On June 24th, New York Governor Andrew Cuomo announced a mandatory 14-day quarantine, under penalty of forcible quarantine and large fines, for anyone entering the state from any of 9 “coronavirus hotspot” states. As you cannot protect a population that is already broadly infected by “quarantine,” I immediately filed suit against this irrational and unconstitutional restriction on our right to travel between the states.
A hearing is scheduled for Thursday at 2 PM on my motion for an emergency temporary restraining order in front of U.S. District Judge Lorna Schofield in the Southern District of New York. But in the meantime, the Governor has doubled-down by expanding his list to a total of 16 states:
This list, including the 1st, 2nd, and 3rd most populated states, includes about half the population of the country.
I look forward to seeing Cuomo’s people in court on Thursday. In the meantime, I’ve filed an amended complaint adding details and challenging the allegedly mandatory form that travelers must fill out when crossing the border (see Exhibit B for that one)…
This morning, I filed suit against New York Governor Andrew M. Cuomo in regards to the “quarantine” he and two neighboring governors announced yesterday. This particular quarantine requires anyone incoming to the state who has been to states that the governors find have unacceptably high rates of coronavirus to self-quarantine for 14 days. Failure to self-quarantine results in forcible quarantine and a massive bill.
New York, perhaps because of the population density of New York City and its reliance on public transportation, was hit almost first and by far the hardest of the states by the coronavirus pandemic. Since April 7th, however, the state has seen a steady and consistent decline from 799 deaths in a day to 27 a couple days ago. That said, there are still about 600 new infections confirmed in the state daily, and the best numbers I can crunch suggest that tens of thousands of New Yorkers currently have an active coronavirus infection, whether diagnosed or not.
In this context, it is shocking to me that anyone would propose a quarantine to keep the virus out of New York. If anything, there are probably places that should be quarantining us (and, many countries are indeed not accepting American tourists right now). The cat is out of the bag, and coronavirus, although substantially reduced from the peak, can be found in every village, town, and city in the state. An infected traveler from out-of-state simply cannot affect the statistics when we have tens of thousands of people in the state already who are currently shedding the virus.
This reeks of a political stunt. Whether it’s retribution for other states imposing travel restrictions on New Yorkers, or a middle finger to Trump for encouraging states to re-open, or an attempt to appear “tough on corona” to voters, I don’t know and don’t care. What is clear is that this step cannot deliver any public health benefit, but will certainly cause substantial interference with our constitutional right to travel.
“We have a constitutional right to travel?” Indeed. Like the right to an abortion or to get married, the right to travel appears in the U.S. Constitution not in explicit words but in the due process clause of the Fifth and Fourteenth Amendments. Due process involves not only the right to a trial and so forth (“procedural due process”) but also a right to be free from infringements on our liberty absent a good reason (“substantive due process”). The standard for whether a public health concern is a good enough reason comes from over 100 years ago when a state made smallpox vaccination mandatory and ended up on the receiving end of a lawsuit. That case, Jacobson v. Massachusetts, 197 U.S. 11
(1905), required a “real or substantial relation” between the health concern and the government’s restriction. “Real or substantial” is more than just rational, or plausible, but rather courts have required the government to actually explain how A leads to B, and often to consider less invasive means. (Speaking of, there are obvious alternatives: for example, allowing people to escape quarantine by getting tested, or simply checking body temperature of people flying in.)
My lawsuit, filed in the United States District Court for the Southern District of New York, comes along with a motion for an emergency temporary restraining order. I shall leave you with the conclusion:
The Governor is free to come before the Court at any time with evidence to show that the challenged order is actually necessary to protect the public health. After all, the state should already be in possession of such evidence before issuing an order as drastic as the one challenged. If and when such evidence is provided, the Court may immediately lift the TRO. Until that time, the government should be ordered to “PAUSE” itself.
Is this motion likely to be successful? Well, I fight the hard cases, and this is a fight worth fighting. We’ll leave it to the Court to determine whether the fight wins the day.
Case is Jonathan Corbett v. Andrew M. Cuomo, 20-CV-4864 (S.D.N.Y.).
This is the thirteenth 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), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals).
Total Time Spent So Far: 79 hours
Total Money Spent So Far: $2,296
In July last year, I filed a notice of appeal of the U.S. District Court’s decision that New York City’s gun licensing scheme was constitutionally sound. Federal court appeals are heard by the appellant filing a brief, the appellee filing an opposing brief, and the appellant gets an opportunity to file a reply brief. Often, but not always, oral arguments are heard, wherein the parties get a short period of time (typically, 5 – 15 minutes each) to persuade the judges hearing the case and to answer their questions.
Oral arguments were ordered in this case and heard on June 3rd, 2020. Getting the Second Circuit to overturn longstanding precedent regarding New York gun laws was always a long shot, so I prepared for a somewhat hostile reception. The judges randomly assigned, however, were two Trump appointees and 1 Bush 43 appointee — a favorable selection for a gun rights case. Because of coronavirus, the arguments were telephonic, and a recording is available from the court (.mp3).
Alas, despite the favorable panel selection, the judges apparently had made up their mind before hearing arguments, as they put out a 5-page opinion the next day (.pdf) affirming the judgment of the court below. The judges did not reach the merits of the case (the constitutional issue). Instead, they agreed with the city that because of the way I presented my case in state court, I could not challenge again in federal court.
Let me try to explain. Some cases can be heard in both state and federal court — gun issues are one of them. However, if your case is heard in state court, it generally can only be heard in federal court if the state court doesn’t provide the same type of remedy (in the legal world, we describe this issue using the Latin phrase “res judicata“). Gun license challenges in New York courts (called “Article 78” proceedings) typically only come with the remedy of ordering the issuance of the license or a new administrative hearing, while in federal court I can ask for money for the infringement of my rights. So, I should have been good. The problem is that when I asked for the review of my gun license issue in state court, I also asked them to review their refusal to provide me with records I requested. The federal court held that this type of case allows for money damages also. In other words, if I had filed 2 separate cases — one challenging the gun license denial and the other challenging the records refusal — my case could be re-reviewed in federal court, but since I did both at once, no dice.
As far as I can tell, this is the first case in which such a distinction has been made, and in my opinion creates an unjust result: there should be no penalty for saving the courts time by asking them to hear two matters at once. Needless to say, it leaves my court battle over my 2015 gun license application dead, as although I can appeal to the U.S. Supreme Court, it is highly unlikely that they have interest in hearing such a case.
But, the fight is not over. Stay tuned for Part XIV over the next month or two, in which we explore the contours of New York’s “proper cause” requirement. 🙂
Jamii Erway is a 16-year-old girl in North Carolina who is used to getting false alarms when she goes through TSA body scanners. The reason is that Jamii is transgender — she was born male and now lives as a young woman — and the TSA screener operating a body scanner must press a “Male” or “Female” button for each passenger. If the operator presses “Female,” the machine will alarm if the traveler has external genitals. If the operator presses “Male,” the machine will alarm they are wearing a bra. (And, well, if you have a penis while wearing a bra, the machine will alarm no matter which button is pushed.)
I can only imagine that dealing with transitioning genders as a teenager is an extraordinarily difficult experience even without having to deal with the TSA.
TSA standard procedure for when the body scanner alarms on the “groin area” is that a quick pat-down using the back of the screener’s hands is done at the checkpoint to ensure that the traveler is not in possession of any prohibited items, as Jamii had experienced several times before. But, when triggering the scanner last May at Raleigh-Durham International Airport, a confused scanner operator called over a supervisor who decided to invent a new procedure for transgender travelers: she told Jamii she must go to a private room, expose herself, and let her “feel up in there.” That is, a TSA supervisor demanded to molest a child. When Jamii’s mother, traveling with her, attempted to intervene, the supervisor told the mother to “mind her business” before trying to recruit her to pressure Jamii into submitting to the “search.”
TSA policies prohibit checkpoint screeners (and supervisors) from conducting strip searches (even though they continue to happen at the hands of “rogue” screeners, knowing that they are unlikely to face discipline). Police and high-level TSA managers were called thanks to a mother unwilling to bend under pressure from a blue-shirted thug, and when police refused to back the search, Jamii and mother left the airport and drove 600 miles to their destination.
As best we can tell, neither the police nor TSA management took any action against the supervisor who wanted to violate Jamii — so on Monday I filed suit on behalf of Jamii in the U.S. District Court for the Eastern District of North Carolina. The actions of the TSA here disgust me more than usual given that this is my first case on behalf of a child, and given the apparent discriminatory motivation. I look forward to obtaining some justice for my clients and hopefully sending a message that transgender people are not second-class citizens while flying.
Americans have already filed 3.3 million unemployment claims — a number which may grow many times over in the coming weeks — as (predominantly) small businesses across the country have been ordered to close to slow the spread of coronavirus. This, combined with what I’m seeing on social media, leads me to believe that there will be millions of Americans who are unable to pay their rent in a few days.
Right now, many (probably, most) courts nationwide are closed to all non-emergency matters. For example, in New York, state courts have been ordered closed “until further order” and attorneys are barred even from e-filing documents. California has done away with in-person hearings and the Chief Justice of the state supreme court has given all lower courts permission to close (an invitation which most courts have accepted). Needless to say, breach of contract and eviction proceedings are not considered emergency matters, and even when the courts re-open, the flood of cases will cause delays that I expect will add months to non-emergency matters.
While it’s hard to generalize for every circumstance and every state, if you can’t pay your rent right now, don’t stress. If you think paying your rent now might mean not being able to afford food later, don’t pay your rent. And still don’t stress. You are in a unique position to negotiate with your landlord because: 1) your landlord can’t immediately throw you out since the courts in most jurisdictions are either closed or backlogged for months, and 2) if landlords throw out everyone who didn’t pay April rent, there would be more vacancies than demand, causing landlords to lose massively on the value of their property — and they know this, so they will avoid it by negotiating your continued tenancy. For once, the free market is working in your favor.
Instead, do save what you can (preferably in a separate bank account) so that you have money to negotiate with. In June, saying, “I’ll pay you half what I owe you and starting July I’ll go back to paying full price if you’ll forgive the rest,” gives you a lot more leverage than, “I’ve got nothing for you, but trust me, I’ll start paying soon.”
Finally, while your state may be talking about some kind of rent bail-out bill, please understand that while this feels like the right thing to do, it might not be possible. Such a bill could demand that landlords eat the loss, but there are constitutional concerns with that. In particular, the Constitution says, “No State shall enter into any … Law impairing the Obligation of Contracts.” U.S. Const., Art. I, § X, Cl. 1 (the “contracts clause”). This problem could be solved by the state eating the loss, but can your state afford to pay everyone’s rent for a few months? Suffice to say, I don’t recommend counting on a bail-out to take care of all of your rent bills.
Be well, take care of yourself first, take care of your landlord later.
Edit – A commenter, Roland, brings up a good point: Is it better to negotiate with your landlord now? The answer depends on your landlord. If your apartment is owned by an individual or small group that you know and think would be willing to listen, that may be a viable strategy. But, larger companies often tend not to negotiate until upper management decides negotiation is in their interest. For example, if you’re current on your credit card and call your lender and say, “Hey, can we settle this account for 50 cents on the dollar?” they will assuredly tell you no, but if you do the same after 6 months of non-payment, you may get a different answer.
The above is not legal advice, which can only be given by an attorney who reviews your specific situation.
Michele Leuthauser was traveling from Las Vegas-McCarran International Airport last June wearing yoga pants that should have made it quite easy to determine that she was concealing nothing on the lower half of her body. But, because the TSA uses body scanners with a false positive rate somewhere in the range of 20-40% (some studies higher), Michele was flagged for additional screening: a pat-down of her “groin area.”
Unfortunately, a yet-to-be-identified TSA screener used this as an opportunity to violate Michele. While typically body scanner alarms are resolved with a quick and limited (yet still often invasive) pat-down right next to the machine, the screener directed Michele to a “private room.” Screening in a private room is supposed to be an option offered to passengers who feel more comfortable (an option I advise all travelers against taking at all costs), but for Michele it was mandatory.
When doing pat-downs, the TSA has little mats with footprints painted on to indicate to the passenger how to stand. But, the screener told Michele to spread her legs far wider than the mat — an order that seems common for TSA screeners about to inflict abuse. She then proceeded to rub her hand on Michele’s vulva, pressing firmly enough to penetrate her labia with her finger through her leggings, and then continuing to rub her vulva until Michele, in shock, finally recoiled and told the screener to stop.
On Friday, I filed suit on behalf of Michele after TSA supervisors, local police, and TSA’s Office of the Chief Counsel refused to do anything about this incident. While TSA policies (and the Constitution) obviously prohibit checkpoint body cavity searches, no one seems to care when normal screening turns to blatant sexual assault. I look forward to giving TSA incentive to care in the U.S. District Court for the District of Nevada.
I’ve complained several times of “creative” (read: absurd) arguments put forth by Assistant U.S. Attorney Rachael Zintgraff in the DOJ’s Northern District of Oklahoma office in Rhonda Mengert’s case stemming from an illegal TSA strip search. A partial list of Ms. Zintgraff’s next-level arguments have included:
That an illegal strip search in the back room of an airport is comparable to using a locker room (page 11)
That women in locker rooms regularly “observe” each other’s feminine hygiene products (page 11)
That an illegal strip search in the back room of an airport is not extreme or outrageous (requirements for an emotional distress claim) (page 15)
That an illegal strip search in the back room of an airport is comparable to a preschool nurse examining a child (page 18)
That classic PTSD symptoms, including uncontrollable shaking, nausea, sweating, tightness in throat, headache, and hot flashes whenever thinking about the incident are insufficient allegations of “severe” emotional distress (page 33)
That instead of a lawsuit, Ms. Mengert could have simply filed a complaint with the TSA or told a police officer, and that would be a sufficient remedy for being unlawfully strip searched in the back room of an airport (page 19)
That there are national security implications involved in this case (page 23)
That holding TSA screeners liable for illegal strip searches may cause them to hesitate when a real terrorist tries to get through the checkpoint (page 26)
That Ms. Mengert can’t prevail on her claim under one law (Federal Tort Claims Act), but since that law provides a way for her to seek redress, even though it doesn’t, the court shouldn’t allow another type of claim (Bivens remedies) because the first law adequately protects her (if this makes your brain hurt, you’re not alone) (page 17, fn. 8)
That ordering someone to drop their pants and panties in order to get a good look is not actually a strip search (page 10, fn. 9)
The bar for what is “frivolous” is high: it must not be merely wrong, it must be such that no reasonable attorney would think it reasonable to argue otherwise. So, just maybe, it’s not frivolous to argue that a strip search is like a locker room, because perhaps consent is not something you value.
But in this entire pile of nonsense, there is one more argument in particular stood out as legally frivolous: that Mrs. Mengert should have brought her challenge in a different court (page 15). Let me explain.
Congress wrote a law that basically says that written decisions of the TSA are to be directly appealed in the Court of Appeals. These so-called “orders” of the TSA cannot be challenged in the normal trial court. To try to invoke this law, the TSA has argued that many TSA orders are secret and therefore there is no way for us to know whether the strip search was conducted pursuant to an order or not, and therefore the case belongs in the Court of Appeals.
Notice how this argument is not that “TSA has ordered strip searches.” It’s basically “maybe they have, so the plaintiff should have to try the Court of Appeals first.” At the outset, that is a blatant attempt at delaying litigation. If the defense is that they were following orders, they could simply say so, and no one knows better than me that they are happy to do so when it helps their case: my first case against the TSA, back in 2010, was dismissed on a successful argument that I was challenging a written order of the TSA and therefore was in the wrong court. The case law for this concept literally bears my name in the caption.
Beyond that, we know that TSA doesn’t “order” strip searches because their spokespersons say so. Because you can ask any screener at the checkpoint, and most of them are happy to tell you that TSA doesn’t do that. Because they publish the same in their blog. And because millions of women pass through TSA with feminine hygiene products each year, yet less than a handful have ever reported being strip searched for the same. TSA policy is clear that strip searches by checkpoint screeners are prohibited.
An argument that maybe a secret order required the defendants to do something, when Ms. Zintgraff knows damn well that no such order exists, is legally frivolous. No reasonable attorney in her position would have made such an argument, and that is why, after 21 days’ notice and demand to retract without reply, I filed my first motion for sanctions since becoming an attorney.
So why does once a year or so a new news story gets published with new allegations of checkpoint strip searches?
Perhaps one reason is that the TSA doesn’t think forcing you to expose your genitals counts as a strip search. From their latest filing in the Mengert case:
Here, the TSA attempts to borrow from a case in which police officers, sued for conducting an illegal strip search, argued that they really only conducted a “clothing search” that, incidentally, resulted in the person being searched ending up naked in front of a police officer. Their attempt to try the same justification — essentially that the TSA screeners who violated Mrs. Mengert were not interested in looking at her body; rather, she was just incidentally exposed as they searched her clothes — is a bit curious since the case they cited told the police to pound sand:
“Whether or not the officers set out deliberately to inspect a prisoner’s naked body is not the question; it is, rather, whether the officers did, in fact, perform such a search.”
Wood v. Hancock County Sheriff’s Dept., 354 F.3d 57, 64 (1st Cir. 2003), remanding the case back to the lower court for a jury trial.
I don’t imagine this will go well for them.
If you’re interested in qualified immunity, Bivens liability, and the lengths your government will go to defend blatant misconduct of their employees, the entire motion…
After 5 years, my challenge to whether the TSA can disallow “opting out” of the body scanners has concluded with the U.S. Supreme Court refusing to hear the case. The details of the case and the issue presented to the Supreme Court are well covered in a post earlier this year, so I won’t repeat them here.
The Supreme Court is busy, but it’s a bit disappointing that they didn’t take up this case, which raises a serious question as to when the citizens have standing to challenge infrequent or random searches — a question that the Eleventh Circuit approaches differently than any other Court of Appeals in the country.
The door is still open to anyone who wants to sue after being denied an opt-out request, but challenges exist there as well, and frankly, it is sad that the citizens have to wait to actually be violated by their government before they can ask the government to be enjoined from abuse. That said, if you’ve recently asked to opt out of the body scanners in favor of a pat-down, but TSA has refused, please be in touch and I would gladly consider your case.