Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]

New York City Department of Transportation Report Finds "Little Concrete Evidence" That Distracted Walking Contributes to Pedestrian Fatalities and Injuries

Proposals for laws and ordinances that restrict "distracted walking" (walking while texting or using the internet on phones) have been all the rage. Now, however, it appears that governments are finally examining the issue and are (unsurprisingly) finding that the perceived plague of distracted walking is disconnected from reality.

New York City's Department of Transportation has issued this recent report finding "little concrete evidence that device-induced distracted walking contributes significantly to pedestrian fatalities and injuries." Coverage of the report is here, here, and here.

The report surveyed United States cases of pedestrian fatalities between 2010 and 2015 and found that were approximately 38 fatalities "involving pedestrian use of portable electronic devices" out of a total of 28,642 pedestrian fatalities. Additionally, the report surveyed New York City fataility reports from between 2014 and 2017 and found that cell phones were involved in two incidents where pedestrians were killed -- one where a pedestrian was texting, and another where the pedestrian was reaching for a dropped "mobile device." This was out of a total of 856 pedestrian fatality cases with available narratives.

The report included estimates of "cell phone-related injuries" on streets and highways--although most of those injuries involved cases where "a driver, passenger, or cyclist" was using a cell phone rather than the injured pedestrian. Even with this broader categorization, the percentage of injuries involving cell phone use was fairly low, ranging from 2.4 to 5.3 percent of all pedestrian injuries from 2009 to 2015.

While the report acknowledges that cell phones can be distracting, and includes several citations to studies regarding distraction, it notes that drivers remain the most important target for regulation. The report states that "the most significant gains in reducing pedestrian fatalities and severe injuries can be made by continuing to target the most dangerous behaviors -- such as driver speeding and failure-to-yield -- and by implementing street improvement projects that reduce the severity of crashes."

Legislators on the state and local level typically focus on anecdotes or instinct when it comes to passing overly broad restrictions against distracted walking. As I have noted before, these restrictions -- which target commonplace conduct -- will likely result in law enforcement officers having broad discretion in deciding who to cite, a scenario that lends itself to selective enforcement. Hopefully, lawmakers considering these regulations will see the New York City Department of Transportation report and note that their efforts to curtail pedestrian deaths and injuries would be better served by other means.

The Supreme Court Will Hear the First Major Second Amendment Case in Nearly a Decade

On Tuesday, the Supreme Court granted certiorari in a case challenging the constitutionality of New York City's regulations that restrict the carrying of firearms outside the home. The New York Times and Wall Street Journal have more reporting on the background of the case. From the New York Times:

The Supreme Court said on Tuesday that it would review a New York City gun law that limits residents from transporting their guns outside their homes, its first Second Amendment case in nearly a decade and a test of the court’s approach to gun rights after the arrival of Justice Brett M. Kavanaugh in October. 

Justice Kavanaugh, who replaced the more moderate Justice Anthony M. Kennedy and created a reliable five-member conservative majority, has an expansive view of gun rights. His presence most likely means that the Supreme Court will start exploring and perhaps expanding the scope of the Second Amendment.

The case is New York State Rifle & Pistol Association, Inc. v. City of New York, and the petitioners challenging New York's rule are an organization and several individual gun owners. The Second Circuit opinion that is being appealed is here.

New York Penal Law section 400.00(2)(a) and (f) provide for "premises" licenses and "carry" licenses for handguns. New York City's Rule regarding premises licenses states:

(a) Premises License – Residence or Business. This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license. This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately. (38 RCNY § 5-01(a)

This rule contains a number of restrictions, including that handguns be transported unloaded in a locked container, that ammunition be carried separately, and that handguns may be transported to "authorized" shooting ranges. The City acknowledges that there are seven authorized ranges in New York City. Holders of premises licenses are restricted from transporting firearms to shooting ranges outside of the city or to second homes, even if they are within the city (as this destination is not "an authorized small arms range/shooting club."

The Court has refused to take up Second Amendment cases since its 2010 ruling in McDonald v. City of Chicago in which it held that the Second Amendment's protections apply to the states. The Court had previously held in its 2008 ruling in District of Columbia v. Heller that the Second Amendment creates an individual right and that its core protection was of the possession of firearms for self-defense in the home. Since then, lower courts have applied a variety of approaches to the Second Amendment, as many of the cases they have confronted have involved rules or restrictions affecting the possession or carrying of firearms outside of the home. Noting Heller's statement limiting the core possession to self-defense in the home, and also noting language stating that the case should not cast doubt on other, "longstanding" restrictions on firearms, lower courts have typically restricted the scope of the Second Amendment. The Supreme Court has consistently refused to review these decisions -- including cases involving the carrying of firearms.

This is now likely to change, as there are now four conservative justices with expansive views of Second Amendment protections. These four justices create a block of four votes required to grant review of lower courts' decisions.

Justice Thomas, in particular, has consistently dissented from the Court's prior refusals to take up Second Amendment cases. He has been joined in these prior dissents by Justice Gorsuch (in this case involving California's restrictions on the carrying of firearms). Justice Alito likely shares Thomas's views, as reflected in his concurring-in-the-judgment opinion in Caetano v. Massachusetts, in which Alito (joined by Thomas) criticized the reasoning of the lower court opinion and argued that the Second Amendment's protection encompasses the possession of weapons commonly used today for self-defense. (As an aside, commentators will likely point to Alito's 1996 dissent from a case upholding a ban on machine guns, but that dissent is not particularly useful, as his analysis focuses on the Commerce Clause of the Constitution, and not on the Second Amendment). Justice Kavanaugh is likely to join Thomas, Gorsuch, and Alito in seeking a broad ruling on Second Amendment protections, as he has previously ruled that prohibitions on semi-automatic firearms are unconstitutional. (See page 46 of this opinion for the start of Kavanaugh's dissenting opinion while he was still on the DC Circuit).

Some commentators argue that the Supreme Court will likely overturn the Second Circuit's opinion and broaden the scope of Second Amendment protections. Mark Joseph Stern argues this in this Slate article and Garrett Epps makes a similar point over at The Atlantic. Both articles have exaggerated titles (Stern's claims that the Court will make all states' laws like Texas' laws and Epps' title raises the notion of "Supersizing" the Second Amendment). But the tone of each article suggests that these goofy titles are likely the choice of editors rather than the authors.

Stern writes:

The case thus marks an effort to inch the Supreme Court toward establishing a right to public carry without forcing the justices to tear down hundreds of laws in a single, sweeping ruling. For a decade, gun advocates have been stymied by the language in Heller and McDonald expressly limiting the Second Amendment to firearms “in the home.” The conservative justices, however, will probably use New York State Rifle to blur that line.

 And Epps notes:

The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down. 

“The impact of this case could be huge,” [Law Professor Adam] Winkler told me, because the Court may decide that the right to gun possession extends outside the home. The Court could undermine long-standing restrictions on concealed carry in America’s major cities, leading to hundreds of thousands more guns on the streets of Los Angeles, New York, and Washington, D.C.

Like Stern and Epps, I think that it's likely that the Court will overturn the Second Circuit opinion and strike down the New York City rule. The question then becomes how broad the Court's opinion will be. The New York City rule has several levels on which the justices may rule. A narrow ruling would overturn the rule based on its destination restriction, which prohibits premises license holders from taking their handguns anywhere other than an authorized shooting range. A broader ruling could strike down the law because it prohibits these license holders from carrying the handguns in a locked container separate from the ammunition. Such a broad ruling may be complicated by New York's alternate permit schemes -- which include concealed carry permits -- but there may be ways around this, such as a ruling striking down the locked container portion of the requirement only, while leaving the separate ammunition component intact.

There is also the question of how a broad determination of the Second Amendment's protection can make its way into the opinion. My first instinct, from looking at the layout of the Court and -- in particular -- Chief Justice Roberts's likely goal to avoid large changes in the law, is that there will likely be a majority opinion of Roberts, Alito, Gorsuch, Thomas, and Kavanaugh that overturns the law for its destination restriction, and a concurring opinion of the latter four justices that argues that the locked-case / no ammunition restriction is also impermissible.

A less-likely alternative is that Roberts will author an opinion that includes dicta that lays the foundation for a broader Second Amendment protection scheme. This would be similar to the paragraph in the Heller opinion that stated that "longstanding" restrictions on firearms (such as restrictions of criminals' possession of guns and prohibiting firearms in government buildings) were not cast into doubt by the opinion -- a paragraph that was reportedly added to gain Justice Kennedy's vote -- and which formed the basis of many restrictive lower court opinions in subsequent years. I think that an approach with language that leans in the opposite direction and calls for more Second Amendment protections is unlikely, as the most conservative justices will still join in the narrower majority opinion even if they write their own concurrence.

However the outcome may look in the end, it is likely that the Court will overrule the lower decision and, in doing so, hold that the Second Amendment provides at least some level of protection to the carrying of firearms beyond the home. However narrow the opinion is framed, this opinion would significantly broaden the scope of Second Amendment protections, and would likely lead to much more successful litigation against states and localities with strict restrictions on the carrying of firearms.

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:

1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.

2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.

The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:

56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

57. QUIRK is a BULLY.

As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?

AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF(DECLARATORY JUDGMENT)

181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.

182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.

184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.

And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:

G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

 

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.

 

Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

Following "Alarming" Report, New York Bans Pokemon Go for Sex Offenders on Parole

So reports Governor Andrew Cuomo's office in this press release:

Governor Andrew M. Cuomo today directed the New York State Department of Corrections and Community Supervision to restrict sex offenders under community supervision from using Pokémon GO and similar games. In an effort to safeguard New York’s children, the Governor also sent a letter to software developer Niantic, Inc. requesting their assistance in prohibiting dangerous sexual predators from playing Pokémon GO.

“Protecting New York’s children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims," Governor Cuomo said. "These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children." 

At the Governor’s direction, DOCCS has imposed a new condition of parole for sex offenders under community supervision that will prohibit them from downloading, accessing, or otherwise engaging in any Internet enabled gaming activities, including Pokémon GO. The directive will apply to nearly 3,000 Level 1, 2 and 3 sex offenders currently on parole. The Department of Criminal Justice Services will additionally be providing guidance to county probation offices recommending the adoption of this policy. ​

This ban was announced almost immediately after the "Alarming Report by State Senators Jeffrey Klein and Diane Savino Detailing Dangers of Pokémon GO in Exposing New York’s Children to Sex Offenders."  As I noted in a post last Saturday, Senators Klein and Savino's report was indeed alarming -- not because it revealed that the game had actually been subjected to malicious use by sex offenders, but because it revealed the Senators' inability to keep their staff from playing a game in which they capture and battle imaginary creatures.

News outlets report on this ban here, here, and here. Douglas Berman also posts about the ban here and highlights Senator Savino's admission that "there's no evidence to any kids were sexually abused after being lured by the Pokémon app."

It's excellent to see a state government spend so much time and effort combating a problem that has not yet manifested. Additionally, it is fantastic that parole condition prohibits sex offenders on parole from downloading, accessing, or otherwise engaging in "any Internet enabled gaming activities," which would presumably include any game that requires the Internet to play, no matter whether there is any contact or potential contact with other players, both in the real world or cyberspace.

Legislating Via Pokemon Go

The New York Times reports on an awful innovative approach to policy making:

Since its introduction this month, the app known as Pokémon Go has sent millions of players chasing after imaginary creatures in parks, city streets and, occasionally, ditches and trees.

But according to two New York State lawmakers, the game has the potential to lead children to a more frightening locale: the homes of sexual predators.

In an informal investigation by Senators Jeffrey D. Klein and Diane J. Savino, staff members took a list of 100 registered sex offenders across New York City and compared it with locations where Pokémon Go players could collect virtual items or use other game features.

In 59 cases, those locations were within half a block of offenders’ homes. The staff members, who played the game for two weeks, also found 57 Pokémon — which appear on players’ phones as if they exist in the real world — near the offenders’ homes, according to a report the senators released on Friday. Such overlap has been reported in other states, including California and North Carolina.

What is the result of the senators' inability to maintain discipline among their staff members? Why new policy of course! The Times continues:

In New York, those discoveries prompted Mr. Klein, a Democrat who represents parts of the Bronx and Westchester County, and Ms. Savino, a Staten Island Democrat, to propose two pieces of legislation, scheduled to be introduced next week. 

The first would prevent moderate or high-risk sex offenders from playing so-called augmented-reality games — like Pokémon Go — and the second would require the games’ creators to cross-reference their virtual landscapes with lists of offenders’ homes and remove any “in-game objective” within 100 feet of them.

Critics of the law point out that there have been no reports of the game leading to more crime on the part of sex offenders.

Laws targeting sex offenders are unlikely to be met with many challenges, as few groups advocate on sex offenders' behalf. And it is theoretically possible that events may come to pass in which Klein and Savino's fears are realized and Pokemon Go players who stray too close to the homes of sex offenders are victimized.

While I have heard a lot of strange stories about the trials and tribulations Pokemon Go players face, victimization at the hands of sex offenders is not an anecdote with which I am familiar. Klein and Savino's proposals may sound sensible, but they do not appear to prevent any actual harm.

Additionally, the proposal to place restrictions on the game's creators may lead to delays and restrictions on the app's use and availability in New York. While people tend not to care about hardships faced by sex offenders, Klein and Savino may face an unexpected backlash from the nostalgic hipster crowd should their restrictions on the app become law.

Merits of the proposals aside, my main reason for highlighting these policies is the awful methodology that led to their creation. Senators staff members wandered around New York and played Pokemon Go for two weeks. Indeed, here are the last few sentences of the article:

While Mr. Klein said addressing Pokémon Go would be one of his top priorities for the new legislative session in January, he also said his staff members seemed to enjoy researching the report. 

“A lot of them are very good at it,” Mr. Klein said. “They’re really into the game.”

These policies and the "work" leading to their creation are the type of government work straight out of an episode of The Thick of It. Indeed, I suspect that Klein and/or Savino started wondering where their staff members were, and a clever intern came up with the excuse that they were playing Pokemon Go as a form of policy research.

These policy proposals and their development present a rare insight into the process of policy development. I hope that I am not the only one who is appalled that government time and resources are allocated based on staff members' temporary obsession with catching imaginary creatures on their smartphones.

Trial By Combat in New York?

A friend sent me this post by Eugene Volokh commenting on a colorful brief filed by Richard Luthmann, a Staten Island attorney. This paragraph from near the end of the document sums up the attorney's position:

The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

Luthmann is seeking to resolve the dispute through trial by combat, and throughout his brief he goes into great detail about the history of trial by combat in England. He argues that trial by combat is a permitted method of dispute resolution in the United States because trial by combat was legal in England when the original United States colonies were formed, and United States law inherited the English common law of the time. Accordingly, Luthmann argues that under the Ninth Amendment, he has the right to have the case decided through trial by combat.

Full coverage of the case can be found here. Above the Law also summarizes the case here.

While Luthmann may be correct that trial by combat was never officially outlawed in the United States, I suspect that his quest to have his case decided through trial by combat is doomed to fail. Adam Winkler, quoted in this Business Insider article, notes that while the common law inheritance argument may be technically correct, no court would adopt the trial by combat approach. And I suspect that Luthmann's claims of a Ninth Amendment right to trial by combat would run into Seventh Amendment problems were the other party to the suit to invoke the right to a trial by jury, since the Seventh Amendment preserves the right to a trial by jury in civil cases involving a dispute greater than $20.

If Luthmann or another party really wishes to have disputes resolved through trial by combat, a better course of action may be to enter into a contract that states that trial by combat is the agreed-upon method for resolving disputes that may arise under the contract. This is what Raj Shah and I argue in our article, Arbitration by Combat, which was very recently published in the Media and Arts Law Review and which I summarize in this post. I will be sure to announce when the full article becomes available on SSRN, so trial by combat enthusiasts should stay tuned!

Chemerinsky: California Should Adopt the Uniform Bar Exam

Erwin Chemerinsky, noted constitutional law professor and the dean of UC Irvine School of Law, recently wrote this op-ed in the Los Angeles Times. Chemerinsky argues that California should replace its state-specific bar exam with the Uniform Bar Exam used by fifteen states. He writes:

New York's chief judge, Jonathan Lippman, announced last week that the state would adopt the Uniform Bar Exam, a standard licensing test for lawyers. It's the largest state to take this step, which Lippman said could result in a “domino effect.” I hope so, and I hope California will be the next state to fall. The current system, under which each state sets its own requirements and won't recognize out-of-state credentials, is inefficient, burdensome and, frankly, unjustifiable.

Bar exams were rare until the late 19th century. From the late 1880s to the early 1920s, however, the American Bar Assn. waged a successful campaign for states to require a written exam. Traditionally, each state wrote and administered its own test. The purported rationale was to ensure that those admitted to practice law in a given state were sufficiently familiar with its unique laws. 

But the truth is that basic principles of law do not vary from state to state. And lawyers can learn the quirky specifics as they go. Forcing students to memorize detailed, state-specific rules, most of which they will never need to know and which they will promptly forget, does not ensure competence.

Chemerinsky notes the recent move by New York to adopt the Uniform Bar Examination. The New York Times has further reporting on that story here.

In the past, I have implied that bar exams that are not state-specific may not be ideal. There is a push to do away with bar exams in some states, and some of these arguments rely on bar exams not being specific to each state's law. To the extent that uniform bar exams provide fuel for these arguments, I acknowledge that this is one drawback of adopting uniform bar exams, since I am in favor of maintaining some form of a bar exam (although I would be open to considering a national licensing exam, like the one Chemerinksy hints at near the end of his op-ed).

But beyond the minor concern of the Uniform Bar Exam fueling opposition to bar exams in general, I think that Chemerinsky is correct. A great deal of time that I spent studying for the California bar exam involved learning areas of law that were specific to California. I not only reviewed the law of civil procedure, I also reviewed California civil procedure. I not only studied evidence law, I also studied California evidence law. I did not spend time in law school studying California-specific laws, since I did not know whether I would be staying in California after graduation. But had my plans been more set in stone, I likely would have taken some California-specific classes in order to better prepare my self for the California bar exam.

A Uniform Bar Exam would save students time by allowing them to focus only on an area of law, rather than requiring students to also parse out the differences in California's laws. Moving to the Uniform Bar Exam would also save paper. Approximately 70 pages in my commercial outline book for the bar exam were devoted to California Civil Procedure -- a state-specific subject that had never been tested before (and was not tested the summer I took the bar exam). By switching to the Uniform Bar Exam, law graduates would be able to focus their studies more efficiently and not waste time wading through redundancies and exploring areas that have never been tested. Another possible benefit of switching to the Uniform Bar Exam is that such a switch may cut down on the outrageous amount of time grading the exam takes (note the date of July 31 on this post from the third day of the California Bar Exam, and the date of November 21 on the date of this post when the bar exam results were released).

New York's adoption of the Uniform Bar Exam is noteworthy, and I hope that this development will have a ripple effect that reaches the west coast. Even if the California Bar does not want to adopt the Uniform Bar Exam, I hope that it will at least consider taking California's bar exam in a more uniform direction.

How Not to Sue for Defamation (And How Not to Draft a Complaint)

From Deadspin, I learned of a delightful new lawsuit from New York. The Deadspin post's title, "Yankees Fan Caught Sleeping in Stands Sues Everyone for Defamation," sums up the lawsuit nicely.

Here is the video that gave rise to the lawsuit, where ESPN Announcers Dan Shulman and John Kruk (or "Kruck" - according to parts of the complaint) discover and comment on the plaintiff, Andrew Rector:



Through the magic of Scribd, a portion of the complaint is available. I say "a portion" because the document does not include a claim for damages nor does it appear to have a space for the plaintiff's attorney to sign. But even though the document purports to be the statement of facts for the lawsuit, the final paragraphs of the document veer into discussions of the plaintiff's legal theory, so at least something can be said about the merits of the claim. Moreover, CBS reports that the plaintiff is seeking 10 million dollars in damages.

How solid is Rector's claim?

It is Now Legal to Annoy People in New York

The New York Times reports:

The criminal defense lawyer William Kunstler used to say, “This is New York and there’s no law against being annoying.” 

On Tuesday, the state’s highest court appeared to agree, striking down a statute that made it a felony to communicate with someone “in a manner likely to cause annoyance or alarm.” 

. . . 

The case involved Raphael Golb, a 54-year-old Greenwich Village resident who waged a yearslong campaign against the academic rivals of his father, Norman Golb, a Dead Sea Scrolls scholar. Using dozens of pseudonyms, the younger Mr. Golb accused the rivals of ignoring or plagiarizing his father’s work to further their own careers. For added effect, he opened email accounts in the names of some of his antagonists, and wrote messages appearing to confess to wronging Norman Golb. 

. . . 

In striking down the statute on aggravated harassment dealing with speech that was merely annoying or alarming, the judges unanimously ruled that the law was unconstitutionally vague and overbroad. They cited another court’s ruling that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” Mere annoying speech, the lingua franca of many New Yorkers, was not enough.

The New York Court of Appeals took a similar approach to the Indiana Court of Appeals, which also took issue with the term "annoying." As I posted here, in February, the Indiana Court of Appeals struck down a law prohibiting people from harassing or annoying people while drunk in public.

The term "annoy" is a dangerous word to put in a statute, since it is likely to raise vagueness challenges. Whether something is "annoying" is a very subjective question, and this can give a dangerous amount of discretion to those charged with enforcing the law.

Cyrus Vance Jr., the Manhattan District Attorney, criticizes this opinion for striking down an important component of anti-harassment laws. While the impact may have a wide-reaching impact -- especially if statutes are drafted in a repetitive manner -- I think that the court's decision was correct, and that legislators should generally avoid vague terms like "annoying" when they are drafting harassment statutes.

New York Police Routinely Handcuff Shooting Victims: Thoughts From the Medical and Prosecution Perspectives

That is the subject of this article in the New York Times. From the article:

The New York Police Department routinely performs warrant checks on shooting victims. If an outstanding warrant is found, the police generally handcuff and shackle the victim, often for the whole hospital stay, no matter how minor the underlying offense or how grievous the injuries.

“That’s the procedure,” the department’s chief spokesman, Stephen Davis, said, explaining that the “patrol guide says prisoners will be handcuffed at all times.” 

“We’re not handcuffing him by virtue of him being a victim,” Mr. Davis said, referring in general to instances where shooting victims were arrested on minor warrants. “But if he has a warrant, it would require him to be in our custody.”

The Times goes on to provide several examples of this practice, and illustrates the burdens the practice places on gunshot victims.

While I am neither a medical expert, nor a criminal prosecutor, I have had the opportunity to work in both hospital and prosecutorial settings, and I think that the NYPD's uniform approach to this issue is misguided.

News Agencies Cannot Clearly Cover Whether New York Bans Bottomless Brunches

The New York Post reports:

A little-known New York State law prohibits “selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price” according to the State Liquor Authority’s website.

The Post goes on to conclude that restaurants cannot give patrons unlimited alcoholic beverages. For example, "bottomless brunches," where restaurants offer unlimited mimosas for a certain fee with brunch food, are prohibited. Or so the Post claims:

Latin hot spot Calle Ocho on the Upper West Side offers a $15 special that keeps customers swimming in unlimited sangria as long as they have a plate of food sitting in front of them, which is illegal under the SLA law.

Town Hall laments that this is "big government at work." The New Republic tells us that this will prevent people from eating and drinking more than they should. Jezebel warns that serious enforcement is on the way and that "s**t's about to get real."

But wait! Before accepting these conclusions, it might be good to look at the law itself. Here is the relevant provision: N.Y. ABC. LAW § 117-a:

Edwards v. Nicolai: A Possible Follow-Up to Iowa's "Firing-For-Attraction" Case

Last year, in Nelson v. Knight, the Iowa Supreme Court ruled that a termination based on the employer's personal attraction to an employee is not unlawful. Ryan Koopmans summarizes the main points of the opinion and the concurrence here. I had blogged about the case here, noting that I hoped that the Court would overturn the original ruling. This hope turned out to be unfounded.

At the National Law Review, James Ehrenberg writes about the Nelson decision:

We were intrigued by the decision – and we discussed it in this blog – because, at first blush, it seems to be counterintuitive. The assistant was only a threat to the dentist’s marriage because of her sex, right? So wasn’t she fired – at least indirectly – because of her sex? That was our thinking. But the Iowa Supreme Court didn’t see it our way, and we wondered if other states would follow its lead. 

One may soon do so. In Edwards v. Nicolai (Case No. 160830/2013), a Manhattan yoga instructor alleges that she was fired by her boss because her boss’s husband found her to be “too cute.” The yoga instructor’s boss and her husband have filed a motion to dismiss which makes the same basic argument that the dentist made in Nelson. Being fired for being “too cute,” they say, is not the same thing as being fired because of your sex.

Ehrenberg points out that the New York trial court has not decided the case yet. But it will be interesting to see how the case turns out. And if the case ends up going the same way as the Nelson case, it will be interesting to see whether the Edwards court looks to Nelson for guidance.

If You Live in Any of These States, Keep an Eye on the Sky

The BBC reports that the FAA has announced which six states will have test sites for the "testing commercial use of drones."  Those states are: Alaska, Nevada, New York, North Dakota, Texas and Virginia.

Describing the purpose of these test sites, the BBC reports:

The biggest chunk of the expected growth in the commercial drone industry is currently expected to be for agriculture and law enforcement.

Police and other emergency services could use them for crowd control, taking crime scene photos or for search and rescue missions.

It can cost a police department hundreds of dollars an hour to deploy a helicopter, while an unmanned aerial vehicle (UAV) can be sent into the skies for as little as $25 an hour.

Farmers, meanwhile, might find it easier to spray crops or survey livestock with the pilotless aircraft.

I have a few of my own remarks on this.

Notably absent from this list is the state of Colorado.  As I noted in this previous post, Colorado was one of the states applying to have a drone testing site.  This application was not without backlash, with the town of Deer Trail, Colorado proposing an ordinance that would grant drone hunting licenses to residences, and reward residents for shooting down federal drones.

It also looks like the Alaska test site actually consists of several sites, identified by the University of Alaska, with different climates "from Hawaii to Oregon," so people outside of the six states identified in this article may not be entirely free from drone activity.

Finally, I am not sure why Iowa is not on the list.  If the government seriously is considering agriculture as a use for drones, then Iowa would be an excellent place to test this out.  Moreover, Iowa would offer an excellent setting to test drones' abilities to operate in weather that changes drastically over the course of a year.  For these reasons, I think that Iowa could fulfill all of the roles of North Dakota's test site (reportedly to test the "human impact" of drones, and how drones function in "temperate climates").

And while some Iowa cities (like Iowa City) may ban the use of drones, there are still plenty of people that these drones could bother the "human impact" of drones could be tested in other towns like Ames.

Appellate Division in New York Upholds "Computer Trespass" Conviction

The case is People v. Puesan, and the court's opinion is available here.

The defendant was charged and convicted of "computer trespass" among other crimes, when he entered his place of employment while on disability leave and accessed computers in the office.  The court notes the
disability leave policy and security measures the office took:

Tom Allen, Vice President of Security at Time Warner, testified that an employee who is placed on work leave is not considered an active employee; his or her access card is disabled and thus cannot be used to gain access to the company's offices. This policy is announced in employee handbooks provided to employees, and any employee placed on leave is instructed by human resources department personnel regarding that policy. Since the public is not allowed to enter Time Warner Cable's Northern Manhattan office, security guards are stationed outside to ensure that those entering the building have valid ID cards.

Nevertheless, the defendant entered the office and accessed computers, apparently by using a program that generated password keys.  He resorted to this program after requesting the use of a coworker's login and password -- a request that was denied.

The appellate division of the superior court upheld the conviction and held that defendant had gained access to the computers "without authorization."  The court noted that New York's statute defined "without authorization" as "'access of a computer service by a person without permission . . . or after actual notice to such person, that such access was without permission' (Penal Law § 156.00[8])."  The court further clarifies what it takes for there to be access without authorization:

for access to be without authorization, the defendant must have had knowledge or notice that access was prohibited or "circumvented some security device or measure installed by the user"

The court held that the defendant's knowledge that he was not allowed in the building, and his use of the program to overcome the password security violated the statute.

While this case is clear, I feel like it is worth flagging because the court's definition of "without authorization" is relevant to a current debate over the meaning of a similar provision in the federal Computer Fraud and Abuse Act, and could help inform debate on the subject.  

The definition of "without authorization" continues to be a topic of dispute at the federal level, with the case of United States v. Auernheimer in the Third Circuit being a particularly notable example.  Cases like Puesan that clarify the definition of "without authorization" are particularly important, since the definition of this term in the federal context varies widely, depending on the circuit.

(H/T: Yale Law & Technology.)