Constitutional Brief: Eighth Circuit Continues Erosion of Fourth Amendment Privacy Rights

In United States v. DE L’Isle, No. 15-1316 (8th Cir., June 8, 2016), the federal appeals court for a large portion of the mid-west ruled that an individual has no right to privacy in the information contained on the credit card strip or on the face of the card.

Eric-Arnaud DE L’Isle was pulled over by a Nebraska police officer in 2014 for following too closely to a semi.  The officer stated he smelled marijuana in the car and conducted a canine search, which indicated the presence of controlled substances.  The subsequent search produced no drugs, but the officers did find a duffel bag containing “a large stack of credit, debit, and gift cards” in the trunk.  Only about 1/5 of the cards had DE L’Isle’s name on the front.  The cards were seized at the stop and then scanned by the U.S. Secret Service, which discovered that the magnetic strips on the cards were either blank or contained American Express account information.  Needless to say, none of the information on the magnetic strips was associated with any legitimate account of Eric DE L’Isle.

According to testimony from fraud investigators and U.S. Secret Service agents, the magnetic strip on the back of a credit, debit, or gift card contains up to three lines of information.  The first two are omnipresent and consist of the account number, expiration date, and cardholder’s name.  The third line is discretionary based on the issuing entity, but can contain a particular identifier.

DE L’Isle argued that the search of the strip constituted an invasion of his 4th Amendment right against the unreasonable search or search of his personal papers and effects.  Under existing federal and Supreme Court precedent, this type of claim (contesting whether the search was reasonable) rests on a person’s actual expectation of privacy and on society’s expectation of privacy in the particular situation.  In this case, DE L’Isle would need to show that he actually expected his credit card strip information to be private and that society had the same expectation.

The Court expressly rejected his claim that he had an actual expectation of privacy.

Mr. DE L’Isle “could not have had a subjective expectation of privacy in any of the . . . cards because the purpose of a credit card, debit, or gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.”  Thus, the user of the card “knowingly discloses the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”

Mr. DE L’Isle’s subjective expectation was irrelevant, however, as the 8th Circuit panel found that “this alleged privacy interest is not one society is prepared to endorse.”  In a rather broad definition of what is considered to be public, the court found that “any member of the public may see” the information on an individual’s credit card, so the information was therefore considered to be public.  (The dissent in the case focused on factual issues, rather than the general privacy issues).

While no one should have any particular sympathy for an individual who was, according to the evidence, clearly intending to engage in a substantial amount of identity theft and credit card fraud.  Simply stated, Mr. DE L’Isle belongs in jail.  The problem arises in how he ended up there and the implications for individual rights that the court’s needlessly broad analysis casts.

The courts (the 8th Circuit here is only the latest example) have fundamentally misunderstood the 4th Amendment.  The protections of the 4th Amendment apply solely to the government (we have criminal statutes to prosecute violations of privacy from individuals against other individuals).  Thus, it is entirely irrelevant to a proper 4th Amendment analysis that DE L’Isle offered the information on the card to a merchant.  The information on a credit card is inherently private and, generally speaking, individuals only offer that information to a select group of other private entities: merchants and financial institutions who are prohibited from releasing the information to the general public.

Indeed, the crime DE L’Isle is accused of is stealing other individuals’ information.  If there is no privacy interest in this “public” information, then what, precisely, is the criminal behavior DE L’Isle was prosecuted for and convicted of?  At the time of the search, there was no indication that DE L’Isle actually used the cards or stole any money – he was merely in possession of what the courts apparently view as public information.  The government’s criminal charges belie its arguments before the 8th Circuit.

Despite the 8th Circuit’s ruling, credit card information is private information.  Entire industries exist to protect that information from other individuals, much less the forcible seizure of that information by the government.  Class action lawsuits have been initiated against major companies for negligent handling of information that resulted in hacking.  To say that credit card information – even “just” the account numbers – is flawed, to say the least.

Thus, not only did DE L’Isle demonstrate an intent to keep the information private (he kept the cards in a duffel bag and/or wallet to keep them from the view of the general public – and police), but society does, quite obviously, expect credit card accounts, expiration dates, the connected names, and particular identifiers to be kept private.

The courts’ rulings on this issue have been frightening and dangerous, to say the least.  An individual’s release of private, personal information to another individual does not, by any stretch of common language or common sense, indicate any intention to make that information public.  The court’s interpretation means that any disclosure – to anyone – of information is no longer considered private and, as such, is subject to search by the government without a warrant.  This is not hyperbole, but the language of the court: DE L’Isle “knowingly disclose[d] the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”

Simply stated, the courts have been on a dangerous trend that dismissed the need for a warrant where it is evident that a warrant would likely have been issued.

This case is a prime example: large numbers of credit cards without the individual’s name on them stored in a duffel bag in the truck almost guarantee the probable cause needed to obtain a warrant to both seize and search everything in that car, much less the particular cards and their information.  Law enforcement only needed to apply for the warrant and there was no exigency demanding immediate action: DE L’Isle was in custody and therefore not putting any more charges on the cards.  Knowing the information on the card several hours sooner would not particularly help the victims, either.

The purpose of the exclusionary rule (suppressing illegally obtained evidence) is to discourage law enforcement from obtaining evidence improperly.  If the police and prosecutors are confident that their convictions will be overturned when the evidence is improperly gathered, the theory is that they will be more constitutionally careful.  Conversely, when law enforcement is comfortable that the court is more interested in upholding convictions it believes are worthy than upholding the Constitution, then they will be less inclined to be concerned about the procedural safeguards offered by the Constitution.

This case is a perfect example of the latter: DE L’Isle was probably engaging in counterfeit.  However, the evidence used to convict – the information gathered on the magnetic strips was not DE L’Isle’s – was not properly obtained, even though law enforcement easily could have obtained a warrant once they had possession of the cards (which was almost certainly obtained lawfully, at least according to the facts as outlined here).  At the end of the day, the courts here chose to uphold a particular conviction, rather than the Constitution.

 Thompson Law Offices is dedicated to the protection of civil rights, the natural rights and liberties of the individual, and the Constitution.  If you believe your rights have been violated, call (888) 866-6947 for a FREE consultation.

Thank You to the “Greatest Generation” on the 72nd Anniversary of D-Day

Seventy-two years ago today, over 150,000 U.S. and Allied troops landed on the beaches of Normandy and in the French countryside. Almost 5,000 were killed, including 2,500 Americans, on June 6, 1944. Another 50,000 would be killed in the Battle of Normandy when it was all over.

They fought against tyranny, oppression, fascism, and socialism on behalf of the free world (and the formerly free world). Ultimately, the Allied invasion of Nazi-occupied France resulted in the liberation of Europe and the discovery of the atrocities committed by the Nazis.

The men who stormed the beaches, jumped into the darkness of the French skies, and pushed forward into France, Belgium, and Germany left behind their families, their jobs, careers, education, farms, their lives. Many ultimately gave their lives for the defeat of tyranny and preservation of liberty and freedom. At home, those who remained behind continued their lives as best they could and many assisted in the war effort behind the scenes, providing machinery, weapons, food, and moral support to the troops, and continued to make America run.

Thompson Law Offices, LLC offers a humble “thank you” to the generation that preserved freedom and stability for the greater part of the 20th Century.

Clearing Your Name 101

Having a criminal record can seriously complicate your life.  It doesn’t matter if the conviction was for something small or a very long time ago.  The government can restrict certain rights (such as the right to keep and bear arms) and employers often pass over applicants with a criminal record.  Fortunately, in New Jersey, there’s something you can do about it.

Am I Eligible for an Expungement?

New Jersey law allows an individual to expunge his or her criminal record, so long as the individual meets certain requirements.  If you have been convicted of a crime (without any prior or subsequent convictions), and have not been convicted of more than two disorderly persons offenses, you are eligible for an expungement after ten years have passed from the date the sentence was completed.  If you were jailed for the crime, this means that you must wait ten years from the date you were released; if the punishment was a fine, then the time period expires ten years after you paid the fine.

If you have been convicted of more than two disorderly persons offenses, you are not completely prohibited from getting an expungement, but it does complicate things.  According to New Jersey law, the “nature of those . . . convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they . . . constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.”  N.J.S.A. 2C:52-2.  Thus, a court appearance will be necessary if you have several offenses on your record.

What Does An Expungement Do?

New Jersey’s definition of “expungement” is: “The extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.”  Criminal complaints, warrants, arrests, commitments, fingerprints, photos, index cards, rap sheets, and docketing records are included within the definition.

This means that the documentation of your arrest and convictions will be taken out of your file and physically separated.  However, law enforcement may still be able to access your expunged record in order to determine whether you are eligible for supervisory treatment or a diversion program, in order to determine if you had a prior expungement, in setting bail and determining correctional facilities, and in some other limited instances.

An expungement does not automatically clear the records of privately operated background check companies.  Several credit check companies and databases include this information, as well.  In order to clear your record as completely as possible, it is necessary to contact these companies and provide the necessary documentation to remove your name from the databases.  Thompson Law Offices includes this secondary step in all of its expungement cases for no extra charge.

Can I Own a Firearm After an Expungement?

Yes.  The Application for Firearms Purchaser Identification Card, required to purchase a firearm, specifically excludes expunged crimes from the questionnaire.  It does not, however, exclude domestic violence crimes involving “striking, kicking [or] shoving,” purposely or recklessly causing (or attempting) bodily injury, or negligently causing bodily injury with a deadly weapon.  Thus, if you have been convicted of a domestic abuse crime that involved bodily injury, or attempted bodily injury, you must still answer “yes” to the question on the firearms application.

Can I Expunge Charges That Were Dismissed?

Absolutely.  If the charge was dismissed (or you were acquitted), then you are eligible to have those charges expunged.  While there is a filing fee to file a petition to expunge convictions, there is no filing fee for petitions to expunge dismissed charges or acquittals.  The expungement will have the same effect as that of a conviction, and will isolate all paperwork related to your charges.

If you have a criminal record and wish to discuss your options, call Thompson Law Offices, LLC to set up your FREE CONSULTATION at (888) 866-6947 or email the office at Inquiries@TLawLLC.com.

Firearms Law For Reenactors: School Presentations

I’ve been a reenactor since 1997.  One of the most rewarding experiences is being able to take a love of American history and share it with the general public.  Sometimes the opportunity presents itself at a reenactment at a state park, or a living history at a National Military Park.  School presentations, however, present a great opportunity for reenactors to bring a love and knowledge of history to the classroom and demonstrate to younger generations that the history being taught in their textbooks was once the present – alive, exciting, and quickly unfolding.

Unfortunately, there can be major legal hurdles to bringing history into the classroom.  Often, the educational programs brought into the schools revolve around a war, particularly the foundational wars: the American Revolution and the Civil War.  This means that various types of weapons will ultimately be brought into the school.  Given the current climate involving schools and weapons, most schools and police forces enforce zero tolerance for weapons on school grounds, taking no chances that the authorities might inadvertently allow a firearm onto school property.

There are, however, exceptions that allow for these school presentations in New Jersey (see a later post regarding Pennsylvania).  Under N.J.S.A. 2C:39-5(e), bringing a firearm onto school property without the proper permission is a crime of the third or fourth degree, depending on what type of weapon or firearm he or she possessed.  Even imitation firearms can land an individual with a disorderly persons offense.

This means that a violation can result in 3-5 years in prison (for third degree crimes) or up to a year and a half (for fourth degree crimes).  Disorderly persons offenses can result in up to six months in the county jail.  A third degree conviction will automatically result in a prohibition on the carrying of firearms under federal law (other convictions may prohibit, as well, under state laws).

You might be at risk for other violations, as well, such as possessing a firearm without a Firearms Purchaser’s Identification Card “FPID”).  Unlike some states, New Jersey does not distinguish “antique firearms” from their definition of “firearm.”  Thus, a reproduction or original 1861 Springfield, Lorenz, or Sharps (or even a Brown Bess or Charleville) is considered a firearm under New Jersey law and requires an ID to carry it.  Not having the FPID might aggravate any other charges, as you would now be violating two firearms laws on school grounds.

Likewise, bayonets, pocket knives, blackpowder, minie balls, etc. all constitute prohibited items.  Many reenactors and reenacting organizations do not consider some of these ancillary weapons (even a tent stake might constitute a weapon).

Obtaining the proper permission from the school is vital.  Thompson Law Offices, LLC can provide you with guidance even if your organization already has forms in use.  Remember that even if your organization has been presenting to a particular school for a long time, administrations change, in both the school and police force, and just because one administrator was comfortable with the forms does not guarantee that the forms were properly drafted or completed.  This has the potential to open up the organization and its members to both criminal and civil liability.

Likewise, if your organization does not currently have any forms or procedures for securing the proper authorization from the school, Thompson Law Offices can provide you with the necessary forms and guidelines to obtain the authorization for you and your members.

Call today for a FREE CONSULT at (888) 866-6947, or e-mail questions to Inquiries@TLawLLC.com.

Opportunity to Change NJ Carry Permit Laws: Assembly Bill 2955

On February 16, Assemblymen R. Bruce Land and Bob Andrzejczak (both of District 1 in Atlantic, Cape May, and Cumberland Counties) introduced a bill into the Assembly, No. 2955, which they’ve entitled the “Citizens’ Protection Act.”  The bill provides amendments that would make it realistic for a law-abiding individual to obtain a carry permit in New Jersey.  Because the legislation is new and the issues important, at the end of the post, you’ll find links to a map of New Jersey’s Assembly districts and a list of members of the Assembly and their contact information.

New Jersey is notorious for having some of the strictest firearms laws in the country.  Perhaps the most public aspect of this has been the “justifiable need” provision in the application process to obtain a permit to carry a handgun.  As the law currently stands, the individual seeking to obtain a permit must demonstrate justifiable need, which has been defined by the state courts to mean 1) “specific threats or previous attacks” that 2) “demonstrat[e] a special danger to the applicant’s life that cannot be avoided by other means.”  In re Pantano, 60 A.3d 507, 510 (NJ Super. 2013) (Emphasis added).  Thus, to get a carry permit in New Jersey today, you must have already been threatened or attacked and a carry permit must be the only way you can protect yourself.

While the law holds no liability against municipalities for failure to protect an individual, most police officers will tell you that they view it as their duty to protect individuals against crime; while there are some notable examples to the contrary, this is true in most cases.  However, as rightly noted by many firearms experts, life-threatening situations such as muggings occur very quickly and often there is no chance to even call police, much less time to wait for their arrival, no matter how quick it may be.  Likewise, mass shootings often occur quickly and, by design, as a surprise to the victims.  Thus, the bulk of the damage is done before police have an ability to arrive and assess and control the situation.

Despite the serious constitutional questions as to New Jersey’s firearms permitting statutes, the federal courts have been content to let them stand.  In a very recent case, the Third Circuit Court of Appeals held that it could not say with certainty that there was any right to carry a firearm outside the home inherent in the Second Amendment. See Drake v. Filko, 724 F.3d 426 (3d Cir. 2013).  In Drake, the plaintiff had been approved for a carry permit by the local police chief, but when he applied to the Superior Court, the State Police objected to the permit.   The Superior Court agreed with the State Police and denied the permit.  That decision was appealed to the Third Circuit, which then held that the U.S. Supreme Court precedents – D.C. v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010) – applied strictly to the home (which is a very, very strict and selective reading of those cases).  The plaintiffs then appealed the Third Circuit’s decision to the U.S. Supreme Court, which ultimately declined the hear it.  With the death of Justice Antonin Scalia, is remains unlikely that any substantial changes to firearms laws will occur in the near future.

All of which makes this bill so important for individuals who desire to carry firearms.  Assemblymen Land and Andrzejczak begin the bill with a series of whereas clauses, in which they accurately state that the courts have found that the police have no affirmative duty (either federally or under state law) to protect an individual citizen. See Wuethrich v. Delia, 382 A.2d 929 (N.J. Super. 1978) (“Municipalities are expressly immunized from tort liability for the failure to provide police protection or the failure to provide sufficient police protection”).  (It should be noted that under Federal procedure, a plaintiff sues the municipality in police force liability cases, rather than the police force, itself.)  In addition, the Assemblymen spell out the New Jersey constitutional provisions under which citizens have a liberty interest in self-defense.

This bill removes “justifiable need” from the statutory language by deleting the provision from N.J.S.A. 2C:58-4(c) entirely.  By removing the justifiable need requirement, the burden would no longer be on the individual seeking the permit, but on the State if it intended to deny the application.  Because Pantano interpreted the justifiable need statutory language, that holding would, in essence, be statutorily overruled.

In tandem with justifiable need, the proposed legislation removes the requirement that an applicant take an approved application before the Superior Court.  Currently, under N.J.S.A. 2C:58-4(d), the Superior Court may then reject the application (even though it has been approved by the local police chief) if the applicant’s character is found to be in question.  Indeed, many of the precedential cases on New Jersey’s firearms permitting scheme involve denials by the Superior Court after initial approvals at the local level.  The Citizens’ Protection Act would completely remove this step in the application process.

Firearms owners will also be excited to learn that the bill would explicitly prohibit the State from recording handgun serial numbers and descriptions when granting the permit, nor would it allow the Superintendent of the New Jersey State Police to include additional provisions as part of the application process.

The new application process proposed by the bill would be as follows:

  1.  The individual must provide 2 frontal photographs taken within 30 days of the application;
  2. Take a training and safety course, evidenced by a certificate of completion attached to the application;
  3. Verification by the applicant that the information provided is accurate (which replaces the requirement of witnesses to the signature).
  4. $20 application fee.

The permit would also be valid for 5 years, rather than 2, and place the burden on the State to demonstrate that the individual is not eligible, rather than requiring the individual to prove to the State that he or she does not run afoul of any of the eligibility requirements.  Anyone who is a U.S. citizen 21 years or older, has not been convicted of a felony (including certain juvenile delinquencies); has not been convicted of a domestic violence misdemeanor; has not been convicted of a drug crime in the 5 years prior to applying; does not have a physical or mental health defect that prevents them from safely possessing the firearm*; is not subject to a restraining order for domestic abuse; is not on the Terror Watchlist;  and has not been an alcoholic or addict within the same time period, would be eligible, assuming they pass an 8 hour training course.

Other provisions of note include the amendment of N.J.S.A. 2C:39-2(b), which provides that an individual found to be in possession of a firearm in a vehicle in New Jersey “shall be presumed that he does not possess such a license . . . until he establishes the contrary.”  This means that the law currently grants a legal presumption of the presence of an element of guilt to the State of New Jersey in certain criminal cases.  This bill would delete this language entirely.

Then the bill tackles the carry permit scheme.  It begins by deleting N.J.S.A 2C:58-3(c)(5), which prohibits the issuance of a carry permit to someone in cases where it is considered to be against the public’s health or safety.  Given the other reasons why one may be denied a permit, this particular provision is not only superfluous, but dangerously vague, in that it serves as a fallback provision upon which to deny someone otherwise eligible.  The bill also removes any special provisions for armored car personnel, applying a uniform standard to all applicants.

If you are interested in the constitutional right of citizens to defend themselves against threats, wherever those threats might occur; disappointed (to put it mildly) in the current state of New Jersey’s firearms statutes; or want to get a carry permit in New Jersey for any other legal reason, this bill would greatly increase your ability to do so.

Thompson Law Offices encourages the participation of the individual in both the legal and political system.  If you wish to get involved, you will find links to a map of the Assembly districts and contact information for your representatives below.

Map of New Jersey Assembly Districts

Contact Information for Representatives

* If you have been involuntarily committed for mental health evaluation in New Jersey or Pennsylvania, you are invited contact our office for a free consultation.  You may have the ability to expunge the commitment.  An attorney will be able to advise you as to the effect an expungement may have on your ability to possess or carry a firearm.

Fields/Geraci v. Philadelphia: No right to record police in Pennsylvania

The Eastern District of Pennsylvania recently released a decision in the combined cases of Fields v. City of Philadelphia and Geraci v. City of Philadelphia.  Both of these cases involved the constitutionality of recording police officers performing their duties in public places.  At the end of the analysis, the Court held that there is no First Amendment right to record police officers without some form of criticism involved.  The decision is unfortunately dangerous on both a practical and a theoretical level.

In order to understand the context in which the decision was made, it is necessary to understand the parameters of the First Amendment, at least as defined by the various federal appeals courts, including the U.S. Supreme Court.  In essence, the First Amendment’s protection of speech (only one of the various rights protected in that Amendment) also applies to “expressive conduct.”

Expressive conduct is activity that can reasonably be viewed as promoting an idea or expression.  Thus, flag-burning, picketing, the wearing of an armband, etc. can be deemed “expressive conduct” because they intend to relay a political point of view through conduct.  Because the plaintiffs here did not issue verbal political statements, the Court used the “expressive conduct” analysis.

In Fields and Geraci, the Court found that there was no expressive conduct.  In the Fields case, the plaintiff was walking on the sidewalk, observed a large group of police officers, and thought it “would make a great picture.”  He stopped to take the picture, an officer approached him and asked if he like taking pictures of grown men, and then told him he was blocking a public passage and needed to move.  Fields stated he was within his rights to be where he was, and he was arrested.

In the Geraci case, the plaintiff was attending a protest against fracking in order to observe the interactions between police and protestors.  She was, in fact, an activist and her specific reason for being at the event was to observe and record activities for her organization.  She apparently wore a pink bracelet identifying herself as a member of the organization.  When a police officer began to arrest a protestor, Geraci moved closer (but not in a distance to interfere), when the officer pushed her against a tree and held her there so she could not continue recording.

To reach its decision, the Court ultimately sifted through a series of cases from the Third Circuit (the federal appeals court for Pennsylvania, Delaware, and New Jersey).  The legal research found no evidence of a right to freely record police officers; the most the Third Circuit had to say up to this point was that an individual “may” have the right, so long as the recording is accompanied by a context indicating that it is “expressive conduct.”  The Court found that merely observing cannot be deemed “expressive conduct.”  And because the Court determined that the plaintiffs “are not members of the press,” they had no First Amendment right to record without an accompanying protest or challenge.

This holding is dangerous for two reasons.

First, the Court held that in order to be protected by the First Amendment, one’s recording of police must be accompanied by an active protest of police actions.  This, again, has two major problems: (a) if the police have engaged in inappropriate conduct prior to the recording, the individual has no mechanism to show the inappropriate conduct, short of a police report and the individual’s own testimony; and (b) given that both individuals claim that there was a significant use of force against them (and Fields was actually arrested) for recording without protest, one can imagine the risk an individual takes to his person and liberty should he (or she) attempt to record police activity while actively protesting the individual’s own treatment.

Constitutionally speaking, this is a dangerous ruling, as well.  The District Court found that the plaintiffs were not members of the press.  Notably, the Court failed to explain its decision here and offered no reasons why someone taking interesting photos of city activities and a political activist specifically seeking to observe and record police activities are not to be considered journalists.  The Court noted the “instant image sharing technology” available to share the images recorded by the plaintiffs, so that presumably it assumed that the plaintiffs had at least some intention of sharing the recordings.

We have already seen attempts by the government to determine who, precisely, is considered a journalist.  The First Amendment protects the freedom of the press, in addition to the freedom of speech, assembly, petition, and religion.  These rights protect the individual against encroachments by the government.  It is exceedingly dangerous, then, to allow the entity against whom we are protected to define to whom the protections apply.  That would be equivalent to allowing the individual to determine his/her own tax deductions, or a criminal suspect to determine which sections of the Crimes Code applies to him.

To cite another, perhaps more important, example: prior to the American Revolution, the primary media was newspapers and pamphlets.  In the 1760’s, after the rather expensive French and Indian War, the British government began placing taxes on various objects and activities.  To state their objections to this and other recent policies, the American colonists ran newspaper editorials critical of the British Parliament and individual officials.  To curb this, the British government exacted a tax on newspapers (and some other legal documents).  This action, called the Stamp Act, was one of the major contributing actions (among a series of impositions by the British) that led to the American Revolution.  Thus, when forming the Bill of Rights, the drafters were careful to include the freedom of speech and of the press as one of the first rights (second only to religion) protected against government encroachment.

By defining who the press is, the government limits the protections of the First Amendment perhaps more than the initial Stamp Act did.  Today, taxes and fees exist at every level of conducting business, a fact the colonists would likely abhor, but is fully accepted today; here, however, the government actually defines who may receive constitutional protection and who may not.  The manner in which the Court matter-of-factly states that the plaintiffs were not members of the press is certainly disturbing; it is apparently so evident to the Court that no explanation was needed.  (As an aside, this is a different argument than requiring press passes into a press conference at an official press conference – while the government may decide to whom its officials will personally speak, it cannot prevent another individuals from reporting on what was said).

Finally, the arguments of several other federal appeals courts seem more convincing than the Eastern District’s or the Third Circuit’s.  The First Circuit (Maine, New Hampshire, Massachusetts, and Rhode Island), Eleventh Circuit (Georgia, Florida, Alabama), Seventh Circuit (Illinois, Indiana, Wisconsin), and Ninth Circuit (California, Nevada, Arizona, Oregon, Idaho, Washington, Montana, and Alaska), and , – in total, 18 states* –  all recognize a right to record police in public, so long as there is no interference with the police performing their duties.  These Circuits recognize that observation and recording serves an important function in the national conversation, in preventing corruption, and in promoting free discussion of ideas, in addition to the news gathering function (which they do not necessarily limit to the “authorized” press).  In the view of the Eleventh Circuit, “the First Amendment protects the right to gather information about what public officials do on public property.”

While the First Amendment claims were unfortunately dismissed, the Fourth Amendment unreasonable search and seizure, false arrest, and excessive force claims will ultimately go to trial.  The search and seizure claims may very well be affected by this decision, however, as officers (and other public officials) have qualified legal immunity against liability if the actions were not clearly unconstitutional at the time.  If there was no right to record police and Fields refused a police command, then perhaps it was “reasonable,” in the legal sense, for the officer to seize his phone and search it.  I certainly hope that is not the case, but I have seen more loosely connected logic in grants of qualified immunity.

The attorneys for the plaintiffs have indicated that they will appeal this decision to the Third Circuit.  One hopes that that court will recognize the right to record public officials in the course of their public duties, regardless of who is doing the recording.

* Other states may recognize the right individually.  This is merely to show states in which the federal courts have stated there is a right to record police under the U.S. Constitution.  New Jersey, for example, has held that there is a right to record police officers, essentially adopting the First Circuit’s reasoning.

**This case currently applies only within the boundaries of the Eastern District of Pennsylvania and, as a district court case, is binding on the parties.  However, the case may be used as persuasive authority in any legal proceeding.  This means that while not binding on persons who are not parties to the case, Thompson Law Offices, LLC would not advise recording police officers in Pennsylvania at the present time.

Eastern District of Pennsylvania Holds Recording Police Activity In Public NOT Constitutionally Protected

In an opinion today, Judge Mark Kearney ruled that citizens who, at the time of recording, do not intend to challenge police activity, have no right to videotape police officers performing their duties in public.  You can read excerpts of the decisions here, as reported by The Legal Intelligencer today.  The opinion was not publicly available online at the Eastern District’s website and the decision may not be appealed immediately, as there were other issues to be decided in the case.  However, the attorneys for the plaintiffs have indicated their desire to appeal the case, according to the article.

Once the opinion has been made public, Thompson Law Offices will review the decision and post further analysis.  However, given the importance of the case, it was felt necessary to post the decision, without analysis, sooner, rather than later.

What You Need To Know About Gun Trusts and New Jersey

 

Gun trusts have become quite popular in the last few years, especially considering the national discussion and controversy over firearms.  Gun trusts have become so prevalent, in fact, that the Bureau of Tobacco, Firearms, and Explosives (“ATF”) has even controversially stepped into the fray to regulate them.  As with most things floating about the national conversation, there is a lot of information on the internet pertaining to gun trusts, and much of it is dubious, at best.

Many states’ laws are such that the benefits of gun trusts are numerous.  In those states, such as Pennsylvania, individuals may own certain National Firearms Act (“NFA”) weapons, such as silencers, short-barreled shotguns, and fully automatic weapons.  In order to purchase these NFA weapons, however, the individual must go through ATF and present certain personal information, such as a photo ID, signature, and fingerprints, to the chief law enforcement officer (“CLEO”).  As a legal entity, however, a gun trust has no photo ID, signature, or fingerprints, thus expediting and streamlining the process.  Besides saving time, this can be useful for law-abiding citizens to obtain NFA weapons in locations where the CLEO may refuse to sign off on the required documentation.

New Jersey, unfortunately, is not one of those states.  The weapons that most people desire to purchase and possess through a gun trust are generally prohibited in New Jersey.  For example, silencers and short-barreled shotguns (referred to as “sawed-off shotguns” in New Jersey) are prohibited in New Jersey pursuant to N.J.S.A. 2C:39-3.   Likewise, fully automatic and “assault rifles” are prohibited unless one is licensed by applying the Superior Court of New Jersey pursuant to N.J.S.A. 2C:58-5.

There are, however, other benefits to gun trusts.  Besides streamlining the NFA purchase process in states where NFA firearms are allowed, the gun trust acts as a great way to transfer firearms from generation to generation, without worrying about going through probate (trusts are executed by the trustees, not the probate process).  Trusts are also private, whereas a will is publicly available for anyone who may want to peruse them when executed. Thus, it is conceivable that someone could discover which of your beneficiaries inherited which firearm.  To some, this is a concern.

In New Jersey, however, all firearms transfers require that the receiver of the firearm has a valid Firearms Purchaser Identification Card (“FID”) and that the seller or grantor signs a written statement that he or she has identified the individual.  Importantly, these two requirements are waived when the transfer is “for the passing of a firearm upon the death of an owner thereof to his heir or legatee, whether the same be by testamentary bequest or by the laws of intestacy.”  N.J.S.A. 2C:58-3(j).  While a passive reading may seem to indicate that a trust would allow the passing of a firearm from the settlor (creator of the trust) to the beneficiary, this is not the case.

An heir is defined under New Jersey law as “those persons, including, but not limited to, the surviving spouse, the domestic partner and the descendants of the decedent, who are entitled under the statutes of intestate succession to the property of a decedent.” N.J.S.A. 3B:1-1.  The term “legatee” is not defined in the New Jersey estates statutes, but is generally defined as one who receives a legacy, which is a bequest via will.

What this means is that, under a strict or literal reading of the statute, the property, or res, of the trust would not be excluded from the normal firearms transfer laws of New Jersey.  A trust is, by definition and design, not a will.  Because the language of the exception is strictly the language of the passing of property through a will and last testament, rather than more general language (such as the term “beneficiary”), any transfer via trust is going to require the beneficiary to have a valid FID and the “seller” to issue a statement that the receiver has been identified by the seller.  If you are transferring any handguns, then you must follow the requirements for transferring a handgun.

An individual must also consider that in order to create the trust, it must be funded.  This generally means that the settlor would transfer the property into the trust that he or she desires to be distributed to the beneficiaries at a given point in time.  In most trusts, this is not an issue.  However, when dealing with firearms, this means that all of the procedures required for the transfer of a firearm must be completed at the creation of the trust and then again on distribution.  This also means that at least one Certificate of Eligibility will be required, resulting in the disclosure of information concerning the firearm and the individuals.  For many firearms owners in today’s environment, providing the government with firearms information linking them to their individual firearms is akin to a firearms database, and they are understandably wary.

Thus, although it is not private, leaving your guns to your family (or any other individual) through your will and last testament is generally the best route in the opinion of Thompson Law Offices.  State law specifically exempts this particular transfer from the normal transfer requirements, which should be a great relief in a state renowned for its strict adherence to the letter of its firearms laws.

In addition, the practical effects of the publicity of the will are not great.  Most people are not in the habit of perusing executed wills and unless the will is contested, the probate process should be fairly low-key and streamlined, and at least not particularly public.  For those individuals concerned with firearms databases or registries, while the information is considered public, it is not formalized, as is the case with the Certificate of Eligibility, which should provide some relief to those concerns.

Finally, you do not need to worry about the eligibility of your beneficiary to own a firearm, as state law allows 180 days for an ineligible beneficiary to dispose of the firearm to receive the property value of the gun.  (Note that the statute states that the individual may retain ownership of the firearm, not possession).  Thus, the burden is on the individual receiving the firearm to comply with the law, not the testator (person making the will).

For questions pertaining to the creation of a will concerning firearms, or additional questions regarding gun trusts in New Jersey, call for a consultation at (888) 866-6947.  (Please note that there is a small fee for consultations on gun trusts).

 

R.I.P. Justice Antonin Scalia

We are deeply saddened to learn of the death of Justice Antonin Scalia. Throughout his nearly 30 years on the U.S. Supreme Court, Justice Scalia championed the U.S. Constitution and the system of government established and envisioned by our founders.  He will be sorely missed.

The Social Security Disability Process

If you have been working and suddenly find yourself disabled and unable to work, you might be entitled to Social Security Disability benefits, often referred to as SSD or SSDI (Social Security Disability Insurance).  SSD is available for those who 1)  have worked 5 of the last 10 years, 2) have a disability that has lasted (or is expected to last) one full year or more, and 3) are incapable of making more than $1,130 per month (2016 amount).

Differences between SSD and SSI

Many people do not realize that there are two types of Social Security Disability claims: Social Security Disability Insurance (SSD or SSDI) and Supplemental Security Income (SSI).  The topic of this article is SSD, but it is important to note the basic differences between the two.  SSI is asset-based, in addition to disability- and income-based.  While SSD will look at your personal income to determine if you meet the disability requirements, SSI looks at the entire household income and assets.  SSI is typically applied for by individuals who do not meet the work requirements of SSD.  Thus, children will receive SSI benefits, rather than SSD.

How Social Security Will Analyze the Claim:

There are certain eligibility requirements for Social Security Disability benefits.  First, because the benefits are a form of insurance provided by the federal government through the Social Security Administration, you must have paid your premiums.  The “premiums” here are your FICA taxes deducted from your paycheck.  If you have not worked for a certain period of time (generally 5 of the last 10 years), you have not paid enough into the insurance program, and so would not be eligible for SSD (although you might be eligible for SSI, depending on your circumstances).

Second, you must be incapable of holding a job that would provide $1,130 per month (referred to as Substantial Gainful Activity, or “SGA”), according to 2016 rules (this number generally increases each year).  If you can earn (or are currently earning) more than $1,130 per month, you are not considered disabled under Social Security’s rules (even though a state agency or physician may consider you disabled).  Unlike SSI, the SSD analysis is only concerned with your ability to earn income – your savings, assets, and household income is not included in the SGA eligibility requirement.

Finally, your disability must be expected to last (or actually have lasted) 12 months or more.  Thus, a temporary disability determination by a state agency may be important evidence, but is not going to be a “smoking gun” in your SSD case, as many clients believe at the outset.

The other important aspect of the SSD analysis involves your actual condition.  There are two ways to prove disability to Social Security.  First, you can demonstrate that you meet a “listing,” which refers to a particular diagnosis in the appendices of the Social Security regulations, frequently referred to as the “Blue Book.”  These “listings” consist of very specific diagnoses and symptoms.  If these criteria are not met precisely, you will not be considered to have met the listing.

However, most SSD cases are won by the alternate analysis.  This looks at an additional two step process: can you perform your past work, or can you perform other work?  These steps involve looking at your entire circumstances, your daily activities, the effects of medication, treatment, etc.  Under this analysis, you must demonstrate that you are incapable of working in any job in which you could earn the SGA amount.  (This is really the overall evaluation in either scenario, but if you meet a listing, Social Security presumes that you cannot work in any job that would provide SGA).

SSD Step One: Filing the Initial Claim

You should be able to file the claim yourself, but there are a few tips to help your claim’s success at the outset.  First, make sure you bring a list of all doctors and medical providers you have been seeing, whether those doctors have treated you for your disabilities directly or not.  Second, bring your entire medication list with you, including any side effects you may suffer from.  Finally, bringing as many records as you have available with you to ensure that Social Security gets the proper records.  (Thompson Law Offices offers free consultations to individuals at any stage of their Social Security Disability Insurance claim, and can offer more specific guidance to your particular case during a phone call).

Claims may be completed online, on the telephone, or at your local Social Security Agency office, although it is recommended that you go in person.  The claims generally take a month or two to process.  If you are awarded benefits, you will begin to receive them on the sixth month after you are entitled to them.

SSD Step Two: Reconsideration and Appeal

If, on the other hand, you are denied, you will receive a denial letter called the Notice of Disapproved Claim.  This letter will have a date on the top right corner.  You have 60 days from this date to file the appeal.  Therefore, it is imperative that you contact an attorney immediately and schedule an appointment if you desire representation throughout the process.  Note that in New Jersey, you are required to file a reconsideration of the denial prior to filing the request for a disability hearing before the Administrative Law Judge.

Once you have been denied on your initial claim (or your reconsideration if you are in New Jersey) you can request a hearing before an Administrative Law Judge, or ALJ.  The ALJ will hear your side of the story, along with any witnesses you care to bring.  Witnesses are generally a spouse or close friend or relative who frequently interacts with you and has observed your disability.  That way, they can inform the ALJ of your disability, as well.  Because credibility is often an issue in SSD cases, having another individual who can verify what you are saying can be very helpful.

Unfortunately, it take a very long time to appear before the ALJ.  In Pennsylvania, the wait is typically well over a year, and often more than a year and a half.  In New Jersey, due to the reconsideration period, it is often longer than two years.  While this waiting period can be trying and frustrating, it can also be helpful, as it allows us to build your case over a period of time.  By continuing treatment and keeping your attorney informed of your doctors and treatments, the attorney not only has more information with which to present to the ALJ, but sometimes evidence emerges that demonstrates you meet Social Security’s requirements on paper, foregoing the need for a hearing.

SSD Step Three: The ALJ Hearing

Your hearing is designed for the ALJ to meet you and hear how your conditions affect you.  He or she will have viewed and studied the medical record, but needs to know the particular effects the conditions have upon you.  While important to the outcome of your claim, the hearing is not adversarial, meaning that there is no Social Security attorney to cross-examine you.  Generally speaking, the hearing consists of you, your representative, a court reporter, the judge, and perhaps a vocational expert (VE) and a medical expert (ME).  The VE and ME are there to assist the judge for independent job and medical analysis and will generally not ask you any questions.

Thompson Law Offices has experience in all aspects of Social Security Disability, from guidance on the initial claim, to the appeal process, expediting hearings (where appropriate), seeking decisions on the record without the need to wait for a hearing (also where appropriate), and appeals beyond the ALJ.  If you have been denied and need to file an appeal, please call and set up an appointment, so Thompson Law Offices can analyze your claim.  Or, if you are just getting started, or thinking about filing a claim, Thompson Law Offices can assist and advise you.