AG Herring continues fight to block 3D-printed guns

RICHMOND (February 25, 2021) – Attorney General Mark R. Herring has joined a coalition of 21 attorneys general in fighting a lawsuit that seeks to stop states from enforcing their laws against a company disseminating dangerous 3D-printed gun files on the internet. In an amicus brief filed in Grewal v. Defense Distributed before the U.S. Supreme Court, Attorney General Herring and his colleagues seek to protect states’ efforts to stop Defense Distributed from unlawfully publishing easily-downloadable files on the internet that provide the instructions to build dangerous 3D-printed firearms, including assault weapons. These files would allow plug-and-play access to 3D-print unregistered, untraceable firearms that can also be very difficult to detect, even with a metal detector.

“3D-printed guns are incredibly dangerous and can sometimes even be virtually impossible to detect,” said Attorney General Herring. “States must have the ability to enforce their own laws, especially when those laws were created in order to protect their communities and keep their citizens safe. The reckless dissemination of these 3D-printed gun files online could mean that these firearms end up in the hands of dangerous individuals and we must do everything we can to make sure that doesn’t happen.”

For years, Defense Distributed has attempted to widely disseminate dangerous internet files that give individuals the ability to manufacture unregistered and untraceable 3D-printed firearms that can be extremely difficult to detect, even with a metal detector. A number of state and local officials sent the company cease and desist letters ordering the company to stop breaking state laws. Defense Distributed then sued the officials in federal court in Texas, but ultimately only pursued its case against New Jersey’s attorney general. After the U.S. Court of Appeals for the Fifth Circuit found that Texas courts had personal jurisdiction over New Jersey’s attorney general, the attorney general petitioned the Supreme Court to take up the case.

In the amicus brief, Attorney General Herring and his colleagues argue that cease and desist letters are critical and cost-effective tools for enforcing state law, and, in the internet age, state and local officials increasingly must direct such cease and desist letters out of state. Because out-of-state entities, like Defense Distributed, operate online and, therefore, operate across state lines, state officials cannot protect their residents from violations of their own state’s laws by such entities without being able to send cease and desist letters out of state.

Additionally, Attorney General Herring and his colleagues argue that the Fifth Circuit failed to account for critical state-sovereignty and federalism considerations when it found that the Texas courts had personal jurisdiction over New Jersey — in violation of longstanding Supreme Court precedent set out in cases, such as World-Wide Volkswagen Corp. v. Woodson. Specifically, the federalism principles underpinning that precedent do not permit the recipient of a cease and desist letter from an out-of-state official to sue the official in the recipient’s home state when the letter was sent from the official’s home state, and the official is simply enforcing his or her own state’s laws as applied to the recipient’s activities in the official’s home state. The coalition makes clear that permitting suits in such circumstances — as the Fifth Circuit did here — forces a state official to risk burdensome and expensive lawsuits in a foreign forum as the cost of protecting state residents from an entity that is reaching into the official’s state and violating that state’s laws. Putting a state official to that choice undermines state sovereignty and harms the public interests of the official’s state by chilling legitimate law-enforcement efforts or else dramatically increasing the costs of those efforts, including by encouraging premature lawsuits against states in courts that lack expertise and a stake in the relevant state’s law.

Attorney General Herring and his colleagues are asking the Supreme Court to review the Fifth Circuit’s decision, and ultimately to order the dismissal of Defense Distributed’s case in Texas for lack of personal jurisdiction.

In January 2020, Attorney General Herring filed a lawsuit challenging the Trump Administration’s efforts to allow 3D-printed gun files to be released on the internet. Previously, Attorney General Herring and his colleagues won a preliminary injunction blocking the Trump Administration’s prior attempt to allow the release of the files.

Additionally, Attorney General Herring supported legislation during this year’s General Assembly session that would make it a class 5 felony for anyone to manufacture, import, sell, transfer, or possess any firearm that’s untraceable, including 3D-printed guns.

Joining Attorney General Herring in filing this amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.