On August 28, 2009, a Petition for Certiorari was filed with the U.S. Supreme Court, on behalf of Army Reservist David Olofson, urging the Court to grant Certiorari to review the Seventh Circuit decision affirming Olofson’s conviction. The Petition was docketed on August 31, 2009. Amicus briefs are due by September 30, 2009.

Olofson was sentenced to prison for 30 months for transferring a “machine gun” — which really was a lawful-to-own, semi-automatic AR-15 rifle which occasionally manifested a “hammer-follow” malfunction, resulting in short bursts followed by jamming.

The prosecutor tried the case on the theory that a firearm’s malfunction is no defense, and any weapon which fires more than one round with a single pull of the trigger is a “machinegun,” under the National Firearms Act- “no matter what the cause.”

This case is well known in the “black-rifle” community, and has been featured on several occasions by Lou Dobbs (January 22, 2009).

See also Lou Dobbs from February 18, 2009.

At the heart of Olofson’s Petition is the claim that his conviction was obtained and affirmed only by the adoption of a definition of “machine gun” directly contrary to the Supreme Court’s definition of that term in Staples v. United States, 511 U.S. 600 (1994).

This is an important case, as it puts at risk every owner of a semi-automatic rifle, shotgun or handgun of being convicted of a felony for owning a malfunctioning weapon that “doubles” or otherwise exhibits multiple-round fire. Gun Owners of America, Inc. and Gun Owners Foundation funded the appellate work for this case.

The Petition for Certiorari appears here.

The Staples case requires that defendant have knowledge that a weapon is a machine gun and the U.S. Attorney’s office has a written policy instructing its attorneys to be very diligent regarding the issue of whether a defendant possesses such requisite knowledge.

The following is an excerpt from the government’s brief regarding Olofson’s PRETRIAL MOTION TO EXCLUDE EVIDENCE in the Olofson case:

On December 5, 2006, a grand jury sitting in the Eastern District of Wisconsin returned a one count indictment against David Roland Olofson (“Olofson”), charging him with knowingly transferring a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2).

The government asserts that in order to establish a violation of U.S.C. § 922(o) it must prove (1) that
Olofson transferred a weapon that shoots, is designed to shoot, or can easily be restored to shoot automatically more than one shot, without manual reloading, by a single function of the trigger; and (2) that the defendant knew, or was aware of, the essential characteristics of the firearm that made it a “machinegun.” United States v. McGiffen, 267 F.3d 581, 590 (7th Cir. 2001).

The government then argues:

The government expects the evidence at trial to establish that Olofson provided the machinegun in question to another individual. Moreover, the evidence will establish that Olofson converted the gun into a machinegun. The manual describing how that conversion can be accomplished, the tools for making such a conversion, and the components used to construct firearms all are relevant evidence. Such evidence will corroborate witness testimony as to Olofson’s converting the firearm in question into one that satisfies the statutory definition of a “machinegun.” In short, Olofson’s know-how and his possession of necessary tools and components are a part - and only a part - of the evidence that makes it more likely that he knew that the weapon in question was a machinegun. The evidence is therefore relevant under Fed. R. Evid. 401, and there is no basis for prohibiting its introduction at trial.

(Gov’t’s Br. at 2.)

But see the appellate brief filed by Gun Owners of America.

And see Petition for Certiorari.