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PostPosted: Wed Mar 27, 2002 10:59 pm 
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Other forums may want to copy this where the interest is in knives and edged weapons.

My friends it is time to report a case that is of interest for a vast amount of our forum readers, especially those who use, cherish and collect knives.

Knives were included in a specific statute, in the Commonwealth of Massachusetts, which enhanced a previous statute which went into effect in 1906. Up dates occurred through the years and in 1957, the Legislature broadened the old statute (the old one prohibited daggers, stilletos, or dirk-knives. Included in the list of dangerous per se knives was Chapter 269 Section (10) (b) “any knife having a double edged blade, or a switch knife, or any knife having an automatic spring release devise by which the blade is released from the handle, having a blade length of over one and one half inches, (this revision was acts of 1957 Chapter 688 section 23, which is C. 269, Section 10 (b) of the General Laws.

I will jump the gun on this report and say specifically that what the Legislature did, was not limit knives to a blade length of one and one half inches for all knives, but as shown in the parenthetical expression in the above statutory quote, was limited to “any knife having an automatic spring release devise by which the blade is released from the handle, having a blade length of over one and one half inches”

There is an excellent case in Massachusetts decided September 8, 1986, which addresses several aspects of the statute and is important for IMHO, what care the Court took to enlighten us with its thinking. This was a Supreme Judicial Court case (SJC) and is Commonwealth v. Stephen Miller and is cited as 497 N.E. 2d 29.

“The defendant was convicted of carrying a dangerous weapon prohibited by G.G. c. 289 Section (10(b), as amended , to wit: a “dirk knife”. On appeal he claims that his motion for a required finding of not guilty was improperly denied and that the jury instructions regarding the definition of a dirk knife were erroneous . We reverse the conviction.

The statute does not define the term “dirk knife”. As is the usual practice in interpreting criminal statutes, we construe the term strictly. (Court here cites Crosscup case which held that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity) Com. v. Lupo (same result) A dirk is a long straight-bladed dagger or short sword usually defined by comparison with the ceremonial weapons carried by Scottish Highlanders and naval officers in the eighteenth and nineteenth centuries. (quotes Webster dictionary. A Dirk Knife is a clasp knife or large pocket knife, having a large blade like that of a dirk. It is apparent thaat the trial judge denied the defendant’s motion for a required finding of not guilty, and later instructed the jury on the basis of that definition.

The Webster definition is wanting in blade-related details. It is therefore, an insufficient basis in itself for any determination of whether the defendant’s knife has a blade like a dirk. Other sources, however, allow a comparison of the blade on the defendant’s knife with the characteristic features of both the Highland and the naval dirk. See, e.g. Military Collectables (O’Neill ed. 1983) and Weapons (St. Martins Press 1980) which provide illustrations and detailed descriptions of these dirks and show tapered blades ranging in length from 7.9 to 11.9 inches and in width from one to one and one half inches. Such knives were designed and are useful almost exclusively for stabbing. To facilitate this pur0ose the blade is usually double edged and symmetrical.

Defining a dirk knife in these terms is consistent wit the purpose of GL 269 z(10b). The purpose is to outlaw the carrying of those knives which are primarily designed for stabbing human being or for other unlawful objectives. The purpose is apparent from the types of knives, switch blade, double edged, stilletto, and dagger-prohibited by this statute and is characteristic of statutes prohibiting the carrying of dangerous weapons See and compare cases from other jurisdictions which consider analogous per se statutes People v. Brown 277 N.W. 2d 155 (weapons generally considered dangerous per se are designed for the purpose of bodily assault. (cites case where pocket knife not customarily used as dangerous weapon Louisiana case cited which says pocket knife not transformed into dagger by locking mechanism (State v. Pruett)

Such statutes recognize that while most knives can be used to inflict serious bodily harm, many knives are commonly used in innocent and useful ways which bear no relation to their use as weapons.


The defendant’s knife is a heavy , oversized version of a folding pocket knife or jack-knife. Pursuant to a lawful search, conducted for reasons not relevant here, the knife was discovered in the defendant’s pocket, in the closed position. With the blade folded into the handle, , the knife is 6 ½ inches long by 1 ½ inches wide. In contrast to other quick release knives enumerated in the statute, it does not open quickly or easily. Once opened, and locked rigidly in position, it looks like a dagger. Unquestionably if it had been discovered open, in the defendant’s hand or in his pocket, it could have been deemed to be a dangerous weapon. (California case cited where blade found open in defendant’s pocket. the blade was tapered to a sharp point. Texas case cited (knife in defendant’s pocket in the locked open position, and was judged to be a dagger.

The defendant’s blade is five inches by one and one half inches, single edged and asymmetrical.
It certainly can cut and is a formidable and menacing weapon when opened , but is neither tapered nor readily adaptable (from it folded form) for use as a stabbing weapon. (see Rivens v. State 1938 Texas case (similarly shaped blade in scabbard not a dirk) It is not long enough to fit the usual definition of a dirk-like blade. We hold that this blade does not share enough of the characteristics of a stabbing weapon to be a “dirk knife” within the ambit of GL c. 269, section 10(b).

In holding this, we note that this is a close case. It is not our intention to delineate exactly what combination of characteristics defines a dirk-like blade, or state that a five inch blade can never be enough like a dirk to be proscribed (in the statute). Other characteristics, as for example, a blade tapering to a sharpened tip, man indicate that the knife in question, though shorter than a normal dirk, was indeed designed for stabbing. Ideally, the Legislature should provide more specific guidelines.

Absent more specific statutory criteria, the defendant’s motion for a required finding of not guilty should have been allowed for lack of showing that the defendant’s knife sufficiently fits the recognized definition of a dirk-knife. Judgement reversed, Verdict set aside Judgment for Defendant.

That was the end of the case reported here almost verbatim.

Please note that the case was defined in light of a dirk-knife. Also note that by citing the statute, if the definition of the one and one half blade length meant any thing other than the automatic ejection blade the Court would have dealt with this.

Don’t take great solace in this case alone. We will report others where a woman carrying a common steak knife was convicted, and I will report that one later.

Alan K


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PostPosted: Thu Mar 28, 2002 4:11 am 
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Thanks for the research on this Al. Sounds like a grey area in the law, open to the judge's interpretation. The knife in question, sounds a lot like the popular knives (like the Gunting) many of us own.

As you said, the eventual outcome doesn't come right out and say owners/carriers are "legal", carrying these knives, but there is hope! Hope you find even more optimistic findings.


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PostPosted: Thu Mar 28, 2002 2:17 pm 
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GEM, Sensei,

That case looks as though the judges did their own research in an effort to be fair, knowing well that there was enough vagueness in the statute to overturn that section if not interpreted.

I also believe that if the blade length was an issue relating to the one and one half inch rule, it would have been addressed.

I can remember in the late 1980's, stag handle very large folding knives were popular.

A lot of them were sold in the cutlery stores and were called "Gypsy" knives.

I think the knife in the above decision was that type.

I will report some more of the cases decided under this (or other) statutes.

These cases will give us insight as to how the Court decides on the definition of "dangerous weapon", even where the knife did not meet the dangerous per se standard such as the "dirk" knife.

Alan K


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PostPosted: Thu Mar 28, 2002 8:15 pm 
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Continuing with the subject of legality of knives or edged weapons:

I promised to report on a case where a woman was convicted of carrying a steak knife with an eight inch serrated blade in her pocket book, and the single judge court found enough evidence to warrant her conviction of our now famous c. 269 section 10(b) dangerous weapon statute.

When I saw a synopsis report of this I was more than curious because this case was heard before Judge Kass (and two others) in the SJC. Judge Kass was also one of the judges in the Com. v. Miller case that I presented here in its complete form..

The case is Commonwealth v. Alice Thompson.

Alice was arrested by police on two outstanding default warrants. The arrest did not meet with resistance, and the office found in defendant’s pocketbook a steak knife which had an eight inch serrated blade

She was tried and convicted before a superior court judge for the above cited dangerous weapons statute violation. The Court held: The evidence that the knife had a serrated blade eight inches long, when taken together with the evidence of where the knife was found and the defendant’s statement to the officer that she carried it for her protection, was sufficient to warrant findings that the knife was “dangerous” within the meaning of Section 10(b), and that the defendant knew it to be such. (cases cited)….we reject the defendant’s narrow interpretation of the phrase “warrant for an alleged crime” which is found in section 10(b). The public policy which discourages the carrying of dangerous weapons which can be used against arresting officers…is at least as strong when an arrest is made on default warrant. (and a lot of cases cited)

IMHO, it looks as though a person carrying a knife, which is not per se a dangerous weapon, can make it a dangerous weapon if the carrier is using it to “protect” their person, the gist being that if it is used as a weapon for defense or offense it becomes a weapon, as opposed to our MA readers who use them only for sport, meals or collectors items, and for display, trade, or club activity. A word to the wise?

But poor Alice did not go to jail and the same court granted her a new trial. I don’t know what happened there.

The courts have held, and I will report more on this, that the inclusion of the items set forth in the above “dangerous” weapons statute are not all inclusive. Depending on the circumstances, any thing employed as a weapon can be classified as a dangerous weapon depending on how utilized.

Kick a guy lying down on the ground, you better use your dojo etiquette and take off your shoes or you will be charged with “assault and battery with a dangerous weapon, to wit: a shod foot”.

More about that in another post. Like it or not, we cannot, because of public policy, carry any implement or blade with the sole purpose of self defense. You admit by implication that you could use it as a weapon, albeit for self-defense.

In the “dirk” case, we read about weapons and their configuration which makes them stabbers with the sole use of striking humans. I see constant concern about blade length in these forums, where in Massachusetts and probably many other states, the intended use of knives can be discerned from their structure and the intention of the carrier.

Alan K


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PostPosted: Thu Mar 28, 2002 8:49 pm 
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Interesting. While in Argentina, many of the cowboys carried fixed blade knives on their person. (attached to their belts) Whenever I had a meal with these cowboys, they pulled out their knives to cut meat. Many used them instead of forks.

Maybe they have a similar law to ours, here in Massachusetts, and can legitimately say they carry a knife for the purpose of eating! Image

I gather, from what you are saying, that the length of the blade is not the issue. However, regardless of what reason you have for carrying it, once it is used for self-defense, you become guilty of breaking a law.

Wonderful law Al. No wonder everyone you talk with has a different interpretation of the statute.

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GEM


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PostPosted: Thu Mar 28, 2002 9:23 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Like it or not, we cannot, because of public policy, carry any implement or blade with the sole purpose of self defense. You admit by implication that you could use it as a weapon, albeit for self-defense.


So this seems to apply to any "kubotan" type weapon, such as the baton light that David has, and or the keychain kubotan that Alan lowell gave GEM sensei and I ?

Obviously they are defensive implements.

Will they get us arrested just by owning them?


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Van Canna


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PostPosted: Thu Mar 28, 2002 11:12 pm 
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Weapon??? No way... I use mine for eating ice cream!

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GEM


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PostPosted: Fri Mar 29, 2002 2:00 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Kick a guy lying down on the ground, you better use your dojo etiquette and take off your shoes or you will be charged with “assault and battery with a dangerous weapon, to wit: a shod foot”.


Seems to make a case for hitting with the shin, which would limit our kicks to roundhouse type kicks targeting the opponent’s legs and body/neck.

But the foot is still “shod” when kicking with the shin, so how to convince a trier of fact only the shin was used?

What if mainly the shin impacts on the opponent but only a small portion of the shoe brushes the target?

Will witnesses “see” a shin shot, instead of a kick with a shod foot?



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Van Canna


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PostPosted: Fri Mar 29, 2002 3:19 pm 
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Maybe we can get some Argentina cowboys and Crocadile Dendee to parade around the Massachusetts State House to get them to pass more difinitive laws which would permit law abiding citizens from becoming criminals for possessing cutlery with the wrong taper to the blade or such other vagueries which permit courts to make any interpretation consistent with their subjective reasoning.

We try to resolve the dilemma and uncertainties created when we read the statutes and decisions but a lot remains unanswered.

Here is the headnote from an SJC case and that will be followed by the more interesting facts obtained by reading the whole case:

Defendant who had small kitchen bread knife with approximately an eight inch blade in her handbag when arrested as a disorderly person could not be convicted of carrying on her person a dangerous weapon where the officer had no warrant for her arrest and there was no contention at the time of her arrest defendant was committing a breach or disturbance of the public peace and defendant could not have been prosecuted for carrying the knife on her person for innocent purpose. Com. v. Blavackas (1981 case) 419 Ne2d 856.

Now for the rest of the story:

Linda was being watched by two PO’s (Worcester Police) in unmarked cruisers. They observed her stopping cars driven by males and when she finally got into a car with one they followed and observed. They observed her and the male on the lawn behind a building and arrested her when they witnessed her taking down the pants of the male.

They arrested her for disorderly conduct and disturbing the peace. Did I spell "peace" correctly? In any event they searched her pocketbook, which was noted to be large enough to contain 6 grapefruits, and found drug paraphernalia and a knife which appeared to be a common kitchen bread knife with a blade of about 8 inches.

The court held that she could not be convicted of a breach of peace where it was not observed by the officers and her tryst was silent. She was never charged with being a common street walker or for prostitution.

The Court held that the other charges, even if made, were not consistent with disturbing the public peace.

The Court also decided that since the knife was in her handbag and not on her person, and she had not expressed any statement which would be inconsistent with carrying the knife for innocent purposes , then she could not be convicted of violation of MGL c. 269 section (10b).

The Court did state, that if she had the knife on her person or in a vehicle within her control, the Court would have decided differently.

Is the lesson learned, “Ladies carry a large pocketbook and do your thing in silence?”

GEM, sensei & Van, sensei, and the forum readers, maybe we can make some sense of these laws if we have enough cases to dig into, and report them.

Alan K


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PostPosted: Fri Mar 29, 2002 3:58 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Van Canna:
So this seems to apply to any "kubotan" type weapon, such as the baton light that David has, and or the keychain kubotan that Alan lowell gave GEM sensei and I ?

Obviously they are defensive implements.

Will they get us arrested just by owning them?


<HR></BLOCKQUOTE>

Van sensei,
It was my understanding when I received the training on the Shu-chu (the keychain item I gave you) was that by using pain complaince techniques (pushing or pressing) the Shu-Chu was not considered a weapon. But once you start striking someone with it, it became a weapon.

I wonder if this is right? May make a difference where you are.

Many people have asked me what it was but never suspected what it could do until I gave them a little demo.

Alan


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PostPosted: Sun Mar 31, 2002 6:52 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
IMHO, it looks as though a person carrying a knife, which is not per se a dangerous weapon, can make it a dangerous weapon if the carrier is using it to “protect” their person, the gist being that if it is used as a weapon for defense or offense it becomes a weapon, as opposed to our MA readers who use them only for sport, meals or collectors items, and for display, trade, or club activity. A word to the wise?


*******************************************

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
So this seems to apply to any "kubotan" type weapon, such as the baton light that David has, and or the keychain kubotan that Alan lowell gave GEM sensei and I ?


"Officer, it's just a flashlight." Goes through security at governmental offices and airports.

david


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PostPosted: Mon Apr 01, 2002 8:00 pm 
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I think that the kubotan makes a good case for the principal purpose being a key chain.

I have carried one for years with about thirty keys and a number of the heavy loops.

It has a flat top and bottom (as opposed to the parralel type). The keys can be useful for blade cathing or raking skin. My purpose is to be able to carry it on my person with the kubotan portion in my belt.

I go into court houses and state buildings constantly and have been challenged only once by a young female court officer, who said that I would have to check it with her.

It turns out that she was an MA and was not accusatory or critical and I could hardly argue with her.

Any implement can become a weapon within the meaning of the term "dangerous weapon".

Lets say that you have a heavy ball point pen, which has an ergonomic grip, and you employ that to attack someone, you will be charged with A&B with a dangerous weapon, to wit, a ball point pen. This would be equally true of the key ring type kubotan with flat ends. Since kubotan are not dangerous weapons per se GL C. 269,sec 10(b), nor are pens, if the same were used for self defense, and you did not try to imply that you kept them as weapons, you have the right to defend yourself, if your use was not considered excessive force to quel the attack.

The police must act in a manner which is investigative of an fray, mellee or combative, so even if you have the right to defend yourself, you cannot have an instrument which is per se "dangerous" or considered to be dangerous if that is your intent.

In the case of Steve Miller (above reported)
he had a folded pocket knife and was charged with carrying a dirk knife, which you will see is a separately categoried dangerous per se weapon. Steve made no statement of having any particular use of the weapon. The court was flustered because it didn't know what a dirk knife was, and it researched coming up the idea that it was a longer tapered blade like those by Scotsman for ceremonial dress and did not resemble Steve's folder.

The court also found that the knife was folded and in his pocket, but had it been drawn with an open blade, he would be toast.

That and keeping his mouth shut, resulted in his lower decision overturn, and his acquital.

On the other hand, the lady with the 8 inch steak knife on her person, who by admitting that she carried on her person for her self-defense was not acquited.

Our lady of the evening case resulted in acquital where she carried a large pocket-book containing a long kitchen style bread knife and kept her mouth shut. She was not charged with the other offenses police observed. I guess you could say that she got by, by the skin of her teeth.

I hope to look at some more cases and perhaps come up with how we deal with this subject matter. We have a plethora of gun cases, but relatively not that many reported on this subject.

If you do have to kick with the shod foot or more devastatingly with a kick with the shin, if you can kick like Van, sensei, then you better have done it without excessive self defense (not while the attacker is down on the ground). Here again, the key word is "reasonable".

Alan K

PS, I have not been able to find another flat ended, key chain kubotan, made out of dense plastic.


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