On August 3, 2011, the Second District Court of Appeal issued an Opinion in Goodwin v. State, 36 Fla. L. Weekly D1695 (Fla. 2DCA 2011), which affirmed a jury verdict finding the use of the Marksman Model 2002 air pistol (in a robbery) could be determined to be a "deadly weapon". Initially, you wonder what the jury and judges were drinking when you read the Opinion, because this is a spring action pistol type BB gun that only shoots at 200 fps! That's so slow that it's hard to get it thru thin cardboard! Most of the slow stuff starts around 325 fps. But . . . maybe they really got it right???
The Marksman shoots standard size copper or steel BB's -- .177. It also shoots darts, bolts, and .177 pellets. While there was testimony in this case that the BB can't even penetrate an eye at that speed (tested on a dead pig eye) -- the problem is likely that if loaded with a dart or pellet -- it could. Now -- I'm not saying that makes it a "deadly weapon" -- because a deadly weapon is one that is "likely to cause death or great bodily harm by its use or design) -- and to me . . . unless it's loaded with something beyond a simple .177 BB -- or at least the criminal is carrying additional ammo darts, or pellets on his person for ready use and loading -- it just is NOT ordinarily possible the gun is more than a souped-up toy. In fact -- even with the darts loaded, unless you tip them with poison, or aim for the eye -- this is really a far far stretch of the imagination saying it is a "deadly weapon". I just saying -- I understand how this could confuse some people, including judges, who probably don't understand anything about firearms or weapons, in the first place -- and have little sympathy for someone committing a robbery.
Could the same result occur if the gun could only fire BB's? Damn -- I would hope not!
How about just airsoft?
Well . . . glad you asked . . . because Airsoft uses a plastic BB (different sizes) -- which have even less penetrating power than the steel and copper. BUT . . . and this is the big "but" -- they are still classed by Florida law as a BB gun -- and thus -- some judge who knows less than nothing about this stuff -- could say that: "Hey, we found 200 fps to be OK for a deadly weapon in the Goodwin case -- what's the difference!"
Anyway -- the moral:
Don't rob a store with the Marksman 2002. Or -- send a judge a copy of my book so they can understand this stuff as well as you do. Have a great day!
jhg copyright 2011 by jon gutmacher
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I received an email on this article, and see it needs some clarification:
ReplyDeleteAs a victim the assumption is that it is a "firearm" - unless you are sure it is not -- and you can defend yourself accordingly without concern -- but in a criminal case the question becomes a sentencing issue -- as well as one of degree -- and a defense to lessening the charge and sentence is that it was not a "firearm" or "other deadly weapon". That's what this case was all about.