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*:
* 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.
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…
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.
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:
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)…
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.).
It’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.
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.
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.
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.
The mosque attack in Christchurch, New Zealand shocked the world a few days ago with approximately 50 killed by a white supremacist who, in brief, explained that he considered Muslim immigrants to be invaders. As part of his attack, he shared a livestream of the carnage, which has been re-posted around the Internet literally millions of times.
Because using tragedies to strengthen the government’s authority over its people is the thing to do in such situations, New Zealand has begun a crackdown not just on guns (already heavily regulated) but also free speech. According to local police, who arrested a 22 year old citizen for one of the millions of shares of the video, “[t]he live stream video of the shootings in Christchurch has been classified by the Chief Censor’s Office as objectionable.” The penalty for anyone who “knowingly makes or knowingly trades, distributes, or displays an objectionable publication via the Internet” is apparently up to 14 years in prison.
As an American, I get upset whenever my countrymen call to ban “hate speech,” to limit access to Internet and financial infrastructure to Web sites that have extreme views, or to demand that social media companies decide what is and is not “fake news” and remove such content. Many of us do not know how privileged we are to not have a “chief censor” who can drag us out of our home for sharing something deemed to be too violent or otherwise “objectionable.”
“But why do we need to share such despicable acts?” Because to outlaw doing so would be to hide reality. To insulate us from the horrors of the world, as if it makes those horrors go away. I’ve not seen the video nor do I have any desire to see it, but for the millions who chose to watch, they have a right to see the world as it is, and in doing so have allowed us all to have more confidence that we’re not being spoon-fed bullshit propaganda by a government “censor.” Just as we should not allow China to hide the atrocities of Tiananmen Square, nor should we allow our own government to hide the gruesome photos of Vietnam, Waco, Abu Ghriab, etc., New Zealand is doing a service to no one by protecting its citizens from reality.
The stopping of random drivers to check for sobriety without cause is a search that barely meets constitutional muster. In 1990, the U.S Supreme Court ruled in a 6-3 split decision that sobriety checkpoints are legal (Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)), but part of its decision considered that drivers were free to avoid those checkpoints by making a u-turn. About a dozen states have outlawed the practice.
If a part of the constitutionality of a search depends on one’s ability to avoid it (just like the “if you don’t like it, just don’t fly” argument in favor of TSA nonsense), then a means for obtaining knowledge of an impending search is necessary. Subsequent cases have made clear that citizens have the right to warn others of police activity: for example, judges in Florida, Kansas, and others have ruled that there is a constitutional right to flash headlights to warn other drivers of speed traps.
Yet, New York police have always had a thing for arresting citizens for “interfering” with them verbally, despite New York law (and possibly the Constitution, absent some pretty compelling circumstances) quite clearly stating that such a charge requires physical interference, intimidation, or interference with telecommunications systems (case ruling against the police when interference is non-physical, listing other cases where police lost the same arguments time and time again). It’s therefore no surprise that an NYPD attorney sent a cease-and-desist letter to Waze, the driving directions app that allows you to flag checkpoints:
Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving. Revealing the location of checkpoints puts those drivers, their passengers, and the general public at risk.
Irresponsible? Maybe criminal? Given that the Supreme Court has, to date, not allowed secret checkpoints. that seems far-fetched.
The letter was written by Ann Prunty, who lists herself as “Acting Deputy Commissioner, Legal Matters.” A review of State Bar records shows that she is a licensed attorney, which means she has the duty to avoid sending out letters like this without a good-faith basis for her assertions.
Of course, Ms. Prunty declined to respond to my request for clarification. I’ll take that as an indication that she’s full of shit.
One silver lining: if the police do actually arrest someone for using Waze, this letter makes not just the individual officer, but the City itself, liable for the false arrest, since it’s now the official policy (“pattern or practice,” if you will) of the government. Perhaps Ms. Prunty should think before she speaks and puts the taxpayer’s dollars on the line.
I feel for government employees that are going through tough times right now because we have a President who acts like a child. (“Let’s get our way on border security by crippling our government, including those who secure the border!”). The shutdown should be ended and no wall should be funded.
But if there were actually terrorists about to strike our nation but for the TSA, they’d have done so. It’s almost like the whole premise behind the need for the TSA is manufactured to take our rights and our tax dollars with no proportional benefit to our safety.
(No updates on any of my court cases. No idea if they’re even being considered during the shutdown.)