Concealed Weapons and Traveling on Airplanes

           I recently represented an individual who, while going though security at Palm Beach International Airport, was stopped because he had a Smith & Wesson Tactical Pen in his carry-on luggage.  According to the police report, it was "a metal pen that is made for stabbing."  (I think Smith & Wesson might disagree with that characterization of their pen.)  As a result, my client was charged with committing the crime of carrying a concealed weapon.

          Out of curiosity, I went to the website for the Transportation Security Administration ("TSA") in order to find out what sharp objects are not permitted in carry-on luggage when boarding an airplane.  The following items are prohibited:

• Box cutters
• Ice axes
• Ice picks
• Knives (except for plastic or round-bladed butter knives)
• Meat cleavers
• Razor-type blades such as box cutters, utility knives, and safety razor blades.  (Disposable razors and their cartridges are permitted.)
• Sabers
• Scissors with pointed tips and metal blades longer than 4 inches
• Swords

           Interestingly enough, pens are not on this list of prohibited items.

          It is hard to see how a pen could be considered a deadly weapon when a steak knife was found not be be per se unlawful in the case of Nystrom v. State of Florida.  The relevant facts in Nystrom are as follows:

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EXTENDED BODY:

          "On June 11, 1999, Mr. Nystrom was sitting, heavily dressed, in his parked car in a residential neighborhood.   A citizen observed that he remained in the parked car over an extended period of time.   She found his appearance somewhat suspicious, and became concerned because a crime had been committed in the neighborhood a week earlier.   She called the police, and an officer approached Mr. Nystrom.   As a result of this encounter, the officer discovered a steak knife in Mr. Nystrom's front pocket.  Mr. Nystrom was charged, as a convicted felon, with carrying a concealed weapon.

          At trial, Mr. Nystrom explained that earlier on the day of his arrest, he was cooking a steak for dinner in the common kitchen of the boarding house where he lived.   When he finished, he placed his fork and knife in his pocket to free his hands to carry his plate and drink up to his room.   When he arrived at his room, he was confronted by his landlady who evicted him on the spot.   He quickly packed his belongings into garbage bags and placed them in his car.   When the officer confronted him, he was sitting in his car trying to decide where to go and what to do.

          The knife, which was admitted into evidence, is a steak knife.   Its pointed blade is four and three-quarters inches in length, and the entire knife is not longer than nine inches.   It has a slightly serrated edge and a plastic handle."

          Florida's Second District Court of Appeal reversed Mr. Nystrom's conviction and in doing so stated that "[w]e cannot hold that a steak knife is a 'deadly weapon' as a matter of law.  Although, as a matter of fact, a kitchen or steak knife can be used to inflict death, the carrying of one in a concealed manner is neither per se lawful nor per se unlawful.   Instead, the jury, as trier of fact, must determine whether the accused is guilty of the crime based upon the particular knife involved and the circumstances surrounding the accused's carrying of it."

          The relevant circumstance in my case was that my client was simply carrying a pen onto an airplane--nothing else.  When I pointed that fact out to the prosecutor, she did the right thing by immediately dropping the case.