July 24, 1998 98-R-0898

FROM: Lawrence K. Furbish, Assistant Director

RE: Definitions of Dangerous and Deadly Weapons

You asked for the definitions of dangerous and deadly weapons in state statutes and if the courts have construed them.

SUMMARY

The statutes contain three definitions of "dangerous" or "deadly" weapon, and none of them are exactly alike. Two, those used to regulate such weapons by requiring permits and to prohibit them from being carried in cars, contain very similar, but not identical, lists of specific weapons. The third, which is used in the penal code in the context of many criminal offenses, is less specific. All three contain general language to indicate that they are intended to cover any dangerous or deadly weapon, not just those specified in the statute.

A number of court decisions have interpreted these definitions, but none has construed them in a very general way. Rather, for the most part the court has dealt with the question of whether a specific weapon in a particular circumstance is a dangerous or deadly weapon. In some instances the courts have found a weapon to be dangerous per se and in other cases the determination of dangerousness has depended on how it was used. In various circumstances a razor, a sawed-off billiard cue, a garden hose, a can opener, and a key have been found to be dangerous and deadly.

Federal statutes also contain several definitions of dangerous weapons and again, they are not identical. We did not attempt to identify and summarize all of the relevant federal statutes, but we would be happy to do so, if you wish.

CONNECTICUT DEFINITIONS

Under CGS § 53-206 it is illegal to carry without a permit any specifically listed item or "any other dangerous or deadly weapon or instrument." Under CGS § 29-38 it is illegal to carry in any vehicle without an appropriate permit or registration any specifically listed weapon or "any other dangerous or deadly weapon or instrument." Finally, CGS § 53a-3 defines, for purposes of the penal code, "deadly weapon" and "dangerous instrument." It also specifies that this definition of "deadly weapon" does not apply to CGS §§ 29-38 or 53-206. Table 1 compares the specifically listed items in these three statutes.

A "deadly weapon," under CGS § 53a-3 is any weapon, whether loaded or unloaded, from which a shot can be fired and the six items specifically listed in Table 1. A "dangerous instrument" is "any instrument, article or substance which, under the circumstances in which it is used … is capable of causing death or serious physical injury,” and this includes both a vehicle and a dog that has been commanded to attack. CGS § 53a-3 also defines the terms "electronic defense weapon" as a weapon that can use an electronic impulse or current to temporarily immobilize a person without inflicting death or serious physical injury, and "martial arts weapon" as a nunchaku, kama, kasari-fundo, octagon sai, tonfa, or chinese star.

Under CGS § 10-233d, school boards must expel students from school for possession of firearms, as defined in federal law, or deadly weapons or dangerous instruments, as defined in CGS § 53a-3. The federal law cited is 18 USC 921. It defines a firearm as (1) any weapon capable of expelling, or readily convertible to expel, a projectile by the action of an explosive; (2) the frame or receiver of such a weapon; (3) a firearm muffler or silencer; or (4) any destructive device (bomb, grenade, etc.).

COURT DECISIONS AND OTHER LEGAL INTERPRETATIONS

In 1945 Attorney General William Hadden informed Edward Hickey, state police commissioner, that a rifle or shotgun was within the category of a dangerous or deadly weapon within the context of the statute that preceded § 53-206 (26 Op. Atty. Gen. 138). In 1950 Hadden informed Hickey that a tear gas pencil gun was a deadly weapon per se because of its obvious function to injure or disable (26 Op. Atty. Gen. 207). Hadden expressed the view that instruments that have a normal and peaceable function can be adapted and used as a dangerous instrumentality. He cited two Connecticut Supreme Court cases that had found a razor (State v. Costa, 95 Conn. 140) and a sawed-off billiard cue (State v. Litman, 106 Conn. 345) to be dangerous and deadly. Hadden states that the test of instruments with a normal use "seems to be the use for which they are adapted in any particular set of circumstances."

In State v. Ryan (23 Conn. Sup. 425 (1962)) the Appellate Division of the Circuit Court considered whether a straight-edged razor is a dangerous or deadly weapon. Observing that many articles manufactured and generally used for peaceful purpose "such as baseball bats, axes, hammers, ordinary pocketknives, razors, or other articles too numerous to mention, may become dangerous or deadly weapons when they are used for the purpose of assault or defense." The court held that CGS § 53-206 was not limited to the specifically listed items because of the phrase "or any other dangerous or deadly weapon.” The court found that a razor was not a dangerous or deadly weapon per se, but the question of whether or when it becomes a dangerous or deadly weapon is a question of fact for the court and jury to determine. It went on to say that "inferences, which may be drawn from the nature of the weapon and the manner of its use, are inferences of fact for the trier to determine in connection with the other circumstances."

In State v. Arpino ( 24 Conn. Sup. 85 (1962)) the Appellate Division of Circuit Court upheld a trial court's determination that a .22 caliber air-operated single-shot pellet gun was a dangerous weapon. In State v. Mallette (153 Conn. 584 1966)) the Supreme Court ruled that a "loaded, .22 caliber rifle is a deadly or dangerous weapon per se."

In State v. Levine (39 Conn. Sup. 494 (1983)) the court upheld the trial court's instruction to the jury that it could not find a hose nozzle to be a deadly weapon, but could find it to be a dangerous instrument if, under the circumstances in which it was used, it was capable of causing death or serious physical injury. In this case the defendant had used the hose in a whip-like fashion to strike the victim in the head, the force of the blow causing the victim to stagger and giving him a lump on the head.

In State v. Frazier (7 Conn. App. 27 (1986)) the Appellate Court considered a case where the defendant threatened to kill the victim if he was not given money and slashed at the victim with a house key, injuring her face, ears, and neck. The defendant wanted the trial court to rule that as a matter of law a key was not a dangerous instrument, thus eliminating necessary elements to the offenses of first degree robbery and second degree assault. The trial court refused to so rule and allowed the jury to hear evidence about the circumstances under which the key was used and its potential for causing serious injury. The testimony included evidence of the victim's abrasions and lacerations caused by the key and medical testimony about the possibility of serious injury to the blood vessels, larynx, and trachea. In light of the evidence, the Appellate Court upheld the trial court's decision.

In State v. Holloway (11 Conn. App. 665 (1987)) the Appellate Court held that the definition of " dangerous instrument" in 53a-3(7) applies to 53-206, and that a knife with a blade less than four and a half inches in length can be a dangerous weapon. The court observed that the specifically listed weapons are dangerous per se and that other items, covered by the phrase "other dangerous or deadly weapon or instrument," can be dangerous when used under circumstances where they can cause death or serious physical injury. The court held that the words "any other dangerous or deadly weapon or instrument" in the context of § 53-206 "do not apply solely to weapons of the same precise kind enumerated in that statute."

In State v. Peterson (13 Conn. App. 76 (1987)) the Appellate Court ruled that a sawed-off shotgun that is operable is a dangerous or deadly weapon or instrument under § 29-38 even though it is not one of the weapons specifically listed in the statute.

In State v. Coleman (14 Conn. App. 657 (1988)) the item in question was a can opener. The victim testified that the defendant "held and pressed to her skin a shiny metal object. That he told her was a knife and that she thought that it was in fact a knife." He also threatened to cut and blind her with that object. The court concluded that "any metal object handled in the manner that this object was used and threatened to be used by the defendant could be considered a dangerous instrument."

In State v. Mercer (29 Conn. App. (1992)) the Appellate Court considered a robbery where the defendant used a pistol to threaten and then strike the victim in the face to force her to surrender her coat. The defendant did not injure the victim. The court concluded that the state only had to prove that the instrument had the "potential" for causing death or serious physical injury. Each case must be individually examined to see if the instrument has this potential under the circumstances in which it is used or threatened to be used. The court asserts that whether the gun, under the circumstances in this case, was capable of causing such injury was a question of fact for the jury. And it found that the record contained sufficient evidence to support the jury's finding that the defendant used a dangerous instrument in the course of the robbery.

FEDERAL DEFINITIONS OF DANGEROUS WEAPON

Under the federal sentencing guidelines a "dangerous weapon" means any instrument capable of inflicting death or serious bodily injury (18 Sent. Guidelines § 1B1.1, Commentary). The guidelines state that when an object that appears to be a dangerous weapon is brandished, displayed, or possessed, it should be treated as a dangerous weapon. ("Brandishing" is defined as pointing, waving about, or displaying a weapon in a threatening manner.)

Under federal law it is a crime to possess a firearm or dangerous weapon in a federal facility (other than a federal court building) (18 USC 930). For purposes of this statute a dangerous weapon is a "weapon, device, instrument, material, or substance, animate or inanimate, that is used for or is readily capable of, causing death or serious bodily injury," except that it specifically excludes a pocket knife with a blade less than two and a half inches in length.

LKF:tjo