Posted On: September 24, 2012 by Brian G. Thompson

Illegal Possession of a Firearm Defendant Found Not Guilty

Some of the more difficult cases that confront Aggressive Baltimore Criminal Attorneys are charges involving the possession of illegal firearms or possession of firearms by people who are prohibited to possess them due to a prior criminal conviction. Prosecutors in Baltimore City in particular are instructed to prosecute these cases under a zero tolerance policy and to seek incarceration in every cases.

Last week I successfully defended a man charged in a 10 count charging document of various charges alleging illegal possession and use of firearms. The charges included illegal possession of a short barrel shotgun, illegally discharging a firearm within the city limits, handgun on person, reckless endangerment and other related offenses. This case is a good example of how aggressively the State's Attorney's Office is prosecuting firearms cases, even in a situation like this one where the evidence was quite weak and the defendant had no prior criminal record. Here are the facts:

In March of this year, police responded to an area in Baltimore City for a call of "shots fired". Several people had called 911 and stated that 4 men in a car had fired 10 or 12 shots and then left the area. One of the callers provided the license plate number of that vehicle. Upon arrival the police were unable to locate the vehicle but did recover about a dozen spent 40 caliber shell casings on the ground. Using this information the police conducted records checks and determined that the registered owner of that vehicle, my client, in fact legally owned several weapons. These weapons were properly registered and included several 40 caliber handguns.

Based on this information, the police secured a search and seizure warrant for my client's home in Baltimore City. Upon entry they encountered my client and several other people. They confiscated about a dozen weapons including the 40 caliber handguns and two short barreled shotguns, one of which had a broken tip of the barrel. The end of the barrel was jagged and it was clear the it had not been done intentionally Interestingly, and as it turned out quite importantly, the damaged shotgun had a police evidence tag on it dated about 18 months prior to the raid. My client was charged in the ten count charging document described above.

I was fairly confident from my first reading of the charging document and statement of probable cause that the State would never be able to prove the counts related to the discharging of the weapon as the people who had called in the shooting to 911 had not identified themselves. The police had also not recovered any slugs which may have offered ballistics evidence, only shell casings. The count that concerned me was the possession of an illegal short barreled shotgun. The two shotguns that were recovered from my client were exactly the same make and model weapon. Each had a barrel length of 18 inches which is the legal minimum length.

The State's theory and the reason for only one count of this charge, was that the broken tip of the barrel reduced it's actual length to 17 1/4 inches rendering it illegal. As a hyper technical matter, I knew this might be correct as the statute does not specifically require that the State show that the weapon was modified or altered intentionally but I thought this charge was an extreme overreach, particularly given that the police had returned the weapon to him in the damaged condition after it was temporarily confiscated as evidence in an unrelated case. Nonetheless, the State not only insisted on proceeding to trial on the case (truth be told the ASA had no choice as the Baltimore City State's Attorney's Office has a zero tolerance policy on cases involving weapons and does not afford the individual ASA's the discretion to dismiss these cases - even one's that are this preposterous) but was seeking a one year jail sentence if my client was convicted.

The case proceeded to trial after, to his credit, the ASA did dismiss all charges other than short barrel shotgun charge as he knew he simply had no evidence to support these charges. (The ASA's are apparently allowed to dismiss individual counts within the case so long as the case is not dismissed in its entirety). There was essentially no argument as to the evidence in the case. My client did in fact possess the weapon and it did in fact have a barrel of less than 18 inches. I argued that possession of a short barreled shotgun is not a strict liability offense such as some other weapons offenses are, and because of that the State still had to show a general criminal intent. I argued that my client had not only legally purchased the weapon but it had been returned to him in that condition by the Baltimore City Police as evidence of his lack of criminal intent. The court agreed opining that it would not hold the defendant to a higher standard than the police who also apparently did not believe the weapon to be illegal lest they certainly would not have returned it to him. Now we just have to get them to return his other weapons which is always a challenge when dealing with the City Police.

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