FIRING A GUN WITHIN OR FROM A VEHICLE
The nature of guns and other firearms makes them very dangerous, particularly when fired in a way that makes the target uncertain. Consequently, the Legislature has determined that firing a gun or other firearm from a vehicle should be a crime. The stereotypical “drive-by” shooting is the perfect example of this as it often involves a vehicle driving by a house or other vehicle and firing while still moving. Because of the dangerous nature of firing a gun or other firearm while in a vehicle, convictions for doing so are severe and include jail time and harsh fines.
What is the legal definition of firing a gun from a vehicle?
The laws relating to removing or changing the serial number on a weapon are governed by NRS 202.253, and 202.287.
NRS 202.253 – Definitions.
As used in NRS 202.253 to 202.369, inclusive:
- “Explosive of incendiary device” means any explosive or incendiary device material or substance that has been constructed, altered, packaged or arranged in such a manner that its ordinary use would cause destruction or injury to life or property.
- “Firearm” means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.
- “Firearm capable of being concealed upon the person” applies to and includes all firearms having a barrel less than 12 inches in length.
- “Motor vehicle” means every vehicle that is self-propelled.
NRS 202.287 – Discharging firearm within or from structure or vehicle; penalties.
- A person who is in, on or under a structure or vehicle and who maliciously or wantonly discharges or maliciously or wantonly causes to be discharged a firearm within or from the structure or vehicle:
- If the structure or vehicle is not within an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons, is guilty of a misdemeanor.
- If the structure or vehicle is within an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
- If a firearm is discharged within or out of any vehicle that is in motion or at rest and it cannot with reasonable certainty be ascertained in what county the crime was committed, the offender may be arrested and tried in any county through which the vehicle may have run on the trip during which the firearm was discharged.
- The provisions of this section do not apply to:
- A person who lawfully shoots at a game mammal or game bird pursuant to subsection 2 of NRS 503.010.
- A peace officer while engaged in the performance of his or her official duties.
- A person who discharges a firearm in a lawful manner and in the course of a lawful business, event or activity.
- As used in this section:
- “Structure” means any temporary or permanent structure, including, but not limited to, any tent, house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building.
- “Vehicle” means any motor vehicle or trailer designed for use with a motor vehicle, whether or not it is self-propelled, operated on rails or propelled by electric power obtained from overhead wires.
So, is this basically a law against drive-by shootings?
In a manner of speaking, yes. But there are a few important aspects to it, each of which must be fully understood:
- The firing of a gun, or causing a gun to be fired;
- From inside a structure of vehicle;
- Maliciously or wantonly.
Okay, isn’t the definition of firing a gun pretty obvious?
Sure, “firing a gun” is pretty obvious. Most everyone knows what it means to fire a gun or other firearm. However, the tricky aspect of NRS 202.287 is that it also applies to anyone who “causes a gun to be fired.” The purpose of this clause is to help prosecutors go after gang leaders, or other people in positions of power that can, essentially, “order” others to commit a drive-by.
The person committing the drive-by would, obviously, be guilty of “firing a gun from a vehicle,” but the person who ordered him to do so would also be guilty of “causing a gun to be fired.”
That makes sense. But if this statute is intended to stop drive-by shootings, why does it also say its illegal to fire a gun from a building?
The simple answer is that it is not intended to stop only drive-by shootings. Combined with NRS 202.285, NRS 202.287 essentially prohibits firing a gun in populated areas (except in designated areas, such as firing ranges). As a result, the definitions for “structure” and “vehicle” are extremely broad.
The definition of “Structure”, as it relates to NRS 202.287, includes:
- Any form of housing (house, apartment, condo, hotel, etc.);
- Shops or stores;
- Mills, barns, or stables;
- Tents, lean-tos or other temporary shelter; or
- Any other form of building.
The definition of “vehicle,” as it relates to NRS 202.287, includes:
- Car, truck, SUV, or van;
- Watercraft or aircraft;
- Train, locomotive, or railway car;
- Any other form of self-propelled automobile;
- Any other form of trailer or apparatus towed by another vehicle.
So, then, what does it mean by “Maliciously or wantonly”?
This means is that you must have intentionally fired the gun or caused it to be fired. It does not mean that you were attempting to injure a person, but only that you intended to fire the gun or cause the gun to be fired. If the gun was fired with the intent to hurt someone or to cause damage to property, then the intent was “malicious.” If, on the other hand, the gun was fired, not necessarily with the intent to hurt someone or cause damage, then it would be “wanton,” because there was no regard for whether the firearm could hurt anyone or damage any property.
What are the possible penalties?
The penalties for firing a gun from a structure or vehicle are dependent on whether it takes place in a place that is considered a “populated area” by statute or ordinance.
If the structure or vehicle is not in a “populated area,” then the crime is considered a misdemeanor in Nevada, carrying with it:
- Up to 6 months in jail; and/or
- Possible fines up to $1,000.
If, on the other hand, the structure or vehicle is located in a “populated area,” then the crime will charged as a category B felony, carrying with it:
- Between 2 and 15 years in a Nevada State Prison; and/or
- Possible fines up to $5,000; as well as
- The removal of rights to own, possess, or have custody or control of a gun (which can only be restored after receiving an official Nevada Pardon).
Are there any Defenses?
Yes, of course there are. Some of the possible defenses include:
- No maliciousness/wantonness – As noted above, maliciousness and wantonness require the intent to fire a gun or cause the gun to be fired. Consequently, if the gun goes off by accident, or is not intentionally fired, then there is no maliciousness or wantonness and the charges should be dropped or dismissed.
- Hunting – Obviously the broad definition of “structure” would mean that a hunter firing from a “blind” or other lean-to would be guilty of violating NRS 202.287. However, so long as the hunter is abiding by all hunting laws, and is in conformity with NRS 503.010(2), then hunters are liable under NRS 202.287.
- Self-defense – Self-defense is a common and well-known defense. It provides that a person is allowed to use reasonable and appropriate force to defend themselves or others from immediate harm or death. If your attorney can show that you were fearful of imminent harm or death, and that the firing of the gun was a reasonable and necessary form of self-defense, then the charges against you should be dropped or dismissed.
- Peace Officers – Obviously, law enforcement officers would not be held liable under NRS 202.287 when firing guns from a structure or vehicle while in the course of performing their official duties. There would be little-to-no sense in charging law enforcement officers for performing their duties, so long as they are not being negligent in doing so.
- Firing gun legally permitted – If the gun was fired in the course of a lawful business (such as a firing range) or in the course of a legal event or activity (such as a exhibition or gun show), then it would not be a violation of NRS 202.287.
- Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
What should I do if I’ve been charged with Firing a gun from a structure or vehicle?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.