Conditional Spending: Enabling States to Prevent Mass Shootings

By Zachary Segal, J.D Candidate, Junior Editor, Touro Law Review

In the wake of the Marjory Stoneham Douglas High School massacre in Parkland, Florida, students[1], State governments,[2] retailers,[3] and even the President[4], are calling on Congress to enact stricter firearm regulation, increased mental health screening, and added security for schools. These calls are a bi-product of the growing frustration that mass shootings, caused by gun violence and unregulated access to firearms by mentally ill individuals, is sweeping the nation by storm.[5] Congress, however, has rebuked these calls arguing the matter should be dealt with locally[6] while others argue mental health, not guns, cause mass shootings.[7]

Considering Congressional efforts, following mass shootings, have been futile and there is disagreement as to the cause—maybe it is time for Congress to pass the torch to the States pursuant to its Article I power to “Lay and collect Taxes … for the common defense and general Welfare of the United States.”[8] This power includes the ability to incentivize States with funds conditioned on their enacting desired laws, regulations, or guidelines; this practice is called conditional spending.[9] Thus, one solution to the national mass-shooting crisis is to entice States with renewed funds for mental health funds conditioned on States passing, for example, “red flag” laws.[10] Last May, Rep. Carbajal (CA) introduced H.R. 2598, which conditions funds for red flag laws on State’s enacting them.[11]

Red flag laws, also known as extreme risk laws, allow a judge to confiscate firearms belonging to an individual who, upon a finding of probable cause, poses an extreme risk to himself or others.[12] In Connecticut, for example, a report is issued to the police regarding an individual who is deemed to pose an imminent risk to himself or others.[13] The police, then, conduct an independent investigation and if there is probable cause, two officers must swear the individual poses an imminent risk.[14] The affidavit is submitted to the local State Attorney who decides whether to request a warrant.[15] If the State Attorney so decides, the warrant request is presented to a Superior Court Judge who determines whether there is in fact probable cause to seize the firearms.[16] If the Judge finds probable cause, the warrant is issued and the police may search for, and seize any firearms or ammunition located at the individual’s residence.[17] Finally, following a fourteen day cooling off period, the State must prove by clear and convincing evidence the individual whose guns were seized presents a continued imminent risk to himself or others.[18] If the State carries its burden, the individual loses the firearms for a year and cannot purchase new ones.[19]

Presently, five states have red flag laws, nineteen had legislation pending prior to Parkland, and five have introduced legislation following the mass shooting in Parkland, Florida.[20] This proposal, like H.R. 2598, in effect, removes the federal government from the equation by placing the impetus on the States to accept, or reject, the funds thereby making States politically accountable to their constituents. Given the recent cuts in FY 2018’s budget for mental health,[21] Congress need not incentivize the States with funding by restricting current funds. Rather, H.R. 2598, or a new bill, should renew mental health funds through the prescribed method detailed below.

The 1987 Supreme Court case, South Dakota v. Dole,[22] articulated four limitations Congress must satisfy before States can accept the conditional funds: (1) the spending must be for the general welfare; (2) the condition must be clear and unambiguous; (3) condition has to be reasonably related to the purpose of the expenditure; and (4) the condition is not barred another constitutional provision.[23] In Dole, the Court held States were eligible to accept extra highway funding because Congress’s condition of raising the drinking age to receive the funds were reasonably related to reducing drunk driving accidents.[24] The harbinger, however, to this conditional spending initiative involved whether it violated the Twenty-first Amendment.[25]

In Dole, the Court held because Congress was conditioning funds to address a dangerous situation—highway accidents caused by differing state drinking ages—it was spending for the general welfare.[26] The Court noted, moreover, it generally defers to Congress regarding its explanation behind why the conditioned funds are for the general welfare.[27]  Here, Congress would be conditioning funds to address a similar dangerous situation—mass shootings caused by easy access to firearms by the mentally ill.[28] The second limitation of Dole, likely will not pose a problem to Congress so long as the Congressional act “clearly and unambiguously” informs States it will receive funds for mental health and school safety conditioned on their enacting red flag laws.[29] The third limitation, too likely will be satisfied because the conditions on federal funds are related to a national concern i.e. ending mass shootings.[30]

The fourth limitation, however, presents the looming question as to whether the suggested conditional spending plan violates another Constitutional provision—the Second Amendment. In Dole, the Court rejected petitioner’s argument that the Twenty-first amendment barred Congress from spending and regulating an activity already prohibited, alcohol.[31] The Court held “the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly.”[32] As a corollary, the Court explained the Tenth Amendment was not being violated because Congress was not offering funds “to induce the States to engage in activities that would themselves be unconstitutional.” In other words, unduly coercive incentives are unconstitutional.

While satisfying this prong may appear troublesome, it is not thanks to District of Columbia v. Heller.[37] Heller declared unconstitutional a D.C. statute prohibiting handgun possession in the home for self-defense.[38]Although Heller declared the Second Amendment creates an individual right to bear arms for self-defense in the home,  it maintained the right is not absolute.[39] Specifically, the Second Amendment does not protect the right of citizens to carry arms for any sort of confrontation or limit “longstanding prohibitions on the possession of firearms by … the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as school and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[40] Two years later, the Court, in McDonald v. City of Chicago[41] held the right protected in Heller is incorporated against the States through the Fourteenth Amendment.[42] In other words, neither the federal government, nor state governments can infringe upon the right to bear arms for self-defense in the home, but can regulate arms consistent with the dicta in Heller.[43]

Red flag laws, despite criticism that they violate the Second Amendment, have been upheld in California,[44] Connecticut,[45]and Indiana[46] courts. The courts uniformly relied on the dicta in Heller in upholding the constitutionality of the State’s red flag law.[47] Moreover, contrary to Republican concerns regarding Due Process,[48] the aforementioned State courts found no Due Process issues with the red flag laws.[49]

Following the mass shooting in Parkland, eighteen states, including the District of Columbia, have introduced red flag laws to address the mass-shooting crisis.[50] Conversely, some States are making access to firearms easier to provide citizens with the chance to defend them against a shooter.[51] While the means adopted by the States may differ, the end is uniform among them—ending massing shootings. Proposals, like increased background checks[52] and arming teachers[53] likely will not address the mutually agreed upon cause of mass shootings, mental health.

However, at least one study on the impact of Connecticut’s red flag law on firearm related suicides, suggests such laws decrease these types of suicides.[54] Moreover, considering in most of the recent mass shootings authorities were warned the shooter might inflict harm on himself or others[55], red flag laws will give law enforcement the opportunity to proactively act on these concerns.[56]

Conditioning mental health funds on State’s enacting red flag laws is both sensible and Constitutional. H.R. 2598 provides Congress with an opportunity to act without imposing its federal power on individual States. Considering H.R. 2598 was proposed prior to Parkland, perhaps Congress should condition renewed mental health funds in conjunction with funds for the red flag laws. Should the States reject the funds, however, Congress still made the effort and the States, not Congress, will be accountable to its citizens. In conclusion, considering Congress is unable, or unwilling, to pass federal legislation, it should enable the States to do so with something more practical than offering “thoughts and prayers.”






[1] Ryan Grenoble, School Walkouts Go Nationwide As Students Push For Gun Control, Huffington Post, February 21, 2018, (last visited Feb 27, 2018).

[2]Katharine Q. Seelye & Jess Bidgood, What Are States Doing About Gun Violence After the Florida Shooting?, New York Times, February 26, 2018, (last visited Feb 27, 2018). (“It is not just in Florida where the mass shooting at a high school is prompting lawmakers to take up gun control legislation. The same thing is happening across the country, from Washington to Vermont.”); See also Ella Nilsen, 5 Republican and Democratic governors on what states can do on gun control, Vox, February 26, 2018, (last visited Feb 27, 2018).

[3] Julie Creswell & Michael Corkery, Walmart and Dick’s Raise Minimum Age for Gun Buyers to 21, New York Times, February 28, 2018, (last visited Feb 28, 2018). (Walmart announced it would no long sell guns or ammunition to people under twenty-one years old. Dick’s Sporting Goods also raised the age for selling guns or ammunition to 21 as well as discontinuing the sale of assault style rifles.)

[4] Jeremy Diamond & Dan Merica, Trump voices support for certain gun control measures, CNN, February 28, 2018, (last visited Feb 28, 2018); Ayesha Rascoe & Roberta Rampton, Trump pushes Congress for broad bill on guns after school shooting, Reuters, February 28, 2018, (last visited Feb 28, 2018).

[5]  See generally supra note 1-4.

[6] Susan Cornwell & Richard Cowan, U.S. congressional Republicans reject new limits on guns, Reuters, February 27, 2018, (last visited Feb 28, 2018) (House Speaker Paul Ryan, regarding arming teachers, was that “Local governments, not Congress, should decide whether to arm teachers.”

[7] Kimberly Leonard, Alex Azar says HHS will be ‘laser focused’ on mental health following shooting, Washington Examiner, February 15, 2018, (last visited Feb 27, 2018); Jonathan M. Metzl & Kenneth T. MacLeish, Mental Illness, Mass Shootings, and the Politics of American Firearms, 105 American Journal of Public Healthy240–249 (2015), (last visited Feb 27, 2018). (““Four assumptions frequently arise in the aftermath of mass shootings in the United States: (1) that mental illness causes gun violence, (2) that psychiatric diagnosis can predict gun crime, (3) that shootings represent the deranged acts of mentally ill loners, and (4) that gun control “won’t prevent” another Newtown (Connecticut school mass shooting).””).


[8] U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

[9] See infra note 22.

[10] See Gun Violence Restraining Order Act of 2017, H.R. 2598, 115th Cong. (2017); See also Red Flag Laws: Helping Prevent Mass Shootings, (2018), (last visited Feb 28, 2018).

[11] Id.

[12] Id.; See also Cal. Penal Code § 18125; Cal. Penal Code § 18150; Cal. Penal Code § 18175; Conn. Gen. Stat. § 29-38c; Ind. Code § 35-47-14-1; Ind. Code § 35-47-14-2; Ind. Code § 35-47-14-5; Ind. Code § 35-47-14-6; Ind. Code § 35-47-14-8; Oregon S. 719, 79th Leg., Reg. Sess. (Or. 2017)(not yet codified); Wash. Rev. Code § 7.94.030; Wash. Rev. Code § 7.94.040; Wash. Rev. Code § 7.94.050; Wash. Rev. Code § 7.94.080.

[13] Jeffrey W. Swanson, Michael A. Norko, Hsiu-Ju Lin, Kelly Alanis-Hirsch, Linda K. Frisman, Madelon V. Baranoski, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz & Richard J. Bonnie, Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?, 80 Law and Contemporary Problems 179-208, 187 (2017),  (last visited Feb 28, 2018);

[14] Id. (citing Conn. Gen. Stat. Ann. § 29-38c) (“The police take the report and must conduct an independent investigation to gather facts that might support a determination of “probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person . . . .”); See also Cal. Penal Code § 18150(b)(1) (same); Ind. Code § 35-47-14-1 (same); Wash. Rev. Code § 7.94.030(3)(a) (same).

[15] Id.

[16] Id. (“In determining whether grounds for the application exist or whether there is probable cause to believe they exist, the judge shall consider: (1) Recent threats or acts of violence by such person directed toward other persons; (2) recent threats or acts of violence by such person directed toward himself or herself; and (3) recent acts of cruelty to animals as provided in subsection (b) of section 53-247 by such person. In evaluating whether such recent threats or acts of violence constitute probable cause to believe that such person poses a risk of imminent personal injury to himself or herself or to others, the judge may consider other factors including, but not limited to (A) the reckless use, display or brandishing of a firearm by such person, (B) a history of the use, attempted use or threatened use of physical force by such person against other persons, (C) prior involuntary confinement of such person in a hospital for persons with psychiatric disabilities, and (D) the illegal use of controlled substances or abuse of alcohol by such person.”); See also Cal. Penal Code § 18155 (same);

[17] Id.; See also Cal. Penal Code § 18160 (21 day cooling off period); Ind. Code § 35-47-14-5 (14 day cooling off period); Wash. Rev. Code § 7.94.050(5) (same).

[18] Id.

[19] Id.; See also Cal. Penal Code § 18175 (firearms are held by court for one year); Ind. Code § 35-47-14-6 (firearms are held by court until court determines individual can resume possession.); Wash. Rev. Code § 7.94.080(1) (firearms are held by court for one year at which point petitioner can request a new hearing).

[20] Jason Hanna & Laura Ly, After the Parkland massacre, more states consider ‘red flag’ gun bills CNN (2018), (last visited Mar 7, 2018).

[21]See HHS Office of the Secretary & Office of Budget (OB), FY 2018 Budget in Brief –, (last visited Mar 7, 2018) ($252,000,000 cut from mental health).

[22] 483 U.S. 203 (1987).

[23] Id. at 207-08.

[24] Id. at 211-12. (“Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power.”)

[25] Id. at 209.

[26] Id. at 208.

[27]  483 U.S. 203, 207 (1987) (“The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.”).

[28] See supra note 14, at 184 (“Moreover, individuals at high risk of violence commonly have access to firearms at home even if they would not qualify to buy a gun themselves, because they live in households with guns legally purchased by family members or others.”).

[29] Id. at 208 (“Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously …, enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.”); See also supra note. 10 (H.R. 2598: “In order to receive a grant under section 4, on the date that is 3 years after the date of enactment of this Act, each State shall have in effect legislation that—(1) authorizes a gun violence prevention order and gun violence prevention warrant in accordance with subsection (b); and (2) requires each law enforcement agency of the State to comply with subsection (c).”).

[30] Id. at 208-09 (“Indeed, the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended—safe interstate travel. This goal of the interstate highway system had been frustrated by varying drinking ages among the States. … By enacting § 158, Congress conditioned the receipt of federal funds in a way reasonably calculated to address this particular impediment to a purpose for which the funds are expended.”).

[31] Id. at 209.

[32] Id.

[33] Id. at 210; See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”); See also Printz v. United States, 521 U.S. 898, 935 (1997) (“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”).

[34] 567 U.S. 519, 581 (2012).

[35] Id. (“[T]he financial “inducement” Congress has chosen is  more than “relatively mild encouragement”—it is a gun to the head.”)

[36] Id.

[37] 554 U.S. 570 (2008).

[38] Id.

[39] Id. at 595.

[40] Id. at 687.

[41] 561 U.S. 742 (2010).

[42] Id. at 790.

[43] Id. at 782 (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  We repeat those assurances here.” (citations omitted)).


[44] City of San Diego v. Boggess, 216 Cal. App. 4th 1494, 1497 (2013) (“[B]oth Heller and McDonald identified an expressly nonexclusive list of traditional limitations on the right to bear arms, characterizing them as “presumptively lawful regulatory measures….” Section 8102, which prohibits a person detained under section 5150 from recovering their seized firearms upon proof by the seizing agency that returning the weapon would be likely to result in endangering that person or others, is such a regulatory measure. We reject that in Heller and McDonald the U.S. Supreme Court categorically invalidated such laws, which are designed to keep firearms out of the hands of a dangerous person.”).

[45] Hope v. State, 133 A.3d 519, 524-25 (Conn. App. Ct. 2016) (“Section 29-38c does not implicate the second amendment, as it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes. It restricts for up to one year the rights of only those whom a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of the firearms. The statute is an example of the longstanding ‘presumptively lawful regulatory measures’ articulated in District of Columbia v. Heller. . . . We thus conclude that § 29-38c does not violate the second amendment.”).

[46] Redington v. State, 992 N.E.2d 823, 846 (Ind. Ct. App. 2013) (“[T]he United States Supreme Court has recently and repeatedly recognized the legitimate governmental purpose of prohibiting the mentally ill from possessing firearms. See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). The purpose of the Act is to provide a mechanism for the State to seize and retain firearms from persons it deems “dangerous,” which as Section 1 describes above, are persons who, due to mental instability, present risk of personal injury to themselves or others, be it imminent or in the future. Accordingly, and giving deference to the legislative decision, we conclude that the Act is rationally calculated to advance this legitimate governmental interest.”).

[47] Id.; See also supra note 43, 44.

[48] Lindsey McPherson, Democrats Push Bill They Say Could Have Prevented Parkland Shooting, Roll Call, February 16, 2018, (last visited Mar 7, 2018).

[49] Hope, 133 A.3d at 524.; Boggess, 216 Cal. App. 4th at 1503; Reddington, 992 N.E.2d at 848.

[50] See generally supra note 10, 12.

[51] See supra note 2 (Kansas introduced legislation to lower the age for concealed carry from 21 to 18 and allowing permits to carry on college campuses; South Dakota passed a law allowing people to carry guns at school and churches.).

[52] See supra note 13, at 183 (citing Jeffrey W. Swanson, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz, Kelly Alanis-Hirsch, Daniel Mosely, Charles Dion & John Petrila, Gun Violence, Mental Illness, and Laws that Prohibit Gun Possession: Evidence from Two Florida Counties, 35 HEALTH AFF. 1067, 1067–75 (2016) (“Similarly, a substantial proportion of those at risk for committing violent crimes with guns do not have a record that would prohibit them from purchasing or possessing firearms.”).

[53] Michael Hansen, There are ways to make schools safer and teachers stronger-but they don’t involve guns Brookings (2018), (last visited Mar 7, 2018).

[54] Supra  note 13, at 208.

[55] Andrew Gumbel, Mass shootings: why do authorities keep missing the warning signs? The Guardian (2018), (last visited Mar 7, 2018) (“In almost every case, behaviors were observed and caused concern, whether in the physical world or in cyberspace through emails and social media activity, and in many cases these were reported to law enforcement,” said John Cohen, a former senior counter-terrorism coordinator with the Department of Homeland Security who now conducts training on spotting potential mass killers.”)

[56] See supra note 13, at 185 (“Rather, in order to effectively deter and prevent people like Hicks [Chapel Hill, NC shooter who killed three Muslim students] from using guns in a harmful way, a different kind of law would have been needed: a legal tool to effectively remove guns from a dangerous person who already possesses them, that is, a preemptive, risk-based gun seizure law that would apply to dangerous-but-not-otherwise-gun-prohibited persons.”)



23 NYCRR 500: The New Standard for Cybersecurity

By Denisse Stephanie Mira, J.D. Class of 2017 Co-Editor-in-Chief, Journal of Race, Gender, and Ethnicity

On September 13, 2016, New York Governor Andrew Cuomo proposed the first of its kind cybersecurity regulation, 23 NYCRR 500 (the “Regulation”).[1] This Regulation applies to banks, insurers, and financial services regulated by the New York Department of Financial Services (the “DFS”).[2] It was slated to become effective January 1, 2017, but due to public comments concerning small businesses, it was revised and became effective as of March 1, 2017.[3] There is a 180-day grace period for companies to comply with the requirements unless otherwise specified.[4] Under the Regulation, an additional requirement to provide a Certification of Compliance to the DFS will commence on February 15, 2018.[5]

This Regulation has been in the works since 2014, following a series of high-profile data breaches with companies such as Target Corp. and The Home Depot, Inc.[6] The breaches at those companies lead to millions of dollars in losses.[7] Governor Cuomo stated, “[t]hese strong, first-in-the-nation protections will help ensure this industry has the necessary safeguards in place in order to protect themselves and the New Yorkers they serve from the serious economic harm caused by these devastating cyber-crimes.”[8] The Regulation is the first of its kind in the nation because it provides actual rules instead of guidelines. It distinguishes itself from other cyber security regulations like the Gramm-Leach-Bliley Act’s (“GLBA”) privacy rule, which only offers recommendations.[9] If the Regulation’s rules are not followed, the DFS is ominous and broad in how it can seek enforcement and compliance.[10]

In formulating the new regulation, the DFS utilized the information it obtained from polling about 200 regulated banking institutions and insurance companies.[11] The DFS also surveyed a cross-section of those polled and cybersecurity experts, to discuss emerging trends and risks, due diligence processes, and policies and procedures governing relationships with third party service providers.[12]

Who and What 23 NYCRR 500 Covers

The Regulation defines a “Covered Entity” as “any [p]erson operating under or required to operate under a license, registration, charter, certificate, permit, accreditation or similar authorization under the [New York] banking law, the insurance law or the financial services law.”[13] Recognizing that certain smaller entities may have difficulty reaching the minimum standard set by the DFS, the Regulation exempts them from some, but not all, of the requirements.[14] The Regulation also directly affects the third-party service providers of those “Covered Entities.” The third-party service providers must comply with the Regulation even if they may not be directly doing business in New York.[15]

The goal of the Regulation is to secure “Nonpublic Information”[16] from abuse, interference and unauthorized access.[17] It includes numerous categories of information that a “Covered Entity” receives either from consumers or about consumers, including information that is considered nonpublic personal information under the GLBA Privacy Rule.[18] Accordingly, the Regulation’s definition of nonpublic information is far broader than what New York’s pre-existing data protection law defines as “personal information.”[19]

Key Points of the Cybersecurity Program for Covered Entities

“Covered Entities” must:

  • Implement a cybersecurity program with written policies and an audit trail.
  • Implement procedures for assessing and testing the security of all internal and external developed applications.
  • Assess risk to non-public information and information systems accessible or held by third-party service providers.
  • Conduct third-party security assessments at minimum annually.
  • Require and provide that all personnel attend regular cybersecurity awareness training.
  • Create and implement controls to protect non-public information.
  • Establish an incident response plan for possible and actual data breaches.
  • The incident response plan must include the identification and precise roles and responsibilities of the individuals who will carry out the actions the response plan specifies.
  • Employ a Chief Information Security Officer (“CISO”) and dedicated cybersecurity personnel.
  • The CISO and cybersecurity personnel can be internal or a third-party service provider.
  • Identify cyber risks and conduct penetration testing at least annually and vulnerability assessment at least quarterly. [20]

Limiting Access to Information and Systems

Under the Regulation, “Covered Entities” will be required to encrypt their “Nonpublic Information” in transit by January, 2018 and their Nonpublic Information at rest by January, 2022.[21]

“Covered Entities” must also require multifactor authentication for remote access to its systems or for privileged access to the servers that contain “Nonpublic Information”.[22] Due to the extent that the Regulation seeks to control “Nonpublic Information,” implementation of those security measures may be expensive. The expense depends on how many platforms the information may be shared on, since each would need to meet the requirements of the Regulation, and any party that has access would need to be trained accordingly to remain compliant.[23]

The Regulation makes “Covered Entities” responsible for the cybersecurity practices of the third parties who hold or can access “Nonpublic Information.”[24] The third parties’ policies and procedures are to be assessed by the “Covered Entity” for any risks that come from using those third parties.[25]

This will be a challenge for the “Covered Entities” as it likely will not have full and direct access to examine or control the cybersecurity program the third party adopts.


Notice of a “Cybersecurity Event” must be sent from the “Covered Entity” to the “Superintendent” within seventy-two hours of its occurrence.[26] The Regulation defines a “Cybersecurity Event” as any attempt or attack “that has a reasonable likelihood of materially affecting the normal operation of the Covered Entity or that affects Nonpublic Information . . .”[27]

This provision creates more of a problem than a solution. A “Covered Entity” may have to report a data breach or attempted breach to the “Superintendent” before the “Covered Entity” has an opportunity to fully assess the nature and extent of the incident. If an entity were allotted more time to address the breach, it would be better equipped to accurately communicate the scope of the event and detail the event’s nature and likely consequences with more precision. Thus, the data collected from the reporting would be more accurate for the DFS’s recordkeeping. These records are what the DFS will use to enforce the Regulation and protect the data that is exchanged.[28]


“Covered Entities” are subject to extensive recordkeeping requirements under the “audit trails.”[29] They must use the information from the “audit trails” to detect any attempted and actual attacks.[30] Such “audit trail” records must be maintained for three to six years depending on the type of data that is collected.[31]

Annual Certification

By February 15, 2018, “Covered Entities” must certify in writing to the Superintendent that they are in full compliance with the Regulation.[32] The record of certification must be maintained for at least five years and made available to the Superintendent upon request.[33]

It should be noted that the backup materials need only be maintained for five years and the audit trail materials must be maintained for three to six years, which suggests that the Superintendent may also use the audit trail as a source of information to search for additional violations.[34]

Individuals who sign the certification may be exposed to personal liability if the “Covered Entity” is ultimately found to be noncompliant.[35] The Superintendent may enforce the Regulation pursuant to her “authority under any applicable laws.”[36]


New York State is taking the lead in establishing these minimum standards for cybersecurity programs, but it is the “Covered Entities” and their third-party service providers that bear the expensive and tedious burden of meeting and keeping to the new standards imposed by the Regulation.

“Covered Entities” must start assessing cybersecurity risks, policies, and procedures to develop or enhance their cybersecurity program and to begin documenting and tracking their compliance efforts so that they can become compliant by August 28, 2017. [37]

Considering the ominous and broad repercussions under Section 500.20 for non-compliance, compliance attorneys and cyber-security firms will be in high demand.

[1]Press Release, Dep’t of Fin. Services, Governor Cuomo Announces Proposal of First-in-the-Nation Cybersecurity Regulation to Protect Consumers and Financial Institutions (Sept. 13, 2016) [hereinafter Press Release].

[2] Id.

[3] Id.

[4] Key Dates under New York’s Cybersecurity Regulation (23 NYCRR Part 500), N.Y. Dep’t of Fin. Services, (last visited Apr. 12, 2017).

[5] Id.

[6]Karen Freifeld & Jim Finkle, New York State Cyber Security Regulation to Take Effect March 1, Thomson Reuter (Feb. 16, 2017 4:14 PM),

[7] Id.

[8] Press Release, supra note 1.

[9] Gretchen A. Ramos & Larry P. Schiffer, New York Revamps Proposed Cybersecurity Regulation for Financial Services and Insurance Entities, Nat’l Law Rev. (Apr. 11, 2017),

[10] “This regulation will be enforced by the superintendent pursuant to, and is not intended to limit, the superintendent’s authority under any applicable laws.” N.Y. Comp. Codes R. & Regs. tit. 23, § 500.20 (2017).

[11] Press Release, supra note 1.

[12] Press Release, supra note 1.

[13] 23 NYCRR § 500.01(c).

[14] Id. at § 500.19.

[15] Id. at § 500.03(l).

[16] Id. at § 500.01(g).

[17] Id. at § 500.01(g)(1).

[18] See 15 U.S.C. §§ 6801-09 (2011) (showing the categories of information that a “Covered Entity” receives).

[19] Compare 23 NYCRR § 500.01(g)(2), with NY. Pub. Off. Law § 92(7) (McKinney 2011).

[20] See generally 23 NYCRR § 500.

[21] Frequently Asked Questions Regarding 23 NYCRR PART 500, N.Y. Dep’t of Fin. Services (Mar. 13, 2017), [hereinafter FAQ].

[22] 23 NYCRR § 500.11(b)(1).

[23] Id. at § 500.14.

[24] Id. at § 500.11.

[25] Id. at § 500.11(a).

[26] Id. at § 500.17.

[27] 23 NYCRR § 500.01(d).

[28] Id. at § 500.06.

[29] Id. at § 500.06.

[30] Id. at § 500.06.

[31] Id. at § 500.06(b).

[32] FAQ, supra note 21.

[33] 23 NYCRR §500.17 (b).

[34] Id. at § 500.02.

[35] “This regulation will be enforced by the superintendent pursuant to, and is not intended to limit, the superintendent’s authority under any applicable laws”. 23 NYCRR § 500.20; see, e.g., N.Y. Bank Law § 672 (West through L.2017, chs. 1-23).

[36] 23 NYCRR § 500.20.

[37] FAQ, supra note 21.



Conceptual Separability Conceptualized

By Joseph Tromba, J.D. Class of 2018 Touro Law Review Associate Editor

Courts have struggled to devise a test to establish “whether ‘the pictorial, graphic, or sculptural features’ incorporated into the design of a useful article ‘can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the [useful] article’ when those features cannot be removed physically from the useful article.”[1] This doctrine is applied to countless commodities that directly and indirectly impact the day-to-day lives of everybody in society.[2] Further, an establishment of separability, either conceptual or physical, is a precondition to copyrightability for a design of a product.[3]

The distinction between design elements that are protectable and functional elements that are not protectable can be unclear.[4] Generally, the concept of separability is the standard of copyrightability for useful articles’ designs.[5] The types of works that are subject to the separability analysis are broad; courts have implemented the separability doctrine to decide “the copyrightability of the designs of a variety of everyday objects, including furniture, shoes, and objects of entertainment for both children and adults.”[6] There exists “two ways to determine whether a pictorial, graphic, or sculptural work is separable from the utilitarian aspects of an article—physical separability and conceptual separability.”[7]

The Copyright Office outlines “the physical-separability test as follows: ‘Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.’”[8] For example, the Office contemplates a creative decorative ornament of a vehicle,’ which could be removed from the vehicle without demolishing the vehicle or the ornament, a physically separable aspect a vehicle, which can be recognized independently from and is able to exist separately of, the functional aspects of the vehicle.[9] However, the physical separability test is not as effective when the useful article is not three-dimensional since it is difficult to physically remove the useful article from the item it appears on.[10] When features cannot be physically separated from an object, the conceptual separability test is applied.[11]

There have been many different approaches presented for confronting the issue of conceptual separability.[12] Courts have struggled to establish one universal test for whether the design of a useful article and the utilitarian aspects of a useful article can be separated and exist independently of one another.[13] Around ten different tests exist within legal commentary to determine separability.[14] Some of these tests are misguided and got muddled down by focusing on other factors, such as the marketability of the design or useful article.[15] To prevent any further inconsistencies and struggles as to how to approach conceptual separability, the Supreme Court finally adopted a general rule.[16]

In Varsity Brands, Inc. v. Star Athletica, L.L.C., Varsity brought a copyright infringement claim against Star Athletica.[17] Varsity alleged that Star marketed uniforms that were substantially similar to Varsity’s copyrighted designs.[18] The Supreme Court decided, in a 6-2 holding, that an aspect that is included in the design of an article can qualify for copyright protection “only if the feature (a) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work” if the design could be conceived separately from the product in which it is involved.[19] Accordingly, the Court held that Varsity’s designs satisfied the test.[20] Essentially, if the design could be conceived separately from the product in which it is involved then the conceptual separability test is satisfied and the design is copyrightable.[21]

Finally, the test creates a national standard for conceptual separability that differs from physical separability.[22] The test is clear, in that it does not confuse physical separability.[23] It places an emphasis on the specific aesthetic features, which are capable of existing separately as intangible features in relation to the solely utilitarian aspects of the article.[24] This test, in theory, looks as if it will accomplish what the physical separability test cannot do, such as dealing with the intangible aspects of the useful article as actually being intangible aspects, and is a competent rule to exist alongside the physical separability test.[25] This test firmly establishes a basic approach that could be applied widespread, and will hopefully be an effective approach to compliment the physical separability standard.[26] Further, the test addresses the actual purpose of conceptual separability better than the preexisting approaches that existed in legal precedent because this test is clearer and does not get muddled in other factors, such as marketability.[27] This standard is a focused test that allows the courts to tackle the issue of whether the aesthetic element of a product is conceptually separable from the utilitarian aspect.[28]

The Court’s recent conceptual separability holding finally provides a national standard for conceptual separability.[29] Conceptual separability is all around us, and it will only continue to expand as time goes on and new designs and useful articles are created.[30] The concept of conceptual separability was thought to have reached its vanishing point because of various the different approaches and interpretations of the idea.[31] Hopefully, this holding will prove to have finally clarified a dividing line between copyrightable designs and noncopyrightable useful article designs.[32] Since the Court’s opinion was released on March 22, 2017, we will have to wait and see how this new test is executed when separability issues arise.[33] Many believe that the future of a $300 billion industry is going to be determined based on this decision.[34]

[1] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 484 (6th Cir. 2015) (holding that the graphic attributes of a creator’s designs were protectable in accordance with the Copyright Act because the Act protects graphic attributes of designs even if the attributes cannot be physically extracted from the article).

[2] Barton R. Keyes, Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separability in American Copyright Law, 69 Ohio St. L.J. 109, 111 (2008).

[3] Id. at 110.

[4] Eliya, Inc. v. Kohl’s Dep’t Stores, No. 06 Civ 195(GEL), 2006 WL 2645196, at *10 (S.D.N.Y. Sept. 13, 2006) (holding that a specific shoe design was not conceptually separable because the design of the parts of the shoe could not exist independently).

[5] Sepehr Shahshahani, The Design of Useful Article Exclusion: A Way Out of the Mess, 57 J. Copyright Soc’y U.S.A. 859, 864 (2010).

[6] Keyes, supra note 2, at 111.

[7] Varsity Brands, Inc., at 481.

[8] Id. at 481-82.

[9] Id. at 482.

[10] Id.

[11] Id. at 483.

[12] Varsity Brands, Inc., at 484.

[13] Id.

[14] Mark Hannemann, Star Athletica v. Varsity Brands: Supreme Court Evaluating Copyrights in Features of Useful Articles, Shearman (Apr. 7, 2017),

[15] Galiano v. Harrah’s Operating Co., Inc., 416 F.3d 411, 419 (5th Cir. 2005) (ruling that designs were not eligible for copyright protection absent any showing that the designs were marketable separately of their practical function as uniforms).

[16] Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010-11 (2017).

[17] Varsity Brands, Inc., 799 F.3d at 471-76.

[18] Id.

[19] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[20] Gene Quinn & Steve Brachmann, Copyrights at the Supreme Court: Star Athletica v. Varsity Brands, IPWatchdog,

[21] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[27] Hannemann, supra note 14; Galiano, 416 F.3d at 419.

[28] Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663, 670 (3d Cir. 1990) (holding that a nose mask is not a “useful article” and cannot be copyrighted).

[29] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[30] Keyes, supra note 2, at 111.

[31] Sally M. Donahue, The Copyrightability of Useful Articles: The Second Circuit’s Resistance to Conceptual Separability, 6 Touro L. Rev. 327, 357 (1990).

[32] Quinn & Brachmann, supra note 20.

[33] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[34] Hannemann, supra note 14.

Constitutional Rights Pushed Aside with a Guilty Plea?

By Molly Moloney, J.D. Class of 2018 Touro Law Review Associate Editor

On May 30, 2013, Rodney Class parked outside of the U.S. Botanic Garden in Washington D.C., just 1000 feet from the capitol building.[1] U.S. Capitol Police approached his vehicle, looked in the cab, and saw what they believed to be firearms.[2] This led to a search of Class’s car, where 256 rounds of ammunition were found[3] along with three loaded firearms: a Taurus .44 caliber pistol, a Ruger LC9 9mm pistol, and a Henry Arms .44 caliber rifle.[4] Class was subsequently indicted for violating 40 U.S.C. § 5104(e) (“unlawful possession of a firearm on capitol grounds or buildings”)[5] and 22 D.C. Code § 4504(a) (carrying a pistol [outside home or place of business]”).[6]

After his indictment, Class filed several motions to dismiss, arguing, among other things, that the Second Amendment protected his storage of the weapons found in his car.[7] By October 2014, the District Court denied Class’s motions and concluded that the “government-owned parking lot was the same as a ‘government building’ where all weapons could presumptively be banned” and denied his claim that his Second Amendment rights had been violated.[8]

Less than one month after the denial of his motions, Class accepted a plea offer from the Office of The United States Attorney for the District of Columbia and pled guilty to violating 40 U.S.C. § 5104(e).[9] He signed an agreement stating that by accepting the plea offer he was waiving “certain rights afforded by the Constitution of the United States . . . the right to plead not guilty, and the right to a jury trial.”[10] In addition, Class waived his “right to appeal the sentence in this case . . . except . . . the right to appeal [an] illegal sentence,” and waived “any right to challenge the conviction entered or sentence imposed . . .”[11] Class, under pro se representation, signed the agreement on November 16, 2014, with an acknowledgment by attorney A.J. Kramer, his standby counsel.[12] Nonetheless, Class appealed to the Court of Appeals for the D.C. Circuit.[13]

On appeal, Class argued that 42 U.S.C. § 5104(e) violated his Second Amendment right to bear arms in that it “effectively ban[s] law-abiding citizens from securely storing lawfully owned weapons in their cars parked in a publicly accessible lot.”[14] The government argued in response that his right to raise any constitutional claims were inherently waived when he pleaded guilty.[15] The court ultimately sided with the government and refused to address the merits of Class’s constitutional claims.[16] Despite the holding of the D.C. Circuit, Class filed a petition for writ of certiorari to the Supreme Court on September 30, 2016.[17] The Supreme Court granted the petition for writ of certiorari on February 21, 2017, and is on schedule to address the issue that has created a split in the circuit courts: whether constitutional challenges to a statute of conviction are inherently waived when a criminal defendant pleads guilty.[18]

As it stands, the D.C., First, and Tenth Circuits do not allow constitutional challenges to a criminal statute after a guilty plea, while the Third, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits allow such claims.[19] The Seventh and Eighth Circuits make their determinations on a facial and as-applied basis.[20] This circuit split on whether to permit a constitutional challenge after a guilty plea has arisen, in part, because of two inconsistent Supreme Court decisions: Blackledge v. Perry[21] and Menna v. New York.[22] In Blackledge, the Supreme Court held that “when a criminal defendant enters a guilty plea, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”[23] However, one year later in Menna, the Court held that “[a] guilty plea . . . simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is established.”[24] This ambiguity in Supreme Court decisions has likely contributed to the confusion and split in the circuit courts’ interpretation and application.

In October 2017, the Supreme Court will rule on this challenging issue and determine Rodney Class’s fate in regards to his constitutional claims.[25] Not only will this affect Class, but it will affect the rights of any other criminal defendant who pleads guilty in future litigation. With time and the reasoned judgment of the Supreme Court, nine justices will decide whether criminal defendants will be provided an avenue of relief for constitutional violations after a plea of guilty.

[1] Petition for Writ of Certiorari at 5, Class v. U.S., 2016 WL 5765174 (Sept. 30, 2016) (No. 16-424).

[2] Petition for Writ of Cert., supra, note 1.

[3] John Elwood, Relist Watch, SCOTUSblog (Jan. 27, 2017 3:52 PM),

[4] Indictment, U.S. v. Class, 2013 WL 9601401 (Oct. 23, 2014) (No. 1:13-cr-00253-RWR).

[5] 40 U.S.C. § 5104(e) (2002).

[6] 22 D.C. Code § 22-4504(a) (2012).

[7] Petition for Writ of Cert., supra note 1, at 6-8.

[8] Petition for Writ of Cert., supra note 1, at 7-8.

[9] Class Plea Agreement, U.S. v. Class, No.: 1:13-cr-00253-RWR (D.D.C. Oct. 23, 2014) ECF No. 169.

[10] Class Plea Agreement, supra note 9, at 5-6.

[11] Class Plea Agreement, supra note 9, at 6.

[12] Class Plea Agreement, supra note 9, at 10. Stand by counsel is an attorney who is appointed to assist a defendant when he or she decides to proceed pro se. Standby counsel, Black’s Law Dictionary (10th ed. 2014).

[13] Petition for Writ of Cert., supra note 1, at 9.

[14] Petition for Writ of Cert., supra note 1, at 9.

[15] Petition for Writ of Cert., supra note 1, at 10.

[16] Petition for Writ of Cert., supra note 1, at 10.

[17] Petition for Writ of Cert., supra note 1.

[18] Petition for Writ of Cert., supra note 1, at 12-13.

[19] Reply Brief for Petitioner at 1-2, Class v. U.S., 2016 WL 34881 (U.S. Jan. 3, 2017) (No. 16-424).

[20] Brief for Petitioner, supra note 19, at 2.

[21] 417 U.S. 21 (1974)

[22] 43 U.S. 61 (1975).

[23] Blackeldge, 417 U.S. at 29-30.

[24] Menna, 43 U.S. at 62, fn. 2.

[25] Supreme Court of the United States, SCOTUSblog, (last visited April 4, 2017).


The Trump Administration and Nepotism

By Patryk O. Rogowski, J.D. Class of 2018 Touro Law Review Junior Staff Member

On January 9, 2017, President Donald J. Trump named Jared Kushner, his son-in-law, as his senior adviser.[1] On April 29, 2017, the White House announced that President Trump’s daughter, Ivanka Trump, will become an unpaid employee in the West Wing.[2] These appointments have raised many questions among the public pertaining to nepotism laws that govern government hiring.[3]

To determine whether President Trump is legally permitted to appoint members of his immediate family to work in the White House, two statutes must be examined.[4] The first is 5 U.S.C. § 3110, which governs nepotism in the federal government.[5] The second is 3 U.S.C. § 105, which pertains specifically to appointments made directly by the president.[6]

Section 3110 was passed by Congress and signed into law by Lyndon B. Johnson on December 17, 1967.[7] The law was a result of then-President John F. Kennedy’s appointment of his brother Robert F. Kennedy to the cabinet position of Attorney General in 1960.[8] Politicians in Washington and the general public were uneasy about this appointment,[9] and several years later, Congress sought to prevent nepotism of this type.[10]

The statute prohibits a federal official from hiring, promoting or recommending the hiring or promoting of any relative to any federal agency or department over which the official exercises authority.[11] For these purposes, the statute defines a “relative” to include both a daughter and a son-in-law.[12] Additionally, the statute explicitly includes the president in its definition of “public official.”[13] Furthermore, the statute defines an “agency” to include an “executive agency.”[14] To determine whether this statute pertains to the hiring of Jared Kushner and Ivanka Trump, the question becomes whether the White House qualifies as an “executive agency” under the statute.[15] The United States Court of Appeals for the District of Columbia Circuit in Haddon v. Walters[16] held that the Executive Residence in the White House is not an “executive agency” under Title 5.[17] This seems to compel the conclusion that the White House as a whole is not considered an “executive agency.”[18]

In 1993, President Bill Clinton appointed his wife, Hillary Rodham Clinton, to head the President’s Task Force on National Health Care Reform.[19] This appointment led to several motions being filed for a preliminary injunction based on anti-nepotism laws.[20] The D.C. Circuit Court found that “[a]lthough section 3110(a)(1)(A) defines agency as ‘an executive agency,’ we doubt that Congress intended to include the White House or the Executive Office of the President.”[21] The Court thus permitted the president to appoint his wife to serve as the head of the task force.[22]

Thus, based on case law, it would appear that Section 3110 does not prohibit the President of the United States from appointing members of his immediate family to serve as senior White House advisers. However, one more statute is relevant in solving this issue.

Section 105 governs the hiring of individuals to work directly for the president.[23] Section 105(a) states, in relevant part, “the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service.”[24] The only limitation on the president’s hiring abilities under Section 105 is a salary cap.[25] Section 105’s language certainly appears to give the president broad authority and wide discretion in appointing his employees and advisers. The use of the phrase “without regard” in the statute appears to indicate that the president occupies a special and unique place in the federal government and is entitled to make appointments of a vast range of individuals, including members of his own family. There have been no judicial opinions interpreting Section 105’s language.

Much public discourse has surrounded President Trump’s appointments of his daughter and son-in-law to high-ranking positions in his administration.[26] To date, no court ruling has either authorized or prohibited the actions taken by President Trump. The case law that is available appears to lean heavily in favor of the appointments made. Furthermore, the plain language of the applicable statutes also appears to lean heavily in favor of President Trump. While strong public discourse on this topic is likely to continue, it is likely that a court will hold these appointments to be lawful.

[1] Glenn Thrush, Jared Kushner Named Senior White House Adviser to Donald Trump, N.Y. Times (Jan. 9, 2017),

[2] Dan Merica, Gloria Borger, Jim Acosta & Betsy Klein, Ivanka Trump is making her White House job official, CNN Politics (Mar. 30, 2017),

[3] Nepotism is defined as the “bestowal of official favors on one’s relatives, esp. in hiring; specif., the practice of unfairly giving the best jobs to members of one’s family when one is in a position of power.” Nepotism, Black’s Law Dictionary (10th ed. 2014).

[4] See 5 U.S.C. § 3110 and 3 U.S.C. § 105, which govern the appointment of family members by the President of the United States to work in the White House.

[5] 5 U.S.C. § 3110 (2006).

[6] 3 U.S.C. § 105 (2006).

[7] 5 U.S.C. § 3110.

[8] Josh Zeitz, The Bitter Feud Behind the Law That Could Keep Jared Kushner Out of the White House, Politico (Nov. 17, 2017),

[9] Id.

[10] It is important to note that the post of Attorney General is a cabinet-level post requiring the approval of the United States Senate. However, most White House adviser positions do not require Senate confirmation. Id.

[11] 5 USC § 3110.

[12] 5 U.S.C. § 3110(a)(3).

[13] 5 U.S.C. § 3110(a)(2).

[14] 5 U.S.C. § 3110(a)(1)(A).

[15] If the White House is not determined to be an “executive agency,” the anti-nepotism statute will not apply. See 5 U.S.C. § 3110.

[16] 43 F.3d 1488 (D.C. Cir. 1995).

[17]Walters, 43 F.3d at 1490.

[18] Id.

[19] Thomas L. Friedman, Hillary Clinton to Head Panel On Health Care, N.Y. Times (Jan. 26, 1993),

[20] Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993).

[21] Id.

[22] Id.

[23] 3 U.S.C. § 105 (2006).

[24] 3 U.S.C. § 105(a) (2006).

[25] 3 U.S.C. § 105(a)(1) (2006).

[26] See Aaron Blake, Why Donald Trump’s Family Being In The White House Is Problematic, Explained, Washington Post (Nov. 16, 2016),

Packingham v. North Carolina: Reducing Recidivism One Social Media Post at a Time


By Jenna Jonassen, J.D. Class of 2018 Touro Law Review Associate Editor

Lester Gerard Packingham was convicted under North Carolina state law for something that most people do every single day—posting to his Facebook account. On April 27, 2010, Packingham posted on his Facebook page proclaiming his excitement over the dismissal of a recent traffic violation.[1] He posted: “God is good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!”[2] While this seemingly innocent post does not appear out of the ordinary for most, the fact that Packingham was a registered sex offender in North Carolina at the time that the post was made subjected him to criminal liability.[3]

In 2002, Packingham was convicted of two counts of statutory rape of a thirteen-year-old child in Cabarrus County, North Carolina.[4] In exchange for a guilty plea, the state lowered Packingham’s charges to “taking indecent liberties with a child” and he was required to register as a sex offender with the state.[5] In accordance with the state’s previously enacted Sex Offender Registration Program and recognizing the potential risk for recidivism of certain classes of sex offenders after they are released from incarceration,[6] the North Carolina legislature enacted § 14-202.5 of the North Carolina General Statutes[7] in 2008, which banned registered sex offenders from utilizing social networking websites in which minor members are able to enroll.[8] When a member of the North Carolina Police Department found Packingham’s Facebook page, listed under an alias but confirmed to be Packingham by his profile picture, and discovered his recent post, the officer obtained a search warrant for Packingham’s residence.[9] The search resulted in the officer’s seizure of evidence that implicated Packingham as the Facebook account holder, as well as, ironically, a signed copy of changes to the North Carolina sex offender laws that were sent to Packingham by the state.[10] Given Packingham’s sex offender status and his use of, the state brought charges against Packingham in September 2010 for violation of § 14-202.5.[11]

In order for a violation to occur under § 14-202.5, classified as a Class I felony,[12] the state is required to prove that the registered offender knew that the site allowed minor users to register,[13] that the offense was committed within the state,[14] and that the site used meets all of the following criteria:

1. Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Website.

2. Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.

3. Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Website.

4. Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.[15]

Sites devoted specifically to commercial transactions, or those with limited capabilities, such as photo-sharing, electronic mail, or instant messenger, for example, are specifically excluded from the statute’s reach.[16]

At a pre-trial hearing, Packingham moved to dismiss the charges against him on the grounds that § 14-202.5 violated his constitutional rights to free speech and association[17] as guaranteed under both the First Amendment to the United States Constitution[18] and Article I, § 14 of the North Carolina State Constitution.[19] The North Carolina Superior Court of Dunham County denied Packingham’s motion to dismiss and found that the statute was constitutional as applied to Packingham; however, due to jurisdictional issues, the court failed to determine whether the statute was constitutional on its face.[20] As a result, Packingham’s case went to trial and he was found guilty of accessing commercial social networking sites in violation of § 14-202.5 and sentenced to six to eight months imprisonment with twelve months of supervised probation.[21]

On appeal to the Court of Appeals of North Carolina, Packingham alleged that § 14-202.5 was unconstitutional due to its overbreadth, vagueness, and failure to be narrowly tailored to a legitimate government interest.[22] In finding that the statute was content-neutral,[23] the North Carolina Court of Appeals determined that the statute must withstand intermediate scrutiny, which requires it to be “narrowly tailored to achieve a significant governmental interest” while still “leav[ing] open ample alternative channels for communication of the information.”[24] The court found that § 14-202.5 was not narrowly tailored because it treated all sex offenders equally, despite potential differences in offenses and the likelihood of recidivism—subclasses which the North Carolina legislature specifically intended to differentiate between when they enacted § 14-202.5.[25] Specifically, the court held that “the statute is not narrowly tailored because it fails to target those offenders who ‘pose a factually based risk to children through the use or threatened use of the banned sites or services’” and “burdens more people than necessary to achieve its purported goal.”[26]

Further, the court held that the statute was unconstitutionally vague because it “lacks clarity” and “certainly fails to give people of ordinary intelligence fair notice of what is prohibited.”[27] While offenders would understand that sites resembling Facebook and Myspace would be prohibited under this law, they might not be aware that the language of § 14-205.5 also prohibits visitation of sites like Google and Amazon.[28] Though seemingly innocent, these sites also generate revenue from advertising, allow for social interaction between people, and allow minors to create user profiles, qualifying them as prohibited under the statute even though these sites might not even necessarily be frequented by minors.[29] Having further issue with the language of § 14-202.5, the court indicated that the statute’s general prohibition on “access” to commercial networking sites would actually make it unlawful for sex offenders in North Carolina to even happen upon a prohibited site or log-in to social networking accounts that may have been established prior to being registered as a sex offender.[30]

However, upon the State’s request for review, the court reversed the judgment of the North Carolina Court of Appeals.[31] Relying on the United States Supreme Court’s decision in United States v. O’Brien,[32] the court applied a four-factor test to determine whether Section 14-202.5 was “sufficiently justified” under intermediate scrutiny.[33] Applying this test, the court found that the statute’s enactment was within the power of the North Carolina legislature and satisfied a significant governmental interest in keeping recidivism rates for registered sex offenders low.[34] While the court determined that Section 14-202.5 could have been drawn more narrowly, the court ultimately held that the statute was sufficiently narrow to further the governmental interest without more than incidental constitutional implications.[35]   For example, although many sites would fall within the ambit of those prohibited by the statute, the court determined that there were also enough sites that would not be prohibited by Section 14-202.5 that served virtually similar purposes.[36] Therefore, the court held that the statute is not unreasonable and is thus constitutional both facially and as applied.[37] The court stated that the government’s interest was entirely too important to “invalidate [this] statute on its face.”[38]

The Supreme Court of the United States granted certiorari of Packingham’s appeal on October 28, 2016, to consider whether the North Carolina statute under which Packingham was convicted is unconstitutional both facially and as applied.[39] Though the Supreme Court has yet to render a decision, oral arguments were made by both parties on February 27, 2017.[40] Analysis of these arguments revealed that the Justices had a difficult time accepting the implications that the North Carolina statute had on First Amendment freedoms.[41] Specifically, Justice Kagan noted that the implications of Section 14-202.5 would prohibit registered sex offenders from being able to access political information from Twitter, which was deemed to be a “crucially important channel of political communication.”[42] Justice Kagan further noted that sites like Facebook and Twitter have “become incredibly important parts” of social, religious, and political culture as they have been “embedded in our culture as ways to communicate and ways to exercise constitutional rights.”[43] Justice Ginsburg agreed that social networking sites make up a “very large part of the marketplace in ideas”[44] and Justice Alito even expressed similar concerns, indicating that “there are people who think life is not possible without Twitter and Facebook.”[45] However, the Supreme Court Justices were not shy in pointing out that they previously allowed the states to impose other restrictions on the fundamental rights of convicted criminals, and that restricting First Amendment rights for registered sex offenders would not be dissimilar.[46]

Though a decision by the United States Supreme Court is forthcoming, the Justices’ responses to the petitioner and the respondent’s oral arguments make it clear that technological innovations have become so ingrained in our culture that constitutional restrictions on our use of it would speak to the very essence of who we are. Though the Supreme Court has previously allowed the states to restrict the constitutional rights of convicted criminals, North Carolina law provides that sex offenders must remain registered with the state for even non-violent sexual offenses for 30 years from the initial date of registration.[47] This means that sex offenders would be subject to these significant social restrictions for the majority of their lives.[48] While the concern for recidivism for sexually-based offenses toward minors is, of course, a significant governmental and public concern, the question remains whether the government is at liberty to almost permanently restrict individuals from these publicly-accessible channels of information on which our generation relies without substantial constitutional implications.

[1] State v. Packingham, 777 S.E.2d 738, 749 (2015).

[2] Id.

[3] Id. at 742.

[4] Id.

[5] Brief for Respondent at 8, Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194),

[6] N.C. Gen. Stat. § 14-208.5 (referring generally to Chapter 14, Article 27a of the North Carolina General Statutes titled Sex Offender and Public Protection Registration Programs).

[7] N.C. Gen. Stat. § 14-202.5.

[8] Packingham, 777 S.E.2d at 742.

[9] Id.

[10] Brief for Respondent, supra note 5, at 9.

[11] Packingham, 777 S.E.2d at 742.

[12] N.C. Gen. Stat. § 14-202.5(e).

[13] N.C. Gen. Stat. § 14-202.5(a).

[14] N.C. Gen. Stat. § 14-202.5(d).

[15] N.C. Gen. Stat. § 14-202.5(b).

[16] N.C. Gen. Stat. § 14-202.5(c).

[17] State v. Packingham, 777 S.E.2d 738, 742 (2015).

[18] U.S. Const. amend. I.

[19] N.C. Const. art I, § 14.

[20] Packingham, 777 S.E.2d at 742.

[21] Id.

[22] State v. Packingham, 748 S.E.2d 146, 149 (N.C. App. 2013).

[23] The court determined that this statute was content-neutral because it restricted an individual’s access to certain social networking sites without commenting on the type of speech found on those sites. Id. at 150 (referring to State v. Petersilie, 334 N.C. 169, 183 (1993)). As a general rule, the court indicated that content-neutral regulations must be evaluated under intermediate scrutiny, while other types of regulations on free speech that are more content-specific are subject to a more exacting standard. Id.

[24] Id. at 150.

[25] Id. at 152.

[26] Packingham, 748 S.E.2d 146 at 152.

[27] Id. at 153.

[28] Id.

[29] Id.

[30] Id. at 153-54.

[31] State v. Packingham, 777 S.E.2d 738, 741 (2015).

[32] United States v. O’Brien, 391 U.S. 367 (1968).

[33] Packingham, 777 S.E.2d 738 at 746. The court identified the relevant factors of this test to be 1) whether the statute was in the constitutional power of the Government; 2) whether the statute furthered a substantial governmental interest; 3) whether that government interest was related to the suppression of free expression; and 4) whether the statute is narrowly tailored to further that governmental interest without implication on First Amendment guarantees being greater than required in order to further that interest. Id.

[34] Id.

[35] Id. at 744.

[36] Id. at 747.

[37] Id. at 748, 750.

[38] State v. Packingham, 777 S.E.2d 738, 751 (2015) (internal citations omitted).

[39] Supreme Court of the United States, SCOTUS blog, (last visited Mar. 22, 2017).

[40] Id.

[41] See Transcript of Oral Argument, Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194),

[42] Id. at 28.

[43] Id. at 32.

[44] Id. at 47.

[45] Id. at 54.

[46] Transcript of Oral Argument, supra note 40, at 4-5.

[47] State v. Packingham, 748 S.E.2d 146, 148 (N.C. App. 2013).

[48] Id.

Is it Time to Legalize Marijuana?

By Andrea Laterza, J.D. Class of 2018 Touro Law Review Associate Editor

Mass incarceration has become a disturbing issue in this country.[1] The United States is home to only five percent of the world’s population, yet houses twenty-five percent of the world’s prisoners.[2] “The War on Drugs” has been a direct cause of mass incarceration.[3] Someone is arrested for drug possession every twenty-five seconds, which amounts to 1.25 million drug-related arrests each year.[4] In 2015, there were 574,000 arrests made for marijuana possession whereas 505,681 arrests were made for violent crimes, such as rape and murder.[5] Thus, there were more people arrested for mere possession of marijuana than for heinous, violent crimes.[6]

In 1972, there were less than 350,000 people incarcerated; however, due to the War on Drugs, that number skyrocketed by approximately 500%, amounting to over 2,000,000 people incarcerated today.[7] Despite Nixon and subsequent presidents’ intentions, the War on Drugs has been a failure.[8] Its wrath left U.S. prisons overcrowded, filthy, and a huge expense for taxpayers.[9] If marijuana were to be legalized, the number of inmates would reduce significantly, thereby saving the government hundreds of millions of dollars.[10] Not only would the government save money, but it would also profit.[11] Colorado, one of the several states that has legalized marijuana for recreational use, generated approximately $70 million in tax revenue during the first fiscal year that cannabis was legally sold and taxed.[12]

Aside from the monetary incentive, there may be a constitutional reason to end the criminalization of marijuana.[13] Arguably, the right to use marijuana falls within the recognized rights of privacy and autonomy.[14] The Supreme Court has repeatedly held that the Constitution “create[s] zones of privacy,” which extend to the home and personal bodily choices.[15] The Court has found that the rights to choose abortion, to refuse medical treatment, to use contraception, and to engage in consensual sodomy all fall within the “penumbra” of privacy and autonomy rights.[16] Using marijuana is analogous to these recognized rights because it is also a private, bodily choice.[17] In fact, one state has already held that using marijuana falls within the privacy right of the Constitution.[18] The Supreme Court of Alaska emphasized the importance of privacy within one’s home and held that “possession of marijuana by adults at home for personal use is constitutionally protected.”[19] The court based its holding, in part, on scientific research demonstrating that marijuana is not at all harmful or dangerous to the user or anyone else; therefore, Alaska had no legitimate interest in its prohibition.[20]

Even if using marijuana is not a privacy right, it is arguably a fundamental liberty “deeply rooted in this Nation’s history and tradition.”[21] Marijuana can be traced all the way back to 2737 B.C..[22] The Chinese emperor began prescribing marijuana for ailments, such as gout, rheumatism, and malaria.[23] The drug’s popularity spread across the globe and was used to treat all kinds of pain from earaches to childbirth.[24] In the 1600’s, the plant made its way to the United States where it became a major cash crop.[25] Hemp was used for many purposes, such as medicine, construction, and paper products.[26] In fact, the Declaration of Independence, signed by the Founding Fathers themselves, was written on hemp.[27] Even George Washington and Thomas Jefferson grew hemp.[28] The plant only became illegal in the 1900’s after it was negatively associated with Mexican immigrants.[29] The government falsely vilified marijuana as a drug linked to crime and insanity.[30] The American Medical Association even opposed the government’s position on marijuana because doctors wished to prescribe the drug.[31] Marijuana is not dangerous; no one has ever died from it.[32] In fact, experts believe marijuana has significant health benefits, such as treating glaucoma, speeding up metabolism, controlling seizures, and preventing cancer.[33] Nevertheless, the drug has been unscientifically outlawed.[34]

Today, marijuana is federally categorized as a schedule I drug, alongside hard drugs like heroin and cocaine.[35] According to the Supremacy Clause, federal law trumps state law, which means that even if one is in a state where marijuana is legal, he or she could still face federal prosecution.[36] A drug conviction may prevent citizens from taking out student loans, securing a job, renting a home, obtaining welfare benefits, or even voting.[37] It is time to end the stigma surrounding marijuana because the drastic effects of its criminalization are affecting millions of Americans.[38]

[1] See infra note 2 and accompanying text.

[2] Pamela Engel, Watch How Quickly the War on Drugs Changed America’s Prison Population, Bus. Insider (Apr. 23, 2014, 1:19 PM),

[3] Fareed Zakaria, Incarceration Nation: The War on Drugs Has Succeeded Only in Putting Millions of Americans in Jail, Time (Apr. 2, 2012),,9171,2109777-1,00.html.

[4] Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, ACLU Update (ACLU/ Human Rights Watch, New York, N.Y.), Oct. 5, 2016, at 2, 4.

[5] Id. at 5.

[6] Id.

[7] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 8 (The New Press 2012).

[8] Ray Williams, Why “The War on Drugs” Has Failed, Psychology Today (June 6, 2011),

[9] Saki Knafo, 10 Ways to Reduce Prison Overcrowding and Save Taxpayers Millions, Huffington Post (Nov. 8, 2013, 7:30 AM),

[10] Id.

[11] See infra note 12 and accompanying text.

[12] Tanya Basu, Colorado Raised More Tax Revenue from Marijuana Than from Alcohol, Time (May 18, 2016, 12:49 PM),

[13] See infra notes 14, 21 and accompanying text.

[14] See infra notes 15-20 and accompanying text.

[15] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[16] Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 304 (1990); Roe v. Wade, 410 U.S. 113, 166 (1973); Griswold, 381 U.S. at 484.

[17] Id.

[18] Ravin v. State, 537 P.2d 494, 511 (Alaska 1975).

[19] Id.

[20] Id. at 506-12.

[21] Washington v. Glucksberg, 521 U.S. 702, 703 (1997).

[22] Patrick Stack, A Brief History of Medical Marijuana, Time (Oct. 21, 2009),,8599,1931247,00.html.

[23] Id.

[24] Id.

[25] John Dvorak, America’s Harried Hemp History, Hemphasis (2004),

[26] Matt A.V. Chaban, Cannabis Construction: Entrepreneurs Using Hemp for Home-Building, N.Y. Times (July 6, 2015),; Stack, supra note 21.

[27] Seeley v. State, 940 P.2d 604, 628 n.10 (Wash. 1997).

[28] Id.

[29] Tim Weber, Would Government Prohibition of Marijuana Pass Strict Scrutiny?, 46 Ind. L. Rev. 529, 543 (2013).

[30] Id.


[32] Ravin, 537 P.2d at 508 (comparing cannabis to alcohol and barbiturates, which are legal, and do kill people).

[33] Jennifer Welsh & Kevin Loria, 23 Health Benefits Of Marijuana, Business Insider (Apr. 20, 2014, 3:03 PM),

[34] Dr. Malik Burnett & Dr. Amanda Reiman, How Did Marijuana Become Illegal in the First Place?, Drug Policy Alliance (Oct. 9, 2014),

[35] 21 U.S.C. § 812 (2012).

[36] U.S. Const. art. VI, cl. 2.

[37] Every 25 Seconds, supra note 4, at 11.

[38] See supra notes 3-5, 7, 9, 20, 26, 29-31, 37 and accompanying text.

Tri-Custody: The New Wave Of Custody And Visitation Arrangements Or An Unworkable And Erroneous Arrangement?

By Bradley Kaufman, J.D. Class of 2018 Touro Law Review Junior Staff Member

In the matter of Dawn M. v. Michael M.,[1] decided on March 8, 2017, in Suffolk County Supreme Court, the Honorable Patrick Leis, III granted a “tri-custody” arrangement.[2] This ruling is considered “groundbreaking”[3] and “historic.”[4] In Dawn M., the husband (defendant) and wife (plaintiff) got married in 1994.[5] Shortly thereafter, the couple discovered their fertility issues after numerous failed efforts to conceive a child.[6] Several years later in 2001, the plaintiff met and became close friends with Audria G., a resident in a downstairs apartment in the same apartment building.[7] Audria had a boyfriend at the time she met the plaintiff, but ultimately ended that relationship and moved into the same apartment with the plaintiff and defendant.[8]

The three individuals then began to “engage in intimate relations.”[9] Husband Michael M., wife Dawn M., and Audria called themselves a family and agreed to conceive a child together, in which Audria would be artificially inseminated because Dawn was infertile.[10] The fertility doctor that the trio visited refused to artificially inseminate Audria with Michael M.’s sperm because she was not the wife of Michael M.[11] Audria eventually became pregnant after having unprotected sexual intercourse with Michael M. and the child was born in 2007.[12] Prior to conception of the child, however, the three individuals all agreed that they would raise a child together as a “thruple.”[13] Ultimately, the marital relationship between Dawn M. and Michael M. dissolved, in which Dawn M. filed for divorce, moved out of the apartment where the threesome resided and moved into a residence to live with Audria and the child.[14] A custody action was commenced and settled preceding the divorce action, which resulted in joint custody of the child between Audria and Michael M. with residential custody to Audria and liberal visitation for Michael M.[15] Because Dawn M. was not awarded custody or visitation and was fearful that she would not be in the child’s life because of her lack of biological connection to the child, Dawn M. petitioned the Court for her own custody and visitation rights of the child.[16]

Pursuant to New York Domestic Relations (DRL) law §70,[17] “either parent may apply to the Supreme Court for a writ of habeas corpus . . . and the Court . . . may award the natural custody . . . of such child to either parent.”[18] Ever since Alison D. v. Virginia M.[19] was decided in 1991, “parent” in the context of DRL §70 excluded non-biological individuals, who fostered significant relationships with the child.[20] However, the definition of “parent” from Alison D., was effectively overruled in 2016 in Brooke S.B. v. Elizabeth A.C.C.,[21] to include non-biological, non-adoptive partners, who establish “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”[22] With respect to Custody and Visitation Orders, the Court is required to maintain the best interests of the child,[23] which is accomplished by recognizing what will “promote his welfare and happiness.”[24] The court in Dawn M. ordered a “tri-custodial arrangement”[25] and proffered that the child’s best interests “cry out for an assurance that [the child] will be allowed a continued relationship with the plaintiff,”[26] notwithstanding the plaintiff’s lack of a biological link to the child.[27]

Since before the child was born, Dawn M. acted like a mother to the child despite Dawn M. not carrying the child.[28] For example, Dawn M. went with Audria to a majority of her doctor appointments and Dawn M. used her medical insurance to cover the pregnancy and delivery of the child.[29] Upon the child being born, Dawn M. rotated with Audria to feed the child during the night and took the child to the doctor as well.[30] The only family the child knows consists of his three parents and refers to both Dawn M. and Audria as “mommy.”[31] The child makes no distinction based on biology and thus considers Dawn M. and Audria as “equal mommies.”[32] The court adamantly agrees with the child’s assertions and reasoned that the child would be devastated if his ability to see Dawn M. ceased.[33] The court opined that the child clearly demonstrated that “he enjoys his present living situation and would not want it altered in any way.”[34] Thus, the court granted a tri-custody arrangement because it would undoubtedly serve the best interests of the child.[35]

One of the rationales behind Dawn M. petitioning the court for custody and visitation was to avoid Dawn M. having to get permission from either Audria or Michael M. in order to see the child.[36] The court reasoned that this case “represents the logical next step,” in the expansion of who constitutes a “parent” to have standing to seek custody and visitation after Brooke S.B.[37] The court is confident that because of the thruple’s cohesive history in raising the child, in which the thruple have already made significant decisions pertaining to the child’s “health, education, and welfare,” it will continue to do so moving forward.[38] However, it is no guarantee that the thruple’s cohesiveness will stand the test of time.

Currently, Dawn M. and Audria are living together but separately from Michael M. The court rejected Dawn M.’s request for visitation of one weekend a month because it would take visitation time away between Michael M. and the child.[39] The court justified its denial of Dawn M.’s weekend visitation because she essentially has de facto residential custody of the child as a result of living with Audria, and thus sees the child almost daily, resulting in substantially more time with the child than Michael M.[40] It will be interesting to see if Dawn M. will be satisfied with the arrangement and her visitation schedule if her relationship dissolves with Audria and she moves out. Moving out will result in the loss of de facto residential custody and significantly reduce her overall visitation with the child because the court denied her one-weekend-a-month request. New York Supreme Courts deciding custody and visitation matters may have their hands full when ordering tri-custody arrangements if the above-referenced situation comes to fruition. This decision is also worth monitoring to see if it makes its way up to the Court of the Appeals to settle the tri-custody issue of first impression in New York.

[1] 2017 WL 923725 (Suffolk Cnty. Sup. Ct. 2017).

[2] Id. at *2.

[3] Julia Marsh, Historic ruling grants ‘tri-custody’ to trio who had threesome, New York Post (March 10, 2017), [hereinafter “Historic Ruling.”].

[4] Historic Ruling, supra note 3.

[5] Dawn M., 2017 WL 923725 at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dawn M., 2017 WL 923725 at *2.

[11] Id. at *2.

[12] Id. at *2-3.

[13] Id. at *3; “A sexual relationship . . . between three people.” MacMillian Dictionary, (last visited March 20, 2017).

[14] Dawn M., 2017 WL 923725 at *3.

[15] Id.

[16] Id.

[17] N.Y. Dom. Rel. §70 (McKinney’s 2017).

[18] Id.

[19] 572 N.E.2d 27 (N.Y. 1991).

[20] Id. at 29.

[21] 61 N.E.3d 488 (N.Y. 2016).

[22] Id. at 490.

[23] N.Y. Dom. Rel. §240 (McKinney’s 2017).

[24] Id.

[25] Dawn M., 2017 WL 923725 at *5.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id.

[30] Dawn M., 2017 WL 923725 at *3.

[31] Id.

[32] Id. at *4.

[33] Id.

[34] Id.

[35] Dawn M., 2017 WL 923725 at *4.

[36] Id. at *3.

[37] Id. at *5, n.6.

[38] Id. at *4.

[39] Id.

[40] Dawn M., 2017 WL 923725 at *4.

Court Case Has ‘Sirius’ Impact on Common Law Copyright in NY

By Luann Dallojacono, J.D. Class of 2018 Touro Law Review Junior Staff Member

It’s 1967, and the band The Turtles has a no. 1 hit.[1] “So Happy Together” has people imagining me and you day in and day out.[2]

Fast-forward almost five decades later, and in 2013, the song is the subject of several lawsuits pitting the 1960s band against satellite radio giant SiruisXM.[3] Flo & Eddie, Inc., the company that controls the Turtles’ music and that is owned by original band members Mark Volman and Howard Kaylan sued SiriusXM in California, Florida, and New York for playing the band’s songs without the company’s permission.[4]

Flo & Eddie filed three class action suits claiming copyright protection under state law.[5] The plaintiffs were independent artists and record companies, including Flo & Eddie. [6] The suits have since uncovered some confusion about the applicability of copyright law to sound recordings made prior to 1972 and whether certain state’s laws allow the owners of those songs to control performing rights for the recordings.[7] As the New York District Court put it, “The long and short of this is—Sirius makes multiple copies, temporary, permanent, whole or partial, during its broadcast process; and it performs the copies it makes. Furthermore, as to pre–1972 sound recordings, it does so without obtaining licenses or paying royalties.”[8]

The parties are in the process of settling in California after Sirius was found liable under California law.[9] Sirius agreed to pay at least $25 million for playing pre-1972 recordings without a license and $5 million for each victory in state court if Flo & Eddie won its cases in New York, California and Florida.[10] The settlement also includes $59 million for a 10-year license for recordings by the plaintiffs at a 5.5% royalty rate.[11]

But legal developments last month may have some questioning the settlement. In February, Sirius saw victory when the case was dismissed in New York, overturning rulings in 2014 by the U.S. District Court.[12] The dismissal also reduced the amount of the settlement reached in California by $5 million as per the settlement agreement.[13]

The New York District Court described the case as one about copyright in sound recordings, which are media in or on which a particular performance of a song is fixed.[14] Congress gave sound recordings copyright protection in 1971 and in 1995 added a “limited public performance right” for sound recordings to give copyright holders of sound recordings the “exclusive right . . . to perform the copyrighted work publicly by means of a digital audio transmission.”[15] However, the 1971 Act has an important limitation in that recordings made prior to February 15, 1972, do not qualify for federal copyright protection.[16] Congress left the issue of pre–1972 sound recordings to the states.[17]

The Turtles’ recordings were all fixed before that February date in 1972, leaving none eligible for copyright protection under federal law.[18] Thus, Flo & Eddie looked to state law.[19] In New York, the company argued that pre–1972 sound recording owners have rights and remedies under the common law, which covers pre–1972 sound recordings and prohibits reproducing and publicly performing the recordings.[20]

This past February, New York’s Second U.S. Circuit Court of Appeals accepted a December 20, 2016, ruling by the state Court of Appeals holding that New York common-law copyright does not protect public performance for creators of sound recordings made before 1972.[21] The issue came before the high court after the Second Circuit Court of Appeals certified the following question to the court: “Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?”[22] It was an issue of first impression for the Court of Appeals.[23] After an exhausting look at relevant case law, the court concluded that New York’s common law has not recognized a right of public performance for those who have created sound recordings prior to 1972. [24] The court noted that recognizing such a right would rattle societal expectations and carry with it extensive economic consequences as well as pervasive and widespread ramifications. [25] The issue would be more appropriately addressed by the legislature, the court added.[26] Judge Rivera dissented and came to the opposite conclusion. [27] She argued that the benefits of a right of public performance coupled with the creator’s desire to be compensated for his or her labor in making the recording pair well with society’s interest in protecting artists and their works from exploitation.[28] She also said that the right aligns well with increasing the public access to artists’ endeavors, the expectations of the music industry, and the fact that “Congress has placed a time limit on common-law protections for pre-1972 sound recordings while providing a limited right of public performance for all sound recordings made after February 15, 1972.”[29]

Sirius also won the Florida case in 2015, making its legal record 2-for-3.[30] Perhaps it is as the singer Meat Loaf would say: “Two out of three ain’t bad.”[31]


[1] See Ben Sisario, SiriusXM Agrees to Pay Up to $99 Million to Settle Turtles-Backed Copyright Suit, N.Y. Times (Nov. 29, 2016),

[2] The Turtles, So Happy Together (White Whale Records 1967).

[3] See Sisario, supra note 1.

[4] See Sisario, supra note 1.

[5] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp.3d 325, 335 (S.D.N.Y. 2014); see Sisario, supra note 1.

[6] See Sisario, supra note 1.

[7] Ben Sisario, SiriusXM Agrees to Pay Up to $99 Million to Settle Turtles-Backed Copyright Suit, N.Y. Times (Nov. 29, 2016),

[8] Sirius, 62 F. Supp.3d at 334.

[9] In California, Flo & Eddie alleged violations of Cal. Civ. Code § 980(a)(2) and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § § 17200, et seq., conversion, and misappropriation. The court granted the company’s motion for summary judgment on all causes of action insofar as the claims are based on Sirius XM’s public performance conduct. See Flo & Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG RZX, 2014 WL 4725382 at *12 (C.D. Cal. 2014). See also Jonathan Stempel, Siruis XM Wins Dismissal of Turtles Copyright Lawsuit in New York, Insurance Journal (Feb. 21, 2017),; Jonathan Stempel, Sirius May Settle Music Copyright Suit Brought by The Turtles for $100M, Insurance Journal (Nov. 20, 2016),

[10] See Sisario, supra note 1; Stempel, Sirius XM Wins Dismissal, supra note 9.

[11] See Sisario, supra note 1.

[12] Stempel, Siruis XM Wins Dismissal, supra note 9.

[13] Stempel, Siruis XM Wins Dismissal, supra note 9.

[14] 17 U.S.C. § 101; See Sirius, 62 F. Supp. at 335–36.

[15] 17 U.S.C. § 106; See Sirius, 62 F. Supp. at 336.

[16] 17 U.S.C. § 301(c); See Sirius, 62 F. Supp. at 336.

[17] See Sirius, 62 F. Supp.3d at 336.

[18] Id.

[19] Id.

[20] Id.

[21] See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 610 (2016); Stempel, Siruis XM Wins Dismissal, supra note 9.

[22] Sirius, 28 N.Y.3d at 589.

[23] Id. at 595.

[24] Id. at 594-603.

[25] Id. at 606.

[26] Id.

[27] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 28 N.Y.3d 583, 617 (2016) (Rivera, J., dissenting).

[28] Id. at 620-21.

[29] Id.

[30] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-23182-CIV, 2015 WL 3852692 at *1 (S.D. Fla. 2015).

[31] Meat Loaf, Two Out of Three Ain’t Bad (Epic Records 1977).


The Criminalization of HIV

By Barbara J. Roman, J.D. Class of 2018 Touro Law Review Associate Editor

From the start of the HIV epidemic, fear and ignorance about HIV’s modes and risks of transmission[1] have fueled a backlash against people living with HIV/AIDS.[2] This backlash is most evident in existing laws that punish those living with HIV for engaging in consensual sex or other activities that pose no risk of HIV transmission.[3] These laws penalize “alleged, perceived or potential HIV exposure; alleged nondisclosure of a known HIV-positive status before any sexual contact (including acts that do not risk HIV transmission); or non-intentional HIV transmission.”[4] In the 1980s and early 1990s, HIV/AIDS was a leading cause of death among adults in the U.S., with the mortality rate climbing every year from 1987 to 1994.[5] By the latter year, the disease had become the leading cause of death among adults 25-44 years of age.[6] In 1990, Congress passed the Ryan White Comprehensive AIDS Resources Emergency Act requiring each state to enact criminal laws to prosecute any HIV-infected individual who knowingly exposed another person to HIV.[7] The states obliged, but some forced HIV-positive people to disclose their status before every sex act and many made any possible exposure to HIV a felony.[8] By 2011, a total of sixty-seven laws explicitly focused on persons living with HIV had been enacted in thirty-three states.[9] There are, however, problems with these HIV laws.[10]

Many HIV laws are unjust and the penalties are wildly disproportionate to the offense.[11] Long jail terms are imposed for HIV convictions even when there is no real risk of transmission and no actual injury.[12] For example, in Iowa, Nick Rhoades plead guilty to a Class B felony after a one-time, consensual sexual encounter in which he wore a condom.[13] Mr. Rhodes received a sentence of twenty-five years and was required to register as a sex offender.[14] Other Class B felonies in Iowa include manslaughter, kidnapping, and robbery.[15] Engaging in sexual intercourse while having HIV or AIDS is a Class A felony in Arkansas and carries a sentence of six to thirty years.[16] In comparison, intentionally using a deadly weapon to cause serious injury to a family member is a Class B felony with a sentence of only five to twenty years.[17] A felony conviction and registration as a sex offender adds additional burdens to someone already dealing with the stresses of living with HIV.[18]

Advocates of the criminalization of HIV/AIDS argue that criminal laws deter HIV-positive individuals from risk taking behavior, as well as punish individuals who place others at risk of infection.[19] Unlike criminals of violent sexual assaults, most people who spread HIV do so through carelessness or ignorance, not malevolence.[20]   HIV laws create a culture of fear, and often discourage people from knowing their HIV status, seeking treatment, or disclosing their HIV status in appropriate circumstances, all of which are counterproductive in terms of curbing the transmission of HIV.[21] HIV experts from around the country have concluded that HIV criminalization statutes do nothing to curb the spread of the virus.[22] Instead, these laws “undermine the public health goals of promoting HIV screening and treatment” by scaring people away from learning their status. [23] Additionally, if a person thinks he or she may land in prison for sharing his or her status, he or she might be disinclined to share that information with potential partners.[24] Moreover, most HIV criminalization laws target people who spread HIV to a partner who consented to have sex in the first place.[25] While status disclosure is important, the burden should remain on the HIV-negative population to protect themselves from exposure.[26] By placing exclusive responsibility on the person living with HIV, these laws undermine the public health messages regarding shared responsibilities for safe sex.[27]

Many of these laws have not been updated since the early ’90s, and thus reflect a misunderstanding of the virus at the time.[28] Most states maintain laws based on outdated science[29] and have not assessed how their laws stand up to current evidence regarding HIV transmission risk.[30] The majority of HIV laws were passed before studies showed that antiretroviral therapy (ART) significantly reduced viral load.[31] Having a suppressed or undetectable viral load makes it very unlikely that an individual can transmit the HIV virus.[32]

Some laws criminalize spitting, biting, and “throwing of body fluids.”[33] An HIV positive homeless man in Dallas was sentenced to thirty-five years in prison for harassing a public servant with a deadly weapon: his saliva.[34] The Centers for Disease Control and Prevention categorizes the risk of transmission of HIV from spitting as negligible, and the exposure unlikely.[35]

The Civil Rights Division of the United States Department of Justice issued a best practices guide to help states reform their laws and ensure that their policies do not place unnecessary burdens on people who are living with HIV.[36] These best practices suggest that, among other things, criminal laws regarding HIV transmission and prevention be scientifically based, and that prosecutors and others in law enforcement have an accurate understanding of transmission risks.[37] In addition, Federal legislation has been introduced that would address discrimination in criminal laws against people with HIV.[38] The Repeal Existing Policies that Encourage and Allow Legal Discrimination Act (“REPEAL HIV”) was introduced in the House in March 2015.[39] The bill recommends that state attorney general’s work with public health officials to ensure that laws, regulations, and policies are all in line with the bill’s provisions regarding people living with HIV/AIDS.[40]

An important component to preventing the spread of HIV is to consider whether many of the HIV criminal laws run counter to our current understanding of best public health of scientific evidence about HIV transmission. States must also ensure that the laws do not undermine the public health goals of promoting HIV screening and treatment. While HIV-specific state criminal laws once were initially well-intentioned and necessary law enforcement tools, most are unjust or do not reflect the current state of the science of HIV. Laws that punish people for consensual behavior, or for behavior that pose no risk of HIV transmission, serve only to further stigmatize a community that is already marginalized while missing opportunities for prevention education.[41] States that choose to retain HIV-specific criminal laws should reform and modernize their laws so that they accurately reflect the current science of risk and modes of transmission and ensure they are the desired vehicle to achieve the states’ intended public health goals.

[1] See Lawrence K. Altman, AIDS Studies Hint Saliva May Transmit Infection, N.Y. Times, Oct. 9, 1984, at C1.

[2] Poll Indicates Majority Favor Quarantine for AIDS Victims, N.Y. Times, (last visited Feb. 5, 2017).

[3]See HIV Criminalization: A Challenge to Public Health and Ending AIDS, Scribd, (last visited Feb. 5, 2017).

[4] Id.

[5] Thirty Years of HIV/AIDS: Snapshots of an Epidemic, Amfar, (last visited Feb. 5, 2017).

[6] Lawrence K. Altman, AIDS Is Now the Leading Killer of Americans From 25 to 44, N.Y. Times, Jan. 31, 1995, at C2.

[7] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Pub. L. 101-381; 104 Stat. 576).

[8] See, e.g., Cal. Health & Safety Code § 120600 (West 2014); LA. Rev. Stat. Ann. § 40:1062 (2014); Mont. Code Ann. § 50-18-112 (2013); N.Y. Pub. Health Law § 2307 (McKinney 2014); S.C. Code Ann. § 44-29-60 (2014); Tenn. Code. Ann. § 68-10-107 (2014); VT. Stat. Ann. tit. 18 § 1106 (2014); W. VA. Code § 16-4-20 (2014); see also Chart: State –by-State Criminal Laws Used to Prosecute People with HIV, The Ctr. for HIV Law and Pol’y, (2013),

[9] See J. Stan Lehman et al., Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States, AIDS Behav., Jun 2014, Vol. 18, 997.

[10] See Best Practices Guide to Reform HIV-Specific Laws to Align with Scientifically-Supported Factors, U.S. Dep’t. of Just., C.R. Div., (last visited Feb. 5, 2017).

[11] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015),

[12] See, e.g., People v. Plunkett, 77 A.D.3d 1442, 1443, 907 N.Y.S.2d 919, 920 (2010), aff’d as modified, 19 N.Y.3d 400, 971 N.E.2d 363 (2012). An HIV-positive man was sentenced to 10 years in prison for aggravated assault after biting a police officer. His saliva was considered a dangerous instrument for the purposed of the “aggravated” portion of the charge; see, e.g., State v. Hinkhouse, 915 P.2d 489, 489 (1996). A man was convicted of ten counts of attempted murder and ten counts of attempted assault based on allegations that he engaged in unprotected sexual intercourse without disclosing his medical condition.

[13] Rhoades v. State, 840 N.2d 726 (Iowa Ct. App. 2013), vacated, 848 N.W.2d 22 (Iowa 2014) (plead to violating Criminal Transmission of Human Immunodeficiency Virus, Iowa Code § 709C.1(1994)).

[14] Id.

[15] Iowa Code Ann. § 709.3 (West 2013).

[16] Ark. Code Ann. §§ 5-14-123, 5-4-401, 5-4-201 (West 2010).

[17] Id.

[18] See US Dep’t. of Just., supra note 10; see, e.g., Saundra Young, Imprisoned Over HIV: One Man’s Story, CNN (Nov. 9, 2012, 8:42 PM),; Twenty states (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) and the District of Columbia have enacted laws regarding the post-incarceration involuntary civil commitment of individuals convicted of certain sex offenses under certain circumstances, including HIV crimes. In addition, the Adam Walsh Child Protection Safety Act of 2006, 42 USC § 1691, et seq., authorizes the federal government to institute involuntary civil commitment proceedings for federal sex offenders under certain circumstances.

[19] See Winifred H. Holland, HIV/AIDS and The Criminal Law, 36 Crim. L.Q. 279 (1993-1994).

[20] Robert Klitzman & Ronald Bayer, Mortal Secrets: Truth and Lies in the Age of AIDS 197 (Johns Hopkins University Press 2003).

[21] Brad Barber & Browen Lichtenstein, Support for HIV Testing and HIV Criminalization Among Offenders Under Community Supervision, Res. in the Soc. of Health Care, 33 (2015),

[22] National HIV/AIDS Strategy for the United States, The White House (July 2010),

[23] Id.

[24] LGBT Policy Spotlight: HIV Criminalization Laws (2016), Movement Advancement Project,

[25] Lower your Sexual Risk for HIV,, (last visited Feb 5, 2017).

[26] Id.

[27] The White House, supra note 22, at 37.

[28] See US Dep’t. of Just., supra note 10.

[29]HIV-Specific Criminal Laws Ctrs. for Disease Control and Prevention, (last visited Feb. 5, 2017).

[30] See US Dep’t. of Just., supra note 10.

[31] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, (last visited Feb. 5, 2017).

[32] Id.

[33] See The White House supra note 22, at 36; Eleven states still have statutes that criminalize spitting, biting and throwing while HIV positive (Georgia, Indiana, Louisiana, Missouri, Mississippi, Nebraska, Ohio, Pennsylvania, South Carolina, South Dakota, Utah).

[34] Campbell v. State, No. 05-08-00736-CR, 2009 WL 2025344, at 1 (Tex. App. Jul. 14, 2009).

[35] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, (last visited Feb. 5, 2017).

[36] U.S. Dep’t. of Just., supra note 10.

[37] U.S. Dep’t. of Just., supra note 10.

[38] H.R. 1586, 114th Cong. REPEAL HIV Discrimination Act of 2015 (2015-2016).

[39] Id.

[40] Id.

[41] U.S. Dep’t. of Just., supra note 10.