Claiming self defense when carrying a concealed weapon

by: Jason Osbourn

07/26/2016 03:09 PM EST
  self defense  

MCL 750.227 makes it a felony for a person to carry a concealed weapon (CCW). The statute specifically identifies several types of weapons: pistol, dagger, dirk, stiletto, double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon. Until recently, self defense was not understood to be an available defense to CCW. People v Hernandez-Garcia, 477 Mich 1039 (2007). The jury instruction based on this and other case law made clear that it does not matter whether a person was carrying the weapon for their own protection. M Crim JI 11.8. This makes sense in the context of the weapons specifically identified by the statute. A person makes the decision to conceal a weapon before the need to use it arises. Therefore, that person cannot claim self-defense during the period of time the weapon was concealed prior to the moment they decided to use the weapon.

The difficulty, which the Michigan Supreme Court recently addressed, arises when a person is carrying a weapon which falls under the category of “other dangerous weapon.” This catch-all is designed to address what the military describes as “weapons of opportunity.” These are objects which have an innocuous purpose but can be employed as weapons. Think of many of the weapons from the boardgame Clue - the lead pipe, wrench, candlestick, or rope. These objects may not be intended as weapons but can nevertheless be as lethal as a gun or knife if used as such. In our daily lives, people carry all manner of dangerous objects which they never intend to use as weapons. A mechanic might carry a screwdriver, a plumber might carry a wrench, or a warehouse worker might carry a box cutter. Obviously, the legislature did not intend to make criminals of these people. So how do we filter them out?

It all comes down to intent. A person violates the statute with an “other dangerous weapon” when they carry the object specifically because of its potential to do violence. A warehouse worker can have a box cutter in his pocket because he intends to use it for his job, not to do anyone any harm. Compare that with the highjackers of Flight 93 who carried box cutters specifically to do others harm. Though the object, a box cutter, is the same in both circumstances, under Michigan's CCW law it would be legal for the warehouse worker to carry it and illegal for the highjackers to do the same.

This brings us to People v Triplett. Jason Triplett was charged with felonious assault, carrying a concealed weapon, and domestic violence. The trial court instructed the jury that self-defense was available for the felonious assault charge but not the concealed weapons charge. The weapon in question carried by Mr. Triplett was a box cutter, an “other dangerous weapon” according to the statute. Because it falls under this category, it was not considered a weapon until Mr. Triplett intended to use it as such. The Court held that “a defendant’s use or purpose for carrying an other dangerous weapon is always relevant to determining a defendant’s guilt under MCL 750.227(1).” Triplett, supra (internal quotations omitted). Because of this, the Court concluded that self-defense is available to a CCW charge when the defendant’s use of a concealed object converts that object into a dangerous weapon. In Triplett’s case, he may claim self-defense if he did not intend to use the box cutter as a weapon until he used it against others.

Though I agree with the Court’s decision to remand, I disagree with its ultimate conclusion. If the box cutter only became a weapon when Triplett used it as such, then it was never a concealed weapon. When it was in his pocket, it was just an object. Removing it from his pocket to use it as a weapon would have unconcealed it at the same moment it was converted to a weapon under the CCW statute. What the trial court must decide, instead, is precisely when Mr. Triplett intended to use the box cutter as a weapon. A conviction for CCW would be sustainable only if he ever had the intent to use the box cutter as a weapon prior to the moment he removed it from his pocket in self-defense.