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.
Caleb Smith was an overwhelmed but idealistic 26-year-old with a master’s degree in biomedical science, studying for medical school entrance exams. When he wasn’t learning about the human body, Smith, a resident of Williamsport, Pennsylvania, worked on his car, watched anime cartoons, and played with his beloved Siberian Husky.
But Smith’s dream of becoming a doctor was abruptly cut short when he killed himself last September, less than one month after federal prosecutors charged him with the death of his girlfriend, 26-year-old Amanda Leach, who fatally overdosed in May 2016 on illicit fentanyl he accidentally purchased online. Smith, grieving the death of his girlfriend and feeling the weight of the federal government bearing down on him, fatally shot himself on September 1, 2016, one day after he was released from jail. His trial date had been set for the following October.
Smith thought he had purchased a popular ADHD medication from an online vendor to help him study, his mom told local news, but the pills, which he received by mail, instead contained illicit fentanyl, a powerful synthetic opioid. Leach repeatedly asked Smith for some of the Adderall he thought he had purchased, Smith’s mom, Kathy Smith, said. Soon after Smith gave Leach the pills, she was found dead in her apartment. Three months later, prosecutors with the U.S. Attorney’s Office for the Middle District of Pennsylvania charged Smith with distribution of a controlled substance resulting in death, otherwise known as “drug-induced homicide.”
The guilt over his girlfriend’s death — and the specter of a minimum 20 year prison sentence — proved too much for Smith, who had no prior criminal history. Smith’s mother told local newspapers that he fell into a deep depression after his girlfriend died. “He told us every day, ‘I want to blow my head off,’” she told local media. “I said, ‘please, Caleb. Please don’t do this. I love you.’”(The Smith family and friends did not return multiple requests for comment for this story.)
Smith’s mom said the he repeatedly called himself a murderer. “I said, ‘No you are not. A murderer is someone who meant to do it.’ I couldn’t get that through his head.”
But federal prosecutors thought otherwise.
Smith’s case illustrates a new trend of prosecutors at both the state and federal level turning accidental drug overdoses into homicides. Born out of the “tough on crime” crack-cocaine era of the ’80s and ’90s, “drug-induced homicide” statutes hold dealers legally responsible for the deaths of their customers who overdose on the drugs they sold. Although the statutes went unused for decades, state and federal prosecutors now deploy them as a desperate attempt to mitigate the toll of the opioid crisis that killed over 40,000 people in 2016, according to the CDC. Severe penalties will deter dealers from dealing, prosecutors’ thinking goes; but there’s scant evidence supporting that notion. The Appealrecently reported on research by the Drug Policy Alliance that found that the number of drug-induced homicide prosecutions increased by 300 percent from 2011 to 2016. Yet fatal heroin and fentanyl overdoses more than quintupled during that same window. Heroin contaminated with fentanyl, which is many times more potent than heroin, is as cheap and accessible as its ever been.
Not only are these prosecutions ineffective in alleviating the epidemic; prosecutors’ definition of “dealer” stretches the word nearly beyond recognition. Originally crafted to target major traffickers, the majority of drug-induced homicide prosecutions target friends, family, and romantic partners — like in Smith’s case — who do not fit the traditional profile of a dealer, according to research by Northeastern University’s Health In Justice initiative (which I’ve contributed to). Instead, these defendants are drug users themselves, who gave or sold a small amount of drugs to their peers or loved ones.
Smith wasn’t the only target in the death of Amanda Leach. A review of the evidence in Smith’s case by The Appeal reveals that the investigation also focused on an alleged major drug trafficker, 26-year-old Aaron Broussard of Hopkins Minnesota, operator of PlantFoodUSA.net (which has since shut down) — the website from which Smith purchased the drugs that killed his girlfriend.
Three months after Amanda Leach’s overdose, the FBI arrested Broussard in Hopkins, Minnesota. Federal prosecutors charged him with distributing fentanyl resulting in death. According to the government’s legal documents, Broussard ordered drugs online from “international sources” and repackaged the drugs himself. He then shipped “hundreds of Priority Mail” parcels from a post office in Hopkins, Minnesota, to customers across the country who died after using them.
Illicitly manufactured fentanyl killed nearly 20,000 people in 2016, according to the Centers for Disease Control and Prevention. The deadly opioid is the number one driver of overdoses in America. A particularly insidious trend of today’s overdose crisis is the shipment of black market fentanyl by mail. Packages containing illicit fentanyl are small and innocuous, creating a needle-in-a-haystack situation for law enforcement trying to intercept dangerous packages. Broussard allegedly used PlantFoodUSA.net — named to deceive authorities into thinking the site sold dietary supplements — to sell powerful synthetic drugs like fentanyl to customers by mail. Federal prosecutors alleged that Broussard’s scheme was linked to 10 fatal overdoses, including Leach’s.
“In all cases, the victims had ordered less dangerous drugs but, unbeknownst to them, received fentanyl instead,” according to the government’s court filings in Broussard’s prosecution.
One of Broussard’s alleged victims was a woman who overdosed on April 8, 2016 in Grand Rapids, Michigan. A plastic bag of white crystalline powder was found in her bedroom, and the victim’s mother discovered a package that had a return address to a post office box linked to Broussard in Hopkins, Minnesota. The woman survived the overdose, but with potentially life-long neurological damage caused by a lack of oxygen flowing to the brain.
Another alleged victim was 41-year-old Jason Beddow, professor of economics at the University of Minnesota. Beddow was found dead in his office in St. Paul, Minnesota, on April 14, 2016. Once again, a bag of white powder was found at the scene. An investigation by the United States Postal Inspection Service found that Beddow received a parcel from a “ClickN-Ship” account allegedly used by Broussard. A coroner determined that Beddow had an “elevated level of fentanyl” in his system at the time of his death.
Following his indictment by a federal grand jury on December 6, 2016, Broussard pleaded not guilty, and is awaiting trial.
“My client may have sent this [chemical] out, but he didn’t send it to them with any idea of what their purpose was for,” says Broussard’s attorney Bernard J. Brown, “the (government’s) case is circumstantial, and I think it’s a far leap that the government is trying to make in this particular case.” Brown adds that his client did not intend in any way to harm the recipients of the chemicals.
From the government’s allegations, Broussard seems more culpable than Smith; he was an actual drug dealer, and his alleged customers were unaware of the contents and potency of the drugs he allegedly shipped. But had Smith not killed himself, he and Broussard would have been charged as co-conspirators in the same indictment, a spokesperson for Middle District Pennsylvania U.S. Attorney David Freed told In Justice Today. And Broussard’s alleged drug-dealing by mail scheme carries the same 20 year mandatory minimum sentence that Smith was facing for ordering the drugs.
“[Smith’s] case illustrates the senseless ensnarement of partners or friends of drug users who are being charged with really heinous crimes for actions that do not reflect the severity of punishment that’s being applied to them,” says Leo Beletsky, professor of law and health sciences at Northeastern University. Beletsky, who is also the principal investigator at Health In Justice, a group of researchers and journalists tracking public health policy, added that there was no intention of harm in this particular case. “No reasonable person would frame Smith as a murderer or killer — it’s an example of a total accident,” he said.
The aggressive prosecution of Smith recalls that of digital rights activist Aaron Swartz, who faced 35 years and up to $1 million in fines for allegedly downloading thousands of academic articles with a secret computer connected to Massachusetts Institute of Technology’s network. Swartz committed suicide in 2013. His girlfriend, Taren Stinebrickner-Kauffman, contended, “Aaron’s death was caused by a criminal justice system that prioritizes power over mercy, vengeance over justice.”
Prior to ordering what he thought was Adderall, Smith, like Swartz, was an overachiever who loved science and technology. But in the eyes of federal prosecutors, none of that mattered: They believed Smith murdered his 26-year-old girlfriend. The result is a tragic and avoidable loss of life, all because of prosecutors who pride themselves on a “public health response” to addiction but actually deploy punitive and carceral measures. One life was lost to an accidental overdose. Another was lost to seeing no way out of an aggressive federal prosecution.
It looked like a flyer promoting Bourbon Street strip clubs: purple, magenta and black, with neon light-styled letters spelling out the name of then-New Orleans mayoral candidate, Desiree Charbonnet. But it wasn’t a flyer. It was an opposition mailer, sent just before the hotly-contested November election. Under a photograph of Charbonnet, the mailer stated, “In December 2015, French Quarter strip clubs were cited for prostitution, drug trafficking and lewd acts. Now, they’re pouring cash into Desiree’s campaign.” The Charbonnet campaign’s response to the mailers was swift and decisive: “It’s all a tissue of lies,” campaign spokesman Kevin Stuart said, explaining that the campaign received donations from those who owned the club buildings, not the owners or managers of the clubs themselves.
The mailer — its claims and its imagery — may have struck a sensational nerve for New Orleans voters: the city’s strip clubs had just appeared in a major Times-Picayune investigative series alleging they were a “hub for sex trafficking,” though the reporters, who were on the story for one year, found no sex trafficking in the clubs. But the series has a backstory: in Jim Kelly, founder and director of a Catholic agency that serves homeless youth called Covenant House New Orleans, who has for several years now campaigned against the clubs, claiming to city and state policy makers that stripping leads young women to become victims of sex trafficking.
This weekend, Kelly’s campaign scored another win. Four French Quarter clubs were raided by the New Orleans Police Department and the Louisiana state Office of Alcohol and Tobacco Control, resulting in the suspension of their liquor licenses. Club staff reported that male officers entered the dancers’ dressing rooms, and read their names aloud in front of customers; an advocacy group said no trafficking victims were found. Dancers were handcuffed and questioned, their income cut off for the night or longer — while Kelly, who has long supported heightened policing of the clubs, applauded law enforcement’s raid and called for more crackdowns.
Identifying — and Inventing — Victims
Jim Kelly is a man with a mission, a substantial budget, and influential supporters in city and state government. Since his organization received major funding from the Department of Justice, Kelly has fought to convince lawmakers and the public alike that cracking down on the state’s legal strip clubs will combat sex trafficking.
Kelly’s targeting of the strip clubs is just part of the national Covenant House’s longstanding fight against sex work, from internet advertisements today to street prostitution in the 1970s. Covenant House founder Father Bruce Ritter saw his work as getting youth off the streets and out of the sex trade, at first by getting them into his apartment. Ritter was later forced out of the organization when several men he had taken off the streets said he had paid them for sex, reports which an internal review confirmed had long been known to the organization. Kelly himself has been with Covenant House since the 1980s, and founded the New Orleans branch of the agency. As the issue of sex trafficking has gained in national prominence (in part due to the national Covenant House’s campaigning), Kelly and Covenant House New Orleans have re-positioned themselves as trafficking experts. Covenant House New Orleans touts its role in serving people they say have been trafficked or forced into the sex trade, and who are “turning [their] life around.”
In 2015, Covenant House New Orleans received a $900,000 anti-trafficking grant from the Department of Justice to work in partnership with the Jefferson Parish Sheriff’s Office (which received $600,000) “to support law enforcement efforts and victim services for the next three years.” The partnership is the backbone of the Greater New Orleans Human Trafficking Task Force, whose core team includes the U.S. Attorney’s Office of the Eastern District of Louisiana and Homeland Security Investigations, and with members from the New Orleans Police Department and the state Office of Alcohol and Tobacco Control — who conducted last weekend’s raid in the French Quarter — as well as the Federal Bureau of Investigation and Customs and Border Patrol.
In 2016, Kelly backed a change in Louisiana’s sex trafficking law that redefined any involvement in commercial sex as trafficking for 18, 19, and 20 year olds, even if force, fraud, and coercion are not present. This makes Louisiana the only state whose law regards some adults who consensually sell sex — that is, who are engaged in what is normally defined as prostitution — as if they are trafficked. The law could also distort the number of trafficking victims found in the state, as reported by law enforcement and social service agencies like Covenant House. “I would love to see this become a federal law,” Kelly said in a Covenant House blog post.
According to advocates, crackdown efforts like Kelly’s — which blur the distinction between women who choose to do sex work and women who are coerced to do so — take power and control away from women at work, and thus contribute to “an environment where trafficking can flourish.” Local advocates point in particular to the dangers that police stings pose for people who work in the sex trade and people who are trafficked alike. The Jefferson Parish Sheriff’s Office, Covenant House’s partner in the DOJ-funded trafficking task force, is notoriously racist, and routinely engages in anti-prostitution stings, a tactic that can endanger the well-being of sex workers.
Data and “Seduction”
Since 2015, Kelly has zeroed his anti-trafficking efforts in on the city’s strip clubs. “We see time and time again that strip clubs are fertile ground for human traffickers,” Kelly told WWLTV one year before the Times-Picayune series was published, “to pick off, to seduce, to bring into their stable young victims, young women.” But according to independent research by Loyola University on Kelly’s own agency, Covenant House’s clients have not reported being trafficked for sex in strip clubs.
In 2014, Loyola University researchers interviewed 99 people aged 18 to 23 who were served by Covenant House. Ten of those interviewed said they had worked at some time in a strip club, and eleven people interviewed said they had experienced sex trafficking. Though these groups may overlap — that is, someone who had once worked at a strip club may have also, at a different point, been trafficked in a different workplace — none told researchers they were trafficked for sex in a strip club. In fact, some reported being recruited to sell sex not in the sexually-oriented businesses on Bourbon Street, but on the streets surrounding the Covenant House shelter, which sits adjacent to the French Quarter on North Rampart Street.
Covenant House’s Kelly has claimed the strip clubs put women at risk for sex trafficking, but the study of his own organization makes no such claim. “There are no recommendations in the report regarding strip clubs,” Dr. Laura Murphy, lead researcher for the Modern Slavery Research Project at Loyola University New Orleans and lead author of the study, told The Appeal, “as the clubs were not found to be a significant factor in the trafficking we identified among the 99 youth who participated in the study.”
Despite such findings about the agency’s own clients, Covenant House and director Kelly have been engaged in a multi-year campaign advocating for tougher laws and increased law enforcement scrutiny of strip clubs due to what they allege is a link between the clubs and sex trafficking. They also want to ban adult women who are under 21 from working as dancers in strip clubs.
“We ended up looking at whether we could do something we thought was really simple,” Madeleine Landrieu told The Appeal. “Raise the age of those who can dance in strip clubs to 21.” Landrieu, dean of the Loyola University law school and sister of outgoing New Orleans mayor Mitch Landrieu, said working with Covenant House was her introduction to the issue of trafficking. “These women don’t even initially recognize sometimes what they were involved in,” Landrieu said. She admitted that “every woman who goes and works in a strip club is not trafficked,” but claimed that the clubs are “a gateway or a pathway [to trafficking] for women.”
When campaigning for the bill barring dancers under 21, Covenant House representatives said they were tracking the number of trafficking victims they served who had a history of working in strip clubs — which isn’t the same thing as counting cases of trafficking in strip clubs, and doesn’t capture whether strip clubs are the pathway to trafficking that Landrieu and Kelly claim. The Appeal made multiple requests for comment to Kelly; he initially agreed to an interview, then canceled that interview, and asked that The Appeal submit questions by email. The Appeal then submitted questions to Kelly seeking any data from Covenant House on the incidence of trafficking in strip clubs among the people the agency serves. Kelly did not answer those questions.
Kelly’s campaigns against these dancers’ right to work would seem at odds with his agency’s mission to shelter and serve the disenfranchised. According to their most recently available tax filings, Covenant House took in $5.6M from a combination of foundation and government grants and individual donations between July 1, 2015 and June 30, 2016, funding meant primarily for direct services like shelter, referrals to medical care, and street outreach. They say 761 “homeless youth [who they define as those up to age 22] and children… took refuge” with them in that same period. Yet strip clubs can provide economic security for young women shut out of other jobs because of discrimination based on race and gender.
Working to Maintain “the Basics”
The dancer bans backed by Covenant House have gained traction. In January 2016, the New Orleans city council voted unanimously to ban 18, 19, and 20 year olds from working as dancers in city clubs. Then, Covenant House board chair Landrieu says, “a group of us took it to the legislature to go statewide.” That group was Covenant House, led by Kelly and members of its board, supported by legislators who “believed in the issue” and shared their “understanding of what adolescence is.”
But in March 2017, a federal judge issued an injunction temporarily blocking the ban’s enforcement, after three dancers filed a lawsuit challenging the law on the grounds that it violated their right to work and their freedom of expression. In U.S. District Judge Carl Barbier’s ruling granting the temporary injunction, Kelly appears — the judge cites Kelly’s testimony in support of the New Orleans dancer ban as influential in the statewide ban. The judge also noted the dancers’ argument “that the Louisiana legislature’s true animating forces behind Act №395 [the dancer ban] were paternalistic and moralistic concerns about how women under the age of twenty-one should live, not the goal of reducing the secondary effect of human trafficking,” as evidenced by statements like Representative Robby Carter’s during floor debate on the ban: “We need to do something to get these people [to] recognize that there’s another way of living, you know. I wish there was something we could do to make [erotic dancers] go to church or something.”
In June 2017, the state appealed the judge’s ruling. The case is now tentatively scheduled for oral arguments in the Fifth Circuit Court of Appeals, New Orleans, in February 2018. Covenant House board president Landrieu was dismissive of the dancer’s suit, saying the strip clubs are behind it. “I would suppose 3 individual dancers are not the ones pushing the issue, and while they might be, I would find that surprising.”
A month after Judge Barbier enjoined the dancer ban, the original law’s supporters — including Kelly — returned to the state house, in an attempt to pass a version that would hold up in court. But their efforts met with more opposition this time. Louisiana state senator Karen Carter Peterson pressed the ban’s proponents, including bill sponsor Senator Ronnie Johns, for data showing that the clubs are a gateway to trafficking. “I keep hearing that there is this strong relationship between strip clubs and human trafficking,” Peterson said at a 2017 hearing on the revised bill. “Where is the evidence of that? Give me the evidence of that.” After several amendments were proposed in response to dancers’ concerns, including one to drop the ban and replace it with mandatory anti-trafficking education for strip club workers, Senator Johns pulled his bill in June 2017, saying “we will take our chance in court.”
Nia Weeks, Director of Policy and Advocacy at Women With A Vision — a New Orleans-based community organization that advocates for the rights of women of color, including sex workers — was one of many advocates who opposed the ban and supported the 2017 amendments. She says Covenant House’s efforts to link strip clubs to trafficking doesn’t reflect the realities of Bourbon Street. “I visited every club up and down Bourbon Street” asking women what they did need, Weeks says. At a mostly black club, she says, the women working there “were talking to me about feeding their kids, making sure they had a house to live in.” When it came down to it, she says, “they were concerned with how the regulations were going to affect their ability to maintain the basics.”
Weeks was also skeptical that combating trafficking was the true motivation behind Covenant House’s dancer ban campaigns. “If it really was about trafficking, you would see them trying to pass these laws against those perpetrating the trafficking,” she tells The Appeal. “But there is nothing that they have put forth that is going after these supposed horrific men that are doing these supposed horrific things.… The only thing they have done is try to regulate these women out, and put them in more desperate, detrimental situation.”
Weeks adds that even if Covenant House’s aim is to protect women, there’s no evidence indicating that a dancer ban is a solution to trafficking. “If they have all these women, they haven’t put out any data or information on what can really be done in order to make them safe,” Weeks says, “I haven’t seen anything like that.”
What leads to trafficking, according to the Loyola study, is both more complex and more mundane than the strip clubs that Kelly relentlessly targets. The report’s lead author Murphy explains, “Our findings suggested that it is primarily economic factors among homeless youth that create vulnerability to trafficking, and our recommendations reflect this problem by suggesting that our community provide additional social services and expanded economic opportunity.” To back strip club raids that take money out of dancers’ pocketbooks is to create more vulnerability.
Women With A Vision’s Weeks says that in contrast to Covenant House, her organization seeks to involve women directly in their advocacy, from learning from them with their needs are, to developing campaigns with them, and bringing them to Baton Rouge to advocate for policy change. The organization also works with groups that are advocating for a broader racial and economic justice agenda in New Orleans, such as Louisiana for Prison Alternatives, the Power Coalition, the NOLA Housing Alliance, and Fight for 15.
“I have never seen Covenant House at one meeting,” says Weeks. “They have not reached out to any of the entities that are doing any of these efforts and asked, how can we partner to ensure that this group of people” — including the women working in New Orleans strip clubs — “is protected?” Empowering women and fighting with them for economic justice isn’t the kind of work Covenant House is paid by the Department of Justice to carry out as anti-trafficking work. But neither is the DOJ funding them to lobby for laws putting sex workers out of work, endangering those they are meant to serve.