Fireclean No Longer Claiming Their Oil Won’t Gum Up

As voluminous as the latest Fireclean lawsuit is at 50 pages of complaint and 200 pages of exhibits, what’s most notable is not what is in the suit, but what is not in the suit. Put more precisely, what is no longer in the suit is what really caught my attention.

On March 17, 2016, Fireclean filed a lawsuit against me. On page 6 of that lawsuit was the line “The product itself is specially formulated so that it will not “gum,” or leave behind a solid residue from its use.” Elsewhere on this page, continuing to page 7, was the line “Fireclean contains at least one high-oleic oil…which is preferred…due to the non-gumming nature of high-oleic oils.” On page 14 of this lawsuit was the line “Simply put, the statement or inference that the normal and proper use of Fireclean will lead to corrosion or the formation of solid residues on firearms or weapons is false.”

On September 11, 2016, Fireclean filed another lawsuit against me. On page 31 of this complaint was the line “A non-drying oil such as Fireclean will not gum or form solid residue when exposed to air.” On page 11 of this complaint was the line “Fireclean contains at least one high-oleic oil…which is preferred…due to the non-gumming nature of high-oleic oils.”

On February 8, 2017, Fireclean amended their September complaint. While they added claims of aiding and abetting George Fennell’s tortious conduct, they also removed several lines from the complaint. All of the above lines were removed from the First Amended Complaint.

Editing mistake, you say? Well, even if we ignore that these lines appeared numerous times throughout both prior complaints, examine this Plaintiff’s Memorandum in Support of Motion In Limine Regarding Withdrawn Gumming Claims in the Fennell case, filed January 24, 2017:

Furthermore, when Fireclean provided the FBI with Fireclean in late 2012, they were receiving complaints of “tackiness” as early as March of 2013. They claimed in court that these issues resulted from the size of the bottles used by the FBI.

Fireclean has intentionally removed the words and phrases “gum” and “solid residue” from the defenses of their product in the lawsuit against me in Arizona. They have abandoned their claims that Fireclean, when used properly, will not gum up or form solid residues, and they have admitted that they were informed by the FBI of “tackiness” issues with their product in 2013.

Fireclean Files Motion to Strike Portions of My Last Filing

Fireclean has filed a motion to strike (http://www.vuurwapenblog.com/wp-content/uploads/2017/06/34-Motion-to-Strike.pdf) portions of my Reply in Support of the Motion to Dismiss (http://www.vuurwapenblog.com/wp-content/uploads/2017/06/33-Reply-ISO-MTD.pdf) their latest lawsuit against me.  Their motion is based on the claim that the Reply introduced concepts which were not introduced in the Motion to Dismiss, which they contend is unfair. To be clear, not introducing things in a motion and then introducing them in a reply is not okay under the Federal Rules of Civil Procedure, so if they had a solid basis for this motion then there would be a good chance it could be successful.

Now, I am not a lawyer, and what follows is not a legal argument but simply my interpretation of the issues at hand and the ridiculousness of their argument based on the information they have presented. 

However, they do not have a solid basis for this motion. Most importantly, these issues were raised in the Motion to Dismiss. Which issues, you ask? The issues they claim were not properly raised are closely related: that their speech was a matter of public opinion and, as a result, that I was acting as a consumer advocate. In claiming this, they appear to have missed the following quotes from the Motion to Dismiss, the latter of which was in fact the concluding paragraph of the whole shebang:

“FireClean’s Complaint repeatedly (but summarily) alleges that Mr. Tuohy published all of the 21 different challenged statements with “actual malice”. In doing so,
FireClean appears to correctly concede the statements at issue involve matters of public interest or concern. As such, to state a valid claim, FireClean must plead facts sufficient to establish actual malice; “If a defamation action involves a matter of public concern, a plaintiff must establish the presence of actual malice.””

And…

“What FireClean may not do is unlawfully abuse the legal system in an effort to suppress and conceal honest, legitimate expressions of opinion; “[The Lanham Act] has never been applied to stifle criticism of the goods or services of another by one, such as a consumer advocate, who is not engaged in marketing or promoting a competitive product or service.” Goodman, 2014 WL 1310310, *5. The conclusion is precisely applicable here.”

Fireclean cites a case which they seem to imply supports their argument, selectively quoting snippets of sentences to seemingly imply that the issue needs to be raised in such a manner as to be considered “fully explored” in order to be allowed in a reply brief. Here’s their argument, which you should read in its entirety by following the link at the beginning of the article:

However, if we look at the complete sentences nearby in the case they cite (Eberle v. City of Anaheim) , we see that this case is not only inapplicable in the way Fireclean implies, but it actually supports including the arguments they wish to toss out (emphasis mine, and I’ve removed case citations for simplicity’s sake):

“Kiser did not raise the argument in his opening brief. Indeed, in his opening brief he neither mentions the pretrial order nor the district court’s denial of his motion to amend it. The first time the argument pops up is in Kiser’s reply brief…  We could consider the issue had appellees raised it in their brief… But appellees merely noted that Kiser had failed to raise the issue. Such an observation does not constitute raising the issue.  We could also “consider the issue [if] the appellee has not been misled and the issue has been fully explored.” This, however, is not the case. The issue has not been fully explored.”

The case they cite does not require an issue to be fully explored and indeed it clearly states that an issue can be considered if raised in the brief. The “observation” they refer to in the other case was an admission that the issue had in fact not been raised in that case. The concepts of consumer advocates and whether or not their speech was a matter of public opinion were indisputably “raised” in the Motion to Dismiss. Therefore, this motion to strike is another ill-advised and extraneous attempt to distract from their complete lack of a case, much like their earlier motion to prevent me from filing seven extra pages in response to their phone-book-sized lawsuit, which failed.

Judge to Decide on Motion to Dismiss Fireclean Lawsuit #2

Having received Fireclean’s complaint, my motion to dismiss, Fireclean’s response to my motion to dismiss, and my reply in support of my motion to dismiss, the judge now has all the information he needs to make a ruling.

My reply in support of the motion to dismiss was just filed yesterday and it’s a fairly quick (and excellent, in my opinion) read compared to some other documents in this case, if you have the time and inclination to peruse such things.

An excerpt from my attorney, David Gingras’, excellent writing:

“Rather than accepting FireClean’s allegation as true, this Court can and should review Mr. Tuohy’s actual statements set forth in the exhibits to the Complaint (cleaner copies were also attached to Mr. Tuohy motion). Upon review, the Court will quickly discover a disturbing fact – FireClean’s table of false assertions is flatly contradicted by the actual text of Mr. Tuohy’s article. In short, Mr. Tuohy either did not say what FireClean claims, or FireClean has grossly misrepresented the context of each statement. This Court need not accept FireClean’s allegations which contradict these exhibits.”

Fireclean Misquotes Larry Vickers in New Lawsuit

As you may be aware, part of Fireclean’s new lawsuit has to do with my article regarding the Fireclean Lube Test video they made with Larry Vickers about nine months before the controversy began.

In the original version of their Arizona lawsuit, they included the line “After the comparison, David Sugg and Edward Sugg observe and comment on the testing.”

In their amended complaint, however, they added something to this sentence in addition to changing “David Sugg and Edward Sugg” to “The Sugg Brothers” – it now reads “…and Vickers concludes there was ‘not much difference’ between the dry gun, CLP, and Fireclean.”

With the Vickers video having been taken down by the LAV himself, a mistake appears to have been made in describing the video in its absence.

Fortunately, a copy of the video was preserved and re-uploaded to YouTube by a third party the very same day I wrote my article about the video. It is now cited in my Motion to Dismiss, and you can watch it here.

In the video, Vickers makes the following statement before testing:

4:55 “Fireclean will be properly applied by the Fireclean brothers, and then we’ll see what kind of fouling we get coming out the ejection port and the muzzle. Hopefully, we think you’ll be able to see this on high speed camera and you’ll be able to see the amount of fouling that’s jettisoned out of the gun and therefore keeps the gun cleaner.”

During testing, he says:

9:00 “My gut is, not a lot more than the CLP, but a bit more.”

9:15 “Last up, Bravo Company carbine with Fireclean applied. Going to check out the ejection port and the muzzle and I think we’re going to see some extra debris blowing downrange.”

After testing, Vickers says:

9:47 “Dramatic. That was much more noticeable. A lot more vented out. Compare that to the dry” 

10:25 “With CLP or certainly Fireclean, there is more debris coming out of the gun… From what I saw, to summarize, more debris comes out of the gun with Fireclean in a handgun, but dramatically more with a carbine. That’s what I saw, and I think it’s 100% due to the pressures involved.”

At no time does Vickers say that there was “‘not much difference’ between the dry gun, CLP, and Fireclean” as claimed in in their First Amended Complaint.

On page 13 of their response to my motion to dismiss, Fireclean claims they can “provide evidence, such as the results of scientifically sound lab tests, eyewitness testimony, and expert testimony, to prove the FAC’s allegations that they did not falsify any video test results or mislead the public” – but if you follow the reference they make to the original document, it’s just the IR testing comparing Fireclean to various types of Crisco – it doesn’t have anything to do with the video. None of their 200 pages of exhibits contains a reproduction or re-verification of the Fireclean Lube Test video.

Elsewhere in their complaint, Fireclean accuses me of ruining their business relationship with Larry Vickers. In their case against George Fennell they did not put Larry Vickers on their witness list even though they did include another industry personality. They also fought hard to have themselves defined as expert witnesses.

I encourage you to read these items, watch the video, and come to your own conclusions about what this means.

Fireclean’s Latest Patent Appeal is 100% Interesting

As they have often mentioned, Fireclean has applied for a patent (see exhibit A of this lawsuit for the complete application) regarding two topics: an oil composition and a method for cleaning firearms. Several years ago, they described their product in various ways as containing “at least” 25% vegetable oil by volume.

Elsewhere:

Their patent was rejected in June of 2016 and again in October of 2016, for being both too close to prior art and not being specific enough about the formula.

In April of 2017, they filed a last-ditch appeal which abandoned most of their previous claims, including all composition claims:

Instead they focused on the method portion of the patent claims, which included this line:

So Fireclean is now applying for a patent which describes a method for cleaning firearms requiring an oil composition that is a) “about 100% vegetable oil” and b) does not contain a compound which is not a vegetable oil, otherwise it would continue to conflict with the mentioned Legros patent.

Fireclean has not attached this latest 2017 patent appeal to their lawsuit against me in Arizona, or any of their previous appeals which further clarified the composition of Fireclean. Instead they present the court with, and rely upon the wording of, the original patent application from 2013, which describes “at least” 25% vegetable oil.

Just a few days ago, there was a USPTO Office Action which tentatively identified some allowable subject matter in their patent application – claims 16 and 18. Claims 16 and 18 relate to the method of treating the metal with Fireclean, either by “drying the deposited oil composition by heating at a temperature of about 100 to 400 degrees fahrenheit” (Claim 16) or “immers(ing) at a temperature of about 100 to 400 degrees fahrenheit for a period between about 10 minutes to 24 hours.” These actions require an “about 100%” vegetable oil composition.

Dropping all prior pretenses of it being “above 25% vegetable oil,” Fireclean’s latest patent application describes the product only as “about 100% vegetable oil,” – yet they continue to claim the sentence “Fireclean is probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking” is something worth suing over.

Dances with Words: What’s Missing from Fireclean’s Latest Lawsuit?

As voluminous as the Fireclean lawsuit is at 50 pages of complaint and 200 pages of exhibits, what’s most notable is not what is in the suit, but what is not in the suit. Put more precisely, what is no longer in the suit is what really caught my attention.

On September 13, 2015, Fireclean released a statement which included the line “(Fireclean) is… not a re-labeled or re-packaged product.”

On March 17, 2016, Fireclean filed a lawsuit against me. On page 7 of that lawsuit was the line “Fireclean is not otherwise a re-labeled or re-packaged pre-existing consumer or retail product.”

On September 11, 2016, Fireclean filed another lawsuit against me. On page 11 of this complaint was the line “Fireclean is not a re-labeled or repackaged pre-existing consumer or retail product.”

On February 8, 2017, Fireclean amended their September complaint. While they added claims of aiding and abetting George Fennell’s tortious conduct, they also removed several lines from the complaint. One of those missing lines was that which is referenced above in triplicate.

Editing mistake, you say? Well, even if we ignore that this line has been central to the defense of their product since their very first response to my first article, examine this footnote from a Fireclean opposition to a defense motion in the Fennell case, filed February 7, 2016:

The same brand and quantity of oils sold by this “non consumer or retail” wholesaler are also available for sale on Amazon.com, which you may know as a source of consumer or retail products.

The day after the document containing that footnote was filed, Fireclean removed the line “Fireclean is not a re-labeled or repackaged pre-existing consumer or retail product” from their lawsuit against me in Arizona.

Fireclean Files Motion Describing Vuurwapen Global Media Empire

Yesterday, Fireclean’s counsel filed a motion opposing my motion to dismiss their lawsuit against me in the Arizona District Court. This comes on the heels of their poorly strategized motion opposing the length of my motion being shot down in flames by the same judge who’ll eventually rule on the case itself.

In their latest motion, Fireclean seems to make two main points:

1. I, Andrew Tuohy, am for real a competitor of Fireclean

and

2. This topic is not a matter of public concern.

In order to prove the first point, Fireclean describes the extent of my global media and apparel empire:

I’m sorry that you all had to find out this way that I’m one of the world’s most successful entrepreneurs, what with my four podcast episodes already having spawned a radio show company.  Also, I find it surprising that they describe all of these “industries” in which I target “consumers” and then proceed to vehemently deny the idea that this topic is a matter of concern.

The first line in their opposition is apparently based on the belief that if you say something enough times, it eventually becomes true. I found the shrill and almost desperate tone of the motion to be highly entertaining, and am very much looking forward to hearing the judge’s thoughts on all of this.

There’s plenty more to discuss, but I’ll let you all peruse their opposition to the motion to dismiss here after leaving you with one final thought:

If you are a blogger, Fireclean’s position is that you are a business, and thus a direct competitor stripped of first amendment protections.

General Scales Is Still Wrong About Infantry Rifles

Who thinks the next US infantry rifle needs to be heavy, complicated, incredibly expensive, based on unproven technology, and reminiscent of much-maligned acquisition programs like the Littoral Combat Ship and F35 Joint Strike Fighter? A retired two-star general named Bob Scales, that’s who.

If that name sounds familiar and you weren’t previously under his command or in the Army between the years of 1966 and 2000, it’s probably because Scales has been railing against the M4/M16 for many years. Scales has, in many other areas, put forth a number of thoughtful and well-reasoned opinions; his discussion of infantry rifles, which has been going on for years and most recently was the topic of a Senate hearing, unfortunately falls short of his discussions of other areas.

Here are four requirements Scales puts forth for the next infantry rifle: modularity, new calibers, stealth, and better precision. We’ll look at each of these requirements and evaluate them accordingly, then discuss other factors relating to the selection of a rifle for infantry use.

Modularity

Multiple weapons can now be assembled from a single chassis. A squad member can customize his weapon by attaching different barrels, buttstocks, forearms, feed systems, and accessories to make, say, a light machine gun, a carbine, a rifle, or an infantry automatic rifle.”

It’s as if Scales isn’t aware that this is already possible with the M16 and M4 family of weapons. However, as the great chaotician Ian Malcolm once put it, “Your scientists were so preoccupied with whether or not they could that they didn’t stop to think if they should.” Sure, you can plop a belt fed upper on an AR15 lower right now. Is the result a superior firearm when compared to existing inventories of weapons? Highly unlikely. And it seems that every time we’ve seen the argument that weapons can be customizable by the end user – most specifically, barrel or upper swaps between designated marksman and entry style carbines – are a good idea, they’re evaluated by the military and then quietly passed over when it comes time to cut a check. In addition to creating a logistical nightmare, the modifications to any platform which would allow quick change barrels result in a heavier and more complicated weapon which does not end up being utilized to its full potential by the majority of end users. Ask any infantryman if he’d like to carry several pounds of extra barrel around on the off chance that he wants to make his infantry rifle into a light machine gun in the field as Scales suggests and he’s likely to ask if you made it into the military on an ASVAB waiver, albeit somewhat less politely.

New calibers and cartridges

The military must change the caliber and cartridge of the guns it gives infantry soldiers. [American firearms designer Eugene] Stoner’s little 5.56‐mm cartridge was ideal for softening the recoil of World War II infantry calibers in order to allow fully automatic fire.

But today’s cartridge is simply too small for modern combat. Its lack of mass limits its range to less than 400 meters. The civilian version of the 5.56‐mm bullet was designed as a “varmint killer” and six states prohibit its use for deer hunting because it is not lethal enough to ensure a quick kill.

The optimum caliber for tomorrow’s rifle is between 6.5 and 7 millimeters. The cartridge could be made almost as light as the older brass‐cased 5.56‐mm by using a plastic shell casing, which is now in final development by the Marine Corps.

Here, Scales blends myth and a lack of historical understanding with a glimmer of truth. Sure, 6.5 to 7mm infantry rifle cartridges exist, and they offer significant benefits in terms of ballistic or terminal effectiveness when compared on a one-to-one basis with 5.56mm NATO. But that last acronym is the key – NATO. We have standardized ammunition across all of NATO, ensuring commonality of everything from 9mm pistol cartridges to the 120mm cannon ammunition shared by the M1A2 Abrams and the Leopard 2A7 tank used by Germany. Should we choose to break away from 5.56mm, though, we’d be unable to share what is likely the most-produced cartridge in the world, the infantry rifle cartridge, with all of our major allies in the event of a conflict.

A small edge in ballistic effectiveness – and when one steps back and looks at the differences between 5.56 and Scales’ favorite, 6.8mm SPC, as compared to significantly larger cartridges like 6.5 Creedmoor or 300 Win Mag, they do become small – pales in comparison to the logistical benefit of being able to acquire ammunition from more than a dozen sources in the event of all-out war. The alternative is convincing all of NATO to dump 5.56 as well. We did it once before, with the switch from 7.62×51 to 5.56×45. It’s possible, but it would be an uphill battle requiring lots of other changes to weapons platforms as well. The only realistic caliber switch on the horizon would be going back to 7.62×51 – but that would be really dumb.

Where Scales really goes off the rails is his put-down of the “civilian version (.223) of 5.56” as being designed to kill varmints, attempting to paint the military cartridge with the same brush. On the contrary, 5.56×45 was designed as an infantry rifle cartridge, having been developed out of the SCHV (small caliber, high velocity) program of the 1950s. That study found that lower recoiling ammunition resulted in more hits than the existing, larger cartridges. Needless to say, physics and ballistics haven’t changed much in the last 60-70 years. Where 5.56 has been hamstrung is with ineffective projectile design, but that’s finally being addressed with various programs such as SOST and M855A1.

Scales trots out the old “.22 caliber projectiles are banned for deer hunting in 6 states” trope – hey, even more states ban hunting deer with rifles altogether. Should we equip our troops with hunting-legal shotguns or muzzleloaders so that they can also legally hunt deer in Ohio or Rhode Island?

Simply put, the idea that 5.56mm was designed to be anything but an infantryman’s best friend is false, as is the assertion that its range is less than 400m. Training is far more of a limitation in terms of long range effectiveness than caliber, but I didn’t see a discussion of that by Scales. Just throw money at defense contractors, he says! That’ll fix everything! Unsurprisingly, Scales sits on the board of directors of defense contractor Northrop Grumman.

It’s Scales’ last point on this matter – plastic cased ammo – that really starts to fall into the “transformationalism” trap. If you’re not familiar with that word as it applies to defense matters, the “transformationalists” have given us programs like the Northrop Grumman-built USS Ford with its failing Advanced Arresting Gear and Electromagnetic Aircraft Launching System, the USS Zumwalt with its now-defunct Long Range Land Attack Projectile, and the F35 JSF with its, well, everything.

These are all programs that were contracted out before the technology was proven with the expectation that by the time the ship or plane entered service, all the kinks would have been worked out. As a result, we have a carrier well behind schedule that can’t reliably launch or land aircraft, a 7 billion dollar pocket-battleship-sized destroyer without ammunition for its two small guns, and a stealth fighter that can’t stealth or fight years after it was expected to enter service. We don’t need to add an infantry rifle to this list.

Prove plastic cased ammunition beyond a reasonable doubt; then we can talk about putting it in a service rifle. The fact that polymer/plastic ammo projects have been in the “final stages” for many years should give anyone pause before advocating that they be adopted by the military. Alternatively, let’s assume they work out better than anyone could have hoped – just as Scales claims this would result in 6.5 or 6.8mm ammunition lighter than 5.56, it also means far more 5.56mm could be carried for the same weight. Remember, Rommel didn’t say “The winner in a bayonet fight is he who has a rifle bore one millimeter larger than his opponent,” he said “The winner in a bayonet fight is he who has one more bullet in his magazine.”

Stealth

The Army can achieve an infantry version of stealth by attaching newly developed sound suppressors to every rifle. Instead of merely muffling the sound of firing by trapping gases, this new technology redirects the firing gases forward, capturing most of the blast and flash well inside the muzzle. Of course, an enemy under fire would hear the muted sounds of an engagement. But much as with other stealth technology, the enemy soldier would be at a decisive disadvantage in trying to determine the exact location of the weapons firing at him.”

This is one area where Scales and I see largely eye to eye, but it doesn’t take a whole lot to put a sound suppressor or silencer on a rifle, including the ones we have now. If hiding the location of a shot by visual means is of the utmost concern, though, I’d take a great flash hider like the AAC Blackout over a silencer mounted on an A2 or a muzzle brake. It’ll reduce flash to a greater extent. Side note: silencers aren’t a new development, contrary to Scales’ claims.
Precision

Computer miniaturization now allows precision to be squeezed into a rifle sight. All an infantryman using a rifle equipped with a new‐model sight need do is place a red dot on his target and push a button at the front of his trigger guard; a computer on his rifle will take into account data like range and “lead angle” to compensate for the movement of his target, and then automatically fire when the hit is guaranteed. This rifle sight can “see” the enemy soldier day or night at ranges well beyond 600 meters. An enemy caught in that sight will die long before he could know he was seen, much less before he could effectively return fire.”

Here, Scales jumps on the transformationalism bandwagon firmly with both feet. He’s talking about products like TrackingPoint, which, even if produced on a massive scale, would likely triple or quadruple the cost of an infantry rifle, add significant weight, and most importantly, promise much while delivering little. It’s amazing, he says! The enemy will die before he could know he was seen! Meanwhile, in the real world, the TrackingPoint team finished nowhere near the top when competing in the Vortex Extreme in 2013 against shooters with conventional optics. As it turns out, there’s a lot more to making it through a course in the field and hitting targets than having a magic wand for a riflescope (note: TrackingPoint later set up their own competition with Taya Kyle using TrackingPoint equipped rifles against competition shooter Bruce Piatt using standard optics – TrackingPoint won their competition, unsurprisingly).

Of course, the vulnerability of these types of systems to interference has been previously established, and chances are that computer whiz kids with the backing of a state like Russia, Iran, China, or North Korea would be at least as good at finding ways to interfere with these “computer miniaturized” rifle scopes as the American security researchers who figured out how to do it in their spare time.

Lest you think I’m making mountains out of molehills regarding the weight and effectiveness of TrackingPoint’s firearms, their 5.56 rifle sold as a replacement for the M4A1 weighs 12 pounds.

At Whom Shall We Shoot With This Rifle?

But this brings up another point – who would we fight with this rifle? Are we, as General Scales once suggested, going to be killing large numbers of Russians with it in Eastern Ukraine? Are we going to hand it to Marines and tell them to storm some artificial reefs in the South China Sea? Are we going to continue to use it in low-intensity conflicts in the Middle East for the next century? Do Scales’ suggestions give us a one-size-fits-all master key of a rifle that will truly do anything? Or do his suggestions leave us with a rifle that would have increased weight, complexity, recoil, vulnerability to interference, and dependence on unproven technology?

Students of military history know that while technology has often proved critical in battles throughout history, the level of training, morale, and supply of a force often played a much larger role than the details of the weapons they employed. After a decade and a half of constant war, and with sequestration continuing to wreak havoc on training and readiness, what new funds can be diverted to the military should be focused on fixing the major issues facing the forces at the moment – not on fixing what ain’t broke – especially when those “fixes” have the potential to create even more problems for the military.

Based on purchasing only 100,000 rifles, Scales estimates that for a price tag of $100,000,000, we could equip all Army and Marine infantry with new rifles – that’s $1000 per rifle.

How he reaches this number is a mystery, for he advocates buying a new design that doesn’t exist which is based on unproven – worse, failed – optics technology and fires a bullet that isn’t in the military inventory out of a plastic cartridge case that is languishing in testing and, again, isn’t in the military inventory. How does Scales think the military can buy this new rifle which currently does not exist – not to mention a computerized optic and a silencer – for $1000 when recent ~100,000 rifle contracts for the well-established M4/M16 without an optic came out to $642 per rifle? Why does he ignore the massive costs of switching over to a new caliber and the logistical difficulties that would be experienced from such a change?

Scales also seems to be out of touch with the war that has been going on since the year after he retired. Scales claims that new rifles are only needed for the infantry and that the M4 and M16 will be fine for “non-infantry personnel in the unlikely event that they find themselves in combat.”

Scales’ obsession with providing just the infantry with a new rifle ignores that, while all combat troops (including infantry, armor, artillery, combat engineer, etc) do have higher casualty rates than non-combat troops, it is not an “unlikely event” that non-combat troops will find themselves in combat. Indeed, the “modern war” Scales decides the M4/M16 is not suited for has been marked by a drastic increase in non-combat troop involvement in combat. The MOS with the highest number of female deaths in Iraq at one point? Truck drivers.

He also seems to think that changing rifles will have a major effect on troop survival rates in combat. But studies of US military combat injuries from Iraq and Afghanistan show otherwise. One BCT deployed during the surge suffered a large number of casualties – but gunshot wounds represented only 9 percent of hostile injuries and that only 5.7 percent of those gunshot wounds were fatal. Meanwhile, 77.7 percent of all hostile wounds were due to IEDs and 7.6 percent of those wounds were fatal. In other words, gunfights result in only a fraction of the injuries sustained by American troops and those injuries are less likely to be fatal than the IED related injuries which make up the vast majority of combat injuries in modern war. The lethality of gunshot wounds has decreased from 33% in previous conflicts such as Vietnam to less than 5% in the Iraq and Afghanistan periods, largely due to better body armor and casualty evacuation protocols – but also because of a renewed enemy focus on killing Americans with explosives, not guns.

Conclusion

What does all of this mean? Well, Scales’ ideas for a new rifle are simply not grounded in the reality of the war American Soldiers, Sailors, Airmen, and Marines face every day. Their conflicts – infantry and non-infantry – encompass a wide variety of situations that would not be materially affected were they to carry a different rifle. Their deaths in gunfights pale in comparison to their deaths from other forms of combat which could be addressed with greater effect. Plus, every dollar spent on a new rifle is a dollar not spent on improving readiness, ensuring a high level of training, and maintaining equipment that does save lives. If advancing the capability of American infantry via new technology is the goal, putting that money into drones, electronic warfare, or even exoskeletons might yield more impactful results than incremental rifle upgrades. Contrary to Scales’ imagination, the sums of money involved in such a change would be breathtaking. Most important, the M4/M16 is a known item, while Scales’ paper rifle is a complete unknown.

Decisions on what makes a good infantry rifle should be limited to what is currently proven to work and be reliable in field conditions right now. Major General Scales means well, but if adopted now, many of his proposed changes would not save American lives – they would cost them.

Judge Rules Against Minor Fireclean Motion

Along with the motion to dismiss Fireclean’s complaint, my attorney David Gingras filed a Motion for Leave to Exceed Page Limits. You see, local rules limit motions to 17 pages. However, when you’re facing a complaint that’s 48 pages long plus 200 pages of exhibits, sometimes you have to exceed 17 pages in response. Ours was 24 pages (plus exhibits). Asking for extra pages on a motion is specifically allowed in the local rules.

Oddly, Fireclean’s counsel filed a Motion Opposing the Motion for Leave to Exceed Page Limits less than 24 hours after our motion was filed, claiming “(t)he Plaintiffs disagree that there is good cause to exceed the established page limitations.”

Responding quickly, the judge reviewed both motions and issued an order granting my Motion for Leave to Exceed Page Limits.

It’s a minor victory, but hey, I’ll take it – it means Fireclean will have to deal with the merits of my argument in full instead of tying one hand behind my back.

Fireclean Sues Again

Spring has sprung in America; migratory birds begun their journey north to rapidly thawing lakes as the south experiences triple digit temperatures and lawsuits with triple digit page counts.

Yes, it’s that time of the year when Fireclean decides to pursue a 250 page lawsuit against me alleging dozens of counts of wrongdoing – ranging from false advertising to defamation to aiding and abetting tortious conduct.

This is, of course, relating to the series of articles I wrote reporting the results of tests conducted by third parties in the fall of 2015. Many of you may have forgotten these articles or the lawsuit last year in which Fireclean’s arguments were rejected by a federal judge in the Eastern District of Virginia. They’ve now filed a complaint in Arizona, apparently believing that reminding everyone of the articles before they lose again is the best course of action.

I am represented in this case by David Gingras, who has extensive experience with defamation law in the state of Arizona. You may read the excellent motion to dismiss the case he has written here.

At this time I am not requesting donations to the GoFundMe legal defense account.

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