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  • WisBar News
    December 08, 2015

    Appeals Court Says Defendant Had Right to Possess Switchblade at Home

    Joe Forward

    Dec. 8, 2015 – Cory Herrmann accidentally dropped a switchblade while showing it to a friend in his own home, piercing his femoral artery. Recently, a state appeals court reversed his conviction for possessing a switchblade, citing his right to bear arms.

    Possessing a switchblade is prohibited under Wis. Stat. section 941.24(1), which makes it a misdemeanor to possess any knife “having a blade which opens by pressing a button, spring or other device in the handle or by gravity or by a thrust or movement.”

    Herrmann’s friend called 911 to address the injury. Police responded to the call, learned what transpired, and charged Herrmann with a violation of the anti-switchblade statute.

    After making a recovery, Herrmann challenged the charge by arguing that the anti-switchblade law violated his constitutional right to bear arms. Even if the statute is facially constitutional, Herrmann argued, it was unconstitutional as-applied to him.

    The Outagamie County Circuit Court rejected Herrmann’s motion to dismiss. After a bench trial, the court found him guilty and imposed a $100 fine, plus costs. The court said a statutory ban on switchblade knives did not impede Hermann’s right to protect himself at home, since Herrmann could have kept a weapon that wasn’t banned.

    In State v. Herrmann, 2015AP53-CR (Nov. 24, 2015), a three-judge panel for the District III Appeals Court reversed in part. The panel did not rule that section 941.24(1) is facially unconstitutional, but ruled that it was unconstitutional as-applied to Herrmann.

    The panel noted that Wisconsin courts have interpreted the right to bear arms under the U.S. and Wisconsin constitutions as providing identical protection.

    The Wisconsin Constitution (Art. I, section 25) specifically grants the right to bear arms “for security, defense, hunting, recreation or any other lawful purpose.” In addition, the U.S. Supreme Court has ruled that people may keep and bear arms for self-defense.

    When someone challenges laws that restrict the right to bear arms, courts examine whether a state has a constitutionally sufficient reason for imposing the restriction.

    Herrmann argued that strict scrutiny applies – the government must show the restriction is necessary to achieve a compelling governmental interest by the least restrictive means. The state argued that intermediate scrutiny applies – the government must show the law is substantially related to an important government objective.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The panel did not decide what level of scrutiny should apply, concluding that Herrmann wins even when applying the more deferential standard of intermediate scrutiny.

    “The state argues that Wis. Stat. § 941.24(1) serves an important governmental interest – namely, protecting the public from the danger of potentially lethal surprise attacks posed by individuals using switchblade knives,” wrote Judge Lisa Stark.

    “However, the State cites no evidence to establish that this danger actually exists to any significant degree. Thus, on the record before us, we are not convinced that § 941.24(1) serves an important governmental objective,” Judge Stark explained.

    Additionally, the panel ruled that the anti-switchblade statute was not substantially related to the government’s stated objective of protecting the public from surprise attacks, as applied to Herrmann, because Herrmann possessed it in his own home.

    “The threat to the public of a surprise attack by a person possessing a switchblade in his or her own residence for the purpose of self-defense is negligible,” Stark wrote.

    “Consequently, while banning possession of switchblades in other settings might be substantially related to the State’s cited objective of protecting the public from surprise attacks, prohibiting individuals from possessing switchblades in their own homes for their own protection is not.”

    The panel said a total ban on switchblades burdened Herrmann’s right to bear arms for the purpose of self-defense under District of Columbia v. Heller, 554 U.S. 570 (2008), where the U.S. Supreme Court struck down a law banning handgun possession.

    “Like the law at issue in Heller, Wis. Stat. § 941.24(1) imposes an absolute prohibition on an entire class of arms protected by the Second Amendment, even when kept or carried in the home for self-defense,” Judge Stark wrote. “And, as Herrmann argues convincingly, handguns pose a greater threat to public safety than [switchblades].”

    The panel cited 2013 FBI data showing that about 69 percent of all murders reported to the FBI involved firearms, and 47 percent involved handguns. Knives, on the other hand, were used in just 12 percent of murders that year.

    The panel also noted that firearm injuries are much more likely to cause death than knife injuries. If banning handguns in the home for self-defense is unconstitutional, the panel noted, banning a less dangerous weapon for that purpose is also unconstitutional.

    Rejecting the circuit court’s stance that Herrmann could have chosen a different weapon to protect himself in his own home, the panel noted that homeowners may have their reasons for possessing a switchblade. For instance, they may not want to have a gun in the house.

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