You cannot be convicted of carrying a dangerous weapon unless the government proves that you were capable of concealing the weapon on your person while you were carrying it.

In re D.R., No. 11-FS-1320 (decided July 31, 2014)

The Players: Glickman, Fisher, Steadman. Opinion by Judge Fisher. Cynthia Nordone for D.R. Trial judge: Patricia Broderick.

The Facts: During a heated altercation with his neighbors, appellant raised an 18 to 24 inch "sword" or "machete" above his head and threatened to disembowel one of said neighbors. This conduct led to appellant's conviction for carrying a dangerous weapon ("CDW"), in violation of D.C. Code 22-4504(a), and for a host of other offenses not relevant to the court's decision.

Issue: Did the government present sufficient evidence that the sizable machete wielded by D.R. was "capable of being concealed" on or about his person?

Holding: No. The record was barren of evidence regarding D.R.'s size or the clothing he was wearing at the time of the incident. Thus, the government could not prove that the machete was capable of being concealed on or about his person.

Of Note:

  • This opinion marks the DCCA's first interpretation of CDW's requirement that the weapon at issue be "capable of being concealed" "on or about" the defendant.
  • Following an analysis of the statute's text and legislative history, the DCCA determined that the concealment element referred to whether the weapon was capable of being concealed on/about the defendant at the time of the incident, and not to whether the weapon was capable of being concealed by a hypothetical average person wearing clothing aimed at concealing the weapon (as the Supreme Court had interpreted a separate federal statute with superficially similar language).
  • When one's client is charged with CDW for carrying a large weapon, one should argue that the weapon is not capable of being concealed because of its size, the defendant's stature, the clothing worn by the defendant at the time of the incident, or some combination of the above.
  • The less clothing your client is wearing at the time of his or her arrest for CDW, the better the odds of victory at trial.
  • This opinion does not apply to D.C. Code 22-4504(a)'s prohibitions regarding pistols. CK.