By Howard Fischer
Capitol Media Services
PHOENIX -- Attorneys for five Arizona gun dealers, including one in Yuma, are asking a federal judge to toss out a claim by the Mexican government that they are responsible for violence in that country.
In a new court filing, the team of lawyers say nothing in the complaint alleges any evidence that the weapons sold by the five companies -- three in Tucson, one in Yuma and one in Phoenix -- actually were used by Mexican cartels in commission of a crime. In fact, they said, the allegations never even claim that 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. And 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.
The lawyers also said that even if the dealers had sold guns to Mexican citizens, there is no duty under U.S. law to protect foreign governments from harm.
And there's something else.
"This case implicates a clash of national values,'' they said, with the two countries having 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 Judge Cindy Jorgenson. "This court should not allow Mexico to use the federal judiciary as a tool for circumventing the U.S. domestic legislative process.''
The lawsuit alleges that each of the five retailers has engaged in transactions that clearly indicated these were "straw sales.'' The attorney for Mexico said that includes bulk and repeat purchases.
And that, the claim charges, violates U.S. laws on both straw purchases and exports to Mexico.
What also is an indicator, according to Mexico, is the sale of assault weapons which have 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 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.
What the weapons also are, which is not specifically mentioned in the lawsuit, are legal in this country.
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 don't see it that way, saying they have been "singled out ... to make a political statement.''
They pointed out that the lawsuit identifies about 132 firearms that were involved in alleged straw purchases from the five dealers during a five-year period. That, they said, translates out to an average of five firearms per defendant per year.
"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 attorneys for the dealers told the judge.
The original lawsuit also has a claim that has nothing to do with weapons that wind up in Mexico but instead goes to what could be considered a broader attack on assault-style weapons: a violation of the Arizona Consumer Fraud Act.
That is based on claims each of the retailers sold guns into the commercial market "while characterizing and promoting them as military-style weapons.'' And 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 Jorgenson that claim 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.
What that is aimed at, they said, is 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 has been made.
And in this case, they said, the government of Mexico is not an "injured consumer.''
There's another flaw, the dealers said, in that 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 again 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 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 the President Joe Biden signed a new law which makes "straw purchases'' illegal. And there is nothing in that statute that shows it is meant to be retroactive.
What that means, the lawyers for the dealers say, is any alleged straw sales that happened before June 2022 can't be used by Mexico to support racketeering claims.
No date has been set for a hearing.
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Here are the named defendants:
Diamondback Shooting Sports Inc.
7030 E. Broadway Road, Tucson
SnG Tactical LLC
3441 S. Palo Verde Road, Tucson
Loan Prairie LLC, dba The Hub
listed in complaint at 4501 W. Grant (cq) Road, Tucson
but web site lists it at 1400 S. Alvernon Way, Tucson
Ammo A-Z LLC
listed in complaint at 2040 W. Deer Valley Road, Phoenix
but web site lists it at 2005 W. Deer Valley Road, Phoenix
Sprague's Sports Inc.
listed in complaint at 1460 W. 18th St., Yuma
but web site lists it at 345 W. 32nd St., Yuma