Maloney v. Singas
MEMORANDUM & ORDER: The Court DENIES summary judgment to both parties (Plaintiff's Motion #131 , Defendant's Motion #137 ) on Count One of the Second Amended Complaint challenging New York Penal Law Section 265.01. This claim shall proceed to trial. The parties shall file a proposed joint pre-trial order on or before 7/6/15, 45 days from the date of this Order.The Court GRANTS summary judgment to the District Attorney on Count Three of the Second Amended Complaint. The Court also dismisses Count Two of the Second Amended Complaint for the reasons stated on the record during the October 24, 2013 pre-motion conference and the portion of Count One challenging New York Penal Law Section 265.02 for lack of standing. Ordered by Judge Pamela K. Chen on 5/22/2015. (Chiang, May)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAMES M. MALONEY,
- against -
MEMORANDUM & OPINION
MADELINE SINGAS, in her official capacity
as Acting District Attorney of Nassau County,
Case No. 03 CV 786 (PKC)
PAMELA K. CHEN, United States District Judge:
Since 1974, New York has banned the possession of chuka sticks, a martial arts weapon
consisting of a rope or chain between two sticks. Under New York law, possession of chuka
sticks constitutes a class A misdemeanor. See N.Y. Penal Law § 265.01 (“A person is guilty of
criminal possession of a weapon in the fourth degree when: (1) He or she possesses any . . .
chuka stick . . . .”); id. at § 265.00(14) (defining chuka stick). 1 Plaintiff James Maloney, an
attorney and martial arts practitioner, filed this action in 2003, seeking a declaration that New
York’s ban on the possession of chuka sticks is unconstitutional. Though the Honorable Arthur
D. Spatt dismissed Maloney’s constitutional claims relating to the ban in 2007, and was affirmed
on appeal in 2010, the United States Supreme Court vacated the judgment and remanded the case
later that year for further consideration in light of its decision in McDonald v. City of Chicago,
561 U.S. 742 (2010). See Maloney v. Rice, 561 U.S. 1040 (2010).
“‘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 Court shall refer to chuka sticks and nunchakus interchangeably.
Upon remand, Maloney filed a Second Amended Complaint, adding a Section 1983
claim to his constitutional challenge to the chuka stick ban. The parties now cross-move for
summary judgment. For the reasons set forth below, the Court denies summary judgment to both
parties on Maloney’s Second Amendment claim (Count One), dismisses Maloney’s claim based
on the Ninth and Fourteenth Amendments (Count Two), and grants summary judgment to
Singas, the Acting Nassau County District Attorney (“the District Attorney”), on Maloney’s
Section 1983 due process claim (Count Three).
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the parties’ submissions and prior proceedings in this
case, which are not altered by the vacatur of Judge Spatt’s 2007 decision dismissing Maloney’s
Second Amendment claim. 2
Second Amendment Challenge to New York’s Chuka Stick Ban
Maloney is a long-time practitioner of the martial arts. 3 (Dkt. 136, Declaration of James
M. Maloney (“Maloney Decl.”), ¶ 6; see also Second Am. Compl., ¶¶ 13–14). He asserts, and
the District Attorney does not dispute, that chuka sticks are an integral part of his martial arts
practice and his philosophy of home defense. (Maloney Decl., ¶ 6). In 2000, he was charged
Unless otherwise noted, a standalone citation to a 56.1 Statement denotes that this Court
has deemed the underlying factual assertion undisputed. Any citations to a party’s 56.1
Statement incorporates by reference the documents cited therein. Where relevant, however, the
Court may cite directly to underlying documents. Citations to “ECF” herein refers to the
pagination generated by the Court’s electronic docketing system and not the document’s internal
Maloney is representing himself in this case. Because Maloney is an attorney, Judge
Spatt previously held that Maloney is not entitled to the less rigorous standard of review
ordinarily afforded to pro se plaintiffs. Maloney v. Cuomo, 470 F. Supp. 2d 205, 209 (E.D.N.Y.
2007), aff’d, 554 F.3d 56 (2d Cir. 2009), cert. granted, judgment vacated sub nom. Maloney v.
Rice, 561 U.S. 1040, and vacated, 390 F. App’x 29 (2d Cir. 2010). The Court does not view the
Supreme Court’s vacatur order as disturbing that determination.
with a violation of New York Penal Law § 265.01 (“Section 265.01”) for possessing chuka sticks
in his home. (Dkt. 134, Plaintiff’s Rule 56.1 Statement (“Pl. 56.1”), ¶ 1). 4 The charge against
him was ultimately dismissed in 2003. 5 (See also Second Am. Compl., ¶ 11).
Maloney filed this action shortly after the dismissal of the charge against him. Maloney
initially challenged New York’s prohibition against in-home possession of chuka sticks under the
First, Second and Ninth Amendments of the U.S. Constitution. (See Dkt. 1, Complaint). In
2007, Judge Spatt granted the defendants’ motion to dismiss, disposing of Maloney’s
constitutional challenges to the ban. Maloney, 470 F. Supp. 2d 205.6 Of relevance to the crossmotions currently pending before this Court, the Second Circuit upheld the dismissal of
Maloney’s Second Amendment challenge to the ban because, at the time, the Second
Amendment applied only to limitations the federal government imposed on the right to bear
arms. Maloney v. Cuomo, 554 F.3d 56, 58–59 (2d Cir. 2009). Though the Supreme Court had
Unless otherwise noted, a standalone citation to a 56.1 Statement denotes that this Court
has deemed the underlying factual allegation undisputed. Any citations to a party’s 56.1
Statement incorporates by reference the documents cited therein. Where relevant, however, the
Court may cite directly to underlying documents. Citations to “ECF” refer to the pagination
generated by the Court’s electronic docketing system and not the document’s internal pagination.
As Judge Spatt noted in his earlier decision, the Section 265.01 charge against Maloney
was dismissed in exchange for his guilty plea to one count of disorderly conduct, agreement to
the destruction of his chuka sticks, and payment of a fine. Maloney, 470 F. Supp. 2d at 208.
Notably, Maloney initially named then-Attorney General Andrew Cuomo and thenGovernor Eliot Spitzer as defendants in his suit, but upon their motion, Judge Spatt dismissed
them from the action because Maloney lacked standing to sue them. Maloney, 470 F. Supp. 2d
at 211 (affirming its August 2005 ruling that the Attorney General and Governor are not proper
defendants because Plaintiff has no reasonable fear of prosecution by these officials, as opposed
to the District Attorney, and rejecting Plaintiff’s argument that his request for “contingent
equitable relief” creates standing on Plaintiff’s part against the Attorney General). The Court
does not find that this ruling was disturbed by the vacatur order. Thus, the only defendant
remaining in this case is the District Attorney of Nassau County in her official capacity,
previously Kathleen Rice and now Madeline Singas (who is serving as Acting District Attorney).
The Court has automatically substituted Ms. Singas as the defendant pursuant to Rule 25 of the
Federal Rules of Civil Procedure. Fed. R. Civ. P. 25(d).
recognized an individual right to bear arms in District of Columbia v. Heller, the Supreme Court
had not yet applied that right to the States at the time of Maloney’s challenge. See id. (citing
District of Columbia v. Heller, 554 U.S. 570 (2008)).
Maloney petitioned the Supreme Court for certiorari. While Maloney’s petition was
pending, the Supreme Court heard and decided McDonald v. City of Chicago, 561 U.S. 742
(2010), which applied the Second Amendment right to keep and bear arms to the States. The day
after the decision issued in McDonald, the Supreme Court granted Maloney’s petition, vacated
the Second Circuit’s 2009 decision, and remanded the case to the Second Circuit for further
consideration in light of McDonald. See Maloney, 561 U.S. 1040. The Second Circuit vacated
the judgment of the district court dismissing Maloney’s claims, and remanded Maloney’s case to
this Court for proceedings consistent with McDonald. Maloney v. Rice, 390 F. App’x 29 (2d Cir.
Addition of Section 1983 Claim
Maloney amended his complaint after the Second Circuit remanded his case back to this
Court, adding a claim asserting a deprivation of his due process rights under 42 U.S.C. § 1983.
Count Three of the Second Amended Complaint alleges that, in a brief to the Second Circuit, the
District Attorney unlawfully disclosed the fact that Maloney had been listed on the New York
State Child Abuse and Maltreatment Register (“the Register”). (Second Am. Compl., ¶¶ 54–61;
Pl. 56.1, ¶ 4). 7
Maloney formally brings his claim under 42 U.S.C. § 1983, but his allegation that the
District Attorney violated his due process rights is premised in part on “those rights protecting
the individual from disclosure of statutorily confidential information contained in the [Register].”
(See Second Am. Compl., ¶¶ 58, 60). Maloney’s claim thus references New York Social
Services Law § 422(12), which provides that “any person who willfully permits . . . the release
of any data and information contained in the [Register] to persons or agencies not permitted by
this title shall be guilty of a class A misdemeanor.” N.Y. Soc. Serv. § 422(12).
The District Attorney does not dispute that the “disclosure” was made, but notes that her
brief made such “disclosure” by citing to a 2007 decision by the Honorable Sandra L. Townes in
a separate case filed by Maloney in this Court.
(See Dkt. 138, Defendant’s Rule 56.1
Counterstatement (“Def. 56.1”) at ECF 2 ¶ 4; see also Dkt. 102-1 at ECF 11, Brief of District
Attorney Rice, Maloney v. Cuomo, No. 07-5081-cv (2d Cir. Oct. 25, 2007)). Maloney’s own
complaint in that case, Maloney v. County of Nassau, No. 03 CV 4178 (E.D.N.Y.), included a
claim directly challenging his listing on the Register. See Maloney v. County of Nassau, 623 F.
Supp. 2d 277, 283 (E.D.N.Y. 2007), order clarified on reconsideration, No. 03-CV-4178, 2009
WL 922064 (E.D.N.Y. Mar. 31, 2009). 8
On August 23, 2000, two plainclothes officers went to Maloney’s home to respond to an
allegation by a telephone maintenance worker that Maloney had threatened him with a rifle while
the worker was on Maloney’s property. Maloney, 623 F. Supp. 2d at 280. Although the officers
demanded that Maloney come outside the house, he refused to do so. Id. at 280–81. The officers
summoned additional officers and a hostage negotiation team, and attempted to persuade
Maloney to exit the house. Id. at 281. Maloney finally surrendered 12 hours later. Id. After
Maloney’s surrender, the police entered his home, where they found the chuka sticks that are the
subject of this action. Id.; Maloney, 470 F. Supp. 2d at 207–08.
Because Maloney’s two young sons were home at the time of the incident, the New York
State Office of Children and Family Services (“OCFS”) investigated Maloney for possible child
abuse. Maloney, 623 F. Supp. 2d at 281. An initial report of maltreatment, made on August 28,
2000, was investigated by the Nassau County Department of Social Services. (See Dkt. 116–4 at
ECF 3, In the Matter of the Appeal of James Maloney, Decision After Hearing, State of New
York Office of Children and Family Services, ID 22619 (Sept. 28, 2008)). On April 21, 2001,
the Nassau County Department of Social Services found that “the report against [Maloney] for
inadequate guardianship of [his sons]” was “indicated,” (id.), i.e., that “some credible evidence”
of alleged abuse or maltreatment existed. (Id. at ECF 4 (quoting N.Y. Soc. Serv. § 412(12)).
Maloney requested that the report about him on the Register be amended, but no action
was taken from 2001 through 2003. Four months after Maloney filed Maloney v. County of
Nassau, OCFS scheduled a hearing on his request to amend the report. Maloney, 623 F. Supp.
2d at 296. Maloney elected to proceed with his federal lawsuit, rather than pursue the hearing
before OCFS. After Judge Townes dismissed his claim challenging his listing on the Register, a
hearing was held before OCFS in 2008, roughly seven years after Maloney was first listed on the
Register. Maloney, 2009 WL 922064, at *6. OCFS issued a decision on September 28, 2009,
finding that the Nassau County Department of Social Services “failed to prove by a fair
preponderance of the evidence that [Maloney] had maltreated his children by not allowing the
The District Attorney points out that Maloney’s complaint in Maloney v. County of
Nassau explicitly stated that he “was investigated by the State of New York Office of Children
and Family Services for alleged maltreatment of his two infant sons” and that “said investigation
was deemed ‘Indicated,’ which creates a permanent record . . . indicating that Plaintiff has been
investigated for possible child abuse.” (Def. 56.1 at ECF 3 ¶ 1 (citing Verified Complaint at
¶¶ 32–33, Maloney v. County of Nassau, No. 03 CV 4178)). Judge Townes dismissed Maloney’s
due process challenge to his listing on the Register, finding that his claim was conclusorily pled.
See Maloney, 623 F. Supp. 2d at 299. Furthermore, Judge Townes noted that Maloney could not
adequately plead a due process claim because he had a meaningful post-deprivation remedy
available to him through an Article 78 proceeding in State court.
Id. at 300.
reconsideration of the decision in 2009, Judge Townes noted that Maloney’s claim based on his
listing had become moot because he had received an administrative hearing before OCFS, which
resulted in the amendment of the report against him, from “indicated” to “unfounded.” See
Maloney, 2009 WL 922064 at *1. 9 Maloney does not dispute any of the facts regarding the
proceedings in Maloney v. County of Nassau.
Upon the District Attorney’s filing of the brief to the Second Circuit containing the
information about Maloney’s listing in the Register, Maloney sought to have the brief retracted,
first by requesting that the District Attorney voluntarily retract it and then by filing a motion
before the Second Circuit to strike the District Attorney’s brief. (Pl. 56.1, ¶¶ 5–6; Def. 56.1 at
police officers in to [sic] his home.” (Dkt. 116–4 at ECF 6). OCFS thus changed the report
against Maloney from “indicated” to “unfounded” and sealed the report. (Id. at ECF 7).
(See also Pl. 56.1, ¶ 8 (noting that OCFS’s Bureau of Special Hearings issued a decision
on September 22, 2008 amending the status of the report against Maloney from “indicated” to
“unfounded” and sealing the report).
ECF 4 ¶ 5). The Second Circuit denied Maloney’s motion on November 19, 2008. (Def. 56.1 at
ECF 4 ¶ 5).
Proceedings on Remand
On October 24, 2013, the Court held a pre-motion conference and granted leave to the
parties to file cross-motions for summary judgment on Maloney’s Second Amendment claim and
Section 1983 claim. With respect to Count Two of the Second Amended Complaint, which
asserts a challenge to the chuka stick ban under the Ninth and Fourteenth Amendments, the
Court ruled that the vacatur of the prior judgment in this case did not disturb Judge Spatt’s
findings with respect to the Ninth and Fourteenth Amendments, and directed the parties not to reargue the dismissal of Count Two.
(See Transcript, 10/24/2013 Hearing at 5).
McDonald does not bear on Maloney’s ability to challenge the chuka stick ban under those
provisions, and so Judge Spatt’s prior determination on those points continues to govern. 10
Thus, the Court formally dismisses Count Two of the Second Amended Complaint. 11
Judge Spatt held that the Ninth Amendment could not provide Maloney with a basis for
relief because it is only applicable against federal, not State, actors, and does not confer
substantive rights. Maloney, 470 F. Supp. 2d at 214.
Though Maloney did not initially brief any arguments on Count Two based on the
Court’s direction at the pre-motion conference, he maintains in his Reply that “vacatur is
vacatur.” (Pl. Reply at ECF 8). Contrary to Maloney’s contention that the Court “tabled” the
question of the viability of Count Two at the pre-motion conference (id.), the Court in fact
determined that Count Two is not viable. (See Transcript, 10/24/2013 Hearing at 5 (“COURT: I
believe Judge Spatt has already ruled on the Ninth Amendment issue and the Fourteenth
Amendment issue, as did the Second Circuit on the Fourteenth Amendment issue. I do not
perceive that the Supreme Court decision remanding the case altered either of those findings.”)).
Notwithstanding the Court’s direction at the pre-motion conference, the District Attorney has
moved for summary judgment on Count Two of Maloney’s Second Amended Complaint, stating
that the Deputy County Attorney present at the pre-motion conference had no recollection of the
exchange whereby the Court directed the parties only to brief Counts One and Three of the
Second Amended Complaint. The Court does not consider the District Attorney’s arguments on
this point. (Def. Sur-Reply at ECF 4).
The Court now considers the parties’ motions for summary judgment on Counts One
(Second Amendment challenge to chuka stick ban) and Three (Section 1983 due process
violation) of Maloney’s Second Amended Complaint.
STANDARD OF REVIEW
“Summary judgment is appropriate where there are no genuine disputes concerning any
material facts, and where the moving party is entitled to judgment as a matter of law.” Harvis
Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153
F.3d 61, 67 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R.
Civ. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
“The burden of showing the absence of any genuine dispute as to a material fact rests on
the party seeking summary judgment.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.
1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “In assessing the record
to determine whether there is a genuine issue to be tried as to any material fact, the court is
required to resolve all ambiguities and draw all permissible factual inferences in favor of the
party against whom summary judgment is sought.” McLee, 109 F.3d at 134. Where both parties
move for summary judgment, as Maloney and the District Attorney have done here, “each
party’s motion must be examined on its own merits, and . . . all reasonable inferences must be
drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc.,
249 F.3d 115, 121 (2d Cir. 2001).
The Court’s inquiry upon summary judgment is “determining whether there is the need
for a trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250; see also id. at 251–52 (“In essence, though, the inquiry . . .
[is] whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.”). The substantive law
will determine which facts are material; “only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.” Id.
at 248. Disputed issues of law that present nothing for trial may be appropriately resolved on a
motion for summary judgment. See New York State Rifle and Pistol Ass’n, Inc. v. Cuomo, 990 F.
Supp. 2d 349, 358 (W.D.N.Y. 2013) (“NYSRPA v. Cuomo”) (citations omitted), appeals filed,
Nos. 14–36, 14–37.
Standing To Seek Declaratory Relief
Maloney’s constitutional challenge to New York’s criminalization of chuka sticks seeks
relief under the federal Declaratory Judgment Act. Though New York dismissed the criminal
charge against Maloney, the Court finds that he has standing to seek declaratory relief.
As an initial matter, Judge Spatt previously determined that Maloney had standing to seek
a declaratory judgment against New York’s chuka stick ban because “[he] had already been
arrested once under the allegedly unconstitutional statute, and intends to continue using
nunchuka in his martial arts training, which he considers to be constitutionally protected
activity.” See Maloney, 470 F. Supp. 2d at 207. The Court does not view the vacatur of the
district court judgment to have disturbed Maloney’s standing to challenge New York Penal Law
§ 265.01. Furthermore, Maloney attests here that chuka sticks are “an integral part of [his]
martial arts training and indeed of [his] home defense philosophy” (Maloney Decl., ¶ 6), which
suggests that Maloney either continues to possess chuka sticks or intends to do so in the future.
Maloney’s declaration confirms that he is not simply relying on a past injury but presently risks
prosecution under Section § 265.01 for activity he believes to be protected under the Second
Amendment. See Steffel v. Thompson, 415 U.S. 452, 462 (1974) (finding a federal court may
grant declaratory relief though no state prosecution is pending because otherwise the plaintiff is
“between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he
believes to be constitutionally protected activity in order to avoid becoming enmeshed in a
criminal proceeding.”); McCormick ex rel. McCormick v. School Dist. of Mamaroneck, 370 F.3d
275, 284 (2d Cir. 2004) (“A plaintiff seeking . . . declaratory relief cannot rely on past injury to
satisfy the injury requirement [of Article III standing] but must show a likelihood that he or she
will be injured in the future.”) (citing Deshawn E. ex rel. Charlotte E. v. Safir, 156 F.3d 340, 344
(2d Cir. 1998)).
A substantial controversy therefore exists between the parties that is “of
sufficient immediacy and reality” to potentially warrant the issuance of a judgment under the
federal Declaratory Judgment Act. See Duane Reade Inc. v. St. Paul Fire and Marine Ins. Co.,
411 F.3d 384, 388 (2d Cir. 2005). 12
Second Amendment Claim
Heller and Heller II
The Second Amendment of the U.S. Constitution provides: “[a] well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed.” U.S. Const. amend. II. In Heller, the Supreme Court found that the
Maloney’s Second Amended Complaint also seeks a declaration against New York Penal
Law § 265.02 (“Section 265.02”), which provides that a person is guilty of criminal possession
of a weapon in the third degree upon committing the crime of criminal possession in the fourth
degree, as defined in New York Penal Law § 265.01(1), and having been previously convicted of
any crime. See New York Penal Law § 265.02. At this Court’s pre-motion conference on
October 24, 2013, Maloney conceded that he lacks standing to seek a declaratory judgment as to
Section 265.02, and withdrew that claim. (See Transcript, 10/24/2013 Hearing at 8). Thus,
Maloney’s claim for declaratory relief as to Section 265.02 is dismissed.
Second Amendment guarantees “the individual right to possess and carry weapons in case of
confrontation.” Heller, 554 U.S. at 592. McDonald extended Heller’s principles to the States,
and therefore we consider Maloney’s Second Amendment claim within the framework
announced by Heller, pursuant to the Supreme Court’s instruction to the Court. See McDonald
v. Chicago, 561 U.S. 742 (2010); Maloney, 561 U.S. 1040.
Though Heller recognized an individual right to “keep and bear arms,” it provided that
the right “was not unlimited.” Heller, 554 U.S. at 595; see also id. (“[W]e do not read the
Second Amendment to protect the right of citizens to carry arms for any sort of confrontation,
just as we do not read the First Amendment to protect the right of citizens to speak for any
purpose.”) (emphasis in original); Kwong v. Bloomberg, 723 F.3d 160, 165 (2d Cir. 2013), cert.
denied sub nom. Kwong v. de Blasio, 134 S. Ct. 2696 (2014) (citing Heller, 554 U.S. at 595).
Weapons that are “not typically possessed by law-abiding citizens for lawful purposes” do not
fall within the Second Amendment’s ambit. Heller, 554 U.S. at 625. The Supreme Court found
this limitation to be “fairly supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’” Id. at 627 (citations omitted).
In Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (“Heller II”), the D.C.
Circuit applied a two-step approach to determine the constitutionality of firearm regulations
passed in the wake of Heller: 13 “We ask first whether a particular provision impinges upon a
right protected by the Second Amendment; and if it does, then we go on to determine whether
As the D.C. Circuit explained in Heller II, “[s]hortly after the Supreme Court issued its
decision in [Heller], the D.C. Council passed emergency legislation in an effort to conform the
District’s laws to the Supreme Court’s holding while it considered permanent legislation.” 670
F.3d at 1248. In December 2008, the D.C. Council passed new firearm regulations that gave rise
to the constitutional challenge in Heller II. Id.
the provision passes muster under the appropriate level of constitutional scrutiny.” Id. at 1252
(citing cases); see also United States v. Pruess, 703 F.3d 242, 245 (4th Cir. 2012)
(applying two-part framework). “Extrapolating” from Heller and subsequent Second Circuit
decisions, the Western District of New York in NYSRPA v. Cuomo applied a “three-part
First, [the court] must determine whether any of the regulated weapons or
magazines are commonly used for lawful purposes. If any are, it must next
determine if any of the challenged provisions of the SAFE Act[ 14] substantially
burden a Second Amendment right. Finally, if any do, it must then decide what
level of scrutiny to apply.
990 F. Supp. 2d at 362–63 (discussing Heller; United States v. Decastro, 682 F.3d 160 (2d Cir.
2012); and Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)).
Thus, to determine whether New York’s criminalization of the in-home possession of
chuka sticks burdens a Second Amendment right, the Court must first determine whether chuka
sticks constitute “arms” protected by the Second Amendment—namely, whether they are
commonly used for lawful purposes. If chuka sticks do not constitute arms protected by the
Second Amendment, then Maloney’s challenge to the ban fails. See, e.g., Pruess, 703 F.3d at
245 (explaining that if the challenged law does not impose a burden on conduct “falling within
the scope of the Second Amendment’s guarantee,” the law is valid). If they do, however, come
within the scope of the Second Amendment’s protection, the Court must then determine how
substantially New York’s ban burdens the exercise of Maloney’s Second Amendment rights, in
On January 15, 2013, Governor Andrew Cuomo signed into law the New York Secure
Ammunition and Firearms Enforcement Act of 2013, or SAFE Act, which effected “broad and
varied changes to firearm regulation in New York State[,]” and “generally enhance[d] regulation
and increase[d] penalties for the illegal possession of firearms.” NYSRPA v. Cuomo, 990 F.
Supp. 2d at 354.
order to determine the applicable level of scrutiny. Kwong, 723 F.3d at 167 (2d Cir. 2013)
(citing Decastro, 682 F.3d at 164); NYSRPA v. Cuomo, 990 F. Supp. 2d at 365.
“Commonly Used For Lawful Purposes”
The “commonly used for lawful purposes” test established in Heller contains an inherent
ambiguity: does the test require both that the weapon at issue be “in common use” and that its
common use be a lawful one, or simply that the weapon’s common use be a lawful one? PostHeller cases addressing handgun regulations have not focused on this question presumably
because there is no doubt that handguns are in common use today in this country and that
restrictions on them should be analyzed pursuant to Second Amendment jurisprudence. See, e.g.,
Kachalsky, 71 F.3d at 93 (presuming that the Second Amendment applies to New York licensing
scheme for carrying concealed handguns in public). However, in cases involving less ordinary
weapons, such as semi-automatic rifles, assault weapons, handguns with obliterated serial
numbers, and large-capacity magazines, the courts have suggested that “in common use” is a
separate and distinct element of the Heller test. See, e.g., Heller II, 670 F.3d 1260–61 (analyzing
whether semi-automatic rifles and large-capacity magazines are in common use); United States
v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010) (in case involving handguns with obliterated
serial numbers, observing that the Supreme Court in Heller “made clear that restrictions on the
possession of dangerous and unusual weapons are not constitutionally suspect because these
weapons are outside the ambit of the amendment.”) (citing Heller 554 U.S. at 624–25); NYSRPA
v. Cuomo, 990 F. Supp. 2d at 360 (in case involving assault weapons and large-capacity
magazines, interpreting Heller to clarify that the Second Amendment only guarantees “the right
to those weapons in ‘common use at the time’—those weapons, that is, that a typical citizen
would own and bring with him when called to service [in the militia].”) (quoting Heller, 554
U.S. at 624 (quoting Miller, 307 U.S. at 179)); see also Heller, 554 U.S. at 624–25 (explaining
the origins of the “commonly used for lawful purposes” test: “We therefore read [United States
v. Miller, 307 U.S. 174 (1939)] to say only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful purposes, such as shortbarreled shotguns,” and noting language from Miller that “ordinarily when called for [militia]
service [abled-bodied] men were expected to appear bearing arms supplied by themselves and of
the kind in common use at the time.”) (quoting Miller, 307 U.S. at 179 (internal quotation marks
omitted)) (emphasis added).
In Heller II, for example, the Court initially made a determination, based on
manufacturing data, that “semi-automatic rifles and magazines holding more than ten rounds are
indeed in ‘common use,’” but ultimately found the evidence presented by the parties insufficient
to determine whether “these weapons are commonly used or are useful specifically for selfdefense or hunting and therefore whether the prohibitions of certain semi-automatic rifles and
magazines holding more than ten rounds meaningfully affect the right to keep and bear arms.”
670 F.3d at 1261. Similarly, in NYSRPA v. Cuomo, based on its holding that “[u]nder Heller, the
Second Amendment does not apply to weapons that are not ‘in common use at the time,’” the
Western District of New York considered the parties’ opposing evidence about the “popularity”
of assault rifles and large-capacity magazines. 990 F. Supp. 2d at 363–64. The court, however,
did not resolve this question, instead ruling that “ownership statistics alone [were] not enough”
because the “firearm must also be possessed for lawful purposes.” Id. at 364.
eventually assumed, for purposes of the decision, that the weapons at issue were
“commonly used for lawful purposes” and thus covered by the Second Amendment. Id. at 365.15
Guided by these decisions and in light of the Supreme Court’s explanation that the test
formulated in Heller is “fairly supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons,’” Heller, 554 U.S. at 627 (emphasis added), the Court believes
that there is a separate and distinct requirement that a weapon be “in common use at the time” in
order to be protected by the Second Amendment. See Heller, 554 U.S. at 627 (explaining that
weapons “in common use at the time” are protected by the Second Amendment). Thus, to
reiterate, the weapon at issue must be “in common use” and its common use must be a lawful
Furthermore, the Court agrees with NYSRPA v. Cuomo and other decisions interpreting
the time relevant to the “in common use at the time” element to mean those weapons in use
today, rather than weapons only in existence at the time of ratification of the Second
Amendment. 990 F. Supp. 2d at 360 (“The salient question for the Heller Court, then, was not
what weapons were in common use during the revolutionary period, but what weapons are in
common use today.”) (emphasis added); see also Heller II, 670 F.3d at 1261 (noting the
nationwide manufacture of the semi-automatic rifles at issue from 1986 to 2007); Marzarella,
614 F.3d at 93 (rejecting criminal defendant’s contention that the relevant time for “in common
use at the time” was ratification). Indeed, the Supreme Court’s statement in Heller that the
Second Amendment “extends, prima facie, to all instruments that constitute bearable arms, even
those that were not in existence at the time of the founding” would appear to make this reading
As in NYSRPA v. Cuomo, the Third Circuit in Marzzarella declined to decide whether the
criminal defendant’s right to bear arms had been infringed and simply assumed it, based on its
findings that the evidence on whether possession of unmarked firearms in the home is covered
by the Second Amendment was inconclusive and that the restriction at issue passed
“constitutional muster even if it burdens protected conduct.” 614 F.3d at 95.
incontrovertible. Heller, 554 U.S. at 582. Thus, the Court interprets the time relevant to “in
common use at the time” to mean weapons in common use today. 16
Level Of Scrutiny For Second Amendment Challenges
As the Southern District of New York recently found, a majority of courts have applied
“intermediate scrutiny to general challenges under the Second Amendment, even when
reviewing statutes or laws that may restrict the possession of [weapons] in the home.” See New
York State Rifle & Pistol Ass’n v. City of New York, No. 13 CV 2115, 2015 WL 500172, at *7
(S.D.N.Y. Feb. 5, 2015), appeal filed, No. 15-638 (applying intermediate scrutiny to New York
City law restricting the transportation of handguns covered by residence licenses beyond the
premises of the licensed residence); see also Kachalsky, 701 F.3d at 93 (applying intermediate
scrutiny to New York licensing scheme for carrying concealed handguns in public); United
States v. Reese, 27 F.3d 792, 800 (10th Cir. 2010), cert. denied, 131 S.Ct. 2476 (2011) (applying
intermediate scrutiny to federal statute prohibiting an individual’s possession of gun—even in
the home—when subject to a protective order as opposed to a criminal conviction); United States
v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2010) (en banc) (applying intermediate scrutiny to
federal statute prohibiting the possession of firearms by any person convicted of a misdemeanor
domestic violence crime); United States v. Chester, 628 F.3d 673, 677 (4th Cir. 2010) (same as
Skoien); Marzzarella, 614 F.3d at 97 (applying intermediate scrutiny to law limiting possession
The Court acknowledges, but disagrees with, those courts that have read “in common use
at the time” to apply only to those weapons that were used by the militia at the time of the
country’s founding. See, e.g., Pruess, 703 F.3d at 246 n.2 (interpreting “in common use at the
time” to be at the time of ratification); Mack v. United States, 6 A.3D 1224, 1235 (D.C. 2010)
(finding that it was not “‘clear’ or ‘obvious’ that the Second Amendment secures the right of the
people ‘to keep and bear’ ice picks” where plaintiff failed to provide any “convincing historical
analysis demonstrating [ice picks’] suitability for use in the militia”).
of firearms with obliterated serial numbers because the law did not “severely limit the possession
of firearms”); United States. v. Oppedisano, 09–CR–0305, 2010 WL 4961663, at *2 (E.D.N.Y.
Nov. 30, 2010) (applying intermediate scrutiny to challenge to federal statute prohibiting persons
convicted of certain crimes from possessing firearms); NYSRPA v. Cuomo, 990 F. Supp. 2d at
366-67 (applying intermediate scrutiny to SAFE Act and concluding that a “mild form of
intermediate scrutiny” applies to restrictions posing “only modest burdens” on the right to
possess firearms) (quoting Heller II, 670 F.3d at 1262)). 17
There Is Insufficient Evidence On Whether Chuka Sticks Are
Protected Under The Second Amendment
The parties do not dispute the fact that chuka sticks are weapons. Indeed, New York law
defines them as such. See N.Y. Penal Law § 265.00(14) (“‘Chuka stick’ means any device
designed primarily as a weapon . . .”). However, the parties vigorously dispute whether chuka
sticks are “in common use” for “lawful purposes” and thus eligible for protection under the
Second Amendment. Heller, 554 U.S. at 624. These are fundamentally empirical questions.
Maloney argues that chuka sticks are “typically possessed by law-abiding citizens for
lawful purposes.” Maloney attests that chuka sticks are “an integral part of [his] martial arts
The cited cases concerned firearms, not chuka sticks, and restrictions, but not bans, on the
possession and use of certain firearms. These distinctions could be relevant in determining how
substantially Section 265.01 burdens Maloney’s exercise of his Second Amendment rights and
thus the appropriate level of scrutiny to apply. Section 265.01 bans the possession of nunchaku
anywhere and for any purpose, bringing it closer to the handgun ban struck down in Heller. See
Decastro, 682 F.3d at 165–66 (distinguishing between the restrictions at issue in that case, which
did not preclude ownership or possession of firearms, and the handgun ban struck down in
Heller) (quoting Heller, 554 U.S. at 629 (“Few laws in the history of our Nation have come close
to the restriction of the District’s handgun ban.”)). At the same time, however, unlike handguns,
nunchaku are not considered “the quintessential self-defense weapon,” by “the American
people,” Heller, 554 U.S. at 629, and thus a ban on their possession arguably does not impose
nearly the same burden as a handgun ban on the Second Amendment right to bear arms for the
purpose of self-defense. The Court defers the resolution of this issue until after the parties have
submitted additional evidence on the use of nunchaku in this country, as discussed infra.
training and indeed of [his] home defense philosophy.” (Maloney Decl., ¶ 6). Self-defense of
the home clearly constitutes a “lawful purpose” under Heller. See McDonald, 561 U.S. at 767
(“Self-defense is a basic right, recognized by many legal systems from ancient times to the
present, and in Heller, we held that individual self-defense is ‘the central component’ of the
Second Amendment right.”) (emphasis in original); Kachalsky, 701 F.3d at 89 (stating “Second
Amendment guarantees are at their zenith within the home”). However, Maloney’s personal
experience is just one data point and does not, on its own, establish that chuka sticks are “in
common use today” or that their common use is for the “lawful purpose” of self-defense.
In an attempt to establish that chuka sticks are “typically possessed by law-abiding
citizens for lawful purposes,” Maloney points to the legislative history of New York’s ban as
well as judicial decisions opining on the use of chuka sticks. Maloney cites an April 4, 1974
memorandum from New York’s Division of Criminal Justice Services opposing the
criminalization of chuka sticks, acknowledging that chuka sticks are used in martial arts training,
and stating that “many members of the public” participate in such activities. (Pl. Memo at ECF
6–7; see also Dkt. 116-2). Maloney also cites to a 1982 decision by the Supreme Court of
Hawaii stating that “nunchaku sticks are widely used in the martial arts,” 18 a 1983 decision by
the District of Columbia Court of Appeals recognizing that “the nunchaku has socially
acceptable uses within the context of martial arts,” 19 and a 1984 decision by the Ohio Court of
Appeals finding that the record established that the chuka sticks at issue were “used only for
State v. Muliufi, 64 Haw. 485, 489 (Haw. 1982) (determining that nunchaku are not
deadly or dangerous weapons).
In re S.P., 465 A.2d 823, 827 (D.C. 1983) (upholding defendant’s conviction under the
dangerous weapons statute based on his carrying and twirling nunchaku in a crowd).
lawful purposes.” 20
Finally, Maloney points out that Judge Spatt, in his 2007 opinion,
recognized that “the martial arts generally, and perhaps use of the nunchaku in particular, have a
rich history and are culturally significant to many people in many parts of the world.” Maloney,
470 F. Supp. 2d at 213.
In contrast, the District Attorney argues that chuka sticks are not “‘in common use,’
inasmuch as it is clear that only a small subset of the population even attempts to use nunchaku
for martial arts related purposes.” (Def. Opp. at ECF 6). However, the District Attorney fails to
back this claim with any evidentiary support. Instead, the District Attorney argues that nunchaku
are “dangerous and unusual weapon[s] which [are] not typically possessed by law-abiding
citizens for lawful purposes.” (Def. Opp. at ECF 6). In an attempt to establish that nunchaku are
“dangerous and unusual,” and therefore not protected by the Second Amendment, the District
Attorney points to a handful of cases from across the country, spanning 24 years, where
nunchaku were used to commit violent crimes. (Id. (citing four news articles describing the use
of nunchaku in violent crimes)). The District Attorney also points out that the District of
Columbia case cited by Maloney, In re S.P., Jr., actually upheld the defendant’s conviction for
possession of nunchaku as a dangerous weapon, despite its recognition that nunchaku are used in
the martial arts. See 465 A.2d at 827. She also cites to a 1986 decision by the District Court of
Appeal in Florida and a 1985 decision from the Court of Appeals in Iowa finding that nunchaku
constituted dangerous and deadly weapons. See R.V. v. State, 497 So.2d 912 (Fla. Dist. Ct. App.
1986); State v. Mitchell, 371 N.W.2d 432 (Iowa Ct. App. 1985). And in opposition to the
State v. Maloney, 470 N.E.2d 210, 211 (1984) (overturning conviction because defendant
had merely possessed nunchaku, “an otherwise lawful article” under the circumstances
Division of Criminal Justice Services memorandum offered by Maloney, the District Attorney
points to sources of legislative history suggesting that New York legislators viewed nunchaku as
dangerous weapons. (Def. Opp. at ECF 9). 21
The Court does not find the evidence offered by the parties to be so persuasive as to
warrant a grant of summary judgment to either side. Both sides have offered little more than
anecdotal evidence, which leaves the Court ill-equipped to determine whether the examples
offered are representative or atypical. Indeed, neither party has advanced any empirical support
that would allow the Court to conclude that chuka sticks are or are not “in common use today”
and that they are used for “lawful purposes.” While courts in firearms cases have recognized
that “reliable empirical evidence” establishing the purposes for which the weapons at issue were
used may prove to be “elusive,” the parties in those cases at least made attempts to marshal
statistics to demonstrate that the weapons at issue were “in common use.” In Heller II, the
District of Columbia Circuit found that the record clearly established that the weapons at issue
were “in common use,” based, in part, on manufacturing statistics dating from 1986. 670 F.3d at
1261. In NYSRPA v. Cuomo, the parties both provided statistics on the ownership of assault
weapons, providing a basis for the district court to assume that the weapons at issue were
“commonly used for lawful purposes.” 990 F. Supp. 2d at 365. Here, however, neither Maloney
nor the District Attorney have made any attempt to offer ownership statistics or expert testimony
The sources of legislative history cited by the District Attorney are (1) an April 8, 1974
memorandum from the then-Attorney General noting that nunchaku have “apparently been
widely used by muggers and street gangs”; (2) an April 1, 1974 letter from the Legislative
Secretary of the District Attorneys Association of the State of New York to the Counsel to
Governor Wilson noting that “[a]s a result of the recent popularity of ‘Kung Fu movies and
shows, various circles of the state’s young are using” nunchaku, which “can kill”; (3) an April 2,
1974 letter from Assemblyman Richard C. Ross stating that nunchaku may be used “as a garrote,
bludgeon, thrusting or striking device”; and (4) an April 1, 1974 letter from the District Attorney
of Dutchess County noting that nunchaku are used “in the same manner and with a frequency
that now approximates other per se contraband weapons[.]” (See Def. Opp. at ECF 9–10).
as to whether chuka sticks are “in common use” for lawful purposes or are otherwise “dangerous
On the thin evidentiary record currently before the Court, the Court is unable to find that
the evidence is “so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S.
at 251–52. Neither Maloney nor the District Attorney has shown an absence of disputed issues
of material fact with respect to the critical threshold question of whether chuka sticks are or are
not protected by the Second Amendment. The Court thus denies summary judgment to both
Maloney and the District Attorney with respect to Maloney’s Second Amendment claim. 22 At
trial, the parties should be prepared to offer a more robust factual record through the use of
statistics and/or expert testimony. 23
Section 1983 Claim
Count Three of Maloney’s Second Amended Complaint asserts a due process violation
based on the District Attorney’s “disclosure,” in a brief to the Second Circuit, that he was listed
Maloney also offers evidence that nunchaku have “historically had a reasonable
relationship to a citizens’ militia” based on their use by Okinawans in the early 17th century to
resist occupation by the Japanese. (Pl. 56.1, ¶ 3). The District Attorney agrees that nunchaku
were used as a weapon by Okinawans in the 17th century (Def. 56.1, ¶ 3), but disputes the legal
relevance of this fact. Though Heller opined that the purpose of the Second Amendment was to
prevent elimination of the militia, 554 U.S. at 599, it does not limit the Second Amendment’s
scope to only those weapons with a connection to the militia. Thus, the Court finds the fact of
nunchaku’s historical connection with the Okinawan militia to have little relevance to its task of
determining whether nunchaku are “in common use” today for lawful purposes.
Given the equitable nature of the relief sought by Maloney, the Court anticipates that the
parties will proceed with a bench trial. See Pereira v. Farace, 413 F.3d 330, 337 (2d Cir. 2005)
(applying two-step test from Granfinanciera, S.A. v. Nordberg, 592 U.S. 33, 42 (1989) to
determine whether a particular action triggers the right to trial by jury, asking first whether the
action “would have been deemed legal or equitable in 18th century England,” then examining the
remedy sought and “whether it is legal or equitable in nature,” and finally “balanc[ing] the two,
giving greater weight to the latter.”).
on the New York State Child Abuse and Maltreatment Register. Maloney’s due process claim is
premised on the harm to his reputation from the District Attorney’s dissemination of the fact that
he was the subject of an investigation for possible child abuse. Because the liberty interest he
asserts is tied to his reputation, he concedes that “stigma plus” is the applicable standard for
analyzing his claim. (Pl. Memo at ECF 19); Patterson v. City of Utica, 370 F.3d 322, 330 (2d
“It is axiomatic that a ‘person’s interest in his or her good reputation alone, apart from a
more tangible interest, is not a liberty or property interest sufficient to invoke the procedural
protections of the Due Process Clause or create a cause of action under § 1983.’” Prince v.
County of Nassau, 837 F. Supp. 2d 71, 97 (E.D.N.Y. 2011) aff'd, 563 F. App’x 13 (2d Cir. 2014)
(citing Patterson, 370 F.3d at 329–30 (further citation omitted)). Ordinarily, a claim based
solely on a plaintiff’s loss of reputation must be brought as a state defamation claim, and cannot
form the basis of a Section 1983 claim. Prince, 837 F. Supp. 2d at 97 (citing Sadallah v. City of
Utica, 383 F.3d 34, 38 (2d Cir. 2004)). However, a plaintiff may assert a Section 1983 due
process claim based on reputational harm if his injury is coupled with the deprivation of a more
tangible interest; such claims are known as “stigma plus” claims. See Patterson, 370 F.3d at
330; Sadallah, 383 F.3d at 38.
“To succeed on a stigma plus claim, ‘a plaintiff must show (1) the utterance of a
statement sufficiently derogatory to injure his or her reputation, that is capable of being proved
false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed
alteration of the plaintiff’s status or rights.’” Prince, 837 F. Supp. 2d at 97 (citing Sadallah, 383
F.3d at 38). Failure to establish that the statement at issue is “capable of being proved false”
requires dismissal of the plaintiff’s claim. See Prince, 837 F. Supp. 2d at 97–98 (dismissing
plaintiff’s “stigma plus” claim where the statements at issue could not be characterized as “false,
reputation-tarnishing statement[s] sufficient to support” his claim).
Maloney’s “Stigma Plus” Claim Fails
The Court grants summary judgment to the District Attorney on Count Three because
Maloney cannot establish the first element of his “stigma plus” claim as a matter of law.
undisputed that the District Attorney’s statement in her Second Circuit brief regarding Maloney’s
listing on the Register was a true statement at the time the brief was filed. 24 The factual accuracy
of the “disclosure” made by the District Attorney is thus fatal to his claim. See Prince, 837 F.
Supp. 2d at 98; see also Vega v. Lantz, 596 F.3d 77, 82 (2d Cir. 2010) (finding plaintiff, who
contested his classification as a sex offender, was not entitled to relief on his “stigma plus” claim
because plaintiff failed to establish “a threshold requirement—the existence of a reputationtarnishing statement that is false.” (emphasis in original)).
Maloney’s inability to establish the threshold requirement of a “stigma plus” claim is
further bolstered by the fact that the District Attorney’s “disclosure” resulted from the citation to
a publicly issued district court opinion in a case that Maloney himself filed, where he alleged a
due process violation based on his listing on the Register. (See Dkt. 102-1 at ECF 11 (“In
addition, since Plaintiff’s infant sons had been in the home at the time of the incident, Office of
Child and Family Services investigated, concluded that the incident ‘indicated’ maltreatment of
his sons, [sic] and Plaintiff was listed on the New York State Child Abuse and Maltreatment
Register.” (citing Maloney, No. 03 CV 4178))). As the District Attorney points out, Maloney’s
own complaint in Maloney v. County of Nassau stated that he had been investigated and that
“said investigation was deemed ‘Indicated,’ which creates a permanent record . . . indicating that
As noted in Section I.B, supra, District Attorney Rice filed the brief on October 25, 2007,
and the report against Maloney was not amended until September 22, 2008.
Plaintiff has been investigated for possible child abuse.” (Def. 56.1 at ECF 3 ¶ 1 (citing Verified
Complaint at ¶¶ 32–33, Maloney, No. 03 CV 4178)). In ruling on the defendants’ motion to
dismiss, Judge Townes’ opinion in Maloney v. County of Nassau recounted Maloney’s own
allegation regarding his listing on the Register. See 623 F. Supp. 2d at 283
Unable to overcome the factual nature of the “disclosure” at issue, Maloney attempts to
distinguish his own disclosure of the listing in his complaint from the District Attorney’s citation
of this fact “to advance one’s own position in a civil matter” at the expense of “ruining [his]
good name.” (Pl. Reply at ECF 13). Maloney fails to demonstrate how any such distinction is
legally cognizable within the “stigma plus” framework.
While the Court recognizes that the seven-year delay between Maloney’s initial listing on
the Register and the eventual amendment was egregiously long, 25 it still finds that Maloney
cannot find vindication through the due process claim pled here. As Judge Townes noted in her
opinion, Maloney had a meaningful post-deprivation remedy through an Article 78 proceeding in
State court. Maloney, 623 F. Supp. 2d at 300. Maloney’s decision to forego an Article 78 action
and instead pursue a “stigma plus” claim in this Court leaves him without a remedy. 26
Having found that Maloney’s due process claim fails because of the factual nature and
accuracy of the “disclosure” by the District Attorney, the Court declines to address the District
Attorney’s remaining arguments as to qualified immunity and collateral estoppel.
See supra note 8 regarding Maloney’s listing on the register.
As Maloney acknowledges, Judge Spatt rejected Maloney’s attempt to assert a direct
challenge to his listing on the Register through a private cause of action based on New York
Social Services Law § 422(12), because Maloney had never filed a Notice of Claim. (Pl. Reply
at ECF 10–11). Thus, the Court notes that Maloney’s addition of this due process claim
following remand of this case was an inappropriate attempt to revisit and end-run the decisions
already reached on this issue by Judge Townes in Maloney v. County of Nassau and Judge Spatt
in this action.
The Court thus grants summary judgment to the District Attorney on Count Three of
Maloney’s Second Amended Complaint.
The Court denies summary judgment to both parties on Count One of the Second
Amended Complaint challenging New York Penal Law § 265.01 as a violation of the Second
Amendment. This claim shall proceed to trial. The parties shall file a proposed joint pre-trial
order within forty-five (45) days of the date of this Order.
The Court grants summary judgment to the District Attorney on Count Three of the
Second Amended Complaint (§ 1983 Claim). Maloney’s request for declaratory relief as to New
York Penal Law § 265.02 is dismissed from this action for lack of standing. The Court also
dismisses Count Two of the Second Amended Complaint (Ninth and Fourteenth Amendment
challenge to the chuka stick ban) for the reasons stated on the record during the October 24, 2013
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 22, 2015
Brooklyn, New York
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