What happens if you are arrested with a dangerous weapon?

January 15th, 2019

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Carrying a Dangerous Weapon When Arrested

G.L. c. 269, § 10(b) — Possession of a Dangerous Weapon at the Time of Arrest on a Warrant or for Breach of the Peace

Massachusetts law makes it a separate crime to be armed with, or to have under one’s control, a dangerous weapon at the moment of certain arrests. Under the second clause of G.L. c. 269, § 10(b), a person who is arrested on a warrant or while committing a breach or disturbance of the public peace, and who is armed with or has on his or her person or under control in a vehicle a dangerous weapon, commits a criminal offense.

This expanded guide explains the elements of the offense, the definition of a “dangerous weapon,” the distinction from related firearm and per-se weapon charges, typical penalties, and practical defense considerations.

The Statutory Offense

G.L. c. 269, § 10(b) contains two distinct prohibitions. The first clause lists specific weapons that are unlawful to carry under any circumstances (stilettos, certain knives, blackjacks, nunchaku, and similar items). The second clause—the focus of this article—applies more broadly when a person is arrested:

“[W]hoever, when arrested upon a warrant for an alleged crime, or when arrested while committing a breach or disturbance of the public peace, is armed with or has on his person, or has on his person or under his control in a vehicle, a billy or other dangerous weapon other than those herein mentioned and those mentioned in paragraph (a), shall be punished . . . .”

The statute is designed to discourage the carrying of weapons that could be used against arresting officers. It does not apply to firearms, rifles, or shotguns (which are covered by § 10(a)).

Elements the Commonwealth Must Prove

To convict under the second clause of § 10(b), the Commonwealth must prove beyond a reasonable doubt:

That the defendant was arrested on a warrant, or was arrested without a warrant while committing a breach or disturbance of the public peace;
That at the time of the arrest the defendant was armed with, had on his or her person, or had under his or her control in a vehicle, the alleged item;
That the defendant knew he or she was carrying or controlling the item; and
That the item was a dangerous weapon.

A complaint that fails to allege the first element (arrest on a warrant or for breach of the peace) is legally insufficient and cannot proceed.

What Constitutes a Dangerous Weapon

A dangerous weapon is an item that, by its nature, is capable of causing serious injury or death, or an ordinary object that is used in a manner that reasonably appears capable of causing serious injury or death. Courts examine the nature, size, and shape of the item, the manner in which it was handled or controlled, and the surrounding circumstances.

Items that are dangerous per se (designed and constructed to produce death or great bodily harm) present fewer issues of proof. Everyday objects can become dangerous weapons only when used in a threatening or harmful way. A closed folding knife carried in a pocket, without any brandishing or threat, has been held insufficient to support a conviction under this provision in certain cases.

Penalties

A conviction under § 10(b) is punishable by imprisonment for not less than two and one-half years nor more than five years in state prison, or for not less than six months nor more than two and one-half years in a jail or house of correction. If the court finds that the defendant has not been previously convicted of a felony, the court may impose a fine of not more than fifty dollars or imprisonment for not more than two and one-half years in a jail or house of correction.

Subsequent offenses under related weapons statutes can carry substantially more severe mandatory minimums. Because a conviction can have lasting collateral consequences, these charges should be defended vigorously from the outset.

Related but Separate Offenses

Carrying a dangerous weapon when arrested is distinct from:

Unlawful carrying or possession of a firearm, rifle, or shotgun under § 10(a);
Carrying the specifically enumerated per-se weapons listed in the first clause of § 10(b); and
Resisting arrest under G.L. c. 268, § 32B.

Each offense has its own elements and must be charged and proved separately.

Defense Considerations

Common avenues of defense include:

Challenging whether the item qualifies as a dangerous weapon under the circumstances (especially closed folding knives or ordinary tools);
Contesting knowledge of the presence of the item;
Examining the legality of the underlying arrest or the existence of a valid warrant;
Moving to suppress the weapon if the search that discovered it was unlawful; and
Ensuring the complaint properly alleges every required element.

Frequently Asked Questions

Does this charge apply to firearms?

No. The second clause of § 10(b) expressly excludes firearms, rifles, and shotguns, which are governed by § 10(a).

Is a folding knife automatically a dangerous weapon?

Not necessarily. A closed folding knife that is not brandished or used in a threatening manner has been found insufficient to support a conviction under this provision in certain cases. The analysis is fact-specific.

Why is a first offense still serious?

Even a first conviction can result in significant jail time and creates a felony or weapons-related record that can enhance penalties for any future weapons or violent-crime charges.

Why Experienced Counsel Matters

Charges under § 10(b) sit at the intersection of weapons law, search-and-seizure doctrine, and the precise circumstances of the arrest. An attorney who regularly litigates these cases can evaluate whether the item qualifies as a dangerous weapon, whether the arrest triggers the statute, and whether suppression or other defenses are available.

Contact Criminal Defense Attorney William J. Barabino

If you or a loved one has been charged with carrying a dangerous weapon when arrested, early and experienced representation is essential. The Law Office of William J. Barabino provides client-focused criminal defense throughout Massachusetts.

Call 781-393-5900 today for a confidential consultation.

Visit williambarabino.com for additional resources on weapons charges and related topics.

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