Abuse of Federal Police power and prosecutorial discretion.

By The Armorer on January 14, 2008 | | Comments (6)

Now let's move on to some real injustice. The linked story, if accurate in it's details, is a pretty clear example of Federal abuse of police power and prosecutorial discretion - and a, forgive me, dumb jury. It doesn't help that the law isn't well written - but this is as much about how the ATFE and federal prosecutors operate as it is badly worded laws.

From Worldnet Daily (admittedly not the most unbiased of news sources)

WEAPONS OF CHOICE Drill instructor convicted after rifle jams Guardsman guilty of illegally transferring 'machine gun' after firearm malfunctions

A drill instructor in the National Guard has been convicted in a Wisconsin federal court of illegally transferring a machine gun after a rifle he loaned to a student malfunctioned, setting off three shots before jamming.

The verdict of guilty on one count in the case against David Olofson was confirmed yesterday by the clerk's office in the U.S. District Court for the Eastern District of Wisconsin.

That means now that anyone whose weapon malfunctions is subject to charges of having or handling a banned gun, according to an expert witness who reports that the particular problem is a well-known malfunction and was even the subject of a recall from the manufacturer.

"If your semiautomatic rifle breaks or malfunctions you are now subject to prosecution. That is now a sad FACT. I guess we know now what Sen. Kennedy meant when he said he looked forward to working with [Acting Bureau of Alcohol, Tobacco, Firearms and Explosives Director] Mike Sullivan on Gun control issues, after his committee approved him for full Senate vote," Len Savage, a weaponry expert who runs Historic Arms LLC, said in a blog.

"To those in the sporting culture who have derided 'black guns' and so-called 'assault weapons'; Your double barreled shotgun is now next up to be seized and you could possibly be prosecuted if the ATF can get it to 'fire more than once,' he wrote in a blog run by Red's Trading Post.

"Hey, but don't worry," Savage said. "The people testing it have no procedures in writing and the testing will be in secret. Also if you know of information that proves YOUR innocence, maybe the ATF won't claim that it's tax information at your trial and prevent YOUR judge from viewing it."

Some amelioration of the problem could be gained if these bills were to move out of committee.

HR 1791: Fairness in Firearm Testing Act, which would "require the Bureau of Alcohol , Tobacco , Firearms , and Explosives to make video recordings of the examination and testing of firearms and ammunition, and for other purposes."

HR 4900: Bureau of Alcohol, Tobacco, Firearms, and Explosives Reform and Firearms Modernization Act of 2007. This act has much in it designed to keep ATFE from putting dealers out of business or putting 'em in jail for minor paperwork violations - vice *substantive* and *material* ones.

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6 Comments

By kat-missouri on January 14, 2008 1:02 PM
Mmm...I really, really hate this stuff. I was reading the historical laws and Supreme Court Cases that have created our current situation last night. It is hard not to conclude that the Supreme Court, past and present, has been influenced by outside events, not just reading the law or the constitution. That yes, indeed, it has often leaned towards the protection of government rights or powers over individuals. That bad case law has turned into other bad laws and erosion of rights. The other day, I couldn't believe that the DoJ would use the terrible argument that the purpose clause of "a well regulated militia" gave them the power to regulate arms. Well, the DoJ took that right out of already determined Supreme Court Case law. I tell you, I am new to this stuff, but I was shocked. And, it was clear that the courts made that statement and held up the governments case and right to do so because of experiences with organized crime and other crime sprees post WWI. That was really bad decision making. And not the first. The Presser decision was post Civil War and pretty much makes the same mistake. Now we're stuck with it because the Supreme Court will never reverse itself. Sucks.
 
By John of Argghhh! on January 14, 2008 1:24 PM
Hmmm. I think the Court reversed itself on Dred Scott... I'm betting we get a narrow, focused decision or a remand (?) back to the lower court - if for no other reason than what all these governmental amicus briefs are about: "Don't rule in such a way that overturns all the existing laws!" Some of the amicus briefs almost concede the question of the individual vs collective right argument - they want to preserve what they've got, and to keep the option open for more. I don't think anyone will be truly happy with the decision.
 
By Yu-Ain Gonnano on January 14, 2008 2:47 PM
"Don't rule in such a way that overturns all the existing laws!" The ironic thing is that Miller was more about being able to regulate non-military/militia weapons than regulate ownership by non-military/militia members. Which seems to suggest the .gov has more latitude to restrict a single shot .22LR rifle than an M-16. The .22LR rifle serves even less of a militia purpose than a sawed off shotgun.
 
By Grumpy on January 14, 2008 2:57 PM
John, I do believe I see an attitude. Don't worry, mine is only 40 years old. We look at this type of thing and ask, "When are we ever going to start actually using some common sense?" My Father passed away almast 26 years ago. To understand him, you need to understand, he was literally a genius with an IQ in top 1%. He designed and built machines that worked with glass, all by hand, no computers. One day, I actually stated the above question about the use of common sense. He came up behind me and whispered in my ear, "Son, I hate to tell you this, but I think somebody shot 'Common Sense' in the head with a Bereta using .22 shorts in the head behind the left ear, 2 shots." The older I get, the more I think the old man was right. The strange thing is this, to start to answer your question, This Nation needs to take a break. This is the hard part, our leaders, both parties, ALL branches need to collectively pull their heads out and smell the coffee. First, wash their head and face, then even have a cup of coffee. This will definitely improve their viewpoint. Then they will be able to make wiser choices. As always, Grumpy
 
By kat-missouri on January 14, 2008 5:29 PM
Good point. Dred Scott. But didn't they have to because congress passed the 14th amendment? After that, they could not claim any constitutional ground. Bizarrely, I cannot figure out how "shall not infringe" backed up with the 9th amendment ended up with any decision that rendered power to the government to regulate arms based on "a well regulated militia being necessary to a free state". I was getting ready to argue extensively about the foolishness of the argument when I discovered miller and presser, amongst others. That foolishness could lead to all sorts of restrictions as well as people pressing the issue based on what a militia typically has or has had at their disposal.
 
By Anonymous on January 14, 2008 11:50 PM
Sadly, BATF abuses are widespread. Their flimsy cases are often torn apart, if the presumed guilty parties are willing to pay the huge legal fees needed to get a skilled lawyer to fight the unlimited resources backing BATFE. Note that most of their cases are brought for paperwork errors, and folks falling for sting operations with very murky lines between right and wrong procedures. Darn few cases where they are actually taking guns away from violent criminals- which may be dangerous. In fact, in one state where the BATF is given the name and address of every prohibited person who tries to buy a gun and is turned down on the Brady check, they make no attempt to prosecute 99% of these easily proved felonies. Nor have they bothered to file federal charges in at least three robberies of FFL gun shops, another federal felony where perps were caught by the state cops. They demand 100% complilance with every single rule by those they have their heel upon, but fail to obey the plain letter of the law in meeting FFL application processing deadlines or maintaining the national database of machine guns. They refuse to make information available to help people obey the laws they enforce, and their testimony about certain issues is based on self proclaimed expertise with vague allusions to reference materials that they are unwilling to cite specifically. A seriously rogue agency, totally out of control, and with a vindictive nature if anyone crosses them! And that is under the watchful eye of a supposedly pro-gun rights adminstration. Just wait for the zealous enforcment to begin if/when Clinton or Obama and the Dems seize power.