Amicus Curiae Brief — John Copeland, et al., Petitioners v. Cyrus R. Vance, Jr., et al.

No. 18-918

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------JOHN COPELAND, PEDRO PEREZ,

AND NATIVE LEATHER, LTD.,

Petitioners,

v.

CYRUS VANCE, JR. IN HIS OFFICIAL CAPACITY

AS THE NEW YORK COUNTY DISTRICT

ATTORNEY, AND CITY OF NEW YORK,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

-----------------------------------------------------------------MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF FOR LEGAL AID SOCIETY AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------MARTIN J. LAFALCE

LEGAL AID SOCIETY

49 Thomas St.

New York, N.Y. 10013

(212) 298-5013

mjlafalce@legal-aid.org

HARA A. ROBRISH

LEGAL AID SOCIETY

49 Thomas St.

New York, N.Y. 10013

(212) 298-5076

harobrish@legal-aid.org

RICHARD JOSELSON

Counsel of Record

LEGAL AID SOCIETY

199 Water St.

New York, N.Y. 10038

(212) 577-3451

rjoselson@legal-aid.org

WILLIAM D. GIBNEY

Director, Special Litigation Unit

LEGAL AID SOCIETY

199 Water St.

New York, N.Y. 10038

(212) 577-3419

wdgibney@legal-aid.org

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

1

MOTION FOR LEAVE TO FILE BRIEF

FOR AMICUS CURIAE

The Legal Aid Society respectfully moves for leave

to file the following brief as amicus curiae in support

of the petition for certiorari. All parties were notified

of amicus’s intent to file this brief more than 10 days

in advance of filing. Petitioner and Respondent New

York City, Corporation Counsel have consented to the

filing of this brief. Respondent Cyrus Vance Jr., New

York County, District Attorney has taken no position.

Amicus’s interest in this case arises from our representation of thousands of clients who have been

charged with gravity knife possession under New York

Penal Law Sections 265.01(1) and 265.02(1). This brief

will show that our clients are innocent New Yorkers

who are prosecuted for possessing tools that sell at major retailers across the country.

Our clients will continue to be unconstitutionally

prosecuted if the decision below goes unreviewed by

this Court. That decision—concluding that plaintiffs

must show that a law is vague in all of its applications

to succeed in a facial vagueness challenge—means

that a finding of a single lawful application of New

York’s gravity knife statute will deny thousands of our

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clients Due Process. We urge this Court to grant the

petition and review the Second Circuit’s decision.

Respectfully submitted,

RICHARD JOSELSON

Counsel of Record

Supervising Attorney

LEGAL AID SOCIETY

199 Water St.

New York, N.Y. 10038

(212) 577-3451

rjoselson@legal-aid.org

WILLIAM D. GIBNEY

Director, Special Litigation Unit

LEGAL AID SOCIETY

199 Water St.

New York, N.Y. 10038

(212) 577-3419

wdgibney@legal-aid.org

MARTIN J. LAFALCE

LEGAL AID SOCIETY

49 Thomas St.

New York, N.Y. 10013

(212) 298-5013

mjlafalce@legal-aid.org

HARA A. ROBRISH

LEGAL AID SOCIETY

49 Thomas St.

New York, N.Y. 10013

(212) 298-5076

harobrish@legal-aid.org

Dated: February 15, 2019

i

QUESTION PRESENTED

Whether a plaintiff need show that a law is vague

in all of its applications to succeed in a facial vagueness challenge.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

8

I.

II.

The Second Circuit’s Failure to Apply

Johnson and Dimaya Perpetuates a Notice

Crisis ..........................................................

8

The Second Circuit’s Failure to Apply

Johnson and Dimaya Insulates Respondents’ Abuse of Black and Hispanic Men

From Judicial Scrutiny .............................. 12

CONCLUSION..................................................... 23

iii

TABLE OF AUTHORITIES

Page

CASES

City of Chicago v. Morales, 527 U.S. 41 (1999)...........12

Connally v. General Construction Co., 269 U.S.

385 (1926) ................................................................11

Copeland v. Vance, 893 F.3d 101 (2d Cir.

2018) .............................................................. 8, 10, 11

Giaccio v. State of Pa., 382 U.S. 399 (1966) ................12

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 12

Johnson v. United States, 135 S. Ct. 2551 (2015) ......... 7

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ..............12

Papachristou v. City of Jacksonville, 405 U.S. 156

(1972) ................................................................. 11, 14

People v. Best, 57 A.D.3d 279 (1st Dept. 2008) ...........15

People v. Gonzalez, 25 N.Y.3d 1100 (2015) .................23

People v. Neal, 79 A.D.3d 523 (1st Dept. 2010),

lv. denied, 16 N.Y.3d 799 (2011) .......................... 7, 17

People v. Parrilla, 27 N.Y.3d 400 (2016) ............. 4, 7, 19

People v. Rodriguez, 135 A.D.3d 587 (2016) ...............20

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ........... 7, 12

Thornhill v. Alabama, 310 U.S. 88 (1940) ..................11

United States v. Salerno, 481 U.S. 739 (1987)..............7

iv

TABLE OF AUTHORITIES – Continued

Page

STATUTES

N.Y. Penal Law § 265.01(1)..................................... 1, 13

N.Y. Penal Law § 265.02(1)............................... 1, 13, 14

OTHER AUTHORITIES

S6483, Sen. Reg. Sess. 2015-2016 (N.Y. 2016) ......... 2, 4

S4769A, Sen. Reg. Sess. 2017-2018 (N.Y.

2017). ............................................................. 4, 23, 24

Cyrus R. Vance Jr., Letter To The Editor: Keep

The Ban on Gravity Knives, N.Y. Times, June

6, 2016 .......................................................................4

Daniel Victor, Cuomo Vetoes Bill to Overhaul

Gravity Knife Law for Second Straight Year,

N.Y. Times, Oct. 24, 2017 ..........................................4

Issa Kohler-Hausmann, Misdemeanor Justice:

Control without Conviction, American Journal of Sociology Vol. 119, No. 2 (September

2013) ........................................................................13

John Eligon, 14 Stores Accused of Selling Illegal

Knives, N.Y. Times, June 17, 2010 ........................ 5, 8

Jon Campbell, Did Authorities Lose More Than

1,300 Confiscated Knives, Village Voice, May

21, 2015 .....................................................................9

Jon Campbell, How a ’50’s Era New York Knife

Law Has Landed Thousands In Jail, Village

Voice, Oct. 7, 2014 ...................................................10

v

TABLE OF AUTHORITIES – Continued

Page

Malcolm Feeley, The Process Is the Punishment,

Russell Sage Foundation (October 1979) ...............13

Rocco Parascandola, Mayor de Blasio, Top Cop

James O’Neill Plead for Gov. Cuomo to Keep

Gravity Knives Illegal, N.Y. Daily News, Oct.

11, 2016 .....................................................................4

William J. Bratton, A Perilous Push to Legalize

More Knives, N.Y. Daily News, June 25, 2016 ..........6

1

INTEREST OF AMICUS CURIAE1

The Legal Aid Society (Legal Aid) is the oldest

and largest private non-profit legal services agency in

the nation, dedicated since 1876 to providing quality

legal representation to low-income New Yorkers. It has

served as New York’s primary public defender since

1965 and has represented thousands of individuals arrested by the New York City Police Department

(NYPD) and prosecuted by the New York County District Attorney’s Office (DANY) for alleged violations of

New York Penal Law Sections 265.01(1) and 265.02(1)

for possession of so-called “gravity knives.” Legal Aid

is deeply concerned that the decision below will perpetuate one of the nation’s most arbitrary law enforcement regimes, a regime where thousands of innocent

New Yorkers are prosecuted for possessing tools that

sell at major retailers across the country. That regime

is an affront to the legitimacy of criminal law and a

case-study in how vague criminal standards breed systemic law enforcement abuses.

If the decision below stands—that plaintiffs

bringing a facial challenge must show no set of

All parties were notified of amicus’s intent to file this brief

more than 10 days in advance of filing. Petitioner and Respondent

New York City, Corporation Counsel have consented to the filing

of this brief. Respondent Cyrus Vance Jr., New York County, District Attorney has taken no position.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than amicus curiae, its members, or its counsel made a monetary contribution to its preparation or submission.

1

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circumstances under which a statute may be validly

applied—Respondents’ arbitrary regime will remain

intact and thousands of innocent New Yorkers will continue to be prosecuted for possessing tools that sell

across the country. We urge this Court to grant the petition and review the Second Circuit’s decision.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

On December 31, 2016 Governor Andrew Cuomo

vetoed S6483A, a bill designed to overhaul New York

State’s gravity knife statute. The veto was a setback

for criminal justice reform, but the Governor’s message

cemented a consensus that Respondents’ tortured interpretation of the gravity knife statute renders it

vague, the very harm that Petitioners ask this Court

to address. The Governor wrote:

Under current New York Law and practice

knives that are classified as gravity knives

are designed, marketed and sold as work tools

for construction workers and day laborers at

a variety of major retailers across the State.

However, any person who goes into a store and

purchases the product can be subsequently

arrested and prosecuted for mere possession.

This construct is absurd[.]

The bill seeks to amend a law designed to outlaw a knife created in the 1950s for use by

German paratroopers, which could truly open

by the force of gravity alone. The law has been

subsequently interpreted to include knives

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that could be opened with the flick of one

hand. This interpretation of the “gravity knife”

has resulted in a definition that is both amorphous, subject to abuse and could include

nearly any pocket knife.

Governor Andrew M. Cuomo, Veto Message #299, December 31, 2016. (emphasis added).2

What the Governor conceded as absurd from the

Executive Chamber—that tools sold across New York

State may be deemed illegal weapons with the flick of

a wrist—causes thousands of New Yorkers to suffer

from Central Booking pens, and in some cases, for

years from state prison cells.

We write on behalf of those New Yorkers, thousands of low-income clients who have been ensnared

by Respondents’ absurd gravity knife enforcement regime, and denied Due Process as a result of the decision below, New Yorkers like Elliot Parrilla who was

sentenced to 2.5 to 5 years in prison for possessing this

utility knife that he purchased at Home Depot:

Governor Cuomo explained that he vetoed the bill because,

in his opinion, its language did not adequately address NYPD’s

abusive use of the wrist-flick and that it would have placed a burden on law enforcement to determine the design attributes of all

knives. His full veto message can be read here: https://www.

scribd.com/document/335423671/Veto-299-305.

2

4

People v. Parrilla, 27 N.Y.3d 400 (2016).

Parrilla’s freedom turned on whether an officer

was skilled enough to force his knife open with the flick

of a wrist, a test that the New York State Legislature

never intended and has twice voted to repeal. S6483,

Sen. Reg. Sess. 2015-2016 (N.Y. 2016); S4769A, Sen.

Reg. Sess. 2017-2018 (N.Y. 2017). That test remains

law because Governor Cuomo has deferred to Respondents’ pleas to keep it intact. See Cyrus R. Vance Jr., Letter To The Editor: Keep The Ban on Gravity Knives, N.Y.

Times, June 6, 2016; Rocco Parascandola, Mayor de

Blasio, Top Cop James O’Neill Plead for Gov. Cuomo to

Keep Gravity Knives Illegal, N.Y. Daily News, Oct. 11,

2016; Daniel Victor, Cuomo Vetoes Bill to Overhaul

Gravity Knife Law for Second Straight Year, N.Y.

Times, Oct. 24, 2017.

5

In the Court below, Petitioners correctly attacked

that test—the Wrist-Flick Test—as rendering the

gravity knife statute void for vagueness. The Test is

impossible for ordinary New Yorkers to follow because

under the Test criminal liability turns on a police officer’s skill, not the design or intended use of a knife.

For example, in this video a police officer opens a folding knife after two attempts: https://vimeo.com/

279715177. But seconds later, the same officer can only

open same knife after nine attempts: https://vimeo.com/

279715241.3 Similarly, an arresting officer is unable

to open a folding knife here: https://vimeo.com/

316864880. But seconds later, the prosecutor assigned

to the case flicks open the same knife with relative

ease: https://vimeo.com/316864123.4

Such a vague standard has generated widespread

confusion as to what the gravity knife law commands.

So much confusion that sophisticated law-abiding actors Home Depot, Amazon.com, Ace Hardware, Lowes,

AutoZone and hundreds of other retailers have possessed and sold the very same knives that thousands

of our low-income clients are prosecuted for possessing.

See, e.g., John Eligon, 14 Stores Accused of Selling

These videos were filmed on May 16, 2018 at DANY offices

at 80 Centre St. in Manhattan. Despite the officer’s poor success

rate, DANY deemed the folding knife an unlawful gravity knife

and prosecuted our client. The case was ultimately resolved with

an adjournment in contemplation of dismissal and a requirement

that our client perform community service.

4

These videos were filmed on May 8, 2018 at DANY offices

at 1 Hogan Place in Manhattan. The case remains open and is

charged as a felony.

3

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Illegal Knives, N.Y. Times, June 17, 2010 (“A spokesman for Home Depot, Stephen Holmes, said the company did not know that the knives were illegal in New

York.”). Even former NYPD Commissioner William J.

Bratton revealed that he did not understand New

York’s gravity knife law when he encouraged New

Yorkers to possess the same knives that NYPD arrests

thousands of New Yorkers for possessing: “There are

many alternative cutting instruments for tradespeople, including the widely used utility knife with a halfinch blade and the standard folding knife that requires

manual blade manipulation and some pressure to

open.” William J. Bratton, A Perilous Push to Legalize

More Knives, N.Y. Daily News, June 25, 2016. Commissioner Bratton did not understand that New Yorkers

are regularly arrested for possessing utility knives and

standard folding knives designed to require manual

blade manipulation just like those pictured here:

7

See, e.g., People v. Parrilla, 27 N.Y.3d 400 (2016); People

v. Neal, 79 A.D.3d 523, 524 (1st Dept. 2010), lv. denied,

16 N.Y.3d 799 (2011).

The decision below keeps this absurd regime in

place where thousands of ordinary New Yorkers are

ensnared by a statute that Home Depot, Amazon.com

and Commissioner Bratton are unable to follow. The

Second Circuit erroneously concluded that if a court

can find that the statute was validly applied to a single

plaintiff in the past—in this case Native Leather—

then thousands of other New Yorkers must be denied

systemic relief. See United States v. Salerno, 481 U.S.

739, 745 (1987). That conclusion ignores this Court’s

decisions in Johnson v. United States, 135 S. Ct. 2551

(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018)

which relaxed such severe requirements.

In this brief we will demonstrate two grave consequences of the Second Circuit’s decision. First, the decision perpetuates a notice crisis. Folding knives are

ubiquitous at major retailers and local hardware

stores throughout New York City. Their presence gives

ordinary New Yorkers the impression that they are

lawful. A person cannot steer between lawful and unlawful conduct when a folding knife appears as a tool

on a store shelf, but is treated as a per se weapon once

purchased and found in a worker’s hand. Second, the

decision allows Respondents to continue to treat the

gravity knife statute as a modern-day vagrancy law,

exploiting the vast net that the Wrist-Flick Test creates to punish Black and Hispanic men for innocent

conduct, not individuals who have committed a clear

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violation of a precise code. The Court’s decision below

insulates these systemic abuses from judicial scrutiny,

leaving thousands of ordinary New Yorkers without relief. For those reasons, we urge this Court to grant the

petition and review the Second Circuit’s decision.

------------------------------------------------------------------

ARGUMENT

I.

The Second Circuit’s Failure to Apply Johnson and Dimaya Perpetuates a Notice Crisis

On June 17, 2010, DANY called a press conference

to announce that it had entered into deferred prosecution agreements with NYC retailers who it claimed

were selling illegal gravity knives. John Eligon, 14

Stores Accused of Selling Illegal Knives, N.Y. Times,

June 17, 2010. Retailers like Native Leather had no

reason to believe that they possessed unlawful items.

They sold folding knives—tools—not knives that

opened by force of gravity, nor knives that were designed to open with centrifugal force. But under Respondents’ tortured interpretation of the gravity knife

statute, where the amorphous Wrist-Flick Test triggers criminal liability, the retailers relented, and

agreed to settle with DANY for $2.8 million. Brief for

Appellant at 23 Copeland v. Vance, 893 F.3d 101 (2d

Cir. 2018).

At the time of the 2010 press conference, DANY

announced that it would spend $900,000 of the $2.8

million on a knife education campaign, knife buy-back

program and efforts to police retailers throughout the

9

city. Jon Campbell, Did Authorities Lose More Than

1,300 Confiscated Knives, Village Voice, May 21, 2015.

As of 2015, more than $800,000 of the $900,000 remained unspent. Id.

DANY never initiated a knife education campaign

or buy-back program. And folding knives remain for

sale across the city and state at major retailers like

AutoZone https://bit.ly/2SKgEar; Ace Hardware https://

bit.ly/2u5Kl82; Lowes https://low.es/2J9DorD; Dicks

Sporting Goods, https://bit.ly/2KWynri; and Amazon.

com https://amzn.to/2L2WdOI. None of the stores provide customers with warnings that the folding knives

they sell may be deemed unlawful with the flick of a

wrist, nor did DANY require retailers to provide warnings when it negotiated the deferred prosecution

agreements.

Eight years after the DANY press conference, the

knives remain ubiquitous in Manhattan, as shown in

this map:5

https://bit.ly/2MX9l8w

Whether folding knives identified on the map can be

flicked open depends entirely on the subjective skill of

individual officers.

While folding knives sell across the city, Respondents aggressively target thousands of individual New

In June of 2018 Legal Aid Society investigators found 130

stores in Manhattan that sell folding knives that NYPD regularly

arrests Legal Aid clients for possessing. Store locations and knife

images can be seen by clicking on the map pin drops.

5

10

Yorkers who purchase and possess the very same

knives. According to the Village Voice more than

60,000 New Yorkers were arrested for alleged gravity

knife possession from 2000 until 2010. Jon Campbell,

How a ’50’s Era New York Knife Law Has Landed

Thousands In Jail, Village Voice, Oct. 7, 2014.

Additionally, at the time of the 2010 deferred prosecution agreements, DANY exempted Paragon Sports

from selling high-end custom made knives—that

NYPD and DANY consider gravity knives, if capable of

being flicked open—on the unfounded rationale that

expensive knives are not used to harm people. ADA

Dan Rather explained the Paragon exemption during

a deposition in Copeland v. Vance:

Q. At the end of this paragraph 4A

there’s a statement, “However, this agreement

exempts Paragon’s sale of custom knives, defined as individual, one of a kind handcrafted

knives, separately marketed and sold to collectors.”

A.

I see that.

Q. And why was this provision included?

A. It was a negotiated provision in order

to reach an agreement. Paragon uniquely

based on our investigation—or almost

uniquely had an inventory and displayed as

merchandise very high end kind of one of a

kind knives for—for collectors, real high end

stuff. And it was negotiated that the agreement would not—that those knives if they did

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constitute a prohibited knife would be excluded from the DPA. Both as an incentive to

enter into the agreement, but also to reflect

that we were just not seeing a thousand, or

$2,000, or $5,000 knives being plunged into

people’s temples and cutting people up. And so

that the risk comparatively of those knives

was less than other knives.

Q. The basic rationale is someone is

probably not going to spend a couple of thousand dollars to stab someone?

A.

Essentially, yeah.

Rather Dep. 101-102, Apr. 27, 2012, Copeland v. Vance,

893 F.3d 101 (2d Cir. 2018). Today, Paragon sells expensive knives as authorized by DANY, http://bit.ly/

2rPxgMN, as well as the very same inexpensive knives

that thousands of New Yorkers are regularly arrested

for possessing, http://bit.ly/2qLlAwR.

Such arbitrary enforcement has created a notice

crisis, forcing New Yorkers “of common intelligence [to]

necessarily guess at [the statute’s] meaning and differ

as to [its] application.” See Connally v. General Construction Co., 269 U.S. 385 (1926); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); Papachristou v. City of

Jacksonville, 405 U.S. 156, 165-66 (1972).

New Yorkers cannot “steer between lawful and unlawful conduct” when a utility knife appears as a tool

at Ace Hardware—and a collector’s item at Paragon—

but is treated as an illegal weapon once a working person commutes with it to his construction site. See

12

Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972). New Yorkers who purchase folding knives at

NYC retailers are not merely speculating as to what

the law commands, they are hijacked by NYPD and

DANY’s application of it. See Lanzetta v. New Jersey,

306 U.S. 451, 453 (1939). This sets an insidious trap for

thousands of unwitting New Yorkers, “leaving [them]

in the dark about what the law demands and allowing

prosecutors and courts to make it up.” Sessions v. Dimaya, 138 S. Ct. 1204, 1224 (2018) (Gorsuch, J., concurring).

The Wrist-Flick Test breeds such grossly unequal

enforcement, and the Second Circuit’s decision below

perpetuates it. The Test is so vague that it cedes to Respondents unfettered discretion to target those groups

deemed to merit their displeasure. See Giaccio v. State

of Pa., 382 U.S. 399, 402-03 (1966); City of Chicago v.

Morales, 527 U.S. 41, 61 (1999).

II.

The Second Circuit’s Failure to Apply

Johnson and Dimaya Insulates Respondents’ Abuse of Black and Hispanic Men

From Judicial Scrutiny

NYPD and DANY abuse the gravity knife statute

to cast a vast net around thousands of New Yorkers

every year to punish men of color. See Giaccio v. State

of Pa., 382 U.S. 399, 402-03 (1966); City of Chicago v.

Morales, 527 U.S. 41, 61 (1999). According to a 6-month

sample of Legal Aid criminal complaints, we estimate

that 3,500 New Yorkers were arrested for gravity knife

13

possession in 2018. 85% of those New Yorkers were

Black or Hispanic and 96% were men.6

Most New Yorkers arrested for gravity knife possession are charged with a misdemeanor punishable

by up to one year in jail, and the majority of those

charged with misdemeanors resolve their cases with

non-jail, non-criminal dispositions. Of course, even a

case that culminates in an eventual dismissal can

wreak havoc on a person’s life. Legal Aid clients endure

the humiliation of arrest and detention, miss days of

work, suffer suspensions and refrain from applying for

work because of pending cases. They may be required

to perform community service in order to obtain an adjournment in contemplation of dismissal or in exchange for a violation plea. If they are convicted of a

violation or a misdemeanor, they pay mandatory surcharges and face jail time and the collateral consequences of a criminal conviction. See Issa KohlerHausmann, Misdemeanor Justice: Control without

Conviction, American Journal of Sociology Vol. 119, No.

2 (September 2013); Malcolm Feeley, The Process Is the

Punishment, Russell Sage Foundation (October 1979).

New Yorkers with previous criminal convictions

fare even worse because prosecutors have vast

Legal Aid reviewed 2,775 criminal complaints from the first

six months of 2018 that charged violations of Penal Law Sections

265.01(1) and 265.02(1). 885 of those cases charged gravity knife

possession. Legal Aid represents approximately 50% of all defendants charged in New York City. Therefore, we estimate that approximately 3,500 New Yorkers were arrested for gravity knife

possession in 2018.

6

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discretion to charge them with felony gravity knife

possession under N.Y. Penal Law § 265.02(1). The different practices of the different DA’s offices in New

York City illustrate the potential for abuse. DANY is

singular in its prosecutorial overzeal. In 2018, it

brought felony gravity knife charges against Legal Aid

Society clients more often than all other New York City

prosecutors combined.7

Such broad discretion conferred on prosecutors

harkens to state abuse of vagrancy laws condemned in

Papachristou v. City of Jacksonville, 405 U.S. 156

(1972). There, the Jacksonville vagrancy ordinance

prohibited acts including “disorderly conduct,” “loitering” and “common thief,” and carried a penalty of up to

90 days in jail. The ordinance there, like the amorphous Wrist-Flick Test here, was designed “to allow the

net to be cast at large, to enable men to be caught who

are vaguely undesirable in the eyes of police and prosecution.” Id. at 166. It furnished “a convenient tool for

‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to

merit their displeasure.’ ” Id. at 170. Here, we narrate

a selection of felony prosecutions to demonstrate what

happens when NYPD and DANY exploit the gravity

knife statute as a convenient tool to bludgeon men of

color.

According to a 6-month sample of 2018 felony gravity knife

complaints, prosecutors charged gravity knife possession at the

following rates: 2 cases in Bronx County, 9 cases in Kings County,

9 cases in Queens County, 18 cases in Richmond County and 45

in cases New York County.

7

15

Antoine Best8

On September 17, 2006 Antoine Best, who was 22,

Black and had a criminal record, had just finished

working at Starbucks when he entered the subway

area at Grand Central Station. He was headed to his

home in Long Island, when plainclothes police officers

stopped him for having a folding knife clipped to his

jeans. He used the knife at Starbucks for cutting boxes.

A police officer was able to flick it open with one hand.

(B.R. 10). According to police, Best was calm and cooperative. There was no allegation that he attempted to

use the knife unlawfully, nor any evidence that he

could open the knife with the flick of a wrist, nor any

evidence that he knew an officer could do so. Best was

arrested and charged with felony possession of a

weapon. At his first trial, the jury hung. DANY chose

to try him again. He was convicted after a second trial.

He was sentenced to 2.5 to 5 years in prison. People v.

Best, 57 A.D.3d 279 (1st Dept. 2008) Eleven years after

his arrest, Best’s knife continued to sell in the heart of

Manhattan at Henry Westpfal and Co. and continues

to sell on Amazon.com today https://amzn.to/2FlUiVD:

“B.R.,” “N.R.,” “P.R.,” “R.R.” and “G.R.” respectively refer to

the Best, Neal, Parrilla, Rodriguez and Gonzalez state records on

appeal.

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Best Knife

Henry Westpfal and Co. Knife9

Richard Neal

On June 11, 2008 Richard Neal, who was 53, Black

and had a criminal record, left his mother’s home on

the Lower East Side of Manhattan. He was walking

with a friend when police approached and asked him

what was clipped to his jeans. (N.R. 8). He told them it

was a knife. A police officer took it from Neal and was

able to flick it open with one hand. (N.R. 11). There was

no allegation that Neal intended to use the knife unlawfully, nor any evidence that he could open the knife

with the flick of a wrist, nor any evidence that he knew

an officer could do so. Prosecutors elected to charge

him with felony possession of a weapon. At trial a police officer described Neal as exhibiting a “very calm”

demeanor at the time of his arrest. (N.R. 8). The officer

additionally testified that Neal was “just talking, walking” with his friend. (N.R. 8). While testifying, the police officer opened the knife with the flick of a wrist.

(N.R. 254-255). Neal was convicted. At sentencing the

This picture was taken by amicus counsel at Henry Westpfal and Co. on 115 W. 25th St. on February 21, 2017.

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prosecutor congratulated himself for not asking the

Court to treat Neal as a discretionary persistent felon

and sentence him to life in prison:

Judge, as you know, based on this defendant’s

history, he is—he certainly would be a discretionary persistent. I’m not asking that you

find him that at this time, but I’m just indicating to you the history that this defendant has

of numerous felony convictions including for

robbery in which he used a knife. In this case

as you know, he had a knife on him. There is

no allegations (sic) that he was actually using

it, but he did have a knife on him, and with

his multiple felony convictions, we are recommending three and a half to seven years in

jail. (N.R. 445-446).

The robbery in which Neal had used a knife occurred 22 years prior. Nevertheless, Neal was sentenced to 3 to 6 years in prison, every day of which he

served. People v. Neal, 79 A.D.3d 523, 524 (1st Dept.

2010), lv. denied, 16 N.Y.3d 799 (2011). In 2015, more

than 8 years after NYPD and DANY committed Neal

state prison, Neal’s knife sold at Lowes in Brooklyn

and today it continues to sell for $6.95 on Amazon.com:

https://amzn.to/2SwdYtd:

18

Richard Neal Knife

Lowes Brooklyn Knife10

Elliot Parrilla

On February 3, 2011 Elliot Parrilla, who was 31,

Hispanic and had a criminal record, was working, tiling a floor at his ex-girlfriend’s home on 96th St. in

Manhattan. (P.R. 456-457). When he was done working

for the night, he placed his tools in his car including a

Husky utility knife that he had purchased at Home Depot in the Bronx. (P.R. 457-460). Police officers stopped

Parrilla on Lexington Avenue for driving with broken

brake lights. (P.R. 268, 384-385). Police frisked Parrilla

and searched his car. They recovered the Husky utility

knife. An officer was able to flick it open with one hand.

(P.R. 366, 397-399). There was no allegation that Parrilla attempted to use the knife unlawfully, nor any evidence that he could open the knife with the flick of a

This picture was taken by amicus counsel at Lowes Home

Improvement 118 2nd Avenue Brooklyn, N.Y. on September 6,

2015.

10

19

wrist, nor any evidence that he knew that an officer

could do so. Prosecutors charged him with felony possession of a weapon. At trial, the arresting officer

struggled to open the knife with the flick of a wrist, but

ultimately succeeded. (P.R. 402, 511). Prosecutors

sought to preclude Parrilla from testifying that he purchased the knife at Home Depot in the Bronx. (P.R. at

232-236). Parrilla was convicted. He was sentenced to

2.5 to 5 years in state prison. People v. Parrilla, 27

N.Y.3d 400 (2016). Parrilla’s knife is one of the most

common utility knives in the country, and continues to

sell at hundreds of stores across New York City and on

Amazon.com: https://amzn.to/2L8QJTH.

Parrilla Knife

Ace Hardware Knife

Jesus Rodriguez

On August 24, 2011 police stopped Jesus Rodriguez on a stairwell in a public housing building on the

Lower East Side of Manhattan. Rodriguez, who was 27,

Hispanic and had a criminal record, was arrested for

trespass, because he was unable to prove that he was

an invited guest in the building. (R.R. 36). Police

20

searched Rodriguez and recovered a black carabiner

that contained several tools including a bottle opener,

screwdriver and fold-out knife. (R.R. 38). The arresting

officer was able to force the carabiner’s knife open with

the flick of a wrist. (R.R. 40). There was no allegation

that Rodriguez attempted to use the knife unlawfully

against any person, nor any evidence that he could

open the knife with the flick of a wrist, nor any evidence that he knew that an officer could do so. Rodriguez was initially charged with misdemeanor

possession of a weapon. The prosecutor failed to answer ready for trial on multiple court dates. On July

20, 2012, in the face of an imminent speedy trial dismissal, without notice to Rodriguez, the assigned prosecutor extended the speedy trial clock by indicting the

case as a felony. At trial Rodriguez’s brother testified

that he purchased the carabiner at a hardware store in

Manhattan and gave it to Rodriguez to help him with

maintenance work. (R.R. 121-122). His brother testified that he had never seen Rodriguez open the folding

knife with the flick of a wrist. (R.R. 125). When the arresting officer testified, he struggled to open the knife,

could not do so every time, but was ultimately able to

open the knife. (R.R. 60, 102-103). Rodriguez was convicted. He was sentenced to 2 to 4 years in state prison.

His conviction was reversed on speedy trial grounds,

but only after he had spent more than two years in

prison. People v. Rodriguez, 135 A.D.3d 587 (2016). Today, the carabiner continues to sell on Amazon.com for

$5.99: https://amzn.to/2Qm0QtV.

21

Rodriguez Carabiner Amazon.com Carabiner

Richard Gonzalez

On April 14, 2011 Richard Gonzalez, who was 50,

Hispanic and had a criminal record, was commuting

from his home in the Bronx to a jobsite in New Jersey

where he worked as a handyman. (G.R. 37). Gonzalez

attempted to transfer from the 6 train to the 4/5 trains

at the Lexington Avenue and 125th St. subway station.

Several police officers were standing on the stairwell

blocking Gonzalez from using the stairs. According to

the officers Gonzalez said “Fuck you guys. This is bullshit. You’re not doing anything at all. Stop blocking the

stairs. Get out of my way.” (G.R. 220). Police stopped

Gonzalez and searched him. They recovered a Husky

utility knife that Gonzalez had purchased at Home Depot in the Bronx:

22

An officer was able to flick the knife open with one

hand. (G.R. 18). There was no allegation that Gonzalez

attempted to use the knife unlawfully, nor any evidence that he could open the knife with the flick of a

wrist, much less that he knew an officer could do so.

Nevertheless, prosecutors elected to charge him with

felony possession of a weapon. At his suppression hearing, the Court found the police witnesses to be credible,

and declined to suppress the utility knife. Gonzalez

burst out:

Fucking cops do whatever the fuck they do,

they steal, they rob drug dealers, they do

every fucking thing, but they honest, right, because they cops. Cock sucker, you mother

fucker, suck my dick [Judge] Farber, you son

of a bitch. Now I’m fucking mad, now you can

say I am being fucking disorderly, now. People

fucking work and you cannot see that, you son

of a bitch. (G.R. 69).

At trial, the arresting officer conceded that he had

practiced the Wrist-Flick Test some 200-300 times before arresting Gonzalez. (G.R. 235). Gonzalez was convicted. The prosecutor sought a sentence of 3.5 to 7

years in prison, the maximum penalty permitted under the law:

23

I believe that the defendant should be sentenced to the maximum sentence allowed,

which is three and a half to seven years. People are making this recommendation due to

the defendant’s extensive criminal history,

due to the defendant’s conduct during the

course of this proceeding, as well as the hearing which included outbursts to Judge Farber,

and as well as, your Honor, and as well as myself. (G.R. 348).

Gonzalez was sentenced to 3.5 to 7 years. His conviction was reversed by the Court of Appeals, but only

after Gonzalez had spent more than 4 years in prison.

People v. Gonzalez, 25 N.Y.3d 1100 (2015). At oral argument the Court of Appeals cut to the obvious. DANY

penalized Gonzalez for his foul mouth, not because possessing a Home Depot utility knife was a clearly defined crime. Watch Gonzalez in his own words and

portions of the Court of Appeals oral argument here:

http://bit.ly/2rbsLv3.

------------------------------------------------------------------

CONCLUSION

In 2017, the Legislature responded to Governor

Cuomo’s 2016 veto and voted to eliminate “centrifugal

force” from the statutory definition of a gravity knife.

S4769A, Sen. Reg. Sess. 2017-2018 (N.Y. 2017). That

legislation passed by margins of 136-1 in the Assembly

and 61-1 in the Senate. Id. It would have clarified the

definition of a gravity knife, eliminated the Wrist-Flick

Test, exempted possession of folding knives from prosecution and solved the enforcement problem that

24

Respondents have created. The Legislature explained

its justification for the bill:

In the 1950s, amid a widespread fear of knife

crime, the Legislature enacted a sweeping ban

of switch blades and gravity knives. Decades

later, the application of this law has been expanded to include any common folding knife

. . . This bill will solve the problem by clarifying that the Legislature’s intent is not to ban

all pocket knives, but to ban switchblades and

gravity knives, two very specific kinds of

weapons with very specific characteristic

mechanisms.

Justification Statement, S4769A, Reg. Sess. 2017-2018

(N.Y. 2017).

But Respondents rallied in opposition and Governor Cuomo vetoed for a second straight year. Governor

Andrew M. Cuomo, Veto Message #171, October 23, 2017.

What is at stake for the parties in this petition is

not the presence of folding knives in New York City—

they are already ubiquitous—but the power of police

and prosecutors to arbitrarily choose whom to target,

punish and imprison. Our clients—Elliot Parrilla,

Richard Neal, Antoine Best, Jesus Rodriguez, Richard

Gonzalez and tens of thousands of other men of color

in New York—have long suffered under a law that is

absurd, amorphous and subject to systemic abuse. It is

a law that the Legislature does not support and the

Due Process Clause does not permit. The Second Circuit’s decision insulates that law from meaningful

scrutiny and prevents our clients from enjoying

25

systemic relief. We urge this Court to grant the petition

and review the Second Circuit’s decision.

Respectfully submitted,

RICHARD JOSELSON

Counsel of Record

Supervising Attorney

LEGAL AID SOCIETY

199 Water St.

New York, N.Y. 10038

(212) 577-3451

rjoselson@legal-aid.org

WILLIAM D. GIBNEY

Director, Special Litigation Unit

LEGAL AID SOCIETY

199 Water St.

New York, N.Y. 10038

(212) 577-3419

wdgibney@legal-aid.org

MARTIN J. LAFALCE

LEGAL AID SOCIETY

49 Thomas St.

New York, N.Y. 10013

(212) 298-5013

mjlafalce@legal-aid.org

HARA A. ROBRISH

LEGAL AID SOCIETY

49 Thomas St.

New York, N.Y. 10013

(212) 298-5076

harobrish@legal-aid.org