BATF on when 37mm Launchers become Destructive Devices

[Edd]

[ATF Ruling 95-3]

18 U.S.C. section 921(a)(4); DESTRUCTIVE DEVICE 26 U.S.C.
section 5845(f)(2); DESTRUCTIVE DEVICE (Firearm having a bore of
more than one-half inch in diameter)

37/38 mm gas/flare guns possessed with cartridges containing
wood pellets, rubber pellets or balls, or bean bags are classified
as destructive devices for purposes of the Gun Control Act, 18
U.S.C. Chapter 44, and the National Firearms Act, 26 U.S.C. Chapter
53.

ATF Ruling 95-3

The Bureau of Alcohol, Tobacco and Firearms (ATF) has examined
various 37/38 mm gas/flare guns in combination with certain types
of ammunition to determine whether these are destructive devices as
defined in the Gun Control Act (GCA), 18 U.S.C. Chapter 44, and the
National Firearms Act (NFA), 26 U.S.C. Chapter 53.

Section 5845(f), Title 26, United States Code, classifies
certain weapons as "destructive devices" which are subject to the
registration and tax provisions of the National Firearms Act (NFA).
Section 5845(f)(2) provides as follows:

(f) Destructive device. --The term "destructive device" means
* * * (2) any type of weapon by whatever name known which will, or
which may be readily converted to, expel a projectile by the action
of an explosive or other propellant, the barrel or barrels of which
have a bore of more than one-half inch in diameter, except a
shotgun or shotgun shell which the Secretary or his delegate finds
is generally recognized as particularly suitable for sporting
purposes . . .'

Section 5845(f)(3) excludes from the term "destructive device"
any device which is neither designed or redesigned for use as a
weapon and any device, although originally designed for use as a
weapon, which is redesigned for use as a signaling, pyrotechnic,
line throwing, safety, or similar device.

The definition of "destructive device" in the GCA (18 U.S.C.
section 921(a)(4)) is identical to that in the NFA.

ATF has previously held that devices designed for expelling
tear gas or pyrotechnic signals are not weapons and are exempt from
the destructive device definition. However, ammunition designed to
be used against individuals is available for these 37/38 mm
devices. This "anti-personnel" ammunition consists of cartridges
containing wood pellets, rubber pellets or balls, and bean bags.

When a gas/flare gun is possessed with "anti-personnel" type
ammunition, it clearly becomes an instrument of offensive or
defensive combat and is capable of use as a weapon. Since these
gas/flare guns have a bore diameter of greater than one-half inch,
fire a projectile by the means of an explosive, and, when possessed
with "anti-personnel" ammunition, are capable of use as weapons,
the combination of the gas/flare gun and "anti-personnel"
ammunition is a destructive device as defined in the GCA and NFA.
As a result, registration as a destructive device is required. Any
person possessing a gas/flare gun with which "anti-personnel"
ammunition will be used must register the making of a destructive
device prior to the acquisition of any "anti-personnel" ammunition.
In addition, the gas/flare guns are classified as firearms as
defined by the GCA when possessed with "anti-personnel" type
ammunition.

Each gas/flare gun possessed with anti-personnel ammunition
will be required to be identified as required by law and
regulations (27 C.F.R. section 178.92 and 179.102), including a
serial number. Any person manufacturing the gas/flare gun and the
"anti-personnel" ammunition must, if selling them in combination,
have the appropriate Federal firearms license as a manufacturer of
destructive devices and must have paid the special (occupational)
tax as a manufacturer of National Firearms Act firearms. Any person
importing the gas/flare gun and the "anti-personnel" ammunition
must, if importing them in combination, have the appropriate
Federal firearms license as an importer of destructive devices and
must have paid the special (occupational) tax as an importer of
National Firearms Act firearms.

Further, the "anti-personnel" ammunition to be used in the
gas/flare launchers is ammunition for destructive devices for
purposes of the GCA. Any person manufacturing the "anti-personnel"
ammunition must have the appropriate Federal firearms license as a
manufacturer of ammunition for destructive devices. Any person
importing the "anti-personnel" ammunition must have the appropriate
Federal firearms license as an importer of ammunition for
destructive devices.

HELD: 37/38 mm gas/flare guns possessed with "anti-personnel"
ammunition, consisting of cartridges containing wood pellets,
rubber pellets or balls, or bean bags, are destructive devices as
that term is used in 18 U.S.C. section 921(a)(4) and 26 U.S.C.
section 5845(f)(2).

[Dirty Harry]

Not surprising. I would expect the BATF to strictly construe the provisions of Section 5845 and the like so as not to grant anyone the benefit of the doubt. They're not likely to be laughing if you push the envelope to test the limits of the law.

I think staying ahead of them would likely require not only a thorough knowledge of the relevant statutes and regulations, but also a healthy imagination that a lot of bureaucrats do not possess. Having a Tom Hagen around never hurts.

DH