3-D Printed Guns and Jurisdiction Over Out-of-State Attorneys General

I don't have much to say about yesterday's Fifth Circuit decision in Defense Distributed v. Grewal (written by Judge Edith Jones and joined by Judges Jennifer Elrod, with a concurrence by Stephen Higginson), another example of the lawyer's true superpower: the power to make every question into a question about procedure. Here's the core of the majority's analysis:

Plaintiff Defense Distributed is a Texas company operated for the purpose of promoting popular access to firearms. To carry out this purpose, it produces and makes accessible information related to the 3D printing of firearms and publishes and distributes such information to the public….

Defense Distributed began distributing files related to the 3D printing of firearms in December 2012. It did so by publishing files to its defcad.org and defcad.com websites and letting visitors freely download them. It also distributed digital firearms information via mail and at a brick-and-mortar public library in Austin, Texas. Defense Distributed's efforts were initially met with opposition from the United States Department of State. But, after a period of litigation, the parties reached a settlement agreement that granted Defense Distributed a license to publish its files.

Shortly thereafter, nine Attorneys General, including New Jersey Attorney General Grewal, filed suit on behalf of their respective states in the Western District of Washington to enjoin the State Department from authorizing the release of Defense Distributed's files. They argued that the State Department's license to Defense Distributed constituted an ultra vires about-face that violated the Administrative Procedure Act and jeopardized the states' statutory and regulatory schemes for firearms. The Western District of Washington quickly issued a temporary restraining order, followed closely by a nationwide preliminary injunction.

Just before the Attorneys General sued in Washington, Defense Distributed and SAF brought the instant action in the Western District of Texas challenging select enforcement actions taken by the state Attorneys General. Of relevance to this appeal, plaintiffs alleged these actions by Grewal: (1) sending a cease-and-desist letter threatening legal action if Defense Distributed published its files; (2) sending letters to third-party internet service providers based in California urging them to terminate their contracts with Defense Distributed; (3) initiating a civil lawsuit against Defense Distributed in New Jersey; and (4) threatening Defense Distributed with criminal sanctions at a live press conference. Further, these actions, coupled with the injunctive orders issued in the Washington litigation, have caused Defense Distributed to cease publication of its materials. The plaintiffs asserted, inter alia, that these actions infringed the exercise of their First Amendment freedoms and constituted tortious interference with the State Department's settlement agreement….

Grewal moved to dismiss for lack of personal jurisdiction…. [The question is whether federal courts in Texas have] specific jurisdiction [over Grewal, on the theory that he is a] defendant "doing business" in the state, including defendants who "commit[ ] a tort in whole or in part in th[e] state."

"The constitutional requirement for specific jurisdiction is that the defendant has 'minimum contacts' with the forum state such that imposing a judgment would not 'offend traditional notions of fair play and substantial justice.' " This court has framed the inquiry as a three-step analysis: "(1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiff's cause of action arises out of or results from the defendant's forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable."

The issue on appeal is whether Grewal has established sufficient minimum contacts with Texas… "[T]he totality of [Grewal's] contacts with Texas involves a cease and desist order" sent to Defense Distributed. And Grewal's purpose in issuing the cease-and-desist letter ostensibly was to enforce New Jersey public nuisance and negligence laws (more on this below). Further, Grewal, … was sued in his official capacity and did not derive commercial benefits from performing his governmental function….

[Grewal] does not cabin his request by commanding the plaintiffs to stop publishing materials to New Jersey residents; he instead demands that the plaintiffs cease publication of their materials generally. For example, in his cease-and-desist letter, Grewal states that the plaintiffs' "widespread dissemination of printable-gun computer files is negligent because it encourages an illegal gun market, which will foreseeably lead to increased crime and violence in New Jersey." He accordingly requests that Defense Distributed "halt publication of the printable-gun computer files" without specifying that Defense Distributed cease marketing its materials to New Jersey residents.

Grewal's conduct beyond sending the cease-and-desist letter confirms his intent to crush Defense Distributed's operations and not simply limit the dissemination of digital files in New Jersey. Grewal's enforcement actions are selective. He has not targeted the many similarly-situated persons who publish Defense Distributed's files on the internet. Instead, he has focused solely on Defense Distributed. Perhaps nowhere is this better illustrated than in Grewal's efforts to enjoin the national distribution of Defense Distributed's files by suing in Washington, far from his or the plaintiffs' home state. Grewal has also threatened Defense Distributed's founder, Cody Wilson, by name, promising to "come after" "anyone who is contemplating making a printable gun" and "the next ghost gun company." Together, these actions confirm Grewal's intent to force Defense Distributed to close shop.

Relatedly, the intended effects on the plaintiffs and, by extension, the intended effects on Texas residents who would benefit from the plaintiffs' activities, are [thus substantial]…. Grewal seeks to bar Defense Distributed from publishing its materials anywhere, not just in New Jersey. Grewal's actions, moreover, have all been taken in the name of law and order. He has projected himself across state lines and asserted a pseudo-national executive authority ….

[Plaintiffs] allege that Grewal's letter had a chilling effect on the exercise of their First Amendment rights (among other constitutional and Texas law violations). That chilling effect, in turn, caused them to cease publication and reduced Texans' access to the materials the plaintiffs seek to publish…. In this sense, Grewal created contacts with Texas and not just the plaintiffs.

Grewal's contacts with Texas, moreover, are more than a "mere fortuity" …. Grewal intentionally mailed the cease-and-desist letter into Texas …. Further, that contact alone gave rise to distinct tort causes of action. Grewal knew that the cease-and-desist letter would "have a potentially devastating impact" on the plaintiffs—and, by extension, those who wished to benefit from the plaintiffs' activities, including Texas residents. And he "knew that the brunt of [the] injury would be felt by [the plaintiffs] in [Texas]." Based on the foregoing analysis, … Grewal has established sufficient minimum contacts with Texas to subject him to the jurisdiction of Texas's courts.

{We do not intend to convey that sending a cease-and-desist letter into a forum always subjects the sender to jurisdiction in the forum state…. "There are strong policy reasons to encourage cease and desist letters. They are normally used to warn an alleged rights infringer that its conduct, if continued, will be challenged in a legal proceeding, and to facilitate resolution of a dispute without resort to litigation. If the price of sending a cease and desist letter is that the sender thereby subjects itself to jurisdiction in the forum of the alleged rights infringer, the rights holder will be strongly encouraged to file suit in its home forum without attempting first to resolve the dispute informally by means of a letter." … Indeed, … sending a cease-and-desist letter may, under different circumstances, be insufficient to establish personal jurisdiction. Today's holding is derivative of the specific language used in Grewal's cease-and-desist letter coupled with other actions he took that, together, demonstrate his intent to gut Defense Distributed's operations and restrict Texans' access to Defense Distributed's materials. That the plaintiffs' injuries are directly attributable to the cease-and-desist letter itself also weighs heavily in our analysis.}

 

Comments

[KevinP]

Texas has an Official Oppression statute.

I wonder if Gangster General Grewal has made himself subject to it by his own actions?

[Dilan Esper]

This actually is a nice example of the difference between policy concerns and legal reasoning.

I can very much credit some policy concerns about this holding. Essentially these plaintiffs rushed into court with declaratory judgment suits because they wanted to litigate in Texas rather than the states where these AG's were located. Further, there's a significant concern about that forum selection- you are making state officials come to a court a thousand miles away to defend their state's policies.

But the principles of personal jurisdiction- particularly Calder- stand for the idea that if you direct your action into another state, the claim arising out of that act can be brought in that state. The court is right on the merits here.

[Squirrelloid]

Disagree on the policy considerations. The state has vastly more power than individuals. AGs in states far from plaintiff bringing legal action against plaintiff when plaintiff is not acting in their jurisdictions is what's suspect, because now plaintiffs have to fight legal action in a court thousands of miles from them with far less power and resources.

(The following is my take as a matter of policy, not what the law currently says: People in NJ going online to access material plaintiff published in TX is not the plaintiff crossing state lines, but the people in NJ crossing state lines. There's only two places where court proceedings should be allowed here: TX, where plaintiff is located, and CA, where the servers are located, and CA should only have jurisdiction over the servers. Neither NJ nor WA should have any jurisdiction to go after plaintiff in their own states).

[Bruce Hayden]

One of the keys here is that the NJ AG didn’t attempt to just prevent DD from publishing in NJ, but nationally.

Also note that the files are widely available elsewhere, and it is impossible for NJ, or any state, to make even a dent in the availability of these files.

As a note - I have copies of the DD files, in multiple locations. Few are really interested in the actual Ghost Gun files, because those guns are reapply pretty worthless, fit for use only a handful of times with modern technology. What is useful are it’s CAD and cutting tools for 80% complete receivers (the part that is considered the firearm by the ATF). It is perfectly legal under federal law, and the laws of most of the states, to complete 80% complete receivers for personal use. The completed gun does not require ATF FFL registration. It is similarly legal at the federal level and in most states to 3D print receivers. You can then finish building an operable firearm with off the shelf/over the Internet parts. Note though that these firearms are for personal use only and cannot legally be transferred by sale except possibly to a close family member. Maybe.

Most popular, so far, has been completing 80% complete AR-15 (and AR-10) lower receivers. It typically requires merely drilling out the trigger well, and holes for the selector switch and two pins. This process can be easily done by somewhat skilled people in their home shops using only a drill and router (or a drill using router bits). A readily available jig is useful, but not necessary. DD sells a small CNC machine, along with jigs and bits, that make this process extremely easy. They also provide jigs, bits, and cutting tools for several other firearms, such as 1911 and Glock 19 handguns.

[Absaroka]

"Note though that these firearms are for personal use only and cannot legally be transferred by sale except possibly to a close family member. Maybe."

I think a more accurate description of the law would be "people who are in the business of making firearms must hold a manufacturers license".

So: you make a gun, from a kit, from raw iron ore, using a hammer and anvil or 3D printer, whatever, because you want to make a gun for yourself, or even as a gift - no problem. And if you later decide you don't want it anymore, you can sell it.

OTOH, if you think 'I'll make a few quick bucks by making a gun and selling it', then you need the manufacturers license.

In practice, it's probably not legally healthy to be making a lot of guns just because you think making guns is fun, then shortly after making them deciding you don't want them any more and selling them.

[Dilan Esper]

That's, I think, right on the merits of the suit. Nobody doubts the government's power to regulate gun manufacturing, at least on the same terms that it regulates any sort of manufacturing, and perhaps even more than that.

So you have to draw a line somewhere if it's possible to efficiently manufacture a lot of guns at home.

As I said, though, I think the 5th Circuit is clearly right on jurisdiction.

[Brett Bellmore]

IIRC, if you decide to sell, you have to obtain from the government and engrave serial numbers. If it's just a gift, I'm not sure.

[Absaroka]

Nope, the serialization requirement[1] applies to those engaged in the business, i.e. licensed manufacturers, post 1968. Prior to 1968 the manufacturers didn't have to serialize, and not all did.

People not engaged in the business simply aren't required to serialize. I think most do, but the law doesn't require it.

My sense is that congress didn't set out to carve out an exemption or anything, they just added a requirement that those 'in the business' apply serial numbers, and probably didn't think much about DIY types.

As an aside, I'd classify this as a giant non-problem. If some hard pressed machine shop owner decides to start illicitly making guns, he is going to ignore the marking requirements (or fake the markings of a legit company). But he's sure not going to decide to not get into the illicit arms business because of serialization concerns.

And the hobby maker isn't hurting anyone, anymore than the home brewer is. Both of those can just be benignly ignored, IMHO.

Moreover, if you are worried about unserialized DIY guns, just create a serialization requirement. What the folks who don't like guns seem to be trying instead is a requirement phrased something like 'it is verboten to possess a gun without a serial number applied by a licensed manufacturer'. And hobbyists can't become licensed manufacturers, because they aren't engaged in the business.

[1]I'm talking normal guns here, not NFA items. And federal law; there are some states (CA?) with serialization requirements.

[Bruce Hayden]

“I think a more accurate description of the law would be “people who are in the business of making firearms must hold a manufacturers license”.”

I seem to remember the ATF having a definition, that takes into account the number of guns a year that you build. Something like that.

I should note that part of the justification for this “loophole” is probably that the NFA was Constitutionally justified as regulation of interstate commerce. Sure, making guns and selling them locally doesn’t directly affect interstate commerce, but arguably displaces interstate sales, which does. That argument though becomes problematic when you make the guns for your own use - something that has been going on in this country since well before we became an independent country.

[Absaroka]

"I seem to remember the ATF having a definition, that takes into account the number of guns a year that you build."

I haven't seen that. DIY guns are a pretty obscure corner. I'd think that the arguments would be similar to whether you are 'in the business' of selling guns, where the ATF has guidance, which goes something like:

1)Mr. Smith dies with a collection of guns. Widow smith rents a table at the gun show and sells all 100 in a weekend (or 10 a month for 10 months, or whatever). Not 'in the business'.

2)Mr. Jones trawls gun shops looking for deals, and immediately flips them on gunbroker. He does 10 a month for 10 months, and continues after the ATF contacts him with a warning - he's going down.

3)Jane sees a bargain at the gun store and immediately sells if for a profit - legally maybe the same as #2, I dunno, but never prosecuted because a)it would be hard to prove and 2)she isn't going to be on the radar enough to have the ATF asking her what her intentions were.

Again, IANAL, I just try to keep up because I want to be coloring well inside the lines.

[Patrick Henry, the 2nd]

Further, there’s a significant concern about that forum selection- you are making state officials come to a court a thousand miles away to defend their state’s policies.

Maybe then states shouldn't make unconstitutional policies affecting citizens in another state.

[Dr. Ed 2]

What scares me is the *safety* of the 3-D printed guns.

I've seen a bolt blown out of a .308 rifle -- my cousin did it because he hadn't cleaned the weapon and it likely was rusty as well.

But that was a standard steel gun -- there's a lot of energy when a round is fired and I'm not so sure I'd want to fire a printed gun...

[Bruce Hayden]

That is a problem. Probably a big problem. Most 3-D printing still utilizes plastic, and the pressures with firearms can be significant. My guess is that lower pressure cartridges are typically used in these plastic guns for just that reason.

This is a good place to point out that there are two very different issues here: undetectable 3-D printed guns, and unserialized firearms, typically created for personal use by individual,

[Absaroka]

I'm going to go on a bit of a riff here, because about 90% of what people think about DIY guns, especially 3D printed ones, is ... way off the mark.

Let's start with the issue of material strength. There are, AFAIK, zero all plastic gun designs. I think there are a couple that go so far as to use (short lived) plastic barrels and even plastic springs. Even those have a metal firing pin, I think. But sane engineers don't approach a design problem as 'how can I design a widget using only one material of fabrication process'.

Plastic is already a widely used material for firearms - there are commercially available AR receivers, and any number of polymer pistols. The Remington's 'Nylon 66' rifles dates back to 1970 or so. But it's silly to e.g. use plastic springs. Sensible people either use off the rack springs from the bins at your local hardware store, or wind their own from music wire. This is hobby machining 101.

I really don't understand the fascination with/hoopla about 3D printing - and I have one and have made receivers with it. But in general the aspiring DIY gun maker will be better served with a small milling machine. And there is nothing novel about DIY guns. E.g. look at the equipment JM Browning used. His workshop is a museum now, and most hobby machinists today have more capable equipment.

Moreover, you can make perfectly functional guns without machinery. Look at this AR receiver</a. That is just bolted together from flat pieces of aluminum. You can make that with a hacksaw, a file, and a cordless drill, and it will work just as well as one from a factory.

The '3D printing ends makes gun control impossible' hoopla is silly. Making guns has always been something you can do in your basement. And the '3D printed guns are a huge threat' hoopla from the other side is also silly, and for the same reason.

[Brett Bellmore]

Both sides are trying to establish legal precedents that will carry through to when metal 3D printers hit the hobby market in a few years. And the gun controllers are just generally attempting to make firearms plans unavailable to anybody but licensed manufacturers, they have been attempting that for some time now.

Somewhere around here I've got the plans for the Maadi-Griffin. They took Bob Stewart down for making those available. Weren't able to keep scans of the book from showing up all over the internet, though.

[Absaroka]

"They took Bob Stewart down for making those available."

I'm not sure that's a completely accurate description of the case.

"when metal 3D printers hit the hobby market in a few years."

Maybe, but there are some formidable technical issues there.

[Bruce Hayden]

Cool. Have you actually completed a build with the bolt together lower receiver? Any problems? Reliability? Did you design this, or are there plans somewhere for it?

I am interested. We have been doing the 80% thing for awhile, both with a GG 2, and using existing shop tools. It of course has nothing to do with a fear that the Dem platform this year promises massive gun grabbing, starting with modern sporting rifles (such as AR-15s)...

[Absaroka]

Yes, I did. I 3D printed the pieces, each one a different vibrant color. No idea of reliability, my state outlawed printed receivers soon after I built it so I destroyed it.

I didn't design, but it isn't hard to design. In general, the outside dimensions of an AR lower don't matter, so just wrap plate around the required cavities (mag well, fire control, etc). The hole spacing etc doesn't change.

"...starting with modern sporting rifles..."

Not my motivation. I have no intention of building or possessing anything illegal. Of course, crooks don't have that concern; bans are effective against the law abiding, and not effective against those who intend to break the law. They are almost the perfect inverse of how you want a law to work.

[lurialdealer]

I think that it is a very important theme for American society. For example, some parts for the rifle are really possible to print with https://anisoprint.com/ continuous fiber 3D printing. The same technology is also used by a wide range of manufactures, from small businesses to big corporations.