What is a city to do? There are illegal guns on the street that are being used to commit violent crimes, so as a city you do what you can on your own:
But most of the guns -- reportedly 92 percent of those recovered between 1988 and 2003 -- are from out of state. So no matter how many guns you take off the street here, more keep coming. Other states have lax gun laws, so it is easy for people to buy guns there and bring them to your city, and your laws have no effect outside of your borders. And the people that are supposed to intervene when there are problems across state lines in a federal system -- Congress and the rest of the national government -- do nothing; indeed they are trying to prevent you from obtaining the information about where the guns are coming from .
So what's a city to do? If you are New York City, you call together mayors from 15 cities from around the country at Gracie Mansion. On April 25th, Mayor Michael Bloomberg and co-host Mayor Thomas Menino of Boston, played host to what was dubbed the Mayor’s Summit on Illegal Guns. Half photo op, half strategy session, the meeting concluded with the attendees signing a "statement of principles" (in .pdf format) which called for increased punishment of illegal gun possession and trafficking, action against gun dealers who allow so-called “straw purchases” (the use of a third party to buy guns), and resistance to federal efforts to limit the cities’ access to gun trace information.
While it is true that shootings are down in New York so far this year, in many ways Bloomberg has staked his second term on making tangible progress in his campaign against illegal guns. He made the issue a central plank in his State of the City address, traveled to Washington to testify before Congress, and now has attempted to put together a broad coalition of local politicians from across the country. If nothing else, the effort has made Bloomberg a nationally-recognized name.
The reaction in the local press has been positive. The Journal News (Westchester) issued "cheers for leaders demanding action”. The Post made light of the fact that Bloomberg declined a request from the National Shooting Sports Foundation to speak at the meeting.
Of course, the important question is whether the mayor’s coalition-building will do any good. Barring a major change in this fall’s federal elections (not out of the question, but certainly not a sure thing either), Congress is unlikely to take any action to tighten federal gun laws. And given recent attempts to restrict access of local governments to gun trace data, New Yorkers might be forgiven for believing that Congress wishes them ill.
Congress aside, there are two ways that the “Mayor’s Summit” could prove fruitful. Politically, the city can only benefit from attempts to reframe the debate over guns and from the creation of a broad network of like-minded mayors. The group of 15 that attended the meeting at Gracie Mansion included the mayors of such cities as Milwaukee, Jackson, Mississippi, Dallas, and Tulsa. A quick look at the press reports of the summit and the obligatory “balance” quotes from the National Rifle Association give a hint as to the anti-Bloomberg talking points: The mayor is an elitist with an elitist plan, out to get law-abiding gun owners. To the extent that the coalition grows to include more politicians from cities like Jackson, Dallas, and Tulsa -- hardly bastions of northeast-style liberalism -- the group’s ideas may have more currency.
Practically, if this group proves to be more than a one-time photo opportunity, and can expand to include a broader network of cities, there are real opportunities for mutual assistance. Bloomberg has made much of his fondness for technology and information sharing, not only in public safety initiatives but throughout city government. Figuring out a way to share information about gun trafficking and related problems with cities across the country can only benefit New York’s efforts (and everyone else’s as well). Sometimes when Congress refuses to act, the people affected on the local level just need to get creative.
As if on cue, the same week of the Mayor’s Summit, a federal judge in Brooklyn handed the city another victory in its lawsuit against gun manufacturers and dealers . Judge Jack Weinstein, a Lyndon Johnson appointee who is a Senior Judge in the Eastern District of New York, again allowed the city’s suit to go forward, despite apparent federal law to the contrary. Last year, Weinstein held that the suit could continue, despite the passage of a law prohibiting such suits (that decision is currently pending on appeal in the Second Circuit). And now Judge Weinstein has held that Congress’ recent attempts to restrict the use of gun trace data by local governments do not apply to the New York case, because the city had possession of the information prior to the passage of the law. It is unclear whether Judge Weinstein’s decision will hold up on appeal, but for now at least the city’s lawsuit is still alive.
David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator.Â
Gorgonio Balbuena, who was born in Mexico, said he was injured when he fell from a ramp while pushing a wheelbarrow on a construction site in the city. Satnislaw Majlinger, who was born in Poland, said he too was injured when he fell while working on a different construction site in the city.
Both said their injuries are severe. Both sued, claiming labor law violations.
And neither had legal standing to work, or even live, in the United States.
Two different state appellate courts — one in Manhattan, one in Brooklyn — delivered two contradictory rulings on their rights to sue for lost wages.
The Appellate Division covering Manhattan and the Bronx reached the conclusion that damages such an injured worker can claim are limited to "the wages [he] would have been able to earn in his home country." But the Appellate Division that hears cases from the city's other boroughs, as well as Long Island and Westchester, reached a contrary result - - concluding that all workers, regardless of immigration status, are protected by the laws of this state.
The highest court in New York State, the New York Court of Appeals in Albany, has now resolved these contradictory decisions by upholding the one from Brooklyn. The court declared that construction workers injured on the job can seek damages for past and future loss of employment and income, even if they are "aliens," immigrants with no documents allowing them to work in this country.
Judge Victoria A. Graffeo of the state's highest court, wrote the combined opinion in Gorgonio Balbuena v. IDR Realty and Stanislaw Majlinger v. Cassino Contracting Corp., holding that both Balbuena and Majlinger could sue for lost wages.
The Manhattan judges were wrong, the Albany judges decided, to rule on the basis of a federal case known as Hoffman Plastics v. Natoinal Labor Relations Board, because the immigrant worker's conduct in the Hoffman case was unlawful (he used fraudulent documents to get hired). But, while both Gorgonio Balbuena and Stanislaw Majlinger were in the United States illegally, their conduct on the job was not illegal. Since it is illegal for an employer to hire employees without verifying authorization to work in this country, it is the employer who acts unlawfully by hiring an undocumented worker. No crime is committed by an "unauthorized alien" employee who takes the job, unless fraudulent documents were used, which neither Balbuena nor Majlinger did.
Ultimately, Judge Graffeo wrote, "the question is whether an award of past and future wages to an undocumented alien worker undermines the objectives of federal immigration law."
While defendants claimed that permitting an undocumented alien to recover lost wages is "in contravention of the purposes and objectives of federal immigration law, condones past transgressions and encourages future violations," plaintiffs, joined by Attorney General Elliot Spitzer, argued to the contrary. The plaintiffs' position was that an undocumented alien should be allowed to recover for monies lost as a result of defendants' failure to adhere to the work place safety requirements. They also argued that precluding lost wages would make it more financially attractive for noncompliant employers to hire illegal aliens, thereby undercutting the central goal of the federal act, and providing less of an incentive for employers to meet state labor requirements regulating occupational health and safety.
"It was the New York legislature's intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor,' instead of on workers, who are scarcely in a position to protect themselves from accident," the Court held. "The Labor Law," the opinion said, "applies to all workers in qualifying employment situations - - regardless of immigration status - - and nothing . . . negates the universal applicability of this principle."
According to the 25 page opinion, "limiting a lost wages claim by an injured undocumented alien would lessen an employer's incentive to comply with the Labor Law and supply all of its workers the safe workplace that the Legislature demands.
"An absolute bar to recovery of lost wages by an undocumented worker would lessen the unscrupulous employer's potential liability to its alien workers and make it more financially attractive to hire undocumented aliens." The majority opinion, from which two judges dissented, said, "illegal aliens are willing to work in jobs that are more dangerous and undesirable - - and for less money - - than their legal immigrant and citizen counterparts, [and] would actually increase employment levels of undocumented aliens, not decrease it as Congress sought."
The cases can now proceed to trial where evidence may be introduced by an undocumented alien, about work history and prospects, just as in any other personal injury case. But the jury would be entitled to hear about the likelihood of future earnings in this country, including immigration status.
Eventually the issue might reach the Supreme Court of the United States which would be faced with New York's conclusion that "an undocumented alien performing construction work is not an outlaw engaged in illegal activity."
Emily Jane Goodman is a New York State Supreme Court Justice
David Dean details a proposed crime budget with the largest city-funded expansion of the police department’s uniformed force since 1993, and asks what if anything it will accomplish.