Section 1824. forward the aspect of 18 U.S.C. 924 (c) enhancing the penalty for the repeated use or display of a dangerous weapon during the course of criminal activity. Although the maximum punishment levels prescribed here are somewhat below those available under current law, it should be remembered that under the proposed Code the offender will also be subject to a separable punishment under section 1617 for any actual endangerment of life that he causes. The second sentence of subsection (b) provides that notwithstanding the provisions of part III of this title, the court may not sentence the defendant to probation but shall sentence him to a term of imprisonment of not less than five years if the offense is a Class C felony, not less than three years if the offense is a Class D felony, and not less than one year if the offense is a Class E felony. In addition, notwithstanding the provisions of subsection 2304 (a) and (b), such term of imprisonment shall run consecutively with any other term of imprisonment imposed upon the defendant. These grading principles are derived from the features of 18 U.S.C. 924 (c) providing for a mandatory minimum sentence of from one to ten years in prison and, in the case of a second or subsequent conviction, for the inapplicability of the normal probation and concurrent sentence options available to a district judge. In lieu of the one-to-ten year mandatory minimum sentence, the Committee has substituted a series of minimum terms dependent upon the grading of the offense. Although opposed in general to the concept of mandatory minimum prison sentences, the Committee believes that, in this instance, the minimum sentence provision serves a significant deterrent purpose and should be retained.50 49 SECTION 1824. POSSESSING A WEAPON ABOARD AN AIRCRAFT 1. In General and Present Federal Law This section prohibits the possession or placing of a concealed dangerous weapon aboard an aircraft. Its principal purpose is to prevent aircraft hijacking.51 This section carries forward, in somewhat modified form, the proscription in 49 U.S.C. 1472 (7). That statute punishes by up to one year in prison whoever, except for law enforcement officers of any municipal or State government, or of the Federal government, who are authorized or required to carry arms, and except for other persons so authorized under regulations issued by the Administrator of the Federal Aviation Agency, while aboard an aircraft being operated by an air carrier in air transportation, has on or about his person a concealed deadly weapon, or whoever attempts to board such an aircraft while having on or about his person a concealed deadly or dangerous weapon. The carrying of a concealed, unloaded gun aboard (or while attempting to board) an aircraft has been held to violate this statute based on the finding that such weapons are "dangerous weapons" within the meaning of the statute.52 However, in United States v. Dishman.53 the 49 The only other instance in which a mandatory minimum sentence has been provided is found under section 1811 (Trafficking in an Opiate). 50 It should be noted that, as under current law, the possibility of parole is not eliminated by this section within the "mandatory minimum" period. 51 See United States v. Ware, 315 F. Supp. 1333 (W.D. Okla. 1970). 52 See United States v. Cook, 446 F.2d 50 (9th Cir. 1971); United States v. Ware, supra note 51. 53 486 F.2d 727 (9th Cir. 1973). court, one judge dissenting, held that a starter pistol, capable of firing blanks but not of expelling a projectile, was not a "dangerous weapon under this statute since, absent evidence of its actual or intended unlawful use, it was not such a weapon as was inherently capable of producing death or great bodily harm. Another significant case dealing with the meaning of "dangerous weapon" under 49 U.S.C. 1472(1) is United States v. Margraf.5 In that case, a majority of the Third Circuit sustained the conviction of a man who attempted to board a commercial aircraft carrying a concealed pocketknife with a blade exceeding three inches in length. The court found that, under the circumstances,55 the knife was a "dangerous weapon" within the scope of the statute. In response to the defendant's petition for a writ of certiorari, the government noted in its brief that on February 8, 1973 (after the defendant's conduct in this case), the F.A.A. had circulated guidelines to assist those responsible for screening passengers boarding aircraft. In describing what property in possession of a passenger should be considered as a weapon or dangerous object, the guidelines, inter alia, listed "Knives-All sabres, swords, hunting knives, and such other knives considered illegal by local law." The government, after pointing out that the defendant's knife could lawfully be possessed and carried by him both in Pennsylvania, where he sought to board the aircraft, and in California, his destination, indicated that it had formulated a policy under which the guidelines of the F.A.A. would ordinarily be adhered to in determining which cases to prosecute under this statute. Accordingly, the government requested the Supreme Court to vacate the judgment of the court of appeals and to remand the case so as to permit the charges against the defendant to be dismissed. The government stated its position as follows: 56 It is true that the FAA's guidelines are not binding upon those addressed and leave room for the exercise of trained judgment in regulating the kinds of objects that passengers may carry on board aircraft. They do, however, represent an informed judgment by the expert federal agency charged with primary responsibility for assuring the safety of air commerce that only large knives or those considered illegal under state law should be considered weapons for this regulatory purpose. The Department of Justice has therefore concluded that prosecutions under section 1472 (7) should not be undertaken with respect to objects not proscribed under the guidelines, at least in the absence of unusual, aggravating circumstances, or where local law may be unduly lax in regulating the carriage of knives or other objects. (We do not, of course, concede that the decision of the court of appeals was wrong as a matter of law, or that the statute in question could never be applied to a knife such as petitioner's.) ... Since the present case presents no aggravating circumstances and involves no unduly lax local laws, petitioner should not be subject to prosecution. 54 483 F. 2d 708 (3d Cir. 1973) (en banc). 55 Among other things, the defendant had responded in the negative to a security officer's question whether he was carrying a knife. weapon, or other large metallic object. 56 Memorandum for the United States, No. 73-202, O.T. 1973, p. 5. The Supreme Court granted the government's request and remanded the case to the lower court for reconsideration in light of the government's position.57 2. The Offense Subsection (a) provides that a person is guilty of an offense if he possesses or places a concealed dangerous weapon aboard an aircraft. This formulation does not substantially depart from the current statute but, because of the general structure of the proposed new Code, the offense is defined in a more economical manner. Thus, there is no need to include a specific exception for law enforcement officers since such persons are protected by the defense of public authority in section 541. Similarly, whereas 49 U.S.C. 1472 (7) expressly covers attempts to board an aircraft, such conduct is embraced in the Code under the general attempt section (1001) and need not be separately set forth. The term "dangerous weapon" is defined in section 111 to mean a weapon, device, instrument, material, or substance, whether animate or inanimate, that as used or as intended to be used is capable of producing death or serious bodily injury,58 or a firearm or destructive device. The term "firearm" is defined in section 111 to mean a weapon that can expel, or that can readily be converted to expel, a projectile by the action of an explosive, and includes such a weapon, loaded or unloaded, commonly referred to as a gun, pistol, revolver, rifle, shotgun, machine gun, etc. The term "destructive device" is likewise defined in section 111 and means an explosive, an incendiary material, or a poison gas, in any usable form. These definitions, in combination, essentially carry forward existing interpretations of 49 U.S.C. 1472(1). For example, unloaded guns are expressly within the definition of "firearm" and thus are covered irrespective of any proof that "as used or as intended to be used" they are capable of producing death or serious bodily injury. The same is true of starter guns which, as noted in connection with the preceding section, are intended to come within the concept of a weapon that can "readily be converted to expel" a projectile." 60 With respect to dangerous weapons that are not firearms or destructive devices, such as knives, the Committee's formulation is intended to clarify current law. Such weapons will be considered as "dangerous" within the purview of this section only if as used or as intended to be used they are capable of inflicting serious bodily injury or death. Hence, if a person boards an aircraft carrying a concealed pocketknife or razor, he will not be guilty under this section unless it can be proved that he intended to use the item (or did use it) in a manner capable of causing serious bodily harm or worse. Such intent will often be able to be shown by the manner in which the weapon is concealed, or by statements or other actions of the defendant.61 However, there is no intention under this section to impose 57 414 U.S. 1106 (1973). 58 The term "serious bodily injury" is also defined in section 111. 59 The term "explosive" is also defined in section 111. 60 The Committee therefore disapproves and intends to overcome the decision in United States v. Dishman, supra note 53. 61 Where the weapon is a "firearm," the Committee views the potential misuse of the weapon and the danger to the aircraft and its occupants to be so great as not to require a showing of intended harmful use in order to obtain a conviction hereunder. 42-525-75-15 penal sanctions for the possession of any concealed object which merely has the capacity to be used in the furtherance of a crime aboard an aircraft. Such a prohibition would be far too broad and would extend, inter alia, to a toy pistol, knitting needle, letter opener, and the like, that are normally possessed for wholly innocent reasons. The Committee thus essentially endorses the court of appeals decision in Margraf, supra, although it has made the definition of "dangerous weapon" somewhat more rigorous by an explicit requirement of proof of an intended harmful use of the weapon 62 where the weapon is neither a firearm nor a destructive device. Although enforcement of this section will, of course, be in the discretion of the executive branch, the Committee wishes it to be known that it disagrees with the prosecutive policy announced in the Margraf case and would prefer that no such policy be applied under this section. In particular, that aspect of the policy that ordinarily hinges the determination whether to prosecute upon whether a person's possession of a concealed knife is unlawful under local law seems unreasonable. The issue under 49 U.S.C. 1472(7), as well as under this section, is not whether a person's possession of a concealed weapon is otherwise legal but whether it is dangerous when considered within the framework of the particular dangers sought to be guarded against by those provisions-i.e., the potential of the weapon for use in aircraft hijacking or in committing another offense aboard an aircraft. Thus, in the Committee's view, if there is to be any formal policy limiting the class of prosecutable situations under this section, such a policy should be applied in terms of a uniform Federal standard and not by reference to State law. The conduct in this offense is possessing or placing a weapon aboard an aircraft. Since no culpability standard is specifically designated, the applicable state of mind that must be proved is at least "knowing," i.e., that the offender was aware of the nature of his actions.64 The element that the weapon was a concealed "dangerous weapon" is an existing circumstance. Since no culpability level is prescribed in this section, the applicable state of mind that must be established is, at a minimum, "reckless," i.e., that the offender was aware of but disregarded the risk that the circumstance existed.65 This is in part consistent with the interpretation of 49 U.S.C. 1472 (7) in Margraf, supra, where the majority read that statute as not requiring a specific intent to carry a concealed dangerous weapon; however, the majority intimated that the proper test under the current law was whether the defendant "should have been aware that it could be used as a deadly weapon and that others could have classified it as a deadly weapon." & This test, which comes close to imposing criminal liability under a mere negligence standard, has been strengthened by the Committee to require proof that the defendant was at least "reckless" with respect to the fact that the weapon he possessed was of the prohibited type i.e., his disregard of the risk constituted a gross deviation from the standard of care a reasonable man would have exercised. 62 As noted earlier, the facts in Margraf would have supported such a finding, by virtue of the inference to be drawn from the defendant's denial of his possession of a knife. 63 The placing on board branch of this section is intended to cover, inter alia, a person who places a dangerous weapon in his luggage or who checks luggage into which a dangerous weapon has been placed by another. 64 See sections 303 (b) (1) and 302 (b) (1). 65 See sections 303 (b) (2) and 302 (c) (1). 66 Supra note 54, at 712. 3. Defense Subsection (b) provides that it is a defense to a prosecution under this section that the actor's conduct was authorized by a regulation issued by the Administrator of the Federal Aviation Agency. This carries forward the existing exception in 49 U.S.C. 1472() for such persons, some of whom might not be deemed to come within the definition of a public servant to whom the general defense of public authority in section 541 is available. 4. Jurisdiction There is Federal jurisdiction over an offense described in this section if it is committed within the special aircraft jurisdiction of the United States. The special aircraft jurisdiction is defined in section 203 (c) and closely tracks present 49 U.S.C. 1301 (32). The extent of jurisdiction under this provision is not substantially different from that under current law, which refers to an "aircraft being operated by an air carrier in air transportation." 67 5. Grading An offense under this section is graded as a Class A misdemeanor (up to one year in prison). This retains the present penalty level under 49 U.S.C. 1472 (1). Although the conduct in this offense may be potentially very dangerous, the Committee determined that no higher grading was appropriate, in view of the existence of section 1617 (Reckless Endangerment), which will enable prosecution at a felony level of any person whose possession or placing of a concealed dangerous weapon aboard an aircraft actually causes another to be in danger of death or serious bodily injury. SUBCHAPTER D.-RIOT OFFENSES (SECTIONS 1831-1834) The offenses covered in this subchapter are inciting or leading a riot, arming a rioter, and engaging in a riot. On the whole, they represent a restatement of existing law on riot offenses. However, some important changes have been made. The scope of Federal jurisdiction over riot offenses has been narrowed in some areas and broadened in others, and the definition of "riot" has been narrowed. At common law a riot existed when three or more persons acted together with a common intent to accomplish some purpose by force or violence.1 As a breach of the peace, riot was punishable notwithstanding any lawful objective of the rioters; thus riot offenses have been committed by police and other civil officers armed with legal process whose actions far exceeded the bounds of duty." The determination of 67 The terms "air carrier" and "air transportation" are defined in 49 U.S.C. 1301 (3) and (10). 1 See Annotation, What Constitutes Riot Within Criminal Law, 49 A.L.R. 1135 (1927). 2 See 77 C.J.S. Riot § 3; 46 Am. Jur., Riots and Unlawful Assembly, § 13. |