Knife Rights, Inc. v. Vance
| Decision Date | 22 September 2015 |
| Docket Number | Docket No. 13–4840–cv. |
| Citation | 802 F.3d 377 |
| Parties | KNIFE RIGHTS, INC., John Copeland, Pedro Perez, Knife Rights Foundation, Inc., Native Leather, Ltd., Plaintiffs–Appellants, v. Cyrus VANCE, Jr., in his Official Capacity as the New York County District Attorney, City of New York, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel L. Schmutter, Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, NJ, for Plaintiffs–Appellants.
Benjamin E. Rosenberg (Patricia J. Bailey, on the brief), Assistant District Attorneys, for Cyrus R. Vance, Jr., District Attorney of New York County, New York, NY, for Defendant–Appellee Cyrus R. Vance, Jr.
Michael J. Pastor, Senior Counsel (Kristin M. Helmers, Counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant–Appellee City of New York.
Before: KATZMANN, Chief Judge, KEARSE and RAGGI, Circuit Judges.
In this action for declaratory and injunctive relief, plaintiffs John Copeland, Pedro Perez, Native Leather, Ltd., Knife Rights, Inc., and Knife Rights Foundation, Inc., invoke 42 U.S.C. § 1983 to charge the City of New York and the New York County District Attorney, Cyrus R. Vance, Jr., with applying New York law criminalizing the possession of “gravity knives,” see N.Y. Penal Law §§ 265.00(5), 265.01(1), in such a way as to render the proscription unconstitutionally vague, thereby depriving plaintiffs of the notice mandated by due process. The United States District Court for the Southern District of New York (Katherine B. Forrest, Judge ), dismissed plaintiffs' amended complaint for lack of subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), concluding that no plaintiff had demonstrated standing to pursue that challenge. See Knife Rights, Inc. v. Vance, No. 11 Civ. 3918(KBF), 2013 WL 5434610 (S.D.N.Y. Sept. 25, 2013). Plaintiffs now appeal, arguing that they each satisfactorily alleged the imminent threat of harm necessary to demonstrate the injury in fact required for constitutional standing.
For the reasons stated herein, we conclude that plaintiffs Copeland, Perez, and Native Leather adequately allege standing, but that the organizational plaintiffs, Knife Rights and Knife Rights Foundation, do not. Accordingly, we affirm the judgment of dismissal as to Knife Rights and Knife Rights Foundation, but we vacate the judgment against Copeland, Perez, and Native Leather and remand the case to the district court for further proceedings as to these three plaintiffs consistent with this opinion.
Under New York law, criminal possession of a weapon in the fourth degree is a class A misdemeanor punishable by no more than one year in prison. See N.Y. Penal Law §§ 70.15(1), 265.01(1). Switchblades and gravity knives are among the weapons specifically proscribed by § 265.01(1). New York defines a “switchblade knife” as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” Id. § 265.00(4). It 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.” Id. § 265.00(5). The New York Court of Appeals has explained that the latter definition distinguishes gravity knives from “certain folding knives that cannot readily be opened by gravity or centrifugal force.” People v. Dreyden, 15 N.Y.3d 100, 104, 905 N.Y.S.2d 542, 544, 931 N.E.2d 526 (2010).
Plaintiffs assert that, consistent with these definitions and judicial gloss, § 265.01(1) has been enforced without controversy for decades by reference to the “essential attribute of both switchblade and gravity knives,” i.e., the lack of any “mechanical resistance (or bias) against opening from the closed position that must be overcome in order for [these knives] to open.” Am. Compl. ¶ 2. Plaintiffs complain that, more recently, defendants have construed the definition of “gravity knife” in such a way as to render the statutory prohibition unconstitutionally vague. Specifically, defendants have applied the law to any folding knife—even ones “designed to resist opening from the closed position” (“common folding knives”1 )—if it would be possible for some person to open the knife by means of a wrist-flicking motion. Id. ¶ 3.2 Plaintiffs argue that a person in possession of a common folding knife, particularly one that the person himself is unable to open with a wrist flick, cannot be expected to know that his possession is criminal because some as-yet-unidentified person may be able to flick open the knife. On this appeal, we do not consider the merits of plaintiffs' vagueness claim, but only their standing to pursue it. Because past enforcement efforts against certain plaintiffs are relevant to their standing, we proceed to summarize those efforts.
Plaintiffs John Copeland and Pedro Perez are, respectively, an artist and an art dealer. Both had routinely carried folding knives for use in their work until 2010 when such knife possession resulted in each man separately being charged with violating § 265.01(1). Perez was so charged on April 15, 2010, when New York City police officers observed him at a Manhattan subway station with a metal clip protruding from his pocket. Inquiry revealed the clip to be part of a Gerber brand common folding knife that Perez had purchased approximately two years earlier at Tent & Trail, an outdoor supply store in Manhattan. Plaintiffs assert that the charging officers were unable themselves to flick open Perez's knife, but based on the possibility that someone could do so, they issued Perez a desk appearance ticket charging him with unlawful possession of a gravity knife.
Some months later, on October 10, 2010, Copeland was similarly charged when police, observing a metal clip in his pocket, found him in possession of a Benchmade brand common folding knife, purchased the year before at Paragon Sports in Manhattan. Plaintiffs assert that on two occasions before October 2010, Copeland had shown his Benchmade knife to New York City police officers and inquired as to the legality of its possession. On both occasions, the officers were unable to flick open the knife and so returned it to Copeland, advising that its possession was legal. By contrast, the officers who stopped Copeland in October 2010 were able to open the knife by “grasping the knife's handle and forcefully ‘flicking’ the knife body downwards” and, thus, issued Copeland a desk appearance ticket for violating § 265.01(1). Am. Compl. ¶ 30.
Perez and Copeland each retained counsel to defend the § 265.01(1) charges by disputing that the devices in their possession were proscribed gravity knives. The question was never resolved because, in both cases, the parties agreed to adjournments in contemplation of dismissal, a non-merits disposition. See N.Y.Crim. Proc. Law § 170.55(2) ; Hollender v. Trump Vill. Coop., Inc., 58 N.Y.2d 420, 423, 461 N.Y.S.2d 765, 766, 448 N.E.2d 432 (1983) ().
In this action, Perez and Copeland assert their continuing interest in carrying common folding knives in New York City but maintain that they do not do so for fear of again being charged with a § 265.01(1) violation, given their inability to determine which common folding knives defendants might deem prohibited by that law.
Plaintiff Native Leather operates a retail store in Manhattan, where it sells, among other things, common folding knives. Plaintiffs allege that in June 2010, defendant Vance initiated enforcement actions against numerous New York City knife retailers, claiming that an undercover investigation had revealed the retailers' sale of proscribed gravity knives. Many retailers resolved these actions by agreeing to pay fines, totaling an aggregate of nearly $1.9 million; to surrender various folding knives in their inventories; and to refrain from future sales of gravity knives. Seven retailers, including Native Leather, did so by entering into deferred prosecution agreements.
Under its agreement, Native Leather not only paid a monetary fine and forfeited certain folding knives, but also adopted a compliance program approved by the district attorney's office and pledged “to permanently cease and desist” from selling any prohibited gravity knives in the future. J.A. 251. Pursuant to its compliance program, Native Leather has a designated employee test each common folding knife in its inventory by making several attempts to open the knife by means of a wrist-flicking action. Native Leather only sells common folding knives that the designated employee cannot flick open on even a single attempt.
Although most provisions of Native Leather's deferred prosecution agreement have now expired, it asserts that it maintains its compliance program “to avoid running afoul” of defendants' interpretation of the statutory prohibition of gravity knives. Am. Compl. ¶ 45. At the same time, it professes concern that its program cannot assure that “some other person” will not be able to flick open one of its knives despite its own employee's inability to do so. Id. Thus, it complains that, while it wishes to sell a wide assortment of common folding knives, it does not do so because it cannot confidently determine which such knives defendants will deem “gravity knives” in violation of § 265.01(1).
Knife Rights is a membership advocacy organization that “promotes legislative and legal action, as well as research, publishing, and advocacy, in support of people's ability to carry and use knives and tools.” Id. ¶...
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