Today, Knife Rights Foundation filed an Amicus Curiae (Friend of the Court) brief opposing District Attorney Cyrus Vance, Jr’s appeal and his reprehensible effort to now moot his own appeal and vacate the Federal District Court decision that ruled the “wrist flick test,” used by NYPD and prosecutors to determine if a knife is a gravity knife, was unconstitutional under some circumstances.
Knife Rights had previously filed an Amicus brief opposing the DA’s motion to moot its appeal and vacate the decision and the U.S. Court of Appeals for the Second Circuit denied that motion. A 3-judge panel will now will consider that issue along with the merits of the appeal. This new Amicus Brief supports the Plaintiff-Appellee on the merits opposing the DA’s appeal and subsequent attempt to moot and vacate.
As you may recall, prior to the Governor signing the law repealing the state’s gravity knife ban completely, a District Court Judge, who actually ruled on the merits and in accordance with the law, declared the wrist flick test unconstitutionally vague.That limited decision was cited by the Governor in his bill signing statement when it appeared that our case at the Supreme Court might be accepted, which he wanted to avoid at any cost. The DA, as was expected, appealed that loss to the Second Circuit.
Then the DA changed tactics and attempted to make that decision simply go away, like it never happened, potentially allowing New York Police Department and prosecutors to return to using the unconstitutionally vague test in the transit system (subways and buses) where gravity knives remain illegal.
The DA argues that the Plaintiff-Appellee no longer has any legal claim because the statewide gravity knife ban was repealed. But, he ignores the fact that gravity knives remain banned on subways and buses in New York City and that the NYPD has made it clear they intend to enforce that ban. If they win the appeal or vacate this case, it would allow them to use the Wrist Flick Test without limitation, as they were doing previously.
Worse, he wants the Appeals Court to vacate the original decision, claiming that if the case is now moot, they do not have the opportunity to appeal that decision. Except, in this case, they had a choice to continue the appeal and instead the DA himself chose to attempt to have the appeal dismissed as moot.
That is a brazen attempt to manipulate the system unfairly to vacate the case. They would automatically win the appeal without having to actually win the appeal. In essence, the DA is the proverbial child who murders his parents and then throws himself on the mercy of the court because he is an orphan.
The DA, having made the having argued in favor of mootness, should be precluded from benefiting from its position by also having the decision vacated, regardless of the Appeals Court decision, for or against, on the mootness claim.
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