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)

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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