Dry ice bombs are not “explosives,” NM Court of Appeals holds

Dry ice bombs may be illegal at Disneyland, but not in New Mexico. That seems to be the lesson of the Court of Appeals’ recent decision in State v. Alverson.

When Alamogordo police searched Kevin Alverson’s car, they found two bottles of dry ice and two gallon jugs of water. Combining the two in a bottle can generate explosive gases. But police did not have to speculate about Mr. Alverson’s intent, because he admitted that he and a friend intended to go detonate them out in the desert. Mr. Alverson’s day of fun came to an abrupt end, as he was arrested and charged with possession of an explosive.

Mr. Alverson argued that he did not possess an “explosive” because dry ice bombs do not involve any element of combustion. The Explosives Act defines “explosive” as “any chemical compound or mixture or device, the primary or common purpose of which is to explode and includes but is not limited to dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses, squibs, detonating cord, igniter cord[,] and igniters[.]” NMSA 1978, § 30-7-18(A).

Mr. Alverson contended, and the Court of Appeals (in an opinion by Judge Jonathan Sutin) agreed, that the statutory canon of ejusdem generis means that a dry ice bomb is not an “explosive” because the “list of enumerated examples” in the statute “share in common the element of combustion,” and the potential harm from the examples listed in the definition “all result from or cause fire.” Therefore, “explosive” does not encompass dry ice bombs because “[i]t is undisputed that a dry ice bomb does not involve the use of nor does it cause fire.” Opinion, ¶ 11.

In my opinion, this decision involves an incorrect application of ejusdem generis. The Court of Appeals correctly states that ejusdem generis “requires[] that where general words follow an enumeration of persons or things of a particular and specific meaning, the general words are not construed in their widest extent but are instead construed as applying to persons or things of the same kind or class as those specifically mentioned.” State v. Office of Pub. Defender, 2012-NMSC-029, ¶ 29, 285 P.3d 622.

Where the Court goes astray is that the Explosive Act’s definition of “explosive” does not involve “general words” that “follow an enumeration” of specific things, but precisely the reverse — the general words “any chemical compound or mixture or device” are then followed by a non-exclusive list of specific examples.

As Justice Antonin Scalia and Bryan Garner explain in Reading Law: The Interpretation of Legal Texts (Thomson/West 2012), at pp. 203-05, the canon of ejusdem generis does not apply when a general term is followed by a list of specific examples. The purpose of the canon is to limit the scope of a general term which follows a list of specific examples. Thus, for example, a prohibition against dumping “gravel, sand, earth, or other material” into a river would not include any conceivable “material,” such as wood or cheese, but only “material” similar in nature to “gravel,” “sand,” or “earth.”

By contrast, “[f]ollowing the general term with specifics can serve the function of making doubly sure that the broad (and intended-to-be-broad) general term is taken to include the specifics.” This is especially true when the list of specifics is prefaced with terms like “including” or “including without limitation.” Scalia & Garner, at p. 204.

When the ejusdem generis canon is properly understood, there seems little reason to suppose that the Legislature intended that the language “any chemical compound or mixture or device, the primary or common purpose of which is to explode” would not include dry ice bombs.

It is to be hoped that the Supreme Court will correct this result. As for Mr. Alverson, we hope he will find a safer hobby, and wish him well in his future endeavors, which probably will not include getting a job at Disneyland.



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