2010 best albers petitioner brief-1

8/2/2019 2010 Best Albers Petitioner Brief-1

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SUPREME COURT OF THE UNITED STATES

No. ALB-10-01

WALTER BLACK,

PETITIONER

v.

STATE OF ALBERS,

RESPONDENT

On Writ of Certiorari to the Supreme Court of the United States

BRIEF FOR PETITIONER

Team P1


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i

QUESTIONS PRESENTED

I. Whether the Albers Supreme Court erred in denying Blacksmotion to dismiss the indictment because the Albers statute

violates Blacks First Amendment right to free exercise of

a bona fide religion, and fails to provide a religiousexemption along with its secular exemptions, thereby

triggering strict scrutiny.

II. Whether the Albers Supreme Court erred in holding that theexclusionary rule did not apply to Officer Lopezs

violation of Blacks Fourth Amendment rights when he

forcibly entered Blacks apartment based on Officer

Schroeders erroneous determination of probable cause.


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ii

TABLE OF CONTENTS

Questions Presented.............................................i

Table of Contents..............................................ii

Table of Authorities...........................................iv

Proceedings Below...............................................1

Constitutional Provisions.......................................3

Statutory Provisions............................................3

Statement of Facts..............................................3

Summary of the Argument.........................................6

Argument........................................................8

I. THE ALBERS SUPREME COURT ERRED IN DENYING BLACKS MOTION TO

DISMISS THE INDICTMENT BECAUSE THE ALBERS STATUTE VIOLATES

HIS FIRST AMENDMENT RIGHT TO FREE EXERCISE OF A BONA FIDE

RELIGION AND FAILS TO PROVIDE A RELIGIOUS EXEMPTION,

THEREBY TRIGGERING STRICT SCRUTINY.........................8

A. The Albers statute violates Blacks First Amendment

Free Exercise rights by burdening a practice that

extends from a sincerely held belief in a bona fidereligion..............................................9

1. The Church of Body Modification occupies a place

in Blacks life comparable to a traditional

religion........................................10

2. Beliefs do not need to be traditional or popular

to constitute a protected religion............11

3. Although Black urges this Court not to apply the

lower circuits tests too rigorously, Blacksbeliefs clearly satisfy the useful indicia

provided........................................13

4. The Legislature was not targeting Blacks use of

the dagger with Albers Rev. Stat. 12-1298.....15


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iii

B. Pursuant to Smith, this Court should apply strict

scrutiny to Albers Rev. Stat. 12-1298 because the

statute may not provide categorical secular exemptions

without religious exemptions.........................16

1. The Sherbert exception applies beyond

unemployment benefits cases.....................17

2. The Third Circuit test, adopted by the Albers

Supreme Court, is the correct test for statutes

granting categorical secular exceptions.........18

3. The Tenth Circuit and Respondent misrepresent the

Sherbert exceptions reach, and this Court should

not adopt this approach.........................19

C. Albers Rev. Stat. 12-1298 fails under strict

scrutiny because the statute is not narrowly tailored

to achieve its purpose...............................21

II. THE ALBERS SUPEREME COURT ERRED IN DENYING BLACKS MOTION

TO SUPPRESS BECAUSE THE EXCLUSIONARY RULE APPLIES TO

OFFICER LOPEZS CONDUCT...................................22

A. This Court should not create a per se good faith

exception for negligent police misconduct............23

1. Herring did not create a per se good faith

exception for negligent police misconduct.......23

2. A per se good faith exception for negligent

police misconduct would run counter to the

rationale for the exclusionary rule.............25

B. Even if Herring did create a per se good faith

exception for police misconduct, it would not apply to

warrantless searches and seizures....................26

1. As a matter of law, the good faith exception does

not apply to police determinations of probablecause...........................................26

2. As a matter of policy, the good faith exception

should not protect police determinations of

probable cause..................................29


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iv

C. Even if this Court interprets Herring to expand the

good faith exception to apply to all negligent police

misconduct, Officer Lopezs reliance was not

attenuated from Officer Schroeders mistake..........32

Conclusion.....................................................36

Appendix A.....................................................37

TABLE OF AUTHORITIES

United States Supreme Court Cases

Arizona v. Evans, 514, U.S. 1 (1995)...........................22

Arizona v. Gant, 129 S. Ct. 1710 (2009)....................30, 31

Bowen v. Roy, 476 U.S. 693 (1986)..............................17

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520 (1993)................................................17

Employment Div., Dept of Human Res. v. Smith, 494 U.S. 872

(1990)..............................................9, 16, 17, 20

Herring v. United States, 129 S. Ct. 695 (2009)....22, 23, 26, 32

Katz v. United States, 389 U.S. 347 (1967).....................30

Locke v. Davey, 540 U.S. 712 (2004)............................20

Mapp v. Ohio, 367 U.S. 643 (1961)..............................22

Sherbert v. Verner, 374 U.S. 398 (1963)........................17

Thomas v. Collins, 323 U.S. 516 (1945).........................21

Thomas v. Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707

(1981).........................................................12

United States v. Janis, 428 U.S. 433 (1976)....................26

United States v. Leon, 468 U.S. 897 (1984).................23, 31


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United States v. Seeger, 380 U.S. 163 (1965)...................10

Welsh v. United States, 398 U.S. 333 (1970)....................10

Other Federal Cases

Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir. 1981).......12, 13

Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).....17, 19

Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986)................12

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

170 F.3d 359 (3d Cir. 1999)................................18, 19

Grace United Methodist Church v. City of Cheyenne, 427 F.3d 775

(10th Cir. 2005)...............................................17

Milligan v. United States, 644 F. Supp. 2d 1020 (M.D. Tenn.

2009)..........................................................24

Theriault v. Carlson, 495 F.2d 390 (5th Cir. 1974).............12

Trefelner ex rel. Trefelner v. Burrell School Dist., 655 F.

Supp. 2d 581 (W.D. Pa. 2009)...................................20

United States v. Burke, 605 F. Supp. 2d 688 (D. Md. 2009)..32, 33

United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009).......29

United States v. Groves, 559 F.3d 637 (7th Cir. 2009)..........35

United States v. Jenkins, 396 F.3d 751 (6th Cir. 2005).........27

United States v. McCane, 573 F.3d 1037 (10th Cir. 2009)........28

United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996).....14, 15

United States v. Parson, 599 F. Supp. 2d 592 (W.D. Pa. 2009)...32

United States v. Peoples, No. 1:09-CR-170, 2009 WL 3586564, at

(W.D. Mich. Oct. 29, 2009).....................25, 28, 29, 30, 31

United States v. Prandy-Binett, 995 F.2d 1069 (D.C. Cir. 1993) .


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vi

...............................................................27

State Cases

People v. Arnold, 394 Ill. App. 3d 63 (Ill. App. 2 Dist. 2009)...

...............................................................24

People v. Robinson, 2010 WL 252110 (Cal. Jan. 25, 2010)........32

Smith v. Com., 683 S.E.2d 316 (Va. Ct. App. 2009)......24, 28, 34

Secondary Sources

George Dery, Good Enough for Government Work: The Courts

Dangerous Decision, in Herring v. United States, to Limit the

Exclusionary Rule to Only the Most Culpable Police Behavior, 20

Geo. Mason U. Civ. Rts. L. J. 1 (2009).....................23, 25

Matthew Alan Josephson, To Exclude or Not to Exclude: The Future

of the Exclusionary Rule after Herring v. United States. 43

Creighton L. Rev. 175, 193 (2009)..............................32

Statutory Provisions

Albers Rev. Stat. 12-1298(1)..................................9


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PROCEEDINGS BELOW

On March 11, 2009, a grand jury indicted Walter Black

(Black) for one count of illegal weapons possession in

violation of Albers Rev. Stat. 12-1298(1). [R. 6]. The

statute outlaws the possession of certain blades and outlaws the

possession of any blade for the purpose of harming another. See

id. On May 4, 2009, Black filed two pre-trial motions. Id. at

8. In his first motion, Black moved to dismiss the indictment,

arguing that Albers Rev. Stat. 12-1298(1) violated his First

Amendment right to free exercise of religion. Id. In the

second motion, Black moved to suppress the dagger Officer Lopez

seized during his warrantless search of Blacks apartment,

arguing that Lopez obtained the dagger in violation of Blacks

Fourth Amendment right against unreasonable searches and

seizures. See id.

On June 10, 2009, Superior Court Judge Schwartz conducted

hearings on Blacks pre-trial motions. Id. at 9. In support of

Blacks free exercise claim, he argued that the dagger was a

necessary and sacred element of his Church practices. Id.

Petitioner submitted a lengthy affidavit detailing his beliefs.

Id. Judge Schwartz denied Blacks motion to dismiss the

indictment, holding that his beliefs, although sincerely held,

did not rise to the level of religion which the First

Amendment entitles to protection. See id. Further, Judge


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Schwartz held that even if the Church was a religion for First

Amendment purposes, Albers Rev. Stat. 12-1298(1) is a neutral

law of general applicability, and does not violate Blacks First

Amendment rights. See id. at 9-10.

Judge Schwartz also denied Blacks motion to suppress the

dagger. Id. at 10. The judge held that Officer Schroeders

mistake was merely negligent and that Officer Lopez reasonably

relied on Officer Schroeders probable cause assessment. Id.

Thus, the officers entered the apartment in good faith and the

exclusionary rule did not apply. See id.

On September 24, 2009, a jury convicted Black of one count

of possession of an illegal weapon in violation of Albers Rev.

Stat. 12-1298(1) (2008). Id. at 1. During sentencing, the

court received evidence of Blacks prior convictions and applied

the sentence enhancement provision under Albers Rev. Stat. 12-

1298)(1)(b). Id. at 10. Black was sentenced to three years in

state prison. Black then appealed to the Albers Supreme Court.

Id.

The Albers Supreme Court concluded that the Superior Court

properly denied both Blacks motion to dismiss the indictment

and his motion to suppress the evidence, and affirmed his

conviction. Id. at 1. Black filed a writ of certiorari to the

Supreme Court of the United States, which was granted on January

25, 2010.


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CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. I

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof . . . .

U.S. Const. amend. IV

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.

STATUTORY PROVISIONS INVOLVED

Albers. Rev. Stat. 12-1298(1)

See Appendix A.

STATEMENT OF THE FACTS

Petitioner Walter Black is a resident of Country Club

Towers in Albers City, Albers. [R. 2]. He is an active member

of the Church of Body Modification (the Church). Id. See

Church of Body Modification Website, http://uscobm.com/ (last

visited Feb. 9, 2010). Members of this faith practice by

modifying and manipulating their body though such means as

piercings and tattoos. Id. Black is an Initiate Minister of

the Church and believes that body modification rituals are the

central calling of [his] faith. [R. 9]. Although he has

belonged to the faith since 2005, he has been a Minister since

2008. Id. As part of his Ministry, Black leads monthly

meetings for the local chapter of the Church. Id.


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Officers Hank Schroeder and Steven Lopez are thirteen-year

veterans of the Bernadillo County Police Department (BCPD).

Id. at 2. BCPD has jurisdiction over Albers City. Id. They

have been partners for nearly eight years. Id. Officer

Schroeder served as a soldier in the Army Reserve from 2006 to

2008 in Iraq. Id. While in Iraq, a roadside bomb exploded

within feet of Officer Schroeder. Id. at 3. This caused a

severe rupture of his right eardrum. Id. As a result, he

suffers mild permanent hearing loss. Id. Accordingly, Officer

Schroeder generally wears a corrective hearing aid. Id.

On February 13, 2009, Officers Lopez and Schroeder

responded to a 911 call in Country Club Towers. Id. After

responding to the emergency, Officer Lopez returned to the

officers squad car, while Officer Schroeder completed an

incident report. Id. On his way out of the building, Officer

Schroeder heard a female scream coming from Blacks apartment.

Id. Officer Schroeder approached the door to Blacks apartment

and heard what he believed to be yelling and the sound of glass

breaking. Id. at 4. In fact, Black was watching the horror

film Hacksaw IV and Officer Schroeders interpretation of the

noises coming from Blacks apartment was erroneous. Id. at 6.

Believing that the noises coming from Blacks apartment

were real, Officer Schroeder demanded that Black allow him to

enter. Id. at 4. Black discontinued the movie, but refused to


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allow Officer Schroder to enter. Id. Officer Schroeder called

Officer Lopez for backup and called police headquarters to ask

if he could make a warrantless entry into Blacks apartment.

Id. The officer at headquarters explained to Officer Schroeder

that he could enter the apartment only if he had probable cause

to believe that an occupant was presently in physical danger.

Id. After Officer Lopez arrived at Blacks apartment, Officer

Schroeder explained to him that he believed he had probable

cause to enter. Id. While Officer Schroeder monitored the

apartments rear exit, Officer Lopez kicked down the apartments

front door, finding Black sitting on his living room couch. Id.

at 5.

After handcuffing Black, Officer Lopez conducted a

protective sweep of the apartment. Id. In the course of doing

so, he noticed a fifteen-inch long dagger mounted on Blacks

living room wall. Id. Officer Lopez identified the dagger as

an illegal weapon under Albers Rev. Stat. 12-1298(1). Id.

This statute was enacted in 1962. Id. at 6. It was, however,

amended twice; once in 1996 to allow a museum in Albers City to

display blade weapons from the gold rush era, and again in 2002

to permit martial arts schools to possess blades for practice,

demonstration and instruction. Id. The legislative history

indicates that the Albers Legislature enacted the statute in


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order to protect public safety. Id. After seeing the dagger,

Officer Lopez then arrested Black for possession of the it. Id.

BCPD conducted an official review into the conduct of

Officers Schroeder in Lopez. Id. at 7. The report concluded

that the officers did not have probable cause to enter Blacks

apartment. Id. During the investigation, Officer Schroeder

conceded that had he been wearing his hearing aid, he would have

recognized the sounds as coming from a movie. Id. Bernadillo

County Sherriff Justin Pinkman concluded that Officer

Schroeders mistake was negligent, but that Officer Lopez relied

reasonably on Officer Schroeders determination of probable

cause. Id. at 8.

SUMMARY OF THE ARGUMENT

This Court should REVERSE the Albers Supreme Courts denial

of Blacks motion to dismiss the indictment and motion to

suppress the evidence. Blacks motion to dismiss the indictment

was denied improperly because Black practices a bona fide

religion entitled to First Amendment protection. The Church,

occupies a place in Blacks life comparable to a traditional

religion despite its unique characteristics. Further, Blacks

beliefs satisfy the lower circuits factors to constitute a

religionand do not offend the Albers legislatures intent.

Additionally, the Albers Supreme Court properly recognized

that Smith created an exception for statutes that provide


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secular exemptions without religious exemptions. The Albers

Supreme Court properly adopted the Third Circuits per se

approach because such an exemption suggests the government

values secular motivations more than religious motivations. The

Albers legislature excluded museums and martial arts schools

from the statutes reach, and should extend the exception to

Blacks religion. This failure to apply the Sherbert exception

in Smith, triggers strict scrutiny, and Albers Rev. Stat. 12-

1298(1) fails because its means are not narrowly tailored to its

purpose.

Also, this Court should REVERSE the Albers Supreme Courts

denial of Blacks motion to suppress the evidence. First, Black

urges the Court to reject Respondents argument that this Court

created a per se exception to the exclusionary rule for

negligent police misconduct when it decided Herring v. United

States. This Courts decision in Herring was confined to

negligent record-keeping errors that did not result from

systemic or recurring negligence. Furthermore, expanding the

good faith exception to encompass all negligent misconduct would

run counter to the deterrence rationale of the exclusionary

rule, because the rule is able to deter negligent conduct.

Second, even if Herring applies to all negligent police

errors, it would not apply to warrantless searches. In deciding

Herring, this Courts decision referred specifically to


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negligent reliance on search warrants. Probable cause

determinations, on the other hand, are inherently ad hoc and

dependent on the facts and circumstances of a particular case.

Accordingly, courts must apply a high level of scrutiny to these

determinations. Thus, expanding the good faith exception to

encompass negligent probable cause determinations would grant

police the power to conduct warrantless searches with impunity

while hiding behind claims of good faith.

Third, Officer Schroeders negligent mistake was not

attenuated from Blacks arrest. In deciding Herring, this court

excepted attenuated negligence. There is a direct causal link

between Officer Schroeders negligently erroneous determination

of probable cause and the discovery of Blacks sacred dagger in

his apartment. This discovery, in turn, resulted in Blacks

arrest. Because Officer Schroeders negligence was not

attenuated from the arrest, the good faith exception does not

apply. Accordingly, this Court should REVERSE the Albers

Supreme Courts denial of Blacks motion to dismiss the

indictment and motion to suppress the evidence that Officers

Lopez and Schroeder discovered in Blacks apartment.

ARGUMENT

I. THE ALBERS SUPREME COURT ERRED IN DENYING BLACKS MOTION TODISMISS THE INDICTMENT BECAUSE THE ALBERS STATUTE VIOLATES

HIS FIRST AMENDMENT RIGHT TO FREE EXERCISE OF A BONA FIDE

RELIGION AND FAILS TO PROVIDE A RELIGIOUS EXEMPTION UNDER

SMITH, THEREBY TRIGGERING STRICT SCRUTINY.


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Standard of Review

Black urges this Court to reverse the Albers Supreme

Courts denial of his motion to dismiss the indictment under

Albers Rev. Stat. 12-1298(1). The Court reviews questions of

law de novo. See Employment Div., Dept of Human Res. v. Smith,

494 U.S. 872 (1990).

The Albers statute violates Blacks First Amendment right

to free exercise of religion because the Church of Body

Modification is a bona fide religion entitled to protection.

Further, the Albers statute, applying the Sherbert exception in

Smith, cannot grant categorical secular exceptions without

providing a religious exemption. Such a failure triggers strict

scrutiny. Albers Rev. Stat. 12-1298(1) is not narrowly

tailored to its purpose and fails strict scrutiny. Therefore,

Blacks possession of the dagger is protected under the First

Amendment.

A. The Albers statute violates Blacks First AmendmentFree Exercise rights by burdening a practice that

extends from a sincerely held belief in a bona fide

religion.

The Albers statute violates Blacks First Amendment Free

Exercise rights by burdening his practice for the Church of Body

Modification. Albers Rev. Stat. 12-1298(1) prohibits

possession of any instrument designed to cut or stab a person,

such as, but not limited to those instruments commonly known as


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. . . daggers. See [R. 10-11]. Daggers are sacred and

necessary elements of the Church. See id. at 9. Respondent

does not contest the obvious sincerity of Blacks beliefs in the

Church. Nevertheless, the Albers Supreme Court incorrectly

found that the Church did not constitute a bona fide religion.

The Church is a bona fide religion for First Amendment purposes

and entitled to an exemption because: 1) Blacks religion

occupies a place in his life comparable to a traditional

religion; 2) even unpopular religions warrant protection; 3)

Blacks religion satisfies useful indicia from the Third and

Tenth Circuits; and 4) the statutes purpose is not furthered by

Blacks indictment.

1. The Church of Body Modification occupies a placein Blacks life comparable to a traditional

religion.

The Church occupies a significant place in Blacks life,

comparable to a traditional religion. To warrant protection, a

belief must occupy the same place in the objectors life as an

orthodox belief in God holds. See United States v. Seeger, 380

U.S. 163, 176 (1965). Courts should grant great weight to the

objectors claim that his belief constitutes an essential part

of the faith. See id. at 184. The central consideration is

whether the registrants belief plays the role of religion in

the registrants life. See Welsh v. United States, 398 U.S.

333, 339 (1970) (quoting Seeger, 380 U.S. at 185 ([T]he task is


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acceptable, logical, consistent or comprehensible to others

for First Amendment protection to apply. See Thomas v. Review

Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981). The

courts are ill-equipped to assess the veracity of an article of

faith, and the Founders did not intend for [the courts] to be

declarants of religious orthodoxy. See Africa v. Pennsylvania,

662 F.2d 1025, 1030 (3d Cir. 1986). Courts should merely

distinguish legitimate religions from organizations which are

obviously shams . . . and whose members are patently devoid of

[religious] sincerity. See Theriault v. Carlson, 495 F.2d 390,

395 (5th Cir. 1974). The Albers Supreme Court erred in relying

on the fact that there is nothing traditional about this

religion, because that is an irrelevant consideration. See [R.

12]. Blacks beliefs are clearly not a sham, as demonstrated by

Blacks reaction to Officer Lopez touching the dagger. Blacks

religious beliefs need not be traditional or popular to receive

First Amendment protection.

Due to the complexity of religion, beliefs need not be

clearly defined or articulated by the follower to be legitimate.

See Thomas, 450 U.S. at 715. In addition, this Court has

recognized that differing beliefs and practices are not uncommon

among followers of the same religion. See Dettmer v. Landon,

799 F.2d 929, 932 (4th Cir. 1986) (citing Thomas, 450 U.S. at

715). Blacks beliefs are central to his life, comparable to a


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traditional religion, regardless of being labeled spiritual

instead of religious. Although Church followers may vary in

the extent of body modification, all followers believe body

modification serves as affirmation of their physical beings,

paramount to [their] self-identities. See Church of Body

Modification website, http://uscobm.com/ (last visited Feb. 8,

2010). Regardless of the Churchs unique belief system, it is

entitled to First Amendment protection.

3. Although Black urges this Court not to apply thelower circuits tests too rigorously, Blacks

beliefs clearly satisfy the useful indicia

provided.

Blacks beliefs easily satisfy the Third Circuits useful

indicia to determine a religions existence. To do so, a

religion must: (1) address fundamental and ultimate questions

having to do with deep and imponderable matters; (2) be

comprehensive, and consist of a belief-system as opposed to

an isolated teaching; and (3) often can be recognized by the

presence of certain formal and external signs. See Africa, 662

F.2d at 1032 (finding that the organization was more akin to

social philosophy because it lacked indicia, such as rituals,

ceremonies, or ethical commandments).

Blacks Church focuses on the meaning of human existence,

which is a deep and imponderable matter. The Church clearly

outlines its belief system on the Churchs website and
http://uscobm.com/http://uscobm.com/


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literature including a Statement of Faith and a Mission

Statement. Finally, the Church contains formal elements, such

as ministers, sacred tools, frequent rituals, and visible signs

of body modification. Unlike the organization in Africa,

Blacks religion has regular rituals, and finds body

modification essential to spirituality. See Church of Body

Modification website, http://uscobm.com/ (last visited Feb. 8,

2010). Therefore, this Court should find that the Church

satisfies the Third Circuits useful indicia test.

Even under the Tenth Circuits expanded list of criteria,

the Church qualifies as a bona fide religion. In determining

whether a belief system rises to the level of religion, the

Tenth Circuit considers whether it: (1) address[es] fundamental

questions about life, purpose, and death; (2) address[es] a

reality which transcends the physical world; (3) prescribe[s] a

way of life, that is moral or ethical; (4) provide[s] an

overreaching array of beliefs; or (5) contain[s] certain formal

and external signs of religion, including, but not limited to,

important writings, gathering places, rituals, ministers, and

guidelines for physical appearance. See United States v.

Meyers, 95 F.3d 1475, 1483-84 (10th Cir. 1996). Further, the

Tenth Circuit was reluctant to recognize beliefs with an ad hoc

quality used to justify a secular desire. See id. No one of

these factors is dispositive, but their minimal satisfaction


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suggests that the beliefs constitute a religion. See id. at

1484.

As previously discussed, the Church focuses on the purpose

of human existence, and seeks to unify the mind, body, and soul.

See Church of Body Modification website, http://uscobm.com/

(last visited Feb. 8, 2010). Further, the Church prescribes

body modification to accomplish these goals, clearly outlining

its beliefs on the Churchs website. The Church contains

several formal and external signs of religion, including monthly

rituals at the local Church chapter, Initiate Ministers, and

physical displays of body modification. In addition, the

Churchs regular rituals are far from ad hoc. The Churchs

literature states that followers of this faith use body

modification to fulfill their spiritual being, going beyond mere

secular desires. The Tenth Circuits considerations are more

than minimally satisfied and suggest that Blacks beliefs

constitute a bona fide religion.

4. The Legislature was not targeting Blacks use ofthe dagger with Albers Rev. Stat. 12-1298.

The Albers legislature did not intend to target Blacks

religious use of the dagger with the statute. The statute,

enacted in 1962, intended to protect public safety. See [R. 7].

However, it was amended twice to allow museums and martial arts

schools to possess blades for display, practice, demonstration,


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or instruction. See id. at 6. Black received the sacred dagger

when he became an Initiate Minister for the Church. Black

displayed it on his apartments wall, and only used the dagger

for monthly Church rituals. In addition, the amendments to

exclude museums and martial arts schools evince Alberss

intention to encourage cultural acceptance, which should extend

to religions. Given this, it seems unlikely that the Albers

legislature intended to target Blacks use with the statute.

For the foregoing reasons, this Court should find that

Black had sincerely held beliefs in a bona fide religion,

entitling him to First Amendment protection.

B. Consistent with Smith, this Court should apply strictscrutiny to Albers Rev. Stat. 12-1298 because the

statute may not provide categorical secular exemptions

without religious exemptions.

Consistent with Smith, this Court should subject Albers

Rev. Stat. 12-1298 to strict scrutiny. In Smith, 494 U.S. at

872, the Court dramatically changed its free exercise framework

by holding that neutral laws of general applicability do not

offend the First Amendment and do not trigger strict scrutiny.

However, the Court stated that where the State has in place a

system of individual exemptions, [the State] may not refuse to

extend that system to cases of religious hardship without

compelling reason. Id. at 884. The so-called Sherbert

exception triggers strict scrutiny even if the law is deemed


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neutral under Smith. See id.; see also Sherbert v. Verner,

374 U.S. 398 (1963). If the government refuses to extend an

exemption for religious reasons it suggests a discriminatory

intent which triggers strict scrutiny. See Bowen v. Roy, 476

U.S. 693, 708 (1986). Albers Rev. Stat. 12-1298 creates a

system of exemptions for museums and martial arts to use and

display daggers. Given these exemptions, this Court should

analyze the statute under strict scrutiny.

1. The Sherbert exception applies beyondunemployment benefits cases.

The Courts decision in Smith did not limit the Sherbert

exception to unemployment benefits cases or situations involving

a single departments case-by-case assessments. This Court has

never explained with specificity what constitutes a system of

individualized exceptions. See Axson-Flynn v. Johnson, 356

F.3d 1277, 1297 (10th Cir. 2004). The Tenth Circuit read the

Sherbert exception to only apply to individualized assessment of

unemployment benefits. See Grace United Methodist Church v.

City of Cheyenne, 427 F.3d 775, 784 (10th Cir. 2005). Even so,

this Court applied the exception outside of unemployment

compensation context; the Tenth Circuits interpretation is

therefore unpersuasive. See Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 537-38 (1993) (finding a

municipal ordinance regulating animal slaughter failed to


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provide a religious exemption, but provided secular exemptions).

Albers Rev. Stat. 12-1298 prohibits the possession of daggers

for the purpose of harming another, similar to the City of

Hialeahs prohibition of animal slaughters. This Courts

discussion in City of Hialeah demonstrates that the Sherbert

exception has a broader scope than unemployment benefits cases.

2. The Third Circuit test, adopted by the AlbersSupreme Court, is the correct test for statutes

granting categorical secular exceptions.

This Court should adopt the Third Circuits per se approach

and apply strict scrutiny for any statute that grants

categorical secular exemptions without religious exemptions.

The governments decision to provide secular, but not religious

exemptions devalues religion by deeming religious reasons to be

of lesser import than secular reasons. See id.; see also

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,

170 F.3d 359, 364-65 (3d Cir. 1999) (invalidating a police

departments no-beard policy because it contained medical

exemptions, but not religious exemptions). In Smith and City of

Hialeah, the Court was concerned with precisely this problem.

See id. at 365 (citing City of Hialeah, 508 U.S. at 542 (All

laws are selective to some extent, but categories of selection

are of paramount concern when a law has the incidental effect of

burdening religious practice.) (emphasis added)). The Courts

concern is only further implicated when the government . . .


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actually creates a categorical exemption for individuals with a

secular objection but not for individuals with a religious

exemption. See Fraternal Order, 170 F.3d at 365 (emphasis

added).

Here, the Albers statute creates secular exceptions for

museums and martial arts schools, but maintains no religious

exemption. The categorical secular exemptions suggest that

Blacks religious use of daggers is of lesser import than

museums and martial arts schools use of daggers. The Albers

statutes categorical exemptions have the incidental effect of

burdening Blacks religious practices. The Albers Supreme Court

recognized this, and concluded that Albers Rev. Stat. 12-1298

should trigger strict scrutiny. This Court should adopt the

Third Circuits approach, and apply strict scrutiny to Albers

Rev. Stat. 12-1298.

3. The Tenth Circuit and Respondent misrepresent theSherbert exceptions reach, and this Court should

not adopt this approach.

This Court should adopt the Third Circuit approach because

the Tenth Circuit and Respondent misrepresent the Sherbert

exceptions reach. The Tenth Circuit limited the Sherbert

exception to individualized exemptions, interpreting Smith to

only apply to routine case-by-case inquiries. See Axson-Flynn,

356 F.3d at 1297. The Tenth Circuit misunderstands Smiths main

goal in creating the Sherbert exception. The governments


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creation of categorical secular exemptions demonstrates the

government values secular motivations more than religious

motivations, defeating the Sherbert exceptions entire purpose.

See Trefelner ex rel. Trefelner v. Burrell School Dist., 655 F.

Supp. 2d 581, 594 (W.D. Pa. 2009). Smith merely requires the

governments assessment of the reasons for the relevant conduct,

but did not bar governments assessment of categorical

exemptions. See Smith, 494 U.S. at 884. Further, cases since

Smith that declined to apply the Sherbert exception did not

involve a civil or criminal prohibition, implicated the

Establishment Clause, or were facially and blatantly

unconstitutional under Smith. See Locke v. Davey, 540 U.S. 712,

720-21 (2004).

The Albers statute allows the government to assess the

museums and martial arts schools purposes in possessing a

dagger. The museum may display blade weapons from the gold rush

period. In addition, state-licensed martial arts schools may

possess blades only for the purpose of practice, demonstration,

or instruction. Even the categorical exemption involves a level

of individualized assessment. Further, Respondents claim that

post-Smith cases declined to apply the Sherbert exception is

particularly weak. This case differs greatly from Locke because

the Albers statute does not risk violating the Establishment

Clause and involves a statutory prohibition. Overall, the Tenth


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Circuit approach fails to address Smiths intent and risks

destroying the Sherbert exceptions purpose. Accordingly, this

Court should not adopt it.

For the foregoing reasons, this Court should find that

under the Sherbert exception to Smith, Albers Rev. Stat. 12-

1298 may not grant secular exemptions without providing

religious exemptions. This violation triggers strict scrutiny.

C. Albers Rev. Stat. 12-1298 fails under strictscrutiny because the statute is not narrowly tailored

to achieve its purpose.

Under strict scrutiny, Albers Rev. Stat. 12-1298 fails

because the statute is not narrowly tailored to achieve its

purpose. The government must have a compelling state interest

to substantially infringe a complainants First Amendment

rights. See Sherbert, 374 U.S. at 407. [I]n this highly

sensitive constitutional area, [o]nly the gravest abuses,

endangering a paramount interest, give occasion for [the

governments] permissible limitation. See id. (quoting Thomas

v. Collins, 323 U.S. 516, 530 (1945)).

Certainly, Blacks possession of the dagger does not

qualify as the gravest abuse the Albers statute sought to

prevent. Black believes the dagger is sacred and a tool in his

religion. Further, the Albers legislature sought to promote

public safety, but Black seeks to use the dagger solely for

Church rituals, and not against innocent citizens. For Blacks


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case, Albers Rev. Stat. 12-1298 must fail under strict

scrutiny.

For the foregoing reasons, this Court should REVERSE

Blacks conviction because Blacks beliefs qualify as a bona

fide religion, the Albers statute fails to provide the Sherbert

exception created in Smith, and the Albers statute fails under

strict scrutiny.

II. THE ALBERS SUPEREME COURT ERRED IN DENYING BLACKS MOTIONTO SUPPRESS BECAUSE THE EXCLUSIONARY RULE APPLIES TO

OFFICER LOPEZS CONDUCT.

Even if Albers Rev. Stat. 12-1298 does not violate the

Constitution, this Court should reverse the Albers Supreme

Court, suppress the evidence that Officer Lopez discovered in

Blacks apartment, and overturn Blacks conviction. Exclusion

serves as the primary remedy for Fourth Amendment violations.

Mapp v. Ohio, 367 U.S. 643, 655 (1961). This Court has,

however, recognized a good faith exception to the exclusionary

rule under certain limited circumstances. See Herring v. United

States, 129 S. Ct. 695, 702 (2009) (finding that an officers

reliance on a negligent police book-keeping error does not

automatically trigger the exclusionary rule); Arizona v. Evans,

514, U.S. 1, 4 (1995) (finding that the exclusionary rule does

not apply to an officers reasonable reliance on a court

employees clerical error); Illinois v. Krull, 480 U.S. 340, 353

(1987) (holding that an officers reasonable reliance on a


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23

statute later declared unconstitutional does not trigger the

exclusionary rule); United States v. Leon, 468 U.S. 897, 913

(1984) (holding that the exclusionary rule does not bar evidence

an officer obtains in reasonable reliance on a deficient

warrant). Officer Schroeders conduct not fit into any of the

good-faith exceptions of the exclusionary rule. Therefore, the

State cannot rely on evidence that the police discovered in

Blacks apartment.

A. This Court should not create a per se good faithexception for negligent police misconduct.

1. Herring did not create a per se good faithexception for negligent police misconduct.

This Courts decision in Herring did not expand the good

faith exception to encompass reliance on all negligent police

misconduct. Although certain commentators have suggested that

Herring applies outside the record-keeping context, this Courts

holding in Herring referred specifically to record-keeping

errors. See George Dery, Good Enough for Government Work: The

Courts Dangerous Decision, in Herring v. United States, to

Limit the Exclusionary Rule to Only the Most Culpable Police

Behavior, 20 Geo. Mason U. Civ. Rts. L. J. 1, 28 (2009); see

also Herring, 129 S. Ct. at 703 (We do not suggest that all

recordkeeping errors by the police are immune from the

exclusionary rule.). Moreover, this Court excluded systemic

and recurring negligence explicitly from the good faith


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exception to the exclusionary rule. Id. at 702. The phrase

systemic and recurring negligence suggests a normative failure

to use reasonable care such as the negligent maintenance of an

electronic database or a static departmental policy. An

officers negligent on-the-scene determinations of probable

cause, however, cannot constitute systemic negligence because

each on-the-scene determination turns on facts and circumstances

unique to a particular case. For this reason, Herring does not

apply to negligent acts outside of the record-keeping context.

Accordingly, Herring could not have created a per se good faith

exception for isolated cases of negligent police conduct.

Additional authority supports the proposition that Herring

did not effect a per se rule. The dissent in Herring confined

its discussion of the majority opinion principally to record-

keeping errors. Id. at 708-09 (Ginsburg, J., dissenting)

(arguing that courts should exclude negligent record-keeping

errors). Lower courts have also construed Herring narrowly.

See People v. Arnold, 394 Ill. App. 3d 63, 75 (Ill. App. 2 Dist.

2009) (providing extensive discussion on what kind of record-

keeping errors might give rise to exclusion); Smith v. Com., 683

S.E.2d 316, 326-27 (Va. Ct. App. 2009) (arguing that Herring

applies only to good faith reliance on subsequently invalidated

warrant); Milligan v. United States, 644 F. Supp. 2d 1020, 1045

n.19 (M.D. Tenn. 2009) (asserting that Herring applies only to


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clerical errors). Neither Officer Schroeders error nor Officer

Lopezs reliance related to record-keeping. Therefore,

Herrings good faith exception does not extend to the officers

conduct.

2. A per se good faith exception for negligentpolice misconduct would run counter to the

rationale for the exclusionary rule.

As a matter of policy, a good faith exception for all

negligent police misconduct would effectively eliminate the

exclusionary rule. In declining to adopt a per se rule, courts

have recognized that a broad per se exception for negligent

police conduct would encourage officers to act on warrants they

know to be deficient and then hide behind a claim of good faith.

United States v. Peoples, No. 1:09-CR-170, 2009 WL 3586564, at

*7 (W.D. Mich. Oct. 29, 2009); Dery, 20 Geo. Mason U. Civ. Rts.

L. J. at 3. A per se good faith exception for negligent police

misconduct would provide little incentive for officers to

conduct police business in good faith and consistent with the

protections that the Fourth Amendment affords. Hence, a per se

good faith exception for negligent police misconduct conflicts

with the purpose of the exclusionary clause.

A per se rule that renders admissible all fruits of

negligent police misconduct would also conflict with the

exclusionary rules central purpose. The exclusionary rule

serves primarily as a deterrent against police misconduct.


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United States v. Janis, 428 U.S. 433, 454 (1976). Moreover, the

notion that the exclusionary rule cannot deter negligent

behavior runs counter to a foundational premise of tort law

that liability for negligence . . . creates an incentive to act

with greater care. Herring, 129 S. Ct. at 708 (Ginsburg, J.,

dissenting). In the instant case, there is value to deterring

Officer Schroeders negligent failure to wear his hearing aid.

In the future, officers would know that they must take care to

wear all sensory aids while on duty. Applying the exclusionary

rule to negligent police misconduct would result in appreciable

deterrence.

B. Even if Herring did create a per se good faithexception for police misconduct, it would not apply to

warrantless searches and seizures.

1. As a matter of law, the good faith exception doesnot apply to police determinations of probable

cause.

Even if this Court found that Herring created a good faith

exception for all negligent police misconduct, it would not

apply to the instant case. The facts of Herring suggest that

the good faith exception applies only when officers rely

negligently on a belief that a magistrate has issued a valid

search warrant. See Herring, 129 S. Ct. at 703 (noting the

difficulties in maintaining an updated warrant database).

Neither a search warrant nor an arrest warrant had issued prior

to Officer Schroeders and Officer Lopezs violations of Blacks


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Fourth Amendment rights. Thus, Herring does not apply to the

instant case.

For the good faith exception to extend to probable cause

determinations, this Court would be condoning negligent police

interpretations of judicial precedent. Because the

determination of probable cause is a fact-intensive inquiry,

police must rely on the facts of previous cases in order to

determine whether they have probable cause to make a warrantless

search or arrest. See United States v. Prandy-Binett, 995 F.2d

1069, 1071 (D.C. Cir. 1993) (affirming that police make findings

of probable cause based on all of the surrounding facts and

circumstances). In order for this Court to expand the good

faith exception to apply to probable cause determinations, it

would need to condone officers interpretation of judicial

precedent, such that they could apply such precedent to the

facts and circumstances of an individual case.

The good faith exception does not extend to Officer

Schroeders negligent and erroneous determination of probable

cause. Prior to Herring, no case relying on the Leon line of

reasoning ever excepted the exclusionary rule from a case in

which police determined that they had probable cause without a

valid warrant. See United States v. Jenkins, 396 F.3d 751, 761

(6th Cir. 2005) (finding a police search unlawful where police

had probable cause but a warrant had not yet issued).


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Furthermore, lower courts have not interpreted Herring to

encompass police determinations of probable cause. Peoples,

2009 WL 3586564 at *7 (holding that the admission of evidence

police obtain through a negligent finding of probable cause

would undermine a magistrates ability to review evidence);

Smith, 683 S.E.2d at 327 (finding that exclusionary rule applied

to officers erroneous determination of what constitutes

reasonable suspicion or probable cause). In violating Blacks

Fourth Amendment rights, Officer Lopez relied not on an invalid

search warrant but rather on Officer Schroeders negligent

determination of probable cause. The good faith exception does

not apply when officers determine that probable cause exists

based on their interpretation of prior judicial decisions.

Therefore, no good faith exception to the exclusionary rule

applies in the instant case.

Even if the good faith exception extended to situations in

which police negligently rely on judicial precedent, such

reliance would not extend to probable cause determinations.

Some courts have declined to apply the exclusionary rule in

situations where police negligently rely on judge-made laws that

this Court overturned. United States v. McCane, 573 F.3d 1037,

1045 (10th Cir. 2009) (declining to apply the exclusionary rule

based on previously recognized precedent that this Court

overturned)). Nevertheless, the Courts of Appeals have not


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applied this view uniformly. See, e.g., United States v.

Gonzalez, 578 F.3d 1130, 1132 (9th Cir. 2009) (applying the

exclusionary rule and noting that the Supreme Court . . . has

[never] applied the good faith exception to . . . a search . . .

rendered unconstitutional by a subsequent Supreme Court

ruling). The McCane court applied the good faith exception to

a search incident to arrest, which is an exception to the

probable cause requirement. By contrast, Officer Schroeder

mistakenly found probable cause to enter Blacks apartment.

Thus, no court has extended the good faith extension to apply to

Officer Schroeders negligent misconduct.

2. As a matter of policy, the good faith exceptionshould not protect police determinations of

probable cause.

The policies underlying the exclusionary rule do not

support extending the good faith exception to negligent probable

cause determinations. Allowing police to rely on negligent

determinations of probable cause made in good faith would

effectively obliterate the exclusionary rule. Peoples, 2009 WL

3586564 at *7-8. This exception would empower police to conduct

an unlawful search so long as they can identify a reasonably

analogous unlawful search case. See id. Furthermore, reviewing

courts would not be able to discern whether an officer acted in

good faith because they would need to accept the officers

version of the facts as true. Id. at *8. Black concedes that


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Officer Schroeder did not intentionally fail to wear his hearing

aid and Officer Schroeder actually believed that he had probable

cause to enter Blacks apartment. Nevertheless, expanding the

good faith exception would encourage officers to claim good

faith reliance on judicial precedent when they know in fact that

they have no probable cause. Therefore, expanding the good

faith exception to apply to negligent police misconduct would

run counter to the exclusionary rules primary policy rationale:

deterring police misconduct.

Expanding the good faith exception to apply to negligent

police misconduct would also violate one of the principles

underlying the Fourth Amendment. The Fourth Amendments warrant

requirement ensures that both the executive branch and the

judiciary branch authorize a search. Peoples, 2009 WL 3586564

at *5. See also Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009)

(citing Katz v. United States, 389 U.S. 347, 357 (1967)). By

allowing police to rely on negligently erroneous determinations

of probable cause, this Court would be granting police more

power and an ability to circumvent the judiciary branch.

Expansion of the good faith exception would therefore run

counter to recognized Fourth Amendment principles.

By granting police more power to determine the existence of

probable cause, expanding the good faith exception would also

put police in a position for which they are ill-equipped.


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Interpreting and applying the Fourth Amendment is a challenging

task even for [judges and magistrates] charged with doing so

daily. Peoples, 2009 WL 3586564 at *6. By contrast, police

officers are poorly situated to make a probable cause

determination because they lack the detached scrutiny of a

neutral magistrate. Id. at *7 (quoting Leon, 468 U.S. at 913).

Officer Schroeders failure to make an accurate probable cause

determination is a paradigm case to showcase why the good faith

exception should not expand to cover negligent police

misconduct. Respondent concedes that there was no probable

cause and that Officer Schroeders negligence effected a Fourth

Amendment violation. Officer Schroeders mistake illustrates

how police officers can easily err in making probable cause

determinations. Because officers are poorly situated to make

probable cause determinations in the first place, this Court

should not expand the good faith exception to the exclusionary

rule.

Other recent decisions suggest that this grants only

limited deference to police reliance on case law. Even when

police reasonably rely on existing case law, this Court has

applied the exclusionary rule. Gant, 129 S. Ct. at 1723

(overturning case law upon which officers relied in making

search incident to arrest). If the exclusionary rule applies to


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reasonable interpretations of judicial precedent, a fortiori, it

should apply to negligent interpretations of judicial precedent.

C. Even if this Court interprets Herring to expand thegood faith exception to apply to all negligent police

misconduct, Officer Lopezs reliance was not

attenuated from Officer Schroeders mistake.

Even if Herring expanded the good faith exception to apply

to negligent police misconduct, the exception would not apply to

Officer Schroeders negligent mistake. The good faith exception

applies only to isolated negligence attenuatedfrom the

arrest. Herring, 129 S. Ct. at 702 (emphasis added).

Conversely, acts of negligence that are not attenuated from the

arrest will continue to implicate the exclusionary rule. United

States v. Burke, 605 F. Supp. 2d 688, 704 (D. Md. 2009); United

States v. Parson, 599 F. Supp. 2d 592, 609 (W.D. Pa. 2009)

(excluding evidence in part because Fourth Amendment violations

were not attenuated but directly resulted in obtaining the

evidence at issue). This Court has not clearly defined

attenuation in the context of the good faith exception,

however. Matthew Alan Josephson, To Exclude or Not to Exclude:

The Future of the Exclusionary Rule after Herring v. United

States. 43 Creighton L. Rev. 175, 193 (2009) (noting that

although this Court has not defined this limitation, it appears

to refer to the five month gap between the error and the

arrest). See also People v. Robinson, 2010 WL 252110 at *10


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(Cal. Jan. 25, 2010) (noting that this Courts holding in

Herring did not focus on attenuation). Regardless of the

exact meaning of the attenuation limitation, the actions of

Officers Schroeder and Lopez were not attenuated from Blacks

arrest.

Officer Schroeders negligence was not attenuated from

Blacks arrest. Many courts have interpreted the attenuation

limitation to mean that the good faith exception does not apply

if the officers negligence directly results in the suspects

arrest. Burke, 605 F. Supp. 2d at 704. Officer Schroeder

negligently believed that a woman was in grave danger inside

Blacks apartment. This directly resulted in Officer Lopez

breaking down Blacks door, which directly resulted in Officer

Lopez discovering Blacks dagger. Officer Lopezs discovery of

Blacks dagger was the reason that Officer Lopez arrested him.

Because there is a direct causal link between Officer

Schroeders negligent mistake and Blacks arrest, no attenuation

existed.

Officer Schroeders negligence is not attenuated from the

arrest even though there are a number of links in the causal

chain between the two events. An officers negligence may be

directly related to a suspects arrest regardless of the number

of links in the causal chain. See, e.g., Burke, 605 F. Supp. 2d

at 704 (finding no attenuation where negligent probable cause


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determination led to traffic stop, which led to suspect

consenting to fingerprint analysis, which in turn led to

incrimination in previous unsolved crime). Officer Schroeders

negligence did not instantaneously result in Blacks arrest.

Even so, Officer Schroeders negligence was not attenuated from

the arrest.

Officer Schroeders employment in the same police

department as the arresting officer further undermines a finding

of attenuation. In addressing the issue of attenuation, some

courts have distinguished Herring on the basis that an officer

outside the arresting officers jurisdiction committed the

negligent act. Smith, 683 S.E.2d at 328 ([T]he officers error

did not result from . . . faulty record-keeping in a different

jurisdiction. . . . Instead, it was caused by which occurred

within a single police department.). This case is entirely

unlike the facts of Herring, where faulty record-keeping in a

different jurisdiction resulted in the suspects arrest. By

contrast, not only are Officers Schroeder and Lopez in the same

police department, but they are also partners. The relationship

between Officers Schroeder and Lopez further support the notion

that Officer Schroeders negligence was not attenuated from the

arrest.

Even under alternate approaches to attenuation, this Court

should not find that Officer Schroeders negligence was


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attenuated from the arrest. Some courts have addressed

attenuation by analyzing the relationship between the negligent

misconduct and the deterrence rationale of the exclusionary rule

itself. United States v. Groves, 559 F.3d 637, 642 (7th Cir.

2009) (noting that applying the exclusionary rule in Herring

would produce no real deterrent effect). In contrast, Officer

Schroeders misconduct can be deterred. Applying the

exclusionary rule in the instant case will encourage police

officers to wear sensory aids in the future. Thus, Officer

Schroeders conduct was not attenuated from Blacks arrest even

under alternate modes of analysis. Accordingly, the

exclusionary rule should apply to Officer Schroeder and Lopezs

unlawful search of Blacks apartment and this Court should

suppress the evidence discovered therein.

For the foregoing reasons, this Court should suppress the

evidence that Officers Schroeder and Lopez discovered in Blacks

apartment and REVERSE his conviction.


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CONCLUSION

For the foregoing reasons, Petitioner respectfully requests

that this Honorable Court REVERSE the judgment of the Albers

Supreme Court and grant Petitioner all other relief that is just

and equitable.

Respectfully submitted,

Walter Black

By and through his attorneys

P1


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Appendix A

Albers Rev. Stat. 12-1298

Weapons other than firearms prohibited.

(1) Blades. No person shall possess or carry any instrument

designed to cut or stab a person, such as, but not limited to

those instruments commonly known as switchblades, daggers,

dirks, sword-in-canes, or stilettos. Pocketknives or Bowie

knives with a lockback mechanism may not exceed four (4)

inches in blade length, or eight (8) inches overall. Any blade

possessed or carried for the purposes of harming another

constitutes an illegal weapon.

(a) Any person violating the provisions of this subsection

shall be punished by a fine of not more than $1,500 or by

imprisonment for not more than one year, or both, and the

weapon so found shall be confiscated.

(b) Any person previously convicted of a felony found

violating the provisions of this subsection shall be

punished by a fine of not less than $1,500 nor more than

$3,000, or by imprisonment for not more than five years, or

both, and the weapon so found shall be confiscated.

(c) Any person violating the provisions of this subsection

while he or she is incarcerated within an adult

correctional institution shall be punished by a fine of notless than $1,500 or by imprisonment for not less than one

year nor more than five years, or both, and the weapon so

found shall be confiscated.

(d) An institution or organization, such a museum, in

possession of an otherwise prohibited weapon, for the

purposes of education or preservation of historical record,

and taking reasonable precautions to ensure the safety of

the weapon, does not thereby violate this statute.

(e) A state-licensed martial arts school may possess anotherwise prohibited weapon for use in the course of

martial arts practice, demonstration, or instruction, and

does not thereby violate this statute.

2010 best albers petitioner brief-1

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