UNITED STATES COURT OF APPEALS FOR THE SECOND …online.wsj.com/public/resources/documents/2015_0922_knife.pdfDec 16, 2011 · will not be able to do so). Plaintiffs Copeland and

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CIVIL APPEAL PRE-ARGUMENT STATEMENT (FORM C)

1. SEE NOTICE ON REVERSE. 2. PLEASE TYPE OR PRINT. 3. STAPLE ALL ADDITIONAL PAGES

Case Caption: District Court or Agency: Judge:

Date the Order or Judgment Appealed

from was Entered on the Docket:

District Court Docket No.:

Date the Notice of Appeal was Filed: Is this a Cross Appeal?

� Yes � No

Attorney(s) for

Appellant(s):

� Plaintiff

� Defendant

Counsel’s Name: Address: Telephone No.: Fax No.: E-mail:

Attorney(s) for

Appellee(s):

� Plaintiff

� Defendant

Counsel’s Name: Address: Telephone No.: Fax No.: E-mail:

Has Transcript

Been Prepared?

Approx. Number of

Transcript

Pages:

Number of

Exhibits

Appended to

Transcript:

Has this matter been before this Circuit previously? � Yes � No

If Yes, provide the following:

Case Name:

2d Cir. Docket No.: Reporter Citation: (i.e., F.3d or Fed. App.)

ADDENDUM “A”: COUNSEL MUST ATTACH TO THIS FORM: (1) A BRIEF, BUT NOT PERFUNCTORY, DESCRIPTION OF THE

NATURE OF THE ACTION; (2) THE RESULT BELOW; (3) A COPY OF THE NOTICE OF APPEAL AND A CURRENT COPY OF

THE LOWER COURT DOCKET SHEET; AND (4) A COPY OF ALL RELEVANT OPINIONS/ORDERS FORMING THE BASIS FOR

THIS APPEAL, INCLUDING TRANSCRIPTS OF ORDERS ISSUED FROM THE BENCH OR IN CHAMBERS.

ADDENDUM “B”: COUNSEL MUST ATTACH TO THIS FORM A LIST OF THE ISSUES PROPOSED TO BE RAISED ON APPEAL,

AS WELL AS THE APPLICABLE APPELLATE STANDARD OF REVIEW FOR EACH PROPOSED ISSUE.

PART A: JURISDICTION

1. Federal Jurisdiction

� U.S. a party � Diversity

� Federal question � Other (specify):

(U.S. not a party)

2. Appellate Jurisdiction

� Final Decision � Order Certified by District Judge (i.e.,

Fed. R. Civ. P. 54(b))

� Interlocutory Decision

Appealable As of Right � Other (specify):

IMPORTANT. COMPLETE AND SIGN REVERSE SIDE OF THIS FORM.

KNIFE RIGHTS, INC.; JOHN COPELAND;PEDRO PEREZ; KNIFE RIGHTSFOUNDATION, INC.; andNATIVE LEATHER, LTD., Plaintiffs,v.CYRUS VANCE, JR., in his Official Capacityas the New York County District Attorney;and CITY OF NEW YORK, Defendants.

Southern District of New York Katherine B. Forrest

November 20, 2013 11 Civ. 3918

December 18, 2013 ✔

✔

David D. Jensen David Jensen PLLC (212) 380-6615 (917) 591-1318 [email protected] John Street,

Suite 420New York, NY 10038

✔

✔

Patricia Bailey New York County District Attorney (212) 335-9000 (212) 335-4390 [email protected] Dowdell 1 Hogan Place [email protected]

New York, NY 10013

Louise Lippin New York City Corporation Counsel (212) 788-0790 (212) 791-9714 [email protected] Church StreetNew York, NY 10007

NoN.A.

✔

N.A.

✔

Case 13-4840, Document 10-1, 01/08/2014, 1128467, Page1 of 2

PART B: DISTRICT COURT DISPOSITION (Check as many as apply)

1. Stage of Proceedings

� Pre-trial

� During trial

� After trial

2. Type of Judgment/Order Appealed

� Default judgment � Dismissal/other jurisdiction

� Dismissal/FRCP 12(b)(1) � Dismissal/merit

lack of subj. matter juris. � Judgment / Decision of the Court

� Dismissal/FRCP 12(b)(6) � Summary judgment

failure to state a claim � Declaratory judgment

� Dismissal/28 U.S.C. § 1915(e)(2) � Jury verdict

frivolous complaint � Judgment NOV

� Dismissal/28 U.S.C. § 1915(e)(2) � Directed verdict

other dismissal � Other (specify):

3. Relief

� Damages: � Injunctions:

Sought: $ � Preliminary

Granted: $ � Permanent

Denied: $ � Denied

PART C: NATURE OF SUIT (Check as many as apply)

1. Federal Statutes

� Antitrust � Communications � Freedom of Information Act

� Bankruptcy � Consumer Protection � Immigration

� Banks/Banking � Copyright � Patent � Labor

� Civil Rights � Trademark � OSHA

� Commerce, � Election � Securities

� Energy � Soc. Security � Tax

� Commodities � Environmental

� Other (specify):

2. Torts

� Admiralty/

Maritime

� Assault /

Defamation

� FELA

� Products Liability

� Other (Specify):

3. Contracts

� Admiralty/

Maritime

� Arbitration

� Commercial

� Employment

� Insurance

� Negotiable

Instruments

� Other Specify

4. Prisoner Petitions

� Civil Rights

Habeas Corpus

� Mandamus

� Parole

� Vacate Sentence

� Other

5. Other

� Forfeiture/Penalty

� Real Property

� Treaty (specify):

� Other (specify):

6. General

� Arbitration

� Attorney Disqualification

� Class Action

� Counsel Fees

� Shareholder Derivative

� Transfer

7. Will appeal raise constitutional issue(s)?

� Yes � No

Will appeal raise a matter of first

impression?

� Yes � No

1. Is any matter relative to this appeal still pending below? � Yes, specify: � No

2. To your knowledge, is there any case presently pending or about to be brought before this Court or another court or administrative agency

which:

(A) Arises from substantially the same case or controversy as this appeal? � Yes � No

(B) Involves an issue that is substantially similar or related to an issue in this appeal? � Yes � No

If yes, state whether � “A,” or � “B,” or � both are applicable, and provide in the spaces below the following information on the other action(s):

Case Name: Docket No. Citation: Court or Agency:

Name of Appellant:

Date: Signature of Counsel of Record:

NOTICE TO COUNSEL

Once you have filed your Notice of Appeal with the District Court or the Tax Court, you have only 14 days in which to complete the following

important steps:

1. Complete this Civil Appeal Pre-Argument Statement (Form C); serve it upon all parties, and file it with the Clerk of the Second Circuit in

accordance with LR 25.1.

2. File the Court of Appeals Transcript Information/Civil Appeal Form (Form D) with the Clerk of the Second Circuit in accordance with LR 25.1.

3. Pay the$455 docketing fee to the United States District Court or the $450 docketing fee to the United States Tax Court unless you are authorized to

prosecute the appeal without payment.

PLEASE NOTE: IF YOU DO NOT COMPLY WITH THESE REQUIREMENTS WITHIN 14 DAYS, YOUR APPEAL WILL BE

DISMISSED. SEE LOCAL RULE 12.1.

✔ ✔

✔

✔

✔

✔

✔

✔

✔

✔

January 7, 2014 s/ David D. Jensen


Addendum A

Description of the Nature of the Action

This 42 U.S.C. § 1983 action challenges Defendants’ expansive interpretation of the New

York State knife law and related enforcement practices. Defendants enforce state knife law

based on nothing more than whim and happenstance, making it impossible for citizens to

determine whether common pocket knives are lawful or have been deemed prohibited “gravity

knives.” Criminal liability for possession of a pocket knife in New York City turns entirely on

chance, because the exact same knife can be deemed a perfectly lawful pocket knife one day and

an illegal gravity knife the next. The exact same pocket knife can be fully lawful in Brooklyn

one week but result in arrest and prosecution in Manhattan the following week. The arbitrary

manner in which Defendants enforce New York State’s gravity knife statute renders it

impossible to ever know whether or not at any given moment one is in possession of a legal

pocket knife.

Defendants interpret the law that prohibits “gravity knives” (N.Y. Penal L. §§ 265.00(5),

265.01(1)) to include not only knives that fall within the customary and traditional definition of

“gravity knife,” but also folding pocket knives – which do not. This expansion of the gravity

knife law is void-for-vagueness in violation of the Due Process Clause of the Fourteenth

Amendment both because it goes beyond the notice provided by the statute, and also because the

“test” used to determine criminal liability – an attempt to open the blade of a folding knife using

a violent, wrist-snapping or “flicking” motion – is inherently subjective and lacks an objective

standard by which a person can measure the legality of his or her conduct. Even if 100 people


are unable to “wrist-snap” a folding knife open, it is always possible that a to-be-encountered

police officer will be able to do so, and will accordingly assert that the pocket knife is a

prohibited gravity knife.

Both Defendants have used the expansive gravity knife interpretation at issue in this case

to assert criminal liability on the part of the Plaintiffs. After Defendant District Attorney Vance

learned that Plaintiff Native Leather, Ltd. was selling folding knives with locking blades,

investigators from his office inspected the knives and asserted that some of them – the particular

ones that investigators were able to open using the “wrist-flicking” or “wrist-snapping” action

described above – were prohibited gravity knives. And, New York City police officers charged

Plaintiffs John Copeland and Pedro Perez with violating the gravity knife law after seeing them

carrying folding knives in their pockets. As a result, these Plaintiffs have changed their

behavior. Native Leather no longer sells any folding knives that its owner is able to open by

“wrist-snapping” (although there is no assurance that a future investigator from the DA’s office

will not be able to do so). Plaintiffs Copeland and Perez no longer carry folding knives because

of the threat that New York City police officers will again stop them, attempt to “wrist-flick” the

folding knives open, and assert that the folding knives are prohibited gravity knives.

The Result Below

Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) & (6)

shortly after Plaintiffs commenced this action in 2011. Plaintiffs thereafter filed a first Amended

Complaint that added Native Leather, Ltd. and Knife Rights Foundation, Inc. as Plaintiffs, and

the District Court then dismissed Defendants’ motions as moot. Defendants then moved to


dismiss the first Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) & (6), on substantially

the same grounds as raised in their prior motions.

The District Court granted Defendants’ motions and dismissed the first Amended

Complaint on September 25, 2013. The District Court concluded that the injury that Plaintiffs

Copeland and Perez asserted was hypothetical and speculative because they alleged that they

wanted to “possess a knife ‘similar’ to the one they possessed at the time of their arrests,” but

neither “allege[d] the make and model of knife that he wants to carry or specifically describe it.”

Decision & Order p. 8; see also id. p. 9 (“The advisory nature of this request is particularly clear

because Plaintiffs fail to describe with specificity the nature of the knives they wish to own or

the injury caused by their inability to do so.”).

Ironically, the Court based its dismissal in part on Plaintiffs’ failure to specify legal

knives they wished to possess, ignoring that the inability to determine what is lawful and not

lawful to possess was at the very heart of their claim.

Similarly, the District Court concluded that Native Leather’s fear that someone else

would be able to “wrist-flick” a knife open, even though it had passed Native Leather’s own

application of the “wrist-flick” test, was “mere conjecture,” as “‘[a] plaintiff must allege

something more than an abstract, subjective fear that his rights are chilled in order to establish a

case or controversy.’” Id. pp. 8-9 (quoting Nat’l Org. Marriage, Inc. v. Walsh, 714 F.3d 682,

689 (2d Cir. 2013)).

On October 7, 2013 Plaintiffs moved for reconsideration to the extent of granting them

leave to file a second amended complaint to address the pleading deficiencies identified by the

District Court. (Plaintiffs had previously requested leave to amend in the event the District Court


found the first Amended Complaint inadequate in their responses to Defendants’ motions, but the

District Court had not addressed the request.) The District Court then requested that Plaintiffs

submit a proposed amended complaint, which Plaintiffs did, after which the District Court

denied Plaintiffs’ motion on November 20, 2013 on the ground that amendment “alters the case

sufficiently to cause prejudice to defendants,” Opinion & Order p. 4., while ignoring the

prejudice the dismissal caused to Plaintiffs.

The Notice of Appeal and Lower Court Docket Sheet are Attached

The Decision and Order (Sept. 25, 2013) and Opinion and Order (Nov. 20, 2013) are Attached


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

KNIFE RIGHTS, INC.; JOHN COPELAND; PEDRO PEREZ; KNIFE RIGHTS FOUNDATION, INC.; and NATIVE LEATHER, LTD.,

Plaintiffs,

-against-

CYRUS VANCE, JR., in his Official Capacity as the New York County District Attorney; and CITY OF NEW YORK,

Defendants.

No. 11 Civ. 3918 (KBF) (RLE) ECF Case NOTICE OF APPEAL

Notice is hereby given that Plaintiffs KNIFE RIGHTS, INC., JOHN COPELAND,

PEDRO PEREZ, KNIFE RIGHTS FOUNDATION, INC., and NATIVE LEATHER, LTD.

hereby appeal to the United States Court of Appeals for the Second Circuit from the Decision

and Order granting Defendants’ motions to dismiss, entered in this action on September 25, 2013

(Doc. No. 80), and from the Opinion and Order denying Plaintiffs’ motion for reconsideration

for leave to amend, entered in this action on November 20, 2013 (Doc. No. 95).

Dated: New York, New York December 18, 2013

DAVID JENSEN PLLC

By: /s/ David D. Jensen David D. Jensen, Esq.

111 John Street, Suite 420 New York, New York 10038 Tel: 212.380.6615 Fax: 917.591.1318 [email protected] Attorney for Plaintiffs

Case 1:11-cv-03918-KBF-RLE Document 98 Filed 12/18/13 Page 1 of 1Case 13-4840, Document 10-2, 01/08/2014, 1128467, Page5 of 39

1/1/14 SONY CMIECF Version 4.2

CLOSED,APPEAL,CASREF,ECF

U.S. District Court Southern District of New York (Foley Square)

CIVIL DOCKET FOR CASE#: 1:11-cv-03918-KBF-RLE

Knifu Rights, Inc. et al v. Vance et al Assigned to: Judge Katherine B. Forrest Referred to: Magistrate Judge Ronald L. Ellis Cause: 42:1983 Civil Rights Act

Plaintiff

Knife Rights, Inc.

Plaintiff

John Copeland

Plaintiff

Pedro Perez

Plaintiff

Native Leather, LTD

Plaintiff

Date Filed: 06/09/2011 Date Terminated: 09/25/2013 Jury Demand: None Nature of Suit: 950 Constitutional- State Statute Jurisdiction: Federal Question

represented by David Douglas Jensen David Jensen PILC 111 John Street Suite 420 New York, NY 10038 (212)-380-6615 Fax: (917)-591-1318 Email: [email protected] ATTORNEY TO BE NOTICED

represented by David Douglas Jensen (See above fur address) ATTORNEY TO BE NOTICED



Knife Rights Foundation, Inc represented by David Douglas Jensen (See above fur address) ATTORNEY TO BE NOTICED

https1/ecf.rl)6d.uscourts.g mlcg i-bi n/Dk1Rpt.pi?124335134878735-L _ 452 _ ().1 1/16



v. Defendant

Cyrus Vance, Jr. in his Official as the New York County District Attorney

Defendant

City of New York

Defendant

Eric Schneiderman in his Qfficial Capacity as Attorney General of the State of New York TERMINATED: 0911412011

https1/ecf.rl)6d.uscourts.gmlcgi-bin/Dk1Rpt.pi?124335134878735-L_ 452_().1

represented by Eva Marie Dowdell New York County District Attorney's Office One Hogan Place New York, NY 10038 (212)-335-4354 Fax: (212)-335-4390 Etmil: [email protected] ATTORNEY TO BE NOTICED

Patricia Jean Bailey New York County District Attorney's Office One Hogan Place New York, NY 10013 (212)-335-4362 Fax: (212)-335-4390 Etmil: [email protected] ATTORNEY TO BE NOTICED

represented by Louise Hari lippin New York City Law Depart. Office of the Corporation Counsel 100 Clrurch Street New York, NY 10007 212-788-0790 Fax: 212-791-9714 Etmil: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Charles Ethan Enloe Friedman Kaplan Seiler & Adehnan LLP 7 Times Square, 28th Floor New York, NY 10036 (212) 833-1100 Fax: (212) 833-1250 Etmil: [email protected] LEAD ATTORNEY

2/16



Date Filed # Docket Text

06/09/2011 1 COMPLAINT against CityofNewYork, Eric Sclmeidennan, Cyrus Vance, Jr. (Filing Fee$ 350.00, Receipt Number 465401008732)DoCl.ll1E11: filed by Knifu Rights, Inc., Jolm CopeJand, Pedro Perez.(rdz) (Entered: 06/10/2011)

06/09/2011 SUMMONS ISSUED as to CityofNewYork, Eric Schneidenmn, Cyrus Vance, Jr. (rdz) (Entered: 06/10/2011)

06/09/2011 Magistrate Judge Ronald L. Ellis is so designated. (rdz) (Entered: 06/10/2011)

06/09/2011 Case Designated ECF. (rdz) (Entered: 06/1 0/2011)

06/09/2011 2 RULE 7.1 CORPORATE DISCWSURE STATEMENT. No Corporate Parent. Doclllmnt filed by Jolm CopeJand, Knifu Rights, Inc., Pedro Perez.(rdz) (Main Doclllmnt 2 replaced on 6/14/2011) (rdz). (Entered: 06/10/2011)

07/25/2011 3. ENDORSED LETTER addressed to Judge Barbara S. Jones from Louise Lippin dated 7/2112011 re: I respectfully request that defendants' (The City ofNew York) tilre to respond to the complaint be extended unti19/12/2011. ENDORSEMENT: Application granted. City ofN ew York answer due 9/12/2011. (Signed by Judge Barbara S. Jones on 7/22/2011) (mbe) (Entered: 07/25/2011)

07/26/2011 ~ NOTICE OF APPEARANCE by Louise Hari Lippin on behalf of City ofNew York (Lippin, Louise) (Entered: 07/26/20 11)

07/29/2011 5. NOTICE OF APPEARANCE by Louise HariLippin on behalfofCityofNewYork (Lippin, Louise) (Entered: 07/29/20 11)

08/01/2011 .6 NOTICE OF APPEARANCE by Patricia Jean Bailey on behalf of Cyrus Vance, Jr (Bailey, Patricia) (Entered: 08/01/2011)

08/01/2011 1 ORDER OF REFERENCE TO A MAGISTRATE JUDGE: Order that case be referred to the Clerk of Court fur assigmnent to a Magistrate Judge fur General Pretrial (includes scheduling, discovery, non-dispositive pretrial 100tions, and settlemmt). Referred to Magistrate Judge Ronald L. Ellis. (Signed by Judge Barbara S. Jones on 8/1/2011) (ab) (Entered: 08/0 1120 11)

08/02/2011 .8. NOTICE OF APPEARANCE by Eva Marie Dowdell on behalf of Cyrus Vance, Jr (Dowdell, Eva) (Entered: 08/02/2011)

08/19/2011 2 PRETRIAL CONFERENCE ORDER: Pretrial Conference set fur 9/22/2011 at 10:00 AM in Courtroom 18D, 500 Pearl Street, New York, NY 10007 befOre Magistrate Judge Ronald L. Ellis. (Signed by Magistrate Judge Rona1d L. Ellis on 8/19/2011) (ft) (Entered: 08/19/20 11)

09/09/2011 .l.Q NOTICE OF APPEARANCE by Charles Ethan Enloe on behalf ofEric Schneiderman (Enloe, Charles) (Entered: 09/09/2011)

09/09/2011 11 FILING ERROR- ELEC'IRONIC FILING FOR NON-ECF DOCUMENT-

https:l/ecf.l1)6d.uscourts.g 0\lcg i-bin/Dk1Rpt.pi?124335134878735-L_ 452_0-1 3116



STIPULATION OF VOLUNTARY DISMISSAL It~ hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action ~ vohmtarily ~missed, without prejudice against the defimdant(s) Eli: Schneiderman pursuant to Rule 41 (a)(1 )(A)(n) of the Federal Rules of Civil Procedure. Docwrent filed by Eric Schneidenmn.(Enloe, Charles) Modified on 9/12/2011 (dt). (Entered: 09/09/2011)

09/12/2011 ***NO'IE TO ATTORNEY TO E-MAIL PDF. Note to AttorneyCbar1es Enloe fur noncompliance with Section 18.4 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF fur Docwrent 11 Stipulation ofVohmta.ry Disimisal, to: judgrrents@nysd. uscourts.gov. (Stipulation does not ~miss entire action). ( dt) (Entered: 09/12/2011)

09/12/2011 12 ENDORSED LETTER addressed to Ma~trate Judge Ronakl L. Enici from Eva Marie Dowdell dated 9/6111 re: I 'Mite to respectfully request a thirty day enlargetrent of titre within which all defendants may answer or otherwise respond to the complaint from September 12, 2011 to October 12,2011. ENOORSEMENT: Initialconfurence adjourned from September 22, 2011, to October 25, 2011, at 10:00 a.m All Defendants answer due 10/12/11. (InitialConfurence set fur 10/25/2011 at 10:00 AM befOre Magistrate Judge Ronak:l L. Elfui.) (Signed by Magisttate Judge Ronald L. Elm on 9/12/11) (Ijm) (Entered: 09/13/2011)

09/14/2011 ll STIPULATION OF VOLUNTARY DISMISSAL AS AGAINST DEFENDANT ERIC SCHNEIDERMAN: This action and all c1airn; asserted therein are vohmtarily ~sed without prejudice as against Defendant Eli: Schneidermm, pursuant to Rule 41 (a)(1) of the Federal Rules of Civil Procedure. This dismissal~ without prejudice to the right of the Attorney General of the State ofN ew York to choose to intervene in~ action at any titre, pursuant to 28 U.S.C. 2403(b) and Rule 24(a)(1 )of the Federal Rules ofCivilProcedure, to defend the constitutionalityofN.Y. Penal Law 265.00(4), 265.01 (1 ), or to de fund the constitutionality of any other state statute the constitutionality of which is drawn into questions. (Signed by Judge Barbara S. Jones on 9/13/2011) (rdz) (Entered: 09/14/20 11)

09/19/2011 14 ENDORSED LETTER: addressed to Ma~trate Judge Ronak:l L. Ellis from Eva Marie Dowdell dated 9/6/2011 re: Counsel fur defundant requests a thirty day enlargetrent of titre within which all defundants may answer or otherwise respond to the compJaint from September 12, 2011 to October 12,2011. ENOORSEMENT: So Ordered., Eric Schneiderman answer due 10/12/2011. (Signed byMagisttate Judge Ronald L. Elm on 9/19/2011) us) (Entered: 09/19/2011)

10/12/2011 15 ANSWER to Complaint Docwrent :filed by City ofN ew Y ork.(Lippin, Lo~e) (Entered: 10/12/2011)

10/12/2011 16 FIRST MOTION to Dismiss Notice of Motion. Docwxmt fiJed by Cyrus Vance, Jr. (Bailey, Patricia) (Entered: 10/12/2011)

10112/2011 11 DECLARATION ofPatricia J. Bailey in Support re: .1.6 FIRST MOTION to Dismiss Notice of Motion .. Docwxmt filed by Cyrus Vance, Jr. (Attac~nts: # 1 Exhibit A, # 2.




Exhibit B, # ~ Exlnbit C)(Bailey, Patricia) (Entered: 10/12/2011)

10/12/2011 18. FIRST MEMORANDUM OF LAW in Support re: .lQ FIRST MOTION to Dismiss Notice of Motion. Pursuant to Fed. R. Civ. P 12(b)(J) & 12(b)(6). Docl.liDmt filed by Cyrus Vance, Jr. (Bailey, Patricia) (Entered: 10/12/2011)

10/25/2011 19 ENDORSED LETTER: addressed to Magistrate Judge Ronald L. EDis from David D. Jensen dated 10/21/2011 re: Accordingly, counsel writes to request that p1aint.iflS current opposition deadline from October 26, 2011 to Novenner 4, 2011. ENDORSEMENT: So Ordered. (Responses due by 11/4/2011) (Signed by Magistrate Judge Ronald L. EDison 10/25/2011) Gs) (Entered: 10/25/2011)

1110112011 Minute Order Proceedings held befOre Magistrate Judge Ronald L. Ellis: Initial Pre1rial Conference hekl on 11/112011. Discovery cutoff set fur 2/15/2012. Conference adjmnned sine die. (cd) (Entered: 11102/2011)

11101/2011 Set/Reset Deadlines: Discovery due by 2/15/2012. (cd) (Entered: 11102/2011)

11104/2011 20 ENDORSED LETTER addressed to Magistrate Judge Ronald L. Ellis fromDavKl D. Jensen dated 11/02/2011 re: Request that the Court allow us one additional week to submit opposition papers, making the new deadline Friday, November 11, 20 11. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Rona1d L. Effii on 11/04/2011) (atm) (Entered: 11104/2011)

11104/2011 Set/Reset Deadlines: Responses due by 1111112011 (ama) (Entered: 11104/2011)

1111112011 22 DECLARATION ofDouglas S. Ritter ofKnifu Rights, Inc. in Oppositionre: 16 FIRST MOTION to Dismiss Notice of Motion .. Document :filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 1111112011)

1111112011 23. DECLARATION of John Stitt ofKa-Bar Knives in Opposition re: .l.Q. FIRST MOTION to Dismiss Notice of Motion .. Docummt :filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 11/1112011)

1111112011 24 DECLARATION ofLes de Asis ofBenchmade Knife Co. in Opposition re: 16 FIRST MOTION to Dismiss Notice of Motion .. Docummt :filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 1111112011)

1111112011 25 DECLARATION ofMorgan Taylor ofTaylor Brands LLC in Oppositionre: 16 FIRST MOTION to Dismiss Notice of Motion .. Docummt :filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 1111112011)

1111112011 26 DECLARATION ofRogerC1aunchofKnifuWorks Inc. inOppositionre: 16 FIRST MOTION to Dismiss Notice of Motion .. Document :filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 1111112011)

1111112011 21 DECLARATION ofRodney Bremrr ofCohnnbia River Knife & Tool in Opposition re: 16 FIRST MOTION to Dismiss Notice of Motion .. Doc~nt filed by Jolm Cope1and, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 11/1112011)

11114/2011 28 MEMORANDUM OF LAW inOppositionre: 16 FIRST MOTION to Dismiss Notice




of Motion .. Docummt filed by Jolm CopeJand, Knife Rights, Inc., Pedro Perez. (Attaclnrents: # 1 Exhibit A,# 1 Exlubit B, # J. Exhibit C)(Jensen, David) (Entered: 11114/2011)

11/18/2011 22 ENDORSED LEITER addressed to Magistrate Judge Ronald L. Ellis from Patricia J. Bailey dated 11116/2011 re: Cmmsel fur the Defundant writes to request an extension of ~ until12/16/2011 to file a reply to Plainti:BS' response to the Imtion to dismiss. ENDORSEMENT: SO ORDERED. (Replies due by 12/16/2011.) (Signed by Magistrate Judge Ronald L. Ellis on 11118/2011) (ab) (Entered: 11118/2011)

11/18/2011 Set/Reset Hearings: Status Conference set fur 2/16/2012 at 10:00 AM befure Magistrate Judge Ronald L. Ellis. (mro) (Entered: 11121/2011)

11/2112011 30 ORDER: The parties are ordered to appear befure the court fur a status confurence on February 16, 2012, at 10:00 a.m in cmutroom 18D. In addition, aD.dilcovery shall be completed by February 29, 2012. (Signed by Magistrate Judge Ronald L. Ellis on 11/18/2011) (mro) (Entered: 11/2112011)

11/2112011 Set/Reset Deadlines: lli;covery due by 2/29/2012. (mro) (Entered: 11/22/2011)

12/16/2011 ll FIRST MOTION fur Judgtrent on the Pleadings. Docummt filed by City ofN ew York. (Lippin, Louise) (Entered: 12/16/2011)

12/16/2011 .J2. DECLARATION ofLouise Lippin in Support re: .ll FIRST MOTION fur Judgrrent on the Ple~ .. Docummt filed by City ofN ew York. (Attaclnn.mts: # 1 Exhibit A, # 2. Exlubit B)(Lippin, Louise) (Entered: 12/16/2011)

12/16/2011 33 FIRST MEMORANDUM OF LAW in Support re: 31 FIRST MOTION fur Judgrrent on the Pleadings .. Docummt filed by City ofN ew York. (Lippin, Louise) (Entered: 12/16/2011)

12/16/2011 34 FIRST REPLY MEM:ORANDUM OF LAW in Support re: 16 FIRST MOTION to Dis~s Notice of Motion. Pursuant to 12 (b) (6). Docummt filed by C~ Vance, Jr. (Bailey, Patricia) (Entered: 12/16/2011)

01/03/2012 .32 ENDORSED LEITER addressed to Magistrate Judge Ronald L. Ellis from David D . Jensen dated 12/27/2011 re: counsel fur plaintiflS writes that in light of the holidays, P1aintifiS respectfully request that the Court allow an additional two weeks fur their responsive papers, such that the response will be due January 13, 2012. ENDORSEMENT: So Ordered .. , (Responses due by 1113/2012) (Signed by Magistrate Judge Ronald L. Ellis on 1/3/2012) (pi) (Entered: 01/03/2012)

01112/2012 lQ ENDORSED LEITER addressed to Magistrate Judge Ronald L. Ellis from David D. Jensen dated 1111/2012 re: Counsel fur the p1aintiffrequests a one-week extension of the date fur responding to the City ofN ew York's IWtion fur judgrrent on the pleadings. ENDORSEMENT: SO ORDERED. (Signed by Magistrate Judge Ronald L. Elm on 1112/2012) (ft) (Entered: 01/12/2012)

01/20/2012 37 FILING ERROR- DEFICIENT DOCKET ENTRY (SEE DOCUMENT #39)-MEMORANDUM OF LAW in Opposition re: .ll FIRST MOTION fur Judgrrent on




the Pie~. Docum:mt filed by Jolm Copeland, Knifu Rights, Inc., Pedro Perez (Attaclnrents: # 1 Exhibit A,# 1 Exhibit B)( Jensen, David) Modified on 1120/2012 (kh). (Entered: 01/20/2012)

01120/2012 .3..8. DECLARATION ofDouglas S. Ritter in Opposition re: .ll FIRST MOTION fur Judgrmnt on the Ple~ .. Docum:mt filed by Jolm Copeland, Knife Rights, Inc., Pedro Perez (Jensen, David) (Entered: 01/20/2012)

01/20/2012 39 MEMORANDUM OF LAW in Opposition re: .ll FIRST MOTION fur Judgmmt on the Ple~. CORRECTED. Doc111rent filed by Jolm Copeland, Knifu Rights, Inc., Pedro Perez (Attac~nts: # 1 Exhibit A, # 2. Exhibit B)(Jensen, Davn) (Entered: 01/20/2012)

01/24/2012 40 ENDORSED LETTER addressed to Ma~trate Judge Ronakl L. Enici from Louise Lippin dated 1/20/2012 re: I write to request that the City's tim: to reply be similarly extended one week, from Jammy 23, 2012 to Jammy 30, 2012. All parties consent to this extension of1:irlx.ENDORSEMENT: SO ORDERED., (Replies due by 1130/2012.) (Signed by Ma~trate Judge Ronak:l L. Ellis on 1124/2012) (ama) (Entered: 01/24/2012)

01/27/2012 41 ENDORSED LETTER addressed to Ma~trate Judge Ronak:l L. Enici from Louise Lippin dated 1/25/2012 re: counsel fur defundants respectfu1ly request that the City be granted an additional two weeks, untiL February 15, 2012, to respond to plaintifiS' memoranda. ENDORSEMENT: So Ordered. (Signed by Magistrate Judge Ronald L. Ellis on 1127/2012) (pi) (Entered: 01/27/2012)

01/27/2012 Set/Reset Deadlines: Replies due by 2/15/2012. (pi) (Entered: 02/02/2012)

02/13/2012 42 FIRST REPLY MEMORANDUM OF LAW in Support re: 31 FIRST MOTION fur Judgrmnt on the Ple~ .. Docummt filed by City ofN ew York. (Lippin, Louise) (Entered: 02/13/2012)

02/13/2012 43 DECLARATION ofLouise Lippin in Support re: 31 FIRST MOTION fur Judgrmnt on the Ple~ .. Doc111rent filed by City ofN ew York. (Attaclnnmts: # 1 Exhibit)(Lippin, Louise) (Entered: 02/13/2012)

02/16/2012 Minute Entry fur procee~ hekl befOre Magistrate Judge Ronald L. Elm: Status Conference held on 2/16/2012. Comt instructed parties to make an application fur an extension of discovery by letter outlining in detail what has to be completed. Next conference set fur 4-5-12 @ 1 Oam (ft) (Entered: 02/28/2012)

02/24/2012 44 ENDORSED LETTER addressed to Magistrate Judge Ronakl L. Enici from Davn D. Jensen dated 2/23/2012 re: Pursuant to the Comts instructions at the hearing hekl on 16 February 2012, I write jointly with counsel fur the City and the District Attorney to outline the schedule proposed by the parties. ENDORSEMENT: So ordered.( Fact Discovery due by 4/30/2012.) (Signed by Magistrate Judge Ronald L. Ellis on 2/24/2012) (hnb) (Entered: 02/24/2012)

04/05/2012 Minute Entry fur procee~ hekl befure Magistrate Judge Ronald L. Elm;: Status Conference held on 4/5/2012. Comt granted an extension fur discovery deadlines. Parties will submit a revised discovery order to the comt to so order. (1mb) (Entered:

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04/12/2012)

04/12/2012 ~ ENDORSED LETTER addressed to Magistrate Judge Ronaki L Ellis from David D Jensen dated 4/10/2012 re: Request to extend tirre for met discovery from 4/30 to 6/15/2012. P1aintiffi; propose to designate their expert witnesses on June 18, 2012 and produce expert reports on July 2,2012. Defundants will designate their respective expert witnesses, if any, on on July 9,2012 and will produce reports from any expert witnesses onJuly23,2012. ENOORSEMENT: So Ordered. (Factlmcoverydue by6/15/2012.) (Signed by Magistrate Judge Ronaki L. Ellis on 4/1 0/2012) ( cd) (Entered: 04/12/20 12)

04/18/2012 46 NOTICE OF CHANGE OF ADDRESS by David Doug]as Jensen on behalf of An P1aintiffi;. New Address: David JensenPILC, Ill John Street, Suite 230, New York, NY, USA 10038, (212) 380-6615. (Jensen, David) (Entered: 04/18/2012)

05/23/2012 47 MOTION for Leave to File Atrended Comp1aint. Docl.IIrellt filed by Jolm Copeland, Knife Rights, Inc., Pedro Perez. (Attaclnrents: # 1 Exhibit 1, # 2. Exhibit 2)(Jensen, David) (Entered: 05/23/2012)

05/23/2012 48 DECLARATION ofDoug]as S. Ritter in Support re: .41 MOTION for Leave to File Atrended Comp1aint.. Docl.IIrellt filed by Jolm Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 05/23/2012)

05/23/2012 49 DECLARATION ofDavid D. Jensen, Esq. in Support re: 47 MOTION for Leave to File Atrended Comp1aint.. Doc~nt filed by John Cope1and, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 05/23/2012)

05/23/2012 ~ MEMORANDUM OF LAW in Support re: .41 MOTION for Leave to File Ammded Comp1aint.. Docl.IIrellt filed by Jolm Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 05/23/2012)

06/06/2012 51 ENDORSED LETTER addressed to Magistrate Judge Ronaki L. Ellis from Louti Lippin, Assistant Corpomtion Counse\ representing defundant, The City ofN ew York, dated June 4, 2012 re: PJaintifJS filed a tmtion to ~nd the comp1aint on May 23, 2012. I write to request that the tirre for defundants to respond to plaintiftS' trotion be extended to June 18, 2012. Counsel for co-defendant, Cyrus Vance, Jr. joins in this request. ENDORSEMENT: So Ordered. (Responses due by6/18/2012.) (Signed by Magistrate Judge Ronald L. Ellis on 6/5/2012) (bw) (Entered: 06/06/2012)

06/15/2012 .ll DECLARATION ofLouise Lippin in Opposition re: .41 MOTION for Leave to File Atrended Comp1aint.. DoclJirellt filed by City ofN ew York. (Attachrrents: # 1 Exhibit, # 2. Exhibit,# .3. Exhibit)(Lippin, Louise) (Entered: 06/15/2012)

06/15/2012 53 MEMORANDUM OF LAW in Opposition re: 47 MOTION for Leave to File Atrended Comp1aint.. DoclJirellt filed by City ofN ew York. (Lippin, Louise) (Entered: 06/15/2012)

06/15/2012 54 DECLARATION ofPatricia J. Bailey in Opposition re: 4 7 MOTION for Leave to File Atrended Comp1aint.. DoclJirellt filed by Cyrus Vance, Jr. (Bailey, Patricia) (Entered: 06/15/2012)




06/22/2012 55 REPLY MEMORANDUM OF LAW in Support re: 47 MOTION fur Leave to File Anxnded CompJaint.. DoclJilalt filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Jensen, David) (Entered: 06/22/2012)

06/22/2012 56 REPLY AFFIDAVIT ofDavid D. Jensen, Esq. in Support re: 47 MOTION fur Leave to File Atrended Complaint .. Docutrent filed by John Copeland, Knife Rights, Inc., Pedro Perez. (Attacln:rents: # 1 Exhibit)( Jensen, David) (Entered: 06/22/2012)

06/29/2012 ll ORDER: Expert discovery in this matter is stayed until Knife Rights' :tmtion fur leave to ammd the Complaint bas been decided, at which point the Comt will determine a revised schedule. (Signed by Ma~trate Judge Ronaki L. Etm, on 6/29/20 12) Gfe) (Entered: 06/29/2012)

09/07/2012 28. OPINION AND ORDERre: #102314 ~MOTION fur Leave to File Ammded Cotll'laint filed by John Copeland, Pedro Perez, Knife Rights, Inc. Based on the fOregoing, Knife Rights's rmtion fur leave to file an ~nded Complaint is GRANTED. (Signed by Magistrate Judge Rona1d L. Ellis on917/2012) (mro) Modified on9/10/2012 (mro ). Modified on 9/11/2012 Gab). (Entered: 09/07/2012)

09/10/2012 59 ORDER denying 31 Motion fur Judgrrent on the Pleadings; denying 16 Motion to Dismiis. In light of the decision of the ma~trate judge, this Comt now DENIES as 100ot Vance's rmtion to dismiss and the City's :tmtion fur judgment on the pie~. The Clerk of the Comt is directed to terminate Imtions #16 and #31 from the ECF docket. SO ORDERED.(Signed by Judge Barbara S. Jones on 9/10/2012) (atm) (Entered: 09/10/2012)

09/24/2012 61 AMENDED COMPLAINT a.mmding 1 Complaint against City ofN ew York, Cyrus Vance, Jr.Docl.llre1l1 filed by Knife Rights, Inc., Jolm Copeland, Pedro Perez, Native Leather, LID, Knife Rights Foundation, Inc. Related document: 1 Complaint filed by John Copeland, Pedro Perez, Knife Rights, Inc .. (p~ Gab). (Entered: 09/27/2012)

09/24/2012 ***NOTE TO A1TORNEY TO E-MAIL PDF. Note to Attorney David Douglas Jensen for noncompJiance 'With Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules & Instructions. E-MAIL the PDF for Document 61 Amended Complaint, to: [email protected]. (pi) (Entered: 09/27/2012)

09/25/2012 60 ENDORSED LETTER addressed to Ma~trate Judge Ronakl L. EDis from Eva Marie DowdeD, Patricia J. Bailey, Louise Lippin and David Jenson dated 9/21112 re: Cmmsel fur the parties writes to request permission fur the fOllowing: plaintiffs will file their ammded complaint on or about 9/21/12, additional filet discovery will be completed by 11121112; plaintifiS will produce their expert witness reports by 12/21112; Defundants DA Vance and the City ofNew York will designate their experts by January4, 2013; Defundants will produce all expert witness reports by February 15,2013. ENDORSEMENT: So ordered. (Fact Discovery due by 11/2112012.) (Signed by Magistrate Judge Rona1d L. Ellis on 9/25/2012) (mro) (Entered: 09/25/2012)

10/15/2012 22. FIRST MOTION to Dismiss the Amended Complaint. DocUirent filed by City ofNew York.(Lippin, Louise) (Entered: 10/15/2012)




10/15/2012 63 DECLARATION ofLouise Lippin in Support re: 62 FIRST MOTION to Dis~s the Amended Complaint .. Docummt filed by City ofNew York. (Attachrrents: # 1 Exhibit, # 2. Exhibit,# 3. Exhibit)(Lippin, Louise) (Entered: 10/15/2012)

10/15/2012 ~ FIRST MEMORANDUM OF LAW in Support re: .62. FIRST MOTION to Immiss the Amended Complaint .. Docummt filed by City ofNew York. (Lippin, Louise) (Entered: 10/15/2012)

10/18/2012 65 FIRST MOTION to Dismiss Notice of Motion. Docummt filed by Cyrus Vance, Jr. (Dowdell, Eva) (Entered: 10/18/2012)

10/18/2012 QQ DECLARATION ofEva Marie Dowdell in Support re: ~ FIRST MOTION to Dismiss Notice of Motion .. Document filed by Cyrus Vance, Jr. (Attachrrents: # 1 Exhibit A, # 2. Exhibit B, # 3. Exhibit C)(Dowdell, Eva) (Entered: 10/18/2012)

10/18/2012 67 FIRST MEMORANDUM OF LAW in Support re: 65 FIRST MOTION to Immiss Notice of Motion. Pursuant to R12(b)(l) and (b)(6). Document filed by Cyrus Vance, Jr. (Dowdell, Eva) (Entered: 10/18/2012)

11/07/2012 68 ENDORSED LETTER addressed to Magistrate Judge Rona1d L. Ellis from Davil D. Jensen dated I 0/29/2012 re: Request to extend t:irre fur responding to both Imtions to dismiss to 11/9/2012. ENDORSEMENT: So ordered. Set Deadlines/Hearing as to 65 FIRST MOTION to Dismiss Notice of Motion. 62 FIRST MOTION to Dismiss the Amended Complaint. (Responses due by 11/9/2012) (Signed by Magistrate Judge Rona1d L. Ellis on IIn/2012) (cd) (Entered: 11/07/2012)

11/13/2012 69 ENDORSED LETTER addressed to Magistrate Judge Rona1d L. Ellis from Loutie Lippin dated 11/09/2012 re: Accordingly, all parties respectfully request that the deadline fur discovery in this matter be extended from November 21, 2012 to December 14, 2012. ENDORSEMENT: SO ORDERED., (Fact Discovery due by 12/14/2012.) (Signed by Magistrate Judge Ronakl L. Ellis on 11/13/2012) (arm) (Entered: 11113/2012)

11/23/2012 70 MEMORANDUM OF LAW in Opposition re: 62 FIRST MOTION to Immiss the Amended Complaint .. Document filed by John Copeland, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LID, Pedro Perez. (Attachrrents: # 1 Exhibit A,# 2 Exhibit B)(Jensen, David) (Entered: 11/23/2012)

11/23/2012 71 DECLARATION ofDoug]as S. Ritter in Opposition re: 62 FIRST MOTION to Dismiss the Amended Complaint., 65 FIRST MOTION to Immiss Notice of Motion .. Docwrent filed by John Copeland, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LID, Pedro Perez. (Jensen, David) (Entered: 11123/2012)

11/23/2012 72 DECLARATION ofDavid D. Jensen, Esq. in Opposition re: 62 FIRST MOTION to Dismiss the Amended Complaint .. Docwrent filed by John Cope1and, Knifu Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LID, Pedro Perez. (Attachments:# 1 Exhibit A)(Jensen, David) (Entered: 11123/20 12)

11/23/2012 73 MEMORANDUM OF LAW inOppositionre: 65 FIRST MOTION to ImmissNotice of Motion .. Docummt filed by Jolm Copeland, Knife Rights Foundation, Inc, Knife

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Rights, Inc., Native Leather, LTD, Pedro Perez. (Attac~nts: # 1 Exhibit A)( Jensen, David) (Entered: 11/23/2012)

11128/2012 74 ENDORSED LEITER: addressed to Magistrate Judge Rona1d L. Ellis ftom Eva Marie Dowdell dated 11127/2012 re: Under Loca1Civii.Ru1e 6.1 (b)(3), ReplyMermranda are due onFmay, November 30, 2012. However, the after-effucts ofthe storm continue to adversely impact scheduling on this and other matters. Given these scheduling conflicts, District Attorney Vance and the City ofNew York* request an extension oftirre fur their ReplyMermranda ofLaw, until Friday, December 14,2012. ENDORSEMENT: So Ordered. (Signed by Magistrate Judge Rona1d L. Ellis on 11128/2012) (js) (Entered: 11128/2012)

12/14/2012 75 FIRST REPLY MEMORANDUM OF LAW in Support re: 62 FIRST MOTION to Dismiss the Amended Complaint .. Docurrent filed byCityofNewYork. (Lippin, Louise) (Entered: 12/14/2012)

12/14/2012 76 FIRST REPLY MEMORANDUM OF LAW in Support re: 65 FIRST MOTION to Disn:Ji.is Notice of Motion. Amended Complaint. Docwxmt filed by Cyrus Vance, Jr. (Bailey, Patricia) (Entered: 12/14/2012)

12/2112012 77 ENDORSED LEITER addressed to Magistrate Judge RonaJd L. Ellis from Davil D. Jensen dated 12/19/2012 re: We write to respectfully request a three week extension of the date fur producing expert reports (and concomitant extensions of the dates fur Defendants to identifY their experts and produce their own expert reports). ENDORSEMENT: So ordered. (Signed by Magistrate Judge RonaJd L. Ellis on 12/2112012) (hnb) (Entered: 12/26/2012)

01115/2013 78 ENDORSED LEITER: addressed to Magistrate Judge Rona1d L. Ellis ftom Davd D. Jensen dated 1/10/2013 re: After ~cussing this matter at length, we have concluded that we need an additional three weeks to complete the expert witness reports. Under this revised schedule: PlaintiflS would produce expert reports by February 1, 2013; Defendants would identiJY their experts by February 15, 2013; and, Defendants would produce expert reports byMarch29, 2013 ENDORSEMENT: So Ordered. (Signed by Magistrate Judge Rona1d L. Ellis on 1115/2013) (js) (Entered: 01115/2013)

05/29/2013 79 NOTICE OF CASE REASSIGNMENT to Judge Katherine B. Forrest. Judge Barbara S. Jones is no k>nger assigned to the case. (pgu) (Entered: 05/29/2013)

09/25/2013 80 MEMORANDUM DECISION & ORDER granting 62 Motion to Disn:Ji.is; granting 65 Motion to Dismiss. P1aintiflS have :fuiled to allege a "concrete, particularized, and actual or imminent" iqjmy that would be ''redressable by a :favorable ruling." Horne, 557 U.S. at 445. TherefOre, no P1aintiffhas standing to challenge the prohibition on possessing switchblade knives. As such, the Court need not address whether the Penal Law's definition of"switchblade knife" is unconstitutionally vague. For the reasons set fOrth above, defendants' tmtions are GRANTED and the case is DISMISSED. The Clerk of Court is directed to ck>se the rmtions at ECF Nos. 62 and 65 and to terminate this case. (Signed by Judge Katherine B. Forrest on 9/24/2013) (:mro) (Entered: 09/25/2013)




09/25/2013 Transmission to Judgrrent:s and Orders Clerk. Transmitted re: 80 Order on Motion to Dismiss, to the Judgnxnts and Orders Clerk. (mro) (Entered: 09/25/2013)

09/25/2013 81 CLERK'S JUDGMENT: That fur the reasons stated in the Comt's Metmrandum Decision and Order dated Septen:ber 24, 2013, defendants :tmtions are granted and the case is dismissed; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on9/25/2013) (Attac~nts: # 1 Notice ofRight to Appeal)(dt) (Entered: 09/25/2013)

10/07/2013 .82. MOTION fur Reconsideration re; .8..Q Order on Motion to Dismiss,,,,. Docummt filed by Jolm Cope1and, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LTD, Pedro Perez(Jensen, Dam) (Entered: 10/07/2013)

10/07/2013 83 MEMORANDUM OF LAW in Support re: 82 MOTION fur Reconsideration re; 80 Order on Motion to Dismiss,,, .. Docummt filed by Jolm Copeland, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LTD, Pedro Perez. (Jensen, Dam) (Entered: 10/07/2013)

10/18/2013 84 FIRST MEMORANDUM OF LAW in Opposition re: 82 MOTION fur Reconsideration re; 80 Order on Motion to Dismiss,,, .. Docummt filed by City of New York. (Lippin, Louise) (Entered: 10/18/2013)

10/2112013 85 MEMO ENDORSEMENT on re: 83 Me:tmrandum ofLaw in Support ofMotion filed by Knife Rights Foundation, Inc, Native Leather, LTD, John CopeJand, Pedro Pere~ Knife Rights, Inc. ENDORSEMENT: Ordered: To consider this :tmtion fully, pla.intiflS shoukl provide a proposed arrended complaint within one week. (Signed by Judge Katherine B. Forrest on 10/18/2013) (mro) (Entered: 10/21/2013)

10/2112013 .82 DECLARATION ofEva Marie Dowdell in Opposition re: .82. MOTION fur Reconsideration re; 80 Order on Motion to Dismiss,,, .. Docummt filed by Cyrus Vance, Jr. (Dowdell, Eva) (Entered: 10/21/2013)

10/25/2013 87 REPLY MEMORANDUM OF LAW in Support re: 82 MOTION fur Reconsideration re; 80 Order on Motion to Dismiss,,, .. Docummt filed by Jolm Copeland, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LTD, Pedro Perez. (Jensen, Dam) (Entered: 10/25/2013)

10/28/2013 ~ FILING ERROR- ELECTRONIC FILING OF NON-ECF DOCUMENT-RESPONSE in Support ofMotion re: 82 MOTION fur Reconsideration re; .8..Q Order on Motion to Dismiss. Plaintiffs' Proposed Amended Complaint. Docl.IIlXnt :filed by Jolm Cope1and, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LTD, Pedro Perez (Attacl.nmnts: # 1 Exhibit I, # 2 Exhibit 2)(Jensen, David) Modified on 10/29/2013 (db). (Entered: 10/28/2013)

10/29/2013 ***NOTE TO ATTORNEY TO RE-FILE DOCUMENT- NON-ECF DOCUMENT ERROR. Note to Attorney David Douglas Jensen to MANUALLY RE-FILE Document No. 88 Amended Complaint. This document is not filed via ECF. (db) (Entered: 10/29/2013)




10/29/2013 89 MEMO ENDORSEMENT on re: 84 Mermrandum oflaw in Opposition to Motion filed by City ofNew York. ENDORSEMENT: The parties are to indicate not Jater than C.O.B. 11/8/13, whether the [proposed] Second Am Complaint contains new filctual material as to which no discovery was taken (cite paragraphs) and if so, what additional discovery would be necessary. The Court is not deciding any rrotions by this Order. (Signed by Judge Katherine B. Forrest on 10/29/2013) (1mb) (Entered: 10/29/2013)

10/30/2013 90 LETIER MOTION fur Extension ofTilre to File Response/Reply as to 84 Mermrandum oflaw in Opposition to Motion, 86 Dec1aration in Opposition to Motion addressed to Judge Katherine B. Forrest ftomLouise Uppin dated October 30, 2013. Doclllrent filed by City ofN ew Y ork.(Lippin, Louise) (Entered: I 0/30/2013)

10/30/2013 91 ORDER granting 90 Letter Motion fur Extension of Titre to File Response/Reply: You will have an opportunity to fully respond. I want the parties to indicate whether the new allegations significantly aher a case in which discovery has long been closed. (Signed by Judge Katherine B. Forrest on 10/30/2013) (tn) (Entered: 10/30/2013)

11/08/2013 92 RESPONSE re: 89 Merm Endorsemmt, regarding new discovery. Docummt filed by John CopeJa.nd, Knife Rights Fowdation, Inc, Knife Rights, Inc., Native Leather, LTD, Pedro Perez (Jensen, David) (Entered: 11/08/2013)

11/08/2013 .23. LETIER addressed to Judge Katherine B. Forrest ftom Louise Lippin dated N ovenber 8, 2013 re: Motion fur Reconsneration Docummt filed by City ofNew York.(Lippin, Louise) (Entered: 11/08/2013)

11/12/2013 !M MOTION fur Leave to File Response to Defundants' Statemmt. DoclJ[]Xnt filed by John Copeland, Knife Rights Fowdation, Inc, Knife Rights, Inc., Native Leather, LTD, Pedro Perez (Attacln:rents: # 1 Appendix Proposed Response)(Jensen, David) (Entered: 11/12/2013)

11/20/2013 ~ MEMORANDUM DECISION & ORDER denying .82. Motion fur Reconsneration; denying 94 Motion fur Leave to File Docl.llrent. For these reasons, plaintifiS' :rmtion fur reconsneration (ECF No 82) is DENIED. Because plaintiflS' rmtion fur Jeave to respond to defendants' statemmt (ECF No. 94) woukl not alter that resuh, that rmtion is DENIED as rmot. The Clerk of Court is directed to close the rmtions at ECF Nos. 82 and 94. (Signed by Judge Katherine B. Forrest on 11/20/2013) (mro) (Entered: 11/20/2013)

12/11/2013 96 ENDORSED LETIER addressed to Judge Katherine B. Forrest ftomDavid D. Jensen dated 12/11/2013 re: PlaintiflS request that the Court direct the C1erk's office tore-file the proposed anGlded pleading (Doc. No. 88) on the ECF docket. ENDORSEMENT: Filing of the proposed ammded complaint as a funnal pleading was denied. However, fur completeness of the record, the Court does alk>w the proposed ammded complaint to be posted to the docket. (Signed by Judge Katherine B. Forrest on 12/11/2013) (tn) (Entered: 12/11/2013)

12/18/2013 97 NOTICE OF CHANGE OF ADDRESS by David Doug]as Jensen on behalf of All P1aintiffi;. New Address: David JensenPLLC, 111 Jolm Street, Suite 420, New York, New York, US 10038, 212-380-6615. (Jensen, David) (Entered: 12/18/2013)




12/18/2013 98 NOTICE OF APPEAL :from 95 Order on Motion fur Reconsneration, Order on Motion fur Leave to File Docurnmt,, .8.0. Order on Motion to Dismiss,,,,. Docmrent :filed by Jolm Copeland, Knife Rights Foundation, Inc, Knife Rights, Inc., Native Leather, LID, Pedro Perez. Filing fee$ 505.00, receipt m.nnber 0208-9189116. Forme and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Jensen, David) (Entered: 12/18/2013)

12/18/2013 Transmission ofN ot:ice of Appeal and Certified Copy ofDocket Sheet to US Court of Appeals re: .2.8. Notice ofAppea~. (nd) (Entered: 12/18/2013)

12/18/2013 Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files fur .6.3. Dec1aration in Support ofMotion filed by City ofN ew York, .5.4 Declaration in Opposition to Motion :filed by Cyrus Vance, Jr., 2.0. LEITER MOTION fur Extension ofTirre to File Response/Reply as to .8.4 Merrorandum ofLaw in Opposition to Motion, .8.6 Dec1aration in Opposition to Motion addressed to Judge Katherine B. Forrest :from Louise Ljppindated October 30,2013. LETIERMOTION fur Extension ofTirre to File Response/Reply as to .8.4 Metmrandum ofLaw in Opposition to Motion, .8.6 Declaration in Opposition to Motion addressed to Judge Katherine B. Forrest :from Louise Ljppin dated October 30, 2013. filed by City ofNew York, .3..0. Order, Set Deadlines, .25. Order on Motion fur Reconsneration, Order on Motion fur Leave to File Docurnmt,, .3. Endorsed Letter, Set Deadlines/Hearings, .8.4 Metmrandum ofLaw in Opposition to Motion filed by City ofN ew York, ~ Endorsed Letter, 2.6 Endorsed Letter, .6.Q Endorsed Letter, Set Deadlines,, ll Mem:mmdum of Law in Support ofMotion :filed by City ofN ew York, .5.5. Reply Metmrandum ofLaw in Support ofMotion :filed by John Copeland, Pedro Perez, Knife Rights, Inc., S2. Declaration in Opposition to Motion filed by City ofN ew York, .5. N ot:ice of Appearance :filed by City ofN ew York, 3.2 Dec1aration in Support ofMotion filed by City ofN ew York, 21 Order on Motion fur Extension ofTirre to File Response/Reply, .3..5. Endorsed Letter, Set Scheduling Order Deadlines, .8.1 Clerk's Judgrmmt, .5..8. Metmrandum& Opinion, ll Stipulation and Order ofVohmta.ry Dismiss~, ~ Notice of Appearance :filed by City ofNew York, .6 Notice of Appearance :filed by Cyrus Vance, Jr., .8.0. Order on Motion to Dismiss,,, .62 Endorsed Letter, Set Deadlines/Hearings, 2.1 Dec1aration in Oppositx:m to Motion :filed by John Copeland, Pedro Perez, Knife Rights, Inc., 18. Metmrandum ofLaw in Support ofMotion filed by Cyrus Vance, Jr., 24. MOTION fur Leave to File Response to Derendants' Staterrent. fi1ed by Knife Rights Foundation, Inc, Native Leather, LID, Jolm CopeJand, Pedro Perez, Knife Rights, Inc., 2.6. Dec1aration in Opposition to Motion filed by John Copeland, Pedro Perez, Knife Rights, Inc., .8. Notice of Appearance filed by Cyrus Vance, Jr., 18. Dec1aration in Opposition to Motion filed by John CopeJand, Pedro Perez, Knife Rights, Inc., .62 FIRST MOTION to Immiss the Amended Complaint. filed by City ofN ew York, 3.1 Metmrandum ofLaw in Opposition to Motion, filed by John Cope1and, Pedro Perez, Knife Rights, Inc., 2.3. Letter filed by City ofN ew York, M Metmrandum ofLaw in Support ofMotion filed by City ofN ew York, ~ Endorsed Letter, Set Deadlines/Hearings, .ll FIRST MOTION fur Judg~mnt on the Pleadings. filed by City ofN ew York, .8.1 Reply Merrorandum ofLaw in Support ofMotion, :filed by Knife Rights Foundation, Inc, Native Leather, LID, Jolm Copeland, Pedro Perez, Knife Rights, Inc., .6.6 Dec1aration in Support ofMotion filed by




Cyrus Vance, Jr., 20 Endorsed Letter, 39 Metmrandmn ofLaw in Opposition to Motion filed by John Copeland, Pedro Perez, Knife Rights, Inc., 50 Metmrandmn ofLaw in Support ofMotion :filed by Jolm Copeland, Pedro Perez, Knife Rights, Inc., 28 Metmrandmn oflaw in Opposition to Motion :filed by John Copeland, Pedro Perez, Knife Rights, Inc., 76 Reply Metmrandum ofLaw in Support ofMotion :filed by Cyrus Vance, Jr., 56 Reply Affidavit in Support ofMotion filed by Jolm Copeland, Pedro Perez, Knifu Rights, Inc., Ql ~ed Complaint, filed by Knife Rights Foundation, Inc, Native Leather, LID, Jolm Cope1and, Pedro Perez, Knife Rights, Inc., 45 Endorsed Letter, Set Deadlines/Hearings,, 34 Reply Metmrandum ofLaw in Support ofMotion :filed by Cyrus Vance, Jr., 36 Endorsed Letter, 53 Metmrandum ofLaw in Opposition to Motion filed by City ofN ew York, 48 Declaration in Support ofMotion filed by John Copeland, Pedro Perez, Knife Rights, Inc., 11 Declaration in Opposition to Motion, filed by Knife Rights Foundation, Inc, Native Leather, LTD, John Cope1and, Pedro Perez, Knife Rights, Inc., M Endorsed Letter, 12. Declaration in Opposition to Motion, filed by Knife Rights Foundation, Inc, Native Leather, LID, Jolm Cope1and, Pedro Perez, Knife Rights, Inc., 44 Endorsed Letter, Set Deadlines, 1 Comp1aint filed by John Copeland, Pedro Perez, Knifu Rights, Inc., 51 Endorsed Letter, Set Deadlines/Hearings,, 79 Notice of Case Assigmrent/Reassignm.mt, 17 Declaration in Support ofMotion filed by Cyrus Vance, Jr., .U Answer to Comp1aint filed by City ofNew York, 2.8. Endorsed Letter, Set Motion and R&R Deadlines/Hearings, 59 Order on Motion for Judgmmt on the Pleadings, Order on Motion to Dismiss, 42 Reply Metmrandum ofLaw in Support ofMotion filed by City ofN ew York, 82 MOTION fur Reconsideration re; 80 Order on Motion to Dismiss,,,. filed by Knife Rights Foundation, Inc, Native Leather, LID, John Copeland, Pedro Perez, Knife Rights, Inc., 47 MOTION fur Leave to File Ammded Comp1aint. filed by John Cope1and, Pedro Perez, Knifu Rights, Inc., 49 Declaration in Support ofMotion filed by Jolm Copeland, Pedro Perez, Knife Rights, Inc., 21... Declaration in Opposition to Motion filed by Jolm Cope1and, Pedro Perez, Knife Rights, Inc., 43 Declaration in Support ofMotion filed by City ofN ew York, 1Q Metmrandmn ofLaw in Opposition to Motion, filed by Knife Rights Foundation, Inc, Native Leather, LTD, John Cope1and, Pedro Perez, Knife Rights, Inc., 67 Metmrandmn ofLaw in Support ofMotion filed by Cyrus Vance, Jr., 14 Endorsed Letter, Set Deadlines, 1R Endorsed Letter, 97 Notice ofChange of Address filed by Knife Rights Foundation, Inc, Native Leather, LID, Jolm Cope1and, Pedro Perez, Knife Rights, Inc., .8j, Metro Endors~ 11 StipuJation ofVohmtary Disnmsal, filed by Eric Schneiderman, 19 Endorsed Letter, Set Deadlines, 24 Declaration in Opposition to Motion filed by John Copeland, Pedro Perez, Knife Rights, Inc., 77 Endorsed Letter, 29 Endorsed Letter, Set Motion and R&R Deadlines/Hearings, 46 Notice of Change of Address filed by Jolm Copeland, Pedro Perez, Knife Rights, Inc., .2 Order fur Initial Pretrial Conference, .8..6. Declaration in Opposition to Motion filed by Cyrus Vance, Jr., 16 FIRST MOTION to Disnms Notice of Motion. filed by Cyrus Vance, Jr., 12 Endorsed Letter, Set Deadlines, Set Hearings,,, 2. Rule 7.1 Corporate Disclosure Statetrent filed by Jolm Copeland, Pedro Perez, Knifu Rights, Inc., 75 Reply Memorandmn oflaw in Support ofMotion :filed by City ofN ew York, 73 Memorandmn ofLaw in Opposition to Motion, filed by Knife Rights Foundation, Inc, Native Leather, LID, Jolm Copeland, Pedro Perez, Knife Rights, Inc., 1 Order Refurring Case to Magistrate Judge, .8.2 Metm Endorsemmt, 22




Declaration in Opposition to Motion filed by John Copeland, Pedro Perez, Knife Rights, Inc., 25 Declaration in Opposition to Motion fiJed by John Copeland, Pedro Perez, Knife Rights, Inc., 98 Notice of Appeal, filed by Knife Rights Foundation, Inc, Native Leather, LTD, John Copeland, Pedro Perez, Knife Rights, Inc., 65 FIRST MOTION to Dismiss Notice of Motion. filed by Cym; Vance, Jr., 92 Response filed by Knife Rights Foundation, Inc, Native Leather, LTD, John Copeland, Pedro Perez, Knife Rights, Inc., ~ Order, .8..8. Response in Support ofMofun, filed by Knife Rights Foundation, Inc, Native Leather, LTD, John Copeland, Pedro Perez, Knife Rights, Inc., 83 Metmrandum ofLaw in Support ofMotion fiJed by Knife Rights Foundation, Inc, Native Leather, LTD, Jolm Copeland, Pedro Perez, Knife Rights, Inc., 10 No&e of Appearance filed by Eric Schneiderman were transmitted to the U.S. Comt of Appeals. (nd) (Entered: 12/18/2013)

I PACER Service Center I I Transaction Receipt I I 01/01/2014 18:41:40 I IPACm Login:lldj2092 llrnent Code: I

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Case 1:11-cv-03918-KBF-RLE Document 80 Filed 09/25/13 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------}C

KNIFE RIGHTS, INC., et al.,

Plaintiffs,

-v-

CYRUS VANCE, JR., et al.,

Defendants.

----------------------------------------------------------------------}C

KATHERINE B. FORREST, District Judge:

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC#: ___ ____,---DATE FILED:$EP 2 5 2013-

11 Civ. 3918 (KBF)

MEMORANDUM DECISION & ORDER

Plaintiffs Knife Rights, Inc., John Copeland, Pedro Perez, Native Leather,

Ltd., and Knife Rights Foundation, Inc. filed suit against Manhattan District

Attorney Cyrus Vance, Jr., and the City of New York under 42 U.S.C. § 1983 on

June 9, 2011. Plaintiffs allege that Defendants' application of New York Penal Law

§ 265.0l's prohibition on the possession of switchblade knives and gravity knives to

possessors of common folding knives ("CFKs") makes§ 265.01 void for vagueness

under the Due Process Clause of the Fourteenth Amendment.

Defendants have each moved to dismiss Plaintiffs' claims for lack of standing

and failure to state a claim. The Court agrees that Plaintiffs lack standing to attack

the prohibitions on both switchblade knives and gravity knives. Therefore,

Defendants' motions are GRANTED and the case is DISMISSED.

I. BACKGROUND

The core allegation of Plaintiffs' complaint is that Defendants enforce the law

against criminal possession of a weapon in the fourth degree, N.Y. Penal Law



§ 265.01 (McKinney 2013), against possessors of"folding pocket knives that are

designed to resist opening from the closed position," which Plaintiffs call "Common

Folding Knives" ("CFKs"). (Am. Compl. ,, 1, 3, ECF No. 61.)

Section 265.01 states in relevant part that a "person is guilty of criminal

possession of a weapon in the fourth degree" when he or she possesses any "gravity

knife" or "switchblade knife." N.Y. Penal Law§ 265.01. A "switchblade knife" is

defined in the Penal Law as "any knife which has a blade which opens

automatically by hand pressure applied to a button, spring or other device in the

handle of the knife." Id. § 265.00(4). A "gravity knife" 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." Id. § 265.00(5).

A. Pedro Perez and John Copeland

On April15, 2010, New York City Police officers stopped Perez and charged

him with possession of a gravity knife. (Am. Compl. ,, 33-37.) On October 10,

2011, Copeland was charged by New York Police Department officers with

possession of a gravity knife. (Am. Compl. ,, 25-28.) The charges against Perez

and Copeland were both resolved by Adjournments in Contemplation of Dismissal.

(Am. Compl. ,l, 31, 38.) Neither Plaintiff alleged that N.Y. Penal Law§ 265 was void for vagueness when he was charged with possession of gravity knives in 2010

or 2011. (See id.)

2



Both Plaintiffs now claim that they want to possess knives similar to the ones

that they possessed when charged, but that they have not bought such knives

because they lack certainty about the law and whether "any particular CFK might

be deemed a prohibited switchblade or gravity knife." (Am. Compl. ~ 32, 39.)

B. Native Leather, Ltd.

Plaintiff Native Leather is a New York City knife retailer. On June 17, 2010,

District Attorney Vance "announced plans to pursue charges" against retailers,

including Native Leather, for "marketing prohibited switchblade and gravity

knives." (Id. ~~ 40-41.) In response, Native Leather, like other retailers, entered

into a Deferred Prosecution Agreement under which it turned over many of its

knives, paid monetary penalties, and pledged to cease from selling prohibited

knives. (ld. ~ 42-44.) Native Leather did not allege that N.Y. Penal Law§ 265 was

void for vagueness before turning over the knives it possessed.

Native Leather states that to avoid further prosecution, it only sells knives

that a "designated employee is not able to 'wrist-flick' open," and does not sell

"assisted-opening knives" that it would otherwise sell. (Am. Compl. ~~ 45-46.)

C. Knife Rights, Inc .. and Knife Rights Foundation, Inc.

Plaintiffs Knife Rights, Inc. ("Knife Rights"), and Knife Rights Foundation,

Inc. ("the Foundation"), are nonprofit organizations. (ld. ~~ 10, 13.) Knife Rights

sues on behalf of members and supporters whom Defendants have arrested,

charged, prosecuted, and/or threatened to arrest, charge, and prosecute for carrying

CFKs. (ld. ~~ 47-51.) The Foundation alleges that it "has paid or contributed

3



towards, and continues to pay and contribute towards, some of the monetary

expenses that Knife Rights has incurred and continues to occur in consequence of

Defendants' threatened enforcement of [N.Y. Penal Law§ 265.01] ... at the expense

of other organizational priorities." (Id. ~ 52.)

D. Procedural History

Defendants argue that no party has standing to challenge the definition of

"switchblade knife," because no one charged or threatened to charge Copeland,

Perez, and Native Leather with possession of a switchblade. (City of New York's

Mem. of L. in Supp. Mot. to Dismiss (City Mem.) 11-12.) Defendants also argue

that no party has standing to challenge the definition of "gravity knife," because

Copeland, Perez, and Native Leather face no actual or imminent injury from the

ban on gravity knives, especially because no party has alleged the specific types of

knives it wants to sell or to carry. (Mem. ofL. in Supp. D.A. Vance's Mot. to

Dismiss (Vance Mem.) 11-12.) Defendants also allege that Knife Rights and the

Foundation lack standing entirely because they face no injury whatsoever from the

knife ban. (City Mem. 8-11; Vance Mem. 8-10.)

Because the Court agrees that all parties lack standing to challenge the

definitions of"switchblade knife" and "gravity knife," Defendants' motions to

dismiss are GRANTED. 1

1 Because the Court resolves the Motions to Dismiss on standing, the Court need not reach Defendants' further argument that the prohibitions on possessing gravity or switchblade knives under N.Y. Penal Law § 265.00(4)-(5) are not unconstitutionally vague. (See City Mem. 12-23; Vance Mem. 13-24.)

4



II. STANDARDS OF REVIEW

A. Rule 12(b)(l)

The Court considers a motion to dismiss for lack of standing as a Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See, e.g.,

Rothstein v. UBS AG, 708 F.3d 82, 90 (2d Cir. 2013). On such motions, the Court

must "borrow from the familiar Rule 12(b)(6) standard, construing the complaint in

plaintiffs favor and accepting as true all material factual allegations contained

therein." See Donoghue v. Bulldog Investors Gen. P'ship, 696 F.3d 170, 173 (2d Cir.

2012).

B. Rule 12(b)(6)

To survive a motion to dismiss, "a complaint must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face."'

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell AtL Corp. v. Twombly, 550

U.S. 544, 570 (2007). That is, "the plaintiff must provide the grounds upon which

[its] claim rests through factual allegations sufficient 'to raise a right to relief above

the speculative leveL"' ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98

(2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal,

556 U.S. at 678 (citation omitted). "[M]ere conclusory statements" or "threadbare

recitals of the elements of a cause of action" are insufficient. I d.

5



C. Standing

Article III of the United States Constitution limits the jurisdiction of the

federal courts to adjudicating actual "cases" and "controversies." Allen v. Wright,

468 U.S. 737, 750 (1984). "[A]n essential and unchanging part" of Article III's case-

or-controversy requirement is standing. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992). "To establish standing, a plaintiff must present an injury that is

concrete, particularized, and actual or imminent; fairly traceable to the defendant's

challenged action; and redressable by a favorable ruling." Horne v. Flores, 557 U.S.

433, 445 (2009) (citing Lujan, 504 U.S. at 560-61).

Where a plaintiff claims standing based on an imminent rather than actual

harm, the standard is high. '"[T]hreatened injury must be certainly impending to

constitute injury in fact,"' and "'[a]llegations of possible future injury' are not

sufficient." Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013) (quoting

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).

D. "Void for Vagueness"

"The 'void for vagueness' doctrine, grounded in the Due Process Clause,

'requires that a penal statute define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited and in a manner

that does not encourage arbitrary and discriminatory enforcement."' United States

v. Hashmi, No. 06 Crim. 442 (LAP), 2009 WL 4042841, at *6 (S.D.N.Y. Nov. 18,

2009) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).

6



III. DISCUSSION

The Court agrees that all Plaintiffs lack standing to challenge the provisions

defining "switchblade knife" and "gravity knife." The Court therefore need not

reach the question whether the provisions are in fact void for vagueness.

A. Standing as to Perez, Copeland, and Native Leather

Plaintiffs allege that Perez and Copeland want to carry certain knives and

that Native Leather wants to sell certain knives, but that all parties fear arrest

under the switchblade and gravity knife provisions. (Mem. of Law in Opp'n to Def.

City's Second Mot. to Dismiss (Pis.' Opp'n to City) at 24; Am. Compl. ~~ 32, 39, 46.)

Plaintiffs' concerns are insufficient to confer standing, because they fail to

present a "concrete, and particularized" and "actual or imminent" injury in fact that

arises from the definitions of "switchblade" and "gravity" knives being

unconstitutionally vague. See Lujan, 504 U.S. 560-61. Copeland and Perez may

have faced injury when they were arrested, and Native Leather may have faced an

injury if D.A. Vance pursued charges against it for selling prohibited knives. (Am.

Compl. ~ 30-31, 38, 40, 42.) But no Plaintiff moved to dismiss the charges on the

basis that the provisions in question were unconstitutionally vague. Instead, both

individual Plaintiffs resolved their charges through Adjournments in Contemplation

of Dismissal, and Native Leather voluntarily entered into an agreement with the

City in exchange for its agreement not to pursue charges. Thus, no Plaintiff

currently faces "certainly impending" harm as a result of the statute, Lujan, 504

7



U.S. at 565 n.2, that would be "redressable by a favorable ruling," Horne, 557 U.S.

at 445.

The injury that Plaintiffs do allege is completely hypothetical and "highly

speculative." Clapper, 133 S. Ct. at 1148. Perez and Copeland claim that they want

to possess a knife "similar" to the one they possessed at the time of their arrests.z

(Am. Com pl. 'If 32, 39.) But neither individual alleges the make and model of knife

that he wants to carry or specifically describe it, and this Court declines-Bspecially

on such limited factual allegations-to engage in "guesswork as to how independent

decisionmakers will exercise their judgment." Clapper, 133 S. Ct. at 1150 (citing

Whitmore, 495 U.S. at 159-60). Nor do Plaintiffs allege any facts showing why they

cannot purchase another type of tool or knife not prohibited by law.

Similarly, the only harm that Native Leather currently suffers is its inability

to sell illegal knives in order to "adhere to its compliance program." (Am. Compl. 'If

44.) An agreement to follow the law hardly creates an actual and imminent injury

in fact. Native Leather further argues that it is unable to stock certain knives

because of a speculation that "some other person" might be able to "wrist-flick' them

open and thus implicate the statute. (Id. at 45.) That concern is mere conjecture.

"A plaintiff must allege something more than an abstract, subjective fear that his

rights are chilled in order to establish a case or controversy." Nat'l Org. Marriage,

2 The Court notes that Perez and Copeland were arrested for possessing-and profess a future desire to possess-knives that were allegedly gravity knives, not switchblade knives. (See Am. Compl. ~~ 30-32, 37-39.) Furthermore, Native Leather and other retailers turned over knives "similar" to those possessed by Perez and Copeland-i.e., also gravity knives. ~~Am. Compl. ~~ 40-42.) Thus, even if Plaintiffs could claim an injury based on their interest in possessing "similar" knives in the future, those claims are relevant Q_I!ly to the gravity ban, not the switchblade ban.

8



Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir. 2013). Native Leather's desire to skirt the

edges of the law does not create an injury sufficient for Article III standing. See

Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952) ("Nor is it unfair to

require that one who deliberately goes perilously close to an area of proscribed

conduct shall take the risk that he may cross the line.").

Because all three Plaintiffs allege an injury that is far "too speculative for

Article III purposes," Lujan, 504 U.S. at 565 n.2, their Complaint is a prototypical

request for an advisory opinion. Plaintiffs ask this Court to determine that the

statute is unconstitutionally vague without showing any actual or imminent and

redressable harm deriving from the statute. The advisory nature of this request is

particularly clear because Plaintiffs fail to describe with specificity the nature of the

knives they wish to own or the injury caused by their inability to do so. Under such

circumstances, the Court's standing inquiry must be "especially rigorous." Clapper,

133 S. Ct. at 1147 (quoting Raines v. Byrd, 521 U.S. 811, 819 (1997)). The Court

refuses to entertain a request for an advisory opinion: "Article III standing, which is

built on separation-of-powers principles, serves to prevent the judicial process from

being used to usurp the powers of the political branches." Id. at 1146.

B. Standing as to Knife Rights and the Foundation

Knife Rights and the Foundation make an even more attenuated claim for

standing: they argue that they have standing because they have expended resources

to oppose the switchblade ban. (See Pis.' Opp'n to City 21-23; Am. Campi.~ 52.)

9



While Knife Rights and the Foundation cannot bring a§ 1983 suit on behalf

of their members, they have standing to sue if they themselves "independently

satisfy the requirements of Article III"-that is, that they themselves have suffered

an actual or imminent injury in fact that is fairly traceable to Defendants' conduct

and that can redressed by a favorable decision. Nnebe v. Daus, 644 F. 3d 147, 156

(2d Cir. 2011).

Plaintiffs argue that the expenditure of litigation expenses that causes a

"perceptible impairment" to their other priorities can constitute an injury in fact

sufficient to show standing. See Nnebe, 644 F.3d at 157-58. But to sue based on

litigation expenses, a plaintiff organization must be challenging a practice by

defendants that actually affects its members. Otherwise, the organization itself has

suffered no actual or imminent harm. See, e.g., Havens Realty Corp. v. Coleman,

455 U.S. 363, 379 (1982); Nnebe, 644 F.3d at 157-58; Ragin v. Harry Macklowe Real

Estate Co., 6 F.3d 898, 905 (2d Cir. 1993); New York v. U.S. Army Corp. of Eng'rs,

896 F. Supp. 2d 180, 191 (E.D.N.Y. 2012). "An organization's abstract concern with

a subject that could be affected by an adjudication does not substitute for the

concrete injury required by Art. III" Simon v. Eastern Ky. Welfare Rights Org., 426

U.S. 26, 40 (1976).

Here, the injury that the organization Plaintiffs allege to their members is-

like the injury alleged by the individual Plaintiffs, and for the same reasons-

merely "speculative." Lujan, 504 U.S. at 565 n.2. At most, Knife Rights and the

Foundation have expended litigation resources in order to avoid an entirely

10



hypothetical possibility that the government's policies will injure their members.

Plaintiffs "cannot manufacture standing merely by inflicting harm on themselves

based on their fears of hypothetical future harm that is not certainly impending."

See Clapper, 133 S. Ct. at 1151.

IV. CONCLUSION

Plaintiffs have failed to allege a "concrete, particularized, and actual or

imminent" injury that would be "redressable by a favorable ruling." Horne, 557

U.S. at 445. Therefore, no Plaintiff has standing to challenge the prohibition on

possessing switchblade knives. As such, the Court need not address whether the

Penal Law's definition of "switchblade knife" is unconstitutionally vague. 3

For the reasons set forth above, defendants' motions are GRANTED and the

case is DISMISSED. The Clerk of Court is directed to close the motions at ECF

Nos. 62 and 65 and to terminate this case.

Dated:

SO ORDERED.

New York, New York September~. 2013

KATHERINE B. FORREST United States District Judge

3 While the Court does not reach the issue, the Court notes that several courts have already held that the definitions of knives are not vague. See, e.g., People v. Herbin, 927 N.Y.S.2d 54, 56 (App. Div. 2011) ("[T]he statutory prohibition of possession of a gravity knife is not unconstitutionally vague .... [The statute's] language provides notice to the public and clear guidelines to law enforcement as to the precise characteristics that bring a knife under the statutory proscription.") (citations omitted); People v. Kong Wang, No. 570304/05, 851 N.Y.S.2d 72, at *1 (App. Term Oct. 31. 2007) (per curiam) ("[T]he Penal Law provisions defining 'gravity knife' are not impermissibly vague as applied to defendant.") (citations omitted).

11


http:N.Y.S.2dhttp:N.Y.S.2d


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------···-----------------------------------------2C

KNIFE RIGHTS, INC., et aL,

Plaintiffs,

-v-

CYRUS VANCE, JR., et al.,

Defendants.

----------------------------------------------------------------------2C

KATHERINE B. FORREST, District Judge:

USDC SONY DOCUMENT ELECTRONICALLY FILED DOC

DATE FILED: NOV 2 0 2013'

11 Civ. 3918 (KBF)

MEMORANDUM DECISION & ORDER

Before the Court is plaintiffs Knife Rights, Inc., John Copeland, Pedro Perez,

Knife Rights Foundation, Inc. and Native Leather, Ltd.'s motion for reconsideration

of the Court's September 25, 2013 Memorandum Decision & Order ("Decision," ECF

No. 80) pursuant to Local Rule 6.3. (ECF No. 82.) In that Decision, the Court

dismissed plaintiffs' complaint because they had no standing to challenge

defendants' prohibition on the possession of switchblade and gravity knives. (See

Decision 1, 11.) For the following reasons, plaintiffs motion for reconsideration is

DENIED.

On June 9, 2011, over two years ago, plaintiffs filed their initial complaint.

(ECF No. 1.) On December 16, 2011, defendants filed a motion for judgment on the

pleadings, in which they argued, inter alia, that plaintiffs lacked standing to

challenge the laws at issue here. (ECF No. 33 at 8-11.) After several months of

motion practice, lasting from May 23 to September 24, 2012, plaintiffs filed an



amended complaint. (See ECF Nos. 47-61.) That amended complaint failed to cure

plaintiffs' lack of standing, which this Court found fatal to their claims. As the

Court noted in its Decision, no plaintiff in this case alleged a "concrete,

particularized, and actual or imminent" injury that would be "redressable by a

favorable ruling." (Decision 11 (citing Horne v. Flores, 557 U.S. 433, 445 (2009)).)

Accordingly, the Court dismissed plaintiffs' complaint. (ld.)

Plaintiffs filed the instant motion for reconsideration on October 7, 2013.

(ECF No. 82.) In order to fully consider the motion, the Court directed plaintiffs to

submit a proposed amended complaint (ECF No. 85), which they did on October 28.

(Proposed Am. Compl., ECF No. 88.)

"Reconsideration of a court's previous order is an extraordinary remedy to be

employed sparingly in the interests of finality and conservation of scarce judicial

resources." Global View Ltd. Venture Capital v. Great Cent. Basin Exploration,

L.L.C., 288 F. Supp. 2d 482, 483 (S.D.N.Y. 2003) (citations and internal quotation

marks omitted). "The standard of granting such a motion is strict, and

reconsideration will generally be denied unless the moving party can point to

controlling decisions or data that the court overlooked-matters, in other words,

that might reasonably be expected to alter the conclusion reached by the court."

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted).

Furthermore, "a motion to reconsider should not be granted where the moving party

Documents

UNITED STATES COURT OF APPEALS FOR THE SECOND …online.wsj.com/public/resources/documents/2015_0922_knife.pdfDec 16, 2011 · will not be able to do so). Plaintiffs Copeland and