Editorial | Sue gunmakers, US gov’t, too

Last week, a United States (US) federal court in the state of Massachusetts began hearing a case, previously highlighted in these columns, to which we invited the Jamaican authorities to pay attention: Mexico’s suit against a ream of American gunmakers for the harm their firearms inflict on its citizens.

It is too late now for Jamaica to join those proceedings. But that shouldn’t mean that it is the end of the matter. For even if Mexico loses this case – and some of the judge’s questions during oral arguments in the case suggest that he has doubts about its merits – Mexico’s novel approach to a problem that affects many countries in Latin America and the Caribbean may be a template for others to adjust and follow, both in national courts and international judicial mechanisms.

Indeed, it is a matter on which Jamaica might consider collaborating with other Caribbean Community (CARICOM) countries, notwithstanding Kingston’s increasing disinclination to cooperate with the community on external issues.

Like Jamaica, Mexico has very restrictive gun-control; laws. Yet the country has a proliferation of firearms. Guns are used in around 60 per cent of the country’s over 33,000 annual murders – for a homicide rate of 26 per 100,000, which is 23 percentage points, or 47 per cent, lower than Jamaica’s.

Similar to Jamaica and the guns used by the island’s gangs, most of the weapons in the hands of Mexico’s violent drug cartels are from across the border in the US. A flow of over half a million annually, the Mexican government says.

Nearly 70 per cent of these weapons are made by the biggest names in the US firearms industry – Smith & Wesson, Sturm, Ruger & Co, Beretta USA, Barrett Firearms Manufacturing, Colt’s Manufacturing Co, and Glock Inc. Mexico is seeking US$10 billion from them.

UNDERMINE LAWS

Mexico’s argument is that the gunmakers knowingly undermine its laws in how they design market and distribute their guns – especially assault weapons – with features that are attractive to the cartels. Among other things, the guns are easy to modify and are designed with motifs celebrated by the Mexican underworld. Thirteen US states, plus the District of Columbia (DC), support Mexico’s case, even filing briefs in the matter. In CARICOM, Antigua and Barbuda and Belize declared support for the action.

“It is unacceptable for gun manufacturers and distributors to knowingly market their products in a way that facilitates the illegal trafficking of weapons into the hands of dangerous individuals,” Maura Healey, the attorney general for Massachusetts, one of the states supporting the suit, said in a February statement.

However, in a country where gun ownership has been upheld as a constitutional right, the gunmakers, in their defence against Mexico’s claim, are relying on the Protection of Lawful Commerce in Arms Act, a 17-year-old law that protects gunmakers and dealers from liability for crimes committed with their products. However, as Ms Healey and others point out, the firms are not indemnified if there is criminal misconduct by them and if they have cause to be aware that their weapons are intended for use in crime.

However, US District Judge Dennis Saylor, who is presiding over the case, appeared to betray doubts that foreign countries could sue American companies for how their weapons are used, say, in the Israel Palestinian conflict or the war in Ukraine.

“If Ukrainians are using United States manufactured military weapons or Smith & Wesson revolvers for that matter to defend themselves, can the government of Russia come in and say you have caused us harm?” he asked lawyers representing Mexico. “I mean, why not, if your theory is right?”

This newspaper believes that the inherently political disputes between states raised by Judge Saylor are qualitatively different from the matter before him, and in that regard, will raise different questions of jurisdiction of courts. In any event, the Federal District Court in Boston is only the first rung of the judicial ladder. Moreover, with the benefit of Mexico’s example, Caribbean countries, which collectively face an epidemic of criminal violence, can find other creative ways to test the accountability of firearm manufacturers.

MORE AT STAKE

Jamaica has more at stake than most. With nearly 50 murders per 100,000 population, the island has the hemisphere’s highest homicide rates. And of the more than 1,300 murders committed here annually, over 70 per cent are with the use of illegal guns, of which more than 2,000 come from the United States each year.

The US has not been aggressive enough, lackadaisical even, in preventing the outflow of weapons. Neither, we believe, have the manufacturers been sufficiently engaged in initiatives to halt the illegal trade. Jamaica should, therefore, elicit CARICOM’s support to, like Mexico, mount a class action suit against companies in US courts.

Separately, regional states should sue the firms in domestic courts. If legislation does not exist that demands specific behaviour and obligations from gun dealers and manufacturers, these can be passed. Timing, with respect to such a move, is propitious for Jamaica, given that it is now in the process of amending its firearms law.

Additionally, Jamaica and other CARICOM members that subscribe to the Inter-American Court of Human Rights should test the possibility of bringing actions against the United States for aiding and abetting the violation of the human rights of their citizens (the right to life) by facilitating the easy flow of guns to people whose murderous intent are, or ought to be, well known.