In the U.S., a destructive device is a type of gun or explosive device controlled by the National Firearms Act of 1934, modified by the Omnibus Crime Control and Safe Streets Act of 1968 and Gun Control Act of 1968.
Examples of destructive devices include grenades, grenade launchers, artillery weapons, and guns with a bore over one-half of an inch (.50 inches or 12.7mm), except some rifles and most shotguns (both semi-automatic and manually operated). While existing federal laws permit destructive devices, some states have outlawed them from being transferred to civilians. In states where it is prohibited, only law enforcement officers and military personnel can own them.
All National Firearms Act firearms, including destructive devices, must be recorded with the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
The meaning of a “destructive device” is located in 26 U.S.C. § 5845(f). The depiction reads as follows:
“(1) any explosive, incendiary, or poison gas, (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than 4 ounces, (D) missile having an explosive charge of more than 1/4 ounce, (E) mine or (F) similar device.
(2) Any weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter (.50 inches or 12.7 mm), except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and
(3) Any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.
The term destructive device shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device; surplus ordnance sold, loaned or given by the Secretary of the Army, according to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United States Code; or any other device the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.”
The word “Secretary” initially referred to the Secretary of the Treasury, as the National Firearms Act is part of the Internal Revenue Code of 1986. Since the BATF’s transfer to the Department of Justice in 2002, “Secretary” now refers to the Attorney General.
Muzzle-loading guns are not deemed firearms in the U.S. and do not fall under the restrictions of the NFA. Nevertheless, their shells may still be subject to NFA rule. For example, a person may manufacture, own, and shoot a black powder, muzzle-loading cannon of any bore diameter but may not shoot combustible ammunition from that cannon, as the explosive shell is itself characterized as a destructive device.
Is it Lawful to Own Hand Grenades?
Hand grenades are regulated by the National Firearms Act (“NFA”), a federal regulation first enacted in 1934 and amended by the Crime Control Act of 1968. The 1968 revisions made it illegal to own “destructive devices,” including grenades. (26 U.S.C. § 5801.) There’s no doubt that a live hand grenade created for military action fits within the law’s conditions—non-military individuals may not own them.
What’s Defined as a Hand Grenade?
While it’s evident that military-style grenades are unlawful to own, it’s not so clear when dealing with other objects that could be categorized as a grenade under the regulation’s definition. What about a training apparatus, a smoke bomb, or a firecracker? When confronted with these questions, courts have come to conflicting findings.
How Courts Determine What’s a “Destructive Device”
Courts have embraced three methods to decide whether an object or collection of objects forms a destructive device, including a hand grenade. Whether a non-military “grenade” is a grenade for definitions of the NFA will depend on the court’s choice.
Does the Defendant’s Intent Matter?
Under one policy, some courts demand that prosecutors establish that the defendant planned to use the device for criminal objectives. Under this method, someone who made the device, or constructed the components, would evade conviction unless the government established that he planned to use the device for shady ends.
When is the Defendant’s Intent Irrelevant?
Most courts have not embraced the approach described above—the “subjective approach.” Rather, they concentrate on the language “may be readily assembled.” That is, if the objects could be put together to assemble a destructive device, the crime is done, regardless of the defendant’s claims that he had legal uses in mind.
The objective standard, while ostensibly severe, can have some unexpected outcomes, letting defendants off the hook even when they planned to make a weapon. The objective approach won’t count unattached commercial blasting dynamite as a component part because it is expressly excluded from the definition of a destructive device. Unless the defendant has utilized the dynamite and assembled the weapon, there’s no destructive device and no conviction.
What Are the Punishments for Destructive Device Offenses?
Custody of a destructive device is usually charged as either a misdemeanor or felony. Misdemeanor charges can lead to criminal consequences such as fines (up to about $1,000) and jail time of up to one year. Felony charges can result in more serious penalties, including greater fines and longer than one-year sentences.
Whether or not the person is charged with a felony or a misdemeanor may depend on several elements, including:
- The nature of the device possessed
- The person’s criminal record, and
- Surrounding circumstances of the crime (such as where the device was being stored, etc.).
More extreme punishments may be levied if the individual sets the device in a public place. Even more significant penalties will result if another person is injured.
Are There Any Defenses to Destructive Device Offenses?
As with any criminal charge, there may be defenses available to a person who has been charged with possession of a destructive device. These can include:
- The defendant had a valid permit for possession of the device
- The item actually didn’t qualify as a “destructive device” under state law
- Evidence regarding the crime was obtained in an illegal manner (for instance, violations of search warrant requirements)
Again, state laws may differ when it comes to the meaning of a destructive device, as well as conditions for getting a permit. You may need to confer with a lawyer or legal professional if you need more guidance regarding the laws in your state.
hould I Hire a Lawyer for Help with Destructive Device Infractions?
Destructive devices can be destructive and are subject to very strict regulation. You may need to hire a criminal lawyer in your area if you face charges involving destructive devices. Your attorney can provide you with legal representation during the trial and help perform legal research on your defense case. Also, if you have any specific questions or inquiries, your lawyer can address these as well. Use LegalMatch to find the right criminal defense lawyer for your needs today.