Gravity knife law upheld by CA2 against facial challenge

In Copeland v. Vance (2d Cir. 6/22/2018) (Katzmann, C.J.) (3-0), a unanimous panel of the Second Circuit upheld New York’s ban on gravity knives—and the “wrist flick” test to determine whether a knife falls under the statute—against a facial challenge.

Plaintiffs claimed that New York’s gravity knife statute, Penal Law §§ 265.01(1) and 265.00(5), was void for vagueness because “ordinary people cannot reliably identify legal knives.”  The statute defines a gravity knife as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.”

Initially, the court had to decide whether the plaintiffs had brought an “as-applied” or “facial” challenge, since that would determine the test to be applied.  The court concluded that plaintiffs were bringing a facial challenge since their suit, if successful, would preclude all enforcement of the statute and because they sought to prove their claim based largely on hypotheticals.   Accordingly, plaintiffs had to show that the law was invalid in all applications. Thus, a single instance of a valid enforcement of the statute would defeat the facial challenge. Applying this “strict standard,” the court found that the retail store plaintiff had not carried its burden and, therefore, the statute was not unconstitutional.

The store in question, Native Leather, is based in Manhattan and sells a variety of knives.   The Manhattan DA subpoenaed the store, requiring it to produce any gravity knives in its possession.  The store produced over 300 knives that its owner thought could be gravity knives.  The prosecutor’s office tested each knife, seized the gravity knives and returned the balance.  The store entered into a deferred prosecution agreement with the DA’s office.  The DA’s office and police use a one-handed “flick-of-the-wrist” test to determine whether a knife “will open from a closed position.”

The plaintiffs contended that ordinary folding knives, even if they meet the “flick-of-the-wrist,” are not included in the statute’s definition.  Instead, a true “gravity knife” is one that can be opened by gravity alone, even though it can also respond to the wrist-flick test.  Plaintiffs contended that true gravity knives are quite rare, since they are not manufactured domestically.  In contrast, plaintiffs contend that some common knives are being misconstrued as gravity knives even though some additional force is necessary beyond gravity to open them.  (A previous appeal of the case involved the question of standing as to certain plaintiffs who were dismissed from the case.)

Turning to the merits, the court noted, first, that the store showed “lack of diligence” in testing the knives in its possession before turning them over to the DA’s investigators.  There was no showing that any of its knives responded inconsistently to the wrist-flick test, such that there would be problems of notice or arbitrary enforcement.

Amicus in the case, the Legal Aid Society, argued that the law is being enforced in a discriminatory fashion.  Some retailers are allowed to sell gravity knives with impunity, while others are singled out for prosecution.  The Second Circuit called the City out on this point: “We are troubled by these signs that the defendants selectively enforce the gravity knife law and are not entirely satisfied by the defendants’ responses.”  However, discriminatory enforcement does not equal unconstitutional vagueness.

The court concludes by inviting the “legislative and executive branches … to give further attention to the gravity knife law.”

 

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