The Supreme Court of the United States denied Plaintiff’s petition for a Writ of Certiorari, ending eight years of Knife Rights’ federal civil rights litigation against New York City and District Attorney Cyrus Vance, Jr. The Court’s denial would be more disappointing had the strong possibility of being granted Cert not been a major factor pushing Governor Cuomo to sign A5944 just a couple weeks ago, repealing the state’s gravity knife ban.
A5944 enacted critical criminal justice reform to end the arrests of persons carrying common folding knives in New York City on gravity knife charges. As long as they abide by NYC’s minimal restrictions, folks should be able to carry their common tools in the City now without fear (excepting possibly in the subways and buses – SEE BELOW). That is a HUGE win in our long-running fight for justice.
Our determined, two-pronged strategy proved successful against the largest city in America. They won the battle in court in the end, but they lost the war because Knife Rights’ bottom-line aim of stopping the arrests and prosecutions in New York City has been achieved.
When we started this litigation effort in 2010, the odds of a legislative solution were about zero…or less. That didn’t stop Knife Rights from joining with Assemblymember Dan Quart to pursue a legislative solution. For a number of years we were stymied in Albany. In 2016 and 2017 bills were passed overwhelmingly with Quart’s leadership, but Cuomo vetoed them, even as he called the entire mess “absurd.” Despite how futile it may have seemed at times, we stood strong with Quart and Senate sponsor Sen. Diane Savino and kept pursuing a legislative solution. At the same time we continued to pursue our case. We never gave up, we never lost heart.
In the end, Knife Rights’ perseverance, persistence, and dogged determination won out. All the naysayers urging us to abandon the effort and leave New Yorkers to their diminished knife freedom were wrong. That’s how Knife Rights gets it done for knife owners in America. Our record of 31 bills repealing knife bans enacted in 22 states in 9 years is testament to that.
We always knew this case might end up at SCOTUS and we always knew it would be long odds if it did. They get about 10,000 petitions annually. They grant Cert in about 100. Precious few of those petitions themselves are so threatening to the opponents that they take action to attempt to moot the case, handing a win to their opponents. That’s exactly what happened here.
Despite the denial, ultimately this is HUGE win for freedom. A weaker case, unsupported by strong amicus briefs, would have never led to the victory we enjoyed!
Knife Rights owes a tremendous debt of gratitude to our principle attorney in this case, Dan Schmutter of Hartman & Winnicki, P.C., as well as the three amici; The Legal Aid Society led by Martin LaFalce, the Emory Law School Supreme Court Advocacy Program whose student members were led by Professor Sarah M. Shalf, and the Law Professors, led by Professor Gideon Yaffe, and written by Erik S. Jaffe of Schaerr Jaffe LLP with Co-Counsels Ilya Shapiro and Clark Neily of the CATO Institute and building on the prior amicus brief in the case by Douglas M. Garrou, of Hunton Andrews Kurth LLP.
It was the strength of these efforts that helped persuade Gov. Cuomo to support a critical criminal justice reform bill, after two prior vetoes, and sign A5944. He could have simply allowed it to become law, but he signed it, which added emphasis to his clear intent to see the arrests and prosecutions stopped.
Moreover, 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.”
“…the NYPD does not intend to use the wrist-flick test in enforcing the MTA regulations. Counsel for respondents have been informed by the NYPD, and have been authorized to inform the Court, that the NYPD determined after repeal of the gravity-knife statute that New York City police officers will no longer be trained on, or authorized to use, the wrist-flick test to identify an illegal gravity knife. The NYPD will thus enforce the prohibition of weapons or other dangerous instruments on public transit under t he MTA regulations without reference to whether the weapon constitutes a “gravity knife” as defined under N.Y. Penal Law § 265.00(5) and without reference to the wrist-flick test.”
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.
Our victory in ending the arrests and prosecutions in NYC could never have happened without our plaintiffs. John Copeland, Pedro Perez, and Carol Walsh (Native Leather) were courageous in putting themselves out there on behalf of all New Yorkers and sticking with us for 8 long years. We are sincerely grateful for their willingness to make this sacrifice and being the face of the over 70,000 victims of this terrible enforcement scheme.
We hope that this will stop NYPD’s and DA Vance’s blatant discrimination against people of color that was evident in this perverse enforcement effort. Unfortunately, we are cynical enough to be concerned that NYPD and Vance will come up with some other constitutionally questionable scheme to continue to do so.
So, in summary, we are very pleased that when all is said and done, we won this nearly decade-long fight. None of this would have been possible without the generous support of many of you who are reading this, support for which we are so very grateful.
Know that your stand for freedom means that after over 70,000 arrests and prosecutions, including sending innocent people away for years on bump-up felony convictions for carrying a pocketknife, millions of knife carriers no longer have to fear arrest for carrying a common tool. We all have a lot for which can be proud in this effort. We could never have done this without your support.
Meanwhile, the fight continues because All Knives (and Knife Owners) Matter™!
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