Case 1:11-cv-03918-KBF-RLE Document 162 Filed 05/17/16 Page 1 of 6

DISTRICT ATTORNEY
COUNTY OF NEW YORK
ONE HOGAN PLACE
New York, N. Y. 10013
(212) 335-9000

CYRUS R. VANCE, JR.

DISTRICT ATTORNEY

May 17, 2016

BY ECF
Honorable Katherine B. Forrest
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Copeland, Perez and Native Leather v. Vance, et. al.,
11 Civ. 3918 (KBF)
Dear Judge Forrest:
On behalf of District Attorney Vance and the City of New York, I write
in opposition to the motion of the Legal Aid Society to file an amicus brief in support
of plaintiffs constitutional challenge to the gravity knife statute. This eleventh-hour
brief which advances novel allegations and legal arguments not raised by plaintiffs in
the past five years of litigation fails to meet the standard for participation as amici
and exemplifies the term sandbagging.
I.

Applicable standard

District Courts have broad discretion in deciding whether to accept

amicus briefs. Jamaica Hosp. Med. Ctr., Inc. v. United Health Group, Inc., 584 F. Supp. 2d
489, 497 (E.D.N.Y. 2008). [T]he circumstances under which an amicus brief is
considered desirable are limited. Id. Specifically, an amicus brief should be allowed
only where a party is not represented competently or is not represented at all . . . or
when the amicus has unique information or perspective that can help the court beyond
the help that the lawyers for the parties are able to provide. Otherwise, leave to file an
amicus curiae brief should be denied. Hartford Fire Ins. Co. v. Expeditors Intl of Wash.,
2012 U.S. Dist. LEXIS 176865, at *4-5 n.1 (S.D.N.Y. Dec. 11, 2012) (Forrest, J.)
Amicus participation goes beyond its proper role if the submission is
used to present wholly new issues not raised by the parties. Citizens Against Casino
Gambling v. Kempthorne, 471 F. Supp. 2d 295, 311 (W.D.N.Y. 2007). [T]he named
parties should always remain in control, with the amicus merely responding to the
1

Case 1:11-cv-03918-KBF-RLE Document 162 Filed 05/17/16 Page 2 of 6

issues presented by the parties. An amicus cannot initiate, create, extend, or enlarge
issues. Lehman XS Trust, Series 2006-GP2 v. Greenpoint Mortg. Funding, Inc., 2014 U.S.
Dist. LEXIS 11179, at *7 (S.D.N.Y. Jan. 23, 2014) (quotation omitted). Further, an
amicus which argues facts are less favorable because they are not correctable on appeal.
Yip v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J.1985), affd, 782 F.2d 1033 (3d Cir.), cert.
denied, 476 U.S. 1141, 106 S.Ct. 2248 (1986). See also, U.S. v. Alkaabi, 223 F.Supp.2d
583, 592 n. 16 (D.N.J.2002) (citing to Yip at 1568) (At the trial level, where issues of
fact as well as law predominate, the aid of amicus curiae may be less appropriate than
at the appellate level, where such participation has become standard procedure.)
The role of an amicus curiae is to provide the Court with neutral
assistance in analyzing the issues before it. In re Baldwin-United Corp., 607 F. Supp.
1312, 1327 (S.D.N.Y. 1985). While it is not required that amici be totally disinterested,
the partiality of an amicus is a factor to consider in deciding whether to allow
participation. Picard v. Greiff, 797 F. Supp. 2d 451, 452 (S.D.N.Y. 2011) (denying leave
to file an amicus brief where the prospective amici was involved in an adversarial
proceeding involving one of the parties pending in another court and therefore could
not provide a neutral analysis).
II.

The Legal Aid Societys motion to file should be denied as their

proposed brief does not meet the standard for participation as an
amici

The Legal Aid Society offers no explanation as to why its belated amicus
brief filed three-and-a-half years after the close of fact discovery, three-and-a-half
years after the briefing of dispositive motions, nearly two years after the briefing of
plaintiffs appeal from this Courts resolution of the same, two months after the filing
of plaintiffs trial brief, and a full month after the filing of defendants opposition trial
brief is appropriate in light of the foregoing standards. To consider the new factual
allegations and legal theories raised for the first time by the Legal Aid Society and their
alleged, non-party clients, who were never identified during discovery and are barely
identifiable in the brief, will result in immense and irreparable prejudice to the District
Attorneys Office, to the City, and to the residents of New York County who rely on
defendants enforcement of the gravity knife statute.
A.

The Legal Aid Society impermissibly raises wholly new

allegations and arguments

As the proposed submission makes clear, the alleged facts and

arguments raised by the Legal Aid Society have no relation to the actual plaintiffs in
this case. The brief and video performances submitted by the Legal Aid Society
propose to introduce cherry-picked alleged tales of several clients - out of hundreds who were supposedly prosecuted for possessing a prohibited gravity knife. These
stories were not raised in the pleadings and defendants have had no opportunity to
2

Case 1:11-cv-03918-KBF-RLE Document 162 Filed 05/17/16 Page 3 of 6

verify or develop the factual background of the claims. To consider the alleged arrests
and prosecutions of the individuals referenced by the Legal Aid Society as part of the
plaintiffs vagueness challenge to the gravity knife statute would defeat the requirement
that a federal Court, in exercising its jurisdiction, resolve a case and controversy
between the actual parties.
The Legal Aid Society also raises theories of liability that have never been
raised by plaintiffs in the five years of litigation: namely, the alleged harshness of the
sentencing scheme (which, defendants note, is authorized under New York state law)
and the alleged violation of due process imposed by the strict liability of the gravity
knife law. Plaintiffs have not raised the sentencing parameters attendant to the gravity
knife law in general or, in specific, the District Attorneys advocacy under those
sentencing statutes.
With respect to the theory that the gravity knife statute is unfair because
it applies strict liability, this very issue was recently resolved against the Legal Aid
Societys position by a unanimous decision of the New York Court of Appeals. People
v. Parrilla, 2016 NY LEXIS 1082 (May 3, 2016). In Parrilla, the defendant argued that
the People should be required to establish that he knew his knife met the statutory
definition of a gravity knife. The Court specifically held: that [I]t is not necessary that
defendants know that the knife meets the technical definition of a gravity knife under
Penal Law 265.00(5). Id. Notably, the Legal Aid Society did not seek leave to file
as an amici before the Parrilla Court of Appeals. Instead, it asks a federal court to strike
down a duly enacted statute that has been upheld, time and time again, in the state
courts tasked with enforcing it. The Legal Aid Societys unwillingness to offer the same
arguments it proposes here to the Parrilla Court demonstrates that it is acting as an
advocate for its own interests here, which is not the proper function of an amicus
curiae.
B. Stripped of its new and unverified allegations, the Legal Aid Societys
proposed brief rehashes arguments already raised by plaintiffs while
slandering the District Attorneys Office and the officers of the New
York City Police Department.
Where not advancing novel alleged facts and theories, the Legal Aid
Societys proposed brief regurgitates the same arguments that plaintiffs have asserted
since the inception of this litigation in 2011. Like plaintiffs, the Legal Aid Society
argues the knives plaintiffs possessed were not intended to be prohibited by the 1958
enactment of New Yorks gravity knife law; that New York Courts determination that
the wrist flick test constitutes centrifugal force and the Defendants application of
that law is unconstitutionally vague; and that otherwise law abiding individuals cannot
be expected to anticipate the athletic prowess of police officers in flicking open a
knife. These are the mainstays of plaintiffs arguments, which have been thoroughly
and repeatedly argued in their Trial Brief. To the extent the amicus brief repeats these
3

Case 1:11-cv-03918-KBF-RLE Document 162 Filed 05/17/16 Page 4 of 6

same points, it is clearly unnecessary and an improper use of amicus participation. See,
e.g., Goldberg v. City of Philadelphia, 1994 U.S. Dist. LEXIS 9392 (E.D. Pa. 2015) (If the
court feels that the parties are adequately represented so that amicus participation is
neither necessary nor helpful, it should deny amicus curiae participation).
In its proposed brief the Legal Aid Society also offers arguments that
plaintiffs are raising or could have raised - but neglected to do so by telling stories
and characterizing the District Attorney as a villain. This is not the proper function
of amicus curiae. See S.E.C. v. Bear, Stearns & Co. Inc., 2003 U.S. Dist. LEXIS 14611, at
*16 (S.D.N.Y. Aug. 25, 2003) (rejecting proposed amici who did not have an unique
point of view that [was] not available to the Court from the parties in the underlying
action); United States v. El-Gabrowny, 844 F. Supp. 955 at 957 (S.D.N.Y. 1994) (denying
motion to file amicus brief where proposed submissions did not offer any argument
or point of view not available from the parties themselves). Supplementing the
arguments of one party over another is not the proper purpose of an amicus brief, and
is sufficient grounds for the Court to deny the Legal Aid Societys motion. See Bear,
Stearns & Co. Inc., 2003 U.S. Dist. LEXIS 14611, at *16 (denying motion to appear as
amici curiae because [c]onferring amicus status on such partisan interests is
inappropriate).
Particularly in this context, where the Legal Aid Societys interests are
directly aligned with plaintiffs interests, it should not be allowed to buttress weak or
omitted arguments by plaintiffs through the guise that it is simply operating as a friend
of the court. Such conduct abuses the amicus curiae function and severely prejudices
the District Attorney and the City, who have litigated this suit for the past five years through motions, appeal, discovery and trial, and do not have a similar opportunity to
raise new arguments or expand the factual record. Nor is such expansion necessary.
The question before the Court is the constitutionality of the gravity knife statute as
applied to the functioning of certain knives. It is a question of law that can be
determined by the Court without the Legal Aid Society muddying the issues with
extraneous name-calling and grandstanding.
By seeking to add and rely upon new arguments and untested allegations
in support of plaintiffs arguments, the Legal Aid Society is clearly acting as an advocate
for plaintiffs.1 The Court should not give credence to an amicus submission where the
applicant is not seeking to advise the Court, but rather to reinforce the position of a
party with whom it shares an interest. See, e.g., United States v. Ahmed, 788 F. Supp. 196,
198 n.1 (S.D.N.Y. 1992) (rejecting amicus submission of an association of defense
attorneys in support of defendants motion for dismissal since defendants interests
were adequately represented and proposed brief would not aid courts evaluation of
That interest is further evidenced by the fact that after e-filing, the Legal Aid Society
e-mailed a courtesy copy of its proposed brief and notice of motion to the parties counsel and
to former plaintiff Doug Ritter, the Chairman of Knife Rights, who is funding this litigation.
1

Case 1:11-cv-03918-KBF-RLE Document 162 Filed 05/17/16 Page 5 of 6

the motion). Courts have routinely disapproved of the use of the amicus process for
pure advocacy purposes, and have rejected filings where the proposed amicus, [r]ather
than seeking to come as a friend of the court and provide the court with an objective,
dispassionate, neutral discussion of the issues, . . . come as an advocate for one side . .
. . United States v. Gotti, 755 F. Supp. 1157, 1159 (E.D.N.Y. 1991) (rejecting amicus
application by civil rights organization which came as an advocate for the criminal
defendant and did not provide an objective, dispassionate, neutral discussion of issues).
In doing so, [a prospective amicus] does the court, itself, and fundamental notions of
fairness a disservice. Id.; see also Bear, Stearns & Co., 2003 U.S. Dist. LEXIS 14611, at
*17, Goldberg v. City of Philadelphia, No. 91-7575, 1994 U.S. Dist. LEXIS 9392, at *3
(E.D. Pa. 2015) (When an organization seeking leave to appear as amicus curiae is
perceived to be an advocate for one of the parties to the litigation, to appear amicus
curiae should be denied), Long Island Soundkeeper Fund v. New York Athletic Club of the
City of New York, 1995 U.S. Dist. LEXIS 8176 at *3 (S.D.N.Y. June 12, 1995) (denying
proposed amicus where the applicant appear[ed] to have its own particular interests
in the outcome of the litigation).
Because the Legal Aid Society is plainly not a neutral party here, and in
actuality, is patently partisan and aligned with plaintiffs, a so-called amicus
contribution of this kind is unnecessary, unwarranted, and highly prejudicial to the
District Attorney and the City, and should therefore be denied.
C.

The belatedness of the Legal Aid Societys brief creates

intolerable prejudice to the defense and no explanation is offered
to justify the delay

The Legal Aid Society also offers no explanation for its delay in filing. This
lawsuit was filed nearly five years ago. All but one of the alleged incidents raised in the
proposed brief are either not recent or not identified. For example, the allegations for
Richard Neal stem from June 2008, Richard Gonzalez from April, 2011 and Jesus
Rodriguez from August. 2011. Alternatively, no dates are provided for the incidents
involving Walt, James, Jerome, and Mustafa. By its own admission, the Legal
Aid Society has been engaged in defending gravity knife prosecutions for decades.
Further, its website touts the fight against the gravity knife law and makes clear that the
Legal Aid Society has been aware of this litigation since at least October 8, 2014.
http://www.legalaid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsf
orchangesinthegravityknifelaw.aspx. Nevertheless, the Legal Aid Society waited years,
until after the filing of dispositive briefs, the close of discovery, and after the
presentation of evidence at trial before seeking to have a voice in this litigation.
As with the other stages of litigation, the decision to grant leave to
proceed as amici at the trial court level is discretionary, and such a motion should not
be granted unless the court deems the proffered information timely and useful, Yip
5

Case 1:11-cv-03918-KBF-RLE Document 162 Filed 05/17/16 Page 6 of 6

v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J.1985), affd, 782 F.2d 1033 (3d Cir.), cert. denied,
476 U.S. 1141, 106 S.Ct. 2248 (1986) (quoting 3A C.J.S. Amicus Curiae 3 (1973)). The
Legal Aid Societys brief is neither. Moreover, [a]t the trial level, where issues of fact
as well as law predominate, the aid of amicus curiae may be less appropriate than at the
appellate level where such participation has become standard procedure. Yip, 606
F.Supp. at 1568.
While leave to file an amicus brief is within Your Honors discretion, the
district courts look to the Federal Rules of Appellate Procedure for guidance. Lehman,
supra, 2014 U.S. Dist. LEXIS 11179 at *5. F.R.A.P. 29(e) provides that the time to file
an amicus brief is no later than 7 days after the principal brief of the party being
supported is filed. The Legal Aid Societys request to file an amicus brief two months
after plaintiffs filed their opening trial brief is decidedly late even under the Federal
Rules of Appellate Procedure and should be denied as such.
In sum, this Court has given the parties ample opportunity to argue their
respective positions, in dispositive motions and now at trial with opening briefs,
opposition briefs, reply and sur-reply briefs. Plaintiffs are represented by competent
counsel. There is no reason for an amicus submission. Furthermore, the Legal Aid
Societys newly raised arguments and untested allegations do not present unique
information or perspective that can help the court beyond the help that the lawyers for
the parties are able to provide, Lehman XS Trust, Series 2006-GP2 v. Greenpoint Mortgage
Funding, Inc., 2014 U.S. Dist. LEXIS 11179, at *8 (S.D.N.Y. Jan. 23, 2014).
For the forgoing reasons, the District Attorney and the City
respectfully request that the Court deny the Legal Aid Societys motion to file its
proposed amicus brief on behalf of plaintiffs.
Respectfully submitted,
/s
Patricia J. Bailey
Assistant District Attorney
Louise Lippin
Assistant Corporation Counsel