TUCSON, Ariz. (CN) — Five Arizona firearm retailers appeared before a federal judge Thursday, hoping to beat back accusations that the businesses directly and intentionally supply deadly weapons to Mexican drug cartels.
The nation of Mexico sued the five gun stores in 2022, claiming the stores engage in illegal sales practices to aid in the trafficking of high volumes of guns and ammunition across the southern border.
While Mexico has some of the strictest gun laws in the world — and only one gun store, located on a military base — the country nonetheless experiences among the highest rates of gun-related homicides. Of the guns recovered from crime scenes in Mexico, more can be traced back to Arizona than to any other U.S. state, and more to Maricopa County than to any other U.S. county, according to the complaint.
Mexico claims that the Arizona-based retailers — Diamondback Shooting Sports, SNG Tactical, Loan Prairie, Ammo AZ and Prague Sports — overlook obvious red flags that indicate they’re selling to traffickers, including high-volume and repeat purchases of military-style assault rifles like the AK-47 and AR-15. It claims the retailers knowingly sell to straw buyers, who resell the guns to smugglers before the smugglers take them over the border and into the hands of the cartels.
But straw selling was only made illegal in the U.S. in 2022 — and most of the sales cited in Mexico’s complaint occurred before then. The retailers moved to dismiss in January 2023, arguing that Mexico failed to state a specific and remediable claim.
In court on Thursday, defense attorney Jeff Malsch told U.S. District Judge Rosemary Marquez that the harm claimed by Mexico isn’t “fairly traceable” to the gun sellers.
Because the guns went through multiple hands before reaching cartel members who used them criminally, the liability can’t be placed on the sellers, Malsch said. He said it's the same reason why lawsuits against cigarette companies claiming medical damages often fail: The onus is on the smoker, not the seller.
Steve Shadowen, an attorney representing Mexico, countered that the damages caused by these guns is in fact traceable to the retailers because it was “highly foreseeable” that the weapons would end up in the possession of cartels.
Marquez, an Obama appointee, reminded Malsch that there are fewer steps between the sellers and the damages in this case compared to a similar case Mexico filed against gun distributors in Massachusetts. The First Circuit sent that case back to trial court in January, after it determined that Mexico has legal standing to sue.
Malsch argued that Massachusetts case is different because the distributors advertised their guns directly to cartels — something he said the defendants here didn’t do.
Jon Lowy, another attorney for Mexico, complained that the defendants characterized that case as “nearly identical” to this one when the Massachusetts district court dismissed it, and yet pointed out slight differences after the First Circuit remanded it on appeal.
Mexico has achieved standing because it has stated plausible claims, Lowy argued. Claims don’t have to be “probable” for a court to take them up. They must only be plausible.
Malsch said the red flags Mexico pointed to are legal non-starters for a case in the United States.
“It can’t be a red flag just to sell a firearm that’s legal in the U.S.,” he said. “It’s legal to sell more than one gun at a time. That isn’t an indicator of trafficking.”
But Mexico's argument was about more than the simple sale of a firearm, Lowy argued. In a six-month span, some buyers returned to stores more than 15 times, purchasing multiple weapons each time.
“Any reasonable person would think, ‘Why do you need 10 assault weapons and a sniper rifle?’” he told the judge.
Mexico claims that around 47 guns traceable to the defendants are recovered from Mexican crime scenes every year. Malsch called that a “drop in the bucket” that would “not change the dynamic in Mexico in any way" — even if the Arizona businesses were to be curtailed.
Shadowen called that a misinterpretation of the situation. He cited academic studies from the complaint, which found that for every gun recovered at a crime scene in Mexico, anywhere from 18 to 45 guns were trafficked across the border. By that math, the number per year isn’t 47 — it's between 846 and 2,115.
“Those aren’t the numbers they were talking about,” Shadowen said of the defendants. He argued that if the retailers stood at the border and directly handed 2,000 guns to cartels, “nobody would call that a drop in the bucket.”
Mexico has accused the retailers of negligence, public nuisance and racketeering for what it argues is the retailers' role in cross-border gun trafficking. In addition to monetary damages, the country has asked the court to appoint monitors for up to 10 years to modify and oversee the stores' sales practices.
The gun-store defendants, on the other hand, say monitors won’t make any difference for gun violence in Mexico.
Judge Marquez didn’t indicate on Thursday when she’d rule, instead suggesting that the court wait to see if the U.S. Supreme Court takes up Mexico’s case in Massachusetts. The defendants say she should. Mexico disagrees.
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