School Law Advisory Winter 1999 Issue V

DRUMMOND Winter 1999 Issue WOODSUM & SCHOOL MACMAHON

245 Comm ercial Street Post Office Box 9781 Portland, Maine 04104-5081 LAW ADVISORY (207) 772-1941 FAX (207) 772-3627

#272 BB guns are dangerous weapons!

By Robert P. Nadeau, Esq.

Most readers now know that changes in the Individuals with Disabilities Education ("IDEA") authorize school officials to remove students from school for up to 45 days for possessing a "weapon" on school groups or at school functions.1 Administrators may wonder, however, if this particular provision applies to BB guns. We address this issue below, but also remind reads to review their own local weapons policies to ensure they in fact list BB guns as a covered item.

The IDEA does not provide a definition of the term "weapon" but states that it has the meaning given the term "dangerous weapon" under 18 U.S.C. § 930(g)(2), a federal criminal statute. A dangerous weapon is defined in Section 930(g)(2) as "a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length." This definition perhaps takes us a step closer to deciding whether a BB or pellet gun is a dangerous weapon, but it does not provide the certainty we would like to have when deciding if the law governs this situation.

Fortunately, our search for whether a BB gun is a dangerous weapon under federal law does not end with 18 U.S.C. § 930. That provision is the federal statute that makes it unlawful to possess a firearm or dangerous weapon in a federal facility. An individual convicted under that statute would be sentenced according to the regulations set out in the Federal Sentencing Guidelines Manual (the "Guidelines"). Since the Guidelines provide that an individual's sentence may be enhanced if he or she brandishes, displays or possesses a dangerous weapon, the Guidelines define the term dangerous weapon in very precise terms. In addition to stating that a dangerous weapon is "an instrument capable of inflicting death or serious bodily injury," the Guidelines go on to say that "a weapon, commonly known as a 'BB' or pellet gun, that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon. . . ."2

Federal courts interpreting the Guidelines have ruled on numerous occasions that a BB or pellet gun, whether loaded or unloaded, is a dangerous weapon. One such case is U.S.

Copyright © Drummond Woodsum & MacMahon. All rights are expressly reserved. Page 1 School Law Advisory Winter 1999 Issue v. Laughy, 886 F.2d 28 (2nd Cir. 1989), where the defendant brandished a pellet gun while robbing a bank in Vermont. Although the gun could not be fired due to an empty CO2 cartridge, the court ruled that under the Guidelines, "an inoperable pellet gun is a dangerous weapon." Several other federal courts have also concluded that BB guns are dangerous weapons.

According to research conducted by the Centers for Disease Control, the federal courts are right: BB guns are extraordinarily dangerous weapons. In the United States, approximately 30,000 people are treated annually in hospital emergency rooms for injuries resulting from the use of BB or pellet guns. The dangerousness of BB guns is especially significant to school administrators since the vast majority of those injured by these weapons are at or below the age of 19. In the early to mid 1990's, it is estimated that an average of 65 children and teenagers were treated in hospitals for BB or pellet-gun related injuries each day in the United States.

Considering the number of injuries that BB guns cause each year, it is not surprising the Guidelines specifically identify them as dangerous weapons. Although the definition the Guidelines provide may not initially appear relevant in the context of the IDEA, there is a trail that strongly links the federal sentencing regulations to the special education laws. Superintendents and other administrators confronted by a student carrying a BB gun into school may find useful the unequivocal pronouncement upon these weapons found in the Guidelines. Considering the complexity of the IDEA, those who struggle to understand and abide by it should welcome any clarity and insight into its meaning provided by other sources of federal law. All superintendents, however, should ensure that their local school weapons policies include BB guns as an example of a dangerous weapon prohibited at school. #

Endnotes

1. 20 U.S.C. § 1415(k)(1)(A )(ii)(I).

2. See Comment (e) to § 1B1.1 of the Guidelines.