United States Court of Appeals Second Circuit

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17-0474-cv United States Court of Appeals for the Second Circuit

JOHN COPELAND, PEDRO PEREZ, NATIVE LEATHER, LIMITED, Plaintiffs-Appellants, KNIFE RIGHTS, INC., KNIFE RIGHTS FOUNDATION, INC., Plaintiffs, – v. – CYRUS R. VANCE, JR., in his Official as the New York County District Attorney, CITY OF NEW YORK, Defendants-Appellees, ERIC T. SCHNEIDERMAN, in his Official Capacity as Attorney General of the State of New York, Defendant. –––––––––––––––––––––––––––––– ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF AND SPECIAL APPENDIX OF PLAINTIFFS-APPELLANTS

DANIEL L. SCHMUTTER HARTMAN & WINNICKI, P.C. Attorneys for Plaintiffs-Appellants 74 Passaic Street Ridgewood, New Jersey 07450 (201) 967-8040

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, Appellant Native Leather, Ltd. hereby certifies that it has no parent corporation and that there is no publicly held corporation that owns 10% or more of its stock.

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ...... i

TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... iv

JURISDICTIONAL STATEMENT ...... 1

STATEMENT OF ISSUES PRESENTED...... 1

STATEMENT OF THE CASE ...... 8

A. Introduction ...... 8

B. Switchblade Knives, Gravity Knives, Common Folding Knives ...... 9

C. The Statutory Framework ...... 14

D. The Parties ...... 18

E. Defendants’ Recent Enforcement of the Gravity Knife Law ...... 19

F. Inherent Variability and Indeterminacy of the Wrist Flick Test when Applied to Common Folding Knives...... 29

G. The Live Knife Demonstration Illustrates the Inherent Variability and Indeterminacy of the Wrist Flick Test when Applied to Common Folding Knives...... 34

H. Defendants’ Approach to the Functional Test/Wrist Flick Test ...... 38

1. The City ...... 38

2. The DA ...... 41

I. Defendants’ Admission before this Court on the Prior Appeal...... 43

J. Defendants’ Devastating Admission at Trial before the District Court...... 44

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SUMMARY OF THE ARGUMENT ...... 45

STANDARD OF REVIEW ...... 47

ARGUMENT ...... 48

I. The District Court Erred in Entering Judgment for Defendants because the Court Ignored the Essential Thrust of Plaintiffs’ Claim by Focusing Entirely on Past Events Rather than the Inability of Plaintiffs to Conform Their Future Conduct to the Law ...... 48

II. The District Court Erred in Entering Judgment for Defendants because the Court Ignored Critical Evidence in the Record Which Demonstrates that a Person Cannot Determine with any Reasonable Degree of Certainty which Common Folding Knives are Legal to Possess and/or Sell, and Thus Defendants’ Application of the Gravity Knife Law to Common Folding Knives is Unconstitutionally Vague ...... 52

CONCLUSION ...... 63

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TABLE OF AUTHORITIES

Cases

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984)...... 48

Carter v. McKoy, 2010 U.S. Dist. LEXIS 83246 (S.D.N.Y. 2010) ...... 17

Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) ...... 48

Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006) ...... 48

First Nat. Bank of Cincinnati v. Pepper, 547 F.2d 708 (2d. Cir. 1976) ...... 47

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ...... 49

Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015) ...... 1, 51

People v Neal, 913 N.Y.S.2d 192 (1st Dep’t 2010) ...... 16

People v. Brannon, 16 N.Y.3d 596 ...... 14

People v. Dreyden, 15 N.Y.3d 100 (2010) ...... 14, 61

People v. Herbin, 927 N.Y.S2d 54 (1st Dep’t 2011) ...... 16

People v. Trowells, Ind. No. 3015/2013 (N.Y. Sup. Ct. Bronx County July 11, 2014) ...... 58

United States v. Irizarry, 509 F. Supp. 2d 198 (E.D.N.Y. 2007) ...... 14, 15, 16, 58

Statutes

15 U.S.C. §1244(5) ...... 17

28 U.S.C. § 1291 ...... 1

28 U.S.C. § 1294 ...... 1

28 U.S.C. § 1331 ...... 1 42 U.S.C. § 1983 ...... 1, 9

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N.Y. Penal L. § 265.00 (5) ...... 8, 14, 18, 63

N.Y. Penal L. § 265.01 ...... 8, 14, 18, 63

1958 N.Y. Laws ch. 107, sec. 1, § 1896 ...... 14

Other Authorities

U.S. Const. Amend. XIV, § 1 ...... 48

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JURISDICTIONAL STATEMENT

This case was filed in the U.S. District Court, Southern District of New York

June 9, 2011. A3.1 The court had subject-matter jurisdiction pursuant to 28 U.S.C.

§ 1331, as it involves claims arising under 42 U.S.C. § 1983 and the Constitution.

On January 27, 2017, the court issued its opinion, entering final judgment on all claims. SPA1. Plaintiffs-Appellants filed a timely notice of appeal February 16,

2017. A1198. This Court has appellate jurisdiction under 28 U.S.C. §§ 1291 &

1294.

STATEMENT OF ISSUES PRESENTED

This is the second appeal in this litigation. Previously, the district court dismissed the lawsuit on standing. This Court reversed and remanded the matter for trial.2

The current appeal arises as a result of judgment below entered in favor of

Defendants after a trial on papers, supplemented by limited live testimony and a live demonstration ordered by the court of the functionality of various knives.

A1197. Plaintiffs bring this action as an as-applied Constitutional Fourteenth

Amendment vagueness challenge to the novel and unprecedented expansion of the

1 Citations to the Joint Appendix are designated “A__,” Citations to the Special Appendix are designated “SPA__.” 2 Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015). 1

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manner in which Defendants apply New York’s gravity knife law – a law which had been uncontroversial for its first 50 years. After decades of enforcing this law with clarity and predictability, Defendants now choose to treat nearly any ordinary folding knife as an illegal “gravity knife.” Regular, law-abiding, tradesmen

(among others) must now guess if the tools of their trade, used freely throughout the state, will result in their arrest and prosecution in New York City.

Under New York law there are three basic categories of knives:

A “switchblade knife,” which opens automatically upon the pressing of a button in the handle. These are not at issue here.

A “gravity knife,” which opens readily by the force of gravity or the application of centrifugal force.

A “pocket knife,” which is a folding knife that cannot readily be opened by gravity or centrifugal force. Pocket knives are widely and lawfully sold and possessed in New York and nationally.

Under the recently adopted practices of Defendants New York City (“City”) and the Manhattan District Attorney (“DA”), the latter two distinct categories, gravity knife and pocket knife have, in practice, collapsed into one category.

Defendants arrest and prosecute individuals and retailers for possessing/selling what should be deemed legal pocket knives, alleging them to be gravity knives based on a variable and indeterminate standard. There is no way for someone to

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determine which pocket knives are legal and which are not under Defendants’ unconstitutional approach.

Defendants now apply the gravity knife law to knives which have never previously been considered gravity knives anywhere. These knives, which (unlike traditional gravity knives) are designed to resist opening, are referred to herein as

“Common Folding Knives.” This resistance to opening is commonly referred to in the knife industry as “bias toward closure.” This is a safety feature present in all folding knives made and sold today (other than switchblade knives) by which the blade is held in the closed position by a mechanism which exerts tension on the blade. The blade remains in the closed position until the blade is manipulated by the hand to overcome the tension and moved to the open position. The amount of tension varies from knife to knife. Thus, the ease or difficulty in opening a

Common Folding Knife varies from knife to knife and from person to person.

True gravity knives lack bias toward closure. Only a manually operated lock keeps the blade inside the handle. Once the lock is released, the blade slides freely out and back into the handle merely by tilting the handle down or up, respectively. Because there is no tension on the blade, once the manual lock is released, true gravity knives open readily the same way for every person and every knife, every time.

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This fundamental difference in design and function is the key to the problem posed by Defendants’ unique approach to enforcement of the gravity knife law.

The DA and City are now taking a law that was originally intended to be applied to knives without bias toward closure and are applying it to knives that have varying amounts of resistance.

The statute contains language defining the term “gravity knife.” But according to Defendants, the only way a person can actually determine whether a knife is a prohibited gravity knife is through a functional test – sharply flicking or thrusting the knife downward with the wrist or arm to open the blade (the

“Functional Test” or “Wrist Flick Test”) – which is inherently variable, and indeterminate. Using that test, no one possessing a Common Folding Knife can ever know he possesses a legal pocket knife versus an illegal gravity knife, because the test results are highly dependent on the strength, dexterity, skill, and training of the individual employing the test, the particular specimen of knife, and other variable and uncertain characteristics.

Under the Wrist Flick Test, one particular knife could be classified as both permitted and prohibited, simultaneously, depending on who performs the test.

Even Defendants conceded this in their own devastatingly harmful testimony.

ADA Dan Rather testified that a person could enter a store, test a knife with the

Wrist flick Test, fail to open it twice, and validly conclude it is not a gravity knife.

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That same person could then purchase the knife, walk out of the store, and if two steps out the door he encountered a police officer who could flick the knife open, that same knife would suddenly be a gravity knife, subjecting the person to arrest and prosecution.

Plaintiffs John Copeland and Pedro Perez wish to possess Common Folding

Knives to use in their professions, and Plaintiff Native Leather, Ltd. (“Native

Leather”) wishes to sell Common Folding Knives, but they cannot determine which Common Folding Knives will not result in arrest and prosecution.

The Wrist Flick Test is unconstitutionally vague because: (1) there is no clear standard as to how a person is to actually perform the Wrist Flick Test; (2) there is no source a person can consult to learn the Wrist Flick Test; and (3) the

Wrist Flick Test is inherently indeterminate when applied to knives with a bias toward closure.

Despite the indeterminate nature of the Wrist Flick Test, the DA and the

City will arrest and/or prosecute a person for possession of a gravity knife not simply if that person, himself, can flick the knife open, but if anyone at any time can flick it open.

This entire case comes down to one simple question. How can a person draw the conclusion that a given folding knife can never be flicked open by

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anyone? No one can ever draw that conclusion, and therefore no one can ever know that he is in compliance with the gravity knife law.

Because no one can know how to conform his conduct to Defendants’ enforcement approach, Defendants’ application of the gravity knife law to

Common Folding Knives is unconstitutionally void for vagueness and must be permanently enjoined.

In deciding the case, the district court made several critical errors which led to its incorrect decision.

First, the court erroneously ignored the claim at the heart of the case that

Plaintiffs, and those like them, cannot conform their future conduct to the law. The court instead focused only on the prior arrests and threatened prosecutions of

Plaintiffs. The actual claim in this case is that, given the inherent unconstitutional vagueness of the Wrist Flick Test, Plaintiffs and anyone like them who wish to possess or sell a legal folding pocket knife in New York City, cannot know how to conform their future conduct to avoid arrest and prosecution.

Second, the court refused to credit or entirely ignored highly relevant and valuable testimony from several of Plaintiff witnesses, including Douglas Ritter,

Paul Tsujimoto, and Bruce Voyles, as well as the devastating admission on the stand of Rather that the same knife can simultaneously be legal and illegal

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depending on who is testing it. These witnesses provided information invaluable for understanding why the Wrist Flick Test is inherently indeterminate.

Third, the court ignored the live knife demonstration ordered by the court.

This demonstration illustrated the dramatic variation in the outcome of the Wrist

Flick Test from knife to knife and from person to person when applied to Common

Folding Knives.

The court essentially decided a case not before it and ignored Plaintiffs’ actual claim and proofs. These errors led the court to uphold a plainly unconstitutional law enforcement practice.

Accordingly, this case requires the Court to decide:

1. Whether the district court erred in finding that the New York Gravity

Knife Law is not void for vagueness as applied to Plaintiffs.

2. Whether the district court erred in ignoring certain evidence of

Plaintiffs and admissions by Defendants.

3. Whether the district court erred in not crediting certain uncontroverted evidence of the Plaintiffs.

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STATEMENT OF THE CASE

A. Introduction

On October 10, 2010 and April 15, 2010, respectively, Plaintiffs Copeland and Perez were in possession of Common Folding Knives but were arrested by the

New York City Police Department (“NYPD”) and charged with unlawful possession of what Defendants claim were gravity knives under N.Y. Penal L. §

265.00 (5) and N.Y. Penal L. § 265.01(1) (“Gravity Knife Law”). They were arrested because Defendants allegedly managed to open the knives using the Wrist

Flick Test. The charges were resolved when both men executed Adjournments in

Contemplation of Dismissal (“ACD”). (Declaration of John Copeland (“Copeland

Dec.”) ¶¶ 3-9; Declaration of Pedro Perez (“Perez Dec.”) ¶¶ 4-8.) A54-A55; A59-

A60.

On June 17, 2010 the DA publicly announced his scheme to coerce Plaintiff

Native Leather by threatening criminal charges on the ground that it was allegedly selling gravity knives. (P-5; Declaration of Douglas S. Ritter (“Ritter Dec.”) ¶¶

24-25); Deposition Read-ins of Dan Rather (“Rather Dep.”) p. 11-16.) A102-

A103; A96; A688-A690. The DA threatened prosecution because Defendants allegedly managed to open certain Common Folding Knives using the Wrist Flick

Test. Facing prosecution, Native Leather agreed to pay the City a monetary sanction and turn over most of its Common Folding Knives in exchange for the

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City’s agreement not to prosecute. (Id; Declaration of Carol Walsh (“Walsh

Dec.”) ¶¶ 4-15; P-2; P-3.) A63-A663; A74-A85.

Because Copeland and Perez wish to lawfully possess and use Common

Folding Knives within the City, but fear arrest and prosecution if they do so, and because Native Leather wishes to lawfully sell Common Folding Knives within the

City, but fears prosecution if it does so, this action was commenced on or about

June 9, 2011 pursuant to 42 U.S.C. §1983 seeking declaratory and injunctive relief.

(Copeland Dec. ¶¶ 10-13; Perez Dec. ¶¶ 9-12; Walsh Dec.) A55-A56; A60; A62.

Plaintiffs allege that Defendants’ application of the Gravity Knife Law, employing the Wrist Flick Test on Common Folding Knives to determine whether they are gravity knives, is void for vagueness in violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution because, applying the law in that fashion, no one can determine, ex ante, what constitutes a legal knife.

B. Switchblade Knives, Gravity Knives, Common Folding Knives

Knives that one can carry in one’s pocket can be divided, based on custom, industry standard, and history into three categories based on design and function.

A switchblade knife has a blade that springs out of the handle when a button is depressed and locks in place. Such knives have a “bias toward opening.” The blade is held in the handle by a lock. Otherwise, its natural tendency is to open.

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(Expert Declaration of Paul Tsujimoto (“Tsujimoto Dec.”) ¶¶14-16, 27-33; P-10.)

A108; A110-A111; A136.

A gravity knife is traditionally defined as a knife that opens merely by the force of gravity when a lock holding the blade within the handle is released, allowing the blade to fall out of the front of the handle. In World War II, German paratroopers carried gravity knives to cut themselves free if stuck in a tree. This is the “German Paratrooper Knife,” and was not a folding knife at all. Rather, the blade simply fell downward out of the knife’s body when released, by gravity alone. Traditionally, a gravity knife’s blade moves freely in and out of the handle without resistance, which is why it is released merely by gravity. (Tsujimoto Dec.

¶¶ 18-26, 32; P-4; P-8; P-9; P-13; P-16; P-17; P-18; P-19; P-23; Expert Declaration of Bruce Voyles (“Voyles Dec.”) ¶¶ 8-24, 37-40; Ritter Dec. ¶¶ 8-11, 14-15, 22.)

A108-A110; A111; A101; A134-A135; A139; A184-A187; A352; A160-A165;

A169-A170; A89-A92; A95. Several traditional gravity knives, including the

German Paratrooper Knife, were demonstrated in the Live Knife Demo.

If a traditional gravity knife is held horizontally, it may also be opened by the application of centrifugal force, as one would experience on a carousel or spinning in a swivel chair. Although legal in many states, true gravity knives are not currently produced by any domestic manufacturer. (Tsujimoto Dec. ¶¶ 18-26,

32; P-4; P-8; P-9; P-13; P-16; P-17; P-18; P-19; P-23; Expert Declaration of Bruce

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Voyles (“Voyles Dec.”) ¶¶ 8-24, 37-40; Ritter Dec. ¶¶ 8-11, 14-15, 22.) A108-

A110; A111; A101; A134-A135; A139; A184-A187; A352; A160-A165; A169-

A170; A89-A92; A95.

A true gravity knife can either be described as having a bias toward opening or as having no bias. If the gravity knife is pointed downward or is held out horizontally while spinning in a chair, the gravity knife can be describe has having a bias toward opening, as manually releasing the blade lock will immediately cause the blade to slide out of the handle. At rest, the gravity knife has no bias either way, as there is no tendency for the blade to open or to stay closed. (Tsujimoto

Dec. ¶¶ 18-26, 32; P-4; P-8; P-9; P-13; P-16; P-17; P-18; P-19; P-23; Expert

Declaration of Bruce Voyles (“Voyles Dec.”) ¶¶ 8-24, 37-40; Ritter Dec. ¶¶ 8-11,

14-15, 22.) A108-A110; A111; A101; A134-A135; A139; A184-A187; A352;

A160-A165; A169-A170; A89-A92; A95.

Just as gravity and centrifugal force will "pull" the blade out from the front of the handle, so too will a very gentle flick of the wrist that imparts some minimal amount of centrifugal force. 3 As soon as centrifugal force is applied by the start of the wrist movement, the blade "readily" starts moving out of the front of handle. It does not require great effort or multiple attempts; and it is "readily" accomplished

3 This gentle “flick of the wrist” is materially different than the sharp flick of the wrist or arm employed in the Wrist Flick Test. 11

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by virtually any person regardless of strength, dexterity, stature, training, or experience. A true gravity knife will operate in the same manner for anyone every time. (Tsujimoto Dec. ¶¶ 18-26, 32; P-4; P-8; P-9; P-13; P-16; P-17; P-18; P-19;

P-23; Voyles Dec. ¶¶ 8-24, 37-40; Ritter Dec. ¶¶ 8-11, 14-15, 22.) A108-A110;

A111; A101; A134-A135; A139; A184-A187; A352; A160-A165; A169-A170;

A89-A92; A95.

In addition to traditional switchblade knives and gravity knives, there are folding knives explicitly designed to resist opening. They have a “bias toward closure.” They are designed with a mechanical feature exerting tension on the blade to keep it in the handle of the knife until manual force is exerted deliberately on the blade to rotate it out of the handle to overcome the resistance. By design, their tendency is to remain closed, which is incorporated in Common Folding

Knives as a safety measure. Bias toward closure is not a locking mechanism but a resistance. (Tsujimoto Dec. ¶¶ 27, 34-38, 46; Ritter Dec. ¶¶ 4-7, 12-14, 29-30; P-

11; P-12; P-13; P-23.) A110-A113; A115-A116; A88-A89; A91-A92; A98-A99;

A137-A139; A353-A356.

A folding knife with a bias toward closure will not open by holding it out while sitting in a spinning chair, as a true gravity knife will. This is because the

Wrist Flick Test employs more than simply centrifugal force. The Wrist Flick Test starts with centrifugal force but then, at the end of the motion, employs inertia by

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abruptly stopping the motion of the knife handle. The blade opens because the handle stops moving but the blade continues to move to the open position. This is fundamentally different than how a true gravity knife operates. (Tsujimoto Dec. ¶¶

18-26, 27, 32, 34-51; Voyles Dec. ¶¶ 8-24, 37-40; Ritter Dec. ¶¶ 4-22, 27-31; P-

4; P-8; P-9; P-11; P-12; P-13; P-16; P-17; P-18; P-19; P-23.) A108-A117; A160-

A165; A169-A170; A88-A95; A97-A99; A101; A134-A135; A137-A138; A139-

A147; A152-A156; A184-A187; A352.

This category of knives represents virtually all pocket knives legally sold in the U.S. today and carried by millions of Americans and New Yorkers daily.

(Tsujimoto Dec. ¶¶ 11-12, 38, 43; P-13; Voyles Dec. ¶¶ 23-35; P-23; Ritter Dec. ¶

29.) A107; A113-A114; A139; A165-A168; A349-A356; A98.

These definitions are how such knife terms are uniformly used by the knife industry, as is evidenced by the definitions published by the American Knife &

Tool Institute (“AKTI”). (P-13; P-23.) A139-A157; A349-A356.

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C. The Statutory Framework

Under New York law, possession of knives, including pocket knives, is generally lawful. See N.Y. Penal L. § 265.01(2); People v. Brannon, 16 N.Y.3d

596, 599, 925 N.Y.S.2d 393 (2011).

However, New York law includes a per se prohibition of “gravity knives.”

See N.Y. Penal L. § 265.01(1).

New York law defines a gravity knife as “having 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 L. § 265.00(5). The New York Court of

Appeals has held that to be a “gravity knife” a knife must open readily by the force of gravity or the application of centrifugal force. People v. Dreyden, 15 N.Y.3d

100, 104 (2010). See also United States v. Irizarry, 509 F. Supp. 2d 198, 210

(E.D.N.Y. 2007). New York first prohibited gravity knives in 1958, and the definition remains the same. See 1958 N.Y. Laws ch. 107, sec. 1, § 1896. (the

“Gravity Knife Law.”)

Significantly, under New York law, a “pocket knife” is a folding knife that

“cannot readily be opened by gravity or centrifugal force.” Dreyden, 15 N.Y.3d at

104; Irizarry, 509 F. Supp. 2d at 210. Pocket knives are widely and lawfully sold and possessed in New York and nationally. Id. at 209-10.

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In 1958 Attorney General Louis Lefkowitz described gravity knives as

“knives containing blades automatically opened by the force of gravity.” (P-20.)

A221.

The Bill Jacket demonstrates that when the Gravity Knife Law was being considered, legislators were concerned with true gravity knives like the German

Paratrooper Knife, rather than Common Folding Knives. (Id.) A207-A225.

New York Times articles contemporaneous with and shortly after passage of the Gravity Knife Law reveal that the then common understanding of gravity knives was true gravity knives like the German Paratrooper Knife, rather than

Common Folding Knives. (Volyes Dec. ¶¶ 15, 37-40; P-22.) A162; A169-A170;

A330-A348.

These historical references are also consistent with the current industry understanding of “gravity knife,” as distinguished from a Common Folding Knife

(see AKTI definitions). (P-13; P-23.) A139-A157; A349-A356.

Beginning with United States v. Irizarry, 509 F. Supp. 2d 198 (E.D.N.Y.

2007), courts in New York began to address the contention that a knife can be deemed a gravity knife if it can be opened by a “flick of the wrist.” Judge

Weinstein concluded that the “Husky” brand folding utility knife was not a gravity knife. Id. at 209-10.

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Irizarry is significant because the arresting officer was able to open the knife with a “wrist-flick” motion in court, and the court specifically found the knife was

“capable of being opened by an adept person with the use of sufficient centrifugal force.” Id. at 204. However, the court also found that it was “not designed to open by use of centrifugal force [emphasis added]” and had a “construct[ion] so that it has a bias to close.” Id. at 205. (The knife was a Common Folding Knife.) The ease with which it could be opened depended on the degree of mechanical resistance present in the blade, and while increasing that resistance would make it more difficult to “wrist-flick” the blade open, it would also make the knife less practical as a tool. Id.

The court in Irizarry found that the ability to open a folding knife with a

“wrist-flick” was not enough. However, New York state courts disagreed.

Beginning in 2010, in several cases the defendants were successfully prosecuted by the DA for possessing gravity knives because the police (not the defendant) could open the knife with a flick of the wrist. See People v Neal, 913

N.Y.S.2d 192 (1st Dep’t 2010) (“The officer demonstrated in court that he could open the knife by using centrifugal force, created by flicking his wrist . . .”);

People v. Herbin, 927 N.Y.S2d 54 (1st Dep’t 2011) (“. . . the officers release[d] the blade simply by flicking the knife with their wrists . . .”); accord Carter v. McKoy,

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2010 U.S. Dist. LEXIS 83246 (S.D.N.Y. 2010) (officer opened knife with flick of wrist).

Thus, New York’s 50 year old Gravity Knife Law has taken on a novel and unique (to New York City) application, which has been accepted by New York courts.

Significantly, Congress managed to avoid this mutation of the law; that is, applying gravity knife prohibitions to Common Folding Knives.

Under federal law, “switchblade” is broadly defined and includes gravity knives. However, the federal prohibition does not extend to Common Folding

Knives. 15 U.S.C. §1244(5) contains an exception for:

a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife. [Emphasis added.]

This “bias toward closure” is precisely the feature that differentiates a Common

Folding Knife from a true gravity knife like the German Paratrooper Knife. Thus, unlike New York law, federal law eliminates the risk that a Common Folding

Knife could be construed as a gravity knife.

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D. The Parties

Plaintiff Copeland is a citizen and resident of Manhattan, New York. He is a 39 year-old painter whose work is recognized worldwide. Galleries in New

York, Copenhagen, and Amsterdam currently feature his work, as have galleries throughout the U.S. and the world. (Copeland Dec. ¶ 1.) A53.

Plaintiff Perez is a citizen and resident of Manhattan, New York. Perez is 48 years old and has been employed as a purveyor of fine arts and paintings for the past 22 years. He possesses two associates degrees and Series 7 and 63 securities licenses. In the course of his art business, he transports artwork and tools throughout the City. One tool he finds useful is a knife, as he often needs to cut canvas and open packaging. (Perez Dec. ¶ 1, 3.) A58-A59.

Plaintiff Native Leather is a New York corporation with its principal place of business in Manhattan. Native Leather operates a retail store at 203 Bleecker

Street in Greenwich Village. The store sells mainly men’s accessories, leather goods, and folding pocket knives, operating since 1969. (Walsh Dec. ¶ 2, 3.) A62-

A63.

Defendant District Attorney Cyrus Vance is sued in his official capacity as

District Attorney for New York County, responsible for executing and administering the laws of New York State, including §§ 265.00 and 265.01 of the

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Penal Law. The DA has enforced the laws at issue against Plaintiffs, continues to enforce these laws against Plaintiffs, and threatens to do so in the future. (Rather

Dep. pp. 11-26.) A688-A693.

Defendant City is a New York municipal corporation. The City is authorized by law to maintain the NYPD, which acts for it in the area of law enforcement, and the City is ultimately responsible for the NYPD, which is an agency of the City. Officers of the NYPD have enforced the laws at issue against

Plaintiffs, continue to enforce these laws against Plaintiffs, and threaten to do so in the future.

E. Defendants’ Recent Enforcement of the Gravity Knife Law

On October 10, 2010, NYPD police officers stopped Copeland near his home on Manhattan’s lower east side after observing a metal clip in Copeland’s pocket. (Copeland Dec. ¶ 7.) A55.

Copeland was carrying a Benchmade brand Model 10210 Common Folding

Knife with a blade of approximately 3 inches and a mechanism that locks the blade open. The knife is designed so that its blade resists opening from the closed position. (Copeland Dec. ¶ 3.) A54.

Copeland purchased his knife at Paragon Sports in Manhattan in October

2009. The knife features a blade mounted stud that allows a user to swivel the

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blade open with his thumb. Copeland selected this knife because he wanted a knife that he could open with one hand, because he needs to use his knife at the same time that he is using his other hand to paint or to hold canvas and also because the lock prevented the blade from closing on his fingers. (Copeland Dec. ¶ 3-4.) A54.

Copeland was never able to open his knife with a flick or thrust of the wrist, but, exercising caution, twice, he showed his knife to NYPD officers and asked them whether or not his knife was illegal. Both officers tried to open the knife using a “flicking” motion, but they could not, so they told Copeland that the knife was legal. (Copeland Dec. ¶ 5.) A54.

Subsequently, on October 10, 2010, different NYPD officers stopped

Copeland near his home after observing the metal pocket clip on his pocket. The officers stated that they could open the knife by grasping the knife’s handle and forcefully “flicking” the knife downwards, and they alleged that it was therefore a gravity knife, charging him with Criminal Possession of a Weapon in the Fourth

Degree by issuing him a Desk Appearance Ticket. (Copeland Dec. ¶ 7-8.) A55.

Copeland retained counsel and defended the charge on its merits. Copeland entered into an ACD on January 26, 2011. (Copeland Dec. ¶ 9.) A55.

In approximately April 2008, Perez purchased a Gerber brand Common

Folding Knife at Tent & Trail in Manhattan, with a blade of approximately 3.75 inches. The knife is designed so that it resists opening. (Perez Dec. ¶ 4.) A59.

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The knife features a blade mounted stud that allows a user to swivel the blade open with his thumb. Perez selected the knife because he wanted a knife that he could open with one hand, because in his work as an art dealer he needs to carefully cut artwork away from frames, and such a knife allows him to use his other hand to hold the canvas while making a cut. Perez also selected this knife because the blade locks open, preventing the blade from closing on his fingers.

(Perez Dec. ¶ 5.) A59.

On April 15, 2010 NYPD officers stopped Perez in a Manhattan subway station after observing a metal clip in Perez’s pocket. (Perez Dec. ¶ 6.) A59.

The officers alleged that his knife was a gravity knife. Although the officers could not open the knife using a “flicking” motion, they asserted that it would theoretically be possible to do so, and that the possibility to open the knife using any type of a “flicking” motion made it a gravity knife. The NYPD officers charged Perez with Criminal Possession of a Weapon in the Fourth Degree by issuing him a Desk Appearance Ticket. (Perez Dec. ¶ 7.) A59.

Perez retained counsel and defended the charge on its merits. Perez entered into an ACD on November 17, 2010. (Perez Dec. ¶ 8.) A60.

Copeland and Perez no longer carry Common Folding Knives in the City.

They would each carry a Common Folding Knife, but they refrain because they fear that they will again be charged with Criminal Possession of a Weapon, and

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they are unable to determine whether any particular Common Folding Knife might be deemed a prohibited gravity knife by the District Attorney or NYPD.

(Copeland Dec. ¶ 10; Perez Dec. ¶ 9.) A55; A60.

There is no test Copeland or Perez can apply to a folding knife by which they can conclude that it will be considered legal by Defendants. If they try to test the knife with the Wrist Flick Test and fail, they still could not be sure that in the future a police officer could not open the knife in that fashion, subjecting them to arrest and prosecution. (Copeland Dec. ¶ 12; Perez Dec. ¶ 11.) A55-A56; A60.

No matter how many times Copeland or Perez try and fail to flick a folding knife open, as long as any police officer, anywhere, at any time in the future can open the knife using the Wrist Flick Test, Copeland and Perez would be subject to arrest. There is literally no test they can perform on a Common Folding Knife to protect themselves from arrest. (Copeland Dec. ¶ 13; Perez Dec. ¶ 12.) A56; A60

In June 2010, the DA announced enforcement actions against knife retailers in New York City (the “NYC Retailers”). He asserted that many of the NYC

Retailers’ Common Folding Knives were gravity knives and threatened criminal charges. He targeted reputable, established businesses such as Paragon, Orvis,

Eastern Mountain Sports, and Home Depot, even deeming common utility knives in hardware stores to be prohibited. One such NYC Retailer was Native Leather.

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(Rather Dep. passim; P-2; P-3; P-5; P-32; P-33; Walsh Dec. ¶¶ 4-22.) A681-

A729; A74-A86; A102-A103; A737-A847; A63-A67.

The alleged gravity knives sold by the NYC Retailers were similar to the

Benchmade and Gerber knives described above, Common Folding Knives designed to resist opening from the closed position. (Rather Dep. passim; P-2; P-3;

P-5; P-32; P-33; Walsh Dec. ¶¶ 4-22.) A681-A729; A74-A86; A102-A103; A737-

A847; A63-A67.

Facing prosecution, the NYC Retailers agreed to pay the DA approximately $2.8 million, enter into Deferred Prosecution Agreements

(“DPAs”), and to generally turn over their Common Folding Knives, in exchange for the City’s agreement not to prosecute. (Rather Dep. passim; P-2; P-

3; P-5; P-32; P-33; Walsh Dec. ¶¶ 4-22.) A681-A729; A74-A86; A102-A103;

A737-A847; A63-A67.

The NYC Retailers also provided the DA with Compliance Programs ostensibly designed to ensure that they no longer sold knives that the DA would deem to be gravity knives. (Rather Dep. passim; P-3; P-5; P-32; Walsh Dec. ¶¶ 4-

22.) A681-A729; A74-A86; A102-A103; A827-A847; A63-A67. (E.g. Paragon,

P-32 at p.1, 000288.) A827.

Although the NYC Retailers and the City agreed that the NYC Retailers would remove some Common Folding Knives from their New York City stores,

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the City agreed to permit certain of the NYC Retailers, such as Paragon, to continue selling certain “custom” Common Folding Knife models. Aside from their significant value, these “custom” knives were and are functionally identical to the other Common Folding Knives that the District Attorney had alleged were per se illegal and that the NYC Retailers had agreed not to sell in the City, and they were knives that would most likely fail the Wrist Flick Test. (P-33, p.000153, ¶

4(a); Rather Dep. p.102-103; Ritter Dec. ¶¶ 26-31.) A738; A718-A719; A97-A99.

Significantly, even though the DA apparently agreed to allow certain NYC

Retailers to sell such expensive “custom” Common Folding Knives, there is no way for the purchaser of such a knife to know whether or not an NYPD officer able to flick open such a knife would arrest the purchaser of such a knife, just as

Copeland and Perez were arrested. (Ritter Dec. ¶¶ 26-31.) A97-A99.

Further, Paragon continued to sell Swiss Army Knives made by Victorinox, and although they are much more difficult to wrist flick open, they can be flicked open by someone who is experienced and adept at the maneuver and if that person employs sufficient force (see Live Knife Demo (A1197) at 10:08:09 to 10:11:10).

Paragon continued to sell these knives. Thus, they must have passed Paragon’s vetting procedure. (Ritter Dec. ¶¶ 26-31.) A97-A99.

In May 2010, Native Leather was served by the DA with a Grand Jury

Subpoena which required it to produce certain documents relating to the sale of

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knives and turn over “per se illegal knives,” including what they called “gravity knives.” The subpoena did not specify what a gravity knife was. Carol Walsh, owner of Native Leather, had to guess what they wanted, since she did not believe

Native Leather had any gravity knives in inventory. (Walsh Dec. ¶ 4.) A63.

Shortly before Native Leather received the subpoena, several customers had come into the store telling Walsh they had been arrested for possession of a knife they had bought in the store. They said the police accused them of possessing gravity knives because they could be opened with a flick of the wrist. Walsh concluded that the DA must be asking for those. She did not believe Native

Leather had any such knives, but to comply with the subpoena Walsh had to determine which knives could be ones the DA might think could be opened in that fashion by someone. (Walsh Dec. ¶ 5.) A63.

It was very difficult to choose. All of the locking, folding knives Native

Leather sold were designed the same way – with a bias toward closure. Walsh ended up packing up most of the inventory, guessing which ones the DA might call gravity knives. She included both one and two hand opening knives. (Walsh Dec.

¶ 5.) A63.

On or about May 19, 2010 the DA picked up documents and approximately five boxes of knives, more than 300 knives. Eventually approximately 90 were returned, as they said that those were not gravity knives. The knives returned by

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the DA included one and two hand opening knives. (Walsh Dec. ¶ 7; Rather Dep. p 39-40.) A64; A700-A701.

Walsh learned that the DA claimed they had bought knives at her store that could be opened by a flick of the wrist or arm and they were therefore alleging that

Native Leather was selling gravity knives. (Walsh Dec. ¶ 8.) A64. The knives she turned over were knives that Walsh never thought could be opened by a flick of the wrist or arm. (Walsh Dec. ¶ 9.) A64.

Several years earlier, Walsh had heard that Iceberg Army Navy had had nearly all of their knives confiscated. Since Native Leather also sold knives,

Walsh became concerned. She went to the 6th Precinct asking why Iceberg’s knives were confiscated. They could not find any information. (Walsh Dec. ¶ 10.) A64-

A65.

Shortly thereafter, two plainclothes policemen entered the store and started examining the folding knives. They handled several, told Walsh she was “fine,” and left. Walsh had always stocked knives that operated in a similar manner to the knives those police officers said were "fine." (Walsh Dec. ¶ 11.) A65.

Nevertheless, because the DA was threatening prosecution, on or about June

15, 2010, Native Leather entered into a DPA. (Walsh Dec. ¶ 12.) A65.

The DPA imposed certain obligations on Native Leather, including:

a. Not to sell “prohibited knives.” (P-2 at 2.) A75. The definition of prohibited knives includes gravity knives. (P-2 at 1.) A74. 26

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b. Develop a written compliance program to “ensure that per se weapons will not be sold . . .” (P-2 at 2.) A75; and

c. Consent to the selection by the DA of an independent Monitor who would, throughout the duration of the DPA, inspect the books, records, and inventory of Native Leather and the other retailers. (P-2 at 3-4.) A76-A77.

(Walsh Dec. ¶ 13.) A65-A66.

Pursuant to the DPA, the DA agreed that if Native Leather complied with the DPA for 18 months, he would not file charges against Native Leather for the alleged sale of gravity knives between May 2006 and May 2010. (Walsh Dec. ¶

14; P-2 at 4-5.) A66; A77-A78.

On or about August 16, 2010, Native Leather submitted its written

Compliance Program. The Compliance Program provided that Walsh would personally test the knives Native Leather sold to make sure they were not gravity knives. (Walsh Dec. ¶ 15; P-3.) A66: A85-A86.

Neither the DPA nor the Compliance Program indicated how Walsh was to test whether a knife was a gravity knife. (Walsh Dec. ¶ 16; P-2; P-3.) A66; A74-

A86.

Thereafter, Walsh attended a meeting with Fred Gebaue of Kroll

Incorporated and Dan Rather and Michael Kitsis of the DA’s office to discuss the

Compliance Program. Walsh learned that Kroll had been selected as the DPA

Monitor. (Walsh Dec. ¶ 17.) A66. 27

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On or about May 6, 2011, several Kroll employees came to the store. They generally described to Walsh and demonstrated the testing technique which involved a sort of sudden downward flick or thrust of the wrist or arm to try and open the knives. Although she thought she basically understood the concept, she does not recall them asking her to show them how she was doing it or providing feedback to ensure that she was doing it correctly. Thus, Walsh cannot be certain that she was doing it as they intended. It did seem clear to her, however, that whether or not a knife would open was at least partially determined by the strength of the person employing the test. Walsh believes that the Kroll Monitors could most likely open some knives that she cannot using their method, as they are stronger than she is, and it did happen at least once. (Walsh Dec. ¶ 19.) A66-A67.

That day, they tested Native Leather’s inventory. They were able to open some knives using the test, and those were pulled out of inventory. One of the store’s Smith & Wesson knives passed their test that day, but that knife was identical to one of the knives that the DA said was a gravity knife that their undercover operative purchased from the store in May 2010 which led to the threatened prosecution. (Walsh Dec. ¶ 20.) A67.

Another knife, the Buck Crosslock, failed when they tested three of them, so they pulled them, but Walsh has never been able to open the Crosslock using their test, even though she has tried. (Walsh Dec. ¶ 21.) A67.

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Further, none of the knives she tested under the Compliance Program ever failed the test when she tried to apply it. She was never able to open any of them using the test as she understood it. (Walsh Dec. ¶ 22.) A67.

Notwithstanding, even if Native Leather sells a knife that Walsh tests and cannot “wrist-flick” open, there is no assurance that some NYPD officer will not be able to “wrist-flick” such knife open in the future, resulting in charges being brought against Native Leather.

Consistent with Native Leather’s experience with the DA, none of the DPAs or Compliance Programs of the NYC Retailers actually describes the Wrist Flick

Test. All they do is indicate that the NYC Retailers agree not to sell gravity knives. (P-32; P-33.) A737-A847.

Similarly, for those parties that agreed to test their knives, the DPAs and

Compliance Programs merely state that the knives will be tested to ensure that they cannot be opened by gravity or centrifugal force. (P-32; P-33.) A737-A847.

No document provided by the DA explains how the NYC Retailers should make that determination. (P-32; P-33.) A737-A847.

F. Inherent Variability and Indeterminacy of the Wrist Flick Test when Applied to Common Folding Knives.

Walsh’s experience with the inconsistency of the Wrist Flick Test is consistent with that of Douglas Ritter, Chairman of former Plaintiff Knife Rights, 29

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Inc, founder, Editor, and principal author of the Equipped To Survive website, and founder/Chairman of the 501(c)(3) non-profit Equipped To Survive Foundation.

On numerous occasions, numbering at least 100, since June 2010 when DA Vance issued his press release, Ritter has been approached at knife shows and on other occasions by individuals who asked if their Common Folding Knife was legal in the City, explaining that they are unable to open the knife with a wrist flick.

(Ritter Dec. ¶¶ 1, 2, 16.) A87-A88; A92-A93.

On many of these occasions they demonstrated to him their inability to open the knife using a wrist flick. On all but four occasions, Ritter was able to open the knife using a forceful wrist flick on his first attempt, even though they could not.

On three occasions it took him two attempts to open the knife by wrist flicking, using additional force the second time. (Ritter Dec. ¶ 16.) A92-A93.

This corresponds with his many experiences performing the wrist flick maneuver in many variations on hundreds of different Common Folding Knives where the success or failure of the knife to open with the maneuver is determined by the variable amount of force, which is determined by a combination of speed and technique applied to the knife. (Ritter Dec. ¶ 17.) A93.

Ritter has observed that even among the exact same model of knife from any particular manufacturer, this variability existed, such that one example of a model

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of knife did open and another example of the same model of knife did not open with approximately the same technique and effort. (Ritter Dec. ¶ 17.) A93.

In the course of the making these observations, Ritter was also unable to determine in advance whether any particular knife that could not be opened by one individual using a wrist flick was likely to be able to be opened using a wrist flick by another more adept or stronger individual. (Ritter Dec. ¶ 19.) A94.

Ritter noticed that every individual who attempted a wrist flick executed it in his own individual manner. There was never any consistency in execution between individuals nor often consistency even by the same individual when conducting multiple attempts. (Ritter Dec. ¶ 20.) A94.

In the course of the making these observations it became obvious to Ritter that strength and technique were the key variables that would determine whether any particular attempt would succeed. Ritter observed weaker persons who could not open a knife with a wrist flick, but a stronger person able to exert additional force and speed was able to. Ritter observed heavily muscled individuals who were not adept at the maneuver fail while the same knife was able to be opened by lesser muscled individuals who had better technique. Ritter observed women unable to open the knife when the same knife was opened by men and vice versa.

(Ritter Dec. ¶ 21.) A94-A95.

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In contrast, Ritter’s observations of his own and others' attempts to open true gravity knives (German Paratrooper Knife) show that these knives always open easily for anyone who attempts to open them, either through the use of gravity or by swinging the arm. It did not matter who did it, small or large, weak or strong, lots of experience or none. Ritter has observed that the blade always came out when pointed towards the ground and the blade lock was manually released. As long as a bare minimum of speed is used while swinging the arm, once the manual blade lock was released, the blade always slid out. Ritter has observed when he has done it that it takes only the most minimal effort to get the blade to slide out.

And, it takes the same amount of effort to get the blade to slide out regardless of the knife or the person trying to open the knife. (Ritter Dec. ¶ 22.) A95.

Folding knives generally may be opened with two hands: one grasping the handle and the other grasping the blade and moving it to the open position. Some folding knives have a stud/protrusion or hole on the blade that allows a person to use either their free hand or the thumb of the hand holding the knife to rotate the blade to the open position. This is known as a one-hand opening knife. (Tsujimoto

Dec. ¶ 40.) A113.

Folding knives are neither designed nor intended to be opened with a wrist flick, which is dangerous to persons nearby. All knives are potentially dangerous,

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and opening them with gross motions like a "wrist flick" constitutes serious neglect. (Tsujimoto Dec. ¶ 41.) A113-A114.

The wrist or arm flicking motion also puts tremendous strain on the knife construction, damaging the locking, pivoting, and stabilizing mechanisms.

(Tsujimoto Dec. ¶ 42.) A114.

It is potentially possible to open any folding knife using a "wrist flick" motion. Therefore, under this standard, virtually all folding knives produced by both U.S. and foreign makers would potentially be illegal. Thus, all knife makers would have been in open violation of New York law for many years. (Tsujimoto

Dec. ¶ 43.) A114.

Because of the bias toward closure inherent in the design of a Common

Folding Knife, various factors will impact the ability of a knife to be opened when the Wrist Flick Test is applied to a Common Folding Knife. These include: strength, dexterity, and skill of the user; design, materials, and construction of the knife; manufacturing variances, and wear and tear over time; as well as the variable tension on an adjustment screw, if present (Tsujimoto Dec. ¶¶ 45-46;

Ritter Dec. ¶¶ 12-14, 16-21, 27-31.) A114-A115; A91-A94; A97-A99.

Thus, because of the bias toward closure, applying the Wrist Flick Test to a

Common Folding Knife is inherently variable, inconsistent, and indeterminate.

(Tsujimoto Dec. ¶¶ 45-46; Ritter Dec. ¶¶ 12-14, 16-21, 27-31; Walsh Dec. ¶¶ 19-

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22; Copeland Dec. ¶¶ 5-8, 12-13.) A114-A115; A91-A94; A97-A99; A66-A67;

A54-A56.

The opposite is true of a true gravity knife (such as the German Paratrooper

Knife), which will function in the same manner, and open consistently, from person to person, knife to knife, and time to time regardless of such variables.

(Ritter Dec. ¶¶ 8-11, 14-15, 22; Tsujimoto Dec. ¶¶ 18-26, 51.) A89-A92; A95;

A108-A110; A117-A118.

G. The Live Knife Demonstration Illustrates the Inherent Variability and Indeterminacy of the Wrist Flick Test when Applied to Common Folding Knives.

On June 16, 2016, the district court observed a live demonstration of knife operation that it had ordered to be performed in open court (“Live Knife Demo”)

A924-A925; A954-A958. Although all parties were invited to participate (T:8-1 to

T:8-12) A982, only Plaintiffs chose to do so. The court entered an order permitting a video record. A959-A960. The video disc is at A1197.

Plaintiffs brought and demonstrated the following 11 knives divided into two categories - True Gravity Knives and Common Folding Knives. Each knife is listed below along with its exhibit number, description, and the video reference and transcript reference where it appears in the Live Knife Demo.

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True gravity knives:

P-35: 1877 "Patent Slide" gravity knife. Manufactured end of 19th century.

Video - 9:47:14 to 9:49:59 Transcript - T:28-11 to T:33-13; A1002-A1007.

P-36: World War II German Paratrooper Knife P-37: Post World War II German Paratrooper Knife

Video - 9:54:54 to 9:56:46 Transcript - T:34-15 to T:39-3; A1008-A1013.

Common Folding Knives:

P-38: Spyderco Ladybug

Video - 10:04:50 to 10:05:59 Transcript - T:39-4 to T:45-8; A1013-A1019.

P-39: Victorinox Swiss Army Knife – Trekker (Used) P-40: Victorinox Swiss Army Knife – Trekker (New)

Video - 10:08:09 to 10:11:10 Transcript - T:45-25 to T:48-25; A1019-A1022.

P-41: Leatherman Surge Multitool P-42: Leatherman Surge Multitool

Video - 10:14:57 to 10:17:02 Transcript - T:49-1 to T:51-22; A1023-A1025.

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P-43: Buck Crosslock

Video - 10:18:29 to 10:20:15 Transcript - T:52-3 to T:53-5; A1026-A1027.

P-44: Buck 110

Video - 10:26:00 to 10:27:31 Transcript - T:55-12 to T:56-20; A1029-A1030.

P-45: Browning Buckmark G10 with Adjustable Pivot

Video - 10:31:38 to 10:35:08 Transcript - T:57-1 to T:61-13; A1031-A1035.

P-35, P-36, and P-37 are True Gravity Knives. The Live Knife Demo shows that they open easily and readily by merely inverting them and allowing gravity to draw the blade out of the handle. They also open easily and readily by spinning one’s body in place or by flicking the hand forward. The Live Knife Demo shows that True Gravity Knives can be opened easily by anyone regardless of strength, dexterity, or training and that they will open the same way every time.

P-38 through P-45, Common Folding Knives, show the dramatic variability of the Wrist Flick Test when applied to Common Folding Knives because they have the bias toward closure.4 Those knives were demonstrated on behalf of

Plaintiffs by Douglas Ritter and attorney Daniel Schmutter. Notably, there was in

4 Bias toward closure is demonstrated in the Live Knife Demo video at 10:26:00 to 10:26:30. A1197. 36

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most cases a dramatic difference between the ability of Ritter and Schmutter to open the knives using the Wrist Flick Test.

In the case of P-39, P-40, and P-43, Ritter could only flick those knives open with very great effort and after numerous attempts. Schmutter could flick those same knives open easily, usually on the first attempt.

In the case of P-44 (Buck 110) Ritter could not flick it open at all, and

Schmutter could flick it open easily.

P-45, the adjustable pivot knife, showed the same variation. On the intermediate tightness settings, Ritter could not flick it open at all, and Schmutter could flick it open easily.

This demonstration took place with two highly skilled knife handlers. Even

Ritter could not easily (or could not at all) flick open knives that Schmutter flicked open with ease. An inexperienced person would be even less likely than Ritter to successfully apply the Wrist Flick Test to many knives that a person with greater skill (such as a trained Police Officer or ADA) could readily flick open.

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H. Defendants’ Approach to the Functional Test/Wrist Flick Test

1. The City

The deposition testimony of the City’s Rule 30(b)(6) witnesses, Captain

Michael Tighe, Lieutenant Daniel Albano, and Officer Tomas Acosta, all of the

NYPD, confirms the following facts.

NYPD officers obtain their training in several ways. First, they train at the police academy from instructors such as Officer Acosta. (Deposition Read-ins of

Tomas Acosta (“Acosta Dep.”) passim) A591-A616, but they do not routinely teach recruits how to determine whether a knife meets that definition. (Id.)

Officer Acosta has never shown his students an actual gravity knife, has never given instruction in how to hold a knife to perform the Wrist Flick Test, has never been involved in a gravity knife arrest, has never opened a gravity knife using the Wrist Flick Test, and has never held a gravity knife in his hand. (Acosta

Dep. pp.29-31, 43, passim.) A608-A610; A615; A591-A616.

Officer Acosta spends 15 minutes instructing students about gravity knives

(Acosta Dep. p. 33), A611, and has never instructed students regarding what to conclusion if one officer can flick open a knife and another cannot. (Acosta Dep. p.

34.) A612. He has never instructed students how many times the Functional Test is to be employed on a knife (Acosta Dep. p. 34). A612.

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His instruction on how to identify a gravity knife consists of showing them a picture, showing them the statute, and telling them that the blade “flies out and locks.” (Acosta Dep. p. 34-35.) A621-A613.

Academy recruits also obtain training from the Police Student Guide

(“Student Guide”). (Acosta Dep. p. 17; P-30; Deposition Read-ins of Daniel

Albano (“Albano Dep.”) pp. 11-12.) A600; A499; A471-A472.

The Student Guide provides the statutory definition of “gravity knife” but does not instruct how to determine whether a knife meets that definition. (Acosta

Dep. p. 16-21; P-30.) A599-A601; A503.

Officers also obtain information from a Patrol Guide, which is prepared by the Office of Management Analysis and Planning (“OMAP”). (Deposition Read- ins of OMAP Commander Michael Tighe (“Tighe Dep.”) p.8.) A414.

The Patrol Guide does not address gravity knives (Tighe Dep. pp. 10-21)

A416-A419, and there are no unwritten policies addressing gravity knives. (Tighe

Dep. pp. 24-27.) A420-A422.

Lieutenant Albano is an NYPD officer, a lawyer, and managing attorney of the legal bureau. (Albano Dep. p.7.) A467.

Neither he nor the NYPD has ever received any requests for information, clarification, or guidance concerning the Gravity Knife Law, even though his job is

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to give advice to members of the department. (Albano Dep. p.8, 13-14.) A468;

A473-A474.

Lieutenant Albano would test a knife by “moving [his] arm very quickly” to see if it opens (Albano Dep. pp. 22-23) A478-A479, even though he has never performed the Functional Test on an actual gravity knife, (Albano Dep. p. 57)

A487, and has never seen anyone perform the Functional Test. (Albano Dep. pp.

67-68.) A490-A491.

He believes that a knife is a gravity knife even if one officer can open the knife in that manner and another office cannot. (Albano Dep. pp. 41-42.) A482-

A483.

Lieutenant Albano cannot explain with clarity how to perform the

Functional Test. (Albano Dep. pp. 21-71.) A477-A493. He describes it as

“moving your arm and wrist or your wrist by itself in such a manner that centrifugal force, it would expose the blade” and “[y]ou’re moving [your arm] at a speed that would make centrifugal force expose the blade . . . .” (Albano Dep. pp.

69-71.) A492-A493.

There are no NYPD Operations Orders that address gravity knives. (Albano

Dep. pp. 65-67; P-29). A488-A490; A428-A461.

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2. The DA

The deposition testimony of the DA’s Rule 30(b)(6) witness, Dan Rather, confirms the following facts.

Rather is the Chief of Trial Division Initiatives for the New York County

District Attorney and has been with the DA for 31 years. (Rather Dep. pp. 7-8.)

A684-A685.

Rather participated in and directed the DA’s 2010 investigation and enforcement initiative regarding gravity knives (Rather Dep. pp. 11-17), issuing grand jury subpoenas requiring the NYC Retailers to turn over gravity knives.

(Rather Dep. p. 37.) A698.

The subpoenas did not define gravity knives other than by reference to the statute, giving no instruction how to identify which knives to turn over. (Rather

Dep. pp. 37-40.) A698-A701.

The retailers requested guidance as to how to determine which knives to turn over, but the DA only referred them to the statute. The DA gave no guidance as to how they were to determine what was a gravity knife. (Rather Dep. pp. 38-39.)

A699-A700.

Rather and several others in the DA’s office performed the Functional Test on the knives turned over by Native Leather and returned those knives that passed the DA’s application of the Functional Test. For every knife, Rather either

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performed the test himself or observed others do so. (Rather Dep. pp. 42-43.)

A702-A703.

One or more of Native Leather’s knives opened only once in ten attempts and were deemed not to be gravity knives by Rather (Rather Dep. pp. 44-46), but he refused to say whether in future testing the DA would apply the same standard.

(Rather Dep. pp. 44-46.) A704-A706.

With the Native Leather knives, some opened when one person applied the test, but the same knife failed to open with another person. (Rather Dep. pp. 51-

53.) A707-A709.

With those knives, the DA decided based on whether they thought they could persuade a jury beyond a reasonable doubt whether the knife was a gravity knife. (Rather Dep. pp. 51-53.) A707-A709.

The DA considers a knife a gravity knife even if it does not open each time it is tested. (Rather Dep. p 43, lines 19-20.) A703.

Rather believes a Leatherman multi-tool, which contains a folding, locking blade, is categorically not a gravity knife because he has never seen one open by centrifugal force. (Rather Dep. p. 81.)5 A711.

5 Subsequent to the Rather deposition, the Live Knife Demo revealed that both Ritter and Schmutter could flick open a Leatherman multi-tool (P-41, P-42). A1197 (10:14:57 to 10:17:02); 42

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The DA relied solely on the NYC Retailers’ choice as to what was a gravity knife even though the DA gave no guidance on how to make that determination, and there appears to be source for a retailer to learn the test. (Rather Dep. pp. 83-

84.) A713-A714.

Rather does not know what type of physical dexterity is needed to perform the Functional Test other than “the ability to test, hold a knife by its handle, apply centrifugal force, and to determine whether it locks into place . . . .” (Rather Dep. pp. 114-115) A721-A722, and the DA cannot describe with specificity how to perform the Functional Test.

I. Defendants’ Admission before this Court on the Prior Appeal.

At oral argument before this Court in the prior appeal, Defendants made an astonishing admission. Arguing for the DA, attorney Benjamin Rosenberg, in response to questioning from the Honorable Rena Raggi, acknowledged that a knife can start out as a legal knife and, over time, become a gravity knife.

Rosenberg suggested that a person in possession of any folding knife is under an affirmative obligation to regularly test it to ensure it has not become a gravity knife merely by the passage of time. (P-27 pp. 35-39.) A396-A400.

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J. Defendants’ Devastating Admission at Trial before the District Court.

The only live witness to testify at trial, ADA Rather, made a telling and devastating admission on the stand. He was asked the single most important question in the entire lawsuit. He was asked how a person standing in a store wishing to purchase a folding knife could determine if the knife was legal in order to avoid arrest and prosecution. Rather indicated that the person should apply the

Wrist Flick Test and attempt to open the blade to the locked position. (T:83-2 to

T:83-20.) A1057.

He was then asked what if the knife does not open on the first try. Rather answered that he should try again. He was then asked what if the person cannot flick the knife open on the second try. Rather answered that such knife is not a gravity knife. (T:83-21 to T:84-25.) A1057-A1058.

Rather was then asked what if that same person stepped out the door of the store and encountered a police officer who then took that knife and flicked it open in one try. Rather answered that the knife would then be a gravity knife and the person would be subject to prosecution. (T:85-7 to T:85-12.) A1059.

This very candid testimony illustrates precisely the issue in the case. There is no means by which a person can conclude that a given knife is not a gravity knife even if he applies the Wrist Flick Test and cannot open the knife, because as 44

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long as someone else can open it with the Wrist Flick Test, the person is subject to arrest and prosecution, and there is no way for a person to make that determination in advance.

SUMMARY OF THE ARGUMENT

1. 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.

It is undisputed that the only way a Common Folding Knife can be deemed a gravity knife is by application of the Wrist Flick Test. Thus, if the Wrist Flick Test cannot provide a person with a basis to know what a legal Common Folding Knife is, it cannot Constitutionally be applied to Common Folding Knives.

The Wrist Flick Test is inherently indeterminate. Because of the built-in bias toward closure that normally keeps the knife closed, whether or not a

Common Folding Knife can be opened with a flick of the wrist is highly dependent on strength, dexterity, and skill of the user; design, materials, and construction of the knife; manufacturing variances, and wear and tear over time; as well as the variable tension on an adjustment screw, if present.

Thus, a person could hold a Common Folding Knife in his hand and never be able to determine that it is legal. If he is unable to flick it open, it does not 45

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mean the knife is legal because Defendants assert that a knife is a gravity knife if some person at any future time can manage to flick it open.

The district court entirely ignored that Plaintiffs’ problem is that no one can possibly make the determination as to which knives are legal. The issue is the ability of Plaintiffs, or anyone, to make that determination going forward. Yet, the district court focused entirely on whether or not Plaintiffs has notice back in 2010 when they were arrested and/or threatened with production, which is not the claim in this lawsuit.

2. The problem of inconsistent results from the Wrist Flick Test is apparent everywhere in the record, and the district court erred by largely ignoring such evidence.

The district court ignored the following crucial evidence: the experience of

John Copeland, Carol Walsh, and Douglas Ritter which showed numerous examples of how the Wrist Flick Test is massively indeterminate and variable (and necessarily so by its very nature); the admissions of the DA and the NYPD

Officers which showed that Defendants, themselves, do not even have a clear understanding of the Wrist Flick Test, nor is there any real source of information and instruction as to the test either for the NYPD Officers or the public; and the

Live Knife Demo which plainly showed that two people applying the Wrist Flick

Test to the same knives could obtain dramatically different results.

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Finally, the district court severely mischaracterized the expert testimony of

Paul Tsujimoto and Bruce Voyles. Contrary to the court’s claim, neither witness was testifying about how the Gravity Knife Law should be interpreted. Instead, these witnesses testified as to the nature, function, and history of the various types of knives at issue to help explain just why attempting to apply the Gravity Knife

Law to Common Folding Knives does not work and necessarily results in variability and indeterminacy.

STANDARD OF REVIEW

The essence of the district court’s errors below is its failure to properly apply the law of Constitutional Vagueness under the Due Process Clause of the

Fourteenth Amendment and the failure to recognize the significance of various facts in the record on that legal issue. Thus, because the district court’s errors are largely errors of law and/or mixed law and fact, the standard of review in this case is de novo. See First Nat. Bank of Cincinnati v. Pepper, 547 F.2d 708 (2d. Cir.

1976).

To the extent there are any findings of fact that require review, because this was almost entirely a trial on paper submissions (except for limited live testimony on June 16, 2016), the factual findings of the district court are entitled to less deference under the clearly erroneous standard of Rule 52(a) than findings based

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on live witness credibility. See Bose Corp. v. Consumers Union of U.S., Inc., 466

U.S. 485, 500 (1984).

ARGUMENT

Plaintiffs’ claim is straightforward. Plaintiffs assert 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.

The Fourteenth Amendment provides in pertinent part:

No State shall . . . deprive any person of life, liberty, or property, without due process of law[.]

U.S. Const. Amend. XIV, § 1.

“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”

Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926); accord Farrell v. Burke,

449 F.3d 470, 485 (2d Cir. 2006).

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A law that burdens constitutional rights or that imposes criminal penalties must meet a higher standard of specificity than a law that merely regulates economic concerns. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 498-99 (1982). This higher standard applies here because the laws at issue impose criminal penalties.

Here, the vagueness that invalidates the application of the Gravity Knife

Law to Common Folding Knives lies is the fact that, as confirmed by the testimony of Rather, the only way a Common Folding Knife can be deemed a gravity knife is by application of the Wrist Flick Test.

Thus, if the Wrist Flick Test cannot provide a person with a basis to know what a legal Common Folding Knife is, it cannot Constitutionally be applied to

Common Folding Knives.

The phrase Common Folding Knife describes a knife with a folding blade in which the blade is held in the closed position by a mechanism which exerts tension on the blade. The blade is designed to remain in the closed position until the blade is manipulated by the hand to overcome the closing tension and move to the open position. The amount of tension varies from knife to knife. Thus, the ease or difficulty in opening a Common Folding Knife varies from knife to knife and from person to person.

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It is undisputed that Common Folding Knives do not open through the force of gravity. This is because gravity cannot overcome the bias toward closure.

Rather, Defendants try to apply the “centrifugal force” prong of the Gravity Knife

Law to Common Folding Knives by attempting to flick them open. If they can be flicked open by anyone, Defendants will arrest and/or prosecute the person in possession of such Common Folding Knives.

Therein lies the problem. The Wrist Flick Test is inherently indeterminate.

Because of the bias toward closure that normally keeps the knife closed, whether or not a Common Folding Knife can be opened with a wrist flick is highly dependent on strength, dexterity, and skill of the user; design, materials, and construction of the knife; manufacturing variances, and wear and tear over time; as well as the variable tension on an adjustment screw, if present.

Thus, a person could hold a Common Folding Knife in his hand and never be able to determine that it is legal. If he is unable to flick it open, it does not mean the knife is legal because Defendants assert that a knife is a gravity knife if some person at any future time can flick it open.

Thus, how will a person unable to, himself, flick the knife open conclude that his knife is not a gravity knife? He cannot ask the store clerk, because if the store clerk is unable to flick the knife open that is not dispositive of the issue.

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He cannot ask a police officer, because the mere fact that a particular police officer cannot flick the knife open is not dispositive. This is what happened when

Copeland asked not one but two police officers if the knife he possessed was legal.

They could not flick it open, and they told him it was. Yet, the next officer could flick it open, and Copeland was arrested for possession of a gravity knife.

The district court entirely ignored that Plaintiffs’ problem, and indeed the problem of everyone wishing to purchase or possess a Common Folding Knife in

New York City, is that no one can possibly determine which knives are legal. The issue is the ability of Plaintiffs, or anyone, to make that determination going forward. Yet, the district court focused entirely on whether or not Plaintiffs has notice back in 2010 when they were arrested and/or threatened with production.6

That is not claim here. This is not a challenge to those 2010 arrests/prosecutions, and recasting the case as such yielded a fundamentally erroneous result. The problem raised in this case is: how can a person know how to choose a legal knife? They cannot. No one can, and the district court missed the essence of the claim entirely and arrived at an incorrect legal conclusion.

6 The district court was reversed in the prior appeal for making a strikingly similar error and should be reversed here as well. See Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015). 51

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The problem of inconsistent results from the Wrist Flick Test is apparent everywhere in the record, and the district court erred by largely ignoring such evidence.

There is the experience of John Copeland, who had two police officers test his knife and find it legal, and then got arrested a year later.

Carol Walsh testified that one of her Smith & Wesson knives was one of the knives the DA purchased undercover and concluded was a gravity knife. Yet another specimen of the same model Smith & Wesson knife was returned to her after the DA applied the Functional Test to the knives Native Leather turned over pursuant to the subpoena. Thus, even the DA experienced inconsistent results testing the very same model knife.

Further, the Kroll Monitors tested Native Leather’s inventory of Buck

Crosslock knives and concluded they were gravity knives. Yet, Walsh, herself, testified that she has tried and has never been able to open a Buck Crosslock knife using the Wrist Flick Test, and she was ostensibly trained by the DA’s Monitors.

Ritter’s testified that he has observed this inconsistency countless times, both with his own efforts at the Wrist Flick Test and others’. Over hundreds of 52

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attempts and observations, Ritter has seen the Wrist Flick Test vary in outcome based on strength, dexterity, training, skill, and repetition.

Rather testified that he thinks a Leatherman is not a gravity knife because he has never seen anyone open one with a wrist flick. Yet, the Live Knife Demo showed that Ritter and Schmutter could both flick open a Leatherman. The Live

Knife Demo further showed that even between skilled knife handlers, one (Ritter) might be able to flick a knife open only with great difficulty (or not at all) and the other (Schmutter) could flick open the very same knives easily.

Ritter has opened knives that others could not, including Victorinox Swiss

Army Knives, and Tsujimoto testified that it is potentially possible to open any folding knife using a wrist flick motion.

Significantly, there is no number of people a person can consult to determine that his Common Folding Knife is not an illegal gravity knife, because no matter how many individuals fail to flick it open, the very next person might be able to do so, and the person in possession of that knife will be subject to arrest and prosecution.

This is the problem faced by Native Leather and any retailer who wishes to sell folding knives. Even if Carol Walsh tests every knife in her store, that does her no good, because nothing about her inability to open a given knife using a wrist flick insulates Native Leather from a decision by the DA to attempt to prosecute if

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an ADA or NYPD officer can later flick the knife open. Thus, while Native

Leather has a procedure in place to reduce its risk of prosecution, it can never really know that the DA will not try to prosecute in the future.

Further, the “Wrist Flick Test” does not specify the number of attempts that must be made in order to open the knife. Defendants may deem a Common

Folding Knife to be a gravity knife no matter how many attempts it takes to open the knife. Thus, even if a knife cannot be opened on the first several attempts, if it can ever be opened with a wrist flick, the person will be subject to arrest and prosecution.

Rather testified that when testing Native Leather’s knives, they decided not to count a knife as a gravity knife if it opened only once in ten attempts. Yet,

Rather admitted that that rule is not a standard in the DA’s office or the NYPD.

The 1 in 10 approach was arbitrarily arrived at only for that day of testing. So arbitrary was that rule, that Rather admitted that they were really guided by what they believed they could prove to a jury beyond a reasonable doubt. That is no standard by which an ordinary person can make a decision as to whether he is in possession of a knife the DA or NYPD would consider a gravity knife.

When is a person entitled to stop flicking and conclude that the knife will not be considered a gravity knife?

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It does not matter. As the record reflects, the DA and the NYPD do not care if the user can flick the knife open. They will deem a knife a gravity knife if they can flick the knife open.

Rather admitted on the stand that a person can test a knife in a store, be unable to open it using the Wrist Flick Test, legally purchase the knife, walk out of the store with the knife, and immediately be arrested because a police officer standing just outside the store could open that knife.

None of the NYPD witnesses had any real experience with the Functional

Test/Wrist Flick Test, nor could they truly explain how it is done.

The Functional Test/Wrist Flick test is not taught at the Police Academy. It is not in the Student Guide, the Patrol Guide, or any Operations Order. In fact, it is not found in any document or policy of the NYPD.

Further, there is no source where an ordinary person could learn the

Functional Test/Wrist Flick Test. Even if the test were well developed within the

DA’s office or the NYPD, which it clearly is not, it would be no more than a secret test, as no one outside the DA or NYPD would know where or how to learn it.

How is a person supposed to predict whether someone at the DA or NYPD might be able to flick a knife open at some point in the future? It makes no difference what the user can do. As long as the DA or the NYPD can flick it open, a person will be arrested and/or prosecuted. All of the reported decisions reflect

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this. In each case, the proofs consisted of the arresting officer flicking the knife open, not the defendant.

The DA made an astonishing admission at oral argument previously before this Court. Counsel took the position that a knife could be perfectly legal one day and then over time turn into a gravity knife. The DA claimed that person has an affirmative duty to constantly test his knife to see if that happens.

But that also does a person no good. As we have seen, it does not matter if the user tests the knife. What counts is if the DA or the NYPD can open the knife.

So no matter how often a person tests his knife, whether he will be arrested depends entirely on the DA and NYPD, not his own testing.

The district court ignored all of this crucial evidence: the experience of John

Copeland, Carol Walsh, and Douglas Ritter which showed numerous examples of how the Wrist Flick Test is massively indeterminate and variable (and necessarily so by its very nature); the admissions of the DA and the NYPD Officers which showed that Defendants, themselves, do not even have a clear understanding of the

Wrist Flick Test, nor is there any real source of information and instruction as to the test either for the NYPD Officers or the public; and the Live Knife Demo which plainly showed that two people applying the Wrist Flick Test to the same knives could obtain dramatically different results.

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In fact, it is of no consequence that the DA testified (and the court found) that Ritter’s Live Knife Demo technique was exaggerated and different than the technique employed by Defendants. That finding merely makes the demo more illustrative, not less. Ritter was the one who had greater difficulty opening many of the knives, notwithstanding his allegedly exaggerated technique, while

Schmutter, with the more subdued and controlled technique, opened the knives much more readily. That stark contrast more clearly highlights the variability sought to be shown via the Live Knife Demo. The district court missed this entirely.

Thus, under Defendants’ application of the Gravity Knife Law, there is truly no way for any person to ever conclude that a given Common Folding Knife is not a gravity knife, and thus, there is no way for the Gravity Knife Law to be applied to Common Folding Knives in a manner that comports with the requirements of

Due Process. This is entirely due to the fact that the defining characteristic of a

Common Folding Knife is that it is designed with a bias toward closure such that it resists opening.

This is all in stark contrast to how the Gravity Knife Law works with a true gravity knife such as the German Paratrooper Knife. Because a true gravity knife is designed to freely move in and out of the handle merely by the force of gravity, none of the uncertainties identified above apply.

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A true gravity knife will open the same way by anyone at all times because little effort is actually required, since there is no resistance built into the knife mechanism. It has no bias toward closure. There is no variation from person to person and no variation from specimen to specimen. True gravity knives do not loosen over time because they are completely loose from the outset. They can be readily opened by centrifugal force.

The foregoing is consistent with the court’s analysis in Irizarry. 509 F.

Supp. 2d at 205. Judge Weinstein realized that because the Husky knife at issue was designed with a bias toward closure, it was not designed as a gravity knife. He recognized that the Gravity Knife Law only makes sense when applied to true gravity knives, that is, knives designed to open by gravity or centrifugal force -- in other words, a knives without a bias toward closure.

Unfortunately New York courts have not taken Judge Weinstein’s lead and have uniformly approved the Wrist Flick Test as a test for a gravity knife.

The problem posed by Defendants’ enforcement practice is illustrated well in the recently decided case People v. Trowells, Ind. No. 3015/2013 (N.Y. Sup. Ct.

Bronx County July 11, 2014), available at http://nylawyer.nylj.com/adgifs/decisions14/072414webber.pdf. Trowells was arrested and prosecuted under circumstances very much like those of Copeland and

Perez. He was not threatening anyone, and he was not using the knife for any

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criminal purpose. Although the court did not specifically identify the knife in question, the court is clearly discussing not true gravity knives but Common

Folding Knives. In particular, the court notes that the knives in question are widely sold across the country, used for purely legitimate purposes, and widely carried by many New Yorkers who do not know that they might be arrested for it.

Id. at 4.

Notable about the opinion is that the court clearly does not understand the difference between true gravity knives and Common Folding Knives, since the opinion recites the history of gravity knives as one continuous time line from the

World War II German Paratrooper Knife to the present -- not realizing that these are two fundamentally different tools. Id. at 3-5.

The court then recognizes the substantial criticism of recent attempts to enforce the Gravity Knife Law, even citing to the arrest of Plaintiff Copeland as one example. Id. at 4-5.

The court went out of its way to highlight two key facts: (1) millions of law abiding people use and carry Common Folding Knives every day for lawful purposes and (2) enforcement of the law has come under considerable criticism, including by the Legislature, due to the seeming harshness and unfairness to the law abiding people caught up in its web.

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This entire problem arises because Defendants are attempting to apply the

Gravity Knife Law to knives to which it was never intended to apply. Paul

Tsujimoto and Bruce Voyles lay out in the record in great detail the mechanics, history, and custom surrounding both true gravity knives and Common Folding

Knives. Common Folding Knives have never been considered gravity knives outside of New York City, and even within the City, that concept is recent.

The district court erroneously disregarded and severely mischaracterized that expert testimony. Contrary to the court’s claim, neither witness was testifying about how the Gravity Knife Law should be interpreted. The court misunderstood that the key function of the testimony of Tsujimoto and Voyles (and also some of

Ritter’s testimony) was to explain why attempting to apply the Gravity Knife Law to Common Folding Knives with a bias toward closure creates such variability and indeterminacy. Once one understands both the mechanical and historical differences between true gravity knives and Common Folding Knives it becomes clear just why attempting to shoehorn Common Folding Knives into the Gravity

Knife Law creates such a massive Due Process problem.

The only Constitutional manner in which the Gravity Knife Law can be applied is as to true gravity knives like the German Paratrooper Knife. There is no

Constitutional way of applying the law to Common Folding Knives because there

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is no way for a person to know when a given Common Folding Knife would be deemed legal under the Gravity Knife Law.

In contrast, since all true gravity knives operate in the same manner, it is easy to identify a true gravity knife. Thus, for the Gravity Knife Law to pass

Constitutional muster, the bright line test to distinguish a legal “pocket knife” from an illegal “gravity knife” under New York law must be whether the knife is designed with a bias toward closure. If so, it is not a gravity knife. Thus,

Defendants should be enjoined from applying the Gravity Knife Law to Common

Folding Knives, and the district court erred in declining to do so.

We know from the Court of Appeals in Dreyden that there is a category of legal folding, locking knives under New York law they call “pocket knives.”

Thus, we know that the Gravity Knife Law was not intended to, and does not, ban all folding locking knives. As a matter of Due Process, Plaintiffs, and others like them, are entitled to know what those are so they can possess and sell them without risking arrest and prosecution.

Since the Gravity Knife Law cannot Constitutionally be applied to Common

Folding Knives because of their bias toward closure, the Gravity Knife Law cannot be applied to folding knives at all.

At its core, this entire case comes down to one simple question. How can a person draw the conclusion that a given locking, folding knife (Common Folding

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Knife) can never be flicked open by anyone? No one can ever draw that conclusion, and therefore no one can ever know that he is in compliance with the

Gravity Knife Law in the way these Defendants started to enforce the law aggressively just seven years ago.

Plaintiffs’ case is not about “close calls” or “estimating rightly.” For the first 50 years of the Gravity Knife Law everyone knew how to comply. Now that the law is being applied against Common Folding Knives, no one can know how to comply.

Because no one can know how to conform his conduct to the manner in which Defendants enforce the Gravity Knife Law, Defendants’ application of the

Gravity Knife Law to Common Folding Knives is void for vagueness and is therefore unconstitutional, and the district court should have entered judgment for

Plaintiffs.

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CONCLUSION

For the foregoing reasons, the Court should reverse the judgment below and direct the entry of judgment in favor of Plaintiffs: (1) declaring that the application of New York’s Gravity Knife Law, N.Y. Penal L. § 265.00(5) and N.Y. Penal L. §

265.01(1), to folding knives is void for vagueness in violation of the Due Process

Clause of the Fourteenth Amendment and (2) permanently enjoining such enforcement.

Respectfully submitted,

/s/ Daniel L. Schmutter Daniel L. Schmutter HARTMAN & WINNICKI, P.C. 74 Passaic Street Ridgewood, NJ 07450 (201) 967-8040 [email protected] Counsel for Plaintiffs-Appellants

June 1, 2017

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate

Procedure, the foregoing brief is in 14-Point Times Roman proportional font and contains 13,995 words and thus is in compliance with the type-volume limitation set forth in Rule 32(a)(8)(B) of the Federal Rules of Appellate

Procedure.

Dated June 1, 2017

/s/ Daniel L. Schmutter Daniel L. Schmutter

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SPECIAL APPENDIX Case 17-474, Document 28, 06/01/2017, 2048740, Page72 of 108

SPECIAL APPENDIX TABLE OF CONTENTS

Order and Opinion, Filed January 27, 2017, Directing the Court to Enter Judgment for Defendants ...... SPA1 Judgment, Filed January 27, 2017 ...... SPA36

Case 17-474, Document 28, 06/01/2017, 2048740, Page73 of 108 Case 1:11-cv-03918-KBF-RLE Document 197 Filed 01/27/17 Page 1 of 35 USDC SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: ______SOUTHERN DISTRICT OF NEW YORK DATE FILED: January 27, ------X 2017 : JOHN COPELAND, PEDRO PEREZ, AND : NATIVE LEATHER, LTD., : : 11 Civ. 3918 (KBF) Plaintiffs, : : OPINION & ORDER -v- : : : CYRUS VANCE, JR., in his Official Capacity as : the New York County District Attorney, and CITY : OF NEW YORK, : : Defendants. : : ------X 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.”

SPA1 Case 17-474, Document 28, 06/01/2017, 2048740, Page74 of 108 Case 1:11-cv-03918-KBF-RLE Document 197 Filed 01/27/17 Page 2 of 35

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

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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

1 This Court initially dismissed plaintiffs’ complaint for lack of standing. (ECF No. 80; see also ECF No. 95.) The Second Circuit vacated and remanded that decision in part, finding that although one of the plaintiffs did not have standing, plaintiffs Copeland, Perez, and Native Leather had standing to bring the instant challenge. See Knife Rights, Inc. v. Vance, 802 F.3d 377 (2d Cir. 2015).

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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

Ritter3 (subject to cross-examination) and a cross-examination of Assistant District

Attorney Rather. Both sides also presented closing arguments.

2 In addition to the papers submitted by the parties, the Court received a motion to file an amicus curiae brief by the Legal Aid Society. (ECF No. 159.) The Legal Aid Society submitted their proposed amicus curiae brief alongside their motion papers. (ECF No. 159-1.) The Court also received an opposition to the motion from defendants (ECF No. 162) as well as a reply from the Legal Aid Society (ECF No. 163). Having considered these submissions, the Court denies the motion by the Legal Aid Society (ECF No. 159). District courts have discretion in deciding whether to accept amicus briefs. Under the particular circumstances presented here, the Court declines to entertain or accept the filing. In their proposed amicus curiae brief, the Legal Aid Society presents various facts outside of the trial record and relating to individuals other than plaintiffs here. In all events, neither the facts presented nor the arguments would alter the outcome of this matter. 3 Ritter is the founder and Chairman of Knife Rights, a former plaintiff in this case. (Ritter Decl. ¶ 1.)

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II. FINDINGS OF FACT4

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,

4 The majority of the facts in the trial record are undisputed. To the extent that the Court must make a finding as between competing assertions, it does so based upon the preponderance of the evidence. 5 New York first prohibited gravity knives in 1958, and the definition of such knives remains the same today. See 1958 N.Y. Laws ch. 107, sec. 1, § 1896. The Court notes that on December 31, 2016, Governor Andrew Cuomo vetoed Assembly Bill 9042-A, entitled: “AN ACT to amend the penal law, in relation to definitions of a switchblade knife and a gravity knife.” (See ECF No. 193.) The vetoed bill, which would have altered the statutory definition of a gravity knife, has no effect on the issues before the Court (and no impact on the Court’s decision).

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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 text6 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,

6 The Court also notes that at least some of the Gravity Knife Statute’s legislative history supports this conclusion. The 1957 Bill Jacket of the Gravity Knife Law included a New York Times article from December 1957 that describes a sponsor of the statute opening a gravity knife by “flick[ing] his wrist sharply downward.” (Ex. D-4 at 20.) Then, as now, knives which could be opened by a flick of the wrist were considered to be particularly dangerous.

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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

7 Portions of this demonstration were videotaped. Plaintiffs’ counsel and Mr. Ritter demonstrated a number of knives, none of which were the make and model of the knives possessed by Copeland and Perez at the time of their arrests. (See June 16, 2016, Tr., ECF No. 191, at 26:09-22.) Furthermore, there was no evidence that either of these two plaintiffs would purchase one of the specific knives demonstrated if allowed to do so. Of the knives demonstrated, only one – a “Buck Crosslock” – was specifically identified as a knife that may have been confiscated from Native Leather or was a knife that Native Leather would sell. (See id. at 24:12-25:10, 26:23-27:04; see also Walsh Decl. ¶ 21.) In all events, there was a distinct difference between the maneuver employed by plaintiffs’ counsel and Ritter and the Wrist-Flick test that is employed by NYPD officers and the D.A.’s Office. Assistant D.A. Rather testified credibly on this point. (See June 16, 2016, Tr., at 72:23-73:18.) Rather testified, and the Court credits, that the motion utilized by plaintiffs’ counsel and Ritter was exaggerated and was not the Wrist-Flick test. (See id.) Accordingly, the Court found the demonstration interesting, but not relevant to the question of whether different applications of the Wrist-Flick test would have different outcomes. 8 Courts have examined whether a knife must open on every attempt in order to be considered a gravity knife and have found that it does not. See, e.g., People v. Smith, 309 A.D.2d 608, 609, 765 N.Y.S.2d 777 (1st Dep’t 2003) (upholding conviction under the Gravity Knife Statute against evidentiary challenge where “the knife malfunctioned on some of the detective’s attempts to operate it”); see also Carter v. McKoy, 2010 U.S. Dist. LEXIS 83246, at *13 (S.D.N.Y. Aug. 9, 2010) (noting that “under New York law, a knife need not work consistently in order to support the finding that it is a gravity knife”). This is plainly correct as the statute does not, on its face, require any particular number of applications of gravity or centrifugal force.

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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

9 The term “Common Folding Knife” used by plaintiffs has no meaning under New York law.

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point to the legislative history of the Gravity Knife Statute10 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

10 Plaintiffs also cite United States v. Irrizary, 509 F. Supp. 2d 198 (E.D.N.Y. 2007) to argue that a folding knife cannot be classified as a gravity knife because of its design. (Plaintiffs’ Opening Trial Brief and Proposed Findings of Fact and Conclusions of Law (“Pltfs’ PFOF”), ECF No. 128, at 14 ¶32.) Irizarry did not involve a vagueness challenge, or a challenge to law enforcement’s practice of using the Wrist-Flick test to identify gravity knives. Rather, in that case, the court held that the arresting officer did not have probable cause to believe that the defendant’s knife was a gravity knife – despite the fact that it opened by application of the Wrist-Flick test – because the knife was “designed, sold, and used as a folding knife” and “was obviously not designed to be opened [by a wrist-flick] and does not readily open through such force.” Irizzary, 509 F. Supp. 2d at 210.

The facts of that case are important and distinguishable from those here. There, the arresting officer could not “readily open” the defendant’s knife by application of the Wrist-Flick test and required “three strenuous attempts” to do so. Irizarry, 509 F. Supp. 2d at 204, 210. In addition, and perhaps based on its particular facts which rendered certain distinctions less meaningful, the court then stated that the knife at issue “was designed and sold as a folding knife,” when the test is functional and not design based.

11 Tsujimoto is currently Vice President of Engineering for Ontario Knife Company and states that he has “spent the last 27 years of [his] 39 year working career in the cutlery industry.” (Tsujimoto Decl. ¶3.) 12 Voyles is currently Editor-at-Large at Knife Magazine, and states that he has been a cutlery journalist and writer since 1977 and has owned a knife auction company since 1999. (Voyles Decl. ¶¶4-5.)

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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

13 Voyles traces the history of gravity knives back to the 1800’s and states that original gravity knives were similar to “German Paratrooper Knives” prevalent during WWII. (See Voyles Decl. ¶¶ 11-13.)

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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;

14 Plaintiffs state: “Whether or not a folding knife actually opens by centrifugal force (as engineers and physicists understand the term) or opens by inertia or a combination of the two has no impact on the vagueness argument.”

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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.)

15 In both types of knives, the same device that creates tension on the blade also locks it in place once open. (Tsujimoto Dep. at 85:7-86:1.) In a liner lock, that device is a metal cutout in the side of the handle, called the liner, which snaps across the back side of the blade as the blade opens to lock it in the open position. (Tsujimoto Dep. at 85:7-15; Tsujimoto Decl. ¶35; Ex. P-12.) In a lock back, that device is a spring-loaded bar that wedges itself into a notch on the blade to prevent it from closing. (Tsujimoto Dep. at 84:17-22, 102:21-103:10; Tsujimoto Decl. ¶35; Ex. P-11.)

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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

16 Plaintiffs acknowledge, as they must, that “it is clear that under New York law, a Common Folding Knife can be considered a gravity knife.” (Reply Mem. at 3.)

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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

17 In his trial declaration, Ritter claims that in his experience, “every individual who attempted a wrist flick maneuver executed it in their own individual manner. There was never any obvious consistency in execution between individuals nor often consistency even by the same individual when conducting multiple attempts at such maneuvers.” (Ritter Decl. ¶ 20.) The Court does not credit this testimony, and finds that that the record supports consistent application of the Wrist-Flick test. 18 There was evidence that when Assistant D.A. Rather and his staff were testing Native Leather’s array of knives, there were some that had different outcomes under the Wrist-Flick test after multiple attempts by different individuals. However, in the sole specific example Rather gave, he discussed a knife that opened only once in ten attempts. (See Rather Dep. 43:12-44:6.) Rather specifically stated that such a knife was not one that the D.A’s office was “going to determine to be a gravity knife.” (Id. 44:07-45:2.) Plaintiffs did not pursue whether there were specific Native Leather knives tested fewer times with different outcomes that were nonetheless deemed gravity knives. 19 Ritter also claims in his trial declaration that on many occasions he was able to open a Common Folding Knife by application of the Wrist-Flick test where someone else was not. (Ritter Decl. ¶ 16.) The Court finds that, even accepting this testimony, the record supports consistent application of the Wrist-Flick test. As a whole, the record does not suggest that the manner of conducting the Wrist- Flick test is, in fact, different from officer to officer.

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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 Walsh is the owner and President of Native Leather.

(Walsh Decl. ¶1.)

In 2010, during an investigation by the New York District Attorney’s Office, investigators purchased knives from Native Leather and subjected them to the

Wrist-Flick test. Upon application of the Wrist-Flick test, investigators determined that Native Leather was, in fact, offering gravity knives for sale to the public.

(Rather Decl. ¶42.) The D.A.’s Office then issued a subpoena to Native Leather, which required it to produce those knives in its inventory that met the statutory definition of a gravity knife under the New York Penal Law. (Ex. P-1; see Rather

Dep. at 16:11-19, 37:8-23; Walsh Decl. ¶4.) After she received the subpoena, Walsh reviewed the Gravity Knife Statute and understood that she could not sell knives

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that met the description of what “the DA’s Office was looking for,” but that she could sell anything outside of that description. (Walsh Dep. at 9:14-22; see also id. at 57:4-12.) Even though she had been in business for a number of years, Walsh was not certain that she had ever read the definition of a gravity knife in the Penal

Law before this time. (Walsh Dep. at 57:4-12.)20 In response to the subpoena,

Walsh collected and provided to the D.A.’s Office “almost every folding knife that

[she] thought could be opened with one hand, with or without gravity or centrifugal force,” for a total of over three hundred knives. (Walsh Dep. at 64:17-65:10.)

The D.A.’s Office subjected each knife to the Wrist-Flick test. Assistant D.A.

Rather either personally tested each knife or observed other members of the District

Attorney’s staff personally test each knife. (Rather Decl. ¶45.) A number opened.

It appears that one or more of those knives opened only after multiple attempts of the Wrist-Flick test by different individuals. (Rather Dep. 43:15-44:06.) However, the record contains significant ambiguity on this point, and in particular, regarding the number of wrist-flick attempts applied to any particular knife, whether two different individuals had different outcomes, and whether in all events knives requiring multiple attempts were designated as gravity knives or were returned to

Native Leather. In short, the Rather testimony on this issue was never clarified by plaintiffs and is therefore useless as proof of any particular point with respect to plaintiffs’ specific knives. For instance, during questioning regarding Native

20 Prior to receiving the subpoena, the only precaution Walsh took to ensure that she was not selling illegal gravity knives was a trip to the 6th precinct, in early 2000, to inquire about “Iceberg Army Navy,” another retail store that had its knife inventory “confiscated” (or so she had heard). (Walsh Dep. at 57:13-59:1.)

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Leather his deposition, plaintiffs asked D.A. Rather: “And did you ever have the circumstance arise where a knife passed the functional test with one person, but failed it with another?” (Rather Dep. 43:15-17.) D.A. Rather responded: “In a fashion. Gravity knives by law don’t have to open each and every time. . . .”

(Rather Dep. 43:18-20.) Plaintiffs continued to question D.A. Rather but framed their questions as hypotheticals instead of focusing specifically on the events that occurred with regard to Native Leather.

The D.A.’s Office retained those knives submitted by Native Leather that the

D.A.’s office determined, by application of the Wrist-Flick test, to be illegal gravity knives. (Rather Dep. at 39:16-40:17, 41:24-43:11; Rather Decl. ¶¶45-46; Walsh Dep. at 65:11-23.) None of the knives that Native Leather provided to the D.A.’s Office were German Paratrooper Knives. (Rather Decl. ¶48.) Each of the knives that functioned as a gravity knife could also be described as a type of folding knife.21

(Rather Decl. ¶47.)

On June 15, 2010, Walsh entered into a deferred prosecution agreement with the D.A.’s Office. (Ex. P-2; see Walsh Decl. ¶12.) She agreed, inter alia, not to sell gravity knives and to personally test Native Leather’s inventory for gravity knives.

(Walsh Decl. ¶¶13, 15.)

Walsh tests knives that she determines need testing based on her experience selling knives for “many, many years.” (Walsh Dep. at 23:9-24:5; see also id. at

66:21-67:4.) For example, Walsh testified that a knife that does not lock in the open

21 Defendants submitted demonstrative videos of counsel opening certain of Native Leather’s knives with application of the Wrist-Flick test. (Rather Decl. ¶¶ 53-55, 58-59, 63, 66; Exs. D-10, D-11, D-14, D-15, D-18, D-20, D-21.)

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position – such as a Swiss Army knife – does not need to be tested because there is no way it will lock automatically upon opening. (Walsh Dep. at 23:14-24.)

Similarly, she testified that a knife that locks in the closed position does not need to be tested because there is no way it could be opened with one hand. (Walsh Dep. at

23:14-21.) Walsh began testing Native Leather’s knives herself in September 2010.

(Walsh Dep. at 42:2-12.) After identifying which knives need to be tested, Walsh applies the Wrist-Flick test. (Walsh Dep. at 24:15-25:10.) If Walsh can’t open a particular knife using the Wrist-Flick test but determines that a “stocky [man]” could open the knife with a wrist-flick, she rejects it and does not place it in her inventory for sale. (Walsh Dep. at 21:15-25:10.) Walsh testified that she understands that certain knives, while not designed to open by the application of gravity or centrifugal force, may nonetheless function as gravity knives. (Walsh

Dep. at 67:16-68:16.)

As part of the deferred prosecution agreement, Walsh also agreed to the appointment of an independent monitor to inspect the books, records, and inventory of Native Leather. (Walsh Decl. ¶13.) Kroll Inc. was selected by the D.A.’s Office to fulfill that role. (Walsh Decl. ¶17; Rather Dep. at 35:13-15.) In May 2011, Kroll employees tested certain of Native Leather’s knives employing the Wrist-Flick test.

(Walsh Decl. ¶20.) Walsh was present at the time. According to Walsh, “if the blade swung out of the knife, it was loose enough to be called a gravity knife”; conversely, “if the blade was snug into the handle [and] it wouldn’t come out,” the

Kroll employees would not classify the knife as a gravity knife. (Walsh Dep. at 18:2-

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19:3.)

2. John Copeland

John Copeland is a resident of Manhattan. In October 2009, Copeland purchased a Benchmade brand knife at Paragon Sports in Manhattan. (Copeland

Decl. ¶3.) In his trial declaration, Copeland states that shortly after purchasing the knife, he showed it to two different NYPD officers and that both officers applied the

Wrist-Flick test to the knife. (Copeland Decl. ¶5.) Copeland testified that because both officers could not open the knife using the Wrist-Flick test, they told him that the knife was legal and returned it to him. (Id.)

Thereafter, Copeland regularly used the knife in connection with his work as a painter and sculptor. (Copeland Decl. ¶¶1, 4.) A year after his initial purchase of the knife, Copeland had the knife clipped to his pocket and was stopped in

Manhattan by Sergeant Noel Gutierrez and Detective Ioannis Kyrkos of the NYPD.

(Copeland Decl. ¶7; Gutierrez Decl. ¶¶4-5, Kyrkos Decl. ¶¶4-5.) According to

Sergeant Gutierrez and Detective Kyrkos, Copeland told the officers that he used the knife in connection with his employment as a mechanic. (Gutierrez Decl. ¶7;

Kyrkos Decl. ¶9.) In Copeland’s presence, Detective Kyrkos applied the Wrist-Flick test to Copeland’s knife by gripping the handle of the knife and flicking his wrist in a downward motion. (Gutierrez Decl. ¶¶8-9, Kyrkos Decl. ¶¶7-8.) The knife opened on the first attempt and the blade locked into place. (Gutierrez Decl. ¶8, Kyrkos

Decl. ¶7.) The officers then placed Copeland under arrest for Criminal Possession of a Weapon in the Fourth Degree in violation of New York Penal Law § 265.01(1).

(Gutierrez Decl. ¶11, Kyrkos Decl. ¶11.) Prior to the events giving rise to his arrest 19

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for gravity knife possession, Copeland knew that the New York Police Department employed the Wrist-Flick test to identify illegal gravity knives. (Copeland Decl. ¶5.)

The Court finds that Copeland’s knife met the definition of a gravity knife and the ability of Copeland’s knife to open by application of the Wrist-Flick test immediately prior to his arrest, as compared to its inability to open a year earlier, was due to usage over time.

At the precinct, Copeland was given a Desk Appearance ticket and was then released. (Copeland Decl. ¶7, Gutierrez Decl. ¶¶11-12.) On November 3, 2010,

Sergeant Gutierrez signed a criminal court complaint charging Copeland with possession of a gravity knife. (Gutierrez Decl. ¶¶13, 22-25; Ex. D-3.) On January

26, 2011, Copeland accepted an Adjournment in Contemplation of Dismissal.

(Copeland Decl. ¶9.)

Both Sergeant Gutierrez and Detective Kyrkos submitted trial declarations stating that they apply the Wrist-Flick test to determine whether a knife is a gravity knife. (Gutierrez Decl. ¶¶13, 17; Kyrkos Decl. ¶¶13, 16-17.) Both officers testified that they hold the handle of a knife and flick their wrist to apply centrifugal force – if the blade exits the handle and locks into place, the knife is a gravity knife. (Gutierrez Decl. ¶17; Kyrkos Decl. ¶17.) Sergeant Gutierrez and

Detective Kyrkos learned how to apply the Wrist-Flick test during their time as probationary officers by observing other officers use the test, as well as through their own first-hand experience during that time. (Gutierrez Decl. ¶16; Kyrkos

Decl. ¶15.) Both Sergeant Gutierrez and Detective Kyrkos have consistently, and

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exclusively, used the Wrist-Flick test to identify gravity knives over the course of their careers. (Gutierrez Decl. ¶¶17-18, Kyrkos Decl. ¶¶16-18.)

In his trial declaration, Copeland states that he will not purchase a folding knife in New York similar to the Benchmade brand knife that he was previously arrested for because he fears future arrest and prosecution. (Copeland Dec. ¶ 11.)

3. Pedro Perez

Pedro Perez also resides in Manhattan. In approximately April 2008, he purchased a Gerber brand folding knife from a retailer in Manhattan. (Perez Decl.

¶4.) The knife had a stud mounted on the blade that enabled the user to open it with one hand by “swivel[ing]” the blade open with his thumb. (Perez Decl. ¶5.)

Perez, who is a “purveyor of fine arts,” regularly used the knife to cut canvas and open packaging. (Perez Decl. ¶¶1, 3, 5.) Two years after Perez purchased the knife, on April 15, 2010, Lieutenant Luke observed the knife clipped to the pocket of

Perez’s pants and stopped Perez inside a New York City subway station. (Perez

Decl. ¶6; Luke Decl. ¶¶4-11.) Police Officers Julissa Sanchez and Ray DeJesus were present with Lieutenant Luke when he stopped Perez. (Luke Decl. ¶4-11.) All three officers were assigned to the Anti-Crime Unit. (Luke Decl. ¶4.)

In Perez’s presence, Lieutenant Luke applied the Wrist-Flick test to Perez’s knife by gripping the handle of the knife and flicking his wrist in a downward motion away from his body.22 (Luke Decl. ¶12.) The knife opened on the first

22 Lieutenant Luke, who is now retired, served as an officer in the New York Police Department for twenty-two years and has been involved in approximately one hundred and fifty arrests for possession of a gravity knife. (Luke Decl. ¶¶1, 3, 21.) Lieutenant Luke consistently and exclusively used the Wrist-Flick test to identify gravity knives over the course of his career. (Luke Decl. ¶28.) 21

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application of the Wrist-Flick test and the blade locked in place automatically.

(Luke Decl. ¶13.) Perez was then arrested. (Luke Decl. ¶15.) The arrest was assigned to Police Officer Angel Guerrero, who completed a Desk Appearance ticket charging Perez with possession of a gravity knife in violation of Penal Law §265.01.

(Luke Decl. ¶16; see also Perez Decl. ¶7.) The Court finds that Perez’s knife met the definition of a gravity knife.

In his trial declaration, Perez states that the officers who arrested him could not open Perez’s knife using the Wrist-Flick test but inexplicably charged him with possession of a gravity knife because it was “theoretically” possible to do so. (Perez

Decl. ¶7.) The Court has no basis to credit this statement over the sworn statement of Lieutenant Luke, who was present on the scene at the time of the arrest. Perez did not contest the charge and accepted an Adjournment in Contemplation of

Dismissal and agreed to perform seven days of community service. (Perez Decl. ¶8.)

Indeed, the Court views this fact as some evidence that Perez understood his knife functioned as a gravity knife. But, in addition, the plaintiff carries the burden of proof in this matter and so when weighing statements of equal credibility, a tie goes to the defendants.

Lieutenant Luke estimates that he has personally tested between forty and fifty gravity knives. (Luke Decl. ¶24.) Based on his training and experience, Lieutenant Luke understands a gravity knife to be a folding knife that possesses two characteristics: the knife will open via gravity or the application of centrifugal force and, once open, the blade will lock into place automatically. (Luke Decl. ¶25.) Without exception, the gravity knives that Lieutenant Luke encountered during his career were folding knives. (Luke Decl. ¶24.) In Lieutenant Luke’s experience, the resistance in a folding knife such as the one carried by Perez can change over time, either through regular use or intentional modification. (Luke Decl. ¶30.) Lieutenant Luke never charged someone with possession of a gravity knife if the knife in question did not open after the first or second application of the Wrist-Flick test, nor would he charge someone with possession of a gravity knife if Lieutenant Luke could open the knife via the Wrist-Flick test but another officer could not. (Luke Decl. ¶31.)

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In his trial declaration, Perez states that he will not purchase a folding knife in New York similar to the Gerber brand knife that he was previously arrested for because he fears future arrest and prosecution. (Perez Dec. ¶ 10.)

III. CONCLUSIONS OF LAW

As the factual findings above detail, each of plaintiffs’ knives met both of the statutory requirements under the Gravity Knife Law. The knives which plaintiffs possessed at the time of their arrests (or, in the case of Native Leather, those retained by the D.A.’s Office after compliance with the subpoena), opened with application of the Wrist-Flick test. Upon opening, the blades of such knives locked in place.

Plaintiffs now assert an as-applied constitutional challenge to the validity of the Gravity Knife Statue. The Gravity Knife Statute has been subject to a number of previous vagueness challenges, including as to the definitional provision. See, e.g., Herbin, 86 A.D.3d at 446-447. Challenges to the constitutionality of a criminal statute on the basis of vagueness are brought pursuant to the guarantee in the

Fourteenth Amendment that “No State shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. Amend. XIV, § 1. “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926); accord Farrell v. Burke, 449 F.3d 470, 485 (2d

Cir. 2006).

A law that burdens constitutional rights or that imposes criminal penalties 23

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must meet a higher standard of specificity than a law that merely regulates economic concerns. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 498-99 (1982); see also N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804

F.3d 242, 265 (2d Cir. 2015), cert. denied sub nom. Shew v. Malloy, 136 S. Ct. 2486,

195 (2016). This higher standard applies here because the Gravity Knife Law at issue imposes criminal penalties.

Based on these principles, 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.” N.Y. State Rifle & Pistol

Ass’n, Inc., 804 F.3d at 265 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).

Accordingly, “[a] statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” VIP of Berlin, LLC v.

Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010) (quoting Hill v. Colorado, 530 U.S.

730, 732 (2000)).

Throughout this litigation, plaintiffs have consistently characterized their claim as an “as-applied” challenge to the Gravity Knife Statute. (See, e.g., Amended

Complaint ¶60 (“The Due Process Clause of the Fourteenth Amendment invalidates

Penal Law §§ 265.01(1) and 265.00(5) as void for vagueness, as applied to Common

Folding Knives that are designed to resist opening from their folded and closed

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position.”); Pltfs’ PFOF, at 43 (“Plaintiffs’ claim is straightforward. Plaintiffs assert 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.”) This characterization, however, “is in significant tension with

[plainitffs’] general failure to focus narrowly on the actual conduct in which they are engaged or would like to be engaged.” Expressions Hair Design v. Schneiderman,

808 F.3d 118, 130 (2d Cir. 2015), cert. granted, 137 S. Ct. 30 (2016).

“A facial challenge is an attack on a statute itself as opposed to a particular application.” City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2449 (2015). Such challenges “are generally disfavored,” Dickerson v. Napolitano, 604 F.3d 732, 741

(2d Cir. 2010), and are “the most difficult . . . to mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987). Outside of the First Amendment context, a facial challenge generally must show that “no set of circumstances exits under which the [law] would be valid.” Dickerson, 604 F.3d at 743 (alteration in original)

(quoting Salerno, 481 U.S. at 745); see Vill. of Hoffman Estates, 455 U.S. at 497. In contrast, an as-applied challenge requires that a plaintiff show that the challenged statute is unconstitutional when applied to the particular facts of his or her case.

See Farrell, 449 F.3d at 486; see also Dickerson, 604 F.3d at 745 (“To successfully make an as-applied vagueness challenge, the plaintiff must show that section 14-

107 either failed to provide them with notice that the possession of their badges was

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prohibited or failed to limit sufficiently the discretion of the officers who arrested them under the statute.”) (emphasis in original).

As noted above, plaintiffs frame their challenge to the Gravity Knife Statute as an applied challenge to all Common Folding Knives – defined by plaintiffs as knives that are “designed to resist opening from the closed position.” Plaintiffs have not narrowed their challenge, however, to their specific conduct or specific Common

Folding Knives (i.e. those that prompted the previous enforcement actions against plaintiffs).23 (See, e.g., Pltfs’ PFOF at 1 (“[N]o-one can determine any longer whether a particular knife in their possession will be deemed illegal or prohibited”);

Pltfs’ PFOF at 53 ¶ 55 (“At its core, this entire case comes down to one simple question. How can a person draw the conclusion that a given locking, folding knife

(Common Folding Knife) can never be flicked open by anyone? No one can ever draw that conclusion.”)) In this way, plaintiffs’ challenge resembles a pre- enforcement facial challenge. See N.Y. State Rifle & Pistol Ass’n, Inc., 804 F.3d at

265 (“Because plaintiffs pursue this ‘pre-enforcement’ appeal before they have been charged with any violation of law, it constitutes a ‘facial,’ rather than ‘as-applied,’ challenge.”) This has caused some confusion in this case, which the Court sought to address during the closing-arguments.

In all events, for the reasons described below, plaintiffs’ challenge fails whether it is considered an as-applied challenge or a facial challenge. On the record before it, the Court concludes that the Gravity Knife Statute was, and will continue

23 As explained by the Second Circuit, plaintiffs’ standing to bring the instant challenge is predicated on their desire “to engage in the very conduct that prompted defendants’ prior enforcement action[s].” Knife Rights, Inc., 802 F.3d at 385, 387 (emphasis added).

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to be, constitutionally applied to plaintiffs. This determination necessarily means that the Gravity Knife Statute is not unconstitutional in all of its applications (i.e. on its face).24 The Court finds that none of the plaintiffs has demonstrated that the many hypotheticals the parties have so vigorously debated are in fact reasonably likely to occur to him or her.

A. Notice

“The first way that a law may be unconstitutionally vague as applied to the conduct of certain individuals is ‘if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.’” VIP of Berlin,

LLC, 593 F.3d at 187 (quoting Hill, 530 U.S. at 732). In determining whether a statute fails to provide people of ordinary intelligence with a reasonable opportunity to understand what conduct it prohibits, courts look to see whether individuals had fair notice or warning of such prohibitions. Hill, 530 U.S. at 732; see VIP of Berlin,

LLC, 593 F.3d at 187. The Court asks whether “the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” VIP of Berlin, LLC, 593 F.3d at 187; see also Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008). To comply with the notice element requires that “[the] statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.”

Mannix v. Phillips, 619 F.3d 187, 197 (2d Cir. 2010) (quotation marks omitted). The

24 Similarly, the Court finds that the statute is not “permeated with vagueness.” N.Y. State Rifle & Pistol Ass’n, Inc., 804 F.3d at 265; see City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (plurality). This is not to say, however, that the statute could not be improved upon. Many statutes that pass constitutional muster may nonetheless benefit from close attention to possible improvements. That is so here.

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standard is objective and it is therefore irrelevant “whether a particular plaintiff actually received a warning that alerted him or her to the danger of being held to account for the behavior in question.” Dickerson, 604 F.3d at 745.

“[T]he test does not demand meticulous specificity in the identification of the proscribed conduct.” United States v. Coppola, 671 F.3d 220, 235 (2d Cir. 2012)

(quotation omitted). Only an “unexpected and indefensible” interpretation of a statute that gives a defendant “no reason to even suspect that his [or her] conduct might be within its scope” will violate the notice element. United States v. Smith,

985 F. Supp. 2d 547, 588 (S.D.N.Y. 2014) (quotations omitted); see Mannix, 619

F.3d at 199 (rejecting vagueness claim where New York courts had previously ruled that conduct similar to the defendants’ satisfied the elements of the challenged statute); see also Smith, 985 F. Supp. 2d at 588 (“[I]t is not only the language of a statute that can provide the requisite fair notice; judicial decisions interpreting that statute can do so as well”).

The Court finds that plaintiffs’ had adequate notice that their conduct was prohibited under the Gravity Knife Statute. Each of plaintiff Copeland and Perez’s knives opened on the first Wrist-Flick test applied. The knives confiscated from plaintiff Native Leather also opened by application of the Wrist-Flick test. As the

Court has already explained, it is clear from the statutory text that the Wrist-Flick test involves the use of centrifugal force. Furthermore, the New York Court of

Appeals, as well as lower New York courts and juries have all found the existence of centrifugal force based on the Wrist-Flick test. See, e.g., Sans, 26 N.Y.3d at 17;

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Herbin, 927 N.Y.S.2d 54; Neal, 913 N.Y.S.2d 192, 194 (1st Dep’t 2010). Both the statutory text and these judicial decisions provided plaintiffs with the requisite notice that their conduct was prohibited.

In support of their position, plaintiffs have proffered numerous hypotheticals throughout this litigation. 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.” (Reply Mem. at 7-8.) Plaintiffs also imagine a situation where someone buys a knife, tests such knife inside the store and the knife fails the Wrist-

Flick test, but then exits the store moments later where an officer is able to successfully perform the Wrist-Flick test to the same knife. (See June 16, 2016, Tr.,

ECF No. 191, at 25:07-21.) Plaintiffs claim that no one possessing a folding knife

“can ever be sure he possesses a legal pocket knife versus an illegal gravity knife, because the test results are highly dependent on the strength, dexterity, skill, and training of the individual employing the test, the particular specimen of the knife, and other highly variable and uncertain characteristics.” (Id.) Similarly, plaintiffs argue that “there is no number of people a person can consult to determine that his

Common Folding Knife is not an illegal gravity knife, because no matter how many individuals fail to flick it open, the very next person might be able to do so, and the person in possession of that knife will be subject to arrest and prosecution.” (Pltfs’

PFOF, at 47 ¶ 19.) With regards to Copeland and Perez, plaintiffs claim that “no

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matter how many times [they] tr[y] and fail[] to flick a folding knife open, as long as any police officer, anywhere, at any time in the future can flick the knife open using the technique the police use to test folding knives, [they] would be subject to arrest.”

(Pltfs’ PFOF at 19 ¶ 55, 21 ¶ 64.)

Defendants assert, with effect, that the many interesting hypotheticals that plaintiffs have described are just that – hypotheticals. Ultimately, according to defendants, the particular plaintiffs before the Court bear the burden of proving that the statute is unconstitutional as to them, and this plaintiffs have not done.

See VIP of Berlin, LLC, 593 F.3d at 189 (noting that the “pertinent issue [] is not whether a reasonable person . . . in general” would know what the statute prohibits, but rather whether a reasonable person in the plaintiffs specific circumstance would know that their conduct was prohibited). The Court agrees. Despite the various hypotheticals raised by plaintiffs, there is no evidence that any of the plaintiffs tried but were unable to open their knives by application of the Wrist-Flick test.25 Nor is there evidence that the officers who arrested plaintiffs Copeland and Perez, as well as those individuals at the D.A.’s Office who tested the knives confiscated from plaintiff Native Leather, possessed any special strength, skill, or dexterity.

“What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved;

25 The Court noted in its Findings of Fact that two NYPD officers applying the Wrist-Flick test a year before plaintiff Copeland’s arrest were unsuccessful in causing the blade of his knife to open. As the Court found above, however, the ability of Copeland’s knife to open by application of the Wrist-Flick test by Detective Kyrkos immediately prior to his arrest, as compared to its inability to open a year earlier, was due to usage over time.

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but rather the indeterminacy of precisely what that fact is.” United States v.

Williams, 553 U.S. 285, 306 (2008). The Gravity Knife Statute provides clear notice of the “incriminating fact” to be proven – namely, the blade of the knife must open and lock into place in response to gravity or centrifugal force – and the statute does not run afoul of the Fourteenth Amendment simply because the owner claims

“difficult[y]” determining whether that fact has been proven.

In an analogous case, the Supreme Court rejected a vagueness challenge to a statute that criminalized the mailing of firearms that “could be concealed on the person.” United States v. Powell, 423 U.S. 87, 88 (1975). The defendant, a female, was convicted for mailing a sawed-off shotgun that was twenty-two inches in length.

Id. at 93. The statute did not specify whether the “person” against whom to measure capability of concealment was to be “the person mailing the firearm, the person receiving the firearm, or, perhaps, an average person, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season.” Id. (quotation omitted). Attributing the “commonsense meaning” to the statute that the person would be of “average” stature and dress, the

Court upheld the statute and further noted that the defendant, in mailing the shotgun, assumed the risk that a jury would conclude that her conduct fell within the statute. Id. at 93-94. New York’s Gravity Knife Law criminalizing knives that have “a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force” gives no less adequate notice – and,

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as discussed below, no less sufficient standards for enforcement – than a law that proscribes the mailing of a “concealable firearm.”

Plaintiffs assert that the current District Attorney, Cyrus Vance, Jr., and the

City have moved away from an interpretation of the Gravity Knife Statute that had been enforced with “clarity and predictability” for fifty years to one that treats

“nearly any ordinary folding knife as an illegal ‘gravity knife.’” (Pltfs’ PFOF at 1.)

According to plaintiffs, this alteration of a decades-old interpretation has led to unconstitutional unpredictability and “no-one can determine any longer whether a particular knife in their possession will be deemed illegal or prohibited.” (Id.) The record contradicts these arguments, however. As noted, the evidence supports consistent, continued application of Wrist-Flick test. As defendants asserted, that same application was applied to plaintiffs, and there is no factual basis to believe that it will not be applied similarly to plaintiffs in the future.

B. Arbitrary and Discriminatory Enforcement

“The second way in which a statute can be found unconstitutionally vague is if the statute does not ‘provide explicit standards for those who apply it’” in order to avoid arbitrary and discriminatory enforcement. VIP of Berlin, LLC, 593 F.3d at

191 (quoting Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007)). Having concluded that the Gravity Knife Statute provided plaintiffs with sufficient notice, the Court asks: whether “(1) the ‘statute as a general matter provides sufficiently clear standards to eliminate the risk of arbitrary enforcement;’ or (2) ‘even in the absence of such standards, the conduct at issue falls within the core of the statute’s prohibition, so that enforcement before the court was not the result of the 32

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unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.’” Id. (quoting Farrell, 449 F.3d at

494); see also Dickerson, 604 F.3d at 748.

For largely the same reasons that the statute gave plaintiffs sufficient notice, on the record before the Court, the Court concludes that the Gravity Knife Statute provides sufficiently clear standards. There is no evidence of any arbitrary and discriminatory enforcement of the Gravity Knife Law. To the contrary, the record contains ample evidence that NYPD officers are trained in an appropriate manner on the correct definition of a gravity knife under applicable law. The record fully supports that the NYPD generally, and with respect to plaintiffs here, apply that definition via the Wrist-Flick test in a consistent manner.

Again, plaintiffs assert that the Wrist-Flick test is “subjective, variable and indeterminate.” (Pltfs’ PFOF at 3.) According to plaintiffs, the Wrist-Flick test allows for the possibility that different units of the same model knife could have different legal statuses: one unit could pass the Wrist-Flick test (e.g. not open) and be deemed lawful; another unit could fail and be deemed to be a gravity knife and therefore unlawful. Or, worse still, if two different people perform the test one after another, with the first Wrist-Flick test failing to open the blade and the second succeeding, the same knife, tested at relatively the same time, could be both a lawful folding knife and an unlawful gravity knife. (Id.) Similarly, plaintiffs argue:

“If a person encounters an NYPD officer on a day the officer is rested and strong, he may be arrested for possession of a gravity knife, while another person may

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encounter the same officer at the end of his shift when he is tired. Both individuals could be in possession of identical knives, yet one could be arrested and the other not, merely due to the officer’s physical state at the time.” (Id. at 8.)

Again, the Court emphasizes that the various hypotheticals plaintiffs present are not supported by the record. Rather, the record establishes that NYPD officers are trained in an appropriate manner and apply the Wrist-Flick test in a consistent manner. If one of the many hypotheticals that plaintiffs describe does indeed arise, plaintiffs “could bring an ‘as applied’ vagueness challenge, grounded in the facts and context of [that] particular set of charges.” N.Y. State Rifle & Pistol Ass’n, Inc., 804

F.3d at 266. The hypotheticals plaintiffs raise cannot, however, support their challenge here. See id.

Alternatively, even a statute that provides “what may be unconstitutionally broad discretion if subjected to a facial challenge” may still be upheld on an as- applied challenge “if the particular enforcement at issue [is] consistent with the core concerns underlying the [statute] such that the enforcement did not represent an abuse of the discretion afforded under the statute.” Dickerson, 604 F.3d at 748

(citations and internal quotation marks omitted). Here, plaintiffs’ conduct plainly fell within the core of the Gravity Knife Statute.

As previously noted, plaintiff Copeland and Perez’s knives opened on the first application of the Wrist-Flick test. And plaintiffs did not adduce evidence regarding how many applications of the Wrist-Flick test were necessary to open those knives confiscated from native leather that did not open on the first application of the

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Wrist-Flick test. Furthermore, the officers who arrested plaintiffs Copeland and

Perez, as well as those individuals at the D.A.’s Office who tested the knives confiscated from plaintiff Native Leather, were nothing but average in all relevant respects and did not possess any special strength, skill, or dexterity. Prohibiting knives that open by the use of centrifugal force in the manner that plaintiffs’ knives opened falls squarely within the core concerns underlying the Gravity Knife

Statute. Even if the Gravity Knife Statute does not provide clear enforcement standards, its enforcement against plaintiffs “was not the result of ‘unfettered latitude that law enforcement officers and factfinders might have in other, hypothetical applications of the statute.’” VIP of Berlin, LLC, 593 F.3d at 193

(quoting Farrell, 449 F.3d at 494); see Thibodeau, 486 F.3d at 69. In short, this is not a case where one of the many implausible hypotheticals that plaintiffs present actually occurred.

IV. CONCLUSION

The Clerk of Court is directed to enter judgment for defendants and to terminate this action.

SO ORDERED.

Dated: New York, New York January 27, 2017

______KATHERINE B. FORREST United States District Judge

SPA35 Case 17-474, Document 28, 06/01/2017, 2048740, Page108 of 108 Case 1:11-cv-03918-KBF-RLE Document 198 Filed 01/27/17 Page 1 of 1 USDC SDNY DOCUMENT ELECTROELECTRONICALLYNI CALLY FILED

UNITED STATES DISTRICT COURT DOC#: I SOUTHERN DISTRICT OF NEW YORK DATE FILED: n/f .;y7~/h h 1l ------)(______------X JOHN COPELAND, PEDRO PEREZ, AND NATIVE LEATHER, LTD., Plaintiffs, 11II CIVIL 3918 (KBF)

-v- JUDGMENT

CYRUS VANCE, JR., in his Official Capacity as the New York County District Attorney, and CITY OF NEW YORK, Defendants. ------)(______------X

Whereas this action having come before the Court, and the matter having come before the

Honorable Katherine B. Forrest, United States District Judge, and the Court, on January 27,2017,27, 2017,

having rendered its Opinion & Order directing the Clerk of Court to enter judgment for Defendants

and to terminate this action, it is,

ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the

Court's Opinion & Order dated January 27,27,2017, 2017,judgment judgment is entered for Defendants; accordingly,

the case is closed.

Dated: New York, New York January 27,27,2017 2017

RUBY J. KRAJICK

Clerk of Court BY:

Deputy Clerk

SPA36