'Broken gun' appeal cites government's own witnesses

A Wisconsin man who contends he's been imprisoned simply for loaning a broken gun to a friend, asserts in a new court brief that the government's own witnessess support his claim.

David Olofson was convicted of transferring a machine gun, or a weapon that releases more than one bullet with a single pull of the trigger, and sentenced to 30 months in prison. But his case is on appeal to the 7th U.S. Circuit Court of Appeals, because his lawyers argue it was a malfunctioning rifle, not a machine gun, that loosed the shots.

The case arose when Olofson loaned an Olympic Arms AR-15 semi-automatic rifle to a friend, who fired it at a gun range. The weapon reportedly misfired, letting loose several shots at the same time, and drew the interest of authorities.

An initial investigation by the federal Bureau of Alcohol, Tobacco and Firearms found it was not a machine gun. However, in a subsequent retest demanded by prosecutors, the agency determined it was a machine gun.

Defense attorneys, however, said Olofson was aware the gun occasionally misfired and had warned his friend about the possibility.

There is nothing illegal about owning an AR-15 that occasionally misfires, the appeal argued.

Gun Owners of America is pursuing a campaign to help support Olofson's family while serves time.

The group's head, Larry Pratt, said that as his organization's attorneys looked into the case, it was "obvious that a miscarriage of justice has been perpetrated."

"The chief piece of evidence is an AR-15 made by Olympic Arms many years ago," he said. "Olofson had loaned the gun to a young man, who was his neighbor. At a range the gun fired two bursts of three rounds each and then jammed. Normal people would understand that a gun that jams is malfunctioning and seek to get it fixed."

ATF officials have declined to speak with WND on the record. They explain that because of the rules for gun licenses, disputes between a gun owner and the federal agency are considered tax issues, and they cannot discuss them publicly.

The new appeal brief filed today alleges the government's case focuses on whether the rifle is a machine gun or not.

It quotes from the government's claims, "Olofson's gun would sometimes jam after multiple rounds were fired with a single trigger pull, but not before the magazine was completely empty."

"The government provides no record citation for this remarkable statement – that Olofson's gun never jammed before the magazine was emptied – because there is none," the brief says. "To the contrary, the prosecution's witness – Robert Kiernicki, the person to whom Olofson had loaned his AR-15 on July 13, 2007, testified that, on each of two or three occasions when Kiernicki placed the firearm in the third selector position, the AR-15 'shot three rounds or maybe four when I pulled the trigger and then it jammed.'

"When asked by defense counsel whether 'there was more ammunition in the gun' at the time that it 'jammed,' Kiernicki testified in the affirmative. … When asked further by defense counsel whether Kiernicki had 'taken [his] finger off the trigger; [or the gun had] just jammed while [his] finger was on the trigger,' Kiernicki again testified his finger was on the trigger," the brief says.

"The only evidence that the AR-15 would fire more than one shot at the single pull of a trigger was Kiernicki's testimony that it did so as a result of a malfunction before the magazine was emptied of its ammunition, and not, as the government has summarized, simultaneously with the exhaustion of the ammunition," says the brief.

In fact, the defense argues, the precedent-setting Staples case before the U.S. Supreme Court that defines the issues of automatic weaponry was a case just like the Olofson situation. It even involved the same type of gun.

In that decision, the high court found, "The automatic firing capability of petitioner's AR-15 was the result of a malfunction, known as 'followdown' created by the failure of the disconnector to retain the hammer in a cocked position after the discharge of each round."

The brief says, "As was true in Staples, so it was here. There was testimony from both the prosecution and defense experts that Olofson's AR-15 suffered from a 'hammer follow' malfunction."

The government's arguments are based on definitions of firearms that contain mechanisms "designed to enable a firearm to fire repeatedly," the brief says.

The government has argued that any weapon that releases more than one bullet with a single pull of the trigger is an automatic weapon, "no matter what the cause."

Olofson, of Berlin, Wis., surrendered to federal authorities July 2 to begin his prison term, leaving Second Amendment advocates enraged.

Said Pratt, "A gun that malfunctions is not a machine gun. What the [federal Bureau of Alcohol, Tobacco, Firearms and Explosives] has done in the Olofson case has set a precedent that could make any of the millions of Americans that own semi-automatic firearms suddenly the owner [of] an unregistered machine gun at the moment the gun malfunctions."

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