SailorsAllen Law

You’ll shoot your eye out, but you won’t go to prison.

October 19, 2016, will forever be known, in the hallowed halls of the Minnesota Supreme Court as the day of the BB gun.

Actually, that is probably not true but the court did do something that will have a major impact on the justice system.   In a published case that the entire state has to follow; they did what any 8-year old already knows: treat BB guns different from regular guns.  The case is called

The case is called State v. Haywood, A14-1792.  The facts are as follows:

On New Years Day of 2013, Mr. Hayward was driving in downtown in St. Paul instead of watching some parade on TV.  He was pulled over and arrested for violating a no-contact order.  The officer then performed an inventory search of the car.   Officers do this if they are going to tow a car and want to see what is inside first.  They say it is to perform a care-taking function, to inventory the property.   However, a lot of the time, as you can imagine, they find contraband inside.  But this case is not about inventory searches, it is about the right to shoot at squirrels without government intrusion.  In Mr. Hayward’s glove compartment was a BB gun.  The BB gun was is a CO2 air pistol replica of the Walther p99 Compact.  Mr. Hayward had a prior felony conviction that prevented him from lawfully possessing a firearm so the State charged him with one count of Possession of a Firearm by an Ineligible Person under Minn. Stat. § 609.165, subd. 1b.

Mr. Hayward moved to dismiss the charge arguing that a BB gun is not a firearm.  The district court denied his request.  At trial, the jury was instructed that a BB gun is a firearm under Minnesota law.  He was found guilty and sentenced to the mandatory minimum 60 month sentence.  He appealed to the Court of Appeals who upheld the decision of the district court.  He then appealed to the MN Supreme Court.

The question is whether an air-powered BB gun is a firearm under Minn. Stat. § 609.165?

The first thing the Court did was to look at the statute, which said:

(a) Any person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.

The clear takeaway from that is that they did not define the word “firearm.”   Next, the Court looked at a case from 1977.  State v. Siefert, 256 N.W.2d 87-88 (Minn. 1977).  In Siefert, he pled guilty to an aggravated robbery which required proof that he possessed a dangerous weapon while committing the robbery, Minn. Stat. § 609.245 (1974).  Minnesota Statutes § 609.02, subd. 6, defined “dangerous weapon” as “any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm . . . .”

Siefert later challenged his plea that a BB gun was a dangerous weapon.   The district court denied his motion and the court of appeals affirmed that decision.  The Minnesota supreme court then tackled the question and affirmed the previously affirmed saying:

“In our opinion, the fact that the gun defendant used required gas rather than gunpowder to discharge its projectile does not mean, as defendant contends, that the gun could not be a firearm within the meaning of the term “firearm” used in [section] 609.02.  Having statutory purpose in mind, we think that term should be defined broadly to include guns using newer types of projectile propellants and should not be restricted in meaning to guns using gunpowder. Id.”

So the State, in what can only be described as a selfless argument to save eyeballs from being shot out, argued Siefert, Siefert.  Siefert.  That has been the law for 40 years and it should remain that way.  Haywood said maybe the court should reconsider Siefert and took the fight to the dictionaries by arguing:

That in order for an object to be a “firearm,” the object must use gunpowder or some similar chemical explosive force.  He said, (well his attorneys said) because an air-powered BB gun does not fire bullets or use explosive force, it is not a firearm under Minn. Stat. § 609.165. The Supreme Court agreed.

The Supreme Court agreed.

In the absence of a statutory definition, the court looks to dictionary definitions to determine the plain meaning of words. Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 301 (Minn. 2014); see also Abrahamson v. St. Louis Cty. Sch. Dist, 819 N.W.2d 129, 133 (Minn. 2012)

Here are what the dictionaries said:

  • Merriam-Webster defines firearm as a “weapon from which a shot is discharged by gunpowder.” Merriam- Webster’s Collegiate Dictionary 471 (11th ed. 2003).
  • Webster’s defines firearm as “a small arms weapon, as a rifle or pistol, from which a projectile is fired by gun-powder.” Random House Webster’s Unabridged Dictionary 722 (2d ed. 2001).
  • The American Heritage Dictionary defines firearm as “[a] weapon, especially a pistol or rifle, capable of firing a projectile and using an explosive charge as a propellant.” The American Heritage Dictionary of the English Language 661 (5th ed. 2011)
  • Black’s Law Dictionary defines firearm as “[a] weapon that expels a projectile (such as a bullet or pellets) by the combustion of gunpowder or other explosive.” Firearm, Black’s Law Dictionary (9th ed.B 2009).

In sum, dictionaries consistently define “firearm” as including only weapons that use explosive force.  The court goes on to cite other statutes define “firearm” as a device that expels a projectile by the action or force of an explosion or combustion.    The court even referred to another statute that makes it a crime to furnish a firearm or an airgun of any kind to a child under the age of 14 outside of a municipality without parental permission.  Minn. Stat. § 609.66, subd. 1(a)(6).

This is a huge deal.  Before if you were a felon and you could not possess a firearm due to a conviction for a “crime of violence” under Minn. Stat. § 624.712, Subd. 5:

Crime of violence. “Crime of violence” means: felony convictions of the following offenses: sections 609.185 (murder in the first degree); 609.19 (murder in the second degree); 609.195 (murder in the third degree); 609.20 (manslaughter in the first degree); 609.205 (manslaughter in the second degree); 609.215 (aiding suicide and aiding attempted suicide); 609.221 (assault in the first degree); 609.222 (assault in the second degree); 609.223 (assault in the third degree); 609.2231 (assault in the fourth degree); 609.224 (assault in the fifth degree); 609.2242 (domestic assault); 609.2247 (domestic assault by strangulation); 609.229 (crimes committed for the benefit of a gang); 609.235 (use of drugs to injure or facilitate crime); 609.24 (simple robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 609.255 (false imprisonment); 609.322 (solicitation, inducement, and promotion of prostitution; sex trafficking); 609.342 (criminal sexual conduct in the first degree); 609.343 (criminal sexual conduct in the second degree); 609.344 (criminal sexual conduct in the third degree); 609.345 (criminal sexual conduct in the fourth degree); 609.377 (malicious punishment of a child); 609.378 (neglect or endangerment of a child); 609.486 (commission of crime while wearing or possessing a bullet-resistant vest); 609.52 (involving theft of a firearm and theft involving the theft of a controlled substance, an explosive, or an incendiary device); 609.561 (arson in the first degree); 609.562 (arson in the second degree); 609.582, subdivision 1 or 2 (burglary in the first and second degrees); 609.66, subdivision 1e (drive-by shooting); 609.67 (unlawfully owning, possessing, operating a machine gun or short-barreled shotgun); 609.71 (riot); 609.713 (terroristic threats); 609.749 (stalking); 609.855, subdivision 5 (shooting at a public transit vehicle or facility); and chapter 152 (drugs, controlled substances); and an attempt to commit any of these offenses.

So that means if you were convicted of possessing a  small amount of drugs and then are subsequently caught possessing a BB gun, you would go to prison for 5 years.  That was the mandatory minimum.  It is tough to feel sorry for Felons, but that is a tough break.   This also includes mandatory minimum sentences for offenses with a gun.  If you committed a felony, (i.e. motor vehicle theft) and were possessing a BB gun during the commission of the crime, under Minn. Stat. § 609.11 says there is a 36 mandatory minimum sentence even if you were not a felon before.

So what is happening here is Ralphie is being treated differently than John Dillinger, which I think most can agree is a good thing.