ATF Jumped the Gun on “Silencer”

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By Dan McCue [Republished with permission from courthousenews.com]

Uncle Sam arbitrarily classified a new device as a firearm silencer without sufficient review or a decent explanation why, a federal judge’s somewhat scathing opinion states. “In any agency review case, a reviewing court is generally obligated to uphold a reasonable agency decision that is the product of a rational agency process,” U.S. District Judge John Bates wrote Wednesday. “This is not a high bar. But in this case, ATF fails to clear it.” Innovator Enterprises Inc. brought the complaint as the creator of the “Stabilizer Brake,” a device that attaches to the muzzle of a rifle with the intent of substantially reducing the firearm recoil and redirecting noise away from the shooter toward the target, among other things . . .

Typically, such devices, sometimes called “muzzle brakes,” are used to reduce recoil by redirecting combustion gases created by discharging a firearm, Bates summarized.

Such devices can also have their disadvantages, however, namely increasing flash, reducing bullet velocity, and increasing the noise experienced by the shooter, the court noted. In developing the Stabilizer Brake, Innovator thought it had solved the latter problem by directing the noise forward, away from the shooter.

On Aug. 2, 2012, Innovator asked the Bureau of Alcohol, Tobacco, Firearms & Explosives to provide a classification letter, designating the device as either a firearm muffler or firearm silencer.

The distinction is critical to a company in Innovator’s line of work.

Any device that is deemed to be a “firearm silencer,” defined under federal law as “any device for silencing, muffling, or diminishing the report of a portable firearm,” is subject to extensive taxation and registration requirements.

By comparison, a device that does not so qualify can be produced, marketed and sold free from federal restraints, subject only to state regulations of varying severity.

The ATF responded six weeks later, saying it determined that the Stabilizer Brake was indeed a silencer.

Innovator sued the agency in the federal court in Washington, D.C., seeking to overturn the agency’s determination.

In doing just that, Judge Bates said that he found the Classification Letter in question to be “a brief and informal document.”

“It contains hardly any reasoning, and makes no reference to prior agency regulations or interpretations that support its conclusion,” he continued. “The letter appears to be a non-binding statement of the agency’s position on whether the Stabilizer Brake is a silencer, which will not bear the force of law as applied in future classifications of different devices.”

While the Firearms Technology Branch of ATF obviously has far more experience in classifying firearms and firearm silencers than the court – a reality that would ordinarily weigh in favor of deference to the agency – Bates found that, in this case, it failed to use to use state-of-the-art sound metering equipment to actually test the Stabilizer Brake and, instead based its decision solely on the physical characteristics of the device.

“Even if this general approach of relying ‘solely’ on physical characteristics were sound, the agency did not perform a scientific or rigorous comparison of physical characteristics,” the ruling states. “Instead, it consulted a list of six characteristics that are allegedly common to ‘known silencers,’ and then, if the submitted device has some (unstated) number of those characteristics (here, three out of six was enough), it is a ‘firearm silencer.’

“But where did that list of six characteristics come from? The agency never explains whether those six characteristics are present in all (or most?) silencers. The agency never explains whether there are other common characteristics that do not appear on its list. And the agency never explains how many characteristics in common are necessary to be classified as a ‘firearm silencer.’ What if a device has an ‘encapsulator’ and an ‘end cap; – is it a silencer? What about a device that is attached to the muzzle of a rifle, and is full of “sound dampening material,” but has none of the other five physical characteristics-is it a silencer? The agency’s approach leaves Innovator (as well as other regulated parties, and reviewing courts) guessing.” (Parentheses in original)

From there, the judge’s assessment of the ATF’s review became even more pointed.

“Hypotheticals further illustrate the weakness of this methodology,” he wrote. “A mouse is not an ‘elephant’ solely because it has three characteristics that are common to known elephants: a tail, gray skin and four legs. A child’s bike is not a ‘motorcycle’ solely because it has three characteristics common to known motorcycles: two rubber tires, handlebars, and a leather seat. And a Bud Light is not ‘Single-Malt Scotch,’ just because it is frequently served in a glass container, contains alcohol, and is available for purchase at a tavern. To close with a firearm-related example a hockey puck us not a ‘rubber bullet,’ just because it has rounded sides, is made of vulcanized rubber, and is capable of causing injury when launched at high speeds. Learning that one object has three characteristics in common with some category may not be very helpful in determining whether the object in question belongs in that category.

“To make matters worse, other agency guidance uses a different set of characteristics – the six characteristics in the Classification letter appear not to be an exhaustive definitive list.”

Bates remanded the matter back to the ATF for further review. He also granted Innovator summary judgment on its claim under the Administrative Procedure Act, holding that the agency’s action must be set aside as arbitrary and capricious because of the agency’s failure to “articulate a satisfactory explanation” and “examine the relevant data” in classifying Innovator’s Stabilizer Brake as a “firearm silencer.”

“That is not the same thing as actually holding that the Stabilizer Brake is not a silencer,” Bates wrote. “The court does not have enough information to determine whether the Stabilizer Brake is or is not a silencer; nor is it the court’s responsibility to do so. The duty of making that determination – using a rational process – lies with the agency.”

comments

  1. avatar LongBeach says:

    A brief and informal document that could ruin your life should the ATF decide that they want to change their definition of something. What a wonderful agency.

  2. avatar KingSarc48265 says:

    That last sentence made me laugh alot harder than it should have.

    1. avatar Roscoe says:

      Under the tone and policies set by this Democrat Administration, the ATF will probably never be able to come up with a “rational process” regarding anything to do with firearms, not that they ever could before.

      Decisions are probably now all ad hoc, based on “common sense” (gun control) and subject ot revision as needed to achieve this administrations agenda, just as with the IRS.

  3. avatar Anonymous says:

    Clearing any kind of bar is not the ATFs style.

    1. avatar PavePusher says:

      Nope. They prefer to shoot the bar, then charge it for being a victim of government abuse and over-reach.

  4. avatar bontai Joe says:

    I love the judge’s analogies, especially the mouse and elephant one.

  5. avatar Tommy Knocker says:

    Anyone who has worked in govt LE laughs at this story. They all realize the court is a paper tiger. Zero individual or agency repurcussions or punishment.

  6. avatar PhoenixNFA says:

    Anyone actually have a picture of the device?

    1. avatar BillF says:

      The ATF does. That’s how they made their determination, the Feinstein way. They looked at pictures.

      1. avatar Gene says:

        At least they looked. That’s more that DiFi would ever do prior to making a determination as restrictive as possible.

        1. avatar natermer says:

          DiFi’s judgement is as such:

          Should ‘it’ be regulated by the government? (were ‘it’ can be anything)

          the answer is:

          Of course, duh.

    2. avatar Thomas Paine says:

      searching for ‘innovator enterprises’ or the brake itself, yield nothing. hmmm?

  7. avatar T says:

    I’ve decided my vote, abolish the ATF. Can I get a second motion?

    1. avatar Gene says:

      Seconded.

    2. avatar slidesauce says:

      Aye.

    3. avatar A-Rod says:

      All those Opposed. (sound of crickets in the distance)

    4. avatar ThomasR says:

      Yep.

  8. avatar Rusty Owen says:

    For some reason the hockey puck analogy made me smile.

  9. avatar mrvco says:

    Too bad he didn’t suggest that to be classified as a “Silencer” a device should perform in such a way that is consistent with the definition of “Silence”… “complete absence of sound”.

  10. avatar Thomas Paine says:

    that was my thinking also.

  11. avatar Alpo says:

    Oh you Americans…

    You’ve got to come to the Republic of NJ for some real insanity:

    As per a recent interpretation by the State Attorney General’s Office, the New Jersey Division of Fish and Wildlife’s Bureau of Law Enforcement is advising sportsman and sportswomen that the possession and use of air guns equipped with silencers is illegal pursuant to New Jersey Criminal Law. Silencers are defined as any device designed to lessen or muffle the noise of the gun discharging. We urge all users of air guns to determine through the manufacturer of the firearm whether or not they are so equipped. The possession and use of such air guns is ILLEGAL.
    It is important to note that the ultimate responsibility lies with the person using the gun to determine if it is equipped with a silencer per the law by contacting the firearm’s manufacturers.

    http://www.state.nj.us/dep/fgw/airgun_info.htm

    EDIT: This is what they’re talking about-
    http://www.gamousa.com/family.aspx?familyID=71

    1. avatar dualstrike00 says:

      thats a pretty funny thing to get there panties in a bind over ….. are you even able to kill anyone with a suppressed bb gun

  12. avatar Notguiltfree says:

    Look out Innovator, now you,re going to get raided by the ATF the same as Ares Armor did because you dared to take them ( ATF ) to task in court and received a summary ruling against their practices. Wipe your computers, guys……..

    1. avatar ThomasR says:

      I was thinking the same thing; Private citizen; (Private worm to the BATFE) wins in court against the Bureau; JBT’s stomps said “worm”.

      BATFE= JBT’s, just in case I wasn’t being clear as to which JBT’s I was referring to.

  13. avatar ErrantVenture11 says:

    Someone buy this judge a single-malt scotch. He’s earned it.

    1. avatar rip_vw32 says:

      Sure!! so long as it only has to meet the three above requirements: Contains alcohol, is brownish in color and is served in a glass…. That single malt would be an IPA!

      1. avatar Semper Why says:

        Do you normally drink an India Pale Ale that is brown? If it’s brown, why do they call it pale?

  14. avatar wes says:

    Apply cool water to burn.

  15. avatar A-Rod says:

    While I enjoy the judge’s analogy of the elephant and the mouse, the child’s bike and the motorcycle, etc. federal law does not use that same logic to distinguish the difference between industrial grade hemp and marijuana.

    1. avatar neiowa says:

      True. The potheads will smoke anything, From ditch weed to their socks.

  16. avatar int19h says:

    On the bright side, once they clear it out in courts, they can make one awesome ad: “a muzzle brake so quiet, ATF misclassified it as a silencer!”.

  17. avatar Nighthawk says:

    The ATF really needs to be removed from existence. They waste time, money, break laws, ignore existing laws, operate outside the constitution and haven’t made anyone safer. Love the judges analogies but rationalizing things for passionate, uneducated liberals will not actually get them to understand anything.

    1. avatar Rich Grise says:

      Write me in in 2016: http://rich_grise.tripod.com/cgi-bin/index.pl
      I’ll fire the whole damn government!

      1. avatar Thomas M. says:

        I will support any candidate that writes his webpage in server side perl.

        Kudos on winning me over to your platform.

        -Thom

        1. avatar Rich Grise says:

          Wow! Thanks! Have you signed my guestbook yet? I’m counting on all the Liberty-loving people to elect me the anti-Obama!

          Individual Liberty is Supreme!

      2. avatar DownrangeFuture says:

        Okay. It’s official. I’m writing you in on 2016. Hey, it’s a long shot, but at least I won’t feel like my vote was wasted voting for whichever side of the incumbent party takes over the farce, err, government. Jerrymander my vote will ya? Lol.

  18. avatar Blake says:

    You do realize this ruling means absolutely nothing, right? As far as BATF is concerned, they are the law, and as such, are not bound by silly things such as a legal opinion by a mere judge.

    BATF will kick in doors then decide which laws have been broken, if any, then, do their best to bankrupt anyone who dares challenge their authority.

  19. avatar Hannibal says:

    “On Aug. 2, 2012, Innovator asked the Bureau of Alcohol, Tobacco, Firearms & Explosives to provide a classification letter, designating the device as either a firearm muffler or firearm silencer.

    The distinction is critical to a company in Innovator’s line of work.

    Any device that is deemed to be a “firearm silencer,” defined under federal law as “any device for silencing, muffling, or diminishing the report of a portable firearm,” is subject to extensive taxation and registration requirements.”

    Anyone else having trouble with this section? To me it appears to indicate there is an important distinction between a muffler and silencer. Then it goes on to say a silencer is a device that muffles! What’s going on?

  20. avatar JAS says:

    Aloe Vera on the BURN!

  21. avatar OHgunner says:

    If only this were a ruling on the AWBs. The same exact argument can be made.

  22. avatar Nigil says:

    It’s a shame that:
    The company in question won’t get that time or money spent in court back.
    The company won’t get all those lost sales back while they spent the time fighting this.
    The ATF has not been punished or restricted in any way for harassing and wasting the time of citizens.
    The ATF can still just make up some bullcrap and probably still get this device classified as a silencer.
    The ATF, a regulatory agency, has the power to make people felons and ruin their lives based on the decisions of individuals. Only legislative bodies should have the power to criminalize acts.

  23. avatar Southern Cross says:

    And guess who the ATF will target in their next “let’s make an example” raid.

  24. avatar Jameshar says:

    http://key-top.com/ Bingosio Bingosio googleusi

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