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Appeals court: Man can legally possess switchblade in home (UPDATE)

Associated Press

MADISON, Wis. (AP) — An Appleton man can legally possess a switchblade in his home, a state appeals court ruled Tuesday. The decision didn’t address whether the state’s switchblade ban is broadly unconstitutional, however.

The ban is unconstitutional as it applies to Cory Herrmann because he uses the knife only in his home to protect himself, the 3rd District Court of Appeals said in a unanimous decision. The court stressed that its ruling applies only to Herrmann’s case.

According to court filings, Herrmann accidentally cut his own femoral artery with his spring-assisted, four-inch switchblade while showing the knife to friends in his home in 2012. He called 911 and police accompanying a responding ambulance team found the knife and a bong in the home.

Herrmann was charged with possession of a switchblade and drug paraphernalia, both misdemeanors. Outagamie County Circuit Judge Dee Dyer found him guilty of both counts following a 2014 bench trial and ordered him to pay a fine.

Herrmann, now 33, appealed the switchblade possession conviction, arguing that the ban violates his constitutional right to bear arms. He maintained he possessed the knife in his own home for protection.

State attorneys argued that the prohibition serves a crucial government goal — protecting the public from potentially deadly surprise attacks by people wielding switchblades.

The appellate court found the possession prohibition is unconstitutional as applied specifically to the facts of Herrmann’s particular case. The judges said the state’s argument that the prohibition protects public safety has nothing to do with Herrmann’s case since possession in a home for self-defense poses little to no danger to the public.

The court also said the ban significantly burdens Herrmann’s right to bear arms. The judges pointed to a 2008 U.S. Supreme Court decision overturning the District of Columbia’s handgun ban as precedent. That ban prohibited people from possessing handguns in their homes, which the high court found unconstitutional.

The court said it didn’t need to address whether the ban was broadly unconstitutional since it determined it clearly doesn’t apply in Herrmann’s specific circumstances. Case law dictates appellate decisions should be decided on as narrow grounds as possible, the court added.

The state Department of Justice defended Wisconsin’s possession prohibition. DOJ spokeswoman Anne E. Schwartz said the agency was reviewing the decision.

Herrmann’s attorney, public defender Joseph Ehmann, said he was pleased for his client but believes the court should have decided whether the ban was unconstitutional on its face.

“(The decision) doesn’t address the right to carry it outside one’s home for protection,” Ehmann said. “How do you even get the knife to your house? People can lawfully carry guns but can’t lawfully carry a knife?”

Republicans who control the state Assembly passed a bill in October that would legalize switchblades and allow people to carry them concealed.

The bill is currently sitting in the Senate. The Legislature isn’t expected to reconvene until mid-January. A spokeswoman for Senate Majority Leader Scott Fitzgerald said Senate Republicans probably won’t discuss the bill until after the holidays.

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