10:55 pm Eastern
By Bob Unruh
© 2009 WorldNetDaily
“I am a witness in a still pending case, and I am being ‘leaned on,’” Len Savage, of Historic Arms LLC, told WND. “This is not the first time ATF has taken out vengeance during a court case.”
The dispute stems from Savage’s testimony during a Wisconsin gun dispute. There a man loaned out a gun, it fired several shots at one time at a gun range, and the federal government prosecuted him for transferring a “machine gun.”
Savage’s testimony contradicted government opinions that the gun was, in fact, a machine gun, because the type of rifle was known to have a problem with misfiring. The defendant, David Olofson, nonetheless, was convicted and his case is on appeal.
The agent whose opinion Savage had contradicted, Max Kingery, shortly after was assigned by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to review a gun part that Savage was proposing to build and sell as part of his business.
The government’s review involved Savage’s part, a conversion unit intended to allow a small number of owners of a specific type of legal machine gun to be able to shoot ammunition costing 1-2 cents per bullet rather than 25 cents.
But the agent added several pieces of metal, some chain, some wires and some duct tape to the conversion unit, allowing it to fire, and then classified the conversion unit itself as a machine gun.
“Max Kingery was assigned to evaluate the submitted product from my company. He is the one who contrived the test, and made the determination,” Savage told WND.
But he said he’s not going to let the decision go unchallenged, and he’ll contest the government’s opinion at a trial over its “arrest” of the gun part in question.
That case now has become formal, with the filing of documentation in federal court in the Northern District of Georgia and naming as a defendant “One Historic Arms Model 54RCCS ’7.62x54R Caliber Conversion System’ machine gun, Serial No. VI.”
“Plaintiff requests that the court issue a warrant and summons for the arrest and seizure of the defendant property; that notice of this action be given to all persons known or thought to have an interest in or right against the defendant property; that the defendant property be forfeited and condemned to the United States of America…” the government’s civil filing claims.
Several WND messages left with two different offices of the federal agency over a period of two days requesting a comment were not returned.“Don’t forget the guy who did the evaluation is the guy I testified against four months previously,” Savage said. “That’s impropriety.”
He said, in fact, if anyone made a “machine gun” in this case, it is the government, since its agents added the materials needed to make the conversion unit fire a bullet.
“I didn’t submit it with those parts,” he said.
He said he had proposed building about 350 of the units to sell to customers who already have been approved by the government to have and use the type of machine gun they would fit. But the government’s decision to add parts and define it as a machine gun stymies not only that plan, but apparently is costing him possession of the unit he submitted for examination.
Savage told WND the logic behind the addition of the parts and then the determination the conversion unit is a machine gun doesn’t follow.
“If you tie a string on both triggers of daddy’s double barreled [shotgun] then that would be a machine gun too,” he said, citing the government’s definition of anything that causes multiple shots with a single trigger action.
He said the government did, in fact, make just that determination, but eventually backed away partly.
In 1996, the Firearms Technology Branch of the federal agency determined that “a 14-inch long shoestring with a loop at each end” when attached to a rifle “caused the weapon to fire repeatedly until finger pressure was released from the string.”
“Because this item was designed and intended to convert a semiautomatic rifle into a machine gun, FTB determined that it was a machine gun…,” the agency confirmed in a 2004 letter.
However, in 2007, it followed, “Upon further review, we have determined that the string by itself is not a machine gun, whether or not there are loops tied on the ends. However, when the string is added to a semiautomatic firearm … the result is a firearm that fires automatically and consequently would be classified as a machine gun.”
Savage said such logic should apply in his case, because his conversion unit – without the addition of the extra materials added by the government – doesn’t fire.
He said the government is in the processing of “arresting” the conversion unit, and then a trial will be scheduled for a determination. The government wants ownership of the unit as well as its costs in the case.
Savage wants a determination that his unit is a repair part or conversion unit.
And he said if the government wins its argument, there will be further complications, since the agency has made conflicting determinations in the past.
Specifically, he said, the AFT has ruled that for MAC type machine guns, the upper portion “that contains the bolt, recoil system and barrel … to be a ‘gun part,’ not even a firearm.”
“All of these without exception would fail the ATF’s contrived test,” he said. “If I took the tape and zip tie route that ATF demonstrated in detail and put that on the stock unit, I have a zip gun, just as illegal.”
“This ‘test’ will turn any upper that has a feed device into not only a firearm, but a machine gun,” he said.
Savage’s testimony in the Olofson case, in Berlin, Wis., harshly criticized the government’s weapons testing procedures. In that case, the defendant was convicted and sentenced to 30 months in jail for loaning a rifle that misfired, letting off three bullets at one time.
The government then classified it a machine gun, and convicted Olofson of “transferring” such a weapon. He surrendered to federal authorities and is serving his term, prompting the Gun Owners of America to issue a warning about the owner’s liability should any semi-automatic weapon ever misfire.
“A gun that malfunctions is not a machine gun,” Larry Pratt, executive director of GOA, said at the time. “What the [federal Bureau of Alcohol, Tobacco, Firearms and Explosives] has done in the Olofson case has set a precedent that could make any of the millions of Americans that own semi-automatic firearms suddenly the owner [of] an unregistered machine gun at the moment the gun malfunctions.”
When U.S. District Judge Charles Clevert imposed the sentence, a commentary in Guns Magazine said, “It didn’t matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier … that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back,” said
“It didn’t matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn’t even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today,” the magazine said. “What mattered was the government’s position that none of the above was relevant because ‘[T]here’s no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.’
“No matter what the cause.”
Savage had told the agency in an earlier letter the decision to install the additional parts on his conversion unit “in order to induce full auto fire [is] clear and reliable evidence that they were contrived to deny my constitutional rights.”
He said during an interview with Jews for the Preservation of Firearms Ownership that 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.”
He said the rifle, which was subject to a manufacturer’s recall because of mechanical problems at one point, malfunctioned because of the way it was made.
Savage said once the government confiscated the gun, things got worse.
“They examined and test fired the rifle; then declared it to be ‘just a rifle,’” Savage said. But when agents demanded another test, a different ammunition was used and the result was a machine gun classification.
“Why are they doing this, especially since many other caliber conversion uppers exist that are not so classified? Will this area be revisited? Or is this payback for Savage testifying on behalf of David Olofson and in other cases?”