Ambiguous Florida Weapons Law Results in Felony Arrest For Student Possessing a BB Gun in School

In Florida, it is illegal for anyone to possess a “weapon” at school or a school-sponsored event without authorization.  A violation of this criminal statute is a third degree felony that carries up to five years in prison.  There are a variety of items that are considered “weapons” under the statute including razor blades and box cutters, in addition to the obvious weapons like guns and knives.  There is also a separate Florida statute that adds other items to the definition of a “weapon” such as brass/metal knuckles, tear gas and slingshots.  Whether other items are considered “weapons” under the statue is unclear.  Pocket knives are specifically excluded from the definition of a “weapon”, but what is considered a pocket knife depends on its size and other characteristics.  The obvious problem is that the Florida laws and statutory definitions do a poor job of telling students and parents what items are legal and what items could result in a felony charge.

In a recent weapons case near Jacksonville, Florida, school officials conducted a random search of students at a local public school.  They removed the kids from the classroom, scanned them with a metal detector and searched each of them.  They also searched their book bags and other belongings.  They found a BB gun in the defendant’s book bag.  The school officials said the BB gun looked and felt like a real gun.  It was not loaded.  The defendant was arrested for possession of a weapon on school property.

The criminal defense lawyer filed a motion to dismiss the charge since a BB gun is not a deadly weapon as referenced in the statute.  That statute lists certain specific items that are considered weapons along with any other “deadly weapon.”  BB guns are not specifically listed as “weapons” in the statute.  Therefore, the criminal defense attorney argued that since the BB gun is not specifically mentioned as a “weapon” in the statute, and a BB gun certainly is not a “deadly weapon” as also mentioned in the statute, the defendant cannot be charged with possession of a weapon on school property for a BB gun.

Florida courts have previously discussed the issue of whether a BB gun is a “deadly weapon” under Florida law.  It seems counter-intuitive (either it is or it isn’t), but the Florida courts apparently make this determination based on whether the BB gun was used in a way that was likely to cause great bodily harm.  For instance, in robbery cases where the defendant used the BB gun in a threatening manner to steal property, Florida courts have found that the BB gun was a “deadly weapon.”  However, in this case, the BB gun was hidden in a book bag.  It was not loaded, and no one even checked to see if it worked.  Therefore, there was no evidence that it was used or intended to be used to cause harm to anyone.  Therefore, the court agreed that the BB gun in this case was not considered a “deadly weapon” under the law, and the possession of a weapon on school property charged was dismissed.

This is a nonsensical application of Florida law.  A BB gun is not specifically listed as a “weapon” in the statute, and the unloaded BB gun found in the defendant’s book bag was not considered a “deadly weapon.”  Therefore, this BB gun was not a “weapon” under the statute.  That certainly makes sense.  However, if the same defendant took the same unloaded BB gun, robbed someone with it and threatened to shoot the victim the following day, that defendant would be charged with robbery with a deadly weapon.  The very same unloaded BB gun would likely be considered a “deadly weapon” in that case.  This, of course, makes no sense.  It is something that should be rectified by the Florida legislature so people are fully aware of what conduct constitutes a felony and what conduct is legal.

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