TSA, Having Lost Immunity in Four Courts of Appeals, Tries Again Twice More

TSA loves arguing that it’s exempt from Federal Tort Claims Act (FTCA) lawsuits based on the misconduct of its checkpoint screeners. The text of the FTCA states that it only applies to intentional misconduct when committed by an “officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law,” and TSA argues that checkpoint screening isn’t really “executing searches.” Given that the FTCA is the only viable way to redress checkpoint abuse in the courts, it’s no wonder that they give serious effort to this strategy despite it requiring… er, linguistical creativity… to say that TSA screeners don’t search.

Every U.S. Court of Appeals to hear the matter and come up with a precedential ruling — four so far — has ruled against them. I argued two of them that were decided last year (Osmon in the Fourth Circuit, Leuthauser in the Ninth) and the Third and Eighth Circuits took the same path in 2019 and 2020, respectively. But, there are twelve federal circuits that hear general appeals and a decision of one of them is only binding within the states covered by that particular circuit, so unless the Supreme Court takes up the matter, TSA is free to give all twelve circuits a try. If TSA wins in one of them, it can use that as a reason to persuade the Supreme Court to hear the case (lawyers call this a “circuit split”).

So try they do. In March, I’ll be doing oral arguments in Mengert v. U.S., on behalf of a woman who was subject to a back-room strip search by TSA screeners (TSA rules categorically prohibit their screeners from conducting strip searches for any reason). TSA lost on the FTCA issue in the lower court and is now raising it in the Tenth Circuit. TSA also tried again in a Florida federal district court in Koletas v. U.S., and prevailed on the FTCA issue in that trial court. That Florida ruling rubber-stamped TSA’s argument without even mentioning the Third, Fourth, Eighth, and Ninth circuit rulings, which is pretty outrageous even for Florida. We filed a notice of appeal to the Eleventh Circuit.

So in summary:

• First Circuit – No Decision
• Second Circuit – No Decision
• Third Circuit – TSA Lost (Pellegrino, 2019)
• Fourth Circuit – TSA Lost (Osmon, 2023)
• Fifth Circuit – No Decision
• Sixth Circuit – No Decision
• Seventh Circuit – No Decision
• Eighth Circuit – TSA Lost (Iverson, 2020)
• Ninth Circuit – TSA Lost (Leuthauser, 2023)
• Tenth Circuit – Oral Arguments in March 2024 (Mengert)
• Eleventh Circuit – Oral Arguments Likely Winter 2024 (Koletas)
• DC Circuit – No Decision

The Electric Zoo 2023 Class Actions

Electric Zoo is a large annual electronic dance music festival held on Randall’s Island in Manhattan. They are no stranger to legal issues, and in fact my firm had sued them in 2019 over allegations that their security was conducting strip searches on attendees. But, matters were made worse when notorious Brooklyn nuisance/nightclub owner Juergen Bildstein purchased the event last year. 

Known for constant overcrowding and general assholery at his Brooklyn Mirage venue — which has resulted in that venue being temporarily shut down by the New York State Liquor Authority, New York Fire Department, New York Police Department, NYC Department of Buildings, and NYC Department of Health & Mental Hygiene (on separate occasions!) — Mr. Bildstein apparently took the same approach to organizing a festival.

The result was disaster: the first day of the three-day festival was cancelled entirely because they did not finish building their stages in time. The second day opened 2 hours late and some encountered lines to enter so lengthy that they never got in. And on the third day, NYPD noticed that they were approximately 7,000 people over their legal capacity mid-way through the day. Ticketed attendees who had not yet entered were denied access until they, predictably, rushed the gates, causing many injuries and a riot-like environment. Those who did manage to get in on either day were treated to unsanitary bathrooms, unfinished stages, and massive lines to leave. So far, Electric Zoo has issued no refunds.

My firm was one of four of which I’m aware that has filed class-action lawsuits against the festival and its organizers for fraud, breach of contract, and the like. Three of these firms, including my own, have joined forces and yesterday filed a consolidated complaint (that is, one complaint to cover all clients of all three firms). In total, we directly represent 16 plaintiffs and have asked the court to certify a class of all ticket holders. The fourth firm seeks to hold the festival liable for racketeering — a bold move and we wish them and their 3 additional plaintiffs well.

All four firms’ cases are being heard together as Brockmole v. EZ Festivals, Case No. 1:23-CV-8106 in the U.S. District Court for the Southern District of New York. The defendants will answer these complaints by next month and the court will set scheduling shortly thereafter.

Brockmole v. EZ Festivals – Consolidated Complaint (.pdf)

Brockmole v. EZ Festivals – Racketeering Complaint (.pdf)

United Faces Class Action Suit for 777-200 Engine Failure — Again

United Airlines has a problem.

Of its approximately 900 airplanes, only 19 of them are original Boeing 777-200s, delivered 23 to 28 years ago with Pratt & Whitney PW4077 engines. In the last 10 years, these 19 planes had at least 11 engine failures or related incidents during takeoff or mid-flight. In 2021, my firm represented the passengers of UA328, when an engine fan blade broke off at high speed due to metal fatigue, causing an explosion. It turned out that the same thing happened to a sister aircraft in 2018, but United failed to conduct metal fatigue tests that would have prevented the 2021 incident. Passengers were treated to an engine fire that pilots could not put out until landing, causing panic and fear of death.

Today, my firm filed suit on behalf of the passengers of United 1158, departing from LAX on a 777-200 on June 21st, 2023. Like the 2021 incident, passengers heard an explosion shortly after takeoff. Moments later, the cabin filled with smoke, and passengers said goodbye to loved ones as the plane attempted an emergency landing. Although this plane landed without physical injury, 260 passengers walked away traumatized, suffering nightmares, flashbacks, and panic attacks. Many who complained were offered a few hundred dollars in United travel vouchers as compensation for this PTSD-inducing incident.

It turns out it was not even the first time this year that this particular airplane had engine failure: on February 4th, 2023, an engine shut down mid-flight.

Another United 777-200 had smoke in the cabin during flights twice, in 2016 and 2017.

Yet another United 777-200 had engine failures during flights twice, in 2016 and 2017.

Two more United 777-200s both had an engine shut down in-flight, in 2015 and 2017.

…and so on.

While planes can and often do land without physical injury when one engine malfunctions, this is an extremely dangerous state for these planes to be in, and it is a matter of time before a catastrophic failure occurs that ends in tragedy. But even absent a fiery crash, Americans should not be forced to wonder whether their plane’s engines can safely make it to their destination, and be subjected to a terrifying experience when they fail.

United should retire these planes immediately. But they won’t until the cost of lawsuits is greater than their profits from using these planes.

Carroll v. United, 23-CV-8236 (C.D. Cal.) – Class Action Complaint (.pdf)

Is It *Really* Impossible To Get A Gun License in NYC? (Part XV — Returning to the Court of Appeals)

This is the fifteenth 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), Part XIII (No Help from Second Circuit), Part XIV (Supreme Court Strikes Down Proper Cause). 

Total Time Spent So Far: 142 hours
Total Money Spent So Far: $4,102

It’s been more than a year since the U.S. Supreme Court struck down New York’s corrupt “proper cause” requirement, wherein only those whom the licensing officers deemed had a “good reason” to exercise their constitutional right to bear arms were permitted to do so. In anticipation of the ruling, I filed a new application a couple months before the ruling, so in theory, I should have my license by now, right?

Of course not.

In the wake of the Supreme Court’s decision, N.Y. Gov. Kathy Hochul crammed through legislation called the Concealed Carry Improvement Act. In addition to futility, such as declaring Times Square to be a gun-free zone (seems criminals didn’t get the memo), CCIA was designed to make it as difficult as possible to obtain a license. To that effect, it contains three particularly unconstitutional requirements: 1) mandatory disclosure of all social media accounts used in the last three years, 2) four letters of recommendation from others, and 3) 18 hours of training.

The social media requirement is particularly odious: it stands no chance of helping to keep guns from dangerous people, because dangerous people will simply not disclose the social media accounts they use to express their dangerous views. Sure, a licensing officer might find that account anyway, but that was already possible without CCIA. On the flip side, now if you have an OnlyFans, you’re required to let the police look at your body before you can exercise your rights, just as those who may anonymously use social media to discuss medical issues, their sexual orientation, or their fetish preferences must bare themselves to the police department.

The other two requirements fare no better: reference letters require outing one’s self as a (future) gun owner in a city where doing so is, in many scenes, socially unpopular, and re-introduces the same sort of “approval of others to use your rights” requirement the Supreme Court just struck down. And the training requirement serves no purpose other than to discourage applicants: it is the longest training regimen of any state, and there simply is not 18 hours worth of conversation to be had about responsible gun ownership — explaining when deadly force is legal, safe gun storage, and the like simply does not require more than a few hours. I support reasonable pre-licensure training to ensure that everyone who owns a gun understands their responsibilities, but that’s clearly not the intent or effect here.

So, I challenged these three requirements in U.S. District Court last July, and U.S. District Judge Lorna Schofield denied my request to enjoin all three of them. As to the first two, the state argued that they would not apply them to those who applied before CCIA took effect, and therefore I had no standing. Of course, I would be required to follow those requirements on license renewal, but that happening, she ruled, was too far away. That said, at least I have a commitment that my application will be processed without these requirements… for now.

As to the training requirement, the standard set by the Supreme Court for when a gun restriction is lawful is that there must be a tradition of similar laws at the time the Second Amendment was written; a so-called “historical analog.” Obviously, gun licenses didn’t exist at the time, and so the state argued that since militia membership was required, and militia membership required gun training, that this is “analogous” to CCIA’s training requirement.

I’ve appealed to the U.S. Court of Appeals for the Second Circuit, explaining why this is nonsense:

“First, as the government concedes, mandatory militia membership requirements applied only to 1) able-bodied, 2) male, 3) citizens of the state, 4) within a certain age range. … People who were disabled or otherwise not physically able to serve in the militia were not prohibited from carrying concealed weapons or required to partake in supplemental training. Neither were women, nor were those outside of the 30-year age range where service was expected, nor were those who lived in a state without being a citizen thereof. These “exceptions” entirely swallow the analogy, as more than half the population is female and a substantial percentage of the remaining male population would have been physically unfit to serve, a non-citizen, or of an excluded age.”

Beyond that, militia gun training serves the opposite purpose — teaching how to kill people with guns rather than educating to prevent gun deaths — and was entirely unconnected to gun ownership (that is, failure to participate in the militia did not result in disenfranchisement of gun rights). It is simply not an analogous restriction on gun rights.

My appeal is now fully briefed and likely to be scheduled for oral arguments in the fall. In the meantime, the NYPD is slow-walking all license applications, and mine has not even been scheduled for an interview by this time, now 15 months later. Although the tide is turning, at this time, it is still impossible to get a gun license in New York City.

Corbett v. Hochul – Appellant’s Brief (.pdf)

Corbett v. Hochul – Appellee’s Brief (NYC) (.pdf)
Corbett v. Hochul – Appellee’s Brief (NYS) (.pdf)

Corbett v. Hochul – Reply Brief (.pdf)

Ninth Circuit Holds Government Liable for TSA Misconduct at Airport Checkpoints

In a second victory for travelers this year, the U.S. Court of Appeals for the Ninth Circuit held 3-0 that the Federal Tort Claims Act allows lawsuits against the government when TSA screeners violate passengers. Two months ago, the Fourth Circuit held the same, and previously the Third and Eighth Circuits took the same path in 2019 and 2020, respectively.

Oral Arguments in Leuthauser in San Francisco, CA

I was pleased to represent Michele Leuthauser in both the district court and appellate court. The court aptly summed up her experience as follows:

Leuthauser was told that she had to submit to a “groin search.” Leuthauser then entered a private room with two TSOs, including Defendant Anita Serrano. Leuthauser was directed to stand on a floor mat with footprints painted on it to show where to place her feet. Leuthauser alleges that TSO Serrano directed her to spread her legs far more widely than the footprints indicated. TSO Serrano then conducted a pat-down during which TSO Serrano slid her hands along the inside of Leuthauser’s thighs, touched her vulva and clitoris with the front of her fingers, and digitally penetrated her vagina.

One would think that under such circumstances, it would be obvious that the screener or her employer would be on the hook for such egregious conduct. But, the government attempts to combine two laws to preclude any lawsuits against anyone. First, the Westfall Act allows the government, when one of its employees gets sued for on-the-job conduct, to say, “sue us instead of the employee.” This would not be a problem — the treasury is more likely to pay a judgment than a random TSA employee anyway — except they next use the Federal Tort Claims Act, which basically says, among other things, “the government can’t be sued for certain conduct.” In this case, it’s assault and battery when committed by anyone other than an “investigative or law enforcement officer.” So the argument is: 1) you have to sue only the government, but 2) the government isn’t liable.

Luckily, now four appellate courts have concluded that TSA screeners are “investigative or law enforcement officers. I wrote more about this when the Fourth Circuit ruling came out in April for those interested in the details, but suffice to say: if your local letter carrier, social security clerk, or receptionist at a VA hospital doesn’t like your attitude and punches you in the face, you may have no recourse, so long as the government protects the employee with the Westfall Act, because they are not “investigative or law enforcement officers.” But the law is now clear: TSA screeners are, and the government may be sued for their intentional (and negligent) misconduct.

Leuthauser v. United States, 22-15402 – Reversed & Remanded (.pdf)

U.S. Court of Appeals Clears Path to Lawsuits Against Abusive TSA Screeners

In 2012, a TSA screener refused to allow me to leave a checkpoint after I told him I wouldn’t consent to having him touch my genitals. He told me I would be forcibly searched, called the police, and spent 45 minutes tearing apart my baggage looking for drugs. TSA screeners, of course, have no authority to conduct a detention, a forcible search, or a search for drugs.

I sued TSA that year — long before I had even started law school — and the U.S. Court of Appeals for the Eleventh Circuit held against me, without allowing oral arguments as is traditional, because, they said, the law under which I sued only applied to “investigative or law enforcement officers” and TSA screeners are not “officers.” This despite their badge reading “U.S. Officer,” their job title being “Transportation Security Officer,” and obviously meeting the statutory definition, which was one “empowered by law to execute searches, to seize evidence, or to make arrests.”

Fast forward a decade, a law degree, and a law license later, and two U.S. Courts of Appeals have held the opposite — and today I’m proud to announce that the Fourth Circuit joins them in a unanimous opinion in Osmon v. United States, 22-2045, a case I argued on behalf of a woman who was sexually assaulted on video, right at a checkpoint, while the TSA screener commented on how short her shorts were:

The government disagrees, insisting the relevant language covers only searches that are part of “criminal law enforcement.” U.S. Br. 21 (quotation marks omitted). Per the government, the law enforcement proviso permits suits for battery only when the officer could perform “a criminal, investigatory search” rather than “an administrative search,” which takes the form of an “inspection” or “screening.” U.S. Br. 26.

The problem with the government’s argument is that it reprises a tactic the Supreme Court has already rejected: “read[ing] into the text additional limitations designed to narrow the scope of the law enforcement proviso.” Millbrook, 569 U.S. at 55. The word “criminal” appears nowhere in the law enforcement proviso—let alone as a modifier of “searches.” See 28 U.S.C. § 2680(h). Here, as elsewhere, we “may not narrow a provision’s reach by inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725 (2020).

Having joined the Third Circuit in Pellegrino v. United States, 15-3047 (3rd Cir. 2019, en banc) and Iverson v. United States, (8th Cir. 2020), there are now 15 states where TSA may no longer use the “we’re not officers” defense. Because the Eleventh Circuit did not publish their opinion in my 2012 case, it is non-precedential and lawsuits may proceed in all 35 other states, where TSA will have an uphill battle convincing courts to apply different logic.

Suffice to say, I am ecstatic to open the courthouse doors for all injured by abusive feds, I am thrilled to bring my client closer to getting some justice for this brazen misconduct, and I feel personally vindicated after having been swept out the courthouse door a decade ago by judges who, frankly, did not want to deal with a pro se litigant challenging the government’s status quo. My firm continues to handle cases of checkpoint abuse, and I encourage anyone violated by TSA at the checkpoint to get in touch.

Osmon v. TSA – Reversed & Remanded (.pdf)

Supreme Court: Electronic Filing is Mandatory, but Does Not Count as “Filing”

Since even before I was licensed to practice law, I’ve chronicled the absurdity that is filing a case with the U.S. Supreme Court. From requiring those dropping off papers to place their documents in garbage bags, to requiring 40 copies of all documents in specialized and expensive “booklet format,” to rejecting a filing for having an “insufficiently thick cover,” instead of making justice as accessible to all as possible, this court has made practice before it the ultimate hoop-jumping experience.

All of the issues above are correctable; that is, if you do it wrong, you just need to fix it. But at the end of last year, the Supreme Court caught me with one that is not only uncorrectable, but not specified in their rules, and I post this both as a plea for the high court to get their shit together as well as to serve as a warning to other attorneys: the Supreme Court does not count “electronic filing” as “filing” for the purpose of meeting a deadline for a petition for certiorari.

Sure, electronic filing is mandatory. And sure, the Web site to submit your electronic filing calls itself “Electronic Filing System” and the address of the Web site is file.supremecourt.gov. But please be forewarned: what you do at this site does not count as a “filing.”

Of course, in order to submit your documents, you push a button labeled “New Filing.” And of course, when you complete the process, it tells you, “Your electronic filing was submitted on [date] [time].” But do not be confused: you have not filed anything.

If you think this tool might file a document, you are mistaken, comrade.

You may also have thoroughly read each and every one of the court’s rules and guidelines and found nothing to indicate that even though you have successfully transmitted a document to the court, the court will not treat it as filed. This is true even if, as an experienced litigator, you know that literally every other federal court in this great nation considers a document as filed for deadline purposes at the earlier of when the court receives either the paper or electronic version, and that failure to file paper copies when required is a minor, correctable breach of rules rather than a jurisdictional time bar-creating nightmare. But you clearly do not understand that the Supreme Court is special, so not only must you disregard your experience with other federal courts, you must make peace with the fact that some rules are just not meant to be written.

Unfortunately, an explainer-guide like the above did not exist before this post, so when I e-filed a petition with the Supreme Court on the night of the filing deadline and saved a filing confirmation, I took comfort in the court’s Electronic Filing Guidelines, which state that the electronic and paper copies must be filed “at or near the same time.” So, “the morning after the electronic filing” seemed to me to be “near the same time” for the purpose of filing paper copies, but the Clerk of the Supreme Court rejected my filing for missing a jurisdictional time bar because, I was told for the first time, regardless of whether or when you electronically file, the only date that counts for meeting a deadline is the date the paper copies are sent.

Of course, there’s no law actually requiring the court to consider this a jurisdictional miss, since Congress has not precluded the court from “counting” the electronically filed version, but if the Supreme Court can disregard you, it, quite simply, will. My motion to file the petition “out-of-time” was denied yesterday without comment.

It’s not just me. Attorneys are regularly caught by this absurd rule, as evidenced by motions on the court’s docket to hear their petitions “out-of-time.” I was able to find at least 3 attorneys who had this problem in 2022 alone, and probably many more: since the Supreme Court (as best I can find) has never granted such a motion, I would imagine most attorneys don’t bother to file one due to the embarrassment of publicly outing themselves as having missed a deadline. I’m assuming this is also why a post like this doesn’t yet exist. It is never the highlight of an attorney’s day to tell their client — let alone any member of the public who cares to read the docket, or their blog — that a case is over because a deadline was missed, and it is not the highlight of mine. But the Supreme Court’s refusal to even put a clarification in their own rules, or a tiny note on their e-file portal, despite this regular occurrence, is a failure for which the legal community deserves warning and SCOTUS deserves shaming.

I joined this profession to help people get much needed justice, and although I wasn’t able to get it for my client this time (an unfortunate reality of civil rights litigation sometimes, even when a case is not snagged by procedural boobytraps), I hope this guide helps at least one more person get justice, and I know it will help more than one attorney avoid pulling their hair out when receiving a nastygram from the clerk after thinking they were in the clear.

Court Denies Preliminary Injunction Against New N.Y. Gun License Requirements

In July, I filed suit against New York’s new social media, references, and training requirements for gun license applicants, created after the U.S. Supreme Court ruled that the state’s policy of allowing gun rights only to those whom the state believed had shown a “good reason” to exercise them. Four months later, the court today orally denied a motion to preliminarily enjoin those requirements. (A written opinion will be forthcoming.)

As to the social media and references requirement, the state argued that these requirements will not apply to those who submitted their applications before the law took effect, as I had done, thus negating my “standing” to sue. That is, the law doesn’t directly affect me (yet), so I can’t challenge it (yet). To be fair, assuming the government is going to process my pending application without giving effect to those requirements, the court got this one right. I am skeptical that they will process my application in this way, but the claims can be re-asserted if and when they “change their mind.”

As to the training requirement, the government needed to demonstrate a historical analog — in other words, a tradition of similar restrictions from the time the Second and Fourteenth Amendments were passed. The government argued that since everyone had to be in the state militia, and the militia had substantial training requirements, there is indeed an analog. The court was persuaded; however, on this issue, I believe the court made a mistake. Militia service and training requirements were not connected with gun ownership. One who was not male, or in the right age range, was not required to serve, but also not precluded from having a gun. Neither was one who simply disobeyed the service requirement. The Supreme Court has been clear that the rights conferred by the Second Amendment are not connected to militia membership, yet here we are with yet another ruling trying to connect them.

I intend to appeal the decision on the training requirement to the U.S. Court of Appeals for the Second Circuit. As almost 8 months has passed since I filed a license application without any indication of processing, I also intend to add a claim of unconstitutional delay to the case. I know that, for many, this ruling is disappointing, but it is a step towards the ultimate resolution, and sets up a scenario where the Second Circuit either upholds a law based on re-connecting the right to militia membership — something that the Supreme Court plainly will not tolerate — or fixes this issue. And, regarding the social media and references requirement, if you or someone you know has applied for a carry license in New York after August 2022 and they would like representation, please be in touch and perhaps we can get these issues back on the board sooner rather than later.

Court Asked for Preliminary Injunction of Social Media Disclosure Requirement for Gun License Applicants

On July 11th, 2022, I sued Gov. Kathy Hochul over her new law designed to disenfranchise New Yorkers of their right to bear arms in the face of a U.S. Supreme Court ruling that they may not deny that right to the ordinary citizen. This law, S51001, requires gun license applicants to disclose all of their social media accounts, to gather four references, and to complete 18 hours of training. By my estimates, this raises the cost of obtaining a license to over $1,100 and about 35 hours of one’s time, not to mention the cost of missing work to make that happened. The intent is obvious: make it so difficult to get a license that the ordinary citizen, once again, is unable exercise their rights.

My case was assigned U.S. District Judge Lorna G. Schofield and not much has happened, other than the government asking for a lengthy extension of the time they have to respond, but today I got the ball moving by asking Judge Schofield to issue a preliminary injunction against these requirements:

Law-abiding citizens will be forced to relinquish their right to anonymous speech and Internet privacy, while the next mass shooter simply lies on the application and omits any incriminating social media accounts. Diligent investigators, of course, may find incriminating social media anyway, but they could do the same just as well without this law. In other words, the law only serves to punish law-abiding citizens who will be honest on their applications, with no benefit to public safety.

The government’s response will be due in 2 weeks, and the answer to their complaint (with extension) in 3 weeks. I have only some faith that the motion will be granted, but the nice thing about preliminary injunctions is they are immediately appealable. I would imagine the government would appeal if they win, so either way we’ll be in the U.S. Court of Appeals before end of year.

corbett-v.-hochul-motion-for-pi-filedDownload

New York Sued for “Blue Law” Against Sunday New Year’s Parties

Only 50 years ago, there were places in this country where you could not buy non-essential items on Sundays, because it was a crime for shopkeepers to sell them to you.

These laws, called “Sabbath laws” or “blue laws,” existed in the vast majority of states, came in many varieties of Sunday prohibitions, and the traditionally-liberal states in the northeast, such as New York and Massachusetts, were among the last to get rid of theirs in the late 70s. By 1976, the highest court in New York had little trouble concluding that “[t]here is little doubt that these laws are clearly religious in origin…” and striking down the laws in that (and subsequent) challenges. People v. Abrahams, 40 N.Y.2d 277, 281 (N.Y. 1976). The Constitution forbids state establishment of religion, and it is obvious that these laws contravene that “commandment.”

But, laws are struck down one at a time, and for whatever reason, several of New York’s remain unchallenged. One of the remaining ones is this: on New Year’s Day, New York allows its bars to stay open all night long, so long as they are in good standing and submit an application with a small fee. But, if New Year’s Day lands on a Sunday, the law prohibits licenses from being issued by its State Liquor Authority.

Noticing that January 1st, 2023 lands on a Sunday, Brooklyn event venue and licensed bar Eris has filed suit last night, with me as counsel, challenging this law. It may seem trivial, but even small violations of constitutional rights should be remedied, and in fact, this law costs bars and restaurants tens of millions of dollars (not to mention millions of dollars in lost tax revenue) each New Year’s Day — so it is not all that trivial and frankly I am shocked that the industry has not challenged this law yet.

The case is Eris Evolution, LLC v. Vincent Bradley (the current Chairman of the New York State Liquor Authority) and was assigned case number 1:22-CV-4616 in the United States District Court for the Eastern District of New York. I am hopeful that New York will agree to end this practice rather than fight to keep the Lord’s Day enshrined in state law.

eris-v.-bradley-complaint-filedDownload