What is an Air Gauge Knife? Punishment? Defenses?

While we appreciate that if anyone has Googled “Air Gauge Knife” (AGK) and clicked to a link to this article, he or she probably already knows what an air gauge knife is.  However, just in case one does not know what it is, an air gauge knife is a knife concealed inside an air gauge, the narrow blade of which usually retracts and extends by one pushes a button on the air gauge, similar to a box cutter or X-acto knife.

Having such a knife is illegal, as it can be concealed and deployed when one is close to the victim, just as it is illegal to have a cane knife, a cane sword, a belt-buckle knife, brass knuckles, etc. (see Penal Code § 16590 for a list of “generally prohibited weapons”).

Penal Code § 20310, however, separately addresses an air gauge knife, stating “any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any air gauge knife is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.”  It merits mention that one can be prosecuted for possession of an AGK under Penal Code § 16590 as well.

The knife may purchased at a novelty shop (i.e., in Tijuana or outside California) or given to one as a gift.  One could also buy one illegally, i.e., from a swap meet or online with the purpose of self-defense.

The crime is a ‘wobbler,” meaning it is punishable as a misdemeanor (by up to one year in county jail and / or a fine up to $1,000) or a felony, depending upon the facts of the case and defendant’s prior criminal history, with up to three years in state prison (to be served in county jail under AB 109 unless one is a registered sex offender) and a fine up to $1,000.  Probation is possible.

The defenses to this crime is that one is permitted to carry or have such a knife, i.e., because one is a police officer, or necessity for self-defense.  The necessity defense, however, is generally regarded with skepticism because the requirements for a valid necessity defense are extremely narrow and difficult to meet.

Judicial Council of California Criminal (CALCRIM) Jury Instruction 3410 sets forth the legal requirements that a juror would need to find for the necessity defense to apply.  It states: 

“In order to establish this defense, the defendant must prove that: 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); 2. (He/She) had no adequate legal alternative; 3. The defendant’s acts did not create a greater danger than the one avoided; 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would also have believed that the act was necessary under the circumstances; AND 6. 

The defendant did not substantially contribute to the emergency. 

The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt.  To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.

With necessity, the threatened harm is in the immediate future, thereby permitting a defendant to balance alternative courses of conduct. People v. Condley (1977) 69 Cal.App.3d 999, 1009–1013 [138 Cal. Rptr. 515].  Necessity does not negate any element of the crime, but rather represents a public policy decision not to punish a defendant despite proof of the crime. People v. Heath (1989) 207 Cal.App.3d 892, 901 [255 Cal. Rptr. 120].

The necessity defense, in other words, would probably not apply to someone who keeps an AGK in his car “just in case,” for self defense.  Rather, one must acquire the AGK in response to a threatened harm in the immediate future, not some indefinite time.