United States v. Swallow, (9th Cir. 2018)
Paul Swallow’s wife gave him $10 to run down to the local casino and pick up some methamphetamine for her. When Swallow gave the dealer his ten-spot, the dealer kept his money and wouldn’t give up the meth. When Swallow and his wife ran into the dealer in the parking lot, Swallow’s bossy-boots wife demeaned Swallow for being a coward and getting ripped off by a drug dealer. You can bet your boots Swallow wasn’t going to stand for that. Defending his own honor, Swallow punched the dealer, knocking him to the ground.
Though blue suede shoes would have fit the casino fashion scene better, Swallow kicked the dealer with his feet shod with tennis shoes. He kicked some more, landing decisive kicks on the dealer’s torso and head. When the dealer resisted no more, Swallow kicked the unconscious man in the head “like a football.” Swallow delivered the final insult of stomping the dealer’s head and crushing it into the pavement with the tennis shoe-wearing foot. The drug dealer suffered brain damage.
Swallow pleaded guilty to assault resulting in serious bodily injury. The trial court applied a sentencing enhancement for using a “dangerous weapon” to assault the drug dealer. Swallow challenged the notion that a tenny-runner could be a dangerous weapon.
The court observed: “There are two types of instruments that qualify as dangerous weapons: those that are inherently dangerous (such as guns and knives), and those that, while not dangerous per se, can become so by virtue of the manner in which they are used.” Surprisingly, there is a solid catalogue of judicial decisions on whether the soft shoe routine can rise to the level of using a dangerous weapon. Courts uniformly hold that the rubber sole is more damaging than the unshod human foot. Because Swallow used his shoe to “augment the kicks and stomps” to a level of force capable of causing serious bodily harm, the dangerous weapon sentencing enhancement fits and Swallow has to wear it. The panel decision was unanimous: All three judges had all six feet in one camp.