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. The Attorney General’s Office and I are not moving toward any agreement on the merits of the case: we have simply agreed to disagree (agreeably, I might add) in a manner that (hopefully) will allow the legal questions to be decided more quickly and at less cost to the taxpayers. The treatment of the allegations in the complaint as true for purposes of the Attorney General's motion simply means that the motion will be decided on the basis of the legal (constititutional) issues without engaging in any disputes about the facts as set forth in the complaint.
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 “several BB guns and knives, nunchaku, a wooden stick with the pointed ends of 16 nails protruding from it,” and other items that may have been weapons. The nunchaku was found on David’s bed. The California Superior Court, Santa Cruz County, found that David had illegally possessed a nunchaku. He appealed. The Court of Appeal held that sufficient evidence supported the finding that the juvenile had illegally possessed nunchaku. The California Penal Code, section 12020, states: “(a) Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: (1) Manufactures or ... possesses any ... nunchaku.” There is an exception. Section 12020(b)(3) states: “Subdivision (a) does not apply to any of the following: ... The possession of a nunchaku on the premises of a school which holds a regulatory or business license and teaches the arts of self-defense.” The Appeals Court refused to find this exception applicable in the home, writing: “Under the clear language of the statute the exception only applies to the possession of nunchaku ‘on the premises of a school which holds a regulatory or business license and teaches the arts of self-defense.’ Since appellant possessed the nunchaku at his home we fail to see how this exception applies to appellant.” As noted above, there may be subsequent history on this case (i.e., review and possible reversal by a higher appellate court). In any event, I stand corrected: New York is not the only state that has ever defined and prosecuted simple possession of the nunchaku in the home as a crime. California also has done so, and, like New York, threatens to imprison a person for one year for such possession.
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. Among the legal issues that came up at the conference were whether the Attorney General is the proper party to sue and whether the case is justiciable (i.e., subject to review at this point). Justiciability includes the overlapping concepts of ripeness and standing. I believe that the Attorney General is the proper party and that the case is justiciable because, as set forth at paragraph 16 of the complaint, I must choose between forgoing my right to possess nunchaku in my home and risking criminal prosecution. These issues will be among those resolved when the 12(c) motion is decided, subject, of course, to review on appeal.
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).
SUBSEQUENT UPDATES/BLOGS will no longer be added to this page. Click here for continued UPDATES/BLOGS beginning June 2004.
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