Maloney v. Cuomo
| Decision Date | 17 January 2007 |
| Docket Number | No. 03 CV 0786(ADS)(MLO).,03 CV 0786(ADS)(MLO). |
| Parties | James M. MALONEY, Plaintiffs, v. Andrew CUOMO, in his official capacity as Attorney General of the State of New York, Eliot Spitzer, in his official capacity as Governor of the State of New York, and Kathleen A. Rice, in her official capacity as District Attorney of the County of Nassau, and their successors, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
James M. Maloney, Port Washington, NY, Plaintiff Pro Se.
Andrew Cuomo, State of New York, Office of the Attorney General, by Dorothy O. Nese, Assistant Attorney General, Mineola, NY, for the State Defendants.
Lorna B. Goodman, Nassau County Attorney's Office, by Liora M. Ben-Sorek, Deputy County Attorney, Tatum J. Fox, Deputy County Attorney, Mineola, NY, for the District Attorney.
James M. Maloney, a licensed attorney acting pro se, brought this action against New York State Attorney General Eliot Spitzer, New York State Governor George Pataki (together with Spitzer, the ), and Nassau County District Attorney Dennis Dillon (collectively, the "Defendants"), seeking a declaration that certain provisions of the New York State Penal Law that prohibit the in-home possession of "nunchaku" are unconstitutional.
Presently there are two motions before the Court: (1) a motion by the State Defendants to dismiss the amended complaint for (a) lack Of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."); and (b) failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); and (2) a motion by the District Attorney to dismiss the complaint for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
The following facts are taken from the amended complaint. The plaintiff was born in 1959, making him forty-four years old at the time of the commencement of this action. The plaintiff has been a student of martial arts since approximately 1975. The plaintiff practices several martial arts disciplines, including "Okinawan" styles of karate, "Ving Tsun" or "Wing Chun" style of kung fu, and aikido. Drawing on the various forms of martial arts, the plaintiff developed his own style called "Shafan Ha-Lavan."
The plaintiffs "Shafan Ha-Lavan" martial art incorporates the use of "nunchaku" as a part of the training and technique. "Nunchaku," also referred to as "chuka sticks" or "nun-chuks," is a hand-held weapon, commonly described as being devised of two short sticks of equal length joined by a rope or a chain. The New York criminal statute at issue in this case defines "nunchaku" as follows:
Chuka stick means 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. These devices are also known as nunchakus and centrifugal force sticks.
N.Y. Penal Law § 265.00(14). The plaintiff alleges that he has trained peacefully with the nunchaku since 1975, and has acquired numerous nunchaku during his training. The plaintiff alleges that he only uses the nunchaku within the context of his martial arts training.
On August 24, 2000, the plaintiff was arrested and charged with six violations of the New York Penal Law, including one count of criminal possession of a weapon in the fourth degree for possessing a nunchaku in his home in violation of New York Penal Law § 265.01. This section states, in part:
A person is guilty of criminal possession of a weapon in the fourth degree when:
(1) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, 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). A violation of section 265.01 is a class A misdemeanor.
The criminal charges 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.
On January 28, 2003, the criminal charges against the plaintiff were dismissed. Although the plaintiff does not indicate the reason the charges were dismissed in the amended complaint, the Court is cognizant from the earlier proceedings in this Court that the criminal possession charges were dismissed in exchange for the plaintiffs guilty plea to one count of disorderly conduct pursuant to New York Penal Law § 240.20(7). The plaintiff received a conditional discharge with regard to the other pending charges; agreed to the destruction of the nunchaku confiscated at the time of his August 24, 2000 arrest; and paid a fine in the amount of $310.
On February 18, 2003, the plaintiff commenced this action by filing this complaint against the Attorney General and the District Attorney seeking a declaration that sections 265.00 through 265.02 of the New York Penal Law are unconstitutional. Although the plaintiff was charged with violating section 265.01, he is also challenging the constitutionality of section 265.02. Section 265.02 provides that a violation of section 265.01 by a person who has previously been convicted of any crime is a class D felony, rather than a misdemeanor. On April 15, 2003, the plaintiff voluntarily dismissed his cause of action against the District Attorney pursuant to Fed.R.Civ.P. 41(a)(1)(ii), without prejudice. On October 31, 2004, the plaintiff filed a motion for summary judgment against the Attorney General.
On August 31, 2005, the Court issued a Memorandum of Decision and Order denying the plaintiff's motion for summary judgment. The Court held that the plaintiff lacked standing to prosecute this action against the Attorney General. Specifically, the Court stated:
In a case such as this, where a plaintiff seeks a declaration that a particular statute is unconstitutional, "the proper defendants are the government officials charged with the administration and enforcement of the statute." Curtis v. Pataki, No. 96 Civ. 425, 1997 WL 614285, at *5 (Oct. 1, 1997 N.D.N.Y.) (citing New Hampshire Right to Life Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.1996) (citations omitted)). "It is well established in New York that the district attorney, and the district attorney alone, should decide when and in what manner to prosecute a suspected offender." Baez v. Hennessy, 853 F.2d 73, 76 (2d Cir.1988) (citations omitted).
Memorandum of Decision and Order, at 8 (emphasis added). Accordingly, the Court concluded that the plaintiff lacked standing under Article III, section 2 of the Constitution and the Declaratory Judgment Act, 28 U.S.C. § 2201. However, the Court sua sponte granted the plaintiff leave to serve a supplemental summons and amended complaint "against the entity responsible for the potential prosecution of the plaintiff under the statutes in question."
On September 3, 2005, the plaintiff filed an amended complaint naming the Attorney General, the Governor, and the District Attorney as defendants. The plaintiff challenges the constitutionality of New York's ban on the in-home possession of nunchaku.
Rule 25(d) provides that Fed.R.Civ.P. 25(d).
Originally, the amended complaint named former Attorney General Elliot Spitzer, former Governor George Pataki, and former District Attorney Dennis Dillon as defendants. Since the time that the amended complaint was filed, Andrew Cuomo succeeded Eliot Spitzer as Attorney General, Eliot Spitzer replaced George Pataki as Governor, and Kathleen A. Rice succeeded Denis Dillon as the Nassau County District Attorney. Accordingly, the caption on this Memorandum of Decision and Order reflects those substitutions.
Although the plaintiff is proceeding pro se, he is an attorney duly licensed to practice law in the State of New York, the Second Circuit Court of Appeals, and the United States District Court for the Southern and Eastern Districts of New York. The plaintiff's letterhead, which appears on documents he has submitted in this case, states that he is an "attorney at law" and a "proctor in admiralty." In addition to being admitted to practice in the State and federal courts of New York, the plaintiffs letterhead also indicates that he is admitted in New Jersey, the United States Supreme Court, the United States Courts of Appeal for the Second and Third Circuits, the District of New Jersey, the District of Connecticut, the Northern District of Illinois, the Court of International Trade, and the Court of Federal Claims.
Although the Court normally will hold the pleadings of a pro se plaintiff to a less rigorous standard of review than pleadings drafted by counsel, as an experienced attorney the plaintiff's papers in this case are not entitled to such special consideration. See Goel v. U.S. Dept. of Justice, No. 03cv0579, 2003 WL 22047877, *1 (S.D.N.Y. Aug.29, 2003); Kuriakose v. City of Mount Vernon, 41 F.Supp.2d 460, 465 (S.D.N.Y.1999); Guardino v. Am. Say. & Loan Ass'n of Fla., 593 F.Supp. 691, 694 (E.D.N.Y.1984).
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