Minnesota Court of Appeals Confirms BB Guns as Firearms

umarex walther air pistol

The Minnesota Supreme Court is expected to weigh in on whether or not this BB gun is a ‘firearm.’ (Photo: Umarex)

The Minnesota Court of Appeals held up a statute that defines BB guns as firearms when it comes to prohibited persons. The decision comes as bad news for defendant David Lee Haywood, 37, who was found guilty of possessing a firearm and now faces a five-year sentence.

Police searched Haywood’s car after discovering that he was in violation of a no-contact order with a passenger during a 2013 traffic stop. A compact air pistol was found in his glove compartment. Haywood was previously convicted of felony drug possession and was therefore not allowed to own any firearms or airguns in Minnesota.

Haywood’s airgun, an Umarex Walther CP99 Compact, uses CO2 cartridges to shoot .177-caliber BBs. The appellate court ruling follows previous decisions maintaining that airguns, when in the possession of felons, are no different then firearms.

david lee haywood

David Lee Haywood was convicted of felony drug possession in 2005. (Photo: Star Tribune)

The jury was instructed to treat the airgun as a firearm during deliberation. Normally state law makes an exception to the definition of firearm specifically for BB guns and airguns firing a projectile smaller that .18-caliber.

“It doesn’t matter if you bought a BB gun at Wal-Mart or a handgun at a gun shop,” said special assistant state public defender Grant Gibeau, reports the Star Tribune. “Regardless of motive or intent, if you aren’t allowed to possess a firearm, you will end up going to prison.”

“Because a BB gun is a ‘firearm’ within the meaning of prohibited possession of a firearm ,” wrote Appeals Court Judge Michelle Ann Larkin, “the district court did not err by denying Haywood’s motion to dismiss the charge under the statute or by instructing the jury that a BB gun is a firearm under Minnesota law.”

“And because the term ‘firearm’…has developed a reasonably definite meaning under caselaw, the district court did not err by refusing to dismiss the charge on due-process grounds,” said Larkin in closing.

Minnesota courts upheld the state’s “airguns can be guns” statute in two other appeals dating back to 2006 and 1977. Airguns are also considered firearms if they’re used in the commission of a crime, such as a robbery or drive-by shooting.

The Minnesota Supreme Court has agreed to hear Haywood’s case based on his attorney’s claim that the previous cases were not correctly decided. While the appeals court held that the law was applied fairly, the supreme court may have something else to say about the state’s potentially-conflicting laws.

The last case the state supreme court heard on this policy was in 1977, where the court upheld the legislation based on the definition of “firearm” set by the Minnesota Department of Fish and Wildlife.

About the author: Max Slowik is a writer with over a dozen years of experience and is a lifelong shooter. He has unwavering support for the Second Amendment and the human right to self-defense. Like Thomas Paine, he’s a journalist by profession and a propagandist by inclination.

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  • mach37 September 2, 2016, 4:02 am

    Who is in charge of fireamrs, the Federal Courts, or the BATFE?

  • Bob L. July 2, 2016, 4:49 pm

    So, I guess reckless in a driving a Tesla could be considered using a “firearm” while committing an illegal act in Minnesota or Wussconsin?

  • Nicole March 5, 2016, 5:42 am

    I think tho is fuvking crazy that you would even tell people how to use make in how to use a damn gun my brother was only 12 and by stander of a fucking gun keep certain things private

  • Walt Herman January 3, 2016, 9:59 am

    In New Jersey BB and Pellet guns are firearms, I actually need permits to buy either a BB/Pellet rifle or pistol.

  • Donn January 2, 2016, 3:36 pm

    Michigan just passed legislation adding .22 cal pellet guns to its statute defining what ARE NOT fire arms. Thus it includes BB, .177 and .22 cal pellet air powered pistols and rifles.

    I agree use of an air gun in the commission of a crime pushes it into the firearm category though.

    • RogueBlackheart January 3, 2016, 10:48 pm

      So I guess that the use of a slingshot or rock, or screwdriver to commit a crime also magically converts these into “firearms”?

    • Steven May 20, 2016, 1:04 pm

      Next; Pee shooters, straws w/accompanying spit wads, tee shirt cannons at concerts, oh no,. paint ball “guns”

  • Larry January 2, 2016, 1:14 pm

    How can anything be a firearm when there is no “fire” involved? Without gun powder, you have no combustion & therefore, no fire involved. Will they decide next that sling shots are firearms? What foolish little leftists we are dealing with & all because too many people are content to vote for those with “D”s behind their name.

    • dave January 5, 2016, 6:48 pm

      @larry. I have a compressed air .22 cal. pellet rifle that will put a 35 grain pellet @1400fps. clean through your head at 15meters. yea, they are firearms. don’t be stupid, please?

      • Dittohd January 25, 2016, 11:22 pm

        NO Dave it is not a “firearm” I have a air pistol and an air rifle. Both can put a pellet through a 1″ board and can be used to kill many small rodents and animals and maybe you through your head, but that does not make it a “fire” arm. It is an AIR GUN. If they want to include air guns in commission of a crime harsher penalties, fine but stop this liber panty waste redefinition of words. Marriage is not between 2 homosexuals, or a human and an animal. Playing baseball with a tennis ball does not mean you are playing tennis. Buy a dictionary or look up words online.

      • Cam August 2, 2016, 1:15 pm

        Not a firearm, no serial number requirement and no required federal nics check. Do you honestly think the aft would not jump to take away more freedom if they could.

        • canemah December 23, 2016, 11:39 am

          Does this mean that a 16yo can no longer own a BB gun, or that Cub Scouts can no longer include gun safety in their curriculum?

      • chris February 11, 2017, 7:08 pm

        You are a MORON!!!!!!!

  • WilliamDahl January 2, 2016, 7:21 am

    The Founding Fathers did not see fit to put ANY restrictions on who could bear arms, so even if he had a real firearm, it would have been legal as far as I’m concerned. All gun “laws” that came after the 2nd Amendment are unconstitutional.

    • Charles Kimberl January 2, 2016, 10:33 am

      Time for some ‘jury nullification’ to stop this.

    • 2ndamendment_supporter January 5, 2016, 5:13 pm

      Wow…..So, a convicted violent criminal…say someone who has beaten a loved one to within an inch of his or her life, sexually assaulted a child, or……. the list could go on ad nauseam, should still have a right to a firearm? I disagree. Not even respectfully disagree…We are a nation of laws. If you want to be a felon in possession…go to Somalia or perhaps Syria. I can’t believe anyone would believe that drivel.

  • Chick January 2, 2016, 2:39 am

    No doubt the criminal was up to no good with the BB gun, but this is bullshit, defining a BB gun as a firearm. A BB gun is not a firearm under any circumstances.

  • PeashooterJoe January 1, 2016, 7:48 pm


    • George January 1, 2016, 5:06 pm

      Why? The state legislature have the right to determine whether or not CONVICTED felons can or cannot own whatever they deem to be firearms. I know we talk about slippery slopes but this is a convicted felon exception to the rule that BB guns are generally not regarded as firearms.

      In my home state of NM, BB guns aren’t covered in the same way as they are in WI. Therefore, when a group of punks held up citizens with a BB gun, we were unable to charge them with armed robbery and had to charge them with simple robbery because the BB gun wasn’t a real firearm. Tell me how that makes sense? A citizen looking at the BB gun in the photo is likely to think it is real and hand over their wallet just the same as if it was a real gun.

      If a punk pulls out a realistic looking BB gun and I or one of my fellow officers shoots him (like in Cleveland) it is ruled justified because in a fraction of a second, we are unable to determine if the gun is real or not. To me, if a person is convicted of a felony level crime involving drugs, guns, robbery or other violent act, then they should give up the right to own any type of firearm for the rest of their lives. Sucks to be them but they made the choice to act as they did, not me, not the judge and not the public. Punks like this need to be kept off the street and in jail where they can’t harm others.

      • Blasted Cap January 1, 2016, 7:21 pm

        Some of your “fellow officers”, mainly the entire BAFTE do not consider BB guns as firearms. As I’m sure you are aware federal laws, statutes, and regulations always trump State and local laws. This has been proven time and again. Your comments are just another example of convenient dis-regard for the law from behind the Blue Line. I guess the kid killed in Cincinnati after a 2 second roll up will be kept off the streets as well.

      • Chick January 2, 2016, 2:44 am

        That was a tragic about Tamir Rice, and the officer should not be charged. But, that is a totally different deal than defining a BB gun as a firearm. A BB gun is not a firearm, under any circumstances.

      • chick January 2, 2016, 2:48 am

        By your line of reasoning, if a person used a pistol carved out of a bar of soap, to fool someone into thinking it was real, they should be charged with armed robbery. I do agree that the use of objects to fool people into thinking the threat is worse than it is, should be charged different than plain robbery, but not armed robbery. Example is a railroad flare being presented as a stick of dynamite.

        • 2ndamendment_supporter January 5, 2016, 5:17 pm

          They should be charged with armed robbery…period. Why on earth should society allow a crook to threaten great bodily harm or death? The victim doesn’t know the difference.

      • Don January 2, 2016, 10:39 am

        By this reasoning, if I point my finger inside my jacket pocket like a gun (and I’m a convicted felon) I go back to jail for armed robbery?

        • 2ndamendment_supporter January 5, 2016, 5:19 pm

          Here in WI that is the case. So the best advice I can offer is that you do not try it.

        • Dittohd January 25, 2016, 11:28 pm

          Yes you should be charged with armed robbery. The person being robbed must assume the robber has a weapon and if they shoot the robber, they should not be charged for defending themselves. This is stupid thinking. The robber intends to make someone thing they are armed with the bar of soap or finger in their pocket. You get shot and die. Tough luck for you. Don’t pull that crap again (in the next life) Work for what you want!

      • Don January 2, 2016, 7:44 pm

        If the state of Minnesota wants to rewrite the law to say that convicted felons cannot possess BB guns they should do so. Instead they take the easy way out and torture the definition of firearm into oblivion to suit their needs.

        • Luke June 4, 2018, 12:39 pm

          You watch. Minnesota will ‘try’ to go the California route pretty soon. Especially if the dimwits win in 2018 again. This state is not far from the same liberal mindset that ruined the west coast.

  • Chief January 1, 2016, 6:15 pm

    Wow . I hope if I have to throw down against a criminal they are carrying a bb gun .:) ΜΟΛΩΝ ΛΑΒΕ

  • Jackpine January 1, 2016, 6:08 pm

    I live in MN. It can be embarrassing.

    The article did state that the above interpretation is for convicted felons. My brother has a friend (felony drug) that was put away for 8 years because the police found a BB gun in his rented garage. He had no knowledge of it.

    This type of law is overkill, which is typical for this state. Look who our senators are.

  • Xray January 1, 2016, 5:04 pm

    If there is no fire it can’t be a firearm.

  • RYPJR January 1, 2016, 4:21 pm

    Next thing you know straws will be long guns and spitballs will be ammunition.

  • Irondoor January 1, 2016, 2:24 pm

    I own a scope-sighted air rifle that has a muzzle velocity of more than 1,000 fps. I guarantee you that it is a deadly weapon at realtively close range. If this thug puts that Walther in your face are you going to laugh at him? Hell no, you are going to give him whatever he wants unless you have a better idea.

    • Tyler January 2, 2016, 12:47 am

      Yes, I am going to laugh at him. Staring down the muzzle is an incredibly good angle to see the it is just a bb gun. A .17 projectile moving at three hundred and fifty feet per second will not kill you. At that point, I laugh, swat the pistol aside and either stab him to death or shoot him with my actual firearm.

  • WJ January 1, 2016, 11:20 am

    Glad I don’t live in Minnesota.Sounds like courts there are CRAZY!

  • CJ January 1, 2016, 8:31 am

    Does this mean that in Minnesota, you have to have a background check to buy a Red Ryder?

    • MH January 1, 2016, 1:25 pm

      No, you don’t.

    • TJ January 2, 2016, 1:09 pm

      Sheeeeeeezus man! Don’t give any ideas!

    • Luke June 4, 2018, 1:55 pm

      Not yet. But, our senators and representatives here have traditionally been bat shit crazy for a long time. MN harbors the largest population of Somali Muslims in the United States thanks to these assholes. If there’s ever a change in administration here there will likely be bombs going off in Mall of America. (Surprised there hasn’t been already.)

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