AP Photo: John Locher

The future of gravity knives in New York state will now be in the hands of Gov. Andrew Cuomo after state lawmakers gave final approval to a bill striking the weapon from a section of the state’s penal code Monday.

The legislation is intended to eliminate the option for members of law enforcement to charge someone for simply carrying what could be considered a gravity knife under current state law but is used commonly in a number of trades.

The bill was approved unanimously Monday by the state Senate, where it’s sponsored by Sen. Diane Savino, D-Staten Island.

“You can walk into any hardware store, you can buy one of these tools, but it is illegal to walk out of the door with it,” Savino said. “It makes absolutely no sense.”

Prosecutors and other members of law enforcement have been accused of using the law to target low-income people of color with jobs that require them to carry such a knife, which is identified by a so-called ‘flick test.’ That’s when police flick their wrist while holding the knife to see if it opens without additional effort. But the test is subject to abuse, Savino said.

“You’d have the situation where you’d have someone stop someone and see [a knife] on their tool belt. Then the cops would try to flick test,” Savino said. “You can do it 10 or 20 times, and once you got it open, that’s it—you’re guilty and you get arrested.”

Her bill, which has already passed the Assembly, would remove gravity knives from sections of the state penal law that can be used to charge someone with possessing certain weapons. That way, prosecutors can’t charge someone with carrying something that may meet the definition of a gravity knife under state law.

That definition was labeled by a federal judge as unconstitutionally vague in a decision nearly two months ago. Senior Judge Paul Crotty for the Southern District said the statute presented a “high risk of arbitrary enforcement,” partly because of the flick test Savino mentioned.

“Criminal culpability here is tied to a vague definition and functional test that could have outcomes depending on who is performing it and when,” Crotty wrote.

Assemblyman Dan Quart, D-Manhattan, sponsors the bill in the Assembly. He said their legislation compliments Crotty’s decision because, rather than focusing on the definition of a gravity knife, they’re trying to remove the option for members of law enforcement to charge someone for possessing the object. That means there won’t be any more flick tests.

“The recent decision by Judge Crotty suggests the approach we took was the right one because [he] didn’t focus on a definition, he focused on the flick test,” Quart said. “But he also focused on the ambiguity that any reasonable person walking down the street could not know whether he or she was carrying a lawful or unlawful work tool or not. So, by taking the two words out of the statute, we solve the problem Judge Crotty was concerned with, in my mind.”

The bill now heads to Cuomo, who vetoed a previous version of the legislation that attempted to address the matter in a different way.

That bill, also sponsored by Quart and Savino, would have changed the definition of a gravity knife in state law to avoid more prosecutions. Cuomo wrote at the time that the new definition would be more confusing for law enforcement, which could be counterproductive to the goal of the bill.

“Any person who goes into a store and purchases the product can be subsequently arrested and prosecuted for mere possession,” Cuomo said. “This construct is absurd and must be addressed, but this bill unfortunately does not address it.”

Savino said she expects Cuomo to sign the legislation, particularly because Crotty’s decision affirmed what they’ve been arguing with the bill: that the current statute is not lawful and must be changed.

“We now have a definitive decision from federal court that says our statute is unconstitutional because of deliberate vagueness,” Savino said. “So we’re taking it one step further than we have in previous sessions and taking the term out of the law.”

Actual gravity knives were developed and used during World War II by German forces to cut themselves loose from parachutes after landing. Those aren’t the same weapons as today’s knives, which are commonly used by people in several industries, like construction or even theater, Quart said.

“Those aren’t being sold, or aren’t in typical consumption in New York City and New York State and that’s why we wrote it out and took the words ‘gravity knife’ out of the statute,” Quart said.

Manhattan District Attorney Cyrus Vance has been a target of the legislation’s supporters, who claim that his office exploited the current law in favor of prosecution. Savino said the statute has had long-felt consequences for people who didn’t know they could spend time in jail for simply owning a tool for work.

“It had a real life implications for people being arrested. If you couldn’t make bail you could be held in Rikers for the weekend, you could lose your job, you’d have to appear ic orut, you’d have to hire a lawyer, and for what?” Savino said. “Because you were in possession of something that New York state law said was legal to buy, but not legal to own.”

A spokesman for Cuomo said his office is reviewing the legislation but has not yet taken a position on the bill.

READ MORE:

Citing Risk of ‘Arbitrary and Discriminatory Enforcement,’ Federal Judge Finds Gravity Knife Ban Unconstitutionally Vague

Foes of ‘Gravity Knife’ Ban Ask for SCOTUS Review on Vagueness Grounds

Second Circuit Upholds New York State ‘Gravity Knife’ Ban