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NYC Criminal Defense Attorney

Gravity Knifes Law in New York May Violate Second Amendment


New York's Law Prohibiting Gravity Knives and other Per-se Weapons May Be Unconstitutional

By Lance Fletcher, New York City Defense Attorney

An important new U.S. Supreme Court decision may have far reaching consequences. In Caetano v. Massachusetts,577 U.S. (2016) decided March 21, 2016, the U.S. Supreme Court took a look at a recent decision by the highest court in Massachusetts, the Massachusetts Supreme Judicial Court. In it, Massachusetts upheld the conviction of Caetano for illegally possessing a stun gun. Justice Alito wrote the decision reversing the conviction of a woman (Caetano) who armed herself with a stun gun to protect herself from an abusive ex-boyfriend.

Caetano had a restraining order against her ex-boyfriend and father of her children. Late one night, he confronted her when she was alone. He was a foot taller and over 100 pounds heavier than Caetano and screamed obscenities at her in a threatening manner. Frightened for her life, Caetano pulled out a stun gun and warned him “I don’t wanna have to use it on you but if you don’t leave me alone I’m gonna have to.” He got scared and ran away.

Caetano was later found in possession of the stun gun during an unrelated search and arrested. She went to trial and was convicted for violating a Massachusetts law which banned “the possession of an electrical weapon."

The U.S. Supreme Court noted that Massachusetts reached their conclusion about the illegality of a stun gun because they deemed it to be an "unusual" weapon because it wasn't something in use at the time the Second Amendment was enacted. The Court, relying on a prior decision in District of Columbia v. Heller, 554 U.S. 570 (2008), said that Massachusetts used an improper test because weapons invented since 1789 are not necessarily "unusual." Next, the Court disagreed with Massachusetts's reasoning that if the military doesn't use the weapon, it should be illegal.

Clear 2nd Amendment Test. In Caetano, the Court made it clear that a weapon can't be banned unless it is both (1) dangerous and (2) unusual and that being a relatively modern device does not make it "unusual". The Court held that best way to look at whether the weapon is permissible is to ask yourself whether it is commonly possessed by law-abiding citizens for lawful purposes today. In Caetano, the Court noted that stun guns, while less popular than handguns, are widely owned and accepted as a legitimate means of self-defense across the country. Therefore, possessing a stun gun (and presumably weapons like it) should be protected by the Second Amendment.

The Court, taking a shot at other states with similarly improper laws, said that a state cannot simply ban all weapons that are "designed and constructed to produce death or great bodily harm" and "for the purpose of bodily assault or defense." So, the relative dangerousness of the weapon is irrelevant. Applying some common sense, the Court acknowledged that weapons are inherently dangerous because that's what they are designed to be. The Court concluded that "if the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of the state authorities who may be more concerned about disarming the people than about keeping them safe."

New York Gravity knifes, switchblades, stun guns. As a New York City criminal defense attorney, I am often asked about the legality of three popular non-firearm weapons. Gravity knives, switchblades, and stun guns. A gravity knife is any knife which has a blade which is released from the handle by the force of gravity or the application of centrifugal force which, when released, is locked in place. A switchblade knife means any knife which has a blade which opens automatically by hand pressure applied to a button, spring, or other device in the handle. A stun gun means any device designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to them. In New York, Penal Law 265.01 prohibits possessing certain types of weapons under certain circumstances. Common weapons prohibited under 265.01 include

  • Electronic stun gun, gravity knife, switchblade knife, metal knuckles, imitation pistol, and other items (several other items, even "Kung Fu" stars, are prohibited)

After Caetano, how can New York's section 265.01 be upheld? There are several problems with it after Caetano. First, New York's law categorically bans stun guns which Caetano says cannot be done. Second, New York's law goes further and categorically bans other non-firearm weapons such as gravity and switchblade knives. The test in Caetano applied to gravity knives / switchblades would ask (1) is it dangerous AND (2) unusual. The answer to the first part of this would probably be "yes" but how could a gravity knife be considered unusual especially when there are accounts of paratroopers using them in World War 2? Additionally, why would the manner in which a knife is unfolded make it unusual? Wouldn't the issue be whether knives, generally, are unusual and not the manner in which they unfold? In Caetano, the Court rejected that stun guns are unusual simply because they are novel in that they use electricity or are a relatively modern invention. For policy reasons, knives, whether opened with centrifugal force or a spring, should be viewed as a better option than arming yourself with a firearm. It seems likely that in the aftermath of Caetano, the Second Amendment will be seen as protecting possession of stun guns, gravity knifes, and switchblades in New York.