U.S. Court of Appeals Clears Path to Lawsuits Against Abusive TSA Screeners

Osmon DecisionIn 2012, a TSA screener refused to allow me to leave a checkpoint after I told him I wouldn’t consent to having him touch my genitals. He told me I would be forcibly searched, called the police, and spent 45 minutes tearing apart my baggage looking for drugs. TSA screeners, of course, have no authority to conduct a detention, a forcible search, or a search for drugs.

I sued TSA that year — long before I had even started law school — and the U.S. Court of Appeals for the Eleventh Circuit held against me, without allowing oral arguments as is traditional, because, they said, the law under which I sued only applied to “investigative or law enforcement officers” and TSA screeners are not “officers.” This despite their badge reading “U.S. Officer,” their job title being “Transportation Security Officer,” and obviously meeting the statutory definition, which was one “empowered by law to execute searches, to seize evidence, or to make arrests.”

Fast forward a decade, a law degree, and a law license later, and two U.S. Courts of Appeals have held the opposite — and today I’m proud to announce that the Fourth Circuit joins them in a unanimous opinion in Osmon v. United States, 22-2045, a case I argued on behalf of a woman who was sexually assaulted on video, right at a checkpoint, while the TSA screener commented on how short her shorts were:

The government disagrees, insisting the relevant language covers only searches that are part of “criminal law enforcement.” U.S. Br. 21 (quotation marks omitted). Per the government, the law enforcement proviso permits suits for battery only when the officer could perform “a criminal, investigatory search” rather than “an administrative search,” which takes the form of an “inspection” or “screening.” U.S. Br. 26.

The problem with the government’s argument is that it reprises a tactic the Supreme Court has already rejected: “read[ing] into the text additional limitations designed to narrow the scope of the law enforcement proviso.” Millbrook, 569 U.S. at 55. The word “criminal” appears nowhere in the law enforcement proviso—let alone as a modifier of “searches.” See 28 U.S.C. § 2680(h). Here, as elsewhere, we “may not narrow a provision’s reach by inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020).

Having joined the Third Circuit in Pellegrino v. United States, 15-3047 (3rd Cir. 2019, en banc) and Iverson v. United States, (8th Cir. 2020), there are now 15 states where TSA may no longer use the “we’re not officers” defense. Because the Eleventh Circuit did not publish their opinion in my 2012 case, it is non-precedential and lawsuits may proceed in all 35 other states, where TSA will have an uphill battle convincing courts to apply different logic.

Suffice to say, I am ecstatic to open the courthouse doors for all injured by abusive feds, I am thrilled to bring my client closer to getting some justice for this brazen misconduct, and I feel personally vindicated after having been swept out the courthouse door a decade ago by judges who, frankly, did not want to deal with a pro se litigant challenging the government’s status quo. My firm continues to handle cases of checkpoint abuse, and I encourage anyone violated by TSA at the checkpoint to get in touch.

Osmon v. TSA – Reversed & Remanded (.pdf)

Supreme Court: Electronic Filing is Mandatory, but Does Not Count as “Filing”

Since even before I was licensed to practice law, I’ve chronicled the absurdity that is filing a case with the U.S. Supreme Court. From requiring those dropping off papers to place their documents in garbage bags, to requiring 40 copies of all documents in specialized and expensive “booklet format,” to rejecting a filing for having an “insufficiently thick cover,” instead of making justice as accessible to all as possible, this court has made practice before it the ultimate hoop-jumping experience.

All of the issues above are correctable; that is, if you do it wrong, you just need to fix it. But at the end of last year, the Supreme Court caught me with one that is not only uncorrectable, but not specified in their rules, and I post this both as a plea for the high court to get their shit together as well as to serve as a warning to other attorneys: the Supreme Court does not count “electronic filing” as “filing” for the purpose of meeting a deadline for a petition for certiorari.

Sure, electronic filing is mandatory. And sure, the Web site to submit your electronic filing calls itself “Electronic Filing System” and the address of the Web site is file.supremecourt.gov. But please be forewarned: what you do at this site does not count as a “filing.”

Of course, in order to submit your documents, you push a button labeled “New Filing.” And of course, when you complete the process, it tells you, “Your electronic filing was submitted on [date] [time].” But do not be confused: you have not filed anything.

SCOTUS E-File Portal
If you think this tool might file a document, you are mistaken, comrade.

You may also have thoroughly read each and every one of the court’s rules and guidelines and found nothing to indicate that even though you have successfully transmitted a document to the court, the court will not treat it as filed. This is true even if, as an experienced litigator, you know that literally every other federal court in this great nation considers a document as filed for deadline purposes at the earlier of when the court receives either the paper or electronic version, and that failure to file paper copies when required is a minor, correctable breach of rules rather than a jurisdictional time bar-creating nightmare. But you clearly do not understand that the Supreme Court is special, so not only must you disregard your experience with other federal courts, you must make peace with the fact that some rules are just not meant to be written.

Unfortunately, an explainer-guide like the above did not exist before this post, so when I e-filed a petition with the Supreme Court on the night of the filing deadline and saved a filing confirmation, I took comfort in the court’s Electronic Filing Guidelines, which state that the electronic and paper copies must be filed “at or near the same time.” So, “the morning after the electronic filing” seemed to me to be “near the same time” for the purpose of filing paper copies, but the Clerk of the Supreme Court rejected my filing for missing a jurisdictional time bar because, I was told for the first time, regardless of whether or when you electronically file, the only date that counts for meeting a deadline is the date the paper copies are sent.

Of course, there’s no law actually requiring the court to consider this a jurisdictional miss, since Congress has not precluded the court from “counting” the electronically filed version, but if the Supreme Court can disregard you, it, quite simply, will. My motion to file the petition “out-of-time” was denied yesterday without comment.

It’s not just me. Attorneys are regularly caught by this absurd rule, as evidenced by motions on the court’s docket to hear their petitions “out-of-time.” I was able to find at least 3 attorneys who had this problem in 2022 alone, and probably many more: since the Supreme Court (as best I can find) has never granted such a motion, I would imagine most attorneys don’t bother to file one due to the embarrassment of publicly outing themselves as having missed a deadline. I’m assuming this is also why a post like this doesn’t yet exist. It is never the highlight of an attorney’s day to tell their client — let alone any member of the public who cares to read the docket, or their blog — that a case is over because a deadline was missed, and it is not the highlight of mine. But the Supreme Court’s refusal to even put a clarification in their own rules, or a tiny note on their e-file portal, despite this regular occurrence, is a failure for which the legal community deserves warning and SCOTUS deserves shaming.

I joined this profession to help people get much needed justice, and although I wasn’t able to get it for my client this time (an unfortunate reality of civil rights litigation sometimes, even when a case is not snagged by procedural boobytraps), I hope this guide helps at least one more person get justice, and I know it will help more than one attorney avoid pulling their hair out when receiving a nastygram from the clerk after thinking they were in the clear.

Court Denies Preliminary Injunction Against New N.Y. Gun License Requirements

In July, I filed suit against New York’s new social media, references, and training requirements for gun license applicants, created after the U.S. Supreme Court ruled that the state’s policy of allowing gun rights only to those whom the state believed had shown a “good reason” to exercise them. Four months later, the court today orally denied a motion to preliminarily enjoin those requirements. (A written opinion will be forthcoming.)

As to the social media and references requirement, the state argued that these requirements will not apply to those who submitted their applications before the law took effect, as I had done, thus negating my “standing” to sue. That is, the law doesn’t directly affect me (yet), so I can’t challenge it (yet). To be fair, assuming the government is going to process my pending application without giving effect to those requirements, the court got this one right. I am skeptical that they will process my application in this way, but the claims can be re-asserted if and when they “change their mind.”

As to the training requirement, the government needed to demonstrate a historical analog — in other words, a tradition of similar restrictions from the time the Second and Fourteenth Amendments were passed. The government argued that since everyone had to be in the state militia, and the militia had substantial training requirements, there is indeed an analog. The court was persuaded; however, on this issue, I believe the court made a mistake. Militia service and training requirements were not connected with gun ownership. One who was not male, or in the right age range, was not required to serve, but also not precluded from having a gun. Neither was one who simply disobeyed the service requirement. The Supreme Court has been clear that the rights conferred by the Second Amendment are not connected to militia membership, yet here we are with yet another ruling trying to connect them.

I intend to appeal the decision on the training requirement to the U.S. Court of Appeals for the Second Circuit. As almost 8 months has passed since I filed a license application without any indication of processing, I also intend to add a claim of unconstitutional delay to the case. I know that, for many, this ruling is disappointing, but it is a step towards the ultimate resolution, and sets up a scenario where the Second Circuit either upholds a law based on re-connecting the right to militia membership — something that the Supreme Court plainly will not tolerate — or fixes this issue. And, regarding the social media and references requirement, if you or someone you know has applied for a carry license in New York after August 2022 and they would like representation, please be in touch and perhaps we can get these issues back on the board sooner rather than later.

Court Asked for Preliminary Injunction of Social Media Disclosure Requirement for Gun License Applicants

Docket with Motion for Preliminary InjunctionOn July 11th, 2022, I sued Gov. Kathy Hochul over her new law designed to disenfranchise New Yorkers of their right to bear arms in the face of a U.S. Supreme Court ruling that they may not deny that right to the ordinary citizen. This law, S51001, requires gun license applicants to disclose all of their social media accounts, to gather four references, and to complete 18 hours of training. By my estimates, this raises the cost of obtaining a license to over $1,100 and about 35 hours of one’s time, not to mention the cost of missing work to make that happened. The intent is obvious: make it so difficult to get a license that the ordinary citizen, once again, is unable exercise their rights.

My case was assigned U.S. District Judge Lorna G. Schofield and not much has happened, other than the government asking for a lengthy extension of the time they have to respond, but today I got the ball moving by asking Judge Schofield to issue a preliminary injunction against these requirements:

Law-abiding citizens will be forced to relinquish their right to anonymous speech and Internet privacy, while the next mass shooter simply lies on the application and omits any incriminating social media accounts. Diligent investigators, of course, may find incriminating social media anyway, but they could do the same just as well without this law. In other words, the law only serves to punish law-abiding citizens who will be honest on their applications, with no benefit to public safety.

The government’s response will be due in 2 weeks, and the answer to their complaint (with extension) in 3 weeks. I have only some faith that the motion will be granted, but the nice thing about preliminary injunctions is they are immediately appealable. I would imagine the government would appeal if they win, so either way we’ll be in the U.S. Court of Appeals before end of year.

New York Sued for “Blue Law” Against Sunday New Year’s Parties

Summons for Vincent BradleyOnly 50 years ago, there were places in this country where you could not buy non-essential items on Sundays, because it was a crime for shopkeepers to sell them to you.

These laws, called “Sabbath laws” or “blue laws,” existed in the vast majority of states, came in many varieties of Sunday prohibitions, and the traditionally-liberal states in the northeast, such as New York and Massachusetts, were among the last to get rid of theirs in the late 70s. By 1976, the highest court in New York had little trouble concluding that “[t]here is little doubt that these laws are clearly religious in origin…” and striking down the laws in that (and subsequent) challenges. People v. Abrahams, 40 N.Y.2d 277, 281 (N.Y. 1976). The Constitution forbids state establishment of religion, and it is obvious that these laws contravene that “commandment.”

But, laws are struck down one at a time, and for whatever reason, several of New York’s remain unchallenged. One of the remaining ones is this: on New Year’s Day, New York allows its bars to stay open all night long, so long as they are in good standing and submit an application with a small fee. But, if New Year’s Day lands on a Sunday, the law prohibits licenses from being issued by its State Liquor Authority.

Noticing that January 1st, 2023 lands on a Sunday, Brooklyn event venue and licensed bar Eris has filed suit last night, with me as counsel, challenging this law. It may seem trivial, but even small violations of constitutional rights should be remedied, and in fact, this law costs bars and restaurants tens of millions of dollars (not to mention millions of dollars in lost tax revenue) each New Year’s Day — so it is not all that trivial and frankly I am shocked that the industry has not challenged this law yet.

The case is Eris Evolution, LLC v. Vincent Bradley (the current Chairman of the New York State Liquor Authority) and was assigned case number 1:22-CV-4616 in the United States District Court for the Eastern District of New York. I am hopeful that New York will agree to end this practice rather than fight to keep the Lord’s Day enshrined in state law.

Court of Appeals: TSA May Force Travelers to Aggravate Medical Conditions During Search

I fight civil rights cases, which necessitates asking the government (courts) to tell the government (executive) that they can’t do something. It’s always an uphill battle, and not every case gets justice for those who encounter government abuse. But this decision left me equal parts depressed and angry.

Rohan Ramsingh is a disabled veteran. In addition to physical injuries incurred during his service to our country, he has PTSD that would be triggered by certain parts of TSA’s pat down procedure. His PTSD is documented and treated by the VA.

When he went through a TSA checkpoint just before the pandemic and TSA asked him to undergo a pat-down, he respectfully advised them of his medical limitations. Instead of finding an alternate method of screening (as is frequently done for casts or otherwise medically-inaccessible areas of the body) or simply saying, “We can’t clear you today, sorry,” they called police to try to force him to submit, and when police declined to play that role, they ejected him from the checkpoint and sent him a fine for $2,050.

I represented Mr. Ramsingh in “TSA court,” wherein the agency acts as judge, jury, and executioner, expecting success would be unlikely at that level, which produced gems such as this one:

“TSA did not dispute Respondent’s claims to STOSs Pagan and McClelland that he suffers from a condition preventing him from lifting both arms and PTSD, and it does not dispute Respondent’s VA medical documentation, in Exhibit A. … However, as discussed in Ruskai, supra, an individual’s bona fide medical condition does not invalidate the requirement to complete screening.”

In other words, TSA can ask you to do something you medically cannot or should not do, and you must comply or face a fine. TSA court was “nice enough” to reduce that fine to $680.

“As expected, no problem,” I thought, as I prepared the petition for the U.S. Court of Appeals for the D.C. Circuit to review the case, fully expecting them to set the TSA straight that no, they cannot force someone to injure themselves at the checkpoint. Wrong I was. In 22 pages of opinion, all they managed to say regarding whether TSA may force a traveler to obey despite a medical condition is this:

When Ramsingh explained his discomfort with a pat-down, TSA offered to conduct the search in a more private area. While the accommodations provided did not fully meet Ramsingh’s medical needs, the TSA officers made a good-faith effort to respect his particular conditions while also performing their security and public-safety duties.

Triggering a PTSD episode is not “discomfort,” and a “good-faith effort” that fails to accommodate a disability should not result in the person with the disability being fined. It also follows that physical injuries will be similarly treated. You’ve got a wound that’s sensitive to the touch? You better let TSA touch it or face a fine!

I am outraged by the decision of the Court of Appeals, and we will be continuing this fight. If any disabilities or veteran’s rights groups, or mental health advocacy groups, would be wiling to assist by helping to explain to the court the seriousness of mental health episodes, please be in touch.

Ramsingh v. TSA – Opinion (.pdf)

Corbett Files Petition for U.S. Supreme Court to Consider TSA Mask Mandate

Petition for CertiorariOn April 20th, 2022, TSA stopped enforcement of its travel mask mandate after a federal district court decided the CDC’s similar mandate was unlawfully issued. But, TSA has never publicly, formally rescinded its mandate, and so it could be immediately reinstated whenever the next strain or virus crosses some arbitrary threshold. I asked attorneys for TSA to indicate whether rescission was forthcoming, and they refused to answer (which, to me, is a pretty clear answer).

So, I’ve asked the U.S. Supreme Court to review the decision of the U.S. Court of Appeals for the D.C. Circuit allowing TSA authority to regulate anything that affects the “operational viability” of the transportation system. TSA’s mandate from Congress is security, not “operational viability,” a term which to me would include basically anything: the price of jet fuel, the hours pilots are allowed to work, the routes which airlines are allowed to fly… what doesn’t affect “operational viability?”

The Supreme Court (at least of recent) has been clear that agencies may not deviate from the normal boundaries of their authority based on creative interpretation of their enabling statutes. In the last year, OSHA was prevented from issuing vaccination mandates because corona is not an “occupational” hazard, the CDC was not allowed to maintain an eviction moratorium because housing is far from disease control, and the EPA was prevented from forcing power plants to switch from coal because the law gave them powers to set standards for coal, not eliminate it. Regardless of whether you agree with these decisions, and regardless of whether you agree that a mask mandate is a “good idea,” it clearly follows that TSA should be prevented from issuing mandates on communicable diseases when their mandate was to stop terrorism.

My case was assigned number 22-33, and the high court will be able to hear it, refuse it, ask the government to weigh in, or immediately send it back to the D.C. Circuit for further consideration. This was my first petition for certiorari as an attorney after having been admitted to the court’s Bar last month, and shockingly only the tenth time anyone has ever asked the court to hear a TSA-related case (3 of the other 9 were also mine over the last decade). Interestingly, filing is actually made more difficult when you’re an attorney: in addition to still needing to send in 40 paper copies in funny booklet format and pay by old-school check, you also need to submit the documents electronically through a buggy and, frankly, insecure-seeming custom platform.

Corbett v. TSA – Docket | Petition (.pdf)

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N.Y. Gov. Hochul Sued Over Requirement to Hand Over Social Media Accounts to Apply for Gun License

For the last century, New York’s “proper cause” requirement required gun license applicants to demonstrate a greater need than the average citizen in order to carry a gun. When last month, the U.S. Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ____ (2022), explicitly holding that the Constitution provides an individual right to carry firearms outside of the home and that the state may not ban the ordinary, law-abiding citizen from doing so, it overturned that proper cause requirement and made clear that the states cannot seek to disenfranchise its citizens en masse.

In response, New York Gov. Kathy Hochul convened a special session of the legislature to try to keep guns out of the hands of as many New Yorkers as possible, ignoring the Supreme Court’s mandate that the right to bear arms be respected, and among many other new requirements, the legislature passed a rule that requires all applicants to disclose every social media account they have used in the last 3 years.

This morning I filed suit against Gov. Hochul and this new law, explaining it in terms I think she can understand and, in fact, should make clear to anyone, regardless of what position they take on gun control, that this is the worst possible solution:

An applicant who has had an abortion and has used the anonymity of social media to seek comfort is now outed, as is the gay person struggling to come out to their family. An applicant with an “Only Fans” who sells nude pictures of themselves online would now be required to let police officers take a look at their body. The person who uses social media to document police misconduct, too, must de-anonymize themselves, as is the supporter of Black Lives Matter or any other marginalized political group.

In other words, the government has no business in our social media. My lawsuit also challenges a character reference requirement and a training requirement that are both designed not to ensure applicants are “good guys,” but simply to ensure that as few as possible are able to jump through enough hoops to get a license.

The case is Corbett v. Hochul, 22-CV-5867 in the U.S. District Court for the Southern District of New York.

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Is It *Really* Impossible To Get A Gun License in NYC? (Part XIV — Supreme Court Strikes Down Proper Cause)

This is the fourteenth 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), Part XIII (No Help from Second Circuit). 

Total Time Spent So Far: 88 hours
Total Money Spent So Far: $2,744

Before the pandemic, I published 13 parts of a series on what it is like for an ordinary, law-abiding citizen to obtain a permit to carry a gun in New York City, in light of state law that requires one to demonstrate “proper cause” (in other words, a reason you need a gun greater than that of the average citizen) before such a license will issue. We left off with the U.S. Court of Appeals for the Second Circuit declining to reach the merits of my case because, they wrote, that a state court had already adjudicated the matter so they didn’t have to.

I had planned to re-apply and then re-file in federal court without starting in state court, but coronavirus happened and pandemic-related cases ended up dominating my time. In the meantime, however, I looked at how one could qualify for “proper cause.” Regularly carrying around large amounts of money was one way, so I started documenting whenever I had large amounts of cash. Running or working for a security company was another way, so I took and passed New York’s exam required as a prerequisite to starting such a company. I ended up re-filing my application earlier this year, but it appears we’ll never find out if I reached a level that would be sufficiently “proper” in the eyes of the NYPD Licensing Division, as today, the U.S. Supreme Court struck down the proper cause requirement in NYSPRA v. Bruen. The high court held, as was obvious, that you cannot parse the word “bear” in “the right to keep and bear arms” without concluding that the amendment provides for outside-of-home rights.

New York officials are predictably apoplectic. Gov. Kathy Hochul took to Twitter to call the decision “reckless.” Manhattan Borough President Mark Levine took to Twitter to flat-out lie, alleging that the decision struck down the requirement to get a permit. I’ve corrected Mark several times when he has made this statement in the past, and he continues to repeat it, possibly not understanding that if a citizen reasonably relies on that statement and carries a gun without a license, they may be able to use his post in defense of a gun charge. But the fact of the matter is that all of the criminals already have their guns, and law-abiding citizens with carry licenses are among the most crime-free group in the country, so there is no reason to expect an increase in violence.

I was told when I submitted my new app earlier this year that it would take 9 months (!!) to even assign my app to an officer. I will certainly update this series when I hear back.

Supreme Court Decimates Constitutional Rights, Holds Remedies Available Only at Congress’ Pleasure

I thought the Constitution was a document that restrained the government — including Congress — from assuming or wielding powers that don’t follow its rules. That is, I thought that when our founding document said that we had the right to free speech, to be free from unreasonable search and seizure, to bear arms, or any of that stuff, that we have that right whether Congress likes it or not. To me, it seems that anything less reduces the Constitution to the status of an ordinary federal statute that may be amended on the whims of the party presently in power. And, for obvious reasons, this is bad: who wants the party that just got 51% of the vote to be able to decide what speech should be free, what policing is reasonable, etc., etc., without some ironclad boundaries that cannot be modified without an extreme supermajority of demand? Whether you are R or D or neither or whatever, this is bad, because no matter how much you like who may be in power now, it will change like the wind, but our rights… they should not.

A court precedent created 45 years ago in a case called Bivens v. Six Unknown Named Agents supported my feelings on the matter. In Bivens, some federal drug cops conducted a grossly unconstitutional search of a man, who sued saying that if the 4th Amendment has any meaning, the courts will have to create some kind of remedy when the amendment is violated by the government. The U.S. Supreme Court agreed and gave him a money judgment. All was well for 45 years (err, not really, but at least there was some check on abusive federal agents…)

Yesterday, the U.S. Supreme Court decided Egbert v. Boule. Mr. Boule is an innkeeper on the U.S. side of the border with Canada, and Mr. Egbert is a border patrol officer who beat up Boule and then filed a bunch of false reports with various federal agencies accusing Boule of crimes. (Or, at least, that’s Boule’s story and the court assumed it to be true for the purposes of this decision.) Boule sued Egbert for violation of his 1st and 4th Amendment rights under the Bivens precedent. The court did not disagree that Boule’s story, if true, constituted a violation of his rights. Perhaps even more preposterously, the court simply ruled that until Congress passes a law allowing for money judgments against federal officers, it would not be allowing any more money judgments against federal officers for constitutional violations under almost any circumstance. You can still sue federal officers when their conduct amounts to a violation of state tort law, sometimes, so many false arrests, excessive force, and other claims are still available, but for constitutional claims that do not have a corresponding state law tort (e.g., most freedom of speech or religion claims, retaliation claims, unlawful searches without physical contact with your body, etc.), federal officers can now violate your rights with impunity.

“Where there is a right, there is a remedy” is not only common sense (what good is a right if you cannot enforce it?) but has been the law in this country for nearly 200 years. The Supreme Court trashed that today, and without getting unduly political, Trump’s 3 appointees are the reason the court swung that way. I don’t know what branch of “originalism” or corner of The Federalist Society counsels such a disastrous decision, but respect for the Constitution and civil rights is not part of those ethos. Selecting justices for political motives, rather than their qualifications, is a mistake (whether you like the former prez and his politics or not), and now we all pay the price.

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