Instructor convicted after rifle jams

[hammAR]

http://worldnetdaily.com/news/article.asp?ARTICLE_ID=59650

Guardsman guilty of illegally transferring 'machine gun' after firearm malfunctions
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A drill instructor in the National Guard has been convicted in a Wisconsin federal court of illegally transferring a machine gun after a rifle he loaned to a student malfunctioned, setting off three shots before jamming.

The verdict of guilty on one count in the case against David Olofson was confirmed yesterday by the clerk's office in the U.S. District Court for the Eastern District of Wisconsin.

That means now that anyone whose weapon malfunctions is subject to charges of having or handling a banned gun, according to an expert witness who reports that the particular problem is a well-known malfunction and was even the subject of a recall from the manufacturer.

"If your semiautomatic rifle breaks or malfunctions you are now subject to prosecution. That is now a sad FACT. I guess we know now what Sen. Kennedy meant when he said he looked forward to working with [Acting Bureau of Alcohol, Tobacco, Firearms and Explosives Director] Mike Sullivan on Gun control issues, after his committee approved him for full Senate vote," Len Savage, a weaponry expert who runs Historic Arms LLC, said in a blog.

"To those in the sporting culture who have derided 'black guns' and so-called 'assault weapons'; Your double barreled shotgun is now next up to be seized and you could possibly be prosecuted if the ATF can get it to 'fire more than once,'" he wrote in a blog run by Red's Trading Post.

"Hey, but don't worry," Savage said. "The people testing it have no procedures in writing and the testing will be in secret. Also if you know of information that proves YOUR innocence, maybe the ATF won't claim that it's tax information at your trial and prevent YOUR judge from viewing it."

He told an interview with Jews for the Preservation of Firearms Ownership that Olofson had been instructing a man in the use of guns, and the student asked to borrow a rifle for some shooting practice.

"Mr. Olofson was nice enough to accommodate him," Savage said. So the student, Robert Kiernicki, went to a range and fired about 120 rounds. "He went to put in another magazine and the rifle shot three times, then jammed," Savage said.

A couple of police officers who also were at the ranged immediately approached him and started asking questions about the "automatic" fire, and he told them it was a borrowed weapon.

"Mr. Olofson, being a responsible person, went down to the police station and said, 'I'm in the National Guard. I know what a machine gun looks like. That's not it,'" Savage said.

But instead of having the issues resolve, Savage said, it got worse.

He reported that because of the malfunction, the rifle was seized and sent to the Firearm Technology Branch, the testing arm of the federal agency.

"The examined and test fired the rifle; then declared it to be 'just a rifle,'" Savage said. "You would think it would all be resolved at this point, this was merely the beginning."

He said the Special Agent in Charge, Jody Keeku, asked for a re-test and specified that the tests use "soft primered commercial ammunition."

"FTB has no standardized testing procedures, in fact it has no written procedures at all for testing firearms," Savage said. "They had no standard to stick to, and gleefully tried again. The results this time...'a machinegun.' ATF with a self-admitted 50 percent error rate pursued an indictment and Mr. Olofson was charged with 'Unlawful transfer of a machinegun.'. Not possession, not even Robert Kiernicki was charged with possession (who actually possessed the rifle), though the ATF paid Mr. Kiernicki 'an undisclosed amount of money' to testify against Mr. Olofson at trial," Savage said.

And then during the trial, the prosecution told the judge it would not provide some information defense lawyers felt would clear their client, Savage continued. That included the fact that the rifle's manufacturer, Olympic Arms, had been issued a recall notice for that very model in 1986 over an issue of guns inadvertently slipping into full automatic mode, if certain parts were worn or if certain ammunition was used.

Ryan Horsley, who posts the Red's Trading Post blog, said the results were "very concerning."

"Basically if your Ruger 10/22, Browning Citori Over and Under or Remington 11-87 malfunction and fire more than one round at a time; the ATF will now consider it a machine gun," he wrote.

He told WND he's had personal experience with guns that malfunction and fire more than one bullet. Even double-barreled shotguns, if both shells would be released at once, now could be considered machine guns and illegal, he said.

"This precedent is very dangerous," he said.

Defense attorneys in the Olofson case couldn't be reached immediately to determine whether an appeal would be pursued, but Savage noted the arguments by assistant U.S. Attorney Greg Hannstad, who handled the prosecution.

"Haanstad claimed the law does not exempt a malfunction. He claims that it states 'any weapon that shoots more than once without manual reloading, per function of the trigger is a machinegun.' To clarify when I was on the stand, I asked him, 'Are you saying if I take my Great Granddaddy's double barrel out and I pull one trigger and both barrels go off, it's a machinegun?' He went back to … 'any weapon that shoots…'" Savage said.

On the Red's blog, commenters were incensed.

"'Innocent until proven guilty' has been transformed by the ATF into 'guilty until framed,' said LibertyPlease.

Horsley also told WND the 2008 edition of Firearms Law Deskbook quotes from a 1999 case in which the court concluded the law on automatic weapons "is not intended to trap the unwary innocent, and well intentioned citizen who possess an otherwise semi-automatic weapon that, by repeated use of the weapon, by the inevitable wear and tear of sporting activities, or by means of mere inattention, happenstance, or ill fortune, fires more than semi-automatically."

[Rip Van Winkle]

Before everyone gets their undies in a bunch over this poorly written WND article. I would recommend reading the "Affidavit in support of criminal complaint" posted on page 1 http://www.ar15.com/forums/topic.html?b=1&f=6&t=507483

7) Kiernicki explained that the firearm had a selector switch that could be placed in any of three positions. One position was marked "safe", one was marked "fire" and one was unmarked. According to Kiernicki, when the selector switch was in the unmarked third position, the firearm fired in a three-round burst. That is, the firearm was designed so that, when the switch was in the third position, the firearm would automatically fire three shots with a single pull of the trigger. Kiernicki said that he had fired the firearm in the three-round burst position twice, and that it had jammed after the third try.

I don't believe Mr Olofson is as innocent as he tries to make himself out to be in this 33 page thread.

[Pinnacle]

I dont know what to think about this - I would say this - if there is a 3rd position and the appropriate parts inside fro the 3 round burst - then well - GUILTY of possession of a Machinegun

If there is a thir position and no modifications on the inside - then it is just a rifle.

All that I can say is this - Machineguns are not something to mess with unless you have the proper license.

[BRIT_in_the_weeds]

I dont know what to think about this - I would say this - if there is a 3rd position and the appropriate parts inside fro the 3 round burst - then well - GUILTY of possession of a Machinegun

If there is a thir position and no modifications on the inside - then it is just a rifle.

All that I can say is this - Machineguns are not something to mess with unless you have the proper license.

Or have very, very cool friends Thanks again for those Tuesdays, Leslie still talks about them

[Fast351]

Before everyone gets their undies in a bunch over this poorly written WND article. I would recommend reading the "Affidavit in support of criminal complaint" posted on page 1 http://www.ar15.com/forums/topic.html?b=1&f=6&t=507483

7) Kiernicki explained that the firearm had a selector switch that could be placed in any of three positions. One position was marked "safe", one was marked "fire" and one was unmarked. According to Kiernicki, when the selector switch was in the unmarked third position, the firearm fired in a three-round burst. That is, the firearm was designed so that, when the switch was in the third position, the firearm would automatically fire three shots with a single pull of the trigger. Kiernicki said that he had fired the firearm in the three-round burst position twice, and that it had jammed after the third try.

I don't believe Mr Olofson is as innocent as he tries to make himself out to be in this 33 page thread.

Which is ********. 3 round burst requires a ratcheting mechanism to control 3 round burst, which requires machining out a section of the receiver to mount that fire control mechanism, NEITHER of which had been done in this case. (Check out the original test report which I posted copies of in the other thread).

The "3 round burst" that they experienced was a case of 3 round slamfire caused by hammer follow and soft primered ammunition. The fact that it happened to be three rounds is either luck or creative video editing of the firearm test video, and has nothing to do with the components inside the rifle that would be required to actually make the weapon a 3 round burst machine gun.

The precedent that is being set here is that any firearm that malfunctions repeatably and fires more than one round per trigger pull is now a defacto machinegun. Never mind the fact that it could be a malfunction.

[Rip Van Winkle]

This is the last word I'm going to post on this, as I'm tired of it and I'm uncomfortable being put in the position of defending the BATF. I have no love for them (BATF), and I find their spokesman's quote about a double barrel shotgun double firing being a machine gun troubling. However, what the bureaucrats at BATF think and what they can prove in a court of law are two different things.

My personal opinion is this wouldn't have gone as far as it did if there wasn't suspicious behavior at the range and suspicious modifications done to the rifle. A single 3 shot burst wouldn't have raised any eyebrows at the range and the New Berlin Police Dept. wouldn't have sent the rifle to BATF unless they saw something they thought was wrong.

Right now we have Mr Olofson's version of events, court documents he's chosen to post and a very poorly written WND article. One could probably get a better idea of what really happened if they were to get a copy of and read the court transcripts, but then that might ruin a really good, sensational, hand wringing story.

I've already invested enough time and effort on this and I won't be losing any sleep over it.

[hammAR]

Lisa Simpson: "If you're the police, who will police the police?"
Homer: "I dunno, the Coast Guard?"

We've been here before. A Republican administration, mildly allergic to the Second Amendment, is about to give way to a virulently anti-gun Democrat regime. The lying, arrogant and armed bureaucrats of the Bureau of Alcohol, Tobacco and Firearms are eager to curry favor and lick the boots of their incoming masters. The last time this led to Waco and the deaths of 85 innocent people. This time I fear it will lead to something worse.

David Olofson was convicted, despite the facts presented by the defense, on the words of a paid informer and an assistant United States prosecutor who refused to release exculpatory "Brady" material (something he is required to do by Supreme Court decision). There is chance that, if Mr. Olofson is finally able to sustain the costs of an appeal, that this egregious case of ATF and Justice Department misconduct will be overturned. But don't bet on it.

David Olofson is not a household name, even in the community of gun rights activists. He should be. While gunnies have been worried about the Bush administration's petty treasons to the Second Amendment in the matters of the Heller D.C. gun ban case and the appointment of the new anti-gun director of the ATF, Michael J. Sullivan, the decision in the case of US v. Olofson in the United States District Court for the Eastern District of Wisconsin has escaped much attention. Forget Heller. It is, in the grand scheme of things unimportant, trumped as it is by endemic government misconduct. Whether the Supreme Court decides this summer if we are citizens or serfs is immaterial if the abuses of power, constitutional rule of law and even common sense which are evident in the Olofson case are left to stand unchallenged.

What you should be certain of is this: We are now going back, if we ever left it, to the time of Waco Rules.

You remember what they are, surely? "We are the avenging angels of the ATF, representing the god-on-earth Imperial Federal Government. If you resist us, we will crush you. If you shoot back at us, we and our big brothers of the FBI will kill you -- we will burn down your house, your church, your family and all you hold dear, AND WE WILL NOT BE HELD ACCOUNTABLE." Those my friends, are Waco Rules. They can do anything you can't stop them from doing.

You see, it doesn't matter what the Supreme Court decides if we have bureaucratic criminals enforcing the law to suit themselves and the purposes of their antigun financial masters, the Democrat-controlled Congress. Do you really think that Harry Reid and Nancy Pelosi will undertake oversight hearings on ATF abuses? President Hillary, perhaps? This is as likely as George Bush seriously enforcing the immigration laws. The ATF understands this. You should too.

Sheriff Johnny Behan: "You're under arrest!"
Wyatt Earp: "I don't think I'll let you arrest me today, Johnny."
Tombstone, 1993.

Of course, like everything else, the Olofson case is subject to the immutable Law of Unintended Consequences. A reasonable man, observing the outcome of Olofson's case might conclude that there is no point in an honest fellow playing the game of an abusive regime that flaunts the law and manipulates the courts. A reasonable man might conclude that, if he is approached by ATF agents, he should probably consider them as little better than unconstitutional gangsters operating under the fiction of legal pretense. A reasonable man, realizing the system is rigged against him, that the rule of law has broken down and not wishing to go to federal prison for a crime he did not commit, might decide that the best thing to do is refuse to be the victim, right there and then. And you may infer from that whatever you wish.

The Olofson case confirms that we are still living in the time of Waco Rules, so let's not kid ourselves over the maybes of Heller. Supreme Court decisions don't count for spit in the wind to these people. But if the law no longer protects us, it no longer protects them either. Which is something they probably haven't considered, but should, given the Law of Unintended Consequences....................Mike Vanderboegh

[DeanC]

PRESS RELEASE May 14, 2008
BERLIN MAN SENTENCED TO 30 MONTHS IN FEDERAL PRISON FOR TRANSFERRING MACHINE GUN

United States Attorney Steven M. Biskupic and ATF Special Agent in Charge Bernard Zapor, announced that yesterday, David Olofson, Berlin, WI, was sentenced by the Honorable Charles N. Clevert, United States District Court Judge. Judge Clevert sentenced Olofson to 30 months in federal prison for knowingly transferring a machine gun. Olofson was also ordered to serve two years of supervised release upon release from prison and perform community service during that post-imprisonment supervision.

“Today’s sentence is a victory for legal gun owners,” said ATF Special Agent Zapor. “Multitudes of Americans legally possess and transfer machine guns. They have the concurrence of the chief law enforcement officer in their States and have met all other requirements that are part of the National Firearms Act that was created by Congress in 1933 and has changed little since. A blatant disregard of our Nation's firearms laws by someone claiming to be a ‘sovereign’ and not subject to federal gun laws is offensive to responsible gun owners,” said ATF SA Zapor.

The case stemmed from citizen reports of machine gun fire at a Conservation Club in Berlin, WI in July 2006. Local police found a firearms customer of Olofson’s at the Club, and learned Olofson had lent the machine gun to the customer. According to trial testimony, Olofson had acknowledged to the customer that he (Olofson) had fired the gun automatically in the past. ATF was contacted, and they later interviewed Olofson, who acknowledged lending the gun to the customer. Olofson told agents that he regularly loaned guns to people, but did not keep records because it would “be dangerous.”

Olofson acknowledged to agents that he knew how to convert semi-automatic rifles to machine guns, and agents later found conversion information and instructions on Olofson’s computers. Agents also found e-mail exchanges with third parties on Olofson’s computer wherein Olofson discussed machine guns and ways to avoid federal registration requirements for automatic weapons.

During the sentencing, the judge rejected the defense contention that the gun had merely malfunctioned and was not a machine gun, instead finding that Olofson knew the gun was a machine gun. The Court found that Olofson’s military service and the other evidence in the case suggested he was “incredibly familiar” with firearms, and rejected Olofson’s contention that he was unaware of the gun’s capability to fire automatically. “Mr. Olofson has, in this court’s view, shown he was ignoring the law and that he was doing so in part for financial gain.”

The Court also relied, in imposing the 30-month prison sentence, on prior convictions Olofson sustained, including one involving the carrying a concealed, loaded firearm during trick or treating with his children. “You don’t put kids at risk on Halloween, and then deserve the label of ‘good citizen’ who always follows the law,” Judge Clevert commented.

The case was investigated by the Berlin Police Department, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, and was prosecuted by Assistant United States Attorney Gregory Haanstad.

[JohninMinnesota]

“Today’s sentence is a victory for legal gun owners,” said ATF Special Agent Zapor. “Multitudes of Americans legally possess and transfer machine guns. They have the concurrence of the chief law enforcement officer in their States and have met all other requirements that are part of the National Firearms Act that was created by Congress in 1933 and has changed little since. A blatant disregard of our Nation's firearms laws by someone claiming to be a ‘sovereign’ and not subject to federal gun laws is offensive to responsible gun owners,” said ATF SA Zapor.

I'm not buying this is a "victory for legal gun owners"...

The Court also relied, in imposing the 30-month prison sentence, on prior convictions Olofson sustained, including one involving the carrying a concealed, loaded firearm during trick or treating with his children. “You don’t put kids at risk on Halloween, and then deserve the label of ‘good citizen’ who always follows the law,” Judge Clevert commented.

Oh, carrying with his kids present is clearly a huge no-no. Michelle Oblah,blahlblahma and her husband would agree here! I don't agree with breaking the law... in either case. However, don't give me the ******** about it being "good for me too"!

[JoeH]

The press release is obviously one-sided. Still, this appears to be a good bust. He knowingly broke a federal law.

Get caught illegally converting semi-autos to full-auto = go to jail
Get caught illegally carrying a weapon in Wisconsin (right denied State) = crime conviction*

*I'm not surprised by the editorial comments regarding kids and Halloween. It doesn't pertain to him breaking the law but the lefties love this stuff.

[Stradawhovious]

I think that all of these posts are overlooking a very crucial point here.... Regardless of whether or not this rifle was ACTUALLY full auto, a precident has now been set to criminalize those who have a simple rifle malfunction REGARDLESS of whether or not the weapon was designed or altered for full atuo capability. Really the accused rifle is no longer an issue, the fact that all it takes is for one of us to have a hiccup at the range to land us in prison is. WTF?

[Fast351]

The BATFE is an organization with zero oversight or accountability. This is not a win for gun owners, it's a huge loss. The courts had the opportunity to correct some of the problems with the BATFE, but unfortunately chose not to take advantage of the situation.

If you think this is an isolated incident, then take a look at what they're currently doing to CavArms right now....

[rucker]

If you were to, theoretically, have a malfunction like this yourself what are you supposed to do? If it's illegal to simply possess it no matter the cause you are kind of screwed. Can you bring it in to get fixed?

[onebohemian]

How to fix this on a gun that unexpectedly does this is an interesting question that seems to come up on boards from time to time. Like everything else in life, there's two sides to every coin. Some of the more skittish folks would say you should remove the offending hammer and/or sear and toss it into the nearest lake. Others would tell you to spend more time on your DYI trigger job and recut the sear/hammer engagement area to eliminate the unintentional results of your earlier tinkering.

[Stradawhovious]

If you were to, theoretically, have a malfunction like this yourself what are you supposed to do? If it's illegal to simply possess it no matter the cause you are kind of screwed. Can you bring it in to get fixed?

According to the article, you wouldn't have to worry about getting the rifle fixed. Felons, after all, cannot legally possess firearms.