August 1, 2008
A pro-Second Amendment group is taking the unusual step of asking for financial help for the family of a gun owner caught up in a bizarre prosecution for a malfunctioning firearm.
David Olofson is a U.S. Army veteran, Army Reservist and a gun enthusiast who loaned his personal 20-year-old AR-15 semi-automatic rifle to a neighbor who had expressed an interest in learning to shoot. A semi-automatic weapon fires one bullet each time the trigger is pulled. But – as Larry Pratt, executive director of Gun Owners of America, explains – when the neighbor took the gun to a range, it malfunctioned, firing several rounds with one trigger pull and then jamming."Now that, by normal people’s thinking is a malfunction. A gun that jams, even after it’s fired a small burst, is hardly a controllable firearm. That’s a gun that needs fixing," he explains. "But according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATF), that is a machine gun — and they got a jury to buy that."
Olofson was sentenced to 30 months in jail for "transferring a machine gun" to his neighbor. But Pratt says the government got that conviction based on what it did not tell the jury, not based on the facts of the case.
"They didn’t tell the jury that their witness, the fellow who had borrowed the gun, had been paid repeatedly by the federal government," says Pratt. "They didn’t tell the jury that they had back-dated the second lab test so that it would pre-date the criminal complaint against Mr. Olofson. The first lab test showed that it was a semi-automatic. The second lab test was where they ‘proved’ that it was an automatic. The judge, at conviction, overlooked the fact that the Supreme Court has defined a gun that behaves like Mr. Olofson’s as, ‘not a machine gun.’"
Pratt also accuses the BATF of withholding evidence that would have cleared Olofson. Some 20 years ago, the ATF issued a recall of the specific rifle that Olofson owned for malfunctioning in the manner that the Bureau now claims makes the rifle a machine gun. "The problem is, the other copy of the letter, that was sent to the manufacturer, burned up when the factory burned down in 2000," he notes. "So, we weren’t able to get a copy of the letter and the BATF just folded their arms and said, ‘You can’t have it.’"
Published testimony from the BATF firearms examiner who tested Olofson’s rifle shows he was originally unable to make the weapon fire as a machine gun and had to try alternative ammunition to recreate the malfunction. ATF examiner Max Kingery also testified at first that the weapon firing in fully-automatic mode was a malfunction, then contradicted himself in later testimony. BATF has refused media requests for comment on the case, saying only that obtaining a conviction proves they were right to prosecute Olofson.
As a result of the discrepancies in the case, Gun Owners of America is not only representing Olofson in his appeal of the conviction, the group is also asking gun owners and other Second Amendment supporters to help Olofson’s family while he remains in prison. Olofson’s wife is trying to pay their bills and care for their three children without her husband or his income while he fights the conviction. Information on the David Olofson Relief Fund is available on the Gun Owners of America website.