In Nebraska, the law takes a stern stance on the use and possession of deadly weapons such as handguns, knives, or brass knuckles during the commission of felonies and certain misdemeanors. Possession of these “deadly items” can result in severely increased penalties depending on the original crime.
Omaha Lawyers for Possession of a Deadly Weapon
If you have been charged with possession of a deadly weapon during a crime, you are facing serious charges beyond what you would normally have.
Contact an attorney today for a free consultation by filling out our online form or calling our office at (402) 865-0501.
Our firm proudly serves the communities of Omaha in Douglas County, Lincoln in Lancaster County, Papillion in Sarpy County, and across the neighboring counties of Dodge, Cass, Washington, Saunders, and throughout Eastern Nebraska.
- Nebraska Law on Possessing a Gun During a Crime
- Penalties
- Common Defenses
- Role of a Gun Charge Lawyer
- Frequently Asked Questions
- Additional Resources
Nebraska Law on Possessing a Gun During a Crime
Nebraska Revised Statute 28-1205 addresses the use and possession of deadly weapons during the commission of certain crimes. The law defines actions involving deadly weapons that are considered criminal offenses.
- Using a Deadly Weapon During a Felony: Using a deadly weapon to commit any felony is illegal. A deadly weapon includes firearms, knives, brass or iron knuckles, and any item that can cause serious harm. If a weapon is discharged or displayed during or after the felony, it qualifies under this law. Even if the weapon was not actively used, its mere presence qualifies.
- Possessing a Deadly Weapon During a Felony: Possession of a deadly weapon during a felony (e.g., assault) is also illegal. This includes constructive possession, meaning the weapon does not have to be physically on the defendant but within an area they control.
- Carrying a Firearm During a Misdemeanor: Nebraska law also prohibits carrying a firearm or a destructive device during dangerous misdemeanors, such as stalking, violating protection orders, domestic assault, shoplifting, and more. The presence of a firearm or deadly weapon during any of these misdemeanors can result in additional charges.
Penalties
| Offense | Penalty |
|---|---|
| Using a firearm to commit a felony | Class IC felony: 5 to 50 years in prison |
| Using a deadly weapon (not a firearm) to commit a felony | Class II felony: 1 to 50 years in prison |
| Possession of a firearm during the commission of a felony | Class II felony: 1 to 50 years in prison |
| Possession of a deadly weapon (not a firearm) during the commission of a felony | Class III felony: up to 4 years in prison, 9 to 24 months of post-release supervision, and/or a fine up to $25,000 |
| Carrying a firearm or destructive device during the commission of a dangerous misdemeanor (1st or 2nd offense) | Class I misdemeanor: up to 1 year in jail and/or a fine up to $1,000 |
| Carrying a firearm or destructive device during the commission of a dangerous misdemeanor (3rd or subsequent offense) | Class IV felony: 0 to 2 years in prison, 9 to 12 months of post-release supervision, and/or a fine up to $10,000 |
Penalties are distinct from underlying crimes and must be served consecutively to any other sentences imposed.
Common Defenses
- Challenging Possession: A defense may be raised if the prosecution cannot prove constructive or actual possession. If the weapon was not physically on the defendant or not within their control, this could weaken the case.
- Weapon Definition: A defense could argue that the item in question does not qualify as a deadly weapon under Nebraska law. For instance, if the object was not capable of causing serious injury, it may not meet the legal definition of a deadly weapon.
- Intent: The law requires intent to use or possess the weapon during the commission of a felony. If the defendant had the weapon for a lawful purpose, such as self-defense, this can be used as a defense.
- Mistaken Identity: If there is a question of whether the defendant was the one in possession or use of the weapon, evidence such as an alibi or testimony can be presented to challenge the prosecution’s case.
- Procedural Errors: If the defendant’s rights were violated during the investigation, such as through an unlawful search and seizure, their lawyer may file a motion to suppress evidence.
- Lack of Knowledge: The defendant may claim they were unaware of the presence of the weapon. If they were in a situation where the weapon belonged to someone else or was placed unknowingly in their vicinity, this could serve as a valid defense.
- Coercion or Duress: The defendant may argue that they possessed the weapon under threat or coercion from another individual. This defense could mitigate or negate criminal responsibility if proven.
- Entrapment: If the defendant was induced or coerced into committing the crime by law enforcement, entrapment could be used as a defense.
Role of a Gun Charge Lawyer
- Explain Charges and Penalties: Your lawyer can explain the charges and penalties you’re facing, helping you fully understand the seriousness of the case.
- Investigate the Case: The lawyer will gather evidence, review police reports, interview witnesses, and scrutinize any physical evidence to identify weaknesses in the prosecution’s case.
- Advise on Legal Rights and Options: They will guide you through your legal rights and possible options, including whether to negotiate a plea or proceed to trial.
- File Motions: The lawyer may file motions to suppress unlawfully obtained evidence, potentially leading to reduced or dismissed charges.
- Advocate in Court: During court proceedings, your lawyer will present your defense, cross-examine witnesses, and fight for the best possible outcome.
Frequently Asked Questions
- What is Nebraska’s law on possessing a gun during a crime? Nebraska Revised Statute 28-1205 addresses the use and possession of deadly weapons during certain crimes.
- What qualifies as a deadly weapon under Nebraska law? Deadly weapons include firearms, knives, brass knuckles, and other items capable of causing serious harm.
- Can I be charged for just possessing a weapon during a crime? Yes, possession of a deadly weapon, even without using it, can lead to charges during a felony or misdemeanor.
- What are the penalties for using a firearm during a felony? Using a firearm during a felony is a Class IC felony punishable by 5 to 50 years in prison.
- What defenses are possible in deadly weapon cases? Possible defenses include lack of possession, mistaken identity, lawful purpose, or procedural violations such as unlawful searches.
- Does the intent to use the weapon affect the charges? Yes, intent is crucial; the prosecution must prove intent to use the weapon during the commission of a felony.
- What role does a lawyer play in these cases? A lawyer investigates, builds defenses, advises on rights, negotiates pleas, and represents the defendant in court.
Additional Resources
- Nebraska Firearm Laws: This resource covers state firearm laws, including penalties for carrying or using firearms during crimes.
- Firearms Information: The Nebraska Crime Commission offers detailed information about firearm regulations, qualifications, and standards for law enforcement officers and citizens.
- Federal Firearm Offenses: The Office of the General Counsel provides insight into federal firearm laws, including prohibited persons and penalties for the unlawful possession, transportation, or receipt of firearms.
- Lincoln Nebraska General Felony Division: Lancaster County explains the role of the General Felony Division in prosecuting firearm offenses and other serious crimes, coordinating efforts with law enforcement.
Hire an Attorney for Unlawful Discharge of a Firearm in Omaha Nebraska
The skilled team at Liberty Law Group is ready to build your defense against all firearm crimes, including the unlawful discharge of a firearm.
Contact an attorney today for a free consultation by filling out our online form or calling our office at (402) 865-0501.
Our firm proudly serves the communities of Omaha in Douglas County, Lincoln in Lancaster County, Papillion in Sarpy County, and across the neighboring counties of Dodge, Cass, Washington, Saunders, and throughout Eastern Nebraska.
We also represent those charged in Iowa, including the communities of Council Bluffs in Pottawattamie County, Iowa, and surrounding areas.
