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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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NYPD Union: City Complaint Agency “A Disgrace” for Fourth Amendment Tweet

In New York City, garden-variety complaints of police officer misconduct can be filed with the Civilian Complaint Review Board, a city-run agency with the power to investigate complaints and recommend sanctions to the police commissioner when warranted.  The existence of the CCRB provides an avenue for the public to report problems other than to the courts — probably saving the city a fortune every year in judgments, settlements, and legal fees.

On May 4th, the CCRB tweeted about the Fourth Amendment, with a link to report to them police violations of the same.  This was apparently too much for the NYPD’s Sergeants Benevolent Association, who responded on Twitter with this gem:

 

And cops wonder why the NYPD is, er, unpopular, with the people: they think they are above the law because they have a difficult job.  Accountability and respect are not mutually exclusive, and the NYPD must stop this childish us-vs-them mentality with those who demand the former as a prerequisite to the latter.

It’s not a surprise that this is the #1 most liked reply on the SBA’s tweet:

  

Is It *Really* Impossible To Get A Gun License in NYC? (Part VIII — Appeal to N.Y. High Court)

This is the eighth 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!).


 

Motion for Leave to Appeal to N.Y. Court of AppealsThe U.S. Supreme Court has made pretty clear that a “total ban” on any particular gun right is unconstitutional.  They seem to be pretty clear that it doesn’t matter whether the total ban is only on the carrying of weapons, or on all ownership, or even on certain classes of weapons.  No total bans.

But, what is a “total ban?”  According to the appellate court that denied my appeal last month, “New York’s handgun licensing scheme does not impose any blanket or near-total ban on gun ownership and possession.”  But if an ordinary citizen with no criminal record is denied a license, denied an administrative appeal, denied a court petition, and denied an appeal of that denial, how does that not amount to a total ban for me and for every other ordinary citizen with no criminal record?  What, exactly, would the state have to do to have a “total ban” in the eyes of N.Y. Supreme Court, Appellate Division?

Yesterday I asked the highest court in the state, the N.Y. Court of Appeals, to settle the matter.  The court appears to have passed on pretty much every gun licensing case sent its way since the U.S. Supreme Court declared in 2008 that gun ownership is an individual right that requires no militia membership, and clarified in 2010 that the Second Amendment applies to the states.  The Court of Appeals’ failure to consider the issue in about a decade, after important changes in constitutional law at the federal level, have resulted in a patchwork of decisions from the trial and appellate courts, all of which have invented their own rules.

Appealing to the high court of New York is actually a pleasant experience compared to New York’s intermediate appellate court, which requires 8 copies of every document with special tape binding, a PDF version with digital bookmarks, and a $315 fee, among other weird requirements.  And it’s a daydream compared to the U.S. Supreme Court, which requires 40 copies (!!) of everything, a $300 filing fee, and a garbage bag (really).  The Court of Appeals requires only 7 copies (double-sided ok), a $45 filing fee, and no choice of drawstring or twist-tie.

In the meantime, the federal criminal trials of several officers in the NYPD’s Licensing Division for taking bribes in exchange for gun licenses continues.  One officer has pled guilty and is testifying on behalf of the feds:

David Villanueva, an ex-supervisor in the NYPD’s License Division, said he and other cops — including officers Richard Ochetel and Robert Espinel and Lt. Paul Dean — were on the take for years from so-called gun expeditors.

In exchange, the officers doled out pistol permits like candy — even to people who should not have had them, Villanueva said.

One expeditor, he said, may have had ties to organized crime. Another got help with 100 gun permits over the years — “none” of which should have been approved.

Source: New York Post

Here’s to hoping that while the Court of Appeals clarifies New York law, it also takes up my invitation to end the corruption in the Licensing Division.

Corbett v. City of New York IV – Motion for Leave to Appeal (.pdf)

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.

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.

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.


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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)

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