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WASHINGTON SUPPRESSOR / NFA

ATTORNEY DISCUSSION MEMORANDUM

Potential effect of Silencer Shop Foundation v. ATF / Jensen v. ATF on RCW 9.41.250(1)(c)

Purpose

Attorney evaluation and discussion; not a filing-ready pleading.

Date

August 13, 2026

Primary issue

Whether Washington may criminalize suppressor use solely for lack of NFA registration when federal enforcement of that registration requirement is enjoined as to the person or transaction.

Caution

The federal injunction is party-specific, the procedural posture remains time-sensitive, and Washington law has not yet resolved the issue.

This memorandum is legal research for discussion with licensed counsel. It does not recommend an unregistered transfer, manufacture, transport, possession, or use, and should be updated immediately before reliance.

1. Executive Summary

There is a credible, non-frivolous Washington statutory and state-constitutional argument, but there is not yet a clear rule authorizing unregistered suppressor use in Washington. The strongest theory is narrower than “the Texas court invalidated Washington law.” It did not. The better question is how RCW 9.41.250(1)(c) operates when the federal registration regime expressly referenced by Washington cannot lawfully be enforced against a particular person or transaction covered by the federal injunction.

RCW 9.41.250(1)(c) criminalizes use of a device for suppressing firearm noise “unless the suppressor is legally registered and possessed in accordance with federal law.” Washington does not create its own suppressor registry in that statute. The 2011 amendment that added the exception was enacted against the federal NFA registration regime and legislative materials described Washington as not regulating mere suppressor possession under that provision.

The best Washington-law route is therefore statutory construction first, followed by constitutional avoidance, Washington nondelegation under State v. Dougall, and lenity if genuine ambiguity remains. A direct Second Amendment theory should be preserved but not lead the case because United States v. DeBorba, No. 24-3304 (9th Cir. June 3, 2026), is adverse Ninth Circuit precedent on silencers.

The most prudent litigation vehicle is a pre-enforcement declaratory/injunctive action brought by a plaintiff whose federal-injunction coverage, intended lawful acquisition, intended Washington use, and credible threat of state enforcement are all concrete and well documented. Deliberately creating a criminal test case is not recommended.

Bottom-line assessment

Question

Current assessment

Reason

Does the Texas judgment automatically invalidate RCW 9.41.250?

No.

The injunction binds federal defendants and covered parties; it does not adjudicate Washington law.

Does RCW 9.41.250(1)(c) itself prohibit mere possession?

Strong argument: no.

The operative text regulates “use,” and 2011 materials distinguished possession from use.

May a covered person use an unregistered suppressor in Washington today?

Unsettled.

The phrase “legally registered and possessed in accordance with federal law” has not been construed for this post-injunction situation.

Is there a viable pre-enforcement challenge?

Potentially yes.

Best where coverage, intended conduct, and enforcement threat are concrete rather than hypothetical.

Best lead theory?

Washington statutory construction / nondelegation.

Avoids dependence on adverse Ninth Circuit Second Amendment precedent.

2. Key Authorities and Current Posture

A. Washington statute

RCW 9.41.250(1)(c) provides that a person commits the offense by using a device for suppressing the noise of a firearm “unless the suppressor is legally registered and possessed in accordance with federal law.” The statute is best read initially by separating three concepts: acquisition/transfer, possession, and actual use. The subsection expressly addresses use.

Primary source: RCW 9.41.250 (Washington Legislature)

B. 2011 Washington amendment

HB 1016 amended Washington law to permit use of suppressors that are legally registered and possessed in accordance with federal law. The legislative materials are useful because they describe the federal NFA registration system existing at enactment and state that Washington law did not regulate suppressor possession in the same manner as federal law. This history supports the proposition that the Legislature relied on a federal legal-status framework rather than creating a separate Washington registry.

Primary source: 2011 House Final Bill Report, HB 1016

C. August 5, 2026 federal judgment

In Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H (N.D. Tex.), consolidated with Jensen v. ATF, Judge James Wesley Hendrix entered final judgment for plaintiffs on enumerated-powers claims. The judgment permanently enjoins specified federal defendants from enforcing identified NFA provisions as to untaxed firearms against the plaintiffs and, where applicable, their agencies, political subdivisions, members, and customers, both current and future. Additional provisions are enjoined as to the Jensen plaintiffs and, where applicable, their members and customers. The judgment expressly states that the plaintiffs’ Second Amendment claims were dismissed without prejudice as abandoned. It also stayed its own effect for seven days from entry.

The exact scope of coverage is therefore critical. “Member” or “customer” status should not be assumed; counsel should examine the final judgment, organizational standing allegations, the specific plaintiff relationship, and any subsequent appellate or implementation orders before relying on protection.

Judgment: Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H, Dkt. 137 (N.D. Tex. Aug. 5, 2026). Source copy reviewed from the filed judgment.

D. Ninth Circuit Second Amendment authority

United States v. DeBorba, No. 24-3304 (9th Cir. June 3, 2026), is adverse circuit authority on a facial Second Amendment challenge to the NFA silencer registration requirements. For a Washington federal case, counsel should assume DeBorba is controlling unless modified, reheard, or superseded. A Second Amendment claim can be preserved for further review but is not the best lead theory.

Primary source: United States v. DeBorba, No. 24-3304 (9th Cir. June 3, 2026)

E. Washington nondelegation / incorporation authorities

State v. Dougall, 89 Wn.2d 118, 570 P.2d 135 (1977), is the principal Washington authority for the proposition that the Legislature may adopt existing federal standards but may not prospectively surrender Washington legislative judgment by automatically adopting future federal rules that determine criminal liability. Diversified Investment Partnership v. DSHS, 113 Wn.2d 19, 775 P.2d 947 (1989), reinforces the distinction between a complete Washington enactment that operates upon external facts and an impermissible transfer of legislative judgment.

3. Core Legal Theory

A. Statutory construction should come first

The narrow construction proposed for attorney evaluation is: RCW 9.41.250(1)(c) should not be read to criminalize otherwise lawful suppressor use solely because the suppressor lacks federal registration when the federal registration requirement is not lawfully enforceable against the particular plaintiff or transaction.

That construction has several advantages. It does not ask a court to invalidate the entire Washington statute. It respects the Legislature’s decision to tie lawful use to federal legal status. And it avoids creating an implied Washington registration requirement for which the statute supplies no state registration mechanism.

B. The State’s strongest textual argument

Washington will likely argue that “legally registered and possessed in accordance with federal law” contains cumulative requirements: the suppressor must be registered, and it must be lawfully possessed. On that reading, lawful federal possession without registration satisfies only the second condition. The explicit word “registered” is the State’s strongest point and should be confronted directly rather than minimized.

C. Plaintiff’s response

The response is that the phrase describes a federal legal status, not an independent Washington registry. Washington enacted no state application, registration, approval, certificate, or agency process for suppressors. The 2011 materials specifically discussed federal NFA registration as the framework underlying the new exception. Accordingly, “legally registered” should be read as registration lawfully required and available under the federal regime applicable to the person—not as a free-standing state command to obtain federal paperwork that federal defendants are enjoined from requiring.

D. Dougall creates a two-path problem for the State

If Washington contends that RCW 9.41.250 dynamically incorporates whatever federal suppressor law exists from time to time, Dougall becomes relevant because future federal decisions would alter the practical boundary of Washington criminal liability. If Washington instead contends that the statute permanently froze the 2011 federal NFA regime, counsel can argue that the statute does not say “as of 2011,” and that a court should hesitate to insert that limiting language into a criminal statute.

This is not an automatic winner under Dougall. The State can argue that the Legislature itself made a complete policy choice in 2011—only federally registered suppressors may be used—and that later federal changes merely affect whether a person can satisfy that independent Washington condition. Diversified gives the State language to distinguish external triggering facts from delegated lawmaking. This counterargument should be expected.

E. Constitutional avoidance and lenity

If the text reasonably permits the narrower construction, constitutional avoidance supports interpreting the statute in a manner that does not create a prospective-delegation problem or a potentially indefinite criminal obligation to secure unavailable federal authorization. If genuine ambiguity remains after text, context, and legislative history, Washington’s rule of lenity becomes a fallback: unresolved ambiguity in the scope of a penal statute is construed in favor of the accused. Counsel should select the most current Washington Supreme Court lenity authorities when drafting a filing.

4. Litigation Vehicle and Standing

Preferred vehicle: pre-enforcement Washington declaratory action

A Washington Superior Court action appears attractive because the strongest claims concern the meaning of a Washington criminal statute and the Washington Constitution. The desired remedy should be narrow, preferably an as-applied declaration or construction, rather than facial invalidation of RCW 9.41.250.

A clean plaintiff profile would include all of the following:

Washington resident who is legally eligible to possess firearms;

Unambiguous coverage within the federal judgment (with documentary proof of the relevant plaintiff/member/customer relationship);

A specific intended lawful acquisition or existing lawful possession scenario that does not depend on disputed interstate conduct;

A concrete and near-term intent to use the suppressor for an otherwise lawful purpose in Washington;

Current refraining from that use because of RCW 9.41.250(1)(c); and

A credible, preferably documented enforcement position from a Washington official or agency with a sufficient connection to enforcement.

Standing should be developed deliberately. A generalized desire to “someday” use a suppressor is substantially weaker than a documented transaction, present intent, and specific enforcement threat. Counsel should also identify the correct defendant; naming a statewide official without a sufficient enforcement nexus can create avoidable jurisdictional problems.

Alternative: federal pre-enforcement action

A federal action could seek prospective relief against an appropriate state enforcement official under Ex parte Young, potentially using federal due-process theories and preserving the Second Amendment question. The disadvantages are that the case would still depend heavily on construction of RCW 9.41.250 and would confront DeBorba on the Second Amendment. Depending on pleading and posture, abstention or certification issues could also complicate the path. For that reason, state court appears to deserve first consideration.

5. Proposed Claims / Requested Relief

Statutory construction: declare that RCW 9.41.250(1)(c) does not criminalize otherwise lawful suppressor use solely because of absent federal registration where the federal registration provisions are not lawfully enforceable against the plaintiff.

Washington Constitution, Article II, section 1: if the State’s interpretation makes future federal law the determinant of Washington criminal liability, challenge that interpretation under Dougall and related nondelegation principles.

Constitutional avoidance / due process: construe the statute narrowly to avoid serious constitutional and fair-notice concerns created by conditioning criminal liability on unavailable or unenforceable federal authorization.

Lenity: if material ambiguity remains after ordinary interpretation, adopt the narrower criminal construction.

Preserved federal constitutional claim: preserve any Second Amendment claim for further review while acknowledging DeBorba as adverse Ninth Circuit authority.

Suggested form of narrow relief: “RCW 9.41.250(1)(c) may not be applied to criminalize Plaintiff’s otherwise lawful suppressor use solely because the suppressor lacks federal NFA registration where federal defendants are enjoined from enforcing the relevant registration requirement against Plaintiff or the covered transaction.”

6. State v. Plaintiff Issue Matrix

Issue

Plaintiff position

Likely State position

Statutory focus

The subsection regulates “use,” not mere possession.

The exception expressly requires registration before use.

Meaning of registration

Federal legal status; no separate WA registry exists.

Registration is an independent statutory condition selected by the Legislature.

Effect of federal injunction

Covered plaintiff cannot be required federally to obtain the enjoined registration.

Federal injunction binds federal defendants; it does not rewrite Washington law.

Dynamic incorporation

Raises Dougall nondelegation problem.

Federal law is only an external condition, not delegated lawmaking.

Frozen 2011 regime

Statute contains no “as of 2011” language.

2011 Legislature adopted a definite registration standard knowingly.

Due process / fair notice

Criminal liability should not rest on obtaining unavailable federal authorization.

The word “registered” gives clear notice regardless of federal enforcement.

Lenity

Any residual ambiguity must favor the narrower criminal rule.

No ambiguity remains, so lenity never applies.

Second Amendment

Preserve for higher review.

DeBorba forecloses the theory in Ninth Circuit.

7. Principal Risks and Weaknesses

The word “registered” is explicit. A court may find that it creates an independent prerequisite to Washington use even if federal law no longer requires registration from a protected person.

Dougall may be distinguished because Washington can characterize federal registration as a factual eligibility condition chosen by the Legislature rather than a prospective delegation of lawmaking power.

The Texas judgment is party-specific. Coverage must be proved, not inferred from publicity, recent membership, dealer affiliation, or customer status without reviewing the precise record and later orders.

The federal government’s appeal/stay posture can change. The memo should be updated immediately before any demand letter, transaction, or filing.

Other federal statutes and regulations not included in the injunction may remain operative. Interstate movement, making/marking, dealer obligations, prohibited-person rules, the Gun Control Act, and firearm-specific state laws require separate analysis.

Washington standing may fail if the enforcement threat is too speculative or if the plaintiff’s intended conduct is not concrete and imminent.

A court may prefer legislative resolution rather than construing “registered” to mean “registered when federally required.”

8. Attorney Discussion Checklist

Confirm the current docket: any notice of appeal, stay, modification, clarification, ATF implementation guidance, or post-judgment order after August 13, 2026?

Obtain and review Dkt. 136 (Memorandum Opinion and Order) and Dkt. 137 (Final Judgment) in full, plus the operative complaints and organizational standing declarations.

Identify exactly which plaintiff relationship would allegedly cover the prospective client and whether that relationship predates or postdates judgment.

Determine whether the contemplated acquisition/possession/transfer is independently lawful under all non-enjoined federal provisions and Washington law.

Identify the Washington official with actual enforcement authority and the proper venue for declaratory relief.

Determine whether to request an agency/prosecutor position before filing to strengthen standing.

Research the most recent Washington Supreme Court cases applying Dougall, Diversified, constitutional avoidance, and lenity.

Evaluate whether a Washington UDJA claim alone is sufficient or whether federal claims should be pleaded/preserved.

Consider whether an as-applied declaration is strategically superior to a facial challenge.

Advise the client not to create standing through an intentional violation while pre-enforcement relief remains available.

9. Recommended Initial Attorney Position

For an attorney deciding whether to pursue the matter, the most defensible initial position is not that unregistered suppressor use is already clearly lawful in Washington. It is that the August 5 federal judgment creates a concrete interpretive conflict in RCW 9.41.250(1)(c) for persons or transactions actually protected by the injunction, and Washington courts have not yet resolved that conflict.

The case becomes materially stronger if counsel can present a plaintiff with unquestionable federal coverage, a lawful and fully documented transaction, immediate intended Washington use, and a credible state enforcement threat. The requested relief should be narrow and should give the court a statutory-construction route before asking it to invalidate state law.

10. Authorities for Counsel to Pull and Shepardize / KeyCite

Authority

Proposition / use

Priority

RCW 9.41.250(1)(c)

Current Washington suppressor-use text.

Essential

HB 1016 (2011) bill reports / session law

Legislative context for federal-registration exception.

Essential

Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H, Dkt. 136 (N.D. Tex. Aug. 5, 2026)

Enumerated-powers reasoning; precise scope and rationale.

Essential

Id., Dkt. 137, Final Judgment

Exact parties, provisions enjoined, scope, seven-day stay.

Essential

State v. Dougall, 89 Wn.2d 118, 570 P.2d 135 (1977)

Washington prospective federal incorporation / nondelegation.

Essential

Diversified Inv. P’ship v. DSHS, 113 Wn.2d 19, 775 P.2d 947 (1989)

Completeness / external condition distinction.

High

United States v. DeBorba, No. 24-3304 (9th Cir. June 3, 2026)

Adverse Ninth Circuit silencer / Second Amendment authority.

Essential

Washington UDJA cases on “mature seeds” / actual controversy

Pre-enforcement standing and justiciability.

Essential

Current WA Supreme Court lenity cases

Fallback interpretation of criminal ambiguity.

High

Current WA constitutional-avoidance cases

Narrow construction before invalidation.

High

11. Source Notes and Verification

The following sources were checked for this discussion draft. Counsel should independently retrieve official or authenticated copies before filing and should run a current citator on every case.

Washington Legislature - RCW 9.41.250: https://app.leg.wa.gov/rcw/default.aspx?cite=9.41.250

Washington Legislature - 2011 HB 1016 Final Bill Report: https://lawfilesext.leg.wa.gov/biennium/2011-12/Htm/Bill%20Reports/House/1016%20HBR%20FBR%2011.htm

Ninth Circuit - United States v. DeBorba, No. 24-3304: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/06/03/24-3304.pdf

N.D. Tex. Final Judgment, Dkt. 137 (source copy of filed document): https://shared.nrapvf.org/sharedmedia/1512215/2026-jensen-137-final-judgment.pdf

Public docket mirror - Silencer Shop Foundation v. ATF: https://www.courtlistener.com/docket/70709999/silencer-shop-foundation-v-bureau-of-alcohol-tobacco-firearms-and/

Drafting note: This memorandum intentionally avoids assuming that any particular individual is within the federal injunction. That fact should be established by counsel from the judgment, operative pleadings, membership/customer evidence, and any post-judgment guidance before legal reliance.