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Foes of 'Gravity Knife' Ban Ask for SCOTUS Review on Vagueness Grounds

A gravity knife.

Opponents of New York’s ban on so-called gravity knives have asked the U.S. Supreme Court to step in and address what the writ claims is a circuit split over vagueness constitutional challenges highlighted by the suit.

The petition to the high court comes after the three petitioners—two individuals who were prosecuted by Manhattan DA Cyrus Vance Jr.’s office and a retailer fined over its sale of certain knives—saw the U.S. Court of Appeals for the Second Circuit in June 2018 affirm the district court’s ruling in favor of prosecutors and police.

At the core of the suit is the debate about how to determine whether a knife fits the description of an illegal gravity knife. While the state’s 50-year-old law seems to clearly target switch blades, butterfly knifes and other similar items that open with a specific kind of ease, the application by the New York City police department and Vance’s office create an impossible situation, according to opponents.

The wrist-flick test police and prosecutors use in Manhattan means that if anyone, anywhere can flick his or her wrist and have the knife open, then the knife is a gravity knife.

The Second Circuit affirmed the district court’s favorable ruling for Manhattan law enforcement, finding that the arguments were actually facial challenges to the law.

The writ argues that the Second Circuit “steadfastly refuses” to adopt the evolved law on vagueness challenges in the wake of 2015’s Johnson v. United States and its progeny, 2018’s Sessions v. Dimaya. The new legal argument, the writ claims, goes against the theory that a vague provision is constitutional simply because something, somewhere could fall within it.

Yet the Second Circuit continues to hearken back to prior precedent in 1987’s United States v. Salerno, which holds the much more strict interpretation that a law must be vague in each and every instance for it to be unconstitutional. This, despite the fact the Fourth and Eighth circuits have conformed their own practices to the Johnson and Dimaya rulings.

“Courts frequently improperly use the Salerno rule and the facial/as applied dichotomy as a gatekeeping tool to stop cases in their tracks in order to avoid consideration of their constitutional merits,” the writ argues. “This case presents an excellent vehicle to confirm that a court may not reject a vagueness challenge to a statute merely because it can envision one constitutional application of that statute and without even hearing the merits of the challenge.”

On Tuesday, the Legal Aid Society filed an amicus brief motion in favor of the high court taking the case on.

“Our clients arrested for gravity knife possession are innocent, working class New Yorkers criminalized by an overbroad and flawed statute,” said Martin LaFalce, staff attorney with the Manhattan criminal defense practice. “As long as this law remains on the books, and up to the varying interpretation of law enforcement, communities of color—the main population persecuted by this law—will continue to suffer.”

A spokesman for the Manhattan DA’s Office declined to comment.

The petitioners are represented in the matter by Hartman & Winnicki attorney Daniel Schmutter. In a statement he said the case "presents a clear split in the circuits on a threshold issue broadly impacting how civil rights cases are litigated."

"We think this is an ideal opportunity for the court to provide importance guidance to the lower courts in this regard," he said.

Related:

Second Circuit Upholds New York State 'Gravity Knife' Ban



Cuomo Vetoes Bill to Permit Some Kinds of Knife Blades



Judge Shows Skill in Flicking Gravity Knife During Bench Trial