is a bow considered a firearm???

[Tom7227]

Part 2

In a soft air gun case where the charge was possession of a pistol without a permit a judge indicated that he would likely rule that these devices are “toys” and not pistols. The definition of pistol contained in Minn. Stat. 624.712 Subd. 2 excludes “toys.” If this issue had been anticipated it would be have been necessary to develop evidence on the issue of whether the devices are toys. In order to develop such evidence it may be necessary to conduct studies on how the devices are marketed as well as how the public perceives them. If the devices were classified as pistols numerous statutes would limit where they could be carried and restrict who could legally possess them. If they are considered toys there are a few statutes dealing with ‘replica firearms’ that prohibit possession in schools or day care centers and also prohibits the pointing of these devices at people. Care should be taken when charging soft air gun cases to assure that the facts are strong enough to withstand these types of challenges.

New York City has an ordinance which prohibits both the sale and possession of look alike firearms. New York City Code Chapter 10-131 Firearms. The possession portion of the ordinance makes it a crime to carry them in public, and the sale prohibition allows for the imposition of civil penalties against retailers who sell them. There also is a federal statute prohibiting the manufacture or shipping/receiving a "toy, look-alike, or imitation firearm" unless the device has a blaze orange plug barrel. See 15 U.S. C. §5001 (1988). Enforcement seems to be a bit haphazard.

Both BB guns and pellet guns clearly fall within the definition of ‘firearms’ in Minnesota Statutes. Significant sanctions can, and have been imposed for people who carry these guns illegally. Felons who are prohibited from having guns can end up doing 18 to 60 months in prison for having these guns. In several instances where the County Attorney has charged out cases involving soft air guns and felony convictions have been obtained. Those cases typically involve a case where someone has pointed the gun at a person and there is very strong case law that allows the use of non functioning weapons to be used as a basis for prosecution. Despite this legal reality there is a public perception that there are no controls on the use and sale of these guns. There were a number of cases where felons possess non-lethal firearms that look like ‘real’ guns. It is possible that they think they can’t be charged for having these items, or it is possible that they feel a need for some ‘protection’ but don’t have the means to get the real thing.

In several cases where a BB gun was the weapon used courts have long upheld the use of the definition of “firearms” contained in Minn. Stat. §97A.015 Subd. 19 which is that it includes “a gun that discharges shot or a projectile by means of an explosive, a gas, or compressed air.” These cases involve instances where the BB gun was actually used during the commission of the crime. Those cases are: State v. Siefert, 256 N.W. 2d 87 (Minn. 1977) aggravated robbery with .177-caliber CO 2 BB pistol; State v. Hysell, 449 N.W. 2d 741 (Minn. Ct. App. 1990) second-degree assault with a .177-caliber compressed air pistol which could be pumped to increase pellet velocity; State v. Newman, 538 N.W.2d 476 (Minn. Ct. App. 1995) drive by shooting with a BB Gun; State v. Schwalm, 1998 Minn. App. LEXIS 836 (Minn. Ct. App. 1998) review denied by 1998 Minn. LEXIS 673 (Minn. 1998) second degree assault and pointing a dangerous weapon with a pellet gun.

The Minnesota Court of Appeals accepted the use of a BB gun where the status of the suspect was the major issue rather than the actual use of the gun during the commission of the crime.

The Court of Appeals ruled that Minn. Stat. §624.713 Subd 1( prohibits a person who has been convicted of a crime of violence from possessing a BB gun. See State v. Fleming, 724 N.W.2d 537, 2006 Minn. App., LEXIS 159. The trial court had dismissed the case by finding that the definition of ‘pistol’ specifically excluded BB guns. The Court of Appeals ruled that the ‘any other firearm’ language in the statute 624.713 meant that the definition of ‘firearm’ contained in Minn. Stat. §97A.015 Subd. 19 was controlling. That section defines a firearm as “a gun that discharges shot or a projectile by means of an explosive, a gas, or compressed air.”

In the unpublished case of State v. Glaser, 2005 Minn. App. LEXIS 606 (Minn. Ct. App. 2005) review denied by 2005 Minn. LEXIS 510 (Minn. 2005 ) the court affirmed the conviction for felon in possession where the defendant had a common BB gun, a Daisy Powerline 880 rifle, in the back seat of his car.

“We continue to interpret the definition of firearm in criminal statutes broadly to best effectuate the statutory purpose: a BB gun is a firearm because the potential victim is not concerned with the method of propulsion. We acknowledge that our precedent may not align with the public’s common perception of a “firearm.” See The American Heritage Dictionary 684 (3d ed. 1996) (defining a firearm as “[a] weapon, especially a pistol or rifle, capable of firing a projectile and using an explosive charge as a propellant”). But the legislature has reenacted the felon-in-possession statutes following Seifert and Newman without altering this court’s application of the fish and game law definition to the criminal code, creating a presumption that the legislature adopts the appropriation. See Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 809 (Minn. Ct. App. 2000); Minn. Stat. § 645.17(4). It is the legislature’s prerogative to amend the statute. Because Newman remains good law, the district court did not err by concluding that the BB gun was a firearm for purposes of the felon-in-possession statute.”

Crimes charged under Minn. Stat. §609.666 Negligent Storage of Firearms, and Minn. Stat. §609.669 Civil Disorder, both require that the projectile be expelled by force of an explosion and thus a BB gun cannot be the basis for charging under those statutes.

[Tom7227]

Part 3

Paint ball guns

A paint ball gun is not a firearm for purposes of the drive by shooting statute, Minn. Stat. 609.66 Subd. 1(e)(a), or the felon in possession statutes. State v. Coauette, 601 N.W.2d 443, Minn. App. 1999. There is a chance that paint ball guns could be found to be a dangerous weapon but there would have to be evidence that the suspect intended to cause bodily harm. See What is a Dangerous Weapon, supra.

A number of court decisions have held that it is not necessary that a firearm be operable in order to obtain a conviction. The Supreme Court ruled that a firearm manufactured as such is a “firearm even if there is some mechanical defect which renders it temporarily inoperable. LaMere v State, 278 N.W. 2d 552 (Minn. 1979) where the charge was aggravated assault. An inoperable shotgun was sufficient for a conviction for possession of a short barreled shotgun in Gerdes v State, 319 N.W.2d 710 (Minn. 1982). In State v. Knaeble, 652 N.W.2d 551 (Minn. App. 2002) the Court of Appeals held that a person could be convicted of being a felon in possession of a firearm even if the gun was inoperable. In this case a shotgun was leaning against a wall in the hallway in a residence where defendant and his brother lived. The gun was about 100 years old and the firing springs had been removed, but a sporting goods merchant testified that the gun could be fired if an external force was applied to the hammers.

[Powerstroke]

Thank you Tom. That is alot of research. Great job. As everyone can see, its not a yes/no answer and there are many things to consider.

[Tom7227]

Just part of a book I wrote about guns and Minnesota laws.

[Powerstroke]

Really?!?....I'd be interested in that.

[RumRiverRat]

Really?!?....I'd be interested in that.

+1

[Big Dave2]

Bo and Luke Duke style

I'd check with authorities before I take the advice of some online rubes.

I'd stick with this answer.

[Tom7227]

Well i guess 34 years as a City Attorney, teaching at a hlaf dosen police departments, severeal CLE classes and charging hundreds of gun cases might not be good enough. Go ahead and rely on someone else if you chose.

[paul pachowicz]

reading questions about fed/civil/local/state laws make for good conversation. However, when I have a legal matter question there is only ONE place to inquire and that's the source. Even when you get an answer from a source it's good to remember the name of the person and remember that particular codeified law. But, like I said, it make for light reading anyway.

[LightningBG]

Well i guess 34 years as a City Attorney, teaching at a hlaf dosen police departments, severeal CLE classes and charging hundreds of gun cases might not be good enough. Go ahead and rely on someone else if you chose.

I don't think its that your information isn't accurate, the question is, will the person read and interpret the information correctly?

[DOUBLELUNG]

Call the DNR and ask what is a firearm in Minnesota. My Lawyer told me to do this. They will be happy to tell you. In Wisc. you can use a BB gun or pellot gun. FUN. A guy screws up in life and they hold it over him forever. Unless your ten years off probation then petition the courts to get your gun rights back. Good luck.

[bikeoutback]

A guy screws up in life and they hold it over him forever. Unless your ten years off probation then petition the courts to get your gun rights back. Good luck.

got a buddy in this situation only he recently moved to WI. When in MN as a resident he could still bow hunt, just not firearms hunt for deer and grouse and so forth. Moved to WI and they tell him he can't purchase a hunting license till he takes hunters safety. He asked them how is he suppose to do the field test when he's not allowed to possess a firearm. WI didn't have an answer for him on that one, good thing he's at his 10 years so he can hopefully not have to worry about it shortly.

[Double D]

Play it safe and take up full time fall fishing. Why risk it?

DD