A guide for the rest of us

One of the most frequent online questions about carrying various weapons or tools is whether or not something is legal in certain areas. This often gets asked so much that some forums have banned them for fear of liability. However, I don’t want to leave well meaning people hanging, so I wrote the following article on the general subject. It is based on my own research into legal statutes and case law, my education in criminal law, and interviews with police officers and state’s attorneys.
A few caveats:

  • I am not an attorney, and so this is not a substitute for legal advice.
  • This was intended for United States residents, as some cultural values and legal processes may be different in other countries.
  • While firearms are given some brief mention, they are often governed separately in both perception and law. Therefore, the scope of this article is primarily about non-firearm weapons and tools such as knives.
  • This is about carrying on one’s person, not private ownership or justifiable use of force.

See the Glossary for a list of terms and acronyms frequently used in both law and internet discussions on the subject. There is a lot of misinformation out there, so also see Common Myths.

The Origins of the Law

Carrying weapons or items that can be used as weapons is not an innately evil or immoral act. This is because any such item either has a useful, lawful purpose as a tool or can be used in lawful self-defense. Laws restricting such items from being carried are based on two core purposes:

  • To prevent criminals from committing acts of violence against other people using weapons.
  • To a lesser extent, to prevent persons without criminal intentions from having weapons close at hand should they act hastily in anger.

These laws have less obvious intentions too. One is to serve as technicalities to snag criminals whose evil intent is probably apparent, but cannot easily be proven in court, based on the burden of proof. Laws based on mere possession alone, such as concealed weapon laws, enable the criminal justice system to convict and punish such persons who would otherwise have gone free and committed crimes. Like any such law however, the dark side of it is it also restricts and even punishes otherwise innocent people whose sole intent is have a useful tool handy or to defend themselves.

Another secret side of such laws is political maneuvering. Laws that target objects used in crimes, especially high-profile crimes, create the appearance that something is being done to combat such violent crime overall, and make the voting populace feel safer. For some such items that do not have the aforementioned lawful tool or defense purpose, like bombs or machine guns, restrictions are likely warranted. But for others, like switchblades or balisongs (in a nation where handguns are easily obtained), it is often intended merely to spite a certain group or element (such as ethnic gangs) or simply pander for more votes.

The Tiers of Judgment

Legality, or for that matter appropriateness, is not a simple “Yes” or “No.” The situation determines this more than anything. Most people do not realize that we are judged apart from the court system, and this can be more important in some circumstances than statutory law. The concept of “tiers” refers to the levels at which the individual is judged. The “legality” of a carried weapon must pass through a series of sieves, so to speak.

I. The Public

When you are carrying any sort of object or tool, the first people to judge if it’s appropriate (regardless of the written law) are the general public. Proper concealment and discreetness are key. If no one knows you have anything, then no one will react to it, though some items can be carried out in plain sight. However, we must be wary of what will happen if an item would be revealed, and be ready for the consequences. While regular people typically cannot make arrests, they can call the police, demand that you leave their business or home, refuse you service, give you strange looks or otherwise give you a hard time.
Getting “caught” can happen a number of ways:

  • Plain sight (or “Open Carry”) – Carrying something in your hands or in a holster, or using it to perform a mundane task in public, obviously shows it to everybody. The reaction depends on what you have, for instance some items are not perceived as weapons at all. Canes, flashlights, even pepper spray and mundane-looking pocketknives in some areas are not going to get much attention. The culture of where you live plays a major part in this. In some rural areas, it’s not uncommon for hunters with large fixed blade knives on their belts to be sitting in a diner during hunting season. But heavy urban areas with a lot of violent crime might make people nervous around a metal nail file. Others are dependent on circumstances, such as you location and what you are doing. For instance, a hammer attached to your belt won’t be out of the ordinary if you are a carpenter on the job, but looks strange if you are shopping at the mall. And unless you are wearing a guard uniform, firearms usually will scare people, even if open carry is technically legal in your jurisdiction.
  • Accidental – This can be as minor as the imprint of something showing through your clothing, to the concealed item falling out on the ground where everybody can plainly see it. Again, people’s reactions tend to be based on what you had and the circumstances. Even if you can immediately produce a permit (such as for a handgun), they still will probably act nervous around you.
  • Search – Some clubs, museums and specific businesses require entrants to be searched by private security. The vast majority of the time, they will have a list posted of what not to have. Deliberately try to pass security while hiding something is pretty stupid, so you’d be asking for it. The result can be them barring you from entry, confiscating it, or up to detaining you and calling the police. Sometimes what you have may not be clearly prohibited. Depending on what you have, sometimes you can ask them first, but it’s best if you do this over the phone.
  • Brandishing/Attacking – Threatening someone with something you are carrying of course reveals it to everyone, and shows intent to use it as a weapon. Again, depending on the circumstances, other people will call the police, including the person you are threatening or attacking. The concept of self-defense vs. fighting applies here. What legally is classified as self-defense varies and is a discussion for another article, but remember that self-defense is an argument raised AFTER you have been arrested and are going to be tried. It does not make you immune from arrest.

II. The Police

A police officer’s judgment comes before the courts, and it may or may not jive perfectly with statutory law or case law. But again, you’d have to get “caught” first. The circumstances you would get “caught” include all of the public ones listed above, though an officer will approach and act on things directly. There are some other circumstances that would initiate a contact as well:

  • Secondary Offense – In this case, you were already committing some other crime not related to the weapon, and it is found when you get arrested and searched. In my somewhat exhaustive review of case law, this is 99% of concealed weapon cases. The person was caught because they were busy doing such things as robbing someone, beating someone up, committing a murder, breaking into someone’s house, buying and selling drugs, etc. In this case, I have little sympathy for you, and you get what you deserve.
  • Mistaken identity – Police make mistakes, and there is the chance of them grabbing you instead of the suspect they were looking for. This is rare, but it does happen. In this case, they can find a weapon upon searching you and you can be charged with a crime even after they clear your name for the mistake.
  • Stop and Frisk– This refers to a police officer approaching and searching you based on your appearance, suspicious behavior or other tip-off that seems out of place to the officer, but no overt crime (also called a “Terry Search”). In some cases, an officer may wish to search your vehicle; however, unless you are under arrest already, he or she can only do this with your permission or a search warrant. Always politely refuse to give permission even if you have nothing to hide, because there is a risk the officer may find something you didn’t know was there or that you didn’t know was illegal to have in the car. The officer can make you wait while he requests a warrant, but they’re not likely to bother unless you are being VERY suspicious.

Regardless of the method of discovery, if you were not committing an obvious crime, items that are not explicitly illegal to possess will raise some questions. Your prior criminal history and the situation you are in play a major role (see Part I)), as do things you say. An officer may ask why you have something on you right now and/or what it’s for. This is to establish intent if the item is suspicious. Answer very carefully and politely. Some jurisdictions have “specific intent” rules for lesser weapons and mundane objects, meaning that simple possession by itself is not always a crime. These jurisdictions require that there be evidence that you were going to commit a crime with it, or in some areas just use an object as a weapon (even defensively), and you statements factor into that. Therefore, it is almost always a bad idea to say something is for “self-defense” unless the item in question is pepper spray or you have a permit to carry it. Flashlights are for seeing in the dark. Knives are tools for cutting rope or apples. Walking sticks are for balance. Have a plan on what to say, make sure it is clear and plausible, and don’t be blundering around for an excuse on the spot. Do not argue or get defensive with the cop! If his or her mind is made up, you’re not going to convince them of anything; in fact you’ll just make it worse.
Hand over any item right away if told to do so, regardless of your opinions. If it is concealed or holstered, let him or her direct you. Don’t reach for it unless told to do so. The officer is doing this for his/her own safety even if that item is legal, and may return it when you are done speaking.

If a police officer discovers a weapon that he/she believes is illegal to possess in that situation, there are potentially four consequences, based on the circumstances and how serious the violation is:

  • Verbal Warning – The officer will advise you on the law, but not issue a citation or take anything. This is at the officer’s personal discretion and is often for items that may be a little suspicious, but there is no criminal intent, i.e. he or she believes you honestly didn’t know any better. For example, in some major cities it is illegal to carry any knife openly, but not illegal to carry concealed. The officer may choose to just tell you to put it away in your pocket or bag. An officer has the right to do this in certain situations, but he or she is not obligated to do so, or do it consistently.
  • Willful Forfeit– The officer will take the item if you are cooperative but not issue a citation. It is more common with simple things that aren’t worth the paperwork. This is an iffy area because it technically deprives you of due process, and the officer could be wrong about the legality. It is for this reason that many departments discourage this among officers. But at the same time, you are getting off pretty easy. Most departments require the officer to give you a receipt or other documentation that the item is being taken, but some don’t. If you really want to contest the legality of your item, ask for one if it’s not offered. Do so even if they threaten that a receipt will come paired with a citation. While citations are unpleasant, you can at least argue on more even footing in court with your attorney present.
  • Citation – The item may or may not be confiscated in this case, but you are also given a ticket for a fine or summons for a court appearance. Again, this is usually for less serious items. The citation may not be directly related to the item, mind you, so read it carefully and get a receipt for your item if it was taken.
  • Arrest – You’re handcuffed and taken to the police station. (duh) Concealed firearms without permit almost always result in immediate arrest regardless of the situation.

While police have a pretty good grasp of criminal law, they are not necessarily experts on all the little minutia of a regulation. That’s why we have courts. There are occasions where an officer thinks an item is a weapon and will take it or arrest you, even though the law does not agree. In this case, they are likely just erring on the side of caution, so it’s best not to argue. It will be sorted out later (see below).

III. The Law

Laws vary immensely from one jurisdiction to another, by state, county and city. Furthermore, specific campuses, buildings, and even businesses may have their own regulations that are even stricter. Overall, the law comes in two forms:

  1. Statute – The literal law as written and voted on by the legislature of the federal government, the state, the county or the city. In the American legal system, smaller jurisdictions can be more restrictive than the larger one in which they reside. For example, a state may have very few laws on knives, but a large urban city may make specific restrictions on things such as length or manner of carry. These can vary a great deal even in the same state, and the language used can be ambiguous.
  2. Case Law – How the statute has been previously interpreted by the courts. These decisions set precedent for future cases to be decided, and they may be unexpected compared to our own interpretations of the statute. It is frequently case law that is the deciding factor when the statute itself is very vague. For instance, many states limit the length of a knife blade. However, one state may have ruled in court the length of the blade is measured by the sharp edge, and another ruled that it is measured from the top of the handle.

The prosecuting attorney reviews a criminal case before it goes to trial. He or she has good grasp of statute and case law, and a good feel for how the court works. However, his or her judgment is also subject to personal opinions and the current political climate.

The prosecutor can decide to throw the case out, a disposition called “nolle prosequi,” meaning they are unwilling to pursue the case either because the accusation in question is not a crime (i.e. the weapon is NOT actually illegal to carry) or that a conviction is very unlikely. In this case, you are free to go. While it is possible for the prosecutor to change his or her mind and attempt to indict you again, this is pretty rare, especially for small crimes.

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