BB GUN IS NOT FIREARM UNDER ARMED ROBBERY STATUTE

In Commonwealth v. Garret   the Supreme Judicial Court (SJC) distinguished between a dangerous weapon and a firearm.  It reversed the defendant’s convictions of armed robbery with a firearm while masked, because the BB gun with which the defendant was armed during the robberies in question did not qualify as a “firearm” under the armed robbery statute. The case arose from a series of store robberies, in each of which the masked defendant pointed a “BB gun that had been spray painted to look like a real gun” at one or more store employees and demanded cash. The Court explained that “the armed robbery statute … contains no explicit definition of the term ‘firearm.’…. That term …, however, is defined in another statute that governs licensing and regulation of firearms…. Under this provision, a ‘firearm’ is, with certain exclusions for weapons that resemble other objects, defined as a ‘pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than sixteen inches or eighteen inches in the case of a shotgun as originally manufactured.’”  “Nothing within the framework of the gun control act supports an interpretation that the Legislature intended to regulate BB guns in the same manner as it regulates firearms. To the contrary, such an interpretation is inconsistent with the gun control act, which does not mention BB guns, and with the Legislature’s long-standing separate regulation of BB guns whose primary focus is “the risk of misuse of BB guns in the hands of minors.”

In light of its determination that a BB gun is not a firearm under the armed robbery statute, the Court ordered the entry of conviction of the lesser included offense of unarmed robbery le viagra tunisie. The Court explained that “the jury could have found that the defendant committed that offense by assault and putting in fear: the BB gun … looked like a real gun, and the victims of each of the three robberies testified they felt afraid during the robberies.”

Also in this decision, the Court ruled that the judge erred in instructing the jury in a manner that “permitted them to find that a replica or toy firearm met the statutory requirement of being armed with a firearm.” The Court explained that such an instruction might have been appropriate if the defendant had been charged with the more broadly defined offense of armed robbery while armed with a dangerous weapon. However, the defendant was not indicted for that offense.

 

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