Simple bank robbery carries a maximum sentence of twenty years, but armed bank robbery has an enhanced maximum of twenty-five. Should a robbery be considered armed, though, when the robber carries an unloaded weapon?
It turns out that the armed bank robbery statute, 18 U.S.C. § 2113(d), can be satisfied in either of two different ways. First, a robber qualifies for increased punishment by committing an assault. As the Seventh Circuit indicated many years ago in United States v. Smith, 103 F.3d 600 (7th Cir. 1996), the assault prong of the statute is satisfied when a teller has a reasonable fear of imminent bodily injury. Brandishing a gun — loaded or unloaded — seems almost certain to create such a fear.
The second prong, though, raises a closer question.
Under this prong, a robbery qualifies as armed if the robber “puts in jeopardy the life of any person by the use of a dangerous weapon or device.” This prong turns, not on the teller’s belief that his or her life is in jeopardy, but on the objective reality of the danger. And the danger is surely far less when a robber carries an unloaded than a loaded weapon.
Because of the availability of the assault prong, it would seem to be academic whether carrying an unloaded weapon triggers the in-jeopardy prong. But, for reasons not clear to me, prosecutors in United States v. Simmons (No. 08-2207) charged the defendant bank robber only under the in-jeopardy prong. His conviction and subsequent appeal thus presented the Seventh Circuit with an opportunity to address whether carrying an unloaded weapon puts a teller’s life in jeopardy. The First and Ninth Circuits had previously answered in the affirmative a closely related question (whether carrying a fake gun puts a life in jeopardy).
The Seventh Circuit (per Judge Tinder) reached the same conclusion. Although the unloaded weapon was obviously of little direct threat to anyone, jeopardy was nonetheless established by the “potential violent reaction of the victim or law enforcement” to the apparent (but not actual) threat posed by the weapon.
I find it hard to quarrel with the result, but the case does illustrate a “missing category” problem in the bank robbery statute. Although it is more dangerous (and thus more blameworthy and more suitable for enhanced punishment) for a robber to carry an unloaded gun than it is for a robber to leave his gun at home, it also surely more dangerous for a robber to carry a loaded than an unloaded gun. An important distinction in offense severity seems lost without an intermediate offense category for carrying an unloaded (or fake) weapon. Fortunately, a sentencing judge may exercise his or her discretion to make the appropriate distinctions.