A CO 2 BB Gun is a "Firearm" Under Minn.Stat. 609.165

State v. Haywood, Minn.Ct.App., 9/28/2015.  Review granted, 12/15/2015.  The state charged Mr. Haywood under Minn.Stat. 609.135, subd. 1b(a) with possession of a firearm by an ineligible person, the "firearm" being a Walther CP99 Compact .177-caliber BB gun.  This BB gun's propellant is CO2 and is available over on Amazon for seventy bucks plus shipping.  Here's what the statute says:

Any person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, and who ships, transports, possesses, or receives a firearm, commits a felony and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both. 

There is no definition of "firearm."  In large part because of Justice David Stras, when there is no statutory definition of whatever word or phrase happens to be in play the appellate courts have run to their favorite dictionary.  It turns out that every dictionary that this panel of the court of appeals consulted - including Black's Law Dictionary - said that a "firearm" is a "weapon from which a shot is discharged by gunpowder."  Oops.

Alas, the problem for Mr. Hayword is a series of appellate opinions that have said that a "firearm" under various other provisions of Chapter 609 includes a CO2 BB gun.  State v. Seifert, 256 N.W.2d. 87 (Minn. 1977) (Section 609.11 enhanced sentencing provision for use of possession of a firearm includes CO2 BB guns.)  State v. Newman, 538 N.W.2d 476 (Minn.Ct.App. 1995) ("Firearm" in the Drive-by shooting statute, Minn.Stat. 609.66, includes CO2 BB guns).  State v. Fleming, 724 N.W.2d 537 (Minn.Ct.App. 2006) (Minn.Stat. 624.713, subd. 1(b), prohibiting possession of a firearm by a person convicted of a crime of violence encompasses CO2 BB guns).

It seemed that in each of those cases the court lamented the legislature's sloppy drafting by not including a comprehensive definition of "firearm."  The legislature's response was pretty much to leave well enough alone.   They either amended or enacted statutes having to do with "firearms" without providing the court's begged-for definition.  That being the case the courts presume that the legislature is adopting the court's interpretation.

These older Opinions that the court of appeals is relying upon predate the "law by dictionary" fad that the appellate courts are now caught up in.  So,Mr. Haywood may yet get another shot, so to speak, at getting his conviction overturned.