WUHAN CORONAVIRUS STATEMENT
Our law office is following various necessary procedures to protect clients and employees from exposure to the Wuhan Coronavirus, including:
- Office employees wear face masks.
- Clients must wear face masks, and will be seated at least six feet away from office employees.
- If an employee becomes ill, they will not be permitted in the office.
- Clients who are ill will not be permitted in the office.
- If a client schedules an appointment at our office, and becomes ill before the appointment date, the client must telephone and make a new appointment for a later date. Clients who are ill will not be admitted to the office.
- Clients may be asked at their appointment time if they: (1) Have any current symptoms of illness, (2) Were ill during the past two weeks, or (3) Were exposed to anyone who was ill during the past two weeks. If the answer to any of these questions is yes, the client may not be permitted in the office, and would have to make an appointment for a later date.
- Only the client will be permitted in the office during an appointment. No family, friends or children will be permitted in the office.
- Clients are encouraged to have a telephone appointment rather than a live appointment, if possible. Any documents necessary to be reviewed by our office can be scanned by the client and then emailed to our office at the time of the appointment.
These typed of precautions have become routine with personal service businesses, and we hope that clients will understand and appreciate the importance of such precautions so that we can keep everyone as safe as reasonably possible.
PSYCHOLOGICAL DISQUALIFICATION
Government job applicants can be disqualified from employment for various reasons, including character (honesty and trustworthiness), medical (physical) and psychological (mental). Of all these, psychological disqualifications are the most challenging, and unfortunately, they also can be the most damaging to your future employment if not handled correctly. A psychological disqualification has the real potential to ruin your job opportunities.
Also unfortunate is the rate of psychological disqualification. As example, one New York law enforcement agency has reported that over a 14 year period it psychologically disqualified 27% of all job candidates who were evaluated. So for every 1,000 candidates, 270 were psychologically rejected. But that only is the average rate over 14 years; for 7 of those years the disqualification rate was 30%-34%.
Appealing a psychological disqualification involves a psychological or psychiatric expert witness who provides an opinion about your mental suitability for employment. Commonly, the opinion also highlights any disagreement that the expert has with the agency disqualification.
It is very important that the psychological expert have sufficient experience in the field of related disqualifications. As example, if you are a police candidate then you should obtain the services of a psychologist who has experience with police psychological disqualification appeals.
You also should consult with an attorney who is knowledgeable about your kind of case. Many legal issues arise in the preparation of appeals, and it is very unlikely that you or your psychologist will be able to deal with these properly. The best representation for you will occur when an experienced lawyer and psychologist work together.
PSYCHOLOGICAL REVIEW,
MEDICAL REVIEW &
CHARACTER REVIEW
PSYCHOLOGICAL HOLD,
MEDICAL HOLD &
CHARACTER HOLD
Government employment candidates frequently are told that they are on "review" or "hold." Sometimes this occurs because the agency must gather more information about you before making a hiring decision. However, in many cases review and hold are just excuses to avoid giving any decision. This can happen when the agency does not wish to hire you, but also does not have a very strong reason to disqualify you.
Instead of issuing a disqualification which you can appeal---an appeal which you might win---the agency puts you on review. While on review, your Eligible List gets closer to expiring with each passing day, but you cannot appeal because there is no decision to appeal. In other words, you are left waiting until the Eligible List expires, after which time you cannot be hired.
This is a very abusive government practice, and it destroys your right to use the disqualification appeal process. Most unfortunate is that, by the time some candidates realize what has been done to them, it is too late to get legal help.
You should be in contact monthly with your investigator so that you are up-to-date about your employment application status. If you are told that you are on review or hold, then do not wait more than three months before seeking legal advice. With enough time remaining on the Eligible List, we may well be able to help you get off review or hold. Our office has done this many times for many job candidates.
MEDICAL DISQUALIFICATION &
HUMAN RIGHTS COMMISSION
If you are disqualified for a civil service job based upon a medical condition, you may want to consider filing a complaint with the New York City Human Rights Commission, instead of an appeal with the New York City Civil Service Commission. The main reason for this is that, while the Human Rights Commission process takes much longer than the Civil Service Commission process, your case before the Human Rights Commission could be much more likely to win. Also, a money award may be gotten from the Human Rights Commission, while such awards never are given by the Civil Service Commission.
Before taking any action on a medical appeal, you should contact an experienced attorney to discuss your options and determine which course is the best for your particular case.
NOTICE OF PROPOSED DISQUALIFICATION
& NOTICE OF DISQUALIFICATION
For many years, when a New York City agency wanted to disqualify you from employment, it would issue a "Notice of Disqualification" which could be appealed to the Civil Service Commission. However, this procedure was not correct under the Civil Service Law, which requires that candidates be told in advance why they are going to be disqualified, and be offered an opportunity to argue against a disqualification before it becomes final.
The Civil Service Commission advised agencies some years ago that they were not following the law, and the result is the "Notice of Proposed Disqualification" (NOPD). It notifies you that you have 30 days to ask the agency to "reconsider" the proposal to disqualify. Only after receiving your reconsideration appeal and supporting evidence will the agency then issue you a final decision; usually a Notice of Disqualification.
In practice, all that has changed is that most of what you previously had to do when appealing a Notice of Disqualification, now is done when you receive an NOPD. Instead of appealing a disqualification to the Civil Service Commission, now a reconsideration appeal is sent to the agency first, and after final disqualification you appeal to the Civil Service Commission.
Nevertheless, while only a minor change in procedure has occurred, there is an important consequence: If you wait until the NOPD process is over before getting good legal counsel, you may have hurt your appeal. This is because all supporting papers and other evidence must be presented to the agency during the NOPD process. After that, when the agency issues a final disqualification, the "administrative record" is closed, and any new evidence you try to submit to the Civil Service Commission can be "inadmissible." So if you do not put your best foot forward during the NOPD process—using all evidence and legal resources available—then the case may be defective when it goes to the Commission. Many people learn this lesson late and hard.
In almost all instances, good attorneys can make a case better and stronger than the client could have done on their own. You may understand some of the good evidence in your case, and medical experts should be able to identify relevant medical issues. But almost always, you will overlook helpful legal points, or worse, you will use evidence that actually hurts your case. Also, you might assume that your case is "good enough" to win, and decide that you will call a lawyer only if you lose the NOPD appeal. But by then, the damage has been done. The best course is to contact counsel immediately upon receiving a Notice of Proposed Disqualification, or any other negative notice from an agency.
RIGHT TO OBTAIN PSYCHOLOGICAL FILE
If you are a New York government employment candidate who was disqualified for medical reasons, the New York Public Health Law provides that you have the right to obtain a copy of your medical file from the government agency. As example, a Police Officer candidate denied employment for psychological reasons has the right to get a copy of his psychological file.
Unfortunately, most agencies violate this law and refuse to release file copies to candidates. Usually the file is released only to a doctor who is assisting the candidate with a disqualification appeal, and the government directs the appeal doctor not to give the file to anyone else. That direction is wrong, but many doctors are scared by the warning and will not release the file to the candidate or even the candidate’s lawyer.
Nonetheless, the law is clear and it has been upheld in court. Disqualified candidates have the right to obtain a copy of their medical file, and they can enforce that right by going to court.
PSYCHOLOGICAL INTERVIEW PREPARATION &
PSYCHOLOGICAL EVALUATION PREPARATION
Almost all police and public safety agencies will screen you for psychological suitability, and usually this involves three steps. First, questionnaires about personal history. Second, psychometric tests, including the MMPI-2-RF and Cornell Index. And third, a psychological interview; sometimes more than one.
You can make serious mistakes at all levels. With psychometric testing, the usual mistake is answering questions in a way that you believe will make you look better. But since the tests are geared to measure such "faking good," the result is a test score which hurts you. So the best advice regarding these tests simply is to answer all questions honestly.
However, far more important than test scores is your performance during the psychological interview. The interview is the culmination of the entire psychological evaluation process, and if you do poorly, then your fate is sealed. No amount of good personal history or test scores will compensate for a bad interview. Unfortunately, few candidates know how to present themselves well, and very often make significant errors that lead to disqualification.
Since candidates usually have no experience with psychological interviews, the failure rate is not surprising. And in New York City, the failure rate is higher than the national average. This means that the chance of psychological disqualification is greater than most other places, and many candidates who never imagine that they will be disqualified receive a nasty surprise in the mailbox.
Keep in mind, you do not need to have a mental illness to be disqualified, and disqualified candidates usually have no mental condition at all. What they almost always have in common is that they did badly during the interview.
The good news is that you can be well prepared for a psychological interview, but only if you are counseled by someone who understands the process---such as an attorney with many years experience in psychological disqualification cases. Just like taking an S.A.T. prep course, or a class that teaches job interview skills, you can learn how to handle a psychological interview also. Some candidates who received counseling later remarked about how easy the psychological interview seemed, but how difficult it would have been without preparation.
Do not "cast your fate to the wind" and pray for a good outcome. Maximize your chances of success by being prepared for the psychological evaluation.
ARTICLE 78 PROCEEDING
The New York Civil Practice Law and Rules (CPLR) gives you the right to sue a government agency for various reasons, and many cases involve Article 78 of the CPLR.
An Article 78 proceeding is used, among other reasons, when you want to challenge a government agency decision, or force an agency to do something. As example, when an agency issues a bad decision about you, usually it can be challenged in court under Article 78. Or, the agency might be refusing to issue a decision at all. To force the agency to act, you can use an Article 78 proceeding.
However, you must use all available agency procedures before filing an Article 78. This means that any internal agency appeals, or other available appeals, must be used before going to court. If those procedures are not used, then you lose the right to file an Article 78.
Also, you must usually file the Article 78 proceeding within four months of the final agency determination. This means that once the agency has made its final decision about you, an Article 78 must be filed within four months of the date of that decision.
The four month period is not 120 days, as many attorneys (and even some judges) mistakenly believe. Four months means the same day in the month four months later. As example, if the government notice is dated June 5th, then the four month Article 78 filing deadline is October 5th, not 120 days later on October 3rd. If the deadline month does not have the same numbered last day as the date of the government notice, then the deadline is the last day of the deadline month. As example, if the government notice is dated the last day of December, December 31st, then the Article 78 deadline is April 30th, because April does not have 31 days.
Additionally, if the deadline date falls on a weekend or legal holiday, the deadline is extended to the next business day. As example, if the deadline falls on a Saturday or Sunday, the deadline becomes Monday, unless Monday is a legal holiday, in which case the deadline becomes Tuesday.
Whatever the deadline date, as you can see, the Article 78 filing period only is a few months, and if your case is not filed by the deadline then usually you lose the right to go to court. This is called being "time barred." So it is very important that you contact an attorney as soon as you receive any unfavorable decision from an agency, or as soon as you realize that the agency is refusing to give you a decision. This is so you can find out if any agency appeals must be used, and also to make sure that your Article 78 time deadline is not missed.
PORT AUTHORITY DISQUALIFICATION
Employment disqualifications from city and state agencies in New York routinely are appealed to various civil service commissions. However, disqualifications from public authorities, like the Port Authority of New York & New Jersey, are not covered by the Civil Service Law, and so cannot be appealed. This is because the Port Authority is not an agency of either New York or New Jersey, but an entirely separate entity created by agreement between both states.
The Port Authority acts, essentially, like an independent government, and has vast powers normally exercised only by a state. It is for this reason that such public authorities commonly are referred to as "shadow governments," and the laws which apply to city and state agencies often do not apply to authorities. The result is that job disqualifications from the Port Authority ordinarily cannot be successfully challenged. The only exception is perhaps a rare case of civil rights violation, where a Federal lawsuit might be filed.
However, while Port Authority employment disqualifications usually cannot be challenged, the candidate still has a right to obtain the reasons for the disqualification, which are contained in the Authority’s employment investigation file. As example, a candidate disqualified for psychological reasons has a right to obtain a copy of the psychological file. A demand for the file must be made, and if the Authority refuses to release the file, an Article 78 court proceeding can be used to compel release.
Candidates interested in obtaining such files should contact an attorney as soon as the candidate receives a notice of a Port Authority disqualification.
NEW YORK GUN ARREST
HANDGUN ARREST
ASSAULT WEAPON ARREST
KNIFE ARREST
AIRPORT ARREST
New York weapon laws are different from most other places, and the gun laws truly are terrifying. Your mere possession of a loaded handgun, with no criminal intent at all, results in a mandatory 5-15 year prison sentence upon conviction. Further, almost every case of unlicensed handgun possession now is a felony offense, including possession in the home which formerly only was a misdemeanor.
This is true also for rifle and shotgun possession, particularly if your gun meets the definition of an "assault weapon." Many rifles and shotguns which are legal most everywhere else are considered assault weapons in New York, and the same mandatory sentence applies as with handguns. Additionally, gun magazines are included in the felony category if they can hold more than 10 rounds of ammunition.
Knives too are criminalized in New York, and the knife statute is so vague that carrying almost any knife is chargeable as a crime. In New York City, your carrying even a simple pocket knife can result in arrest.
If you are unaware, you unknowingly can be ensnared by these laws, and many people traveling with guns at airports and by car are arrested regularly. You would be shocked by the severe penalties, and become even more shocked when facing a prosecutor determined to obtain a jail sentence, even though you were not aware of the law.
Your case will require representation by counsel experienced with New York gun and weapon laws, and who understands every argument that can be raised for you against the government. In many cases, not only can police and prosecution errors be used as a defense, but also technical issues regarding weapon specification. A defense attorney must be skilled in all these areas to give you the greatest advantage. If you are charged with violating the firearm, pistol, rifle, shotgun, assault weapon or knife laws, please contact our office immediately.
SAFE ACT APPEAL, NICS AND
CERTIFICATE OF RELIEF
In 2013, the New York Secure Ammunition and Firearms Enforcement Act (SAFE Act) was created, and one part of that law changed the New York Mental Hygiene Law (MHL) to require that certain people be reported to the State. If a mental health professional believes that you are “likely to engage in conduct that would result in serious harm to self or others,” then you must be reported to the State, and once reported you lose your right to own firearms.
Also, when New York puts you into the State MHL reporting system, you will not be able to buy a gun legally, and if you go to a gun store and try to purchase a firearm, the FBI National Instant Check System (NICS) will deny the purchase.
The reporting system has been severely criticized, and rightfully, because mental health providers and hospitals routinely report people who are not a threat to anyone. Doctors and hospitals are frightened that if a person they treat later harms themself or another person, then the doctor or hospital will be blamed for not reporting. And so, people are being reported, and are losing their gun rights, even when they are not dangerous.
The only way to restore your rights is by getting a Certificate of Relief from Disabilities. When that Certificate is issued by New York, FBI NICS then no longer should deny gun purchases. However, the Certificate of Relief process has many steps, and must be completed carefully so that you can have the greatest chance of getting back your rights.
NEW YORK ASSAULT WEAPON LAW BOOK
Mr. Levine's latest book, New York Assault Weapon Laws, has been published by LawTech Publications Company and now is available for purchase. The book contains detailed analysis of the New York assault weapon law, various local assault weapon codes, gun-related terminology, and is heavily illustrated with many photographs. It is a must-have resource for persons interested in this very complex and confusing legal subject.
The book can be purchased by using the order form below, or by telephoning LawTech Publications at 212-482-8830. The cost is $49.95 which includes tax and shipping.
An online review of the book by TheGunMag.com can be viewed at:
http://www.thegunmag.com/real-skinny-new-yorks-vaunted-assault-weapons-laws/
NEW YORK OPMC ATTORNEY
NEW YORK OPD ATTORNEY
MEDICAL LICENSE DEFENSE
MEDICAL LICENSE RESTORATION
PROFESSIONAL LICENSE DEFENSE
PROFESSIONAL LICENSE RESTORATION
Professional misconduct proceedings have become an ever-larger area of legal involvement in recent years. With the increased level of regulation in the medical and other professions, it was inevitable that government agencies responsible for overseeing professional conduct would initiate more regulatory actions. The results largely have been unwelcome in the professional community, for while a few dangerous actors have been removed from the scene, others who have engaged in relatively minuscule acts of misconduct---some unintentionally---have had the full weight of the government fall upon them.
It is most important that affected professionals seek guidance without delay from a professional misconduct attorney in any matters involving OPMC (Office of Professional Medical Conduct) or OPD (Office of Professional Discipline). Misconduct allegations frequently balloon into full-blown investigations, and this activity can be tremendously injurious to the operation of a professional practice. Government investigators rarely are concerned with the business interests of professionals, and will pursue misconduct cases with relentless tenacity. Any who doubt this need only ask a professional who has been the target of such an investigation.
Competent attorneys are available to help medical and other professionals in OPMC and OPD cases, but they are of use only when consulted, and are of most use when consulted early in the process.
RECENT DECISIONS FROM OATH
The following are summaries of recent decisions of the Administrative Law Judges at the New York City Office of Administrative Trials and Hearings.
(Note: Unless otherwise indicated, these are not cases involving clients of Mr. Levine.)
LICENSING
The Department of Buildings brought a proceeding against respondent, a licensed master plumber and fire suppression piping contractor, who was also registered with DOB as a construction superintendent and general contractor, seeking to revoke all of respondent’s licenses and registrations. ALJ Astrid B. Gloade recommended revocation of respondent’s licenses and registrations, finding that he was negligent, incompetent or disregarded applicable laws and regulations in 14 instances, including having 52 percent of his gas authorization requests and nearly 39 percent of his plumbing signoff requests rejected by DOB during a two-year period, and finding that respondent falsely certified plumbing work when he knew it did not comply with relevant law. (Dep’t of Buildings v. Buono, OATH Index No. 1899/18.)
The Taxi and Limousine Commission summarily suspended respondent’s TLC driver license after being notified of her arrest for leaving the scene of an accident causing personal injury. The TLC sought to continue the suspension pending the outcome of the criminal case. ALJ Noel R. Garcia found that the TLC met its burden of establishing a public safety threat and recommended continuation of the suspension. Taking the criminal charge to be true supported an inference that respondent either knew or should have known that she caused personal injury to a cyclist. Further the incident occurred while respondent was driving a TLC-licensed vehicle. (Taxi & Limousine Comm’n v. Farnsworth, OATH Index No. 1198/20.)
The Taxi and Limousine Commission brought a fitness proceeding seeking to revoke a TLC driver’s license because of his positive drug test result for marijuana use. ALJ Kevin F. Casey recommended that the charge be dismissed because respondent proved that he unknowingly ingested marijuana. Respondent presented evidence that he suffered from post-traumatic stress disorder as a result of his military service and respondent’s sister testified that during a dinner at her home less than a week before his drug test she had poured liquid marijuana into his drinks, without his knowledge, in an attempt to calm him down. (Taxi & Limousine Comm’n v. Anonymous, OATH Index No. 1310/20.)
The Taxi and Limousine Commission summarily suspended respondent’s TLC driver license upon notification of his arrest for assault in the third degree and reckless endangerment in the second degree. At a trial requested by respondent, he admitted that he “flung” his cell phone in his wife’s direction, inadvertently causing her injury. ALJ Ingrid M. Addison assessed that respondent’s reckless conduct was the result “of his exasperation at his wife’s incessant probing into what he was doing,” but his testimony was, however, consistent with two contemporaneous narratives in the NYPD complaint form, which used terms such as “accidental” and “reckless,” as opposed to “intentional,” to describe respondent’s conduct. Judge Addison found that, even assuming that the criminal charges against respondent, upon which his license suspension was predicated, are true, petitioner failed to prove that respondent poses a direct and substantial threat to public health and safety. The judge therefore recommended that the suspension of respondent’s license be lifted. (Taxi & Limousine Comm’n v. Ahmad, OATH Index No. 1573/20.)
The City Clerk denied a marriage license application after discovering two licenses had been issued in 1990 and 1995 to an individual using the same name and birth date as the applicant. On appeal, the applicant denied that she was the same person who applied for the prior licenses. The applicant submitted documentary evidence showing she resided in a different location than that listed in the former marriage license applications. ALJ Noel R. Garcia recommended that the marriage license be accepted and processed expeditiously. (Office of the City Clerk v. Marcial, OATH Index No. 1044/20.)
Petitioner established that a licensed taxi driver tested positive for marijuana metabolite. The licensee testified that he had unknowingly consumed cake that contained marijuana at his sister's birthday party. His sister testified that her friend had brought a cake that contained marijuana to her party without her knowledge and produced contemporaneous texts messages showing that the person who brought the cake had been invited to the party. ALJ Astrid B. Gloade credited the testimony of the driver, who held a lengthy and unblemished record as a licensee who has passed multiple drug tests, and found that he credibly established that he had innocently ingested marijuana. Dismissal of the charges recommended. (Taxi & Limousine Comm’n v. Nusret, OATH Index No. 1223/20.)
Petitioner suspended respondent’s taxi driver license after receiving notice of his arrest for unlawful surveillance by use of an imaging device under clothing, a felony. Petitioner asserted that respondent’s continued licensure during the pendency of his criminal case would pose a direct and substantial threat to the public health and safety and sought a finding that his license suspension should be continued pending the outcome of the criminal case. Prior to arraignment, the district attorney’s office declined to prosecute respondent for the arrest charge and excluded it from the criminal complaint. At the summary suspension hearing, respondent moved to dismiss the petition because the prosecutor had disposed of the criminal charge that was the basis for the suspension. ALJ Joycelyn McGeachy-Kuls found that TLC could not continue a driver’s suspension based on a charge that was no longer pending and recommended dismissal of the petition. (Taxi & Limousine Comm’n v. Bajwa, OATH Index No. 1603/20.)
The Taxi and Limousine Commission summarily suspended respondent’s TLC driver license upon notification of his arrest for charges arising from a domestic dispute. ALJ Casey recommended lifting the suspension because respondent proved that he did not pose a continuing direct and substantial threat to public health or safety. Respondent presented credible evidence and corroborating witnesses’ testimonies establishing that his drunken brother-in-law was the initial aggressor and that respondent reacted to aid his sister and her infant children. (Taxi & Limousine Comm’n v. Singh, OATH Index No. 1913/20.)
The TLC brought a fitness proceeding seeking to revoke a TLC driver’s license because of his positive drug test result for marijuana use. Respondent argued that he did not use drugs and tested negative for drugs two months after testing positive. ALJ Noel R. Garcia found respondent’s general assertion that he did not use drugs unpersuasive. The ALJ also found that testing negative for drugs two months after testing positive did not negate respondent's positive drug test. The ALJ therefore recommended that respondent’s license be revoked. (Taxi & Limousine Comm’n v. Breus, OATH Index No. 1293/20.)
PERSONNEL
The Department of Social Services (Human Resources Administration) brought disciplinary charges against respondent, a job opportunity specialist, alleging he committed insubordination by repeatedly refusing to attend mandatory Lesbian, Gay, Bisexual, Transgender, Questioning, and Intersex (“LGBTQI”) training. Respondent testified and identified himself as a Southern Baptist Christian and quoted Bible excerpts that disapproved of homosexuality and insisted that he refused to attend the training because of his religious beliefs, but that he had no problem serving LGBTQI clients. ALJ Kevin F. Casey found that petitioner established a compelling need for the training program, and found that petitioner issued orders to respondent to attend, which he was required to obey, and sustained the insubordination charge. Petitioner sought a 45 day suspension without pay. Judge Casey noted that respondent had no prior disciplinary record and found a 45-day suspension to be excessive and inconsistent with principles of progressive discipline, and instead recommended a 10 day suspension. (Dep’t of Social Services (Human Resources Admin.) v. Aurel, OATH Index No. 1094/20.)
The Department of Health and Mental Hygiene brought an employee disability proceeding pursuant to section 72 of the Civil Service Law alleging that respondent, a school nurse, was unfit to perform the duties of her position due to schizoaffective disorder. ALJ Joycelyn McGeachy-Kuls found that the Department failed to prove that the respondent was currently unfit to perform the duties of a school nurse and recommended that the petition be dismissed. Respondent submitted reports from her psychiatrist and therapist demonstrating that she had been under their care for more than a year, attended regular appointments with each of them, that she was aware of her mental health condition, and she was diligent about taking her medication. Based on the doctor’s reports, ALJ McGeachy-Kuls found that it was clear that respondent was actively engaged in her treatment with each of them. Further respondent’s psychiatrist and therapist both expressed “unequivocally” that she was fit to resume her duties as a school nurse and that she is not a danger to herself or to the students. (Dep’t of Health and Mental Hygiene v. Anonymous, OATH Index No. 2002/19.)
The Department of Environmental Protection brought disciplinary charges against two sewage treatment workers, alleging that they neglected their duty by failing to check that a waste sludge pump was working properly and for falsifying agency records. ALJ Garcia found that petitioner established that respondents failed to check that the waste sludge pump was in operation, when in fact it was off during their shifts, and each respondent falsely indicated on the “Hypo Log” that the pump was working properly. ALJ Garcia recommended a 10-day suspension for each respondent. (Dep’t of Environmental Protection v. Pepe & Weeks, OATH Index No. 1415/19 & 1719/19.)
Respondent, a hospital housekeeping aide, was charged with dereliction of duty, insubordination, and engaging in disruptive behavior. ALJ Noel R. Garcia sustained the dereliction of duty charge, finding the hospital proved respondent failed to clean two pharmacies as directed. ALJ Garcia found that while respondent's questioning of his assignment could be deemed discourteous behavior, such conduct was not insubordination. To the extent the insubordination charge was meant to encompass respondent’s refusal to clean the pharmacies, it was duplicative. Petitioner did not prove that respondent's conduct disrupted hospital operations, as alleged. In line with the principles of progressive discipline, ALJ Garcia recommended a 30-day suspension, taking into consideration respondent’s prior similar conduct. Health and Hospitals Corp. (Queens Hospital Center) v. Khan, OATH Index No. 0001/20.)
VEHICLE RETENTION
Petitioner sought to retain, pending the forfeiture proceeding, a car seized in connection with an arrest as the alleged instrumentality of a crime. During a traffic stop, respondent was ordered by a police officer to step out of his vehicle. Respondent instead drove away and allegedly drove over the officer’s foot causing injury. Respondent was thereafter arrested and charged with assault in the second degree, but pled guilty to unlawful fleeing from a police officer in the second degree. ALJ Noel R. Garcia found that the police had probable cause to arrest respondent, that petitioner was likely to prevail in a civil forfeiture proceeding given respondent’s admission that he defied the officer’s orders to step out of the vehicle and instead drove away, and finally that he presented a risk to public safety with his sudden and alarming actions. ALJ Garcia ruled that petitioner may retain the car pending the forfeiture proceeding. (Police Dep’t v. Ntuli, OATH Index No. 1331/20.)
STATEMENT ON RACISM
Below is Mr. Levine’s statement on racism regarding client representation:
“Over nearly thirty years of legal practice, I have seen many different client reactions to the way that cases are resolved. When clients win their cases, obviously they are very happy. But even when they do not prevail, usually they understand the situation. They can accept that nothing is guaranteed, they did their best, and they are able to move on. However, some clients do not deal with loss very well; either loss of a case, or, being turned down for representation.
My first experience with this happened more than 25 years ago. A man who had served a long prison term for attempted murder telephoned my office seeking representation. He had tried to adopt a child from the New York City Administration for Children’s Services, but due to his criminal conviction ACS denied his application. He called my office because he wanted to sue ACS.
I advised the man that ACS had tremendous discretion to determine if a person was a suitable parent, and that there was no judge in the courthouse that would disagree with their decision. After much time trying, over and over, to explain why he would be wasting his money on a lawsuit, the man said that I was "part of the white power structure trying to keep the black man down."
What I learned in that moment is that no matter how hard one tries to give good professional advice, what one says may not be what someone else hears. It seemed ridiculous to me that anybody would assume that my legal advice and business practices had anything to do with race; why would I want turn away a new client? But if a person has race on their mind, everything they hear goes through that filter, and I have learned since then that there are more than few people with race filters installed as standard equipment.
People usually have substantial reasons for why they think the way that they do, and so I cannot criticize why a person perceives things in a particular way. But, it can present problems; sometimes very big problems. For instance, if a client hears my firm instruction that he be truthful and honest, as if it were an accusation based on perceived racism, then there is a serious problem in the professional relationship. Similarly, a client might be very resistant to hearing advice they do not like. A good example of this is the client who absolutely is convinced that the government treated them in a racist manner, when in fact there is an entirely legitimate explanation (e.g., client claims he was terminated from employment due to racism, but the client has a demonstrated history of employment misconduct).
So while some clients feel that they are victims of racism because of a lawyer’s response to their story, what probably happened is that the client just did not like the lawyer's response, and the client assumed that it was due to racism.
On the subject of government racism in civil service cases, I can say the following: In all my years of practice, almost never have I had a case where a client was denied employment, was disciplined in employment or was terminated from employment based on race. While my own experience does not mean that there is no racism in government operations, it probably means that race-based employment decisions occur far less often than people think, particularly in a place like New York City. And consider that my office has represented many hundreds of clients, and counseled thousands more, for about three decades.
However, what does exist are employment disqualifications based on unfair policing practices that many people believe to be racist. This occurs where the client has a minor arrest record because they were in the wrong place at the wrong time.
Police use various arrest tactics to target high-crime areas, mostly in non-white neighborhoods. Some arrests are random, while in other cases entire blocks are sealed off and police then arrest everyone in sight. (This practice is unconstitutional, but the courts allow it anyway.)
The police have their reasons for such actions, but many people caught in these “sweeps” are falsely charged with a minor offense so that they can be processed through the booking system, creating a database of identities. Ultimately, their cases are dismissed in court, but they are left with an arrest record, and later when they apply for a government job, such as police officer, they are disqualified for bad character.
Of course, this type of job denial is extremely unfair, and it is particularly outrageous to hear a police department defend such a case on grounds that the department did nothing wrong. The government prefers to lie, and protect its false image, than to overlook the wrongful arrest and hire the candidate.
There is a word for that, but it is not racism; the word is dishonest. The candidate is not being discriminated against because of race, but because the agencies do not want to acknowledge their own wrongdoing. That is not racism, it is dishonesty.
Thus, the result of all our experience is that, if someone wants to make an allegation of racism, as with any kind of allegation, there must be proof. Suspicions or feelings alone do not justify an accusation. And there are even court rules under which lawyers and clients can be punished for making baseless claims. So when a lawyer is unwilling to make a claim of racism because there is no proof, it does not mean they are racist. The lawyer is just being a good lawyer.”
A HISTORY OF MODERN
NYPD GUN LICENSE CORRUPTION
In 2018, a government corruption trial in New York Federal Court resulted in the conviction of political fundraiser Jeremy Reichberg. Reichberg had bribed the New York City Police Department to obtain gun licenses for his clients, and in 2019 was sentenced to 48 months in prison. His co-defendant in the trial, NYPD Deputy Inspector James Grant, was acquitted, but the trial still proved that bribes had been paid, and so New York Post editorial writer Eric Sanders correctly wrote, “Acquittal or no, the NYPD has shown it can be bought.”
That criminal case was only one of several that developed from a corruption scandal that became public in 2016 — the worst gun license bribery scheme in the entire history of the NYPD. Yet, it was only the latest in a long line of similar scandals, all emanating from the nature of New York’s gun control system.
HISTORY OF THE LAW
There were no handgun restrictions in New York until the 1911 Sullivan Act, when the carrying and ownership of handguns became licensed. In New York City, licenses are issued by the Police Commissioner through the NYPD License Division, and if the License Division does not believe that an applicant is worthy, it has virtually unlimited authority to deny a license application.
Such a system, in theory, can be enforced fairly, but in reality it is not. Not only is the system Byzantine — the current application form, without supporting documentation, can be more than 20 pages — decisions about carry licenses have been unfair for decades. Many news articles have reported the names of the rich, famous and well-connected who received carry licenses, while average citizens usually could not.
This discretionary scheme invites bias and corruption, and the Sullivan Act was criticized originally for preventing Italian immigrants from getting guns, and for giving special treatment to others. It is no surprise that the system led to favoritism and bribery, and what follows here is just a partial list of wrongdoing:
CORRUPTION SINCE 1970
1970: Police Officer Frank Serpico revealed widespread NYPD corruption, which led to the formation of the Knapp Commission. Among other things, the Commission heard reports that Police were bribed for pistol licenses. In response, NYPD moved licensing from the precincts to Police Headquarters, perhaps believing that the agency could keep a better eye on things under one roof. What was created instead was a convenient one-stop-shop for corruption.
1973: Captain Salvatore Salmieri was suspended without pay for issuing a pistol license to Joseph Sternfeld, the driver of gangster Thomas Eboli, and for lying about the matter. Eboli was the leader of the Genovese crime family for many years, until he was murdered in 1972.
1973: Police Officer Jack Werner was indicted for receiving bribes to “expedite and facilitate” the issuance of pistol permits.
1975: Acting on earlier reports to the Knapp Commission, Special Prosecutor Maurice Nadjari presented evidence to a grand jury that Police Officers and their superiors had received bribes for pistol licenses. Over 100 people were subpoenaed, and the proceeding was interesting, at one point featuring testimony from a stripper who used the stage name “Little Egypt.” However, Nadjari had limited success, and some of the likely guilty parties walked away untouched.
1996: Deputy Inspector Charles Luisi allegedly got hundreds of thousands of dollars in gifts from a gun dealer believed to have ties to the highest levels of the NYPD. State and Federal prosecutors investigated, but whether Luisi exerted influence over gun licenses never was answered publicly. The Department Internal Affairs Bureau failed to file disciplinary charges against Luisi before he retired, but in a later court trial between the gun dealer and his wife, the wife alleged, among other things, that her husband had used his NYPD connections to have her held against her will in a hotel room for three days by Detectives. Luisi was called to testify, but he took the Fifth.
1997: Deputy Inspector Henry Krantz was accused of corruption and his License Division office was raided by IAB. Departmental charges were filed, including that Krantz had given “preferential treatment to individuals or entities” and had been “wrongfully directing” other Officers to grant favors.
Krantz signed a plea agreement, under which he paid a $10,000 fine, was demoted to Captain and was allowed to retire. Even that disposition perhaps was favoritism, because some believed Krantz was not prosecuted to avoid his telling all that he knew. Others involved were transferred to different duties.
2002: Deputy Inspector Benjamin Petrofsky was accused of giving favored treatment to Aerosmith band members who applied for pistol licenses. Petrofsky allegedly did this for VIP treatment at an Aerosmith concert, and a limousine ride to the after-party. Among other things, Petrofsky was accused of personally going to Madison Square Garden to fingerprint the band members for their license applications.
The Manhattan District Attorney examined whether Petrofsky got illegal benefits. Ultimately, he was demoted to Captain and placed on Dismissal Probation.
2016 SCANDAL
The Mother-of-All gun license scandals began after Federal investigators — probing fundraising efforts by supporters of Mayor Bill DeBlasio — uncovered a bribery extravaganza.
In 2016, Federal prosecutors charged businessman Alex Lichtenstein with bribery after he, essentially, bought carry licenses for cash. Lichtenstein reportedly bragged that he got 150 licenses, charging his clients $18,000 apiece, which if accurate would total $2,700,000. One license recipient had a record including domestic violence complaints and a threat against someone’s life.
Lichtenstein pled guilty in 2016, admitting to bribing NYPD Sergeant David Villanueva of the License Division. Lichtenstein was sentenced to 32 months in prison.
Villanueva pled guilty in 2017 to charges that he accepted bribes, and in 2019 was sentenced to 4 months in prison. At his sentencing he reportedly explained that he fell in with a bad element when he joined the License Division.
Villanueva admitted to prosecutors that he helped over 100 people get licenses that never should have been approved, including a person who may have had ties to organized crime. Nonetheless, his vast knowledge of corruption in the License Division made him an invaluable asset, and he became the star witness for the government, with his testimony advancing numerous criminal cases.
One case was the 2018 trial and conviction of former Brooklyn Assistant District Attorney John Chambers. Chambers, who for years billed himself as the top gun license attorney in New York, was convicted in Federal Court of bribery and other charges. He was sentenced to 1 year in prison.
Villanueva also testified at the trial of Deputy Inspector Grant and fundraiser Jeremy Reichberg, where a bombshell inference was raised by Grant’s attorney. The attorney asked Villanueva if he had knowledge about then-Police Commissioner James O’Neill, when he was the Chief of Patrol, intervening to help a former Playboy Playmate obtain a pistol license that previously she had been denied. However, the attorney’s question never was answered as the prosecutor objected, and after a sidebar conference with the judge the matter was dropped.
Yet another NYPD Officer who was charged by Federal prosecutors was Lieutenant Paul Dean, who pled guilty in 2018 to conspiracy to commit bribery. He was sentenced in 2019 to 18 months in prison, a $7,500 fine, and forfeiture of a $1,000 bribe.
In his pre-sentencing memo to the Court, Dean claimed to have knowledge of enormous corruption involving numerous persons, including a scheme that extended pistol license bribery into neighboring Nassau County. Dean alleged essentially that Sergeant Salvatore Mistretta, the former commanding officer of the NCPD Pistol License Section, would grant licensing favors in exchange for similar favors in New York City.
No charges were filed against anyone at the NCPD, however, Dean’s allegations at least partially were corroborated during the earlier trial of attorney John Chambers. In that case, Sgt. Villanueva testified that he used his good relationship with the Nassau licensing office to obtain favors for clients of Chambers. Villanueva also testified that Chambers sent him an email stating, “If we play our cards right, you could potentially be looking at an extra $10,000 in cash in a 12-month period just for being my consultant in Nassau County.”
Other Officers charged at NYPD included Police Officer Robert Espinel, accused in 2017 of conspiracy to commit bribery and extortion. He pled guilty in 2019 to the conspiracy charge, and was sentenced to a year and a day in prison and a $5,000 fine. Retired Detective Gaetano Valastro was charged with conspiracy to commit bribery and is awaiting trial. Also, Police Officer Richard Ochetal pled guilty in 2016 to charges of bribery and conspiracy to commit bribery. In 2019 he was sentenced to time-served, two years probation, 320 hours of community service and a $15,000 fine.
Ochetal received the lightest sentence thus far due to his cooperation with prosecutors, and also because he was the person who initially exposed the bribery scandal. It was Ochetal who in 2016 turned himself in and confessed to various corruption. Among his revelations was that NYPD brass had exchanged official power for favors, including a $60,000 junket to Las Vegas in the company of a prostitute. He also testified at the trial of Deputy Inspector Grant and Jeremy Reichberg.
FUTILITY OF ANTI-CORRUPTION EFFORTS
When Sergeant Villanueva indicated that he fell into a bad element at the NYPD License Division, his description was a historic understatement. Saying that the NYPD contained a bad element is like saying that a tsunami contains moisture. Such an element has existed, on and off, for more than 50 years, and each time it saw an opportunity for enrichment, pockets were stuffed.
In the past, no one ever paid the full price for their greed, but the 2016 scandal was different. For the first time since 1973 there was an indictment, and for the first time ever people went to jail. The NYPD could not just transfer, demote or retire those who committed crimes — they could not sweep it under the rug — because there was a Federal investigation with real teeth, the truth was exposed, and the price was paid for what one Federal prosecutor described as a “period of rampant corruption.”
Would it change anything? Yes, for a while. As in other cases of bribery, the License Division was administratively reorganized, and the public was told that the same thing could not happen again. This has been the usual offering from NYPD when gun license bribery was uncovered, and the first time the agency made such promises probably was around the same time the White Star Line announced that the Titanic was “practically unsinkable.” The NYPD’s assurances have been just as reliable.
Also, in an effort to insulate itself from future corruption allegations, the License Division began the traditional slaughter of the carry licenses, cancelling most of them at renewal time. It is an old tactic which the agency has used after each bribery scandal, employing a version of Stalinist reasoning: Where there is no license, there is no problem. But almost all the victims of this policy are innocent licensees, many who have held their licenses for decades. They are the staggering collateral damage of NYPD criminality, and a symbol of the agency’s continuing indecency.
Regarding the future, no matter what changes have been made, as always they will prove useless ultimately. This is because after the dust has settled, someone who knows someone, who knows someone else, will use those connections to start greasing the system again. The discretionary licensing system provides such fertile soil for corruption, that a strong incentive for bribery always exists, and thus, bribes will be paid. That is, unless the incentive is removed, and there are two ways to do that.
The first is to end the unfair system of discretionary licensing and let people with clean records, and proper instruction, receive carry licenses. But do not hold your breath. New York would rather have endless corruption than let citizens regain their rights, because New York government hates the Second Amendment.
The other way is that the U.S. Supreme Court will decide that the bearing of arms is a right as fully protected as the keeping of arms. In 2008, the Court ruled that keeping arms was a fundamental, individual constitutional right. If the Court extends that reasoning to bearing (carrying) arms, then the discretionary licensing systems in many States will crumble. The Court probably never will rule that gun licensing, alone, is unconstitutional. But it easily can rule that a discretionary system denies Second Amendment rights to many citizens, and thus violates the Constitution.
Until one of these remedies occurs, we need only count the days until the next NYPD bribery scandal.
NYPD INSIDER SAYS GUN PERMITS
DENIED FOR TRAFFIC TICKETS
From THE DAILY CALLER - August 29, 2018
The New York City Police Department’s gun licensing division — according to a former employee with knowledge of the office — pulled back on the number of carry permits the division issues and found more reasons to deny applicants their gun permits.
Following the eruption of a bribery and corruption scandal in the gun licensing division of the city that first surfaced two years ago, five individuals, including now former NYPD officers and a city official have been charged with fast-tracking New York City gun licenses for certain applicants through bribery schemes.
“So now, it’s really swung the pendulum swung the other way, and in a bad way, because now I’m hearing hardly anybody is getting approved for a carry. Hardly anybody,” the source told The Daily Caller. “If anything, they’re getting [limited carrys], if at all, anything.”
Local law enforcement officials say New York Newsday reported last year that more than 100 gun licenses were expedited through these schemes. Two weeks ago, the division’s former second in command, Paul Dean, a former lieutenant for the NYPD, pled guilty to committing bribery. According to The Daily Caller’s former NYPD employee source, not only was that lieutenant “taking money” to fast-track licenses; others in the division were doing so, as well.
“The lieutenant is going to jail. The lieutenant was taking money. The sergeant — they were all selling licenses, allegedly. This [new] guy, here, he’s got a tight rein on the place.”
The commanding officer at the division is Inspector Michael Barreto, who was appointed by Police Commissioner Bill Bratton to head up the office after the scandal broke in 2016.
According to the former NYPD source, Barreto decided the division would begin to deny carry permits based on what he believes to be bad driving records and late child support payments, which Baretto related to “good moral character,” the source said.
“Now, they added a driver’s license suspension check. And now it’s driver’s license summons check. They added the fact that you now have to, at your own expense, supply them a [driver’s] license — to the license division — a lifetime abstract of your driver’s license,” said the former NYPD employee, noting that excessive minor traffic violations are being seriously considered when a gun permit is being issued.
“He added the parking summonses. He added the moving summonses … Now, you have to now explain why you got four summonses or three summonses when you were 19. Maybe you got a speeding summons in Texas.”
The former employee also said the gun division could have issues with a carry applicant if that individual owes at least three months of back child support.
“[Barreto] is making his own rules. He’s making his own laws and the higher-ups are just letting him because they feel it’s better than our previous bad press.”
The Daily Caller sent an inquiry related to the claims made by this former employee to the NYPD’s Public Information Office and is waiting on a response.
PARKLAND DAD ANDREW POLLACK:
'March for our Lives' Made America’s
Kids Less Safe
February 14, 2020
https://www.breitbart.com/2nd-amendment/2020/02/14/
parkland-dad-andrew-pollack-march-for-our-lives-
made-americas-kids-less-safe/
Two years ago today, my daughter Meadow and sixteen others were murdered in the Parkland school shooting. For the families of the victims, it was an unspeakable tragedy. But for others, it was an incredible political opportunity.
The shooting propelled a handful of shrill student activists to fame. The most prominent one, David Hogg, later mused, “We really only remember a few hundred people, if that many, out of the billions that have ever lived. Is that what I was destined to become?”
No, David. My daughter wasn’t murdered so that you could fulfill your “destiny” of tweeting about historically marginalized “indigenous lgbtq women and non binary” gun control activists.
She was murdered because of the failures of the Broward County school district, sheriff’s office, and mental health services. Failures that partisan agitprop, spewed by you and the other March For Our Lives (MFOL) activists, helped to shield from the public eye.
Although I disagreed with the gun control kids politically, I made it a rule not to criticize them publicly. Because I figured that despite our differences, we all wanted the same thing: safe schools.
But the last straw came last month, when MFOL teamed up with the Southern Poverty Law Center to sue the Marjory Stoneman Douglas High School Public Safety Commission, which had investigated everything that went wrong and proposed concrete solutions.
They sued because a meeting adjourned before one of the gun control kids could speak, presumably to denounce the commission for proposing solutions other than gun control.
My first reaction when I heard that was to be surprised that any of the gun control kids even showed up. The Commission had been meeting for a year-and-a-half, and I never saw MFOL take an interest in why their peers got murdered.
After a meeting in August, 2018, the parents of all of the victims stood united to call out the school district’s failures and call on Broward County to elect new school board members. Only one MFOL kid showed up, Cameron Kasky, and he was about to quit the organization.
We tried hard to get David Hogg and his friend, Emma Gonzalez, to take an interest in understanding what went wrong, and holding local officials accountable. Both of them gave me their word of honor that they would support our effort to elect new school board members. The Broward County establishment was trying to smear the families of victims as right-wing reactionaries for demanding answers and change.
One tweet by either of them could have turned the tide of public opinion and helped to deliver justice and accountable for the murdered. But they totally ghosted us. Not even one tweet.
David Hogg told us that he couldn’t endorse any candidates. But that didn’t stop him from endorsing Alexandria Ocasio-Cortez as a “future president” and later endorsing a socialist for a school board race in another school district. For all Hogg’s tweets about keeping billionaires and dark money out of politics, we now know that MFOL was bankrolled by dark money from liberal millionaires and billionaires.
Liberal billionaire Eli Broad gave the group one million dollars. His organization, the Broad Foundation, also trained and celebrated Broward Superintendent Robert Runcie and promoted the leniency policies that he pioneered in Broward, which played a key role in letting the shooter slip through the cracks.
So maybe it was no wonder that Hogg and his friends refused to stand with the parents of the victims. After all, if you’re an ambitious kid who thinks you’re destined for world-historical greatness as a leftist Twitterer, it’s probably not smart to criticize someone your biggest funder supports.
It’s a deep shame, because the local failures in Parkland have major national implications. As Eli Broad’s organization has boasted, the Obama administration took note of Runcie’s “PROMISE Program,” which reduced arrests by 70 percent by giving students three free misdemeanors ever year, and made national policy based on it.
The Parkland school shooting was the most avoidable mass murder in American history. And the Obama administration took the policies that made it inevitable and forced them into school districts across America – including probably your child’s.
For my part, I did everything I could to expose the truth so that parents could learn from the facts and understand what they need to do to keep their kids safe. That’s why I wrote Why Meadow Died: The People and Policies that Created the Parkland Shooter.
But most Americans never heard any of the facts. They just saw a bunch of teenagers, funded by millions of dark money dollars, throw temper tantrums on stage and on Twitter.
Any question of what went wrong or why was quickly stigmatized by a sycophantic media as a “right-wing” thing. And any criticism of those kids’ opportunistic and ridiculous behavior was condemned as somehow beyond the pale.
Still, I never wanted to criticize them. But now that they’ve decided to sue the state commission that found the answers about why their peers were murdered, it’s my turn to “call BS.”
Those activists became nothing more than a crude political tool of the Democrat party. They accomplished absolutely nothing productive. They hijacked the tragedy to register more kids to vote for Democrats. They kept the truth of what went wrong and why out of the national spotlight.
Students across America are less safe because of them.
(Andrew Pollack is a school safety advocate and co-author of Why Meadow Died: The People and Policies that Created the Parkland Shooter and Endanger America’s Students.)
OPINION:
THE DANGERS POSED BY RED FLAG LAWS
Cops and Citizens Could Become Victims of These New Statutes
if Due Process and Other Fundamental Liberties are Violated
Oct 30, 2019
www.policeone.com/officer-safety/articles/opinion-the-
dangers-posed-by-red-flag-laws-ITmhrV5x36djh5Jk/
In the last several years, a number of states have incorporated new laws that allow the police to confiscate firearms from individuals who have been accused of being a danger to themselves or others. The working details of these laws differ from state to state, and the names of the laws do too, but since the conversation has turned toward creating a federal version, it’s been convenient to lump all of them together under the “red flag law” label.
In theory, these red flag laws allow the public to wave a symbolic “red flag” and notify law enforcement of looming problems, but the perceived advantages may be illusory, and the side effects may be worse if they’re not carefully crafted with the necessary protections.
In this article, PoliceOne columnists Dick Fairburn and Mike Wood review key considerations for law enforcement regarding red flag laws.
THE LAW ENFORCEMENT PERSPECTIVE ON RED FLAG LAWS
By Dick Fairburn
We are currently facing a gun control imperative, fueled by several active shooter events, leading to the creation of red flag laws that allow law enforcement to take possession of a person’s firearms if the person is accused of being a danger to themselves or others. When crafted from a law enforcement perspective, these laws can help prevent potential mass killings. However, if the “gun grabbers” get to choose the language, police officers and honest citizens could become victims of these new statutes.
First, some local history. Since 1968, Illinois residents have been required to obtain a license from the state of Illinois to possess firearms or ammunition, a card called a Firearms Owner ID (FOID). That law has always allowed law enforcement officers, through the Illinois State Police Firearms Bureau, to revoke the FOID of someone they deem to be a danger to themselves or others; and to seize that person’s firearms, without any type of hearing or due process. So, the 2018 Illinois Firearms Restraining Order Act actually gives citizens much more protection than the 50-year-old FOID statute, such as an initial hearing (ex parte) and a true (in-person) due process review hearing within 14 days.
Recently, my investigators took a complaint of a local restaurant worker who had been fired for sexually harassing a co-worker and making several threatening statements, like, “I wonder what it would feel like to commit mass murder?” We used Illinois’ new red flag law to obtain a Firearms Restraining Order signed by a judge, allowing us to seize the man’s FOID and firearms (a shotgun and AR-15). At the mandatory follow-up hearing, the judge dropped the restraining order and released the weapons (to the subject’s father until the son could get his Illinois FOID card reinstated, which could take months). This court action proves that red flag laws can be useful to law enforcement and even disarm a potential active shooter. Still, as a strong proponent of the Second Amendment to the Constitution of the United States, our justified use of this new law makes my skin crawl.
Here are three ways I think poorly written red flag laws can cause problems for law enforcement agencies and officers:
1. Legal Requirements and Responsibility
In most states, red flag laws are civil, not criminal. This means the normal prosecutorial system may not assist you. In our recent use of the Illinois red flag law, the county prosecutor did the initial paperwork and assisted with the hearing before a circuit judge but told us the 14-day review hearing was on us, his office would not assist. Luckily, our mayor is a retired police chief and authorized our city attorney to handle legal representation at the review hearing. Like when individual citizens file the request for a Firearms Restraining Order, your agency personnel may have to handle all the paperwork and hearings. And, if the target of the order eventually files a civil suit, that too may be your agency’s problem.
2. Risk at Seizure
Let’s face it, going to an individual’s home to effect an arrest or search/seizure is inherently bad juju, as confronting someone at their lair is a dangerous business. Going to seize citizen’s guns is what resulted in the “shot heard ‘round the world” at Concord Bridge, Massachusetts, in 1775, resulting in the birth of a new nation.
One death has already occurred during a red flag seizure action when the target of a Maryland order answered the door with a handgun and shots were exchanged.
If a subject knows you’re coming for their guns, SWAT-level raids may be appropriate. Some of these folks have an arsenal of weapons and ammunition along with better shooting skills than most cops. Offering a surrender option upfront, or better yet taking them into custody away from their stash makes a lot of sense.
I would like to assume any red flag seizure initiated by a law enforcement agency will be legitimate, like the one we used in our recent threat case. However, the politicization of so many chiefs and sheriffs in “blue” states makes me wonder if red flag laws could be used improperly to silence critics or enforce local gun control initiatives.
After all, some on the left believe anyone who even owns a gun is an inherently dangerous individual and should be forced into mental counseling. A recent survey in San Francisco revealed that more than 20% of those polled felt that membership in the National Rifle Association should be deemed a criminal act.
3. A Tool to Use Against Law Enforcement Officers
Could red flag laws be used against cops? An increasingly common tactic among aggressive divorce lawyers is to have an officer’s spouse claim they have threatened violence to obtain an Order of Protection (OP) against the officer. This makes an officer unable to legally possess a firearm in most states, preventing them from working. This has happened twice in my small department, putting the officer off work until the OP can be nullified or at least modified by the issuing judge. So far, I am not aware of anyone trying to seize an officer’s personal weapons due to an OP, even in Illinois with our onerous FOID system.
Judges tend to issue an Order of Protection almost automatically to ensure they can’t be blamed if something bad should happen. They are likely to issue red-flag orders just as easily. This makes red flag laws a logical next step for attorneys trying to intimidate officers in divorce settlements or custody disputes.
THE PUBLIC PERSPECTIVE ON RED FLAG LAWS
By Mike Wood
Dick expertly pointed out the problems with red flag laws from the law enforcement perspective, but there are additional considerations on the public side. Some of these include:
1. The Elimination of Due Process
As they currently exist, red flag laws allow the state to confiscate property and violate individual rights without the benefit of constitutionally protected due process. Since red flag hearings are conducted ex parte, the subject receives no prior warning that charges are being levied against them, is unable to confront their accuser and is denied the opportunity to defend themselves. Laws like those in California allow the state to delay follow-on hearings for up to 21 days, leaving potentially innocent parties to endure their injuries for extended periods.
This is un-American. Our legal system operates on the principle that all parties are innocent until proven guilty, but under red flag laws, the accused are assumed to be guilty from the start and required to prove their innocence. Worse yet, there is no requirement for compelling evidence before charges are levied – a mere accusation, even unsubstantiated, is enough to trigger the suspension of fundamental civil rights.
2. Risk of Death or Injury
As Dick mentioned, red flag laws introduce a significant risk for law enforcement personnel, but they introduce an even greater risk of death or injury for the public, who lack the armor, backup, training, equipment and tactical advantages of the police. Because the warrants are executed without notice, some citizens will likely arm themselves in response to the pounding and yelling at the door, believing a criminal attack is unfolding. This could easily promote an unintentional armed confrontation with the police, particularly if the police are not clearly identifiable as law enforcement, or the citizen believes they may be criminals posing as police – which is entirely plausible, given the increased use of this tactic by violent criminals, and the fact that innocent people know they haven’t done anything to justify a legitimate police raid.
Mixing nervous, hypervigilant cops and armed citizens is a recipe for disaster. Unfortunately, we’ve seen several incidents where police have shot lawfully armed citizens in these kinds of circumstances, to include during traffic stops, while responding to home invasions, bar fights and active shooters, and while raiding the wrong home by mistake. The proliferation of red flag laws could encourage more of these needless tragedies.
3. No Effect on Curbing Violence
Since red flag laws don’t authorize subjects to be detained or taken into custody, legitimately dangerous people will be allowed to remain free to plan and execute their violent attacks. They retain the ability to obtain other weapons (including another gun), continue their surveillance and planning, and launch their attacks on their victims. Therefore, red flag laws cannot protect the public from mentally unstable attackers or reduce violence, as their proponents claim. Dangerous people won’t be stopped by red flag laws, but there’s a significant risk that innocent and unfairly accused citizens will have fundamental civil rights and liberties violated by the state.
4. Damaging the Relationship Between the Public and Their Police
The natural alliance between lawfully armed citizens and the police could be irreparably damaged by red flag laws. When the public believes the justice system is casually infringing upon – even suspending – core liberties and civil rights, and using the police as their muscle to enforce these abuses, any sense of trust and respect between them is lost. As such, these laws promote division between the police and the citizens that are most likely to be their allies.
CONCLUSION
By Dick Fairburn
In my opinion, red flag orders should be a tool available to law enforcement but VERY difficult to obtain without police participation. This would help prevent the use of this powerful tool for retaliation or intimidation reasons. Similarly, filing a red flag request using false information should be a crime. I also believe the target of the order should have notice and a hearing BEFORE the seizure of weapons, except in the cases of most extreme risk where notification could be dangerous to all involved.
Without pre-seizure due process, I feel these laws are inherently unconstitutional. One article on a pro-gun website recently made the argument that red flag laws violate seven of the original 10 Bill of Rights amendments, plus the Fourteenth.
However, the law enforcement profession rarely has any input into the writing of these politically driven statutes. As always, police officers will bear the risk of enforcing these laws. Unless we join a few of the sheriffs around the country who have proclaimed they will NOT enforce unconstitutional gun laws, we face dangerous times ahead.
About the Authors
Dick Fairburn has more than 40 years of law enforcement experience in both Illinois and Wyoming, working patrol, investigations and administrative assignments. Dick also served as the Section Chief of a major academy’s Firearms Training Unit and Critical Incident training program. He has published more than 300 feature articles and two books: Police Rifles and Building a Better Gunfighter. Dick is currently serving as the public safety director in a central Illinois community, overseeing the police and fire departments, as well as the 911 center.
Lieutenant Colonel (Ret.) Mike Wood is an NRA Law Enforcement Division-certified Firearms Instructor and the author of “Newhall Shooting: A Tactical Analysis”, available in paper and electronic formats through Amazon, Barnes & Noble, Apple Books and the Gun Digest Store. Please visit the official website for this book at www.newhallshooting.com for more information. Mike is a member of the PoliceOne Editorial Advisory Board.
%20-%20Page%201%20JPEG%20Image.jpg)
