The news coverage of U.S. District Judge Shira Scheindlin's January 8 ruling that the New York City Police Department routinely detains and arrests individuals without lawful basis through its Clean Halls program in the Bronx has been robust. In brief, her order demands that police officers have reasonable suspicion that a person is actually trespassing before arresting them for trespassing and requires the department to bring their training programs and materials into compliance with the law. The NYPD's failure to do so already, and its general scorn towards any suggestion of accountability, is yet another in a long line of examples of why independent oversight of the so-called "finest" is in order.
Scheindlin's are not radical suggestions, but her decision induced swift response from the NYPD nonetheless:
NYPD Commissioner Ray Kelly told the New York Times: "Today's decision unnecessarily interferes with the department's efforts to use all of the crime-fighting tools necessary to keep Clean Halls buildings safe and secure."
Paul J. Browne, the NYPD spokesman and, let's face it, a known liar, suggested to the Times that the ruling, had it been in place, would have prevented officers from making a recent arrest of an individual with a handgun protruding from his jacket pocket -- a clear misstatement as to the implications of Scheindlin's decision.
In fact, Scheindlin's ruling is quite conservative, asking merely that the NYPD follow the law -- a request too much, apparently, for Kelly, Browne and the like to bear. Stops, detentions and arrests can all continue, so long as the police can articulate a legally justifiable reason for their actions. The horror!
That the NYPD has taken the public position that it should have the authority to stop and arrest people without reasonable suspicion of any wrongdoing -- that the agency should not be limited by the law -- would be astonishing if the department had not taken this stance so consistently in the past.
When Bronx District Attorney Robert Johnson told the NYPD last fall that his office would stop prosecuting the types of trespassing arrests brought to light in this case -- including, for example, ones in which defendants had been arrested for trespassing inside their own homes -- Mayor Mike Bloomberg was equally obstinate:
"If you want to bring crime back to New York, this is probably a good way to do it."
This was Bloomberg's response to, again, the seemingly small level of caution suggested by Johnson's office: that police officers who made arrests would have to be interviewed by prosecutors to ensure that the arrest had been legal and warranted. Bloomberg went on to claim that Johnson was targeting a problem that did not exist. This contention is vividly rebutted in Scheindlin's ruling.
Really, it is Bloomberg and Kelly who are trying to turn back the clock. Quoting former Supreme Court Justice Thurgood Marshall, Scheindlin explained that the facts of this case: which describe the widespread detention and arrest of people based solely on their race and the neighborhoods and buildings that they frequent, "evoked images of other days, under other flags, when no man traveled... without fear of unwarranted interruption." That quote continues to suggest that there ought to be a distinction between life in the United States and in totalitarian states such as Hitler's Germany, Stalin's Russia and apartheid South Africa. Maybe Ray Kelly disagrees.
The mayor's office and the NYPD have argued that these sorts of stops prevent crime and, leaving aside for a moment the fact that there is no empirical evidence to support this position, it is noteworthy that they have given up defending the legality of these practices. Scheindlin's ruling Tuesday suggests that the stops as currently performed by the NYPD are indeed illegal and that the City of New York should be held responsible for deliberately refusing reform despite knowledge that its police department was routinely violating the constitutional rights of the city's inhabitants. It is no surprise that the city paid out $185 million in taxpayer dollars to settle lawsuits alleging officer misconduct in 2011.
Scheindlin notes that the NYPD had been put on notice as to the illegality of its practices as early as 2010, but had not taken sufficient steps to correct the problems. In fact recent training videos on the subject of Stop and Frisk misstate the law -- suggesting to the young police recruits who are subjected to them that officers have greater legal authority than they actually do under the law.
This is the problem elucidated by Scheindlin's decision: the NYPD was knowingly training its officers to act outside their legally defined authority. Scheindlin found that the deliberate inaction of policymaking officials -- such as Bloomberg and Kelly -- to correct well-known, illegal practices constituted a policy decision in its own right.
Throughout the growing controversy surrounding Stop and Frisk, Bloomberg has consistently suggested that the NYPD does not need independent oversight and that it has its own levers to ensure accountability. If Tuesday's ruling reflects anything it is how baldly false this assertion truly is. Left on its own, the NYPD trained officers to stop, detain and arrest people without reasonable suspicion that they had done anything wrong -- a clear violation of the law.
The stakes for those pulled into this net -- legally or illegally -- have never been higher, and thus it is essential that we get this right. Scheindlin notes:
The use of incarceration has increased, sentences have grown, the threat of lengthy incarceration has created new incentives to plead guilty, and the collateral consequences of a conviction -- on employment, housing, access to government programs, and even the right to vote or serve on a jury -- have become more common and more severe.
The NYPD has shown, time and again, that it will stretch its authority as far as it is allowed. The agency expanded its Clean Halls program, without oversight, from one solely focused on drug sales to its present state where, according to the NYPD's own legal bureau, sergeants and lieutenants believed (incorrectly) that it was legal to stop anyone in a Clean Halls building without reason for doing so. This was part of their training.
This echoes the expansion of the Stop and Frisk program citywide. It was once a tactic used only by the elite Street Crimes Unit, but after that group was disbanded because they killed too many civilians, every officer was granted the authority once held by only a few. Under Bloomberg's watch, Stop and Frisks have risen from 97,296 in his first year in office to over 700,000 last year.
Independent oversight is necessary. To those that would disagree I ask, who will enforce Scheindlin's ruling? The NYPD? The prosecutors who rely on the police for the voluminous arrest numbers required to keep them employed?
Just to be clear on what we are talking about here, what follows in full is an example of the type of arrest that Scheindlin would like to avoid -- the type of arrest that Bloomberg, Kelly and the NYPD have argued is essential for keeping the city safe:
On May 3, 2011, after finishing his work for the day as a security guard, Charles Bradley, a black fifty-one year old resident of the Bronx, took the subway to visit his fiancée, Lisa Michelle Rappa, as they had arranged the evening before. Rappa lived in the Bronx at 1527 Taylor Avenue. Bradley formerly lived with Rappa and had keys to her apartment, but following a disagreement Bradley had returned his keys. 1527 Taylor Avenue is a Clean Halls building.
When Bradley arrived at Rappa's apartment building, a young man who lived on the first floor and knew of Bradley's and Rappa's relationship let Bradley into the building. Bradley then walked up the stairs to Rappa's apartment on the fifth floor and knocked. Because Rappa is deaf in one ear, Bradley waited a minute or two. When there was still no response, he returned downstairs and left the building. Outside, he looked up toward Rappa's window.
While Bradley was standing on the sidewalk, an unmarked green police van approached and an officer in the passenger seat -- later identified as Officer Miguel Santiago -- gestured for Bradley to come over. After Bradley approached the van, the officer got out and asked, "What are you doing here?" Bradley explained he was there to see Rappa, and that he worked as a security guard. Bradley testified that the officer responded to his attempts to explain his presence by suggesting Bradley was acting "like a fucking animal," searched Bradley's pockets, then told Bradley to place his hands behind his back.
Once Bradley was handcuffed, the officer placed him in the van, where there were two other officers. While the van drove away, the officers began to question Bradley: "When was the last time you saw a gun? When was the last time you got high? When was the last time you bought some drugs?" After twenty or thirty minutes in the van, the officers stopped at the station house.
Bradley was taken into a room, stripped, and told to wait. He was searched in "inappropriate areas." For the next two hours, he waited in a cell with other people who had been arrested. He was then fingerprinted and given a desk appearance ticket and a date to appear in court to answer the criminal charge of trespassing.
Later, Bradley's defense attorney provided the Bronx DA's office with a notarized letter from Rappa stating that Bradley had been visiting her. "At that point in time," Bradley testified, "paperwork was submitted to me stating that the People of New York declined to prosecute.