SILENCERS ON AIRGUNS?
("Airgun Sound Moderators, Sound Dampers, etc.")
(This includes Paintball Silencers!!)
Reprinted, with permission, with updates and corrections, from Silencers on Airguns, by Robert Beeman 1999, Airgun Revue 5, p. 43,
Updated 20 August 2008
See below for the latest update on an airgun silencer* case: THE OWNER IS GOING TO JAIL FOR AT LEAST 15 YEARS!!
See note below on new ruling by BATF (ATF) -somewhat good news.
*(It really doesn't matter if the sound reducing device is built in or attached, nor does it matter whether it is called a silencer, moderator, muffler, sound dampener, or whatever - or even if it was built so that a single discharge on a firearm will destroy it.. An airgun with a silencer almost surely is another arrest or lawsuit waiting to happen! At best, the owner of an airgun silencer may come out of court with only a few thousand dollars in legal costs and a felony record for a suspended sentence! The fact that many have been sold on the open market will not excuse the violation nor reduce the fact that the silencer user has given airgunning a bad name and a further push toward onerous restrictions!))
See note below on the first criminal case in the USA regarding an airgun silencer! Bad news!
And see the author's note of 26 April 2006 for a possible, even probable, final solution to this problem!
Also appearing as Airgun Silencers - A Hazard to Your Legal Health? by Robert D. Beeman, 2002, Airgun Illustrated October 2002: pg. 100-102.
See notes added to the end of this
First, off - let it be clear that I love silencers, on firearms or airguns. My fascination with them began in the 1950s when the owners of the Krico firearms factory in Germany handed me a special Krico bolt action .22 caliber firearm rifle. It looked rather ordinary, with a barrel diameter a bit larger than typical, perhaps a target weight barrel. We went to their test firing tunnel and they loaded the rifle and asked me to carefully aim it and fire at a fresh paper target about 50 feet away. When I pulled the trigger, I heard the action click, but felt that the gun must not have discharged. Upon checking the target through the spotting scope, I saw a bullet hole right about where I had been aiming! A silencer arrangement, or "shroud" had been built right inside the barrel of this special model! In Germany, it is extremely difficult for an ordinary citizen to own this model. However, in England and France, silencers are considered as a way to prevent the public nuisance of firearm or even airgun noise. What harm is there is not disturbing the neighbor when you are safely firing your gun in the backyard or basement?
My brother, Gary, and I have desperately wanted one of those silenced Krico rifles for years. Under the federal laws of the USA, in some states it is only necessary to pay $200 for a special silencer transfer tax in order to own a silencer. This tax was established by the National Firearms Act of 1934 with the intent to make the tax "cost prohibitive". The fee has not changed since 1934, but $200 is no longer very much money! However, under the laws of California and many other states, it is impossible for an ordinary citizen to have a silencer - built-in or as an attachment to the gun - even if he is eligible to apply for the federal transfer tax or state permit for a machine gun! So, although it is legal, even recommended and courteous, to own a silencer in some parts of the world, they are highly restricted in the USA - and, fellows, this article basically is directed to those of us who live in the USA! It doesn't matter what we think, what the always present "talking heads" at gun shows, etc. say, or how we wish things to be; what we are talking about is what the laws here actually say and what the American legislators, authorities, and the public (at large or in juries) think!
Silencers in the USA
Gun silencers, or discharge sound moderators, as they are more correctly called, are designed to slow and dissipate the sudden expansion of the gas that propels a projectile up the bore of a gun. In the most effective arrangements, the release of some of this pressure begins to occur through holes in the barrel, which vent to a surrounding pressure dissipating chamber, even before the projectile exits the muzzle. The pre-1940, less- effective silencers were aided by a “wipe”, a flexible sheet of material through which the projectile must push upon exiting the moderating device. This wipe gives a better seal to the gases whose dispersal is slowed and thus more thoroughly damped by baffles and/or sound absorptive material within the moderator. Today's improved models use less volume, have better designed baffles, and may add new ablatives to give even greater sound reduction without the use of old-fashioned wipes.
A good silencer can be quite effective on firearms whose projectiles are sub-sonic, that is below the speed of sound (about 1100 fps under most circumstances). Supersonic projectiles generate their own pressure wave which can make a cracking sound at each object that it passes. Air gun silencers (airgun moderators) use similar principles as firearm silencers but, because of the low energy of airgun pellets, and the delicate nature of their flight, they generally do not use any form of wipe.
Gun silencers are fairly popular in countries where they are legal. Originally designed to reduce the discharge sound of firearms, they have now appeared in several versions for airguns. Silencers are also known as sound moderators, sound suppressors, sound dampers, sound dampeners, sound modifiers, discharge expansion chambers, barrel shrouds (perhaps the most obviously devious name of all), and a variety of other contrived names. A silencer by any other name is still a silencer! Regardless of their labels, they are all the same in the eyes of the law- if the device, even if removed by destroying the gun to which it is attached, will reduce the discharge sound of a test firearm by one decibel, it is a silencer. What about silencers in the United States?
Well, first, before an American gets too excited about having an airgun silencer or air gun moderator, it should be noted that these devices have almost no effect on spring piston airguns. I installed two of the models, that are considered to be extremely effective by British airgun authors, on a Beeman R1 magnum air rifle and a Beeman/Feinwerkbau Model 124 Sport air rifle. I had two keen eared observers face so they could not see the guns and I proceeded to fire these two guns, with and without the silencers attached. The observers, at both near and far distances from the guns, were completely unable to tell which shots involved silencers and which were fired from bare gun muzzles. The reason for this is simple: spring piston guns do not release a large amount of high pressure air into the atmosphere when they are fired. Rather they literally use only a handful of air as a cushion between the pellet and the real source of the power, the mainspring behind the piston with its air seal. The controlled expansion of a spring is almost silent. If the barrel has enough volume to roughly contain this small volume of air when expanded the report will be quite low (however, even spring piston air rifles with very short barrels can have an objectionably sharp report). Therefore, airgun silencers are virtually useless on the majority of adult airguns. It is amusing to see that a very few airgun makers and/or sellers have gone to promoting silenced ("dampened") spring-piston airguns - a type of gun on which such devices have almost no effect - except on sales! The normally low discharge sound of such airguns leads the buyers to think that they really have a silenced gun!
Some silencers can be effective on pneumatic and CO2 airguns because the discharge of compressed gas from these guns is somewhat similar to the explosive release of gases from a firearm. But then we get to consideration number two. That is, their legality and public acceptance in the United States. Most public opinion, and several state and federal laws, most notably U.S. Code, Title 26, Section 5845, are strongly opposed to firearm silencers. While their use may be considered a matter of neighborly courtesy in countries like England and France, these devices here are equated with Mafia or terrorist weapons and terrible tools of violence. In some places, airguns already have been grouped together with firearms and are now fully banned or severely regulated. Airgunning needs all the public support that it can get to prevent that treatment here; the very negative general public reaction to silencers in America should be reason enough for most thinking airgunners to avoid association with silencers/moderators/shrouds. Just being legal or just being right is not a good enough basis for bringing discredit to yourself or your peers - even if you don' t care about your finances or mind spending some time in jail while your case is resolved!!!
It is illegal for most persons, without very special permits or certain law enforcement status, to even possess devices which meet the definition of silencers or sound moderators or "dampeners". Under the federal law, silencers are given exactly the same classification as machine guns. In California the law is even more strict, it is possible, but extremely difficult, to get a license to possess a machine gun, but there isn’t even a provision for a silencer/moderator license. In most of the laws, silencers are defined as devices that are capable of reducing the report of a firearm. Reducing has been defined, by federal authorities, as meaning a reduction of as little as one decibel of sound. According to the highly capable firearms lawyers who have advised me on this matter, the courts could well frown on any device that is CAPABLE of being attached to a firearm which could reduce the discharge sound by even that one decibel for even one shot – after all that could be the shot that kills a president.
Some airgunners have felt that if their moderator is securely attached to an airgun, or best of all, built into it as part of the airgun, then it would be exempt from these draconian laws. It does not make any difference if the airgun sound moderator is permanently attached or even built in as part of the airgun! There is NOTHING in the law as to what, or how, the device is attached - to discuss that point is just dreaming or at best just an opinion from some officer- with no impact in court!! The talking heads tell each other this excuse over and over. Even the law authorities have noted that a moderator on an airgun, even one built into the airgun, can indeed be removed, perhaps by even machining away the airgun, or unscrewing the permanent-looking barrel shroud unit,, and then adapted for use on a firearm- i.e. it is capable of moderating the discharge of a firearm - for at least that one decibel reduction for one shot rule. In the law against brass knuckles, there is no mention of allowing their possession if they are permanently embedded in a plastic display block or welded to a metal display plate; it merely says that that possession of brass knuckles is illegal.
I am called upon to serve as an expert witness in a great variety of airgun legal matters. If asked, I would have to officially testify that any airgun silencer (or moderator or shroud or whatever other name has been tagged on to it), whether it was removable or built as part of the airgun, would be capable of being used on a firearm.
The U.S. Bureau of Alcohol, Tobacco, and Firearms, affectionately known as the BATF or ATF, is the controlling agency in matters of firearm law, but they have no jurisdiction over airgun matters. How do they feel about airgun sound moderators? When we asked them, their local agent's remarks supported our lawyers' opinion that any device capable of reducing a firearm discharge, by even one decibel for one shot, is subject to the strict regulations of the silencer laws, regardless of to what it is, or is not, attached. So, although BATF has no jurisdiction over airguns, they do have jurisdiction over devices which could be used on a firearm - and by that amazing federal definition, silencers are FIREARMS! (They certainly were not looking in the dictionary the day that they made that definition!).
An American importer, who is importing one of the notoriously loud PCP airguns, recently went through an exhausting series of sample submissions to the BATF to find an airgun sound moderator design that would be acceptable. They turned down every single design, including one that he deliberately designed so that it could not work on an airgun or a firearm! Does this give us any clue on their mindset or how they would testify in a trial? To be sure, even pop bottles and pillows are capable of being silencers. Some folks are claiming that the latest carbon fiber suppressors for airguns are exempt because they would self-destruct on airguns. However, some of the British makers of these new fiber units wish to reassure you that their units will also work just fine on at least a .22 rimfire firearm! Where a court would rule on the line between what one person might consider absurdity and another might consider reasonable is anybody's guess. No amount of strong opinion and interpretation on our part or on your part is going to make much difference in that!
An interesting Catch-22 twist is that, as noted, silencers are legally defined as firearms and thus a silencer on, or as part of an airgun, comes back into the jurisdiction of the BATF - and it will only be a matter of time before some BATF agent acts on that basis!
What we need is a clear change of law. A promise not to prosecute, or an opinion that "we would never act on an airgun case", doesn't mean much, if anything, when just ONE officer brings just ONE charge, especially if the ONE charged is you! And, the BATF has staff with the mindset noted above. Unfortunately, given today's political climate, relaxation of a weapon law is unlikely. And, whether they admit it on not, the National Rifle Association, and other firearm support organizations, often avoid helping airgunners in some legislative or legal areas. Airguns are not protected under the Second Amendment and the firearm organizations have their hands full, and their resources stretched to the limit, with true Second Amendment problems.
Although BATF seems to think otherwise, perhaps it is reasonable that consideration should be taken of the fact that an airgun silencer may be attached to an airgun or even built as part of an airgun. A judge reasonably might make such a consideration. If you were tried on a silencer/sound moderator charge, a reasonable judge might rule that although you are guilty of violating the letter of at least one of the several silencer laws, he will suspend sentence in light of the circumstances and possible ambiguity. Great, you don’t have to serve time. But you are now an official felon. You cannot vote or hold most public offices. You cannot obtain security clearances and the felon status really does not enhance your job opportunities or social standing. And, perhaps worst of all, to a real shooter, you cannot possess a firearm, and certain other deadly weapons, or have a concealed weapons permit for the rest of your life. And, you are left with the legal bills, probably many thousands of dollars, even if you are judged to be completely innocent. Will you volunteer to be one of the test cases that will clear up this matter? The "good news"? Probably you could/should sue the silencer/moderator/shroud seller (especially a large, well-funded mail order company) for your considerable legal costs and some very significant compensation for emotional trauma and damage to your record and reputation. This would be especially true if the seller made any statement to the effect that airgun moderators, esp. built-in ones, are not a legal problem . That is entirely wishful thinking, without any legal basis whatsoever, but such a remark, or even just the failure to clearly warn you of the possible legal risks, could come back to cost the seller tens or hundreds of thousands of dollars, even for just one case - justified or not! Such a statement by a seller will not protect the buyer/user, but will make it easier to sue the dealer when some airgunner does get into trouble.
There are a number of airgunners who have not felt any adverse effects of possessing an airgun sound moderator, but that simply means that the sword of Damocles has not yet dropped on them. Many airgunners, like drivers who speed on an unmonitored road, have become complacent in their concerns about law enforcement. If airgun shows were crawling with law enforcement agents, as are most firearm shows, then that sword would have dropped long ago. When will some rigid-minded officer happen by your next local airgun show? Some sellers, or some of the talking heads, at airgun shows, or even on the internet or in mail order catalogs, try hard to convince themselves, and others, that the law about silencers does not say what it does say, that what it says does not extend to certain situations, or that it does not apply to them. Test the courage of their convictions by asking one of these sellers if he will sell an airgun silencer to you with a dated receipt stating “airgun silencer” and bearing his name and address! WHEN (not if) the authorities do come to visit a seller it probably will not be a pleasant or casual matter - or just a warning - they have been known for an extremely heavy hand in the past and are now under extreme pressure to not let weapon matters slip out from under them - "anymore".
As it is, most law officers simply ignore airguns as they think that they are "just for kids" and/or they are not clear about the law either. The BATF has tried to avoid any involvement with any airgun matters because they don't have any jurisdiction in that area and most other law enforcement agencies think that it is a BATF and so they avoid this area also. Unfortunately this is changing. The U.S. Consumer Product Safety Commission started proceedings to have airguns with a muzzle velocity over 350 fps declared as capable of “serious bodily injury” and airguns over about 700 fps as “deadly weapons” and move to preventing the manufacture or sale of such airguns. Too many airgunners, even airgun writers, play right into the hands of anti-gunners by referring to their guns as “weapons” or "arms" (see “Word Games”).
Because of the past indifference of most law enforcement activity to airguns, many airgunners tend to think of themselves and their guns and airgun sound moderators as invisible. You never know when your airgun may be subject to very rigid examination. What will happen when focus is placed on your silencer-equipped, "deadly force" airgun when it is found in your home or car after an accident, homeland security event, crime event, or during an unexpected roadblock? An actual example: We have a very WASP neighbor who was strolling, post 9/11, down our very remote country road with his wife, and his beloved Beeman R1 air rifle. Evidently in response to a hysterical "man with a gun" call from one of the very few passing motorists, he suddenly was facing a sheriff's helicopter and roadblocks in each direction by four patrol cars and a bullhorn order to "lay down your weapon and spread your arms and legs on the ground". It so happened that his wife was a trauma and stress psychologist for that Sheriff's Department. She smoothed the situation over so that he managed to get his gun back, IF he would return it to his home immediately. Do you think that a silencer/moderator on his "deadly weapon" would have enhanced his situation? The officers in charge would have been obligated to take action, even if they would have preferred not to do so!
If you should, even accidentally, come into possession of a silencer/moderator, even one completely built into an airgun, perhaps the best thing to do is to cut it open length-wise, discard one half, or mill an inspection slot into one side, and make it into an interesting, non-functional display item, not capable of any action.
Note added 24 September 2001: Since publishing some of the original parts of the above material (Airgun Revue 5 in 1999), I have had a good deal input about it, but nothing which would indicate that any of it should be changed. My younger brother, Gary Beeman (the well-known falconer), an environmental biologist and avian pest control expert, is working with a California law firm which specializes in gun law. They are working, together with local gun lobbyists, to see if they can change the extremely restrictive California law concerning silencers to get an exception for pest control workers. Their lawyers have reviewed the above article and are in total agreement with its position in regard to federal and state law concerning silencers/moderators on airguns. They state that the only hope is actually changing the law, not in getting a favorable ruling. In light of current events, and the resulting anti-terrorist perspective, does it seem likely that any sane legislator would want to sponsor legislation which would loosen the controls on silencers?? Or that the courts would now decide to go easier on silencers? If you really want a silencer/moderator on an airgun, move to a state which allows silencers; go through the long and difficult application for a federal permit and pay the $200 special tax. However, in California, the state provided us with permits so that we could legally own (before we sold the Beeman business) several full automatic firearms , "machine guns", (for testing the super tough Beeman Short Scopes - SS2, etc, which had become popular with SWAT and anti-terrorist teams) but we were not allowed even one silencer.
Note added 23 March 2002 and 8 Nov. 2003: It has been suggested by some of the infamous "talking heads" of the airgun world that I have taken the negative position of this article because Beeman Precision Airguns does not carry silencers. This idea is so silly that it is absurd. First, for many, many years, as explained in several of the historical sections of this website, including Lifetime Awards and Adult Airguns in America, Beeman's had over 90% of the American adult airgun market and virtually every foreign supplier of airgun products offered the Beeman company exclusive U.S. distribution of their products first - we consistently refused silencers and moderators. We refused to be involved due to legal, moral, public opinion, and liability concerns. It was our opinion that just the liability of being sued by even one customer who might have to spend thousands to defend himself, even successfully, against a deadly weapons charge, or worse, spend years in confinement, was too much to risk. None of those American dealers who do sell airgun moderators are even 5% of Beeman's volume. Second, this article was posted long after we sold the Beeman company. We presently have no income whatsoever from the new Beeman company; they are a day's journey away, and we have very little communication with them. Their product mix is quite different than when we sold the company in 1993 and we have no vested interest in their products. However, we do know that they have NO interest in selling airgun silencers!
I understand that some shipments of illegal gun devices, including airgun sound moderators and special sound-dampening barrels or "barrel shrouds", have been confiscated at US Customs – and lost to both shipper and buyer. Of course, the federal fellows also may follow up and try to cause prosecution at both ends of the shipment– and just being logged into the computers as having such involvement in these days of paranoid security considerations could be very bad news.
Note added 13 May 2003, updated 7 March 2005: A BATF information release recently stated: "Numerous paintball silencers tested by the Firearms Technology Branch have been determined to be, by nature of their design and function, firearm silencers as defined in 18 U.S.C., Section 921(a)(24)." (Note well that statement was referring to silencers on paintball guns!!) Actually, although many airgun and paintball silencers/sound moderators have been submitted for testing, apparently not one has ever passed - even those intentionally designed by the submitter not to be functional! Also, the story that BATF has negotiated with the British government to allow entry into the US of silencers built into, or not removable from, airguns is an urban myth, pure wishful thinking, started by a few importers of silenced British airguns. To start with, BATF does not have the authority to do this. Again, test your seller's conviction (no pun intended!) in his beliefs, by asking him to give you that signed and dated receipt, showing his name and address, showing that he has sold you an airgun containing a silencer! Those who think that airgun silencers/sound moderators, or silenced airguns, are imported into this country in significant numbers are looking through the keyhole. Stand up and look around - in the large picture, airgun silencers in the US are almost unknown to the general public and most law enforcement agencies. And, in any case, the expression "but everybody is doing it" has never been a good defense in the real world since you left grade school!
You can talk all day about what your device is called, whether it is built in or attached, and how many of your friends have been "flying under the radar" for years, and you can point to a limited number of such devices, or "moderated airguns" that have been slipping by U.S. Customs and the BATF (because some of their officers THINK, up to some future point, that they do not have jurisdiction), BUT if YOU are charged with possession of a silencer by any officer who indeed wants to prosecute - they DO have an absolutely clear shot at you considering the way the law presently is written. And, under the present world conditions, you will face a hostile environment in court. But, hey, we need some test cases - please step up and be one of the ones who finally get some firm rulings!! If this clears airgun silencers, we will thank you, if not we send our regrets to your cell! (You can expect about ten years of free rent from the prison authorities for a silencer conviction. The specified penalty is up to 10 years and/or $250,000 in fines.)
On November 13, 2005, Robert Silvers, who maintains a pro-silencer website, notes that one ATF office recently has issued an opinion letter (not a law or decision!) about silencers on paintball markers. Go to http://www.atf.gov/alcohol/info/revrule/rules/atf_ruling2005-4.pdf for a pdf copy of the letter. The two conclusions of this ruling (ATF Ruling 2005-4, dated October 12, 2005)) are, in full:
"Held, a device for an unregulated paintball
gun, having a permanently
affixed, integral ported barrel and other components, that functions to reduce the
report of the paintball gun is not a “firearm silencer” or “firearm muffler” as defined,
as the device is not one for diminishing the report of a portable firearm.
Held further, removal of the permanently affixed ported barrel and other
components from a paintball gun is a “making” of a silencer under the GCA and
NFA that requires advance approval from ATF. "
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.
Notes from a 25 April 2006 email from England-(these are NOT my statements):
......various threads have appeared on some airgun forums with infantile statements made claiming that this case proves silencers are legal on airguns in the US without permit etc. I am staggered at this level of stupidity.
Like you, I see that unless shooters choose to act within the letter of the Law, restrictions of a wholly draconian nature will descend upon the shooting airgun community.
I live in the UK and have already seen the shooting sports eroded to the point of non-existence as a result of senseless stupidity and ignorance. Will the US go the same way?? I hope not.
Kindest regards, Nick -------, London, UK
Note by Robert Beeman, added 26 April 2006, revised 20 August 2006:
How Can This Problem Be Solved??
Why haven't we had a definite ruling on the matter of airgun silencers?? Surely, those firms making silenced airguns would benefit from finally having a ruling that cleared airgun silencers - and they surely have the funds and know-how to mount a proper test case or request for ruling. However, it may well be that the reason that such makers, or user groups, have not pushed for a ruling may be the same reason that both pro-gun and anti-gun groups may not have pushed to have the Second Amendment clarified - the ruling just might be opposite of what that group wants! The BATF has ducked the airgun silencer issue by continuing to say that they have no jurisdiction over airguns - BUT they leave the matter open by pointing out that an airgun silencer that could be used on a firearm, even if it was necessary to destroy an integrated airgun to get it, is, by federal definition, A FIREARM - never mind the dictionary and the obvious matter that silencers do not discharge projectiles by "fire" - the official definition simply and really makes it so. This brings to us to a possible clarification - the government could just declare airguns, or airguns meeting certain power levels, calibers, etc. to be FIREARMS - just as firearm silencers are, by such federal definition, FIREARMS
The idea that some airguns, especially some adult versions, might be classified as firearms, as they already are in most countries, is not my idea. In actual fact, some governmental groups have already began to propose what levels of airguns should be classified as "firearms". (Again, remember, that a law can define any object as a firearm!) I strongly oppose such a classification and feel that it would be a disaster and counterproductive to the objectives of both pro-gun and anti-gun groups.
If some, or all, airguns were indeed classified as "firearms" then BATF would have jurisdiction over such airguns and the matter of silencers on them finally would be perfectly clear- the government and anti-gun folks would love such a resolution. This may well be the final solution if some short-sighted airgunners continue to push the envelope and draw attention to the airgun/firearm silencer enigma. Those talking heads who call for "let's make this airgun silencer matter clear for once and all" - may end up remembering that sometimes it is possible to be very sorry to get what you asked for!!
And finally, it seems wise to repeat my statement of last year:
"Airgunning needs all the public support that it can get; the very negative general public reaction to silencers in America should be reason enough for most thinking airgunners to avoid association with silencers." It is incredibly selfish for some individuals to push the envelope on this matter- and thus risk bringing the wonderful field of adult airgunning into a bad light and to invite much greater and overbearing governmental control!.
I continue to be amazed how some silly persons who have put their heads in the sand, by such self-serving and impotent comments as "shrouds etc. aren't silencers" and "the silencer law does not apply if the moderator is built into the airgun" and thus can't see any problems, continue to talk so loudly about those problems.
Sincerely, Robert Beeman