The Volokh Conspiracy
New York court sets aside “gravity knife” prosecution
By Eugene Volokh July 25 at 11:31 AM
From People v. Trowells (N.Y. trial ct. July 11, 2014, published in the N.Y.L.J. today) (some paragraph breaks added):
Defendant, Anthony Trowells, is charged, inter alia, with Criminal Possession of a Weapon in the Third Degree (PL §265.02) [elevated to a felony because of a prior conviction for Possession of a Forged Instrument in the Second Degree -EV] ….
It is alleged that on or about June 12, 2013 at approximately 10:05 a.m., the defendant was walking in the vicinity of the Major Deegan Expressway and Jerome Avenue in Bronx County, when he was observed by Detective Keith Ames of the Bronx Narcotics Squad to have a gravity knife clipped to his belt. The People claim the knife was in plain view.
The defendant claims that Det. Ames attempted to engage him in a drug-related conversation, and when he refused to respond and attempted to walk away from him, Det. Ames then physically stopped the defendant, conducted a search of defendant’s person and recovered the gravity knife….
[New York Civil Criminal Procedure Law] §210.40 permits dismissal of an indictment where, for a variety of reasons, the merits are not at issue and the interest of justice would be served by the termination of prosecution. In determine whether granting or denying the motion to dismiss would serve justice, the Court may consider the existence of any compelling circumstance…. In evaluating whether there exists a compelling basis for dismissal, CPL §210.40 sets out ten factors a court may consider. The ten factors are as follows:
(a) the seriousness of the crime;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact on the public interest of a dismissal of the indictment;
(h) the impact of a dismissal on the safety or welfare of the community;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
… Courts have made it clear that no one of these ten factors is dispositive, however, taken as a whole, they serve to balance the interests between the individual and the state. Thus, this Court must balance all the factors, as well as any other relevant factors in deciding defendant’s motion. In so doing, defendant’s motion to dismiss is granted….
In 1958, the Legislature enacted Penal Law §265.01 criminalizing the mere possession of a gravity knife, i.e., deeming it a “per se” weapon. The statute was in response to what was then characterized as great public concern over the rampant criminal use of gravity knives by New York City juveniles. Penal Law §265.00 defines a gravity knife 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, lever, spring or other device.” Centrifugal force is not defined in the Penal Law, however, it is well-settled law that releasing the blade from the handle of the knife by flicking the wrist constitutes centrifugal force.
Notwithstanding their illegality, gravity knives are widely manufactured and sold across the country in hardware and outdoor stores under brand names such as Clip-it, Husky Utility Folding Knives and other brands. They are sold for and are used for purely legitimate purposes. Despite “locking” safety features, many can be “flicked” open with the appropriate amount of force. Thus, these knives are routinely carried by many New Yorkers for legitimate purposes ignorant of the fact that they may be in violation of the law and face a potential automatic one-year jail sentence.
The law has been criticized by many as resulting in the prosecution of many law-abiding New York City citizens and visitors including artists, construction workers, electricians and others who carry gravity knives for work and other lawful endeavors (see David B. Kopel et al., Knives and the Second Amendment, 47 U Mich JL Reform 167, 210-211 ; Ian Weinstein, Note, Adjudication of Minor Offenses In New York City, 31 Fordham Urb LJ 1157, 1167 ). For example in 2011, New York police arrested John Copeland, a painter, for carrying a Benchmade three-inch folding knife in his pocket. The knife was alleged to be a gravity knife. The charges against Copeland were ultimately dismissed after a showing was made that Copeland was an artist and legitimately used the knife to cut canvas for his artwork.
In 2012, Clayton Baltzer was on a field trip to New York City with his fine-arts classmates from Pennsylvania’s Baptist Bible College & Seminary. While riding the subway, a police officer observed what he believed to be a gravity knife clipped to Baltzer’s belt. After many failed attempts to flick open the knife, the officer was finally able to open it and placed Baltzer under arrest for the possession of the gravity knife. Baltzer was convicted of the misdemeanor possession of the gravity knife and was sentenced to pay a fine in the amount of $125 fine and to complete two (2) days of community service.
These and other cases have led to various proposed amendments of the statute. While apparently recognizing the societal shift from rampant criminal use of gravity knives of the 1950s to the widespread, legitimate possession of gravity knives of today, in 2011, the New York Assembly passed Bill 2259A. It called for the amendment of PL §265.01 to the extent that an individual would be guilty of criminal possession of a weapon in the fourth degree when he or she “possesses a gravity knife with the intent to use the same unlawfully against another.” Similarly, in 2013, Senate Bill 5650 proposed to amend PL §265.15 to create an affirmative defense for criminal possession of a gravity knife. The affirmative defense would be that the possessor did not intend to use it unlawfully. Clearly, the Legislature is addressing the need to delineate the criminal possession versus the lawful possession of gravity knives.
While this Court is in no way minimizing the defendant’s actions, it notes that the defendant was not using the gravity knife unlawfully against another, nor was he threatening its use. Rather the gravity knife was found in his possession following a search of his person by law enforcement.
The stop and subsequent search of the defendant’s person is also at issue. It is unclear as to the basis for defendant’s stop as well as subsequent search of his person. The People assert that the gravity knife was in plain view, clipped to defendant’s belt. The defendant asserts that he refused to respond to questions posed to him by the narcotics detective regarding drug activity in the area, and that he attempted to walk away from the detective. This behavior allegedly prompted the physical stop and search by Det. Ames. While this would not rise to serious misconduct on the part of law enforcement, it certainly calls into question the legality of the stop and admissibility of the gravity knife.
Finally, while certainly cognizant of the defendant’s criminal background — nineteen (19) misdemeanor convictions and one (1) felony conviction, the aforementioned and last conviction for Criminal Possession of a Forged Instrument in the Second Degree for which he received a sentence of probation — this Court does not believe that dismissal of the indictment would result in any negative impact on the confidence of the public in the system, or that dismissal of the indictment would have any impact on the safety and welfare of the community.
Based on the aforesaid, defendant’s motion to dismiss the indictment in the furtherance of justice is granted.
Note that the judge here is just applying the specific New York statute — New York Civil Criminal Procedure Law §210.40 — and not saying the prosecution is unconstitutional.
Thanks to Keith Kaplan for the pointer.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.