“Weapons charges” are a broad category of criminal offenses that address the use, possession, and ownership of weapons. Many believe that weapons charges are limited to pulling a gun on someone or threatening someone with a knife. This is not true – weapons charges are also broadly utilized to prohibit the possession and ownership of certain weapons and to increase the punishment for the use of weapons while committing a crime.
Punishment for weapons charges depends on the type of weapon, characteristics of the defendant, how the weapon was used, and more. Punishment varies greatly from mild offenses to serious ones.
What are the Elements of a Weapons Charge?
Although the right to keep and bear arms is constitutionally protected, all states have laws regulating who can possess guns or other weapons, what kinds of weapons they can have, and where and how these weapons may be used. Some common gun charges that can arise from violating these laws include weapons charges that stem from possessing a weapon and those that stem from using a weapon.
Under the first category of possession, a defendant may be charged and convicted for a weapons charge for possessing an illegal weapon, such as an assault weapon, even though no one was hurt by or even saw the weapon. Thus, it does not matter if the defendant did not threaten or harm someone with the weapon; the mere possession of the weapon is enough to be convicted of a weapons charge.
Due to public demand and safety concerns, many states forbid individuals from possessing the following weapons: short-barrel or sawed-off shotguns, guns equipped with large-capacity magazines, guns loaded with incendiary or explosive ammunition, armor-piercing rounds, silencers, stun guns, brass knuckles, and switchblade knives.
Additionally, some individuals with court orders may be forbidden from possessing or accessing any type of weapon. For instance, both federal and state laws provide that convicted felons are not allowed to possess firearms or deadly weapons. As another example, those guilty of domestic abuse lose the right to possess weapons, whether or not a weapon was used in the abuse process.
Others are forbidden from owning or possessing a weapon. Examples include:
- Those who are mentally incapacitated
- Minors (some states allow minors to use shotguns and rifles as part of hunting)
- Those who are forbidden from possession of a weapon due to a court order
- Fugitives fleeing from the law
- Convicted felons
- In some states, such as California, those who are addicted to alcohol or drugs may not possess a weapon
All guns except those used for hunting must be licensed. You can be charged with a misdemeanor if you have an unlicensed firearm in your home or work. If you take the unlicensed firearm outside these locations, you can face felony charges and a sentence of up to 5 years.
Use of a Weapon
Shooting at, or shooting near, dwellings or cars is another form of weapons charge. You can be charged with this crime if you are the shooter or if you aid and abet the shooter. Different penalties will apply depending on whether the house or car was occupied.
Brandishing a weapon is illegal. This offense covers drawing, displaying, or using a firearm or deadly weapon angrily or threateningly.
There is another set of laws covering drive-by shootings. You don’t have to be the shooter to be charged with this crime. As the driver in a drive-by shooting, you can also face charges for knowingly allowing someone to bring a gun into your car or fire that gun from within the vehicle.
Under the category of weapons charges involving the use of the weapon, a person may be charged and found guilty if they use a weapon during the commission of another crime. When a defendant commits a crime such as a robbery, they will receive a certain punishment, including fines, home monitoring, reparation to the victim, and a relatively short time in jail or prison. If the defendant brandished a gun as part of the robbery, it becomes an “aggravated robbery,” a much more serious charge with more severe consequences.
As another example, a sexual assault charge develops into an aggravated sexual assault when a weapon is shown or used. Most states do not require that the defendant use the weapon to injure the victim. As long as the defendant displays the weapon to frighten or intimidate the victim, the defendant may be charged and found guilty of an aggravated offense.
Another example of an aggravated offense is the use of a weapon in a fistfight. If a person hits someone with their bare hands, that carries a charge of battery, but if someone hits someone with a weapon, that carries the more serious offense charge and sentence of aggravated battery.
If a defendant is armed with a gun or uses a gun in the commission of a felony (i.e., it is an aggravated offense), the penalty can be severe. Some states will add up to 10 years to your sentence. California has a sentencing enhancement called “Use a Gun and You’re Done.” It applies to 19 violent or serious felonies, including kidnapping, murder, robbery, and rape.
If the defendant is convicted of one of these felonies, they will face an additional 10 years for having a gun while in the commission of the crime, 20 years if they fire it, and 25 years to life if someone is killed or seriously injured.
What are Defenses to Weapons Charges?
The simplest defense to a weapons charge based on possessing a weapon is to prove that you did not possess the weapon. For instance, if you were in a vehicle where a weapon was discovered and you were charged, a defense to a weapons charge based on possession is to argue that the weapon was not yours and that you were a passenger in the vehicle, not the owner.
Another defense is to prove that the weapon you possessed was not illegal. This defense is sometimes difficult to prove, but some states allow for possessing decorative or collector weapons.
One possible defense for a weapons charge based on the use of the weapon may also include the defense that the weapon was not illegal. Additionally, the defenses to a charge based on weapon use include defenses similar to assault charges, such as self-defense.
If the defenses do not succeed, the defendant is looking to face additional punishment, which may be one to two years in prison. If the defendant was a felon, however, then the weapon charge usually carries a more severe felony range of punishment from two to ten years in prison.
So Do I Need an Attorney for a Weapons Charge?
Because of the range and severity of the punishments for weapons charges, if you are facing a weapons charge, it is in your best interest to consult a well-qualified and licensed criminal defense attorney. An experienced lawyer can help you defend yourself from the charges or reduce the severity of your sentence.
If it is not possible to discredit the evidence against you, a lawyer can still help negotiate a fair and favorable plea deal. Your lawyer will work hard to keep you out of jail whenever possible.