Prosecutors, Police Want Gun Loophole Closed

Fact Finders has learned state lawmakers are expected to get an earful next January over an issue that frustrates police and prosecutors -- gun charges getting dismissed case after case because of a loophole in state law.

This is one example: in April, Omaha Police booked Larry Gaines, 22, for a number of charges after his arrest for alleged armed carjackings and robberies the same night.

But because officers didn't find the gun witnesses described pointed at them, the use of a weapon and felony possession of a firearm charges were dropped.

"I don't think a person ought to get shot to make a determination of whether it's a real gun or not," said Douglas County Attorney Don Kleine, who along with many officers who make these types of gun crime arrests, want the loophole closed in Nebraska.

In Nebraska, jury instructions say a firearm is defined as a weapon that is capable of firing a projectile that explodes.

So if police don't find the actual gun - and that often happens - or it turns out to be a fake gun, gun charges are dropped.

"If they put their hand in the pocket and go like this," said Kleine, "I'm not going to wait until I get shot to determine if it's a gun. The fact that they're intending you to believe there's a gun -- there should be enough that they used a firearm or intended whether it's a real gun or not a real gun."

So in the case of Larry Gaines which is more the rule than exception according to officers and prosecutors, the actual gun charges that could have carried eight additional years of hard time go away.

Because of that, officers say, suspected bad guys are out of prison sooner.

Kleine would like Nebraska to change the gun laws to mirror some other states so that the threat of a gun can be punished as severely as having the gun itself.

New York describes it as "displaying what appears to be a gun."

Oklahoma says "toy pistols and air guns" qualify as a firearm.

Wisconsin says something is a firearm--- if the victim perceives it to be one.

Gaines has been charged with four counts of robbery. Depositions are scheduled for September.

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