As expected, shortly after NY Governor Cuomo signed A5944 into law repealing NY’s gravity knife bans, New York City and DA Vance submitted a letter to the U.S. Supreme Court claiming that the new law mooted the case. They claim that the new law removing the gravity knife bans means that our case is no longer relevant and therefore should not be considered by the Court.
As previously noted, a prime motivation for Cuomo signing the bill was to avoid the possibility of losing in our case on an issue that would negatively affect his and other politicians’ efforts to continue their unconstitutional actions by eliminating a common means by which the Second Circuit avoids ruling on the actual merits of cases.
Plaintiffs have submitted a brief in response that details exactly why we believe case is not moot. As previously noted, but about which the letter was conspicuously silent, NY Mayor de Blasio’s New York Police Department has clearly indicated that they intend to continue to enforce a ban on gravity knives in the subways relying on an old Metropolitan Transportation Authority code.
They will do so using the same unconstitutionally vague “wrist flick” test applied to common folding knives that is the critical vagueness element of the case. For the over 5 million daily riders of the subway and nearly 2 million daily bus riders, nothing has changed except the degree of punishment to which they may be subject, but still up to 30 days in jail in some cases.
In their “mootness brief” reply to our brief 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.
Moreover, despite the new law, people, including retailer Plaintiff Native Leather, may still be prosecuted for conduct that would have been illegal under the old law, such as selling a knife that fails the “wrist flick” test, prior to the new law going into effect and going back two years. So they remain in jeopardy of serious criminal charges being brought against them.
An excellent summation of the entire case and the vagueness issue central to this case at the Supreme Court has been published by legal scholar David Kopel: https://reason.com/2019/06/10/knife-ban-and-vagueness-case-at-supreme-court-conference
The Supreme Court is scheduled to take up the case in conference this coming Thursday, 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 will post the results of the conference.
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