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Ghost gun advocates ask Fifth Circuit to let them fight New Jersey law in Texas court   

Defense Distributed, a Texas nonprofit that publishes instructions for DIY firearms, has clashed with the State Department and numerous state attorneys general who warn it is abetting violent criminals.

(CN) — Fighting a New Jersey law that made sharing instructions for 3D-printed firearms a crime, open-source ghost gun proponents urged a Fifth Circuit panel Tuesday to let their challenge proceed in a Texas federal court.

Texas nonprofit Defense Distributed has battled authorities since 2013, when it posted blueprints for a 3D-printed handgun it dubbed the Liberator on the internet and the State Department promptly demanded it remove them.

Defense Distributed teamed with the Second Amendment Foundation to take on the State Department in court. But the agency, under then-President Donald Trump, agreed to settle in 2018.

The groups are now involved in litigation with New Jersey’s attorney general over a bill passed by state lawmakers in November 2018 that makes it a felony punishable by up to five years in prison to distribute, by any means, digital firearm-making instructions to a person in New Jersey who is not a licensed manufacturer, a law the challengers deride as a “speech crime.”

They sued New Jersey’s AG in Austin federal court and added State Department officials as defendants in an amended complaint, alleging they had violated the settlement.

Concluding he lacked jurisdiction, U.S. District Judge Robert Pitman, a Barack Obama appointee, dismissed the gun-rights groups’ claims against New Jersey’s AG in January 2019.

The groups appealed to the Fifth Circuit, and a panel of the court reversed Pitman’s dismissal order.

Meanwhile, the two nonprofits filed another lawsuit in the District of New Jersey, seeking to block enforcement of the state law.

In April 2021, Pitman granted the New Jersey attorney general's motion to sever the plaintiffs' claims against him from those against State Department officials and transfer them to the New Jersey federal court, which agreed to consolidate the transferred case with the pending New Jersey lawsuit.

The litigation seemed on track to proceed in New Jersey but Defense Distributed and the Second Amendment Foundation, represented by Chad Flores with the Houston firm Beck Redden, once again appealed to the Fifth Circuit.

A three-judge panel of the New Orleans-based appellate court vacated Pitman’s severance-and-transfer order earlier this year, and directed him to request the case be returned to his court and reconsolidated with the related case against State Department officials.

The panel acknowledged, however, that because the Third Circuit oversees the District of New Jersey, the Fifth Circuit lacks authority to force the New Jersey court to send the case back to Austin federal court.

The New Jersey court has since twice refused to send the case back.

Nonetheless, Defense Distributed and the Second Amendment Foundation, arguing the latest Fifth Circuit order revived its case against New Jersey's attorney general in the Texas court, asked Pitman to grant them a preliminary injunction blocking enforcement of the Garden State’s law.

Pitman denied their motion. He held he could not hear their claims until the case was transferred back to his court. And for the third time in the litigation, they appealed to the Fifth Circuit.

U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, jumped right to the crux in Tuesday’s hearing.

“How does the Texas district court have jurisdiction where all of the papers and everything having to do with this case have been sent to New Jersey?" he asked Flores.

“Irrespective of whether that court should have sent those things back, the fact remains that nothing remains in the U.S. district court in Austin,” Smith added.

But Flores disputed Smith’s characterization. He said the groups’ complaint is still live on Pitman’s docket and the judge severing it is “a legal fiction,” since another Fifth Circuit panel later vacated his severance-and-transfer order.  

Due to all the procedural wrangling, Flores said, after four years of litigation – with the case going up multiple times to the Fifth Circuit, and issues in the parallel case in New Jersey being appealed to the Third Circuit – no court has yet to delve into the merits and decide if Defense Distributed and the Second Amendment Foundation should be granted a preliminary injunction against the New Jersey statute.

But Flores said he is confident his clients will prevail.

“This case is going to be won eventually, whether it’s in Texas or in New Jersey. … Eventually this law, these efforts, are going to be declared unconstitutional,” he vowed.

“It's been four years of us trying to get any court to declare that as an interim measure. We’ve gone to every court they’ve [the New Jersey AG’s Office] told us to go to. And every time we go to a court we get a shell game and they say go to the other court,” the attorney continued, urging the panel to quickly grant his clients a preliminary injunction while the appeal plays out.

New Jersey, meanwhile, touched on its merits arguments in a brief in the latest Fifth Circuit case.

It alleged distributing 3D-printed firearm schematics is a national security threat as terrorists could use them to print guns; governments have a strong interest in keeping gun-making files out of the hands of domestic abusers and felons; these firearms’ lack of serial numbers complicates law enforcement’s efforts to solve crimes in which they are involved; and the state’s law only bars distributing the files to people in New Jersey, so it is sufficiently tailored to survive a First Amendment challenge.

But the New Jersey AG’s Office did not respond to the plaintiffs’ injunction request, sticking to its contention the case belongs in federal court in New Jersey, not Texas.

Angela Cai, New Jersey deputy solicitor general, explained the lack of response was strategic, so as not to validate the challengers’ claims that the AG is a proper party in the Texas case.

U.S. Circuit Judge Catharina Haynes, a George W. Bush appointee, injected some levity, telling Cai, “You are saying if we were to grant a preliminary injunction that would be invalid because you aren’t here. But I’m looking at you. You are here.”

“Your honor, we are here purely for the purpose of contesting whether or not we are parties to the proceeding below,” Cai replied. “We are here because this court has jurisdiction to determine whether it has jurisdiction. … We are solely here for the purpose of contesting that jurisdiction.”

“And you’re not in Texas. You’re in New Orleans,” Haynes noted with a chuckle.

“That is true, your honor. That is very true,” Cai said.

U.S. Circuit Judge Rhesa Barksdale, also a George W. Bush appointee, was the third judge on the panel. The judges gave no timeline for a ruling.

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