This article appeared in Knife Magazine in February 2023
Know Your Knife Laws – Uncertainty in New Jersey
By Daniel C. Lawson, Attorney and Knife Expert
Chapter 39 of the New Jersey criminal code is captioned “Firearms, Other Dangerous Weapons, And Instruments Of Crime.” It contains three sections relevant to the possession and carry of knives.
2C:39-3, captioned “Prohibited weapons and devices,” provides that it is unlawful to possess a gravity knife, switchblade knife, dagger, dirk, stiletto, or ballistic knife “without any explainable lawful purpose.”
2C:39-4 is captioned “Possession of weapons for unlawful purposes.” Sub-part (d) applies when one is in possession of a weapon with the intent or “purpose to use it unlawfully against the person or property of another.” “Weapon” with reference to knives, as defined under New Jersey law, is “anything readily capable of lethal use or of inflicting serious bodily injury” and includes “gravity knives, switchblade knives, daggers, dirks, stilettos, and other “dangerous knives.”
2C:39-5 is captioned “Unlawful possession of weapons.” Sub-part (d) provides that it is unlawful for a person to have possession of a weapon “under circumstances not manifestly appropriate for such lawful uses as it may have.”
The phrases “without any explainable lawful purpose” and “under circumstances not manifestly appropriate” which appear in these sections are undeniably vague and indefinite. Each of the above sections is a felony-level crime. 39-3 and 39-5 are punishable by up to 18 months in prison and a fine of up to $10,000. 39-4 is punishable by up to five years in prison and a fine of up to $15,000.
How does one choose an everyday knife when he cannot predict the future or “circumstances,” and what standard applies to “manifestly appropriate.” Knowing which laws apply to the knife one carries requires that the law be understandable by ordinary people. This is an essential part of the due process protection afforded to us by the Constitution. The U.S. Supreme Court states due process requirements applicable to restrictive and punitive law in Grayned v City of Rockford, 408 U.S. 104 (1972) :
It is a fundamental principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.
Within the context of laws applicable to the possession and carry of knives, a law that complies with the constitutional requirement of due process would inform as to the legality of a knife that one casually slips into a pocket along with one’s keys or wallet.
The ability to steer between lawful and unlawful conduct – choosing a “legal” knife – requires the laws must be precise. The Grayned v City of Rockford decision further states:
Second, laws must provide explicit standards for those who apply them to prevent arbitrary and discriminatory enforcement. A vague law impermissibly delegates basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (Underlining supplied)
The 1984 decision by the New Jersey Supreme Court in State v Lee 475 A.2d 31 involved a challenge to the constitutionality of 2C:39-5d on several grounds, including overbreadth and vagueness. The New Jersey Court suggested that its decision in State v. Joas,168 A.2d 27 (1961), where it upheld a “careless driving” statute upon a vagueness challenge, was analogous.
Joas involved a driver who was charged with careless driving after he was observed crossing the white center line. Referring to the Joas decision, it stated:
Similarly, law enforcement officers are on notice that mere possession of a potential weapon is not sufficient to justify an arrest. The possession of a weapon must be knowing and “not manifestly appropriate” for such lawful uses as the object may have.
This analogy is faulty at best. Nothing in “circumstances not manifestly appropriate” is comparable to the highly visible lane markings on our highways that enable us to “safely steer” a vehicle between lines (just as stated by Graynard above)
The improper seizure of policy-making authority by New Jersey judges is observable in the State v Kelly 571 A2d 1286 (1990) decision by the New Jersey Supreme Court.
One Rochelle Dineene Kelly had been involved in an abusive relationship with Randolph Boone, who had fathered her child. Kelly lived with Boone in his apartment for ten months, during which time he physically attacked her on several occasions – typically after smoking marijuana laced with phencyclidine (PCP). These beatings by Boone dislodged several of Kelly’s teeth and fractured her nose such that hospital treatment was required. Kelly complained to law enforcement officials on more than one occasion. The decision notes that “attempts to gain the assistance of police had proven ineffective.”
Kelly and the infant daughter relocated away from Boone to an apartment with roommates, who were also acquainted with him. On the afternoon of July 18, 1984, Boone visited that apartment and began to harass Kelly. She asked him to leave, and he threw her against a wall, at which point a roommate joined in, urging Boone to leave. He did so after warning Kelly not to “come around the corner,” understood as the intersection of Monmouth and Walnut streets in Trenton where Boone commonly loitered.
Several hours later, Kelly and a roommate decided to take Kelly’s daughter to a nearby park. Kelly armed herself with what was variously referred to as a box-cutter or razor knife. She was returning to her apartment after spending several hours in the park when Boone confronted her at “the corner.”
Mr. Boone’s version of events was that he was concerned that their daughter should be home because of the late hour. A witness, Thurman Jennings – described as an acquaintance of Boone – testified that Boone started striking Kelly with his fists and did so for several minutes before she drew the knife:
When she took out the razor at the time [Boone] saw it but look, like, look like to me he ain’t care whether she had it or not. So, still throwing punches at her and so that’s where he grabbed her, she just started swinging and cut.
Boone sustained “superficial wounds,” requiring some 128 stitches. Kelly reported the incident to the police and was charged with Aggravated Assault, Possession of Weapons for Unlawful Purposes (2C:39-4), and Unlawful possession of weapons (2C:39-5).
She was permitted to assert her right of self-defense to raise as a response to the Aggravated Assault charge. Kelly’s lawyer requested that the judge also instruct the jury that “self-defense” applied to the 2C:39-4 and 2C:395 charges. The judge refused that request despite the prosecution’s lack of objection!
While the jury was deliberating, it presented a question to the trial judge as to self-defense and the 2C:39-5 Unlawful Possession of Weapons. The judge provided additional instruction:
The defense of self-protection as I have outlined that defense … is only applicable to the charge of aggravated assault under the first count of this Indictment and does not apply to either count two or three involving the charge of possession of a weapon for unlawful purpose and unlawful possession of a weapon since one may not arm himself or herself with a weapon in anticipation of a future possible need to use that weapon in self-protection.
Section 2C:3-4, an official part of the New Jersey crime code, affirmatively provides that “use of force justifiable for protection of the person.” Article 1 Section 1 of the New Jersey Constitution states:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
The jury found Kelly not guilty of the Aggravated Assault and 2C:39-4 Unlawful Purposes charges but guilty as to 2C:39-5 for the possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have.
Kelly appealed the verdict, asserting that it was an error by the court to have denied her right to the self-defense instruction to the 2C:39-4 and 2C:39-5 charges. The intermediate Appeal Court agreed that self-protection applied to 2C:39-4 but not to 2C:39-5. This was of no consequence since she had been acquitted of the unlawful purpose 2C:39-4 charge.
She then appealed to the New Jersey Supreme Court, which upheld both lower courts, stating:
Although self-defense involves a lawful use of a weapon, it does not justify the unlawful possession of the weapon under section 5d except when a person uses a weapon after arming himself or herself spontaneously to repell [sic] an immediate danger.
In summary, the jury found that Kelly was justified in using force for self-protection, and she did not have a purpose to use the knife unlawfully. While Kelly used the knife for a lawful purpose, she could not lawfully possess it for that lawful purpose, given the circumstances. If, when Boone attacked, she had miraculously found a knife on the sidewalk at Boone’s “corner,” picked it up, and spontaneously used it to defend herself from physical attack, she would not have violated 2C:39-5. However, under the circumstances, it was manifestly inappropriate for Kelly to have a knife – or any other object capable of inflicting bodily injury – in her possession the moment before Boone attacked her. The absurdity of this thinking could be humorous if not so dangerous.
The New Jersey Supreme Court conceded the vague wording of 2C:39-5:
In using general language, the legislature intended to allow juries and judges to define, through the use of their own community standards and through an evaluation of the relevant facts and circumstances, what constitutes manifestly inappropriate possession of an object in each individual case.
The legislature may not defer to judges, juries, and ephemeral “community standards” and “evaluation” of “circumstances” after the fact. The U.S. Supreme Court plainly stated in Kolender v Lawson 461 U.S. 352 (1983):
Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.
Personal predilections or the agenda of the New Jersey Supreme Court are revealed at the end of the 14-page State v Kelly decision:
Undoubtedly Kelly found herself in a particularly difficult situation, but the answer is not to arm oneself and fight violence with violence. The answer lies in making law enforcement more responsive so that the embattled person does not face the Draconian choice of bearing arms or withstanding the onslaught of abuse.
Rochelle Kelly was a sacrifice for the greater goal that could be achieved by making law enforcement “more responsive.” (This may be inconsistent with the more recent Defund the Police movement.)
The June 2022 U.S. Supreme Court decision in New York State Rifle and Pistol Association v Bruen clarified the right to keep and publicly carry arms in common use. The designation therein clearly provides that knives – commonly used and carried for thousands of years as tools, or weapons – fall within this protection.
The American Knife and Tool Institute is dedicated to the education, promotion and information of today’s knife laws throughout the United States, and actively purposes responsible changes and repeals. As evidenced by the above, the State of New Jersey may need to revisit its statutes and the manner in which those statutes are interpreted.
A detailed precis of all state knife laws is available on the AKTI website www.stateknifelaws.com. This is reliable information to help individuals feel confident to carry and use their knives where they live, work or travel. Support these efforts by joining or contributing at www.AKTI.org