MASK MANDATE STRICKEN BUT “TEXTUALISM” IS EXPOSED

On April 18, 2022, Judge Kathryn Kimball Mizelle, who is a district judge in Tampa, struck down the Biden Administration’s mask mandate, ruling that it was beyond the scope of the authorizing legislation, not entitled to Chevron deference; adopted without notice and comment; and arbitrary and capricious. The decision was and is, in my opinion, not just incorrect, but outrageously incorrect, an egregious example of textualism run amuck in support of a plainly motivated political agenda.

We all know about mask mandates, unless we’ve been living for the past two years under a rock. The Trump Administration refused to adopt one, and one of the first things the Biden Administration did was to reverse that. In this case the mandate applied to airplane and train travel and other forms of interstate transportation involving more than one driver in a vehicle. The authorizing legislation is Section 264(a) of the Public Health Services Act, which the judge declined to quote in full, perhaps for fear of exposing the weakness of her analysis. That section provides that the Surgeon General, with the approval of the Secretary of Health and Human Services, “is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” Hmmm. That sounds like it could apply to a mask mandate seeking to limit the spread of a virus. The next sentence provides: “For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” Hmmm again. That sentence would appear to cover a discretionary determination (“may”) to provide for masking to limit the spread of Covid, a communicable disease (“such…other measures, as in his judgment may be necessary”). So, both sentences seem to give the Secretary discretion to exercise judgment in adopting a mask mandate.

But Judge Mizelle disagreed. The starting point of her analysis, at page 11 of an overlong 59 page opinion, is that even if the first sentence is of Section 264(a) is a general authorization to limit the spread of communicable disease, the second sentence operates as a limitation on the first. Really? That’s not the only way to read the language. The second sentence provides examples, not limits.

She then goes on to say that the mask mandate isn’t an active measure like “fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated articles.” Really, again? How can she ignore the permissive word “may”, or the permissive phrase “other measures, as in his judgment may be necessary.” She doesn’t even bother to refer to them. The omission is material, and disingenuous.

Instead, what she does is to reason that the mask mandate may be a little like sanitation, but then, quoting four dictionaries, says that “sanitation” is an act of removal or cleaning, sort of a mixed noun and verb. Again, really? I can read “sanitation” to cover putting a mask over one’s face to make an area more sanitary from a virus. Isn’t that why surgical personnel in an operating room wear masks?

She then runs on for 10 pages about Justice Scalia, textualism, context, sanitation being limited to cleaning measures, and other matters that aren’t necessarily completely beside the point, but don’t deal with the core problem, which is that the language of the statute also states that the government “may provide for such…other measures”, which could logically include a mask mandate, “as in his judgment may be necessary.” Isn’t that additional language “context” too? But to Judge Mizelle, all that “context” means is where the word “sanitation” is placed in the second sentence of Section 264(a), which she uses to conclude mask mandates can’t be “sanitation” because masks aren’t like “fumigation,” “disinfection” or “extermination.” But what about the “context” of the additional language she chooses to ignore? Or the “context” of Covid-19 and the public health purposes of the Public Health Services Act generally?

This decision, in my opinion, demonstrates the fraud that “textualism” can be used to perpetrate. By pretending that the text dictates the result, as if text were always a deus ex machina, conservative judges are able to strike down something they don’t like, while blaming someone else. “It wasn’t me, it was Congress.” Or the founders. Or the regulators. Anyone else but the judge who is unwilling to acknowledge that he or she is making a policy choice. That is especially true here, where it is evident that the text DOESN’T in fact dictate the result. Quite the opposite.

In fact we all start with the text when we do our analysis of any legal position, about a statute, a regulation or even a contract. That is what Justice Kagan meant when she said “we are all textualists now.” But then we think about context, and purpose, and intent, and…God forbid…even justice and fairness and public policy. Thinking about the mask mandate this way, Section 264 certainly seems to authorize a mask mandate to limit the spread of the coronavirus, especially when you consider the language that Judge Mizelle deceptively chose to ignore.

I will say that Judge Mizelle was perhaps on stronger ground in ruling that there was no basis for ignoring the 30-day notice and comment period set forth in the Administrative Procedures Act. The Biden Administration chose to forego that, when it could have enacted the mask mandate on an emergency basis during the notice and comment period while still allowing for notice and comment. It could also have done a better job setting forth the scientific and medical evidence that the mask mandate would be effective in accomplishing its objective. Either of those grounds for her ruling would have given the Biden Administration a do-over, but she did not permit that. So, the thrust of her ruling has to be based on what I regard as seriously misguided statutory interpretation.

Unfortunately in this day and age all judging has to be considered political. Sorry Justice Roberts but it’s true. Judge Mizelle clerked for Justice Clarence Thomas; her husband worked in the Trump Administration; she was appointed by President Trump; and the ABA found her to be unqualified, not due to lack of academic qualifications but rather due to lack of experience. So I have to conclude she was hostile to the very idea of a mask mandate and wanted to find a way to strike it down. And she did. But let’s not pretend that result was dictated by the text of the authorizing legislation. It was not.

We’re getting to the end of what people will accept by way of Covid-related restrictions anyway. Hopefully the pandemic really is winding down now, so it isn’t clear to me just how much Judge Mizelle’s ruling will really matter as a practical matter. There are few state or local mask mandates remaining in place. Personally I hate wearing masks. The real danger in Judge Mizelle’s ruling is the approach to textualism that it represents. Too many justices on the Supreme Court have tried to adopt the approach, which as you can tell I consider to be fundamentally misguided. Lower court rulings such as Judge Mizelle’s are the consequence.

Richard P. Swanson
Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

LOOKING FOR TROUBLE, AND FINDING IT: THE ABA RESOLUTION TO CONDEMN NON-LAWYER OWNERSHIP

            (This has been revised since its original publications to correct minor inaccuracies and address comments we have received.)

At the ABA Annual Meeting last week, the Illinois State Bar Association (“ISBA”), the New York State Bar Association (“NYSBA”), and several ABA entities sponsored Local Resolution 402 (hereafter, the “ISBA Resolution”) in an effort to stop the entire ABA – if not the entire American legal profession – from permitting non-lawyer ownership of law firms, in any form.  The entire ISBA Resolution, as originally presented, read as follows:

The sharing of legal fees with nonlawyers and the ownership and control of the practice of law by nonlawyers are inconsistent with the core values of the legal profession.  The law governing lawyers that prohibits lawyers from sharing fees with nonlawyers and from directly or indirectly transferring to nonlawyers ownership or control over entities practicing law should not be revised.

This “mom-and-apple-pie” resolution – No fee splitting! No nonlawyer ownership! – sought to slam the brakes on any regulatory innovation that would allow nonlawyers to have an interest in private law firms.  But if the ISBA and its co-sponsors thought this would sail through the ABA House of Delegates, they had another think coming.  In fact, they arguably ended up with a worse result than if they had never proposed the resolution at all.

            We do not have the time or space to provide a complete treatise on non-lawyer ownership.  Those who want one should read the 114-page Report of the NYSBA Task Force on Non-Lawyer Ownership dated November 17, 2012, which is quite comprehensive and generally critical of the concept, though now somewhat outdated.  The NYSBA’s antipathy toward non-lawyer ownership is hardly surprising, since the Model Rules mandate, with some minor exceptions, that “[a] lawyer or law firm shall not share fees with a nonlawyer” [MR 5.4(a)] and that “a lawyer shall not practice with or in the form of a[n] . . . association authorized to practice law for a profit if a nonlawyer owns any interest therein. . ..” MR 5.4(d)(1).

            Nevertheless, the ISBA Resolution encountered substantial resistance  from, among others, several ABA Standing Committees under the rubric of the ABA Center for Professional Responsibility, the ABA Standing Committee on Delivery of Legal Services, the Chair of the ABA Innovation Center (apparently speaking in his personal capacity), and others.  These groups perceive that the current lawyer-centric model of law firm ownership is not working, particularly for poor and middle-class people.  As described in the February 2020 Report of the New York County Lawyers’ Association on For-Profit Online Legal Matching Services,among many other similar reports, a large swath of American society does not hire lawyers because it cannot afford them, a situation that has resulted in a dearth of lawyers in small and rural towns and a widening “justice gap” throughout the country between those who need legal services and those who can afford them.  Notwithstanding the organized Bar’s efforts to hold the line on “core values”, consumers of legal services are voting with their feet.  Rather than use lawyers, middle-class clients use online document providers like LegalZoom, or appear pro se in landlord-tenant and consumer debt cases, often with disastrous results.  In fact, just 18 months ago, at its 2020 Midyear Meeting, the ABA passed Revised Resolution 20M115, which encouraged U.S. jurisdictions to “consider innovative approaches to the access to justice crisis in order to help the more than 80% of people below the poverty line and the many middle-income Americans who lack meaningful access to effective civil legal services”, and “to consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services,” while explicitly not recommending any change to MR 5.4.    The Revised Report accompanying that Resolution cited with approval nonlawyer ownership models from Arizona and Utah, as well as nonlawyer ownership recommendations from various Bar organizations.

            The ISBA Resolution could only be construed as an attempt to reverse Resolution 20M115, and to stifle this type of regulatory reform.  Maybe this had appeal 20 years ago.  But today, it ignores several real world facts, highlighting how much has changed in the delivery of legal services in the last decade.

            First, despite the absolute prohibitions on fee splitting and nonlawyer ownership (“NLO”) in most U.S. jurisdictions, at least three states permit some form of NLO and others are actively considering it.  The District of Columbia has long permitted limited NLO (by nonlawyers who help service firm clients), but in the last few years Utah has developed a “regulatory sandbox” to experiment with NLO business models – often called Alternative Business Structures (“ABS”) under state regulatory supervision, while Arizona has gone all the way, repealing its version of MR 5.4 and permitting ABSs with few restraints.  England, Australia and New Zealand allowed the same thing years ago while requiring close regulatory oversight. These experiments are being closely watched.

            Second, we have had non-lawyers providing “legal services” on a mass scale for years.  LegalZoom and other online document providers, after fighting off several regulatory challenges,  are now well-established.  So are private services who match lawyers with clients and are paid based on the volume of work done, a form of fee-splitting.  Both of these services operate under the regulatory radar, but generate millions, if not billions, of dollars in revenue each year with few if any consumer complaints.  While most bar regulators have tended to ignore them – Florida and California are among the exceptions — a simple Google search shows that there are dozens of these services out there, with untold numbers of clients and lawyers using them.

Third, there is litigation financing, where large investment banks and venture capital funds finance (or “invest”) in lawyers or law firms on a non-recourse basis, paying large sums of money for an interest in some or all of the firms’ case inventory.  Though the New York City Bar Association’s Committee on Professional Ethics, in N.Y. City 2018-5 (2018), said that this form of non-recourse financing violated New York’s version of Rule 5.4, this has not stopped the litigation funding industry and, to date, no court or regulator has used Opinion 2018-5 as a basis to attack non-recourse litigation funding.  The difference between nonlawyer ownership of a legal service provider and the widely accepted practice of a nonlawyer funder advancing millions of dollars secured by a law firm’s caseload is hard to discern.

Now, don’t get me wrong – ABSs are no panacea.  So far, no one in any jurisdiction that permits ABSs has developed a model that has made a significant difference in providing legal services to poor and middle-class clients. And some ABSs have failed spectacularly:  Slater & Gordon, a publicly-traded law firm in Australia, became insolvent in 2017 amidst a government investigation, while in the early 1900s, a scandal involving a nonlawyer owned corporation providing legal services to the poor in New York led to passage of N.Y. Jud. Law § 475, which prohibits corporations from practicing law. 

But Utah has shown there can be a happy medium.  Under Utah’s “regulatory sandbox,” ABSs can apply to the Utah Commerce Administration for permission to operate in Utah with regulatory supervision.  This allows testing of NLO service models in a controlled environment that minimizes the risk of public harm.  Only through this type of experimentation can we hope to close the “justice gap.” 

Those who opposed the ISBA Resolution did so in part because of their concern that it would shut down experimentation involving NLOs and nonlawyer practice (e.g., the use of licensed paralegals).. Indeed, the report accompanying the ISBA Resolution made clear that this is exactly what the ISBA intended – despite the recent passage of Resolution 20M115 (which, shockingly, the report that accompanied the original ISBA Resolution did not even mention). 

The ISBA’s effort failed. In the end, the ABA House of Delegates passed the ISBA Resolution but only after adding the following to the original paragraph we quoted at the beginning:

FURTHER, Resolved and recognizing the importance to the profession and public of the core values embodied in Model Rule of Professional Conduct 5.4  . . . that nothing in this Resolution should be construed as recommending any change in or abrogating in any manner existing ABA policy as embodied in Resolution 20M115 adopted by this House at its 2020 Midyear Meeting.

 By adding the reference to Resolution 20M115, the ABA House left room for, and even encouraged, the very innovation that the ISBA Resolution was trying to stop!

            The tension between the two Resolutions, and between the language discouraging NLO and encouraging lawyer regulation, indicates that the proponents of the ISBA Resolution and its opponents ended up with a draw.  This was unthinkable ten or twenty years ago, when the mere possibility of ABSs was considered anathema by a large majority of the House.  The old order is changing, whether lawyers like it or not.  The need to address the “justice gap” and to address the advent of new technologies is simply too great to ignore. 

            So the next question is:  when is the regulatory sandbox coming to New York?

Ronald C. Minkoff

                                                                                          Treasurer, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

“It’s time to heed the Constitution and return the issue of abortion to the people” What the Kansas Abortion Referendum Tells Us

By: Brittney Balser & Meg Sanborn-Lowing

In Dobbs, Justice Alito opined that “the permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”  In the first vote of its kind since the Dobbs decision, Kansas voters did just that, rejecting an amendment to the state’s constitution that would remove the right to abortion and allow for Republican law makers to pass stringent abortion restrictions.  

            In a state former President Donald Trump won by more than 15 points in 2020, the outcome of the referendum vote was hard to predict, due in part to the confusing posture of the referendum itself.  In 2019, the Kansas Supreme Court ruled that the state constitution protected abortion rights.  Anti-abortion groups proposed an amendment expressly stating that the state constitution does not create a right to abortion and that the state legislature has the express authority to pass abortion laws.  Thus, passage of the amendment would have allowed the state’s Republican-controlled Legislature to decide the fate of access to reproductive healthcare.  As a result, pro-choice Kansans had to vote “no” on the measure in order to ensure the continued protection of abortion access in the state.  

            Despite this counterintuitive posture, the final count is expected to show that approximately 60% of Kansans favored protecting the right to abortion.  In addition, despite its late-summer timing, there was “incredibly high turnout” according to Kansas’ Secretary of State.  The outcome of this vote confirms what many polls had suggested: Americans, even those in conservative states, believe in protecting access to abortions and reproductive healthcare.

            The Kansas referendum is not the only opportunity Americans have this year to vote to protect abortion access.  Kentucky voters will face a similar question in November, when they will vote on a constitutional amendment stating that Kentucky’s constitution does not expressly create a right to abortion, which will therefore be left up to the state’s Republican-controlled Legislature.  In addition, liberal-leaning states such as Vermont and California are asking voters to enshrine the right to an abortion in their state constitution, while voters in Michigan will likely be asked whether to codify the right to an abortion in their state constitution.  Such addition would nullify the existing 1931 Michigan state law prohibiting abortion—a law that Michigan Attorney General Dana Nessel is currently refusing to defend.

            While the outcome of the Kansas referendum is a success for the pro-choice majority, substantial burdens still exist for Kansans seeking abortion healthcare.  The state only has four abortion providers, all of which are located in either Kansas City or Wichita.  Indeed, for many Kansans, it is easier to travel to neighboring Colorado for reproductive healthcare.  Further, the success of the Kansas referendum does nothing for the millions of people in America who live in a state in which they do not have the ability to directly vote to protect the right to reproductive healthcare, and where abortion access is currently restricted or outlawed.

            The biggest takeaway from Tuesday’s vote is that Kansas voters have confirmed what polls have been reporting for years: a majority of Americans opposed overturning Roe v. Wade.  When given the opportunity to have their voices heard, most Kansans came out in favor of protecting the right to an abortion, even a substantial percentage of conservative voters who voted for former-President Trump to be re-elected less than two years ago.  While the long-term impact of the Dobbs decision on voter decisions remains to be seen, the result of the Kansas referendum is further proof that when the issue of abortion is truly returned to the direct vote of the people, Americans believe in “the right of individuals—yes, including women—to make their own choices and chart their own futures.”

The views expressed here are those of the authors, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

I’VE HAD IT WITH CLARENCE THOMAS

I’ve had it with Justice Thomas.  He’s a whiner.  Nobody likes a whiner, but he’s not an infant.  He’s a Justice on the Supreme Court.

In the wake of the leak of Justice Alito’s draft opinion overruling Roe v. Wade, Justice Thomas delivered remarks before a conservative conference hosted by the American Enterprise Institute, the Manhattan Institute and the Hoover Institution, three well-known conservative organizations.  He doesn’t speak before the ACLU or Planned Parenthood or any organization even remotely of their ilk.  Fellow travelers only. 

In his remarks, Justice Thomas complained, justifiably, about the leak.  He also complained, understandably, that it had damaged collegiality and trust internally among the justices.  But he also went beyond that to complain “I wonder how long we’re going to have these institutions at the rate we’re undermining them.”  “And then I wonder, when they’re gone or destabilized, what we’re going to have as a country.”

Really Justice Thomas?  Don’t you get that you’re at least as responsible as anyone for undermining the authority and image of the Supreme Court?  When your wife clearly supported an attempted coup on January 6?  When her advocacy involved encouraging efforts to have state legislatures ignore vote tallies to appoint new electors dedicated to voting for President Trump?  And then when you decided not to recuse yourself when issues related to executive privilege and scope of subpoenas related in part to your wife’s activities came before the Court?  And what about your role in the 2001 decision in Bush v. Gore, where you and four other justices essentially appointed a President by stopping vote counting in Florida under a specious equal protection argument?  Was there any original intention on the part of the framers of the Fourteenth Amendment that it would be used to designate a President?  And yet, in your opinion in the abortion case, and elsewhere, you claim to support the original intent theory of constitutional jurisprudence.  The hypocrisy is astounding, and the implications for democracy are frightening.

Justice Thomas also went on to say that all of the opposition he has encountered over matters judicial, including his own confirmation hearing, was from the left, whom he criticized as egregious and unfair.  What about Senator McConnell’s machinations to keep Merrick Garland off the Supreme Court, and to jam Amy Coney Barrett onto it?  I could go on and on.

Does Justice Thomas have so little self-awareness that he can’t get his own role in these events?  The current Court is as activist as any we have had in our nation’s history, and certainly every bit as activist as the Warren Court of the 1950s and 60s, just in the opposite direction.  Justices on the right, including Justice Thomas, routinely give speeches encouraging attorneys who see things their way to file certiorari petitions that give the Court the opportunity to decide the issues and cases they choose, ideologically, to decide.  

But then to complain on top of that about public reaction from the other side is really appalling.  How can you be a public figure, serving a public role in an ideologically tinged manner without understanding that public criticism comes with that role?  Does he expect to be thanked by everyone in the entire country for taking the right of abortion away?  Did the entire country thank the Warren Court for Brown v. Board of Education?

Stop whining, Justice Thomas.  Personally I’d prefer it if you resigned instead, but I know that won’t happen.  In the meantime, just stop whining.

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

HOV Lanes and Abortion

Sometimes it’s the little things that make you think.  Many of you may have seen news accounts about a Texas woman, Brittany Bottone, who was given a ticket for driving herself in an HOV lane where two passengers were required.  What does this have to do with abortion?  Her defense is that she is 34 weeks pregnant; her fetus counts as a person under Texas law; and therefore she was in fact driving with two persons in the car, not one.  She got the ticket anyway, and said “see ya in court.”

How can Texas abortion law be reconciled with its HOV lane rules?  Why isn’t Ms. Bottone right?  How will Ken Paxton defend both statutes?  How can a “person” for abortion law purposes not be a “person” for purposes of the HOV lane?

The answer of course is easy.  A fetus can be a “person” for purposes of abortion law, but not for purposes of HOV lane driving.  Why?  Because the underlying purposes and policies of each set of rules are so different.  Context matters! 

But holy cow.  We’re in a textualist era.  Started by Justice Scalia, he told us we’re supposed to look at the words which have fixed and objective meaning.  Except they don’t.  Texas wants to limit abortion, so a fetus is logically a “person” when you want to protect it.  But HOV lane driving rules have an entirely different objective, so the same word can be defined and utilized differently in each place.  Bingo…text is not immutable.  Context and purpose matter too. 

I’ve always thought that textualism was complete bunk, hokum designed to justify a result that conservative justices wanted to reach while enabling them to avoid responsibility for making a policy choice by saying “don’t blame me, blame that stupid statute” that Congress or some state legislature passed or a stupid rule that some administrative agency promulgated.  Justice Roberts utilized that approach to the word “system” in his environmental opinion last week, West Virginia v. EPA, about which I’ll soon be writing.  But the bunk and the hokum are easier to see when the case involves nothing more sinister than a traffic ticket for driving in the HOV lane without actually being in a High Occupancy Vehicle. 

Pursue your defense, Ms. Bottone!  Make Ken Paxton own up to his hypocrisy!  Take the appeal too if you have to!  You’ll lose the case and have to pay the ticket but you’ll unintentionally be performing a public service in the process.

Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

New York Should Become a Legal Safe Harbor for Women Seeking Abortions and the Health Care Practitioners Who Provide Them

By Margaret Sanborn-Lowing, Esq. & Kate Aufses, Esq.

In the wake of the Supreme Court’s decision to overrule Roe v. Wade, the United States has become a tale of two countries: one country in which abortion is legal and one in which it is not. As a result, pregnant women who live in states in which abortion is illegal will be forced to cross state lines to obtain abortions in states like New York where the procedure remains legal and accessible. While New York is and will continue to be a leader in upholding a woman’s right to terminate a pregnancy, we urge the state to do more to protect women who travel to New York to obtain necessary—and possibly lifesaving—abortion services. New York can also do more to protect doctors, other healthcare practitioners, state and local agencies, or any other citizen who helps facilitate an abortion for a non-New Yorker who travels to the state for an abortion.

Currently, New York’s Reproductive Health Act—passed in 2019—ensures that anyone who can get pregnant can get an abortion in the state. The law codified the protections previously provided under Roe and guarantees access to safe and legal abortion up to 24 weeks post-fertilization. In New York, abortion is also permitted after 24 weeks if the fetus is not viable, or if the pregnant person’s life or health (including mental health) is at risk.

Nevertheless, the Reproductive Health Act does not include affirmative protections to deter states with civil bounty hunter laws (like Texas’s SB8) from prosecuting individuals who travel to New York to obtain an abortion. The law also fails to protect from prosecution citizens of New York who assist non-New Yorkers in obtaining an abortion. New York should look to its neighbor, Connecticut, as a model for codifying these statutory protections and strengthening and expanding abortion access more generally.

On May 5, 2022, Connecticut’s Governor Ned Lamont signed into law House Bill 5414. The Connecticut state legislature passed the bill in response to the restrictive and draconian laws being passed in states like Texas, which create a private right of action for any citizen to sue patients or providers involved in abortions performed after a fetal “heartbeat” is detected, generally about six weeks. Connecticut’s law, in turn, prohibits state and local agencies from cooperating in investigations and prosecutions of abortion providers in the state; the law also shields abortion-seekers from penalties that could be imposed under other states’ anti-abortion laws. Indeed, people or organizations in Connecticut who are sued for receiving, performing, or providing support for abortions in other states can countersue for damages and other costs. Connecticut’s law also modifies the state’s extradition statutes and prevents disclosure of an out-of-state patient’s medical records.

What’s more, the Connecticut statute expands the types of medical professionals who can provide abortions in the state. The law allows advanced-practice clinicians such as registered nurses, nurse-midwives, and physician assistants to perform aspiration abortions, the most common method of in-clinic abortions, and to provide medication abortions. This is a critical step to ensuring that abortion remains as accessible and available as possible.

We are, of course, proud that our elected officials, including Governor Hochul, Lieutenant Governor Delgado, and Mayor Adams, are committed to ensuring that New York continues to be a “safe haven for women across this country” and that “abortions remain safe, legal, and accessible” here. But New York should do more: legislation as powerful as Connecticut’s is a next step. Last month, Manhattan State Senator Liz Krueger introduced a bill that would protect New York doctors who treat patients seeking

abortions by prohibiting law enforcement from cooperating with out-of-state investigations on abortion cases. While commendable, we urge New York to enact additional legislation preventing any state or local agencies from participating in the prosecution of women who travel to New York for necessary, and possibly lifesaving, abortions.

The views expressed here are the views of the writer, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

A SMALL STEP FOR NON-LAWYER PRACTICE – AND ACCESS TO JUSTICE: Upsolve, Inc. v. James

                                                                                                By:  Ronald C. Minkoff

Sometimes lawsuits lead to the right result for the wrong reason.  And sometimes, the reasoning doesn’t really matter:  it is the result that counts.   U.S. District Judge Paul Crotty’s May 24, 2022 decision in Upsolve, Inc. v. James, No. 22-cv-627 (S.D.N.Y.) (PAC) (“Upsolve”), is an example of both.

            Upsolve addresses – and approves — a radical solution to a dire problem.  Upsolve, a not-for-profit organization, trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions.  Because so many defendants in those actions are pro se – a Pew Charitable Trusts survey sets the number at 90%, with 70% ending in default judgments [M. Reynolds, “Federal Judge Greenlights Legal Tech Company’s Use of  Nonlawyers for Legal Advice” (ABA Journal, May 26, 2022), citing Pew Charitable Trusts survey] — the New York court system has created a one-page “check-the-box” answer form for these defendants to fill-in to avoid default.  Upsolve’s goal is to train non-lawyers to assist defendants to complete the forms and file a proper answer.

            Upsolve crafted its training program in an effort to avoid any future claim that the non-lawyers it trained were engaged in the unauthorized practice of law (“UPL”), which is still a crime in New York.  See N.Y. Jud Law §§ 476-a, 478, 484, 485.  The trainees, known as “Justice Advocates”, would use a training guide when helping others to fill out the form.  The training manual requires the Justice Advocate to make clear that they are giving limited advice (only on how to fill out and file the Answer form), and that they will refer the client to a legal services agency if the client’s legal needs go beyond that.  The Justice Advocates must sign an affidavit saying they will follow the New York Rules of Professional Conduct regarding conflicts of interest, confidentiality and informed consent, and will provide their services free-of-charge.  They are warned that if they violate these guidelines, they can be terminated from the Upsolve program or be prosecuted for UPL.

But Upsolve went even further to protect itself and its Justice Advocates from a UPL claim.  It filed a federal lawsuit to enjoin the New York Attorney General from enforcing the UPL statutes against the Justice Advocates program – even though the AG had neither brought charges nor threatened to do so. Upsolve argued that such enforcement would violate Upsolve’s and the Justice Advocates’ First Amendment rights.  In a rather surprising decision, Judge Crotty granted the injunction.

            Judge Crotty’s decision centered on whether Upsolve was likely to succeed on its First Amendment argument.  In three distinct stages, he steered the First Amendment analysis so as to allow him to apply “strict scrutiny” to any attempt to regulate Upsolve’s activities.

            First, despite noting that, in the absence of an attempt to enforce the rules against Upsolve, the challenge would normally be considered “facial” (an attack on the Rules of Professional Conduct themselves) and thus, because of its breadth, “highly disfavored” [Upsolve, Slip Op.at 10], Judge Crotty viewed “the more sensible approach” as treating this as an “as applied” challenge.  Id. at 10-11.  This was because the challenge focused only on Upsolve’s narrowly-directed program.  “They seek to allow members of a specific group to give legal advice about a specific legal topic – debt collection cases – with specific parameters about how those member would go about giving that advice.”  Id.  

            Second, despite conceding that “lower courts have overwhelmingly concluded that UPL statutes [are generally given broad deference] because they regulate professional ‘conduct’” and only incidentally involve speech – for example, they may regulate the provision of legal advice, but only in connection with a legal activity, such a trying a case or writing a will – that is not so with Upsolve.  Id.. at 17-18. All the Justice Advocates do is provide “out-of-court verbal advice,” and any UPL prosecution would seek to regulate pure speech.  This requires strict scrutiny. Id.

            Third, the Court found that legal advice was not among “the special categories of pure speech that the government can regulate without scrutiny.”  Id. at 25.  The Court held that only “a type of speech . . . historically rooted in a tradition of regulation going back to the [f]ounding” of the U.S. fits within that category.  Id.  Legal advice, the Court found, had not been regulated for that long – only since the post-Reconstruction period.  Id. at 25-26.

            Having found that any attempt to regulate Upsolve’s program required “strict scrutiny,” the Court upheld the First Amendment challenge.  While recognizing the public benefit of having UPL statutes, he found that rationale “less compelling in the context of Plaintiffs’ specific, narrow mission.” Id. at 27.  He noted the numerous client protections featured in the training manual, including required compliance with the ethics rules, providing services for free, and disqualification from the program for failure to comply.  Moreover, implementing the Upsolve program promotes judicial efficiency:  “more New Yorkers will respond to their lawsuits and begin th[e] adversarial process, rather than default entirely,”  as they are doing now.  Id. at 28.  In this limited context, the Court found, First Amendment considerations outweighed the need for UPL regulation.

            I am no First Amendment scholar, but even I can see that the Court’s argument is rather labored, as the Court dances around concededly contrary precedent to achieve what it perceives as the correct result.  More concerning is the notion that legal advice disconnected from “conduct” – as a lot of legal advice is – may have more First Amendment protection and thus be less subject to regulation.  If the advice to be provided by Upsolve were provided instead by an unadmitted “notario” for a fee, would it really be less subject to First Amendment protection?  If so, why?  If not, does that result adequately protect the public?

            Still, from the standpoint of access to justice, the decision to allow Upsolve to pursue its program is the right one.  The need is indeed great:  as noted, many litigants in consumer debt cases default because they cannot find or cannot afford a lawyer.  While legal services agencies claimed, in amicus briefs, that they “do not turn away clients,” the fact is, as the Court noted, that “the State’s own forms encourage defendants to file their answers pro se,” indicating that these lawyers are not meeting the existing need.  Id. at 29.  Upsolve’s “program does not need to reach every potential client to strengthen the legal system.”   And strengthen the legal system it will!

            But there has to be a better way for a program like Upsolve to exist than fighting dodgy constitutional battles.  As Jacoby & Meyers, LLP learned five years ago when it challenged New York’s rule against nonlawyer ownership so it could more easily raise capital to serve its middle-income clientele, such attacks on the existing order often go down to  defeat.  Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Departments, 852 F.3d 178, 181 (2d Cir. 2017).  Who knows if Judge Crotty’s decision will survive appeal?  Three preferred solutions immediately come to mind.

            First, we can redefine the “practice of law” to exclude the type of service that Upsolve is providing:  one aimed at indigent clients, pursued under tight controls, containing consumer protections, and with no monetary incentives for abuse.  As just one example, we make similar exceptions to the rule prohibiting compensation for lawyer “recommendations” under Rule 7.2(b), by allowing legal services organizations, Bar association referrals and union plans, among others, to be compensated for referrals.  We can do the same thing with the UPL statutes and rules.

            Second, we can also develop a program to allow licensed nonlawyers to provide certain limited legal services, such as filling out bankruptcy forms, assisting with uncontested divorces, answers in  consumer debt parts, and the like.  As pointed out in Upsolve, Wisconsin, Washington, Arizona and California, among other jurisdictions, have allowed some form of nonlawyer assistance.  Upsolve, Slip Op.at 30.  Even New York allows Housing Court navigators to provide limited guidance to pro se litigants in the courthouse. 

            Third, New York should follow Utah’s lead and develop a “regulatory sandbox,” where those who wish to explore legal services models outside our current regulatory structure can do so under tight supervision.  Upsolve’s program would have been a perfect fit for that model. 

            The short of it is that we continue to strictly adhere to a regulatory structure that is not meeting the needs of indigent and middle-class litigants, who simply cannot afford to hire a lawyer and have little choice but to handle their problems pro se.  We are constantly told that our existing lawyer regulatory structure, allowing only lawyers to provide legal serviced, is the only way to protect the public and uphold “core values” of our profession.  It is as if doctors suddenly decided to get rid of registered nurses, nurse practitioners and the like, because it is better to have no medical help at all than a “lesser” service. 

            We know that is not true for medicine, and we know it is not true for us. As Judge Crotty implicitly found, the Upsolve program will satisfy our profession’s “core values” despite the fact that its Justice Advocates will  not be lawyers.  We will never know if other, equally useful and protective alternative models can be developed unless we create regulatory structures to let people try.

---

Ronald C. Minkoff

Treasurer, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 & NYCLA’S May 4th Forum on Abortion Rights

As we prepare for NYCLA’s May 4 forum on abortion rights, and the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, I was extremely disappointed at certain questions asked and points raised in the oral argument of Dobbs.  Some statements made by certain of the Justices bordered on the disingenuous.

For example, Justice Brett Kavanaugh asked if it weren’t true that major landmarks in Supreme Court jurisprudence resulted from overruling prior precedent.  It is certainly true that Brown v. Board of Education overruled the “separate but equal” doctrine established in Plessy v. Ferguson.  But left unstated was that, if Dobbs does in fact overrule Roe v. Wade, this will be the first time that overruling a major, long-standing individual rights precedent will result in a RESTRICTION, rather than an expansion, of an individual right.  This omission is material.

Similarly, Justice Amy Coney Barrett asked whether so-called “safe haven” laws that permit women to drop off unwanted newborn babies weren’t an adequate alternative remedy to abortion.  As a mother of seven she surely knows the difference.

Even Chief Justice John Roberts referred inappropriately to Justice Blackmun’s private working papers, created in connection with initial drafting of the Roe opinion, and reflecting Justice Blackmun’s early thinking on the “viability” line.  Clearly Justice Blackmun’s thinking evolved between then and issuance of the final opinion.  As lawyers we all know how this evolution occurs during the drafting process.

Just as disingenuous is Mississippi’s overall approach to the case.  The state statute at issue bans abortions after 15 weeks, and Mississippi’s Attorney General filed a certiorari petition seeking to defend that statute.  It was only after certiorari was granted that the state switched its position to a full-on assault on Roe v. Wade and its successor, Planned Parenthood v. Casey.  The Supreme Court need not go so far as to overrule Roe or Casey outright to uphold the Mississippi statute.  Given the switch in the state’s position between the certiorari petition, and briefing and argument, an appropriate outcome could be to dismiss the writ of certiorari as improvidently granted.  Already some states are enacting abortion restrictions that go well beyond what the Mississippi statute allows.

Also relevant is how far any limitations on Roe or Casey might extend to other private and personal rights and liberties.  Would it limit the right to gay marriage recognized less than a decade ago in Obergefell v. Hodges?  Or even the right to contraception and consensual sexual behavior recognized some 60 years ago in Griswold v. Connecticut?  Potential collateral consequences must be considered and understood.

We await the Court’s decision.  In the meantime, please consider registering for our May 4 program.

                                                                                          Richard P. Swanson

                                                                                          Vice President, NYCLA

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.

New York County Courthouse Takes “Centre” Stage

Three Initiatives Breathe New Life and Understanding into 60 Centre Street, One of Manhattan’s Most Beloved Legal Landmarks

By Adrian I. Untermyer, Esq.

---

The grand colonnade of the New York County Courthouse is illuminated by the evening sun. (Credit: Adrian Untermyer)

NEW YORK, NY – “Manhattan Supreme Court,” as the New York Times’ James Barron succinctly put it[1] , “is famous as a backdrop for the television show ‘Law & Order.’” But as the New York County Courthouse at 60 Centre Street (“Courthouse”) celebrates its 95^th birthday in 2022, this distinctive, six-sided judicial monolith is finding new relevance with exhibits, art installations, and a lengthy feature in a new legal history of New York County – all while continuing its robust roster of legal duties.

The Courthouse’s ornate interior is replete with architectural detail and references to legal history. (Credit: Adrian Untermyer)

The imposing Courthouse fills out the northeast corner of Foley Square in Lower Manhattan and is home to the Civil Branch and Appellate Term of the Supreme Court of New York County. Other duties include housing chambers of the Hon. Milton Tingling, who serves with distinction as the first Black New York County Clerk and is believed to be the first county clerk in New York State history to first serve as a Justice of the Supreme Court.

Today’s Foley Square site was not always a locus of the law. The Courthouse’s plot previously formed part of a rough-and-tumble tenement community[2]  known as “Five Points.” Up until the 1920s, Manhattan’s Supreme Court resided in a series of other mixed-use buildings, culminating in its penultimate location within the so-called “Tweed Courthouse.” That structure – which remains in use as the headquarters of New York City’s Department of Education – earned its “Tweed” moniker thanks to the antics of William “Boss” Tweed [3] , leader of the Tammany Hall political machine. Tweed and Tammany infamously worked to pad construction costs on the old courthouse and pocket the excesses.

An 1871 cartoon depicts “Boss” Tweed with a head full of cash, in reference to his motivations on the “Tweed” Courthouse job and many others. (Credit: Thomas Nast, Public Domain)

By the early 1900s, with Manhattan’s population burgeoning with new immigrants drawn to new industries, the borough’s courts found themselves overcrowded and overextended. In response, Manhattan civic leader[4] George F. McAneny joined forces with a host of other local luminaries to push for a new courthouse district north and east of City Hall. Today’s Courthouse opened in 1927 as the result of that effort and was handsomely designed by notable Boston-based architect Guy Lowell.

The Courthouse was well-received in its time, and even saw some improvements over the years. In 1936, a thirty-foot-high mural entitled “Law Through the Ages” was completed in the Courthouse’s massive central rotunda. The mural was crafted by artist Attilio Pusterla thanks to Depression-era Works Progress Administration funds, and depicts our society’s legal history in bright, vibrant detail that can still be witnessed today.

The Courthouse’s magnificent rotunda is home to a WPA-era mural depicting what attorney and historian Brad Vogel dubbed the “lawgivers” across the centuries. (Credit: Adrian Untermyer)

Yet time was not kind to the old courthouse. Both fiscal crises and general apathy took their toll, and some portions of the structure deteriorated. The building’s devotees, including the late and longtime New York County Clerk Norman Goodman, and his deputy, John Werner, often found themselves springing into action to solve preservation crises. “We raised as much as $750,000” for repairs, recalled Goodman in a 2009 oral history[5] , who also remembered “put[ting] a stop” to an ill-fated City initiative that would have ripped out the Courthouse’s distinctive Tiffany chandeliers in favor of fluorescent lights.

Elements of the “Magnificent Mr. McAneny” exhibition are on display beneath the “Law Through the Ages” mural in the Courthouse’s rotunda. (Credit: Brad Vogel)

There is plenty of restoration still to be done. Yet today’s post-COVID Courthouse brims with energy and vigor thanks to three recent interventions. First up is a new traveling exhibition located underneath the “Law Through the Ages” mural in the monumental rotunda area. Entitled “Magnificent Mr. McAneny”  and curated by your correspondent, the exhibit traces the aforementioned George F. McAneny’s life and legacy, including his efforts to bring the complex Courthouse project to fruition. For full details and to plan your visit, head to the Friends of George McAneny’s website[6] .

Second-in-line is a triumphant work of public art honoring one of New York County’s forgotten legal heroines: Rebecca Salome Foster, who was known as the “Tombs Angel” for her work ministering arrestees held in New York County pending trial. As the New York Times’ Peter Libbey wrote [7] , Foster lent “[a] sympathetic ear” to the incarcerated, along with “a zeal to investigate their cases and a willingness to plead their cause with judges.”

The “Tombs Angel” tragically passed in the 1902 Park Avenue Hotel Fire. Although mourners installed a nearly thousand-pound memorial in the Criminal Courts to her memory, it was dismantled and nearly lost following that building’s demolition. Luckily, the aforementioned John Werner spearheaded the memorial’s restoration and reinstallation inside the Courthouse’s entrance chamber.

The memorial to “Tombs Angel” Rebecca Salome Foster is now on permanent display in a niche to the right of the Courthouse’s main entrance, and was lovingly restored by A. Ottavino Corp. (Credit: Adrian Untermyer)

To visit it, head up the main outdoor staircase and head to the right-hand alcove just inside the Courthouse doors; to learn more about Foster’s legacy, see John Werner’s recent piece [8] on the Judicial Notice blog.

Last-up in the Courthouse’s newfound resurgence is its prominent place in a new volume published by the Historical Society of the New York Courts. This “History of New York County Bench and Bar” devotes an entire chapter to the long and chaotic sequence of events leading to the Courthouse’s formation. The chapter is authored by New York University’s Dr. Jon Ritter and may be downloaded by visiting the County Legal History page [9] of the Historical Society of the New York Courts’ website and clicking on “New York County.”

Taken together, these three signature initiatives are intended to raise awareness of the Courthouse’s unique role in the history of New York and the nation. One can only hope that the added attention will result in a robust, “tip-to-tail” restoration effort in time for the Courthouse’s 100^th birthday in 2027.

The Courthouse’s remarkable fourth-floor Jury Assembly Room is named for the late County Clerk Norman Goodman and features extensive murals depicting the history described within the new “History of New York County Bench and Bar.” (Credit: Adrian Untermyer)

But even if the culmination of these efforts brings just one more visitor to 60 Centre’s hallowed walls, the spirits of George F. McAneny, Rebecca Salome Foster, Norman Goodman, and so many, many others will doubtlessly rest easier – all knowing that the spirit of justice remains alive, well, and kicking on that unforgettable corner abutting Foley Square.

---

Adrian Untermyer is an attorney, urbanist, and historian specializing in New York’s legal and transportation legacies. He fell in love with 60 Centre Street as a college student living in the neighborhood and worked extensively inside the building over the ensuing years. Untermyer curated the Magnificent Mr. McAneny exhibition inside the Courthouse and served as Editor-in-Chief and co-author of the “History of New York County Bench and Bar.” For further information, please visit www.adrianuntermyer.com.

“Special Duty” & the Scope of Negligence Against Municipalities

On March 23, 2022, in Ferreira v. City of Binghamton, the Court of Appeals handed down a landmark decision expanding the scope of negligence claims against municipalities. 2022 NY Slip Op 01953 at *5-6 (Mar. 23, 2022). The Court of Appeals has long held that to bring a negligence claim directly against a municipality, the plaintiff must establish a “special duty” owed to the plaintiff that was greater than that owed to the public generally.

NYCLA and the National Police Accountability Project submitted a joint amicus brief because the case involved important questions for plaintiffs bringing civil rights claims and regular negligence claims against municipalities. In Ferreira, the Court apparently adopted one of the arguments advanced in our amicus brief to hold that a “special duty” may be established where the police affirmatively created a dangerous situation, and then took direction and control of the dangerous situation they created. Notably, ours was the only brief to make this argument—it was not made by any of the parties or other amici.

The case arose from an early morning “no knock” search warrant executed on August 23, 2011 to search for drugs. Unknown to the police, Jesus Ferreira, an overnight guest, was in the living room on the couch. An officer got scared and shot Ferreira, who was unarmed; while Ferreira survived, he had to have his spleen removed.

At trial in the Federal District Court for the Northern District of New York, the jury found the City of Binghamton liable for negligently panning the raid; but the District Court Judge granted the City’s motion to set aside the verdict, holding that New York’s “special duty” rule foreclosed municipal liability for negligent planning of the raid.

Ferreira appealed to the Second Circuit, which issued a comprehensive 84-page opinion that explained the Binghamton Police Department could have been negligent in planning the execution of the warrant. However, after exhaustively reviewing New York caselaw, the Second Circuit determined that it was conflicting and contradictory, and sent the following certified question to the New York Court of Appeals: “Whether [Plaintiff] has failed to establish the City’s liability for its negligence in planning the [police] raid in view of the fact that, as Ferreira concedes, the City owed no special duty to him beyond the duty of care it owed to the public generally.” Ferreira v City of Binghamton, 975 F.3d 255 (2nd Cir. 2020).

In answering the certified question, the Court of Appeals found that Ferreira had established a special duty (even though he had conceded at trial that that he could not do so). In doing so, the Court apparently expanded the third of three methods for establishing a “special duty.”

Under New York case law, there are three ways to establish a “special duty”:

1. The plaintiff belonged to a class for whose benefit a statute was enacted; 

• That the government worker formed a “special relationship” with the plaintiff; and 

• The municipality took positive control of a known and dangerous safety condition.

Applewhite v Accuhealth, Inc., 995 N.E.2d 131, 135 (2013)

The Court relied on one of the few prior Court of Appeals cases that relied on the “took positive control of a known and dangerous safety condition” method: Smullen v City of New York, 28 NY2d 66 (1971). There, a municipal inspector on a worksite informed the decedent that a trench did not need to be shored just before it collapsed, killing the decedent. The inspector was the only person in authority then present. The Court found that a special duty was established because the inspector took positive action in assuming direction and control over the dangerous situation.

In our amicus brief, NYCLA and NPAP first argued that a “special duty” should not apply in this situation. The Court rejected that argument, but apparently adopted our alternative argument that a special duty could be established under Smullen:

“this Court should find that there is a special duty here because of the dangerous situation the officers, and the City, created. This raid is an example of a municipality “assum[ing] positive direction and control in the face of a known, blatant and dangerous safety violation” (McLean v City of New York, 12 N.Y.3d 194, 199 [2009]). This Court has found municipal liability under the special duty rule when a municipal agent had control over “an ‘inherently dangerous’ instrumentality which is in the same class as an explosive substance, inflammable material, a live electric wire or a spring gun” (Smullen v City of New York, 28 N.Y.2d 66, 71 [1971]). In this case, as in Smullen, municipal officials were physically present at the scene, were aware of that inherent danger, and acted positively in assuming direction and control at the accident site (in Smullen, by representing that an area was safe to enter, and in the instant case by affirmatively creating a dangerous situation through their negligent planning).  Indeed, here, Ferreira was among a limited class of people for whom the City assumed a duty in executing the “no-knock” warrant.”

(Lauren Bonds, Robert Rickner and Elliot Shields, Amicus Brief of the New York County Lawyers Association and National Police Accountability Project p. 27-28, Ferreira v. City of Binghamton, CTQ 2020-00007, available at: https://www.nycla.org/pdf/FerreiravBinghampton-NYCLA-amicus-amicusbrf.pdf). Notably, the Smullen argument was not advanced by the plaintiff.

The Ferreira Court majority applied this method of establishing a “special duty” to the facts before it as follows:

“In a no-knock warrant situation, the police exercise extraordinary governmental power to intrude upon the sanctity of the home and take temporary control of the premises and its occupants. In such circumstances, the police direct and control a known and dangerous condition, effectively taking command of the premises and temporarily detaining occupants of the targeted location. As a result, the municipality’s duty to the individuals in the targeted premises, a limited class of potential plaintiffs, exceeds the duty the municipality owes to the members of the general public. A special duty therefore arises when the police plan and execute a no-knock search warrant at an identified residence, running to the individuals within the targeted premises at the time the warrant is executed. In other words, in those circumstances, the police take positive control of a known and dangerous condition, creating a special duty under the third situation recognized by this Court.”

Id. at 20–21.

            The special duty rule is an issue in every municipal negligence case. By its holding in Ferreira, the Court of Appeals has expanded the ability of plaintiffs to satisfy that rule under the third prong, where the police affirmatively created a dangerous situation, and then took direction and control of the dangerous situation they created.

            In short, Ferreira appears to be a win for civil rights plaintiffs, who may now have an avenue for recovery—a negligence claim directly against the municipality—in circumstances where they would have previously been precluded, for example, because the individual officers were entitled to qualified immunity. This could apply to various scenarios involving police intervention. For example, the dissent points out that all home-entry warrants­­—not just no-knock ones—might qualify since the government is arguably creating a “dangerous safety condition” by executing any home-entry warrant, especially if known dangerous criminals are involved. But it could also apply in the context of police responding to protests and other scenarios where they had time to plan the police response in advance. Importantly, if the plaintiff can show a “special duty” in this manner, they will not have to show “direct contact” with the plaintiff or that any implied promises were made.

Elliot Dolby Shields, Esq.
Co-Chair NYCLA Committee on Civil Rights and Liberties

The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.