Threats aren't Use - a Special Instruction for Unlawful Use of a Weapon: Updated
Update: See this discussion. In light of the Osborne opinion, we should consider amending the instruction below so that it says something like this: Threatening to use a dangerous weapon - as long as that threat doesn't serve a separate, unlawful purpose - is not use of that weapon.
Oscar Wilde once said, "The only thing to do with good advice is to pass it on. It is never of any use to oneself."
In accordance with that quip, I have often provided legal arguments and memoranda that I have never used myself. That is, if you define "used" as "argued." I have filed a lot more motions than I have obtained a ruling on.
In fact, there has been one memo that I have written that has been wildly successful, but never one I've argued. And that is the request for a jury instruction limiting the scope of the word "use" in the crime of "unlawful use of a weapon (UUW)." I have heard from many lawyers that they have relied on my memo to obtain the instruction and subsequently earned an acquittal from either the judge or the jury. Virtually every judge that has been asked has given the instruction. And when the instruction is given, the state's case is dramatically handicapped.
The instruction is relevant in UUW cases that are paired with a Menacing. If the weapon is used in a robbery or assault then it is probably used for the purpose of the UUW statute. But when the defendant has simply threatened the victim with a weapon (such as a gun or knife), the threat is not use. The requested instruction reads:
"Use of a dangerous weapon" means to utilize the weapon in such a way that it could readily cause death or serious physical injury. Threatening to use a dangerous weapon is not use of that weapon.
In other words, "use" means "stab" if it's a knife, "discharge" if it's a gun. Since UUW can be charged as "possession with intent to use," the threat to use is usually enough for the state to survive an MJOA. But the state's task becomes exceedingly grim when it no longer has the benefit of the most favorable light. The state must persuade a jury beyond a reasonable doubt that, for example, the defendant possessed a knife with the intent to stab someone, even though the defendant never actually attempted to stab anyone. Every juror knows there are many more barks in this world than bites. Threats serve their own purposes, which are usually satisfied by the threat alone. Very few threats are ever intended to be carried out.
As with all my other posts and material that appear on this website, the UUW motion and memo are Google searchable. Which doesn't mean much if you're already on the site and know what you're looking for. But at some point, you may want to begin your legal research by Googling "Ryan Scott [crime]" and see if it's a topic I've gotten to yet. And, in any case, you can find this memo in the future by Googling "Ryan Scott UUW"