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.”
I hope dude realizes that some of his blended, deep fried and blown out of the blue bowl,yet live .22lr rounds are now down in the bottom of his grill. Not that there is anything wrong with that….just saying.
Anyone actually have a picture of the device?
The ATF does. That’s how they made their determination, the Feinstein way. They looked at pictures.
At least they looked. That’s more that DiFi would ever do prior to making a determination as restrictive as possible.
that was my thinking also.
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
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
Speaking of San Francisco and their corrupt laws, it looks like their poster boy Senator Leland Yee got caught for public corruption. Making him the third democratic senator here in CA for that to happen too.
http://www.mercurynews.com/crime-courts/ci_25423273/bay-area-fbi-serving-multiple-arrest-search-warrants
For what its worth, UPS Store locations are franchisees and that’s why you get different shipping options there then at the hubs.
I’m patiently waiting for ‘Ghost Gun’ De Leon to get his. The extremist Dems never seem to disappoint when it comes to running afoul of the law and professional ethics. Maybe it’s their arrogant holier than thou attitude; or maybe they lack morals to begin with. Sociopathic tendencies; could that be why *so many* ‘mass shooters’ and shooters in general are Democrats?
Just sayin’.
I wonder how many bags of skeletons other grabbers like Bloomgerg, Watts and Feinstein have in *their* closets.
“I wonder how many bags of skeletons other grabbers like Bloomgerg, Watts and Feinstein have in *their* closets.”
It wouldn’t surprise me at all if there were some actual skeletons.
No shotgun, no way no how. What am I going to do, hang it over the bed? Or stash it under the bed, where the dogs will be stepping on it, and where the housekeeper will have to vacuum around it? Ain’t gonna happen.
There is a .36 hanging on the bed post, and a 9mm at the head of the stairs loaded with hollow points (Golden Sabers + P 124 gr at present) with a reload, and a .45 six feet from there, loaded with 9 230 gr PDX1s, and a 7 round reload. Home invasions around here are very rare, and usually involve illegal drugs; my risk of that occurring is slim to none. My handguns will be enough to deal with any burglar not deterred by my dogs’ incessant barking.
Besides wondering what Shannon has in her closest (grrrrr. Perhaps a black lace teddy?), this is awesome. Now Yee can run for Mayor of SanFran and DeLeon can run for Mayor of Oakland! Bloomy just wet himself thinking about how deep his bench of (corrupt) mayors really is. Congrats Bloomy. Congrats.
Ithaca 87 Featherlight w/ factory PG only setup. This one lives in a hidden central location full-time.
Bedside duty is a rotation between Winchester 1300 Defender w/ Hogue 12″ LOP stock and Remington 870 Police Magnum w/ factory top folding stock.
All 12 gauge, all loaded with Federal reduced recoil buck.
No tears….. just LAWLZ!!!!
This now confirms what ye already knew, Yee is a dirtbag
Winchester 1300 12 GA with a Pachmayr pistol grip, front grip on the pump, 18.5″ cylinder bore barrel loaded with 2-3/4″ 00 Buck Shot. No disco equipment or other special effects. Considering a mounted flashlight though.
The guy was an anti-gun nut who also bolstered his idiot credentials by being anti-video game as well. Good riddance.
Word on the street is that he’s tied to organized crime outta Chinatown… not smart, Leland.
I’m kind of with the Fish and Game people on this one. How many subsistence hunters are going to be able to afford a drone to compete against trophy hunters? With bag limits it definitely is a competition. Plus it is consistent with existing regulations (i.e. same-day airborne), it would be strange to say remote-controlled aircraft and airborne scouting are a no-go, but drones are OK.
I made it through the whole thing, by gum. Fineman doesn’t strike me as very intelligent, charming or even passionate. He IS, however, quite soporific. I need a nap.
My mantra repeated many times is….police serve themselves and protect thier pension. They are nothing more than report takers and assess local taxes.
She’s cute, I’d accept her offer to COMMENT MODERATED all over my COMMENT MODERATED
ETA WHAT? I said CLIMB and TREEHOUSE
Anti-gun: no compromise, no correctness, no compassion, no consistency, no conscious, no.
Only support I need from a gun company is make a good quality guns at a resonable price, and good customer service
So far Ruger fits the bill, I own five of their hanguns, of various favors, have never had to send one back to factory. Always goes bang when I pull the trigger. Has met my expections, need nothing more from them.
http://key-top.com/ Bingosio Bingosio googleusi