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 Jonathan Corbett, Civil Rights Attorney

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"NYPD Street Body Scanners "

Federal Judge: Suit to Stop NYPD Street Body Scanners Must Wait

nypdscanOn January 28th of this year, I filed the first and only lawsuit against the NYPD’s testing and planned implementation of “street body scanners” — terahertz imaging devices designed to allow cops to peer under the clothes of unsuspecting passersby on the street for guns. In addition to highlighting New York’s longstanding disrespect for the Second Amendment by assuming that anyone bearing arms must be doing so illegally, this tool plainly ignores the Fourth Amendment’s requirement, made clear in Terry v. Ohio, that searches must have cause. By checking underneath the clothing of the public at random, the NYPD proposes to conduct the most widespread and general search ever demanded (outside of the airport checkpoint, of course).

U.S. District Judge Paul G. Gardephe ruled today, however, that the suit must wait because the immanency and effects of the NYPD’s proposed scanner use are, at this time, uncertain and speculative. This issue touches a gray area where, on the one hand, courts are allowed to protect the people from imminent loss of liberty, they must balance this against the constitutional requirement that only a live controversy may be reviewed.

The facts of this matter are that: 1) the NYPD has paid millions of dollars to fund the development of these devices, 2) the NYPD has procured at least one of these devices, and 3) NYPD Commissioner Kelly has stated his intent to begin use of the devices as soon as possible.

I think reasonable people could disagree as to whether this constitutes a situation where a constitutional injury is imminent, and it is, of course, no surprise that any benefit of the doubt be sent the government’s way by a federal judge. As of now, I don’t plan on appealing this ruling, but instead watching for the first sign that the NYPD has brought these machines into public, at which point I will move to re-open the case. Let the NYPD be on notice: if you start to scan the public, you will be sued on Day 1.

Corbett v. City of New York II – Dismissed (.pdf)

Lawsuit Filed Against NYPD Street Body Scanners

When the TSA brought nude body scanners to the airports, demanding that the citizens allow the government to photograph them naked in order to get on a plane, there were some who said, “If you don’t like it, don’t fly!” That we should give up some of our liberty in order to “keep us safe,” because airports are where all the terrorists are.

When the TSA started paying visits to Amtrak and Greyhound stations, there were some who still didn’t see the problem. After all, “I’ve got nothing to hide!”

Now the NYPD has asked us to accept body scanners on the streets, allowing them to peer under your clothes for “anything dangerous” — guns, bombs, the Constitution — from up to 25 yards away for, you know, our safety. (And someone please think of the children!)

nypdscanI’m pleased to have filed the first lawsuit against the nude body scanners after the TSA deployed them as primary screening in 2010, and I’m pleased to announce that today I filed suit against New York City for its testing and planned (or current?) deployment of terahertz imaging devices to be used on the general public from NYPD vans parked on the streets — a “virtual stop-and-frisk.” My civil complaint, Corbett v. City of New York, 13-CV-602, comes attached with a motion for a preliminary injunction that would prohibit use of the device on random people on their way to school, work, the theater, or the bar.

It is unfortunate that it seems that government at all levels is always in need of a fresh reminder that the citizens for whom it exists demand privacy, and that each technological advance is not a new tool to violate our privacy. However, as often as proves to be necessary, we will give them that reminder.

Corbett v. City of New York II – Complaint with Exhibits
Corbett v. City of New York II – Motion for Preliminary Injunction

NYPD to Implement Long-Range Body Scanners on Streets to Look for Guns — Shall I Sue?

http://www.dailymail.co.uk/news/article-2267217/Forget-pat-downs-NYPD-testing-handheld-X-ray-device-detect-concealed-weapons.html

The TSA argues that its nude body scanners are necessary because of the specific risk of air terrorism. But random police checkpoints have never been allowed to force random searches, and case law on thermal imaging, which is a lot less detailed than terahertz imaging, is clear that it requires a warrant. Beyond that, having a gun in an airport is illegal, but having a gun on the street is constitutionally-protected, so the entire premise of the search is flawed.

I just happen to be about 1 mile from the federal courthouse in Manhattan. What do you guys think — will you be here to support me if I take this one on?

NYPD Finally Ditches Mobile Body Scanner Plans

NYPD T-Ray ScannerLike the TSA, the NYPD enjoys collecting high-tech toys, and announced in 2012 that they too would be joining the body scanner game. In 2013 they published their recent acquisition of a van-mounted body scanner that can penetrate your clothing from across the street to see what you’ve got.  Upon hearing of this, I immediately sued the NYPD, seeking an injunction against their use.  A federal judge ruled that my suit was too early because I couldn’t yet show they were going to use it illegally.

So, I’ve been patiently waiting for the NYPD to go and use one of their vans in public to file a motion to re-open the case.  But, it appears the NYPD got the message: the scanners have been “collecting dust” and the NYPD announced that they have abandoned all plans to ever use it.  Why?

But civil libertarians raised privacy concerns and worried whether other items might be mistaken for a gun, leading to bad arrests.

The NYPD said that after an internal review, it was decided the machine would cause more problems than it was worth.

The Daily News was nice enough to call me for a quote, and I’ll definitely be considering this announcement a victory!

Depression, Loss, & The NYPD

This is a partially off-topic post about something very personal to me, but something I feel compelled to share because there are a couple of things that I think we can make better, and I’d like to raise awareness to those issues.  First, the off-topic back story.

About a month before I published my big TSA video in 2012, I met a woman who inspired me to do a lot of things. We dated for almost a year, remaining inseparable even after the dating concluded, and started a music company together that helps me to fulfill perhaps the only part of me that brings about more passion than fighting government abuse. Andrea was an awesome partner to have, whether we were heading to a protest or weaseling our way backstage at a music festival to network with the VIPs. She always encouraged my advocacy, even acting as my process server for my suit against NYPD’s street body scanners.

We accomplished so much together despite the fact that she suffered from serious depression, which, looking back, was getting worse as time passed. Starting from very young, we’re all taught that there is help for people who are depressed. But sadly, help is often times difficult and expensive, and even when you manage to get it, it doesn’t always work. I learned that a good therapist in New York can charge $250 per hour and often doesn’t accept insurance (making weekly treatments $13,000 annually). I learned that prescribing anti-depressants is a lot like rolling a dice and hoping that the pill you takes makes you better rather than worse. I learned that even if you are hospitalized for your depression at the best psychiatric hospital in New York, there is no treatment — they literally just observe you until you feel better (or pretend to, such that you can leave).

Andrea took her own life last month. She was 38 years old.

If you saw her funeral, her Facebook, or the celebration of her life that we held for her, you would have seen that she was incredibly loved by a number of people that was shockingly large, even to me, knowing her as well as I did. Andrea Playing at Cielo NYC But, when you’re depressed, you don’t see that. I know that I didn’t really understand depression before I me her, so let me try to explain depression as I’ve come to understand it, as someone who doesn’t suffer from it directly: Imagine watching a video of the highlights your life that contains all the good things — friendships, laughter, successes — as well as all of the bad things — loss, guilt, stress. You may have a really good life and all that bad stuff may be just a few moments of the video, but when you are depressed, all of the good parts are cut out of the video. The remainder is the bad parts, and it’s stuck playing in your head in a loop. All you see and hear are those times when you didn’t feel loved, when you made a mistake, when someone was mean to you, and a feeling of being truly alone. Your entire existence, in fact, seems to be one giant mistake, and continuing your life can only burden the world with more of your failure. The videos can’t be shut off, and you can’t even remember a time when they weren’t playing. Someone could be talking to you a foot from your face and you literally wouldn’t be able to see or hear them, because your brain is somewhere else. This is how someone like Robin Williams, a man who was loved by so many for his ability to make them feel good, a man who had the resources to do anything he wanted in his life (including obtaining the best doctors that money could buy), could reach a point of desperation to make it all stop — even at the ultimate price — and this is how one of my best friends spent the last few moments of her life.

During the funeral, there were a few people present who were surprisingly upset considering that they didn’t know Andrea all that well, and each of those people ended up telling me that they, too, suffer from depression, and that it could have just as easily been them in that casket. I think it served as a huge wake-up call to them that it’s time to seek treatment now, even though it is difficult and far from certain. I pointed out to them that Andrea could have called anyone in that room when she needed to talk, but didn’t, because no one wants to “share” their depression.

So, the first of the things that I’m hoping we can make better is to remind you (yes, YOU) that if you feel depressed, feel free to call anyone, because more people understand than you might think, and even more people are willing to listen even if they don’t understand. Now is the time to make sure you have a resource to call when you need it, and if you think you’re being a burden on people by calling them, let me assure you that I would give anything to trade this burden of Andrea’s death that I have right now for the burden of talking her through another one of her dark times. It’s also the time to get therapy or medicine if you need it, which I know is hard because finding a therapist you can trust and afford isn’t easy, and taking medicine is scary. But, you probably know if you’re at the point where it’s dangerous for you to continue without assistance, and if you’re there, now’s the time. Two great resource for finding both therapists and psychiatrists are Psychology Today and Zocdoc, both of which let you search by insurance (if you have it) and allow patients to rate their doctors. If you still need help, e-mail me and I will help you personally: jon at professional-troublemaker.com.

The second thing I want to make better is actually relevant to this blog. Andrea lived in Manhattan, and when you report that your girlfriend killed herself, emergency services comes and makes sure you’re ok, tries to comfort you, etc. No, just kidding, of course that’s not what happens… the NYPD comes and holds you as a suspect in her death. Imagine the worst possible moment of your life — losing your closest friend under the worst of circumstances — and then add to that some cops forcing you to go to the precinct and holding you for hours, leaving you in a shitty back room to think about what just happened all by yourself, with no one to talk to. Depriving someone of a shoulder to cry on in such a time has to be one of the most cruel and compassionless acts possible during the worst personal tragedy I’ve yet to encounter. In a city where someone takes their own life every 16 hours, you’d think they’d have worked out a more sensitive way to deal with things.

I’ll be researching further, but my preliminary conclusion is that the police may have had some limited right to hold me briefly under the guise of an “investigative detention” (assuming for a moment that merely reporting a death gives rise to “reasonable suspicion” that you may have caused the death) but case law seems to indicate to me that 1) the duration of the hold, and 2) the forced change of location, violated my rights. Should my further research confirm, I’ll be filing my newest lawsuit within a month or so, as no one else should have to go through what I did and have their tragedy compounded by the police.

Some “Light Reading” from the TSA, Some Denied Reading from the NYPD

Corbett v. TSA Administrative RecordMy fight against the TSA’s nude body scanners is approaching the deadline for briefs (in the Court of Appeals, the main briefs are, essentially, the entirety of your case). Pictured here is the “administrative record” as filed by the TSA. Some of it is public record (and will be posted here in full when I have a chance to scan it), other parts are claimed to be secret for various reasons (the release of which will be fought for in court at the appropriate time), and some parts are redacted (as if anything the TSA does would actually dissuade a terrorist). It totals about 1,600 pages (still about 30% shorter than ObamaCare!), and I’ll be asking for a time extension shortly to allow me a full opportunity to comb through each and every page.

My other three suits (illegal detention at FLL, NYPD stop-and-frisk, and NYPD street body scanners) are still awaiting rulings on dispositive motions, as they have been since April. I have no idea why these are going so slowly — the issues presented are hotly debated but not terribly complex.

nofoiaIn other news, I sent the NYPD a public records request a few weeks ago on a matter completely unrelated to my lawsuits (I asked for information regarding how they determine whether to accept or reject pistol permit applications). The NYPD has a “FOIL Unit” that is a part of its “Legal Bureau,” which is where the request was sent. I got back a letter stating that they don’t have the records, but that “NYPD – License Division” may have them. So, essentially, the NYPD asks for records requests to be sent to a specialized department that, obviously, doesn’t have the records in their office and refuses to go and get the records. I’m presently awaiting a callback from Lt. Mantellino to explain why he feels that this run-around is in any way legal.

NYPD: Can’t Sue Us Over Body Scanners Until We Violate You

In my suit against terahertz imaging by the NYPD, their motion to dismiss based primarily on standing is now fully briefed. In it’s final say on the matter, the NYPD argued the following:

Plaintiff Will Have Standing If, And When, The NYPD Implements The Scanners And Plaintiff Is Among The Scanned

In other words, the NYPD argues that the courts may not prevent the NYPD from violating the people — they must wait until they have already violated the people. Luckily for the people, that’s actually not the legal standard. In addition to stepping in once an actual injury has occurred, the courts may step in when an injury is “imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 561 (1992). Additionally, threatened injury is sometimes enough to cause actual injury (for example, a threat to the right to speak freely is often enough to convince a court that people are not speaking because of the threat, and therefore an actual injury exists). The court may or may not decide that my injury is imminent enough (and if he decides against, I can re-open the case as soon as the scanners hit the streets), but it certainly won’t be based upon the NYPD’s deranged interpretation of the cases and controversies clause.

Corbett v. City of New York II – Motion to Dismiss (.pdf)
Corbett v. City of New York II – Motion to Dismiss Opposition (.pdf)
Corbett v. City of New York II – Motion to Dismiss Reply (.pdf)

NYPD Asks Nicely for Judge to Dismiss; Judge Tells City to File a Real Motion

In response to my suit against NYPD street body scanners and the motion for preliminary injunction, the city, a day after its response to the motion for preliminary injunction was due, sent the judge a 4-page letter asking the judge to toss the entire case. Nothing surprising in the argument… basically, “we haven’t done anything yet so there’s nothing to sue for, and this Florida guy doesn’t even live here.” Of course, when the city admits that they’re going to begin testing ASAP, and when the complaint clearly indicates that I travel within the city for several weeks a year, this argument is of limited utility.

What *is* surprising is the city’s response by letter. No formal opposition to the motion for injunction, no formal motion to dismiss, just a 4-page “Yeah, nothing to see here, just toss that aside, k?”

Before I had a chance to finish typing my response to their letter, the judge denied their request to dismiss, offering them 2 weeks to file a real motion. The motion for preliminary injunction remains looming. It is unclear whether the judge plans to wait until the motion to dismiss is received to rule on it, but my bet is that he will.

Corbett v. City of New York II – City’s Letter to Dismiss (.pdf)
Corbett v. City of New York II – File a Real Motion Order (.pdf)

NYPD Fails to Respond to Motion for Injunction

Today marks the two-week anniversary of my latest lawsuit, requesting the federal courts to shut down the NYPD’s plans to scan New Yorkers as they walk down the streets for guns without suspicion at all. The city was simultaneously served the complaint as well as a motion for a temporary restraining order and preliminary injunction*. By local rule, their opposition, if any, is due by midnight tonight. So far, crickets chirp when opening the docket.

What does this mean? Likely the city asking for an extension shortly, which would probably be granted, but may not be: motions for temporary restarining order can be granted ex parte, so technically the judge needn’t have waited for a reply at all. I’ve e-mailed the city’s attorneys in hopes that the new e-mail sound effect on their inbox will wake them from their slumber. It’s nice to see that the city takes this matter as seriously as it does the civil liberties of its citizens.


* What’s the difference between a temporary restraining order and a preliminary injunction, you say? In the federal courts, a temporary restraining order is a short-term injunction that a judge can act on immediately, without waiting for the other party to respond, lasting only until a motion for preliminary injunction can be heard. A preliminary injunction, on the other hand, requires motion practice including time for oppositions and replies, but this type of injunction can last until the merits of the case are decided — potentially for years.

Q&A on Lawsuit Against NYPD Scanners

Thanks again for your support — yesterday was awesome! 🙂 It feels so good to make a difference, and win or lose on the suit, the NYPD’s plans to scan people walking the sidewalks of the city are now front and center — before hundreds of these things were deployed. If we only would have hit the TSA hard when they were doing pilots of their scanners, I think we would have had a chance at stopping the whole thing, and I hope not to let that opportunity go to waste here.

I’m seeing some recurring questions and misconceptions in the comments here and on the news sites (NY Daily News, NY Post, Village Voice, Gothamist), so I wanted to comment more prominently on the following:

Q. These scanners don’t produce embarassing images like the TSA scanners… what’s the big deal?
A. The big deal about the NYPD scanners is not that they’re conducting an intrusive, invasive, or embarassing search. The big deal is that they’re conducting a search at all. The police may not search the people without individualized suspicion. They’re not even allowed to demand ID without reasonable suspicion. To allow them to search our bodies in any way is entirely novel to this great nation.

Q. If the scanners were more accurate / less prone to error / more specific, would you still be opposed?
A. Yes! NO SEARCH is allowed without reasonable suspicion. Even that is a stretch from the intent of the framers of the Constitution, who specifically called for probable cause (a much higher standard), but the Supreme Court has allowed police a limited exception for weapons checks at the lower standard of reasonable suspicion.

Q. Then how do you expect the police to get illegal guns off the streets?
A. These scanners actually bring New York’s gun laws front and center. In any other state, save for perhaps IL and DC, having a gun doesn’t presume you to be a criminal. In NY, it is so impossible to get a gun license that the police expect that they can scan the general public and anyone with a gun is almost certainly a criminal. People walking around with guns should not be presumed to be criminals in America, and the NYPD’s attempt to make it so is appalling. Chicago and DC’s handgun laws have been firmly slapped down over the past few years, and I expect NY will feel the same quite soon. For example, it is currently an impossibility for me to legally carry a gun in NY — the state does not accept out-of-state pistol permit applicants and honors no other state’s licenses. How is it that the second amendment guarantees our right to bear arms (as confirmed by the Supreme Court) yet I can’t legally do so in NY? Regardless, NY can do what every other state does: if you have reason to think someone has an illegal gun, get a search warrant.

Q. Why didn’t you bring up the radiation issue? These things are dangerous!
As best my research has led me at this point, I do not believe that NYPD scanners emit any radiation — they appear to be “passive” scanners, which means they are basically just digital cameras that capture a different type of light and run analysis on that light. They don’t put out their own light. If it comes out that these scanners do emit their own terahertz waves, we can look at the issue from there.

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