Juan Gomez-Garcia was standing outside a Bronx Kentucky Fried Chicken on May 16, 2012, waiting for his order to be prepared, when a police officer approached and asked him if he had any drugs.
The 27-year-old says he admitted to carrying some marijuana, at which point the cop reached inside his pocket and pulled out a ziploc bag containing weed.
Months earlier, Police Commissioner Ray Kelly issued a memo to New York City cops: "A crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marijuana."
The directive-- considered an attempt to curb the growing amount of low-level marijuana arrests in New York City-- did not spare Gomez-Garcia from being cuffed outside KFC.
Under a current New York law-- which Reason this past week crowned as the nation's "Dumbest Drug Law"-- possession of 25 grams or less of marijuana shouldn't result in arrest unless it's "burning or in public view." Rather, it's considered a violation with a punishment comparable to a parking ticket.
The law allows the NYPD, however, to ask the hundreds of thousands they stop on the streets each year (87 percent of whom, in 2011, were black or Latino) to empty their pockets.
When the marijuana comes out of the pocket, it becomes "in public view," and they can make an arrest. Additionally-- as in Gomez-Garcia's case-- cops will often bring the drugs into "public view" during a stop-and-frisk.
According to a lawsuit filed by the Legal Aid Society against the NYPD, Gomez-Garcia's encounter with the officer resulted in an arrest. He was held in a jail cell for 12 hours-- during which time he pleaded with a sergeant that he should only be getting a ticket-- before being charged with "in public view" possession and pleading guilty to a charge of disorderly conduct.
Thousands of such arrests across the city, the lawsuit claims, highlight the ineffectiveness of Kelly's September, 2011 memo. Steven Banks, a Legal Aid lawyer, presented City Council with statistics proving Kelly's order was being ignored by rank-and-file cops.
In August 2011, 4,189 people were arrested in New York City for misdemeanor marijuana possession, Mr. Banks said. While the arrests dipped below 3,000 in December, "the decline was only temporary", he said, adding that by March, the number of arrests had risen to 4,186
In June, Governor Andrew Cuomo proposed a bill to decriminalize public possession of small amounts of marijuana, which would have essentially codifed Kelly's memo into law. The measure enjoyed the support of Ray Kelly himself, Mayor Michael Bloomberg, all five District Attorneys from all five boroughs, the Patrolmen's Benevolent Association, and numerous civil rights groups.
After all, the combination of the "in public view" law with the NYPD's controversial use of stop-and-frisks had turned New York City into one of the marijuana arrest capitals of the United States, if not the world.
From a report by the Drug Policy Alliance:
In the last decade since Michael Bloomberg became mayor, the NYPD has made 400,038 lowest level marijuana possession arrests at a cost of $600 million dollars. Nearly 350,000 of the marijuana possession arrests made under Bloomberg are of overwhelmingly young Black and Latino men, despite the fact that young whites use marijuana at higher rates than young Blacks and Latinos.
In the last five years, the NYPD under Bloomberg has made more marijuana arrests (2007 to 2011 = 227,093) than in the 24 years from 1978 through 2001 under Mayor Giuliani, Mayor Dinkins, and Mayor Koch combined (1978 to 2001 = 226,861).
City Councilman Jumaane Williams was troubled by the report, saying, "This data shows that Commissioner Kelly's memorandum is not being enforced. For instance, the 240% increase in arrests in the last week of 2011 compared to the same period in 2010 is highly troubling. It also seems that much of this rise is occurring in police precincts which cover communities of more color, such as the 67th and the 70th in my district. What these statistics prove is that legislative action is needed to codify the memorandum once and for all."
But alas, the same month as it was proposed, the bill was struck down by Republicans in the state Senate. "We do not support decriminalization," Senator Dean Skelos, a Long Island Republican, told The Times. Skelos had previously said of the bill, "Just being able to walk around with 10 joints in each ear and it would only be a violation, I think that's wrong."
Cuomo spokesman John Vlasto responded to Skelos's comment, saying, "Carrying 10 joints in each ear would require some set of ears." He then added, "We look forward to working these issues through with the Senate in order to end an injustice that has been allowed to go on for too long."
It remains unclear, however, if Cuomo and Senate Republicans can or will come to an agreement.
For now, it seems marijuana arrests in New York will be an issue for the courts to decide.
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