Neb. Rev. Stat. » Chapter 28
Nebraska Revised Statutes

Neb. Rev. Stat. § 28-1205 (2026)

Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; carrying a firearm or destructive device during the commission of a dangerous misdemeanor; penalty; separate and distinct offense; proof of possession

✓ current as of July 2026
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(1)(a) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.

(b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.

(c) Use of a deadly weapon, which is a firearm, to commit a felony is a Class IC felony.

(2)(a) Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.

(b) Possession of a deadly weapon, other than a firearm, during the commission of a felony is a Class III felony.

(c) Possession of a deadly weapon, which is a firearm, during the commission of a felony is a Class II felony.

(3)(a) Any person who carries a firearm or a destructive device during the commission of a dangerous misdemeanor commits the offense of carrying a firearm or destructive device during the commission of a dangerous misdemeanor.

(b) A violation of this subsection is a:

(i) Class I misdemeanor for a first or second offense; and

(ii) A Class IV felony for any third or subsequent offense.

(4) A violation of this section shall be treated as a separate and distinct offense from the underlying crimes being committed, and a sentence imposed under this section shall be consecutive to any other sentence imposed.

(5) Possession of a deadly weapon may be proved through evidence demonstrating either actual or constructive possession of a firearm, a knife, brass or iron knuckles, or a destructive device during, immediately prior to, or immediately after the commission of a felony.

(6) For purposes of this section:

(a) Dangerous misdemeanor means a misdemeanor violation of any of the following offenses:

(i) Knowing violation of any protection order issued under the Protection Orders Act;

(ii) Domestic assault under section 28-323;

(iii) Assault of an unborn child in the third degree under section 28-399;

(iv) Theft by shoplifting under section 28-511.01;

(v) Unauthorized use of a propelled vehicle under section 28-516;

(vi) Criminal mischief under section 28-519 if such violation arises from an incident involving the commission of a misdemeanor crime of domestic violence;

(vii) Resisting arrest under section 28-904;

(viii) Operating a motor vehicle or vessel to avoid arrest under section 28-905;

(ix) Obstructing a peace officer under section 28-906; or

(x) Any attempt under section 28-201 to commit an offense described in subdivisions (6)(a)(i) through (ix) of this section;

(b) Destructive device has the same meaning as in section 28-1213;

(c) Misdemeanor crime of domestic violence has the same meaning as in section 28-1206; and

(d) Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony or communication to another indicating the presence of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony, regardless of whether such firearm, knife, brass or iron knuckles, deadly weapon, or destructive device was discharged, actively employed, or displayed.

Notes of Decisions
Cited in 340 cases (87 in the last 5 years), 1981–2026 · leading case: State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017).
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State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017). · cites it 16× “01(1) (Reissue 2016); count II, use of a weapon to commit a felony under Neb. Rev. Stat. § 28-1205 (1) (Reissue 2016); and count III, misdemeanor negligent child abuse under Neb.”
State v. Garza, 592 N.W.2d 485 (Neb. 1999). · cites it 35× “We conclude that to sustain a conviction for “use” of a weapon under Neb. Rev. Stat. § 28-1205 (Reissue 1995), the State must show that a defendant actively employed the weapon for the purpose of committing the predicate felony.”
State v. Ring, 447 N.W.2d 908 (Neb. 1989). · cites it 26× “§ 28-306 (Reissue 1985), and of using a motor vehicle as a deadly weapon in the commission of the homicide, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1985). His five assignments of error may be summarized as challenging (1) the district court's failure to dismiss the use…”
State v. Morton, 29 Neb. Ct. App. 624 (Neb. Ct. App. 2021). · cites it 20× “Under Neb. Rev. Stat. § 28-1205 (Reissue 2016), when a felony which serves as the basis of the weapon charge is an unintentional crime, the accused cannot be convicted of the weapon charge.”
State v. Iromuanya, 719 N.W.2d 263 (Neb. 2006). · cites it 14× “Neb. Rev. Stat. § 28-1205 (1) (Reissue 1995).”
State v. Trevino, 432 N.W.2d 503 (Neb. 1988). · cites it 24× “Section 28-304, defining second degree murder, § 28-201, defining the crime of attempt, and § 28-1205, defining the crime of use of a firearm to commit a felony, are quoted above and hence need not be set forth again.”
State v. Decker, 622 N.W.2d 903 (Neb. 2001). · cites it 12× “Decker maintains that Neb. Rev. Stat. § 28-1205 (Reissue 1995) does not provide that each weapon used or possessed during the commission of a single felony is a separate crime.”
State v. Hernandez, 299 Neb. 896 (Neb. 2018). · cites it 4× “2 See Neb. Rev. Stat. § 28-1205 (1)(c) (Reissue 2016).”
State v. McCurry, 296 Neb. 40 (Neb. 2017). · cites it 9× “Neb. Rev. Stat. § 28-1205 (3) (Reissue 2016) man- dates that a sentence for the use of a deadly weapon in the commission of a felony be served consecutively to any other sentence imposed and concurrent with no other sentence.”
State v. Briggs, 303 Neb. 352 (Neb. 2019). · cites it 3× “Here, Briggs argues that the district court should have given him a new trial because he did not commit an intentional felony that would support his conviction for use of a deadly weapon to commit a felony.”
State v. Warlick, 308 Neb. 656 (Neb. 2021). · cites it 10× “§§ 77-4302 and 77-4309 (Reissue 2018); (4) possession of a firearm during the com- mission of a felony, in violation of Neb. Rev. Stat. § 28-1205 (Reissue 2016); (5) possession of a deadly weapon by a pro- hibited person, in violation of Neb.”
State v. Banks, 771 N.W.2d 75 (Neb. 2009). · cites it 8× “The original information filed by the State alleged that Banks used "a knife or any other deadly weapon" to commit a felony.”
Show all 340 citing cases →
— Neb. Rev. Stat. § 28-1205(1) — 34 cases
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017). “01(1) (Reissue 2016); count II, use of a weapon to commit a felony under Neb. Rev. Stat. § 28-1205 (1) (Reissue 2016); and count III, misdemeanor negligent child abuse under Neb.”
State v. Briggs, 303 Neb. 352 (Neb. 2019). “Here, Briggs argues that the district court should have given him a new trial because he did not commit an intentional felony that would support his conviction for use of a deadly weapon to commit a felony.”
State v. Chairez, 302 Neb. 731 (Neb. 2019).
State v. Sepulveda, 775 N.W.2d 40 (Neb. 2009).
State v. Leonor, 638 N.W.2d 798 (Neb. 2002).
— Neb. Rev. Stat. § 28-1205(1)(a) — 18 cases
State v. Morton, 29 Neb. Ct. App. 624 (Neb. Ct. App. 2021). “Under Neb. Rev. Stat. § 28-1205 (Reissue 2016), when a felony which serves as the basis of the weapon charge is an unintentional crime, the accused cannot be convicted of the weapon charge.”
State v. Lorello, 991 N.W.2d 11 (Neb. 2023).
State v. Davis, 969 N.W.2d 861 (Neb. 2022).
State v. Johnson, 979 N.W.2d 123 (Neb. Ct. App. 2022).
State v. Wright, 33 Neb. Ct. App. 929 (Neb. Ct. App. 2026).
— Neb. Rev. Stat. § 28-1205(1)(a)(b) — 1 case
State v. Buettner (Neb. Ct. App. 2024).
— Neb. Rev. Stat. § 28-1205(1)(b) — 5 cases
State v. Kidder, 299 Neb. 232 (Neb. 2018).
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017). “01(1) (Reissue 2016); count II, use of a weapon to commit a felony under Neb. Rev. Stat. § 28-1205 (1) (Reissue 2016); and count III, misdemeanor negligent child abuse under Neb.”
State v. Jacob (Neb. Ct. App. 2026).
State v. Kidder, 299 Neb. 232 (Neb. 2018).
State v. Dean (Neb. Ct. App. 2025).
— Neb. Rev. Stat. § 28-1205(1)(c) — 11 cases
State v. Berney, 288 Neb. 377 (Neb. 2014).
State v. Jackson (Neb. Ct. App. 2018).
State v. Jones (Neb. 2016).
State v. Bradley (Neb. Ct. App. 2018).
State v. Wells (Neb. Ct. App. 2018).
— Neb. Rev. Stat. § 28-1205(2) — 5 cases
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017). “01(1) (Reissue 2016); count II, use of a weapon to commit a felony under Neb. Rev. Stat. § 28-1205 (1) (Reissue 2016); and count III, misdemeanor negligent child abuse under Neb.”
State v. McCurry, 296 Neb. 40 (Neb. 2017). “Neb. Rev. Stat. § 28-1205 (3) (Reissue 2016) man- dates that a sentence for the use of a deadly weapon in the commission of a felony be served consecutively to any other sentence imposed and concurrent with no other sentence.”
State v. Banks, 771 N.W.2d 75 (Neb. 2009). “The original information filed by the State alleged that Banks used "a knife or any other deadly weapon" to commit a felony.”
State v. Reynolds, 457 N.W.2d 405 (Neb. 1990).
State v. Dixon, 482 N.W.2d 573 (Neb. 1992).
— Neb. Rev. Stat. § 28-1205(2)(a) — 3 cases
State v. Decker, 622 N.W.2d 903 (Neb. 2001). “Decker maintains that Neb. Rev. Stat. § 28-1205 (Reissue 1995) does not provide that each weapon used or possessed during the commission of a single felony is a separate crime.”
State v. Morton, 29 Neb. Ct. App. 624 (Neb. Ct. App. 2021). “Under Neb. Rev. Stat. § 28-1205 (Reissue 2016), when a felony which serves as the basis of the weapon charge is an unintentional crime, the accused cannot be convicted of the weapon charge.”
State v. Elliott (Neb. Ct. App. 2014).
— Neb. Rev. Stat. § 28-1205(2)(b) — 5 cases
State v. Iromuanya, 719 N.W.2d 263 (Neb. 2006). “Neb. Rev. Stat. § 28-1205 (1) (Reissue 1995).”
State v. Decker, 622 N.W.2d 903 (Neb. 2001). “Decker maintains that Neb. Rev. Stat. § 28-1205 (Reissue 1995) does not provide that each weapon used or possessed during the commission of a single felony is a separate crime.”
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017). “01(1) (Reissue 2016); count II, use of a weapon to commit a felony under Neb. Rev. Stat. § 28-1205 (1) (Reissue 2016); and count III, misdemeanor negligent child abuse under Neb.”
State v. Moore, 743 N.W.2d 375 (Neb. 2008).
State v. Tucker, 764 N.W.2d 137 (Neb. Ct. App. 2009).
— Neb. Rev. Stat. § 28-1205(2)(c) — 4 cases
State v. Morton, 29 Neb. Ct. App. 624 (Neb. Ct. App. 2021). “Under Neb. Rev. Stat. § 28-1205 (Reissue 2016), when a felony which serves as the basis of the weapon charge is an unintentional crime, the accused cannot be convicted of the weapon charge.”
State v. Wells, 28 Neb. Ct. App. 118 (Neb. Ct. App. 2020).
State v. Partee (Neb. Ct. App. 2024).
State v. Richard (Neb. Ct. App. 2022).
— Neb. Rev. Stat. § 28-1205(3) — 63 cases
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017). “01(1) (Reissue 2016); count II, use of a weapon to commit a felony under Neb. Rev. Stat. § 28-1205 (1) (Reissue 2016); and count III, misdemeanor negligent child abuse under Neb.”
State v. Trevino, 432 N.W.2d 503 (Neb. 1988). “Section 28-304, defining second degree murder, § 28-201, defining the crime of attempt, and § 28-1205, defining the crime of use of a firearm to commit a felony, are quoted above and hence need not be set forth again.”
State v. Iromuanya, 719 N.W.2d 263 (Neb. 2006). “Neb. Rev. Stat. § 28-1205 (1) (Reissue 1995).”
State v. McCurry, 296 Neb. 40 (Neb. 2017). “Neb. Rev. Stat. § 28-1205 (3) (Reissue 2016) man- dates that a sentence for the use of a deadly weapon in the commission of a felony be served consecutively to any other sentence imposed and concurrent with no other sentence.”
State v. Schnell, 757 N.W.2d 732 (Neb. Ct. App. 2008).
— Neb. Rev. Stat. § 28-1205(4) — 6 cases
State v. Wright, 33 Neb. Ct. App. 929 (Neb. Ct. App. 2026).
State v. Warlick, 308 Neb. 656 (Neb. 2021).
State v. Hunts Horse (Neb. Ct. App. 2025).
State v. Marsh (Neb. Ct. App. 2024).
State v. Wagner (Neb. Ct. App. 2025).
— Neb. Rev. Stat. § 28-1205(5) — 1 case
State v. Collins (Neb. Ct. App. 2026).
— Neb. Rev. Stat. § 28-1205(5)(b) — 1 case
State v. Johnson, 979 N.W.2d 123 (Neb. Ct. App. 2022).
— Neb. Rev. Stat. § 28-1205(6)(d) — 1 case
State v. McKinney (Neb. 2026).
— Neb. Rev. Stat. § 28-1205(a) — 1 case
State v. Sheldon (Neb. Ct. App. 2014).
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