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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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Is It *Really* Impossible To Get A Gun License in NYC? (Part III — NYPD Sued Over Requirement that License Applications Give “Good Reason”)

nysupremecourt
New York County Supreme Court

Over the last year I’ve documented the process of applying for a license to carry a handgun in New York City.  Part I described the initial application process, requiring an incredible amount of paperwork, money, and time, and the scheduling of an in-person interview.  Part II described the interview, as well as the eventual “NOTICE OF DISAPPROVAL” that ended up at my door, letting me know that there was no problem with my background, but I simply did not give a good enough “reason” for them to allow me to exercise my Second Amendment rights.

For Part III, I’m pleased to announce that I’ve taken up the fight in court with a lawsuit challenging the constitutionality of the City of New York’s interpretation of state laws that effectively allow the NYPD to deny a license whenever it wants.  I’ve additionally challenged the NYPD’s refusal to fulfill a Freedom of Information Law request, as well as 3 of the most absurd questions on the application form.

Beginning where we left off in Part II, after receiving the rejection letter, I filed an appeal with the NYPD itself, asking them to reconsider the decision of the commanding officer of the licensing division, Deputy Inspector Michael Endall, to deny my license.  I should really say the former commanding officer of the licensing division — about 2 weeks after he signed my rejection letter, he was removed from his post after a federal investigation uncovered that his subordinates were accepting bribes in exchange for approving gun license applications.  At least one officer under D.I. Endall’s command has so far pled guilty to corruption charges, and another will face trial shortly.

Departmental drama aside, as you can guess, I received a reply to my administrative appeal by Director of Licensing Division Thomas M. Prasso telling me to pound sand.  As best I can gather, the division has an officer head and a civilian head, and D.I. Endall was the former while Mr. Prasso was the latter.  This letter sets the clock ticking for a state court challenge, giving me 4 months to file what New York calls an “Article 78 Petition,” so named after the section of the law that allows people to challenge the final decisions of administrative agencies, so long as they do so within 4 months.  (Note that I could file in federal court directly, since my federal constitutional rights are in play, but let’s give the state a chance to correct itself first.)

Corbett v. City of New York IV – Petition & Complaint (.pdf), Case No. 158273/2016

There are 3 separate challenges within this lawsuit:

  1. First and foremost, NY Penal Law § 400.00(2)(f)  specifies that a license should be issued when an applicant shows “proper cause.”  The City of New York (as well as Westchester County, FWIW) interprets this to mean “a good reason that we approve of” rather than “filled out an application and is not disqualified.”  In particular, the city requires that applicants show a greater need than that of the general public (!!), so “I want to defend myself” is not good enough while “I want to defend myself because I regularly carry around bags of diamonds” probably is.  Virtually all of the rest of the state interprets this the other way, granting licenses to individuals who are U.S. Citizens with clean criminal records.  The “proper cause” requirement, as interpreted by New York City, is not only unconstitutional (imagine having to convince the government that you had “proper cause” to speak freely, practice your religion, say “no” to a search without a warrant, etc.), it leads to decisions that are arbitrary at best, and influenced by corruption as we’ve seen above at worst.
  2. Second, I challenged 3 questions in particular.  These three questions ask if you’ve ever been fired from a job, ever used painkillers or sedatives (under a doctor’s orders during/after surgery counts), and if you’ve ever testified under oath anywhere in the country.  Saying “yes” to any of these questions extends the application process, requiring you to explain yourself.  These three questions are highly invasive, not protected by, e.g, HIPAA confidentiality requirements, not evaluated by any professional qualified to do so (there are certainly no doctors in the NYPD Licensing Division qualified to say if your prescription regimen would make you unfit to have a gun), and are generally irrelevant for any purpose other than giving the NYPD an excuse — not a reason — to deny the license applications of good, qualified citizens.
  3. Third, after my application was denied, I sent the NYPD a Freedom of Information Law request (Exhibit C of the petition above), asking for every application for a gun license in a 3 month period with all personally identifying information redacted.  My intent here was to see whether the NYPD was consistent when considering applications or was granting preference to VIPs.  The NYPD said that they would not fulfill my request because doing so would be invasive to privacy and would interfere with law enforcement (Exhibit D of the petition).  How releasing these records could possibly do either of those things is a mystery to me, and therefore I’ve asked the court to review it.

I’m hopeful that this petition may push the NYPD to a more reasonable licensing scheme.  Despite people telling me that the NYPD’s rules are challenged all the time, I wasn’t able to find a challenge to the “proper cause” requirement in this state in the last 5 years, and never has the proper cause requirement been challenged in the context of the state’s ban on open carry + the Supreme Court’s decision that the right to bear arms is applicable to individuals and assertable against the states.  Whether you think we need more or fewer guns in this country, I hope you’ll agree that the licensing scheme should at least be fair, and to that extent support my reform against the NYPD’s “licenses only if we want to give them” scheme.

 


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NYPD Cops on Reddit: OK to “Get A Few Punches” While Arresting Suspects

cops_think_beating_is_ok_highlighted
NYPD cops share their feelings on getting a couple extra punches on suspects who resist arrest…

Massive discussion forum Reddit‘s subforum for New York City-themed topics, /r/nyc, has a lively and diverse cross-section of New York’s population, with everyone from NYU students, retirees, young professionals, and even police officers.  I find the insight one can gain from seeing all these different points of view to be incredibly educational, and sometimes people are, perhaps, a little more candid than they should be.

 

This morning, one of the top threads on /r/nyc was a NYPD cop caught on camera punching and kneeing a suspect in the back of the head while he was on the ground during an arrest (original link, archive).  A cop on the forum, /u/Fast05GT, was quick to defend the actions of the officers, and while starting with a reasonable-sounding explanation that they were dealing with a suspect accused of violent crime who was resisting arrest, he continued to expose that police officers feel entitled to get a little retaliation, seemingly without knowledge that this is wrong:

“You guys are crazy if you think I’m gonna let some extremely violent felon kick my ass and not get a few punches of my own in.”

Another NYPD officer, /u/Mac8831, quickly clarifies:

“The fact is, punching and kicking this shit head is perfectly fine until he’s in custody.”

A read through the thread is filled with these and other gems (“Those cops did nothing wrong. ‘pain compliance’ is taught in the Police Academy, punching and kicking are 100% proper tactical procedures…”) and makes blatantly apparent that these officers do actually think that their conduct — getting in a few extra hits than is actually necessary to restrain a suspect — is perfectly acceptable.

The problem in the NYPD is not merely a few bad apples, but rather than every apple is exposed to systemic and cultural ideologies that condone tactics that are simply not allowed anywhere in our country, whether it’s stopping-and-frisking black people simply for existing, arresting for contempt-of-cop, or excessive force.  Let’s hope the addition of body cameras coming soon brings this issue to light and helps us stamp it out.


Civil rights advocacy is expensive!  Want to contribute to the fight against police abuse, TSA assholery, and other civil rights issues? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

 

Is It *Really* Impossible To Get A Gun License in NYC? (Part II)

disapproval
Not so fast, Mr. Corbett…

In March I wrote Part I of my journey to see if the rumors are true that it’s impossible for the average citizen to get a license to carry a handgun in New York City.  Part I described the application, $430 filing fee, and then the follow-up where the City asked for more than 2 dozen additional pieces of documentation, all of which I provided but could not seem to get in touch with the NYPD officer assigned to investigate my application.

Well, just a day after posting and sharing on Twitter with a tag to NYPD’s official @NYPDnews account, which spiked traffic to the blog on the order of several thousands of viewers, I suddenly got an e-mail from the licensing officer saying that he noticed we had difficulty reaching each other and scheduling an interview.   I’ll never know if making it public was what did it, but I suspect it may have helped.  (BTW, if you don’t yet follow me on Twitter, add me!)

I met with Officer Barberio, who was a friendly guy and took only a few minutes of my time to tell me that my background was clear but my “reason” for wanting a license probably wouldn’t make it past the higher-ups that would have a look at the application.  You see, New York law requires people who want to exercise their right to bear arms to give a reason.  The reason can be self-defense, but the applicant, apparently, must show a need for self-defense greater than the average citizen.  Gun licenses in New York are issued by county, and many counties apparently are lenient on this requirement, but not those comprising New York city.

Officer Barberio also clarified a few anomalies regarding the paperwork.  He explained that despite the forms available from the NYPD stating that one must have a business reason for applying to carry a handgun, you can ignore that part and state a personal reason.  He explained that the requirement to have your roommate’s consent, if you live with someone else, isn’t a bar to getting a license, but would result in them interviewing your roommate.  And, he explained that reference letters are no longer required, even though his form letter to me weeks prior insisted that they are.

About 3 weeks later, a letter appears from the NYPD.  Its title was “NOTICE OF DISAPPROVAL,” and explained the NYPD’s position regarding the requirement of showing a need.  The letter cited Kachalsky v. Cacace, by which it really meant Kachalsky v. County. of Westchester, 701 F.3d 81 (2d Cir. 2012), wherein the U.S. Court of Appeals for the Second Circuit upheld the provision of New York law that allowed the state to demand a “reason.”

The only problem?  In the meantime, two other circuits of the Court of Appeals have ruled otherwise.   Middle America got its decision in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012, Posner, J.) and the west coast got it in Peruta v. San Diego, 742 F.3d 1144 (9th Cir. 2014).  Peruta is pending an en banc (larger set of judges) review that should be (re-)decided any day now.  I shall wait for that decision before I file suit, and in the meantime have filed an administrative appeal with the NYPD.

Stay tuned for Part III this summer… 🙂


Fighting for civil rights in court is expensive!  Want to contribute to the fight against government assholery? Donate via PayPal, Venmo, Chace QuickPay, Bitcoin, or check

Federal Magistrate: White People Not Protected Against Discrimination Under Civil Rights Act

My first suit against the NYPD, for stopping & frisking me for being a white guy in a black neighborhood has a motion for summary judgment pending, filed by the city. A motion for summary judgment filed by the defense means basically “under the undisputed facts we know so far, no reasonable jury could find us liable, so please dismiss this action without a trial.” When complicated motions are filed in federal court, typically the U.S. District Judge will have a magistrate judge (basically, an assistant judge) read through it and write up a report on whether or not the motion should be granted. The parties have a chance to explain to the district judge why the magistrate is wrong, if they’d like, before the district judge makes a ruling.

The biggest sticking point in this case is that the city “can’t find” the cops who stopped & frisked me. The magistrate judge recommended that the motion be granted and my case be tossed because — get this — no “reasonable jury [could conclude] that police officers were involved in the alleged stop.” In other words, a jury might believe my story entirely, but since I didn’t get badge numbers and the city “can’t identify” the cops, a reasonable jury would have to find that these people — who stopped me, identified themselves as police, detained me, and searched me — were probably just random troublemakers, not real police. We’ve all heard of the stories of random, non-police groups of men stopping & frisking the citizens just for kicks, right?

But, that’s not even the most absurd part of the report produced by U.S. Magistrate Judge Vera M. Scanlon. Part of my complaint that the judge was analyzing alleged a violation of 42 U.S.C. § 1981, which prohibits racial discrimination: “All persons within the jurisdiction of the United States shall have … equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” In combination with the Fourteenth Amendment to the U.S. Constitution, which guarantees equal protection to all persons regardless of race, this law must either be interpreted a) to protect white persons the same as racial minorities, or b) as unconstitutional and void. “Where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Jones v. United States, 529 U.S. 848, 857 (2000).

Judge Scanlon, however, found that to state a claim under § 1981, one must be a member of a minority group, and that this is perfectly constitutionally sound. Or, essentially, that the law is different for white people than it is for racial minorities. I unfortunately don’t get to challenge this part of the report since my most recent amended complaint dropped the § 1981 claim (it was unnecessary since proving that I was stopped illegally is much simpler than proving that I was stopped because of my race). It is, however, disturbing just the same.

Corbett v. City of New York – Report & Recommendation (.pdf)

NYPD Asks Nicely for Judge to Dismiss; Judge Tells City to File a Real Motion

In response to my suit against NYPD street body scanners and the motion for preliminary injunction, the city, a day after its response to the motion for preliminary injunction was due, sent the judge a 4-page letter asking the judge to toss the entire case. Nothing surprising in the argument… basically, “we haven’t done anything yet so there’s nothing to sue for, and this Florida guy doesn’t even live here.” Of course, when the city admits that they’re going to begin testing ASAP, and when the complaint clearly indicates that I travel within the city for several weeks a year, this argument is of limited utility.

What *is* surprising is the city’s response by letter. No formal opposition to the motion for injunction, no formal motion to dismiss, just a 4-page “Yeah, nothing to see here, just toss that aside, k?”

Before I had a chance to finish typing my response to their letter, the judge denied their request to dismiss, offering them 2 weeks to file a real motion. The motion for preliminary injunction remains looming. It is unclear whether the judge plans to wait until the motion to dismiss is received to rule on it, but my bet is that he will.

Corbett v. City of New York II – City’s Letter to Dismiss (.pdf)
Corbett v. City of New York II – File a Real Motion Order (.pdf)

NYPD Fails to Respond to Motion for Injunction

Today marks the two-week anniversary of my latest lawsuit, requesting the federal courts to shut down the NYPD’s plans to scan New Yorkers as they walk down the streets for guns without suspicion at all. The city was simultaneously served the complaint as well as a motion for a temporary restraining order and preliminary injunction*. By local rule, their opposition, if any, is due by midnight tonight. So far, crickets chirp when opening the docket.

What does this mean? Likely the city asking for an extension shortly, which would probably be granted, but may not be: motions for temporary restarining order can be granted ex parte, so technically the judge needn’t have waited for a reply at all. I’ve e-mailed the city’s attorneys in hopes that the new e-mail sound effect on their inbox will wake them from their slumber. It’s nice to see that the city takes this matter as seriously as it does the civil liberties of its citizens.


* What’s the difference between a temporary restraining order and a preliminary injunction, you say? In the federal courts, a temporary restraining order is a short-term injunction that a judge can act on immediately, without waiting for the other party to respond, lasting only until a motion for preliminary injunction can be heard. A preliminary injunction, on the other hand, requires motion practice including time for oppositions and replies, but this type of injunction can last until the merits of the case are decided — potentially for years.

Q&A on Lawsuit Against NYPD Scanners

Thanks again for your support — yesterday was awesome! 🙂 It feels so good to make a difference, and win or lose on the suit, the NYPD’s plans to scan people walking the sidewalks of the city are now front and center — before hundreds of these things were deployed. If we only would have hit the TSA hard when they were doing pilots of their scanners, I think we would have had a chance at stopping the whole thing, and I hope not to let that opportunity go to waste here.

I’m seeing some recurring questions and misconceptions in the comments here and on the news sites (NY Daily News, NY Post, Village Voice, Gothamist), so I wanted to comment more prominently on the following:

Q. These scanners don’t produce embarassing images like the TSA scanners… what’s the big deal?
A. The big deal about the NYPD scanners is not that they’re conducting an intrusive, invasive, or embarassing search. The big deal is that they’re conducting a search at all. The police may not search the people without individualized suspicion. They’re not even allowed to demand ID without reasonable suspicion. To allow them to search our bodies in any way is entirely novel to this great nation.

Q. If the scanners were more accurate / less prone to error / more specific, would you still be opposed?
A. Yes! NO SEARCH is allowed without reasonable suspicion. Even that is a stretch from the intent of the framers of the Constitution, who specifically called for probable cause (a much higher standard), but the Supreme Court has allowed police a limited exception for weapons checks at the lower standard of reasonable suspicion.

Q. Then how do you expect the police to get illegal guns off the streets?
A. These scanners actually bring New York’s gun laws front and center. In any other state, save for perhaps IL and DC, having a gun doesn’t presume you to be a criminal. In NY, it is so impossible to get a gun license that the police expect that they can scan the general public and anyone with a gun is almost certainly a criminal. People walking around with guns should not be presumed to be criminals in America, and the NYPD’s attempt to make it so is appalling. Chicago and DC’s handgun laws have been firmly slapped down over the past few years, and I expect NY will feel the same quite soon. For example, it is currently an impossibility for me to legally carry a gun in NY — the state does not accept out-of-state pistol permit applicants and honors no other state’s licenses. How is it that the second amendment guarantees our right to bear arms (as confirmed by the Supreme Court) yet I can’t legally do so in NY? Regardless, NY can do what every other state does: if you have reason to think someone has an illegal gun, get a search warrant.

Q. Why didn’t you bring up the radiation issue? These things are dangerous!
As best my research has led me at this point, I do not believe that NYPD scanners emit any radiation — they appear to be “passive” scanners, which means they are basically just digital cameras that capture a different type of light and run analysis on that light. They don’t put out their own light. If it comes out that these scanners do emit their own terahertz waves, we can look at the issue from there.

Lawsuit Filed Against NYPD Street Body Scanners

When the TSA brought nude body scanners to the airports, demanding that the citizens allow the government to photograph them naked in order to get on a plane, there were some who said, “If you don’t like it, don’t fly!” That we should give up some of our liberty in order to “keep us safe,” because airports are where all the terrorists are.

When the TSA started paying visits to Amtrak and Greyhound stations, there were some who still didn’t see the problem. After all, “I’ve got nothing to hide!”

Now the NYPD has asked us to accept body scanners on the streets, allowing them to peer under your clothes for “anything dangerous” — guns, bombs, the Constitution — from up to 25 yards away for, you know, our safety. (And someone please think of the children!)

nypdscanI’m pleased to have filed the first lawsuit against the nude body scanners after the TSA deployed them as primary screening in 2010, and I’m pleased to announce that today I filed suit against New York City for its testing and planned (or current?) deployment of terahertz imaging devices to be used on the general public from NYPD vans parked on the streets — a “virtual stop-and-frisk.” My civil complaint, Corbett v. City of New York, 13-CV-602, comes attached with a motion for a preliminary injunction that would prohibit use of the device on random people on their way to school, work, the theater, or the bar.

It is unfortunate that it seems that government at all levels is always in need of a fresh reminder that the citizens for whom it exists demand privacy, and that each technological advance is not a new tool to violate our privacy. However, as often as proves to be necessary, we will give them that reminder.

Corbett v. City of New York II – Complaint with Exhibits
Corbett v. City of New York II – Motion for Preliminary Injunction

NYPD to Implement Long-Range Body Scanners on Streets to Look for Guns — Shall I Sue?

http://www.dailymail.co.uk/news/article-2267217/Forget-pat-downs-NYPD-testing-handheld-X-ray-device-detect-concealed-weapons.html

The TSA argues that its nude body scanners are necessary because of the specific risk of air terrorism. But random police checkpoints have never been allowed to force random searches, and case law on thermal imaging, which is a lot less detailed than terahertz imaging, is clear that it requires a warrant. Beyond that, having a gun in an airport is illegal, but having a gun on the street is constitutionally-protected, so the entire premise of the search is flawed.

I just happen to be about 1 mile from the federal courthouse in Manhattan. What do you guys think — will you be here to support me if I take this one on?

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