El Jefe, El Grito, and the Emiliano Zapata 1911.
All of those are Spanish-named Colt guns manufactured at one point in the past few decades. Translated, the first two names mean The Boss and The Shout (a tribute to Mexico’s Independence), while the third is a reference to Emiliano Zapata, a leader during the Mexican Revolution in the early 20th century who fought for the rural poor and is now regarded as a national hero.
Some of these models display Mexico’s national symbol along with the date of the nation’s independence day. Others have quotes and images engraved on the barrel attributed to Zapata. Some of them even have Aztec designs laid over the gun’s grip.
But all of them have the words “HARTFORD, CONN. U.S.A.” engraved on their barrels.
Gun designs like these, Mexico argued against Connecticut-based Colt in a 2021 lawsuit, don’t “even try to hide its pandering to the criminal market in Mexico.”
While the allegation wasn’t a novel one in international politics, its transition into a legal complaint was a first of its kind. A country’s government was formally claiming economic losses and fatal injuries caused by gun trafficking facilitated by a distributor and seven U.S. gunmakers: Colt’s Manufacturing Company, Smith & Wesson Brands, Barrett Firearms Manufacturing, Beretta U.S.A. Corp., Glock, Inc., Sturm Ruger & Co. Inc., and Century International Arms, Inc.
And Mexico isn’t just seeking monetary relief, but also court mandates that would require the gunmakers to improve monitoring of their distribution systems, ensure their guns are safe to use and finance projects focused on deterring gun trafficking.
Mexico’s accusations spilled into social media with the phrase “#NoMásTráficoDeArmas”, meaning “#NoMoreGunTraffficking,” including in a tweet from the official Twitter account belonging to the Ministry of Foreign Affairs of Mexico that specifically highlighted Colt guns.
The lawsuit comes over 170 years after Colt guns first started to be manufactured in Connecticut in the 1800s.
The company was founded by Hartford-born Samuel Colt, who revolutionized the revolver firearm by making it efficient to use through the use of a cylinder that would automatically rotate after each shot, making it easier to fire multiple times. After obtaining patents in Europe and the U.S. and a having a failed start to his firearms business in New Jersey, Colt set up shop in Hartford beside the Connecticut River, where for decades thousands of people were employed for firearms production in service to military, law enforcement and civilian use.
But in the 1990s, for financial reasons, Colt’s operations moved to West Hartford, where they’ve remained despite being bought out by a Czech firearms company in 2021. The former manufacturing plant is now a set of apartments and office spaces recognizable by a towering blue onion dome.
Colt’s place in U.S. history is regarded by some as one of innovation and success, evident by the 2008 National Historic Landmark designation of Coltsville Historic District, where the former Colt factory is located. But in Mexico, where more than 8,000 Colt guns have been recovered since 2010, according to Mexican military data, Colt is partly to blame for some of the gun violence by drug cartels, Mexico says in the lawsuit.
Colt said they do not comment on pending litigations, but so far they’ve argued in legal briefs that Mexico has no legal avenue to seek relief due to a U.S. federal law granting gunmakers legal immunity from misuse of their guns.
And they succeeded. The lawsuit was dismissed last year on the basis of that federal immunity law, even after arguments that Colt violated Connecticut state consumer law. So Mexico appealed, claiming that Mexican law should apply in this case instead of the federal immunity law, and even if the U.S. law did apply, that a violation of federal gun laws eliminates the immunity granted to the gunmakers.
Yet, Colt reiterated that the federal immunity law protects them. And they insist they shouldn’t be held responsible for cartel violence, saying they “do not owe Mexico any duty to alter how their firearms are manufactured and sold in the United States in order to prevent cartel violence in Mexico,” reads their appellate brief.
Almost two years since the lawsuit was originally filed, both sides will present their cases on Monday, July 24 in front of a three federal judge panel in appellate court in Boston, who will further evaluate the extent, if any, to which gunmakers are responsible for the actions carried out with their guns across borders.
And the stakes are high. If Mexico were to eventually bypass the federal immunity law, other countries would be able to sue the gunmakers seeking similar relief, making the gunmakers pay up some more in legal fees and possible court mandated damages. And if judges deem it necessary, they could remand the case back to district court where discovery could happen, meaning they’d request internal marketing documents from the gunmakers, as was the case in the lawsuit and settlement involving Remington and families of Sandy Hook victims.
“Just as Defendants may not dump toxic waste or other pollutants to poison Mexicans across the border, they may not send their weapons of war into the hands of the cartels, causing repeated and grievous harm, and then claim immunity from accountability,” reads the original complaint by Mexico.
What evidence is Mexico presenting?
To make the argument that they don’t play a major role in the cartel’s gun supply, Mexico points to their own gun laws that ban the civilian use of assault weapons, and to the fact that there is only one gun store in the entire country, which issues fewer than 50 permits a year and is managed by the Mexican military.
Mexican officials claim that most of the guns they’ve recovered have been traced back to the U.S., and it’s confirmed by federal data from the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
ATF data shows that for every year since 2016, about half of all firearms recovered in Mexico and submitted for tracing were traced back to a U.S. manufacturer. Guns traced back to the U.S., regardless of where they were manufactured, push the share up to about 70% each year.
Guns submitted for tracing do not represent all guns recovered in Mexico. ATF does not receive complete data about thousands of firearms, such as those recovered by Mexican states, because only Mexico’s federal attorney general’s office submits trace requests to ATF, according to a report by the U.S. Government Accountability Office.
While Mexico is the only named plaintiff in the case, it isn’t alone in the recovery of U.S. sourced guns. In 2021, an additional 1,779 guns recovered throughout Latin America and the Caribbean were traced back to a U.S. manufacturer. Some of those Caribbean nations — Belize, Antigua and Barbuda, Jamaica and Trinidad and Tobago — sided with Mexico by filing as friends of the court in the lawsuit against gunmakers.
“The gun manufacturers and distributers from a single nation must not be permitted to hold hostage the law-abiding citizens of an entire region of the world,” reads their brief.
Essential to Mexico’s argument is that the gun violence in the country cannot only be traced back to U.S. manufactured guns, but to the specific gunmakers named as defendants in the lawsuit.
Yet, more detailed information about trace requests, such as the make of a gun or the retailer where a gun was bought, is not available to the public. A series of amendments passed by Congress in 2003, known as the Tiahrt amendments, only allow law enforcement agencies and certain prosecutors to access detailed ATF data. The amendments also require the FBI to destroy all gun purchaser records within 24 hours and prohibits the ATF from requiring gun dealers to submit inventories to law enforcement.
There have been legal efforts by journalists and activists for more access to data, but it’s been met with resistance and some success. Chris Murphy and Richard Blumenthal, U.S. senators representing Connecticut, were part of a coalition of senators that introduced the Gun Records Restoration and Preservation Act this year, which would repeal many of the provisions limiting access to firearm trace data. The bill has been sent to the Senate Judiciary Committee.
“Gun records and tracing data help law enforcement keep communities safe, and it’s absurd that Republicans continue to support the Tiahrt Amendment which deliberately makes it harder to solve gun crimes and crack down on gun traffickers. We know traffickers bring hundreds of thousands of illegal firearms into Mexico every year, and I’ve spoken extensively with Mexican leaders about how our countries can work together to stem the flow of these guns into their country, as well as the flow of fentanyl into the U.S.,” said Murphy in a statement to the CT Mirror.
Murphy also was part of negotiations in the passage of the Bipartisan Safer Communities Act, which made straw purchasing and firearms trafficking a federal crime for the first time.
To fill the gap in access to detailed trace data, some turned to the Mexican government, which proved successful and allowed for the creation of the most comprehensive database of firearms recovered by Mexico’s military and traced to the U.S.
The database was made possible by information requests sent to the Mexican military by the research and advocacy group, Stop U.S. Arms to Mexico, and the Mexican Commission for the Defense and Promotion of Human Rights.
The compiled data reveals that of the more than 129,000 guns recovered in the country by the Mexican army from January 1, 2010 to March 16, 2021, 66,256 of them, or 51%, had an unidentifiable make while more than 8,500 guns, or 6.6%, were confirmed to be manufactured by Colt.
Of those Colt manufactured guns, more than 5,000 of them were pistols and about 2,100 were rifles, making up 65% and 25%, respectively.
This data only represents what the Mexican army obtained, not what other law enforcement agencies across Mexico have recovered — data that is not publicly available.
However, some more detailed firearm trace data became available after a group by the name of Guacamaya hacked the Mexican government and was able to obtain 6,000 gigabytes of emails from Mexico’s Secretariat of National Defense. The emails were made available to journalists and researchers, including John-Lindsay Poland, the coordinator of Stop U.S. Arms to Mexico, who made certain data available to the public.
In one of those emails, Mexico’s Attorney General’s Office sent a file with detailed firearm trace data about guns recovered in Mexico from 2019 to 2020.
What’s new about this data is that for some of the traces it also includes the retailers where the gun was originally purchased. Of the Colt guns recovered, the retailers they originated from are located in dozens of states, as far away as Oregon and Texas. The detailed data also shows the guns’ models, revealing that El Jefe, among other Spanish-named Colt guns, are found in the dataset.
For example, according to the leaked data, a .38 caliber El Jefe Colt pistol was recovered in August 23, 2019. The trace points to an original purchase at AMCLO Home & Hardware gun shop in Roma, Texas.
While it’s unknown how that firearm ended up in Mexico from a Texas hardware store, Mexico claims in the lawsuit that the gunmakers are aware of how some of the guns get to Mexico. Some of the trafficking methods include straw purchases, where an individual buys a gun on someone else’s behalf; multiple and repeat sales; kitchen-table sales, where dealers don’t sell from a retail store; missing guns; and trafficking at gun shows.
Mexico says multiple government and media reports have made these trafficking methods evident to the gunmakers and that they’ve yet to implement any measures to mitigate them.
And Mexico says that those guns being trafficked into the country are ending lives, providing various examples of deaths in Mexico where the murder weapon was a Colt gun. In one of them, a version of the Emiliano Zapata 1911 was used to murder a Mexican investigative journalist named Miroslava Breach Velducea.
Beyond individual events, they also link the rise in homicides in their country to increased U.S. gun production after the 2004 expiration of the U.S. federal ban on assault weapons, a connection which is also claimed in a statistical study by the American Political Science Review.
“Our analysis shows that the expiration of the U.S. FAWB led to immediate violence increases within areas of Mexico located close to American states where sales of assault weapons became legal,” reads the 2013 study.
At one point in the lawsuit, Mexico says that armed with the U.S guns, cartels market and push drugs such as fentanyl, ending lives both in the U.S. and Mexico. And dozens of U.S. district attorneys agreed, filing as friends of the court and further elaborating on the drug trade.
“Once the cartels get their hands on Defendants’ guns, they use them to build up their transnational operations and export deadly drugs to the United States. Because Mexican cartels rely on U.S. street-level gangs to sell their products, guns smuggled over the border frequently boomerang back into amici’s communities, where they are used to, among other things, attack law enforcement and rival gangs in our cities’ drug wars,” reads the brief.
But what does the data say about drugs from Mexico in the U.S.? In a 2020 National Drug Threat Assessment by the U.S. Drug Enforcement Administration, it says that 92% of the total weight of heroin the agency analyzed in the U.S. was of Mexican origin. They do note that the heroin sampled is “not representative of market share, but rather, indicates trends in the domestic market at the wholesale level.”
And there are publicized instances of drugs from Mexico ending up in Connecticut.
Most recently in April, according to a DEA press release, a man from Bridgeport was sentenced to five years in federal prison for his role in a heroin trafficking ring. The press release states that he would transport the cash made from drugs sold in Bridgeport after they arrived there from Mexico hidden inside secret compartments in motorcycles.
Last year, a man from New Britain was sentenced to 10 years in federal prison for his involvement in drug trafficking where he, along with others, received kilograms of narcotics, primarily fentanyl from Mexico, and distributed it in Connecticut.
Since 2012, there have been more than 10,000 deaths in Connecticut involving opioid overdoses. Fentanyl was involved in almost 7,000 of them and heroin was found in about 3,500.
The Biden Administration says it’s also aware of the lateral exchange of firearms and illegal drugs. Through collaboration with other agencies, they’re expanding the scope of investigations and increasing collaboration with Mexican authorities.
What do the appellate judges have to interpret?
Mexico is arguing that it experienced economic losses, costs, deaths and destruction of property due to the U.S. gunmakers’ firearms being trafficked into the country. And it makes eight different legal claims against the gunmakers, two of them being violations of Massachusetts and Connecticut state consumer laws. The rest allege various types of negligence, public nuisance, defective condition and unjust enrichment. An additional count was made, urging financial penalties be imposed on the gunmakers to prevent gun trafficking from occurring again.
Mexico also demanded various types of monetary relief and court mandates that would require the gunmakers to improve monitoring of their distribution systems, ensure their guns are safe to use and finance projects focused on deterring gun trafficking.
But last fall, a district judge dismissed the case.
The judge initially said that while the harm in Mexico can be fairly traced back to the gunmaker’s actions, federal law protects them from liability, invalidating at least seven of the nine counts.
The federal law referenced is the Protection of Lawful Commerce in Arms Act, or PLCAA for short, which holds that U.S. gunmakers can’t be held liable for harm caused by misuse of their products, with some exceptions. Passed in 2005 by Congress and signed by President George W. Bush, the law is the only one of its kind that protects an industry from most liability, unlike in the pharmaceutical and auto industries.
The remaining two counts alleged violation of state consumer laws, one of those being the Connecticut Unfair Trade Practices Act. CUTPA makes unfair and deceptive business practices illegal, such as price gouging or dangerous dietary supplements. Mexico claimed that Colt violated CUTPA by marketing its guns for civilian misuse such that they would attract cartels to use them in military-style combat against law enforcement in Mexico.
Mexico specified that the way Colt labels and describes its guns emphasizes the ability of civilians to misuse the guns in military-style attacks. They pointed out that gun labels such as “Trooper” and Colt’s assertion that the guns share “many features of its combat-proven brother” that can also help “accomplish any mission” build an association to military combat in the consumer’s view.
But the district judge ruled that Mexico doesn’t have standing under CUTPA. The judge explained that the harm experienced by the Mexican government, such as increased law enforcement expenses and damage to local economy, is “too derivative” of the harms that are experienced by those actually assaulted or killed by gun violence.
The judge references a previous lawsuit in Connecticut where the City of Bridgeport sued firearm manufacturers because the gun violence caused by the gunmakers’ firearms caused an increase in the city’s law enforcement and emergency services expenses. But the Connecticut Supreme Court said that, “there were too many links in the causal chain connecting the defendants’ conduct to the plaintiff’s harm.” The district judge said that the government of Mexico is in the same position as the City of Bridgeport.
This is in contrast to the lawsuit filed by the families of victims of the Sandy Hook Elementary School mass shooting in 2012, where 20 students and six staff members died. The families sought standing under CUTPA to work around PLCAA, arguing that Remington marketed their guns for military use by civilians. The Connecticut Supreme Court affirmed their standing due to the plaintiffs being direct victims of gun violence.
So with all counts dismissed, Mexico appealed. They didn’t argue the district judge’s interpretation of CUTPA. They reiterated from the original complaint that Mexican law should apply.
Mexico says, “you cannot apply PLCAA to Mexican law and Mexican damage, because PLCAA only applies to American law and it only applies to damage occurring in the United States. So you cannot extraterritorialize a U.S. statute on Mexican territory, because that’s against international law,” explained Dr. León Castellanos-Jankiewicz, supervisor at the International Law Clinic on Access to Justice for Gun Violence at the University of Amsterdam.
With Mexico claiming that Mexican law should apply, the question arises of why the country didn’t file the lawsuit in a Mexican court. Alejandro Celorio Alcántara, principal legal adviser to Mexico’s Foreign Ministry, explains that it would’ve been hard to enforce a judgment made by a Mexican judge if it involves defendants in the U.S.
“If we had sued in Mexico, the first thing is like serving notice to the companies. They could have basically said, ‘I don’t do business in Mexico, I’m not gonna even participate in the litigation,'” said Celorio Alcántara. “We would need the Mexican judge to contact a U.S. judge to enforce a Mexican judgment. So it would have been very, very difficult to enforce an injunction and of course, to get the recovery, the monies. That would have been very problematic.”
Celorio Alcántara adds that the defendants could claim that the Mexican judicial system is corrupt, further discouraging thorough litigation.
So Mexico is claiming that PLCAA shouldn’t apply because the harms occurred in Mexico, but what if the law did apply as the district judge ruled?
Mexico adds that even if PLCAA applies, the gunmakers’ violation of state or federal laws regarding the marketing or sale of guns provide an exception to PLCAA, eliminating the immunity granted to gunmakers and allowing the case to move forward. But Mexico doesn’t seek the exception through CUTPA, which is what happened in the Sandy Hook case. Instead, Mexico argues that the gunmakers violated numerous federal laws, such as the National Firearms Act and the Gun Control Act, which regulate fully automatic weapons and its sales.
And others agreed. After Mexico’s appeal, Connecticut Attorney General William Tong and 14 other state attorneys general filed as friends of the court in the case, siding with Mexico saying that the district court made an “error” in not considering whether the alleged violation of federal statutes allow for an exception to PLCAA.
The next step is for the three-judge panel in Boston to evaluate the District Court’s interpretation of PLCAA with the possibility of it being appealed yet again by either side to the Supreme Court, which doesn’t hear all appeal requests, or to all the judges of the First Circuit Court of Appeals.
Another avenue that Mexico says would be beneficial is if the case is remanded back to district court and thrown into discovery, to the point that the judge would request detailed ATF data. “With that information, we could make the connection between the U.S. and Mexico,” explains Celorio Alcántara.
And the case could have repercussions beyond Mexico.
“This can be replicated… The arguments that are being put forward by Mexico can be made by any country that has a substantial amount of American or even European weapons that are flowing in illegally,” explained Castellanos-Jankiewicz.
But Mexico isn’t stopping there. The country filed a second lawsuit against Arizona gun dealers last year to find other avenues to prevent alleged U.S. involvement in gun trafficking.