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.