The Blog will continue to follow this case and may post a follow up article in the future when it is resolved. In the meantime, this fact scenario presents an interesting legal question, which we often encounter in Maryland courts. Can a person be charged with armed robbery when using a BB gun or other type of replica firearm? First off, there is no charge named armed robbery in the Maryland criminal code and there is no charge for attempted robbery. A person who is accused of taking or attempting to take something of value with force will either be charged with robbery or robbery with a dangerous weapon. It would be less confusing if lawmakers used the term armed robbery like they use armed carjacking, but they mean the same thing. Under Maryland law a dangerous weapon is defined as an object that is capable of causing death or serious bodily harm. Courts have consistently ruled that BB guns can cause bodily harm because they shoot a projectile, so a person can be charged with robbery with a dangerous weapon when a BB or airsoft gun is used. On the other hand, a person cannot be charged with a felony first-degree assault for using a BB gun unless the victim suffered serious physical injury. The law regarding first-degree assault requires the State to prove the gun was a firearm, which is a device that uses an explosive to expel a projectile. BB guns generally use springs or compressed air to expel projectiles, so they are not firearms.
It is a separate question whether a replica toy gun is considered a dangerous weapon, and the answer to this question may be up to the finder of fact. If the toy gun was a hard metal object a jury could easily consider it a dangerous weapon that could cause injury. On the other hand, if the replica was a plastic toy or water gun there would be a good argument that it is not a dangerous weapon. Once again, replica or toy guns could not be used to support a felony assault charge absent serious physical injury. BB guns and replicas also can’t be the basis for a charge of use of a firearm in a crime of violence. The fact that this defendant was charged with use of a firearm in a crime of violence and it’s mandatory 5-year sentence seems unjust. Hopefully the judge did not consider this count when deciding bail.
If you or a loved one has been charged with any criminal offense in Maryland contact attorney Benjamin Herbst anytime for a free consultation. Benjamin specializes in gun crimes in state and federal court and has secured the bail review release and trial acquittal of numerous defendants facing Maryland’s harsh gun laws. He can file to have arrest warrants quashed and also has extensive experience defending violent offenses such as felony assault and robbery. Many of these cases are domestic in nature and therefore Benjamin can assist in all domestic violence charges including second-degree assault and violation of a protective order. Contact Benjamin at 410-207-2598 to learn what defenses may be available in your case.
Resources:
Maryland Man Arrested After Attempted Armed Robbery With Fake Gun, thebaynet.com.