BILL ANALYSIS                                                                                                                                                                                                    







            SENATE COMMITTEE ON CRIMINAL PROCEDURE
                    Senator Milton Marks, Chair          A
                       1995-96 Regular Session           B

                                                         3
                                                         3
AB 3314 (Baldwin)                                        1
As amended May 14, 1996                                  4
Hearing date:  June 18, 1996
Penal Code
SAH:js


                SWITCHBLADE KNIVES - EXCEPTIONS

                           HISTORY

Source:  Buck Knives, Inc.    

Prior Legislation:  AB 202 - Chapter 355, Statutes of 1957

 Support:   American Cutlery Manufacturers Association;  
       Benchmade Knife Co., Inc.; Gerber Legendary Blades;  
       Bud Lang, Editor, Knives Illustrated; Spyderco;  
       California Police Pistol Association.

Opposition:  California District Attorneys Association

Assembly Floor Vote:  Ayes  68 - Noes  0



                                    KEY ISSUE

SHOULD A SPECIFIC EXCEPTION TO THE EXISTING PROHIBITION ON SWITCHBLADE KNIVES  
BE ADDED TO STATUTE TO PROVIDE THAT:

a switchblade knife does not include a knife that is designed to open with one  
hand utilizing thumb pressure applied solely to the blade of the knife or a  
thumb stud attached to the blade, unless the knife is concealed upon a person  




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with the intent to use the knife in an offensive manner?


                           PURPOSE

 Existing law contains a misdemeanor penalty applicable to  
every person who possesses in the passenger's or driver's  
area of any motor vehicle in any public place or place open  
to the public, carries upon his or her person, and every  
person who sells, offers for sale, exposes for sale, loans,  
transfers, or gives to any other person a switchblade knife  
having a blade over two inches in length.  (Penal Code  
Section 653k)

A oswitchblade knifeo is a knife having the appearance of a  
pocketknife, and shall include a spring-blade knife,  
snap-blade knife, gravity knife or any other similar type  
knife, the blade or blades of which are two or more inches  
long and which can be released automatically by a flick of a  
button, pressure on the handle, flip of the wrist or other  
mechanical device, or is released by the weight of the blade  
or by any type of mechanism whatsoever.

oPassenger's or driver's areao means that part of a motor  
vehicle which is designed to carry the driver and passengers,  
including any interior compartment or space therein.

 This bill specifies that a switchblade knife does not include  
a knife that is designed to open with one hand utilizing  
thumb pressure applied solely to the blade of the knife or a  
thumb stud attached to the blade, unless the knife is  
concealed upon a person with the intent to use the knife in  
an offensive manner.

 The purpose of this bill is to specifically exempt from the  
statutory definition of prohibited switchblade knife a design  
of knife which may be opened using one hand using pressure on  
a thumb stud or hole in the blade.

                           COMMENTS




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1.   Need for This Bill.

According to the sponsor:

     oPenal Code Section 653k prohibits the possession, sale  
     or transfer of a oswitchblade knife,o defined as a  
     oknife the blade or blades of which are more than  
     two-inches long and which can be released automatically  
     by a flick of a button, pressure on the handle, flip of  
     the wrist or other mechanical device, or is released by  
     the weight of the blade or by any type of mechanism  
     whatsoever.o  The terms oother mechanical deviceo and  
     oany mechanism whatsoevero are overly broad in that they  
     proscribe a variety of knives which are designed and  
     used for peaceful utilitarian purposes.

     oOne type of knife falling within the oany mechanism  
     whatsoevero language is a knife designed to be opened  
     with one hand via pressure on a thumb-stud or hole in  
     the blade.  Such knives are routinely used for hunting,  
     fishing, climbing or any other activity where a knife is  
     necessary, but two handed use is not possible or  
     desirable.  Owners of such knives should not be subject  
     to potential arbitrary enforcement of the overly broad  
     language currently contained in Section 653k.o

2.   Does Existing Law Apply to Types of Knives the Sponsor  
Mentions?

The existing statutory prohibition on switchblade knives was  
enacted in 1957.  Technology moves on.  One case, which  
provides background about the 1957 statute, interprets the  
Section 653k language broadly and finds two types of knives  
to be prohibited even though they may not be what most people  
would think is a switchblade knife design.  The California  
Court of Appeals, 1st District, decided in  People v.  
Quattrone, 260 Cal. Rptr. 44 (1989) that butterfly knives and  
retracting sheath knives are prohibited switchblades and  




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describes the knives as follows:

     oThe butterfly knife sold by defendant has a fixed  
     blade over two inches long.  When not in use, a  
     two-part handle is folded around the blade as a sheath  
     and is secured by a latch at the base of the knife.  To  
     open, the latch is released, allowing the two halves of  
     the sheath to swing down on pivots to form a handle  
     exposing the blade.  The handle may be secured manually  
     or closed with the latch.

     oThe Tekna sheath-retracting knife has a fixed blade  
     longer than two inches.  A two-part plastic sheath  
     protects the blade.  The sheath is spring activated and  
     retracts into the handle when the user pushes a button  
     at the bottom of the handle.o

The Court mentions the following history of the statute:

     oPenal Code section 653k defines an illegal switchblade  
     as oa spring-blade knife, snap-blade knife, gravity  
     knife or any other similar type knife, [having a blade  
     or blades] which can be released automatically . . . by  
     any type of mechanism whatsoever.o  The list of  
     prohibited knives is not exhaustive.  This language is  
     intended to cover different types of knives which  
     operate similarly to those expressly listed.  Such an  
     interpretation supports the  People's contention that  
     the term oreleased automaticallyo encompasses not only  
     knives in which the blade is quickly released from the  
     handle, but also the subject knives where the blade is  
     oset free from constraint in a spontaneous mannero by  
     the retraction or removal of the sheath.  This would  
     include both the butterfly and Tekna knives...

     o...Our conclusion is supported by the legislative  
     history of Penal Code Section 653k.  The original bill  
     became increasingly broader in scope as it went through  
     successive drafts and when it was amended.  As  
     originally proposed, the statute proscribed switchblade  




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     knives with a blade three inches or longer, but only if  
     carried concealed on a person.  (Assem. Bill No. 202  
     (1957 Reg. Sess.) @ 1)  In successive drafts, the bill  
     was broadened to bar switchblades with two-inch blades  
     (Assem. Amend. Bill No. 202 (1957 Reg. Sess.) Mar. 13,  
     1957), and to also prohibit the sale, offer for sale,  
     and transfer of such a knife (Assem. Amend. Bill No.  
     202 (1957 Reg. Sess.) Mar. 18, 1957).  It was adopted  
     in this form in 1957 (Stats. 1957, Ch. 355, @ 1, p.  
     999).  In 1959, the statute added the ogravity knifeo  
     and expanded the mode of operation to include a oflip  
     of the wristo and othe weight of the blade.o (Stats.  
     1959, Ch. 355, @ 1, p. 2278)  The Legislature intended  
     to broaden the scope of the statute to include within  
     its provision all those types of knives which operate  
     in a similar manner to the ones listed.o

GIVEN THE DISCUSSION IN  PEOPLE V. QUATTRONE, IS IT AT LEAST  
ARGUABLE THAT THE KINDS OF KNIVES WHICH WOULD BE EXEMPTED BY  
THIS BILL COULD, UNDER CURRENT LAW, BE INTERPRETED TO BE  
PROHIBITED SWITCHBLADES?  IF SO, SHOULD THEY BE PROHIBITED?

3.   Should the Knives Exempted by This Bill be Treated  
Differently Than Switchblades.

If the knives exempted from the switchblade prohibition by  
this bill are arguably included in the existing switchblade  
definition, should they be exempted?

The sponsor and supporters of this bill state that folding  
knives which have blades lengths greater than two inches  
which can be opened with one hand using a thumb tang or hole  
in the blade - and which olocko open to prevent injuries from  
folding closed during use - are currently sold and possessed  
in California and are used by not only sportsmen and women  
but are used by professionals and tradespeople, including  
firefighters, emergency medical technicians, and roofers.

This bill contains both an exception to the existing  
switchblade prohibition  and an exception to the exception:




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oSwitchblade knifeo  does not include a knife that is designed  
to open with one hand utilizing thumb pressure applied solely  
to the blade of the knife or a thumb stud attached to the  
blade,  unless the knife is concealed upon a person with the  
intent to use the knife in an offensive manner. 

That means that the exempted knives are not switchblades,  
subject to a misdemeanor penalty, unless they are concealed  
with an intent to use them in an offensive manner, in which  
case they are switchblades and the misdemeanor penalty does  
apply.

While the types of knives exempted by this bill may not pose  
an undue hazard, should the specific prohibition language in  
existing Section 653k be amended to add such ointent to useo  
conditions on what is otherwise a ban on oswitchbladeo  
knives?

IF A KNIFE IS USED IN AN OFFENSIVE MANNER, WOULD THAT NOT  
ALREADY BE SUBJECT TO EXISTING PENAL CODE SECTIONS FOR  
UNLAWFUL USE OF A WEAPON OR CRIMES AGAINST ANOTHER PERSON?

The sponsor has provided several sketchy anecdotal examples  
where a person has been cited for possessing an illegal  
oone-handedo knife.  Some describe situations where no  
unlawful activity was occurring (o1/10/95 Sacramento, CA,  
dealer charged with switch-blade knife selling under 653ko);  
others describe situations where an altercation, speeding, or  
DUI was involved and persons where charged with 653k  
violations and in some cases Penal Code Section 12020  
violations (see Comment #4).  It is unclear if anyone was  
convicted for such an offense, although in the speeding case  
the person is described as having opaid a fine because he was  
afraid he would lose his caseo.

There are no recent appellate court cases on this issue nor  
is any information beyond 8 short anecdotes available to  
indicate that law enforcement is incorrectly citing persons  
for Section 653k violations.




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4.   Another Applicable Penalty.

Penal Code Section 12020 provides a misdemeanor/felony  
penalty for an enumerated list of dangerous weapons offenses.  
 That penalty applies to any person who o...who carries  
concealed upon his or her person any dirk or daggero which is  
defined as oa knife or other instrument with or without a  
handguard that is capable of ready use as a stabbing weapon  
that may inflict great bodily injury or death.o  That section  
does make an exception by providing that:  oKnives carried in  
sheaths which are worn openly suspended from the waist of the  
wearer are not concealed within the meaningo of that section.

It would appear that the Section 12020 felony penalty for  
dirks and daggers would apply - if a knife is open, ready to  
use, and concealed - when there is no need to prove intent to  
use such a weapon in a dangerous manner while it would only  
be a misdemeanor under this bill to conceal the exempted  
knife with the intent to use it in an offensive manner.

At some point it may prove somewhat confusing to have a  
potential felony apply to dirks and daggers without any  
intent to use in an illegal manner and a misdemeanor penalty  
apply to a knife where there is the intent to use it in an  
offensive manner?  It may also be confusing to determine if  
ooffensiveo means ounlawfulo?

5.   Opposition to this bill.

The California District Attorneys Association opposes this  
bill because:












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oThe essence of the rule against switchblades isnot the  
mechanism used to open the knife, but the speed with which it  
can be deployed.  A manufacturer could make a knife that can  
be flicked open with a bit of thumb pressure on the blade.   
This exception could easily distort the rule.o

WHAT IS THE ESSENCE OF A SWITCHBLADE KNIFE?  THAT IT IS  
SPRING LOADED AND CAN BE OPENED WITH ONLY THE PUSH OF A  
BUTTON?  THAT IT MAY BE OPENED WITH A HAND MOVEMENT IF THERE  
IS NO SPRING?  THAT IT MAY BE OPENED WITH ONLY ONE HAND,  
REGARDLESS OF THE MECHANISM?

SECTION 653k IS AN ABSOLUTE BAN FIRST ADOPTED IN 1957; WOULD  
IT BE THE CONTENTION OF THE C.D.A.A. THAT THE EXISTING KNIVES  
CURRENTLY BEING SOLD IN CALIFORNIA WHICH ARE INTENDED TO FALL  
WITHIN THE EXCEPTION CREATED IN THIS BILL ARE IN FACT BANNED  
AS SWITCHBLADES UNDER CURRENT LAW?

6.   Conflict and Chaptering Concerns.

SB 1715 (Marks) is a clean-up bill which makes several  
changes to the codes; it is currently in the Assembly  
Committee on Public Safety.  It makes several oclean-upo  
changes to Penal Code Section 653k which have already been  
incorporated by Legislative Counsel in AB 2651.  If AB 2651  
moves on in the process, Section 653k could be dropped  
entirely from SB 1715 in order to avoid any chaptering  
problems.


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