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State v. Herrmann

Court of Appeals of Wisconsin, District III

November 24, 2015

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
CORY S. HERRMANN, DEFENDANT-APPELLANT

Submitted on Briefs November 3, 2015.

APPEAL from a judgment of the circuit court for Outagamie County: DEE R. DYER, Judge. Cir. Ct. No. 2013CM354.

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.

OPINION

STARK, P.J.

Page 258

[366 Wis.2d 315] [¶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 [366 Wis.2d 316] 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

Page 259

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 [366 Wis.2d 317] 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. ...


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