Monday, March 17, 2008

BATFE: Out of Control?

Here's an interesting case from just up the road in Berlin, WI.

...Olofson had been instructing a man in the use of guns, and the student asked to borrow a rifle for some shooting practice.

"Mr. Olofson was nice enough to accommodate him," Savage said. So the student, Robert Kiernicki, went to a range and fired about 120 rounds. "He went to put in another magazine and the rifle shot three times, then jammed," Savage said.

A couple of police officers who also were at the ranged immediately approached him and started asking questions about the "automatic" fire, and he told them it was a borrowed weapon.

"Mr. Olofson, being a responsible person, went down to the police station and said, 'I'm in the National Guard. I know what a machine gun looks like. That's not it,'" Savage said.

But instead of having the issues resolve, Savage said, it got worse.

He reported that because of the malfunction, the rifle was seized and sent to the Firearm Technology Branch, the testing arm of the federal agency.

"The examined and test fired the rifle; then declared it to be 'just a rifle,'" Savage said. "You would think it would all be resolved at this point, this was merely the beginning."

The local BATFE bunch asked for a "re-test" of the weapon, and the lab obliged.

"FTB has no standardized testing procedures, in fact it has no written procedures at all for testing firearms," Savage said. "They had no standard to stick to, and gleefully tried again. The results this time...'a machinegun.' ATF with a self-admitted 50 percent error rate pursued an indictment and Mr. Olofson was charged with 'Unlawful transfer of a machinegun.'. Not possession, not even Robert Kiernicki was charged with possession (who actually possessed the rifle), though the ATF paid Mr. Kiernicki 'an undisclosed amount of money' to testify against Mr. Olofson at trial," Savage said.

Curiouser and curiouser.

And then during the trial, the prosecution told the judge it would not provide some information defense lawyers felt would clear their client, Savage continued. That included the fact that the rifle's manufacturer, Olympic Arms, had been issued a recall notice for that very model in 1986 over an issue of guns inadvertently slipping into full automatic mode, if certain parts were worn or if certain ammunition was used

There's a lot missing from the narrative--like, for example, why BATFE decided that they were going to go the "rules are rules" route here instead of using common sense and reaching an agreement short of criminal conviction.

For that matter, why the US Attorney, Biskupic, chose to pursue the case when it should have been clear to him that such pursuit would be subject to close examination (to say the least.)

There's also room to question whether Olofson followed up on the recall notice to inspect and replace (if necessary) the worn or dirty parts--or why his student used ammo which had a track record of failing--or why the student did not clean the weapon after popping more than 800 rounds through it at the range.

At the same time, SOME weight must be given to "intent." It would seem that Olofson did not INTEND to create or keep a full-auto weapon--nor did his student INTEND to make the weapon go full-auto.


HT: Kevin Fischer

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