Recent Federal Case (Merged with " Rifle malfunction= prosecution?")

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I don't think anyone is said that. And I would tend to agree that it dose not come close to changeing anything from the Olofson case at THIS point. Had it happend prior to the case it may have had some impact.
 
Along the lines of an "after-thought", possibly not especially germane to Olofson, but none-the-less interesting, one reads about, hears about people in Law Enforcement having "Accidental Discharges" as they are sometimes known, and or leaving their service weapons in men's or ladies rest rooms.

I too carry a pistol concealed on my person. I have at times utilized men's johns in public places, bars, resturants, airports and such. I have no connection whatever with LE, essentially I'm simply an untrained civilian, yet I have never walked out of a men's restroom, having left a loaded pistol lying about.

Anyone can make a mistake, do something just plain stupid or use bad judgement, we are after all human. It strikes me however that the "trained professional" should reasonably be held to a higher standard of common sense, care or judgement, however you want to describe it, than is the ordinary private citizen.

I for one wonder as to what might happen to Mr., Mrs. or Ms. Everyperson, were they found to have departed the appropriate rest room, having left a loaded pistol or revolver sitting on the floor, or washstand. How long would they retain their carry license or permit? Also, one wonders as to what happens to the "trained professional" who is involvwed in the same circumstances.
 
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Re comment from various posters on the Olofson case, the antics of the U.S. Attorney's Office and the BATFE, as well as what the trial judge in this case seems willing to tolerate, may I offer interested parties a walk down the path of judicial history.

U.S. District Court, Pittsburgh, PA, 1985, unfortunately I do not recall the case number, however it involved a gentleman named Corcoran, who was charged with making and I believe selling a machine gun as well as being "in the business" without a license. The trial judge was Judge Zeigler.

The judge heard the government's case. Upon mtions of defense counsel, he directed a verdict of acquital on the "machinegun charge, offering that in his 25 years on the bench, that this was the first time he had ever directed a verdict.

Seemed that, in this case, as they have done in other cases, the AFT people had "played with" the rifle in question until they got it to, one time, fire multiple shots with a single actuation of the trigger. The trial judge was less than convinced by the government's case, ergo his DIRECTED VIRDICT. Concerning the "being in business without a license (FFL)", the judge allowed the trial jury to deceide that matter, they acquitted Corcoran.

While not every case brought by the AFT falls flat, they have had "problems" with machinegun cases before, more recent examples of such matters being the cases involving John Glover and Michael Kwan.

Regarding the BATFE itself, one wonders at to whether they might be suicidal or is it simply an inate hostility on their part to the idea of Second Amendment Rights that seemingly drives some of their activities? One tends to wonder.
 
Appeal

The defendant has a number of avenues to pursue an appeal of the verdict: Everything from Mens Rea to inadequate counsel, to prosecutorial misconduct, to the court's reversible errors.

It ain't over yet.
 
That it is not. It has mearly reached the end of the first quarter. There is a lot of fghting yet to come on this.
 
Cloverleaf762 writes:

Looks like we have a few more articals out there.

http://jerrythegeek.blogspot.com/200...vage-duck.html

http://www.wnd.com/index.php?fa=PAGE.view&pageId=55908

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Re the first link and material therein found, it would appear that in the BATFE, respecting it's firearms enforcement activity, we have a run away agency. Obviously, The Congress could and should fix this "problem" however they seem to lack either the ability or the willingness, I suspect the latter, to so act. Re this, I wonder as to what would happen if some elected thing or their kin became involved on one of these questionable enforcement cases. Given that they seem to involve only Joe and Jane Sixpack, nobody much in the halls of power seems to take notice or to care. Funny, isn't it?

As to the other link, that dealing with a Trained LE Professional loosing their service piece, I had commented on that earlier. I will recap my comment on that matter only to the following extent. What would happen to the Concealed Carry License or Permit of some citizen civilian who turned out to be so careless or distracted?
 
DMF said:

Have you ever even read Title 26, Section 6103, and bothered to try to understand what it says? Have you even bothered to read that letter in it's entirety, AFTER reading 26USC6103?
Click to expand...

I have, and it's a mess, but I can't find the section that authorizes disclosure of exulpatory information to the defense. The subsection you quoted allows disclosure on request for a court order by a federal officer or AUSA for their use in an investigation or criminal proceeding.
 
Dallas239 Quote ad also writes:

Have you ever even read Title 26, Section 6103, and bothered to try to understand what it says? Have you even bothered to read that letter in it's entirety, AFTER reading 26USC6103?

I have, and it's a mess, but I can't find the section that authorizes disclosure of exulpatory information to the defense. The subsection you quoted allows disclosure on request for a court order by a federal officer or AUSA for their use in an investigation or criminal proceeding.

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Re "it's a mess", obviously a subjective conclusion, but possibly all too valid, why is "it", It being the law under which we all live, "a mess", a term which could be taken as meaning occluded, mysterious, difficult to understand, abstruse, etc. Secondly, is it the law itself or might it be the regulations, such things, according to GCA'68 "being promulgated by The Secretary or his delegate ..", where the discerning/undersdtanding problem lies, and in either case, WHY? After all, should not the law be written so that the citizen might, having viewed the text, thereby have obtained a clear understanding of what is required. Seems as if such SHOULD be the case. Unfortunately, it also seems that such is not the case, possibly not even close to being the case. Does it turn out that I'm a dreamer?
 
Obfuscatory language in law is the norm.
Example: in NY, a rifle is not a "firearm" - despite being, in common parlance, the quintessential example thereof.
 
ctdonath writes:

Obfuscatory language in law is the norm.
Example: in NY, a rifle is not a "firearm" - despite being, in common parlance, the quintessential example thereof.

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Not meaning to be argumentative, if in N.Y., I assume state, correction if necessary please, "a rifle is not a firearm", what is a rifle, by the lights of the New York Legislature.
 
In NY...
A rifle has a barrel >16", shoulder stock, and fires metallic cartridges. Rifles are legal.
A shotgun has a barrel >18", shoulder stock, and fires non-metallic cartridges. Shotguns are legal.
A firearm is a pistol, revolver, short-barreled rifle/shotgun, or (IIRC) assault weapon. Firearms are illegal, with exceptions.
 
IIRC = If I Remember Correctly

NY gun laws are pretty twisted. I spent years studying them: they're mostly based on the theories of "ban everything, then allow exceptions, with exceptions, subject to exceptions" and "redefine common terms to something significantly unlike what the general population understands." Trying to remember all those obfuscations is a bit mind-bending.
 
Happened across some more transcripts. I'm posting a few more excerpts from the transcripts for your reading pleasure. I believe they are self explanatory when it comes to the governments new position on what is a MG.

MR. HAANSTAD: (Assistant US Attorney)
Now, Mr. Savage may be of the opinion that Exhibit 1
is not a machine gun. But it's also clear that Mr. Savage
doesn't consider himself bound by the legal definition of
machine gun.
You heard him testify yesterday that it wouldn't
matter to him if he picked that gun up and pulled the trigger
once and 50 rounds came out or 100 rounds came out, he still
would not consider it a machine gun.
Well, how can that be under the definition that you
have of a machine gun? Again, that's the definition that
controls here, not any notion that Mr. Savage may have as to
what constitutes a machine gun.
A machine gun is specifically designed by statute and,
again, about six pages back -- six pages from the back of the
packet of the jury instructions you're going to receive, that
definition is provided. And clearly, under the legal definition
of "machine gun" that you're going to be asked to apply, Mr. Olofson's gun qualifies because, as Mr. Kingery testified,
as Mr. Kiernicki testified, and as you yourselves all saw in the
video, when you pull the trigger once on that firearm more than
one round is fired.


GOVERNMENT REBUTTAL ARGUMENT
MR. HAANSTAD: Ladies and gentlemen, the defense has
invited you to go down a number of paths that stray from the
straightforward central issues in this case, the first again of
which is, was Mr. Olofson's gun a machine gun?
Now, I've emphasized already that you should focus on
the definition that's provided. And if you do so, you see that
the statute covered not only as Mr. Fahl indicated a weapon that
shoots automatically more than one shot -- and he's right,
that's written in the present tense -- but there's no support in
that statutory definition for the notion that right as you, as
jurors, deliberate, we have to demonstrate to you that this
particular gun shoots automatically. Because the definitionprovides that a machine gun is any weapon which not only shoots
but which is designed to shoot or can be readily restored to
shoot automatically more than one shot with a single function of
the trigger.


And again, when Mr. Kingery did the test fires,
including the one that's on video that you've seen -- we didn't
take you to a test range yesterday but we attempted to bring the
test firing range to you by video taping this, and in that video
tape you can see that when Mr. Kingery pulls the trigger once,
more than one round is expelled, clearly satisfying the first
part of that definition of "machine gun" that I've asked you now
several times to focus on. But remember, you don't necessarily have to stop there
according to this definition because it also, the definition
also includes firearms that were designed to shoot or can
readily be restored to shoot automatically.
So again, under that definition there's no support for
the notion that every time you go out and fire this weapon ithas to fire automatically. Simply not consistent with the plain
language of this statute which the court is going to instruct
you to follow.
Nor is there any support for the notion that you have
to use a particular type of ammunition when you fire the
firearm, and that only if you use a specific type of ammunition
and it fires automatically does it qualify as a machine gun.
Again, that particular requirement, that any
particular type of ammunition be used, simply is not included
within this definition. And not only is not included, but it's
not consistent with this definition because, again, it covers
not only shoot but also which are designed or can readily be
restored to shoot automatically. Now, as I mentioned earlier, it's somewhat tempting to
sort of point by point discuss all of the evidence that came
out, but the fear is that it's, again, gonna lead you down a
path that's really not -- right on this, right in connection
with the straightforward central issues that are presented in
this case.
But, to the extent that there's some concern, for
example, that some kind of special ammunition was used in order
to induce this automatic fire, keeping aside, setting aside for
one minute whether that matters even under this definition,
remember the testimony was that the unique type of ammunition
that was used was the military grade ammunition that OfficerKingery used in that first test fire that he did. That was the
nonstandard ammunition, the military stuff.
When Mr. Kingery, on a subsequent test, used regular
standard commercially available civilian ammunition, the type of
ammunition that you would go out and buy at the sporting goods
store, and he popped that ammunition into Exhibit Number 1,
Exhibit 1 fired automatically. It did so on the second test and
it did so again on this test that you've seen and which you can
see again when you're back deliberating.


And that's what your focus should be on. It shouldn't
be on this testimony about what might have happened in some
hypothetical case. It shouldn't be about what's happened in
other cases. You're asked to decide whether or not this
particular gun fires automatically. And not only have you seen
it with your own eyes fire automatically, but you've heard this
explanation as to why it fires automatically.
Now, there's also a bit of a danger, I'm afraid, that
you're gonna focus too much on the possible modifications
or performance of this gun. There's no requirement that you
find that Mr. Olofson himself performed the modifications that
converted this AR-15 into an M-16. In fact, there's no requirement that you believe that
the gun's been modified to fire as an M-16. The sole issue that
you have to decide is whether or not the gun in fact firesautomatic. That is, even if a gun came from the manufacturer
assembled as a machine gun, if Mr. Olofson's in possession of
that type of gun, that is, a non-modified but nonetheless
machine gun, and he then transfers it to Mr. Kiernicki, he's
guilty, he falls within this definition.

Based on all this, ladies and gentlemen, keeping in
mind the statutory definition of "machine gun," that is, again,
any weapon which shoots, or is designed to shoot, or can be
readily restored to shoot, automatically more than one shot,
with a manual reloading by a single function of the trigger --that is, again, any weapon that will shoot more than one round
with one pull of the trigger, or that is designed to shoot that
way, or can be readily restored though shoot that way, is a
machine gun.
 
My understanding is that another was caught with his gun on a range malfunctioning and he rolled over to avoid any criminal prosecution.
 
Cloverleaf762:

Having browsed through portions of what you describe as trial transcrpits, I find one thing difficult to swallow, that being the following. That the state of the law is such, this created by our elected things, that a malfunctioning semi-automatic rifle could possibly be held to be a machine gun.

In several instances, I've had 1911 type pistols chambered for 45 ACP go "full automatic". One was a Kimber pistol that doubled a couple of times, fired trwo shots with a single actuation of the trigger. This happened twice within a period of about 5 or 6 years.

In another instance, a 70 Series Colt Pistol went full automatic firing a 6 round "burst", this as the result of an overly ambitious "trigger job", which left insufficient sear engagement. A third instance involved a match conditioned 1911 pistol, work done by military small arms personnel, fired 5 rounds on a reload. I removed an empty magazine, inserted another magazine and dropped the slide using the slide release. Five rounds fired, which really got the attention of other competitors in that Leg Match. I was subsequently told that I should have either "ridden" the slide home or held the hammer back while dropping the slide. I thought that the trigger on that particular pistol was a bit light, but I was accustomed to a 4 + pound trigger.

Vis-a-vis Olofson, I suppose that I could have been arrested for possession of an illegal (unregistered) machinegun, fortunately there weren't any police or ATF people around. In any case, when the law fails to recognize that machinery sometimes malfunctions, acting in a "peculiar" manner, what comes to mind is the following. The law is way out of wack, as likely was the case with those who wrote it, once again, we come back to those elected things of ours.
 
Think about this....

The US attorney stated:

"there's no requirement that you believe that the gun's been modified to fire as an M-16. The sole issue that you have to decide is whether or not the gun in fact fires automatic. That is, even if a gun came from the manufacturer assembled as a machine gun, if Mr. Olofson's in possession of that type of gun, that is, a non-modified but nonetheless machine gun, and he then transfers it to Mr. Kiernicki, he's guilty"

In short if ATF can methodically tamper with the evidence and get more that one shot you must find him guilty....

Doesn't even sound like America my friends, does it? Or should that be "comrades"?

Len
:fire::cuss::banghead:
 
"Having browsed through portions of what you describe as trial transcrpits, I find one thing difficult to swallow, that being the following. That the state of the law is such, this created by our elected things, that a malfunctioning semi-automatic rifle could possibly be held to be a machine gun."

Alan:

Remember that BATF (before they added the "E", I think) once declared in court that a shoestring and a paperclip were machine guns - under the theory that "a part of a machine gun is the same as the whole machine gun" and that "a machine gun is any firearm which can be made to fire more than one round per trigger pull at least one time". Using a paper clip on one firearm and a shoestring on another, a BATF guy was able to make them fire more than once per trigger pull, at least one time, in something like 8 hours. Of course, those are off-the-cuff recollections of stuff I heard a while back, let me see what real info I can dig up...

Here's BATFE's letter about the shoestring: http://www.jpfo.org/images02/shoestring.jpg - looks like it was after the "E" was added after all; for some reason I'd remembered that event as being older. They unequivocally state that a 14" piece of shoestring with two loops on it is in fact a machine gun.

I believe the paper-clip incident refers to this case from 1980: "U.S. v. One U.S. (TRW) 7.62mm M-14 National Match Rifle, Serial No. 143711, 1980 WL 95647 (S.D.Ohio, May 20, 1980) " (found at: http://www.constitution.org/2ll/bardwell/us_v_m_14.txt). Note that the RIFLE was the defendant - the owner was listed as a "Party Of Interest". I did not see a time listed for either event, so perhaps that part is not accurate - but isn't that BATF(E)'s cutoff for "readily-modifiable to full-auto", if it can be done in a machine shop in under 8 hours? Whatever, they've long since gone WAY off the deep end in claiming that non-gun-parts are in fact machine guns, for them to say that a malfunctioning selfloading rifle is a machine gun is, by their apparent standards, practically REASONABLE.
 
The law as written does not exempt malfunctions.

I'm reminded of the line "fail-safe systems fail by failing to fail safely."
A semi-auto which has a full-auto failure state is, legally, a poor design.
(As the goal of 922(o) conflicts with realities of reality, it is 922(o) that should be fixed/eliminated, not broadly- and long-accepted semi-auto designs.)
 
Historic Arms LLC wrote:Think about this....

The US attorney stated:

"there's no requirement that you believe that the gun's been modified to fire as an M-16. The sole issue that you have to decide is whether or not the gun in fact fires automatic. That is, even if a gun came from the manufacturer assembled as a machine gun, if Mr. Olofson's in possession of that type of gun, that is, a non-modified but nonetheless machine gun, and he then transfers it to Mr. Kiernicki, he's guilty"

In short if ATF can methodically tamper with the evidence and get more that one shot you must find him guilty....

Doesn't even sound like America my friends, does it? Or should that "comrades"?

Len

-----------------------

Should it turn out that BATFE personnel "tampered" with Olafson's AR-15 rifle, in order to obtain "multiple discharges with a single actuation of the trigger", such action from them in this case would not be the first time they had so acted.
 
erictank quoted and wrote:

"Having browsed through portions of what you describe as trial transcrpits, I find one thing difficult to swallow, that being the following. That the state of the law is such, this created by our elected things, that a malfunctioning semi-automatic rifle could possibly be held to be a machine gun."

Alan:

Remember that BATF (before they added the "E", I think) once declared in court that a shoestring and a paperclip were machine guns - under the theory that "a part of a machine gun is the same as the whole machine gun" and that "a machine gun is any firearm which can be made to fire more than one round per trigger pull at least one time". Using a paper clip on one firearm and a shoestring on another, a BATF guy was able to make them fire more than once per trigger pull, at least one time, in something like 8 hours. Of course, those are off-the-cuff recollections of stuff I heard a while back, let me see what real info I can dig up...

Here's BATFE's letter about the shoestring: http://www.jpfo.org/images02/shoestring.jpg - looks like it was after the "E" was added after all; for some reason I'd remembered that event as being older. They unequivocally state that a 14" piece of shoestring with two loops on it is in fact a machine gun.

I believe the paper-clip incident refers to this case from 1980: "U.S. v. One U.S. (TRW) 7.62mm M-14 National Match Rifle, Serial No. 143711, 1980 WL 95647 (S.D.Ohio, May 20, 1980) " (found at: http://www.constitution.org/2ll/bardwell/us_v_m_14.txt). Note that the RIFLE was the defendant - the owner was listed as a "Party Of Interest". I did not see a time listed for either event, so perhaps that part is not accurate - but isn't that BATF(E)'s cutoff for "readily-modifiable to full-auto", if it can be done in a machine shop in under 8 hours? Whatever, they've long since gone WAY off the deep end in claiming that non-gun-parts are in fact machine guns, for them to say that a malfunctioning selfloading rifle is a machine gun is, by their apparent standards, practically REASONABLE.

--------------------

I've heard/read of the cases you mention, and that seems to be the way of the world with some in Law Enforcement, or what passes therefor. Regarding the fiasco of the M-14 rifle, as I recall, what it boiled down to was the following. Essentially, the government was trying to steal the mans rifle. Of course, they called it asset forfeiture, however in my book, such antics have never amounted to anything other than theft under color of law. People learned in the law might well describe it in different terms, however I call things as I see them.
 
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