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Are BB Guns "Deadly Weapons" under Florida Law?

One issue with which criminal defense attorneys must often grapple is what constitutes a "weapon" under Florida's criminal code. A recent decision out of the Second District Court of Appeal, C.W. v. State, has added some additional clarification as to whether, and under what circumstances, BB guns may be considered weapons. C.W. was a juvenile who brought a spring loaded B.B. gun with him in his bookbag to school. When a security officer discovered the BB gun, C.W. was arrested, charged, and eventually convicted of possession of a weapon on school property. 

C.W.'s defense attorney appealed the trial court's finding that the BB gun qualified as a weapon. Problematically, the Florida Statutes do not provide a clear definition what a "weapon" or "deadly weapon" is. ยง 790.001(13) contains a list of examples of weapons; such as knives, metal knuckles, and tear gas guns. When a weapon at issue does not appear on that list, courts look to whether "the object was used in such a manner that it could have caused great bodily harm or death."

The Second District ultimately concluded that the state had failed to prove that C.W.'s BB gun constituted a deadly weapon. It noted that the only testimony the state offered about the gun was the officer who stated that it was heavy, spring loaded, looked like a real gun and could be used to fire steel or copper BB pellets that could pierce the skin or result in the loss of someone's eye. However, there was no indication that C.W. ever used the gun in a threatening manner or brought any BB pellets with him to school.

The court was quick to point out the numerous prior cases that have reached conflicting results on the issue of whether BB guns constitute a weapon. In some instances, BB guns have been found to be weapons where the defendants threaten to use them like a real gun during a robbery. Often in these cases, the line between conviction and reversal depends on the type of BB gun used, the way it is used, and the amount of evidence the state offers at trial to show that the gun could be used to cause great bodily harm.

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