This article appeared in Knife Magazine, June 2021.
Know Your Knife Laws – The Unwelcome Butterfly
By Daniel C. Lawson, Attorney and Knife Expert
“Butterfly knife” seems to be the most common identifier for the folding knife that wins the award for the most flourishing opening performance. “Balisong” and “fan knife” are other identifiers. Within the field of criminal law, the knives have even been held to be “dirks,” “switchblades,” or “gravity knives.”
The design is an ingenious approach to folding knife technology. When closed, the blade is encapsulated by the two opposing handle pieces. When in the open position, it is extremely unlikely that the blade will fold and collapse on the user’s hand, thereby causing injury. Two pivots attach the blade to the handle, as opposed to a single pivot on conventional folding knives, which distributes lateral stresses over a greater area. Therefore, more rigidity may be achieved with less steel.
For some, the most compelling attraction is the one-hand, flipping-open technique that may be mastered with practice. One might put it in the same category as balancing a spinning basketball on a fingertip or turning a pancake by flipping the skillet but with the risk of a nasty cut on the hand. Training knives with unsharpened blades are available for those who want to acquire the skill through practice.
Many in the U.S. have been conditioned by the overused theatrical device to believe that any knife which opens – or may be opened – dramatically is evil. Accordingly, since a butterfly knife has several moving parts and originated in the Philippine Islands, it must be especially pernicious.
The effort to judicially create a butterfly prohibition where no legislative restriction exists is an interesting study.
Hawaii is the only state with an explicit butterfly knife restriction. HRS § 134-53 prohibits the sale, transfer, transport, and possession of any butterfly knife. The Hawaii Supreme Court overturned a ruling that a butterfly knife was a “switchblade” in the case of In Re John Doe, Juvenile 828 P.2d 272 (1992). The case involved a boy of 15 years who was in possession of a butterfly knife. No misuse of the knife or questionable behavior on the part of the boy was noted.
The pertinent part of the statutory definition of “switchblade” in § 134-52 (Switchblade knives; prohibitions; penalty) states the prohibition applies to “any knife having a blade which opens automatically (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both.” The evidence at the trial included a demonstration by a police officer who was, it seems, skilled in the manipulation of a butterfly knife, despite the lack of any law enforcement exemption under Hawaii law. The Justices of the Supreme Court were less dexterous:
In our examination, we manipulated the knife and determined that the blade can be positioned for use with one hand or, as the officer demonstrated, with two hands. We agree that either method of operation can be performed in a few seconds. However, we disagree with the accuracy of the prosecutor’s characterization of “automatically caught with the other hand.” In context, such a maneuver is clearly manual and not “automatic.” Some practice is required in order to develop the requisite skill to position the blade for use in a matter of seconds, whether using one or both hands.
Accordingly, the switchblade definition could not be applied to a butterfly knife.
The Hawaii legislature responsively enacted § 134-53, which forbids the possession of “a knife having a blade encased in a split handle that manually unfolds with hand or wrist action with the assistance of inertia, gravity or both.” A “Leatherman” or similar multi-tool with a two-piece handle could be prohibited under a literal but absurd application of this definition.
The John Doe, Juvenile decision by the Hawaii Supreme Court includes a critical examination of interpretation of the Federal Switchblade Act (FSA) and derivative U.S. Customs regulations to butterfly knives. The case of Taylor v. McManus 661 F.Supp. 11, was an action by an importer against U.S. Customs officers who had seized shipments of butterfly knives as illegal under the FSA, which defines switchblade as:
any knife having a blade which opens automatically— (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both.
The U.S. District for the Eastern District of Tennessee, where the lawsuit was filed observed that as there was obviously no button on the handle, the issue was controlled by whether it could be opened automatically by gravity and/or inertia. The Court found that:
the knives do not operate automatically since they require at least two manual operations even after the blade is exposed: (1) grasping and folding the second handle and (2) fastening the clasp which locks the handles together.
The U.S. Customs Service appealed the ruling to the Court of Appeals for the Sixth Circuit, Taylor v. U.S. 848 F.2d 715 (1988) agreed that opening the subject knives required “some additional hand movements” before the knife would be ready for use which is inconsistent with opening automatically by operation of gravity or inertia. The Appeals Court reversed the decision on the basis of deference to administrative agencies regarding regulatory interpretation. The interpretation of an agency, such as Customs, as to its regulations will prevail unless it is “arbitrary or capricious.” By analogy, it is incorrect – but not necessarily arbitrary and capricious – to state that 2+2=5 if unelected and unaccountable bureaucrats think so.
In 1990 a statute, then in effect in Alaska, provided that possession of a “prohibited weapon” which included any “switchblade” or “gravity knife” would be punished as a felony. Definitions were not included for the specified knives. In the case of Alaska v. Strange, 785 P.2d 563 (1990), the Alaska Court of Appeals affirmed the dismissal of charges against three separate defendants where each was charged for possession of a butterfly knife.
The Court noted that the statute included “switchblade” and “gravity knife” together. Accordingly:
The ordinary person is therefore put on notice that a “gravity knife” must be similar to a switchblade in operating automatically, or semi-automatically. The pertinent characteristics which a switchblade and a gravity knife have in common are that they are easily concealed and quickly brought to bear.
While the judges in Alaska did not perform a “hands-on” examination as did their colleagues in Hawaii, they did undertake to study cases from across the country. This led them to conclude that “a number of motions, albeit quickly performed,” are required to “bring the knives to bear.” These motions were inconsistent with automatic or semi-automatic operation.
The California Court of Appeals in People v. Quattrone, 211 Cal.App.3d 1389 (1989) reached the opposite conclusion in a similar case which involved a butterfly knife and the statutory definition of switchblade existing in 1989, which included the adverb “automatically.” They simply side-stepped the issue of multiple manual motions by shifting “automatically” to “spontaneously” and thence to “suddenly”:
In relevant part, the dictionary defines “automatic” as “3: having a self-acting or self-regulating mechanism that performs a required act at a predetermined point in an operation…. 4: marked by spontaneous or apparently spontaneous action.” (Webster’s, op. cit. supra, at p. 148.) “Spontaneous,” in turn, is defined as “2: arising from immediate natural impulse,” i.e., suddenly. (Op. cit. supra, at p. 2204.) Definition number four appears most suited to the purpose of the statute, i.e., to ban a knife which can be used to attack its target quickly, surreptitiously and without opportunity for self-defense or flight. . . The word “automatically” in Penal Code section 653k [switchblade definition] includes the sudden and immediate opening or exposing of the knife blade.
Despite what the California court suggested, a closed butterfly knife does not become an open butterfly knife as the result of some “immediate natural impulse.”
A New Mexico statute (§ 30-7-8 Unlawful possession of switchblades) incorporates an alternative definition which prohibits “any knife having a blade which opens or falls or is ejected into position by the force of gravity or by any outward or centrifugal thrust or movement.” The disjunctive “or” following the word “gravity” means the blade must open either by gravity or by any “thrust or movement.” Both thrust and movement are singular, as opposed to plural.
The rules and principles of statutory construction recognize and give effect to disjunctives and conjunctives. “And” does not have the same meaning as “or.” The same rules recognize the concept of number or the categories of singular and plural. A single movement is not the same as several movements.
In the case of State v. Riddall, 811 P.2d 576 (1991), the New Mexico Court of Appeals simply ignored these principles in finding that a butterfly knife was a switchblade:
It is of no legal significance that a combination of gravity and centrifugal force is required. The phrase “any outward or centrifugal thrust or movement” suggests a legislative intent to include knives that require a combination of forces to operate.
The Supreme Court of Virginia in Thompson v. Commonwealth 673 S.E.2d 469 (2009) correctly recognized its role by reversing a conviction for possession of a “dirk” where the item in question was a butterfly knife:
The conclusion of the trial court, acting as the trier of fact, that Thompson’s butterfly knife is “of like kind” to a dirk is plainly wrong and without evidence to support it. For that reason, we will reverse the judgment of the Court of Appeals, vacate Thompson’s conviction.
The American Knife & Tool Institute (AKTI) suggests that butterfly knives are a practical response to the requirement of a pocket-sized knife suitable for a variety of everyday tasks. The knives also satisfy our desire to challenge our exquisitely dexterous human hands and fingers. Empirical evidence that the arrival of these knives from the Philippine Islands has “moved the needle” with respect to juvenile delinquency or crime statistics is, simply, non-existent. It should be a concern to all Americans – and not simply the knife community – that some courts of law have been willing to set aside sound legal principles based upon prejudice.