James M. Maloney, an attorney at law admitted to practice before this
Honorable Court, proceeding pro se, as and for his complaint against
the above-named defendants in their official capacity, hereby affirms under
penalty of perjury as follows:
PARTIES
1. At the commencement of this action and at all times hereinafter
mentioned, Plaintiff was and is a natural person, a citizen of the United
States, and a resident of the State of New York, of the County of Nassau, and
of this District.
2. At the commencement of this action and at all times hereinafter
mentioned, Defendant ELIOT SPITZER was a natural person and was the Attorney
General of the State of New York, with offices within this District located at
Mineola and Hauppauge, and Defendant DENIS DILLON was a natural person and was
the District Attorney of the County of Nassau (hereinafter, the “District Attorney”),
with offices within this District located at Mineola.
JURISDICTION AND VENUE
3. This action arises under the Constitution of the United States. This
Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and has the
power to render declaratory judgment, the only relief sought herein, pursuant
to the provisions of 28 U.S.C. § 2201.
4. Venue is properly placed in the United States District Court for the
Eastern District of New York pursuant to 28 U.S.C. § 1391(b).
GENERAL BACKGROUND
5. On or about August 24, 2000, Plaintiff possessed in his home one or more
martial arts devices known as nunchaku or “chuka sticks,” consisting of
foot-long wooden sticks connected by a cord, the possession of which is defined
as a crime by sections 265.00 et seq. of the Penal Law of the State of
New York, as more fully appears herein.
6. On or about August 24, 2000, The People of the State of New York charged
Plaintiff with one count of criminal possession of a weapon in the fourth
degree, a Class A misdemeanor defined at section 265.01 of the Penal Law of the
State of New York, based on Plaintiff’s possession within his home of a
nunchaku that was seized by Nassau County Police while Plaintiff was absent
from his home.
7. The aforementioned criminal charge for possession of a nunchaku was based
solely on allegations of simple possession of said nunchaku in Plaintiff’s
home, and was not supported by any allegations that Plaintiff had: (a) used
said nunchaku in the commission of a crime; (b) carried the nunchaku in public;
or (c) engaged in any other improper or prohibited conduct in connection with
said nunchaku except for such simple possession within his home, nor is any
such conduct an element of the defined crime.
8. The aforementioned criminal charge for possession of a nunchaku remained
pending against Plaintiff for a period of approximately 29 months, until it was
eventually dismissed on or about January 28, 2003.
9. Upon information and belief, said dismissal was not based on any explicit
or implicit recognition by the District Attorney that said statutes, as applied
against Plaintiff and defining as a crime the simple possession of nunchaku
within one’s home, are or were unconstitutional.
PLAINTIFF’S BACKGROUND AND
STANDING TO SUE
10. Plaintiff has been a student of the martial arts since approximately
1975, when he began studying Uechi-Ryu, an Okinawan style of karate, under the
tutelage of Vincent Pillari in Fort Lee, New Jersey. Plaintiff has subsequently
studied various styles of martial arts, including other Okinawan styles of
karate, the Ving Tsun or “Wing Chun” style of kung fu, and aikido. Drawing from
these and other influences, Plaintiff formulated his own martial arts style,
known as Shafan Ha-Lavan, beginning in 1998. Shafan Ha-Lavan incorporates the
use of the nunchaku as an integral and essential part of its training and
technique.
11. Since 1975, Plaintiff has trained in a peaceful manner with the
nunchaku, and has acquired numerous nunchaku, which are or were his personal
property.
12. Plaintiff has never used a nunchaku to inflict harm or physical injury
on another human being or on an animal, and has used nunchaku only for socially
acceptable purposes within the context of martial arts, and to develop physical
dexterity and coordination.
13. Plaintiff first became interested in the nunchaku, and began training
with it in 1975, in part because the weapon is particularly effective in
defense against an assailant armed with a knife or other sharp instrument, and
in part because Plaintiff’s father, John Maloney, had been fatally stabbed in
1964, when Plaintiff was five years old.
14. Since 1980, Plaintiff has served honorably as, and remains, a
commissioned officer in the U.S. Naval Reserve. From 1986 to 1995, he served as
a paramedic in New York City’s 911 Emergency Medical Services system, and
observed numerous instances of serious injury or fatality due to wounds
inflicted by assailants armed with knives and other sharp instruments.
15. Plaintiff has ties to and roots in the State of New York (including
being licensed to practice law in all of the State’s courts and in four federal
courts sitting therein, consisting of two District Courts, the Court of Appeals
for the Second Circuit, and the Court of International Trade) and cannot
conveniently relocate, nor does he wish to do so.
16. Because Plaintiff was charged with a Class A misdemeanor for the simple
possession of a nunchaku in his own home, and for more than two years lived
under the constant threat of being imprisoned for up to one year in punishment
therefor, Plaintiff must reasonably either: (1) forgo possession of any
nunchaku within his own home; (2) move from the State; or (3) risk being the
target of another prosecution for disobeying the same law.
17. Plaintiff accordingly has standing to seek declaratory judgment on the
question of the constitutionality of those New York statutes that criminalize
the simple possession of nunchaku within one’s home, as those statutes have
been applied to prosecute Plaintiff.
THE NUNCHAKU AND ITS REGULATION BY
VARIOUS GOVERNMENTS
18. Upon information and belief, the nunchaku was originally an agricultural
implement used for threshing rice, and was developed centuries ago for use as a
weapon on the island of Okinawa after invading oppressive governments attempted
to disarm the people there.
19. Upon information and belief, the nunchaku had already been used as an
“arm” or weapon for the common defense, by the citizens’ militias of Okinawa,
well before the dates of the ratification of the United States Constitution and
of the first ten amendments thereto.
20. The nunchaku, unlike most other weapons, including firearms, knives,
swords and all other penetrating weapons, is capable of being used in a
restrained manner such that an opponent may be subdued without resorting to the
use of deadly physical force.
21. The nunchaku, in comparison with most other arms, including firearms, is
relatively safe and innocuous, such that a child or other person untrained in
the weapon’s proper use would be unable to inflict serious injury upon him- or
herself, either accidentally or intentionally.
22. Accordingly, nunchaku kept in the home, even if not secured in a locked
compartment, are far less likely to be associated with serious injury or
fatality than are most other weapons or even common household objects such as
kitchen knives and scissors.
23. Upon information and belief, the States of Connecticut, Massachusetts
and Pennsylvania all have enacted statutes defining as a crime the possession
of nunchaku in certain places, such as in a vehicle (Connecticut General
Statutes § 29-38), on one’s person in public areas (Massachusetts General Laws,
Chapter 269, § 10), or on school grounds (Pennsylvania Statutes §
13-1317.2(g)).
24. Upon information and belief, no State in the United States, other than
New York, has ever defined and prosecuted as a crime the simple possession of
nunchaku within one’s own home.
25. New York Penal Law § 265.00 (14) (one of two subsections so numbered)
defines a “chuka stick” (i.e., nunchaku) in substantial part as follows: “any
device designed primarily as a weapon, consisting of two or more lengths of a
rigid material joined together by a thong, rope or chain in such a manner as to
allow free movement of a portion of the device while held in the hand and
capable of being rotated in such a manner as to inflict serious injury upon a
person by striking . . .”
26. New York Penal Law §§ 265.01 and 265.02 define the possession of a
“chuka stick” (i.e., nunchaku) as a Class A misdemeanor and as a Class D
felony, respectively, and make no exception from criminal liability for the
simple possession of a nunchaku or “chuka stick” within one’s own home. As
alleged in paragraphs 6 through 8, supra, the District Attorney
interpreted § 265.01 as reaching such simple possession in prosecuting
Plaintiff.
FIRST CAUSE OF ACTION
27. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 26 as if fully set forth herein.
28. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the simple possession of nunchaku within one’s home,
unjustly restrain and deprive Plaintiff and other residents of New York from
pursuing and obtaining happiness and safety.
SECOND CAUSE OF ACTION
29. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 28 as if fully set forth herein.
30. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the practice and display of nunchaku-based martial arts,
violate the provisions of the First Amendment of the Constitution of the United
States.
THIRD CAUSE OF ACTION
31. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 30 as if fully set forth herein.
32. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the simple possession of nunchaku within one’s home,
violate the provisions of the Second Amendment of the Constitution of the United
States.
FOURTH CAUSE OF ACTION
33. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 32 as if fully set forth herein.
34. New York Penal Law §§ 265.00 through 265.02, to the extent that said statutes
criminalize the simple possession of nunchaku within one’s home and thereby
constitute a regulatory taking of private property without just compensation,
violate the provisions of the Fifth Amendment of the Constitution of the United
States.
FIFTH CAUSE OF ACTION
35. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 34 as if fully set forth herein.
36. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes, together with provisions in Article 70 of the Penal Law, permit or
require the imposition of unduly harsh penalties for the simple possession of
nunchaku within one’s home, violate the provisions of the Eighth Amendment of
the Constitution of the United States.
SIXTH CAUSE OF ACTION
37. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 36 as if fully set forth herein.
38. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the simple possession of nunchaku within one’s home and
the peaceful use of such nunchaku therein, violate the provisions of the Ninth
Amendment of the Constitution of the United States.
SEVENTH CAUSE OF ACTION
39. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 38 as if fully set forth herein.
40. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the simple possession of nunchaku within one’s home,
violate the provisions of the Due Process Clause of the Fourteenth Amendment of
the Constitution of the United States.
EIGHTH CAUSE OF ACTION
41. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 40 as if fully set forth herein.
42. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the simple possession of nunchaku within one’s home and do
so without a rational basis for furthering any legitimate state interest,
violate the provisions of the Equal Protection Clause of the Fourteenth
Amendment of the Constitution of the United States.
NINTH CAUSE OF ACTION
43. Plaintiff repeats and realleges each and every allegation set forth in
the foregoing paragraphs 1 through 42 as if fully set forth herein.
44. New York Penal Law §§ 265.00 through 265.02, to the extent that said
statutes criminalize the simple possession of nunchaku within one’s home,
violate the provisions of the Privileges and Immunities Clause of the
Fourteenth Amendment of the Constitution of the United States.
WHEREFORE, Plaintiff respectfully requests that this Court:
(1) assume jurisdiction over this action; and
(2) declare that those portions of sections 265.00 through 265.02 of the New
York Penal Law that define and punish as a crime the simple possession of
nunchaku within one’s home are unconstitutional and of no force and effect.
Plaintiff additionally prays for such other, further, and different relief
as this Court may deem just and proper.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing statements of fact are true and correct to the best
of my knowledge.
Dated: Port Washington, New York
February 18, 2003
/s/
JAMES M. MALONEY (JM-####)
GO TO JAMES M. MALONEY’S HOME PAGE
