Defense Distributed Declaration

In the ongoing litigation between Defense Distributed and state attorneys general over the distribution of three-dimensional models of firearms and components thereof over the Internet (which has been approved by all federal regulatory agencies), I was asked to submit an affidavit in support of the Defense Distributed case.  I have previously described this case here in my post “Code is Speech”.

Here is what I drafted which, after consultation with others whose efforts are much appreciated but will remain unnamed, will be submitted into the public record.  This is exactly what was submitted, less my signature: why make it easy for identity thieves?  This was submitted, as is done, in gnarly monospaced text with no mark-up.  If it shows up in your browser with awkward line breaks, try making the browser window wider and it should get better.   If you’re on a tablet or mobile phone, try it when you get back to the desktop.

The opening and closing paragraphs are as prescribed in 28 U.S.C. § 1746 for an “Unsworn declaration under penalty of perjury” by a non-U.S. person.  This is also called a “self-authenticating affidavit”.

This may seem lukewarm to those accustomed to my usual firebrand rhetoric.  In this declaration, I only wanted to state things which I knew or believed based upon my own personal experience.  Consequently, I eschewed discussing the state of the art in additive manufacturing (I have never actually seen nor used an additive manufacturing machine) or the limitations of present-day machines (all of that may, and probably will, change in a few years).

Attorneys for Defense Distributed expect to lose in the original district court litigation and the Ninth Circuit, but the purpose of this declaration is to be used in higher court appeals where there is a less ideological and more fact-based scrutiny of cases.

Although I really had better things to do this week, I was glad to take the time to support the Defense Distributed case.  Even if you don’t care about guns, the attorneys’ general position in this case argues that computer-mediated speech: the transmission of files from computer to computer, is not speech protected by the First Amendment.  This is arguably the greatest assault on free speech since the adoption of that amendment.

I am privileged to have the opportunity to oppose it.

(This declaration is a public document which will become part of the record of the trial and eventual appeals.  I am disclosing nothing here which will not be available to those following the litigation.)

                DECLARATION OF JOHN WALKER

I, John Walker, pursuant to 28 U.S.C. § 1746 hereby declare and
say as follows:

    1.  I was a co-founder of Autodesk, Inc. (ADSK:NASDAQ),
        developer of the AutoCAD® computer-aided design
        software.  I was president, chairman, and chief
        executive officer from the incorporation of the company
        in April 1982 until November 1986, more than a year
        after its initial public stock offering in June 1985. I
        continued to serve as chairman of the board of directors
        until April 1988, after which I concentrated on software
        development.

    2.  Autodesk is the developer of the AutoCAD® software, one
        of the most widely-used computer-aided design and
        drafting software packages in the world.  AutoCAD allows
        creation of two- and three-dimensional models of designs
        and, with third-party products, their analysis and
        fabrication.

    3.  During the start-up phase of Autodesk, I was one of the
        three principal software developers of AutoCAD and wrote
        around one third of the source code of the initial
        release of the program.

    4.  Subsequently, I contributed to the development of
        three-dimensional extensions of the original AutoCAD
        drafting system, was lead developer on AutoShade[tm],
        which produced realistic renderings of three-dimensional
        models, and developed the prototype of integration of
        constructive solid geometry into AutoCAD, which was
        subsequently marketed as the AutoCAD Advanced Modeling
        Extension (AME).

    5.  I retired from Autodesk in 1994 and since have had no
        connection with the company other than as a shareholder
        with less than 5% ownership of the company's common
        stock.

    Design Versus Fabrication

    6.  From my experience at Autodesk, I became aware of the
        distinction between the design of an object and the
        fabrication of that object from the design.  For
        example, the patent drawings and written description in
        firearms patents provide sufficient information "as to
        enable any person skilled in the art to which it
        pertains, or with which it is most nearly connected, to
        make and use the same, and shall set forth the best mode
        contemplated by the inventor or joint inventor of
        carrying out the invention" [35 U.S.C. § 112 (a)].  But
        this is in no way a mechanical process.  One must
        interpret the design, choose materials suitable for each
        component, and then decide which manufacturing process
        (milling, stamping, turning, casting, etc.) is best to
        produce it, including steps such as heat-treating and
        the application of coatings.  This process is called
        "production planning", and it is a human skill that is
        required to turn a design, published in a patent
        description or elsewhere, into a physical realisation of
        the object described by that design.

    7.  A three-dimensional model of an object specifies its
        geometry but does not specify the materials from which
        it is fabricated, how the fabrication is done, or any
        special steps required (for example, annealing or other
        heat treating, coatings, etc.) before the component is
        assembled into the design.

    8.  Three-dimensional models of physical objects have many
        other applications than computer-aided manufacturing.
        Three-dimensional models are built to permit analysis of
        designs including structural strength and heat flow via
        the finite element method.  Models permit rendering of
        realistic graphic images for product visualisation,
        illustration, and the production of training and service
        documentation.  Models can be used in simulations to
        study the properties and operation of designs prior to
        physically manufacturing them. Models for finite element
        analysis have been built since the 1960s, decades before
        the first additive manufacturing machines were
        demonstrated in the 1980s.

    9.  Some three-dimensional models contain information which
        goes well beyond a geometric description of an object
        for manufacturing.  For example, it is common to produce
        "parametric" models which describe a family of objects
        which can be generated by varying a set of inputs
        ("parameters").  For example, a three-dimensional model
        of a shoe could be parameterised to generate left and
        right shoes of various sizes and widths, with
        information within the model automatically adjusting the
        dimensions of the components of the shoe accordingly.
        The model is thus not the rote expression of a
        particular manufactured object but rather a description
        of a potentially unlimited number of objects where the
        intent of the human designer, in setting the parameters,
        determines the precise geometry of an object built from
        the model.

   10.  A three-dimensional model often expresses relationships
        among components of the model which facilitate analysis
        and parametric design.  Such a model can be thought of
        like a spreadsheet, in which the value of cells are
        determined by their mathematical relationships to other
        cells, as opposed to a static table of numbers printed
        on paper.

    Additive Manufacturing ("3D Printing")

   11.  Additive manufacturing (often called, confusingly, "3D
        [for three-dimensional] printing") is a technology by
        which objects are built to the specifications of a
        three-dimensional computer model by a device which
        fabricates the object by adding material according to
        the design.  Most existing additive manufacturing
        devices can only use a single material in a production
        run, which limits the complexity of objects they can
        fabricate.

   12.  Additive manufacturing, thus, builds up a part by adding
        material, while subtractive manufacturing (for example,
        milling, turning, and drilling) starts with a block of
        solid material and cuts away until the desired part is
        left.  Many machine shops have tools of both kinds, and
        these tools may be computer controlled.

   13.  Additive manufacturing is an alternative to traditional
        kinds of manufacturing such as milling, turning, and
        cutting.  With few exceptions, any object which can be
        produced by additive manufacturing can be produced, from
        paper drawings or their electronic equivalent, with
        machine tools that date from the 19th century.  Additive
        manufacturing is simply another machine tool, and the
        choice of whether to use it or other tools is a matter
        of economics and the properties of the part being
        manufactured.

   14.  Over time, machine tools have become easier to use.  The
        introduction of computer numerical control (CNC) machine
        tools has dramatically reduced the manual labour
        required to manufacture parts from a design.  The
        computer-aided design industry, of which Autodesk is a
        part, has, over the last half-century, reduced the cost
        of going from concept to manufactured part, increasing
        the productivity and competitiveness of firms which
        adopt it and decreasing the cost of products they make.
        Additive manufacturing is one of a variety of CNC
        machine tools in use today.

   15.  It is in no sense true that additive manufacturing
        allows the production of functional objects such as
        firearms from design files without human intervention.
        Just as a human trying to fabricate a firearm from its
        description in a patent filing (available in electronic
        form, like the additive manufacturing model), one must
        choose the proper material, its treatment, and how it is
        assembled into the completed product.  Thus, an additive
        manufacturing file describing the geometry of a
        component of a firearm is no more an actual firearm than
        a patent drawing of a firearm (published worldwide in
        electronic form by the U.S. Patent and Trademark Office)
        is a firearm.

    Computer Code and Speech

   16.  Computer programs and data files are indistinguishable
        from speech.  A computer file, including a
        three-dimensional model for additive manufacturing, can
        be expressed as text which one can print in a newspaper
        or pamphlet, declaim from a soapbox, or distribute via
        other media.  It may be boring to those unacquainted
        with its idioms, but it is speech nonetheless.  There is
        no basis on which to claim that computer code is not
        subject to the same protections as verbal speech or
        printed material.

   17.  For example, the following is the definition of a unit
        cube in the STL language used to to express models for
        many additive manufacturing devices.

            solid cube_corner
              facet normal 0.0 -1.0 0.0
                outer loop
                  vertex 0.0 0.0 0.0
                  vertex 1.0 0.0 0.0
                  vertex 0.0 0.0 1.0
                endloop
              endfacet
            endsolid

        This text can be written, read, and understood by a
        human familiar with the technology as well as by a
        computer.  It is entirely equivalent to a description of
        a unit cube written in English or another human
        language.  When read by a computer, it can be used for
        structural analysis, image rendering, simulation, and
        other applications as well as additive manufacturing.
        The fact that the STL language can be read by a computer
        in no way changes the fact that it is text, and thus,
        speech.

   18.  As an additional example, the following is an AutoCAD
        DXF[tm] file describing a two-dimensional line between
        the points (0, 0) and (1, 1), placed on layer 0 of a
        model.

            0
            SECTION
              2
            ENTITIES
              0
            LINE
              8
            0
             10
            0.0
            20
            0.0
            11
            1.0
            21
            1.0
              0
            ENDSEC
              0
            EOF

        Again, while perhaps not as easy to read as the STL file
        until a human has learned the structure of the file,
        this is clearly text, and thus speech.

   19.  It is common in computer programming and computer-aided
        design to consider computer code and data files written
        in textual form as simultaneously communicating to
        humans and computers.  Donald E. Knuth, professor
        emeritus of computer science at Stanford University and
        author of "The Art of Computer Programming", advised
        programmers:
            "Instead of imagining that our main task is to
            instruct a computer what to do, let us concentrate
            rather on explaining to human beings what we want a
            computer to do."[Knuth 1992]
        A design file, such as those illustrated above in
        paragraphs 17 and 18 is, similarly, a description of a
        design to a human as well as to a computer.  If it is a
        description of a physical object, a human machinist
        could use it to manufacture the object just as the
        object could be fabricated from the verbal description
        and drawings in a patent.

   20.  Computer code has long been considered text
        indistinguishable from any other form of speech in
        written form.  Many books, consisting in substantial
        part of computer code, have been published and are
        treated for the purpose of copyright and other
        intellectual property law like any other literary work.
        For example the "Numerical Recipes"[Press] series of
        books presents computer code in a variety of programming
        languages which implements fundamental algorithms for
        numerical computation.

    Conclusions

   21.  There is a clear distinction between the design of an
        artefact, whether expressed in paper drawings, a written
        description, or a digital geometric model, and an object
        manufactured from that design.

   22.  Manufacturing an artefact from a design, however
        expressed, is a process involving human judgement in
        selecting materials and the tools used to fabricate
        parts from it.

   23.  Additive manufacturing ("3D printing") is one of a
        variety of tools which can be used to fabricate parts.
        It is in no way qualitatively different from alternative
        tools such as milling machines, lathes, drills, saws,
        etc., all of which can be computer controlled.

   24.  A digital geometric model of an object is one form of
        description which can guide its fabrication.  As such,
        it is entirely equivalent to, for example, a dimensioned
        drawing (blueprint) from which a machinist works.

   25.  Digital geometric models of objects can be expressed
        as text which can be printed on paper or read aloud
        as well as stored and transmitted electronically.
        Thus they are speech.

    References
        [Knuth 1992]   Knuth, Donald E.  Literate Programming.
                       Stanford, CA: Center for the Study of
                       Language and Information, 1992.
                       ISBN: 978-0-937073-80-3.

        [Press]        Press, William H. et al.  Numerical Recipes.
                       Cambridge (UK): Cambridge University Press,
                       (various dates).
                       Programming language editions:
                           C++     978-0-521-88068-8
                           C       978-0-521-43108-8
                           Fortran 978-0-521-43064-7
                           Pascal  978-0-521-37516-0

I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.

Executed on November 22, 2018

                                            (Signature)
                                 _______________________________
                                           John Walker
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Author: John Walker

Founder of Ratburger.org, Autodesk, Inc., and Marinchip Systems. Author of The Hacker's Diet. Creator of www.fourmilab.ch.

8 thoughts on “Defense Distributed Declaration”

  1. Here’s my question: If I have all of the tools and materials to make a traditional firearm in my workshop, what is the difference other than time?

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  2. Robert A. McReynolds:
    Here’s my question: If I have all of the tools and materials to make a traditional firearm in my workshop, what is the difference other than time?

    Exactly!

    The difference is, this is too easy.

    It all does not matter. Drones are the next big wave

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  3. More readable:

     

    DECLARATION OF JOHN WALKER

    I, John Walker, pursuant to 28 U.S.C. § 1746 hereby declare and say as follows:

                1.  I was a co-founder of Autodesk, Inc. (ADSK:NASDAQ), developer of the AutoCAD® computer-aided design software.  I was president, chairman, and chief executive officer from the incorporation of the company in April 1982 until November 1986, more than a year after its initial public stock offering in June 1985. I continued to serve as chairman of the board of directors until April 1988, after which I concentrated on software development.

                2.  Autodesk is the developer of the AutoCAD® software, one of the most widely-used computer-aided design and drafting software packages in the world.  AutoCAD allows creation of two- and three-dimensional models of designs and, with third-party products, their analysis and fabrication.

                3.  During the start-up phase of Autodesk, I was one of the three principal software developers of AutoCAD and wrote around one third of the source code of the initial release of the program.

                4.  Subsequently, I contributed to the development of three-dimensional extensions of the original AutoCAD drafting system, was lead developer on AutoShade[tm], which produced realistic renderings of three-dimensional models, and developed the prototype of integration of constructive solid geometry into AutoCAD, which was subsequently marketed as the AutoCAD Advanced Modeling Extension (AME).

                5.  I retired from Autodesk in 1994 and since have had no connection with the company other than as a shareholder with less than 5% ownership of the company’s common stock.

     

                Design Versus Fabrication

                6.  From my experience at Autodesk, I became aware of the distinction between the design of an object and the fabrication of that object from the design.  For example, the patent drawings and written description in firearms patents provide sufficient information “as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention” [35 U.S.C. § 112 (a)].  But this is in no way a mechanical process.  One must interpret the design, choose materials suitable for each component, and then decide which manufacturing process (milling, stamping, turning, casting, etc.) is best to produce it, including steps such as heat-treating and the application of coatings.  This process is called “production planning”, and it is a human skill that is required to turn a design, published in a patent description or elsewhere, into a physical realisation of the object described by that design.

                7.  A three-dimensional model of an object specifies its geometry but does not specify the materials from which it is fabricated, how the fabrication is done, or any special steps required (for example, annealing or other heat treating, coatings, etc.) before the component is assembled into the design.

                8.  Three-dimensional models of physical objects have many other applications than computer-aided manufacturing.  Three-dimensional models are built to permit analysis of designs including structural strength and heat flow via the finite element method.  Models permit rendering of realistic graphic images for product visualisation, illustration, and the production of training and service documentation.  Models can be used in simulations to study the properties and operation of designs prior to physically manufacturing them. Models for finite element analysis have been built since the 1960s, decades before the first additive manufacturing machines were demonstrated in the 1980s.

                9.  Some three-dimensional models contain information which goes well beyond a geometric description of an object for manufacturing.  For example, it is common to produce “parametric” models which describe a family of objects which can be generated by varying a set of inputs (“parameters”).  For example, a three-dimensional model of a shoe could be parameterised to generate left and right shoes of various sizes and widths, with information within the model automatically adjusting the dimensions of the components of the shoe accordingly.  The model is thus not the rote expression of a particular manufactured object but rather a description of a potentially unlimited number of objects where the intent of the human designer, in setting the parameters, determines the precise geometry of an object built from the model.

                10.  A three-dimensional model often expresses relationships among components of the model which facilitate analysis and parametric design.  Such a model can be thought of like a spreadsheet, in which the value of cells are determined by their mathematical relationships to other cells, as opposed to a static table of numbers printed on paper.

     

                Additive Manufacturing (“3D Printing”)

                11.  Additive manufacturing (often called, confusingly, “3D [for three-dimensional] printing”) is a technology by which objects are built to the specifications of a three-dimensional computer model by a device which fabricates the object by adding material according to the design.  Most existing additive manufacturing devices can only use a single material in a production run, which limits the complexity of objects they can fabricate.

                12.  Additive manufacturing, thus, builds up a part by adding material, while subtractive manufacturing (for example, milling, turning, and drilling) starts with a block of solid material and cuts away until the desired part is left.  Many machine shops have tools of both kinds, and these tools may be computer controlled.

                13.  Additive manufacturing is an alternative to traditional kinds of manufacturing such as milling, turning, and cutting.  With few exceptions, any object which can be produced by additive manufacturing can be produced, from paper drawings or their electronic equivalent, with machine tools that date from the 19th century.  Additive manufacturing is simply another machine tool, and the choice of whether to use it or other tools is a matter of economics and the properties of the part being manufactured.

                14.  Over time, machine tools have become easier to use.  The introduction of computer numerical control (CNC) machine tools has dramatically reduced the manual labour required to manufacture parts from a design.  The computer-aided design industry, of which Autodesk is a part, has, over the last half-century, reduced the cost of going from concept to manufactured part, increasing the productivity and competitiveness of firms which adopt it and decreasing the cost of products they make.  Additive manufacturing is one of a variety of CNC machine tools in use today.

                15.  It is in no sense true that additive manufacturing allows the production of functional objects such as firearms from design files without human intervention.  Just as a human trying to fabricate a firearm from its description in a patent filing (available in electronic form, like the additive manufacturing model), one must choose the proper material, its treatment, and how it is assembled into the completed product.  Thus, an additive manufacturing file describing the geometry of a component of a firearm is no more an actual firearm than a patent drawing of a firearm (published worldwide in electronic form by the U.S. Patent and Trademark Office) is a firearm.

     

                Computer Code and Speech

                16.  Computer programs and data files are indistinguishable from speech.  A computer file, including a three-dimensional model for additive manufacturing, can be expressed as text which one can print in a newspaper or pamphlet, declaim from a soapbox, or distribute via other media.  It may be boring to those unacquainted with its idioms, but it is speech nonetheless.  There is no basis on which to claim that computer code is not subject to the same protections as verbal speech or printed material.

                17.  For example, the following is the definition of a unit cube in the STL language used to to express models for many additive manufacturing devices.

    solid cube_corner
               facet normal 0.0 -1.0 0.0
                          outer loop
                                     vertex 0.0 0.0 0.0
                                     vertex 1.0 0.0 0.0
                                     vertex 0.0 0.0 1.0
                          endloop
               endfacet
    endsolid

                 This text can be written, read, and understood by a human familiar with the technology as well as by a computer.  It is entirely equivalent to a description of a unit cube written in English or another human language.  When read by a computer, it can be used for structural analysis, image rendering, simulation, and other applications as well as additive manufacturing.  The fact that the STL language can be read by a computer in no way changes the fact that it is text, and thus, speech.

                18.  As an additional example, the following is an AutoCAD DXF[tm] file describing a two-dimensional line between the points (0, 0) and (1, 1), placed on layer 0 of a model.

    0
    SECTION
               2
    ENTITIES
               0
    LINE
               8
    0
    10
    0.0
    20
    0.0
    11
    1.0
    21
    1.0
               0
    ENDSEC
               0
    EOF

                 Again, while perhaps not as easy to read as the STL file until a human has learned the structure of the file, this is clearly text, and thus speech.

                19.  It is common in computer programming and computer-aided design to consider computer code and data files written in textual form as simultaneously communicating to humans and computers.  Donald E. Knuth, professor emeritus of computer science at Stanford University and author of “The Art of Computer Programming”, advised programmers: “Instead of imagining that our main task is to instruct a computer what to do, let us concentrate rather on explaining to human beings what we want a computer to do.”[Knuth 1992] A design file, such as those illustrated above in paragraphs 17 and 18 is, similarly, a description of a design to a human as well as to a computer.  If it is a description of a physical object, a human machinist could use it to manufacture the object just as the object could be fabricated from the verbal description and drawings in a patent.

                20.  Computer code has long been considered text indistinguishable from any other form of speech in written form.  Many books, consisting in substantial part of computer code, have been published and are treated for the purpose of copyright and other intellectual property law like any other literary work.  For example the “Numerical Recipes”[Press] series of books presents computer code in a variety of programming languages which implements fundamental algorithms for numerical computation.

     

                Conclusions

                21.  There is a clear distinction between the design of an artefact, whether expressed in paper drawings, a written description, or a digital geometric model, and an object manufactured from that design.

                22.  Manufacturing an artefact from a design, however expressed, is a process involving human judgement in selecting materials and the tools used to fabricate parts from it.

                23.  Additive manufacturing (“3D printing”) is one of a variety of tools which can be used to fabricate parts.  It is in no way qualitatively different from alternative tools such as milling machines, lathes, drills, saws, etc., all of which can be computer controlled.

                24.  A digital geometric model of an object is one form of description which can guide its fabrication.  As such, it is entirely equivalent to, for example, a dimensioned drawing (blueprint) from which a machinist works.

                25.  Digital geometric models of objects can be expressed as text which can be printed on paper or read aloud as well as stored and transmitted electronically.  Thus they are speech.

                References

               [Knuth 1992] Knuth, Donald E.  Literate Programming.  Stanford, CA: Center for the Study of Language and Information, 1992.  ISBN: 978-0-937073-80-3.

                 [Press] Press, William H. et al.  Numerical Recipes.  Cambridge (UK): Cambridge University Press, (various dates).  Programming language editions: C++ 978-0-521-88068-8 C 978-0-521-43108-8 Fortran 978-0-521-43064-7 Pascal 978-0-521-37516-0

    I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

     

    Executed on November 22, 2018

     

                 (Signature) _______________________________ John Walker

     

     

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  4. John Walker, congratulations.   Your explanation is so straightforward and simple, even a California judge can understand it.

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  5. Thank you, John.  Very informative.  I am proud to be able to say that I know you.

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  6. About as simple and straightforward as any lover of the 1st amendment could wish.  I concur in your prediction that it will be useful later, while the lower courts will ignore it.

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  7. Robert A. McReynolds:
    Here’s my question: If I have all of the tools and materials to make a traditional firearm in my workshop, what is the difference other than time?

    It’s not even clear the difference is time.  With a reasonably-equipped metalworking machine shop (mill, lathe, drill press, etc.) you can make a perfectly functional firearm which is much better than anything that can be made with additive manufacturing machines affordable by individuals and small companies.  (Machines that use, for example, electron beam sintering of metal which are used in the aerospace industry cost millions and require costly infrastructure and materials.)

    The fact is that a 3D printed gun or even an AR receiver is, if not a one-shot-wonder, at most around a six-shot-wonder if made with the technology currently available on the mass market (if you can consider the hobbyist and small business prototype customer base a “mass market”: it’s like personal computing before the Apple II and IBM PC).  You can (completely legally) make a functional weapon from metal in a conventional machine shop which would fit in a typical garage or basement with affordable used manual machine tools that are readily available.  Need plans?  Here you go [PDF], courtesy of the U.S. federal government.  Here is a drug cartel which was making AR-15s from bare metal with a CNC machine (I don’t know if they used AutoCAD).

    Finally, once you’ve made your one-off gun, you have something which costs (if you value your time, the materials, and amortise the cost of the machine tools) much more than a mass-produced weapon that has come far down the learning curve and been fully debugged, including working in extreme environments and conditions.  The idea that publishing 3D models of weapons is going to cause a flood of “ghost guns” into the world is a slaver fantasy.  It’s a lot cheaper to buy (or steal) a mass-produced weapon, and it always will be.

    I did not get into this in my affidavit because, although these are things I firmly believe to be true, I cannot testify to them from my personal experience, but due to what I’ve learned from other sources.  It is the job of the litigants to find those who can testify to all relevant claims based upon their direct experience.

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  8. When I was in Florida earlier this month, a couple of police officers complimented me on this t-shirt. You never know who might be on your side…

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