Nunchaku: Illegal in New York & California
Has The Law Gone Too Far?
by Jim Maloney
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In New York and California
it is legal to have a shotgun, rifle or sword in your home, but
if you have two pieces of wood connected
with a rope or chain, possession is a crime.
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Although most of the U.S. states that regulate possession of nunchaku
make no attempt to ban the simple possession of the instrument in the
privacy of one’s home for peaceful martial-arts practice, the laws
of New York and California both make such possession a crime carrying
up to one year’s imprisonment for anyone convicted. And while martial
artists until recently may have taken comfort in the likelihood that
such prosecutions for in-home possession were virtually unheard of, recent
trends in both states indicate that complacency about keeping connected
sticks in one’s house would be quite unwise.
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In California earlier this year, police legally entered the San Jose
residence of Harold Vaughn, a long-time martial artist and past Virginia
director of the U.S. National Karate Association. Upon noticing a pair
of nunchaku hanging on display on the wall along with Vaughn’s
martial arts certificates, the police asked if he had any others. He
did, and they subsequently seized a total of six pairs, following which
Vaughn was charged with six counts of violation of California Penal Code § 12020,
a misdemeanor, for his possession of the nunchaku in his home. There
was no allegation that he had used them, or threatened to use them, to
harm anyone, but, unfortunately, under the statute, no such allegation
would be needed for a conviction. On July 19, 2004, Vaughn, threatened
with prosecution for six misdemeanor counts with consecutive sentencing
that would lead to six years of incarceration if he were convicted, pled "no
contest" to a single misdemeanor count. A few years earlier he had
moved from Virginia to California to study law, and had just completed
his law degree. He is now spending weekends doing jail time by means
of a part-time incarceration program. Ironically, he was ineligible for
a community-service option because a "weapon" was involved.
In New York, another phenomenon is unfolding. Attorney General Eliot
Spitzer, famous for taking on corporate corruption (most recently the
insurance industry), has, over the last few years, brought civil lawsuits
against out-of-state martial arts equipment suppliers (Family Defense
Products of Ocala, Florida, and Bud-K Worldwide, Inc., of Moultrie, Georgia),
which had supplied nunchaku to New York residents by mail order and Internet
sales. Under the threat of huge liability, the companies agreed (in 2000
and 2002, respectively) to provide Spitzer with a list of New York customers
who had purchased "illegal" weapons from the companies and
to deliver written notice to their New York customers advising them to
surrender their "illegal" weapons to law enforcement agencies.
A copy of the form that Bud-K Worldwide, Inc. was required to send its
customers may be seen at [link 1].
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Bruce Lee’s 1973 movie “Enter The Dragon” first
captured the public’s attention and kicked off the martial
arts craze which continues today. In the movie there was only a
short scene of Lee using a pair of nunchaku, but within a year
(1974) the
New York State legislature had enacted a ban on possession of this
implement, even in the home. The nunchaku originated in Okinawa,
but by the time of its ban in New York and California the nunchaku
was practiced widely within many karate and Kobudo martial arts
groups around the world. |
New York has also recently prosecuted at least one person for simple
in-home possession of nunchaku, a matter about which I can speak firsthand
(since I was actually prosecuted). Although there was no allegation that
I had used, or intended to use, the pair of nunchaku that police found
under my couch to harm anyone, a misdemeanor charge was lodged against
me in August 2000, and remained pending until 2003, when the prosecutors
agreed to dismiss it upon my pleading guilty to a violation (not a crime).
Being a lawyer myself, my next step was to challenge the statute banning
possession of nunchaku in one’s own home as unconstitutional, in
a case (Maloney v. Spitzer) that is currently pending in federal court
here on Long Island. Interestingly, one of the arguments that Mr. Spitzer’s
team is making in their defense (basically to avoid having the court
decide the case) is that since Mr. Spitzer does not "enforce" the
law, he is not the proper party to be sued. Arguably his civil lawsuits
and the letters that he required to be sent to purchasers are a form
of enforcement, and that question is now before the court. Although I
had originally also named the District Attorney who prosecuted me as
a defendant, the County attorneys early on pleaded with me to let him
out to save the taxpayers some money, and I did. (If the Attorney General
now manages to circumvent the court’s deciding the case on the
basis of his "I’m-the-wrong-guy" argument, it will be
classic manifestation of the adage: "No good deed goes unpunished.")
One noteworthy bit of history about the New York laws banning nunchaku
(or "chuka sticks" as the statutes call them), which have been
on the books since 1974, is that the State’s own Division of Criminal
Justice Services sent a memo to the Governor just 12 days before the
bill was signed into law, pointing out that nunchaku have legitimate
uses in karate and other martial-arts training, and opining that "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." I found a copy of that memo
in the course of my research and have made it part of the court file.
A copy may be found at [link 2].
The essence of my argument is that while the State may ban nunchaku
possession in public places, it reaches too far when it attempts to make
simple possession in one’s own home a crime. My constitutional
bases for attacking the statute are, of course, the Second Amendment,
as well as a well-developed line of unenumerated-rights cases holding
that persons have a right to privacy in their own homes. More details
about the case, along with updates and many more documents (including
all papers filed by both sides), may be found on the website that I have
created for it at [link
3].
In closing, I’d like to make a call for help (not money): if anyone
reading this is among those who received a letter from one of those martial-arts
suppliers informing them that the New York law enforcement authorities
had been given their name and advising them to surrender their nunchaku,
please get in touch with me immediately. If you would be willing to join
the case as a plaintiff, that may help to prevent an unjust dismissal
should the court decide either that I lack standing to sue or that Mr.
Spitzer is the wrong defendant in the case as presented. Please call
me at (516) 767-1395.
About The Author:
Jim Maloney is a graduate of State University of New York Maritime College
(B.S.), Fordham University School of Law (J.D.), and New York University
School of Law (LL.M.), where he studied federalism and federal systems,
including those of the United States and the European Union. Maloney
has been employed as a merchant marine officer (1980-1987), as a paramedic
at Saint Vincent's Hospital in Manhattan (1987-1995), and as a maritime
attorney at Burlingham Underwood LLP (1995-1996) and Kirlin, Campbell & Keating
(1996-1999), two historic New York City admiralty firms. He is now engaged
in private solo practice. Maloney began his martial arts training during
the mid-1970s at age 16, studying Uechi-Ryu karate, and over the years
has also dabbled in Ving Tsun, boxing and aikido. He can neither confirm
nor deny whether he currently trains with nunchaku at his home in Port
Washington, New York.
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