Use of a Deadly Weapon
Use of a deadly weapon is, like substantial bodily harm, a penalty enhancer rather than a separate crime.
4. Use of a Deadly Weapon
Punishments for criminal assault and battery depend on whether the crime was committed with a “deadly weapon.” NRS 200.471(2)(a)-(b); NRS 200.481(2)(a)-(b), (e).
- Nevada statutes do not define “deadly weapon,” but the Nevada Supreme Court has held that a weapon qualifies as a “deadly weapon” if it meets either of two definitions. Rodriguez v. State, 133 Nev. 905, 906, 407 P.3d 771, 774 (2017):
- The weapon is “inherently dangerous,” meaning that it “is any instrument which, if used in the ordinary manner contemplated by its design or construction, will, or is likely to cause a life-threatening injury or death.”
- The weapon fits a “functional” definition of deadliness, meaning that it is “any weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm or death.”
- The Nevada FLE requires test-takers to combine this definition of “deadly weapon” with the statutes defining assault and battery, allowing them to classify hypothetical fact patterns correctly.
- Test-takers need not memorize the precise language used to define a “deadly weapon” but should understand the two definitions and be able to apply them.
Use of a deadly weapon is a penalty enhancer on assault or battery, not a separate crime. First find the underlying assault or battery, then ask whether a deadly weapon was used, and a weapon qualifies if it meets either of two definitions.
The statutes do not define deadly weapon, but there are two definitions, and an instrument that satisfies just one of them is a deadly weapon. This is the key structural point: the two definitions are alternatives, not a single combined test.
- 1Inherently dangerous: an instrument that, used in the ordinary manner its design or construction contemplates, will or is likely to cause a life-threatening injury or death. The focus is on the thing itself, used as intended. A loaded firearm used to shoot, a knife used to stab: used the ordinary way, these are likely to cause life-threatening injury, so they are inherently dangerous regardless of the particular facts.
- 2Functional: an instrument that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing substantial bodily harm or death. The focus shifts to how it was actually used. An everyday object that is not dangerous in the abstract becomes a deadly weapon when the manner of its use makes it readily capable of causing substantial bodily harm or death. A heavy wrench is just a tool; swung hard at someone's skull, it is a deadly weapon. The reverse is also true: a pillow is not readily capable of causing substantial bodily harm in an ordinary swat, so it is not a deadly weapon in that use. This definition reaches threatened and attempted uses, not just completed ones.
The two definitions are alternatives. Do not treat them as a single combined test that requires both to be met; an instrument that satisfies just one of them is a deadly weapon.
You do not need to memorize the exact wording of either definition. You need to understand the two ideas and apply them to the facts.
Deadly weapon is a penalty enhancer on assault/battery, not a separate crime.
Two steps: find the assault or battery first, then ask whether a deadly weapon was used.
two definitions, either one qualifies.
inherently dangerous: used the ordinary way its design contemplates, it will or is likely to cause life-threatening injury or death (look at the object)
functional: under the circumstances of use, it is readily capable of causing substantial bodily harm or death (look at how it was used)
The functional test makes everyday objects deadly when used a deadly way, and lets inherently harmless uses off the hook.
It also reaches threatened and attempted uses, not just completed ones.
You apply the two ideas; you do not memorize the wording.
During a robbery dispute, a man swings a heavy steel crowbar full force at a clerk's head, and the clerk barely dodges.
Suppose instead the man, in anger, swats the clerk on the arm with a rolled-up newspaper, which cannot cause anything beyond a sting. There is still a battery, the willful unwanted contact. But under the circumstances, a rolled-up newspaper used to swat an arm is not readily capable of causing substantial bodily harm or death, and a newspaper is not inherently dangerous either. Neither definition is met, so it is not a deadly weapon, and the deadly-weapon enhancer does not apply.
If the man instead points a loaded firearm at the clerk to frighten her into compliance, the firearm is readily capable of causing substantial bodily harm or death in the way it is threatened to be used (and it is inherently dangerous besides), so it is a deadly weapon even though it was never fired.
An option that requires the object to be designed as a weapon, says an everyday object can never qualify, or requires BOTH definitions to be met.
The functional definition makes any instrument a deadly weapon when, as used, it is readily capable of causing substantial bodily harm or death; the two definitions are alternatives, so either one suffices.An option that requires the weapon to have actually caused injury, or to have been fired or actually used, before it can be a deadly weapon.
The functional definition expressly reaches attempted and threatened uses and turns on being readily capable of serious harm, not on harm in fact.A 'No' resting on a true-but-irrelevant fact: the object is normally harmless, the cut turned out shallow, the victim was not hurt, or the skull did not actually fracture.
The functional definition turns on the weapon's capability under the circumstances of use, not on the object's everyday character or the severity of the harm that in fact resulted.An absolute 'Yes' that any object used in a battery, any metal object swung, or any object pointed at a person is automatically a deadly weapon.
The test is whether, under the circumstances, the instrument is readily capable of causing substantial bodily harm or death; a harmless use does not qualify.an assault or battery question that pauses on the instrument, what it was, how it was wielded, whether it could really hurt someone.
confirm the underlying assault or battery.
Then run the deadly-weapon enhancer using either definition.
Ask: is this thing inherently dangerous, meaning that used the ordinary way its design contemplates it would likely cause life-threatening injury or death?
If not, switch to the functional test: under the circumstances in which it was used, attempted, or threatened, was it readily capable of causing substantial bodily harm or death?
Either one makes it a deadly weapon.
Watch for the decoys: an option that requires the object to be designed as a weapon, that requires both definitions, that waves off an everyday object used a deadly way, or that demands the weapon actually caused injury or was actually fired.
During a confrontation in a garage, one man grabbed a heavy steel wrench and swung it with full force at the head of another man, intending to strike him. The second man jerked aside and the wrench missed by inches. A wrench is an ordinary tool not designed as a weapon, but a heavy steel wrench swung hard at a person's head is plainly capable of fracturing the skull. The man who swung had no lawful justification.
Was this assault committed with a deadly weapon?
Annoyed during a minor squabble at a picnic, one guest swatted another guest lightly on the shoulder with a rolled-up paper plate. The swat was an unwelcome contact but could not, in the way it was delivered, have caused anything more than a faint tap. A rolled-up paper plate has no capacity to cause serious injury, and the swat caused none. The guest who swatted had no lawful justification for the contact.
Was this battery committed with a deadly weapon?
In the middle of a dispute, a man pointed a loaded handgun at a store clerk and demanded that she stay still, meaning to frighten her into compliance. He never pulled the trigger and the clerk was not physically touched or injured. A loaded handgun pointed at a person at close range is plainly capable of causing death if fired. The man had no lawful justification for threatening the clerk.
Was this assault committed with a deadly weapon?
During a brawl in a kitchen, one cook seized a large chef's knife and slashed it across another cook's forearm, intending the cutting blow. The blade is built to cut and, used to slash a person, is plainly capable of inflicting a grave wound. Here it left only a shallow nick that healed within days and caused no lasting harm. The cook who slashed had no lawful justification.
Was this battery committed with a deadly weapon?
In a fight outside a stadium, one fan grabbed a full glass beer bottle and smashed it down hard onto the crown of another fan's head, intending the blow. The bottle is an ordinary container, not built as a weapon, but a full glass bottle driven down onto a person's skull at full force is plainly capable of cracking the skull. A prosecutor argued the bottle was not a deadly weapon because bottles are not weapons and this one did not break the victim's skull.
Was this battery committed with a deadly weapon?