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 Jonathan Corbett, Civil Rights Advocate

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Transcript of Oral Arguments in Muslim Ban Case Shows Department of Justice Entirely Lost on How to Defend; Trump Fires Acting Attorney General

darweesh_transcriptBefore U.S. District Judge Ann Donnelly issued a temporary restraining order against
Donald Trump and the U.S. Customs and Border Patrol from enforcing a “Muslim ban” — prohibiting travel by green card holders and individuals with refugee status from 7 Muslim-majority countries — a hearing was held in which both attorneys for plaintiff Darweesh and attorneys from the Department of Justice for the government appeared.  Early media reports indicated that the U.S. Attorneys were entirely unprepared and had no defense for Trump’s executive order.  And, yesterday, Trump fired Acting Attorney General Sally Yates, allegedly after “she defiantly refused to defend his executive order closing the nation’s borders to refugees and people from predominantly Muslim countries,” according to the New York Times.

I noticed on the docket today (PDF or live version if you have a PACER account) that the transcript of these oral arguments was ready but not available over the Court’s Web site.  I managed to obtain a copy anyway which I’m now publishing for you all.

Darweesh v. DHS – Transcript of Oral Arguments on Motion for TRO, 1/28/2017 (.pdf)

Some highlights:

  1. There were five attorneys from the government there — four from the U.S. Attorney’s office and one from U.S. Customs & Border Patrol.  Not a single one of them, at any point in the 21 pages of transcript, even remotely attempted to argue that Trump’s order was lawful and the plaintiffs could not succeed on the merits.
  2. The test for whether to issue a stay is a balancing of whether: 1) the requesting party is likely to succeed on the merits, 2) the requesting party will suffer irreparable injury, 3) the opposing party will be injured, and 4) the public’s interest will be harmed.  The only one the government even tried to address was irreparable injury, by saying that Darweesh was already released and therefore couldn’t be harmed.  The judge was not interested.
    not_so_moot
  3. But, the 3 attorneys for the plaintiff from the ACLU successfully argued that they would likely meet the requirements to proceed as a class-action, and thus were arguing on behalf of everyone who was detained or threatened with deportation under Trump’s new order — so Darweesh being released didn’t end the case.
  4. The judge made clear that her ruling applied to all affected by Trump’s order.  Thus, if at other airports across the country CBP was still detaining people, they were clearly in violation of the court’s order.  And for those who feel that Trump’s order is totally constitutional, the judge specifically ruled that it was likely that plaintiffs could prove otherwise:
    so_classy
  5. The judge at times was clearly irritated with the government’s lack of response to her questions, and at one point told them that they would not be able to speak any longer.say_no_more_fam

Apparently, Trump is upset that his Acting Attorney General refused to defend his executive order.  But the real question is: What defense could they have plausibly given, especially given that apparently Trump gave the Department of Justice no notice of his plans?

If you want your executive agencies to work with you, they have to be kept in the loop.  Even then, however, it will be a hard sell for any attorney to walk into a courtroom with a straight face and say that the executive order by the guy who said he’d ban Muslims isn’t about banning Muslims, but just happens to be directed at 7 almost-all-Muslim countries.

I don’t envy anyone in the U.S. Attorney’s office’s civil litigation division right now.  They’re not getting paid enough for this shit.


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

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

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.

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

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