The Accidental Felon

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 who, while shooting at a local range, fired a couple of bursts of automatic fire from the gun just before it jammed.  Someone at or near the gun club called the police to complain about machinegun fire.  The police notified the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and David Olofson, who wasn’t present at the range, was subsequently charged and convicted of illegally transferring a machinegun.

Olofson was not charged with possession of an unregistered machinegun or with illegally manufacturing, modifying, or otherwise making a machinegun, only with illegally transferring a machinegun.  Since everyone agreed that the gun belonged to Olofson and that he had loaned it to the other guy to shoot, the only issue in question was whether the gun was a machinegun.  A much easier case to make 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.

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 disconnector would malfunction resulting in hammer-follow.

The local ATF agent asked that the 5.56 NATO rifle be tested using commercial .223 ammunition with soft primers.  Those tests resulted in intermittent, unregulated, automatic fire and jamming caused by hammer-follow, but this time the FTB concluded that, under strict interpretation of the law, the gun’s malfunction did make it a machinegun.

Anyone experienced with semi-automatic firearms knows how dangerous hammer-follow can be and it is obvious that the ATF testers were also aware of the danger.  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.  In the video, the shooter held the firearm well away from his face and body in obvious fear that the rifle would fly apart at any moment.

 Olofson’s firearms expert was never allowed to touch the gun, but he was allowed to look inside and saw no signs of grinding or tampering.  He recognized that M16 parts were present, but no auto-sear.

In his defense Olofson wanted to point out that ATF had called for a recall of Olympic Arms AR15’s of Olofson’s vintage because the M16 parts had a tendency to cause hammer-follow which could be dangerous when using soft-primered, commercial ammo.  He also wanted to bring up a recent case where ATF ruled that an AR15 converted to fire full-auto and legally registered as a machinegun was not a machinegun because it did not have an auto-sear.  Removing it from the NFA rolls devalued it from a market value of around $20,000.00 to about $1,500.

None of this was allowed into evidence though 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.

The cornerstone of the government’s case was their 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 side-by-side a machinegun if it malfunctioned and fired both barrels with one pull of the trigger.  The AUSA responded by repeating with emphasis, “any weapon which shoots… more than one shot… by a single function of the trigger.”

After looking into this case, talking to David Olofson and Len Savage, and studying the paperwork, I am convinced that an injustice has been done.  That’s why The Firearms Coalition is encouraging folks to contact their elected representatives in Washington to demand that they launch a full investigation.  We are also working with members of Congress to fix the definition of a machinegun.  Until that is accomplished, I encourage gunowners to be especially cautious; a little paranoia can be a healthy thing.

Much more information about this case is available at www.FirearmsCoalition.org.

Permission to reprint or post this article in its entirety is hereby granted provided this credit is included.  Text is available at www.FirearmsCoalition.org.  To receive The Firearms Coalition’s bi-monthly newsletter, The Hard Corps Report, write to PO Box 3313, Manassas, VA  20108. 

©Copyright 2008 Neal Knox Associates