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Gun Need Not Work For Possession To Be Illegal

A felon can be convicted of illegal possession of a firearm even if the firearm does not work, the en banc Virginia Court of Appeals has held.

It doesn’t matter whether “the gun’s current condition is ‘operable’…or whether a can of WD-40 or the local gunsmith could” make the gun fully functional, the court said. If the commonwealth proves that the defendant previously was convicted of a felony, and that he possessed an object made to “shoot bullets, not BBs or tap water,” the felon faces an illegal gun conviction.

In November, a divided panel of the court affirmed the conviction of a man whose cousin testified that a .22 caliber rifle found in the defendant’s home had “stopped shooting,” and “wouldn’t fire.”

Drawing on a 1993 case defining “firearm,” the defendant had argued that the gun had to be in working order to prompt a penalty for possession.

But the en banc court took a sharp turn from a line of cases that stressed whether a weapon was “operable,” effectively eliminating the requirement that the commonwealth prove that the gun in question actually worked.

The case is Armstrong v. Commonwealth (VLW 001-7-433). The majority opinion was written by Judge G. Steven Agee.

That dog won’t hunt

During a search of the defendant’s Highland County home, a sheriff observed a semi-automatic .22 caliber rifle and a BB gun inside a gun cabinet, according to Agee’s opinion. A prosecutor charged the defendant with possession of a firearm by a convicted felon, a violation of Virginia Code Sect. 18.2-308.2.

No one test-fired the guns, Agee wrote, and at trial, the defendant’s cousin testified that the rifle belonged to him, and it had “just stopped shooting” while the cousin was out hunting. The cousin, who was serving in the military at the time, told the court that, “You could pull the trigger but the gun won’t go off” because the firing pin was not “hitting the casing…”

Because the rifle was “not presently operable,” it was not a “firearm” under the statute, the defendant argued. But the trial judge convicted him and the panel affirmed in an unpublished opinion (VLW 000-7-733).

The defendant conceded on appeal that the rifle was designed to “expel a projectile by discharge or explosion of gunpowder,” but maintained that because the gun would not fire, he could not be convicted.

At the time of the offense, in 1998, the statute provided that it was unlawful for a previously convicted felon to “knowingly and intentionally possess or transport any firearm,” without defining firearm.

In 1993, the appellate court used Jones v. Commonwealth, 16 Va. App. 354 (1993), to define a “firearm” under the statute as a “device that has the actual capacity to do serious harm because of its ability to expel a projectile by the power of an explosion…” In Jones, the court held that a BB gun did not meet the traditional definition of a firearm under the felon-in-possession statute.

According to Agee, subsequent panel decisions “enlarged the holding in Jones” with the court ultimately holding in Gregory v. Commonwealth, 28 Va. App. 393 (1998), and Williams v. Common-wealth, 33 Va. App. 796 (2000), that the commonwealth had to prove that the weapon in question was designed or intended to expel projectiles by gunpowder, and that it is capable of doing so or could readily be made operational.

Here’s where the court called a halt: The “judicially created element of proof, that the felon’s weapon is ‘presently operational,’ … is contrary to the plain language of the statute and has caused unnecessary confusion,” Agee wrote.

Agee contrasted the felon-in-possession statute with Code Sect. 18.2-53.1 and other statutes prohibiting the use of a firearm while committing a felony, saying that the latter statutes involve a victim’s perception of fear or harm, which could arise from a fake gun.

But the crime under Code Sect. 18.2-308.2 “is complete by the felon’s possession of the weapon …. [B]ecause there is no victim perception element to Code Sect. 18.2-308.1, as there is under Code Sect. 18.2-53.1, there is no public policy or legislative intent to find a felon who possesses a BB gun, a squirt gun or a plastic toy gun to be in possession of a firearm …

“The practical result of the ‘operability element’ has left a confusing zigzag trail for the trial courts to decipher,” and “created a body of law that is contrary to the plain meaning of the statute, “Agee concluded.

Moving from a “zigzag” to a U-turn, the en banc court overruled Gregory and Williams “to the extent such cases are read to require the Commonwealth to prove as an element of violating Code Sect. 18.2-308.2 that the convicted felon’s firearm was presently operational, was capable of being fired, could be readily converted to firing or could readily be made operational. We hold Jones established no such requirement. To the extent Jones is read inconsistently with this opinion, Jones is also overruled.”

The felon-in-possession statute “only requires the Commonwealth to prove, as elements of the crime, that the accused is a convicted felon and that he or she possessed an object which was made with the purpose to expel a projectile by gunpowder or other explosion,” a standard met by the prosecutor in the Highland County case.

Standing alone in dissent, Judge James W. Benton said the majority’s “radical lowering of the threshold for conviction changes the nature of the conduct proscribed and punishes conduct that was legal before publication of the current opinion.”

The defendant was represented by Warm Springs lawyer Ronald W. Vaught, who could not be reached for comment. Assistant Attorney General Michael T. Judge, who represented the commonwealth, declined comment.

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