Yesterday, the US Court of Appeals for the Fifth Circuit delivered a bench slap to hoplophobic New Jersey Attorney General Gurbir Grewal and his campaign to shut down Austin-based Defense Distributed‘s distribution of design files for 3D printed firearms.
To understand what this means, a little history is helpful . . .
In response to Defense Distributed’s release of plans for the Liberator pistol and other 3D-printed gun components, the Obama administration reacted by declaring that the online publication of such plans constituted illegal arms exports without the requisite license from the State Department, in violation of ITAR.
Defense Distributed sued the government in the federal district court for the Western District of Texas, claiming inter alia that this action was an unconstitutional prior restraint on its rights to free speech. The trial court denied Defense Distributed’s motion for a preliminary injunction, which Defense Distributed was able to immediately appeal to the Fifth Circuit.
In 2016, two members of a Fifth Circuit panel voted to duck the issue, holding that the appeal failed to meet the extremely high requirements for reversing a denial of a preliminary injunction, while taking care to point out that the legal issues were substantial and that they were not ruling on the merits of the case (which remained to be tried by the district court).
In a scathing dissent, Judge Edith Jones castigated the court for ignoring the elephant in the room, beginning her analysis as follows:
Since the majority are close to missing in action, and for the benefit of the district court on remand, I will explain why I conclude that the State Department’s application of its “export” control regulations to this domestic Internet posting appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint.
(Full disclosure: I was a law clerk to Judge Jones over 30 years ago.)
She then proceeded to draw a very clear roadmap for the district court on remand, making a compelling case that the administration’s actions were unquestionably unconstitutional.
Defense Distributed then requested that the Fifth Circuit rehear the case en banc. Doing so requires half of the active status judges on the Fifth Circuit to vote to grant such a petition. Unfortunately, at that time Democratic appointees had a majority of such positions, and thus the petition was denied. Dissenting from the denial of an en banc rehearing, Judge Jennifer Elron began as follows:
The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint. Judge Jones’s cogent panel dissent thoroughly explores the flaws in the panel opinion. I write here to highlight three errors that warrant en banc review. First, the panel opinion fails to review the likelihood of success on the merits—which ten of our sister circuits agree is an essential inquiry in a First Amendment preliminary injunction case. Second, the panel opinion accepts that a mere assertion of a national security interest is a sufficient justification for a prior restraint on speech. Third, the panel opinion conducts a fundamentally flawed analysis of irreparable harm. Accordingly, I respectfully dissent from the denial of en banc review in this case.
Thus, when the case was remanded for trial in 2018, there were new factors in play. Numerous judges of the Fifth Circuit (as well as virtually every First Amendment scholar in the country) had made compelling arguments that Defense Distributed’s case was open and shut.
Remember, the Fifth Circuit’s majority decision did not hold that the district court findings were legally correct, merely that the record on appeal did not reach the extremely high degree of error (abuse of discretion) required to reverse a denial of a preliminary injunction.
Second, Trump was then in the White House and the Department of Justice was considerably less interested in defending an unconstitutional policy that the Obama administration had cooked up for political reasons.
As a result, when the case was returned to the district court, the parties reached a settlement that mooted the case by having the State Department grant Defense Distributed a license under ITAR to publish its plans online. Over the objections of various gun control organizations (who unsuccessfully sought to intervene to try and block the settlement), the district court dismissed the case per the stipulation of the plaintiffs and the government.
Unfortunately, for some reason, counsel for the plaintiffs did not include some critical “magic words” in their dismissal papers. In federal court, if the parties want to dismiss a case, but want the same court to be able to enforce or interpret their settlement agreement (which you typically would, given that the court is presumably already familiar with the case), then they must include an explicit statement in the dismissal order that the court retains jurisdiction to enforce the settlement. Otherwise, the court loses jurisdiction over the case.
For the life of me, I cannot understand why plaintiffs’ counsel did not include this essential language. As a result, the usual suspects from anti-2A states were able to file various lawsuits challenging the settlement in other, less-friendly venues.
One of the most vocal players in this horse opera was New Jersey Attorney General Gurbir Grewal, who sought not only to block distribution of Defense Distributed materials in New Jersey, but instead publicly threatened criminal prosecution of Defense Distributed and its principals for any online distribution of their materials. He also sent threatening letters to Defense Distributed’s California-based ISPs to try to have Defense Distributed’s accounts cancelled.
Defense Distributed thus sued AG Grewal (and others) in the Western District of Texas, asserting that such actions were an unconstitutional infringement of its First Amendment rights and were tortuously interfering with the settlement agreement between Defense Distributed and the government.
Grewal moved to dismiss the lawsuit against him for lack of personal jurisdiction; i.e., he claimed that he could not be sued in Texas, despite his threats directed at Texas residents for actions occurring outside New Jersey. The district court granted this motion, and so once again Defense Distributed was off to the Fifth Circuit.
Fortunately for Defense Distributed, the panel assigned to the case included Judge Jones. In a stinging opinion, yesterday the Fifth Circuit reversed this decision – meaning that the case against Grewal is being sent back to be tried in Texas.
I’ll spare everyone the gory details of the opinion (it’s an analysis of whether and under what circumstances out-of-state actors are subject to “long arm” jurisdiction…that may be interesting to litigators and constitutional law mavens, but will put most people to sleep).
Suffice it to say that the way Judge Jones’ opinion is written, it’s quite clear that she hasn’t forgotten what is really going on here. Nor has she missed the fact that, thanks to a spate of new appointments by President Trump, pro-2A judges are once again a majority on the Fifth Circuit.
We’ll see what happens when the case returns to the district court. A lot can still happen. For instance, the district court could chicken out by granting a motion to transfer the case to New Jersey. But at least for now, Attorney General Grewal is going to have to explain himself to a Texas jury and, ultimately, to a Court of Appeals that is already unfriendly to him.
Pass the popcorn.