The Board Game Clue & the Question of Whether a Rope is a Deadly/Dangerous Weapon

Perhaps unsurprisingly, my favorite board game is Clue, or, as it is called in other countries, Cluedo. Part of it is the history of the game:

In 1944, Anthony E. Pratt, an English solicitor’s clerk, filed for a patent of his invention of a murder/mystery-themed game, originally named “Murder!” The game was originally invented as a new game to play during sometimes lengthy air raid drills in underground bunkers. Shortly thereafter, Pratt and his wife presented the game to Waddingtons’ executive, Norman Watson, who immediately purchased the game and provided its trademark name of “Cluedo” (a play on “clue” and “Ludo”, which is Latin for “I play”). Though the patent was granted in 1947, due to post-war shortages, the game was not officially launched until 1949, at which time the game was simultaneously licensed to Parker Brothers in the United States for publication, where it was re-named “Clue” along with other minor changes.

Part of it is the 1985 movie version, in which a perfectly puckish Tim Curry chews the scenery and commits the murder, at least in one of the three alternate endings, which my nine year-old self regarded as a genius move. The movie led me to write my first film review as part of an assignment for English class. I think I still have a copy of it somewhere. The board game has even come up in a few court cases, including one that involves a very interesting question.

In Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006), the Ninth Circuit noted that

This case presents the question whether a state prisoner who contends that he is actually innocent, but whose principal witness is coerced by the state into not testifying on his behalf, may pursue his federal constitutional claims in federal court notwithstanding his failure to comply with all of the applicable procedural prerequisites.

In addressing this question, the court had to determine whether the defendant — Roger Smith — had established that he was not carrying a “deadly weapon” or a “dangerous weapon” at the time of the (felony) murder that led to his conviction. According to the dissent, Smith failed on this front because he had a rope:

Then there is the rope. Smith’s trial attorneys both swore out affidavits stating that Smith admitted to carrying the rope into the Konzelman residence and Edmonds stated that they took it in case they should need to restrain their victims. Nothing in the record contradicts these assertions. Our legal reporters are replete with cases where criminals have used ropes as weapons….[FN39] Oregon’s statutory affirmative defense to felony murder requires a defendant to establish that he was not armed with any dangerous or deadly weapon; it is insufficient to establish that he was not carrying the murder weapon. Thus, even if a reasonable juror concluded that Smith never handled the crowbar, that juror may still conclude that Smith was armed with a dangerous weapon because he was carrying the rope.

The majority argues that it does not matter that Smith carried the rope because, the majority concludes, it is not a “dangerous weapon” under Oregon law….Oregon law defines a “dangerous weapon” as “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 death or serious physical injury.”…According to the majority, “[t]here is no evidence suggesting that the rope in this case qualified [as a dangerous or deadly weapon].”…This contention is absurd. Oregon courts have interpreted a “dangerous weapon” quite broadly. See, e.g., State v. Hill, 298 Or. 270, 692 P.2d 100 (1984) (en banc) (automobile); State v. Reed, 101 Or.App. 277, 790 P.2d 551 (1990) (concrete sidewalk); State v. Bell, 96 Or.App. 74, 771 P.2d 305 (1989) (cowboy boots); State v. Gale, 36 Or.App. 275, 583 P.2d 1169 (1978) (can opener); State v. Jacobs, 34 Or.App. 755, 579 P.2d 881 (1978) (hot water). When burglars attempt to tie up awakened victims in the middle of the night, the rope they use is certainly “readily capable of causing death or serious physical injury.”…At one point, Edmonds testified that they took the rope so they could bind the occupants if they awoke.

FN39 I note also that this perception is hardly limited to the legal world. For example, the popular board game Clue features a rope as one of the possible murder weapons. The others are the revolver, the lead pipe, the wrench, the candlestick, and the knife. See also ROPE (Alfred Hitchcock 1948).

The majority disagreed, concluding that

The dissent argues that Smith cannot satisfy this element of the affirmative defense because he admitted to carrying a rope into the Konzelman residence….This argument is concocted out of whole hemp by our creative dissenting colleague. The state wisely does not contend that the rope was a dangerous or deadly weapon; nor does Oregon law support such a contention. Under Oregon law, a “dangerous weapon” is defined as “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 death or serious physical injury” and a “deadly weapon” is defined as “any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury.”…There is no evidence suggesting that the rope in this case qualified under either of these provisions. Certainly it was not “specifically designed” for the purpose of causing death or serious physical injury. Nor does any evidence in the record suggest that the rope was “used” or “attempted to be used” during the commission of the offense-Mrs. Konzelman testified that she first saw the rope when she got out of bed after the attack was complete, and after waiting a period to make sure that the intruders were gone from the house. Finally, there is no evidence suggesting that either intruder “threatened” to use the rope, let alone threatened to use it in a manner “readily capable of causing death or serious physical injury.”…

Under Oregon law, the question whether an object is a dangerous weapon turns entirely on the circumstances in which it is used, attempted to be used, or threatened to be used. No one doubts that, in certain circumstances, a rope can be used to asphyxiate, and that when it is, it qualifies as a dangerous weapon. This realization, however, is very different from concluding that the rope in this case met Oregon’s definition of a dangerous weapon. It most certainly did not. The cases the dissent cites show how far off-the-mark its conclusion really is. The dissent points to cases finding that a can opener, cowboy boots, or a concrete sidewalk can be a deadly weapon. Again, it all depends on the circumstance-if used to stomp someone to death, cowboy boots might meet the statutory definition; if simply worn while engaged in a fatal fist fight, the boots would not constitute a dangerous weapon. The issue of the rope begins and ends with the fact that Smith did not use, attempt to use, or threaten to use it in any way, let alone in a way that might cause death or serious injury.

-CM