By Howard Fischer
Mail | X: @azcapmedia

A federal judge has given the go-ahead to let the Mexican government sue five Arizona gun dealers over claims they are responsible for violence in that country.

In an extensive ruling, U.S. District Court Judge Rosemary Marquez rejected arguments by attorneys for the dealers that they were engaged in lawful commerce in Arizona and there was no evidence the weapons they sold ended up being used by cartel members. She said there is enough in the complaint to let a jury decide if the dealers sold firearms despite what could be considered “red flags” that these were merely “straw purchases” designed to get the guns into the hands of those who could not legally purchase them.

Marquez also noted Mexico claims to have evidence that weapons seized in Mexico — where their possession and ownership is severely restricted — can be traced back to dealers who are being sued, three in Tucson, one in Yuma and one in Phoenix.

Most notably, the judge rejected arguments by the dealers that their activities are protected by the U.S. Constitution. She said that ignores the fact there are federal laws here dealing not only with the exporting of weapons but also statutes that outlaw sales made in ways designed to conceal that a weapon ultimately will wind up in the hands of someone who should not have it.

“The Second Amendment does not protect unlawful firearm sales,” she wrote.

And Marquez was no more impressed by claims by the dealers they are protected by a state law specifically designed to shield gun manufacturers, distributors, dealers and importers of firearms from lawsuits even if they are misused. She said the law “is intended to protect from liability businesses engaged in the lawful, rather than the unlawful, sale of firearms.”

The new ruling does not mean Mexico will win its lawsuit. Instead it just clears the way for Mexico to present evidence to a jury that the gun shops knew or should have known the weapons they were selling were being illegally exported.

As to legal relief, even attorneys for Mexico appear to concede that it is unlikely they would ever be able to recover the $238 billion in claimed damages just in one year even if they eventually win the case filed two years ago. But they said a favorable decision would reduce the risk of harm to some extent.

There was no immediate response from the lawyers representing the dealers.

But in a prepared statement, Jonathan Lowy, an attorney for Mexico, called the ruling “a huge step forward in holding the gun industry accountable for its contribution to gun violence, and in stopping the floor of trafficked guns to the cartels.” He also is the president and founder of Global Action on Gun Violence, which seeks to deal with the issue through litigation.

At the heart of the case are claims by Mexico it has evidence the five stores were engaged in unlawful sales.

On example cited in the lawsuit is that SnG Tactical in Tucson made a cash sale to an individual of six AK-47 rifles, including five of the same model, over the course of approximately one week in September 2018. It also says the same store sold more than $80,000 in firearms to another individual, including 11 over a two-week period in March 2019, many paid for in cash.
There also are claims against the other stores.

And Mexico says during the past five years, each of the Arizona stores has been among the 10 deals with the most crime guns recovered in Mexico and traced back to a dealership in Arizona. And it estimates each of the five stores is involved in “trafficking” between 55 and 822 guns to Mexico annually.

In seeking to have the case dismissed, lawyers for the gun shops said there is no evidence that any weapon they sold was used by Mexican cartels in commission of a crime. In fact, they said, the allegations never even claim any of the dealers sell their firearms to cartels.

“Instead, Mexico’s theory is that through a series of unspecified events, third-party criminals acquire, sell, and smuggle the firearms originally sold by defendants into Mexico, where they are eventually used by drug cartels to commit crimes,” the dealers argue. And it is these “intervening and superseding acts” that may cause the financial harms Mexico says it suffers from fighting cartels, to the tune of $238 billion, not anything the dealers did.

The lawyers also said even if the dealers had sold guns to Mexican citizens, there is no duty under U.S. law to protect foreign governments from harm.
But Marquez said there is enough in the complaint to let all that be decided by a jury.

“The complaint plausibly alleges that, as a result of red flags including straw sales, bulk sales, cash sales, and repeat sales of military-style weapons favored by Mexico cartels, defendants knew or should have known that firearms they sold would ultimately be provided to and used by cartel members for unlawful purposes,” the judge wrote.

What the dealers hoped would protect them — aside from those Second Amendment claims — is the federal Protection of Lawful Commerce in Arms Act.

Approved by Congress in 2005 at the behest of the gun industry, it is designed to protect firearms manufacturers and gun dealers from any liability when crimes have been committed with their products.

Marquez did rule that the law — and its immunity — can apply to crimes committed outside of the United States. But she said that doesn’t end the discussion, pointing out there are several exceptions from that immunity.

One involves any actions “in which a manufacturer of seller of a qualified product knowingly violated a state or federal statutes applicable to the sale or marketing of the product, and the violation as a proximate cause of the harm for which relief is sought.”

Here, the judge said, Mexico is alleging the gun shops aided and abetted purchasers who were making false statements on the federal form required when a licensed dealer sells a gun. That information includes identifying information on the buyer and an affidavit that the purchaser is eligible to have a firearm.

And then there’s the link between the actions of the gun dealers and the harms Mexico says it has incurred.

“Specifically, the complaint alleges that defendants know military-style assault weapons are preferred by violent cartels in Mexico and routinely trafficked into Mexico but that, despite this knowledge, defendants profit by continuing to engage in straw sales, multiple sales, and repeat sales to buyers who are in essence agents of the cartels, with such conduct foreseeable resulting in harm from gun violence in Mexico,” the judge wrote.

Marquez, however, said she wasn’t buying all of the legal theories advanced by Mexico.

She tossed a claim that the sales somehow violated Arizona’s Consumer Fraud Act, saying there was no evidence that any of the advertisements by the dealerships about their weapons contained misrepresentations. And she also dismissed an argument that the activities of the gun dealers fit within racketeering laws.