The Volokh Conspiracy
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Unassembled and Incomplete Array of Shotgun Parts = Firearm
That the Bureau of Criminal Apprehension "was able to assemble the shotgun components using a stock bolt and a stock bolt washer from another firearm" "was sufficient to prove that the unassembled shotgun parts in this case constituted a firearm."
From State v. Stone, decided Nov. 28 by the Minnesota Court of Appeals but just reported in the Westlaw Bulletin (opinion by Judge Michelle Larkin, joined by Judges Denise Reilly and James Florey):
Appellant challenges his conviction for unlawful possession of a firearm, arguing … [among other things that] an unassembled shotgun lacking a stock bolt and stock bolt washer is not a "firearm" ….
At trial, Investigator Michael Dieter testified that he and Investigator Bradley Gadbois were "driving past a known drug house" and observed a car and a minivan parked near the residence. Dieter saw a woman in the car injecting heroin. Dieter approached the woman, and Gadbois approached the minivan. There were three people in the minivan. Gadbois spoke to the driver, Z.R. Gadbois became suspicious based on Z.R.'s statements, searched Z.R., and found a baggie containing suspected drug residue. Gadbois next searched the minivan and discovered, between the second and third rows of seating, a blue Ozark Trail backpack….
Dieter was familiar with the "type" of backpack found in the minivan and noticed that the backpack's detachable "fanny pack" or "day pack" was not in the minivan. Dieter searched the backpack and found an unassembled shotgun with two barrels, along with a "prescription box" and a paystub, which were both made out to Stone…. Dieter testified that Z.R. told him the backpack belonged to "Coco." Dieter knew that Coco was Stone's nickname….
Stone was convicted under Minn. Stat. § 609.165, subd. 1b(a), which prohibits a person "who has been convicted of a crime of violence" from possessing a "firearm." He contends that his conviction must be reversed because "an incomplete collection of disassembled component firearm parts is not a 'firearm' within the meaning of Minn. Stat. § 609.165, subd. 1b(a)." He frames his argument as a challenge to the sufficiency of the evidence to sustain his conviction and argues that the meaning of section 609.165, subdivision 1b(a), is intertwined with the issue of whether the state proved his guilt beyond a reasonable doubt….
The term "firearm" is not defined under Minn. Stat. § 609.165, subd. 1b(a). Nor does the criminal code provide a general definition. But the term has been defined and interpreted in caselaw. Most recently, in State v. Glover (2020), the supreme court defined "firearm" in the context of Minn. Stat. § 624.713, subd. 1 (2018), which prohibits certain persons from possessing a firearm. The Glover court held that "a 'firearm' is an instrument designed for attack or defense that expels a projectile by the action or force of gunpowder, combustion, or some other explosive force."
Although we are unaware of any precedential authority addressing unassembled firearms, caselaw does address inoperable firearms. In LaMere v. State, the supreme court held that a firearm that was temporarily inoperable because of a mechanical defect was nonetheless a "firearm" for purposes of Minn. Stat. § 609.02, subd. 6 (1971), which defines the term "dangerous weapon" to include "any firearm." 278 N.W.2d 552, 555-56 (Minn. 1979). The supreme court noted that such a weapon maintains its "apparent ability to inflict injury."
Later, in Gerdes v. State (Minn. 1982), the supreme court held that for purposes of a conviction for possession of a short-barreled shotgun under Minn. Stat. § 609.67, subd. 2 (1980), "the operability of the weapon at the time of possession is immaterial." The supreme court reasoned that "[t]he statute only addresses the original design of the weapon and reflects a strong public policy to dissuade persons from possessing a certain class of dangerous weapons."
In State v. Knaeble (Minn. App. 2002), this court held that a person could be convicted of unlawful possession of a firearm under Minn. Stat. § 609.165, subd. 1b(a), "without proof that the firearm was operable at the time of the possession." Knaeble involved an antique shotgun with "hammer springs" that were broken or had been removed, though testimony indicated that "the firing pins on the gun were in place" and that "the gun could be fired if the hammer were manually struck with sufficient force."
Stone does not dispute that the unassembled shotgun in this case was designed for attack or defense and to expel a projectile by action of an explosive force. See (defining firearm). Instead, he argues that "[b]ecause the evidence did not establish that the disparate firearm components could be assembled into a firearm, the components found inside the backpack were not a firearm within the meaning of the statute."
Stone's focus on whether the shotgun components could be assembled into a firearm "for purposes of brandishing as a threat" is consistent with the reasoning in the caselaw above. In those cases, the appellate courts reasoned that an inoperable firearm could be used to threaten injury and to commit other crimes. For example, in LaMere, the supreme court reasoned: "so long as a firearm has the apparent ability to inflict injury, the victim of an assault or robbery will respond in the same way whether or not the gun is loaded. An unloaded firearm has the same capacity to create fear and/or to cause people to comply with criminal demands as a loaded one."
In Gerdes, the supreme court indicated that possession of a short-barreled shotgun had been criminalized because of the impact of "merely displaying such a weapon." And in Knaeble, this court reasoned that "[e]ven if the actual use of the firearm is not at issue, its potential use by display is sufficient under Gerdes to extend the statute's scope to inoperable weapons."
The reasoning of those cases informs our decision here. We conclude that the potential use of an unassembled firearm is sufficient to bring such a firearm within the meaning of prohibited possession under Minn. Stat. § 609.165, subd. 1b(a), so long as it is possible to assemble the firearm. In so concluding, we note that we cannot write an exemption for unassembled firearms into Minn. Stat. § 609.165, subd. 1b(a). As this court explained in Knaeble: "[A]ll statutory prohibitions directed at firearms are presumably based on the dangerousness of those weapons. An inoperable firearm, lacking the same element of danger as an operable weapon, logically could be exempted from all statutory prohibitions. The legislature, however, has not chosen to create such an exemption. This court cannot supply language that the legislature has chosen to omit or neglected to provide."
Stone argues that "[a]n incomplete firearm that cannot be assembled into a firearm either for purposes of brandishing as a threat or to fire simply is not a firearm." That argument suggests that a constellation of firearm parts can never be assembled into a firearm if one or more of its parts is missing. We disagree. As this case demonstrates, it may be possible to obtain any missing part necessary to assemble a firearm. And as caselaw makes clear, it is not necessary that the assembly results in an operational firearm. So long as the state proves, beyond a reasonable doubt, that it was possible to assemble the firearm parts into a firearm as defined by caselaw, an unlawful possession charge is viable.
Whether a particular constellation of parts constitutes a "firearm" is a question of fact. In LaMere, the supreme court explained that because the defendant did not admit that the gun at issue was a "dangerous weapon," the district court should have submitted that issue to the jury instead of instructing the jury that it was a "dangerous weapon" as a matter of law. The supreme court explained that "generally a [district] court should not instruct the jury that an uncontradicted fact exists when that fact constitutes an essential element of the offense." Thus, the district court in LaMere "should have instructed the jury on the definition of 'dangerous weapon'" and "should have explained that a firearm may still be a 'firearm' even if it is unloaded or temporarily inoperable at the time it is used."
Treating the firearm determination as a question of fact addresses Stone's concern that "at some point, a 'firearm' missing components clearly ceases to be a firearm." Stone argues that "it would be nonsensical to call a barrel only, even with a scope, a firearm." We agree. But the law does not require juries to dispense with common sense. Thus, instead of attempting to craft a rule of law that adequately addresses the plethora of fact patterns that could be presented in a case involving an unassembled firearm that is missing one or more parts, we leave it to the fact-finder to make the firearm determination, based on jury instructions that define "firearm" consistent with caselaw and explain that a group of unassembled firearm parts can constitute a firearm, so long as it possible to assemble the firearm.
In this case, the district court instructed the jury that firearm "[m]eans a device, whether operable or inoperable, loaded or unloaded, designed to be used as a weapon from which can be expelled a projectile by the force of any explosion or force of combustion." In closing, defense counsel argued, "at what point [do] pieces of a firearm become a firearm? If it's … missing some pieces, is it still a firearm? That's for you to decide, but that's another reasonable doubt." The undisputed evidence showed that the [Bureau of Criminal Apprehension] was able to assemble the shotgun components using a stock bolt and a stock bolt washer from another firearm. Thus, the evidence was sufficient to prove that the unassembled shotgun parts in this case constituted a firearm within the meaning of Minn. Stat. § 609.165, subd. 1b(a)….
