If Stopped or Arrested
A trial is still an ordeal by battle. For the broadsword there is the weight of evidence; for the battle-ax, the force of logic; for the sharp spear, the blazing gleam of truth; for the rapier, the quick and flashing knife of wit.
–Lloyd Paul Stryker
You have NO need to read this article because it could never happen to you. Right? This article must have been written for knife-wielding thugs or street-gang members. Right? Why would law enforcement authorities ever come after you? Right?
Merely because you possess or carry a knife, anti-knife law enforcers may try to justify their existence by turning you into an accused “law abiding” criminal. Even though you are a careful, honest knife owner, with no intent to do anything wrong and would never knowingly break the law, this can easily happen to you. I have plenty of criminal case files chock full of examples of innocent, unsuspecting, law abiding folks having to fight their way though the justice system to “prove their innocence.”
New York City WARNING!
Never carry your knife clipped to your pocket in New York City. Even when covered by a jacket, simply moving the jacket aside to get to a wallet has been enough to get folks arrested. NYC administrative code requires that a knife be completely concealed at all times. More information on New York City’s persecution of Knife Onwrs and addtional explanation and cautions can be found here: https://kniferights.org/legislative-update/new-york-city-administrative-code-knives
If you are arrested for possession of an “illegal knife” in New York City, please contact Knife Rights at: nycity@KnifeRights.org
Perhaps you know how to defend yourself with a knife against an unprovoked assault. However, do you know what to do to protect yourself from false arrest and a malicious prosecution? Do you know how to keep your knife, stay out of jail, and not become a convicted felon? Do you know your Constitutional rights and how to invoke their shield of protection?
What I am about to tell you may save your freedom, your reputation, your property, and attorney’s fees. I am going to reveal secrets from over 20 years of criminal defense experience defending honest gun, knife and weapon owners. You can learn from my client’s mistakes. I what worked and the steps people must follow to stay out of the legal system. Steps that will at least mitigate the damages and give you the best chance for legal survival in the face of an aggressive, anti-knife prosecution.
The fundamental criminal due process protections which are of the most use and vital importance to knife owners may be summed up as three simple constitutional concepts for providing the best chance at not becoming a victim of an anti-knife prosecution. These three primary rights can be remembered by the acronym:
A Strategic Air Command (SAC) base provided the nuclear based defense to the United States from 1946 – 1992 (most of you are hopefully old enough to remember). If stopped or arrested by law enforcement on a knife violation, the S.A.C. Constitutional mnemonic provides a basic legal defense foundation for the honest knife owner (updated June 30, 2014):
S – Remain SILENT – “I assert my right to remain silent.”
A – ASK for your Attorney – “I want my/an attorney.”
C – Do NOT CONSENT to any search. Do not make or sign any statements without your attorney’s approval.
ALWAYS be RESPECTFUL, POLITE and COOPERATIVE. DO NOT PHYSICALLY RESIST under any circumstances.
You will have to REMAIN SILENT and YOU MUST REASSERT YOUR REQUEST FOR AN ATTORNEY over and over again during the arrest and interrogation process. DO NOT RELENT! Remember: SAC
#1: Remain SILENT (The “S” in SAC)
The Fifth Amendment protection against self-incrimination, also known as the “Right to Remain Silent,” is one of the most important Constitutional protections Americans have, that many other countries do not grant. Yet naive people in the United States routinely ignore Fifth Amendment protections and bury themselves with “explanations.” When it comes to a criminal violation, most law-abiding citizens are ignorant about the details of the law and its many loopholes and defenses. By opening their mouths, they remove all doubt about their ignorance and usually give the State something not just to use against them, but to twist against them. By remaining silent, a person avoids: inadvertently incriminating oneself, wiping out potential legal defenses, and assisting the State in its often unjustified case. ALWAYS remain silent after being arrested for any reason. Remaining silent is the purest form of a self-protection. Remember the old saying: The fish that opens its mouth is the one that gets caught!
If you are stopped or accosted by a Law Enforcement Officer and asked: “Why are you carrying this weapon/knife?” or “Do you have a weapon/knife on your person?” then the only safe response is to ask, “Am I free to go?” if the response is “Yes,” then walk away. If the response is “No,” then you are in custody and the above rights apply and you then respond per S.A.C , starting with Remain SILENT saying, “I assert my right to remain silent.” (See below under #3 for the exception if you are stopped in your vehicle).
You might want to view the video “Don’t Talk to Police” by Regent Law School Professor James Duane which goes into further depth about how to legally and safely respond to a Law Enforcement Officer in order to protect your rights: https://youtu.be/d-7o9xYp7eE
Knife Rights’ WARNING on Self-Defense Claims!
Again, REMAIN SILENT is the best defense against prosecution! Having said that, we get lots of calls and emails from individuals arrested for carrying a knife. Understandably, these folks are generally outraged over their arrest. It’s not unusual for them to launch into a “defense” that covers a wide range of what they view as unconstitutional actions by law enforcement during the arrest. It’s also not unusual that they have asserted a right to carry for self-defense in the process of the arrest.
When the cop asked, “why are you carrying this knife?” they claimed it’s for self-defense. In most cases, that’s an invitation to arrest. It matters not that one might argue that you have a constitutional right to do so, nay, even a basic human right, the fact is that in many places in the U.S., and especially in major metropolitan areas, that is not a recognized right. Worse, it may be prohibited by perverse interpretations of law.
Many state and local regulations prohibit carry of a knife, or any weapon, with “intent to do harm,” or some similar restriction. “Intent” requirements in criminal law are typically designed to dissuade law enforcement and prosecutors from harassing honest folks and protect them by making it difficult to prove criminality on their part, absent an actual crime. However, in this case, they twist the “intent” portion with an absurd interpretation of the law, treating an admission of carrying for self-defense as carry with intent to do harm and thereby illegal. It also serves to prove you recognize the knife is carried as a weapon and not as a tool.
It doesn’t matter how much that offends you, asserting that right on the street is a pretty reliable way to find yourself arrested, particularly in a major city. After that, it starts to get very expensive. We may be able to refer you to a good attorney, but their not-insubstantial bill is going to be on you. And, you have made it far more difficult for any attorney to defend you.
Worse, if it goes very bad for you, it can become a life-changing event that could harm you for the rest of your life.
If for some inexplicable reason you decide not to REMAIN SILENT, we strongly suggest you never claim to carry a knife for self-defense when accosted by law enforcement. Remaining SILENT is a far better strategy.
#2: ASK for your ATTORNEY (The “A” in SAC)
The Sixth Amendment guarantees an individual’s right to an attorney. By asking for your/an attorney and remaining silent, honest knife owners provide themselves with a fundamental foundation for a strong legal defense. Defense attorneys smile when they learn their clients stood firm on their rights.
Say, “I want my attorney.” If you do not already have an attorney, say, “I want an attorney.”
Requesting an attorney does much more than simply getting the accused legal counsel. Simply requesting an attorney causes a wall of constitutional protection to spring up. This wall prevents further interrogation by the authorities. After demanding an attorney, statements obtained from further interrogation made without the defendant’s attorney present, cannot be used by the State as evidence, as long as the person continues to verbally ask for an attorney. This holds true unless defendants foolishly waive their right to an attorney (see rule #3 below). The Sixth Amendment protections often apply even if information is obtained by “dirty tricks” without one’s attorney being present.
Recent court decisions require you to reassert your request for an attorney at every opportunity where you are asked a question. DO NOT relent. Continue to remain silent and ask for your attorney.
#3: Do not CONSENT to waiving ANY rights (The “C” in SAC)
A right given up is a right lost. DO NOT CONSENT TO A SEARCH WITHOUT A WARRANT. DO NOT SIGN ANY DOCUMENTS OR STATEMENTS WITHOUT AN ATTORNEY’S ADVICE. All citizens have a Fourth Amendment right to a warrant being issued before their person or premises are searched. There are exceptions to the necessity for a warrant and there is a large body of law that exists as to when law enforcement officers have justification or probable cause for a warrantless search.
However, whether an exception for the warrantless search exists or not, YOU SHOULD NEVER CONSENT TO A WARRANTLESS SEARCH.
The key here is consent. If a law enforcement officer insists on searching you, DO NOT RESIST being searched. Just make it verbally clear that you are not consenting to this search; say “I do not consent to this search.” Additionally, do not sign any consent form or, for that matter, any document, without the advice of your attorney. In some cases the officer may be allowed to ask you to sign that you received the summons. This is done so that you don’t have to be formally arrested. Additionally, if stopped while driving you may be required by law to produce your driver’s license, registration, and insurance card. Refusal of blood alcohol testing is usually unlawful as well. Check your jurisdiction’s law for specifics.
If a search is done without adequate probable cause, then the court will suppress evidence obtained after a hearing handled by your attorney, and the State will not be able to use it. When people consent to a search, then anything found may be used as evidence — evidence against them — whether there was probable cause or not! Although honest knife owners may feel that they have nothing to hide, consider that people may nonetheless possess contraband which they otherwise believed to be legal, or that others may have left or planted in their cars, in their houses, or even in their clothing.
NOT giving consent is NOT probable cause for a search. Some people feel that if they do not consent to the search, the officer will suspect them. People are afraid of the inappropriate question: “What do you have to hide?” The actual legal question, which must answered by the State at court, is: “Why did this law enforcement officer feel it was necessary to invade your privacy and conduct a search?” This question properly shifts the burden of proof to the police, as was our founding fathers intention. Remember, the Fourth Amendment is there to protect our privacy from government intrusion.
I am frequently asked by law abiding citizens about what to do when pulled over in a vehicle while transporting knives. There are two basic steps. First of all, make sure that all items are being transported lawfully. And secondly, be polite; hopefully the reason for your pullover is simply a traffic matter and will be handled as such without it blowing up into a full-fledged car/person search. The key indicator as to whether this stop is going further than a potential traffic summons will be revealed by the officer’s questions and actions.
If asked whether or not there are any weapons in the car, immediately be aware that you are in danger of becoming a victim of an anti-knife arrest. This question may be handled in many ways. However, my personal response is to ask the officer why I am being asked that question. The answer to this question goes directly to the issue of probable cause. Why are you being asked whether you have weapons in the car? Is this simply a fishing expedition on behalf of the officer or is it because a knife is in plain view on the front seat? If it is a fishing expedition, then that question is clearly unjustified. If there is a knife on the seat, then regardless of your answer you are probably looking at having your vehicle and person searched. The key here is not to give any excuses for a vehicle search. (e.g., items left in plain view, expired motor vehicle licenses, odd behaviors, etc.) If you obey the law and act in a practical and intelligent manner, you should be able to avoid vehicle/person searches.
The Bottom Line
We have all heard the Miranda Rights given on various TV cop shows and movies. We have heard them so often that many folks do not even pay attention to what these rights truly mean. The media has so belittled our Constitutional Rights that many naive citizens simply ignore them. Knife owners cannot afford to ignore them.
Always remain polite when asserting your rights, but the key is to assert them. Do not be embarrassed or intimidated into giving up your rights. If you give up your rights (apart from making my job defending you that much tougher), you will have substantially increased your chance of becoming the next horror story victim of an anti-knife arrest that your friends will be talking about while you sit in jail.
This article was written by Evan F. Nappen, Attorney at Law, adapted from an article published in BLADE Magazine, used with permission. Evan Nappen is solely responsible for this content with the exception of the “Knife Rights’ WARNING on Self-Defense Claims!” portion. To subscribe to Blade: www.blademag.com or toll-free: 877-485-642