ATF Binary Exploding Targets ruling BATFE

[ptoguy2002]

OK, lets look at this objectively:

-Use of Tannerite on Top Shot (or any other show) means nothing. They have lots of other stuff on that show that requires a LOT of paperwork to have / do. Mentioning that is irrelevant here.

-SouthCoastTargets does have a letter from Tannerite's lawyer with him in his booth. I've seen it and read it. It lays out their legal argument on why it is legal. They have claimed to send this to DOJ, from which they received no response. AFAIK, this letter hasn't been made public.

-Tannerite's legal argument comes down to whether the reaction is endothermic or exothermic (...release of gas AND heat...). Nobody can comment on the validity of that argument unless Tannerite releases the reaction (IE: 2 H2 + O2 → 2 H2O + E) and/or test data to back it up. This is part of the problem, IMHO, Tannerite says it is legal, but provides NOTHING to BACK IT UP. Attorney's generally are not chemists, so that legal letter means nothing without technical information to back up the legal letter.

-Tannerite advertises their targets as "Exploding Targets" per the attached photo. They also recognize that once mixed, it becomes an explosive as it under DOT rules. It looks like an explosive, acts like an explosive, and is explicitly advertised as an explosive, what are people (like the DA) supposed to think, that it actually isn't an explosive?

-As it stands, IF Tannerite's claims are correct (which is impossible for any third party to verify at this point), It MAY be technically legal, but you are going to spend a lot of money on attorney's proving it. And whether or not the jury believes you is going to come down to:
....1) The DA saying: "If it talks like a duck, quakes like a duck, and walks like a duck, it is a duck and you must convict.
....2) Your scientific "expert" trying to explain the science behind why it really isn't a duck.
Keep in mind your jury will be composed generally of people who are the impressionable, slighly more gullible type, and aren't independent thinkers or highly educated.

-One other thing to keep in mind, trying to remain objective, is that Tannerite is not the stuff you commonly see on videos where you get a huge fire ball. SouthCoastTargets had pointed out, those are not Tannerite, but other peoples products that obviously release heat.

-IMHO: I have a hard time believing that Tannerite doesn't release heat. It obviously releases energy. Considering energy, energy states, heat, combustion, expanding gases, etc.. in a closed system, Tannerite is playing semantics. These semantics can just as easily be reversed to be used against you.

[jlbflyboy172]

[QUOTE=Maddog5150;8679997]at such a low post count, he obviously doesnt know the amount of work you and the calguns foundation have put in to inform us and fight for us

I know there are many that work hard for CA gun owners to help move laws in the right direction and inform us. But just because a person has a high post count does not make them immune to spreading false information or any more knowledgable than anyone else. Post count or lack thereof is not a measure of knowledge or understanding.

[jlbflyboy172]

I'm going to throw my $.02 in and say that I've used Tannerite, I was told it is not flammable, I stuck a can in the back of a zombie bleeding target, shot it with a 30.06 at about 150 yards, target blew up in a ball of fire. Putting out the fire from the fragmented burning pieces was a PITA, glad it wasn't windy.
Since there were multiple fragmented pieces of burning material from the zombie target, it is readily apparent that it wasn't just the lead bullet hitting the metal lid of the tannerite that sparked a fire or some other such nonsense.

I beg to differ that it does not produce "a rapid release of gas and heat" and is, therefore, legal on that basis.

You clearly used it outside of the instructions for intended use that come with the product. If you have watched the video on it you will see that it will not catch fire and is no incendiary. Your mixing with other targets caused that not the Tannerite. I have shot it several times as per the instructions without incident.

[tenpercentfirearms]

Here is how this is going to go down for the Tannerite users. You are going to get popped on a traffic stop or have some other law enforcement interaction where they want to bust you for something. You being a law abiding citizen are not going to give them anything to get you on, until they find your Tannerite. Then they are going to go for that, especially since you will be defending yourself from a felony, which to a gun owner is as good as life in prison.

That is why my shop and I do not mess with Tannerite. Tannerite is the tracer round you need to throw in the garbage. They search for anything to bust you on and they get a tracer round or your bottles of Tannerite.

Is it really worth that risk? You must make that decision.

[Clownpuncher]

Tannerite is an exploding target that creates an endothermic reaction (I.E cold reaction), meaning that there is no heat caused from the reaction of the two chemicals, in order for something to be an explosive in the State of California it must create a "Rapid release of gas and heat" since Tannerite creates no heat this code DOES NOT APPLY!!!!!

I'm going to throw my $.02 in and say that I've used Tannerite, I was told it is not flammable, I stuck a can in the back of a zombie bleeding target, shot it with a 30.06 at about 150 yards, target blew up in a ball of fire. Putting out the fire from the fragmented burning pieces was a PITA, glad it wasn't windy.
Since there were multiple fragmented pieces of burning material from the zombie target, it is readily apparent that it wasn't just the lead bullet hitting the metal lid of the tannerite that sparked a fire or some other such nonsense.

I beg to differ that it does not produce "a rapid release of gas and heat" and is, therefore, legal on that basis.

[ubet]

Here's the Penal Code section that says possession of an explosive or combination of substances with the intent to make an explosive is a felony...



and here's the section that defines "explosive" as mentioned in CPC 18720...

Well from those definitions gun powder, primers and bullets should all be illegal too then. They all cause an explosion.

[Capybara]

Shows like Top Shot have a certified armorer on set, providing all guns and explosives. That's why they can shoot Glocks with 17 round mags and full auto Thompsons too.

i too have wondered about if they use Tannerite on Top Shot because so many of their exploding targets result in fire and flames, the target stand burning after the explosion. I thought Tannerite would not do that?

[IntoForever]

This picture has new meaning in the last couple weeks:

One stop felony shopping, even if Tannerite is legal in CA.

DO NOT PURCHASE, SELL, STORE, MIX OR USE TANNERITE IN CALIFORNIA.

Is this clear enough?

-Brandon

Good enough for me to keep buying cases of soda to shoot until I see a court precedence.

Also, Top Shot uses it. And no just because they have a TV show doesn't necessarily give them the right to break the law and if it sold all over the state I seriously doubt that they got the permits solely for tannerite.

So much FUD in this post! Trust me, they have all their permits lined up. For a $200 permit they are not going to screw around and you need one for:
A) Manufacture
B) Importer
C) Dealer
D) User ($100)
and a temporary one is available for $25. Renewals are half the original rate.
BATFE explosives permit

[wildhawker]

TANNERITE IS 100% Legal in all 50 states.

So where's Tannerite's legal analysis? I mean one done by competent counsel, backed with professional liability insurance.

now i can only speak for "name brand" Tannerite (full disclosure: i am the Tannerite dealer in the photo

Great, I'll suggest you be deposed by counsel for facts going to your customers' reliance on your advice and marketing information.

also, i want to see some links to the supposed Tannerite arrests in CA. i have been searching for them and asking calguns members to supply me with those so i can follow up on them, and i have not received those. it would be greatly appreciated if somebody could.

Are you or are you not willing to pay for your customers' legal bills for arrests and prosecutions stemming from their use of the product in accordance with the manufacturer's stated purpose?

i should also add that i am not a lawyer, blah, blah, blah

It was pretty evident, but thanks for clarifying for the record.

-Brandon

[stix213]

TANNERITE IS 100% Legal in all 50 states. it is a complicated subject and due to years of misinformation at all levels of the shooting world (including LEOs), there is rampant confusion on the issue within the state. here is the why and how:

now i can only speak for "name brand" Tannerite (full disclosure: i am the Tannerite dealer in the photo that is in this thread who has an ice cream cone for a head, for the record i have no association with the Mag Magnet people, just happened to be the "Luck of the Draw" on their table being set up next to mine.), other targets like Star, sure shot, in the red, and shockwave are made from a different recipe and i cannot vouch for their legality.

STATE LAW:

health and safety code 12000 states: For the purposes of this part, "explosives" means any
substance, or combination of substances, the primary or common
purpose of which is detonation or rapid combustion, and which is
capable of a relatively instantaneous or rapid release of gas and
heat, or any substance, the primary purpose of which, when combined
with others, is to form a substance capable of a relatively
instantaneous or rapid release of gas and heat.

Tannerite is an exploding target that creates an endothermic reaction (I.E cold reaction), meaning that there is no heat caused from the reaction of the two chemicals, in order for something to be an explosive in the State of California it must create a "Rapid release of gas and heat" since Tannerite creates no heat this code DOES NOT APPLY!!!!!

PC 12301 subsection B which lists "Destructive devices" states: (b) The term "explosive," as used in this chapter, shall mean any explosive defined in Section 12000 of the Health and Safety Code.

Tannerite can not be labeled a "destructive device" because in order for an explosive to be labeled that it has to meet the definition of an explosive under health and safety code 12000. which tannerite as stated above DOES NOT



BUT HERE IS THE KICKER!!!!!!!

None of these state laws matter, even if they applied (which they dont)!!!!! as the OP originally stated Tannerite once mixed is a FEDERALLY REGULATED EXPLOSIVE!!! that means that the ATF classification has federal preemption, meaning that the state cannot reclassify it as something else. The ATF regulates MIXED Tannerite as an exempted black powder for sporting purposes (except that tannerite is much more stable and safer than regular black powder). therefore there is only one state law that applies to Tannerite and that is the exempted black powder possession limit which in the state of CA is 1 pound. Meaning that you can only have up to 1 LB. of Mixed Tannerite in your possession at any given time.


now there are still many ways to get into legal trouble with Tannerite, just like there are many ways to get in trouble with your guns:

-Land use laws
-Noise Ordinances
-storing it mixed
-transporting it mixed
-littering (blowing up stuff like microwaves ETC.)

So if you plan on using Tannerite, please do your homework, have a safe spot that you can shoot it at, and for the love of god please dont be an idiot with it. Remember if you have more questions you can call the company at 541-744-1406, and ask for Dan Tanner. Dan is the man when it comes to anything related to the laws regarding his products, although fair warning, this time of year he is super busy getting ready for the 4th of july, because the other half of his business is professional fireworks displays. feel free to PM me if you have any other questions or comments, so long as they are civil and in a none aggressive tone.

also, i want to see some links to the supposed Tannerite arrests in CA. i have been searching for them and asking calguns members to supply me with those so i can follow up on them, and i have not received those. it would be greatly appreciated if somebody could.

i should also add that i am not a lawyer, blah, blah, blah, you know the drill

Um it is a destructive device because it qualifies as "chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction" which is separate from and not dependent on the "explosive" definition connected to the health and safety code, and notice there is no requirement of "heat" to qualify as a DD there, is just needs to explode via a chemical reaction (endothermic reaction is a form of chemical reaction), which for some reason you are completely ignoring.

Please counter each one of these arguments if you disagree: (notice Bill points out that having the components not even mixed if there is intention of ever mixing them in the future is it's own felony, meaning even if your federal preemption theory is valid, you can still get busted while just driving on the freeway with it unmixed, or maybe you didn't have 100% of your stuff mixed when you get the LEO encounter, and then lose your gun rights across all 50 states for life with your felony conviction.)

http://www.calguns.net/calgunforum/showthread.php?t=62011

{extracted from another post, really more relevant here }

Tannerite keeps rearing its ugly head on these forums. Tannerite is a (purportedly Federally legal) compound that makes big booms.

I note no legal material quoted by Tannerite deals with California legal issues. And Tannerite is from an Oregon dude who probably has no idea of our laws & restrictions.

I'm pretty confident that anything that goes boom, with some notable exceptions for 'safe & sane' fireworks and gunpowder for reloading, is most likely a no-no. Hell, CA even bans putting dry ice and water in a bottle as an explosive device!

Here's the relevant Penal Code stuff - look at underlined/bolded areas:

12301PC (a) The term "destructive device," as used in this chapter, shall include any of the following weapons:

(1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.

(2) Any bomb, grenade, explosive missile, or similar device or any launching device therefor.

(3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore).... {snipped as not relevant to Tannerite issue}

(4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, {...snip...} except those devices as are designed primarily for emergency or distress signaling purposes.

(5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.

(6) Any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.

(b) The term "explosive," as used in this chapter, shall mean any explosive defined in Section 12000 of the Health and Safety Code.

So CA Penal code sec. 12301(a)(6) would readily describe any combinations of chemicals in a container, producing a large amount of gas/heat in a very short time span, as a 'destructive device'. Perhaps if it were an open container that might help - but if you were popped after the explosion, it gets hairy.

CA 12303PC sets up general prohibitions for possession of destructive devices:

12303PC Any person, firm, or corporation who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the county jail for a term not to exceed one year, or in state prison, or by a fine not to exceed ten thousand dollars ($10,000) or by both such fine and imprisonment.

We have some 'escalator' penalties for transportation - could include driving your Tannerite around in certain situations:

12303PC. Every person who willfully does any of the following is guilty of a felony and is punishable by imprisonment in the state prison for two, four, or six years:

(a) Carries any explosive or destructive device on any vessel, aircraft, car, or other vehicle that transports passengers for hire.
(b) Places or carries any explosive or destructive device, while on board any such vessel, aircraft, car or other vehicle, in any hand baggage, roll, or other container.
(c) Places any explosive or destructive device in any baggage which is later checked with any common carrier.

Plus, there's reduced wiggle room in court:

12311PC. No person convicted of a violation of this chapter shall be granted probation, and the execution of the sentence imposed upon such person shall not be suspended by the court.

Finally, we have treatment of "constructive possession" of the precursor compounds:

12312PC. Every person who possesses any substance, material, or any combination of substances or materials, with the intent to make any destructive device or any explosive without first obtaining a valid permit to make such destructive device or explosive, is guilty of a felony, and is punishable by imprisonment in the state prison for two, three, or four years.

Thus, having unmixed Tannerite precursor binary components is likely just as bad an offense as actually having mixed Tannerite!

Y'all've been warned.

From my reading of it, your customers can be busted on felony charges when they take 1 step away from your booth after making a purchase, while you may be safe behind the counter since you personally aren't intending on mixing it. All a cop would have to say to establish intent to mix them is, "hey, is that that cool tannerite stuff? Hey, when you mix that you're going to make sure you go way out into the desert where it is safe right?" and then bam customer talks themselves into a felony just by answering "yep that's my plan."

A lack of injuries from this product so far is probably the only reason there hasn't been a crack down. I'm not a lawyer either, so why do I know more about this than the guy selling it? (answer: I spend way too much time here)

[SouthCoastTargets]

TANNERITE IS 100% Legal in all 50 states. it is a complicated subject and due to years of misinformation at all levels of the shooting world (including LEOs), there is rampant confusion on the issue within the state. here is the why and how:

now i can only speak for "name brand" Tannerite (full disclosure: i am the Tannerite dealer in the photo that is in this thread who has an ice cream cone for a head, for the record i have no association with the Mag Magnet people, just happened to be the "Luck of the Draw" on their table being set up next to mine.), other targets like Star, sure shot, in the red, and shockwave are made from a different recipe and i cannot vouch for their legality.

STATE LAW:

health and safety code 12000 states: For the purposes of this part, "explosives" means any
substance, or combination of substances, the primary or common
purpose of which is detonation or rapid combustion, and which is
capable of a relatively instantaneous or rapid release of gas and
heat, or any substance, the primary purpose of which, when combined
with others, is to form a substance capable of a relatively
instantaneous or rapid release of gas and heat.

Tannerite is an exploding target that creates an endothermic reaction (I.E cold reaction), meaning that there is no heat caused from the reaction of the two chemicals, in order for something to be an explosive in the State of California it must create a "Rapid release of gas and heat" since Tannerite creates no heat this code DOES NOT APPLY!!!!!

PC 12301 subsection B which lists "Destructive devices" states: (b) The term "explosive," as used in this chapter, shall mean any explosive defined in Section 12000 of the Health and Safety Code.

Tannerite can not be labeled a "destructive device" because in order for an explosive to be labeled that it has to meet the definition of an explosive under health and safety code 12000. which tannerite as stated above DOES NOT



BUT HERE IS THE KICKER!!!!!!!

None of these state laws matter, even if they applied (which they dont)!!!!! as the OP originally stated Tannerite once mixed is a FEDERALLY REGULATED EXPLOSIVE!!! that means that the ATF classification has federal preemption, meaning that the state cannot reclassify it as something else. The ATF regulates MIXED Tannerite as an exempted black powder for sporting purposes (except that tannerite is much more stable and safer than regular black powder). therefore there is only one state law that applies to Tannerite and that is the exempted black powder possession limit which in the state of CA is 1 pound. Meaning that you can only have up to 1 LB. of Mixed Tannerite in your possession at any given time.


now there are still many ways to get into legal trouble with Tannerite, just like there are many ways to get in trouble with your guns:

-Land use laws
-Noise Ordinances
-storing it mixed
-transporting it mixed
-littering (blowing up stuff like microwaves ETC.)

So if you plan on using Tannerite, please do your homework, have a safe spot that you can shoot it at, and for the love of god please dont be an idiot with it. Remember if you have more questions you can call the company at 541-744-1406, and ask for Dan Tanner. Dan is the man when it comes to anything related to the laws regarding his products, although fair warning, this time of year he is super busy getting ready for the 4th of july, because the other half of his business is professional fireworks displays. feel free to PM me if you have any other questions or comments, so long as they are civil and in a none aggressive tone.

also, i want to see some links to the supposed Tannerite arrests in CA. i have been searching for them and asking calguns members to supply me with those so i can follow up on them, and i have not received those. it would be greatly appreciated if somebody could.

i should also add that i am not a lawyer, blah, blah, blah, you know the drill

[Maddog5150]

Or, maybe, some of us don't want to see otherwise law-abiding California gun owners in jail.

-Brandon

at such a low post count, he obviously doesnt know the amount of work you and the calguns foundation have put in to inform us and fight for us

Doesnt make any sense. What about gun powder, that's not illegal.

neither is cannon fuse but buy a jug of powder, put a hole in the lid and insert cannon fuse and see where that lands you.

[SocomM4]

Doesnt make any sense. What about gun powder, that's not illegal.

[tyrist]

Do I need a need a valid permit for all that ammo I might have just lost a boat?
It might have been explosive?

Fixed ammunition is specifically exempt unless it's of a caliber .60 or greater.

[jj805]

Haha yeah. But for the sake of argument lets say you stuck the Spark Plug into the full Gas can, then remotely set it off with an electrical source and some wire?
Gotcha! a "device" was created and used in an un-kosher like fashion.
Go to Jail, do not collect $200....

For the sake of argument, if you stick a spark plug into a full gas can, and set it off, it will not go boom. Not enough oxygen.

I understand what you are saying, it's just frustrating that the CADOJ won't give an opinion on something that is commonly used. It is also frustrating that holes can easily be blown through existing laws because of their vagueness. Gasoline requires no permit to obtain, but it falls into their definition of an explosive. Are they going to charge everybody that owns a lawnmower with a felony?