Is a BB Gun a “Deadly Weapon” in Florida? A Defense Attorney Explains

What is a “deadly weapon?” The answer to this question sheds light on the kind of proof our government needs to convict a citizen of a crime. It seems like just about anything can be considered “deadly” these days, but the law requires more than a prosecutor’s opinion.

When no one is actually injured, how does the State prove an object is “deadly?” A firearm is deadly by definition (by design too…).

But what about something like a BB gun?

Charged with a “Deadly Weapon” Crime in Orlando? The State must prove every single word of that charge. Call my office for a detailed analysis of the evidence in your case—or the lack thereof. Call John Guidry: (407) 423-1117

A Real-World Example: The Case of the Threatening BB Gun

The case of M.J. v. State, 100 So.3d 1286 (Fla. 4th DCA 2012), started when a juvenile, M.J., was convicted of exhibiting a firearm or other deadly weapon in a threatening manner.

• The Admission: M.J. admitted he had a BB gun and that he displayed it in a rude and threatening way.
• The Legal Issue: The crime, under Florida Statute 790.10, requires the object to be either (1) a firearm or (2) a “deadly weapon.” A BB gun is legally not a firearm in Florida. Therefore, the entire case hinged on whether the State proved the BB gun was a “deadly weapon.”

The “Failure of Proof” Defense: The State Must Prove It’s Deadly

The legal definition of a “deadly weapon” is “one likely to produce death or great bodily injury.” It is the prosecutor’s job to present evidence to prove this.

In M.J.’s case, and in a similar case called K.C. v. State, 49 So.3d 841 (Fla. 4th DCA 2010), the prosecutor made a fatal mistake. They showed the BB gun to the jury but then presented no testimony or evidence about its capabilities. No one testified about the BB gun’s power, its velocity, or its potential to cause serious injury. The State simply assumed that the jury would see a gun-like object and conclude it was deadly.

The Result: Conviction Overturned

The appellate court overturned M.J.’s conviction. They reasoned that because the State failed to present any evidence that this specific BB gun could cause death or great bodily harm, they had failed to prove an essential element of the crime. His motion to dismiss should have been granted. If I had a dollar for every time an appeals court said that…

This “deadly weapon” analysis is critical in many cases, as it’s what enhances a misdemeanor Assault or Battery into a serious felony.

John’s Takeaways

• Under Florida law, a BB gun is not legally classified as a “firearm.”
• To be a “deadly weapon,” an object must be “likely to produce death or great bodily injury,” and the prosecutor has the burden of proving this with evidence.
• A BB gun is not automatically considered a deadly weapon. The State must present specific evidence (like testimony about its power and velocity) to prove it meets the legal definition.
• As shown in cases like M.J. v. State, if the State only shows the jury a BB gun without presenting evidence of its capabilities, a conviction for a “deadly weapon” crime can be overturned for failure of proof.
• A meticulous defense attorney will challenge the State to prove every single word of the charging document.

I have been making these exact legal arguments for my clients in Orange, Seminole, Osceola, Lake, Brevard, and Volusia County since 1993. If you’ve been charged with a crime involving a weapon, call my office. Let’s examine the evidence.

About the Author, John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.