Anthony Sculimbrene, Esq.
NOTE: This is an unpublished opinion. In some jurisdictions, like California, unpublished opinions cannot be cited and in others they have no precedential value. Be sure to check your jurisdiction’s rules before citing this case.
People v. Pickett
2013 Cal. App. Unpub. LEXIS 8361 (November 13, 2013)
Second Amendment does not clearly apply to dirk knives and daggers under California law.
There were three issues raised in this case, standing on a motion to suppress, ineffective assistance of counsel, and a vagueness challenge to California’s knife law. Only one merits review here.
Police were called for a trespass check on a specific property. The owner was not around and asked one person to look after the property in his absence. The police searched the property and found that person and three others on the property. It looked as though they were using cocaine. In searching the four people, they found a knife in the pocket of the Defendant locked in the open position. Based on this, they arrested the Defendant and charged him with violating California’s weapons statute. This statute banned a variety of knives including dirk knives and daggers. It defined these knives in a number of ways one of which included possessing a folding knife in the open and locked position.
At trial the Defendant did not challenge California’s knife law as too vague. He did so for the first time on appeal. Normally, raising an issue for the first time on appeal results in the appeals court finding the issue had been forfeited. The court found so here. They continued on, however, because the constitutional issue warranted examination. However, because the Defendant did not raise the issue at the trial level, they reviewed the trial court’s ruling under a much more deferential standard – clear error. If a person raises an issue on appeal for the first time, the trial court’s ruling is assumed correct unless it amounts to a clear error. Here the court reasoned that the trial court did not make a clear error when it did not, on its own, find the California knife law violated the Second Amendment.
The court walked through the analysis of the Second Amendment post-Heller. Here it found that the challenge the Defendant was making on appeal was a facial challenge to the law. That is the law was vague and unconstitutional regardless of the facts that it was applied to because of the Second Amendment. The court rejected this argument noting that because the California knife law was not, as the handgun ban was in Heller, a COMPLETE ban on knives, it survived a facial challenge. The court also noted that Heller did not protect concealed weapons in any way. Finally, the court also noted that because the ban was not a complete ban the appropriate test for reviewing the law called for an intermediate scrutiny analysis. Given the level of analysis and the lack of a complete ban, the law was constitutional and the Defendant’s conviction stood.
Normal concurring and dissenting opinions are not worth noting, but here the court’s concurring opinion gave a frightening preview of a potential anti-knife argument. The concurring opinion agreed with the majority in all respects, but noted that Heller did not specifically apply to knives. It further noted that given Heller’s definition of “arms” only a limited class of knives might be covered. Finally, it noted that regardless of what kind of knife it was, there is no possibility that the trial court made a clear error here because knives are not specifically mentioned in Heller.
Notes for Knife Owners
While this law was repealed, similar laws still exist in California. Therefore it is prudent to not carry your knife in an open and locked position both for common sense safety reasons and legal ones. Also, because the court did not describe the kind of knife involved, be aware that California law, like the New York gravity knife law, may define knives differently than the common definition. In another case, Castillolopez, a knockoff Swiss Army Knife was considered a dirk knife or dagger AND a locking knife, at least by the lower court. Also, as the court noted here, Heller offers no protection for carrying concealed arms of any kind, even knives.
- Point 1: Don’t carry a knife in the open position in your pocket.
- Point 2: Bans on knives and kinds of knives often define those knives differently than they are commonly defined. Statutory definitions control.
- Point 3: Concealed arms are entitled to fewer constitutional protections than unconcealed weapons.
Notes for Attorneys
First, and most importantly, always preserve arguments for appeal. In some states, this requires contemporaneous objections at trial. Generally, filing a pleading on the issue is sufficient to preserve that issue. The heart of preservation is this–the lower court had to be given a chance to consider the argument for it to be deemed preserved. This case also shows how concealed arms are treated differently. Be aware of that when litigating weapons charges. It bears mentioning that this the second reported case, the other being Castillolopez, where the police claim to find an open and locked knife is someone’s pocket during a pat frisk. While not an argument based on case law, it is worth pointing out to the court just how silly this is. Don’t forget common sense. Finally, as this case shows, don’t assume that the Second Amendment and Heller apply to knives. Argue as they do and provide arguments to back that position up (see State v. Deciccio’s summary for tips on how to do this), unless it is 100% clear that the court believes that knives are protected arms. It might be worth it to seek a stipulation from the State prior to trial on this point, if possible.
- Point 1: Always preserve arguments for appeal.
- Point 2: Check state laws and cases on concealed carry, the standard of protection may be different.
- Point 3: Always push back against silly or illogical factual assertions by the State
- Point 4: Don’t assume knives are covered by the Second Amendment or Heller