good morning please the court my name is london i'm just an federal public defender for the district of nevada and i represent as word selves i would like to reserve one minute for a bottle this case involves a fac to add a definition that included three parts the first known as the inherently dangerous test provided any instrument which if used in the ordinary manner contemplated by design and construction is likely to cost of stanch least bodily harm or the second which is the primary focus of my argument today provides 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 and the third provides a laundry is whether the statute fails to provide notice to the ordinary person so can somebody figure out what contact is prohibited from the statue and the second is whether it authorizes jurisdictions that have similar statutes although i would note for whatever reason the statutes tend to call make some distinction between deadly weapon in dangerous weapon in the language used in s section b is typically the language used in the dangerous weapon part of the statute but i was unable to find any federal case where the  certainly that would be clearer and make it a really bright line test but i'm not sure that's necessary with the weapon with your client because that virtually attack the victim well your honor under the statute i think that's the problem with the statute under the statute anything is a deadly weapon there's no way for an ordinary person to determine what is the deadly weapon the things that we would comment we think of as a deadly the statute on an ass and find basis what's really interesting is a couple years after they look at this case they actually clarify that that wasn't the correct standard in the  seen a case in which they were challenged and i could not find a federal case where they had been challenge for facially for tell us something that enforcement well i'm going to focus to specific wording of the statute because it doesn't simply say that something has to have caused but it has to be readily someone unfortunately know your honor the way that you actually found out if i have something else that is a deadly weapon is if you actually killed somebody and then it's a deadly weapon we sort of look at it in the reverse which is something that city of chicago versus  can't do you can't look at you don't like that if someone thought about it ahead of time they would know that stuffing something into a giant trash compactor and smashing them you don't think they would know ahead of time that that's readily capable of killing the appropriate analysis here and he's ignoring the other half of the analysis the basic argument is there are simply too many items out there that can potentially constitute deadly weapons and therefore the statutes fake the problem with that argument is i think best addressed on page twenty one of our brief in this case from the eighth circuit united states worse as more where we've got a long quote but the eighth circuit held same thing the same thing all courts have always held on the functional test and that is the item is only part of the issue the primary issue is under the used test under the functional test how the perpetrator uses the item it's the used in my i would argue to you that creates the potential for danger it's circuit said the short what constitutes a dangerous weapon depends not on the nature of the item itself on the object itself but on its capacity given the answering brief that federal appellate courts have found to be dangerous or deadly weapons under the federal assault statute including a walking stick a cadillac car shoes essentially anything seventh circuit of the eighth circuit where perpetrator at somebody and the federal appellate court found that the perpetrators mouth was a dangerous or deadly weapon under the federal statute now i would concede that under and under nevada statute probably a mouthful of not constitute a game deadly weapon because i don't see m i think to be a deadly weapon under nevada law and we don't have a decision on this so to certain extent and so i think i would argue under that case that federal law in allowing a mouth and i don't know germs i guess under that decision apparently human bites are supposed to be worse than dog bites according to the federal appellate court that alabama social security office apparently some guy didn't like the check he was getting are was taking too long he overturned a desk on the receptionist that was considered to be a deadly or dangerous weapon walking stick used to be the letter carrier in chicago the cadillac from fairly early cases a cadillac you know one of the windows in this courtroom looking outside some of the other courtrooms do and they're probably cadillacs driving by right now the cadillac driving down seventh street or driving down mission street as it's been used is not a deadly weapon if one of those guys uses that cadillac to run over his brother in law who owes him some money now that cadillac under the federal statute becomes dead dangerous or deadly weapon i think there is i think judge schroeder was absolutely correct in the question why are there no cases anywhere either holding or even dealing with the issue of whether or not deadly weapons as a weapon and hansen's are vague and that's because to my knowledge no deadly weapon statute coast to coast from delaware to alaska was cited a lot of those states as ever been found to vague and the problem here is i think perhaps that mr phelps can't see the forest for the trees is getting into a part of the definition of vagueness and i we all understand the definition of a cause but statute in this probably is one of the fatalities because argument the breadth of a statute or the fact that a statute raises a factual issue for a trier of fact like the jury does not make that statute vague justice marshall in the grain it case and that case from the out of the seventh circuit u s supreme court case justice marshall said we are constrained by the use of language statutes do not have to be drafted in scientific or  from our from the nevada supreme court i'm going to guess though that a prosecutor would not have a lot of success arguing that a body part is a deadly weapon and it is dead under under nevada statute under the federal statute apparently it might be because of that mouth case from minnesota in the eighth circuit must have been out of the eighth circuit but i don't think you'd have a hard time arguing that a body part even with a boxer for example or somebody in martial arts i think it has to be extra nil to your body now the question arises how do you kill somebody without using a deadly weapon is that a possibility in nevada and the answer of course is yes the best example of that in our state is the infamous crime ten years ago when jeremy stroh meyer manually strangled and sexually assaulted sherry cyber stand at the casino right over the state line on interstate fifteen coming into nevada from los angeles in a primitive at that little area that with all the casinos that restroom sexually assaulted her manually strangled her and then killed her by twisting her neck by breaking her neck because he was afraid she'd be a witness an excuse me a witness against him that's an excellent example of how you kill somebody nevada without using a deadly weapon under my argument that his hands would not have been a deadly weapon and it was he wasn't charged on the structure he was not charged with my recollection is he was charged with kidnapping sexual assault and murder i do not believe he was charged with murder with the use of a deadly weapon he ended up pleading to you know pleading to i think one or two lessers to get off of death row i think he got life our statute i think in conclusion is no different than any of the other statutes nationwide the argument that because it's a factual issue the  weapon under that case that davis case sometimes the use of the item and the potentiality for inflicting substantial bodily injury or death is a jury issue and i think that phelps is absolutely wrong i think he's dead wrong when he argues that the fact that it is a jury questions sometimes somehow makes the statute think that simply condemns the role of fine a fact finding in the criminal system and i think that argument simply goes nowhere the bottom line is because we're not dealing with a first amendment issue this court said and how citing missouri and a couple other u s supreme court cases that when expressive conduct is not involved we do an as a analysis which is exactly what the nevada supreme court did they did the right thing under twenty two fifty forty under and as applied standard applied to the merits of this case nobody nobody on earth is to place a live body and the nevada supreme court found in the direct appeal that there was enough evidence to show that that body was alive when it was crushed nobody is going to believe that you place a living body in a commercial trash compactor i think  i just have to brief points i think that the warden's argument illustrates the problem with the statute if we have to guess whether hands or a mouth would be a deadly weapon under the statute and ordinary people do not have noticed the other thing is that with respect to the truck chest contactor two judges in actually found that it was not a deadly weapon a justice of the peace and the trials were disinclined to allow the prosecutor to proceed with the charge the prosecutor ha to go to the grand jury when it did go through post conviction and then the district court judge she felt that it was a deadly weapon but said that she believed that the statute was