Maloney v. Singas, 03-CV-786 (PKC)(AYS)

351 F.Supp.3d 222

James M. MALONEY, Plaintiff,

v.Madeline SINGAS, Nassau County District Attorney, Defendant.

03-CV-786 (PKC)(AYS)

United States District Court, E.D. New York.

Signed December 14, 2018

Gary L. Donoyan, Law Office Of Gary L. Donoyan, Manhasset, NY, James M. Maloney, Law Office of James M. Maloney, Port Washington, NY, for Plaintiff.

Liora M. Ben-Sorek, Ralph J. Reissman, Donald J. Berk, Nassau County Attorney's Office, Mineola, NY, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PAMELA K. CHEN, United States District Judge

Plaintiff James M. Maloney, a pro se attorney and amateur martial artist, brings this action against Defendant Madeline Singas, in her capacity as the Nassau County District Attorney, seeking a declaration that New York State's 1974 ban on the possession of chuka sticks,¹ also known as nunchaku, is unconstitutional under the Second Amendment. Based on its review and consideration of the evidence introduced at trial and the parties' post-trial submissions, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

PROCEDURAL HISTORY

I. Initial Proceedings

Plaintiff filed his initial complaint in this action on February 18, 2003 (Dkt. 1) and First Amended Complaint on September 3, 2005 (Dkt. 42). The Honorable Arthur D. Spatt dismissed the First Amended Complaint in 2007, Maloney v. Cuomo , 470 F.Supp.2d 205 (E.D.N.Y. 2007), and the dismissal was affirmed by the Second Circuit in 2009, Maloney v. Cuomo , 554 F.3d 56 (2d Cir. 2009). However, in light of its decision in McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (applying the Second Amendment as against the States through the Fourteenth Amendment), the United States Supreme Court vacated the Second Circuit's judgment and remanded the case to the Second Circuit for further consideration. Maloney v. Rice , 561 U.S. 1040, 130 S.Ct. 3541, 177 L.Ed.2d 1119 (2010). The Second Circuit subsequently vacated the district court's decision and remanded the case to the district court. Maloney v. Cuomo , 390 F. App'x 29 (2d Cir. 2010).

II. Second Amended Complaint

Plaintiff filed the Second Amended Complaint, the operative complaint in this action, on October 22, 2010. (Dkt. 116.) On April 23, 2013, this action was transferred from Judge Spatt to this Court. (04/23/13 docket entry.) Following the completion of discovery, both parties moved for summary judgment. (Dkts. 139, 140.) On May 22, 2015, the Court dismissed two of Plaintiff's three constitutional claims, leaving only the instant Second Amendment challenge to proceed to trial. Maloney v. Singas , 106 F.Supp.3d 300 (E.D.N.Y. 2015).

III. Bench Trial in 2017 and 2018

The Court held a bench trial from January 9 to 12, 2017. (Dkts. 180, 181, 182.) At trial, Plaintiff presented the following evidence: (1) Plaintiff's own testimony about his history of nunchaku use; (2) testimony of retired Sergeant Kevin Orcutt of the Denver Police Department about his patented nunchaku, the Orcutt Police Nunchaku ("OPN"), which is used exclusively by law enforcement agencies; (3) purported expert testimony of a martial arts school ("dojo") operator, Christopher Pellitteri; (4) testimony of Susan Saraceni, Chief Financial Officer of Asian World of Martial Arts ("AWMA"), a martial arts weapons distributor, discussing AWMA's sales data; and (5) exhibits documenting various forms of martial arts practice that incorporate the use of nunchaku and AWMA's sales data for nunchaku. At trial, Defendant presented: (1) the testimony of Catherine Rice, an employee of the Nassau County Internet Technology Department, who testified about Nassau County's nunchaku crime statistics, and (2) exhibits documenting the legislative history of New York Penal Law § 265.01(1) and Federal Bureau of Justice statistics on weapons used in crimes.

Following the trial, the parties submitted Proposed Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52. (Dkts. 184 (Plaintiff), 185 (Defendant).) However, after reviewing the trial record and the parties' post-trial submissions, the Court determined that both parties had neglected to consider the Second Circuit's leading case on Second Amendment challenges, New York State Rifle & Pistol Association, Inc. v. Cuomo ("NYSRPA "), 804 F.3d 242 (2d Cir. 2015), which was decided after the Court's summary judgment ruling, but before trial. (Dkt. 188.) In NYSRPA , the Second Circuit, inter alia , clarified that the government bears the burden of proving that the activity that is the subject of the challenged legislation falls outside the scope of the Second Amendment. 804 F.3d at 257 n.73 (explaining that the Supreme Court in District of Columbia v. Heller ("Heller" or "Heller I"), 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)"identifies a presumption in favor of Second Amendment protection, which the State bears the initial burden of rebutting").

On July 23, 2017, the Court issued an order notifying the parties that because of their oversight regarding NYSRPA , they had litigated the case at the bench trial using the wrong burden of persuasion. (Dkt. 188.) The Court also admonished the parties for not addressing the level of constitutional scrutiny to be applied to Plaintiff's claim in their post-trial briefing. (Id. at 4, 6–7.) The Court re-opened the trial to allow the parties to conduct additional discovery and to supplement the evidentiary record at trial to address these errors. (Dkts. 188, 191, 192, 193.) In the end, the parties chose to stipulate to the admission of additional documentary evidence offered by each side and to supplement the trial record solely with paper exhibits and argument, and no additional live testimony. (Dkts. 195, 196, 199, 202, 203, 204, 206.) Plaintiff's lone additional exhibit was a video of a Subaru commercial in which a child is shown with nunchaku in his backpack. (Dkt. 203.)² Defendant's additional evidence included: (1) legislative history materials of New York Penal Law § 265.01 ; (2) sales data for nunchaku from five additional manufacturers; and (3) a response to Plaintiff's Subaru commercial. (Dkts. 199, 199-1, 199-9, 199-10.)

On October 1, 2018, after receiving the parties' supplemental trial submissions, the Court sua sponte amended its July 23, 2017 order to further clarify the applicable burden of persuasion. Maloney v. Singas , No. 03-CV-786 (PKC)(AYS), 2018 WL 4771900, at *1 (E.D.N.Y. Oct. 1, 2018). The Court explained that, with respect to the threshold issue of whether the possession of nunchaku falls outside the scope of the Second Amendment, Defendant cannot meet her burden simply by demonstrating that nunchakus are not "in common use," but that Defendant must show, at a minimum, that nunchakus are "not typically possessed by law-abiding citizens for lawful purposes." Id. at *1–3.³ The Court permitted the parties to submit supplemental briefing in response to the Court's amended order; that briefing was completed on November 12, 2018. (Dkt. 212 (Plaintiff), 213 (Defendant).) On December 5, 2018, the Court held oral argument ("Oral Argument"). (12/05/18 minute entry.)

FINDINGS OF FACT

I. The Parties

James M. Maloney, appearing pro se , is a solo legal practitioner, an adjunct professor at the State University of Maritime College, and an amateur martial artist. (Trial Transcript ("Tr."), at 11:13–16, 35:14–36:14.)⁴ He has developed his own martial arts style called "Shafan Ha Lavan,"⁵ of which Plaintiff is the only practitioner. (Tr. 36:10–37:11.) Integral to Shafan Ha Lavan is the nunchaku, which is wielded for self-defense, particularly in the home. (Tr. 20:4–22:3, 36:10–37:11, 72:8–73:7.) Maloney wishes to teach Shafan Ha Lavan to his twin sons, but is unable to do so due to New York's nunchaku ban. (Tr. 37:14–38:18.)

Madeline Singas, who is being sued in her official capacity, is the current Nassau County District Attorney. See Nassau County District Attorney, Meet the District Attorney , http://www.nassauda.org/9/Meet-the-District-Attorney (last visited December 14, 2018).

II. The Nunchaku Ban: New York Penal Law § 265.01(1)

Since 1974, New York has had a complete ban on the possession of nunchaku by private citizens. (Dkt. 184, at 2; see generally Dkt. 199-1.) New York Penal Law § 265.01(1) (" Section 265.01(1)") criminalizes possession of nunchaku, along with a host of other banned weapons, as a Class A misdemeanor. "A person is guilty of criminal possession of a weapon in the fourth degree when: (1) [h]e or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick , sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or ‘Kung Fu star.’ " N.Y. Penal Law § 265.01(1) (emphasis added); see also N.Y. Penal Law § 265.00(14) (defining "chuka stick" as "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 or choking"). The ban on nunchaku arose out of a concern that, as a result of the rising popularity "of ‘Kung Fu’ movies and shows," "various circles of the state's youth"—including "muggers and street gangs"—were "widely" using nunchaku to cause "many serious injuries." (Dkt. 199-1, at ECF⁶ 4–5 (letter from New York Attorney General Louis J. Lefkowitz, dated April 8, 1974); id. at ECF 17 (letter from New York State District Attorneys Association, dated April 1, 1974).)⁷ New York Penal Law § 265.10 criminalizes the manufacture, transport, and disposal of nunchaku as a Class A misdemeanor. Section §§ 265.10(1), (2), & (4).

III. Nunchaku Usage

A. The Purpose of...