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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 It *Really* Impossible To Get A Gun License in NYC? (Part X — Federal Lawsuit Filed)

This is the tenth 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). 


Federal Gun License ComplaintIn June, New York’s highest court refused to hear my challenge to New York City’s practice of giving gun licenses only to those with the right “connections” to the government — connections being bribe money, literally being a rock star, or just having friends in the right places.  Since the U.S. Supreme Court confirmed that Second Amendment rights are applicable to individuals without regards to “militia membership” in 2008, the New York Court of Appeals has plugged its ears to literally every case to come before it that asked the court to conform New York law to the Supreme Court’s mandate (as they must).

My state remedies now exhausted, I turn to the federal courts for help.  This morning, I filed a lawsuit in the United States District Court for the Southern District of New York against the City for its refusal to allow the ordinary, law-abiding citizen to arm themselves.

Full Complaint: Corbett v. City of New York – Complaint with Exhibits (.pdf)

If you’ve been following along, many of the arguments match up with those in the New York courts.  But, there’s a couple new things.

First, there have been some good decisions in other federal courts as of recent.  On the west coast, the 9th Circuit last month struck down Hawaii’s ban on citizen gun licenses in Young v. Hawaii (.pdf).  On the east coast, the D.C. Circuit struck down the same last year in Washington D.C. in Wrenn v. D.C.  These updates may or may not persuade the 2nd Circuit that covers New York, but they definitely make it more likely that the U.S. Supreme Court will hear the case.

Second, I’m adding a new equal protection claim that I don’t think has ever been brought here.  “Equal protection” is a part of the 14th Amendment to the U.S. Constitution that requires the government to treat everybody similarly unless there are really good reasons not to.  In this case, the main problem is New York’s “proper cause” requirement, which (in New York City and a handful of other counties in the state) demands that citizens show a reason greater than that of an ordinary citizen to get a license.  However, New York City exempts retired police officers from this proper cause requirement, even though there’s really no logical relationship between being a retired cop and “needing” a gun.  This brings up a classic equal protection scenario: if the NYPD wants to let its retired cops carry, it has to let me carry too.  If the court agrees, the City may have a choice between taking away guns from retirees or giving us plebs our constitutional rights — a political quagmire indeed.

The case is no. 18-CV-7022 and was assigned to U. S. District Judge Katherine Polk Failla, an Obama appointee.  The City will be served today and will have 3 weeks to craft a reply.  More updates then.

Third Circuit All But Immunizes TSA Screeners From Lawsuits for Abuse

Pellegrino v. TSA - Panel OpinionThe federal courts have had a very difficult time figuring out how people can seek redress against the TSA, either via policy challenge or challenge to specific abusive interactions with screeners.  The Third Circuit of the U.S. Court of Appeals, which services New York armpits New Jersey, Delaware, and Pennsylvania, has taken that challenge to the next level with two decisions that work together to make it very, very hard for someone who was abused by TSA screeners to win a lawsuit.

[Edit – The media is reporting the ruling as “TSA agents can’t be sued for false arrests, abuse, or assault.”  I disagree with this conclusion.  Read on…]

Vanderklok v. United States (.pdf), 868 F.3d 189 (3rd. Cir. 2017) was, relevant to the discussion, a suit against a TSA screener himself.  The plaintiff alleged, in brief, that a TSA screener got annoyed with him and told the cops he made a bomb threat, resulting in the plaintiff’s arrest.  Vanderklok made a First Amendment claim, arguing that his words were what annoyed the screener, and therefore the screener having him arrested violated his free speech.

Constitutionally-oriented lawsuits against individual government agents are generally known as “Bivens” lawsuits, and the idea is that if the Constitution provides a right, then it implies that the courts should be able to hear a case against someone who violates those rights.  The Third Circuit took to heart the U.S. Supreme Court’s direction that lower courts should hesitate to allow new kinds of Bivens lawsuits, and thus ended Vanderklok’s First Amendment challenge.  There is a long test the Supreme Court uses to counsel as to when Bivens should be extended to another area, but the most important part of this test is whether Congress has created some other kind of remedy.  If there’s another way to sue and be made whole, Bivens isn’t necessary.  Despite it being doubtful that there was another way to sue, the Vanderklok court emphasized that “TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers,” and therefore should be off the hook for retaliation claims because they don’t know any better.  (Don’t hurt yourself trying to appreciate the wisdom in that one.)

Poorly reasoned, but fine, if there is another way to sue.  The Third Circuit resolved that issue today.

Pellegrino v. TSA (.pdf), 15-3047 (3rd Cir., July 11th, 2018) addressed the only potential other way to sue.  Relevant to the discussion, it was a suit against the TSA itself (as opposed to Vanderklok, where an individual screener was sued).  Suits against the government for money damages come under the Federal Tort Claims Act (FTCA), a law written by Congress discussing the terms under which one may use the federal courts for such a suit.  The predicate for Pellegrino’s claim was similar to Vanderklok’s: a screener, annoyed with her, had her falsely arrested by the cops.

The FTCA allows for most types of personal injury claims (including civil rights staples like assault, false arrest, etc.) so long as the injury was caused by “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests” (28 U.S.C. § 2680(h)).  However, the courts have been hesitant to find that TSA screeners are covered by this law, notwithstanding the fact that their job is literally to execute searches, because TSA searches are, in the courts’ view, different from traditional law enforcement searches.  The Eleventh Circuit tossed several FTCA claims against the TSA of mine a few years ago, holding that TSA screeners are not “officers of the United States” (despite their job title literally being Transportation Security Officer).  Corbett v. TSA, 568 Fed. Appx. 690 (11th Cir. 2014).

Today’s ruling in Pellegrino does the same, although for different reasoning.  The Third Circuit found that the language the FTCA uses implies that Congress only intended it to cover law enforcement officers, and TSA is not law enforcement.  This ruling has 2 problems: 1) Congress’ intent is only relevant where the statute is ambiguous.  It strains credulity to argue that TSA screeners are not “empowered by law to execute searches,” in my view, but the Third Circuit concluded that “searches” is ambiguous enough to need to examine Congressional intent, 2) The FTCA was written before the TSA was created, so therefore Congress could not have had intent to exclude or exclude them, and 3) since Vanderklok foreclosed Bivens suits, there is now no recourse for those injured in the ways that Vanderklok and Pellegrino were injured.

Put another way, in New Jersey, Delaware, and Pennsylvania, there is now no recourse if a TSA screener intentionally, falsely calls the cops and says you threatened to blow up the airport, because they decided they don’t like your attitude.  If you spend the night in jail because a TSA screener lied, you’ve got no lawsuit.  Not against the TSA, the TSA screener, and probably not against the cops either.

The rulings don’t directly address more traditional Bivens claims, such as one for assault or false arrest.  If a TSA screener beats you or physically restrains you, you may (may!) still have a suit in the Third Circuit.  But malicious prosecution, retaliation, defamation, invasion of privacy, emotional distress, and conspiracy to do any of the same?  Congress intended that the TSA not be held accountable for that, says the Third Circuit.

The decision was a 2-1 panel opinion, with a well-reasoned dissent to the now binding law in that circuit (long, but worth a read).  I look forward to the plaintiff’s motion for rehearing en banc (by the full Third Circuit), for which I’ll be writing an amicus brief.

Is Pushing Someone on Train Tracks “Attempted Murder?”

I have to admit: when real life presents hypotheticals that are academically interesting for lawyers, I get a little bit excited.  Last year, a man named Kimani Stephenson made one for the law books when he pushed a woman onto New York City subway tracks.  The victim described it as follows:

“This guy, he came up behind me and he grabbed one of my boobs with one hand, and he grabbed my vagina. I told him to fuck off, and he pushed me onto the train tracks,” she recalled.

“There was no train coming, thank God,” Currie said. “I keep playing the scenario over in my head. There weren’t any MTA police on that particular track, so I don’t know what I would have done if there hadn’t been bystanders.”

Clearly, the defendant is guilty of assault and other crimes, but is he guilty of attempted murder?

At common law (the law we inherited from the British), attempted murder requires 2 things: 1) taking an action towards the death of someone (a “substantial step”), and 2) the intent that your actions result in the death of that person.  That second part is called a “specific intent” requirement.  That is, it’s not enough that you did what you did on purpose, but rather that you must, in your own mind, intend a specific result.  Modern New York law on the matter doesn’t substantially deviate from the common-law view.

The first element is not very interesting: pushing someone on a train track is undoubtedly a substantial step towards murder.  The second element is where the fun is.  Like any good law school essay question, you can argue that specific intent both ways.  You can argue that one doesn’t push someone onto train tracks unless they want them to die.  However, if your law school essay doesn’t also pick out the words, “There was no train coming,” you lost major points on this question.  The defense will argue that pushing someone onto an empty train track is unlikely to cause death and shows that the defendant didn’t actually intend that the victim die from the actions.

But New Yorkers love throwing the book at the bad guy, and so when Manhattan ADA Maxine Rosenthal decided to press attempted murder charges, the local Reddit community cheered:

Reddit Does Not Like Kimani

…and I was mocked for being a soft on crime or ignorant on the law, including by several “Internet lawyers,” for trying to explain the above…

too_soft

Unfortunately, no charity will be getting a $500 donation, as a Manhattan jury acquitted Mr. Stephenson of attempted murder last week:

“We felt he acted in a fit of rage and he wasn’t thinking enough to have premeditated anything,” said juror Catherine Wald, 64.

“There was no argument, proof or any evidence he had intent in the moment to kill her even though we all got convinced he was the perpetrator,” added foreman Dmytro Zhuravtsky, 44, who works in quantitative research at a large financial institution.

Fear not: the perpetrator still faces 25 years in prison on the first degree assault charge (which, if I’m reading correctly, comes with a 5 year mandatory minimum).  But, say it with me: it’s not attempted murder unless the defendant actually intended that the victim die.  On the situation presented here, I don’t know how the ADA intended to prove the specific intent beyond a reasonable doubt.  The charge should not have been brought.

The ADA and defense counsel were contacted for comment but have not replied as of the publication of this story.

Is It *Really* Impossible To Get A Gun License in NYC? (Part IX — N.Y. High Court Won’t Hear)

This is the ninth 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). 


A brief update: To the surprise of no one, the N. Y. Court of Appeals has denied (.pdf) my motion for leave to appeal my gun license case, this concluding my state-level judicial remedies.  In doing so, the Court has continued a long-standing tradition not of coming out and approving the City’s gun laws, but refusing to even consider the matter.  Since the U. S. Supreme Court clarified a decade ago that the 2nd Amendment is an individual right not tied to militia membership, the N.Y. Court of Appeals has refused every case that has come its way on the matter.

The leading case on gun rights in this jurisdiction is, in fact, a federal case that the N.Y. high court also refused to hear.   And so, this is the way my case will go: the next update will be a pleading filed in the U.S. District Court for the Southern District of New York, asking the federal courts to declare that the due process I have received to date has been deficient.  My license app was decided by a corrupt cop, reviewed by a court that applied the wrong standard, and appealed in courts that simply didn’t care.

Let’s fix this.  Stay tuned.

 

NYPD Union: City Complaint Agency “A Disgrace” for Fourth Amendment Tweet

In New York City, garden-variety complaints of police officer misconduct can be filed with the Civilian Complaint Review Board, a city-run agency with the power to investigate complaints and recommend sanctions to the police commissioner when warranted.  The existence of the CCRB provides an avenue for the public to report problems other than to the courts — probably saving the city a fortune every year in judgments, settlements, and legal fees.

On May 4th, the CCRB tweeted about the Fourth Amendment, with a link to report to them police violations of the same.  This was apparently too much for the NYPD’s Sergeants Benevolent Association, who responded on Twitter with this gem:

 

And cops wonder why the NYPD is, er, unpopular, with the people: they think they are above the law because they have a difficult job.  Accountability and respect are not mutually exclusive, and the NYPD must stop this childish us-vs-them mentality with those who demand the former as a prerequisite to the latter.

It’s not a surprise that this is the #1 most liked reply on the SBA’s tweet:

  

Is It *Really* Impossible To Get A Gun License in NYC? (Part VIII — Appeal to N.Y. High Court)

This is the eighth 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!).


 

Motion for Leave to Appeal to N.Y. Court of AppealsThe U.S. Supreme Court has made pretty clear that a “total ban” on any particular gun right is unconstitutional.  They seem to be pretty clear that it doesn’t matter whether the total ban is only on the carrying of weapons, or on all ownership, or even on certain classes of weapons.  No total bans.

But, what is a “total ban?”  According to the appellate court that denied my appeal last month, “New York’s handgun licensing scheme does not impose any blanket or near-total ban on gun ownership and possession.”  But if an ordinary citizen with no criminal record is denied a license, denied an administrative appeal, denied a court petition, and denied an appeal of that denial, how does that not amount to a total ban for me and for every other ordinary citizen with no criminal record?  What, exactly, would the state have to do to have a “total ban” in the eyes of N.Y. Supreme Court, Appellate Division?

Yesterday I asked the highest court in the state, the N.Y. Court of Appeals, to settle the matter.  The court appears to have passed on pretty much every gun licensing case sent its way since the U.S. Supreme Court declared in 2008 that gun ownership is an individual right that requires no militia membership, and clarified in 2010 that the Second Amendment applies to the states.  The Court of Appeals’ failure to consider the issue in about a decade, after important changes in constitutional law at the federal level, have resulted in a patchwork of decisions from the trial and appellate courts, all of which have invented their own rules.

Appealing to the high court of New York is actually a pleasant experience compared to New York’s intermediate appellate court, which requires 8 copies of every document with special tape binding, a PDF version with digital bookmarks, and a $315 fee, among other weird requirements.  And it’s a daydream compared to the U.S. Supreme Court, which requires 40 copies (!!) of everything, a $300 filing fee, and a garbage bag (really).  The Court of Appeals requires only 7 copies (double-sided ok), a $45 filing fee, and no choice of drawstring or twist-tie.

In the meantime, the federal criminal trials of several officers in the NYPD’s Licensing Division for taking bribes in exchange for gun licenses continues.  One officer has pled guilty and is testifying on behalf of the feds:

David Villanueva, an ex-supervisor in the NYPD’s License Division, said he and other cops — including officers Richard Ochetel and Robert Espinel and Lt. Paul Dean — were on the take for years from so-called gun expeditors.

In exchange, the officers doled out pistol permits like candy — even to people who should not have had them, Villanueva said.

One expeditor, he said, may have had ties to organized crime. Another got help with 100 gun permits over the years — “none” of which should have been approved.

Source: New York Post

Here’s to hoping that while the Court of Appeals clarifies New York law, it also takes up my invitation to end the corruption in the Licensing Division.

Corbett v. City of New York IV – Motion for Leave to Appeal (.pdf)

Flash Factory Pays $10K to Settle Groping Lawsuit

Flash Factory SettlementGoing out on a Friday night shouldn’t involve having a security guard grab you between your legs “for your safety.”  And when nightlife security does it without obtaining the informed consent of each patron before the search, it’s sexual assault.

Now-defunct New York City nightclub Flash Factory learned this lesson the hard way as it agrees to pay out a $10,000 legal settlement to civil rights advocate and yours truly Jonathan Corbett, and co-plaintiff Elise Domyan, on top of a $50,000 default judgment already levied against its security contractor Ward Security Inc., owned by Walter Degolyer of Lake Grove, N.Y.  A motion is pending before New York County Supreme Court to hold Mr. Degolyer personally liable in the 2017 lawsuit.

Ms. Domyan relayed the following to me in response to the case closure:

“Sexual assault happens every day, and it is quite common for survivors to feel like they don’t have any recourse or a chance for justice.  I know that one lawsuit won’t change the world, but maybe it will give nightclub owners and security firms a moment’s pause in the future, or encourage other survivors to pursue legal action against their attackers.”

The settlement and judgment indeed offer strong incentive for bars and clubs to respect the physical autonomy of their patrons.  Hiring an independent security company does not absolve the establishment of liabilitynot in the Court of Yelp, and not in a court of law.  It is unclear why Flash Factory owners Michael Satsky and Brian Gefter closed, and then sold, their establishment late last year, but having a 2 out of 5 rating due to abusive staff, absurd lines for pre-paid ticket-holders, and $18 drinks, probably didn’t help.

As for Ward Security and Mr. Degolyer, who also go by Alpha 1 Security Group, Inc. and “AAA Security,” so far we’ve collected $10,000 from their surety bond, which New York requires from all security companies, and we work to collect the remaining balance through a variety of means available.  (If I were Mr. Degolyer, I’d be getting in touch to work out a settlement of the matter ASAP.)

U.K. “Knife Control” Gone Wild: Stop & Frisk Arrives in London to Confiscate Your Pointy Things

Confiscated Hand Tools
“Oi! You got a permit for those pliers?”  (Yes, this is a real Tweet)

The ordinary citizen, and even most police officers, in the U.K. cannot legally own a gun.  As a result, gun crime is fairly low, yet murder in London has still reached record highs, surpassing New York City, as a result of stabbings.

Their response?  To implement tight “knife control” and start stopping-and-frisking people on the streets to find people carrying around anything pointy.

Police departments all over England are bragging on social media about the “weapons sweeps” they are conducting.  The recoveries have included ordinary scissors, screwdrivers, pliers, a file, and even a butter knife.  When questioned (well, mocked) about the butter knife on Twitter, Hackney Police said, “Thanks for your insightful & original retort. The fact remains, a ‘butter knife’ in the chest will kill as surely as a bayonet.”

Butter Knife
“Oi! You need a loicense to butter that toast!”  (Also a real Tweet)

What’s worse, they’re bragging about what they call “stop-and-search,” their version of the mostly-defunct “stop-and-frisk” that the NYPD used to unconstitutionally search 800,000 people in one year alone, finding weapons less than 2% of times.  The NYPD insisted that the program was responsible for a drop in crime until they were ordered to stop by a federal judge and crime stats in New York continued to improve.

 

It seems difficult to find the rules describing the circumstances under which English police may search an individual on the street, but as far as I can gather — and knowing they have no constitutional amendment against unreasonable search — it’s whenever an officer has reason to be suspicious.  (I welcome corrections if anyone can find an official policy.)  And good Brits will bend over and take it, because as this retired British police officer mused:

We hear the statistics that suggest intelligence led stop and search gets positive results in a third of all cases, but what we don’t know is what happens when an officer decides not to stop and search someone they are suspicious of. Does that person then go on to do something terrible?

No, actually, police are suspicious of everyone, and most will not go on to commit crimes with concealed screwdrivers.

Here in the States, I think there is reform we can do to make it more difficult for people who shouldn’t have a gun to get one.  But today we hear useful idiots like Larry King and retired Supreme Court Justice John Paul Stevens call for a full repeal of the Second Amendment — literally calling for the government to take our guns.

Apparently, that doesn’t stop murder: people are really good at finding ways to kill each other.  The correct solution is to remove the desire, whether motivated by mental illness, religious hatred, or otherwise.  The incorrect solution is what has led the U.K. on a path to tyranny and dry toast.

Is It *Really* Impossible To Get A Gun License in NYC? (Part VII — Corruption? You Can’t Prove It!)

This is the seventh 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).


Appellate Division: Affirmed.Yesterday the Appellate Division of the N.Y. Supreme Court affirmed the lower court’s ruling dismissing my challenge to New York’s corrupt practice of issuing gun licenses only to those whom the NYPD feels have a “good reason” to have a gun — a practice that has resulted in corruption for a century now.  This result is, of course, not surprising: as the landmark case District of Columbia v. Heller, 554 U.S. 570 (2008), approaches its 10 year anniversary, New York courts still petulantly resist the mandate that firearm ownership is a right — not a privilege, and not requiring membership in a “militia” — subject to intermediate scrutiny or higher.

In this case, the Appellate Division has finally used “intermediate scrutiny” by name, which is a slow step towards acceptance of Heller.  Intermediate scrutiny is the lowest level of scrutiny that the U.S. Supreme Court has allowed for gun laws since Heller, and it requires that a regulation be: 1) substantially tailored, 2) to an important government interest.

As should be obvious, that’s a 2-part test, and while the “important government interest” part is easily satisfied (it’s certainly reasonable for the government to want to protect its citizens from gun violence), the Appellate Division has plugged their ears to the second part of the test.  During oral arguments, I specifically asked the judges to require that the most vague, invasive, and irrelevant questions on the gun license application, all of which ask if you have ever done something (e.g., taken a prescription painkiller under doctor supervision) be narrowed by temporal or other boundaries:

Justice Sweeny: “[The disputed questions are] not the be all and end all.  It could very well be the basis for further investigation.  Why is that not relevant?”

Jon: “Right, because they could narrowly tailor it.  They could say, ‘have you used [prescription painkillers] for more than a week?’  Have you done it within the last 5 years?  Any of these things would allow them to more narrowly tailor it.”

[Watch Oral Arguments] [More Details About Oral Arguments]

Their decision, of course, is silent on the matter, stating that the rules “are justified because they serve to promote the government’s” interest without any thought to tailoring.  In affirming the court below, the Appellate Division has made it clear that they refuse to set any boundaries whatsoever on gun license restrictions in this state.

Further, the court continues to ignore the persistent corruption in the NYPD Licensing Division:

“Petitioner has not established that the denial of his application was the result of corruption or other impropriety”

This ignores the fact that my original case in the lower court was dismissed before I had a chance to gather or present any such facts.  I got no period of “discovery” or any other procedure by which I could demand the turning over evidence.  Meanwhile, officers literally in the office where and when I submitted my gun license application have pled guilty to federal corruption charges, admitting they accepted cash in exchange for approval of gun licenses.  Under these circumstances, due process is lacking whether I can prove that my individual case was affected or not.

I look forward to petitioning New York’s highest court, the Court of Appeals, to hear this case.

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