13-153-cv
Small v. Rice et al.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
26th day of November, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            RICHARD C. WESLEY
                        Circuit Judges.
_____________________________________________________

NICHOLAS SMALL,

                              Plaintiff-Appellant,

                        -v-                                                13-153-cv

KATHLEEN M. RICE, LAUREN J. KALAYDJIAN,1

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:      James Michael Maloney, Port Washington, N.Y.

Appearing for Appellee:       David A. Tauster, Deputy County Attorney of Nassau County
                              (John Ciampoli, County Attorney of Nassau County, on the brief),
                              Mineola, N.Y.


       Appeal from the United States District Court for the Eastern District of New York
(Bianco, J.).


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         The Clerk of the Court is respectfully directed to amend the official caption to conform
with the caption above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        Plaintiff-appellant Nicholas Small filed suit in the Eastern District of New York seeking
a declaratory judgment that New York Penal Law § 265.01(1) is void for vagueness as applied to
his possession of a self-defense tool called the “black cat keychain.”2 Small now appeals from a
September 28, 2012 memorandum and order of the United States District Court for the Eastern
District of New York (Bianco, J.), which (1) granted summary judgment in Defendant-
Appellees’ favor on Small’s void for vagueness claim; (2) denied Small’s cross-motion for
summary judgment; and (3) dismissed count one of Small’s Amended Complaint, his sole claim
against Defendant-Appellees Kathleen M. Rice and Lauren J. Kalaydjian. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

       There are two different ways that a litigant may establish that a statute’s language is so
vague as to deny him or her due process of law. First, a “law violates due process ‘if it fails to
provide people of ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits.’” Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007) (quoting Hill v. Colorado,
530 U.S. 703, 732 (2000)). “Second, a law is unconstitutionally vague ‘if it authorizes or even


       2
           This is what Small’s black cat keychain looks like:




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encourages arbitrary and discriminatory enforcement.’” Thibodeau, 486 F.3d at 65-66 (quoting
Hill, 530 U.S. at 732). Small provided no evidence in the summary judgment record below as to
“arbitrary and discriminatory enforcement,” and he did not raise the argument in his brief. As
such, we consider only whether New York Penal Law § 265.01(1) provides “people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits.” Thibodeau, 486
F.3d at 65, 67.

        “[O]ne whose conduct is clearly proscribed by the statute cannot successfully challenge it
for vagueness.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993). “In reviewing a
statute’s language for vagueness, ‘we are relegated . . . to the words of the ordinance itself, to the
interpretations the court below has given to analogous statutes, and perhaps to some degree, to
the interpretation of the statute given by those charged with enforcing it.’” VIP of Berlin, LLC v.
Town of Berlin, 593 F.3d 179, 186 (2d Cir. 2010) (quoting Grayned v. City of Rockford, 408 U.S.
104, 110 (1972)).

        The statute at issue here explicitly proscribes the possession of “any firearm, . . . plastic
knuckles, metal knuckles, . . .” N.Y Penal Law § 265.01(1) (emphasis added). The use of the
word “any” before the list of prohibited items highlights the fact that there may be more than one
type of “metal knuckles” covered by the statute and that possession of “any” of them would be
unlawful.

        Further, a New York state court has already considered whether a cat keychain identical
to the black cat keychain at issue here constituted “metal knuckles” under Section 265.01(1).
Though decided after Small’s arrest, in People v. Laurore, 926 N.Y.S. 2d 346, 2011 WL 903184
(N.Y. Sup. Ct. Feb. 15, 2011) (table), the Supreme Court of Rockland County persuasively
concluded that the cat keychain was a set of “metal knuckles” and was proscribed by the statute:

       The object has two holes for the fingers and two pointed metal spikes 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.

Laurore, 2011 WL 903184, at *3.

        In a vagueness challenge, the relevant inquiry is “whether the language conveys
sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices.” VIP of Berlin, 593 F.3d at 187 (internal citation omitted). Here,
Small has not raised a genuine dispute as to why the statutory language prohibiting the
possession of “any . . . metal knuckles” would not convey sufficiently definite warning that the
black cat keychain—a metal tool advertised as a “weapon” with finger holes that “packs a
mighty punch!”—fits within the conduct proscribed by New York Penal Law § 265.01(1).

        Thus, for the reasons set forth by the court in Laurore and based on the plain language of
Section 265.01(1), the black cat keychain fits within the statutory definition of “metal knuckles,”
and Small’s possession of the black cat keychain was clearly proscribed under Section
265.01(1). As such, the statutory term is not unconstitutionally vague as applied to Small, and
we affirm the district court’s grant of summary judgment on this basis.

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Accordingly, the judgment or order of the district court hereby is AFFIRMED.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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