REGULATING BLADES IN THE BADGER STATE

PRESENTED BY PETER HEYNE GREEN BAY SPD TRIAL OFFICE 1 [email protected] I. Brief History of Laws in Wisconsin

II. 2015 Act 149: A. & Butterfly OK B. Carrying Concealed Knives OK even without Concealed Weapons permit—except for “BAD GUYS” C. State Pre‐emption on local regs (gov’t buildings exception)

III. Wis. Stat. §941.231 Carrying a concealed knife A. Elements 1. Disqualification 2. Carrying 3. Concealed 4. Knife B. Constitutional Issues 1. 14th Amend.: Due Process/Void for Vagueness 2. 2nd Amend.: Self Defense 2  Unlike other states (e.g., Tennessee, Arkansas, which outlawed Bowie Knives before the Civil War), no evidence found that WI ever banned certain types of knives, until the nationwide panic after WWII

 First found mention of knife in WI law: “carving knife” used to injury a citizen deputized to arrest defendant, Rountree v. United States, Bur. 172, 1 Pin. 59, 1839 WL 816 (Wis. Terr. July 1839)

3  a knife (of unspecified design) used as a deadly weapon to inflict multiple wounds that proved fatal Keenan v. State, Wis. 132, 133 (1859).  Wis. Supreme Court approved the trial judge’s jury instructions, holding that “to reduce the offense to manslaughter…the involuntary killing must be without a cruel or unusual weapon, and without any cruel or unusual means” (emphasis added). Id. at 140

4 Knives treated on a case‐by‐case basis if they are “dangerous weapons” (e.g., under s. 939.22(10))

 Designed as weapon: long blade, very sharp, carried in a sheath, had a hilt—more like a . State v. Horton, 151 Wis.2d 250, 445 N.W.2d 46 (Ct. App. 1989)

 Intended to be used/actually used as a weapon, not a tool. School officer found a nine‐inch knife, locked in an open position, tucked in the student’s waistband by her right hip, under her shirt. In Interest of Angelia D.B., 211 Wis. 2d 140, 564 N.W.2d 682 (1997)

5 Barnes v. Martin, 15 Wis. 240, 245 (1862)  in a dispute over a cow that had wandered off onto a wealthy neighbor’s land, when the neighbor refused to return the cow, she returned with a butcher knife and “in order to obtain the cow, threatened and intended to commit violence upon [him] with the knife.”  though the butcher knife was a likely originally just a kitchen implement (though unusual, not a “cruel weapon”), in that case, the wielder had clear mens rea and by this ill intent and attempted use thus transformed the tool into a deadly weapon

6 Harris v. Cameron, 81 Wis. 239, 51 N.W. 437, 438 (1892) As the Wisconsin Supreme Court held right before the turn of the twentieth century (when examining a child’s Daisy Air‐Gun in a torts case), “A pocket‐knife, that a boy must have to whittle and make things with, may become, in the hand of a bad boy, a most dangerous instrument of wrong and injury”

7 8 9 10 11 12 13 Op. Atty. Gen 21‐87, 1987 interpreted s. 941.24 to also ban butterfly knives.

14 State v. Herrmann, 2015 WI App 97, 366 Wis. 2d 312 (Nov. 12, 2015)

§941.24 was unconstitutional as applied to defendant, who possessed a switchblade in his own home for his protection

• Stipulated facts at bench trial: defendant • not a member of a gang • didn’t use switchblade for offensive purposes • possessed in his home for self‐defense

15 §941.24 legislatively repealed by 2015 Act 149

• Assembly Bill 142 first introduced 3/25/2015, passed Assembly Oct 2015 • passed Senate Jan 2016 • Governor signed Feb. 2016

in depth article from Door County paper in 2015

**FYI no apparent connection the Herrmann case 1. Switchblades & Butterfly Knives OK

2. Carrying Concealed Knives OK even without Concealed Weapons permit—except for BAD GUYS

3. State Pre‐emption on local regs (gov’t buildings exception)

17 Carrying Concealed Knives OK— except for BAD GUYS

Newly created § 941.23(1)(ap): “Notwithstanding s. 939.22(10), ‘dangerous weapon’ does not include a knife.”

So no more CCW charges for knives, even without CCW permit…

18 19 III. Wis. Stat. §941.231 Carrying a concealed knife Any person who is prohibited from possessing a firearm under s. 941.29 who goes armed with a concealed knife that is a dangerous weapon is guilty of a Class A misdemeanor.

A. Elements 1. Disqualification 2. Carrying 3. Concealed 4. Knife

B. Constitutional Issues 1. 14th Amend.: Due Process/Void for Vagueness

nd 2. 2 Amend.: Self Defense? 20 • felony conviction / juvenile adjudication • ch. 51 commitment • ch. 55 protective placement • NGI order • Domestic Abuse/Child Abuse Injunction (if there was proper notice) • Harassment/Elder at Risk Injunction (if judge made specific factual finding)

21 22 23 24 What about a closed pocket knife or buck knife or multi‐tool, or fixed‐blade knife properly in its sheath? Is the blade not always hidden?

25  NO DEFINITION in s. 941.231 for “knife that is a dangerous weapon” (see Due Process slides below)  JI uses the generic definition in s. 939.22(10)

26 27 Designed as Lethal Weapons: Combat Knives

Bowie Knife

28 US Army 1918 LF&C Brass Knuckle 29 USMC Ka‐Bar

30 Fairbairn–Sykes fighting knife

31 Ontario Mark 3 Navy (MKIII)

32 Klingon d'k tahg

33 Romulan Double Shadow Knife

34 Mandalorian Vibro‐blade

35 36 Micra®

Gerber Compact Sport Multi‐Plier 400 37 38 39 40 41 42 43 44 45 46 47 48 Constitutional Issues

1. 14th Amend.: Due Process/Void for Vagueness

Statute does not define what is “a concealed knife that is a dangerous weapon.”

Not even a reference to the generic “dangerous weapon” definition in s. 939.22(10).

Even under that definition (see JI), beyond what is clearly designed as a lethal knife (e.g., ), what about a knife that could be both a tool or deadly weapon, depending on the intent and/or use?

49 “the void‐for‐vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ Kolender v. Lawson, 461 U.S. 352, ––––, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983).”

Thus, there are two prongs in a void‐for‐vagueness challenge: first, the statute must be sufficiently definite to give persons of ordinary intelligence who seek to avoid its penalties fair notice of the conduct required or prohibited; and second, the statute must provide standards for those who enforce the laws and adjudicate guilt.”

State v. Muehlenberg, 118 Wis. 2d 502, 507, 347 N.W.2d 914, 916 (Ct. App. 1984). 50  give fair notice to the average person to know what not to do,  and must also have objective enforcement by police, prosecutors, judges, and juries.

51 Is it illegal for convicted felons to carry any and all concealed knives?

Despite the plain terms of the statute (“a concealed knife that is a dangerous weapon”—not “any concealed knife” per se), the Wisconsin Legislative Council Act Memo appears to adopt this absolutist position: “2015 Wisconsin Act 149 does all of the following: . . . Allows a person to carry any concealed knife unless the person is prohibited under state law from possessing a firearm.” **** And that has been this author’s experience, interacting with both local law enforcement and prosecutors—if the police find any knife, even a pocket knife, on a convicted felon, then they arrest and the DA charges the case. 52  If facts are disputed/State won’t agree to a stipulated bench trial, Pretrial evidentiary hearing to make a factual record for the constitutional challenge (not just briefs)  Exhibits! Let the trial judge (and appellate courts) see a clear picture of the knife, with measurements and design features  Make a record: pin down the arresting officer about the knife’s location and the defendant’s comments, conduct/demeanor, to show no mens rea—was it just in his pocket for a routine traffic stop?  Client may even need to testify, about his intent/use— she/he keeps in its his glove box or center console as a tool, for fishing, hunting, camping, hiking, emergencies

53 Constitutional Issues, contin.

2. 2nd Amend.: Self Defense?

• No longer an issue for those who can legally possess firearms (see Hermmann on switchblades, and Act 149 on no CCW for open or concealed carry of any knife)

• But no 2nd Amend. right to possess tools

• Strongest claim if the felon possesses the concealed knife in her/home or privately owned business (Hamdan) for self‐protection 54  Unlike other constitutional challenges (e.g., void for vagueness under 14th Amend.Due Process grounds), a law challenged on 2nd Amend. grounds is not presumed constitutional, and the burden is on the government to establish the law's constitutionality

 Standard of Review? Unclear right now  Strict scrutiny?  Or intermediate review?  Under the lesser standard of intermediate scrutiny, the government has the burden of demonstrating that its objective is an important one and that its objective is advanced by means substantially related to that objective. The government must prove that “the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

55 Statutory Privilege

 Likely very difficult to prove the defense of privilege under §939.45(6)—in imminent threat of death, the knife will likely be open‐carried, not concealed  A convicted felon's possession of a firearm is privileged in limited enumerated circumstances. State v. Coleman, 206 Wis. 2d 199, 556 N.W.2d 701 (1996)

56  Much reduced 2nd Amend. right in a vehicle. Absent extraordinary circumstances (a very fact‐intensive inquiry), a Heller claim for a weapon in a car will not succeed  State v. Fisher, 2006 WI 44, ¶ 32, 290 Wis. 2d 121, 137, 714 N.W.2d 495, 502–03 (“only in extraordinary circumstances will an individual carrying a concealed weapon in a vehicle be able to demonstrate that his or her interest in the right to keep and bear arms for security substantially outweighs the state's interest in prohibiting that individual from carrying a concealed weapon in his or her motor vehicle”)

57 Finis

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