Attorney Question of the Month
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?
Russell Defense Firm
309 Washington St., Brighton, MA 02135
Yes. Any knife having a double-edged blade or automatic spring release is considered a deadly weapon in Massachusetts. A knife without a double-edged blade is merely a dangerous weapon. But if it is used in a manner intended or likely to cause death or great bodily harm, then that dangerous weapon escalates to being considered a deadly weapon under Massachusetts state law.
Mitchell Lake, Esq.
Rachel M. Baird & Associate
8 Church St., Ste. 3B, Torrington, CT 06790-5247
Connecticut General Statutes § 53a-19(a) provides, “…deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”
General Statutes § 53a-3(5) defines the term deadly physical force as, “…physical force which can be reasonably expected to cause death or serious physical injury.”
General Statutes § 53a-3(4) defines serious physical injury as, “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”
In Connecticut a knife may be considered a deadly weapon pursuant to General Statutes § 53a-3(6) which addresses a “…switchblade knife, gravity knife” or it may be considered a dangerous instrument pursuant to General Statutes § 53a-3(7) which defines the term dangerous instrument to include “…any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury…”
Regardless of the classification, a knife will almost always be considered “…an instrument that was capable of causing death or serious physical injury…” State v. Torres, 82 Conn. App. 823, 830, 847 A.2d 1022, 1027 (2004)
The use of a knife in Connecticut will be treated as physical force which can be reasonably expected to cause death or serious physical injury; therefore, the justification for the use of same must be that which would justify deadly physical force.
Florida Firearms Law Consulting
1861 S. Patrick Dr., Box 194, Indian Harbour Beach, FL 32937
I would like to give a very short answer to your question on the use of a knife in self defense in Florida. While a jury may decide whether the way the knife was used was the use of deadly force, or non-deadly force, still the knife itself will always be considered a “deadly weapon.” Furthermore, the wounds inflicted by knives are brutal to look at. I therefore suggest thinking of a knife as a “first” defense weapon vs. a backup or emergency weapon is a major mistake.
114 30th Ave. S., Nashville, TN 37212
Absolutely, yes, in Tennessee where I practice. Guns, knives, cars, beer bottles, picture frames, baseball bats, chairs, an uninstalled kitchen sink...you name it, the utilization of all of those (even if used to defend yourself) will potentially be characterized as a “deadly weapon” in charging an individual with an Aggravated Assault (or even, an Attempted Murder) warrant.
Remember, police officers are not attorneys and, even though they generally mean well will often times, charge the most serious crime available to “fit” the facts. The hope is to get a prosecutor who is seasoned enough and who can think outside the box to dismiss a self-defense case (or mutual combat if a primary aggressor cannot be identified given the facts of the case) as use of justifiable force regardless of the instrument used.
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
1) Under Maine Law, not every knife is a “dangerous weapon.” The case on point is State v. Jones, which holds:
A plain language reading of the concealed weapons statute reveals that the Legislature intended to prohibit persons from concealing certain types of weapons and knives based upon their design or primary function. 25 M.R.S. § 2001-A(1)(B). The statutory scheme expressly prohibits bowie knives, dirks, and stilettos from being concealed and expressly exempts knives used for hunting, fishing, and trapping from the statute’s prohibitions. 25 M.R.S. § 2001-A(1)(B), (2)(C) (2011).
Even though most knives, including the knives at issue here, are capable of causing serious bodily injury, the plain language of the statute establishes that the Legislature did not intend to prohibit the concealment of all knives. Rather, the statute expressly prohibits the concealment of only those knives that are specifically designed to be “usually employed in the attack on or defense of a person.”
For purposes of the criminal code, however (Title 17-A section 2), ANY knife can become a dangerous weapon if it “in the manner it is used or threatened to be used is capable of producing death or serious bodily injury.” This likely is a distinction without a difference. When someone comes at you with any significant knife, his intent isn’t visible, only the knife.
2) This is related to item 1 above. There is at least one case I am aware of where an “Escrima” technique was used by an old man to inflict numerous shallow cuts on two attackers. If the harm actually inflicted is peripheral, and could with a straight face accompany testimony that “I was just making him let go by cutting the backs of his fingers,” the jury probably wouldn’t find the necessary “intent” to cause death or serious bodily injury.
Note also that in Maine, Felony Aggravated Assault may be committed where one inflicts “Bodily injury to another with use of a dangerous weapon.” If the knife is a roofing knife and the cut peripheral, the result is different than a Bowie knife used to make the same cut. The foregoing does not resolve the separate question of whether the use of a dangerous weapon is ALWAYS deadly force.
Unless the item is a firearm, non deadly force may be inflicted with any knife, hence the lower threshold standards for justifying use of ANY knife than ANY gun.
Kenneth D. Willis
Cherry Hills Village, CO 80113 and Jackson, WY 83001
Here is the answer for Wyoming:
W.S. 7-22-101(iv) “Deadly force” means force that is likely to cause death or serious bodily injury;
Sec. 6-1-104(a)(iv). “Deadly weapon” means but is not limited to a firearm, explosive or incendiary material, motorized vehicle, an animal or other device, instrument, material or substance, which in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury;
Sec. 6-1-104(a)(x). “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment of the function of any bodily member or organ;
So theoretically you might say that a knife is not a deadly weapon under the statute unless “the manner [in which] it is used or is intended to be used is reasonably capable of producing death or serious bodily injury.” It might seem if one did not intend to cause death then the knife was not used as a deadly weapon. I don’t see a Wyoming Court buying that argument and I think a knife is always a deadly weapon in Wyoming.
Here is the peculiar answer that Colorado would give this question:
(d) “Deadly physical force" means force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death.
(e) “Deadly weapon” means:
(I) A firearm, whether loaded or unloaded; or
(II) A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.
(III) and (IV) (Deleted by amendment, L. 2013.)
(p) “Serious bodily injury” means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
In Colorado a knife is clearly a deadly weapon but you don’t know if you are using deadly force until you see if the force you used “does, in fact, produce death.” A knife is defined as a deadly weapon no matter how it is used.
The Colorado Court of Appeals has said in at least one case that if nobody dies it’s not a deadly force case because of the peculiar definition that Colorado has for “Deadly Physical Force.” Then it’s an excessive use of non-deadly force case, I guess.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month for the second installment of our Affiliated Attorneys’ comments on this topic.
Click here to return to July 2016 Journal to read more.