Another NYC Arrest

[tom19176]

Thanks for the recent court update. I can't say I agree or even understand the Judge's logic. You can walk into Walmart and buy a gravity knife or assited opener and be charged with a crime when you are doen paying for the knife! It is equally illegal to sell gravity knives. Not a good ruling at all......There was a Federal case last year in which a folding razor knife was deemed to be a gravity knife, but it was found not to be so by the judge, and the fact that Home Depot sold them was brought into evidence in the case. I for one would love to see this cleared up once and for all, and the sellers held to the same standard as the users....

 

[mp510]

There was a Federal case last year in which a folding razor knife was deemed to be a gravity knife, but it was found not to be so by the judge, and the fact that Home Depot sold them was brought into evidence in the case.

I don't have the Fana documents in front of me right now, but I believe that the appellant was attempting to apply Irizarry to his situation. On the Westlaw database, that case is flagged with "some negative history but not overruled" so how much value it has is questionable. Moreover, the Fana documents did not exactly make it clear what sort of knife Miguel Fana was carrying- there is only the connection that his counsel tried to make likening his knife to the tools sold at Home Depot and elsewhere. The wording of the Fana opinion left me with the impression that he was just carrying the knife, rather than posessing it is a specific (and common) tool of his trade like Irizarry was.

While Weinstien closed his opinion in Irazarry sugesting a broad scope protection of folding lock knives, haveing written,

Even if Officer McCabe believed the Husky to be a gravity knife, his belief was not reasonable given the instrument's wide and routine distribution for lawful purposes. With so many folding lock-back utility knives in circulation for lawful purposes, nationally and within the State of New York, it was not reasonable for the arresting officer to believe that the Husky represented a weapon. The possession of a Husky by the defendant, an employed mechanic who used the instrument in his work at his employer's direction, did not provide probable cause to believe that he committed or was about to commit a crime.

it is clear to me that he was only intending to address the specific situation of a tradesman carrying a common tool of his trade, which may be criminally misused. This is especially evident in the following preceeding paragraph,

Carrying a Husky is not a suspicious act that alone gives rise to reasonable suspicion of criminal activity. The instrument which defendant had in his possession is a common tool. Its open possession is the equivalent of a carpenter carrying a hammer or an individual in the street carrying a cellular phone. The law cannot define as criminals tens of thousands of mechanics who are required to carry such tools in order to earn a living. Claw hammers, used by carpenters, can be used to smash skulls, screwdrivers, used by electricians, can be used to stab bodies and wall board cutters can be used to cut jugular veins, but those are not the intended or designed for uses of such instruments.

Interestingly, way back when, the New York CPW law did have an occupational exemption which has been subseqently revoked.

Support for this conclusion lies in the initial exemption in the New York law for the carrying of switch blades for professional or trade purposes.

Tom- email me if you want a .pdf of the Irizarry opinion

 

[rio]

I am a former NYC LEO and now manage malls and have off duty NYPD work for me in the malls. That backround explained, one of my off duties works in the warrant division ( the guys who come get you when you miss a court date). He had to bring in a woman who works in Manhattan setting up stages for Broadway Plays, because she was arrested for having a Kershaw Blur along with her tools when she entered the subway. She was held for almost two days, wrongly charged with a felony instead of the misdameanor. When the ADA saw her, he realized she was mis charged with a felony and lowered it, then offered her a plea deal to a violation ( which would not have given her a criminal record), but she had to plead guilty. She refused to do so, based on the fact that she bought the knife at Walmart offered openly for sale to anyone, and she understood that it was a spring assisted knife and not a switchblade. She was released and told she would be mailed a court date, but she was never notified of when to appear in court and a warrant was issued for her arrest. My guy had to pick her up at her house at 2 AM. She was brought back to jail and released with a new court date. I don't know her, but I feel deeply for her in this situation. She was enetring the subway with a bag of tools and the Blur clipped to her pocket. The officer must have really been "looking" to arrest her as the exposed knife law does not prevent the carry of a exposed knife for a worker to and from their job and while working. He did upon seeing the knife openly displayed have the right to see if it was a leagl knife, but in my day he would have been laughed out of the sation house for a BS arrest like this. My guys who work with me state they see it all the time....:barf::thumbdn:

what a bad arrest, there is so many people in the city with illegal carries and they arrest someone with a visible clip , thats just bs .

 

[Charlie Mike]

Any time the arrest numbers go up, an administration (gov, mayor, pres) can say that they are "tough on crime" and have stats to reflect such.