Legal Report September 2016
U.S. JUDICIAL DECISIONS
Concealed carry. There is no Second Amendment protection for carrying a concealed weapon in public, a federal appeals court ruled.
The ruling stems from a case brought by plaintiffs living in San Diego and Yolo counties in California who sought to carry concealed firearms in public for self-defense and were denied licenses to carry because they did not satisfy good cause requirements in their counties. Under California law, applicants for a concealed carry license must show “good cause” to carry a concealed firearm. County sheriffs decide what “good cause” is.
San Diego County defined good cause as “a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way,” according to court documents. “Simply fearing for one’s personal safety alone is not considered good cause.”
Yolo County does not define good cause, but gives examples of where good cause does or doesn’t exist. Victims of violent crime, or documented threats of violence, and business owners who carry large sums of cash or work in remote areas where they are likely to encounter dangerous situations are instances where good cause exists.
The plaintiffs contended that satisfying these good cause requirements violated their Second Amendment rights to bear arms in public. They filed suit, and through a series of court proceedings, their case reached the Ninth U.S. Circuit Court of Appeals, which ruled in favor of the California counties.
“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment—whatever the scope of the protection may be—simply does not extend to the carrying of concealed firearms in public by members of the general public,” wrote Judge William Fletcher for the court.
“Because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry—including a requirement of ‘good cause,’ however defined—is necessarily allowed by the Amendment,” Fletcher explained. (Peruta v. County of San Diego, U.S. Court of Appeals for the Ninth Circuit, No. 10-56971, 2016)
Disclosure. A New York appeals court order reversed a previous court order, shielding documents from the New York City Police Department’s (NYPD) use of unmarked x-ray vans to detect explosives from Freedom of Information Law (FOIL) requests.
As part of its counterterrorism operations, the NYPD uses a Z-backscatter van, which is a mobile x-ray unit that scans vehicles or buildings for evidence of explosives, drugs, and other materials. When a backscatter van is used to covertly scan vehicles, occupants of the vehicle and nearby pedestrians are exposed to low doses of radiation.
Michael Grabell alleged that these doses of radiation—known as ionizing radiation—are known to mutate DNA and cause cancer. He filed a FOIL request with the NYPD, seeking various documents about the Z-backscatter vans.
The NYPD denied Grabell’s request. Through a series of appeals his request reached the Supreme Court of New York. The court granted his request to require the NYPD to disclose, with certain redactions, “reports of past deployments of the vans that are not related to any ongoing investigation; policies, procedures, and training materials regarding the vans; records sufficient to disclose the total number and aggregate cost of vans purchased by or for NYPD; and tests or reports regarding the radiation dose or other health and safety effects of the vans.”
The NYPD appealed the court’s decision, arguing that in light of the ongoing threat of terrorism, releasing information about the strategies, tactics, uses, and numbers of the vans “would undermine their deterrent effort, hamper NYPD counterterrorism operations, and increase the likelihood of another terrorist attack,” according to court documents.
The NYPD also said that disclosing information about previous use of the vans “would allow terrorists to infer...locations and times when NYPD does not use them, and would permit a terrorist to conform his or her conduct accordingly.”
The state appeals court found that the NYPD’s claims allowed the materials on its use of the vans to be exempt from disclosure under FOIL’s law enforcement and public safety exemptions. This is because materials can be exempt from FOIL requests if they were “compiled for law enforcement purposes,” would “reveal [nonroutine] criminal investigative techniques or procedures,” and “could endanger the life or safety of any person.”
However, the appeals court upheld the Supreme Court’s ruling that it disclose tests or reports regarding the radiation dose or other health and safety effects of the vans. This “…release of NYPD’s records containing health information about the vans would neither reveal nonroutine investigatory techniques or procedures, nor endanger public safety,” the appeals court wrote. (Grabell v. New York City Police Department, New York Appellate Division, First Department, No. 03685, 2016)
Overtime. President Barack Obama issued an executive order that makes 4.2 million more U.S. employees eligible for overtime compensation.
Under the order, most salaried workers earning up to $47,476 a year must be paid time-and-a-half overtime pay when they work more than 40 hours during a week. The former cutoff was $23,660. The order also automatically updates the cutoff for overtime compensation every three years.
Certain workers, including teachers, doctors, and outside sales representatives are excluded from the rule, which goes into effect on December 1, 2016.
Sexual assault. The Senate passed a bill that clarifies what basic services sexual violence victims are entitled to.
The Sexual Assault Survivors’ Rights Act (S. 2566) ensures that victims have a right to a free medical forensic examination, access the results of forensic tests on their rape kit, and preservation of their rape kit for the entire statute of limitations in their state.
The bill also requires state officials to notify the victim in writing 60 days before destroying a kit to allow the victim to request an extension.
Sen. Jeanne Shaheen (D-NH) introduced the bill, which has 10 bipartisan cosponsors. It now moves to the House of Representatives for consideration.
Terrorism. Hungary enacted a constitutional amendment that allows the government to limit social media and public assembly in a terrorist emergency.
The amendment, the sixth to Hungary’s Basic Law adopted in 2012, allows the country’s parliament to declare a state of emergency for a maximum of 15 days in the event of a terrorist threat or attack.
During this state of emergency, Hungary’s parliament can use 30 new powers, including deploying Hungarian Defense Forces to protect the country, introducing special counterterrorism measures, increasing control of the Internet, prohibiting events and demonstrations in public spaces, and more.
The amendment was passed 153 to 3 with one abstention. It went into effect on July 1, and critics claim it could be misused to allow Prime Minister Viktor Orban to seize more power.
Encryption. The U.K. House of Commons passed a bill that limits the use of encryption and gives spy agencies the ability to engage in bulk surveillance.
The Investigatory Powers Bill allows the government to require technology companies to undo any data encryption they have put into place, but only when it is technically feasible and not “unduly expensive” to do so. Companies will also have the ability to appeal to the secretary of state if they are ordered to break their encryption.
Additionally, the bill requires Internet and phone carriers to collect and store data on customers, and allows intelligence agencies to remotely access smartphones and other technological devices.
The bill now moves to the House of Lords for consideration.