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 Jonathan Corbett, Civil Rights Attorney

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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.

Is It *Really* Impossible To Get A Gun License in NYC? (Part VI — N.Y. Appeals Court Not Interested in Ending NYPD Corruption)

This is the sixth 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).


 

Courtroom at N.Y. Appellate Division, First Department
This is seriously the courtroom. Budget for stained glass dome? Yep. Budget to notify litigants when their cases are scheduled for oral arguments? Eh, that sounds pricey.

A few weeks ago, I checked the calendar of the N.Y. Appellate Division, First Department, and noticed my gun licensing case — challenging the constitutionality of allowing the NYPD to decline licenses for failing to provide a “good reason” to grant them amid a plague of cash-for-licenses corruption scandals — was scheduled for oral arguments.  In any other court, I’d have received an e-mail or a letter noting the request for my presence, but apparently the First Department doesn’t roll that way.

Oral arguments in appeals are a fun exercise.  Appeals are 95% done in writing (“briefs”), and oral arguments are usually at the discretion of the court.  By the time oral arguments, if granted, come around, both sides have had their full say on paper.  And, in theory you come prepared with an argument, but about 15 seconds after you open your mouth in front of the group of judges looking down on you, you’ll hear, “Counselor, …” followed by continuous questions for the rest of your allotted time.  And, these questions are no softballs: they almost exclusively ask you about the parts of your brief that they feel were, well, less than convincing.

So, while it is a surprise that the court has the technical capacity to live stream the arguments, it’s no surprise that they didn’t go easy on me.  But one thing I did find a bit unusual: the judges had no interest in hearing the corruption aspect of the case:

Jon: I’m asking for two things in this case: number one, for the court to end a 100-year tradition of corruption in the NYPD licensing division…

Justice Gesmer: I don’t see how that issue is before us.

Jon: Your Honor, the issue was thoroughly briefed.  Essentially…

Justice Gesmer: Well I understand it’s briefed, but there’s no factual record before us.

There’s no “factual record” — that is, evidence presented in the lower court — at all, because the lower court dismissed my petition before any fact gathering could take place.  The record from the court below is literally just the City’s motion to dismiss, my opposition to that, and the rubber-stamping of that motion in one of the most poorly written opinions I’ve personally had issued against me in nearly a decade of litigating civil rights issues.

The correct decision for the Appellate Division would be to remand my case to the lower court to develop that factual record.  I’ve properly alleged a denial of due process (an official who takes bribes clearly cannot adjudicate fairly), and I should be entitled to prove it, via a period of discovery where I can depose the officers of the licensing division.  But realistically, I don’t expect any relief from this court.  The decision from this court may take a couple of months, and then in all probability it’s on to New York’s highest court, the Court of Appeals.

NYPD Upset That They Will Have Fewer “Get Out of Jail Free” Cards to Give to Family in 2018

Many years ago, I was hanging out with a police officer friend of mine at a bar.  One of her police friends said he was about to drive home, and I asked if he was good to drive.  He chuckled a bit and said, “Of course, what are they going to do, arrest me?”  He then left the bar, far more intoxicated than I would prefer to be behind the wheel, and presumably drove home.

He was right, of course: assuming he didn’t get into an accident thus forcing a report to be made, while you may be shocked by his attitude, you probably know that police officers will not cite or arrest each other for pretty much anything that doesn’t have a complaining civilian witness, and sometimes not even then.  This “professional courtesy” is also often extended to their families by providing the family member business cards with little notes on them.  Having such a card is not a license to kill, but it is probably going to get you out of a minor speeding ticket.

It takes special audacity, however, to be the largest police union in the country and to take this to the next level by printing up plastic credit-card like “get out of jail free” cards, and giving each officer 32 of these cards every year.  It takes even more audacity to complain to the media when the union reduces that number down to 20:

“They are treating active members like shit, and retired members even worse than shit,” griped an NYPD cop who retired on disability. “All the cops I spoke to were . . . very disappointed they couldn’t hand them out as Christmas gifts.”

A few points.

First, it’s clear that these cards are expected to grant special privileges upon the holder, to wit: that they will receive leniency upon being stopped for committing a crime.  Otherwise, they’d make pretty lousy gifts.  “Oh, thanks, Dad, a 2018 edition of a worthless card from your former employer!”  Of course not.

Second, this is corruption.  It’s not major, “let’s get a law passed in exchange for cash” corruption.  But all are entitled to be treated equally under the law, and if some are treated “more equally than others,” we end up with nonsense like NYC’s gun licensing scheme, where for a full century, anyone from literal mobsters to random rich people are entitled to their Second Amendment rights where the people as a whole are not.

NYPD Get Out of Jail Free Card
Yes, seriously.

Third, the reason cops want 32 of these cards is not because they have 32 family members to give them to, but because they are literally selling them on eBay.  For a $50 donation to your local corrupt cop, you too can have a get-out-of-jail-free card.  For a bit more, you can get one signed by an actual cop.

It’s a problem that it’s long time we address, and the first step in fixing that problem is treating this like the corruption that it is.  NYPD rank-and-file cops simply see this as a perk of the job — as “professional courtesy.”  But there’s nothing courteous about it to the general public, who is deprived of the public safety benefit they are paying for when people think they no longer have to follow the law.  Police officers and their family should be setting the example when it comes to lawfulness — not seeking to be above the law.

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