Wednesday, March 26, 2014

DC Court Holds BATFE may not be "Arbitrary and Capricious" about Gun Mufflers

David Hardy , on his blog Of Arms and the Law, brought to my attention a recent case involving the BATFE and gun mufflers.   David's article is worthwhile, but other parts of the case deserve some comment.   In Innovator Enterprises v. United States, the D.C. district court held that the BATFE may not be "arbitrary and capricious", and holds that in the case in question they are exactly that.

This cuts to the quick of much of the BATFE modus operandi.   Not having clearly written down standards or procedures; arbitrarily changing rules after making a determination, feeling the political winds change direction, and making another decision that negates the first; not placing understandable and clear reasons for their decisions that can be argued, appealed, and overruled.

The point is that the judge held that the BATFE could not simply say, arbitrarily, that the devise in question met the BATFE requirements for a gun muffler.

That may sound completely rational and obvious.   But to those of us who have watched the BATFE machinations over the years, it is an enormous slap down of the way in which the BATFE  does business.

From the decision:
A. The agency failed to "articulate a satisfactory explanation" for its decision.The agency decision in this case is embodied by the Classification Letter, which contains very little reasoning or analysis. The entire substance of the agency's justification for classifying Innovator's Stabilizer Brake as a "firearm silencer" is contained in the following three paragraphs:
 The BATFE's letter follows, which basically says that it looked at the devise, and concluded that it had enough characteristics of a gun muffler for them to say it is one without any physical testing whatsoever.  After the BATFE's letter, this follows from the judge:
This is not a "satisfactory explanation" for the agency decision, because the agency's methodology for deciding whether a particular device is "for diminishing the report of a portable firearm," 18 U.S.C. § 921(a)(24), is deeply flawed.
The court makes this humorous analogy to the BATFE's letter:
 Hypotheticals further illustrate the weakness of this methodology. 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.
The court reinforces some restraints that it is putting the BATFE under:
 The most curious paragraph in the Classification Letter is as follows, in which the agency candidly admits it could have actually tested Innovator's Stabilizer Brake to determine how it affects the "report" of a gunshot, but did not do so:
Although FTB utilizes state-of-the-art sound metering equipment to demonstrate that various items are capable of reducing the report of a portable firearm, these tests do not affect the classification of any item. Our silencer classifications are based solely upon the physical characteristics of the device under examination.

Classification Letter, AR at 15 (emphasis in original). This passage is an admission by the agency that it is capable of coming to a definitive, scientific determination—using what it describes as "state-of-the-art sound metering equipment"—of whether a device is capable of "diminishing the report" of a firearm. What is missing is a helpful explanation as to why it did not do so.
There is at least some possibility that this court will require the BATFE to follow established law, rather than its regulatory whims.   When a court case directly affects the BATFE, it tends to pay some attention to it.  This case could have indirect implications for the EPArmory 80% receiver case, because the lack of direct, understandable standards is suspected to be an important factor in that case.

To emphasize the importance of legal research into these matters, the court cites  P. Clark, Criminal Use of Firearm Silencers:
 Classifying one particular device as a "firearm silencer" is a relatively unimportant question in the grand scheme of federal firearm regulations. Indeed, it is difficult to determine what exactly Congress was concerned about in deciding to regulate silencers at the federal level.  See, e.g., P. Clark, Criminal  Use of Firearm Silencers, 8 W. CRIM. REVIEW 44, 48 (2007) ("The  1934  congressional debates [over what became the National Firearms Act] provide no explanation about why silencers were licensed."). In other words, the stakes here are low. This weighs against Chevron deference.

It must have been gratifying to see the court state the obvious: "The stakes here are low".   It makes you wonder why there are any "stakes" at all.

If you are going to regulate all gun mufflers, the obvious standard for gun mufflers is to determine if the device actually reduces the report of a gun shot, the reduction is statistically significant from a mathematical test, and that it reduces the sound more than other devices that are not gun mufflers and which are legally acceptable.

If it does not, it is not a "gun muffler".  The judge did not directly say as much, but it is a clear step in that direction.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


Wireless.Phil said...

You know what is really funny?
When they use these in the movies on revolvers.

Anonymous said...

This ruling should make gun banners afraid... it should be extrapolated to defining an assault rifle based on a certain number of cosmetic features as well.