In Commonwealth v. Buttimer, the Supreme Judicial Court recently revisited a legal question that has arisen in the past, and which has been previously resolved, but never in a satisfactory way. The issue in Buttimer was whether someone could be convicted of armed assault to rob, or assault with a dangerous weapon, where the weapon was a firearm that was not capable of discharging a shot. It may seem like an academic question, but it comes up more than you might think. If the police allege that someone displayed or pointed a gun at someone else, the fact that the thing they pointed was a gun significantly increases the potential penalty, and moves the case from a misdameanor to a felony. However, in order to prove that the object was an actual gun, the Commonwealth has to prove that it was actualy capable of discharging a bullet. That means the object has to be recovered -- which happens a lot less than number of instances where someon points a gun at someone else.
An assault is an act that puts another person in reasonable fear of an imminent battery (a harful or offensive touching).
So, if someone points a gun at someone else, the fact that it appears to be a firearm is enough to make that person afraid, but is that enough to also make out an additional element that -- beyond just causing someone fear -- that the defendant did so with a dangerous weapon?
In 1970, the Supreme Judicial Court said it was, but the decision never made much sense to me. What the Court said was this:
The fundamental reason for permitting a conviction for simple assault on proof of apparent ability of the assailant to accomplish the attempted or threatened battery is that the public peace and order is affected by and dependent upon what is reasonably apparent, and not upon secret fact or reason rendering the assailant incapable of accomplishing the battery. The reason applies with even greater force to a case of apparent ability to accomplish a battery attempted or threatened by means of a firearm. The threat to the public peace and order is greater, and natural reactions thereto by the intended victim and others may be more sudden and violent than in cases where no weapon is involved. There is no reason why the rule of apparent ability should not apply to charges of aggravated assaults by means of weapons. It is sufficient to prove such a charge if the evidence shows an apparent ability to accomplish the battery by means of the particular weapon used. Thus, the mere fact that a firearm brandished by an assailant is known by him to be unloaded, or to be loaded with blank cartridges, does not entitle him to an acquittal on a charge of the aggravated offense of assault by means of a dangerous weapon.
The above analysis is essentially a non-sequiter. The Court observes that “the threat to the public peace and order is greater, and natural reactions thereto by the intended victim and others may be more sudden and violent than in cases where no weapon is involved,” and uses this observation to obviate an element of the crime -- that the alleged dangerous weapon was, in fact dangerous. This is the kind of mistake lawyers frequently try to teach juries to avoid -- using the excess of evidence of one element as a reason to fail to observe the complete absence of another. The Court starts with the observation that an otherwise non-criminal act becomes an assault without regard to the secret knowledge of the perpetrator because the act is a breach of the peace. If that reasoning is bolstered by the fact that the victim perceived a weapon, that makes the assault a more serious assault, but it does not justify a finding of an additional element that the weapon was, in fact, dangerous.
And now, with Buttimer, the SJC has reaffirmed this line of thinking that what matters is the apparent ability of the object to cause harm. That's a fine and good reason to warrant the victim's fear that they will be hurt -- making an otherwise non-crimnal act a crime. But the SJC uses the same evidence to establish the further element of the armed nature of that assault, which makes the crime a felony. It might make more sense if the Court were not explicitly doing so in an analysis of the degree to which the "public peace" is breached, but that's the ground on which the SJC decided to defend its decision. The answer should be that since what we are talking about is the degree of the breach of the public peace, the Court should only count the fact that the thing the defendant was holding appeared to be a weapon once -- to make the conduct an assault. To count it again toward a second element is unfair; the Court should have to look to some additional fact, like the operability of the gun, to prove that the conduct was not just a crime, but also a felony.