A Wisconsin man sent to prison for having a malfunctioning semi-automatic rifle is awaiting word from the 7th Circuit U.S. Court of Appeals on whether he’ll have to serve the rest of his 30-month term.
Constitutional lawyer Herb Titus, who recently argued on behalf of David Olofson before the appellate judges, told WND a ruling is expected at any time, although there’s no immediate deadline.
The focal point of the case was the malfunctioning weapon, which Olofson had loaned to an acquaintance. The transaction prompted federal charges for transferring a “machine gun.”
According to the government, Titus said, “Olofson’s malfunctioning semi-automatic rifle functioned as a machine gun because it fired more than one shot at the single pull of a trigger.”
However, Titus contends the government’s position is contrary to fact, established law and precedent.
The government even, in Olofson’s case, applied a definition “contrary to the Bureau of Alcohol, Tobacco, Firearms and Explosives own definition in a guide to law enforcement,” Titus argued.
“Under [this] government definition, regardless of the reason,” a gun is a machine gun if more than one bullet is fired with a single pull of the trigger. That could apply to grandpa’s double-barreled as well as the local police sidearm, if it malfunctions similarly, he said.
The normally accepted definition of a machine gun is a weapon that will fire repeatedly until the trigger is released or the ammunition exhausts. But in Olofson’s case, the trigger was pulled, a couple of shots were fired and the gun jammed. Written arguments submitted on Olofson’s behalf noted that the federal agency initially couldn’t repeat that.
It wasn’t until the government reported a change in the type of ammunition used that it succeeded in getting the AR-15 rifle to fire more than one shot with a pull of the trigger.
“By this time, the weapon had been in the hands of the ATF for four
months. What caused the functional change in the weapon to fire as it had not done
before is unknown, although the ATF agent did acknowledge that the change in the
outcome from the October test resulted from a change to ‘softer primer’
ammunition,” the pleadings said.
“The question before this court on appeal is
not ‘whether a machinegun that occasionally jams falls within the purview of [federal law.]’ Rather, the question is whether a semi-automatic firearm is a
machinegun solely because it could be fired more than one shot at the single pull of
a trigger, when such firing occurred as a result of a malfunction,” the pleadings said.
“If a firearm were designed to fire automatically, but for some reason failed to expel
the last round from the magazine, that would be evidence it was a malfunctioning
machinegun … not because it ‘shoots’ automatically,
but because it is ‘designed’ so to shoot. If, however, a firearm is designed as a
semi-automatic, such as Olofson’s AR-15, then the question posed by the
government’s hypotheticals are irrelevant to the issue in this case,” the brief said.
The defense has explained that the rifle involved, the AR-15, is made with some of the same parts as the automatic M-16, and the problem was caused by “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.”
WND reported earlier when the Gun Owners of America launched a campaign to help support Olofson’s family.
Olofson, of Berlin, Wis., surrendered to federal authorities last July to begin his 30-month prison term.
“A gun that malfunctions is not a machine gun,” Larry Pratt of Gun Owners of America said that the time. “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.”
ATF officials have declined to speak with WND on the record. They explain that because of the rules for gun licenses, such disputes between a gun owner and the federal agency are considered tax issues, and they cannot discuss them publicly.
Titus said other issues were raised on appeal, including the trial judge’s refusal to allow a defense weapons expert, Len Savage of Historic Arms, examine the gun.
But gun advocates were alarmed.
“It didn’t matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier … that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back,” said a commentary in Guns Magazine on the case.
“It didn’t matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn’t even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today,” the magazine said. “What mattered was the government’s position that none of the above was relevant because ‘[T]here’s no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.’
“No matter what the cause.”
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WND Staff