Army Reservist Convicted of Felony for His Rifle Malfunctioning at Range

weslinder · Mar 25, 2008

Lou Dobbs Report Part #1

Lou Dobbs Report Part #2

Admittedly biased source: Firearms Coalition

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.
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Army Reservist Convicted of Felony for His Rifle Malfunctioning at Range

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