UPDATED: March 27, 2012
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Weapons charges include offenses that address the possession or use of weapons. Even though many people envision a defendant actually pulling a gun on a store clerk, weapons charges are broadly used and applied to prohibit the possession of certain weapons by any person or certain persons and to increase the range of punishment for the use of weapons during other offenses.
What is a Weapons Charge?
The term weapons charge globally refers to a broad set of charges that involve weapons. Most state statutes are divided into two categories of weapon charges: possession and use. The first category focuses on the mere possession of a certain weapons. A defendant can be charged and convicted of possessing an illegal weapon, even though no one was hurt, threatened, or even saw the weapon. Because of public policy concerns, many states have banned all persons from possessing certain categories of weapons. Some of these weapons include switch blade knives, brass knuckles, short barrel shotguns, and some types of pepper spray. Additionally, all states have rules that restrict access to weapons by certain persons.
For example, convicted felons are not allowed to possess firearms under state or federal statutes. Some states do not allow convicted felons to possess body armor, a sub-category of weapons. The main focus of these weapon charges is possession. If the state can prove that the instrument was an illegal weapon and that a defendant exercised care, custody, or control of the weapon, then the defendant can be convicted of the weapon charge. Possession of illegal weapon charges tend to be lower than weapons charges that involve the actual use of a weapon.
The second category of weapon charges focuses on the use of weapon during the commission of some other offense. These are sometimes referred to as aggravated offenses. For example, a sexual assault becomes an aggravated sexual assault when a weapon is used or displayed during the commission of the offense. Most states do not require an actual injury to aggravate a charge to a weapons charge. Often, the mere display of a weapon to intimidate or frighten a victim into compliance is enough.
For example, if a defendant holds a gun to a woman’s head to encourage her to perform a sexual act, holding the gun is enough to charge the defendant with the weapons charge of aggravated sexual assault. When the term aggravated is inserted before the name of a regular offense, the addition usually refers to the use of a weapon or some other serious circumstance.
Defenses for Weapons Possession
The most basic defense to a weapon charge based on possession is to prove that the defendant was not in possession of the weapon. As with a drug case, a defendant can point to the lack of links to prove that he was not in possession of the weapon. For example, if brass knuckles were found in a glove box, a defendant can highlight that he is not the owner of the vehicle or that he was only a passenger.
The second defense is to show that the weapon was not an illegal weapon. This usually is an issue when the charge is possession of an illegal knife because many states make exceptions for decorative or collector knives. A defendant charged and convicted of possessing a weapon will usually face a misdemeanor level of punishment which can include probation and up to a year or two in jail. If a person is charged with possessing a weapon because of their status as a felon, then the weapon charge usually carries a felony range of punishment from two to ten years in prison.
Defenses for Use or Display of a Weapon
The defenses to the use of a weapon charge are very similar to those of any other assaultive offense. These include self-defense, consent, mutual combat, or proof that the instrument was not actually a weapon. For example, numerous defendants have successfully robbed banks with a hand held in their coat pocket pretending to have a gun. If they actually get away with the ruse, the defensive theory would be that the charge should only be robbery, not aggravated robbery, because a weapon was never actually used or displayed. Negating or disproving the weapon part of a charge can significantly impact a defendant’s range of punishment.
For example, in Texas, sexual assault is a second degree felony punishable by two to twenty years in prison. If a weapon is used during the commission of the assault, then the range of punishment expands to five to ninety-nine years in prison. This increase in punishment range applies to most weapon charges and can include other offenses such as robbery (to aggravated robbery), assault (to aggravated assault or battery), and burglary (to aggravated burglary). Any weapon charge that involves the use or display of a weapon during the commission of another offense will result in a higher level of punishment.