What is Unlawful Discharge of Firearms?
The crime of “Unlawful Discharge of Firearms,” defined in A.R.S. § 13-3107, is a class 6 felony offense in Arizona and is often charged as a dangerous offense, which can make prison time mandatory even for a first-time offender. This is also known as “Shannon’s Law” due to a tragic incident that occurred in Phoenix when a stray bullet killed a 14-year old girl named Shannon Smith. Following public outcry at the fact that the prosecution could only charge the perpetrator with a misdemeanor, the Arizona legislature passed Shannon’s Law in 1999, making unlawful discharge of firearms a felony.
A.R.S. § 13-3107 Defined
Arizona’s unlawful discharge of firearms statute, ARS 13-3107, states the following:
- “A person who with criminal negligence discharges a firearm within or into the limits of any municipality is guilty of a class 6 felony.”
There are nine exceptions to “unlawful discharge.”
- If the gun is shot in lawful self-defense.
- When the gun is shot at a properly supervised firing range.
- If the gun is shot during hunting season, subject to the limitations on hunting set by the Arizona Game and Fish Commission.
- For the control of “nuisance wildlife” by permit from the Arizona Game and Fish Department.
- By special permit of the chief of police.
- As required by an animal control officer.
- If blanks were used when the gun was shot.
- In self-defense for an animal attack
- If the gun was shot more than one mile from any occupied structure
What Qualifies as “Criminal Negligence”?
The unlawful discharge of a firearm requires the prosecutor to prove the crime was committed with “criminal negligence.” Negligence is a type of criminal intent. Other types of intent are when a crime is committed “intentionally,” “knowingly,” or “recklessly.” Criminal negligence is a lesser standard than any of these other types of intent. This means that you do not need to intend to discharge the firearm to be guilty of unlawful discharge. It could have been a mistake.
So what exactly does criminal negligence mean? The law says that an act occurs with criminal negligence when
- “a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Example: A defendant is at his apartment on a weekend night after having had too much to drink. He decides that he wants to clean his gun, which he keeps in a safe. As he takes the gun out of the safe, he fumbles the gun when he handles it because he is drunk, and he accidentally pulls the trigger. The gun fires into a wall. Nobody is hurt, but his neighbors call the police. The defendant may be charged with unlawful discharge even though he did not intend to fire the gun, and nobody was hurt because handling a gun in an occupied apartment when you are drunk is a large deviation from gun safety standards.
What is a “Firearm” Under A.R.S. § 13-3107?
What counts as a “firearm” is usually very obvious. However, there is a specific statute in Arizona that provides a definition for what it means under Arizona’s criminal code. Specifically, ARS 13-105 defines it as “any loaded or unloaded handgun, pistol, revolver, rifle, shotgun, or other weapon that will or is designed to or may readily be converted to expel a projectile by the action of expanding gases.” This would be opposed to other weapons that fire projectiles through different means, such as a crossbow, in which the arrow flies from the bow because of the release of tension from the string.
What is a “Dangerous Offense”?
Because ARS 13-3107 always involves the use of a firearm, it may be charged as what is known in Arizona as a “dangerous” offense. A dangerous offense is defined by ARS 13-105 as a crime that involves the “discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.”
If you are charged with unlawful discharge as a felony, you might also notice the crime is listed as “dangerous.”
What does it mean for an offense to be classified as “dangerous”?
Essentially, it increases the penalties you are facing if you are convicted. If you are a first-time offender, this means that you will be facing mandatory prison time if the offense is designated as dangerous.
What Qualifies as an “Occupied Structure”?
The unlawful discharge law defines an “occupied structure” as “any building in which, at the time of the firearm’s discharged, a reasonable person from the location where a firearm is discharged would expect a person to be present.”
In deciding whether a building counts as an “occupied” structure under the law, the jury will have to look at the situation from the perspective of the person shooting the gun.
Example: A suspect shoots off a gun in the middle of the desert with no buildings around. A survey of the area shows that the discharge technically occurred just within the city limits. Because a gun was shot off in city limits, this would normally be enough to charge the suspect with unlawful discharge. However, there is an exception to the law when the gun was shot more than a mile from any occupied structure. If there was no occupied structure within a mile of the gunshot, then the defense should apply, and the suspect should not be charged with unlawful discharge.
Example: Same facts as above, but now imagine that there was an abandoned-looking shack with holes in the roof, extensive fire damage, and rotting wood next to the location the gun was shot. Whether or not this counts as an “occupied” structure depends on the perspective from the location of the person shooting the gun. Here there is a good argument that the structure is not occupied because it looks to be an old, abandoned building. Even if it later turns out that there is a homeless person sleeping in the shack at the time of the gunshot, the structure could still be considered unoccupied because it would not be apparent that anybody was in the building from the outside.
Penalties for Unlawful Discharge of Firearms
The penalties for an unlawful discharge conviction depend on two things. The first is whether you have prior felony convictions on your record, and the second is whether the offense is designated as “dangerous.”
Here is the range of potential penalties for a first-time offense:
- Non-Dangerous: Probation eligible or prison time from .33 to 2 years.
- Dangerous: Mandatory prison time from 1.5 to 3 years.
If this is a second historic prior felony and dangerous offense, the potential prison ranges are:
- Non-Dangerous: .75 to 2.75 years.
- Dangerous: 3 to 4.5 years.
If this is a third prior felony dangerous offense, the ranges increase further:
- Non-Dangerous: 1 to 3.75 years.
- Dangerous: 4.5 to 6 years.
Defenses to Unlawful Discharge of Firearms
- No Negligence: An unlawful discharge of firearms allegation requires that the state prove you acted with “criminal negligence.” If the state cannot prove beyond a reasonable doubt that your conduct gross deviation from how a reasonable person under the circumstances would act, then it cannot prove its case against you. Note that the just a minor mistake is not sufficient–the state must show a significant failure to obey safety guidelines.
- Statutory defenses: There are numerous exceptions to an unlawful discharge violation that are written into the statute. For example, you should not be charged with this crime if the gun in question was used in self-defense or if only blanks were shot from the gun. If the accident occurred on a firing range, this is also a defense. A knowledge gun crime attorney can tell whether one of these many exceptions might apply to your charges.
- Mistaken identity: Often, this crime can be charged when a gun is fired during a large gathering or party with multiple party-goers at the scene. In the excitement of the situation, witnesses to the unlawful discharge can easily get confused as to who fired the gun and may not be able to make a positive identification of the alleged shooter. The police may also conduct what a so-called “show up” identification rather than a more accurate “line-up.” A show-up occurs when the police have already identified a suspect and oftentimes already placed him in handcuffs or put him in a patrol car. The police will then take the witness to the alleged suspect under these circumstances, where it clearly indicates that the police already think he is guilty. This will influence the witness to positively identify the alleged shooter because they are predisposed to thinking that somebody the police have handcuffed committed the crime. This may result in a mistaken identity where the wrong person is arrested.
- Lack of evidence: The state always the burden of proving any crime “beyond a reasonable doubt.” In gun crime cases, we can bring challenges to the state’s evidence to prove your innocence. Fingerprint analysis or DNA analysis, gunshot residue analysis, and chemical testing of the weapon may be conducted to prove that you did not have contact with the weapon used in the shooting.
- Constitutional violations: If the government has strong evidence to prove its case, there still might be constitutional reasons to toss this evidence out so that it cannot be used at trial. This can occur if the police violated your rights, such as your right to remain silent, your Miranda rights, or your right to counsel.
How Salwin Law Group Can Help You
If you’ve been charged with unlawful discharge of firearms under ARS 13-3107, it’s important that you hire an experienced criminal defense attorney. Stewart Salwin will fight to get your charges lowered or dismissed. He is a graduate of Harvard Law School and a former felony prosecutor, and he knows how the prosecution thinks and what will convince them to get you a favorable resolution. We offer a free initial consultation. Give us a call, and we can develop a defense strategy with you today.