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Federal Court Hears Constitutional Challenge to a New York Statute that Incarcerates Working Class People of Color

Folding knives like this one have led to thousands of arrests in New York City.
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Federal Court Hears Constitutional Challenge to a New York Statute that Incarcerates Working Class People of Color


The Second Circuit Court of Appeals on Thursday heard oral arguments in a challenge to New York’s controversial “gravity knife” statute, the latest chapter in a fight against a law that has drawn broad criticism from criminal justice reform groups, in part for its disproportionate impact on people of color.

Two of the plaintiffs in the case, John Copeland, a visual artist, and Pedro Perez, an art dealer, were arrested in Manhattan nearly a decade ago for possession of folding knives they say they used in their trades. The third, Native Leather, is a Greenwich Village apparel shop accused of selling prohibited knives in 2010.

The trio is represented by Knife Rights, an Arizona-based organization that advocates for what it considers the constitutional rights of knife owners. Since 2011, the group has been suing Manhattan District Attorney Cyrus Vance on behalf of their members for what they contend is his unconstitutional enforcement of the nearly 70-year-old statute.

Enacted in 1958, the gravity knife law was initially aimed at a large variety of knives similar to switchblades, which were then common on city streets. But according to public defenders, in a trend driven in part by the NYPD’s unofficial arrest quota system, the statute is frequently used instead to arrest blue-collar workers who often have no idea their weapons are illegal.

At the heart of the case is what has come to be known as the “wrist flick” test, used by police to differentiate “gravity knives” from legal folding knives. Under New York State’s peculiar definition, any folding knife that can be opened and locked in place with the snap of a wrist can be classified as unlawful, regardless of whether it was intended to operate that way.

But a knife’s ability to be “flicked” open relies in part on its user’s strength and skill, Knife Rights argues, and is therefore inherently subjective. With no uniform test to determine what is and is not a gravity knife, the law as enforced is unconstitutionally vague, they say.

“There’s literally no way to know whether you’re engaged in legal conduct,” Daniel Schmutter, an attorney for the plaintiffs, told the three-judge panel on Thursday. Someone seeking to comply with the law, he explained, might set out to perform the wrist flick test themselves, fail, and think the knife is safely “unflickable.” But whether a knife’s owner can “flick” his or her knife is irrelevant if a skilled police officer can do so.

“The problem arises not when [the knife] opens, but when it doesn’t open,” Schmutter said. That vagueness, plaintiffs argue, violates the principles of equal protection under the Fourteenth Amendment.

Vance’s office argues, and state courts have affirmed, that the test is perfectly clear. If a knife can ever be opened with a wrist flick, under any circumstances, then it meets the definition of an illegal knife. Moreover, they say, the wrist flick test has been employed since the law was passed in 1958.

“It’s the same test that’s been used since the inception of the statute,” offered attorney Elizabeth Krasnow, who is representing the Manhattan District Attorney’s office, citing an assistant district attorney and government witness who testified to the uniformity of his tests over the past 30 years.

Legal defense groups like the Brooklyn Defender Services and the Legal Aid Society complain that innocent clients — construction workers, plumbers and other working class New Yorkers — are frequently arrested for knives essential to their work, and which are widely available at city retailers. Invariably, they are unaware that knives sold openly in city stores can be considered illegal.

Even worse, public defenders say, while the charge is normally a misdemeanor, anyone with a prior criminal conviction can be hit with a felony by the DA’s office, and face up to seven years in prison. Tens of thousands of people have been arrested under the law in the past decade, according to a Legal Aid analysis, and of those defendants, 84 percent were Black or Latino. The state legislature in 2016 and 2017 passed reform measures that would have stemmed the arrests, but each was ultimately vetoed by Governor Andrew Cuomo.

Vance, the titular target of Knife Rights’ suit, has become the focus of much of the reformers’ ire, in part because his office has zealously prosecuted gravity knife cases. According to an amicus brief filed by the Legal Aid Society in support of the plaintiffs, over a five-month period in 2015, Vance pursued more than four times as many felony gravity knife possession cases as all other New York City DA’s combined. He has also been the most vocal opponent of amending the statute, lobbying against every iteration of the reforms since 2014.

The case has created some strange courtroom scenes, not to mention some unlikely alliances. The NAACP Legal Defense Fund, for example, has thrown its support behind legislative changes to the law, as has the National Rifle Association.

Evidentiary hearings have also been tricky. In the district court, some exhibits — knives which the government, after all, contends are illegal weapons — had to be transferred by police through a complicated chain of custody. Circuit Judge Rosemary Pooler referred to that particular challenge in a quip to Knife Rights attorney Schmutter on Thursday. If he had wanted to bring an exhibit to help with his presentation, she noted, he might have run into problems at a secure federal courthouse.

“You probably couldn’t get it through the guards,” she said.