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UPDATE: Oral Argument Report for Knife Rights’ New York City Gravity Knife Lawsuit Appeal

Oral Argument in the second appeal in our long-running Federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr. was held yesterday. The three-judge panel included two judges who sat on the first appeal which we won unanimously.

All three judges asked questions indicating they understood the case, which is always a good place from which to start. Plaintiffs’ attorney, Daniel Schmutter with Hartman & Winnicki, P.C., did a great job explaining how the District Court judge, in ruling against us, had fundamentally re-characterized the case in a way that did not reflect the case presented.

Click here to listen to the Oral Argument hearing.

The key issue in the case, as was explained by Schmutter, is that there is no way anyone can tell if their knife is legal and no way for them to determine that they will not be subject to arrest and criminal prosecution. Under the City’s vague and subjective “wrist flick test,” also referred to as the “functional test,” it is impossible to know what knives will be treated as legal. He reminded the judges of testimony from Assistant District Attorney Dan Rather, Jr,. who stated on the stand that a consumer could test a knife twice using the “wrist flick” maneuver in a retail store and if it did not open then it was not an illegal gravity knife. However, Rather also testified the he could be arrested immediately upon exiting if a New York City Police officer stopped that same customer and was able to “wrist flick” it open.

The City’s and District Attorney’s lawyers argued the same misleading and irrelevant positions as before. They carefully ignored the facts and this key issue of the case as demonstrated by Rather’s testimony. It was all smoke and mirrors. The reality is that nobody in New York can know that their knife is legal because the “wrist flick test” is indeterminate and variable between persons doing the test. It is therefore unconstitutionally void for vagueness.

A decision is likely six to nine months away. The decision in our first appeal took eight months.


UPDATE: Oral Argument Scheduled for Knife Rights’ New York City Gravity Knife Lawsuit

Oral Argument has been scheduled for January 18, 2018, in our long-running Federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr., which is currently under appeal.

Oral Argument before a three-judge panel of the United States Court of Appeals for the Second Circuit is the last step before a ruling in the appeal of U.S. District Court Judge Katherine B. Forrest’s tortured decision against the plaintiffs. That decision fundamentally re-characterized the case in a way that did not reflect the case presented.

The lawsuit challenges the City’s practice of treating common folding knives as prohibited “gravity knives,” then arresting and prosecuting law-abiding knife owners at the current rate of approximately 6,000 per year and intimidating retailers into paying large cash sanctions to avoid prosecution. Under the City’s vague and subjective “wrist flick” test, it is impossible to know what knives will be treated as legal.

Knife Rights members and supporters are welcome to attend the Oral Argument in New York City. The hearing is scheduled for Thursday, January 18, 2018 at 10:00 AM in Courtroom 1703 at the Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York City.  (Click here for the Court’s map and subway directions or Click here for Google Maps).

Please note that this is not a trial court and the format of the hearing may be very unfamiliar to attendees. This is a very formal proceeding in front of a Federal Appeals Court, just one step below the U.S. Supreme Court. The attorneys from each side present their arguments and then they will be grilled by the three Appeals Court Judges on the panel as to the fine points of their legal arguments and the law. The actual hearing can be expected to last as few as 30 minutes up to an hour at the most.

Although the calendar has our case scheduled for 10:00 AM, there are other cases on the 10:00 AM calendar as well, so there is no way to predict exactly when our case will be heard that morning.

If you come to watch, it should come as no surprise that you will have to leave your pocketknife at home and you will have to pass through a metal detector and screening area. You may not be allowed to bring a cell phone, tape recorder or photographic equipment into the court house, so be prepared for that. Allow extra time to get through security.

While it isn’t required that you “dress up” in a suit and tie, please do respect the Court and dress appropriately. While in attendance, please remember that your actions will reflect on Knife Rights–you are there only to respectfully and courteously witness the proceedings.

Please consider making a year-end TAX-DEDUCTIBLE donation to the Knife Rights Foundation. It’s your contributions that make our work possible.

www.KnifeRights.org/donate/foundation

Scroll down to review the full appeal record including Plaintiff’s Appeal Brief and the two Amicus Briefs in support.


UPDATE: DA Vance Submits Disingenuous 28(j) Letter in Knife Rights’ New York City Gravity Knife Lawsuit – Plaintiffs Respond

After New York Governor Cuomo vetoed Knife Rights’ Gravity Knife Law Reform bill, focus shifted back to our long-running Federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr., which is currently under appeal.

Last week, the DA submitted a Rule 28(j) letter to the Appeals Court. Under Federal Rules of Appellate Procedure, Rule 28(j), it is allowed for counsel to advise the court of a “pertinent and significant” authority that came to the party’s attention after briefs have been filed. Apparently, the DA felt that the Governor’s veto was “pertinent and significant.”

The DA’s letter disingenuously closes with the claim, “whether and to what extent the public safety risk is outweighed by legitimate uses of folding knives that meet the statutory definition is an issue for the elected branches of government and one that they are attempting to address.”

Plaintiffs have responded with their own letter, noting, “The DA takes a position…which is hard to reconcile with the facts…two years in a row, the DA has, himself, aggressively opposed such legislative efforts and has now twice convinced the Governor to veto precisely such an effort undertaken by a nearly unanimous Legislature in both instances. This year the vote in favor of the bill was 136-1 in the Assembly and 61-1 in the Senate.”

This is an unconstitutional enforcement of the law that only these Defendants favor.  The Legislature sought to fix the law by deleting its reference to centrifugal force – the very source of the unconstitutional Wrist Flick Test.  Yet, Defendants have successfully enlisted the Governor’s help to block any legislative effort to change the law for the better so that it comports with due process.

Click here to read the DA’s 28(j) Letter
Click here to read the Plaintiff’s Response to DA’s 28(j) Letter

Oral argument before a 3-judge panel is expected to be scheduled in the near future. Stay tuned.


UPDATE: Plaintiffs’ Reply Brief Filed in Knife Rights’ New York City Gravity Knife Lawsuit

The Plaintiffs have filed their reply brief in our federal civil rights lawsuit against Manhattan District Attorney Cyrus R. Vance, Jr. and the City of New York. The reply brief is Plaintiffs’ response to the outrageously misleading briefs submitted by the Defendants. While they once again attempted to steer the Court away from the main issue in the case, which is that no one can ever test a knife using the challenged “wrist flick test” and conclude that it is legal, Plaintiffs’ reply emphasizes that this issue is at the crux of the case and the Court should not allow itself to be misdirected by the Defendants.

This is because the Wrist Flick Test only identifies an illegal knife. It cannot ever identify a legal knife, which is essential if the Plaintiffs, John Copeland,  Pedro Perez, or retailer Native Leather (or anyone else for that matter), want to ever purchase and carry a common folding knife in New York City without risking arrest and prosecution. This is the essential constitutional vagueness problem at issue and neither the DA nor the City ever engaged this point in their briefs.

Click here to read the Plaintiffs’ Reply Brief

Click here to read the City’s Brief

Click here to read the DA’s Brief

Meanwhile, Knife Rights’ Gravity Knife Law Reform Bill passed in June with only a single “nay” vote in either house. It should be transmitted to Governor Cuomo shortly. This bill attempts to solve the problem of the continuing arrests and prosecutions on bogus Gravity Knife charges in New York City by removing “centrifugal force” from the definition of a gravity knife. That should stop the use of the unconstitutional “wrist flick test” that is the source of the problem and target of our lawsuit.

“We will continue to pursue both tracks towards a solution until we are victorious and New Yorkers can carry a common folding knife without fear of arrest and prosecution,” said Knife Rights Chairman Doug Ritter.


UPDATE: DA & NYC Appeal Briefs Filed in Knife Rights’ New York City Gravity Knife Lawsuit

The Defendants have filed their appeal briefs in our federal civil rights lawsuit against Manhattan District Attorney Cyrus R. Vance, Jr. and the City of New York. The Defendants once again attempt to steer the Court away from the main issue in the case, which is that no one can ever test a knife using the challenged “wrist flick test” and conclude that it is legal.

This is because the Wrist Flick Test only identifies an illegal knife. It cannot ever identify a legal knife, which is essential if the Plaintiffs, John Copeland,  Pedro Perez, or retailer Native Leather (or anyone else for that matter), want to ever purchase and carry a common folding knife in New York City without risking arrest and prosecution. This is the essential constitutional vagueness problem at issue and neither the DA nor the City ever engage this point in their briefs.

Once again the Defendants are grasping at straws because they have no real response to the key issue in the case. Hopefully the Court will not be misled and will recognize the real issue before them, just as they understood in the first appeal in this case when they unanimously reversed the previous erroneous ruling of the District Court.

Click here to read the City’s Brief

Click here to read the DA’s Brief

Meanwhile, Knife Rights’ Gravity Knife Law Reform Bill passed in June with only a single “nay” vote in either house. It should be transmitted to Governor Cuomo shortly. This bill attempts to solve the problem of the continuing arrests and prosecutions on bogus Gravity Knife charges in New York City by removing “centrifugal force” from the definition of a gravity knife. That should stop the use of the unconstitutional “wrist flick test” that is the source of the problem and target of our lawsuit.

“We will continue to pursue both tracks towards a solution until we are victorious and New Yorkers can carry a common folding knife without fear of arrest and prosecution,” said Knife Rights Chairman Doug Ritter.


UPDATE: Two Amicus Briefs Filed in New York City Federal Civil Rights Lawsuit

Two amicus curiae (friend of the court) briefs have been filed in support of Knife Rights’ Appeal in its federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr.

The first brief, filed by a group of 17 law professors led by Yale law professor Gideon Yaffe, highlights how the gravity knife law is even more problematic under the Constitution because it does not require the state to prove that a person knows a knife is illegal for that person to be subject to arrest and prosecution.

While our Plaintiffs argue that the DA’s and City’s enforcement approach makes it impossible for a person to figure out if a knife might be considered a gravity knife, so they can protect themselves from arrest and prosecution, these amici go a step further and argue that our traditions of Due Process typically require for criminal laws such as this one that the state prove that a person knows he possesses an illegal object. The failure of New York law to require such proof of what is known as mens rea makes the vagueness and lack of notice all that much more suspect under our Constitution. This excellent brief was written pro bono by attorney Douglas M. Garrou, a partner at Hunton & Williams LLP in Richmond, Virginia.

Click to read the Law Professors’ amicus brief.

The second brief, filed by the Legal Aid Society, advances two arguments. First, the defendants’ failure to consistently arrest and prosecute retailers for possessing and selling putative gravity knives exacerbates the vagueness problem created by the Wrist-Flick Test. No reasonable person has adequate notice of the law when the NYPD treats an item as a tool on a store shelf, but an illegal weapon once purchased and they walk out the door with it. Second, the defendants treat the gravity knife statute as a modern-day vagrancy law, abusing it to sort and punish those people they deem undesirable, not individuals who have committed a clear violation of a precise code.

Click to read the  the Legal Aid Society amicus brief.


UPDATE: Appeal Brief Filed in Knife Rights’ New York City Lawsuit

The plaintiffs’ appeal brief in our federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr., has been filed in the U.S. Court of Appeals for the Second Circuit in response to U.S. District Court Judge Katherine B. Forrest’s tortured 35-page decision in the case.


In her decision, Judge Forrest fundamentally re-characterized the case in a way that did not reflect the case presented. The judge essentially decided a case not before her and ignored Plaintiffs’ actual claim and proofs. These errors led the court to uphold a plainly unconstitutional law enforcement practice.The Court disregarded key evidence and ignored the basic argument in the lawsuit that a person has no way of knowing if he possesses a knife that could result in arrest and prosecution.  That is the central issue in Plaintiff’s constitutional Void for Vagueness claim.

Assistant DA Dan Rather, Jr. even admitted at trial that a knife that cannot be “flicked” open by the purchaser at the time of lawful purchase can suddenly transform into an illegal gravity knife two steps out the door if an NYPD officer is able to “flick” it open.Despite that damning testimony that proves that the City’s so-called “wrist flick” test is subjective, variable, and thus unconstitutionally vague, as well as all the other evidence presented by the Plaintiffs in the case, the Court avoided dealing with this key point by essentially ignoring Plaintiffs’ claim. Instead, the Court bought into the City’s and DA’s egregious argument that the claim that the Plaintiffs could not purchase another knife without risking arrest again was hypothetical, when it is not at all.  It is a real risk that the Plaintiffs face, as well as anyone else, in buying or carrying a common folding knife in New York City.

Meanwhile, Knife Rights’ Gravity Knife Reform Bill has passed the Assembly with only a single “nay” vote and has passed out of the Senate Codes Committee. A Senate floor vote is expected shortly. The bill was introduced earlier this year in an effort to solve legislatively the problem of the continuing arrests and prosecutions on bogus Gravity Knife charges in New York City. Governor Cuomo vetoed last year’s bill, which had passed the legislature overwhelmingly, on New Year’s Eve.


UPDATE: Docs Filed in Knife Rights Appeal in New York City Gravity Knife Lawsuit

Following up on the Notice of Appeal in our federal civil rights lawsuit against New Your City filed last month, the next set of required preliminary papers has been filed.

Our Pre-Argument Statement (Form C) is a required filing that includes Addendum A and B which lay out the basics of the case, with a “Description of the Nature of the Action” and “Issues to be Raised on Appeal.” This provides the foundation upon which the actual appeal brief of District Court Judge Katherine B. Forrest’s tortured 35-page decision in the case will rest.

Actual briefs in the case will be filed with the Court of Appeals for the Second Circuit within several months.


UPDATE: Docs Filed in Knife Rights Appeal in New York City Gravity Knife Lawsuit

Once again the Plaintiffs in our federal civil rights lawsuit against New York City and District Attorney Cyrus Vance, Jr., have filed a Notice of Appeal following U.S. District Court Judge Katherine B. Forrest’s tortured 35-page decision in the case.

In the prior appeal of Judge Forrest’s initial outrageous dismissal of the case, the Court of Appeals for the Second Circuit ruled unanimously in favor of the Plaintiffs. That led to a trial on the merits and the outrageous decision being appealed this time around.

In her decision, Judge Forrest fundamentally re-characterized the case in a way that did not reflect the case presented. The Court disregarded key evidence and ignored the basic argument in the lawsuit that a person has no way of knowing if he possesses a knife that could result in arrest and prosecution. That is the central issue in Plaintiff’s constitutional Void for Vagueness claim. Assistant DA Dan Rather, Jr. even admitted at trial that a knife that cannot be “flicked” open by the purchaser at the time of lawful purchase can suddenly transform into an illegal gravity knife two steps out the door if an NYPD officer is able to “flick” it open.

Despite that damning testimony that proves that the City’s so-called “wrist flick” test is subjective, variable, and thus unconstitutionally vague, as well as all the other evidence presented by the Plaintiffs in the case, the Court avoided dealing with this key point by essentially ignoring Plaintiff’s claim. Instead, the Court bought into the City’s and DA’s egregious argument that the claim that the Plaintiffs could not purchase another knife without risking arrest again was hypothetical, when it is not at all. It is a real risk that the Plaintiffs face, as well as anyone else, in buying or carrying a common folding knife in New York City.

Plaintiffs have commenced their appeal of the adverse decision and briefs in the case will be filed with the Court of Appeals for the Second Circuit within several months.

Knife Rights’ Gravity Knife Reform Bill was introduced earlier this week in an effort to solve legislatively the problem of the continuing arrests and prosecutions on bogus Gravity Knife charges in New York City. Governor Cuomo vetoed last year’s bill, which had passed the legislature overwhelmingly, on New Year’s Eve.


Federal Court Upholds Unconstitutional and Discriminatory Gravity Knife Arrests

Knife Rights Will Appeal Tortured Decision


Last Friday U.S. District Court Judge Katherine B. Forrest ruled in favor of New York City and District Attorney Cyrus Vance, Jr. in Knife Rights’ long-running federal civil rights case challenging the City’s policy of treating any locking blade folding knife that can be “flicked” open as a prohibited gravity knife.

In a tortured 35-page decision, the Court fundamentally re-characterized the case in a way that did not reflect the case presented. The Court disregarded key evidence and ignored the basic argument in the lawsuit that a person has no way of knowing if he possesses a knife that could result in arrest and prosecution.  That is the central issue in Plaintiff’s constitutional Void for Vagueness claim. Assistant DA Dan Rather, Jr. even admitted at trial that a knife that cannot be “flicked” open by the purchaser at the time of lawful purchase can suddenly transform into an illegal gravity knife two steps out the door if an NYPD officer is able to “flick” it open.Despite that damning testimony that proves that the City’s so-called “wrist flick” test is subjective, variable, and thus unconstitutionally vague, as well as all the other evidence presented by the Plaintiffs in the case, the Court avoided dealing with this key point by essentially ignoring Plaintiff’s claim. Instead, the Court bought into the City’s and DA’s egregious argument that the claim that the Plaintiffs could not purchase another knife without risking arrest again was hypothetical, when it is not at all.  It is a real risk that the Plaintiffs face, as well as anyone else, in buying or carrying a common folding knife in New York City.Plaintiffs will appeal this decision that upholds an unconstitutional policy.With this decision, Judge Forrest has doomed thousands more to arrest and prosecution for carrying common pocket knives that won’t get someone arDaniel Patrick Moynihan United States Courthouse Southern District of New Yorkrested virtually anywhere except in New York City. Read the decision at: us.KnifeRights.org/NYC_Decision_01272017.pdf
 
It is not uncommon for lower courts, especially in the Northeast, to uphold questionable and constitutionally problematic laws involving knives and firearms. As such, it is not all that surprising that the Court delivered this decision. The real battle almost always takes place in the appellate courts, which is where this case is headed now, and always was, regardless of this lower court’s decision.

 

Until Plaintiffs win on appeal, those living in or visiting New York City and carrying common folding knives with a locking blade will continue to be needlessly harassed,  imprisoned and prosecuted by the City’s “stop and flick” follow-up to the infamous “stop and frisk” policy previously ruled unconstitutional.

All but a handful of those trumpeted stop and frisk “illegal weapon” arrests and seizures involved these same common folding knives carried and used by millions of Americans everyday at home, work and while recreating. Research by the Legal Aid Society and The Village Voice concluded that over 85% of the over 60,000 persons that are estimated to have been arrested and prosecuted for carrying these common folding knives in the past 12 years are minorities — a glaringly discriminatory arrest policy. Even New York’s Governor, while recently vetoing for his own politically-inspired motivations Knife Rights’ legislation that passed overwhelmingly, and which would have resolved this issue, called these arrests “absurd.”

Knife Rights Chairman Doug Ritter said, “we knew when we started this lawsuit that it would be a long road to justice and we are prepared to see it through. We will carry on seeking justice and the restoration of sanity to New York knife law and we are looking forward to presenting the appeal before the Second Circuit.”

The lawsuit challenges New York City’s and District Attorney Vance’s attempt to criminalize as contraband the most widely-owned pocket knives in America — locking blade folding knives — under state law prohibiting gravity knives. The case seeks a judicial determination that the New York State law regarding gravity knives is unconstitutionally vague as applied by NYC and the DA to these common folding knives (which are distinct from gravity knives because of their bias towards closure). Knife Rights’ lawsuit intends to stop NYC law enforcement and officials from abusing this unconstitutionally vague state law to make bogus arrests of law-abiding citizens carrying common pocket knives, and from coercing knife retailers into making huge payments to avoid prosecution.

Meanwhile, Knife Rights and the broad coalition of organizations opposing the City’s gravity knife policy continue to work with New York Assemblyman Dan Quart and Senator Diane Savino on a legislative solution to the problem. Look for a new bill to be filed shortly.

 


NOT in NYC
WARNING: New York City has interpreted the state law against gravity knives such that if an officer can “wrist flick” the knife blade open, or alleges that the knife might be able to be opened in such a manner, and the knife blade locks open, that knife is an illegal gravity knife, even if you cannot do so. NYC takes this position even if it requires multiple tries and use of exaggerated arm thrust or motion. Using this interpretation, most any locking blade folding knife might be deemed an illegal gravity knife.

Note also that New York City administrative code has an under-4-inch blade length limit and requires knives be carried FULLY concealed. Knife Rights suggests that you never carry your knife clipped to your pocket in New York City as it is illegally “not concealed” and will likely result in a stop by NYPD, resulting in a violation or arrest. Even when covered by a jacket, simply moving the jacket aside to get to a wallet has been enough to get folks a violation or arrested. Always ensure your knife is completely concealed at all times, including not “printing” on the outside of your clothing. In addition, be extremely circumspect about using a knife for any purpose in a public setting.

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