In a counter to Plaintiff's responsive brief to their mootness letter, New York City and DA Vance have hurled a Hail Mary brief at SCOTUS in an effort to defend their mootness claim. It would appear to fail on all accounts.
They claim we did not challenge the MTA regulations in the original or amended complaint. However, that fails because we did challenge the definition of a gravity knife on which any enforcement would necessarily be based and which is the essence of the case.
They claim that the New York Police Department has abandoned the wrist flick test since the repeal, but they present no evidence that is true. More importantly, that claim is irrelevant because a case cannot be mooted simply because a party voluntarily ceases doing something, since they could just resume doing it, should they choose to. There is a specific exception to mootness for mere voluntary cessation.
Finally, they claim that the fear of prosecution over past actions is unfounded speculation, however that is inconsistent with the DA's past conduct. Further, the fact that they might bring such a prosecution, as they have in the past, is enough to keep the case alive.
The Supreme Court is scheduled to take up the petition in conference tomorrow, the 13th. At that time they will decide to take the case, decline the case, or put off a decision. It will be Monday, June 17, before they post the results of the conference.
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