Residual clause of criminal possession of weapon statute is vague

Kimberly Streit Vogelsberg, Clayton J. Perkins, and Kasper C. Shirer won in State v. Christopher Harris, No.116,515 (Kan. July 17, 2020), reversing a Sedgwick County criminal possession of a weapon conviction. The issue in the case involved the "residual" clause of K.S.A. 2019 Supp. 21-6304 making it illegal for a felon to possess "any other dangerous or deadly cutting instrument of like character." Mr. Harris was convicted for possessing a pocketknife. The KSC majority held that this residual clause did not provide explicit and objective standards of enforcement, it was facially unconstitutionally. On its way to its conclusion, the KSC majority observed that there are actually different analyses that can be relevant:

The challenged statute must clear two distinct—albeit relatively low—hurdles. One hurdle is grounded in the due process requirements of the Fourteenth Amendment. The other in the doctrine of separation of powers emanating from both our federal and state constitutions. On the one hand, 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." On the other hand, the law must "provide explicit standards for those who apply them" or it will amount to an "impermissibl[e] delegat[ion]" of "basic policy matters" by the legislative branch to "policemen, judges, and juries for resolution on an ad hoc and subjective basis." Finally, the need to prevent "arbitrary and discriminatory enforcement is heightened for criminal statutes because criminal violations result in the loss of personal liberty."

The KSC majority noted that many vagueness challenges are brought with respect to the first of these hurdles. But it focused the question in this case on the second:

Today's case gives us a textbook example of the same kind of enforcement guesswork that can result from a vague law. The statute makes it a crime for Harris to possess a weapon. A weapon "means a firearm or . . . a 11 dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." It is undisputed that Harris did not possess a firearm, a dagger, a dirk, a switchblade, a stiletto, or a straight-edged razor. In these circumstances, enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. 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? 

The KSC majority explained the dangers associated with vague laws in stark and dystopian terms:

It is the very overbreadth of such laws that renders them impermissibly vague. It is not necessarily because they are ambiguous on their face—an overbroad law can be very clear. The problem, in fact, may be amplified by clarity. If a law "makes everyone" a violator, then "prosecutors and the police [will] both define the law on the street and decide who has violated it." Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511 (2001). This is a world in which "almost anyone can be arrested for something." Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (Gorsuch, J., concurring in part and dissenting in part).

Even outside of many of these hypotheticals, the KSC majority held that the circumstances of the instant case showed arbitrary enforcement:

And we do not have to speculate on the answer to this question. Here we have a concrete example of government officials expressing and operating under diametrically opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action. The State of Kansas, through its prosecutors, believes (and has acted on its belief) that K.S.A. 2019 Supp. 21-6304 is meant to be enforced against Harris and his pocketknife. But the State of Kansas has also, through its Department of Corrections, published a handbook and advised parolees (including Harris) that K.S.A. 2019 Supp. 21-6304 is not meant to be enforced against Harris and his pocketknife. Even without any bad faith on the part of the government—and the record here gives us no reason to suspect there is—the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.

Using this rationale, the KSC majority held that the residual clause was unconstitutionally vague and therefore reversed and remanded with directions to dismiss the charge.

As an appellate procedure point, one interesting aspect of this decision was the inclusion of a photograph of the pocketknife at issue in the actual decision. More appellate courts have shown a willingness to include such documents in their decisions. Appellate practitioners should also think about creative ways to use such documents in their briefs as well. 

[Update: the state filed a motion for rehearing/modification on July 30, 2020.]

[Further update: the KSC denied the state's motion for rehearing/modification on August 27, 2020 and the appellate mandate issued on September 8, 2020.]