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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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Jonathan Corbett

Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in "How to Get ANYTHING Through TSA Nude Body Scanners." Presently a law student, he continues to advocate for travel and privacy rights. Twitter: @_JonCorbett, Web: https://professional-troublemaker.com/

Is An Event Producer Liable for Event Security?

bouncerIt seems to be quite common for large nightclubs and events to hire third-party security companies in an attempt to reduce their liability in the event that things go wrong and security injures a patron.  New York nightclub Flash Factory, who I sued with a co-plaintiff last month for battery stemming from a “security search” that apparently involves gratuitous touching the breasts and genitals of their patrons, denies in their answer that they are liable for the torts (civil wrongs) of their contractors.

Will Flash Factory’s argument get them off the hook?

Not a chance.

Let’s look at 3 kinds of liability that could be alleged against one who throws parties secured by abusive security, using general principles of agency law common among the 50 states.  Agency law, by the way, determines when one party (the “principal”) is liable for the acts of another acting on his or her behalf (the “agent”).

Direct Liability

Direct liability is imposed on the person who actually commits a tort.  Obviously the bouncer herself whose hands were actually on my body is directly liable, so the nightclub is therefore not directly liable, right?  Well…

“A principal is subject to liability to a third party harmed by an agent’s conduct when the agent’s conduct is within the scope of the agent’s actual authority or ratified by the principal; and (1) the agent’s conduct is tortious, or (2) the agent’s conduct, if that of the principal, would subject the principal to tort liability.”  Restatement (Third) of Agency, § 7.04.  (The “Restatements” are documents put out by the American Law Institute that reflect the general policies found in the United States regarding specific areas of law.)

The problem for Flash Factory and other event producers comes when they direct security to perform a specific kind of search (give them “actual authority”), or knowingly allow it to continue (“ratification”).  Given that complaints about Flash Factory’s search methods have persisted for at least a year — and even after they had notice of my lawsuit — Flash Factory will have an uphill battle to show that that they didn’t direct their security to behave in this way, or at least ratify it.

Vicarious Liability

“An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.”  Restatement (Third) of Agency, § 7.07(1).  Further, an employer is not generally liable for the intentional torts of his employees, because the scope of their employment generally does not include intentionally harming others.  Since independent contractors are not “employees,” and since battery is an intentional tort, I guess Flash Factory’s off the hook on this one, right?

Nope.  While, in general, an employer is not liable for the torts — especially intentional torts — of his or her independent contractors, it is often stated that this rule is merely the “preamble to a list of exceptions.”

Before we get to the true exceptions, we should note that under agency law, “employee” doesn’t mean the exact same thing it means to the IRS.  Rather, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.”  Restatement (Third) of Agency, § 7.07(3)(a).  Can Flash Factory seriously argue that they had no right to direct the bouncers of their nightclub as to how they want a security search to be conducted?  Good luck convincing a judge and jury of that.  But, it should be noted that for an event producer who does not control the venue — that is, one who throws parties at a premises owned and secured by someone else — they would likely not have vicarious liability under this rule, because a nightclub does not generally concede control of security to the third-party producer or promoter (but, read on).

Now, the classic exceptions to non-liability for torts of independent contractors that any law student will be familiar with: (1) the conduct was authorized by the principal, (2) the conduct was a natural incident to carrying out the employer’s directions, or (3) the conduct was motivated by a desire to serve the principal.

We discussed the first above under direct liability. Regarding the second and third, which very much go hand-in-hand, the quintessential example in law school textbooks is the bouncer.  One who is employed for a job under which their duties include physical and hostile contact with others naturally may cause injury to the others, and that physical and hostile contact is in service to the employer.  Think of it this way: if a bartender sees an unruly customer and uses excessive force to eject that customer, we would not be able to apply this exception because battery is not naturally incident to serving drinks.  But a bouncer’s job is literally to do the same, and if he or she does so with excessive force, it will be considered incident to the service of the employer.  Again, the third-party producer or promoter will likely escape liability (it’s less a service to the third-party than to the venue owner), but a venue owner such as Flash Factory will find themselves on the receiving end of a judgment, regardless of whether the offending bouncer was an employee or a contractor.

Negligence

The third way the party thrower may find themselves liable for the acts of their bouncer is in negligence.  Under negligence law, the employer is not liable for the battery, either directly or vicariously, but is liable because they had a duty to provide a safe environment and failed to do so.

A simply-put formula for negligence is: (1) the existence of a duty, (2) which was breached, (3) which caused, (4) injury to the plaintiff.  Duty, breach, causation, injury/damages.  “Injury” doesn’t necessarily mean physical injury, but rather injury to any legal right (including the right to be free from non-consensual contact).

A full examination of the duties of a club owner would be lengthy, but they include maintaining a reasonably safe premises and using reasonable hiring practices.  If the nightclub was unsafe or a person was injured by someone hired by the club that should not have been (or, e.g., because the club failed to hire enough security), this duty was breached.  And, as long as the injury was traceable to the breach (i.e., wouldn’t have happened anyway), we have causation.

It will be interesting to see Flash Factory’s argument as to which of these elements is missing to avoid liability in negligence.  I certainly wouldn’t want to be the lawyer arguing it, but I suspect they will try to attack breach.  That is, they will say that any injury that happened to me happened despite the fact that they acted reasonably.  Will they be able to show evidence of specific things they have done that were sufficient to reasonably ensure that the harm that happened would not happen?  I think it is unlikely.

They may also try to attack breach by saying that their search was reasonable because they need to stop drugs from entering the venue.  This ignores the fact that they have a duty to both avoid battering their customers and not be a drug den.  This will be problematic for Flash Factory given that drug use is obviously rampant within the venue despite their door search.  You can’t claim that it’s “reasonable” to inspect my crotch when you allow people to wander around inside that are clearly obliterated, and even if a groin search of every customer were somehow “necessary,” failing to obtain the consent of those entering, and instead just grabbing at their breasts and genitals without warning, is negligent.

But what of the third-party event producer?  Well, they didn’t hire security, nor do they have control over the safety of the premises, so they are unlikely to be subjected to negligence liability for the same duties as the venue owner.  But, they do have a choice over where to host their events, and if they do so at a venue that is well-known for injuring its customers, they may face liability for negligently selecting the venue. So, for example, if you host an event at Flash Factory now, knowing that they regularly molest their customers in the security line, you may be running a risk of being liable for their wandering hands.

The Bottom Line

The key to determining liability is right to control.  If you have the ability to mitigate a harm that may arise in the course of running your business, but fail to do so, you’re probably liable.  Likewise, if you pay a contractor to do a task and they screw it up on their own, without your knowledge or reason to have knowledge, you’re probably not liable.  But hiring an outside company to do your dirty work for you is not an automatic free pass.

This means if you’re a venue owner, choose your security wisely and monitor them carefully.  It’s not only good for avoiding liability, but also customer frustration.  Why not choose a security team that deescalates situations, treats customers with respect, and makes your venue a place that is both comfortable and safe?

If you’re a third-party event producer — a role I’ve indeed played — having the right venue is key, and it’s important to remember that everything is negotiable, including security.  There’s no reason not to discuss the details of how your customers will be interacted with when they first arrive at the venue.  And if a venue is well-known for assholery at the door, find a new venue.  Regardless of whether you’re taking a legal risk, you don’t want to be associated with that.

So What’s This “New” TSA Pat-Down?

About a couple weeks ago, the TSA announced that it would be “enhancing” its pat-down by, basically, “touching your junk” a bit more.  There was apparently enough concern about its intensity that the TSA warned police in advance that it might generate sex assault complaints.

You may have noticed this blog was conspicuously quiet on the matter, and that’s because of both conflicting reports as to the scope of the updated groping and because of some inside knowledge on what the TSA is up to.  But, having gone through the TSA’s pat-down today and LGA, here’s the deal:

First, if you’re getting a pat-down because you alarmed the body scanner, it’s going to be a full-body pat-down despite the fact that the scanners were specifically designed to point out the specific area of the body upon which an item was detected.  From what I could see at the checkpoint, this is a much briefer version of the opt-out pat-down, but still touched every area of the body.

Second, if you’re getting a pat-down for a reason other than alarming the body scanner (e.g., you opted out), the only difference I noticed was that the “groin search” used to involve several vertical back-of-the-hand swipes from your bellybutton to your crotch, it now is 3 horizontal swipes (from hip to hip) followed by 3 vertical swipes.  It’s slightly more invasive, but given that the TSA was all up in your crotch before, it’s not that big of a change.

In conclusion, the only place you’re likely to notice a change is if you alarm the body scanner.  Given that about half of people were getting patted down by this supposedly brilliant technology while I was watching today (and, of course, the pat-downs finding nothing), that may be significant if you weren’t already opting out.

Given that chances are you may get a pat-down anyway, may as well opt-out, eh?

Five Years After “How to Get ANYTHING Through TSA Nude Body Scanners,” Still Can Get Anything Through TSA Nude Body Scanners

5yeartsavideoanniversaryToday is the 5 year anniversary of the release of my viral video, “How to Get ANYTHING Through TSA Nude Body Scanners,” which was covered by the media in over 100 countries and moved me to #1 on the TSA’s list of “people they don’t like,” probably just above Osama bin Laden and the members of Nickelback.  After its release, the video was presented to state legislatures and U.S. Congress, the science confirmed by university researches, and the TSA has worked hard to ignore my findings and silence the media.

Does the problem I found in 2012 still exist in 2017?  In the words of Sarah Palin, “You betcha!”

The TSA would love for the public to believe that their latest-gen scanners made my work obsolete, but the fact of the matter is that fixing the problem would require a visible hardware or process change, not a stealthy software change (watch me beat a L3 ProVision with ATD, the model currently in use at most airports).  They haven’t done this because every fix has a drawback.  On the hardware side, the TSA could implement add transmission x-rays to the backscatter x-rays (dangerous) or could make the booth completely enclosed for a 360° scan (making the process a claustrophobia-inducing nightmare).  On the process side, they could scan passengers twice, requiring them to turn 90° between scans (doubling the processing time and crippling our nation’s air transportation system, and exposing us to twice the radiation).  Having done none of the above, I have every reason to believe that the same exploit would work today.

At least the TSA has started to take some of my advice.  For example, at MSP, JFK T4, and a few other airports, they have bomb-sniffing dogs (but they get ornery when you try to take their pictures), and all passengers who walk by a dog are given PreCheck treatment (no body scanner).  They could also do an explosive trace swab on passengers as they wait in line at a fairly minimal cost (at least an order of magnitude less than the cost of the body scanner program), and then direct all of those passengers to PreCheck-style treatment.

But alas, that’s not as cool, as the TSA doesn’t get to spend billions on shiny new toys, so like a passive-aggressive child told to eat his peas who then eats them one at a time, we can expect any change with the TSA to come in small increments, and generally attached to additional stupidity.


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Flash Factory Attorney Greg Garber: Sexual Assault Plaintiffs “Should Be Ashamed Of Themselves”

Two weeks ago, I jointly sued NYC nightclub Flash Factory for molesting myself and a female friend as a part of their standard security practice, which apparently involves open-hand grabbing of the genitals of male attendees and reaching under the bra to feel the breasts beneath for female attendees.  Their response to our complaint, filed in New York County Supreme Court, is due next week.

I got my first contact from Flash Factory’s attorney today, New York attorney Greg Garber, who asked me to call him.

greg-garber-nyc-attorney
Greg Garber, Esq., apparently thinks that sex assault victims who file civil complaints should feel ashamed.

After we connected, he told me I “should be ashamed of myself” for filing the lawsuit and that they’d file a reply shortly.  I asked him point-blank if I should be ashamed of complaining of security molesting their patrons and making my friend cry as a result of being shocked and violated by their unprecedentedly invasive security search, and he replied yes.  His only purpose of the call, apparently, was to tell me off.  He also refused to identify the legal name of the security firm.

Greg, 40 years ago called, and they want their victim blaming back.  Here in 2017, no victim of a sexual assault should feel that they are at fault if they report it.  You, sir, are a part of the problem, and it is you, sir, who should be ashamed of himself.

DHS Quietly Testing Mandatory Facial Recognition of Passengers *Exiting* U.S.

facescanWe’re all used to having to identify ourselves as we enter a country.  It is the only way we can hope to have any attempt at a secure border.  But, so-called “exit controls,” where documents are checked as travelers are leaving the country, were popularized last century by Nazi Germany as a great way to ensure that they could control, round up, and exterminate the Jews and other “undesirables.”  It can obviously serve no purpose of keeping terrorists out, because it only affects those who are already in.  The U.S. has never had exit controls, although they remain popular in Europe, Russia, and China.

Last week, privacy advocate and blogger Jeffrey Tucker posted his experience before a flight from Atlanta to Mexico:

Halfway down the jetbridge, there was a new layer of security. Two US Marshals, heavily armed and dressed in dystopian-style black regalia, stood next to an upright machine with a glowing green eye. Every passenger, one by one, was told to step on a mat and look into the green scanner. It was scanning our eyes and matching that scan with the passport, which was also scanned (yet again).

Welcome Aboard, But First U.S. Marshals Will Scan Your Retina,” published 2/25/2017.

A bit of research uncovered that CBP announced a 2-month pilot program last year for flights between Atlanta and Japan in which they would be doing facial scans as passengers were about to board their flights:.

As part of the testing, travelers will present their boarding pass while their digital photo is taken. The process will take less than three seconds before travelers proceed to the passenger loading bridge to board their flight. Travelers over the age of 14 and under 79 will be required to participate in the test. The test will evaluate CBP’s ability to successfully compare the image of a traveler taken during departure against an image the traveler previously provided, in an automated fashion and without impacting airport operations.

This was, apparently, announced sufficiently quietly that I had not before heard of the program.  The 2 month window has expired, and there is no mention on their Web site, that I can find, of a new program between Atlanta and Mexico.  But, it seems to me that the likely scenario is that CBP has re-started this program and Mr. Tucker confused U.S. Marshals with CBP officers, and retinal scanning with face recognition scanners (not that it makes a difference in terms of our privacy).

What exactly is the point of this?  Are we hoping to catch someone who has overstayed their visa so that we can stop them from leaving, then take them into custody so that the taxpayer can fund their leaving?  It may simply be a dumb idea, or it may be a far more sinister plan to further control the movements of everyone in the country, citizen or otherwise.

Either way, count me out, and I encourage you to refuse as well.

DHS Detains Entire Domestic Flight, Demands ID From All

On Wednesday, law enforcement from Customs & Border Patrol, a sister agency of the TSA living under the DHS umbrella, stood in a JFK jetway and prevented an entire 757 (capacity: 180 + crew) full of passengers from deplaning until they show ID.  If the flight just came from overseas, it would be unusual but not too surprising.  But Delta Flight 1583 came from San Francisco.

cbp-detains-plane
“Your papers, please!”  Source: Twitter – @annediego

Who were they looking for?  One of Trump’s illegal immigrants, of course.  “According to CBP, the person agents sought had been issued an order of removal based on convictions for domestic assault, driving while impaired, and violation of an order of protection.” (Gothamist).  After checking every ID, they determined that the person they were seeking was not on the flight.

Let’s be clear about a few things here:

  1. Every person on that plane was “seized” as it is defined in Fourth Amendment law.  That is, a reasonable person would not believe they were free to go, and thus, they were detained.  United States v. Mendenhall, 446 U.S. 544, 554 (1980).
  2. The minimum standard for seizing an individual is “reasonable suspicion” that criminal activity is afoot.  Terry v. Ohio, 392 U.S. 1 (1968).
  3. There was not reasonable suspicion that the 180 passengers on that flight were involved in a crime.  In fact, there was not even reasonable suspicion that the person they were seeking was committing a crime.
  4. There was no “public safety” or “exigent circumstances” exception here.  This was not a hunt for a terrorist with a bomb — his most serious charge was assault.
  5. Therefore, the Fourth Amendment’s command that “[t]he right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated” was indeed violated.
  6. Additionally, the elements of civil “false imprisonment” in New York are: (1) intentional confinement, (2) consciousness of the confinement by the victim, (3) lack of consent, and (4) lack of privilege.  Broughton v. New York, 37 N.Y.2d 451 (N.Y. 1975).  Given that they were seized in violation of the Fourth Amendment, there is no privilege, and everyone on this plane has a case for false imprisonment.

It’s times like these when I can’t wait to have my law license, because this would be a perfect class-action.

For future reference, you may be wondering what are your rights in this situation.  Given that the seizure was unconstitutional, you have the right to refuse to participate at all.  You may refuse to show ID, you may refuse an order to stop, and if it were me, I would refuse to retract my middle finger.  Would I have been arrested anyway?  Possibly, although being a white American, I have a feeling they would have just told me to go.

Welcome to Trump’s America.

Insomniac Lawsuit Dismissed on Technicality, Policy Changed (For Now), Open Offer for Help

For those following my lawsuit against music festival producer and Live Nation subsidiary Insomniac, filed last year against their policy banning all OTC medicine and requiring a “consultation” to bring in prescriptions, some updates…

First, the lawsuit was tossed by U.S. District Judge Philip Gutierrez because, he says, I didn’t provide evidence that I asked Insomniac to change their policy before suing, which he reads as a prerequisite to a federal ADA suit.  There were also state discrimination law claims, but the law allows a federal judge to decline to hear a state claim after the related federal claim is dismissed, so he tossed that too.  No ruling was made on the true merits of the case: whether the medicine policy was legal.

I think Judge G misread the law regarding notice, and he certainly misread my filings alleging that I *did* give notice.  As I wrote about before, this judge is famous among federal judges for seeking ways to get cases out of his courtroom.  I could appeal, or I could re-file the state law claims in state court, but I won’t (in favor of a better plan… keep reading!) for 2 reasons:

  1. Insomniac ran up a fucking massive legal bill.  If the appeal failed, the attorneys have some likelihood of asking me to pay at least a part of that — plus whatever additional amounts they spend defending the appeal.  Insomniac agreed to pay their own bill in exchange for not appealing or re-filing.
  2. Insomniac removed the offending medicine policy from their Web site… for now.  This may be a sign that they are changing their ways, which would be mission accomplished.  But, even if it’s not, it makes it harder to sue them because they are no longer advertising discrimination.

So here’s the new, better plan: an open call for anyone who is ever refused entry over medicine or has their medicine thrown out at the gates of EDC to contact me.  If I think you have a good case, I will find and fund an attorney to fight the case, and offer my assistance to your attorney as his paralegal without cost to you.  If Insomniac did indeed decide to fix their policy, then this won’t be necessary, and if they didn’t, I’ll be able to get a second fight against it, with the benefit of the knowledge I gained the first time, with a different judge, without the “you didn’t give them notice” issue, and without the attorney’s fees and costs from this case able to be threatened.

Flash Factory Nightclub in NYC Sued for Groping Guests During Security Search

flash_factory_sued
The scene inside Flash Factory hosting Elrow on 12/23/2016

Continuing my quest to call out music and nightlife companies that think their patrons should bend over and accept any rule dreamed up, however offensive and illegal, today a friend of mine and I filed suit against New York nightclub “Flash Factory,” located in the Chelsea neighborhood in Manhattan.

The basis of the suit is this: we were heading to a concert at Flash Factory, never before having been to this relatively new venue.  On the way in there was a pat-down, which we assumed was just a quick check of pockets for weapons as some New York nightclubs do.  But, both of us were shocked when a security guard, without warning, lifted my friend’s bra off her chest to feel her breasts, and likewise, decided to flat-out grab my genitals.  I don’t mean TSA-style “sliding hands up your legs until they ‘meet resistance,'” often bumping the sides of their hands into your crotch.  I mean straight-up, full palm and fingertips checking out my junk.

After the incident, I immediately wrote to, and my friend called, Flash Factory, and both of us were entirely ignored.  No apology, no acknowledgement, no response at all.  No one should have to deal with sexual assault to get into a nightclub.  It is atrocious that they feel the need to treat their customers this way, so, a new lawsuit against them for battery and negligence was filed in New York County Supreme Court.

Corbett & Domyan v. Flash Factory et al. – Verified Complaint (.pdf)

Good luck ignoring that, Flash Factory.

[Edit – Since posting, numerous people have shared their story of being molested by Flash Factory.  I’ve created a separate Web site dedicated to posting stories of abuse at Flash Factory.]

U.S. Court of Appeals Allows Restraining Order Against “Muslim Ban” to Continue, Considering Re-Hearing En Banc

angry_trumpThe U.S. Court of Appeals for the Ninth Circuit ordered last night that a Washington state federal judge’s order restraining Trump from enforcing his Muslim ban — the one that effectively bans Muslims from 7 countries from entering the United States, even if they are green card holders or have refugee status — shall not be lifted.

Washington v. Trump – Order Denying Motion to Lift TRO (.pdf)

From the 29-page, well-reasoned opinion:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. …

The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim…

Since posting my first story about this, I’ve had many comment on the blog that my constitutional analysis (tl;dr: it’s unconstitutional) is wrong and that it’s not a Muslim ban because Trump didn’t ban all Muslims (yet).  I have two questions for you:

  • How many judges must rule that Trump’s ban is unconstitutional before you will stop blaming “activist judges” for getting the law wrong?  The ruling yesterday was a unanimous 3-judge panel, which brings the total up to at least 6 federal judges now ruling against the ban.
  • How many Muslims must Trump ban before you admit it’s a blatant attempt to discriminate based on religion?  (If he adds Indonesia to the list, will that be good enough?)

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