PAMELA K. CHEN, 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).
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).
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.
Maloney is a long-time practitioner of the martial arts.
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.
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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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, 130 S.Ct. 3541. 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 Fed.Appx. 29 (2d Cir.2010).
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).
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, 2007 WL 6424864 (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).
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 ECF 4 ¶ 5). The Second Circuit denied Maloney's motion on November 19, 2008. (Def. 56.1 at ECF 4 ¶ 5).
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
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.
"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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 90 S.Ct. 1598, 26 L.Ed.2d 142 (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
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 nunchaku 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, 94 S.Ct. 1209, 39 L.Ed.2d 505 (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).
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 Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." Heller, 554 U.S. at 592, 128 S.Ct. 2783. 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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010); Maloney, 561 U.S. 1040, 130 S.Ct. 3541.
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, 128 S.Ct. 2783; 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, ___ U.S. ___, 134 S.Ct. 2696, 189 L.Ed.2d 739 (2014) (citing Heller, 554 U.S. at 595, 128 S.Ct. 2783). 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, 128 S.Ct. 2783. 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, 128 S.Ct. 2783 (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:
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 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.
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? Post-Heller 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, 701 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 at 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, 128 S.Ct. 2783); 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, 128 S.Ct. 2783 (quoting Miller, 307 U.S. at 179, 59 S.Ct. 816)); see also Heller, 554 U.S. at 624-25, 128 S.Ct. 2783 (explaining the origins of the "commonly used for lawful purposes" test: "We therefore read [United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (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 short-barreled shotguns[]," and noting language from
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 self-defense 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. The Court 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.
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, 128 S.Ct. 2783 (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, 128 S.Ct. 2783 (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 one.
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); Marzzarella, 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 incontrovertible. Heller, 554 U.S. at 582, 128 S.Ct. 2783.
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, 86 F.Supp.3d 249, 259, 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, 627 F.3d 792, 800 (10th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2476, 179 L.Ed.2d 1214 (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 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).
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, 128 S.Ct. 2783. 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 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, 130 S.Ct. 3020 ("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,"
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
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 as to whether chuka sticks are "in common
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, 106 S.Ct. 2505. 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.
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 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 Cir.2004).
"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 Fed.Appx. 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
"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).
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. It is 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.
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 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.
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.
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 pre-motion conference.
SO ORDERED.
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 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).
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).
