District Court Instruction 7.700: Carrying a Dangerous Weapon When Arrested

MassFLC › Jury Instruction

This is not law. It records what the body named below published, on the date shown. Commentary, guidance and model instructions may be persuasive, but none of them carries the force of law, and none is a statement of what the law requires.

Source: Criminal Model Jury Instructions for Use in the District Court
Edition: 2009
Statute: G.L. c. 269, § 10(b) (second clause)

Scope note: This offense is inapplicable to firearms, rifles, and shotguns (covered by § 10a) and to the per se dangerous weapons listed in the first clause of § 10(b) (see Instruction 7.680). This covers other "dangerous weapons" found on a person during arrest.

Elements

The Commonwealth must prove four things beyond a reasonable doubt:

The defendant was (arrested on a warrant) (arrested without a warrant for committing a breach of the peace);
At the time of arrest, the defendant (was armed with) (had on their person) (had under their control in a vehicle) the alleged weapon;
The defendant knew they were carrying the weapon; and
The alleged weapon was a dangerous weapon.

Element 1: Arrest

Must be either arrest on a warrant for an alleged crime, or arrest without a warrant while committing a breach or disturbance of the public peace.

Purpose: Statutory purpose is to ensure the safety of arresting officers. O'Connor, 7 Allen 583, 584 (1963).

Complaint must charge this element: A complaint that does not charge the first element charges no crime. Blavackas, 11 Mass. App. Ct. 746, 752-753 (1981).

Element 4: Dangerous Weapon

Dangerous per se: An item which, by its nature, is capable of causing serious injury or death. Judge instructs as a matter of law.

Not dangerous per se: An item is a dangerous weapon if used in a way that it reasonably appears capable of causing serious injury or death. Jury may consider circumstances of possession, nature/size/shape, and manner of handling.

Supplemental Instruction: Breach of the Peace

Not every crime is a breach of the peace. Examples:
- Is a breach: Affray, assault, disorderly conduct, OUI (Gorman, 288 Mass. 294, 298-299 [1934]), high-speed traffic chase (Cavanaugh, 366 Mass. 277, 280-281 [1974])
- Not a breach: Possession of short lobsters (Wright, 158 Mass. 149, 158-159 [1893]), illegal sale of alcohol (Lennon v. Richardson, 15 Gray 74, 77 [1860])

Notes

Possession of billy (Note 1): Statute also specifically punishes possession of a "billy" when arrested. Instruction should be adapted if alleged weapon is a billyclub.

Knives as dangerous weapons (Note 2): Straight knives are typically dangerous per se. Folding knives without a locking device typically are not. Possession of a closed folding knife is a dangerous weapon only if used or handled in a manner that made it dangerous. Turner, 59 Mass. App. Ct. 825 (2003).

Cases Cited

Commonwealth v. O'Connor, 7 Allen 583 (1963)
Commonwealth v. Blavackas, 11 Mass. App. Ct. 746 (1981)
Commonwealth v. Gorman, 288 Mass. 294 (1934)
Commonwealth v. Cavanaugh, 366 Mass. 277 (1974)
Commonwealth v. Turner, 59 Mass. App. Ct. 825 (2003)