Thread: "rain cover"
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Old 12-10-2012, 12:14 PM   #174 (permalink)
Justus
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Quote:
Originally Posted by DocsMachine View Post
-Here's where you're having a problem. There's also no law that specifically allows a paintball silencer.
But there's no law that allows me to own a pencil either, right? I mean, I can see why you want to take the practical stance of "until it's deemed allowable, it's trouble", but that doesn't mean it's illegal.

Quote:
Originally Posted by DocsMachine View Post
And since, as far as the ATF is concerned, there's no functional difference between a paintball silencer and a firearms silencer, apart from some currently still extremely murky regulations of "intent", there is still no way to own a paintball silencer without also risking possessing a firearms silencer.
As far as the ATF was concerned. Crooker should have changed that.

But yeah, possessing a paintball gun silencer is still going to subject a person to a risk of having it misidentified as a firearms silencer. But, this is no different than someone having a shrouded/modded Tippmann A5 sitting in their back seat and having it mistaken for real steel.

Quote:
Originally Posted by DocsMachine View Post
Again, Crooker "suggested" that that part of the law be changed, but it has not yet been changed.
Crooker said the current law doesn't apply, and then "suggested" that it be changed so that it would actually apply to paintball gun silencers. The "suggested" change is not in our favor.

Quote:
Originally Posted by DocsMachine View Post
Essentially, you're reading the finding as being a blanket 'okay' to own a paintball silencer, as long as you never intend to try to adapt it to a firearm, (<< yep, with the bold changes) and I don't agree with that. It remains my opinion that until the actual law has been changed, or the ATF themselves issues an official statement, the ATF is still going to consider even a paintball silencer as illegal.
The ATF doesn't make the laws though. They're a division of the Executive branch, tasked with enforcing the law. The Judicial branch is tasked with interpreting the law, and the Legislature makes the laws. In this case, the Legislature made a law - the ATF arrested Crooker using the law - and then the Judiciary said "no, that law can't apply to a silencer for a paintball gun. You want it to apply, then go back to the Legislature and make a new law."

I don't disagree, though, that the ATF may still take enforcement policies of arrest first and ask questions later. That happens all the time before charges are dismissed in tons of other criminal cases.

So, could the ATF just take the Crooker decision and then start charging everyone with paintball gun silencers by accusing them of having the intent to adapt them for firearm use? Yeah, I guess they could. I mean, heck, when Joe Lotsasplatter is driving to the Gulp N' Blow he could swerve to miss hitting a squirrel, and if there's a pedestrian nearby he could be pulled over and charged with attempted vehicular manslaughter. But that doesn't mean that he should stop driving because of the risk of being falsely accused.


Quote:
Originally Posted by DocsMachine View Post
And considering the risks- even if you win, you'll have to spend tens of thousands defending yourself- at the moment we need to wait until- and if- we get that statement or get the law changed.
That's the same with any criminal statute, though. I could mistakenly walk into a bank during the course of a robbery, right when a guard is shot and killed, and then be falsely charged with felony murder. That might also take tens of thousands of dollars to defend. That doesn't stop me from going into banks to conduct business, though, because I know that walking into a bank to do business is a legal activity.

Quote:
Originally Posted by DocsMachine View Post
But as above, the safest route is to wait. If we're lucky, JCurt will hear back with an unambiguous statement from the ATF. It'd be nice if it were unambiguously "they're okay, knock yourselves out", but it'll probably be unambiguously "no, we still consider them illegal until a post-Crooker amendment to the law can be drafted and ratified".
That's practical, no disagreement there.

Quote:
Originally Posted by DocsMachine
...
Now, how would Joe use Crooker to keep from being charged with possession of an unregistered firearms silencer?
Joe would present the case to the U.S. Attorney before being charged. Absent any evidence that Joe intended to modify the tube to be used on a firearm, if the U.S. Attorney proceeds with the indictment process and disregards Crooker, then he/she may be subject to a lawsuit for malicious prosecution. Either way, the proposed charges will be sent to a grand jury to decide whether or not Joe will actually be charged. Joe would then present the case to the grand jury. If the grand jury disregards Crooker, then Joe is charged. His next step is to file a Motion to Dismiss, citing Crooker. If that fails, then a trial will be held and Joe will use the Crooker ruling in his defense.

Quote:
Originally Posted by DocsMachine
Better still, how would Joe use Crooker to keep from being arrested in the first place?
Won't happen, unless the arresting officer knows of the case and the new, more narrow interpretation of the current statute.
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