PDA

View Full Version : US vs Olofson -misfire semi-auto = machine gun


HvyMtl
February 3, 2009, 05:08 PM
This is sad. A Military Vet, honorably discharged, serving in the Reserves. Has a LEGAL AR15, semi-automatic rifle. It is defective and misfires, allowing more than one shot per trigger pull.

The ATF arrests him and the Justice Department goes after him and gets a CONVICTION, on an improper definition of what a machine gun is.

IF you own any semi-auto weapon (say a Glock 17, or a PX4 Storm, or a Taurus 24/7, or an AK, or AR15, M1a, FAL, etc.) that is defective, and therefore allows more than one shot per pull of the trigger - you are a law breaker under this Court decision, and can be prosecuted and imprisoned!

http://gunowners.org/svtb.htm

Lou Dobb's coverage.

http://gunowners.org/a122208.htm

Gun Owners of America is paying for Olofson's defense.

CALL YOUR REPRESENTATIVES AND ASK THEM TO SPEAK OUT AGAINST THIS INJUSTICE.

hogdogs
February 3, 2009, 05:17 PM
Are you talking of an appeal? This is an old case in which he was found guilty.
IBTL!
Brent

vranasaurus
February 3, 2009, 05:35 PM
This has been discussed.

The rifle had a third firing position for auto fire. The person he transferred the gun to testified that olofson told him about the third firing position. It wasn't a malfunction.

He did not serve as honorably as portrayed. He hacked into the government computer system and used it for his militia groups website(for which he was reprimanded), and he was recruiting members of his reserve unit for his militia unit. Based upon his conviction and his previous misconduct he would likely receive an Other than Honorable discharge through an administrative separation proceeding.

Please don't buy the bull that this guy and his supporters would have you believe. Take your tin foil hat off, the black helicpters are not coming for you.

Wildalaska
February 3, 2009, 06:02 PM
Sigh...report post button hit.

WildthesquealerAlaska ™

Mike Irwin
February 3, 2009, 09:14 PM
I'm going to leave this open because these items are current.

It's currently winding through the appeals courts as the links note.

I didn't find anything here at TFL regarding his appeals.

vranasaurus
February 3, 2009, 10:06 PM
Here is my understanding:

The defense says that because it jammed when it fired automatically it doesn't meet the technical definition of a machine gun. They are not saying that it malfunctined to fire automatically they are saying it is not a machine gun because by definition a machine gun must fire until the trigger is released or it runs out of ammo and since it jammed it didn't do either of those two things. It stopped firing when it jammed so it can't be a machine gun. The defense admits that it fired automatically.

I can see through that argument and so can anyone with any sense. If it was modified to fire automatically and jammed when doing so it is still a machine gun. I've seen an M249, M2, and M60 all jam before expending their ammo or the trigger being released. Does this mean they aren't machine guns.

In my eyes a machine gun is any weapon that is designed or modified to fire automatically. Since testimony at the trial established that the weapon in question had a third firing position it was clearly modified to fire automatically and is thus a machine gun.

The defenses argument would also mean that a weapon that fires 3 shot burst wouldn't technically be a machine gun. Because it doesn't fire until the trigger is released or it runs out of ammo.

HvyMtl
February 4, 2009, 12:00 AM
The critical issue here is the DEFINITION used.

The definition used for machine gun - which got the conviction, (summarizing) any firearm that fires more than one round per trigger pull, even if the firearm is malfunctioning, is a machine gun.

THAT IS THE CRITICAL issue - because, if the conviction is allowed to stand, anyone with a malfunctioning semi-auto firearm (say a Taurus 24/7, or a Glock, or a FAL, or M1a, or AR15, etc.) that shoots more than one round when the trigger is pulled once is in violation of the law and can be arrested... for a defective gun.

Gun shop owners, how would you like to have to report every defective gun that does this to the ATF?

Do any of you think for one moment innocent people will not be arrested under the new precedent? Anyone not think the ATF or Justice Dept are pro-gun ownership and wont use this?

True, the fellow may not be the hero Lou Dobbs makes him out to be. But the definition used will replace the present, more realistic one. Having the guy go down under a poor interpretation of the law does no law abiding citizen any good, even if he would be guilty under the older, more realistic view of what a machine gun is...

It is present news as his appeal process is presently going on. Arguments have recently been heard.

Side note: Who woulda thought CNN and Lou Dobbs would be so pro 2nd A???

nate45
February 4, 2009, 03:41 AM
THAT IS THE CRITICAL issue - because, if the conviction is allowed to stand, anyone with a malfunctioning semi-auto firearm (say a Taurus 24/7, or a Glock, or a FAL, or M1a, or AR15, etc.) that shoots more than one round when the trigger is pulled once is in violation of the law and can be arrested... for a defective gun.

I don't think the facts of the case support a need to worry about that.

I read the briefs that the GOA lawyers submitted for the appeal, I don't see anything that refutes the major points of the initial government affidavit.

You can read this thread where we went over it last July.

Owner of broken rifle surrenders for 30-month sentence (http://www.thefiringline.com/forums/showthread.php?t=300808&highlight=Olofson)

http://www.TheFiringLine.com/forums/attachment.php?attachmentid=41904&d=1233736166
http://www.TheFiringLine.com/forums/attachment.php?attachmentid=41905&d=1233736283

Now either points 13 and 17 of the sworn affidavit are false and fictitious, or Olofson broke the law. If the OP and the GOA are contending that the government lied and made its evidence up out of whole cloth, where is the evidence that proves that claim?




41905
41904

Wildalaska
February 4, 2009, 03:52 AM
THAT IS THE CRITICAL issue - because, if the conviction is allowed to stand, anyone with a malfunctioning semi-auto firearm (say a Taurus 24/7, or a Glock, or a FAL, or M1a, or AR15, etc.) that shoots more than one round when the trigger is pulled once is in violation of the law and can be arrested... for a defective gun.


Is that what the issue is? Have you read the briefs?:cool:

WildolookitsoneofthebersatalkfolkscomingtovisitAlaska TM

HiBC
February 4, 2009, 04:46 AM
I have fired an AR with a Jewell from the factory.For the owner,no problem,but,with my trigger squeeze,it would double tap occasionally.

Unsettling,unsafe,bad for concentration.No intent,just a malfunction.

I had a new Norinco SKS multipop a few times.A clean and lube fixed it

I want squeeky clean legal,no trouble.

Do we have to sweat prison over an honest malfunction of non-modified semi-auto parts?

vranasaurus
February 4, 2009, 08:54 AM
It had a third selector position and fired more than one round per pull of the trigger. That is a machine gun. There was no malfunciton that caused it to fire this way. What is it about this that some people cannot understand?

KChen986
February 4, 2009, 10:40 AM
As we see from the affadavits, the selector switch moved to the third position, which then made the rifle shoot in burst capacity. This makes is suspect beyond 'malfunction.'

My 2 cents.

Al Norris
February 4, 2009, 01:12 PM
While I know, in a general manner, the differences between an M-16 and an AR-15, I'm not savy in the technical aspects... Such as what is required for the selector switch to be moved into the third (and presumably auto or burst mode) position. My laymans assumption, if the selector is an original part, is that something which must have been modified on the receiver?

If that assumption is true, then despite any fact that no M-16 parts were ever ordered (as contended and not rebutted), Olofson modified his AR-15 to enable the selector to move into the third position.

Assuming arguendo, then what effect, if any, would this have on the function of the rifle? Would this alone cause the rifle to fire in burst mode or auto fire mode?

hogdogs
February 4, 2009, 01:21 PM
Al, It is my little understanding that mods to bolt/sear or other internals can put some semi rifles into full auto battery capacity... I may be completely wrong and if so admit lack of official knowledge on this...
Brent

maestro pistolero
February 4, 2009, 01:31 PM
(If) Olofson modified his AR-15 to enable the selector to move into the third position.. . . . .Would this alone cause the rifle to fire in burst mode or auto fire mode?

My understanding is no. A full auto trigger group, and removal of material within the receiver is also necessary.

Al Norris
February 4, 2009, 02:09 PM
Does anyone have a link to the Governments appellate brief? I couldn't find a link over at the 7th circuit website.

The reason I'm asking all this?

Did the Government prove that Olofson modified the receiver and other components? According to the brief posted above, there were only 3 M-16 parts (original parts of this particular firearm, placed by the manufacturer) and they were not enough to produce auto-fire except through a malfunction.

If this is in fact true, then the decision could very well come back to bite us all: i.e. That any firearm that produces more than a single shot with a single pull of the trigger, is an automatic firearm, regardless of malfunction or not.

Currently, it is my understanding that the Government did prove that Olofson modified the rifle beyond what is being portrayed.

nate45
February 4, 2009, 02:46 PM
Does anyone have a link to the Governments appellate brief?


No, but I found the sentencing memorandum and it contains information that will likely appear in the governments appellate brief. Here is a link and an excerpt.

GOVERNMENT’S SENTENCING MEMORANDUM (https://secure.jsonline.com/CommunityServer/blogs/proofandhearsay/olofson-usa-memo.pdf)



Olofson’s firearm fired automatically because, although it was a semiautomatic AR-

15, it had M-16 fire control components. More specifically, the firearm had an M-16 trigger,

hammer, disconnector, and selector. Olofson’s firearm was not manufactured with that

configuration of M-16 fire control components. Tr. 120, 136-37.

Olofson was aware that those M-16 components were in his AR-15 and that it was

those components that caused his firearm to fire automatically. E-mails and other

documents on his computer showed that he had ordered M-16 parts. And he had a manual

that described how to convert a semiautomatic AR-15 to an automatic M-16 by substituting

the very M-16 parts that were in Olofson’s converted machinegun – that is, the hammer,

the trigger, the disconnector, and the selector. Tr. 74-80. Olofson knew that his firearm

fired automatically and, given this evidence, likely was the person who made the

conversions that allowed it to do so.

Olofson characterizes his gun as a “malfunctioning AR-15.” Def. Sent. Memo. at 6.

Olofson’s gun was “malfunctioning” only in the obvious sense that, by firing automatically,

it was not functioning as a semiautomatic AR-15 is designed to operate. If Olofson means

to suggest by use of the term “malfunctioning” that the automatic fire capability of his gun

was inadvertant and was something about which he had no knowledge, such a position has

no support in evidence and is flatly contrary to the jury’s unanimous verdict. Olofson’s

claim of “a conviction by technical application of the law” and his argument that there was

no “intent behind the violation of law” similarly miss the mark. Def. Sent. Memo. at 6.

Wildalaska
February 4, 2009, 03:21 PM
Al I found the governments sentencing memo and while obviously biased in favour of the governments interpretation, it can be seen there that the jury surely could have believed Olafson knew what he was doing, especially with the evidence adduced and the jury being the trier of fact and judge of credibility....

This email from Olafson cited in that brief says it all:

"MG’s [machineguns] are just the small toys one can get. Remember, as a Sovereign you are unhindered by the regulations that the federal citizens have to follow. There is a separate set of paperwork dealers must fill out to cover there [sic] butts on where the weapons and other items went. That is what a Sovereigns alien ID number dose [sic] for him. It’s just a way of accounting for where it went. Yes you can build any weapon you like. To
learn more, especially details on the paperwork you should learn more about Sovereignty first. After some basic knowledge we will walk you through everything the first time to help you get the hang of it. Finding real freedom for the first time is like a babies [sic] first steps. You haven’t really done it before so you don’t’s know what it’s like. But we can change that. Then you can literally do most anything you want so long as it interferes with no others rights or person."

https://secure.jsonline.com/CommunityServer/blogs/proofandhearsay/olofson-usa-memo.pdf

What that memo demonstrates (if a fair construct of the evidence) is Olafson was an anti government zealot with a prior criminal history who knew what he was doing. The jury heard the proof and convicted him. The existence of these threads claiming him to be a martyr demonstrates nothing more than blind adherence to the gunwoobie instead of critical thinking.

The appeals Court will have it's say. Then we should revisit it. I may be wrong in what I have seen and if so, I will join the chorus. But right now, he is a convicted SCUMBAG who's actions with firearms were no different that the rest of the street thugs who blacken the reputation of all gun owners...the difference between him and the other thugs is that he is white and shares political views with many gunwoobieites.

My suggestion is that these threads should be locked until the Coircuit Courts decides.

WildhumblysubmittedAlaska ™

Technosavant
February 4, 2009, 03:21 PM
While I know, in a general manner, the differences between an M-16 and an AR-15, I'm not savy in the technical aspects... Such as what is required for the selector switch to be moved into the third (and presumably auto or burst mode) position. My laymans assumption, if the selector is an original part, is that something which must have been modified on the receiver?

The parts which differ between an AR-15 and a full auto M-16 are the trigger, hammer, disconnector, auto sear, and selector switch (there's another couple parts for a burst fire rifle). The bolt carrier is also different, but a full auto bolt carrier itself is not an attempt to make a FA weapon- many folks with semiauto ARs prefer FA carriers and that alone won't cause squat.

From everything I've read about this case, the guy had willfully installed an FA fire control group into a semiauto receiver (missing an extra hole for the auto sear and maybe another cut on the inside- don't remember about the cut). When placed into the full auto position, the selector switch engages the auto sear, which is then tripped by the bolt carrier when it reaches its fully closed position (that is where the difference between a semiauto and fully auto BC lies; the FA one has the lower rear machined to a very specific point- SA ones will either have more material, less material, or no material there, making it impossible for one to trip the auto sear if one were present).

A semiauto trigger, hammer, and disconnector don't even have the ability to be mated to an auto sear without modification.

The repeated firing in this case was not caused by a slamfire. It was not caused by legitimate broken parts. It was caused by installing parts which were not legal to install and then refusing to remedy that situation when it became clear that the rifle did fire full auto bursts.

As stupid as the NFA may be, it's still the law and this guy was clearly in violation of it. There's a long way between Olofson's AR-15 and a SKS with a dirty firing pin channel.

Bartholomew Roberts
February 4, 2009, 05:01 PM
This guy is definitely not the posterboy for RKBA...

A brief read of both the federal affidavit and the GOA briefing shows that Olofson is guilty as hell. However, there are some salient issues that should concern all of us.

1. Olofson claimed that the AR15 was originally manufactured by Olympic with the M16 parts provided. ATF testified that they had not asked the manufacturer about this particular rifle; but that it was not manufactured this way. Olofson's attorney demanded the ATF turn over any pretrial correspondence with Olympic relating to the case. The Government first declined to produce the correspondence saying it would be impossible to find. The government prosecutor then admitted that there was an ATF/Olympic letter but said that it was not exculpatory and was privileged under the Internal Revenue code. The Court ruled that it didn't see how whether the rifle was shipped with M16 parts or not was exculpatory and denied the request to produce the ATF/Olympic letter.

I think we can all agree that despite Olofson's awkward nature, we would all like to have the benefit of being able to use correspondence from the manufacturer to the ATF that supported our defense.

2. The prosecution and defense agreed to allow technical experts to be present during the hearing and right before the prosecution's firearms expert testified, they reneged on the deal and excluded the defense firearms expert so he was unable to rebut any testimony made that day.

Again, I know if it was me on the line, I would not be happy about this particular move by the government, although it is one they arguably can do anyway.

3. Olofson wanted the jury instruction definition of a machinegun to be the definition given by the Supreme Court in United States vs. Staples; because that definition was slightly more favorable to him than the statutory version. In the Staples definition, a machinegun was only "automatic" if the trigger was fully depressed and the gun continued to fire. So a slamfire or runaway due to faulty parts would not be considered automatic. Under federal statute though, if the gun fires more than one shot when you pull the trigger, it is a machinegun.

GOA wants to kill the federal statute definition; because if correct, it opens up a potential to argue that a doubling or malfunctioning semi-auto is also a machinegun. This would be bad for all of us; but a decision against Staples doesn't make a malfunctioning rifle illegal - it just puts us one step closer to that argument. On the other hand, the Supreme Court doesn't write legislation and isn't supposed to - I don't see how GOA can win on this one even with a conservative court (which we don't have). The law needs to be changed at the statutory level.

On a side issue, GOA is also annoyed that the initial test of the rifle by ATF showed it was not a machinegun. Based on the description of the results (malfunction - hammer follow), I am guessing that the smaller trip surface of the AR15 bolt carrier allowed the M16 hammer to come back too quickly and the rifle didn't operate as a machinegun because the hammer hit the firing pin before the round was chambered. This is probably also why Olofson had noted frequent problems when the rifle did burst-fire. However GOA doesn't argue that it changed the results of the trial and the main issue seems to be demanding the ATF standardize testing procedures and make those standards public knowledge - two things I can definitely get behind although GOA has done no more than mention it as an aside in this amicus brief.

So, short version - Olofson is basically Miller. He isn't my pal and I don't want him over for dinner; but he does have some important issues in his case that affect RKBA for all of us.

vranasaurus
February 4, 2009, 06:29 PM
He is clearly an anti government zealot and blight on the reputation of gun owners.

I am a Soldier and it saddens me that he was a Soldier. The Army has no place for people like him. I am surprised his shenanigans, including a convictin for illegally carrying a weapon, hacking a government server, and recruiting members of his unit for his extremist group, were tolerated for so long. This is just an example of someone falling through the cracks of the system. Thankfully he no longer serves in the Army. I don't know the final characterization of his current discharge. When a service member is separated for misconduct AR 135-178 requires that the discharge be characterized as under other than honorable unless a Soldier's record is so meritorious that such a discharge would not be appropriate. His record deserves no such consideration.

As wildalaska put it, don't be blinded by the gunwoobie. This guy was not a law abiding responsible gun owner and he does not eserve our support.

I am sure there are cases where the government doesn't do right in a criminal prosecution but this is not one of those cases.

Bartholomew Roberts
February 4, 2009, 06:34 PM
This guy was not a law abiding responsible gun owner and he does not eserve our support.

No, he does not; but unfortunately the answers to his questions/problems are things that will affect law-abiding, responsible gunowners just as much as anti-government radicals.

Unfortunately for us, a lot of gun rights issues are decided by people who we all agree shouldn't have firearms. The problem is when the rule is drawn so broadly that it can easily be used to deny rights to those formerly law-abiding citizens as well.

Wildalaska
February 4, 2009, 06:41 PM
I am sure there are cases where the government doesn't do right in a criminal prosecution but this is not one of those cases.

Actually, there may very well have been a Brady violation here, but iirc, a Brady violation qua Brady violation is still evaluated on it's effect on the outcome.

WildcorrectmeifiamwrongAlaska ™

Nnobby45
February 4, 2009, 06:49 PM
Unfortunately for us, a lot of gun rights issues are decided by people who we all agree shouldn't have firearms. The problem is when the rule is drawn so broadly that it can easily be used to deny rights to those formerly law-abiding citizens as well.

Well stated, and I suspect that's GOA's consideration, as well.

Wildalaska
February 4, 2009, 06:56 PM
Well stated, and I suspect that's GOA's consideration, as well.

Balderdash. Do you guys really think that the BATFE has nothing better to do than manufacture a case against Joe Sixpack....read that sentencing brief again. This guy was bad paper and got caught on the radar. Its far easier for the government to investigate someone bad than make up something against someone good.

WildeventheoneswhogotoffarentposterchildrenAlaska ™

vranasaurus
February 4, 2009, 06:57 PM
The definition of a machine gun should not be an issue here because the weapon did not malfunction causing it to fire automatically. The weapon in question was clearly modified with parts from an M16 and that is what caused it to fire automatically.



Actually, there may very well have been a Brady violation here, but iirc, a Brady violation qua Brady violation is still evaluated on it's effect on the outcome.

I believe the defense would have to show that the withheld evidence would have changed the outcome of the case. The appeals court will determine this issue. But unless the letter stated that all of the parts in the rifle were made that way at the factory I don't see how this would be a valid claim. I don't know any AR 15s that come stock with a 3 position selector switch.

Wildalaska
February 4, 2009, 07:02 PM
I don't know any AR 15s that come stock with a 3 position selector switch.

I dont beleive any major manufacturer has even put out ARs with m16 parts (I could be wrong)...

If Olofson wanted to back up his claim, why didnt he subpoenae Oly Arms....even assuming it was relevant.

WildaniwouldarguethatitwasnotAlaska ™

vranasaurus
February 4, 2009, 07:07 PM
Balderdash. Do you guys really think that the BATFE has nothing better to do than manufacture a case against Joe Sixpack....read that sentencing brief again. This guy was bad paper and got caught on the radar. Its far easier for the government to investigate someone bad than make up something against someone good.


Exactly!

The reason this case was prosecuted is that he belongs to an extremist organization and he modified an AR15 to fire automatically.Th

vranasaurus
February 4, 2009, 07:11 PM
I dont beleive any major manufacturer has even put out ARs with m16 parts (I could be wrong)...

I thought a few used an M16 bolt carrier? I could be wrong. But most don't use any you are correct. Most avoid it because there is no need.

And you are correct Olofson could have subpeonaed Olympic Arms. I suspect he didn't because the testimony that would have been presented would not have supported his case.

Bartholomew Roberts
February 4, 2009, 08:32 PM
The definition of a machine gun should not be an issue here because the weapon did not malfunction causing it to fire automatically. The weapon in question was clearly modified with parts from an M16 and that is what caused it to fire automatically.

My take based on the limited information from the briefs and affidavits: the weapon was essentially slamfiring (due to the M16 parts), since the AR design will not allow the firing pin to protrude until the bolt is fully locked, the result was either automatic fire or a stoppage if the weapon couldn't chamber the round fast enough.

The definition of machinegun is at issue because the Staples definition excludes weapons that fire automatically due to slamfires, cooking off, etc. (regardless of whether that is due to wear, excess heat or deliberate malfeasance). The statutory definition says that if a single pull of the trigger results in multiple rounds, that is a machinegun. You can see where that interpretation of the law might be problematic for law-abiding, responsible gun owners who have a cook-off, a slamfire, a rifle that doubles, etc.

As for "clearly modified", the problem is that isn't so clear.

I dont beleive any major manufacturer has even put out ARs with m16 parts (I could be wrong)...

Actually, I used to build ARs in college for a friend who was a SOT and FFL in the early 1990s. We built using Oly and Bushmaster lowers on Nesard part kits and regularly received parts kits from Nesard that included M16 bolt carriers, M16 hammer, and M16 triggers. During the late 1980s - early 1990s time frame, it wasn't unusual for AR manufacturers to use M16 fire control parts to some degree - which is exactly why the ATF put out several letters on that particular issue.

If Olofson wanted to back up his claim, why didnt he subpoenae Oly Arms....even assuming it was relevant.

I couldn't begin to speculate. Olofson was represented by a Federal public defender according to the GOA brief, so that may have played a part in the decision. Regardless, it doesn't really matter to me whether Olofson could have obtained the evidence direct from Oly. The real issue here is that the ATF acknowledged there was correspondence between Olympic and ATF regarding this rifle; but then refused to turn it over. Maybe it was exculpatory, maybe it was not; but I am not real comfortable with the prosecutor being the person who gets to decide that. I would have liked to see the trial judge exercise a little more skepticism here.

The fact that Olofson was an anti-government wackjob is why I think the judge gave the prosecutor a lot of running room; but anti-government wackjobs have the same rights as us law-abiding, responsible gun owners. If they don't get their rights, then we shouldn't be surprised when we don't get ours in a similar situation.

Personally, I think Olofson is going to jail regardless of how his appeal plays out. Unless GOA talks the Court of Appeals into using the Staples definition (unlikely in my view), none of those items are likely to change the outcome of the case - but it will establish protections for the rest of us.

Wildalaska
February 4, 2009, 08:42 PM
You can see where that interpretation of the law might be problematic for law-abiding, responsible gun owners who have a cook-off, a slamfire, a rifle that doubles, etc.


Balderdash. A US atty worth his salt wouldnt prosecute a cookoff absent more

Actually, I used to build ARs in college for a friend who was a SOT and FFL in the early 1990s. We built using Oly and Bushmaster lowers on Nesard part kits and regularly received parts kits from Nesard that included M16 bolt carriers, M16 hammer, and M16 triggers.

I rest my case......that was YOUR build using parts kits from a junk supplier. Factory guns don't use M16 parts.

Maybe it was exculpatory, maybe it was not; but I am not real comfortable with the prosecutor being the person who gets to decide that.

Have you read the US Attorney's manual recently? It is their duty to turn over brady material. Their failure to do so and get caught at it is the worst thing that can happen to an AUSA, especially when the Appeals Court looks at it.

Then rest of your analysis is pure reaching...forget about the gunwoobie and look at it from a legal point of view

In point of fact, innocent folks dont get picked on very often, if at all...the Gov't has real baddies to chase

WildundertheradarAlaska ™

Technosavant
February 4, 2009, 08:50 PM
Some builders will use F/A bolt carriers, usually as an option. However, the bolt carrier itself really isn't a part that the ATF is concerned with; they are far more concerned about the parts of the fire control group (trigger, hammer, disconnector, selector, and auto sear if present).

Makers have gotten far more stringent about selling F/A fire control parts, but will sell a F/A bolt carrier without batting an eye.

Bartholomew Roberts
February 4, 2009, 09:07 PM
Balderdash. A US atty worth his salt wouldnt prosecute a cookoff absent more.

Well, I'm glad that you have that level of faith in our Government, Ken. Personally, I would prefer to just write the law so that it didn't define obvious mechanical malfunctions as machineguns. That solution works whether the U.S. Attorney is worth his salt or not and I think GOA is pursuing a worthwhile goal in working towards that (although the path they have taken strikes me as ineffective and unlikely to succeed).

I rest my case......that was YOUR build using parts kits from a junk supplier. Factory guns don't use M16 parts.

Clearly you haven't been in court in a long, long time if you are willing to rest your case on that. What is the logic there in any case? Because an FFL used parts kits from a junk supplier to build AR15s, it is therefore impossible that any factory manufacturer of that era used M16 parts in AR15s? Perhaps you could connect those dots for me since it seems you skipped a few steps on the way to resting your case.

In any case, my point was that this was an FFL. Does your average gunowner know or care whether it came from the factory like that or was modified by the FFL? Is there any significant difference to them and is that relevant to whether they "knowingly transferred a machinegun." Further, if the Oly/ATF letter isn't exculpatory but confirms what the prosecution already knows, why not share it?

Have you read the US Attorney's manual recently? It is their duty to turn over brady material. Their failure to do so and get caught at it is the worst thing that can happen to an AUSA, especially when the Appeals Court looks at it.

And yet it (http://lawprofessors.typepad.com/crimprof_blog/2008/05/9th-circuit-uph.html) still (http://www.capdefnet.org/hat/contents/constitutional_issues/exculpatory_evi/cases_remanded_based_on_brady6.htm) happens (http://fourthamendment.com/blog/index.php?blog=1&title=d_mass_lemgbradyl_emg_violated_by_prosec&more=1&c=1&tb=1&pb=1).

Not to mention that more than one case has seen a U. S. Attorney withhold information helpful to the defense at trial and then later argue on appeal that the information did not reach the standard of exculpatory evidence required by Brady.

Tell me, what valid reason could the prosecutor have to not want to share this letter? Under what circumstance should he not have to produce it?

In point of fact, innocent folks dont get picked on very often, if at all...the Gov't has real baddies to chase

I'm sure that the fact that innocent folks only occasionally go to jail due to our desire to punish gunwoobies is a great comfort to everyone except those innocent folks.

Playboypenguin
February 4, 2009, 09:13 PM
Do some people never tire of spouting off about things they have no clue about? Do they never tire of repeating tired old innuendo when the facts are easily available to them? Do people never tire of being the worn-out old stereotype of the hysterical gun owner that cries "conspiracy" every time some jerk does something illegal and gets caught?

The gun DID NOT malfunction and cause it to fire multiple rounds. The gun HAD BEEN ILLEGALLY ALTERED for just that task. The man that altered it even informed the person borrowing it of this fact and warned him against using that setting.

Give it a rest already and spend your time defending someone that is not a criminal for once.

Tennessee Gentleman
February 4, 2009, 09:18 PM
Give it a rest already and spend your time defending someone that is not a criminal

The more I read this thread the more I think this guy is a bad horse to pick. I think he did wrong and got caught. I'm not sure I could defend his actions.

Wildalaska
February 4, 2009, 09:27 PM
And yet it still happens.

yep. you have given us two state cases (not apllicable here) and two cases where the Gubmint got caught.....and the error was corrected.

I am sure you know about US vs. Ted Stevens which is still pending.

The District Judges hate to be reversed. They are extermely cognizant of Brady. I would defer to the expertise of the trial judge here. You are now grasping at the same straws as Olafoson's layers.

it is therefore impossible that any factory manufacturer of that era used M16 parts in AR15s?

We are talking about major manufactures and in particular, Oly. Yes.

Let me ask you this. GunGuy buys an AR from FFL Joe. GunGuy shoots it and it runs full auto. If he goes right to the BATF and says, hey dudes, I bought this from FFL Joe and it runs full auto, you think Gunguy is getting indicted?

No.

Now the Feds go to FFL Joe and say, hey you sold this gun to Gunguy and it went full auto, whats the scoop. FFL Joe says, hey wait look at my books, I bought this from Militia Patriot AR Inc, came in yesterday and then sold it to Gun Guy...you think they are gonna screw with FFL Joe?

Not. They want the real big fish...

Now lets change the facts a bit. They go to FFL Joe and he has bins of M16 parts, conversion manuals, has a prior record, has militia pamphlets on the walls and emails talking about ZOG and suchlike and when they ask him about it he starts singing various contradictory tunes.....


Guess what: US vs Olafson.

Criminal investigation is not a TV show. it is a careful process where every i must be dotted and t must be crossed or some slimy defense lawyer gets the baddie off. And for you, by the way, to imply that federal Public defenders are incompetant is beyond beleif...try to get a job as one...and they have forgotten more about Federal criminal cases after one year on the job than you or I will ever know.

Olafson is not a martyr to the evil minions of the JBT ZOGites. Based on whats adduced so far, he is a criminal. I will say no more till the Circuit renders it's decision. You guys can continue the ifwhenmaybebuts as long as you want

WildverytrulyyoursAlaska ™

vranasaurus
February 4, 2009, 09:40 PM
My take based on the limited information from the briefs and affidavits: the weapon was essentially slamfiring (due to the M16 parts), since the AR design will not allow the firing pin to protrude until the bolt is fully locked, the result was either automatic fire or a stoppage if the weapon couldn't chamber the round fast enough.

The definition of machinegun is at issue because the Staples definition excludes weapons that fire automatically due to slamfires, cooking off, etc. (regardless of whether that is due to wear, excess heat or deliberate malfeasance). The statutory definition says that if a single pull of the trigger results in multiple rounds, that is a machinegun. You can see where that interpretation of the law might be problematic for law-abiding, responsible gun owners who have a cook-off, a slamfire, a rifle that doubles, etc.

The weapon was modified. The modifications caused the weapon to fire automatically. Even if it fired automatically by slam fire it was modified to do so and that is the issue. Had the rifle been left in it's factory configuration would it have done this? Probably not. And if it had done this in a factory configuration would it have been prosecuted? Only if the owner failed to report it or fix the problem, the ATF would likely contact olympic arms and figure out if they are selling machine guns.

If Olofson prevails all a person would have to do is modify a weapon so that it fires automatically by "malfunction" meaning its not a machine gun.

To me there is a difference between a malfunction and modifications that intended to cause something.

Nnobby45
February 4, 2009, 10:55 PM
Balderdash. Do you guys really think that the BATFE has nothing better to do than manufacture a case against Joe Sixpack

I think that if you look at the history of the BATFE, you'll answer your own questions with respect to the way they've treated good decent law abiding citizens in the past--and ruined their lives.

That hasn't happened for a while, as far as I know, and when it did, it involved relatively few agents. But it happened none the less.


However, under the new administration, who, with a straight face, could say it can't start happening again. Eric Holder makes Janet Reno look like Shirley Temple.

Wildalaska
February 4, 2009, 11:17 PM
I think that if you look at the history of the BATFE, you'll answer your own questions with respect to the way they've treated good decent law abiding citizens in the past--and ruined their lives.

Yeah, yeah I know, Koresh, Vicki Weaver blah blah blah:barf:

Read my post again. manufacture. decent. law abiding.

I'll agree with you that the ATF and the government shouldnt be trusted because of isolated incidents when you agree gun owners shouldnt be trusted due to isloated incidents.

Same logic.

WildbutwedigressAlaska TM

Al Norris
February 4, 2009, 11:26 PM
Thanks everyone for your responses to my questions... That's kinda what I thought.

The problem I have been having is self-caused. I migrated from version 9.3 of Suse linux to version 11.0 (last Sept), and in the process some of my PDF's were lost. Specifically, the PDFs relating to the Olofson case. So while I thought I new what was what, I no longer had the data or urls to the data to back up my thinking (don't we all love upgrades?).

Now, after reading the very educational (and for me, entertaining) posts after my questions, I can safely say (again), That Olofson is a crook and that he knew he was a crook.

However, I am in agreement that the statutory definition is at odds with Staples. This is a case where case law should prevail over the strict statutory reading.

Wildalaska
February 4, 2009, 11:58 PM
However, I am in agreement that the statutory definition is at odds with Staples. This is a case where case law should prevail over the strict statutory reading.

You mean:

"Appellant claims that the lower Court erred in failing to charge that a malfunctioning firearm is not a machine gun as set forth in US vs Staples. We need not reach this issue, since the evidence that the defendant knowingly modified the firearm was overwhelming"

WildorsuchlikeAlaska TM

Webleymkv
February 5, 2009, 12:47 AM
Correct me if I'm wrong, but I seem to remember a competative shooter who was charged with owning an unregistered machinegun because his FAL would fire more than one shot with each pull of the trigger. When it was later shown that this was due to a worn/broken part rather than intentional modification and also shown that the ATF officer in question had to do a lot of 'fiddling' with the rifle to get the offensive effect, the shooter was either acquited or the charges were dropped. If I'm remembering right, wouldn't this set a precident that the gov't would have to prove that the weapon had been knowingly modified into an unregistered machinegun?

Nnobby45
February 5, 2009, 01:58 AM
Yeah, yeah I know, Koresh, Vicki Weaver blah blah blah



Your habit of addressing people you disagree with as though they were intellectually inferior doesn't compliment you--or anyone, for the matter.

There are people who can't be trusted with guns and Federal agencies have, in the past, abused the rights of citizens in some instances. That doesn't seem like an equal equation to me.

We both agree they have more important things to worry about than stacking the deck against citizens. The odds of it staying that way don't improve under the current administration.

Wildalaska
February 5, 2009, 02:32 AM
There are people who can't be trusted with guns and Federal agencies have, in the past, abused the rights of citizens in some instances. That doesn't seem like an equal equation to me.


really???...well there are more gun crimes committed than rogue Feds running around violating the rights of innocent Patriots. What does your logic of malum in uno, malum in omnibus tell us then?

As to the rest, you can bicker with yourself

WildihavethreeshirotansinmytruckAlaska TM

JohnKSa
February 5, 2009, 02:36 AM
I read through a VERY long thread on Arfcom in which the defendant posted extensively.

The gist of his planned defense was to claim that the federal government had no jurisdiction in the case. It seems that he had little or no interest in trying to prove that the gun was actually legal...

I lost interest in the case after that.

Nnobby45
February 5, 2009, 04:59 AM
well there are more gun crimes committed than rogue Feds running around violating the rights of innocent Patriots. What does your logic of malum in uno, malum in omnibus tell us then?


Tells me that there are many times more criminals than Federal agents, and puts the "rogue" agent in an even worse light, since it shouldn't happen at all.

Looks like the Federal LE community feels the same way, since Federal LE has earned the respect, once again, of most of us--including me.


A case like this can be precedent setting, and, as some have already pointed out, certain strategies have been challenged by the defense as being irrellevent to the case and could, if unchallenged, be used against the rest of us by a less than gun-friendly administration---just in case we get one some day.:rolleyes:

You take care, Wildalaska. Be careful of that midnight sun stroke.:p

Bartholomew Roberts
February 5, 2009, 09:11 AM
yep. you have given us two state cases (not apllicable here) and two cases where the Gubmint got caught.....and the error was corrected.

The links I gave were to three separate websites. The second link gives over 50 cases where cases were remanded or evidentiary hearings ordered on Brady claims. Now even I didn't read every one of the more than 50 short-case summaries on that site, so I don't expect you to either; but I think you may be understating my argument just a bit.

Olafson is not a martyr to the evil minions of the JBT ZOGites. Based on whats adduced so far, he is a criminal.

And I don't believe I have ever said differently in this thread or any other thread on the subject. My concern is that if it is so clear that Olofson is guilty, then why not give him what he asks for in regard to the ATF/Olympic letter and allowing his expert to be present during the testimony of the prosecution expert (as the prosecution agreed to)?

My concern with your argument Ken, is that you seem to feel it is OK to deny Olofson these things because he is a bad guy and plainly guilty and that when a good guy comes up, it will be so obvious he is a good guy that there is no way he will get charged - and if he does get charged, he will get all these things that Olofson didn't because he isn't a "gunwoobie" (whatever that might be).

Now, let me give you a nice real life example. One of the rifles we built as college students/FFLs was a $1500 "custom" Varminting AR. This was before the Internet when you could have learned that giving $1500 to two college students to build an AR from $500 of Nesard parts was probably not going to end well. We set up the AR and polished that trigger nice and bright. A little later, the guy swaps the varminting upper with a 16" carbine upper (complete with semi-auto carrier) and the thing starts firing in bursts. Unlike Olofson, he was unhappy with this and brought it back to us in a state of much disgust and we fixed the problem by replacing the trigger group with AR15 parts (this is when we first learned there was even a difference between AR15 and M16 parts).

However, let's suppose the guy keeps it in his safe for a few years, sells it in a private sale and ten years later (after my buddy the FFL was long out of business despite our two years of business expertise) somebody else puts a 16" upper with semi-auto bolt carrier on it and the rifle begins to malfunction. The rifle has an M16 hammer and trigger in it. Suppose the guy decides to take it to a gunsmith to get it fixed; but he procrastinates and before he takes it to the gunsmith, his ex-wife tips off the ATF to gain the upper hand in a child-custody squabble. This certainly isn't Olofson; but you can bet that the law established by Olofson is going to have a big effect on our hypothetical gun owner.

I am not as confident as you are that the AUSA is going to be able to distinguish the differences in these two cases when deciding whether to file charges. I would like to see our hypothetical gun owner be able to have the government produce evidence that is helpful to his case. I'd also like to see him have his expert in the room as well. I think Olofson is important because it is a perfect case where the Government can establish these protections as precedent and still be relatively confident that the bad guy is not going to walk.

However, I am in agreement that the statutory definition is at odds with Staples. This is a case where case law should prevail over the strict statutory reading.

I am in agreement that the statutory definition needs to change. I don't know that Olofson is the way to do that though. I am concerned about the implications of encouraging nine unelected, life-appointed Justices to rewrite specific statutes written by 535 elected representatives absent some clear conflict with our Constitution. Even though I think the statutory definition is a bad one, I am concerned about the implications of this for checks and balances and I am also concerned that applying Staples directly will result in people trying to build slamfire machineguns to put one over on the man. Now normally, I am all for the "Play stupid games, win stupid prizes" school of Darwinism; but the problem is that the person playing the stupid game rarely seems to be the one to win the prize. It is always some friend or acquaintance who didn't even know what was going on who gets the unlucky lotto ticket.

Short summary for those who can't be bothered to read anything longer than five lines (*cough* Playboy Penguin *cough*) before typing a response that completely misses the points they skipped over in their haste to be heard:

1. Yes, Olofson is likely guilty. I have never seen any manufacturer ship with an M16 safety and disconnector.
2. Regardless of his guilt, he should still get to demand the letter between ATF and Olympic concerning his case because if he doesn't get that privilege, we will not either.
3. Regardless of his guilt, he should still get to have his expert witness present during the government's expert witness testimony for the same reason.
4. The current statutory definition of machineguns has a big gray area when it comes to malfunctioning semi-automatic firearms. The Staples definition resolves that problem; but creates a new one with regards to the creatively stupid.

Technosavant
February 5, 2009, 11:02 AM
Bart, I think your four point summary pretty well sums it up. At the same time, there's a lesson in there for us- if you have a firearm that has worn/broken parts and is doubling, get it fixed immediately!!! Sure, I am not convinced that the ATF is hiding behind a bush waiting to jump out and ensnare otherwise perfectly law abiding people, but if they have some reason to want some leverage over you (Koresh, Weaver), they WILL use it. I can't think of any good reason to not take immediate steps to fix a sick gun. If nothing else, tear it down and trash the bad parts (if for some reason you can't get it fixed pronto). Continuing to shoot such a malfunctioning firearm and seeming to take joy in that status is likely to be used against you.

Wildalaska
February 5, 2009, 01:23 PM
My concern is that if it is so clear that Olofson is guilty, then why not give him what he asks for in regard to the ATF/Olympic letter and allowing his expert to be present during the testimony of the prosecution expert (as the prosecution agreed to)?

Becasue the letter wasnt exculpatory and Olafson is making a straw issue out of it. There are many reasons why the AUSA did not want to turn over the letter, heres one: The issue of safety of the person who wrote the letter in light of Olafson's background as an anti government zealot.

Olafson COULD HAVE subpoenaed Oly. He didnt. I suspect that was because they wouldnt have supported his allegation.

As to the expert, I suspect the same issue as I raised above.

WildallstrawmenfromaconvictedfelonAlaska ™

Wildalaska
February 5, 2009, 01:25 PM
However, let's suppose the guy keeps it in his safe for a few years, sells it in a private sale and ten years later (after my buddy the FFL was long out of business despite our two years of business expertise) somebody else puts a 16" upper with semi-auto bolt carrier on it and the rifle begins to malfunction. The rifle has an M16 hammer and trigger in it. Suppose the guy decides to take it to a gunsmith to get it fixed; but he procrastinates and before he takes it to the gunsmith, his ex-wife tips off the ATF to gain the upper hand in a child-custody squabble. This certainly isn't Olofson; but you can bet that the law established by Olofson is going to have a big effect on our hypothetical gun owner.

As well it should. A malfunctioning firearm that is fixed right away is a malfunctioning firearm. One that is *gigglegiggle* kept for a few years after "malfunction" raises an inference of an attempt to circumvent the law.

WildcommonsenseAlaska ™

Bartholomew Roberts
February 5, 2009, 02:19 PM
Becasue the letter wasnt exculpatory and Olafson is making a straw issue out of it.

If the letter wasn't exculpatory, the fastest way to stop Olofson from making a straw issue of it is to give them the letter. No muss, no fuss and problem solved. Likewise, the prosecutor never raised any safety issue. He just said "Don't worry about it. It isn't exculpatory." The issue here isn't whether Olofson is guilty or not, it is whether or not a prosecutor should get to be the one to make that decision. At least the trial judge could have asked to see the letter and made that determination himself.

As to the expert, I suspect the same issue as I raised above.

Safety? Sorry for my confusion; but you've raised a number of issues throughout the thread, so "that issue I raised above" wasn't enough information to make it apparent which issue you had in mind with regard to the expert witness.

In any case, the prosecution had agreed to have the defense expert present during the prosecution expert's testimony and changed their tune on the same day as the testimony. If Oloson is such a bad guy, then why not go ahead and dot the i's and cross the t's? Had the prosecution done this, two of the major issues in the GOAs Amicus Brief are eliminated, leaving Olofson's only hope as the Staples instruction.

As well it should. A malfunctioning firearm that is fixed right away is a malfunctioning firearm. One that is *gigglegiggle* kept for a few years after "malfunction" raises an inference of an attempt to circumvent the law.

You misunderstood my example. The weapon in question didn't malfunction until it was used with a 16" upper with a semi-auto bolt carrier group. Supposed that our client had never changed the configuration and rarely shot the rifle. What if it sat in his safe for a few years and was sold to someone else? That person shot it a few more years and then swept up in the great M4 craze of 1999, adds a 16" upper and starts having problems. Under the precedent established by Olofson, the government doesn't have to share any letters from the ATF to FFLs or manufacturers discussing whether lower was manufactured with M16 parts. The defense firearms expert doesn't get to hear any testimony from the prosecution firearms expert and therefore can't rebut any statements that aren't in the pretrial discovery. Finally, the statutory definition means that this is a machinegun. Can anybody here not imagine themselves or someone they know in that scenario? Is anybody here willing to forego those same protections for themselves just to make double-sure that Olofson (who can be charged under UCMJ and is going to prison anyway) gets convicted?

If we don't address it here with Olofson, then when do we address it? Later on when someone who isn't a habitual criminal finally gets caught up in this? The problem with the "wait until someone worthy gets caught in the net" approach is that by that time, not only Olofson; but several dozen other habitual criminal types will have been convicted on that same precedent. At that point, the Court of Appeals can either revise the law for our worthy cause (and subsequently revisit every one of those previous convictions of people who do need to be locked up), or they can send our guy down the river. I don't think the case will get stronger the more we wait, in fact, I think just the opposite will happen - which is why it is time to deal with these issues now rather than later when someone more likable comes along with a similar problem.

Wildalaska
February 5, 2009, 02:59 PM
The issue here isn't whether Olofson is guilty or not, it is whether or not a prosecutor should get to be the one to make that decision.

But thats the way the system is set up. Thats the way it works for all Federal trials, with the judge having discretion to inspect in camera.

The mere existence of a procedure in common use applied to a gunwoobie Defendant does not make the case a conspiracy against the gunwoobie qua gunwoobie.

In how many crinimal trials are brady violations claimed? Every one I bet. How many are true. very few.

In any case, the prosecution had agreed to have the defense expert present during the prosecution expert's testimony and changed their tune on the same day as the testimony.

And that is relevant how? Common tactic. Both sides skirt the line. A defendant is entitled to a fair trial, not a perfect one. When I was trying cases, I would ask deliberately inflammatory/objectionable questions (Please, please, Mr. WA, can we ask a question as opposed to making speeches) knowing full well that once the bell is rung it can't be unrung.

Under the precedent established by Olofson, the government doesn't have to share any letters from the ATF to FFLs or manufacturers discussing whether lower was manufactured with M16 parts.

District court evidentiary rulings are not precedent qua precendent

The defense firearms expert doesn't get to hear any testimony from the prosecution firearms expert and therefore can't rebut any statements that aren't in the pretrial discovery.

So what? Straw issue. Experts are rarely permitted to to listen to the proof. Witnesses are routinely excluded. It's the job of the attorneys to ask the right questions...the defense attorney was there and I am sure could have done everyhting he needed to do with his own expert.

Let me digress here: Any trial is a game of chess. Fake outs are common. You use tactics to screw with your opponent. Lets talk about the "letter". Assume arguendo that the letter was innocuous. By not turning it over, the AUSA has created a doubt in the mind of the defense....hey maybe there is something there. The defense is then deflected in it's strategy, it concentrates on the letter that is meaningless anyway to the exclusion or minimization of something else. Now, on appeal, the Circuit Court sees the letter...poof..there is nothing. Much ado about nothing!

I used to play the same tricks as a defense attorney. You take a piece of paper with your grocery list. You walk up with it to the witness, stand by the box facing the jury, look at the list and ask the witness while looking at the jury "Now isn't it true that..........." with a smile on your face. Now the witness is wondering..what the hell is on that paper. The prosecutor is saying to himself, hey wait, whats on that document. The jury is thinking, hmmm the guy has somehting there..No matter how the witness answers you win...if he gives you an answer you don't like, you look at the paper, give a roll eye grimace and move on. If he gives you the answer you like, you say "of course thats the case", look at the paper and move on. Now the Prosecutor is wondering even more...whats on that paper! He's deflected, nervous and on it goes....

Thats they way the system works. thats the way trials work.

You are letting your inner gunwoobie come out. Let it go. if this was a case of child **** and heroin dealing, you would be less inclined to be worrying about hypothetical Brady violations and harmless errors in trials.

Analyze this case not as a gun owner, not as a defense lawyer, not as a prosecutor but as a critical thinker. remember the apocryphal Abe Lincoln story:

he goes in before a Judge in the morning, argues a case in favor of his client. Judge grants the relief he wants. In the afternoon, he argues another case, same facts but asking for the opposite result. the Judge says: 'Mr Lincoln, didnt you, this very morning, on the same facts, argue for the opposite result?"

Lincoln responded "yes Judge, I did, but this afternoon, I'm right"

Our system isn't perfect. My prediction here is as I set forth above in response to Al.

WildsorrytobesolongwindedAlaska ™

vranasaurus
February 5, 2009, 03:18 PM
I doubt the circuit court rules on the definition of a machine gun. Since there is no evidence that the firearm in questioned malfunctioned no need to decide whether or not a malfunciton does or does not make a firearm a machine gun.

Bartholomew Roberts
February 5, 2009, 03:26 PM
District court evidentiary rulings are not precedent qua precendent

What about Court of Appeals rulings on those evidentiary rulings (where we are at now and where GOA is taking this)? If the trial judge here rules that he doesn't see how a letter stating whether a rifle was manufactured with machinegun parts is exculpatory and the Court of Appeals holds that this is harmless error - wil future ATF prosecutions be more or less likely to share that type of evidence with the defense? Is our system of justice well served when ATF is allowed to do that?

Since there is no evidence that the firearm in questioned malfunctioned no need to decide whether or not a malfunciton does or does not make a firearm a machine gun.

As it stands, the Staples definition says that if you pull the trigger and the weapon continues to fire after you release the trigger, that is not a machinegun. It is only a machinegun if the weapon fires automatically while the trigger is depressed.

The statutory definition says that if there is a single pull of the trigger and more than one round comes out, it is a machinegun, period.

The issue of whether the rifle is malfunctioning or not isn't a part of either definition; but due to the conflicting nature of these definitions, only one of them can be a jury instruction. The Court of Appeals is not deciding whether a malfunction does or does not make a machinegun. They are deciding what the definition of machinegun is given these two conflicting definitions.

The problem is that neither of those definitions distinguish between normal functioning and malfunctioning firearms. The result is that the Staples definition excludes rifles like Olofson's that probably were illegally modified but don't fire in a safe or controlled fashion. Meanwhile, the statutory definition covers rifles that are merely malfunctioning. This is the key problem that should concern gunowners.

vranasaurus
February 5, 2009, 04:08 PM
The problem is that neither of those definitions distinguish between normal functioning and malfunctioning firearms. The result is that the Staples definition excludes rifles like Olofson's that probably were illegally modified but don't fire in a safe or controlled fashion. Meanwhile, the statutory definition covers rifles that are merely malfunctioning. This is the key problem that should concern gunowners.

How does either definition exlude the firearm in question?


As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted

This definition would include intentionally modifed firearms like olofsons. I don't see how it wouldn't.

Unless you are arguing that because said weapon jammed or malfunctioned constantly when firing automatically it didn't meet the definition of staples because it didn't continue to fire while the trigger was depressed until the trigger was released or ammo expended. Which from the Lou Dobb's piece I saw is part of the defenses argument. That is a really dumb argument.

The firearm in question didn't malfunction in the sense that the malfunction was the cause of the automatic fire. It malfunctioned in the sense that it didn't fire perfectly when in auto.

Wildalaska
February 5, 2009, 04:40 PM
If the trial judge here rules that he doesn't see how a letter stating whether a rifle was manufactured with machinegun parts is exculpatory and the Court of Appeals holds that this is harmless error - wil future ATF prosecutions be more or less likely to share that type of evidence with the defense? Is our system of justice well served when ATF is allowed to do that?

No. A Brady violation ruled as harmless error, imho, has no precedential value ON EITHER SIDE, since the issue of harmless error is a mixed question of law and fact. Plus, the C of A can sanction the AUSA for the violation (which is a common remedy) thereby ensuring continued compliance with Brady.

thats assuming of course that the letter was even exculpatory.

You keep harping on the letter. Answer this question...Assuming arguendo that the letter shows that the gun was made with SOME M16 parts, what is the exculpatory value of same if all the testimony and evidence unequivocally shows that the defendant knowingly made the gun run full auto and that he knew it would run full auto?


Just as an aside..please show me ANY case where the BATFE prosecuted a legitimate gun owner for a malfunctioning firearm?

WildhowsocraticAlaska ™

spacemanspiff
February 5, 2009, 05:03 PM
When I was trying cases, I would ask deliberately inflammatory/objectionable questions
I am so, completely, utterly, shocked. :D

edit - I have fired someones AR15 (bushmaster varminter) that malfunctioned, but only when I fired it. It would fire doubles only for me. The original owner couldnt get the gun to do that. Something about my trigger pull. I think it was firing once when the trigger was pulled and once when it was released.
That would not fit the description of 'machinegun' because it did not 'fire repeatedly until the trigger was released, or the feed device empty', but rather it fired twice, and only twice per pull/reset of the trigger.

1manarmy
February 6, 2009, 08:37 AM
I'm a member at the Berlin Conservation Club where this happened. I don't personally know this guy but shoot with some people that do. Don't know if he is guilty or not but they say he's been on the radar for some time. I guess he helps people out with tax issues, zoning issues, or anything else to do with the goverment trying to tell you what you can and can't do. They say this has made him a target for a long time. I was told that he open carried and got arrested for something like disturbing the peace in the past. He fought the case and eventually won since it is legal in Wisconsin. I haven't read all posts on this thread but don't believe everything you read/hear on the news. I've heard he is a standup guy from local down to earth people and that's more than enough for me to with hold judgement on him.

Not saying if he is guilty or not but I do know his charactor has been attacked and defiled.

Just though everyone should know.

Bartholomew Roberts
February 6, 2009, 08:57 AM
You keep harping on the letter. Answer this question...Assuming arguendo that the letter shows that the gun was made with SOME M16 parts, what is the exculpatory value of same if all the testimony and evidence unequivocally shows that the defendant knowingly made the gun run full auto and that he knew it would run full auto?

If all the testimony and evidence shows that unequivocally, then the exculpatory value is zero. If you take a strict interpretation of the federal statute, then the exculpatory value is zero even if the evidence is less than unequivocal since under a strict interpretation you need only two elements basically:

1. Did it go bang more than once when the trigger was pulled?
2. Did you know it would do this?

In Olofson's case, the answer to both is clearly yes (since he admitted to it himself). That is one of the troubling aspects about a strict interpretation of the federal statute. If you wanted to carry it to ridiculous lengths, you could make an argument that based on literal interpretation of the statute, it was illegal to transfer possession to a normal FFL so that the problem could be fixed. Now, I don't see that as a realistic problem; but if the statute was written better, it wouldn't be an issue at all.

an aside..please show me ANY case where the BATFE prosecuted a legitimate gun owner for a malfunctioning firearm?

Well, before I could answer that, I would have to know who you consider a legitimate gun owner. As to BATFE, they have been known to try to stretch the boundaries of the law in cases where they felt strongly that they were right.

This definition would include intentionally modifed firearms like olofsons. I don't see how it wouldn't.

Well, the intention in modifying the weapon wouldn't be included because neither definition makes any mention of the intention being relevant. Under the Staples definition, a firearm is not a machinegun unless it "fires automatically until the trigger is released or it runs out of ammunition." Using this definition, Olofson's rifle would not be a machinegun for either of two reasons:

1. It stops firing automatically before the trigger is released.
2. It continues to fire automatically after the trigger is released.

Which from the Lou Dobb's piece I saw is part of the defenses argument. That is a really dumb argument.

What is dumb about it? Isn't that pretty much exactly what the Staples definition says?

Al Norris
February 6, 2009, 10:15 AM
I wish to publicly thank all the participants of this thread.

While it may have started off on a rather weak footing, with the help of everyone, it has taken the high road and is arguably one of the best threads yet to come out of this new forum.

Kudos to all!

I would like to close this thread (or maybe just let it sink) until such a time that the Circuit decision comes out. Is there any further discussion to be presented on the issues presented by this case? Any points that have not been covered?

Note: This isn't a vote. It's a call for further discussion (if there is any). If you have none, then simply don't respond - it will be deleted.

brickeyee
February 6, 2009, 02:27 PM
Experts are rarely permitted to to listen to the proof. Witnesses are routinely excluded.

Expert testimony is not treated the same as witness testimony.

Experts are supposed to provide objective factual evidence within their area of expertise.
They are almost always allowed to hear the testimony of others, but especially the opposing sides experts, to aid the side them hired them in interpreting and formulating questions for the opposing experts.

I have testified as an expert witness a couple times as a professional engineer.

Wildalaska
February 6, 2009, 04:06 PM
Experts are supposed to provide objective factual evidence within their area of expertise.
They are almost always allowed to hear the testimony of others, but especially the opposing sides experts, to aid the side them hired them in interpreting and formulating questions for the opposing experts.

I have testified as an expert witness a couple times as a professional engineer.

State or Federal Court?

Federal Rule Of evidence Rule 615

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

WildemphasisaddedAlaska ™

Webleymkv
February 6, 2009, 04:51 PM
I found more details of the case I mentioned in my earlier post. The ATF went after a competition shooter named John Glover because his FAL went full auto due to worn parts. When a firearms expert was consulted and the reason for the malfunction was shown, the charges were dropped.

http://www.freerepublic.com/focus/f-news/1467481/posts

Al Norris
February 6, 2009, 07:15 PM
Seven posts deleted for being off topic. sigh.

If you wish to discuss malum in se v. malum prohibitum, start a new thread.

Closed.