Can a Felon Possess a BB Gun Under Minnesota Statute § 609.165?

On October 19, 2016, the Minnesota Supreme Court addressed the question: “whether an air-powered BB gun is a ‘firearm’ under the felon-in-possession statute, Minn. Stat. § 609.165 (2014).” The statute makes it a crime for a person with a prior felony conviction to possess a firearm, but it does not define the term “firearm.” The Court ultimately determined that a BB gun is not a firearm in regards to the statute. The case was State v. Haywood.

State v. Haywood

In the case, police searched Haywood’s vehicle and found a CO2-powered replica Walther P99 Compact air pistol. The BB gun fired .177 of an inch diameter pellets. At the time of the arrest Haywood had a prior felony conviction preventing him from possessing a firearm. He moved to dismiss the charge arguing that the BB gun was not a firearm within the meaning of the statute. Interestingly, the Court determined that neither Minnesota Statute Chapter 609, nor any Minnesota appellate court has ever defined the term “firearm” in relation to Minn. Stat. § 609.165. Under Chapter 609 only the term “dangerous weapon” is defined under Minn. Stat. 609.02 stating:

any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm.

State’s Argument

The State argued that the Court should follow State v. Seifert (decided in 1977) and hold that a BB gun is a firearm. Seifert was a Minnesota Supreme Court case holding that the same type of BB gun, as here, (.177—caliber CO2 BB pistol) was a firearm under the definition of a dangerous weapon, Minn. Stat. § 609.02. That decision has stood for nearly the last 40 years without the legislature taking any action to specifically exclude a BB gun from the definition of a “firearm” in the criminal code.

Defendant’s Argument

Haywood cited several dictionary definitions, stating that a BB gun cannot be a firearm under its plain and ordinary meaning. He argued that in order to be a firearm the object must use gunpowder or some similar chemical explosive force. A BB gun does not fire bullets or use explosive force and therefore cannot be a firearm under the felon-in-possession statute.

Minnesota Supreme Court Holding

The court sided with Haywood holding that a BB gun was not a firearm under Minnesota’s Criminal Code (Chapter 609). Four dictionary definitions of “firearm” analyzed by the court all require expulsion from gunpowder or explosive force. In addition, since Seifert, Chapter 609 has twice defined a “firearm” as expulsion by force of an explosion or combustion. (Minn. Stat. §§ 609.666; 609.669). Haywood’s BB gun used compressed air – not propelled by gunpowder or explosive force. Therefore, his BB gun did not fit under the plain meaning of “firearm” and Haywood did not violate the felon-in-possession statute.

An Important Note: Ineligible Person In Possession of a Firearm Statute

There is a second type of “felon-in-possession” statute under Minn. Stat. § 624.713. Under this statute it is a gross misdemeanor for an ineligible person to possess a firearm, including convicted felons. Further, if you have been convicted of a crime of violence under Minn. Stat. § 624.712, subd. 5 then it is a felony offense to be in possession of a firearm. The most important note here is that this section does define the terms “firearm” and “pistol.” Under this broad definition, a pistol does not require gun powder or explosive force, rather the propelling force may be a spring, elastic band, CO2 or other gas, so long as the shot (bullet) size is greater than .18 of an inch in diameter. Minn. Stat. § 624. 712, subd. 2.

Get the Legal Representation You Need

Felon in possession of a firearm is a very serious offense. You may be subject to a 60-month (5-year) mandatory minimum prison sentence. The attorneys at Sieben & Cotter understand Minnesota’s complex gun laws. We will work hard to achieve a favorable outcome in your case.

If you have been charged with weapon possession, call Sieben & Cotter Law Office at 651-455-1555 to schedule a comprehensive consultation at no charge to you. We will listen to your story carefully and help you determine the appropriate course of action.