Mens Rea and the National Firearms Act

I think it’s important for gun owners to understand the National Firearms Act, and how it is applied as law by the federal courts.  Most of us here possess semi-automatic firearms, which can occasionally experience a failure mode that causes multiple shots to be fired with a single action of the trigger.  I think it’s important people know what their rights are, and how the law is applied, in case they ever find themselves in this situation.  This is from a post from Kurt Hofman yesterday:

[…] you can still be sent to prison for having a malfunctioning semi-auto, because “[i]f you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.” In other words, a malfunction is no excuse, according to the government.

Kurt is correct that, unfortunately, the National Firearms Act makes no provision for a firearm that malfunctions.  If it fires more than one shot with a single function of the trigger, it’s a machine gun.  You can thank Congress for poor drafting of a law that never should pass constitutional muster in the first place.  But it’s not really correct to suggest that you will go to jail if your AR doubles on you at the range in earshot of the Five-O.

The reason that’s the case is thanks to a case known as Staples v. United States, which is a case that’s remarkably similar to the Olofson case.  In Staples, The Court ruled that Congress did not eliminate the Mens Rea requirement, and that it had to be considered as applied to gun laws.  Mens Rea, translated from Latin, means ‘guilty mind’, or that the criminal had some knowledge of wrongdoing that constituted a crime.  From Staples:

We concur in the Fifth Circuit’s conclusion on this point: “It is unthinkable to us that Congress intended to subject such law abiding, well intentioned citizens to a possible ten year term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” Anderson, supra, at 1254. As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction.” 342 U. S., at 263. We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).

It’s important to note, however, that Staples demands that the government prove that the defendant understand the characteristics of the firearm they possess as an element of proving the crime.  It does not demand that they prove the defendent knew it was unlawful to possess an unregistered machine gun.

We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.

So you are not automatically guilty of possessing or transferring a machine gun if your AR doubles up on you at the range one day, provided you did not understand yourself to be in possession of a machine gun.  If such a thing happens to you, however, it would behoove you to fix it as soon as humanly possible, and not fire the weapon until it is fixed.  If you are caught and prosecuted with the firearm in the intervening time, the prosecution will have to prove you believed you were in possession of a machine gun, rather than a malfunctioning semi-auto.  If your firearm is indeed merely malfunctioning, and there’s no evidence of any attempt at conversation, which would establish your understanding of the firearm as an automatic, the government will likely fail to meet its burden.

In the transcripts for the Olofson case, you can see the government went through effort to established Mens Rea.  Here we have the prosecutor in the direct examination of Robert Kiernicki, the kid Olofson was accused of transferring the firearm to:

Q. Okay. And I’m sorry, now what did he tell you about the selector switch? First of all, did he indicate to you whether he knew that that was an automatic function?
A. Yeah, he told me that the three-round burst wouldn’t work and that it would jam up.
Q. Did you know what he meant by “three-round burst”?
A. Yeah.
Q. What did you take him to mean?
A. Three rounds come out of it when you would pull the trigger.
Q. When you pull the trigger once?
A. Yeah.
Q. And when he was telling you this, did he tell you that he had fired it automatically in that three-round burst position and that the gun had jammed on him?
A. Yes.

Kiernicki’s testimony and sworn affidavits were as big a part of the government’s case as the tests the ATF did on the firearm.  In fact, without the Kiernicki’s testimony, the government would have had a much weaker case, and would have had to rely on the M16 trigger group as evidence of a guilty mind.  I think it’s quite likely a talented defense attorney could have gotten an acquittal.

It’s something to keep in mind, because the hazard of possessing a malfunctioning AR is real.  If you go show off to your buddies “Hey look, I can make this three round burst!” even if it’s a worn part causing a hammer follow, you just established a guilty mind.  The ATF is not lenient or forgiving in its enforcement of these laws, and it has a long history of pushing court rulings to their limits, or ignoring them entirely, in attempts to get convictions.  But, in general, if your AR malfunctions and doubles, you shouldn’t be criminally liable for it if you understand that you have a malfunctioning legal semi-auto, and act accordingly.  If you do end up in legal trouble, say nothing until you speak with an attorney.  In addition, we should strive to change or repeal the laws that create this type of hazard for ordinary gun owners.

20 thoughts on “Mens Rea and the National Firearms Act”

  1. The fact that Kiernicki was a paid informant of the BATFE casts, I believe, serious doubts on his credibility, and the fact that the BATFE’s strongest “evidence” was his testimony leads me to believe that this was a kangaroo court.

    By the way, this is a very minor quibble, but my name is actually “Hofmann”–with one “f” and two “n’s” (like Albert Hofmann, the discoverer of LSD–insert joke about how that explains my thought process here), rather than the usual “Hoffman.”

  2. I’ve corrected the name. Sorry about that. Actually, I’m really surprised his defense didn’t do more to question the integrity of the witness, given how key his testimony was to the case. But I don’t agree that it was a kangaroo court. I think the judge presiding was pretty fair to the defense. He could easily have dismissed the defense’s only witness, but he let it go forward, and even reprimanded the prosecution at one point for “going far afield” in questioning Len Savage.

    Olofson I think got convicted for two reasons 1) he didn’t exercise his right to remain silent when he should have. And 2) he had a public defender as counsel. After reading the whole trial transcript, it’s a great lesson in why attorneys tell you not to talk to the authorities if you’re subject of an investigation without an attorney present. Definitely, if the feds ever serve a warrant on you, the next words you utter should be to an attorney.

  3. Like I said, the name thing was a very minor quibble.

    I do agree that Olofson erred badly in how he dealt with the “case” against him.

    I still question the viability of America’s status as “land of the free,” when one has to pay an attorney because of a malfunctioning firearm.

  4. Back in the 90s I owned a rather sweet Garand that doubled on me at the range while shooting it unsupported. Talk about a wake up call.

    Yeah, I violated the above rules, I was using the modified “hunters” 5 round clips, and was startled enough to wonder if the clip contributed to the malfunction. I loaded a full 8 round clip and managed to get my finger off the trigger after the third round.
    Talk about uncontrollable muzzle climb! I unloaded and removed the trigger group and put the gun back in the case.
    A trip to Springfield Sporters and $20 had it back to normal with new parts replacing the worn ones. I was shocked by that too, he fixed the trigger group while I browsed all the surplus guns and didn’t even charge labor. That was back when Springfield Sporters still sold rifles directly to the public instead of just to FFLs – Pallets of Mausers, racks of SMLEs and crates of parts and accouterments. I loved that place and still mourn the change of business practices.

    Makes me wonder if the worn parts constitute a machine gun kit in the ATFE eyes? I think they are still floating around in my junk parts box.

  5. I’m kind of wondering if you could use Heller as an argument that the government must carve out an exception for lawful semi-automatics that have malfunctioned.

  6. Nosmo:

    I think that’s a fairly common malfunction in a well-used Garand. You were probably safe based on how you handled the situation. Your understanding was you had a legal semi-automatic Garand that had malfunctioned, and that is indeed what you had. If you had an overzealous ATF agent bust you for the double, there’s a strong possibility the US Attorney wouldn’t have thought he would have a case without being able to establish your guilty intent. I doubt there’d even be an indictment without that. Still, if one ever finds oneself faced with that kind of situation, don’t say a god damned thing to the ATF agent until you speak with an attorney.

    This risk has existed since the National Firearms Act has existed, but until Staples, under Clinton’s ATF, no one ever went after a guy for unknowing possession, arguing that it was a strict liability offense. Fortunately, The Court didn’t go for it, and there’s still a Mens Rea burden the government has to meet.

    One wonders what wonderful things are in store for us under Obama’s ATF.

  7. What is more interesting is that the NFA started as a tax issue. While it still prosecuted under the tax code, the ATF has been moved out from under the treasury department and into the DOJ as a law enforcement agency.

    All this time, effort and money is being prosecuted over a $200 tax issue. At a minimum, there should be an ability to pay a tax penalty – this is clearly not a criminal issue. There is NO VICTIM.

    There are thousands of other tax regulations that are not chased nearly as vigorously by the ATF. Take a look through the hundreds of tax regulations under Title 26, Subtitle E. Then try to locate any of the other penalties that are routinely – even sparsely – enforced. Many of the penalties include similar $10,000 fines and up to 5 years in prison.

    When is the last time we saw someone who home brews beer sent to prison? I am no lawyer, but look at TITLE 26 > Subtitle E > CHAPTER 51 > Subchapter A > PART I > Subpart D > § 5053 and the definition for tax exemptions for home brewers.

    [Beer for personal or family use
    Subject to regulation prescribed by the Secretary, any adult may, without payment of tax, produce beer for personal or family use and not for sale. The aggregate amount of beer exempt from tax under this subsection with respect to any household shall not exceed—
    (1) 200 gallons per calendar year if there are 2 or more adults in such household, or
    (2) 100 gallons per calendar year if there is only 1 adult in such household.
    For purposes of this subsection, the term “adult” means an individual who has attained 18 years of age, or the minimum age (if any) established by law applicable in the locality in which the household is situated at which beer may be sold to individuals, whichever is greater. ]

    So, if my neighbor brews his own beer, and gives it to me (not family) he is guilty of a crime. And a crime that comes with some relatively sever consequences.

    [Whoever evades or attempts to evade any tax imposed by section 5051 or 5091, or with intent to defraud the United States fails or refuses to keep and file true and accurate records and returns as required by section 5415 and regulations issued pursuant thereto, shall be fined not more than $5,000, or imprisoned not more than 5 years, or both, for each such offense, and shall forfeit all beer made by him or for him, and all the vessels, utensils, and apparatus used in making the same. ]

    But, I guess there would be some public outcry if a gang of heavily armed tacticool tax-collectors battered in someone’s basement door and sent a man (or woman) to prison for giving their home brewed beer to a neighbor.

    In as far as Olofson goes, the whole case was BS. The ATF railroaded the guy and couldn’t even provide documentation as to their testing protocols. Think about that… Sebastian, I think you work in technology. If you work for a public company, then you fall under the Sarbanes-Oxley Act. Can you imagine not having the documentation for your compliance testing procedures? But hey.. it’s the gov – the ATF – they’re better than you and me. No need to conform to the same standards as you and I (and Olofson)

  8. How does the quoted testimony prove mens rea though? Kiernicki first said he was told the three round burst did not work, and that it would cause a jam. He “[took] that to mean” three rounds would come out. Might Olofson have meant to say it didn’t work at all, and that it would jam on the first round?

    The final query there is a nasty compound question. Yes, he was told it fired automatically? Or yes, it jammed? Or some combination of the two? I.E, did Kiernicki assume it automatically jammed or some such?

    Or for that matter, did he even know there was a difference between auto and semi-auto when heard alongside “burst?” Half the reporters and politicians in the world get that one confused. Defense should have objected that the government was leading the witness.

    The “best” bits of evidence ATF had that this was intentional were the computer records of Olofson ordering M16 parts..

    ..which they admitted under cross were, what, a sling and magazines? There’s your mens rea to indict all of us. All you need is a jury that doesn’t know these spooky “parts” are interchangeable.

  9. In as far as Olofson goes, the whole case was BS. The ATF railroaded the guy and couldn’t even provide documentation as to their testing protocols. Think about that… Sebastian, I think you work in technology. If you work for a public company, then you fall under the Sarbanes-Oxley Act. Can you imagine not having the documentation for your compliance testing procedures? But hey.. it’s the gov – the ATF – they’re better than you and me. No need to conform to the same standards as you and I (and Olofson)

    Actually, what SOx requires or doesn’t require is a pretty grey area too from an IT point of view. There is a developing body of best practices developing on what would probably constitute compliance, but you don’t know for sure until you go to court with it. Congress drafts bad laws all the time. It’s one reason I think we’re better off if they are gridlocked.

    But that’s not to say you’re wrong about ATF’s testing procedures being a mess.

  10. illspirit:

    The thing I think that really was damaging was the kids testimony that Olofson said he had fired automatic at the club before without the police having any issues. Also, in one of the affidavits about burst mode not working because it was missing a part. But there was also a lot of circumstantial evidence that pointed to a guilty mind as well.

    Ultimately, it’s up to the jury whether they believe that element has been established, and they believed it in this case. My opinion is that Olofson was guilty of the crime he was charged with, based on the evidence presented, and the testimony in the Jury trials. I just don’t think what he did should be a crime.

  11. Skullz:

    I think Olofson was charged under 922(o), for the transfer of a machine gun manufactured after 1986, rather than the § 5861(d) of the Internal Revenue Code. 922(o) is part of the United States criminal code.

  12. “The thing I think that really was damaging was the kids testimony that Olofson said he had fired automatic at the club before without the police having any issues.”

    Yes, but this goes back to the kid’s level of understanding. Since there is no full-auto position in addition to burst, maybe he got semi-auto and auto confused. Perhaps Olofson was trying to reassure him that it was legal and said the police didn’t care about “semi-automatic,” but then Kiernicki assumed that must mean rapid fire of some sort because it was proceeded by a disclaimer.

    The kid was just learning to shoot the AR platform, no? With the terms auto, semi-auto, and burst being tossed back and forth, it’s possible he got them mixed up. Or am I the only one who reads the transcripts as if he is sometimes differentiating auto and burst?

    That the government was able to lead him to the testify that “Three rounds come out” from the phrase “three-round burst wouldn’t work” also demonstrates that he is either, A, easily confused, and/or B, not a linguist. To say the least.

    And who knows how much of this terminology he learned or relearned from coaching by ATF.

    Between the incredibility of the star witness and the circumstantial nature of the evidence, I see nothing to prove guilt beyond a reasonable doubt.

  13. Not to derail your topic, but if he’s being prosecuted under 922(o) (and I’ll assume you’re correct, rather than research it), this wouldn’t be an NFA issue – as NFA is tax / treasury. This would be the GCA 1968 amendment known as the Firearms Owner’s Protection Act – specifically the Hughes (may your favorite deity damn his soul) Amendment. Right?

  14. Yeah, the Hughes Amendment really pissed in the corn flakes of maybe the best piece of Federal gun legislation passed in my lifetime.

  15. Has anybody here tried to “bump fire” a semi-automatic rifle? I have not yet myself, but I have wondered if anybody has been criminally charged somehow for doing so.

  16. Bump firing is legal. It’s a single action of the trigger per one shot. The law doesn’t care if you actuate it by bump firing.

  17. Sebastian – I think there is at least one state which has outlawed bump firing already. It might be California. I’m rather certain devices such as the Hellfire trigger system and the BMF activator are illegal there.

  18. have you heard HR 45 act. it contains quite interesting topics for Firearms owners. which are listed below.

    A training class is required to be licensed.

    Disclosure of your storage method is required for license.

    A thumb print is required for license.

    Every sale recorded by the federal government.

    If you move, and don’t tell the Attorney General within 60 days, you are a criminal.

    If a firearm is stolen and you don’t report it, you are a criminal.

    There will be no grandfathered firearms. If you do not obtain a license and report every firearm you currently own, you are a criminal.

    There will be a license fee and a fee for the “services” provided at purchase time.

    Licenses must be renewed every 5 years.

    Now i think most of Firearm owners resubmit their firearms to government……

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