ATF Jumped the Gun on “Silencer”

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.”