Weapons Defense

KENTUCKY LAW ON WEAPONS OFFENSES AND DEGREES OF WEAPONS OFFENSES

Offenses relating to firearms and weapons are defined in Kentucky Revised Statutes Chapter 527. Some of the more common weapons offenses include: carrying a concealed deadly weapon, possession of a firearm by a convicted felon, and possession of a defaced firearm. Kentucky’s weapons offense statutes are very detailed, defining the offense and listing numerous exceptions and variations on these exceptions. 

The prohibition against carrying a concealed deadly weapon is outlined in KRS §527.020. Under this statute, a person is guilty of carrying a concealed weapon when he or she carries a concealed firearm or other deadly weapon on or about his or her person in violation of this section. 

The section then goes on to enumerate a list of circumstances in which carrying a concealed deadly weapon is not a violation. These exceptions include, but are not limited to, peace officers and certified court security officials when necessary for their protection in discharge of their official duties and, within certain limitations, persons carrying concealed weapons in accordance with KRS §237.109 or licensed to carry a concealed deadly weapon pursuant to KRS §237.110. Section 237.109 authorizes those (21) years old or older, and otherwise able to possess a firearm, to carry concealed firearms or other concealed deadly weapons in certain locations. 

Defacing a firearm or possessing a defaced firearm are prohibited by KRS §§ 527.030 and 527.050. Defacing a firearm might, for example, be making a saw-off shotgun. And under §527.050, a person is guilty of possessing a defaced firearm when he knowingly possesses a defaced firearm, unless he makes a report to the police or other appropriate government agency of such possession prior to arrest or authorization of a warrant by a court. 

The prohibition on possession of a firearm by a convicted felon is contained in KRS §527.040. A person is guilty of possession of a firearm by a convicted felon when he possesses, manufactures, or transports a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted, in any state or federal court and has not, for example, been granted a full pardon by the governor or by the president.

Juveniles are prohibited from possessing a handgun except under certain exceptions to this general rule, which are carved out by the statute, KRS §527.100. A person is guilty of possession of a handgun by a minor when, being under the age of (18) years, he possesses, manufactures, or transports a handgun. Exceptions include some carveouts for hunting-related activities, safety courses, and competitions. 

It is also unlawful to provide a handgun to a juvenile or permit a juvenile to possess a handgun under KRS §527.110. This prohibition is, of course, subject to the exceptions outlined in the statute above, prohibiting juveniles from possessing a handgun. A person is guilty of unlawfully providing a handgun to a juvenile or permitting a juvenile to possess a handgun when he intentionally, knowingly, or recklessly provides a handgun, with or without remuneration to any person he reasonable has reason to believe is under the age or (18) years old. 

In the alternative, and under the same statute, it is unlawful for a parent or legal guardian of a juvenile to intentionally knowingly, or reckless provide a juvenile or permit a juvenile to possess a handgun knowing that there is a substantial risk that the juvenile will use a handgun to commit a felony offense; or with knowledge that the juvenile has been convicted of a crime of violence provides a handgun to that juvenile. 

ELEMENTS OF A WEAPONS OFFENSE – OR WHAT MUST BE PROVEN TO BE CONVICTED

Weapons offenses such as possession offenses usually include, but are not necessarily limited to, as elements that must be proven: (1) actual or constructive possession, (2) of a firearm, and (3) that the firearm is (a) of the prohibited category, or (b) that it is being carried in a prohibited circumstance. 

If there the offense is one of the defacing offenses, there are other elements that must be proven, such as the fact that the gun was defaced, and that the defendant was the one to deface it or that the defendant knew when he possessed the gun that it was defaced. 

There are additional mental state elements in the juvenile handgun statutes that must be proven. These include knowledge on the part of the culpable adult who provided the handgun that the juvenile was under the age of (18), or the knowledge that the juvenile was a violent offender. 

DEFINITIONS

The definitions for weapons offenses can be found in KRS §527.010. 

A handgun means any pistol or revolver originally designed to be fired by the use of a single hand, or any other firearm originally designed to be fired by the use of a single hand. 

A firearm means any weapon which will expel a projectile by the action of an explosive. 

Deface means to remove, deface, cover, alter, or destroy the manufacturer’s serial number or any other distinguishing number or identification mark. 

Crimes of violence are listed in KRS §439.3401. These crimes include, but are not limited to, a capital offense, a Class A felony, a Class B felony involving the death of a victim or serious physical injury to a victim, human trafficking, criminal abuse in the first degree, burglary in the first degree accompanied by the commission or attempted commission of an assault or kidnapping, and robbery in the first degree. 

PENALTY FOR WEAPONS OFFENSES IN KENTUCKY 

Carrying a concealed weapon is a Class A misdemeanor and therefore carries a penalty of up to (12) months’ incarceration and/or payment of a $500 fine. However, if the defendant has been previously convicted of a felony in which a deadly weapon was possessed, used, or displayed, then carrying a concealed weapon is a Class D felony and therefore carries a penalty of between 1- and 5-years’ incarceration. 

Defacing a firearm is a Class A misdemeanor, with a penalty of up to 12 months’ incarceration and/or a fine of up to $500. Possession of a defaced firearm is also a Class A misdemeanor. 

Possession of a firearm by a convicted felon is a Class D felon, incurring a penalty of 1 to 5 years’ incarceration. However, if the firearm in question is a handgun, it is a Class C felony, carrying a penalty of 5 to 10 years’ incarceration.  

Possession of a handgun by a minor is a Class A misdemeanor for the first offense, carrying a penalty of up to 12 months’ incarceration and/or a fine of up to $500. For any subsequent offense, it is a Class D felony with a penalty of between 1- and 5-years’ incarceration. 

Providing a handgun to a juvenile or permitting a juvenile to possess a handgun is a Class D felony, punishable by between 1- and 5- years’ incarceration. 

WEAPONS OFFENSES AS SEEN THROUGH CASE LAW 

Caselaw has clarified where some of the limits are on carrying a concealed deadly weapon. For example, in Mitchell v. University of Kentucky, a state university employee was deemed authorized to keep his weapon in his parked car, even though there were restrictions in place by the university concerning possession of deadly weapons on university property. 366 S.W.3d 895 (Ky. 2012). Mosely v. Commonwealth clarified that a person does not have to move in order to carry a weapon which is on his person. 374 S.W.2d 492 (Ky. 1864). 

Other cases have interpreted concepts surround the concealed nature of the weapon. So, it is irrelevant whether the defendant intended to conceal a weapon when he is found in violation of this statute. Sykes v. Commonwealth, 550 S.W.3d 60 (Ky.App. 2018). Concealed means that the weapon cannot be readily seen by people having ordinary, common contact with the accused, but not necessarily so hidden that it would only be discovered by a person making a special investigation. Avery v. Com., 3 S.W.2d 624 (Ky. 1928). 

There are further interpretations having to do with concealment within a vehicle or within the glove compartment of a vehicle. So, for example, when a weapon is hidden within the glove compartment, it is not deemed concealed for the purposes of the concealed deadly weapon statute. Mohammad v. Com., 202 S.W.3d 589 (Ky. 2006). 

Some items are considered deadly weapons while others are not, regardless of the purpose for which they are carried. For example, a 6-inch-long butcher knife with a sharp pointed blade is a deadly weapon. Asher v. Com., 473 S.W.2d 145 (Ky. 1971). A razor blade (straight edge) is a deadly weapon. Williams v. Commonwealth, 202 S.W.2d 408 (Ky. 1947). So is a pistol, regardless of whether is unloaded and the carrier does not have any ammunition. Com. v. Harris, 344 S.W.2d 820 (Ky. 1961). However, a defective pistol, such as when the cylinder has been removed and thrown away, or a pistol with a defective plunger that is not capable of being fired, is not a deadly weapon. Jarvis v. Com., 206 S.W.2d 831 (Ky. 1947). Bowman v. Com., 217 S.W.2d 967 (Ky. 1949). 

DEFENSES 

Defenses to weapons offenses may include rebutting one of the elements that must be proven by the prosecution. For example, it would be a defense to the prohibition against carrying a concealed deadly weapon, to assert that the accused was carrying the weapon in question in conformity with one of the many exceptions to the prohibition. It would also be a defense to assert that the weapon in question was not actually deadly. 

In cases that require proof of the accused’s mental state, such as knowingly, recklessly, or wantonly, it would be a defense to defend against the charge by showing that the accused did not have the requisite mental state. It might also be a defense, for example in the case of providing a handgun to a juvenile, to refute that the accused had knowledge or reasonably should have had knowledge of the juvenile’s age, the juvenile’s status as a violent offender, or the juvenile’s intention to use the handgun in the commission of a felony. 

Each defense will depend on the circumstances off the charged offense.