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Copeland v. Vance

United States District Court, S.D. New York

January 27, 2017

JOHN COPELAND, PEDRO PEREZ, AND NATIVE LEATHER, LTD., Plaintiffs,
v.
CYRUS VANCE, JR., in his Official Capacity as the New York County District Attorney, and CITY OF NEW YORK, Defendants.

          OPINION & ORDER

          KATHERINE B. FORREST, District Judge

         Plaintiffs John Copeland, Pedro Perez, and Native Leather, Inc. (“Native Leather”) assert an as-applied constitutional challenge to the validity of New York Penal Law §§ 265.00(5) and 265.01(1), which criminalize the possession of gravity knives (the “Gravity Knife Law” or “Gravity Knife Statute”). (See Amended Complaint ¶¶ 59-60, ECF No. 61.) The Gravity Knife Statute defines a gravity knife as “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.” N.Y. Penal Law § 265.00(5). Defendants employ a functional test - referenced as the “Wrist-Flick test” - to determine whether a knife falls within the prohibitions of the Gravity Knife Law. Under the New York Penal Law, a person who possesses a gravity knife is “guilty of criminal possession of a weapon in the fourth degree.” N.Y. Penal Law § 265.01(1).

         Plaintiffs contend that the definition of a gravity knife in the Gravity Knife Statute, as measured by the Wrist-Flick test, is unconstitutionally vague in violation of the Fourteenth Amendment. Specifically, plaintiffs argue that the Gravity Knife Statute is unconstitutionally vague as applied to “Common Folding Knives, ” which plaintiffs define as “folding pocket knives that are designed to resist opening from the closed position.” (Amended Complaint ¶ 1.)

         The core of plaintiffs' challenge is that enforcement of the Gravity Knife Statute through use of the Wrist-Flick test prevents an individual from ever knowing whether a Common Folding Knife that they possess (or would like to possess) is an illegal gravity knife. This is so, according to plaintiffs, primarily because the Wrist-Flick test is inherently subjective and indeterminate in that outcomes of the test necessarily reflect personal characteristics of the tester such as skill and dexterity. In support of their position, plaintiffs proffer various hypotheticals. For example, plaintiffs argue that “[a] person's ability to flick open a knife will vary based on degree of tiredness, injury, etc. . . . Suppose a person has a blister or cut on his strong hand, or has injured his hand or arm. That person will be entirely unable to perform the Wrist Flick [t]est, or his ability will be diminished.” Plaintiffs likewise argue that someone might be arrested for possession of a gravity knife if they encounter a strong and well rested police officer, whereas they might not be arrested if they encountered a weak and tired officer. Based on these and other hypotheticals, plaintiffs conclude that application of the Gravity Knife Law to Common Folding Knives is void for vagueness under the Fourteenth Amendment because no one can determine with any reasonable degree of certainty which Common Folding Knives are legal to possess and/or sell. Plaintiffs assert that the Gravity Knife Law ought to prohibit only those knives that can open by the force of gravity alone, using as their prototypical example “German Paratrooper Knives.”

         After careful review and consideration, the Court determines that plaintiffs' as-applied vagueness challenge fails and judgment must be entered for defendants. In reaching this determination, the Court hews closely to the facts relating to the particular plaintiffs now before the Court. As to these plaintiffs, the statute provided sufficient notice that their conduct was prohibited. With regard to plaintiffs' claims of future harm due to alleged vagueness inherent in the Wrist-Flick test, the Court finds that none of the plaintiffs has demonstrated that the many hypotheticals that the parties have so vigorously debated is in fact reasonably likely to occur to him or her. Furthermore, the Court concludes that the Gravity Knife Law provides sufficiently clear standards for law enforcement, and that in any event, plaintiffs' conduct fell within the core of the statute's prohibitions.

         I. PROCEDURAL HISTORY

         This case was initially filed on June 9, 2011. After a trip to the Second Circuit and back, [1] the parties conducted discovery and proceeded to trial. The parties agreed to a trial proceeding that was largely on the papers. Plaintiffs presented affirmative evidence in the form of written submissions. Specifically, plaintiffs presented declarations from each of plaintiffs John Copeland, Pedro Perez, and Carol Walsh (for Native Leather); declarations from experts Bruce Voyles and Paul Tsujimoto; and a declaration from Douglas S. Ritter. Defendants also presented evidence in the form of written submissions. Defendants presented declarations from Assistant District Attorney Dan Rather and the following members of the New York Police Department: Sergeant Tomas Acosta, Lieutenant Daniel Albano, Sergeant Noel Gutierrez, Detective Ioannis Kyrkos, and Lieutenant Edward Luke. The Court also received deposition designations for Captain Michael Tighe, Lieutenant Albano, Sergeant Acosta, Assistant D.A. Rather, Walsh, and Tsujimoto.[2]

         In addition to receiving written submissions, the Court held a live evidentiary hearing on June 16, 2016, which included a presentation by Douglas Ritter[3] (subject to cross-examination) and a cross-examination of Assistant District Attorney Rather. Both sides also presented closing arguments.

         II. FINDINGS OF FACT[4]

         A. Statutory Framework

         1. New York Penal Law §§ 265.00(5) and 265.01(1)

         Under the New York Penal Law, “[a] person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any . . . gravity knife.” N.Y. Penal Law § 265.01(1). Criminal possession of a weapon in the fourth degree is a class A misdemeanor. N.Y. Penal Law § 265.01. The statute defines a gravity knife as “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.” N.Y. Penal Law § 265.00(5) (together with § 265.01(1), the “Gravity Knife Law” or “Gravity Knife Statute”).[5] Thus, the Gravity Knife Statute consists of two separate requirements: (1) a knife must open by force of gravity or the application of centrifugal force, and (2) once the blade of the knife is released, it must lock in place by means of a button, spring, lever or other device. See N.Y. Penal Law § 256.00(5).

         To meet the first statutory requirement of the Gravity Knife Law, it is clear that a knife need not open by both gravity and the application of centrifugal force; if a knife opens by centrifugal force alone and the blade locks in place once released, the knife is an illegal gravity knife. See U.S. Customs Serv., Region II v. Fed. Labor Relations Auth., 739 F.2d 829, 832 (2d Cir. 1984) (“When ‘or' is inserted between two clauses, the clauses are treated disjunctively rather than conjunctively.”); see also Mizrahi v. Gonzales, 492 F.3d 156, 164 (2d Cir. 2007) (“It is a standard canon of statutory construction that words separated by the disjunctive [‘or'] are intended to convey different meanings unless the context indicates otherwise.”). As described below, the Court finds that the Wrist-Flick test measures whether a knife opens by centrifugal force.

         2. The “Wrist-Flick test”

         There is no dispute that the definition of a gravity knife, as drafted in the statute, is a functional one. To determine whether a particular knife meets that statutory definition, defendants utilize the “Wrist-Flick test.” The Wrist-Flick test is just what its name suggests: using the force of a one-handed flick-of-the-wrist to determine whether a knife will open from a closed position. Both the statutory text[6]and existing New York precedent make clear that the Wrist-Flick test measures whether a knife opens by centrifugal force.

         Centrifugal force is defined as “the apparent force that is felt by an object moving in a curved path that acts outwardly away from the center of rotation.” Centrifugal force, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/centrifugal%20force (last visited Dec. 22, 2016). At trial, plaintiffs' counsel and Douglas Ritter both repeatedly sought to demonstrate what they purported was the Wrist-Flick test.[7] The New York Court of Appeals recently confirmed that a knife that opens via the Wrist-Flick test meets the statutory definition of a gravity knife.[8] See People v. Sans, 26 N.Y.3d 13, 17, 41 N.E.3d 333 (2015) (statement in criminal complaint that the defendant's knife opened “with centrifugal force” conveyed that the officer “flicked the knife open with his wrist”); see also People v. Herbin, 927 N.Y.S.2d 54, 55-56 (1st Dep't 2011) (statutory definition of a gravity knife satisfied where “officers release the blade simply by flicking the knife with their wrists”); People v. Neal, 913 N.Y.S.2d 192, 194 (1st Dep't 2010) (operability of knife conformed to statute where officer opened the knife “by centrifugal force, created by flicking his wrist”); Johnson v. New York, 1988 U.S. Dist. LEXIS 9397, at *2 n.1. (S.D.N.Y. Aug. 25, 1988) (“A ‘gravity knife' is one in which the blade is exposed by a simple flick of the wrist in a downward motion, locking the blade into position.”).

         As the statutory text and above analysis illustrates, New York Penal Law § 265.00(5) employs a functional test to identify a gravity knife. “The intended use or design of the knife by its manufacturer is not an element of the crime and is irrelevant to the issue of whether the knife is a gravity knife.” People v. Fana, 2009 N.Y. Misc. LEXIS 956, at *9 (N.Y. County Crim. Ct. 2009). By contrast, other Penal Law provisions incorporate the design of a weapon into their definitions. See, e.g., Penal Law §265.00(11) (“‘Rifle' means a weapon designed . . .”); §265.00(12) (“‘Shotgun' means a weapon designed . . .”); §265.00(14) (“‘Chuka stick' means a weapon designed . . .”); §265.00(15-a) (“‘Electric dart gun' means any device designed . . .”). Furthermore, under the Gravity Knife Statute, a gravity knife is a per se illegal weapon: if a person possesses one, whether or not he knows that it is a gravity knife, he is in violation of §265.01(1). See N.Y. Penal Law § 256.00(5).

         Throughout this case, plaintiffs have maintained that the Wrist-Flick test inappropriately expands the boundaries of the Gravity Knife Statute and that, in fact, gravity knives are and should be limited to a very specific subset of knives - those that are capable of opening solely as a result of gravity, that is, holding the knife upside down. According to plaintiffs, “Common Folding Knives” - which plaintiffs define as “folding pocket knives that are designed to resist opening from the closed position” - are not gravity knives.[9] In support of this argument, plaintiffs point to the legislative history of the Gravity Knife Statute[10] and have proffered expert opinions from Paul Tsujimoto, who is an expert in knife design, [11] and Bruce Voyles, who has experience in the history of knives.[12] Plaintiffs have also offered testimony from Douglas Ritter, who is the founder and Chairman of Knife Rights, Inc., a former plaintiff in this case.

         Tsujimoto and Voyles purport to offer factual, not legal opinions. Yet, their opinions are primarily directed at how the Gravity Knife Statute should be interpreted in order to implement what they describe as the historical origins of gravity knives and the historical usage of the term “gravity knives.” Before proceeding further, the Court therefore notes that it could largely ignore Tsujimoto and Voyles's opinions on relevancy grounds alone, as the legal interpretation of the Gravity Knife Statute is beyond the proper scope of their expertise. The Court nevertheless provides an overview of Tsujimoto and Voyles's opinions, as plaintiffs rely heavily upon them. These opinions do not alter the Court's conclusion that the Wrist-Flick test appropriately applies centrifugal force under the Gravity Knife Statute to determine whether Common Folding Knives are illegal gravity knives.

         Tsujimoto opines that the Wrist-Flick Test “is not a true test for centrifugal force” but rather involves “a misinterpretation of the term ‘centrifugal force.'” (Tsujimoto Decl. ¶¶ 44, 50.) Tsujimoto does not deny that the Wrist-Flick test employs the use of centrifugal force; he concedes that centrifugal force is “imparted during the initial arm and wrist movement.” (Id. ¶ 50.) Rather, Tsujimoto opines that “[i]t is th[e] sudden stopping of the blade and the inertia of the blade continuing to move, not centrifugal force, which opens the blade.” (Id. ¶ 51) According to Tsujimoto, the statute covers only knives that open without “the sudden stopping of the arm and wrist” that Tsujimoto alleges is involved in the “second part of the [Wrist-Flick test].” (Id.)

         Tsujimoto concludes that the statute covers only knives similar to German Paratrooper Knives. (Tsujimoto Decl. ¶ 26.) Tsujimoto states that this is “the understanding that knife companies have had since the 1950's.” (Id. ¶¶ 11-26, 52.) Voyles reaches a similar conclusion.[13] (Voyles Decl. ¶¶ 8-10, 16.) Voyles bases his opinion on his “more than 35 years in the cutlery trade” and his review of historical references to gravity knives. (Id. ¶ 10, 15-24, 37-40.)

         Tsujimoto explains that, by design, the German Paratrooper Knife easily slides out from the handle based on gravity alone - that is, holding it upside down causes the knife to slide out. (Tsujimoto Decl. ¶ 26; see also Voyles Decl. ¶ 16.) Tsujimoto further explains that a German Paratrooper Knife also easily slides out from the handle if one were to hold the knife handle pointing outward, away from their body, and rotate the arm around the shoulder, such as in a chair seat so that the individual spins around on the chair frame (what Tsujimoto describes as the “Swivel Chair Test”). (Tsujimoto Decl. ¶¶ 22, 51.) Tsujimoto opines that the type of centrifugal force intended by the Gravity Knife Statute must be only that which is necessary to open a German Paratrooper Knife via the Swivel Chair Test. (Id. ¶ 51.) Voyles also reaches a similar conclusion. (See Voyles Decl. ¶ 8-10.) The Court notes that despite this testimony from Tsujimoto and Voyles, plaintiffs did not argue that the Gravity Knife Statute is unconstitutionally vague because it does not involve the application of centrifugal force to open a knife. In fact, plaintiffs forfeited any such argument. (Plaintiffs' Reply/Rebuttal Trial Brief, Objections, and Opposition to Motion to Strike/Motion in Limine (“Reply Mem.”), ECF No. 153, at 12.)[14] Furthermore, how a German Paratrooper Knife functions is a point that defendants do not contest but assert is irrelevant. The Court agrees.

         Relatedly, plaintiffs spent a fair amount of time on evidence regarding “bias” as it relates to the blade of a knife: “bias toward opening” and its opposite, “bias toward closure.” Tsujimoto explains that switchblades and German Paratrooper Knives are examples of knives with a “bias toward opening.” (Tsujimoto Decl. ¶ 28; see also Voyles Decl. ¶ 14; Ritter Decl. ¶ 15.) In contrast, according to Tsujimoto, “folding knives” (such as slip joints, lock backs, and liner locks) have a “bias toward closure.” (Tsujimoto Decl. ¶ 29.) Different types of locking mechanisms - including liner locks and lock backs - correspond with differences in resistance to opening. (Id. ¶¶ 35, 46(1).)[15] Knives which have a bias toward closure feature blades that are held in the closed position by a spring or other mechanism, and the blade will remain in the closed position until the blade is manipulated to overcome the closing tension. (Id. ¶ 34.)

         Plaintiffs have submitted evidence that differences in the manufacturing process can result in differences between how knives of the same brand and model open. (Tsujimoto Decl. ¶46(2).) Defendants did not contest this evidence. (See Rather Decl. ¶23.) It is also clear that use of a knife over time may create differences in how the same knife opens at one point in time versus another. (Tsujimoto Decl. ¶46(3).) Loosening in joints and screws, resulting from, inter alia, use over time, may result in a knife opening by centrifugal force with a wrist-flick when it had not previously. By the same token, a knife that once opened with application of the Wrist-Flick test may not later. For example, if the knife has been stored continuously in a cold or arid location, or the knife has been exposed to moisture causing corrosion on the blade or in the handle. (Rather Decl. ¶24.)

         Tsujimoto concludes that folding knives with a “bias toward closure” will not open with what he describes as “centrifugal force” (i.e., via the Swivel Chair Test), and therefore, in his opinion, should not meet the statutory definition of a gravity knife. (Id. ¶¶ 34, 49.) These opinions are here, again, largely irrelevant to the issues before the Court. Despite plaintiffs' vigorous arguments as to how they would like to reinterpret the Gravity Knife Statute, [16] basic statutory interpretation is a legal, not factual, question. The application of centrifugal force through the Wrist-Flick test may result in the opening of a knife with bias toward opening or closure. While the knife design industry may differentiate between knives just as Tsujimoto and Voyles state, those opinions do not mean that the legal definition of a gravity knife under the Gravity Knife Statute tracks those views.

         3. Enforcement

         While being trained at the Police Academy, officers of the New York Police Department (“NYPD”) are instructed on the Penal Law definition of a gravity knife and the charges to be imposed for its possession. (Acosta Dep. at 28:06-30:09; Gutierrez Decl. ¶15; Kyrkos Decl. ¶14.) The law enforcement personnel involved in testing the knives possessed by plaintiffs here had such training. The evidence at trial made it clear that the same Wrist-Flick test has been used by the NYPD to identify gravity knives since the statute's effective date. The evidence supports consistent, continued application of this historical practice under the current New York District Attorney, Cyrus Vance, Jr. New police officers are trained to use the same test that officers were trained to use decades ago. Moreover, there is no evidence that the manner of conducting the Wrist-Flick test is, in fact, different from officer to officer.[17] Finally, there is no evidence in the record that two different police officers - each applying the Wrist-Flick test to a knife (either plaintiffs' or any other person's) on the same occasion - had different outcomes.[18] In other words, while plaintiffs have described hypothetical scenarios that are possible, they did not introduce sufficient evidence for the Court to find that any of the scenarios are probable as to plaintiffs or anyone else. There was no evidence, for instance, that a strong or well rested officer was once able to open a knife with the Wrist-Flick test while a weaker or tired officer was not; there was likewise no evidence that dexterity resulted in different outcomes.[19] In short, the evidence supports a known, consistent functional test for determining whether a knife fits the definition of a “gravity knife” and does not support inconsistent outcomes under that test. Prosecutions charging gravity knife possession constitute a very small fraction of the total number of misdemeanor prosecutions commenced in New York County each year. (Rather Decl. ¶¶ 33-34.) The record fully supports that arrests and prosecutions for possession of a gravity knife only occur once a knife has opened in response to the Wrist-Flick test.

         Prosecutions are not - and were not with regard to plaintiffs here - initiated based on a theoretical possibility that a knife could, might, or should open in response to a wrist-flick; they are commenced only if and when a knife does. (Rather Decl. ¶25.)

         B. The Plaintiffs

         1. Native Leather

         Native Leather is a corporation organized under New York law that operates a retail store (with the same name) in Manhattan. (Walsh Decl. ¶2.) The retail store sells mostly men's accessories and leather goods, including, inter alia, folding pocket knives. (Id.) Carol ...


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