Mexico has just scored an unprecedented legal victory. In a historic decision, the U.S. Court of Appeals for the First Circuit ruled in favor of the Mexican government and agreed that it does have sufficient grounds to sue arms industry giants in the United States, after a Massachusetts court threw out the lawsuit in September 2022.
Mexico claims that some of the biggest names in the arms industry have profited for years from the illegal arms trade, which feeds on negligent business practices and the insatiable hunger of drug cartels to increase their firepower. Mexico estimates the damage at $15 billion. Manufacturers argue that they are protected by the Protection of Lawful Commerce in Arms Act (PLCAA), a law passed during the George W. Bush administration that shields the arms industry from lawsuits arising from misuse of their products.
In this interview with EL PAÍS, Alejandro Celorio — the lawyer who is leading Mexico’s legal strategy in the lawsuit — discusses the importance of this week’s ruling, which overturned the arms industry’s immunity argument for the first time, and talks about the legal battles on the horizon. “The arms industry has blood on its hands,” the legal consultant for Mexico’s Ministry of Foreign Affairs tells EL PAÍS. “They know that their products are in our country and they have done nothing to remedy or prevent it.”
Question. What does this ruling mean for Mexico?
Answer. The first legal implication is that we have overcome the immunity law for the first time. I’m not sure, but I think there is no precedent for a ruling like this in an appeals court. It’s historic. We are talking about a foreign government. And we have overcome this obstacle thanks to an exception that establishes, in basic terms, that Mexico will have the opportunity to prove that the defendant companies aid and abet arms trafficking. That is huge, because it means that other countries will surely be able to analyze whether this decision by the Appeals for the First Circuit gives them a window to sue, such as Jamaica, Canada or other countries that are suffering from the same problem.
The most direct and concrete implication is that it will advance our litigation. Not only will we have the opportunity to present our evidence, we will be able to ask the defendant companies to share their evidence with us. In another case against the tobacco companies, for example, we obtained the emails of executives who, knowing that they were causing health damage, continued to insist on portraying tobacco use as fashionable. That’s the kind of information we’re going to get in litigation. It could be a gold mine.
Q. Why did the court rule in Mexico’s favor?
A. The trial judge said, in general terms, that no matter how sympathetic he was to Mexico’s cause, he had to dismiss the lawsuit because there is an immunities law that prohibits the lawsuit from going ahead. The issue was PLCAA. It was not a question of whether Mexico could sue or whether the court was the right avenue. When we filed our appellate brief, we did not talk about anything else, other than PLCAA and why it does not apply. We pointed out that it has no extraterritorial effect, that there is a direct violation of the machine gun export ban, and that the defendant companies violate state and federal laws.
The Court of Appeals took all that information and when both sides presented their arguments last August 28, the three judges questioned representatives of the gun manufacturers, including one of then-president Donald Trump’s lawyers, about how much they knew about direct sales, how their trade works, who buys from them and where the guns go. That hearing was key. We did our job in presenting the case, but I think the judges’ interest in scratching a bit further and the defendant companies’ inability to disassociate themselves [from gun trafficking] weighed more heavily. They said that many people participate in the chain of production and damage in Mexico. And the judges replied that this has nothing to do with civil damages. It does not matter whether one person or a thousand people are involved, as long as there is a causal link, there is liability.
This is very important because Mexico has set a precedent. When there are other cases of people or companies wanting to ignore their civil liability, on the grounds that someone else or a criminal group also intervened, they will not be able to do it so easily. If you did something negligent, then you are liable. That’s why this is so historic and why it took so long. It involved a very complex analysis.
Q. What are the next legal battles?
A. It is possible that the defendant companies may ask the appeals court for review. That means that all the judges of the First Circuit review the decision of the three judges who heard our case and decide whether to leave the decision as final or reverse it. That is the first obstacle.
A second scenario is that the defendants appeal to the United States Supreme Court. They have 90 days to do so. It is important to note that the Supreme Court does not take all cases and it is not certain that it will take this one. The Mexican government is prepared for this scenario.
When the appeals court’s decision is final, the case would return to the Boston court. But we expect many reactions from the defendants, they are going to put in more resources. It’s going to be a long process, a race of attrition. This is just the first round.
Q. Have you noticed any changes in the gun manufacturers’ practices since the case or are they still a crucial link in this chain of violence?
A. They haven’t changed anything. What has changed is the United States government. We see the United States taking more action to stop and prevent arms trafficking. In 2022, a law was approved for the first time to punish arms trafficking. Before it was not a crime. So, yes there have been changes, perhaps they are lucky coincidences, but it seems to me that a lot of it has to do with Mexico’s efforts in this lawsuit and in other avenues.
Q. Would you say that the U.S. arms industry has blood on its hands?
A. Without a doubt. They have blood on their hands. Not directly, because we cannot accuse them without evidence of colluding with organized crime. That is why this civil lawsuit is for negligence. They are trading a product designed to kill, injure and destroy. They know that their products are in Mexico and they have done nothing to remedy or prevent it. There are human rights and business principles that say that companies have a duty to assess risk and mitigate it. They are well aware of the violence we are suffering.
Q. What will Mexico demand from the gun manufacturers if it wins?
A. Three things. The first is that they immediately cease their negligent business practices: that they stop selling to frontmen, that they make the necessary changes to stop facilitating trafficking. The second is short and medium-term measures, such as changes in their distribution decisions, self-discipline, monitoring of who is selling their products and to whom. The third point is, as in any civil suit for damages, to seek compensation. There will be a stage in the trial to quantify the damage. We estimate that the Mexican government has suffered damages amounting to $15 billion. Why so much? Because there are studies that say that Mexico spends between 5% and 20% of its GDP on addressing violence. Mexico would not suffer from gun violence if we had fewer weapons and these weapons come from illicit trafficking facilitated by the negligence of these companies.
Q. Alicia Bárcena was named Mexico’s Secretary of Foreign Affairs last year. What has changed since her appointment?
A. The legal strategy continues in its same terms. She has given additional weight to what we are doing. She speaks of a consistent, congruent foreign policy, of Mexico’s tradition on disarmament issues and against arms trafficking. She has asked us to better explain what the case is about, to bring the litigation closer to people and tell them why it is important. She has also helped us take the case to other forums. Under her management, a request for an advisory opinion was presented to the Inter-American Court of Human Rights, which helped us a lot. Next week there is another forum in England on arms trade. She has asked us to take what we are doing to more places. Her arrival was a positive addition to what was already being done.
Q. It is the last year of the Mexican government’s six-year term and there are elections in June. Are you concerned that this could affect the lawsuit?
A. I’m not worried. In terms of budget, we are covered for this year and we will request resources for 2025. This must continue. The suggestion to the next administration will be that Mexico does not step down from this effort. It would be giving up, but it will be up to the next government.
As for any changes that may occur in the Foreign Ministry, we are replaceable. If they ask me for my position, I will leave it to someone else who does the same or better than me. This is an effort of the Mexican state. And it will take time because it will surely take two or three administrations until we have a final ruling and compensation for damages.
Q. Could the U.S. elections and a potential return of Trump to the presidency influence the case?
A. I hope not. Judicial decisions are made based on the law, but in the end judges are human beings. We have been very insistent and careful in clarifying that this is not a lawsuit against the Second Amendment [the right to bear arms in the United States]. Eventually, the campaign of the pre-candidate Trump, if he is a [presidential] candidate, will surely put out a hashtag saying Mexico wants our weapons and the issue will become politicized. That’s fine. It’s their game, there’s no concern. We already have it budgeted.
If we come under attack for what we are doing, we will say that we are appealing to your courts, in your language and under your rules, and that the appeals court said we can sue. Every time someone points out that Mexico wants to take guns away from Americans, we will respond that we want to take them away from the cartels, which are powerful and trafficking fentanyl and other substances. And we will tell them that, instead of complaining, they should help us.
U.S. citizens have to realize that we are fighting for the same thing. We are not messing with their right to bear arms, what we want is for criminals to stop doing it. Even the National Rifle Association and others should support us. They don’t do it due to issues concerning profit and so forth. But Mexico has won the narrative.
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