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From Products Liability Law Daily, August 29, 2018

TRO blocking downloadable 3D-printed ‘ghost guns’ converted to preliminary injunction

By Colleen Kave, J.D.

The United States District Court for the Western District of Washington extended an order blocking the Trump Administration’s decision to implement or enforce a modification of the United States Munitions List (USML) that would allow distribution of computer-aided design (CAD) files for the automated production of untraceable, undetectable, plastic 3D-printed weapons. According to a news release from the Washington State Office of the Attorney General, U.S. District Court Judge Robert Lasnik enjoined the distribution of CAD files for 3D-printed weapons until the matter can be resolved in court (Washington State Office of the Attorney General News Release, August 27, 2018).

Washington State Attorney General Bob Ferguson praised the court’s action, stating, "[o]nce again, I’m glad we put a stop to this dangerous policy… But I have to ask a simple question: why is the Trump Administration working so hard to allow these untraceable, undetectable 3D-printed guns to be available to domestic abusers, felons, and terrorists?"

Background. In 2015, Defense Distributed—an organization dedicated to global distribution of open-source, downloadable 3D-printed guns—filed suit against the federal government after the State Department mandated removal of the organization’s 3D-printed weapon instruction manuals from the Internet. The U.S. District Court for the Western District of Texas upheld the government’s regulation of Defense Distributed’s materials, finding that global access to firearms undoubtedly would increase the possibility of conflict. An appeal of that decision was rejected, and the U.S. Supreme Court declined to hear the case. Subsequently, in April 2018, the federal government moved to dismiss the lawsuit, arguing that if the dissemination of downloadable guns is not regulated, 3D-printed weapons could be used to threaten U.S. national security and U.S. foreign policy interests, as well as international peace and stability [see Products Liability Law Daily’s July 31, 2018 analysis].

However, a few weeks later, Defense Distributed announced that the federal government had settled the case on June 29, 2018. Pursuant to the settlement agreement, which was not made public until July 10, the federal government agreed to publish a notice of proposed rulemaking and final rule revising the USML to allow the distribution of CAD files for 3D-printed weapons, to announce a temporary modification of the USML to allow such distribution while the final rule was in development, and to issue a letter to Defense Distributed and other defendants instructing that the CAD files were approved for public release and unlimited distribution.

Preliminary injunction. On July 31, 2018, in response to a motion filed by eight states and the District of Columbia, Judge Lasnik issued a temporary restraining order (TRO) blocking the pending release of the plans on the Internet [see Products Liability Law Daily’s August 1, 2018 analysis]. On Monday, he converted the TRO to a preliminary injunction. Remarking on the necessity of the injunction, Judge Lasnik wrote:

Finally, the federal defendants argue that the States will not be harmed at all because the United States is committed to enforcing the Undetectable Firearms Act of 1988. While the Court appreciates the earnestness with which this commitment was made at oral argument, it is of small comfort to know that, once an undetectable firearm has been used to kill a citizen of Delaware or Rhode Island or Vermont, the federal government will seek to prosecute a weapons charge in federal court while the State pursues a murder conviction in state court. The very purpose for which the private defendants seek to release this technical data is to arm every citizen outside of the government’s traditional control mechanisms of licenses, serial numbers, and registration. It is the untraceable and undetectable nature of these small firearms that poses a unique danger. Promising to detect the undetectable while at the same time removing a significant regulatory hurdle to the proliferation of these weapons—both domestically and internationally—rings hollow and in no way ameliorates, much less avoids, the harms that are likely to befall the States if an injunction is not issued.

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