A Gun By Any Other Name

Of all the doctrinally worthless expressions coming out of our Supreme Court, perhaps the worst ever was Potter Stewart's "definition" of pornography, "I know it when I see it," in his concurrence in Jacobellis v. Ohio.  So naturally, 7th Circuit Judge Richard Posner, via the Jacob Gershman at the WSJ Law Blog, feels compelled to up the ante in osner:aut:T:fnOp:N:1112642:S:0/">United States v. Dotson.

Steven Dotson, prosecuted for being a felon in possession, argued that the gun he used in an armed robbery wasn't a gun, but a hefty hunk of steaming junk.

The pistol is a Hi-Point .380 caliber semi-automatic. It was certainly designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken  components which make it inoperable.”

It was inoperable. It was corroded. It was missing critical pieces that would allow it to fire. But is it a gun?

The only question presented by his appeal is whether the pistol was a firearm, defined (so far as bears on this case) as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of any such weapon

Testimony was that it would take a skilled gunsmith hours to clean and repair the weapon sufficiently to return it to the point where it would expel a projectile. The government conceded that the thing in Dotson's hand couldn't have expelled squat, but that didn't change the nature of the beast.

The opposite position, which the government doesn’t quite espouse but doesn’t disclaim either, is once a gun always a gun: anything originally designed as a gun remains a gun no matter how dilapidated it becomes, how difficult to restore to operating condition—or even impossible.

At this point, Judge Posner, being, well, Judge Posner, inserts a cool pic of a 9mm Beretta cigarette lighter into the decision to show that sometimes a gun is just a cigarette lighter.

Naturally, this adds nothing whatsoever to his analysis, but demonstrates his diversity as he incorporates something other than ostriches in his decisions.  To show that the government's argument is unduly simplistic and limiting, Posner notes that someone made a shotgun out of a super soaker, "and surely the government doesn’t think that a felon who owns a gun that started life as a toy gun but now shoots real bullets can’t be convicted of being a felon in possession."

Ultimately, Judge Posner seizes upon the "designed to" language in the statute to hold:

The gun in this case, although in bad condition, neither was redesigned to be something other than a gun nor is so badly damaged that it can no longer be regarded as a weapon designed to fire bullets. And just as a very ill person can look entirely normal on the outside, the outward appearance of the defendant’s gun is normal. Designed to be a gun, never redesigned to be something else, not so dilapidated as to be beyond repair, the gun fits the statutory definition and the judgment must therefore be

AFFIRMED.

While the opinion is mercifully short, and includes an embedded image following rule number 4 of best blogging practices, it ultimately provides so little guidance as to what constitutes a weapon for a felon in possession as to give Potter Stewart a run for this money.  Not so dilapidated?  So how dilapidated does it have to be? How many parts need to be missing? How much corrosion is enough?

Yes, an object originally designed for the purpose of expelling a projectile maintains that "design" unless and until it has been redesigned to be a cigarette lighter or, who knows, a super soaker?  But Dotson's gun couldn't hurt anyone unless he threw it at them at a close distance, and then only if his aim was true.  What was once a gun was not a prop, meant to intimidate for sure, but hardly capable of firing a bullet, which is the evil the law seeks to prevent.

But if it had the capacity to emit a flame rather than absolutely nothing, Dotson would be innocent. Instead, by using a corroded, dilapidated, inoperable gun, Judge Posner holds that it's a gun.  Go figure.


 

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