Court denies Olofson’s bid to stay out of jail pending appeal.
David Olofson was convicted in January of illegally transferring a machinegun after a 20-year old AR-15 he had loaned to a friend fired two short multi-round bursts. Last month he was sentenced to 30 months in prison, but his attorney immediately filed an appeal in the Federal Appeals Court for the 7th Circuit. Along with the appeal, they filed a motion to allow the Army reservist and father of three to remain free until the appeal is settled. While Olofson’s appeal could drag out for quite some time, early in June, a three-judge panel of the court said they would not keep Olfson out of jail in the interim.
It is likely that Olofson will remain free for several more weeks due to backlogs in the system, but as soon as the government incarcerators catch up a little David Olofson will have to begin serving his sentence.
This decision is just the latest in a long series of injustices perpetrated against David Olofson. The entire saga has been documented here at FirearmsCoaliton.org and has been compiled within this post for ease of reference.
As always, I will keep you posted as the stories continues.
Written by Jeff Knox, on 05-19-2008 10:36
Olofson Sentenced to Thirty Months
David Olofson, the Army Reservist who loaned a twenty-year old AR15 rifle to a prospective buyer and was charged with illegally transferring a machinegun, was sentenced to thirty months in prison by a Federal Judge in Wisconsin. Olofson, his attorneys, and many legal observers were surprised by the sentence. The long delay in sentencing was interpreted as an indication that the judge was uncomfortable with certain irregularities in the prosecution. They speculated that he was delaying sentencing with the intention of quietly setting the conviction aside, or at least ordering a new trial. Instead he went right in line with the prosecution’s requests and dismissed defense complaints about improperly suppressed evidence.
The case, aside from being a travesty of justice and senselessly destroying David Olofson’s life, has dire implications for anyone who owns any semi-automatic firearm. Under the standards of this case, any gun that malfunctions and fires a multiple round burst is a machinegun and the owner is at risk of prosecution.
At this point Olofson is appealing the conviction based on suppression of evidence. There were two documents that Olofson asked for in discovery and which the ATF refused to provide. They claimed that the documents contained privileged tax information and could not be released; this even though Olofson had copies of both documents from public sources. Since those sources were not “official” the copies Olofson had were inadmissible and since ATF claimed their copies were protected, the judge accepted their word on that and refused to demand the documents be produced.
The first document was a letter sent by ATF to manufacturers of AR-15’s back in the mid’80’s warning them that the parts they were using were prone to hammer-follow malfunctions and suggesting that they should institute a recall to replace the offending parts. The makers of Olofson’s rifle were included in that letter and Olofson’s rifles was manufactured during that time period.
The second document was a letter from the ATF to the owner of a rifle that was legally registered as a machinegun. It informed him that his gun was being removed from the National Firearms Transfer Registry because ATF testing showed that it was not really a machinegun, but just an AR-15 with some M-16 parts in it (just like Olofson’s) that were causing it to malfunction with hammer-follow (just like Olofson’s.) They basically told him that his $20,000 M-16 was really a malfunctioning $1,500 AR-15 and that he should get it fixed. The test and evaluation was signed by the same ATF firearms expert who concluded that Olofson’s rifle was not a machinegun and then retested and concluded that the gun was a machinegun. Both of these rifles were tested by the same examiner within a matter of just a few weeks of each other.
Olofson has found an ATF memo which specifically declares that the warning letter from ATF to manufacturers did not contain privileged information and is not subject to any disclosure restrictions. He has also connected with the guy whose rifle was reclassified and gotten certified copies of those letters and test results.
It seems pretty clear that the judge was misled by ATF and the Federal Prosecutor and that all of the information relating to these letters should have been provided to the court, entered into evidence, and shown to the jury. Based on this fact, the Court of Appeals should, at a minimum, grant Olofson a new trial and actually should simply vacate the whole case. There is just no telling what a court will do though. The more I study some of these court cases, the more I am convinced that our “Justice” System is seriously broken. I am hopeful that NRA or someone else with some experience and money to pay good lawyers will jump into this case now that it is becoming more prominent.
Several months ago, while Olofson’s trial was just getting started, I provided him with information on how to formally request assistance from the NRA Civil Rights Defense Fund. I don’t know if his lawyers ever followed through with such a request. I also brought the case directly to the attention of members of the NRA Board of Directors and NRA staff, encouraging them to take a closer look at the case and provide some assistance or support. Just a short article in NRA magazines might have been very helpful. When a reporter from CNN’s “Lou Dobbs” show contacted NRA after Olofson’s sentencing, he reported that they said they had been watching the case closely and were considering offering assistance.
I should also point out my own failure to help as much as I could have. When a major national magazine asked me to write a comprehensive article on the case, I agreed, but due to my regular workload and some other mitigating circumstances, I never was able to fulfill that agreement. Perhaps a bit more publicity earlier on could have forced ATF’s hand. We’ll never know. What we do know is that if the Appeals Court functions with the same skill and professionalism displayed by the original trial judge, David Olofson, husband, father, and Army veteran, is going to spend years in prison with murderers and rapists simply because he loaned a 20-year old rifle to a kid who managed to cause it to fire a couple of short multiple shot bursts.
If the ATF can succeed at putting David Olofson away, none of us are safe. I attended a friendly side-by-side shotgun shoot recently where guys described occasions when their Parker, Purdy, or Fox had fired both barrels with a single trigger pull. Under the standard demonstrated in the Olofson case, those 100+ year old shotguns are machineguns and their owners are dangerous felons.
This needs to be fixed in the courts and fixed in the congress. There is no excuse for this type of vindictive prosecution.
Written by Jeff Knox, on 02-02-2008 23:26
Links to CNN, Lou Dobbs report on this case:
Note: This is a longer format than our normal Knox Reports. This was written for general public consumption so forgive some of the rudimentary explanations, etc. A shorter, more concise version was produced for Shotgun News and other “gun media,” but we felt it was best to post the full version here.
Here is a link to an image library containing dozens of documents from the case – Click Here. The library also contains a few photo’s of military gear that has nothing to do with the case. Those interested in the details of the case can also read a long-running forum discussion on AR15.com which includes scanned immages of the case documents and comments on the case from Olofson himself. Olofson is known as Bladerunner2347 and posted this information himself as the case was developing. To read the entire 40+ pages of the discussion, click here .
The Accidental Felon
By Jeff Knox
(January 29, 2008) There are several ways for a person to unintentionally commit a felony, but most of them are looked at by prosecutors, judges, and juries as the accidents they are and dealt with accordingly. Such is not always the case however, especially when firearms are involved; for the past 2 years David Olofson has been learning that the hard way. Olofson is a regular guy who happens to be fond of AR15 style sport-utility rifles. He loaned a rifle to a friend. While the friend was shooting it he moved the safety switch to a point beyond the Fire position. The rifle fired a couple of short bursts and jammed. Someone at or near the club called the police to complain about machinegun fire. The police notified the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and David Olofson was subsequently charged and convicted of illegally transferring a machinegun.
Neither Olofson nor his friend was charged with possession of an unregistered machinegun or with illegally manufacturing, modifying, or otherwise making a machinegun. Obviously ATF did not believe they could convince a jury beyond a reasonable doubt that Mr. Olofson or his friend had intentionally altered the rifle to fire full-auto so they prosecuted on the easier charge of transferring. Everyone agreed that the gun belonged to Olofson and that he had loaned it to his friend. That meant that the only issue in question in the case was whether the gun was a machinegun. Since ATF is the final arbiter in determining whether a gun is a machinegun, and the law defining machineguns tends to be selectively interpreted by them, the government had a distinct advantage.
As a matter of fact, when the ATF Firearms Technical Branch (FTB) examined the rifle they concluded that it was not a machinegun. They did find that if the Safety switch was moved beyond its normal range of motion, the gun would fire once and jam, leaving a loaded round in the chamber. They determined that moving the Safety in such a way interfered with the trigger disconnector causing the hammer to follow the bolt as it returned to battery rather than being stopped by the sear; a fairly common malfunction known as hammer-follow.
At the request of the local ATF agent, the FTB tested the gun a second time using a brand of .223 ammunition known for having sensitive primers. Those tests resulted in intermittent, unregulated, automatic fire and jamming due to hammer-follow, but this time the FTB concluded that, under strict interpretation of the law, the gun’s malfunction did make it a machinegun.
The cornerstone of this charge is the government’s contention that it doesn’t matter whether a gun fires multiple shots as a result of malfunction or modification because the law defines a machinegun as; “… any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” While on the witness stand, firearms expert Len Savage asked the Assistant US Attorney prosecuting the case if that would make his grandfather’s old double-gun a machinegun if it malfunctioned and fired both barrels with one pull of the trigger. The AUSA responded by paraphrasing the legal definition of a machinegun with emphasis placed on “any weapon which shoots… more than one shot… by a single function of the trigger.”
Anyone experienced with semi-automatic firearms knows that hammer-follow is a relatively common malfunction which usually does not result in a sharp enough blow to the primer to result in ignition. When it is enough to trigger the primer, the resulting fire is very dangerous for the shooter. Semi-auto firearms are not designed to withstand the stresses of full-automatic fire, particularly unregulated automatic fire. A true machinegun has mechanical systems in place to control the gun’s rate of fire, literally pausing momentarily between shots. A gun firing by hammer-follow does not have these controls and will fire as fast as the bolt spring can cycle the action.
In the Olofson case, the government entered into evidence a tightly edited video clip of one of their testers firing Olofson’s gun for a relatively long full-auto string. The cyclic rate was estimated to be near 1700 rounds per minute, more than twice that of a properly regulated M16. The shooter clearly understood the danger involved as he was holding the firearm well away from his face and body in obvious fear that the rifle would break apart at any moment.
At the government’s insistence, the court refused to allow Olofson’s firearms expert to physically examine the gun; he was only allowed to observe as an ATF employee took the gun through a function check and opened the action to his view. What he saw were standard, unaltered components of the same type and configuration that were included in this particular brand of rifle from the factory over two decades ago; parts that are known by ATF to produce exactly the type of malfunction noted and in response to which ATF had once ordered a safety recall.
In another recent case, ATF removed a gun from the machinegun registration rolls because the gun was manufactured as an AR15 and had been intentionally modified to fire in full-auto mode using the hammer-follow method. ATF ruled that such a gun was not a machinegun, but a semi-auto in need of repair. By removing the gun from the NFA rolls ATF devalued the gun from a market value of around $20,000.00 to about $1,500.
Olofson’s judge and jury were not allowed to learn about either the ATF ordered recall or the reclassification of a rifle like Olofson’s as not being a machinegun, because ATF and the US Attorney claimed that such information was prohibited from disclosure by tax privacy laws. This contention now appears to be patently false and the judge has egg on his face for not making the government prove their privacy claim.
I don’t really know David Olofson and I have no personal knowledge of any of the facts in this case. I have spoken with Olofson, reviewed the case documents and spoken with Len Savage, the firearms expert who was present for most of the trial. From those interviews and documents I can not determine with any certainty the complete facts of this case. What I am certain of is that David Olofson was convicted on flimsy evidence without a proper opportunity to present a reasonable defense. If the government can destroy his life for nothing more than loaning a malfunctioning rifle to a friend, then no gun owner is safe from the threat of government agents.
David Olofson is a decorated Army veteran and member of the Active Reserves with over 16 years of service. He has a wife and three kids, including a new daughter born in the midst of this mess. Olofson is a firearms rights activist who has been willing to fight the system and face arrest for exercising his legal rights. He has won those fights and forced the police to obey the law when they were inclined not to. Now he has been convicted of a crime that doesn’t appear to have been a crime at all and is on the verge of losing his Army pension, his right to own firearms, and his very liberty.
Olofson is working on an appeal of this travesty and if there is any justice left in our system this conviction will be reversed. That won’t undo the damage that has been done and you can bet that the overzealous government employees who perpetrated this abomination will not be asked to pay restitution or even have negative remarks put in their personnel files.
The Firearms Coalition is encouraging concerned citizens to contact their elected representatives in Washington and demand that they take a closer look at this case and launch a full investigation. We are also working with members of Congress to get the definition of a machinegun clarified so this type of harassment won’t be facilitated by the letter of the law in the future. Until that is accomplished, I encourage gunowners to be especially cautious; a little paranoia can be a healthy thing.
If you think something like this couldn’t happen to you, consider another recent case where an anonymous tip (read crotchety neighbor, disgruntled ex, or hoplophobic co-worker) called federal authorities and claimed that a young man possessed machineguns. ATF and the local police showed up, went through the man’s collection, and confiscated an “assault weapon” for testing. The fellow knows that the gun was semi-auto when ATF took it, but after learning about David Olofson’s odyssey he is very concerned about what the Firearms Technical Branch’s conclusion will be.
Interested persons wishing to delve deeper into the Olofson case can find more information and much of Olofson’s documentation in an extended forum discussion at AR15.com. Olofson is the poster known as Bladerunner2347. To go to the discussion, click here. To browse through the documents without commentary, click here.