A gravity knife.

The U.S. Court of Appeals for the Second Circuit again Friday provided prosecutors in New York a victory over the the state’s law on “gravity knives,” which open with little to no effort, such as with a flick of the wrist.

A follow-up appeal by knife owners and a seller who faced enforcement actions in 2010 from Manhattan District Attorney Cyrus Vance Jr.’s office saw the appellate court affirm a January 2017 order by U.S. District Judge Katherine Forrest of the Southern District of New York.

The original suit was brought by the current plaintiffs alongside two knife advocacy groups. After initially being dismissed for lack of standing, the Second Circuit revived the suit absent the advocacy groups.

The plaintiffs saw their remanded suit proceed to a bench trial. Forrest found that the gravity knife law was constitutionally applied.

On appeal, two individuals, who were cited for owning the illegal knives, and a shop that entered into a deferred prosecution agreement with the District Attorney’s Office over selling them argued the state ban was unconstitutionally vague. Specifically, the broader category of folding knives that have been prosecuted under the statute for decades through the “wrist-flick test”—if an officer can flick open the knife, it’s a gravity knife—was inherently indeterminate.

The panel of Chief Judge Robert Katzmann, with Circuit Judges Amalya Kearse and Rosemary Pooler, agreed with Forrest that, despite their arguments, what the appellants were actually seeking was a facial challenge to the state law. This, then, raises the bar, and the challengers have the burden to show the statute is invalid in all respects.

The original plaintiffs argued they didn’t need to show the 2010 enforcement actions were unconstitutional, because they were solely seeking prospective relief to own the knives without fear of future prosecution.

The panel found that the claims, which could extend to protect anyone carrying any similar kind of knife, represented “exceedingly broad relief—indeed, so broad that the plaintiffs concede it could be seen as a species of facial challenge.”

Focusing on the knife seller plaintiff, Native Leather, the panel found that the shop’s claims did not meet the heightened showing. The store was found to have sold numerous illegal knives in 2010 by the DA’s Office. As the seller of such knives, the shop “possessed more resources and sophistication” to know what constituted an illegal knife under the law, significantly limiting its ability to argue insufficient notice, a key test for the notice argument required for vagueness challenge.

Similarly, the complaint over arbitrary enforcement, which the panel said it sympathized with, failed for the same reason the notice argument additionally failed—Native Leather did not show its seized knives responded inconsistently to the wrist-flick test.

The panel, noting “legitimate questions” raised about the implementation of the state statute, urged state lawmakers to return to the issue.

In a statement, Vance spokesman Danny Frost said that, while the DA’s Office and others continue to view gravity knives as dangerous weapons, their recommendations to changes to the law for certain uses have been “ignored by lawmakers, who would prefer to legalize this class of weapons outright.”

“We continue to stand ready to assist in the process of reforming this statute,” Frost said.

Hartman & Winnicki attorney Daniel Schmutter represented the appellants. Reached by phone, he said he and his clients were disappointed by the decision and reviewing their options.

The Legal Aid Society filed an amicus brief on behalf of the appellants. Staff attorney Marty LaFalce said in an interview that the organization was disappointed with the decision.

“We thought that the issue was properly litigated before the court,” LaFalce said. “Our position is that criminal liability for thousands of New Yorkers should never turn on a police officer’s athletic skill.”

He said he was heartened that the panel left open the possibility of a challenge to the law on the “serious and unacceptable” equal enforcement issue.