Getting called regarding HS student who was flashing what turns out to be an air pistol at the High School. Looks just like the real thing and doesn't have red plastic tip or any other readily observable distinguishing feature. Any offense come to mind?
Terroristic threat? I'm not in the office so am just winging it, but it might fit.
[This message was edited by Larry L on 03-06-07 at .]
Hey Patrick, how are things?
Depending on what the kid did with the fake pistol, you might try Education Code Sec. 37.123 (disruptive activities on public school campus).
It is just a misdemeanor, but it might fit the bill.
Could try Deadly Conduct and say it was a firearm that was not loaded.............
Or the low charge of DOC. As its a breach of the peace by displaying it..........
Terroristic Threat could fit if the proper responce was met.
I would not go with an education code offense, unless the kid was just dumb and you feel sorry for him.
[QUOTE]Originally posted by Lubec:
Could try Deadly Conduct and say it was a firearm that was not loaded.............QUOTE]
"Firearm" Means any device designed, made, or adapted to expel a projectile through a barrel by using the energy adapted from an explosion or burning substance or any device readily convertible to that use..."
From Chapter 46 thats what a firearm is.
So whats the offense for driving up to another driver an pointing a toy gun at them that they think is real?
Assault--threatens another with imminent bodily injury?
Terroristic Threat--places another in fear of imminent serious bodily injury?
Terroristic threat seems like a better fit.
So if you use a toy gun in the commision of a robbery, its not a firearm so its only robbery and not agg robbery?
Its my understanding that chapter 46 defines firearm for that chapter.
A bb gun or other like item I thought fit the general firearm def for the rest of the PC.
From what reading I have done a big question is was the BB gun loaded or unloaded.
You probably ought to cite to the opinion of the court in Adame rather than the concurrence. I can't find it on the CCA site to link here. In Westlaw I see that the State presented testimony that the BB gun was a deadly weapon in the manner of its use or intended use. The Court said this regarding whether it was loaded:
"It is not necessary, however, to place an additional evidentiary burden on the State to affirmatively prove that a BB gun, which is not a deadly weapon per se, was loaded at the time of the commission of the offense. Rather, in proving use of a deadly weapon other than a deadly weapon per se, the State need show only that the weapon used was capable of causing serious bodily injury or death in its use or intended use."
The other question was what offense if you point a "toy" gun at someone. If you are talking about a toy pistol rather than a BB pistol, I don't know that you can rely on Adame. So, if we know for a fact that a pistol is a toy, a robbery using the toy is at most a regular robbery by "placing another in fear of imminent bodily injury or death." Unless you have facts showing that the toy was used in some other manner capable of causing serious bodily injury, e.g. as a club.
The other thing to keep in mind is that, while defendants are often arrested with BB guns and toy guns, that doesn't always mean that the weapon used in some prior crime was not a real pistol.
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