Interesting Vagueness Case That the Court Is Being Asked to Hear
Added 06-10-19 05:21:02pm EST - “The underlying subject matter in Copeland v. Vance is knives, and a New York law banning "gravity knives," but the legal issue is what must be shown for a facial vagueness challenge to a criminal statute.” - Reason.com
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In United States v. Salerno, 481 U.S. 739, 745 (1987), this Court held that to maintain a facial challenge, a plaintiff must establish that "no set of circumstances exists under which the Act would be valid." The federal courts of appeals are starkly split on the question of whether this rule was relaxed by the Court in the context of vagueness cases in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
The question presented is: Whether a plaintiff need show that a law is vague in all of its applications to succeed in a facial vagueness challenge.
You can read the government's response, the reply, and the amicus briefs here. (I signed one, though did not write it.) You can also see the debate about whether the case is moot—10 days ago, the New York Legislature repealed the underlying statute, but people could still be prosecuted for their pre-repeal conduct (yes, that's the legal rule in most jurisdictions with regard to statutory repeals), and gravity knives (defined using the same definition that is being challenged as vague) remain forbidden on New York City subways and buses. Very interesting stuff.
Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA and co-founder of the Volokh Conspiracy blog, hosted at Reason.
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