JOSEPH F. BIANCO, District Judge:
Plaintiff Nicholas Small ("Small" or "plaintiff") brought this action against Bud-K Worldwide, Inc. ("Bud-K"), Kathleen M. Rice ("Rice") and Lauren J. Kalaudjian ("Kalaudjian") (collectively the "defendants").
Plaintiff has moved for partial summary judgment against the County defendants alleging that Section 265.01(1) is void for vagueness. Defendant Bud-K has also moved for summary judgment on the same grounds. The County defendants crossmoved for summary judgment alleging that: (1) plaintiff has failed to state a claim upon which relief can be granted; (2) the County defendants are entitled to qualified immunity; (3) Section 265.01(1) is not unconstitutionally vague; (4) there is no Second Amendment Right to possess and carry
The Court has taken the facts set forth below from the parties' affidavits and exhibits, and from the defendants' Rule 56.1 Statement of Facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.
On or about June 13, 2010, plaintiff purchased a "Black Cat Keychain" from Bud-K through Bud-K's website. (Pl.'s 56.1. ¶ 1; Am. Compl. ¶ 24.) The Black Cat Keychain is advertised as an "unusual keychain" that "packs a mighty punch" such that "[t]he eyes of the cat become finger holes and the ears become spikes when clutched in the hand to create an excellent means of self-defense against an attacker." (Id. ¶ 2.) With the consent of all parties, Bud-K provided the Court with a Black Cat Keychain.
On or about September 16, 2010, plaintiff was arrested and charged with violation of Section 265.01 based on his possession of a Black Cat Keychain in a pouch on his belt that was discovered by police during a vehicle stop. (Id. ¶ 3.) Plaintiff pled guilty to a violation of New York Penal Law § 240.20(7) and allocuted to being in possession of an instrument that could be considered metal knuckles. (County Defs.' Counter 56.1 ¶¶ 3, 4.)
Plaintiff commenced this action on May 23, 2011. Plaintiff amended his complaint on August 15, 2011.
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "`must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "`concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC
Plaintiff and Bud-K allege that Section 265.01(1) is void for vagueness as applied to the Black Cat Keychain. The County defendants argue that Section 265.01(1) is not vague, and thus, the claims against the County defendants should be dismissed. In addition, the County defendants argue that plaintiff cannot bring this action because his conviction has not been invalidated. For the reasons set forth below, this Court finds that plaintiff is not barred by the Heck doctrine from bringing this action. However, the Court finds that Section 265.01(1) is not vague, and thus, summary judgment is granted as to the County defendants and denied as to the plaintiff and Bud-K., addition, the County defendants argue that plaintiff cannot bring this action because his conviction has not been invalidated. For the reasons set forth below, this Court finds that plaintiff is not barred by the Heck doctrine from bringing this action. However, the Court finds that Section 265.01(1) is not vague, and thus, summary judgment is granted as to the County defendants and denied as to the plaintiff and Bud-K.
The County defendants argue that plaintiff is barred from bringing this action because of the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
In Heck v. Humphrey, the Supreme Court "confronted the question of whether, given the overlap between § 1983 and the federal habeas corpus statute, a prisoner seeking civil damages may proceed with a § 1983 claim where success on the claim necessarily would implicate the unconstitutionality of the prisoner's conviction or sentence." Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir.1999) (citing Heck, 512 U.S. at 480-90, 114 S.Ct. 2364). The Supreme Court in Heck explained:
512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted) (emphasis in original); see also Wilkinson v. Dotson, 544 U.S. 74, 81, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) ("Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence." (emphasis in original)). Thus, pursuant to Heck, courts routinely dismiss claims brought under Section 1983 when such claims bear on the validity of an underlying conviction or sentence. See,
The Heck doctrine is inapplicable to the situation at bar. Here, plaintiff is not seeking to invalidate his conviction. In fact, as explained supra, plaintiff was not convicted pursuant to Section 265.01(1), but rather pled guilty to a violation of New York Penal Law § 240.20(7) and allocuted to being in possession of an instrument that could be considered metal knuckles. (County Defs.' Counter 56.1 ¶¶ 3, 4.) Moreover, the plaintiff is not requesting that this Court overturn his conviction in state court, nor would the prospective declaration sought in this case invalidate his conviction. In fact, plaintiff's counsel confirmed, on the record at oral argument, that plaintiff is not seeking to disturb his guilty plea. Instead, plaintiff is seeking "[a] declaration that the `Black Cat Keychain' was and is legal to possess in New York and may not be considered to be `metal knuckles' for purposes of prosecution under New York Penal Law § 265.01." (Am. Compl. ¶ 59.) Thus, the Heck doctrine is inapplicable to the situation at bar.
Under the vagueness doctrine, "the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." United States v. Lanier, 520 U.S. 259, 267, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); accord United States v. Velastegui, 199 F.3d 590, 593 (2d Cir.1999), cert. denied 531 U.S. 823, 121 S.Ct. 67, 148 L.Ed.2d 32 (2000); see Rogers v. Tennessee, 532 U.S. 451, 459, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (holding that right to fair warning "bear[s] on the constitutionality of attaching criminal penalties to what previously had been innocent conduct"); Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ("[P]ersons have a right to fair warning of that conduct which will give rise to criminal penalties."). Due process requires that a criminal statute "define the criminal offense 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, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993). Where a statute does not regulate First Amendment interests, the "statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); accord
"Because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness." Nadi, 996 F.2d at 550. However, "[a] statute or regulation is not required to specify every prohibited act." Perez, 368 F.3d at 175 (holding that statute that provided that "any action detrimental to the best interest of racing" was not vague as applied to plaintiff's conduct.).
"The degree of vagueness tolerated in a statute varies with its type: economic regulations are subject to a relaxed vagueness test, laws with criminal penalties to a stricter one, and laws that might infringe constitutional rights to the strictest of all." VIP of Berlin, LLC, 593 F.3d at 186 (quoting Rubin, 544 F.3d at 467).
Although not binding on this Court on the federal constitutional question raised by this litigation, the parties point to several New York State Court cases that have analyzed Section 265.01(1) that are instructive on the vagueness issue before the Court.
124 Misc.2d 182, 183, 475 N.Y.S.2d 783 (N.Y.Crim.Ct.1984). The Criminal Court of the City of New York failed to reach the constitutionality of Section 265.01, but held that "`spikes' are not `metal knuckles' within the meaning of the statute." Id. In coming to this decision, the court noted that there was no definition of "metal knuckles" in the statute or in the legislative history and resorted to "[t]he common dictionary, definitions of metal knuckles. These definitions refer to `metal finger rings' or a `metal device.'" Id. at 184, 475 N.Y.S.2d 783. Accordingly, the court concluded that "[L]eather straps with spikes protruding from them are not in these definitions." Id. at 184, 475 N.Y.S.2d 783.
Less than a year later, the Criminal Court of the City of New York ruled in People v. Singleton that an item similar to the item in Laguna could be found by the trier of fact to be metal knuckles. 127 Misc.2d 735, 487 N.Y.S.2d 268 (N.Y.Crim. Ct.1985). As a threshold matter, the court noted that "the possession of metal knuckles has long been prohibited in this jurisdiction as well as in others." Id. at 736, 487 N.Y.S.2d at 269. In Singleton, the item at issue was described as follows:
Id. at 735-36, 487 N.Y.S.2d at 269. The court disagreed with the reasoning of Laguna, and noted that the definition in Webster's Dictionary was: "a set of metal finger rings or guards attached to a transverse piece and worn over the front of the doubled fist for use as a weapon." Id. at 735-36, 487 N.Y.S.2d at 269. The court then noted that "common sense is not exhausted by dictionary definitions" and noted three factors to be considered when determining whether an item is metal knuckles:
Id. at 736-37, 487 N.Y.S.2d at 269-70. The court considered the three factors and held that the item in question could be considered metal knuckles:
Id. at 737, 487 N.Y.S.2d at 270. The court did not address any constitutional vagueness issues with respect to the statute.
Recently, in the case People v. Laurore, the New York Supreme Court of Rockland County, after analyzing Laguna and Singleton, determined that a "cat key chain" that "[h]as two holes for the fingers to slide into and two metal pointed spikes that, when the knuckles are worn, protrude from the back of the hand where the fist could strike an individual," was metal knuckles within the definition of the New York statute. 10-252, 30 Misc.3d 1237(A), 2011 WL 903184, at *2, *4 (N.Y.Sup.Ct. Feb. 15, 2011). The court found that whether the dictionary definition from Laguna, or the three factors in Singleton were analyzed, the cat keychain was metal knuckles. Id. at *4. The court stated that "the object has two holes for fingers and two pointed metal spokes which, when worn protrude from the back of the hand and which are obviously designed to enable one to inflict a blow from a fist enclosed by metal spikes for the purpose of enhancing the injury to be inflicted on contact." Id. at *3.
Moreover, the court found that the statute was not unconstitutionally void for vagueness, facially or as applied. Id. at *7. The court framed the vagueness issue regarding Section 265.01(1) in the following terms:
Id. at *5. The court then rejected the argument that a lack of a definition made the term "metal knuckles" unconstitutionally vague:
Id. at *6. Thus, based upon an analysis of New York case authority on vagueness (which mirrors federal law), as well as reliance on federal case authority, the court found that "the statute is reasonably clear in its application to the defendant and therefore reject[ed] the as-applied challenge." Id. at *7.
Plaintiff, in addition to noting that Laurore is not binding on this Court or even an "intermediate appellate decision with authority throughout one of the Judicial Departments, let alone the entire State," argues that, since the Court in Laurore essentially chose between two inconsistent cases, the decision in Laurore demonstrates how reasonable minds can differ as to how to interpret "metal knuckles." (Pl.'s Reply Br. at 8.) Moreover, plaintiff argues that the common understanding of metal knuckles would not include the Black Cat Keychain with defensive attributes. However, the Court disagrees with plaintiff, and holds that the statute is not void for vagueness as applied to the Black Cat Keychain. Although it is not binding, this Court finds not only the analysis in Laurore of the construction of the statute under New York law as it relates the term "metal knuckles" to be highly persuasive, but also fully agrees with the analysis of the vagueness issue in Laurore and concludes that it applies with equal persuasive force to the federal question in the instant case.
First, simply because two courts disagree over the application of a statute does not necessarily mean that a statute is void for vagueness. United States v. Morrison, 686 F.3d 94, 104 (2d Cir.2012) ("it is manifest that conflicts between courts over the interpretation of a criminal statute do not in and of themselves render that statute unconstitutionally vague"); see also United States v. Kernell, 667 F.3d 746, 754 (6th Cir.2012) ("the fact that different courts have interpreted a statute differently does not make the statute vague — if that were true, a circuit split over the interpretation of a criminal statute would by definition render the statute unconstitutional"), petition for cert. filed; United States v. Michel, 446 F.3d 1122, 1136 (10th Cir.2006) ("That different courts might draw subtle distinctions as to what constitutes crimes occurring on occasions different from one another does not necessarily render the statute vague for constitutional purposes."); United States v. Woods, 730 F.Supp.2d 1354, 1364 (S.D.Ga.2010) ("the Court notes that Defendant cites no case law for his proposition that different interpretations of the same statute make the
In any event, in this case, plaintiff and Bud-K have raised a vagueness claim as it applies to the Black Cat Key Chain, yet the two conflicting decisions plaintiff and Bud-K rely on deal with a completely different item. In Laguna and Singleton, the items in question were leather straps with metal prongs protruding. Here, the item is completely different as it is constructed entirely out of metal and has metal finger holes. Plaintiff and Bud-K have only challenged the statute as applied to the Black Cat Keychain, and thus, the fact that the New York Courts cannot agree on how to apply the statute to a different item, that is made of both leather and metal, does not demonstrate that reasonable minds can differ as to how the statute relates to the Black Cat Keychain.
As discussed below, this Court agrees with the persuasive analysis of the Rockland County Supreme Court, and finds that Section 265.01(1) is not unconstitutionally void for vagueness as applied to the Black Cat Keychain in this case.
As noted supra, "[a] statute or regulation is not required to specify every prohibited act." Perez, 368 F.3d at 175. Thus, the fact that "metal knuckles" is not defined in Section 265.01(1) is not dispositive of this issue. Plaintiff argues that,
(Pl.'s Br. at 4-5.) However, plaintiff does not point to any source to support this "common sense" understanding. He does not provide the Court with a definition of "metal knuckles" from any reputable book or website that would leave the Court to believe that the plaintiff's "common understanding" is correct. Additionally, at oral argument, plaintiff argued that there are several definitions of metal or brass knuckles that support plaintiff's analysis yet failed to directly cite any specific source.
In addition, the Court notes that plaintiff's argument for a narrow "common sense" understanding of "metal knuckles" to be limited to "brass knuckles" is undermined by reading the term in the context of the entire statute. It is well settled that, in assessing vagueness challenges, the court should not look at statutory language in isolation, but rather should consider the language in its statutory context. See Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 213 (2d Cir. 2012) (citing United States v. Farhane, 634 F.3d 127,
In any event, even if this Court was to adopt plaintiff's "common sense" understanding and equate the term "metal knuckles" in the statute to "brass knuckles," the Court would still find that the statute is not constitutionally void for vagueness. As the court in Laurore noted "[b]oth Webster's dictionary online and onlinedictionary.com define `brass knuckles' as follows: Brass knuckles: a small metal weapon; worn over the knuckles on the back of the hand." 2011 WL 903184, at *1. Here, the Black Cat Keychain meets that definition. As described supra, the Black Cat Keychain is a small metal object, approximately 3 inches by 1 ½ inches, that is designed to be worn over the back of the hand by placing two fingers through the finger holes.
Moreover, plaintiff alleges in his complaint that he bought the Black Cat Keychain on Bud-K's website, which explicitly describes the item's design as a weapon. Annexed as Exhibit B to the Declaration of Liora M. Ben-Sorek (the "Ben-Sorek Decl.") is a printout from Bud-K's website with pictures and a description of the item. (Ben-Sorek Decl., Ex. B, Apr. 6, 2012, ECF No. 45.) The website states: "This unusual keychain packs a mighty punch! The eyes of the cat become finger holes and the ears become spikes when clutched in the hand to create an excellent means of self-defense against an attacker." (Id.) Thus, it is clear from the website, just as it is from the item itself, that the item is designed for a person to increase the damage done if the purchaser punches another person with the Black Cat Keychain. In addition, there is a photograph of the Black Cat Keychain worn over a closed fist demonstrating how the item would be used as a weapon in a similar fashion to brass or metal knuckles. In short, a person of
Thus, the Court holds that a person of ordinary intelligence reading Section 265.01(1) would understand the term "metal knuckles," given the common meaning of the term (especially in the context of the statute) to apply to an item such as the Black Cat Keychain that is clearly designed as a weapon to be put over multiple knuckles, with metal spikes protruding from the knuckles. The fact that the weapon also functions as a key chain, or that it could be viewed as a defensive weapon (as opposed to an offensive weapon) has no constitutional significance in the vagueness analysis given the statutory wording. In other words, no ordinary person could read the statute as exempting weapons that would otherwise qualify simply because they have a dual purpose or could be used defensively. There is simply no language in the statute that even remotely suggests that those types of distinctions would exempt the weapon from the statute. Accordingly, Section 265.01 gives a person of ordinary intelligence a reasonable opportunity to know that the Black Cat Keychain is prohibited, and Section 265.01 is not void for vagueness as applied to the Black Cat Keychain.
Other courts confronting analogous constitutional vagueness challenges in connection with various terms in weapons statutes have reached a similar conclusion. For example, in State v. Neighbors, 21 Kan.App.2d 824, 908 P.2d 649 (1995), a defendant challenged his conviction for the sale of throwing stars and two metal knuckles (one in the form a handle of a knife and one which was identified as a "brass buckle.") Id. at 652. Defendant argued that, because metal knuckles had no definition, it was unconstitutionally vague. With respect to the lack of a definition of metal knuckles in the statute and in the jury instructions, the court noted that "[t]he term `metal knuckles is not a term which is so foreign to the vocabulary of the average juror as to require definition.'" Id. at 655 (quotations and citation omitted). Moreover, in rejecting the vagueness challenge, the Court held that "[a] person of common intelligence need not guess whether the statute forbids the sale of metal knuckles, regardless of whether they are characterized as paperweights, belt buckles, historic replicas, or wall hangings." Id. at 653. In addition, the court found unpersuasive the argument that the statute is vague because it fails to draw a clear line between legitimate and illegitimate uses for metal knuckles. Id. ("[The statute] makes unlawful the sale of all metal knuckles, regardless of their intended use." (emphasis in original)). Finally, the court rejected a selective enforcement challenge, noting that the fact that someone is the first to be prosecuted under the law does not, by itself, establish that there is selective enforcement of the law because of vagueness. Id.; see also Dorsey v. State, 212 Ga.App. 830, 442 S.E.2d 922, 923 (1994) (rejecting vagueness challenge to prosecution of defendant for possession of a scalpel as a "dangerous or deadly weapon or instrument" and noting that "[a] scalpel in
The Court notes that the fact that there may be other difficult hypothetical situations involving the application of the term "metal knuckles" — such as certain types of jewelry that cover the fingers — does not mean that the statute as applied to this particular item is unconstitutionally vague. See, e.g., United States v. Austin, 902 F.2d 743, 745 (9th Cir.1990) ("Although [the defendant] contends that `weapons' and `tools' are ambiguous terms, we are not here concerned with the vagueness of the law as applied to the conduct of others." (citation omitted)), cert. denied 498 U.S. 874, 111 S.Ct. 200, 112 L.Ed.2d 161 (1990); see also Upshur v. State, 420 A.2d 165, 168 (Del.1980) ("we find that [the statutes] are not unconstitutionally vague as applied in this case [involving a butcher knife] and we will not be swayed by defendant's pleas on behalf of those whom he fears might be arrested if found to be carrying a toy or table knives in their pockets"), superseded by statute on other grounds as stated in Taylor v. State, 679 A.2d 449 (Del.1996).
Finally, plaintiff contends that the New York State Legislature could not have reasonably intended to criminalize weapons, such as the Black Cat Keychain, which can be utilized defensively by potential rape or robbery victims, to prevent a violent attack. (See Pl.'s Br. at 7-8 ("Given these defensive attributes of the B[CK] as compared to the primarily offensive attributes of brass or `metal' knuckles, it cannot even reasonably be said that the legislature could have intended to include the BCK among § 265.01(1)'s list of per se prohibited items)."); see also id. at 6 ("[T]he rather fearsome image of a potential opponent's bearing spikes at the end of his or her knuckles tends to make a would-be attacker think twice (an aspect that renders the B[CK] a useful defensive item for relatively weak or vulnerable potential rape and/or robbery victims who may have to traverse dangerous areas").) However, having determined that the statute does not make any distinction for weapons possessed for defensive use versus offensive use, and having determined that the statute is very clear in that regard and is not vague as applied to this key chain/weapon, it is simply not the proper role of the court, in the context of a vagueness challenge, to re-write the statute to permit such defensive possessions of such items, as plaintiff wishes; rather, that is the exclusive province of the duly-elected, legislative branch. See, e.g., United States v. Arnold, 126 F.3d 82, 86 (2d Cir.1997) ("Notwithstanding that such a result was unintended, the Court declines any invitation to redraft the statute — that is a task better left to the legislature."); see also Thompson v. Goetzmann, 337 F.3d 489, 493 (5th Cir.2003) ("[W]e reiterate that the courts are not in the business of amending legislation. If the plain language ... produces the legislatively unintended result
In sum, the Court concludes that summary judgment is warranted in favor of the County defendants because Section 265.01(1) is not constitutionally vague as applied to this case.
For the reasons set forth above, the plaintiff and Bud-K's motions for partial summary judgment are denied and the County defendants' motion for summary judgment is granted. Accordingly, all claims against the County defendants are dismissed.
SO ORDERED.
N.Y. Penal Law § 265.01(1).
