Cracco v. The City of New York et al

Filing 38

OPINION AND ORDER: The Court DENIES the motion to dismiss. The Clerk is directed to terminate the motion at Docket No. 22. The parties are directed to submit a civil-case management plan by January 8, 2016. (Signed by Judge Paul A. Crotty on 12/9/2015) (cdo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------ - -- ------------ - - X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 9, 2015

JOSEPH CRACCO,
Plaintiff,

14 Civ. 8235 (PAC)

OPINION AND ORDER

-againstTHE CITY OF NEW YORK; Police Officer JONATHAN
CORREA, Shield 7869, Transit Division District 4; Police
Officer JOHN DOE (a fictitious name) ; and CYRUS R.
VANCE JR., in his official capacity as District Attorney
for the County ofNew York,
Defendants.
----------------------------- ------ -- ---- X

HONORABLE PAUL A. CROTTY, U nited States District Judge:
Plaintiff Joseph Cracco was arrested for possession of a gravity knife. He pleaded guilty
to disorderly conduct and paid a fine. Cracco wants to continue carrying the same type of knife
that lead to his arrest, but fears he will be prosecuted again. He seeks declaratory judgment
against Cyrus R. Vance Jr., in his official capacity as New York County District Attorney, that
New York Penal Law§§ 265.00(5) and 265.01(1)-which define the simple possession of a gravity
knife as a misdemeanor-are void for vagueness. T he Court denies District Attorney Vance's
motion to dismiss the claim. 1
I.

Background
On October 18, 2013, Cracco and a coworker were in the subway station at Madison Avenue

and East 42nd Street in Manhattan. (Dkt. 9, ~~ 10, 13.)2 Cracco had clipped his Spyderco Endura 4

1
Cracco also named as defendants the City of New York, Officer Jonathan Correa, and an unnamed officer, alleging
various constitutional and state-law claims. The Court dismissed those claims with prejudice in a previous opinion.
(Dkt. 37 .)
2 The facts are taken from the Amended Complaint, which the Court takes as true in deciding a motion to djsmiss.
For an expanded statement of facts, including the allegations Cracco made in support of his other claims, see the
Court's prior opinion. (Dkt. 37 at 2-4.)

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knife, which he describes as an "ordinary folding knife," to the inside of his pants pocket. (!d. at
, 11.) Cracco is a chef, who was working to open a new restaurant and had been using his knife for
various work-related tasks. (Id.) New York Police Department Officer Jonathan Correa observed the
knife's clip, which was visible on the exterior ofCracco's pocket, and asked him ifhe had a knife in
his pocket. (Id. at , 15.) Cracco answered yes. (Id. at, 16.) Officer Correa then removed the knife
from Cracco 's pocket and attempted to open it by flicking his wrist forcefully. (!d. at,, 16-17.) At
first, the knife failed to open, but after four or five further attempts by Correa, the knife opened and
the blade locked into place. (!d. at, 17.) Officer Correa then arrested Cracco for possession of a
gravity knife. (!d. at , 18.)
Cracco was charged with criminal possession of a weapon in the fourth degree. (!d. at, 28.)
Officer Correa stated in the criminal complaint: "I know that the knife was a gravity knife because I
opened the knife with centrifugal force by flicking my wrist while holding the knife, thereby
releasing the blade which locked in place by means of an automatic device that did not require
manual locking." (!d., Exh. A.) The criminal complaint did not disclose that it took Officer Correa
multiple attempts to open the knife, as Cracco alleges, nor did it reference any training or experience
that f01med Officer Correa's basis for believing the knife was a gravity knife. (Dkt. 9, ,, 25, 29.)
Cracco pleaded guilty to disorderly conduct in full satisfaction of the criminal possession charge.
(!d.)

Cracco wants to continue to own and cany a Spyderco Endura 4 knife. (!d. at, 47.) Although
he believes that type of knife is not a gravity knife under Penal Law§§ 265.00(5) and 265.01(1) and
the New York Court of Appeals' decision in People v. Dre_yden, 15 N.Y.3d (2010), he fears future
prosecution by District Attorney Vance. (!d. at, 44.) Cracco seeks declaratory judgment that Penal
Law§§ 265.00(5) and 265.01(1) are void for vagueness as applied to knives that (1) have a bias
toward closure; (2) have a blade that locks into place when opened; and (3) cannot be readily opened

2

by gravity or centrifugal force. 3 (Jd. at~ 80.) Cf Dreyden, 15 N.Y.3d at 104 ("This definition
distinguishes gravity knives from certain folding knives that cannot readily be opened by gravity or
centrifugal force.")
District Attorney Vance moves to dismiss Cracco's claim, arguing (1) Cracco does not have
standing to seek declaratory judgment; (2) Cracco has an adequate remedy at law; and (3) Cracco 's
claims are barred by his guilty plea. District Attorney Vance also addresses Cracco's claims on the
merits, arguing that Penal Law§§ 265.00(5) and 265.01(1) are not void for vagueness as applied to
knives with the characte1istics identified by Cracco.

II.

Legal Standard
The standard for a motion to dismiss for want of jurisdiction is the same as that for failure

to state a claim. See WR. HuffAsset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d
Cir. 2008). "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, 'to state a claim to relief that is plausible on its face. "' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
deciding a motion to dismiss, the Court construes the pleadings in plaintiffs favor, accepting as
true all material factual allegations. WR. Huff, 549 F.3d at 106.

III.

Non-merits Bars to Suit
a.

Standing

The United States Constitution limits the jurisdiction of the federal comis to "Cases" and
"Controversies." U.S. CONST. art. III, § 2. "One element of the case-or-controversy requirement"
is that a plaintiff must establish that he has standing to sue. Raines v. Byrd, 521 U.S . 811, 818
(1997). To establish standing, a plaintiffmust allege an "injury in fact" that is "fairly trace[able]
to the challenged action of the defendant" and "redressable by a favorable ruling." Lujan v.
3

He contends that a knife cannot be readily opened by gravity or centrifugal force "if it does not open by means of a
' wrist-flick' test on the first attempt to do so." (Dkt. 9 at~ 80.)

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Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992) (citations and internal quotation m arks
omitted).
To support constitutional standing, the alleged injury must be "'concrete and
particularized' and 'actual or imminent, not conjectural or hypothetical.'" Susan B. Anthony List
v. Driehaus, 573 U.S. _ , 134 S. Ct. 2334, 2341 (2014) (some internal quotation marks omitted)
(quoting Lujan, 504 U.S. at 560). Where a plaintiff challenges a criminal statute "an actual arrest,
prosecution, or other enforcement action is not a prerequisite to challenging the law." Id. at 2342.
Instead, imminent injury can be established by plausible allegations that the plaintiff "inten[ ds]
to engage in a course of conduct arguably affected with a constitutional interest, but proscribed
by . .. statue, and there exists a credible threat of prosecution thereunder." Id. (quoting Babbitt v.

United Farm Workers Nat'/ Union, 442 U.S. 289,298 (1979)).
Recently, the Second Circuit addressed whether two individual plaintiffs had sufficiently
alleged injury in fact in circumstances very similar to those presented here. See Knife Rights, Inc.

v. Vance, 802 F.3d 377 (2d. Cir. 2015). The Knife Rights individual plaintiffs, like Cracco,
sought declaratory judgment that Penal Law§§ 265.00(5) and 265.01(1) are void for vagueness, as
applied to "common folding knives." !d. at 380. The Second Circuit held that plaintiffs had
established injury in fact sufficient to confer standing, based on their desire to possess ordinary
folding knives and their fear of future prosecution. I d. at 380-81.
District Attorney Vance attempts to distinguish Knife Rights by characterizing Cracco's
injury as the "threat that he will again be stopped by a police officer who will again falsely arrest
him for possession of a gravity knife and again omit the number of attempts required to open the
knife in the criminal complaint. " (Dkt. 35 at 2.) That description misconstrues the complaint.
Cracco does not seek an injunction to protect him from futurefalse arrest. Cf City ofL.A. v.

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Lyons, 461 U.S. 95, 105-06 (1983). He seeks declaratory judgment that carrying a Spyderco
Endura 4 (or another similar knife) is lawful. Cracco alleges that he has in the past carried, and
wishes to again carry, such a knife. But he does not do so because he fears future prosecution; he
cannot confidently determine which knives District Attorney Vance will deem prohibited gravity
knives. That fear is real; it is not "conjectmal or hypothetical." Lujan, 504 U.S. at 560. Cracco
has already been charged with a violation for carrying the very knife he wishes to carry again.
And District Attorney Vance has not argued that Cracco would not be prosecuted again for that
same conduct. See Knife Rights, 802 F.3d at 380-81.

Knife Rights addressed only whether plaintiffs had established injury in fact. See id. at
381. The Court holds here that Cracco has also satisfied the causation and redressability factors
in the standing analysis. Cracco' s reasonable fear of future prosecution is traceable to the
enforcement decisions of District Attorney Vance. And an order enjoining enforcement of
§§ 265.00(5) and 265.01(1) against knives which have a bias toward closure, a lockable blade,
and the inability to be readily opened by gravity or centrifugal force would provide Cracco the
guidance he needs to confidently select a lawful knife.
District Attorney Vance argues that Cracco has failed to establish redressability because a
favorable judgment "would not prevent a rogue officer from fabricating the operability of a knife
to bring it outside the scope ofthe court's order." (Dkt. 24 at 14.) Again, District Attorney Vance
misconstrues Cracco's complaint by conflating the false-arrest claim (brought under 42 U.S.C. §
1983) with his claim for declaratory judgment. Cracco does not seek declaratory judgment to
protect him from another false arrest; he seeks declaratory judgment that his knife choice is
lawful.

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b.

Equitable Remedy

District Attorney Vance argues that equitable remedy is unwarranted here because
Cracco has adequate remedies at law. (!d. at 15- 17.) Again, District Attorney Vance conflates
Cracco's false-arrest and related tort claims with Cracco's claim for declaratory judgment.
Monetary damages will not remedy the harm Cracco suffers from the threat of future prosecution
arising from his inability to know which knives are prohibited.

c.

Effects of Guilty Plea

District Attorney Vance argues that Cracco 's claims under 42 U.S.C. § 1983 are barred
by his guilty plea. (!d. at 17- 19.) The Court agrees. 4 But that does not affect whether Cracco can
seek declaratory judgment.
IV.

Merits
District Attorney Vance also moves to dismiss the case on the merits, arguing that Penal

Law§§ 265.00(5) and 265.01(1) are not void for vagueness as applied to knives with the
characteristics identified by Cracco. But such a determination, pa1ticularly in an as-applied challenge
such as this, raises factual questions not ripe for adjudication on a motion to dismiss. District
Attomey Vance will be free to raise those arguments again after discovery in a motion for swnmary
judgment.

4

The Court dismissed Cracco's § 1983 claims in its prior opinion. (Dkt. 37.) The Court notes that none ofCracco's
§ 1983 or tort claims were brought against District Attorney Vance.

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V.

Conclusion

The Court DENIES the motion to dismiss. The Clerk is directed to terminate the motion
at Docket No. 22. The parties are directed to submit a civil-case-management plan by January 8,
2016.

Dated: New York, New York
December 9, 2015
SO ORDERED

PAUL A. CROTTY
United States District Judge

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