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.
No. 03 CV 0786(ADS)(MLO).
Jan. 17, 2007.
Attorneys and Law Firms
*206 James M. Maloney, Port Washington, NY, Plaintiff Pro Se.
Andrew Cuomo, State of New York, Office of the Attorney General, by *207Dorothy 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 “State Defendants”), 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).
I. BACKGROUND
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 plaintiff's “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 *208 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.”
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 plaintiff's 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:
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.”
*209 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.
II. DISCUSSION
A. As to The Caption
Rule 25(d) provides that “[w]hen a public officer is a party to an action in his official capacity and during its pendency ... ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party.” 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.
B. The Plaintiff's Pro Se Status
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 plaintiff's 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.
In this case, the Declaratory Judgment Act is satisfied because the plaintiff has already been arrested once under the allegedly unconstitutional statute, and intends to continue using nunchaku in his martial arts training, which he considers to be constitutionally protected activity. See Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974) (Brennan, J.) (discussing the desire to avoid putting a plaintiff to the choice of “intentionally flouting state law” or “forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.”).
E. The Attorney General and the Governor are not Proper Defendants
The Court previously held in this case that the plaintiff lacks standing to sue the Attorney General because the plaintiff has no reasonable fear of prosecution by this official. See Maloney v. Spitzer, 03cv0786, Memorandum of Decision and Order (Aug. 31, 2005); accord Curtis v. Pataki, No. 96 Civ. 425, , at *5 (N.D.N.Y. Oct. 1, 1997) (dismissing claims against Governor for failure to state a claim because Governor had no responsibility for administering or enforcing the challenged statute) (citation omitted); cf. Baez v. Hennessy, 853 F.2d 73, 76 (2d Cir.1988) (“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.”).
Notwithstanding the Court's August 31, 2005 Order, the plaintiff argues that the Attorney General is a proper defendant because the amended complaint “seeks contingent equitable relief, ... in a form such as an affirmative injunction requiring the Attorney General to notify any persons who received notice that their home possession of nunchaku is illegal ... that they may not be criminally prosecuted for the simple possession of nunchaku in their own homes.” Pls. Br. at 20. The Court does not agree that this request for “contingent” relief creates standing on the part of the plaintiff against the Attorney General. Accordingly, the plaintiff's claims against the Attorney General are dismissed.
Similarly, the Court sees no basis for the plaintiff to assert his claims against the Governor. As with the Attorney General, the Governor is not involved in the enforcement of the statutes that the plaintiff is challenging. Thus, the claims against the Governor should be dismissed. See Wang v. Pataki, 164 F.Supp.2d 406, 410 (S.D.N.Y.2001) (dismissing Governor as a defendant in a suit raising a challenge to the constitutionality of a state statute where there were no allegations that the Governor had any connection with the enforcement of the statute “other than the general duty to take care that the laws be faithfully executed”); see also Romeu v. Cohen, 121 F.Supp.2d 264, 272 (S.D.N.Y.2000); Warden v. Pataki, 35 F.Supp.2d 354, 359 (S.D.N.Y.) (citations omitted), aff'd, 201 F.3d 430, (2d Cir.1999); cf. Shell Oil Co. v. Noel, 608 F.2d 208, 211–12 (1st Cir.1979) (“The mere fact that a governor is under a general duty to enforce state laws does not make him a proper party defendant in every action attacking the constitutionality of a state statute. Nor is the mere fact that an attorney general has a duty to prosecute all actions in which the state is interested enough to make him a proper defendant in every such action.”) (citations omitted). Accordingly, the State Defendants' motion to dismiss the complaint is granted.
F. As to the District Attorney's Motion for Judgment on the Pleadings
Having dismissed the plaintiff's complaint against the State Defendants, the only defendant that remains is the District Attorney. The plaintiff's amended complaint challenges the constitutionality of New York's weapons-possession law, as applied to the in-home possession of nunchaku by the plaintiff, on three independent grounds: (1) the free speech clause of the First Amendment; (2) the Second Amendment's right to bear arms; and (3) “unenumerated” rights found in the Ninth Amendment. The District Attorney argues *212 that she is entitled to judgment on the pleadings on all three causes of action.
In this case, the plaintiff alleges that the “peaceful training with and twirling of the nunchaku [in the privacy of one's own home] is expressive conduct, which is protected by the First Amendment to the Constitution of the United States.” (Am.Compl.¶¶ 40, 46.) In her motion for judgment on the pleadings, the District Attorney does not make a genuine effort do dispute the plaintiff's contention that his use of the nunchaku constitutes protected speech. Instead, citing religious-exercise cases, the District Attorney argues that New York State's blanket ban on the possession of nunchaku is a reasonable restriction on the plaintiff's expression, and necessary to satisfy a legitimate government objective. See People v. Singh, 135 Misc.2d 701, 516 N.Y.S.2d 412 (1987) (holding that a New York law prohibiting, with some exceptions, the wearing or carrying of knives did not violate a Sikh's freedom to practice his religion, which required him to carry a sword called a “Kirpan”); see also United States v. Lee, 455 U.S. 252, 261, 102 S.Ct. 1051, 1057, 71 L.Ed.2d 127 (1982) (holding that the collection of social security taxes did not violate the First Amendment free exercise rights of an employer who was a member of the Old Order Amish). Notwithstanding the District Attorney's failure to challenge the plaintiff regarding the nature of his alleged “speech,” it is the opinion of the Court that the plaintiff's conduct in this case is not speech, and therefore the plaintiff fails to state a claim under the First Amendment.
To be clear, the plaintiff does not allege that he has or will try to convey any “particularized” message through his use of the nunchaku. See Spence, 418 U.S. at 410–11, 94 S.Ct. at 2730. The plaintiff uses the nunchaku “to develop dexterity and coordination.” (Compl.¶ 16.) The plaintiff began training with the weapon, based in part, on its effectiveness in disarming an assailant armed with a knife or other sharp instrument. (Compl.¶ 17). There are no allegations that the use of the nunchaku are integral to anything resembling either actual or symbolic speech.
As the Court stated in Justice: “In its most basic form, athletic competition does not constitute pure speech; rather, participation in athletic competition constitutes physical activity or conduct.” Justice, 577 F.Supp. at 374. Although the activity in this case is not competition, the Court sees no reason to distinguish between public competition and at-home training or practice for purposes of the First Amendment.
The Court recognizes and accepts that the martial arts generally, and perhaps use of nunchaku in particular, have a rich history and are culturally significant to many people in many parts of the world. Under some circumstances an individual's participation in martial arts, and the attendant use of related equipment such as nunchaku, might warrant some degree of First Amendment protection. But there is nothing in the amended complaint or the plaintiff's papers to suggest that should be the case here. The plaintiff alleges that he uses the nunchaku for physical training and for self-defense. Under these circumstances, it is the opinion of the Court that the plaintiff is similar to the boxer and wrestler engaged in a strictly physical and unprotected activity. As such, the amended complaint on its face fails to satisfy the first requirement of the Spence test. Accordingly, the District Attorney's Rule 12(c) motion to dismiss the plaintiff's first cause of action is granted.
2. As to the Second and Ninth Amendments
The plaintiff's remaining causes of action alleging violations of the Second and Ninth Amendments are easily disposed of. *214 The Second Amendment provides that “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. With regard to the plaintiff's claim that New York's ban on possessing nunchaku violates the Second Amendment, the Court looks to the Second Circuit's decision in Bach v. Pataki, 408 F.3d 75 (2d Cir.2005). The plaintiff in Bach, a non-resident of the State of New York, challenged a New York statute that restricts the issuance of handgun licenses to only New York residents. In rejecting the plaintiff's Second Amendment challenge, the Court held “that the Second Amendment's ‘right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts.” Id. at 84.Bach is controlling here. The Second Amendment imposes no limitation on New York State's ability to ban the possession of certain weapons, including the nunchaku. Accordingly, the District Attorney's motion to dismiss the plaintiff's second cause of action is granted.
The Ninth Amendment provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. II. Similar to the Second Amendment, the Ninth Amendment is only applicable against federal, and not state, actors. See Rini v. Zwirn, 886 F.Supp. 270, 289–90 (E.D.N.Y.1995) (citing Laurence H. Tribe, American Constitutional Law § 11–2, at 772–73 (2d ed.1988)). In addition, the Ninth Amendment is considered “a rule of construction” that does not give rise to individual rights. See United States v. Bifield, 702 F.2d 342, 349 (2d Cir.1983); see also Clynch v. Chapman, 285 F.Supp.2d 213, 219 (D.Conn.2003) (dismissing Ninth Amendment cause of action for failure to state a claim); Rini, 886 F.Supp. at 289–90 (dismissing Section 1983 cause of action based on a violation of the Ninth Amendment). So while the Ninth Amendment may provide the basis for recognition of un-enumerated rights, which themselves may be enforceable against a State under the Due Process Clause of the Fourteenth Amendment, the Ninth Amendment itself provides no substantive right. See Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir.1991) (dismissing the plaintiff's Ninth Amendment claim on the ground that “the ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law”); DeLeon v. Little, 981 F.Supp. 728, 734 (D.Conn.1997) (holding that “ ‘the [Ninth Amendment] does not guarantee any constitutional right.’ ” (quotation omitted)); Mann v. Meachem, 929 F.Supp. 622, 634 (N.D.N.Y.1996) (dismissing the plaintiff's section 1983 claim to the extent that it was based upon a violation of the Ninth Amendment because “[t]he Ninth Amendment is recognized as a rule of construction and does not protect any specific right.”) (citation omitted). Accordingly, the District Attorney's motion to dismiss the plaintiff's third cause of action is granted.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the State Defendants' motion to dismiss the amended complaint is granted; and it is further
ORDERED, that the District Attorney's motion for judgment on the pleadings is granted; and it is further
ORDERED, that the amended complaint is dismissed; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.