Quick Legal Facts
Statewide Preemption:
No.
Concealed Carry:
Concealment is not a factor.
Schools:
Pennsylvania law prohibits the possession of any knife on school grounds.
Critical Dimensions:
No.
Restricted Knives:
Any item in the broad “knife” category, “the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise,” is restricted. This restriction does not apply to “assisted opening” or “gravity” knives based on the doctrine of strict construction and interpretation of the statute by the Pennsylvania courts.
The primary Pennsylvania statute regarding knives is 908. The knife-specific language provides that automatic knives may not be possessed, and are prohibited as “offensive weapons” unless the knife is kept and dealt with “as a curio”. Most Pennsylvania knife prosecutions under 908 are based on the general catch-all language which prohibits possession of any “implement” for the infliction of serious bodily injury which serves no common lawful purpose.
Relevant Statutes:
18.907. Possessing instruments of crime
18.908. Prohibited offensive weapons
‘Offensive Weapons’ Any, . . . dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, . . . or other implement for the infliction of serious bodily injury which serves no common lawful purpose.
18.912. Possession of weapon on school property
18.913. Possession of firearm or other dangerous weapon in court facility
18.6302. Sale or lease of weapons and explosives
Statewide Preemption:
No.
Major Pennsylvania Cities with Knife Restrictive Ordinances:
Philadelphia – 10-820. Cutting Weapons in Public Places.
Restrictions on Sale or Transfer:
It is unlawful to sell or transfer any “deadly weapon” to a person under the age of 18. A knife “designed as a weapon and capable of producing death or serious bodily injury” would fit within the definition of deadly weapon set forth in 18.2301. The prosecution must provide the “designed as a weapon” element.
Concealed Carry:
Pennsylvania law does not distinguish between open or concealed carry of a weapon, except where there is intent to “employ it criminally”. 18.907.
Restrictions on Carry in Specific Locations/Circumstances:
All knives are restricted from schools, public and private, K-12. There is no statewide airport restriction. It is unlawful to possess knives at a court facility. Compliance with posted rules at Commonwealth (State) property is required by law. (18.7506. Violation of rules regarding conduct on Commonwealth property).
- The Curio Exception
While Pennsylvania courts have not allowed a “circumstances of possession” element to be used to support a conviction under 18.908 (b) provides for a defensive use of circumstance: It is a defense under this section for the defendant to prove by a preponderance of the evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that, with the exception of a bomb, grenade, or incendiary device, he complied with the National Firearms Act, or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.
Excluding bombs, grenades, or incendiary devices, it is a defense, if proven, that the knife or implement was possessed, or dealt with, solely under circumstances negating any intent or likelihood that it be used unlawfully. The focus of this exception is how it is “dealt with” meaning how is it handled or managed. “Curio” is a rationale for why a law-abiding person would even own the “offensive weapon” or “implement for the infliction of serious bodily injury which serves no common lawful purpose” in the first place. For theatrical purposes is another such explanation. The affirmative defense provided by 18.908 (b) is established where the defendant proves by a preponderance of the evidence that the circumstances of possession were benign.
We believe that the practical application of the 18.908 (b) exception is that an automatic knife may be owned as part of a collection or as a novelty. Such a knife could be displayed on a shelf or mantelpiece in one’s home. One could transport the knife to, or from, a knife show, for instance, provided it is securely encased and not within reach during transport. This would apply to all occasions when the item is possessed in public.
In the case of Commonwealth v. Walton, 380 A.2d 1278 (1977), the defendant was observed carrying a sword cane and convicted under § 908 for possession of an implement with no common lawful purpose. His curio defense that he had purchased the sword cane as an antique and was carrying it home when he was arrested, was not persuasive at the trial level and the conviction was upheld on appeal. Carrying a sword or automatic knife so that it can be immediately or easily used as a weapon, is inconsistent with possessing it solely as a curio.
- Philadelphia
There is no statewide preemption statute in Pennsylvania. Philadelphia has enacted a profoundly restrictive ordinance, offensive to both the Pennsylvania State Constitution and the U.S. Constitution, which prohibits the possession of any knife on public streets or public property:
10-820. Cutting Weapons in Public Places
(1) Definition.
Cutting Weapon. Any knife or other cutting instrument which can be used as a weapon that has a cutting edge similar to that of a knife. No tool or instrument commonly or ordinarily used in a trade, profession or calling shall be considered a cutting weapon while actually being used in the active exercise of that trade, profession or calling.
(2) Prohibited Conduct. No person shall use or possess any cutting weapon upon the public streets or upon any public property at any time.
(a) Exception: This restriction shall not apply to the use and possession of cutting tools by emergency personnel of the Philadelphia Fire Department, whether on or off duty.
(3) Penalty. The penalty for violation of this Section shall be a fine of not less than three hundred (300) dollars and imprisonment of not less than ninety days.
- Daggers
Section 908 is misread by some as explicitly prohibiting the possession of “any dagger”. However, only daggers that have a blade exposed automatically are included in the prohibition of prohibited offensive weapons.
- Assisted Opening (Blade exposed in an automatic way)
The issue of exposed “in an automatic way” was addressed by the case of Commonwealth v Ashford, 397 A.2d 420, (1979) which involved a folding knife discovered in the possession of the defendant who had been riding a motorcycle. His physical description may have been consistent with that of a criminal suspect. The Court described the knife as follows: The knife was a total of ten inches long, with a blade 4 1/2 inches long and a lock that secured the blade, either in an open or closed position. To open the knife, the lock had to be released. Once the lock was released, the blade could be exposed by a flick of the wrist. . . The officer testified that he did not know the name of this sort of knife, but it was not a ‘switchblade.’
The noun “switchblade” was not mentioned in 908. The prosecution proceeded under a 908 automatic opening theory only and offered no evidence to establish a lack of any common lawful purpose. There was no indication of some other criminal behavior on the part of the defendant apart from the issue of the knife.
The defendant was convicted at trial, however, that conviction was reversed on appeal and he was ordered discharged. The issue on appeal was whether a knife opened by a “flick of the wrist,” opened “automatically.” As to what was the legislature intended by the term “automatically,” the appeal court stated: “1) Done without conscious thought or volition, as if mechanically, or from force of habit 2) moving, operating, etc. by itself; regulating itself. A blade that must be exposed by a flick of the wrist, as the arresting officer testified, is not exposed ‘as if mechanically’ or ‘by itself.’ Furthermore, the phrase ‘exposed in an automatic way’ must be read in its context which is: ‘exposed in an automatic way by switch, push-button, spring mechanism, or otherwise’.”
A reasonable reading of this suggests that if a given knife does not open by itself with a switch, push button, or similar mechanism; then it does not fit within the opening in an automatic way prohibition of 908.
It should be noted that charges against defendant Ashford derived from the possession of a knife in February 1976. The case was decided in the era before assisted opening technology (and cell phones) had become common. Assisted opening knives have been widely available in Pennsylvania for more than a decade. During that time, the Pennsylvania legislature has not amended 908 to specifically include assisted opening knives. Moreover, it has not taken legislative action to correct the Ashford holding if, it was perceived as a misinterpretation of 908 or the result of some un-intended legislative loophole.
- Law Enforcement and Military
This is no exemption for law enforcement, military, fire-fighters, or emergency services workers. The sole such exemption pertains to “blackjack” and is limited to specified law enforcement personnel who have received state-mandated training.
- Consequences
The consequences for violating 908 are significant. There is a maximum imprisonment sentence of 5 years plus a fine of not more than $10,000. Additionally, a conviction renders a person ineligible to possess firearms under the PA Uniform Firearms Act, 18 PA C.S.A. § 6101.
