Expandable Baton not a Blackjack

The SJC ruled in Commonwealth v. Perry No. SJC-10451 on 11/18/2009 that an expandable baton is not covered under Chapter 269 § 10 as defined as a “blackjack”.

The court stated that “The question is whether the evidence warranted a finding that the expandable baton was a blackjack within the meaning of the first portion of G.L. c. 269, § 10 (b). The statute identifies a number of specific weapons that are prohibited. In some instances, the name of the weapon is followed by language describing weapons similar to the identified weapon. For example, the statute identifies several specific types of knives, but then also refers to “any [other] knife” having certain characteristics. Similarly, the statute refers to “knuckles of any substance” that can be “put to the same use with the same or similar effect” as metallic knuckles; nunchaku, zoobow “or any similar weapon” configured with two sticks connected by rope, chain, or wire; and shuriken or “any similar pointed starlike object intended to injure a person when thrown.” G.L. c. 269, § 10 (b).”

Further, the court said, in discussing the definition of “blackjack,” that “Other weapons, however, such as a “blackjack,” are particularly named in the statute, without any accompanying reference to “similar weapons,” or those that can be put to the “same or similar” use or effect. While the second portion of § 10 (b) contains very broad, catch-all language (“or other dangerous weapon [s]”), the first portion of the subsection–the only part applicable to this defendant, see note 3, infra –does not. The first portion purports to proscribe only carrying certain dangerous weapons, but not others. [4] See Commonwealth v. Smith, 40 Mass.App.Ct. 770, 770-771, 777 (1996) (homemade weapon satisfied definition of a “knife,” particularly in that Legislature used the general term “any knife”); Commonwealth v. Miller, 22 Mass.App.Ct. 694, 694-695 n. 1 (1986) (“clear that the Legislature did not intend to encompass all knives in its enumeration of ‘per se’ dangerous weapons”); Commonwealth v. Blavackas

, 11 Mass.App.Ct. 746, 752-753 (1981) (small kitchen bread knife with approximately eight-inch blade not type of knife specified in first portion of G.L. c. 269, § 10 [ b ]). In this case, the omission of language broadly including weapons similar to blackjacks in purpose or effect, when read in light of the inclusion of such language in both the first and second part of the statute with regard to other types of weapons, indicates the Legislature intended specifically to proscribe “blackjack[s]” but not all weapons similar to blackjacks. The Commonwealth’s contention that the defendant’s expandable baton is the “functional equivalent of a blackjack,” is therefore unavailing.”

Commentary
I guess we are to believe that a blackjack (does anyone even carry those anymore outside of black and white gangster flicks from the 30’s?) is an inherently dangerous weapon capable of great harm, but an expandable baton is not? Perhaps the court should have looked to address the issue by asking if there is a practical use for the easily concealable device capable of harm? Likely they were afraid of the implication of expanding the definition of blackjack from a civil liberties standpoint.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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