Letter in Opposition to Mtn to File Amicus Brief Docket 162

8/15/2019 Letter in Opposition to Mtn to File Amicus Brief Docket 162

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DISTRICT ATTORNEYCOUNTY OF NEW YORK

ONE HOGAN PLACE

New York, N. Y. 10013

(212) 335-9000

CYRUS R. VANCE, JR.DISTRICT ATTORNEY

May 17, 2016

BY ECFHonorable Katherine B. ForrestUnited States District JudgeSouthern District of New York500 Pearl StreetNew 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 writein opposition to the motion of the Legal Aid Society to file an amicus brief in supportof plaintiffs’ constitutional challenge to the gravity knife statute . This eleventh-hourbrief – which advances novel allegations and legal arguments not raised by plaintiffs inthe past five years of litigation – fails to meet the standard for participation as amiciand exemplifies the term “sandbagging.”

I. Applicable standard

“District Courts have broad discretion in deciding whether to acceptamicus briefs.” Jamaica Hosp. Med. Ctr., Inc. v. United Health Group, Inc., 584 F. Supp. 2d489, 497 (E.D.N.Y. 2008). “[T]he circumstances under which an amicus brief isconsidered ‘desirable’ are limited.” Id. Specifically, an amicus brief should be allowedonly 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 beyondthe 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 Int’l 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 isused to present wholly new issues not raised by the parties.” Citizens Against CasinoGambling v. Kempthorne , 471 F. Supp. 2d 295, 311 (W.D.N.Y. 2007). “[T]he namedparties should always remain in control, with the amicus merely responding to the

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


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issues presented by the parties. An amicus cannot initiate, create, extend, or enlargeissues.” 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, anamicus 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), aff’d, 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.2d583, 592 n. 16 (D.N.J.2002) ( citing to Yip at 1568) (“At the trial level, where issues offact as well as law predominate, the aid of amicus curiae may be less appropriate thanat the appellate level, where such participation has become standard procedure.”)

“The role of an amicus curiae is to provide the Court with neutralassistance 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 allowparticipation.” 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 adversarialproceeding involving one of the parties pending in another court and therefore couldnot provide a “neutral” analysis).

II. The Legal Aid Society’s motion to file should be denied as their proposed brief does not meet the standard for participation as anamici

The Legal Aid Society offers no explanation as to why its belated amicusbrief – filed three-and-a-half years after the close of fact discovery, three-and-a-halfyears after the briefing of dispositive motions, nearly two years after the briefing of

plaintiffs’ appeal from this Court’s resolution of the same, two months after the filingof plaintiffs’ trial brief, and a full month after the filing of defendants’ opposition trialbrief – is appropriate in light of the foregoing standards. To consider the new factualallegations and legal theories raised for the first time by the Legal Aid Society and theiralleged, non-party clients, who were never identified during discovery and are barelyidentifiable in the brief, will result in immense and irreparable prejudice to the District Attorney’s 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” andarguments raised by the Legal Aid Society have no relation to the actual plaintiffs inthis case. The brief and video performances submitted by the Legal Aid Societypropose to introduce cherry-picked alleged tales of several clients - out of hundreds -

who were supposedly prosecuted for possessing a prohibited gravity knife. Thesestories were not raised in the pleadings and defendants have had no opportunity to



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verify or develop the factual background of the claims. To consider the alleged arrestsand prosecutions of the individuals referenced by the Legal Aid Society as part of theplaintiffs’ vagueness challenge to the gravity knife statute would defeat the requirementthat a federal Court, in exercising its jurisdiction, resolve a case and controversybetween the actual parties.

The Legal Aid Society also raises theories of liability that have never beenraised by plaintiffs in the five years of litigation: namely, the alleged harshness of thesentencing 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 gravityknife law. Plaintiffs have not raised the sentencing parameters attendant to the gravityknife law in general or, in specific, the District Attorney’s advocacy under thosesentencing 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 AidSociety’s position by a unanimous decision of the New York Court of Appeals. Peoplev. Parrilla , 2016 NY LEXIS 1082 (May 3, 2016). In Parrilla , the defendant argued thatthe People should be required to establish that he knew his knife met the statutorydefinition of a gravity knife. The Court specifically held: that “[I]t is not necessary thatdefendants know that the knife meets the technical definition of a gravity knife underPenal Law § 265.00(5).” Id . Notably, the Legal Aid Society did not seek leave to fileas an amici before the Parrilla Court of Appeals. Instead, it asks a federal court to strikedown a duly enacted statute that has been upheld, time and time again, in the statecourts tasked with enforcing it. The Legal Aid Society’s unwillingness to offer the samearguments 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 amicuscuriae.

B. Stripped of its new and unverified allegations, the Legal Aid Society’sproposed brief rehashes arguments already raised by plaintiffs whileslandering the District Attorney’s Office and the officers of the New

York City Police Department.

Where not advancing novel alleged “facts” and theories, the Legal AidSociety’s proposed brief regurgitates the same arguments that plaintiffs have asserted

since the inception of this litigation in 2011. Like plaintiffs, the Legal Aid Societyargues the knives plaintiffs possessed were not intended to be prohibited by the 1958enactment of New York’s gravity knife law; that New York Courts’ determination thatthe “wrist flick” test constitutes centrifugal force and the Defendants’ application ofthat law is unconstitutionally vague; and that otherwise law abiding individuals cannotbe expected to anticipate the “athletic prowess of police officers” in flicking open aknife. These are the mainstays of plaintiffs’ arguments, which have been thoroughlyand repeatedly argued in their Trial Brief. To the extent the amicus brief repeats these



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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 thecourt feels that the parties are adequately represented so that amicus participation isneither necessary nor helpful, it should deny amicus curiae participation”).

In its proposed brief the Legal Aid Society also offers arguments thatplaintiffs 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 functionof 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 “uniquepoint of view that [was] not available to the Court from the parties in the underlyingaction”); United States v. El-Gabrowny , 844 F. Supp. 955 at 957 (S.D.N.Y. 1994) (denyingmotion to file amicus brief where proposed submissions did not offer “any argumentor point of view not available from the parties themselves”). Supplementing thearguments 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 Society’s motion. See Bear,Stearns & Co. Inc ., 2003 U.S. Dist. LEXIS 14611, at *16 (denying motion to appear asamici curiae because “[c]onferring amicus status on such partisan interests isinappropriate”).

Particularly in this context, where the Legal Aid Society ’s interests aredirectly aligned w ith plaintiffs’ interests, it should not be allowed to buttress weak oromitted arguments by plaintiffs through the guise that it is simply operating as a “friendof the court.” Such conduct abuses the amicus curiae function and severely prejudicesthe 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 “asapplied” to the functioning of certain knives. It is a question of law that can bedetermined by the Court without the Legal Aid Society muddying the issues withextraneous name-calling and grandstanding.

By seeking to add and rely upon new arguments and untested allegationsin support of plaintiffs’ arguments, the Legal Aid Society is clearly acting as an advocatefor plaintiffs.1 The Court should not give credence to an amicus submission where theapplicant 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 defenseattorneys in support of defendant’s motion for dismissal since defendant’s interests

were adequately represented and proposed brief would not aid court’s evaluation of

1 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 andto former plaintiff Doug Ritter, the Chairman of Knife Rights, who is funding this litigation .



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the motion). Courts have routinely disapproved of the use of the amicus process forpure advocacy purposes, and have rejected filings where the proposed amicus, “[r]atherthan 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 criminaldefendant and did not provide an objective, dispassionate, neutral discussion of issues).“In doing so, [a prospective amicus] does the court, itself, and fundamental notions offairness 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 isperceived to be an advocate for one of the parties to the litigation, to appear amicuscuriae should be denied”), Long Island Soundkeeper Fund v . New York Athletic Club of theCity of New York, 1995 U.S. Dist. LEXIS 8176 at *3 (S.D.N.Y. June 12, 1995) (denyingproposed 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 inactuality, is patently partisan and aligned with plaintiffs, a so-called “amicus” contribution of this kind is unnecessary, unwarranted, and highly prejudicial to theDistrict Attorney and the City, and should therefore be denied.

C. The belatedness of the Legal Aid Society’s brief createsintolerable prejudice to the defense and no explanation is offeredto justify the delay

The Legal Aid Society also offers no explanation for its delay in filing. Thislawsuit was filed nearly five years ago. All but one of the alleged incidents raised in theproposed brief are either not recent or not identified. For example, the allegations forRichard Neal stem from June 2008, Richard Gonzalez from April, 2011 and JesusRodriguez from August. 2011. Alternatively, no dates are provided for the incidentsinvolving “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 theLegal Aid Society has been aware of this litigation since at least October 8, 2014.http://www.legal-

aid.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 thepresentation 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 toproceed as amici at the trial court level is discretionary, and such a motion should notbe granted unless the court “‘deems the proffered information timely and useful,’” Yip


http://www.legal-aid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsforchangesinthegravityknifelaw.aspxhttp://www.legal-aid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsforchangesinthegravityknifelaw.aspxhttp://www.legal-aid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsforchangesinthegravityknifelaw.aspxhttp://www.legal-aid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsforchangesinthegravityknifelaw.aspxhttp://www.legal-aid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsforchangesinthegravityknifelaw.aspxhttp://www.legal-aid.org/en/mediaandpublicinformation/inthenews/legalaidattorneyhararobrishfightsforchangesinthegravityknifelaw.aspx


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v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J.1985), aff’d, 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)). TheLegal Aid Society’s brief is neither. Moreover, “[a]t the trial level, where issues of factas well as law predominate, the aid of amicus curiae may be less appropriate than at theappellate level where such participation has become standard procedure.” Yip, 606

F.Supp. at 1568.

While leave to file an amicus brief is within Your Honor’s discretion, thedistrict 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 filean amicus brief is “no later than 7 days after the principal brief of the party beingsupported is filed.” The Legal Aid Society’s request to file an amicus brief two monthsafter plaintiffs filed their opening trial brief is decidedly late even under the FederalRules of Appellate Procedure and should be denied as such.

In sum, this Court has given the parties ample opportunity to argue theirrespective positions, in dispositive motions and now at trial with opening briefs,opposition briefs, reply and sur-reply briefs. Plaintiffs are represented by competentcounsel. There is no reason for an amicus submission. Furthermore, the Legal AidSociety’s newly raised arguments and untested allegations do not present “uniqueinformation or perspective that can help the court beyond the help that the lawyers forthe parties are able to provide,” Lehman XS Trust, Series 2006-GP2 v. Greenpoint MortgageFunding, 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 Cityrespectfully request that the Court deny the Legal Aid Society ’s motion to file its

proposed amicus brief on behalf of plaintiffs.

Respectfully submitted,

/sPatricia J. Bailey

Assistant District Attorney

Louise Lippin

Assistant Corporation Counsel


Documents

Letter in Opposition to Mtn to File Amicus Brief Docket 162