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Brazil: Possession or Illegal Carrying of Firearms of Restricted Use Now a Heinous Crime

(Nov. 8, 2017) Last month Brazil enacted a law increasing penalties for firearms violations. On October 26, 2017, Law No. 13,497 amended Law No. 8,072, of July 25, 1990 to include the crime of possession or illegal carrying of firearms of restricted use in the list of “heinous crimes.”  (Lei No. 13497, de 26 de Outubro de 2017, PLANALTO.)

Law No. 8,072 determines which crimes are considered heinous and provides harsher punishments for those crimes. (Lei No. 8.072, de 25 de Julho de 1990 (as amended), PLANALTO.) The punishments include, inter alia, no right to amnesty, clemency (graça), or pardon (indulto) (id. art. 2(I)) and no right to bail (id. art. 2(II)); a longer period of time to be served in prison before eligibility for parole (id. art. 2 §§ 1 & 2); and incarceration in a maximum security facility (id. art. 3).

Restricted Firearms

Decree No. 3,665 of November 20, 2000, defines restricted and permitted firearms, ammunition, and equipment. (Decreto No. 3.665, de 20 de Novembro de 2000, art. 15, PLANALTO.)  According to article 16 of the Decree, the following types of weapons are of restricted use:

  1. weapons, ammunition, equipment, and accessories that have some of the characteristics of the armaments used by the national armed forces with respect to their tactical, strategic, and technical use;
  2. weapons, ammunition, accessories, and equipment that are not identical or similar to the armaments used by the national armed forces but have characteristics that make them suitable only for military or law-enforcement use;
  3. short-range firearms, the common ammunition for which has, on exiting the barrel, an energy level higher than 300 foot-pounds or 407 Joules – ammunition such as that for the .357 Magnum, 9 Luger, .38 Super Auto, .40 S&W, .44 SPL, .44 Magnum, .45 Colt, and .45 Auto;
  4. “long-range, grooved” firearms, the common ammunition for which has, on exiting the barrel, an energy level higher than 1,000 foot-pounds or 1,355 Joules – ammunition such as that for the .22-250, .223 Remington, .243 Winchester, .270 Winchester, 7 Mauser, .30-06, .308 Winchester, 7.62 x 39, .357 Magnum, .375 Winchester and .44 Magnum;
  5. automatic firearms of any caliber;
  6. smooth bore firearms with a caliber of 12 or higher and with a barrel length shorter than 24 inches or 610 millimeters;
  7. smooth bore firearms with a caliber higher than 12 and their ammunition;
  8. air guns operated by compressed gas or spring action, with a caliber higher than six millimeters, which shoot projectiles of any kind;
  9. disguised firearms, which are characterized as devices that look like harmless objects but hide a weapon, such as a pistol-cane, revolver-pen, and the like;
  10. a compressed air gun imitating an Fz 7.62 mm, M964, FAL;
  11. weapons and devices that launch chemical warfare agents or noxious gas (gas agressivo), and their ammunition;
  12. devices that are accessories of weapons and are designed to impede locating the weapon, such as silencers, flash suppressors, and the like, which serve to muffle the explosion or the flash of the shot, as well as devices that modify the conditions of use, such as nozzles, grenade launchers, and the like;
  13. ammunition or pyrotechnic devices or similar devices that can cause fires or explosions;
  14. ammunition with projectiles that contain noxious chemical elements whose effects on the person hit greatly increase the damage done, such as explosive or poisonous projectiles;
  15. swords and rapiers used by the Armed Forces and the Auxiliary Forces;
  16. night vision equipment, such as goggles, periscopes, telescopes, etc.;
  17. optical aiming devices with magnification equal to or greater than six times or a lens diameter that is equal to or greater than 36 millimeters;
  18. aiming devices that use light or other means to mark the target;
  19. ballistic armor for restricted ammunition;
  20. ballistic equipment for protection against restricted portable firearms, such as vests, shields, helmets, etc.; and
  21. armored vehicles for civilian or military use.

Persons Permitted to Carry Firearms

According to article 6 of Law No. 10,826, of December 22, 2003 (Lei No. 10.826, de 22 de Dezembro de 2003, art. 6, PLANALTO), the carrying of firearms is prohibited throughout the national territory, except in the cases provided for in specific legislation and for

  1. members of the Armed Forces;
  2. members of the bodies listed at the beginning of article 144 of the Federal Constitution (which determines that public security is a duty of the State and the right and responsibility of all persons, exercised for the preservation of public order and the security of persons and property, through the federal police, federal highway police, federal railway police, civil police, military police, and military fire brigades) (Constituição Federal, art. 144, PLANALTO);
  3. members of the municipal guard of the capitals of states and municipalities with more than 500,000 people, under the conditions established in the regulation implementing Law No. 10,826 (Decreto No. 5.123, de 1 de Julho de 2004, PLANALTO; Lei No. 10.826, art. 6);
  4. active members of the municipal guard of municipalities with more than 50,000 and less than 500,000 people (Lei No. 10.826, art. 6);
  5. agents of the Brazilian Intelligence Agency and agents of the Department of Homeland Security Office of the Institutional Security of the Presidency (id.);
  6. members of law enforcement agencies referred to in articles 51(IV) and 52(XIII) of the Federal Constitution (id.);
  7. members of the permanent staff of officers and prison guards, prison escort guards, and port guards (id.);
  8. companies involved in private security and transportation of valuables as established in Law No. 10,826 (id.); members of legally constituted bodies of sport, whose sports demand the use of firearms, according to the regulation implementing Law No. 10,826, observing, as applicable, environmental laws (id.);
  9. career members of the Federal Internal Revenue Audit Office (Auditoria da Receita Federal do Brasil) and tAudit Labor Office (Auditoria-Fiscal do Trabalho) and Tax Auditors (Auditor-Fiscal) and Tax Analysts (Analista Tributário) (id.); and
  10. tribunals of the judiciary branch (as described in article 92 of the Federal Constitution) and the Public Prosecutor’s Office of the Union (Ministério Público da União) and the Public Prosecutor’s Office of the States (Ministério Público Estadual), for the exclusive use of its personnel that are effectively exercising security functions, by virtue of  a regulation to be issued by the National Council of Justice (Conselho Nacional de Justiça—CNJ) and the National Council of the Public Prosecutor’s Office (Conselho Nacional do Ministério Público—CNMP) (id.).