From Jonathan Turley.
JT is on target.
Assumption: A manufacturer who sells a legal product to a
legal customer can be sued for downstream illegal use of the product.
Consequence: There will be no products.
Here is JT’s comment.
Over
the Border: Gun and Torts Liability to Collide in Mexican Case Before the
Supreme Court
This month, there is a new case on the docket after the
Supreme Court granted certiorari in Smith & Wesson Brands v. Estados
Unidos Mexicanos. The First Circuit reversed
a trial court that dismissed the case, alleging that the American firearms
industry is legally responsible for violence in Mexico. I believe the First
Circuit is dead wrong and will be reversed. However, as a torts professor,
there is a question of whether the tort element of proximate cause could be
materially changed in the case. Torts
professors are already lining up to argue that there is a proximate cause
under existing doctrines to hold the firearms industry liable. I respectfully
disagree.
In the petition,
Smith and Wesson and other gun manufacturers challenge the claim, including the
argument that their sale of lawful firearms in the United States is the
proximate or legal cause for the carnage in Mexico. They note that Mexico has
long been riddled with violence and corruption connected to the extensive drug
industry in that country.
In my view, the trial court dismissed the case correctly
under the Protection of Lawful Commerce in Arms Act (PLCAA). That was
passed to bar suits against firearms companies based on criminals using these
products for criminal or intentionally tortious acts.
However, the First Circuit reversed on the ground that
Mexico has made a legally cognizable case that gun manufacturers aided and
abetted firearms trafficking that has harmed the Mexican government. The First
Circuit is an outlier in this case and ignores both the purpose of the law and
basic tort principles of proximate causation.
The Court has accepted the review on two questions:
1. Whether
the production and sale of firearms in the United States is the “proximate
cause” of alleged injuries to the Mexican government stemming from violence
committed by drug cartels in Mexico.
2. 2. Whether
the production and sale of firearms in the United States amounts to “aiding and
abetting” illegal firearms trafficking because firearms companies allegedly
know that some of their products are unlawfully trafficked.
4. PLCAA was enacted to require dismissal at the inception of
lawsuits like this, and other courts have recognized that. The First Circuit’s
decision creates a circuit split.
Mexico’s complaint is wildly off base both factually and
legally. It suggests that these companies are effectively funneling guns to
criminal gangs in Mexico by producing products that they have used in criminal
conduct.
The First Circuit adopted an analogy that destroyed the
credibility of its decision:
Imagine that a U.S. company sent a mercenary unit of combat
troops to attack people in Mexico City. Such an attack would directly cause
Mexico itself the expense of paying soldiers to defend the city. Proximate
cause would be quite clear. So, too, here, where the defendants are alleged to
have armed the attackers for their continuing assaults.
Is that the best these federal judges could come up with?
There is a vast difference between the United States sending a combat unit
across the border and manufacturers who supply distributors who serve dealers
who sell lawful products to consumers. That sounds more like The Merchandisers
than The Expendables.
PLCAA specifically bars any “qualified civil liability
action” against gun manufacturers and licensees. Any action filed against a
federal firearms licensee for damages or other relief resulting from the
criminal or unlawful misuse of a firearm is expressly addressed in the statute
under § 7902 of PLCAA: “A qualified civil liability action … shall be
immediately dismissed by the court in which the action was brought or is
currently pending.”
Mexico and gun control advocates are focusing on an
exception for any manufacturer or seller of a firearm that “knowingly violated
a State or Federal statute applicable to the sale or marketing of the product
[firearm], and the violation was a proximate cause of the harm for which relief
is sought….”
The First Circuit found that, if proven, a case can be made
that Smith & Wesson engaged in “affirmative and deliberate efforts to
create and maintain an illegal market for [its] weapons in Mexico” and that, as
such, it was “aiding and abetting downstream dealers in violating state and
federal laws governing the transfer of firearms.” The level of speculation and
conjecture in such a claim is manifestly obvious. Mexico failed to offer
anything beyond conclusory claims as to “downstream” users to allege this nexus.
The exception is clearly directed at violations of gun
statutes, such as falsifying records or conspiracy to sell to a specific
prohibited person. Even then, it must be shown to be the proximate cause of the
injury. Mexico does not maintain such a specific showing but treats sales
generally as aiding and abetting the violence in that country.
Under standard tort doctrine, criminal or intentionally
tortious acts by third parties generally cut off legal causation. However,
there is an exception where such conduct is foreseeable. Here is the language
from Second Restatement of Torts 448:
“The act of a third person in committing an intentional tort
or crime is a superseding cause of harm to another resulting therefrom,
although the actor’s negligent conduct created a situation which afforded an
opportunity to the third person to commit such a tort or crime, unless the
actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person
might avail himself of the opportunity to commit such a tort or crime.”
The Third Restatement contains the same approach while,
again, recognizing that “If the third party’s misconduct is among the risks
making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will
be within the defendant’s scope of liability.” Restatement (Third) of Torts:
Physical & Emotional Harm (2010)§ 19 cmt. c (“If the third party’s
misconduct is among the risks making the defendant’s conduct negligent, then
ordinarily plaintiff’s harm will be within the defendant’s scope of liability.”).
However, these exceptions have not been extended to the
extent envisioned by Mexico or the First Circuit. For example, in the famous
case of Brower v. New York Central & Hudson River Railroad, 91
N.J.L. 190 (1918), a train negligently struck a wagon carrying cider and
knocked the driver senseless. The railroad personnel left his goods unprotected
and they were stolen. The court ruled:
“The negligence which caused the collision resulted
immediately in such a condition of the driver of the wagon that he was no
longer able to protect his employer’s property; the natural and probable result
of his enforced abandonment of it in the street of a large city was its
disappearance; and the wrongdoer cannot escape making reparation for the loss
caused by depriving the plaintiff of the protection which the presence of the
driver in his right senses would have afforded.”
Simply selling a lawful product falls significantly short of
this type of nexus. It would be akin to holding train manufacturers liable for
the negligent operation of the train engineer in Brower in aiding
and abetting such conduct by third persons.
It is hard to see how the Court could find that these
companies were “the” proximate cause of the harm without creating a federal
standard for proximate cause that would extend foreseeability beyond any
recognition. There are powerful superseding intervening forces in play in
Mexico. To embrace this theory that the manufacturers knowingly and foreseeably
increased the risk of violence in Mexico would allow torts to effectively gut
the industry and existing federal law.
Previously, gun control advocates tried to use product
liability and nuisance laws to curtail gun sales. Those cases failed as
over-extending tort doctrine to achieve indirectly the courts what could not be
achieved directly in the legislatures. Conversely, Congress passed PLCAA to
prevent such circumvention of the legislative process.
There are good-faith arguments to be made that the exception
for criminal conduct can be maintained where there is sufficient foreseeability
and that the First Circuit was merely allowing Mexico to prove its case.
However, the complaint is manifestly insufficient for such a claim.
There is no specific evidence that would establish the
required showing of knowledge or foreseeability by manufacturers in working
with Mexican drug gangs. Mexico has been rife with drug cartels and corruption
for decades. Much of this violence has occurred with the cooperation and
collusion of Mexican officials, including law enforcement officials.
In my view, the First Circuit should and will be reversed.
