutes require the responsible sale and marketing of consumer goods, including firearms. Stocking rogue dealers with guns the manufacturers and the distributor know the dealer will sell to straw purchasers who will then supply them to traffickers breaks these laws. Ignoring the complaint's discussion of how the defendants' conduct violates the Gun Control Act, CUTPA, and MCPA, Jackson writes, “Mexico merely faults the industry writ large for engaging in practices that legislatures and voters have declined to prohibit.”
Jackson's disregard for what the complaint actually says is baffling. She claims to be concerned for PLCAA's purpose of establishing the “primacy of the political branches—both state and federal—in deciding which duties to impose on the firearms industry.” But federal gun control laws and state consumer protection statutes like the ones Mexico pinpoints do just that: They codify legislatures' decisions as to the duties firearms manufacturers and sellers have.
Perhaps Jackson regards the complaint as “conclusive” because it does not itemize occasions when rogue dealers, intentionally supplied with firearms by the defendants, violated the Gun Control Act. Nor does the complaint itemize specific instances of when the defendants violated CUTPA or MCPA. But again, even if PLCAA calls for this, the necessary facts would ordinarily be gathered by the plaintiff through discovery. By demanding more specifics on the statutory violations alleged, Jackson's position comes close to Thomas': Only formally adjudicated violations can secure a complaint against a motion to dismiss.
Writing from the right and left wings of the Supreme Court, Thomas and Jackson have emboldened Second Amendment absolutists to attack cases brought under the rubric of PLCAA. They invite lower court judges to grant early motions to dismiss. This is contrary to rule of law in an appellate system like ours. Our civil justice system permits plaintiffs to initially plead their cases comparatively generally and then to refine them in light of discovery. Quick dismissals of properly pleaded, if general, claims undermine the proper evolution of individual lawsuits. Worse, it strips all courts of the chance to identify and analyze relevant issues of law. Even if Thomas and Jackson have rightly detected questions raised by PLCAA—what constitutes a statutory violation and what does a plaintiff have to plead to preliminarily identify one—their competitions foreclose usual judicial processes for answering them.
The court as a whole and the two competitions hurtle pell-mell toward making it virtually impossible for plaintiffs like Mexico to successfully plead their claims. Beyond that, the decision short-circuits the careful development of the law of PLCAA. The statute is a particularly intricate one, which already gave an industry that produces, markets, and sells exceptionally lethal products a large measure of impunity from any civil accountability for its harm-causing conduct. The opinions handed down by the Supreme Court in Smith & Wesson v. Estados Unidos Mexicanos thwart case-by-case determination of PLCAA's applicability, a process that promotes careful explanation of the law. This is a very poor ruling. It will put more firearms in the hands of criminals who will use them to wreak havoc. It will prevent victims of this havoc from seeking justice in court.
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