Author: romanw

In State of Washington v. Dep’t of State et al., No. C18-1115-RSL (W.D. Wash), Judge Lasnik decided he had the power to vacate our license from the State Department. The rest of his order blandly accepts the Plaintiff States’ basic position and either skips past our arguments entirely or addresses them with conclusory denials.  We have come to expect this kind of laziness and basic error from district judges.

The good news is the appeal window to the Ninth Circuit opens soon. The standard of review is de novo, so such a one-sided and obviously wrong order should be easy enough to reverse. The Feds likely don’t want such an order to stand, but I won’t argue for them here.

I won’t share our overall appellate strategy in these blog posts, but no one is going to be interested in Lasnik and the Seattle action in the next stage of this controversy. Our focus will remain on New Jersey, and soon you’ll see why.

In Defense Distributed et
al., v. Grewal, No. 19-1729 (3rd Cir.) we’ve concluded the scheduled briefing on our motion for an injunction pending appeal, as well as for Grewal’s motion to summary affirm.

The orders will likely lack opinions but the takeaways are no less striking. In a year of direct litigation against Section 3(l)(2) of New Jersey Senate Bill 2465, Grewal has not once defended the constitutionality of his speech crime. He misses his filing deadlines and fails to follow basic motions practice by phoning in letters over formal appellate briefs. What legal reasoning we encounter in these is by analogy and lacks a basic consonance, or even familiarity, with Third Circuit precedent.

And we are supposed to believe this state wants a direct police power over the entire Internet?

Fighting all these states in court may sound serious to you, but their lawyering is second rate and doesn’t compare to federal action involving DOJ. Consider this excerpt from our TRO hearing in Pennsylvania last year:

This one is fun:

Our battle is difficult because it’s expensive and time consuming. But otherwise it’s tedium. New Jersey is not sending us their best.

If you’d like to support this litigation, please join DD LEGIO.

Legion,

Recently I accepted Paloma Heindorff’s invitation to return to the directorship of Defense Distributed. Her commitment to our company’s purpose is total. Her execution of our 2019 plans has been flawless, and she will maintain an executive role with Ghost Gunner.

Today I’d like to announce that Paloma and the greater DD/GG team were able to fulfill the first of the public defense contracts we outlined last summer, amid the multi-state opposition to our legal victory against the US Dept. of State. In return for your support in our legal fight, we are able to reveal Contract X as the Ghost Gunner 3, which we have now placed into production.

GG3 is a complete rebuild, drawing from all our lessons in CNC and 80% work. We gave it a closed-loop digital VFD, optical limit switches and made it five times more powerful, but most meaningfully the GG3 cuts steel – including heat-treated AK 80% receivers –  which opens up an entirely new front in digital gunsmithing.

Against every kind of opposition, the Ghost Gunner project has satisfied its revolutionary possibility. It’s a true platform with a broad community and it has exceeded our original designs entirely. Proceeds from the sale of the machine will fund four of our six major lawsuits.

For those still wondering, these lawsuits are:

• Defense Distributed, et al v.
  U.S. Dept. of State, et al., No. 1:15-cv-00372-RP (W.D. Tex.) and No. 18-50811 (5th Cir.)

• State of Washington v. Dep’t of
  State et al., No. C18-1115-RSL (W.D. Wash)

• Defense Distributed et
  al., v. Grewal, No. 3:19-cv-04753-AET-TJB (D.N.J.) and No. 19-1729 (3rd Cir.).

• Defense Distributed et al. v.
  Grewal, No. 1:18-cv-00637-RP (W.D. Tex.).

The states bringing suit against us have no standing and their courts have no jurisdiction. Of course that will take a few years for us to all figure out together, but our enemy knows this and is trying to stand up as many new laws as possible to ward off the inevitable. The New Jersey situation will continue to best showcase this cycle of overreaction and sloppy litigating.

This week, before the Third Circuit, DD filed a motion for an injunction pending appeal in our matter challenging New Jersey’s absurd, year-old speech crime law. This blog will maintain a focus on New Jersey.

It’s been a lesson in lawfare for me these last 12 months. I will apply what I’ve learned for your benefit.

crw

Legate

As expected, Judge Thompson in New Jersey issued an order denying our motion for an injunction pending appeal. We knew she’d deny the motion.  The question was how long it’d take, and she acted quickly, which now allows us to cleanly proceed to the Third Circuit Court of Appeals.

19-1729 is our appellate case number in the Third Circuit. Like the district court case, it’ll be called Defense Distributed et al. v. Grewal for short. We’ll disclose the briefs as they are filed.

You can support this litigation by joining LEGIO.

For the benefit of our members, we’d like to present the transcript of the status hearing that led to the present stay order in New Jersey against our many plaintiffs.

For its seven years of life, Defense Distributed has been denied due process of law for five in the federal courts. Always for one capricious reason or another. Observe how casually our forum is taken away, as a matter of process and substance, by the brokers of power.

A marvellous pull quote:

THE COURT: Well, you know, I have a lot of respect for the rules and following procedures, and some people call that due process, but we function very much as seems practical and fair and prompt and efficient. And so, I don’t feel in anyway constrained to require motion practice rules when a party seeks a stay.

Pg. 8 – 11

These little caprices magnify into multi-year litigation at monumental expense. Always to the benefit of the state authority.

You can support this litigation by joining LEGIO.

March 7th was a banner day for New Jersey’s abuse of power and process against us, Legionnaires. What began as a status conference on our PI schedule became a motion hearing, where Grewal’s lawyers and an obviously disinterested Judge Thompson forced a stay ruling. How could a surprise stay ruling occur in a status conference without the Plaintiffs being afforded the chance to file a substantive response? How could a judge, relying on no authorities, issue a stay against totally new plaintiffs and totally new issues that were not a part of our 1983 action in Texas? Hey, ask New Jersey. They’ve been making it up as they go along since at least May of 2018.

All this error has been preserved, and we are mobilising for direct appellate review, but this typifies the completely improvisational nature of the legal obstacles these petty authorities, state and federal, have thrown up against Defense Distributed since our settlement with the State Department.

No press picked it up, perhaps because it’s so discreditable, but on the same day as our stay, NJ Senator Menendez sent a letter to Twitter asking Jack Dorsey to specifically censor one account sharing updated versions of the DEFCAD AR-15 reference files. Is there another word to use when a politician asks a private company to edit the public communications of a private individual?

Note how this public servant further asks Twitter to limit the ability of people to share links to firearms CAD data both publicly *and* in private messages, a mirror of the steps Facebook took this summer. Yes, Facebook implemented a policy literally preventing users from communicating about 3D data related to guns in real time. In what other domain of knowledge do we accept politicians asking for such explicit censorship and control?

Defense Distributed’s legal activism has always been about making the terms of the debate explicit, and demonstrating authority’s willingness to attack the Internet to get at the very *idea* of the firearm. New Jersey takes the bait without irony.

They literally believe they have designed an enforceable, state-level regime for control of all the Internet’s traffic in firearms design data. Their national congressional delegation believes it can suspend or reset the Export Control Reform process and force the State Department to control whatever data their state authority somehow misses. And the state has enough rubber stamp district and federal courts that they know it will take years to officially correct them.

But all this lawmaking and letter writing didn’t prevent the technical improvement and re-release of the DEFCAD AR-15 reference files, did it? This furious rush to the courts and the state legislatures around the country only served to demonstrate to a small community of people that such CAD data was politically important and necessarily a public good. All this sound and fury produced a better set of reference models for the AR-15 than has ever existed before in online circulation. And that’s how this is always going to go, Legionnaires.

Our legal efforts may seem frustrated and never-ending, but imagine being these people in New Jersey, clumsily fighting against creative people who want to *give something away for free* through the perfectly liquid channels of the Internet. A lost cause.

You can support this litigation by joining LEGIO.

Last week DD and co-plaintiffs withdrew our TRO request in New Jersey federal court and pressed for a non-delayed preliminary injunction schedule. March 20 is our PI motion’s hearing date, and it will take place in Judge Anne Thompson’s courtroom in Trenton.

There had been some drama and intrigue about the nature of a takedown request to codeisfreespeech.com (CIFS) in our initial complaint and application for relief. The New Jersey AG’s office eventually disclaimed this takedown notice after an internal investigation, and referred the matter to their U.S. Attorney’s office. Cloudflare has a writeup about this notice as well.

Of course this changes nothing in the overall 1983 action. Grewal has been attacking our company for months and valorizing his efforts in the press. We have standing in New Jersey because Grewal:

1. Issued two rounds of cease and desist letters over the summer of 2018 to Defense Distributed and created press to reaffirm these threats.
2. Directed his threats and letters to Defense Distributed’s service providers, including Cloudflare.
3. Initiated civil action in New Jersey state court, attempting to block DEFCAD’s file publication under a theory of “public nuisance.”
4. Initiated and joined civil action in Washington federal court, attempting to block DEFCAD file publication.
5. Announced his intent to enforce New Jersey’s new speech crime at the signing ceremony for SB 2465.

His office may not have sent a takedown notice to CIFS, but read their letter again. Do they disclaim the power or intent to send such a notice?

You can support this litigation by joining LEGIO.

When the states began attacking DEFCAD at the conclusion of five years of litigation in Defense Distributed v US State Dept., our founder said these politicians and statesmen were so eager to abridge the Second Amendment that they would take away the First.

Not two days after the dismissal of DD v Grewal in TX, the attorney general of New Jersey threatened codeisfreespeech.com and Cloudflare with criminal prosecution if they did not within 24 hours delete all of the DEFCAD files they had been mirroring since July.

We know that the tech press is uninterested, but to be clear, this is a state politician telling a host in California and a national CDN service that they are guilty of a speech crime in New Jersey based on the public content they’ve merely re-published on the free Internet.

As of yesterday, Defense Distributed, joined by SAF, FPC and codeisfreespeech.com, have again filed to enjoin Grewal and his absurd and obviously unconstitutional speech crime. This time we have filed in New Jersey where the AG will presumably submit to the court’s jurisdiction. The case is Defense Distributed et al. v. Grewal, No. 3:19-cv-04753 (D.N.J.).

Section 3(l)(2) of New Jersey Senate Bill 2465 is a gift, in that it is so comically overpowered and ignorant of its numerous federal supersessions that even a strongly anti-gun federal judge will have her hands tied dealing with it. It’s also a gift that these New Jersey authorities keep admitting their laws were specifically passed to target our work, and it’s a gift that they proudly do this in public pressers.

Even though DD and codeisfreespeech.com have been censored for months, we are blessed that AG Grewal believes in the right of free speech for himself. We look forward to him speaking again in open court.

If you’d like to support this litigation, please join DD LEGIO.

The 1983 action that DD brought this summer against those states and cities who tried to intimidate us into not posting our licensed files at DEFCAD has been dismissed in Texas. The judge does not believe a Texas court has jurisdiction to hear the case. The transcript of the hearing arguments can be downloaded here:

DD v Grewal TX Transcript

As we’ve noted before, the lawyering from New Jersey and the other defendants has never been sophisticated. Our company stands to not allow any authority, federal or state or local, under any color of law to deprive the people of technical information and knowledge related to the manufacture of arms.

We are considering all options and will most likely lead the fight in new and multiple jurisdictions. Over the coming months we will recount the compounded, interstate legal cowardices that have produced this multi-year litigation against one modest non-profit effort in Texas.

If you would like to support our next round of litigation, we ask that you join LEGIO.

As advertised, New Jersey’s representative confused and frustrated the court. When in doubt, he’d get out some non sequitur about our company as the “Amazon of fully functioning, fully 3D AR-15s.” But he doesn’t deserve blame for being unable to explain Section 3(l)(2) of New Jersey Senate Bill 2465, because it is, of course, inexplicable.

• Is a statute that bans every form of communication related to firearms manufacturing CAM and CAD content as narrowly tailored as it could be?
• Is it the state’s position that it is criminal to mail otherwise legal CAD data about otherwise legal firearms to a New Jersey address?
• How is this state action not preempted by the federal protections within the Communications Decency Act and indeed the ITAR itself?

Silence from the huddled officeholders on the phone in New Jersey.

The judge offered them a chance to file something intelligible on a later day.

We’ve been asked “what are the next steps now?” or “why no result?” It isn’t that we expect too much. Our judge has already come up with remarkably inventive ways to avoid the merits of this dispute. In our urgent motions for temporary injunctive relief against New Jersey at the end of the year, the judge wrote that Defense Distributed, the world-famous online and commercial distributor of 3D gun files:

… [had] failed to identify the speech content, if any, of the activities they claim the statute will force them to cease.

This from a judge who had handled our previous federal case for the last four years.

So what are our expectations?

We believe the judge will issue an order within a week or two, and regardless of that order the case will proceed on appeal. It’s just good to get these people in a room once every few months to defend things other people wrote for them, about things only other people understand.

If you’d like to join this fight, we ask you to join LEGIO.