MEMORANDUM AND ORDER
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 оn the same grounds. The County defendants cross-moved 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 car
I. Background
' A. Facts
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 motiоn 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,
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 key-chain” 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.)
B. Procedural History
Plaintiff commenced this action on May 23, 2011. Plaintiff amended his complaint on August 15, 2011.
II. Standard of Review
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,
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,
III. Discussion
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.
A. The Heck Doctrine
The County defendants argue that plaintiff is barred from bringing this action because of the Supreme Court’s decision in Heck v. Humphrey,
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,
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidаted is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
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, plaintiffs 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 Key-chain’ 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.
B. Vagueness
1. Legal Standard
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,
“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,
“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,
2. Application
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.
[a] belt wrist strap with another piece of leather attached to it; the second piece of leather is in a triangular shape with a loop which slips over the middle finder. Metal studs, approximately one-half-inch long, protrude from the entire item.
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.
It is composed of two сonnecting parts. The larger part is a leather strap designed to be worn on the wrist and hand. The strap is approximately two inches wide at the wrist and widens to cover the back of the hand from the wrist to just above the knuckles. Several metal spokes, each approximately one-half inch long, are fastened to this strap. The second part of the item is a strap which covers the knuckles and fist. This second strap, to which metal spikes are also fastened, is connected to the first strap. The second strap, with the spikes, fasted to it, is kept in place over the knucklesand fist by means of an attached leather loop through which the wearer inserts his fingers.
Id. at 735-36,
Firstly, a blow by a fist wearing the instrument must cause metal to come into contact with the victim’s body.... Secondly, the instrument must be designed so that it readily can be used offensively against the human body. Thirdly, the design of the instrument must be such that it cannot reasonably be put to any use other than to enable the wearer to inflict a blow with a fist covered by metal or pieces of metal. The second and third factors, which overlap to a certain extent, -will ensure that jewelry and other items which are “innocently possessed [will not] provide the basis for police action.”
Id. at 736-37,
Having considered the foregoing factors, I conclude that the item allegedly possessed by the defendant sufficiently qualifies as metal knuckles so as to warrant the denial of his motion to dismiss. Were a blow to be struck by a person wearing this item, the metal spikes covering his fist would surely come in contact with the victim’s body. It is apparent that this item readily can be used as a weapon. In other words, no material alterations need be made to it before it could be used in striking. Moreover, from the very design of the item — the fact, for example, that the pointed metal spikes are carefully positioned so as to be held in place over the fist and knuckles — one can legitimately conclude that its only reasonable use is to enhance the wearer’s ability to injure a victim.
Id. at 737,
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,
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:
Many of the items, such as “stun gun,” “gravity knife” “switchblade knife,” “pilum ballistic knife” and “metal knuckleknife,” to name a few, are defined within the statute. However, the following fourteen items enumerated in the statute are not defined in the Penal Law: pistol, revolver, dagger, dirk, razor, stiletto, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, sand bag, sandclub and slungshot. The question is, does the fact that the statute does not specifically define “metal knuckles” render the statute unconstitutionally vague in that respect.
Id. at *5. The court then rejected the argument that a lack of a definition made the term “metal knuckles” unconstitutionally vague:
The mere fact that “metal knuckles” is not a term defined by thе Penal Law does not render the statute unconstitutionally vague. The law does not require that every single term used in the Penal Law be defined. The mere fact that the legislature undertook to define some objects and not others is an indication that the legislature was well aware of the self-defining nature of “metal knuckles”. The spirit and purpose of the statute and the objects to be accomplished must be considered when interpreting a st[a]tute.
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 rejected] the as-applied challenge.” Id. at *7.
Plaintiff, in addition to noting that Laurore is not binding on this Court or even an “intermediate aрpellate 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 persuasivе 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,
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 hаs 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 Rock-land 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,
Here, the “common understanding” of “metal knuckles” undoubtedly derives from thе better-known (but statutorily inadequate for obvious metallurgical reasons) phrase, “brass knuckles.” The common perception of the meaning of that term long has been, and remains, that of a hand-worn instrument that, by virtue of its mass, augments the punching power of its wearer, much as weights in a bat increase the momentum (essentially striking power) that the bat can impart to a ball.
(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 plaintiffs “common understanding” is correct. Additionally, at oral argument, plaintiff argued that there are several definitions of metal or brass knuckles that support plaintiffs analysis yet failed to directly cite аny specific source.
In addition, the Court notes that plaintiffs 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,
In any event, even if this Court was to adopt plaintiffs “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.”
Moreover, plaintiff alleges in his complaint that he bought the Black Cat Key-chain 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 Deck”) is a printout from Bud-K’s website with pictures and a description of the item. (Ben-Sorek Deck, Ex. B, Apr. 6, 2012, ECF No. 45.) The website states: “This unusual keychain packs a mighty punch! The eyes of the eat 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,
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,
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 аttributes of brass or ‘metal’ knuckles, it cannot even reasonably be said that the legislature could have intended to include the BCK among § 265.01(l)’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 ehain/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,
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.
IV. Conclusion
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.
Notes
. This action was also commenced against Clint H. Kadel. By stipulation, the action was dismissed as against Clint H. Kadel. (Stipulation of Dismissal, June 27, 2011, ECF No. 6.)
. Section 265.01(1) provides, in relevant part, that:
A person is guilty of criminal possession of a weapon in the fourth degree when:
(1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, сane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star” ...
N.Y. Penal Law § 265.01(1).
. At the oral argument that took place on June 14, 2012, plaintiff's counsel clarified that plaintiff is not arguing that there is a Second Amendment right to carry a Black Cat Key-chain and, instead, argued that the Second Amendment Right gives rise to an additional constitutional dimension that must be considered in resolving the vagueness issue. Accordingly, the Court need not determine whether or not there is a Second Amendment right to carry a Black Cat Keychain.
. The County defendants also argue that Bud-K does not have standing to argue that Section 265.01 is vague. The Court disagrees. Bud-K has a direct pecuniary interest in that it has to refrain from selling the Black Cat Keychain in order to avoid adverse action. Accordingly, Bud-K has standing.
. In addition, although the defendants’ Rule 56.1 Statements contain specific citations to the record to support its statements, the Court has cited to the Rule 56.1 Statements, rather than the underlying citation to the record, when utilizing the 56.1 Statements for purposes of this summary of facts.
. Photographs of the Black Cat Keychain also are contained in the record.
. Plaintiff argues that "[t]he recently recognized right to protect oneself with an 'arm' gives rise to an additional constitutional dimension that must be considered in resolving the vagueness issue.” (Pl.’s Br. at 10-14.) Bud-K appears to make a similar argument. (Bud-K. Br. at 9 (“A vague law is especially problematic where 'the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights' ”) (emphasis in original) (citing Colautti v. Franklin
. The County defendants argue that "[a]dditionally, ‘[t]he construction by State courts of a State statute is binding on Federal courts, there being no Federal question involved, even though such courts disagree with the soundness of the interpretation ...' " (County Defs.' Br. in Support of Cross Motion at 8 (citing Hartnett v. New York City Transit Auth.,
. Moreover, on the issue of the construction of the statute under state law, plaintiff is incorrect that the Laurore court simply picked the Singleton analysis. As discussed supra, the court in Laurore determined that whether using the common sense or dictionary definition found in Laguna or the three-step analysis found in Singleton, a cat keychain, which based on the description is similar if not identical in all material respects to the Black Cat Keychain, was metal knuckles. This Court agrees with that construction of state law under either framework.
. The Black Cat Keychain also meets the Webster’s Dictionary definition cited in Singleton and relied upon in Laguna: "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.” Singleton,
. To the extent that plaintiff and Bud-K also argue that the wording of the statute encourages arbitrary and discriminatory enforcement, the Court concludes that any such vagueness argument on that ground also fails because there is simply insufficient evidence of arbitrary or discriminatoiy enforcement based upon the purported vagueness of the terms. As discussed supra, the fact that New York courts have reached different results in two cases involving items different from the instant case is simply insufficient to satisfy this requirement.
. The County defendants also argue that the claims against defendants Rice and Kalaydijian must be dismissed because they are protected by absolute immunity. (County Defs.' Br. in Support of Cross Motion at 6-7.) However, the only cause of action against the County Defendants is for a declaration that Section 265.01 is void for vagueness as applied to the Black Cat Keychain. (Amen. Compl. at ¶¶ 49-60.) Since this Court has already determined that the statute is not vague, the Court need not address whether Rice and Kalaydijian are protected by absolute immunity.