In a counter to Plaintiff’s responsive brief to their mootness letter, New York City and DA Vance have hurled a Hail Mary brief at SCOTUS in an effort to defend their mootness claim. It would appear to fail on all accounts.
They claim we did not challenge the MTA regulations in the original or amended complaint. However, that fails because we did challenge the definition of a gravity knife on which any enforcement would necessarily be based and which is the essence of the case.
They claim that the New York Police Department has abandoned the wrist flick test since the repeal, but they present no evidence that is true. More importantly, that claim is irrelevant because a case cannot be mooted simply because a party voluntarily ceases doing something, since they could just resume doing it, should they choose to. There is a specific exception to mootness for mere voluntary cessation.
With Cert having been denied, we can note that in their “mootness brief” to SCOTUS the NYPD may have committed, even in the subways (and buses), to no longer using the unconstitutionally vague “wrist flick test” that was at the root of their arrests and prosecutions, as well as our case (a test that was never actually addressed by the courts who avoided dealing with the actual merits of the case in their decisions):
“Pointing to a statement of a New York City Police Department (NYPD) spokesperson, petitioners incorrectly suggest that the NYPD will continue to use the ‘wrist-flick test’ and the definition of a ‘gravity knife’ under N.Y. Penal Law § 265.00(5) to specifically target possession of gravity knives in the subways. But neither point is true. Following the repeal, the NYPD has renounced reliance on the ‘wrist-flick test’ on which petitioners’ constitutional challenge has hinged.”
Having represented to the Supreme Court of the United States that the NYPD will not use the “wrist flick test” to enforce the gravity knife prohibitions in the subways (and buses), they may be stuck with that position under a doctrine called “judicial estoppel.” Although there is no way to know for sure until the issue is addressed by a court, people who find themselves charged with gravity knife possession in the subway under circumstances where the officer used the “wrist flick test” should consider asking their attorney to argue judicial estoppel as part of any defense.
NOTE: Absent changes in the MTA code, true gravity knives, like a German paratrooper knife, will remain illegal on subways and buses.
ALSO, NOTE: While enactment of A5944 means true gravity knives, such as the German paratrooper knife, are now legal in NY state, please REVIEW our WARNINGS about New York City Administrative Code and about Assisted-Opening Knives in general in NY State.
Finally, they claim that the fear of prosecution over past actions is unfounded speculation, however that is inconsistent with the DA’s past conduct. Further, the fact that they might bring such a prosecution, as they have in the past, is enough to keep the case alive.
The Supreme Court is scheduled to take up the petition in conference tomorrow, the 13th. At that time they will decide to take the case, decline the case, or put off a decision. It will be Monday, June 17, before they post the results of the conference.
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