Tuesday, July 19th, 2005

An Inoperable Gun Qualifies as a “Firearm” within Meaning of Felon-in-Possession Statute

United States v. Rivera, Docket No. 04-5480-cr (2d Cir. July 18, 2005) (Walker, Jacobs, Leval) (Op. by Walker): File this one under the category of “Gee, I sure hope the defendant didn’t go to trial just to preserve this issue for appeal.” In this short opinion, the Circuit concludes that an inoperable gun (specifically, one with both a broken firing pin and a flattened “firing-pin channel,” whatever that is) qualifies as a “firearm” within the meaning of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Somewhat to our surprise, the Circuit had not previously answered this question. (Although, to our defense, several other Circuits — as well as several district courts within the Second Circuit — have answered it, and in the same way that the Court does in this opinion). The statutory language is unfortunately difficult to dispute: Section 921(a)(3) defines a “firearm” as “any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive . . . .” (emphasis added).

A glimmer of hope remains. The opinion discusses the possibility of a gun that has been so radically altered from its original design that it no longer qualifies as a “firearm.” As the Court hypothesizes: “For example, a gun with a barrel filled with lead, maybe for use as a theatrical prop, might perhaps no longer be deemed ‘designed to’ or ‘readily be converted’ to fire a bullet.” Op. at 6. To support this proposition, it cites a case from the District of Oregon ruling that guns “deactivited or modified by, inter alia, drilling barrels and filling them with metal pins or rods were no longer ‘firearms’ . . . because it would be ‘extremely difficult’ to convert them into operable weapons.” Op. at 6-7. Of course, since Rivera’s gun was not so radically altered, he cannot avail himself of this argument: “The broken firing pin and the flattened firing-pin channel did not change the design of the weapon.” Op. at 7.

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