UPDATE: Amended complaint adds states, brings total to 20.

Downloadable guns make weapons easier for criminals to obtain

SEATTLE — Attorney General Bob Ferguson today announced he is leading a multistate lawsuit to block a Trump Administration action that gives criminals and terrorists access to downloadable, untraceable and undetectable 3D-printed weapons. This lawsuit is being filed in federal court in Seattle. Massachusetts, Connecticut, New Jersey, Pennsylvania, Oregon, Maryland, New York and the District of Columbia joined Washington’s lawsuit.

In 2015, Defense Distributed, an organization dedicated to global distribution of open-source, downloadable 3D-printed guns, sued the federal government after the U.S. State Department forced the removal of the instruction manuals from the internet. The federal government successfully argued that the manuals violate firearm export laws before two federal judges. The United States Supreme Court declined to hear the case.

Then, in an abrupt reversal, the federal government settled the case on June 29, 2018. As part of the settlement, the Trump Administration will allow the downloadable guns for unlimited public distribution in any form. This will give anyone with a 3D printer access to these weapons.

Defense Distributed recently announced that on Aug. 1, it would upload the data files to the internet, essentially giving plug-and-play access to guns.

Ferguson filed a lawsuit today in the U.S. District Court for the Western District of Washington against The Trump Administration arguing the Trump Administration actions resulting from the settlement violate the Administrative Procedure Act and the Tenth Amendment. Ferguson also asks the court for a nationwide temporary restraining order, both to bar the federal government from lifting export controls for these tutorials, and to prevent Defense Distributed from posting the downloadable guns online.

“I have a question for the Trump Administration: Why are you allowing dangerous criminals easy access to weapons?” Ferguson said. “These downloadable guns are unregistered and very difficult to detect, even with metal detectors, and will be available to anyone regardless of age, mental health or criminal history. If the Trump Administration won’t keep us safe, we will.”

"It is deeply concerning that anyone could have the ability to create untraceable and potentially undetectable deadly weapons," said Governor Jay Inslee. "We must do whatever we can to keep criminals from acquiring and creating these guns. The Attorney General’s actions today are an important step in developing common sense gun measures that will help to protect public safety."

"Untraceable, unregulated and possibly undetectable 3-D printed guns present a significant threat to law enforcement, public safety and national security. Our country closely regulates the manufacture and sale of firearms to keep people safe. Making it easier for criminals or terrorists to evade those checks and get dangerous weapons with the click of a mouse makes us less safe,” said Seattle Mayor Jenny A. Durkan. “This presents a real danger to the residents of Seattle, and to everyone who relies on security to screen for weapons at an airport, a courthouse or a place of work. I commend Attorney General Ferguson for stepping in where the federal government has walked away - our state is taking a responsible step to make our communities safer places to live."

In defending against Defense Distributed’s lawsuit, the federal government previously stated it was “particularly concerned that [the] proposed export of undetectable firearms technology could be used in an assassination, for the manufacture of spare parts by embargoed nations, terrorist groups, or to compromise aviation security overseas in a manner specifically directed at U.S. persons.”

A federal judge in the Western District of Texas in 2015 rejected Defense Distributed’s effort to temporarily block the government’s regulation of its materials, finding that “facilitating global access to firearms undoubtedly increases the possibility of outbreak or escalation of conflict.”

After the appeal of that decision was rejected, and the Supreme Court declined to hear it, the federal government moved to dismiss Defense Distributed’s lawsuit in April of this year. It argued that the downloadable guns “can unquestionably facilitate the creation of defense articles abroad” and that “the Department of State has consistently and reasonably concluded that it is not possible to meaningfully curtail the overseas dissemination of arms if unfettered access to technical data essential to the production of those arms is permitted.”

If the federal government were not permitted to regulate the dissemination of the downloadable guns, it argued, “they could be used to threaten U.S. national security, U.S. foreign policy interests, or international peace and stability.”

Mere weeks later, Defense Distributed announced the case had settled. “The government surprised the plaintiffs by suddenly offering them a settlement with essentially everything they wanted,” according to a report from Wired magazine. The settlement agreement was not made public until July 10.

The Trump Administration settlement requires the government to “temporarily” waive export restrictions on Defense Distributed’s downloadable gun files. In order to do this legally, the Administration must get the concurrence of the Department of Defense and provide at least 30 days’ notice to Congress. The lawsuit alleges there is no evidence either of those steps have happened, which violates the Administrative Procedure Act.

The lawsuit also argues that the Trump Administration action is arbitrary and capricious, also in violation of the Administrative Procedure Act.

For example, there is no indication in the settlement agreement or elsewhere that any analysis, study or determination was made by the government defendants in consultation with other agencies, before the federal government agreed to lift export controls on the downloadable guns. In fact, the agreement states that it “does not reflect any agreed-upon purpose other than the desire of the Parties to reach a full and final conclusion of the Action, and to resolve the Action without the time and expense of further litigation.”

The lawsuit also argues the settlement violates the Tenth Amendment by infringing on states’ rights to regulate firearms. Washington has a robust regulatory system meant to keep firearms out of the hands of dangerous individuals. That system is jeopardized by the Trump Administration’s action and will be undermined by the distribution of Defense Distributed’s downloadable guns.

Ferguson’s lawsuit includes “necessary parties” Defense Distributed, the Second Amendment Foundation, and Conn Williamson, because they will be impacted by the relief he is seeking in this lawsuit.

Ferguson asks the court to consider the temporary restraining order prior to Wednesday, Aug. 1, when Defense Distributed has announced it will post its files online.

The Attorney General’s Office is 7-0 in cases against the Trump Administration that are completed and there are no more appeals. That does not include three additional successful outcomes that have been or could be appealed, including blocking President Trump’s ban on transgender individuals serving in the military and his attempt to end the Deferred Action for Childhood Arrivals (DACA) program. This is Ferguson’s 32nd lawsuit against the Trump Administration.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts: Brionna Aho, Communications Director, (360) 753-2727; brionna.aho@atg.wa.gov