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Copeland v. Vance

United States Court of Appeals, Second Circuit

June 22, 2018

John Copeland, Pedro Perez, Native Leather Ltd., Plaintiffs-Appellants,
v.
Cyrus R. Vance, Jr., in his Official Capacity as the New York County District Attorney, City of New York, Defendants-Appellees, Knife Rights, Inc., Knife Rights Foundation, Inc., Plaintiffs, Barbara Underwood, in her Official Capacity as Attorney General of the State of New York, Defendant

          Argued: January 18, 2018

         Two individuals and a retailer appeal from a judgment entered against them following a bench trial in the United States District Court for the Southern District of New York (Forrest, J.). They claim that New York's ban on gravity knives is unconstitutionally vague as applied to common folding knives because New York's functional method of identifying illegal knives is inherently indeterminate. We conclude that this is a facial challenge to the gravity knife law and that the challengers have the burden to show that the statute is invalid in all respects. Because the challengers did not show that the statute was unconstitutionally enforced against the retailer in a prior proceeding, we reject their vagueness claim. Accordingly, the judgment of the district court is AFFIRMED.

          Daniel L. Schmutter, Hartman & Winnicki, P.C., Ridgewood, NJ, for Plaintiffs-Appellants.

          Elizabeth N. Krasnow, Assistant District Attorney (Patricia J. Bailey, Assistant District Attorney, on the brief), New York County District Attorney's Office, New York, NY, for Defendant-Appellee Cyrus R. Vance, Jr.

          Claude S. Platton, Assistant Corporation Counsel (Richard Dearing, Amanda Sue Nichols, Assistant Corporation Counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee City of New York.

          William Gibney, Director, Special Litigation Unit, Criminal Defense Practice, Legal Aid Society, New York, NY, for Amicus Curiae Legal Aid Society, in support of Plaintiffs-Appellants.

          Douglas M. Garrou, Hunton & Williams LLP, Washington, DC, for Amici Curiae Profs. Gideon Yaffe, Brett Dignam, Jeffrey Fagan, Eugene Fidell, Stephen Garvey, Heidi Hurd, Douglas Husak, Issa Kohler-Hausmann, Tracy Meares, Gabriel Mendlow, Michael Moore, Stephen Morse, Martha Rayner, Scott Shapiro, Kenneth Simons, James Whitman, and Steven Zeidman, in support of Plaintiffs-Appellants.

          Before Katzmann, Chief Judge, Kearse and Pooler, Circuit Judges.

          Katzmann, Chief Judge

         Plaintiffs-appellants John Copeland, Pedro Perez, and Native Leather, Ltd. (collectively, "plaintiffs") appeal from a judgment against them following a bench trial in the United States District Court for the Southern District of New York (Forrest, J.). Plaintiffs claim that New York's ban on gravity knives is void for vagueness under the Due Process Clause of the Fourteenth Amendment as applied to "[k]nives that are designed to resist opening from their folded and closed position," or common folding knives. J. App'x 51. New York law defines a gravity knife as a knife that can be opened to a locked position with a one- handed flick of the wrist. Plaintiffs mainly argue that the statute cannot lawfully be applied to common folding knives because the wrist-flick test is so indeterminate that ordinary people cannot reliably identify legal knives.

          Key to deciding this case is determining whether the plaintiffs' vagueness claim should be understood as an as-applied challenge or a facial challenge. Because plaintiffs' claim would, if successful, effectively preclude all enforcement of the statute, and because plaintiffs sought to prove their claim chiefly with hypothetical examples of unfair prosecutions that are divorced from their individual facts and circumstances, we deem it a facial challenge. Plaintiffs therefore must show that the gravity knife law is invalid in all applications, including as it was enforced against them in three prior proceedings. Under this strict standard, the challengers' claim will fail if the gravity knife law was constitutionally applied to any one of the challengers. We conclude that Native Leather did not carry its burden. Accordingly, we affirm the judgment of the district court.

         Background

         The State of New York prohibits the possession of a "gravity knife," which is defined 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 §§ 265.01(1), 265.00(5) ("gravity knife law"). The law, originally passed in 1958, remains unchanged today.[1] The gravity knife law employs a functional, rather than design-based, definition. A knife is a gravity knife if it operates as one-the blade must "release[] from the handle" by gravity or by "the application of centrifugal force" and then "lock[] in place"-even if the manufacturer did not design it to do so. Id. § 265.00(5); see People v. Neal, 913 N.Y.S.2d 192, 194 (1st Dep't 2010) (finding proof sufficient where "[t]he officer demonstrated in court that he could open the knife by using centrifugal force, created by flicking his wrist, and the blade automatically locked in place after being released"). Some other banned weapons are defined by their design. See, e.g., N.Y. Penal Law § 265.00(15-b) ("'Kung Fu star' means a disc-like object with sharpened points on the circumference thereof and is designed for use primarily as a weapon to be thrown.").

         Knowledge that a knife responds to the wrist-flick test is not an element of this crime. See People v. Parrilla, 27 N.Y.3d 400, 402 (2016) ("[T]he mens rea prescribed by the legislature for criminal possession of a gravity knife simply requires a defendant's knowing possession of a knife, not knowledge that the knife meets the statutory definition of a gravity knife."). Possessing a gravity knife is a misdemeanor offense, but it can be charged as a felony if the offender has previously been convicted of a crime. See id. at 404 & n.2.

         To determine whether a knife is a gravity knife, police officers and prosecutors "us[e] the force of a one-handed flick-of-the-wrist to determine whether a knife will open from a closed position," a method known as the wrist- flick test. Copeland v. Vance, 230 F.Supp.3d 232, 238 (S.D.N.Y. 2017). Officers are trained in the wrist-flick test at the Police Academy, and each of the officers involved in the events giving rise to this case received this training. "[A]rrests and prosecutions for possession of a gravity knife only occur once a knife has opened in response to the Wrist-Flick test." Id. at 242. "[T]he same Wrist-Flick test has been used by the NYPD to identify gravity knives since the statute's effective date" and continuing to the present. Id. The district court found that "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." Id.

          John Copeland is an artist who lives in Manhattan. In the fall of 2009, Copeland bought a folding knife at a Manhattan retailer and asked two police officers whether the knife was legal. When neither officer could open the knife with the wrist-flick test, they told him it was. Copeland regularly used the knife over the next year. In October 2010, two police officers stopped Copeland when they saw the knife clipped to his pocket. One of the officers applied the wrist- flick test, and the knife fully opened to a locked position on the first attempt. Copeland was arrested and charged with violating the gravity knife law. He later agreed to an adjournment in contemplation of dismissal of the charge.

         Pedro Perez is an art dealer who also lives in Manhattan. In April 2008, Perez bought a folding knife from a Manhattan retailer, and he regularly used the knife to cut canvas and open packaging. On April 15, 2010, three police officers stopped Perez in a subway station when they observed the knife clipped to his pants pocket. One of the officers applied the wrist-flick test, and the knife fully opened to a locked position on the first attempt. Perez was arrested and charged with violating the gravity knife law. Perez did not contest the charge, accepted an adjournment in contemplation of dismissal, and agreed to perform seven days of community service.

          Native Leather, Ltd. is a Manhattan-based retailer that sells folding knives. In 2010, investigators from the office of the New York County District Attorney ("D.A.") determined that some of Native Leather's knives could be opened with the wrist-flick test and issued a subpoena requiring Native Leather to produce any gravity knives in its inventory. Carol Walsh, the owner and president of Native Leather, produced over 300 knives that she thought were gravity knives. The D.A.'s office tested each knife, retained any that could be opened with the wrist-flick test at least one time in ten attempts, and returned the balance. On June 15, 2010, Native Leather entered a deferred prosecution agreement under which it agreed to test its inventory for gravity knives and to submit to inspections by an independent monitor. Walsh began testing Native Leather's knives in September 2010 and would not offer a knife for sale if she could flick it open or if she believed a "stocky man" would be able to. Id. at 244 (brackets omitted).

         On September 24, 2012, Copeland, Perez, and Native Leather, along with Knife Rights, Inc. and Knife Rights Foundation, Inc., filed an amended complaint against defendants-appellees D.A. Cyrus R. Vance, Jr. and the City of New York challenging the gravity knife law as void for vagueness. Plaintiffs divide gravity knives into two categories that are not recognized by the statute or case law, but are, they maintain, recognized by the knife industry: the "true gravity knife" and the "common folding knife." True gravity knives, in their view, can be opened by the force of gravity alone (although they also respond to the wrist-flick test). As the blade will slide freely out of the handle, this knife is said to lack a bias toward closure. Plaintiffs' paradigmatic true gravity knife is the formidable-sounding "German paratrooper knife." True gravity knives appear to be quite rare. Plaintiffs assert that no domestic manufacturer produces them, and multiple policer officers with significant experience enforcing the gravity knife law declared that they have never encountered one. Plaintiffs concede that true gravity knives can constitutionally be banned.

         Plaintiffs' vagueness challenge focuses instead on common folding knives, which, they explain, are knives that are designed to have a bias toward closure. These knives resist opening. They cannot be opened by gravity alone; some additional force must be applied. This category includes folding knives openly sold and owned by many law-abiding people. It also includes the knives plaintiffs carried and sold in 2010. The plaintiffs wish to carry (and, in Native Leather's case, sell) common folding knives again, but claim that they cannot determine which knives are legal. They seek a declaration that the gravity knife law is void for vagueness "as applied to Common Folding Knives" and an injunction restraining the defendants from enforcing the gravity knife law "as to Common Folding Knives." J. App'x 51-52.

         On September 25, 2013, the district court dismissed the complaint for lack of standing. We affirmed as to the knife advocacy organizations, but held that Copeland, Perez, and Native Leather have standing. Knife Rights, Inc. v. Vance, 802 F.3d 377, 379 (2d Cir. 2015). On remand, the district court conducted a bench trial and held an in-court knife demonstration. Following these proceedings, the district court, based on the findings of fact recounted above, rejected plaintiffs' vagueness claim. The district court concluded that the gravity knife law was constitutionally applied to Copeland, Perez, and Native Leather during the enforcement actions that took place in 2010 (the "2010 enforcement actions") and that it would continue to be constitutionally applied to them prospectively. The district court then concluded that, to the extent plaintiffs' claim could be understood as a facial attack on the gravity knife law, it was unsuccessful. This appeal followed.

          Discussion

         I. Standard of Review

         "On appeal from a bench trial, we review findings of fact for clear error and conclusions of law de novo." Fed. Hous. Fin. Agency for Fed. Nat'l Mortg. Ass'n v. Nomura Holding Am., Inc., 873 F.3d 85, 138 n.54 (2d Cir. 2017). "Under the clear error standard, factual findings by the district court will not be upset unless we are left with the definite and firm conviction that a mistake has been committed." Id. (brackets omitted) (quoting Henry v. Champlain Enters., Inc., 445 F.3d 610, 617 (2d Cir. 2006)).

         II. Classifying Plaintiffs' Vagueness Challenge

         The first issue on appeal is whether, as the district court held, plaintiffs have the burden to show that the gravity knife law was void for vagueness as applied to them in the 2010 enforcement actions. We conclude that they do.

         The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. A component of the Due Process Clause, "the void-for- vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). In any vagueness case, then, the challenger can prevail by showing that the statute either "fails to provide people of ordinary intelligence a reasonable opportunity to understand ...


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