Opinion Tomorrow?

This wikilog article is a draft, it was not published yet.

by: Ryan • June 17, 2014 • no comments

One of my lesser obsessions -- but still an obsession -- involves issues surrounding non-traditional weapons. You may have seen the posts or my OCDLA presentations on this issue -- think "riding crop" as my example of choice -- but to my knowledge no one had preserved this pet issue of mine. It looks like I was wrong about that, however. More below. Anyway, the issue is this: say someone uses a non-traditional weapon and is charged with assault II. State argues that in the manner in which it was capable of causing a serious physical injury. It didn't, or the defendant would have been charged with assault in the first degree. But it could have. Thus the state gets the luxury of proving a counterfactual, i.e., something that didn't actually happen but could have.

The defense is usually, "the [shoe/stick/pillow] was not in fact a dangerous weapon." But you can go one step further. The defendant didn't know it was a dangerous weapon. This might be more palatable to some juries, but at a minimum, it's one more thing the state must prove to get a conviction. The legal steps to making this argument are these: (1) assault II is a knowing crime. (2) "Dangerous weapon" is conduct, and (3) "knowingly" is the lowest mental state to apply to conduct. And I submit in this situation assaulting someone with a dangerous weapon is unquestionably conduct.

The state's response could be, no, it's not conduct. The fact of dangerousness is a circumstance, and since the lowest mental state applying to a circumstance is negligence, he need not know it was a dangerous weapon; he merely should have known.

I submit the argument that it's conduct and not a circumstance is the very definition of dangerous weapon: what makes it dangerous is the manner in which it has been used. I recall a judge out in Washington County, when acquitting in a bench trial, saying "I'm not saying a pillow could never be a dangerous weapon. It just wasn't in this case." And that sounds silly but it's right on the money. Because it's the manner of its use that makes a weapon dangerous, we're talking conduct, and if we're talking conduct, the mental state of "knowingly" applies and the defendant must know it's a dangerous weapon.

Anyway, I have reason to think that tomorrow we'll get some explicit case law on this issue. A case out of Lane County, perhaps? Fingers crossed.

UPDATED: Woo hoo!