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BB Gun is Not a Firearm

When a person hears that someone is charged with a crime, the first thing they probably think to themselves is “well, did they do it? Are they guilty?” Do they ever think “is this even a crime?” Despite the fact there may be no due process right more fundamental than the one that laws must give fair notice of what they prohibit.

Last week, in the somewhat surprising but logical State of Minnesota v. David Lee Haywood, the Minnesota Supreme Court reminded all criminal defense lawyers that sometimes the most powerful tool in their lawyer tool belt is simply the statutory language of the charge itself. “Well, everyone knows what the law means,” or “of course the law also applies to that activity, it’s common sense,” just doesn’t cut it. Words and definitions matter. It is up to defense attorneys to force zealous prosecutors to articulate why something is criminalized to begin with. Mr. Haywood’s attorney knew this, and the strategy paid off with the Minnesota Supreme Court, after being denied at both the district court and the court of appeals.

David Lee Haywood was pulled over in 2013 by police and arrested after a BB gun[1] was discovered inside his glove department. Because Mr. Haywood had a previous felony conviction from 2005, he was quickly charged with one count of Possession of a Firearm by an Ineligible Person under Minn. Stat. § 609.165, subd. 1b. For decades, felons in Minnesota caught with a BB gun you can buy in any Wal-Mart have been prosecuted and sentenced to 5 years in prison.[2] To the state, this was an open and shut matter.

Not so fast. The problem with Minn. Stat. § 609.165 is that it does not define what a “firearm” is. And in fact, no Minnesota appellate court had ever defined the term in reference to the felon statute before. The state was relying on a 40-year old case called State v. Seifert, in which a BB gun was held by the Minnesota Supreme Court to be a firearm because it was a “dangerous weapon” for the purposes of an entirely different statute. What would happen if a defense attorney pushed back against this?

At first, not much. The district court and the court of appeals[3] rejected Mr. Haywood’s argument that the statute did not define what a firearm is and therefore a BB gun should not qualify. In support of their argument, they pointed out that the legislature had had nearly 40 years since Seifert was decided to clarify that a BB gun wasn’t a firearm, and that because the legislature had done nothing, they had adopted the Seifert definition.

Mr. Haywood asked the Minnesota Supreme Court to reconsider, and they did. Relying on the plain language definition of “firearm” in half a dozen different dictionaries, they pointed out that in order to qualify in most people’s minds as a “firearm” the object has to use gunpowder or some other explosive chemical force. A BB gun is air powdered and does not fire bullets or use explosive force. It might be a “dangerous weapon” but it is certainly not a firearm according to Webster’s. The legislature is, of course, always free to change this, but they haven’t. Until they do, people like Mr. Haywood shouldn’t be going to prison because the law didn’t give them notice they were committing a crime in the first place.

The lesson here is that statutory interpretation always matters. If a law is poorly drafted, as this one has been for 40 years, it is up to the defense attorney to press the issue. Otherwise, clients are left to the mercy of the state criminalizing far more behavior than the legislature has given them authority to do.

Matthew B. Trevor graduated summa cum laude from Mitchell Hamline School of Law in St. Paul. There, he was an Assistant Editor on Law Review and received CALI Awards for both Criminal and Constitutional Law. He was also a Mitchell Hamline Fellow; clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. St. Paul Criminal Lawyers; Criminal Defense Attorneys Minnesota; and St. Paul MN Criminal Defense Attorney.

[1] Specifically, a Walther CP99 compact pistol.

[2] “For years we have prosecuted those people for firearms,” said Rice County Prosecutor John Fossum, after hearing about the Court’s decision. http://www.southernminn.com/faribault_daily_news/news/article_21690710-bed5-56a8-823e-f53323a8ec89.html

[3] http://law.justia.com/cases/minnesota/court-of-appeals/2015/a14-1792.html

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