Gurbir Grewal
New Jersey Attorney General Gurbir Grewal (AP Photo/Julio Cortez, File)

By LKB

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.

 

RELATED ARTICLESMORE FROM AUTHOR

44 COMMENTS

  1. What a goat rodeo.

    What we are seeing is, at best, legalized bullying. At worst, what we are seeing is simple “lawfare” — a state of war where the other side is using the courts (and ultimately the courts’ legal enforcers) rather than infantry, tanks, and attack aircraft to try and defeat us.

    This garbage stinks to high Heaven.

  2. “The Law” is designed to entertain scholars, attorneys and judges. “The Law” is an exercise in wordsmithing and fantasy logic, all intended to conclude in as small an area of application that any change in any word or condition requires an entire new episode of claims before the bar…in order to entertain scholars, attorneys and judges.

    • Yes, indeed. And those scholars, attorneys and judges all tend to suffer from magical thinking, namely that if “The Law” prohibits something then people won’t do it. The quintessential magical thinking law is the one that implies that putting up a “Gun Free Zone” sign will cause guns never to be present where the sign is posted.

    • Justice according to Law.com

      n. 1) fairness. 2) moral rightness. 3) a SCHEME or system of law in which every person receives his/ her/its due from the system, including all rights, both natural and legal. One problem is that attorneys, judges and legislatures often get caught up more in procedure than in achieving justice for all. Example: the adage “justice delayed is justice denied,” applies to the burdensome procedures, lack of sufficient courts, the clogging of the system with meritless cases and the use of the courts to settle matters which could be resolved by negotiation. The imbalance between court privileges obtained by attorneys for the wealthy and for the person of modest means, the use of delay and “blizzards” of unnecessary paper by large law firms, and judges who fail to cut through the underbrush of procedure all erode justice. 4) an appellate judge, the Chief Justice and Associate Justices of the U.S. Supreme Court, a member of a Federal Court of Appeal and judges of any of the various state appellate courts.

  3. Nothing will happen to Grewal. He gets basically unlimited taxpayer funds to fight this. Can Defense Distributed recover any legal fees from Grewal, or his office? What a joke the legal system is when everything is based on politics.

  7. I don’t need Trump to be a conservative or a republican. What I want is to see him set the board with all the right players so that we see stuff like this. Before Trump, there would have been no way in hell to see this from the ninth circuit.

    THIS is what ‘draining the swamp’ looks like.

      • “Draining the swamp needs a bigger Dozer”

        Having more than one on the job could be most useful. The crowds peeking through the fence watching the dozer at work don’t actually get anything done.

        Down ballot political races are critical.

    • Nope. This is what the Federalist Society having an outstandingly successful run in nominating judges looks like. “Draining the swamp” looks very different from this, and has not been done by any President in our lifetime. Some largely leave it alone, some add their own sewage. Trump has been dumping masses of alligators and swamp monsters over the levees.

      This passage from Yeats describes Trump’s time well.

      Turning and turning in the widening gyre
      The falcon cannot hear the falconer;
      Things fall apart; the centre cannot hold;
      Mere anarchy is loosed upon the world,
      The blood-dimmed tide is loosed, and everywhere
      The ceremony of innocence is drowned;
      The best lack all conviction, while the worst
      Are full of passionate intensity.

      • “Hey Cheetah”, says the Falcon, “they think we can’t hunt without them.” ,,,it poems like these that poss me off. Besides a Dog and maybe a Horse, Humans? Humans? We Don’t Need No Stinking humans .

  10. Must really suck to lose like that. And he promised so many people he’s get it done too. Loser.

  11. “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.”

    The problem is, a license was required to ‘allow’ something that requires no permission in the first place…

  12. LKB or other lawyer – is the Fifth circuit considered generally friendly, or not friendly to gun rights?

      • All the more reason to give Trump his second term. Can you imagine the judges oh joe and kamaltoe will appoint?

        • Insanity speaks. Trump would kill our Democracy and trample our liberties. He has said so over and over again. It is all well and good that the Federalist Society has his ear on judges, it is the only saving grace of the shit show of the madman’s rule. We are a hare’s breath shy of 175,000 dead, and still he tells lies and spins tales of his greatness.

        • “Trump would kill our Democracy and trample our liberties”

          Yeah, those MAGA guys rioting in Portland need to be stopped. Get a grip.

        • enuf…you are to freedom and prosperity what a drunk farting gasbag is to fine dining.

          TRUMP/PENCE 2020.

        • “He has said so…” but has he DONE so?

          Again, I’ll consider your claims if you can point me toward something he’s actually done, and how it’s worse than what Democrats have a) promised and b) already done.

  14. how come this Alien SOB is an attorney General, like most aliens they do not understand the American culture and distort it like the Muslims have in Minnesota, and Michigan, then you got the bitch in New York, all these are man haters, 1st generation Alien citizens hate the USA and want too make it like the Imams and parents want { like third world countries }

    • He’s not an alien. He was born in NJ which is I guess technically is apart of the US. The question is why did his parents immigrate here then raise their son to be so hostile to the rights they should be embracing.

  15. This man, Mr. AG, may be a US Citizen, but he is not and never will be an American. What a superb warning about the perils of Civic nationalism!

Comments are closed.