STATE OF KANSAS v. CHRISTOPHER M. HARRIS

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,515

STATE OF KANSAS,

Appellee,

v.

CHRISTOPHER M. HARRIS,

Appellant.

SYLLABUS BY THE COURT

The residual clause "or any other dangerous or deadly cutting instrument of like

character" in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague because it fails to

provide an explicit and objective standard of enforcement.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 19,

2018. Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 17, 2020.

Judgment of the Court of Appeals affirming in part and reversing in part the district court is reversed.

Judgment of the district court is reversed, and the case is remanded with directions.

Kasper C. Schirer, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit

Vogelsberg and Clayton J. Perkins, of the same office, were on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,

and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

STEGALL, J.: In Kansas, it is a crime for a convicted felon to possess a knife. At

first blush, the statute appears straightforward. But the statute defines a knife as "a

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dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly

cutting instrument of like character." K.S.A. 2019 Supp. 21-6304. And figuring out when

an object is a "knife" because it is a "dangerous or deadly cutting instrument of like

character" is not as easy as one might suppose. See, e.g., Crocodile Dundee (Rimfire

Films 1986) ("That's not a knife . . . That's a knife."). Indeed, no one has argued the

statute makes it illegal for convicted felons to possess the utensil commonly used in

kitchens to butter bread or slice vegetables. But does it? After all, it is a cutting

instrument, is universally referred to as a knife, and it could conceivably be dangerous.

Today we are tasked with deciding whether the uncertainty in the residual phrase in

K.S.A. 2019 Supp. 21-6304 is so great that the law is impermissibly and

unconstitutionally vague. We conclude it is.

FACTUAL AND PROCEDURAL BACKGROUND

Christopher M. Harris is a convicted felon. When he and another man got into an

altercation on a Wichita street, Harris pulled out a pocketknife. A police cruiser was in

the area and the officer turned his spotlight onto the men. The officer observed Harris

dropping an object which turned out to be the pocketknife.

The State charged Harris with aggravated assault, criminal possession of a weapon

by a convicted felon, and criminal use of a weapon. At his jury trial, Harris testified he

felt in fear of his life and opened the knife only for protection. The pocketknife had a 3

and 1/2-inch blade with serrations. A jury convicted Harris of criminal possession of a

weapon and acquitted him of the other two charges.

Before trial, however, Harris had vigorously defended against the possession

charge by claiming first that the law was unconstitutionally vague and second that he was

entitled to a mistake of law defense. See K.S.A. 2019 Supp. 21-5207(b)(4) ("A person's

reasonable belief that such person's conduct does not constitute a crime is a defense if . . .

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such person acts in reliance upon an official interpretation of the statute, regulation or

order defining the crime made by a public officer or agency legally authorized to interpret

such statute.").

Harris first moved to dismiss the possession charge on constitutional grounds. He

argued the statutory definition of a knife was unconstitutionally vague both in general

and when applied to his case because it did not include a pocketknife as a prohibited

weapon. The district court denied the motion, ruling Harris lacked standing because the

knife at issue clearly fell within the residual clause of the statute prohibiting the

possession of "any other dangerous or deadly cutting instrument of like character." See

State v. Brown, 305 Kan. 674, 698, 387 P.3d 835 (2017) (noting a defendant lacks

standing to challenge a statute as unconstitutionally vague when the defendant's act

clearly falls within the statute).

Next, Harris sought approval to introduce evidence that the State of Kansas—

through Harris' parole officer Alexis Olave—had told him that the pocketknife was not a

prohibited knife. Harris proffered evidence that before the incident, Olave had advised

Harris that he could carry the precise knife at issue, and he relied on that advice. Harris

also provided a letter he had received from Olave after the incident in which she told him,

"[Y]ou are allowed to have a pocket knife less than 4 inches in length while on post

release. However, if the pocket knife is used in a threatening manner, then it can be

viewed as a violation or as a crime."

The State filed a motion in limine to exclude this evidence. Ultimately, the State

relied on the purely legal argument that parole officers are not legally authorized to

interpret any statutes and so anything Olave may have said was legally irrelevant to a

potential mistake of law defense under K.S.A. 2019 Supp. 21-5207(b)(4). Adopting the

State's position, the district court granted the motion and excluded Olave's statements

because they were not "an official interpretation of the statute."

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Harris moved to reconsider. Along with the evidence already proffered, he

submitted the Kansas Department of Corrections Division of Community and Field

Services Supervision Handbook. The handbook stated: "An ordinary pocket knife with a

blade no longer than 4 inches is not considered by law to be a dangerous knife, or a

dangerous or deadly weapon or instrument." At a hearing on his motion to reconsider,

Harris personally testified, "I went to [s]tate orientation just a couple of months before

this, the whole place told me, everybody at that place told me and they give me that

[handbook] stating and they told me I could own that knife." The district court ruled

again that Olave's advice—or implicitly, the advice of anyone at the Kansas Department

of Corrections (KDOC)—on what "counted" as a knife under the relevant statute was not

an official opinion upon which Harris could rely. The district court denied the motion to

reconsider. During trial, after the same evidence was proffered by Harris, the district

court sustained its pretrial order excluding all evidence in support of Harris' mistake of

law defense. Harris was then convicted of violating K.S.A. 2019 Supp. 21-6304.

On appeal, Harris claimed the district court erred by rejecting his vagueness

challenge to the statute and by excluding all evidence supporting his mistake of fact

defense. The Court of Appeals quickly dispatched with the constitutional challenge. The

panel held the language of the statute would be "easily understood by a person of

ordinary intelligence" because it employed "words commonly used." State v. Harris,

No. 116,515, 2018 WL 473605, at *4 (Kan. App. 2018) (unpublished opinion).

Moreover, "the statute lists several examples of objects that qualify as a knife" and a

"person of ordinary intelligence would understand that all of the specifically enumerated

items are objects that have a sharp blade or edge." 2018 WL 473605, at *4. The Court of

Appeals concluded that the gravamen of the statute was plainly and obviously "not the

length or width of an object" but "whether, like the listed items, the object is a dangerous

or deadly cutting instrument." 2018 WL 473605, at *4. Based on this statutory

interpretation, the panel held that Harris failed to show the language of the statute was

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"so vague that it fails to give warning to people of ordinary intelligence of the prohibited

conduct or that the statute is susceptible to arbitrary and discriminatory enforcement."

(Emphasis added.) 2018 WL 473605, at *4.

Next, the panel considered the district court's evidentiary ruling vis-à-vis Harris'

mistake of law defense. First, the lower court determined a parole officer is a public

officer under K.S.A. 2016 Supp. 21-5111(aa)(5) (public officer includes law enforcement

officer) and K.S.A. 2016 Supp. 21-5111(p)(2) (law enforcement officer includes any

KDOC officer and employee). Then, it found that the KDOC is an administrative agency.

2018 WL 473605, at *6.

Finally, to decide whether Olave and the KDOC could legally interpret the words

"weapon" and "knife" in the statute, the panel conducted a lengthy review of the relevant

law and ultimately concluded that "the Secretary of Corrections, through the Department

of Corrections, and Harris' parole officer, who is a public officer, were authorized to

interpret the statute. The Handbook and the information provided to Harris by his parole

officer constituted official interpretations of the statute." 2018 WL 473605, at *8. After

conducting a harmless error analysis, the panel found "there is at least a reasonable

probability that the outcome of the trial would have been different had the court allowed

Harris to introduce the parole officer's testimony and the Handbook to the jury." 2018

WL 473605, at *8. Thus, the lower court reversed his conviction and remanded Harris'

case for a new trial. 2018 WL 473605, at *7-8.

Each party petitioned this court for review of the portion of the Court of Appeals'

decision that went against them, and we granted both petitions.

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DISCUSSION

Because we resolve this case in Harris' favor on constitutional grounds, we need

not reach the evidentiary issue raised by the State's petition for review. At the outset, it is

also important to note that while the State raised numerous jurisdictional and preservation

claims in response to Harris' vagueness challenge in the proceedings below, the State did

not advance those claims in its petition for review. As a result, Harris' vagueness

challenge to K.S.A. 2019 Supp. 21-6304 is squarely before us on the merits.

Before discussing the merits, however, we pause to acknowledge that the parties

devote considerable space in their briefs to arguing about whether this is an as-applied or

facial challenge. The State insists it is an as-applied challenge because the district court

ruled on those grounds. Harris, meanwhile, points out that the traditional differences

between an as-applied and a facial challenge fade considerably in the context of an

overbroad law that invites arbitrary enforcement. See Johnson v. United States, 576 U.S.

591, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). In Johnson, the Court found the residual

clause "[any felony that] involves conduct that presents a serious potential risk of

physical injury to another" in the Armed Career Criminal Act unconstitutionally vague

despite that fact that "there is some conduct that clearly falls within the provision's

grasp." 135 S. Ct. at 2557, 2561. We need not delve too deeply into the standing

requirements for an as-applied challenge, however, because a thorough review of the

record both at the district court and on appeal demonstrates Harris has maintained a facial

challenge to the residual clause throughout and we resolve his challenge on that ground.

See Appellant's Cross-Petition for Review, 6 ("K.S.A. 21-6304 is unconstitutionally

vague, in general and as applied to Mr. Harris."); Appellant's Brief, 25 ("K.S.A. 21-6304

is vague in general and as applied to Mr. Harris"); Appellant's Reply Brief, 12 ("Mr.

Harris' appellate brief argued that the residual clause of K.S.A. 21-6304 [c][1] is vague

both in general and as applied to Mr. Harris' pocketknife."); Appellant's Reply Brief, 15

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("this Court should now find the law void for vagueness both as applied to Mr. Harris and

generally").

In doing so, we are engaged in questions of statutory interpretation and

constitutional law. We exercise plenary review over each. State v. Alvarez, 309 Kan. 203,

205, 432 P.3d 1015 (2019) ("We review issues of statutory interpretation de novo.);

Creecy v. Kansas Dep't of Revenue, 310 Kan. 454, 462, 447 P.3d 959 (2019) ("The

constitutionality of a statute is a matter of law subject to unlimited review.").

The Court of Appeals correctly recited the general standard governing Harris'

vagueness challenge. The challenged statute must clear two distinct—albeit relatively

low—hurdles. One hurdle is grounded in the due process requirements of the Fourteenth

Amendment. The other in the doctrine of separation of powers emanating from both our

federal and state constitutions. On the one hand, a "statute that 'either requires or forbids

the doing of an act in terms so vague that persons of common intelligence must

necessarily guess at its meaning and differ as to its application' violates the Fourteenth

Amendment to the United States Constitution and is thus void for vagueness." State v.

Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). On the other hand, the law must

"provide explicit standards for those who apply them" or it will amount to an

"impermissibl[e] delegat[ion]" of "basic policy matters" by the legislative branch to

"policemen, judges, and juries for resolution on an ad hoc and subjective basis." Grayned

v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); see

also State v. Ingham, 308 Kan. 1466, 1483, 430 P.3d 931 (2018) (Stegall, J., concurring)

("Vague laws give police officers, prosecutors, judges, and juries the authority to decide

what the law is on an ad hoc basis—all without the political accountability inherent in the

legislative process."). Finally, the need to prevent "arbitrary and discriminatory

enforcement is heightened for criminal statutes because criminal violations result in the

loss of personal liberty." Richardson, 289 Kan. at 125.

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Most litigation concerning vagueness in statutes has tended to focus on the due

process elements of the vagueness doctrine. Does the statute fairly put people on notice

as to the conduct proscribed? Are the words used common and understandable enough to

allow persons of ordinary intelligence to easily grasp their meaning? This hurdle is often

described as requiring no more than a "'commonsense determination of fundamental

fairness.'" 289 Kan. at 124. This should be no surprise given that this analysis springs

from the constitutional requirements of due process. And when the analysis is confined to

these questions, the rationale of the Court of Appeals panel—as well as the dissent—is

understandable. The statute bars possession of knives by convicted felons. A pocketknife

is a knife. People of ordinary intelligence are on notice as to what conduct the statute

restricts, and the demands of fundamental fairness are met.

But our focus today is on the second hurdle—the one intended to ensure that the

Legislature has not impermissibly delegated its authority to write the laws to officials or

actors in either the executive or judicial branches of government. We hold that the

residual clause of K.S.A. 2019 Supp. 21-6304 cannot clear this hurdle. The primary

problem with a law that fails to "provide explicit standards" for enforcement (as required

by the Court in Grayned) is that such laws "invite arbitrary power." Sessions v. Dimaya,

584 U.S. ___, 138 S. Ct. 1204, 1223, 200 L. Ed. 2d 549 (2018) (Gorsuch, J., concurring).

That is, these laws "threaten to transfer legislative power to" police, prosecutors, judges,

and juries, which leaves "them the job of shaping a vague statute's contours through their

enforcement decisions." 138 S. Ct. at 1228 (Gorsuch, J., concurring).

Because an impermissible delegation of legislative power will often lead to

arbitrary enforcement based on subjective or even prejudicial criteria, the United States

Supreme Court has indicated that the "more important" prong of the "vagueness doctrine

'is not actual notice, but the other principal element of the doctrine—the requirement that

a legislature establish minimal guidelines to govern law enforcement.' [Without these], a

criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors,

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and juries to pursue their personal predilections.' [Citations omitted.]" Kolender v.

Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); see also United

States v. Davis, 588 U.S. __, 139 S. Ct. 2319, 2325, 204 L. Ed. 2d 757 (2019) ("Vague

statutes threaten to hand responsibility for defining crimes to relatively unaccountable

police, prosecutors, and judges, eroding the people's ability to oversee the creation of the

laws they are expected to abide."); United States v. Reese, 92 U.S. 214, 221, 23 L. Ed.

563 (1875) ("It would certainly be dangerous if the legislature could set a net large

enough to catch all possible offenders, and leave it to the courts to step inside and say

who could be rightfully detained, and who should be set at large. This would, to some

extent, substitute the judicial for the legislative department of the government.").

It is the very overbreadth of such laws that renders them impermissibly vague. It is

not necessarily because they are ambiguous on their face—an overbroad law can be very

clear. The problem, in fact, may be amplified by clarity. If a law "makes everyone" a

violator, then "prosecutors and the police [will] both define the law on the street and

decide who has violated it." Stuntz, The Pathological Politics of Criminal Law, 100

Mich. L. Rev. 505, 511 (2001). This is a world in which "almost anyone can be arrested

for something." Nieves v. Bartlett, 587 U.S. ___, ___, 139 S. Ct. 1715, 1730, 204 L. Ed.

2d 1 (2019) (Gorsuch, J., concurring in part and dissenting in part).

It is appropriate to call such clear-but-overbroad laws "vague" because by failing

to provide adequate enforcement guidelines, the Legislature has left it up to other actors

to give the law teeth through their enforcement decisions and actions. As Justice Robert

Jackson once wrote, without clear legal standards to guide us, we human beings "usually

end up . . . condemning all that we personally disapprove and for no better reason than

that we disapprove it." Jordan v. De George, 341 U.S. 223, 242, 71 S. Ct. 703, 95 L. Ed.

886 (1951) (Jackson, J., dissenting). Within constitutional boundaries, legislators have

this liberty. This is by design. Prosecutors, judges, law enforcement officers, and juries—

that is, actors constrained by the law—do not have such freedom. This, too, is by design.

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Whether or not a person is arrested, charged, and convicted for violating a law must

depend more on objective and discernable legal rules than on the mere discretion,

guesswork, or whim of government officials. See Davis, 139 S. Ct. at 2325 ("Only the

people's elected representatives in the legislature are authorized to 'make an act a

crime.'").

In the past, we have considered whether a noise ordinance was unconstitutional

because it violated these separation of powers principles. In City of Lincoln Center v.

Farmway Co-Op, Inc., 298 Kan. 540, 546, 316 P.3d 707 (2013), we considered the City's

ordinance that criminalized the making of "'any excessive, unnecessary, unreasonable or

unusually loud noise which either annoys, disrupts, injures or endangers the comfort,

repose, health, peace or safety of others within the City.'" We held this language "fails the

second prong of the vagueness inquiry" because it failed to "'convey sufficient clarity to

those who apply the ordinance standards to protect against arbitrary and discriminatory

enforcement.'" 298 Kan. at 549 (quoting City of Wichita v. Hackett, 275 Kan. 848, 856,

69 P.3d 621 [2003]).

In reaching this conclusion, we considered the difficulty facing those charged with

enforcing this noise ordinance. How would they know for sure whether a noise was

excessive or unnecessary, or whether it annoyed or disrupted the comfort of others?

Because of the highly subjective nature of these judgments, we concluded enforcement

would be "varying and . . . unpredictable." 298 Kan. at 549. We ultimately described this

type of vagueness problem as "an impermissible delegation of basic policy matters" by

the legislative branch to actors in other branches of government for "'resolution on an ad

hoc and subjective basis.'" 298 Kan. at 549 (quoting Hackett, 275 Kan. at 854).

Today's case gives us a textbook example of the same kind of enforcement

guesswork that can result from a vague law. The statute makes it a crime for Harris to

possess a weapon. K.S.A. 2019 Supp. 21-6304. A weapon "means a firearm or . . . a

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dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly

cutting instrument of like character." K.S.A. 2019 Supp. 21-6304(c)(1), (2). It is

undisputed that Harris did not possess a firearm, a dagger, a dirk, a switchblade, a stiletto,

or a straight-edged razor. In these circumstances, enforcement officials must ask, what

exactly is a dangerous cutting instrument of like character? We are unable to discern a

sufficiently objective standard of enforcement in this language. Instead, we are left with

the subjective judgment of the enforcement agencies and actors. A pair of scissors?

Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision

be driven by an objective rule or a historically contingent fear of box cutters? See

Johnson, 135 S. Ct. at 2557 ("We are convinced that the indeterminacy of the wideranging inquiry required by the residual clause . . . invites arbitrary enforcement.").

The dissent chides us for reciting these hypothetical examples, though in doing so

it issues its own subjective interpretation of what really counts as a knife. The dissent

goes so far as to attempt to distinguish between the relative deadliness of the cutting

edges on a box cutter (prohibited) and a pair of scissors (not prohibited). Slip op. at 19.

But the statutory language at issue—"dangerous or deadly cutting instruments of like

character"—does not permit such fine distinctions.

Fortunately for our analysis, we are not limited to speculation about hypothetical

cutting objects, or even to the question of whether Harris' pocketknife is or isn't a

"dangerous or deadly cutting instrument[] of like character." That discussion—including

the photograph of the knife included in the dissent—is irrelevant to the crucial question

presented by this case. Namely, does K.S.A. 2019 Supp. 21-6304 invite "varying and . . .

unpredictable" enforcement decisions "on an ad hoc and subjective basis?" Farmway CoOp, Inc., 298 Kan. at 549.

And we do not have to speculate on the answer to this question. Here we have a

concrete example of government officials expressing and operating under diametrically

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opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action. The

State of Kansas, through its prosecutors, believes (and has acted on its belief) that K.S.A.

2019 Supp. 21-6304 is meant to be enforced against Harris and his pocketknife. But the

State of Kansas has also, through its Department of Corrections, published a handbook

and advised parolees (including Harris) that K.S.A. 2019 Supp. 21-6304 is not meant to

be enforced against Harris and his pocketknife. Even without any bad faith on the part of

the government—and the record here gives us no reason to suspect there is—the

circumstances present us with an unmistakable instance of arbitrary enforcement of an

inherently subjective standard.

In our considered judgment, this constitutional failure begins with a legislative

enactment that has impermissibly delegated legislative power to the executive and

judicial branches. Thus, we hold that the residual clause in K.S.A. 2019 Supp. 21-6304 is

unconstitutionally vague. Harris' conviction must be reversed and his motion to dismiss

granted.

The judgment of the Court of Appeals is reversed. Harris' conviction is reversed,

and this case is remanded to the district court with instructions to dismiss the charge of criminal possession of a weapon by a convicted felon.