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Kansas Supreme Court Announces Residual Clause of Law Prohibiting Knife Possession by Felons Unconstitutionally Vague

Christopher M. Harris was a convicted felon on post-release supervision when he was observed in an altercation with another man on a street in Wichita, Kansas. An officer turned his spotlight on the men, and Harris dropped an object, which turned out to be a pocket knife with a 3.5-inch serrated blade.

Harris was charged with aggravated assault, criminal use of a weapon, and criminal possession of a weapon by a convicted felon. Before trial, Harris moved to have the possession charge dismissed on the grounds that the statute is unconstitutionally vague.

K.S.A. 2019 Supp. 21-6304 defined a knife as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” The portion of this statute after the word ‘or’ is the residual clause, and the portion of the law under which both Harris and the State agreed he was prosecuted.

Harris also sought to introduce evidence that his parole officer had issued a letter, which stated, “You are allowed to have a pocket knife less than 4 inches in length while on post release.”

The district court denied these motions because Harris’ knife was clearly “a cutting instrument of like character,” and he should have understood the law’s clear language prohibiting his possession of it. Regarding his parole officer’s statement, the court said it was not “an official interpretation of the statute.”

Harris proceeded to trial and was found guilty on the sole charge of criminal possession of a weapon.

On appeal, the Court of Appeals upheld the district court’s ruling regarding the statute’s constitutionality but found that K.S.A 2016 Supp. 21-5111 subs. (aa)(5) and (p)(2) define his parole officer as “a public officer” who was “authorized to interpret the statute.” Therefore, excluding her statement from the trial was in error, and the outcome of Harris’ trial would have likely been different.

Both Harris and the State appealed this decision to the Kansas Supreme Court, which, to define the review, decided that Harris’ pleadings argued for a facial (unconstitutional in every circumstance with respect to everyone), as opposed to an as-applied (unconstitutional as to a specific person under a specific set of facts), constitutional challenge to the statute in question.

The Court reiterated that in order to not be unconstitutionally vague a statute must meet two requirements. The lower courts properly referenced the first requirement. A “statute that either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness.” State v. Richardson, 209 P.3d 696 (2009).

The Court explained that the lower courts glossed over or entirely missed the second requirement that states: “The law must provide explicit standards for those who apply them or it will amount to an impermissible delegation of basic policy matters by the Legislative branch to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104 (1972).

Thus, even a law that is very clear may nonetheless be unconstitutional if it makes everyone a violator. This is a world in which “almost anyone can be arrested for something.” Nieves v. Bartlett, 139 S. Ct. 1715 (2019). It is this overbreadth which was the basis for invalidating the residual clause of the federal Armed Career Criminal Act in Johnson v. United States, 576 U.S. 591 (2015) (“We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause ... invites arbitrary enforcement.”).

And arbitrary enforcement was exactly what the Kansas Supreme Court pointed to in this case. The State prosecuted Harris for possessing a 3.5-inch blade. However, the Kansas Department of Correction Division of Community and Field Services Supervision Handbook states, “An 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.”

Regarding this intra-government disagreement, the Court noted, “Even without any bad faith on the part of the government ... the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.” Thus, the Court held “that the residual clause in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague.”

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