gavel

Shooting someone in self defense is universally recognized as an act of deadly force, but what about self defense with a knife? While a knife can certainly be used as a deadly weapon, often a knife cut is not deadly, not debilitating, and may heal without medical treatment. With that in mind, our question of the month is–

Does the court always consider the knife a deadly weapon? Are there possible situations in which a person defending him- or herself with a knife might NOT be viewed as attempting to kill another?

 

Mark Seiden
Mark Seiden, PA
3948 3rd St. S., Ste. 387, Jacksonville Beach, FL 32250-5847
904-373-5732
This email address is being protected from spambots. You need JavaScript enabled to view it.

That would depend. Unless you were a stick of butter, a butter knife would likely not be considered a deadly weapon. That said, in the heat of a violent encounter, it may be difficult to distinguish a butter knife from a knife capable of inflicting grievous injury. This would be akin to the analogy of shooting someone threatening you with what later turned out to be an airsoft replica weapon.

Should you draw a knife to defend yourself, if the knife had a sharp point and/or a sharpened edge, it would definitely be considered a deadly weapon. Even if it was just a butter knife, should the person being threatened perceive it to be a deadly weapon, unless that perception would be deemed clearly unreasonable using the “reasonable person” standard, it would still be considered a deadly weapon.

Terrence R. Rudes
Attorney at Law
216 Adams St., Port Clinton, OH 43452
419 732-3000
This email address is being protected from spambots. You need JavaScript enabled to view it.
http://www.duiohio.net

I think knives may be scarier than guns for many people. Under Ohio’s definition of deadly weapon, a knife certainly qualifies. I think that the question will be more fact driven than most shooting cases. Again under Ohio law, where death does not result, the court uses a standard of “was the force used excessive under the circumstances?” The type of knife wound, stabbing vs. slicing, may be argued as more desperate or defensive respectively. I don’t think that a court will ever find that a knife is not a deadly weapon, but how and to what extent it is used will be the key factors in establishing self defense.

David W. T. Carroll
Carroll, Ucker & Hemmer LLC
175 S. 3rd St., Ste. 200, Columbus OH 43215
614-547-0350
This email address is being protected from spambots. You need JavaScript enabled to view it.

Ohio is inconsistent with its view on whether a knife is a deadly weapon. It is situation and device specific.

Revised Code §2923.11 provides:
“Deadly weapon” means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.

A knife will be considered a deadly weapon if it is used as a weapon.

An Ohio concealed carry permit is called a “concealed handgun permit” and does not authorize the carrying of any deadly weapon [like a knife]. For concealed carry purposes, the cases consider a knife as a deadly weapon if it is designed to be used as a weapon.

In State v. Anderson, 2 Ohio App. 3d 71 (1981), a frisk search of a criminal damaging suspect yielded a folding knife with a locking four-inch blade which could not be easily opened with one hand. The court reversed a concealed carry conviction, because the state did not prove beyond a reasonable doubt that the instrument was either: (i) designed or specially adapted for use as a weapon; or (ii) possessed, carried or used as a weapon.

In State v. Cattledge, 2010 Ohio 4953 (Ohio App., 2010), the court reviewed the confusing and contradictory case law in Ohio:
{¶12} In State v. Flowers (May 1, 1985), 1st Dist. No. C-840564, the court held the trial court’s determination that appellant’s knife was designed as a weapon was not supported by sufficient evidence. The knife in question was a folding knife with a serrated, four-inch, curved blade. However, the tip of the knife blade was not sharp, the blade could only be opened by using two hands, and the blade did not lock in the open position.

{¶13} The court in Flowers cited to State v. Sears (Feb. 27, 1980), 1st Dist. No. C790156. In Sears, the court found the knife in question was not a deadly weapon. The knife was a folding knife, required two hands to open, had a four-inch blade, and locked in place. The court discounted the relevancy of the locking feature, stating that anyone who had ever utilized a folding knife knew this feature made the knife more useful for a multitude of lawful purposes and does not make the knife per se designed for use as a weapon. The court indicated the knife was otherwise “just like any other pocket knife.” Id.

{¶14} In State v. Manning (Feb. 16, 2001), 2d Dist. No. 18347, the court found the knife in question to be a deadly weapon. In Manning, the blade on the knife was less than two inches in length, was pointed and sharp, was concealed inside a cylinder that could easily and quickly be manipulated to make the knife available to use as a weapon, and could be opened using only one hand.

{¶15} In State v. Graham (Oct. 23, 1998), 6th Dist. No. S-97-050, the court found there was sufficient evidence that the knife at issue was a deadly weapon. The knife was a folding knife with a four and one-half inch blade and had a hole incorporated into the knife’s blade designed to permit the knife to be opened with one hand. The court found that, at the least, evidence of one-handed operation was sufficient to submit the matter to the jury as a question of fact, and the jury apparently resolved the question in favor of the state.

{¶16} In State v. Wheeler (Mar. 19, 1999), 2d Dist. No. 17197, the court found insufficient evidence that the knife at issue was a weapon. The knife was a “butterfly” knife, which is a knife sheathed by a two-part, hinged handle that is exposed by disengaging a clasp and pulling apart the unhinged portions of the handles to make a united handle. The knife required two hands to open. The defendant, who was a tool and die worker, made the knife, and the court noted he used the knife for carpentry, as a scriber, for shaving boards, opening packages and bags, and deburring steel at work.

{¶17} In Mayfield Heights v. Greenhoff (Nov. 14, 1985), 8th Dist. No. 49741, the trial court found there was insufficient evidence to find the two knives at issue were deadly weapons. One knife was a pocketknife with a three and one-half inch blade, and the other was a two-inch folding razor. The appellate court examined the weapons and found that neither object had features that would demonstrate it was per se designed for use as a weapon. The court called the pocketknife an “ordinary” pocketknife that required two hands to open and had no spring attachment. The razor folded into a two-inch sheath. Without further evidence of any other characteristics, the court found neither to be a deadly weapon.

{¶18} In State v. Ratcliff (Oct. 26, 1983), 4th Dist. No. 82 CA 13, the court found the knife was not a deadly weapon. At issue in the case was what the court termed an “ordinary” pocketknife, which required two hands to open and could not be locked in an open position. The blade itself was about two and one-half inches long, with the total length of the open blade and knife being just less than six inches.

{¶19} Based upon the above cases, the following characteristics may, but not always, support a finding that a folding knife is a deadly weapon within the definition of R.C. 2923.11(A):
(1) a blade that can easily be opened with one hand, such as a knife with a switch, a spring-loaded blade, or a gravity blade capable of instant one-handed operation;
(2) a blade that locks into position and cannot close without triggering the lock;
(3) a blade that is serrated;
(4) a blade tip that is sharp;
(5) an additional design element on the blade, such as a hole, that aids in unfolding the knife with one hand;
(6) does not resemble an “ordinary” pocket knife; and
(7) is a type of knife considered a weapon for purposes of R.C. 2923.20(A)(3).

I could find no case discussing whether a knife carried via a pocket clip that renders the knife partially visible could be considered a concealed weapon. Ohio generally permits the open carry of weapons without a permit.

As to the second part of the question, the statutory definition of a deadly weapon includes the use of the knife (which is capable of inflicting death) as a weapon. It seems to me that use in self defense is a use as a weapon. If the knife is being used in self defense, it does not matter legally in Ohio whether the defender is trying to kill the attacker, as long as the self defender was in reasonable fear of death or great bodily harm.

Robert Fleming
Attorney at Law
P.O. Box 494, Williamston, MI 48895
517-655-3399
This email address is being protected from spambots. You need JavaScript enabled to view it.

Michigan Criminal Jury Instruction 17.10 provides:

(1) A dangerous weapon is any object that is used in a way that is likely to cause serious physical injury or death.

(2) Some objects, such as guns or bombs, are dangerous because they are specifically designed to be dangerous. Other objects are designed for peaceful purposes but may be used as dangerous weapons. The way an object is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an object is used in a way that is likely to cause serious physical injury or death, it is a dangerous weapon.

(3) You must decide from all of the facts and circumstances whether the evidence shows that the __________ in question here was a dangerous weapon

Thus in Michigan, whether or not a knife is a deadly weapon is a question of fact for the jury. But since a person who is using a knife in self defense is normally using it in such a way that it will cause physical injury, the answer is usually “Yes,” it is a deadly weapon.

However, that is not the end of the inquiry, MCL 780.972 provides:

Sec. 2. (1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

Thus, even if the jury finds that the use of a knife by the defendant was deadly force or a deadly weapon the use of the weapon may be permissible, depending on the circumstances.

Arthur R. Medley
Attorney At Law
P.O. Box 5544, Dothan, AL 36302
334-790-6878
This email address is being protected from spambots. You need JavaScript enabled to view it.

Part one: Does the court always consider the knife a deadly weapon?

Yes, a knife most likely will always be classified as a deadly weapon. Caveat in Alabama - most of our crimes dealing with some degree of physical injury say the injury can be caused by a deadly weapon or dangerous instrument - therefore, the knife will most likely be included regardless of how it is fashioned, except maybe a butter knife.

Part two: Are there possible situations in which a person defending him- or herself with a knife might NOT be viewed as attempting to kill another?

Yes. As with all crimes (except speeding tickets) intent is a necessary element so to become a murder or attempted murder there must be an intent - doesn't matter what weapon or instrument was used. In Alabama self defense is a complete defense so the member is still likely to be charged with the murder or attempted murder but the evidence will show self defense and render a not guilty. No intent, so to say. A prosecutor could look at the circumstances and say it was clearly self defense and not indict but given these are elected officials in our state they usually charge and let the courts and juries sort it out.

Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., PO Box 31, Meridian, ID 83680
208-887-4800
This email address is being protected from spambots. You need JavaScript enabled to view it.

In Idaho, a knife is a deadly weapon by definition, as an instrument likely to cause serious bodily injury or death. Idaho Code Section 18-907(b) (the statute enhances the crime of battery to aggravated battery when a deadly weapon is employed).

The Idaho Supreme Court has also defined a deadly weapon as, “Our Supreme Court has defined a deadly weapon as a weapon which is likely to produce death or great bodily injury. If it appears that the instrumentality is capable of being used in a deadly or dangerous manner and it may fairly be inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, its character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion.

State v. Missenberger, 86 Idaho 321, 327, 386 P.2d 559, 562 (1963)
State v. Hernandez, 818 P.2d 768, 772 (Idaho App. 1991)

In Idaho, attacks with a “sulphur gun,” sock filled with batteries, and even a longboard (4 foot skateboard) have been found to be deadly weapons. I would think that any weapon that COULD be used to kill will be a deadly weapon, no matter what injuries were actually inflicted. If you stab someone with a knife, and the single stab renders the person otherwise unable to defend themselves, then the only reason death would not result is if the attacker does not fully prosecute his attack to kill the victim. The victim would be defenseless, so the victim certainly should be able to defend himself with a gun before he gets stabbed.
__________
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month when we raise a new topic of discussion with our Affiliated Attorneys’ comments.

Click here to return to our August 2016 Journal to read more.