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

Supreme Court briefMay 13, 2019

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No. 18-918

IN THE

Supreme Court of the United States

JOHN COPELAND, PEDRO PEREZ, AND NATIVE

LEATHER LTD.,

Petitioners,

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

BRIEF FOR THE CITY

OF NEW YORK IN OPPOSITION

ZACHARY W. CARTER

Corporation Counsel of the

City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

RICHARD DEARING*

CLAUDE S. PLATTON

NWAMAKA EJEBE

*Counsel of Record

Counsel for City Respondent

COUNTERSTATEMENT OF

QUESTION PRESENTED

A New York statute prohibits as a “gravity

knife” any folding knife that can be opened and

locked in place using centrifugal force or gravity.

Petitioners, two individuals and a retailer that

were arrested and prosecuted for violating this

statute, assert that the statute is void for

vagueness because the “wrist-flick test” used by law

enforcement to identify such knives produces

inconsistent results.

The question presented is as follows:

Do Johnson v. United States, 135 S. Ct. 2551

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

(2018), permit petitioners to establish the facial

invalidity of the statute notwithstanding the

district court’s undisturbed factual findings, after a

bench trial, that the wrist-flick test produced

consistent results as applied to petitioners’ own

knives, and produces consistent results as applied

to other knives?

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION

PRESENTED ............................................................ i

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

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

INTRODUCTION..................................................... 1

STATEMENT ........................................................... 3

A. The gravity-knife statute .............................. 3

B. The petitioners’ lawsuit ................................. 5

C. The bench trial and the district court’s

ruling .............................................................. 7

D. The court of appeals’ affirmance ................... 9

REASONS FOR DENYING THE PETITION ....... 12

A. The superficial conflict between the

circuits does not require this Court’s

intervention. ................................................ 13

B. This case would be a poor vehicle for

resolving the question presented because

it is unpreserved and academic here. ......... 18

C. The issues raised by amici are beyond

the scope of the question presented. ........... 23

CONCLUSION........................................................ 32

iii

TABLE OF AUTHORITIES

Page(s)

CASES

City of Chicago v. Morales,

527 U.S. 41 (1999) ............................. 9, 10, 25, 26

Cracco v. Vance,

No. 14 Civ. 8235 (PAC), 2019 U.S.

Dist. LEXIS 52292 (S.D.N.Y. Mar.

27, 2019) ............................................................ 28

Crooks v. Mabus,

845 F.3d 412 (D.C. Cir. 2016) ........................... 17

Delta Air Lines v. August,

450 U.S. 346 (1981) ........................................... 18

Doe v. Cooper,

842 F.3d 833 (4th Cir. 2016) ............................. 15

Doe v. Reed,

561 U.S. 186 (2010) ........................................... 24

Expressions Hair Design v.

Schneiderman,

137 S. Ct. 1144 (2017) ................................. 16, 25

Giaccio v. Pa.,

382 U.S. 399 (1966) ........................................... 26

Henry v. Spearman,

899 F.3d 703 (9th Cir. 2018) ............................. 20

Hoffman Estates v. Flipside, Hoffman

Estates,

455 U.S. 489 (1982) ..................................... 20, 25

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ......................................... 19, 20

Johnson v. United States,

135 S. Ct. 2551 (2015) ............................... passim

Kolbe v. Hogan,

849 F.3d 114 (4th Cir. 2017) ............................. 15

Md. v. Baltimore Radio Show,

338 U.S. 912 (1950) ........................................... 18

New York State Rifle and Pistol

Association v. Cuomo,

804 F.3d 242 (2d Cir. 2015) ............................... 16

People v. Parrilla,

27 N.Y.3d 400 (2016) ................................. 4, 6, 28

People v. Saunders,

85 N.Y.2d 339 (1995) ......................................... 31

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ............................... passim

Smith v. California,

361 U.S. 147 (1959) ........................................... 29

United States v. Balint,

258 U.S. 250 (1922) ..................................... 29, 31

United States v. Bramer,

832 F.3d 908 (8th Cir. 2016) ..................... passim

United States v. Cook,

914 F.3d 545 (7th Cir. 2019) ............................. 19

United States v. Hosford,

843 F.3d 161 (4th Cir. 2016) ............................. 20

United States v. Int’l Minerals &

Chem. Corp.,

402 U.S. 558 (1971) ........................................... 30

United States v. Lechner,

806 F.3d 869 (6th Cir. 2015) ............................. 20

United States v. Mendoza,

464 U.S. 154 (1984) ........................................... 18

United States v. Salerno,

481 U.S. 739 (1987) ....................................passim

United States v. Simms,

914 F.3d 229 (4th Cir. 2019) ............................. 15

United States v. Westbrooks,

858 F.3d 317 (5th Cir. 2017),

judgment vacated on other grounds,

138 S. Ct. 1323 (2018) ....................................... 20

STATUTES

N.Y. Penal Law § 265.00(5) ................................. 1, 3

N.Y. Penal Law § 265.02(1) ................................... 27

INTRODUCTION

Petitioners ask the Court to decide an abstract

question of law that has not been meaningfully

addressed by the lower courts, was not properly

presented below, and would not affect the outcome

of the case. The Court should deny the petition.

New York prohibits possession of any folding

knife that can be opened and locked in place “by the

force of gravity or the application of centrifugal

force.” N.Y. Penal Law § 265.00(5); id. § 265.01(1).

By longstanding judicial interpretation and lawenforcement practice, this gravity-knife statute

prohibits possession of knives that can be opened

and locked with a flick of the wrist. The Police

Department of the City of New York (NYPD) and

the New York County District Attorney’s Office

(DA) use the so-called wrist-flick test to identify

unlawful gravity knives.

The individual petitioners were arrested and

prosecuted for possessing knives that opened in

this way on the first try by police officers of

ordinary skill and strength. The commercial

petitioner was cited for stocking knives that readily

opened with a flick of the wrist. Petitioners sued

the City of New York and New York County

District Attorney Cyrus Vance, Jr., alleging that

the statute is void for vagueness as to a broad class

of commercially available folding knives. They

argued primarily that the wrist-flick test fails to

provide constitutionally adequate notice

allegedly producing indeterminate results.

After a bench trial, the district court rejected

petitioners’ challenge. The court of appeals

affirmed, construing the challenge as facial and

holding that petitioners had failed to demonstrate,

under the standard in United States v. Salerno, 481

U.S. 739 (1987), that there is no set of

circumstances in which the gravity-knife statute

can be validly applied to the class of folding knives

at issue.

The court of appeals’ judgment does not warrant

further review in this Court. Petitioners purport to

identify a conflict among the circuits as to whether

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

displaces the Salerno standard for all facial

vagueness challenges or, instead, just for

challenges to statutes sharing particular key

features with the statute struck down in Johnson.

No court of appeals, however, has yet considered in

depth the application of Johnson to more typical

criminal statutes. And petitioners identify no case

where the outcome has turned on how broadly to

apply the Johnson test. Any difference in the views

expressed in passing by the courts of appeals on

that question does not require the Court’s

intervention now. Rather, the issue should be

allowed to develop further.

This case would not be the right one for the

Court to address this issue in any event.

Petitioners waived any challenge to the application

of the Salerno standard by affirmatively invoking

that standard throughout the litigation, until after

oral argument in the court of appeals. Nor does the

case squarely present the issue proposed by

petitioners, where the district court’s factual

findings would preclude facially invalidation under

either the Johnson or Salerno standard.

The arguments of petitioners’ amici also do not

justify granting review. None of the various

tangential and extra-record issues that they raise is

fairly encompassed within the question presented,

and in any event none would support a facial

challenge to the statute.

STATEMENT

A. The gravity-knife statute

Since 1958, the State of New York has

prohibited the possession of a “gravity knife,” which

is defined as “any knife which has a blade which is

released from the handle or sheath thereof by the

force of gravity or the application of centrifugal

force which, when released, is locked in place by

means of a button, spring, lever or other device.”

N.Y. Penal Law § 265.00(5); see id. § 265.01(1). The

definition of a gravity knife under the statute is a

functional one—a knife must open by means of

gravity or centrifugal force and lock in place. To

determine whether a particular knife meets that

statutory definition, New York City police officers

employ the “wrist-flick test” (Appendix (A) 5). This

test relies on the force of a one-handed flick of the

wrist to determine whether a knife will open from a

closed position and lock (A5, 55, 76).

Police officers are trained in the wrist-flick test,

which has been used by the NYPD to identify

gravity knives since the statute’s effective date

(A55). Arrests and prosecutions for possession of a

gravity knife occur only when a knife has opened in

response to the wrist-flick test (A6). Conviction

under the statute requires knowledge of possession

of a knife, but not knowledge that the knife meets

the statutory definition of a gravity knife. People v.

Parrilla, 27 N.Y.3d 400, 404 (2016).

The statute’s late-1950’s enactment came in

response to evidence that the existing ban on

switchblades was ineffective (Second Circuit Joint

Appendix (JA) 330, 863, 881). Legislators realized

that there were knives that could be concealed and

deployed almost as readily as switchblades, but

that were not covered by the switchblade statute

because they were not spring-loaded (JA330). The

NYPD recommended criminalizing gravity knives,

which it argued were “as much a hazard to the

safety of the general public as the switchblade

knife,” and which, following the enactment of the

switchblade statute, had been “used increasingly as

weapons in the perpetration of such crimes as

homicides, assault, rape, and robbery” (JA875).

At the time of enactment, lawmakers

understood that the gravity-knife statute was

intended to cover knives that opened and locked

with the flick of the wrist. In fact, during a 1957

meeting of the Committee to Ban Teen-age

Weapons, which proposed the gravity-knife ban,

the committee chairman opened a knife with a flick

of his wrist (instead of using gravity) in order to

demonstrate the dangerous nature of the weapon

(JA330).

New York City law enforcement continues to

view the gravity-knife statute as an important

public safety tool because a substantial number of

homicides, non-fatal stabbings, sexual assaults,

robberies, burglaries and other violent crimes are

committed using knives (JA102, 853). For example,

in 2009, approximately 30 percent of all homicides

in Manhattan involved knives (JA102).

B. The petitioners’ lawsuit

Petitioners were each charged in 2010 with a

misdemeanor violation of the statute for possessing

folding knives that, when subjected to the wristflick test, functioned as gravity knives (A6–7; JA

748–49, 897, 903). Petitioners John Copeland and

Pedro Perez were approached by police in public

after the officers observed a knife clipped to their

pockets. The officers who arrested Copeland and

Perez caused their knives to open and lock on the

first attempt of the wrist-flick test (A6–7). Both

petitioners

accepted

adjournment

contemplation of dismissal (i.e., a six-month

adjournment of the case ultimately leading to

dismissal if the defendant successfully complies

with the terms of the agreement), and Perez agreed

to perform seven days of community service (JA44,

46).

Native Leather, Ltd., a retail store, was charged

after DA investigators discovered that some of the

folding knives available for purchase at the store

opened with a flick of the wrist (A7). Caroline

Walsh, the owner of Native Leather, signed a

deferred prosecution agreement with the DA (id.).

In 2012, Petitioners filed suit against District

Attorney Vance and the City claiming that New

York’s ban on gravity knives is void for vagueness

under the Due Process Clause of the Fourteenth

Amendment as applied to what petitioners called

“common folding knives”—a category of knives that

is not recognized in New York case law or the

statute (A7–8). According to petitioners, the New

York Legislature intended the gravity-knife statute

to apply only to what petitioners called “true”

gravity knives, which can be opened by the force of

gravity alone as well as by a flick of the wrist (A8,

51–52). Petitioners claimed that the statute had

historically not been applied to common folding

knives that are designed to resist opening from

their folded and closed position (A51–52, 76).

Petitioners chiefly argued that the gravity-knife

statute cannot lawfully be applied to common

folding knives because the wrist-flick test is so

indeterminate that ordinary people cannot reliably

distinguish lawful from prohibited knives (JA36–

38).

C. The bench trial and the district court’s

ruling

Following a bench trial, the district court issued

findings of fact and conclusions of law rejecting

petitioners’ vagueness claim, and entered judgment

for the defendants. The court evaluated petitioners’

challenge as both facial and as-applied, and held

that it failed under either framing.

The district court concluded that petitioners had

adequate notice that their own knives were

unlawful (A72). The court rejected their contention

that the DA and NYPD had adopted the wrist-flick

test only shortly before their arrests. The court

explained that a long line of New York cases

endorsed the use of the wrist-flick test to identify

knives that open through the application of

centrifugal force (id.). Accordingly, “[b]oth the

statutory text and these judicial decisions provided

plaintiffs with the requisite notice that their

conduct was prohibited” (id.). Moreover, the court

determined that there was no evidence that the

petitioners had tried, close to the time of their

arrests, to open their knives by application of the

wrist-flick test. Nor was there evidence that the

officers who arrested Copeland and Perez, as well

as the investigators who tested the Native Leather

knives, possessed any special strength, skill, or

dexterity (A74).

The district court further found that petitioners

had failed to establish a basis for prospective relief.

To show that they faced the possibility of violating

the statute again in the future, petitioners posited

various hypothetical scenarios in which the

outcome of the wrist-flick test might vary from

person to person (A72–73). These hypotheticals

were unavailing because none of the petitioners

had demonstrated that the hypotheticals were

likely to occur to them or anyone else in the future

(A56, 78). Indeed, the court found that the evidence

in the record established that the wrist-flick test

was applied consistently and that there was “no

evidence” that the manner of conducting the test

differed from officer to officer, or that application of

the test by two different officers had yielded

different outcomes (A55–56). The court concluded

that “the evidence supports a known, consistent

functional test for determining whether a knife fits

the definition of a ‘gravity knife’ and does not

support inconsistent outcomes under that test”

(A56–57).

Given the broad nature of the relief requested,

the district court also considered whether

petitioners had mounted a valid facial challenge

(A69–70). The court concluded that because the

gravity-knife statute “was, and will continue to be,

constitutionally applied to plaintiffs,” it was not

unconstitutional in all of its applications, and

therefore not facially invalid under the test of

United States v. Salerno, 481 U.S. 739 (1987) (A70).

The court also considered petitioners’ facial

challenge under a different standard—articulated

by the plurality opinion in City of Chicago v.

Morales, 527 U.S. 41 (1999) (plurality op.)—and

rejected petitioners’ facial challenge because the

statute was not “permeated with vagueness” (A70

n.24 (quotation marks omitted)).

D. The court of appeals’ affirmance

The court of appeals affirmed the district court’s

judgment in a unanimous decision (A3–4). Turning

first to the issue of whether petitioners challenge

should be understood as facial or as-applied, the

court determined that the nature of the relief that

petitioners were seeking and their method of proof

showed that their challenge was facial in nature

(A14–17).

The court explained that a proper prospective

as-applied challenge seeks to prove that a statute

cannot constitutionally be applied to a specific

course of conduct that the challenger intends to

follow (A14–15). Petitioners, however, sought “not a

declaration that the statute cannot be applied to

certain knives they wish to personally carry, but a

declaration that the statute cannot constitutionally

be applied to anyone carrying any knife in the very

large ‘common folding knife’ category” (A15). The

court held that the evidence in the record showed,

contrary to petitioners assertions, that for decades

respondents had enforced the gravity-knife statute

against what petitioners called “common folding

knives”; thus, as petitioners were forced to

conceded at oral argument, their challenge, if

successful, would “disable the entire statute” (A15–

16). Moreover, petitioners did not “tailor the proof

to the specific conduct that [they] would pursue but

for fear of future enforcement” (A16), but instead

offered hypotheticals—a type of proof that is

inappropriate for an as-applied challenge (A16–17).

The court of appeals also rejected plaintiffs’

contention that they need not show the

unconstitutionality of the statute’s application to

them when they were arrested and charged in

2010. The court explained that when an enactment

had been previously applied to a party challenging

the statute on its face, a court must first evaluate

the claim as applied to the challenger’s own

conduct (A17–18). Thus, petitioners could not

prevail on a facial challenge without showing that

the statute failed to provide them with

constitutionally adequate notice that the conduct

leading to their 2010 arrests was unlawful (id.).

Of particular relevance here, the court of

appeals noted that petitioners had “conceded” in

the district court that the Salerno rule applied to

“an ordinary facial vagueness claim” (A17).

Although the petitioners attempted to walk back

this concession in a letter submitted after oral

argument, the court of appeals was not persuaded.

Relying on Dimaya, which had recently been

decided, petitioners asserted that a statute “must

be clear in all its applications” to survive a

vagueness challenge. 2d Cir. ECF No. 123 at 1. The

court rejected this reasoning, explaining that it

“gets the rule backward” because, “[u]nder a long

line of decisions that Dimaya did not disturb, a

statute will generally survive a facial challenge so

long as it is not invalid in all its applications” (A18

n.3).

Nevertheless, the court of appeals noted that

the Salerno rule no longer had universal

application as a result of this Court’s Johnson and

Dimaya rulings (A11 n.2). The court explained that

in “exceptional circumstances” where a criminal

statute “require[s] courts to imagine an ordinary

version of a crime and assess whether such

idealized conduct implied some degree of risk,” the

statute “may be struck down as facially vague even

where it has some valid applications” (id.). Because

these “exceptional circumstances” were not present

in this case, the court of appeals concluded that

petitioners could “prevail on their vagueness claim

only if they show that the statute was vague as

applied to them in the 2010 enforcement actions”

(A18).

On the merits, the court of appeals held that

petitioners had failed to mount a successful facial

challenge because the enforcement action against

at least one of the plaintiffs, Native Leather, was

constitutional. Based on the record, the court of

appeals concluded that Native Leather had not

shown that it lacked sufficient notice or the

opportunity to understand that it sold illegal

gravity knives (A28). Indeed, the court of appeals

found that “Native Leather offered no evidence that

any of its seized knives responded inconsistently to

the wrist-flick test, much less that all of them did”

(id.).

Even looking beyond the facts of Native

Leather’s own case, the court of appeals concluded,

petitioners failed to show that the gravity-knife

statute could not be validly applied in a substantial

number of cases. The court noted that petitioners

“acknowledge, for example, that some common

folding knives may have a ‘very light bias toward

closure,’ with a blade that fits only ‘loose[ly]’ in the

handle” (A34). Such knives would readily open on

any application of the wrist-flick test. Yet

petitioners made “no effort to explain why an

ordinary person would lack notice that such a knife

was proscribed by the gravity knife law” (id.).

REASONS FOR DENYING THE PETITION

Certiorari should be denied for three main

reasons. First, the supposed circuit split identified

by petitioners is not yet ready for review. No court

of appeals has engaged in depth with the question

of whether Johnson abrogated the Salerno rule for

all void-for-vagueness challenges, or just for

challenges to statutes similar in kind to the ones

considered in Johnson and Dimaya. Nor have there

yet been any cases where this question was critical

to the outcome. Second, this case is a poor vehicle

for addressing the question presented because

petitioners failed to preserve the question, and they

also failed to create a factual record that would

allow them to succeed even under the standard for

which they now advocate. Third, the concerns

voiced by the petitioners’ amici are far afield from

the question presented and provide no ground for

granting the petition.

A. The superficial conflict between the

circuits does not require this Court’s

intervention.

Petitioners argue that there is a “deep and

intolerable” conflict between the Second Circuit’s

briefly stated view of Johnson v. United States, 135

S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.

Ct. 1204 (2018), and the view of Fourth and Eighth

Circuits that those decisions state a new standard

for facial vagueness challenges generally (Pet. 34).

But this supposed circuit split amounts to a few

disparate statements that have yet to produce

divergent outcomes as to similar statutes. This

supposed split does not warrant this Court’s

intervention.

The statutes at issue in Johnson and Dimaya

were plagued by “hopeless indeterminacy.”

Johnson, 135 S. Ct. at 2558. The statute in

Johnson, the residual clause of the Armed Career

Criminal Act of 1984 (ACCA), required a court

evaluating whether to impose a sentencing

enhancement for a prior offense to “imagine” an

“idealized ordinary case of the [defendant’s] crime.”

Id. at 2557–58. Application of the clause involved

two levels of indeterminacy—“about how to

measure the risk posed by a crime” and “about how

much risk it takes for the crime to qualify as a

violent felony.” Id. at 2558. After four previous

cases in which it struggled to apply this analysis,

the Court concluded in Johnson that “[t]he

indeterminacy of the wide-ranging inquiry required

by the residual clause both denies fair notice to

defendants and invites arbitrary enforcement by

judges.” Id. at 2557.

In reaching this conclusion, the Court reasoned

that the possibility of a valid application of the law

was insufficient to redeem the residual clause. Id.

at 2561. The Court explained that “our holdings

squarely contradict the theory that a vague

provision is constitutional merely because there is

some conduct that clearly falls within the

provision’s grasp.” Id. Three years later, in Dimaya,

the Court considered a very similar residual clause,

this time found in the Immigration and Nationality

Act, and in a “straightforward application” of

Johnson held that this residual clause was also

unconstitutionally vague. Dimaya, 138 S. Ct. at

1213.

The federal courts of appeals have applied the

Johnson standard in challenges to statutes that,

the

ACCA

residual

clause,

require

consideration of idealized versions of crimes. See,

e.g., United States v. Simms, 914 F.3d 229, 232 (4th

Cir. 2019). Several courts of appeals, including the

court below, have suggested that Johnson applies

only to such statutes. Several other courts of

appeals have expressed the view that Johnson

displaces the general rule—articulated in United

States v. Salerno, 481 U.S. 739 (1987), and other

decisions—that a statute is facially invalid only if it

has no valid applications. These different views

have not produced divergent results. With the

exception of criminal statutes that require

consideration of idealized version of offenses, we

are not aware of a single court of appeals decision

that has struck down a law on the basis of Johnson

that would have been upheld under prior law. 1

Some courts, including the Fourth and Eighth

Circuits,

have assumed,

without in-depth

discussion, that Johnson and Dimaya broadly

repudiated the Salerno rule. These courts have

stated that, no matter the nature of the statute,

challengers are no longer required to show that a

law is invalid in all of its applications to establish

the law’s facial invalidity. See Kolbe v. Hogan, 849

1 In a decision not cited by petitioners, the Fourth Circuit has

characterized Johnson as an application of the existing rule

that a statute is invalid if it “specif[ies] ‘no standard of

conduct’” and lacks a “‘comprehensible normative standard.’”

Doe v. Cooper, 842 F.3d 833, 842 (4th Cir. 2016) (quoting

Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)).

F.3d 114, 148 n.19 (4th Cir. 2017); United States v.

Bramer, 832 F.3d 908, 909 (8th Cir. 2016).

Nonetheless, in those cases the courts upheld the

statutes in question against facial vagueness

challenges.

In a footnote in the decision below, the Second

Circuit took a different view of Johnson and

Dimaya. The court stated that the decisions

endorse a special standard of facial invalidity

applicable in the “exceptional circumstances”

presented by statutes like the ones at issue in those

cases (A11 n.2). Outside of those circumstances, the

court stated, the decisions did not displace the

Salerno rule. 2

The D.C. Circuit has, like the Second Circuit,

read Johnson and Dimaya more narrowly, applying

the Salerno rule—again, with minimal discussion—

2 Petitioners fault the Second Circuit for failing to address

Johnson in New York State Rifle and Pistol Association v.

Cuomo, 804 F.3d 242 (2d Cir. 2015), a case that they

mistakenly suggest was decided in 2018 (Pet. 33). However,

there is no indication that the parties in that case argued that

the court should apply Johnson—which was decided after oral

argument in the case—to the vagueness challenge there. And

in Expressions Hair Design v. Schneiderman, the Second

Circuit acknowledged that Johnson weakened the universal

application of the Salerno rule, but, given the clear validity of

the statute in question, did not have occasion to decide the

full implications of Johnson. See 808 F.3d 118, 143 n.17 (2d

Cir. 2015), reversed on other grounds, 137 S. Ct. 1144 (2017).

to a more garden-variety criminal statute. See

Crooks v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2016)

(regulation authorizing revocation of instructor

certification based on the “best interests” of the

Navy Junior ROTC program). In a citation

parenthetical, the court distinguished Johnson as

involving a statute that called for consideration of

“an idealized ordinary case of the crime” rather

than “real-world facts or statutory elements.” Id.

This distinction finds support in Johnson itself,

which recognized the difference between the kind of

hopelessly indeterminate statute at issue there and

a vagueness challenge involving the application of a

statute to real-world conduct. Johnson, 135 S. Ct at

2561; see also Johnson, 135 S. Ct. at 2580 n.2

(Alito, J., dissenting) (positing “that the Court does

not mean to abrogate the no-set-of-circumstances

rule in its entirety”). But the merit of this reading

has not yet been fully addressed in the lower

courts. In the four years since Johnson was handed

down, no court of appeals has examined its impact

on the Salerno rule in any depth, and a number of

circuits have found no occasion to address the

issue. No court of appeals has grappled with

another circuit’s reading of the case. And no court

of appeals has found that the choice of a broad or

narrow reading of Johnson affected the outcome of

a vagueness challenge to a more typical criminal

statute.

The Court has long noted that “[i]t may be

desirable to have different aspects of an issue

further illuminated by the lower courts. Wise

adjudication has its own time for ripening.” Md. v.

Baltimore Radio Show, 338 U.S. 912, 918 (1950);

see also United States v. Mendoza, 464 U.S. 154,

160 (1984) (noting the Court’s beneficial practice of

“permitting several courts of appeals to explore” an

issue and “waiting for a conflict to develop” before

granting review). This case is a prototypical

instance where it would be beneficial to allow the

question presented to further percolate before this

Court wades in.

B. This case would be a poor vehicle for

resolving the question presented because

it is unpreserved and academic here.

Even if this apparent split were worthy of

review now, this case would be a poor vehicle for

examining the issue. Petitioners waived their

challenge by invoking the Salerno standard in the

district court and up through and including oral

argument in the court of appeals. In any event, this

case does not properly present the issue because

petitioners’ vagueness challenge would fail under

either view of the law, given the district court’s

undisturbed factual findings.

1. Petitioners failure to preserve their

challenge below presents a barrier to this Court’s

review. See Delta Air Lines v. August, 450 U.S. 346,

362 (1981) (question presented in the petition but

“not raised in the Court of Appeals is not properly

before us”). As the court of appeals recognized,

petitioners conceded in the district court that

Salerno supplied the appropriate standard to

evaluate their claims (A17). The district court then

used the Salerno rule to conclude that their facial

challenge could not succeed (A70), and on appeal,

petitioners did not dispute that aspect of the

district court’s legal analysis or otherwise invoke

Johnson in their briefing (2d Cir. ECF Nos. 28, 91).

Petitioners first raised Johnson and Dimaya

only after oral argument. And when they did, in a

post-hearing letter, they misstated the rule of

Dimaya, arguing that a statute “must be clear in

all its applications” to survive a vagueness

challenge (2d Cir. ECF No. 123 at 1). Petitioners’

delays and misstatements ensured that the Second

Circuit did not get a proper opportunity to consider

the question presented in the petition.

2. This case also does not properly present the

issue proposed by petitioners because the gravityknife statute was constitutionally enforced against

petitioners’ own conduct. There is general

agreement among the circuits that Johnson and

Dimaya left undisturbed “the general rule that a

defendant whose conduct is clearly prohibited by a

statute cannot be the one to make a facial

vagueness challenge.” United States v. Cook, 914

F.3d 545, 554 (7th Cir. 2019); see Holder v.

Humanitarian Law Project, 561 U.S. 1, 19 (2010)

(“‘[A] plaintiff who engages in some conduct that is

clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of

others.’” (quoting Hoffman Estates v. Flipside,

Hoffman Estates, 455 U.S. 489, 494–95 (1982))).

After Johnson and Dimaya, the courts of appeals

thus have continued to reject facial vagueness

challenges when the statute at issue was

constitutionally applied to the challenger. See, e.g.,

United States v. Westbrooks, 858 F.3d 317, 325 (5th

Cir. 2017) (collecting cases and applying this

principle), judgment vacated on other grounds, 138

S. Ct. 1323 (2018); United States v. Hosford, 843

F.3d 161, 170 (4th Cir. 2016) (“[I]f a law clearly

prohibits a defendant’s conduct, the defendant

cannot challenge, and a court cannot examine,

whether the law may be vague for other

hypothetical defendants.”); United States v.

Lechner, 806 F.3d 869, 875 (6th Cir. 2015) (“[A]

void-for-vagueness

challenge

requires

the

defendant to prove the statute was misleading as

applied to his particular case.” (quotation marks

omitted)); but see Henry v. Spearman, 899 F.3d 703,

709 (9th Cir. 2018) (suggesting that Holder and

Hoffman Estates “may not reflect the current state

of the law” on this point).

The outcome in the Eighth Circuit’s decision in

Bramer, one of the two cases highlighted by

petitioners, turned on this principle. The defendant

there raised a facial vagueness challenge to a

federal statute that prohibited an “unlawful user”

of a controlled substance from possessing a firearm.

The Eighth Circuit found that Johnson relieved the

defendant of having to prove that the statute was

“vague in all of its applications,” but still found that

the defendant was required “to show that the

statute is vague as applied to his particular

conduct.” Bramer, 832 F.3d at 909–10. Applying

this standard, the Eighth Circuit rejected the

vagueness challenge because the defendant had

admitted in a plea agreement to being an unlawful

user of marijuana while in possession of multiple

firearms. The Eighth Circuit held that there was

“no basis in the record to conclude that the term

‘unlawful user’ of a controlled substance was

unconstitutionally vague as applied to him.” Id. at

910.

As the court of appeals correctly concluded

below, this principle precludes petitioners from

prevailing on their facial challenge (A27–28). The

district court found that “[e]ach of plaintiff

Copeland and Perez’s knives opened on the first

Wrist-Flick test applied. The knives confiscated

from plaintiff Native Leather also opened by

application of the Wrist-Flick test” (A72). Moreover,

the district court found that because “it is clear

from the statutory text that the Wrist-Flick test

involves the use of centrifugal force,” both this text

and numerous judicial decisions interpreting it

“provided plaintiffs with the requisite notice that

their conduct was prohibited” (id.).

3. Even if a court could ignore how the gravityknife statute was applied to petitioners’ own

conduct, petitioners’ facial challenge would be

doomed to fail even under the Johnson standard for

two additional reasons.

First, petitioners’ hypotheticals are unsupported

by the record. Petitioners’ central claim has always

been that the wrist-flick test is inherently variable

and produces inconsistent results based on the

strength, dexterity, and skill of the police officer

administering it (A41). When given the opportunity

at trial to establish this fact, however, petitioners

failed to do so (A55–56).

In its post-trial decision, the district court

explained that the record did not suggest that “the

manner of conducting the Wrist-Flick test is, in

fact, different from officer to officer” and that there

was “no evidence” before the court that “two

different police officers—each applying the WristFlick test to a knife (either plaintiffs’ or any other

person’s) on the same occasion—had different

outcomes” (id.). The court further found petitioners’

live knife demonstration unpersuasive, and

declined to credit the testimony of the witness

responsible for it (A47, 55–56). The court ultimately

concluded that “while plaintiffs have described

hypothetical scenarios that are possible, they did

not introduce sufficient evidence for the Court to

find that any of the scenarios are probable as to

plaintiffs or anyone else” (A56).

The court of appeals did not disturb any of these

factual findings, and similarly found that

“defendants have consistently used the wrist-flick

test to identify illegal folding knives” and “the

record as to any variation in the outcome of the

wrist-flick test is sparse” (A21, 28).

Second, petitioners have already conceded that

there is an entire category of “common folding

knives” that clearly fall within the gravity-knife

statute’s prohibition. The court of appeals noted

that petitioners “acknowledge, for example, that

some common folding knives may have a ‘very light

bias toward closure,’ with a blade that fits only

‘loose[ly]’ in the handle” (A34). Such knives would

readily open on any application of the wrist-flick

test. Yet petitioners made “no effort to explain why

an ordinary person would lack notice that such a

knife was proscribed by the gravity knife law” (id.).

Petitioners do not suggest that Johnson would

permit facial invalidation of a statute that can

constitutionally be applied in such a substantial

number of cases.

C. The issues raised by amici are beyond the

scope of the question presented.

Petitioners’ amici champion the importance of

this petition based on issues that are not part of, or

fairly encompassed by, the question presented. In

many cases, these issues were not part of the record

below or were only tangentially considered by the

court of appeals. If the Court were to grant the

petition, the concerns raised by the amici would not

be addressed in the Court’s decision on the merits.

Consequently, these submissions provide no basis

to grant the petition.

1. Amici Constitutional Law Scholars urge the

Court to clarify the distinction between an as-

applied and facial challenge (Constitutional Law

Scholars Br. 12–16). This question is beyond the

scope of the question presented. In fact, the

question presented presumes that this Court must

treat petitioners’ challenge as facial. Otherwise

there would be no occasion to decide whether

Johnson abrogates the Salerno rule for all facial

challenges.

In any event, this case is not the right one for

articulating the differences between as-applied and

facial challenges because the court of appeals, in a

detailed analysis of this question, correctly

determined that petitioners’ claim was decidedly

facial in nature. The court noted that the claim

would, if successful, “disable the entire statute” and

provide relief to parties not before the court (A15–

16). 3 Such a challenge is facial under this Court’s

precedent. See Doe v. Reed, 561 U.S. 186, 194

(2010) (“The claim is ‘facial’ in that it is not limited

to plaintiffs’ particular case, but challenges

application of the law more broadly….”); City of

Chi. v. Morales, 527 U.S. 41, 55 n.22 (1999)

(plurality op.) (“When asserting a facial challenge,

a party seeks to vindicate not only his own rights,

3 Although petitioners conceded that the gravity-knife statute

can be validly applied to “true gravity knives,” the record

demonstrated that the statute was enforced far more

commonly against “common folding knives” (A15). The DA

and the City did not use petitioners’ concession that the

statute can validly be applied to “true gravity knives” to argue

that their claim failed under Salerno (A18 n.4).

but those of others who may also be adversely

impacted by the statute in question.”).

The court of appeals also looked to the method

of proof that petitioners submitted (A14–17). The

court reasoned that a properly formulated

prospective as-applied challenge would rely on

proof of the specific conduct that the challenger

would pursue but for fear of future enforcement.

See, e.g., Expressions Hair Design v. Schneiderman,

137 S. Ct. 1144, 1149 n.1 (2017). Petitioners, in

contrast, offered hypothetical scenarios in which

the gravity-knife statute might fail to provide

adequate notice. This form of argument is

permitted in a facial challenge, but not an asapplied one. See Vill. of Hoffman Estates, 455 U.S.

at 495 (explaining that, in a facial challenge, courts

may examine hypothetical applications of the law

after considering complainant’s conduct).

2. Amicus Legal Aid Society contends that the

wrist-flick test gives the DA and the NYPD

“unfettered discretion” to target groups deemed to

“merit their displeasure” (Legal Aid Br. 12). This

argument, too, is not properly presented by this

case. Indeed, the court of appeals noted that the

petitioners did not argue that the gravity-knife

statute invites arbitrary enforcement (A31). The

petition makes no reference to such potential

concerns.

Amicus’s contentions are also wrong. The court

of appeals held that “[t]he gravity knife law … does

not authorize or even encourage arbitrary and

discriminatory enforcement” (A33 (quotation marks

omitted)). Indeed, the cases that Legal Aid relies on

involve quite different statutes, and thus highlight

the weakness of their argument. In Morales, this

Court invalidated a loitering law where the guilt of

the offender hinged on an officer’s “inherently

subjective” determination of whether an individual

was stationary with “no apparent purpose.”

Morales, 527 U.S. at 60–62. And in Giaccio, this

Court held as void for vagueness an act that

authorized juries to assess costs against acquitted

defendants with a threat of imprisonment until the

costs were paid. Giaccio v. Pa., 382 U.S. 399, 402–

05 (1966). The act contained “no standards”

whatsoever to guide the jury’s determination, nor

did it place “any conditions of any kind” on the

jury’s power. Id. at 403.

In contrast, the gravity-knife statute does not

require such subjective judgments by police officers

or otherwise leave room for the exercise of

discretion in determining which knives are

prohibited. Rather, whether a knife is a gravity

knife is an objective question—a knife either does

or does not open by the flick of the wrist.

The anecdotes offered by Legal Aid regarding

five of its clients who were arrested and convicted

implicate a different provision of the state penal

law, N.Y. Penal Law § 265.02(1), that makes it a

felony for a person with a past criminal conviction

to possess a gravity knife. At most, the anecdotes

raise questions about whether particular sentences

imposed under that separate statute were unduly

harsh. What those anecdotes do not show is that

the wrist-flick test—applied by officers who lack

control over sentencing—leads by its nature to

arbitrary and discriminatory enforcement.

Legal Aid’s contention that the DA and the

NYPD enforce the statute against individuals they

deem “undesirable” (Legal Aid Br. 14) has no basis

in the record. The claim is also undermined by the

DA’s efforts to curb the sale of illegal knives at

nationally recognized retail stores, an effort aimed

at preventing all members of the public from

possessing these knives (JA102–03). Moreover,

there is no indication in amicus’s anecdotes that

the police officers or prosecutors applied the wristflick test in a way that would enable them to

control its outcome or bring within the scope of the

statute a knife that should have been deemed

lawful. Indeed, none of the anecdotes include a

claim that police officers required more than one

attempt of the wrist-flick test to open the subject

knives at the time of the underlying arrests, or that

amicus’s clients were unable to open the knives in

the same manner that the officers did.

Legal Aid incorrectly asserts that if the court of

appeals’ rejection of petitioners’ facial challenge is

left to stand, none of their clients will have recourse

to challenge the gravity-knife statute on vagueness

grounds (Legal Aid Br. 1–2). However, the court of

appeals specifically noted that its decision did not

preclude others from bringing as-applied challenges

(A26). In fact, a plaintiff recently prevailed in the

district court in just such an as-applied challenge—

a ruling that is currently on appeal to the Second

Circuit. Cracco v. Vance, No. 14 Civ. 8235 (PAC),

2019 U.S. Dist. LEXIS 52292, at *30 (S.D.N.Y.

Mar. 27, 2019), appeal noticed, No. 19-1129 (2d Cir.

Apr. 24, 2019).

3. Amici Criminal Law Professors and the Cato

Institute argue that the gravity-knife statute’s lack

of a mens rea requirement regarding whether the

knife possessed qualifies as a gravity knife, see

People v. Parrilla, 27 N.Y.3d 400, 404 (2016)

exacerbates the statute’s purported vagueness

(CLS/Cato Br. 6–10). Amici urge this Court to grant

the petition “to clarify the constitutional outer

limits of combining a vague law with the lack of a

mens rea requirement” (id. 10).

This issue is wholly unrelated to the question

presented by petitioners. The petition asks this

Court to consider whether the Salerno rule is

inapplicable to all facial vagueness challenges. The

Court can answer this question without considering

whether a criminal statute is void for vagueness

because it lacks a mens rea requirement. Indeed,

petitioners do not identify this question as one

requiring this Court’s review. As a result, this

argument provides no additional grounds to grant

the petition.

In any event, the argument lacks merit because

the statute’s omission of a mens rea requirement

regarding whether the knife possessed qualifies as

a gravity knife does not render the statute

unconstitutionally vague. The court of appeals

rejected a similar argument when amici made it

below (A35–38). Regardless of the elements of the

offense, the inquiry remains the same—whether

the statute gives adequate notice to the public and

provides sufficient guidance to those charged with

enforcing it (A36). For the reasons stated above, the

court of appeals correctly concluded that the

gravity-knife statute is not unconstitutionally

vague on its face.

Roaming further afield of the issues raised in

the petition, amici appear to also argue that the

statute’s lack of a mens rea requirement violates

the Due Process Clause independently of the

vagueness claim (CLS/Cato Br. 7–10). This

argument is similarly unavailing. As the court of

appeals noted, this Court has “been at a pains not

to constitutionalize mens rea” (A37). See, e.g.,

Smith v. California, 361 U.S. 147, 150 (1959) (“[I]t

is doubtless competent for the States to create

strict criminal liabilities by defining criminal

offenses without any element of scienter ....”);

United States v. Balint, 258 U.S. 250, 252 (1922)

(“[I]n the prohibition or punishment of particular

acts, the State may in the maintenance of a public

policy provide that he who shall do them shall do

them at his peril and will not be heard to plead in

defense good faith or ignorance.” (quotation marks

omitted)).

The cases that amici relied on do not suggest

otherwise (CLS/Cato Br. 8–9). They all deal with

statutory construction—whether Congress intended

to include a mens rea requirement in the statute—

not whether Congress could have constitutionally

omitted one. For example, in Staples v. United

States, this Court concluded that Congress had

intended to include a mens rea requirement in the

otherwise silent National Firearms Act. 511 U.S.

600, 619 (1994). Notably, the Staples Court

observed that Congress “remains free to amend

[the statute] by explicitly eliminating a mens rea

requirement.” Id. at 615 n.11. This statement

would make no sense if the Court had thought that

the statute would be unconstitutionally vague, or

would otherwise violate the Due Process Clause, in

the absence of a mens rea requirement.

At best, amici’s cases only suggest in dicta that

a “legislature might be unable to create a strict

liability ban on indisputably harmless and

everyday items” (A37). See United States v. Int'l

Minerals & Chem. Corp., 402 U.S. 558, 564 (1971)

(stating that a strict liability ban on “[p]encils,

dental floss, [and] paper clips” “might raise

substantial due process questions”). However, the

court of appeals correctly noted below that

“[a]ssuming arguendo that International Minerals

accurately locates the constitutional line, the

gravity knife law falls comfortably on the safe side

of it. A knife is not a paper clip” (A37).

The New York Legislature determined that

gravity knives posed a significant risk to public

safety despite their potential for innocent use. Its

decision to dispense with a mens rea requirement

was constitutionally permissible and consistent

with the legislative purpose “to prophylactically

intercept the possession and use of weapons” in the

community. People v. Saunders, 85 N.Y.2d 339, 343

(1995); see Balint, 258 U.S. at 254 (explaining that

Congress, in enacting the Anti-Narcotic Act,

“weighed the possible injustice of subjecting an

innocent seller to a penalty against the evil of

exposing innocent purchasers to danger from the

drug, and concluded that the latter was the result

preferably to be avoided”).

***

In sum, no issue raised by petitioners or their

amici warrants this Court’s intervention. The

question presented is underdeveloped in the lower

courts and not yet ready for review. Even if it were

ready for review, petitioners have failed to preserve

the question and its application to this matter

would be purely academic. Petitioners failed to

make a record that would permit holding the

gravity-knife statute invalid under any standard

for a facial challenge that the court of appeals

might have applied.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,