Air Guns

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I’ve had several questions about BB guns, pellet guns, and airsoft guns, and whether certain criminal offenses can be predicated on the use or possession of such weapons. I’ll try to answer them in this far-too-long post.

First, some terminology. Generally, a BB gun is an air-powered gun designed to shoot round, metal .177 caliber projectiles. BB guns may be powered by an air cartridge or by air that is compressed by pump or lever action. Typical muzzle velocities are below 500 feet per second. Many guns that shoot BBs can also shoot .177 caliber pellets, non-spherical projectiles usually made of lead. (The lack of a bright line between BB guns and pellet guns is a point that will become relevant later.) Some air guns are designed to shoot only pellets, not BBs; these are often higher-end, and often higher-powered, competition and varmint hunting weapons, some with muzzle velocities up to 900 feet per second. Although less common, there are even some pellet guns with calibers larger than .177, such as .20 and .22. Again, these tend to be higher-end products. Airsoft guns are spring- or air-powered guns designed to fire round plastic projectiles, usually at muzzle velocities of approximately 300 feet per second. These guns are sometimes used by military and police forces for training purposes. Many of them are designed to replicate the appearance of genuine firearms.

Broadly speaking, pellet guns are the most dangerous air guns, followed by BB guns (some of which can also shoot pellets), and then airsoft guns. Now let’s look at some criminal charges and whether they can be predicated on the possession or use of these weapons.

Firearms Offenses

None of these weapons are firearms, because they do not use gunpowder explosions to propel their projectiles. See G.S. 14-409.39(2) (defining a firearm as a weapon that “expels a projectile by action of an explosion”); G.S. 14-415.1 (defining a firearm as a weapon that “expel[s] a projectile by the action of an explosive”). See also G.S. 14-269.2 (prohibiting the possession of weapons on school grounds, and distinguishing between “any gun, rifle, pistol, or other firearm,” a Class I felony under subsection (b), and a “BB gun .  .  . air rifle, [or] air pistol,” a Class 1 misdemeanor under subsection (d)). Therefore, possession or use of these weapons cannot support charges such as possession of a firearm by a felon, G.S. 14-415.1, or assault by pointing a gun, G.S. 14-34. See In re N.T., __ N.C. App. __, 715 S.E.2d 183 (2011) (airsoft gun is not a “gun” for purposes of assault by pointing a gun).

Robbery with a Dangerous Weapon

The appellate courts have stated that armed robbery can be committed using an air gun in the following cases: State v. Westall, 116 N.C. App. 534 (1994) (there was sufficient evidence to submit armed robbery to the jury where the defendant pointed a pellet pistol at the kidney of the clerk of a convenience store; the court emphasized that the weapon was a pellet pistol, that it was pointed at a vital organ from a short distance away, and that the state’s evidence showed that the pellets were capable of penetrating a quarter inch of plywood; “a pellet gun may be a dangerous weapon per se, or at a minimum . . . such a determination [may] be made upon a consideration of the instrument’s use”); State v. Alston, 305 N.C. 647 (1982) (the defendant was charged with armed robbery; an accomplice testified variously that the weapon used was a “pellet rifle” and a “BB gun”; the supreme court placed great weight on the difference, holding that the jury was properly permitted to consider armed robbery based on the suggestion that the gun was a pellet rifle, but that common law robbery should also have been submitted based on the possibility that the weapon was a BB gun).

By contrast, the court of appeals vacated an armed robbery conviction in State v. Fleming, 148 N.C. App. 16 (2001) (vacating the defendant’s armed robbery conviction because the state failed to introduce evidence of the capabilities of the BB gun used by the defendant, and stating that “[w]e decline to hold, as a matter of law, that a BB gun can never be a dangerous weapon[, but f]or a jury to find that a BB gun is a dangerous weapon, there must be evidence in the record of the BB gun’s capability to inflict death or great bodily injury”).

The bottom line, for me, is that at the charging stage, evidence that an air gun was used is probably sufficient to provide probable cause to charge armed robbery, unless the available evidence conclusively shows that the air gun in question was benign enough to fall below the dangerousness threshold. But the state may not be able to sustain a conviction without evidence of the weapon’s destructive capabilities, particularly if it is – or is described as – an airsoft or a BB gun rather than a pellet gun.

Assault with a Deadly Weapon

The situation is similar with respect to assault with a deadly weapon. Consider In re Lawson, 2002 WL 31166914 (N.C. Ct. App. Oct. 1, 2002) (unpublished). In Lawson, a juvenile was adjudicated delinquent for AWDWISI after he shot someone with a BB gun causing a bleeding wound in the victim’s thigh. The court of appeals found the evidence insufficient to support the adjudication, emphasizing that the weapon was a BB gun; that the shot was not from close range; and that the state introduced little to no evidence “as to the deadly nature of the weapon.” By contrast, in State v. Pettiford, 60 N.C. App. 92 (1982), the court of appeals held that it would not have been error to instruct the jury that a pellet pistol was a deadly weapon per se in a case in which the defendant shot the victim in the head, at close range, with what the defendant claimed was a .38 caliber pellet pistol, leaving a bullet fragment in the victim’s head. (As an aside, I’m not aware of the existence of .38 caliber air guns, or of air gun ammunition that is likely to fragment, so I’m not sure what was really going on in Pettiford.)

Based on the foregoing, my view is that evidence that A assaulted B with an air gun is probably sufficient to charge AWDW, unless there is conclusive evidence that the gun is sufficiently weak that it could not be considered deadly. However, in order to support a conviction, the state may need to introduce evidence of the weapon’s deadliness, including its status as a pellet gun; its muzzle velocity; its penetrating ability; the range at which it was used; the part of the body at which it was fired; and the injury it caused, if any.

Possession of a Concealed Weapon

Possession of an air gun can’t support the charge of possession of a concealed gun under G.S. 14-269(a1) (concerning “any pistol or gun”), because it isn’t a firearm, as discussed above. But can it support the general charge of carrying a concealed weapon under G.S. 14-269(a) (concerning “any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shurikin, stun gun, or other deadly weapon of like kind”)?

There are two issues here. First, while air guns are clearly weapons, are they “deadly”? It’s hard to apply the analysis used in the armed robbery and assault cases, because that analysis depends in part on how the weapon is used, while concealed weapons, as long as they remain concealed, aren’t used at all. But I still think that some variant of that analysis would apply, considering factors such as the type of projectile fired by the weapon, the muzzle velocity, and the like. So I think that at least some air guns could be deadly for purposes of G.S. 14-269(a). Second, what does “of like kind” mean? To be a weapon “of like kind” to the listed items, is it enough that a weapon is deadly and concealable, or must it operate in a similar manner as one of the listed items? If the latter, air guns likely would not fall under the statute, as they are not similar in operation to the weapons listed in the statutory text. I’m not aware of any significant cases on this issue. Cf. State v. Greene, 2010 WL 1960723 (N.C. Ct. App. May 18, 2010) (unpublished) (affirming a conviction under G.S. 14-269(a) based on a .357 handgun). My inclination is to say that “of like kind” means that only weapons that function similarly to the listed items fall within the statute, since otherwise the phrase “of like kind” lacks meaning. So I tend to think that air guns fall outside the scope of the concealed weapons statute as presently written. But I can imagine a contrary view, interpreting the statute broadly in keeping with its purposes. If you’ve litigated this issue in the trial courts or have other thoughts about it, please post a comment or send me an email.

18 comments on “Air Guns

  1. Jeff, thanks for tackling this seemingly “outlier” topic that line officers as a practical matter may encounter fairly frequently, both in the context of “live” on-scene decision moments and in the context of law-abiding citizens seeking practical guidance. In the absence of court precedent or a bright-line statutory rule I agree that officer analysis must focus on the facts of the specific case. For this topic, as in others, officers are well-served by focusing on clearly articulating relevant facts so superiors, attorneys, and judges have the best chance to understand what the officer observed on-scene. Your analysis and factors list is helpful practical guidance. Thanks for posting it!

  2. Jeff,

    Does your opinion change re BB gun as dangerous weapon for RWDW and CCW change if we know, at the time the offense was committed, that the BB gun was unloaded or didn’t have the CO2 cartridge attached?

    Similarly, can an unloaded or otherwise inoperable firearm support a RWDW conviction? I tend to disagree with my officers on these issues and would like some clarification if possible.

  3. There certainly are air guns with calibers as large as (and significantly larger than) .38 — the largest modern air guns I’m aware of are precompressed air rifles with a .69 bore, though those are usually used with a sabot (allowing a smaller bullet to be fired a higher velocity than would be the case with a full bore sized projectile); generally, these large bore air guns have comparable power to a black powder muzzle loader of the same bore size, and those above .50 caliber are capable of taking game as large as bison, while a .38 could take deer at reasonable range. I’ve seen air pistols up to .25 caliber, and it wouldn’t surprise me in the least if there was a 9 mm or .38 caliber in production, but that size is rather uncommon; it’s much more likely the gun involved in State s. Pettiford was a .177 caliber, CO2 powered revolver made to look like a .38 Special revolver (several companies sell models like this).

    To EBT, I’m neither a lawyer or a law enforcement officer, but consider this: use of deadly force is commonly exonerated when someone has presented an object that cannot be distinguished from a genuine deadly weapon — say, an air gun built to exactly resemble a firearm. How should an officer be able to tell, from across a room in a “shoot, don’t shoot” situation, whether either a firearm or indistinguishable air gun is or isn’t loaded? It seems to me that officers have no choice but to treat an object that appears to be a gun, as a gun.

  4. Jeff, thanks for highlighting the various distinctions. As an a
    Airsoft player I have often thought about their classification as whether they are “dangerous” or not.

  5. Airguns can be very dangerous, the thing is in the last couple of years the power of airrifles has rapedly gone from low power/velocity to very high power.
    These days spring powered and pcp airguns are so powerfull you could shoot a target on a 100 yards, you can even bring down a bore or deer with it.
    Taking this in concideration, it me be better that some laws will be looked in to again.
    Here in the Netherlands all firearms are illegal unless you have a permit.
    Airguns though are available for every one above 18 years.

    Tnx for the article Jeff.

  6. It seems to me that if I just imply that I have a gun, that is armed robbery or aggravated assault.

    I have also seen air rifles with velocities of greater than that of some low velocity firearms.

    If i have a larger caliber air rifle, and no charge behind it, the velocity would be significantly lower, especially if that projectile is as large as .3 or greater.

  7. It seems to me that lawyers like to slice fine points that assume an officer is some super human being, capable of distinguishing a replica from a genuine firearm at distances many of us can’t see anything.
    While an avid airgunner myself, it is my belief that one assumes a certain amount of responsibility ( intentionally or otherwise ) whenever one has in their possession anything, including a carved bar of soap, or high heeled shoe, that even might be mistaken for a firearm.
    Muzzle velocity, penetrating force, etc. are ( trust me ) all irrelevant in the event I might feel my life in jeopardy. For me, I expect nothing more from anyone else, including “trained” law enforcement human resources.

    • I agree to a point. Most people know that if you’re shooting an air gun and you see a cop approach, then it’s wise not to point the air gun at the cop. I have never pointed an air gun at anything or anyone I don’t intend to shoot. If you point an air gun at a cop, then you really are asking to get shot. On the other hand, if you don’t have the air gun held in a threatening manner, and the cop just shoots you quickly without warning, then that cop is really asking to get fired from a job or to be fired upon in self defense. They have vests, but I don’t, so they can afford to at least warn before openning fire, especially if the “armed” person isn’t an immediate threat. For example, I’ve had lots of fun shooting BB guns at targets in the back yard. If I heard shots fired, saw anyone shooting in my direction, then I’d do what any reasonable person would do. I’d take cover or turn around and possibly end up shooting back in order to protect myself. In a real life example of how being “armed” can be good, my previous residence was in a city where a lot of armed criminals would like to call the shots. I’ve found any semi-auto BB gun over 500 FPS to work well in real life self defense situations at a range less than 16 feet in 18-24 shots per thug if I aim for the eyes, throat or nuts. I wouldn’t call it a weapon, just a good deterrent. If I wanted a weapon, I’d go for .50 cal. air rifles, a 60+lb bow or a firearm. At the time, I had 7 muzzle loaders for weapons just in case more than one criminal showed up armed and ready to shoot at my residence. I’m no lawyer or cop and I’ve had no training or government permission to recognize my right to keep (to possess) and bear (to bring forth) arms (weapons). The supremecy clause has me covered, so I’m not worried about anyone crying to the cops about my past actions or current beliefs. I also recognize that fine points need to be sliced sometimes when it’s a fine line. Plus, judges slice more points than the lawyers do. It all depends on the situation, and that’s how due process works. Or do we just chuck people in prison or execute them when we suspect wrongdoing? I guess it would figure, but it doesn’t mean I have to agree with it.

  8. Interesting article. I’ve never considered the stance on air rifles.

    Thanks for the post Jeff.

  9. I filed and won a post conviction action to set aside a guilty plea to armed robbery based on use of air soft replica pistol.  This was in Mississippi. As I recall, the jurisdictions are split, but different outcomes were sometimes statute based. I used an expert from California with specific background in air soft guns. This was a low end kids toy, but a replica that looked like a pistol. 

    Armed robbery historically required use of “deadly weapon”. The false but reasonable perception of the victim that a deadly weapon was in use could not support the enhanced armed robbery charge. So a hand in a coat pocket presented like a gun could not support the charge. In some jurisdictions, like federal for example, this is not so. 

    However, in jurisdictions that require a deadly weapon, a non deadly weapon, used in a way that could cause serious bodily harm will support a charge. So a golf club or bat could be a deadly weapon if used in that manner. One court held a boot could be a deadly weapon. 

    Also, with a deadly weapon per se, like a firearm, it usually does not matter if it was unloaded or inoperable. It meets the statutory definition in most states. With starter guns, the cases diverge. Our court has held that it could be a deadly weapon, focusing on the mussel blast. IMO this should fall into the manner of use line of cases. 

    I agree with the comments re the outcome may depend on expert testimony re actual power of an air soft or bb gun.  Air is not really the distinguishing fact. My research showed that air was used in the late 19th and early 20th century in the very powerful weapons, used for killing big game. 

    The distinction is in power and the projectile. Most air soft bb guns are toys made for shooting people for fun. They are not a deadly weapon per se.  However, like a boot, they can become one, if used in a manner to threaten serious bodily harm, e.g., aim at the eye from close range.  

    Anyone defending one of these cases should definitely take a hard look at challenging whether a BB or air soft is a deadly weapon in those jurisdictions where it is not settled. Even if a case seemingly decided the issue, an expert may make the difference. 

    Of course, this is a different issue from the reasonableness of police use of deadly forced when threatened with an air soft gun that looks real. In such a case, the reasonable belief of the officer is the essential issue, not whether the “gun” was in fact deadly. 

  10. I have friend that has a felony on his record and he used to go to plinking tournaments which a air rifle is used. Will he be able to own a air rifle again and be able to go to plinking tournaments again??? I know air rifles are not firearms but i think the real question is can he own a air rifle with a felony on his record???

  11. Is it illegal for felons to own air rifles or bb guns???

  12. I have a particular question about spring loaded airsoft guns. It’s the kind with the orange tip. Is there a law at all and if so what is the law related to playing airsoft guns within close proximity of neighbor’s homes. Adults are playing airsoft gun games in their backyard and the neighbor is afraid it will hurt someone or something in her backyard.

  13. this had nothing to do with AIRSOFT guns.(6mm plastic pelet shooting replica firearms.) that is why i came to this site after searching North Carolina airsoft laws.

    • see comment below

  14. Issue: Reviewing § 14‑269.2

    It seems the legislative intent was to create felony charges for firearms and explosives;

    Then the legislature created a misdemeanor level for weapons that can cause bodily harm in subsection d (i.e. BB gun, stun gun, air rifle, air pistol, bowie knife, dirk, dagger, slingshot, leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), firework, or any sharp‑pointed or edged instrument )

    Considering Airsoft guns are treated federally (15 U.S.C.A. § 5001 (c) – § 5001) as imitation firearms or “Look-alike firearm” defined as:

    “For purposes of this section, the term “look-alike firearm” means any imitation of any original firearm which was manufactured, designed, and produced since 1898, including and limited to toy guns, water guns, replica nonguns, and air-soft guns firing nonmetallic projectiles.”

    Such term (look alike firearm) does not include any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or traditional B-B, paint-ball, or pellet-firing air guns that expel a projectile through the force of air pressure.

    When looking at a situation where an elementary student brings a spring loaded airsoft gun to an elementary school in his bookbag without intent or showing it in a threatening manner:

    For Discussion: Is a spring loaded Airsoft Gun an “air pistol” as alluded to in the statute taking into consideration the comparable items (which can cause bodily harm) in the Statute? It is definitely not a “like” item as it pertains to potential injury. I believe you are speaking too broadly when you include AIRSOFT guns (spring or CO2) in your description as “Air guns”. The only thing they have in common is the word AIR.

    Basically, airsoft guns have softer pellets and shoot at muzzle velocities considered non-lethal, while BB guns shoot hard pellets at higher muzzle velocities that can be lethal.

    Airsoft guns are fun, recreational tools that can be used safely by both adults and supervised children. There is little risk of injury, and airsoft guns can be safely used in shooting games.

    Although historically marketed as a children’s gun, BB guns should only be used by children with close adult supervision. They can be deadly if misused.

    Your Thoughts……

  15. It’s been 2 years since you posted this, so I don’t know if you care for comments anymore, but…

    Are you dealing with all of NC or just any particular part. I do know that in section 2-9-16 of the Wake County Firearms Ordinance, a “firearm” is defined as “any gun, rifle, pistol, or other barreled weapon capable of discharging a projectile such as shot, bullets, pellets, or other missiles at a velocity of at least 600 feet per second and actually loaded with such a projectile”.

    This is just the ordinance on discharging a firearm in various locations and is taken from the Wake County government website.

  16. If persona A somehow managed beat person B to death with a Pool Noodle, AT THE TIME OF THE ASSAULT the Pool Noodle would be classified as weapon and possibly a deadly weapon.

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