Crimson Trace

March 26, 2014

Judge Rules ATF "Jumped the Gun"

The ATF's methods, management, and merit appear to all be under close scrutiny by just about everyone these days.

In Washington, the House Oversight Committee is again demanding facts related to numerous botched investigations. Those well-known "investigations" have cost lives, "lost" thousands of dollars in cash and resulted in hundreds of illegally-obtained weapons going to Mexican drug lords. Along the way, ATF agents also lost some of their issued firearms- including fully-automatic rifles.

In California, both Ares Armor and EP Armory seem willing to fight following ATF raids on both companies. Those raids apparently came after the companies refused to turn over customer records and some inventory. The "inventory" was only brought into question after the ATF's seemingly abrupt reversal of the classification of 80% complete MSR lowers of polymer. At some undetermined point, those polymer lowers became instead of "blanks"-the classification both the ATF and the firearms industry consider those same parts when made of metal.

NEWS UPDATE: Yesterday, Ares Armor announced it was enacting a new secure encryption system to protect its customer information. Citing a pair of court decisions saying that computers and software could be included in an investigation, the Fifth Amendment protects the encryption key under the right against self-incrimination.

A U.S. District Judge in Washington has now joined the growing ranks of critics.

U.S. District Judge John Bates has issued a ruling that says ATF "jumped the gun" in classifying a device as a "firearms silencer" without sufficient review. Bates is blistering in his criticism of the agency and its decision-making processes.

"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 writes.

"This is not a high bar," he continues, "But in this case, ATF fails to clear it."

Ouch.

The ruling comes after the ATF's classification of the Stabilizer Brake from Innovator Enterprises as a "suppressor" rather than its intended purpose as a "muzzle brake".

If you've fired a rifle with a muzzle brake, or been next to someone firing one on the range, you're painfully aware of two undesirable characteristics-increased muzzle flash and a significant, sometimes painful, increase in noise levels.

Innovator Enterprises felt they'd addressed both problems. Noise wasn't diminished, but some gases were redirected forward-away from the shooter. They were careful to stipulate the goal was not to diminish the sound, just redirect a portion of it away from the shooter.

Innovator Enterprises requested an opinion letter from the ATF classifying their device as a muzzle brake, not a silencer. With the muzzle brake classification, the device could be offered as an unregulated part. Without it, the process wouldn't be worth it.

Six weeks later, Innovator got a letter from the ATF- and a surprise: the ATF had classified the Stabilizer Brake a suppressor. In response, Inovator sued in federal court in Washington, hoping to have the ATF determination overturned.

After examining the case, Judge Bates agreed with Innovator and overturned the Classification Letter. His dissection of why he overturned the ATF is merciless.

This letter, he wrote, "contains hardly any reasoning, and makes no reference to prior agency regulations or interpretations that support its conclusion." Instead, Judge Bates called the ATF letter a brief and informal document and "a non-binding statement of the agency's position on whether the Stabilizer Brake is a silencer."

As such, he wrote, it "will not bear the force of law as applied in future classifications of different devices."

He then took particular exception with how the ATF made their decision, especially with their failure to use state-of-the-art sound measurement devices to make their determination, despite stating clearly in their letter that they had that capability. Instead, he wrote, they based their ruling "solely on the physical characteristics of the device."

Judge Bates then bites - deeply- into the ATF and its decision-making process.

For example, there was his examination of the characteristics test applied by the ATF:

"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. 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."

(NOTE: The parentheses are the judge's, not our interpretation of his remarks.)

The ruling went on to remind the ATF that having "a tail, grey skin and four legs" didn't make an animal an "elephant" or a child's bicycle a motorcycle because it had "three characteristics of motorcycles: two rubber tires, handlebars and a leather seat."

He didn't stop there. He went on to point out that a Bud Light is not a Single-Malt Scotch because it is "frequently served in a glass container, contains alcohol and is served in a tavern" any more than a hockey puck is a "rubber bullet" 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," he wrote, "may not be very helpful in determining whether the object in question belongs in that category."

"Put another way, ATF argues that knowing whether the device actually diminishes the report of a portable firearm is irrelevant to determining whether the device is "for diminishing the report of a portable firearm." 18 U.S.C. § 921(a)(24). It marshals an example in support of this "purpose" interpretation: a pillow might have some mild success at "diminishing the report" of a firearm, and "[b]ecause it could be an effective silencer, then Plaintiff's interpretation would lead to the absurd conclusion that pillows were silencers . . . thus requiring a special NFA license to manufacture or possess them and requiring the payment of a tax."

And Judge Bates wasn't finished. "To make matters worse," he wrote, "other agency guidance uses a different set of characteristics- the six characteristics in the Classification letter appear not to be an exhaustive definitive list."

He then sent the matter back to the ATF for further review-and granted Innovator a summary judgement on its claim because the ATF had failed to "articulate a satisfactory explanation" and "examine the relevant data" in classifying the muzzle brake a "firearm silencer."

Using Judge Bates' comparative critique of the flawed-logic used by the agency in its decision, you could draw the conclusion that possessing three characteristics of a competent police officer (a badge, gun, and arrest powers) wouldn't qualify an individual (or group of similar individuals) to mount complicated investigations where a scrupulous attention to detail, an adherence to the rule of law, or an unswerving dedication to public safety during those investigations were essentials.

Maybe it's just me, but this ruling makes another compelling argument that ATF is an agency in need of a top-to-bottom overhaul.

--Jim Shepherd

Editor's Note: If you're a student of the law, or simply want to see how good legal research can still make interesting reading, you might want to read Judge Bates' opinion for yourself. It can be found at:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0581-17