COUNTY LAWYER NEW YORK
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NYCLA Issues Its Report on Proposed Gun Control
ship, transport and receive firearms or ammunition in interstate commerce and then regulates sales and transfers by those federally-licensed. For example, licensed dealers are prohibited from selling firearms or ammunition to certain classes of individuals, including individuals under indictment or convicted felons; unlawful users of controlled substances; those adjudicated mentally defective or committed to a mental institution; or those convicted of a domestic violence misdemeanor.
By Jacqueline C. Wolff, Esq.
The recent events at Sandy Hook Elementary School in Newtown, Connecticut, are the latest in a series of 47 documented mass shootings1 dating back to the 1999 Columbine massacre in Colorado. In response, several legislative proposals regarding gun control are now on the table, some of which are bipartisan. NYCLA’s Board of Directors engaged in a special project to review these proposals, first in terms of whether, had they been in effect, if they would have prevented past mass shootings.2 Second, the legislation was reviewed in terms of whether it could pass constitutional muster, focusing on the Second Amendment, due process considerations, and the Commerce Clause. The analysis concludes that many of the proposals may have prevented some of the carnage. The analysis also concludes that under District of Columbia v. Heller3, the most recent statement by the Supreme Court regarding the Second Amendment, subsequent case law and decisions regarding due process and commerce clause considerations, most of the proposals appear to rest on safe constitutional grounds. Below is a summary of the NYCLA Report resulting from the project.
The Report first summarizes the current statutes covering gun manufacturing, sales and transfer. Essentially, under current law the federal government licenses importers, manufacturers and dealers to
The statutes also require that every transfer of a firearm by a licensed dealer only be completed after the purchaser undergoes a background check using the National Instant Criminal Background Check System (NICS). The Report explains that the purpose of background checks is to prevent the sale of firearms to individuals who are in those classes not permitted to possess firearms. Current laws also require that all firearms sold, delivered or transferred by licensed firearms dealers include either a safety device on the firearm itself or come with a gun safe or case. There are no background check requirements for selling ammunition. There are also no restrictions on mail (See Gun Control on Page 14)
Comprehensive Immigration Reform and “The Fullness of Time” By Eugene Glicksman, Esq.
“Yes, Minister” was a wonderful satire of the British government on BBC Television from 1980 to 1984, followed by “Yes, Prime Minister” from 1986 to 1988. In this series, Paul Eddington portrayed The Right Honorable James (“Jim”) Hacker, MP, an earnest and honest politician trying his damnedest to reform the government while his Permanent Secretary, Sir Humphrey Appleby (played by Nigel Hawthorne) in particular, and the British Civil Service, in general, try their utmost to thwart his actions at each and every turn. Fans of this series well remember Sir Humphrey’s counsel that matters would be resolved “in the fullness of time, Minister.” The meaning was clear: if you wait long enough and do nothing, the problem will be forgotten and thus resolve itself.
As Oscar Wilde said, “Life imitates art, more than art imitates life.” It would seem that the “fullness of time” position appears to have been adopted by the eight Senators - Chuck Schumer (D-NY), Dick Durbin (D-IL), Bob Menendez (D-NJ),
Michael Bennet (D-CO), John McCain (R-AZ), Marco Rubio (R-FL), Lindsey Graham (R-SC), and Jeff Flake (R-AZ) who presented a plan for comprehensive immigration reform on January 28.
Their plan, in broad strokes has four goals:
1. Create a pathway to U.S. citizenship for the approximately 11 million undocumented immigrants currently in the U.S.; 2. Reform the legal immigration system and attract the “best and brightest”; 3. Mandate employment verification; 4. Admit new workers while protecting the rights of American workers.
These are high-minded goals with wonderful-sounding aims. As is usual, however, the devil is in the details: the first part of the proposal makes its passage highly unlikely.
According to the Senators’ proposed plan, the implementation of the pathway to citizenship is “contingent upon our success in
securing our borders and addressing visa overstays.” This begs the question as to how much “success” will be considered enough in order for the legalization program to begin. It would seem that the Senators believe that the record-setting number of deportations in the last few years and already strengthened border enforcement stand for nothing.
Under the proposed plan, undocumented immigrants would first register with the federal government and, after successfully passing a background security check, paying a fine and any back taxes due, they would be granted “probationary legal status.” While this is happening, a commission of governors, law enforcement officials, and community leaders from southwestern border states will implement and oversee new border security measures. Until this commission finds that these new security measures have been implemented and are in effect, these “probationary immigrants” will not be permitted to apply for lawful permanent residence. (See Immigration Reform on Page 15)
Volume 7 / Number 21
I N S I D E
Judicial Reception Remarks by Hon. Kristin Booth Glen.......................7 Marijuana Reform..........13 Miscellaneous Tariff Bill...2 Taxation Committee Amicus Brief ....................3 T A B L E O F C O N T E N T S Annual Meeting ................................6 CLE Institute .....................................4 Digital Training Center CLEs .........10 Ethics Hotline..................................12 Gun Control...............................Cover Immigration Reform..................Cover Judicial Reception Remarks by Hon. Kristin Booth Glen............................7 Library Notes ..................................10 Marijuana Reform ...........................13 Message from Barbara Moses, NYCLA Foundation President..........6 Message from Stewart D. Aaron, NYCLA President .............................3 Recent Event Photos .........................8 Taking Financial Responsibility .....11 Tariff Bill...........................................2 Taxation Committee Amicus Brief ...3 Upcoming Events..............................9 What’s Tweeting..............................12
April 2013 / The New York County Lawyer
The Miscellaneous Tariff Bill in 2013 – What Importers Need to Know Now duty paid, the importer should preserve its right to the refund by filing a protest with CBP. A protest must be filed within 180 days following the final liquidation of the entry by CBP.9 If a protest is denied by CBP, the importer then has the opportunity to file an action at the U.S. Court of International Trade and have the claim heard by that court.10
By Mariana del Rio Kostenwein, Esq.
On December 31, 2012, the “U.S. Manufacturing Enhancement Act of 2010” expired.1 The expiration of this piece of legislation particularly impacts American companies importing raw materials, particularly chemicals, that will be used to manufacture products in the United States or those companies importing various miscellaneous finished products from abroad for sale in the United States.2 These importers would have continued to benefit from the reduced rates of duty had the provisions of the 2010 Act been renewed. While a new bill called the “U.S. Job Creation and Manufacturing Act of 2013” was introduced in the House on January 1, 2013 by Rep. Dave Camp, interestingly, Congress had not yet passed the new law before the 2010 Act expired.3 Importers must now pay duties on merchandise that only recently carried a reduced rate or was duty-free.4 American importers should, therefore, take appropriate steps now to preserve their rights to refunds of duties for merchandise that qualifies for preferential duty treatment should the bill become law later this year and have retroactive effect.
As importers are well aware, the Harmonized Tariff Schedule of the United States (HTSUS) is the document that sets duty rates on imports and is also used to collect statistics on merchandise imported into the United States.5 Since the HTSUS is a statute, it can only be amended via the legislative process.The HTSUS is updated annually and is also often amended through special pieces of legislation that are lobbied for by particular companies or industry groups representing the interests of their members. Bills reducing the tariff rate on certain merchandise are drafted by members of Congress and are reviewed by various government agencies in order to ensure that the reduction of the tariff rate will benefit American industry.6 If a bill is found to be “non-controversial,” i.e., the tariff rate reduction request involves merchandise that: 1) has no domestic producers; 2) would make U.S. manufacturers more competitive if imported at a lower duty rate; and 3) would not result in a loss of revenue of more than $500,000, then
the individual bills are packaged together into a special piece of legislation known as the Miscellaneous Tariff Bill, or MTB.7 The MTB, once passed, temporarily modifies Chapter 99 of the HTSUS and provides U.S. manufacturers the opportunity to obtain needed inputs at lower costs in what is becoming an increasingly competitive global marketplace as well as create jobs in the process. The MTB also results in savings for consumers.
As discussed above, today importers find themselves without the benefits once provided by the 2010 Act and without a renewal in place. For this reason, importers should be aware of: 1) the administrative procedures established by U.S. Customs and Border Protection (“CBP”) that should be followed in order to obtain special tariff treatment should Congress pass the bill in 2013 with retroactive effect, 2) the possibility that the importer may need to file protests with CBP in case a refund is not obtained prior to liquidation, and 3) the records the importer must maintain to support a claim for refunds on merchandise falling under heading 9902, HTSUS, should CBP request substantiation of the claim.
1. Follow Administrative Procedures in Order to Claim Refund If the U.S. Job Creation and Manufacturing Act of 2013 is passed later this year and the reduced tariff rates are given retroactive effect, importers should pay attention to procedures put in place by CBP in order to claim refunds. In order to make this process as easy as possible, importers should develop a procedure or put a system in place for flagging entries on which it may wish to obtain duty refunds in the future after the MTB is passed. Importers should also heed the deadlines for the filing of claims that are set by CBP and provide the appropriate information to CBP in order to allow the agency to locate the entry on which a claim is filed.
2. File Protests with CBP on Liquidated Entries Liquidation is CBP’s final assessment of duties on a particular entry of merchandise. CBP must liquidate entries with one year of importation, if not, they are deemed liquidated.8 In case an importer’s entry is liquidated by CBP prior to obtaining a refund on
3. Recordkeeping is Essential Until the MTB is passed by Congress, however, importers must make sure they are paying the appropriate duty to CBP and should prepare accordingly in order to request refunds in case the law is given retroactive status. As they always should, importers should make sure they are keeping adequate records in order to substantiate a claim for special tariff treatment under heading 9902, HTSUS. Documents that an importer should keep on hand include the entry summary, commercial invoices, and other documentation related to the entry on which a refund will be claimed.
Mariana del Rio Kostenwein, Esq. is the Vice-Chair of NYCLA’s Multilingual Lawyering Committee and is currently an Associate with Simon Gluck & Kane LLP, a firm specializing in Customs and International Trade Law. She counsels importers and exporters as well as other players in the international trade arena. References: 1 See United States Manufacturing Enhancement Act of 2010, Pub. L. No. 111-227, 124 Stat. 2409 (2010). 2 See Heading 9902, HTSUS (2013). 3 See H.R. 6727, 112th Cong. (2013). 4 See Heading 9902, HTSUS (2013). 5 See Harmonized Tariff Schedule of the United States, 19 U.S.C. § 1202 (2013). 6 See Daniel Griswold, The Miscellaneous Tariff Bill: A Blueprint for Future Trade Expansion,CATO INSTITUTE’S CENTER FOR TRADE POLICY STUDIES, Sept. 9, 2010, at 2-3. 7 See id.at 2. 8 See 19 C.F.R. § 162.80(a)(2)(i). 9 See 19 C.F.R. § 174.12(e)(1). 10 See 28 U.S.C. § 1581(a).
Please join us to hear James R. Silkenat, President-Elect of the American Bar Association, speak on the topic of American Legal Education at a Crossroads: Training Lawyers and Judges for the Future. He will be joined by Michael Cardozo, New York City’s Corporation Counsel.
April 2013 / The New York County Lawyer Dear Readers:
On March 18, NYCLA celebrated the 50th anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, which recognized the constitutional right to counsel in a criminal case. That decision has particular resonance with me since my law firm, Arnold & Porter, represented Clarence Earl Gideon pro bono in the U.S. Supreme Court. The panel discussion that occurred on March 18 during our program illuminated the fact that despite the passage of 50 years, the full promise of Gideon remains unfulfilled. Our legal services providers simply do not have the time or resources to provide adequate representation to many criminal defendants.
tion to those who cannot afford to pay for it. We also invite attorneys to participate in our pro bono projects — a variety of meaningful opportunities that use volunteer attorney time efficiently to meet pressing community needs. As a profession, we owe it to our citizens and our courts to ensure that constitutional imperatives are being met.
Stewart D. Aaron President, New York County Lawyers’ Association
Part of NYCLA’s mission is to provide “free legal services for the indigent, lowincome and other persons in need” and so the Association encourages all of its members to assist in providing legal representa-
Tweet me @NYCLAPres and share how you are helping to fulfill the promise of Gideon.
Almost every day, there is a new headline related to United States taxpayers with unreported offshore bank accounts. In one of its latest enforcement efforts, the United States government has been serving grand jury subpoenas on hundreds of taxpayers who are suspected of having foreign bank accounts, ordering them to produce their own account records, in effect to aid their own prosecutions for tax evasion and other offenses.i These subpoenas present a significant constitutional question: is the act of producing foreign account records a testimonial act protected by the Fifth Amendment privilege against selfincrimination?
There has been substantial litigation about this issue over the past two years. Recently, in connection with a petition for certiorari filed with the United States Supreme Court in In re T.W. v. United States, No. 12-853, NYCLA’s Taxation Committee submitted an amicus curiae brief, arguing that the Fifth Amendment act of production privilege should apply. NYCLA Taxation Committee member, Caroline Rule of Kostelanetz & Fink, LLP, was the primary author of the amicus brief and has represented several individuals in connection with grand jury subpoenas issued in the Southern and Eastern Districts of New York.The NYCLA Taxation Committee submitted the amicus brief because it believes that this is an issue of exceptional constitutional importance. Although, as of yet, there is no split between the Courts of Appeals in these cases, the Supreme Court has ordered the Solicitor General to respond to the petition in T.W., which may indicate its interest in this issue.
The petition in T.W. seeks review of the Seventh Circuit decision, In Re Special February 2011-1 Grand Jury Subpoena Dated September 12, 2011, 691 F.3d 903 (7th Cir. 2012). In that case, the district court initially ruled in favor of the individual who had been subpoenaed, explaining that “the Government must do more work than simply requiring [the target] to incriminate himself by producing his own files if it wishes to find evidence during this grand jury investiga-
tion that [he] has an incriminating interest in foreign bank accounts.” In re Special February 2011-1 Grand Jury Subpoena Dated September 12, 2011, 852 F. Supp. 2d 1020, 1021 (N.D. Ill. 2011). The Seventh Circuit reversed the district court, relying largely on a Ninth Circuit decision in In re Grand Jury Investigation M.H.,, 648 F.3d 1067 (9th Cir. 2011). In addition, the Fifth and Eleventh Circuits have compelled subpoenaed parties to turn over their foreign account records. In re Grand Jury Proceedings, No. 4-10, — F.3d —, 2013 WL 452768 (11thCir. Feb. 7, 2013); In re Grand Jury Subpoena, 696 F.3d 428 (5th Cir. 2012). The issue soon will be argued before the Second Circuit in In re Grand Jury Subpoena dated February 2, 2012, No. 13-403, an appeal from the decision in United States v. John Doe, 12-MC-553 (JFB) (E.D.N.Y. Jan. 14, 2013).
The act of production privilege is described in the Supreme Court’s decision in United States v. Hubbell, 530 U.S. 27 (2000),which held that the Fifth Amendment affords the same protection to the testimonial aspects of the act of producing documents as it does to any other compelled testimony. In the recent cases involving grand jury subpoenas of foreign bank account records, the government has argued that the Fifth Amendment privilege against selfincrimination does not apply because these taxpayers were required by regulation to maintain their foreign bank account records. The required records doctrine arises from Shapiro v. United States, 335 U.S. 1 (1948), a case decided when the contents of private papers were still considered to be protected by the Fifth Amendment under Boyd v. United States, 116 U.S. 616 (1886). Shapiro considered whether records that were required to be kept by statute were “public” or “private,” which was then the critical question in determining whether the records were privileged. Since Shapiro, however, the Supreme Court has abandoned Boyd, and concluded that the Fifth Amendment privilege does not protect the contents of records, public or private. Instead, it protects individuals against being compelled to produce records when the act of producing them would be testimonial and incriminatory.
COUNTY LAWYER Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Toni Valenti Director of Marketing and Membership Development Stewart D. Aaron President New York County Lawyers’ Association
NYCLA’s Taxation Committee Files Amicus Curiae Brief Urging the United States Supreme Court to Protect the Fifth Amendment Act of Production Privilege By Megan L. Brackney, Esq.
Following this reasoning, the Supreme Court held in Fisher v. United States, 425 U.S. 391 (1976), and United States v. Doe, 465 U.S. 605, 67-68 (1984), that the act of producing documents in response to a subpoena can have a testimonial or communicative aspect of its own, aside from the contents of the documents. In Grosso v. United States, 390 U.S. 62 (1968), the Supreme Court developed a three-part test that must be satisfied before the required records doctrine can be applied: (i) “the purposes of the United States’ inquiry must be essentially regulatory”; (ii) the information sought must be “of a kind which the regulated party has customarily kept”; and (iii) “the records themselves must have assumed ‘public aspects’ which render them at least analogous to public documents.” In the recent cases involving grand jury subpoenas for foreign bank account records, the government and the courts have relied on the required records doctrine to compel compliance. Specifically, 31 C.F.R. § 1010.420, promulgated under the Bank Secrecy Act, 31 U.S.C. § 5311 et seq. (the “BSA”), requires anyone having “a financial interest in or signatory authority over” a foreign bank account to maintain for five years, and keep available for inspection, records containing the “name,” “number or other designation,” and “type” of account; the “name and address of the foreign bank or other person with whom such account is maintained”; and “the maximum value of each such account during [each year].” Id. This regulation operates in conjunction with 31 C.F.R. § 1010.350, under which any financial interest or other authority over a foreign financial account must be reported annually to Treasury on Form TD F 90-22.1, “Report of Foreign Bank and Financial Accounts,”commonly-known as an “FBAR.”
In its amicus brief, the NYCLA Taxation Committee argued that the Seventh Circuit improperly collapsed the entire Grosso test into just its first prong by holding that because it believes that the government's inquiry is essentially regulatory, the records required by the regulation must be customarily kept by those (See Taxation Committee on Page 12)
Ariella Greenbaum Editor Senior Communications and Social Media Manager
New York County Lawyer is published by Long Islander Newspapers under the auspices of the New York County Lawyers’ Association. For advertising information, call 631-427-7000. Mailing address: 149 Main Street, Huntington, NY 11743. Copyright © 2013 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such use shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indicating the name and date of the Association publication from which the reprint is made. Subscription rate: $10.00 per year for non-members New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007. Periodicals postage paid is mailed at New York, NY and additional mailing offices. POSTMASTER: Send address changes to: New York County Lawyer, 14 Vesey Street, New York, NY 10007-2992. USPS #022-995 ISSN: 1558-5786 $10.00 of membership dues is deducted for a one-year subscription to the New York County Lawyer.
Photo Credits Dana Burr Ariella Greenbaum
April 2013 / The New York County Lawyer
CLE INSTITUTE Spring at the CLE Institute Special Guest Speakers Address Swiss Banks, Smuggling and Other Asset Recovery Issues on April 18: The 2007 National Money Laundering Strategy Report estimated that over $36 billion annually was being secretly transferred through U.S. bank accounts and U.S. shell companies. In addition, kleptocrats, Ponzi schemers, divorcing spouses, etc., can conceal assets by parking them in Swiss or other foreign bank accounts.
Join special guest speakers Jack Blum, Esq., associate counsel, assistant counsel, or special counsel to three U.S. Senate committees/subcommittees, Robert Fiechter, Des Gouttes & Partners, Geneva Switzerland who is also Deputy Secretary of the Supervisory Board of the Swiss Bank’s Code of Conduct and Program Chair Fred Abrams, Esq., who located tens of millions of dollars hidden in offshore tax havens and is cited by Forbes Magazine, The New York Times, MoneyLaundering.com, Reuters and FoxBusiness News, as they analyze: • how bank secrecy laws, multiple jurisdictions and smuggling are utilized in schemes to conceal vast sums of money • mutual legal assistance treaty relief and using letters rogatory as asset recovery tools • ways whistleblowers, or other tipsters, may help sniff out these monies, and • the difficulty lawyers face in dealing with whistleblowers – either as clients or as tipsters.
Ethics Programs This Month: Join NYCLA’s Ethics Institute, Criminal Justice Section, Tort Law Section and Solo/Small Firm Practice Committee for the following programs addressing specific ethical issues: • Criminal Law and Ethics: The Present State of Brady, A View from Both Sides, Tuesday April 23, 2013: A panel of experts including Bruce Green, Fordham Law School, Hon. Barry Kamins, Admin. Judge, Crim.
Matters, 2nd Jud. Dist., NYC Crim. Ct., Timothy J. Koller, Ex. Asst. DA, Richmond County, John P. O’Mara, Jr., Asst. DA, Kings County, John Schoeffel, Legal Aid Society and Ellen Yaroshefsky, Cardozo School of Law, discuss the ethical issues faced by prosecutors and defense attorneys related to the Brady decision • Hot Ethical Issues in Tort Law, Tuesday, April 30, 2013: Program Chair Richard M. Maltz, Counsel, Frankfurt, Kurnit, Klein & Selz, PC, Alan Friedberg, Special Counsel NYS Commission on Judicial Conduct, Barry Temkin, Mound Cotton Wollan & Greengrann, and Catherine Sheridan, Esq., former Dep. Chief Counsel, App. Div., 2nd Dept. Office of Special Counsel for Grievance Matters, will discuss the hot button ethical issues of concern to tort lawyers today, including the ethical parameters of using social media and the ethical limitations in charging, collecting and sharing fees.
Interactive Hands On Workshop on When to Litigate and When to Mediate: Join Lewis Tesser, Tesser, Ryan & Rochman, LLP, concentrating his practice in litigation and mediation, representing licensed professionals and professional practices, administrative law and commercial law, for To Litigate or Mediate? When and Why, Wednesday, April 24, 2013, a special program exploring the issue of when it is best to litigate a matter and when mediation is the preferred course of action. After an introductory discussion, including an analysis of the ethical implications, the program will feature a workshop using hands on exercises and hypotheticals. Interested in a Program, But Can’t Make it to the Live Lecture?
NYCLA’s CLE Institute has formed a strategic partnership with Lawline.com, a leading distributor of online content, to stream live
webinars of many of our live programs. Be sure to check the nycla website for a list of upcoming webinars, or visit the NYCLA branded on-demand and live webinar page at http://nycla.furthered.com/cle/index.php
April and Early May Programs
Bridge the Gap 1 – A Program for Newly Admitted Attorneys Consecutive Fridays, April 12 & 19, 2013; 9:00 AM – 5:00 PM 16 MCLE Credits: 3 Ethics; 7 PP/LPM, 6 Skills; Transitional and Non-transitional; 16 NJ Credits (3 Ethics; 13 General) Construction Insurance: What Construction Counsel Should Know Tuesday, April 16, 2013; 6:00 PM –9:00 PM 3 NY & NJ Credits: Breakdown TBD; Transitional and Non-transitional
Swiss Banks, Smuggling and Other Asset Recovery Issues Thursday, April 18, 2013, 6:00 PM – 9:00 PM 3 NY Credits: 1 Ethics; 1 Skills; 1 PP; Transitional and Non-transitional; 3 NJ Credits: 1 Ethics; 2 General;
Criminal Law and Ethics: The Present State of Brady, A View from Both Sides Tuesday, April 23, 2013; 6:00 PM – 8:00 PM 2 NY & NJ Credits: 2 Ethics; Transitional and Non-transitional
To Litigate or Mediate? When and Why Wednesday, April 24, 2013; 6:00 PM – 9:00 PM 3 NY Credit: 1 Ethics; 2 Skills; Transitional and Non-transitional; 3 NJ (1 Ethics; 2 General)
Marketing and Social Media Trends for Attorneys Thursday, April 25, 2013; 6:00 PM – 8:00 PM 2 NY Credits: 1 Ethics; 1 LPM; Transitional and Non-transitional; 2 NJ Credits (1 Ethics; 1 General)
Hot Ethical Topics in Tort Law Tuesday, April 30, 2013; 6:00 PM – 8:00 PM 2 NY & NJ Credits: 2 Ethics’ Transitional and Non-transitional
Managing Rent Regulated Property Tuesday, April 30, 2013; 9:00 AM – 12:00 PM 3 NY/NJ Credits: Breakdown TBA
The Role of Empathy in Judicial Decision Making Thursday, May 2, 2013; 6:00 PM – 9:00 PM 3 NY Credits: 1 Ethics; 2 PP; Transitional and Non-transitional; 3 NJ Credits: 1 Ethics; 2 General
How to Handle an Employment Discrimination Case Consecutive Tuesdays, May 7 & 14, 2013; 6:00 PM – 9:00 PM 6 NY Credits: 2 Ethics; 2 Skills; 2 PP; Transitional and Non-transitional; 3 NJ Credits: 2 Ethics; 2 General
Advice From More Experts: More Successful Strategies for Winning Commercial Cases in New York State Courts Tuesday, June 11, 2013; 9:00 AM – 5:00 PM 8 NY Credits: 1 Ethics; 4 Skills; 3 PP/LPM; Transitional and Non-transitional; 8 NJ Credits: 1 ethics; 7 General All NYCLA’s CLE Institute courses now available for New Jersey MCLE Credit New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey.
Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at www.nycla.org for more information and how to apply for Tuition Assistance. Check our website for course details, faculty, complete program descriptions and pricing. Be sure to check our website for a complete listing of programs.
NYCLA Member Advantage:
Unique CLE & Treatise Combo — Win Your Next Commercial Case!
Do you need up-to-the-minute practical information and strategies for winning commercial cases in New York State courts? Did you attend last spring’s program on commercial litigation and want to uncover even more strategies for winning commercial cases?
All litigators from experienced to newly admitted attorneys who seek the advantage for their clients in commercial litigation in New York State courts should attend NYCLA’s special CLE program, “Advice From More Experts: More Successful Strategies for Winning Commercial Cases in New York State Courts” on Tuesday, June 11, 2013 from 9 a.m. to 5 p.m. Led by Program Chair and treatise Editor-in-Chief Robert L. Haig of Kelley Drye & Warren LLP in New York City, this program will feature an extraordinary panel of accomplished professionals including seven distinguished judges, 31 well known commercial litigators, and six prominent in-house counsels for major corporations. This is truly a one of a kind event and it is only available through NYCLA. Utilizing interactive panel discussions, program speakers will focus on strategies
and practical advice for maximizing the effectiveness of each stage of the litigation. In particular, they will discuss techniques for advancing a client’s interests as well as potential pitfalls or traps for the unwary, and will cover: • Effective handling of dispositive motions • Document discovery • Mediation and arbitration • Ethical issues in commercial cases • Selection of experts and expert testimony • Trials and appeals to the Appellate Division • Insights into the client’s expectations, preferences, and requirements
Not only will you take away expert knowledge when you attend this program, but you will receive a copy of the critically acclaimed six-volume treatise Commercial Litigation in New York State Courts, published by NYCLA and Thomson Reuters, and a CD-ROM containing forms and jury instructions – a $660.00 retail value. Written by an incredible brain-trust of 144 expert attorneys and judges throughout New York State, this treatise provides everything
needed to handle commercial cases from initial assessment, through pleadings, discovery, motions, trial, and appeal. Great emphasis is placed on strategic considerations specific to commercial cases alongside comprehensive coverage of 38 areas of substantive law, including strategy, checklists, forms and jury charges.
Speakers include: Commercial Division Justices, Barbara R. Kapnick, Jeffrey K. Oing, and Shirley Werner Kornreich, former Commercial Division Justice Bernard J. Fried, and Appellate Division Justices Richard T. Andrias, Helen E. Freedman, and Karla Moskowitz. Leading litigators, Robert J. Anello; Garrard R. Beeney; Charles G. Berry; James E. Brandt; Frederick A. Brodie; Michael B. Carlinsky; J. Peter Coll, Jr.; William A. Escobar; Robert S. Fischler; Stephen Fishbein; Thomas J. Hall; Thomas J. Kavaler; Louis B. Kimmelman; T. Barry Kingham; Harvey Kurzweil; Deborah E. Lans; Jay P. Lefkowitz; David J. Lender; Andrew J. Levander; Heidi Levine; Mitchell A. Lowenthal; William R. Maguire; William G. McGuinness; Gary P. Naftalis; A. Robert Pietrzak;
Bradley I. Ruskin; Jeffrey Q. Smith; Mary Kay Vyskocil; Kevin J. Walsh; Michael R. Young; and Stephen P. Younger. In-house counsel for major corporations, John Hartje, chief litigation counsel, NCR Corporation; Todd Kahn, senior vice president, general counsel and secretary, Coach, Inc.; Michael W. Leahy, vice president, deputy general counsel and head of litigation, American International Group, Inc.; Michele Coleman Mayes, vice president, general counsel and secretary, The New York Public Library; Randal S. Milch, executive vice president and general counsel, Verizon Communications, Inc.; and Elizabeth D. Moore, general counsel, Consolidated Edison, Inc. NYCLA Members: attend this unique program for only $250 (treatise included—a $660.00 retail value) and receive 8 CLE credits (1 Ethics; 4 Skills; 3 Professional Practice). Space is limited—reserve your space—visit www.nycla.org or call (212) 267-6646
April 2013 / The New York County Lawyer
April 2013 / The New York County Lawyer
MESSAGE FROM BARBARA MOSES PRESIDENT OF THE NYCL A FOUNDATION Dear Friends:
You know that NYCLA offers CLE programs, hosts networking events and receptions, sponsors lectures and public fora, and provides innovative pro bono assistance to needy New Yorkers. You may not know that NYCLA also plays a vibrant role in identifying, analyzing and commenting on key public policy proposals affecting practitioners and the justice system. Through its specialized Committees and Sections, and with support from the Association’s leadership and staff, NYCLA members spearhead these efforts: identifying issues, writing reports, drafting communications, preparing testimony, and ultimately determining NYCLA’s point of view and assisting NYCLA to influence the New York community on everything from marriage equality to changes to the not-for-profit law. Here are some examples, all drawn from the first two months of 2013:
In early January, the Criminal Justice Section submitted comments to the New York State Permanent Sentencing Commission regarding its determinate sentencing proposal for non-violent, nonsex, non-drug felonies. While the Commission has made clear that it does not seek to increase sentences, the Section raises grave concerns, in its comments, that this will be the unintended
consequence of the wide sentencing ranges proposed.
At the end of February, NYCLA’s Taxation Committee—which proposes and reviews legislation on questions pertaining to federal, state and municipal taxation—filed an amicus brief in support of the petitioner in T.W. v. the United States of America. The decision on appeal held that a regulation requiring maintenance of private records of foreign bank accounts nullifies the Fifth Amendment act-of-production privilege. The committee, led by Counsel of Record and Committee Chair Megan Brackney of Kostelanetz & Fink, LLP, submitted its brief to the Supreme Court on February 11, 2013. Brackney sheds further light on the issues arising from the T.W. appeal in her article on this topic on page 3.
Meanwhile, a few weeks earlier, NYCLA’s Non-Profit Organizations Committee sent a letter to the New York State Attorney General’s Office commenting on the proposed Non-Profit Revitalization Act. The letter applauds the legislation in large part but critiques the proposed requirement that all notfor-profit corporations registered to solicit charitable contributions in the State, with revenues in excess of $500,000, file a report prepared by an independent certified public accountant. The Committee explains that this requirement places an undue burden on many small not-for-profit organizations, and recommends that the threshold requirement for an independent audit by a certified public accountant be increased to one million dollars.
Most recently, NYCLA released a report analyzing a number of proposed federal gun control measures and recommending passage of those that are likely to pass Constitutional muster and that, had they been in effect, could have prevented one or more of America’s recent mass shooting tragedies. The report, which was approved by the Board of the Association on March 11, also recommends that Congress provide incentives to the state to enact similar legislation. As you can see, NYCLA’s members,
through Committees and Sections play an active role in advancing the issues important to their practice areas, as well as those important to the community at large. Unfortunately, your dues do not cover all the costs of the programs and services like these that make us proud to be NYCLA members. We depend on your contributions to support the work that we do to benefit the membership, the profession, and the public. To help support these programs, you can simply go to www.nycla.org and choose “Giving to NYCLA.” You can also mail a check, payable to the “NYCLA Foundation,” to NYCLA Foundation, 14 Vesey Street, New York, NY 10007. We are grateful for every contribution.
NYCLA needs both your support and your ideas. Please do not hesitate to contact me with suggestions for fundraising or related topics. You can reach me at firstname.lastname@example.org. Sincerely,
Barbara Moses President of the NYCLA Foundation
Notice of Annual Meeting & Reception May 23, 2013 at 5:30 p.m. NYCLA Home of Law, 14 Vesey Street Annual Report of the President Treasurer’s Report Election of Officers and Directors
On February 4, 2013 the following were nominated as officers and directors by the Committee on Nominations: Officers: Barbara Moses, President Lewis F. Tesser, President-Elect Carol A. Sigmond, Vice President Stephen C. Lessard, Treasurer Donald M. Zolin, Secretary Directors–Class of 2016:
Jai Chandrasekhar Hon. Helen Freedman Hon. Emily Jane Goodman Andrew T. Hahn Ronald J. Katter
Jay G. Safer Diana S. Sen Edward M. Spiro Richard A. Williamson Jacqueline C. Wolff
Committee on Nominations–Class of 2016:
Stewart D. Aaron Scott M. Berman Michael J. McNamara
Hon. Joseph Kevin McKay Asha Smith
Members who are unable to attend the annual meeting will be able to vote in advance using a proxy that will be emailed to all members.
April 2013 / The New York County Lawyer
Remarks by Hon. Kristin Booth Glen at February 26th Reception Honoring Newly Elected, Appointed, Re-Elected and Re-Appointed Judges When I was first asked to speak I of course asked “about what?” and was told, about anything, the joy of judging, but definitely about 5 minutes. Well, it is a joy to be a judge, despite the many issues and challenges we, or I should say you, face, and in many ways it’s the best job in the world. It’s the best job, in my view, because of the incredible power judges have, not only in resolving the disputes of litigants before them, but in affecting, and even helping to change the world. The power comes not only from the cases you decide, but from the way you are, the behavior you model, the choices you make.
It comes from the ability to notice, in a very different way than others do, to pay attention, and to focus that attention, in a way very different from others in the system – just because you are the judge. What I want to ask you to notice, as you probably already do with gender bias, or racial bias, or bias based on people’s sexual orientation, all areas in which judges and our courts have consciously focused to eliminate discrimination, is one of the last and most invisible sources of bias, disability.
Forgive me if this I already familiar, but with the enactment of the Americans with Disabilities Act in 1990, there has been a sea change in the way disability is understood, now as socially constructed — that is, not as an unfortunate condition someone has that needs to be “cured,” but as a misfit between the existing, or built environment and the person with an impairment. So if there’s a mismatch, and we believe, as we are required to do when we take our oaths, in equal treatment and equality, then we are also required to provide “reasonable accommodations” to ameliorate the misfit and create an equal opportunity to participate in our system of justice.
Disability issues arise in the courts in a number of places and ways — in employment—you could think seriously about hiring a person with a disability, visible or otherwise, or promoting the hiring and advancement of people with a wide range of disabilities — blindness, deafness, mobility impairment, learning and intellectual disabilities, even, that scary word, mental illness (as an aside I have been working for the past three years on the ABA Disability Rights Commission with a
lawyer with Bipolar disorder, and although it has sometimes been challenging, he is absolutely brilliant and we have accomplished an amazing amount).
Recognizing and accommodating disabilities makes it possible for people to participate fully and equally, whether employees, or jurors, witnesses or litigants. It could be sign language interpreter or CART for a deaf litigant, or ensuring that a witness with a mobility impairment testifies at the same level as other witnesses so her or his testimony is not unconsciously devalued, or giving extra breaks during a trial to allow an elderly juror to stay focused and participate fully. It comes up in the language we use, in opinions, in the courtroom, in chambers. We need to use “people first” language, that is, language that recognizes a whole person, not someone defined by his or her disability. Thus a person with a mobility impairment, not a handicapped person, or a cripple, a person with a mental illness, not “schizophrenic.”
If you recognize disability as part of the human condition (and, as the survivor of a very nasty and temporarily dis-
abling cancer, I can personally assure you it is) and not an object of pity, people around you will too.
And if you have an invisible disability, I’d urge you to be open about it. You’ve managed to make it here, and your success can bring hope and encouragement to young lawyers or those younger still who might only be considering a career in the law, but worry about their ability to make the grade because of their disability and the stigma that attaches, and to educate all those around you. (I’m thinking of how the arrival of openly gay judges completely changed the atmosphere for LGBT people in the court system.) Recognizing, accepting and accommodating difference is ultimately what our commitment as judges — and as humans — is to equality. I urge you to include disability what you notice, and what you have the power to change. Thank you for your patience and your attention. Hon. Kristin Booth Glenn is the Surrogate-retired, Surrogate’s Court, County of New York.
April 2013 / The New York County Lawyer
Con Edison General Counsel Receives 11th Annual Ida B. Wells-Barnett Justice Award
Young Lawyers’ Section Hosts Guinness Beer Tasting On February 19 at an event hosted by Young Lawyers’ Section, NYCLA members learned the history and heritage of the Guinness brand while tasting various beers and learning pouring tricks.
On February 28, Elizabeth D. Moore (center), General Counsel of Consolidated Edison Company of New York, was honored with the 11th Annual Ida B. WellsBarnett Justice Award by the New York County Lawyers’ Association and the Metropolitan Black Bar Association. She is joined by Stewart D. Aaron (far left), NYCLA President and head of Arnold & Porter’s New York office; Hon. Pam Jackman-Brown (second from left), Judge, Civil Court of the City of New York and Chair of the Ida B. Wells-Barnett Awards Committee; Nadine Fontaine (second from right), President of the Metropolitan Black Bar Association; and Hon. Yvonne Lewis (far right), Justice, Supreme Court, Kings County and Honorary Board Member of the Metropolitan Black Bar Association.
NYCLA Honors Judges NYCLA’s Committee on the Supreme Court held a reception on February 26 honoring newly elected, appointed, re-elected, and re-appointed judges. Welcome remarks were given by Hon. A. Gail Prudenti, Chief Administrative Judge of the Courts of New York State and Special Remarks by Hon. Kristin Booth Glen, Surrogate-retired, Surrogate’s Court, County of New York.
Forum Discusses Issues Facing Afghan Women
Entertainment Law Forum Draws Large Crowd
Members from the entertainment industry came out to NYCLA’s March 4 public forum, “Agents, Managers & Entertainment Attorneys: What the Heck Do They Do?” which included a panel discussion featuring entertainment industry experts hosted by NYCLA’s Entertainment, Intellectual Property, & Sports Section. Attendees learned the differences between the roles of an agent, a manager, and entertainment attorney and gained insight into when an attorney might want to direct an entertainment client to speak with an agent or a manager instead of taking on a task he/she isn’t comfortable with or fit to do.
Manizha Naderi, Executive Director of Women for Afghan Women, spoke at a NYCLA public forum, “Women in Afghanistan: Today and Tomorrow,” on March 11 about the current status of women in Afghanistan and what the future holds. This program, hosted by NYCLA’s Justice Center and Foreign and International Law and Women’s Rights Committees, informed attendees about what is happening now to women in Afghanistan and what Women for Afghan Women is doing to combat violence against women and girls and provide educational resources, and provided insight into what problems Afghan women are facing here in the U.S..
April 2013 / The New York County Lawyer
UPCOMING EVENTS Events Calendar
All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.
April 2013 Edith I. Spivack Award Reception Thursday, April 4 – 6 p.m. Sponsored by NYCLA’s Women’s Rights Committee Dorchen A. Leidholdt, Director of the Center for Battered Women’s Legal Services at Sanctuary for Families, will be honored for her work in the area of women’s rights. The Spivack Award was named for the woman who was the driving force for the establishment of NYCLA’s Women’s Rights Committee in 1972, actively recruiting outstanding women attorneys and playing a significant role in identifying critical areas of discrimination against women. The award was established in 1997 to honor Ms. Spivack and mark the 25th anniversary of NYCLA’s Women’s Rights Committee.
50th Charles Evans Hughes Memorial Lecture Wednesday, April 10 - 6 p.m. Sponsored by Hughes Hubbard & Reed LLP James R. Silkenat, American Bar Association President-Elect (2012-13), and Attorney at Law with Sullivan & Worcester LLP, will lecture on “American Legal Education at a Crossroads: Training Lawyers and Judges for the Future” at this annual special event. Michael Cardozo, the Corporation Counsel of the City of New York, will give introductory remarks.
Conversations with In-House Counsel II Thursday, April 11- 6:45 p.m. New York Law School, 185 West Broadway Sponsored by NYCLA’s Young Lawyers’ Section NYCLA members, NYLS students, and NYLS alumni are invited to meet with a distinguished panel of in-house attorneys and hear about the peaks and valleys of working in-house. Panelists include: Kim BressantKibwe, Esq., The American Society for the Prevention of Cruelty to Animals (ASPCA), NYCLA Animals Rights Committee Chair; Stephen Broer, Esq., Guardian Life Insurance; Marilyn Flood, Esq., Counsel, New York County Lawyers’ Association; and Daniel K. Wiig, Esq., Municipal Credit Union (MCU);
NYCLA Young Lawyers’ Section Co-Chair; NYCLA Director. Moderator and Program Chair: Dorianne Van Dyke, Esq., Media Law Resource Center, Chair, Subcommittee on Networking and Social Events, NYCLA Young Lawyers’ Section.
In Chambers Tuesday, April 16 - 12:30-1:30 p.m. Sponsored by NYCLA’s Young Lawyers’ Section This “In Chambers” event will feature guest host Hon. Denny Chin, Associate Judge, U.S. Court of Appeals for the 2d Circuit.
Law and Literature Award Program Wednesday, May 1 – 6 p.m. Sponsored by the Law and Literature Committee Author Noah Feldman will be presented with an award for his book Scorpions followed by a reception and book signing.
2013 Law Day Luncheon Friday, May 10 - Reception - 11:30 a.m.; Lunch - 12:30 p.m. Cipriani Wall Street, 55 Wall Street Sponsored by NYCLA’s Supreme Court Committee
Join NYCLA for its annual Law Day Luncheon, where the Justice Louis J. Capozzoli Gavel Award will be presented to Hon. Robert S. Smith, Associate Judge of the New York Court of Appeals. The Capozzoli Gavel Award commemorates the life of Justice Louis J. Capozzoli, a lawyer and judge who was devoted to public service and embodied the highest ideals of the profession. NYCLA established this award in 1984, and it has been given out each year to distinguished attorneys and judges ever since. In Practice Wednesday, May 15 - 12:30-1:30 p.m. Sponsored by the Young Lawyers’ Section This “In Practice” program will feature Catherine Christen, Counsel to the Special Narcotics Prosecutor and Former NYCLA President.
2013 Annual Meeting: Induction and Reception Thursday, May 23, 2013 – 5:30 p.m. All NYCLA members are invited to attend the Association’s annual induction ceremony of NYCLA officers and members of the Board.
10 April 2013 / The New York County Lawyer
LIBRARY NOTES Law Firm Relocation I recently moved and found it to be an exhausting, grueling and frustrating experience. It got me to thinking about the moving of a Law Office and what our members, facing a move, should be reading to prepare for such an effort.
text for 200+ titles) to see if there were any articles on moving a law office.Using a keyword search for “Office Relocation” I found bibliographic information on several articles in Legal Management, though not the full text of the articles themselves.
My go-to book/electronic resource for law firm management these days is Best Practices in Legal Management: A Comprehensive Guide, Barry Jackson, RoseannLentin, et all. Albany:NYSBA. 2010. It provides a wide range of advice and includes a chapter on “Office Space and Security Needs” that specifically addresses relocation, provides a pre-move checklist, advice on the move itself, and what to do after the move. Another chaptercovers “Operations Management” and includes sections on Disaster Planning and Business Recovery, a Business Recovery Planning Checklist, and a PostDisaster Checklist.
New York residents who are admitted to practice law in New York are eligible to
Those of you with a New York State Bar Association-Attorney Borrower’s Card (NYSL-ABC) can access an electronic copy of this book at no charge through the NYSL-ABC Loislaw subscription. Click on “Bar Publications,” then “New York CLE Library”, and you will see the many digital titles from the NYSBA. Using another database made available at no charge through the NYSL-ABC, I went to Legaltrac, an index to 1600+legal periodicals (and having full-
receive a New York State LibraryAttorney Borrower’s Card. This card entitles the holder to special services from the New York State Library, including remote internet access to over 90 databases, four of which are legal databases. Contact NYCLA’s Director of Library Services, Dan Jordan, at email@example.com to get information and an application for the New York State
Library - Attorney Borrower’s Card, your tax dollars at work. Suggestions as to NYCLA Library Services are always welcome. Send your questions and comments to the Director of Library Services, Dan Jordan, at firstname.lastname@example.org or call 212-267-6646, x201.
Records and Briefs at the NYCLA Library Many litigators and appellate attorneys use Records and Briefs of prior court decisions as a standard part of their case preparation. If your case bears similarities to the case for which you are seeking Briefs, reading the arguments of the opposing appellate attorneys in the prior case can speed up, deepen, and sharpen your understanding of the issues presented to the court. The Record for the earlier case usually contains the pleadings from the prior litigation, the transcript from the trial, expert testimony, and copies of items entered into evidence. Many litigators read the whole Record or part of itto gain a granular understanding of the case that they, or opposing counsel, are relying on as authority in their present litigation.
The NYCLA Library has access to selected Briefs through Lexis and Westlaw and has the best collection in New York City for Records and Briefs from the four Appellate Divisions and the New York Court of Appeals. These Records and Briefs (sometimes called Cases and Points) are in print for early 20thand mid20thcentury decisions and in microfilm and microfiche for the last 30 plus years. NYCLA members may come to the Library and read records and briefs in print or, in a dedicated microfilm reader, at no charge. Members interested in copying pages from Records and Briefs can do so themselves for brief periods of time at $0.50 per page. Most NYCLA Library patrons have the NYCLA Staff copy and email PDFs of
Records and Briefs to them. While some Records and Briefs may be short, most tend to run hundreds or thousands of pages. When a Member is interested in seeing what is in the record, we usually send the Table of Contents for the Record. The patron is asked to return a copy of the table of contents, identifying what materials they are requesting. The NYCLA Library staff is able to deliver Records and Briefs to your desktop in an efficient manner at a price that is good value, though not always inexpensive.If you would like a copy of our “charge sheet” for our fee based services, just ask and I will send it to you. If you are considering using Records and Briefs as part of your research methodology, come in and take-alook.
Electronic Research Center CLE Programs
Unless otherwise noted, courses are free and open to the public. Register at nycla.org. Questions? Contact Irina Chopinova at email@example.com or 212-267-6646 x203.
April Lexis: I April 10 – 10:30 – 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: II April 10 – 12:00 – 1:00 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: Company & Financial Research April 10 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Westlaw: Advanced April 11 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Employment Law April 11 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for Litigation April 17 – 10 - 10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)
Using Bloomberglaw.com for a Corporate Transactional Practice April 17 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ) Westlaw: Basic April 23 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Entertainment Law April 23 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
U.S. Bankruptcy Court Electronic Case Filing System April 24 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Lexis: I May 7 – 10:30– 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: Cite Checking with Shepard’s May 7 – 12:00 – 1:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Labor & Employment & Worker’s Compensation Research May 7 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Introduction to Westlaw Next May 9– 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
To Advertise in New York County Lawyer, Call 631-427-7000
Westlaw: Securities Law Research on Westlaw Next May 9 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
U.S. Bankruptcy Court Electronic Case Filing System May 22 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35 Westlaw: Advanced Research on Westlaw Next May 29 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Insurance Law Research on Westlaw Next May 29 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
April 2013 / The New York County Lawyer 11
Taking Financial Responsibility: What’s Your Game Plan? By Thomas A. Martin, Agent, New York Life Insurance Company
The old adage, “People don’t plan to fail, they fail to plan,” can be especially true when it comes to finances – and this can be just as true of attorneys as anyone else. Being financially responsible doesn’t just happen – it must be a conscious decision you make to live not just for today but for your future self and possibly your future loved ones. Especially in today’s economy, the best time to start taking control of your finances is today.
It’s Never Too Late to Plan – for Today and Tomorrow You may find yourself wondering when (or if) you’ll ever fully realize the life you envisioned for yourself when you began your path in the law. But no matter what stage of life you’re in, whether just starting out or nearing retirement, with the help of a financial professional you can identify and adopt strategies that help meet your current financial needs while creating a path to help reach long-term financial goals. The good news is that it’s never too late to start, and a proactive approach now can help avoid disappointments later on. Ask yourself these questions:
• Are you saving enough? Increasing your savings today can have a major impact later on. What financial goals can you set today to help make your dreams a reality? • Are our loved ones adequately protected? Would your family or partner be able to maintain their standard of living in the event something happened to you? Buying a life insurance policy — or increasing your coverage — can ensure that your loved ones are protected. • What about college expenses? If you're a parent or guardian, it’s never too early to start saving for your children’s college expenses. Starting a college education fund now may allow them to attend the college of their choice without unduly burdensome student loans.
• Are you prepared for retirement? If not, how much more of your current income can you allocate to retirement savings vehicles, whether 401(k) plans, IRAs, cash value life insurance or other vehicles. With retirement possibly lasting 20 or 30 years, the more resources you have, the less likely any fear of outliving those resources will prevent you from enjoying those years.
Taking The First (or Next) Step: Can You Afford to Wait? Critical decisions such as buying a home, getting married or having children require deliberate, thoughtful consideration. Indeed, the outcome of any one of these decisions can irrevocably change your life for better or worse. But delaying the implementation of basic strategies can have a negative impact in several key ways, resulting in a costly mistake for you and your loved ones. To illustrate, let’s look at just one example: the purchase of cash value life insurance.
Whole Life Insurance: Financial Protection Plus Cash Value Accumulation With Tax1 Diversification In its simplest form, whole life insurance protects the people who depend on you for financial support – no matter what happens to you. Aside from providing generally tax-free money2 to your beneficiaries to replace your income, whole life insurance also offers guaranteed3 cash value accumulation on a taxdeferred basis4 as long as the policy remains in force. The bulk of that cash value can be accessed, generally taxfree,5 at any time and for any purpose, whether to fund an education, supplement our retirement income, or meet an emergency cash need (policy loans accrue interest at the current variable loan interest rate and reduce the total cash value and total death benefit by the amount of the outstanding loan and accrued loan interest). To Act or Not to Act: The Effects of Waiting Since a portion of the premiums paid accumulates cash value each year, cash value accumulation can be considerable over the long term, especially since taxes on the growth are deferred (so the sooner we start, the faster our cash value may accumulate, generally speaking). A whole life policy is also eligible to receive dividends, if and when declared by the insurance issuer (unlike cash values, dividends are not guaranteed, and past dividends are not indicative of future
dividends). Policyholders have several options for dividends usage, including dividend distributions in cash or additional life insurance coverage. This additional insurance coverage, in turn, has its own cash value and is eligible for additional dividends–for no additional premiums.
Time is simply not on your side when it comes to delaying the implementation of sound financial strategies, particularly in the case of life insurance: waiting can cost you the increased cash available to you in life as well as the benefit paid to your beneficiaries; premiums generally only rise as you age; and while you defer your decision, you might decide to start living your dream of deep sea diving, exhilarating and hazardous, or you may suffer an unexpected health condition, which may even place your insurability in jeopardy. In the worst-case scenario, if you were to die before taking action, the cost of waiting would be the death benefit your beneficiaries would not receive. Conclusion: Let Us Begin No matter where you are in life, a good financial professional may be able to help you to develop and implement a proper financial strategy to achieve your financial goals, maintain your current lifestyle and ease worries about the future. As a lawyer, you’re fortunate to have been trained to examine the issues and weigh the pros and cons of any major decision. Yet as human beings, you’re just as apt to use that process as
an excuse for what really may amount to procrastination. Given the importance of any financial decision, including a decision to purchase life insurance, you want to gather all the necessary information and choose the coverage that best suits your needs. But you do yourself no favor if you forget that postponing your decision can prove to be costly. You can realize tomorrow’s goals and dreams by taking action today. This educational third-party article is being provided as a courtesy by Thomas A. Martin, J.D. Mr. Martin enthusiastically joined the insurance and financial profession and New York Life after a successful, nearly 20 year career practicing commercial real estate law.*For additional information on the information or topics discussed, please contact THOMAS A. MARTIN at (914) 253-7125 or (917) 626-2024.*Mr. Martin does not provide legal advice in his current role.
References: 1 Neither New York Life Insurance Company, its agents, or its employees are in the business of providing tax, legal or accounting advice, and none is intended nor should be inferred from the comments and observations herein. Any tax-related discussion herein was prepared to assist in the promotion or marketing of the transactions or matters addressed in this material. It is not intended (and cannot be used by any taxpayer) for the purpose of avoiding any IRS penalties that may be imposed upon the taxpayer. 2 See IRC Section 101. 3 Guarantees backed by the claims-paying ability of the issuer. 4 SeeTreas. Reg. 1-446-1. 5 See IRC Section 72.
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12 April 2013 / The New York County Lawyer
Taxation Committee Files Amicus Curiae Brief (Continued from Page 3)
regulate and that the records thus assume public aspects by virtue of the requirement that they be maintained. The NYCLA Taxation Committee argued that if the Supreme Court were to separately analyze each prong of the Grosso test, it would be required to conclude that the required records doctrine does not apply to the grand jury subpoenas for foreign account records.
First, an inquiry under the BSA is not “essentially regulatory,” but seeks to advance the Government’s “criminal, tax, or regulatory investigations or proceedings.” 31 U.S.C. § 5311. In this context, “essentially regulatory” applies to a “valid civil regulatory regime” that serves nonprosecutorial ends. Rajah v. Mukasey, 544 F.3d 427, 442 (2d Cir.2008). There is no civil regulatory purpose for the BSA regulations; rather, their aim, as expressed in the BSA itself and its legislative history, is law enforcement. Second, the records are not of a type that the regulated party would ordinarily maintain. Foreign banks, especially in the “secrecy” jurisdictions that the BSA targets, are notorious for failing to provide customers with records; as a
practical matter, individuals regulated by 31 C.F.R. § 1010.420 are unlikely to possess, much less maintain, the records required by the BSA regulation. Third, foreign bank account records do not have “public aspects,” such as is contemplated in Grosso and Shapiro, where the petitioners were engaged in commerce with the public, and were able to do so solely because of licenses requiring them to maintain certain records, which then assumed the character of public records. There is nothing public about the unlicensed activity of owning a private foreign bank account. Rather, the relationship between the government and a taxpayer with a foreign bank account is no different than that of a taxpayer with a domestic bank account, and the Seventh Circuit has twice held that the act of production privilege protects domestic financial records, even though they are required to be maintained by statute. See Smith v. Richert, 35 F.3d 300 (7th Cir. 1994) and United States v. Porter, 711 F.2d 1397 (7th Cir. 1983). In holding that a wagering statute’s record-keeping provisions did not cloak the records with “public aspects,” the Supreme Court previously stated: The Government’s anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege.
Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Marchetti v. United States, 390 U.S. 39, 57 (1968).
The NYCLA Taxation Committee argued that in the cases compelling production of foreign bank account records, the government’s desire to obtain information regarding United States taxpayers’ foreign bank accounts cannot overcome these taxpayers’ Fifth Amendment rights. This is especially true, where, as in the case of the grand jury subpoenas for foreign bank account records, there is no Act of Congress, but merely a regulation requiring the records to be maintained. The NYCLA Taxation Committee thus emphasized that the courts should be careful and rigorous in applying the Grosso test to ensure that the constitutional Fifth Amendment act of production privilege cannot be eliminated by regulation. Because the government has issued hundreds of these subpoenas with no end in sight, the NYCLA Taxation Committee is hopeful that the Supreme Court will step in and protect the bedrock Fifth Amendment privilege against selfincrimination before it is entirely eroded by the lower courts. Megan L. Brackney, Esq. is the Chair of NYCLA’s Taxation Committee and a partner at Kostelanetz & Fink, LLP in New York.
References: 1 Although exact statistics are not available, at this time last year, it was estimated that more than 150 grand jury subpoenas had been issued. See M. Sapirie, International Tax Enforcement 3.0, 134 Tax Notes 1359 (Mar. 12, 2012).
The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. April 1-15 Malvina Nathanson 212-608-6771 April 16-30 Mark Bower 212-240-0700 May 1-15 Don Savatta 212-983-6000
May 16-31 Richard Maltz 212-705-4804
Please Note: Assignments are subject to change.
Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New York County Lawyer.
NYCLA Comments on and Supports Issues
NYCLA frequently reports, comments on, and supports issues affecting the New York City legal community and has recently commented on or supported the following issues:
• Supreme Court Committee Submits Comments to OCA on 22 NYCRR 202.12 and 22 NYCRR 202.70, which would require parties to confer with respect to potential electronic discovery matters prior to the preliminary conference, and expand the Commercial Division Rule’s list of e-discovery issues for the parties to address.
• Matrimonial Law Section Submits
Comments to OCA Regarding Access to Forensic Evaluation Reports in Child Custody Matters
• Civil Court Practice Section and Supreme Court Committee Submit Joint Comments to OCA opposing 22 NYCRR Section 202.5-c, which related to proof of service by mail through attorney’s affirmation
• Taxation Committee Files Amicus Brief in Support of Petitioner in T. W. v. the United States of America
Learn more on the News & Publications section of nycla.org.
April 2013 / The New York County Lawyer 13
Marijuana Reform in the New York Context By Clara Flebus, Esq. In recent years, a shift has occurred nationwide in political attitudes toward recreational and medical marijuana use. In November 2012, Washington and Colorado residents voted to legalize small amounts of recreational marijuana. Similar reform bills have been proposed this year in other states. Meanwhile, medical marijuana is already legal in 18 states and the District of Columbia. This group not only includes Washington and Colorado, but also the neighboring states of New Jersey, Connecticut, Rhode Island and Massachusetts. The reform wave has reached Congress, where measures were recently introduced to de-federalize the marijuana policy by treating marijuana like alcohol and letting states decide whether to keep it illegal, and create a taxation framework for marijuana production and sale in states that allow it. When a Gallup Poll first asked about legalizing marijuana, in 1969, 12 percent of Americans favored it, while 84 percent were opposed. As of October 2011, some 50 percent of Americans, according to Gallup, thought that the use of marijuana should be made legal.
This year, New York State legislators have introduced several bills that may have a chance of becoming law soon, or will, at a minimum, advance the issue of marijuana reform in line with the national trend. Considerable attention and debate surrounds those proposals designed to decriminalize the possession of small quantities of cannabis for private use. New York’s current marijuana laws date back to the Marijuana Reform Act of 1977 (the Act). Under the Act, possession of less than 25 grams of marijuana was reduced from a misdemeanor to a non-fingerprintable violation, punishable only by a fine, except where the suspect was found in possession of the marijuana in a public place, and the substance was open to public view. The intent of the Act was to avoid stigmatizing people possessing small amounts of marijuana for personal use, and wasting law enforcement resources that could be directed to prosecuting serious crimes. More specifically, in New York private possession of marijuana below 25 grams is a violation punishable under Penal Law section 221.05 - Unlawful Possession of Marijuana, with penalties that range from a $100 to $250 fine, and/or up to 15 days in jail depending upon whether it is a first, second, or third offense. However, if the suspect is found in possession of a similar quantity in a public place, and the marijuana is “burning” or “open to public view,” the offense is a Class B misdemeanor, pursuant to Penal Law section 221.10(1) - Criminal Possession of Marijuana in the 5th Degree, resulting in arrest and criminal charges. The penal statute defines a public place as “a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and common areas of apartments houses or hotels.” (N.Y. Penal Law § 240.00).
People arrested for a misdemeanor marijuana offense face long-term negative consequences. Their future employment prospects may be jeopardized, as well as their immigration status, driver’s license, and eligibility for federal school grants or loans. In 2008, the New York Civil Liberties Union (NYCLU) published a report entitled
“Marijuana Arrest Crusade,” which analyzed the NYPD’s arrest practices during the prior three decades, and highlighted a problem with the implementation of the penal law. The report found that from 1997 to 2006, more than 353,000 people were arrested for possessing small amounts of marijuana. That figure was eleven times greater than the previous decade, and prompted NYCLU advocates to designate New York City as the world’s “marijuana arrest capital.” In addition, the study revealed that the arrests were racially skewed, as 52 percent of the suspects were African Americans, 31 percent Hispanics, and only 15 percent Caucasian. It also indicated that most people arrested were younger than 26 years old, and about 91 percent of them were men. Recent statistics from the Division of the Criminal Justice Services show that in 2011, the number of people arrested for low-level marijuana offenses was over 50,000. It has been calculated that between 2002 and 2011, the NYPD made 400,000 marijuana possession arrests. Nearly every person arrested was handcuffed, placed in the back of a police car or van, and taken to the local police station where they were photographed, fingerprinted, and often held overnight in a city jail.
Numerous research studies and accounts in the media maintain that many of the arrests for possession of small quantities of marijuana were the result of “stop and frisk” encounters. Suspects with a small amount of marijuana in their pocket or bag were stopped by a police officer and asked to empty their pockets and bags. After disclosing the marijuana to public view at the direction of the police officer, the suspect was charged with a misdemeanor pursuant to section 221.10(1), and arrested. Significantly, had the substance remained hidden, the suspect would have been subject only to a fine, pursuant to section 221.05. Law enforcement’s “stop and frisk” practice is deemed to have caused the increase of arrests for marijuana possession over time.
Indeed, the practice was addressed by Police Commissioner Raymond Kelly, who issued an order in September 2011, directing officers not to arrest and charge individuals with a violation of section 221.10(1) if the marijuana recovered was disclosed in public sight at an officer’s direction. Kelly emphasized that when an individual is requested to engage in a behavior resulting in the public display of marijuana, that behavior constitutes only a violation of section 221.05, and does not support criminal charges associated with section 221.10(1). After the issuance of the order, low-level marijuana arrests decreased slightly. However, in 2012, possession of small quantities of marijuana remained the number-one cause of arrests in New York City. In this context, proposals have been made to change New York marijuana laws as a more efficient solution to the problem of “stop and frisk” arrests. The underlying rationale of the proposed reforms is that the number of improper arrests for possession of marijuana in plain view will decrease if penalties for marijuana possession are standardized by reducing public possession from a misdemeanor to a violation punishable by a fine. Last year, Governor Andrew Cuomo called for the decriminalization of public possession of small amounts of marijuana, emphasizing that public smoking should still be punishable as a misdemeanor. However, a proposed bill failed to receive sufficient support in the state legislature by the end of the
(See Marijuana Reform on Page 15)
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Gun Control (Continued from Page 1)
or online sales of ammunition by federally licensed firearms dealers.4
The Report notes that the definition of “dealer” is one selling guns as a “regular course of trade with the principal objective of livelihood and profit.”5 This definition generally excludes gun show sellers, pawn shop owners, and “occasional” sellers of guns. They, therefore, do not need to comply with federal gun control laws relating to licensing, safety, and background check requirements. In reviewing the proposed legislation, the Report starts with the 2013 Assault Weapons Ban.
Assault Weapons Ban Senator Dianne Feinstein and President Obama have independently proposed to reinstitute the 1994-2004 semiautomatic assault weapons and high-capacity magazine ban. Senator Feinstein’s bill would ban the importation, manufacture, sale, transfer or possession of “semiautomatic assault weapons,” a term defined in the statute to include semiautomatic rifles, pistols and shotguns (1) that have a fixed magazine containing more than 10 rounds or (2) that have the capacity to accept a detachable magazine and have any one of a series of characteristics commonly referred to as “military features.” The bill would also outlaw the importation, manufacture, sale, transfer or possession of “large capacity ammunition feeding devices”6 after the date of enactment.
According to the Report’s analysis of the available data, both the Newtown, Connecticut and Aurora, Colorado shootings, which resulted in 100 fatalities and injuries, involved the use of weapons that would be banned under the Assault Weapons Ban of 2013.
Ammunition The Report summarizes the proposed legislation relating to ammunition as follows. The “Stop Online Ammunition Sales Act of 2013” introduced by Senator Lautenberg would add restrictions on mail/Internet sales of ammunition by federally licensed dealers so that these sales are regulated in the same way as mail/Internet sales of guns, and the “Ammunition Background Check Act of 2013” introduced by Senator Blumenthal, would institute background checks for sales of ammunition by federally licensed dealers so that these sales are treated the same way as sales of firearms. The Report notes that neither proposal prevents a convicted felon or other prohibited class from purchasing ammunition in a private sale from a non-licensed dealer.
Gun Shows – Background Checks Senator Lautenberg also proposed the “Gun Show Background Check Act of 2013,”7 which would require that all firearm sales at gun shows take place through a licensed importer, manufacturer or dealer. In turn, they would be required to conduct a NICS background check.
In the Columbine shooting, Eric Harris and Dylan Klebold purchased two of the weapons used from an unlicensed seller at a Colorado gun show through a straw purchaser. Following the shootings, the purchaser testified that she would not have purchased the weapons had she been required to undergo a background check.8 The Report notes also that from 1994 to 2009, background checks prevented 1.9 million attempted firearm purchases, primarily preventing sales to felons and fugitives.9
Straw Purchases President Obama has also called for legislation imposing penalties to prevent “straw purchases” of firearms. In the Senate, the “Stop Illegal Trafficking in Firearms Act of 2013” introduced by Senator Leahy would make it a crime for anyone other than a federally licensed importer, manufacturer or dealer to purchase a firearm on behalf of, or with the intent to transfer it to, any other person.
The “Gun Trafficking Prevention Act of 2013,” introduced by Senator Gillibrand and co-sponsored by Senator Kirk, would make it a crime to transfer or receive two or more firearms if the transferor or recipient, respectively, knows or has reasonable cause to believe that the use or possession of the firearm by the transferee would result in a felony.
In the House of Representatives, the “Gun Trafficking Prevention Act of 2013,” introduced by Representative Maloney and cosponsored by Representatives Scott Rigell and Pat Meehan, tracks the language of its counterpart in the Senate, except that the House version is triggered by the transfer of just one firearm, rather than two. Gun Manufacturer/Seller Immunity The Report notes that under the Federal Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005, firearms manufacturers and sellers are immune from civil lawsuits arising from the unlawful misuse of firearms distributed in interstate commerce. Legislation has been introduced by Representative Schiff that would end this immunity.10
Constitutionality The Report addresses the constitutional issues for each of the proposed measures. It notes that, prior to Heller, the Supreme Court ruled that the Second Amendment supports a collective right to possess and carry arms in connection with military service, but does not confer any justiciable individual right. Heller established that the Second Amendment protects an individual right to keep a firearm in one’s home for purposes of self-defense. Two years later, in McDonald v. Chicago, the Court extended its ruling to the individual states. Since Heller, over 80 cases have been brought challenging the constitutionality of various prohibitions on gun ownership, and nearly all have failed.11 This is because, according to the Report, in Heller, the Supreme Court recognized that an individual’s Second Amendment right to possess firearms is not unlimited. For example, the Court ruled that ownership and possession can reasonably be regulated where the firearm is “dangerous and unusual.” The Report suggests, therefore, that if semiautomatic weapons are viewed as “dangerous and unusual,” an argument could be made that they could be subject to increased regulation under Heller.
In People v. James, an appellate court in California held in 2009 that California’s assault weapons ban did not violate the Second Amendment because, under the Supreme Court’s reasoning in Heller, the Second Amendment only guarantees a right to possess the type of weapon typically possessed by law-abiding citizens for lawful purposes. The court concluded that the assault weapons outlawed by California’s law were of such an “unusual and dangerous” nature that they were “not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or selfdefense; rather, these are weapons of war.”
Likewise, the Report notes, in 2011, the Washington, D.C. laws replacing those overturned by the Supreme Court in
Heller, including an assault weapons and high-capacity magazine ban, were challenged before the D.C. Circuit Court of Appeals (“Heller II”). The D.C. Circuit upheld the assault weapons ban, finding that it was “difficult to draw meaningful distinctions” between semiautomatic weapons and the types of automatic weapons – namely the M-16 – that the Supreme Court has held are subject to reasonable regulation as “dangerous and unusual.” The court also found that high-capacity magazines posed such a danger to innocent civilians and law enforcement officers that banning such magazines was likely to promote important governmental interests. The Report notes that whether the Supreme Court would uphold a similar assault weapons and high-capacity magazine ban at the federal level remains to be seen. But, the Report suggests that the James and Heller II decisions could provide arguments for why, based on the speed, volume and the characteristics of these weapons, they could be regulated as “unusual and dangerous” weapons for purposes of the Second Amendment. The Report anticipates that the challenge would be that assault weapons used in the mass shootings may, in fact, be used for self-defense and/or sport. The Report notes that this is where better data collection by the government would be useful. If the number of deaths caused by assault weapons used by criminals and mass shooters or as a result of “mistakes” in the home is significantly greater than the number of times they have been used in successful self-defense situations, it would be easier to determine whether such weapons are “unusual or dangerous.” The Report concludes that there do not appear to be any significant constitutional issues raised by the proposed legislation relating to high-capacity magazines, because federal laws are already in place that parallel these measures with respect to firearms (background checks, classes of prohibited purchasers, etc., directed at the activities of federally licensed dealers).
As to the background check legislation, the Report reiterates that the Supreme Court held in Heller that regulations limiting access to firearms and ammunition for certain types of individuals are permitted under the Second Amendment. Also, the Report notes that given the fact that gun sales fall squarely in the stream of interstate commerce, regulation of those sales by Congress falls within its powers under the Commerce Clause. To find that a similar requirement for gun shows is unconstitutional, a litigant would have to establish that gun shows exist outside the traditional channels of commerce which, the Report states, would appear difficult to do.
Even if background checks are made nearly universal, however, the Report notes that the regime is only as strong as the information in the NICS database. Had Virginia submitted records, the Virginia Tech shooter may have been prevented from purchasing the two semiautomatic handguns he used to shoot his classmates due to a state judge’s earlier finding that he “presented an imminent danger to himself as a result of mental illness.”12 The Report also points out that Congress may be unable to force states to comply with data-sharing mandates.13 A report by the Government Accountability Office, while noting that states find the “incentives” to comply offered by the Federal Government (under the NICS Improvement Amendment Act of 2007) to be helpful, also states that the federal government has to do a better job of assisting the States with the technological issues entailed in providing NICS with mental health information that does not involve a court-ordered commitment.
Finally, the Report notes that the two bipartisan proposals designed to punish and deter straw purchases likely would not infringe upon Second Amendment rights. In particular, the “Gun Trafficking Prevention Act of 2013” regulates transfers of firearms that are known or reasonably believed to evade restrictions on who may possess a firearm – restrictions that the Supreme Court recognized as legitimate and reasonable under the Second Amendment in Heller. Outlawing these straw purchases does not impede the possession of firearms by law-abiding, responsible citizens. The Report did not identify Commerce Clause issues, because straw purchases and subsequent transfers associated with the purchases undoubtedly occur in the stream of interstate commerce. The Report notes there may be issues criminalizing the transfer itself where the recipient is not in a prohibited class, as could be the case in Senator Leahy’s bill.. Additional Proposals
Incentivizing States The Report notes that a number of other measures have been put in place at the state level. The Report suggests that incentivizing states to meet minimum standards for gun ownership could result in a series of “best practices” that reduce gun violence. The Report points out that although in 2012 the Supreme Court struck down the Medicaid expansion provisions of the Affordable Care Act (ACA) as unconstitutional under the Spending Clause, that ruling may not preclude Congress from using its spending power to encourage states to enact certain gun policies, should the inducement be reasonable and not be so dramatic as to defund the state’s entire law enforcement mechanism.
The Report, therefore, supports incentivizing states to adopt regulations already in effect in other states, including:
• Licensing and registration of weapons; • Limiting purchases to one gun per month; • Requiring the reporting of lost or stolen firearms; • Requiring mental health caregivers to report certain defined conduct to the authorities; • Imposing waiting periods; and • Requiring insurance in order to obtain a license/permit.
Improving Gun Safety Technology The Report concludes with additional suggestions for Congress to explore. For example, President Obama’s plan for reducing gun violence included a directive to the Attorney General to “review existing and emerging gun safety technologies” and issue a report on his findings as well as a challenge to the gun industry to “develop innovative and cost-effective gun safety technology and provide prizes for those technologies that are proven to be reliable and effective.”14 The Report suggests that the federal government consider requiring federally licensed gun manufacturers to include certain safety features on their products, as automobile manufacturers are required to meet fuel efficiency standards by the Environmental Protection Agency. To do this, the Report suggests that Congress end the exemption for firearms and ammunition in the Consumer Product Safety Act so that these products can be regulated by the CPSC like thousands of other consumer products. The Report notes that there is no pending legislation that suggests expanding the types of prior misdemeanors that warrant precluding a prospective gun owner from purchasing a gun. Nor did the Board find data to (See Gun Control on Page 15)
April 2013 / The New York County Lawyer 15
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Gun Control ( Continued from Page 14)
support the proposition that a significant number of mass shooters had previously been convicted of a violent or gun-related misdemeanor. But since the available data is incomplete, the Report suggests that, should the CDC be re-funded to study gun violence and/or should the restrictions on ATF’s ability to collect and disseminate data be lifted, further inquiry into shooters’ prior misdemeanor convictions is warranted to determine whether Congress should consider an expansion of prohibited owners. Jacqueline C. Wolff, Esq., a partner and Co-Chair of the Corporate Investigations and White Collar Defense Group at Manatt, Phelps & Phillips, LLP, is a member of the Board of Directors of the New York County Lawyers’ Association.
References: 1 A “mass shooting” is defined by the FBI as involving four or more victims, excluding the shooter, with no “cooling off period” between victims.” The Report used this definition but excluded killings of multiple family members by another family member and committed in the home as well as gang or drug related shootings. 2 These shootings resulted in 642 victims; over half of which were fatalities. At least eight-seven percent (87%) of these mass shootings involved semiautomatic weapons or assault weapons and at least fifty-one percent (51%) involved extended or high capacity magazines. In at least seventy percent (70%) of the mass shootings the weapons had been purchased legally, approximately half of those purchases from licensed dealers which should have entailed background checks. Of the remaining shooters most would not have passed effective background checks, had they been required. For more information as to how the Report arrived at these numbers, please see Report. 3 554 US 570 (2008) 4 18 USC §§ 922(b), (d). 5 Regulations governing the operation of the NICS are issued by the Department of Alcohol, Tobacco and Firearms (“ATF”), and contemplate that most records in the index will come from federal agencies, with some limited number being provided by state and local law enforcement agencies on a voluntary basis. Since 2007, the federal government has sought to incentivize states to provide thorough and complete records to the NICS by tying “Justice Assistance Grant” funding to states’ compliance with record completeness goals and authorizing new grant programs to reward improved provision of information to the NICS. 28 CFR § 25.4. The Supreme Court struck down an attempt by the federal government to compel state law enforcement personnel to assist the background checks in Printz v. United States, 521 U.S. 898 (1997). 6 18 USC § 922(t). 7 18 USC § 922(z). 8 See e.g., http://smartgunlaws.org/ammunition-regulation-policy-summary/; Laurie Ure, “Democrats propose limits on online ammo sales,” CNN.com (Jul. 30, 2012) available at http://www.cnn.com/2012/07/30/politics/democrats-
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ammo-sales. 9 18 U.S.C. § 921(a)(21)(D) 10 Assault Weapons Ban of 2013, S. 150, 113th Cong. (2013). 11 “Large capacity ammunition feeding device” is defined in the bill to mean “a magazine, belt drum, feed strip, or similar device, including any such device joined or coupled with another in any matter, that has an overall capacity of, or that can be readily restored, changed or converted to accept, more than 10 rounds of ammunition,” excluding “an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition.” Assault Weapons Ban of 2013, S. 150, 113th Cong. (2013) § 2. 12 Stop Online Ammunition Sales Act of 2013, S. 35, 113th Cong. (2013) 13 Ammunition Background Check Act of 2013, S. 174, 113th Cong. (2013). 14 Gun Show Background Check Act of 2013, S.22, 113th Cong. (2013). 15 “Columbine gun-buyer unaware of motives,” United Press International, (Jan. 27, 2000). 16 See Department of Justice Bureau of Justice Statistics, “Background Checks for Firearm Transfers, 2009 - Statistical Tables,” (Oct. 20, 2010) at Table 1. 17 Stop Illegal Trafficking in Firearms Act of 2013, S. 54, 113th Cong. (2013). 18 Gun Trafficking Prevention Act of 2013, S. 179, 113th Cong. (2013). 19 Gun Trafficking Prevention Act of 2013, H.R. 452, 113th Cong. (2013). 20 15 U.S.C. §§ 7901-7903. 21 PLCAA was recently successfully challenged in Williams v. Beemiller, Inc.,22 wherein the N.Y. Appellate Division, 4th Department, ruled the law cannot immunize a manufacturer supplying a gun trafficking ring with 181 Saturday Night Specials. 23 See, e.g., United States v. Cruikshank, 92 U.S. 542 (1876); United States v. Miller, 307 U.S. 174 (1939). 24 District of Columbia v. Heller, 554 U.S. 570 (2008). 25 McDonald v. Chicago, 561 U.S. 3025 (2010). 26 See, e.g., United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) (rejecting argument that ban on juveniles possessing handguns violates Second Amendment); Kachalsky v. County of Westchester, 708 F.3d 81 (2d Cir. 2012) (upholding prohibition on concealed carry); United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) (prohibition on straw purchases); United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) (prohibition on possession by felons); United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) (prohibition on possession by individual with domestic violence misdemeanors); United States v. Henry, 688 F.3d 637 (9th Cir. 2012) (prohibition on machine guns). 27 Heller, 554 U.S. at 627. 28 People v. James, 174 Cal. App. 4th 622, 674-77 (Cal. App. 3rd Dist. 2009). 29 Id. at 676. 30 Heller v. District of Columbia, 680 F.3d 1244,1262-64 (D.C. Cir. 2011). 31 Id. at 1263. 32 Id. at 1263-64. 33 27 CFR § 478.11 (including in definition of “mental defective” individuals determined by a court to be a danger to themselves or others). Michael Luo, “U.S. Rules Made Killer Ineligible to Purchase Gun,” New York Times (Apr. 21, 2007) at A1. 34 Printz v. United States, 521 U.S. 898 (1997). 35 Nat’l Fed. of Independent Business v. Sebelius, 132 S.Ct. 2566, 2607 (2011). 36 Presidential Memorandum of Jan. 16, 2013 at p. 10.
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Marijuana Reform ( Continued from Page 13)
year. Cuomo reaffirmed his commitment to decriminalization in his 2013 State of the State address. He stated that arrests for possession of marijuana in open view account for 15 percent of all arrests in New York City, with 82 percent of those arrested being African American and Hispanic, and 69 percent being under age 30. According to Cuomo, a reform is needed because these arrests stigmatize young people with a criminal record for the rest of their lives, which makes it harder to get into school or find a job. In January 2013, a bill (S3105) was introduced in the Senate that eliminates the “open to public view” offense, while maintaining that portion of section 221.10(1)
Immigration Reform ( Continued from Page 1)
In other words, a select group of southwestern appointees will determine, for the rest of the country, if and when new border security measures are effective. Until such a determination is made (and there is no built-in time frame for doing so),these “probationary immigrants” will be held hostage and not be permitted to apply for lawful permanent residence.
To add yet one more impediment, these same “probationary immigrants” would be sent to the “back of the line” for a green card and, after that, U.S. citizenship. While the proposal acknowledges that current backlogs for immigrants applying for family and employment-based visas can cause delays upwards of twenty years or more, neither the need to reduce these existing backlogs nor a plan to do so are addressed in the proposal. Separate (and somewhat less arduous) pathways to citizenship would be created for unauthorized immigrants who came to this country as children (the “DREAM”ers) and for unauthorized agricultural workers. What constitutes the “back of the line” is not dealt with meaningfully at all.
that classifies smoking marijuana in public as a misdemeanor. Another bill (S3315) proposes that public possession of small amounts of marijuana be a violation punishable by a fine whether the substance is in plain view or “burning.” Both bills are geared toward preventing improper enforcement and overcharging under the penal law, in line with the decriminalization scheme for possession of small quantities of marijuana for personal use created by the reform of 1977. Clara Flebus, Esq., a NYCLA member, is an Appellate Court Attorney in New York State Supreme Court, and holds an LL.M. degree in International Business Regulation, Litigation and Arbitration. She is a member of NYCLA’s Appellate Courts, Arbitration and ADR, and Foreign & International Law Committees, and Young Lawyers’ Section.
Thus, “the fullness of time” has been achieved.
This is the equivalent of a defendant in a criminal action being found guilty and ordered to jail with his/her period of incarceration to be completed “when crime was eliminated.” I doubt that any criminal defense attorney would accept such a sentence, or that such a sentence would be lawful.
Unless and until this first part of the plan contains firm and defined deadlines for its implementation, the Senators’ proposal is just one more example of Sir Humphrey’s response to wait for “the fullness of time.” The sad part is that the character of Sir Humphrey was meant to be mocked and laughed at, while these Senators appear to be serious in their proposal. One can only hope that a more reasoned approach will be found which can be adopted quickly, rather than “in the fullness of time.”
Eugene Glicksman, Esq., Co-Chair of NYCLA’s Immigration and Nationality Committee, is a partner at Glicksman & Cardoso practicing immigration and nationality law.
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16 April 2013 / The New York County Lawyer