The U.S. Court of Appeals for the Second Circuit unanimously ruled today that Knife Rights’ Federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr. will proceed, reversing a District Court’s erroneous dismissal of the case on procedural “standing” grounds. You can review the Second Circuit’s decision at: http://www.kniferights.org/KRvNYC_Second_Circuit_Opinion.pdf
The Second Circuit ruled that Knife Rights’ plaintiffs John Copeland, Pedro Perez, and Native Leather have the right to pursue their claims to end the unconstitutional manner in which the City and the DA have enforced state gravity knife law against honest individuals and businesses with regard to common folding knives.
The reversed lower court previously found that the claims were not specific enough to proceed because they did not identify specific makes and models of folding knives at issue — even though the very inability to determine which knives would be arbitrarily deemed “illegal” is the basis of the lawsuit itself! The Second Circuit agreed that specific knives need not be identified for the case to proceed.
Knife Rights Chairman Doug Ritter said, “we are very pleased that we have overcome the absurd ruling of the lower court on ‘standing’ and can now proceed with the heart of the case itself — the unconstitutional manner in which the City and DA enforce the New York State’s gravity knife law to potentially demonize all folding knives.”
There have been over 60,000 “gravity knife” prosecutions in the City in the past 10 years, with the rate doubling recently. These prosecutions have focused almost exclusively on common locking-blade pocket knives, not actual historical paratrooper gravity knives which were the basis for the statute back in the 1950s. The so-called “wrist flick” test employed by the City and DA is a completely subjective test with immense variability and no knife owner can know can know with certainty whether or not his or her knife is legal at any point in time. This enforcement is unconstitutionally vague and must not continue.
July 27, 2015: Knife Rights last week filed a Rule 28(j) Notice of Supplemental Authorities in Knife Rights’ Federal Civil Rights lawsuit against New York City and District Attorney Cyrus Vance, Jr.
A Rule 28(j) filing is used to “bring pertinent and significant authorities” to the Court’s attention after oral argument (in our case, back in January of this year), but before the decision is announced. In this instance the U.S. Supreme Court recently issued an 8-1 decision in the case of Johnson v United States which bolstered Knife Rights’ argument that the New York State law regarding gravity knives is unconstitutionally vague as applied by NYC and the DA to common folding knives (which are distinct from gravity knives because of their bias towards closure).
Justice Scalia wrote the opinion, which determined the residual clause in question to be in violation of the Fifth Amendment. Scalia described the statute as a “failed enterprise” that invited “arbitrary enforcement.” He declared that individuals are unconstitutionally deprived of due process when they are convicted under “a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes.”
We noted that SCOTUS also held that to survive a vagueness challenge the law must be clear in all its applications, not just some. Justice Scalia wrote, “our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.” So, even if the state gravity knife law is not vague in some instances, this decision goes directly to the City’s and DA’s “wrist flick” test because no one can know if any Common Folding Knife is legal since the test is inherently subjective and thereby is unconstitutionally vague in at least this particular instance.
The DA filed a responsive letter, but failed to address our argument in any substantive way. They merely contradicted our conclusion without providing any analysis or basis for their assertion.
You can read Knife Rights’ Rule 28(j) brief at: www.KnifeRights.org/28j_brief.pdf
Read the DA’s response at: www.KnifeRights.org/28j_brief_DAresponse.pdf
Jan. 16, 2015: Oral argument in the appeal of Knife Rights’ Federal Civil Rights case against New York City and District Attorney Cyrus Vance, Jr., which was dismissed on standing grounds, was held on January 13 in New York City. In response to questions from the bench, the DA’s attorney was forced to admit that what had happened to plaintiff John Copeland could happen to anyone. When asked directly if someone could show his knife to two policemen who tested the knife with the city’s (indeterminate) “wrist-flick” test and found the knife legal, that the same knife could later be found illegal by a third policeman, he agreed that was the case. That goes directly to the claim in the lawsuit that this test is unconstitutionally vague because no one can know if any Common Folding Knife is legal.
The DA’s attorney further admitted that any knife could be legal one day and illegal the next, claiming that they expect all knife owners to test their knife “regularly” (perhaps meaning before every use) to determine if it is still legal, an absurd requirement, even were an individual’s own “wrist-flick” test determinate, which it is clearly not.
He also appeared unfamiliar with how the law is actually applied by the DA’s office, claiming that if an individual had tested his knife “20 times” that a “reasonableness” standard would be applied and that person would not be prosecuted. We know that is not the case, otherwise there would not have been an estimated 60,000 prosecutions under this law, nor would Copeland have been prosecuted. The judge involved in this line of inquiry expressed skepticism that anything short of trial would address the issue, which is, of course, the truth and reality that knife owners caught up in this injustice deal with daily.
Finally, he also mischaracterized the Federal Switchblade Act, claiming that New York’s gravity knife law used identical language, while neglecting to mention the fifth exception that was passed by Congress in 2009 (with Knife Rights’ support) to clarify that knives with a bias towards closure are not included. These knives are what we characterize in our lawsuit as a Common Folding Knife, which we claim as being distinct from a true gravity knife which has no bias whatsoever. That is a key element of the lawsuit. Our briefs go into considerable detail on this point.
In response to a question about Swiss Army Knives, our attorney, Dan Schmutter, responded that some Swiss Army Knives with locking blades could be deemed gravity knives by the DA and NYPD if someone could “wrist-flick” the knife open. That response appeared to surprise the judge asking the question.
While perhaps seemingly somewhat tangential to the issue of standing which is under review, these issues go to the heart of the appeal. U.S. District Judge Katherine B. Forrest ruled that the case could not proceed because Knife Rights and four other plaintiffs (who were falsely arrested or threatened with prosecution for possessing Common Folding Knives) did not identify specific knives being wrongly classified in their complaint, and therefore lacked standing to sue. Requiring identification of specific prohibited knives, in a case about the inability to know what is prohibited or permitted, turns the very idea of this lawsuit on its head.
A decision on the appeal is likely months away, but regardless of how it goes, Knife Rights is committed to continuing to pursue justice for knife owners in New York City.
Knife Rights’ Latest Brief in NYC Lawsuit Cuts Through District Attorney’s Baseless Arguments
Sept. 2, 2014: Knife Rights filed a Reply Brief in its appeal of a U.S. District Court’s absurd ruling in its ongoing Federal Civil Rights lawsuit against New York City and Manhattan District Attorney Cyrus Vance, Jr. The 30-page legal brief was filed on August 28, 2014, and can be viewed at: www.KnifeRights.org/Knife_Rights_Reply_Brief.pdf
The Reply Brief is the final document needed for the U.S. Court of Appeals for the Second Circuit to consider the appeal brought by Knife Rights. It was submitted in response to the District Attorney and City’s briefs opposing the appeal. You can read the nonsensical government brief here: www.KnifeRights.org/DAoppbrief.pdf
The lawsuit challenges the City’s practice of treating common folding knives as prohibited “gravity knives,” then arresting and prosecuting law-abiding knife owners and intimidating retailers into paying large cash sanctions to avoid prosecution. Under the City’s vague and subjective approach, it is impossible to know what knives will be treated as legal.
Knife Rights’ original appeal can be read here: www.KnifeRights.org/Knife_Rights_Appeal_Brief.pdf
Last Fall, U.S. District Judge Katherine B. Forrest ruled that the case could not proceed because Knife Rights and four other plaintiffs (who were falsely arrested or threatened with prosecution for possessing common folding knives) did not identify specific knives being wrongly classified in their complaint, and therefore lacked standing to sue. Requiring identification of specific prohibited knives, in a case about the inability to know what is prohibited or permitted, turns the very idea of this lawsuit on its head.
Judge Forrest then added insult to injury by refusing a request to let Knife Rights amend the complaint to attempt to comply with her requirement that specific knives be identified.
The next step will be oral arguments in front of a panel of three Second Circuit Court of Appeals judges as early as this Fall,after which the judges will render a decision.
Knife Rights’ fight to stop the persecution of knife owners in NYC and to prevent this from spreading to other cities will continue. You can support this lawsuit with a tax-deductible charitable contribution to the Knife Rights Foundation: www.KnifeRights.org/Donate
May 19, 2014: Knife Rights filed an appeal of a U.S. District Court’s absurd ruling in its ongoing Federal Civil Rights lawsuit against New York City and Manhattan District Attorney Cyrus Vance, Jr. The 62-page legal brief was filed on May 15, 2014, and can be viewed at: www.KnifeRights.org/Knife_Rights_Appeal_Brief.pdf
The lawsuit challenges the City’s practice of treating common folding knives as prohibited “gravity knives,” then arresting and prosecuting law-abiding knife owners and intimidating retailers into paying large cash sanctions to avoid prosecution. Under the City’s vague and subjective approach, it is impossible to know what knives will be treated as legal.
Last Fall, U.S. District Judge Katherine B. Forrest ruled that the case could not proceed because Knife Rights and four other plaintiffs (who were falsely arrested or threatened with prosecution for possessing common folding knives) did not identify specific knives being wrongly classified in their complaint, and therefore lacked standing to sue. Requiring identification of specific prohibited knives, in a case about the inability to know what is prohibited or permitted, turns the very idea of this lawsuit on its head.
Judge Forrest then added insult to injury by refusing a request to let Knife Rights amend the complaint to attempt to comply with her requirement that specific knives be identified. Briefing on the appeal will continue for several months.
Dec 23, 2013: Knife Rights has a filed a Notice of Appeal in its federal civil rights lawsuit against New York City, following a judge’s refusal to allow supposed “defects” in the case documents to be corrected. The judge previously used those “defects” to try to throw out the case.
U.S. District Judge Katherine B. Forrest previously held that the plaintiffs don’t have standing to sue, because the complaint didn’t identify specific knives that would be illegal under New York City’s misinterpretation of state law. Ironically, the whole point of the case is that it’s nearly impossible to figure out what is legal or illegal under New York City’s haphazard and inconsistent approach – even the DA has admitted that different specimens of the exact same make and model knife could be simultaneously found to be both legal and illegal!
Following the Judge’s decision, Knife Rights sought permission to amend its complaint to address the supposed defects in it–a basic courtesy that is supposed to be freely given. Instead, the judge found that allowing Knife Rights to fix the defects she herself had identified would somehow prejudice NYC, ignoring that ending the case is the ultimate prejudice to those being wrongly arrested under the city’s misinterpretation of state law!
So, Judge Forrest has identified supposed defects in the case, while simultaneously denying Knife Rights the chance to fix those defects. That outrageous decision cannot stand. Knife Rights has filed notice that it intends to appeal the ruling, and briefs in the case will be filed with the Second Circuit Court of Appeals within several months.
Knife Rights will never stop fighting for your rights, and neither should you. Please help us win this critical battle by contributing to the Knife Rights Foundation today as generously as you can. We’ve led the fight to defend knife rights in the legislative arena and we are pioneering it in the courts. Please help us defend freedom!
Oct. 7, 2013: Knife Rights has asked the Court for permission to amend its complaint to add details the Court said should have been included when it dismissed Knife Rights’ Federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr. last week. The outrageous decision by U.S. District Court Judge Katherine B. Forrest found that persons arrested or threatened with arrest in NYC do not have standing to sue, in part because details about certain knives were not included in the complaint. Yet the Court failed to allow Knife Rights to add those details – a standard practice in litigation. Knife Rights has now formally moved for reconsideration of the decision, and for leave to amend the complaint.
Leave to amend is supposed to be freely granted according to well-established legal principles. While we do not believe that the original complaint was defective in any way, we believe it was erroneous for the Court not to allow us an opportunity to amend the complaint to address the Court’s findings. If the motion for reconsideration is granted, the lawsuit would be able to continue forward without having to appeal to a higher court.
In her original ruling this recently appointed judge said that the plaintiffs in our case do not have standing to sue, in part because the case documents don’t identify specific knives that would be illegal under New York City’s interpretation of state law. The trouble is, it’s nearly impossible to identify them under New York City’s haphazard and inconsistent approach – which is the whole point of the case in the first place! Even the DA has admitted that different specimens of the exact same make and model knife could be simultaneously found to be both legal and illegal! Click to read the judge’s ruling.
While certainly a setback, standing issues are a typical obstacle in federal civil rights cases against governments. It will not deter us from continuing the lawsuit.
Knife Rights will never stop fighting for your rights, and neither should you. Please help us win this critical battle by contributing to Knife Rights Foundation’s Legal Fund today as generously as you can. We’ve led the fight to defend knife rights in the legislative arena and we are pioneering it in the courts. Please help us defend freedom!
Knife Rights Foundation Legal Fund TODAY!
Sept. 26, 2013: A U.S. District Court Judge has ruled that persons falsely arrested or threatened with arrest have no standing to sue in Knife Rights’ Federal civil rights lawsuit against New York City and District Attorney Cyrus Vance Jr. Although every prior ruling in the case went our way under two previous judges, the case was recently reassigned to a recently appointed judge, Katherine B. Forrest. Litigation always presents the risk that a judge (and especially a judge new to a case) will make an erroneous ruling.
On Tuesday the judge ruled that the plaintiffs in our case – who have been falsely arrested or threatened with arrest over common pocket knives – do not have standing to sue, in part because the case documents don’t identify specific knives that would be illegal under New York City’s interpretation of state law. The trouble is, it’s nearly impossible to identify them under New York City’s haphazard and inconsistent approach – which is the whole point of the case in the first place! Even the DA has admitted that different specimens of the exact same make and model knife could be simultaneously found to be both legal and illegal! Click to read the judge’s ruling.
So here we have a situation where we’re suing because we can’t know with certainty what’s legal or banned, yet the judge is saying we don’t have standing to sue precisely because we haven’t identified what’s legal or banned in our court papers. That’s simply absurd!
But even if the judge were correct – which she is not – she was required by well-established legal principles to allow us a chance to amend our papers to “correct” the supposed “defects.” Instead, she simply ignored these principles and declared the case over.
A similar situation arose in a recent lawsuit involving a U.S. District Judge in neighboring New Jersey. After straining to find supposed “defects” in the complaint that affected standing, the judge refused to allow the complaint to be amended to correct the “defects.” On appeal, the ruling was reversed and the appeals court criticized the judge, saying she had abused her discretion. The same thing could happen here.
But whatever happens, this ruling forces Knife Rights to spend more time and money to appeal the judge’s decision – all while Rome continues to burn. We still receive calls every week from innocent citizens whose lives have been turned upside down simply because they carried a basic tool, a pocket knife, in New York City. Thousands have been arrested on bogus illegal knife charges. In at least one instance of which we are aware, the result of the bogus arrest was that the victim’s entire knife collection was confiscated from his home. Gun owners have had their firearms confiscated based on bogus knife arrests.
We cannot let New York City succeed in its attempt to redefine “gravity knife” to include ordinary folding knives. This could become a model for other cities and jurisdictions across America, resulting in knife owners throughout the country being arrested for doing nothing wrong. We cannot let that happen! And, we will not!
Knife Rights is carefully planning its response to Judge Forrest’s ruling. We will never stop fighting for your rights, and neither should you. Please help us win this critical battle by contributing to Knife Rights Foundation’s Legal Fund today as generously as you can. We’ve led the fight to defend knife rights in the legislative arena and we are pioneering it in the courts. Please help us defend freedom!
Knife Rights Foundation Legal Fund TODAY!