Like Mr. Silvers, I too am very pro-silencer – but perhaps that makes me a latent terrorist! Such is the enormous stigma attached to silencers (and automatic weapons) in these United States – esp. now. We, on the inside of the gun world, sometimes have a hard time understanding such strangely strong feelings – but I really, really see and feel it when I travel all over the United States and Canada – when being employed as an expert witness in airgun legal matters. This is many times each year- NOW, not some distant point in the past!
Silvers suggests that perhaps the public would support legalizing firearm silencers as a way of reducing noise pollution and harm to the ears of shooters, using the idea that that is the rationale for requiring mufflers on motorcycles. Putting aside the thought that making motorcycles quieter probably does not allow them, as noted by prosecution lawyers, to be used to quietly kill people inside buildings and from hidden locations, I suspect that many of the public would not care about shooters becoming deaf. In fact, they might wish that somehow they could also be made blind, impotent, and lame.
This opinion letter is most welcome, but it does not provide a slam dunk in clearing silencers for airgun use. This opinion specifically states, most notably in its “Held” summary section that it applies just to paintball guns, and only to those which will be destroyed by removal of the silencer. An aggressive prosecutor would strongly stress that this was the obviously limited intent of the opinion and that it was never intended to apply to airguns which can be deadly. I think that an airgunner, arrested on a silencer charge, might get a court ruling, based on this opinion, with only a few thousand dollars of legal expense, to the effect that his silencer was legal IF it was built into the gun and IF it can only be removed from the gun by destroying the possibility of firing that airgun and IF his airgun could not be readily converted to use firearm ammo. Unfortunately, the British courts have already ruled that some airguns can be converted to firearms. And, unfortunately for this matter, many airguns, unlike most paintball guns, are the same calibers as common firearms and have barrels and actions which could resist the pressures of a single firearm cartridge or powder charge. The British authorities ruled that even if one needed a machine shop to convert such an airgun – that would make it a firearm.
So, the good news is that a most welcome step has been made in our favor, but this step applies only to paintball guns with a built-in, permanent moderator. As noted above, it might bail out an arrested airgunner owning an airgun with a built-in moderator; this with only a few thousand dollars of legal assistance and considerable time. For this, we can breathe just a little easier! But remember, that among the vast numbers of fine officers of the law, there are indeed quite a few jerks and some who act without a great deal of thought. In the blink on an eye, you could be the holder of a ticket from one of these fellows - and the problem is then YOURS - and then you had better check your bank balance and calendar to take possible advantage of the this ATF opinion.
Hiding in this good news is a bit of unapparent bad news. While the letter makes reference to the point that a regulated silencer is a device designed to reduce the report of a firearm, it immediately abandons that thought as soon as the device is separate, or easily separated, from the paintball gun. Then the device need only be capable of reducing the discharge sound of a firearm - even by one decibel for one shot! So, this is, in effect, a clear ruling that a separate, or easily removed, moderator, even if clearly designed for airguns, is a firearm silencer if it fails the one shot - one decibel test when tested on a firearm.
One of the things that I have learned from sitting for so many, many hours in courtrooms, listening at enormous length to both sides, is that each side sees their position as clearly correct. Each side presents their case, with varying levels of luck, skill, and opportunity and it takes only the whim, bias, impatience, ignorance, or poor decision of a judge or jury, for an instant, to make the “wrong” side prevail!! I’ve SEEN it happen again and again – sometimes resulting in millions of dollars in loss and/or jail time for the wrongly accused! It is so easy for those on each side to kid themselves into thinking that a court will see the matter their way!! We talk to ourselves and preach to the choir!
Step back and look hard at some of the airguns which have appeared with built-in silencer shrouds and ask yourself how such military-looking, deadly devices are going to be seen by a jury of the general (read, basically anti-gun) public. I can just see the prosecution attorney holding one of these black guns up high and railing about it to a shocked group of "good citizens". Those airgunners who cannot see the danger here, should get out of the clubhouse more!
Note Added 3 April 2006 -
America's first airgun silencer case!:
We now have America's first case of a person to be criminally charged in Federal Court with possessing an airgun silencer as a "firearm silencer". Because of other commitments, I had to decline a request to serve as an expert witness in this airgun silencer case, but I think that I should bring some of the details to the attention of airgunners everywhere. The defendant is now imprisoned in Connecticut's MacDougall Correctional Facility and has been in jail since his arrest on June 24, 2004 - almost four years as of this date - and pretrial proceedings are still ongoing!!
In x-raying postal packages for dangerous materials, the federal authorities detected the defendant's legally owned .44 caliber Sam Yang pneumatic rifle - not even one of the infamous black guns. A warrant allowed Postal Inspectors to search the package and they found a "sound moderator" in a pocket of the case for this airgun. There were no aggravating circumstances and no evidence that violence of any kind was intended or involved. This device had been specifically built for use on a Sam Yang air rifle and was specially built with fabric insides so that it would be destroyed by use on a firearm. The manufacturer wrote that "It was made for AIR only. It cannot handle the flash of a firearm." However, the ATF laboratory tested it on a Ruger .22 firearm - and it did reduce the sound for one shot - thus meeting the definition of a firearm silencer. Again, that one shot could be killing a president, the Pope, or even Ted Kennedy!
There is the real concern that a judge or jury might not understand any need for a silencer on a "mere, already quiet" airgun and claim that the defendant was using an air rifle "to disguise the shipment of a real live firearm silencer!" The defendant claims that while some state statutes refer to the test of capability of a device to silence a firearm, the federal regulations may depend on the intent of the making of the device. However, a New Haven Federal Court (United States vs. Alpha McQuinn) actually had a conviction for use of a potato on the end of a pistol barrel during a drug robbery. The AUSA argued that it "wasn't there to make French Fries". The new paintball silencer ruling, that I mentioned above, does not depend on the word "capable" but does consider "intention" to use the device as a firearm silencer They even noted that intending to destroy the attached paintball gun to get the silencer would be an "evil intention"! Try proving that your intentions were good!
So, a great deal of legal effort (= a great deal of time and money) may get around the capability definer in this case, but the defense will still have to deal with the intention and the one-shot test. Personally, I think that he should be found innocent of the silencer charge and, fortunately for the defendant, he may be released on the basis of evidence being improperly obtained - so, we may end up without having a clear ruling - even on airgun silencers with fabric/fiber insides! (But see the progress report below - he was sent away for 15 years and there is an effort to extend that to 22 years!)
What this case does prove is that we are in even greater danger of having arrests and convictions concerning airgun silencers. The radar is coming closer -the increasingly paranoid authorities obviously are now beginning to be concerned about these devices -and were willing to make an arrest based on a silencer designed for an airgun - complete with the specification that use on a firearm would destroy it! Combine this with the previous note from the authorities that intending to destroy an airgun to which a silencer is attached, so that this "sinister device" may be used on a firearm, is an "evil intention".
The precedent of the above arrest will not be lost on future officers who may be more careful of how the evidence, against YOU, is obtained. Remember, it only takes ONE rigid-minded officer to arrest YOU! (So what if 99.9% of the tens of thousands of officers would not have made your arrest?) While YOU MAY get out, your release will not signal that airgun silencers are okay and does four years in jail and hundreds of thousands of dollars of legal expenses sound like it was worth the tiny advantage of having an airgun silencer??
Some of you readers think that I am just paranoid about the airgun silencer issue. Well, pay attention to the real world: Here are some very interesting notes from Tom Gaylord, probably the best, and certainly the most prolific, airgun writer that world has ever seen. These are copies from his outstanding airgun blog at
http://www.airgunwriter.com/blog/blog.htm (You should also check out another of his blogs at
http://remembering-when.blogspot.com/ )
FRIDAY, JULY 07, 2006
Update on the airgun silencer issue
by Tom Gaylord
For more than 10 years I have been advising U.S. airgunners to go easy on installing silencers on their guns. I have recently written an article that addresses the specifics of the law governing silencers for Pyramyd Air, but it isn't up on their website as of the date of this posting. They are extremely busy with the buyout of Airgun Express and I think that will dominate their work for many more weeks, but when that silencer article does go up, it will walk you through the law and how I view it.
Many of you know that I bought a legal firearm silencer to write about the process for Shotgun News. That article was published last year, as part of my "What Can You Do With a 10/22?" series.
I get calls from federal and state law enforcement agencies from time to time regarding airgun laws and various technical aspects of the guns, themselves. A few months ago, I was called regarding a felon who had shipped a big bore airgun with a removable silencer through the mail. I'm now following the court case as it unfolds in Massachusetts. As I've always said, I prefer to learn about the law through news agencies rather than from the defendant's table! Here it is::
SPRINGFIELD - A 2004 search of illegal firearms in defendant Michael A. Crooker's Feeding Hills studio apartment turned up no weapons, but did produce evidence of what seemed a passion for guns. According to testimony in U.S. District Court yesterday, local and federal law enforcement officials found two books, entitled "Guerrilla Warfare Weapons: The Modern Underground Fighter's Armoury" and "The World Guide to Gun Parts," plus a 52-page typed document titled "Legal guns for prohibited persons" during a search of Crooker's former residence.
Crooker is on trial for attempting to mail a sound muffler, which prosecutors have labeled a silencer, accompanied by an air rifle to an Ohio man two years ago. He faces a 15-year minimum prison sentence if convicted of sending a firearm through the mail as a convicted felon. He has been denied bail since his June 2004 arrest.
As a previously convicted felon, or so-called prohibited person, Crooker is barred from owning firearms under federal law. He is not charged in connection with the air rifle, which felons and most anyone can legally possess. Crooker's lawyer has said the metal cylinder at the heart of the case was designed only to muffle the report of the legal air rifle and Crooker was within his rights to own it. Assistant U.S. Attorney Kevin O'Regan has argued someone with Crooker's demonstrated expertise in firearms could have modified the device to fit a lethal weapon, though there has been no testimony to suggest he did.
Yesterday, jurors heard from local and federal law enforcement officials who searched Crooker's apartment, which overlooked a Getty station on Springfield Street. Under questioning by defense lawyer Vincent A. Bongiorni, all conceded they found no firearms at the residence. But former Springfield police officer Norman Shink testified he found the books, including one with its spine cracked at page 97. O'Regan asked Shink to read the language under an illustration on that page. "What can be done? Ingram M-11 submachine gun fitted with silencer," Shink told jurors. U.S. District Court Judge Michael A. Ponsor yesterday told jurors the publications were allowed into evidence to weigh Crooker's knowledge of guns.
An FBI agent later testified a search team seized at least eight firearms from the Westfield home of Stephen Crooker, the defendant's brother. O'Regan held up weapons including a shotgun also known as a "street sweeper," a double-barreled shotgun and a compact, hammerless revolver. FBI Special Agent Robert C. Lewis testified they were among a cache of guns in a locked safe in Stephen Crooker's basement. Lewis said the weapons were recovered from a room off the basement marked "dad's room." However, Stephen's son, Jake Crooker, told agents only he could access the firearms and opened the combination lock to the safe.
In pretrial hearings during the last two years, O'Regan repeatedly told Ponsor he expected to bring new charges against Michael Crooker and charge certain relatives; that has not happened. The prosecution will likely rest its case today, O'Regan said.
SUNDAY, JULY 16, 2006
He's going to jail!
by Tom Gaylord
Michael A. Crooker was found guilty on Wednesday, July 15, 2006 of illegally manufacturing a silencer. He faces a mandatory sentence of 15 years. (Latest flash, July 2007, review of the case, instead of throwing it out, may increase penalties up to 22 years!!).
Crooker made a silencer for a Korean Big Bore 909, a .45 caliber air rifle. In 2004 he sold the rifle and silencer to another party and he shipped it through the U.S. Postal Service, where it was intercepted.
When ATF tested the silencer on a firearm, it silenced the report. That is the legal definition of a silencer. Slam dunk.
Making a silencer is a violation of several counts of the same law. Because a silencer is considered to be a firearm by federal law, the maker has just made a firearm without a license to manufacture - count one. Firearms that are sold are required to have serial numbers, and this one didn't - count two. And possession of an unregistered silencer is also a crime - count three.
The jury did ask for additional clarification on what constitutes a silencer, but the judge was unable to give them anything beyond the law. I have written an article about silencers for Pyramyd Air. It should be up on their web site soon. I included the definition of a silencer in that article, so you can read it for yourself. When it goes up, this is where it will be:
For 12 years I have maintained that silencers and airguns do not mix. People who play with the law open themselves to prosecution. Even if you win your case, the experience will not be pleasant. Now that BATF has a win under their belts, I expect them to prosecute other silencer violations more vigorously.
This was a jury trial.