good morning it may please the court this entire case boils down to one critical question how can a person make the determination that a given folding knife is legal that is not a gra knife the answer is they can't no one can ever make that determination and the reason is that a person cannot no matter how many times they try to apply the functional test no person can predict if they cannot open the an as applied challenge not official challenge but the key here is that it cannot constitutionally be applied to common folding knives with bias towards closure precisely because of that feature it's the bias towards closure that creates the  variability in the functional test and it's the variability that makes the test indeterminate so a person when a person applies the functional test to a given knife and it does not open they can draw no conclusion about whether that knife is legal or not because think as apply challenges in the in the vagueness context don't we meet usually mean as applied to the vagueness challenger's personally not as applied to a class of objects  regulated by a statute it is as applied to the plaintiffs and anyone similarly situated because if it's true for mr copeland it's true for everybody it's the nature of the claim so if the reason  applied of course is because it doesn't literally go to every possible application of the statute and so it can't be facial it's just a very broad as applied challenge and so i know it may feel kind of like it's a facial challenge because it applies so to so many people but if if the claim is true for copeland if the claim is true for prez if the claim is true for that of whether it's also true for everybody there is no one who can possess a folding knife and ever know that it's legal and that's the critical thing because mean you're saying it says this is not a facial challenge but doesn't i mean the evidence in the record is mostly perhaps exclusively applied to common falling eyes is not correct correct correct i mean but that doesn't mean that was not functionally a facial challenge it's well again we believe we brief this it doesn't matter whether we call it a facial challenge or whether we call it as applied challenge we know from the record that the the statute can constitutionally be applied to true gravity knives so technically it's not facial because the entire statute is not facially invalid but it's but if we call if we say that it's like a facial challenge because it applies to almost every knife that anybody carries or practically a really every night that people carry because we really don't have any reason to believe that people carry german paratrooper knives it doesn't it doesn't affect the validity of the claim in other words if  we call we say that this is essentially a facial challenge to the application of the of the statute to common folding knives that's fine too i have no problem with calling it that way but the the the issue is it is it is it is unconstitutional in every instance in which it would be applied to a common folding knife with bias towards closure it doesn't matter whether we call that facial because it's to every application of that concept or whether we ca applied because technically under the under the rule it is it doesn't literally apply to every possible application of the statute i don't think that affects the outcome of the case either way the claim plainly valid because there's literally no way to know whether you are in if you're engaging in legal hand and that's important not only does due process require that you can identify illegal conduct you also have to be able to identify legal conduct and so that's where the district court erred because the government and the district court only focused on well when the knife opens it's a gravity knife what's the problem the problem is not when it opens the problem is when it doesn't open and that was illustrated beautifully by the cross examination of dan rather at the june sixteenth hearing i asked him i want to go into a store or let's see john copeland wants to go into a store and buy a knife i mean that's the allegation of the complaint he wants to he want to get arrested again so he wants to know what knife can he possess without getting arrested so when i asked mr rather what does a person do he said well you should apply the functional test i said great so suppose it doesn't open which is very common with some knives and some people he says i said is that a gravity knife he said well now you should try it again i said fine let's say mr copeland or mr prison who ever tries the functional test a second time and it does he can't get it open using that the wrist flick test is that a gravity knife and he said no i said ok now that person whether it's koeppen present anybody else takes one step out the door encounters a police officer and that police officer takes the knife and is able to flick it open using the functional test is it a grab a knife and he said yes now i mean that's a eilish in that the same knife within two minutes could start out not a gravity knife and then suddenly it's a grab a knife when you walk out the door because the police officer could open it but the individual couldn't that's the problem that every single person in new york faces koeppen faces their problem pereira's native leather and everyone everyone in this courtroom everyone in this panel everyone in this in the state of new york no one can ever walk into a store whether it's of leather home depot paragon and identify a legal knife and satisfy themselves that they would not be subject to arrest and prosecution that's why the application of the gravity knife law to common folding  with by a switch closure is unconstitutionally void for vagueness and that's the knife that those those are the kinds of knives that millions of people carry and that's undisputed in the record millions of folks carry them in new york and throughout the united states  open which are able to be opened through the application of of gravity or some typical force and what they called pocket knives which can't be opened through the application of gravity or strip of force the problem is there's should be able to buy a gravity knife from a store since they are the purveyors that that's well interesting that's what that's what the legal aid amicus says they wonder why why the knives are still being sold we had a problem for example in paragon the when the d a when the d a was dealing with the retailers they allowed paragon to still keep even though even though certain items would fail the functional to file this lawsuit rather than focus on the facts of their own arrests and prosecutions plaintiffs rely heavily in their briefs and rely heavily in their argument here on hypothetical enforcements of the statute against hypothetical knives what about the case the instance of mr copeland who was told by two officers in two thousand and nine that his knife was legal but  was arrested and charged a year later for possessing the same life or your honor there's key differences between the actual facts of mr copeland's case and the hypothetical that mr schneider was just speaking about when he was presenting his case so what happened to mr hope and was he purchased his knife and he brought it to officers to confirm that it was legal and where they apply the risler test which actually shows his preexisting knowledge that that's the test that we used to identify those knives and then he proceeded to use the knife admittedly for a year to cut canvas in connection with his employment and never made any effort to tighten the tension on the blade which directly impacts the ability of the blade to open in response to the  and if the panel has your view the video of plaintiff's demonstration you can see this perfectly in the final knife that they demonstrate where doug ritter the chairman of knife writes uses a screwdriver that plaintiffs expert policy moto testified actually usually comes with the knife when you purchase it and mr ritter used the screwdriver to adjust the tension on the blade and he said that it would i think i believe i'm quoting it would be perfectly usable for the user to open the blade with his thumb but you still could the district court after hearing evidence about the effect that wear and tear can have and i think after seeing plaintiff's demonstration where it was so clear how you can adjust the blade found that it was exactly that wear and tear that created the difference in the functionality of the knife of an attempt to adjust the copeland knife after it had been found to be a gravity knife to see whether that adjustment would make it no longer a gravity after his arrest no your honor there's the he denies ever even attempting to fix the knife in any way so plaintiffs have been put in any evidence that he he made any effort whatsoever to correct his knife there demonstration confirms that you can purchase a folding knife or that's fully possible however he doesn't claim to have made that effort at all you know going back here on or i think the district court in this case correctly found that plaintiffs can't rely on these hypotheticals to satisfy their burden of proof unless they're raising facial challenge and in the absence of a first amendment or other constitutional right that's implicated by the statute which they have not identified here the proper starting point is always going to be as applied to their actual arrest and prosecution so i think if you take the elements of an as applied challenge which we have to start with and you look first at the first element which is notice were they on notice that possessions of knives like these were illegal under the statute and in the district attorney's brief there is citations to ten to fifteen preexisting court decisions that describe how this statute has been enforced to folding nine halves since its inception by the wrist flick pass so undoubtedly there was notice that this is the test that we use that this test is in force against folding knives and not just the german paratrooper knives that plaintiff's expert claim is of the true gravity knife and when you look at the second element of an as applied challenge your honour's which is standard so law enforcement there is testimony in the record from a prosecutor from my office with thirty years experience from the season to police officers who were involved in the arrests of that the risk flick test is the exclusive task it's used to identify these knives and that's the test that's been used since the inception of the statute so i think they on the actual record evidence that the district court had looking at the and looking at the experiences of carol walsh the district court correctly found that as applied to the facts of plaintiff's case they could not show either a lack of notice that the statute would be enforced against folding knives in the exact manner that it was forced against them and they could they say that the law is mainly in force with respect to gravity knives against minorities and not against major retailers sure judge i mean i think they use the word that they use in their brief as undesirables they claim that my office uses the statute to enforce it against undesirables but i think the plaintiffs in this case prove that point wrong you know we have to purveyors of fine arts and we have the owner of a retail space in the most expensive neighborhood in manhattan so to the extent that's the argument of a legal aid society it's belied by the pedigree of the plaintiffs in this case who have no prior record and i think looking having reviewed the that their problem truly is with the fact that there is a bump up in the in the penal law such that if a defendant is arrested for possession of a gravity knife that has prior felony convictions that they're eligible for felony indictment for possession of that gravity and i think that has nothing to do with the clarity of the language of the statute itself which is what we're here to talk about in fact i think also if you look at the specific facts of those plaintiffs or excuse me those legal aid clients none of them claim that it took more than one attempt to open their knife and actually two of those arrests predate the election of the district attorney which plaintiffs are now trying to tell the court was when this novel wrist flick test was invented and we started enforcing the statute against a folding knife that's plainly false according to even their own  please the court the district court's findings of fact resolve the constitutional questions before the court and the policy concerns implicated by this case now command the attention of the new york legislature and governor who are tasked with balancing the concerns those concerns against the real and continuing public safety threats of grabbing knives discourse that affirm the dismissal of the vagueness challenge and allow the elected officials of new york to strike the appropriate balance i want to start with a question about the ask you if i could have how can an average member of the public determine that a falling knife is legal well that this goes to the district courts finding a fact which is that the risk flick test produces consistent results from one person to another who's performing it so the statute necessarily puts the responsibility on an i phone or to perform that test on the on his knife periodic lead to make sure that that knife it does not open with a f the wrist and if it does usage if if usage can affect whether or not it can be opened can you tell if you've tried it any number of times and it hasn't opened how can you tell whether the next flick is going to open it well there's no there's no evidence that a knife changes instantaneously over time it can loosen three used in these plaintiffs here to testify that they use their knives regularly so they had ample opportunity to notice if the knife was loosening also many unfolding knives have an adjustable screw at the fulcrum which can be tightened as my colleague mentioned to make the knife more resistant to opening so if a person becomes aware that the knife is becoming loose they can tighten it when the districts finding that that test produces consistent results means that that someone who intends to avoid criminal liability and stay within the bounds of the statute has ample ability to do that and to know if they're knife is prohibited or lawful and in the in the record at least as i understand it and correct me if i'm misunderstanding system the district attorney rather testified that a person who is aware of the gravity knife law and who satisfies herself that she cannot flick open her knife can still be prosecuted under the statute well that's true  again how is that but i don't think he was suggesting that that's something that happens and again we don't have any big players his burden was to show an instance in which that happened and they've never done that but the point was that if a police officer inspects the knife they can flip it open then he's permitted to charge that as as it is criminal possession i think there are other remedies for someone who actually presents that situation but none of these plaintiffs do someone who did diligently and then a moment later walk buys it in the store tests in the walks out the other hypothetical would have a defense in a criminal prosecution either that that the knife didn't open or for an ordinary person there's always an assumption of the ordinary person is the relevant person for the task would have an application would have an as applied biggest challenge in that criminal prosecution or in this court on haiti is or can move to dismiss in the interest of justice there are remedies for that person who is not the plaintiffs in this case and your honor asked about the facial versus as applied challenge i don't think it's essential to resolve that question how plaintiffs characterize their claim because if they're making a facial challenge as to a category of knives then they have to show that the statute can't be constitutionally applied and any set of circumstances and the district court found that it can constitutionally be applied to these plaintiffs because they're not opened with the first flick of the wrist when tested the persons who did the test had no particular skill strength or dexterity that's the court's finding history courts finding and that they never tested their knives beforehand so as applied to them they had the ability to know that the knives they possessed were unlawful when they were when they were arrested and they didn't so  because they can constitutionally be applied to them the statute is not facially unlawful and just to return briefly to both the question about the legal aid amicus brief and to your honest question just puller about the purchase in stores the evidence is clear that that the district attorney is targeting retailers as well as individuals for possessing unlawful grabbing knives in the purpose clearly is to staunch the flow of these dangerous items and they go into the stores and attempt the wrist flick and stores the district attorney's does yes which means that anyone who purchases a store a knife that looks like a gravity knife is safe because the inventory has been inspected no they should also test the knife themselves when they go home take it out of the box if it's in a package they should test it because they are also responsible for that but the point is the goal is is not simply to the burden of this responsibility doesn't fall purely on the shoulders of persons who possess the knives the district attorney is in is committed to it's to making sure that to the extent possible these knives don't enter circulation and therefore that there's less of a risk of someone running afoul of the prohibition without knowing so but it necessarily has to be a test applied at the moment the knife is inspected because as the evidence shows these knives can change over time so even a knife that's been inspected by the retailer appropriately sold because it's not a gravity knife it 's still the burden falls on the individual to make sure that that doesn't become a grabby knife over time thank you very  much if you want to bring us the mindset of evidence you couldn't get it through the guards yes that's right judge the government continues to urge this court to make the same error that the district court made this case in this time around and in the first appeal which is to to pretend that this case is about the prior arrests and convictions it is not this is a forward looking case and as applied challenge to the statute because the plaintiffs a to make the determination as to how to engage unlawful conduct the district that made the same mistake in the original in the first appeal which was on the motion to dismiss for lack of standing this court reversed because this court recognized that this is a follower looking claim not a backward looking claim there is no case law that says that as applied challenges can only be as to prior conduct and in this court's reversal on the standing appeal recognized that that is in fact accurate that there is no such requirement now there is i mean we saw that multiple times even dan rather in his testimony indicated that when they were testing the native leather knives sometimes a knife would open for one person and not another we know from when the crawl representative during the during the compliance program when the cole representative the monitor mr gebauer and his people came to native leather carol walsh testified in this is undisputed that there were some knives that she could not open that they could so there's there's no question that the wrist flick test is inconsistent and remember there was there evidence of it was there evidence of the attempts to open open these knobs which  in which at first they wouldn't open and then with another another person they would open and then a repeated attempt by the first person who could not open it to be ok so first person can't open it second person can open it goes bad do you have to do is there any evidence as to going back to the first person to see whether that person could then open it no but what we do have is six different examples of inconsistency from person to person so we have copeland and the finding by the district court that the reason it opened a year later was because of usage over time has no basis in the record that's an input clear error and that should be reversed there was nothing in the record to indicate that that that was where over time in the suggestion that he should have tightened it there's nothing to indicate that that had an adjustment screw to the undisputed record shows that most knives do not have adjustment screws so there's to cope and could not have tightened it but most importantly a person's testing their own knife does them no good so when counsel said well a person has an obligation to test their knife periodically doesn't do them any good as we know it makes no difference how many times they test it they can test one hundred times if the police officer can can can open the knife using the functional test they can be arrested and prosecuted and that's where the law is unconstitutional be clear about one thing before you start on your own as i understanding it you are not claiming that the statute would be invalid if applied to certain knives that they wish to own you are as understanding and arguing that this statute cannot be constitutionally applied to any common cause folding knife carried by anyone with a bias towards closure correct including the plaintiffs but also everybody that that's correct i think and i think i understood your question that what you're arguing for is really to disable the whole statute this as applied to common folding ons with a bias towards closure there's no background story is the right that statute is principally and perhaps only enforced against