Investigative & Security Professionals for Legislative Action

Current Legislative News

  • 10 Sep 2015 11:54 AM | Anonymous member (Administrator)

    BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit

    Company's Criminal Background Policy Disproportionately Affected African-American Logistics Workers, EEOC Charged

    The U.S. District Court for the District of South Carolina on September 8 entered a consent decree ordering BMW Manufacturing Co., LLC (BMW) to pay $1.6 million and provide job opportunities to alleged victims of race discrimination as part of the resolution of a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit, details about which have been previously reported by ISPLA, had been filed by the EEOC on June 11, 2013. The suit alleged that BMW excluded African-American logistics workers from employment at a disproportionate rate when the company's new logistics contractor applied BMW's criminal conviction records guidelines to incumbent logistics employees. 

    More specifically, the complaint alleged that when BMW switched contractors handling the company's logistics in 2008 at its production facility in Spartanburg, S.C., it required the new contractor to perform a criminal background screen on all existing logistics employees who re-applied to continue working in their positions at BMW. At that time, BMW's criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony. According to the complaint, after the criminal background checks were performed, BMW learned that approximately 100 incumbent logistics workers at the facility, including employees who had worked at there for several years, did not pass the screen. EEOC alleged that 80 percent of the incumbent workers disqualified from employment as a result of applying BMW's guidelines were black. 

    Following an investigation, EEOC filed suit alleging that blacks were disproportionately disqualified from employment as a result of the criminal conviction records guidelines. EEOC sought relief for 56 African-Americans who were discharged. BMW has since voluntarily changed its guidelines.  

    BMW will pay a total of $1.6 million to resolve the litigation and two pending charges related to the company's previous criminal conviction records guidelines that had been filed with EEOC. In addition to monetary relief, BMW will offer employment opportunities to the discharged workers in the suit and up to 90 African-American applicants who BMW's contractor refused to hire based on BMW's previous conviction records guidelines. BMW also will provide training on using criminal history screening in a manner consistent with Title VII.  Additionally, BMW will be subject to reporting and monitoring requirements for the term of the consent decree.

    According to the EEOC, after learning of convictions, BMW responded by denying access to its facilities by anyone who had been in trouble with the law in the past.  "Claimants were denied access to the BMW facility without any individualized assessment of the nature and gravity of their criminal offenses, the ages of the convictions, or the nature of their respective positions," the complaint said. "Moreover, they were denied plant access without any assessment or consideration of the fact that many had been workings at the BMW facility for several years without incident for UTi and prior logistics service providers."

    Of those denied access to the plant because they had a criminal record, 80 percent were black and 18 percent white.  The EEOC characterized those numbers as "statistically significant."

    "EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity," said P. David Lopez, EEOC's General Counsel. 

    "We are pleased with BMW's agreement to resolve this disputed matter by providing both monetary relief and employment opportunities to the logistic workers who lost their jobs at the facility," said Lynette Barnes, regional attorney for the Charlotte District Office. "We commend BMW for re-evaluating its criminal conviction records guidelines that resulted in the discharge of these workers." 

    EEOC enforces federal laws against employment discrimination. The Commission issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s. The Commission has since considered this matter in 2008 and updated its guidance in 2012. This is one of the first cases involving the use of arrest and conviction records that EEOC has filed since the Commission issued the updated guidance.

    Bruce Hulme, ISPLA Director of Government Affairs

    Resource to Investigative and Security Professionals


  • 07 Feb 2015 4:49 PM | Anonymous member (Administrator)

    Five Important Questions about DEA's Vehicle Surveillance Program

    ISPLA is grateful to the Brennan Center for Justice in furnishing us with a recent article by Rachel Levinson-Waldman. Her informative article and the privacy questions which will affect this and other issues no doubt be addressed at some point during the 114th Congress. - Bruce Hulme, ISPLA Director of Government Affairs

    "Five Important Questions About DEA’s Vehicle Surveillance Program" by Rachel Levinson Waldman, originally published on on January 30, 2015.

    With each week, we seem to learn about a new government location tracking program. This time, it’s the expanded use of license plate readers. According to The Wall Street Journal, relying on interviews with officials and documents obtained by the ACLU through a FOIA request, the Drug Enforcement Administration has been collecting hundreds of millions of records about cars traveling on U.S. roads. The uses for the data sound compelling: combating drug and weapons trafficking and finding suspects in serious crimes. But as usual, the devil is in the details, and plenty of important questions remain about those details.

    First, who approved the program, and under what circumstances? We don’t know. The DEA is an arm of the Department of Justice, so presumably the Attorney General’s office has been involved, but details aren’t yet available. Also unknown is whether there has been any judicial oversight.

    Second, are there any limitations on how the data can be used? This is also unknown. The emails obtained by the ACLU indicate that the main purpose of the program was to assist in seizures of cars, money, and other assets, often from people not charged with any crime, a program that has come under withering criticism. But the history of data collection programs is that information collected for one purpose quickly becomes attractive for other purposes. And the more information available (even for proper purposes), the more is available for misuse as well. Indeed, license plate information has been abused in the past, with peaceful protestors’ data shared with the FBI.

    Third, how long can it be kept? The article reports that the DEA holds the data for three months, a significant drop from its previous two-year retention period. Much of this data is coming from readers set up by state and local law enforcement, though, and the retention periods for those jurisdictions are an inconsistent patchwork, with deletion times ranging from immediate (Ohio state patrol) to 90 days (Boston) to two years (Los Angeles County) to five years (New York City) to never (New York State Police). This is especially alarming given that a vanishingly small percentage of the millions of license plates scanned are actually connected to any crime or wrongdoing. At the same time, data collected by DEA reportedly goes back to state and local jurisdictions as well, setting up an endless loop of information with inadequate oversight. 

    Fourth, where else does the data go? Some of it is sent to fusion centers, which are state- or regional-based hubs that centralize information for sharing among the federal government, states, and private partners. Originally established in the wake of 9/11, fusion centers have largely abandoned their focus on terrorism for want of credible threats; they have instead transformed into an “all threats” model. In the process, they have been roundly criticized for wasting money, contributing little to counterterrorism efforts, and endangering both civil liberties and Privacy Act protections. Maryland and Vermont are known to feed their plate data to fusion centers, and the numbers are likely higher, given fusion centers’ voracity for data.

    Finally, which other federal agencies are using license plate readers? We know that the Department of Homeland Security is using them as part of their border enforcement. As of early 2009, nearly 100% of cars crossing the border were scanned with a license plate reader. And both DEA and DHS license plate readers can be coupled with cameras that provide pictures of the occupants of vehicles being scanned.

    Of course, the DEA database is only the latest in a string of disclosures that, taken together, reveal a web of powerful surveillance capabilities. Late last year, The Wall Street Journal revealed that the U.S. Marshals Service is using a secretive technology that sweeps up information about thousands of innocent Americans’ cell phones in the process of searching for suspects. As with the license plate reader scheme, little is known about the specifics of this program.

    And just last week, USA Today revealed that at least 50 law enforcement agencies, including the FBI and the U.S. Marshals Service, have obtained radar devices that allow them to detect any human movements inside a house, even motion as minimal as breathing, from more than 50 feet away. In at least one case, the device was used without a warrant to case a home for the presence of a suspected parolee.

    Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) have already expressed concern about this technology, and it’s hard to see how its use without a warrant passes constitutional muster. As the Tenth Circuit observed in a recently published case weighing the use of the radar technology, the Supreme Court has already disapproved of the use of a thermal imaging device to capture details of life within a home. Perhaps even more salient, the Court earlier established that tracking technology (known as a beeper) cannot be used without a warrant to confirm a person’s presence inside a private home, if obtaining that information would otherwise require entry into the home. It’s a little mystifying that using a high-powered radar for the same purpose would be kosher.

    Taken together, these stories suggest a zone of privacy that is narrowing so much as to be almost imperceptible. Separate from the question of how these technologies are actually being used, the breadth of surveillance capabilities they provide are staggering. You can be tracked on the streets; in your home; on your phone; and almost anywhere else. We seem to forever be caught in a kind of vicious cycle: it’s too early to criticize or critique technologies when they’ve just been introduced and there’s no record of misuse, but once they’ve been in place for even a year or two, they take on an air of inevitability. Indeed, the USA Today article calls the radar technology “hardly new” by virtue of the fact that the Marshals Service had started buying the devices in 2012 – but two plus years is nothing, especially when (as the story’s author notes) the federal government has played hide-the-ball with other surveillance technologies.

    There are many layers between us and a police state. But just as Bruce Schneier has written that it is “poor civic hygiene to install [online] technologies that could someday facilitate a police state,” so too is it poor civic hygiene to deploy a suite of physical surveillance technologies that could do the same.

  • 23 Jan 2015 5:49 PM | Anonymous member (Administrator)

    New York State Assembly Speaker Sheldon Silver Arrested On Corruption Charges

    Thursday, January 22, 2015

    Allegedly Used Official Position to Obtain $4 Million in Bribes and Kickbacks Concealed as Income From Outside Law Practice

    Preet Bharara, the United States Attorney for the Southern District of New York, and Richard Frankel, Special Agent-in-Charge of the Criminal Division of the New York Field Office of the Federal Bureau of Investigation (“FBI”), announced today that New York State Assembly Speaker SHELDON SILVER was arrested this morning on charges that he used his official position to receive nearly $4 million in bribes and kickbacks from people and businesses in exchange for his official acts, and that SILVER masked these payments from public view by disguising the payments as income from what he claimed was a law practice primarily focused on personal injury matters. SILVER was placed under arrest at the FBI in lower Manhattan, this morning, and is scheduled to appear before U.S. Magistrate Judge Frank Maas in Manhattan federal court later today. Judge Maas also issued seizure warrants to prevent SILVER from accessing approximately $3.8 million in proceeds alleged to be traceable to the charged corruption offenses until the case is resolved.

    U.S. Attorney Preet Bharara said: “Over his decades in office, Speaker Silver has amassed titanic political power. But, as alleged, during that same time, Silver also amassed a tremendous personal fortune – through the abuse of that political power. All told, we allege that Silver corruptly collected some $4 million in bribes and kickbacks disguised as ‘referral fees.’ Those disguised bribes and kickbacks account for approximately two-thirds of all of Silver’s outside income since 2002.

    “As today’s charges make clear, the show-me-the-money culture of Albany has been perpetuated and promoted at the very top of the political food chain. And as the charges also show, the greedy art of secret self-reward was practiced with particular cleverness and cynicism by the Speaker himself. Among other things, we allege that Sheldon Silver, Speaker of the New York State Assembly, was on retainer to a mammoth real estate developer at the very same time that the chamber he dominates was considering and passing legislation vitally affecting the bottom line of that developer; at the very same time that he was hearing out lobbyists paid by that developer and at the very same time that he was deliberately keeping secret from the public any information about this lucrative side-deal, in violation of the law.

    “Politicians are supposed to be on the people’s payroll, not on secret retainer to wealthy special interests they do favors for. These charges go to the very core of what ails Albany – a lack of transparency, lack of accountability, and lack of principle joined with an overabundance of greed, cronyism, and self-dealing.”

    FBI Special Agent-in-Charge Richard Frankel said: “As alleged, Silver took advantage of the political pulpit to benefit from unlawful profits. When all was said and done, he amassed nearly $4 million in illegitimate proceeds and arranged for approximately $500,000 in state funds to be used for projects that benefited his personal plans. We hold our elected representatives to the highest standards and expect them to act in the best interest of their constituents. In good faith, we trust they will do so while defending the fundamental tenets of the legal system. But as we are reminded today, those who make the laws don’t have the right to break the laws.”

    According to the allegations contained in the Complaint unsealed today in Manhattan federal court:

    For more than two decades, SHELDON SILVER has served as Speaker of the Assembly, a position that gives him significant power over the operation of New York State government. SILVER used this substantial power – including, in particular, his power over the real estate industry and his control over certain health care funding – to unlawfully enrich himself by soliciting and obtaining client referrals worth millions of dollars from people and entities in exchange for SILVER’s official acts, and attempting to disguise this money as legitimate outside income earned from his work as a private lawyer. In particular, SILVER claimed on financial disclosure forms required to be filed with New York State and in public statements that the millions of dollars he received in outside income while also serving as Speaker of the Assembly came from a Manhattan-based law firm, Weitz & Luxenberg P.C., where SILVER claimed to work “representing individual clients” in “personal injury actions.” These claims were materially false and misleading – and made to cover up unlawful payments SILVER received solely due to his power and influence as an elected legislator and the Speaker of the Assembly.

    The scheme provided SILVER with two different streams of unlawful income: (i) approximately $700,000 in kickbacks SILVER received by steering two real estate developers with business before the state legislature to a law firm run by a co-conspirator, and (ii) more than $3 million in asbestos client referral fees SILVER received by, among other official acts, awarding $500,000 in state grants to a university research center of a physician who referred patients made ill by asbestos to SILVER at Weitz & Luxenberg.

    Unlawful Income From the Real Estate Law Firm

    SILVER entered into a corrupt relationship with a co-conspirator (“CC-1”) who had been SILVER’s counsel in the Assembly and operated a real estate law firm (the “Real Estate Law Firm”) that specialized in making applications to the City of New York to reduce taxes assessed on properties.

    Beginning in at least 2000, SILVER approached two prominent developers of properties in Manhattan, one personally and one in part through a lobbyist, and asked the developers to hire the Real Estate Law Firm. The developers – both of whom lobbied SILVER on real estate issues because their profits depended significantly on state legislation favorable to their business– agreed to use the Real Estate Law Firm as SILVER had requested. Over the years, these developers paid millions of dollars in legal fees to the Real Estate Law Firm. SILVER received a cut from the legal fees amounting to nearly $700,000. SILVER had no public affiliation with the Real Estate Law Firm and performed no legal work at all to earn those fees, which were simply payments for SILVER having arranged the business through his official power and influence.

    While continuing to receive the fees and in furtherance of the scheme, SILVER took official action beneficial to the developers. For example, while SILVER was publicly associated with advocating for tenants, a proposal made by the one of the developers who sent work to the Real Estate Law Firm was in substantial part enacted in real estate legislation in 2011 with SILVER’s support.

    Unlawful Income From Asbestos Client Referrals

    SILVER also entered into a corrupt arrangement with a leading physician who specialized in the treatment of asbestos-related diseases (“Doctor-1”) through which SILVER issued state grants and otherwise used his official position to provide favors to Doctor-1 so that Doctor-1 would refer and continue to refer his patients to SILVER at Weitz & Luxenberg, a firm with which SILVER was affiliated as counsel. Specifically, SILVER arranged for the State of New York to fund two state grants – each for $250,000, and paid out of a secret and unitemized pool of funds controlled entirely by SILVER – for a research center Doctor-1 had established. SILVER used his official position to provide Doctor-1 with other benefits as well, including helping to direct $25,000 in state funds to a not-for-profit organization for which one of Doctor-1’s family members served on the board, and asking the CEO of a second not-for-profit to hire a second family member of Doctor-1.

    From 2002 to the present, SILVER received more than $3 million from legal fees Weitz & Luxenberg received from patients Doctor-1 had referred to SILVER at the firm while SILVER was taking official actions to benefit Doctor-1. SILVER did no legal work whatsoever on these asbestos cases, his sole role having been to use his official position and access to state funds to induce Doctor-1 to provide him with these lucrative referrals.

    Silver’s Efforts to Cover Up the Scheme

    SILVER took various efforts to disguise his unlawful outside income and prevent the detection of the scheme. SILVER listed on his official public disclosure forms that his outside income consisted of “limited practice of law in the principal subject area of personal injury claims on behalf of individual clients,” which was false and misleading. Beginning in 2010, SILVER’s disclosures changed to state that the source of his legal income was a “Law Practice” that “includ[ed]” being of counsel to Weitz & Luxenberg. SILVER never disclosed his relationship with the Real Estate Law Firm or any work beyond what he claimed was a “personal injury” practice.

    SILVER also repeatedly made false statements about his outside income in his public statements, including the following:

    • SILVER claimed he performed legal work consisting of spending several hours each week evaluating legal matters brought to him by potential clients and then referring cases that appeared to have merit to lawyers at Weitz & Luxenberg. In fact, SILVER did no such work on the asbestos cases and obtained those referrals to Weitz & Luxenberg based on his corrupt arrangement with Doctor-1.
    • SILVER claimed his law practice involved the representation of “plain, ordinary simple people.” In fact, SILVER represented some of the largest real estate developers in the State of New York, whose interests are in many ways dependent on state legislation.
    • SILVER claimed through his spokesperson that SILVER found clients by virtue of his having been a “lawyer for more than 40 years,” in a manner that was “not unlike any other attorney in this state, anywhere.” In fact, SILVER found his lucrative asbestos and real estate developer clients solely by virtue of his official position.
    • SILVER recently stated through his spokesperson that “[n]one of his clients have any business before the state.” In fact, SILVER’s outside income included millions of dollars of fees obtained through real estate developers with significant business before the state and a prominent physician to whose benefit SILVER provided state funding and other benefits related to SILVER’s official position.

    Finally, SILVER thwarted the Moreland Commission to Investigate Public Corruption so that it would not learn of his illegal outside income, first by filing legal motions on behalf of the Assembly and taking other action to block the Moreland Commission’s investigation into legislative outside income and then by negotiating with the Governor of New York to prematurely terminate the Moreland Commission.

    *                      *                      *

    SILVER, 70, of New York, New York, is charged with two counts of honest services fraud, one count of conspiracy to commit honest services fraud, one count of extortion under color of official right, and one count of conspiracy to commit extortion under color of official right. Each of these five counts carries a maximum penalty of 20 years in prison. The maximum potential sentences in this case are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by a judge.

    U.S. Attorney Bharara praised the work of the Criminal Investigators of the United States Attorney’s Office and the FBI, who jointly conducted this investigation. Mr. Bharara also noted that the investigation is continuing.

    This case is being prosecuted by the Office’s Public Corruption Unit. Assistant U.S. Attorneys Howard S. Master, Carrie H. Cohen, Andrew D. Goldstein, and James McDonald are in charge of the prosecution.

    The charges contained in the Complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.


    U.S. v. Sheldon Silver Complaint(PDF)

    U.S. v. Sheldon Silver Seizure Affidavit(PDF)


  • 15 Aug 2014 2:40 PM | Anonymous member (Administrator)

    NJ “Ban-the-Box Law” Update

    The Opportunity to Compete Act (“Act”), more often called the “Ban the Box” law will become effective March 1, 2015 in New Jersey. The Act will prohibit employers with 15 or more employees from having any questions inquiring about an applicant’s criminal convictions on job applications. Employers also may not ask applicants about criminal convictions until after the first interview is completed.

    The law defines an applicant as any person inquiring about employment or a job vacancy and includes a current employee. That means that if a current employee is seeking a promotion or posting for a vacant position, the employer cannot ask about criminal convictions until after a first interview for the position. If an applicant voluntarily discloses information about a criminal history prior to the completion of the first interview, the employer is permitted to ask for details about the applicant’s criminal history.

    Employers may still refuse to hire applicants who either refuse to consent to the criminal background check or who have certain criminal convictions. The law does not set forth specific time limits for how far back an employer can consider a conviction or which convictions may be considered, except that any records expunged or pardoned may never be considered by the employer. 

    This new law preempts the Newark Ban the Box Ordinance, which has much more onerous requirements for employers who use criminal convictions in deciding not to hire certain individuals. Newark employers will no longer have to provide applicants formal documentation of the consideration given to certain factors nor provide an appeal process. All employers should, however, continue to make sure that they are using the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance for the use of criminal background checks to determine if a conviction is job-disqualifying.

    The law explicitly states that there is no private cause of action, but enforcement is solely by the Division of Labor and Workforce Development. There are provisions for civil penalties of up to $10,000 per violation.

    ISPLA thanks Fox Rothschild for this important New Jersey labor and employment law update.

    Bruce Hulme, ISPLA Director of Government Affairs

    Your Proactive Voice from State Capitols to the Naion’s Capitol

  • 23 Jan 2014 8:56 PM | Anonymous member (Administrator)

    ISPLA is grateful to Stateline, a nonpartisan, nonprofit news service of Pew Charitable Trust that provides daily reporting and analysis in state policy, for allowing us to publish their article below by staff writer David C. Vock

    Nearly a decade after Congress passed the Real ID Act to thwart terrorists from getting driver’s licenses, the law will finally go into effect in April. But 13 states still are not ready.

    The U.S. Department of Homeland Security repeatedly put off enforcement of the law, as states complained about its costs and civil rights groups objected to it as an invasion of privacy. But in December, while DHS was temporarily headed by counterterrorism expert Rand Beers, the agency unveiled a gradual rollout for enforcing the law.

    Brian Zimmer, president of the Coalition for a Secure Driver’s License, which supports Real ID, praised the agency for its “deliberate approach.” The slow ramp-up will give the agency time to address practical problems and avoid technical or training snafus before the requirements affect the general public, he said.

    “Nobody has ever done this before… so enforcing this law is going to be a major challenge,” said Zimmer, who helped draft the law’s provisions on driver’s licenses as a congressional committee staffer.

    But Chris Calabrese, a lawyer for the American Civil Liberties Union, said the new timetable will do little to convince holdout states to comply with the law.

    “Nothing has changed,” he said. “It is impossible to imagine DHS keeping the citizens of any of those states off of airplanes…I don’t see that most of these states are going to have a whole lot more incentive than they have ever had to do this, which is to say, none.”

    Alaska, Arizona, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Oklahoma and Washington state do not currently meet the law’s standards, according to DHS.

    Another 15 states do not yet meet the requirements but have asked the federal government for more time to do so. They all have extensions through October and can renew those extensions.

    Soon after Real ID became law, 17 states passed laws restricting or banning its implementation within their borders, according to the National Conference of State Legislatures. Liberals and conservatives alike recoiled at the law in its early years. They objected to the law's costs, federal pre-emption of state practices and the potential threat to personal privacy.

    But two of those statesundefinedGeorgia and Utahundefinednow issue Real ID-compliant licenses. Seven more are among those granted extensions to comply with the law.

    The controversy over Real ID faded in most state capitols as DHS repeatedly delayed enforcement. Technically, the law does not impose new rules on states. But by requiring Real ID-compliant licenses to board commercial aircraft, the law could put a lot of public pressure on states to issue licenses that meet its standards.

    Slow Rollout

    In the final report it issued in July 2004, the 9/11 Commission recommended that states improve driver’s license security, because four of the 19 hijackers in the terrorist attacks used state-issued driver's licenses to board the planes they later crashed.

    The Real ID Act, which President George W. Bush signed into law in May 2005, requires states to verify that an applicant is in the country legally, using federal databases and original documents such as birth certificates and Social Security cards. It also imposes security measures for workers who handle driver’s license information or who produce the physical documents.

    The federal government has delayed enforcement of Real ID four times since it was originally supposed to go into effect in May 2008.

    As those deadlines neared, the law’s proponents raised the specter of residents in noncompliant states not being able to board flights with their state-issued identification. New Mexico Gov. Susana Martinez, a Republican, often cited that as a reason to bar unauthorized immigrants from getting driver’s licenses there.

    The federal government’s new open-ended schedule would put off that type of widespread enforcement until the waning days of the Obama administrationundefinedat the earliest.

    The consequences for residents living in holdout states will be minimal, at least at first. They will have to present alternate forms of identification (such as a passport) to get into Washington, D.C. headquarters of DHS, nuclear power plants and restricted federal facilities.

    But sometime after 2016, they will no longer be able to board commercial aircraft with only their driver’s license.

    Gradual Compliance

    The federal government relies on information from states to determine whether they comply with 43 requirements under Real ID. In a statement, the agency said states’ progress so far shows that the law’s requirements are achievable.

    Vermont first started issuing Real ID-compliant licenses at the beginning of this year. Michael Charter from the Vermont Department of Motor Vehicles said his agency gradually put in place more and more security measures over the years to comply.

    “It’s been easier to accomplish than we initially thought it might be. There really hasn’t been tremendous backlash from the public up to this point,” he said.

    The state had to add facial-recognition technology to the computers that store photos from driver’s licenses. The software alerts workers if a new photo matches one that is already in the database for a different person. DMV employees follow up on the potential matches to determine whether there is any fraud.

    The state also had to change how it screens and trains workers who handle driver’s license data, Charter said. The agency lets police and prosecutors use the data, but only if they submit requests to the agency with documentation of ongoing investigations. DMV workers run the actual queries.

    The biggest change to the physical ID cards is for unauthorized immigrants. Vermont has always required driver’s license holders to show they are in the country legally, but the legislature decided last year to grant driving privileges to undocumented immigrants.

    So Vermont lawmakers decided to issue two forms of cards: the typical driver’s license and a separate driving privilege card for the immigrants. The second card states that the ID is not valid for federal identification or official purposes, so that the state would meet the requirements of Real ID.

    In fact, all nine states that passed laws allowing unauthorized immigrants to drive last year specified that cards for those immigrants must have marks to distinguish them from licenses for people in the country legally, according to the National Immigration Law Forum.

    Before last year, only three states allowed unauthorized immigrants to drive, and only one of themundefinedUtahundefinedincluded physical distinctions for the immigrants’ licenses. New Mexico and Washington still do not.

    Remaining Obstacles

    Many technical, legal and philosophical obstacles remain for states that have not complied with Real ID.

    For many, meeting the law’s requirement that states secure the locations where driver’s licenses are produced can be challenging. Many states, such as Tennessee, now issue licenses from a single, secure location. That means applicants get their licenses in the mail, rather than at a state office.

    The law’s many security provisions have prompted states such as California and Texas to consolidate facilities where residents can get driver’s licenses, said Zimmer, from the Coalition for a Secure Driver’s License.

    A legal challenge doomed New Jersey’s TRU-ID program in 2012. The ACLU sued to block the state’s rollout of Real ID-compliant licenses, because, the group said, the state did not follow state law for getting public feedback before putting its new license rules into effect. New Jersey officials said they would include the public if they try to roll out similar changes in the future.

    Ohio officials decided last year to stop work on Real ID compliance, because of privacy concerns. They were especially concerned about storing digital copies of sensitive documents and about the use of facial recognition technology, according to The Columbus Dispatch.

    The state’s facial recognition technology generated controversy last year, when it came to light that as many as 26,500 people could access the state’s database of driver’s license photos, far more than in other states. 



  • 20 Nov 2013 2:49 PM | Anonymous member (Administrator)

    ISPLA is grateful to Stateline, the Daily News Service of The Pew Charitable Trust and its staff writer Maggie Clark for this informative article below on license plate readers and emerging privacy issues....

    Police have used cameras that read the license plates on passing cars to locate missing people in California, murderers in Georgia and hit-and-run drivers in Missouri.

    The book-sized license plate readers (LPRs) are mounted on police cars, road signs or traffic lights. The images they capture are translated into computer-readable text and compiled into a list of plate numbers, which can run into the millions. Then police compare the numbers against the license plates of stolen cars, drivers wanted on bench warrants or people involved in missing person cases.

    Privacy advocates don’t object to police using LPRs to catch criminals. But they are concerned about how long police keep the numbers if the plates don’t register an initial hit. In many places there are no limits, so police departments keep the pictures with the date, time, and location of the car indefinitely.

    The backlash against LPRs began in earnest this year, as three more states limited law enforcement use of the systems and in some cases banned private companies from using the systems, for example, to track down cars for repossession. So far, five states limit how the cameras are used, and the American Civil Liberties Union anticipates that at least six other states will debate limits in the upcoming legislative session.

    In New Hampshire, police and private companies (with the exception of the tolling company EZ Pass) are forbidden from using license plate readers. Utah requires police to delete license plate data nine months after collection. In Vermont, the limit is 18 months and in Maine it is three weeks. Arkansas police have to throw out the plate numbers after 150 days and parking facilities are the only private companies allowed to use the technology. 

    “It’s been surprising to find out how license plate readers are being used and how long the data is being kept,” said Michigan state Rep. Sam Singh, a Democrat, who is sponsoring legislation to limit police in his state from keeping license plate numbers for longer than 48 hours. Police are using the cameras in a handful of Michigan cities, including Detroit and East Lansing.

    Singh’s legislation would also make the license plate data exempt from public records requests so that, for example, divorce attorneys couldn’t request license plate reader data to confirm where a spouse was at a particular time. The bill, which is still in committee, also would limit how private companies can use license plate readers to track down cars for repossession. 

    “We just fundamentally believe that Americans don’t need to be watched unless there’s probable cause of wrongdoing,” said Shelli Weisberg, legislative director for the Michigan ACLU, which supports Singh’s bill.   “We don’t need a ‘just in case’ database. That just turns democracy and our sense of due process on its head.”

    NSA Fallout

    The debate over license plate readers and other law-enforcement technologies is a local expression of a national wariness about government spying in the wake of revelations about the National Security Agency’s far-reaching data collection on ordinary citizens across the world.

    “People are saying, ‘I can’t control the NSA, but I can rein in what local law enforcement agencies are collecting,’” said Allie Bohm, an advocacy and policy strategist at the ACLU. Last July, the ACLU released a report warning about the lack of policies for license plate reader programs. The group also has promoted model legislation to limit how long police can keep license plate data.

    For proponents of the technology, the timing of the NSA leaks couldn’t have been worse. “I would hate to see that because of bad timing, a great technology is banned or didn’t rise to the level it could have,” said Todd Hodnett, the founder and chairman of Digital Recognition Network, a license plate reader manufacturer which sells the cameras to private companies, including towing firms, banks and insurance companies. An LPR system, which typically includes four cameras, costs between $15,000 and $18,000.

    Lumping license plate readers in with the NSA surveillance system creates a false equivalency, according to Hodnett. “The NSA revelations have created an environment that has people on edge, but it’s unfortunate and quite scary that someone could compare listening to a phone call to photographing a publicly visible license plate,” he said.

    Hodnett also argued the focus on data limits is misplaced, because matching a license plate to a person’s DMV records or driver’s license record is a two-step process governed by the Driver’s Privacy Protection Act passed by Congress in 1994. When law enforcement officers want to make a query of DMV records using a license plate number, they have to show a “permissible purpose,” which includes public safety, motor vehicle theft, court proceedings or notifying owners of towed or impounded vehicles.

    Until a license plate number is matched to DMV data, it’s as anonymous to officers as it is to a person standing on a street corner. That two-step process is what keeps the technology from infringing on privacy, said Robert Stevenson, the executive director of the Michigan Association of Chiefs of Police and the retired police chief of Livonia, Mich.

    “There’s an additional step that has to be taken to find out who the drivers are,” said Stevenson. “People’s pictures and names don’t just pop up when they drive past license plate readers.”

    The U.S. Supreme Court and multiple federal courts have affirmed there is no expectation of privacy for a publicly visible license plate. Hodnett is building a case to argue that prohibiting license plate readers from taking photographs of publicly visible license plates is a violation of the First Amendment.

    Tracking the Marathon Bombers

    In the hunt for the Boston Marathon bombers, police used license plate reader data to establish where the Tsarnaev brothers had traveled and where they might be headed, based on places they’d already been. Police used license plate readers to track Dzokhar Tsarnaev to Watertown, Mass., where police found him hiding in a boat in a resident’s backyard.

    Even though LPR data was used in that investigation, Watertown’s state representative is pursuing legislation to limit license plate readers. Under Democratic Rep. Jonathan Hecht’s legislation, police would be required to delete license plates collected after 48 hours, but they could hang on to data longer if it was specifically part of a criminal investigation, like the search for Tsarnaev.

    “Public safety is very important and we want to use new this technology for safety,” said Hecht. “But as has been true throughout our history, public safety has to be balanced against other important privacy values. In wake of the revelations about the NSA, people are concerned that we’re letting technology get away from us.”


  • 23 Aug 2012 2:53 PM | Anonymous member (Administrator)
    An August 22 item in SLATE by Ryan Gallager titled "Criminals May Be Using Covert Mobil Phone Surveillance Tech for Extortion" regarding IMSI Catchers may be of interest to investiigative and security professionals. The Slate piece contains links to a number of U.S. and foreign items. Some of the pertinent facts are noted below it.  
    “It sends out a signal that is basically like the one coming from a cellular phone base station, which is why a mobile phone would voluntarily connect to it. If someone uses the device wisely and carefully, and does not stay in one place for too long, it is practically impossible to catch them.”
    IMSI catchers are advanced pieces of hardware that can be used to send out a signal, tricking mobile phones into thinking they are part of a legitimate mobile phone network. The most sophisticated IMSI catchers, such as the one known to have been purchased by London’s Metropolitan Police, allow authorities to shut off targeted phones remotely and gather data about thousands of users in a specific area. They can force phones to release their unique IMSI and IMEI identity codes, which can then be used to track a person's movements in real time.
    The use of the technology by policeundefinedlet alone criminalsundefinedis controversial. Recently, some argued that the FBI’s use of an IMSI catcher known as a “Stingray” was unconstitutional under the Fourth Amendment, which prohibits unreasonable searches and seizures. Until November last year, the Department of Justice had claimed the use of a Stingray did not constitute a search. However, the DoJ suddenly changed tack during an Arizona court case, a move the Wall Street Journal reported was “designed to protect the secrecy of the gadgets.”
    In the Czech Republic such devices are known as "Agitas. The former head of the Czech Military Intelligence Agency and a security analyst Andor Šándor underscored the danger of the widespread sale of Agátas:
    "It’s been a known fact for a few years now that some companies do sell these devices. But if their use will not be in any way regulated, and access to these devices will not be in any way controlled, then a regular citizen can do absolutely nothing. The only way people can safeguard themselves is if they reveal only the necessary information during their mobile communication. But, obviously that goes against normal behavior of free persons."
    Jan Valos, a radio frequency engineer and hacker explains how an IMSI Catcher works once it is connected to a computer:
    “It sends out a signal that is basically like the one coming from a cellular phone base station, which is why a mobile phone would voluntarily connect to it. If someone uses the device wisely and carefully, and does not stay in one place for too long, it is practically impossible to catch them.”
    Bruce Hulme
    ISPLA Director of Government Affairs
    Resource to Investigative and Security Professionals, to the Government, and to the Media
  • 17 Aug 2012 2:55 PM | Anonymous member (Administrator)
    An FDCPA amicus brief filed in the U.S. Supreme Court may be of interest to those investigators involved in debt collection cases.

    Question Presented:








    A medical assistant student contended that funds she received were grants rather than student loans in the case of Olivea Marx, Petitioner v. General Recovery Corporation No. 11-1178. A 36-page brief by the government asserts that allowing Courts to fix costs against good-faith FDCPA plaintiffs would subvert the balance struck by Congress between encouraging private enforcement and deterring abusive suits. The Court had awarded costs to the collection agency. The Federal Trade Commission joined in the action as indicated in their release below.

    FTC Joins Amicus Brief Opposing Federal Court Finding On Consumers' Rights Under the Fair Debt Collection Practices Act

    The Federal Trade Commission, the Department of Justice, and the Consumer Financial Protection Bureau filed a joint amicus brief in the U.S. Supreme Court supporting consumers' ability to protect their rights under the Fair Debt Collection Practices Act by suing debt collectors.
    The amicus brief urges the Supreme Court to overturn a decision of the U.S. Court of Appeals for the Tenth Circuit.  In this case, a consumer, Olivea Marx, sued a debt collector, General Revenue Corporation, that had contacted her employer to obtain information about her employment status.  Marx believed that the debt collector’s conduct had violated the Fair Debt Collection Practices Act, but she lost the case.  The Tenth Circuit ruled that Marx was responsible for paying more than $4,500 to cover the debt collector’s litigation costs, even though she had brought the case in good faith.
    The amicus brief argues that the Tenth Circuit’s decision was inconsistent with the terms of the Fair Debt Collection Practices Act, which specifies that consumers who win lawsuits against debt collectors may recover their litigation costs from the defendants, but that consumers who lose these cases must pay defendants’ litigation costs only if the consumers sued in bad faith or for purposes of harassment.  The amicus brief also argues that these provisions of the Act advance Congress’ intent to help consumers deter abusive debt collection practices by bringing private enforcement actions in good faith.  By contrast, the Tenth Circuit’s ruling would create a disincentive to the prosecution of private enforcement actions, the brief states.  
    Bruce Hulme
    ISPLA Director of Government Affairs
    Your Proactive Voice from State Capitols to the Nation's Capitol
  • 25 Nov 2011 6:37 PM | Anonymous member (Administrator)

    HR 822, the National Right-to-Carry Reciprocity Act of 2011-STRONGLY SUPPORTED By ISPLA!!!

    Sec. 926D. Reciprocity for the carrying of certain concealed firearms

    (a) Notwithstanding any provision of the law of any State or political subdivision thereof (except as provided in subsection (b)), a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, and who is carrying a valid identification document containing a photograph of the person, and a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm, may possess or carry a concealed handgun (other than a machinegun or destructive device) that has been shipped or transported in interstate or foreign commerce, in any State, other than the State of residence of the person, that--

    (1) has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms; or

    (2) does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.

    (b) The possession or carrying of a concealed handgun in a State under this section shall be subject to the same conditions and limitations, except as to eligibility to possess or carry, imposed by or under Federal or State law or the law of a political subdivision of a State, that apply to the possession or carrying of a concealed handgun by residents of the State or political subdivision who are licensed by the State or political subdivision to do so, or not prohibited by the State from doing so.

    (c) In subsection (a), the term `identification document' means a document made or issued by or under the authority of the United States Government, a State, or a political subdivision of a State which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals



    In a 2008 opinion striking down Washington D.C.'s district-wide handgun ban, the U.S. Supreme Court recognized `that the Second Amendment conferred an individual right to keep and bear arms' that stems in large part from the right to protect oneself, as well as `one's home and family,' from harm. See District of Columbia v. Heller, 554

    U.S. 570 (2008). Specifically, the Heller decision found that the right to self defense, as opposed to the creation of a militia or other principles, `was the central component of the right itself.' 599 (emphasis in original). More recently, in McDonald v. City of Chicago, 561 U.S. XX, 130 S.Ct. 3020 (2010), the Supreme Court clarified that the Second Amendment rights discussed in Heller also extend to the states.

    Forty-nine states currently permit concealed carry in some manner. Thirty-five states have `shall issue' permit laws, which generally require states to issue a concealed carry permit or license to people who meet the legal requirements. Ten states--plus the Virgin Islands, Puerto Rico, and

    Guam--have `may issue' or discretionary permit laws that are administered in varying ways. Four states--Vermont, Arizona, Alaska, and Wyoming--permit the carrying of a concealed weapon without any permit or license (although Arizona, Alaska, and Wyomingalso have a permitting process in place). Illinois, the District of Columbia, the Northern Marianas Islands, and American Samoaprohibit concealed carry.

    Twenty-five states allow non-residents to apply for a concealed carry permit or license, and

    Vermontallows non-residents to carry without a permit while in the state. In most instances, the process for permitting in-state and out-of-state persons is the same. However, some states apply a stricter permitting process to out-of-state residents, including requiring that the person have a valid concealed carry permit from their home state.

    A majority of states currently extend reciprocal concealed carry privileges to varying degrees to the residents of other states. Fourteen states grant outright recognition of all valid permits issued by another state. Ten states automatically recognize permits from other states that also recognize their permits. Sixteen states will recognize another state's concealed carry permit if certain conditions are met. Only ten states do not recognize a concealed carry permit issued by another state in any circumstance, although many of these states do allow non-residents to apply for permits to carry a concealed handgun in the state.

    Under current Federal law, certain active-duty and retired law enforcement officers are permitted to carry concealed firearms across state lines, even while off duty.


    While there is disagreement over the benefits of carrying concealed weapons, many believe that robust concealed carry laws ultimately deter crime by making criminal acts much more risky and costly for potential law breakers. Statistics show a connection between concealed carry laws and a decrease in violent crime rates. The National Rifle Association estimates, based on data from the FBI's Annual Uniform Crime Report, that `right-to-carry' states (i.e., those that widely allow concealed carry) have 22 percent lower total violent crime rates, 30 percent lower murder rates, 46 percent lower robbery rates, and 12 percent lower aggravated assault rates, as compared to the rest of the country. 

    A study of the effect of concealed carry laws on crime rates, published in 1997, estimated that `[w]hen state concealed handgun laws went into effect in a county, murders fell by 7.65 percent, and rapes and aggravated assaults fell by 5 and 7 percent.'


    H.R. 822 would allow persons with valid state-issued concealed firearm permits or licenses to carry a concealed firearm in all other states that also issue concealed firearm permits or licenses, or in any other state that does not generally prohibit the carrying of concealed firearms. This legislation would not create a national licensing scheme, but rather would require states that currently permit people to carry concealed firearms to recognize other states' valid concealed carry permits.

    H.R. 822, as clarified by the substitute manager's amendment, does not affect a state's ability to set eligibility requirements for its own residents. The bill instead makes clear that a person cannot use this Federal grant of reciprocity to carry a concealed weapon in his or her own state of residence under another state's permit or license, unless their own state's laws permit this. H.R. 822 also does not impact state laws governing how concealed firearms are possessed or carried within the various states. All state, federal, and local laws regarding the possession and carrying of a concealed handgun that would apply to a resident of a state will also apply in equal force to a non-resident. A non-resident who is able to show both a valid identification document and a valid concealed carry permit or license will be permitted to carry a concealed firearm in the same manner as a resident holding a general-use permit or license.

    H.R. 822 addresses concerns regarding law enforcement's ability to confirm the validity of an out-of-state concealed carry permit by requiring that a person show both a valid government-issued identification document, such as a license or passport, and a valid concealed carry license or permit. The states are also currently able to verify the validity of out-of-state concealed permits. The Nlets system, formerly the National Law Enforcement Teletype System, permits federal, state, and local law enforcement to query handgun permit information for 12 states that have elected to participate in the program. Law enforcement can also use Nlets to send inquiries regarding concealed carry permits directly to out-of-state agencies that issue permits but do not participate in the Nlets concealed carry program. Forty states currently grant some form of reciprocity for out-of-state concealed carry permits and all of the states are subject to the Firearms Owners` Protection Act's Safe Passage Provision, codified at 18 U.S.C. Sec. 926A, which provides a process by which non-residents can transport lawful firearms through states where they could not otherwise carry the firearm. Accordingly, law enforcement is already very familiar with handling and verifying firearms carried by non-residents.


    The Committee's Subcommittee on Crime, Terrorism, and Homeland Security held 1 day of hearings on H.R. 822 on September 13, 2011. Testimony was received from Joyce Lee Malcolm, Professor, George Mason University School of Law; David Kopel, Research Director, Independence Institute and Adjunct Professor, Denver University Sturm College of Law; and Philadelphia Police Commissioner Charles Ramsey, with additional material submitted by the International Association of Chiefs of Police, Mayors Against Illegal Guns, the Minnesota Chiefs of Police, and the Virginia Association of Chiefs of Police.



    H.R. 822, the `National Right-to-Carry Reciprocity Act of 2011,' is a dangerous bill that would override the laws of almost every state by obliging each to accept concealed handgun carry permits from every other state, even if the permit holder would not be allowed to carry or even possess a handgun in the state where he or she is traveling. The law tramples federalism and endangers public safety.

    The harmful impact of this legislation is without doubt. For example, some states require an individual to show that he or she knows how to use a firearm or meet minimum training standards before obtaining a concealed carry license. Under H.R. 822, however, these states would be forced to allow out-of-state visitors to carry concealed weapons even if they do not meet that state's concealed licensing standards concerning basic gun safety or training requirements. During consideration of the bill, numerous amendments were offered by the Minority to address these serious flaws, but none were adopted. Members of the Majority blocked amendments to preserve the application of state laws concerning eligibility to carry concealed weapons within their borders, as well as other amendments that would have allowed states to prevent concealed carrying of handguns by those with out of state permits with convictions for offenses such as misdemeanor assault on police officers and misdemeanor sex offenses against children.

    Recognizing the danger that it would pose to our citizens and to law enforcement officers across this country, this bill is opposed by more than 550 mayors (represented by Mayors Against Illegal Guns),  major police organizations, domestic violence abuse victim advocates, prosecutors, and faith-based organizations.

    Police groups opposing the bill included the International Association of Chiefs of Police; Major Cities Chiefs Association; the Police Foundation, National Latino Peace Officers Association; and National Organization of Black Law Enforcement Executives. Among the state and local police organizations and individuals opposing the bill are the California Police Chiefs Association; the Colorado Association of Chiefs of Police; Colorado Springs Police Chief Richard Myers; Boston Police Commissioner Edward Davis; Las Vegas Metropolitan Police Department Sheriff Douglas Gillespie; the Virginia Association of Chiefs of Police; Minneapolis Chief of Police Timothy Dolan; Duluth Police Chief Gordon Ramsay; Burlington North Carolina Chief of Police Michael Williams; New York City Police Commissioner Raymond W. Kelly; and Portland Maine Chief of Police James E. Craig. Domestic violence abuse victims’ advocates oppose this bill, including the National Network to End Domestic Violence (a coalition of 56 domestic violence victim advocacy groups) and the Minnesota Domestic Abuse Project. Prosecutors opposing the bill, include the Association of Prosecuting Attorneys; the American Bar Association; Minneapolis Office of the City Attorney Susan Segal; Bronx County (NY) District Attorney Robert Johnson; Kings County (NY) District Attorney Charles Hynes; Queens County (NY) District Attorney Richard A. Brown; Richmond County (NY) District Attorney Daniel Donovan, Jr.; New York's Special Narcotics Prosecutor Bridget G. Brennan; New York County (NY) District Attorney Robert Morris Morgenthau; New Jersey Attorney General Anne Milgram; Delaware Acting Attorney General Richard Gebelein; Iowa Attorney General Tom Miller; Illinois Attorney General Lisa Madigan; Colorado Association of Chiefs of Police; Broomfield (CO) Police Chief Thomas Deland; Colorado Springs (CO) Police Chief Richard Myers; and Wheat Ridge (CO) Police Chief Daniel G. Brennan. Faith-based organizations opposing the bill include Faiths United, a coalition of more than 30 religious organizations. Our Lives, Our Laws: People Who Care,]

    For these reasons, and those stated below, we urge our colleagues to oppose this seriously flawed legislation and respectfully dissent.


    H.R. 822 disregards state laws by forcing states to allow the carrying of loaded, concealed weapons by any individual permitted to carry concealed weapons in another state. Section 2 of H.R. 822, as amended by the Committee, sets forth the bill's operative provisions and makes clear that the intent of this legislation is to override the will of the states with regard to who may carry concealed handguns within their borders. It provides that an individual who is not prohibited by federal law from possessing firearms and who is carrying a valid identification document containing a photograph of such individual and a valid concealed carry permit issued by a state, may carry a concealed handgun in another state if the other state has a statute that allows the issuance of concealed carry permits or does not prohibit the carrying of concealed firearms. Section 2(b) provides that an individual carrying a concealed handgun in a state must be permitted to carry the gun subject to `the same conditions and limitations, except as to eligibility to possess or carry,' imposed by federal, state or local law that apply to the possession or carrying of a concealed handgun by residents of that state.

    In effect, the bill would reduce all states to the lowest common denominator of concealed carry laws, and would subject citizens to unnecessary public safety risks, contrary to the judgments made by the individual states. As Philadelphia Police Commissioner Charles Ramsey stated, `We have a uniquely diverse nation. What works where I currently serve as Commissioner in Philadelphia, and the Commonwealth of Pennsylvania, does not work for our neighbor across the river in

    New Jersey. Our laws for obtaining a permit are vastly different, based on well-debated decisions made at the state level.'

    The Courts have found that States are within their lawful constitutional power to set minimum public safety standards for carrying concealed guns. The Supreme Court has stated that even prohibitions on concealed carrying are permissible. In

    District of Columbiav. Heller, a case in which the Supreme Court held that the District's handgun ban was unconstitutional, Justice Scalia, writing for the majority, specified that the Court's holding did not `cast doubt' on other gun laws and noted that `[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.'  In discussing long-understood limitations on the right to keep and bear arms, Justice Scalia noted that `the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.' 

    The Court thus reaffirmed its ruling in Robertson v. Baldwin that `the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.'

    Since Heller, courts throughout the

    United States have rejected the argument that there is a right to carry concealed guns in public. In Kachalsky v. Cacace, the court upheld New York's restrictions on concealed carry, and stated:

    This emphasis on the Second Amendment's protection of the right to keep and bear arms for the purpose of `self-defense in the home' permeates the Court's decision and forms the basis for its holding--which, despite the Court's broad analysis of the Second Amendment's text and historical underpinnings, is actually quite narrow.

    The language of Heller makes clear that the Court recognized `not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose' but rather a much narrower right--namely the `right of law-abiding, responsible citizens to use arms in defense of hearth and home.


    U.S. v. Masciandaro, the Fourth Circuit rejected the claim that there is a constitutional right to possess a loaded handgun in a car in a national park. The court explained, `This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.'

    The Fourth Circuit cautioned further that the danger posed by guns `would rise exponentially as one moved the right from the home to the public square. If ever there was an occasion for restraint, this would seem to be it. There is much to be said for a course of simple caution.'

    Many other courts have similarly reached this conclusion. 

    In sum, the courts are in accord that there is no constitutional right to carry loaded guns outside the home, and certainly not to carry concealed guns in public spaces. State laws governing such conduct, directly bearing on questions of public safety, should therefore not be nullified by Congress.

    See, e.g, People v. Aguillar, 944 N.E. 2d 816 (Ill. App. Ct. 2011) (stating `the decisions in Heller and McDonald were limited to interpreting the second amendment's protection of the right to possess handguns in the home, not the right to possess handguns outside the home'); Gonzalez v. Village of W. Milwaukee, No. 09cv0384, 2010 WL 1904977 (E.D. Wis. May 11, 2010) (stating that the `Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home'); United States v. Hart, 725 F. Supp. 2d. 56 (D. Mass. 2010) (`Heller does not hold, nor even suggest, that concealed weapons laws are unconstitutional.'); In re Factor, 2010 WL 1753307 (N.J. Super. Ct. App. Div. Apr. 21, 2010) (stating that the `United States Supreme Court has not held or even implied that the Second Amendment prohibits laws that restrict carrying of concealed weapons'); Dorr v. Weber, 2010 WL 1976743 (N.D. Iowa, May 18, 2010) (stating that a `right to carry a concealed weapon under the Second Amendment has not been recognized to date'); Teng v. Town of Kensington, No. 09cv8jl, 2010 WL 596526 (D.N.H. Feb. 17, 2010) (`Given that Heller refers to outright `prohibition on carrying concealed weapons' as `presumptively lawful,' far lesser restrictions of the sort imposed here clearly do not violate the Second Amendment.'); United States v. Tooley, 717 F. Supp. 2d 580 (S.D.W.Va. 2010) (`Additionally, possession of a firearm outside of the home or for purposes other than self-defense in the home are not within the `core' of the Second Amendment right as defined by Heller.'); Riddick v. United States, 995 A.2d 212 (D.C. 2010) (stating that Second Amendment does not `compel the District to license a resident to carry and possess a handgun outside the confines of his home, however broadly defined'); State v. Knight, 218 P.3d 1177 (Kan. Ct. App. 2009) (`It is clear that the [Heller] Court was drawing a narrow line regarding the violations related solely to use of a handgun in the home for self-defense purposes. [The defendant's] argument, that Heller conferred on an individual the right to carry a concealed firearm, is unpersuasive.').



    A. ÌH.R. 822 Would

    Override StateLaws Regarding Who Is Eligible To Carry A Concealed, Loaded Gun

    H.R.822 eviscerates the authority of states to set their own eligibility standards for who may carry a concealed, loaded gun in public. State officials, law enforcement, and legislators are in the best position to decide crime-fighting policies for their respective jurisdictions. For example, rural areas may not fit the needs of big cities and vice-versa.

    States often set standards for carrying handguns on city streets that include criteria that exceed the requirement that an applicant pass a federal background check. For instance, many states, including those with strong gun rights traditions, have enacted laws that prohibit concealed handgun carrying by certain categories of individuals. These include teenagers, alcohol abusers, and individuals who pose a danger to others, or those who have not completed basic safety training. Some states also include individuals who have been convicted of certain violent misdemeanors, providing an even greater degree of protection than the prohibition in Federal law against gun possession by felons. 

    The following identifies the various state requirements on applicants for concealed carry permits:

    Thirty-five states require gun safety training, of which require live fire drills or other proof of competency with a firearm. The following states require training: Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Maine, Michigan, Minnesota, Missouri, Montana, North Carolina, Nebraska, New Jersey, New Mexico, Nevada, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Wisconsin, West Virginia, and

    Wyoming. In addition, Virginia and Maryland explicitly state that internet-based training can satisfy their requirement and North Dakotarequires certain permittees only to pass an open book exam to satisfy its requirement.

    The following states require live fire training: Arkansas, Delaware, Hawaii, Kansas, Kentucky, Michigan, Minnesota, Missouri, North Carolina, New Jersey, New Mexico, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, and West Virginia.

    Thirty-eight states prohibit individuals convicted of certain misdemeanor crimes from carrying concealed firearms, including Pennsylvania, which bars carrying by those who have been convicted of stalking, impersonating a law enforcement officer and other dangerous misdemeanor offenses. Research supports these restrictions. For example, one study found handgun buyers who have been convicted of just one misdemeanor are almost five times as likely to be convicted of a serious violent crime as handgun buyers with no criminal record.

    Garen Wintemute et al., Prior misdemeanor convictions as a risk factor for later violent and firearm-related criminal activity among authorized purchasers of handguns, J. Am. Medical Ass'n 1998, 280:2083-2087.

    Thirty-six states prohibit youths age 20 and under from obtaining a concealed carry permit, including Colorado and


    The following states prohibit carrying by people under the age of 21: Alaska, Arkansas, Arizona, Colorado, Connecticut, Florida,

    Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, North Carolina, Nebraska, New Jersey, New Mexico, Nevada, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.

    Twenty-nine states prohibit alcohol abusers from obtaining a concealed carry permit, including

    South Carolina, which prevents `habitual drunkard[s]' from carrying guns.

    The following states prohibit carrying by alcohol abusers: Alabama, Arkansas, Colorado, Florida,

    Georgia, Hawaii, Iowa, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Mississippi, North Carolina, New Jersey, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming.

    Twenty-four states grant law enforcement agencies discretion to approve or deny carry permits to an applicant who appears to be dangerous, including Alabama, which allows sheriffs to grant or deny licenses based on whether `it appears that the applicant . . . has any . . . proper reason for carrying a pistol, and [whether] he or she is a suitable person to be so licensed.

     Ten states grant broad discretion to approve or deny concealed carry permits (Alabama, California, Connecticut, Delaware, Hawaii, Massachusetts, Maryland, New Jersey, New York, and Rhode Island); 14 states granted limited discretion to do so (Arkansas, Colorado, Iowa, Indiana, Maine, Michigan, Minnesota, Missouri, Montana, New Hampshire, Oregon, Pennsylvania, Utah, and Wyoming).

    Some states have voluntarily entered into reciprocity agreements with other states. These agreements vary from state to state. Ten states honor concealed carry permits issued in any other state and three states allow carrying by nonresidents without a permit. These states are the following: Iowa, Idaho, Indiana, Kentucky, Michigan, Missouri, Oklahoma, South Dakota, Tennessee, and

    Utah.  Nine states, however, choose not to recognize any out-of-state permits. These states are California, Connecticut, Hawaii, Massachusetts, Maryland, New Jersey, New York, Oregon, and Rhode Island. And, 27 states recognize permits only from certain other states, typically states with equivalent or higher standards. The breakdown of these states is as follows: Alabama (23 states); Arkansas (37 states); Colorado (29 states); Delaware (18 states); Florida (35 states); Georgia (23 states); Kansas (23 states); Louisiana (36 states); Maine (6 states); Minnesota (15 states); Mississippi (25 states); Montana (40 states); North Carolina (34 states); North Dakota (35 states); Nebraska (35 states); New Hampshire (21 states); New Mexico (19 states); Nevada (15 states); Ohio (21 states); Pennsylvania (25 states); South Carolina (17 states); Texas (40 states); Virginia (27 states); Washington (11 states); Wisconsin; West Virginia (21 states); and Wyoming (33 states).  Note that Massachusetts allows non-residents with valid out-of-state carry licenses to carry concealed firearms in Massachusettsin limited circumstances- hunting, attending an organized firearms collectors' exhibition, or the person is participating in a firearms competition.

    Some states have recently tightened the requirements for their residents to obtain out-of-state carry permits and cancelled reciprocity agreements with states that no longer meet minimum standards. For example, New Mexico and Nevada both stopped recognizing concealed carry permits issued by

    Utahbecause it does not include live-fire instruction as part of its training requirement. Nevada also stopped recognizing carry permits issued by Florida, which only requires permits to be renewed every 7 years. 

    H.R. 822, however, would override these State determinations and would force States to recognize all concealed carry permits regardless of the issuing State's standards.

    H.R. 822's infringement on states' rights is underscored by the substitute amendment, offered by Congressman Trent Franks (R-AZ), which the Committee adopted. The amendment exempts the possession and carrying of concealed handguns under the bill from state conditions and limitations `as to eligibility to possess and carry.

    Unfortunately, by a vote of 12 to 18, the Committee failed to adopt the amendment offered by Ranking Minority Member John Conyers to eliminate this specific provision from the substitute amendment. As a result, this legislation would override all of these carefully deliberated state and local policies, reducing concealed carry permitting to a new federal lowest common denominator.

    Many states have determined that persons convicted of certain misdemeanors should not be allowed to carry concealed handguns within their borders. This is their considered judgment based on debate within their legislatures. As one study shows, misdemeanants who buy handguns are more likely to commit future crimes than other handgun buyers:

    Buyers who had at least one misdemeanor conviction were 7.5 times as likely to be charged with a new offense as buyers who had no record.

    The more past misdemeanors a gun buyer had, the more likely he or she would be charged with a further offense after the purchase.

    Men who had one violent misdemeanor conviction were 9.3 times as likely to be charged with a new offense as men who had no record.

    Men with two or more violent misdemeanor convictions who bought a handgun were 15 times as likely to be charged with a serious violent crime as men with no record who bought handguns.

    Misdemeanor sex offense against a child: Federal law prohibits possession of guns by felons, including people convicted of felony sex crimes, but not by individuals convicted of misdemeanor sex crimes. Some states have nonetheless decided to deny permits to carry concealed, loaded guns to individuals convicted of dangerous misdemeanors, including sex crimes against children. For example,

    New Yorkprohibits people convicted of certain sex crime from carrying or possessing a gun, including the misdemeanor sex crimes of sexual misconduct, forcible touching, sexual abuse in the third degree, and sexual abuse in the second degree.

    In addition, 14 states require concealed carry permit applicants to demonstrate good moral character, including--for example--a record free of criminal convictions and 10 states grant law enforcement broad discretion to deny permits to carry concealed, loaded guns based on an applicant's record or other factors. 

    Bruce Hulme, ISPLA Director of Government Affairs

    The Definitive Organization Lobbying For Investigative and Security Professionals

  • 16 Aug 2011 9:54 AM | Anonymous member (Administrator)


    Click here to read the Administrative Office news release:  FEDERAL REGISTER ANNOUNCEMENT.pdf

    ISPLA has learned of a shocking development within the US District Court system that will eliminate the ability of professional investigators to search federal court records created before 1995.  The implications of this new policy are far reaching and potentially devastating to the people we represent. 


    The Administrative Office (AO) of the United States has announced that on April 1, 2011, it will begin destroying archived records of federal district court cases which were filed after 1969 and which were archived during the period 1970 to 1995. For example, more than 25,000 cases from the Western District of Michigan alone will be destroyed.   In addition, myriad other federal records are also slated to shredded, including records of the Federal Maritime Commission, Department of the Interior, Department of Justice, and the US Bankruptcy Court.

    When a case filed in the district court has been closed, the file is maintained by the District Court for a period of time, but it is ultimately transferred to the National Archives. To reduce the cost of preserving these records, the AO has decided to discard approximately 80% of them. The AO has no plans to preserve these records electronically. Only the Judgments and the docket sheets of the discarded cases will be kept.


    Imagine the consequences of this proposed action.  Background checks on litigants, potential business partners and prospective employees will be seriously hampered;  critical appellate information will be erased; 


    The wanton destruction of an entire generation of public records is utterly unacceptable and action must be taken to prohibit this from occurring.


    Since there was no public comment period, ISPLA is preparing a response to the National Archive and Records Administration and will represent the profession in objecting to this poorly conceived policy.


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