State v. Herrmann

• Decision Date: 24 November 2015
• Docket Number: No. 2015AP53–CR.,2015AP53–CR.
• Citation: 366 Wis.2d 312,873 N.W.2d 257
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Cory S. HERRMANN, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

366 Wis.2d 312

873 N.W.2d 257

STATE of Wisconsin, Plaintiff–Respondent,

v.Cory S. HERRMANN, Defendant–Appellant.

No. 2015AP53–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 3, 2015.

Opinion Filed Nov. 24, 2015.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph N. Ehmann, state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Andrew J. Maier, assistant district attorney of Appleton; and Jeffrey J. Kassel, assistant attorney general, and Brad D. Schimel, attorney general.

Before STARK, P.J., HRUZ and SEIDL, JJ.

STARK, P.J.

¶ 1 Cory Herrmann appeals that portion of a judgment convicting him of possession of a switchblade knife, contrary to WIS. STAT. § 941.24(1).¹ Herrmann argues § 941.24(1) is unconstitutional, both facially and as applied to him, because it violates his right to bear arms, as guaranteed by the Second Amendment to the United States Constitution and article I, section 25 of the Wisconsin Constitution. We agree with Herrmann that § 941.24(1) is unconstitutional as applied to him. We therefore reverse that portion of the judgment convicting Herrmann of possession of a switchblade knife.

BACKGROUND

¶ 2 On September 2, 2012, Herrmann was injured in his home while showing his switchblade knife to a friend. Herrmann dropped the knife, and when he tried to catch it, it stabbed him in the "left groin" area, cutting his femoral artery. One of Herrmann's friends called 911, and officers responding to the scene seized the switchblade. Herrmann was charged with violating WIS. STAT. § 941.24(1), which prohibits possession of "any knife having a blade which opens by pressing a button, spring or other device in the handle or by gravity or by a thrust or movement[.]"²

¶ 3 Herrmann moved to dismiss the possession-of-a-switchblade charge. Relying on District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), Herrmann argued WIS. STAT. § 941.24(1) was unconstitutional, both facially and as applied to him, because it violated his right to bear arms. In support of his motion, Herrmann asserted he had no prior criminal convictions, was not a gang member, did not use his switchblade for any offensive purpose, and possessed the switchblade in his own home for his protection.

¶ 4 The circuit court issued a written decision and order denying Herrmann's motion to dismiss. Citing pre-Heller cases, the court stated it was Herrmann's burden to prove that WIS. STAT. § 941.24(1) was unconstitutional beyond a reasonable doubt, and the court would presume the statute was constitutional and resolve any doubt in favor of constitutionality. The court further stated it must "balance the conflicting rights of an individual to keep and bear arms for lawful purposes against the authority of the State to exercise its police power to protect the health, safety, and welfare of its citizens." Applying this test, the court ruled that, although Herrmann may have possessed the switchblade in his own home for self-defense,

[t]his is not a sufficient reason to overcome the State's interest in protecting the health, safety, and welfare of its citizens from a dangerous weapon. Herrmann could have easily used a non-prohibited weapon for his protection. The statutory ban on switchblade knives does not unreasonably impair Herrmann's right to keep and bear arms.

¶ 5 The case was then tried to the court. The parties stipulated to the facts set forth above pertaining to the circumstances of Herrmann's injury, see supra, ¶ 2, as well as the additional facts asserted in Herrmann's motion to dismiss, see supra, ¶ 3. The court found Herrmann guilty of violating WIS. STAT. § 941.24(1) and imposed a $100 fine, plus costs. Herrmann now appeals.

DISCUSSION

¶ 6 The constitutionality of a statute presents a question of law that we review independently. State v. Smith, 2010 WI 16, ¶ 8, 323 Wis.2d 377, 780 N.W.2d 90. A statute may be facially unconstitutional, meaning that it operates unconstitutionally under all circumstances. Id., ¶ 10 n. 9. Alternatively, a statute may be unconstitutional as applied, meaning that it operates unconstitutionally on the facts of a particular case or with respect to a particular party. Id. As noted above, Herrmann raises both facial and as-applied challenges to the constitutionality of WIS. STAT. § 941.24(1).

¶ 7 Specifically, Herrmann argues WIS. STAT. § 941.24(1) violates his right to bear arms, as guaranteed by both the United States and Wisconsin constitutions. The Second Amendment to the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Similarly, article I, section 25 of the Wisconsin Constitution states that "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."³

¶ 8 In Heller, the United States Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense. Heller, 554 U.S. at 592, 128 S.Ct. 2783 ; see also McDonald v. City of Chicago, 561 U.S. 742, 749–50, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Two years later, in McDonald, the Court held that this right was applicable to the States by virtue of the Fourteenth Amendment. McDonald, 561 U.S. at 750, 778, 130 S.Ct. 3020.

¶ 9 Subsequent cases applying Heller and McDonald have employed a two-step approach to Second Amendment challenges. First, a court must ask "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010). If it does not, the inquiry is complete; if it does, the court must "evaluate the law under some form of means-end scrutiny." Id. In other words, the court must inquire into "the strength of the government's justification for restricting or regulating the exercise of Second Amendment rights." Ezell v. City of Chicago,

651 F.3d 684, 703 (7th Cir.2011). Here, the State does not dispute that Herrmann's possession of a switchblade falls within the scope of the Second Amendment. We agree. Accordingly, we proceed to the second step of the inquiry and examine the strength of the State's justification for restricting Herrmann's Second Amendment rights.

¶ 10 The parties dispute the level of scrutiny we should apply in this second step of our analysis. Traditionally, courts apply the rational basis standard, intermediate scrutiny, or strict scrutiny when analyzing constitutional challenges. See, e.g., Heller, 554 U.S. at 634, 128 S.Ct. 2783. The Heller Court indicated that rational basis review is not appropriate in Second Amendment cases. Id. at 628 n. 27, 128 S.Ct. 2783. However, the Court did not specify what level of scrutiny is appropriate. See United States v. Chester, 628 F.3d 673, 676 (4th Cir.2010). Herrmann contends strict scrutiny is warranted, while the State argues we should apply intermediate scrutiny. We need not resolve this dispute because, even under the more deferential standard of intermediate scrutiny, we conclude WIS. STAT. § 941.24(1) is unconstitutional as applied to Herrmann.⁴

¶ 11 "To pass constitutional muster under intermediate scrutiny, the government has the burden of demonstrating that its objective is an important one and that its objective is advanced by means substantially related to that objective." United States v. Williams, 616 F.3d 685, 692 (7th Cir.2010). To meet this standard, the government must demonstrate "that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Notably, a law challenged on Second Amendment grounds is not presumed constitutional, see Ezell, 651 F.3d at 706 (citing Heller, 554 U.S. at 628 n. 27, 128 S.Ct. 2783 ), and the burden is on the government to establish the law's constitutionality, see Chester, 628 F.3d at 683.

¶ 12 Here, the State has failed to meet its burden to establish that WIS. STAT. § 941.24(1) is constitutional as applied to Herrmann.⁵ The State argues

WIS. STAT. § 941.24(1)

serves an important governmental objective—namely, protecting the public from the danger of potentially lethal surprise attacks posed by individuals using switchblade knives. However, the State cites no evidence to establish that this danger actually exists to any significant degree. Again, the State has the burden to establish that § 941.24(1) satisfies intermediate scrutiny, and it must do so by showing the existence of real, not merely conjectural, harm. See Turner Broad. Sys., 512 U.S. at 664, 114 S.Ct. 2445. Thus, on the record before us, we are not convinced that § 941.24(1) serves an important governmental objective.

¶ 13 Moreover, as applied to Herrmann, WIS. STAT. § 941.24(1) is not substantially related to the State's cited objective of protecting the public from surprise attacks. It is undisputed that Herrmann possessed his switchblade in his own home for his protection. The threat to the public of a surprise attack by a person possessing a switchblade in his or her own residence for the purpose of self-defense is negligible. Consequently, while banning possession of switch-blades in other settings might be substantially related to the State's cited objective of protecting the public from surprise attacks, prohibiting individuals from possessing switchblades in their own homes for their own protection is not.

¶ 14 In addition, we observe that the State's total ban on the possession of switchblades significantly burdens Herrmann's right to bear arms. The United States Supreme Court made it clear in Heller that the right to bear arms in self-defense is "central to the Second Amendment right[,]" and "the need for defense of self, family,...