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Case 1:15-cv-00372-RP Document 103 Filed 07/27/18 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEFENSE DISTRIBUTED ET AL., §
§
Plaintiff, §
§ C.A. NO. 1:15-CV-00372-RP
v. § JURY DEMANDED
§
UNITED STATES DEPT. OF STATE, ET AL, §
§
Defendants. §

PROPOSED INTERVENORS’ SUPPLEMENTAL BRIEFING
IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE

Proposed Intervenors The Brady Campaign to Prevent Gun Violence (“Brady” or “Brady

Campaign”), Everytown for Gun Safety Action Fund, Inc. (“Everytown”) and Giffords,

(collectively “Proposed Intervenors”) filed a Motion for Leave to Intervene in this action, Motion

for Temporary Restraining Order and Preliminary Injunction, and Motion for Emergency Hearing

on Temporary Restraining Order on July 25, 2018. (ECF Nos. 96, 96-1, 97, and 98). This Court

held a telephonic hearing on the motions on July 26, 2018 at 2:30 p.m. (ECF No. 101). At the

hearing, the Court determined that the parties’ interests would be best served by holding a hearing

on July 27, 2018, giving the parties additional time to prepare arguments and submit briefings, if

necessary. Proposed Intervenors respectfully submit this Supplemental Briefing in support of their

Motion for Leave to Intervene. Specifically, Proposed Intervenors would draw the Court’s

attention to 1) the timeliness of their Motion for Leave to Intervene, 2) the significant efforts

Proposed Intervenors have expended since learning of the Settlement Agreement, and 3) the fact

that Defense Distributed intends to post on the Internet numerous and significant files that are not

yet available to the public.
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A. Timeliness of Proposed Intervenors’ Motion for Leave to Intervene

The Fifth Circuit “reject[s] the notion that the date on which the would-be intervenor

became aware of the pendency of the action should be used to determine whether it acted

promptly.” Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994). In fact, the Fifth Circuit urges

lower courts to “discourage premature intervention that wastes judicial resources.” Id. (citing

Stallworth v. Monsanto Co., 558 F.2d 257, 264 (5th Cir. 1977). Instead, courts should gauge a

potential intervenor’s timeliness by “the speed with which the would-be intervenor acted when it

became aware that its interest would no longer be protected by the original parties.” Id.

(emphasis added).

The Government Defendants were protecting Proposed Intervenors’ interest up until the

settlement. See e.g., ECF No. 92 (Motion to Dismiss Plaintiff’s Complaint, filed on April 6, 2018

by the DDTC and the State Department).

On April 30, 2018, Defense Distributed filed a motion to stay this action, due to a tentative

settlement agreement reached by the parties. (ECF No. 93). This half-page motion merely

mentioned the existence of a tentative settlement; it did not mention the substance of said tentative

settlement agreement. Id.

On June 28, 2018, the parties in this action filed a joint status report. (ECF No. 95). This

half-page report simply stated that the relevant governmental officials had approved the parties’

settlement agreement. Id. Again, it did not mention the substance of the settlement agreement.

On July 10, 2018, Everytown and Giffords first learned of the fact of the settlement.

(Declaration of Nicholas Suplina, ¶ 4; Declaration of Alison Damaskos ¶ 3). Giffords learned of

the terms of the Settlement Agreement on July 17, 2018. (Damaskos Dec. ¶ 3). Everytown

received a copy of the Settlement Agreement on or about July 19, 2018. (Suplina Dec. ¶ 6).

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On July 12, 2018, the Brady Campaign first saw excerpts of what was purported to be the

Settlement Agreement. (Declaration of Joshua Scharff ¶ 3). The Brady Campaign only learned of

the agreement’s existence a few days prior to this date. Id.

Each Proposed Intervenor sought intervention within 15 days after learning of the fact of

the Settlement Agreement. Everytown and Giffords sought leave to intervene roughly one week

after learning of the substance of the Settlement Agreement. It is unquestionable that Proposed

Intervenors acted promptly in seeking leave to intervene, upon learning that the Government was

no longer protecting their interests.

B. Proposed Intervenors have expended significant efforts counteracting the parties’
conduct.

An organization can demonstrate standing in its own right if it can show 1) it has diverted

significant resources to counteract the defendant’s conduct and, 2) there is a serious conflict

between the organization’s mission and the conflict at issue. Am. Civ. Rights Union v. Martinez-

Rivera, 166 F. Supp. 3d 779, 788 (W.D. Tex. 2015). Proposed Intervenors have diverted significant

resources to counteract the Settlement Agreement and the proliferation of 3-D printed guns.

i. Everytown has expended significant resources and is committed to counteracting
gun violence.

Everytown has i) researched 3-D gun printing technology, feasibility and availability; ii)

researched the potential implications of making 3-D gun printing technology widely available; iii)

evaluated proposed legislation to address these issues; iv) created an information sheet to educate

the public on the development and implication of this case and the spread of 3-D firearms printing

technology; v) drafted emails, letters, and texts to supporters, members, legislators, and other allies

concerning these issues; vi) created and deployed social media content concerning these issues;

and vii) evaluated and implemented litigation strategies to prevent the above. (Suplina Dec. ¶ 7).

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Were it not for the efforts expended to counteract the Settlement Agreement, Everytown

would have devoted its resources to other gun violence prevention programs. Additionally, if the

Settlement Agreement were to go into effect, Everytown would be forced to continue this

expenditure of resources to counteract the consequences of the Settlement Agreement, including

by i) studying how to make gun safety laws effective against 3-D weapons, ii) working to pass

legislation to prohibit the manufacture of 3-D weapons, and iii) working with victims who will be

impacted by the loss of loved ones to 3-D weapons. (Suplina Dec. ¶¶ 7, 8).

Everytown works in all 50 states and in Congress to support the passage and enforcement

of gun safety laws that, among other things, help keep guns out of the hands of prohibited persons

and other individuals with dangerous histories and help law enforcement apprehend and prosecute

those who violate U.S. and state gun laws. (Suplina Dec. ¶ 3). There is a serious conflict between

Everytown’s mission and implementation of the Settlement Agreement.

ii. Efforts expended by Brady to counteract the parties’ conduct.

Before learning of the Settlement Agreement, Brady expended substantial efforts and

diverted resources to (i) researching, drafting, and submitting an amicus brief in this litigation; and

(ii) researching, drafting, and submitting Comments to the Department of State Proposed Rule to

Amend the International Traffic in Arms Regulations: U.S. Munitions List Categories I, II, and III

and the Department of Commerce Proposed Rule Regarding Control of Firearms, Guns,

Ammunition and Related Articles the President Determines No Longer Warrant Control Under the

United States Munitions List. (Scharff Dec. ¶ 6).

Since learning of the Settlement Agreement, Brady has expended substantial efforts and

diverted significant resources to the issue of preventing the spread of 3-D printed firearms,

including: (i) drafting and submitting two FOIA requests regarding the Settlement Agreement and

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its surrounding circumstances; (ii) internally researching the issue, its reach, and its dangers; (iii)

educating and updating others about the issue, including individuals and organizations in fields

such as gun violence prevention, public health, and public service; (iv) communicating with Brady

supporters, members, legislators and the public regarding the dangers of 3-D printed firearms; as

well as (v) work related to bringing the instant legal action. (Scharff Dec. ¶ 5).

If Brady had not diverted substantial resources toward this issue, Brady would have been

able to expend these resources in furtherance of its mission to create a safer future for every

American where hundreds of gun injuries and deaths a day are no longer normal, including by (i)

working on the following impact-driven solutions on which it focuses to further its mission of

reducing gun deaths: a) strengthening gun laws, with a particular focus on the national background

check system, b) reducing the flow of crime guns to urban communities most impacted by gun

violence, and c) meaningfully communicating to gun owners about the dangers of loaded, unlocked

guns in the home; (ii) fighting in the courts to defend gun laws and effective gun violence

prevention policies, including filing amicus briefs, often along with law enforcement and other

groups, as well as this case; (iii) challenging laws and policies that exacerbate gun violence; (iv)

providing direct legal advocacy on behalf of victims and communities affected by gun violence.

(Scharff Dec. ¶ 7).

For over 40 years, Brady has worked to prevent gun violence, including working with

members spread across all fifty states and the District of Columbia, and established membership

groups in Austin, TX and Houston, TX. (Scharff Dec. ¶ 2). There is a serious conflict between

Brady’s mission and implementation of the Settlement Agreement.

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iii. Efforts expended by Giffords to counteract the parties’ conduct.

Giffords has expended substantial efforts and diverted significant resources to the issue of

preventing the spread of 3-D printed firearms since learning of the Settlement Agreement,

including: i) advising state and local law enforcement agencies about the impending publication

of the CAD files at issue so that they can take appropriate steps to counter and reduce the risk such

files pose and can prepare investigative and enforcement strategies in the event that weapons

produced using the CAD files at issue are used in, or recovered as evidence from, crimes within

their jurisdictions; ii) communicating with print, digital, and broadcast journalists to further

educate the public, including explaining a) the existing statutory regimes concerning downloadable

firearms, b) prior and recent developments in this matter, including in particular the settlement, c)

the public safety and national security dangers that will follow from the publication of the CAD

files at issue in this matter, and d) what steps can be taken to mitigate the dangers; iii) focusing on

a public education initiative that provides information about the developments in this matter, the

threat posed by downloadable firearms, and what steps members of the public can take to make

their voice heard and mobilize on this issue; iv) educating federal, state, and local lawmakers about

the consequences of the settlement in this matter and the threat that 3D-printed firearms pose to

public safety and national security; and v) working with lawmakers to craft appropriate policy

responses to these threats at the federal and state level. (Damaskos Dec. ¶¶ 6-9).

The legal, government affairs, and communications departments in Giffords and its sister

organization, Giffords Law Center to Prevent Gun Violence, have been redirected from other

projects to address the pending publication of CAD files that would enable the manufacture of

firearms using 3D-printing machines. Were it not for the defendants’ reversal of course in this

litigation and the unprecedented threat to public safety and national security that will result if the

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settlement takes effect, these resources would have been devoted to other gun violence prevention

efforts. (Damaskos Dec. ¶¶ 4-5).

In the event that the settlement agreement were to go into effect and 3-D gun printing

technology were made widely available, Giffords would be forced to continue to divert extensive

resources to address the threats posed by widely available 3-D printed guns, including the activities

they have been engaged in since learning of the settlement. (Damaskos Dec. ¶ 10).

C. Defense Distributed Intends to Post Numerous and Significant New Files on the Internet.

Defense Distributed and Cody Wilson have confirmed through public announcements,

media statements, and this litigation that they plan to release technical information that is not yet

available on the Internet and that will enable the manufacture of firearms. The Defense Distributed

website announces that August 1, 2018, the day DEFCAD is relaunched, is the day that “[t]he age

of the downloadable gun formally begins.” See https://defdist.org/ (last visited July 26, 2018).

A July 10, 2018 news article reports that the relaunched Defense Distributed website will

include “a repository of firearm blueprints they’ve been privately creating and collecting, from the

original one-shot 3-D-printable pistol he fired in 2013 to AR-15 frames and more exotic DIY semi-

automatic weapons.” Andy Greenberg, A Landmark Legal Shift Opens Pandora’s Box for DIY

Guns, Wired (July 10, 2018), available at https://www.wired.com/story/a-landmark-legal-shift-

opens-pandoras-box-for-diy-guns/. The article quotes Wilson to say that Defense Distributed has

been creating a vast library of new design files: “We’re doing the encyclopedic work of collecting

this data and putting it into the commons[.] [ ] What’s about to happen is a Cambrian explosion of

the digital content related to firearms.” Id. One report relates that “[t]hroughout the litigation,

[Wilson] developed a trove of other 3-D printable weapon blueprints, including Assembly AR-15s

and AR-10s.” Deanna Paul, Meet the man who might have brought on the age of ‘downloadable

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guns’, Washington Post (July 18, 2018), available at https://www.washingtonpost.com/news/post-

nation/wp/2018/07/18/meet-the-man-who-wants-to-bring-on-the-age-of-downloadable-guns-and-

may-have-already-succeeded/?utm_term=.3fc838e31666. Another story relates that Wilson

recognizes that the yet-to-be-released technical information is markedly advanced compared to the

files released in 2013 because, although those older files may still be available on the dark web,

those files may be piecemeal and not always reliable. Tess Owen, Get Ready for the New Era of

3D-Printed Guns Starting August 1, Vice News (July 18, 2018), available at

https://news.vice.com/en_us/article/ev8xjn/get-ready-for-the-new-era-of-3d-printed-guns-

starting-august-1.

The plaintiffs’ second amended complaint directly claims that new files have been created

that have yet to become publicly available: “Defense Distributed has and will continue to create

and possess other files that contain technical information, to include design drawings, rendered

images, written manufacturing instructions, and other technical information that Defense

Distributed intends to post to public forums on the Internet.” Second Amended Complaint, ¶ 44,

filed Mar. 16, 2018 (ECF No. 90).

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Dated: July 27, 2018 Respectfully submitted,

/s/ David Cabello
J. David Cabello
Blank Rome LLP
Texas State Bar No. 03574500
717 Texas Avenue
Suite 1400
Houston, TX 77002
Telephone: (713) 228-6601
Facsimile: (713) 228 6605
E-mail: dcabello@blankrome.com

John D. Kimball (pending pro hac vice)
Blank Rome LLP
N.Y. Bar No. 1416031
The Chrysler Building
405 Lexington Ave.
New York, NY 10174
(212) 885-5000

Attorneys for Proposed Intervenors

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a) on July 27, 2018, and was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(b)(1).

/s/Domingo M. LLagostera
Domingo M. LLagostera
Attorney

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