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A firearm is a firearm, a BB gun is not

Two venerable tenets of statutory construction met over a BB gun, and the plain language rule defeated the legislative ratification argument.

In State v. Haywood, the Supreme Court said that a gun that fires projectiles propelled by compressed air is not a firearm within the meaning of the felon-in-possession statute, Minn. Stat. sec. 609.165, subd. 1b. The defendant is serving a 60-month sentence after being convicted in 2014 of violating the statute with a BB gun. The Supreme Court reversed and vacated his conviction.

The plain meaning of the statute defeated the argument that the court said — sort of — in 1977 that a BB gun was a firearm and/or a dangerous weapon and the Legislature didn’t change the statute.

“We do not minimize the concerns of the State and amicus that, regardless of the means of propulsion, a BB gun is capable of producing death or great bodily harm. But that is arguably true of nail guns and other devices that use compressed air, as well. Even so, the question of how to define a ‘firearm’ is best left to the Legislature,” said the unanimous opinion written by Justice Natalie Hudson. Justices Margaret Chutich and Anne McKeig recused.

Compressed air

Haywood’s saga began on New Year’s Day in 2013 when he was driving in downtown St. Paul and was arrested for violating a no-contact order.

Officers searched the car and found the BB gun, a Walther CP99 Compact that fires projectiles of .177 inches in diameter using compressed air. It is an air pistol replica of a semi-automatic pistol by the same name.  Haywood was convicted by a jury that was instructed that a BB gun is a firearm and the Court of Appeals affirmed.

The appellate court relied on the 1977 Supreme Court opinion State v. Seifert, which said that the definition of firearm could include guns using compressed air. The court said that the Legislature re-enacted the statute after Seifert without changing the definition of firearm, indicating its presumptive adoption of the case.

The Supreme Court reviewed the case de novo.

Explosive force

The word “firearm” is not defined in sec. 609.165 and has never been defined by an appellate court. In Seifert, the court construed the word “firearm” in the context of the definition of a “dangerous weapon” under Minn. Stat. sec. 609.02 to encompass a BB gun.

But it didn’t need to do so and thus the language is dictum, Hudson wrote.

In moving away from Seifert, the court moved away from two Court of Appeals opinions that relied on the case in interpreting statutes other than sec. 609.165, State v. Newman (1995) and State v. Fleming (2006).

Instead, it looked at dictionary definitions. Those said that a firearm meant only devices that required gunpowder or another explosive force, the court said.

“Here, Haywood was in possession of an air-powered BB gun: a Walther CP99 Compact pistol, which fires a projectile measuring .177 of an inch in diameter, using compressed air — not gunpowder or any other explosive force — as a propellant. Under the plain and ordinary meaning of the term ‘firearm,’ Haywood’s air-powered BB gun is not a firearm, and thus Haywood’s possession of it did not violate section 609.165,” the court said.

The court went on to say that its holding rested on a plain-language analysis and that it did not consider the defendant’s argument that Seifert does not reflect the Legislature’s definitions of firearms that were incorporated into the criminal code after the opinion.

But its holding in Haywood was supported by statutes enacted after Seifert, the court noted. In Minn. Stat. sec. 609.666 and 609.669, a firearm is defined as a device that uses and explosion or combustion. It also said that in other statutes the Legislature clearly differentiates air guns from firearms. It also said that other provisions refer broadly to a gun, “suggesting that when the Legislature intends to refer broadly to guns that expel projectiles by explosive force, gunpowder, and compressed air, it knows how to do so.”

The decision applies only to the felon-in-possession statute, said defense attorney Tara Reese Duginske. Referring to the Court of Appeals rationale that “firearm” had developed a “reasonably definite meaning” through case law, she responded that “reasonably definite isn’t good enough.”

Laws that carry severe consequences such as 60 months in prison must be clear, said Grant Gibeau, who also represented Haywood.  “The average person doesn’t think of a BB gun as a firearm.”

Police protection

The Minnesota Police and Peace Officers Association Legal Defense Fund filed an amicus curiae brief.  It argued that police face “substantial, life-threatening dangers when confronted with a firearm, including non-powder firearms that look like more legal weapons.”  They thus have an important interest ensuring that individuals who are not permitted to possess firearms are prohibited from possessing non-powder firearms, it continued.

Another kind of win

The defendant in State v. Haywood was represented by Tara Reese Duginske and Grant Gibeau, pro bono attorneys working as special assistant public defenders.

The public defender appellate pro bono program was started by Duginski and John Schmidt, both of Briggs & Morgan, to assist the defenders with a heavy caseload during the most recent recession-era budget crises at the courts.  Now about 100 attorneys participate in the program, which assists the defenders and provide opportunities to the volunteers, Duginske said.

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