Second Circuit Grants Standing to Challenge NY's Criminalization of "Gravity Knives"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A gravity knife is “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device,” according to New York Penal Law §265.00 (5).  It is clear that having one is criminal possession of a weapon in the fourth degree, a misdemeanor punishable by no more than one year in prison.  It is less clear, at least according to the plaintiffs in Knife Rights, Inc. v. Vance, exactly what a gravity knife is: what if a person possesses a "common folding knife" that he is unable to open with a "wrist flick," but that someone else (presumably more talented) can open with a "wrist flick."? 

The Second Circuit's opinion in Knife Rights, Inc. v. Vance, however, is concerned not with the due process challenge to the New York law, but the Article III standing of the plaintiffs seeking to challenge it. 

circa 1613 via

Almost two years after the district judge's opinion dismissing all plaintiffs, the Second Circuit has affirmed the lack of standing of the organizational plaintiffs, Knife Rights and Knife Rights Foundation, but reversed as to the individual plaintiffs, Copeland and Perez, as well as Native Leather, a retail knife store.

In applying the well-established test for Article III standing - - -(1)  ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood that the injury ‘will be redressed by a favorable decision.’ - - - the Second Circuit disagreed with the district judge that the plaintiffs had not established an injury in fact. 

Indeed, the three individual plaintiffs had been prosecuted under the statute.  Copeland and Perez, an artist and an art dealer, both carry knives for their work.  Perez was stopped by law enforcement in 2010 in Manhattan for a

metal clip protruding from his pocket. Inquiry revealed the clip to be part of a Gerber brand common folding knife that Perez had purchased approximately two years earlier at Tent & Trail, an outdoor supply store in Manhattan. Plaintiffs assert that the charging officers were unable themselves to flick open Perez’s knife, but based on the possibility that someone could do so, they issued Perez a desk appearance ticket charging him with unlawful possession of a gravity knife.

Copeland was similarly stopped in 2010, but although he had previously shown his knife to NYC police officers to inquire about the legality of its possession and those officers were "unable to flick open the knife and so returned it to Copeland, advising that its possession was legal," when he was stopped, the officers were "able to open the knife by “grasping the knife’s handle and forcefully ‘flicking’ the knife body downwards” and, thus, issued Copeland a desk appearance ticket for violating the statute.

As to the store, Native Leather, it had entered into a deferred prosecution agreement with District Attorney Vance, which included the payment of fines and a "compliance program" to stop selling "gravity knives."

The Second Circuit easily found that the plaintiffs' alleged an imminent threat of prosecution.  The court rightly distinguished the controversial case of City of Los Angeles v. Lyons (1983) involving the police practice of choke-holds, by noting that the plaintiffs here seek to engage in the very conduct that is being subjected to criminalization.  The court denied the organization's standing by concluding that its monetary injury incurred by supporting persons prosecuted under the statute would not be adequately redressed by the injunctive relief sought in the complaint.  (The district court had denied leave to amend, which the Second Circuit affirmed).

The plaintiffs ability to move forward with the merits of their challenge to the New York statute criminalizing specific - - - or as alleged, not sufficiently specific - - - knives seems long overdue.