Month: May 2009

The 7th Circuit Court of Appeals handed down a decision denying an appeal in the case of US vs. Olofson.  The Olofson appeal was well argued, but ultimately did not prevail.  Let’s look at the issues, in summary:

First issues was in regards to jury instructions.  Olofson contends that the jury was given no instructions on the definition of the word “automatically,” arguing that it is distinct from his firearm, which is described as malfunctioning.  Olofson’s attorneys tried to get the courts to adopt dicta in other cases, which suggested a different definition.  The court goes into a lengthy analysis of what the case law requires, and argues that the case law works against the jury being required to be given an instruction on the definition of automatic.  The Appeals Court then goes into an originalist analysis of the meaning of “automatic” as applied to firearms at the time the NFA was adopted.  What’s interesting is they argue:

That interpretation clearly forecloses the argument that a weapon is not a machinegun merely because it stopped firing due to a malfunction; indeed, the reason a weapon ceased firing is not a matter with which §5845(b) is concerned. Under that interpretation, however, a defendant can still argue that the reason a gun fired more than one round (with a single pull of the trigger without manual reloading) was due to a malfunction—i.e., the additional rounds fired resulted from a mishap rather than from a regular self-acting mechanism.

What’s important for future cases is this still leaves a defense on the table for someone who legitimately has a firearm which is malfunctioning.  As I mentioned in regards to the trial transcript, what sealed Olofson’s fate was his prior knowledge of the firearm’s capabiity before transferring it.  That doesn’t make the law right, but that is what it says.  I think Olofson’s attorneys were smart to make the argument they did, and if it had prevailed, could have gotten him a new trial with better representation, and carved out a far wider exception for malfunctioning firearms.

The second argument presented in the appeal was that the evidence was insufficient in order to obtain a conviction.  In the appeal, Olofson’s attorneys argued that:

Neither the lay testimony, nor the expert testimony, taken in the most favorable light for the government, established that Olofson’s AR-15 was a machinegun according to the Staples definition.  As noted above, Kiernicki, the person to whom Olofson loaned the firearm, testified simply that, at the single pull of the trigger, the AR-15 fired three rounds and then jammed.

Relying on the Staples definition of “automatically” that was argued previously, they are attempt to argue the definition of “automatically” adopted in Staples essentially means the firearm malfunctioned rather than fired as a machine gun.  The Appeals Court deals with that issue by arguing that the legal standard is:

When a defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the government and will reverse the conviction only if no rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Castaldi

The Appeals Court then goes on to argue that the jury was presented with evidence showing that the firearm in question fired more than one round with a single function of the trigger, and that Olofson was aware of these characteristics, and being aware of both of these, “evidence was adequate to permit a reasonable jury to find beyond a reasonable doubt that Olofson transferred a ‘machinegun’ as defined by § 5845(b).”

The third prong of the appeal was that 17 USC 922 (o) and 924 (a)(2) are unconstitutionally vauge.  The apply the Lim standard:

A statute is unconstitutionally vague if it either “1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or 2) fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the statute.

I would argue that a statute that can potentially classify a malfunctioning firearm as a machine gun, which § 5845(b) could be read to do, fails on both counts, when you consider that a constitutionally protected right is at play.  Olofson’s appeal does not make a Second Amendment claim, but this ruling would leave the door open to a future case which could claim that because ownership of a semi-automatic firearm is constitutionally protected, that the statute, rather than being vauge, is unconstitutional, because it creates a legal hazard for owning semi-automatic firearms which malfunction.

The fourth prong centers around Len Savage’s exclusion from the courtroom during the testimony of the Government’s expert witness.  This gets into the rather mundane Federal Rules of Evidence.  Here the Appeals Court rules that the burden was on Olofon (really his attorney at trial) to make the case that the rule allowing Savage to remain in the courtroom, and that the argument wasn’t raised at trial:

Second, Olofson stated that he “would like to have Mr. Savage present to hear” the government expert’s testimony on malfunctions so that he could “rebut or add information” if such testimony was incomplete or incorrect. While no precise incantation is required, we doubt whether those statements advanced the argument that Savage’s presence was essential under Rule 615(3). Olofson did not tell the district court (as he tells us on appeal) that Savage’s presence was of critical import to his highlytechnical defense that the AR-15 malfunctioned. Even assuming that he did make the argument, Olofson did not carry his burden of demonstrating essentiality. The defendant stated that Savage should be allowed to hear the government expert’s testimony so that Savage could “rebut or add information” to any inaccurate testimony about malfunctions, but Olofson did not tell the district court why Savage’s presence was necessary to achieve that end.

The Appeals Court seems to be saying here that the argument wasn’t raised at trial, so it seems to be a bit of a “you snooze, you lose” type situation, but I won’t pretend to be an expert on Federal Rules of Evidence.

The final prong is probably the area where it seemed the government did the most damage to Olofon’s case, which is not allowing for discovery of certain documents, and for not disclosing ATF’s testing procedures.  The court rules:

Regarding the first non-disclosed item—the ATF’s internal procedures for test-firing AR-15 rifles—Olofson says he wanted that information because “[f]ailure to follow those procedures by changing the type of ammunition in the second test could demonstrate that the tests had been manipulated to arrive at a reversal of the results of the first test.” We do not see how that information could have exculpated Olofson; section 5845(b) does not require compliance with ATF test-fire procedures in order for a weapon to qualify as a machinegun, nor must the weapon fire any particular grade of ammunition or in the prohibited fashion during the first test-fire.

The Court is basically ruling that the law does not require ATF to document and standardize its testing procedures, and that it is free to do what it did, in retesting the gun until it got the desired result.  The court is correct that the law does not require this, but should it?  Given the hypertechnical nature of gun design, it probably should have some easily met standard.  But that’s something that Congress needs to address.  Finally the Appeals Court rules on the ATF documents that were not turned over:

We subsequently ordered that document to be unsealed. That evidence is a 1983 letter from the ATF to the manufacturer of the AR-15 in which the ATF advised the company that the installation of certain M-16 parts in AR-15 receivers may permit the weapon to fire automatically even though an automatic sear is not present. We agree with the district court that the document is not exculpatory: it has no bearing on Olofson’s knowledge of whether his AR-15 was a machinegun.

The conclusion you can’t help but notice that the courts, at least in the 7th Circuit, are reading the law absolutely literally, and are not willing to carve out broad exceptions to the National Firearms Act definition of a machine gun.  The Appeals Court hinted that there are still legal protections for folks who do legitimately have malfunctioning firearms, but then in other parts of this decision refute the notion, and argue the literal definition.  What it boils down to is that if you have a firearm that fires more than one round per single pull of the trigger, and you know it does this, you need to take it to a gunsmith and get it fixed pronto, because by the strict legal definition, you are in possession of a machine gun.

Still unexplored is what i think is an interesting notion, which is whether the Second Amendment of the United States makes § 5845(b) unconstitutionally broad, since it can apply to a semi-automatic firearm that merely malfunctions.  Olofson’s attorneys did not raise that issue in his appeal, so that is still on the table.  I think it was wise that they didn’t raise it, since we do not yet have any precedent that there’s a constitutional right to own any kind of firearm other than a handgun.  Perhaps someday that issue can be raised, but as it is now, the National Firearms Act doesn’t have much to say about malfunctioning firearms, so fix them quick and quiet if it ever happens to you.