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STATE of Minnesota, Appellant, v. Ayyoob Dawood ABDUS-SALAM, Respondent.
The state charged alleged “take-over” organizer Ayyoob Abdus-Salam with two counts of second-degree riot, armed with a dangerous weapon. The charges rested on the state's theory that cars are dangerous weapons during planned intersection takeovers where some participants spin their cars in “donuts” dangerously close to onlooking revelers while passengers hang outside the spinning cars from open windows. The district court dismissed the charges for lack of probable cause that the cars constituted dangerous weapons, reasoning that the state's allegations and supporting facts did not show that the cars “were ․ intentionally driven toward anyone” and were not driven “in a manner to cause the passengers hanging out of [them] to fall or be thrown from [them].” Because the district court focused only on whether participants’ use of the cars intentionally or actually caused serious injury, it failed to address the alternative legal question of whether a jury could find that the cars were used in a manner “likely to” cause death or great bodily harm, and because we hold that the facts as alleged could support that finding, we reverse and remand.
These two consolidated cases concern a novel form of entertainment in urban Minnesota: the mob-oriented blocking of traffic from entering large intersections so that participating cars can “spin donuts” within close range of an encircling crowd of excited observers while passengers hang precariously outside the cars’ open windows. Our primary concern in this appeal is determining whether a car engaging in this activity can constitute a “dangerous weapon” under Minnesota's riot law.
The state charged respondent Ayyoob Abdus-Salam with two counts of second-degree riot based on events occurring on April 9 and April 23, 2022, the first in Minneapolis and the other in Brooklyn Center. The criminal complaints allege that Abdus-Salam promoted “intersection take-overs” in urban areas. The state later submitted four video recordings of the events. Based on the complaints and videos, at each takeover participants use their cars to keep traffic out of a predetermined large intersection. They gather in crowds while some spin donuts in the intersection, some hang outside the spinning cars’ windows, some spectate inside the donut's center, and the others stand and cheer in a circle just beyond the cars’ rotations.
The video recordings depict various takeovers. One of the videos is a YouTube documentary of sorts entitled “MN Season Opener.” It begins with a silver Dodge Charger spinning its tires and revolving quickly around a group of about eight onlookers watching and recording the action from the front of the spinning car at the donut's center. One passenger is hanging out of the window straddling the closed passenger door with one leg inside the car and his other leg and entire torso outside the car. We see the Charger's tail end moving in a circle that outlines the outside edge of the donut and whipping around within inches of other seemingly eager observers. Most of the onlookers appear to be using their cell phones to create their own video recordings of the event while they stand in the growing fog of burnt rubber. One of the outside-the-donut onlookers stands a few inches closer than the others. We see the Charger's rear violently strike his right hip and jettison him into the air, feet skyward and head groundward. The back of the onlooker's head and neck seem to crash onto the pavement. He pauses a moment on his back, then he rolls himself into a crawling position, and we see the Charger continue to spin around as the video dissolves into the next scene.
The next scenes include different Chargers and other muscle cars performing the same donut-spinning maneuvers, again usually around a handful of inside-the-donut gawkers, and a larger crowd standing at the outside edge of the donut sometimes within inches or a few feet of the tail end of the spinning cars. One of the cars, a purple Charger, has four occupants hanging outside. One straddles the driver-side door. Two are sitting mostly outside the closed passenger-side door. And the fourth somehow clings outside the driver's side, having only part of his right arm and the bottom of his right leg inside the car.
Another video also copied from a YouTube posting is a more professionally styled documentary with participants discussing takeovers as a safe alternative to gang violence and other crimes. It also depicts takeovers in or near Minneapolis and cars spinning with passengers hanging from open windows (one is almost entirely outside while driving and spinning donuts), clinging to the roof, or hanging onto open car doors.
A third and fourth video were each recorded by a police helicopter. In the third video, in a Minneapolis parking-lot staging area dozens of cars gather before leaving to take over an intersection. It shows cars spinning donuts within a large encircling crowd at an intersection blocked by about 30 cars. Outside the open window of one donut-spinning car, we see a man hanging by only his arms, with his entire body outside as he keeps his knees bent so as to maintain his lower legs and feet barely above the pavement. Three passengers hang outside another spinning car while another sits inside its open trunk. In the fourth video, we observe the Brooklyn Center takeover. A red car in which Abdus-Salam was a passenger enters the crowd-occupied intersection at the beginning of the event, performs donuts, and speeds off before police track down and seize the car.
The state based its charges of second-degree riot against Abdus-Salam on its allegations that Abdus-Salam organized the takeovers and that, in doing so, he knew or had reason to know that the participants would be “armed with a dangerous weapon,” specifically, a motor vehicle. The district court dismissed the charges for lack of probable cause, concluding that the cars used in the takeovers did not constitute dangerous weapons.
The state appeals.
I. Did the district court err by dismissing the second-degree riot charges against Abdus-Salam based on its conclusion that the facts failed to establish probable cause to believe that the cars used in the takeovers were dangerous weapons?
II. Can a person be “armed with” a car within the meaning of the second-degree riot statute?
The legislature has not addressed the specific conduct alleged in this case in the way it has addressed other particular driving misconduct. For example, from 1937 until 2006, the legislature described reckless driving only generally as the operation of a vehicle in a manner demonstrating “a willful or wanton disregard” for persons or property. 1937 Minn. Laws ch. 464, art. 5, § 27, at 744; Minn. Stat. § 169.13, subd. 1 (2004). But in 2006, the legislature identified roadway racing specifically, mandated that “[a] person shall not race any vehicle upon any street or highway of this state,” and classified racing particularly as reckless driving—a misdemeanor. 2006 Minn. Laws ch. 260, art. 2, § 1, at 733; see also Minn. Stat. § 169.13, subd. 1(a), (b) (2006). Unlike street racing, the legislature has not specifically described and determined the penalty for “spinning donuts” with a vehicle on a public street, let alone the additional conduct alleged here—blocking traffic from entering an intersection and spinning donuts within close range of an encircling crowd with passengers hanging mostly outside the car.
Lacking a statute that closely describes this behavior, the state seeks to prosecute Abdus-Salam for second-degree riot on the theory that he organized the revelries having reason to know that he or others would come armed with dangerous weapons, namely, cars. By dismissing the criminal complaints after recognizing that “the drivers were operating their vehicles in a careless and reckless manner near crowds of spectators,” the district court appears to imply that the offending conduct would have better suited charges of reckless driving or careless driving rather than second-degree riot. This may be so. But our question today is not whether a different statute fits Abdus-Salam's conduct; it is whether the state's second-degree riot charges should have survived Abdus-Salam's motions to dismiss for lack of probable cause. Given our caselaw defining the statutory term, “dangerous weapon,” and the modest showing necessary to meet the probable-cause standard, our answer is yes. The question comes in two stages. First, the state asks us to hold that cars used in the manner alleged here can qualify as dangerous weapons. Second, Abdus-Salam asks us to hold that, even assuming the cars might qualify as dangerous weapons, cars are not the sort of thing a person can ever be “armed with” under the riot statute. We address the arguments in turn.
The state asks us to reverse the district court's pretrial order dismissing the criminal complaints for lack of probable cause. The state can appeal a pretrial order only if it shows unequivocally that the district court's ruling was both erroneous and would critically impact the state's ability to prosecute the case. State v. Underdahl, 767 N.W.2d 677, 683 (Minn. 2009). The district court's dismissing a criminal charge necessarily has a critical impact on the state's ability to prosecute that charge. See id. at 684 (holding that an order dismissing impaired-driving charges has a critical impact even when other charges remain). We therefore must decide whether the district court's pretrial dismissal was in error. We hold that it was.
The state argues that the district court erroneously concluded that the state's complaints and supplemental evidence failed to establish probable cause supporting the second-degree riot charges. After a defendant challenges the charges against him for lack of probable cause, the district court “must determine whether probable cause exists to believe that an offense has been committed and that the defendant committed it.” Minn. R. Crim. P. 11.04, subd. 1(a). A district court should deny a motion to dismiss for lack of probable cause “if the facts before [it] present a fact question for the jury's determination on each element of the crime charged.” State v. Lopez, 778 N.W.2d 700, 704 (Minn. 2010) (quotation omitted). We review the facts underlying a district court's probable-cause determination for clear error and review its application of the probable-cause standard to those facts de novo. Id. at 703. The district court's dismissal and the state's appeal focus on only the “dangerous weapon” element of the second-degree riot charges.
The district court dismissed the second-degree riot charges for lack of probable cause because it found the dangerous-weapon element lacking. In relevant part for our circumstances, a person is guilty of second-degree riot when he gathers with at least two others and disturbs the peace by intentional conduct and “is armed with a dangerous weapon or knows that any other participant is armed with a dangerous weapon.” Minn. Stat. § 609.71, subd. 2. Because the district court concluded that the cars described in the criminal complaints and depicted in the supplemental video recordings were not, as a matter of law, dangerous weapons, we must decide whether the circumstances presented to the district court create at least a fact question for the jury to determine whether the cars were dangerous weapons.
We believe that the circumstances presented leave a fact question for the jury on the dangerous-weapon element. Among other things, a dangerous weapon is any “device or instrumentality that, in the manner it is used ․ is calculated or likely to produce death or great bodily harm.” Minn. Stat. § 609.02, subd. 6. And “great bodily harm” includes any injury that makes death highly probable, that permanently disfigures, that permanently or protractedly impairs the functioning of any organ or bodily member, or that constitutes other serious bodily harm. Id., subd. 8 (2020). The state does not argue that Abdus-Salam and others engaged in the allegedly riotous conduct used the cars in a manner calculated to produce death or great bodily harm, only that they used the cars in a manner likely to produce that result.
The state correctly contends that the district court failed to properly address the “likely to” aspect of the dangerous-weapon definition. The district court placed significant emphasis on what was intended and on what actually occurred but did not address whether a jury might determine that the manner in which the cars were being used would likely kill or greatly injure:
[A] vehicle can become a dangerous weapon if it was used in a manner calculated to cause great bodily harm. The vehicles in this case were not used in a manner calculated to cause great bodily harm. Defendant organized an event where drivers would come to “spin” or “do donuts.” Although the act of “spinning” is both risky and reckless, Defendant had no knowledge that the vehicles would be used in a manner calculated to cause great bodily harm. In these cases, the drivers were operating their vehicles in a careless and reckless manner near crowds of spectators. The vehicles were not intentionally driven toward anyone nor were they driven in a manner to cause the passengers hanging out of the vehicle to fall or be thrown from the vehicle, resulting in harm or injury.
Based on this rationale, the district court concluded that “[t]here is no probable cause that the drivers were operating their vehicles in a manner calculated or likely to produce death or great bodily harm.” Although the district court's conclusion repeated the “calculated or likely to” standard, its analysis considered only what the stunt driving was calculated to do.
The statute does not define the term “likely,” and the parties offer various definitions. But we adopted a definition almost 40 years ago in a case involving a charge of assault with a dangerous weapon. In State v. Graham, we considered the definition of “dangerous weapon” and the district court's legal conclusion that the word “likely” in the phrase “in [a] manner ․ likely to produce death or great bodily harm” could be interpreted by a jury in a way that diluted the state's burden of proof. 366 N.W.2d 335, 337 (Minn. App. 1985). We agreed that the term could lead to that result, but, rather than strike the statutory term as unconstitutional, we remedied the constitutional problem by approving a definition that would replace the challenged language with the substitute phrase, “in [a] manner ․ known to be capable of producing death or serious bodily injury.” Id. at 338 n.1. After we issued that opinion, the model jury instruction was modified to mirror the phrase we suggested. Compare 10 Minnesota Practice, CRIMJIG 13.06 (1990), with 10 Minnesota Practice, CRIMJIG 13.06 (1985). A supreme court opinion later referred to the same language as the “appropriate” definitional instruction for jurors deciding whether an instrument constituted a dangerous weapon. State v. Gebremariam, 590 N.W.2d 781, 783 (Minn. 1999) (plurality opinion). Finally, in State v. Weyaus, we endorsed as an accurate definitional instruction the phrase, “anything ․ that in the manner it is used or intended to be used is known to be capable of producing death or great bodily harm.” 836 N.W.2d 579, 582–83 (Minn. App. 2013) (emphasis omitted) (quotation omitted), rev. denied (Minn. Nov. 12, 2013). Having adopted and confirmed the meaning that a jury should apply when determining whether an object is a dangerous weapon, our appellate courts have clarified how to approach the question of probable cause as to the dangerous-weapon element.
The state's charges of second-degree riot should therefore survive Abdus-Salam's motions to dismiss if the circumstances present a fact question as to whether he knew that the cars in his planned takeovers would be used in a manner known to be capable of producing death or great bodily harm. We believe that the district court accurately observed that the exhibition drivers operated their cars in a reckless manner. Their reckless driving occurred both in extremely close proximity to other revelers and while others clung to the sides and tops of the circling and whipping cars. It is not only a matter of reasonable inference that an onlooker could easily be struck by the fast-whipping cars, the state provided video evidence of an onlooker in fact being struck, flipping in the air, and possibly landing on his head on the roadway. The state presented no evidence that any reveler has died or been seriously injured, but evidence of that circumstance is not necessary under the definition of dangerous weapon. And a person viewing the video evidence might easily imagine someone losing his grip on the side of a circling car and suffering a head injury from the pavement or being driven over, resulting in great bodily harm. We are certain that the question ought to reach the jury. We hold that the state presented facts sufficient to survive the motions to dismiss, allowing it the chance to prove to a jury that the cars were dangerous weapons.
We are not persuaded otherwise by Abdus-Salam's attempt to confine the cars’ manner of use to “the act of spinning and doing donuts.” We do not apply the phrase “manner of use” so narrowly. In State v. Cepeda, for example, we concluded that a thrown beer bottle was a dangerous weapon. 588 N.W.2d 747, 748 (Minn. App. 1999). We did not consider the manner of use based solely on the defendant's throwing; we considered that the fact the bottle broke when it hit the victim showed the force of the bottle and the proximity to the victim struck by it. Id. at 749. Similarly here, in addition to the act of spinning donuts, we consider the anticipated close proximity between cars and onlookers, the stunt riders clinging to the sides of the moving cars, and the fact that onlookers could be and are occasionally struck by the sliding cars.
We emphasize that our decision rests only on whether a threshold factual showing of probable cause supports the charges. This is a low standard. Lopez, 778 N.W.2d at 705. Our opinion should not be interpreted as suggesting how a fact-finder should decide the presently disputed element or any other in deciding whether Abdus-Salam is guilty of second-degree riot. And we offer no opinion as to whether, as Abdus-Salam implies, a lesser offense would have been more fitting. It is up to the prosecuting agency to determine which offense to charge and up to the legislature to determine whether the charged conduct should be more precisely addressed by statute.
Abdus-Salam attempts to support the district court's decision dismissing the charges on his alternative notion that one cannot be “armed with” a car under the riot statute. He asserts that being armed with a dangerous weapon under the statute is limited to “physically holding and wielding with one's hands a dangerous weapon.” During oral argument, his counsel punctuated the argument with his view that, if a group of rioters began a disturbance equipped with clubs, knives, and cars to violently confront police, only the rioters holding clubs and knives would be “armed with” the instruments of their attack, not the ones using their cars to press the line of officers. Abdus-Salam's brief argues that, at the very least, the statute is ambiguous and therefore unconstitutionally vague. The prohibition against attending a riot armed with a dangerous weapon is ambiguous, contends Abdus-Salam, because “armed with” might mean either being “personally equipped with a weapon small enough to hold and wield, like a firearm, pitchfork, flaming tiki torch, or blade” or it might instead mean “using a weapon regardless of the size, such as a vehicle, fighter jet, or Sherman tank.” For the reasons that follow, his argument fails.
Before we address the merits of Abdus-Salam's ambiguity and interpretation argument related to the term, “armed with,” we first respond to the state's implication that Abdus-Salam forfeited the argument. The state accurately asserts that Abdus-Salam did not specifically argue to the district court that a person cannot be armed with a motor vehicle. But the supreme court rejected a similar argument in a related situation in State v. Vasko, 889 N.W.2d 551 (Minn. 2017). The Vasko appellant expressly challenged only whether the evidence was sufficient to convict her under a city's property-clean-up ordinance, but this court had considered the broader question of whether the ordinance was ambiguous. 889 N.W.2d at 555. The supreme court rejected the state's contention that this court should have treated the ambiguity argument as forfeited. Id. at 555–56. It reasoned that, because “it is often necessary to interpret a criminal statute when evaluating an insufficiency-of-the-evidence claim,” this court could also address whether “an ordinance is ambiguous even though neither party argues that it is.” Id. at 556. The Vasko rationale applies in the probable-cause assessment here, where Abdus-Salam has consistently argued that a motor vehicle cannot constitute a dangerous weapon in the context of the second-degree riot statute. His interpretation argument opens the door to the question of whether the statute is ambiguous. We answer the question on its merits.
The unambiguous meaning of the statutorily undefined term, “armed,” belies Abdus-Salam's contention that the phrase “armed with” in the second-degree riot statute is unconstitutionally ambiguous. The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit a state from punishing a person for violating a statute that is impermissibly vague. United States v. Powell, 423 U.S. 87, 89–90, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) (Fifth Amendment); Kolender v. Lawson, 461 U.S. 352, 353–54, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (Fourteenth Amendment). But a criminal statute is not impermissibly vague or ambiguous if it both explains the offense with such definiteness that an ordinary person can understand what conduct it prohibits and it is written so as not to encourage arbitrary and discriminatory enforcement. Holder v. Humanitarian L. Project, 561 U.S. 1, 17, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). The legislature expects us to apply words and phrases “according to their common and approved usage.” Minn. Stat. § 645.08(1) (2022). Our review of the history of the term “armed” and its commonly accepted usage at the time the legislature included it in the riot statute convinces us that the statute is neither ambiguous nor limited by the weapon's size or method of operation.
The etymology of the term does not support Abdus-Salam's argument. The word “armed” began its journey into Minnesota law from its Latin derivation in the thirteenth century. See The Oxford English Dictionary 634–36 (2d ed. 1989, reprt. 1991). The Old French term “armes” and its variants refer to “[i]nstruments of offence used in war,” and, more generally, simply “weapons.” Id. at 634. We see that by 1710 the notion that “arms” included both handheld weapons and larger weapons was apparent in English, as the London Gazette then referenced the subcategory of “small [a]rms” and, by 1883 in the United States, Harper's Magazine similarly referenced “side arms.” Id. Long before then, the term “arms” had evolved for use as a participial adjective, appearing as “armed” in English by 1297, meaning literally, “[f]urnished with arms.” Id. at 636. And early use of “armed” included ships equipped with cannons, not merely small weaponry. Id. To “arm” oneself with an object has never meant to place an object into one's hands or arms, as one might suppose from the homograph; one can be said to have armed himself by becoming equipped with arms (as in weapons), in the same sense that a person might become clothed (dressed with clothes) or that a horse might become saddled (overlain with a saddle). Contrary to Abdus-Salam's position, being “armed” has never been generally limited to being equipped only with handheld weapons.
The meaning of “armed” went virtually unchanged from its appearance in 1297 through the time the Minnesota legislature included the phrase “armed with” in the riot statute seven centuries later. The legislature criminalized rioting in 1963. See 1963 Minn. Laws ch. 753, art. 1, § 609.71, at 1230. And the word “armed” still meant “furnished with weapons of offense or defense.” Webster's Third New International Dictionary 119 (1961 ed.). The word “arm” continues to mean “[t]o equip with weapons” today, The American Heritage Dictionary of the English Language 96 (5th ed. 2011), and the definition includes no express or implied limit to the size of the weapons being possessed or to their means of use. Under the enduring meaning of the words “arm” and “armed,” a person can be armed with a small and simple weapon or a weapon that is large and operated by sophisticated means; a thirteenth-century French castle could have been armed with crossbows and trebuchets, a modern military unit can be armed with rifles and drones, and urban rioters might be armed with guns and motor vehicles.
Corroborating our conclusion that one can be armed with a motor vehicle as a dangerous weapon, caselaw informs us that a motor vehicle can be a dangerous weapon if it is used in an assault in a manner likely to result in death or great bodily harm. See, e.g., State v. Bakdash, 830 N.W.2d 906, 914 (Minn. App. 2013) (“By intentionally driving his vehicle onto a sidewalk into a group of pedestrians, appellant used his vehicle as a dangerous weapon.”), rev. denied (Minn. Aug. 6, 2013); Minn. Stat. § 609.222 (2020) (criminalizing assault with a dangerous weapon). That one can commit an assault with a car as a dangerous weapon necessarily implies that one must be armed with a car during the assault, defeating Abdus-Salam's general theory that one can never be armed with a car. Abdus-Salam argues against any analogy to the assault statute based on the difference between the riot statute's “armed with” language and the assault statute's “with” language, insisting, “Certainly, if the legislature intended the second degree riot statute to be considered similar to the second degree assault statute, it would have worded them identically.” The argument misses the point. The assault statute enhances the penalty of a person who uses a dangerous weapon to commit the underlying assault offense. Minn. Stat. § 609.222, subd. 1 (“Whoever assaults another with a dangerous weapon ․” (emphasis added)). By contrast, the riot statute enhances the penalty of a person who possesses a dangerous weapon during the underlying riot offense. Minn. Stat. § 609.71, subd. 2 (“When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence ․ each participant who is armed with a dangerous weapon or knows that any other participant is armed with a dangerous weapon ․” (emphasis added)). A person can be armed with a dangerous weapon without using it to commit the underlying crime, but he cannot use a dangerous weapon without being armed with it.
And finally, we have found cases from other jurisdictions recognizing that one can be armed with a motor vehicle while committing various crimes. See McNeil v. Commonwealth, 468 S.W.3d 858, 866 (Ky. 2015) (“The evidence ․ made it plain that McNeil was not simply ‘armed with’ a car, but he ‘used’ it as a dangerous instrument in the furtherance of a theft, one indisputably involving physical injury.”); State v. Schordie, 214 Wis.2d 229, 570 N.W.2d 881, 882 (Ct. App. 1997), rev. denied (Wis. Mar. 17, 1998) (“Schordie was subsequently convicted of recklessly endangering safety while armed with a motor vehicle ․”); DeWhitt v. State, 829 N.E.2d 1055, 1065 (Ind. Ct. App. 2005) (“If, as here, criminal recklessness is committed and the defendant is ‘armed’ with a vehicle used in such a manner as to be considered a deadly weapon, then the requirements of [the more serious criminal-recklessness offense] are also met.”). Of course, these cases from elsewhere do not directly establish the meaning of our Minnesota statute, but they confirm our impression that the concept of a person being “armed with” a car is not as novel as Abdus-Salam suggests. We hold that, if a car is used in a manner that qualifies it as a dangerous weapon under Minnesota Statutes section 609.02, subdivision 6, the person so using the car during a riot is “armed with a dangerous weapon” under the second-degree riot statute, section 609.71, subdivision 2.
Because the state alleged sufficient facts from which a reasonable jury could conclude that the cars used in the intersection takeovers were dangerous weapons, we reverse the district court's order dismissing the state's second-degree riot charges and remand for further proceedings.
Reversed and remanded.
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Docket No: A22-1551, A22-1552
Decided: April 03, 2023
Court: Court of Appeals of Minnesota.
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