Federal Judge Strikes Down NY’s Electric Arms Ban as Unconstitutional

Written By Caleb Angell

Introduction

In a recent decision, United States District Judge David N. Hurd held that New York’s taser and stun gun ban, codified as New York Penal Law § 265.01(1), was in violation of the Second Amendment. Judge Hurd’s decision in Avitabile v. Beach follows a string of recent decisions across the country in the wake of the United States Supreme Court’s decisions in D.C. v. Heller, McDonald v. Chicago, and Caetano v. Massachusetts, which have found that tasers and other electric arms are “bearable arms” subject to Second Amendment Protections. As a result, several courts have held that blanket bans on electric arms could not be justified under the asserted state interest and have also begun to offer greater legal protections to those who wish to carry them for self-defense purposes.

The Decision

Avitabile v. Beach arose out of a lawsuit filed by Matthew Avitabile, a resident of Schoharie County, New York, who wanted to buy a taser for self-defense purposes in his home. Mr. Avitabile sued New York State Police Superintendent George Beach, seeking declaratory judgment “that New York’s total ban on the civilian possession of tasers and stun guns violates the Second Amendment.” Although Mr. Avitabile owns several firearms, he filed suit because of his desire to “arm himself with a non-lethal weapon,” and out of his belief that “lethal force should be a last resort” when it comes to self-defense.

In his decision, Judge Hurd found that New York’s electric arms ban implicated “Avitabile’s core constitutional right as a law-abiding citizen to protect himself in his own home with a weapon commonly used for that purpose.” Judge Hurd also wrote that New York’s public safety rationale for the taser ban was “particularly hard to square with its suggestion . . . that Avitabile should just go out and buy a handgun, or perhaps a few more shotguns or rifles, if he wants to better protect himself,” given the far deadlier nature of firearms. While Judge Hurd stated that “New York’s sweeping prohibition on the possession and use of tasers and stun guns by all citizens for all purposes, even for self-defense in one’s own home, must be declared unconstitutional,” he also explained that his ruling did not “foreclose the possibility that some restriction(s) on the possession and/or use of tasers and stun guns would be permissible under the Second Amendment.”

Growing Trend of Electric Arms Legalization

In 2011, seven states outlawed the possession of electric arms. However, by operation of Judge Hurd’s decision in Avitabile, New York became the fifth of those seven states in which the possession of electric arms has become legalized. These developments were prompted by the Supreme Court’s ruling in McDonald in 2010, when it held that Second Amendment protections apply to the states. Even more recently, in Caetano, the Supreme Court signaled in a brief, unanimous decision that Second Amendment rights likely extend to electric arms.

In Caetano, the Supreme Court rejected the Massachusetts Supreme Judicial Court’s rationale behind its conclusion that Massachusetts’s electric arms ban was constitutional. The Supreme Judicial Court had concluded that the ban was constitutional because electric arms (1) “were not in common use at the time of the Second Amendment,” (2) were “unusual” weapons because they are “a thoroughly modern invention,” and (3) were not “readily adaptable” to military use. The Supreme Court rejected all three rationales for the ban’s constitutionality as clear contradictions of its Second Amendment precedent.

In his concurrence in Caetano, Justice Alito cautioned that since “[c]ountless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person,” courts “should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.”

Thus, in the past few years following McDonald, New Jersey, Wisconsin, Michigan, Massachusetts, and now New York, have either repealed their electric arms bans or had them struck down as unconstitutional, which leaves Hawaii and Rhode Island as the only remaining states with electric arm bans. However, even those bans are unlikely to remain in effect for much longer, as lawsuits are already in progress challenging their constitutionality. Moreover, both statutes may be destined for preemptive legislative repeal due to pending legislation proposing amendments to them.

Conclusion

The almost universal legalization of electric arms for self-defense across the United States reflects the willingness of both state and federal courts, as well as state legislatures, to extend Second Amendment guarantees to weapons invented in the modern era, at least with regard to newly invented non-lethal weapons. As technological developments in the self-defense industry continue, it will be interesting to observe whether further innovation will continue to warrant Second Amendment protections.

Sources

Avitabile v. Beach, No. 1:16-CV-1447, 2019 U.S. Dist. LEXIS 47506 (N.D.N.Y. Mar. 22, 2019).

Chris Carola, Judge says New York’s stun gun ban is unconstitutional, Associated Press (Mar. 22, 2019).

Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).

Eugene Volokh, Right to Possess Stun Guns in N.Y., Right to Carry Them in Illinois, reason.com (Mar. 25, 2019).

H.R. 1473, 30th Leg. (HI 2019).

McDonald v. Chicago, 561 U.S. 742 (2010).

People v. Webb, No. 122951, 2019 Ill. LEXIS 439 (Ill. Mar. 21, 2019).

People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012).

Ramirez v. Commonwealth, 94 N.E.3d 809, 810 (Mass. 2018).

Sarah Doiron & Shiina LoSciuto, RI Rep. reintroduces bill allowing stun gun ownership, WPRI.com (Apr. 18, 2018).

State v. Rivera, 716 S.E.2d 859, 863 n. 2 (N.C. Ct. App. 2011).

Photo courtesy of The New York Post

“I know nothing about WikiLeaks”: The Extradition Process of WikiLeaks Founder, Julian Assange

Written by Margaret E. Talt

Introduction

On April 11, 2019, British police physically removed WikiLeaks founder, Julian Assange, from the Ecuadorean Embassy in London at the request of American authorities. Shortly after his arrest, United States officials unsealed the March 2018 indictment against Assange, charging him with a single count of conspiracy to commit computer intrusion. The indictment further states that Chelsea Manning previously provided Julian Assange with complete databases from several U.S. departments and agencies. Documents obtained included 90,000 Afghanistan war-related activity reports, 400,000 Iraq activity reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 U.S. Department of State cables. Chelsea Manning provided WikiLeaks with the classified records, which were then published on the WikiLeaks website in 2010 and 2011.

Who is Julian Assange?

Julian Assange is an Australian/Ecuadorean national, journalist, hacker, and the founder of the website Wikileaks. Wikileaks was created in 2006 with the intention of collecting and sharing confidential information on an “international scale.” Julian Assange gained attention in 2007, when Wikileaks released a U.S. military manual which included detailed information on the Guantanamo detention center.  However, Julian Assange’s true rise to fame came in April 2010, when WikiLeaks posted a 2007 video showing a U.S. military helicopter firing and killing two Reuters journalists and several Iraqi citizens. The video was posted on YouTube under the title “Collateral Murder.”

During the 2016 presidential race, Wikileaks released 1,200 emails from the private server Hillary Clinton used during her service as Secretary of State. Emails from Hillary Clinton’s campaign chair were also released, leading U.S. government officials to suspect that Russian agents were behind hacking into servers and supplying the emails to WikiLeaks. Although Julian Assange stated that he had no personal desire to influence the outcome of the 2016 presidential election, the U.S. public was better informed as a result of these published emails.

Revocation of Asylum

In 2012, Julian Assange sought asylum from Ecuador to avoid extradition to Sweden for sexual assault charges (that have since been dropped). He has been hiding at the Ecuadorean Embassy in London for the last seven years. However, upon “repeated violations of international conventions and daily-life protocols,” on April 11, 2019, Ecuador’s president announced the withdrawal of Julian Assange’s asylum. Ecuador’s president further alleged that Julian Assange released secret documents from the Vatican, and mistreated guards at the embassy.

U.S. and U.K. Extradition Treaty

As a result of the asylum revocation, the U.S. requested that British police detain Julian Assange as the U.S. prepares to extradite him. As Julian Assange was carried out of the Ecuadorean Embassy, he screamed “The U.K. must resist.” His attorney later clarified that Julian Assange meant the United Kingdom should resist U.S. efforts to extradite him. His attorney also made clear that Julian Assange has no intention of surrendering to the U.S. Instead, he is going to fight extradition, as he and many of his followers believe that “extradition sets a dangerous precedent for media organizations in Europe and around the world . . . for publishing truthful information about the U.S.”

The U.S. and the U.K. began renegotiating their extradition treaty after September 11, 2001. The new treaty was signed on March 31, 2003 and went into force on April 26, 2007. The treaty outlines the requirements and process in which the offender can be extradited. If the charges for extradition are not contained in the approved list or the requirements of the process are not met, the Requested State can deny the Requesting State extradition.

In 2018, the U.K.’s high court refused to send Lauri Love, a British student charged with hacking U.S. government websites, to the U.S because of concerns the student would kill himself if tried in America. In 2004, suspected terrorist Babar Ahmad was arrested in the U.K. and held for eight years before he was extradited to the U.S. in 2012. The U.K. denied the U.S. extradition for computer hacker Gary McKinnon in 2012 because then-home secretary Theresa May stated that sending McKinnon while he was “seriously ill” was a violation of his human rights. In total, the U.K. has denied the U.S. ten requests for extradition since this treaty went into effect, while the U.S. has granted all of the U.K.’s requests for extradition.

Analysis

Under the extradition treaty, the U.S. asked the U.K. for a “provisional arrest”. The Requesting State may request a provisional request under Article 12 for urgent situations, pending presentation of the request for extradition. This article gives the U.S. sixty days to compile the necessary documents and file additional charges against Julian Assange before presenting the case to the U.K. However, once the case is submitted to the U.K. for extradition consideration, no additional charges can be added pursuant to Article 18, Rule of Specialty.

Once submitted for review, the U.K. determines if the request meets the “reasonable suspicion” standard, which is similar to the U.S.’s “probable cause” standard. Julian Assange’s extradition proceeding will begin in the Magistrates Court, which mostly tries criminal offenses. The judge in the Magistrates Court can decide either to approve or deny the extradition request or to send the request directly to the U.K.’s home secretary. Either way, Julian Assange can appeal the decision of the Magistrates Court to the h, which is similar to the U.S.’s intermediate appeals court.

If the home secretary approves extradition, Julian Assange can still appeal to the high court, and continue appealing unfavorable decisions to the U.K.’s Supreme Court, similar to the U.S. Supreme Court. This process is known to take many years, and some have taken as long as thirteen years to work their way through the U.K.’s court system.

Conclusion

According to the Department of Justice, if extradited and convicted, Julian Assange faces a maximum penalty of five years in prison. However, because the procedural protections afforded Julian Assange in the extradition process, it may be many years before he is back on American soil. Alternatively, if the U.K. denies the U.S. its request for extradition, Julian Assange may never face charges in the U.S.

Sources

Ben Kochman, Extradition Clash Erupts After Assange’s Arrest In London, Law 360 (Apr. 11, 2019, 9:29 AM).

Costas Pitas, Guy Faulconbridge, & Kate Holton, U.S. Charges Assange after London arrest ends seven years in Ecuador embassy, Reuters (Apr. 11. 2019, 5:43 AM).

Extradition Treaty, N. Ir.-U.K. of Gr. Brit.-U.S., opened for signature Mar. 31, 2003 T.I.A.S. No. 07-426 (entered into force Apr. 26, 2007).

Indictment at 2, United States v. Julian Paul Assange, Criminal No. 1:18 cr (E.D. Va. 2018).

Julian Assange Biography, Biography (Apr. 2, 2014).

Julian Assange: WikiLeaks co-founder arrested in London, BBC (Apr. 12, 2019).

Zoe Tillman, It Could Be Years Before Julian Assange Steps Foot In the United States, BuzzFeed News (Apr. 12, 2019 at 4:09 PM).

FAQs on the U.S.-U.K Extradition Relationship, U.S. Embassy and Consulate in The United Kingdom (last visited Apr. 14, 2019).

Photo Courtesy of Express, UK

April 2019: Rebeca Sánchez-Roig (L’90)

As a theatre lover, Rebeca Sánchez-Roig never imagined attending law school and opening her own firm. An immigrant from Cuba, Rebeca and her family moved around frequently. From Florida to Puerto Rico back to Florida and eventually the mid-west. Her father was a lawyer in Cuba but wanted a different career path: to become a professor. Being immigrants, both her mother and father had to restart their higher education and move where the jobs were. Rebeca and her family moved all over the mid-west from Missouri, to Iowa, Tennessee, and Illinois; by the time Rebeca graduated high school, she had attended 10 different schools.

Growing up in the mid-west, Rebeca and her siblings were one of the only

Rebeca Sánchez-Roig
Partner at Sánchez-Roig Law, P.A.

children in their schools that spoke two different language. There was a culture shock, but Rebeca was proud of who she was and where she came from. Gifted by her parents with a love of reading and learning, she immersed herself in books, movies, and learning. Her father always told her that the communist could take everything away from a person, except their education. They could never take away knowledge. Higher education, including a masters and doctorate, were not options in Rebeca’s family; these were requirements. Education was key to a successful future in life. As refugees, Rebeca’s parents could not afford to pay for their children’s college education. But that did not deter Rebeca and her siblings from getting a higher education

Rebeca started at Miami Dade Community College, where she received her Associate’s degree. She then attended Florida Atlantic University, where she made life-long friends and pursued her love of theatre. With a major in lighting design and theatre technology, Rebeca graduated with a Bachelor’s in Fine Arts; and also received her Master’s in Fine Arts from the university.

Her desire to work in the theatre took her to the Florida Grand Opera, the Cincinnati Opera, and Olympia Theatre. The idea of law school was not even a thought in Rebeca’s mind until one day a stage manager for English jazz and pop singer and actor Cleo Laine, met Rebeca, and changed her life.

While working as part of the stage crews for these theatres, Rebeca was the only person with an advanced degree. When it came to reading contracts, the theatre and crew turned to Rebeca. Having higher education also gave her a leadership role, and she was quickly identified as the go-to person for reading contracts and keeping everyone informed of the terms. When Cleo Laine was set to perform, her stage manager introduced himself to Rebeca. Seeing how she was the person everyone turned to for contracts, he asked if she had ever given law school a thought. He told her he was an attorney and worked in entertainment. Rebeca thought it was interesting but did not give it any consideration until that summer.

That summer, while working at a summer camp for performers in the Catskills, the thought of law school continued to run through her mind. By the end of that summer, she knew that she wanted to pursue a career in law.

Choosing a law school was not an easy task. Here she was, a theatre major with no background in the law whatsoever. Who would want such a person in law school! Rebeca applied to as many schools as she could afford, and to her surprise, she was accepted into almost all of them.

Syracuse stood out among the acceptances. She had good friends in Syracuse, and wanted to be as far away from warm weather as possible so she could focus on her studies. Not long after, Rebeca accepted Syracuse’s admission offer, and moved from sunny Florida to Syracuse.

Entering law school was a shocking experience for Rebeca; she had absolutely no idea what to expect. She had spoken with a friend who was in law school—but nothing prepared her for the actual law school experience.

Rebeca ended up taking a summer program a few weeks prior to the start of classes. Looking back, she is happy she attended the summer course because it allowed her to get a leg up on her understanding of what was to be expected in law school.

Entering law school, Rebeca knew she wanted to pursue a career in entertainment law. With her background in theatre and the stage manager’s advice in mind, her mind was set. She took some entertainment law classes and was ready to pursue a career in that field. As life would have it, Rebeca found herself, during her 2L summer, as a summer associate at Morgan, Lewis & Bockius, LLP in Miami. She was offered a full-time position in the labor department, but she still wished to pursue a career in entertainment law.

In her 3L year, she learned that a friend told was pursuing a career in immigration law, which surprised her because Rebeca had no idea that this area of law existed. Being an immigrant herself, she had filed most of her own paperwork, and had no clue there was a whole legal aspect behind it.

While applying to jobs, Rebeca weighed her options and decided to return to Florida where most of her family lived. She accepted the offer from Morgan, Lewis & Bockius and worked there for four years as a corporate lawyer handling financial matters. Rebeca then moved to another large firm, continued work as a corporate lawyer, and added real estate attorney to her resume.

As much as she enjoyed private practice, she wished to spend more time with her family and three–year old son. She was working 12 to 15-hour days, and though she was fortunate to see her son during the day, she wanted to spend more time with him. A friend, who worked at the federal public defender’s office, told Rebeca that the Immigration and Naturalization Service was hiring. Knowing nothing of immigration law, Rebeca still applied and received an offer.

At the new job, she was given four days of training, and on the fifth she was in court defending the government on immigration issues. Her years of private practice and Law Review experience, however, helped her thrive. Within a year, she was promoted to Deputy Chief Counsel, a supervisory position, and created a training program which gave new attorneys at the office more legal training and better preparation for what was to come.

After 17 years of federal immigration prosecution work for three different administrations, Rebeca knew it was time to move on. She resigned from her position, and opened a law firm.

Rebeca now runs her own successful immigration firm, Sánchez-Roig Law, P.A. in Miami, Florida, a boutique immigration firm representing global clients in U.S. immigration matters before federal agencies and courts.

Both law school and the Law Review helped shape Rebeca into the remarkable attorney she is today. She was Managing Editor of the Law Review and uses her editing and researching skills to this day. She also took her leadership role as Managing Editor and learned how to be a trainer, mentor, and guide for new attorneys and fellow attorneys.

For Rebeca, the law is not an “I” job—it’s about cooperation, working with others, and learning every day. She firmly believes that success is in sharing knowledge, and helping others along the way. With these words in mind, Rebeca has become the successful attorney she is today.

Syracuse Law Review looks forward to recognizing Rebeca and her many accomplishments at the Law Review Banquet on April 18, 2019.

This story was written by Alumni Editor Stefani Joslin and is the eighteenth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.’ Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus written by our newest Alumni Editor: Gaity Hashimi.

Off the Field Goals: Women’s National Soccer Team Seeks Equal Pay for Equal Play

Written by Aubre G. Dean

 

Introduction

On March 8, 2019, International Women’s Day, the U.S. Women’s National Soccer Team (“USWNT”) filed a lawsuit against the United States Soccer Federation (“USSF”) for gender discrimination. The lawsuit names twenty-eight women as plaintiff, including some of the most recognized names in the sport: Alex Morgan, Megan Rapinoe and Cali Lloyd. Filed in the United States District Court, the complaint alleges that the USSF has created a system of “institutionalized gender discrimination” under both the Equal Pay Act of 1963 (“EPA”) and Title VII of the Civil Rights Act (“Title VII”). The twenty-eight women are also seeking class certification to include any female players since 2015.

Litigation Background

The case comes to the District Court after five players filed complaints with the Equal Employment Opportunity Commission (“EEOC”) in March 2016. After investigating the claims, the EEOC issued the players Notices of Right to Sue allowing them to file a lawsuit within 90 days. The complaint was also filed one month before Equal Pay Day, which took place on April 2, 2019. The complaint itself mirrors those often seen in cases where women are paid less than men performing the same job. The complaint focuses on the fact that a player on the USWNT can make a maximum of $4,950 per game, while a player on the Men’s National Team earns on average $13,166 per game. On average, a female player on the USWNT makes 38% what the male players make.

Legal Basis

Under federal law, an employer may not discriminate in its employee practices on the basis of sex. According to the EPA, men and women must be given equal pay for equal work. In conjunction with that requirement, Title VII makes it unlawful for employers to discriminate against pay and benefits on the basis of sex. Here, once the plaintiffs show a prima facie case of salary discrimination, the burden will shift to the USSF to prove that the pay is justified by one of the four exceptions: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality or work; or (4) a differential based on any factor other than sex.

Comparing the Pay of Men and Women

Often when pay and playing conditions for female athletes is compared to pay of male athletes, the focus turns to whether the same type of revenue is made by the individual sport. Accordingly, the complaint focuses on the fact that the pay gap exists, despite the USWNT’s performance being superior to that of the USMNT, with the female players becoming world champions. As the reigning World Cup Champions, the USWNT will be heading in as one of the favorites to win the 2019 Women’s World Cup. In fact, the USWNT is consistently one of the best teams in the world, having won three of the seven most recent Women’s Cup titles. The USWNT has also placed first in the Olympics four of the six times that women’s soccer has been played. As for the men on the USMNT, the highest they have placed is third in the World Cup, in 1930. This last year the American team missed qualifying for the 2018 World Cup. The bonus for winning the final game of the Women’s World Cup was $1.725 million, a sharp contrast to the $5.375 million paid to the men for losing in the round of 16 in 2014. The complaint states simply: “during the period relevant to this case, the WNT earned more in profits and/or revenue than the MNT.”

The complaint also alleges there are other discriminatory practices being utilized by the USSF. From 2015 to 2018, the women played nineteen more games because of their success. The women played more games on artificial turf than the men and were never flown on a charter plane, despite the men having seventeen flights. The claim also asserts that the lower ticket prices of women’s friendlies and less promotion of matches led to “USSF-manufactured revenue depression.” Additionally, the complaint also focuses on the attention and revenue that the USWNT has brought to the sport of soccer. In 2015, more than 23 million viewers in the United States tuned in to Fox to watch the USWNT beat Japan in the final round of the Women’s World Cup. To date, this is the largest audience in American history for a single soccer event.

Conclusion

The outcome of the lawsuit is unclear, and the women will most likely not get their shot at this goal before they head to France for the 2019 Women’s World Cup. Further, the USSF has rejected pay alternatives proposed by the USWNT players association, including a compensation model where the women would only receive more money in the years that the USSF derives more revenue through USWNT. However, this suit means more than just a paycheck for the women as it shines light on the gender pay gap in athletics and creates a motto of “equal play, equal pay” which is rippling throughout the sports world.

Sources

Complaint for Petitioner, Morgan et al., No. 2:19-CV-01717 (C.D. Cal. 2019)

Andrew Das, U.S. Women’s Soccer Team Sues U.S. Soccer for Gender Discrimination, N.Y. Times, (March 8, 2019).

Laurel Wamsley, U.S. Women’s Soccer Team Sues U.S. Soccer For Gender Discrimination, All Things Considered, (March 8, 2019, 1:38 PM),

Civil Rights Act, 42 USCS § 2000e (1964).

Equal Pay Act, 29 U.S.C. § 206(d) (1963).

Photo courtesy of Alex Morgan, Twitter.

March 2019: Andrew Bobrek (L’07)

Andy Bobrek followed a non-traditional path to law school, which started with a leap of faith motivated by a desire to live, work, and raise his family in Syracuse, New York.

Andy is a Central New Yorker through and through. Andy attended St. Lawrence University where he studied political science. After completing his undergraduate degree, Andy returned home to Syracuse and eventually worked as a staffer for Congressman Jim Walsh. Andy’s years working with Congressman Walsh were enjoyable and fulfilling, but his career path was eventually leading to Washington, DC, far away from his roots in Central New York and far away from his family and friends. Andy and his wife were committed to raising their family in Syracuse, which then led them to look at law school and a legal career as a potential means to stay in the area.

Andrew Bobrek
Partner at Bond, Shoeneck, & King, PLLC

In this regard, Andy will tell you that attending SUCOL was ultimately a very practical decision. He will also tell you that it was a great decision for his family and for his professional career. Andy followed an incremental approach to the application process, first studying for and taking the LSAT and then applying to SUCOL (and only to SUCOL), with his ultimate goal being to land a job with an established firm in Syracuse. Andy continued working part-time jobs throughout law school, but, with two young children at the time, there was still plenty of motivation to keep studying and working hard.

During his legal studies, Andy also worked part-time at the Maxwell School, where he concurrently pursued a Master’s degree in Public Administration. Andy also assisted SUCOL’s legal writing faculty – particularly Ian Gallacher – as a research assistant. Although Andy stayed busy with his family, his studies, and his work, he still found the time to be a part of the Law Review. At first, Andy was hesitant about joining Law Review because of the time commitment and his other existing responsibilities. But Andy was nevertheless honored to be invited to join Law Review and ultimately knew this was an opportunity he could not refuse; he did not want to pass on the chance to be part of the prestigious Law Review team and to better hone his editing and legal writing skills.

Being a dual-degree student, Andy was only able to take a limited number of electives while fitting-in graduation requirements and bar-related classes. And yet one such elective – Labor Law – captured his interest and helped to ignite his desire to practice in the labor and employment law arena. During his 2L year, Andy applied for a summer clerkship with firms located in Syracuse and later received an offer from Bond, Shoeneck & King, PLLC, which he readily accepted. During Andy’s summer clerkship, he rotated through Bond’s different practice areas, including its well-known labor and employment practice.

Andy enjoyed immensely his summer at Bond and was beyond impressed with talent and skills of the firm’s attorneys and staff. He was also impressed with the highly sophisticated legal work being performed and with Bond’s amazing array of clients. Most importantly, Andy was struck by the friendship and support offered by Bond’s attorneys, who all showed a genuine interest in helping him to become a successful attorney. After that summer, Andy knew that labor and employment law was his calling and that Bond was the law firm for him. In turn, he gratefully accepted an offer to become an associate attorney at Bond, where he remains to this day.

Starting as an associate attorney after graduation, Andy felt comfortable working at Bond and attributes this comfort to his studies at SUCOL, which allowed him to build the necessary skills and partake in many helpful practical experiences. Andy’s practice today entails extensive amounts of legal writing, and he credits the skills he honed as part of Law Review, along with valuable guidance from Professor Gallacher, Professor Kathleen O’Connor, and Professor Louise Lantzy, as being a key to success.

Working at Bond, Andy has enjoyed a fulfilling and successful career and was honored when he was asked to become a partner. Andy will also tell you that his enjoyment working at Bond is due, in no small part, to the close and meaningful friendships he has established with colleagues and clients along the way.

Andy is a proud and active alumnus of Syracuse. He regularly works with law school students, coaching competition teams, meeting with admitted students, and judging the popular ADR competition, which he helped to found years ago. Andy has also lectured at the Maxwell School several times since graduating. These activities have also been professionally fulfilling, and Andy encourages all alumni to stay involved and to stay in touch with Syracuse as best they can.

What started as a leap of faith for Andy – uncertain of how he would manage a family, work, and school all at once – has turned into a successful legal career. By staying balanced and keeping his goals in mind, and with the help of his wife and his family, Andy has been able to stay close to his Central New York roots. And he remains deeply appreciative for everything he learned while attending SUCOL.

This story was written by Alumni Editor Stefani Joslin and is the seventeenth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.’ Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.

Published: Meghan Vumback

We are proud to announce that 3L and Associate Notes Editor Meghan Vumback will be published this spring!


Publication: Law Journal for Social Justice at Arizona State University’s Sandra Day O’Connor College of Law.

Note: Evacuating the Incarcerated: The Intricacies of Keeping Prisoner’s Eighth Amendment Rights Intact During Natural Disasters


Meghan is a third-year student at Syracuse University College of Law. She attended Marist College where she majored in Communications with concentrations in Public Relations and Advertising.

Meghan serves as an Associate Notes Editor for the Syracuse Law Review, a research assistant for Professor Lauryn P. Gouldin, an Academic Success Fellow, and works with the Criminal Defense Clinic.

Okurrr?: The Legal Implications of Trademarking a Catchphrase

Written By Shannon Knapp

 

Introduction

Since the summer of 2017, Cardi B has become one of the biggest names in the music industry (and one of the most controversial). Beyond being famous for her music and social media presence, Cardi is known for her tongue-rolling phrase “Okurrr,” a sassy and elongated way of saying “okay.” However, Cardi B arguably did not create the word. Cardi tweeted that the Kardashian sisters got her hooked on saying it. Likely, the Kardashians picked it up from contestants on RuPaul’s Drag Race, who credit the term to Laura Bell Bundy. Yet, the term has become associated with Cardi B, even becoming the basis of a Pepsi advertisement she starred in during the Super Bowl.

Cardi B (through her company Washpoppin) has filed an application to the United States Patent and Trademark Office (“USPTO”) to trademark “okurrr” for use on paper goods, namely paper cups and posters. She also filed a second application for the same term to be used on clothing, including t-shirts and caps. Prior to the above applications, Washpoppin filed a similar application for another variant of the phrase, spelled “okurr” (two r’s instead of three).

Cardi B is not the first celebrity to try to take ownership of popular phrases. Paris Hilton famously trademarked the catchphrase “that’s hot” (for use on alcohol and clothing) in 2006; Anthony Davis has trademarked the two phrases “fear the brow” and “raise the brow” (for use on a number of products including aftershave and entertainment services); and Will.I.Am attempted to trademark the phrase “willpower” (although that application was rejected by the Trademark Trial and Appeal Board).

This particular trademark application by Cardi B has been met with criticism and confusion due to concerns that the term will be taken out of the public domain and inhibit people from being able to say the phrase. Misunderstanding about the trademark process perpetuates this confusion. So what is a trademark? If Cardi B is successful, will we never be able to say “okurrr” again?

What is a Trademark?

A trademark is one of many types of intellectual property protected under United States law (both at the federal and state level). A trademark serves a number of functions, including identifying a single source of origin for goods and services, distinguishing the owner’s goods and services from those of others, and providing the owner of the mark with the right to prevent others from adopting similar marks likely to cause confusion in the marketplace. Trademarks are usually for specific commercial uses and spellings. In this case, Cardi B is only looking to use the specific spelling of “okurr/r” on merchandise. There can be trademarks for words, names, symbols, and devices, as well as for trade dress, colors, sounds, and scents.

To successfully acquire federal trademark protection, the mark must be distinctive, be of acceptable subject matter, and be used in commerce. The first requirement, distinctiveness, can be achieved in two primary ways. A mark is distinctive if it is inherently distinctive, which means that it is immediately capable of identifying a source of origin for a good or service. Or, a mark can have acquired distinctiveness, which means that it is not inherently distinctive, but has gained secondary meaning over time from use and promotion in the market. Second, a mark is of acceptable subject matter if it is defined in Section 45 of the Lanham Act, which includes words, names, symbols, images, sounds, etc. Lastly, a mark must have been used in interstate commerce in connection with the good or service.

Will Cardi B be Successful?

It is ultimately up to the USPTO whether Cardi B will be successful in her trademark application. She is covering her bases by submitting multiple spellings, but she still might have difficulty. The spoken word in which the written phrase is representing has no standard form, which can cause difficulties. Also, Cardi B is not the originator of the phrase, which could hinder her application. However, her lawyers could claim she has achieved “acquired distinctiveness” because people have come to commonly associate her with the expression. But, Cardi B may be facing other challenges to her application, including a potential registration challenge from a drag queen named Alaska.

Conclusion

No matter what happens with Cardi B’s trademark application, no one needs to worry about a crackdown on using the fun phrase. Cardi B is only seeking protection for certain merchandise, and this is not the first time a celebrity has trademarked famous words or sayings.


Sources

Aleksi Tzatzev, 10 Celebrity Trademarks We Can’t Believe Exist, Business Insider.

Ben Zimmer, Cardi B Didn’t Invent “Okurrr,” but That Might Not Matter to a Trademark Judge, The Atlantic.

Hugh McIntyre, Cardi B Wants to Trademark The Phrase ‘Okurrr,’ Forbes.

Practical Law Intellectual Property & Technology, Trademark: Overview (2019).

Withrop & Weinstine, P.A., Cardi B, You (Probably) Can’t Trademark “Okurrr,” Okay?, JDSUPRA.

Photo courtesy of JD Supra.