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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

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.

TSA Mask Mandate Ends After Court Strikes Down CDC’S Mask Mandate

I spent my weekend writing an appellate petition regarding TSA’s mask mandate, and of course as soon as I finished proofreading and sending it to the printer on Monday, I see the alert that a judge for the U.S. District Court for the Middle District of Florida vacated the CDC’s rule — which supposedly TSA was just “supporting” — as beyond its authority and improper under the Administrative Procedures Act. A few hours later, TSA announced it would rescind its mask mandate.

My personal frustration about the wasted weekend notwithstanding, I naturally welcome the news. CDC — an actual public health agency — was stretching its mandate, but TSA was absolutely sprinting past its mandate by cramming a public health order under the umbrella of “transportation security.” I don’t have an opinion to share on whether yesterday’s order would survive appellate review, as the 59 page document certainly requires more than a moment to parse, but it appears the government will not be appealing and is ready to let the mask mandate go. So, although the D.C. Circuit certainly did not agree in my case, it appears to me (at least if nothing changes) that the issue may now be moot before my deadline to ask the Supreme Court to review that decision next week, which means I am left with nothing to ask the Supreme Court to review.

I’ll be representing individuals who have been fined (or worse) under the mask mandate and look forward to pressing the important issue of agency boundaries in those cases — and will update you all as much as I can. And, I’ll be enjoying a mask-free flight tomorrow!

PSA: Don’t Take The Bar Exam Without Typing Skills

I get a lot of e-mails from law students prepping for, or wondering why they failed, the bar exam. Bar prep isn’t exactly a service I advertise, but I’m always happy to see law students thrive, so if you ask nicely I’ll spend a few minutes looking at your essays and score report and give you some thoughts.

One issue that many students might not be aware of is that a fairly solid ability to type is required if you want to pass the bar exam. You have about 40 minutes to type each essay response. The average “selected answer” published by the California bar (sample high-scoring essay response) is 1,600 – 2,000 words. That means if you are able to type non-stop at fewer than 40 words per minute, you are unable to produce a high-scoring response even if you are a bad-ass with legal rules and essay composition skills.

Take a typing test. If you’re scoring anything less than 75 WPM, you could use some practice. If you’re scoring less than 50 WPM, you would be foolish to attempt the bar exam without practice. There are tons of free or low-cost typing tutor apps that you can find with your favorite search engine, and 20 minutes a day for a few months will absolutely boost your score. Another reality check is if you’re practicing by taking previous exam questions in a timed setting and your responses are under 1,200 words, your essays aren’t long enough and if you feel like your fingers were moving the whole time, your typing may be the problem. (And, if you’re not taking previous exam questions in a timed setting in preparation for the Bar, just send me your $800 exam fee and I’ll tell you you’ve failed right away so you don’t even have to sit for the exam!)

Whether you’re just starting law school or you’re a practicing attorney, this is a skill you need ASAP.

United Airlines Lawsuit Over Flight 328 Incident Resolves

Just under a year ago, 231 passengers on board United Flight 328 encountered an “uncontained engine failure” — a piece of an engine fan blade broke off at high-speed, damaging the right engine, causing pieces of it to fall off, and the remainder of it to ignite on fire which, for whatever reason, could not be immediately put out in-air.

On March 7th, I filed a class action lawsuit on behalf of the passengers of this flight. The details of the incident and alleged injuries were previously discussed on this blog. A total of 14 named plaintiffs joined the lawsuit, and between August 20th, 2021 and January 24th, 2022, they have all filed notices of voluntary dismissal.

A formal motion for certification of the class had not yet been brought, and the case itself was terminated this week as no named plaintiffs remained. Any passengers who have not resolved their claims, filed their own suit, or retained other counsel are encouraged to quickly reach out to my firm, as statutes of limitations are running.

Case Closed


[ATTORNEY ADVERTISING – Corbett Rights, P.C., Jonathan Corbett, Esq., 958 N. Western Ave., Suite 765, Hollywood, CA 90029. Licensed in CA, admitted to D. Colo.]

D.C. Circuit Asked to Re-Hear TSA Mask Mandate Challenge After Supreme Court Rejects OSHA’s Mandate

In December, a 3-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit emphatically tossed my challenge to whether TSA has the authority to create public health regulations. Two of the judges ruled that TSA has authority over both “security and safety” while the third judge would have held that I had no standing to even make the challenge.

I intended to chalk up my loses and leave the case at rest, but on January 13th, 2022, with 11 days left for me to ask the D.C. Circuit to change their minds, the U.S. Supreme Court decided NFIB v. OSHA, 595 U.S. __ (2022) (Case No. 21A244), in which they were asked to consider a challenge to the Occupational Safety and Health Administration’s rule requiring all employers across the country who have at least 100 employees to force their employees to either vaccinate or wear a mask and test weekly. The Supreme Court enjoined OSHA from enforcing the rule:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

I had argued in my case that the Transportation Security Administration was limited to security matters (terrorists, criminals, and the like) and that regulating safety matters (accidents, natural disasters) is outside of their powers. But the OSHA case made clear that even if an agency has authority over safety, they still do not have authority over matters of general public health. That is, OSHA has authority over occupational safety, and so it follows that TSA, if it has any authority over safety at all, has authority over transportation safety. In other words, just as TSA obviously doesn’t control whether a sidewalk at the airport is slippery, or whether the terminal is painted with lead paint, or whether exposure to UV rays at 35,000 feet should be limited to reduce cancer risks, they do not get to address coronavirus absent a special risk to transportation.

Could they create a regulation that requires masks at security checkpoints due to the special transportation-related risk created by the close proximity required to search travelers? Could be. Could they possibly do a study and conclude that the density of travelers on airplanes creates a special transportation-related risk, and thus require masks on airplanes? Maybe (although the advanced air filtration systems on passenger planes may mitigate that risk). But can they possibly continue to defend a regulation requiring me to wear a mask while shopping at the duty free or eating at the food court? It seems to me that the OSHA case forecloses that possibility.

My petition for re-hearing or re-hearing en banc was filed late Monday night. It is likely that the court will respond in a few weeks.

Corbett v. TSA – Petition for Re-Hearing (.pdf)

PS – Court clerks apparently read this blog last month and bunched their panties due to the name of the blog. I do detail the rationale behind the “Professional Troublemaker” name. It would be nice if the law were decided not based on whether one is pro- or anti-mask/vax/mandate/whatever or by trying to judge the attorney who filed a petition and instead decided strictly based on what the law says. Trying to stretch the powers of the agency created to prevent the next 9/11 to cover public health matters is foolish and entirely unnecessary: even if you like a mask mandate, let the agencies which actually do have authority make it.

D.C. Circuit: TSA Charged with “Safety and Security,” Not Just Security; Mask Mandate Petition Denied

There is no dispute that the Transportation Security Administration was created by Congress after the 9/11 attacks in order to prevent future acts of air terrorism. The Aviation & Transportation Security Act of 2002 (“ATSA”), TSA’s enabling statute, makes clear that it was created to address “security in all modes of transportation.” 49 U.S.C. § 114(d). Virtually every section of ATSA discusses issues such as passenger screening, cargo screening, sterile areas, and the like.

TSA is not a public health agency, nor do they have general police powers, so when they issued a mask mandate for basically the entirety of the nation’s transportation system, I sued. My challenge has nothing to do with whether masks work or what coronavirus policy should be: it solely raised the issue of whether TSA should be allowed to create those policies.

Today, unfortunately the U.S. Court of Appeals for the D.C. Circuit disagreed. In a 2-1 decision (linked below), the court held that TSA was created to deal with “safety and security” and denied my petition. The court held that “Corbett plainly has standing to pursue his claims in this case,” a point which the government disputed in an argument that “borders on frivolous,” which was a small victory for anyone challenging TSA policies in the future. But the court then continued to conclude that Congress used “capacious terms” in ATSA in order to give TSA “broad authority.” Respectfully, I disagree that when Congress says “security” they really meant “safety and security,” I am disappointed with the ruling, and I will consider my options from here.

The dissenting opinion, penned by U.S. Circuit Judge Karen Henderson unfortunately “dissented” to personally attack me for a “waste of judicial resources” because it found the gripes within my petition to amount to mere “trifles” and that my alleged injury was insufficient to demonstrate standing. With all due respect, two federal judges just agreed that I demonstrated standing, so clearly raising that issue was not an indefensible claim. I consoled myself after reading her harsh words with the knowledge that Judge Henderson also wrote that illegal aliens are not “persons” under the Fifth Amendment in 2017 (seriously), that the Second Amendment doesn’t apply in D.C. (also seriously), and recently sided with controversial Trump appointee Neomi Rao to force a lower court to dismiss the case against retired U.S. General Michael Flynn, who lied to investigators about being an unregistered agent of a foreign country, in a ruling that was aptly described as “astonishingly bad.”

Coronavirus litigation is hard. It is few courts that have had the courage to draw a line in the sand — anywhere in the sand — and attorneys who fight that fight certainly do not deserve to be talked down to by federal judges. We can all disagree on exactly how coronavirus policy should be shaped and by whom, and indeed we are doing a disservice if we are not testing these society-altering policies in the courtroom. I’ll try not to be too discouraged, and I hope my readers will not be either.

Corbett v. TSA – Petition Denied (.pdf)

TSA & DEA Settle Civil Forfeiture Abuse Lawsuit After Stealing $70K from Film Maker at Airport

Etienne Complaint

“Civil asset forfeiture” is a legal framework that allows the government to take money or other assets that it has probable cause to believe are connected to a crime. The problem, of course, is that it’s up to cops on the ground to say whether they have probable cause or not, and then it’s on you to fight to get your property back — precisely backwards from what it should be.

Unlike criminal forfeitures, civil forfeitures require no one to be convicted — or even arrested for — a crime. Surely there are some instances where this allows the government to legitimately take property from drug dealers or others where the property is obviously criminal proceeds but they can’t nail down an individual to send to jail. But the reality is that this enables law enforcement laziness, where field agents act on a hunch, without serious regard for whether the money is actually criminally-connected or not, often times earning their agency a commission, and massively screwing over innocent people left and right. And sometimes, those involved act in bad faith.

Keddins Etienne, who asked me to share his story, was traveling through JFK airport in New York just before the pandemic erupted with $70,000 cash. He was traveling on domestically, and there is no limit to how much cash you may travel with or requirement to declare cash in any amount unless you’re leaving the country. Etienne works as a film maker, an industry that for smaller productions often pays staff in cash, and the funds were needed for an upcoming production. There was literally nothing to see here.

But, TSA spotted the cash while x-raying his bags and reported their findings to the DEA. DEA agent Antonio LoGrande stopped Etienne, questioned him for several minutes, and — apparently unsatisfied — LoGrande walked away with his cash.

Now, carrying cash, in any amount, is not probable cause that the cash is connected to drugs or some other criminality. Nor is doing so at an airport, nor is not being able (or willing) to justify yourself to some DEA thug. But, Etienne left the airport that day with $70,000 less than he came in with, in exchange for a slip that basically says, “We jacked your cash, if you want to see it back, here’s how you can fight for it.” Except they use important-sounding but actually quite silly language like, “To request a pardon of the property…”

Love Letter from the DEA
Love Letter from the DEA

One shouldn’t have to request a “pardon” for their own innocent funds, but regardless, Etienne did just that. He retained me as his attorney, and I submitted the claim forms to seek return of the cash. Then, something even more curious happened: an attorney for the government, Assistant U.S. Attorney Claire Kedeshian, contacted me and attempted to get me to “settle” the matter by accepting only part of the cash back, as if this were some kind of breach of contract or negligence claim that the parties should negotiate. Ms. Kedeshian advised me by phone that failing to settle might result in additional liability — even criminal liability — for my client, and that they had evidence that he was involved in “structuring” (the crime of depositing or withdrawing large amounts of cash from a bank a small amount at a time in order to avoid federal reporting requirements that trigger with individual transactions of $10,000+).

“Just give us a few thousand and we’ll let you go…”

But, a review of my client’s bank statements showed nothing of the sort: they entirely made up that accusation in an attempt to strong-arm him into settling. I advised them that return of his cash was non-negotiable — return every dollar or see you in court — and that their methods were disgusting. And so we waited for months until the deadline set by law for them to either return the money or start court proceedings arrived, and about 2 weeks before the deadline, they sent us a note saying they would return the money, with no further explanation. Total time from seizure to recovery of funds was about 8 months.

It seemed to me that the wrong done to Etienne was not fully addressed by simply returning his money. So we filed Etienne v. U.S., Case No. 21-CV-613 in the U.S. District Court for the Eastern District of New York, alleging unlawful search and seizure, as well as abuse of process (New York’s civil-context version of malicious prosecution). The case was assigned to a judge who requires a pre-motion conference before filing motions, and the government asked for such a conference on a motion to dismiss. A DOJ attorney got up before the judge and explained the basis for its motion: that carrying that amount of cash through an airport constituted at least “arguable” probable cause sufficient to grant qualified immunity to the DEA agent. The judge made clear that he was not impressed and ordered the parties to mediation. In August, an agreement was reached, and the government paid my client an additional $15,000 for his troubles. The money was finally received last month.

Things ended well for my client, but the taxpayer is out $15K plus probably tens of thousands of salary dollars to the DEA agent and several attorneys who wasted their time trying to backwards-rationalize the seizure of an innocent man’s money. And I wonder how many innocent people just don’t have the will to fight and lose some or all of their money? Those who study the matter suggest that $3B per year is seized through civil forfeiture. So perhaps the government just thinks of the $15K they paid my client as a cost of doing business. It would be nice to see the Department of Justice return to acting in the interest of justice rather than running rackets like this.

Etienne v. U.S. – Complaint (.pdf)

NYC: Don’t Ask Our Vaccine Mandate Inspectors to Show Their Vax Cards!

New York’s vaccine mandate program, dubbed “Key to NYC” and requiring all who enter bars, restaurants, gyms, theaters, and the like to show proof of at least one dose of a vaccine, has been a shit-show from its very inception. We can start with its questionable necessity, given that 83% of adults in the state already have at least one dose. We can look at the disparate racial impact, given that younger black residents are far less likely to be vaccinated, leading to a new means of discrimination and protests by BLM. We can realize that its efficacy is questionable given that any moron can print a vaccine card (so long as one is not illiterate) and there is absolutely no way for a business to verify its authenticity. And perhaps we can even think about the small business owners, already closed for many months and handicapped thereafter, who shouldn’t have to take city-provided conflict resolution courses to deal with people who get upset about having to show their medical records to have a bite to eat, as well as the hit to their much needed revenue, and the fact that it is simply not fair to place the burden of enforcing a public health mandate upon them.

If all of that doesn’t demonstrate that this policy was created in an ivory tower, I received a tip from a New York CIty venue who was inspected by the city for vaccine mandate compliance yesterday and had a simple request of the inspectors: show your vaccination card before entering, like any other person who enters. The inspectors had a simple reply: no. The venue was written up for “denying access” and presumably will face some kind of fine by mail.

These were just inspectors on a power trip, right? I contacted the Mayor’s “Office of Nightlife” chief Ariel Palitz, who told me:

“Inspectors are not required to be vaxxed because their presence is for a ‘quick and limited purpose.’ Exactly like unvaxxed patrons who are dining outside may go inside to use the bathroom or pick up food with a mask on.”

But as any establishment in NYC with a food service permit knows, city inspections can sometimes take hours, the inspectors are in people’s faces, putting their grubby hands all over things, and wandering into private areas, and is simply not the same risk as one who enters to use the bathroom and then leaves. Beyond that, the city seems oblivious to how it looks when they say, “All you people need to be vaccinated to come in… but we are special and will come and go as we please!”

Knock it off, Mayor de Blasio. The people are tired of rules for them, but not for you.

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