January 2013 - Pg 14-Attorney Question
Robert S. Apgood
2400 NW 80th St., #130, Seattle, WA 98117-4449
First, I would serve notice on the court and prosecutor that my client would be asserting the affirmative defense of self defense to ensure that, once acquitted, (s)he would be reimbursed for all legal fees (notice is mandatory in Washington to get fee reimbursement).
Second, my client would assert the same self defense claim as a firearm self defense claim. The Second Amendment makes no distinction between firearms and other arms (knife, machete, mace, etc.); neither does Art. I, § 24 of the Washington State Constitution (“The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”). Indeed, history is replete with reference to “arms” in combatant scenarios, reaching far back in the annals of time pre-dating the advent of firearms.
The threshold inquiry under Art. I, § 24 is whether ordinary knives are “arms” within the meaning of this provision. Under even the broadest possible construction, the term “arms” extends only to weapons designed as such, and not to every utensil, instrument, or thing which might be used to strike or injure another person. Only instruments made on purpose to fight with are called arms. City of Seattle v. Montana, 129 Wn.2d 583, 590-591 (1996). Nevertheless, even if a particular knife is not an “arm” per se, the manner of use of the knife can pull it into the realm of a potential criminal charge of assault/homicide with a deadly weapon and, thus logically, into the realm of the availability of the defense. Id. Further, RCW 9.41.270, the Washington statute regarding the unlawful display of a weapon, clearly lumps knives into the list of weapons governed by the statute with respect to unlawful display.
Thus, if a particular use of a knife can draw it into the sphere of a “use of a deadly weapon,” a self-defense claim on that basis must be available to a defendant. This is a reasonable interpretation and should prevail at trial (or, more appropriately, it should prevail in a motion in limine allowing the use of the defense).
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