On Friday, just before the end of the work day, the ATF released a bombshell of a declaration. In their opinion the previous letters claiming SB Tactical’s stabilizing arm brace is perfectly legal were actually completely wrong, and they decided to completely reverse their decision and make the misuse of the item illegal. It’s a landmark change, since this concept (that the use of an object determines what it is rather than its intrinsic qualities) has never been applied to firearms ever in the history of the world. It would seem to some like this is the end of the line barring some legal challenge after an arrest, but there is one last card up SB Tactical’s sleeve: Declaratory Relief.
The concept is pretty straightforward. There’s a provision in U.S. law that allows for a company to bend the ear of a judge and force the government agency to reverse their decision, and it has actually been used successfully as recently as 2014. First, here are the relevant bits of law (teased out of the court documents):
28 U.S.C. § 2201(a) provides in pertinent part “In a case of actual controversy within its jurisdiction, […] any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”
5 U.S.C. § 702 provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
5 U.S.C. § 704 provides in pertinent part that “final agency action for which there is no other adequate remedy in a court are subject to judicial review.”
5 U.S.C. § 551(13) provides that “‘agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act . . . .”
5 U.S.C. § 551(4) defines a “rule” as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy .
In short, in a situation where an autonomous government agency declares their opinion on the interpretation of a Federal law, anyone who is harmed by that declaration can seek declaratory relief from the court system. It’s a handy tool to keep people like the ATF from arbitrarily and capriciously declaring muzzle brakes as silencers (which SIG SAUER is currently fighting) or pistol braces as stocks.
The specific case referenced for this information is Innovator Enterprises Inc v B. Todd Jones (then director of the ATF). In that case, Innovator Enterprises produced a modified version of Noveske’s Flaming Pig flash suppressor to include a muzzle brake on the inside, but without sealed blast chambers. The ATF took one look at the design and declared it a silencer, much like how they took one look at SIG SAUER’s MPX muzzle brake and similarly declared it a silencer. The judge saw through the ATF’s BS and ruled that their finding was both arbitrary and capricious, invalidating the declaration and making the unholy confabulation once again legal without a tax stamp.
It is entirely possible that we are about to see a similar smackdown take place from SB Tactical. Since the logic used by the ATF is both arbitrary and capricious (their ruling is only for this one device, so using two hands to shoot a handgun would not make that object then an NFA regulated AOW despite the same logic leading to that conclusion, and the flip-floppy nature of their statements) SB Tactical has a good shot at making the ATF eat their words and allowing people to continue to use their firearms however they see fit.