The Eighth Post (Updated Frequently)

Dear nunchakulaw followers: Please watch the new, temporarily embedded video shown below to learn about the "gravity knife" enforcement situation in New York City. Please also note that the bill that Governor Cuomo most recently vetoed (shown briefly in one scene at 4:03-4:07) would have amended the statute to define a "gravity knife" as "any knife which has a blade which is released from the handle or sheath thereof solely by the force of gravity which, when released, is locked in place by means of a button, spring, lever or other device." The new definition simply eliminated the "centrifugal force" alternative and would have defined a "gravity" knife as one that opens by the force of gravity. (Gee, I can see why the Governor had to veto THAT!)  The video also says (1:54-2:00) that the current statute has been interpreted to mean that "any knife that can be opened with a single wrist-flick is potentially illegal." But what the video does not mention is that such an opening upon a "single wrist-flick" may occur AFTER several unsuccessful tries by the arresting officer, and, most importantly, that there is absolutely no requirement that the officer state in the criminal complaint how many tries it took! In the case of a client of mine, all witnesses to the police stop swore that it took four or five tries before the knife opened, but my client was still charged with a misdemeanor simply for having the knife, a Spyderco® Endura 4 that he used for work, clipped to his pocket, with no criminal intent whatsoever to use it illegally. Since February 2015, I have been seeking a judicial declaration that unless such a knife opens on the first wrist-flick, it may not be the basis for a criminal prosecution.  (That case was recently stayed pending the Second Circuit's determination of the pending appeal in the Copeland (formerly Knife Rights) case that is the subject of the video.)

Last Year's News in the Nunchaku Case:

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 CastaƱeda 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.

Recent News (updated March 8, 2018)

At the trial that was held January 9-12, 2017, I offered expert testimony from two witnesses other than myself and statistics from a martial-arts-equipment supplier 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 ruling declining to grant declaratory judgment in my favor without first allowing the defense an opportunity to supplement the record. This will include an opportunity for the defense to offer additional evidence to rebut the presumption in favor of Second Amendment protection that, per the Judge's ruling, now exists under current case law. At a telephone conference held September 27, 2017, it was agreed that the trial would be continued starting June 4, 2018.  At a telephone conference held on March 8, 2018, that date was confirmed, and a joint pretrial order is to be submitted by May 23, 2018.