The Second Circuit smacked it down in Copeland v. Vance, when the attack was the lack of a mens rea requirement for New York’s misbegotten gravity knife law. It didn’t matter that you weren’t a criminal, that your possession had no criminal purpose, that it was, anywhere else, a perfectly lawful knife as any ordinary person would use. No, that wasn’t good enough.
The U.S. Court of Appeals for the Second Circuit acknowledged the law’s absence of a mens rea requirement but held that it makes no difference whether the defendant believed a knife was legal or not, whether he actually attempted a “wrist flick” to open the knife, or even if he received advice from a police officer that the knife was lawful. Ultimately, the court below suggested that challenges to such prosecutions could only be raised on an as-applied basis—meaning that when someone is prosecuted under this law for carrying a Swiss Army or other common folding knife, then he may be able to raise this defense.
The only solution was to buy a knife on Amazon, or at your local hardware store, and find out later whether some cop could, after as many tries as he felt inclined to give it, “flick” into movement, get arrested, spend a night in jail and await the joy of fighting it out.
Maybe you would get out on bail. Maybe not. Maybe you would pay thousands to a lawyer to defend you. Maybe you would get one for free. Maybe you would win on motions, or at trial, months or years later. Or maybe you would cop a plea that got you out immediately, saved you most of the money it would cost for a defense, less the fine that would be imposed, and moved on with your life, maybe as a convicted criminal or maybe until the ACD or Dis Con kicked in.
Joseph Cracco decided not to fold.
At the time of his arrest, Cracco was in possession of a Spyderco Endura 4 folding knife, which he used for his work as a sous chef and in his daily life. Cracco had owned the knife for several years and used it open boxes, to open bottles, and when working on cars or on his motorcycle. He never attempted to open the knife by application of the wrist flick test.
As he walked through Grand Central Station, an eagle-eyed cop in need of making his numbers spied the tell-tale tab in his pocket of a knife and knew he had an easy bust. After four to five increasingly violent flicks, Officer Jonathan Correa saved New York City from a sous chef, lest he cook again.
Former New York Corporation Counsel Paul Crotty, now sitting in Harold Baer’s old bench, decided this was the case to put an end to the gravity knife travesty.
In Copeland, the Second Circuit found against the plaintiffs after applying the facial
vagueness standard to the gravity knife statute. Copeland, 893 F.3d 101. The Court, however, left open the possibility that a true prospective, as-applied vagueness challenge to the gravity knife statute could succeed. This is that case.
The points made here, just as they were in Copeland, was that the law failed to define “gravity knife” in such a way as to distinguish it from any folding knife that any ordinary, law-abiding person might use and carry. No one would know if they were breaking the law. No one would be able to figure it out.
The crux of Cracco’s vagueness argument is that he has no reliable way of knowing whether the common folding knife he wishes to possess will be viewed as legal or illegal given the text of the gravity knife statute and the procedures used by the District Attorney to enforce the statute. Cracco’s position is supported by the record. The District Attorney’s argument seems to be that the statute itself and some cases in state and federal court in New York put Cracco on notice that his possession of any folding knife that might at some point respond to the wrist flick test risks criminal prosecution. But it is not the District Attorney’s position that any folding knife is a gravity knife. Rather, a knife must open upon application of the wrist flick test to warrant prosecution, even though there is no specific number of attempts of the wrist flick test that is too many. Under this enforcement regime, Cracco has no way of knowing that his past conduct was, or that his intended future conduct will be, criminal under the gravity knife statute.
All this effort is required because the statute criminalizes an object rather than conduct. A person inclined to commit mayhem can do so with a butcher’s knife as well as a switchblade. The argument against a switchblade is that no non-criminal needs a knife that springs to action. And gravity knives were somewhere in the middle, even if they were hard to put into words.
Third, the gravity knife statute’s purpose-to prohibit the possession of dangerous weapons used to perpetrate crimes, supports the conclusion that the statute is vague. The statute was not intended to criminalize the possession of the type of ordinary folding knife that Cracco possessed, which are commonly used by cooks, craftsmen, and laborers to perform their job functions; it was intended to criminalize knives used by criminals in New York City.
What’s curious about Judge Crotty’s effort to express the obvious, that it’s just an ordinary folding knife like any regular person might carry, is the acknowledgement of the absurd framing of the knife law in the first place. Is a knife a “dangerous weapon used to perpetrate crimes”? It can be. Or it can be the way you open a box or slice your steak. It’s a knife, for crying out loud.
Cracco seeks to carry an ordinary folding knife offered for sale at stores in New
York that does not open on the first or second attempt of the wrist flick test-not one used to advance criminal purposes.
The knife doesn’t “advance criminal purposes.” The criminal using the knife does. How many tens of thousands of New Yorkers, working people with no hint of criminal intent, were swept into the system (in part because of Gov. Andy Cuomo’s two vetoes of laws to end this travesty) on a flick of the wrist?
The combination here, however, of a statute that does not specify how Cracco can identify a gravity knife and a practice of prosecuting possession of gravity knives in an unclear and inconsistent manner provides police and prosecutors “virtually unlimited” or “unfettered” discretion to enforce the gravity knife statute. See Smith, 985 F. Supp. 2d at 589. Under such circumstances, and within the lens of Cracco’s past prosecution and intended future conduct, the gravity knife statute is unconstitutionally vague.
Will the Second Circuit affirm Judge Crotty’s holding that this law, at least as applied, is unconstitutionally vague? There are a lot of cops who need to make their quotas on the backs of completely not-criminal folks who use knives waiting to find out if they’re still loved as much by the court as they are by Gov. Andy Cuomo.