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Proposed Intervenors The Brady Campaign to Prevent Gun Violence (“Brady” or “Brady
Campaign”), Everytown for Gun Safety Action Fund, Inc. (“Everytown”) and Giffords,
(collectively “Proposed Intervenors”) filed a Motion for Leave to Intervene in this action, Motion
for Temporary Restraining Order and Preliminary Injunction, and Motion for Emergency Hearing
on Temporary Restraining Order on July 25, 2018. (ECF Nos. 96, 96-1, 97, and 98). This Court
held a telephonic hearing on the motions on July 26, 2018 at 2:30 p.m. (ECF No. 101). At the
hearing, the Court determined that the parties’ interests would be best served by holding a hearing
on July 27, 2018, giving the parties additional time to prepare arguments and submit briefings, if
necessary. Proposed Intervenors respectfully submit this Supplemental Briefing in support of their
Motion for Leave to Intervene. Specifically, Proposed Intervenors would draw the Court’s
attention to 1) the timeliness of their Motion for Leave to Intervene, 2) the significant efforts
Proposed Intervenors have expended since learning of the Settlement Agreement, and 3) the fact
that Defense Distributed intends to post on the Internet numerous and significant files that are not
The Fifth Circuit “reject[s] the notion that the date on which the would-be intervenor
became aware of the pendency of the action should be used to determine whether it acted
promptly.” Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994). In fact, the Fifth Circuit urges
lower courts to “discourage premature intervention that wastes judicial resources.” Id. (citing
Stallworth v. Monsanto Co., 558 F.2d 257, 264 (5th Cir. 1977). Instead, courts should gauge a
potential intervenor’s timeliness by “the speed with which the would-be intervenor acted when it
became aware that its interest would no longer be protected by the original parties.” Id.
(emphasis added).
The Government Defendants were protecting Proposed Intervenors’ interest up until the
settlement. See e.g., ECF No. 92 (Motion to Dismiss Plaintiff’s Complaint, filed on April 6, 2018
On April 30, 2018, Defense Distributed filed a motion to stay this action, due to a tentative
settlement agreement reached by the parties. (ECF No. 93). This half-page motion merely
mentioned the existence of a tentative settlement; it did not mention the substance of said tentative
On June 28, 2018, the parties in this action filed a joint status report. (ECF No. 95). This
half-page report simply stated that the relevant governmental officials had approved the parties’
settlement agreement. Id. Again, it did not mention the substance of the settlement agreement.
On July 10, 2018, Everytown and Giffords first learned of the fact of the settlement.
the terms of the Settlement Agreement on July 17, 2018. (Damaskos Dec. ¶ 3). Everytown
received a copy of the Settlement Agreement on or about July 19, 2018. (Suplina Dec. ¶ 6).
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On July 12, 2018, the Brady Campaign first saw excerpts of what was purported to be the
Settlement Agreement. (Declaration of Joshua Scharff ¶ 3). The Brady Campaign only learned of
Each Proposed Intervenor sought intervention within 15 days after learning of the fact of
the Settlement Agreement. Everytown and Giffords sought leave to intervene roughly one week
after learning of the substance of the Settlement Agreement. It is unquestionable that Proposed
Intervenors acted promptly in seeking leave to intervene, upon learning that the Government was
An organization can demonstrate standing in its own right if it can show 1) it has diverted
significant resources to counteract the defendant’s conduct and, 2) there is a serious conflict
between the organization’s mission and the conflict at issue. Am. Civ. Rights Union v. Martinez-
Rivera, 166 F. Supp. 3d 779, 788 (W.D. Tex. 2015). Proposed Intervenors have diverted significant
resources to counteract the Settlement Agreement and the proliferation of 3-D printed guns.
Everytown has i) researched 3-D gun printing technology, feasibility and availability; ii)
researched the potential implications of making 3-D gun printing technology widely available; iii)
evaluated proposed legislation to address these issues; iv) created an information sheet to educate
the public on the development and implication of this case and the spread of 3-D firearms printing
technology; v) drafted emails, letters, and texts to supporters, members, legislators, and other allies
concerning these issues; vi) created and deployed social media content concerning these issues;
and vii) evaluated and implemented litigation strategies to prevent the above. (Suplina Dec. ¶ 7).
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Were it not for the efforts expended to counteract the Settlement Agreement, Everytown
would have devoted its resources to other gun violence prevention programs. Additionally, if the
Settlement Agreement were to go into effect, Everytown would be forced to continue this
by i) studying how to make gun safety laws effective against 3-D weapons, ii) working to pass
legislation to prohibit the manufacture of 3-D weapons, and iii) working with victims who will be
impacted by the loss of loved ones to 3-D weapons. (Suplina Dec. ¶¶ 7, 8).
Everytown works in all 50 states and in Congress to support the passage and enforcement
of gun safety laws that, among other things, help keep guns out of the hands of prohibited persons
and other individuals with dangerous histories and help law enforcement apprehend and prosecute
those who violate U.S. and state gun laws. (Suplina Dec. ¶ 3). There is a serious conflict between
Before learning of the Settlement Agreement, Brady expended substantial efforts and
diverted resources to (i) researching, drafting, and submitting an amicus brief in this litigation; and
(ii) researching, drafting, and submitting Comments to the Department of State Proposed Rule to
Amend the International Traffic in Arms Regulations: U.S. Munitions List Categories I, II, and III
and the Department of Commerce Proposed Rule Regarding Control of Firearms, Guns,
Ammunition and Related Articles the President Determines No Longer Warrant Control Under the
Since learning of the Settlement Agreement, Brady has expended substantial efforts and
diverted significant resources to the issue of preventing the spread of 3-D printed firearms,
including: (i) drafting and submitting two FOIA requests regarding the Settlement Agreement and
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its surrounding circumstances; (ii) internally researching the issue, its reach, and its dangers; (iii)
educating and updating others about the issue, including individuals and organizations in fields
such as gun violence prevention, public health, and public service; (iv) communicating with Brady
supporters, members, legislators and the public regarding the dangers of 3-D printed firearms; as
well as (v) work related to bringing the instant legal action. (Scharff Dec. ¶ 5).
If Brady had not diverted substantial resources toward this issue, Brady would have been
able to expend these resources in furtherance of its mission to create a safer future for every
American where hundreds of gun injuries and deaths a day are no longer normal, including by (i)
working on the following impact-driven solutions on which it focuses to further its mission of
reducing gun deaths: a) strengthening gun laws, with a particular focus on the national background
check system, b) reducing the flow of crime guns to urban communities most impacted by gun
violence, and c) meaningfully communicating to gun owners about the dangers of loaded, unlocked
guns in the home; (ii) fighting in the courts to defend gun laws and effective gun violence
prevention policies, including filing amicus briefs, often along with law enforcement and other
groups, as well as this case; (iii) challenging laws and policies that exacerbate gun violence; (iv)
providing direct legal advocacy on behalf of victims and communities affected by gun violence.
For over 40 years, Brady has worked to prevent gun violence, including working with
members spread across all fifty states and the District of Columbia, and established membership
groups in Austin, TX and Houston, TX. (Scharff Dec. ¶ 2). There is a serious conflict between
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Giffords has expended substantial efforts and diverted significant resources to the issue of
preventing the spread of 3-D printed firearms since learning of the Settlement Agreement,
including: i) advising state and local law enforcement agencies about the impending publication
of the CAD files at issue so that they can take appropriate steps to counter and reduce the risk such
files pose and can prepare investigative and enforcement strategies in the event that weapons
produced using the CAD files at issue are used in, or recovered as evidence from, crimes within
their jurisdictions; ii) communicating with print, digital, and broadcast journalists to further
educate the public, including explaining a) the existing statutory regimes concerning downloadable
firearms, b) prior and recent developments in this matter, including in particular the settlement, c)
the public safety and national security dangers that will follow from the publication of the CAD
files at issue in this matter, and d) what steps can be taken to mitigate the dangers; iii) focusing on
a public education initiative that provides information about the developments in this matter, the
threat posed by downloadable firearms, and what steps members of the public can take to make
their voice heard and mobilize on this issue; iv) educating federal, state, and local lawmakers about
the consequences of the settlement in this matter and the threat that 3D-printed firearms pose to
public safety and national security; and v) working with lawmakers to craft appropriate policy
responses to these threats at the federal and state level. (Damaskos Dec. ¶¶ 6-9).
The legal, government affairs, and communications departments in Giffords and its sister
organization, Giffords Law Center to Prevent Gun Violence, have been redirected from other
projects to address the pending publication of CAD files that would enable the manufacture of
firearms using 3D-printing machines. Were it not for the defendants’ reversal of course in this
litigation and the unprecedented threat to public safety and national security that will result if the
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settlement takes effect, these resources would have been devoted to other gun violence prevention
In the event that the settlement agreement were to go into effect and 3-D gun printing
technology were made widely available, Giffords would be forced to continue to divert extensive
resources to address the threats posed by widely available 3-D printed guns, including the activities
they have been engaged in since learning of the settlement. (Damaskos Dec. ¶ 10).
C. Defense Distributed Intends to Post Numerous and Significant New Files on the Internet.
Defense Distributed and Cody Wilson have confirmed through public announcements,
media statements, and this litigation that they plan to release technical information that is not yet
available on the Internet and that will enable the manufacture of firearms. The Defense Distributed
website announces that August 1, 2018, the day DEFCAD is relaunched, is the day that “[t]he age
of the downloadable gun formally begins.” See https://defdist.org/ (last visited July 26, 2018).
A July 10, 2018 news article reports that the relaunched Defense Distributed website will
include “a repository of firearm blueprints they’ve been privately creating and collecting, from the
original one-shot 3-D-printable pistol he fired in 2013 to AR-15 frames and more exotic DIY semi-
automatic weapons.” Andy Greenberg, A Landmark Legal Shift Opens Pandora’s Box for DIY
opens-pandoras-box-for-diy-guns/. The article quotes Wilson to say that Defense Distributed has
been creating a vast library of new design files: “We’re doing the encyclopedic work of collecting
this data and putting it into the commons[.] [ ] What’s about to happen is a Cambrian explosion of
the digital content related to firearms.” Id. One report relates that “[t]hroughout the litigation,
[Wilson] developed a trove of other 3-D printable weapon blueprints, including Assembly AR-15s
and AR-10s.” Deanna Paul, Meet the man who might have brought on the age of ‘downloadable
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nation/wp/2018/07/18/meet-the-man-who-wants-to-bring-on-the-age-of-downloadable-guns-and-
recognizes that the yet-to-be-released technical information is markedly advanced compared to the
files released in 2013 because, although those older files may still be available on the dark web,
those files may be piecemeal and not always reliable. Tess Owen, Get Ready for the New Era of
3D-Printed Guns Starting August 1, Vice News (July 18, 2018), available at
https://news.vice.com/en_us/article/ev8xjn/get-ready-for-the-new-era-of-3d-printed-guns-
starting-august-1.
The plaintiffs’ second amended complaint directly claims that new files have been created
that have yet to become publicly available: “Defense Distributed has and will continue to create
and possess other files that contain technical information, to include design drawings, rendered
images, written manufacturing instructions, and other technical information that Defense
Distributed intends to post to public forums on the Internet.” Second Amended Complaint, ¶ 44,
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a) on July 27, 2018, and was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(b)(1).
/s/Domingo M. LLagostera
Domingo M. LLagostera
Attorney