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Mark Hamblett, New York Law Journal

September 23, 2015

A challenge to New York City's enforcement of the laws banning gravity knives and switchblades
has been revived by the U.S. Court of Appeals for the Second Circuit.

The circuit found that two individuals and a business that were prosecuted under state laws
§265.0(5) and §265.01(1) have standing to seek declaratory and injunctive relief in the case,
Knife Rights, Inc. v. Vance, 13-4840-cv.

The plaintiffs are attacking the enforcement of the laws as vague as applied, saying police
filed charges against them for knives that don't qualify as switchblades or gravity knives.

Their case was thrown out in 2013 for lack of standing by Southern District Judge Katherine
Forrest, who also dismissed for lack of standing two associations: name plaintiff Knife Rights,
Inc. and Knife Rights Foundation.

On Tuesday, Judges Robert Katzmann, Amalya Kearse and Reena Raggi upheld the dismissal of the
associations but reversed the dismissal of claims brought by the individuals, John Copeland and
Pedro Perez, and the business, Native Leather, Ltd.

Copeland, an artist, and Perez, an art dealer, routinely carry folding knives for their work.
They were prosecuted in 2010 in Manhattan.

Switchblades open by putting pressure on a button, a spring or other device in the handle.
Gravity knives, however, are defined as "any knife which has a blade that 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."

The plaintiffs in their complaint said the city has enforced the law since the 1950s against
knives that lack any "mechanical resistance (or bias) against opening from the closed positions
that must be overcome" in order to open them.

But recently, they claimed, the city has been criminalizing the possession and sale of any
folding knives, even those "designed to resist opening from the closed position." They argue
that just because some unknown person could flick open a folding knife doesn't mean that they
would be able to do so, and so they remain unsure of whether their possession of folding knives
is criminal.

Copeland said he showed New York City police officers his "benchmade" knife on two occasions.
When they were unable to flick it open, they handed it back to him and said it was fine. But
when he was stopped October 2010, the officers who stopped him were able, using force, to flick
the knife open, so they gave him a desk appearance ticket.

While both Copeland and Perez received adjournments in contemplation of dismissal, they
asserted before Forrest a continuing interest in carrying the knives.

Native Leather was charged in 2010 as part of an initiative by Manhattan District Attorney
Cyrus Vance Jr. in which he pursued seven retailers who ultimately paid almost $1.8 million
in fines.

Native Leather entered into a deferred prosecution agreement with Vance's office in which it
paid a fine, forfeited some folding knives and agreed to desist from selling gravity knives in
the future. As part of the compliance deal, an employee at the store tests each knife with a
wrist-flicking action.

After Forrest dismissed the action because the plaintiffs failed to establish an "injury in
fact," the plaintiffs headed to the Second Circuit where argument was held on Jan. 13.

Raggi, who wrote the court's opinion, said that for purposes of standing, a plaintiff has to
show a "credible threat sufficient to satisfy the imminence requirement of injury." Native
Leather, she said, wants to sell folding knives it does not believe violate §265.01(1).

"It does not do so, however, because it can confidently determine such knives defendants will
deem proscribed gravity knives," Raggi said. "This professed fear of prosecution is hardly
conjectural or hypothetical, given that defendant Vance recently identified Native Leather as a
§265.01(1) violator and pursued enforcement action against it."

The same was true of Copeland and Perez, where "nowhere in the record of this litigation have
defendants disavowed that they would charge Copeland and Perez in the same circumstances," she
said.

"Because these circumstances demonstrate a credible threat of prosecution, neither Copeland nor
Perez is required to pursue arguably illegal activity or to expose himself to criminal liability
before bringing suit to challenge the constitutionality of the law threatened to be enforced,"
she said.

On Knife Right and Knife Rights Foundation, the circuit agreed there was a lack of standing,
as it rejected as unpersuasive the two associations' argument that they had to spend money to
oppose the city's prosecution of their members under the laws.

Daniel Schmutter, partner at Hartman & Winnicki in Ridgewood, New Jersey, represents the
plaintiffs.

"I'm very pleased the court recognized the right in this case to proceed on the merits against
the unconstitutional application of this law by the D.A. and the city," Schmutter said.

Assistant District Attorneys Benjamin Rosenberg and Patricia Bailey represent Vance.

Vance spokeswoman Joan Vollero noted in a statement that the circuit took no position on the
merits of the plaintiffs' claim and said the city "will continue to litigate the remaining
portions of the case in district court."

Senior Counsel Michael Pastor and Counsel Kristin Helmers of the Law Department defended the city.

Article URL: http://www.newyorklawjournal.com/id=1202737886226/Circuit-Finds-Standing-to-Challenge-Knife-Law-Enforcement?kw=Circuit%20Finds%20Standing%20to%20Challenge%20Knife%20Law%20Enforcement&cn=20150922&pt=Daily%20News&src=EMC-Email&et=editorial&bu=New%20York%20Law%20Journal
 

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