8/08 Collateral Damage From The Olofson Case

Collateral Damage From The Olofson Case

Daniel White
As published in the Firearms Coalition

When David Olofson went to court to fight charges of illegally transferring a machinegun, one of the obstacles he faced was finding expert witnesses to support his position. Olofson’s accusers were from the Bureau of Alcohol, Tobacco, Firearms, and Explosives — which is the same agency overseeing the firearms industry; licensing dealers, manufacturers, importers, and collectors, etc. Dealing with ATF is a required part of being in the firearms business and it is not good business to get on their bad side, thus industry experts were not lining up in support of Olofson.

Olofson did find an industry expert to stand up for him in court though. Len Savage of Historic Arms, LLC, a designer, manufacturer, and consultant stepped up and testified in Olofson’s behalf. He explained to Olofson’s jury that “hammer follow,” as occurred in Olofson’s rifle, is a relatively common malfunction among semi-auto firearms. He reported that use of M-16 parts in the manufacture of AR-15’s was a very common practice for many years — particularly during the time Olofson’s rifle was made. He testified that guns with more M-16 parts in them than were in Olofson’s have been rejected for registration as machineguns by ATF because, like Olofson’s rifle, they did not have an auto-sear designed to make them full-auto. And Savage discussed the lack of written testing procedures or standards, which leaves much to the discretion — and imagination — of the individual Firearm Enforcement Officers doing the testing.

During the Olofson trial, the key technical witness for ATF was Firearm Enforcement Officer Max Kingery of ATF’s Firearms Technical Branch. Kingery was the officer who originally tested Olofson’s rifle and determined that it was not a machinegun. It was also Kingery who, at the request of the arresting Field Agent, retested the rifle and concluded that it was a machinegun after all. The majority of Len Savage’s testimony was aimed at discrediting the testing procedures of the ATF-FTB and specifically the conclusions of FEO Max Kingery.

A few months later Savage submitted a prototype for a new caliber conversion unit for MAC-style machineguns. The project was, by an amazing coincidence, assigned to FEO Max Kingery. Even though ATF has consistently determined that such conversion units are not firearms at all, FEO Kingery concluded that Savage’s unit was a machinegun.

Like most automatics, MAC-type machineguns can be broken down into two major component groups; the upper and lower receiver. The lower is the part which is considered the firearm and must be serial numbered and transferred under strict federal guidelines. The upper receiver, like the upper of an AR-15 or the slide of a 1911, is not controlled at all. There have been a variety of upper receivers available for the MAC for many years. All of them use an open bolt firing system as does the unit designed by Savage. In discussing his design with ATF-FTB, concern was expressed about “prohibited persons” being able to legally possess the device. To assuage these concerns, Savage chose to designate his unit as a short-barreled rifle under NFA. This concession might prove to be his biggest mistake because it presents the unit as a firearm in and of itself. Even though there are similar units which are designated as guns and not machineguns by ATF, the designation might have been the crack in the door which allowed ATF-FTB to make the leap from unregulated caliber conversion unit to machinegun.

Rather than testing Savage’s design by attaching it to a MAC lower as intended, Officer Kingery decided to fabricate a firing structure by clamping the upper receiver to a bench and securing it with a piece of scrap aluminum, and a length of chain. He then loaded 3 rounds, pulled back the bolt, and released it. Since the design fires from an open bolt, all three rounds were fired. The test was repeated and the official conclusion rendered that this MAC upper receiver-caliber conversion unit was a machinegun which would not be legal for sale to the public due to the federal ban on the sale of any machinegun manufactured after 1986. Though this decision seems to fly in the face of decades of ATF rulings, the bureau is standing by the decision and has threatened Savage with forfeiture of his property if he does not immediately register it as a machinegun. Savage has refused and invited the forfeiture hearing in hopes that it will allow common sense to prevail. It is easily demonstrable that any of the currently available and unregulated MAC upper receiver — caliber conversion units will function in a full-auto mode if subjected to the same duct-tape and bailing-wire modifications used on his unit.

While common sense, history, and principle are firmly on Savage’s side, a technicality and guile might lean toward the proven manipulative, vindictive, and duplicitous ATF. Fighting City Hall is nothing compared to trying to fight the BATFE. Good luck Len.


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