[International human rights law] Urgent legal reforms needed as victims of gun violence face limited access to courts in the United States

In a new blog post on Just Security, Asser Institute international law researcher León Castellanos-Jankiewicz and international law intern Kaya van der Horst build the case for repealing the Protection of Lawful Commerce in Arms Act (PLCAA) in the United States. The authors demonstrate how the U.S. federal law hinders the right of gun violence victims to access U.S. courts. The statute’s expansive interpretation, they argue, jeopardizes the right to a remedy that survivors of gun violence and their family members are entitled to under international human rights law.

In their blog post ‘Ensuring Access to Courts for Gun Victims: The Case for Repealing PLCAA,’ Castellanos-Jankiewicz and van der Horst demonstrate how PLCAA presents ‘inordinate legal hurdles’ barring victims’ right to access to justice. They do this by identifying the ways PLCAA grants the U.S. gun industry a broad shield of immunity from civil liability, and delineating the right to remedy under international law. The Protection of Lawful Commerce in Arms Act, signed by George W. Bush in 2005, effectively preempts gun manufacturers and sellers from most civil liability claims, thereby insulating the gun industry from legal responsibility for reckless sales practices and failure to improve the safety of their products.

The authors point out that, ‘the uneven application of PLCAA by U.S. courts underscores the high level of legal uncertainty victims of gun violence face when seeking redress’. International standards recognise access to justice as a basic human right, and as a means to protect other universally recognised human rights. The need for victims to have access to an effective remedy is also emphasised in the UN Guiding Principles on Business and Human Rights (UNGPs). According to the UNGPs, state-based judicial mechanisms are one of three remedies for business-related human rights mechanisms. PLCAA, however, inhibits victims from accessing state-based judicial mechanisms.

Surging gun violence in the U.S. 
Castellanos-Jankiewicz and van der Horst’s publication comes at a time of renewed public scrutiny of gun laws and heated debates on how to decrease America’s surging gun violence. 2020 alone had a record 45,222 firearm-related deaths in the United States. Minors are disproportionally affected by gun violence, and firearm homicides became the leading cause of death among children and adolescents in the U.S. in 2020.

In their blog post, Castellanos-Jankiewicz and van der Horst underscore that the U.S. court’s narrow interpretations of PLCAA’s six exceptions to its generous immunity for the gun industry leaves victims of gun violence with few avenues for judicial relief: ‘Taken together, the combination of both differing state laws and expansive interpretations of PLCAA’s exceptions often result in the failure to ensure plaintiffs’ right to a remedy.’ Consequently, Castellanos-Jankiewicz and van der Horst, contend that the U.S. Congress should repeal PLCAA to both restore victims’ access to courts and hold the gun industry accountable for their unscrupulous business practices. 

Policy priority
Following the tragic mass shootings in Uvalde and Buffalo in 2022, the U.S. Congress passed its first gun control bill in decades, last June. A month later, the U.S. House Judiciary Committee advanced a bill seeking to repeal PLCAA. Though the bill has yet to be voted on, U.S. President Biden has also made repealing PLCAA a policy priority.

In their piece, Castellanos-Jankiewicz and van der Horst contribute to the momentum to repeal PLCAA by highlighting how ‘PLCAA is of concern as an obstacle to public safety.’ They write: Tort liability is not only an essential tool for citizens’ right to remedy, but also acts as a public feedback mechanism by steering gun companies’ safety practices through financial incentives.”” 

Several U.S. states have moved to restore access to courts to victims of gun violence by enacting new civil liability laws, according to Castellanos-Jankiewicz and van der Horst. New York, Delaware and California have recently created new civil actions for public nuisance, and New Jersey is contemplating a similar law. The New York law was upheld recently by a U.S. District Court. The authors contend that these legislative developments should not distract from the ultimate goal of repealing PLCAA.

Historic lawsuit
While a key pillar for determining the degree of American gun companies’ legal liability domestically, PLCAA has also been the focus in a groundbreaking use of transnational litigation. In Mexico v. Smith & Wesson, the Mexican government brought a historic lawsuit against 10 U.S. gun manufacturers and distributors in the Massachusetts District Court last year. Mexico is claiming $10 billion in damages from the arms manufacturers’ due to their negligent failure ‘to exercise reasonable care’ in manufacturing, marketing, and selling their guns in ways that reduce the likeliness of their being trafficked into and causing harm in Mexico.

Here, the determination of the extraterritorial application of PLCAA remains a contentious issue in the progression of the case: Mexico argues that PLCAA does not apply extraterritorially and that Mexico’s claims are based on violations of Mexican law, while the defendants maintain that PLCAA applies, thereby dismissing the suit. Chief Judge F Dennis Saylor is soon expected to rule on the gun companies’ request to dismiss the case. 

International human rights law
In a recent interview with Al Jazeera about Mexico v. Smith & Wesson, Castellanos-Jankiewicz stated that “Mexico’s lawsuit convincingly argues that PLCAA is inoperative in certain transborder situations. To avoid this exposure, the case could lead the gun industry to adopt litigation-induced safety enhancements.”  He added that PLCAA should be repealed because it “hinders the right of gun victims to access the courts in accordance with international human rights law.”

Alejandro Celorio Alcántara, the principal legal advisor to Mexico’s Ministry of Foreign Affairs, has also written that “The goal of Mexico’s lawsuit is to make the manufacturers incur the costs of their failure to distribute their products safely and responsibly. Making them do so, will change their financial incentives, encouraging them to become fighters against gun trafficking rather than profiteers from it.”

Last May, Castellanos-Jankiewicz co-convened an expert panel discussion with Thilo Marauhn - the Special Chair for Arms Control Law at the Asser Institute - on the implications of Mexico v. Smith & Wesson within transnational corporate liability for gun control and other areas. The panel included leading legal scholars, as well as an opening presentation by Celorio Alcántara, who provided expert insight into Mexico’s legal strategy and the case's broader implications. Topics covered included issues of jurisdiction, admissibility and applicable law related to Mexico’s seising of the U.S. court system and corporate liability with respect to products causing transboundary harm. 

Read the full blog post in Just Security.

Read more 
Us arms companies under pressure from Mexico lawsuit by Ann Deslandes
In a recent Al Jazeera article on Mexico’s lawsuit against U.S. gun manufacturers, León Castellanos-Jankiewicz spoke on the role of PLCAA in the case. Read more. 

[Watch] Video on Mexico v. Smith & Wesson discussion on transnational civil litigation and corporate liability for gun violence
In May 2022, the Mexican Embassy in The Hague – in collaboration with the Asser Institute and the University of Amsterdam - organised an in-depth discussion on the groundbreaking case of Mexico v. Smith & Wesson filed last August in the District Court of Massachussets. To watch the video, click here. To view the program and panelists, click here.

[Interview] León Castellanos-Jankiewicz: ‘Mexico is serious about making the US gun industry accountable for the damages caused with their products’
Asser Institute researcher León Castellanos-Jankiewicz is actively following the Mexico v. Smith & Wesson litigation, initiated by Mexico against 10 U.S. gun manufacturers, a potentially game-changing case for gun control. Read more. 

Mexico v. Smith & Wesson: US court duel over extraterritorial legal issues looms with motion to dismiss by León Castellanos-Jankiewicz
On November 22, 2021, Smith & Wesson and other U.S. gun manufacturers and distributors moved to dismiss the civil complaint filed against them by Mexico in the U.S. District Court of Massachusetts. The case involves a number of transnational legal issues, including extraterritoriality, Mexico’s sovereign status, and the application of Mexican law in U.S. courts. The suit also highlights the growing relevance of transnational litigation in the field of corporate accountability. Read more.

About León Castellanos-Jankiewicz and Kaya van der Horst
Dr León Castellanos-Jankiewicz is researcher in international law at the Asser Institute and academic coordinator of the Netherlands Network for Human Rights Research. His work focuses on international human rights law, the history of international law and minority protection.  

Kaya van der Horst is an intern at the Asser research strand ‘In the public interest: accountability of the state and prosecution of crimes’. This research strand examines i) the accountability of states – individually and collectively (for instance at the level of the United Nations or the European Union) – in light of public interest standards in the context of counter-terrorism; and ii) the prosecution of individuals for international and transnational crimes in the public interest. Moreover, to ensure both the accountability of the state and the prosecution of individuals, this strand will also investigate iii) the role of journalists, the (new) media, human rights NGOs and academics in protecting and promoting public interest standards.