Why Unlawful Use of a Weapon Convictions Should Be Extremely Rare
by: Ryan • July 29, 2011 • no comments
Nothing in this post will be new to long-time readers of this website. But I thought I'd collect everything in one post for your convenience.
In most cases where UUW is the most serious accusation, the charge arises from a misunderstanding of what constitutes "use." As I've mentioned before, threatening to kick some ass does not actually constitute kicking ass. Merely threatening to use a weapon is not use of that weapon. You should ask for a jury instruction that says something like, "merely threatening to use a weapon - except in furtherance of a different, unlawful purpose - is not use of a weapon." In other words, threatening someone with a weapon to get them to submit to a kidnapping or a theft, that is use. But in that case, UUW is the least of your client's problems. See this post for a discussion and - if you follow the link - a memorandum in support of that instruction.
If your client is found guilty of UUW for use of a firearm, and any of the other charges from the same criminal episode include the gun minimum language, your client still shouldn't end up with a UUW conviction, because the guilty verdict for the UUW should merge into the charge with the gun minimum. See this post, which also has a memo attached to it.
If your client discharges a firearm in a public place, but not at anyone in particular, and he ends up with a bunch of UUW charges under sub(b), one for each person present, he may end up with a UUW conviction, but only one, because the rest should merge. This is because the victim is arguably the state, not someone who was hanging around but not a target. See this post .
