Gotham Gazette

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Blackface Parodists Win In Court; Cops vs. Firefighters; Still No Dancing Allowed


Controlling the police may be the toughest management job there is. Every patrol study ever done shows that street cops work most effectively when they're given the discretion to respond instantly to trouble. As University of Chicago law professor Kenneth Culp Davis pointed out years ago, the police make far more discretionary determinations in individual cases than any other class of administrators. Culp said there was no close second. Yet police commanders need to know that cops are out there actually working productively and treating community residents fairly. The inevitable tensions are immense and made workable in New York only by the NYPD's evolving structure of carefully selecting, testing, and training recruits - and then supervising them under a chain of command. But in the end, decades of enhanced professionalization and reform mean little without one basic principle: trust. We all have to be able to trust that police officers -- armed and authorized by us to patrol our neighborhoods -- are honorable, decent, sensible people worthy of positions of trust.

The police commissioner's management authority has been undermined by federal Judge John Sprizzo's June 23 ruling, following a non-jury trial, that the city did not have the right to fire a police officer and two firefighters who rode in blackface and wore Afro wigs on a parade float in 1988. Police Officer Joseph Locurto and the two firefighters were punished, wrote Sprizzo, "in retaliation for engaging in protected speech." This "protected speech" involved being part of a float with the banner "Black to the Future: Broad Channel 2098," which the defendants said was a parody of black racial integration into the mainly white Broad Channel neighborhood. They threw watermelon and fried chicken at parade goers and, as the parade was ending, a firefighter grabbed the back of the truck and dangled himself toward the ground, re-enacting the brutal dragging murder of a black man in Texas two months earlier. (You can decide for yourself what you think of the activities on the float by watching the video offered by ABC News/Channel 7's web site.)

This activity constituted protected speech "on a matter of public concern," wrote Sprizzo, because the float sought "to comment on the future racial integration of Broad Channel" and to win the prize for the funniest float, "a prize the group had won in the past with other ethnicity-parodying floats." The group's earlier efforts included "The Gooks of Hazzard," which parodied Asian Americans, and "Hasidic Park" about Jewish Americans. Sprizzo rejected the city's claims about the management consequences of such public behavior going unpunished, writing that this "concern was unreasonable and, in any event, insufficient, as a matter of law, to outweigh plaintiff's constitutionally protected speech rights." The men are all seeking reinstatement in their jobs, back pay, and money damages. A hearing will be scheduled on remedies in the case. Corporation counsel says it will appeal.

COPS AND FIREFIGHTERS CLASH AFTER STUPID TRICK CAPER

Cops and firefighters were also in the news for another unfortunate conjunction of the two agencies. An inept burglar who had lowered himself into a chimney in Luigi's Italian Restaurant in Queens started screaming when he found himself stuck. A passerby called 911, which dispatched regular firefighters and police officers from the local 115th precinct, as well as members of two rescue units, the police Emergency Service United and fire's Rescue 4. Once on the scene, rescuers from the two agencies disagreed on how to extract the burglar from the chimney. Firefighters wanted to pull him out from above, while the police decided to rip out the wood paneling covering the shaft inside the restaurant, hacking through a layer of bricks. During the rescue, the police sealed the restaurant as a crime scene and ordered firefighter John Gaine to leave, resulting in a fight and Gaine's arrest. "Well, it's the kind of thing you simply hope would never happen," said Fire Commissioner Nicholas Scoppetta. Mayor Michael Bloomberg said that the police and fire commissioners are meeting to sort things out.

The daughter of the restaurant's owner had suggested pouring olive oil into the shaft to grease the burglar and pop him right out without smashing walls, according to the New York Times. On reflection, though, she decided the cops were right to ignore the idea: "Virgin olive oil is expensive. My mother would have been annoyed."

Luigi's owners told New York 1 that they had been watching "Stupid Acts Caught on Tape" when the whole caper started. They also said they were left with rubble at their restaurant. "Not I've got a hole, destruction, and a mess," said co-owner Josephine Napolitano.

NO DANCING ALLOWED-STILL

Supporters of dance in New York -- and who isn't? -- were elated when they heard that the city's Department of Consumer Affairs was going to be holding hearings on New York's repressive 77-year-old cabaret laws on June 24. Representatives of Legalize Dancing jubilantly predicted that the city's days of regulating, and banning, dancing were over.

The hearings proved to be no such thing. Formal and stale in format (all questions from the audience had to be submitted in writing), the hearings mainly provided a forum for a few important nightclub owners and representatives to complain about their main beefs. Thus David Rabin, owner of the humongous but fully licensed Lotus and president of the New York Nightlife Association, took the opportunity to protest the mayor's anti-smoking legislation, which nearly everyone in the industry regards as a lethal, business-killing law. One of these days New York is going to end up looking like Cleveland, he told Newsday's Dennis Duggan.

He also noted that the main problem for most neighborhoods is what he called "outside noise," rather than the noise from music and dancing in the club itself. The outside noise problem has been greatly exacerbated, of course, by the smoking ban, since smokers now congregate in the streets. Rabin said, however, that no nightclub owner calls the cops because that will only produce a "disorderly premise" ticket, which will then be used against the club's license renewal. Does Yankee Stadium get tickets, he asked, for disorderly patrons? Or Madison Square Garden? Not at all. Both of these are patrolled by cops -- some on duty, some as part of the NYPD's paid detailed unit of off-duty cops. Rabin would like nightclubs to be able to hire off-duty cops (preferably in uniform) to patrol outside the clubs, a proposal supported warmly by the police union, the PBA.

Under the state's Alcoholic Beverage Control Act, which forbids cops from being associated with alcohol sales, police officers are now prohibited from doing security work outside bars.

Sean Schwartz, owner of Halcyon, which lacks a cabaret license, argued that dancing should not be part of the equation to begin with. "It was wrong 77 years ago," said Schwartz, and wrong a few years ago for Giuliani to dust off and enforce the cabaret laws. Indeed, so far this year, the city has padlocked 11 places that permitted dancing without a cabaret license. Between 1999 and 2003, the city had closed 20. According to the New York Times, the Giuliani administration tended to remove or threaten places that held licenses as punishment for a range of violations, from inadequate exits to drug use by patrons.

Passed in 1926 to regulate (some historians say to suppress) jazz in Harlem, the cabaret laws targeted the "social mixing" that seemed to accompany jazz, says NYU Professor of Law Paul Chevigny, author of "Gigs: Jazz and the Cabaret Laws in New York City." The cabaret laws restrained jazz by requiring that a hard-to-get cabaret license be held by any restaurant that had live music.

In May 1986, the Musicians Union, represented by Chevigny, sued on First Amendment grounds. After a five-year legal battle, New York Supreme Court Judge David Saxe declared the three-musician rule unconstitutional, ruling that live music had to be allowed in zones permitting bars and restaurants. It was a great triumph, but the suit left alone the regulation of dancing, which remained subject to the cabaret license requirement.

Thus restaurants that allow dancing are still held to more stringent zoning requirements than other restaurants, which are permitted in all commercial and manufacturing zones. With their odious history, the cabaret laws have frequently gone unenforced. The Dinkins administration, for example, ignored them altogether. They were resuscitated, however, by the Giuliani administration, which saw them as a potentially powerful tool for shutting down huge, noisy, drug-infested nightclubs.

Relief from the city is not on the immediate horizon. Gretchen Dykstra, the consumer affairs commissioner, said that unless the laws change, which is doubtful, members of the nightlife task force (called March for Multi-Agency Response to Community Hotspots) will continue to crack down on unlicensed cabarets.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

 

Prosecuting The Batterer Without The Victim's Approval


For years, Angela R. (as she is named in court records) had reported being beaten, attacked, dragged up and down staircases by her hair and even burnt by Victor Santiago, the man to whom she says she's married "by love," and with whom she has a child. She called 911 and visited hospital emergency rooms over and over. Police officers have heard him threaten to kill her after smashing all the furniture in their home. But like countless other victims of intimate violence, when the moment of truth had come -- testifying in open court -- Angela had declined to prosecute and the criminal cases against Santiago were dismissed.

Despite three decades' worth of changes in public awareness and policy since violence against women became a priority of the women's movement, victims still fear prosecuting their husband/boyfriend assailants. A daunting, ongoing problem for the criminal justice system and the women themselves is the victim's unwillingness or inability to participate as a complaining witness after she has called the police, and especially when she is needed to testify at trial.

But in the recent case of People v. Santiago, the Manhattan District Attorney and Acting Supreme Court Justice Jeffrey Atlas took a new approach -- the victims' prior statements about her beatings were allowed to be used as court testimony without her approval.

Angela had testified behind the closed doors of the grand jury, after an assistant district attorney assured her that the accused (Santiago) is never present at this stage. But when it came to the trial stage, when Santiago would be present, Angela refused to testify, and went so far as to threaten that, if forced to testify, she would declare that all the complaints had been fabricated by the police and prosecutor and even by herself. She enumerated her reasons -- she was ashamed to tell her story and be judged by other people; if Santiago were in jail, she could not afford to support their daughter; she loved him and no longer wished to press charges. Without Angela's testimony, Santiago could probably not be convicted.

The district attorney asked the judge for permission to read the grand jury minutes to the trial jury, an unusual criminal procedure, normally possible only if the complaining witness -- Angela R. -- has become "unavailable." Some domestic violence cases have been prosecuted through photos and medical records, but relying on the domestic victim's prior statements would be a new development.

At a pretrial hearing, where witnesses included an expert in battered women's syndrome, Angela R. told Justice Atlas that she and Victor Santiago had been together for "ten beautiful years." Santiago blew kisses to her in the courtroom and insisted that she is the one who hits him, but that he is a "forgiving kind of guy." The judge called much of the couple's testimony "patently incredible," and, in a decision that attorney Dorchen Leidholdt, director of Sanctuary for Families' Center for Battered Women's Legal Services, calls "extraordinary," Justice Atlas concluded that Santiago's violence, threats, chicanery or other acts of misconduct caused Angela R. to become "unavailable." The judge ruled that the prosecutor should be allowed to present to the trial jury her prior statements, including those she had made to the grand jury.

According to Leidholdt, "this decision moves (domestic violence) jurisprudence forward in a really important way," recognizing that domestic violence is of a completely different character than stranger-on-stranger crimes in which there can be a variety of reasons for recanting testimony or declining to proceed for reasons which are not based on fear, threats or witness tampering. "He's been abusing her for years, then calls her 100times from Riker's Island where he's being held. He cannot be allowed to benefit from his own outrageous behavior," she adds.

Brooklyn Law School Professor Elizabeth Schneider, author of BatteredWomen And Feminist Lawmaking (Yale) calls the decision very valuable in the specific facts of this case, but notes that "doing anything that is not what the victim wants is a problem." The issue, Professor Schneider says, is "whether you go with the woman's wishes or the evidence that she is recanting only out of fear or threats." Fear and threats are not the only problem. As Dr. Ann Wolbert Burgess, an expert on battered women's syndrome testified, the abusive male can also be seductive, romantic and exploit the victim's fantasies that everything will be fine.

Whatever the reasons for the recantation, Leidholdt applauds the decision for "not forcing Angela R. to face down the man who has repeatedly brutalized her." However, Carlin Meyer, professor of family law at New York Law School, while acknowledging that "hitters don't hit just one woman," and that therefore society -- not just Angela R. -- needs to be protected, adds, "but the state is never going to protect her."

Professor Meyer believes that "No one walks in the victim's shoes and she should be allowed to assess the potential danger to herself, the benefits and burdens, that flow from going forward with a complaint. The state (and the prosecutors who act for it) can't know if she's better off with her batterer working and not in jail. It's paternalistic for the state to force her to testify and act as if it knows better." She points to the possibility of a "slippery slope" where hearings might be skipped, experts disallowed and the rights of both parties might be jeopardized.

Leidholdt disagrees: "This decision," she says "is truly empowering."

Emily Jane Goodman is a New York State Supreme Court Justice

 

 

Things Go Seriously Wrong: Police Issue Report On Harlem Raid, Lemrick Nelson Gets Off Lightly, Murder Is Up Again. Also: Police Spying


POLICE COMMISSIONER'S 24-PAGE APOLOGIA

In a remarkable break from past practice, Police Commissioner Raymond Kelly has issued a 24-page official report assigning blame in the catastrophic May 16 New York Police Department raid on the apartment of a church-going, 57-year-old woman, Alberta Spruill. At a tense 3:00 p.m. press conference on May 29, Kelly said, "Deficiencies were found in procedures and practices of the overall warrant process. Mistakes were made. We all make mistakes. It's a terrible tragedy that Miss Spruill lost her life." (Excerpts on Kelly's comments, including his defense of warrants and his pledge for reform, can be heard on Newsday's web site.)

The raid could hardly have gone more wrong. With no evidence of wrong-doing beyond the word of a drug-using known criminal, the NYPD secured a no-knock warrant to invade Spruill's apartment. At 6:15 a.m. on May 16, they executed the warrant by breaking down Spruill's apartment door as she was dressing to go to her city job, which she had held for 29 years. Incorrectly anticipating both resistance and a pit bull, the police detonated a flash grenade -- also called a concussion grenade -- which is used to blind and stun. The police realized almost immediately after handcuffing Spruill that the tidy apartment did not fit the informant's description of a messy place divided by a dirty curtain. But the damage was done. Spruill went into cardiac arrest and was pronounced dead at 7:50 a.m. at Harlem Hospital. Her death was ruled a homicide by the medical examiner.

The snarl of police errors, arrogance, and incompetence recorded in Kelly's report is stunning. Almost every decision leading up to the raid seems to have been flawed, sometimes inexcusably. Commanding officers did not confer with one another or share crucial information. Supervisors for the Emergency Service Unit, which led the raid, didn't know that NYPD policy required that flash grenades be approved by a top boss. Although several officers had serious doubt about the reliability of the informant, they did not relay this information to others. No one watched or canvassed Spruill's apartment to see if it seemed a likely household to shelter drugs, guns, and attack dogs. The drug dealer whose cache of drugs and weapons was being sought in the raid had in fact been arrested four days earlier on an assault warrant -- but precinct officers kept this information to themselves.

The brass at police headquarters are ignorant of much of what goes on in the field. The NYPD lacks a central database on informants and their reliability, says Kelly, as well as any central way of assessing the success or failure of executed search warrants, even though several such warrants resulted in disastrous raids on innocent families during the Giuliani administration. Kelly promised he would establish a database to track search warrants to uncover patterns of problematic searches.

"What we're doing," said the commissioner, "is seeing to it the best we can that something like this never happens again." Let's certainly hope so. Yet at a minimum this incident calls into question the reality of what journalist Michael Massing once called "The Blue Revolution," the idea that CompStat plus organizational innovations and changes in police culture had transformed the NYPD into an efficient crime-fighting machine.

90-DAY TRUCE ON CIVIL LIBERTIES OVER

As if to drive even conservative and/or police-friendly New Yorkers into the arms of the New York Civil Liberties Union on the issue of police spying, the NYPD has been asking political protestors such potent questions as "What kind of political sentiments do you hold?" and "What political organizations do you belong to?" as well as "Don't you think it was necessary for us to get involved in World War II?"

In hearings before federal judge Charles Haight in Manhattan, civil liberties groups are asking that the 3-month-old modification to the Handschu Agreement, which since 1985 had restricted police spying, be modified again to forbid such NYPD questioning. Judge Haight was unhappy with the police, saying, "I find this most recent activity troubling." The NYCLU is hopeful that the NYPD's overstepping will encourage Judge Haight to reconsider his February expansion of NYPD surveillance powers.

CROWN HEIGHTS AND NYC'S CYCLES OF CRIME

What are we to make of the Nelson Lemrick debacle? The familiar details remain chilling. On Aug. 19, 1991, a 7-year-old black child, Gavin Cato, was killed (and another child severely injured) in Crown Heights after being struck by a Jewish driver speeding through a red light. Several hours later and several blocks away, then 16-year-old Lemrick Nelson joined a mob of blacks shouting "There's a Jew! Let's get the Jew! Kill the Jew!" while pursuing a 29-year-old rabbinical student, Yankel Rosenbaum. Nelson stabbed Rosenbaum, who later died of internal bleeding in the Kings County Hospital emergency room, where doctors had failed to notice the deep wound. Before he died, Rosenbaum identified Nelson as the assailant who stabbed him.

Yet the practical outcome of the latest of Nelson's three jury Trials -- two federal, one state, all held in Brooklyn -- is that Nelson will spend no more than an additional year in prison. His 1997 conviction on federal civil rights violations in his second trial had resulted in a prison sentence of 19-1/2 years. But a federal appeals court reversed the conviction after concluding that the trial judge had improperly balanced the number of Jews and blacks on the jury. The federal prosecution followed a state trial in 1992 in which Nelson was acquitted by a jury which concluded that he had been framed by a racist police force. Jurors later notoriously celebrated with Nelson and his lawyers.

You might think that by this time everything has been said, but it hasn't been. For one thing, the historical context of these terrible events has been missing. Rosenbaum's 1991 murder occurred at the very end of what had been a period of unusually violent crime in New York, what UCLA historian Erik Monkkonen has called "a rogue tidal wave of violence in the last quarter of the twentieth century." For most of its history, New York City had a far lower crime rate than the nation as a whole -- until 1958, when violent crime started heading up. What we commonly think of as New York's high crime rate is in fact a historical anomaly. Now that crime has been in a downward spiral for 11 years, New Yorkers need to keep it that way.

But Monkkonen argues that in past cycles, once some "lower level of violence had been achieved, the mechanisms for control and the value of peace get forgotten, and a slow rebirth of violence begins." As Lemrick Nelson begins serving his minimal sentence, will it happen that crime will start back up? In other words, just as his crime occurred at the end of a cycle of high violence, will his punishment signal the beginning of a new cycle of serious violence? Already, rape has been steadily rising for months, and murder has also been up.

Nelson himself is part of a disturbing historic trend, the large increase in killings by youngsters in New York. The proportion of killers younger than 18 quickly rose from about nine percent in 1976 to a peak of nearly 16 percent in 1993. When these killers are released, as Nelson will be after a short stint, they have decades of potential violence ahead of them. Thus an overly mild justice system can fuel an upward spiral of crime.

Despite admitting he had stabbed Rosenbaum, Nelson was found not guilty of any charges by the first state jury and not guilty of the most serious charge by the latest federal jury. This leniency, according to Monkkonen's 19th century data, is typical of the tendency of New York juries to give offenders the benefit of the doubt -- a tendency that has often led to justice but in this instance to grave injustice. "In a city filled with bars, rowdiness, and a good deal of physical violence, the all-important coroner's juries often placed themselves in the offender's situation and found the deaths to be accidental," says Monkkonen.

Indeed, although about half of all 19th century murderers in New York were arrested, less than half of these were tried, and only about half of these were convicted. Of the 10.7 percent convicted, three-fourths were sentenced to fewer than 7 years in prison, and a large proportion of these were pardoned. Leniency was the "central element" of the criminal court system.

There is also a historical link between major riots and personal violence, according to Monkkonen's data. Most of the city's serious riots have occurred during times of high violence. He believes, though his data cannot prove, that while some rioters are rationally motivated, many violent individuals simply use the crowd as a mask, becoming more violent in riots. But the real lesson is that a violent culture produces far greater violence during rioting than a less violent culture does.

What this means for the city's future is that keeping violent crime down is the nonnegotiable base of the city's well-being. If violent crime heads up seriously, it will destroy New York. It almost did in our recent memories. And here is the latest bad news: the NYPD's crime statistics show that 215 people were murdered in the five boroughs between January 1 and May 25. This is up from 202 murders in the same period last year.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

NYC'S Blue Laws


 

When the Harlem store Palace Liquors opened one particular day this week, it was a moment that some New Yorkers had wanted for more than three centuries. That is because the day it opened was Sunday. New York liquor stores have never before been allowed to open on Sunday.

But at Sanchez Liquors farther uptown, the shutters remained drawn. “Sunday is the day for resting,” said shopkeeper Francisco Calcaño. “Besides, if the store is closed, that means less liquor on the streets on a Sunday, when people are walking with their families.”

The long-standing ban on Sunday liquor sales was lifted as part of the state legislature’s budget package. The lawmakers reasoned that allowing liquor stores to open on Sunday (even though they will have to choose another day to close each week) will mean more alcohol sales, and more taxes and fees for the state’s coffers.

Some may think that this finally means an end to what are called the blue laws, which have regulated Americans’ moral behavior, especially what people can or cannot do on a Sunday, since the 17th century. Things certainly have changed since the time when even a Sunday baseball game was considered immoral -- and outlawed.

Indeed, the people opposed to allowing liquor to be sold on Sundays seldom even mention the word morality. Governor Pataki vetoed the Sunday liquor sales bill, but it was unlikely that he vetoed the law for moral reasons, especially considering his substitute proposal to raise funds for the city -- installing video slot machines in the city’s off track betting parlors. In any case, the legislature overrode Pataki’s veto.

Still, blue laws have not now faded into the quaint past. There are still laws regulating people’s private lives or freedom of choice – and not only ones that are outdated and unenforced. Some would say that there is at least one new one, promoted by our billionaire bachelor mayor – a prohibition on smoking indoors.

HISTORY OF BLUE LAWS

New York’s law banning liquor sales on Sunday has its origins in Puritan America and even the Roman Empire. “The earliest indication that I was able to uncover about a specific law prohibiting activity on Sunday comes from the Roman emperor Constantine in the year 321,” said David Laband, author of Blue Laws: The History, Economics, and Politics of Sunday Closing Laws. The law reads in part, Laband said, “Let all judges, and all city people, and all tradesmen, rest upon the venerable day of the sun.”

Regulations against Sunday activities were in place in King Charles the Second’s England, as well as in the seventeenth-century Puritan colonies in America. Many reference books say that the laws were called “blue” because they were printed on blue paper, but historians have said that the term is more likely to be derived from the use of the word “blue” to mean “rigidly moral.”

A 1695 colonial New York blue law read, “Be it therefore enacted that there shall be no traveling, servile laboring and working, shooting, fishing, sporting, playing, horseracing, hunting, or frequenting of tippling houses, or the use of any other unlawful exercises or pastimes, by any of the inhabitants or sojourners within this province, or by any of their slaves or servants, on the Lord’s day.” The punishment for any of these offenses was a fine of six shillings or three hours in the stocks.

Other colonies had even stiffer blue laws. If someone broke Virginia’s Sunday restrictions three times, they faced the death penalty. In colonial Boston, Captain John Kemble was arrested and put in stocks for two hours for kissing his wife on the Sunday that he returned home from three years at sea. In 1789, President George Washington was on his way from Connecticut to attend church in New York when he was charged with a blue law violation for unnecessarily walking or riding on Sunday.

In New York, regulations against Sunday activities continued into the next century, as upstate (largely Protestant) Republican lawmakers supported laws that did not make sense for the Jewish and Catholic residents of New York City. The sale of liquor on Sundays was prohibited, and both professional and amateur baseball games were against the law. By the1890s, “there was a long tradition in the New York legislature of enacting legislation to enforce morality in the city, wrote Christopher Finan in Al Smith: The Happy Warrior, his biography of the1920s governor. “The interference of upstate Republicans in both the administration of New York City and the social life of its citizens was deeply resented.”

In 1907, New York City Democrats unsuccessfully introduced two bills in Albany to change the law prohibiting baseball on Sundays. Then-state Assemblyman Al Smith, according to Finan, spoke out against the Sunday ban on the floor of the state legislature, saying that it was better for young men to be playing baseball than “be driven to places where they play “Waltz Me Around Again, Willie.’”

In 1917, the New York Giants and Cincinnatti Reds played the first Sunday major league baseball game at the Polo Grounds. The managers of both teams were arrested for violating the blue laws. Sunday games became legal in New York two years later, but the bar on Sunday liquor sales became an all out ban during prohibition. A new law banning Sunday sales was drafted at the end of the prohibition era, and survived until this month.

LIQUOR STORES ON SUNDAY

The new law doesn’t do away with the state’s blue laws completely. New York’s liquor stores may be able to open on Sundays, but will have to close one other day a week. Mark Anderson, deputy commissioner of the New York State Liquor Authority, said that in order to enforce the one-day-a-week closing, he expects that each store will need to include the day that they will close each week in their license. The law will sunset in five years, so Sunday sales may be banned again. It also limits the number of state liquor licenses to the ones currently in place. Grocery stores are still not allowed to sell wine, and can only sell beer on Sundays after noon.

Liquor store groups have lobbied on both sides of the issue. The Distilled Spirits Council of the United States, which lobbied hard for a lift of the Sunday ban in New York, sponsored a study finding that Sunday openings could bring in an extra $26.7 million a year in taxes and fees for New York State, because Sunday has become a big shopping day. “This is all about choices,” said Lisa Hawkins from the Distilled Spirits Council, who once told Business Review that she should have the right to “have margaritas with my fajitas on Sunday night.”

Small owner-run liquor stores have often campaigned to keep Sunday closings, saying that they don’t have the staff to open every day, but would be forced to open in order to compete with larger stores.

The new law answers some of their concerns, by mandating that all stores close at least one day a week. Francisco Maracallo, the manager of the Washington Heights store Sandy Liquor, is looking forward to the good sales that he thinks Sunday will bring, and hopes to work out a plan with other liquor stores in the neighborhood, so that each one closes on a different day.

Religious groups have said that not only does banning liquor sales on Sunday limit alcohol abuse, it is a way to preserve the &#14

Litigation Over World Trade Center Clean-Up Payments


Within hours after the collapse of the World Trade Center towers, the New York City Department of Design and Constructionagreed with four main contractors to begin the daunting clean-up. Due to the severity of the situation the department was unable to follow its typical construction contract guidelines. Most importantly, the department did not sign a written contract setting prices for how much money it would pay the contractors and their subcontractors for the work. To date, the department and the four main contractors have not inked a final contract as several issues, including liability insurance, remain in dispute.

When clean-up of the site ended on May 30, 2002, the department began reviewing subcontractors’ invoices and bills for the work they had already done and amounting to over $650 million. Without a written contract setting specific prices for specific jobs, the department is left to determine which bills to pay and at which rates. As the department determines that a particular invoice is excessive and decides not to pay the invoice, there no doubt promises to be subcontractors who will challenge that determination. In what may be the first of many to come, on April 29, 2003 New York County Supreme CourtJustice Diane S. Lebedeff decided that the department has the authority to review and reduce invoices that it deems excessive.

Subcontractor Submitted High Invoice

Tully Construction, Co., one of the four main contractors, had been working on a major State Department of Transportation construction project on lower Route 9A (West Street) on September 11th and was one of the first at the site. Tully, like all of the main contractors, entered into agreements with subcontractors for equipment. One of those agreements was with Massachusetts-based Great Northern Site Corporation for the lease of three (and later four) heavy excavating machines.

Tully and Great Northern agreed that Great Northern would be paid approximately $189 per hour per machine, amounting to approximately $100,000 per machine per month.

Shortly after the machines were delivered to the site, Tully and Great Northern agreed that the rates for the excavating machines would be subject to the Department of Design and Construction’s approval.

By June 2002 the department had issued two memos stating that subcontractors would be paid for their work at a rate of 75 percent of the rate found in the construction industry’s standardized suggested price index, the “Rental Rate Blue Book for Construction Equipment.” The Department would only pay above 75 percent of the Blue Book rate if the subcontractor could provide documentation indicating that the rate was “usual and reasonable pre-September 11, 2001.” The policy, the department stated, was to prevent “’opportunities for unscrupulous individuals to enrich themselves’ in the wake of September 11th.”

Great Northern’s charge for each of its machines at $189 per hour rate came in at approximately $45 per hour higher than the Blue Book rate for similar machines. So the department asked Great Northern for proof that it charged as much per hour before September 11th. When Great Northern failed to submit the documents the city had requested, the department reduced the company’s rate to $108 per hour.

Great Northern sued. It claimed the city agency did not have the authority to change the company’s rates, since the equipment was being put to use on property of the Port Authority, which was created by the States of New York and New Jersey. It said it was entitled to a public hearing, because the city had created a new rule.

Justice Lebedeff dismissed Great Northern’s complaint on April 29, rejecting all its arguments. The city had a right to take reasonable steps to make sure it is not overcharged, the judge ruled, and could so on the site owned by the Port Authority because the September 11th attacks “affected an area far beyond the site.”

Controlling The Floodgates

Justice Lebedeff’s decision has the potential to save the city millions of dollars in overpayment and/or fraud. The city is currently reviewing millions of dollars in unreconciled invoices billed from the World Trade Center clean-up. Pursuant to Justice Lebedeff’s decision the Department has the authority to review these invoices and ensure that the city is not overpaying or paying false claims.

In reviewing the invoices the Department has been working with the Department of Investigations and an auditor, KPMG, who will supplement the auditing staff to reconcile paperwork and then provide it to the Federal Emergency Managementbefore the end of the year. Upon FEMA’s review, the city will be reimbursed for its payments.

As the department makes a determination as to the appropriate rate in each of these invoices, there promises to be litigation, which could prolong the end of the clean-up phase and put off the development.

Great Northern Site Corporation v. Department of Design and Construction, Index No. 122546/02 (Lebedeff, J.) (N.Y.Cty.Sup.Ct.) (Apr. 29, 2002).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A Look At Nightclub Mayhem


New Yorkers who think that the city has seen a lot of murders this year are right. Police department statistics(in pdf format) show that 151 people were murdered in the five boroughs between January 1 and April 13, up from 138 over the same period last year. This 9.4 percent year-to-date increase in murders parallels a 6.2 percent increase in rape. The city has had 561 reported rapes so far this year, up from 528 last year. Other major crimes have declined: felonious assault is down 9.8 percent through mid-April, and burglary and grand larceny auto are both down 15.2 percent. The rise in murder is particularly worrisome to analysts, however, because it is the one crime that everyone agrees to be recorded accurately.

MURDER UP

It has been a murderous few weeks. February 8 was the first night of a murder spree that killed four men (a fifth was wounded) in Brooklyn and Queens. Saying he had targeted Middle Easterners to avenge September 11, a Brooklyn man confessed and was indicted on multiple counts by a grand jury on April 11. On April 13, Dana Blake, a bouncer at Guernica on Avenue B, was stabbed to death after a melee involving smokers. A Guernica patron confessed, and has been charged. On April 24, Lyric Benson, a beautiful, 22-year-old aspiring actress, was shot to death in front of her apartment by her former fiancé as her mother, who had opened the door for her, looked on in horror. The fiancé then turned the gun on himself.

In the early morning of April 25, a rap star and his entourage got into a violent argument with a car full of apparent strangers following a traffic accident outside Centro-Fly, a hip-hop club at 45 West 21st Street. Rapper Freaky Zeeky was shot twice and run over by a car. His bodyguard was killed. "This has nothing to do with rap," a man who called himself a close friend toldthe New York Times. "Just two groups of men who got into trouble."

But the two groups of men got into trouble because they had driven to Chelsea to go clubbing.

NEW YORK'S TROUBLED NIGHTLIFE

Residents of Chelsea have complained for years about the proliferation of nightclubs in their neighborhood. Even as many notorious clubs have been shut down, the hip-hop clubs that have opened around the Flatiron Building have added new problems to the old. Certainly the mix of alcohol, drugs, and late-night partying is volatile, and few neighborhoods want drug- and alcohol-fueled youngsters roaming their streets.

The Bloomberg administration has continued the Giuliani administration's campaign against nightclub violations. After a 22-month drug investigation, the NYPD closed two clubson February 7-the Sound Factory, at 616-620 West 46th Street, and Exit, at 610 West 56th Street.

The police said both clubs had flourishing drug trades, particularly in Ecstasy (methylenedioxy methamphetamine or MDMA) and Special K (ketamine), but also in cocaine and marijuana.

Exit was re-opened March 21 by order of a judge, who reprimanded the police for wasting "tremendous resources" on a "less-than-productive probe." The police are very angry, according to the Daily News, the only paper to cover the reopening of the "drug-fueled dens."

But Exit's problems persist. On April 19, one of its patrons was arrested for harassing other patrons. It turned out that he was already facing charges for brutally beating an off-duty New York City police officer at a Jersey City karaoke bar in November. The cop was left paralyzed, according to the Daily News. Police said the arrested patron was strung out on Ecstasy, one of the drugs they had been able to buy so readily during their investigation.

Clubs like Exit that handle 10,000 patrons a weekend are bound to attract trouble, even when they are well run. They need sophisticated security, always a very limited, expensive commodity. Club owners recently asked the Bloomberg administration to allow them to hire off-duty cops, but were rebuffed. As former Tunnel and Limelight owner Peter Gatien once complainedto the New York Press, "The industry is singled out for a standard that no one can live up to. When you have an event at Madison Square Garden, you have 300 cops helping people. At nightclubs, they set roadblocks to ruin your business."

Yet the nightlife industry is crucial both to New York's image and its economy. A 1998 study by Audience Research & Analysis found that music and dance clubs contribute about $2.9 billion yearly to the city's economy, directly employing over 4,700 people. The number of clubgoers-24.3 million annually-exceeds the number of people going to Broadway acts, sports events, the Empire State Building, and the Metropolitan Museum of Art combined. Over a third of clubgoers are from outside New York, and 89 percent of them say that dancing or seeing a band was their main reason for coming to New York.

SMOKING BAN ADS FUEL

Because of the immense difficulties facing anyone trying to get a New York cabaret license, club sites often have multiple lives. Any site that comes with a cabaret license is disproportionately valuable. Thus Guernica, where bouncer Dana Blake was killed, is attempting a new life as a sedate, upscale club. But it is housed in the space that once held Save the Robots, a glamorous but infamous after-hours bar that didn't make it.

Guernica and the club scene in general had plenty of problems before Mayor Bloomberg's smoking ban. Now club and bar personnel are responsible for enforcing a smoking ban under the most trying of circumstances. Many of them don't really believe in it since the ban is causing them loads of trouble, costing them money in business and tips foregone. Income in bars has dropped by 20 percent since the ban went into effect on April 1, says the Economist.

Club owner David Rabin, president of New York Nightlife Association, toldCBS News that "We predicted all of it. We predicted worse, and I think worse is coming."

And now the ban has cost bouncer Dana Blake his life. The three siblings who were first charged with Dana Blake's murder toldpolice that their father was a famous gangster. He had directed a secretive cabal of businessmen involved in drug deals, gambling, extortions and contract killings in Chinatown. He cooperated with federal investigators after being indicted in 1995 for ordering three murders and conspiracy in a fourth. The Manhattan D.A. refused to prosecute the three siblings. One of their friends has since been arrested and charged.

RAPE KEEPS GOING UP

The city has averaged four reported rapes per day since January 1, about 9 percent more than last year. That's the bad news. But the city has also averaged four arrests per day, which is an increase over last year, although NYPD sex crimes chief Susan Morley has not specified by how much. Urged on by Morley and the NYPD, the City Council has submitted a resolution to the state legislature asking it to pass a bill extending or abolishing (Governor Pataki's preference) the 10-year statute of limitations on unsolved rape cases.

The NYPD says it has reviewed two-thirds of the 13,000 rape kits in its backlog, and has produced almost 1,000 DNA matches. Morley says they have matches back to the late 1980s-which will do no good unless the legislature extends the statute of limitations. Surely if ever an extension was needed it is this.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mental Health Care For Released Inmates


The city will for the first time provide mental health care for mentally ill inmates after they are released from jail, thanks to an agreement approved by New York County Supreme Court Justice Richard F. Braun on April 2, which comes after a lawsuit filed by mentally ill inmates themselves.

New York City jails yearly house 33,000 mentally ill pre-trial detainees, individuals not convicted or sentenced of a crime. The average stay in jail for these inmates is as long as 43 days.

While in jail, the city provides these inmates with mental health care and treatment. The care ranges from in-jail, outpatient treatment to placement in segregated mental health units or psychiatric wards. The inmates' treatment can include psychotropic medications and individual or group therapy.

Prior to the settlement, the inmates' care and treatment was terminated upon their release. Once released, the inmates were not provided with care, treatment, government assistance, housing referrals or other assistance to make the transition to society.

Instead, the released mentally ill inmates were taken by bus to Queens Plaza subway station between 2:00 and 6:00 am, given a buck, fifty and a roundtrip Metrocard.

In 1999, several of the inmates who were receiving mental health care during their confinement sued to stop this practice on their own behalf and all other mentally ill inmates.

The city fought the suit, using various legalistic arguments. It claimed that the inmates did not have legal standing in which to sue, since, it argued, even if the city was breaking the mental hygiene law, which required treatment and transition upon the inmates' release, only the state attorney general had the right to enforce that law. The city also claimed that the mental hygiene law applied to developmental centers, patients at psychiatric centers or patients at certain psychiatric inpatient services, but not to city jails.

In a curt decision on July 14, 2000, Justice Braun repudiated the city's arguments. Yes, he ruled, mentally ill inmates do have the authority to challenge the city's policy and enforce the mental hygiene law. And, he ruled, enforcing the mental hygiene law to prevent mental illness is a matter of "public concern" applicable to and enforceable by all, including those incarcerated.

The court ordered the city to continue to provide care to all inmates older than 18 suffering from a mental illness, if that inmate is unlikely to survive safely in the community without supervision, has a history of failing to comply with treatment, is unlikely to participate in the recommended treatment, may relapse, and would benefit from assisted outpatient treatment.

Justice Braun rejected the city's argument that the mental hygiene law did not apply to city jails. The state law, and city regulations, Justice Braun found, specifically provided for intervention and transitional services to released inmates at correctional facilities. The city appealed and the Appellate Division, First Department, the state's intermediate appellate court, upheld the decision.

This decision led to a settlement on January 8, 2003 between the parties, which the court approved on April 2nd.

Under the settlement, the city must provide discharge planning for inmates released from custody. Qualifying inmates are entitled to receive a wide range of mental health treatment and services upon release, including medication, referral to programs, substance abuse treatment and case management service. As part of the discharge planning, qualifying inmates also receive help in submitting applications for Medicaid, food stamps, social security, veteran's benefits and other public assistance benefits. The city has also stated that it would, "in most cases," release mentally ill inmates during daylight hours.

The settlement is valid for five years. During that time, two independent monitors, one chosen by counsel for the inmates and one by the city, will oversee the city's compliance. The monitors will report quarterly, develop performance goals and make recommendations.

Justice Braun's bold July, 2000 order should be recognized as the impetus for the settlement and for remedying a dangerous and compassionless policy of releasing mentally ill inmates in the middle of the night with no transitional assistance. The devastating effect the policy had on former inmates is difficult to ascertain, but, as Justice Braun noted in his order the former inmates were simply "return[ing] to the cycle of likely harm to themselves and/or others, through substance abuse, mental and physical health deterioration, homelessness, indigence, crime, re-arrest, and re-incarceration."

The injustice brought about by this policy has now been remedied though an 80-page settlement. The benefits will not only be felt by the individual former inmates, but also by society. Again, quoting Justice Braun's decision "[i]t is not only to the[ inmates'] benefit to provide them with a discharge plan but to that of all of us if such a plan can aid at least some of [the inmates] to become healthier and thus more productive members of society who are not harmful to themselves and/or others."

The case is: Brad H. v. City of New York, Index No. 117882/99 (Braun, J.) (N.Y.Cty.Sup.Ct.) (Attorneys: Christopher K. Tahbaz, Patricia G. Corley, Emily O'Neil Slater, Douglas Lasdon, Raymond H. Brescia, Heather Barr, John A. Gresham, John Beaglehole, Eileen Sullivan, Faune Devlin, Jeffrey K. Powell, for Brad H.; Michael A. Cardozo, Thomas C. Crane, Jeffrey S. Dantowitz, for NYC).

Jonathan Rosenbloom is the associate director of the Center for New York City Law at New York Law School

The 9/11 Killer; The Public Hearings On 9/11; Moynihan On Government Secrecy


The 9/11 Killer

It was the kind of violent crime spree that many New Yorkers thought was a thing of the past: over seven weeks, in Brooklyn and Queens, four men were killed and another seriously wounded by a lone gunman. All the murdered men had been hard-working shopkeepers, holding down tough jobs on the night shift -- one at a laundry, another at a deli, two at small grocery stores. All were family men and immigrants -- from Russia, Guyana, India, and Yemen. Photos of grieving family members filled the newspapers, along with murky photos of the killer, wearing a baseball cap. The fact that the killer took little or no money simply added senselessness to the brutality of the crimes.

Now the police have a suspect, a 30-year-old Brooklyn man, Larme Price, who walked into the 77th Precinct station house in Brooklyn on a Friday night, offering to help find the killer. The following day Detective Tony Viggiani, a seasoned hostage negotiator, called him on his cell phone, asking for help. According to the New York Times, Price broke down, saying "I'm the guy you're looking for." Detective Viggiani kept talking while he and another detective jumped in a car and drove to the apartment on Eastern Parkway where Price's parents lived. Still on the phone, Price said that he had killed the four men in revenge for the World Trade Center attacks on September 11. He was looking for men of "Arabic descent." As it turns out, only one of the four was of Middle Eastern extraction.

This tragically nonsensical story seemed to deepen as his mother, Leatha Price, said her son had a history of drug abuse and mental health problems, exacerbated by September 11. The family's ongoing attempts to get him treatment were rebuffed repeatedly. On March 9, 2003, he had been seen and released by Woodhull Medical and Mental Health Center. On March 10, say police, he killed Albert Kotlyar, who had asked him to leave the Laundry King Superstore in Bedford-Stuyvesant since he was not doing any wash. Price told police he had been disrespected.

Price had eight prior arrests going back to 1989 for burglary, robbery, and assault. He has been charged with four counts of murder and two counts of attempted murder.

The Daily News pointed out that this is simply the latest in a long series of cases to raise questions about whether hospitals are properly handling dangerous, mentally ill people. Andrew Goldstein, for example, was shuffled through at least six mental health facilities before he pushed Kendra Webdale to her death in front of a subway train in 1999, the News recalled. Larry Hogue, the Wild Man of 96th Street, was finally institutionalized in 1997 after his one-man reign of terror on the Upper West Side.

When asked about Price, Roger Klingman, a spokesman for the state Office of Mental Health, said, "We are aware of the story, and we are looking into it."

HEARINGS ON TERRORISM BEGIN AT LAST

New Yorkers are finally getting their hearings. Nearly 19 months after the bombing of the World Trade Center, the National Commission on Terrorist Attacks began public hearings downtown on March 31. As the New York Times had pointed out on the first anniversary of 9/11, the government's failure to investigate was unprecedented for a disaster of this magnitude. A public inquiry into the sinking of the Titanic began the morning after the survivors arrived in New York City. "No inquiry remotely similar in scope, energy or transparency has examined the attacks of last Sept. 11," wrote the Times. "One year later, the public knows less about the circumstances of 2,801 deaths at the foot of Manhattan in broad daylight than people in 1912 knew within weeks about the Titanic, which sank in the middle of the ocean in the dead of night."

Similarly, the Warren Commission felt compelled to report its findings by the first anniversary of President Kennedy's assassination. Serious investigations were conducted into the military failure at Pearl Harbor in 1941, the explosion that destroyed the Challenger space shuttle, and airline disasters, such as the 1996 downing of the TWA Flight 800.

The Bush administration successfully blocked congressional hearings on 9/11 for six months, and repelled calls for a special commission of inquiry. While congressional hearings were eventually held behind closed doors, the promised public hearings were postponed time and again. Now they have begun at the Custom House, with public testimony that includes bitter but cogent censure of the government's ineptitude in the face of the many warnings it received that a violent attack was coming.

Mindy Kleinberg, for example, who lost her 39-year-old husband, asked, "Where was our government, its agencies, and institutions prior to and on the morning of September 11th?" She cited the cliché that intelligence agencies have to be right 100 percent of the time and the terrorists only have to get lucky once. But this is wrong on its face, she argued, because the 9/11 terrorists were not just lucky once: they were lucky over and over again. Her most startling accusation in her list of government blunders was that the Securities and Exchange Commission and American intelligence agencies failed to investigate the huge number of put options that were bought on American and United Airlines, the two airlines involved in the attacks, in the week before the attack. Speculators, who were gambling that in the short term the stock prices of both airlines would plummet, netted a profit of at least $5 million. The money remains unclaimed in the Chicago Exchange account. Why, she asks, were these aberrant trades not discovered prior to 9/11? Who placed these trades? Have they been investigated?

Mary Fetchet, another witness, lost her 24-year-old son Brad, who worked as an equity trader on the 89th floor of Tower 2. He called his father after the attack on tower one, shaken, but said that the Port Authority had told them to stay put in their office, "that the building is safe and secure." She notes that Rick Rescorla, Director of Security for Morgan Stanley told their employees to leave the building - to disregard the Port Authority's commands to evacuees to "return up to their offices." What were the failures, she asks, and who is accountable?

Brian Jenkins of the Rand Corporation argued that we have to "accept that we will live with some level of risk for years." Terrorists are planning further attacks, and the government cannot eliminate all sources of terrorist danger. But because intelligence is the first line of defense against terrorism, the New York Police Department in particular should be rebuilding its institutional intelligence capabilities. He argues that the rules put in place in the mid-1970s to correct the abuses of the 1960s impaired collection of intelligence by the early 1980s. By the 1990s, there was increased concern about terrorism, but police "collection capabilities remained low." Building more effective local intelligence-collection might be better than creating another federal entity since "local police know their territory" and local forces better reflect local populations.

Noting that New York had received only $11 million of the $556 million allocated for homeland security, Mayor Bloomberg urged that funds be distributed according to risk and threat analysis. If we distributed money for the military in the same way domestic security money has been allocated, said the mayor, "our troops in Iraq would have bows and arrows."

The commission was surprised by the low turnout of 60 or so people, which was far smaller than the 250 or more anticipated. But then the commission did not make it easy for people to come. Audience members were told to arrive at least 60 minutes before the start of the hearings, and that seating would be on a first-come, first-served basis. Members of the press, who were required to register three days in advance, were told to arrive at least 90 minutes early.

NEW YORK'S SENATOR MOYNIHAN DIES

Even as public hearings on terrorism finally began, New York's most relentless opponent of government secrecy, Daniel Patrick Moynihan, was buried in Arlington National Cemetery.

In Secrecy: The American Experience, he wrote that "government secrecy in its essence" produced its own pathology: "Departments and agencies hoard information, and the government becomes a kind of market. Secrets become organizational assets, never to be shared save in exchange for another organization's assets. Sometimes the exchange is in kind: I exchange my secret for your secret. Sometimes the exchange resembles barter: I trade my willingness to share certain secrets for your help in accomplishing my purposes. But whatever the coinage, the system costs can be enormous. In the void created by absent or withheld information, decisions are either made poorly or not made at all." This, of course, describes precisely the bureaucratic rivalries among the many agencies charged with protecting New York.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

Police Misconduct Cases - Prosecuted By Civilians, But Still Judged By Police


Fifty years after its creation, the Civilian Complaint Review Board has been granted the authority to perform independent investigations and prosecutions of civilian-alleged misconduct by police officers. A state court of appeals known as the Appellate Division, First Department has held that, for the first time, civilian complaints against police officers for misconduct may now be reviewed, investigated and prosecuted by an independent board comprised of civilians outside of the police department. The court, however, also ruled that the Office of Administrative Trials and Hearings, a distinct agency separate from the police department and the city's central independent tribunal, may not serve as the impartial adjudicator of the prosecutions. Instead, adjudication of police officer misconduct must continue to reside with the police department.

FIFTY YEARS IN THE MAKING

In 1953, the Civilian Complaint Review Board was created to be a place where people could file complaints of misconduct against New York City police officers. The original board had close ties to the police department, the very agency whose employees it was to investigate. For example, the board was comprised of three police department employees, deputy police commissioners, and based its investigations on reports prepared by the police department.

The original board did not independently investigate nor prosecute complaints of misconduct and had no actual authority to discipline any officers. It was solely empowered to review the police department investigatory reports and forward its findings and recommendations to the police department, which had the sole responsibility for prosecuting, adjudicating and determining the appropriate disciplinary action.

Since the board's creation, every attempt to dislodge the police department from investigating and prosecuting police officer misconduct complaints and to create an independent review process has been met by a lawsuit filed by the various police unions.

After several unsuccessful attempts, the board took its first step towards separating complaints of police officer misconduct from the police department in 1987, when six private (non-police) individuals were added to the twelve-member board.

The union unsuccessfully sued.

Six years later, the city council amended the New York City charter to make the board the city's first independent, police oversight agency, separating it from the police department and giving it the authority to investigate. The union again unsuccessfully sued. The new board was comprised entirely of non-police civilians, operating outside the police department with the authority to receive, investigate and recommend discipline to the police commissioner on complaints of force, abuse of authority, discourtesy and offensive language. But the board members could not themselves prosecute these cases.

ATTEMPT AT INDEPENDENT PROSECUTION AND IMPARTIAL REVIEW

Following the 1993 changes, the board, after making its investigation, was required to forward to the police department's internal disciplinary system any claim of misconduct it found "substantiated" for prosecution. The police department's internal system, not the board, then determined whether and how to prosecute the claims. The claims were also heard before the police department's internal Office of the Deputy Commissioner for Trials. That office would then recommend penalties to the police commissioner. The Civilian Complaint Review Board did not participate in the review process.

In January 2001 the mayor and police commissioner made two significant attempts to further remove police officer misconduct complaints from the police department's review. First, prosecution of misconduct complaints were removed from the police department and given to the board, which was now granted the authority to not only investigate disciplinary actions against police officers, but also to prosecute "substantiated" claims. Included in this authority was the board's power to obtain police officer's employment history and to negotiate pleas with officers charged with misconduct. Under the 2001 changes the board would no longer forward "substantiated" claims to the police department for prosecution. Rather, the board would prosecute formal charges against the officers.

Second, the new rules sought to remove the hearings and review of the prosecutions from inside the police department. The new rules required the board to bring the prosecutions of police officer misconduct before an impartial administrative judge at the Office of Administrative Trials and Hearings (OATH). The OATH judges were charged with making recommendations of discipline to the police commissioner. In April 2001 the police department and the board agreed that the board would start prosecuting cases before OATH after July 25, 2001.

UNIONS SUE

Prior to July 25th, several police unions sued the mayor, police commissioner, chair and director of the board, OATH and OATH's Chief Administrative Judge. The unions challenged both the board's expanded authority to independently prosecute officer disciplinary actions and the hearing of those actions before the impartial OATH tribunal. In a decision entered on October 15, 2001 Justice Leland G. DeGrasse upheld the new rules with one exception. Justice DeGrasse ruled that the board was properly authorized to prosecute complaints of police officer misconduct. Justice DeGrasse, however, ruled that police disciplinary hearings could not be heard before an impartial OATH judge, when those hearings may result in termination. State law, Justice DeGrasse stated, specifically required that only police department employees preside over disciplinary hearings where termination is a possibility.

On appeal, the First Department affirmed Justice DeGrasse's ruling as it pertained to the board. The board, the court held, may be granted the authority to perform independent prosecution of complaints of police officer misconduct; may obtain personnel records of officers under investigation; and may pursue plea bargains with police officers under investigation.

The court, however, altered Justice DeGrasse's ruling by holding that OATH could not serve as the impartial tribunal presiding over officer disciplinary hearings. State law, the court held, completely barred OATH from presiding over any police disciplinary hearings, which must be conducted by an individual who is employed by the police department.

GREATER EFFICIENCY, TRUST UNDER CIVILIAN CONTROL

The Civilian Complaint Review Board, then, has been granted the authority to perform independent investigations and prosecutions of civilian complaints claiming police officer misconduct. Impartial hearings of those complaints, however, must wait. The board's prosecution of police officer misconduct will be performed before a police department employee, who will recommend whether or not to discipline the officer.

It is important to note that the few cases that did process through the board and OATH prior to the court's 2003 decisions were processed more efficiently than those prosecuted by the police department. They also resulted in similar disciplinary actions. For example, in 2001 the board averaged 274 days to investigate complaints, while the police department averaged 558 days to prosecute substantiated claims. Similarly, in 2002 OATH was able to make recommendations on prosecutions within 77 days, while the police department averaged over 500 days. Moreover, the police department imposed discipline against an officer in over 75 percent of the cases where the board found the complaint to be "substantiated". The police department imposed OATH's recommended disciplinary action against an officer in 78 percent of the cases in 2002 and 98 percent in 2001.

While these statistics begin to express the increase in efficiency and accuracy that would be afforded civilian complaints if separated from the police department, they do not account for the improved relationship between the public and police department that would occur upon separating investigation, prosecution and adjudication of civilian complaints against police officers from the police department. The public's perception of the police department can only be enhanced by allowing an outside independent investigation and impartial review of police misconduct complaints. There is an obvious skepticism among the public, particularly in minority communities, that the police department does not give civilian complaints proper review and is incapable of disciplining its own. As the city's brief before Justice DeGrasse stated "[s]uch public perceptions corrode the relationship between the police and the community." The unions' continued attempts to thwart the creation of an independent investigation and impartial review of complaints of police officer misconduct creates another level of mistrust between police officers and the constituents they protect and serve.

The cases are: Lynch v. Giuliani, 2003 N.Y.App.Div. LEXIS 68 (1st Dep't); Lynch v. Giuliani, Index No. 111436/01 (N.Y.Cty.Sup.Ct.) (DeGrasse, J.) (Attorneys: Michael T. Murray, Richard A. Dienst, for Lynch; Michael D. Hess, Alan G. Krams, Scott Shorr, NYC). As of this writing, the judgment had not been entered, which would give the parties thirty days to appeal to the state's highest court.

Jonathan Rosenbloom is the associate director of the Center for New York City Law at New York Law School

The Anti-War Protest And The Police


Capitol of capitalism that it is, New York will continue as a likely target of terrorism so long as it remains rich and powerful. But it is also the international center of media and communications, enterprises that depend on liberty of person and freedom of movement. It is the place to which those with a message come to get their views known and covered. Freedom is at the very core of New York and its success. Its police department historically has understood this, despite the pressures this often puts on police work.

So it may be that New York's officials were simply caught unaware in late January when an aggressive antiwar coalition (United for Peace & Justice) wanting to march up the East Side to the United Nations, asked for a permit, which the city denied. The city cited insufficient time and resources to prepare for a march that would pose "an unacceptable risk to public safety."

In early February U.S. District Court Judge Barbara Jones agreed, noting the federal government's orange (Level 2) terror alert and general post-9/11 security concerns. A protest rally would be permitted, but not a protest march.

But judicially upholding the denial of a permit for a protest march was unprecedented, according to Donna Lieberman, executive director of the New York City Civil Liberties Union. In their appeal of Judge Jones's decision before the U.S. Court of Appeals, 2nd Circuit, the New York Civil Liberties Union argued that "For decades people in New York City have paraded and marched through the public streets as a means of expressing and demonstrating their views on a wide variety of topics. Marching in the streets is a time-honored tradition in our country that lies at the core of the First Amendment."

The Court of Appeals upheld the city's denial of the permit, but sternly noted that its ruling applied to this one event only: "We do not imply that a prohibition against marching would be constitutional in circumstances other than those presented here. We caution that, while short notice, lack of detail, administrative convenience and costs are always relevant considerations, these factors are not talismanic justifications for the denial of parade permits. Likewise, simply offering an alternative of stationary demonstration may not completely serve the constitutional interest at issue."

The court is warning the city that in the future, as in the past, it will again be expected to handle demonstrations, even those that are belated, inconvenient, and costly.

A BAD TIME WAS HAD BY ALL

The demonstration was held on Saturday, February 15, and few have had anything good to say about the experience. The New York Police Department had approached the demonstration as if it were a military operation, thinking containment and control. Police first herded people towards the stage near Dag Hammarskjold Plaza at the northern part of the United Nations, then blocked them from exiting. They shut off access from the side streets, driving demonstrators north on Second and Third Avenues. Large numbers of people were forced to take streets whose exits turned out to be barricaded. The New York Times noted that part of the confusion stemmed from the NYPD moving the entrance to the rally northward as each block of First Avenue filled, progressing from 51st Street up to 74th Street. Many protestors felt hemmed in, ineffective, and scared -- some apprehensive of the surging crowds, others of the police, many unable to free themselves even to leave. The police strategy kept many protestors from protesting.

On the following Monday the protest's organizers ran a 7-minute videotape produced by the Independent Media Center showing questionable police behavior -- backing horses into demonstrators, shoving people into the metal barricades, spraying something toxic at penned-in demonstrators, using abusive language, and raising nightsticks against some who couldn't move. NYPD spokesman Michael O'Looney said the tape was "filled with special effects," and that it did not show whether cops had been provoked.

The NYPD said very few protesters were injured and few arrested -- roughly 275, which is regarded as low for an event of at least 100,000 people, and perhaps as many as 400,000, according to the organizers. The organizers also disagreed with NYPD estimates of arrests and put the number at 348.

Commentary has been almost universally negative. New York Times columnist Joyce Purnick noted, for example, that the "last time we looked, the right to assemble did not mean the right to be splintered into small clusters of people kept far from the action." Newsday's Jimmy Breslin attacked the NYPD's "disgraceful performance," of penning in "throngs of smiling people as if they were cattle. It wasn't the cops' idea to do it. All they did was carry out orders as poorly as possible."

WHAT LIES AHEAD

Do protest marches have inherent dangers to worry both marchers and officials? Absolutely yes, as anyone who has ever marched knows. Things can always go wrong in a crowd, even one made up of well-intentioned people. Something scary happens, the crowd surges, some get trapped against a barrier such as a plate glass window, people get hurt, sometimes very badly.

And a crowd isn't necessarily composed of good guys. Crowds are easily infiltrated by malevolent intruders -- whether FBI agents during the 1960s or terrorists today -- as well as by morons, such as the person who set off firecrackers on Feb. 15, alarming the police horses.

Worse, the world has changed since 9/11, and all political groups are going to have to adjust. The symbols that make for a vital protest, such as the UN or the Statute of Liberty, have been made virtually off limits by their new status as terror targets. The UN had been one of the targets in the 1993 terrorist plot to blow up five New York landmarks simultaneously. That plot was thwarted and several men convicted and imprisoned, but city officials would be irresponsible to disregard the UN's status as an international symbol.

Even such mundane matters as portable toilets can become a serious issue in these new times. Although the police refusal to permit them produced huge problems for the protest's organizers, few would deny that a Porto-San is a perfect hiding place for a bomb. Yet now the issue becomes: which of its repressive procedures will the police apply to future marches and parades?

Will the St. Patrick's parade, for example, suddenly find itself without toilets? Unlikely.

Indeed, the often-mentioned upcoming St. Patrick's Day parade has produced its humorous moments. Trying to distinguish the city's insistence that it had to deny a permit for a protest march from its insistence on issuing a permit for the St. Patrick's Day Parade, NYPD Assistant Chief Michael D. Esposito said that St. Patrick's and Puerto Rican Day marchers "step out in a timed manner and proceed at a set pace." Few New Yorkers outside the police department would cite these two parades as models of decorum.

As Donna Lieberman points out , the police department has a new policy of denying permits for political demonstrations of more than 1000 people even as it routinely permits raucous "traditional" parades. Does this make sense?

The February 15 anti-war march was a world event, held in great cities and small, but not New York. Yes, New York is New York, and therefore likely to get more aggressive protestors. And, yes, New York is a target of terrorists. But it is also an international symbol of freedom, and a city that has always triumphed over its enemies. If it forbids demonstrations and protesters as if it were just a normal city unaccustomed to dealing with world events, it will erode not only its preeminence as the world's capital city but its own sense of itself as a place that takes on all comers.

POLICE ASK FOR MORE SURVEILLANCE AUTHORITY

Meanwhile, even as the police department has been telling two federal judges that it cannot safely handle a protest march, it has been urging another federal judge, Charles S. Haight of Federal District Court in Manhattan, to expand its surveillance authority of political groups. Judge Haight agreed on Feb. 11 to modify a 1985 court order restricting surveillance, which the police department said hampered its ability to investigate terrorism. In early March, Judge Haight will announce modified rules, most likely permitting the police to operate much like the FBI. The department is asking to investigate political groups even without having evidence of criminal activity, and to share all information with other law enforcement agencies. While Judge Haight retained the three-member oversight board that investigates specific complaints of abusive police investigations, he de-fanged it.

"The Constitution's protections are unchanging," he wrote, "but the nature of public peril can change with dramatic speed, as recent events show."

POLICE AND IMMIGRATION SERVICE ACCUSE ONE ANOTHER

Yet somehow nothing is simple. It was revealed last month that of the five suspects in a brutal December 19 gang rape of a woman in Flushing Meadows-Corona Park in Queens, four were illegal aliens with criminal records. So why were they still enjoying the welcome of the U.S.? It turned out that messy relations between the New York Police Department and the federal Immigration & Naturalization Service may have been to blame.

A 1989 Koch administration order prohibited cops from informing the immigration service of an illegal alien's arrest. The rationale was that otherwise illegal aliens would not call in the police to deal in immigrant neighborhoods. But that rule was superseded by a 1996 federal law that encouraged police departments to inform the immigration agency of crimes committed by illegal aliens. Only illegal aliens convicted of felonies are to be deported -- but one of the four was indeed convicted of a felony and an police detective informed the Immigration, according to the mayor's coordinator of criminal justice. A congressional committee is holding hearings to investigate, among other matters, whether the Koch executive order that protects aliens and provides them emergency health care also inappropriately discourages the police from reporting crimes.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.



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