Ark. Code Ann. » Title 5 Chapter 73
Arkansas Code Annotated

Ark. Code Ann. § 5-73-104 (2020)

Criminal use of prohibited weapons

✓ Arkansas Code release r76: Acts through about 2020 (2021-2025 sessions missing)
Find cases: SyfertCases citing this section JustiaArk. Code CornellLII Search CasesGoogle Scholar
  1. A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he or she knowingly uses, possesses, makes, repairs, sells, or otherwise deals in any:
    1. Bomb;
    2. Metal knuckles; or
    3. Other implement for the infliction of serious physical injury or death that serves no lawful purpose.
  2. This section does not apply if the person uses, possesses, makes, repairs, sells, or otherwise deals in an item described in this section that is in compliance with the National Firearms Act, 26 U.S.C. §§ 5801 — 5861, or other applicable federal law, as either existed on January 1, 2019.
  3. It is a defense to prosecution under this section that:
    1. The defendant was a law enforcement officer, prosecuting attorney, deputy prosecuting attorney, prison guard, or member of the United States Armed Forces acting in the course and scope of his or her duty at the time he or she used or possessed the prohibited weapon; or
    2. The defendant used, possessed, made, repaired, sold, or otherwise dealt in any article enumerated in subsection (a) of this section under circumstances negating any likelihood that the weapon could be used as a weapon.
    1. Criminal use of prohibited weapons is a Class B felony if the weapon is a bomb.
    2. Criminal use of prohibited weapons is a Class A misdemeanor if the offense is possession of metal knuckles.
    3. Otherwise, criminal use of prohibited weapons is a Class D felony.

History. Acts 1975, No. 280, § 3104; A.S.A. 1947, § 41-3104; Acts 1993, No. 1189, § 7; 2005, No. 1994, § 438; 2011, No. 161, § 1; 2013, No. 539, § 1; 2019, No. 495, § 1; 2019, No. 1051, § 1.

A.C.R.C. Notes. Acts 1993, No. 1189, § 1, provided:

“(a) The General Assembly of the State of Arkansas finds that the State of Arkansas is experiencing an increase in violent crime committed by school age juveniles and the growth of street gangs made up largely of school age juveniles. The General Assembly of the State of Arkansas further finds that the number of school related crimes is increasing.

“(b) It is the intent of the General Assembly of the State of Arkansas to insure the safest possible learning environment for our students, teachers and other school employees.”

Pursuant to § 1-2-207(b), this section is set out as amended by Acts 2019, No. 1051, § 1. Acts 2019, No. 495, § 1, amended this section to read as follows:

“(a) A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he or she knowingly uses, possesses, makes, repairs, sells, or otherwise deals in any:

“(1) Bomb;

“(2) Machine gun;

“(3) Sawed-off shotgun or rifle;

“(4) Metal knuckles; or

“(5) Other implement for the infliction of serious physical injury or death that serves no lawful purpose.

“(b) It is an exception to this section that the person uses, possesses, makes, repairs, sells, or otherwise deals in an item under this section that is in compliance with the National Firearms Act, 26 U.S.C. §§ 5801 — § 5861, or other applicable federal law, as they existed on January 1, 2019.

“(c) It is a defense to prosecution under this section that:

“(1) The defendant was a law enforcement officer, prosecuting attorney, deputy prosecuting attorney, prison guard, or member of the armed forces acting in the course and scope of his or her duty at the time he or she used or possessed the prohibited weapon; or

“(2) The defendant used, possessed, made, repaired, sold, or otherwise dealt in any article enumerated in subsection (a) of this section under circumstances negating any likelihood that the weapon could be used as a weapon.

“(d)(1) Criminal use of prohibited weapons is a Class B felony if the weapon is a bomb or machine gun.

“(2) Criminal use of prohibited weapons is a Class A misdemeanor if the offense is possession of metal knuckles.

“(3) Otherwise, criminal use of prohibited weapons is a Class D felony.”

Amendments. The 2005 amendment inserted “or she” in (a) and (b); deleted “which serves no common lawful purpose” following “injury or death” in (a); inserted “or her” and “or she” in (b); and substituted “as a weapon” for “unlawfully” in (b)(2).

The 2011 amendment inserted (c)(2) and redesignated former (c)(2) as (c)(3).

The 2013 amendment inserted “prosecuting attorney, deputy prosecuting attorney” in (b)(1).

The 2019 amendment by No. 495 inserted “knowingly” in the introductory language of (a); deleted former (a)(4) and redesignated former (a)(5) and (a)(6) as (a)(4) and (a)(5); added “that serves no lawful purpose” at the end of (a)(5); inserted (b); redesignated former (b) and (c) as (c) and (d); and deleted “or firearm specially made or specially adapted for silent discharge” from the end of (d)(1).

The 2019 amendment by No. 1051 inserted “knowingly” in the introductory language of (a); deleted former (a)(2) through (a)(4); redesignated former (a)(5) and (a)(6) as (a)(2) and (a)(3); added “that serves no lawful purpose” at the end of present (a)(3); inserted (b); redesignated former (b) and (c) as (c) and (d); substituted “United States Armed Forces” for “armed forces” in (c)(1); and deleted “machine gun, or firearm specially made or specially adapted for silent discharge” from the end of (d)(1).

Case Notes

Constitutionality.

This section is not unconstitutionally vague. Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990); Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).

Construction.

This section does not create a strict liability offense; under § 5-2-203(b), if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996).

Defendant may be guilty of criminal use of a prohibited weapon under this section but innocent of possession of a defaced firearm under § 5-73-107. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).

District court misapplied the categorical approach to determining whether defendant's prior adjudication of juvenile delinquency involved a “violent felony” within the meaning of 18 U.S.C. § 924(e)(2)(B)(ii). Defendant was adjudicated a delinquent for violating this section, but it could not be determined from the record whether defendant violated this section by possessing a sawed-off rifle or some “other implement” such as a knife; while possession of a sawed-off rifle was a violent felony, it did not necessarily follow that possession of every weapon prohibited by this section would qualify. United States v. King, 598 F.3d 1043 (8th Cir. 2010).

Evidence.

Evidence held sufficient to support conviction. Shells v. State, 22 Ark. App. 62, 733 S.W.2d 743 (1987); Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).

Evidence held sufficient to support the conviction for criminal use of a prohibited weapon and aggravated assault. Robinson v. State, 49 Ark. App. 58, 896 S.W.2d 442 (1995).

In a case in which defendant was found guilty of possession of a firearm by certain persons and criminal use of prohibited weapons, the evidence before the trial court, though circumstantial, showed that defendant took a picture holding a gun on the same day that he attempted to retrieve an apparently temporarily discarded and illegally cutdown rifle. Accordingly, the appellate court found no error with the circuit court's finding that the State's circumstantial evidence proved its case nor did the appellate court find any error with the circuit court's finding that the circumstantial evidence was inconsistent with any other reasonable alternative. Caple v. State, 2019 Ark. App. 41, 569 S.W.3d 353 (2019).

Grenade.

Although the information described the device found in defendant's possession as a grenade, the prosecutor argued that the device was a bomb, and the witnesses identified the object variously as a bomb and a grenade, conviction for a violation of this section was upheld where the testimony also clearly established the object fell under the umbrella of “other implement” as that term is used in subsection (a) of this section. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996).

Proof.

The “Use of Prohibited Weapons” section does not create a strict liability offense. It requires proof of a culpable mental state. State v. Setzer, 302 Ark. 593, 791 S.W.2d 365 (1990).

Sawed-off Shotgun.

A shotgun with a barrel shortened by cutting off a portion thereof constitutes a “sawed-off shotgun.” Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990).

Possession of a sawed-off shotgun was similar, in kind as well as degree of risk posed, to the offenses listed in 18 U.S.C. § 924(e); thus, the district court did not err by finding that defendant's 1994 conviction for possession of a sawed-off shotgun was an Armed Career Criminal Act-qualifying felony. United States v. Vincent, 575 F.3d 820 (8th Cir. 2009), cert. denied, 560 U.S. 927, 130 S. Ct. 3320, 176 L. Ed. 2d 1225 (2010).

Cited: White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

Notes of Decisions
Cited in 13 cases, 1989–2019 · leading case: Yocum v. State, 925 S.W.2d 385 (Ark. 1996).
Sort: Relevance Newest Treatment
Yocum v. State, 925 S.W.2d 385 (Ark. 1996). · cites it 17× “He contends that the trial court erred in 1) not declaring Ark. Code Ann. § 5-73-104 unconstitutionally vague in it contains no definition of a “bomb”; 2) not suppressing evidence obtained when he was searched after he was arrested, without basis, for public intoxication while…”
Short v. State, 79 S.W.3d 313 (Ark. 2002). · cites it 8× “§ 5-2-204(b) & (c)(2) (Repl.1997). This court has applied section 5-2-203(b) on three occasions to require a culpable mental state, or mens rea, where the statute did not specifically prescribe one.”
United States v. Vincent, 575 F.3d 820 (8th Cir. 2009). · cites it 9× “At issue is Vincent's 1994 conviction for possession of a sawed-off shotgun under Ark.Code Ann. § 5-73-104 (1987). The Pre-Sentence Report considered this conviction a "violent felony" under 18 U.”
Bridges v. State, 938 S.W.2d 561 (Ark. 1997). · cites it 12× “Constitutionality of Ark. Code Ann. § 5-73-104 (Repl. 1993) For his first argument on appeal, Bridges asserts that his conviction of criminal use of prohibited weapon should be reversed because the statute is unconstitutionally vague.”
State v. Setzer, 791 S.W.2d 365 (Ark. 1990). · cites it 7× “The statute at issue, Ark. Code Ann. § 5-73-104 (a) (1987), provides in pertinent part: A person commits the oifense of criminal use of prohibited weapons if, except as authorized by law, he.”
Koster v. State, 286 S.W.3d 152 (Ark. 2008). · cites it 2× “With regard to the latter offense, the State alleged that Koster possessed a bomb, in violation of Ark. Code Ann. § 5-73-104 (a)(l) (Repl. 2005).”
White v. State, 765 S.W.2d 949 (Ark. 1989). · cites it 4× “Ark. Code Ann. § 5-73-104 (a) (1987). The officer testified that discovery of the shotgun was inadvertent.”
United States v. Vincent, 519 F.3d 732 (8th Cir. 2008). · cites it 2× “At issue is his prior conviction for criminal use of a prohibited weapon on November 21, 1994, under Ark.Code Ann. § 5-73-104 (1987). This conviction involved his use of a sawed-off shotgun.”
Moore v. State, 801 S.W.2d 638 (Ark. 1990). · cites it 2× “For her ninth point of error, the appellant contends that Ark. Code Ann. § 5-73-104 (1987), the statute defining the offense of criminal use of a prohibited weapon, is unconstitutionally vague.”
United States v. Elpidio G. Santos, Also Known as Indio, & Victor Alejo, Juan Garcia, 64 F.3d 41 (2d Cir. 1995). “§ 45-8-336 (maximum thirty-year sentence); Ark. Code Ann. §§ 5-73-104 , 5^4-401 (maximum twenty-year sentence).”
Caple v. State, 2019 Ark. App. 41, 569 S.W.3d 353. · cites it 2× “3d at 579-80 (citing Ark. Code Ann. § 5-73-103 (a)(1) (Repl. 2016) ).”
United States v. Joe Vincent, No. 07-1397 (8th Cir. Aug. 14, 2009). · cites it 5× “At issue is Vincent’s 1994 conviction for possession of a sawed-off shotgun under Ark. Code Ann. § 5-73-104 (1987). The Pre-Sentence Report considered this conviction a “violent felony” under 18 U.”
Show all 13 citing cases →
Ark. Code Ann. § 5-73-104(a): 5 cases
Short v. State, 79 S.W.3d 313 (Ark. 2002). “§ 5-2-204(b) & (c)(2) (Repl.1997). This court has applied section 5-2-203(b) on three occasions to require a culpable mental state, or mens rea, where the statute did not specifically prescribe one.”
United States v. Vincent, 575 F.3d 820 (8th Cir. 2009). “At issue is Vincent's 1994 conviction for possession of a sawed-off shotgun under Ark.Code Ann. § 5-73-104 (1987). The Pre-Sentence Report considered this conviction a "violent felony" under 18 U.”
White v. State, 765 S.W.2d 949 (Ark. 1989). “Ark. Code Ann. § 5-73-104 (a) (1987). The officer testified that discovery of the shotgun was inadvertent.”
Yocum v. State, 925 S.W.2d 385 (Ark. 1996). “He contends that the trial court erred in 1) not declaring Ark. Code Ann. § 5-73-104 unconstitutionally vague in it contains no definition of a “bomb”; 2) not suppressing evidence obtained when he was searched after he was arrested, without basis, for public intoxication while…”
State v. Setzer, 791 S.W.2d 365 (Ark. 1990). “The statute at issue, Ark. Code Ann. § 5-73-104 (a) (1987), provides in pertinent part: A person commits the oifense of criminal use of prohibited weapons if, except as authorized by law, he.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.