Date: 09-22-2015

Case Style: Knife Rights, Inc. v. Cyrus Vance, Jr.

Case Number: 13-4840-cv

Judge: Reena Raggi

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Daniel L. Schmutter

Defendant's Attorney: Benjamin E. Rosenburg for Cyrus R. Vance, Jr.

Michael J. Pastor for the City of New York

Description: In this action for declaratory and injunctive relief, plaintiffs John
Copeland, Pedro Perez, Native Leather, Ltd., Knife Rights, Inc., and Knife Rights
Foundation, Inc., invoke 42 U.S.C. § 1983 to charge the City of New York and the
New York County District Attorney, Cyrus R. Vance, Jr., with applying New
York law criminalizing the possession of “gravity knives,” see N.Y. Penal Law
§§ 265.00(5), 265.01(1), in such a way as to render the proscription
unconstitutionally vague, thereby depriving plaintiffs of the notice mandated by
due process. The United States District Court for the Southern District of New
York (Katherine B. Forrest, Judge), dismissed plaintiffs’ amended complaint for
lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), concluding that no
plaintiff had demonstrated standing to pursue that challenge. See Knife Rights,
Inc. v. Vance, No. 11 Civ. 3918 (KBF), 2013 WL 5434610 (S.D.N.Y. Sept. 25, 2013).
Plaintiffs now appeal, arguing that they each satisfactorily alleged the imminent
4
threat of harm necessary to demonstrate the injury in fact required for
constitutional standing.
For the reasons stated herein, we conclude that plaintiffs Copeland, Perez,
and Native Leather adequately allege standing, but that the organizational
plaintiffs, Knife Rights and Knife Rights Foundation, do not. Accordingly, we
affirm the judgment of dismissal as to Knife Rights and Knife Rights Foundation,
but we vacate the judgment against Copeland, Perez, and Native Leather and
remand the case to the district court for further proceedings as to these three
plaintiffs consistent with this opinion.
I. Background
A. Statutory Framework
Under New York law, criminal possession of a weapon in the fourth
degree is a class A misdemeanor punishable by no more than one year in prison.
See N.Y. Penal Law §§ 70.15(1), 265.01(1). Switchblades and gravity knives are
among the weapons specifically proscribed by § 265.01(1). New York defines a
“switchblade knife” 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
5
knife.” Id. § 265.00(4). It 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, spring, lever or other device.” Id. § 265.00(5). The New York
Court of Appeals has explained that the latter definition distinguishes gravity
knives from “certain folding knives that cannot readily be opened by gravity or
centrifugal force.” People v. Dreyden, 15 N.Y.3d 100, 104, 905 N.Y.S.2d 542, 544
(2010).
Plaintiffs assert that, consistent with these definitions and judicial gloss,
§ 265.01(1) has been enforced without controversy for decades by reference to the
“essential attribute of both switchblade and gravity knives,” i.e., the lack of any
“mechanical resistance (or bias) against opening from the closed position that
must be overcome in order for [these knives] to open.” Am. Compl. ¶ 2.
Plaintiffs complain that, more recently, defendants have construed the definition
of “gravity knife” in such a way as to render the statutory prohibition
unconstitutionally vague. Specifically, defendants have applied the law to any
folding knife—even ones “designed to resist opening from the closed position”
6
(“common folding knives”1)—if it would be possible for some person to open the
knife by means of a wrist‐flicking motion. Id. ¶ 3.2 Plaintiffs argue that a person
in possession of a common folding knife, particularly one that the person himself
is unable to open with a wrist flick, cannot be expected to know that his
possession is criminal because some as‐yet‐unidentified person may be able to
flick open the knife. On this appeal, we do not consider the merits of plaintiffs’
vagueness claim, but only their standing to pursue it. Because past enforcement
efforts against certain plaintiffs are relevant to their standing, we proceed to
summarize those efforts.
1 While “common folding knives” is not a statutorily defined term, the parties
have employed it in their papers to reference knives “designed to resist opening
from the closed position.” Am. Compl. ¶ 3; see Appellee (Vance) Br. 6 n.4. We
do likewise in this opinion.
2 The parties dispute whether wrist flicking necessarily implicates centrifugal
force, compare Appellee (Vance) Br. 44–47, with Appellants’ Reply Br. 24, a
question that we need not answer on this appeal.
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B. Defendants’ Enforcement Efforts Against Plaintiffs
1. Copeland and Perez
Plaintiffs John Copeland and Pedro Perez are, respectively, an artist and an
art dealer. Both had routinely carried folding knives for use in their work until
2010 when such knife possession resulted in each man separately being charged
with violating § 265.01(1). Perez was so charged on April 15, 2010, when New
York City police officers observed him at a Manhattan subway station with a
metal clip protruding from his pocket. Inquiry revealed the clip to be part of a
Gerber brand common folding knife that Perez had purchased approximately
two years earlier at Tent & Trail, an outdoor supply store in Manhattan.
Plaintiffs assert that the charging officers were unable themselves to flick open
Perez’s knife, but based on the possibility that someone could do so, they issued
Perez a desk appearance ticket charging him with unlawful possession of a
gravity knife.
Some months later, on October 10, 2010, Copeland was similarly charged
when police, observing a metal clip in his pocket, found him in possession of a
Benchmade brand common folding knife, purchased the year before at Paragon
8
Sports in Manhattan. Plaintiffs assert that on two occasions before October 2010,
Copeland had shown his Benchmade knife to New York City police officers and
inquired as to the legality of its possession. On both occasions, the officers were
unable to flick open the knife and so returned it to Copeland, advising that its
possession was legal. By contrast, the officers who stopped Copeland in October
2010 were able to open the knife by “grasping the knife’s handle and forcefully
‘flicking’ the knife body downwards” and, thus, issued Copeland a desk
appearance ticket for violating § 265.01(1). Am. Compl. ¶ 30.
Perez and Copeland each retained counsel to defend the § 265.01(1)
charges by disputing that the devices in their possession were proscribed gravity
knives. The question was never resolved because, in both cases, the parties
agreed to adjournments in contemplation of dismissal, a non‐merits disposition.
See N.Y. Crim. Proc. Law § 170.55(2); Hollender v. Trump Vill. Coop., Inc., 58
N.Y.2d 420, 423, 461 N.Y.S.2d 765, 766 (1983) (explaining that adjournment in
contemplation of dismissal is “neither a conviction nor an acquittal”).
In this action, Perez and Copeland assert their continuing interest in
carrying common folding knives in New York City but maintain that they do not
9
do so for fear of again being charged with a § 265.01(1) violation, given their
inability to determine which common folding knives defendants might deem
prohibited by that law.
2. Native Leather
Plaintiff Native Leather operates a retail store in Manhattan, where it sells,
among other things, common folding knives. Plaintiffs allege that in June 2010,
defendant Vance initiated enforcement actions against numerous New York City
knife retailers, claiming that an undercover investigation had revealed the
retailers’ sale of proscribed gravity knives. Many retailers resolved these actions
by agreeing to pay fines, totaling an aggregate of nearly $1.9 million; to
surrender various folding knives in their inventories; and to refrain from future
sales of gravity knives. Seven retailers, including Native Leather, did so by
entering into deferred prosecution agreements.
Under its agreement, Native Leather not only paid a monetary fine and
forfeited certain folding knives, but also adopted a compliance program
approved by the district attorney’s office and pledged “to permanently cease and
desist” from selling any prohibited gravity knives in the future. J.A. 251.
10
Pursuant to its compliance program, Native Leather has a designated employee
test each common folding knife in its inventory by making several attempts to
open the knife by means of a wrist‐flicking action. Native Leather only sells
common folding knives that the designated employee cannot flick open on even
a single attempt.
Although most provisions of Native Leather’s deferred prosecution
agreement have now expired, it asserts that it maintains its compliance program
“to avoid running afoul” of defendants’ interpretation of the statutory
prohibition of gravity knives. Am. Compl. ¶ 45. At the same time, it professes
concern that its program cannot assure that “some other person” will not be able
to flick open one of its knives despite its own employee’s inability to do so. Id.
Thus, it complains that, while it wishes to sell a wide assortment of common
folding knives, it does not do so because it cannot confidently determine which
such knives defendants will deem “gravity knives” in violation of § 265.01(1).
3. Knife Rights and Knife Rights Foundation
Knife Rights is a membership advocacy organization that “promotes
legislative and legal action, as well as research, publishing, and advocacy, in
11
support of people’s ability to carry and use knives and tools.” Id. ¶ 10. Knife
Rights also seeks to “vindicate the legal rights of individuals and businesses who
are unable to act on their own behalf in light of the costs and time commitments
involved in litigation.” Id. ¶ 47. Knife Rights asserts that defendants have
charged or threatened to charge certain of its members with violations of
§ 265.01(1). As a result, some (unidentified) members have refrained from
carrying or selling folding knives for fear of being so charged.
Knife Rights Foundation is a nonprofit organization intended “to promote
education and research regarding knives and edged tools.” Id. ¶ 13. Knife
Rights Foundation alleges that it “has paid or contributed towards . . . some of
the monetary expenses that Knife Rights has incurred . . . in consequence of
Defendants’ threatened enforcement” of § 265.01(1), which “expenditures have
come at the expense of other organizational priorities of Knife Rights
Foundation.” Id. ¶ 52.
C. Prior Proceedings
On June 9, 2011, plaintiffs Copeland, Perez, and Knife Rights initiated this
action, seeking (1) a declaration that N.Y. Penal Law §§ 265.00(5) and 265.01(1)
12
are unconstitutionally vague as applied to common folding knives, and (2) an
injunction preventing defendants’ continued enforcement of these statutes as to
such knives.3 Defendants moved for dismissal pursuant to, inter alia, Fed. R.
Civ. P. 12(b)(1) and (c), whereupon plaintiffs successfully sought leave to amend.
This resulted, among other things, in the addition of Native Leather and Knife
Rights Foundation as named plaintiffs.
Defendants thereafter renewed their motion for dismissal, arguing that the
court lacked subject matter jurisdiction because no plaintiff alleged the injury in
fact necessary to satisfy Article III’s case‐or‐controversy requirement. The
district court agreed and entered judgment for defendants on September 25,
2013. As to plaintiffs Copeland and Perez, the district court determined that any
injury was “completely hypothetical” and “highly speculative,” because neither
3 Plaintiffs also sought declaratory and injunctive relief with respect to the
application of the switchblade prohibition of §§ 265.00(4) and 265.01(1) to
common folding knives designed to resist opening from their folded and closed
positions. On appeal, however, plaintiffs challenge dismissal only by reference
to the § 265.00(5) gravity knife ban. See Appellants’ Br. 3 (“Switchblade knives
are not at issue here.”). Accordingly, plaintiffs appear to have abandoned their
challenge to the switchblade ban, and we do not consider it here. See Hughes v.
Bricklayers & Allied Craftworkers Local No. 45, 386 F.3d 101, 104 n.1 (2d Cir.
2004).
13
had alleged “the make and model of knife that he wants to carry or specifically
describe[d] it.” Knife Rights, Inc. v. Vance, 2013 WL 5434610, at *4 (internal
quotation marks omitted). As to Native Leather, the district court stated that the
store’s “desire to skirt the edges of the law does not create an injury sufficient for
Article III standing.” Id. The district court further concluded that Knife Rights
and Knife Rights Foundation’s expenditure of resources to avoid “an entirely
hypothetical possibility that the government’s policies will injure their members”
did not confer standing because the threat of harm to the organizations and their
members was too speculative. Id. at *5.
Plaintiffs sought reconsideration, arguing that the district court had failed
to consider their request for leave to amend and providing the court with a
proposed second amended complaint indicating that, but for the alleged
vagueness in defendants’ application of § 265.01(1), plaintiff Copeland would
purchase, possess, and use another “Benchmade model 10210 folding knife,” and
that plaintiff Perez would purchase, possess, and use another “Gerber model
05785 folding knife.” Proposed Second Am. Compl. ¶¶ 54, 59. The district court
denied reconsideration, noting, among other things, that amendment would
14
unduly prejudice defendants because discovery had been completed and
summary judgment had already been awarded in their favor.
This timely appeal followed.
II. Discussion
A. Dismissal for Lack of Subject Matter Jurisdiction
1. The Jurisdictional Requirement of Standing
To ensure that persons are not denied liberty without due process, the law
requires that criminal offenses be defined “with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.” Kolender v.
Lawson, 461 U.S. 352, 357 (1983); accord Johnson v. United States, 135 S. Ct. 2551,
2556–57 (2015). A statute that fails to do so is deemed unconstitutionally vague.
Plaintiffs here sue for a judicial declaration that N.Y. Penal Law §§ 265.00(5) and
265.01(1) are unconstitutionally vague as applied to common folding knives, and
for an order enjoining the future application of these statutes to such knives.
A court’s jurisdiction to hear such a vagueness challenge is limited to an
actual case or controversy. See U.S. Const., art. III, § 2. “The doctrine of standing
15
gives meaning to these constitutional limits,” Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2341 (2014), by requiring a plaintiff to “allege[] such a personal
stake in the outcome of the controversy as to warrant his invocation of federalcourt
jurisdiction and to justify exercise of the court’s remedial powers on his
behalf,” Warth v. Seldin, 422 U.S. 490, 498–99 (1975) (internal quotation marks
omitted). To establish Article III standing, then, a plaintiff must show “(1) an
‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the
conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed
by a favorable decision.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2341
(alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
61 (1992)).
The district court here concluded that plaintiffs failed to carry their
standing burden at the first element. We review plaintiffs’ challenge to this legal
conclusion de novo, borrowing from the familiar Rule 12(b)(6) standard, which
instructs us to construe the pleadings in plaintiffs’ favor, accepting as true all
material factual allegations contained therein. See W.R. Huff Asset Mgmt. Co. v.
Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008).
16
For an alleged injury to support constitutional standing, it “must be
‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2341 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. at 560 (other quotation marks omitted)).
The Supreme Court has described the imminence requirement differently in
different contexts, without specifying whether the descriptions are synonymous
or distinct. See, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 & n.5
(2013) (employing “certainly impending” standard while acknowledging cases
referencing “substantial risk” standard, but declining to address possible
distinction); accord Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2341 (“An
allegation of future injury may suffice if the threatened injury is ‘certainly
impending,’ or there is a ‘substantial risk’ that the harm will occur.” (quoting
Clapper)); see also Hedges v. Obama, 724 F.3d 170, 195–96 (2d Cir. 2013).
Where, as here, certain plaintiffs assert injury from threatened prosecution,
the Supreme Court has instructed that imminence does “not require a plaintiff to
expose himself to liability before bringing suit to challenge the basis for the
threat—for example, the constitutionality of a law threatened to be enforced.”
17
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007) (collecting
cases); accord Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2342; see generally
Steffel v. Thompson, 415 U.S. 452, 480 (1974) (Rehnquist, J., concurring)
(observing that “declaratory judgment procedure is an alternative to pursuit of
the arguably illegal activity”). Rather, in the context of pre‐enforcement
challenges to criminal statutes, imminent injury can be established by plausible
allegations that a plaintiff “‘inten[ds] to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by . . . statute, and there
exists a credible threat of prosecution thereunder.’” Susan B. Anthony List v.
Driehaus, 134 S. Ct. at 2342 (quoting Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979)).4 The identification of a credible threat sufficient
4 The Supreme Court has not limited standing to pursue pre‐enforcement
challenges only to plaintiffs intending conduct arguably affected with a
constitutional interest. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. at 122–
25, 128–31 (recognizing standing to challenge patent validity based on clear
threat of action for breach of license or infringement). Nevertheless, plaintiffs’
intended conduct here is affected by such an interest—specifically, the due
process interest in having notice of conduct curtailed by criminal statutes. While
many pre‐enforcement challenges have implicated the First Amendment right of
free expression, see, e.g., Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2342–44;
Holder v. Humanitarian Law Project, 561 U.S. 1, 15–16 (2010); Babbitt v. United
18
to satisfy the imminence requirement of injury in fact necessarily depends on the
particular circumstances at issue. A credible threat of prosecution, however,
cannot rest on fears that are “‘imaginary or speculative.’” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. at 298 (quoting Younger v. Harris, 401 U.S. 37, 42
(1971)). Nor is it evident where plaintiffs “do not claim that they have ever been
threatened with prosecution, that a prosecution is likely, or even that a
prosecution is remotely possible.” Id. at 298–99 (internal quotation marks
omitted). That is hardly this case, at least not as to plaintiffs Native Leather,
Copeland, and Perez.
2. Native Leather Demonstrates a Credible Threat of Imminent
Prosecution for Intended Conduct
Native Leather asserts that it has in the past sold, and wishes again to offer
for sale, a variety of common folding knives that it does not think violate
Farm Workers Nat’l Union, 442 U.S. at 297–301; Ellis v. Dyson, 421 U.S. 426, 430,
433–35 (1975); Steffel v. Thompson, 415 U.S. at 459, many of these same cases
have also presented the due process interest in avoiding vague criminal
prohibitions, see Humanitarian Law Project, 561 U.S. at 7, 10–11, 18–25; Babbitt,
442 U.S. at 295–96, 303; Ellis, 421 U.S. at 428, 430, 433–35. The Court has drawn
no distinction between these constitutional interests in pronouncing a credible
threat of prosecution sufficient to establish standing, nor have defendants urged
us to do so here.
19
§ 265.01(1) because they have a mechanical bias in favor of the closed position
that must be overcome in order to open them. It does not do so, however,
because it cannot confidently determine which such knives defendants will deem
proscribed gravity knives, and it does not wish to risk prosecution. This
professed fear of prosecution is hardly conjectural or hypothetical, given that
defendant Vance recently identified Native Leather as a § 265.01(1) violator and
pursued enforcement action against it. In Susan B. Anthony List v. Driehaus, the
Supreme Court located a “substantial” threat of future prosecution in a “history
of past enforcement.” 134 S. Ct. at 2345. The past enforcement there included a
determination that probable cause supported a complaint that petitioners had
made statements violative of the state law whose constitutionality they wished to
challenge. See id. at 2339. The threat is even more substantial here because in
Susan B. Anthony List, the complaint was withdrawn, see id. at 2340, while here,
Native Leather was officially charged, paid fines, surrendered property in
purported violation of law, implemented a prosecution‐approved compliance
program, and entered into a deferred prosecution agreement that expressly
threatened future charges if its terms were not satisfied. See generally Steffel v.
20
Thompson, 415 U.S. at 456 & n.4 (recognizing imminent threat where parties
stipulated that arrest warrants would be sought if plaintiff engaged in specified
conduct); see also Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392 (1988)
(recognizing imminent threat where challenged statute would require plaintiffs
“to take significant and costly compliance measures or risk criminal
prosecution”). One of these terms required Native Leather “to permanently
cease and desist” from selling knives prohibited by § 265.01(1), J.A. 251, the very
statute that plaintiffs maintain defendants apply in a way that creates
constitutionally impermissible vagueness. While the agreement had expired in
all other respects approximately nine months before Native Leather joined this
lawsuit, the totality of these circumstances demonstrates a credible threat of
imminent prosecution if Vance were to determine that Native Leather was again
offering for sale common folding knives that he deemed proscribed gravity
knives. Certainly, defendants do not disavow such enforcement. See, e.g., Susan
B. Anthony List v. Driehaus, 134 S. Ct. at 2345 (citing absence of disavowal as
further support of credible threat). Thus, Native Leather is not required either to
pursue “arguably illegal activity,” Steffel v. Thompson, 415 U.S. at 480
21
(Rehnquist, J., concurring), or to expose itself to criminal liability before bringing
suit to challenge “the constitutionality of [the] law threatened to be enforced,”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. at 129.
City of Los Angeles v. Lyons, 461 U.S. 95 (1983), is not to the contrary.
There, a plaintiff who had been placed in a chokehold by police effecting his
arrest sued for declaratory and injunctive relief from an alleged municipal policy
of excessive force in arrest. See id. at 97–98, 110. The Supreme Court concluded
that plaintiff lacked standing to challenge the alleged policy because he failed to
establish (1) an imminent threat that he would again be stopped by police,
particularly as he expressed no intent to violate any law in the future; or (2) the
blanket application of chokeholds by arresting Los Angeles police officers. See
id. at 105–06. By contrast, here Native Leather has expressed its intent (but for
the fear of prosecution) to engage in the very conduct that prompted defendants’
prior enforcement action. See Susan B. Anthony List v. Driehaus, 134 S. Ct. at
2346 (identifying imminent harm where plaintiff alleged intent to engage in same
22
speech that was subject of prior enforcement proceeding).5 Moreover, while no
defendant in Lyons threatened plaintiff with future chokeholds, defendants here
expressly threatened to prosecute Native Leather for § 265.01(1) violations, as
determined by Vance, if Native Leather violated any term of its deferred
prosecution agreement, including the pledge permanently to cease and desist
from selling gravity knives. See Steffel v. Thompson, 415 U.S. at 456 & n.4.6
5 While petitioners in Susan B. Anthony List pleaded the specific statements they
intended to make in future election cycles to support their professed fear of
future prosecution, see 134 S. Ct. at 2343, we do not understand such specificity
to be essential to standing, particularly where, as here, a statute is challenged for
unconstitutional vagueness, see, e.g., Holder v. Humanitarian Law Project, 561
U.S. at 15–16 (concluding that plaintiffs who professed intent to provide
designated terrorist groups with “similar support” to that previously provided—
but who did not specifically describe future support—had standing to pursue
vagueness challenge to prohibiting statute). Thus, we reject the district court’s
determination that in this case—where certain plaintiffs have already been
subjected to enforcement actions for violating a statute whose application they
submit does not allow them to determine what is proscribed—these plaintiffs
must specifically identify, by make and model, the common folding knives they
wish to sell or possess to demonstrate standing.
6 Lyons might also be distinguished for another reason: it did not involve a
vagueness challenge. In Lyons, plaintiff’s claim focused on the actions of law
enforcement and, in particular, the possibility that an officer might use
unconstitutional force in a future encounter. By contrast, plaintiffs’ claims here
23
Accordingly, to the extent the district court concluded that Native Leather
failed to satisfy the injury‐in‐fact element of standing, we vacate its judgment in
favor of defendants and remand for further proceedings.
3. Copeland and Perez Demonstrate a Credible Threat of
Imminent Prosecution for Intended Conduct
Copeland and Perez assert that they have in the past carried, and wish
again to carry, common folding knives, but do not do so because they cannot
confidently determine which such knives defendants will deem gravity knives
prohibited by § 265.01(1), and they do not wish to risk prosecution. Their
professed fear is also not conjectural or hypothetical. Each man has already been
charged with a § 265.01(1) violation for carrying a common folding knife. Each
was obliged to retain counsel to secure an adjournment in contemplation of
dismissal. See Susan B. Anthony List v. Driehaus, 134 S. Ct. at 2345. To be sure,
that non‐merits disposition, unlike the deferred prosecution agreement
applicable to Native Leather, did not expressly threaten future prosecution if
Copeland or Perez were again to carry the knives prompting charges against
focus on the actions and reasonable apprehensions of private actors, who seek to
engage in conduct whose legality they cannot reasonably determine.
24
them. But certainly nowhere in the record of this litigation have defendants
disavowed that they would criminally charge Copeland and Perez again in the
same circumstances. See id. at 2345; Holder v. Humanitarian Law Project, 561
U.S. at 16 (recognizing imminent threat where government had “not argued . . .
that plaintiffs will not be prosecuted if they do what they say they wish to do”);
see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. at 302 (noting that
plaintiffs were “not without some reason in fearing prosecution” where state had
“not disavowed any intention of invoking the criminal penalty provision”).
Indeed, the contrary can be inferred from defendant Vance’s defense of the wristflick
test supporting these plaintiffs’ past arrests. See Appellee (Vance) Br. 44–
47.7
Thus, Copeland and Perez are not similarly situated to the plaintiff in City
of Los Angeles v. Lyons, 461 U.S. 95, because (1) they affirmatively wish to
7 Vance makes this point in urging this court to conclude as a matter of law that
N.Y. Penal Law §§ 265.00(4)–(5) and 265.01(1) are not void for vagueness as
applied to common folding knives designed to resist opening from their folded
and closed position. See Appellee (Vance) Br. 41–55. We decline to rule on this
matter in advance of the district court, which has not yet had an opportunity to
construe the statutory text or to review the record evidence developed in
discovery as to defendants’ application of the statute.
25
engage in the very conduct that resulted in defendants charging them with
violations of § 265.01(1); and (2) the record indicates that, upon becoming aware
of any such conduct by plaintiffs, defendants would again charge them with
violations of law.8
Because these circumstances demonstrate a credible threat of prosecution,
neither Copeland nor Perez is required to pursue arguably illegal activity or to
expose himself to criminal liability before bringing suit to challenge the
constitutionality of the law threatened to be enforced. See MedImmune, Inc. v.
Genentech, Inc., 549 U.S. at 129; Steffel v. Thompson, 415 U.S. at 480 (Rehnquist,
8 In Lyons, the Supreme Court emphasized that plaintiff had nowhere asserted
that Los Angeles police always employed a chokehold in citizen encounters, or
that the city authorized such conduct. See City of Los Angeles v. Lyons, 461 U.S.
at 106. Thus, it was “no more than conjecture to suggest that in every instance of
a traffic stop, arrest, or other encounter between the police and a citizen, the
police will act unconstitutionally and inflict injury without provocation or legal
excuse.” Id. at 108. By contrast, the crux of plaintiffs’ claim here is that
defendants generally “apply the State laws prohibiting . . . gravity knives to
include Common Folding Knives that—in their view—can be ‘readily’ opened
with a ‘wrist‐flicking’ motion,” with the result that “NYPD officers arrest and
charge individuals found carrying such Common Folding Knives with Criminal
Possession of a Weapon in the Fourth Degree, and [Vance] prosecutes the alleged
offenses.” Am. Compl. ¶ 3; see id. ¶¶ 15–16 (alleging that defendants “continue
to enforce” and “threaten to enforce” gravity knife prohibition).
26
J., concurring). To the extent the district court concluded that these plaintiffs
failed to satisfy the injury‐in‐fact element of standing, we vacate its judgment in
favor of defendants and remand for further proceedings.
4. Knife Rights and Knife Rights Foundation
Fail To Demonstrate Standing
We reach a different conclusion as to the standing of organizational
plaintiffs Knife Rights and Knife Rights Foundation.
Insofar as these plaintiffs sued on behalf of their members, “[i]t is the law
of this Circuit that an organization does not have standing to assert the rights of
its members in a case brought under 42 U.S.C. § 1983.” Nnebe v. Daus, 644 F.3d
147, 156 (2d Cir. 2011) (collecting cases). Plaintiffs argue that Nnebe and the
precedent on which it relies conflict with Warth v. Seldin, 422 U.S. at 511. But as
Nnebe observed, this court has reaffirmed its rule as to organizational plaintiffs’
representative standing even after Warth v. Seldin; thus, individual panels are
bound “by the implicit determination of prior panels that the rule survives
Warth ‘until such time as [our prior decisions] are overruled either by an en banc
panel of our Court or by the Supreme Court.’” Nnebe v. Daus, 644 F.3d at 156
27
n.5 (alteration in original) (quoting United States v. Wilkerson, 361 F.3d 717, 732
(2d Cir. 2004)).9
Insofar as the organizational plaintiffs sue on their own behalf, they must
independently satisfy the requirements of Article III standing. See Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982) (holding that organization’s
9 Our precedent appears to have framed “standing” in the context of
organizational claims under § 1983 more as a statutory than as a constitutional
question. See League of Women Voters v. Nassau Cnty. Bd. of Supervisors, 737
F.2d 155, 160 (2d Cir. 1984) (“This Circuit has restricted organizational standing
under § 1983 by interpreting the rights it secures to be personal to those
purportedly injured.”); Aguayo v. Richardson, 473 F.2d 1090, 1099 (2d Cir. 1973)
(Friendly, C.J.) (framing question as “whether the welfare organizations have
standing under the civil rights statute, 42 U.S.C. § 1983, and its jurisdictional
implementation, 28 U.S.C. § 1343(3),” and concluding that neither language of
statute nor its history “suggests that an organization may sue under the Civil
Rights Act for the violation of rights of members”). As such, our adherence to
this precedent in concluding that Knife Rights and Knife Rights Foundation lack
“standing” might be understood to speak to the plausibility of their
representational claim under § 1983, rather than to our own power under Article
III. See generally Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1387 & n.4 (2014) (observing that whether plaintiff comes within the “zone
of interests” protected by statute “requires us to determine, using traditional
tools of statutory interpretation, whether a legislatively conferred cause of action
encompasses a particular plaintiff’s claim,” but that “the absence of a valid (as
opposed to arguable) cause of action does not implicate subject‐matter
jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the
case” (emphasis in original) (internal quotation marks omitted)).
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standing to sue on its own behalf requires same inquiry as in case of individual:
“Has the plaintiff alleged such a personal stake in the outcome of the controversy
as to warrant his invocation of federal‐court jurisdiction?” (internal quotation
marks omitted)); accord Nnebe v. Daus, 644 F.3d at 156. Knife Rights and Knife
Rights Foundation attempt to carry this burden by citing the expenses they
incurred in opposing defendants’ application of § 265.01(1). Even assuming that
such expenditures “perceptibly impaired” these organizations’ activities, they at
best demonstrate past injury. Havens Realty Corp. v. Coleman, 455 U.S. at 378–
79 (concluding that nonprofit organization established standing in its own right
to pursue Fair Housing Act challenge to apartment owner’s racial steering
practices, where organization’s “ability to provide counseling and referral
services” to its clients had been “perceptibly impaired” by need to “devote
significant resources to identify and counteract” defendants’ challenged practices
(internal quotation marks omitted)). Such injury might admit standing to sue for
compensatory damages. See id. But it is not an injury that can be redressed
through the prospective declaratory and injunctive relief sought in this action.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“Because
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respondent alleges only past infractions of [law], and not a continuing . . . or . . .
future violation, injunctive relief will not redress its injury.”); see also City of Los
Angeles v. Lyons, 461 U.S. at 112–13 (recognizing standing to pursue damages
remedy for past injury, but denying standing to seek injunctive relief absent
imminent threat of future harm).
In their reply brief, plaintiffs briefly suggest that injunctive relief would
redress future injury by precluding defendants from applying § 265.01(1) in a
way that will prompt these organizations to incur opposition expenses. Even if
these organizations’ voluntarily incurred future expenses could satisfy the
injury‐in‐fact element of standing, cf. Clapper v. Amnesty Int’l USA, 133 S. Ct. at
1155 (holding that plaintiffs “cannot manufacture standing by incurring costs in
anticipation of non‐imminent harm”), such expenses would not be incurred
because Knife Rights and Knife Rights Foundation themselves face any imminent
threat of prosecution under § 265.01(1). Thus, because these plaintiffs do not
allege a credible threat that they will be prosecuted under § 265.01(1), see Holder
v. Humanitarian Law Project, 561 U.S. at 15, they must show that both
anticipated expenditures and ensuing harm to their organizations’ activities are
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“certainly impending,” Clapper v. Amnesty Int’l USA, 133 S. Ct. at 1147. They
have not even attempted to make such a showing.
Accordingly, we affirm that part of the judgment dismissing Knife Rights
and Knife Rights Foundation for lack of standing.
B. Denial of Leave To Amend
Plaintiffs contend that, even if their first amended complaint fails to
demonstrate standing, the district court erred in denying their request to file a
second amended complaint. Federal Rule of Civil Procedure 15(a)(2) states that a
party may amend its pleadings more than once “only with the opposing party’s
written consent or the court’s leave.” At the same time, the rule instructs that
courts should “freely give” leave to amend “when justice so requires.” Id. This
comports with the law’s “strong preference for resolving disputes on the merits.”
Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (internal quotation
marks omitted). At the same time, it affords district courts considerable
discretion to deny amendment when there has been “‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by
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virtue of allowance of the amendment, [or] futility of amendment.’” Ruotolo v.
City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)); see AEP Energy Servs. Gas Holding Co. v. Bank of Am.,
N.A., 626 F.3d 699, 725 (2d Cir. 2010).
Where, as here, parties appeal the denial of leave to amend, we review
only for abuse of discretion, see Williams v. Citigroup Inc., 659 F.3d at 212, which
ordinarily we will not identify absent an error of law, a clearly erroneous
assessment of the facts, or a decision outside the available range of permitted
choices, see Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013).
Plaintiffs contend that the district court’s determination that amendment
would be “especially prejudicial” to defendants was infected by factual error as
reflected in statements that summary judgment motions had already been filed
and granted, and that discovery had concluded. Knife Rights, Inc. v. Vance, No.
11 Civ. 3918 (KBF), 2013 WL 6182921, at *2–3 (S.D.N.Y. Nov. 20, 2013). Upon
review of the record, it appears that no summary judgment motions had been
filed or decided in the case, and that the deposition of plaintiffs’ proposed expert
remained to be taken. Nevertheless, we do not think the district court’s
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misstatements on these points reflect a clearly erroneous assessment of the
relevant facts. The court had, indeed, granted judgment in favor of defendants,
albeit on motions to dismiss rather than on motions for summary judgment.
Moreover, the misstatement was of no significance because the proposed
amendment sought to supplement plaintiffs’ pleadings as to standing, the very
issue on which dismissal had been granted. Thus, there is no reason to think that
the district court was referencing any other judgment than the one it had in fact
granted.
As for the outstanding defense deposition of plaintiffs’ expert—whose
opinions plaintiffs presumably knew—plaintiffs do not assert that the
proceeding would have made any difference to the challenged dismissal
determination. Thus, the misstatement as to the status of discovery was not
material to the denial of leave to amend.
Plaintiffs further fault the district court’s determination that amendment
would have prejudiced defendants by requiring further discovery. We identify
no error in this conclusion as it pertained to plaintiffs Knife Rights and Knife
Rights Foundation. To cite a single example, the fact that the second amended
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complaint alleges injury to both organizations’ activities, whereas the first
amended complaint alleged such injury only to Knife Rights Foundation,
supports the district court’s additional discovery determination.
As to Native Leather, Copeland, and Perez, the additional discovery
challenge appears moot as plaintiffs sought leave to amend to avoid dismissal of
their first amended complaint, and we here vacate that dismissal as to these three
plaintiffs. Nevertheless, we note that the proposed amendment identifies the
makes and models of the common folding knives that Copeland and Perez assert
they wish to possess—matters that may be relevant to the further pursuit of this
action, but that would not appear to require further discovery. Thus, we do not
foreclose the district court on remand from taking such steps—whether by way
of amendment, a simple interrogatory response, or otherwise—as it may deem
warranted to make these knife models part of the record, so as to facilitate
orderly future proceedings.
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III. Conclusion
To summarize, we conclude as follows:
1. Plaintiffs Native Leather, Copeland, and Perez have standing to
challenge defendants’ application of N.Y. Penal Law §§ 265.00(5) and 265.01(1)
because each has expressed a present intent to possess such knives (but for
defendants’ challenged enforcement actions) and each has demonstrated a
credible threat of prosecution based on defendants’ (a) recent enforcement
actions against them, (b) express threat to prosecute Native Leather further
under the terms of a deferred prosecution agreement, and (c) continued defense
of the wrist‐flick test that allegedly prompted plaintiffs’ past violation charges.
2. Our precedent precludes Knife Rights and Knife Rights Foundation
from asserting standing on behalf of their members under 42 U.S.C. § 1983. Nor
can these organizational plaintiffs demonstrate standing to sue on their own
behalf based on claimed injury to their activities from expenditures diverted to
oppose defendants’ actions. Such past injuries cannot be redressed by the
declaratory and injunctive relief sought in this action, and plaintiffs fail to
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demonstrate that any future expenditures and attending injuries are certainly
impending.
3. The district court did not abuse its discretion in denying plaintiffs’
motion for leave to amend their complaint a second time to address defects in
standing.

Outcome: Accordingly, the district court’s judgment of dismissal is AFFIRMED as to
Knife Rights and Knife Rights Foundation, and VACATED as to Native Leather,
Copeland, and Perez. The case is REMANDED as to these three plaintiffs for
further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

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