It’s a little TOO quiet…

It’s now been a full month since I’ve seen the familiar “Activity in Case…” e-mails that the federal court system sends to litigants registered for electronic filing. Considering I have four cases open in four different courts, it’s the first time I’ve had a month of quiet since 2011. This gives me a little time to write my comment for the TSA’s public rulemaking regarding nude body scanners (due by June 24th, 2013 — no legal experience required, just let the TSA know how you feel!) and my appeal that is inevitable regarding (in largest part) U.S. District Judge Joan A. Lenard’s decision that TSA screeners enjoy qualified immunity for unlawful searches even when they know they intentionally continue their search beyond what is necessary to find weapons.

So, here’s where we are right now:

• 12-15893, Corbett v. DHS, U.S. Court of Appeals for the 11th Circuit
  Re: Constitutionality of Nude Body Scanners & Enhanced Pat-Downs
  Currently pending a ruling on how much of the administrative record the TSA may hide from the public, as well as whether the court will appoint a “special master” (essentially, a discovery judge) to gather facts
• 12-CV-20863, Corbett v. TSA, U.S. District Court, Southern District of Florida
  Re: Detention, Retaliatory Search, Threats of (False) Arrest, and Lying in Public Records Responses After Refusal to be Scanned
  Currently pending a ruling on the lying, all other charges dismissed on immunity grounds (to be appealed once the pending ruling is issued)
• 11-CV-3549, Corbett v. City of New York, U.S. District Court, Eastern District of New York
  Re: Unlawful Stop & Frisk
  Currently pending a ruling on whether the case may proceed even though the city “can’t find” the police officers who detained me
• 13-CV-602, Corbett v. City of New York, U.S. District Court, Southern District of New York
  Re: Constitutionality of “Street Body Scanners”
  Currently pending a ruling on standing (whether I can bring the suit now or have to wait until the NYPD actually starts using the scanners)

I have this sneaking suspicion that I will shortly be innundated with rulings and legal documents to write. The calm before the storm…

NYPD: Can’t Sue Us Over Body Scanners Until We Violate You

In my suit against terahertz imaging by the NYPD, their motion to dismiss based primarily on standing is now fully briefed. In it’s final say on the matter, the NYPD argued the following:

Plaintiff Will Have Standing If, And When, The NYPD Implements The Scanners And Plaintiff Is Among The Scanned

In other words, the NYPD argues that the courts may not prevent the NYPD from violating the people — they must wait until they have already violated the people. Luckily for the people, that’s actually not the legal standard. In addition to stepping in once an actual injury has occurred, the courts may step in when an injury is “imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 561 (1992). Additionally, threatened injury is sometimes enough to cause actual injury (for example, a threat to the right to speak freely is often enough to convince a court that people are not speaking because of the threat, and therefore an actual injury exists). The court may or may not decide that my injury is imminent enough (and if he decides against, I can re-open the case as soon as the scanners hit the streets), but it certainly won’t be based upon the NYPD’s deranged interpretation of the cases and controversies clause.

Corbett v. City of New York II – Motion to Dismiss (.pdf)
Corbett v. City of New York II – Motion to Dismiss Opposition (.pdf)
Corbett v. City of New York II – Motion to Dismiss Reply (.pdf)

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!)

I’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?

New York Attorney Needed

I’m looking for a NY-licensed attorney willing to donate about half an hour of his time to give me some thoughts on a new project I have going on that aims to curb abusive NYPD stop-and-frisks. I expect this project to be for stop-and-frisk what my video was for TSA body scanners.

If you or someone you know fits that criteria, please contact me at: jon [at] fourtentech.com

NYPD: Don’t Mind That Unlawful Stop-And-Frisk Over There!

I asked the court hearing my lawsuit against NYPD stop-and-frisk for permission to file the audio recording I posted last week of NYPD officers stopping and frisking a teen for no reason, then cursing at and assaulting him. The NYPD filed opposition to admitting that evidence today because it’s “irrelevant” to my case.

Although I’m allowed to file a lengthy reply citing all the cases where similar evidence was deemed relevant, I feel that my one paragraph reply got the point across:

The case at bench alleges a custom and/or policy of unlawful stop-and-frisks by the NYPD. If the City’s Law Department seriously cannot figure out how an audio recording of another man’s blatantly unlawful stop-and-frisk at the hands of NYPD officers is relevant to this case, it is no wonder that the City’s police officers cannot figure out the difference between lawful and unlawful search and seizure.

Hey, at least they didn’t beat me like the student they beat last week whom they “mistakenly” (that is, without investigation) believed was tresspassing.