At the trial that was held almost two years ago (January 9-12, 2017, see below for my opening statement), I offered expert testimony from Kevin Orcutt and Chris Pellitteri, plus sales statistics from a martial-arts-equipment supplier, all in an attempt to show that the nunchaku is “commonly used for lawful purposes,” including police use, self-defense, and recreational martial-arts use. See my Proposed Findings of Fact and Conclusions of Law submitted March 2, 2017. On July 23, 2017, the Court issued a decision declining to grant declaratory judgment in my favor without first allowing the defense an opportunity to supplement the record. This included an opportunity for additional briefing by both sides. (My August 24, 2018, brief is here.) On October 1, 2018, the Court sua sponte amended its July 23, 2017, decision and requested responsive letters from each side. The October 1, 2018, memorandum and order (10/18 M&O), followed by my November 12, 2018, letter, followed by a corrected copy of the 10/18 M&O (see footnote 1 in my letter for the location of the corrected error within the 10/18 M&O), are compiled as a single pdf document here.
Oral argument is scheduled for Wednesday, December 5, 2018, at 11:00 am in Courtroom 4F at 225 Cadman Plaza East, Brooklyn.
November 19, 2018
Opening statement by Jim Maloney (January 9, 2017)
The trial we are about to begin concerns the right of the people to keep and bear arms. As recently as ten years ago, the Supreme Court still had not given meaning and content to the provision in the Constitution that sets forth that right, although the Second Amendment has been part of our Constitution since 1791. Today, the balance between the exercise of that right and the recalcitrant plague of gun violence in America is finally beginning to be worked out. It will probably take decades for the courts and the legislatures to strike that balance in a way that protects us all from such horrific incidents as mass shootings at schools, movie theaters, and airports, while at the same time guaranteeing that the Second Amendment, which was first applied to the states only 6½ years ago in McDonald v. Chicago, is given real meaning and substance. Actually, we may never get it right, but I try to be an optimist, because I believe that the “path of the common law,” as Justice Oliver Wendell Holmes Jr. put it, is also, as Carlos Castañeda put it through his character Don Juan, a “path with heart.” Nothing in this case has anything to do with guns, or with carrying weapons on the street, or with mass shootings at schools, movie theaters, or airports. And yet, this case has everything to do with all of those things, because the path of the common law is also in some ways like the path of a particle in a quantum physics experiment: it travels in many different directions, all at once, because precedents are often applied in ways that aren’t always foreseen, or even reasonably foreseeable, when they’re made. So there is actually a lot more at stake here than might meet the eye at first glance. Can we get it right? Well, we can try. Right now the only question before us is whether the nunchaku, an ancient martial arts weapon, is commonly used for lawful purposes today. In a few years, the key Second Amendment questions may be somewhat different, so I ask the Court to be patient if it appears that at times I am straying from the path the Court has defined in order to establish a record that may become relevant down the road. And I also ask the Court to remember that the relief I’m seeking here, and have been seeking for nearly 14 years now, is real, and personal, separate and apart from all those big-picture considerations I’ve just described. But I have a duty, I think, to try to address both. Is it possible for me, one human being, acting alone, to fulfill that duty? No.
In 2000 and 2002, New York’s Attorney General Eliot Spitzer settled civil cases he had brought against two out-of-state suppliers of nunchaku. In his 2002 press release, he stated: “Weapons like these ... have no place on our streets or in our homes.”
One of the conditions of settlement was that the companies had to provide the Attorney General with a list of the names and addresses of all NY customers who had received any of the companies’ “prohibited items” (which included “blackjacks, chuka sticks, slingshots and Kung Fu throwing stars”). The companies then had to mail all those customers notices advising them to turn the “prohibited items” over to the police. These notices further advised the addressees that “law enforcement officials have been provided with a list of consumers who received prohibited items.” Click here to view the form of the “IMPORTANT CONSUMER NOTICE” that the companies were forced to send to all NY purchasers in order to settle the Attorney General’s civil suits.
From 2003 to 2006, another Long Island man was prosecuted for having been in possession of nunchaku in his home. Aramis Sostre lived in a private home in Brentwood, NY, with his wife and children. His wife ran a home-based Avon business; customers frequently visited the house. After observing this activity, police obtained the testimony of a “confidential informant” regarding an alleged drug purchase there, conducted further investigation, and obtained a warrant to search the Sostre home, which they executed by surprise. The January 2003 “raid” by numerous police officers was, according to the federal civil complaint, supplemented by drug-sniffing dogs, but no drugs or drug paraphernalia were ever found. Instead, police discovered a pair of forbidden “chuka sticks” in Mr. Sostre’s closet, and he was charged with misdemeanor possession. It was the only criminal charge lodged against Mr. Sostre, but remained pending for more than three years before its disposition in March 2006 as an ACD (adjournment in contemplation of dismissal).
Already this year (2009), at least one more New Yorker, John Vecchiarello, was prosecuted for having been in possession of nunchaku in his home when police this May found a new pair that he had bought (still wrapped in plastic packaging) sitting atop his safe. As with Mr. Sostre, misdemeanor possession of “chuka sticks” was the only criminal charge lodged against Mr. Vecchiarello. [UPDATE: Another prosecution for simple in-home possession resulted in a conviction in 2013, and has given rise to a new federal case that has been stayed pending the outcome of Maloney v. Rice. Opinion here.]
In August 2000, police came to my home after a telephone company employee claimed that I had pointed a rifle at him from within my home. (There was a telescope involved, but no rifle.) When police arrived, they had neither a search warrant nor an arrest warrant, so I refused them entry. As a result, the situation escalated, and a team of police surrounded my home, cut off my phone lines, and persisted for twelve hours in demanding that I exit my home and surrender. They never obtained a warrant during that entire time. Nevertheless, after twelve hours, myself and my family worn out, I stopped asserting my constitutional right under Payton v. New York, 445 U.S. 573 (1980), of which I was well aware at the time, and came outside peacefully. In my absence, the police searched my home, finding my nunchaku under a couch.
I was never charged with resisting arrest, nor indeed with any “intent” crime (other than the alleged “menacing” of the phone worker, which was ultimately dismissed separate and apart from any plea bargaining), but the nunchaku found in my home gave rise to a misdemeanor possession charge against me that was not resolved until January 2003, when I pled guilty to a violation (not a crime), upon which all charges were dismissed.
Less than a month later, in February 2003, I commenced the federal constitutional challenge that was originally titled Maloney v. Spitzer, was later renamed Maloney v. Cuomo, and is now known as Maloney v. Rice. In the case, I sought (and continue to seek) a declaration that the criminalization of the mere possession of nunchaku in one’s own home is unconstitutional.
As the District Court noted in its reported opinion, Maloney v. Cuomo, 470 F. Supp. 2d 205 (E.D.N.Y. 2007), “The criminal charge for possession of nunchaku was based solely on in-home possession, and not supported by any allegations that the plaintiff had used the nunchaku in the commission of a crime; that he carried the nunchaku in public; or engaged in any other prohibited conduct in connection with said nunchaku. Thus, the only criminal activity alleged against the plaintiff was his possession of the nunchaku in his home.” In that same opinion, the District Court ultimately decided that neither the Second Amendment nor any other federally guaranteed right prevented New York from defining the mere possession of nunchaku in one’s own home as a crime punishable by up to a year in prison. The Second Circuit affirmed that decision in January 2009. Supreme Court review has been sought in a petition for certiorari that counsel filed on my behalf on June 26, 2009. As I write this post on July 4, 2009, we remain hopeful that the United States Supreme Court will review the case. [UPDATE: In June 2010, the Supreme Court granted certiorari, vacated the judgment of the Second Circuit, and remanded for further consideration in light of McDonald v. Chicago. The case is now once again before the District Court as Maloney v. Singas. A trial was held in January 2017, albeit without final results. See “The Eighth Post,” above.]
The nunchaku is perceived radically differently among different people. To some, like Richard Ross, the New York Assemblyman who introduced the total ban, it was perceived as nothing other than an instrument of mayhem and murder with “no purpose other than to maim, or in some instances, kill.” To others, such as the judges of the Supreme Court of Hawaii in State v. Muliufi, 64 Haw. 485, 643 P.2d 546 (1982), “nunchaku sticks, as used in the martial arts, are socially acceptable and lawful ... especially here in Hawaii where the oriental culture and heritage play a very important role in society.”
To the casual reader of page 51 (“CLINICAL NOTES”) from the January 1988 issue of the medical journal Clinical Pediatrics (click displayed image for access to article online), a nunchaku would seem to have once been the cause of a skull fracture in a 10-month-old girl. But on closer reading, it becomes clear that the girl actually fractured her skull by falling and hitting a hardwood floor. While it is true that she fell because she was hit in the face by one stick that had come flying away from a homemade nunchaku that had been in the hands of her 11-year-old brother, that blow caused only swelling and a contusion. More to the point, any flying object--a ball, a frisbee, a champagne cork, etc.--could just as easily cause a 10-month-old standing on a hard surface to fall and sustain a head injury in the process. To blame the nunchaku, rather than the brother or even to some extent the parent(s), would make no sense, but the one-page article prudently concludes with warnings as to the capability of the weapon in expert hands and the possibility of its being overlooked as a potential danger in the hands of the untrained.
“Urban legends” persist that when these “deadly sticks” are being swung around, bones (including skulls) can be fractured with ease, even accidentally. The false underlying premise is that the centrifugal force generated is so great that the swinging stick will shatter or demolish any object it hits. In truth, unless certain nuances of striking are learned, the stick will much more readily tend to bounce or recoil off hard objects like bones.
Although not as effective for offensive purposes as a baseball bat, the nunchaku is well-suited for non-lethal defensive purposes, particularly against unarmed attackers or those with edged weapons. As I explained to the District Court in a brief in 2006, burglars and other persons illegally entering homes commonly attack the occupants with knives, either brought in from outside or obtained from within the victims’ own homes (typically the kitchen). The late George Harrison of The Beatles was stabbed several times (including one chest wound that collapsed a lung) in 1999 by one such intruder/assailant, Michael Abrams, who invaded the Harrisons’ home. But the odds of that happening to me are pretty slim, and having a loaded firearm next to my bed, with all the risks that entails, isn't really called for. I'd sleep a bit easier if I were allowed to have a pair of nunchaku tucked under my mattress so that I'd have a better fighting chance if I were to wake up in the middle of the night to the sound of an intruder. An important further advantage from a humanitarian perspective is that the use of nunchaku would permit self-defense without resort to lethal force. (It should be borne in mind that many home invasions are committed by mentally ill persons who would not necessarily be intimated by a loaded gun but who certainly do not deserve to die as a consequence of their disease.)
Many people have heard of the Teenage Mutant Ninja Turtles member Michelangelo (left), who ably wields two sets of nunchaku simultaneously. Perhaps fewer are familiar with Napoleon Dynamite, who speaks highly of his own “numchuck skills.” Because skilled nunchaku twirling creates an amazing visual effect, twirling with special lighting accessories has become a special visual art form. Moving over to the more serious martial-arts aspects, there are, of course, a World Nunchaku Association, a North American Nunchaku Association, and an International Tech Do Nunchaku Association, to name a few. Why all the fascination with a pair of sticks? Read Madhu Bihari’s Ezine article for a clue, or learn about such accomplished nunchaku artists as Jacksonville, Florida’s Lee Barden. (For a discussion of the word “nunchaku” and its variations in popular usage, as well as links to past Black Belt magazine commentary on nunchaku, see Ben Zimmer’s on-line article.) [10/29/2014 UPDATE/NOTE: Today I found this webcomic that has been around since 2010: NUNCHAKU MAN. FURTHER UPDATE: It appears that new comics are no longer being produced, and that the last one was released on 8/27/2015.]
So, the nunchaku, which was transformed some four centuries ago on a faraway island from farm implement to makeshift weapon, now holds a firm and even respectable place in Western culture. As the District of Columbia Court of Appeals noted in 1983: “It is worth making a few further observations about the nunchaku. Like the courts of other jurisdictions, we are cognizant of the cultural and historical background of this Oriental agricultural implement-turned-weapon. We recognize that the nunchaku has socially acceptable uses within the context of martial arts and for the purpose of developing physical dexterity and coordination.” In re S.P., Jr., 465 A.2d 823, 827 (D.C. 1983).
In spite of all this, arguments have already been made and will likely continue to be made that Second Amendment protections should not extend to the nunchaku because it is “dangerous and unusual.”
I began training with the nunchaku just after New York had made doing so illegal (although at the time I had no idea that had happened). I was then a high school student in Fort Lee, New Jersey, and was studying Uechi-Ryu, an Okinawan style of karate. I took a particular interest in the nunchaku because it is a very effective defensive weapon against an attacker armed with a knife. (My father had been stabbed to death about a decade earlier.) In 1976, I began studies at SUNY Maritime College in the Bronx, where I trained with the nunchaku every day in my dorm room. Neither I nor any of my classmates (many of whom came from other states and countries) had any idea that doing so was considered a crime under New York's newly enacted ban. In fact, one year I went to Philadelphia and brought back numerous nunchaku for myself and several classmates of mine who were on the fencing team and wanted to learn nunchaku. We practiced together.
Above are two photos from our summer training cruise of 1979, the last of three before we graduated and became licensed as merchant marine officers.
In 1981, a year after I graduated, I got into some trouble for demonstrating the use of nunchaku in public in New York. That was when I first learned of the state's ban. But I still did not fully appreciate that merely possessing nunchaku even in my own home could subject me to criminal prosecution.
New York first proposed criminally banning the possession or use of nunchaku in 1973, but the ban did not pass until 1974. Notwithstanding the weapon’s history and suitability for non-lethal defensive use, state legislators concluded that “chuka sticks” were “designed primarily as a weapon [that] has no purpose other than to maim, or in some instances, kill.” See, e.g., Letters of Richard C. Ross and others, 1974. There was an important minority view, however. Archibald Murray of the State of New York’s Executive Department's Division of Criminal Justice Services wrote a memo to the Governor's office that questioned the proposed legislation. Mr. Murray noted that nunchaku have peaceable and non-criminal uses in martial-arts training, writing: “In view of the current interest and participation in these activities by many members of the public, it appears unreasonable - and perhaps even unconstitutional - to prohibit those who have a legitimate reason for possessing chuka sticks from doing so.” Mr. Murray also suggested various less restrictive alternatives for regulating illegitimate nunchaku use. The New York County Lawyers’ Association also recommended that the Governor veto the anti-nunchaku bill, noting that the bill would make “mere possession (even absent criminal intent) a criminal offense” and that “a more narrowly drawn statute can be fashioned” to achieve the legislature’s desire “to prohibit the use of nunchakus in criminal conduct.”
But the memoranda from the Division of Criminal Justice Services and the New York County Lawyers’ Association did not stem the tide that favored a total ban on any and all possession of two sticks connected by a cord or chain. The total ban on nunchaku was signed into law on April 16, 1974, and became effective on September 1, 1974. It remains in full force and effect today and has thus far withstood the only constitutional challenge ever brought against it (currently called Maloney v. Rice). Anyone convicted of misdemeanor possession of nunchaku (even in his or her home) may be sentenced to up to a year in prison. [UPDATE: In late 2013, Nuccio v. Duve, a new case challenging the in-home ban, was brought in the United States District Court for the Northern District of New York. The Court's March 16, 2015, decision, staying that case until the older nunchaku case has reached final resolution, is here.]
It is widely accepted as historical fact that the nunchaku was adapted for use as a weapon by the people of Okinawa as part of the development of karate during the early 17th Century, after the Japanese invaded the island in 1609 and banned the possession of traditional weapons such as sword and spear. See Stephen P. Halbrook, "Oriental Philosophy, Martial Arts and Class Struggle," 2 Social Praxis 135, 139 (1974) (noting that the invading regime "banned all weapons but its own and brutally suppressed the population" and that a "people's revolutionary movement organized clandestinely, and its activities centered around the development of karate for peasant self-defense against the imperial dictatorship"). See also George H. Kerr, Okinawa: The History of an Island People 156-160 (1958) (discussing the invasion).
To suppress the possibility of internal dissent in a type of abuse of power familiar to the American founding fathers from English history, the invading Japanese prohibited the conquered Okinawans from carrying or possessing weapons. See Halbrook; see also Paul Crompton, The Complete Martial Arts 63 (1989). In response, martial-arts systems were developed using non-prohibited items such as farm tools. Nunchaku were among those improvised weapons, evolving from a rice-threshing device or from a crude bridle for an agricultural beast of burden. Although nunchaku can be used offensively, it originated as and is utilized by modern martial artists primarily as a means of self-defense. See, e.g., State v. Muliufi, 64 Haw. 485, 643 P.2d 546, 549 (1982) (noting that “nunchaku [were] originally designed as a farmer’s tool [that] developed into a defensive weapon against the samurai’s sword”); Crompton at 140. Unsurprisingly, nunchaku are also currently used by over two hundred police forces across the United States for control of and/or self-defense against unarmed attackers or even those wielding knives. [2018 UPDATE: In recent years, due to the rising popularity of tasers among police departments, their use of nunchaku (specifically the Orcutt Police Nunchaku, which is effective at controlling suspects without injury) has declined somewhat.]
But in two states, California and New York, ordinary citizens may not even keep nunchaku in their own homes for peaceful martial-arts practice or home defense. Let's take a look at New York...