Arizona gun dealers ask judge to toss Mexico's lawsuit against them

Five Arizona gun dealers are asking a federal judge to dismiss a claim by the Mexican government that they are responsible for violence in that country.

In a new court filing, they say the Mexican government’s complaint fails to allege any evidence the weapons sold by the five companies — three in Tucson, one in Yuma and one in Phoenix — were used by Mexican cartels in commission of a crime. In fact, they said, the complaint doesn’t even allege 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 through their attorneys. 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.

Even if the dealers had sold guns to Mexican citizens, there is no duty under U.S. law to protect foreign governments from harm, their attorneys said.

Moreover, “This case implicates a clash of national values,” they said, as the two countries have different attitudes about private gun ownership.

“In this case, Mexico seeks to reach outside its border and punish federally licensed firearms dealers in the United States, none of whom have been accused, charged or convicted of illegally selling any firearms, due to a disagreement of values concerning access to firearms by citizens,” the attorneys for the gun dealers told U.S. District Court Judge Cindy Jorgenson in Tucson. “This court should not allow Mexico to use the federal judiciary as a tool for circumventing the U.S. domestic legislative process.”

‘Straw purchases’ alleged

The Mexican government’s lawsuit alleges each of the five retailers engaged in transactions with clear indications they were “straw sales,” meaning an individual bought on behalf of someone who otherwise would be unable to make the purchase.

The attorney for Mexico said those include bulk and repeat purchases.

The claim says that violates U.S. laws on both straw purchases and exports to Mexico.

Another indicator, according to Mexico, is the sale of assault weapons with features that distinguish them from traditional sporting rifles, such as the ability to “lay down a high volume of fire over a wide killing zone.”

“This ‘hosing down’ of an area is better suited for military combat than sporting guns,” wrote Mexico’s attorney Ryan O’Neal. The weapons also have less recoil, meaning quicker pulls of the trigger, and are designed to accept large-capacity ammunition magazines.

The weapons are legal in the United States, although that is not specifically mentioned in the lawsuit.

‘Singled out’

As to suing just the five, versus the approximately 1,500 gun dealers in Arizona, Mexico claims they “are among the worst gun-trafficking offenders in Arizona and the United States.”

The dealers counters that they have been “singled out ... to make a political statement.”

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They pointed out the lawsuit identifies about 132 firearms that were involved in alleged straw purchases from the five dealers during a five-year period. That translates to an average of five firearms per defendant per year, they said.

“As such, only a small percentage of the firearms sold by the defendants are alleged to have been trafficked to Mexico, and none are identified in the complaint as being associated with a specific violent crime, or injury to a Mexican citizen,” the dealers’ attorneys told the judge.

The original lawsuit also contains a claim that has nothing to do with weapons that wind up in Mexico but instead could be considered a broader attack on assault-style weapons — that there’s a violation of the Arizona Consumer Fraud Act.

That’s based on claims each of the retailers sold guns into the commercial market “while characterizing and promoting them as military-style weapons.” Mexico says dealers are required “to avoid inflammatory or reckless marketing tactics likely to attract and motivate criminals or other dangerous users of guns.”

The dealers, however, are telling the judge that misrepresents the nature of state laws designed to protect consumers.

“The purpose of the Consumer Fraud Act is to provide injured consumers with a remedy to counteract the disproportionate bargaining power often present in consumer transactions,” they said. That’s aimed at a false promise or misrepresentation in connection with the sale or advertising or a product, and the injury to the person to whom that promise was made, they said.

And in this case, they said, the government of Mexico is not an “injured consumer.”

Ads and cartels

There’s another flaw, the dealers said, in the consumer fraud claim.

“Nowhere in the complaint is it alleged that any member of a Mexican ‘cartel’ ever saw advertisements from the named Arizona retailers, nor is there any allegation that the advertisements caused cartel members to commit criminal acts in Mexico with any firearms obtained from the defendants,” the dealers said.

What the gun dealers also have working in their favor is a 2005 federal law known as the Protection of Lawful Commerce in Arms Act. It generally bars civil lawsuits against gun dealers based on the harm caused by the “criminal of unlawful misuse ... by a third party.”

There are exceptions when a dealer violates laws related to the sale or transfer of firearms. But the dealers’ attorneys here say that is not the case with any of the named dealers.

They also point out that it was not until last June that President Biden signed a new law making “straw purchases” illegal. Nothing in that statute shows it was meant to be retroactive, they said.

That means any alleged straw sales that happened before June 2022 can’t be used by Mexico to support racketeering claims, they said.

No date has been set for a hearing.