Anthony Sculimbrene, Esq.
In re: Gilbert R
211 Cal. App. 4th 514 (2012)
Decided: November 12, 2012
Bias towards closure exception makes knife legal.
In this juvenile case, the juvenile was stopped in an area where officers found graffiti. After being stopped the officer asked the juvenile if he had anything on his person. He admitted to have a knife on him. He produced the knife and the police officer was able to open it with a flick of her wrist. The juvenile was arrested and charged with violating California’s switchblade law. At trial, Zan Martin of Plaza Cutlery testified as an expert and explained that the knife had a mechanical feature that biased it towards closure. He also testified that though the knife was in need of maintenance because of a reduction in the strength of the detent, it still functioned at about 85% of specified retention strength. The juvenile’s attorney also relied on the fact that California’s weapons statute had been amended to allow for possession of knives that had mechanical features that biased the knife towards closure. Despite this testimony and the law, the trial Court ruled against the juvenile defendant, relying on the fact that the knife was able to be opened with a single hand and a flick of the wrist.
On appeal the appellate court rejected these arguments. In analyzing the bias towards closure exception, it found that even a slight bias towards closure was enough to have the knife fall into the exception. The court also noted that when the knife has a bias towards closure the exception applies even if the knife could be open with one hand through a flick of the wrist.
Notes for Knife Owners
This case shows two things for knife owners: 1) it’s easy for a police officer to find a basis to search you; and 2) it’s easy for non-knife people to misunderstand the small but important differences in knives. Many states have updated their statutes to include the “bias towards closure” language and this language is now included in the Federal Switchblade ban. Check your state to see if it has this kind of language.
- Point 1: Check to see if your state has a “bias towards closure” exception.
- Point 2: Don’t count on non-knife people understanding things knife folks understand as second nature. We know the difference between an assisted opener and a switchblade, but even with an expert, the trial court didn’t.
Notes for Attorneys
Zan Martin’s testimony at trial, while essentially ignored at the trial level, was very important on appeal as it gave the court a sufficient factual basis to apply the “bias towards closure” language even in the face of a specific factual court ruling to the contrary. This is a rare case where the appeals court did some fact finding (even though claiming it was doing a legal analysis) and Martin’s testimony gave them the ability to do this. Also check your statutes for “bias towards closure” language. Finally, remember that it is through lobbying efforts like AKTI’s work that get important exceptions like the one in this case included in statutes.
- Point 1: Don’t rely on courts to make complex factual decisions–get an expert.
- Point 2: Even if it is clear that the expert and legal argument are failing on the trial level, be sure to make a record on both points sufficient for use on appellate review. Check your own state’s rules on argument and fact preservation.
- Point 3: Check your statutes for exceptions like the one in this case.
Read about AKTI’s introduction of bias toward closure language in California, Texas, the 2009 amendment to the Federal Switchblade Act, and more at www.AKTI.org.