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Univ. of San Diego School of Law

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Tuesday, November 18, 2008

When a Gun Isn't a Gun?

18005029_240x180U.S. attorneys had a conundrum on their hands -- they had the evidence to prove a convicted felon was in possession of a gun, but they couldn’t prove the gun was a gun.

What attorney’s had on their hands was an American double-action revolver that was manufactured between 1880 and 1941.

The problem is that federal code states that the weapon is not a firearm unless it was manufactured after 1896. Without a definitive production date, the gun was inadmissible as evidence.

At the time, the attorneys were trying to charge Lawrence Ray Cook with possession of the weapon.

Omaha police picked up Cook last September after a hit-and-run crash. U.S. attorney Joe Stecher said that Cook left the scene but he flagged down officers later to tell them he caused the crash.

“His testimony was that he swerved to miss two pedestrians and he hit another car. And as he was driving away they threw the revolver in the back of his car through the open window,” Stecher said.

The attorney said that Cook couldn't explain how the revolver got into his pocket.

However, it didn't matter because couldn't prove what Cook had was a gun.

But they proved something else instead.

“Two rounds of live ammunition and an empty casing gave us the ability to prosecute for felony in possession of ammunition,” Stecher said.

Read full article here. [Brooks Holland]

http://lawprofessors.typepad.com/crimprof_blog/2008/11/when-a-gun-isnt.html

Criminal Law, Guns, News | Permalink

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