Sikhs, knives, and religious exemptions [UPDATE: note correction, labeled "3"]

|The Volokh Conspiracy |

Photographs of kirpans, taken from a Department of Homeland Security poster.
Photographs of kirpans, taken from a Department of Homeland Security poster.

Sikh24 (Jaspreet Kaur) reports:

Criminal charges against 17-year-old Virender Singh were dismissed by the Criminal Court of the City of New York, County of Queens about a week ago.

Virender, an initiated Sikh, was arrested and charged with two counts of Criminal Possession of a Weapon in the Fourth Degree, while wearing a kirpan, or religious sword, which is one of the five Sikh articles of faith. He was arrested in South Ozone Park, Queens while walking to the Gurdwara, or Sikh place of worship, to offer evening prayers as part of his daily routine….

[Virender's lawyers] filed a motion to dismiss this Case in the Furtherance of Justice. At a court hearing about a week ago, the prosecution conceded and the judge accepted the Motion to Dismiss.

I talked to Manmeet Singh, one of Virender Singh's lawyers, and he confirmed for me that the charges were dismissed; he also sent me a copy of the motion. (Very many Sikhs in the West use Singh as their last names; to my knowledge, there is no close family relationship between any of the Singhs mentioned in this case or the precedents.) A few thoughts:

1. In jurisdictions that have religious exemption regimes—whether under Religious Freedom Restoration Act (RFRA) statutes, or under state courts' interpretations of the state's religious freedom provision—devout Sikhs can indeed argue for exemptions from bans on carrying knives. The Fifth Circuit has allowed one such case, related to federal employment, to go forward under the federal RFRA (Tagore v. United States (5th Cir. 2013)), and the government has changed its rule as a result. To defeat such an exemption claim, the government would have to show that denying religious exemptions, and applying the ban on carrying knives to the religious objector, is the least restrictive means of serving a compelling government interest. Preventing violent crime would be a compelling government interest, but the question is whether granting the exemption would indeed materially undermine the interest.

One argument that often comes up in such cases is that many Sikhs wear short and blunt knives as their kirpans, taking the view that the kirpan is supposed to be a symbolic weapon, not a usable one; it's possible that exempting such knives—even if they technically violate the law or a government agency rule—wouldn't really undermine the interest in fighting crime. Compare Cheema v. Thompson (9th Cir. 1995), which largely accepted such an argument for an exemption, even in K-12 schools; that case, however, rested on applying the federal RFRA to states, something that the Supreme Court later rejected. Should the exemption nonetheless be denied, perhaps on the grounds that allowing blunt knives would either let people carry sharp knives claiming they're blunt, or require too much checking on the part of police, guards, and others? Also, what if someone takes the view that he has a religious obligation to wear a sharper or longer weapon, perhaps because the blunt knife is not a good enough symbol (since the kirpan is supposed to be a symbol of the duty to defend oneself and others from oppression)?

Of course, sometimes the statute weapon carrying statute might itself implicitly exclude kirpans; that's what the Ohio Court of Appeals held in State v. Singh (Ohio Ct. App. 1996):

[A] "deadly weapon" as that term is defined by [the Ohio] statute … is any instrument capable of inflicting death and either designed or specially adapted for use as a weapon or possessed, carried, or used as a weapon. The pointed kirpan was capable of inflicting death. That does not, however, mean that it is a deadly weapon. The statute requires not only that it be capable of inflicting death but also that one of the other two conditions be satisfied.

No evidence was presented supporting a conclusion that the kirpan was possessed, carried, or used by Singh as a weapon…. The kirpan was sheathed and sewn to the front of his undergarment.

The crucial issue then is whether the evidence was sufficient to establish beyond a reasonable doubt that the kirpan was designed or specially adapted for use as a weapon. We conclude it was not. All three of the state's witnesses professed ignorance of the Sikh faith. None had any knowledge of whether the kirpan was designed or adapted as a weapon. The only evidence on the design of the kirpan was adduced in Singh's case in defense by Dr. Spellman. Despite the state's attempt to give significance to the expert's mention of a letter from a seventeenth-century cleric stating that the kirpan could be used as a weapon in the last resort, Dr. Spellman testified that the kirpan was designed as a religious symbol to remind Sikhs of their obligations to do justice.

Based upon a review of the entire record, there is no evidence that Singh possessed or carried the kirpan as a weapon and no evidence that the kirpan was designed or adapted for use as a weapon. Therefore, no rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. The trial court's conviction was unsupported by the evidence.

Even in that case, though, one of the judges—Judge Painter, who eventually went on to service, of all places, on the United Nations Appeals Tribunal, which reviews the U.N.'s internal employment decisions—concurred, with a religious freedom argument:

I concur wholeheartedly with this opinion. I write separately to confess that I am amazed that a case like this would ever be prosecuted once, much less twice, at tremendous cost to the state, the defendant, and the legal system.

Free expression of religion has been a cornerstone of the inalienable rights of Americans even as the religiously persecuted separatist Puritan Pilgrims reached Plymouth Rock in 1620, as states such as Rhode Island were established solely as a haven for those persecuted for their religious beliefs, as religious freedom was established in Section 14, Article I of the Northwest Ordinance of 1787, all well before the Free Exercise Clause was formally set out in the First Amendment to the United States Constitution and Section 7, Article I of the Ohio Constitution.

The Sikh religion has been part of world history since the fourteenth century. An integral part of that religion is the symbolism embodied in the five k's worn by its members. To be a Sikh is to wear a kirpan—it is that simple. It is a religious symbol, and in no way a weapon. As long as the kirpan remains a symbol and is neither designed nor adapted for use as a weapon, laws such as R.C. 2923.12 are wholly inapplicable.

I cannot understand the purpose for this prosecution, which, if successful, would have had the effect of banishing the members of one religious sect from the state of Ohio for its mandatory wear. And to what end? That a veterinarian would be punished for having a dulled blade of two and one-half inches sewn inside his clothing as required by his religion.

2. New York courts have interpreted the New York Constitution as mandating some religious exemptions, though not under the so-called "strict scrutiny" test but instead under a more government-friendly balancing test. (See Catholic Charities v. Serio (N.Y. 2006).) And one can argue that there should be strict scrutiny even under the federal Free Exercise Clause; though Employment Division v. Smith (1990) has held that the Free Exercise Clause generally doesn't mandate religious exemptions from generally applicable laws, it can be read as allowing such strict scrutiny in cases involving hybrid rights claims, such as free exercise plus parental rights, or, in this instance, free exercise plus the Second Amendment. (I think that hybrid rights theory is unsound, and many lower courts have rejected it, but it is an argument that can be made.) One New York trial court case, People v. Singh (N.Y. Crim. Ct. 1987), rejected a Free Exercise Clause exemption argument (more on that case later), but it's just a trial court case, and thus not binding precedent.

The motion in the Virender Singh case, however, didn't focus on that. Instead, it pointed to several New York incidents, including the 1987 Singh case, in which charges for carrying a kirpan were ultimately dismissed. These cases aren't binding precedents, but apparently they reflect a practice among at least some New York courts, a practice that the judge in this case continued to follow. (Note that the motion did not argue that the kirpans that Virender Singh was wearing were short or blunt, though it did argue that the kirpans were "sealed in a sheath.")

New York law expressly provides, N.Y. Crim. Proc. Law § 170.40, that a judge may dismiss charges "in the interest of justice," "as a matter of judicial discretion," if the judge concludes that there is "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant … would constitute or result in injustice."

In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:

(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

It seems like at least some judges in New York are using this as a basis for an informal system of religious exemptions from prosecution for wearing kirpans—though a system that doesn't provide much assurance for individual Sikhs going forward, since there's no binding, officially stated rule requiring such exemptions.

3. [UPDATE 10/23/15 Discussion added:] But wait, there's more (which I missed when first posting this a week ago; my apologies for that). Virender Singh was carrying a kirpan in New York City, which generally outlaws all carrying in public places of "any knife which has a blade length of four inches or more" (with some exceptions that don't apply here). But Virender Singh, unlike the Singh in the 1987 case, for some reason wasn't prosecuted for violating this ordinance. Instead, he was prosecuted only for violating a New York state statute that provides, in relevant part:

A person is guilty of criminal possession of a weapon in the fourth degree when … [h]e possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another ….

The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.

Certain knives (any "gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, [or] cane sword") are categorically banned under New York state law. But, as the quoted material shows, ordinary knives are banned by the state law only when they are possessed "with intent to use the same unlawfully against another." And while that intent can be presumed from the possession, it can be presumed only if the knife is "made or adapted for use primarily as a weapon"; plus in any event, the presumption can be rebutted by evidence that the defendant didn't intend to use the knife illegally against another.

So it now appears to me that, in this case, the court might have thrown out the charges simply because the kirpan wasn't "designed, made or adapted for use primarily as a weapon," as in the Ohio Singh case, or because in any event it appeared that Virender Singh had no intention to use the kirpan illegally. If that's right, then this is just the use of evidence of religious practice to disprove the elements of a crime, and not, in this case, a dismissal in the interests of justice despite the fact that the law's elements are satisfied (the way it was in the 1987 Singh case). But again, I'm not sure why Virender Singh wasn't charged under the New York City outright possession ban as well as under the New York State possession-with-bad-intent ban.

UPDATE: I originally said that the Tagore case was still being litigated, but I've revised the post to reflect that the case settled, with the federal government changing its policy to allow employees to carry certain kinds of kirpans.

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