{"id":108123,"date":"2025-03-07T06:10:58","date_gmt":"2025-03-07T12:10:58","guid":{"rendered":"https:\/\/milesfortis.com\/?p=108123"},"modified":"2025-03-07T06:10:58","modified_gmt":"2025-03-07T12:10:58","slug":"108123","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=108123","title":{"rendered":""},"content":{"rendered":"

Mexico\u2019s Frivolous Lawsuit: What SCOTUS Got Wrong About the Firearm Industry<\/a><\/p>\n

Predicting how the U.S. Supreme Court might rule on a particular petition is risky business. Most legal analyses of the\u00a0Smith & Wesson Brands, Inc., et al. v. Estados Unidos Mexicanos<\/em>\u00a0hearing this week are\u00a0leaning in one direction<\/strong><\/a>\u00a0\u2013 that the Court is likely to reject Mexico\u2019s claims and ultimately dismiss their frivolous $10 billion lawsuit against U.S. firearm manufacturers.<\/p>\n

After all, there\u2019s no evidence to support their claim. Mexico can\u2019t 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 \u201cproximate cause,\u201d \u201cforeseeability\u201d and \u201caiding and abetting,\u201d 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\u2019s the part that gives common sense and sanity a fighting chance in this case.<\/p>\n

Some of the justices\u2019 questions demonstrated that they did not all seem to fully understand how the industry legally conducts business. \u00a0Here are a couple of examples.<\/p>\n

<\/p>\n

Straw Purchase Vs. Straw Seller<\/strong><\/h4>\n

Justice Sonia Sotomayer asked a line of questions about illegal straw purchasers of firearms that got flipped on its head. The illegal\u00a0straw purchase<\/strong><\/a>\u00a0of a firearm is a crime by the individual who lies to the licensed retailer on the Bureau of Alcohol, Tobacco, Firearms and Explosives\u2019 (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.<\/p>\n

Justice Sotomayor\u00a0said<\/a><\/strong>, \u201cI think their complaint is saying that the violation is selling to straw purchasers, and I think the risk in selling to a straw purchaser \u2013 and that\u2019s the known risk of that violation \u2013 is that that straw purchaser is giving or selling the gun to someone who can\u2019t possess it because the likelihood is that they\u2019re going to use that gun illegally.\u201d<\/p>\n

Later, however, Justice Sotomayor wasn\u2019t so much interested in the illegal activity of a straw purchaser. She put the onus on the licensed retailer.<\/p>\n

\u201c\u2026 we know that a straw seller is going to sell to someone who is going to use the gun illegally because, if they weren\u2019t, they wouldn\u2019t use the straw purchaser,\u201d\u00a0Justice Sotomayor said<\/strong><\/a>. \u201cAnd 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.\u201d<\/p>\n

That\u2019s wrong. An illegal straw purchase is a crime committed by the individual lying on the Form 4473. The retailer is trusting they aren\u2019t lying on the form and verifying with the FBI\u2019s National Instant Criminal Background Check System (NICS) that the individual isn\u2019t prohibited from possessing a firearm.<\/p>\n

If a seller is knowingly selling to an individual lying on the form, that retailer is committing a crime. That\u2019s called conspiracy. The firearm industry wants those individuals to lose their licenses and face justice. That, however, is an exceedingly rare exception.<\/p>\n

Obliterated Serial Numbers<\/strong><\/h4>\n

Justices Elena Kagan and Sotomayor raised questions about obliterated serial numbers on firearms, incorrectly claiming that they are easy to obliterate.<\/p>\n

Justice Kagan\u00a0asked<\/strong><\/a>, \u201cis 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.\u201d<\/p>\n

Later, Justice Sotomayor\u00a0said of firearm manufacturers<\/a><\/strong>, \u201cThey\u2019re making erasable serial numbers, which obviously are attractive to criminals because every criminal would like to erase the serial number if they can.\u201d<\/p>\n

The assumption by these two justices is patently false. Firearm manufactures permanently engrave, cast or stamp a serial number on a firearm\u2019s frame or receiver. That\u2019s done according to precise ATF regulations so the serial number cannot be \u201ceasily erased\u201d (obliterated); precisely so firearms can be traced. It is a crime to make a firearm that is not marked (serialized) according to ATF\u2019s regulation and it is a serious crime to obliterate a serial number. ATF\u2019s\u00a0tracing website<\/strong><\/a>\u00a0devotes information to explain the fact that criminals \u201cobliterate\u201d 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.<\/p>\n

Manufacturers Access Firearm Trace Data<\/strong><\/h4>\n

Mexico\u2019s lawyer, Catherine Stetson,\u00a0told the justices<\/strong><\/a>\u00a0that U.S. firearm manufacturers should be held responsible for Mexico\u2019s $10 billion claim because, in her words, they know where the guns are going to \u201crogue\u201d firearm retailers through firearm trace data.<\/p>\n

That\u2019s false. When law enforcement\u00a0traces a firearm<\/strong><\/a>, the firearm retailer doesn\u2019t know \u2013 and isn\u2019t told \u2013 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.<\/p>\n

The same is true for distributors and manufacturers. They aren\u2019t 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.<\/p>\n

Additionally, the ATF has\u00a0repeatedly stated<\/strong><\/a>\u00a0that just because a firearm is traced, it doesn\u2019t mean that any federal firearms licensee in the multi-step lawful chain of commerce is a bad actor. The Washington, D.C., Metro Police\u00a0were contacted<\/a><\/strong>\u00a0to run firearm traces after they were the only federal firearms licensee in the District of Columbia. That didn\u2019t mean the police department did anything illegal. It meant only that the ATF was tracing a firearm.<\/p>\n

\u2018Rogue\u2019 Retailers<\/strong><\/h4>\n

Noel Francisco, representing the firearm manufacturers, urged the justices several times to read a 2010 Washington Post article cited in Mexico\u2019s complaint headlined, \u201cMexican cartels wielding American weapons.\u201d That article examined illegal straw purchases and how guns were being illegally smuggled to Mexico.<\/p>\n

Stetson, Mexico\u2019s lawyer, noted in her argument that \u201cThere are a number of dealers that we do know are responsible for selling a great number of crime guns into Mexico. There\u2019s the Washington Post article that the complaint mentions. Those \u2013 that names eight \u2013 eight or 10 different dealers by name, most of which are still very actively in the business.\u201d<\/p>\n

The allegation is that \u201crogue\u201d gun dealers are known to U.S. firearm manufacturers and therefore, those manufacturers should be accountable. But that\u2019s not all the article exposes.<\/p>\n

Justices Kagan, Alito and Barrett pressed for specific names of \u201crogue\u201d firearm retailers. The only licensed retailer mentioned by name during the argument was Lone Wolf Trading Company, an Arizona-based retailer.<\/p>\n

It also talks about the ATF\u2019s Operation Gunrunner \u2013 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.<\/p>\n

Peter Forcelli helped blow the whistle on Fast & Furious and published a book of the ordeal, called \u201cThe Deadly Path<\/strong><\/a>.\u201d He recounted how firearm retailers were the leading edge of information for ATF when it came to suspected illegal straw purchases. Forcelli\u00a0posted on LinkedIn<\/a><\/strong>\u00a0his frustrations after hearing how firearm retailers were misrepresented in front of the Supreme Court justices.<\/p>\n

\u201cAs it turns out, Lone Wolf Trading Company was one of the most cooperative gun dealers that my agents dealt with in Phoenix,\u201d\u00a0Forcelli wrote<\/strong><\/a>. \u201cFor 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.\u201d<\/p>\n

Forcelli added<\/strong><\/a>, \u201cAt 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 \u2018Operation Fast and Furious.\u2019 Think about that for a second. They were ORDERED by several members of my former agency \u2013 the agency that regulates the gun industry (to include command staff) and by federal prosecutors (AUSA Emory Hurley) \u2013 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\u2019t matter to them.\u201d<\/p>\n

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\u2019s also why the justices have clerks to run down the facts of the information to aid in forming their opinions. That\u2019s one the firearm industry is eagerly awaiting by the end of June.<\/p>\n","protected":false},"excerpt":{"rendered":"

Mexico\u2019s Frivolous Lawsuit: What SCOTUS Got Wrong About the Firearm Industry Predicting how the U.S. Supreme Court might rule on a particular petition is risky business. Most legal analyses of the\u00a0Smith & Wesson Brands, Inc., et al. v. Estados Unidos Mexicanos\u00a0hearing this week are\u00a0leaning in one direction\u00a0\u2013 that the Court is likely to reject Mexico\u2019s … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15,23],"tags":[],"class_list":["post-108123","post","type-post","status-publish","format-standard","hentry","category-business","category-courts"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/108123","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=108123"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/108123\/revisions"}],"predecessor-version":[{"id":108124,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/108123\/revisions\/108124"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=108123"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=108123"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=108123"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}