Accidental full-auto is NOT a crime

[HolyRoller]

I was going to sound "To The Colors" and hoist the BS flag in the General Discussion thread about the guy who got convicted of illegally possessing a machine gun after it "malfunctioned, setting off three shots before jamming. ... That means now that anyone whose weapon malfunctions is subject to charges of having or handling a banned gun, according to an expert [uh-huh, of course] witness who reports that the particular problem is a well-known malfunction and was even the subject of a recall from the manufacturer." That piece was from WorldNetDaily, which I gave up on years ago, and any thread that starts with a WND piece ought to be either immediately poofed, or kept open long enough for the truth to come out. As it was, the thread got locked before anybody could post the correct law and facts.

First, possession of a machine gun is not a strict liability crime. The government has to prove you knew it was capable of full-auto. A very interesting case last year was United States v. Nieves-Castano, 480 F.3d 597 (1st Cir. 2007), case number 06-1517 if you want to look it up at the First Circuit site www.ca1.uscourts.gov yourself. The Puerto Rico Police served a search warrant on the nice lady's apartment, looking for drugs and paraphernalia. The didn't find any, but they saw her chunk a golf bag off the back balcony, which they recovered. She admitted she was hiding the bag for a friend, and had looked inside it once and seen an AK. Also in the bag were two regular AK mags and a drum mag. The FBI test-fired the AK and found it was select-fire, which they had suspected because of a small hole in the receiver between the fire and safe positions of the selector lever. But they had no evidence that the defendant ever took it out of the bag and examined it or fired it or even touched it at all.

The defendant was convicted at trial of possessing a machine gun per 18 U.S.C. § 922(o), and she appealed to the First Circuit, which covers Puerto Rico, Maine, New Hampshire, Rhode Island, and worst of all Massachusetts. Would you believe, they walked her. They cited two cases where gun collectors who knew that select-fire weapons have three selector positions (okay, so the opinion said "three selector switches" but at least they're trying), or had fired the weapon in question, knew they had some rock-and-roll on hand, and their convictions stood. But there was no evidence that Ms. Puerto Rico had fired the AK, or was any kind of gun nut who knew what to look for, or had seen the teeny hole in the selector track at all, much less knew what it might mean. The firearms examiner testified that even an expert could only suspect that the AK was select-fire from the little hole, and had to test-fire it or tear it down to be sure. Also, the drum mag meant nothing, because it only COULD be used in a full-auto gun and was no proof that the AK really WAS full auto. Conviction reversed.

oh, wait a minute--she was in a school zone when she jettisoned the AK, and even though she argued that the Criminal Free-Fire School Zones Act was unconstitutional, she didn't win THAT one, so please take this lady back to the trial court for resentencing. If this were an ordinary good citizen I'd be mad, but she was obviously hiding stuff for people she shouldn't be hiding stuff for, so never mind.

With this in mind, let's look at the documents that Mr. Olofson is so exercised about. From the Affidavit In Support Of Criminal Complaint by ATFE Special Agent Jody M. Keeku (that's got to be a stage name):

6. At approximately 9:30 am on July 16, 2006, Officer Zache [who had responded to the range where the Oly in question was fired] spoke with Kiernicki at his home. Kiernicki stated that the Olympic Arms, serial number [deleted, out of respect for those of you who think that listing serial numbers online will magically cause U.S. Emperor Janet Reno to raid your house] belonged to David Olofson. Officer Zache inspected the firearm, and found that it was the same one that Officer Splittegerber had inspected at the range.

7. Kiernicki explained that the firearm had a selector switch that could be placed in any of three positions. One position was marked "Safe," one was marked "Fire," and one was unmarked. According to Kiernicki, when the selector switch was in the unmarked third position, the firearm fired a three-round burst. That is, the firearm was designed so that, when the switch was in the third position, the firearm would automatically fire three shots with a single pull of the trigger. Kiernicki said that he had fired the firearm in the three-round burst position twice, and that it had jammed after the third try.

Aha--so an Oly with a Bubba three-round burst conversion jammed. I'm so surprised, I think I'm going to have a heart attack. This is also not the same as an otherwise semiauto-only rifle having a FCG hiccup. But let's see what else was left out of the WND story ...

Kiernicki explained that Olofson had loaned the firearm to him until Kiernicki takes possession of one he ordered from Olofson. Kiernicki explained that he had ordered a firearm from Olofson sometime in 2006. After the firearm arrives, Olofson will contact Kiernicki and then the two of them would assemble it. Kiernicki told Olofson he didn't want the extra "pin" in it like the Olympic Arms, serial number [same], to make it fire three-round burst.

mmm hmmmm ...

11. On July 14, 2006, Olofson contacted Berlin Police Department Captain Kevin Block to inquire about his firearm in their custody. Captain Block explained to Olofson that the firearm had been taken from Kiernicki and that the case was now being investigated by ATF. Olofson stated that the Police Department didn't even know what they had (referring to the firearm). He stated that if ATF thought that his [Oly] was something, they should see the other firearms he has. Olofson told Captain Block that he has hundreds of firearms, including a .50 caliber sniper rifle.

Clearly, we are dealing with a genius of the first order.

13. On July 14, 2006, I inspected the [Oly] and found that the selector switch moved through all three positions. I then inspected the bolt and observed that it had been filed down. I then performed a functions check and found that the firearm functioned in all three positions, including the unmarked third position.

...

17. On November 6, 2006, a Firearms Enforcement Officer with ATF test fired the [Oly]. The Officer used 60 rounds of commercially available, .223 caliber ammunition. Three tests were performed, each with 20 rounds of ammunition. When the selector switch was placed in the unmarked third position, the firearm fired all twenty rounds automatically in each of the three tests.

Typical Oly--works most reliably when you don't want it to.

Soooo--we have somebody who lends an illegally converted rifle to a customer at a public range ("don't move the selector to the third position please, pretty pleeeeease"), and in the hearing of everybody else at the public range, it goes full auto. Some hater calls the cops, and since plenty of witnesses were there, and the defendant himself says "hey you think THAT's something, you should see all my OTHER guns, including my FIFTY CAL!!!", ATF can get probable cause to take the rifle and swear out a search warrant. Duhhhhh. I don't see how that's an illegal search and seizure. I'm glad he's not asking for money for the appeal, since he's doomed based on the documents HE posted HIMSELF.

All that said, the law against full auto is a stupid law and ought to be changed. I hope against hope he wins on appeal. If I'd been on the jury, the instant we got to the jury room, I'd explain about jury nullification and would never have voted to convict.

[Robb Jensen]

This was already posted today in the GD.