Appeal of August 4, 1980

INNER CITY SURVIVAL COMPANY
Box 1286
Post Falls, Idaho 83854
From a Non-Mailability Ruling
re "Defense Pencil"

P.S. Docket No. 8/83

Quentin E. Grant Administrative Law Judge

APPEARANCE FOR APPELANT:                             Barry W. Davidson, Esq.
                                                                                Hackney, Delaney & Davidson
                                                                                N. 9413 Newport Highway
                                                                                Spokane, WA 99218

APPEARANCE FOR U.S. POSTAL SERVICE:          Thomas A. Ziebarth, Esq.
                                                                                Law Department
                                                                                United States Postal Service
                                                                                Washington, D.C. 20260

INITIAL DECISION

Appellant appeals from an adverse decision of the Rates and Classification Department, USPS, as to the mailability of a product called the Inner City Survival Defense Pencil.

The parties have elected to submit the matter on the written record. To the opportunity given both parties to supplement the record USPS has responded with a memorandum of law. Appellant has filed no supplemental material.

FINDINGS OF FACT

1. Appellant sells a product called the Inner City Survival Defense Pencil (hereinafter sometimes called the Defense Pencil or the product). An advertisement inviting mail orders for the product is the only evidence in the record as to its nature. Following is a copy of this ad:

2. It is not apparent from the record exactly how the matter of the mailability of the product arose. But, in any event, on April 28, 1980, the Special Services Division, Rates & Classification Department, USPS, issued a ruling that the product is nonmailable. Following is the critical portion of the ruling:

"This product is considered to be nonmailable in accordance with Title 18, United States Code, section 1716(g) and the implementing regulation 124.45 of the Domestic Mail Manual, as it is spring loaded with a release mechanism capable of projecting a 3 1/2" sharpened metal object. In that a blade is described in part as the cutting part of a tool, instrument or weapon, the sharpened metal object is considered to fall within this definition."

3. Appellant's argument for mailability is set forth in its Notice of Appeal from the above ruling as follows:

"What we are asking for is a review of the mailability determination of April 28, 1980.

"It is our position that the pencil is not a switchblade knife as defined in Special Mailing Rule 124.45. This position is founded on the basic premise that the pencil has no blade, as is referred to in 124.45, but is rather a sharp pointed object. The distinction between knives and other sharp pointed objects is implied in 124.47.

"We request that the pencil be recognized as being more on the nature of a sharp pointed object, such as an icepick or a hairpin."

4. The caption of 18 U.S.C. § 1716 is "Injurious articles as nonmailable." Subparagraph (g) of § 1716 reads in pertinent part as follows:

(g) All knives having a blade which opens automatically (1) by hand pressure applied to a button or other device in the handle of the knife or (2) by operation of inertia, gravity, or both, are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service.

5. Section 124 of the Domestic Mail Manual is entitled, "Nonmailable Matter-Articles and Substances; Special Mailing Rules." Paragraph 124.45 is captioned "Switchblade Knives." The pertinent subparagraph thereof reads as follows:

.451 When Mailable. Knives having a blade which opens automatically by hand pressure applied to a button or other device in the handle, or by operation of inertia, gravity, or both, are mailable only, when sent to: the exceptions which follow are not applicable in this case .

Subparagraph .47 referred to in the Notice of Appeal reads:

.47 Sharp Objects and Knives. Sharp-pointed or sharp-edged instruments such as knives, tools, ice picks, razor blades, etc., must be wrapped to protect their points and edges from cutting through the outer carton in which they are shipped.

6. The Defense Pencil is obviously intended to be used as a weapon. It has a slender, concealed shaft with a sharp point, operated by a button-released spring or by gravity.

DISCUSSION

The issue is whether the Inner City Survival Defense Pencil is a knife within the meaning of 18 U.S.C. § 1716(g), and the implementing mailability regulation, supra.

Webster's Third New International Dictionary defines the work knife as "a simple instrument used for cutting consisting of a sharp-edged us. steel blade provided with a handle."

Lacking a blade, the Defense Pencil is not a knife within the dictionary definition. But Counsel for USPS says that reference to the legislative history of the statute shows that Congress intended it to cover more than an instrument with a cutting edge.

Examination of the legislative history confirms the position taken by USPS. Floor debates in both the Senate and the House of Representatives (Congressional Record June 26, 1958, pp. 11173-4; July 31, 1958, pp. 14376-78) disclose that the main purpose of the Act is to prevent the widespread availability for criminal purposes of quick-opening weapons with concealed blades or sharp points released by pressure, gravity, or inertia. There are numerous references to stilettos (slender daggers or sharp pointed instruments) in the debates as well as bladed devices. It is clear that the statute is intended to encompass within its mailing prohibition stilletto-type weapons.

CONCLUSIONS OF LAW

The Inner City Survival Defense Pencil is one of the kinds of knife which 18 U.S.C. § 1716(g), as implemented by Section 124 of the Domestic Mail Manual, makes nonmailable.

The sharp objects and knives mentioned in paragraph 124.47 of the Domestic Mail Manual are of a different character. They do not involve concealed blades or points and are not designed primarily for use as weapons.

The nonmailability ruling dated April 28, 1980 pertaining to the Inner City Survival Defense Pencil was correct and is affirmed.