Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 1 of 82 1 The Honorable Robert S. Lasnik 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE STATE OF WASHINGTON; STATE OF CONNECTICUT; STATE OF MARYLAND; STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF OREGON; COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF PENNSYLVANIA; DISTRICT OF COLUMBIA; STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF IOWA; STATE OF MINNESOTA; STATE OF NORTH CAROLINA; STATE OF RHODE ISLAND; STATE OF VERMONT and STATE OF VIRGINIA, Plaintiffs, v. NO. 2:18-cv-01115-RSL FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 17 18 19 20 21 22 23 24 UNITED STATES DEPARTMENT OF STATE; MICHAEL R. POMPEO, in his official capacity as Secretary of State; DIRECTORATE OF DEFENSE TRADE CONTROLS; MIKE MILLER, in his official capacity as Acting Deputy Assistant Secretary of Defense Trade Controls; SARAH HEIDEMA, in her official capacity as Director of Policy, Office of Defense Trade Controls Policy; DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION, INC.; AND CONN WILLIAMSON, Defendants. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 2 of 82 1 Plaintiffs the State of Washington, State of Connecticut, State of Oregon, State of 2 Maryland, State of New Jersey, State of New York, Commonwealth of Massachusetts, 3 Commonwealth of Pennsylvania and the District of Columbia, State of California, 4 State of Colorado, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, 5 State of Minnesota, State of North Carolina, State of Rhode Island, State of Vermont, and 6 State of Virginia (the “States”) bring this lawsuit against Defendants United States Department 7 of State, Michael R. Pompeo, Directorate of Defense Controls, Mike Miller, and Sarah Heidema 8 (the “Government Defendants”); as well as Defense Distributed, Second Amendment 9 Foundation, Inc., and Conn Williamson. I. 10 11 1. INTRODUCTION This case addresses the threat that downloadable guns, in the form of Computer 1 12 Aided Design (CAD) files for the automated production of firearms using a 3-D printer 13 imminently be released on the internet, making these weapons available to virtually anyone. 3-D 14 printed guns are functional weapons that are often unrecognizable by standard metal detectors 15 because they are made out of materials other than metal (e.g., plastic) and untraceable because 16 they contain no serial numbers. Anyone with access to the CAD files and a commercially 17 available 3-D printer could readily manufacture, possess, or sell such a weapon—even those 18 persons statutorily ineligible to possess firearms, including violent felons, the mentally ill and 19 persons subject to protection and no-contact orders. This serious threat to the national security 20 and to public safety in the State of Washington was caused by the Federal Government’s covert 21 and ultra vires regulatory about-face, in violation of the Administrative Procedure Act (APA) 22 and the Tenth Amendment to the U.S. Constitution.Until recently, the Federal Government 23 24 , will 1 3-D printing refers to technology that allows a person to make a three dimensional product using a digital file or software in conjunction with a printer that is directed by the software. See, e.g. , https://3dprinting.com/whatis-3d-printing/ (last visited July 30, 2018). FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 3 of 82 1 prohibited the distribution of CAD files for the automated production of 3-D printed weapons 2 by including such files on the United States Munitions List (USML) and making them subject to 3 the International Traffic in Arms Regulations (ITAR), which are administered by the Directorate 4 of Defense Trade Controls (DDTC) within the Department of State. As recently as April of this 5 year, the Government’s position was that if such CAD files were distributed via the internet, they 6 could be “easily used overseas to make firearms that are subject to U.S. export controls”, where, 7 “beyond the reach of U.S. law, they could be used to threaten U.S. national security, U.S. foreign 8 policy interests, or international peace and stability.” 9 2. In June 2018, however, the Government completely reversed its position on the 10 dissemination of the CAD files—not publicly or in accordance with a valid administrative 11 process, but by entering an under-the-radar settlement with a private company known as Defense 12 Distributed (DD). Defense Distributed v. U.S. Dept. of, 15-CV-372 RP (W.D. Texas). State 13 Defense Distributed’s stated objective is to ensure global, unrestricted access to firearms by 14 posting its CAD files online so that virtually everyone will have access to a “downloadable gun.” 15 As part of the Settlement Agreement, the Government promised to: (i) draft and fully pursue a 16 notice of rulemaking and a final rule to remove the CAD files at issue from ITAR jurisdiction; 17 (ii) temporarily modify Category I of the USML to exclude the files at issue from ITAR; (iii) 18 issue a letter to Defense Distributed advising that its files are exempt from ITAR and “approved 19 for public release (i.e., unlimited distribution)”; and (iv) permit “any United States person” to 20 “use, reproduce or otherwise benefit from” the files at issue. 21 3. On July 27, 2018, in accordance with the Settlement Agreement, DDTC 22 published a “Temporary Modification of Category I of the United States Munitions List” that 23 permits the dissemination of certain CAD files in Defense Distributed’s possession, including 24 files used to create undetectable and untraceable weapons, as well as a tabletop gun-milling FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 4 of 82 1 machine called the “Ghost Gunner.” This deregulation also applies to other files for the 2 automated production of 3-D printed weapons that may be developed or acquired by Defense 3 Distributed in the future. 4 4. Although the Government’s deregulation of the CAD files in question is 5 nominally “temporary,” it permits Defense Distributed’s founder, self-described “crypto- 6 anarchist” Cody Wilson—and anyone else—to immediately disseminate the files by making 7 them available for download via the internet. Wilson and Defense Distributed have announced 8 that they intend to release the files on August 1, 2018. As of that point, the files will be, 9 practically speaking, irretrievable, because they will have been posted on the internet—a bell 10 that cannot be un-rung: 11 12 13 14 15 16 17 Source: https://defcad.com (accessed July 28, 2018). 5. The files that Defense Distributed intends to make available for download as of 18 August 1, 2018 include CAD files that can be used to manufacture a variety of weapons, 19 including AR-15 frames2 and a 3-D printed pistol known as the “Liberator”, as well as a 20 “computer-controlled milling machine” called the “Ghost Gunner,” which is designed to allow 21 its owner to carve gun parts out of aluminum: 22 23 24 2 An AR-15 is a semi-automatic rifle that is the civilian equivalent of the M-16 and the weapon of choice for many mass shooters. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 4 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 5 of 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Source: https://defcad.com (accessed July 28, 2018). 6. According to news reports,3 the Defense Distributed website’s repository of downloadable-gun files will also include “more exotic DIY semi-automatic weapons.” “The relaunched site will be open to user contribution, too; Wilson hopes it will soon serve as a searchable, user-generated database of practically any firearm imaginable.” According to Wilson: “What’s about to happen is a Cambrian explosion of the digital content related to firearms.” Wilson says: “All this Parkland stuff, the students, all these dreams of ‘common sense gun reforms’? No. The internet will serve guns, the gun is downloadable . . . No amount of petitions or die-ins or anything else can change that.” 7. The Government entered into the Settlement Agreement in contravention of the statutes and regulations which govern the export designation process. Among other things, upon 22 23 24 3 Andy Greenberg, A Landmark :egal Shift Opens Pandora’s Box for DIY , (July Guns 18, 2018) Wired, availableat https://www.wired.com/story/a-landmark-legal-shift-opens-pandoras-box-for-diy-guns/, attached hereto as Ex. 1. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 5 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 6 of 82 1 information and belief, the State Department: (i) has not provided the relevant Congressional 2 committees with the required 30 days’ notice to “temporarily” modify the USML or to achieve 3 the same thing via approval for public release of the information pursuant to 22 C.R.F. 4 §125.4(b)(13); (ii) has not received the concurrence of the Secretary of Defense to “temporarily” 5 change the designation of the files at issue; and (iii) has not followed established commodity 6 jurisdiction procedures before agreeing to “temporarily” exempt the CAD files at issue from 7 ITAR. 8 8. The “temporary modification” of USML Category I and approval for public 9 release of the information pursuant 22 C.F.R. §125.4(b)(13) are especially troubling because it 10 involves making CAD files available on the internet, which largely overrides the later need to 11 formally modify the relevant rules. Moreover, the “temporary modification” on its face applies 12 to recently developed files that the Government has presumably not even seen or evaluated, as 13 well as files that may be developed in the future. 14 9. In addition, the Government has acted in an arbitrary and capricious manner, and 15 has abused its discretion, by (i) failing to consider evidence relevant to ITAR jurisdiction over 16 the CAD files; (ii) drastically changing long-established practice and policy without any 17 explanation or sufficient notice; and (iii) failing to study the national- and state-security 18 implications of exempting the CAD files from ITAR. 19 Government has made no determination regarding the national security implications of the 20 agreement, or its effects on sovereign U.S. states’ ability to protect the safety of those within 21 their borders. 22 10. Upon information and belief, the Tellingly, even the notices of proposed rules to amend the ITAR, which the 23 Departments of State and Commerce published on May 24, 2018, make no mention of the 24 dangers posed by the files falling into the hands of terrorist organizations, insurgent groups, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 6 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 7 of 82 1 transnational organized criminal organizations, or countries subject to the U.S. or U.N. arms 2 embargoes. 3 11. The Government Defendants’ unlawful actions—if allowed to stand—will lead 4 to the proliferation of untraceable printed guns overseas and within the United States. 5 Domestically, the proliferation of these guns also threatens to cripple the various States’ 6 extensive and comprehensive systems of firearms regulations designed to keep guns out of the 7 wrong hands. 8 12. For all these reasons, and others detailed below, the Government Defendants have 9 violated the Administrative Procedure Act (APA) and the Tenth Amendment of the U.S. 10 Constitution, which reserves police power to the states. The Plaintiff States seek a declaration 11 that the “temporary modification” of the USML Category I (which constitutes a final agency 12 action) is invalid, and an injunction requiring the Government Defendants to rescind the 13 temporary modification and refrain from acting in a manner inconsistent with such rescission. II. 14 15 16 17 13. JURISDICTION AND VENUE This Court has jurisdiction over this matter and the parties hereto pursuant to 28 U.S.C. §§ 1331, 2201, and 2202. 14. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e) because the Plaintiff 18 is located here and a substantial part of the events or omissions giving rise to the claim occurred 19 or will imminently occur here. In particular, the dissemination of the CAD files in question will 20 have an adverse impact on the public safety in the City of Seattle and King County, Washington, 21 which are located in this district. SeeDeclarations of King County Sheriff Mitzi Johanknecht 22 (attached hereto as Exhibit 2) and Seattle Police Chief Carmen Best (attached hereto as Exhibit 23 3). Also, Defendant Second Amendment Foundation, Inc. is located in Bellevue, Washington. 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 7 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 8 of 82 III. 1 2 15. PARTIES The States of Washington, Connecticut, Maryland, New Jersey, New York, 3 Oregon, California, Colorado, Delaware, Hawaii, Illinois, Iowa, Minnesota, North Carolina, 4 Rhode Island, Vermont and Virginia, the Commonwealths of Massachusetts and Pennsylvania 5 (Plaintiff States) and the District of Columbia, represented by and through their respective 6 Attorneys General, are sovereign states of the United States of America. The security of the 7 Plaintiff States is threatened by the Government’s deregulation of CAD files for the automated 8 production of 3-D printed weapons via the “temporary modification” of the USML Category I. 9 The “temporary modification” is also a direct attack on the State’s sovereign power to protect 10 the safety of those within its borders, including the power to enact and enforce laws related to 11 the ownership and use of firearms. The States bring this action to redress harms to their quasi 12 sovereign authority, proprietary interests, and interests as parens patriae . 13 16. The States have a quasi-sovereign interest in protecting the security and well- 14 being of their residents. “The States . . . perform many of the vital functions of modern 15 government – punishing street crime, running public schools, and zoning property for 16 development, to name but a few – even though the Constitution’s text does not authorize any 17 government to do so. Our cases refer to this general power of governing, possessed by the States 18 but not by the Federal Government, as the ‘police power.’ ”Nat’l Fed’n of Indep. Bus. v. 19 Sebelius , 567 U.S. 519, 535-36 (2012). Ensuring the safety of their residents from untraceable, 20 undetectable weapons is one of the police powers of the States. 21 17. The Government Defendants’ authorization of the release of CAD files for the 22 automated production of 3-D printed weapons diminishes the States’ sovereignty by seriously 23 jeopardizing the States’ ability to enforce their public safety laws, including those regulating 24 who may possess firearms; what type of firearms and weapons they may possess; the manner in FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 8 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 9 of 82 1 which firearms may be used; and the purchase and sale of firearms, including tracking serial 2 numbers and ownership information. In addition, the imminent widespread availability of 3 undetectable and untraceable weapons will make it far more difficult for the States to protect the 4 safety of those within their borders, including through effective law enforcement measures that 5 depend on the ability to track and forensically identify weapons, and the use of metal detectors 6 in government buildings and other public places. 7 18. The States have proprietary interests in their treasuries, the integrity of their borders, 8 the safety of their jails and prisons, and the efficient performance of the work of their employees and 9 officials. The Government Defendants’ actions harm these interests. The Government Defendants’ 10 actions harm the States by increasing access through their borders of undetectable firearms. Their 11 actions threaten state and county prison safety by facilitating the smuggling of undetectable weapons 12 into prisons and jails. The Government Defendants’ actions threaten state and county prison 13 safety by easing access in their borders to undetectable firearms. Their actions make the States’ 14 state, county, and local detective work solving crimes more difficult by increasing access to 15 untraceable and undetectable guns. Their actions also impede the States executive protection 16 responsibilities. Further, the States – and border states like Washington in particular – spend 17 substantial sums of State taxpayer money to protect their residents from terrorist attacks. 18 Defendants’ actions enhance the risk of terrorist attacks. This risk is not hypothetical; in 2001, 19 Ahmed Ressam was convicted of planning to bomb the Los Angeles International Airport on 20 New Year’s Eve 1999, as part of the foiled 2000 millennium attack plots. Ressam entered the 21 United States by taking the car and passenger ferry M/V Cohofrom Victoria, British Columbia 22 to Port Angeles, Washington, where he was apprehended. 23 24 19. Defendant the United States Department of State (State Department) is the executive agency of the United States government responsible for administering and enforcing FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 9 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 10 of 82 1 the ITAR under the authority of the Arms Export Control Act (AECA). The State Department is 2 a party to the Settlement Agreement with Defense Distributed. 3 20. Defendant Michael R. Pompeo is sued in his official capacity as the Secretary of 4 State. In this capacity, he is responsible for the operation and management of the State 5 Department, including the operation and management of the Directorate of Defense Trade 6 Controls (DDTC) and administration and enforcement of the ITAR. The Secretary of State is a 7 party to the Settlement Agreement with Defense Distributed. 8 21. Defendant DDTC is a subordinate unit within the Department of State Bureau of 9 Political and Military Affairs responsible for administering and enforcing the ITAR. The DDTC 10 enacted the “temporary modification” of the USML Category I, and is a party to the Settlement 11 Agreement with Defense Distributed. 12 22. Defendant Mike Miller is sued in his official capacity as the Acting Deputy 13 Assistant Secretary of Defense Trade Controls. The Acting Deputy Assistant Secretary is a party 14 to the Settlement Agreement with Defense Distributed. 15 23. Defendant Sarah Heidema is sued in her official capacity as the Director, Office 16 of Defense Trade Controls Policy. The Director, Office of Defense Trade Controls Policy is a 17 party to the Settlement Agreement with Defense Distributed. 18 24. Defendant Defense Distributed is a Texas corporation whose headquarters and 19 principal place of business are located in Austin, Texas. Upon information and belief, Defense 20 Distributed advertises and sells items over the internet throughout the nation, including in 21 Washington. Defense Distributed also intends to make available for download from the internet 22 as of August 1, 2018 the CAD files at issue in this Complaint, and these downloads would be 23 available in Washington. Defense Distributed is a necessary party as the Settlement Agreement 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 10 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 11 of 82 1 that it entered into with the other Defendants may be affected by the requested relief, and this 2 may impede Defense Distributed’s interests under that Settlement Agreement. 3 25. Defendant Second Amendment Foundation, Inc. is a non-profit organization 4 incorporated under the laws of Washington with its principal place of business in Bellevue, 5 Washington. The Second Amendment Foundation is a necessary party as the Settlement 6 Agreement that it entered into with the other Defendants may be affected by the requested relief, 7 and this may impede the Second Amendment Foundation’s interests under that Settlement 8 Agreement. 9 26. Conn Williamson is a citizen of the State of Washington. Mr. Williamson is a 10 necessary party as the Settlement Agreement that he entered into with the other Defendants may 11 be affected by the requested relief, and this may impede Mr. Williamson’s interests under that 12 Settlement Agreement. IV. 13 14 15 A. ALLEGATIONS The Statutory and Regulatory Framework 27. The Arms Export Control Act (AECA), 22 U.S.C. § 2751 et seq ., authorizes the 16 President, “[i]n furtherance of world peace and the security and foreign policy of the United 17 States . . . to control the import and the export of defense articles and defense services.” 18 22 U.S.C. § 2778(a)(1). The purpose of the AECA is to reduce the international trade in arms 19 and avoid destabilizing effects abroad through arms exports. 22 U.S.C. § 2751. 20 28. Under the AECA, “[t]he President is authorized to designate those items which 21 shall be considered as defense articles and defense services for the purposes of this section and 22 to promulgate regulations for the import and export of such articles and services.” 22 U.S.C. § 23 2778(a)(1). Items designated as defense articles or services constitute the United States 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 11 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 12 of 82 1 Munitions List (USML). Id. at § 2778(a)(1). Category I of the USML lists articles, services, 2 and related technical data for “Firearms, Close Assault Weapons and Combat Shotguns.” 3 29. Among other things, Category I of the USML includes all firearms up to .50 See22 C.F.R. § 121.1(I)(a). 4 caliber, and all technical data directly related to such firearms. 5 “Technical data” is information that “is required for the design, development, production, 6 manufacture, assembly, operation, repair, testing, maintenance or modification of defense 7 articles.” Id. § 120.10(a). Technical data includes “information in the form of blueprints, 8 drawings, photographs, plans, instructions or documentation” . § 120.10. 9 30. As former Director of the Office of Defense Trade Controls Management Lisa V. 10 Aguirre stated in a 2015 declaration filed in federal court, “the ‘technical data’ provisions serve 11 the purpose of limiting the export of detailed information needed to manufacture, maintain, or 12 operate defense articles controlled on the USML. Defense Distributed v. U.S. Dept. of 15-State, 13 CV-372 RP Dkt. 32-1 ¶ 14(d). Such export limitations advance the purposes of the AECA by 14 limiting the ability of foreign powers to design, develop, and produce defense articles in lieu of 15 being able to obtain those articles directly. Absent the inclusion of technical data in the ITAR, 16 the ITAR’s limits on arms transfers would be of negligible practical effect because the ITAR 17 would leave unregulated the exportation of the fundamental technology, know-how, blueprints, 18 and other design information sufficient for foreign powers to construct, produce, manufacture, 19 maintain, and operate the very same equipment regulated in its physical form by the ITAR.” Id. 20 31. Pursuant to Executive Order 13637, the President has delegated his AECA 21 authority to the State Department. In turn, the State Department has promulgated the ITAR, 22 which is administered by the DDTC. See22 C.F.R. §§ 120-130. Among other things, the DDTC 23 is tasked with maintaining, reviewing and clarifying the USML. 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 12 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 13 of 82 1 32. Pursuant to Executive Order 13637, section 1(n), “[d]esignations including 2 changes in designations, by the Secretary of items or categories that shall be considered as 3 defense articles and defense services subject to export control under section 38 (22 U.S.C. 2778) 4 shall have the concurrence of the Secretary of Defense.” 5 33. In addition, the Executive Branch must give notice to the International Relations 6 Committee of the House of Representatives and to the Committee on Foreign Relations of the 7 Senate at least 30 days in advance of removing an item from the USML. 22 U.S.C. § 2778(f)(1). 8 Such notification must be made in accordance with the procedures applicable to reprogramming 9 notifications under section 634A(a) of the Foreign Assistance Act of 1961, 22 U.S.C. § 2394-1. 10 11 Id. 34. Subject to the procedural requirements above and other provisions of AECA, 12 ITAR allows the Deputy Assistant Secretary for Defense Trade Controls to order the temporary 13 modification of any ITAR regulation. However, it may do so only “in the interest of the security 14 and foreign policy of the United States”—not merely as an interim measure before a final rule 15 can be passed. 22 C.F.R. § 126.2. 16 35. For situations where there is doubt that a particular item to be exported falls on 17 the USML, ITAR contains a commodity jurisdiction (CJ) procedure. 22 C.F.R. § 120.4. Upon 18 written request, the DDTC will provide a determination as to whether a certain item, service, or 19 data is within the jurisdiction of ITAR. Id. 20 36. As the Director Aguirre explained in her 2015 declaration, the CJ determination 21 “entails consultation among the Department of State, Defense, Commerce and other U.S. 22 Government agencies and industry in appropriate cases.” Ex. 4 ¶ 19. Assessments are made on 23 a case-by-case basis, evaluating whether the article is covered by the USML, is functionally 24 equivalent to an article on the USML, or has substantial military or intelligence application. A FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 13 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 14 of 82 1 determination made pursuant to the commodity jurisdiction process takes into account “(i) The 2 form and fit of the article; and (ii) The function and performance capability of the article.” Ex. 4 3 ¶ 20. 4 37. 22 C.F.R. § 120.4(f) requires that “State, Defense and Commerce will resolve 5 commodity jurisdiction disputes in accordance with established procedures. State shall notify 6 Defense and Commerce of the initiation and conclusion of each case.” 7 B. 8 The Defense Distributed CAD Files 38. Defense Distributed is a Texas corporation founded by Cody Wilson, a self- 9 described “crypto-anarchist” who believes that “governments should live in fear of their 10 citizenry.” His company’s objective is for everyone in the world to have access to guns, and to 11 make meaningful gun regulation impossible. 12 39. In or around early May 2013, Defense Distributed posted CAD files on 13 DEFCAD.org, a website it created to serve as an open-source repository for weapons designs, 14 including software code used to automatically manufacture the “Liberator” pistol. The Liberator 15 is a plastic firearm which contains 6-oz piece of steel, which can be easily removed, enabling it 16 to avoid detection in walk-through metal detectors. 17 40. Defense Distributed described these CAD files as “essentially blueprints that can 18 be read by CAD software.” As the Federal Government stated in a court filing in April 2018, 19 these files are “indispensable to a three-dimensional (‘3-D’) printing process used to create 20 firearms and their components.” All a user would need to do is connect to a 3-D printer, 21 download the CAD files, and enter a print command, in order to create a real, functional weapon 22 within hours or minutes. 23 24 41. On May 8, 2013, the Office of Defense Trade Controls Compliance, which is responsible for compliance with and civil enforcement of the AECA and ITAR, sent Defense FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 14 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 15 of 82 1 Distributed a letter noting that “it is unlawful to export any defense article or technical data for 2 which a license or written approval is required without first obtaining the required authorization 3 from the DDTC.”That letter is attached hereto as Exhibit 5. The letter explained that “disclosing 4 (including oral or visual disclosure) or transferring foreign data to a foreign person, whether in 5 the United States or abroad, is considered an export under § 120.17 of the ITAR.” It requested 6 that Defense Distributed remove ten specific CAD files from public access “immediately” and 7 advised that Defense Distributed could submit a request for CJ determination for the files. 8 Defense Distributed submitted a CJ determination request on June 21, 2015. 9 42. Separately, Defense Distributed submitted a CJ determination request for the 10 “Ghost Gunner,” an automated firearms metal milling machine. In April 2015, the DDTC 11 determined that the Ghost Gunner machine itself was not subject to the jurisdiction of the State 12 Department, but that the “project files and data files for producing a defense article on a 3D 13 printer or similar device constituted technical data on that defense article that would be subject 14 to ITAR regulation.” 15 43. The DDTC completed its review of Defense Distributed’s original requests on 16 June 4, 2015 and determined that six of those files were subject to ITAR control: (i) the 17 Liberator pistol; (ii) the .22 caliber electric pistol; (iii) the 5.56/.223 muzzle brake; (iv) the 18 Springfield XD- 40 tactical slide assemble; (v) the sub-caliber insert; and (vi) the VZ-58 front 19 sight. 20 44. In making its CJ determination, the DDTC noted that the CAD files could be used 21 to “automatically find, align, and mill” a defense article such as a firearm on a 3-D printer or 22 other manufacturing device, and that manufacture of a defense article in this way requires 23 considerably less know-how than manufacture in reliance on conventional technical data, which 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 15 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 16 of 82 1 merely guidesthe manufacture of a defense article and requires additional craftsmanship, know- 2 how, tools, and materials. 3 C. 4 Defense Distributed’s Lawsuit against the Federal Government 45. In May 2015, Defense Distributed sued the Federal Government in a Texas 5 federal district court, seeking an injunction to prevent the Government from regulating Defense 6 Distributed’s dissemination of the CAD files. Def. Distributedv. U.S. Dept. of State , 7 15-CV-372 RP (W.D. Texas). 8 46. In defending against that lawsuit, the Government stated it was “particularly 9 concerned that [the] proposed export of undetectable firearms technology could be used in an 10 assassination, for the manufacture of spare parts by embargoed nations, terrorist groups, or to 11 compromise aviation security overseas in a manner specifically directed at U.S. persons.” As 12 the Government explained, the CAD files “are ‘technical data’ that are regulated by the ITAR 13 because, absent such regulation, providing the CAD designs to a foreign person or foreign 14 government would be equivalent to providing the defense article itself, enabling the complete 15 circumvention of ITAR’s export regulations.” 16 47. Along with its opposition to Plaintiffs’ preliminary injunction motion, the 17 Government submitted an affidavit from Lisa V. Aguirre, who was then the Director of the 18 Office of Defense Trade Controls Management. SeeEx. 4, Dkt. 32-1. Among other things, 19 Director Aguirre stated that: (i) “[t]he ‘Liberator’ firearm included in DD’s CAD designs 20 presents a specific and unique risk to the national security and foreign policy interests of the 21 United States”; (ii) making the CAD files available online would provide terrorist organizations 22 with firearms, which could be used against the United States or its allies; and (iii) “[a]cess to 23 weapons technology coupled with the uncontrolled ubiquitous means of productions . . . could 24 contribute to armed conflict, terrorist or criminal acts, and seriously undermine global export FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 16 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 17 of 82 1 control and non-proliferation regimes designed to prevent the dangerous and destabilizing spread 2 and accumulation of weapons and related technologies.” Ex. 4 at ¶ 35(c). 3 48. The federal district court accepted the Government’s arguments and declined to 4 preliminarily enjoin the Government’s regulation of the CAD files. In doing so, the court found 5 that “[f]acilitating global access to firearms undoubtedly increases the possibility of outbreak or 6 escalation of conflict.” Def. Distributed v. U.S. Dep’t of , 121 F. Supp. 3d 680, 691 State 7 (W.D. Tex. 2015). 8 49. 9 10 On appeal, the Fifth Circuit affirmed the district court’s refusal to enjoin the Government’s enforcement efforts, focusing on both the national security implications of the CAD files and the permanent nature of the internet: 11 Even if Plaintiffs–Appellants eventually fail to obtain a permanent injunction, the files posted in the interim [if a preliminary injunction issued] would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide . . . Because those files would never , a preliminary go away injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest . would be harmed forever 12 13 14 15 Def. Distributed v. United States Dep’t ,of 838 State F.3d 451, 461 (5th Cir. 2016) (emphasis 16 added). 17 18 19 50. On January 8, 2018, the Supreme Court denied Defense Distributed’s petition for a writ of certiorari. Def. Distributed v. Dep’t of, State 138 S. Ct. 638 (2018). 51. After the district court lifted the stay of proceedings that had been imposed 20 pending the above-referenced appeals, the Government in April 2018 moved to dismiss Defense 21 Distributed’s complaint, arguing that the CAD files at issue “can unquestionably facilitate the 22 creation of defense articles abroad” and that “the Department of State has consistently and 23 reasonably concluded that it is not possible to meaningfully curtail the overseas dissemination 24 of arms if unfettered access to technical data essential to the production of those arms is FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 17 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 18 of 82 1 permitted.” If the Government were not permitted to regulate the dissemination of the CAD 2 files, it argued, “they could be used to threaten U.S. national security, U.S. foreign policy 3 interests, or international peace and stability.” 4 52. Mere weeks after the Government moved to dismiss, Wilson and Defense 5 Distributed abruptly announced that their case had settled. According to news reports, “the 6 government surprised the plaintiffs by suddenly offering them a settlement with essentially 7 everything they wanted.” 4 On July 27, 2018, the parties filed a stipulation of dismissal with 8 prejudice. 9 D. 10 The Government’s Settlement Agreement with Defense Distributed 53. The Settlement Agreement was apparently finalized in April 2018, but was not 11 executed by the parties until June 29, 2018, and was not made public until July 10, 2018. A true 12 and correct copy of the Settlement Agreement, which is published on DDTC’s website 13 (https://www.pmddtc.state.gov), attached hereto as Exhibit 6. 14 15 16 54. Pursuant to Paragraph 1 of the Settlement Agreement, the Government Defendants have committed to: a. “draft and . . . fully pursue, to the extent authorized by law (including the 17 Administrative Procedure Act), the publication in the Federal Register of a notice of proposed 18 rulemaking and final rule, revising USML Category I to exclude the technical data that is the 19 subject of the [Defense Distributed] Action”; 20 b. “announce[ ], while the above-referenced rule is in development, . . . a temporary 21 modification, consistent with [ITAR], of USML Category I to exclude the technical data that is 22 the subject of the Action . . . on or before July 27, 2018”; 23 24 4 Exhibit 1 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 18 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 19 of 82 1 c. “issu[e] . . . a letter to Plaintiffs on or before July 27, 2018, signed by the Deputy 2 Assistant Secretary for Defense Trade Controls, advising that the Published Files, Ghost Gunner 3 Files, and CAD Files 5 are approved for public release (i.e., unlimited distribution) in any form 4 and are exempt from the export licensing requirements of the ITAR”; and 5 d. “acknowledge[ ] and agree[ ] that the temporary modification of USML Category 6 I permits any United States person . . . to access, discuss, use, reproduce, or otherwise benefit 7 from the technical data that is the subject of the Action, and that the letter to Plaintiffs permits 8 any such person to access, discuss, use, reproduce or otherwise benefit from the Published Files, 9 Ghost Gunner Files, and CAD Files.” 10 55. Importantly, Paragraphs 1(a), (b), and (d) of the Settlement Agreement apply to 11 “the technical data that is the subject of the Action,” which is defined to include “Other Files,” 12 i.e., those that “Defense Distributed has and will continue to create and possess . . . that contain 13 technical information, to include design drawings, rendered images, written manufacturing 14 instructions.” In other words, they include existing files that the Government presumably has not 15 seen or evaluated, as well as files that may be created or acquired by Defense Distributed in the 16 future. 17 56. There is no indication in the Settlement Agreement (or elsewhere) that any 18 analysis, study or determination was made by the Government Defendants, in consultation with 19 other agencies, before the Government agreed to remove the CAD Files from the USML 20 Category I. In fact, the Settlement Agreement states that it “does not reflect any agreed-upon 21 5 22 23 24 These terms are defined as follows, by reference to Defense Distributed’s complaint:  “Published Files”: “technical information regarding a number of gun-related items, including a trigger guard, grips, two receivers, a magazine for AR-15 rifles, and a handgun”.  “Ghost Gunner Files”: “files containing technical information on a machine, named the “Ghost Gunner,” that can be used to manufacture a variety of items, including gun parts”.  “CAD Files”: files which Defense Distributed has made requests to the Department of Defense Office of Prepublication Review and Security for prepublication review since September 2, 2014. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 19 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 20 of 82 1 purpose other than the desire of the Parties to reach a full and final conclusion of the Action, and 2 to resolve the Action without the time and expense of further litigation.” Ex. 6 ¶ 5. 3 57. Upon information and belief, neither the House Committee on Foreign Relations 4 nor the Senate Committee on Foreign Relations received the required 30 days’ advance notice 5 of the “temporary modification” referenced in Paragraphs 1(b) or (d) of the Settlement 6 Agreement. The temporary modification went into effect on July 27, 2018, without providing 7 any such notice to Congress. 8 58. In addition, there is no indication in the Settlement Agreement (or elsewhere) that 9 the Secretary of Defense has concurred in the changes to designation to which the Government 10 Defendants committed, as required by Executive Order 13637. There is also no indication that 11 the Government Defendants have followed the established procedures for making a CJ before 12 allowing Defense Distributed to disseminate its CAD files. 13 59. Since the Settlement Agreement became public, Cody Wilson and Defense 14 Distributed have repeatedly and adamantly claimed that the “temporary modification” pursuant 15 to the Settlement Agreement will effectively negate all gun violence prevention efforts. Among 16 other things, Wilson tweeted a photo of a tombstone announcing the death of “gun control,” and 17 stated: “All this Parkland stuff, the students, all these dreams of ‘common sense gun reforms’? 18 No. The internet will serve guns . . . No amount of petitions or die-ins or anything else can 19 change that.” SeeEx. 1. 20 E. 21 The Government’s Actions in Accordance with the Settlement Agreement 60. On May 24, 2018, as promised, the Government published notices of proposed 22 rulemaking by the State and Commerce Departments, which would remove Plaintiffs’ CAD files 23 from the USML Category I. SeeInternational Traffic in Arms Regulations: U.S. Munitions List 24 Categories I, II, and II, 83 Fed. Reg. 24,198 (May 24, 2018); Control of Firearms, Guns, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 20 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 21 of 82 1 Ammunition and Related Articles the President Determines No Longer Warrant Control Under 2 the United States Munitions List (USML), 83 Fed. Reg. 24,166 (May 24, 2018). 3 61. According to the Department of State’s Notice of Proposed Rule, it “is engaged 4 in an effort to revise the U.S. Munitions List so that its scope is limited to those defense articles 5 that provide the United States with a critical military or intelligence advantage or, in the case of 6 weapons, are inherently for military end use.” According to the State Department, the articles 7 that would be removed from the list “do not meet this standard.” For this reason, the notice 8 proposes to remove all non-automatic firearms up to .50 caliber (and any related technical data) 9 from the USML under the jurisdiction of the State Department, and move jurisdiction over these 10 products over to the Commerce Department, which, due to its looser export controls, 11 typically take action to prohibit the publication of the data. 12 62. 6 do not The Department of Commerce’s Proposed Rule, filed the same day, describes 13 how its Export Administration Regulations (EAR) will apply to items no longer controlled under 14 the USML. Although the Department of Commerce would not comprehensively restrict the 15 export of technology related to firearms, it would have authority to impose a restriction on a 16 case-by-case basis if it determines the export would be contrary to the national security or foreign 17 policy interests of the United States, the promotion of human rights, or regional stability. 18 See15 C.F.R. § 742.6. But the Department of Commerce cannot restrict the export of technology 19 already in the public domain, including through posting on publicly available sites on the 20 internet. See15 C.F.R. §§ 734.3(b)(3), 734.7(a)(4). If the Government Defendants’ improper 21 deregulation of the CAD files at issue is not enjoined, and Defense Distributed makes its 22 repository of files available online, the Department of Commerce will be unable to make an 23 24 6 ITAR requires any exporter of items on the USML to register with the State Department, see22 C.F.R. 122.1(a), but Commerce Department regulations include no similar registration requirement. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 21 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 22 of 82 1 independent determination about whether national security or other concerns warrant restricting 2 the unlimited dissemination of those files in accordance with the EAR. 3 4 5 63. The public comment period for both notices concluded on July 9, 2018, the day before the Settlement Agreement became public. 64. On July 27, 2018, as promised, DDTC published a notice on its website entitled 6 “Temporary Modification of Category I of the United States Munitions List.” attached hereto as 7 Ex. 7. This notice states that “the Acting Deputy Assistant Secretary for Defense Trade Controls 8 has determined that it is in the interest of the security and foreign policy of the United States to 9 temporarily modify United States Munitions List (USML) Category I to exclude” the technical 10 11 data described in the Settlement Agreement. 65. Upon information and belief, the Government did not actually “determine” that 12 “it is in the interest of the security and foreign policy of the United States” to permit the global 13 dissemination of CAD files that can be used to automatically manufacture undetectable and 14 untraceable weapons. The notion that removal of an item from the USML is in the national 15 security interest defies common sense. 16 Agreement, which provides that the parties’ agreement thereto does not “reflect any agreed-upon 17 purpose other than the desire of the Parties to reach a full and final conclusion of the Action, and 18 to resolve the Action without the time and expense of further litigation.” 19 66. This statement also contradicts the Settlement In sum, the Government’s covert agreement to deregulate the CAD files by way 20 of the Settlement Agreement—which culminated in the enactment of the “temporary 21 modification” on July 27, 2018—are final agency decisions that not only failed to comply with 22 procedural requirements, but that have far-reaching implications for national security and the 23 safety and security of the State and people of Washington. 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 22 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 23 of 82 1 F. 2 Adverse Effects on the States’ Public Safety Laws 67. Each of the States in this matter have extensive and comprehensive statutory and 3 regulatory schemes regarding firearms. The aim of the States’ laws is the same: To protect the 4 public by keeping guns out of the hands of those who should not possess them – minors, 5 convicted felons, the mentally ill, and those subject to protective and no-contact orders. The 6 States’ ability to protect the public will be seriously undermined if the Government’s action is 7 allowed to stand because the Government’s action will allow anyone – including those ineligible 8 to possess firearms – to easily obtain untraceable guns by simply printing them. 9 1. Washington’s Firearms Laws 10 68. The State of Washington has a comprehensive statutory scheme regulating the 11 possession, licensing, registration, and use of firearms and dangerous weapons. 12 69. These laws promote public safety by keeping guns out of the hands of those 13 who, for various reasons, should not have access to them, including minors, persons convicted 14 of violent felonies, the mentally ill, and persons subject to various protection and no-contact 15 orders. 16 70. As noted, Cody Wilson’s express intent is to eviscerateanyregulation of firearms 17 by providing to anyone—including the categories of persons just mentioned—the ability to 18 easily manufacture firearms that can evade metal detectors, are untraceable because they carry 19 no markings, and shoot bullets that cannot be forensically linked to the gun. The Government 20 Defendants’ unlawful action in removing from the USML CAD files like those Mr. Wilson 21 intends to disseminate will allow Mr. Wilson and others like him to achieve their dream. 22 71. Indeed, the Government Defendants’ unlawful action will effectively cripple 23 Washington’s ability to enforce its firearm and dangerous weapons regulations—to the great 24 detriment of the public and public safety. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 23 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 24 of 82 1 72. Washington law prohibits certain persons from obtaining or possessing firearms. 2 For example, persons cannot possess firearms if they have been convicted or found not guilty by 3 reason of insanity of crimes including serious felony offenses and certain crimes committed by 4 one family member against another (e.g., stalking, reckless endangerment, coercion). Wash Rev. 5 Code §§ 9.41.040(1), (2)(a)(i)-(ii). Persons subject to a variety of protection and no contact 6 7 orders are also prohibited from possessing firearms. Wash Rev. Code § 9.41.040(2)(a)(iii). 7 Persons who have been involuntarily committed for mental health treatment may not possess 8 firearms. Wash Rev. Code § 9.41.040(2)(a)(iv). Finally, persons under the supervision of the 9 Washington Department of Corrections cannot possess firearms or ammunition. Wash Rev. 10 Code § 9.41.045. 11 73. Washington law also has set up an extensive system of rules to ensure these 12 persons cannot buy firearms. For example, a person who applies to buy a pistol from a dealer 13 must provide a laundry list of information, including his or her name, residential address, date 14 and place of birth, driver’s license number or state identification card number, and statement that 15 the buyer is eligible under Washington law to possess the gun, as well as a description of the 16 gun, including the make, model, caliber and manufacturer’s number. Wash Rev. Code § 17 9.41.090(5). The dealer cannot deliver the pistol to the buyer, even if he or she is eligible to 18 possess the gun, unless the manufacturer’s number for the gun is recorded on the application and 19 transmitted to the local police chief or sheriff where the buyer lives. Id. The dealer must keep a 20 record in a book of each pistol sold, including information about the person buying the weapon 21 (e.g., name, address, etc.) and the weapon (e.g., caliber, make, model and manufacturer’s 22 number), and the book must be signed by both the buyer and the dealer in one another’s presence. 23 24 7 These include sexual assault protection orders (Wash Rev. Code 7.90), stalking protection orders (Wash. Rev. Code 7.92), anti-harassment protection orders (Wash Rev. Code 10.14), and domestic violence protection orders (RCW 26.50). FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 24 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 25 of 82 1 Wash Rev. Code § 9.41.110(9)(a). The dealer is also obligated to give to the buyer a copy of a 2 pamphlet advising the buyer of legal restrictions on the use of firearms and firearms safety. Wash 3 Rev. Code § 9.41.090(5) (year). 4 74. One of the cornerstones of Washington’s firearms regulatory structure is the use 5 of background checks. Essentially all sales or transfers of firearms in Washington are subject to 6 background checks. 8 Wash. Rev. Code § 9.41.113(1). This includes not just sales by dealers, but 7 also sales or transfers at gun shows and online. Id. Even sales or transfers between unlicensed 8 parties must be run through a licensed dealer in order to ensure that a background check is 9 completed. Wash Rev. Code § 9.41.113(3). The purpose of the background check is simple and 10 obvious: to ensure that persons prohibited by law from possessing firearms are unable to do so. 11 75. The Government’s “temporary modification” of the USML Category I to permit 12 “any United States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD 13 files for the automated production of 3-D printed weapons quite literally nullifies the State of 14 Washington’s laws prohibiting certain categories of persons from possessing firearms. 15 76. If the “temporary modification” is left in place, the State of Washington stands to 16 suffer extreme and irreparable harm. Persons ineligible to possess firearms under Washington 17 law will easily be able to obtain downloadable guns that they can produce at home using a 3-D 18 printer. Washington law enforcement will have no means of detecting such weapons using 19 standard equipment such as metal detectors, and no means of tracing such weapons because they 20 have no serial numbers. 21 22 77. 3-D printers are widely available to the general public in Washington. For example, Amazon has hundreds of 3-D printers on its website for sale to the public. In addition, 23 24 8 The exceptions to this rule are extremely limited (e.g., transfers between immediate family members, antique firearms, to prevent imminent death or great bodily harm, etc.). RCW 9.41.113(4). FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 25 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 26 of 82 1 such printers are widely accessible at Washington colleges and universities, including the 2 University of Washington in Seattle. See, e.g. , https://itconnect.uw.edu/learn/workshops/3d- 3 printing-consultation/ (University 4 (Washington University); 5 (Central Washington University). 6 78. State of Washington); https://vcea.wsu.edu/fiz/3d-printing/ https://www.cwu.edu/multimodal-education/3d-printing The dangers posed by the Government’s actions that will allow the imminent 7 dissemination of the technology needed to print guns is recognized by two of Washington’s 8 preeminent law enforcement officers, Seattle Police Chief Carmen Best and King County Sheriff 9 Mitzi Johanknecht. As Sheriff Johanknecht attests, “Ghost guns are an extreme risk to public 10 safety that would disrupt the ability of law enforcement to conduct, solve and prevent violent 11 crimes.” Ex. 2 ¶ 8. 12 79. 13 In sum, the Government’s actions are an extreme infringement on the State of Washington’s sovereign right to enact and enforce its public safety laws. 14 2. Connecticut’s Firearms Laws 15 80. Connecticut comprehensively regulates the possession, sale and transfer of all 16 firearms within and into the state and bans the most dangerous military-style firearms 17 completely. It also regulates the classes of people who may lawfully possess otherwise lawful 18 firearms and prohibits individual from possessing firearms who pose the most serious threat to 19 public safety, and in some instances, themselves. a. 20 21 81. Connecticut’s regulation of all lawful firearm owners In Connecticut, people who wish to possess handguns—pistols or revolvers— 22 are required to have a valid pistol permit; an eligibility certificate to purchase pistols or 23 revolvers; an eligibility certificate to purchase long guns, or a be a police officer or one of the 24 exemption listed in law. Not everyone who wishes to have a pistol permit in Connecticut is FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 26 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 27 of 82 1 granted one; he or she must be a person is a suitable person to receive such permit. Conn. Gen. 2 Stat. Ann. § 29-28. Individuals who wish to possess a pistol or revolver must satisfy basic 3 safety training requirements. Conn. Gen. Stat. Ann. § 29-36f(b); Conn. Gen. Stat. § 29-28 (b). b. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 82. Connecticut’s regulation of sale, purchase and transfer of poss of all firearms, even between lawful firearm owners Connecticut closely regulates the sale and transfer of all firearms, even between lawful firearm owners. In Connecticut, no person, firm or corporation shall sell, deliver or otherwise transfer any pistol or revolver to any person who is prohibited from possessing a pistol or revolver. Conn. Gen. Stat. § 29-33(a). The purchaser of a pistol or revolver must have a valid permit to carry a pistol or revolver. Conn. Gen. Stat. § 29-33(b). Compliance with these requirements is ensured by requiring all sales or transfers of pistols or revolvers in Connecticut be made through a process established by the Connecticut Department Emergency Services and Public Protection. Conn. Gen. Stat. § 29-33(c). 83. Similarly, Connecticut regulates the sale and transfer of long guns such as rifles and shotguns. All parties to such transfers must ensure, through a process established by the Connecticut Department Emergency Services and Public Protection, that the purchaser of the long gun has a valid long gun eligibility certificate that has not been revoked or suspended. Conn. Gen. Stat. § 29-36l(f). 84. Connecticut regulation also restricts how many firearms a person can sell as year without becoming a federally licensed firearm dealer or obtaining a permit. Conn. Gen. Stat. § 29-28. 85. Unlike many states, Connecticut’s firearm regulations extend to the sales, transfers or exchanges taking place at “gun shows.” Connecticut requires that gun show sellers 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 27 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 28 of 82 1 obtain an authorization number from the Connecticut Special Licensing and Firearms Unit. 2 Conn. Gen. Stat. § 29-37g(c). c. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 86. Connecticut’s prohibition on possession of a firearm by ce persons Connecticut prohibits certain persons from obtaining or possessing firearms. For example, persons cannot possess firearms if they have been convicted or found not guilty by reason of insanity of crimes including serious felony offenses and certain crimes committed by one family member against another Conn. Gen. Stat. § 53a-217. No person convicted for a Felony or a Misdemeanor crime of domestic violence involving the use or threatened use of physical force or a deadly weapon may possess any firearms in Connecticut. Conn. Gen. Stat. § 29-36f(b); Conn. Gen. Stat. § 29-28 (b). 87. The types of crimes that render someone ineligible to possess a firearm in Connecticut are wide ranging and include: 1) illegal possession of narcotics or other controlled substances; 2) criminally negligent homicide; 3) assault in the third degree ; 4) Assault of a victim 60 or older in the third degree; 5) threatening; 6) reckless endangerment in the first degree; 7) unlawful restraint in the second degree; 8) riot in the first degree; 9) riot in the second degree; 10) Inciting to riot; 11) stalking in the second degree; or 12) anyone who has been convicted as delinquent for the commission of a serious juvenile offense, or 13) anyone who has been discharged from custody within the preceding twenty years after having been found not guilty of a crime by reason of mental disease or defect; 14) anyone who has been confined in a hospital for persons with psychiatric disabilities within the preceding sixty months by order of a probate court; 15) anyone who has been voluntarily admitted to a hospital for persons with psychiatric disabilities within the preceding six months for care and treatment of a psychiatric disability and not solely for alcohol or drug dependency; or 15) anyone who is subject to a firearms seizure 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 28 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 29 of 82 1 order issued pursuant to Connecticut General Statute Section 29-38c after notice and an 2 opportunity to be heard has been provided to such person; 16) anyone who is an alien illegally 3 or unlawfully in the United States; 17) anyone who satisfies any of the federal disqualifiers listed 4 in Title 18 U.S.C Chapter 44. SeeConn. Gen. Stat. § 29-28(b); Conn. Gen. Stat. § 29-36f(b). 5 6 88. obtaining a pistol or revolver. Conn. Gen. Stat. § 29-36f(a). d. 7 8 9 Connecticut also prohibits a person under the age of 21 years of age from 89. Connecticut’s regulation of assault weapons and machine guns Connecticut prohibits the possession of an assault weapon or any “part or combination of parts” that can be readily assembled into an assault weapon, Conn. Gen. Stat. 10 § 53-202c unless the owner obtained a Certificate of Possession prior to January 1, 2014. 11 Conn. Gen. Stat. § 53-202d. 12 90. Any Connecticut resident who owns a fully automatic weapon or machine gun is 13 required to complete a state form registering that firearm with Connecticut immediately upon 14 receiving it, and upon an annual basis. Conn. Gen. Stat. § 53-202(g). 15 91. The Government’s “temporary modification” of the USML Category I to permit 16 “any United States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD 17 files for the automated production of 3-D printed weapons quite literally nullifies the State of 18 Connecticut’s laws prohibiting certain categories of persons from possessing firearms. 19 92. If the “temporary modification” is left in place, the State of Connecticut stands to 20 suffer extreme and irreparable harm. Persons ineligible to possess firearms under Connecticut 21 law will easily be able to obtain downloadable guns that they can produce at home using a 3-D 22 printer. Connecticut law enforcement will have no means of detecting such weapons using 23 standard equipment such as metal detectors, and no means of tracing such weapons because they 24 have no serial numbers. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 29 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 30 of 82 1 2 93. In sum, the Government’s actions are an extreme infringement on the State of Connecticut’s sovereign right to enact and enforce its public safety laws. 3 3. Maryland’s Firearms Laws 4 94. The State of Maryland has one of the most robust firearms regulatory regimes in 5 the country. For instance, Maryland prohibits certain categories of persons from buying or 6 possessing a firearm. This includes minors under the age of 21, and persons previously convicted 7 of certain serious crimes, including crimes of violence. Md. Code Ann., Pub. Safety § 5-133. 8 Persons who have been involuntarily committed to a mental health facility, or are under the 9 protection of a court-appointed guardian, or have been found incompetent to stand trial, or are 10 addicted to a controlled dangerous substance, or are subject to a protective order are all 11 prohibited from possessing a firearm as well. Id. 12 95. Sales and other transfers of firearms in Maryland are extensively regulated to 13 ensure that prohibited persons are unable to obtain a weapon. A person seeking to purchase, rent, 14 or receive a handgun must first obtain a handgun qualification license. Md. Code Ann., Pub. 15 Safety § 5-117.1. To obtain such a license, applicants must, among other things, make a sworn 16 statement that they are not prohibited under federal or State law from possessing a handgun, pass 17 a fingerprint-based background check, and complete an approved firearms safety training course. 18 Id. Further, a person must submit a firearm application before the person purchases, rents, or 19 transfers a handgun in Maryland. Md. Code Ann., Pub. Safety §§ 5-117, 5-118. That transaction 20 must be executed within 90 days of the application’s approval and must be reported to the State 21 Police, including a description of the firearm and its serial number. Md. Code Ann., Pub. Safety 22 § 5-123. Firearm dealers are required to maintain records of every transaction, including the 23 name and address of the purchaser, a precise description, including make, model, caliber, and 24 serial number of each firearm acquired or sold, and the date of sale. Md. Code Ann., Pub. Safety FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 30 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 31 of 82 1 § 5-145. Further, persons moving to Maryland from out-of-state must register their firearms with 2 the State Police, which requires the applicant to submit information such as their name, address, 3 and Social Security number, as well as the make, model, and manufacturer’s serial number of 4 the firearm. Md. Code Ann., Pub. Safety § 5-143. 5 96. Maryland also prohibits the possession of certain types of firearms. Assault 6 weapons, including assault pistols, may not be bought, possessed, sold, or transported into the 7 State. Md. Code Ann., Crim. Law § 4-303. Detachable magazines with a capacity of more than 8 ten rounds of ammunition are also prohibited from being bought, sold, or possessed. Md. Code 9 Ann., Crim. Law § 4-305. 10 97. Maryland’s carefully constructed regulatory regime will be upended if the 11 Government’s action is permitted to stand. Persons currently prohibited from possessing 12 firearms would be able to easily circumvent Maryland law by simply manufacturing a gun on a 13 3-D printer. The firearms thus produced will be unregistered, unmarked, and virtually 14 untraceable, directly harming Maryland’s interest in a well-regulated firearms market and 15 potentially leading to an increase in violent crime. 16 4. New Jersey’s Firearms Laws 17 98. New Jersey not only has statutes related to the purchase and possession of guns, 18 but also laws relating to who can manufacture firearms. In New Jersey, under N.J.S.A. 2C:39-9, 19 it is illegal to manufacture a weapon without being registered or licensed to do so. And N.J.S.A. 20 2C:39-10 makes it a crime to knowingly violate the regulatory provision relating to the 21 manufacturing of firearms in N.J.S.A. 2C:58-1, which provides that every manufacturer of 22 firearms shall register with the proper State authorities. Yet Defense Distributed’s codes would 23 enable individuals to manufacture guns, without a license, using a 3D printer at home, no matter 24 what state law says – and indeed, founder Cody Wilson has celebrated this result. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 31 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 32 of 82 1 99. New Jersey also has an extensive system of rules for people purchasing firearms. 2 A person must obtain a firearms purchaser identification card before purchasing, receiving, or 3 otherwise acquiring a firearm. Under N.J.S.A. 2C:58-3(c), the following people are prohibited 4 from obtaining a purchaser identification card, and thus prohibited from purchasing 5 firearms: those who have been convicted of crimes and disorderly persons offenses involving 6 acts of domestic violence (N.J.S.A. 2C:58-3(c)(1)); those who are drug dependent (N.J.S.A. 7 2C:58-3(c)(2)); those who are confined for mental disorders to hospitals, mental institutions or 8 sanitariums (N.J.S.A. 2C:58-3(c)(2)); those who suffer from a physical defect or disease that 9 would make it unsafe for him to handle firearms (N.J.S.A. 2C:58-3(c)(3)); those who have been 10 confined for a mental disorder (N.J.S.A. 2C:58-3(c)(3)); those who are alcoholics and are unable 11 to produce proof demonstrating that they no longer suffer from that particular disability in a 12 manner that would interfere with or handicap them in the handling of firearms (N.J.S.A. 13 2C:58-3(c)(3)); juveniles (N.J.S.A. 2C:58-3(c)(4)); those for whom the issuance of a permit to 14 purchase a handgun or firearms purchaser identification card would not be in the interests of the 15 public health, safety, or welfare (N.J.S.A. 2C:58-3(c)(5)); those who are subject to restraining 16 orders issued pursuant to the “Prevention of Domestic Violence Act” prohibiting them from 17 possessing firearms (N.J.S.A. 2C:58-3(c)(6); those who were adjudicated delinquent for offenses 18 which, if committed by an adult, would constitute a crime involving the unlawful use or 19 possession of weapons, explosives, or destructive devices (N.J.S.A. 2C:58-3(c)(7)); those who 20 had a firearm seized pursuant to the Prevention of Domestic Violence Act (N.J.S.A. 21 2C:58-3(c)(8)); and those who are named on the consolidated Terroristic Watchlist maintained 22 by the Terrorist Screening Center administered by the Federal Bureau of Investigation (N.J.S.A. 23 2C:58-3(c)(9)). And New Jersey bans all assault weapons. N.J.S.A. 2C:39-5(f). 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 32 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 33 of 82 1 100. Finally, New Jersey law prohibits “certain persons” from purchasing, owning, 2 possessing, or controlling any and all firearms under N.J.S.A. 2C:39-7(b), due to their prior 3 convictions for aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, 4 robbery, aggravated sexual assault, sexual assault, bias intimidation, endangering the welfare of 5 a child, stalking, or a crime involving domestic violence. Those persons face a mandatory term 6 of imprisonment with at least five years of parole ineligibility if they purchase, own, possess, or 7 control a firearm. N.J.S.A. 2C:39-7(b). 8 5. New York’s Firearms Laws 9 101. For over a century, in order to promote public safety, New York law has regulated 10 the possession and use of guns and has prohibited certain persons from obtaining or possessing 11 firearms. SeeNY Penal Law §§ 265.00, 265.01, 265.20(a)(3), 400.00;Kachalsky v. Cty. of 12 , 701 F.3d 81, 84 (2012), cert. denied, 133 S. Ct. 1806 (2013). For example, Westchester 13 New York licenses the possession of “firearms,” which are defined, as a general matter, as any 14 pistol or revolver; a shotgun having one or more barrels less than eighteen inches in length; a 15 rifle having one or more barrels less than sixteen inches in length; and any assault weapon. 16 SeeNY Penal Law §§ 265.01, 265.20(a)(3), 400.00. These measures remain the law today. 17 102. Licenses are limited “to those over twenty-one years of age, of good moral 18 character, without a history of crime or mental illness, and ‘concerning whom no good cause 19 exists for the denial of the license.’ ”Kachalsky v. County of Westchester , 701 F.3d 81, 86 20 (quoting PL § 400.00(1).); NY Penal Law §§ 265.00, 265.01, 265.20(a)(3), 400.00. Persons 21 subject to a variety of protection orders are also prohibited from maintaining licenses. NY Penal 22 Law § 400.00(1); NY Criminal Procedure Law § 530.14; Family Court Act §842-a. 23 24 103. Every license application triggers an investigation into the applicant by local law enforcement, including an investigation into the applicant’s mental health history. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 33 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 34 of 82 1 PL § 400.00(4); Kachalsky , 701 F.3d at 87. Firearms subject to licensure must be disclosed to 2 and registered with licensing officials. N.Y. Penal Law § 400.00(7) (mandating that each license 3 “specify the weapon covered by calibre, make, model, manufacturer's name and serial number, 4 or if none, by any other distinguishing number or identification mark . . . .”). 5 104. New York has also enacted specific criminal prohibitions on the possession of 6 rifles and shotguns by certain mentally ill individuals. PL §§ 265.01(6), 265.00(16). Penal Law 7 § 265.01(6), enacted in 1974, provides that “a person who has been certified not suitable to 8 possess a rifle or shotgun . . . and refuses to yield possession of such rifle or shotgun upon the 9 demand of a police officer” is guilty of criminal possession of a weapon in the fourth degree. Id. 10 § 265.01(6). Law enforcement is authorized to take firearms “possessed by such person.” 11 105. New York’s Secure Ammunition and Firearms Enforcement Act of 2013 (SAFE 12 Act) generally restricts the transfer and possession of “assault weapons”—defined, as a general 13 matter, as rifles, shotguns, and pistols that are (1) semiautomatic, (2) in the case of a pistol or 14 rifle, able to accept a detachable ammunition magazine, and (3) equipped with at least one feature 15 on an enumerated list of military style features. Penal Law § 265.00(22).[1] Possession of a 16 prohibited assault weapon constitutes the Class D felony of Criminal Possession of a Weapon in 17 the Third Degree. Id. § 265.02(7)-(8) 9. 18 106. The Government’s “temporary modification” of the USML Category I to permit 19 “any United States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD 20 files for the automated production of 3-D printed weapons quite literally nullifies the New 21 York’s laws prohibiting certain categories of persons from possessing firearms. If the “temporary 22 9 23 24 The Act does not prohibit possession of any firearm that was lawfully possessed before the law’s effective date of January 15, 2013. See Penal Law § 265.00(22)(g)(v). Persons who lawfully possessed a banned assault weapon at that time may continue to do so, but must register the weapon with the Superintendent of the State Police. Id. § 400.00(16-a).]\ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 34 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 35 of 82 1 modification” is left in place, the New York stands to suffer extreme and irreparable 2 harm. Persons ineligible to possess firearms under New York law will easily be able to obtain 3 downloadable guns that they can produce at home using a 3-D printer. New York law 4 enforcement will have no means of detecting such weapons using standard equipment such as 5 metal detectors, and no means of tracing such weapons because they have no serial numbers. 6 6. Oregon’s Firearms Laws 7 107. Oregon law also limits the availability and manufacture of firearms to protect the 8 public safety and in the exercise of its police powers. Or. Rev. St. 166.170(1) provides: “[e]xcept 9 as expressly authorized by state statute, the authority to regulate in any matter whatsoever the 10 sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or 11 any element relating to firearms and components thereof, including ammunition, is vested solely 12 in the Legislative Assembly.” Under this authority, the Oregon Legislature enacted Or. Rev. St. 13 166.410, which states that “[a]ny person who manufactures or causes to be manufactured within 14 this state, or who imports into this state, or offers, exposes for sale, or sells or transfers a handgun, 15 short-barreled rifle, short-barreled shotgun, firearms silencer or machine gun, otherwise than in 16 accordance with [the Oregon statutes] is guilty of a Class B felony.” 17 108. Thus, Oregon law prohibits certain persons from obtaining or possessing 18 firearms. For example, Oregon law prohibits certain felons, certain individuals under the 19 jurisdiction of juvenile court, certain individuals with will mental illnesses and certain persons 20 subject to stalking orders from possession firearms. Or. Rev. St. 166.250; Or. Rev. St. 166.255. 21 Under Or. Rev. St. 166.470(1), it is unlawful to knowingly and intentionally sell, deliver or 22 otherwise transfer a firearm to such persons. 23 24 109. Oregon law also has set up an extensive system of rules to ensure unauthorized persons cannot buy firearms. For example, with certain exceptions (for example, transfers to FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 35 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 36 of 82 1 family members), only a gun dealer may transfer a firearm. Or. Rev. St. 166.435(2). A person 2 who applies to buy a handgun from a dealer must provide valid government identification 3 bearing a photograph and date of birth, and the dealer must complete a transaction record with 4 the signature of the purchaser. This transaction record much include the federal firearms license 5 number of the dealer, the business name of the dealer, the place of transfer, the name of the 6 person making the transfer, the make, model, caliber and manufacturer’s number of the handgun 7 and the type, the social security number of the purchaser, and the issuer and identification 8 number of the identification presented by the purchaser. The dealer must also obtain the 9 thumbprints of the prospective purchaser and contact the Department of State Police 10 (“Department”) to conduct a criminal background check. Or. Rev. St. 166.412; Or. Rev. St. 11 166.418. 12 13 110. Oregon law also requires a request for a criminal background check to transfer a gun at a gun show. Or. Rev. St. 166.433(2); Or. Rev. St. 166.438. 14 7. Massachusetts’ Firearms Laws 15 111. Massachusetts carefully regulates the possession, licensing, and use of firearms 16 and other inherently dangerous weapons. Among the goals of these laws is limiting access to 17 deadly weapons by persons who may inflict harm – be it negligently or intentionally – on 18 themselves or others. These laws also recognize that criminal use of firearms is a significant 19 problem, that guns should be registered and traceable in the event of theft or criminal misuse, 20 and that possession of firearms should be limited to responsible persons who meet all 21 requirements for licensure. See, e.g. , Commonwealth v. Reyes , 464 Mass. 245, 250 (2013); Jupin 22 v. Kask , 447 Mass. 141, 153-154 (2006) 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 36 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 37 of 82 1 112. Under Massachusetts law, 10 a person may not possess or carry a firearm without 2 obtaining a license from the appropriate licensing authority. Persons may not obtain a license to 3 carry a firearm if they: (1) have committed certain offenses, including violent crimes and laws 4 regulating the use, possession, or sale of a controlled substance; (2) have been committed to a 5 hospital or institution for mental illness, or alcohol or substance misuse, subject to limited 6 exceptions; (3) were younger than 21 years old at the time of submitting an application; (4) are 7 currently subject to an order for suspension or surrender of firearms in connection with an abuse 8 prevention order; (5) have an outstanding arrest warrant in any state or federal jurisdiction; (7) 9 have been dishonorably discharged from the armed forces of the United States; (8) are a fugitive 10 11 from justice; or (9) have renounced their United States citizenship. M.G.L. c. 140, § 131(d). 113. A licensing authority also may deny a person a license to carry firearms if the 12 licensing authority determines that the person is unsuitable for a license based on: (i) reliable 13 and credible information that the applicant or licensee has exhibited or engaged in behavior that 14 suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or 15 (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a 16 risk to public safety. M.G.L. c. 140, § 131(d). 17 114. Anyone who wishes to sell, rent, or lease firearms must apply for and obtain a 18 license. Such licenses are valid for three years. No license may issue until an investigation into 19 the applicant’s criminal history has been completed. A licensee must record all sales of firearms 20 to include a complete description of the firearm (including the make and type of firearm) and the 21 person purchasing the firearm (including the person’s sex, residence, and occupation). The police 22 23 24 10 The Massachusetts-specific allegations contained herein constitute a summary of some of the most relevant provisions of Massachusetts law. It is not an exhaustive or complete list of all relevant statutes, regulations, or other provisions. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 37 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 38 of 82 1 may inspect the premises of a licensee at all times. M.G.L. c. 140, §§ 122-124. Reports of all 2 transactions must be made by licensees to Massachusetts’s Department of Criminal Justice 3 Information Services with information that includes the make, model, serial number, caliber, 4 barrel length, and gun surface finish. 803 C.M.R. 10.00. 5 115. It is unlawful to manufacture a firearm in Massachusetts or to deliver a firearm 6 to a dealer in Massachusetts without a serial number permanently inscribed on a visible metal 7 surface of the firearm. M.G.L. 269, § 11E. 8 9 116. Anyone who purchases or obtains a firearm from any source other than a licensed dealer must, within seven days of receiving the firearm, report in writing to the Commissioner 10 of the Massachusetts Department of Criminal Justice Information Services the name and address 11 of the seller or donor and the buyer or donee, together with a complete description of the firearm, 12 including the caliber, make, and serial number. M.G.L. c. 140, § 128B. 13 117. Only handguns that meet the safety and performance standards expressed in state 14 law and regulations, including protection against accidental discharge and explosion upon firing, 15 may be sold. M.G.L. c. 140D, § 123, clauses 18 to 20. The Secretary of the Massachusetts 16 Executive Office of Public Safety and Security has compiled an approved firearms roster, 17 pursuant to M.G.L. 140, § 131-3/4 and 501 C.M.R. 7.00. 18 118. It is unlawful to sell, offer for sale, transfer, or possess any weapon, capable of 19 discharging a bullet or shot, that is not detectable as a weapon or potential weapon by x-ray 20 machines commonly used at airports or walk-through metal detectors. M.G.L. c. 140, § 131N. 21 22 23 24 119. The sale, transfer, or possession of an “Assault weapon,” as defined in M.G.L. c. 140, § 121, is prohibited. M.G.L. c. 140, § 131M. 120. All firearms that are used in the commission of a crime must be traced by the licensing authority for the city or town in which the crime took place. M.G.L. c. 140, § 131Q. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 38 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 39 of 82 1 8. Pennsylvania’s Firearms Laws 2 121. Pennsylvania, like the other states, also has a robust system of state firearms laws 3 designed to keep the public safe and that would be undermined if the Government’s action is 4 allowed to stand. Section 6105 of the Pennsylvania’s Firearms Act mandates that any person 5 who has been convicted of certain enumerated offenses inside or outside of Pennsylvania 6 “regardless of the length of sentence” or whose conduct meets certain specified criteria “shall 7 not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, 8 sell, transfer or manufacture a firearm in this Commonwealth.” 18 Pa. C.S. § 6105(a). The 9 definition of “firearm” in section 6105 “shall include” any weapons which are “designed to or 10 may readily be converted to” expel any projectile by the action of an explosive or the frame or 11 receiver of any such weapon. 18 Pa. C.S. § 6105(i). The “downloadable guns” that Defense 12 Distributed promises to make available constitutes a “firearm” under this section of the Firearms 13 Act because it is a weapon that is designed and, by 3D printing, “may readily be converted to” 14 expel bullets by an explosive. Id. Depending on the underlying offense or criteria, violation of 15 section 6105, by individuals who shall not possess, use, control, sell, transfer or manufacture the 16 Defendants’ firearm in the Commonwealth is a second degree felony or first or third degree 17 misdemeanor. 18 Pa. C.S. § 6105(a)(1). Each firearm wrongly possessed by a felon constitutes 18 a separate offense. 19 122. By law, the State Police “shall have the responsibility to administer the provisions 20 of” Pennsylvania's Uniform Firearms Act, and are assigned certain specific duties thereunder. 21 18 Pa. C.S. § 6111.1.(a), (b). Among these duties, the State Police must: (1) review criminal 22 histories, delinquency histories, and mental health histories of potential firearms’ purchasers or 23 transferees; make all reasonable efforts to identify the legal owner of any firearm confiscated or 24 recovered by law enforcement; (3) establish a telephone number for inquires by licensed firearms FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 39 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 40 of 82 1 manufacturer, importers, and dealers; and (4) provide information regarding the firearms laws 2 and firearms safety. 18 Pa. C.S. § 6111.1 3 123. Section 6106 of the Firearms Act mandates, with limited exceptions, that, outside 4 of one’s home or “fixed place of business,” firearms may not be carried in the Commonwealth 5 “without a valid and lawfully issued license.” 18 Pa. C.S. § 6106(a). Violation of this section 6 constitutes a third degree felony unless the unlawful carrier of the firearm is “eligible” to have a 7 valid license, in which case the violation is a first degree misdemeanor. Id. 8 124. Under section 6109 of the Firearms Act, a “license to carry a firearm” is required 9 to carry a concealed firearm “on or about one’s person or in a vehicle throughout this 10 Commonwealth.” 18 Pa. C.S. § 6109(a). In order to apply for a concealed carry license, you 11 must be “21 years of age or older” and the application itself must be “uniform throughout this 12 Commonwealth” and only “on a form prescribed by the Pennsylvania State Police.” 18 Pa. C.S. 13 § 6109(b),(c). In filling out the application, the licensee must identify one of the following 14 reasons for applying for a firearm license: “self-defense, employment, hunting and fishing, target 15 shooting, gun collecting or another proper reason.” 18 Pa. C.S. § 6109(c). 16 125. Applicants must also sign and date the following statement under penalty of 17 perjury, certifying that they have “never been convicted of a crime that prohibits [them] from 18 possessing or acquiring a firearm under Federal or State law,” are “of sound mind,” and “have 19 never been committed to a mental institution.” Id. Applicants must also authorize the relevant 20 law enforcement officials to research all records necessary to verify the certification and promise 21 to “promptly notify” them if they are issued a license but later “knowingly become ineligible to 22 legally possess or acquire firearms.” Id. 23 24 126. Then, before a license is issued, the sheriff must “conduct [an] investigation” of the applicant including an investigation of the applicant’s “record of criminal conviction,” FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 40 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 41 of 82 1 whether or not the applicant “is under indictment for or has ever been convicted of a crime 2 punishable by imprisonment exceeding one year,” and has a “character and reputation” such that 3 the applicant “will not be likely to act in a manner dangerous to public safety.” 18 Pa. C.S. § 4 6109(d). The sheriff must also “conduct a criminal background, juvenile delinquency and 5 mental health check.” Id 6 127. As can be seen, these various requirements and background checks serve to keep 7 Pennsylvanians safe by keeping guns out of the hands of those who should not have access to 8 them. This system, however, will be effectively nullified if those ineligible to buy or possess 9 firearms can avoid the legal prerequisites for lawful possession by simply printing an untraceable 10 gun at home or elsewhere. 11 9. District of Columbia’s Firearms Laws 12 128. The District of Columbia, like the States, has a comprehensive statutory scheme 13 regulating the possession, licensing, and registration of firearms. Certain types of weapons are 14 prohibited entirely. 15 129. District of Columbia law prohibits certain persons from registering firearms. 11 16 For example, persons cannot register firearms if they have been acquitted by reason of insanity 17 within the last five years, or have been voluntarily or involuntarily committed to a mental 18 hospital or institution in that time. D.C. Code § 7-2502.03. Other persons prohibited from 19 registering firearms include persons convicted of a felony, persons with a history of violent 20 behavior, under indictment for a crime of violence or a weapons offense, or convicted within the 21 previous five years of: (a) use, possession, or sale of any narcotic or dangerous drug; (b) assault 22 23 24 11 Registration is a prerequisite to firearm possession and carrying in the District of Columbia. D.C. Code § 7-2502.01(a). See also D.C. Code § 22-4504 (license required to carry firearm within the District “either openly or concealed”). FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 41 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 42 of 82 1 or threats; (c) two or more impaired driving offenses; (d) intrafamily offenses punishable as 2 misdemeanors; or (e) stalking. D.C. Code § 7-2502.03(a)(2)–(4). 3 130. The District of Columbia also prohibits the registration of certain types of 4 firearms, including “unsafe” pistols, assault weapons, and .50 caliber firearms. D.C. Code §§ 7- 5 2502.02, 7-2501.01(3A)(A) (defining “assault weapon”). 6 131. One of the cornerstones of the District of Columbia’s firearms regulatory 7 structure is the use of background checks. All persons seeking to register a firearm (or obtain a 8 license to carry concealed) are subject to background checks. D.C. Code § 7-2502.04(a); § 22- 9 4506. The purpose of the background check is simple and obvious: to ensure that persons 10 11 prohibited by law from possessing firearms are unable to do so. 132. The Government’s “temporary modification” of the USML Category I to permit 12 “any United States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD 13 files for the automated production of 3-D printed weapons quite literally nullifies the District of 14 Columbia’s laws prohibiting certain categories of persons from possessing firearms. 15 133. If the “temporary modification” is left in place, the District of Columbia stands 16 to suffer extreme and irreparable harm. Persons ineligible to possess firearms under District of 17 Columbia law will easily be able to obtain downloadable guns that they can produce at home 18 using a 3-D printer, and even produce guns which are explicitly prohibited in the District because 19 they are assault weapons such as the AR-15. See D.C. Code Sec. 7-2501.01(3A)(A) (defining 20 assault weapons). District of Columbia law enforcement will have no means of detecting such 21 weapons using standard equipment such as metal detectors, and no means of tracing such 22 weapons because they have no serial numbers. In sum, the Government’s actions are an extreme 23 infringement on the District of Columbia’s right to enact and enforce its public safety laws. 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 42 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 43 of 82 1 10. California’s Firearms Laws 2 134. California’s Dangerous Weapons Control Law contains a comprehensive set of 3 4 statutes regulating firearms. Cal. Penal Code §§ 16580, 23500. 135. Ghost guns are a source of growing concern in California. They have been used 5 in at least two mass shootings in the State, one in Rancho Tehama Reserve in 2017 and one in 6 Santa Monica in 2013. Recently, federal and local law enforcement officials arrested ten suspects 7 in a Hollywood ghost gun ring that was supplying guns to criminals. One official involved in the 8 arrests noted a trend among Southern California gangs of making ghost guns, while an LAPD 9 official noted that ghost guns are “ending up in the hands of some of our most violent street 10 11 gangs here in Los Angeles.” 136. The actions taken by the Government and Defense Distributed will exacerbate 12 this problem, undermining California’s firearms laws and harming the public. The following 13 allegations provide examples of the laws that would be undermined. a. 14 15 137. California’s Unsafe Handgun Act In 1999, the California Legislature enacted the Unsafe Handgun Act in response 16 to the proliferation of low-cost, cheaply made handguns that are disproportionately used in 17 crimes. Fiscal v. City and Cty. of San Francisco , 158 Cal. App. 4th 895, 912 (2008). Before a 18 handgun may be manufactured, imported, sold, or transferred in California, it must pass a test 19 by an independent, certified laboratory establishing that the gun satisfies certain safety 20 requirements. Cal. Penal Code § 32010. For instance, revolvers and pistols must pass a 21 drop-safety test and satisfy certain firing requirements. Cal. Penal Code §§ 31900, 31905. In 22 general and barring specific exemptions, pistols that have not been grandfathered in under the 23 Act must come equipped with chamber load indicators, magazine disconnects, and 24 microstamping technology that imprints identifying information on expended cartridge casings. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 43 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 44 of 82 1 Cal. Penal Code § 31910(b)(4), (7). Pistols that do not satisfy these requirements may not be 2 manufactured, imported, sold, or transferred in California. Cal. Penal Code § 32000. It is 3 improbable that any 3-D printed pistol would come under an exemption or be grandfathered in, 4 meaning it would have to comply with these requirements before it could be lawfully possessed 5 in the State. 6 138. In 1999, the California Legislature enacted the Unsafe Handgun Act in response 7 to the proliferation of low-cost, cheaply made handguns that are disproportionately used in 8 crimes. Fiscal, 158 Cal. App. 4th at 912. Before a handgun may be manufactured, imported, 9 sold, or transferred in California, it must pass a test by an independent, certified laboratory 10 establishing that the gun satisfies certain safety requirements. Cal. Penal Code § 32010. For 11 instance, revolvers and pistols must pass a drop-safety test and satisfy certain firing 12 requirements. Cal. Penal Code §§ 31900, 31905. In general and barring specific exemptions, 13 pistols that have not been grandfathered in under the Act must come equipped with chamber load 14 indicators, magazine disconnects, and microstamping technology that imprints identifying 15 information on expended cartridge casings. Cal. Penal Code § 31910(b)(4), (7). Pistols that do 16 not satisfy these requirements may not be manufactured, imported, sold, or transferred in 17 California. Cal. Penal Code § 32000. It is improbable that any 3-D printed pistol would come 18 under an exemption or be grandfathered in, meaning it would have to comply with these 19 requirements before it could be lawfully possessed in the State. 20 139. Defense Distributed’s CAD files allow criminals to easily thwart these 21 requirements. And law abiding citizens who use those files to make a handgun using a 3-D 22 printer run the risk of violating state law, since any handgun printed and assembled (i.e., 23 manufactured) would be illegal unless it was made for submission and testing purposes to 24 comply with the Unsafe Handgun Act. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 44 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 45 of 82 b. 1 2 3 4 5 6 7 8 9 140. 12 13 14 15 16 17 18 19 20 21 California prohibits the manufacture and possession of military-style firearms and large capacity magazines. It is a felony to manufacture a machinegun or assault rifle or convert a firearm into a machinegun or assault weapon. Cal. Penal Code § 30600, 32625; see also Cal. Penal Code §§ 30510, 30515. It is also a crime to manufacture magazines that hold more than ten rounds. Cal. Penal Code §§ 16740, 16150, 32310. 141. Upon information and belief, Defense Distributed intends to post CAD files that would allow these prohibited military-style weapons to be manufactured within California in contravention of California law. 10 11 California regulates machine guns, assault rifles, and large-cap magazines c. 142. California regulates the purchase, sale, and transfer of firearm California also addresses gun violence and crime through a comprehensive scheme regulating the sale and transfer of firearms. These laws ensure that firearms sales and transfers are overseen by licensed firearms dealers. Cal. Penal Code §§ 26500, 28050. Employees of these firearms dealers must pass a background check, and the dealers must conducted business in designated buildings (with exceptions for gun shows). Cal. Penal Code §§ 26915, 26805. Among other important laws, licensed firearms dealers implement California’s ten-day waiting period laws. Cal. Penal Code §§ 26815, 27540. These laws prevent prohibited persons from acquiring firearms and ensure that purchasers have a cooling-off period, which reduces violent crime and suicide. 143. The CAD files that Defense Distributed intends to post promote evasion of these protections. 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 45 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 46 of 82 d. 1 2 144. California law prohibits certain persons from possessing firear California law prohibits many classes of people from possessing firearms. By 3 way of illustration, minors may not possess handguns or live ammunition. Cal. Penal Code 4 §§ 29610, 29650. Those convicted of a felony, or who have an outstanding warrant for a felony, 5 may not possess any firearm. Cal. Penal Code § 29800. Those convicted of certain 6 misdemeanors, including domestic violence and threatening public officials, may not possess 7 firearms. Cal. Penal Code § 29805. And those who are receiving inpatient treatment for a mental 8 disorder or who have communicated a threat of physical violence to their licensed 9 psychotherapist may not possess firearms. Cal. Welf. & Inst. Code § 8100. 10 145. The Government’s “temporary modification” of the USML Category I to permit 11 “any United States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD 12 files will remove regulatory barriers in place that prevent these prohibited classes from obtaining 13 firearms. 14 11. Colorado’s Firearms Laws 15 146. Colorado regulates the possession, sale, and transfer of firearms within the state, 16 including by requiring background checks for firearms transfers between private individuals and 17 at gun shows. Colo. Rev. Stat. §§ 18-12-11; 12-26.1-101. The state also bans certain dangerous 18 weapons and prohibits certain categories of persons from purchase or possession of a firearm. 19 Colo. Rev. Stat. §§ 18-12-102(1); 18-12-108.5(1); 18-12-108(1). 20 147. Like many states, Colorado prohibits concealed carry of firearms without a 21 permit, Colo. Rev. Stat. § 18-12-105, and also prohibits members of the general populace from 22 carrying firearms on school grounds, Colo. Rev. Stat. §§ 18-12-105.5, 18-12-214(3), or from 23 carrying firearms in public buildings equipped with security screening. § 18-12-214(4). Because 24 they have few metal parts, can be acquired by ineligible individuals without a background check, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 46 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 47 of 82 1 and are virtually untraceable, printable firearms can be used to evade all of these statutory 2 restrictions. 3 148. 4 5 Colorado prohibits outright the possession of firearm silencers, machine guns, short shotguns, short rifles, and ballistic knives. Colo. Rev. Stat. § 18-12-102(1). 149. Under Colorado law, individuals under the age of eighteen are generally 6 prohibited from possessing handguns, Colo. Rev. Stat. § 18-12-108.5(1)(a), and certain previous 7 offenders are generally barred from firearm possession altogether. Colo. Rev. Stat. 8 § 18-12-108(1). Individuals subject to civil protection orders may not possess or attempt to 9 purchase or receive a firearm while the protection order is in effect, Colo. Rev. Stat. 10 § 18-6-803.5(1)(c), and in fact must generally surrender any firearms in their possession within 11 24 hours of being served with a qualifying order. Colo. Rev. Stat. § 18-1-1001(9). 12 150. To effectuate these provisions and other similar restrictions on firearm 13 possession, Colorado requires virtually all private firearms sales, including those at gun shows, 14 to be preceded by a background check. Colo. Rev. Stat. §§ 18-12-112; 12-26.1-101. 15 151. The “temporary modification” will undermine Colorado’s efforts to prevent the 16 proliferation of dangerous weapons and to ensure that those ineligible to possess firearms under 17 state law are not able to obtain them. Rather than purchasing a firearm from a dealer or private 18 individual, which transfer would generally require a background check, an individual ineligible 19 to legally possess a firearm could simply purchase a 3D printer, download the plans, and 20 manufacture an untraceable firearm at home within a matter of hours. This safety risk is of 21 particular concern to Colorado, in light of the history of tragic mass shootings in the State, 22 including shootings that have taken place on school grounds. Examples include the shooting at 23 Columbine High School in 1999, which claimed the lives of 12 students and one teacher, as well 24 as the lives of the two shooters. In 2012, a mass shooting at an Aurora, Colorado movie theater FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 47 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 48 of 82 1 claimed the lives of 12 additional victims. Hundreds more innocent victims have been killed or 2 injured in other shooting events in Colorado’s recent history. 3 12. Delaware’s Firearms Laws 4 152. Delaware protects the public by prohibiting machine guns, the irresponsible sales 5 of firearms, and the unauthorized possession and use of firearms by certain categories of persons 6 who constitute dangerously high levels of risk to others. Delaware’s scheme to provide this 7 protection is rendered entirely ineffective if the Government’s “temporary modification” is 8 permitted to proceed. Delaware will be substantially and irreparably harmed if it is unable to 9 enforce its laws to protect individuals in Delaware from these risks and ensure public safety and 10 11 security. 153. Delaware restricts the possession of firearms by several categories of individuals 12 through the crime Possession of a Deadly Weapon by a Person Prohibited, with some narrow 13 exceptions. See11 Del. C.§ 1448. Persons convicted of felony offenses in Delaware or 14 elsewhere, persons who have been civilly committed due to a serious mental illness and are a 15 danger to themselves or others, those convicted of drug offenses, those convicted of crimes of 16 domestic violence or who are subjects of a Protection from Abuse Order, those who fail to appear 17 for court when charged with a felony, and those who possess illegal drugs and firearms at the 18 same time are all prohibited from possessing firearms by Delaware law. Delaware has 19 determined that each of these categories of individuals create an unreasonably high risk of danger 20 if permitted to possess a firearm. A conviction under this statute, where the person’s prohibited 21 status is based on a recent prior conviction, requires a mandatory minimum period of 22 incarceration of 3 years or longer in prison. 11 Del. C.§ 1448 (e). The Government’s proposed 23 action subverts Delaware’s judgment and ignores the high risk to people living, working, and 24 visiting Delaware. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 48 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 49 of 82 1 154. Delaware requires criminal history background checks as a precondition, again 2 with narrow exceptions, to the sale of any firearm in the State of Delaware by licensed or 3 unlicensed sellers or transferors. 11 Del. C.§§ 1448A, 1448B. This requirement will be entirely 4 frustrated if the Government’s course of action is permitted to proceed. The Government’s action 5 assist with transfers in violation of Delaware law and therefore substantially undermines 6 Delaware’s compelling state interests. 7 155. In Delaware, it is also a crime to give a firearm to a person prohibited, 11 Del. C. Del. C.§ 1456, and to possess a 8 § 1454, to unlawfully permit a minor access to a firearm, 11 9 machine gun or any weapon adaptable for use as a machine gun, 11Del. C.§ 1444. The 10 Government’s action obviates Delaware’s statutory protections, muddles an important 11 enforcement paradigm, and creates an unnecessary conflict with state law. 12 156. Each of these vital, protective measures designed to keep the Delaware public 13 safe and secure are vitiated if the Government’s actions are implemented. Long-standing 14 regulations designed to foster community safety are rendered meaningless if any person can turn 15 on a computer and 3-D printer in the privacy of their home and cheaply and quickly manufacture 16 a fully-functioning firearm. Lacking any serial number, Delaware will be unable to trace these 17 firearms. Because they are made of non-metallic components, these firearms will easily evade 18 detection in public spaces. The Government’s action in encouraging and facilitating the violation 19 of Delaware laws not only constitutes a gross encroachment on Delaware’s constitutional and 20 sovereign authority to exercise reasonable and long-respected police powers, it puts people in 21 Delaware at unacceptable levels of unjustified risk. 22 13. Hawaii’s Firearms Laws 23 157. Hawaii’s firearm death rate – 4.5 deaths per 100,000 persons in 2016 – is very 24 low compared to other states, and Hawaii’s extensive scheme of firearm regulation is likely part FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 49 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 50 of 82 1 of the reason. See National Center for Health Statistics, Firearm Mortality by State, 2 https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm. 3 requires persons to obtain a permit prior to acquiring a firearm by purchase, gift, inheritance, 4 bequest, or in any other manner. Hawaii Revised Statutes (“HRS”) § 134-2(a) (2011 & Supp. 5 2017). The process to obtain a permit involves a 14-day waiting period, a criminal background 6 check, fingerprinting and photographing, disclosure of the applicant’s name, address, sex, height, 7 weight, date of birth, place of birth, country of citizenship, social security number, alien or 8 admission number, and information regarding the applicant’s mental health history. 9 HRS § 134-2(b) & (e). The applicant must sign a waiver allowing access to the applicant’s Hawaii law 10 mental health records. HRS § 134-2(c). The applicant generally must be 21 years of age or more. 11 HRS § 134-2(d). Prior to receiving a permit for a pistol or revolver, the applicant must complete 12 an approved hunter education course or a firearm safety or training course. HRS § 134-2(g). 13 158. Hawaii law also requires firearms brought into the state and firearms acquired 14 in-state pursuant to HRS § 134-2 to be registered within five days of arrival or acquisition. HRS 15 §134-3(a) & (b). The following information must be provided during registration: the name of 16 the manufacturer and importer; model; type of action; caliber or gauge; serial number; and 17 source, including name and address of the prior registrant. HRS § 134-3(b). If the firearm does 18 not have a serial number, the permit number must be engraved upon the receiver portion of the 19 firearm. Id. The person registering is subject to fingerprinting and photographing, as well as a 20 criminal background check. HRS § 134-3(a). 21 159. Hawaii law prohibits possession of firearms and ammunition by certain classes 22 of individuals, including: fugitives from justice; persons prohibited from possessing firearms or 23 ammunition under federal law; persons under indictment or complaint; convicted felons; persons 24 convicted of a crime of violence or illegal sale of drugs; persons under treatment for addiction FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 50 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 51 of 82 1 to drugs or alcohol; persons acquitted of a crime by reason of mental disease, disorder, or defect; 2 persons diagnosed with a significant behavioral, emotional, or mental disorder, or treated for 3 organic brain syndromes; certain persons under age 25 who were adjudicated by the family court; 4 minors under treatment for addiction to drugs or alcohol, who are fugitives from justice, or who 5 were found not responsible due to mental disease, disorder, or defect; and persons subject to a 6 restraining order or order for protection. HRS § 134-7(a)-(e). 7 160. Hawaii law also prohibits certain classes of firearms and firearm components, 8 including: 9 mufflers, silencers, bump stocks, multiburst trigger activators, trigger cranks, and large capacity 10 magazines for pistols in excess of 10 rounds. HRS § 134-8; 2018 Haw. Sess. Laws Act 157, §1. 11 161. assault pistols, automatic firearms, short-barreled rifles, sawed-off shotguns, Hawaii law further enables the seizure of firearms upon disqualification: HRS § 12 134-13 (revocation of any permit or license by issuing authority or by a court for good cause); 13 HRS § 134-7(f) (restraining order may include immediate surrender of firearms); HRS § 134-7.3 14 (seizure upon admission to psychiatric facility or emergency or involuntary hospitalization); 15 HRS § 134-7.5 (immediate seizure of firearms in domestic abuse situations by responding police 16 officers). 17 162. All of these regulations could be circumvented and effectively nullified if persons 18 may use CAD files to produce firearms on 3-D printers. Hawaii’s strong interest in protecting 19 public safety will be severely harmed. 20 14. Illinois’s Firearms Laws 21 163. The State of Illinois recognizes that regulation of the possession, carriage, sale, 22 transfer, and manufacture of firearms is vital to promote and protect the health, safety, and 23 welfare of the public. See Horsley v. Trame , 808 F.3d 1126, 1132 (7th Cir. 2015) (“[I]t is clear 24 that Illinois has an important and compelling interest in its citizens’ safety” and in “protecting FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 51 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 52 of 82 1 the public from firearms violence.”). Illinois has exercised its police power and enacted a 2 comprehensive regulatory and criminal scheme governing the possession and acquisition of 3 firearms, see430 ILCS 65/0.01 et seq ., 720 ILCS 5/24-1; the public carriage of firearms,see430 4 ILCS 66/1 et seq ., 720 ILCS 5/24-1; and the sale, delivery, or manufacture of firearms, see720 5 ILCS 5/24-1, 24-3. 6 164. The Illinois Firearm Owner’s Identification Card Act establishes a licensure 7 system that identifies persons who are not qualified to possess firearms within the State. Among 8 other reasons, an individual is ineligible for a license to possess a firearm if he has been convicted 9 of a felony, has been a patient in a mental health facility within the past five years, is subject to 10 an existing order of protection prohibiting him from possessing a firearm, has been convicted of 11 battery, assault, or aggravated assault within the last five years, has been convicted of domestic 12 battery, has been involuntarily admitted into a mental health facility, is a person with an 13 intellectual or developmental disability, or is prohibited from possessing or acquiring firearms 14 by any Illinois or federal statute. 430 ILCS 65/4, 65/8. If an individual becomes ineligible during 15 the licensure period, the Illinois State Police shall revoke his license and require him to disclose 16 and dispose of the firearms in his possession. 430 ILCS 65/8, 65/9.5. To ensure continued 17 compliance with these eligibility requirements, Illinois imposes notification requirements on 18 circuit court clerks, medical professionals, law enforcement officers, certain state officials, and 19 school administrators. 430 ILCS 65/8.1. 20 165. The Illinois Firearm Concealed Carry Act is a comprehensive statutory licensure 21 regime for public carriage of firearms. In addition to satisfying enumerated eligibility 22 requirements, applicants for this license must not pose a danger to themselves, others, or the 23 public safety, and law enforcement agencies may submit objections to applicants on these 24 grounds. 430 ILCS 66/10, 66/15, 66/25. As part of the licensure process, the applicant must FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 52 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 53 of 82 1 complete a firearms training course and the Illinois State Police conducts a comprehensive 2 background search of the applicant. 430 ILCS 66/35, 66/75. Additionally, Illinois will issue a 3 concealed carry license to nonresidents only if their home States have a regulatory scheme 4 governing ownership, possession, and carriage that is substantially similar to the regime 5 established in Illinois. 430 ILCS 66/40(b). As part of its comprehensive scheme, Illinois law 6 restricts the places where a firearm may be legally carried by a licensee. 225 ILCS 10/7; 430 7 ILCS 66/65; 720 ILCS 5/24-1(a)(10); 89 Ill. Admin. Code § 402.8(i). 8 9 166. Illinois also regulates the sale or delivery of firearms, requiring a waiting period after an application to purchase a firearm has been made; restricting the sale of firearms to 10 minors, individuals with certain criminal convictions, individuals addicted to narcotics, 11 individuals who have been a patient in a mental health institution in the last five years, and 12 individuals with an intellectual disability; and prohibiting the sale of firearms containing parts 13 from certain nonhomogeneous metals. 720 ILCS 5/24-3. 14 167. Additionally, Illinois law provides that it is a felony to manufacture machine 15 guns, rifles and shot guns of a certain length, and certain types of ammunition. 720 ILCS 5/24- 16 1(a)(7), 24-2.2. 17 168. The Government’s actions severely undermine Illinois’s ability to enforce this 18 comprehensive regulatory and criminal regime regarding the possession, carriage, sale, and 19 manufacture of firearms. This, in turn, poses an unacceptable and serious risk to the public 20 health, safety, and welfare. 21 15. Iowa’s Firearm Laws 22 169. The State of Iowa enacted comprehensive regulation to govern the acquisition, 23 possession, and use of firearms to bar access to these weapons by persons who lack the maturity 24 or judgment to safely possess and use these weapons and to bar possession by those who pose a FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 53 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 54 of 82 1 2 danger to others. 170. Iowa regulates acquisition of pistols and revolvers by requiring a government- 3 issued permit to acquire these weapons and by providing criminal penalties for acquiring or 4 transferring these weapons without a permit.12 Iowa Code §724.15 and §725.16. Issuance of this 5 permit requires query of the national instant criminal background check and proof of identity. 6 Iowa Code §724.17. Persons who are under the age of twenty-one, are convicted felons, have 7 been convicted of a misdemeanor crime of domestic violence, or who are subject to protective 8 orders or barred under federal law from shipping, transporting, possessing or receiving a firearm 9 are ineligible to receive a permit to acquire pistols and revolvers. Iowa Code §724.15(1). 10 171. Iowa law generally bars the carrying of concealed dangerous weapons anywhere, 11 and carrying a pistol, revolver, or loaded firearm within a city. Iowa Code §724.4. Iowans may 12 avoid this prohibition by applying for and receiving a permit to carry weapons. Iowa Code 13 724.4(4)(i). Nonprofessional permits to carry weapons may be issued to persons twenty-one 14 years of age and older. Iowa Code 724.8. Persons seeking a permit are required to file an 15 application, undergo a criminal history background check, and complete a firearm safety course. 16 Iowa Code §724.7-10. Professional permits may be issued to peace officers and other 17 security-related professionals over 18 years of age. Iowa Code Section 724.6. People holding a 18 valid permit to carry weapons may use this permit to acquire pistols and revolvers in lieu of the 19 permit to acquire issued under Iowa Code 724.15. 20 172. Iowa limits access to pistols and revolvers by persons under the age of twenty- 21 one by providing a general ban and criminal penalties to those who sell, loan, give or make 22 available these weapons to persons under twenty-one. Iowa Code §724.22. This statute provides 23 24 12 Permits are not required for transfers between federally licensed firearms dealers for certain antique firearms, transfers on the behalf of a law enforcement agency, and transfers between close relatives. Iowa Code §724.15(2). FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 54 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 55 of 82 1 exemptions to this general ban, allowing minors to possess pistols and revolvers under the direct 2 supervision of their parents, guardians, spouses or instructors. Id. 3 173. Iowa law seeks to limit unsupervised access to rifles and shotguns by minors by 4 providing criminal penalties to those who sell, loan, give, or make these weapons available to 5 persons under eighteen years of age without the consent of their parent, guardian, or adult spouse. 6 Iowa Code §724.22. Iowa provides criminal and civil liability for parents and guardians who 7 store loaded firearms in a manner likely to allow access without permission by a minor under 8 fourteen or allows possession of a pistol or revolver by a person under fourteen years of age. 9 Iowa Code §724.22(6) & (7). 10 174. Iowa law limits access of firearms to potentially dangerous persons by providing 11 a felony offense for convicted felons who possess, receive, transport, or have dominion or control 12 over firearms. Iowa Code §724.26. This statute extends this firearm bar to persons previously 13 convicted of misdemeanor crimes of domestic violence and those subject to certain domestic 14 protective orders. Iowa Code §726(2)(a). 15 175. Iowa law limits access to weapons by persons with diminished capacity. Iowa 16 Code §724.31 requires Iowa courts that adjudicate a person as a mental defective or commit a 17 person to a mental institution to report that adjudication to the Iowa Department of Public Safety 18 for inclusion in the National Instant Criminal Background Check database as provided by 19 18 U.S.C. §922(d)(4) and (g)(4). Iowa Code §724.31. 20 176. Iowa law prohibits persons from being issued a permit to carry weapons who are 21 addicted to the use of alcohol, have been convicted of within the previous three years of a serious 22 or aggravated misdemeanor assault charge, or where probable cause exists from documented 23 actions to believe the person is likely use a weapon unlawfully. Iowa Code §724.8. 24 177. The above-cited protections under Iowa’s current weapons statutes will be FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 55 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 56 of 82 1 severely weakened if people are able to bypass this system by downloading plans and using a 2 3-D printer to make their own firearms. 3 16. Minnesota’s Firearms Laws 4 178. In the exercise of its police powers, the State of Minnesota has regulated firearms 5 6 in the interest of public safety. 179. For example, Minnesota law prohibits some people from using or possessing 7 firearms, including certain individuals who have been convicted of a felony; have a mental 8 illness or developmental disability; have been convicted of controlled substance crimes; have 9 been committed to a treatment facility due to chemical dependency; have been convicted of 10 domestic-violence-related crimes; or are subject to an order for protection. Minn. Stat. 11 § 624.713, subd. 1. It is also unlawful to knowingly transfer a firearm to such persons. 12 Minn. Stat. §§ 624.7133, 624.7141. 13 180. Minnesota similarly regulates the sale or transfer of certain firearms. For 14 example, an individual seeking to acquire a firearm may apply for a transferee permit by 15 providing personal information to local law enforcement. Minn. Stat. § 624.7131, subd. 1. Local 16 law enforcement then conducts a background check to ensure that the individual is not prohibited 17 from possessing a firearm. Id., subd. 2, 4.Within seven days, law enforcement will either issue 18 a transferee permit or provide written notification that the application has been denied with the 19 specific reason for the denial. Id., subd. 5. 20 181. If the proposed purchaser of certain firearms does not have a transferee permit, 21 the proposed seller and the prospective buyer must submit a report to local law enforcement with 22 personal information of the proposed transferee and the address of the seller’s business. Minn. 23 Stat. §624.7132, subd. 1. Local law enforcement then conducts a background check to ensure 24 that the individual is not prohibited from possessing a firearm. Id., subd. 2-3. The seller may not FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 56 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 57 of 82 1 transfer the firearm to the buyer for at least five business days after the report is delivered to 2 local law enforcement. Id., subd. 4. 3 182. Minnesota also regulates the carrying of firearms in public. For example, subject 4 to some exceptions, rifles, shotguns, and semiautomatic military-style assault weapons cannot 5 be carried in public places. Minn. Stat. § 624.7181. And pistols may not be carried in public 6 without a permit to carry. Minn. Stat. § 624.714, subd. 1. Applications for permits to carry are 7 submitted in person to local law enforcement. Id., subd. 2-3. The applicant must be at least 21 8 years old, trained in the safe use of a pistol, not prohibited from possessing a firearm, not listed 9 in the criminal gang investigative data system, and not a danger to themselves or the public. Id.; 10 Minn. Stat. § 624.714, subd. 6(a)(3). The applicant must also provide personal information, a 11 photocopy of their training certificate, and a photo identification. Id., subd. 3(a), (c). Local law 12 enforcement then conducts a background check to ensure that the individual is not prohibited 13 from possessing a firearm. Id., subd. 4. 14 183. Even with a permit to carry, an individual carrying a firearm may not remain in a 15 private establishment if they know that the establishment has made a reasonable request that 16 firearms not be brought onto the premises. Id., subd. 17. Employers and educational institutions 17 may also restrict the carrying or possession of firearms. Id., subd. 18. Individuals also may not 18 carry while under the influence of alcohol or controlled substances. Minn. Stat. § 624.7142. 19 184. In addition, Minnesota prohibits certain firearms, like for example, machine guns, 20 short-barreled shotguns, and Saturday night special pistols, which are pistols made with material 21 that has a melting point of less than 1,000 degrees Fahrenheit, material that has an ultimate tensile 22 strength of less than 55,000 pounds per square inch, or powdered metal having a density of less 23 than 7.5 grams per cubic centimeter. 24 Minn. Stat. § 624.716. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL Minn. Stat. § 609.67; Minn. Stat. § 624.712, subd. 4; 57 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 58 of 82 1 185. Proliferation of untraceable, undetectable 3-D printed guns is a threat to public 2 safety in Minnesota. By allowing this proliferation, Defendants undermine Minnesota’s firearm 3 laws and the safety of Minnesota residents. 4 17. North Carolina’s Firearms Laws 5 186. North Carolina has a broad statutory scheme to regulate firearms that is intended 6 to keep firearms out of the hands of persons ineligible to possess them. Unlike other states, North 7 Carolina also has specific laws precluding the manufacture and possession of a variety of 8 automatic firearms and firearms that do not have serial numbers or identifying marks. These 9 firearms are of the type that can be produced on a 3D printer. 10 187. Under North Carolina law, it is unlawful for any person, firm, or corporation to 11 sell, give away, transfer, purchase, or receive, at any place within the state, any pistol, unless the 12 purchaser or receiver obtains a license or permit from the sheriff of the county in which the 13 purchaser or receiver resides, or the purchaser or receiver possesses a valid North Carolina issued 14 concealed carry permit. This requirement to obtain a permit prior to the transfer of a pistol applies 15 not only to a commercial transaction, but also between private individuals or companies 16 throughout North Carolina. A permit expires after five years, and a violation of the pistol permit 17 law is a Class 2 misdemeanor under North Carolina law. N.C.G.S. § 14-402(a). 18 188. North Carolina law also requires permits to receive or purchase a handgun. 19 N.C.G.S. § 14-402. The county sheriff is only authorized to issue a permit after a county resident 20 submits an application establishing that the applicant is of good moral character and that the 21 person, firm, or corporation wants to possess the weapon for one of the following purposes: 22 a. The protection of the applicant’s home, business, person, family, or property; 23 b. Target shooting; 24 c. Collecting; or FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 58 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 59 of 82 1 d. Hunting 2 Additionally, the sheriff must conduct a background check to verify, before the issuance of a 3 permit, that the person is not ineligible to purchase or possess a handgun. N.C.G.S. §14-404(a). 4 189. A handgun permit cannot be issued if the applicant,inter alia : (1) has been 5 convicted in any state or federal court of a felony or has currently pending felony charges; (2) is 6 a fugitive from justice; (3) is addicted to drugs; (4) has been adjudicated incompetent or 7 committed to a mental institution; (5) is an alien illegally or unlawfully in the United States; 8 (6) has been dishonorably discharged from the U.S. armed forces; or (7) is subject to certain 9 restraining and no-contact orders. N.C.G.S §14-404(c). 10 190. A court in any domestic violence protective order can also prohibit a party from 11 possessing, purchasing, or receiving a firearm for a time fixed in the order, the violation of which 12 is a felony. N.C.G.S. § 50B-3.1. 13 191. Every dealer in pistols and other weapons mentioned in Article 52A of the N.C. 14 General Statutes must keep accurate records of all sales, including the name, place of residence, 15 date of sale, etc., of each person, firm, or corporation to whom sales are made. N.C.G.S. 16 § 14-406, N.C.G.S. § 14-408. 17 192. It is unlawful for any person, firm, or corporation to manufacture, sell, give away, 18 dispose of, use or possess machine guns, submachine guns, or other like weapons. A machine 19 gun or submachine gun means any weapon which shoots, is designed to shoot, or can be readily 20 restored to shoot, automatically more than one shot, without manual reloading, by a single 21 function of the trigger. This includes the frame or receiver of any such weapon, any combination 22 of parts designed and intended for use in converting a weapon into a machine gun, and any 23 combination of parts from which a machine gun can be assembled if such parts are in the 24 possession or under the control of a person. N.C.G.S. § 14-409. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 59 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 60 of 82 1 193. It is unlawful for any person to manufacture, assemble, possess, store, transport, 2 sell, offer to sell, purchase, offer to purchase, deliver, give to another, or acquire any weapon of 3 mass death and destruction. A weapon of mass death and destruction includes any firearm 4 capable of fully automatic fire; any shotgun with a barrel length less than eighteen inches, or an 5 overall length of twenty-six inches; a rifle with a barrel length of less than sixteen inches or an 6 overall length of less than twenty six inches; any muffler or silencer for any firearm, any 7 combination of parts designed or intended for use in converting a device into any weapon 8 described above, and from which a weapon of mass death and destruction may readily be 9 assembled. A device which could convert a semi-automatic firearm into one capable of full 10 11 automatic fire would be in violation of this statute. N.C.G.S. § 14-288.8. 194. It is unlawful for any person to alter, deface, destroy, or remove the permanent 12 serial number, manufacturer’s identification plate, or other permanent distinguishing number or 13 identification mark from any firearm with the intent to conceal or misrepresent the identity of 14 the firearm. Additionally, it is unlawful for any person to knowingly sell, buy, or be in possession 15 of any firearm on which the permanent serial number, manufacturer’s identification plate, or 16 other permanent distinguishing number or identification mark has been altered, defaced, 17 destroyed, or removed for the purpose of concealing or misrepresenting the identity of the 18 firearm. Such a violation is punishable as a felony. N.C.G.S. § 14-160.2. 19 195. North Carolina’s compelling state interests in keep the public safe by keeping 20 guns out of the hands of those ineligible to possess them and to restrict the manufacture and 21 possession of automatic and untraceable weapons would be irreparably harmed if the 22 Government’s action is allowed to stand. 23 18. Rhode Island’s Firearms Laws 24 196. Rhode Island law establishes procedures for the lawful possession of firearms as FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 60 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 61 of 82 1 well as certain restrictions regarding the manufacturing and possession of firearms. These 2 procedures and restrictions are designed “to prevent criminals and certain other persons from 3 acquiring firearms generally and handguns in particular without at the same time making unduly 4 difficult such acquisition for other members of society.” Gadomski v. Tavares , 113 A.3d 387, 5 298 (R.I. 2015) (quoting State v. Storms , 308 A.2d 463, 466 (R.I. 1973)). 6 197. In Rhode Island, with certain exceptions, “[n]o person shall, without a license or 7 permit . . . carry a pistol or revolver in any vehicle or conveyance or on or about his or her person 8 whether visible or concealed[.]” R.I. Gen. Laws § 11-47-8. 9 198. The licensing authorities of any city or town in Rhode Island shall issue a license 10 or permit to a person over the age of twenty-one (21) to carry a concealed firearm upon his or 11 her person, provided the applicant has “good reason to fear an injury to his or her person or 12 property or has any other proper reason for carrying a pistol or revolver, and that he or she is a 13 suitable person to be so licensed.” R.I. Gen. Laws § 11-47-11(a). In such a case, the applicant 14 must comply and satisfy certain qualifications. SeeR.I. Gen. Laws § 11-47-15. Furthermore, the 15 Attorney General of Rhode Island “may issue a license or permit to any person twenty-one (21) 16 years of age or over to carry a pistol or revolver, whether concealed or not, upon his or her person 17 upon a proper showing of need[.]” R.I. Gen. Laws § 11-47-18(a). 18 199. Rhode Island General Laws § 11-47-5(a) also provides that “[n]o person shall 19 purchase, own, carry, transport, or have in his or her possession any firearm,” if that person has 20 been convicted of a “crime of violence,” is a fugitive from justice, been convicted or pled nolo 21 contendere to an offense punishable as a felony, or has been convicted or pled nolo contendere 22 to certain other enumerated offenses. SeeR.I. Gen. Laws § 11-47-5(a)(4)(i)-(iv). In addition, 23 “[n]o person shall purchase, carry, transport, or have in his or her possession any firearm” if that 24 person is subject to a domestic abuse restraining order, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 61 seeR.I. Gen. Laws § 11-47-5(b), nor ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 62 of 82 1 shall any person subject to community confinement or subject to electronic surveillance or 2 monitoring as a condition of parole “purchase, carry, transport, or have in his or her possession 3 any firearm.” R.I. Gen. Laws § 11-47-5(c). Upon pleading nolo contendere or upon conviction 4 of certain enumerated offenses, a defendant must “surrender all firearm(s) owned by the 5 defendant, or in the defendant’s possession, care, custody, or control[.]” R.I. Gen. Laws 6 § 11-47-5.3(a). 7 200. In addition to the above paragraph, Rhode Island law also provides that “[n]o 8 person who is under guardianship or treatment or confinement by virtue of being a mental 9 incompetent, or who has been adjudicated or is under treatment or confinement as a drug addict, 10 shall purchase, own, carry, transport, or have in his or her possession or under his or her control 11 any firearm.” R.I. Gen. Laws § 11-47-6. 12 201. A person, firm or corporation in Rhode Island may make and sell a machine gun 13 or parts for the same only if issued a license by the Attorney General of Rhode Island. R.I. Gen. 14 Laws § 11-47-19. 15 202. Rhode Island law also provides that “[n]o person shall change, alter, remove, or 16 obliterate the name of the maker, model, manufacturer’s number . . . [or] other mark of 17 identification on any firearm.” R.I. Gen. Laws § 11-47-24(a). Additionally, “[n]o person shall, 18 absent recertification paperwork, knowingly receive, transport, or possess any firearm which has 19 had the name of the maker or manufacturer’s serial number removed, altered, or obliterated, or 20 if there is no name of the maker, model, or manufacturer’s number then any other mark of 21 identification of any firearm.” R.I. Gen. Laws § 11-47-24(b). Violation of these provisions is a 22 felony. R.I. Gen. Laws § 11-27-24(g). 23 24 203. Rhode Island also recently enacted a so-called “red flag” law, which provides a procedure where a petition may be filed in a court of law “requesting an extreme risk protection FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 62 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 63 of 82 1 order that shall enjoin the respondent from having in their possession, custody or control any 2 firearms and shall further enjoin the respondent from purchasing, receiving or attempting to 3 purchase or receive any firearms while the order is in effect.” SeeR.I. Gen. Laws § 8-8.3-3. 4 204. The Government Defendants’ “temporary modification” of the USML 5 Category 1 to allow “any United States person” to “access, discuss, use, reproduce, or otherwise 6 benefit from” CAD files for the automated production of 3-D printed weapons obfuscates, 7 hinders, and contravenes Rhode Island law regarding the regulation of firearms. 8 currently prohibited from possessing firearms – or persons allowed to possess a firearm(s) after 9 proper licensing, qualification, and/or medical review – will be able to circumvent and violate Persons 10 Rhode Island law by manufacturing such a weapon on a 3D printer. Moreover, by virtue of their 11 production on a 3D printer, these weapons will be unmarked, without identifying marks, and 12 untraceable in violation of Rhode Island law. The Government’s actions will cause irreparable 13 injury to Rhode Island and its citizens if allowed to stand. 14 19. Vermont’s Firearms Laws 15 205. Vermont also has a comprehensive statutory scheme for regulating the possession 16 and sale of firearms. 17 206. Vermont prohibits certain persons from possessing firearms, including persons 18 who have been convicted of a violent crime, persons who have been adjudicated to pose “an 19 extreme risk of causing harm to himself or herself or another person,” and persons under 21 20 years of age who are not law enforcement officers, active or veteran members of the military, or 21 who have not satisfactorily completed an approved hunter safety course and been approved by 22 the state Commissioner of Fish and Wildlife. 13 Vt. Stat. Ann. §§ 4017, 4020, 4053. Moreover, 23 a person in Vermont who is adjudicated to be in need of treatment, under the State’s mental 24 health laws, is barred by federal law from possessing a firearm. See13 Vt. Stat. Ann., tit. 13, § FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 63 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 64 of 82 1 4824; tit. 18, § 7617a; 18 U.S.C. § 922(g)(4). A mental health based prohibition on firearm 2 ownership cannot be removed absent a judicial ruling that the person is no longer in need of 3 treatment under Vermont law. SeeVt. Stat. Ann., tit. 13, § 4825. And courts in Vermont routinely 4 impose prohibitions on firearm ownership as conditions of probation for released adult and 5 juvenile offenders. SeeVt. Stat. Ann., tit. 28, § 252(b)(8); tit. 33, § 5262(b)(4). 6 207. Vermont recently enacted a universal background check system which requires 7 nearly all firearm transfers to be facilitated by a licensed firearms dealer who must determine 8 that the proposed transferee is not prohibited by state or federal law from possessing a firearm. 9 Vt. Stat. Ann., tit. 13, § 4019. 10 208. Vermont law also authorizes law enforcement officers to remove any firearms in 11 the immediate possession or control of a person being arrested or cited for domestic assault if 12 removal is necessary to protect he safety of the officer, the alleged victim, the arrestee, or a 13 family member of the arrestee or alleged victim. 13 Vt. Stat. Ann., tit. 13, § 1048. 14 209. Vermont law also imposes significant record-keeping requirements related to the 15 transfer of firearms. Firearms retailers are required to “record the sale . . . of all revolvers and 16 pistols, and the purchase by them of all secondhand revolvers and pistols . . . [which] shall 17 include the date of the transaction, the marks of identification of the firearm, including the 18 manufacturer’s name, the caliber, model and manufacturer’s number of the firearm.” Vt. Stat. 19 Ann., tit. 13 § 4006. These records must be preserved for six years and made available for 20 inspection by “all enforcement officers to inspect the same at all reasonable times.” Id. 21 210. These laws were enacted to protect the people of Vermont safe by keeping deadly 22 weapons out of the hands of persons who are most likely to use them to cause others harm and 23 to facilitate law enforcement investigations into gun-related crime. The Government’s 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 64 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 65 of 82 1 “temporary modification” will cause Vermont irreparable harm by undermining the State of 2 Vermont’s ability to enforce these laws and protect its residents. 3 20. Virginia’s Firearms Laws 4 211. While Virginia’s system of firearm regulation is not as comprehensive as that of 5 some of her sister states, even Virginia’s regulatory framework would be compromised under 6 the Government’s position. There are entire categories of persons that Virginia has determined 7 are prohibited from possessing various firearms. These categories would be obviated if the 8 Government’s “temporary modification” of the USML Category I allows “any United States 9 person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD files for the 10 11 automated production of 3-D printed weapons. 212. For example, it is a violation of Virginia law for any person who has been 12 acquitted on a charge of any felony and certain misdemeanors and ordinances by reason of 13 insanity and committed to the custody of the Commissioner of Behavioral Health and 14 Developmental Services to purchase, possess, or transport any firearm. Va. Code § 18.2-308.1:1. 15 Such an individual may never again possess a firearm unless he successfully petitions the court 16 for the restoration of that right. Id. Similarly, it is unlawful for any person who has been 17 adjudicated incapacitated from purchasing, possessing, or transporting a firearm. Va. Code 18 § 18.2-308.1:2. Again, such an individual may never again possess a firearm unless he 19 successfully petitions the court for the restoration of that right. Id. It is unlawful for any person 20 who has been involuntarily admitted to a facility or ordered to mandatory outpatient treatment 21 for a myriad of reasons from ever again purchasing, possessing, or transporting a firearm unless 22 he successfully petitions the court for the restoration of that right. Va. Code § 18.2-308.1:3. 23 24 213. Nor is mental acuity the only basis for restricting firearm possession. Virginia prohibits those persons convicted of felonies, certain misdemeanors, and those adjudicated FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 65 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 66 of 82 1 delinquent of certain offenses from knowingly and intentionally possessing or transporting any 2 firearm. Va. Code § 18.2-308.2. With limited exceptions, these are lifetime bans unless one 3 successfully petitions the court for restoration of that right. Id. 4 214. There are other, more limited circumstances in which firearm possession is 5 restricted, but the context of these circumstances demonstrates the importance of ensuring that 6 certain individuals do not have access to firearms. Individuals subject to protective orders may 7 not transport firearms. Va. Code § 18.2-308.1:4. Perhaps most importantly, those subject to 8 protective orders arising from family abuse may not even possess a firearm while the order is in 9 effect. Id. Further, those convicted of two misdemeanor drug possession offenses within 10 36 months are prohibited from transporting handguns until they complete a conviction-free 11 period of five years. Va. Code § 18.2-0308.1:5. It is also unlawful, and subject to an enhanced 12 penalty, to be in possession of a firearm while simultaneously in unlawful possession of a 13 controlled substance. Va. Code § 18.2-308.4. 14 215. In addition to possession, Virginia also prohibits an individual from bartering, 15 giving, or furnishing a firearm to those whom he knows are prohibited from possessing or 16 transporting a firearm. Va. Code § 18.2-308.2:1. Likewise, Virginia prohibits individuals from 17 furnishing handguns to minors. Va. Code § 18.2-309(B). These statutes evidence Virginia’s 18 public policy of ensuring that others not facilitate prohibited persons from obtaining firearms 19 that they may not lawfully possess. The CAD files in this case run completely contrary to that 20 public policy. 21 216. Restrictions also exist on the types of firearms allowable in Virginia. Of particular 22 relevance is the restriction against the manufacture, transfer, possession, or transportation of 23 plastic firearms. Va. Code § 18.2-308.5. “A ‘plastic firearm’ means any firearm . . . containing 24 less than 3.7 ounces of electromagnetically detectable metal in the barrel, slide, cylinder, frame FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 66 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 67 of 82 1 or receiver of which, when subjected to inspection by X-ray machines commonly used at 2 airports, does not generate an image that accurately depicts its shape.” Id. 3 217. If the “temporary modification” is left in place, the Commonwealth of Virginia— 4 home to such national security institutions as the Pentagon, the headquarters of the Central 5 Intelligence Agency, and the Norfolk Naval Base—will be irreparably harmed, as firearms 6 manufactured from the CAD files at issue will upend Virginia’s public safety regime. Those 7 prohibited from possessing and transporting firearms will be able to manufacture their own 8 untraceable guns with no accountability in short order. V. 9 Count I: Violation of the Administrative Procedure Act—Ultra Vires Conduct 10 11 12 218. 15 219. 18 19 20 21 22 23 Under the Administrative Procedure Act (APA), a court must set “aside agency action that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). 16 17 All of the foregoing allegations are repeated and realleged as though fully set forth herein. 13 14 CAUSES OF ACTION 220. The Government Defendants’ enactment of a “temporary modification” of the USML Category I so as to deregulate CAD files used for the production of 3-D printed guns constitutes a final agency action that isultra vires and should be set aside by the Court. Likewise, Defendants approval of the CAD files for public release and effective removal from USML Category I constitutes a final agency action that is ultra vires and should be set aside by the Court. 221. The Government Defendants may only exercise the authority conferred to them by statute. Neither the AECA nor ITAR confer upon the Government Defendants the power to 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 67 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 68 of 82 1 modify the USML Category I, temporarily or otherwise, without 30 days’ notice to the relevant 2 Congressional committees and without concurrence of the Defense Department. 3 222. Upon information and belief, the Government Defendants did not provide 4 advance notice of the proposed temporary modification to the House Committee on Foreign 5 Affairs and to the Committee on Foreign Relations of the Senate, and did not receive the 6 concurrence of the Secretary of Defense, before enacting the modification on July 27, 2018. 7 223. According to Rep. Engel, Ranking Member of the House Committee on Foreign 8 Affairs, notice of the terms of the settlement has not been provided by the President or the State 9 Department. See“Engel Decries State Department Policy to Allow 3-D Gun Printing,” Press 10 Release (July 20, 2018), available at https://democrats-foreignaffairs.house.gov/news/press- 11 releases/engel-decries-state-department-policy-allow-3-d-gun-printing, attached hereto as Ex. 8. 12 224. The Government Defendants also lack statutory authority to determine that the 13 Plaintiffs’ CAD files should be removed from the Category I list and approval of the CAD files 14 for public release without following the “established procedures” for commodity jurisdiction. 15 This is especially relevant here because, in effect, the “temporary modifications” and approval 16 for public release at issue will negate—in large part—the need for final rulemaking with respect 17 to the data at issue, because once the data is on the internet, the damage to the national security 18 and public safety in the State of Washington will be irreparable. 19 225. In addition, although ITAR allows the Deputy Assistant Secretary for Defense 20 Trade Controls to order the temporary modification of any ITAR regulation, it may do so only 21 “in the interest of the security and foreign policy of the United States.” 22 C.F.R. § 126.2. 22 226. The temporary modification enacted by DDTC on July 27, 2018 and the approval 23 of the CAD files for public release sent the same day are not in the interest of the security and 24 foreign policy of the United States, and, upon information and belief, Government Defendants FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 68 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 69 of 82 1 2 have made no determination otherwise. 227. In addition, Government Defendants lack statutory authority to permit “any 3 United States person” to “access, discuss, use, reproduce, or otherwise benefit” from CAD files 4 for the automated production of 3-D printed weapons, as this would allow “any United States 5 person” to manufacture, possess, and sell firearms made from the files. As such, this provision 6 would violate numerous provisions of Washington’s statutory scheme regulating firearms, 7 including laws that promote public safety by keeping guns out of the hands of minors, persons 8 convicted of violent felonies, the mentally ill, and persons subject to various protection and no- 9 contact orders. For similar reasons, this provision would also violate numerous provisions of the 10 federal Gun Control Act, including 18 U.S.C. § 922(x)(2) (prohibiting handgun possession by 11 minors), § 922(g) (prohibiting firearm possession by felons and domestic abusers), and § 922(p) 12 (prohibiting the manufacture of undetectable firearms). Government Defendants lack any 13 authority to amend, rescind, or waive any portion of these laws. 14 228. For these reasons, the State of Washington is entitled to a declaration that the 15 “temporary modification” is invalid, and an injunction requiring Government Defendants to 16 rescind the temporary modification and restore the status quo until a proper administrative 17 process is completed. 18 19 Count II: Violation of the Administrative Procedure Act—Action Not in Accordance with 20 229. 21 forth herein. 22 230. 23 24 All of the foregoing allegations are repeated and realleged as though fully set Under the APA, a court must set aside agency action that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 231. As alleged above, upon information and belief, Government Defendants did not FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 69 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 70 of 82 1 give 30 days’ notice to the required Congressional Committees or receive concurrence from the 2 Secretary of Defense before enacting the “temporary modification” of USML Category I to 3 remove the CAD files at issue from ITAR regulation on July 27, 2018 as well as the approval of 4 the CAD files for public release on the same day. 5 6 7 232. Upon information and belief, Government Defendants also did not follow established procedures before granting Defense Distributed an exception to ITAR jurisdiction. 233. Furthermore, it is unlawful for Government Defendants to permit “any United 8 States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD files for the 9 automated production of 3-D printed weapons, as this purports to allow prohibited individuals 10 to possess, manufacture, and sell firearms made using such files, in violation of existing state 11 and federal law. 12 234. For these reasons, the State of Washington is entitled to a declaration that the 13 “temporary modification” is invalid, and an injunction requiring Government Defendants to 14 rescind the temporary modification and restore the status quo until a proper administrative 15 process is completed. 16 17 18 19 20 21 22 23 Count III: Violation of the Administrative Procedure Act—Arbitrary and Capricious Age Action 235. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 236. Under the APA, a court must set “aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. § 706(2)(A). 237. A court may hold that an agency action is arbitrary and capricious when the 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 70 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 71 of 82 1 agency has failed to consider relevant evidence or articulate a satisfactory explanation for its 2 action. An agency’s departure from prior practice can serve as an additional basis for finding an 3 agency’s action to be arbitrary and capricious. 4 238. Upon information and belief, Government Defendants have provided no 5 explanation for the Government’s complete reversal of its position on the CAD files at issue. 6 The Government has released no reports, studies, or analyses to explain why CAD files for the 7 automated production of 3-D printed weapons should be removed from ITAR regulation or that 8 the files should be publically released. It appears that Government Defendants have also failed 9 to consider or acknowledge the serious national security concerns or the threat to public safety 10 11 posed to states, including the Plaintiff States, created by the export of the CAD files. 239. Government Defendants’ enactment of a “temporary modification” to exclude the 12 CAD files at issue from ITAR jurisdiction, the approval of the CAD files for public release, and 13 the agreement to permit “any United States person” to “access, discuss, use, reproduce, or 14 otherwise benefit from” the CAD files is arbitrary and capricious because the Government has 15 not offered a reasoned explanation for ignoring or countermanding its earlier factual 16 determinations. It is also arbitrary and capricious because it is contrary to the purposes of AECA, 17 which requires the State Department to administer AECA to reduce the international trade in 18 arms and avoid destabilizing effects abroad through arms export. See22 U.S.C. § 2751. It is also 19 arbitrary and capricious because it is an extreme infringement of the Plaintiff States’ sovereign 20 right to exercise its police power by enacting and enforcing public safety laws that restrict certain 21 persons’ possession of firearms and provide for licensing and tracking gun ownership. 22 240. For these reasons, the Plaintiff States are entitled to a declaration that the 23 “temporary modification” is invalid, and an injunction requiring Government Defendants to 24 rescind the temporary modification and restore the status quo until a proper administrative FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 71 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 72 of 82 1 process is completed. Count IV: Violation of the Tenth Amendment 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 241. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 242. The structure and limitations of federalism allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons. The police power is a critical function reserved to the States by the Tenth Amendment. 243. While the regulation of health and safety is primarily and historically a matter of State and local concern, the Federal Government can set uniform national standards in these areas—but only if Congress makes its intent to alter the usual constitutional balance between the States and the Federal Government “unmistakably clear” in the language of the statute. 244. Government Defendants’ enactment of a “temporary modification” to the USML permitting “any United States person” to “access, discuss, use, reproduce, or otherwise benefit from” CAD files for the automated production of 3-D printed weapons and the approval of the CAD files for public release purports to allow any U.S. citizen to manufacture and use an undetectable and untraceable weapon—regardless of their age, mental health status, or criminal history—in violation of Washington’s public safety laws. 245. Government Defendants’ action infringes on the Plaintiff States’ exercise of its police power and enforcement of its safety laws, including (i) prohibiting certain United States persons from possessing firearms—such as minors, persons convicted of violent felonies, the mentally ill, and persons subject to various protection and no-contact orders; (ii) regulating the acquisition and tracking the ownership of firearms; (iii) using serial numbers to trace weapons; 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 72 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 73 of 82 1 and (iv) keeping government buildings and other public places safe through the use of metal 2 detectors. 3 246. Government Defendants were not authorized by Congress to infringe upon the 4 Plaintiff States’ police power to this extreme degree, which is well outside the scope of any 5 authority delegated by AECA. 6 required administrative procedures before enacting the temporary modification, including 7 providing Congress with 30 days’ notice and obtaining the Secretary of Defense’s concurrence. 8 Rather, Government Defendants enacted the temporary modification unilaterally on July 27, 9 2018, completely reversing the Government’s previous position as to the CAD files at issue 10 11 Indeed, Government Defendants failed even to follow the while sidestepping Congressional review and flouting APA requirements. 247. As such, the State of Washington is entitled to a declaration that the “temporary 12 modification” is an unconstitutional violation of the Tenth Amendment, and an injunction 13 requiring Government Defendants to rescind the temporary modification and restore the status 14 quo until a proper administrative process is completed. VI. 15 16 17 PRAYER FOR RELIEF WHEREFORE, the State of Washington requests that the Court enter a judgment against Defendants and award the following relief: 18 a. Declare that the “temporary modification” of the USML Category I and ultra viresagency 19 the approval of the CAD files for public release are unlawful and 20 action, including to the extent it purports to permit “any United States person” to “use, 21 reproduce or otherwise benefit from” the files at issue in violation of state and federal 22 law; 23 24 b. Declare that the “temporary modification” of the USML Category I and approval of the CAD files for public release are an unconstitutional violation of the Tenth FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 73 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 74 of 82 1 2 3 4 Amendment; c. Declare that the “temporary modification” of the USML Category I and approval of the CAD files for public release are null and void; d. Issue an injunction requiring Defendants to rescind the “temporary 5 modification” of the USML Category I and to rescind the approval of the CAD files for 6 public release; 7 e. Issue an injunction prohibiting Defendants and anyone acting in concert 8 with them from taking any action inconsistent with the rescission of the “temporary 9 modification” of the USML Category I and the rescission of the approval of the CAD 10 files for public release; 11 f. Award the State its costs and reasonable attorneys’ fees; and 12 g. Award such additional relief as the interests of justice may require. 13 Respectfully submitted this 2nd day of August, 2018. 14 ROBERT W. FERGUSON Attorney General 15 /s/ Jeffrey Rupert JEFFREY RUPERT, WSBA #45037 Division Chief KRISTIN BENESKI, WSBA #45478 Assistant Attorney General TODD BOWERS, WSBA #25274 Deputy Attorney General JEFF SPRUNG, WSBA #23607 Assistant Attorney General JeffreyR2@atg.wa.gov KristinB1@atg.wa.gov ToddB@atg.wa.gov JeffS2@atg.wa.gov Attorneys for Plaintiff State of Washington 16 17 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 74 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 75 of 82 1 GEORGE JEPSEN Attorney General of Connecticut 2 /s/ Kimberly Massicotte KIMBERLY MASSICOTTE, CT-04111 Associate Attorney General /s/ Joseph Rubin JOSEPH RUBIN, CT-00068 Associate Attorney General /s/ Maura Murphy Osborne MAURA MURPHY OSBORNE, CT-19987 Assistant Attorney General Connecticut Office of Attorney General 55 Elm St. P.O. Box 120 Hartford, CT 06141-0120 Attorneys for Plaintiff State of Connecticut 3 4 5 6 7 8 9 10 BRIAN E. FROSH Attorney General of Maryland 11 /s/ Julia Doyle Bernhardt JULIA DOYLE BERNHARDT /s/ Jennifer Katz JENNIFER KATZ Assistant Attorneys General Office of the Attorney General 200 Saint Paul Place, 20th Floor Baltimore, MA 21202 (410) 576-7291 jbernhardt@oag.state.md.us jkatz@oag.state.md.us Attorneys for Plaintiff State of Maryland 12 13 14 15 16 17 18 GURBIR GREWAL Attorney General of New Jersey 19 20 /s/ Jeremy M. Feigenbaum JEREMY M. FEIGENBAUM Assistant Attorney General Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, 8th Floor, West Wing Trenton, NJ 08625-0080 (609) 376-2690 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 75 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 76 of 82 1 Jeremy.Feigenbaum@njoag.gov Attorneys for Plaintiff State of New Jersey 2 3 BARABARA D. UNDERWOOD Attorney General of New York 4 /s/ Barbara D. Underwood BARBARA D. UNDERWOOD Attorney General of New York 28 Liberty Street New York, NY 10005 5 6 7 8 MAURA HEALEY Attorney General of Commonwealth of Massachusetts 9 /s/ Jonathan B. Miller JONATHAN B. MILLER Assistant Attorney General Office of the Massachusetts Attorney General One Ashburton Place Boston, MA 02108 617-963-2073 Jonathan.Miller@state.ma.us Attorneys for Plaintiff Commonwealth of Massachusetts 10 11 12 13 14 15 JOSH SHAPIRO Attorney General of Commonwealth of Pennsylvania 16 17 /s/ Josh Shapiro JOSH SHAPIRO Attorney General Office of the Attorney General Strawberry Square, 16th Floor Harrisburg, PA 17120 (717) 787-3391 Attorneys for Plaintiff Commonwealth of Pennsylvania 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 76 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 77 of 82 1 KARL A. RACINE Attorney General for the District of Columbia 2 /s/ Robyn Bender ROBYN BENDER Deputy Attorney General Public Advocacy Division /s/ Jimmy Rock JIMMY ROCK Assistant Deputy Attorney General Public Advocacy Division Office of the Attorney General for the District of Columbia 441 4th Street N.W., Suite 630 South Washington, D.C. 20001 Attorneys for Plaintiff District of Columbia 3 4 5 6 7 8 9 ELLEN F. ROSENBLUM Attorney General of Oregon 10 11 /s/ Scott J. Kaplan SCOTT J. KAPLAN, WSBA #49377 Senior Assistant Attorney General Oregon Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 scott.kaplan@doj.state.or.us Attorneys for Plaintiff State of Oregon 12 13 14 15 16 17 XAVIER BECERRA Attorney General of California 18 /s/ Nelson R. Richards NELSON R. RICHARDS Deputy Attorney General /s/ Mark Beckington MARK BECKINGTON Supervising Deputy Attorney General /s/ Thomas Patterson THOMAS PATTERSON Senior Assistant Attorney General Attorneys for the State of California 19 20 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 77 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 78 of 82 1 CYNTHIA H. COFFMAN Attorney General of Colorado 2 /s/ Matthew D. Grove MATTHEW D. GROVE Assistant Solicitor General Colorado Department of Law 1300 Broadway, 6 th Floor Denver, Colorado 80203 Telephone: (720) 508-6157 FAX: (720) 508-6041 E-Mail: matt.grove@coag.gov Attorneys for Plaintiff State of Colorado 3 4 5 6 7 8 MATTHEW P. DENN Attorney General of Delaware 9 /s/ Ilona M. Kirshon ILONA M. KIRSHON (# 3705) Deputy State Solicitor State of Delaware Department of Justice Carvel State Office Building, 6th Floor Wilmington, DE 19801 (302) 577-8400 Ilona.kirshon@state.de.us 10 11 12 13 14 /s/ Patricia A. Davis PATRICIA A. DAVIS (# 3857) Deputy Attorney General State of Delaware Department of Justice Dover, DE 19904 (302) 257-3233 patriciaA.davis@state.de.us Attorneys for the Plaintiff State of Delaware 15 16 17 18 19 RUSSELL A. SUZUKI Attorney General of Hawaii 20 /s/ Robert T. Nakatsuji ROBERT T. NAKATSUJI Deputy Attorney General Department of the Attorney General 425 Queen Street Honolulu, Hawaii 96813 (808) 586-1360 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 78 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 79 of 82 1 Robert.T.Nakatsuji@hawaii.gov Attorneys for Plaintiff State of Hawaii 2 3 LISA MADIGAN Attorney General of Illinois 4 /s/ Brett E. Legner BRETT E. LEGNER Deputy Solicitor General /s/ Katelin B. Buell KATELIN B. BUELL /s/ Sarah A. Hunger SARAH A. HUNGER Assistant Attorneys General Office of the Attorney General 100 W. Randolph, 12th Floor Chicago, IL 60601 blegner@atg.state.il.us Attorneys for Plaintiff State of Illinois 5 6 7 8 9 10 11 12 THOMAS J. MILLER Attorney General of Iowa 13 /s/ Nathan Blake NATHAN BLAKE Deputy Attorney General Office of the Attorney General of Iowa 1305 E. Walnut St. Des Moines, IA 50319 (515) 281-4325 nathan.blake@ag.iowa.gov Attorneys for the Plaintiff State of Iowa 14 15 16 17 18 19 LORI SWANSON Attorney General of Minnesota 20 /s/ Jacob Campion JACOB CAMPION, MN Reg. #0391274 Assistant Attorney General Office of the Minnesota Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1459 jacob.campion@ag.state.mn.us 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 79 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 80 of 82 Attorneys for the Plaintiff State of Minnesota 1 2 JOSHUA H. STEIN Attorney General of North Carolina 3 /s/ Sripriya Narasimhan SRIPRIYA NARASIMHAN Deputy General Counsel North Carolina Department of Justice 114 W. Edenton St. Raleigh, NC 27603 Attorneys for Plaintiff State of North Carolina 4 5 6 7 8 PETER F. KILMARTIN Attorney General of Rhode Island 9 /s/ Michael W. Field MICHAEL W. FIELD /s/ Susan Urso SUSAN URSO Assistant Attorneys General 150 South Main Street Providence, Rhode Island 02903 (401) 274-4400 mfield@riag.ri.gov surso@riag.ri.gov Attorneys for Plaintiff State of Rhode Island 10 11 12 13 14 15 16 THOMAS J. DONOVAN, JR. Attorney General of Vermont 17 /s/ Benjamin D. Battles BENJAMIN D. BATTLES Solicitor General Office of the Attorney General 109 State Street Montpelier, Vermont 05609-1001 802-828-5500 benjamin.battles@vermont.gov Attorneys for Plaintiff State of Vermont 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 80 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 81 of 82 1 MARK R. HERRING Attorney General of the Commonwealth of Virginia 2 /s/ Samuel T. Towel SAMUEL T. TOWELL Deputy Attorney General, Civil Litigation Office of the Attorney General of Virginia Barbara Johns Building 202 N. Ninth Street Richmond, VA 23219 (804) 786-6731 STowell@oag.state.va.us Attorney for Plaintiff Commonwealth of Virginia 3 4 5 6 7 8 9 Pro HacVicemotions forthcoming for all counsel of record not barred in the Western District of Washington 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 81 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-01115-RSL Document 29 Filed 08/02/18 Page 82 of 82 DECLARATION OF SERVICE 1 2 I hereby certify that on August 2, 2018, I electronically filed the foregoing document 3 with the Clerk of the Court using the CM/ECF system, which will serve a copy of this document 4 upon all counsel of record. 5 DATED this 2nd day of August, 2018, at Seattle, Washington. 6 /s/ Jeffrey Rupert Assistant Attorney General 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 2:18-cv-01115-RSL 82 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744