Just like the former President who appointed her to the bench, Judge Katherine B. Forrest is not one to be phased by unanimous reversal of her nakedly political acts. In the case of President Obama, the Supreme Court ruled against his administration more than 50% of the time, 40+ of those times unanimously. For Judge Forrest, one notable reversal came when the 2nd Circuit Court of Appeals unanimously reversed her dismissal of the KnifeRights sponsored NYC Gravity Knife lawsuit. She ruled that the Plaintiffs in the case lacked standing. The Appeals Court reinstated the case, ruling that only KnifeRights itself lacked standing in the case. The remaining Plaintiffs, artists and tradesmen who were caught with their work-knives and a retailer caught up in DA Vance’s shakedown in 2010, did have standing to sue New York City and District Attorney Cyrus Vance Jr.
Despite having the opportunity to actually handle a gravity knife in court, and compare it to the kind of everyday folding knives that many of us regularly carry, and despite viewing the operation of a host of different styles of folding and true gravity knives which in many cases one demonstrator could “flick” open and one could not, and hearing expert testimony, and then actually having Assistant DA Dan Rather, Jr. testify that a legally purchased knife that the owner could not “flick” open in the store became illegal two steps out the door if a NYPD officer could, she chose to disregard reality and dismissed what she witnessed out-of- hand.
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. In support of this argument, plaintiffs point to the legislative history of the Gravity Knife Statute 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. 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.
To paraphase: “Knife experts’ testimony that common knives are not in fact “gravity knives” has no relevance to a case dealing with an overly-broad application of the term “gravity knife”.
The Plaintiffs also argued that the “wrist flick test” is unconstitutionally void for vagueness, and even after experiencing the difference between knives with a “bias towards opening” or no bias at all (like a switchblade or actual gravity knife respectively) and a typical folder with a “bias towards closure”, she ruled that because both styles may be opened with centrifugal force, the distinction is irrelevant.
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.
So in other words, “even though these knives are different, they are the same thing” – an extremely tortured and obtuse lack of distinction.
Beyond that, high school physics, to say nothing of observation, clearly explain why folding knives with a bias towards closure cannot open by centrifugal force alone, whereas a true gravity knife readily does and does so for any person every time.
Judge Forrest goes on:
Moreover, there is no evidence that the manner of conducting the Wrist-Flick test is, in fact, different from officer to officer. 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. 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.
This is a ridiculous assertion. One of the Plaintiffs had shown his knife to two different officers on two different occasions and they were not able to “flick” it open and was arrested when stopped by a third officer who was able to do so.
I don’t now about you the reader, but in my case it takes frequent practice to successfully flip a knife open consistently, and this varies from knife to knife as well. As I have been using autos and assisted flippers more of late, the latter with a bias towards closure as well, I have not used my unassisted knives as much. I went and tried to open 8 different folders. Depending on the blade, it was the 2nd or 3rd attempt that eventually succeeded. However, once I was able to open a knife once, subsequent attempts were almost always successful. To think that the success rate would vary from officer to officer is common sense, especially if they are not practicing.
The lawsuit alleges that the law is unconstitutionally vague in both its text and its application. According to Judge Forrest:
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.
There are a few ways in which a law may lack the requisite specificity.
“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.”
The other way a law may be too vague is if the application of said law is arbitrary:
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.
As I mentioned above, this flies in the face of the experience of anyone who handles folding knives on a regular basis. The test is arbitrary, and there is no limiting restraint. There is no limit to the number of people who may attempt to open the knife with the “Flick Test”.
(P)laintiffs 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 WristFlick 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.”
Having acknowledged this fact, the Judge ruled that it was only a hypothetical. Because the test opened the knives in the cases of the plaintiffs, they lacked proof to assert that the knives may not open for another person or in another case.
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.
Why this matters:
The New York Gravity Knife Statute is unjust. Plain and simple. The plaintiffs are only a few of the more than 60,000 people who have been arrested for bogus gravity knife possession. Many of these arrests were made as a result of the “Stop and Frisk” policy that is overwhelmingly discriminatory in its application. The law is used to justify seizure of private property and to deprive individuals of their freedom. The overwhelming majority of those arrested are racial minorities.
We live in a climate of increasing tension between the authorities and the communities they “serve”. This unjust law, and its capricious application are seen as harassment by those ensnared. In a city where people end up dead because they were selling loose cigarettes, it is a matter of luck that a “Freddie Grey” situation has not occurred among the 60k arrests. It has however cost the city hundreds of thousands of dollars in settlements in wrongful arrest and malicious prosecution lawsuits.
There is a significant amalgamation of disparate groups that understands the injustice of this situation. The ACLU, NAACP, Legal Aid Society, Village Voice, New York Times, NRA, and KnifeRights are just a few of the organizations that lobbied for passage of the knife-law reform bill that was recently vetoed by Governor Cuomo.
Elections have consequences, as we are all too well aware when we turn on the news. It is ironic that the same people, like Governor Cuomo and Mayor DerpBlasio who purport to be on the side of social justice turn out to cast it all aside to further their quest for control over the lowly citizenry. It is also ironic that so many of the left-wing organizations listed above formed a coalition that put Cuomo and Derplasio in power in the first place. I have reached out to the Legal Aid Society for comment on this, and am promised a formal statement by end of the day. I will update this post when I receive it.
Judges are supposed to serve as a bulwark against runaway Executive and Police power. I was right in that Judge Forrest was waiting to release her decision in deference to the legislature. I was hoping that she would see the will of the people being thwarted by that veto, especially since the bill passed the assembly by a wide, bipartisan margin, and the NY Senate unanimously. I was hoping that since the Governor wasn’t going to let her off the hook in making a decision, that she would make a rational decision based on both the clear violation of the Constitution and simple common sense.
Unfortunately, I was wrong and the people will be the ones who suffer from her intellectual cowardice.
(You can read KnifeRights’ media release on the decision here)