Last week, the New York State Liquor Authority announced a rule that food service establishments licensed to sell alcohol could no longer advertise any music offered during the dining experience, in a rule absurd enough to surely have been drafted by Governor Andrew Cuomo himself. This rule, which also bans tickets or admission charges to food service establishments, is a clear violation of the First Amendment rights of the state’s liquor licensees.
By and large, the food service industry has done its best to comply with each and every rule and request of the Governor and his agencies in order to provide a safe environment for the public. However, the industry has received no financial support from the state, and the cost of complying with rules that change on a near daily basis is destroying the industry. It is predicted that 1 in 3 food service establishments in the state will never reopen as a result. When all establishments are requiring seated table service, limited capacities, and social distancing, announcing the music selection or having a cover charge simply does not contribute to the spread of coronavirus.
I’m pleased to note that I now represent the New York Independent Venue Association and 9 of its members across the state in taking the New York State Liquor Authority to court over the matter. Case No. 20-CV-6870 in the United States District Court for the Southern District of New York.
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.).
This is the thirteenth 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), Part X (Federal Lawsuit Filed), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals).
Total Time Spent So Far: 79 hours
Total Money Spent So Far: $2,296
In July last year, I filed a notice of appeal of the U.S. District Court’s decision that New York City’s gun licensing scheme was constitutionally sound. Federal court appeals are heard by the appellant filing a brief, the appellee filing an opposing brief, and the appellant gets an opportunity to file a reply brief. Often, but not always, oral arguments are heard, wherein the parties get a short period of time (typically, 5 – 15 minutes each) to persuade the judges hearing the case and to answer their questions.
Oral arguments were ordered in this case and heard on June 3rd, 2020. Getting the Second Circuit to overturn longstanding precedent regarding New York gun laws was always a long shot, so I prepared for a somewhat hostile reception. The judges randomly assigned, however, were two Trump appointees and 1 Bush 43 appointee — a favorable selection for a gun rights case. Because of coronavirus, the arguments were telephonic, and a recording is available from the court (.mp3).
Alas, despite the favorable panel selection, the judges apparently had made up their mind before hearing arguments, as they put out a 5-page opinion the next day (.pdf) affirming the judgment of the court below. The judges did not reach the merits of the case (the constitutional issue). Instead, they agreed with the city that because of the way I presented my case in state court, I could not challenge again in federal court.
Let me try to explain. Some cases can be heard in both state and federal court — gun issues are one of them. However, if your case is heard in state court, it generally can only be heard in federal court if the state court doesn’t provide the same type of remedy (in the legal world, we describe this issue using the Latin phrase “res judicata“). Gun license challenges in New York courts (called “Article 78” proceedings) typically only come with the remedy of ordering the issuance of the license or a new administrative hearing, while in federal court I can ask for money for the infringement of my rights. So, I should have been good. The problem is that when I asked for the review of my gun license issue in state court, I also asked them to review their refusal to provide me with records I requested. The federal court held that this type of case allows for money damages also. In other words, if I had filed 2 separate cases — one challenging the gun license denial and the other challenging the records refusal — my case could be re-reviewed in federal court, but since I did both at once, no dice.
As far as I can tell, this is the first case in which such a distinction has been made, and in my opinion creates an unjust result: there should be no penalty for saving the courts time by asking them to hear two matters at once. Needless to say, it leaves my court battle over my 2015 gun license application dead, as although I can appeal to the U.S. Supreme Court, it is highly unlikely that they have interest in hearing such a case.
But, the fight is not over. Stay tuned for Part XIV over the next month or two, in which we explore the contours of New York’s “proper cause” requirement. 🙂
Michele Leuthauser was traveling from Las Vegas-McCarran International Airport last June wearing yoga pants that should have made it quite easy to determine that she was concealing nothing on the lower half of her body. But, because the TSA uses body scanners with a false positive rate somewhere in the range of 20-40% (some studies higher), Michele was flagged for additional screening: a pat-down of her “groin area.”
Unfortunately, a yet-to-be-identified TSA screener used this as an opportunity to violate Michele. While typically body scanner alarms are resolved with a quick and limited (yet still often invasive) pat-down right next to the machine, the screener directed Michele to a “private room.” Screening in a private room is supposed to be an option offered to passengers who feel more comfortable (an option I advise all travelers against taking at all costs), but for Michele it was mandatory.
When doing pat-downs, the TSA has little mats with footprints painted on to indicate to the passenger how to stand. But, the screener told Michele to spread her legs far wider than the mat — an order that seems common for TSA screeners about to inflict abuse. She then proceeded to rub her hand on Michele’s vulva, pressing firmly enough to penetrate her labia with her finger through her leggings, and then continuing to rub her vulva until Michele, in shock, finally recoiled and told the screener to stop.
On Friday, I filed suit on behalf of Michele after TSA supervisors, local police, and TSA’s Office of the Chief Counsel refused to do anything about this incident. While TSA policies (and the Constitution) obviously prohibit checkpoint body cavity searches, no one seems to care when normal screening turns to blatant sexual assault. I look forward to giving TSA incentive to care in the U.S. District Court for the District of Nevada.
So why does once a year or so a new news story gets published with new allegations of checkpoint strip searches?
Perhaps one reason is that the TSA doesn’t think forcing you to expose your genitals counts as a strip search. From their latest filing in the Mengert case:
Here, the TSA attempts to borrow from a case in which police officers, sued for conducting an illegal strip search, argued that they really only conducted a “clothing search” that, incidentally, resulted in the person being searched ending up naked in front of a police officer. Their attempt to try the same justification — essentially that the TSA screeners who violated Mrs. Mengert were not interested in looking at her body; rather, she was just incidentally exposed as they searched her clothes — is a bit curious since the case they cited told the police to pound sand:
“Whether or not the officers set out deliberately to inspect a prisoner’s naked body is not the question; it is, rather, whether the officers did, in fact, perform such a search.”
Wood v. Hancock County Sheriff’s Dept., 354 F.3d 57, 64 (1st Cir. 2003), remanding the case back to the lower court for a jury trial.
I don’t imagine this will go well for them.
If you’re interested in qualified immunity, Bivens liability, and the lengths your government will go to defend blatant misconduct of their employees, the entire motion…
The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be. But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory. I immediately filed suit.
Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”
What is “standing?” The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.” All that means is you have to actually have a specific legal “injury” to complain of. A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes). No standing = no lawsuit.
After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.
Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!” What are the odds? Redacted:
So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.
“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”
Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order. In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it. (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)
I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare. This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons. [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc. Stay tuned for an update next month…]
A year ago yesterday, I filed suit against now-defunct New York nightclub “Flash Factory” and their security firm “Ward Security Inc.” (of New York, no apparent relation to same-name security firms in Florida and England) for an invasive door search policy that involved full-hand grabbing of the genitals of male attendees and inside-the-bra searches for female attendees, all with no advanced warning of the nature of the search. A girlfriend and I were shocked to encounter their “actually worse than TSA” pat-down on the way into a music event in December 2016 and were groped before we had a chance to refuse consent. A search of the Internet showed at least a dozen complaints about this by others and they refused our attempts to try and settle the matter with a policy change, so we took it to the courthouse.
Last week, N.Y. Supreme Court Judge Gerald Lebovits awarded my co-plaintiff and I a default judgment of $50,000 against Ward Security after they refused to show up in court despite repeated service and notice. The order, dated January 11th, 2018 but entered on February 8th, 2018, thanks to the efficiency of the New York court system, further orders that the case continue against Flash Factory itself, which has shown up to court and appears to be using the, “it’s not our fault what our own security did” defense. As I previously posted, this defense simply doesn’t work, even if you call your security “independent contractors” and shut your eyes to what they do. It doubly doesn’t work when you’re on notice that a dozen other people have complained about the same thing.
Our goal is to get these practices to stop, and the only tool at our disposal is a request for money damages, as an order requiring them to stop would require us to show potential future harm to us. But, money damages have the same effect, as once one party gets a judgment, the company knows that if it doesn’t stop, it will have more of the same.
“I’m thankful for this partial victory. It’s good to know that someone is listening to us, but we’re not done fighting by any means. These practices have to change, and venues like Flash Factory need to know that.”
~ Elise Domyan, Co-Plaintiff
A word to the wise: if your business gets sued and has any assets, including accounts receivable (that is, it’s still doing any business whatsoever), ignoring a lawsuit is a bad way to go. New York law allows a process for collection against businesses similar to the garnishment of wages against individuals, whereby I can require Ward Security’s clients to withhold payment for services, but the process against a business requires them to withhold 100% of the pay instead of a fraction as they do in wage garnishment. Security firms are also required to post a surety bond at the time they apply for a license — I’ll be taking that, thank you very much.
This blog began in 2010 to document my lawsuit against the beginning of the TSA’s body scanner program. From that time until 2015, the body scanner was “optional” for all passengers — so long as you didn’t mind being molested by a blue-gloved screener during their “full-body pat-downs.” This was part of the reason that no court has struck down these body scanners as unconstitutional: because, they say, passengers are consenting to use them (even though that “consent” is coerced by offering the alternatives of “let us touch your junk” or “don’t fly”). But, at the end of 2015, the TSA announced that they would reserve the right to refuse to allow these body scanner “opt-outs” at their discretion, and I immediately filed suit.
There are two really interesting issues in this case that I hope may cause a wrinkle for the TSA:
The original body scanner rule in 2010 was issued without “notice-and-comment rulemaking,” a procedure required by Congress whereby agencies that make rules first have to ask the public for input. The U.S. Court of Appeals for the D.C. circuit ruled that the TSA violated this procedure and, although normally that would require them to stop enforcing the rule (i.e., stop using the body scanners), the Court, fearful that the body scanners actually protect us, simply ordered the TSA to take comment after the fact. The new body scanner rule limiting opt-outs was also issued without public comment, and I’ve asked the court to, this time, put some teeth into forcing the TSA to actually follow procedure before issuing a rule.
The TSA is arguing that it needs to be able to force some passengers through the body scanner because, they allege, it is more secure than a full-body pat-down. But, this is objectively untrue. Besides the fact that I proved the scanners to be beatable in 2012, think about this: if one alerts a body scanner, the result is… a pat-down of the area of the body that generated the alert! How could this possibly be more secure than a full-body pat-down that would have touched that area of the body and more? The function of the body scanners is to narrow down those people who do not need to be patted down to save time, not to make a pat-down more secure. Body scanners don’t find weapons — pat-downs do.
This case lives in the U.S. Court of Appeals for the Eleventh Circuit, and the procedure for cases there is a written brief filed by the person filing the case, an opposing brief filed by the other side, and then a reply brief again by the filer, after which the court may rule on the case. Yesterday I submitted my reply brief after nearly a year and a half of delay, and so, the case is now “fully briefed,” meaning the judges can decide it at any point (or can ask for the parties to argue in-person, or can ask for more evidence, or, basically, whatever they want). Realistically, I expect it more likely that they will decide without in-person arguments, probably towards the end of the summer. I’m not holding my breath — the game is rigged, and the TSA gets almost complete control over what evidence the court sees, some of which I don’t even get to see (wouldn’t want the public to see things like how often their testing shows the body scanners miss a weapon, because that would be, well, embarrassing).