Armed Violence| Dangerous Weapon| Chicago, Illinois & Northwest suburbs

People v. Davis, Docket No. 90969, January 25, 2002 (JUSTICE McMORROW)
Conviction vacated. (pellet/BB gun not a category I or II dangerous weapon)

After analyzing the statutory scheme, the Illinois Supreme Court found
that the legislature did not intend for armed violence liability to
arise from the use of a BB gun. The conviction was vacated.

Defendant Joshua T. Davis was found guilty of armed violence (720 ILCS
5/33A-2 (West 1992)), aggravated battery (great bodily harm) (720 ILCS
5/12-4 (West 1998)), and battery (720 ILCS 5/12-3 (West 1998)), after it
was stipulated at a bench trial, in the circuit court of Henry County,
that, on July 2, 1998, defendant shot BBs from a Crossman .177-caliber
pellet/BB gun at Matthew Mulder and Cody Junior. Although Mulder
sustained only minor injuries, Junior lost his left eye. The trial court
found that the pellet/BB gun used by defendant was a category I
dangerous weapon within the meaning of the armed violence statute (720
ILCS 5/33A-1(b) (West 1992)). Accordingly, the armed violence offense
was a Class X felony for which defendant was sentenced to the minimum
term of six years' imprisonment. Defendant was also sentenced to a
concurrent jail term of 364 days on the simple battery conviction and
was ordered to pay restitution.

On appeal, a divided court upheld the convictions and sentences. 318
Ill. App. 3d 893.

In defining a category I weapon, the legislature specifically named
several weapons-pistol, revolver, rifle, shotgun, spring gun, sawed-off
shotgun, stun gun or taser, knife with a blade of at least three inches
in length, dagger, dirk, switchblade knife, and stiletto. Pellet and BB
guns are not specifically referred to in this list of weapons and,
consequently, are not per se dangerous weapons. People v. Ptak, 193 Ill.
App. 3d 782, 785 (1990) (any weapon specifically listed in the
definition is considered to be a per se dangerous weapon). However, in
addition to individually naming certain weapons, the provision also uses
two inclusive clauses-"any other firearm" and "any other deadly or
dangerous weapon or instrument of like nature."

The first clause, "any other firearm," comes in the middle of the
provision and at the end of a list of devices generally recognized as
"firearms." The lower courts found that the pellet/BB gun used by
defendant did not fit within this clause because it was not a "firearm."

In section 2-7.5 of the Criminal Code of 1961 (720 ILCS 5/2-7.5 (West
2000)), the legislature, in reference to "firearms," states:

"Except as otherwise provided in a specific Section, 'firearm' has the
meaning ascribed to it in Section 1.1 of the Firearm Owners
Identification Card Act."

The Firearm Owners Identification Card Act (430 ILCS 65/1.1 (West 2000))
defines "[f]irearm" as "any device, by whatever name known, which is
designed to expel a projectile or projectiles by the action of an
explosion, expansion of gas or escape of gas; excluding, however: (1)
any pneumatic gun, spring gun, paint ball gun or B-B gun which either
expels a single globular projectile not exceeding .18 inch in diameter
and which has a maximum muzzle velocity of less than 700 feet per second
or breakable paint balls containing washable marking colors."

At the same time, the Air Rifle Act (720 ILCS 535/0.01 (West 2000))
defines "[a]ir rifle" as "any air gun, air pistol, spring gun, spring
pistol, B-B gun, paint ball gun, pellet gun or any implement that is not
a firearm which impels a breakable paint ball containing washable
marking colors or, a pellet constructed of hard plastic, steel, lead or
other hard materials with a force that reasonably is expected to cause
bodily harm." (Emphasis added.) 720 ILCS 535/1 (West 2000).

Reading these statutes together, it is reasonable to assume that the
legislature did not view BB guns, pellet guns and paint ball guns as
"firearms" and, consequently, did not intend these devices to be
included under the clause "any other firearm" in the armed violence
provision.

A category II dangerous weapon is defined in the statute as “a bludgeon,
blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or
other dangerous weapon of like character.” 720 ILCS 5/33A–1(c) (West
1992). Again, pellet and BB guns are not specifically named in this
listing. Furthermore, although a metal pellet/BB pistol might be capable
of being used as a bludgeon, it is not typically identified as such and,
under the doctrine of ejusdem generis, cannot be interpreted to be “of
like character” to the bludgeon-type weapons included in the category II
listing.