DD v. Grewal (3d Cir.) – Appeal Update
April 16, 2019
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.
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DD v Grewal NJ Status
March 19, 2019
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.
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DD v Grewal Update
March 12, 2019
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.
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PI Hearing in DD v Grewal II
February 18, 2019
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:
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?
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DD v Grewal II
February 6, 2019
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.
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Texas DD v Grewal Dismissed
January 31, 2019
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:
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.
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January 15th Hearing
January 17, 2019
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.
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.
PI Hearing in Defense Distributed vs. Grewal
January 3, 2019
Our case against New Jersey’s insane new speech crime (SB 2465) proceeds with an order from the judge requiring both parties to attend, in person, a preliminary injunction hearing in Austin on January 15.
As a reminder, New Jersey’s legislature and Governor apparently allowed the Giffords Law Center and its pro-bono legal consortium FACT to ghostwrite a criminal statute preventing the entire American public from sharing all digital information related to the manufacture of firearms on the Internet. This works by making it a felony crime in New Jersey for *anyone* to share *anywhere* on earth *any* kind of digital firearms information that a New Jersey court could determine may at some point assist in the manufacture of firearms.
Section 3(l)(2) of SB 2465 provides:
“…it is a third degree crime for: …(2) a person to distribute by any means, including the Internet, to a person in New Jersey who is not registered as a … manufacturer… digital instructions in the form of computer aided design files or other code or instructions … that may be used to program a three-dimensional printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component.”
If this wasn’t clearly totalitarian enough, the statute goes on to define “three-dimensional printer” to mean any computer or tool that can benefit from drawings or code in the manufacturing process, and “distribute” to mean any verb connected with human communication:
“…sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not, and includes an agreement or attempt to distribute.”
Giffords and friendly attorneys general in other states like Washington are attempting to replicate these kinds of statutes and dress them with the presumption of lawfulness so firms like ours have to take the time and expense to challenge them. In the meantime, they believe they can get away with preempting the federal law that controls the questions related to ITAR and gun files on the Internet, and of course they hope against hope that they might insert the same kinds of language into new federal laws (HR 7115) so they don’t have to fight at the state level.
We invite you to watch the representatives of New Jersey confuse the court and contradict themselves in a public hearing on January 15 in Austin, Texas. If you’d like to join this fight, we ask you to join LEGIO.
Temporary Restraining Order Motion against State of New Jersey
December 5, 2018
On December 4th, 2018, Defense Distributed filed an emergency motion in Texas for a temporary restraining order against the state of New Jersey in response to Senate Bill #2465, which criminalizes online speech related to the manufacture of firearms. This was the second such filing we have attempted in as many months.
Today, the presiding judge in our case again abstained from ruling on the motion and left our company exposed and in jeopardy of total shutdown at the whims of a backwards political class in New Jersey.
The temporary restraining order motion may be viewed here.
Defense Distributed has for over a month been trying to block a new and dangerous law (Section 3(l)(2)) in SB 2465 which was built to make our entire company and all our internet activities illegal.
SB 2465 is not just an attempt to make downloading firearms-related files illegal within the state of New Jersey, it is a hilarious attempt to make *any* website in the world hosting such files illegal if someone from New Jersey can find *any* way to access it. Or at least this would be hilarious if the federal judiciary wasn’t totally spineless.
More than the attempt to censor the entire Internet by mere state law, the statute makes it illegal to “share” and “offer” and “distribute” files from person to person via any means, not just the Internet. DEFCAD is now down again because of this outright and strict liability ban on advertising and mailing digital files. No judicial power will yet assist us.
New Jersey can sue us in federal court in WA and say DD has the right to mail files to users of DEFCAD, while it can sue us in state court under the theory that mailing or sending files to residents of their state violates public nuisance law. All the while, they can create and attempt to enforce a new criminal law that makes it a felony advertise or offer our sites or files on the Internet.
If you are reading this message and from or in New Jersey, know that if we simply showed you a link to a working DEFCAD marketplace, or emailed you about the same, we would all now face criminal liability.
We will be making updates on this situation here. Please Join LEGIO to support us in our efforts.