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Trump Judge Tries to Permit Immediate Appeal Concerning Efforts to Stop Distribution of Programs to Make Firearms with 3D Printers: Confirmed Judges Confirmed Fears

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Trump Judge Tries to Permit Immediate Appeal Concerning Efforts to Stop Distribution of Programs to Make Firearms with 3D Printers: Confirmed Judges Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Third Circuit judge Peter Phipps argued in dissent that pro-gun groups should be able to appeal orders that effectively stayed consideration of a preliminary injunction motion and other proceedings in the New Jersey Attorney General’s efforts to prevent broad distribution of computer programs that can be used to make firearms with a 3D printer, in light of pending proceedings in another similar case. The majority rejected those arguments and dismissed the appeal in its August 2020 decision is Defense Distributed v. Attorney General.

The attorneys general of several states, including Texas and New Jersey, have begun enforcement actions to prevent Defense Distributed (DD), which publishes gun production computer files on the internet, from publishing such files that can be used to “make guns from a 3D printer.”  Defense Distributed and other “firearm interest organizations” and individuals filed suit, initially in Texas, challenging these actions as violating their rights under the Second Amendment and other constitutional provisions. The lawsuit concerned conduct not only by the Texas attorney general, but also by the attorney generals of New Jersey and other states. In early 2019, the Texas court denied DD’s request for a preliminary injunction and dismissed the case.

Less than a week later, DD and others filed a similar suit in New Jersey, and sought a preliminary injunction against that state’s attorney general. At the same time, DD sought to continue the Texas litigation by moving to reconsider and amend the court’s judgment. Because the similar Texas action was continuing, which also was filed against him, the New Jersey Attorney General sought a stay of the recently filed lawsuit in his state.

The New Jersey court granted the attorney general’s motion, explaining that “it’s just a rule of the courts that you don’t proceed in two courts at the same time, same parties, same issue.” In Texas, meanwhile, the district court denied DD’s motion and DD appealed. The New Jersey court ordered a stay of the proceedings there until the related  Texas case was resolved with no viable appeals, and dismissed the preliminary injunction motion without prejudice, stating that it could be refiled once the stay was lifted. DD appealed, claiming that the district court “erred” in staying the case and seeking an order directing the court to decide its preliminary injunction motion immediately..

The Third Circuit majority dismissed the appeal for lack of jurisdiction. The majority explained that generally only final orders can be appealed, with the limited exception of some orders, such as those that actually deny injunction requests. The district court’s orders could be appealed under the law, they went on, only if they actually deny or  have the “practical effect of refusing an injunction”  and have “serious, perhaps irreparable consequences” and can be effectively challenged “only by immediate appeal.”

As the Third Circuit had previously ruled, the majority continued, an order staying a lawsuit “does not fall under” the exception even though it “postpones” an action seeking injunctive relief, particularly where a similar suit is pending elsewhere. Although the district court had technically dismissed the request for a preliminary injunction, the majority noted, a “fair reading” of the record made clear that it was simply “removing from its docket a motion that would be acted on soon,” and it made clear that its order was the equivalent of a stay since it was without prejudice and DD could re-file it once the stay was lifted.

Trump judge Phipps dissented, arguing that DD and the other “firearm interest groups” should be able to appeal the district court orders and get an immediate ruling on their request for “emergency relief”, even though similar issues were pending in the Texas case. He maintained that the New Jersey district court had “dismissed” the preliminary injunction request, and that the qualifiers about refiling were “immaterial.” He also asserted that two previous Third Circuit cases had recognized that a stay like the one in this case had the “practical effect” of refusing an injunction and provided the basis for an appeal.

The majority explained, however, that the two cases on which Phipps and DD relied were clearly distinguishable. In both, the majority pointed out, the lower court had “effectively denied” the relief that was being sought, including one situation where there was undisputed irreparable harm if the court did not act in a “now-or-never” situation. That was not the case here, the majority noted, since the relief was being pursued immediately in Texas and DD can still achieve the relief it seeks later in New Jersey, if needed and proven justified. And despite the claims of DD and the dissent, the majority explained that Third Circuit precedent requires that the court “look beyond the text” of the so-called “dismissal” order, and that orders that do not “substantively deny” a preliminary injunction request, as in this case, are not immediately appealable.

If it had been up to Phipps, however, DD and other “firearms interest” groups could have immediately pushed their claims to be able to distribute programs to print guns on 3D printers and forced the New Jersey Attorney General to defend against their claims in multiple courts at the same time.


Confirmed Judges Confirmed Fears, gun violence prevention, Peter Phipps, Third Circuit Court of Appeals