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Nunchaku: Illegal in New York & California

Has The Law Gone Too Far?

by Jim Maloney

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.

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.

Jim Maloney

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].

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.

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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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