Knife Ban and Vagueness Case at Supreme Court Conference

New York City continues to prosecute people for ordinary folding knives

|The Volokh Conspiracy |

On Thursday, the U.S. Supreme Court conference will consider whether to hear 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 State. This post provides some background about the case.

Types of knives. A switchblade or automatic is a knife that has a "bias towards open." When the blade is folded into the handle, the blade is under constant pressure (from a spring) towards opening. The only reason that the blade stays closed in the handle is that the blade is held in place by a lock. When the user presses a switch or button, the lock is released, and the blade is propelled by the spring into the open position.

Common folding knife (CFK). A common folding knife has a bias towards closure. The closed blade stays in the handle until the user applies force to move the blade to the open position. For example, the blade might have a small hole or a tang that can be engaged by the user's thumb, so the user can move the blade the full distance into the open position.

Gravity knife. Technically speaking, a gravity knife is one with no bias towards open or closed. Being neutral, the knife can be opened by gravity. So if the knife is held in a certain position, gravity will take over, and the blade will slide out of the handle. Gravity knives are best-known as paratrooper arms from World War II. Easy one-handed opening was helpful for paratroopers who were entangled in a tree.

New York's odd definition. In the late 1950s, the New York legislature enacted a law that, among other things, banned gravity knives. But the legislature wrote an unusual definition, backed by a confusing legislative history. At least arguably, the definition is broad enough to encompass a common folding knife that can be flicked open when the user snaps his wrist.

The vagueness of the "flick test." Some people are very adept at flicking knives, and most are not. While New York City police officers teach each other knife-flicking, most other New Yorkers are not mentored in the skill. As the gravity knife law has been enforced in New York City, any common folding knife is an illegal "gravity knife" if someone can flick it open.

Owners and vendors of common folding knives can never tell whether their folding knives are illegal. Suppose the user tests his knife regularly to make sure it can't flick; or suppose the user shows the knife to a police officer, and the police officer cannot flick it either. But later, some other officer is able to flick the knife. The user is then a criminal. As the record in Copeland demonstrates, New York City criminally prosecutes cases such as this. Indeed, gravity knife prosecutions in New York City consist almost exclusively of flick cases, and virtually never involve real gravity knives.

Effect of repeal of part of the State "gravity knife" statute. Recently, the New York legislature passed and Governor Cuomo signed a bill repealing the State's gravity knife ban. Amending the statute that prohibited possession of certain weapons, the bill simply removed every occurrence of the words "gravity knife." However, the bill did not remove the definition of "gravity knife" from a separate statute in the New York Penal Law.

Unhappy with the repeal, the administration of New York City Mayor Bill de Blasio has pointed out that the NYC Municipal Code contains a provision against carrying a "gravity knife" on the subway or busses. He has announced that the City will prosecute people who violate this law (that is, people with a common folding knife that at a single police officer has been able to flick open). According to the New York Police Department, the  folding knives that tradesmen buy at Home Depot are actually "rapidly-deployable combat knives."

Is the case moot? So argue defendants New York City and NY District Attorney Cyrus Vance. But their letter to the Court mentions only the state law repeal statute. As petitioners pointed out in their own letter, the defendants failed to inform the Court about their own plans to prosecute persons who live, work, or travel in the City, based on the city ordinance–an ordinance whose definition of "gravity knife" is parasitic on the still-existing state definition–the definition that has always been the heart of the constitutional challenge in Copeland v. Vance.

Additionally, the state repeal of the gravity knife prohibition was not retroactive. Given the two-year statute of limitations, New York retailers, including one of the plaintiffs, are still subject to prosecution for their sales in the last two years–such as if some officer can flick an individual's knife that was purchased in the past two years.

Constitutional issues. Copeland was not brought as a Second Amendment case. Given the Second Circuit's hostility to the Second Amendment (see, e.g., my recent amicus brief on the NYC handgun transport ban, which will be argued next term), the plaintiffs were probably correct to worry that mentioning the Second Amendment would inflame the Second Circuit. This is too bad, since knives are certainly among the "arms" protected by the Second Amendment, as I argued in the law view article Knives and the Second Amendment. [Cited in Seattle v. Evans, 366 P.3d 906, 914 n.10, 919, 926, (Wash. 2015); State v. Herrmann, 873 N.W.2d 257, 262 (Wisc. App. 2015), State v. DeCiccio, 105 A.3d 165, 193, 197 n.34, 200 (Conn. 2014); People of the State of New York v. Anthony Trowells, No. 3015/2013 (Aug. 4, 2014; Sup. Ct., Bronx Cty., Part 92) (Justice Troy Webber); People v. Genel, 2018 WL 1919053 (Cal. App. Apr. 24, 2018).]

Copeland v. Vance, at the Supreme Court stage, involves only a single and very important issue of criminal law. In a facial vagueness challenge to a statute, does the challenger have to prove that the statute is vague in all possible applications? The Supreme Court so indicated in the 1987 U.S. v. Salerno. But more recent cases, namely Johnson v. U.S. (2015) and Sessions v. Dimaya (2018), have taken a different approach. Four federal circuits have followed the newer rules while the Second Circuit clings to the old Salerno standard.

The circuit split is central to Copeland, since all parties agree that the New York statutory definition is not vague as applied to real gravity knives (that is, knives with no bias, such as paratrooper knives).

An amicus brief by law professors, including Eugene Volokh, urges the Court to clarify its rules on facial and as-applied challenges. Another brief from more law professors, plus the Cato Institute, elaborates on the vagueness problem, pointing out that literally millions of people are criminalized under a strict liability statute with no mens rea, and no means of determining whether their conduct is lawful. Finally, a Legal Aid Society brief details the atrocious record of enforcement of the "gravity knife" ban in New York City, where  85% of persons arrested are Black or Hispanic, and 96% are men. As the brief details, some such defendants have been sent to prison for years for peaceably possessing small utility knives that are sold at hardware stores throughout the City. The brief's photos of some of these knives belie the de Blasio administration's preposterous rhetoric about "combat knives."

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  1. Obviously if a state requires militia members to keep a knife then the knife is covered by the 2A. And pursuant Cruikshank a knife is covered under the right to keep arms in one’s home for self defense which is a natural right that existed prior to the BoR. (Heller’s underlying rationale is nonsense so you just ignore it while the outcome is the correct outcome)

    The issue here is knives outside the home and so we look to tradition to inform the scope of our RKBA. Traditionally concealed weapons have been subject to strict regulations even in pro-2A states like Texas, so because these knives are generally used as concealed weapons a ban would withstand constitutional scrutiny.

    1. Sebastian Cremmington – It’s as if you didn’t read the article at all. The claim is vagueness, not the Second Amendment. SCOTUS is not going to grant a cert petition on a non-existent Second Amendment claim.

      1. The post mentions the 2A and the RKBA outside the home has yet to be addressed by the Supreme Court. I will tell you exactly how it will play out—you have no right to concealed weapons but we have a right to open carry that is subject to regulations. So if these knives are intended to be concealed weapons then a ban is permissible pursuant the constitution.

        1. They’re not intended to be weapons, concealed or otherwise. Just like a butter knife isn’t a weapon.

          And on that note, I’d rather have a large, old fashioned, butter knife with a point on it that a utility knife with a 1 inch blade. At least I could stab with the butter knife, while you’d need to get a really precise cut with a utility knife to do much damage.

          You may not be aware of the context, but the “knives” in question are razor blade holders that fold, so that instead of carrying a large sliding utility razor, workmen can carry folding razors instead. These are also called box cutters, and have a ~1 inch usable blade when in the utility knife, and are designed to be disposable – when the blade gets dull, you flip to the other side, and when both get dull you throw the blade away and insert a new one. Blades are $4 for 50 at Walmart (in Arizona, last weekend).

          1. A few dudes with box cutters changed the world for the worse…much worse.

            1. Yes and no. Had they not been able to exploit a very rare situation where those “weapons” were the most advanced tools available, they would have had next to no effect.

              And even without other tools, the deliberate training of airline staff and passengers to be passive and “wait for the authorities” rather than reacting actively in their own defense was a major contributor to the disaster. Flight 93 was still a tragic sacrifice but if all the crews had reacted like that, I do not believe the world would have been changed, as you say, for the worse.

              1. “Flight 93 was still a tragic sacrifice but if all the crews had reacted like that…”

                My understanding is that the Flight 93 crew surrendered the cockpit (SOP at the time), and the subsequent crash was when the passengers (and crew?) tried to take the cockpit back.

                We had a relative who was an airline pilot at the time. By the time flights resumed a couple of days later he and his colleagues had already decided that any attempt to storm the cockpit would result in them flying a +1G, -1G sine curve until flaring for landing at the nearest airfield, and then do various things on the rollout that would render the plane unflyable w/o maintenance.

                Which would be terribly unfortunate for any innocents, e.g. stewardii, who weren’t belted in, but makes attacking the cockpit pretty unfeasible. With that change in ROE, you could let passengers all carry Uzis and hijacking still doesn’t work (bombs are another issue, of course).

            2. So thousands of people owning and carrying box cutters for openng boxes should be shanghaied and sent to the gulag to show you’re doing something over 9/11?

              It was the bad actors with evil motive and intent, exploiting opportunity, utilizing a means, who “changed the world for the worse” who are to blame, not everyone who owns or uses the same means with other motive and intent in other circumstances.

            3. There’s not actually a lot of evidence for that.

        2. Sebastian Cremmington – Once again. This case has nothing to do with the Second Amendment. There is no Second Amendment claim and so it does not matter whether or not knives (or any weapon) can be banned because the weapon is easily or ordinarily carried concealed.

          A law can otherwise be constitutional but be unconstitutionally vague, either facially or as-applied.

          The Supreme Court’s citation to Nunn as perfectly capturing the meaning of the “right to keep and bear arms shall not be infringed” belies your Second Amendment conclusion even if this were a Second Amendment case. Georgia did not ban all handguns, it exempted certain handguns which were too large to easily conceal and yet the Georgia court felt that was irrelevant, the question was whether or not the handgun had been carried concealed or openly, Open Carry being the right.

          And then there is this bit from Heller regarding why all handguns cannot be banned, “[handguns are] easier to use for those without the upper-body strength to lift and aim a long gun…”

          Anyone who lacks the upper-body strength to wield a long gun isn’t going to be able to wield large handguns which are not easily and ordinarily carried concealed, such as today’s equivalents of the .44 cal Colt Walker or horse pistols.

    2. “… these knives are generally used as concealed weapons …”
      No. Millions of people have traditionally and lawfully carried knives and never used them as weapons. Your assumption needlessly criminalizes millions.

      I have always carried a knife as a tool, starting with my Boy Scout knife and my fishing knife (two tools: a fillet blade and a blade that served as a scaler and hook remover). I also have bayonets for my M1 carbine, M70AB2, and Mosin 91/30 military rifles as collector’s curios, not as weapons.

      If I want to carry a weapon for self-defense I’ll carry my .38 snub or my .40 S&W H&K.

      1. Point is, I do not carry my pocket knives with intent to use them as weapons of defense or offense and I resent the idea that I would have to justify them as arms protected by the second amendment as weapons.

  2. The “Vagueness” of the law is an essential component of the law. Vague laws are preferred because they can be interpreted so broadly as to ensnare anyone the police want to arrest. If the law was overly specific, then all those filthy subjects would be able to weasel their way out of going to prison on a ‘technicality’.

  3. “… shall not be infringed.” Very simple.

  4. Regarding the people “sent to prison for years for peaceably possessing small utility knives”, are you speaking of parole violations or are people sent to prison for years just for the knife?

    1. Possessing a gravity knife is a felony if you have been previously convicted of any crime (regardless if you are still under probation or parole, or if the crime was related to knives or weapons) This appears to be the case with Richard Gonzalez, who was convicted of possessing a simple utility knife but due to prior convictions he ended up in prison for 4 years

  5. Will Crocodile Dundee be called as an expert witness?

  6. I have represented some of the victims of this atrocious law. The “wrist test” is so subjective and unpredictable. The police would hold the knife BY THE BLADE and swing it open, thus meeting the definition of opening by centrifugal force. The last person I represented was a college student and Eagle Scout stopped in a city park under suspicion of being there for drugs (not true) and admitted to having a “weapon” on him. (2″ lock back knife). 40 hours of community service, $500 fine, $2,000 in attorney’s fees, and another couple of hundred in court costs. Over a pen knife.

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