Anthony Sculimbrene, Esq.
State v. Hermann
2015 WI App 97 (Decided November 24, 2015)
A Wisconsin law that bans switchblades even in self-defense at home violates the 2nd Amendment.
This is a criminal case. The Defendant, Hermann, owned a switchblade that he kept at home for self-defense. A friend came over and Hermann showed him the knife. As he was handling the knife, it fell. He tried to catch the knife and he stabbed himself in the left groin area cutting his femoral artery. The Defendant began to bleed heavily. EMS was called and he was taken to the hospital and treated. The responding police officer noted the weapon and charged Hermann with a crime for violating Wisconsin’s comprehensive switchblade ban.
At the trial level, Hermann’s attorney made two claims: first that the statute was facially invalid because of the Second Amendment as interpreted by Heller v. District of Columbia, and second, if it was not invalid in every circumstance, it was invalid as applied to Hermann. Hermann made the arguments both in pretrial motions and again at trial, thus preserving them for appeal. Crucial in the argument was the fact that the State and Defendant agreed that Hermann possessed the knife for self-defense and only kept it in his home. Despite these arguments the trial court rejected the Defendant’s claims and found him guilty. He then appealed to the Wisconsin Appeals Court.
The Wisconsin Appeals Court did not address the facially invalid argument, finding instead, that the conviction should be reversed on the more limited as-applied claim. Here the Court noted a few things. First, in Second Amendment cases post-Heller, statutes are not presumed to be valid. Instead, the State must show they are valid. They do so by passing through a two-step analysis. First, the State must show that the law does not impact a right protected in the Second Amendment. In this case, both sides agreed that the knife was for self-defense in the home. As such, the State did not contest this first step. The second step in the analysis, once a law is determined to impact a Second Amendment right, is to determine how strictly (what level of scrutiny) a law is interpreted. Here, the Court found that the state had to show real, not theoretical concerns AND that the law addressed those concerns in a meaningful way. That is, they had to prove their law passed a legal standard called intermediate scrutiny. Here the Defendant claimed that the State should have to meet a higher standard, called strict scrutiny, but the court did not decide which standard applied. Instead, they found that even under the lower standard, the blanket ban on switchblades, post-Heller, could not survive.
The court noted a few important things, provided by the defense that weighed in the Defendant’s favor. First, the Defendant provided data that showed that knife violence and knife-related deaths were much less common than handgun deaths. The Court noted that it would make no sense for Heller to protect a more dangerous implement and not protect a less dangerous one. Second, the Defendant provided a number of reasons why a knife would be preferred to a gun for self-defense. Each of these arguments were convincing to the court. The State, in contrast, failed to rebut these claims. Finally, the Defendant emphasized that the ban was so broad that it impacted an individual’s right to self-defense in their home, a place where the law has traditionally recognized a greater right of self-defense. The Court agreed here as well.
Thus, the Defendant’s conviction was vacated because the Wisconsin ban on switchblades was invalid in light of Heller and the Second Amendment, but it was invalid only as applied to these facts. They did not decide the issue of whether the ban was facially invalid.
Notes for Knife Owners
While the State had a bunch of case law arguments, the Defendant brought case law, data, and common sense arguments. They won the day. The law has always recognized a need for self-defense and post-Heller that right has constitutional status. Additionally, almost all jurisdictions regularly confirm that a right to self-defense in the home is very broad. Also, as this case demonstrates, be careful when handling any knife.
- Point 1: Post-Heller, the Second Amendment and self-defense are more powerful arguments in criminal cases.
- Point 2: The right to self-defense in the home is especially broad.
Notes for Attorneys
This case was an absolute clinic on how to argue knife laws in criminal cases and how to make those arguments on appeal. The Defense crushed the State here. First, the Defendant made both facially invalid and as-applied invalid arguments at the trial level and preserved them on appeal. Second, the Defense carefully noted post-Heller cases and argued that pre-Heller cases lost their persuasive and binding power. Third, the Defense prepared a data presentation that was exceptionally relevant and effective in terms of knife violence and knife-related deaths. Finally, the Defense gave the court realistic, common sense reasons why someone would prefer a knife to a gun for self-defense in the home. Each of these arguments was likely enough to win, but together, as the Court’s opinion demonstrates, they dismantled the prosecution. It is important to note that the State did not contest a preliminary step in the Heller analysis. Many prosecutors in many states have argued that switchblades do not qualify as “arms” protected by the Second Amendment. The State failed to do so here. Do not count on the State in your case making the same mistake.
- Point 1: Make multiple arguments and make arguments that work in the alternative
- Point 2: Review rules on preservation and make sure to preserve each and every argument at the trial level for use on appeal.
- Point 3: Pay attention to when cases where decided, and argue that pre-Heller cases are no longer good legal authority.
- Point 4: Make a multi-pronged argument: legal, data-based, and factual.