New Gun Laws Go Into Effect

On September 1st, the majority of the state’s “Concealed Carry Improvement Act” went into effect. Of primary importance is a new Penal Law 265.01-E, which bars firearm possession in “sensitive locations,” which include any hospital, school, library, homeless shelter, house of worship, playground, public park, form of public transit, and a portion of midtown Manhattan in and around Times Square. A new P.L. 265.01-D states that possession on private property and inside businesses is presumed to be prohibited unless signage is posted allowing possession on the premises. The upshot is that under the Act possession is truly only permitted on certain public streets.

The Act also reconfigures the requirements to obtain a license. Anyone with a felony record is ineligible, as is anyone who has a misdemeanor assault, DWI or menacing conviction from within the past five years. Applicants must also disclose their social media accounts. Recertification has also been lowered from every five to every three years, and the age minimum for applications has been raised from 18 to 21 years old.

As expected, there are already a number of lawsuits challenging the Act, including a civil action brought this week in the Western District of New York calling the designation of “sensitive” locations a de facto ban on the right to bear arms.

If you have clients facing firearm possession charges, you should still be filing motions to dismiss in light of Bruen. The Center for Appellate Litigation has issued a new edition of their invaluable “Issues to Develop at Trial” which addresses the new Act. As always, if you have clients facing charges under the new Act, please don’t hesitate to reach out to the Backup Center for litigation support.

Further reading: the NY Times on a record rush for permits across the state, The City on the creation of a “Times Square” gun-free district, and the Attorney General’s description of the new laws.

Post-Bruen Jurisprudence

In spite of ongoing litigation, there are still few New York decisions post-Bruen. In late August the Appellate Division issued a short reversal granting an Article 78 hearing challenging the NYPD’s denial of petitioner’s handgun renewal permit. The court found that “[Bruen] held that denial of a license applications for failing to satisfy New York's ‘proper cause’ standard, under which the applicants had to demonstrate a special need for self-protection distinguishable from that of the general community, was unconstitutional as violative of the Second Amendment to the United States Constitution, which protects an individual's fundamental right to keep a firearm, and the Fourteenth Amendment to the United States Constitution, which makes this right equally applicable throughout the states.” Callahan v City of New York, 2022 NY Slip Op 05057 [1st Dept 8/30/2022].

However, despite the dearth of New York decisions, there are recent cases from Texas and California of some note.

A U.S. District Court in Fort Worth found that a Texas law, very much like New York’s, prohibiting 18 to 20 year olds from possessing a firearm was unconstitutional. Quoting Bruen, the decision states “courts must ‘assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding.’ Stated another way, courts must first interpret the Second Amendment's text, as informed by history. And when the plain text covers an individual's conduct, the Constitution presumptively protects that conduct.” Firearms Policy Coalition, Inc. v McCraw, 4:21-CV-1245-P, 2022 WL 3656996, at *3 [ND Tex Aug. 25, 2022] (citations omitted). Finding no age limitation in “the people,” the Court struck the state restriction.

In California v Diaz, a Sacramento Superior Court struck a California licensing regime that again bears strong similarities to New York’s. After determining that the California statute was unconstitutional after Bruen, the court found that “an individual cannot be prosecuted for exercising a constitutionally protected right,” and “faced with an unconstitutional restriction on his constitutional right, defendant was free to engage with ‘impunity in the exercise of his right…’” (P. 10).

AI “Voiceprints”: Updated Type of “Fingerprints”?

A column in the August 29th issue of the New York Law Journal discusses artificial intelligence (AI) tools relating to voice biometrics, “the unique way in which each person makes sounds and words, resulting in a voiceprint akin to a fingerprint.” The article notes that voice patterning tools, like other technologies such as facial recognition tools, can be hampered by embedded biases when “trained” on narrow datasets. “But,” the article says, “when voiceprint tools are used as individualized biometric identifiers, using a specifically identified person’s voice and creating a ‘print’ of that one voice (versus comparing the voice to a dataset), that print has a high degree of accuracy.” Such voiceprints have potential as surveillance tools and as tools “to create a facial image of the person speaking,” with potential law enforcement applications. AI tools might also be used for reverse purposes, “obfuscating the voice so that an accurate voice print is unavailable ….” The author, Katherine B. Forrest, plans to “discuss relevant Fourth and Fifth Amendment questions concerning voiceprints” in a future article.

Some form of voiceprint evidence has been used, and challenged, in courts for a long time. Discussions about voiceprints can be found in this post on the Constitutional Rights Foundation website and this one on the Owen Forensic Services website. Today, voiceprints are cropping up in unexpected places. A lawsuit in Illinois asserts that several restaurants—Applebee's, Chipotle, Red Lobster, Blaze Pizza, Noodles&Co., and Portillo's—use automated voice ordering systems “that ‘collect, store, and use customers' voiceprints and biometric information’ without their consent,” according to an August 30th post on Yahoo.com.

Other Forensic Science Evidence Discussed

The Center for Statistics and Applications in Forensic Evidence has published the August 22nd edition of its newsletter; several types of evidence are discussed, including Bloodstain Pattern Analysis; Bite Mark Evidence; and Firearm Examination.

People on Probation in Tioga County Monitored Via Phone App

According to a post on WHCURadio.com, the Probation Department in Tioga County is now “using a phone app to keep tabs on people under supervision.” The app is reportedly cheaper than ankle monitors (which can be cut off). A spokesperson said people “risk returning to court if they lose phone signal.” Defenders are asked to let NYSDA know if similar programs are being implemented elsewhere and about any problems with this form of monitoring of people under any type of law enforcement supervision.

Obsolescence of Monitoring Devices Offers Chance for Reform

On August 25th, the Brennan Center posted “A New Path Forward for Community Supervision,” subtitled “The 3G Sunset could be a chance to leave harmful electronic monitoring practices behind.” As wireless carriers shut down 3G networks to focus on faster 4G and 5G networks, many electronic monitoring devices will be affected, it notes. Instead of turning to other more modern high-tech surveillance tools, the Brennan Center says, “local governments and federal agencies should take the opportunity to move away from the invasive and burdensome practice of electronic monitoring.” The piece suggests using tactics shown to reduce harm and increase the likelihood of success for people under supervision. These include “supportive interventions like behavioral therapies, programming, and access to resources ….”

“Mass Surveillance” Via Cellphone Tracking Noted Across the Country

As reported by The Associated Press (AP) on September 1st, “[l]ocal law enforcement agencies from suburban Southern California to rural North Carolina have been using an obscure cellphone tracking tool, at times without search warrants, that gives them the power to follow people’s movements months back in time ….” Wired.com included reference to the AP investigation, as well as one by the Electronic Frontier Foundation, in a September 3rd article that discusses the “Fog Reveal” tool sold by Fog Data Science. The article emphasizes the frequent lack of any search warrant in the use of data pulled “from thousands of iOS and Android apps.” MuckRock (which was heavily involved in efforts to obtain police disciplinary records after the repeal of Civil Rights Law 50-a, as noted in the Oct.-Dec. 2020 issue of The REPORT) has posted a Freedom of Information Law request seeking information on any Fog Reveal contracts with the Port Authority of New York and New Jersey; other requests to police departments around the country for such contracts, for use as templates, are also available.

Mass Exoneration in Brooklyn Due to Past Police Misconduct

The Brooklyn District Attorney asked that nearly 400 convictions be vacated because police officers who were essential witnesses were later found guilty of criminal actions while on duty in other matters. Of the 378 convictions in which dismissal is sought, 47 are felonies and 331 are misdemeanors, mostly low-level drug offenses and vehicular and traffic law matters. The media release announcing the requested dismissals was picked up by nbcnewyork.com and others, including in an article in the New York Times. Yung-Mi Lee, Legal Director of Brooklyn Defender Services’ Criminal Defense Practice, released a statement that commended the dismissals “as one important step towards accountability” but stressed that many lives have been “upended based on the work of dishonest and abusive NYPD officers” and additional reviews are needed.” Lee added that “[m]ore must be done to stop abuse before it happens, ultimately by reducing the scope and power of law enforcement.”

Immunity vs Accountability for Prosecutors and Police

A New York Law Journal article dated September 2nd discusses absolute prosecutorial immunity in civil rights cases. One case highlighted is Anilao v Spota (27 F4th 885), which arose from charges brought in 2007 against 10 nurses, and their attorney, for the nurses’ joint resignation from work at a rehabilitation center in Suffolk County, noted here. In 2009, the Second Department stopped the prosecution in a CPLR article 78 proceeding (as summarized in the March-May 2009 issue of The REPORT); the prosecution of the nurses was found to violate the Thirteenth Amendment’s proscription against involuntary servitude, and the prosecution of the lawyer to violate his rights of expression and association. The recent decision affirmed the dismissal of a federal suit filed by the nurses and attorney under 42 U.S.C. § 1983. The Second Circuit majority said that because the prosecutor was authorized by statute to bring the charges in question, and the trial court had jurisdiction over such charges, the prosecutors were shielded by absolute immunity “even in the absence of probable cause and even if their conduct was entirely politically motivated.” The Second Department’s finding that prosecutors violated the rights of those charged was not enough to lift that immunity. A dissenting judge would find no absolute or qualified immunity on the facts of the case.

Anilao v Spota illustrates the difficulty—impossibility—of obtaining civil damages from a prosecutor who has committed misconduct. This provides support for continuing calls to bring into being the long-awaited Commission on Prosecutorial Conduct. That Commission is discussed, among other places, in the Sept.-Dec. 2021 edition of The REPORT and, more recently, in an episode of the Laura Flanders Show.

Immunity, either absolute or qualified, has protected prosecutors and police for decades. See information from a USA Today project begun in 2021 examining qualified immunity. An editorial on DailyGazette.com on August 23rd calls for ending qualified immunity for police. Currently, lawyers who successfully defend their clients against accusations founded on misconduct must too often admit that victory is only partial, with no recompense to be had for the devastating effects of a wrongful accusation brought in court by state actors.

More on SBS/AHT

In addition to information about the increasingly debunked "Shaken Baby Syndrome" (SBS) noted in prior News Picks, including the August 10th edition, defenders facing prosecutions that include allegations of child abuse by means of shaking may want to look at a September 7th article on AlJazeera.com. It includes reference to a paper released in January, "Preliminary Study of UK Shaken Baby Syndrome cases raises serious concerns." The latter makes this observation: "SBS suffers from an almost-unique attribute – that it is a medical 'diagnosis' that is not itself treated by doctors (the first response may be to treat the SDH [subdural hematoma]) but is rather used to 'diagnose' abuse by a caregiver. In this sense, to substitute SBS with NAHI [non-accidental head injury] or AHT [abusive head trauma] is a retrograde step, since to label injuries 'non-accidental' or 'abusive' it is more overtly a 'diagnosis' of intentional criminality, where the doctor is called upon to invade the province of the jury."

Marijuana Still Being Used As A Factor In Family Separation, Despite New Law

An article in the Sept. 2nd online publication Gothamist suggests that NYC is still seeing marijuana being used as a factor to justify neglect cases and family separation, primarily affecting poor people of color. "Gothamist spoke to a dozen parents, attorneys, advocates, and experts who said they've seen or experienced this firsthand. Half of those interviewed at length were parents who said it has felt impossible to extricate themselves from deeply rooted biases in the child welfare system surrounding marijuana use, specifically toward people of color. Those interviews, along with records from family court cases, suggest marijuana continues to be used both to help separate children from their parents and keep families apart in long-running family court cases." Marijuana use is often not explicitly alleged in court papers. Emma Ketteringham, managing director of the family defense practice at The Bronx Defenders, told the Gothamist, '"[t]hey might be savvy enough not to put it directly in the petition as a charge of neglect. It is absolutely still used to keep parents from their children and to sort of slow down the process of reunification…"'

This despite the Marijuana Regulation and Taxation Act (MRTA) passed in 2021, clearly stating, "the sole fact that an individual consumes cannabis, without a separate finding that the child's physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect." There is also recent caselaw from the first department in Matter of Saaphire A.W., 204 AD3d 488 (1st Dept 4/12/2022), where the court echoed that language, saying, "the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child's physical or emotional condition, is inconsistent with this State's public policy legalizing marijuana, as reflected in the recent amendment to the Family Court Act [citation omitted]". We strongly encourage defenders who are seeing neglect based on marijuana use to contact our family court staff attorney, Kim Bode, at kbode@nysda.org for assistance.

NLADA Announces New Family Court Track For Annual Conference

In what is sure to be welcome news to family defense advocates, who fight on a daily basis to get the family defense movement in the spotlight, The National Legal Aid and Defender Association (NLADA) announced the addition of a Family Advocacy track to its 2022 Annual Conference. Alison Bloomquist, VP of Strategic Alliances and Innovation at NLADA stated “NLADA recognizes that the family regulatory system in this country, rather than protecting families, disproportionately traumatizes poor families in Black, Latinx, and Indigenous communities. As an organization that operates at the intersection of civil and criminal advocacy, NLADA wants to bring together parents, attorneys, advocates, abolitionists, and reformers from across the country to explore avenues for more persuasive advocacy for these families.”

Some of the topics to be addressed include: Helping Non-Citizen Family Defense Clients, Parent Defenders, and Criminal Defense Attorneys Unite!, The Impact of Family Policing, Changing the Narrative of Child Welfare, Tackling the Tough Cases at Family Court (physical abuse, sexual abuse, consolidated TPRs). The conference will be held in person from October 26th – 29th in Arlington, Virginia, and virtually from Dec. 6th – 7th. Those looking for further information should contact NLADA directly.

Association News

Friday, September 30, 2022: Stepping It Up: All-Day Virtual Training

This all-day virtual family defense training program will focus on various aspects of family court parental representation, including cross-examination skills, how to conduct a permanency planning hearing, the effects of marijuana legalization on family court practice, and best practices for representing clients who are not present in court. Joyce McMillan, Founder and Executive Director of JMacForFamilies, will give a special keynote address. The full schedule and registration are available here. Registration is $50 per person.

Questions? Please contact NYSDA’s Family Court Staff Attorney, Kim Bode, at kbode@nysda.org or training@nysda.org.

Save-the-Date

Saturday, October 29, 2022, 9:00 am – 5:00 pm: Criminal and Family Defense Update returns to the Golisano Auditorium at the Rochester Institute of Technology as an in-person live program! Final program details and registration information coming soon. 

Wednesday, November 9, 2022, 1:00 – 2:15 pm: Paternity: Consequences and Considerations, with Sarah Holt, Assistant Conflict Defender, Monroe County Conflict Defender’s Office. This virtual program will provide 1.5 CLE hours in Professional Practice. Additional details and program registration coming soon.

Friday, November 18, 2022, 12:30 – 2:00 pm: Do’s and Don’ts of Family Court Appellate Practice, with Amy Mulzer, Senior Staff Attorney for Law and Appeals, Family Defense Practice, Brooklyn Defender Services; and Saul Zipkin, Supervising Appellate Attorney, Family Defense Practice, The Bronx Defenders. This virtual program will provide 1.5 CLE hours in Professional Practice. Additional details and program registration coming soon.

The 56th Annual Meeting and Conference is expected to return to Saratoga Springs at the end of July 2023, and we are proud to expand our programming to include criminal defense and a new family defense track. More details to come in 2023.