Assault with a Firearm
UPDATED: June 19, 2018
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Assault with a firearm is considered one of the highest level of assault charges because the use of a firearm increases the threat or risk of injury to another person. As the name implies, assault with a firearm is an assault by threat or injury that involves the use of a gun. Read on to learn more about the charge, defenses, and punishments for an assault with a firearm charge.
Assault with a Firearm Charges
Assault with a firearm is a specific form of assault. It is sometimes considered a sub-category of higher assaults called aggravated assault with a deadly weapon or aggravated assault with a dangerous instrument. Assault with a firearm is considered an aggravated charge because of the use of a firearm. Use of the firearm can include the actual firing of a gun, but can also include the mere display of a gun.
For example, if a defendant points a gun at a cashier during a store robbery, then he could be charged with assault with a firearm even though he never fired the gun and the clerk was never injured. A defendant is punished with a higher charge because the fear factor for the clerk or the risk of injury was increased by the use of a gun. Assault with a firearm charges are frequently charged in combination with other offenses like burglary, robbery, and sexual assault. Many states permit a defendant to be charged in multiple ways for conduct arising out of a single criminal act.
Defenses to Assault with a Firearm
Even though several defenses may be available for a defendant depending on the circumstances surrounding the offense, assault with a firearm has three general defensive strategies. The first is self-defense or the castle doctrine. More states have approved the use of firearms in defense of person, home, or property. The duty to retreat or the extent of this use, however, will depend on how this defense is worded in each state’s penal code.
The second defensive strategy is to challenge whether a firearm was even displayed. Sometimes a defendant may not contest that he had a firearm with or near him, but instead contest that it was used during an assault. For example, if a victim goes to a neighbor’s house and the neighbor threatens to hit him if he does not leave, the charge is not an assault by firearm just because the neighbor happens to have a firearm in his home. There must be a connection between the nature of the threat and the use of the firearm.
The third defensive strategy is to prove that the instrument used was not a firearm. A defendant may agree that he committed an assault, but only displayed a BB gun or air pistol and not a firearm. If a defendant can prove that the instrument was not a firearm or deadly instrument, then the result is a conviction for a much lower offense, if any.
Because of the aggravating nature of an assault with a firearm charge, the punishment ranges tend to be higher, ranging from two to thirty years. Other factors, like the age of the victim or the extent of the injury, can result in an even higher level of punishment. If a defendant can negate that the instrument was a firearm, the punishment range is significantly reduced. A defendant charged with assault with a firearm, but only convicted of regular assault, can obtain a misdemeanor range of punishment which is usually capped at about a year or two in jail.
An effective defensive strategy can have a significant impact on a defendant’s punishment range. Understanding a state’s basic definitions as they apply to a defendant’s situation can also provide a wider range of plea bargaining options. A defendant charged with assault with a firearm should consult with a criminal defense attorney to learn about any other defensive theories available in his jurisdiction.