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"Weapons like these . . . have no place . . . in our homes."
--Eliot Spitzer, Attorney General of New York
(CLICK NUNCHAKU AT RIGHT FOR DETAILS)

NOTE (March 8, 2009): The case has now been appealed to and decided by the Second Circuit and will be recaptioned Maloney v. Rice in seeking certiorari. Click here to go to the new homepage, or click here to go to the next succeeding blog page, or click here for links to documents.

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"Liberty protects the person from unwarranted
government intrusion into a dwelling or other private
places. In our tradition the State is not omnipresent
in the home."

--Supreme Court of the United States (Lawrence v. Texas)
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Since 1974, the possession of nunchaku, a martial-arts weapon consisting of two hardwood sticks connected by a cord, rope or chain, has been defined as a crime in the State of New York. The mere possession of a nunchaku within one's own home for peaceful use in martial-arts practice by a person with no criminal record is classified as a misdemeanor that may carry up to a one-year prison sentence. Possession by a person with a criminal record is defined as a felony.

 

The draconian nature of these laws is made all the more ironic by virtue of the historical fact that the nunchaku, which was originally a farm implement used for threshing rice, was adapted for use as a weapon by the People of Okinawa after invading oppressive governments disarmed them, making it illegal to possess a sword or other weapon. Based upon research I have conducted, it appears that New York is the only state in the United States that has ever defined and prosecuted as a crime the simple possession of nunchaku within one's own home. (But see the July 25, 2003, UPDATE/BLOG below.)

 

On February 18, 2003, I brought a constitutional challenge to those provisions of the New York Penal Law that criminalize the mere possession of nunchaku within one's own home. I have raised numerous constitutional bases for this challenge, including but not limited to the Second Amendment's protection of "the right of the People to keep and bear arms." There is currently a great deal of legal and scholarly debate as to whether the Second Amendment confers a personal right to bear arms and, if so, whether that right is applicable against the states or only against the federal government. Virtually all of the other provisions of the Bill of Rights have been incorporated as applicable to protect citizens against abuse by state governments. The Second Amendment is a notable exception.

 

In light of the uncertain success of my Second Amendment challenge, I have also challenged the constitutionality of the New York criminal provisions on other bases, such as the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.

 

The federal case names Eliot Spitzer (the New York Attorney General) and Denis Dillon (the District Attorney for Nassau County) as defendants, and seeks only declaratory relief (i.e., a ruling to the effect that the criminalization of the simple possession of nunchaku within one's home is unconstitutional). No money damages are sought. I am proceeding pro se in order to save myself and (if I am successful) the taxpayers of New York some money: if my challenge is successful, there can be no award of attorney's fees unless I use outside counsel, which I hope to avoid doing.

 

The case is now pending in the Eastern District of New York and has been assigned to Judge Arthur D. Spatt.

 

To view or download a copy of the complaint in pdf or html format, click on one of the hyperlinks below.

 

AMENDED COMPLAINT (PDF) ORIGINAL COMPLAINT (HTML)

 

I will update this page from time to time as the case progresses. In the meantime, I may be reached by telephone at the number shown below.

 

Jim Maloney

February 28, 2003

(516) 767-1395

 

July 23, 2003--UPDATE/BLOG: By Stipulation and Order entered April 15, 2003, the complaint was dismissed as against District Attorney Dillon, leaving Attorney General Spitzer as the only named defendant, on whose behalf Assistant Attorney General Dorothy Oehler Nese filed an answer on May 21, 2003. She and I have jointly sought the court's approval for a briefing schedule for a Rule 12(c) motion for judgment on the pleadings to be made by the defendant. For purposes of such a motion, when made by the defendant, the allegations in the complaint are treated as true. Under our proposed briefing schedule, the motion would be fully briefed by November 30, 2003.

 

July 24, 2003--UPDATE/BLOG: Two further points: (ONE) It has come to my attention that the State of California may have prosecuted a few cases of simple possession of nunchaku in the home in recent years. Although this has no direct relevance to my case, I am investigating the rumor in an effort to be factually accurate in all future papers and to correct any misstatement I may have made to the effect that New York is the only state that has ever done this. (TWO) In response to some commentary about the case I've seen on the Web, I wanted to clarify the meaning of yesterday's update... [THIS UPDATE CONTINUES. CLICK NUNCHAKU AT LEFT FOR PAGE WITH FULL TEXT OF ALL UPDATES THROUGH MAY 14, 2004.]

July 25, 2003--UPDATE/BLOG: I have found one California case in which simple possession in the home was prosecuted. The only information I have at present is from an unreported opinion of the Court of Appeal, Sixth District, California, dated Oct. 15, 2002, which has the Westlaw citation 2002 WL 31315856. The case involved a juvenile and is entitled In re DAVID L. Some of its holdings may have been overturned on appeal. According to the unreported opinion, the facts are as follows: on February 2, 2001, the San Jose Police Department received a call regarding a threat at the home of a juvenile named David. In response, two police officers went to David's house, spoke to him and his sister, and conducted a search. In David's bedroom the officers found... [THIS UPDATE CONTINUES. CLICK NUNCHAKU AT LEFT FOR PAGE WITH FULL TEXT OF ALL UPDATES THROUGH MAY 14, 2004.]

August 12, 2003--UPDATE/BLOG: By mutual request, by myself and Assistant Attorney General Dorothy Oehler Nese, a conference before Magistrate Judge Orenstein scheduled for today has been adjourned until October 3, 2003. Although we have also sought the court's approval for a briefing schedule for a Rule 12(c) motion for judgment on the pleadings to be made by the defendant, the court has yet to approve that schedule. However, we have agreed to go forward, which means that the Attorney General's Office will serve its moving papers by September 30, 2003.

September 23, 2003--UPDATE/BLOG: The conference before Magistrate Judge Orenstein scheduled for October 3, 2003, has been adjourned to October 16, 2003. "No further adjournment will be allowed."

 

October 17, 2003--UPDATE/BLOG: A conference before Magistrate Judge Orenstein took place on October 16, 2003. The Magistrate brought many issues of law to the attention of the parties but refrained from ordering any fact discovery. Discovery is not really needed because there are no significant factual disputes, and the allegations in the complaint are treated as true for purposes of the 12(c) motion (see earlier UPDATES) to be made by the Attorney General by December 1, 2003... [THIS UPDATE CONTINUES. CLICK NUNCHAKU AT LEFT FOR PAGE WITH FULL TEXT OF ALL UPDATES THROUGH MAY 14, 2004.]

 

November 1, 2003--UPDATE/BLOG: At the October 16 conference, Magistrate Judge Orenstein suggested that I write to my legislators suggesting an amendment to the Penal Law provisions that would permit possession of nunchaku in the home. Although I was not convinced that the effort would be fruitful, I did so shortly thereafter, and today received a letter in response from my Assemblyman, Tom DiNapoli. Click here to view or download a copy of that letter in pdf format.

 

February 18, 2004--UPDATE/BLOG: Following some slow initial movement, the AG and I on February 2, 2004, stipulated to the following briefing schedule: 12(c) motion by AG by March 1, 2004; my response by April 1, 2004; reply by AG by May 3, 2004. (Briefs are to be exchanged by those dates and filed on May 3.) Magistrate Judge Orenstein has ordered a conference to take place on May 7, 2004, at 2:30 p.m. Click here for a copy of that scheduling order.

 

April 2, 2004--UPDATE/BLOG: As of the close of business today, the 12(c) motion by the AG that was due on March 1, 2004, has not been received. Meanwhile, Robert Seiden, a former prosecutor, has sworn out an affidavit in another federal case, misrepresenting the scope of my constitutional challenge by stating that I am attempting to have all laws banning nunchaku possesion declared unconstitutional, rather than just the application of those laws to home possession.

 

May 14, 2004--UPDATE/BLOG: The 12(c) motion by the AG not having been made, I have decided to file a Rule 56 motion for summary judgment. I have served the statement of undisputed facts on the AG (click here for a copy). The next conference will be on June 18, 2004 (click here for a copy of that scheduling order).

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