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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

U.S. District Court: TSA Not Immune in Right-to-Film Lawsuit

TSA says right on its Web site that photo and video at the checkpoint is no problem, so long as you’re not in the way and not trying to capture the content of their computer screen. It’s also a Fourth Amendment right to record government officials doing their work in public, as has been affirmed time and time again. So why was my client, who simply wanted to capture his husband’s pat-down on their cell phone camera, told by a TSA supervisor at Richmond International Airport that not only must they stop, but also delete the video that they started to take?

Probably some bad training, probably some bad attitude, but regardless, U.S. District Judge John A. Gibney, Jr., in the Eastern District of Virginia, wasn’t having it, and today denied TSA’s motion to dismiss on qualified immunity grounds, as well as rebuffing TSA’s attempt to preclude Bivens remedies from being applied to checkpoint abuse.

Bivens is the landmark case allowing for money damages for some constitutional violations, most often for Fourth Amendment search-and-seizure abuse. The U.S. Supreme Court has shown some hostility towards using Bivens in other contexts, recently calling it a “‘disfavored’ judicial activity” and requiring courts to accept pretty much any reason that might suggest that Bivens remedies should be disallowed as good enough to disallow it. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). And here, TSA argued them all: that it would harm national security, interfere with their ability to do their job, and cause great hardship in their screener training process. But making TSA screeners follow the Constitution doesn’t implicate some kind of state secrets, and regarding training, well:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

…or in other words, if TSA isn’t already training their employees to follow the Constitution, now would be a great time to get started with that.

Regarding qualified immunity — the idea that government officials should get a pass if the courts hadn’t already made clear that similar conduct was illegal — the court had no trouble concluding that TSA is not “special:”

“[T]he First Amendment protects the right to record government officials performing their duties … to enable any citizen at any time to bring the government and any person in authority to the bar of public opinion …

In addition, when we protect the right to record public officials, we protect against the degradation of various other constitutional rights. This country’s racial unrest highlights this principle. Because a cell phone video captured George Floyd’s death, the world watched. The world’s reaction to this video — and others — sent millions into the streets in protest. Although the racial reckoning continues, this video and the protests it sparked bent ‘the arc of the moral universe … towards justice.’ Dr. Martin Luther King, Jr., Remaining Awake Through a Great Revolution (Mar. 31, 1968). What if the officers had ordered the video that captured George Floyd’s death deleted?”

It certainly makes this civil rights lawyer warm and fuzzy to have a judge quote Dr. King while a ruling in his favor.

Dyer v. TSA – Motion to Dismiss, Denied (.pdf)

Second Circuit to Consider N.Y. Music Advertising Ban; Amicus Brief Filed

In response to the coronavirus pandemic, New York Gov. Andrew Cuomo has already banned concerts by prohibiting any indoor food service establishment from any method of operation other than seated dining, and at sharply reduced capacity limits (35% in New York City, 50% elsewhere in the state). But, never content to be minimally invasive, the state also felt that it must prohibit advertising of any musical performances at restaurants, as well as the charging of admission to enter.

I was the first attorney to file suit against these advertising and ticketing restrictions as entirely arbitrary and lacking any relationship with stopping the pandemic — not to mention a restriction on free speech (yep, advertising is speech!). The state argued that the restrictions only apply to illegal events, rather than restaurants with incidental music, and so the court in my case accepted that and declined to grant a preliminary injunction. That case was New York Indep. Venue Ass’n v. Bradley, 20-CV-6870 (S.D.N.Y.).

This would be fair enough except for the fact that the government continues to publish this advertising and ticketing ban without any mention that it applies only to “illegal events,” so two more attorneys sued, and they won. Those cases were one in state court, Sportsmen’s Tavern LLC v. N.Y. State Liquor Auth., Index No. 809297/2020 (N.Y. Sup. Ct. Erie Co., Oct. 15th, 2020) (permanent injunction issued), and one in federal court, Hund v. Bradley, 20-CV- 1176 (W.D.N.Y., Nov. 13th, 2020) (preliminary injunction issued).

The government has appealed in both cases, and while state court appeals move at a snail’s pace, the federal appeal in the U.S. Court of Appeals for the Second Circuit is almost ripe for review. Both sides have filed their opening briefs and the government’s reply brief is due this week. And, of course, I submitted an amicus (friend of the court) brief to make sure the Court understands that the government is engaged in misleading the courts:

[New York Independent Venue Association’s] position in the district court was, and still is, that the [N.Y. State Liquor Authority] intended a broader scope than it represented in court, and its lawyers “creatively” narrowed the scope post hoc in order to survive judicial review. The government’s opening brief in this case makes it painfully clear that NYIVA was correct and the attorneys for the government in the NYIVA case misled that court. Appellant’s Brief, p. 3 (“Holding advertised, ticketed shows is still prohibited by executive orders”), p. 10 (“bars and restaurants are prohibited from hosting ‘advertised and/or ticketed shows’”). In other words, the SLA here argues that the mere act of advertising or ticketing turns an otherwise lawful event into an unlawful one.

The government knows, or should know, that the Constitution prohibits it from banning advertisements of lawful goods and services absent exceptionally compelling reasons. Given that concerts are already prohibited as a result of the seated table service requirement, those reasons are utterly absent here. So why is Cuomo wasting time and taxpayer dollars on this? Probably just to distract from his nursing home scandal, wherein the state ordered nursing homes to accept its residents back from hospitals without regards to whether they were still infected in coronavirus, resulting in 13,000 seniors dead and a massive cover-up.

Let’s hope the Second Circuit affirms the glimmer of sanity provided by the district court in the Hund case.

Hund v. Bradley – Appellant’s (Cuomo’s) Brief (.pdf)

Hund v. Bradley – Appellee’s (Hund’s) Brief (public version available shortly)

Hund v. Bradley – Amicus NYIVA’s Brief (.pdf)

A Full Decade of Litigating Against TSA

When you do something for long enough, it’s hard to remember life before you did that thing.

Now 10 years after young me — with no legal education — brought the first complaint against TSA body scanners, it’s hard to imagine a time when going into an airport was a comfortable experience before which you didn’t ponder what variety of molestation or harassment you’d encounter. Or a time when the sounds of metal detectors didn’t generate the same emotional response for me as nails on a chalkboard. But it’s also hard to imagine a time when I didn’t serve the public as an advocate for the privacy of humans as they move from one place to another.

I’ve learned that it matters not whether an “R” or a “D” appointed the administrator of the TSA: both sides are quite capable of authoritarian policy. While I’ve not been shy about being pleased to see Trump go, I promise to keep Biden’s appointee in check just as I did Trump’s, and just as I did Obama’s. Our system of government, and especially our system of justice, requires representation of both sides of any issue. Now with proper legal education and a decade of learning how to hold the government responsible, I look forward to continuing to represent those who have been wronged by poorly planned or executed government policy (or as I’ve bluntly referred to it in the past, government assholery), as well as continuing to pressure the government to create and implement prudent policy to avoid those injuries in the first place.

To those who have been here with me since 2010, thank you, so much, for your continued support. To those who have just had their first negative encounter with the government, I am sorry, and welcome aboard.

Cuomo to Court Considering NYC Midnight Food Curfew: “The Government Is Not Required to Justify an Executive Order”

One by one, New York Governor Cuomo’s arbitrary, irrational rules are coming down. Last week, I wrote that challenges to a ban on advertising or ticketing music at restaurants was destroyed as a result of a pair of court challenges (one of which I argued). This week, a federal court in Brooklyn will hear arguments on another challenge I’m working on: the midnight food curfew.

What’s that? New York City finally just got the blessing of the Governor to resume indoor dining last week — well over 6 months after closing mid-March and likely last in the nation — with massive restrictions: 25% max capacity, air filtration upgrades, and a midnight closing time. Yes, for some reason, the Governor decided that it is only safe to be in a restaurant until the clock strikes 12, after which your risk of corona becomes excessively high. To clarify, this rule applies to restaurants — even those serving no alcohol — and applies even though only seated dining is allowed with full social distancing (no mingling, no dancing, no fun).

I filed suit on behalf of a Brooklyn restaurant to challenge this rule (which received some media attention, and a hearing on our motion for a preliminary injunction is tomorrow at 12:30 PM, public audio: (571) 353-2300, access code 188465608#. The written briefing on the motion went pretty normally… tl;dr: I argued that there’s no reason to subject NYC to restrictions that aren’t used elsewhere in the state or country, they argued that NYC is special because of it’s population, I replied that they failed to demonstrate why higher population means restaurants must turn into a pumpkin when the clock strikes 12. If you want the long version of that:

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Opposition (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Reply (.pdf)

It gets more interesting: the state included a declaration by Dr. Elizabeth Dufort, Director of Epidemiology for the NYS Department of Health, and the judge ordered her to appear at the hearing for questioning. This is perhaps the first time I’ve seen a judge take serious interest in examining the facts, seemingly triggered by Dr. Dufort’s apparent expertise in everything from how people behave in bars, to how restaurants handle arriving and departing guests, to the details of state law, to medicine (the latter of which I concede she may be qualified to discuss).

The government apparently did not like that order, and filed a motion for reconsideration, noting that Dr. Dufort was not available and that her testimony does not matter because “the government is not required to justify an executive order.” After a scathing opposition, they “found” the Dr. and withdrew their motion.

I very much look forward to asking Dr. Dufort some difficult questions tomorrow.

Two Courts Destroy NY SLA’s Ban on Advertising and Ticketing Music

Four weeks ago, I filed a lawsuit on behalf of an industry association and several restaurants against New York’s State Liquor Authority for a curious new coronavirus-related rule that appeared on their Web site: a ban on advertising music offerings or charging admission at liquor-licensed establishments that sell food (i.e., restaurants). Licensees called the SLA to clarify, and were told in no uncertain terms that any advertising of any music whatsoever, or any attempt to charge an entrance fee — including table minimums — could result in a license suspension. The suit was filed in the U.S. District Court for the Southern District of New York, and a motion for a preliminary injunction (asking the judge to temporarily put a hold on the rule) was set for expedited briefing.

The state already allows only restaurants — not bars or clubs without a full menu — to operate, and only with seated dining, strict capacity limits, social distancing requirements, and other limitations. Dance parties, concerts, etc., were already prohibited, so what’s the difference for coronavirus mitigation purposes if your favorite eatery has a band playing while you have dinner? Or if you have to pay to enter?

It seems the state’s attorney’s couldn’t come up with an answer to that question, and so, contradicting the phone guidance from the SLA issued pre-lawsuit — surely developed at the demand of Governor Cuomo — the state conceded that the advertising and ticketing bans apply only to “performance events” — not to legal “incidental music” at restaurants. A federal judge today accepted that limitation and denied our motion for a preliminary injunction since the issue is essentially moot.

“And the government has explicitly clarified that advertising for incidental music is permitted. … The State’s representative confirmed that during our argument here.”

Hearing Transcript (.pdf)

The Erie County Supreme Court also heard a challenge to the matter, and on Tuesday took a bit of a different approach: the Court found that the rule did affect legal incidental music and therefore it was unconstitutional. The transcript of these proceedings is not yet published — I’ll seek to update when it is — but the effect of this is roughly similar: to the extent that a restaurant wants to advertise or charge to see its lawful music offerings, it may.

The courtroom drama comes as New York continues to have a “flat” curve, as it has for months. Despite this, upstate New York restaurants have opened only with substantial limits and New York City restaurants reopened indoor dining yesterday — with 25% capacity and a midnight food curfew, after 198 days of closure.

NY Coronavirus Curve
New York’s coronavirus curve has been flat for about 3 months. Source.

The Governor is playing politics with re-opening New York City, whether because of his ongoing feud with Mayor Bill de Blasio, because he does not want to relinquish his emergency authority, or maybe just because of a bias against those who live in the city. Slowly but surely, however, the Governor’s rules (and, let’s be real: there’s no way the SLA made this rule without a demand from Cuomo) are being dismantled.

Temporary Restraining Order Requested Against New York for Music Ban

I shared last week a new lawsuit filed by me on behalf of the food service industry in New York, challenging the state’s ban on advertising music or charging admission to enter any establishment in New York licensed to sell alcohol. As a small update, we filed a motion for a temporary restraining order against the state today…

As continued speculation, perhaps the government believes that people who attend events with advertised music will somehow behave differently at these events. But this fails for two reasons. First, no matter whether there is music or not, the rules require all establishments to keep their guests seated, at tables, and order a meal. Dancing – or any other conduct likely to occur in the presence of music that requires leaving one’s seat – is prohibited. A person sitting a table, eating a meal, and enjoying a live music performance is no more likely to spread coronavirus than one doing the same in silence. Second, whether there is advertising or not, music is still permitted. The advertising of the same does not change a thing about the behavior of the guests. It also would not limit third parties 3 from collecting a list of establishments that feature music and distributing it on social media. This would make the rule futile, and it would be naïve to think that this is not already happening. A futile rule is, obviously, not “reasonably necessary.”

I expect there will likely be a hearing scheduled within a matter of days.  The case has been assigned to U.S. District Judge Gregory H. Woods, an Obama appointee and quite capable jurist.

NYIVA v. Bradley – Motion for Temporary Restraining Order & Preliminary Injunction (.pdf)

New York Sued for Banning Restaurants from Advertising Music

NYIVA v. NY SLALast week, the New York State Liquor Authority announced a rule that food service establishments licensed to sell alcohol could no longer advertise any music offered during the dining experience, in a rule absurd enough to surely have been drafted by Governor Andrew Cuomo himself. This rule, which also bans tickets or admission charges to food service establishments, is a clear violation of the First Amendment rights of the state’s liquor licensees.

By and large, the food service industry has done its best to comply with each and every rule and request of the Governor and his agencies in order to provide a safe environment for the public. However, the industry has received no financial support from the state, and the cost of complying with rules that change on a near daily basis is destroying the industry. It is predicted that 1 in 3 food service establishments in the state will never reopen as a result. When all establishments are requiring seated table service, limited capacities, and social distancing, announcing the music selection or having a cover charge simply does not contribute to the spread of coronavirus.

I’m pleased to note that I now represent the New York Independent Venue Association and 9 of its members across the state in taking the New York State Liquor Authority to court over the matter. Case No. 20-CV-6870 in the United States District Court for the Southern District of New York.

NYIVA v. Bradley – Complaint (.pdf)

Attorneys Beware: Check Scam from Fake Clients Overseas

A few weeks ago, I received an e-mail from a “prospective client” in the U.K. requesting help with a straight-forward contract matter.  Contract litigation isn’t exactly why I went to law school, but something I do help out with from time to time…

Initial Scam E-mail
Seems like a good start…

(Identifying information redacted because I’m fairly sure the scammer stole the identity of an innocent person and company.)

We discuss more — both phone and e-mail — and he sends me a signed contract and invoices indicating that he was owed $150K for architecture services: CAD drawings of a residential home. No problem, I’m a California lawyer, you want to sue a California client for breach of contract, you have a signed writing, and if they can afford $150K just for architecture on their residence, they probably have some cash to collect.  Good deal.

Fake Architecture Contract
Fake architecture contract… seems legit, no?

I send over a retainer agreement and he promptly returns it signed.  Now all I need is the retainer deposit and — oh, wait, an e-mail indicating that the other side wants to settle the matter and I should hold on!  Several days later, I receive a cashier’s check and a note from my client saying that they resolved it and he just needs me to deposit the check, take my fees out of it, and send me the money.

Fake Cashier's Check
If it says “cashier’s check,” it must be good! Right?

For the uninitiated, this is a variation of a classic check scam: someone purchases any kind of goods or services and overpays you in some way “by accident.”  But, no problem, just deposit the check, send them what they ordered, and whatever the extra is, just wire it back to them!  Of course, the check is a forgery and because American banks are still in many ways stuck in the 20th century, it often takes them several days to let you know, “hey asshole, you got robbed!”  In the meantime, you’ve sent their order and a whole bunch of cash that you now owe the bank, and they’ve disappeared never to be seen again.

This would have cost my clients nearly $100,000 (as the check would be deposited into, and the soon-to-be-reversed proceeds wired from, my client trust account), which I’m quite sure the State Bar would expect me to repay out of my own funds.  Your insurance may not cover this (the banks sure won’t — it was you who initiated the wire, right?). Spotting the scam early, I insisted that the “client” pay the retainer deposit first rather than take it out of the cashier’s check, which after a bit of arguing caused the “client” to take his business elsewhere.

Be wise, business owners… there are people trying to take advantage of you everywhere and they don’t care if you’re ruined as a result.  In the law world, having a solid retainer agreement, requiring a deposit before beginning any legal services, and being suspicious of irrational client requests — like being “paid” to move $100K for an agreement I didn’t even negotiate — saves the day.  And of course, make sure any check actually clears (not just becomes temporarily available, but call the bank and confirm they have the funds from the sender’s bank) before wiring money away.

Cuomo Barks Louder for Travel Quarantine, but Health Department Offers “Hearing” to Escape

Almost as if he was a reader of my blog post noting that N.Y. Gov. Cuomo has so far done not a damn thing to enforce his travel quarantine order, yesterday he announced that he’d station police officers at airports to force them to fill out contact tracing forms.

As I considered re-instatement of my lawsuit against the travel quarantine, voluntarily dismissed because of Cuomo’s failure to enforce, I noticed something new in the Health Department’s order: anyone who can demonstrate that they shouldn’t need to be quarantined can request a hearing.

Well, isn’t that fancy?  I, for one, am going to take him up on it, and I encourage everyone who might possibly travel to New York to do the same.  So here’s a quick sample of what a hearing request might look like*:

Quarantine Hearing Request Form

Quarantine Hearing Request (Word Version — fill out details, then print & mail)

Quarantine Hearing Request (PDF Version — print, hand-write details, & mail)

 

 

Enjoy!

 

* This form is a sample document preparation.  It is not legal advice; legal advice can only be provided by a licensed attorney who has reviewed your particular circumstances.  No attorney-client relationship is created by your downloading or use of these documents.  Please do not e-mail me questions about use of this form; I would only be able to respond if and when I agree to be retained to assist with your case.

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