The state Supreme Court has spared a convicted felon an additional 4 1/2 years in prison by concluding that the air-powered pellet gun he was accused of possessing in violation of his probation is not a firearm under the definition spelled out in state law.
Ramon Lopez was on probation after eight years in prison for assault when, in 2018, the police in Bristol accused him of possession of a BB gun and a handgun that fired air-propelled, plastic pellets. He was charged with criminal possession of a firearm by a felon — a charge that would violate the terms of his probation.
A Superior Court Judge agreed with the police in Bristol. Lopez was sentenced to another eight years of incarceration, suspended after 56 months, and ordered to serve another 1,273 days of probation upon his release. In addition to customary probationary prohibitions against firearm possession upon release, Lopez was told that he was “not to possess any pellet guns, BB guns, zip guns, cap guns, or anything of that nature, or any firearm replicas, [or] anything that looks like a pistol, handgun, rifle, shotgun, assault weapon or the like.”
Lopez’s lawyer Jon Schoenhorn appealed, arguing that the BB and pellet guns were not true firearms as defined by state law. The Supreme Court agreed to take the case directly and released an unusually swift decision late Friday only about a month after hearing arguments.
The court, in a unanimous decision written by Justice Steven D. Ecker, concluded that, in order to prove that a pellet gun is capable of discharging a shot is a weapon, the prosecutors must prove that it is “designed for violence” and ” capable of inflicting death or serious bodily harm.” Prosecutors failed to produce evidence justifying either point in Lopez’s case, the court said.
The BB gun was easily disposed of, the court said, because it lacked parts needed to make it operational.
The court found pellet guns to be violent and dangerous weapons in earlier decisions, but said that prosecutors did make that case against Lopez.
Questioned during the hearing that led to revocation of Lopez’s probation, a Bristol police detective was unable to describe with any specificity the velocity at which the plastic pellet left the gun barrel. He said, “It did leave with a velocity. It did not simply fall out [of] the barrel.”
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When the trial judge asked whether the gun could “put a person’s eye out,” the detective said “I think that’s a hard determination for me to make, to say put somebody’s eye out. I can’t say that, to be honest.”
Ultimately, the trial court ruled against Lopez, finding that “the preponderance of the evidence in this matter showed that the defendant did possess the seized items within his residence” and that the airsoft pellet gun “was, in fact, a firearm … capable of discharging a shot, specifically, 6 millimeter pellets.”
State law has various definitions for weaponry. A firearm is “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged. … A deadly weapon is “any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon or metal knuckles.”
In the prior case, the Supreme Court upheld the conviction of a man accused of using an air pistol in an armed robbery because it decided the pistol “was designed for violence and was capable of causing death or serious bodily injury.”
To prove that something capable of discharging a shot is a “weapon” under state law, the court said prosecutors must produce evidence to establish that it is “designed for violence” and “capable of inflicting death or serious bodily harm.”
In the Lopez case, the court said, “There is no evidence of the purpose for which the airsoft pellet gun was designed. For example, the state did not introduce into evidence the operating manual, statements of purpose from the manufacturer’s website, or expert testimony describing the use for which the airsoft pellet gun was intended. In the absence of such evidence, it is pure speculation whether the airsoft pellet gun is a toy designed for recreational use, as the defendant contenders, or a weapon designed for violence and, therefore, a ‘firearm.'”
What’s more, the court said, “the state failed to present any evidence from which it reasonably could be inferred that the airsoft pellet gun in this case was capable of inflicting death or serious bodily harm.”