CO Supreme Court Decision

cerulean

cerulean

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From the Denver Post:
http://www.denverpost.com/news/news0327m.htm

<font face="Verdana, Arial" size="2">High court tosses boy's weapons conviction

By Howard Pankratz
Denver Post Legal Affairs Writer

Mar. 27, 2001 - Just because a knife may appear to be a weapon doesn't make it one, the Colorado Supreme Court said Monday.

In the 4-3 ruling, the state high court ordered a new trial for a 14-year-old boy convicted of carrying a concealed weapon.

The youth was arrested after he was found carrying a "T-handled push knife," consisting of finger grooves similar to metallic knuckles attached to a knife blade less than 3 1/2-inches long. In ordering the new trial, the court said that before a person carrying a knife with a blade less than 3 1/2-inches can be convicted of a concealed-weapons charge, prosecutors must prove he intended to use it as a weapon. That wasn't done in the boy's case, the justices said.

Chief Justice Mary Mullarkey said blade length is critical. Under the state's concealed weapons law, it is illegal to carry a knife, dagger or stiletto 3 1/2 inches or longer, Mullarkey said. But if the blade is less than 3 1/2 inches, prosecutors must prove the suspect intended to use it as a weapon based on the circumstances, the defendant's words and the characteristics of the knife. The characteristics, by themselves, are not sufficient, Mullarkey said. There must also be a case-by-case determination of whether the knife's primary purpose was as a weapon.

In the 14-year-old's case, a defense expert testified the knife was ugly and could be used to intimidate a person. But the expert also said the knife was a derivation of an Alaskan-style knife used to skin animals and the handle was designed to protect the hands of the person using the knife.

"It can be used as a weapon," Mullarkey said. "But it is also a collectible or decorative object that could be treasured by a collector or a 14-year-old boy."

Justice Rebecca Kourlis, writing for the minority, said the knife was clearly a weapon. It was a combination of brass knuckles and a blade, she said. By the defense expert's own admission, use of the weapon for every day purposes such as hunting would be awkward due to the brass knuckles design, Kourlis said.</font>
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This case firmly establishes that a knife with a blade under 3 1/2" may or may not be a weapon; the determination is up to the court. So, the big question is: If the blade is over 3 1/2", then why isn't the court allowed to determine if it's a weapon or not? Why are kitchen knives and lawnmower blades considered to be per se weapons if their blades are longer than 3 1/2"?

The answer is that the law is unconstitutional. An overbreadth or equal protection argument would trash the entire staute. The court realizes that, but they'll do everything possible to avoid finding the law unconstitutional and forcing the legislator to draft a new one.

The case was "People v. A.P.E." by the way and it's already up at www.lexisone.com

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Cerulean

"My good reason to carry a knife is that God gave me rather weak teeth and rudimentary claws in an evolutionary trade-off." - J.K.M.
 
Cerulean, I would be content with the courts ruling because at least it clearly states that at least some knives cannot automatically be considered weapons. 3.5" is not huge but there are alot of pretty husky knives like CQC7s or REKAT Carnovore Cubs that are under 3.5". Furthermore, the courts does leave some room for the carry of larger knives in what it considers an appropriate setting (I guess that means camping/hunting the liktchen etc.)

My point is that I can live with a blade length limit if it is clear and unambiguous, in other words, the court clearly allows all knives 3.5" or less, not just those it considers unthreatening.
 
Sweet, a breath of common sense in Co. Actually, I don't find the laws here that onerous. Balisongs can fly, auto's and gravity knives not. Unconcealed carry can be as big as you like. All in all, compared to some places not bad at all.

I think limiting auto's and gravity knives is silly, after all a fixed blade can be ready faster, and once in place an auto or gravity knife is no more magically effective, but I can live with it.

I fully understand the limits on "Ballistic knives"... I just can't picture a device that hurl a blade without any chance of it going in an unintended direction.

 
Anthony, you make good points.

It's hard to decide if blade length laws are desirable or not.

I agree that there are some positive aspects to blade length laws. The law is very clear, so it's hard to break the law accidentally. You don't have to research old court cases to find out what is considered to be legal; the law is very easy to find and understand.

However, blade length laws are "zero tolerance" policies. Judges have their hands tied by the law; they can't use common sense and look at things on a case by case basis. There may be some affirmative defenses, but I'm not sure they'll be adequate in all situations.

**************

What makes an object a weapon? It's such a difficult question; there really aren't any easy answers.

Personally, when you're looking at concealed weapons laws, I would define "weapon" as "an object that is specifically designed to kill or injure living things". Under this definition, some knives would be considered to be weapons (such as a double-edged dagger with a double guard), while other knives would just be tools. Of course, there would be a huge grey area, but I say let a judge decide, based on expert testimony, whether or not a particular knife is a weapon.

I don't think that blade length necessarily determines whether or not a knife is a weapon. The CO Supreme Court may believe that as well, but the case they saw just dealt with knives under 3.5", so there was no reason for them to consider whether or not the entire staute was constitutional. The Supreme Court did say though that whether or not a knife is a weapon cannot be determined just by the knife's design, but blade length is an aspect of a knife's design!

I don't know... it's just such a complex issue. No one has ever figured out how to regulate the carry of knives and they probably never will. Frankly, the justices on the Supreme Court are much smarter than I am, and if they have no idea of what to do, I'm sure I don't either.
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Cerulean

"My good reason to carry a knife is that God gave me rather weak teeth and rudimentary claws in an evolutionary trade-off." - J.K.M.

[This message has been edited by cerulean (edited 03-29-2001).]
 
"Balisongs can fly."

Butterfly knives are "gravity knives," and hence illegal in the state of Colorado.

18-12-101. Definitions. (1) As used in this article, unless the context otherwise requires:
(a) "Adult" means any person eighteen years of age or older.
(a.3) "Ballistic knife" means any knife that has a blade which is forcefully projected from the handle by means of a spring-loaded device or explosive charge.
(a.5) "Blackjack" includes any billy, sand club, sandbag, or other hand-operated striking weapon consisting, at the striking end, of an encased piece of lead or other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact.
(b) "Bomb" means any explosive or incendiary device or molotov cocktail as defined in section 9-7-103, C.R.S., or any chemical device which causes or can cause an explosion, which is not specifically designed for lawful and legitimate use in the hands of its possessor.
(c) "Firearm silencer" means any instrument, attachment, weapon, or appliance for causing the firing of any gun, revolver, pistol, or other firearm to be silent or intended to lessen or muffle the noise of the firing of any such weapon.
(d) "Gas gun" means a device designed for projecting gas-filled projectiles which release their contents after having been projected from the device and includes projectiles designed for use in such a device.
(e) "Gravity knife" means any knife that has a blade released from the handle or sheath thereof by the force of gravity or the application of centrifugal force, that when released is locked in place by means of a button, spring, lever, or other device.
(e.5) "Handgun" means a pistol, revolver, or other firearm of any description, loaded or unloaded, from which any shot, bullet, or other missile can be discharged, the length of the barrel of which, not including any revolving, detachable, or magazine breech, does not exceed twelve inches.
(e.7) "Juvenile" means any person under the age of eighteen years.
(f) "Knife" means any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length, or any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds, but does not include a hunting or fishing knife carried for sports use. The issue that a knife is a hunting or fishing knife must be raised as an affirmative defense.
(g) "Machine gun" means any firearm, whatever its size and usual designation, that shoots automatically more than one shot, without manual reloading, by a single function of the trigger.
(h) "Short rifle" means a rifle having a barrel less than sixteen inches long or an overall length of less than twenty-six inches.
(i) "Short shotgun" means a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches.
(i.5) "Stun gun" means a device capable of temporarily immobilizing a person by the infliction of an electrical charge.
(j) "Switchblade knife" means any knife, the blade of which opens automatically by hand pressure applied to a button, spring, or other device in its handle.
(2) It shall be an affirmative defense to any provision of this article that the act was committed by a peace officer in the lawful discharge of his duties.

18-12-102. Possessing a dangerous or illegal weapon - affirmative defense. (1) As used in this section, the term "dangerous weapon" means a firearm silencer, machine gun, short shotgun, short rifle, or ballistic knife.
(2) As used in this section, the term "illegal weapon" means a blackjack, gas gun, metallic knuckles, gravity knife, or switchblade knife.
(3) A person who knowingly possesses a dangerous weapon commits a class 5 felony. Each subsequent violation of this subsection (3) by the same person shall be a class 4 felony.
(4) A person who knowingly possesses an illegal weapon commits a class 1 misdemeanor.
(5) It shall be an affirmative defense to the charge of possessing a dangerous weapon, or to the charge of possessing an illegal weapon, that the person so accused was a peace officer or member of the armed forces of the United States or Colorado national guard acting in the lawful discharge of his duties, or that said person has a valid permit and license for possession of such weapon.

 
Well, butterfly knives and gravity knives are not the same thing. Here is a good pic of a gravity knife: http://onestopknifeshop.com/images/colt/ct-37.jpg

Whether or not butterfly knives are included in the definition of "gravity knife" given by the Colorado Revised Statutes is open to debate. That question would be determined in part through case law.

Most states have a similar definition of "gravity knife" in their statutes. Sometimes, courts decide that a bali-song is a gravity knife and sometimes they don't. You might want to check out some of the cases that Bernard Levine worked on here: http://pweb.netcom.com/~brlevine/expa1199.htm
He writes about a couple of cases where this issue came up.

I haven't seen any Colorado cases that deal with the issue. Interestingly though, New York has the exact same law (same wording and everything). Here are two New York cases where a butterfly knife was found not to fall within the definiton of "gravity knife": People v Dolson and People v. Mott.

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Cerulean

"My good reason to carry a knife is that God gave me rather weak teeth and rudimentary claws in an evolutionary trade-off." - J.K.M.

[This message has been edited by cerulean (edited 04-11-2001).]

[This message has been edited by cerulean (edited 04-22-2001).]
 
Academically and among knife enthusiasts it very well may be open for debate whether or not a balisong is a true gravity knife or not.

However, I assure you that balisongs are considered gravity knives in the state of Colorado. I've got a peace officers handbook around here somewhere that confirms it. (If the DAs are telling the LEOs that balisongs are gravity knives, then for our purposes they're gravity knives.)

Personally, I find bans on balisong to be classic examples of "feel good, knee-jerk legislation."
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[This message has been edited by Erik W (edited 04-11-2001).]
 
Well, that really sucks.
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You would think that if the legislator wanted to outlaw balisongs, they would make a law that says, "Balisongs are illegal". But I guess that logic escapes the DAs.

If you have a good lawyer, and you fight it in court, I still think you could beat the rap. However, if you know police will charge you for carrying a butterfly knife, then it's hardly worth it to carry one.

Erik W. - If it isn't too much trouble, could you quote what it says in the peace officer's handbook about balisongs? I think that would be very interesting and helpful.

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Cerulean

"My good reason to carry a knife is that God gave me rather weak teeth and rudimentary claws in an evolutionary trade-off." - J.K.M.
 
Apparently by "around here somewhere" I really meant "buried at the bottom of some box."

Still digging.

I have found some stuff that I have been wondering about, though.
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Ok, I haven't been able to find my handbook.

So I wrote the State AG's Office.

I asked that assuming that the blade length is under 3.5 inches, are balisongs legal to possess in public in the state of Colorado?

(It is legal to own balisongs, by the way.)

Their response:

"We cannot provide you private legal advice, but in short, it depends."

They then refered without explanation me to the various statutes dealing with weapons. Finally they suggested contacting my local law enforcement agency. I'll tell you now that for every agency you will get a different answer, if one at all. Not exactly helpful.

I then asked if balisongs are considered gravity knives in the state of Colorado.

Their answer:

"Again, this office does not provide interpretive private legal advice. If the various definitions provided to you fit the description of a particular weapon, then one should heed those definitions."

Again, less than helpful. I'll tell you that in jurisdictions where DAs deem balisongsd gravity knives that you will likely be arrested and prosecuted for possessing one in public- a misdemeanor offense.

[This message has been edited by Erik W (edited 04-20-2001).]
 
Hmm... Interesting. That sucks that they didn't give you more info, but on the bright side, at least the AG's office didn't specifically say that Balisongs were considered to be gravity knives in CO.

According to Bernard Levine's site, an Attorney General's opinion in California declared that butterfly knives are gravity knives, although Levine could find no cases where that was tested. CA's version of the switchblade/gravity knife law is slightly different than CO's version though. CA's law doesn't mention that the blade has to be "locked in place", amoung other things.

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Cerulean

"The hairy-armed person who figured out how to put an edge on a suitable rock made it possible for us to be recognizably human in the first place." - J.K.M.
 
You hit the nail on the head. If you state law does not mention that it must be "locked in place (automaticly)" then a Balisong can be considered a gravity knife. Here in VA they are legal to carry. I currently carry two 4" balisongs on me. As long as they are displayed, I am within the law. We have the 3" law here as well. If its more than three inches, then it must be in site.

Someone mode the remark that a fixed blade can be ready to use faster. Your right. Common sence would say that a fixed blade is more dangerous to the other person than any folder of equall length. Not much, but.. The folder is more prone to breakage, even a balisong, arguably the strongest folder. I own two Benchmade 42's, and still think a fixed blade is better for fighting/defence. Well, when you can carry a 4 or 5 inch fixed blade.

Why is any knife illegal in any state? Other than blade length, what would make a switchblade more deadly than any other knife. Nothing! Then why are they outlawed?
My mind, and my body are far more deadly than any knife, as is the case with most anyone. I have never seen a law passed that made a law abiding citizen more safe. A criminal that would kill for drugs or money, sure is'nt going to care about breaking a weapons law now is he! Untill the public stands up for its rights, nothing will change. There really is no way to fight an unfair law untill you get charged with it. Seems that the politicans are the only ones with true freedom! And you can't run for office with any real chance of winning unless your rich! Some system we have here isn't it?!
 
I wrote my DA. Here is his response:

"CRS 18-12-102 makes it a misdemeanor to possess a "gravity knife" in
Colorado. CRS 18-12-101(1)(e) defines a "gravity knife" as "any knife that
has a blade released from the handle or sheath thereof by the force of
gravity or the application of centrifugal force, that when released is
locked in place by means of a button, spring, lever, or other device."
We have prosecuted cases involving butterfly knives, regardless of
blade length, because the blade is generally released from the handle by
centrifugal force and the handles then lock together by some mechanical
device holding the blade in place. Bottom line: if a knife fits the above
definition, it is illegal by law. Thus, "it depends" is the correect answer,
because the knife in question must be matched against the legal definition.
I hope this provides the guidance you were looking for."

---
That, combined with several warnings from LEOs I associate with, pretty much settles it. Balisongs are synonymous with gravity knives in the state of Colorado, and subsequently an "illegal weapon."

[This message has been edited by Erik W (edited 04-23-2001).]
 
That's really interesting. What DA did you write to, Erik W.? I'd like to try writting to some, about a variety of issues.

I'm not sure that I'd say that the issue of whether or not balisongs are illegal in CO is completely settled though. It doesn't look good, but there are still some questions that could be asked. For example: Do all the DAs in the state prosecute balisongs as gravity knives? Did this DA end up with convictions in the cases he prosecuted? Are there cases where balisongs have been found to not be gravity knives? Why has the AG not issued an opinion on this matter? etc.

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Cerulean

"The hairy-armed person who figured out how to put an edge on a suitable rock made it possible for us to be recognizably human in the first place." - J.K.M.
 
This particular DA is from Adams County. I'd bet the prosecutions that he mentions were successful.

As to other DAs, I know the Douglas County and Adams County DAs considers balisongs gravity knives and has successfully prosecuted offenders.


 
I wrote to the Denver DAs office and they were kind enough to send a reply, which I'll quote here:
<font face="Verdana, Arial" size="2">We are in receipt of your e-mail inquiring about the legality of the Balisong style knife. The Colorado statutes do not detail specific types or styles of knives when determining whether such a weapon is considered to be legal. The statutes, as you note, describe the characteristics which make a weapon subject to prohibition.

The actual determination whether any edged weapon is considered to be an illegal weapon, as defined by 18-12-102, is a question of fact. While, ultimately, questions of fact are decided by jurors, our belief is that a so-called Balisong knife is, indeed, a gravity knife, the possession of which is prohibited by Colorado law. I hope we have been of some assistance.

S. Lamar Sims
Chief Deputy D.A.</font>
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So, it's not looking too good for the old butterfly knife.
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I know I'm preaching to the choir here, but I just have to rant for a moment. -

Balisongs are Filipino knives, while gravity knives are WWII era German paratrooper knives. Both their designs and the way they function are totally different. How can anyone possibly confuse the two?

The funny thing is that the definition of "gravity knife" contained in the statutes applies more accurately to a common folding pocket knife than to a butterfly knife. Almost every folding knife can be opened by the application of centrifugal force. Plus, most ordinary pocket knives don't require you to manually unlock the blade before you open it, unlike Balisongs.

Err... actually, I probably shouldn't call that a "funny thing", as I'm sure prosecutors will eventually start to consider common folding knives to be "gravity" knives. CRKT getting their knives seized by customs, the DAs in California trying to erase the exemption for one-handers: this is already starting to happen.

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Cerulean

"The hairy-armed person who figured out how to put an edge on a suitable rock made it possible for us to be recognizably human in the first place." - J.K.M.
 
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