Court rules ATF did not properly decide that Innovator muzzle brake is a silencer

[jimpeel]

SOURCE

SOURCE w/ PATENT DIAGRAMS

The court found that the ATF designation of the Innovator as a silencer to be capricious based upon the agency's definition of a silencer based on physical characteristics of "known silencers." The agency stated that three physical characteristics found on silencers, which also exist on the Innovator muzzle brake, qualifies it as a silencer.

The court also found that the agency did not perform any sound testing on the device even though the agency lab possesses equipment for that purpose.

In calling the agency's comparisons of certain characteristics (three of which were enough to warrant the classification) capricious, the court gave the following comparisons of its own.

From the article at Courthouse News:

"Hypotheticals further illustrate the weakness of this methodology," he ( U.S. District Judge John Bates) 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."

So Judge Bates remanded the issue back to the BATFE for reexamination.

[KyJim]

The judge remanded the case back to the agency. A key portion of the opinion (according to the link provided by the OP):

"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."

So, based upon more rational factors, BATFE could conceivably still find the device to be a silencer.

[Aguila Blanca]

Can't happen.

The court ordered the BATFE to be rational. I don't think they can do that.

[maestro pistolero]

At the risk of asking the obvious, why not rely primarily on a test which determines the degree of sound suppression?

[Ruger480]

I can't find these for sale online. How come? I can't even find the company that makes them (Innovator Enterprises).

Oh and, this was very funny

The court ordered the BATFE to be rational. I don't think they can do that.

[dogtown tom]

Ruger480 I can't find these for sale online. How come?

I would imagine it's because the manufacturer doesn't want to sell a muzzle brake that ATF believes to be a silencer.

[Ruger480]

I would imagine it's because the manufacturer doesn't want to sell a muzzle brake that ATF believes to be a silencer

I suppose....think they'll sell them now, or at least soon?

[dogtown tom]

Ruger480

I suppose....think they'll sell them now, or at least soon?

Not a chance, if you read the article the judge didn't agree with the plaintiff, he threw it back on ATF to revise the methodology.

[44 AMP]

At the risk of asking the obvious, why not rely primarily on a test which determines the degree of sound suppression?

Because the degree of sound suppression the device produces is legally irrelevant.

Because of the specific wording of the law, it is the intent to silence a firearm (without prior Fed approval) that is the crime.

SO, it is technically possible you could be convicted of violating the law even if the silencer doesn't work (reduce noise a measureable amount).

it is also technically possible that someone building a muzzle brake type device, that unintentionally reduced the sound level could be found innocent of violating the law. (although how one could convince a court of this, I have no idea).

Obviously, if you make a device to reduces the sound level, and it actually does to some measurable degree, your "intent" is clear.

This case appears to be where a device was submitted for classification (prior to production and sale to the public), and the BATF ruled it was a silencer.

The inventor disagreed, and went to court, where the judge looked at the BATF evaluation letter, and applied rational thought, which apparently, the BATF didn't do.

[maestro pistolero]

What a great answer. i have to take your explanation at face value, as I have no independent knowledge of how suppressor/silencer law works.

The disconnect between the purpose and intent of the law (to regulate devices that reduce the sound signature of firearms), and the effect of the law as you describe it (to regulate the design characteristics and intent of the designer) is rather abstract.

Perhaps it's overly ingenuous to think so, but it would seem that the only test ought to be: Does the device reduce the sound signature by (x) decibels, or (x) percentage decibels?

[jimpeel]

I can't find these for sale online. How come? I can't even find the company that makes them (Innovator Enterprises).

This is quite correct. I went to the Thomas Register http://www.thomasnet.com/ and could not find any company by this name. The Thomas Register lists over 700,000 companies throughout the United States and their products and brand names. In its printed form the Thomas Register is a set of books that is over five feet long. It is the Encyclopedia Britannica of the business world.

[1-DAB]

Hope the ATF rewrites things to say if a device reduces sound by X decibels, then it's a silencer.

[Ruger480]

This is quite correct. I went to the Thomas Register http://www.thomasnet.com/ and could not find any company by this name. The Thomas Register lists over 700,000 companies throughout the United States and their products and brand names. In its printed form the Thomas Register is a set of books that is over five feet long. It is the Encyclopedia Britannica of the business world

Sooooo...do you think that is significant for some reason? Or do you think its just poor journalism on the part of the article I lifted the name from?

[natman]

Can't happen.

The court ordered the BATFE to be rational. I don't think they can do that.

The court can certainly order it. That doesn't mean it will necessarily happen.

[dogtown tom]

jimpeel ......I went to the Thomas Register http://www.thomasnet.com/ and could not find any company by this name. The Thomas Register lists over 700,000 companies throughout the United States and their products and brand names. In its printed form the Thomas Register is a set of books that is over five feet long. It is the Encyclopedia Britannica of the business world.

I've been in business for six years with my current name...........I couldn't find it on that website.

[jimpeel]

I've been in business for six years with my current name...........I couldn't find it on that website.

Being that there are far more than 700,000 businesses in the United States it is not surprising that you aren't in there. I was only stating that I had exhausted that resource as an avenue of search. It is the largest compendium of business names, trademark, and product listings there is with few exceptions.

[jimpeel]

Sooooo...do you think that is significant for some reason?

It eliminates a valuable research source, that's all. Sorry if I interfered. I hope your search is more successful.

[Ruger480]

It eliminates a valuable research source, that's all. Sorry if I interfered. I hope your search is more successful

No apologies necessary. I just wasn't sure of the significance of that reference. I hadn't heard of it and wouldn't have thought to use it even I if had. Google tends to be my main source for finding info. Thank you for your input though.

Have you had anymore luck locating information about this company?

[44 AMP]

Have you had anymore luck locating information about this company?

Given the information that the device was submitted to the ATF for classification (and that resulted in the court case), I think it's quite likely that the company isn't "in business" yet.

Or they may be making other things under a different name right now, I don't know.

But if I were going to make something that required govt approval, I wouldn't open up shop until after ALL my legal concerns were resolved.

[jimpeel]

I agree with 44 AMP. Why do the start-up before you have your ducks in a row. That is likely the reason we can't find it yet. I haven't had any more luck at finding them than anyone else seems to be having.

[TDL]

It is interesting that intent is part of the muzzle brake vs silencer, but affect is seems to be used in muzzle brake vs flash suppressor (at least in non fed law)

flash suppressor regulatory rulings in California, which I stumbled on in trying to find some info on how this is looked at for my (non-Californian) jurisdiction that forbids flash suppressor but allows muzzle brakes, seem, in some places, to include any suppression of flash regardless of intent, design or name.

EG here are California regulatory remarks on muzzle brake/compensator (legal) vs flash suppressor:

"Any definition that includes or excludes devices based solely on what they are named, without consideration of whether the devices suppress flash, would exceed statutory authority. Muzzle brakes and compensators are flash suppressors if they reduce or redirect muzzle flash from the shooter's field of vision. The Department believes the absence of specific measurement standards in the statute demonstrates the legislative intent to identify as a flash suppressor, any device that reduces or redirects any amount of muzzle flash from the shooter's field of vision regardless of its name, or intended purpose, or additional purpose. The revised definition is consistent with the legislative intent of the statute."

[emphasis mine]
pages 9-16 here:
http://oag.ca.gov/sites/all/files/pd.../regs/fsor.pdf

Is there any actual case law on suppressor vs compensator/muzzlebrake or any other sources of info on how states that allow one but forbid the other specifically define and/or place probative burdens for what is what?

[44 AMP]

Not being privy to the inner thoughts of the people who wrote the law, I can only guess, but here's my best guess...

Back when the big push was on to ban "assault weapons", based on certain features, that resulted in the 94 AWB and several similar state laws, anti-gun (and this includes party lockstep politicians) were given their marching orders from on high, that certain gun features were "bad" and to write a law that banned them, because of that. I rather doubt any explanation was provided to them WHY certain of the listed features were bad, beyond the nebulous "makes it easier to kill people".

According to what I heard (no way to verify) flash suppressors got on the list, because the "standard" size would accept a rifle grenade, or so the anti's believed. It appears that this "logic" was not provided to the people who wrote the CA law you quoted, and they apparently believed that since flash suppressors are "bad" it must have something to do with the flash, and so wrote that crap into their law.

Remember that the level of firearms technical knowledge these people have ranges from actually knowing the inconvenient truth (and generally ignoring it) to thinking a barrel heat shield is "the shoulder thing that goes up" and that magazines are used up when the ammo in them is fired.

When it comes to guns, many/most of them clearly don't know much about what they are writing and passing laws to control (and seem to care even less), which makes me seriously consider what, if anything, they know about everything else they makes laws about.

[JimDandy]

which makes me seriously consider what, if anything, they know about everything else they makes laws about.

THAT rabbit hole doesn't lead to Wonderland. Especially as you can add economics to that list. Remember the suggestion of a tax rebate for shotguns with cylinders? Turning in something like 3 Rossi's a year would have taken care of my tax burden AND paid for the Rossi's.

[Armorer-at-Law]

Because the degree of sound suppression the device produces is legally irrelevant.

Because of the specific wording of the law, it is the intent to silence a firearm (without prior Fed approval) that is the crime.

SO, it is technically possible you could be convicted of violating the law even if the silencer doesn't work (reduce noise a measureable amount).

it is also technically possible that someone building a muzzle brake type device, that unintentionally reduced the sound level could be found innocent of violating the law. (although how one could convince a court of this, I have no idea).

With all due respect, I don't think that is exactly correct. It is more like intent + effect.

As ATF pointed out in its briefs for this case, a pillow may be effective as a silencer. Yet, because that was not the intent with which the pillow was made, it is not considered a silencer under the law. A potato can be used as a silencer (single use), but that is not its intended use. However, if you use a potato or pillow as a silencer, you could still be charged with illegal possession of a silencer (if it is not registered).

On the other hand, making a part for a silencer, like a baffle, end cap, or tube, with the intent that it be used in a silencer is still covered even though it alone will not have any sound reducing effect. However, if you make a muzzle brake with no intent that it muffle the report, it will still be a silencer under the law if it has that effect. Lack of intent does not negate effect, unless the item has some common and unrelated use. The "solvent catch adapters" that allow you to screw a can or oil filter onto a barrel really push the line. The "other" use and intent is not strong on credibility. And once the can or filter body has an exit hole, it doesn't matter what you claim was your intent, the effect is there and you possess a silencer.

The statute says:

The terms "firearm muffler" and "firearm silencer" mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.

The "and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication" relates to "including any combination of parts, designed or redesigned," not to the first clause. The law will find that "any device for silencing, muffling, or diminishing the report of a portable firearm" is a silencer, unless it has some other obvious purpose or intent and is not used for the purpose of "silencing, muffling, or diminishing the report of a portable firearm."

The Judge explained:

Even if the purpose of a device is relevant to determining whether it is "for diminishing the report" of a gunshot—and it very well may be—that does not lead to the conclusion that the government seeks: that the device's actual effectiveness as a silencer is totally irrelevant. To use an example, a regulation might define a "space heater" as a device "for increasing the amount of heat" in a room. In determining whether a certain device was a "space heater," one fact that a rational agency would surely consider was whether the device actually gave off any heat. On the contrary, if the agency knew that a certain device was incapable of emitting heat, that should certainly affect the agency's conclusion as to whether that device was a space heater. ATF may be right that a device's purpose is relevant to classifying it—especially when the statute uses the word "for"—but that does not mean that the device's effectiveness or capabilities are irrelevant.

So while intent is relevant to the determination, so is effect.