Are ASP Baton Legal or not in Mass

[Coyote33]

I think I've got this right.

It comes down to MGL c269 s10b, which contains

"... whoever, 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 by imprisonment ..."

It appears that if you're carrying an ASP, a LEO can make it a felony by arresting you for disturbing the peace.

ETA: I missed hotpastrami's post, which covered all of this.
EATA: Even the first offense has a 2.5 year possible sentence, so this is a lifetime DQ.

Google site:northeastshooters.com asp baton illegal for a list of previous threads.

So, if you are not arrested for something else, is it illegal?

 

[rlee]

So, if you are not arrested for something else, is it illegal?

I could find nothing that made an ASP/billy illegal absent an arrest.
As hotpastrami pointed out(post #25), if you are found with an ASP, you're entirely at the mercy of LE.

 

[rlee]

The way the law is phrased, it seems that a conviction for the disturbing the peace charge is not required for the dangerous weapon charge to stand.

Is this true?

 

[OfficerObie59]

The way the law is phrased, it seems that a conviction for the disturbing the peace charge is not required for the dangerous weapon charge to stand.

Is this true?

Correct. The intent of the statute is to prevent use of such weapons at the time of arrest. Your susbsequent disposition on the underlying offense would be irrelevant.

A quick overview of the statute:

First, the dangerous weapons laws in 269/10(b) apply to carrying ONLY on ones person on in their vehicle. It does not criminalize possession in a home, place of business, etc.

The law then breaks down into two categories, Per Se Dangerous Weapons and Non-Per Se Weapons Possessed During Arrest.*

Per Se DW's are those specifically prohibited in the statute: stillettos, double edged knives, knives w/ automatic springs (switch blades), various martial arts weapons, etc.

However, if a person possesses a billy club or other dangerous weapon not necessarily listed while being arrested for 1) a breach of peace/disturbing the peace, or 2) an outstanding warrant for a non adjudicated crime, they can face the up to 5 year penalty, same as the per se offense.

Now, whether an ASP might be considered a billy club will have to be determined by case law; I would say it is not, but I wouldn't want to be the test case. Current case law says that in determining whether an item is indeed a dengerous weapon under this second category, police must consider 1) the nature, size, and shape of the item, and 2) the manner in which it was handled or controlled. Comm. v. O'Connor, 7 Allen*583 (1863); also see Comm. v. Turner, 59*Mass.App.Ct.*825 (2003) where a subject could not be charged under this statute after an officer in Boston made a warrant arrest and discovered a simple non-spring loaded folding knife in his pocket, as the knife was not used in a manner capable of causing serious harm or threat of harm at the time of his arrest.*

Thus, if an ASP is determined *not to be a billy club, one would have to use it in a dangerous manner at the time of their arrest for warrant or breach of peace to trigger this felony.

FWIW, keep in mind the second category isn't something most cops routinely deal with or charge regularly, so you have to hope the cop arresting you is aware of all the case law and the factors required to charge.

 

[In God We Trust]

I beg to differ.

First of all, I doubt you saw anybody take 4 shots to the head from a LEO. Thats considered deadly force and all depts are very strict about where to hit with the baton. Extremely strict.
.

Is that so?

 

[rlee]

...
Thus, if an ASP is determined *not to be a billy club, one would have to use it in a dangerous manner at the time of their arrest for warrant or breach of peace to trigger this felony.
...

So in other words, it seems that in order for the DW charge to NOT be applied by either the arresting officer or the District Attorney, both the LEO AND the DA have to determine that an ASP isn't a billy club AND the arresting officer must represent that it wasn't used in a threatening manner.

Yes?

 

[OfficerObie59]

So in other words, it seems that in order for the DW charge to NOT be applied by either the arresting officer or the District Attorney, both the LEO AND the DA have to determine that an ASP isn't a billy club AND the arresting officer must represent that it wasn't used in a threatening manner.

Yes?

The case law isn't defined enough for a precise answer--we can only suppose.

My first post on that point was intentionally vauge because we have little case law on the topic. We do know from the recent case that an ASP is not a balckjack, but is a billy club the same as a blackjack? I don't know, and thus I don't know what O'Connor factors would apply. Remember, guessing at future case law can be a dangerous activity.

As for the ASP, if it is indeed a billy club, I would think it's direct inclusion in the statute would save it from being subject the O'Connor "nature, shape, and size" assesment but not the "use" assement. That's my personal opinion, FWIW.

Procedurally, there's not that much interplay between the police and DA. It's more of a hand off in most jurisdictions. I don't think "agreement" is the correct term as it seems to assume they got together and made a decision--I would say the police and DA they would have to arrive at the same conclusions to fo forward, but even then it doesn't mean they will.

The police would charge at the time of arrest. The arrestee would go to court and be arraigned on the charges as alleged by the police (the only pre-arrest PC judicial assesment would be a Jenkins hearing). Once it gets to court, the DA assesses the case and decides what charges they want to pursue, dismiss, bargain, etc. On that note, prosecutorial discretion is quite broad--the DA could choose not to pursue charges because they don't want to litigate an unsettled issue like this or because they simply have too many cases on the docket that day. What is NOT going to happen is the cops calling the DA at 2am to ask if they can charge this. They'll charge it on their own and send it to court where the DA takes it from there.

 

[rlee]

...
The police would charge at the time of arrest. The arrestee would go to court and be arraigned on the charges as alleged by the police (the only pre-arrest PC judicial assesment would be a Jenkins hearing). Once it gets to court, the DA assesses the case and decides what charges they want to pursue, dismiss, bargain, etc. On that note, prosecutorial discretion is quite broad--
...

If the arresting officer did not include the DW charge, couldn't an ambitious DA tack it on?

 

[OfficerObie59]

If the arresting officer did not include the DW charge, couldn't an ambitious DA tack it on?

He could, but in practice, unless this is a case that is part of something bigger, it probably won't happen absent an egregious violation by the arrestee. The average ADA right out of law school simply doesn't have the time to make the dozens and dozens of cases in their caseload more complicated.

Plus, if we're talking about a case where the only charge was disturbing the peace, usually those will be tried by police prosecutors anyway and will likely never be seen by a DA.

 

[wolf223]

For what it's worth, I have a little first hand experience with ASP and other batons and they are not very effective weapons. I watched a skinny kid take about 3-4 direct shots to the head with an ASP and keep on fighting like it was nothing more than a bitchslap. He was in some pain afterwards, but at the time it had little effect.

For something to keep in the car, get a 4 or 6 cell Maglite or a bat. You may be questioned about the bat if stopped, but it's not illegal and of course you don't have to answer any questions.

a eFin flash light over a cool expandable baton? really?


i once punched a dude right in his face and it didn't faze him. i turned around and ran. but that was in high school.


a "dude be good" stick is what you make of it and how you use it. hit the soft spots. it's easier. -allegidly

 

[ablediver]

A Mag-Lite 3 C/D cell with foam pipe insulation around the head tightly taped. Add to this an 18 in. braided circular leash taped to the butt. I had this in my cab as a dieseljock. It will take out a car window and will make a lasting impression on any receiving end .

 

[Rob Boudrie]

If a baton is used for protection

It is only a baton when wielded by an agent of the state. When an ordinary citizen uses such a device, it is a club, bludgeon or blunt instrument.

 

[556USER]

I keep a 16" long piece of 1/2" hydraulic hose under the front seat of my truck. Is that OK? You never know when you are gonna be accosted by a bad monkey. LOL

 

[mjbff]

its not illegal to be illegal Massachusetts ,Remember ?

 

[boilermaker]

I have wanted to carry an ASP while running. One run last year, which finished at night and in the rain, left me weirded out as people would slow down, or outright stop in front of me and idle until other cars would come into the road. I realized my handling a gun after a 15 mile run would be less than ideal and thought an ASP would be perfect but never knew how small they got. I realized they were illegal, but better than the alternative.

 

[Talon3]

under the dangerous weapons law, they are a felony to posess if amd only if charged + convicted of disturbing the peace.

Or if arrested on a warrant, while in possession of said item.