Smith & Wesson Corp. pistols sit on display at the company's booth during the National Rifle Association (NRA) annual meeting of members in Indianapolis, Indiana, U.S., on Saturday, April 27, 2019. Retired U.S. Marine Corps Lieutenant Colonel Oliver North has announced that he will not serve a second term as the president of the NRA amid inner turmoil in the gun-rights group. Photographer: Daniel Acker/Bloomberg via Getty Images

Silver and Lead

Inside Mexico’s Historic Lawsuit Targeting U.S. Gun Companies

Smith & Wesson Corp. pistols sit on display at the company’s booth during the National Rifle Association annual meeting of members in Indianapolis, on April 27, 2019. Photo: Daniel Acker/Bloomberg/Getty Images

Alejandro Celorio Alcantara was not surprised when the responses finally came in. As a top legal adviser in Mexico’s Ministry of Foreign Affairs, Celorio led a team of lawyers in filing a historic lawsuit in August, accusing some of the United States’ most well-known gun companies of lethal negligence on a mass scale. Seeking $10 billion in damages from a decade and a half of shoot outs and killings, the unprecedented litigation aimed to succeed where gun violence victims north of the border are all but guaranteed to fail, asking a Massachusetts federal court to hold 10 U.S.-based companies accountable for their products’ impact abroad.

Coming back from lunch on November 22, the date of the defendants’ deadline to respond, the Mexican lawyer-diplomat found that the companies had done exactly as he expected, arguing that a 2005 law that the National Rifle Association considers one of its greatest legislative achievements, which grants “broad immunity” to gun companies in gun violence lawsuits, is not bound by borders. It extends everywhere, they argued, including Mexico. The companies’ message, as Celorio read it, was simple: “’We don’t care what we’re doing. We don’t care if others don’t like the way we’re doing it. We’re gonna continue to do it.’”

The “veil of impunity,” as Celorio called it, was expected. What did catch his attention, however, was a potential seepage of politics into what Mexico insists is an apolitical legal challenge. The manufacturers, holding companies, and distributors accused in Mexico’s 139-page complaint include Smith & Wesson, Barrett Firearms Manufacturing, Beretta U.S.A., Beretta Holding, Century International Arms, Colt’s Manufacturing Company, Glock, Glock GES.M.B.H., Strum, Ruger & Co., Witmer Public Safety Group, and Interstate Arms. In a joint filing urging the court to dismiss the suit, the firms representing the companies — among them one of the largest law firms in the world, Jones Day, which represented President Donald Trump in his efforts to overturn the 2020 election — argued that “at bottom, this case implicates a clash of national values.”

“Our reading is that they’re going to try to politicize this,” Celorio told The Intercept. “They’re already increasing the political cost to the judge to rule in favor of Mexico. They’re saying, ‘You’re an American. If you let this litigation pass, you don’t hold dear to your heart the American values.’”

“They’re saying, ‘You’re an American. If you let this litigation pass, you don’t hold dear to your heart the American values.’”

More than two years in the making, the story of Mexico’s lawsuit against U.S. gun companies is unfolding on multiple levels at once. The litigation itself tests whether legal protections inscribed in the Protection of Lawful Commerce in Arms Act, or PLCAA, which President Joe Biden urged Congress to repeal in his national strategy to prevent gun violence earlier this year, extends to foreign countries. Should the challenge succeed, it would deal a historic blow to U.S. gun manufacturers. With limited exceptions, PLCAA has provided a near-impermeable shield to the U.S.-based small arms industry. For the gun companies, the law represents a vital bulwark against potentially industry-ending lawsuits. For gun control advocates, who point to instances like the victims of the Aurora, Colorado, theater massacre who were ordered to pay $203,000 to an ammunition dealer after losing a lawsuit on PLCAA grounds, it is the epitome of a deeply American brand of gun company impunity.

WASHINGTON, UNITED STATES - APRIL 14:  A young girl joins gun reform advocates holding a news conference outside the U.S. Capitol April 14, 2016 in Washington, DC. Members of Congress joined the activists in calling for the repeal of the Protection of Lawful Commerce in Arms Act arguing that their position would "advance sensible, popular legislation to curb the epidemic of gun violence that kills 90 Americans every day."   (Photo by Win McNamee/Getty Images)

A young girl joins gun reform advocates holding a news conference outside the U.S. Capitol in Washington, D.C., on April 14, 2016.

Photo: Win McNamee/Getty Images

The legal fight is also taking place against the backdrop of a dramatic historical moment in the U.S.-Mexico security relationship. In the year before and the year after PLCAA was passed, two key events took place. First, in 2004, Congress permitted a federal assault weapons ban in the U.S. to expire. Second, in 2006, the Mexican government announced the deployment of the military into the streets in a “war” on drug trafficking. The Bush administration threw its support behind the campaign with a multibillion-dollar security aid package known as the Mérida Initiative, beginning an era of unprecedentedly close binational collaboration in the drug war’s most violent front.

With the shifts in law to the north and the declaration of war to the south, the stream of military-grade weaponry flowing into Mexico, legally and illegally, became a surging river of iron. In the past decade and a half, Mexico has weathered its worst period of violence since its revolution more than a century ago, with more than 400,000 people killed and paramilitary-style criminal groups building U.S.-sourced weapons arsenals capable of inflicting significant damage on government forces. Each year, according to Mexico’s complaint, an estimated 500,000 U.S.-made firearms are illegally trafficked over the border into a country with just one legal gun shop, owned and operated by the army, and some of the strictest gun laws in the Western Hemisphere.

“We have at least 10 million guns in Mexico that shouldn’t be here because we don’t sell them in Mexico,” Celorio said. Criminal organizations, he added, “have a certain degree of impunity, not because Mexico doesn’t want to prosecute them, but because of their firepower.”

Mexican President Andrés Manuel López Obrador, popularly known as AMLO, came into office in 2018 vowing to undo the militarization of his predecessors. He declared an end to the drug war, replacing it with “abrazos, no balazos” — “hugs, not bullets” — a suite of social initiatives aimed at directing young people away from crime while rolling back the military’s presence in the streets. With violence still at record-high levels, some López Obrador critics say the president is naively ignoring a metastasized public safety threat and needlessly abandoning the progress made through years of joint security initiatives, while others point to the fact that the military’s role in the public security operations has in fact expanded under the current administration, particularly in the realm of immigration enforcement. The tenuous binational relationship came to a head in 2020, when U.S. authorities arrested, and subsequently released, Salvador Cienfuegos, the former head of the Mexican army, on drug trafficking charges. In response, an outraged López Obrador passed a law limiting U.S. Drug Enforcement Administration operations in Mexico. Last month, after Mexican foreign minister Marcelo Ebrard announced that the Mérida Initiative was “dead,” top Biden administration officials — including the heads of the departments of Justice, State, and Homeland Security — met with their Mexican counterparts to hammer out a new bilateral security framework.

“Both sides are kind of tailoring their messaging to what they want to pressure on and the message they want to project for their own public,” Stephanie Brewer, director for Mexico and Migrant Rights at the Washington Office on Latin America, told The Intercept. The Biden administration, Brewer argues, overwhelmingly approaches the binational relationship through the prism of stopping migration to the north. “This is the major challenge right now facing U.S.-Mexico security cooperation and relations more broadly: the disproportionate weight and also very counterproductive form and direction of U.S. immigration policies, border policies specifically.”

By focusing so much energy on migration, Brewer contends that progress on other key issues in the binational relationship, such as the steady flow of weapons south, has suffered. While the two countries’ new “Bicentennial Framework for Security, Public Health, and Safe Communities” does touch on arms trafficking, Brewer said, “there’s no revolutionary change in approach there.” Given the enormous power of the U.S. gun lobby and the protections in law granted to gun companies, Brewer is doubtful that the Mexican government’s legal challenge will bring about official change either. “The gun lawsuit is a very powerful and I think really relevant action,” she said. “But its ultimate impact might be symbolic rather than legal.”

Mexico’s legal complaint is careful to make clear that its targets are private entities engaged in allegedly negligent business practices — not the U.S. government nor the legitimacy of the Second Amendment. “It’s a tort law case,” Celorio said. Still, it is no secret that the litigation is one piece in a broader effort to reframe the country’s relationship to Washington on matters of violence and security. On November 22, the same day that the gun companies filed their responses, Ebrard appeared before the U.N. Security Council to present a proposal for an international strategy to combat small arms trafficking. The foreign minister explicitly connected the proposal to the lawsuit.

“The Mexican government would never try, attempt, or give a signal that we want a change in domestic law in the U.S. We respect that sovereignty,” Celorio said. “But we’re dying. We cannot wait until things happen. So that’s why we’re resorting to other actions.”

UN HEADQUARTERS, NEW YORK, UNITED STATES - 2019/06/20: Marcelo Ebrard Casaubón, Minister for Foreign Affairs for Mexico, is seen during a press encounter in the East Foyer of the United Nations Headquarters' Conference Building. Minister Ebard spoke with the press following his meeting with Secretary-General Guterres regarding Mexico's plans to curb migration from El Salvador, Honduras and Guatemala. (Photo by Albin Lohr-Jones/Pacific Press/LightRocket via Getty Images)

Marcelo Ebrard Casaubón, minister for foreign affairs for Mexico, is seen during a press encounter in the East Foyer of the United Nations Headquarters’ Conference Building in New York, on June 20, 2019.

Photo: Albin Lohr-Jones/Pacific Press/LightRocket/Getty Images

From El Paso to Black Thursday

The genesis of Mexico’s lawsuit was August 3, 2019, when a gunman walked into a Walmart busy with back-to-school shoppers in El Paso, Texas, and murdered 23 people while wounding 23 others.

Eight of the victims were Mexican nationals. Many of the others were Mexican American. The youngest victim was 2 years old. The oldest was 82. Not since the early 1900s, when posses of vigilantes and border lawmen lynched and murdered them by the hundreds, had people of Mexican descent in the Texas borderlands sustained such a bloody and targeted terror attack. Authorities said the alleged shooter, 21-year-old Patrick Wood Crusius, bought his GP WASR-10 semiautomatic rifle and 1,000 rounds of ammunition online, then drove all night from his home in Allen, Texas, with an explicit plan to murder Mexicans and repel the “Hispanic invasion of Texas.”

Facing 90 federal charges, including 45 for hate crimes, Crusius pleaded not guilty in the case. A trial date has not been set.

Celorio was in Mexico City when the news broke, having returned from a five-year posting at Mexico’s embassy in Washington, D.C., where he was section head of Hispanic and Migration Affairs. Inside the AMLO government, career officials worried that El Paso could be the beginning of something even worse. “August 2019, remember where we were in terms of white supremacism and white nationalism,” Celorio said. “We were thinking that there were going to be copycats because he basically called on others to grab their own weapons and stop the invasion.”

Ebrard tasked Celorio with finding a way to hold the shooter accountable and prevent further bloodshed. He encouraged his legal adviser to be “inventive,” in Celorio’s words, and “courageous.” Celorio traveled to El Paso and spent days meeting with prosecutors, reviewing video of the killings, and speaking with survivors. He contacted Jonathan Lowy, chief counsel and vice president of legal at Brady Legal, the litigation arm of the Brady Campaign, the country’s most prominent gun control organization. Celorio also spoke with Steve Shadowen, a Texas-based civil rights attorney who he had gotten to know through litigation involving Border Patrol agents fatally shooting Mexicans across the border. Both Lowy and Shadowen are now co-counsels in the suit against the U.S. gun companies.

Together, the lawyers discussed what it was about El Paso that Mexico hoped to address. For Celorio, part of the motivation was rooted in “the fact that someone inspired by white nationalism” could so easily acquire the means to bring their murderous fantasies to life. Early ideas for a legal response included suing Crusius, Walmart, or the city of El Paso. The problem, Celorio explained, was legal standing. “The government of Mexico wasn’t there,” he said. “You can sue representing all Mexicans, but it’s difficult.”

Two and half months after the El Paso attack, events in the Mexican state of Sinaloa prompted the government to widen its approach to the gun issue.

On October 17, 2019, Mexican security forces, reportedly operating under heavy Trump administration pressure, arrested Ovidio Guzmán López, son of the famed Joaquin “El Chapo” Loera Guzmán, in the Sinaloan capital of Culiacán for extradition to the U.S. on drug trafficking charges.

Black Thursday’s binational implications were stark: a criminal network whose financial power is derived from U.S. customers used U.S.-made weapons to terrorize a state capital and thwart a U.S.-based extradition effort.

What happened next would go down in local memory as “Jueves Negro” — Black Thursday. Hundreds of gunmen, including some who were drawn by social media calls for paid volunteers and then outfitted with guns, mobilized a blindingly swift counteroffensive. They rolled into the capital in armor-plated vehicles mounted with .50 caliber machine guns. They cut off entry and exit points into the city, staged a successful jailbreak, burned vehicles and homes, then surrounded a housing complex for the families of Mexican soldiers, effectively taking the wives and children inside hostage while they demanded Guzmán’s release. Video of the siege showed parents hiding behind cars with small children while gunfire rang out, and civilians evacuated businesses and sheltered in restaurant kitchens. Several weapons manufactured by the companies that would become defendants in Mexico’s gun lawsuit were observed at the scene, including Colt’s AR-15 platforms, Beretta and Glock handguns, and a Barrett M82-series anti-material sniper rifle, a behemoth weapon designed to disable and destroy battlefield equipment at long distances. By the day’s end, the Mexican military announced that it was terminating operations in the city, and Guzmán was free. Fourteen people were dead. The citizens of Culiacán were left to pick up the pieces after the traumatic ordeal.

In this AFPTV screen grab armed gunmen are seen in a street of Culiacan, state of Sinaloa, Mexico, on October 17, 2019. - Heavily armed gunmen in four-by-four trucks fought an intense battle against Mexican security forces Thursday in the city of Culiacan, capital of jailed kingpin Joaquin "El Chapo" Guzman's home state of Sinaloa. (Photo by STR / AFP) (Photo by STR/AFP via Getty Images)

In this AFPTV screengrab, armed gunmen are seen in a street of Culiacán, Mexico, on Oct. 17, 2019.

Photo: STR/AFP/Getty Images

Black Thursday’s binational implications were stark: a criminal network whose financial power is derived from U.S. customers used U.S.-made weapons to terrorize a state capital and thwart a U.S.-based extradition effort. Other touchstone events soon followed. Less than three weeks later, on November 4, 2019, a three-vehicle convoy was ambushed on a desert highway in the Mexican state of Sonora. The attackers disabled the vehicles with a deluge of gunfire, then set them on fire. The victims who died, three women and six children, were members of a Mormon community that has lived in the area for years. They were all dual U.S.-Mexican citizens, making the massacre a kind of grim reversal of the attack in El Paso, with Americans now gunned down on Mexican soil. Eight months later, the spectacle of extraordinary violence landed on the very doorstep of the country’s most powerful officials. As dawn broke on June 26, 2020, an estimated 50 gunmen carrying assault rifles, .50 caliber sniper rifles, and grenade launchers attacked the head of Mexico City’s police, Omar García Harfuch, while he was driven through the capital. Harfuch’s vehicle was shot more than 400 times. Both of his bodyguards were killed. Harfuch was shot three times but survived.

Together, the events in Sinaloa, Sonora, and Mexico City crystalized a realization for Celorio and his colleagues: The phenomenon Mexico hoped to address was bigger than El Paso. “The common factor in all of them was the firepower,” he said. What happened in Texas reflected what Mexico has been living through for years, with the key difference being that in Mexico, the guns fueling the violence are the illegal product of massive and illicit cross-border trade.

Attendees handle Barrett Firearms Manufacturing .50 caliber sniper rifles on the exhibit floor during the National Rifle Association (NRA) annual meeting in Louisville, Kentucky, U.S., on Friday, May 20, 2016. The nation's largest gun lobby, the NRA has been a political force in elections since at least 1994, turning out its supporters for candidates who back expanding access to guns. Photographer: Luke Sharrett/Bloomberg via Getty Images

Attendees handle Barrett Firearms Manufacturing .50 caliber sniper rifles on the exhibit floor during the National Rifle Association annual meeting in Louisville, Ky., on May 20, 2016.

Photo: Luke Sharrett/Bloomberg/Getty Images

Willfully Blind

With Ebrard’s support, Celorio began coordinating a legal strategy that would target the flow at its source. His team researched the contours of gun violence and the illicit arms trade in Mexico. They found that between 70 to 90 percent of all guns recovered at crime scenes in the country are U.S.-made, with firearms produced by six manufacturers — Smith & Wesson, Beretta, Century Arms, Colt, Glock, and Ruger — turning up most often. While previous government estimates put the number of firearms illegally trafficked into Mexico annually at around 200,000, the complaint Mexico filed in August alleged that “between 342,000 and 597,000” of the companies’ guns are trafficked into the country every year.

The legal team observed what drug war trackers have long known, that in an illicit industry that generates an estimated $250 million annually, Barrett’s powerful .50 caliber sniper rifles stand out as both a tactical asset and a status symbol. In 2016, the government noted, gunmen in the state of Michoacán used a Barrett to shoot down a helicopter belonging to the state attorney general, killing the pilot and three officers on board. “Barrett knows that its dealers sell these military guns to traffickers, often in bulk, to arm the cartels that use them to battle Mexican military and police who are trying to stop the drug trade,” the government alleged. According to the complaint, Mexican soldiers recovered 227 of the company’s .50 caliber rifles from 2010 to 2018.

Barrett wasn’t alone in appealing to organized crime, though. With its patent on the hugely popular AR-15, Colt’s guns turned up at more crime scenes than any other manufacturer’s weapons, Mexico told the court, with more than 2,000 weapons recovered between 2006 and 2018. “Colt does not even try to hide its pandering to the criminal market in Mexico,” the government complained, pointing to three .38 caliber pistols — “El Jefe,” “El Grito,” and the “Emiliano Zapata 1911” — as explicitly marketed to Mexican buyers. A Zapata pistol, named after the Mexican revolutionary and inscribed with the words, “It is better to die standing than to live on your knees,” was used to assassinate Mexican investigative journalist Miroslava Breach Velducea in 2017, adding another name to the grim tally that makes Mexico the most world’s most dangerous country for journalists.

Mexico couched its argument for damages in history, describing how the 2004 expiration of the assault weapons ban in the U.S. altered life for the worse. Prior to the expiration, from 1999 to 2004, murders in the country were on the decline, the complaint said. Once the ban expired, the defendants ramped up their production and distribution of military-grade weapons. “Border-state gun dealers now sell twice as many guns as dealers in other areas of the country,” the complaint said. According to the government, in the years immediately following the expiration, illegal gun ownership per capita in Mexico increased tenfold and the homicide rate increased by 45 percent: “No nation other than Mexico experienced a similar homicide surge during this period.” In 2003, there were fewer than 2,500 homicides committed with a gun in Mexico. By 2019, there were more than 23,000.

“The magnitude of these deaths is so extensive that, beginning in 2005, it significantly affected the life expectancy of all Mexicans,” the government said, noting that while the life expectancy in the country increased by approximately six months from 2000 to 2005, “it decreased by about the same amount from 2005 to 2010.” Today, Mexico is home to the third most gun-related deaths in the world, and even though the country has less than half of the population of the U.S., a Mexican is more likely to be killed with a U.S.-made gun than a U.S. citizen. Murder is the leading cause of death among Mexican teenagers and young adults, the complaint said, and last year more than 40 percent of Mexicans under the age of 18 reported frequently seeing or hearing gunfire in their day-to-day lives. Citing the Institute for Economics and Peace, an international think tank, the government said that the financial impact of the violence in 2019 alone was $238 billion, more than 20 percent of Mexico’s gross domestic product.

At the core of Mexico’s claim is an argument that the gun companies could make any number of changes in their business practices to help stem the violence but that in the interest of making money, they deliberately chose not to.

At the core of Mexico’s claim is an argument that the gun companies could make any number of changes in their business practices to help stem the violence — examples the government cited included “limiting sales of multiple guns,” “mandatory background checks for secondary gun sales,” “curbs on straw purchasers” (individuals who are paid to purchase weapons for a third-party buyer), and “a restriction on assault weapons sales” — but that in the interest of making money, they deliberately chose not to. As part of its legal challenge, Mexico is seeking internal records detailing what measurers the gun manufacturers are currently taking to limit the flow of their products into criminal hands. If successful, the release of such information could offer a rare window into the gun industry’s mechanisms for tracing products that turn up at crime scenes — thanks to the 2003 Tiahrt Amendment, another NRA lobbying achievement, those records have been shielded from public review for nearly two decades.

As for PLCAA, Mexico argues that the law is a nonissue in the case. The Supreme Court “has repeatedly held that where conduct in one nation causes injury in another the ‘default rule for tort cases’ is that ‘the local law of the state where the injury occurred determines the rights and liabilities of the parties,’” the government said in its complaint. When “U.S.-based corporations cause injury abroad to foreign sovereigns, the U.S. Constitution and statutes allow those sovereigns to sue for ‘violations of their own laws and to invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts.’” In other words, because the harms happened in Mexico, Mexican law applies. Rendering PLCAA even more irrelevant, Mexico argued, was the fact that the legislation was clearly passed to address alleged harms on U.S. soil alone: “Every aspect of PLCAA confirms that the U.S. Congress enacted that statute with only U.S. domestic concerns in mind.”

While the U.S. is free to chart its own course in balancing “the financial interests of the gun industry and the rights of victims within its jurisdiction,” the Mexican government argued, Mexico has the right to do the same: “Just as defendants may not dump toxic waste or other pollutants to poison Mexicans across the border, they may not send their weapons of war into the hands of the cartels, causing repeated and grievous harm, and then claim immunity from accountability.” It is not as though the companies “live on another planet in which they are sheltered from news of their corrupt dealers, the trafficking of their guns into Mexico, and the devastating damage suffered by the government and its people,” the complaint said. “They simply choose to act as if they are blind — willfully blind — to those facts.”

By increasing the production of military-style assault weapons and high-capacity magazines, marketing to criminals, and using distribution networks known to feed into their armories, the gun manufacturers have made a deliberate choice to “maintain their supply chain to the cartels,” Mexico argued. The companies have “refused calls for reform because, from the perspective of their bottom lines, their distribution systems are huge successes,” the government alleged. “Their supply of guns to the criminal market in Mexico is a feature, not a bug.”

EL PASO, TEXAS - AUGUST 07: A 'Ban Assault Weapons Now' sign is displayed near a voter registration table at a protest against President Trump's visit, following a mass shooting which left at least 22 people dead, on August 7, 2019 in El Paso, Texas. Protestors also called for gun control and denounced white supremacy. A 21-year-old white male suspect remains in custody in El Paso which sits along the U.S.-Mexico border. (Photo by Mario Tama/Getty Images)

A “Ban Assault Weapons Now” sign is displayed near a voter registration table at a protest against President Donald Trump’s visit, following a mass shooting that left at least 22 people dead in El Paso, Texas, on Aug. 7, 2019.

Photo: Mario Tama/Getty Images

Pandora’s Box

A month after Mexico filed suit, Steve Shadowen, the Texas-based co-counsel, was feeling confident. “This case is rock solid,” Shadowen told The Intercept in September.

While outside legal analysts have described Mexico’s lawsuit as a long shot, Shadowen, a tort law expert, believes the defendants have the scope of PLCAA all wrong. “Yes, the U.S. has a statute, OK, but Mexico does not have that statute. Instead, it has tort law,” he said. “We will prove that the tort law of Mexico says that Mexico should be able to recover here. This PLCAA statute is an outlier in the world, generally, and it certainly does not reflect the social policy or the law of Mexico.”

The veteran attorney predicted that his team would have “a big battle with the defendants” over the legislation. The 58-page joint motion for dismissal that the gun companies filed last month indicates he was right.

“Unable to control cartel violence within its own borders,” Mexico is attempting to shift the blame, the companies argued. “The Mexican government wants firearms, all firearms, out of Mexico,” they said. “Taking the necessary steps — improving border security, rooting out corruption, and adequately funding police and military, for starters — would require time, resources, and the political will to take responsibility for a massive social problem.” Instead of taking responsibility, Mexico is trying to circumvent an ongoing diplomatic dispute by appealing to the courts, the companies said. “By seeking to bankrupt U.S. gun makers, this gambit not only threatens America’s constitutional freedoms, but also the careful balance of firearms regulations set by Congress and state legislatures,” they argued. “This Court need not play along.”

To prove its case, Mexico relied on an “attenuated chain” of events, the companies said, that ran from production by the gun manufacturers, to the wholesaler, to individual gun stores, to straw purchasers, to cartels, to violence in the streets, to damages incurred by the government. The defendants argued that the Mexican government did not and could not prove all those steps, but even if it could, the defendants would still be shielded from liability. “In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act to prohibit precisely the type of claims asserted in this case,” they said. And even if the companies did know that some weapons would be sold to dealers who would then sell them to criminals, they were still be protected: “After all, car companies know their cars will be used for reckless driving, knife companies know their knives will be used to hurt others, and beer companies know that minors drink, but none of this knowledge makes those companies liable for resulting harms.”

If Mexico prevailed, the companies argued, it would open a Pandora’s box of legal challenges, blowing a “gaping hole” in the protections PLCAA was designed to provide.

Mexico’s “real hope,” the companies alleged, “appears to be convincing the Court that the PLCAA does not apply at all to protect U.S. firearms companies against foreign plaintiffs.” The claim had “no merit,” they said: “By its plain terms, the PLCAA applies to all suits brought in U.S. courts against U.S. defendants for conduct in the U.S., regardless of where the alleged harms occurred.” If Mexico prevailed, the companies argued, it would open a Pandora’s box of legal challenges, blowing a “gaping hole” in the protections PLCAA was designed to provide.

“The history of firearms law in the United States is a history of legislation and regulation continually calibrated to protect Americans’ constitutional rights while also protecting people from a potentially dangerous product; the Court should not allow that incremental evolution to be upended by a lawsuit filed by a foreign power,” they said. “Under bedrock principles of international law, a foreign nation cannot use its own law to reach across borders and impose liability based on conduct in another country that was lawful when it occurred there. By trying to do so, Mexico is effectively seeking to impose its own gun control policies on U.S. firearms companies in disregard of the choices made by domestic legislatures and embedded in the federal and many state constitutions.”

Wayne LaPierre, chief executive officer of the National Rifle Association (NRA), left, speaks during the NRA annual meeting of members in Indianapolis, Indiana, U.S., on Saturday, April 27, 2019. Retired U.S. Marine Corps Lieutenant Colonel Oliver North has announced that he will not serve a second term as the president of the National Rifle Association amid inner turmoil in the gun-rights group. Photographer: Daniel Acker/Bloomberg via Getty Images

Wayne LaPierre, chief executive officer of the National Rifle Association, left, speaks during the NRA annual meeting of members in Indianapolis, on April 27, 2019.

Photo: Daniel Acker/Bloomberg/Getty Images

Political Animals

The gun company immunity that Mexico is contending with can be traced to a man with deep ties to the border. Born in 1913 and raised in Laredo, Texas, Harlon Carter followed his father into the U.S. Border Patrol, eventually becoming chief and overseeing “Operation Wetback,” one of the largest deportation operations in U.S. history. A lifelong pistol shooter, Carter joined the NRA’s board of directors in 1951. At the time, the NRA’s primary mission was marksmanship education and supporting hunting and sport shooting. Carter would change all of that.

By 1965, Carter was president of the NRA. Ten years later, having secured a lifetime position on the organization’s executive council, he became the NRA’s chief lobbyist. By that point, a contentious rift had developed among members who supported the group’s original mission and those who believed it should shift focus to unrestrained weapons access and militant gun control opposition. Carter was an ardent supporter of the latter. “We can win it on a simple concept,” he wrote in a letter to NRA leadership. “No compromise. No gun legislation.”

In 1977, Carter and his supporters made their move, seizing control of the NRA at a dramatic annual meeting in Ohio. The former Border Patrol chief’s militancy became the ethos of the NRA. It wasn’t until 1981 that his personal relationship to firearms was fully illuminated, when the New York Times reported that the NRA pioneer was convicted of murdering a Mexican boy 50 years prior. The victim was 15-year-old Ramón Casiano. In 1931, a 17-year-old Carter confronted Casiano and his friends while carrying a shotgun. Carter’s mother suspected the boys might have information about the theft of the family’s car. Carter ordered them to come with him for questioning. The boys refused. Casiano pulled out a pocketknife. Carter asked Casiano if he believed he wouldn’t shoot. Casiano said he wouldn’t. Carter pulled the trigger. Though he claimed self-defense, Carter was convicted of murder and sentenced to three years. The case was vacated two years later, after a court ruled that the jury had been given improper instructions.

PLCAA was arguably LaPierre’s greatest tribute to Carter’s legacy, a historic piece of legislation resulting from years of heavy lobbying.

Carter died in 1991, but his legacy lived on. That same year, Wayne LaPierre assumed the role of executive vice president of the NRA. LaPierre was firmly in Carter’s camp during the NRA’s 1977 leadership coup and later took over his old job as the organization’s chief lobbyist. Two days after Carter’s passing, LaPierre eulogized his predecessor as “our champion and fiercest warrior.” PLCAA was arguably LaPierre’s greatest tribute to Carter’s legacy, a historic piece of legislation resulting from years of heavy lobbying. LaPierre, by then the NRA’s chief executive, told the New York Times that it was the most significant victory for the gun lobby in nearly 50 years.

In the mid-2000s, as violence in Mexico surged, LaPierre developed a punchy line for deflecting criticisms that U.S. gun policy might have some relationship to the violence, particularly when those criticisms suggested a reinstatement of an assault weapons ban: “Our rights are not what’s wrong.”

Arturo Sarukhán was the Mexican ambassador to the U.S. at the time, serving under then-President Felipe Calderón. “When I arrived as ambassador, I sent Wayne LaPierre a letter saying, ‘Look, I’m not here to challenge the Second Amendment. That’s a sovereign decision of the American people. It’s in the Constitution in its amendments, but what I am convinced of is that the Second Amendment wasn’t written to allow Americans to buy armor piercing ammo to hunt deer or to illicitly traffic guns across an international border. So why don’t we talk?’” Sarukhán recalled in an interview with The Intercept. LaPierre never replied. “We called this office three times to follow up on the letter,” Sarukhán said. “They didn’t even pick up the call.”

In 2012, a paper published by researchers at New York University and the University of Massachusetts Amherst found that the expiration of the assault weapons ban contributed to “substantial increases in homicides” in Mexican border communities. The following year, the University of San Diego’s Trans-Border Institute estimated that without gun trafficking to Mexico, roughly 47 percent of federally licensed firearms dealers would “cease to exist.” For Sarukhán, the relationship between the weapons, the violence, and the money was obvious. “The sunset clause of the assault weapons ban coincides with the exponential growth of seizures of assault weapons and semi-automatic weapons in Mexico,” he said. “There’s a direct correlation.” Doing something about the issue, then and now, was another matter. “We all know that there won’t be an assault weapons ban anytime soon in Washington,” Sarukhán said. The former Mexican ambassador is likely right. Though Biden renewed his calls for an assault weapons ban in the spring, the prospect of Congress passing significant gun control legislation is considered unlikely.


The U.S. Is Organizing a $5 Million Gun Sale to Mexican Forces Accused of Murder and Kidnapping

Sarukhán is a staunch critic of the AMLO administration’s security policies. “López Obrador’s ‘hugs and bullets’ are creating more homicides than Calderón’s militarization of the war against drugs,” he said. Sarukhán argues that by pushing away U.S. involvement in shared problems, Mexico only hurts itself. Still, his criticisms of the administration’s broader posture aside, Sarukhán supports the government’s lawsuit. He pursued a similar project as ambassador, he said, albeit focused on gun shops rather manufacturers, but ran out of time before the changing of administrations. “I think the Mexican government does right in doing this,” he said. “It’s an important shot across the bow.”

While the national gun conversation tends to focus on issues within U.S. borders, a report to Congress in February revealed significant holes in the government’s system for stopping the flow of weapons south. The Government Accountability Office told lawmakers that the top U.S. federal agencies tasked with stopping illicit cross-border trafficking — the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF; Immigration and Customs Enforcement’s Homeland Security Investigations; and the State Department — routinely fail to communicate with one another or monitor the efficacy of their efforts.

“None of the agencies have fully developed performance measures for their efforts to disrupt firearms trafficking to Mexico, and thus they have limited ability to assess progress,” the report said.

Keith Heinzerling had an up-close look at U.S. efforts to curb the flow of guns south, serving two tours as the ATF’s country attaché in Mexico before retiring in 2016. While he pushed back on some of the depictions of the impact U.S. gun policy has had on the country — Heinzerling believes the expiration of the assault weapons ban had little relationship to violence, for example, and he suspects Mexico’s lawsuit is little more than “smoke and mirrors” — the retired ATF agent acknowledged that there are indeed major issues impeding the interdiction of southbound weapons.

In Mexico, U.S. federal agents lack the sweeping authorities they enjoy stateside and as a result are encouraged to work very closely with ostensibly vetted partners. “When you work hand in hand, you’re worried about issues of corruption and information maybe going the wrong direction,” Heinzerling told The Intercept. As an example, he pointed to the case of Genaro García Luna, the former Mexican public security chief once considered Washington’s greatest drug war ally who is now facing federal drug trafficking charges in New York.

Some of the biggest problems, however, are not on the border, Heinzerling argued, but in Washington. In a move straight out of the Harlon Carter playbook, the NRA has waged a multidecade campaign wherever possible to undermine the ATF, which LaPierre once referred to as “jack-booted government thugs.” As a byproduct of those efforts, the agency hasn’t had a confirmed director since 2013. Biden’s pick to head the organization, David Chipman, a 25-year ATF veteran who worked as policy adviser for gun control groups, faced heated Republican pushback in a Senate hearing earlier this year, with Iowa Sen. Charles Grassley equating his appointment to putting “antifa in charge of the Portland Police Department.” According to Heinzerling, the absence of leadership has had a devastating impact on morale that trickles into important missions like cross-border weapons trafficking.

“It’s a political animal — the NRA,” he said. “All the people in ATF want to do the right thing, believe me, but we can’t even get a director confirmed because it’s all politics. It’s insane.”

FILE - In this Jan. 25, 2011, file photo, a cache of seized weapons that were to be smuggled into Mexico is displayed in Phoenix. Among the thousands of immigrants who have been coming across the U.S.-Mexico border in recent months, many are seeking to escape gang and drug violence raging in their homelands. The weapon of choice used to intimidate them is often an American-made gun. Gun-control advocates and some experts say the very violence that immigrants are fleeing is carried out by American guns that are smuggled over the border. (AP Photo/Matt York, File)

A cache of seized weapons that were to be smuggled into Mexico is displayed in Phoenix, on Jan 25, 2011.

Photo: Matt York/AP

The Never-Ending Arms Race

Ieva Jusionyte, an associate professor of international security and anthropology at Brown University, has spent years studying gun trafficking to Mexico at the ground level, spending her days with Mexican purchasers of illegal U.S.-made weapons, observing Mexican government gun buyback programs in action, and interviewing rank-and-file members of Mexican organized crime for a forthcoming book.

Attempts to understand the U.S. and Mexico strictly as two separate countries with their own separate laws obscures the ways in which those laws inform conditions on the ground, she argued. “This is a regional political economy of violence where different laws on both sides create opportunities for various criminal activities that increase violence,” Jusionyte told The Intercept. Rising violence, she added, creates economic opportunities for U.S. gun companies. “Insecurity in Latin America — in Central America, in Mexico — is a big market for U.S. gunmakers because they equip both sides,” Jusionyte said. “They sell the guns to the police forces and security forces and then they allow their guns to illegally supply those organized crime groups that security forces then fight against. So it’s a big win for gunmakers.”

Jusionyte’s observation points to one of the great ironies of Mexico’s lawsuit: While one arm of the Mexican government is supposedly attempting to bankrupt the U.S. gun industry, another is feeding it millions of dollars a year.

“This is a regional political economy of violence where different laws on both sides create opportunities for various criminal activities that increase violence.”

Over the past decade and half, the Mexican military has become one of the biggest government purchasers of U.S.-made weapons in the world. From 2015 and 2017 alone, legal U.S. guns and ammo exports to Mexico surged to nearly $123 million, more than a dozen times what it was from 2002 to 2004, making the Mexican military the largest Latin American buyer of U.S.-made arms by far. As sales have skyrocketed, some U.S. lawmakers have grown increasingly concerned at the repeated evidence of U.S.-made guns flowing to Mexican security forces with abhorrent human rights records. Scores of Colt rifles, for example, were sent to municipal police in the city of Iguala both before and after the police there were implicated in the 2014 disappearance of 43 college students, one of the most infamous crimes in Mexican history.

The effect Mexico’s lawsuit might have on the multimillion-dollar exchanges between the military and U.S. gun companies remains to be seen. Three of the companies currently being sued by Mexico —  Colt, Glock, and Barrett — have sold weapons to the Mexican military in the past. So far, Celorio said, his office has received “no pushback at all” from its military colleagues.

Despite its stated commitment to demilitarizing Mexico, the AMLO administration is currently presiding over the largest deployment of troops in the streets in recent history. The continued reliance on the military in public security, and in particular for U.S.-backed migration crackdowns, has drawn fierce criticism from human rights advocates. Celorio is attuned to the critiques. To draw down the military’s presence in the streets, he argued, “the criminal gangs, their firepower has to decrease.”

“There’s a spiral of violence that is escalating because of the illicit traffic of guns,” Celorio said. “We always talk about the wholesale of guns, the big shipments, and how Saudi Arabia shouldn’t divert their weapons to Yemen,” he said. “But what about what is happening in the stores in Laredo?”

Celorio said those who might doubt the sincerity of Mexico’s current efforts are mistaken. “We’re doing this for real,” he said. The litigation, he argued, is evidence of a changing Mexico. “It’s a Mexico that believes in itself, saying, ‘We’re no more, we’re no less than any other country, but in the equality of rights, we’re Mexico, and if we need to defend ourselves, we’ll do it,’” he said. “That’s a Mexico that is transforming.”

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