Attorney Question of the Month
This month, we wrap up a question about using legally possessed suppressors in self defense to which our Network Affiliated Attorneys provided so many responses that we were unable to run all of them in the January edition, which, if you missed it, you may wish to go back to review. Here is what we asked–
If I am the legal owner of a suppressor that is kept on my defense gun, and I use that suppressed firearm in self defense, what if any additional legal issues might I face in the aftermath? Are you aware of any self-defense cases in which use of a suppressor was a factor in either the charging decision or in court?
C. Dennis Brislawn, Jr., J.D.
Oseran Hahn, P.S.
Attn: Estate Planning Group
1430 Skyline Tower, 10900 NE 4th St., Bellevue, WA 98004
425-455-3900 x 105
Lawful possession of a silencer is a prerequisite to using one on a firearm. Lawful possession means the silencer is registered to an individual or entity in the (National Firearm Registration and Transfer Record), that a tax stamp was issued to the individual or entity by the ATF, that the silencer is possessed by that individual or a responsible person of the entity, and that possession is lawful in the given state.
When lawfully possessed, a silencer can be used for any lawful purpose including self defense. Therefore, using a silencer in lawful self defense should not create any unique issue. An issue DOES arise if the individual using it is NOT in lawful possession.
For example, consider a spouse who is NOT a Trustee on a gun trust that owns the silencer, using it in self defense in the home for example… What can go wrong? Looks like an unlawful transfer and unlawful possession under federal law. But what about State law that has an exception for temporary transfer to a spouse, its community property… ? Federal and state laws create their own separate issues. What could go wrong in this scenario?
If lawfully possessed, using a silencer in self-defense should not create an issue. Either self defense was lawful or not, and it’s the bullet launcher that creates injury. Consider that the reason that silencers are now lawful to use in Washington is in large part because law enforcement requested it. Using a firearm in a confined space is difficult and can result in hearing loss, as well as making it more difficult to employ the firearm. Silencers are sound mufflers. They exist for the purpose of reducing concussion and blast. A defense attorney can make a strong case that use of a silencer in self defense in a confined space enhances safe use and control of a firearm, especially when used for self defense in a home environment.
I am unaware of any cases on point although they may exist.
Timothy J. Priebe, Esq.
Priebe Law Firm, LLC
1465 Kelly Johnson Blvd., Ste. 200, Colorado Springs, CO 80920
Should you decide to have a suppressor (thank you for not calling it a “silencer“) attached to the firearm that you may use for self defense there are a few issues to take into consideration. First, I am assuming that the firearm will be used in your home. Carrying a suppressed firearm using either open carry or concealed carry would not be practical or a good idea tactically. So before I would advise someone to do so I would make sure that you are compliant with the suppressor. Federal law: Proper paperwork for the purchase, transfer, tax stamp, gun trust, etc. Have that documentation all together for easy accessibility if necessary. State law: You must live within one of the 42 states that allow possession of a suppressor. DO NOT USE ANYTHING OTHER THAN A LEGITIMATE AND LEGAL SUPPRESSOR. No gun cleaning solution traps, oil filters, gunsmith-via-Google, etc. All other self defense laws apply to you whether your firearm is suppressed or not.
Now, let’s talk real world. Let’s say that your shooting was thought not to be legitimate self defense and you are charged criminally. At some point in the trial, the DA will no doubt pick up your firearm to show the jury (and to get their picture in the paper). Do you want to have your black rifle, assault weapon, no other reason for ownership other than war, with all of the tactical bling hanging off it shown to the jury as your weapon of choice? Think about that versus a Mossberg shotgun from Wal Mart?
I am not saying for that reason alone you should not have your firearm suppressed. But to work around the situation above, I would make sure that you study and arrive at a legitimate reason for your choice. Document your reasoning. So should you take the stand, you will be prepared beforehand on why you made the choice that you did. You or perhaps an expert will have to educate the jury on the reason for your decision. Remember to probably most of your potential jurors a suppressor is only used in the movies by assassins so plan accordingly to educate them on the benefits of a suppressor.
Adam C. Russell
Criminal Defense Lawyer
309 Washington St., Brighton, MA 02135
The lawful use of a suppressor in the Commonwealth of Massachusetts does NOT automatically result in your being held. This answer is not a substitute for the advice of a qualified, licensed attorney.
The lawful use of a suppressor in the Commonwealth of Massachusetts is scary to less experienced prosecutors, law enforcement, less informed members of the Court. Part of the job of your lawyer is to inform the court of what a suppressor is and how one is lawfully owned. A skillful prosecutor may construe the use of suppressor as a factor for the court to consider at a “dangerousness“ hearing under G.L. c. 276, Section 58A. That hearing will determine whether or not you are held in jail all the way up to trial.
In a perfect world, your suppressor was purchased from an FFL and you have a copy of the tax stamp in your safe. If you made it yourself, then the statute can be used at the dangerousness hearing to show this was just another firearms enthusiast. It also can be used to argue responsible gun ownership.
Whether or not you are held for trial will depend upon the skill and preparation of your lawyer and your ability to post bail. Bail is an amount of money held by the Court to ensure that you will come back for the next court date.
Again, if you or a loved one is investigated for a crime, get a lawyer and don’t talk to the police.
Your Family Lawyer, LLC
2425 Post Road, Ste. 202, Southport, CT 06980
A silencer is great for keeping the sound to a level where your hearing won’t be damaged. I wish the discussion ended with that logic. Suppressors are fantastic devices. Unfortunately the discussion goes on. Note I am from one of the most restrictive states, one so restrictive that a lot of big firearms makers have left the state. (Thank you, Ruger for staying!)
Depending on the state, a silencer can be an item indicating excessive use of force with resultant confiscation of it and your threaded barreled weapon. Remember what is legal is not the question much anymore. The question is what will the prosecutor make of that. Justifiable can be hard to prove. Sometimes even in your own home. There are a lot of decisions that you make every time you practice, buy an accessory, even what type of ammunition that a prosecutor will try to make a part of the case to prove the defender’s evil intent. Self defense cases are a question of intent. Did you start the issue or was there another way out. Even in your home. Everything done to prepare and during the act and afterwards can become a part of what the prosecutor wants to present to show the defender is an evil person.
I even avoid rounds with deadly names, as though the name would mean anything to the lethality of the round! I know of no recent cases where there has been a question of what happened where every aspect of the defender’s shooting practices are not called into question. One of my favorites is when the prosecution makes a defender out to be this horrid person because of the names of the gun or holster!
If you practice all the time or never get to the range, shot hollow point, copper coated, frangible, even the name of the round may be used to show how evil the defender (you) are.
The same prosecutor who calls hollow point bullets the weapon of choice for maximum damage (ignoring the fact that you kept your rounds from going through the wall) will in the next case declare solid bullets to be similarly evil. Frangible used to stop slugs from penetrating walls can be characterized as being highly destructive to soft tissue and causing damage that cannot be treated.
I would be more concerned about knowing your rights to use a weapon in self defense as interpreted in your state. I use a revolver with escalating impact (.410 shot shifting to soft nose 45 long), and a 9 mm pistol loaded with hollow points, and I can imagine how that could be framed by a prosecutor. Your explanation, by the way, has to be based on knowledge you have at the time of the shooting.
My advice to clients is to keep it simple but effective. A standard 9 mm or .45 with standard charges (No +P) and know you will need to be in court if it happens, unless your sheriff or police are very understanding there seems to be just no way around that.
Shawn A. Kollie
Attorney at Law
DeKalb & Associates
40 NW Greenwood Ave. Suite 100, Bend, OR 97703
Under Oregon law a suppressor, if properly licensed as a Class III, has no better or worse consequences. It is perfectly lawful. Although the evidence of that suppressor could come into the jury, it is not overly relevant under Oregon’s evidence code and may be excluded. I have handled cases with other Class III firearms (short barreled, and full auto) but never a suppressor case. I see no reason why there should be legal consequences for perfectly lawful self defense and/or possession.
Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., PO Box 31, Meridian, ID 83680
I have no personal knowledge of an enhanced penalty for use of a legally obtained silencer in a self defense case. I can think of no rationale that would support additional penalties for use of a silencer - your verbal warnings would come before you shoot anyway, so the volume of the gun seems to make no difference to any notice the criminal would have before you toast his hide.
Kim W. Hansen, Esq.
1700 W Katella Ave, Ste. 200, Orange, CA 92867
While I can’t speak for jurisdictions outside of California, merely possessing a silencer in California is a felony. See California Penal Code Section 33410. Any person, firm, or corporation who within this state possesses a silencer is guilty of a felony and upon conviction thereof shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 or by a fine not to exceed ten thousand dollars ($10,000), or by both that fine and imprisonment.
A big “Thank you!” to all of the Network Affiliated Attorneys who contributed such interesting responses to this question. Please return next month when we’ll have a new question to ask our Network Affiliated Attorneys.
To read more of this month's journal, please click here.