2018 07 27 Supplemental Motion

2018 07 27 Supplemental Motion
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  IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION DEFENSE DISTRIBUTED ET AL., § § Plaintiff, § § C.A. NO. 1:15-CV-00372-RP v. § JURY DEMANDED § UNITED STATES DEPT. OF STATE, ET AL, § § Defendants. § PROPOSED INTERVENORS’ SUPPLEMENTAL BRIEFING IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE Proposed Intervenors The Brady Campaign to Prevent Gun Violence (“Brady” or “Brady Campaign”), Everytown for Gun Safety Action Fund, Inc. (“Everytown”) and Giffords, (collectively “Proposed Intervenors”) filed a Motion for Leave to Intervene in this action, Motion for Temporary Restraining Order and Preliminary Injunction, and Motion for Emergency Hearing on Temporary Restraining Order on July 25, 2018. (ECF Nos. 96, 96-1, 97, and 98). This Court held a telephonic hearing on the motions on July 26, 2018 at 2:30 p.m. (ECF No. 101). At the hearing, the Court determined that the parties’ interests would be best served by holding a hearing on July 27, 2018, giving the parties additional time to prepare arguments and submit briefings, if necessary. Proposed Intervenors respectfully submit this Supplemental Briefing in support of their Motion for Leave to Intervene. Specifically, Proposed Intervenors would draw the Court’s attention to 1) the timeliness of their Motion for Leave to Intervene, 2) the significant efforts Proposed Intervenors have expended since learning of the Settlement Agreement, and 3) the fact that Defense Distributed intends to post on the Internet numerous and significant files that are not yet available to the public. Case 1:15-cv-00372-RP Document 103 Filed 07/27/18 Page 1 of 9  2 A.   Timeliness of Proposed Intervenors’ Motion for Leave to Intervene The Fifth Circuit “reject[s] the notion that the date on which the would-be intervenor  became aware of the pendency of the action should be used to determine whether it acted  promptly.” Sierra Club v. Espy , 18 F.3d 1202, 1206 (5th Cir. 1994). In fact, the Fifth Circuit urges lower courts to “discourage premature intervention that wastes judicial resources.”  Id. (citing Stallworth v. Monsanto Co. , 558 F.2d 257, 264 (5th Cir. 1977). Instead, courts should gauge a  potential intervenor’s timeliness by “the speed with which the would-be intervenor acted when it became aware that its interest would no longer be protected by the srcinal parties .”  Id.  (emphasis added). The Government Defendants were protecting Proposed Intervenors’ interest up until the settlement. See e.g., ECF No. 92 (Motion to Dismiss Plaintiff’s Complaint, filed on April 6, 2018  by the DDTC and the State Department). On April 30, 2018, Defense Distributed filed a motion to stay this action, due to a tentative settlement agreement reached by the parties. (ECF No. 93). This half-page motion merely mentioned the existence of a tentative  settlement; it did not mention the substance of said tentative settlement agreement.  Id. On June 28, 2018, the parties in this action filed a joint status report. (ECF No. 95). This half-page report simply stated that the relevant governmental officials had approved the parties’ settlement agreement.  Id. Again, it did not mention the substance of the settlement agreement. On July 10, 2018, Everytown and Giffords first learned of the fact of the settlement. (Declaration of Nicholas Suplina, ¶ 4; Declaration of Alison Damaskos ¶ 3). Giffords learned of the terms of the Settlement Agreement on July 17, 2018. (Damaskos Dec. ¶ 3). Everytown received a copy of the Settlement Agreement on or about July 19, 2018. (Suplina Dec. ¶ 6). Case 1:15-cv-00372-RP Document 103 Filed 07/27/18 Page 2 of 9  3 On July 12, 2018, the Brady Campaign first saw excerpts of what was purported to be the Settlement Agreement. (Declaration of Joshua Scharff ¶ 3). The Brady Campaign only learned of the agreement’s existence a few days prior to this date.  Id.  Each Proposed Intervenor sought intervention within 15 days after learning of the fact  of the Settlement Agreement. Everytown and Giffords sought leave to intervene roughly one week after learning of the substance  of the Settlement Agreement. It is unquestionable that Proposed Intervenors acted promptly in seeking leave to intervene, upon learning that the Government was no longer protecting their interests. B.   Proposed Intervenors have expended significant efforts counteracting the parties’ conduct. An organization can demonstrate standing in its own right if it can show 1) it has diverted significant resources to counteract the defendant’s conduct and, 2) there is a serious conflict  between the organization’s mission and the conflict at issue.  Am. Civ. Rights Union v. Martinez- Rivera , 166 F. Supp. 3d 779, 788 (W.D. Tex. 2015). Proposed Intervenors have diverted significant resources to counteract the Settlement Agreement and the proliferation of 3-D printed guns. i.   Everytown has expended significant resources and is committed to counteracting gun violence. Everytown has i) researched 3-D gun printing technology, feasibility and availability; ii) researched the potential implications of making 3-D gun printing technology widely available; iii) evaluated proposed legislation to address these issues; iv) created an information sheet to educate the public on the development and implication of this case and the spread of 3-D firearms printing technology; v) drafted emails, letters, and texts to supporters, members, legislators, and other allies concerning these issues; vi) created and deployed social media content concerning these issues; and vii) evaluated and implemented litigation strategies to prevent the above. (Suplina Dec. ¶ 7). Case 1:15-cv-00372-RP Document 103 Filed 07/27/18 Page 3 of 9  4 Were it not for the efforts expended to counteract the Settlement Agreement, Everytown would have devoted its resources to other gun violence prevention programs. Additionally, if the Settlement Agreement were to go into effect, Everytown would be forced to continue this expenditure of resources to counteract the consequences of the Settlement Agreement, including  by i) studying how to make gun safety laws effective against 3-D weapons, ii) working to pass legislation to prohibit the manufacture of 3-D weapons, and iii) working with victims who will be impacted by the loss of loved ones to 3-D weapons. (Suplina Dec. ¶¶ 7, 8). Everytown works in all 50 states and in Congress to support the passage and enforcement of gun safety laws that, among other things, help keep guns out of the hands of prohibited persons and other individuals with dangerous histories and help law enforcement apprehend and prosecute those who violate U.S. and state gun laws. (Suplina Dec. ¶ 3). There is a serious conflict between Everytown’s mission and implementation of the Settlement Agreement. ii.   Efforts expended by Brady to counteract the parties’ conduct. Before learning of the Settlement Agreement, Brady expended substantial efforts and diverted resources to (i) researching, drafting, and submitting an amicus  brief in this litigation; and (ii) researching, drafting, and submitting Comments to the Department of State Proposed Rule to Amend the International Traffic in Arms Regulations: U.S. Munitions List Categories I, II, and III and the Department of Commerce Proposed Rule Regarding Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List. (Scharff Dec. ¶ 6). Since learning of the Settlement Agreement, Brady has expended substantial efforts and diverted significant resources to the issue of preventing the spread of 3-D printed firearms, including: (i) drafting and submitting two FOIA requests regarding the Settlement Agreement and Case 1:15-cv-00372-RP Document 103 Filed 07/27/18 Page 4 of 9
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