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PostPosted: Wed Nov 05, 2003 8:58 pm 
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Joined: Sat Dec 12, 1998 6:01 am
Posts: 1688
Location: Weymouth, MA US of A
Today the Massachusetts Court of Appeals issued a decision reversing the conviction of a man convicted of carrying a dangerous weapon ( a folding knife) while there were warrants issued for his arrest. From the case:

The defendant, Eugene Turner, was stopped in Boston's "Combat Zone" in the early hours of a weekday morning and police removed from his back pocket a folded knife with a three and one-quarter inch serrated blade. When police learned that there were outstanding warrants for the defendant's arrest, they arrested him on those warrants and, in addition, charged him with violating a Mass. Law, which prohibits, among other things, possession of a dangerous weapon when arrested on a warrant. The defendant was a passenger in a car that was stopped for going the wrong way down a one-way street around 2:30 AM. When the car was stopped, the passenger-defendant got out of the car and began to walk away. He was stopped by the police, was searched (with hs consent, strangely enough), was found to be in possesion of a knife that " was a common implement of a type freely available for purchase in stores throughout the city of Boston". The cops ran his name for warants, found there were some for his arrest, and arrested him. He was tried and convicted for being in possesion of a dangergous weapon when arrested upon a warrant for an alleged crime.

The Appeals Court reversed the conviction. It noted that:

  • when not otherwise defined, the term "dangerous weapon" embraces objects that are dangerous per se, i.e., objects that are 'designed and constructed to produce death or great bodily harm' -- objects, in other words, that are 'designed for the purpose of bodily assault or defense,' -- and objects that are dangerous as used, i.e., 'those things that become dangerous weapons because they are used in a dangerous fashion.'" and that 'The essential question, when an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm.'
  • Straight knives typically are regarded as dangerous per se while folding knives, at least those without a locking device, typically are not
  • The question, therefore, is whether the evidence permitted the fact finder to conclude that the defendant used or handled the knife in a manner that made it a dangerous weapon. It did not. At all material times, the defendant's knife was out of sight, folded in his back pocket. It was folded in his back pocket as he distanced himself from the police. It was folded in his back pocket when he told the officers, after he was stopped, that they could search him. The officers were not even aware of its existence until they encountered it during the frisking process. Whatever the knife's potential for harm at other times and in other circumstances, the defendant did not use it in a manner that was capable of causing serious harm or even the apprehension of serious harm on the morning of his arrest. Consequently, the evidence was insufficient to support a conviction under a theory that the defendant's knife was dangerous as used.
  • That the prosecutors' argument that, when considering weapons like the defendant's that are not dangerous per se, "use" in the possessory context does not mean actual use of the weapon; rather it means carrying a weapon, is wrong.
  • The prosecutor is wrong because such an interpretation would make all persons, such as the carpenter with her hammer, the plumber with his pipe wrench, the Sunday driver in an automobile and all but the shoeless, would be beneath the statute's broad cover. The courts declined "to adopt an interpretation that would produce such an absurd result".
  • The prosecutor is also wrong because such an interpretation would violate Due Process because Due process requires "fair notice of proscribed conduct." Common sense would suggest to one who uses an innocent object in a manner capable of causing death or serious injury, or in a manner that creates a reasonable apprehension of those results, that his conduct is of doubtful legality. But if the statute truly means that a "dangerous weapon" is any hammer, wrench, pocketknife, or other object with dangerous potential, regardless of how that object is used, then wholly innocent possession of the object will be criminalized by issuance of a warrant or, at least, by the warrant's execution. Acceptance of the Commonwealth's position would, therefore, produce a statutory scheme with the potential for criminalizing otherwise innocent activity in a way that provides a defendant with no notice of his conduct's prohibited nature until after the crime had occurred. Such a scheme would clearly violate the first essentials of Due Process.
  • Oft times, a defendant doesn't even know if there are warrants for his arrest.


This case still leaves some unanswered questions, and affirms some troubling ones. For example, those of us with Cold Steel Tanto knives are troubled by the statement that "straight knives typically are regarded as dangerous per se". The court also said that folding knives, at least those without a locking device, typically are not regarded as dangerous weapons. Yet I'm not aware of any definiton of a locking device. And a folding knife that doesn't somehow "lock" into a straight position is, well, useless; even if you use just to open boxes in the shipping department at work.

The court did, even if in a back-handed fashion, affirm a person's right to carry a non-dangerous per se weapon, provided that weapon is not used in a dangerous fashion.

The case is Commonwealth vs. Turner, and I found it at the Massachusetts Lawyers Weekly website.

Comments?

Gene


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PostPosted: Sun Jan 04, 2004 9:12 pm 
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Joined: Sun Jan 04, 2004 8:35 pm
Posts: 3
I'm glad this guy didn't get stuck with a BS charge, but I agree that their commentary is troubling. Straight knives are regarded as "dangerous per se"?? Its kind of scary to think that I cut up an apple last night with something "constructed to produce death or great bodily harm". Its a wonder it didn't jump out of my hand and lodge itself in my roommate's chest cavity.... In regards to the folding knives- I believe they were referring to a knife with a lock that has to be manipulated in order to close it (ie: framelock, liner lock, lockback) as opposed to knives that can be closed by simply applying pressure to the back of the blade. (not that I believe this makes either inherently dangerous, just trying to clear that up.)


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PostPosted: Tue Jan 06, 2004 3:19 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Great post Gene,

I have great difficulty in believing that a knife could change characteristics because it had a locking mechanism to prevent the blade from snapping back. The thrust or cut is not different and all that the lock does is prevent the knife from folding on the user. I used to get cut or scratched when my old Parker folder would flop closed when I was a kid fashioning wood arrows.

There are other cases in this forum which posed questions that were not answered concerning the interpretation of this horrid kludge enacted some thirty years ago, ( a lot older than that for many provisions).

In Commonwealth v. Steve Miller, defendant was charged with carrying a dirk knife. I will not get into that one here, and it is posted. The court said that the knife was not a dirk knife and defined what the characteristics of a dirk knife was about.

He carried a folder with a long blade which was ornate, and what I considered as a Gypsy Knife, one of which I have had for years. It did not refer to a locking mechanism.

The courts have been trying hard to define common sense applicable to these laws, that will not result in a "scheme" for prosecutorial turkey shoots.

Somehow, I believe that the intention of the "locking mechanism" refers to slide handle knives which by spring action or inertia can be drawn from closed to open weapon when desired.

I do not know why the edged weapon companies or organization do not lobby for change.

Alan K

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"The Goddess of Justice is Blind"


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