Massachusetts Supreme Judicial Court Rules a BB Gun Does Not Qualify as a “Firearm”

The Massachusetts Supreme Judicial Court yesterday held a BB gun does not satisfy the definition of a “firearm” under the armed robbery statute.  The name of the case is Commonwealth v. Garrett.

The defendant had fallen on hard times in 2011 after losing his job.  He and his girlfriend, who was also unemployed, decided to rob stores in Pittsfield to get money.  They bought a BB gun from a sporting goods store to intimidate the victims who were manning the registers.  The defendant first robbed a pizza restaurant.  He entered the store while wearing a mask, pointed the BB gun (which appeared to be a real gun) at the manager, and ordered him to empty the cash register.  The manager complied and the defendant ran to the parking lot, where his girlfriend was waiting as the getaway driver.  They escaped and later split the money.

The defendant and his girlfriend used the same plan to pull off the robbery of a convenience store.  The defendant ordered one of the employees to open the safe and give him the money contained therein.  Approximately two months later, the defendant and his girlfriend went back to the pizza restaurant to rob it for a second time.  The defendant robbed the same manager, who recognized the defendant’s mask, clothes, and BB gun.  After giving the defendant money, the manager followed him to the parking lot and saw him get into the girlfriend’s SUV.  He called the police and gave a description of the vehicle.  The police were able to locate the SUV, with the girlfriend still driving, and arrest the defendant.  Following his convictions for three counts of armed robbery with a firearm while masked, the defendant appealed.  He argued primarily that he should not have been convicted because his BB gun did not qualify as a “firearm” pursuant to the armed robbery statute.  The Supreme Judicial Court agreed.

The Court noted the term “firearm” is not defined in the armed robbery statute.  Therefore, it considered how the Legislature had treated the regulation of all types of guns in other Massachusetts laws.  The Court found the manner in which firearms (such as pistols and revolvers) are treated by the law is entirely different than the manner in which BB guns are treated.   The Massachusetts Gun Control Act of 1998 does not mention BB guns at all.  However, other Massachusetts statutes contain rules related to minors possessing BB guns and the places where BB guns can be fired.  The Court also pointed out that it had previously ruled a defendant could not be convicted of carrying a firearm (a serious crime that carries a mandatory minimum jail sentence) for possessing an air gun (which is similar to a BB gun).  Finally, where the Legislature had intended for “firearm” to include BB guns in other statutes (such as the law that criminalizes carrying a firearm near a school), it had used language to make the inclusion clear.

The Court reduced the defendant’s convictions to the lesser included offenses of unarmed robbery and remanded the case to superior court.  The reductions could make a huge difference in sentencing, as masked armed robbery carries a lengthy mandatory minimum prison sentence and unarmed robbery does not carry any mandatory prison time.