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 Jonathan Corbett, Civil Rights Attorney

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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)

Farewell, Andy!

I usually don’t celebrate the downfall of others. So I will keep this exception to my general rule brief.

Governor Cuomo caused the deaths of ~10,000 seniors because he refused to use the USNS Comfort for political reasons, instead sending COVID patients to nursing homes. He set the tone for unnecessary restrictions around the world by declaring that “science” required a food curfew, bans on music, discrimination against other states, and more; the “science” supporting this has still not been released and our economy will feel it for years. And he did all this while being a creep to any woman who crossed his path.

The Governor was a bully and got what he deserved. Some may think he did the best he could with a tough situation. I respectfully but firmly disagree, and today I celebrated his resignation from downtown Denver, where I am representing those injured by United Airlines’ negligence on Flight UA328 earlier this year. It was a pleasant surprise to check my phone after leaving the federal courthouse to learn that it was champagne o’clock!

Best of luck to Kathy Hochul, next in line for the Governor’s Mansion. The systemic problems in Albany are not gone, and she has a lot of work to do.

Class Action Lawsuit Against United Airlines for Flight 328 Disaster

I usually focus my blog (and my law practice) on civil rights issues, but sometimes big corporations can step on human rights just as well as the government. United Airlines is one of those companies, missing no opportunity over the past several years to demonstrate that it simply does not care about anything but profit. From beating up its passengers, to killing the family dog, to refusing to block middle seats throughout the pandemic — all while taking $15 billion in federal coronavirus aid (and demanding $15 billion more) — it almost seemed like every time something went wrong with domestic plane flights, you could count on United to be involved.

So two weeks ago, when a Boeing 777-200 flying from Denver to Honolulu lost chunks of its engine a few minutes after takeoff, treating the passengers to an uncontrolled engine fire and an emergency landing, it wasn’t particularly a surprise to hear that United was the carrier.

A passenger’s view from UA328 on February 20th, 2021.

The ATC recording from the cockpit demonstrates that the plane was piloted by two calm and collected crewmembers, who thankfully were able to land the plane without any serious physical injuries, but were unable to extinguish the fire in-air (despite cutting fuel) and left the 231 passengers on board in fear for their lives for a total of 18 minutes.

Airplane engines don’t simply explode mid-air unless something was done wrong. The NTSB has preliminarily opined that “metal fatigue” caused one of the fan blades to separate (taking a second blade with it) and flew off into the fuselage, possibly further damaging the controls that would have been able to put out the fire. But how would United know that the metal was fatigued? Perhaps because the plane is 25 years old (making it one of the oldest 777s in service in the world), because there are straight-forward tests available to check for metal fatigue (and, early reports show that was last done five years ago), but most importantly, because the plane in question — tail number N772UA — has a sister plane — N773UA — that lost a fan blade for this reason in 2018!

To add insult to injury, the passengers on UA328 were rebooked on a “new plane” to get to their destination, but you won’t need 3 guesses as to which plane United chose: none other than N773UA. You can’t make this up.

It is time United stop playing games with safety. I was retained by a passenger on UA328 and today I filed a class-action lawsuit on behalf of all passengers on the plane who were subject to the intense emotional distress that comes along with watching your airplane on fire for 18 minutes, wondering if you’re going to make it safely to the ground or end up in a fiery crash. No one should have to live through that as a result of an airline’s refusal to take proper care of its planes and its customers, and I look forward to forcing United to make it right as best is possible.

Case is Schnell v. United Airlines, No. 21-CV-683, in the United States District Court for the District of Colorado.

Schnell v. United Airlines – Class Action Complaint (.pdf)

Cuomo Barks Louder for Travel Quarantine, but Health Department Offers “Hearing” to Escape

Almost as if he was a reader of my blog post noting that N.Y. Gov. Cuomo has so far done not a damn thing to enforce his travel quarantine order, yesterday he announced that he’d station police officers at airports to force them to fill out contact tracing forms.

As I considered re-instatement of my lawsuit against the travel quarantine, voluntarily dismissed because of Cuomo’s failure to enforce, I noticed something new in the Health Department’s order: anyone who can demonstrate that they shouldn’t need to be quarantined can request a hearing.

Well, isn’t that fancy?  I, for one, am going to take him up on it, and I encourage everyone who might possibly travel to New York to do the same.  So here’s a quick sample of what a hearing request might look like*:

Quarantine Hearing Request Form

Quarantine Hearing Request (Word Version — fill out details, then print & mail)

Quarantine Hearing Request (PDF Version — print, hand-write details, & mail)

 

 

Enjoy!

 

* This form is a sample document preparation.  It is not legal advice; legal advice can only be provided by a licensed attorney who has reviewed your particular circumstances.  No attorney-client relationship is created by your downloading or use of these documents.  Please do not e-mail me questions about use of this form; I would only be able to respond if and when I agree to be retained to assist with your case.

Cuomo Takes No Steps to Enforce Travel Quarantine; Lawsuit Voluntarily Dismissed

NY Traveler Information Form
New York produced these forms for travelers to provide the details necessary to (try to) enforce the Governor’s travel quarantine.

At the end of last month, I had asked a federal court to issue a temporary restraining order against Cuomo’s enforcement of the 14-day travel quarantine currently in effect on those coming to New York from 19 different states, on the simple premise that you can’t protect an area that is already broadly infected (as the entire state of New York is) by use of a quarantine.  A judge refused to issue the order last week, ruling that while the quarantine burdened my right to travel, it was my job to overcome the government’s showing that they had “considered” other options and felt the quarantine was necessary.  In their opposition to my motion, New York presented not a single model, not a single health organization’s (or even a single doctor’s) opinion that a quarantine is necessary in this situation, and not even a prediction of how many cases this would likely prevent.  It seems to me that when the government wants to take our liberty, it should be their job to demonstrate the need to do so, but motions for temporary restraining orders are quite discretionary and unappealable.  That said, the case was free to continue without the temporary relief — although by the time it would be decided, the quarantine would very likely be over.

I’ve decided not to continue this court fight for that reason and because it seems clear to me that the Governor has no intent to actually enforce this quarantine.  To that point, first, last night I flew LAX to JFK, which means I was directly incoming from a state that Cuomo announced had coronavirus statistics that were so high that incoming travelers must self-quarantine for 14 days.  However, no attempt was made to compel the production of any data that would allow the enforcement of the quarantine: although the government had produced a poorly-designed form to collect information, no one was even trying to force travelers to fill it out…

Form Kiosk
However, no one was making any attempt to compel travelers to fill out the forms, and if you didn’t check a bag, you probably wouldn’t have even seen it.

There was merely a table by the baggage claim, with a Health Department employee sitting on his laptop paying no attention, offering the form up to travelers.  No person sought to inform travelers to fill out the form, and there were not even ropes to guide travelers past the kiosk.  While a handful of travelers stopped and fellated the Governor’s ego, the remainder either didn’t see it or, like me, saw it and walked right past.

Second, in the days after the quarantine was announced, the state made clear that “essential workers” are exempt from the quarantine.  That is, if you work for any essential business, you’re free to go on vacation to Miami, Los Angeles, Barcelona, Rome, or Wuhan, China, and then come back to work without the need to quarantine.  This means if you are a waitress, a bartender, a dog walker, a janitor, a gas station attendant, a mechanic, a bank teller, a federal government employee, a transportation employee, work in a medical field, or one of several dozen other jobs, you’re exempt.  By my calculation, this is more than half of the workforce that is exempt.  And if you’re not yet exempt, find someone in New York that will let you walk their dog and you will be.

I’ve not changed my mind that the Governor’s quarantine is wrong and unconstitutional.  But given that it seems to be mere bloviation from Cuomo with no teeth at all, it is not worth spending 40 – 100 hours over the next 18+ months fighting.  So today I file a notice of voluntary dismissal.  Such dismissals are “without prejudice,” meaning I can bring the case back later if I’d like, and I’ll keep an eye on the situation.  That said, if anyone is actually fined or detained because of the quarantine, I would be most eager to speak with them about their case.

N.Y. Gov. Cuomo Doubles-Down on Quarantine, Expands to Half the Country

On June 24th, New York Governor Andrew Cuomo announced a mandatory 14-day quarantine, under penalty of forcible quarantine and large fines, for anyone entering the state from any of 9 “coronavirus hotspot” states.  As you cannot protect a population that is already broadly infected by “quarantine,” I immediately filed suit against this irrational and unconstitutional restriction on our right to travel between the states.

A hearing is scheduled for Thursday at 2 PM on my motion for an emergency temporary restraining order in front of U.S. District Judge Lorna Schofield in the Southern District of New York.  But in the meantime, the Governor has doubled-down by expanding his list to a total of 16 states:

Cuomo Doubles Down
Cuomo Doubles Down — Current Quarantined State List:
AL, AR, AZ, CA, FL, GA, IA, ID, LA, MS, NC, NV, SC, TN, TX, UT.

This list, including the 1st, 2nd, and 3rd most populated states, includes about half the population of the country.

I look forward to seeing Cuomo’s people in court on Thursday.  In the meantime, I’ve filed an amended complaint adding details and challenging the allegedly mandatory form that travelers must fill out when crossing the border (see Exhibit B for that one)…

Corbett v. Cuomo – Complaint (First Amended) (.pdf)

Corbett v. Cuomo – Complaint (First Amended), Ex. A (executive order, .pdf)

Corbett v. Cuomo – Complaint (First Amended), Ex. B (incoming traveler form, .pdf)

Lawsuit Asks Court to “PAUSE” N.Y. Gov. Cuomo’s Travel Quarantine Order

Cuomo Quarantine Press Conference
Cuomo, along with the governors of New Jersey and Connecticut, announce their plans to violate the constitutional right to travel of those entering the states they govern.

This morning, I filed suit against New York Governor Andrew M. Cuomo in regards to the “quarantine” he and two neighboring governors announced yesterday.  This particular quarantine requires anyone incoming to the state who has been to states that the governors find have unacceptably high rates of coronavirus to self-quarantine for 14 days.  Failure to self-quarantine results in forcible quarantine and a massive bill.

New York, perhaps because of the population density of New York City and its reliance on public transportation, was hit almost first and by far the hardest of the states by the coronavirus pandemic.  Since April 7th, however, the state has seen a steady and consistent decline from 799 deaths in a day to 27 a couple days ago.  That said, there are still about 600 new infections confirmed in the state daily, and the best numbers I can crunch suggest that tens of thousands of New Yorkers currently have an active coronavirus infection, whether diagnosed or not.

In this context, it is shocking to me that anyone would propose a quarantine to keep the virus out of New York.  If anything, there are probably places that should be quarantining us (and, many countries are indeed not accepting American tourists right now).  The cat is out of the bag, and coronavirus, although substantially reduced from the peak, can be found in every village, town, and city in the state.  An infected traveler from out-of-state simply cannot affect the statistics when we have tens of thousands of people in the state already who are currently shedding the virus.

This reeks of a political stunt.  Whether it’s retribution for other states imposing travel restrictions on New Yorkers, or a middle finger to Trump for encouraging states to re-open, or an attempt to appear “tough on corona” to voters, I don’t know and don’t care.  What is clear is that this step cannot deliver any public health benefit, but will certainly cause substantial interference with our constitutional right to travel.

“We have a constitutional right to travel?”  Indeed.  Like the right to an abortion or to get married, the right to travel appears in the U.S. Constitution not in explicit words but in the due process clause of the Fifth and Fourteenth Amendments.  Due process involves not only the right to a trial and so forth (“procedural due process”) but also a right to be free from infringements on our liberty absent a good reason (“substantive due process”).  The standard for whether a public health concern is a good enough reason comes from over 100 years ago when a state made smallpox vaccination mandatory and ended up on the receiving end of a lawsuit.  That case, Jacobson v. Massachusetts, 197 U.S. 11
(1905), required a “real or substantial relation” between the health concern and the government’s restriction.  “Real or substantial” is more than just rational, or plausible, but rather courts have required the government to actually explain how A leads to B, and often to consider less invasive means.  (Speaking of, there are obvious alternatives: for example, allowing people to escape quarantine by getting tested, or simply checking body temperature of people flying in.)

My lawsuit, filed in the United States District Court for the Southern District of New York, comes along with a motion for an emergency temporary restraining order.  I shall leave you with the conclusion:

The Governor is free to come before the Court at any time with evidence to show that the challenged order is actually necessary to protect the public health. After all, the state should already be in possession of such evidence before issuing an order as drastic as the one challenged. If and when such evidence is provided, the Court may immediately lift the TRO. Until that time, the government should be ordered to “PAUSE” itself.

Is this motion likely to be successful?  Well, I fight the hard cases, and this is a fight worth fighting.  We’ll leave it to the Court to determine whether the fight wins the day.

Case is Jonathan Corbett v. Andrew M. Cuomo, 20-CV-4864 (S.D.N.Y.).

Corbett v. Cuomo – Complaint (.pdf)

Corbett v. Cuomo – Motion for Emergency Temporary Restraining Order (.pdf)

 

 

TSA Strip Searches Grandmother on Mother’s Day Over Feminine Hygiene Product, Gets Sued

Mengert ComplaintIt’s hard to imagine a more appropriate case for my first lawsuit as an attorney than that of Rhonda Mengert.  Mrs. Mengert hugged her grandchildren goodbye after a Mother’s Day visit last month in Tulsa, Okla., and given that she is a frequent flyer for work and has PreCheck status, expected an uneventful security search.

Instead, two screeners at Tulsa International Airport decided to humiliate her.  While patting down Mengert, a screener felt a pantyliner through her clothing.  The standard procedure in this instance is to complete the pat-down, including the test for explosive residue on the screener’s gloves, and send the passenger on her way.  For reasons still unknown to any of us, the screener instead called for a colleague and directed Mengert to enter a “private screening area” with them.  (As a side note, I have always told my friends and readers: never go into a private screening area with the TSA.  Miss your flight.  Let them threaten you.  Just don’t do it.)

Once in the private room, the screeners told Mengert that they needed to “clear the area” (“the area” being her underwear).  After being asked how they would like to do that, the screeners directed Mengert to take down her pants and underwear down to her knees to show them the pad.  Mengert was made to feel that she had no choice and complied.  Having been forced to expose herself, Mengert had to ask four times before she was finally allowed to leave.

The TSA publicly states that “TSA does not include strip searches in its protocols.”  But given that they were accused of doing basically the same thing to another woman last year, and seem to have a thing for strip searching older women, it seems the screeners and lower management have not gotten the message.

Mrs. Mengert retained me as counsel and last night I filed suit on her behalf against the TSA and the two screeners who inexplicably decided to break TSA policy and violate a woman, for being a woman, on Mother’s Day.  The lawsuit, filed in U.S. District Court for the Northern District of Oklahoma, seeks injunctive and monetary relief.  We hope this will be message received.

Mengert v. TSA – Complaint (.pdf)

If you know anyone who has been violated in a similar way, please contact me: corbettrights.com.

Update: New Zealand Now Bans Shooter’s Manifesto, 14 Years’ Prison for Sharing

Cover of NZ Shooter's Manifesto
Possessing this in New Zealand can get you locked up for a decade!

Last week I wrote a brief blog post about New Zealand’s attempt to criminalize a video taken of the infamous Christchurch mosque shooting, leveling penalties of up to 10 years in prison for possession and 14 years for sharing it.  New Zealand, apparently, has a “Chief Censor’s Office” that gets to make decisions about what its residents may and may not see.

Today, the Chief Censor has doubled-down, now banning a document published by the shooter explaining his reasons for killing 50 Muslims as they prayed

The banned manifesto of the shooter, whose name I don’t really care to spread, clearly lays out the motivation behind this act of terrorism. The tl;dr version is that the shooter is a self-admitted racist who believes that non-white immigrants will take over “white countries” because of the combination of unchecked immigration and declining birth rates among white people.  In other words, this man is a white supremacist.

There are really two ways to address terrorism: 1) to take away the means, and 2) to address the root cause.  New Zealand, as many countries, has decided to go exclusively with the former, banning all semi-automatic weapons in a country where guns were already quite regulated.  But terrorists always find a means to accomplish their goals, whether with homemade bombs, speeding trucks, hijacked airplanes, or otherwise.

New Zealand’s approach not only fails to try to remedy underlying causes, but actually prevents its residents from gaining any insight into the same by hiding a primary source that reveals the motivation in detail.  At the same time, they place an authoritarian boot on the free speech rights (let alone gun rights) of their people with little benefit as future terrorists accomplish their goals via different means.

We can’t defeat terror by ignoring what motivated the terrorist.  Without my personal support for any of the ideas expressed therein, here’s the manifesto (.pdf).  Don’t click if you’re in New Zealand — that will be 10 years.

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