you wanna come a little closer when you tell me I’m not dangerous?

Bruce Lee, David Carradine, Chuck Norris, The Karate Kid and Jackie Chan would be extremely unhappy with the Connecticut Supreme Court’s decision in State v. LaFleur [PDF], which held, quite sensibly, that bare hands, while possibly quite dangerous, cannot be an “instrument” under CGS 53a-3(7). The definition of dangerous instrument in the statute is:

“Dangerous instrument” means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a “vehicle” as that term is defined in this section and includes a dog that has been commanded to attack, except a dog owned by a law enforcement agency of the state or any political subdivision thereof or of the federal government when such dog is in the performance of its duties under the direct supervision, care and control of an assigned law enforcement officer;

So the question, simply, is whether a fist is a dangerous instrument. In order to get to the correct answer, the court has to get around several declarations in prior caselaw about what a dangerous instrument really is. For example:

53a-3 (7) requires that the circumstances in which the instrument is used be considered to determine its potential as an instrument of death or serious physical injury, but the instrument  need not actually cause death or serious physical injury.  . . . [Serious physical injury] is but a definitional component of an essential element. . . . If, however, an instrument has, in fact, caused a serious physical injury, it is considered dangerous ipso facto. . . .

The court correctly notes that if the only descriptor of a dangerous instrument is that it causes serious physical injury, then anything that causes seriously physical injury is automatically a dangerous instrument. The consequences of this would be rather absurd in that it would render the entire statutory scheme meaningless and collapse the hierarchical structure of the lesser included offenses. The Court concludes that the:

legislature intended the term ‘‘dangerous instrument’’ to mean a tool, implement or device that is external to, and separate and apart from, the perpetrator’s body.

The State argued that the definition should be ‘a means by which something is achieved’, relying on the infamous ”shod foot”¹ cases. In State v. McColl, the appellate court had held that “feet and footwear” do constitute a “dangerous instrument” under the statute. The supreme court distinguishes that as being an object that is separate from the human body and thus consistent with its opinion in LaFleur. This strikes me as rather contrived. Sure, it is an independent object, but it is such an integral part of everyone’s daily existence that it might as well be a part of the human body. How many people walk around without shoes? And what of those horrible, frightening skeleton shoes that look like a coat of paint on bare feet? It seems to me that there can be a distinction drawn between regular footwear, like sneakers and dress shoes and some fancier spy gadget shoes with steel shanks coming out of the tip, if that’s what the court is concerned about. Taking McColl to another extreme, would it be a dangerous instrument if someone got into a fist-fight wearing a pair of leather workman’s gloves? That seems pretty absurd too.

And what about Gunkata?

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¹I had to look up the meaning of the word “shod”. It means wearing a shoe. Did you know that “shod” is past tense of shoe? Now you do.