For the second time, a federal judge in Massachusetts has dismissed the vast majority of Mexico's lawsuit against multiple U.S. gun makers that accuses the companies of knowingly and willfully facilitating cartel violence south of the border. U.S. District Judge F. Dennis Saylor first threw out Mexico's complaint in 2022, opining that the Protection of Lawful Commerce in Arms Act precluded Mexico's lawsuit, but the litigation was reinstated by the First Circuit Court of Appeals a short time later. 

Now Saylor has once again dismissed the case against six of the seven gun makers sued by the Mexican government, ruling that the plaintiff has been "unable to muster sufficient proof to establish a sufficient relationship between the claimed injuries and the business transactions of any of the six defendants in Massachusetts."

The core question for jurisdictional purposes is whether Mexico’s claims against the six moving defendants “arise” from their business transactions in Massachusetts. See Mass. Gen.Laws ch. 223A, § 3(a). As to those defendants, the connection of this matter to Massachusetts is gossamer-thin at best. The government of Mexico is obviously not a citizen of Massachusetts. None of the six moving defendants is incorporated in Massachusetts, and none has a principal place of business in Massachusetts. There is no evidence that any of them have a manufacturing facility, or even a sales office, in Massachusetts. None of the alleged injuries occurred in Massachusetts. No Massachusetts citizen is alleged to have suffered any injury. And plaintiffhas not identified any specific firearm, or set of firearms, that was sold in Massachusetts and caused injury in Mexico.

Furthermore—and despite the generous use of the word “defendants” throughout—the complaint does not actually allege the existence of a joint enterprise, joint venture, or civil conspiracy among the various defendants. There is no question, therefore, that personal jurisdiction must be proved separately as to each of the six moving defendants.

At its core, plaintiff’s jurisdictional theory is based on statistical probabilities. Its reasoning may be characterized as follows: (1) each of the six moving defendants sold firearms to distributors and retailers in each of the 50 states; (2) each of the six defendants sold some (undetermined) number of firearms to Massachusetts-based distributors or retailers; (3) some (undetermined) number of the firearms that were sold by each of the six defendants nationwide were illegally trafficked to Mexico; (4) some (undetermined) number of the firearms that were trafficked to Mexico caused injury there; and therefore (5) at least some of the firearms sold by each of the six defendants to Massachusetts entities must have caused injuries in Mexico.

Mexico's legal team, which includes former Brady Campaign attorney Jonathan Lowy (who now heads up an outfit called Global Action on Gun Violence), brought in an economist to try to estimate the number of guns that were originally purchased in Massachusetts but were trafficked to Mexico. The judge, however, wasn't persuaded by what she found. 

To do so, she relied upon two principal datasets: a set that recorded the manufacturer of certain firearms recovered in Mexico between 2010 and 2021, and a “trace and recovery” dataset created by the Bureau of Alcohol, Tobacco and Firearms (“ATF”) concerning firearms recovered in Mexico between 1989 and 2001. She then used that data to estimate the number of firearms that she believes were likely trafficked into Mexico after a Massachusetts sale over the last ten years. As explained below, however, that report is problematic in multiple respects—beginning with the fact that Congress has prohibited the use of the ATF data in any civil action, and thus a critical foundation of her opinion must be disregarded. Furthermore, her opinion stops short o festimating the number of firearms manufactured by each defendant that actually caused an injury in Mexico—a critical link to connect defendants’ business in Massachusetts to plaintiff’s claims. Under the circumstances, her opinion is not sufficient to prove the necessary jurisdictional nexus.

That's embarrassing for the gun control activists, or at least it would be if it didn't give them a new talking point about Congress tying the hands of "gun safety advocates" when it comes to using ATF data. As far as the Mexican government is concerned, however, Saylor's ruling is a total loss. The only remaining defendants are Smith & Wesson, which was headquartered in Massachusetts during the time period in question, as well as a wholesaler who wasn't a part of this particular request to dismiss the case. 

While Mexico's lawsuit, which seeks $10 billion in damages from gun makers, isn't completely dead, Saylor's ruling is a big step in that direction. The final blow to the litigation could come from the Supreme Court, which is set to consider the gun companies' appeal of the First Circuit ruling that reinstated the lawsuit in its September 30th conference. As the gun makers argued in their cert petition:

To be clear, Mexico’s complaint does not include any groundbreaking factual revelations, nor does it uncover any secret dealings between the cartels and America’s firearms companies. Instead, Mexico’s suit challenges how the American firearms industry has openly operated in broad daylight for years. It faults the defendants for producing common firearms like the AR-15; for allowing their products to hold more than ten rounds; for failing to restrict the purchase of firearms by regular citizens; and for refusing to go beyond what American law already requires for the safe production and sale of firearms.In Mexico’s eyes, continuing these lawful practices amounts to aiding and abetting the cartels. Accordingto Mexico, American firearms companies are liable because they have refused to adopt policies to curtail the supply of firearms smuggled south—such as making only “sporting rifles,” or cabining sales to those with a “legitimate need” for a firearm (as defined by Mexico).

This lawsuit is basically an attempt to allow the Mexican government to impose its own preferred gun control policies on the U.S. firearms industry by blaming gun makers for cartel violence. SCOTUS should grant cert and dismiss the case altogether, but we won't know if the Court will grant cert for another few months.