Pennsylvania Knife Laws

At a Glance:

The primary Pennsylvania statute regarding knives is § 908 of the PA crimes code, captioned ‘Prohibited Offensive Weapons’. The knife specific language provides that automatic knives may not be possessed, and are prohibited as ‘offensive weapons’ unless the knife is kept and dealt with ‘as a curio’. Most Pennsylvania knife prosecutions under § 908 are based on the general ‘catch-all’ language which prohibits possession of any ‘implement’ for the infliction of serious bodily injury which serves no common lawful purpose’.

Relevant Statutes:

18 Pa.C.S.A. § 907. Possessing instruments of crime
18 Pa.C.S.A. § 908. Prohibited offensive weapons
18 Pa.C.S.A. § 912. Possession of weapon on school property
18 Pa.C.S.A. § 913. Possession of firearm or other dangerous weapon in court facility
18 Pa.C.S.A. § 6302. Sale or lease of weapons and explosives

Restricted Knives:

Any knife ‘the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise,’ is restricted. This restriction should not apply to ‘assisted opening’ or ‘gravity’ knives based on doctrine of strict construction and interpretation of the statute by the PA courts. (See discussion below).

Concealed Carry:

Pennsylvania law does not distinguish between open or concealed carry of a weapon, except where there is intent to ‘employ it criminally’. (See § 907)

Restrictions on Sale or Transfer:

It is unlawful to sell or transfer any ‘deadly weapon’ to a person under the age of 18. For purpose of this section, a pocketknife has been held to be a deadly weapon. Commonwealth v. Duxbury, 674 A.2d 1116 (1996)

Restrictions on Carry in Specific Locations/Circumstances:

All knives are restricted from schools, public and private, K through 12. There is no statewide airport restriction. It is unlawful to possess knives at a court facility. Compliance with posted rules at Commonwealth (State) property is required by law. (18 PA C.S.A. § 7506 Violation of rules regarding conduct on Commonwealth property).

Statewide Preemption:

No.

Major Pennsylvania Cities with Knife Restrictive Ordinances:

Allentown – None noted.

Erie – None noted.

Harrisburg – None noted.

Philadelphia – §10-820. Cutting Weapons in Public Places. (See below)

Pittsburgh –  None noted. (The City of Pittsburgh code specifically prohibits ‘anti- tank guns’, ‘bazookas’, and ‘flamethrowers’ within the category of non-firearm prohibited weapons. A modicum of self-restraint and discretion is accordingly advised, see section 695.02).

Scranton – None noted.

Wilkes Barre – None noted.

Discussion:

Offensive Weapons

As it is applied to knives, § 908 Prohibited offensive weapons, provides the following definition:

‘Offensive Weapons’   Any, . . . dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, . . .  or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

Thus, there are two categories of knives considered to be ‘offensive weapons’:

1. Blade exposed ‘in an automatic way’, or;
2. Implement for infliction of bodily injury with no common lawful purpose.

Assisted Opening

(blade ‘exposed in an automatic way’)

The issue of exposed ‘in an automatic way’ was addressed by the case of Commonwealth v Ashford, 397 A.2d 420, (1979) which involved a folding knife discovered in the possession of the defendant who had been riding a motorcycle. His physical description may have been consistent with that of a criminal suspect. The description of the knife indicates that it would have fit within the AKTI Standard Definition for ‘gravity knife’.  The prosecution proceeded under a § 908 automatic opening theory only and offered no evidence to establish a lack of any common lawful purpose. There was no indication of some other criminal behavior on the part of the defendant apart from the issue of the knife.

The defendant was convicted at trial, however that conviction was reversed on appeal and he was ordered ‘discharged’. The issue on appeal was whether a knife opened by a ‘flick of the wrist’, opened ‘automatically’. As to what was the legislature intended by the term ‘automatically’, the appeal court stated:

Done without conscious thought or volition, as if mechanically, or from force of habit 2) moving, operating, etc. by itself; regulating itself.” A blade that must be exposed by a flick of the wrist, as the arresting officer testified, is not exposed “as if mechanically” or “by itself.” Furthermore, the phrase “exposed in an automatic way” must be read in its context which is: “exposed in an automatic way by switch, push-button, spring mechanism, or otherwise”.

A reasonable reading of this suggests that if a given knife does not open ‘by itself’ with a ‘switch, push button’ or similar mechanism; then it does not fit within the opening in an automatic way prohibition of § 908.

It should be noted that charges against defendant Ashford derived from possession of a knife in February 1976. The case was decided in the era before assisted opening technology (and cellular telephones) had become common. Assisted opening knives have been widely available in Pennsylvania for more than a decade. During that time, the Pennsylvania legislature has not amended § 908 to specifically include assisted opening knives. Moreover, it has not taken legislative action to correct the Ashford holding if, it was perceived as a misinterpretation of § 908, or the result of some un-intended legislative ‘loophole’.

There has been no modification or challenge to Ashford in the 40 years since it was published, and it is still ‘good law’. We are not unmindful of the 2016 decision of Commonwealth v Chehovits which sustained on appeal, a conviction for what was described as an assisted opening knife. The prosecution had proceeded under the exposed in an automatic way theory.  The Chehovits case is a non-precedential decision meaning it ‘shall not be relied upon or cited by a Court or a party in any other action or proceeding’. Non-precedential decisions by the Pennsylvania Superior Court, an intermediate appeal court, are neither uncommon nor accompanied by an explanation for that status. Defendant Chehovits inflicted serious injury with the knife and was also convicted of ‘aggravated assault’. It was not a simple possession case. A holding that sustained the conviction on both charges without creating a precedent may have been an outcome attractive to the court.

The Ashford case correctly states that ‘every penal statute must be strictly construed’ which ‘is particularly true when the statute imposes strict liability’ meaning liability without criminal intent. We suggest that knives which have a ‘bias toward closure’ as defined in the AKTI Approved Knife Definitions should be excluded, and accordingly not unlawful.

(other implement with no common lawful purpose)    

There have been more Pennsylvnia appellate court § 908 knife decisions based on the general weapon category of implement for infliction of injury with ‘no common lawful purpose’; than decisions arising under the knife specific ‘blade exposed in an automatic way’ category.

Pennsylvania appellate courts have resisted attempts to judicially ‘rewrite’§ 908 to include a ‘circumstances of possession’ element into the issue of whether a given knife is an ‘implement with no common lawful purpose’. This is easily seen in two cases, both of which involved a knife wielded in connection with some ‘disturbance’.

In the matter of Commonwealth v Artis, 418 A2d 644 (1980), the defendant was arrested during a barroom disturbance, where he was standing in the middle of the floor and waving a folding knife with a 7-inch blade at other patrons. He was convicted at trial of misdemeanor disorderly conduct, and for violating § 908 by his possession of an implement (the folding knife) which had no lawful purpose. The prosecution offered no evidence in support of the allegation that the knife lacked a common lawful purpose. Rather it simply claimed that the knife had no lawful purpose at the time and place in question. The defendant appealed with the result that the § 908 conviction was set aside since, apart from the circumstances of the barroom disturbance, there was no evidence to support the finding that the folding knife lacked a common lawful purpose. The prosecution did not meet its burden of proof. In other words, waving the knife in a bar does not make the knife an instrument with no common lawful purpose. Moreover, if the knife had a common lawful purpose outside of the bar, it was not unlawful to possess the knife even while waving it in the bar. The defendant’s actions, which included waving the knife, did constitute disorderly conduct which was a separate issue and a separate offense which was not disturbed on appeal.

In the case of Commonwealth v Myers, 417 A2d 700 (1980), the circumstances were described as follows:

On June 3, 1977, at or about 7:00 o’clock, P.M., police were called to quell a disturbance on Howard Avenue in the City of Lancaster. Upon arrival at the scene, they found large groups of people standing on both sides of the street. [The defendant], who had been standing in the crowd, ran into a house, emerged with knife, and ran up the street towards a man standing on the porch of a nearby house. As [defendant] approached the man, he shouted that he was going to kill him. Police stopped [defendant] and took the knife from him. The knife, described as a butcher knife, was 13 inches in length with an 8-inch blade.

The defendant was convicted at the trial of the sole charge asserted which was possession of an implement having no lawful purpose under § 908. Upon appeal, his conviction was set aside, and he was set free because the lively circumstances surrounding the disturbance had no relevance to the issue of whether a butcher knife with an 8-inch blade had a common lawful purpose. Butcher knives are commonly and lawfully used in kitchens everywhere. That common lawful purpose was not altered when the defendant carried the knife from the house and into the street.

Common lawful purpose requires more than a conceivable lawful purpose. A sheath knife featuring a handle that could be locked either perpendicular to the axis of the blade or straight in line with the blade was found in the possession of the defendant in the case of Commonwealth v Lawson, 977 A2d 583 (2009).

The defendant was the subject of police intervention in response to a disturbance involving weapons at a convenience store. He was charged with possession of an instrument with no common lawful purpose. At the trial, the prosecution presented an expert witness whose qualification was three decades of experience in selling knives as a sporting goods retailer. His opinion was that the knife had no lawful purpose. He conceded it could be used for whittling or field dressing of game but would be awkward for such tasks. The conviction at trial was upheld on appeal where the court observed that a conceivable lawful purpose can be offered for almost any item which is insufficient to establish common lawful use.

There are several troubling aspects of the Lawson case. The opinion of the court suggests that the prosecution expert witness was concerned with common lawful sporting use as opposed to general utility use. The defendant was sentenced to 6 months to 24 years imprisonment which is significantly beyond the 5 years maximum for violating § 908, a misdemeanor of the first degree. There was, apparently, more to the story not pertinent to the appeal than a simple disturbance at a convenience store.

A conviction of possessing an implement with no common lawful purpose was upheld in Pennsylvania where it was applied to a 30-inch knife. Commonwealth v Gatto 344 A2d 566 (1975).

 (The Curio Exception)

While, Pennsylvania courts have not allowed a ‘circumstances of possession’ element to be used to support a conviction under § 908, subsection (b) provides for a defensive use of ‘circumstances’:

It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that, with the exception of a bomb, grenade or incendiary device, he complied with the National Firearms Act , or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.

Excluding bombs, grenades, or incendiary devices, it is a defense, if proven, that the knife or implement was possessed, or dealt with, solely under circumstances negating any intent or likelihood that it be used unlawfully. The focus of this exception is how it is ‘dealt with’ meaning how is it handled or managed.  ‘Curio’ is a rationale as for why a law-abiding person would even own the ‘offensive weapon’ or ‘implement for the infliction of serious bodily injury which serves no common lawful purpose’ in the first place. For theatrical purposes is another such explanation.  The affirmative defense provided by § 908 (b) is established where the defendant proves by a preponderance of the evidence that the circumstances of possession were benign.

We believe that the practical application of the § 908 (b) exception is that an automatic knife may be owned as part of a collection or as a novelty. Such a knife could be displayed on a shelf or mantelpiece in one’s home. One could transport the knife to, or from, a knife show for instance, provided it is securely encased and not within reach during transport. This would apply to all occasions when the item is possessed in public.

In the case of Commonwealth v. Walton, 380 A.2d 1278 (1977), the defendant was observed carrying a sword cane and convicted under § 908 for possession of an implement with no common lawful purpose. His ‘curio’ defense that he had purchased the sword cane as an antique and was carrying it home when he was arrested, was not persuasive at the trial level and the conviction was upheld on appeal. Carrying a sword or automatic knife so that it can be immediately or easily used as a weapon, is inconsistent with possessing it solely as a curio.

(Daggers)

Section 908 is mis-read by some as explicitly prohibiting the possession of ‘any dagger’. This may be due to the definition of ‘Offensive weapons’, in § 908 (c) which awkwardly contains some eighty words and covers explosive devices, certain firearms, non-rigid impact weapons, taser/electronic devices, along with cutting instruments.   However, only daggers which have a blade exposed automatically are included in the prohibition of prohibited offensive weapons. The relevant portion of § 908 (c) reads as follows:

‘Any. . . dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way . . .’

Each of the nouns dagger, knife, razor, and cutting instrument are qualified by the words ‘the blade of which’. If this were not the case, the possession of any knife and or razor, would be prohibited under PA law.

A well-recognized principle of statutory interpretation provides that when an item is expressly mentioned, other items in the same class are excluded. In ‘legalese’ this is referred to as expressio unis est exclusion alterius. Any dagger which has a blade exposed in an automatic way is expressly mentioned as prohibited. Accordingly, a knife which generally conforms to the AKTI suggested standard definition for ‘dagger’ should be excluded from the prohibition of § 908.

Law Enforcement – Military

This is no exemption for law enforcement, military, fire-fighters, or emergency services workers. The sole such exemption pertains to ‘blackjacks’ and is limited to specified law enforcement personnel who have received state mandated training.

Philadelphia

There is no statewide preemption statute in Pennsylvania. Philadelphia has enacted a profoundly restrictive ordinance, offensive to both the Pennsylvania State Constitution and the U.S. Constitution, which prohibits the possession of any knife on public streets or public property:

• 10-820.  Cutting Weapons in Public Places

(1)   Definition.

Cutting Weapon. Any knife or other cutting instrument which can be used as a weapon that has a cutting edge similar to that of a knife. No tool or instrument commonly or ordinarily used in a trade, profession or calling shall be considered a cutting weapon while actually being used in the active exercise of that trade, profession or calling.

(2)   Prohibited Conduct. No person shall use or possess any cutting weapon upon the public streets or upon any public property at any time.

(a)   Exception: This restriction shall not apply to the use and possession of cutting tools by emergency personnel of the Philadelphia Fire Department, whether on or off duty.

(3)   Penalty. The penalty for violation of this Section shall be a fine of not less than three hundred (300) dollars and imprisonment of not less than ninety days.

Ironically , if one would wish to visit the location where the Declaration of Independence was debated, written and signed; where the United States Constitution was debated and signed; where the Liberty Bell is displayed; or which is the ‘birthplace’ of the United States Marine Corps; he or she  is not at liberty to possess even a small knife.

Comments

The consequences for violating § 908 are significant. There is a maximum imprisonment sentence of 5 years plus a fine of not more than $10,000. Additionally, a conviction renders a person ineligible to possess firearms under the PA Uniform Firearms Act, 18 PA C.S.A. § 6101.

AKTI believes that automatic knives are useful tools. Our efforts to amend § 908 accordingly, and to remove the categorization of certain common lawful knives as asymmetrical weapons useful only for offensive purposes continues.

Updated July 29, 2019 by Daniel C. Lawson