"The price of freedom is eternal vigilance." -- Thomas Jefferson
Saturday, 19 April 2014
Main Menu
Knife Arrest! How Knife Owners Can Protect Themselves Print E-mail

By Evan F. Nappen, Attorney at Law

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?

WRONG! 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. If you are arrested for possession of an "illegal knife" in New York, 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:

S.A.C.

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). The S.A.C. Constitutional mnemonic provide a basic legal defense foundation for the honest knife owner:

  1. S - Remain Silent.
  2. A - Ask for your Attorney.
  3. C - Do not Consent to waiving any rights without your attorney’s approval.

#1: Remain SILENT. (The "S" in S. A. C.)

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 joke: The fish that opens its mouth is the one that gets caught!

#2: Ask for your ATTORNEY. (The "A" in SAC.)

The Sixth Amendment guarantees the individual's right to an attorney. By asking for your 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.

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. 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.

#3: Do not CONSENT to waiving any rights. (The "C" in SAC.)

A right given up is a right lost. Thousands of brave men and women died in war for your rights! Why would you ever voluntarily surrender your precious rights ? Giving up hard fought freedoms is an insult to the sacrifice made by our soldiers. 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, one should never consent to a warrantless search.

The key here is consent. If a law enforcement officer insists on searching you, in no way resist being searched. Just make it verbally clear that you are not consenting to this search. Additionally, do not sign any consent form or, for that matter, any document, without the advice of your attorney.

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 or guns. 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 spent shell casings are in plain view on the front seat? If it is a fishing expedition, then that question is clearly unjustified. If there are spent shell casings 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.

#4: Knife Rights suggests adding a second "C" - Contact Knife Rights toll-free at 886-889-6268 AFTER speaking with your attorney.

The Bottom Line.

We have all heard the Miranda Rights given on various TV cop shows. 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 originally published in Blade Magazine and is republished with permission. To subscribe to Blade: www.blademag.com or toll-free: 877-485-6426.

 
 
KnifeRights.org serves as the web site for both 501(c)(4) Knife Rights, Inc. and 501(c)(3) Knife Rights Foundation, Inc.  The advocacy portions of KnifeRights.org are the sole responsibility of Knife Rights, Inc.

© 2006-2013 Knife Rights, Inc. and Knife Rights
Foundation, Inc. - All rights reserved