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The Quiet Felony
By Rob Behr
Interest in suppressed weapons has never been higher in the United States. Thirty-seven states currently allow civilian ownership of suppressors and many, now joined by my home state of Montana, allow hunting big game with suppressed weapons. Perhaps the United States will finally follow Europe’s lead and make suppressors uniformly legal without the extra steps required for acquisition but, at least for now, there are several important and somewhat expensive hoops that must be cleared before a suppressor can be purchased.
The process requires a would-be purchaser to submit a Form 4 request with fingerprint cards and photographs along with a $200 payment for the tax stamp. atf-f-5320-4 For those do-it-yourselfers, a Form 1 must be submitted which allows for a home-built, serialized suppressor. atf-f-5320-1 A complete guide maybe downloaded here: Getting a Legal Silencer
Penalties for possessing an unregistered suppressor are stiff. Violators may receive up to ten years in Federal prison along with a $10,000 fine. Because certain taxes have not been paid, there is also the potential for an additional five years in prison and a $100,000 fine ($500,000 for a corporation or trust). Despite the very real threat of prison and a felony record, people seem very willing to risk their freedom in order to enjoy what very often amounts to the novelty of making a firearm quieter.
Definitions: The Key to Understanding Laws
It is an easy mistake when consulting State and Federal laws to overlook the definitions in favor of reading the law itself. In the case of suppressors, the definition is purposely vague and allows broad interpretation by prosecutors.
The term “Firearm Silencer” or “Firearm Muffler” means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication. Note: Any device that meets the definition as stipulated above in 18 U.S.C. § 921(a)(24) is also subject to controls of the National Firearms Act 26 U.S.C., Chapter 53.
The key word here is “Any.” Any device for muffling the report of a firearm is considered a silencer or muffler under U.S. code. The definition’s addition of the phrases “designed or redesigned” and “intended” to be used in assembling a silencer, further broadens the scope of a prosecutor’s ability to charge cases where plain objects may be construed as suppressors or suppressor parts based on the knowledge and intent of the accused. The consequences for those who choose to dabble with improvised suppressors, based on these broad guidelines, are often severely underestimated.
Movies, which habitually depict criminal actions without repercussions, have taught generations of Americans that you can suppress a firearm with a potato or a plastic bottle or, in this case, with a highbred of the two. https://www.youtube.com/watch?v=iaFDzrUWOEI
It seems very unlikely that the man in this video knows that his experiment in suppression is a violation of the National Firearms Act. If he did, it is doubtful that he would have uploaded it on to YouTube where it has been viewed more than 500,000 times. Few felonies are so public and they are made so because the average American does not associate suppressors with trifling ad-hoc items, but instead with the sinister, screw-on devices used by mob hitmen and assassins. The fact remains, however, that the potato and pop bottle were placed on the rifle to muffle the report. It is a silencer, unregistered and subject to prosecution.
A common response to this type of suppressor, especially when it is being done just to see what will happen, is to belittle the law. I agree it is silly to think of such a trifling thing as a felony that can earn ten years in prison. I agree with the people who rail against a law that includes suppressors in with machine guns and rocket launchers. atf-p-5320-8-chapter-2 But, it is the law and calling it silly will not be an adequate defense if a Federal prosecutor takes an interest in your activities. Even if you should win the case on a technicality, you will still have spent tens of thousands of dollars and had your reputation dragged through the mud for an item you could have purchased legally for less than $1000 and a $200 tax stamp.
Among the illegally constructed suppressors that can be found readily on the internet, the most common is advertised for use as a solvent trap. The idea has been popularized by Cadiz Gun Works, which sells a legal version of the device called the “Econo Can.”
For $75, Cadiz offers a serialized adaptor that allows an oil filter to be threaded onto a firearm making a surprisingly effective suppressor. The owner simply shoots through the bottom of the filter and they are in business. Currently, the oil filter is considered part of the suppressor and must be serialized to the adaptor making it one unit. When it burns out, it must be returned to Cadiz for replacement at a modest charge. They can be contacted at (740) 942-3175.
A cottage industry has grown up selling unregistered adaptors, threaded to match several different size oil filters (although ¾ – 16 seems to be the most prolific) via mass-marketing institutions like eBay and Amazon. These parts, which usually sell for between $10 and $30, are sold as a way to avoid messes caused by cleaning solutions running out of the bore. As such, they are for cleaning and legal to sell for that purpose. Ownership, on the other hand is a murkier area.
Internet chat rooms are full of discussions regarding solvent trap adapters and tongue-in-cheek references to having “accidentally” shot through them while cleaning. Images abound of oil filters secured to firearms, all presumably being used to catch solvents as they run from the bore. Even Ruger 10/22 rifles, which cannot be cleaned from the breech without modification, are shown with these solvent traps in place. The question of when a solvent trap becomes a suppressor is one that should be considered carefully by a would-be purchaser. The answer is probably less concrete than they have been led to believe.
There can be no doubt that a solvent trap has become a suppressor once a bullet has been fired through it, but that is only a bright line action that could lead to prosecution. The most likely event leading to prosecution, which is what happened in U.S. v. Michael Crooker, is that an item that could be used as a silencer or silencer parts are found as part of another investigation and those charges are piled on by the prosecution.
In Crooker, who was under investigation for shipping chemicals illegally, a suppressor was discovered via an controlled mail drop. Even though the device was intended for use with a pellet rifle, prosecutors added the NFA violation because they believed it could be adapted to suppress a firearm. On appeal, the court found that the suppressor was not “for” that purpose, and was not readily adaptable to a firearm. Even though this was a victory for Crooker, he had spent years in prison awaiting his appeal.
The ruling on the issue is telling and directly affects anyone who possesses an oil trap or other type of potentially improvised suppressor:
“But where, as here, the device was created for a different use-to silence an airgun-and requires some modification or adaptation to fit a firearm, problems arise in two different dimensions: its capability for use as a silencer and, separately, the defendant’s knowledge, purpose or both with respect to the device.”
They continue adding:
“We conclude, however, that the statute by its terms requires something more than a potential for adaptation and knowledge of it. The statute does not refer either to capability or adaptation; it speaks of a device “for” silencing or muffling. The ordinary connotation of the word is one of purpose. See The Random House Dictionary of the English Language 747 (2d ed. unabr.1987) (providing a first definition of “for” as “with the object or purpose of”).”
Now they reference other objects that stand for other purposes:
“But even if “for” were read as the government urges-which is perhaps possible as a matter of language (as in “a stone may serve for a hammer”)-the airgun silencer in this case required a further “part” (the adapter), arguably making the case fall within one of the “parts” definitions that require intent. Worse still for the government, the use of a “capability” and “knowledge” definition-as applied to a home-made silencer-could also extend to a soda bottle or even a potato. The peculiar problem of silencers is that many objects, including relatively innocent ones, have some capacity to muffle the sound of a shot.
Conversely, the fact that a possessor does have a purpose to use, or to pass on the device to someone to use, as a silencer for a firearm increases the danger of such a use and makes it precisely the threat against which the statute means to guard. ”
It is the final conclusion that should hold the attention of anyone who intends to have a solvent trap and adapter on hand as a suppressor in case of societal breakdown and are feeling secure from prosecution because it has never been used:
He deliberately skated close to the edge of the law and took his chances with a prosecution that the government was entitled to attempt.
The lesson is simple: if a Federal prosecutor believes you have the components of a suppressor, the knowledge to construct it and the intent to do so at some later point, they may elect to prosecute you. You will then have to defend, at great cost, something that could have been purchased legally for less than $300.
The other common type of suppressor supported by Internet component sales uses the body of a Maglite C or D cell flashlight. This type of suppressor is a very good option for a home-built suppressor and is commonly made on a Form 1. Since the flashlight tubes are already serialized and threaded, it is great base to begin making a legal suppressor.
The slippery slope here is that all of the components are available for sale without regard to whether they are going into a Form 1 build or are going to become an illegal silencer. To their credit, some of the sellers offer up their components and instruction as part of a Form 1 homebuilt product and, in fact, create a very workable suppressor. Others offer their products as another, less conceivable, version of the solvent trap. The implication is that as long a no furthering steps are taken with the parts, there is no risk of prosecution.
This type of suppressor is made with two milled parts that replace the endcap and lens cap portion of a larger Maglite. One is tapped to receive a threaded firearm’s barrel, the lens cap replacement is a solid piece that screws on to the existing external threads and must be drilled open by the owner to complete the build. Freeze plugs, which are designed for use in cars, are then used as baffles.
In this case, freeze plugs enjoy a special status with the BATFE, which specifically names drilled-through freeze plugs as parts of a silencer:
“Another example of parts redesigned and intended for use in assembling or fabricating a firearm silencer are automotive engine freeze plugs that have been modified by drilling a hole through their center to permit passage of a bullet.” atf-p-5320-8-chapter-2
Since a drilled-through freeze plug could no longer be used for it intended purpose in an automobile, BATFE freely assumes the only reason to possess one would be to use it as a baffle in a suppressor. If that suppressor is unregistered, its possession is a Federal felony.
It is tempting to feel that owning the parts of a suppressor without actually assembling them is a safe alternative to submitting forms to the Federal government and undergoing enhanced scrutiny. I know several prepper’s who have chosen this option, feeling that they have complied with the letter, if not the spirit of the law. In doing so they overlook the broadness of prosecutorial discretion and the legal fact that their intent and abilities will be considered as part of the decision to prosecute.
If Federal investigators were to find you possession of a Maglite flashlight, expansion plugs that fit a 1993 Buick Century (with no car of that type in your history) a jig to center holes in the plugs and the manufactured endcaps that were legally sold to you online, you will most likely be charged with owning an unregistered silencer and face felony prosecution.
Your defense attorney, whose hourly wage will approximate the cost of the Federal Tax Stamp for a suppressor will probably try to explain that it was a solvent trap, even if you browser history and book collection show an interest in suppressors. You may find a sympathetic jury who agrees that you did not commit a crime, but the damage will have been done. You will certainly be out more than the cost of a legally owned suppressor. This tempting and easy route to obtaining a silencer can prove extremely costly in the end. Silencer-caselaw