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Weapons Charges

Weapons Charges

Weapons charges is a broad category of criminal offenses that includes offenses that address the use of weapons. Many people believe that this category means actually pulling a gun on someone or threatening someone with a knife, however weapons charges are broadly utilized to prohibit the possession of certain weapons by any person and to increase the punishment for the use or possession during other offenses.

Thus, a person may be guilty if they are in possession of a weapon or use a weapon. Because of the broadness of the category and perceived differences in the deadliness of certain weapons, the punishment for this crime varies. Depending on the type of weapon, and factors such as whether the person is a repeat offender or not, the punishment may be as severe as jail time.

The Second Amendment to the United States Constitution unequivocally states that Americans are afforded the right to bear arms. While the Supreme Court has held that individuals' have the right to possess a firearm for lawful purposes such as self-defense, there are significant restrictions on who may possess firearms and where and how they may be used.

Charges Involving Firearms

Firearms-related charges can stem from the unlawful use of a gun or from the use and possession of a gun by a prohibited person. The former charge can include any of the following criminal infractions:

  • Carrying a Concealed Weapon: Civilians are required to obtain a permit to carry a concealed weapon. Persons caught transporting a concealed firearm or other deadly weapon likely face felony charges unless certain defenses apply, such as inadvertent expired license or failure to renew;
  • Possessing a Deadly Weapon During the Commission of a Felony: If you were arrested for a separate felony offense and were found to be carrying a firearm at the time, you could face charges for the separate offense of possession of a weapon during the commission of a felony, even if the weapon was not used. This charge is often classified by degrees and may carry more serious penalties depending upon the nature of the underlying felony.
  • Possession of a Firearm in Prohibited Areas: There are a number of laws prohibiting the possession of a firearm near a school, playground or other area where children are present. It is generally not a defense that you did not know you were near a prohibited area, however certain other affirmative defenses to this charge are available and your defense attorney can devise an appropriate defense strategy in your case.

Possession of a Firearm by Prohibited Persons

Your defense attorney can also help you if you were found in possession of a firearm and are classified as a person prohibited from owning or possessing deadly weapons. A person may be prohibited from possessing a firearm either as a condition of their probation or due to the mandatory sentencing guidelines for certain crimes. For instance, many domestic violence statutes prohibit defendants from owning and possessing firearms. Other persons prohibited may include any of the following:

  • Those convicted of crimes of violence and physical injury;
  • Anyone having been committed to a mental health facility;
  • Individuals convicted of certain drug offenses;
  • Those with a juvenile criminal juvenile record for offenses that, if tried as an adult, would have resulted in a felony conviction;
  • Fugitives from justice.

If you are facing a recent weapons charge, including those involving the unlawful use or possession of a firearm, a criminal defense attorney can help you not only reduce or defeat your charges but safeguard your right to protect yourself and your home.

What are the Elements of a Weapons Charge?

Although the right to keep and bear arms is a constitutionally protected liberty, all states have their own sets of laws to limit a person's ability to possess certain types of weapons in certain situations. A weapons charge is a set of criminal charges that generally arise in one of two categories: possession and use.

Under the first category of possession, a defendant may be charged and convicted with a weapons charge for possessing an illegal weapon, such as an assault weapon, even though no one was hurt by or saw the weapon. Thus, it does not matter if the person did not threaten or harm someone with the weapon, the mere possession of the weapon is enough to find guilt.

Due to public policy and safety concerns, many states forbid individuals from possessing the following weapons: short barrel or sawed off shotguns, guns equipped with large-capacity magazines, guns loaded with incendiary or explosive ammunition, some types of pepper spray, brass knuckles, and switchblade knives, to name a few.

Additionally, some individuals with court orders may be forbidden to possessing or accessing any types of weapons. For instance, convicted felons are often not allowed to possess firearms under federal or state law.

Also, those that are mentally incapacitated, those who are minors, those who are forbidden to possess a weapon due to a court order, or fugitives fleeing from the law are not able to acquire or possess a firearm. Possession of a weapon charges tend to receive a less severe punishment than weapons charges that involve actual use of the weapon.

Under the second category of the use of the weapon, a person may be charged and found guilty if they use a weapon during the commission of a crime, such as such as robbery. These charges are often referred to as aggravated offenses, because as a result of the use of the weapon, the defendant may be charged and found guilty of a more serious version of a crime than they intended to commit.

For example, a sexual assault charge develops into an aggravated sexual assault when a weapon is shown or used. Most states do not require that the defendant use the weapon to injure the victim. As long as the defendant displays the weapon to frighten or intimidate the victim, then the defendant may be charged and found guilty of an aggravated offense.

Another example of an aggravated offense, is the use of a weapon in a fist fight. If a person hits someone with their bare hands, that carries a charge of battery, but if a person hits someone with a weapon, then that carries the more serious offense charge and sentence of aggravated battery.

What are Defenses to Weapons Charges?

The simplest defense to a weapons charge based on the possession of a weapon is to prove that you did not possess the weapon. For instance, if you were in a vehicle where a weapon was discovered and you were charged, a defense to a weapons charge based on possession is to argue that the weapon was in fact not yours and that you were a passenger in the vehicle, not the owner. Another defense is to prove that the weapon you possessed was not illegal. This defense is sometimes difficult to prove, but some states allow for the possession of decorative or collector weapons.

The defense for a weapons charge based on the use of the weapon may also include the defense that the weapon was not illegal. Additionally, the defenses to a charge based on the use of a weapon include defenses similar to assault charges such as self-defense.

If the defenses do not succeed, then the defendant is looking to face additional punishment, which may be one to two years in prison. If the defendant was a felon however, then the weapon charge usually carries a more severe felony range of punishment from two to ten years in prison.

What Is a Deadly Weapon?

In a criminal law setting, the term deadly weapon generally refers to a firearm. The term deadly weapon may also refer to any other object that is used or intended to be used in such a way that it could cause serious injury or death to another human being. 

Legally, the term deadly weapon covers objects that most ordinary people would not think of as deadly weapons. Defendants have been found guilty of assault with a deadly weapon for having utilized such items as baseball bats, knives, and guns. Some other examples include intentionally striking another driver or pedestrian with a motor vehicle, or running after a person with an ax.

The legal definition of what constitutes a deadly weapon is intentionally broad. This was intentional, in order to avoid as many loopholes as possible. Some examples of items that may be considered a deadly weapon have included:

  • Broken bottles;
  • Dogs;
  • Power tools;
  • Gardening tools;
  • Blunt objects; and
  • Boats.

In some states, a person's hands, feet, or teeth can be considered to be deadly weapons. Although the human body itself is not a deadly weapon, legally speaking, it can certainly be used in such a way as to cause another person great bodily injury or death.

Other states, such as California, specifically exclude the human body from the definition of a deadly weapon. However, California law also states that use of “any means of force likely to produce great bodily injury,” would warrant a charge for assault with a deadly weapon. If someone attacks a person by choking, kicking, or punching, they could face a charge of assault with a deadly weapon. Again, this will vary from state to state.

Something else to consider is that the weapons that are considered to be deadly weapons for the purposes of an assault with a deadly weapon charge might also constitute illegal weapons. Items such as billy clubs, switchblades, and cane swords are other uncommon items that can be used to cause serious injury or death

Whether it is illegal to possess such weapons depends on the law in the state in which a person lives. An example of this would be how a baseball bat is not technically an illegal weapon, but it could be considered a deadly weapon if used in the course of the crime of assault. Alternatively, a switchblade is a deadly weapon; and, possession of a switchblade is illegal in some, but not all, states. The law varies from state to state.

What Is Assault With a Deadly Weapon? What Are Some Examples of Assault With a Deadly Weapon?

An assault occurs when someone physically harms or wants to harm another person. Assault can also occur when one person makes the other person believe or fear that they are going to be hurt. An injury does not necessarily have to occur for an incident to be considered assault; simply the existence of fear of possible injury is enough to be considered an assault.

Assault with a deadly weapon is similar to assault, in that actual bodily harm does not need to happen. Assault with a deadly weapon has the added element of the use of, or the intention to use, a deadly weapon. Some courts rule assault with a deadly weapon as an aggravated assault. Simply put, to aggravate a crime means to make the crime more serious. Assault with a deadly weapon is considered to be a felony crime in most states, although this could also vary from state to state.

To reiterate, it is important to remember that the weapon does not have to actually cause physical harm to another person in order for the crime to be considered assault with a deadly weapon. The crime can occur and be prosecuted if the victim feels threatened and/or afraid that they might be hurt, or even possibly killed.

An example of this would be if someone points a gun at another person and threatens to pull the trigger, but does not do so. The person wielding the gun has potentially committed the crime of assault with a deadly weapon. This would be due to the fact that the victim most likely felt seriously threatened, and feared for their life.

Other examples of assault with a deadly weapon may include, but not be limited to:

  • Someone swinging a baseball bat and threatens to hit another person with the bat;
  • A person repeatedly uses their fists to punch another person, knocking them unconscious;
  • Someone threatens to stab another person with a chunk of broken glass;
  • An individual attacks another person and hits them repeatedly on the head with their purse; and/or
  • A driver purposely runs someone down with their car.

The courts must review every case on its own merits, which means on a case by case basis. This is because the court must determine how exactly the potentially deadly weapon was used, as well as how it was perceived by the victim. These factors will obviously differ from case to case, and can often be difficult to determine. 

Are There Any Defenses to Assault With a Deadly Weapon?

When ruling on cases involving assault with a deadly weapon, the courts will consider state laws as well as the evidence presented to them regarding the case. The courts will also consider whether there is a valid defense for the use of the deadly weapon. Alternatively, the court may need to determine whether a deadly weapon was actually used at all during the assault.

Some of the possible defenses to assault with a deadly weapon may include:

  • Self-defense, or the defense of another person;
  • Mistake or misinterpretation on the victim's part;
  • There was no object used, only words were exchanged between the parties; and 
  • The defendant did not actually possess the needed intent to harm the victim.

What Are the Consequences of an Assault With a Deadly Weapon Charge? How Much Jail Time Is It?

The consequences of an assault with a deadly weapon charge will vary from state to state, as well as whether the crime is considered to be a felony. Further, if no valid defenses can be applied to the charge of assault with a deadly weapon, serious consequences may result. Courts across the United States consider the crime of assault with a deadly weapon to be particularly serious.

As previously mentioned, some courts consider assault with a deadly weapon to be an aggravated assault. Additionally, assault with a deadly weapon is considered to be a felony crime in most states because it is a crime that involves violence. Generally speaking, jail time for assault with a deadly weapon consists of one year or more to be spent in a federal prison facility. Other legal punishments for felony crimes include criminal fines that could reach $10,000.

In some states, assault with a deadly weapon is a wobbler. Meaning, it may be charged as a misdemeanor or felony, depending on the facts of each specific case. Misdemeanor assault with a deadly weapon can be punished by up to a year in jail, whereas the felony crime can be punished by up to four years in prison.

Is Robbery with a Fake Weapon Considered a Crime as Well?

Yes, robbery with a fake weapon can be considered a crime. If it would be reasonable to believe that the fake weapon was real, then yes, it can be considered a crime as well.

In many jurisdictions, there is not a need for the actual use of force in order for the theft to be considered a robbery. If a victim believes that they would be injured or harmed if they did not cooperate, that is typically enough.

Because of this, the majority of courts would consider a defendant using a fake weapon to be an armed robbery, assuming that the victim reasonably believed that the weapon was not fake and was real. Armed robbery can also be defined as a theft which is accomplished by the use of a weapon.

Because robbery refers to a theft which is achieved by the threat of force or use of force, an armed robbery can then be described as a defendant using a weapon to threaten to force or to force a victim into handing over their property or money. In addition, if a toy gun is used during the robbery to strike the victim, then the toy gun becomes a weapon by legal definition. Therefore, robbery with a fake weapon is typically treated the same as a robbery involving a real weapon.

What are Some of the Penalties for Robbery with a Fake Weapon?

It is important to note that armed robbery is typically considered to be a felony charge. The value of the property or money that was stolen does not change that charge.

Therefore, committing a robbery with a fake weapon will typically carry similar severe criminal consequences as does a robbery charge using a real weapon. Some examples of the consequences a defendant may face if they are convicted of robbery include:

  • A prison sentence of up to 15 years;
  • Criminal fines up to $20,000;
  • Probation; or
  • A combination of these punishments.

If a victim is actually harmed during the course of a robbery, a defendant can expect a prison sentence which lasts between 5 and 10 years. In addition, a juvenile offender may be tried as an adult for armed robbery charges. In order to have an understanding of actual penalties, it is important to consider what degree of robbery is being assigned, based on the severity of the crime. This may include:

  • Third degree robbery;
  • Second degree robbery; and
  • First degree robbery.

Third degree robbery is defined as using force or an offensive weapon to take a victim's property. In most states, this is a felony. In some cases, the sentencing for this crime is enhanced based upon factors include:

  • The defendant's history;
  • The defendant's criminal record; and
  • Whether or not an assault with a deadly weapon occurred during the robbery.

In a second degree robbery, an accomplice is present during the commission of the crime. A second degree robbery may also occur if a defendant causes an individual who is not involved in the robbery to be injured or uses a knife, gun, or other deadly weapon in the commission of the robbery.

First degree robbery occurs when the robbery charge is elevated because the victim, or another individual who was not involved in the crime, was seriously injured. This type of robbery also occurs when a defendant is armed with a deadly weapon and threatens to use it against the victim.

Some states may differ regarding the degrees of felony classifications rather than the degrees of theft crimes. For example, Texas classifies robbery as a second degree felony.

For a second degree felony in Texas, the penalty includes 2 to 20 years in state prison and the possibility of criminal fines of up to $10,000. If the crime is elevated to aggravated robbery, a more serious penalty of 5 to 95 years in prison and the possibility of criminal fines up to $10,000 may be imposed.

A defendant may also face the potential loss of the right to own firearms in the future. There are various factors which influence a penalty, including:

  • The laws of the state;
  • The court's analysis of the dangers involved while the robbery was being committed; and
  • Other relevant factors.

In addition, some jurisdictions consider armed robbery to be a violent crime, even if there were no actual physical injuries. There may be criminal defenses that apply to the charge of armed robbery with a fake weapon. These will be similar to those available in a robbery charge involving a real weapon, since they are treated similarly, as noted above.

How Can an Attorney Help Me with a Weapons Charge?

If you have any questions or concerns regarding the law of weapons possession in your area, or are facing criminal charges for possession of a weapon, you should contact a criminal defense attorney for assistance. 

An experienced and local criminal defense attorney will ensure you understand the charges you are facing, as well as your rights and any potential penalties you may be facing. The attorney will also work to construct a solid legal defense, and can represent you in court as needed.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.