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On The Case

‘Ghost gun’ advocacy group can sue N.J. AG in Texas - 5th Circuit

(Reuters) - The Texas “personal gunsmithing” nonprofit Defense Distributed wants to provide the public with internet access to its files detailing how to manufacture firearms using 3D printers. New Jersey’s Attorney General, Gurbir Grewal, is one of several state AGs bent on blocking Defense Distributed from supplying the public with instructions to make so-called ghost guns.

The state AGs, Defense Distributed and the U.S. government have been battling over public access to the ghost gun manufacturing files for years, as I’ll explain. But the Texas nonprofit’s feud with New Jersey AG is more personal. New Jersey has a state law criminalizing the distribution of instructions to manufacture firearms and gun components with 3D printers. And when the NJ AG proclaimed his intention of enforcing that law in 2018, Defense Distributed sued Grewal in federal court in Austin for interfering with its First Amendment rights.

On Wednesday, the 5th U.S. Circuit Court of Appeals ruled that Defense Distributed can litigate its case against the New Jersey AG in Texas courts. The decision, written by Judge Edith Jones for a panel that included Judges Stephen Higginson and Jennifer Elrod, said Grewal subjected himself to Texas’ jurisdiction when he sent Defense Distributed a cease-and-desist letter and made other statements that “demonstrate his intent to gut Defense Distributed’s operations and restrict Texans’ access to Defense Distributed’s materials.”

The appeals court reversed a 2019 dismissal and sent Defense Distributed’s case back to U.S. District Judge Robert Pitman of Austin. The N.J. AG’s office declined to comment. But the upshot of the 5th Circuit decision seems to be that Defense Distributed can now move ahead in its home court with claims that an official from New Jersey, acting in his capacity as a state official, violated its rights.

Defense Distributed’s counsel, Chad Flores of Beck Redden, referred my query to Cody Wilson, the group’s director. “We look forward to Grewal explaining to a Texas judge how his corrupt state’s laws control Texans’ speech,” Wilson said.

At the moment, I should point out, Defense Distributed isn’t publishing its files on the internet. That’s its own long story. When the group first began providing online access to files related to the production of firearms via 3D printers in 2012, it was opposed by the U.S. State Department, which cited national security concerns. Defense Distributed sued, claiming violations of its First and Second Amendment rights. After several years of litigation and a change in presidential administrations, the group reached a settlement with the U.S. government in 2018 that allowed Defense Distributed to offer online access to the files.

Twenty state AGs, including Grewal, sued in federal court in Seattle to enjoin the government’s 2018 rule. They won a nationwide injunction in 2019. The administration changed the rule and attempted to re-impose control over the 3D printing gun instructions through the Commerce Department. The AGs sued again, fearful of loopholes in the new rule. Defense Distributed, meanwhile, contends that its 2018 settlement requires the government to allow publication of the files, but it’s not making the files available on the internet while the AGs’ litigation is under way.

In the brief window of time in 2018 when the group’s internet files were public, the New Jersey AG vowed to enforce his state’s law barring the publication of instructions for making a 3D printed firearm. He sent Defense Distributed a cease-and-desist letter, sought an injunction in New Jersey state court and notified Defense Distributed’s internet hosting and security providers.

Defense Distributed alleged that Grewal was breaching its free speech rights. Its suit in Austin federal court sought to block the New Jersey AG from enforcing his own state’s law. It also contends that the New Jersey AG could be on the hook for money damages. (Defense Distributed sued several other officials from different states but has dropped claims in Texas against everyone except the New Jersey AG.)

In the trial court, Judge Pitman ruled that he did not have jurisdiction. There’s no case directly on point, but he based his ruling on the 5th Circuit’s 2008 decision in Stroman Realty v. Wercinski (513 F.3d 476), in which the appeals court said Texas did not have jurisdiction to hear a Texas timeshare company’s challenge to a cease-and-desist order from an Arizona official who sought to enforce Arizona’s real estate licensing requirements. Like the Arizona official in Stroman, Judge Pitman said, the New Jersey AG (and the other since-dismissed defendants) did not have sufficient contacts with Texas to warrant jurisdiction under the state’s long-arm statute.

The 5th Circuit disagreed. Grewal, the appeals court said, didn’t just send Defense Distributed a cease-and-desist letter. He “projected himself across state lines and asserted a pseudo-national executive authority that the public official in Stroman never asserted,” Judge Jones wrote. He did not mean only to limit the publication of the group’s 3D printing instructions in New Jersey, the appeals court said, but “to crush Defense Distributed’s operations.”

And if that weren’t enough of a rebuke, the 5th Circuit shrugged off the New Jersey AG’s argument that it would not be “fair and reasonable” for Texas courts to exercise jurisdiction. “We are skeptical,” the 5th Circuit said, but in any event, Grewal failed to make that argument before Judge Pitman so he could not rely on it at the appeals court.

Judge Jones took pains to clarify that Wednesday’s ruling does not grant courts in the 5th Circuit blanket jurisdiction to hear suits against out-of-state officials based solely on cease-and-desist letters. “Today’s holding is derivative of the specific language used in Grewal’s cease-and-desist letter, coupled with other actions he took,” she wrote.

But the ruling sure seems to leave considerable leeway for the recipients of such letters to sue in their home courts if out-of-state officials have, for instance, held a press conference to announce their action or filed a suit to accompany the letter. As AGs flex their power, the 5th Circuit has warned them to mind their borders.

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