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.)
This blog is really, really not a political blog. I’m a civil rights advocate, not a partisan.
However, the President today took two steps that cross a line from “politics I may not like” into “authoritarian behavior we should not tolerate.”
First, Trump demanded, and obtained, the “resignation” of U.S. Attorney General Jeff Sessions. A.G. Sessions was a regressive who struggled to concede that heroin was more dangerous than marijuana, and no one on either side of the aisle would be sad to see him go but for the obvious reason for the firing: Sessions had recused himself from the Mueller investigation into Russian interference in the 2016 presidential election instead of shutting down the investigation as Trump wanted. This crosses the line because a president must not interfere with law enforcement investigations, especially when his own staffers are the subject of those investigations (several of which have already plead, or been found, guilty of felonies). I couldn’t care less if you think the Mueller investigation is a “witch hunt:” allowing an official to stop investigations into his own people is flatly fascist regardless of whether the investigation turns out to show no misconduct. If Mr. Trump has nothing to hide, then there is no reason to obstruct this investigation.
Second, this evening Trump revoked the clearance of CNN’s White House Correspondent, Jim Acosta, resulting in the veteran reporter being unable to step foot on White House property. The justification given by the Trump administration is that he “assaulted” a woman during a press conference. Take 20 seconds to watch this alleged assault:
A White House intern attempted to take a microphone from Acosta, reaching over and grabbing at him, and Acosta’s arm grazed hers in the process. It is clear that Acosta committed no “assault,” but rather that Trump was upset at Acosta’s line of questioning and thus ordered him removed. The only assault here was Trump’s upon the press and upon the First Amendment, and for this, and for blatantly lying to the American public about what happened, Trump has also crossed a line.
Today, protests will occur across the country focused on Trump’s attempt to obstruct the Mueller investigation. You may find your local event here. Whether you vote Red, Blue, or are colorblind, ask yourself if the above is ok, and if not, step outside and let the White House know.
It’s been a slow fall here at the Professional Troublemaker blog, as I prepare to finish law school in just 2 more weeks. There haven’t been any substantial updates on any of my lawsuits since the summer, as they work their way through the courts.
But, today I got a letter from the U.S. Patent & Trademark Office indicating that they’ve completed the registration of a trademark for “Professional Troublemaker.” Near the beginning of the year, I sent in an application, largely as a way to get some experience with trademark law. Filing trademarks can now be done entirely online and registration of a simple mark comes with a fairly reasonable $225 fee, so long as you complete the process without any paper filings.
I’m not sure I got too much useful experience or learned a whole lot from the process — I spent half an hour submitting online forms, gave them the filing fee, waited about 8 months, and got my mark with no hassle — but it’s always interesting to me to see how another area of law works.
So, watch out, imposter troublemakers: the name is mine!