View Full Version : David Olofson back in court....
Oral Arguments in the 7th Circuit Appeals Court:
http://www.ca7.uscourts.gov/tmp/KD13O8XZ.mp3
Story on Lou Dobbs tonight as well.
FWIW.
FromMyColdDeadHand
01-23-09, 05:56
I've never liked this whole story, which I guess is why it is in court. Not saying the guy is guilty, but he does seem like a dumbass. Being a dumbass is not illegal, but dumbasses make for poor heros and test cases.
And hopefully nothing changes. Especially since he knowingly put a full auto LPK in the weapon and even after if "malfunctioned" he lent the weapon out to someone. The guy is an idiot and he played with the systemone too many times.
I've never liked this whole story, which I guess is why it is in court. Not saying the guy is guilty, but he does seem like a dumbass. Being a dumbass is not illegal, but dumbasses make for poor heros and test cases.
SW-Shooter
01-23-09, 08:12
You got your post edited because you chose to be childish.
~The_Katar
What part of "SHALL NOT BE INFRINGED" do you not understand? The simple fact that we allow the government to rewrite the United States Constitution and Bill Of Rights is abhorrent and is no excuse to jump on the left wing soundtrack. If the government wouldn't have violated the Second Amendment this would have never happened.:mad:
Unless I'm horribly mistaken, Olofson himself isn't even using the "Shall Not Be Infringed" defense.
You got your post edited because you sank to his level.
~The_Katar
The guy is a jackoff, self appointed Mr. Helper in the shooting realm. I know these types...
He had several L.E. run ins. He knew what he was doing, and had the balls to come crying on the internuts about how he got shafted over a mechanical failure?
PLEASE!!! Is the law stupid? Yes. But he took the risk when he put FA parts in the gun.
FromMyColdDeadHand
01-23-09, 09:41
I just never understood why this guy became a media darling? I just find it odd that the press would get behind this guy. I'd rather put resources behind people who used CCW to protect themselves and then have problems with the law or the Katrina confiscation-ees.
Maybe the press reports, eventhough taking his side, have not provided all the detials that would exonerate him. If I was not a gun guy and watched the report I'd have to say that guy was not exactly a white knight in the whole thing.
I just never understood why this guy became a media darling?
It is STRANGE!!!
CNN on top of it all!! It was a reverse hit piece.
Here's my conspiracy theory..... stand by.....
CNN wants gun owners to be under the impression that the NRA will do nothing to back up shooters who go up against the Gubment. :eek:
Every time I read a piece on this I feel that something is being left out. Is there a good source of info on this case that is objective?
So, is the contention of the government that he "engineered" the "malfunction" for the express purpose of generating automatic fire? And then informed the recipient of the "malfunction" and lent him the gun?
There HAS to be more this than "his gun broke and now he's in prision."
Katar,
Does that mean I got busted? :D :p
There HAS to be more this than "his gun broke and now he's in prision."
According to the docs, he told the retard that he loaned the gun to that he shouldn't move the selector to the 3rd position because it could fire multiple shots.
So of course the retard did so, and some self appointed NFA enforcer reported the weapon to authorities.
I HATE SELF APPOINTED "Mr. Helpers" and "Range Patrolmen". Both are idiots.
And did this rifle have a "third position?" Do my AR's have a feature I am not aware of?
mmike,
It matters not what is stamped on your receiver. What does matter is the parts that you put in it. If you were to install a full auto selector lever and other assorted parts you too may have just such a situation.
And did this rifle have a "third position?" Do my AR's have a feature I am not aware of?
And did this rifle have a "third position?" Do my AR's have a feature I am not aware of?
No, Man.
This douche bought one of those DPMS A2 burst fire control groups and installed it in some piece of shit OLY arms.
Just installing the fire control group will get you some automatic fire. It's just that there's no auto sear to regulate the hammer drop.
He essentially MADE a machine gun, then loaned it out to some imbecile.
This:
It is STRANGE!!!
CNN on top of it all!! It was a reverse hit piece.
Here's my conspiracy theory..... stand by.....
CNN wants gun owners to be under the impression that the NRA will do nothing to back up shooters who go up against the Gubment. :eek:
Plus it seems like a way for another organization to attempt to gain a few members.
I listened to a recording of the appeal arguments , the defense was weak , flakey,
and seemed to lack confidence.
Olofson had the chance to plead to a misdemeanor , way back at the beginning.
He turned it down , and then went through 3 public defenders during the trial.
:confused:
MisterWilson
01-23-09, 13:48
This:
Plus it seems like a way for another organization to attempt to gain a few members.
I listened to a recording of the appeal arguments , the defense was weak , flakey,
and seemed to lack confidence.
Olofson had the chance to plead to a misdemeanor , way back at the beginning.
He turned it down , and then went through 3 public defenders during the trial.
:confused:
I would attribute that to his public defender more than anything. After reading the original trial's transcripts, I couldn't help but think that his PD glossed over any redeeming details and focused waaaay too heavily on the unnecessary ones.
The District Attorney on the other hand hammered his points home and he won the ballgame.
Had there been adequate legal counsel available, I think that there was a fair chance of things turning out differently.
FromMyColdDeadHand
01-23-09, 14:47
I would attribute that to his public defender more than anything. After reading the original trial's transcripts, I couldn't help but think that his PD glossed over any redeeming details and focused waaaay too heavily on the unnecessary ones.
The District Attorney on the other hand hammered his points home and he won the ballgame.
Had there been adequate legal counsel available, I think that there was a fair chance of things turning out differently.
I'm not saying the guy is guilty, I'm just saying he's a dumbass ;) No doubt a good lawyer could have gotten him out of it, and from what I read, the ATF wouldn't let the defense handle or test the gun themselves during the trial. That's Kafkaesque.
Going to someone and saying "Try this gun, it doesn't work" is like saying "Smell this, it's gone bad". Not good ideas either way.
I don't blame him for not taking the misdeamenor. His @sshole may disagree now. Isn't he in prison with the ex-gov of Illinois? I know I should be more specific, I can't remember his name.
I dunno , we'll see.
Supposedly his current lawyer team is the best that GOA could find to take the case. The oral argument was not particularly impressive , maybe the written brief is better. I'm not convinced that anything short of O.J.'s dream team could have helped him , either at the original trial or at the appeal. The facts and the law just don't seem to be in Mr. Olofson's favor.
We'll see how it turns out.
Try this instead:
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-2294_002.mp3
MarkM, where did you hear that he installed a burst group? I don't think the .gov even claimed as such. You'd think he would have got charged with manufacturing as well if that was the case.
And hopefully nothing changes. Especially since he knowingly put a full auto LPK in the weapon and even after if "malfunctioned" he lent the weapon out to someone. The guy is an idiot and he played with the systemone too many times.
I know David personally.
He is not an idiot in fact, he is a patriotic and decent man. He did not put in a full auto LPK in the fire arm.
Please refrain from attacking his character or judgement unless you know the man.
I do.
I know David personally.
He is not an idiot in fact, he is a patriotic and decent man. He did not put in a full auto LPK in the fire arm.
Please refrain from attacking his character or judgement unless you know the man.
I do.
You wanna tell us what specific fire control parts were in the rifle when it was in the court room.
Hint -- was the defense lawyer at the appeal hearing wrong?
The information you request is contained in the appeal.
That appeal can be found at GOA's sight.
I can tell you that no part in the firearm was illegal and it did not have an autosear.
You may agree with what the prosecuter did, you may not.
The point is if you don't know him it is hard to understand how people can put down him personally.
If you knew him, you wouldn't.
Well since you have come here to be his official spokesman please tell us exactly which parts he installed in the lower receiver and whether they were semi-or auto parts.
A sear is not required to make a gun go full-auto.
Please explain why he gave the weapon to someone to use even after he knew it had fired more than one round with a pull of the trigger previously.
I know David personally.
He is not an idiot in fact, he is a patriotic and decent man. He did not put in a full auto LPK in the fire arm.
Please refrain from attacking his character or judgement unless you know the man.
I do.
Army Chief
01-24-09, 07:13
I'm admittedly uncomfortable with the tenor of this discussion. We're doing extraordinarily well in the interpretations department, but seem to have almost no substantiated facts upon which to base them. Are those even available?
I would be interested in a dispassionate representation of the evidence in this case. I'm a fair-minded guy, and have zero interest in being the first to cast stones, but we're more or less focusing upon Olofson and his actions, which doesn't really explain what was or was not going on (mechanically) inside of the weapon.
Lest there me any misunderstanding, I'm not criticising anyone here for expressing a viewpoint, but the banter has inevitably led to more -- not less -- confusion. Was the LPK really an issue here or not? The government would seem to be suggest that it was. What evidence do we really have to the contrary?
AC
I'm admittedly uncomfortable with the tenor of this discussion. We're doing extraordinarily well in the interpretations department, but seem to have almost no substantiated facts upon which to base them. Are those even available?
I would be interested in a dispassionate representation of the evidence in this case. I'm a fair-minded guy, and have zero interest in being the first to cast stones, but we're more or less focusing upon Olofson and his actions, which doesn't really explain what was or was not going on (mechanically) inside of the weapon.
Lest there me any misunderstanding, I'm not criticising anyone here for expressing a viewpoint, but the banter has inevitably led to more -- not less -- confusion. Was the LPK really an issue here or not? The government would seem to be suggest that it was. What evidence do we really have to the contrary?
AC
I share your concerns about the confusion surrounding the case.
Run a search for the old thread in General Discussion "Felony Conviction for Malfunctioning AR". The thread is around 8 pages long -- trial transcript links and
a link to other court records concerning Olofson's prior cases are consolidated on page 7.
The fire control group and the 180 degree selector are central to the case. The defense ( in court) has never refuted the presence of the M16 fire control group ( less auto sear). The defense claimed that the absence of the auto sear made the rifle a malfunctioning semi-auto rather than a machine gun.
Flakey. The jury didn't buy it.
gbear,
They didn't buy it, because those who understand the M16 FOW know that the sear does not create full-auto or burst. It is the sum of the parts involved. The sear simply makes it happen when it is supposed to.
I share your concerns about the confusion surrounding the case.
Run a search for the old thread in General Discussion "Felony Conviction for Malfunctioning AR". The thread is around 8 pages long -- trial transcript links and
a link to other court records concerning Olofson's prior cases are consolidated on page 7.
The fire control group and the 180 degree selector are central to the case. The defense ( in court) has never refuted the presence of the M16 fire control group ( less auto sear). The defense claimed that the absence of the auto sear made the rifle a malfunctioning semi-auto rather than a machine gun.
Flakey. The jury didn't buy it.
Exactly.
The jury convicted Olofson of transfering a poorly constructed selective fire rifle that malfunctioned ( sometimes) when set to the 180 degree from safe position.
The rifle did not malf in the semi/fire position , only in the " machine gun" setting.
The malf defense just doesn't cut it.
It may have been a sorry jam-a-matic toy , but legally it was a machine gun.
If that guy had been smart he would have taken the misdemeanor deal. 30 months and a felony conviction is a stiff price for one step up from bump-firing.
Drinking latrine lawyer Kool-Aid is ....eh... has some disadvantages.
;)
Army Chief,
Just for the sake of brevity I'd start with the link to the Appeal Oral argument I posted above and then go from there.
You'll hear them mention that Staples case in the audio
STAPLES v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No.92-1441. Argued November 30, 1993-Decided May 23,1994
The National Firearms Act criminalizes possession of an unregistered "firearm," 26 U. S. C. § 5861(d), including a "machinegun," § 5845(a)(6), which is defined as a weapon that automatically fires more than one shot with a single pull of the trigger, § 5845(b). Petitioner Staples was charged with possessing an unregistered machine gun in violation of § 5861(d) after officers searching his home seized a semiautomatic riflei. e., a weapon that normally fires only one shot with each trigger pullthat had apparently been modified for fully automatic fire. At trial, Staples testified that the rifle had never fired automatically while he possessed it and that he had been ignorant of any automatic firing capability. He was convicted after the District Court rejected his proposed jury instruction under which, to establish a § 5861 (d) violation, the Government would have been required to prove beyond a reasonable doubt that Staples knew that the gun would fire fully automatically. The Court of Appeals affirmed, concluding that the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction under § 5861(d).
Held: To obtain a § 5861(d) conviction, the Government should have been required to prove beyond a reasonable doubt that Staples knew that his rifle had the characteristics that brought it within the statutory definition of a machinegun. Pp. 604-619.
(a) The common-law rule requiring mens rea as an element of a crime informs interpretation of § 5861(d) in this case. Because some indication of congressional intent, express or implied, is required to dispense with mens rea, § 5861(d)'s silence on the element of knowledge required for a conviction does not suggest that Congress intended to dispense with a conventional mens rea requirement, which would require that the defendant know the facts making his conduct illegal. Pp. 604-606.
(b) The Court rejects the Government's argument that the Act fits within the Court's line of precedent concerning "public welfare" or "regulatory" offenses and thus that the presumption favoring mens rea does not apply in this case. In cases concerning public welfare offenses, the Court has inferred from silence a congressional intent to dispense with conventional mens rea requirements in statutes that regulate potentially harmful or injurious items. In such cases, the Court has reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him in responsible relation to a public danger, he should be alerted to the probability of strict regulation, and is placed on notice that he must determine at his peril whether his conduct comes within the statute's inhibition. See, e. g., United States v. Balint, 258 U. S. 250; United States v. Freed, 401 U. S. 601. Guns, however, do not fall within the category of dangerous devices as it has been developed in public welfare offense cases. In contrast to the selling of dangerous drugs at issue in Balint or the possession of hand grenades considered in Freed, private ownership of guns in this country has enjoyed a long tradition of being entirely lawful conduct. Thus, the destructive potential of guns in general cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861 (d) as dispensing with proof of knowledge of the characteristics that make a weapon a "firearm" under the statute. The Government's interpretation potentially would impose criminal sanctions on a class of persons whose mental state-ignorance of the characteristics of weapons in their possession-makes their actions entirely innocent. Had Congress intended to make outlaws of such citizens, it would have spoken more clearly to that effect. Pp. 606-616.
If I understand the .gov's 'theory of the case' re the Olofson case: all you need to have is a gun that doubles (which meets the statutory definition of a MG) and NO mens rea required.
Regardless of anyone's personal feeligns about the defendant (he's certainly not Polly Pure from what I was able dig up, he had some prior encounters with LE) I'm more concerned about how this applies to everyone else. Remember who is President now?
If I had a gun double on me at the range, my first thought would NOT be "wow, cool I now have a shiny new MG!". Furthermore had I not been exposed to this particular case my second thought would not have been "i'm now in possession of something is is illegal". I would have assumed like most sane people that I, in point of fact, had a broken weapon that needed fixed.
IMHO the different between and "MG" and a "malfunctioning weapon" is: mens rea
Army Chief
01-24-09, 15:22
... I'm more concerned about how this applies to everyone else. Remember who is President now?
Appreciate the competent assay, and as for your larger concerns, well, I couldn't agree more. This is not the time in our history to be walking on the legal fringes, and clearly cases like these have the power to damage us all.
AC
{quote}
.... ( Snip for brevity)......
If I understand the .gov's 'theory of the case' re the Olofson case: all you need to have is a gun that doubles (which meets the statutory definition of a MG) and NO mens rea required.
... (Snip for brevity)......
IMHO the different between and "MG" and a "malfunctioning weapon" is: mens rea[/QUOTE]
ETA: gbear48 is AKA campperrykid on the akforum.net etc.
I have to respectfully disagree with the first statement , no offense intended because much of the error-net chatter supports that belief and ( not but) a couple of isolated quotes from the transcripts ( out of context ) would seem to point in that direction.
Based on the trial transcripts the gov went to some length to establish mens rea in the Olofson case and the judge's instructions to the jury covered the bases quite well. Often the transcripts do not support the error-net chatter at all.
I share your concerns about a legit hammer follow malf. That's not what happened in the Olofson case.
This cases muddies the waters -- a bad thing for all of us.
I know that what I do based on all of this is:
Bench test disconnector function on new builds and after trigger work.
Test fire with 1 live round followed by a dummy-- check for hammer follow. Etc , etc.
Periodically check for disconnector wear and function.
I don't know of any recent ( last 3-4 years) cases involving pure/legit hammer follow malf's. That doesn't mean there are none. I would be interested in seeing some records on any cases that people can find.
gbear, was out for a few days, thanks for you info.
What was done that established mens rea in this case? That's a sincere question because I'd like this settle in my mind once and for all. I've gone back and forth about it believe.
Are you saying that they proved that he KNEW that what he had met the statutory definition of a MG?
I appreciate your input, thank you sir!
Check out the trial transcripts, and see what you think. It's a lot of stuff to wade thru , but another pair of eyes would be a good thing . Please take a look , I'd like to get your take on the evidence and the instructions to the jury.
I'm not sure that the gov has to prove that Olofson knew the exact statutory definition of a machinegun.
It looks to me like the jury was convinced beyond a reasonable doubt that Olofson knew exactly what the gun would do when the selector was turned 180 degrees from safe.
The truly strange thing in the error-net chatter from Olofson and his groupies
is the " jam-a-matic defense ". The defense expert witness seems to go in the same direction. IMO, it's somewhere between wierd and batshit crazy.
Remember-- the gun did not double in the 90-degree-from-safe selector setting,
this is not the usual PITA worn dis-connector or weak spring malf.
See what you think. Try going in cold , just looking at the trial transcripts , without any more from me.
One more thing that might help to understand the Olofson case.
www.wikipedia.com
Type in: Sovereign Citizen Movement ( Case sensitive ) .
It's a probable factor in some of the bat-shit craziness around the case.
:rolleyes:
FromMyColdDeadHand
02-02-09, 11:21
It is stuff like this that makes me leary of getting a lower marked with a full auto setting. Unless I win the lottery, I'm not getting a sear. If you do get a double and some range moron sees your auto marked lower, have fun starting to explain that one.
Ridge_Runner_5
02-02-09, 12:11
Olympic Arms even said the model that Olofson had came from the factory with M16 parts in it...Oly reported there HAD been a slamfire recall, but reported that Olofson's serial number had not been repaired for the recall notice.
The ATF also reimbursed (that is paid for the thicker headed people) the guy who received the weapon for his testimony, and the guy was I think 17 and already had a rap sheet as long as my arm at the time of trial...
When the ATF tested the weapon for the malfunction, they fired hundreds and hundreds of rounds through it before loading rounds with soft, exposed primers before they were able to get the malfunction to repeat itself.
Your lower could say anything you want on it and it has nothing to do with the fact that he had (or there were) M16 fire control parts in it. Once again the SEAR does not make it go auto, it makes it go auto when it is supposed to.
Had Mr. Dumbass not given the weapon out after it malfunctioned when it had those parts in there we wouldn't be discussing this here now.
It is stuff like this that makes me leary of getting a lower marked with a full auto setting. Unless I win the lottery, I'm not getting a sear. If you do get a double and some range moron sees your auto marked lower, have fun starting to explain that one.
When the ATF tested the weapon for the malfunction, they fired hundreds and hundreds of rounds through it before loading rounds with soft, exposed primers before they were able to get the malfunction to repeat itself.
That should not have been necessary. I too read that the ATF had to work at getting the gun to fire full auto, but I'm not sure how true that is. You don't need soft primers or raised primers to get burst/auto activity.
Some quick Cliff's Notes on the testing from the court records:
First round of tests: Military style ammo with " hard " milspec or semi-milspec clone primers. The rifle fired semi with the selector in the 90 degree position. It would fire one and jam when switched to the 180 position.
Second group of tests: Normal off the shelf commercial .223 ammo , at least 2 brands , maybe more.
Rifle would fire auto.
Any one who wants can dig in to the records , provide details, and cite page numbers etc.
The only sources that I trust are court documents.
Most of the error-net drivel is 180 out from the documented facts.
I was very concerned about this case when I first heard of it. It sounded like
a very serious injustice. , a real concern for anyone who owns a semi-auto firearm.
In reality it's just a self-inflicted legal issue over a dumb law. Nothing more than a chump change tax evasion situation.
According to the GOA site , Olofson refused a misdemeanor plea deal.
Not smart.
Meanwhile , back in the real world , here are some court cases that actually matter:
www.saf.org
The appeal ruling has been published.
Olofson lost.
The ruling is 20 some pages long , short but not sweet.
I'll be back to post a link.
Here's a link to the US 7th Circuit ruling:
www.ca7.uscourts.gov/tmp/ND1FFTKF.pdf
Analysis of Olofson Appeal Ruling
Posted by:Sebastian on May 5th, 2009 | Filed under: Gun Rights, Law
The 7th Circuit Court of Appeals handed down a decision denying an appeal in the case of US vs. Olofson. The Olofson appeal was well argued, but ultimately did not prevail. Let’s look at the issues, in summary:
First issues was in regards to jury instructions. Olofson contends that the jury was given no instructions on the definition of the word “automatically,” arguing that it is distinct from his firearm, which is described as malfunctioning. Olofson’s attorneys tried to get the courts to adopt dicta in other cases, which suggested a different definition. The court goes into a lengthy analysis of what the case law requires, and argues that the case law works against the jury being required to be given an instruction on the definition of automatic. The Appeals Court then goes into an originalist analysis of the meaning of “automatic” as applied to firearms at the time the NFA was adopted. What’s interesting is they argue:
That interpretation clearly forecloses the argument that a weapon is not a machinegun merely because it stopped firing due to a malfunction; indeed, the reason a weapon ceased firing is not a matter with which §5845(b) is concerned. Under that interpretation, however, a defendant can still argue that the reason a gun fired more than one round (with a single pull of the trigger without manual reloading) was due to a malfunction—i.e., the additional rounds fired resulted from a mishap rather than from a regular self-acting mechanism.
What’s important for future cases is this still leaves a defense on the table for someone who legitimately has a firearm which is malfunctioning. As I mentioned in regards to the trial transcript, what sealed Olofson’s fate was his prior knowledge of the firearm’s capabiity before transferring it. That doesn’t make the law right, but that is what it says. I think Olofson’s attorneys were smart to make the argument they did, and if it had prevailed, could have gotten him a new trial with better representation, and carved out a far wider exception for malfunctioning firearms.
The second argument presented in the appeal was that the evidence was insufficient in order to obtain a conviction. In the appeal, Olofson’s attorneys argued that:
Neither the lay testimony, nor the expert testimony, taken in the most favorable light for the government, established that Olofson’s AR-15 was a machinegun according to the Staples definition. As noted above, Kiernicki, the person to whom Olofson loaned the firearm, testified simply that, at the single pull of the trigger, the AR-15 fired three rounds and then jammed.
Relying on the Staples definition of “automatically” that was argued previously, they are attempt to argue the definition of “automatically” adopted in Staples essentially means the firearm malfunctioned rather than fired as a machine gun. The Appeals Court deals with that issue by arguing that the legal standard is:
When a defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the government and will reverse the conviction only if no rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Castaldi
The Appeals Court then goes on to argue that the jury was presented with evidence showing that the firearm in question fired more than one round with a single function of the trigger, and that Olofson was aware of these characteristics, and being aware of both of these, “evidence was adequate to permit a reasonable jury to find beyond a reasonable doubt that Olofson transferred a ‘machinegun’ as defined by § 5845(b).”
The third prong of the appeal was that 17 USC 922 (o) and 924 (a)(2) are unconstitutionally vauge. The apply the Lim standard:
A statute is unconstitutionally vague if it either “1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or 2) fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the statute.
I would argue that a statute that can potentially classify a malfunctioning firearm as a machine gun, which § 5845(b) could be read to do, fails on both counts, when you consider that a constitutionally protected right is at play. Olofson’s appeal does not make a Second Amendment claim, but this ruling would leave the door open to a future case which could claim that because ownership of a semi-automatic firearm is constitutionally protected, that the statute, rather than being vauge, is unconstitutional, because it creates a legal hazard for owning semi-automatic firearms which malfunction.
The fourth prong centers around Len Savage’s exclusion from the courtroom during the testimony of the Government’s expert witness. This gets into the rather mundane Federal Rules of Evidence. Here the Appeals Court rules that the burden was on Olofon (really his attorney at trial) to make the case that the rule allowing Savage to remain in the courtroom, and that the argument wasn’t raised at trial:
Second, Olofson stated that he “would like to have Mr. Savage present to hear” the government expert’s testimony on malfunctions so that he could “rebut or add information” if such testimony was incomplete or incorrect. While no precise incantation is required, we doubt whether those statements advanced the argument that Savage’s presence was essential under Rule 615(3). Olofson did not tell the district court (as he tells us on appeal) that Savage’s presence was of critical import to his highlytechnical defense that the AR-15 malfunctioned. Even assuming that he did make the argument, Olofson did not carry his burden of demonstrating essentiality. The defendant stated that Savage should be allowed to hear the government expert’s testimony so that Savage could “rebut or add information” to any inaccurate testimony about malfunctions, but Olofson did not tell the district court why Savage’s presence was necessary to achieve that end.
The Appeals Court seems to be saying here that the argument wasn’t raised at trial, so it seems to be a bit of a “you snooze, you lose” type situation, but I won’t pretend to be an expert on Federal Rules of Evidence.
The final prong is probably the area where it seemed the government did the most damage to Olofon’s case, which is not allowing for discovery of certain documents, and for not disclosing ATF’s testing procedures. The court rules:
Regarding the first non-disclosed item—the ATF’s internal procedures for test-firing AR-15 rifles—Olofson says he wanted that information because “[f]ailure to follow those procedures by changing the type of ammunition in the second test could demonstrate that the tests had been manipulated to arrive at a reversal of the results of the first test.” We do not see how that information could have exculpated Olofson; section 5845(b) does not require compliance with ATF test-fire procedures in order for a weapon to qualify as a machinegun, nor must the weapon fire any particular grade of ammunition or in the prohibited fashion during the first test-fire.
The Court is basically ruling that the law does not require ATF to document and standardize its testing procedures, and that it is free to do what it did, in retesting the gun until it got the desired result. The court is correct that the law does not require this, but should it? Given the hypertechnical nature of gun design, it probably should have some easily met standard. But that’s something that Congress needs to address. Finally the Appeals Court rules on the ATF documents that were not turned over:
We subsequently ordered that document to be unsealed. That evidence is a 1983 letter from the ATF to the manufacturer of the AR-15 in which the ATF advised the company that the installation of certain M-16 parts in AR-15 receivers may permit the weapon to fire automatically even though an automatic sear is not present. We agree with the district court that the document is not exculpatory: it has no bearing on Olofson’s knowledge of whether his AR-15 was a machinegun.
The conclusion you can’t help but notice that the courts, at least in the 7th Circuit, are reading the law absolutely literally, and are not willing to carve out broad exceptions to the National Firearms Act definition of a machine gun. The Appeals Court hinted that there are still legal protections for folks who do legitimately have malfunctioning firearms, but then in other parts of this decision refute the notion, and argue the literal definition. What it boils down to is that if you have a firearm that fires more than one round per single pull of the trigger, and you know it does this, you need to take it to a gunsmith and get it fixed pronto, because by the strict legal definition, you are in possession of a machine gun.
Still unexplored is what i think is an interesting notion, which is whether the Second Amendment of the United States makes § 5845(b) unconstitutionally broad, since it can apply to a semi-automatic firearm that merely malfunctions. Olofson’s attorneys did not raise that issue in his appeal, so that is still on the table. I think it was wise that they didn’t raise it, since we do not yet have any precedent that there’s a constitutional right to own any kind of firearm other than a handgun. Perhaps someday that issue can be raised, but as it is now, the National Firearms Act doesn’t have much to say about malfunctioning firearms, so fix them quick and quiet if it ever happens to you.
I think it’s important for gun owners to understand the National Firearms Act, and how it is applied as law by the federal courts. Most of us here possess semi-automatic firearms, which can occasionally experience a failure mode that causes multiple shots to be fired with a single action of the trigger. I think it’s important people know what their rights are, and how the law is applied, in case they ever find themselves in this situation. This is from a post from Kurt Hofman yesterday:
[...] you can still be sent to prison for having a malfunctioning semi-auto, because “[i]f you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.” In other words, a malfunction is no excuse, according to the government.
Kurt is correct that, unfortunately, the National Firearms Act makes no provision for a firearm that malfunctions. If it fires more than one shot with a single function of the trigger, it’s a machine gun. You can thank Congress for poor drafting of a law that never should pass constitutional muster in the first place. But it’s not really correct to suggest that you will go to jail if your AR doubles on you at the range in earshot of the Five-O.
The reason that’s the case is thanks to a case known as Staples v. United States, which is a case that’s remarkably similar to the Olofson case. In Staples, The Court ruled that Congress did not eliminate the Mens Rea requirement, and that it had to be considered as applied to gun laws. Mens Rea, translated from Latin, means ‘guilty mind’, or that the criminal had some knowledge of wrongdoing that constituted a crime. From Staples:
We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law abiding, well intentioned citizens to a possible ten year term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” Anderson, supra, at 1254. As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” 342 U. S., at 263. We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).
It’s important to note, however, that Staples demands that the government prove that the defendant understand the characteristics of the firearm they possess as an element of proving the crime. It does not demand that they prove the defendent knew it was unlawful to possess an unregistered machine gun.
We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.
So you are not automatically guilty of possessing or transferring a machine gun if your AR doubles up on you at the range one day, provided you did not understand yourself to be in possession of a machine gun. If such a thing happens to you, however, it would behoove you to fix it as soon as humanly possible, and not fire the weapon until it is fixed. If you are caught and prosecuted with the firearm in the intervening time, the prosecution will have to prove you believed you were in possession of a machine gun, rather than a malfunctioning semi-auto. If your firearm is indeed merely malfunctioning, and there’s no evidence of any attempt at conversation, which would establish your understanding of the firearm as an automatic, the government will likely fail to meet its burden.
In the transcripts for the Olofson case, you can see the government went through effort to established Mens Rea. Here we have the prosecutor in the direct examination of Robert Kiernicki, the kid Olofson was accused of transferring the firearm to:
Q. Okay. And I’m sorry, now what did he tell you about the selector switch? First of all, did he indicate to you whether he knew that that was an automatic function?
A. Yeah, he told me that the three-round burst wouldn’t work and that it would jam up.
Q. Did you know what he meant by “three-round burst”?
A. Yeah.
Q. What did you take him to mean?
A. Three rounds come out of it when you would pull the trigger.
Q. When you pull the trigger once?
A. Yeah.
Q. And when he was telling you this, did he tell you that he had fired it automatically in that three-round burst position and that the gun had jammed on him?
A. Yes.
Kiernicki’s testimony and sworn affidavits were as big a part of the government’s case as the tests the ATF did on the firearm. In fact, without the Kiernicki’s testimony, the government would have had a much weaker case, and would have had to rely on the M16 trigger group as evidence of a guilty mind. I think it’s quite likely a talented defense attorney could have gotten an acquittal.
It’s something to keep in mind, because the hazard of possessing a malfunctioning AR is real. If you go show off to your buddies “Hey look, I can make this three round burst!” even if it’s a worn part causing a hammer follow, you just established a guilty mind. The ATF is not lenient or forgiving in its enforcement of these laws, and it has a long history of pushing court rulings to their limits, or ignoring them entirely, in attempts to get convictions. But, in general, if your AR malfunctions and doubles, you shouldn’t be criminally liable for it if you understand that you have a malfunctioning legal semi-auto, and act accordingly. If you do end up in legal trouble, say nothing until you speak with an attorney. In addition, we should strive to change or repeal the laws that create this type of hazard for ordinary gun owners.
http://www.snowflakesinhell.com/2009/05/05/analysis-of-olofson-case/
Sorry, I forgot to attach a link to those articles online as I did not draft them. I do find them both to be articulate and thoughtful analysis of the issue.
According to what I read and applying it to my non-legally trained self he was found guilty and lost the appeal because he himself in fact knew that the weapon would fire more than one round when the trigger was pulled.
I believe that the court also left room for defense in the case of a true malfunctioning weapon. Sorry I am not going to cry for this clown. he knew exactly what he was doing when he did it.
Heavy Metal
05-10-09, 18:49
Long story short:
If you do not possess a vaild tax stamp for said AR, make sure the selector only works 90 degrees, I.E. Safe and Fire.
Long story short:
If you do not possess a vaild tax stamp for said AR, make sure the selector only works 90 degrees, I.E. Safe and Fire.
And if your gun DOES malfunction, put it away immediately and get it to an AR knowledgeable gunsmith.
TangoChaser
05-11-09, 01:05
If you do not possess a vaild tax stamp for said AR, make sure the selector only works 90 degrees, I.E. Safe and Fire.
While it is always advisable not to have any M16 parts in an AR15, an M16 selector by itself, will not cause an unsafe or slam fire condition.
I do believe in publishing safety recommendations as it pertains to the gun and the law, but I also believe in publishing correct informatiom. We don't need fear mongering amongst ourselves.
Just to keep things "fair & balanced".
;)
Here's a link to one of the Arfcom threads about the continuing Saga of David Olofson , Martyr for the Revolution:
www.ar15.com/forums/topic.html?b=1&f=68&t=748387&page=6
I can't get the link to go direct.
Go to Legal Section , then click on:
US v. Olofson, Part II (Appeal Documents)
Here's the addy to the 7th circuit ruling again:
www.ca7.uscourts.gov/tmp/NE0KYVF4.pfd
I can't get it to work this time.
The first link further up the page worked earlier this morning , but not 5 minutes ago.
Truly amazing.
:p
The information you request is contained in the appeal.
That appeal can be found at GOA's sight.
I can tell you that no part in the firearm was illegal and it did not have an autosear.
You may agree with what the prosecuter did, you may not.
The point is if you don't know him it is hard to understand how people can put down him personally.
If you knew him, you wouldn't.
I don't know him personally and don't care. The gun either goes bang more than once or it doesn't. The man's character, family, whether he was a "good guy," etc. are irrelevant.
The law is actually really simple. If the gun goes bang more than once per trigger pull, it's a machinegun. His apparently went bang more than once after he had dicked with it, he knew it, and did nothing to fix it. He then exposed himself by loaning it out to someone.
The fact that no "part" is illegal is a red herring. Even an autosear isn't unlawful to possess, either ... unless it's possessed along with a gun into which it can be readily installed to make an unregistered machinegun
Long story short:
If you do not possess a vaild tax stamp for said AR, make sure the selector only works 90 degrees, I.E. Safe and Fire.
No, just make sure it doesn't go bang more than once per trigger pull, in any and all positions.
he knew exactly what he was doing when he did it.
Exactly. And his "Mr. Helper" syndrome got him caught. All of that is stupid on his part.... but when he tried to drum up sympathy on the gun forums..... :rolleyes:
thopkins22
05-11-09, 12:15
Not related to Mr. Olofson as I don't have any non semi auto parts in my fire control group.
So all this has got me thinking about disconnectors. Is there a resource somewhere with pictures that show compare these parts as new parts functionally sound, when they're on the brink of malfunctioning, and when they are no longer safe to legally use?
How often should these parts be checked? If they were quality parts in the first place is it even worth checking?
FromMyColdDeadHand
05-11-09, 16:11
Why did he lend the gun to someone else. I've read everything here, but it has been a while. When someone does as many things "wrong" as he did and they win in court I feel better, since I think it makes me safer if I'm doing things "right". Losing the case means that the line is now closer to me. If he had gotten off, I think it would have made having a malfunctioning multifire a no-brainer in regards to legality. From what I've read here in the analysis, if anything it takes less now than it did before to be guilty of making or possessing an FA?
Lord knows I'm not taking dremel tools to FCG parts in the future.
Hey guys. This isn't rocket science. If you do not buy an M16 full auto parts kit and install it into your lower receiver then you more than likely not encounter such a situation. However, if you decide the you really need to do it then don't be surprised if something happens.
Those of you here who understand the system know what parts you can or shouldn't install to make it do what it shoot full auto.
From the GOA site:
www.gunowners.org/a122208.htm
Down around para 16 or so:
Olofson was offered a misdemeanor plea deal and rejected it.
Not smart.
That guy mixed up a nice big batch of shithouse lawyer koolaid -- then he drank the first gallon himself.
In my experience, about 90% of the cases that are accepted by the U.S. Attorney's Office for prosecution in whichever District in the country, are pleaded out. That means that when yo-yo gets a lawyer, and that defense lawyer reads the complaint and the Agent's affidavit then the defense lawyer counsels his client to take the best possible deal from the Government. Of the small percentage that actually go to criminal trial, I imagine that the Government wins 90 plus percent of those. The point being, the Government does not prosecute cases that it can not win, period. That means that the evidence against the accused is most usually OVERWHELMING. Thus dipstick here had an unregistered Class III weapon that he TRANSFERRED to another. Guilty, case closed.
The point being, the Government does not prosecute cases that it can not win, period. Guilty, case closed.
Guilty until proven innocent? What country are we talking about?
Heavy Metal
05-11-09, 22:45
While it is always advisable not to have any M16 parts in an AR15, an M16 selector by itself, will not cause an unsafe or slam fire condition.
I do believe in publishing safety recommendations as it pertains to the gun and the law, but I also believe in publishing correct informatiom. We don't need fear mongering amongst ourselves.
In what way am I fear-mongering? I am offering a fail-safe piece of advice.
It will prevent the disconnector from being disabled.
You can take a full M-16 and put an AR selector and it will fire no more than one shot in spite of the presence of an auto-sear. There are many PD's that do just this with their Army supplied loaner M-16A1's.
As long as that AR safety is present, it cannot go into the thrid position.
Please do not think I am arguing this will make an M-16 poeeseeing an auto-ear and the said hole legal, it won't. This is merely to show the power that one piece has over the whole function of the FCG.
It als shows intent on your part. It also keeps barney fife's from thinking it is something it is not.
HM,
Thanks for posting that. You understood exactly what I was saying.
In what way am I fear-mongering? I am offering a fail-safe piece of advice.
It will prevent the disconnector from being disabled.
You can take a full M-16 and put an AR selector and it will fire no more than one shot in spite of the presence of an auto-sear. There are many PD's that do just this with their Army supplied loaner M-16A1's.
As long as that AR safety is present, it cannot go into the thrid position.
Please do not think I am arguing this will make an M-16 poeeseeing an auto-ear and the said hole legal, it won't. This is merely to show the power that one piece has over the whole function of the FCG.
It als shows intent on your part. It also keeps barney fife's from thinking it is something it is not.
FromMyColdDeadHand
05-12-09, 07:52
In my experience, about 90% of the cases that are accepted by the U.S. Attorney's Office for prosecution in whichever District in the country, are pleaded out. That means that when yo-yo gets a lawyer, and that defense lawyer reads the complaint and the Agent's affidavit then the defense lawyer counsels his client to take the best possible deal from the Government. Of the small percentage that actually go to criminal trial, I imagine that the Government wins 90 plus percent of those. The point being, the Government does not prosecute cases that it can not win, period. That means that the evidence against the accused is most usually OVERWHELMING. Thus dipstick here had an unregistered Class III weapon that he TRANSFERRED to another. Guilty, case closed.
Guilty until proven innocent? What country are we talking about?
Maybe Kmrtsn is being a bit glib. I have heard the same type numbers from a business law prof. His point wasn't that you were guilty until proven innocent, just that the federal system, both in its choice of cases and its investigational powers, brings cases that have a high chance of guilty verdicts. The prof point was, don't get indicted because you are screwed and going to end up in pound-you-in-the-ass-prison.
If all you shoot are lay-ups, your shot percentage is going to be pretty high. Olafson, may be the kindest, bravest, warmest, most wonderful human being I've ever known in my life, but I'm not surprised (but I am saddened) by his outcome. After hearing his case on Lou Dobbs, I was surprised to see all the 'oddities' about the case.
Let's see if my understanding of the case is correct, if he had not told the guy he loaned the gun to that it burst at the 180 setting, thus establishing mens rea, or at least the understanding that the gun was capable of multiple shots, there is a good chance he would have prevailed?
The presumption of innocence is for the Trial Jury. Before one ever ends up with his or her fate in the hands of those twelve the AUSA has read affidavits from the Agent(s), finding merit to the case. In many Districts, a panel of AUSA's have reviewed the case for merit, especially if it is thought that the case is going to trial. Subpoenas and warrants have been issued to collect evidence, then warrants are reviewed and signed by a Magistrate Judge. He or she has been indicted by a Grand Jury of his or her peers, who have looked at the evidence and found probable cause that he or she committed the crime. Next an arrest warrant is issued by an impartial Magistrate, usually that day's duty Magistrate who reads the affidavit and finds probable cause. Then he or she is brought before another Magistrate who reviews the affidavits, the arrest, listens to the defendant's counsel or appoints said counsel, then again finds probable cause and sets the case for trial before a trial judge. So long before anyone ever gets to a jury about thirty people have looked at the evidence and found cause that he or she committed the crime. There are no vacant court rooms and bored Judges waiting to try a case. Every court is booked, every AUSA has a case load. Cases are accepted usually because a plea is anticipated. One is given credit in the sentencing guidelines for saving the Government the cost of a trial and for accepting responsibility for his or her actions. Go to trial, cost the Government hundreds of thousands of dollars, waste a Judge's time, don't be surprised to find yourself inside a Federal Prison.
In my experience, ... The point being, the Government does not prosecute cases that it can not win, period. That means that the evidence against the accused is most usually OVERWHELMING.
Oh, kinda like the Sen Stevens case, eh?:rolleyes:
Heavy Metal
05-12-09, 15:54
HM,
Thanks for posting that. You understood exactly what I was saying.
No problem. And I sincerely apologise for my atrocious careless spelling in my previous post.
I think the point both of us was trying to make was if Olofson had at a minimum (and let me make myself clear, I am not saying one should do only the minimum) an AR-15 selector, this conversation would not be happening and soap-on-a-rope would not be on Mr. Olofsons toiletries list.
Even though there is a valid way to convert an M-16 selector to an AR 'sporter' configuration, I would not own one anyway. Even if it is converted to safe-fire-fire and not safe-fire-auto, I do not want Barney Fife to even begin to get it in that third position. That is an invitation for the man to take your rifle to the evidence room and call the ATF to come pick it up and test it. You might see your rifle again in 6 months to forever if you are lucky.
Just how much does an AR-15 selector cost? Like 10 bucks or so? Even I ain't that cheap! Just suck it up and drive on!
Good question.
Not related to Mr. Olofson as I don't have any non semi auto parts in my fire control group.
So all this has got me thinking about disconnectors. Is there a resource somewhere with pictures that show compare these parts as new parts functionally sound, when they're on the brink of malfunctioning, and when they are no longer safe to legally use?
How often should these parts be checked? If they were quality parts in the first place is it even worth checking?
Part of the answer:
I share your concerns about a legit hammer follow malf. That's not what happened in the Olofson case.
This cases muddies the waters -- a bad thing for all of us.
I know that what I do based on all of this is:
Bench test disconnector function on new builds and after trigger work.
Test fire with 1 live round followed by a dummy-- check for hammer follow. Etc , etc.
Periodically check for disconnector wear and function. ( Hold trigger to the rear while cycling action . Listen for trigger reset when the hammer is released).
Another way: Remove upper , put a chunk of wood rubber ,whatever in front of hammer as padding ( just in case) , hold trigger back & cock hammer back-- there should be a crisp click as the disconnector engages. When the trigger is released there should be a crisp reset as the hammer is handed off to the sear.
I'm sure that someone else can put that in better words and I hope , pic's as well..
I don't know of any recent ( last 3-4 years) court cases involving pure/legit hammer follow malf's. That doesn't mean there are none. I would be interested in seeing some records on any cases that people can find.
NCPatrolAR
05-12-09, 22:14
I don't know of any recent ( last 3-4 years) court cases involving pure/legit hammer follow malf's. That doesn't mean there are none. I would be interested in seeing some records on any cases that people can find.
I'm not sure about cases throughout the US, but I spoke with several of the ATF agents I work with when this case first came online over at TOS. When asked if they would build a case of someone that was expereincing hammer follow. What I was told by several different agents was that there was no way they would waste their time on trying to charge someone that was having a legitimate malfunction issue with their firearm. They did state they would charge someone that was purposefully keeping the weapon in a malfunctioning state just so that they could enjoy the "fringe" benefit of full-auto fire.
Let's see if my understanding of the case is correct, if he had not told the guy he loaned the gun to that it burst at the 180 setting, thus establishing mens rea, or at least the understanding that the gun was capable of multiple shots, there is a good chance he would have prevailed?
Based on what I have read about the case, I don't doubt Olofson is guilty (and stupid). I wasn't espousing his innocence.
Rather I was responding to kmrtnsn's inference that simply because the G brought the case Olofson was guilty. I refuse to accept that because an authority brings a case the defendant is automatically guilty, which, IMO, is a very dangerous thing to do, regardless of their conviction rate. I prefer to weigh the facts.
Austin,
I think that you may have misunderstood what he meant. What I believe he was saying is that they won't just prosecute any case. In other words after everyone involved has reviewed all of the evidence and the consensus is that it's a win then they will bring it. I don't think he was implying that someone is guilty because the case is brought, but rather their belief in winning is high.
Based on what I have read about the case, I don't doubt Olofson is guilty (and stupid). I wasn't espousing his innocence.
Rather I was responding to kmrtnsn's inference that simply because the G brought the case Olofson was guilty. I refuse to accept that because an authority brings a case the defendant is automatically guilty, which, IMO, is a very dangerous thing to do, regardless of their conviction rate. I prefer to weigh the facts.
I'm not sure about cases throughout the US, but I spoke with several of the ATF agents I work with when this case first came online over at TOS. When asked if they would build a case of someone that was expereincing hammer follow. What I was told by several different agents was that there was no way they would waste their time on trying to charge someone that was having a legitimate malfunction issue with their firearm. They did state they would charge someone that was purposefully keeping the weapon in a malfunctioning state just so that they could enjoy the "fringe" benefit of full-auto fire.
I'm glad to see you're so friendly with the enemy....
NCPatrolAR
05-14-09, 00:01
I'm glad to see you're so friendly with the enemy....
You take that crap right back over to TOS.
Heavy Metal
05-14-09, 23:17
I'm glad to see you're so friendly with the enemy....
You have a lot of growing up to do.
OK , same question , one more time.
...(Snip for brevity)....
I don't know of any recent ( last 3-4 years) court cases involving pure/legit hammer follow malf's. That doesn't mean there are none. I would be interested in seeing some records on any cases that people can find.
Court cases , arrest records , whatever.
Got any?
FromMyColdDeadHand
05-17-09, 09:58
Based on what I have read about the case, I don't doubt Olofson is guilty (and stupid). I wasn't espousing his innocence.
Rather I was responding to kmrtnsn's inference that simply because the G brought the case Olofson was guilty. I refuse to accept that because an authority brings a case the defendant is automatically guilty, which, IMO, is a very dangerous thing to do, regardless of their conviction rate. I prefer to weigh the facts.
Austin,
I think that you may have misunderstood what he meant. What I believe he was saying is that they won't just prosecute any case. In other words after everyone involved has reviewed all of the evidence and the consensus is that it's a win then they will bring it. I don't think he was implying that someone is guilty because the case is brought, but rather their belief in winning is high.
My comment wasn't really aimed at anyone or any position in particular, just the issue that telling someone that he knew it multi'd and, did nothing about it is the real Bozo No-no.
As to the ATF, it was the ATFLP (Alcohol, Tobacco, Firearms, Lesbian Porn) it might be at the tipping point for me to join.
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