In Massachusetts, carrying an ordinary item such as a hammer or a kitchen knife is usually not a crime. But if you have a dangerous weapon on you, or under your control in a vehicle, when you are arrested on a warrant or arrested during a breach of the peace, you can be charged with a felony under G.L. c. 269, § 10(b). The arrest is what turns the item into a crime.
At a Glance: Dangerous Weapon When Arrested
Felony
up to 5 years in state prison
Two triggers
arrest on a warrant, or arrest during a breach of the peace
Knowledge required
you must know you had the item
Not for guns
firearms, rifles, and shotguns are charged under § 10(a)
The law: G.L. c. 269, § 10(b); District Court Instruction 7.700
What the Law Covers
Section 10(b) has two clauses. The first makes it a crime to carry certain listed weapons at any time, such as a stiletto, a dagger, a switch knife, a double-edged knife, a ballistic knife, a blackjack, metallic knuckles, or nunchaku. The second clause, which this post covers, applies when you are arrested:
- on a warrant for an alleged crime; or
- while committing a breach or disturbance of the public peace.
If at that moment you are armed with, or have on your person, or have under your control in a vehicle, “a billy or other dangerous weapon” not already covered by the first clause or by § 10(a), you have committed the offense. The model jury instruction notes that its purpose is to protect the officers making the arrest.
One Statute, Two Weapon Crimes: § 10(b)
First clause: listed weapons
Carrying items the statute names, such as a stiletto, switchblade, double-edged knife, blackjack, metallic knuckles, or nunchaku
A crime any time you carry one, arrest or not
Second clause: when arrested
A billy or any other dangerous weapon, on you or under your control in a vehicle, at the time of an arrest on a warrant or for a breach of the peace
A crime only because of the arrest
Firearms, rifles, shotguns
Never charged under this clause
Charged under § 10(a) instead
The law: G.L. c. 269, § 10(a)–(b); Instruction 7.700
What the Commonwealth Must Prove
Under District Court Instruction 7.700, the Commonwealth must prove four things beyond a reasonable doubt:
- you were arrested on a warrant, or arrested without a warrant for committing a breach of the peace;
- at the time of the arrest, you were armed with the item, had it on your person, or had it under your control in a vehicle;
- you knew you were carrying the item; and
- the item was a dangerous weapon.
What Is a Breach of the Peace?
Not every crime is a breach of the peace. The instruction says an affray, an assault, or disorderly conduct is a typical breach of the peace, and its notes list cases holding that OUI and a high-speed police chase qualify. If the arrest was without a warrant and the underlying offense was not a breach of the peace, this charge does not apply.
What Is a Dangerous Weapon?
The instruction gives two definitions:
- Dangerous by nature: an item that, by its nature, can cause serious injury or death. The judge can tell the jury that such an item is a dangerous weapon as a matter of law.
- Dangerous by use: any other item is a dangerous weapon only if it is used in a way that reasonably appears capable of causing serious injury or death to another person. The jury looks at the circumstances in which it was possessed, its nature, size, and shape, and how it was handled or controlled.
That second category is where many of these cases are fought. An everyday object that was never handled in a threatening way may not qualify.
Penalties
A conviction is punishable by 2½ to 5 years in state prison, or 6 months to 2½ years in a jail or house of correction. If the court finds you have no prior felony conviction, it may instead impose a fine of up to $50 or up to 2½ years in a jail or house of correction (G.L. c. 269, § 10(b)).
Defenses
- Not a dangerous weapon: the item was not dangerous by nature and was not used in a way that appeared capable of causing serious injury or death.
- No qualifying arrest: there was no warrant, and the offense you were arrested for was not a breach of the peace.
- No knowledge: you did not know the item was on you or in the vehicle.
- Not under your control: an item in a shared vehicle may not have been in your control.
- Unlawful search: if the item was found through an illegal search, it may be suppressed.
Why a Lawyer Matters
This charge often rides along with the offense you were arrested for, and it can make a misdemeanor arrest into a felony case. Whether an item counts as a dangerous weapon, and whether the arrest qualified, are questions worth fighting over. Attorney William J. Barabino has defended weapons cases for 23 years. Call 781-393-5900.
Related Charges
Disclaimer
This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
