Neither Olofson nor his friend was charged with possession of an unregistered machinegun or with illegally manufacturing, modifying, or otherwise making a machinegun. Obviously ATF did not believe they could convince a jury beyond a reasonable doubt that Mr. Olofson or his friend had intentionally altered the rifle to fire full-auto so they prosecuted on the easier charge of transferring. Everyone agreed that the gun belonged to Olofson and that he had loaned it to his friend. That meant that the only issue in question in the case was whether the gun was a machinegun. Since ATF is the final arbiter in determining whether a gun is a machinegun, and the law defining machineguns tends to be selectively interpreted by them, the government had a distinct advantage.
As a matter of fact, when the ATF Firearms Technical Branch (FTB) examined the rifle they concluded that it was not a machinegun. They did find that if the Safety switch was moved beyond its normal range of motion, the gun would fire once and jam, leaving a loaded round in the chamber. They determined that moving the Safety in such a way interfered with the trigger disconnector causing the hammer to follow the bolt as it returned to battery rather than being stopped by the sear; a fairly common malfunction known as hammer-follow.
At the request of the local ATF agent, the FTB tested the gun a second time using a brand of .223 ammunition known for having sensitive primers. Those tests resulted in intermittent, unregulated, automatic fire and jamming due to hammer-follow, but this time the FTB concluded that, under strict interpretation of the law, the gun’s malfunction did make it a machinegun.
The cornerstone of this charge is the government’s contention that it doesn’t matter whether a gun fires multiple shots as a result of malfunction or modification because the law defines a machinegun as; “… any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” While on the witness stand, firearms expert Len Savage asked the Assistant US Attorney prosecuting the case if that would make his grandfather’s old double-gun a machinegun if it malfunctioned and fired both barrels with one pull of the trigger. The AUSA responded by paraphrasing the legal definition of a machinegun with emphasis placed on “any weapon which shoots… more than one shot… by a single function of the trigger.”
In the Olofson case, the government entered into evidence a tightly edited video clip of one of their testers firing Olofson’s gun for a relatively long full-auto string. The cyclic rate was estimated to be near 1700 rounds per minute, more than twice that of a properly regulated M16. The shooter clearly understood the danger involved as he was holding the firearm well away from his face and body in obvious fear that the rifle would break apart at any moment.
At the government’s insistence, the court refused to allow Olofson’s firearms expert to physically examine the gun; he was only allowed to observe as an ATF employee took the gun through a function check and opened the action to his view. What he saw were standard, unaltered components of the same type and configuration that were included in this particular brand of rifle from the factory over two decades ago; parts that are known by ATF to produce exactly the type of malfunction noted and in response to which ATF had once ordered a safety recall.
