Interesting Vagueness Case That the Court Is Being Asked to Hear

The underlying subject matter in Copeland v. Vance is knives, and a New York law banning "gravity knives," but the legal issue is what must be shown for a facial vagueness challenge to a criminal statute.

|The Volokh Conspiracy |

From the cert. petition:

In United States v. Salerno, 481 U.S. 739, 745 (1987), this Court held that to maintain a facial challenge, a plaintiff must establish that "no set of circumstances exists under which the Act would be valid." The federal courts of appeals are starkly split on the question of whether this rule was relaxed by the Court in the context of vagueness cases in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

The Fourth and Eighth Circuits have answered in the affirmative. See Kolbe v. Hogan, 849 F.3d 114, 148 fn.19 (4th Cir. 2017); United States v. Bramer, 832 F.3d 908 (8th Cir. 2016). By contrast, the Second Circuit expressly insisted below that no such relaxation has taken place. Copeland v. Vance, 893 F.3d 101, 113 fn.3 (2d Cir. 2018).

The question presented is: Whether a plaintiff need show that a law is vague in all of its applications to succeed in a facial vagueness challenge.

You can read the government's response, the reply, and the amicus briefs here. (I signed one, though did not write it.) You can also see the debate about whether the case is moot—10 days ago, the New York Legislature repealed the underlying statute, but people could still be prosecuted for their pre-repeal conduct (yes, that's the legal rule in most jurisdictions with regard to statutory repeals), and gravity knives (defined using the same definition that is being challenged as vague) remain forbidden on New York City subways and buses. Very interesting stuff.

The Court will be considering the case at its conference Thursday.

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8 responses to “Interesting Vagueness Case That the Court Is Being Asked to Hear

  1. This is serious stuff. You are to be commended for noting the seriousness of it without resorting to the serious pun which is soooo seriously begging to be used.

  2. First reaction: Say you have three knives of varying levels of resistance. So long as there is at least one police officer capable of flicking open the toughest one and one incapable of opening even the easiest one, the circumstances of the deft’s conduct aren’t implicated at all, and the ambiguity doesn’t impede the deft’s following (or breaking) the law in any given doubtful case.

    So, pace the QP, the real question seems to be whether the state legislature acts unconstitutionally when it clearly vests the police with the ability to ratchet up the restriction without any meaningful standard. (“Any knives the police dislike are banned.”) Nothing the deft does or doesn’t do (other than not carrying a knife at all) can change things. The grant of authority isn’t vague — it’s a clear mandate, but without an intelligible standard. Contrast the archetype of vagueness: a law saying “you can’t do bad things.” There, the deft has a chance to conform in the doubtful case, and is impeded in attempting to do so by the ambiguity.

    As for facial challenge, the “no set of circumstances” refers to circumstances of the criminal act, not to the enforcement. (More precisely, the circumstances of the act as a function of the circumstances of enforcement.) Here, the crime is agnostic to the conduct of the deft within the range of the ambiguity. Assuming there’s no reasonable-flick standard implied or judicially construed, there’s no given circumstance in a doubtful case that the law clearly allows or disallows, so holding that the state can save the law by demonstrating a fair use of it isn’t enough, because there’s no circumstance clearly within the law.

    It’s an interesting question, but focusing only on arbitrary authority to the total exclusion of the fair-notice considerations usually associated with void-for-vagueness would make this an odd vehicle for the stated QP.

    1. Mulling this more, takeaways from the initial musing above:

      1. Given a scenario in which at least one officer can flick every flickable knife, and at least one one can’t open any, there’s no one set of circumstances in the res of the offense that would always be a crime, so the state doesn’t even have the theoretical possibility of saving the law against a facial challenge by citing one set of circumstances.

      2. The question might be whether a de facto “strongest officer” standard (one that can’t always be enforced, as she’s a busy officer) that everyone knows in advance offends the federal constitution. And, in the same line, whether the fact that it’s a physical test of strength sufficiently minimizes the chance that the officers will flick harder for folks they don’t like.

      3. Thought experiment: A potential thief is standing in front of a safe that has money in it. The money belongs to the state. A police officer is standing next to him. In one world, the law says that it’s not a crime for the thief to take the money if it’s basically fair for him to do so. Clearly vague, yes. In the second world, it’s not a crime for the thief to take the money if he can successfully arm-wrestle the nearest policeman. Stupid, yes, but unconstitutional?

      Just off the top of my head in the free time. Certainly not advice of any kind.

  3. […] case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York […]

  4. Isn’t the very nature of vagueness that we don’t know what it applies to and what it doesn’t? How can you then say that it is vague in all its applications. Has there ever been a statue so vague that there is no conduct clearly prohibited? I doubt that.

    1. The difficulty is that it specifies the test, rather than describing the prohibited thing. If, hypothetically, there’s a police officer too weak to flick open the easiest one, it’s at least arguable that there’s nothing proscribed.

  5. […] case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York […]

  6. […] an important case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York […]

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