# Water pistols and the law **URL:** \ **Category:** Factual Questions\ **Created:** [October 15, 2015, 8:55am UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709 "2015-10-15T08:55:57Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [October 15, 2015, 3:10pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/21 "2015-10-15T15:10:06Z")
> [@jtur88](#): > > The stock in trade of a modern police state is a gotcha criminal code, in which the police can round up anybody they wish, and find a crime to match. **Moderator Warning** **jtur88** , you’ve been warned previously for political jabs in General Questions. This is another one. If you continue to disregard the rules of this forum, you may find your posting privileges under discussion. Colibri General Questions Moderator ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 15, 2015, 3:15pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/22 "2015-10-15T15:15:22Z")
> [@jtur88](#): > > If I say I am going to go and kill somebody, and get in my car with that stated intention, the fact of getting into my car and turning the key is a substantial step toward the commission of the crime, regardless of whether the gun I take with me is a Glock or a water pistol. Once intent to murder is established, it could be argued that the failure of the water pistol would lead to a quick look around for a more effective blunt instrument or something. In the prosecutor’s mind, intent would carry more weight than tactical acumen, in making the “attempted murder” case. What is your basis for believing that getting in your car and starting it while carrying the water pistol as your intended murder weapon qualifies as “substantial?” ---
**Author:** ![MrQwertyasd](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@MrQwertyasd](https://boards.straightdope.com/u/MrQwertyasd)\ **Post date:** [October 15, 2015, 3:45pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/23 "2015-10-15T15:45:45Z")
> [@Jimmy\_Chitwood](#): > > Re: the burnt offerings and voodoo: technically yes, you’re committing a crime, because attempt is about intent/belief – so if the person genuinely believes that they’ve set something in motion that’s going to lead in somebody’s death, that’s the guilty state of mind we’re looking for – but see above re: “inherently unlikely to result or culminate in the commission of a crime.” Not only that, but according to my copy of _Witness to Witchcraft_, people can die from evil curses. ---
**Author:** ![IDtenT\_Error](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@IDtenT\_Error](https://boards.straightdope.com/u/IDtenT_Error)\ **Post date:** [October 15, 2015, 4:13pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/24 "2015-10-15T16:13:24Z")
> [@TriPolar](#): > > You aren’t guilt of armed robbery though, or any other offence based on possession of a weapon. And as for attempted murder, should you attempt to kill someone by squirting them to death with water from a squirt gun then a diminished capacity defense would be very successful if you were prosecuted. Not even your own diminished capacity, the case will get thrown out based on the prosecutors diminished capacity. IIRC, in most jurisdictions based on English Law, the ‘armed’ part of ‘armed robbery’ is based on the perp’s _intent_, rather than whether or not his ‘weapon’ is actually believable as a threat. If he _intended_ the bank teller to take it seriously, he’s guilty of ‘armed robbery’, even if his ‘weapon’ was ridiculous, and something no bank teller would _actually_ take seriously. IANAL, so I welcome correction from actual Law-Talking-Persons. Your ‘diminished capacity defense’ point, on the other hand, certainly _would_ apply to a charge of ‘armed robbery’, if the weapon were a clownishly colored squirt-gun. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 15, 2015, 4:44pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/25 "2015-10-15T16:44:15Z")
> [@IDtenT\_Error](#): > > Your ‘diminished capacity defense’ point, on the other hand, certainly _would_ apply to a charge of ‘armed robbery’, if the weapon were a clownishly colored squirt-gun. Yes, that’s all that I’m saying. There is a certain reasonable quality that has to be applied. Even with a squirt gun a bank teller might assume that it contains some dangerous substance and not just water, but if someone just pointed their finger at you and said “Hand over the money or I’ll shoot you with my finger” it wouldn’t be reasonable to consider that to be a dangerous weapon in itself. The teller might assume they are still being threatened in some way, or if the finger was in a jacket pocket and the robber is claiming it is a gun then there’s something to charge, but not the naked finger itself was reasonably believed to be a gun. ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [October 15, 2015, 4:53pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/26 "2015-10-15T16:53:30Z")
> [@Bricker](#): > > What is your basis for believing that getting in your car and starting it while carrying the water pistol as your intended murder weapon qualifies as “substantial?” The simple fact of possession of an “intended murder weapon” while taking steps toward that goal… Originally Posted by (720 ILCS 5/8-4) (from Ch. 38, par. 8-4) Attempt. “It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” ---
**Author:** ![IDtenT\_Error](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@IDtenT\_Error](https://boards.straightdope.com/u/IDtenT_Error)\ **Post date:** [October 15, 2015, 5:21pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/27 "2015-10-15T17:21:45Z")
> [@MrQwertyasd](#): > > Now, “Give me the money” - to me that’s unquestionably a demand. > > But if you say "give me the money or I will squirt - are you making a demand, or offering a choice ? It’s the ‘or else’ that makes it an offense. It’s a case of ‘false dichotomy’. Did you offer me the choice to kick you in the 'nads? You’re offering a choice, but the only other side of the ‘choice’ that you offered is what makes it an offense. If the ‘or else’ is ‘I will squirt you with water’, then you’re fine. BUT, if the person on the receiving end of the squirt could think that it might be bleach, and will blind him/her? It’s how your threat might be perceived that’s the problem. The law doesn’t look at the ‘false dichotomy’ choices you offered, it looks at all the _other_ alternatives, and whether or not your ‘bank teller’ victim might have imagined them when you ‘offered’ that supposedly 2 sided choice, but in fact, it’s bloody multivariate, and most of them are… uhh… less than desirable. OK, my previous post about ‘intent’ was wrong… Ok, a bit off. The perp may not have bleach in there, but he intended it as a threat. Even if he only intended it as “You’ll get wet”. ---
**Author:** ![Quercus](https://avatars.discourse-cdn.com/v4/letter/q/7ab992/32.png) [@Quercus](https://boards.straightdope.com/u/Quercus)\ **Post date:** [October 15, 2015, 5:23pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/28 "2015-10-15T17:23:48Z")
> [@Bricker](#): > > What is your basis for believing that getting in your car and starting it while carrying the water pistol as your intended murder weapon qualifies as “substantial?” > [@jtur88](#): > > The simple fact of possession of an “intended murder weapon” while taking steps toward that goal… > > “It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” I think **Bricker** ’s not questioning the intent part of it; he’s raising the factual question of whether getting in the car and starting it (whether carrying a water pistol or real gun) is really a substantial step towards shooting someone. That’s something to decide on a case-by-case basis, of course, but I think it’s an uphill battle to make it clearly a yes. ---
**Author:** ![IDtenT\_Error](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@IDtenT\_Error](https://boards.straightdope.com/u/IDtenT_Error)\ **Post date:** [October 15, 2015, 5:59pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/29 "2015-10-15T17:59:34Z")
> [@jtur88](#): > > If I say I am going to go and kill somebody, and get in my car with that stated intention, the fact of getting into my car and turning the key is a substantial step toward the commission of the crime, regardless of whether the gun I take with me is a Glock or a water pistol. Once intent to murder is established, it could be argued that the failure of the water pistol would lead to a quick look around for a more effective blunt instrument or something. In the prosecutor’s mind, intent would carry more weight than tactical acumen, in making the “attempted murder” case. Yeah, Congratulations. You’re factually guilty of the crime. Can a prosecutor prove it against you? Unless he demonstrates that intent, almost certainly not. Congratulations, again. You got away with attempted murder. I’m not seeing a reason to let people like your example get away with it, just because they were stupid enough to bring a squirt-gun, instead of a real one, to the crime. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 15, 2015, 8:30pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/30 "2015-10-15T20:30:54Z")
> [@jtur88](#): > > The simple fact of possession of an “intended murder weapon” while taking steps toward that goal… > > Originally Posted by (720 ILCS 5/8-4) (from Ch. 38, par. 8-4) > Attempt. > “It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.” No, the simple fact of possession of an intended murder weapon while taking steps toward that goal is NOT sufficient. You quote an Illinois statute, so I assume you’re discussing Illinois law. I direct your attention to _People v. Smith_, 593 NE 2d 533 (Ill. 1992). In Smith, the accused armed himself with a gun, hailed a cab, used the cab to try to locate a specific jewlery store, stole the cab at gunpoint, and admitted to the police he had intended to rob the store and use the cab as a getaway car and haul the jewelry he stole in a pillowcase which he also brought along for that purpose; being stymied only by not finding the specific store he sought. I assume you’ll agree that those steps are manifestly more “substantial” than our water-gun killer merely starting his car. However, as the Illinois Supreme Court explained: > [@](#): > > Turning to the case at bar, we must determine whether “defendant, by arming himself, traveling to Waukegan, searching for the jewelry store, and driving a stolen cab that he intended to use as a getaway car” committed a substantial step. (internal citation omitted) We find that defendant’s actions did not constitute the statutorily required substantial step, and thus his conviction for attempted armed robbery must be reversed. Well? ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [October 15, 2015, 9:24pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/31 "2015-10-15T21:24:27Z")
All that and it still wasn’t _substantial_? :dubious: Did the Court say why all that wasn’t sufficiently substantial? Did the Court suggest what more would have been needed to be substantial? (Like, maybe, if the accused had done his homework and found out ahead of time where the store was located? Was it “insubstantial” because he didn’t know where the store was that he was trying to rob?) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 15, 2015, 10:24pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/32 "2015-10-15T22:24:05Z")
> [@Senegoid](#): > > All that and it still wasn’t _substantial_? :dubious: Did the Court say why all that wasn’t sufficiently substantial? Did the Court suggest what more would have been needed to be substantial? (Like, maybe, if the accused had done his homework and found out ahead of time where the store was located? Was it “insubstantial” because he didn’t know where the store was that he was trying to rob?) It isn’t a science and will differ based on jurisdiction. It cannot be “mere preparation.” Judges and justices will come out on different sides based upon the circumstances of the individual case, some leaning more towards a strict view and others being more lenient. Generally the facts must show a certain commitment to the act such that it tips the balance from thinking about it and setting up to do it versus in the process of doing it. We spent two days in first year crim law studying it, and my conclusion was that there really is no fine line. Cases are all over the place. All of the tests simply restate the original problem. ---
**Author:** ![obbn](https://avatars.discourse-cdn.com/v4/letter/o/d6d6ee/32.png) [@obbn](https://boards.straightdope.com/u/obbn)\ **Post date:** [October 16, 2015, 12:48am UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/33 "2015-10-16T00:48:10Z")
Are there extra penalties if it’s a semi auto squirt gun or if it has a high capacity water tank? ---
**Author:** ![Quercus](https://avatars.discourse-cdn.com/v4/letter/q/7ab992/32.png) [@Quercus](https://boards.straightdope.com/u/Quercus)\ **Post date:** [October 16, 2015, 1:42pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/34 "2015-10-16T13:42:05Z")
> [@Bricker](#): > > No, the simple fact of possession of an intended murder weapon while taking steps toward that goal is NOT sufficient. > > You quote an Illinois statute, so I assume you’re discussing Illinois law. I direct your attention to _People v. Smith_, 593 NE 2d 533 (Ill. 1992). > > In Smith, the accused armed himself with a gun, hailed a cab, used the cab to try to locate a specific jewlery store, stole the cab at gunpoint, and admitted to the police he had intended to rob the store and use the cab as a getaway car and haul the jewelry he stole in a pillowcase which he also brought along for that purpose; being stymied only by not finding the specific store he sought. Just curious: I assume that overturning Mr. Smith’s conviction for attempted armed robbery was a bit unimportant given there’s no dispute he committed actual armed robbery (of the cab)? ---
**Author:** ![MrQwertyasd](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@MrQwertyasd](https://boards.straightdope.com/u/MrQwertyasd)\ **Post date:** [October 17, 2015, 3:30pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/35 "2015-10-17T15:30:23Z")
> [@IDtenT\_Error](#): > > It’s the ‘or else’ that makes it an offense. It’s a case of ‘false dichotomy’. Did you offer me the choice to kick you in the 'nads? You’re offering a choice, but the only other side of the ‘choice’ that you offered is what makes it an offense. If the ‘or else’ is ‘I will squirt you with water’, then you’re fine. BUT, if the person on the receiving end of the squirt could think that it might be bleach, and will blind him/her? It’s how your threat might be perceived that’s the problem. The law doesn’t look at the ‘false dichotomy’ choices you offered, it looks at all the _other_ alternatives, and whether or not your ‘bank teller’ victim might have imagined them when you ‘offered’ that supposedly 2 sided choice, but in fact, it’s bloody multivariate, and most of them are… uhh… less than desirable. > > OK, my previous post about ‘intent’ was wrong… Ok, a bit off. The perp may not have bleach in there, but he intended it as a threat. Even if he only intended it as “You’ll get wet”. Depends, some people might say “fuck you, do it if you have the balls!” ---
**Author:** ![Habeed](https://avatars.discourse-cdn.com/v4/letter/h/a587f6/32.png) [@Habeed](https://boards.straightdope.com/u/Habeed)\ **Post date:** [October 17, 2015, 3:37pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/36 "2015-10-17T15:37:53Z")
So if the guy had a drawing in a notebook at a home that said “Operation : Rob The Jewels”. There’s a drawing of the store, a series of steps (1. Walk in the store. 2. Pull out a gun. Etc), and a shopping list. ---
**Author:** ![dougie\_monty](https://avatars.discourse-cdn.com/v4/letter/d/439d5e/32.png) [@dougie\_monty](https://boards.straightdope.com/u/dougie_monty)\ **Post date:** [October 17, 2015, 5:33pm UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/37 "2015-10-17T17:33:39Z")
This reminds me of a scene in the Marx Brothers’ movie \*Go West, \* in which Harpo and saloon owner Red Baxter (Robert Barratt) parody the cliché gunfighter scene. They step together in the saloon; Barratt draws his six-shooter. Harpo shows his weapon–a whisk broom! Everyone laughs, including Barratt and Harpo, who carefully dusts Barratt off as if he is home plate. Then the broom fires! :eek: ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [October 18, 2015, 12:21am UTC](https://boards.straightdope.com/t/water-pistols-and-the-law/734709/38 "2015-10-18T00:21:02Z")
> [@jtur88](#): > > Such as getting in my car in the driveway, with a water pistol in my pocket (or a real gun, it apparently doesn’t matter) but the battery is dead so the car doesn’t start, foiling my plan — that would pretty clearly meet this definition of “substantial step”. IANAL, but I’m inclined to think it wouldn’t, at least, not if you don’t explicitly say that was your intent. I don’t see how that scenario, in isolation, could lead to your arrest to begin with, but if, while you were sitting there, the cops roll up and arrest you, there are lots of perfectly legal reasons you would be attempting to start your car that you could say. **Bricker** actually IAL, and appears to have had the same thought. > [@jtur88 (emphasis added)](#): > > If I say I am going to go and kill somebody, and get in my car with that stated intention, the fact of getting into my car and turning the key is a substantial step toward the commission of the crime Yes, well, you may not want to testify to that effect, for that very reason. [Previous page](https://boards.straightdope.com/t/water-pistols-and-the-law/734709.md?page=1)