Question: when is a BB Gun a “firearm”?
Answer: When you bring it to Minnesota, under certain circumstances.
Just this week, the Minnesota Court of Appeals held, in the matter of State of Minnesota v. David Lee Haywood, that a BB Gun is, indeed, a “firearm” for purposes of Minnesota law, dashing the hopes of David Lee Haywood that he’d be able to avoid both a firearms conviction for being a felon-in-possession, and an extended stay in prison for owning a BB gun . . .
Haywood was legally barred from firearm ownership because in 2005, he had received a felony drug conviction, making him a prohibited person in the eyes of both federal and Minnesota law. After his first engagement with the folks at the Minnesota Department of Corrections was finished, Haywood was back on the streets, but still was barred from exercising all of his constitutionally-protected rights because of this junior varsity Mark of Cain.
Alas, Mr. Haywood somehow drew the attention of law enforcement again. In 2013, the Minnesota Star tells us, he was pulled over for a traffic stop, during which the local gendarme found what appeared to be a gun in his glove compartment.
The object in question was a Walther CP99 Compact .177-caliber BB gun, which sure looks like a
real firearm Walther P99 sidearm. The Court noted:
The record indicates that the BB gun looks like a miniature version of a standard Walther P99. The record also indicates that the BB gun has an effective range of 350 yards and a substantial muzzle velocity.
For the curious, Umarex USA’s website states that the CP99 Compact is a CO2-powered BB gun with a muzzle velocity of 345 fps, a capacity of 18 rounds, a barrel length of 3.25″, and an overall length of 6.6″. It has a ‘semi-automatic’ action, and a manual safety.
Haywood was charged with possessing a firearm as an ineligible person under Minn. Stat. § 609.165 Subd. 1b., which states that “[a]ny person who has been convicted of a crime of violence…and who ships, transports, possesses or receives a firearm or ammunition, commits a felony….” The statute doesn’t actually define the word “firearm” in that section; nevertheless, the trial judge instructed the jury that “a BB gun is a firearm under Minnesota law.” With that kind of instruction, naturally, Haywood was convicted, which was the cause of his appeal.
Before the Court of Appeals, Haywood put forth the argument you’d pretty much expect, citing such fundamental authorities as Black’s Law Dictionary (referring to a firearm as a “weapon that expels a projectile (such as a bullet or pellets) by the combustion of gunpowder or other explosives”), Random House Unabridged Dictionary, and Merriam-Webster’s Collegiate Dictionary (“a weapon from which a shot is discharged by gunpowder”.) “The BB gun in this case,” Haywood’s argument went, ” ‘cannot reasonably be considered a firearm’ because it does not utilize explosive force.”
Haywood also pointed to other parts of Minnesota code that expressly defined the term “firearm” as excluding BB guns, such as Minn. Stat. § 609.666, subd. 1 (2012) (defining “firearm” as “a device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion or force of combustion”) and Minn. Stat. § 609.669, subd. 2(2) (2012) (defining “firearm” as “any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of any such weapon”).
The Court of Appeals was having none of it, though. Although the term “firearm” had been left undefined in the law barring possession of a gun by a felon, a 1977 Minnesota Supreme Court opinion involving an armed robbery in which a Crossman .177-caliber CO2 BB pistol was used — State v. Seifert – had expanded the definition of the term to include CO2-powered BB guns. It also referred to a couple of subsequent cases in the Court of Appeals that held that a Crossman 760 Pump Master BB gun and a Walther PPK/S BB gun also were considered firearms (in the latter case, State v. Fleming, the Court of Appeals held that the term “firearm” “includes any gun from which a shot may be discharged by ‘gas or compressed air.'”) Since the Minnesota legislature never bothered changing the definition of “firearm” for the statute at issue, after the Supreme Court’s earlier ruling, “the legislature presumptively adopted the Minnesota Supreme Court’s definition.”
As a result of the Court’s reasoning, Haywood is out of luck and back in the cooler, where he’s expected to stay until around 2017. According to his lawyer, he intends to appeal the decision to the Minnesota Supreme Court, but given that the precedents cited by the Court of Appeals, I wouldn’t exactly be calling London to place any bets on him at this point.
The prosecutors, of course, celebrated the decision:
“It doesn’t matter if you bought a BB gun at Wal-Mart or a handgun at a gun shop,” said special assistant state public defender Grant Gibeau of the court’s reasoning. “Regardless of motive or intent, if you aren’t allowed to possess a firearm, you will end up going to prison….”
Ramsey County Attorney John Choi said Monday’s ruling gives more clarity to the issue. Today’s BB guns have greater velocity and range than BB guns from years ago, he said.
“Many BB guns are made to replicate popular firearms,” he said. “It’s a dangerous situation for the public and law enforcement. The guns can kill people.”
Well, I suppose that’s true. Shoot someone in the temple with a BB gun or an air rifle (especially at close range) and you could put them in a world of hurt.
Still, while the reasoning behind the decision seems sound, I am left wondering if the Minnesota Courts would hold that my old toy Star Trek phaser that shoots plastic discs via spring action that is surely still hidden away in a closet in my dad’s house would also meet this definition of “firearm”. That seems…anomalous to say the least.
If you find yourself wondering whether or not Minnesota courts would so expansively construe the term “firearm” when applying constitutional protections to the right to keep and bear arms, worry not! The Land of 10,000 Lakes is one of only six states in the Union that does not have a provision in the state constitution protecting the right to keep and bear arms. There was apparently an initiative to amend the Constitution in 2012, but it apparently failed to get on the ballot.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.