Section 28-1205 - Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; carrying a firearm or destructive device during the commission of a dangerous misdemeanor; penalty; separate and distinct offense; proof of possession(1)(a) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.(b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.(c) Use of a deadly weapon, which is a firearm, to commit a felony is a Class IC felony.(2)(a) Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.(b) Possession of a deadly weapon, other than a firearm, during the commission of a felony is a Class III felony.(c) Possession of a deadly weapon, which is a firearm, during the commission of a felony is a Class II felony.(3)(a) Any person who carries a firearm or a destructive device during the commission of a dangerous misdemeanor commits the offense of carrying a firearm or destructive device during the commission of a dangerous misdemeanor.(b) A violation of this subsection is a:(i) Class I misdemeanor for a first or second offense; and(ii) A Class IV felony for any third or subsequent offense.(4) A violation of this section shall be treated as a separate and distinct offense from the underlying crimes being committed, and a sentence imposed under this section shall be consecutive to any other sentence imposed.(5) Possession of a deadly weapon may be proved through evidence demonstrating either actual or constructive possession of a firearm, a knife, brass or iron knuckles, or a destructive device during, immediately prior to, or immediately after the commission of a felony.(6) For purposes of this section: (a) Dangerous misdemeanor means a misdemeanor violation of any of the following offenses: (i) Stalking under section 28-311.03;(ii) Knowing violation of a harassment protection order under section 28-311.09;(iii) Knowing violation of a sexual assault protection order under section 28-311.11;(iv) Domestic assault under section 28-323;(v) Assault of an unborn child in the third degree under section 28-399;(vi) Theft by shoplifting under section 28-511.01;(vii) Unauthorized use of a propelled vehicle under section 28-516;(viii) Criminal mischief under section 28-519 if such violation arises from an incident involving the commission of a misdemeanor crime of domestic violence;(ix) Impersonating a police officer under section 28-610;(x) Resisting arrest under section 28-904;(xi) Operating a motor vehicle or vessel to avoid arrest under section 28-905;(xii) Obstructing a peace officer under section 28-906;(xiii) Knowing violation of a domestic abuse protection order under section 42-924; or(xiv) Any attempt under section 28-201 to commit an offense described in subdivisions (6)(a)(i) through (xiii) of this section;(b) Destructive device has the same meaning as in section 28-1213;(c) Misdemeanor crime of domestic violence has the same meaning as in section 28-1206; and(d) Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony or communication to another indicating the presence of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony, regardless of whether such firearm, knife, brass or iron knuckles, deadly weapon, or destructive device was discharged, actively employed, or displayed.Neb. Rev. Stat. § 28-1205
Laws 1977, LB 38, § 237; Laws 1995, LB 371, § 8; Laws 2009, LB 63,§ 14; Laws 2023, LB 77,§ 13. Amended by Laws 2023, LB 77,§ 13, eff. 9/2/2023.