This article appeared in Knife Magazine in September 2023.
Know Your Knife Laws – Search, Seizure, and Pretext
By Anthony Sculimbrene, Attorney and Knife Expert
Search, Seizure, and Pretext
In the US, people are “secure in their person, houses, papers, and effects” against unreasonable Government searches and seizures. Generally, this means that unless the police see you break the law, they need a warrant, essentially a permission slip signed by a neutral magistrate, usually a judge, to arrest you or search you or your property. But, like with every legal principle, there are exceptions. One exception, outlined in a case called Whren v. US, 517 US 806 (1996), is the pretextual stop exception. This means that the police can follow you around outside your property, wait for you to make some small legal mistake (like traveling 1 MPH over the speed limit), and use that small legal mistake as a pretext to arrest you. Notably, pretextual stops are not mentioned in the Constitution (in fact, no exceptions to the 4th Amendment’s privacy protections are mentioned in the Constitution) but, instead, are judge-made laws. Additionally, studies, like those by Professor Stephen Rushin, have shown that pretextual stops represent a huge percentage of police stops. Finally, as the case of Freddie Gray shows, pretextual stops, especially those based on carrying weapons, are exceptionally dangerous for those arrested.
The Case of Freddie Gray
You may have heard the name Freddie Gray before, but in case you haven’t or you missed the facts, here they are, as presented in the indictments of the six police officers involved in his murder (notably, all six were not convicted; three, Porter, Miller, and White had their charges dropped and the other three were acquitted at trial). Three Baltimore police officers were on bike patrol when they spotted Freddie Gray. He was not engaging in any criminal activity, but he saw the police and began walking away from them. After a short chase, the officers detained Gray and took him into custody without incident. Critically for the police (and for us), Gray was arrested because he was found to have “a knife clipped to the inside of his front right pocket.” As a pretext for the arrest, the officers decided to charge Gray with possession of an automatic knife as they were illegal. However, Gray’s knife was not an automatic–it was an assisted opener. Images of the knife show that it was a flipper design with a half-serrated blade and a seat belt cutter on the back end of the handle. It was unbranded but had the words “platinum collection” marked on the coated blade. It does not appear to be an expensive knife. Later, there was a disagreement between law enforcement officials–the state attorney determined it was legal, while the police task force claimed that it was illegal under a Baltimore city ordinance.
What happened after the arrest is more well-known. Gray died in the back of a police van after suffering a broken neck. He also had a heart attack, and his larynx was severely damaged. According to the Baltimore Sun, the assistant medical examiner, Dr. Carol Allan, believed that Gray was killed in a “rough ride” incident whereby a person is shackled so that they cannot use their arms and legs and then driven around with quick starts, stops, and turns so that they incur injuries as they bounce around. She noted that Gray died of a neck injury similar to one found in people who die while diving.
How Changes to Knife Laws Would Have Saved Freddie Gray’s Life
Regardless of the guilt or innocence of the officers involved (remember–no one was convicted for their conduct), the problem with Freddie Gray’s case lies first and foremost with knife laws. If he hadn’t been arrested on the pretext of carrying an illegal knife, he would not have died. The problems are obvious. First, the law in question, in this case, was very poorly written. Second, the laws in Maryland at the time did not have preemption language that would make clear which law trumps which (the state law that said the knife was legal or the city ordinance that said it wasn’t). Finally, the knife law here and its lack of clarity demonstrate the problem with pretextual stops.
Gray’s case also demonstrates the fundamental problem with auto knife bans. Because there is difficulty in defining what counts as an auto, especially among non-knife folks, it gives enormous discretion to law enforcement. This discretion, coupled with the pretextual stop exception to the warrant requirement, results in truly absurd and dangerous arrests like the one in Gray’s case.
There is an issue of who gets pretextually targeted when knife laws are poorly written. Overwhelmingly, knives are carried by blue-collar people. A carpet layer has to have a knife for his job. A roofer does as well. Butchers can’t do anything without a sharp edge. Carpenters and remodelers carry knives for work, as do warehouse workers and longshoremen. Over and over again, knives are found in the hands of people doing real work to keep our country moving or to build our infrastructure. By allowing vague knife laws on the books, these people are more at risk for pretextual stops like the one in Freddie Gray’s case. Then there is the issue of safety–because the pretextual stop is based on a tool that some consider a weapon, knife-based pretextual stops represent a heightened risk as compared to other kinds of pretextual stops.
Two current AKTI legislative proposals would have saved Freddie Gray’s life. First, repealing the ban on automatic knives would have made the pretextual basis for the arrest impossible. Second, even if that law were still in place, the preemption aspects of the Interstate Transport Act, would have barred an arrest where laws are in conflict with each other (preemption means that state law would trump local ordinances). Having common sense knife laws saves lives. Freddie Gray’s case is irrefutable evidence of this. Finally, it is worth noting that there is a trend toward eliminating the judge-made law regarding the pretextual stop exception. Some states, like Massachusetts, have eliminated the judge-made law regarding pretextual stops. See Commonwealth v. Long, 584 Mass. 711 (2020). As the Massachusetts court noted, “pretext,” a.k.a. lying, can never be a “reasonable” basis to stop someone.
Common sense changes to existing knife laws don’t just uphold our Second Amendment rights; they make the citizens of the US safer.