To our chagrin, we have just discovered that you can seek an explanation from another person cocerning your differences while carrying an AK47 AND still get the benefit of a self-defense charge.

This is because PC 9.31 prohibits self-defense only if you carry the weapon in violation of 46.02 or 46.05, neither of which restrict the use of rifles. We are going to try to argue it is a handgun, capable of being fired with one hand. Does anyone have any other ideas?

Trust the jury to know that even though possession of the firearm is lawful it may not be reasonable.

Agree with JB and would respectfully advise you to stay away from the AK-47 pistol analogy. Any hunter or sportsman or collector on the jury will strongly disagree with that characterization, if the weapon is in reality a rifle.

The argument suggested by KS, with all due respect, is like arguing a bicycle is a motorcycle because they both have two wheels. Rifles are clearly defined in the law as to length and in common sense.

Even if the AK has a folding stock, it is still a rifle if the barrel length is longer than 16", so long as the total length with stock folded is not less than 26 inches. As stated by 46.01, section (10) "Short-barrel firearm" means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.

So even if your AK were illegally altered to less than 26 inches overall or had a barrel shorter than 16 inches (or both), it would not lose it's character as a rifle and become a pistol, it would simply become a short-barrel firearm. Which is not a pistol, even if it is pistol sized.

Although some rifles like the AR15 have been legally manufactured in recent years and classified as pistols due to a pistol grip (no stock) and a very short barrel, the modification of an existing rifle to that same size by a citizen without a permit to do so is a federal violation and the rifle becomes a short barrel firearm and not a pistol. Hope this makes sense.

But any hunter on your jury will likely feel if they chop their rifle or shotgun to a pistol length, it is still not a pistol, just an illegal rifle. IMHO.

My suggestion would be to focus on the fact your D is carrying an assault rifle. Kind of like going deer hunting with a machine gun. Most skilled self defense advocates would recommend a shotgun in that scenario, primarily because the risk of wounding in innocent third party is greatly enhanced by using a semi-automatic assault rifle with high velocity bullets vs. a shotgun.

I'd stick with the JB explanation rather than risk alienating a juror with a farfetched attempt to make a rifle a pistol.

I really like JB's approach. It'd be a good theme for the case.

[This message was edited by Greg Gilleland on 10-26-07 at .]

[This message was edited by Greg Gilleland on 10-26-07 at .]

[This message was edited by Greg Gilleland on 10-26-07 at .]

Can you say it's a machine gun?

I'd bet it is a semi-automatic assault rifle (fires one shot every time trigger is pulled) vs. machine gun (fires multiple shots for one trigger pull). Only your firearms expert can say for sure.

You can't say it's a machine gun unless it is a legal machine gun under Title III (I believe) of the Federal Firearms Act, in which case it would be some sort of violation under Federal law to use that weapon under the statute in question.

If it was illegally modified to fire fully automatic, which is somewhat easy to do if you buy illegal parts and modify it yourself, then you have possession of a prohibited weapon.

I've had this issue come up years ago, with a shotgun rather than a rifle, and the best thing to do is let the charge in and argue the reasonableness, like JB says.

What I would be concerned about is attempting that characterization and having the defense attorney, in his case, call a litany of firearms experts or peace officers with knowledge of firearms (perhaps the baliff in the trial), and simply ask each of them:
-"Is this a rifle or a pistol?
-Even though you say it is a rifle, does it become a pistol if it can be fired one handed?
-Thank you, no further questions".

I'd stick to the accurate characterization that it is an assault weapon. It is overkill to bring a weapon such as this to "seek an explanation" and most on the jury will feel that way. I believe anyone who knows about weapons will develop that opinion without any prompting from the state, and due to the hysteria created in the 90's as to assault rifles by President Clinton and his ilk, even the lay citizen who knows nothing about firearms will have a knee jerk reaction to the use of an assault weapon in an attempt to "seek an explanation".

Would be interesting to know if the defendant also had a pistol or pistols back home. My bet is that he has several. So, why didn't the defendant choose one of them to seek a "peaceful" explanation? A good firearms trainer could provide testimony on the sort of education that is provided regarding self-defense. I'm betting any decent trainer would not believe it is reasonable to take an assault weapon (I like that description) rather than a handgun. And, it would be interesting to hear the defendant's explanation why an assault weapon was necessary.

I've always liked the training that I have seen in my son's karate classes. If you can, run. The point is to live for another day, not show someone how well you can bow up on them.

Again agree with John. The defendant is taking what is correctly catagorized as an assault rifle. It would be interesting to know to further that thought whether it had a 5, 10, 20 or 30 round magazine.

While I agree that arming yourself to seek an explanation is factually per se unreasonable, unless you are really looking for trouble, the law gives that defensive charge. Why not call the police? Why not see a lawyer to take the other party to court and seek a tro or a peace bond?

Just as breath test experts from dps prefer to call the intoxilyzer an "instrument" rather than a machine, although clearly it fits into either catagory, I would refer to the AK-47 as an "assault rifle" even though it falls also under the larger catagory of "rifle", since it is clearly defined by federal law as an assault rifle or assault weapon.

I am reminded of the song "Today was a good day" by Ice Cube that used to be on an ABC bball or football sports show in the 90's as a theme. The key lyrics were:

"Today I didnt even have to use my a.k.
I got to say it was a good day."