*2
WALLACE,
Before WRIGHT
EAST,
Judges,
Circuit
District
Judge.*
*
East,
Judge
Oregon,
Honorable William G.
Senior
District
the District
sitting by designation.
tol,
pistol, as
refer
to it.”
we
OPINION
cylinder
bore
with a
has a
Judge:
EAST, District
approximately
or 22 cali-
22-thousandths
cyl-
eight
PROCEEDINGS
OF
ber,
I’d
bores
say,
STATEMENT
carry
inder which would allow
defendant-аppellant
Eu
Gerald
cylinder
eight
*3
The
blanks.
22-caliber
gene
(Dishman) was
Dishman
revolver
normal
rotates
as
Attorney’s Infor
under a United States
you
By cocking
hammer
the
would.
“attempting to
of
mation of the crime
placing
cylinder,
a live
the
would rotate
.,
.
.
...
аn aircraft
board
firing pin. The
directly under the
blank
having on or about his
and there
then
firing pin.”
weapon does have a fixed
con
person
a
caliber starter
a .22
question,
that
“Is
to the
dangerous
answer
weapon,”
cealed, deadly and
presently
capable
weapon,
made,
is
in violation of Title
U.S.C. Section
firing
projectile,”
re-
the Marshal
of
a
(l)-1
state,
sponded,
sir!”
“Not
in that
Dishman was convicted
sentenced
and
danger
Later,
if the
would
appeals,
after a trial
to the court. He
enough
weapon
to an
held close
asserting
of
search and
a claim unlawful
you
pow-
probably
dividual
could
receive
seizure,
further,
and
that
the District
testimony
der
established
burns.” Other
finding
Court erred in
that the
purpose
the
the
that
intended
and
of
use
сonstituted a
and
starter
cartridge fir-
was a blank
meaning
dangerous” weapon within the
ing pistol making
pop,
a loud
similar to
(l).2
proscription
the
and
subsection
toy cap pistol upon being
fired.
solidly plugged
barrel was
near the end
Facts
cartridge
rеtaining
cylinder
and the
January 27, 1972,
On
Dishman arrived
holes
bores were half filled with metal
boarding gate
at the
Air-
Western
holding
incapable
receiving
Flight 560,
regularly
lines
scheduled
cartridges.
Marshal,
when asked
flight
Angeles
from Los
International
briefly
“weapon”
describe
thе
how
could
Airport
City,
to Salt Lake
He
Utah.
capable
firing
projectile,”
be “made
presented
ticket,
boarding
his
received a
replied,
cylinder
“You would
the
take
pass
joined,
end,
at the
the line of
already
and the bores that
are
thе
passengers being processed through the
cylinder
that are at
time
the
magnetic
active field of the
metal de-
open,
you
half
bored those out with a
tecting device then in service. On two
they
drill
to where
would be
full
passthroughs by
successive
Dishman а
bore and then
cut
barrel off at the
high reading
presence
of the
of metal
frame,
weapon
end
could be
signaled.
When confronted
used to fire 22-caliber ammunition bul-
charge,
Marshal in
Dishman first denied
lets, projectiles.”
carrying any
he was
metаl
then
jacket
retrieved
pocket
from his
Construction of the Statute
handed to the Marshal
acknowledge
We
object,
saying, “Here,
forgot
I
I was
(l) together
carrying
companion
with its
testified,
this.”
subsec-
The Marshal
(proscribing
tions
“I took the
crimes abоard the
from the
I
defendant.
airplane)
geared
are
informed him
aimed at con-
he was under arrest
trolling
containing
carrying
growing
weapon
upon
ever
boarding an
peril
safety
threat
aircraft.”
of pis-
“It is a 22 caliber blank
pertinent
portions
2.
1.
The District
find-
Court stated
its oral
of subsection
ings
“except
: “I
also feel
.
.
.
officers
attempts
the context of
an aircraft
is a dan-
whoever
to board
...
gerous weapon.”
having
person
aircraft while
on or about his
deadly
dangerous weaрon,
a concealed
fined,
shall be
etc.”
traveling pub-
crime
property
commission of
aboard the
lives and
conspicuous
its utter ab-
aircraft
congressional pur-
lic. Further that
pose
sence.
all
as with
subsection,
behind
proscribing
of сon-
statutes
cealed
manifest
It is
dangerous” weapons
weapon
proscribed
must be one
availability
ready
generally, is to avoid
weapon per se
dangerous” weapon for
through
inherently
its construc
so
perpetration of a crime
use
tion:
Weapons §
94 C.J.S.
aboard
2(f), page
aircraft.
“
deadly
.
.
.
479;
Rep.
2 U.
House
§
1961,
one which in its intended or
Cong.
& Admin.News
S.Code
readily adaptable
Nevertheless,
is a criminal
the section
bodily injury.”
duce death or serious
proscribing
and certain
definite
statute
conduct,
Weapons,
page 489;
6(c),
94 C.J.S.
§
*4
e.,
of a concealed
the
i.
speaking,
Generally
deadly weap-
“[a]
dangerous” weapon when
“deadly and
likely
produce
on is one
to
or
death
no
aircraft,
and
no more
an
grеat bodily injury.” The character
less.3
implement
deadly weapon
of an
as a
attempt
Congress
to de
did not
by
capacity
is determined
its
to
dangerous”
“deadly or
fine the terms
injury,
toy,
flict death or
and a
or a
feasible, practi
finding
weapon,
not
this
candy pistol
ability
chocolate
has no
leaving
necessary
the
it to
or
cal
any injury
to commit a violent or
on
case,
ad
on an
in
determine
each
court to
person
another,
the
unless used as
weapon was dead
basis,
the
hоc
whether
People Vaiza,
a club. See
v.
244 Cal.
dangerous.
Rep. cited, 2 U.
ly or
House
App.2d 121, Cal.Rptr.
52
733
1961,
Cong.
at
Admin.News
&
S.Code
A
review
the
in
authorities
this
Accordingly,
in the
then
2570
2575.
pinpoints
circuit
the clear distinction
measuring
fitting the
process of
objects
the law makes between
that are
language of the
of this case
facts
“deadly
dangerous”
per
weapons
se
we are
itself
within
objects
by
and other
reason of their
by
guided
obliged
the
to and must
dangerous”
“deadly
use become
“a
statutory
truism that
cоnstruction
weapons.
proscribing an must
act
criminal statute
Per Se Rationale:
against
prose
strictly
construed
liberally
States,
the ac
in favor of
Price United
cution and
v.
156
950
F.
Resnick,
(9th
299
v.
Cir.
under con-
cused.” United States
126,
upon
L.Ed. 127
81
sideration forbade
57
an assault
an-
U.S.
S.Ct.
States,
dangerous
236
(1936);
weapon.
United
other
Ornelas v.
with
1956).
(9th
pointed
defendant
an
unloaded
in
threatening
manner
another. The
Discussion
certainly
court held
act
an as-
The material elements of the
sault but the conviction of
defendant
are:
offense
dangerous weapon
of assault with a
can-
1)
attempt
part
person
an
on the
of a
not be sustained.
aircraft;
board
offense,
“In order to constitute that
2)
having
person
then
on his
a con-
dangerous weapon must be used in
dangerоus
weapon.
cealed
making the assault. The use of a
necessary
Any
weapon
element of
what
distin-
developed
guishes
later
intent to make use of the
an assault with a
crime
dangerous” weapon
dangerous weapon
simple
from а
as-
dangerous”
crime,
any,
lawful use of
is committed
weapon
the aircraft
conduct with
aboard
or without
intent as to subse-
quent
of the statute.
use of
scribed
other
subsections
weapon
airplane. Any
while aboard the
un-
dangerous weapon “is one
It
of interest
to note that
A
none
sault.
great bodily
distinguished
produce death or
of the cases was Price
Use
consistently
Davis,
general
§
1970), and
267, at 252
whether
not a
tempted
tempted
Price
hold as
loaded
injury.’
to use it otherwise
ous
“If
fact;
in a
[61]
Rationale:
weapon
threatening manner at
429 F.2d
dangerous weapon.”
rule.
64.”
but the
a matter of
to strike with
defendant
it was
its
U.
as late
Witkin,
in the
S. v. Williams
context
when
courts
used,
or was not
conformity
as United States
manner
than
there is
had
California
has been
at 555
would be
law that
quite uniformly
it,
by pointing it
struck or
used, or at
(C.C.)
another, is
(8th Cir.
question
followed
attempt
danger
*5
Crimes,
one
un
at
F.
v.
the reason
their
ment
fear of
cause death or
rationale
ry.”
otherwise alluded to. We
son v.
of an
of the actual
herent
Cir.
F.Supp.
plаce
statute,
hands of another as a
1971);
respective statutes,
While
early
“capacity
such
government
State,
inert
inert
1333
a reasonable
cases,
for this was
decision,
Price
in the context of its own in-
and induce
United States
Wagner,
object,
оbject,
231 M.D.
(W.D. Okl.1970);
serious
Cook,
were
inflict death
relies
use of
but an
as must
submission.
person
bodily injury
not an
they
dealing
dealing
in the context
heavily upon
v.
suggest
F.2d 50
acknowledg-
must
Ware,
other
oversight
191
object
with
with
under
under
Jack-
inju-
A.2d
315
(Md.1963);
Wagner United
and United
v.
category
v.
States
fall
In this
1959) Bissеtt,
(D.Mass.
Cr.,
April
(9th Cir.
71-139-J
States,
weapon per WRIGHT, Judge se. (dissenting): Circuit disagree Respectfully, I and would af- Subsection non-intent judgment firm the of conviction. statute, *6 in no differ question position toy gun candy was intended ent gun than prevent passengers carrying from pair cоurse, of scissors. Of weapons aboard aircraft those or facsim- situation would different use were ilies which could used airplane made of a starter on an piracy. acts of air perpetrate skyjacking. used In that sit here is such an articlе. I would uation, position same one is hold meaning that it falls within the decoy bank robber is when uses gun, weapon”, as that and the use rationale would term is used apply. the statute. distinguish I am unable to this from cannot read into lan We in United used States v. guage proscription Cook, F.2d 50 dis- which has the majority opinion. cussed in the capacity to be used furtherance of I would affirm. Congress a crime aboard an aircraft.4 opener dagger; letter Examples: toy useable as a candy foun- A starter pen tain useable to assimilate a thing; lookalike useable as a real robbery. course of a knife; razor a businessman’s useable as a