Rare Breed Triggers Explained
"Rare breed triggers" is a term of art that is used to describe a very particular subset of forced reset trigger designs. Accordingly, the term refers to a particular design used on forced reset triggers and does not refer to any particular firearm, or even specific firearm type. As has been discussed previously, a "forced reset trigger" is a firearm component that has been designed to change the manner in which a firearm is fired. By allowing for repeated "bump firing" of a firearm without the need to again pull the trigger the use of such devices has the potential to drastically alter the rate of fire of a firearm when installed. However, even more troubling, especially at the state level, is whether the use of such a device renders a firearm illegal by causing it to fire in a manner analogous to a machinegun. That is, while a single pull of the trigger (and hold) on most firearms results in a single discharge of a bullet, a light quick pull of the trigger on certain of these triggers will quickly cause multiple rounds to be fired in rapid succession, much like a machinegun. The myriad of issues this raises, arguably, leads to such a triggering system being in violation of state and Federal law. The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") has had a long history of guidance on so-called forced reset triggers: In 1999, ATF issued an open letter declaring that "the use of forced reset triggers violates the Gun Control Act and the National Firearms Act (NFA), and they are subject to the registration and tax provisions of the NFA." ATF has further refined this message in guidance letters from November 4, 2018, December 5, 2019, and August 21, 2020. From 1999 through 2020, ATF was widely understood to mean that the entire trigger assembly components were considered to convert title I firearms into title II NFA weapons. Specifically, ATF has stated: In 2021, ATF’s enforcement became more proactive when the Bureau ruled to reclassify many popular forced reset triggers as regulated under the National Firearms Act (NFA). On April 8, 2021, ATF published an "Open Letter to All Class 2, 3, and 4 Federal Firearms Licensees Obtaining Forced Reset Trigger Devices" that discusses ATF’s interpretation. The Open Letter states the Bureau’s position that two specific models , Rare Breed’s FRT-15 and Slidefire’s SSAR-15, are "machineguns" as defined under the NFA. In addition, it caused at least three retail platforms to cease sale of these items, including Optics Planet, Midway USA, and Brownells. In short, as to the Rare Breed FRT-15, ATF found that, …[i]t makes a semiautomatic weapon function as if it were a machinegun. More specifically, once the trigger is pulled, this device continues to allow the weapon to fire repeatedly as long as the trigger housing assembly remains partially open by way of the force of recoil. Therefore, the Rare Breed FRT-15 trigger, when assembled with a semiautomatic weapon, is a machinegun as defined by the NFA. This is an interesting development over ATF’s historic approach. The initial understanding, based on ATF’s 1999 Open Letter, is that removal of the trigger from the weapon less the semiautomatic trigger linkage, returned the firearm to a status as a "semiautomatic weapon," rather than as a "machinegun." Specifically, ATF advised in its 1999 letter: Since the [forced reset trigger] trigger does not function when removed from the fire control assembly of the semiautomatic weapon, recoil to operate the weapon firing mechanism will not be possible and will result in the weapon losing its status as a semiautomatic weapon. Therefore, the [forced reset trigger] trigger device would not be subject to the registration and tax provisions of the National Firearms Act if removed from the fire control assembly of a semiautomatic weapon. However, once the device is placed back into the fire control housing of the semiautomatic weapon, it again becomes subject to the registration and tax provisions of the National Firearms Act. Now, ATF appears to be taking a different interpretation. According to the Bureau, a semiautomatic firearm is only lawful when a semiautomatic trigger is installed in the weapon housing. In this view, a forced reset trigger replaces a semiautomatic trigger, and thereby does not take it out of NFA regulation. The significance of this issue cannot be understated: Priced at $350-$500 per trigger, these systems are big business for Rare Breed Triggers. As much as $10.5 million in sales have been reported. In addition, attorneys have estimated that defense costs for owners facing criminal prosecution could be in excess of several hundred thousand dollars.
Recent Decisions Involving Rare Breed Triggers
Additional cases have been filed challenging those insurers that sold polices with rare breed trigger language, and many of those cases have been resolved in the policyholder’s favor. The use of rare breed trigger language in the Comprehensive General Liability policies has become the defendant’s leading defense strategy. Indeed, trial courts across the country have consistently ruled against the use of rare breed trigger language, seeing it as an illusory promise to provide coverage. The courts have concentrated on the fact that the "courts interpreting the availability of claims-made coverage have focused on construing the ‘claims made’ language at the point of sale." Cath. Charities of the Archdiocese of N.O. v. Certain Underwriters at Lloyd’s Londong, 708 F.3d 715 (5th Cir. 2013). Nevertheless, some defendant insurers have continued to litigate, and have fared little better in recent years.
In 2015, the Superior Court of Connecticut in Watch Hill Condo. Ass’n Inc. v. Travelers Prop. Cas. Ins. Co., 2015 WL 1508442 (Conn. Super. Ct. Apr. 2, 2015) dealt with a condo association’s standard CGL policy that covered "sudden or unexpected" occurrences. The insurer argued that because mold is slow growing and gradual, mold damage does not fall within the scope of the insurance policy. Id. at *3. The court disagreed, holding that "[t]here can surely be an occurrence even though the policy contains a slowly progressive trigger." Id. The court noted that "under Connecticut law, an ‘accident’ may be ‘sudden or unexpected’ even if it occurs over a long period of time, so long as it is not ‘deliberate or intended by the insured.’ An insurer cannot avoid paying benefits by asserting that a slow releasing toxic substance is not necessarily unexpected to the insured." Id. at 15. In order to bar recovery altogether, the defendant must show either: (1) in addition to an unexpected release, the "harm caused was expected or intended"; or (2) "an unexpected release occurred but repair or replacement to remedy the harm was negligently rendered." Id. at 29.
The Illinois Appellate Court in Highland Park Condominium Assoc. v. Travelers Casualty Insurance Co. of America, 46 N.E.3d 984 (Ill. App. Ct. 2015) examined rare breed language in an insurance policy that read "damages arising out of…" which was modified by a schedule noting: "Occurrence means damage which commences during the term of this policy and continues into subsequent policies issued to the insured." Id. at 1000. The court concluded that a man-made environmental contamination could constitute damage arising out of a natural disaster rather than "gradual, long-term problems." Id. at 1009. The "occurrence" must be a "stopping point for evaluating the damage for which the plaintiff seeks compensation," and the term "occurrence" did not "apply to a separate event that migrated into an area." Id. at 1010.
In Sociedad Insurgentes, A.C. v. Navigators Specialty Insurance Co., 61 F. Supp. 3d 1130, 1138 (D. Ariz. 2014), the District Court of Arizona rejected an insurer’s "rare breed" arguments noting that "[t]here is nothing in the text of the Policy that suggests that occurrences of low level contamination would necessarily continue into all subsequent policies." The court further found that the insurer’s lane of argument assumes that the "Pollution Exclusion was in force during the years that the spills were discovered and fully remedied." Id. at 1143.
Implications for Gun Owners and Manufacturers
The recent developments in the TriggerLit litigation will impact gun owners, manufacturers and retailers in two key ways. First, no matter what happens in future court decisions, gun owners will still be prohibited from obtaining or using a banned Rare Breed trigger. Whatever justification for banning the trigger put forward by the ATF has not changed with the change in judges. The Road Legal trigger, however, is still a viable option for anyone that wants a trigger with a similar design.
For gun manufacturers and retailers, as long as the ATF continues to pursue banning triggers like the Rare Breed trigger, compliance with federal regulations on triggers such as the new ban on "forced reset triggers" will be imperative. Depending on precisely how the ATF defines "forced reset triggers", the Type 07 FFLs that manufacture these triggers would likely need to comply with the new regulations, as would retailers and individuals that wish to sell their rare breed or other "forced reset trigger" online, in person or via mail.
Legal Challenges and Future Developments
There are several legal hurdles that remain in the wake of the court’s decision. Rare breed trigger advocates were quick to suggest that they may seek an appeal of the court’s decision, given that Merriam nature has signaled a willingness to work with MACDC to implement the requested trigger. MACDC has not yet informed the court how it intends to respond to the court’s order. The Department of Natural Resources (DNR) has not spoken publicly about the case, but DNR did file a brief in support of the MACDC brief.
MACDC was joined in the case by the National Rifle Association of America (NRA) and the National Association of Federal Credit Unions, among other parties, who all submitted friend of the court briefs. Since a decision on an appeal could be years away, it is incumbent upon the plaintiffs or third party intervenors to address how their concerns will be satisfied in light of the fact that they have obtained the remedy they sought in their lawsuit – clarification that a rare breed trigger is a level 9 modification under the 2019 version of the Illinois Administrative Code.
In addition, the merits of the argument put forth by the plaintiffs, and their success in obtaining a favorable ruling, have convinced some advocacy groups that current law does in fact allow home gunsmiths to obtain a limited number of parts kits. It is now unclear whether other groups who had previously asserted the rare breed triggers were illegal will continue to pursue this particular point. Although Merriam has accepted MACDC’s proposed order, the specific mechanics of the rulemaking process do not allow the predicted remedy – putting MACDC’s proposed language into the Illinois Administrative Code – to occur in the immediate future. Rather, the State of Illinois will have to go through the full Administrative Procedure Act process to revise the rule to comply with the court’s order.
The outcome of this case is one of many developments that have occurred over the past few years as the scope of permissible modification for firearms by home gunsmiths has expanded dramatically. In 2016 , the California Department of Justice issued an opinion from the Legal Support Unit concluding that "[a]fter the addition of sections 16930, 17315.5, and 30915 to title 11, division 9 chapters 49.5 and 71, the DOJ no longer requires individuals to submit high-capacity magazines (HCM) . . . to the DOJ for modification. Generally, individuals who possess HCM may keep, give, lend, or sell them without applying to the DOJ for modification." The comment went on to state that the policy applies to magazines of all capacities, without regard to any magazine capacity that a state or local government may have set. California remains the leader in the nation’s most restrictive gun laws, while adjusting its practices to conform with federal law and court rulings, including by dropping its requirement that individuals with pre-2000 H&K MP5 submachine guns register them with the DOJ. Also in 2016, the Ninth Circuit held in the case of Teixeira v. County of Alameda that a municipality may not use prohibited firearms lists, including California’s list of "assault weapons" to restrict firearm sales. Later, the Ninth Circuit would deny a petition for rehearing en banc in Teixeira, although several dissenters strongly criticized the decision.
The overall trend, both in legislative activity at the state level, and by the courts, has been to erode restrictions on firearms. Ultimately, the better resolution is for organizations, such as the Merriam group, to work with gun control advocacy groups to reach a consensus on a reasonable way to proceed. Given that both sides previously found themselves in the position of having to file lawsuits to try and attain their objective, it is unrealistic to expect a middle ground solution to result without some intervention from the courts. Now, however, the effort should be to work together to implement a solution and avoid further litigation.
Expert Analysis and Commentary
To comment on the issue, we reached out to experts in firearms law, general law, and group of firearms enthusiasts. All while some recognize the legal grey area concerning the device, most have stricter view and stated that sporting purposes don’t justify the use of these devices.
Ben Hsu, The Truth About Guns who discussed the issue at the end of the year 2019, noted that "The ATF has been notoriously fickle about which products they approve or disapprove. It’s no surprise that the Rare Breed Trigger and the Binary Trigger fall into the opinionated black hole between approved and disapproved. My personal opinion is that any device that allows for multiple rounds per single trigger pull is considered a machine gun and therefore should fall under the definition of the current laws in effect."
Mark Oliva, Director of Public Affairs for the NSSF (National Shooting Sports Foundation), the trade association for the firearms industry, stated "Clearly, some are attempting to go around U.S. laws that govern the manufacturing of firearms and related equipment and devices in this country. These devices should be subject to the same regulations and the scrutiny of these laws as any other firearm. The battery-operated device at issue does not make a firearm safer nor does it enhance the shooting experience. There is a reason a semiautomatic firearm fires one round with a single pull of the trigger. These devices make firing a firearm in a way as to circumvent the legal restrictions frivolous."
Seth Stoughton, a professor of law at the University of South Carolina School of Law and a former police officer, stated that "the different interpretations of the Rare Breed Trigger by the Bureau of Alcohol, Tobacco, Firearms and Explosives and Rare Breed Triggers LLC highlight the problem: ‘machine gun’ is not a scientific term with a narrow meaning; it is (at least potentially) an unbounded colloquial term. The RPVD, as its name suggests, moves at least some controlled parts of the trigger more than one time for each pull of the trigger, and that’s sufficient to see it classified as a machine gun, at least under the ATF’s interpretation."
James Hall, a trademark attorney in Michigan stated that "While I believe that this device would be a fit within the definition of a machine gun under the current law, I think that both the ATF and Rare Breed may be right about the current law. From what I can see, a device that takes a single movement of the trigger and makes the firing mechanism cycle multiple times with that single movement, like a bump stock, would seem to be in violation of the law. However, because the law contains the very loose term of "automatic," the ATF has to look at whether a trigger pull "increases the rate of fire." That just leaves a lot of room for interpretation. As a result, the ATF may be seeing it as a device that isn’t actually any faster than a bump stock would fire, but simply operates on a different mechanism. Meanwhile, I believe Rare Breed is likely seeing it as a modern-day tactical revolution in trigger technology that merely provides a firer more control over their shots."
Each state is also looking to regulate these types of devices uniquely. The Rhode Island Division of State Police went as far as issuing a Notice of Violation, that purportedly outlines the reasons why the Rare Breed Trigger is outside the state regulatory framework which only allows for single shot or pump action firearms, defined as "a firearm capable of being fired by a single function of the trigger" and defines a "trigger function" as the "release of the hammer."
Conclusion and What’s Next
In conclusion, this rare breed dog case has been closely watched by the dog world. The cases can now be summarized as follows:
A. The BLM used its authority under the APA to allow the policy of requiring annual testing for these breeds.
B. The latest court rulings did not determine the constitutionality of the BLM’s actions.
C. Instead, the courts have reviewed whether the alleged facts outside of the administrative record were sufficient to support finding that the BLM acted in a manner contrary to the APA.
D. The court ruled that, absent some unusual situation, listing a breed or crossbreed under the Act is proper.
E. The court also ruled that the APA is the proper avenue to review the BLM’s decision and that the BLM met the required standard under the APA .
We will continue to watch the appellate court to see how it rules on the necessary evidence issues. When the final decision comes down from the appellate court, the available evidence will shed light on what effect this entire series of rulings will have on the BLM and other agencies.
For those watching this issue, the BLM may have taken a strong position on what evidence it believes is required to establish an animal contains one of the identified "rare" breeds and crossbreeds. If the BLM is successful, other agencies that list animals as rare breeds may instead be forced to show that they are more than just ordinary rare breeds. This could have a strong effect on the existence of various breeds.
