The Kansas Supreme Court has by a 4-3 vote found unconstitutionally vague the residual clause “or any other dangerous or deadly cutting instrument of like character” in K.S.A. 21-6304 because the definition fails to provide an explicit and objective standard of enforcement.

Christopher Harris is a convicted felon.  Harris was in a disturbance and pulled out a pocketknife on his adversary.  About that time a police officer came on the scene, and Harris was arrested for being a felon in possession of a knife.  “Knife” in the statute means “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character . . .” 

The trial court had no problem with that definition and convicted Harris.  The Kansas Court of Appeals agreed.  But, a badly divided Kansas Supreme Court has held that because enforcement officials must ask themselves what exactly is a dangerous cutting instrument of like character, the Court was unable to discern a sufficiently objective standard of enforcement in the definition’s language.  Instead, the majority said, “we are left with the subjective judgment of the enforcement agencies and actors.  [What is a dangerous or deadly cutting instrument of like character?]  A pair of scissors?  Maybe.  A safety razor blade?  Perhaps.  A box cutter?  Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?” 

And, it certainly did not help the State’s case that the Kansas Department of Corrections parolee handbook states “[a]n ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument.”

The Court’s dissenters would have agreed with the lower courts, saying that a pocketknife with a 3 ½ inch sharp, serrated blade cannot be mistaken as something outside the foreseeable statutory meaning of a “knife.”  But, that thought did not prevail.  So, until the statutory definition of “knife” is fixed, a felon is now only prohibited in K.S.A. 21-6304 from possessing a firearm, dagger, dirk, switchblade, stiletto, or a straight-edged razor.  What everyone would probably agree to be a “knife” has been removed from the list. 

Colin