Non-firearm laws

Simon Yu said:

So some recent discussions I had elsewhere got me thinking about some of the laws related to non-firearm weapons in MD and I figured some people here might be able to clarify a few things.

First, here's a copy of the criminal code from MD's state laws dealing with weapons: http://pweb.netcom.com/~brlevine/md.txt up to date as far as I know.

Now, I've always interpreted "dirk knife" to mean double edged knives and "bowie knife" to mean any fixed bladed knife even though those aren't the correct definitions, but to this day I have no clue what the heck a "sandclub" is. Nothing in the dictionary or encyclopedia helps. I'm starting to wonder if it's just a really weird term for batons and the like or if it's a reference to some obscure weapon someone might have dreamed up in the past that scared the heck out of lawmakers even though no one understands why anyone would want to bother with one, like the fabled "ballistic knives."

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The other part I'm curious about is the way pepper spray and the like is first mentioned in the "dangerous weapons" section but later on is mentioned separately from the catchall term when discussing openly wearing things. I'm confused as to the legal status of pepper spray since it both seems to be separate from dangerous weapons yet listed under that section. Is it something like pepper spray was once legal to carry around but then things changed and now you can only carry stuff like bear spray openly?

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§ 4-201. Definitions (top)

In general
(a) In this subtitle the following words have the meanings indicated.

Antique firearm
(b) "Antique firearm" means:
(1) a firearm, including a firearm with a matchlock, flintlock, percussion cap, or similar ignition system, manufactured before 1899; or
(2) a replica of a firearm described in item (1) of this subsection that:
(i) is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition; or
(ii) uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

Handgun
(c)(1) "Handgun" means a pistol, revolver, or other firearm capable of being concealed on the person.
(2) "Handgun" includes a short-barreled shotgun and a short-barreled rifle.
(3) "Handgun" does not include a shotgun, rifle, or antique firearm.

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novus collectus said:

It is a type of sap. It kinda looks like the last two inches of a sock filled with lead shot and twisted off leaving another four inches or so to hold onto to swing. I believe it was used a lot for shanghighing people for ships' crews.

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ThatIsAFact said:

I am not a lawyer and this is not legal advice. In my opinion, the most important part of the "dangerous weapon" statute (Section 4-101) is this part: "(1) A person may not wear or carry a dangerous weapon of any kind concealed on or about the person. (2) A person may not wear or carry a dangerous weapon, chemical mace, pepper mace, or a tear gas device openly with the intent or purpose of injuring an individual in an unlawful manner." [italics added for emphasis]

The statute says that "dangerous weapon" as used here "includes a dirk knife, bowie knife, "switchblade knife, star knife, sandclub, metal knuckles, razor, and nunchaku," but that does not mean that anything that is not on that list is okay. Those objects are covered, but so might be just about anything that could be concealed and used as a weapon, except for the two objects that are explicitly excluded: "(ii) 'Weapon' does not include: 1. a handgun; or 2. a penknife without a switchblade."

Carrying of a "handgun" is, of course, generally prohibited by another statute, Section 4-203 -- although, as novus collectus notes, an "antique firearm," as defined, is excluded from the definition of "handgun" that applies for all of Title 4, Subtitle 2, which includes Section 4-203.

But I see no definition of "handgun" in Subtitle 1, which includes Section 4-101, the statute governing "dangerous weapons." Subtitle 1 uses the term, but does not define it.

This raises the arcane question of whether it would be legal to carry (let's say) a pre-1899 derringer, concealed, without a permit. That would not be prohibited by the 4-203 ban on carrying a "handgun," because the definition of "handgun" that governs Subtitle 2 excludes antiques. And, if the old derringer is deemed to be a "handgun" as that term is used in Title 1, then the derringer cannot be a "dangerous weapon." But if a court somehow construed the term "handgun" in Subtitle 1 to mean the same thing as it means in Subtitle 2 -- a definition which excludes antiques -- then it follows that antique handguns would also be excluded from the "handgun" exception under Section 4-101 -- and in that case, that antique derringer would be a "dangerous weapon," and carrying it concealed would be an offense.

If anybody knows if there is any case law regardng this question of carrying antique firearms, it would be of interest.

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novus collectus said:

The way I now read the statute, if someone had a modern derringer concealed, then they would be charged with a violation of section 4-203 as a "handgun". If they had a concealed antique derringer, then the charge might be under the "dangerous weapons" section 4-101. . . Now!! Let's say the antique derringer is carried openly. Since it is an antique, it is not covered under the 4-203 handgun prohibitions. Since it is not carried concealed, then as I read that section, the derringer is not prohibitted because the "dangerous weapons" section only prohibits concealed carry (for adults and if not worn with intent to illegally harm).

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ThatIsAFact said:

With respect to open carry of an antique handgun, I agree with your analysis -- it would not offend 4-101 unless done with intent to injure a person illegally. With respect to concealed carry of the antique derringer, it should depend on what definition of "handgun" is applied to 4-101. If it is the layman's common sense definition, under which a derringer is certainly a handgun no matter when it was manufactured, then concealed carry of the antique derringer is okay under 4-101, because a "handgun" is explicitly excluded from the 4-101 definition of "dangerous weapon." But if a court decided to apply the narrower Subtitle 2 definition of "handgun" (even though the "dangerous weapon" law is not part of Subtitle 2), then the antique derringer would be removed from the scope of the 4-101 "handgun" exception and it could be counted as a "dangerous weapon of any kind."

I hope somebody can come up with the case you are remembering, because it might be instructive.

This is not legal advice, nor is it meant to encourage anyone to carry antique firearms, whether openly or concealed.

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On May 10, 2000, appellant entered the First National Bankof North East in Elkton, Maryland. One of the bank tellers,believing that she observed a suspicious bulge in appellant’sjacket, contacted the Elkton Police Department

...He also testified that appellantexplained, at the time, that the firearm “wasn’t real,” but when asked if, when the trigger was pulled, the firearm shot aprojectile out of the muzzle, appellant responded that it would. Finally, Officer Odom asked appellant if, when fired, the gun was capable of killing somebody, and appellant responded that it was.

...The jury convicted appellant of carrying a concealed dangerous or deadly weapon, pursuant to section 36 of article 27of the Maryland Code (1957, 1996 Repl. Vol., 2001 Supp.). Atimely appeal was filed to this Court

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Appellant correctly points out that a pistol is not amongthe type of weapons designated by section 36 as dangerous ordeadly per se. Appellant and the State both acknowledge,however, that the trier of fact is permitted to determine whetherthe instrument constitutes a “dangerous or deadly weapon,” basedon the circumstances. See Anderson v. State, 328 Md. 426, 438
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- 48 -(1992). In Anderson, the Court of Appeals explained that such adetermination requires a finding, based on all of thecircumstances, that the person had “at least the general intentto carry the instrument for its use as a weapon, either ofoffense or defense.” Id. Whether a defendant possessed therequisite intent is a question of fact to be determined by thejury.

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In Shipley v.State, 243 Md. 262 (1966), the Court of Appeals set forth thestandard by which to determine whether a weapon is concealed within the meaning of section 36, stating:
By a recognized test a weapon is concealed ifit is so situated as not to be discernible byordinary observation by those near enough tosee it if it were not concealed who wouldcome into contact with the possessor in theusual associations of life, but absoluteinvisibility is not required; since ordinaryobservation does not extend to a searchunusually careful, thorough or detailed, madebecause of suspicion that contraband which isnot visible by ordinary observation may inactuality be present

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ThatIsAFact said:

I skimmed through the ruling. It is interesting-- thanks for digging it up. But it does not speak directly to the issue we've been discussing, which is the meaning of the term "handgun" in the exception to the "dangerous weapon" law, Section 4-101.

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It appears that the defendant (aptly named McCracken) was a rather eccentric fellow, who, after carrying a cap-and-ball revolver into a bank in a not-too-well concealed shoulder holster, ended up serving as his own lawyer. He didn't do a very good job.

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(McCracken was actually charged the old Article 27, Section 36, which was the precursor to the recodified 4-101 that we've been discussing. The language was a little different but amounts to the same thing as the current law.)

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McCracken was well aware that his weapon was not a "handgun" as defined in the Maryland law that prohibits carrying a "handgun," as we've discussed above; that's why he carried a cap-and-ball. It appears that the trial court must have operated on the understanding that it was not a "handgun" for purposes of the "dangerous weapon" law either -- and if it was not an exempted "handgun," then it is certainly reasonable for the jury to conclude that it was a "dangerous weapon." But there is no indication in this opinion that McCracken even claimed that his weapon qualified for the "handgun" exception under 4-101, or appealed on that issue. And if he didn't challenge it, the court of appeals was no under obligation to address it.

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We will have to look for some other case, then, to find out whether any court has actually ruled squarely on the question of whether a cap-and-ball handgun is a "handgun" as the term is used in the exception to 4-101.

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novus collectus said:

From what I gathered from the ruling, it [the cap-and-ball revolver] is not a "handgun" and falls under "dangerous weapon of any kind" concealed.

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novus collectus said:

He had an actual lawyer. Whelan I think his name was.

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novus collectus said:

But still, it [4-101] says "a dangerous weapon of any kind" and so even though a handgun is not included in the definition of "weapon", a handgun may still fall under the "dangerous weapon of any kind" mention.

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novus collectus said:

If this is true, then technically someone caught with a concealed and loaded regulated handgun could be charged under the "handguns" section as well as the concealed weapon section because it comes under "any kind" by this logic.

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novus collectus said:

One thing to note, Maryland considers even cartridge revolvers made before 1899 to not be "handguns" in 4-201. Even a replica of an antique firing non-commercialy available ammunition should be considered not to be a "handgun".

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ThatIsAFact said:

Well, it is clear that McCracken was convicted under the "dangerous weapon" statute (Section 4-101). But it is not clear to me whether McCracken ever effectively asserted the defense that 4-101 did not cover him because he was carrying what we would all consider to be a handgun. Remember, the special definition of "handgun" that excludes non-fixed-ammo handguns is in Subtitle 2, and on its face that definition applies only to Subtitle 2. Subtitle 2 includes the prohibition on carrying a handgun (4-203), but it does not include the "dangerous weapon" law under which McCracken was prosecuted (4-101).

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At trial, according to the court of appeals ruling, McCracken ended up serving as his own lawyer, and he made some bad mistakes.

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No, I don't see how. As discussed earlier in this thread, 401-1 does say "a dangerous weapon of any kind," but it also explicitly defines "weapon" to include two exceptions: "(1) a handgun, or (2) a penknife without a switchblade." So there are indeed any number of objects that might be considered "a dangerous weapon" under the 4-101, depending on the circumstances, but there are two objects that can never be considered "a dangerous weapon" under 4-101: "a handgun," or "a penknife without a switchblade." If this is wrong, somebody please show me how.

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No, it seems to me that the legislature specifically tried to avoid that type of double jeopardy situation by explicitly excluding "handgun" from the "dangerous weapon" statute. So if you're carrying a handgun (without a permit), you're violating 4-203, and if you are carrying concealed any other "dangerous weapon," you're violating 4-101, but you can't be violating both at the same time (unless you have more than one weapon).

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The question is whether, if you are carrying a non-fixed-ammo handgun, you are violating any state law at all. By failing to include in Subtitle 1 a definition of "handgun," was the door left open to carry a loaded non-fixed-ammo handgun without violating either 4-101 or 4-203?

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I wonder why the prosecution dropped the McCracken case on remand.

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ThatIsAFact said:

..


...No, it seems to me that the legislature specifically tried to avoid that type of double jeopardy situation by explicitly excluding "handgun" from the "dangerous weapon" statute. So if you're carrying a handgun (without a permit), you're violating 4-203, and if you are carrying concealed any other "dangerous weapon," you're violating 4-101, but you can't be violating both at the same time (unless you have more than one weapon)....



...Yes, but again, the definition you are quoting is the special definition of "handgun" that is found in the definitions section of Subtitle 2, and that definition explicitly says, "In this subtitle the following words have the meanings indicated." So that definition clearly governs all of Subtitle 2, which includes 4-203, the anti-handgun-carry law. But the question is whether it also governs Subtitle 1, which contains the anti-dangerous-weapon law, which excludes coverage of a "handgun" but does not define the term.

I found a reference to a 1993 court opinion, Eldridge v. State, 329 Md 307, 314-315, that sounds like it might be instructive, but I can't find it on line.

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In Eldridge v. State, supra, this Court construed a statute which prohibited both thecarrying of a deadly weapon when concealed on the person as well as openly carrying adeadly weapon with intent to injure another. We held that allowing separate convictions ofa defendant, one for carrying a concealed weapon and the other for openly carrying the sameweapon, where the defendant, in the course of the same incident carried a weapon bothconcealed and open, was an absurd result. We stated:“We conjure up this scenario. Eldridge parks his car on the bar’s parking lot.He removes the starter pistol from the glove compartment, gets out of the carand puts the pistol in his pocket. He walks toward the bar and on the wayremoves the pistolfrom his pocket, checks it and replaces it in his pocket. Heenters the bar. In the men’s room he again checks the pistol and then pocketsit. Entering the barroom, he pulls the pistol from his pocket and at pistol pointcommits the robbery, threatening to kill the victim. Upon fleeing the scene heagain puts the pistol in his pocket. During the course of this conduct he carriedthe weapon concealed five times and carried it openly four times. Under thetrial court’s interpretation, Eldridge could be convicted of five offenses ofcarrying a deadly weapon concealed and of four offenses of carrying theweapon openly. He would be subject to a sentence of 3 years on each offensefor a total 27 years. This would be absurd. We cannot conceive that suchpyramiding of sentences reflects the intention of the Legislature.”Eldridge, 329 Md. at 314-15, 619 A.2d at 535 (footnote omitted).

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Turning to the statutes then at issue, the Courtobserved:“When it enacted the handgun control statute, Ch. 13 of the Acts of 1972, Art.27, §§ 36B-36F, the Legislature specifically addressed the matter of otherstatutesencompassing handguns, and it indicated its intent as to whichof thoseother statutes should no longer cover the use of handguns. Thus, prior to1972, Art. 27, § 36, had proscribed the carrying of concealed weapons and thecarrying or wearing of weapons openly with intent to injure, includinghandguns. Also prior to 1972, Art. 27, § 36A, had provided a maximumpenalty of three years'imprisonment for carrying ‘any... deadly weapon of anykind’ on public school property. Finally, prior to 1972, there was locallegislation regulating and penalizing certain uses ofhandguns. In the handguncontrol act of 1972, the Legislature dealt with the above-described statutoryprovisions,so as to prohibit the pyramiding of penalties under both the existinglaw and the new law for the unlawful use of a handgun. It amended Art. 27,§ 36, to expressly delete handguns from the coverage of the concealedweapons statute (Ch. 13, § 1, of the Acts of 1972). It further amended Art. 27,§ 36A, to provide that where the weapon carried on public school property is
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6The 1972 Handgun Control Act (Chapter 13 of the Acts of 1972).7Chapter 562 of the Acts of 1996 (repealing Article 27, § 448, which provided for athree year sentence and adopting § 449(e), which provided for a five year sentence, in itsplace).8Chapter 2 of the Acts of 2000 (amending § 449(e) to require that a person sentencedunder that provision receive not less than five years without the possibility of a suspendedsentence or eligibility for parole during those five years).-6-a handgun, the penalty provisions of § 36A do not apply, but instead, theoffender shall be sentenced in accordance with the penalty provisions of thenew statute (Ch. 13, § 2, of the Acts of 1972). Lastly, with respect to locallegislation regulating handguns, the Legislature stated (Ch. 13, § 6, of theActs of 1972):‘[A]ll restrictions imposedbythe law, ordinances, or regulationsof the political subdivisions on the wearing, carrying, ortransporting of handguns are superseded by this Act, and theState of Maryland hereby preempts the right of the politicalsubdivisions to regulate said matters.’”Id. at 613-14, 569 A.2d at 692-93, citing Whack, 288 Md. at 145-46, 416 A.2d at 269(footnote omitted). Emphasizing the point, the Court concluded: “‘in enacting the handgunact,[6]the Legislature was concerned with the matter of duplicative legislation. Where itdesired no duplication, it specifically amended or superseded those other statutes.”’ Id.,quoting Whack, 288 Md. at 147, 416 A.2d at 270.Teel argues that the present case is different from Frazier. He relies primarilyon thefact that, since Frazier, the General Assembly has greatly “increased the penalty forpossession of a firearm by a convicted person.” Pointing to the Maryland Gun ViolenceAct of 1996 amendments to the firearms statute since 1990 have drastically altered the landscape uponwhich the issue of merger must be examined. . . . Merger of carrying a handgun andpossession of a firearm by a convictedperson should now be required as a matter of course.”More particularly, he argues:“With respect to the amendments to Article 27, § 449, however, theLegislature did not include language specifically authorizing cumulativesentences for possession of a firearm by a convicted person and the lesseroffense of carrying a handgun.“At best, the failure of the General Assembly to expressly address theissue of merger when it increased the punishment for possession of a firearmby a convicted person makes its intentions unclear. But this would weigh infavor of merger, not against it. . . . ”We disagree. The legislative acts on which the petitioner relies were re-codificationsof the relevant general provisions relating to the illegal use of weapons. We said in PackShack v. Howard County, 371 Md. 243, 257, 808 A.2d 795, 803 (2002), that “‘a change ina statute as part of a general re-codification will ordinarily notbe deemed to modify the lawunless the change is such that the intention of the Legislature to modify the law isunmistakable’” (quoting Duffy v. Conaway, 295 Md. 242, 257, 455 A.2d 955, 962 (1983)).There is no indication in the Acts that the General Assemblyintended to modify the holdingin Frazier when it enacted the 1996 and 2000 Acts relating to the use of weapons. Thecontrary would appear to be more likely. Thus Frazier, which we decline to overrule, iscontrolling. In Frazier, aswe have indicated,we held that “[w]here [the General Assembly]desired no duplication, it specifically amended or superseded thoseother statutes" 318 Md.
at 614, 569 A.2d at 693 (quoting Whack, 288 Md. at 146, 416 A.2d at 270). Since Frazieronly increases in the permissible sentences for certain offenses have been enacted by theGeneral Assembly, which also has furtherlimited thetransferabilityof certain weapons andimposed additional requirements on dealers. In neither of the codifications at issue here wasreference specifically made to avoidance of duplication. In neither of the two statutorymodifications, has the General Assembly indicated that duplicative sentences under separatestatutory offenses, arising out of one incident involving handguns, are to be avoided

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Article 27 SEC. 36B.
Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry, or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor

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Handgun
36B [Repealed]


§ 36B. Wearing, carrying or transportinghandgun; unlawful use in commissionof crime.Repealed by Acts 2002, ch. 26, § 1, effective Octo-ber 1, 2002.Cross references. — For present provisions concerning wear-ing, carrying or transporting handguns and their unlawful use inthe commission of a crime, see §§ 4-202 through 4-205 of the Criminal Law Article

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(a) A person may not use an antique firearm capable of being concealed on the person or any handgun in the commission of a crime of violence, as defined in § 5-101 of the Public Safety Article, or any felony, whether the antique firearm or handgun is operable or inoperable at the time of the crime.

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