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Legally Armed: V20N10

By Teresa G. Ficaretta, Esq. and Johanna Reeves, Esq.

Less Lethal Devices: Regulation Under Federal Law

The types of less lethal devices available to law enforcement agencies and consumers have dramatically increased in the last 20 years, raising questions concerning their regulation under the federal firearms and explosives laws. This article will address diversionary devices, conducted electrical weapons, 37mm and 40mm launchers and the projectiles they fire, smoke bombs and grenades, and rubber pellet grenades and address their regulation under federal law. This article will not address restrictions on less lethal devices imposed under state or local law.

I. Legal Background

1. Gun Control Act of 1968

The Gun Control Act of 1968 (GCA) regulates “firearms.” The term “firearm” is defined to include any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; and any destructive device. The term “destructive device” is defined to include any explosive, incendiary, or poison gas bomb, grenade, or mine, and any weapon that will expel a projectile by the action of an explosive and which has a bore of more than one-half inch in diameter. The term specifically excludes any device that is not designed or redesigned for use as a weapon, and any device which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device.

All firearms, including destructive devices, must generally be transferred interstate through federal firearms licensees (FFLs). FFLs must keep records of acquisitions and dispositions of firearms and must record transfers to non-licensees on ATF Form 4473.

2. National Firearms Act

The National Firearms Act (“NFA”) requires that “firearms” be registered by their manufacturer, importer, or maker, and that transfers of firearms be approved in advance by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). The term “firearm” is defined to include destructive devices, and the term “destructive device” is defined in the same way as under the GCA.

3. Federal Explosives Laws

The federal explosives laws in Title 18 of the United States Code, Chapter 40,...

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