Gravity Knife Ban Challenge May Proceed

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By Patrick Gregory

Sept. 24 — A vagueness challenge to the City of New York's ban on “gravity knives” may proceed after a ruling by the U.S. Court of Appeals for the Second Circuit Sept. 22.

A “gravity knife” is one whose blade can be released by gravity or centrifugal force, the court said.

An artist, art dealer and retail store operator, who all carried ordinary folding knives as part of their work, showed a “credible threat of imminent prosecution” based on past enforcement of the ban against them, the decision by Judge Reena Raggi said.

They therefore established the “injury in fact” needed for standing, the court held. The ruling reversed the district court's dismissal for lack of standing and remanded the case.

But two knife rights organizations lacked standing because they failed to show they would be prosecuted under the law in addition to their members, the court held in partially affirming the district court.

Knife Ban 

The ban, N.Y. Penal Law §§265.00(5), 265.01(1), prohibits knives with blades that can be released by gravity or centrifugal force, the court said.

The plaintiffs argued that the ban is unconstitutionally vague because the city has applied it to “any folding knife,” the court said. For example, in the art dealer's case, the plaintiffs assert that the charging officers were unable themselves to flick open his knife, but based on the possibility that someone could do so, they issued a ticket.

The plaintiffs therefore argued that they are unable to determine which knives might be deemed illegal by the city, the court said.

Imminent Prosecution 

To establish standing, a plaintiff must demonstrate an injury that is “actual or imminent,” the court said, quoting Susan B. Anthony List v. Driehaus, 82 U.S.L.W. 4489, 2014 BL 165391 (U.S. June 16, 2014).

When making pre-enforcement challenges to criminal laws, plaintiffs can show imminent injury with plausible allegations that they intend to engage in constitutionally protected conduct but face a “ ‘credible threat of prosecution,' ” the court said.

In Driehaus, the U.S. Supreme Court found that a “history of past enforcement” could constitute such a threat, the court said.

Here, the store operator “was officially charged, paid fines” and “entered into a deferred prosecution agreement that expressly threatened future charges if its terms were not satisfied,” the court said.

The artist and art dealer were also charged before agreeing to adjournments in contemplation of dismissal, the court said.

Further, the city defendants never disavowed that they would charge the plaintiffs “again in the same circumstances,” the court said.

The plaintiffs therefore demonstrated a credible prosecution threat and weren't required to expose themselves to criminal liability to have standing, the court held.

Chief Judge Robert Allen Katzmann and Senior Judge Amalya L. Kearse joined the opinion.

Greenbaum, Rowe, Smith & Davis LLP argued for the plaintiffs.

The New York County district attorney's office and New York City Law Department represented the city defendants.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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