The Appeal Podcast: The Long, Troubled History of Gravity Knife Prosecution

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Transcript

Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember you can always follow us at The Appeal magazine’s main Facebook and Twitter pages. You can always rate and subscribe to us on iTunes as well.

It may sound like a footnote in the story of NYPD harassment, but with over 3,500 arrests in 2018 alone, gravity knife prosecutions in New York are one of the top ten crimes pursued by New York authorities. The problem is what is and isn’t a gravity knife is extremely vague and 84% of those arrested for having them are black and Latino. Our guest, Appeal contributor Jon Campbell, discusses recent efforts in New York to reform laws against gravity knives that when compounded with other offenses can sometimes send people to jail for five, six and even ten years.

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Jon Campbell: What opponents would say is that it’s really dependent on skill and strength. That’s the focus of a Constitutional challenge right now that is trying to invalidate the law based on vagueness. An officer who has been doing this a while may have developed the skills to make even a brand new knife flick open when the owner himself or herself couldn’t actually do that. And what this Constitutional challenge is hoping to determine is that there’s really no way to tell whether your knife is actually illegal. Someone who in good faith buys a knife at a hardware store, tries to test it, but it isn’t really as adept at this test as some future police officer, might find that it can be flicked open somewhere down the road.

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Adam: Jon, thank you so much for joining us.

Jon Campbell: Thanks for having me.

Adam: So you’ve written two articles recently for The Appeal about gravity knives. The first one from January 23rd, “Federal Court Hears Constitutional Challenge to a New York Statute That Incarcerates Working Class People of Color.” And one from March 6th of this year, “New York Lawmaker Announces Sweeping Challenge to Gravity Knife Law.” At first sight, if someone hears about gravity knives, this may seem like (a) something that maybe seems trivial or small and (b) maybe seems like a really terrible Wachowski siblings movie. Explain to us what a gravity knife is and lets sort of establish the stakes. Like why are laws around grabbing knives tremendously important to the lives of millions of New Yorkers and people throughout the country?

Jon Campbell: So under under New York State Law a gravity knife is defined as any knife that opens with the force of gravity or with centrifugal force. In practice, the test to determine what’s a regular folding knife and what’s a gravity knife depends on something called the wrist flick. It’s what the courts and law enforcement have determined is the best test. In practice, what opponents of this law say is that police officers have gotten really adept at flipping open regular pocket knives. So a knife that maybe it wasn’t designed to flip open, a knife that wasn’t marketed as a gravity knife can nonetheless be flicked open by police officers who have gotten some practice at this by now. It does seem like a small issue. There’s been about 60,000 arrests over the last ten years. Most of these are misdemeanor arrests. The ones that really trouble public defenders are the felony arrests. So anyone who has a prior conviction can be subject to what’s called a bump up.

Adam: Okay.

Jon Campbell: If you’re convicted under the bump up provision, you can face seven years in prison and it’s not a small deal for a lot of people.

Adam: No. I would imagine not. And so you write that this notion of being able to flip open with your wrist is incredibly subjective. How subjective is this and is this an ad hoc determination police make on site or is there some sort of adjudication later in a court?

Jon Campbell: Well, I mean, what opponents would say is that it’s really dependent on skill and strength. That’s the focus of a Constitutional challenge right now that is trying to invalidate the law based on vagueness. An officer who has been doing this awhile may have developed the skills to make even a brand new knife flick open when the owner himself or herself couldn’t actually do that. And what this Constitutional challenge is hoping to determine is that there’s really no way to tell whether your knife is actually illegal. Someone who in good faith buys a knife at a hardware store, tries to test it but isn’t really as adept at this test as some future police officer might find that it can be flipped up and somewhere down the road.

Adam: So by way of establishing stakes here, you write that quote, “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.” Now the NYPD is sort of notorious for kind of trawling the subways to find low level crime. Obviously you have things like stop-and-frisk, broken windows, public urination, sitting on the steps in the subway. To what extent is this just another arrow in their quiver of something to just harass people with?

Jon Campbell: Well yeah, certainly opponents of the law would say that. So I mean data on this is really hard to get because the NYPD hasn’t released it and the DAs in New York City have also not released it. I’ve requested it a lot of times over the years and none has been turned over. The Legal Aid Society looking at their own clients over a six month period in 2015, they found 254 prosecutions and only four defendants were accused of using the knife unlawfully. The way most of these cases come up actually is by police spotting what’s called the pocket clip. So a knife is clipped to someone’s pocket, they’re spotted often in the subway station, an officer comes up, asks see the knife, tests it, determines that it can open with that wrist flick and that’s where the arrest comes from. I spoke with a former DA who characterized this as just an easy collar. It’s, you know, it’s one that can help an officer get his numbers up and it’s not a tough one to make.

Adam: And of course that disproportionately affects black and Latino people. You note specifically that Manhattan DA Cy Vance is exceptionally eager to prosecute people for gravity knives. You write that over one five month period in 2015 he pursued more than four times as many felony gravity knife possession cases as all other New York City district attorneys combined. What is his MO here?

Jon Campbell: I mean Vance, you know, when you ask his spokespeople why they consider these knives to be a problem, they’ll give you a not unexpected answer that ‘knives are dangerous weapons and we don’t want people carrying around knives’ and they view gravity knives or alleged gravity knives as particularly dangerous because they can be opened quickly. So in their view, you know, this knife can be concealed, it can be pulled out quickly. There’s really no evidence, they haven’t been able to provide any evidence and the Legal Aid Society’s analysis of their cases hasn’t shown any, um, you know, special propensity for people carrying gravity knives to engage in violence. There’s really no evidence that gravity knives are used more often than other kinds of knives.

Adam: Oh, is that right? Because I think historically had sort of a racialized association, right?

Jon Campbell: Yeah. I mean the, the, the backstory of this definitely caught up with, you know, racist rhetoric in the 1950s around juvenile delinquency. So there was kind of this period in the mid-forties to mid-fifties when there was a lot of nervousness about teenagers and delinquency as they termed it back then. And switch blades were associated with teenagers and especially inner city kids. And at a period of time when cities were increasingly integrated, switchblades became a symbol of that integration to an extent and a symbol of this new criminality that people were really scared about. New York passed a law against switchblades in 1954 and the gravity knife law was passed in 1958 and was pitched as kind of closing a loophole because gravity knives lacked a spring, they couldn’t be criminalized under the switchblade statute, but this was seen as a way to patch up an overlooked part of the law. And that’s a law that’s still on the books today.

Adam: Right. So you saw this kind of like West Side Story panic in the early sixties and fifties.

Jon Campbell: Yeah, and I mean there’s really not a lot of evidence that even switchblades back then were disproportionately used in crime. And actually there’s not really a lot of evidence that there was a significant rise in crime during that period. It may have been a problem of record keeping. There was a lot of worry and a lot of arguably hysteria. And, uh, I guess you could argue that this is kind of a legacy of that time period.

Adam: So you wrote about a lawsuit that was filed by two plaintiffs, John Copeland, a visual artists and Pedro Perez, an art dealer who were arrested in Manhattan almost ten years ago for possessing folding knives that they used in their trade as artists. And they were represented by a group called Knife Rights, which is an Arizona-based organization that advocates for the Constitutional rights of knife owners, which I didn’t know was a thing, but, so they’re suing them. And what’s their sort of general argument in this kind of broader knife owner’s rights movement?

Jon Campbell: Yeah, I mean so Knife Rights is probably best described as an NRA for knives and they do approach knife laws from a Second Amendment perspective in a lot of ways.

Adam: Oh really?

Jon Campbell: Yeah, you know, that it’s another arm and that people have a right to carry them. Maybe that’s obvious but they are a conservative organization and they’ve actually had a lot of success in rolling back knife laws in other states. They got involved in New York City I guess around 2010 with the Copeland case. They are not pursuing this case as a Second Amendment case though. It’s a vagueness challenge for the reasons that we just talked about that the wrist flick test is so subjective that it’s really impossible to tell whether your knife might pass it or not at some point in the future. Yeah. So John Copeland was an artist. He used a knife in his shop to cut canvas and for other, you know, tasks. He’s a painter and he had an experience that’s very much like the hypothetical they pose in their case, which was he had a knife, he approached police officers on the street on two separate occasions and asked them to test his knife. So they, you know, can you verify that this is, you know, a permitted legal knife? Two police officers told him, ‘yeah, it’s fine.’ They tested it and it was later that he was um, stopped because someone saw that pocket clip and the third officer arrested him.

Adam: It seems a little arbitrary to me.

Jon Campbell: Well, I guess they would say that it underscores just how difficult it is to comply with the law. Even if you really mean to, there’s no way to tell whether some officer down the line who is bigger or stronger or is, you know, more practiced at this wrist flick test might be able to open your knife and put you in jail.

Adam: So there’s a bill that’s being introduced in the New York State Legislature by why New York Assemblyman Dan Quart about trying to get, basically get rid of this altogether. What is the status of that and what does the prospect of that succeeding?

Jon Campbell: Yeah, so that piece of legislation has just been introduced, but this is attempt, by my count, attempt number four for some sort of reform measure. So two times in 2016 and 2017 a reform measure was passed. There were slightly different mechanisms for fixing the law in those two years, but they passed with a lot of support in the legislature, I mean almost unanimous support, but were ultimately vetoed by Andrew Cuomo. So Governor Cuomo and his veto messages cited concerns from law enforcement and also had some problems with the wording of the bill and how it was going to go about avoiding unnecessary arrests. He also called the law, the enforcement of the law, rather absurd. So he’s signaling that he’s not necessarily opposed to some sort of a fix, but this new legislation, which simply deletes the term gravity knife from the penal code is a little less careful than the other ones in the past. And it’s not obvious on its face whether it’s going to meet the concerns or the purported concerns that Cuomo expressed. He said that he would review the bill but didn’t say anything on the substance of, of that new legislation. So whether it will pass is up for debate. We do have sort of a new political reality in Albany after a decisive takeover in both houses by Democrats. So whether that’s gonna make the difference this year, I guess we’ll have to be, you know, remains to be seen.

Adam: Because it seems like there would be pushback from the NYPD and the police unions because it’s just something else you can do to sort of run people’s information. Right? I mean that seems to be a large part of this, that this is kind of a compounding factor for other kinds of crimes, which I suppose is the whole point of broken windows, right? You sort of harass people enough and eventually you’ll find guns or you’ll find a warrant for their arrest. It seems like this is something that’s such a vague thing that they would be hard pressed to let it go because presumably, you know, like if, if NYPD could arrest every other person with a red shirt they would. Right? I mean it’s sort of just something, it’s sort of something arbitrary you can sort of just harass people with. Is that kind of a fair part of the ethos of why they would not want to get rid of this law?

Jon Campbell: I mean, it might be fair to say that they want to keep their options open and they prefer to have the discretion.

Adam: That’s a polite way to put it. and polite.

Jon Campbell: And, you know, um, one version of this bill would have required criminal intent, which would definitely make the jobs of DAs and police harder if they wanted to arrest someone for one of these knives.

Adam: Right. Which is always the issue with possession even with guns quite frankly, is that like there’s a kind of pre-crime element to it. You’re arrested by virtue of having something. You haven’t really done anything.

Jon Campbell: Yeah. I mean that’s the basis of it, right? That it was the basis of a possession crime. So they were certainly opposed to that potential fix. Um, you know, the Manhattan DA has offered some compromise legislation or has offered some principles of compromise in the past on this legislation that would involve using a lock box to transport knives to and  from work or a licensing system. Opponents of this law really regard that as a poison pill. They don’t think that those are real solutions. I mean, there’s a real problem of how you’re going to administer a licensing system and who’s gonna pay for that. And maybe the main problem is that most people who are arrested with these knives have no idea that they’re illegal. I mean, they’re sold widely in hardware stores all over the city even now. So the idea that people are going to know enough to register their knives seems unrealistic. The main opponents of the law have been law enforcement. The Manhattan DA has been one prominent voice advocating against any changes or against these changes at least. Commissioner O’Neill of the NYPD has also come out against the law, as has Mayor Bill de Blasio and they are probably the sort of united front of people who are urging this law not to be altered.

Adam: I’m curious, can you put this in context with other, what is the amount of arrests for knives versus guns just to give some sense of context because I think people have a hard time wrapping their heads around like how big this is?

Jon Campbell: In 2014 based on the number of prosecutions or estimated prosecutions, again, because this is, it’s really hard to get real numbers. It was enough to put it in the top ten or very close to the top ten most prosecuted crimes in the city. So it’s not, I mean the gap between the tenth most prosecuted crime and the first most prosecuted crime is very wide, but you know 3,500 arrests, the estimate is per year. It’s a lot and I mean I don’t think it’s probably the most prosecuted crime in the city and clearly isn’t but for those 3,500 people who, even if their case ends up being dismissed as they often are, they may still end up going through the system. And as The Appeal demonstrated, even an arrest can have significant impact on people’s lives.

Adam: Yeah. And it really has to a large extent, I mean if, you know, people know about fare beating, fare beating is really just a way to do warrant roundups. It’s a way of just kind of running people’s information and, and then they later use that as a compounding factor for any prosecution, which you note is pretty severe here. If you have previous issues, they will, they will throw the book at you for a gravity knife.

Jon Campbell: Yeah. I guess it’s up to people’s interpretation, but when you have someone who, in many, many cases, the majority of the cases, it doesn’t have any criminal intent with the knife that’s in their pocket, doesn’t actually know that they’re carrying an illegal knife and can end up doing six years in prison. And the, you know, those cases are there. They are documented in my reporting. I mean that’s, that’s a long period of time and I think it’s a pretty serious penalty for that crime. Yeah.

Adam: I think we can go out on a limb and editorialize that that’s bad. Thank you so much Jon. I really appreciate you talking about this issue with us.

Jon Campbell: Alright man. Thank you.

Adam: A quick insert after this interview was recorded on March 28, 2019 a federal judge ruled that New York’s gravity knife law was unconstitutionally vague. It was a response to the lawsuit by Joseph Cracco who was arrested for carrying a pocket knife. This is obviously a meaningful development. It’s unclear what this means in practice, but just know that the federal judge agreed with our guest today and has subsequently ruled it unconstitutional. We will keep you up to date with any new developments on subsequent episodes.

Thank you to our guest Jon Campbell. This has been The Appeal podcast. Remember, you can always follow us on social media at The Appeal magazine’s main Facebook and Twitter page, and as always, you can subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer is Sarah Leonard. I’m your host Adam Johnson. Thank you so much for joining us. We’ll see you next week.