About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

5 Crim. L. Prac. 27 (2019-2020)
The BB Gun: A Harmless Toy or Deadly Weapon? Practical Guidance for Objective Fact Finding in a Criminal Case

handle is hein.journals/crilp5 and id is 29 raw text is: Criminal Law Practitioner THE BB GUN: A HARMLESS TOY OR DEADLY WEAPON? PRACTICAL GUIDANCE FOR OBJECTIVE FACT FINDING IN A CRIMINAL CASE Steven N. Gosney* and John Zak** BB guns (and the larger set of projective firing non-powder guns (NPG)) occupy an in- teresting niche in the law. They look like fire- arms and fire a projectile however the power of a BB gun is generally much less than that of a firearm. Most attorneys rarely deal with BB guns in their cases, and when the odd case does arise they are unprepared to tackle the issues involved.' This article provides a brief over- view for the Florida2 criminal law practitioner dealing with a BB gun case. The author further proposes an objective test based on the ener- gy power of the specific NPG involved in any litigation for determining whether that NPG is capable of causing serious bodily harm. The law in Florida. As outlined below, the law in Florida requires the State to establish the deadly nature of a BB gun, and states that this is a fact question for the fact finder.3 In Florida, BB guns arise in various criminal contexts. Often, the presence of a BB gun is used by the prosecu- tor as a deadly weapon enhancement to an ex- isting crime.4 Common examples of these types of crimes with the enhancement attached are robbery with a deadly weapon,5 aggravated as- sault deadly weapon,6 aggravated battery (deadly weapon),' and armed burglary with a dangerous weapon.8 The most commonly used statutes ref- erencing BB guns are found in Florida Statute § 790.9 Section 790.22 prohibits minors under Steven N. Gosney practices criminal law with the law offices of Public Defender James S. Purdy in Daytona Beach, Florida appellate division. He received his Bachelor of Arts degree from Stetson University in 1990 where he studied history. He earned his Juris Doctor degree from Washington and Lee University in 1999 and in 2016, a Master of Science degree from the University of Central Florida studying criminal justice. He is board certified by the Florida Bar in criminal trial law. The opinions expressed in this article are the author's own and do not reflect the view of either the Public Defender's Office of Florida's Seventh Circuit or the State of Florida. John Zak is an undergraduate student at Gettysburg College in Gettysburg, Pennsylvania. Majoring in Political Science and History, he anticipates attending law school following his graduation in the Spring of 2021. His contri- butions to this article are from an internship with the Public Defender's Office the law offices of Public Defender James S. Purdy in Daytona Beach, Florida appellate division. ' See, e.g., State v. Plummer, 228 So. 3d 661, 668 (Fla. Dist. Ct. App. 2017) (holding that counsel was ineffective for failing to present evidence of the difference between a BB gun and an air pistol, which cannot be used as deadly weapon). 2 This article is limited to the State of Florida, but the analysis described herein should be transferable to other state jurisdictions. ' See infra pp. 4 5. 4 See infra notes 5 8. 5 See, e.g., McCray v. State, 358 So. 2d 615, 616 17 (Fla. Dist. Ct. App. 1978). 6 See Duba v. State, 446 So.2d 1167, 1167 68 (Fla. Dist. Ct. App. 1984) (holding that in cases of aggravated assault it is a question of fact for the jury to determine whether a BB gun is a deadly weapon); but see Mitchell v. State, 698 So. 2d 555, 562 (Fla. Dist. Ct. App.), aff'd, 703 So. 2d 1062 (Fla. 1997) (issue of whether the gun was deadly based on threat of its use in manner likely to cause great bodily injury was to be viewed from victims' perspective); see also c.f J.W. v. State, 807 So. 2d 148,149 (Fla. Dist. Ct. App. 2002) (holding that the evidence did not show that the lighter in its design was likely to cause great bodily harm and the defendant did not use it in a manner likely to cause harm that it was not a deadly weapon). ' State v. Jeffers, 490 So. 2d 968 (Fla. Dist. Ct. App. 1986). 8 Santiago v. State, 900 So.2d 710, 711 12 (Fla. Dist. Ct. App. 2005). 9 FLA. STAT. ANN. § 790.22 (West 2019). Washington College of Law 27 Fall 2019

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most