What Constitutes “Using” a Gun and Why Does It Matter?


          Federal law states that:

[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person may be prosecuted in[federal court], uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime –

(i) be sentenced to a term of imprisonment of not less than 5
years;

(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.

          Because of the enhanced penalties that exist for using a firearm, it is obviously very important to know what the word “uses” means in the context of this particular law.  However, the statute itself does not define this word, so we have to look elsewhere for guidance. 

          As it so happens, the United States Supreme Court has discussed the meaning of the word “uses” in the context of this particular law on at least three different occasions.

          In the first case, Smith v. United States, Mr. Smith offered to trade a gun to an undercover police officer in exchange for cocaine and was subsequently indicted in federal court for several firearm and drug-trafficking crimes.  On appeal, Mr. Smith argued that “using” a firearm means actually using it as a weapon and not merely bartering with it.

         The Supreme Court rejected this argument stating that:

The firearm’s presence in this case was not the product of happenstance.  On the contrary, far more than in the ordinary case in which the gun merely facilitates the offense by providing a means of protection or intimidation, here the gun was an integral part of the transaction.  Without it, the deal would not have been possible.  The undercover officer posing as a pawnshop dealer expressly told Smith that he was not in the narcotics business and that he did not get involved with drugs.  For a semiautomatic weapon, however, he was willing to see if he could track down some cocaine.

          The second case in which the Supreme Court dealt with the definition of “uses” was Bailey v. United States.  In that case, two individuals named Bailey and Robinson were each convicted of violating federal drug laws as well as the statute that was quoted at the beginning of this article. 

          In Bailey’s case, the police found a loaded pistol inside a bag in his locked car trunk after he had been arrested and while his car was being searched.  In Robinson’s case, an unloaded, holstered gun was found locked in a trunk in her bedroom closet after she had been arrested on several drug-related offenses.  There was no evidence that either Bailey or Robinson actively used the guns in any way.

          On appeal, the Supreme Court ruled in favor of both Bailey and Robinson stating that using a firearm means actively employing it in connection with a crime of violence or drug-trafficking crime.  It is not enough for a prosecutor to prove merely that a gun was located close to drugs or to a defendant.  Because neither Bailey nor Robinson actively employed guns in either of their cases, the Supreme Court reversed their convictions.

          The third case in which the Supreme Court dealt with the definition of “uses” was Watson v. United States.  Unlike the Smith case where the defendant offered to trade an automatic weapon to an undercover officer in exchange for drugs, Mr. Watson did just the opposite:  he offered to trade drugs in exchange for a gun.  That being the case, it was actually the officer who used the gun during the transaction and not Watson.  Accordingly, the Supreme Court reversed Mr. Watson’s conviction.

          If you have been charged in federal court with using a firearm in connection with a crime of violence or a drug-trafficking crime, you should look carefully at how you are alleged to have used that firearm.  Is the prosecuting alleging that you actively employed it or that it was merely present at or near the crime scene?  That distinction could make all the difference in your particular case.