Re: Guest Post - Possession of other weapons

1

No, no, and yes. A boxcutter or pocketknife has myriad legal uses, whereas a switchblade is primarily a weapon (one which many jurisdictions ban outright).


Posted by: knecht ruprecht | Link to this comment | 03-12-13 6:53 AM
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Box cutters are useful tools and should not be considered weapons anymore than hammers should. A switchblade is pretty clearly intended as a weapon. I'd be inclined to indict on #2 so that a jury could figure out if the knife was weapon-y enough. The inconvenience and general PITA for the defendant counts towards the punishment for being a belligerent asshole.


Posted by: togolosh | Link to this comment | 03-12-13 6:55 AM
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Does the statute really not have any other context? It just says "other weapon" without having mentioned particular weapons first? Or did they refuse to read the part that would have actually made the meaning clear? Seems strange to me.


Posted by: essear | Link to this comment | 03-12-13 7:00 AM
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... Should we have indicted these sad sacks?

Yes, since committing crimes is

... circumstances not manifestly appropriate for such lawful uses as it may have ...

Whether the statute is legally flawed isn't really your call.


Posted by: James B. Shearer | Link to this comment | 03-12-13 7:02 AM
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I would indict you, and suggest you take the post down.


Posted by: bob mcmanus | Link to this comment | 03-12-13 7:03 AM
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Unimaginative wrote this! Sorry. I forgot his name at first, added it, and then the change got eaten.


Posted by: heebie-geebie | Link to this comment | 03-12-13 7:04 AM
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I would say indict on all three. The test isn't "is there a conceivable lawful use for this item?" As knecht points out, box cutters have a lawful use. So do rifles. So do chainsaws. So does plastic explosive. So do two-handed swords (lawful use = "exhibit").

The test is: were you carrying it under circumstances where it's manifestly appropriate? It's fine to carry a chainsaw around if you are on your way to cut down a tree. It's OK to carry a boxcutter if you've just been cutting some boxes. It is not manifestly appropriate to carry a knife while in a convenience store - there's no good reason for you to do so.


Posted by: ajay | Link to this comment | 03-12-13 7:05 AM
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Since we're on a grand jury, the statute is read to us but there is no interpretation offered and we're not allowed to look things up. ...

IIRC when I was on a grand jury we could ask for legal explanations or interpretations (but would not necessarily get clear ones).


Posted by: James B. Shearer | Link to this comment | 03-12-13 7:06 AM
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An interesting point is that the manifestly appropriate use also has to be legal. So, if you burgle a house by using a box cutter to cut through the door screen (for example), you aren't carrying the boxcutter as a weapon - it's there as a cutting tool, to allow you to commit burglary. But that isn't a lawful use, so they can still grab you on the weapons charge...


Posted by: ajay | Link to this comment | 03-12-13 7:08 AM
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circumstances not manifestly appropriate for such lawful uses as it may have

In the culture I grew up in, many adult men (including most adult men of the older generation) carry a pocket knife with them at all times, with no malevolent intent. The knife is merely a tool that one is expected to have at hand in case it's needed, like a cigarette lighter for a smoker. I suspect this is true of a pretty broad swathe of the country. I seriously feel like the put-upon gun nut here, with my "You out-of-touch elitist Yankees just don't understand, it's part of our culture." But really, it's true. A conventional pocket knife is just not considered a weapon - especially if it lacks a locking blade (as many do), which makes it dangerously unsuitable for stabbing.


Posted by: knecht ruprecht | Link to this comment | 03-12-13 7:11 AM
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Possibly relevant: the situation in Knifecrime Island is that you don't need a good reason to carry a small folding knife (Swiss Army knife). Carrying any other sort of knife without good reason will get you up to four years' imprisonment. And there's a whole list of knives (flick knives, throwing stars etc) which it's illegal to buy, sell, own or carry.


Posted by: ajay | Link to this comment | 03-12-13 7:12 AM
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Jammies generally has a pocketknife on him.


Posted by: heebie-geebie | Link to this comment | 03-12-13 7:13 AM
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...which sounds pretty similar to what knecht is describing. Without knowing what kind of knife we are talking about, it's difficult to say for certain in cases 1 and 2. 3, though, would go to prison in the UK.


Posted by: ajay | Link to this comment | 03-12-13 7:14 AM
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Sorry, 1 is also illegal - boxcutter doesn't count as a small folding knife. 2 might be OK.


Posted by: ajay | Link to this comment | 03-12-13 7:16 AM
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I have a manifestly useful little (locking) folding knife. I don't usually carry it (although I often think "gee, it would be much handier if I carried that little knife around") but when I have call to use it a lot (moving, say, or working on a project that involves assembling or disassembling things) I clip it in my pocket and forget about it. I would be manifestly irritated if I got mistakenly picked up (let's assume) for whatever and hit with weapons charges because I had my stupid little knife. Ergo, government restrictions on the sale of flamethrowers are tyranny.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 7:19 AM
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9: But as you say, you aren't carrying it as a weapon. I would be inclined to say that they can't grab you on the weapons charge precisely because of that. Alternative scenario: a few kids break into a private baseball field (here's me wildly imagining stuff about the US, private baseball fields are a thing, right?). They just want to play a bit, so obviously they're all carrying bats. Bats which could, your honor, be used as weapons. Also, is it not a fact that the words "parish council" are an anagram of "lispian crouch"?


Posted by: Awl | Link to this comment | 03-12-13 7:19 AM
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Oops, lispian crouch.


Posted by: Awl | Link to this comment | 03-12-13 7:21 AM
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Public baseball fields can be locked up! The ones near our house are only available (to anyone) with a reservation.


Posted by: heebie-geebie | Link to this comment | 03-12-13 7:24 AM
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On the other hand I know a guy who used to carry one of these in a special rig sewn to the back of his messenger bag, which was both very classy and, if I'm honest, not a totally inappropriate setup for a weapons charge if something had happened.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 7:27 AM
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Unimaginative, have you since looked at cases on the statute? Were these presentations likely within the statute as applied by the appellate courts?

It seems to me the propriety isn't determinable just on the basis of what the person is doing at the moment, or just since the police were notified of what the guy was doing. Does boxcutter guy have a job as a mover, or something else that requires boxcutting? If so, his possession on the way home from work wouldn't be inappropriate. And I think I'd be willing to insist that the police tell me why he has no business with boxcutters; if they don't tell me his job, or something reasonably likely to rule out this tool (because it is like a hammer, which is a weapon too) I'm not going to indict.


Posted by: CharleyCarp | Link to this comment | 03-12-13 7:28 AM
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21

Along similar lines, does everyone agree that the arguments being leveled against allowing pocketknives and such back onto planes are incredibly weak and stupid?


Posted by: heebie-geebie | Link to this comment | 03-12-13 7:33 AM
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The blade in 19 would get your mate sent down for a lot longer than Chris Huhne in UK, even if he was just taking a cake to his grandma when picked up.


Posted by: chris y | Link to this comment | 03-12-13 7:34 AM
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I don't even see the blade in 19. Because my net nanny won't let me (category: weapons/bombs).


Posted by: Awl | Link to this comment | 03-12-13 7:37 AM
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Along similar lines, does everyone agree that the arguments being leveled against allowing pocketknives and such back onto planes are incredibly weak and stupid?

I wouldn't say incredibly weak and stupid, but since the advent of reinforced cockpit doors, allowing a little knife blade on board seems to pose little risk.


Posted by: knecht ruprecht | Link to this comment | 03-12-13 7:38 AM
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It is not manifestly appropriate to carry a knife while in a convenience store - there's no good reason for you to do so.

I just got my knife back from the sharpening service and now I'm popping in to get a soda from the convenience store.


Posted by: nosflow | Link to this comment | 03-12-13 7:39 AM
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26

I was on a grand jury several years ago and people would get arrested with...I forget what, some fairly innocuous things on them, and then get charged with "Possession of Burglar's Tools." I wish I could remember what, because they were definitely not objects whose only use or even primary use was burglary. And of course everyone indicted everything. It was a somewhat discouraging experience.


Posted by: Mister Smearcase | Link to this comment | 03-12-13 7:40 AM
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27

I would indict on all of them -- they seem to be within the wording of the statute -- but I think the statute is unconstitutionally vague and I'd appeal a conviction under it for at least the boxcutter.


Posted by: LizardBreath | Link to this comment | 03-12-13 7:41 AM
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definitely not objects whose only use or even primary use was burglary.

Credit cards?


Posted by: chris y | Link to this comment | 03-12-13 7:42 AM
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26: screwdrivers?


Posted by: Sifu Tweety | Link to this comment | 03-12-13 7:42 AM
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I would indict on all of them -- they seem to be within the wording of the statute -- but I think the statute is unconstitutionally vague and I'd appeal a conviction under it for at least the boxcutter.

Your faith in the power of the legal system to remedy injustices inflicted on powerless sad sacks is touching.


Posted by: knecht ruprecht | Link to this comment | 03-12-13 7:44 AM
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I haven't got much faith along those lines. (Actually, I might change my vote on 2. If 'knife in his pocket' meant 'little folding pocketknife', I think that doesn't sound like a weapon at all, so it's outside the statute. If it was something different, though, I'd indict.) I just don't think there's much point at applying pressure in the wrong spot. I'm pretty sure there's no double jeopardy rule w/r/t indictment -- if the prosecution doesn't get an indictment when they want one, they can just try again with the next grand jury. That doesn't make a vote not to indict useless, but I think it does make a vote not to indict because you think the prosecution's interpretation of a law is generally overbroad pretty pointless.


Posted by: LizardBreath | Link to this comment | 03-12-13 7:50 AM
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I mean just because someone has a glass cutter, a system of pulleys for lowering oneself down into art museums, a fine powder for revealing the laser security system, suction cups for lifting priceless statues, and a copy of the screenplay for Rififi in their back pocket does not mean that crowbar was intended for anything other than swatting at crows, as the name implies.


Posted by: Mister Smearcase | Link to this comment | 03-12-13 7:57 AM
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I'm actually not too clear on the standards for unconstitutional vagueness -- I've never litigated the issue. But that's got to be the problem with the statute if there is one.

Didn't one of the UK commenters say that under UK law a court could define conduct as criminal after it had already been committed? Not only was there no prohibition on ex post facto prosecutions, but they were something that happened in practice?


Posted by: LizardBreath | Link to this comment | 03-12-13 7:59 AM
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32: In fact, I have all of those things in my briefcase right now.


Posted by: LizardBreath | Link to this comment | 03-12-13 7:59 AM
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The blade in 19 would get your mate sent down for a lot longer than Chris Huhne in UK, even if he was just taking a cake to his grandma when picked up.

So would the blade in 15. Locking knives of any kind are not allowed unless you've got a good reason to be carrying one.

people would get arrested with...I forget what, some fairly innocuous things on them, and then get charged with "Possession of Burglar's Tools."

Here's your crowbar, and your centrebit
Your life-preserver (you may want to hit)
Your silent matches, your dark lantern seize,
Take your file, and your skeletonic keys.

With CAT! LIKE! TREAD! upon our prey we steal,
In SI! LENCE! DEAD! our cautious way we feel,
NO! SOUND! AT ALL! we never speak a word,
A fly's footfall would be distinctly heard...


Posted by: ajay | Link to this comment | 03-12-13 8:01 AM
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36

I mean just because someone has a glass cutter, a system of pulleys for lowering oneself down into art museums, a fine powder for revealing the laser security system, suction cups for lifting priceless statues, and a copy of the screenplay for Rififi in their back pocket does not mean that crowbar was intended for anything other than swatting at crows, as the name implies.

Perfectly understandable to be carrying that lot if you are an academic ninja-historian.

Quick! To the faculty ekranoplan!


Posted by: ajay | Link to this comment | 03-12-13 8:03 AM
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37

I think the last line would be rhythmically improved by a change to "The footfall of a fly …".


Posted by: nosflow | Link to this comment | 03-12-13 8:03 AM
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38

|| US Army unit fires 10,000 rounds in battle, kills 40 of the enemy. Rifles are hardly weapons. |>


Posted by: CharleyCarp | Link to this comment | 03-12-13 8:05 AM
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Didn't one of the UK commenters say that under UK law a court could define conduct as criminal after it had already been committed?

That was Keir, in the hamesucken thread. Innominate crimes, they're called. http://www.unfogged.com/archives/comments_12426.html#1493533


Posted by: ajay | Link to this comment | 03-12-13 8:05 AM
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DO I TELL YOU HOW TO WRITE CODE?


Posted by: OPINIONATED SIR WILLIAM SCHWENK GILBERT | Link to this comment | 03-12-13 8:06 AM
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US Army unit fires 10,000 rounds in battle, kills 40 of the enemy. Rifles are hardly weapons.

In WW2, the US army would fire 15,000 rounds per enemy kill. By Vietnam, it was up to 50,000.


Posted by: ajay | Link to this comment | 03-12-13 8:08 AM
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42

Geez. Wouldn't it be more efficient to just pile the bullets on the enemy and crush them to death?


Posted by: LizardBreath | Link to this comment | 03-12-13 8:08 AM
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43

Does the statute really not have any other context? It just says "other weapon" without having mentioned particular weapons first?

If it's the statute I think it is (don't know if linking would be indiscreet in giving up a location, so I won't), it does have some other context: it contrasts "other weapon" with "handguns" and "rifles and shotguns." More importantly, it does define weapon, in a way that to me looks like it ought to be construed to exclude boxcutters and pocketknives (but could go either way). I can't imagine why the grand jury wasn't given this info (or maybe I do have the wrong statute).


Posted by: potchkeh | Link to this comment | 03-12-13 8:09 AM
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44

If you were too discreet to link, you could cut and paste the definition.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:11 AM
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45

I tend to think the UK statutes on weapons are on the whole fairly sensible. You can carry all kinds of weapon-y things if you have a good reason to be carrying them, and small pocket type knives, leatherman type tools, etc are exempt.


Posted by: nattarGcM ttaM | Link to this comment | 03-12-13 8:13 AM
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42: it's much worse than that figure makes it sound. That isn't rifle rounds fired per enemy killed by rifle fire, that's rifle rounds fired per enemy killed. And most of them were killed by artillery or bombs, not rifles.

(On the other hand, it's total rounds fired overseas, not rounds fired in combat; so includes rounds fired on shooting ranges).


Posted by: ajay | Link to this comment | 03-12-13 8:14 AM
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What's the evidentiary standard for indicting? If you're just supposed to say something like "yes, the charge seems at least plausible," presumably you could also punt the is-it-a-weapon-under-the-statute question to the jury, where the lawyers actually get to argue it out.


Posted by: Minivet | Link to this comment | 03-12-13 8:15 AM
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48
"Weapon" means anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.

That certainly includes catchall language, but the enumeration of knives in subsection (3) combined with vagueness concerns would make for a good argument, I think, that it should exclude boxcutters. Of course it could go the other way too. But it seems like the grand jury should have had the info.


Posted by: potchkeh | Link to this comment | 03-12-13 8:16 AM
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49

I have a knife in my bag right now, come to think of it. It might be legally dubious. It's a multi-tool, and I was using it to do DIY stuff yesterday, and I usually leave it in the boot of the car for little things that crop up, but because I had it out of the car yesterday I've it in my bag. Legally dubious* because the knife has a simple locking mechanism that stops it folding back when using one-handed.

* although bought over the counter in an auto tool shop, so maybe not.


Posted by: nattarGcM ttaM | Link to this comment | 03-12-13 8:16 AM
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What I think doesn't pass muster from an American point of view (and I'm honestly unsure without research whether this is legally impermissible under American law, or just the sort of thing that puts our backs up) is distinguishing between legal and criminal behavior on the basis of whether law enforcement approves of your reasons. If it's legal to carry around a box cutter at all, and you aren't doing anything wrong with it right then, you shouldn't be in trouble for having it even if you can't explain yourself.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:18 AM
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But lots of Leatherman tools have locking blades. They're still probably not very efficient killing tools, but my understanding was that they were banned in the UK too.

A significant number of the young men, and a not inconsiderable number of young women, I know carry a Leatherman at all times. If I understand MN knife law correctly, blades under 4 inches are always legal, but there may very well be some statute they could get you for.


Posted by: Natilo Paennim | Link to this comment | 03-12-13 8:18 AM
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52

37. Try singing it to the right tune. It might change your mind.


Posted by: chris y | Link to this comment | 03-12-13 8:18 AM
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53

The majority of bullets fired in combat are not primarily intended to kill so much as to make the other guy stay down and not shoot at you. Spraying bullets in the general direction of the enemy is a tried and true tactic. Suppressing fire is the term of art, I believe.


Posted by: togolosh | Link to this comment | 03-12-13 8:19 AM
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54

48: "Or other dangerous knives" seems to me as if it might easily include a boxcutter, but not a small folding knife.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:20 AM
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52: I was thinking. Wolfson's edit makes it sound like a patter song.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:20 AM
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56

Exactly the conversation the grand jury didn't wnat to have! There was an unsurprising class/gender divide on the knife issues, with men who carry knives for work or convenience finding being surprised that they are presumptive felons.

8: Whenever anyone asked a question about a statute, the prosecutor just re-read the statute.

20: The only testimony is from the policeman who found the boxcutter, but we don't know what the suspect would have said, or whether he was in the moving business. I assumed he planned to use the boxcutter against any closed packages he woould find in the burglary, and not against any humans, since he was trying to avoid getting caught. As sated in 9, this seems t require indictment, but I'm not sure.

I did look up some of these points after grand jury service was over, and it is posisble to defend on the basis that the knife had a legitimate purpose. I guess that's a reason to indict and let it get sorted out later.

27: The "unconstitutionally vague" challenge seems plausible, but has not been successful.

I was most sympathetic ot the drunk with a bunch of largish knives in his car. If the knives aren't illegal in themselves, then it must be legal to have them in a car. And if they're not particularly useful to the commission of the crime of drunk driving, what's the evidence that transporting was not manifestly appropriate?


Posted by: unimaginative | Link to this comment | 03-12-13 8:21 AM
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54: Right, like I said, could go either way. But it gives a pretty long list of knives that look to me readily distinguishable from boxcutters; and combined with the need to avoid constitutional vagueness issues (and possibly related rule of lenity issues) I think there's a decent argument for construing the definition to exclude them. Certainly something the jury should have been allowed to think about though, no?


Posted by: potchkeh | Link to this comment | 03-12-13 8:23 AM
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And if they're not particularly useful to the commission of the crime of drunk driving, what's the evidence that transporting was not manifestly appropriate?

I think that breaks down once the switchblade is in his pocket rather than in the trunk or glove compartment. Even if his pocket is in his car, that still seems like a weapon he's carrying as opposed to transporting.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:23 AM
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Assuming Google is pointing me in the right direction, here's the definition of weapon:

"Weapon" means anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air


Posted by: Ginger Yellow | Link to this comment | 03-12-13 8:24 AM
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60

Pwned by my own tardiness.


Posted by: Ginger Yellow | Link to this comment | 03-12-13 8:24 AM
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61

37. Try singing it to the right tune. It might change your mind.

I don't know the right tune!


Posted by: nosflow | Link to this comment | 03-12-13 8:26 AM
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62

I used to use a Leatherman as my keychain, but stopped after having too many problems with security checkpoints, mostly but not entirely at airports.


Posted by: Cyrus | Link to this comment | 03-12-13 8:26 AM
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63

Halford needs to watch out when visiting Massachusetts, as this kind of thing is BANNED:

any armband, made with leather which has metallic spikes, points or studs or any similar device made


Posted by: Natilo Paennim | Link to this comment | 03-12-13 8:26 AM
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Whenever anyone asked a question about a statute, the prosecutor just re-read the statute.

Probably didn't understand it herself, if they're anything like our CPI.


Posted by: chris y | Link to this comment | 03-12-13 8:26 AM
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61: I would have thought you would have been ashamed to admit that.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:27 AM
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66

59 sounds like a sociopath's rewrite of the Cheese Shop sketch.

"Baseball bat?"
"Not much call for it round these parts."
"Not much call for it? It's the single most popular improvised weapon in the country!"
"Not round these parts, squire."


Posted by: ajay | Link to this comment | 03-12-13 8:28 AM
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48 is correct, and thanks for not posting the jurisdiction. All these things can be weapons, the question is whether there was any evidence of not manifestly approriate purpose.


Posted by: unimaginative | Link to this comment | 03-12-13 8:28 AM
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68

63: a law passed at the height of anti-Village People hysteria.


Posted by: ajay | Link to this comment | 03-12-13 8:29 AM
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69

Even if his pocket is in his car, that still seems like a weapon he's carrying as opposed to transporting.

This seems like logic chopping of rare skill. Why would someone (who, let's recall, is apt not to know about this statute or the details of its interpretation) move the knife from pocket to glove compartment? He doesn't keep the knife in the car, it's small enough to fit in the pocket without impairing his ability to drive, and after all he's just taking it from point A to point B. Sure, he's "carrying" it, but why carrying as opposed to transporting (a contrast that frankly boggles my mind, since carrying is a time-honored method of transporting)?


Posted by: nosflow | Link to this comment | 03-12-13 8:29 AM
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62: Yeah, if the TSA actually does start allowing pocketknives again, I'll put a little one back on my keychain. They're very useful, but I lost two forgetting about them before flights, and it just didn't seem worth it anymore.


Posted by: LizardBreath | Link to this comment | 03-12-13 8:30 AM
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Since the shoplifting isn't a felony, the only issue is the weapons charge.

Having recently gone to hear a talk by Michelle Alexander (The New Jim Crow), this is just depressing. LB is probably correct that the Grand Jury is not the correct stage to object, but learning about all of the restrictions that are placed on somebody once they have a felony conviction, it's sad to think about how easy it for the police to seek a felony charge if they want, and how much discretion there is.


Posted by: NickS | Link to this comment | 03-12-13 8:33 AM
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The asshole brother of a frenemy of mine once had to ditch a couple of his father's valuable antique opium pipes that he'd been using to smoke weed when he accidentally carried them into the airport. That always struck me as compound asshattery of the first water.


Posted by: Natilo Paennim | Link to this comment | 03-12-13 8:33 AM
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69: Well, the law doesn't actually make the carrying/transporting distinction I did -- the word it uses is 'possession'. Unimaginative was sympathetic to the drunk because if you're allowed to own the knives at all, you must be allowed to move them from place to place without running afoul of the law, even if the exigencies of moving something makes it seem to be temporarily in your 'possession'. And while I can see the grounds for that sympathy, the law doesn't actually appear to recognize those grounds explicitly, except in the 'manifestly appropriate' language.

The relevant analysis seems to me to be something like "Owning these knives to display/gloat over in the privacy of your own home is legal. Transporting them to a different location to display/gloat over them there is also legal. To make it 'manifestly appropriate' to transport them, you must therefore do it in a way that makes it clear that they are not available for use during the transportation process. Locked in the trunk? Fine. Taped into a cardboard box? Also fine. In the glove compartment? Getting sketchy. In your pocket? Under those circumstances, it is not manifest that you're transporting the knife from point to point rather than carrying it around for use, so you're in violation of the law."


Posted by: LizardBreath | Link to this comment | 03-12-13 8:39 AM
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74

Geez. Wouldn't it be more efficient to just pile the bullets on the enemy and crush them to death?

On of my favorite anecdotes from Rogue Warrior (which I've recommended before as somewhat hilarious in the right mood).

I was running a night-ambush, live-fire exercise. I'd strung us out into pairs along a ridgeline of dunes, forty yards above a simulated canal . . . [W]e'd be shooting at a six-by-eight-foot piece of plywood towed behind a jeep

. . .

The ridgeline erupted as six 30-round magazines were expended in unison. I was blinded by the muzzle flashes and lost my target picture but kept shooting anyway. I ejected, thrust another 30-round mag in my M16, and blasted away. So did everybody else.

...

I stomped off toward the jeep path to check the targets. ... What I discovered made me even more unhappy. There were six of us. We had each emptied two 30-round magazines at a six-by-eight target, which had been moving at a speed of five miles per hour, at a distance of 120 feet. We had fired 360 shots. There were precisely two bullet holes in the target.


Posted by: NickS | Link to this comment | 03-12-13 8:43 AM
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75

The statute violates due process and no, you shouldn't vote to indict in that circumstance.


Posted by: text | Link to this comment | 03-12-13 8:49 AM
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I've had a very similar experience to 74. IIRC it was shooting at about 150m, roughly 100 rounds per man, about 20 shooters, two man-size targets... five hits. Night shoots are difficult.


Posted by: Spencer Perceval | Link to this comment | 03-12-13 9:00 AM
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if they're not particularly useful to the commission of the crime of drunk driving, what's the evidence that transporting was not manifestly appropriate?

Well, the relevant question is: was he actually transporting the knives from A to B, and if so can he prove it? For it to be "manifestly appropriate" to have them in your car you don't have to have them locked up or anything; you just have to be actually transporting them from one place to another for a good reason, and have evidence to prove it.


Posted by: ajay | Link to this comment | 03-12-13 9:03 AM
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77: At that point we're out of the realm of what you do before a grand jury -- that'd be part of the defense, rather than something the prosecution would have to rule out as part of making a prima facie case.


Posted by: LizardBreath | Link to this comment | 03-12-13 9:06 AM
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No one's answered the bonus question. You have to abstain. There are extra people to allow the jury to get 12 votes without you, you personally don't have any basis to indict, and if this guy is a big deal and you don't indict, they'll bring him back and try again.


Posted by: LizardBreath | Link to this comment | 03-12-13 9:18 AM
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I answered the bonus question as well as all the others.


Posted by: text | Link to this comment | 03-12-13 9:20 AM
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71: Because I'm reading Slavery by Another Name, about stuff that happened 100+ years ago, the idea of people being thrown into debt peonage for supposedly carrying a supposed weapon is on my mind too. I'm also worrying about court costs from that perspective, too. Are there people who study how low-income people pay all those fees and fines? I remember a parent I've worked with who wasn't able to pay the fees to be able to graduate from the rehab program but kept getting more fees added because inability to graduate meant having to attend and keep paying for the thrice-weekly meetings. There's just so much sad stuff that goes on.

I would definitely abstain on the bonus question.


Posted by: Thorn | Link to this comment | 03-12-13 9:25 AM
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OT: has someone mocked Halford with this yet? It DEMANDS an orange post title.


Posted by: Von Wafer | Link to this comment | 03-12-13 9:35 AM
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82. I read another thing about that somewhere. Sounds like she's doing yeoman's work there. Might buy it.


Posted by: chris y | Link to this comment | 03-12-13 9:39 AM
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82: You know, I saw that yesterday and almost bundled it up with this ("Misguided Nostalgia for Our Paleo Past" by the author of the book) and sent to heebie for a guest post. But, you know, it would have taken some work. And all I could think of for commentary was either "Have at it", or "Go!"


Posted by: JP Stormcrow | Link to this comment | 03-12-13 9:45 AM
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I emailed it to one of the front page posters earlier today, funnily enough.


Posted by: nattarGcM ttaM | Link to this comment | 03-12-13 9:46 AM
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Go!


Posted by: JP Stormcrow | Link to this comment | 03-12-13 9:48 AM
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Even if we wanted to live like cavemen, Zuk points out (noting that the desire to do so somehow never seems to extend to moving into mud huts)

Cavemen, by definition, do not live in mud huts!


Posted by: ajay | Link to this comment | 03-12-13 9:51 AM
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I assume you are asking the bonus question for a friend.


Posted by: JP Stormcrow | Link to this comment | 03-12-13 9:51 AM
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87: How about a mud hut on a boat in a cave?


Posted by: JP Stormcrow | Link to this comment | 03-12-13 9:52 AM
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Cavemen, by definition, do not live in mud huts!

On the veldt, we had summer cottages mud huts.


Posted by: Von Wafer | Link to this comment | 03-12-13 9:59 AM
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re: mud huts


Lion skins draped over a geodesic dome woven from mammoth tusks, no?


Posted by: nattarGcM ttaM | Link to this comment | 03-12-13 10:02 AM
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How come Jnz got new dung beetle curtains and we didn't? Look how they shimmer!


Posted by: Awl | Link to this comment | 03-12-13 10:06 AM
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I have mentioned in the past that I was at college with someone who spent a summer in a tent in a cave. Odd chap.


Posted by: ajay | Link to this comment | 03-12-13 10:08 AM
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There's basically no one in the paleo community, including Loren Cordain, who would argue with the idea that (a) there was diversity in the human diet in the paleolithic period and (b) that it's possible for some genetic adaptation, such as lactase persistence, to evolve in the relatively recent past. The question is whether or not there are still adaptive issues involving eating grains (and sugars) on the scales made possible by an agricultural diet, and there's a reasonable amount of evidence that this is pretty bad for you. So I don't really see from the summary how that book comes close to the mark.

Incidentally, I'm reading After the Ice which was recommended by Ttam and Chris Y, and is a really excellent book -- kind of a model of how pop science can be written entertainingly without being too hokey and keeping close to its sources. I believe both were touting it here as somehow refuting the paleo diet theories here, though, and it's striking to me so far (about 1/2 way through) how little it does so (though the primary focus of the book isn't diet)-- first of all, it's largely concerned with the transition to the Neolithic era, secondly it largely confirms the notion of paleolithic hunters as primarily game eaters and foragers, with some cultivation of wild grains beginning in around 13,000 BC followed a few thousand years later by a full scale agricultural revolution.


Posted by: Robert Halford | Link to this comment | 03-12-13 10:15 AM
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There is a "paleo community"? First question: is it housed in caves or mud huts? Second question: really?


Posted by: Von Wafer | Link to this comment | 03-12-13 10:19 AM
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re: 94.last

I heard about it via Chris Y. I don't think I ever described it as refuting paleo theories as such. Just as providing evidence that grains and other foods have been consumed for a long time.


Posted by: nattarGcM ttaM | Link to this comment | 03-12-13 10:21 AM
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95 -- sure. We're going to take on the "international community" with atlatls and win.

Just for kicks, here's a 2001 paper by Cordain, which specifically addresses (and acknowledges the general correctness of!) both of the criticisms advanced in the summary in 82, but advances some other arguments why a generally "paleo" (in quotes -- this means a modern Western diet modified in particular ways) still might be a good idea.


Posted by: Robert Halford | Link to this comment | 03-12-13 10:41 AM
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We're going to take on the "international community" with atlatls and win forks and hope.


Posted by: LizardBreath | Link to this comment | 03-12-13 10:45 AM
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Wow, so many authoritarians among us. No, no, no, and no (or abstain). 30, 71, and 81 bring up some key considerations here. Being indicted on a felony, from what I hear, is an absolutely awful experience, not just an "inconvenience and PITA" as per 2.

Look, if you generally agree that our level of incarceration is insane, which I'm sure most of us here do, then what's wrong with this heuristic?: if your vote is even remotely close to being pivotal--which is to say, if almost half your fellow (bloodthirsty and mindlessly trusting of policemen) citizens are ready to say "no charge"--then the situation is way below the line at which a felony should be in the offing.


Posted by: x.trapnel | Link to this comment | 03-12-13 10:45 AM
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Ergh. I agree that our level of incarceration is insane. I'm just not sure that random efforts to keep whatever bits of the criminal justice system we have access to from functioning is a good reaction to have to it. (I am serious about the 'not sure' bit there. There are certainly possible states of affairs where opening all the prison doors and letting everyone out would be an improvement. But I don't think we're quite there yet.)


Posted by: LizardBreath | Link to this comment | 03-12-13 11:12 AM
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I vaguely recall it being an important right for grand jurors to request information.


Posted by: text | Link to this comment | 03-12-13 11:13 AM
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100: So, better to just follow the letter of the law in the very rare moment, when we have a bit of power?


Posted by: peep | Link to this comment | 03-12-13 11:19 AM
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But calling this a "random efforts to keep whatever bits of the criminal justice system we have access to from functioning" is an unfair characterization. What I'm proposing is neither random nor about promoting chaos; it's unilaterally changing a 12/24 simple majority indictment requirement into a 12/23, slightly-more-than-simple-majority, requirement. Why is this a bad idea? As I understand it, a large part of why incarceration rates are what they are is because it's easy to pile on charges and threaten truly insane penalties if convicted; this makes it just a bit harder to do that.


Posted by: x.trapnel | Link to this comment | 03-12-13 11:22 AM
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I don't know that it's "authoritarian" to desire that people generally be subject to penalties for being intentionally and dangerously armed in manifestly inappropriate settings. I'm happy to punish a burglar who is carrying a knife more than one who isn't, and that seems like a pretty core area in which criminal penalties should be appropriate.


Posted by: Robert Halford | Link to this comment | 03-12-13 11:24 AM
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Oh, and oops, I see it's 23 total. So I should have been saying 12/23 versus 12/22.

And if what you're thinking is, "sure, it'd be better if the indictment requirement were 12/22 rather than 12/23 for everybody, but until it is, it's unfair to the defendants who *don't* have you on their grand jury to do the just thing for those who do" ... well, that's crazy talk.


Posted by: x.trapnel | Link to this comment | 03-12-13 11:24 AM
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which is to say, if almost half your fellow (bloodthirsty and mindlessly trusting of policemen) citizens are ready to say "no charge"

I will note, the one time I sat on a jury I was an advocate for acquittal, based partially on this logic -- that given a messy situation I was inclined to acquit just to keep somebody out of the criminal justice system. I ultimately changed my mind and decided that was a mistake. I don't feel too guilty about it but, given the dynamic of the jury, I think it would have made a difference if I'd advocated for conviction instead. My experience was that the fellow jurors were hardly bloodthirsty and mindless.

But I still think having a thumb on the scale against felony convictions is a good bias to have.


Posted by: NickS | Link to this comment | 03-12-13 11:28 AM
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94: I'm partial to Pollan's note that human beings can thrive on almost every diet except the standard American diet, which includes a lot of diets that are post-agriculture.


Posted by: Cala | Link to this comment | 03-12-13 11:36 AM
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107: Right -- that the problem is industrial food production much more than agriculture.


Posted by: LizardBreath | Link to this comment | 03-12-13 11:39 AM
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LB, don't you recall learning about the grand jury's ability to request information?


Posted by: text | Link to this comment | 03-12-13 12:04 PM
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104: Guns for show, knives for a pro.


Posted by: Natilo Paennim | Link to this comment | 03-12-13 12:04 PM
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Self-defense is manifestly appropriate under Heller, isn't it?

I don't think manifest propriety means the knife isn't in your pocket. 'I 'm taking it to show a friend who might buy it' is manifestly appropriate. It seems to me that the police have to show no such thing to make this claim, so I wouldn't indict either.


Posted by: CCarp | Link to this comment | 03-12-13 12:23 PM
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That is, it doesn't look to me as if manifest propriety is an affirmative defense, but that lack of manifest propriety is an element of the offense.


Posted by: CCarp | Link to this comment | 03-12-13 12:25 PM
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I think 112 is right -- that lack of manifest propriety is an element of the offense -- but 111.2 isn't, in that circumstances where the propriety isn't manifest, or to put it another way self-evident, would be enough to establish a prima facie case of lack of manifest propriety.


Posted by: LizardBreath | Link to this comment | 03-12-13 12:36 PM
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113 sounds right to me.


Posted by: Robert Halford | Link to this comment | 03-12-13 12:46 PM
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manifestly inappropriate settings

113 sounds right to me.

Per 113, it's not "manifestly inappropriate", but "not manifestly appropriate", which is very different.

It may be true that it's not manifestly appropriate to be driving (or walking!) with a knife in one's pocket (to bring it to a friend who might buy it). That seems weird to me: surely showing it to your friend who might buy it is manifestly appropriate (and obviously your friend will want to see it in person); why are extra steps necessary to make the propriety of bringing it to him manifest? Having a knife in your pocket seems like a perfectly appropriate thing to do with a knife.

But it's clearly not manifestly inappropriate to be driving or walking with a knife in your pocket.


Posted by: nosflow | Link to this comment | 03-12-13 12:59 PM
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I also agree with trapnel against LB on voting not to indict. Sure, the most appropriate place to push back might be appealing a conviction (though that also seems rather late in the process and quite burdensome for the convicted), and the prosecutors may indeed have another chance with another grand jury, but why not deny them the ability to get started this one time?


Posted by: nosflow | Link to this comment | 03-12-13 1:00 PM
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Way belated, not carrying knives may well be cultural, knecht ruprecht, but my Yankee-est relatives are most likely to carry a pocket or working knife. There's an ancestral memory of needing to cut a spile or whittle a stopping block or something. I carry a teeny tiny one, so small it's now legal on planes, I think. I prefer one a least half the diameter of an apple, but Californians (not Yankees!) were surprisingly often freaked out.

Of course it locks -- brilliant invention, locking one-handed knives, and I'm dubious that that makes them so much better for mayhem. Of course, if I were trying to hurt someone with a knife I wouldn't be duelling, I'd be trying to trick them.


Posted by: clew | Link to this comment | 03-12-13 1:09 PM
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115 -- maybe, but the circumstances here don't seem particularly sympathetic. 1 seems like kind of the paradigm case where you'd want the statute to apply -- by carrying boxcutters, which can surely be easily used as a weapon, when committing a crime, the criminal has just increased the potential for violence in his theft substantially. In number 3, the circumstances are more sympathetic, but presumably the decision to indict (and to bring the indictment) rests on the fact that the guy had a switchblade, which is pretty much never appropriate.

2 is perhaps a more borderline case (the level of appropriateness depends a bit on what kind of knife we're talking about), but I'm pretty much OK with penalizing belligerent drunks who get into minor altercations for carrying knives around with them when they do so.


Posted by: Robert Halford | Link to this comment | 03-12-13 1:09 PM
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(probably yes, only if `threatening' was stronger than it sounds, no, no.)


Posted by: clew | Link to this comment | 03-12-13 1:12 PM
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Of course, if I were trying to hurt someone with a knife I wouldn't be duelling, I'd be trying to trick them. carve mean things about them into the bark of a tree.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:14 PM
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why are extra steps necessary to make the propriety of bringing it to him manifest? Having a knife in your pocket seems like a perfectly appropriate thing to do with a knife.

I think the point of the statute is that carrying weapons around is not perfectly appropriate. That's the conduct that's presumptively prohibited. There is an exception to the prohibition for circumstances where it is manifestly appropriate for you to be carrying a weapon (which I'm reading as 'self-evident that your reason for having it is something other than wanting to have it available for use as a weapon'). But simply carrying it in your pocket doesn't get you to that exception even if your intent is innocent, because there's nothing about the circumstances that makes your innocently appropriate intent 'manifest' -- people who want to cut other people with knives also carry knives in their pockets just like you do.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:14 PM
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But simply carrying it in your pocket doesn't get you to that exception even if your intent is innocent, because there's nothing about the circumstances that makes your innocently appropriate intent 'manifest' -

The presumption of innocence thing went where?

Gosh, Tweety, I wouldn't hurt a tree. I might whisper `The king has asses' ears' into a hole, if I had already dug the hole.


Posted by: clew | Link to this comment | 03-12-13 1:18 PM
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oops.


Posted by: clew | Link to this comment | 03-12-13 1:18 PM
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The obviously solution is to peace bind it and carry another, smaller knife to break the ties in case of emergency. I imagine that would fly. Or just wear pants with peace signs on them. That's a pocket you can trust.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:19 PM
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You aren't hurting the tree. You're making it edgy with body modifications.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:19 PM
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I think the point of the statute is that carrying weapons around is not perfectly appropriate.

Ugggh. In the back of my head I keep thinking about the recent-ish case in which somebody carrying a carving knife was shot by the Seattle police.

The shooting occurred after Birk saw Williams cross the street holding a flat piece of wood and a knife with a 3-inch blade. Williams, a member of Canada's First Nations people, used the knife for carving, his family says.

Birk got out of his patrol car and followed Williams onto the sidewalk. Birk shouted at Williams to get his attention and ordered him three times to put down the knife. Birk fired when Williams didn't respond, hitting him four times.

Birk testified during the inquest that he was initially concerned because Williams showed signs of impairment while carrying a knife. He said when he sought to question Williams, Williams turned toward him with a "very stern, very serious, very confrontational look on his face."

Birk told jurors Williams "still had the knife out and [was in] a very confrontational posture" when he opened fire.

Williams, a chronic inebriate, had a blood-alcohol level measured during his autopsy at 0.18 percent, above the 0.08 percent at which a driver is deemed legally drunk.

So I'm less enthusiastic than Halford is about, "penalizing belligerent drunks who get into minor altercations for carrying knives around with them when they do so."


Posted by: NickS | Link to this comment | 03-12-13 1:21 PM
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Actually, the point of laws like these ones are to make incidents like 126 less likely.


Posted by: Robert Halford | Link to this comment | 03-12-13 1:23 PM
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In other words, if you're out drinking and want to start fighting, leave the knife at home or else bad things can go down. Seems pretty reasonable to me.


Posted by: Robert Halford | Link to this comment | 03-12-13 1:24 PM
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The presumption of innocence thing went where?

(I'm taking the statute at face value here -- as I said, I think there's a good shot the statute's unconstitutionally vague). The crime isn't carrying a weapon with the purpose of using it as weapon. If that were the crime, the prosecution would have to make a case that a defendant had that purpose, rather than some other benign purpose. Under the statute, though, the crime is carrying a weapon at all, unless there's something about the circumstances that makes it manifest, or obvious, or self-evident, that you have a reason for carrying it other than using it as a weapon.

You may think that conduct -- carrying a weapon, even with no intent to use it wrongfully, under circumstances where your benign intent isn't manifest -- shouldn't be a crime. But if it is a crime, it's a pretty easy one to establish unambiguously presumption of innocence or no.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:25 PM
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What if you want to start carving?


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:25 PM
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Or, you know, cutting onions.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:26 PM
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I certainly didn't want to accuse you of supporting police shootings. But how does the law make an incident like that less likely? Other than by discouraging people from carrying knives around, which seems like a less than ideal solution if you're a wood carver?


Posted by: NickS | Link to this comment | 03-12-13 1:26 PM
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Remember: if you plan to drink at your picnic, only bring foods you can eat whole. That hard salami could get you arrested, or worse!


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:26 PM
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... only bring foods you can eat whole. That hard salami could get you arrested ...
Oh ye of little faith.


Posted by: Eggplant | Link to this comment | 03-12-13 1:29 PM
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133: I'd think of "In a picnic basket, with a salami" as sort of a textbook example of a manifestly appropriate circumstance in which to possess a carving knife.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:30 PM
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So if you plan to murder somebody, make it look like a picnic?

Actually if you were really feeling clever you'd club them with the salami pre-picnic and then eat the murder weapon, Dahl-style.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:31 PM
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Putting on my lawyer hat, I found it odd that we were expected to indict these people for being "not manifestly appropriate," and let them disprove it. It seemed to put the burden on them to prove they were "manifestly appropriate," which would generally conflict with the general instruction that silence cannot be held against a defendant. But the rest of the group didn't see it that way.

X trapnel, there was absolutely no interest in the jury for letting people off the hook simply because the laws seemed to be unjust or stupid, not even the marijuana cases (all of which involved at least a few pounds and some other evidence of intent to distribute, such as scales). I was a little bit disappointed about that. Team libertarian has not made much headway in this county.

The grand jurors were permitted to ask questions of the witnesses, but there was no opportunity to questions suspects, so the additoinal information we wanted generally wasn't available.


Posted by: unimaginative | Link to this comment | 03-12-13 1:32 PM
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Other than by discouraging people from carrying knives around, which seems like a less than ideal solution if you're a wood carver?

That's a terrible incident, it shouldn't have happened, and all that. But I think the idea is exactly to discourage people from carrying knives around casually -- that you want a woodcarver to have his knife packed up with whatever it is he's working on until he gets to wherever he's going to sit down and carve. In a world where having your knife out as you walk around the neighborhood is something that people have internalized as a weird thing to do, the cops will have occasion to screw up like that less often. (I'm really not convinced this is a good law, but I'd say that's how this is supposed to work.)


Posted by: LizardBreath | Link to this comment | 03-12-13 1:37 PM
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If you want to punish people for wielding a knife, then do so. But mere possession is a bridge too far for me, unless the state can show that the guy has no manifestly appropriate reason for having it (on the way too or from work as a mover, is a whittler/carver) etc.

I see no one has bit on my Heller point. Why isn't 'walking around in a tough neighborhood where it's not unlikely that someone might attempt bodily harm' an appropriate reason to have a knife on one's person? The propriety of wielding it, or stabbing someone with it, can be measured when that's the conduct.


Posted by: CharleyCarp | Link to this comment | 03-12-13 1:37 PM
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I found it odd that we were expected to indict these people for being "not manifestly appropriate," and let them disprove it. It seemed to put the burden on them to prove they were "manifestly appropriate," which would generally conflict with the general instruction that silence cannot be held against a defendant.

In defense of the law (which, again, not wholehearted), you can think of it like having a license to carry. GENERALLY, you may not carry a weapon. BUT, if you have a good reason, you can acquire a temporary license by making your benign intent manifest. No manifest appropriateness, no license, and carrying the weapon is criminal. That makes a certain amount of sense to me -- it's not that you're putting a burden of proof on the defendant, you're requiring a form of primary conduct from them.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:40 PM
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Walking around where large mammals might jump from behind a tree and try to kill me is certainly adequate reason to carry weaponized pepper (which is clearly a weapon under this statute). And driving to and from a place where use is a possibility. And stopping off at a gas station on the way.


Posted by: CharleyCarp | Link to this comment | 03-12-13 1:40 PM
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141: I think that's probably right.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:44 PM
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I'd written out a response to 132, but on preview 138 makes the point better.

In practice, the statute sounds like it is used by prosecutors as an add-on charge for people who are already in trouble for something else, not primarily as a stand-alone statute, and certainly not as an attempt to send jackbooted thugs from the police force to strip away pen knives from otherwise innocent civilians. That is also basically OK by me. It's clearly OK to penalize someone more for committing a crime armed than for committing the same crime unarmed, and for obvious reasons.

I found it odd that we were expected to indict these people for being "not manifestly appropriate," and let them disprove it. It seemed to put the burden on them to prove they were "manifestly appropriate," which would generally conflict with the general instruction that silence cannot be held against a defendant.

It doesn't really read like burden shifting to me. The state has a burden to prove beyond a reasonable doubt that the use was knowing and not "manifestly appropriate"; the defense can counter either by showing that the prosecution doesn't have enough evidence on that point (that is, there's no evidence that the use wasn't appropriate), or that there's affirmative evidence of appropriate use. In the examples you cite above, there's probably enough for a prima facie showing that the use was not manifestly appropriate, I'd think. Definitely a weirdly-worded law, though.


Posted by: Robert Halford | Link to this comment | 03-12-13 1:46 PM
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What, now I'm supposed to buy a new goddamn knife for each picnic? Or go shopping, get my salami, go home, put it in a socially accepted basket, and then I can have my knife? This is not a useful principle. This protects stage-set occasional use over actual daily flexibility and utility. This is a hipster law.

Did anyone else grow up with the belief that a truly competent person could perform an emergency tracheotomy? (It might be in one of the early Girl Scout or Camp Fire Girl books.) I'm happier when I also have a Bic pen for the same reason.


Posted by: clew | Link to this comment | 03-12-13 1:48 PM
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But I think the idea is exactly to discourage people from carrying knives around casually

I know you're not defending the law, exactly. But if that's the objective then having extremely large punishments that are rarely applied (relative to the number of people with pocket knives) is a very bad way to discourage behavior.

If you really wanted to discourage people casually carrying knives have a $20 fine with a very low burden of proof.


Posted by: NickS | Link to this comment | 03-12-13 1:48 PM
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Reading this thread makes my eyes hurt -- was that the joke? A law criminalizing all not-good weapon holding, so please explain yourself, is the worst possible constitutional due process arrangement I can imagine in such little space. and grand juries get to ask questions. now review my book.


Posted by: text | Link to this comment | 03-12-13 1:49 PM
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144: at least you don't have to hide the salami.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:51 PM
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the worst possible constitutional due process arrangement I can imagine

And you've lived through the last decade.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:51 PM
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If my enemies could prosecute me for not explaining myself appropriately, I might not have.


Posted by: text | Link to this comment | 03-12-13 1:52 PM
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I believe the real message the law (and its practical application and enforcement, as described here) sends is "if you're going to carry a knife around with you, don't bring it with you when you're committing a crime, or when there's a reasonable probability of serious shit going down, i.e., it's clearly not appropriate for you to be having a knife in that situation." Which again is pretty much OK by me.


Posted by: Robert Halford | Link to this comment | 03-12-13 1:54 PM
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extremely large punishments that are rarely applied (relative to the number of people with pocket knives) is a very bad way to discourage behavior.

Great way to pick off people you have a grudge against and make everyone else nervous, though. I'm getting bobbish here.


Posted by: clew | Link to this comment | 03-12-13 1:54 PM
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Yes, the jackbooted thugs are COMING AFTER YOUR PENKNIVES.


Posted by: Robert Halford | Link to this comment | 03-12-13 1:56 PM
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150: That, I can't really endorse. "Don't worry about this law that criminalizes fairly innocuous behavior because we probably won't catch or punish you for violating it unless you've done something else bad" worries me.


Posted by: LizardBreath | Link to this comment | 03-12-13 1:56 PM
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You can add an extra penalty for using a weapon during the commission of an actual crime, Halford. But that's not the statute we're dealing with. The statute criminalizes possessing a knife -- or any sort of weapon -- unless appropriate. Did you go to law school?


Posted by: text | Link to this comment | 03-12-13 1:57 PM
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In practice, the statute sounds like it is used by prosecutors as an add-on charge . . .

My intuitions on this aren't very good -- I don't have enough contact with the criminal justice system to have a clear sense of how this plays out in real life. But I really do worry about the racial justice implications at that point -- are these laws going to applied equally, or does this provide another way for police departments which have a bad relationship with their constituency to harass people on the street?

I don't know the answer, but it does concern me.


Posted by: NickS | Link to this comment | 03-12-13 1:57 PM
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The Knifecrime Islanders are probably offline for the night, but they're all living under this regime -- is it really noticeably inconvenient?


Posted by: LizardBreath | Link to this comment | 03-12-13 1:58 PM
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I don't know the answer

What? Really? I totally know the answer.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 1:58 PM
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The Knifecrime Islanders are probably offline for the night

More likely they're watching the Barça-Milan match. Which, holy cow did I make the wrong choice in deciding to give it a pass.


Posted by: Josh | Link to this comment | 03-12-13 2:01 PM
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What? Really? I totally know the answer.

Perhaps I should have said, "knowing that there are major racial disparities in prosecution, I don't know how much of a role this particular law plays, but it worries me."


Posted by: NickS | Link to this comment | 03-12-13 2:01 PM
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``If you're not doing anything wrong, what do you have to worry about?''

While steam is coming out of my ears, I'll muse on the possibility of using the `he hit on me!' panic defense for murder. I mean, I'm female, so no gay panic, but we're known to be generally panicky, right? And I may not be cute, but guys aren't picky all the time, you know? And if he hadn't been too close I couldn't have hurt him with this little pretty knife.

Gemmunz.

I'm nearly getting sympathetic to the Britons claiming carrying the seax as a cultural obligation, but they come off as utter twerps, so no.


Posted by: clew | Link to this comment | 03-12-13 2:02 PM
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153 -- I'm describing the statute's likely practical application in the real world. But I also don't think it does, as written, criminalize fairly innocuous behavior -- it only criminalizes behavior where there's a possession of a weapon and the state is able to prove beyond a reasonable doubt that the possession was "under circumstances not manifestly appropriate for such lawful uses as it may have," with the savings clause intended to exclude the fairly innocuous uses. I don't think on a straightforward reading it criminalizes Clew's yankee penknife kept in her pocket on days when she's not having a picnic.

It's true that it's weirdly and badly worded and I guess a judge could construe the word "manifestly" in a way to create a really insane problem (i.e., you need some affirmative, clearly visible that any knife of any size you have on you is being used right now for a clearly lawful purpose, or your behavior is criminal) but there's no particular reason to read the statute that way, and I doubt that it has been construed by the courts that way in practice (thought I don't know).


Posted by: Robert Halford | Link to this comment | 03-12-13 2:04 PM
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In fact, there's a completely different statute that covers use of a weapon in the commission of a felony. The drunk driver didn't use his knife arsenal at all, and there was no way he could have used it in the commission of his particular felony.


Posted by: unimaginative | Link to this comment | 03-12-13 2:06 PM
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The scenario I'm imagining is: somebody says they got mugged at knifepoint. Cops troll the neighborhood, frisk some kid. Kid has a knife. Muggee can't make a positive ID. Kid gets hit with a weapons charge because the cops pretty much think he did it anyhow. Has to happen basically constantly, right?


Posted by: Sifu Tweety | Link to this comment | 03-12-13 2:08 PM
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156: I'm still awake, and not prime to answer it as I haven't lived here that long, but the answer for me at least is no, not really. At work, I check IDs when I sell knives at work to anyone who looks very young, we wrap knives securely so that it's clear they've just been bought, and make lots of jokes with customers about how they wouldn't want to look like they're carrying around a knife for malfeasance.

I carry a Swiss Army knife in my handbag, though I'm not sure what the regulations are on that.


Posted by: Parenthetical | Link to this comment | 03-12-13 2:08 PM
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Of course I'm not saying the statute only applies during the commission of a felony. But in each of the examples cited above, you have a situation in which someone gets in trouble with the cops for some reason, and there's an additional charge brought in connection with the knife, not an independent charge.

I imagine the drunk driver was only charged because it was a switchblade, and the size and absence of a need for such a knife was emphasized at the hearing -- am I wrong? If he'd had a penknife for cutting salami in his back pocket, there would have been no charge. As I said above, that charge only seems legitimate because of the kind of knife involved.


Posted by: Robert Halford | Link to this comment | 03-12-13 2:09 PM
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Well, I'd read 'manifest' to mean that there has to be something specific about the immediate circumstances to explain any weapon -- it's in a picnic basket with a salami; it's pepper spray and I'm in bear country; [I have no idea how to handle self-defense because I can't think of what circumstances could make an intent to use a weapon only in self-defense manifest]. I'd think little non-locking pocketknives would make it through as not 'weapons', but other than that I don't see how to read the statute otherwise.


Posted by: LizardBreath | Link to this comment | 03-12-13 2:09 PM
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166 to 161.


Posted by: LizardBreath | Link to this comment | 03-12-13 2:10 PM
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Phew, 11 has just made it clear that I'm not putting myself at risk of imprisonment! (Reading backwards has its advantages.)


Posted by: Parenthetical | Link to this comment | 03-12-13 2:12 PM
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166 -- I think even that's a bit strict. Assuming that carrying penknives even when you're not on a picnic is OK and generally considered a lawful and appropriate use, you couldn't (or, shouldn't, and my guess is probably wouldn't) fall within the statute for carrying around a penknife, even if you didn't have the picnic basket with you. The "manifest"-ness and appropriate-ness of the lawful use has to adjust with the size of the weapon and the social norms surrounding its use, and it seems odd to construe the statute otherwise.


Posted by: Robert Halford | Link to this comment | 03-12-13 2:14 PM
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166: right! And who's going to believe some black teenager who says he has to chop onions for dinner for his girlfriend and she has shitty kitchen knives?

Lesson: do not ever carry a knife when you're a black teenager, lest you risk not just arrest but fully legitimate prosecution.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 2:16 PM
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I'm already inconvenienced; a penknife is about half the length I'd choose to carry for useful daily purposes. (bigger ones with thicker spines are also pry tools, for instance). It's not quite the radius of a large apple, FFS. And I am as white, as timid, as audibly related to lawyers as one gets, and have still been lectured by people with power who considered a larger knife "inappropriate".

Eloi.


Posted by: clew | Link to this comment | 03-12-13 2:17 PM
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171 -- well, it's not limited to penknives alone. But I'm not super psyched about letting you carry a machete down the street in a major city just because you say you're a nice person, particularly if you're burglarizing homes or getting drunk and starting altercations in convenience stores.


Posted by: Robert Halford | Link to this comment | 03-12-13 2:21 PM
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Pause/ play. I hope it's not rude to interrupt, but I'm in the midst of mulling over a legal/ internet privacy issue, and here are all the relevant people!

If one were, just hypothetically, to be called on to take a public stand about a university's right to read its employees' email, what issues might one want to consider?


Posted by: Mme. Merle | Link to this comment | 03-12-13 2:27 PM
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That particular hypothetical situation sounded hypothetically utterly shitty to me, since they were hypothetically just trying to avoid hypothetically bad PR, as far as I could hypothetically tell. I am not sure what downside there would be to coming out against it, hypothetically, but I admit I am not enormously well informed.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 2:36 PM
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Ah, that's helpful, thanks. I've gotten so allergic to the self-righteous opining of the outraged humanities professor that I tend to overcompensate and side with the powers that be. This is a good reminder not to.


Posted by: Mme. Merle | Link to this comment | 03-12-13 2:39 PM
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173: I don't know if I'm a relevant person, since this isn't the kind of thing I'd usually do.

But, I believe by far the most likely answer is that the University has the "right" to read its employees' emails sent to or from a university account absent some contractual agreement to the contrary.

But just because the University has the right to do something it doesn't mean it's the right thing to do, and it's worth having policies strictly delineated, so I'd ask the following questions:

What, if any, is the university's written policy on email use? Anything relevant in contracts with employees?

To what extent is there a practice of University employees using their email for personal use?

Who is doing the reading, and for what purpose?

N.b., I know nothing about the hypothetical situation, though ST seems to.


Posted by: Robert Halford | Link to this comment | 03-12-13 2:40 PM
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Oh, I see. Almost certainly completely legal. Whether it violates some kind of powerful community norm and should be criticized on that ground, or was shitty for some other reason, is something that's beyond my competency and there's no way I'm reading more about that.


Posted by: Robert Halford | Link to this comment | 03-12-13 2:43 PM
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I have very little relevant expertise, but I'm with Halford that I don't think there's anything legal, really, to keep an employer from reading its employees' work emails, university or not. So thinking about it in terms of whether it's a lousy thing to do, rather than the legalities of it, seems like the way to go.


Posted by: LizardBreath | Link to this comment | 03-12-13 2:43 PM
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And now Halford is speaking to the part of me that sides with the powers that be. Because there is a policy, and the university seems to have followed it (there is some ambiguity because one policy for staff and one for faculty, and these were quasi-faculty acting in their capacity as staff, so), and the purpose of reading the emails was to determine who had leaked confidential student information to the press.


Posted by: Mme. Merle | Link to this comment | 03-12-13 2:45 PM
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There is, hypothetically, a policy that the hypothetical instutition won't do this for faculty, but they're claiming the people involved don't count as faculty because they are contingent, which also struck me as sorta lousy.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 2:46 PM
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Carrying a knife to cut your salami may not be a problem under this law, but based on a very brief review of the caselaw,* carrying a switchblade to "peel potatoes for 'the wine and potato party'" (and also stabbing someone else at the wine and potato party 11 times) will get you into trouble. Keep that in mind if you attend any wine and potato parties in this jurisdiction.

*Why yes, I do have urgent work I should be doing, why do you ask?


Posted by: potchkeh | Link to this comment | 03-12-13 2:47 PM
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Buck's birthday is coming up, and so's St Patrick's day. I think we have a party theme!


Posted by: LizardBreath | Link to this comment | 03-12-13 2:49 PM
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This would have infuriated me. It really annoys me how little guidance jurors are given about what completely vague laws actually mean (in my case "negligence"). It really pisses me off when normal ordinary behavior is felonized. I might have just voted no everywhere out of anger.

What really bugs me about this particular law is that the distinction between weapon/non-weapon totally makes no sense to me. I think the only way for me to interpret the law which is consistent with the text and not obviously insane, is that it only applies to objects whose primary use is as a weapon. Hence I would not apply it to unbroken bottles, baseball bats, box cutters, pocket knives, leatherman, carving knives, kitchen knives, etc. So I'd end up going no, no, yes, because the switchblade is the only actual weapon.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-12-13 2:51 PM
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179: so yeah that struck me as cruddy; the fact that they are quasi-faculty should really not matter in this case, and the fact that they were acting in a capacity as staff strikes me as shading things to get the outcome they want. And the confidential student records piece sounds like hooey from what I remember of what was actually leaked and reported (which spoke generally about remedies that might be available to certain classes of students). Strikes me as little other than an attempt to maintain control over a scandal and avoid negative PR, which argues against the benefit of the doubt a/f/a policy ambiguity.

Append "hypothetically" above as necessary.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 2:51 PM
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Sorry, I don't want to belabor this (Halford's already bored), but that's the big question for me. Clearly it's legal, but how lousy was it? Is this the kind of thing to be very outraged by (Tweety makes a good case about the distinguishing of the contingent faculty), or is this just the way employers work--and need to work--and protesting it is naive.

I'm off for awhile, but would appreciate any last thoughts.


Posted by: Mme. Merle | Link to this comment | 03-12-13 2:52 PM
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I've gotten so allergic to the self-righteous opining of the outraged humanities professor that I tend to overcompensate and side with the powers that be.

I had a bit of this in my first reaction, too. "What, you think this couldn't happen to you? You think you have some sort of privilege that regular employees wouldn't?"


Posted by: Blume | Link to this comment | 03-12-13 2:53 PM
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Dumb question, why isn't the drunk driver charged with the same statute for the car? A car is a much more effective and deadly weapon than a switchblade, and it's also much more clear that he was not using the car in a manifestly appropriate way because he was drunk!


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-12-13 2:54 PM
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185: I do feel like the hypothetical institution in question has REALLY not earned the benefit of the doubt when it comes to being pointlessly, intrusively secretive about everything it does.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 2:57 PM
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187: rich people are accustomed to using cars. Almost all non-symbolic work uses tools that can hurt people; people are fragile. But people who matter don't do non-symbolic labor, so it's OK to consider tools normatively threatening, as it won't affect anyone who counts.


Posted by: clew | Link to this comment | 03-12-13 3:04 PM
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189: nobody expects the tactical pen!


Posted by: Sifu Tweety | Link to this comment | 03-12-13 3:07 PM
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That's right, clew. The law is coming after manual labor! Or over educated manual labor fetishists. Hide!


Posted by: Robert Halford | Link to this comment | 03-12-13 3:08 PM
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But I'm not super psyched about letting you carry a machete down the street in a major city just because you say you're a nice person, particularly if you're burglarizing homes or getting drunk and starting altercations in convenience stores.

HOW AM I GOING TO DO MY NON-SYMBOLIC WORK REAPING CROPS WITHOUT MY MACHETE, YOU EFFETE POLTROON?


Posted by: OPINIONATED LABORER | Link to this comment | 03-12-13 3:10 PM
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I just stopped in to the recently remodeled head shop/tobacconists near my work. They had a really crap machete for sale that was marked at $44.99! All the other knives were crap too, of course, but that one really stuck out.


Posted by: Natilo Paennim | Link to this comment | 03-12-13 3:16 PM
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190: like the seax, that doesn't actually look very useful to me, but what the hell maybe I just haven't seen it. The division into harmless or weapon seems as dumb and prone to ill result as the division into comfy or sporty that has nearly wiped out utility bicycling. Mercy knows what the pocketknife equivalent of the bakfiets is.


Posted by: clew | Link to this comment | 03-12-13 3:19 PM
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Head shop machete: probably not equivalent to a bakfiets.


Posted by: clew | Link to this comment | 03-12-13 3:20 PM
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has nearly wiped out utility bicycling

I thought you lived somewhere normal; is it still 1998 there? You can't throw an artisanal donut without hitting a utility bike around here.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 3:20 PM
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The coffee shop/coffee roaster/distributor down the street from my work uses cargo bikes to deliver its coffee. I've never seen the delivery guy carrying a machete, but I bet he has a Leatherman. Also never seen him attack anyone with the cargo bike, but there's always a first time.


Posted by: Natilo Paennim | Link to this comment | 03-12-13 3:26 PM
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196, says the man who can't recall ever seeing a drivethrough ATM.


Posted by: Cryptic ned | Link to this comment | 03-12-13 3:26 PM
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[Google image search reminds me that he actually rides a standard bike with a bike trailer for the coffee, but same difference.]


Posted by: Natilo Paennim | Link to this comment | 03-12-13 3:27 PM
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I live in Davis right now, I wouldn't generalize... But I also don't think crazy expensive specialized cargo bikes make everyday bicycling common the way people tooling around on any old department-store huffy would. I hope bobos in bakfiets lead to hubbies on huffies, but seems to me we don't know yet.


Posted by: clew | Link to this comment | 03-12-13 3:28 PM
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187 -- I believe the answer is "lesser included offense" but that could be wrong.


Posted by: Robert Halford | Link to this comment | 03-12-13 3:28 PM
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196: We have plenty of utility bikes here. We even have Dutch bikes.


Posted by: Josh | Link to this comment | 03-12-13 3:29 PM
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200: no, I'm not talking about that at all. I'm talking about cheapo utility bikes from public or linus or whatever.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 3:31 PM
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The canonical bike around here is a raleigh 3-speed in terrible condition. You see a brazilian of those.


Posted by: Sifu Tweety | Link to this comment | 03-12-13 3:32 PM
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203: Public? Never heard of 'em here.


Posted by: Josh | Link to this comment | 03-12-13 3:37 PM
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I'm talking about cheapo utility bikes from public or linus or whatever.

Or for people who are less style-y, the Civia bikes, with their various front and back rack options.


Posted by: Blume | Link to this comment | 03-12-13 3:40 PM
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Holy shit! Yglesias just came out against the Paleo Diet, allowing me to focus all my anger on a single human being who embodies almost everything awful in existence (I mean, except for the truly awful people, but they're not even worthy of anger). Everyone else, I am feeling mellow around you due to my newfound laser-like Yglesias hatred.


Posted by: Robert Halford | Link to this comment | 03-12-13 3:45 PM
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I think the point of the statute is that carrying weapons around is not perfectly appropriate. That's the conduct that's presumptively prohibited. There is an exception to the prohibition for circumstances where it is manifestly appropriate for you to be carrying a weapon (which I'm reading as 'self-evident that your reason for having it is something other than wanting to have it available for use as a weapon'). But simply carrying it in your pocket doesn't get you to that exception even if your intent is innocent, because there's nothing about the circumstances that makes your innocently appropriate intent 'manifest' -- people who want to cut other people with knives also carry knives in their pockets just like you do.

So basically, when I walk to my car with my knife in my pocket, I should be prepared to, potentially, be charged with a felony? And apparently convicted, since, in fact, walking to the car with a knife in my pocket isn't manifestly appropriate (though also not manifestly inappropriate!)?

It may be true that the intention is that prosecutors will only use this law as an add-on to other charges (which, per Sifu, might only be hypothetical), but—and this is related to the discussion with Kier of (mumble) ago, you still fall under its purview regardless.

166: what's the immediate context? What if the knife is in my pocket but the picnic basket is (a) in the passenger seat (b) on the back seat (c) in the trunk (d) over there where my friends are sitting (I'm meeting them, they forgot the knife and called to ask me to bring one) ... ?

I put it to you that it is manifestly appropriate to carry a knife to a picnic even if you aren't carrying other picnic impedimenta. Someone looking just at you might not be able to make the judgment that what you're doing is manifestly appropriate, because the fact that you're bringing a knife to a gunfipicnic is not observable in, e.g., your gait. The manifest propriety of what you are doing in the enriched description is not, that is, manifested in the impoverished description (or manifested in your person).

However, any halfway decent philosophaster (i.e., lawyer) would be sure to point out that "circumstances" aren't what is immediately observable just from your mien, gait, &c. (Even the etymology tells us this.) The circumstances is not: having a knife in the pocket and taking a step; it is: bringing a knife to a picnic. In those circumstances it's manifestly appropriate; you can't tell that those are the circumstances from ten seconds' observation, but …

I am beginning to repeat myself (the miniature text box which links affords is to blame!).


Posted by: nosflow | Link to this comment | 03-12-13 3:49 PM
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Yep, nothing wrong with allowing police and prosecutors wide latitude to infer someone's intentions from the objects they carry.

http://blogs.villagevoice.com/runninscared/2013/03/transgendered_condoms.php


Posted by: Natilo Paennim | Link to this comment | 03-12-13 3:55 PM
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So basically, when I walk to my car with my knife in my pocket, I should be prepared to, potentially, be charged with a felony?

No, unless it's an inappropriate knife, like a switchblade, or there's something else inappropriate going on during your walk to the car, or unless some judge (unlikely) decides to interpret the statute to create a completely unnecessary overbreadth and vagueness problem.


Posted by: Robert Halford | Link to this comment | 03-12-13 3:59 PM
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Judges charge people with felonies?


Posted by: Sifu Tweety | Link to this comment | 03-12-13 4:01 PM
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210: I don't see anything in the statute about there being "something else inappropriate going on".


Posted by: nosflow | Link to this comment | 03-12-13 4:02 PM
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As I acknowledged, it may be that the statute is only intended to be, and in practice only actually, used as an add-on. But as I also said, that isn't part of the statute; in principle I could be charged (or just hauled off by the cops). That might be extremely indiscreet of a prosecutor/the cops, but "I shouldn't have been charged, not because I didn't trespass against the statute, but because the prosecutor shouldn't have charged me" doesn't seem like a water-tight defense (and I shouldn't be required to give one anyway). ISTR pointing all this out before, in the thread I mentioned in the comment.


Posted by: nosflow | Link to this comment | 03-12-13 4:05 PM
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or unless some judge (unlikely) decides to interpret the statute to create a completely unnecessary overbreadth and vagueness problem.

Yes, it is some judge's fault that the statute criminalizes possessing "other weapons" without this possession seeming manifestly appropriate to someone. This is a basic law school question; there's a right answer.


Posted by: text | Link to this comment | 03-12-13 4:09 PM
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Nosflow drinks too much at the picnic, and is walking back to his car with the knife in his pocket. Some idiot teenagers, seeing by his gait that he's impaired, throw rocks at him. He responds by shouting obscenities at them. Police arrive in time to meet nosflow as he's coming up to the car (he'll put his gear in it, secure other contents and take a bus home) and they see a knife like bulge in his pocket.

Felony!

Halford, you haven't made a run at the manifest appropriateness of nosflow carrying a knife to the sketchy places he's having picnics, for self- defense even if no one is bringing salami.


Posted by: CharleyCarp | Link to this comment | 03-12-13 4:13 PM
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"You see a Brazilian of those"

That's that guy who's kind of fetishy about women in fluttery skirts and heels on bikes, yeah? Also, did you see that pubic shaving may be driving pubic lice extinct? Surely PETA will get on that.


Posted by: clew | Link to this comment | 03-12-13 4:13 PM
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212 -- for reasons you've explained yourself, the category "circumstances that are manifestly appropriate for such lawful uses as it may have" encompasses (or should, and almost certainly does, as the statute is interpreted) situations in which the knife is being carried in a more-or-less normal and nonproblematic manner -- so if you're not carrying an inappropriate knife (like a switchblade) or carrying it into an inappropriate situation (like going into a convenience store with it while drunk and being threatening) you're probably OK.

As I said above, it's true it's possible to interpret the word "manifestly" in the statute (which isn't well written) to require some form of hyper-explicit demonstration of appropriateness of use. But for, reasons you've pointed out, the more natural construction of the statute is that "circumstances" include more or less normal use, e.g., bringing an (appropriate for a picnic) knife to a picnic.

210 -- I meant that unless the statute is needlessly and stupidly overbroadly interpreted by a court interpreting it as a matter of law, the exception should cover most ordinary, lawful uses.


Posted by: Robert Halford | Link to this comment | 03-12-13 4:14 PM
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Clearly what's needed here is some kind of commission to consider poorly worded or ambiguous laws and propose changes. Why hasn't anyone thought of that?


Posted by: Natilo Paennim | Link to this comment | 03-12-13 4:18 PM
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the exception should cover most ordinary, lawful uses.

What about Tweety's hypothetical in 163?


Posted by: NickS | Link to this comment | 03-12-13 4:18 PM
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217: tell it to the person who said "But simply carrying it in your pocket doesn't get you to that exception even if your intent is innocent".


Posted by: nosflow | Link to this comment | 03-12-13 4:19 PM
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215 -- the self-defense point is interesting, but I don't think there's an all-encompassing right to carry a knife in public for self defense, even after Heller. I believe California, for example, bans the concealed carry of most larger stabbing knives that would be designed largely for self defense, so self defense alone wouldn't get you to manifest appropriateness for lawful use.


Posted by: Robert Halford | Link to this comment | 03-12-13 4:20 PM
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So how many felonies do we expect an average person commits each day?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-12-13 4:21 PM
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Dwarf Lord reminded me that switchblades are legal for persons with only one hand. Also (more knife-shopper-folktalish) that NYC chefs regularly get mugged for their working knives and are supposed to keep them peace tied to prevent using them to fight off the muggers but, strangely, don't.


Posted by: clew | Link to this comment | 03-12-13 4:23 PM
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If people want to make carrying a knife while drunk illegal, they should just have a law that does just that. If they want to make carrying a knife while committing a burglary illegal, they could just put that in the burglary statute. This law is completely ridiculous.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-12-13 4:23 PM
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219 -- well, the hypothetical depends on the situation. Almost certainly, for example, carrying a Leatherman to the job in a situation where you use the Leatherman on the job wouldn't fall within the statute. Could someone independently wanted by the police for different reasons be picked up because they happen to be carrying a knife in some clearly inappropriate way, like carrying a machete down a crowded urban street? Sure, why not. Are there boundary cases that might be interesting? Sure, but the same is true for pretty much any law.


Posted by: Robert Halford | Link to this comment | 03-12-13 4:24 PM
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Sure, why not.

Because if they're independently wanted for different reasons they can already be picked up for those reasons?


Posted by: nosflow | Link to this comment | 03-12-13 4:25 PM
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like carrying a machete down a crowded urban street

Actually, around here, that's likely to get you shot. If you're Somali. And mentally ill.


Posted by: Natilo Paennim | Link to this comment | 03-12-13 4:27 PM
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226 -- but in the hypo, they've also committed a crime doing something that's independently worth criminalizing, and are being charged with that.


Posted by: Robert Halford | Link to this comment | 03-12-13 4:27 PM
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it's true it's possible to interpret the word "manifestly" in the statute (which isn't well written) to require some form of hyper-explicit demonstration of appropriateness of use

FWIW--and this is of course not legal advice nor based on a comprehensive review of the relevant law--the high court of the jurisdiction in question has in fact construed "not manifestly appropriate" to "contemplate[] either a threat of harm to a person or a threat of damage to property", i.e., something more than merely no readily apparent justification. And the state expressly bears the burden of establishing that threat while "the defendant has no burden of going forward with proof of a lawful purpose."

Still more vague than ideal, and of course the statute itself is very vague, but if a prosecutor is charging you for carrying a pocketknife simply because a cop doesn't think it's manifestly appropriate for you to do so without some affirmative justification, the prosecutor is not following the law. And once you're at that point, a better-drafted statute isn't likely to make much difference.


Posted by: potchkeh | Link to this comment | 03-12-13 4:28 PM
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By which I mean, carrying a machete down a crowded street is something that's also independently worth criminalizing. If the police strongly suspect someone of being generally a bad apple and see him carrying a machete down a crowded street, it's fine by me if they arrest him and charge him with the crime of carrying a machete down a crowded street. They aren't simply bound to charge him with nothing because they also suspect him of a crime they don't have sufficient evidence to prove. No?


Posted by: Robert Halford | Link to this comment | 03-12-13 4:29 PM
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229 is interesting and more narrow than I would have thought. It also, perhaps, makes case (c) in the original post (but probably not (a) or (b)) an improper application of the law, no?


Posted by: Robert Halford | Link to this comment | 03-12-13 4:33 PM
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Yes, Halford, the question is whether we can think of behavior we don't like that might be covered by the statute.


Posted by: text | Link to this comment | 03-12-13 4:33 PM
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That's that guy who's kind of fetishy about women in fluttery skirts and heels on bikes, yeah?

You're thinking of me.


Posted by: knecht ruprecht | Link to this comment | 03-12-13 4:48 PM
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The point of 1 being that he's probably planning on using it to damage property?

It's still a bit weird because even if he's going to use it to damage property (cut boxes), he's not planning on using it *as a weapon*. A box cutter is first and foremost a tool, not a weapon.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-12-13 5:00 PM
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234 -- The whole point of the statute is to penalize conduct where there is a likelihood of a weapon being used, but the defendant hasn't developed a full-flown intent to use the weapon as a weapon. Following Potchkeh's lead, I pulled some snippets from court cases interpreting the statute (while still trying to hide the state it comes from for some reason, remember these are snippets not a single passage).

When satisfying all statutory elements, a person commits a fourth-degree weapons offense even though he or she might not have "intended to use the object for an unlawful purpose." [The section] is concerned with the situation where someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The goal is to prevent the threat of harm."

....

The Legislature addressed the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The obvious intent of the Legislature was to address a serious societal problem, the threat of harm to others from the possession of objects that can be used as weapons under circumstances not manifestly appropriate for such lawful uses as those objects may have. Some objects that may be used as weapons also have more innocent purposes. For example, a machete can be a lethal weapon or a useful device for deep sea fishing. A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun.

....

The underlying problem is protecting citizens from the threat of harm while permitting the use of objects such as knives in a manner consistent with a free and civilized society. The statute addresses the problem by outlawing the possession of various weapons in circumstances where they pose a likely threat of harm to others. In striking a balance, the Legislature recognized that an otherwise innocent object can become such a threat.

....

[W]e are persuaded that the phrase "circumstances not manifestly appropriate" under [the statute] contemplates either a threat of harm to a person or a threat of damage to property. Neither circumstance constitutes an "innocent purpose[,]" and each falls reasonably within the statute's plain text.

I suppose the switchblade in scenario (3) falls under the statute on the theory that a switchblade is essentially always carries with it the threat of harm to persons or property, since a switchblade has so little by way of appropriate and lawful uses. But that one still seems like more of a stretch for the law as interpreted. In any event, the statute as interpreted pretty clearly doesn't criminalize walking to a picnic with a picnic knife in your pocket, carrying around a penknife or a Leatherman in ordinary circumstances, etc.


Posted by: Robert Halford | Link to this comment | 03-12-13 5:27 PM
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Halford, you seem to be making my point about the burden to get an indictment. It's not enough to tell the grand jury that the guy is a jerk with a knife. You also have to tell them that he wasn't on his way to a picnic, on her way home from work, etc.

'Contemplates a threat of harm' might be a limitation, and it might not. There are people who think some granny from the Midwest might just bring down a jetliner with a tube of toothpaste. A rule outlawing toothpaste tubes on jetliners 'contemplates a threat of harm.' That is, it applies equally to evil grandmothers from the Midwest, and innocent travelers from the Middle East.

I don't think you're overcoming either a voidness argument, or a fundamental right of self-defense argument, by positing that somewhere in the broad scope of conduct reached by this statute there are things that are dangerous.


Posted by: CharleyCarp | Link to this comment | 03-12-13 5:49 PM
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" A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun."

There are so many innocent explanations for a steak knife to end up in a car with a BB gun that it's alarming that this is part of the statute. How about, for one: "It rolled under the seat when we were going to a picnic." Sorry, felony.

I had a retractable razor blade in my pants pocket a lot of the day today. There were packages to open and paper to cut precisely! It would have been very, very easy for me to go home with it on my person, or for it to slip into my purse and stay there for an indeterminate period. I'm a cute, bespectacled, white woman nearing a certain age, so I doubt I would be in trouble. But so much of this business of adding on charges seem to be born of "well, we know he was up to no good, but we couldn't lay any of it on him." And I can understand how that would be appealing! Still: felony charges deserve to be more tightly defined, unless we just want to lock everybody up.


Posted by: Jackmormon | Link to this comment | 03-12-13 5:59 PM
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It's not enough to tell the grand jury that the guy is a jerk with a knife. You also have to tell them that he wasn't on his way to a picnic, on her way home from work, etc.

I don't see at all where you're getting that from in the statute. Is the prosecution required to provide evidence ruling out all possible appropriate lawful uses to get an indictment? Almost certainly not. It does have a burden of demonstrating at trial that the weapon was being possessed in circumstances not indicating appropriate and lawful use, but in the scenarios we have here (burglary, belligerent drunk in a convenience store, switchblade) that burden would seem to be met, at least prima facie.

There are people who think some granny from the Midwest might just bring down a jetliner with a tube of toothpaste.

Surely the threat of harm and inappropriate situation has to be objective and reasonable, not subjective, so the eggshell frightened person scenario wouldn't apply.

I had a retractable razor blade in my pants pocket a lot of the day today. There were packages to open and paper to cut precisely! It would have been very, very easy for me to go home with it on my person, or for it to slip into my purse and stay there for an indeterminate period.

And, in so doing, you almost certainly wouldn't be violating the statute, unless you had it in your purse in a circumstance where you were likely to be using it as a weapon, and, say, had it in your purse when you were also getting involved in a bar fight. And that would be because of the legal rules governing application of the statute, not just because you're white, cute, and bespectacled.


Posted by: Robert Halford | Link to this comment | 03-12-13 6:37 PM
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170.2 is something every responsible parent or guardian of a black teenager makes abundantly clear. Rowan (white but with some history of police involvement) got that lecture and the how-to-behave-with-police lecture from me as often as he did the one about consent and contraception.


Posted by: Thorn | Link to this comment | 03-12-13 6:47 PM
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But the circumstances under which possession of an "other weapon" would absolutely fuck up your life seem so slippery! You seem "threatening." You get drunk and fuck up. Suddenly you've got a felony rap?

Someone who is a really bad citizen generally won't stop with a misdemeanor sentence. Kids who are going through a really tough stretch will be crushed under a felony.


Posted by: Jackmormon | Link to this comment | 03-12-13 7:43 PM
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I don't think the statute applies if you just "look threatening." Note that there's also a knowledge requirement -- you have to intentionally take the weapon into a situation where it's likely the weapon would be used in an unlawful manner to hurt persons or property. So if you accidentally forget a pair of boxcutters somewhere in your car, and there's no evidence that you intentionally brought it into a potentially harmful situation, you're probably OK. If you get drunk and fuck up and intentionally bring a dangerous knife into the situation ... then you probably should be criminally liable.

Look, most any criminal law can be made to look bad if you hypothesize a basically innocent person who has fucked up and is a marginal case for prosecution. And of course deterrence doesn't always work. But criminalizing people for bringing dangerous weapons in inappropriate situations where there's a risk of injury seems like a totally legitimate function of the criminal law.


Posted by: Robert Halford | Link to this comment | 03-12-13 8:15 PM
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I don't see at all where you're getting that from in the statute.

"Circumstances", remember?


Posted by: nosflow | Link to this comment | 03-12-13 8:23 PM
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where it's likely the weapon would be used

Where are you getting that from the statute?


Posted by: nosflow | Link to this comment | 03-12-13 8:23 PM
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243 -- see 235.


Posted by: Robert Halford | Link to this comment | 03-12-13 8:31 PM
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nobody expects the tactical pen!

I pulled one off of a heroin dealer a couple weeks ago.

If people want to make carrying a knife while drunk illegal, they should just have a law that does just that. If they want to make carrying a knife while committing a burglary illegal, they could just put that in the burglary statute.

Enjoy those east coast liberals making weapons laws, suckers. But seriously, what you propose is exactly how it's done here.

76-10-528. Carrying a dangerous weapon while under influence of alcohol or drugs unlawful.

(1) Any person who carries a dangerous weapon while under the influence of alcohol or a controlled substance as defined in Section 58-37-2 is guilty of a class B misdemeanor. Under the influence means the same level of influence or blood or breath alcohol concentration as provided in Subsections 41-6a-502(1)(a) through(c).
(2) It is not a defense to prosecution under this section that the person:
(a) is licensed in the pursuit of wildlife of any kind; or (b) has a valid permit to carry a concealed firearm.

76-6-203. Aggravated burglary.
(1) A person is guilty of aggravated burglary if in attempting, committing, or fleeing from a burglary the actor or another participant in the crime: (a) causes bodily injury to any person who is not a participant in the crime; (b) uses or threatens the immediate use of a dangerous weapon against any person who is not a participant in the crime; or (c) possesses or attempts to use any explosive or dangerous weapon.

Posted by: gswift | Link to this comment | 03-13-13 12:15 AM
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And holy shit with the felonies there. Our misdemeanors range from class C (lowest) to class A. Possession of a weapon while intoxicated is only a B. We also have a possession of a dangerous weapon by a restricted person statute and even then a guy with a non violent felony conviction possessing a non firearm weapon would only get a class A misdemeanor charge.


Posted by: gswift | Link to this comment | 03-13-13 12:36 AM
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(2) It is not a defense to prosecution under this section that the person:
(a) is licensed in the pursuit of wildlife of any kind;

COW. Effete coastal liberal approves.


Posted by: clew | Link to this comment | 03-13-13 2:04 AM
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Along similar lines, does everyone agree that the arguments being leveled against allowing pocketknives and such back onto planes are incredibly weak and stupid?

I wouldn't say incredibly weak and stupid, but since the advent of reinforced cockpit doors, allowing a little knife blade on board seems to pose little risk.

Little risk to the pilots or, probably, for a hijacking. All the flight attendant unions would prefer that the drunk and unruly passengers F.A.'s sometimes have to deal with aren't carrying knives, however. It's not actually about 9/11, though most of their rhetoric is framed that way because it gets more public attention/sympathy.


Posted by: Sir Kraab | Link to this comment | 03-13-13 8:24 AM
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P.S. I don't know that the data supports the concern, but I'm sympathetic to not wanting knives around in a very constricted space where I'm the most likely target of unwarranted rage. Which I guess means I have to stop grumbling about not being able to carry knitting scissors. (Small! Foldable! Woudn't hurt a fly unless the fly were made of yarn!)


Posted by: Sir Kraab | Link to this comment | 03-13-13 8:35 AM
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246: Just don't try to order a drink before dinner!


Posted by: Cala | Link to this comment | 03-13-13 8:39 AM
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248, 249: I would say that in listening to forty years worth of flight attendant stories, some about belligerent drunks (and Mom was generally the person dealing with the belligerent drunks, as being large and authoritative), I never heard a story about anyone using a weapon to threaten anyone with. If you cause enough trouble on a plane, though, they are allowed to handcuff you into your seat -- I bet that surprises most people it happens to.


Posted by: LizardBreath | Link to this comment | 03-13-13 8:47 AM
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If you cause enough trouble on a plane, though, they are allowed to handcuff you into your seat -- I bet that surprises most people it happens to.

Understatement!


Posted by: redfoxtailshrub | Link to this comment | 03-13-13 8:48 AM
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all of the restrictions that are placed on somebody once they have a felony conviction

I know I'm multiply pwned, but this is so, so important. Exactly what knife should be illegal in what circumstance is one question. What should be charged as a felony is a whole different one.


Posted by: Sir Kraab | Link to this comment | 03-13-13 8:51 AM
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About the weapons law generally -- I've got a split reaction to it. Depending on how you interpret it, I think it's either ridiculous and unreasonable, but not actually all that unjust, or reasonable and not that onerous in general, but legally a very bad thing.

The way I'd naturally read it would mean that it would mostly ban carrying knives (other than little folding knives) around at all, barring an accompanying picnic basket -- 'manifest' isn't a meaningless intensifier, it means that there's something that can be directly perceived about the circumstances that makes it clear what the inoffensive purpose of the weapon is. So clew and Jackm would actually be in trouble if anyone noticed them carrying their deadly weapons around without some indication of what their harmless purposes were. This would be really inconvenient for people like clew and Jackm, who have occasion to carry knives around without immediately obvious purposes, and it would, I think, be way over-restrictive, but it seems like an ordinarily ill-advised law, not a terrible problem.

The way it actually seems to be interpreted in the caselaw (which, to be clear, I'm relying on this thread for), and what Halford's describing, seems to me to be both much more reasonable and less inconvenient, and wildly more unjust. If the standard is 'carry around whatever knives you like unless there's something about the circumstances that makes it plausible they'll be used to do harm', that lets most nice middleclass people carry whatever weapons they like, but puts people whose lives are more likely to come into contact with the police under a much tighter set of restrictions. Most people are less restricted by the law, but it seems innately unjust to me.


Posted by: LizardBreath | Link to this comment | 03-13-13 9:13 AM
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(2) It is not a defense to prosecution under this section that the person:
(a) is licensed in the pursuit of wildlife of any kind;

Suck it, professional badger chasers!


Posted by: Ginger Yellow | Link to this comment | 03-13-13 9:23 AM
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255: So, is this urban dictionary of badger--British alternate term for American vulgar term Beaver--just someone's fancy or the real thing?


Posted by: JP Stormcrow | Link to this comment | 03-13-13 7:05 PM
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254

... but puts people whose lives are more likely to come into contact with the police under a much tighter set of restrictions. ...

You mean like professional criminals.


Posted by: James B. Shearer | Link to this comment | 03-13-13 7:33 PM
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Them too.


Posted by: JP Stormcrow | Link to this comment | 03-13-13 8:15 PM
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It's not quite the radius of a large apple, FFS
Paleoman requires a blade no shorter than the radius of a non-hypnotized chicken.


Posted by: Econolicious, not a manifest tradesman | Link to this comment | 03-17-13 12:00 AM
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256. Never encountered it. On the other hand I get the impression that pretty much every noun in the English and French languages has been used in that sense at some time or another.


Posted by: chris y | Link to this comment | 03-17-13 3:18 AM
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