In Massachusetts, the maximum punishment for assault and battery is two and a half years in jail.[1] The maximum penalty leaps up to ten years in prison if the assault and battery is committed with a “dangerous weapon.”[2] Consequently, police in Massachusetts will use almost any excuse they can find to include a “dangerous weapon” as part of an A&B charge.
The question of what constitutes a “dangerous weapon” has been the subject of much litigation.
Generally speaking, there are two categories of dangerous weapons.
The first includes all weapons that are inherently dangerous. These are usually items designed with the sole purpose of inflicting bodily harm. Guns are the most obvious example. But the legislature has provided a long list of other weapons that should be considered dangerous. The list is set forth in M.G.L. c. 269, § 10(b) and it includes the following:
- Stilettos,
- Daggers,
- Throwing knives,
- Switch-blade knives,
- Blowguns,
- Brass knuckles,
- Nunchucks,
- Throwing stars,
- Billy clubs, etc.
Case law has also found mace to be inherently dangerous.[3]
The second category of “dangerous weapons” includes nearly any item that is used to inflict harms. In such cases,
The essential question…is whether the object, as used by the defendant, is capable of producing serious bodily harm.
Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001)
Whether the object is or is not a “dangerous weapon” is a question for the jury.
Examples of commonplace objects meeting the criteria of a dangerous weapon include the following:
- Concrete pavement against which the victim’s head was struck;[4]
- A rubber hose used to whip the victim;[5]
- Natural gas which the defendant leaked into the victim’s house while she was asleep inside;[6]
Additionally,
Footwear, such as a shoe, when used to kick, can be a dangerous weapon.
Commonwealth v. Tevlin, 433 Mass. 305, 311 (2001)
This is commonly referred to as “shod foot.”
No part of the defendant’s body—including his teeth—can be construed as a dangerous weapon.[7]
Finally, as stated Note 1 of the jury instructions on A&B with a dangerous weapon,
The fact that an appellate court previously held that the object was capable of being used as a dangerous weapon does not make it such in all future cases, regardless of circumstances.
Jury Instruction 6.300
[1] M.G.L. c. 265, § 13A
[2] M.G.L. c. 265, § 15A
[3] Commonwealth v. Lord, 55 Mass. App. Ct. 265 (2002)
[4] Commonwealth v. Sexton, 425 Mass. 146, 152 (1997)
[5] Commonwealth v. Durham, 358 Mass. 808, 809 (1970)
[6] Commonwealth v. Lednum, 75 Mass. App. Ct. 722 (2009)
[7] Commonwealth v. Davis, 10 Mass. App. Ct. 190 (1980)
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