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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Advocate

Jon Completes Law School: A Review of Four Years at NWCU Law

Graduation CapOn Thursday, I took my final exams for my final year of school at Northwestern California University School of Law. Assuming I passed my exams, I now have a law degree making me eligible to take the February 2019 California Bar Examination, which I shall do.

If you’ve been following, you know NWCU is a distance learning school. They combine reading assignments, live online classes, recorded coursework, and a message board to accomplish a legal education. The American Bar Association categorically refuses to accredit law schools that offer distance learning, so graduates are left to take the bar exams of states that do not require the ABA’s blessing. That said, four years at NWCU cost me about a tenth of a traditional law school (~$15,000 — total, not per year), and I was able to do it without giving up the day job.

The graduation rate at NWCU seems to be in the range of 15%, based on a count of students in each year, so it shouldn’t be thought that this law degree is easy. It also requires passing California’s First-Year Law Students’ Examination after the first year, which is probably the biggest driver behind the low graduation rate given that the pass rate for that exam hovers around 20%.

I posted a review of my experience at around the 2 month point and the 2 year point. I still think those are fairly reflective of my experience: you must be self-motivated, have 2 hours per day, every day for 4 years, pay attention to deadlines, and know that if you don’t, no one’s going to remind you until it’s too late. It would probably be in eveyone’s interest if the school did more to keep people on track, but then again, you’re an adult in law school, and as a lawyer, no one is going to hold your hand to make sure you file that brief on time. I do also wish NWCU would update some of their materials that have obviously aged quite a bit, but then again, for most areas of the law, the curriculum hasn’t changed that much.

I look forward to beginning my bar prep shortly. I feel well-prepared and appreciate that I was able to learn the law with minimal disruption to my life. Three months until the exam…

Trump Bans CNN Reporter from White House after Firing Attorney General – Nationwide Protests Today

 

This blog is really, really not a political blog.  I’m a civil rights advocate, not a partisan.

However, the President today took two steps that cross a line from “politics I may not like” into “authoritarian behavior we should not tolerate.”

First, Trump demanded, and obtained, the “resignation” of U.S. Attorney General Jeff Sessions.  A.G. Sessions was a regressive who struggled to concede that heroin was more dangerous than marijuana, and no one on either side of the aisle would be sad to see him go but for the obvious reason for the firing: Sessions had recused himself from the Mueller investigation into Russian interference in the 2016 presidential election instead of shutting down the investigation as Trump wanted.  This crosses the line because a president must not interfere with law enforcement investigations, especially when his own staffers are the subject of those investigations (several of which have already plead, or been found, guilty of felonies).  I couldn’t care less if you think the Mueller investigation is a “witch hunt:” allowing an official to stop investigations into his own people is flatly fascist regardless of whether the investigation turns out to show no misconduct.  If Mr. Trump has nothing to hide, then there is no reason to obstruct this investigation.

Second, this evening Trump revoked the clearance of CNN’s White House Correspondent, Jim Acosta, resulting in the veteran reporter being unable to step foot on White House property.  The justification given by the Trump administration is that he “assaulted” a woman during a press conference.  Take 20 seconds to watch this alleged assault:

A White House intern attempted to take a microphone from Acosta, reaching over and grabbing at him, and Acosta’s arm grazed hers in the process.  It is clear that Acosta committed no “assault,” but rather that Trump was upset at Acosta’s line of questioning and thus ordered him removed.  The only assault here was Trump’s upon the press and upon the First Amendment, and for this, and for blatantly lying to the American public about what happened, Trump has also crossed a line.

Today, protests will occur across the country focused on Trump’s attempt to obstruct the Mueller investigation.  You may find your local event here.  Whether you vote Red, Blue, or are colorblind, ask yourself if the above is ok, and if not, step outside and let the White House know.

USPTO Grants Registered Trademark on Professional Troublemaker

USPTO Registered Trademark for Professional TroublemakerIt’s been a slow fall here at the Professional Troublemaker blog, as I prepare to finish law school in just 2 more weeks. There haven’t been any substantial updates on any of my lawsuits since the summer, as they work their way through the courts.

But, today I got a letter from the U.S. Patent & Trademark Office indicating that they’ve completed the registration of a trademark for “Professional Troublemaker.” Near the beginning of the year, I sent in an application, largely as a way to get some experience with trademark law. Filing trademarks can now be done entirely online and registration of a simple mark comes with a fairly reasonable $225 fee, so long as you complete the process without any paper filings.

I’m not sure I got too much useful experience or learned a whole lot from the process — I spent half an hour submitting online forms, gave them the filing fee, waited about 8 months, and got my mark with no hassle — but it’s always interesting to me to see how another area of law works.

So, watch out, imposter troublemakers: the name is mine!

(Why would I pick the name Professional Troublemaker? What is a “profesional troublemaker?”)

Stopped & Searched for No Reason by Bureau of Indian Affairs on Way to Burning Man? Here’s a Template to Sue Them!

BIA Lawsuit Template

Festival attendees, festival organizers, and the media are reporting that the U.S. Bureau of Indian Affairs, a part of the U.S. Department of the Interior, are indiscriminately stopping and, often, searching, vehicles as they pass through an Indian reservation en route to the event.  Numerous people have written about being told that they had “touched the center line,” were missing a front license plate (even when their vehicle was registered in a state that doesn’t require the same), or had been a few miles an hour over the speed limit, and then held up for a couple of hours while dogs were brought and then vehicles were searched.

If this happened to you, you should hire a lawyer.  But many simply can’t afford a lawyer or find a competent lawyer, so I’ve created a handy lawsuit template for you to sue the BIA officers who violated your rights, pro se, in federal court!

Here’s how it works:

  1. Download the template (below) and open in a recent version of Microsoft Word.  (OpenOffice or other freeware that supports .docx format are also fine.)
  2. Make sure “Show Comments” is on, because I’ve created little notes at each place you need to edit.  (How do I do that?)
  3. Fill out the form according to the little notes.
  4. Visit the U.S. District Court for the District of Nevada’s forms page and also fill out the following two short forms: Civil Cover Sheet (one for the whole case), Summons in a Civil Action (one for each officer you’re suing).
  5. The filing fee is $400.  If you legitimately do not have $400 to spare, you can file for free with this form (but the court will inquire as to your finances, so only do this if you legitimately cannot afford $400).
  6. Print 3 copies of everything and take them to the clerk’s office of the local federal court (address info here).
  7. After filing, you’ll need to serve the summons and complaint on the government.  The clerk’s office can provide you instructions, or you can just hire a process server.
  8. Also after filing, fill out and mail into the BIA a Form 95 (Federal Tort Claims Act claim form).  This isn’t required for the suit you just filed, but allows you a different kind of lawsuit if BIA doesn’t pay you within 6 months, and you can amend your complaint then to cover that new kind of suit too.

Bureau of Indian Affairs Lawsuit Template (.docx)

Remember, this template was designed only for BIA!  If other federal police stopped you, you can probably modify it on your own to state a claim.  But if local police stopped you, it requires modifications beyond just searching & replacing the name.  Also, if your incident resulted in the police finding drugs or otherwise arresting/citing you for a crime, please stop and seek a lawyer right away.

The publication of forms, guides, etc., does not constitute legal advice — see Dacey v. New York County Lawyers’ Association, 423 F.2d 188 (2nd Cir. 1970) — only a consult with an attorney can provide you legal advice because an attorney needs to hear your specific facts to provide advice specifically applicable to you.  As discussed, if you can afford to consult with an attorney before filing, that’s best.  If not, I’d rather see people make an attempt at seeking justice, even if imperfect, than allow their rights to be trampled.

Enjoy!

Is It *Really* Impossible To Get A Gun License in NYC? (Part X — Federal Lawsuit Filed)

This is the tenth 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). 


Federal Gun License ComplaintIn June, New York’s highest court refused to hear my challenge to New York City’s practice of giving gun licenses only to those with the right “connections” to the government — connections being bribe money, literally being a rock star, or just having friends in the right places.  Since the U.S. Supreme Court confirmed that Second Amendment rights are applicable to individuals without regards to “militia membership” in 2008, the New York Court of Appeals has plugged its ears to literally every case to come before it that asked the court to conform New York law to the Supreme Court’s mandate (as they must).

My state remedies now exhausted, I turn to the federal courts for help.  This morning, I filed a lawsuit in the United States District Court for the Southern District of New York against the City for its refusal to allow the ordinary, law-abiding citizen to arm themselves.

Full Complaint: Corbett v. City of New York – Complaint with Exhibits (.pdf)

If you’ve been following along, many of the arguments match up with those in the New York courts.  But, there’s a couple new things.

First, there have been some good decisions in other federal courts as of recent.  On the west coast, the 9th Circuit last month struck down Hawaii’s ban on citizen gun licenses in Young v. Hawaii (.pdf).  On the east coast, the D.C. Circuit struck down the same last year in Washington D.C. in Wrenn v. D.C.  These updates may or may not persuade the 2nd Circuit that covers New York, but they definitely make it more likely that the U.S. Supreme Court will hear the case.

Second, I’m adding a new equal protection claim that I don’t think has ever been brought here.  “Equal protection” is a part of the 14th Amendment to the U.S. Constitution that requires the government to treat everybody similarly unless there are really good reasons not to.  In this case, the main problem is New York’s “proper cause” requirement, which (in New York City and a handful of other counties in the state) demands that citizens show a reason greater than that of an ordinary citizen to get a license.  However, New York City exempts retired police officers from this proper cause requirement, even though there’s really no logical relationship between being a retired cop and “needing” a gun.  This brings up a classic equal protection scenario: if the NYPD wants to let its retired cops carry, it has to let me carry too.  If the court agrees, the City may have a choice between taking away guns from retirees or giving us plebs our constitutional rights — a political quagmire indeed.

The case is no. 18-CV-7022 and was assigned to U. S. District Judge Katherine Polk Failla, an Obama appointee.  The City will be served today and will have 3 weeks to craft a reply.  More updates then.

Third Circuit All But Immunizes TSA Screeners From Lawsuits for Abuse

Pellegrino v. TSA - Panel OpinionThe federal courts have had a very difficult time figuring out how people can seek redress against the TSA, either via policy challenge or challenge to specific abusive interactions with screeners.  The Third Circuit of the U.S. Court of Appeals, which services New York armpits New Jersey, Delaware, and Pennsylvania, has taken that challenge to the next level with two decisions that work together to make it very, very hard for someone who was abused by TSA screeners to win a lawsuit.

[Edit – The media is reporting the ruling as “TSA agents can’t be sued for false arrests, abuse, or assault.”  I disagree with this conclusion.  Read on…]

Vanderklok v. United States (.pdf), 868 F.3d 189 (3rd. Cir. 2017) was, relevant to the discussion, a suit against a TSA screener himself.  The plaintiff alleged, in brief, that a TSA screener got annoyed with him and told the cops he made a bomb threat, resulting in the plaintiff’s arrest.  Vanderklok made a First Amendment claim, arguing that his words were what annoyed the screener, and therefore the screener having him arrested violated his free speech.

Constitutionally-oriented lawsuits against individual government agents are generally known as “Bivens” lawsuits, and the idea is that if the Constitution provides a right, then it implies that the courts should be able to hear a case against someone who violates those rights.  The Third Circuit took to heart the U.S. Supreme Court’s direction that lower courts should hesitate to allow new kinds of Bivens lawsuits, and thus ended Vanderklok’s First Amendment challenge.  There is a long test the Supreme Court uses to counsel as to when Bivens should be extended to another area, but the most important part of this test is whether Congress has created some other kind of remedy.  If there’s another way to sue and be made whole, Bivens isn’t necessary.  Despite it being doubtful that there was another way to sue, the Vanderklok court emphasized that “TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers,” and therefore should be off the hook for retaliation claims because they don’t know any better.  (Don’t hurt yourself trying to appreciate the wisdom in that one.)

Poorly reasoned, but fine, if there is another way to sue.  The Third Circuit resolved that issue today.

Pellegrino v. TSA (.pdf), 15-3047 (3rd Cir., July 11th, 2018) addressed the only potential other way to sue.  Relevant to the discussion, it was a suit against the TSA itself (as opposed to Vanderklok, where an individual screener was sued).  Suits against the government for money damages come under the Federal Tort Claims Act (FTCA), a law written by Congress discussing the terms under which one may use the federal courts for such a suit.  The predicate for Pellegrino’s claim was similar to Vanderklok’s: a screener, annoyed with her, had her falsely arrested by the cops.

The FTCA allows for most types of personal injury claims (including civil rights staples like assault, false arrest, etc.) so long as the injury was caused by “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests” (28 U.S.C. § 2680(h)).  However, the courts have been hesitant to find that TSA screeners are covered by this law, notwithstanding the fact that their job is literally to execute searches, because TSA searches are, in the courts’ view, different from traditional law enforcement searches.  The Eleventh Circuit tossed several FTCA claims against the TSA of mine a few years ago, holding that TSA screeners are not “officers of the United States” (despite their job title literally being Transportation Security Officer).  Corbett v. TSA, 568 Fed. Appx. 690 (11th Cir. 2014).

Today’s ruling in Pellegrino does the same, although for different reasoning.  The Third Circuit found that the language the FTCA uses implies that Congress only intended it to cover law enforcement officers, and TSA is not law enforcement.  This ruling has 2 problems: 1) Congress’ intent is only relevant where the statute is ambiguous.  It strains credulity to argue that TSA screeners are not “empowered by law to execute searches,” in my view, but the Third Circuit concluded that “searches” is ambiguous enough to need to examine Congressional intent, 2) The FTCA was written before the TSA was created, so therefore Congress could not have had intent to exclude or exclude them, and 3) since Vanderklok foreclosed Bivens suits, there is now no recourse for those injured in the ways that Vanderklok and Pellegrino were injured.

Put another way, in New Jersey, Delaware, and Pennsylvania, there is now no recourse if a TSA screener intentionally, falsely calls the cops and says you threatened to blow up the airport, because they decided they don’t like your attitude.  If you spend the night in jail because a TSA screener lied, you’ve got no lawsuit.  Not against the TSA, the TSA screener, and probably not against the cops either.

The rulings don’t directly address more traditional Bivens claims, such as one for assault or false arrest.  If a TSA screener beats you or physically restrains you, you may (may!) still have a suit in the Third Circuit.  But malicious prosecution, retaliation, defamation, invasion of privacy, emotional distress, and conspiracy to do any of the same?  Congress intended that the TSA not be held accountable for that, says the Third Circuit.

The decision was a 2-1 panel opinion, with a well-reasoned dissent to the now binding law in that circuit (long, but worth a read).  I look forward to the plaintiff’s motion for rehearing en banc (by the full Third Circuit), for which I’ll be writing an amicus brief.

Is Pushing Someone on Train Tracks “Attempted Murder?”

I have to admit: when real life presents hypotheticals that are academically interesting for lawyers, I get a little bit excited.  Last year, a man named Kimani Stephenson made one for the law books when he pushed a woman onto New York City subway tracks.  The victim described it as follows:

“This guy, he came up behind me and he grabbed one of my boobs with one hand, and he grabbed my vagina. I told him to fuck off, and he pushed me onto the train tracks,” she recalled.

“There was no train coming, thank God,” Currie said. “I keep playing the scenario over in my head. There weren’t any MTA police on that particular track, so I don’t know what I would have done if there hadn’t been bystanders.”

Clearly, the defendant is guilty of assault and other crimes, but is he guilty of attempted murder?

At common law (the law we inherited from the British), attempted murder requires 2 things: 1) taking an action towards the death of someone (a “substantial step”), and 2) the intent that your actions result in the death of that person.  That second part is called a “specific intent” requirement.  That is, it’s not enough that you did what you did on purpose, but rather that you must, in your own mind, intend a specific result.  Modern New York law on the matter doesn’t substantially deviate from the common-law view.

The first element is not very interesting: pushing someone on a train track is undoubtedly a substantial step towards murder.  The second element is where the fun is.  Like any good law school essay question, you can argue that specific intent both ways.  You can argue that one doesn’t push someone onto train tracks unless they want them to die.  However, if your law school essay doesn’t also pick out the words, “There was no train coming,” you lost major points on this question.  The defense will argue that pushing someone onto an empty train track is unlikely to cause death and shows that the defendant didn’t actually intend that the victim die from the actions.

But New Yorkers love throwing the book at the bad guy, and so when Manhattan ADA Maxine Rosenthal decided to press attempted murder charges, the local Reddit community cheered:

Reddit Does Not Like Kimani

…and I was mocked for being a soft on crime or ignorant on the law, including by several “Internet lawyers,” for trying to explain the above…

too_soft

Unfortunately, no charity will be getting a $500 donation, as a Manhattan jury acquitted Mr. Stephenson of attempted murder last week:

“We felt he acted in a fit of rage and he wasn’t thinking enough to have premeditated anything,” said juror Catherine Wald, 64.

“There was no argument, proof or any evidence he had intent in the moment to kill her even though we all got convinced he was the perpetrator,” added foreman Dmytro Zhuravtsky, 44, who works in quantitative research at a large financial institution.

Fear not: the perpetrator still faces 25 years in prison on the first degree assault charge (which, if I’m reading correctly, comes with a 5 year mandatory minimum).  But, say it with me: it’s not attempted murder unless the defendant actually intended that the victim die.  On the situation presented here, I don’t know how the ADA intended to prove the specific intent beyond a reasonable doubt.  The charge should not have been brought.

The ADA and defense counsel were contacted for comment but have not replied as of the publication of this story.

Is It *Really* Impossible To Get A Gun License in NYC? (Part IX — N.Y. High Court Won’t Hear)

This is the ninth 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). 


A brief update: To the surprise of no one, the N. Y. Court of Appeals has denied (.pdf) my motion for leave to appeal my gun license case, this concluding my state-level judicial remedies.  In doing so, the Court has continued a long-standing tradition not of coming out and approving the City’s gun laws, but refusing to even consider the matter.  Since the U. S. Supreme Court clarified a decade ago that the 2nd Amendment is an individual right not tied to militia membership, the N.Y. Court of Appeals has refused every case that has come its way on the matter.

The leading case on gun rights in this jurisdiction is, in fact, a federal case that the N.Y. high court also refused to hear.   And so, this is the way my case will go: the next update will be a pleading filed in the U.S. District Court for the Southern District of New York, asking the federal courts to declare that the due process I have received to date has been deficient.  My license app was decided by a corrupt cop, reviewed by a court that applied the wrong standard, and appealed in courts that simply didn’t care.

Let’s fix this.  Stay tuned.

 

NYPD Union: City Complaint Agency “A Disgrace” for Fourth Amendment Tweet

In New York City, garden-variety complaints of police officer misconduct can be filed with the Civilian Complaint Review Board, a city-run agency with the power to investigate complaints and recommend sanctions to the police commissioner when warranted.  The existence of the CCRB provides an avenue for the public to report problems other than to the courts — probably saving the city a fortune every year in judgments, settlements, and legal fees.

On May 4th, the CCRB tweeted about the Fourth Amendment, with a link to report to them police violations of the same.  This was apparently too much for the NYPD’s Sergeants Benevolent Association, who responded on Twitter with this gem:

 

And cops wonder why the NYPD is, er, unpopular, with the people: they think they are above the law because they have a difficult job.  Accountability and respect are not mutually exclusive, and the NYPD must stop this childish us-vs-them mentality with those who demand the former as a prerequisite to the latter.

It’s not a surprise that this is the #1 most liked reply on the SBA’s tweet:

  

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