Mexico’s Frivolous Lawsuit: What SCOTUS Got Wrong About the Firearm Industry

Opinion
By Larry Keane

Predicting how the U.S. Supreme Court might rule on a particular petition is risky business.

Most legal analyses of the Smith & Wesson Brands, Inc., et al. v. Estados Unidos Mexicanos hearing this week are leaning in one direction – that the Court is likely to reject Mexico’s claims and ultimately dismiss their frivolous $10 billion lawsuit against U.S. firearm manufacturers.

After all, there’s no evidence to support their claim. Mexico can’t show the court how a lawfully-made and lawfully-sold gun that is illegally straw purchased, illegally smuggled across an international border, illegally possessed in Mexico and criminally misused by narco-terrorist drug cartels is the responsibility of U.S. gun makers. There was discussion among the justices and the lawyers about legal concepts and terms like “proximate cause,” “foreseeability” and “aiding and abetting,” but the simple understanding is that the justices seemed skeptical that they should accept that U.S. firearm manufacturers should be on the hook legally because they might foresee that someone, somewhere and years from when a gun is made, could criminally misuse that gun to cause harm that requires the government of Mexico to spend money in response. That’s the part that gives common sense and sanity a fighting chance in this case.

Some of the justices’ questions demonstrated that they did not all seem to fully understand how the industry legally conducts business.  Here are a couple of examples.

Straw Purchase Vs. Straw Seller

Justice Sonia Sotomayer asked a line of questions about illegal straw purchasers of firearms that got flipped on its head. The illegal straw purchase of a firearm is a crime by the individual who lies to the licensed retailer on the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) background check form (ATF Form 4473), specifically the question where the purchaser attests that they are the true intended recipient of the firearm being purchased.

Justice Sotomayor said, “I think their complaint is saying that the violation is selling to straw purchasers, and I think the risk in selling to a straw purchaser – and that’s the known risk of that violation – is that that straw purchaser is giving or selling the gun to someone who can’t possess it because the likelihood is that they’re going to use that gun illegally.”

Later, however, Justice Sotomayor wasn’t so much interested in the illegal activity of a straw purchaser. She put the onus on the licensed retailer.

“… we know that a straw seller is going to sell to someone who is going to use the gun illegally because, if they weren’t, they wouldn’t use the straw purchaser,” Justice Sotomayor said. “And that illegal conduct is going to cause harm and harm like this, that the gun is going to be used in some way to injure people.”

That’s wrong. An illegal straw purchase is a crime committed by the individual lying on the Form 4473. The retailer is trusting they aren’t lying on the form and verifying with the FBI’s National Instant Criminal Background Check System (NICS) that the individual isn’t prohibited from possessing a firearm.

If a seller is knowingly selling to an individual lying on the form, that retailer is committing a crime. That’s called conspiracy. The firearm industry wants those individuals to lose their licenses and face justice. That, however, is an exceedingly rare exception.

Obliterated Serial Numbers

Justices Elena Kagan and Sotomayor raised questions about obliterated serial numbers on firearms, incorrectly claiming that they are easy to obliterate.

Justice Kagan asked, “is that we make it so that you can, you know, easily scrape off serial numbers and we construct a set of products that are obviously useful in their characteristics for cartel members.”

Later, Justice Sotomayor said of firearm manufacturers, “They’re making erasable serial numbers, which obviously are attractive to criminals because every criminal would like to erase the serial number if they can.”

The assumption by these two justices is patently false. Firearm manufactures permanently engrave, cast or stamp a serial number on a firearm’s frame or receiver. That’s done according to precise ATF regulations so the serial number cannot be “easily erased” (obliterated); precisely so firearms can be traced. It is a crime to make a firearm that is not marked (serialized) according to ATF’s regulation and it is a serious crime to obliterate a serial number. ATF’s tracing website devotes information to explain the fact that criminals “obliterate” serial numbers to avoid tracing. Even then, ATF has methods to raise or reveal an obliterated serial number that no longer appears to the naked eye.

Manufacturers Access Firearm Trace Data

Mexico’s lawyer, Catherine Stetson, told the justices that U.S. firearm manufacturers should be held responsible for Mexico’s $10 billion claim because, in her words, they know where the guns are going to “rogue” firearm retailers through firearm trace data.

That’s false. When law enforcement traces a firearm, the firearm retailer doesn’t know – and isn’t told – where that firearm is recovered, or by whom or if what crime with which it might be associated. The ATF simply contacts the retailer to find out to whom the firearm was first sold when it crossed the gun counter.

The same is true for distributors and manufacturers. They aren’t made privy to any of the firearm trace data either. The ATF provides them the make, model and serial number and they pore through their records to tell the ATF when it came into and left their possession and to whom it was transferred. Now, this is done largely rapidly through computer queries by ATF of the manufacturer and distributor.

Additionally, the ATF has repeatedly stated that just because a firearm is traced, it doesn’t mean that any federal firearms licensee in the multi-step lawful chain of commerce is a bad actor. The Washington, D.C., Metro Police were contacted to run firearm traces after they were the only federal firearms licensee in the District of Columbia. That didn’t mean the police department did anything illegal. It meant only that the ATF was tracing a firearm.

‘Rogue’ Retailers

Noel Francisco, representing the firearm manufacturers, urged the justices several times to read a 2010 Washington Post article cited in Mexico’s complaint headlined, “Mexican cartels wielding American weapons.” That article examined illegal straw purchases and how guns were being illegally smuggled to Mexico.

Stetson, Mexico’s lawyer, noted in her argument that “There are a number of dealers that we do know are responsible for selling a great number of crime guns into Mexico. There’s the Washington Post article that the complaint mentions. Those – that names eight – eight or 10 different dealers by name, most of which are still very actively in the business.”

The allegation is that “rogue” gun dealers are known to U.S. firearm manufacturers and therefore, those manufacturers should be accountable. But that’s not all the article exposes.

Justices Kagan, Alito and Barrett pressed for specific names of “rogue” firearm retailers. The only licensed retailer mentioned by name during the argument was Lone Wolf Trading Company, an Arizona-based retailer.

It also talks about the ATF’s Operation Gunrunner – the predecessor of the failed Operation Fast and Furious that exposed how ATF agents were told to allow firearms to cross into Mexico but were never tracked beyond that. The cases were made by ATF agents but never prosecuted by the U.S. Attorneys Office.

Peter Forcelli helped blow the whistle on Fast & Furious and published a book of the ordeal, called “The Deadly Path.” He recounted how firearm retailers were the leading edge of information for ATF when it came to suspected illegal straw purchases. Forcelli posted on LinkedIn his frustrations after hearing how firearm retailers were misrepresented in front of the Supreme Court justices.

“As it turns out, Lone Wolf Trading Company was one of the most cooperative gun dealers that my agents dealt with in Phoenix,” Forcelli wrote. “For years, they diligently called us when they were approached by straw purchasers. Their tips led to the seizure of hundreds of Mexico-bound firearms and countless criminal referrals for prosecution.”

Forcelli added, “At a meeting, they stated that they did not want to keep selling firearms to suspected straw purchasers that they had been calling ATF about. They were ordered to keep selling them in the interest of ‘Operation Fast and Furious.’ Think about that for a second. They were ORDERED by several members of my former agency – the agency that regulates the gun industry (to include command staff) and by federal prosecutors (AUSA Emory Hurley) – who knew full well that the body count was growing in Mexico and that each recovery likely correlated to at least one dead body. It didn’t matter to them.”

The list could go on. Counsel is limited in how much time they can spend presenting their arguments before the Supreme Court and these errors in fact happen. That’s also why the justices have clerks to run down the facts of the information to aid in forming their opinions. That’s one the firearm industry is eagerly awaiting by the end of June.

About The National Shooting Sports Foundation

NSSF is the trade association for the firearm industry. Its mission is to promote, protect and preserve hunting and shooting sports. Formed in 1961, NSSF has a membership of thousands of manufacturers, distributors, firearm retailers, shooting ranges, sportsmen’s organizations, and publishers nationwide. For more information, visit nssf.org