Torts, Aiding and Abetting, Federal Common Law,
Under federal law, to be held liable as an aider and abettor of a crime, a defendant must be shown to have taken an affirmative act in furtherance of the underlying wrong with the intent to facilitate the commission of that wrong. In other words, an aider and abettor must “participate in” a crime “as in something that he wishes to bring about” and “seek by his action to make it succeed.” Although aiding and abetting is generally directed at a specific underlying wrong, it is possible for someone to aid and abet a broad category of misconduct, but then his participation must be correspondingly “pervasive, systemic, and culpable.” Aiding and abetting normally requires affirmative misfeasance, not nonfeasance. And routine and general activity that happens on occasion to assist in a crime—in essence, “incidentally”—is unlikely to count as aiding and abetting. Here, Mexico did not plausibly allege that American gun manufacturers aided and abetted Mexican gangs under these standards. Since the manufacturers sell to distributors, not retail sellers, Mexico could not allege that the manufacturers sold to dealers who they knew were making illegal retail sales, and the rest of Mexico’s allegations were of nonfeasance in failing to police sales of the weapons.