• Category Archives Legal
  • The Real Impact of the NYC Soda Ban’s Well-Deserved Defeat

    Last week, the New York State Court of Appeals—the state’s highest court—dealt a final death blow to New York City’s reviled soda ban. The decision, which upheld two lower court rulings, drew an important line in the sand across which New York City’s activist health department may no longer cross.

    Like the lower courts before it, the high court held that the city’s health department, an unelected board appointed by then-mayor Michael Bloomberg, violated the state constitution by exercising legislative powers it does not possess in order to enact the soda ban. That’s important, because it means that the city’s health department, which previously banned trans fats, for example, may no longer make law and policy choices without prior legislative guidance. The court also ruled that the soda ban was discriminatory in its impact, since many places that sell large sodas, including 7-Eleven, were exempt.

    While the lower courts had ruled unanimously against the ban—first in a one-judge decision, and later in a three-judge appellate decision—the state high court ruling was a 4-2 decision (with one judge abstaining).

    Though, as I note, the majority decision largely reiterates the strong denunciation by the lower courts of New York City’s soda ban, the dissenting opinion issued by the court last week is worth a look for the unprecedented lengths it goes in a failed attempt to justify and uphold the soda ban.

    To do so, the dissent, authored by Judge Susan P. Read, argues that rules adopted by the city health department are on par with state law.

    “[Its] authority to regulate the public health in the City is delegated by the New York State Legislature, and its regulations have the force and effect of state law,” writes Read.

    That’s a positively bizarre argument. After all, state law trump the laws of any one city. Under Judge Read’s theory, the rules enacted by the unelected city health department carry greater force in New York City than those laws passed by the mayor and city council. Effectively, Read would give the health department veto power over all New York City laws that have any bearing on public health.

    While that may sound like a stretch, Read actually embraces this characterization in her dissent.

    “If a regulation promulgated by the Board in the Health Code conflicts in some direct way with a local law, the Board’s action trumps the [City] Council’s,” she writes.

    That’s downright chilling. Under that interpretation, the health department would have the authority to mandate any number of health-related rules by which city residents must abide. The health department could, for example, mandate early bedtimes for New York City residents. The city never sleeps? It does now. And the city council would be completely powerless to do anything about it.

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  • Principal Who Banned Student for “Poptart Gun” CLEARED by School Board (Pussification)


    Unacceptable? This is a recreation of the so-called 'Pop Tart gun' Josh Welch created and which eventually had him suspended. A new report says the school acted properly

    An investigation has found that an elementary school principal in Baltimore who suspended a seven-year-old boy for chewing a Pop Tart into the shape of a gun acted properly in her decision.

    However the boy’s family has lawyered up, and are threatening to take the case further.
    Josh Welch, a second-grader at Park Elementary School, said he was trying to nibble his strawberry breakfast snack into a mountain in March 2013.

    But when it started to take shape he reportedly told his classmates: ‘Look, I made a gun.’

    Principal Sandra Blondell then removed Josh from school for two days.

    Andrew Nussbaum, a lawyer who serves as a hearing examiner for several school systems surrounding Washington, submitted a 30-page report on Monday agreeing that Blondell was within her rights.

    ‘As much as the parents want this case to be about a ‘gun,’ it is, rather, a case about classroom disruption from a student who has had a long history of disruptive behavior,’ Nussbaum wrote in his opinion, according to CBS News.

    ‘Had the student chewed his cereal bar into the shape of a cat and ran around the room, disrupting the classroom and making ‘meow’ cat sounds, the result would have been exactly the same.

    Robin Ficker, an attorney for the Welch family, said that Josh may have had ‘minor’ disciplinary problems, but suspending him was taking the issue too far.
    ‘It seems to me that schools need, with all their expertise and experience, they need to know how to deal with seven-year-old second-graders without putting them out of the educational setting,’ Ficker told CBS.

    ‘They need to deal with them rather than just throwing in the towel.

    ‘If they can’t deal with 7-year-olds, how can they deal with 17-year-olds?’

    Ficker said that he intends to file exceptions to Nussbaum’s report to the local school asking them to rescind the suspension.

    If they don’t, he will file to the state school board.

    If that fails, they will take the case to court.

    ‘I don’t see why this child should be branded in this way,’ Ficker said.

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  • New Jersey: Magazine Capacity Restriction Vetoed by Christie

    Today, New Jersey Governor Chris Christie (R) vetoed A.2006/S.993, sponsored by Assembly Majority Leader Louis Greenwald (D-6) and Senate Majority Leader Loretta Weinberg (D-37). This legislation sought to arbitrarily lower New Jersey’s magazine restriction from fifteen rounds to ten. New Jersey is one of only a handful of states that already has a restriction on the number of rounds permitted. Of course, criminals ignore the law, making such measures completely ineffective at addressing public safety and violent crime. Cities like Camden, Jersey City, Patterson, Newark and Trenton continue to experience high crime rates despite New Jersey having some of the toughest gun control laws in the nation. The state has had a fifteen-round magazine limit for about two decades and it has had zero impact on crime during that time. Yet, New Jersey’s anti-gun legislators were poised to enact more of the same failed policies and continue their attack on law-abiding gun owners in the Garden State.

    The NRA actively worked against these bills during this legislative session and testified in opposition to these anti-gun bills in both Senate and Assembly committee hearings at the Statehouse. We thank the hundreds of New Jersey NRA members who also traveled to Trenton to testify against these bills. Also, thank you to those NRA members who were unable to attend committee hearings and instead made phone calls to legislators and the Governor. Our unified effort made the difference!

    Using the contact information provided below, please call and e-mail Governor Chris Christie to thank him for vetoing this anti-gun legislation and defending the Second Amendment.


    Governor Chris Christie:
    (609) 292-6000

  • George Zimmerman, Media Malpractice, and NBC

    It's funny cuz it's true

    Life in modern America does not get more cruelly perverse than this: one major reason Judge Debra Nelson threw out George Zimmerman’s libel suit against NBC on Monday was because of Zimmerman’s public pursuit of racial justice. Yes, that George Zimmerman, the same “child killer” who shot black teen Trayvon Martin in Sanford, Florida, in February 2012.

    In the way of background, Zimmerman had sued NBC for manipulating the substance of his famous call to a police dispatcher to make him sound like a racist. In firing two employees and apologizing publicly, NBC all but admitted its guilt. What saved NBC a major payout was Nelson’s ruling that Zimmerman was a “public figure.”

    According to Nelson, Zimmerman made himself a public figure by “voluntarily injecting his views into the public controversy surrounding race relations and public safety in Sanford.” He did this a year before the shooting. At the time, Zimmerman worked with the NAACP to launch a public protest over the failure of the Sanford Police Department to arrest the son of a white officer who had beaten a homeless black man

    Unfortunately for Zimmerman, his work on behalf of the homeless man, Sherman Ware, was not nearly “public” enough. I could find no mention of this character-defining event in any NBC report, not even in the book NBC’s legal analyst Lisa Bloom wrote about the case, Suspicion Nation.

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  • CuHomo’s Republican Ally Charged With Lying to the FBI (Birds of a Feather)

    It took just four days after the resignation of State Assemblywoman Gabriela Rosa for another New York lawmaker to be accused of corruption. This time, it’s Thomas Libous, the State Senate’s second-highest-ranking Republican and a close ally of Governor Cuomo. The New York Times reports that Libous and his lawyer son, Matthew, were charged in separate indictments on Tuesday.

    Senator Libous, who represents Broome, Chenango, Delaware, and Tioga Counties, allegedly lied to the FBI about promising to direct business to a law firm in exchange for the firm giving Matthew a job. He also allegedly instructed a lobbying firm to give the law firm $50,000 a year to cover his son’s “inflated salary.” Meanwhile, the younger Libous allegedly failed to report $50,000 in income on three years’ worth of federal tax returns. He’s also charged with failing to report as income $122,784 in personal expenses that he charged to a company where he was a partner. According to the Times, the indictments came as “a surprise” to the senator, even though he was well aware of the federal investigation into his affairs.

    Cuomo, who, the Times notes, is close enough to the Libouses to have attended Matthew’s wedding, recently publicly praised the senator as “a great mentor and a great friend” who represented “the difference between the old Albany and the new Albany.” Though Cuomo was talking about Libous’s willingness to work with Democrats, it still probably wasn’t the best choice of words.

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  • N.Y. top court says cyberbullying law violates free speech

    New York’s highest court said on Tuesday that a law designed to criminalize cyberbullying was so broad that it violated the First Amendment, marking the first time a U.S. court weighed the constitutionality of such a law.

    The 2011 Albany County law banned electronic communication intended to “harass, annoy, threaten…or otherwise inflict significant emotional harm on another person.”

    The law was challenged on First Amendment grounds by Marquan Mackey-Meggs, who at age 15 in 2011 pleaded guilty under the law to creating a Facebook page that included graphic sexual comments alongside photos of classmates at his Albany-area high school.

    The Court of Appeals in a 5-2 decision said it was possible to pass a law outlawing bullying via social media or text message that respected free speech rights, but the county’s statute went too far.

    “It appears that the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying,” Judge Victoria Graffeo wrote for the court, “including, for example, an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult.”

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  • Video Shows Officer Forcing Professor To Ground After Being Stopped For Jaywalking

    An Arizona State University English professor is claiming self-defense against a campus police officer who slammed her to the front of a police car last month.

    Dr. Ersula Ore was walking near campus when she was stopped by an officer while crossing College Avenue near Fifth Street.

    “The reason I’m talking to you right now is because you are walking in the middle of the street,” Officer Stewart Ferrin said in a video recording obtained by KTVK. “Let me see your ID or you will be arrested for failing to provide ID.”

    “Are you serious?” Ore asked.

    “Yes, I am serious. That is the law,” Ferrin replied.

    The professor stated that she was trying to cross College Avenue like several other people around her in an attempt to avoid construction, a police report explained.

    “I never once saw a single solitary individual get pulled over by a cop for walking across a street on a campus, in a campus location. Everybody has been doing this because it is all obstructed. That’s the reason why,” Ore told the officer. “But you stop me in the middle of the street to pull me over and ask me, ‘Do you know what this is? This is a street.’ ”

    Ferrin asked her if she knew that it was street. Before Ore could finish her statement, he demanded that she put her hands behind her back.

    “Don’t touch me,” Ore said. “Get your hands off me.”

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  • CCRKBA Welcomes Police Group’s Support For Pro Gun Laws in Washington State

    The Citizens Committee for the Right to Keep and Bear Arms today expressed gratitude for the important support of a key law enforcement organization for Initiative 591, backed by a coalition of gun rights supporters, of which CCRKBA is a member.

    The Washington Council of Police and Sheriffs (WACOPS) announced it will back I-591 and oppose Initiative 594. With more than 4,500 members in police agencies across Washington State, WACOPS is the state’s oldest and most influential law enforcement organization representing rank-and-file police officers and sheriff’s deputies.

    “This is a major decision by WACOPS,” noted CCRKBA Chairman Alan Gottlieb. “We’ve known I-591 had considerable support among line officers, and this makes it official. We also knew that street cops and deputies do not support the 18-page gun control measure being pushed by wealthy out-of-state and Seattle-area elitists.

    “Support from WACOPS also proves that I-591 is not a scheme to eliminate background checks,” he continued. “Our measure only requires that such checks be done in accordance with a uniform national standard that is not confusing or contradictory to existing state and federal law, without creating a universal handgun registry.

    “Most importantly,” Gottlieb said, “by opposing I-594, WACOPS members recognize that the gun control measure is not only excessive, it poses a burden on local agencies whose budgets are already stretched thin. Police and Sheriff’s departments don’t need to be handed an unfunded mandate crafted by gun prohibitionists with millions of dollars that could be better spent supporting education, training and responsible public safety programs.”

    WACOPS is the second statewide law enforcement organization to support I-591. The Washington State Law Enforcement Firearms Instructors Association also endorsed the measure, and voted to oppose I-594.

    “The gun prohibition lobby pushing I-594 falsely claims to have the facts on their side,” Gottlieb noted. “They not only don’t have the facts on their side, they don’t have the cops on their side, either.”

  • 4 Things You Need to Know If the Police Try To Search Your Phone

    In a rare unanimous Supreme Court decision yesterday, all nine Justices agreed that, yep, searching your phone without a warrant is indeed illegal. So if a police officer ever does try to dig through your digital dirt unlawfully, this is what you need to do.

    The often controversial Chief Justice John Roberts summed the whole thing up with a few delightfully biting lines in the court’s decision:

    The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what the police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

    In other words, the law is on your side, and The Daily Dot put together a nice little primer on how to handle any unlawfully snooping cops. It all boils down to the following.

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  • The PA Attorney General is seeking to void reciprocity for non-resident CCWs (Please Use This Form to Overturn!)

    SCOPE received a request from Gunleaders to alert us of an action pending in Pennsylvania.

    There is a bill that has been filed in PA seeking co-sponsors for general recognition/reciprocity. This alert is being sent to in neighboring States of PA. We are requesting that you immediately request that your members use the pre formatted message which will sent to all the PA Legislators who are possible co-sponsors.

    The Attorney General is seeking to void reciprocity for non-resident licenses to carry in PA.

    This is an extremely time sensitive matter and we ask that you attend to it as soon as possible.

    Please use the link below to send this message:

    Dear Pennsylvania General Assembly Member,

    Over the last year the Pennsylvania Attorney General has been exploiting a loophole in the law and changing reciprocity agreements that affect the rights of both residents & non-residents of Pennsylvania. The actions of the AG in refusing to recognize certain permits or licenses from other states is disrupting my ability to protect myself and my loved ones.

    The scandalous actions of the Pennsylvania Attorney General indicate a disdain for self-defense and the rule of law. This being my perception, I will not visit or take my family to a state that embraces policies that endanger my loved ones and refuses to recognize my right to protect myself & my family. There is a solution to this problem that I encourage you to support now. There is legislation about to be introduced that will alleviate the problem and close the bureaucratic loophole that the current AG is using. This legislation is viewable at: http://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick=20130&cosponId=14921

    Make no mistake; you must act by co-sponsoring, supporting and driving to passage through both House and Senate and see it signed into law, or my family and I will avoid the Commonwealth of Pennsylvania or any product coming from there. I will encourage my friends and acquaintances to do the same until or unless you correct this problem. I look forward to your support in this matter.


    Send the message by clicking here

  • ATF Backs Down on southern border states Gun Sale Reports

    For nearly three years, federally-licensed firearms dealers (“FFLs”) in southern border states have been badgered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) to report sales of two or more rifles to the same person during any consecutive five-day period. Purporting to need this information to stop arms trafficking in and out of Mexico, ATF issued so-called “demand letters” to require indefinite reporting of multiple rifle sales by thousands of dealers, treating the independent FFL businessmen as though they were government employees.

    ATF has no authority to require these reports. Although the Gun Control Act of 1968 authorizes ATF to issue demand letters, these were to be issued only when ATF is investigating certain specific buyers or specific FFLs, and this is how they were used for many years. They were not designed to impose a new permanent reporting requirement on dealers.

    Moreover, in the Gun Control Act, Congress decided to require reporting only of multiple handgun sales, but not rifle sales. However, instead of taking its case to Congress to change the law and enact legislation requiring reporting on rifle sales, ATF took the law into its own hands.

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  • What Does Noel Canning Have To Do With The Second Amendment?

    In the course of reviewing the Supreme Court’s latest decisions, one article I found to be particularly intriguing is law professor William Baude’s “Symposium: What divides the Court, and what unites it.” While the NLRB v. Noel Canning decision turned on a Constitutional analysis of presidential authority and executive over-reach (regarding recess appointments), what struck me about the case was how differently the Court’s two opinions (concurring in judgment) reached their respective conclusions.

    What does Noel Canning have to do with Second Amendment analysis and jurisprudence? Perhaps nothing at all, but consider first Professor Baude’s commentary:

    “Stepping back from the question of interpretive methodology and into a narrower role as critic, I cannot resist making two other observations about the awkwardness of the majority opinion.

    First, because Justice Breyer rejects the textual/original limits on the recess appointment power, he is forced to come up with some other dividing line to explain when a break is too short to count as a constitutional recess. (Almost everybody agrees that it would be absurd to read the Constitution in a way that let presidents make appointments in the middle of the night, or even over a weekend). He comes up with two: “A 3-day recess would be too short.” That is a hard limit, with no apparent exceptions. But then there is a second limit: “a recess of more than 3 days but less than 10 days is presumptively too short” but maybe “some very unusual circumstance– a national catastrophe, for instance” could justify an exception.

    Since the majority has fought its way free from the text, these numbers are fairly arbitrary. The three-day limit has the virtue of matching the three-day requirement in the Adjournments Clause (which limits the Senate’s ability to adjourn without House consent), but it is not at all clear why the Adjournments Clause applies to the Recess Appointments Clause. The real virtue of the number three, from the executive’s point of view, is that it is the shortest plausible number that allows them to solve “the nights and weekends problem,” which is likely why the Solicitor General conceded it at argument.

    The ten-day limit is derived from “historical practice,” and therefore from the accident of when the case happens to have been brought. As Michael Rappaport has chronicled, the executive branch has made recess appointments during shorter and shorter periods as time goes on. Had the Court decided the case decades earlier, it might have picked a bigger number. Had it decided the case decades later, it might have picked a smaller one. Either way, the Supreme Court’s imposition of a ten-day limit has a whiff of magic. (Why not, say, fourteen days? Or thirty or sixty, as Professor Rappaport has suggested?)” (Emphasis added.)

    Now, consider for a moment how the majority’s analysis might be applied to, e.g., firearm magazine limits.

    In spite of significant historical evidence to the contrary, both the Northern District of California and District of Colorado federal courts have found that arbitrary limits on magazine capacity do not violate the Second Amendment. (See, e.g., Br. Amicus Curiae of Pink Pistols In Support Of Plaintiffs’ Motion For Preliminary Injunction at 7 n.7, San Francisco Veteran Police Officers Ass’n v. San Francisco, No. 13-CV-05351WHA (N.D. Cal. Jan. 15, 2014) (discussing historical prevalence of large-capacity magazines; “the 1896 Mauser C/96 could accept a detachable 20-round box magazine, the famous 1908 Luger could accept a detachable 32-round magazine, and the Browning High-Power pistol designed in 1926 came standard with a 13-round magazine.”).

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  • Sheriffs Vow to Appeal Ruling Upholding Colorado Gun-Control Laws


    Colorado sheriffs vowed to appeal Thursday’s ruling by a federal judge upholding the constitutionality of the state’s 2013 gun-control laws limiting ammunition-magazine capacity to 15 rounds and mandating background checks for all gun purchases.

    Weld County Sheriff John Cooke said at a press conference that while the sheriffs respect the judge’s decision, “we believe that it is plainly wrong on the law and on the facts.”

    “We will take this case to the Tenth Circuit Court of Appeals, and if necessary, to the United States Supreme Court,” said Cooke.

    Cooke spoke on behalf of the 55 sheriffs who filed the lawsuit last year after Democratic Gov. John Hickenlooper signed the bill into law in March. The Democrat-controlled state legislature passed the hotly disputed measure with no Republican votes.

    Former Senate President John Morse, who was recalled in September as part of a backlash against the gun-control bills, applauded the court’s decision.

    “Now that a judge has settled this law I hope we can all focus on providing Colorado with the #gunsafety we sought by passing them,” said Morse on Twitter.

    Gun-rights advocates argued that the laws violated their 2nd Amendment rights, but U.S. District Court Judge Marcia Krieger ruled that the Colorado laws weren’t as restrictive as the law banning handguns that was deemed unconstitutional in the Supreme Court’s 2008 decision, District of Columbia v. Heller.

    “As profound as Heller is, it does not stand for the proposition that there can be no permissible regulation of firearms or their use,” said Krieger in her 50-page opinion.

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  • NY DA Employs 381 Secret Orders to Gather Complete Digital Dossiers from Facebook

    Unfortunately, it appears that the lure of bulk surveillance is not just a temptation for the federal government. Last summer, about a month after new leaks exposed the NSA’s bulk content PRISM program, Cyrus Vance, Jr., the District Attorney for Manhattan, decided to go secretly fishing through 381 Facebook accounts, and wanted to ensure no one was allowed to stop him.

    The DA was looking for evidence of disability fraud, and saw Facebook as a treasure trove. Many people put their lives online, sharing their daily ups and downs with a steady stream of photos, comments, and wall posts to friends and family. Perhaps some of them, after claiming a disability, would post a windsurfing selfie or write about their marathon training, and evidence their fraud.

    So the DA put together nearly 400 search warrants, which ordered Facebook to provide near total access to the accounts, and gagged the social media giant from informing the users. Facebook reports that this “unprecedented request is by far the largest we’ve ever received—by a magnitude of more than ten.” According to Facebook’s appeals brief, the targets included a cross-section of America “from high schoolers to grandparents, … electricians, school teachers, and members of our armed services.”

    Facebook’s brief explains that the warrants sought “information that cannot possibly be relevant to the crimes the Government presumably continues to investigate,” including what “Group” people belong to (and who else is in that group), chat messages, private messages, friends list (including removed friends) and even past and future events. And indeed, for the vast majority of the target, the information was not relevant to any crime. Only 62 people were ultimately charged.

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  • NY Appeals Court Won’t Reinstate New York City’s Big Soda Ban (De Blasio & Bloomturd Weep)

    Sugary Drinks

    Big sodas can stay on the menu in the Big Apple after New York state’s highest court refused Thursday to reinstate the city’s first-of-its-kind size limit on sugary drinks. But city officials suggested they might be willing to revisit the supersize-soda ban.

    The Court of Appeals found that the city Board of Health overstepped its bounds by imposing a 16-ounce cap on sugary beverages sold in restaurants, delis, movie theaters, stadiums and street carts. The appointed board tread on the policy-making turf of the elected City Council, the court said.

    “By choosing among competing policy goals, without any legislative delegation or guidance, the board engaged in lawmaking,” the court wrote in a majority opinion. “… Its choices raise difficult, intricate and controversial issues of social policy.”

    Indeed, debate over the soda size cap pitted health officials who called it an innovative anti-obesity tool against critics who considered it unfair to businesses and paternalistic toward consumers. Even a Court of Appeals judge, during arguments earlier this month, wondered aloud whether regulators would target triple-decker burgers next.

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