CR 4-204: Firearm Use in a Crime of Violence

1. Definition and Elements of the Crime

Maryland is known for having some of the harshest gun laws in the country, and part of the reason for this reputation is the frequent charging of crimes that carry mandatory prison sentences. One of these crimes is use of a firearm in a crime of violence or in a felony under Maryland Criminal Law section 4-204. There are two main elements of this offense, which means the State must prove beyond a reasonable doubt that that the defendant committed a felony or a crime of violence, and that the defendant used a firearm in the commission of that crime. The definition of a firearm under this statute includes handguns, rifles and shotguns. It does not matter for this offense whether the gun was loaded or unloaded. Use of a firearm includes brandishing, displaying, striking, firing or attempting fire, but basically any type of act where the gun is used to create fear is included. Mere possession of a firearm at or near the crime does not constitute use. In most of these cases the defendant is charged with first degree assault and second degree assault, but other offenses such as robbery, attempted murder and carjacking can also charged. While the statute includes all felony offenses it would be rare for a defendant to be accused of using a gun in a crime without facing assault charges.

2. Examples

If a defendant is accused of taking part in a road rage incident and is alleged to have pointed a firearm at another driver he or she will be charged with assault and use of a firearm in a crime of violence. In realty, a person can be charged with assault and use of a firearm in a crime for simply showing the gun to another person in a threatening manner. This could include a verbal argument where a person pulls up his or her shirt to reveal a firearm or even exposing a portion of the gun in a threatening manner. More obvious situations where this crime is used include firing a gun in the direction of another person with the intent to frighten or committing an armed offense such as robbery or carjacking.

3. Related Offenses

In addition to facing charges for a crime of violence such as assault, defendants in this type of case will also face additional counts for wearing or carrying a handgun under Maryland Criminal Law 4-203. If the gun was loaded at the time of the offense the defendant will be charged with loaded handgun on person and if the defendant was driving or drove to or from the location of the incident, he or she will face charges for transporting a handgun. In some cases, there may not be sufficient evidence that the defendant committed the violent crime or actually used the handgun. In this scenario it would then be up to the jury or judge to decide if there was sufficient evidence that the defendant possessed a firearm and did not have a permit to do so.

4. Defenses

In any trial for using a firearm in a crime of violence a good defense will always start by attacking the State’s evidence that the defendant committed the underlying act. Defense strategies may include going after the State’s ability to identify the defendant as the person who committed the offense or arguing that the offense never happened. These defenses rely on a lawyer’s ability to establish that the State’s witnesses (police officers and/or victims) are biased. Bias in identifying a defendant often comes down to a desire to want to solve the crime and arrest the person responsible. Other biases may include extreme personal dislike of the defendant, which would influence a witness to lie and falsely accuse the defendant.

5. Penalties

Maryland Criminal Law 4-204 is still considered a misdemeanor, but it may be reclassified as a felony during a future legislative session. Despite its misdemeanor status, this crime carries up to 20 years in prison with the first 5 years being mandatory. A person convicted of this offense is not eligible for parole and cannot be granted probation before judgment to circumvent the mandatory 5-year sentence.

6. Criminal Defense for Use of a Firearm in a Crime

The State will often use CR 4-204 as leverage in order to convince a defendant to take a plea, but a skilled criminal defense lawyer does not back down from prosecutors who use this offense too often when the facts do not warrant it. If you or a loved one has been charged with using a firearm in a crime of violence contact Maryland gun crime lawyer Benjamin Herbst anytime for a free consultation. Benjamin has won numerous jury trials where his clients have been facing decades in prison, including an acquittal in a Prince George’s County charge for use of a firearm in a crime of violence where he successfully argued that the victim fabricated his entire testimony. Benjamin is available anytime at 410-207-2598 to discuss your case.