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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

TSA: Forced Strip-Search No More Offensive Than Voluntarily Using a Locker Room

TSA's Motion to Dismiss Mengert Lawsuit
The TSA fails to appreciate the value of consent.

In June, my client Rhonda Mengert filed suit against the TSA for forcing her to expose herself and show them a feminine hygiene product she was wearing.  The strip-search of this 51-year-old grandmother was flatly against TSA’s own rules, yet strip-searches happen over and over at airports across the country, perhaps as a result of poor training, high turnover, failed background checks, or… well, who really knows why they can’t get it together?

What we do know from the TSA’s 24-page reply to the lawsuit (.pdf), a motion to dismiss filed Friday in U.S. District Court for the Northern District of Oklahoma, is that they don’t think they should be held responsible.  Much of their rationale is the standard technical stuff that one expects of defense lawyers and we’ll respond to that in due course.

One of their rationales, however, is so absurd, offensive, and regressive that I am shocked to see it written by anyone in 2019, let alone a well-educated woman from the U.S. Department of Justice.  In her motion, Assistant U.S. Attorney Rachael Zintgraff writes that a forced government strip-search just isn’t that big of a deal as to justify a lawsuit:

These allegations amount to no more than indignities, annoyances, and petty oppressions. Even if it was subjectively “embarrassing,” “disturbing,” “humiliating,” and “offensive,” for Plaintiff to lower her clothing and show the feminine hygiene product she was wearing, the intrusion on her privacy was no more severe than what could be routinely experienced in a women’s locker room, where states of partial undress and feminine hygiene products are subject to observation by other members of the same gender.

Is a rape victim’s trauma is no greater than they would have had during consensual sex?  Can peeping toms now use this same defense?  If not, then how can one possibly argue that having 2 uniformed federal employees force my client into a back room to show them her most intimate areas is in any way comparable to one voluntarily using a locker room?

The difference between “extreme and outrageous” and “just locker room embarrassment,” Ms. Zintgraff, is consent.  And respectfully, while I don’t personally have a lot of experience with women’s locker room etiquette, I must assume that inspecting each other’s pads is generally not a part of the experience.  At least DOJ attorneys have moved on from arguing that kids detained for weeks don’t need blankets or toothbrushes… it’s just unfortunate that they’ve now taken up selling out on women’s rights in order to avoid paying a woman who they violated.

Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be.  But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory.  I immediately filed suit.

Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”

What is “standing?”  The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.”  All that means is you have to actually have a specific legal “injury” to complain of.  A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes).  No standing = no lawsuit.

After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.

Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!”  What are the odds?  Redacted:

What are the odds? Redacted!

So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.

“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”

Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order.  In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it.  (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)

I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare.  This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons.  [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc.  Stay tuned for an update next month…]

Corbett v. TSA VI – Dismissed on Standing (.pdf)

Early Documents — Petitioner’s, Respondent’s, and Reply Briefing

Is It *Really* Impossible To Get A Gun License in NYC? (Part XI — Federal Court Refuses Challenge)

This is the eleventh installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed). 


After half a year of deliberation, United States District Judge Katherine Polk Failla has dismissed the first installment of my federal court case challenging New York City’s law allowing the NYPD to determine whether or not the citizens may exercise their Second Amendment rights (spoiler: they say no unless you bribe them or you’re connected with the department).

I like Judge Failla.  She seemed to be a thoughtful jurist, but my argument was for a change in the law that needs to be addressed by a federal appeals court.  Presiding over a federal trial court, she was bound by appellate precedent, and dismissal by her was a required step to getting to the proper federal appeals court, the U.S. Court of Appeals for the Second Circuit, which serves New York, Connecticut, and Vermont, to consider the case.

For those interested in the legal nuances, as a preliminary matter, the dismissal was predicated on a procedural issue: that my complaint framed the issues as a challenge to my denial (how the laws were “applied”), and not a challenge to the way the laws are written (a “facial” challenge).  Since my case was already decided by a state court, Judge Failla wrote that I may not have it re-heard by a federal court, an issue that only affects as-applied challenges.

Normally, this would just result in me filing an amended complaint re-framing the case as a facial challenge instead of an as-applied challenge.  Knowing this, Judge Failla saved us the time required to file the amended complaint and deal with a new motion to dismiss by giving us an “even if this were a facial challenge” version, citing the Second Circuit:

In support of his argument, Plaintiff directs the Court’s attention to case law from the Ninth, Seventh, and D.C. Circuits. (Pl. Opp. 9-10). Those circuits, Plaintiff claims, have “[struck] down nearly identical ‘proper cause’ requirements.” (Id. at 9). However, this Court is bound by Kachalsky, which is still good law in this Circuit.

Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2nd Cir. 2012), is a case out of the Second Circuit and exactly what I intend to ask that appeals court to reconsider.  In brief, Kachalsky stands for the proposition that the government may require you to give it a “good reason” to issue a gun license before doing so, even if the result is that ordinary citizens can’t exercise their gun rights. In light of the more recent precedent from other federal appeals courts, the Ninth, Seventh, and D.C. Circuits, where good reason laws were rejected, the Second Circuit will now get yet another chance to check itself when I file there shortly.

The U.S. Supreme Court prefers to hear cases whenever the federal appellate courts disagree with each other, and at this time, there is a substantial split among the circuits as to whether good reason laws are constitutional.  Given that the Supreme Court is poised to strike down another New York City gun law, preventing home licensees from transporting their guns outside of the city to go to ranges under any circumstances, perhaps now they will also be ready to take up the “good reason” issue.

Corbett v. City of New York – Dismissal Order (.pdf)

TSA Strip Searches Grandmother on Mother’s Day Over Feminine Hygiene Product, Gets Sued

Mengert ComplaintIt’s hard to imagine a more appropriate case for my first lawsuit as an attorney than that of Rhonda Mengert.  Mrs. Mengert hugged her grandchildren goodbye after a Mother’s Day visit last month in Tulsa, Okla., and given that she is a frequent flyer for work and has PreCheck status, expected an uneventful security search.

Instead, two screeners at Tulsa International Airport decided to humiliate her.  While patting down Mengert, a screener felt a pantyliner through her clothing.  The standard procedure in this instance is to complete the pat-down, including the test for explosive residue on the screener’s gloves, and send the passenger on her way.  For reasons still unknown to any of us, the screener instead called for a colleague and directed Mengert to enter a “private screening area” with them.  (As a side note, I have always told my friends and readers: never go into a private screening area with the TSA.  Miss your flight.  Let them threaten you.  Just don’t do it.)

Once in the private room, the screeners told Mengert that they needed to “clear the area” (“the area” being her underwear).  After being asked how they would like to do that, the screeners directed Mengert to take down her pants and underwear down to her knees to show them the pad.  Mengert was made to feel that she had no choice and complied.  Having been forced to expose herself, Mengert had to ask four times before she was finally allowed to leave.

The TSA publicly states that “TSA does not include strip searches in its protocols.”  But given that they were accused of doing basically the same thing to another woman last year, and seem to have a thing for strip searching older women, it seems the screeners and lower management have not gotten the message.

Mrs. Mengert retained me as counsel and last night I filed suit on her behalf against the TSA and the two screeners who inexplicably decided to break TSA policy and violate a woman, for being a woman, on Mother’s Day.  The lawsuit, filed in U.S. District Court for the Northern District of Oklahoma, seeks injunctive and monetary relief.  We hope this will be message received.

Mengert v. TSA – Complaint (.pdf)

If you know anyone who has been violated in a similar way, please contact me: corbettrights.com.

“The name above appears on the pass list for the February 2019 California Bar Examination.”

Jon Passes California Bar Exam

🙂

Justice is Slow: TSA Case Waiting 2 Years, Gun Rights Case Now 5 Months

Fully Briefed in 2017

I have two significant cases pending at the moment:

My readers regularly ask me (in comments, on Twitter, by e-mail, etc.) for updates, and my answer is always the same: I’ll post them as soon as I have them.  The gun rights case above has had the government’s motion to dismiss pending before the court, fully briefed (that is, all parties have been completely heard and we are just waiting on a ruling), for 5 months.  Especially considering the government shutdown earlier this year, that’s not abnormal.

However, yesterday marked the 2 year anniversary of the TSA case being fully briefed before the U.S. Court of Appeals for the Eleventh Circuit, which has neglected the case for that amount of time.  This is not the usual amount of time to wait on an appeal, so I sent that court an anniversary card this afternoon.  I wouldn’t exactly say that courts “appreciate” reminders that they are taking too long, but at some point, the prejudice to my case and our rights outweighs the risk of offending a judge’s feelings.

There is no statutory limit to how long a court can take, although courts often rule within 6 months because they have to report to Congress when cases take longer.  Be patient with me — and I promise I’ll post updates as they come.

 

Update: New Zealand Now Bans Shooter’s Manifesto, 14 Years’ Prison for Sharing

Cover of NZ Shooter's Manifesto
Possessing this in New Zealand can get you locked up for a decade!

Last week I wrote a brief blog post about New Zealand’s attempt to criminalize a video taken of the infamous Christchurch mosque shooting, leveling penalties of up to 10 years in prison for possession and 14 years for sharing it.  New Zealand, apparently, has a “Chief Censor’s Office” that gets to make decisions about what its residents may and may not see.

Today, the Chief Censor has doubled-down, now banning a document published by the shooter explaining his reasons for killing 50 Muslims as they prayed

The banned manifesto of the shooter, whose name I don’t really care to spread, clearly lays out the motivation behind this act of terrorism. The tl;dr version is that the shooter is a self-admitted racist who believes that non-white immigrants will take over “white countries” because of the combination of unchecked immigration and declining birth rates among white people.  In other words, this man is a white supremacist.

There are really two ways to address terrorism: 1) to take away the means, and 2) to address the root cause.  New Zealand, as many countries, has decided to go exclusively with the former, banning all semi-automatic weapons in a country where guns were already quite regulated.  But terrorists always find a means to accomplish their goals, whether with homemade bombs, speeding trucks, hijacked airplanes, or otherwise.

New Zealand’s approach not only fails to try to remedy underlying causes, but actually prevents its residents from gaining any insight into the same by hiding a primary source that reveals the motivation in detail.  At the same time, they place an authoritarian boot on the free speech rights (let alone gun rights) of their people with little benefit as future terrorists accomplish their goals via different means.

We can’t defeat terror by ignoring what motivated the terrorist.  Without my personal support for any of the ideas expressed therein, here’s the manifesto (.pdf).  Don’t click if you’re in New Zealand — that will be 10 years.

Sharing an “Objectionable Publication” Gets You 14 Years in New Zealand

The mosque attack in Christchurch, New Zealand shocked the world a few days ago with approximately 50 killed by a white supremacist who, in brief, explained that he considered Muslim immigrants to be invaders.  As part of his attack, he shared a livestream of the carnage, which has been re-posted around the Internet literally millions of times.

Because using tragedies to strengthen the government’s authority over its people is the thing to do in such situations, New Zealand has begun a crackdown not just on guns (already heavily regulated) but also free speech.  According to local police, who arrested a 22 year old citizen for one of the millions of shares of the video, “[t]he live stream video of the shootings in Christchurch has been classified by the Chief Censor’s Office as objectionable.”  The penalty for anyone who “knowingly makes or knowingly trades, distributes, or displays an objectionable publication via the Internet” is apparently up to 14 years in prison.

Chief Censor’s Office?  Yes, they really have one.

As an American, I get upset whenever my countrymen call to ban “hate speech,” to limit access to Internet and financial infrastructure to Web sites that have extreme views, or to demand that social media companies decide what is and is not “fake news” and remove such content.  Many of us do not know how privileged we are to not have a “chief censor” who can drag us out of our home for sharing something deemed to be too violent or otherwise “objectionable.”

“But why do we need to share such despicable acts?”  Because to outlaw doing so would be to hide reality.  To insulate us from the horrors of the world, as if it makes those horrors go away.  I’ve not seen the video nor do I have any desire to see it, but for the millions who chose to watch, they have a right to see the world as it is, and in doing so have allowed us all to have more confidence that we’re not being spoon-fed bullshit propaganda by a government “censor.”  Just as we should not allow China to hide the atrocities of Tiananmen Square, nor should we allow our own government to hide the gruesome photos of Vietnam, Waco, Abu Ghriab, etc., New Zealand is doing a service to no one by protecting its citizens from reality.

NYPD: Alerting Others to DWI Checkpoints is “Criminal Conduct”

Waze Checkpoint FeatureThe stopping of random drivers to check for sobriety without cause is a search that barely meets constitutional muster.  In 1990, the U.S Supreme Court ruled in a 6-3 split decision that sobriety checkpoints are legal (Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)), but part of its decision considered that drivers were free to avoid those checkpoints by making a u-turn.  About a dozen states have outlawed the practice.

If a part of the constitutionality of a search depends on one’s ability to avoid it (just like the “if you don’t like it, just don’t fly” argument in favor of TSA nonsense), then a means for obtaining knowledge of an impending search is necessary. Subsequent cases have made clear that citizens have the right to warn others of police activity: for example, judges in Florida, Kansas, and others have ruled that there is a constitutional right to flash headlights to warn other drivers of speed traps.

Yet, New York police have always had a thing for arresting citizens for “interfering” with them verbally, despite New York law (and possibly the Constitution, absent some pretty compelling circumstances) quite clearly stating that such a charge requires physical interference, intimidation, or interference with telecommunications systems (case ruling against the police when interference is non-physical, listing other cases where police lost the same arguments time and time again).  It’s therefore no surprise that an NYPD attorney sent a cease-and-desist letter to Waze, the driving directions app that allows you to flag checkpoints:

Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving. Revealing the location of checkpoints puts those drivers, their passengers, and the general public at risk.

Irresponsible?  Maybe criminal?  Given that the Supreme Court has, to date, not allowed secret checkpoints. that seems far-fetched.

The letter was written by Ann Prunty, who lists herself as “Acting Deputy Commissioner, Legal Matters.”  A review of State Bar records shows that she is a licensed attorney, which means she has the duty to avoid sending out letters like this without a good-faith basis for her assertions.

Of course, Ms. Prunty declined to respond to my request for clarification.  I’ll take that as an indication that she’s full of shit.

One silver lining: if the police do actually arrest someone for using Waze, this letter makes not just the individual officer, but the City itself, liable for the false arrest, since it’s now the official policy (“pattern or practice,” if you will) of the government.  Perhaps Ms. Prunty should think before she speaks and puts the taxpayer’s dollars on the line.

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