Archive for August 8th, 2008

Malfunctioning AR15 becomes a machine gun?

August 8, 2008

I first heard this story on TV the other night from Lou Dobbs.

In July 2006 a Wisconsin gun owner lent an AR15 to a friend who took it to a local range to shoot. At one point the gun briefly went full auto and then jammed. Police officers who were on the range at the time observed this and decided that it was in effect a machine gun and the owner of the gun was charged for illegally transferring a machine gun. The case came to trial in January 2008 and the individual has now been convicted and sentenced to 30 months in prison.

Dobbs made the case seem pretty cut and dried that the gun owner, David Olofson, was badly served by the justice system and the early commentary from gun bloggers raised the fear that any shooter having a gun go full auto-due to a malfunction could be open to prosecution, some suggesting the extreme position that something as simple as a side-by-side shotgun doubling on you could be so interpreted by overzealous ATF agents and federal prosecutors. From the testimony of ATF agents at the trial there was reason to be nervous.

As with most situations like this where charges are laid, you know what gets reported but you always wonder what is lurking out of sight.

In this case all you really have to look at is the transcript of the trial and some opinions on some blog sites. You can read the transcript here and here.

The ATF and the federal prosecutor go to great lengths to discredit Olofson by noting that he had on his computer a manual on how do conversions from semi-auto to full auto on an AR15. Although when interviewed by the ATF agent and asked if he knew how to do the conversion to full-auto he said that he did but didn’t have the skills or equipment to actually do the work.

Q. Agent Keeku, when you interviewed Mr. Olofson back on, this
was in July of 2006?
A. Yes.
Q. He never tried to say that that gun wasn’t his.
A. Correct.
Q. He fully acknowledged that that was his gun.
A. Yes.
Q. You said that he also told you that he had the knowledge to
transform a gun, a semi-automatic into an automatic, correct?
A. Correct.
Q. But that he didn’t have the parts, tools, or machining
skills, correct?
A. Correct.
Q. So actually he might have had knowledge of some, in some
vague way, but he didn’t have the skills to do it.
A. That is a statement that he made, yes.

But he was also badly hurt by the testimony of the friend who had borrowed the AR15 and on whom the rifle had fired the full-auto burst. He told the ATF agents that when told about the malfunction Olfson indicated that he knew it was a problem.

The other items of note in the transcripts is that Olofson bought the AR15 from an FFL dealer and the firearms expert testifying for the ATF confirmed that there had been no conversion work done on the rifle.

Q. Okay. And Mr. Olofson also — he said that he had bought
that gun in 1989, correct?
A. Correct.
Q. And that he had bought it from a federal firearms licensee,
A. I’d have to review my notes.
Q. Would it refresh your recollection if I showed you the
summary of the interview of Mr. Olofson?
A. Yes.
Q. And actually let me rephrase my question. He said that he
buys guns from federal firearms licensees, correct?
A. Yes.
Q. And to be a federal firearms licensee, you must be complying
with federal laws as they relate to selling guns, correct?
A. Correct.

The main theme of the government’s case was that the rifle fired a multiple burst and therefore it was in full-auto mode and therefore was a machine gun.

Q. And I believe that on cross-examination you agreed with
Mr. Fahl that a firearm is a machine gun as long as the trigger
is engaged — as long — if it fires, as long as the trigger is
engaged or until the ammo runs out?
A. That’s one portion of the machine gun definition, yes, sir.
Q. Well, would it also qualify as a machine gun if you pulled
the trigger once and it started to fire multiple rounds but
before you released the trigger and before the ammo had run out,
for example, the gun jammed? Would you still consider that
firearm to be a machine gun?
A. It could be.
Q. If you pull the trigger, let’s say, and three to four rounds
are fired and —
A. (Interrupting) Oh, three to four rounds?
Q. Yes.
A. As long as it’s more than one round fired automatically, it’s a machine gun.

As well, Olofson was probably not well served by being judged by a jury. The cross-examinations became very technical and confusing with detailed questions and answers on the technical functioning of the rifle dwelling on hammer fall and M-16 parts. I can well imagine the jury members’ eyes glazing over as this phase of the trial droned on. In the end they most likely keyed in on the easily understood facts:

  1. Olofson reportedly said that he knew that under certain conditions the rifle would fire a full-auto burst (and then j am)
  2. He had information on his computer on how to convert an AR15 from semi-auto to full-auto mode.
  3. The ATF agent repeatedly said that regardless of the reason, if a firearm goes full-auto it is a machine gun.

The prosecutor also aggressively went about discrediting the technical expert brought in by the defence and probably was effective in the eyes of the jury by pointing out that he had no formal training in the area of firearm work, although he was a trained machinist and was a firearm designer.

I was also curious as to why the Olofson opted not to testify on his own behalf.

It does seem that the government came down extraordinarily hard on Olofson and I have to wonder why. Whether the problem was a malfunction or not there did not appear to be any attempt by Olofson to attempt a full-auto conversion on the rifle. With that in mind, 30 months prison time seems excessive. Actually after reading the transcripts, any prison time seems over the top.

Regardless of the statement of the ATF agent about any gun that fires more than one round automatically being classified as a machine gun, I doubt that a side-by-side or over/under doubling would bring down the long arm of the law.

These things happen. I recall a .45 calibre 1911 Colt I once owned that had been worked over to turn it into a competition gun. I was practicing on the range when it went full-auto on me and emptied the clip. The last shot was almost vertical. By the ATF’s definition I was apparently in possession of a machine gun, although it never happened with that gun again.

Just another thing for gun owners to worry about.