Gotham Gazette

The Place for New York Policy and politics

Criminal Justice

The Fight Against Street Harassment

When Emily May set up the Web site Holla Back with six friends in October 2005, she didn't expect much response.

"We thought, 'Wow, this is a cute idea,'" said May.

Inspired by Thao Nguyen, whose decision to snap a cellphone picture of a subway rider masturbating led to a high-profile arrest and prosecution, Holla Back gives visitors, mostly women, a forum to post photographs and stories about their experiences being groped, catcalled or otherwise sexually harassed in public.

It didn't take long for the Web site to catch fire. "It was wild," said May. "All of these women were coming out of the woodwork." TV stations and local media started calling, and May appeared on the Good Morning America, the Today Show and CNN. Holla Back was profiled in several local newspapers. More than two years later, the site is still thriving, receiving about 1,500 visits a day, according to May. Fifteen different Holla Back sites have been established nationwide, with another in South Korea.

Holla Back gives New Yorkers a forum for expressing frustration about street and subway harassment of women. At the same time, a growing groundswell of anecdotes, opinions and outrage is beginning to reach the attention of government. For example, in December, the City Council passed legislation, sponsored by Councilmember Peter Vallone Jr., that upped penalties for repeat flashers, or individuals convicted more than once for public lewdness within a three-year period, from $500 to $1,000, and from 90 days in prison to a year.

Little is known about the precise extent of harassment, despite an avalanche of anecdotal information and some small-scale surveys. And debate continues over what role, if any, government should play in regulating the behavior. Advocates hope that laws like the one passed by council last month at the very least will stigmatize behavior that has long been accepted or at least tolerated. Others challenge the harm that is posed by harassment, likening it to harmless flirting. And some fear that the enforcement of laws against harassment and flashing will be unfairly directed at gays and racial and ethnic minorities.

Anonymous and Uncounted

Street and subway harassment is anonymous: In almost every case, the harasser and the person being harassed do not know one another. The harassment itself ranges from rude and prolonged stares and inappropriate comments to behavior that can create fears of sexual assault. Women feel threatened by this, partly because they have no way to determine the intentions of the harasser - whether he is a "good guy or not" in the words of Emily May. Even rude comments can be traumatizing, particularly for rape victims. (According to the United States Department of Justice, one in six women have been raped at some point in their lives.)

Many observers believe that street harassment is essentially a "power trip" designed to put women in their place, a reaction to broader social changes in which women enjoy more freedom and work opportunities than previously. "It's a mechanism designed to reinforce [traditional] status hierarchies," said sociologist Laura Beth Nielsen.

In a rare attempt to quantify the frequency of street harassment, Nielsen interviewed 100 subjects (including some men) in the Bay Area. Fully 62 percent of the women reported experiencing offensive or sexually suggestive comments "every day" or "often." An additional 28 percent said they heard comments "sometimes." Only 10 percent of the women she interviewed said that they "never" heard comments.

In July 2007, Manhattan Borough President Scott Stringer issued a report on sexual harassment and assault in the New York City subways. Sixty-three percent of survey respondents reported being sexually harassed on the subway, and 10 percent said they had been sexually assaulted. About half said they felt the threat of sexual assault and/or harassment on the subway "sometimes or frequently."

Critics assailed the survey's methodology. It relied on self-reporting (individuals were invited to fill out the survey on-line and only a fraction of those invited did so), which may have inflated the findings. The New York Post was particularly harsh, dismissing it as "The Beep Who Cried Wolf." Even the Wall Street Journal weighed in on the topic, calling it a "Dubious Survey on Subway Safety."

While the criticisms were somewhat valid, the report generated a huge amount of attention. A story on the subject at the New York Times blog "City Room" received 163 comments, far more than the 5 to 25 comments that blog entries typically generate.

Reliable information about the nature and extent of street and subway harassment is almost impossible to come by. "There's no research out there," said May. "We don't know how often it happens or who it happens to." The result, according to May, is that "women think it's their fault. They say to themselves, 'If only I wasn't walking there.'"

Stringer believes the government must do a better job of collecting information. "The city has gotten very good at going after crime that it quantifies, so the first step should be tracking sexual harassment and assault in the subway as its own category of crime," Stringer wrote in an email message. "Having that information will allow us to raise the profile of these crimes, demand more of a response from the police and the MTA [Metropolitan Transportation Authority], and create a public service campaign that embarrasses the perpetrators and empowers victims to move beyond fear to outrage." His report recommended the establishment of a hotline for subway riders to report incidents of assault and sexual harassment, citing findings that the overwhelming majority of victims don't bother to report incidents to the police.

The Government Role

Regardless of how widespread harassment is, what can government do about it?

Even efforts to target relatively straightforward behavior such as public lewdness have proved controversial. "It's a struggle for government to regulate public space, because you almost always capture people acting innocently" or for reasons other than those contemplated by the law, said Vallone.

His bill is a case in point: It was criticized by gay right groups who argued that the police use public lewdness laws to target gay men who have sex in public. An enterprising reporter from Gay City News, Duncan Osborne, obtained records of 359 public lewdness complaints filed in the city and found that a small number involved police operations in locations that gay men frequent for sex. (While some may argue that prohibiting public sex is a legitimate government activity, it wasn't the express purpose of the legislation.) In response, Vallone agreed to limit enhanced penalties to "serial flashers" arrested more than once for the same offense in a three-year period.

In the 1980s, transit police falsely arresting black and Hispanic men for what was then called "bumping" in the subways in an attempt to raise their productivity and earn promotions. The pattern of arrests created an uproar. "It's extremely hard in a crowded subway station to tell right from wrong when somebody is up close to somebody else," Richard Emery, a lawyer who represented the falsely accused men, told the New York Times.

The challenge of targeting street and subway harassment becomes even more difficult when you move from behavior (such as flashing or groping) to speech. The first constraint is constitutional: The Supreme Court sets a very high bar against government intervention. Essentially, the government can regulate only speech that is clearly intimidating, rather than merely offensive. In addition, regulations have to be applied in a "content neutral" fashion that does not target particular kinds of speech. In practice, the court has generally struck down laws aimed at racist or sexist speech, but has upheld laws that restrict panhandling, another form of potentially offensive public speech. In her study, sociologist Nielsen suggests this reflects a judiciary that is largely male and thus unfamiliar with the problem of street harassment. About two thirds of the men in her survey reported rarely or never hearing offensive or sexually suggestive comments directed at other people.

Nielsen herself has a nuanced view of government intervention of sexist speech. In her interviews, she found little support for an expanded government role, even among men and women who believed strongly that sexist speech is offensive and morally wrong. White men tended to cite the First Amendment to support their position, but white women and people of color used a much more pragmatic calculus. In essence, they believed that policing sexist speech would either not work or would backfire on its intended beneficiaries. In other words, women doubt that government is the answer to the problem of sexist speech. Nielsen, though, believes that changes in law would have an "important symbolic effect." New laws, she said, would help women make the case that harassment "doesn't just suck, but is illegal."

Banding Together

Whatever the legal pitfalls, advocates think awareness of harassment has increased. "The important thing is that this is no longer a secret conversation between women," said documentary filmmaker Maggie Hadleigh-West. Her 1998 documentary, "War Zone," in which she interviews men who harass women, has enjoyed an unusually long life. She traveled to Egypt this year to show the film, and it is used routinely for training by the U.S. Department of Defense. "The positive part is that it's now being recognized culturally as a problem," she said.

Inspired by "War Zone," a group of young women organized an anti-street harassment campaign in Brownsville, Brooklyn, developing posters and creating a "harassment-free zone" in their neighborhood. "We work with the girls to own up to their own comfort zone and identify what they think is harassment," said Joanne Smith, the executive director of Girls for Gender Equity. "A lot of them end up being comfortable telling people, 'I don't like this.'"

Of course, there are limits to the self-help approach: In one highly publicized incident, four women were arrested for attacking a man in Greenwich Village they accused of harassing them. One woman stabbed the man in the abdomen with a steak knife she carried in her purse. While vigilantism is one concern, a more practical concern for most women is whether confronting their harasser will expose them to more danger.

To Emily May of Holla Back the most effective approach is education: letting men know that women cannot distinguish a harasser who is basically harmless from one who is genuinely threatening. "I think [a lot of] men really don't understand what they're doing when they harass women," she said. "If they understood that street harassment was scary, they wouldn't do it."

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.  

Who's Stopped? Who's Frisked?

While New Yorkers applaud the police for the drop in crime and are generally satisfied with police performance, many city residents firmly believe the police use race as a factor in deciding who to stop on the streets. In a survey taken in 2000, 62 percent of respondents said they believed the police racially profiled. This included 79 percent of blacks, 66 percent of Hispanics and 51 percent of whites.

But a recent study challenged such deeply held notions, largely exonerating the New York City Police Department of explicit racial bias in who officers stop and sometimes frisk. Despite its nuances and subtleties, the study – which received widespread press coverage, including a front page article in the New York Times –provides the police department with powerful statistical ammunition to back its claims that the high proportion of racial minorities stopped by the police in 2006 (89 percent of all stops) reflects the differing crime rates among races, not overt bias.

Civil libertarians and other law enforcement critics struck back, taking aim at the report's methodologies and conclusions. One critic called the report "full of disinformation" and "comprised of endless excuses [and] statistical justifications," according to the New York Daily News. Partisans on the right jumped into the debate as well, with conservative pundit Michele Malkin (among others) accusing the New York Times of playing down the study's pro-police conclusions.

Underlying the partisan debate are some legitimate questions about the statistical techniques used by the study's authors, as well as the police department's refusal to release key data to the public. Perhaps equally important, media accounts have tended to play down the modest concerns raised in the report about police tactics and its recommendations for change. Finally, the study was not designed to answer a central question that all New Yorkers must grapple with: How can we balance the kind of aggressive policing that promotes public safety with the need to maintain trust and confidence in the police, particularly among racial and ethnic minorities?

The Study's Conclusions


The raw statistics released by the police department in February 2007 were stark: Over 500,000 pedestrians were stopped by the police in 2006, an almost five-fold increase in the number of stops recorded five years previously. Equally troubling was the racial breakdown of the stops themselves. Non-whites represented 89 percent of individuals stopped, with blacks, who comprise 24 percent of the city population, accounting for 55 percent of stops. In addition, 45 percent of black and Hispanic people stopped were frisked, compared with 29 percent of white suspects -- even though the police were 70 percent more likely to recover guns from white suspects.

The police insisted that the racial breakdown of the stops was justified, pointing to statistics showing that blacks represented 68 percent of suspects identified by victims and witnesses. In the department's view, the racial breakdown of stops was driven by patterns of crime, not racial bias. The stops might also reflect the allocation of police – more police officers are deployed in high-crime neighborhoods that tend to have high proportions of non-whites.

Faced with widespread public criticism and threats of a class action lawsuit by the Rev. Al Sharpton, Police Commissioner Ray Kelly turned to a nationally respected think tank, the Rand Corp., to examine the stop and frisk reports – known as "UF250s" – filled out by police in 2006. The UF250s record detailed information about each stop, such as its location, the time of day it took place and the reason for the stop, as well as post-stop outcomes, such as whether the stop resulted in a search, the discovery of a weapon or an arrest. The challenge for Rand in looking at the data would be to separate stops driven by legitimate public safety concerns from stops driven by illegitimate racial bias.

Examining the Data


To analyze the stop data, the Rand researchers used a controversial, though generally accepted, statistical technique knows as benchmarking. To do this, they first analyzed the data to predict how the police would behave if they were not acting in a racially discriminatory model. Then, they compared what actually happened with the benchmarks to determine if there was a pattern of racial bias. Using this method, the researchers found that blacks were stopped in rates comparable to their share of arrests and 20 to 30 percent less often than descriptions of crime suspects by race would suggest. Interestingly, the report found that Hispanics were "overstopped" by between 5 and 10 percent relative to their share of arrestees and crime suspects.

Benchmarking, while commonly used, has limitations. "All benchmarks have problems," said the lead author of the Rand report, Greg Ridgeway. "They're really just ways at poking at the data."

For example, according to Ridgeway, relying on arrest data as a benchmark does not necessarily eliminate racial bias. If the police are biased in their arrest decisions then the benchmark will be fundamentally flawed. To avoid this, Ridgeway prefers to use the reports made by victims and witnesses of alleged crimes because those come from average citizens and not police officers. But that approach has a shortcoming too: Only 20 percent of stops are made in response to report made by a crime victim or witness.

In preparing his report, Ridgeway also examined stop outcomes – such as a search, an arrest or issuance of a summons, the use of force or the recovery of a weapon or drugs – to see if he could detect any pattern of racial discrimination there. As with the stop analysis, benchmarking would be critical. The technique he used was relatively sophisticated. Whites, on one hand, and blacks and Hispanics on the other tend to be stopped for different reasons, including at different times of day, in different precincts and for different types of crime. To correct for that, Ridgeway compared the post-stop outcomes of "similarly situated" stops for white citizens and for black and Hispanic ones. The goal was to compare apples to apples: Stop outcomes would be matched according to time of day, location, type of suspected crime and a host of other factors.

Here Ridgeway found small but significant differences. According to the analysis, non-whites were frisked in 33 percent of stops, compared to 29 percent of similarly situated whites. Police were somewhat more likely to use force on black pedestrians than white pedestrians, but white suspects were slightly more likely to be issued a summons than similarly situated non-whites (5.7 percent versus 5.2 percent), while arrest rates for white suspects were slightly lower than for non-whites (4.8 percent versus 5.1 percent).

While these differences are small in percentage terms, they translate to large numbers of people given the high volume of stops. A two percent difference in frisk rates for black pedestrians relative to whites translates to 5,350 "extra" frisks for blacks per year. The same is true for use of force. The report estimates that there were 2,000 more use of force incidents with black pedestrians than non-blacks. These differences in frisk and use of force rates were particularly pronounced in Staten Island. For example, police in Staten Island used force in 13.5 percent of stops of black suspects, but only with 10.1 percent of similarly situated white suspects.

To Ridgeway, many of the differences in post-stop outcomes, with the exception of those reported in Staten Island, while worrisome, do not indicate a system that is "out of whack and needs restructuring." "These types of differences, with the exception of Staten Island, don't call for a complete overhaul of procedures," he concluded.

Ridgeway's analysis of arrest data, broken down by precinct are, almost identical to the method used in a 1999 study performed by then Attorney General Eliot Spitzer. The Spitzer study, which found that blacks were stopped 23 percent more often that whites and Hispanics were stopped 39 percent more often than whites.

There were some important differences between the Rand and Spitzer reports, however. In the Spitzer study, researchers examined a sample of 5,000 UF250 forms that included a space for the officer to describe the reasons for the stop. Using the standard set by the United States Supreme Court for permissible stops, researchers determined that 61 percent of stops met the legal standard and15 percent did not. In the remaining 24 percent, they did not have enough information to make a determination. Using that information, they found that 1 in 7 legally justified stops led to an arrest, compared to only 1 in 29 stops where the legal standard was not met. Although the rate of unreasonable stops was roughly equal for whites and non-whites, this was a provocative finding, suggesting that the police would be more "efficient" if they only stopped pedestrians for a narrow set of reasons. Rand was unable to repeat this analysis because the newer UF250 eliminated the place to explain the stops.

The Press Reaction


The Rand report received widespread coverage in local newspapers. Despite the subtleties of the study, the headlines were unambiguous for the most part: "'Profiling' Study Gives NY All Clear" read the New York Post. Other newspaper left out the nuances as well. The Daily News: "Review says half-million NYPD stop-and-frisk cases not racial profiling." Newsday: "Study Downplays Bias in NYPD Stop-Frisk policy." Only the New York Times headline was more measured: "City Police Stop Whites Equally but Frisk Them Less, a Study Finds."

Civil libertarians were quick to dispute the study's findings. Both the Center for Constitutional Rights and the New York Civil Liberties Union criticized the report's methodology, although neither organization suggested an alternative other than relying on census data.

Beyond the report, critics fault the police for their apparent unwillingness to share the UF250 data more generally with the research community. Current city law requires the department to report stop-and-frisk data to the City Council on a quarterly basis. Citing technical difficulties, the police did not report data from 2004 and 2005. More galling to researchers and advocates is that the council had access to only a limited set of the 2006 data, preventing researchers from independently confirming the Rand analysis. "It would be wonderful if the data were a public resource," said Jeffery Fagan, a researcher at Columbia University who worked on the Spitzer report.

Recommendations for Change


For his part, Ridgeway expressed surprise at the media reaction. "I thought it tended to say that the report was giving the NYPD a clean bill of health, and I don't think that's what the report was saying at all" he said.

Ridgeway has had to fight his own battles with the media. An op-ed he prepared for the Daily News with colleague K. Jack Riley was initially given the headline "Police Stop Black New Yorkers More – and with Good Reason" before it was changed to "Police Need to Do a Better Job of Explaining Stop-and-Frisk."

Meanwhile the recommendations made in the report about improved police stop and frisk procedures seem to have gotten lost. Although many of Ridgeway's recommendations were procedural in nature, other recommendations, if implemented, would have a big impact on citizen interactions with the police. In addition to recommending a closer look at police operations in Staten Island, the report calls for the police to be required to clearly explain the reasons behind their action to anyone they stop. Ridgeway argues that police officers should also give each stopped pedestrian an information card with contact information in case they want to file a complaint. The recommendation is based on an emerging body of social science research that suggests that people care more about whether an interaction with law enforcement is fair than the result of the interaction itself. "Just giving information can help defuse things," said Ridgeway.

The report also discusses how to deal with individual officers with higher-than-normal stop and frisk rates. Ridgeway devoted an entire section of his report to a process called "internal benchmarking," which compares the stop rates and post-stop outcomes of individual officers against similarly situated officers. As with the other benchmarks, the goal here is to predict how a police officer, who is not racially biased, would act and compare that to the actual performance of individual officers. Using this technique, Ridgeway identified five officers who stopped more black suspects than expected and ten officers who stopped more Hispanic suspects. (The report also identified nine officers who stopped substantially fewer black suspects than expected and four officers who stopped substantially fewer Hispanic suspects.) In Cincinnati, where Rand pioneered the internal benchmarking technique, supervisors meet with identified officers to determine if there are legitimate reasons for the disparities.

Ridgeway says he verbally presented these recommendations to Kelly two weeks before the written report was submitted. Although it's not clear if the recommendations will be implemented, Kelly told the New York Times that he plans to "put in place what we think is appropriate as quickly as possible."

Critics of the NYPD generally have been cool to internal benchmarking and said little about the other recommendations in the report, largely because they believe its focus is misplaced. Stop and frisk policy "is set at the precinct level, not the individual police officer level," said Columbia law professor Jeffrey Fagan. The fear is that stop and frisk will be reduced to a problem of a "few bad apples, rather than a system-wide problem," said Kamau Franklin, a racial justice fellow with the Center for Constitutional Rights.

Balancing Public Safety and Public Trust


The report was not designed to address the effectiveness of stop and frisk as a policing strategy. Even the department's critics generally agree that aggressive stop and frisk strategies used to take illegal guns off the streets in the 1990s played a role in the city's historic crime drops. However, they wonder if the five-fold increase in recorded stops over the last five years – which could be partially attributable to improved recordkeeping – is justified in a city with relatively stable crime rates. "It's an astonishingly high number of interactions," said civil rights attorney Andrew Celli, who oversaw the 1999 Spitzer report as the chief of the Civil Rights Bureau in the attorney general's office. "How effective and how useful at combating crime is this kind of police activity?"

That's difficult to determine. Even the widely cited statistic that only 10 percent of stops result in a summons or arrest is open to interpretation, according to Ridgeway. He described riding along with police officers and a victim who had been assaulted by three individuals. The police stopped three groups of men before they found the assailants. Even though six of the nine individuals stopped were innocent, it's hard to criticize the police response, Ridgeway said.

One seemingly intractable problem involves the gulf between those who have experienced - or believe they have experienced -- a racially biased and intrusive police search and those who have not. No matter what the official rationale for a race-based stop, it is a traumatic experience. It causes "fourfold harm" in the words of William Stuntz, a legal theorist, because it raises the threat of physical violence, stigmatizes the individual by treating them like a criminal, violates their privacy and singles them out on the basis of their skin color. It is difficult to imagine that any statistical analysis, no matter how sophisticated, can convince a person who experienced an intrusive search that the police were acting in good faith. Scholar Michael Tonry has put it another way: Regardless of whether the criminal justice system is acting in a biased way (Tonry believes it is not), black men in particular have borne the brunt of police suspicion on the basis of race.

It seems clear, then, that the Rand report will not quiet the debate about the effectiveness of aggressive police strategies. Dueling stories from late November suggest the ongoing dynamic: The police release statistics showing that murders have been reduced to a 40-year low; at the same time, the number of suits filed against the police and grievances submitted to the Civilian Compliant Review Board, an independent police watchdog agency, continue to rise.

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system's approach to low-level crime.


A Minor Case Changes Police Practices

Every once in a while a case arises in the law that seems ordinary and unlikely to change law or policy or mean much to anyone but the individuals directly involved. These can be little cases that become big because of determined litigants and tenacious lawyers who keep challenging until they are heard. People v Matthew Jones is one of those rare cases. When Jones, 19, was arrested on West 43rd Street in Manhattan, at 2:01 a.m. on June 12, 2004, he could not possibly have expected that the case resulting from his arrest would three and a half years later reach the highest court of the State of New York.

But the case of People v Jones did go to the highest court, the Court of Appeals. That court has now unanimously decided that legally, it was not Jones' conduct that was the problem, but rather the arrest itself and the language used to describe the event.

Creating A "Public Inconvenience"

Jones, who had no criminal record, was accused by the New York City police of disorderly conduct, a violation of the Penal Law. Because he ran from the police, he was also charged with resisting arrest, a misdemeanor. Police handcuffed Jones, placed him in the back of a patrol car and took him into custody. After a night in a police precinct, hours spent in central booking, a round of fingerprinting and posing for mug shots, and dining on a baloney sandwich while locked up in the "pen" of Criminal Court at 100 Centre Street, Jones appeared before Judge Abraham Clott for arraignment and notification of the formal charges against him.

The charge against Jones was that "with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, [he] obstructed vehicular and pedestrian traffic." The arresting officer further stated that, "he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] ... Deponent [the police officer] directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run." Translation: Matthew Jones was standing on a public street and did not follow police orders to move (though he apparently did run).

The attorney appointed to represent Jones, Eric M. Dorsch of the Legal Aid Society, asked Judge Clott to dismiss the case. Dorsch argued that the charges -- Jones' presence on a public street -- were insufficient. That is, the written allegations failed to establish a prima facie case that Jones had committed a crime or violation of the Penal Law.

Dorsch argued that accusations contained in the information, the type of complaint issued against Jones, lacked the factual allegations of what his client had done to constitute criminal conduct. The information must give the defendant specific notice of how he or she broke the law.

The Criminal Procedure Law requires that this written accusation provide reasonable cause to believe that the defendant committed the offense charged. In this case, the acts committed by Jones and observed by the arresting officer allegedly were intended to cause public inconvenience, annoyance or alarm or could created a risk by obstructing vehicular or pedestrian traffic. But nowhere did the papers say what exact acts led to the arresting officer's conclusions.

Judge Clott, however, denied dismissal. Jones then agreed to plead guilty to disorderly conduct with a sentence of "time served," meaning the time he had already spent in jail, without any further penalty. In exchange for the guilty plea, the charge of resisting arrest, a class A misdemeanor punishable by up to a year in jail, was, as is typical, dismissed.

Pressing the Case

Most defendants enter pleas of guilt, which are the same as convictions after trial. Since every year thousands of cases end with guilty pleas at arraignment, this might have been the end of People v Matthew Jones. Here, however, the Legal Aid Society continued to make its arguments. Nancy E. Little of the Legal Aid Appeals Bureau took issue to the Appellate Term, which hears cases arising in the Criminal Court. There, two out of three judges agreed with Judge Clott who had found no defect in the arrest and charges, and affirmed his refusal to dismiss.

That still was not the end of it. Little continued up the appellate ladder, taking the challenge to the Court of Appeals in Albany where all seven judges of the state's highest court agree that the conviction resulting from Jones’ guilty plea guilt had to be reversed and all charges dismissed.

" Something more than a mere inconvenience of pedestrians is required to support the charge," wrote Judge Carmen Beauchamp Ciparick, who is from New York City and began her judicial career as a judge of the Criminal Court. "Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute.”

Citing a 1928 case holding that those congregating on the street display "atrociously bad manners" by "discommoding some other persons," Ciparick's opinion said such conduct alone does not necessarily give rise to disorderly conduct. In other words, the court concluded that "nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m. had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." Therefore, no prima facie case of disorderly conduct was spelled out and therefore the courts lacked jurisdiction or the power to consider the case, because legally, there was no case.

In addition, the court found the prosecution could not say a man broke the law by standing on a public street without stating what he did to warrant an arrest. There were no facts to support the charges. In the future, police officers, prosecutors and judges will have to adhere to the principals set out in People v Matthew Jones. The police will have to write up more specific charges and cannot say that the basis for an arrest was that a person was simply standing on the street, or even being "annoying" without saying what exactly was done.

Once the disorderly conduct charge fell, so did resisting arrest charge. Jones could not be resisting arrest if the arrest was not proper in the first place. Resisting arrest requires that "a person is guilty ...when he intentionally prevents or attempts to prevent a police officer ... from effecting an authorized arrest of himself or another person." And this was not an authorized arrest.


The office of the Manhattan district attorney, which prevails in the vast majority of appeals from cases it prosecutes, had battled the Legal Aid Society in order to uphold both the disorderly conduct count and the charge of resisting arrest. Having succeeded in two lower courts in its case against Matthew Jones, the office of Robert Morgenthau, represented on appeal by Paula-Rose Stark, received an unusual defeat when the Court of Appeals vacated the conviction and threw the case out.

Dorsch, the lawyer originally assigned to represent Jones at his one and only court appearance, has left the Legal Aid Society and is now first deputy executive director of the Civilian Complaint Review Board, which rules on cases of allege police misconduct. In that capacity, he has been reviewing the Court of Appeals opinion in People v Matthew Jones in connection with possible future citizen complaints to the board. Dorsch, though, had handled too many "discon" (disorderly conduct) charges, to remember this one in particular. It was only during a telephone interview for this column that Dorsch learned, that according to court transcripts, the lawyer for Jones who, at the arraignment three and a half years before, had made the motion to dismiss and so laid the groundwork for Little’s appeal and the unusual result, was Eric M. Dorsch. Jones has not filed a complaint with the board, and there has been no civil lawsuit.

Emily Jane Goodman is a New York State Supreme Court Justice 


















The Fight Against Drunk Driving


Eugenio Cidron drank so much at a party at Chelsea Piers last December that he mistook the bike path along the Hudson River for the West Side Highway. After driving his silver BMW for a mile along the greenway, he plowed into Eric Ng, an avid bicyclist, and killed him.

Earlier this month, Cidron, a first-time offender, pleaded guilty to a second-degree manslaughter charge. At sentencing, he faces between 3 and a half and 10 years in prison. Ng’s friends and family are left to grieve his death. “He was just a real joyous, smart, sweet good person,” Ng’s friend Ryan Nuckle told the New York Times.

Eric Ng is one of 463 New Yorkers who were killed by drunk drivers in 2006, according to the National Highway Traffic Safety Administration. Last year, over 13,000 individuals were killed across the United States by drivers who were legally drunk. To put that number in perspective, a total of 3,866 American military have been killed to date in Iraq, according to

In recent years, New York State has passed a series of strict new laws that increase penalties for drunk driving and provide alcohol and substance abuse treatment for first and second-time offenders. Perhaps as a result, the state has modestly reduced the number of drunk driving deaths, with alcohol-related fatalities in New York declining by 5 percent from 2005 to 2006. New Jersey had a 13 percent increase during that same period. Nationwide, drunk driving deaths have remained relatively constant since 1999, frustrating government officials, public health experts and advocates.

At the same time, advocates like Mothers Against Drunk Driving believe that New York could be even more aggressive in keeping repeat drunk drivers off the road by following states like New Mexico, which requires that all convicted offenders have ignitioninterlock systems in their cars. These systems keep the car from starting unless the driver breathes into a breathalyzer device and is not drunk. Advocates would also like to move the focus from prosecution of drunk driving offenses to prevention. This poses a major challenge since a majority of alcohol-related traffic fatalities involve a driver, like Eugenio Cidron, with no prior drunk driving arrests.

The bottom line is that even more dramatic steps might have to be taken to tackle the problem of drunk driving. What is less clear is whether the political will exists for such fundamental change.

New Laws in New York

In the last two years, New York has passed tough new legislation against drunk driving. On November 1, new felony penalties for aggravated vehicular homicide and aggravated vehicular assault went into effect. These allow judges to put drunk drivers in jail for up to 25 years in cases involving vehicular homicide and 15 years in cases involving vehicular assault. The changes also expand the use of ignition interlock devices. This law does not apply to Eugenio Cidron, who was arrested before it took effect.

More sweeping legislation passed in 2006. It included a tougher penalty for those who refuse to take a police-administered breathalyzer test, along with a requirement that offenders with a blood alcohol content of above .18, well above the .08 threshold that defines intoxication, install an ignition interlock system while they are on probation.

In addition, the law requires that every person arrested for driving while intoxicated be screened or assessed for a drug or alcohol abuse problem before their case is resolved. Drug treatment is mandatory for those who test positive and are not sentenced to jail. The goal is to “cast a treatment-centric net over the population of [driving while intoxicated] defendants,” says Michael Yavinsky, the chief court attorney for the Criminal Court of the City of New York.

The Crusade Against Drunk Driving

These new measures come on the heels of over 25 years of aggressive public policy measures designed to tackle drunk driving. For the first two decades, the result was nothing less than a public health miracle.

In 1982, 26,173 Americans died in alcohol-related traffic crashes, according to the National Highway Transportation Safety Administration. By 2002, the number dropped to 17,448 deaths, a 30 percent decrease.

Raw numbers don’t tell the whole story, however. Adjusting for the total number of miles driven, deaths dropped from 1.64 per 100 million vehicle miles traveled in 1982 to .63 in 2002. New York’s rate is about .50 deaths per 100 million vehicle miles traveled.

This means that more than 150,000 drunk driving deaths were prevented in a 20-year period, according to Ralph Hingson, director of the Division of Epidemiology and Prevention Research at the National Institute on Alcohol Abuse and Alcoholism. “That’s more than the combined effect of safety belts, air bags, and motorcycle and bicycle helmets,” says Hingson.

Hingson attributes this success to two factors: the rise of advocacy groups like Mothers Against Drunk Driving and the development of a “body of scientific literature” that documents what works and what doesn’t in preventing drunk driving.

MADD was launched in 1980 by a California woman, Candy Lightner, after her 13-year old daughter was killed by a drunk driver. At the time, 60 percent of all driving deaths were alcohol-related, yet lax social norms about drinking and driving created a “wink and nod” attitude about the problem. As the organization grew – by the end of 1984, MADD had 330 chapters in 47 states – it created a powerful constituency for change. That year, MADD helped persuade President Ronald Reagan to sign the Uniform Drinking Age Act, which denied federal highway funding to states that did not raise their legal drinking age to 21.

Another development that would prove critical was the establishment of the Fatality Analysis Reporting System by the National Highway Traffic Safety Administration in 1975. With this system, every person involved in a fatal car accident is tested for alcohol and drug use. Using the collected data, public health experts can make state-by-state comparisons over time, as well as test the effectiveness of new enforcement initiatives. For example, reporting system data was used to predict that increasing the drinking age from 18 to 21 would result in 700 to 1,000 fewer drunk driving deaths per year. In addition, advocates like MADD use the information to shine a spotlight on states slow to change laws and public attitudes.

MADD’s longest campaign involved convincing state legislatures to lower the legal standard by which a person is defined as intoxicated, from .10 to .08. According to MADD, a 170-pound man who has four drinks in an hour on an empty stomach would have a blood alcohol level of .08.

States were slow to adopt the new standard. Only six states had changed the law by 1990.Then in 2000, President Bill Clinton adopted the new standard nationwide: As with the Uniform Drinking Age Act, states had to comply with the new level or risk losing highway funding. New York complied by November 2003, one of the last states in the country to make the change.

Stalled Progress

After these advances in the 1980s and 1990s, progress stalled. The number of alcohol-related driving fatalities (which includes anyone with a drink in their system, regardless of whether they are legally intoxicated) has increased slightly from an all-time low of 16,572 in 1999 to 17,602 in 2006. “We’ve seen no progress in 10 years; we’re completely stalled,” Susan Ferguson, a researcher at the Insurance Institute for Highway Safety, told the New York Times.

In response, MADD has launched an aggressive push for the expanded use of ignition interlock devices. “Our goal is to get interlocks on all convicted offenders within five years,” says Chuck Hurley, MADD’s executive director. The logic is straightforward: 75 percent of convicted drunk drivers who have their license revoked continue to drive anyway, including 500,000 first-time offenders. “What we’re doing now,” says Hurley, “is a catch and release program.”

Currently, New Mexico and Arizona are the only states that require first-time drunken driving offenders to install the interlock system. In its first year after implementing the new law, New Mexico’s drunk driving fatality rate dropped by over 11 percent. Offenders with interlock systems have a 69 percent lower re-arrest rate than those without the devices, according to research prepared by Richard A. Roth of the University of New Mexico.

The interlocks reportedly cost $125 for installation and carry a monthly fee of $60 to $75.

New York’s recent law expands the use of ignition interlocks, though it is far less comprehensive than the approach used in New Mexico and Arizona. The devices are now required for anyone granted a so-called conditional license who was convicted on an aggravated driving while intoxicated charge. This means that their blood alcohol level was .18 or higher at the time of their arrest. Someone with a conditional license can drive only under certain circumstances and can be barred from driving complely if he or she does not comply with those limts.

In addition, the law closes a long-standing loophole that allowed individuals who had to have the ignition interlocks to evade the requirement by using a company car or a car owned by a spouse or friend. The current law stipulates that the devices be installed in all vehicles operated – as opposed to only those owned – by the offender.

According to Ron Bergstrom, of the New York State Division of Probation and Correctional Alternatives, which is responsible for overseeing the ignition interlock program, there are currently 1,050 units in place for drivers covered by the law. In New York City, ignition interlocks have been mandated in only three cases according to Bergstrom, although he expects that number to increase with the adoption of the new law. Nassau and Suffolk counties are the state’s biggest users of the program.

The devices have been somewhat difficult to obtain. There were only 21 qualified vendors in place across the state last year (the number is now 75).

Other problems exists as well. Many probation departments believed that people could fool the devices by having a friend or companion blow into the tube. New technology that photographs the driver whenever a reading is taken may solve that, however. Another potential problem involves false positives: the technology may prevent even sober drivers from starting their car if it makes a false reading.

The Limits of the Locks

Even if New York were to require installation of an ignition interlock system for all offenders, it would only affect a minority of drunk drivers. Federal government research shows that only 8 percent to 33 percent of intoxicated drivers involved in fatal crashes have prior drunk driving arrests. (The 33 percent comes from Minnesota, the only state that keeps lifetime driving records on file. Most states only record arrests going back three years.)

The case of Eugenio Cidron testifies to the limits of relying on enforcement strategies to combat drunk driving: Aside from a traffic ticket and a seatbelt violation from 2003, he had a clean driving record before he hit Eric Ng, the New York Post reported.

Most drunk drivers manage to avoid the police entirely. Only one in 87 are arrested, according to Hurley.

One option would be to require that ignition interlock devices be installed for all drivers, not just those who have been arrested for a drunken driving offense. In theory, that would have prevented Cidron from starting his BMW. The goal would be to create a “passive safety” device that works unobtrusively, like an air bag. According to the New York Times, car manufacturers like Nissan and Toyota are experimenting with skin-sensing technology embedded in a car’s steering wheel or headrest. The universal use of such technology would let us “make drunk driving the public health equivalent of polio,” said Hurley.

Car safety experts and government officials say this is a long way off. The key is convenience. As Susan Ferguson of the Insurance Institute has said, “We don’t want the soccer mom dropping kids off, going to the grocery store and the preschool, and having to blow into something every time.”

Concerns about reliability and intruding on people's right to drive has led government officials to tread carefully when talking about universal ignition interlocks. “To be frank, we are years and years away from [reliable] technology,” Nicole Nason, the administrator of the National Highway Safety Administration, told the New York Times.

There are less tangible issues as well. Americans are very sensitive about any restrictions being placed on their cars.

Despite such obstacles, MADD has continued to push for the expanded use of ignition interlocks, using an incremental approach. They hope to convince fleet operators (such as taxis and truckers) to adopt the systems. New York State Assemblymember Sam Hoyt is introducing legislation to require the installation of the devices in all school buses. Hurley is also confident about the prospects for rapid technological change, pointing to a recent agreement between the United States Department of Transportation and major car manufacturers to devote $10 million to researching ignition interlocks.

Underlying the debate about preventing drunk driving is the tradeoff between safety and convenience. Clearly, there are things that New York can do to reduce the number of drunken driving deaths. Whether citizens are ready for these changes is another question entirely.

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.




Gun Laws Confront Legal Challenges

Laws that prohibit gun possession may be unconstitutional in Washington, D.C., but they are not unconstitutional in Brooklyn. And that is bad news for Rashawn Handsome.

Handsome was arrested when police showed up at his Wyckoff Gardens apartment with a search warrant and found three guns in a sneaker box. He had no permit to own or carry them, but because statutes on weapons possession in a home are different from other laws on weapons, Handsome was charged with a misdemeanor instead of a more serious felony. With the class A misdemeanor charge, he faces a one-year sentence.

His defense: the right to bear arms under the Second Amendment to the Constitution of the United States. Raising an argument not previously made by a criminal defendant in New York, Handsome and his court appointed counsel, Robyn Lear of the Legal Aid Society relied on a recent federal case decided by the U.S. Court of Appeals for Washington D.C., Parker v District of Columbia. To the surprise of many, that court, the federal court just below the Supreme Court, agreed with a group of Washington, D.C. gun owners that laws making gun possession illegal, do indeed violate the Second Amendment.

The U.S. Supreme Court is now deciding whether it will hear an appeal of that decision.

The closest any federal court in New York has come to this issue was in non-criminal litigation. In that instance, the court decided, "The right to possess a gun is clearly not a fundamental right."


The Constitution and Gun Control


Some civil lawsuits have tried to challenge New York weapons laws on the grounds that they violate the Constitution. All have failed.

Using the right to possess guns as a defense in a criminal case in New York, though, was something new. Handsome’s attorney argued that the case against his client should be dismissed because state laws making possession of an operable firearm without a permit illegal are themselves unlawful.

A loaded .44 Magnum revolver, a .38 caliber revolver and .25 caliber semi-automatic pistol along with ammunition, were in the sneaker box. Still, how could Handsome be prosecuted for something that is protected by the Constitution, the defense asked in moving to dismiss the charges.

When People v Handsome came to New York City Criminal Court in Brooklyn, Judge Michael Gerstein refused to dismiss the charges. Instead, he totally dismissed the opinion of the federal court, a far loftier court than his. He rejected the analysis in the Washington case and pointed out that other federal courts, including the Supreme Court, had at different times, found that "the right to bear arms" did not mean that individuals had such a right.

The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed." To Gerstein, this means state militias (or in modern times the National Guard) have the right to possess weapons. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."

The D.C. federal court, though, had written that "the Second Amendment would be an inexplicable aberration if it were not read to protect individual rights," as well as militias. Gerstein boldly said that the federal judges were wrong. In fact, the judge wrote, "We find the reasoning of Parker to be deeply flawed, such that even if its holding were to be deemed applicable to our statute, which it is not, we would decline to follow it unless required to do so by our appellate courts." Although the Supreme Court of the United States has in recent years invalidated, for other reasons, sections of the Brady Handgun Violence Protection Act (named for Jim Brady who was shot during an attempted assassination of President Ronald Reagan), Gerstein cited the leading Supreme Court case, US v Miller, decided in 1939. In that case, the justices said an individual’s possession of a shotgun was not shown to have a reasonable connection to a well regulated militia or ordinary military equipment or that its use could contribute to the common defense." Therefore the Second Amendment did not protect possession of the shotgun. The conclusion in most decisions up to this point has been that the Amendment, using the language, "the right of the people," cannot be read out of the context of state militias. The Supreme Court could revisit this if it chose to review the Parker case – and take on one of the most divisive issues in the country

In his scholarly decision, Gerstein adopts the view that the Second Amendment was enacted to protect of state militias from the federal government and not to declare the individual’s right to possess arms. With the disappearance of state militias, courts have generally held, the purpose of the Second Amendment is moot. Parker is "founded on a revisionist view of the Constitutional Convention, which view is far from generally accepted," said Gerstein.

Going beyond the legal history, the New York judge used the decision to present statistics about the "nationwide proliferation of deaths and injuries caused by privately owned guns." Since the 2007 decision in Parker, Washington, D.C. has experienced 750 armed robberies, 520 armed assaults and 111 homicides, according to sources cited by Gerstein in his decision. In the United States, more than 30,000 people are killed each year by guns in murders, suicides and accidents with another 65,000 suffering gun injuries.

While the Legal Aid Society says that no decision has been made about appealing the Handsome decision, any reversal on appeal is generally viewed asextremely unlikely, and therefore unlikely to be pursued.

Emily Jane Goodman is a New York State Supreme Court Justice 

Counting Convicts

Residents of Groveland, New York, upstate in Livingston County, have something to get excited about. According to a report put out this year, 62 percent of the town’s population is incarcerated. That, in itself, is not something to be thrilled about, but because of the way the federal government counts prison populations, the presence of so many convicts gives a resident of Groveland 2.5 times the voting power of people living elsewhere in the county and more clout that their downstate counterparts.

The scenario is repeated elsewhere in New York State and across the country. It has prompted a growing discomfort with the voting power of upstate districts as opposed to downstate ones and spurred efforts to change the way the U.S. Census counts prisoners. The Census counts prisoners where they are incarcerated rather than where they came from. That count, conducted every 10 years, is used to draw lines for local, state and federal legislative districts and ensure all residents have equal representation and access to government. Because the Census inflates the population in areas with prisons – and in New York that tends to be more rural, upstate counties – it gives the residents of those districts more representatives in the state legislature and the House of Representatives than they would otherwise have. As a result, New York advocates and elected officials want the bureau to change the way it counts prisoners before the upcoming census in 2010.

This debate over this issue is particularly stark in New York. The so-called Rockefeller Drug Laws, enacted in 1973, have made New York State one of the strictest in the country for minimum sentencing of first time drug offenders. Since implementation of the laws, the prison population has grown tremendously. Today 65 percent of the state’s prisoners come from New York City, but the Census counts them as residents of the upstate areas – even though New York State law defines residency as a place of “voluntary” inhabitance and prisoners are not voting members of the communities in which they are incarcerated.

Unequal Votes in New York

Including prisoners as residents of the counties where they are incarcerated gives those areas increased political clout, according to a report by the Prison Policy Initiative. Advocates argue that this practice has a huge impact on the drawing of district lines, especially at the local level.

Groups such as the Brennan Center for Justice, DEMOS, Citizens Against Recidivism and the Coalition for Parole Restoration argue that including prison populations in the place of their incarceration “dilutes” demographics by enlarging or qualifying districts for more representation than their actual population deserves.

Based on 2000 Census information used to draw district lines, Queens contains some of the most over-populated State Senate districts in New York with about 4 percent more people than average, according to one study. In short, Queens residents are under-represented in Albany, since their districts have far more people than some of the upstate ones.

The report found that 16 counties in the state included prisoners in their population numbers, while 13 others chose not to. The issue is a difficult one for counties. Sifting through Census population reports to determine the number of prisoners in a county can be a daunting task, according to Peter Wagner, executive director of Prisoner Policy Initiative and author of the report. As a result, Wagner writes, counties must choose between using inaccurate Census data to redraw district lines or adjusting population totals to exclude prisoners. Including prisoners can create imbalance at the local level, giving people in some parts of a county more voting power than those in other areas of the same county. Of the 16 counties including incarcerated people, five contained at least one city district where prisoners made up over 20 percent of the population — Chautauqua, Livingston, Oneida, Madison and St. Lawrence.

Some elected officials and advocates want all counties to exclude prisoners before drawing district lines. This, though, would be only half the battle. The Census Bureau does not provide counties with sufficient personal information so that those prisoners can be counted back in their home districts.

Calls for Change

While some advocates would like to see the Census Bureau change its policy on counting prisoners in counties, the likelihood that this will happen in time for 2010 appears slim. There is, however, an interim step. The Census Bureau report on county populations used to draw district lines does not indicate how many of the people in the total population are prisoners. The report that does provide that information comes out several months later, after many states have redrawn new district lines. To deal with this, some advocates want the Census Bureau to release its prison counts earlier so district lines can be drawn based on the population of actual residents.

State Senator Eric Schneiderman, whose district includes the Upper West Side, Morningside Heights, Washington Heights and Inwood, has announced a formal letter writing campaign to call upon the Census Bureau to change its policy for counting prisoners as well as including prisoner information in the initial Census to allow counties to more accurately draw district lines. “Disenfranchised people become an undeserved source of political power for legislators who benefit from locking up more people for longer sentences,” Schneiderman said.

Other elected officials also have called on the Census Bureau to collect the home addresses of all incarcerated people in the next census. “By counting prisoners in the places where they are incarcerated, the Census Bureau is effectively shortchanging my constituents from receiving fair representation,”said Assemblymember Adriano Espaillat.

Schneiderman has introduced legislation in the Senate to bring the counties into compliance with the state constitution’s definition of residency as a person’s “voluntary” residence. The legislation, also sponsored in the Assembly by Espaillat, would require state and local prison facilities to collect home addresses of all prisoners. The information would be provided to the State Board of Elections and used to adjust Census Bureau population data by noting where prisoners legally reside and mandating that the revised data be used to draw congressional, state and county districts.

As the Census draws nearer and legislators prepare for another round of redistricting, excluding prison populations from district numbers could put a number of upstate rural representatives at risk of losing their seats, given the unequal balance of district sizes across the state. At the same time, it would create new districts in the city.

For advocates and elected officials trumpeting the cause, there is some optimism. Wagner believes that after counties are presented with the proper data, they will remove prisoners from their counts. “We are expecting all of [the counties] to do it,” he said. But for now, everyone in Queens and other reportedly underrepresented counties will have to wait and hope all this activity means that in the next decade their votes will be worth a little more than they are today.

Andrea Senteno is program associate for Citizens Union Foundation, which publishes Gotham Gazette. Jay Cerrato is a research and policy intern.

Police Limit "Hanging Out"

My friend and I were walking toward the subway, relieved to be out of school, when we heard a voice behind us. “You,” the voice said. It was deep and authoritative.

I turned to see a man dressed in a light blue shirt and dark pants. “Security officer,” I thought. I was ready to ignore him -- after all, I wasn’t in school anymore. Then I noticed the gun at his waist. He was a police officer.

Walking toward us, he signaled to my friend. “Let me see your ID.” My friend handed the card over to the officer. Turning it over in his hand, the officer looked at him, his eyes hidden behind shades. “Go to the dean’s office to get this back,” he said. He turned and walked away.

It was the second time that week that one of my friends had given their school ID to a police officer only to be told they would have to get it back at school the next day. This constitutes a major inconvenience, since students need their IDs to get into their school, Brooklyn Technical High School. To get the ID back, they have to go through another entrance and convince the security agents that they are students by jumping through hoops such as showing a class schedule and then answering questions to prove its theirs. This can take around 20 minutes -- just to get in the school.

More commonly, police will tell Brooklyn Tech students sitting on the steps of nearby apartment buildings, standing in the doorways of corner stores or hanging out on crowded sidewalks to go home.

Students can no longer hang out outside the school or even in the area. The police do not allow it. What was once a mass of chatting teens spread over several blocks has become a steady line of pedestrians, headed to the subway. And the situation is not limited to Brooklyn Tech.

No Loitering Allowed

When teens at Youth Communication, a nonprofit youth media organization, surveyed students at high schools around the city, they found that being reprimanded by police has become a normal part of teenage life in New York. Police officers have started clamping down on teens hanging out where, since time immemorial, they have always hung out: around their schools.

Of the 19 students surveyed from throughout the five boroughs, only four said that their schools and the local police allowed them to stay outside their school after classes ended. Many others responded as though the very idea was foolish. “Of course, no,” gawked Yaki Lin, 17, a student at Flushing International High School in Queens.

The teens said that both school security agents and the police regularly told them to “move along.” Some said that police even escorted students to the next block. This approach is not limited to so-called dangerous schools – ones cited by the state for high incidents of crime or required by the Department of Education to use metal detectors to scan all students entering the building.

New York City has the authority to institute this policy at any public school due to a section of the New York Penal Law, which says that a person is guilty of loitering when he or she “loiters or remains in or about school grounds, a college or university or grounds or a children’s overnight camp.”

Protecting Public Safety

Last February, Lee McCaskill, who was then principal at Brooklyn Tech, told the student body that the police clampdown on loitering near the school was prompted by safety concerns. Students from Tech were being robbed by outsiders and getting involved in fights, he explained in an announcement on the school’s Web site. “We are working very closely with the 88th precinct and other law enforcement officials to identify those involved in acts such as rowdiness, fighting, assault and even robbery,” the announcement read. It went on to ask the students to “whenever possible, travel in groups and leave” in a timely manner.

“ Students not involved in after-school activities should leave the school area immediately. Do not hang out near the subway, on our neighbor's property or other inappropriate areas. The officers of the 88th precinct may also ask you to move swiftly to your destination,” it continued,

A recent call to the New York City Police Department confirmed that the police presence at Tech was a response to fights and robberies in the neighborhood.

Students surveyed at other schools revealed that complaints from people who live near the school spurred police to approach students and tell them to find somewhere else to socialize.

“ We can’t stay next to the building because people in the neighboring apartment buildings complained to the school over noise,” said Ilya Arbit, 17, from Edward R. Murrow High Schoolin Brooklyn.

How to Hang Out

Many students find the policy inconvenient, especially if they live far from the school or want to wait for friends. “The police presence forced us to rush our after-school plans,” said Lionel Cox, 19, a former student at Tech, which draws students from all over the city. “We weren’t allowed to wait for friends who hadn’t left school yet or who were still in stores.”

Some of the teens surveyed have learned to outwit the police by walking, instead of standing, in front of the school building. As long as they do not stop in any one spot, the logic goes, they will not attract police attention. Others simply move to a block where police are less likely to go.

Many more teens end up spending money in local stores or businesses near their schools -- pizza parlors, corner stores, billiard halls or bowling alleys - just so they have a place to hang out with friends after classes end. And as they hang out in these establishments, the teens say, they buy and eat junk food. As private property, stores are not covered by the loitering laws.

A few especially productive students have found that after-school clubs, such as debate teams and the Model UN, provide a good way to socialize with classmates after school, far from the watchful eyes of the NYPD. But over all, when it comes to facing police officers or extracurricular activities, most teens choose the police.

Donald Moore is now a senior at City-as-School in Brooklyn. This article is adapted from the pages of our partner youth communication.


Policing the Police

The case of two civil rights lawyers who say they were victims of police abuse has attracted outrage among ministers and other black leaders who say that New Yorkers, particularly people of color, continue to suffer mistreatment at the hands of the police department.

Photo (c) Kevin Connors

The case occurred as several reports have highlighted problem with police conduct. In August, the Civilian Complaint Review Board, the independent board charged with investigating police behavior, found that the police department is increasingly unlikely to prosecute officers on charges of misconduct. A month later, the New York Civil Liberties Union criticized the complaint board itself for being too lax and lenient on the police. And even according to the mayor's own statistics, complaints against the police continue to increase.

The Warren Case

Against this backdrop, the new Interfaith Commission on Police Accountability gathered on the steps of City Hall on September 13 to protest alleged abuse. "Too frequently, we listen to accounts of the young and the old regarding their mistreatment at the hands of some of the members of the New York City Police Department," a statement signed by 12 religious leaders said. "And while residents of our communities suffer indignities, personal injury and in some cases death, we see no meaningful efforts on the part of Mayor Michael Bloomberg or Police Commissioner Raymond Kelly to eliminate the problem."

The ministers expressed outraged over the arrests of Evelyn and Michael Warren. The Warrens, who appeared at the rally, are civil rights attorneys who are married to each other.

Michael Warren told the News that he saw officers hitting a handcuffed suspect in Prospect Heights, Brooklyn, at around 6 p.m. in June 21. "It reminded me of lions chasing down a zebra," Michael Warren said. "We got out of our cars. ... We expressed our concerns and requested that it stop."

Michael Warren said he then returned to his car but Sgt. Steven Talvy came after him. According to Michael Warren he was punched by an officer and forcibly removed from the vehicle."

Michael Warren, who specializes in police brutality cases, was charged with obstructing government administration, resisting arrest and disorderly conduct. Evelyn Warren faces disorderly conduct charges. "I got hit in the jaw, upside the head and on my lip a few times, and you can see that my pants are torn, but I'm fine. I'm great," Michael Warren told a crowd of 20 supporters the next day. Evelyn Warren was allegedly struck as well.

A police source told the News that officers were arresting a man on drug and theft charges when the Warrens stopped their car to criticize them. The source also said Evelyn Warren scratched an officer's face while she was being arrested.

The Warrens' cases will next be heard on October 23 in Brooklyn Criminal Court.

Demands for Change

Whatever happens in the Warren case, the ministers at the September 13 interfaith press conference want changes in the way the city deals with the police. When the 30 or so ministers and their supports were asked whether they themselves had been subjected to police abuse, virtually every hand went up, however reluctantly.

Police abuse is "not just against Michael Warren-and his wife who are exemplary citizens, but those not as high profile who get even worse abuse," said State Senator Bill Perkins of Harlem. He called the police department "out of control" and said that many in the black community feel "terrorized."

The interfaith group put forth four proposals that in one form or another have been kicking around for decades. They are seeking:


  • A "permanent independent special prosecutor," because, they say, it is "unrealistic" to expect district attorneys to prosecute police when they are so dependent on police for their own investigations.



  • "Accountability in the office of the police commissioner"


  • That the borough presidents, not the mayor, appoint the majority of the members of the Civilian Complaint Review Board


  • Creation of "a community connection" for the board in all boroughs and community boards, instead of just an office in downtown Manhattan.

    In another recommendation, City Councilmember Charles Barron of East New York called for passage of a bill mandating that police interrogations be videotaped or recorded. This, he said, would have the effect of "protecting the officers and those falsely accused." But the office of City Council Speaker Christine Quinn had no response to any of the proposals put forth at the press conference. While hearings were held in the spring on police-community relations, no substantive legislative agenda has come out of them.

    The Civilian Complaint Review Board

    Related Articles

    The Failure of Civilian Oversight
    The former executive director of the Civilian Complaint Review Board argues that the agency is not doing the job New Yorkers need it to do.

    Stop and Frisk
    Police stopped and searched more than half a million New Yorkers in 2006, making the procedure as common in some communities as brushing one's teeth.

    Up Against the Constitution
    The police department considers its handling of protests at the 2004 Republican convention a major success, but the courts do not seem to agree.

    A Police Shortage
    A police presence prevents crime, writes the head of the City Council Public Safety Committee, so we cannot afford to loose officers.

    The city does have mechanisms intended to improve police-community relations, but critics charge they are not effective.

    The number of complaints has risen dramatically in the last several years. Civilian complaints against members of the department went up by almost 50 percent from fiscal year 2003 to 2007, with 7,662 complaints last year. The department attributed the increase to the creation of the city's 311 non-emergency hot line, which has made it easier to file a complaint.

    In its report "Mission Failure: Civilian Review of Policing in New York City, 1994 - 2006," the civil liberties union said: "Even as complaints of police misconduct have increased sharply over the past five years, the CCRB has been closing more than half of all complaints without an investigation." (For a commentary on theboard by its former executive director, see "The Failure of Civlian Oversight".

    Overall, the board has substantiated only about 5 percent of the complaints -- well below national averages. Andrew Case, a spokesman for the board, maintained that many of the complaints were not pursued because the person filing the charge did not follow through as required. Many complainants,he said, fail to appear at the board's office and make the required formal statements.

    Case agreed with the comment on the police department's failure to cooperate with the board, but disputed the NYCLU's computation of its substantiation rate.

    "True to form, the NYCLU has distorted or ignored the facts to reach its predetermined conclusions," Deputy Commissioner of Public Information Paul Browne said in a statement. "The NYCLU cherry-picks data and information, much of it outdated, to distort findings."

    To remedy the situation, the NYCLU offered several proposals for reform. These include establishing an office to conduct audits of the complaint board, providing more resources to the board and setting up complaint board units in each borough.

    Even in those cases where the Civilian Complaint Review Board does find wrongdoing, the police department frequently rejected the board's findings and recommendations. "When discipline is imposed," the report states, "it is often strikingly lenient in light of the severity of the misconduct documented by the CCRB."

    The NYCLU could get support for this contention from the complaint board itself. From March 1 to June 30, the police department declined to seek internal departmental trials against 31 officers, most of whom were charged with stopping people in the street without probable cause or reasonable suspicion, according to figures from the board reported in the New York Times. In comparison, over the previous four years, the department reportedly declined to pursue only 49 officers.

    The police department has faulted the board for the decline in prosecutions, saying it does not apply "appropriate legal standards." But some at the board disagree. They reportedly believe the department is simply too easy on its people.

    "Misconduct is part of a continuum of behavior and the police commissioner is entitled to draw the line wherever he wants to draw it, meaning he can impose discipline where he sees fit," board chair Franklin Stone told the Times. "But he cannot tell us that the standard we are applying is inappropriate or suddenly, after 14 years, that it has become inappropriate."

    A Troubled Past

    The city's attempts to deal with civilian complaints of police abuse have a troubled history, recounted on the complaint board's own web site. And the New York Civil Liberties Union has a history of advocating to make it stronger.

    When Mayor John Lindsay put four people from outside the department on a review board in the late 1960s, police union president John Cassese said, "I'm sick and tired of giving in to minority groups with their whims and their gripes and shouting."

    The Patrolmen's Benevolent Association proposed a referendum to bar civilians from the board, and it passed overwhelmingly. The City Council restored civilian participation in 1986 and in 1993, and under Mayor David Dinkins, the board became the all-civilian body we have today.

    But that move spurred controversy. In September 1992, 10,000 police rallied outside City Hall to protest the Dinkins administration's policy on several issues, including the mayor's support for City Council legislation creating a truly civilian board and his opposition to issuing 9mm guns to police. Journalist Wayne Barrett has recounted future Mayor Rudolph Giuliani's participation in this race-tinged rally. "He screamed 'bullshit' twice in a condemnation of Dinkins' actions." When Giuliani beat Dinkins in 1993, he quickly moved to slash the complaint board's budget.

    The issue of civilian review of the police has remained largely absent from the front pages since. The arrests of Evelyn and Michael Warren, working their way through the courts and being protested in the streets, may not be high profile enough to force all sides to sit down together and hammer out some new reforms. But the incident has clearly touched a long-frayed nerve, especially among black New Yorkers. "We need things to change," said Rev. Charles Curtis, pastor of the Mount Olivet Baptist Church in Harlem at the press conference. "We pray that something will be said to cause change."


    A Dwindling Police Presence

    Photo of police officers in riot helmets

    Photograph (cc) 2006 Rabih Nassar


    Imagine walking alone along a dark street at night, perhaps heading back to your apartment after picking up some groceries. All of a sudden, you notice a pair of footsteps behind you clapping on the pavement, growing faster and faster. You turn to see a figure briskly walking between the shadows of street lamps, one hand held behind his back. Would you feel scared? Threatened?

    Now replay the same scenario with a New York City police officer standing at the end of the block. Whether or not this shadowy figure was about to commit a crime, wouldn’t the presence of an officer make you feel calmer and safer? Of course it would, and it should, because the chances of anyone being mugged are much less where there’s a strong police presence. It’s a fact backed up by both scientific data and common sense.

    Sadly, while the number of street corners in New York remains the same, the number of officers standing on them is dwindling. And our sense of security will soon dwindle with it.

    Since reaching a high of 41,000 police officers in 2001, the ranks of the NYPD have shrunk to less than 36,000. Since 9/11, no other major metropolitan police department has reduced its staff. I find it sad and strange that we alone have allowed our police force to decrease, especially considering New York always sits in the crosshairs of terrorists.

    More Police, Less Crime

    Related Articles

    Policing the Police
    The number of complaints against the police is on the rise, and critics charge the department and the civilian agency that monitors it do not do enough to stop the abuses.

    The Failure of Civilian Oversight
    The former executive director of the Civilian Complaint Review Board argues that the agency is not doing the job New Yorkers need it to do.

    Stop and Frisk
    Police stopped and searched more than half a million New Yorkers in 2006, making the procedure as common in some communities as brushing one's teeth.

    Up Against the Constitution
    The police department considers its handling of protests at the 2004 Republican convention a major success, but the courts do not seem to agree.

    This drop is particularly troubling if we remember our recent history. Over the past three decades, the novel title that would best describe New York would be "A Tale of Two Cities." In the 1970s and 1980s, crime was rampant, drugs were plentiful, and economic development had come to a halt, leaving the government bankrupt. Today, we are the safest big city in the country, residents and businesses are scrambling over themselves to move here, and our coffers are plush with surpluses.

    The remarkable change in New York City can be directly tied to the drop in crime – a decrease of 75 percent since 1990 – which can be directly tied to a decision to flood the streets with more cops. The Safe Streets, Safe City initiative, started by my father City Council Speaker Peter Vallone Sr. and Mayor David Dinkins in 1991, increased the police department from 31,000 to 41,000 officers over 10 years. Although police departments were expanding around the country, that jump was three times the national average, and, in turn, crime rates here plummeted more than in other metropolitan centers.

    If you don’t believe me, ask the experts. In fact, New York City has been the focus of many academic studies concerning the unprecedented national decrease in crime during the 1990s, including one by noted economist Steven Levitt. In his bestseller "Freakonomics," which was co-authored with Stephen J. Dubner, Levitt proves that more police means less crime even when other factors are taken into account. Combined with more aggressive prosecutions, Levitt argues, New York’s influx of officers enabled it to outpace the rest of the country in lowering its crime rate.

    Of course, having been a prosecutor for six years, I could have told you the same thing without the complicated economic analysis. More officers mean more patrols to canvas and protect our neighborhoods. It means more low-level criminals will be caught and sent to prison before they commit worse acts. And it means more eyes and ears to spot suspicious activity before a terrorist can carry out a deadly plot.

    A Shortage of Officers

    Unfortunately, we are expecting the NYPD to do more work with fewer resources. Not only is our city expanding and growing every day, but our officers now need to be the city's first line of defense in the war against terror. I led the fight in the City Council for more police, and last year the mayor listened, adding funding for 1,200 additional officers in the budget. Yet today the Police Academy cannot produce classes large enough to meet the attrition and retirement rate of active officers, let alone out pace it at a rate needed for this expansion.

    The root of the officer shortage seems to be the poor compensation package given to rookie cops. New York City police officers have a difficult and dangerous job, one they deserve to be paid handsomely to do. The initial base pay of $25,000 does little to attract quality recruits, and the maximum pay of $59,000 does little to keep quality officers when other counties offer twice as much.

    Also contributing to the shortage is the low esteem many of our elected officials hold for our police. While critics have pointed to the disproportionate number of members of minority groups stopped by police, according to recently released police statistics, they have neglected other data. (See related article.) For instance, those statistics showed that police stop minorities in almost the exact same proportion as the race cited in criminal complaints by citizens. The information on stops was distorted and many irresponsible elected officials loudly proclaimed that these statistics were proof that the entire NYPD was racist. It would be naĂŻve at best to assume this attitude does not negatively affect police performance and recruitment.

    Without more recruits it will not take long for police performance, and our way of life, to suffer. For example, if the ranks continue to hemorrhage officers – and sadly, they show no signs of stopping – Commissioner Raymond Kelly said at a recent Public Safety Committee hearing that he will have to abandon Operation Impact, one of the department’s most successful programs. That initiative brings the same general principle – more cops means less crime – to the local level, flooding high crime areas with an infusion of cops. Police officials credit Operation Impact for virtually saving several crime-ridden neighborhoods, where the quality of life has since improved dramatically.

    Public safety has been the catalyst for almost every positive development in New York City. No one would open a store if they and their customers were being robbed. No one would invest in housing if tenants were being attacked. Our police force is the dam that holds back the waves of squalor and danger that characterized the old New York.

    That dam is weakening, and we must reinforce it before it is too late. We must ensure our officers are fairly compensated and fairly judged for their noble work, allowing the ranks of the NYPD to swell to past levels. Because the next time you’re walking down the street, a blue uniform on the corner could make all the difference in the world.

    Councilmember Peter F. Vallone, Jr. represents Astoria and is the chair of the City Council's Public Safety Committee. He has sat on the council since 2002.


    A Tougher Policy on Protest

    Photo of police officers in riot helmets

    Photograph (c) 2005 Frank Lynch


    Mayor Michael Bloomberg and Police Commissioner Ray Kelly have never expressed the slightest doubt over the police's handling of the protests at the 2004 Republican National Convention in New York City. "The Republican National Convention was perhaps the finest hour in the history of the New York City Department," Kelly has said.

    The courts, though, have been less enthusiastic. Few cases have ended in conviction, and the city has had to pay out hundreds of thousands of dollars in damages with hundreds of additional cases pending.

    The arrests at the convention represent only the most obvious sign of the city's increasingly tough line on protest. In the past several years, the city has denied permits, arrested protestors and stepped up its surveillance on political dissidents. While the policy comes from on high, police officials have had to defend and explain it, while individual cops have had to enforce it.

    Some find the administration's stance hard to fathom. "This is a level-headed police department lead by a level-headed headed police commissioner. What in the world are they doing?" one civil liberties lawyer, Jethro Eisenstein, has said.

    What they are doing, Bloomberg and Kelly would argue, is fighting terrorism. "We live in a more dangerous, constantly changing world, " Kelly has said in calling for more police powers to monitor anti-war activists, like alternative transportation advocates and Billionaires for Bush.

    Giuliani and Bloomberg

    Like their counterparts elsewhere in the nation, for much of their history the New York City police have taken a dim view of protest. Following what many saw as police abuses during the 1960s and 1970s, the courts and city officials put restrictions on police surveillance of political activity and on police conduct at protests. Dissenting political activity seemed, if not welcome, certainly tolerated.

    But the official tolerance of protest faded during the Giuliani administration. Mayor Rudolph Giuliani limited access to City Hall plaza for press conferences and protests and restricted the movements of marchers at the 1998 "Million Youth March" in Harlem, where police confined protestors in pens, then stormed the stage to end the rally and buzzed the crowd with helicopters.

    Time and time again, the courts stepped in to stop the administration from playing it fast and loose with the Constitution. Norman Siegel, a lawyer, later said he brought about 27 challenges against the Giuliani administration on First Amendment issues and won virtually all of them.

    Related Articles

    Policing the Police
    The number of complaints against the police is on the rise, and critics charge the department and the civilian agency that monitors it do not do enough to stop the abuses.

    The Failure of Civilian Oversight
    The former executive director of the Civilian Complaint Review Board argues that the agency is not doing the job New Yorkers need it to do.

    Stop and Frisk
    Police stopped and searched more than half a million New Yorkers in 2006, making the procedure as common in some communities as brushing one's teeth.

    A Police Shortage
    A police presence prevents crime, writes the head of the City Council Public Safety Committee, so we cannot afford to loose officers.

    The hardline stand continued into the Bloomberg administration, exacerbated by security concerns after the terror attacks of September 11, 2001. "The Bloomberg administration is less forgiving of dissent than the Giuliani administration, and I never thought I'd say that," Dan Perez, a lawyer who has represented protestors, said in 2004.

    As people throughout the world prepared to protest the war in Iraq on Feb. 15, 2003, the police department, citing security concerns, denied New York demonstrators a permit to march by the United Nations. Instead, police directed demonstrators to block-long pens created with barricades. More than 250 people were arrested, many for trying to get to the rally. Others tried to leave but were prevented from doing so.

    "The NYPD crackdown on peaceful protest that happened at the anti-war protests [in 2003] cannot be repeated at the convention," Christopher Dunn, associate legal director of the New York Civil Liberties Union, said at the time.

    The GOP Convention

    The Republican convention in New York City - the first one ever held in the city - brought out memories of the Democratic convention in Chicago in 1968, when the whole world watched police clash with and beat protestors on that city's streets. Clearly it was not a scene Mayor Michael Bloomberg wanted repeated - either for what it would do to the city's image or to the re-election prospects of President George W. Bush, who the mayor then supported. Law enforcement officials and others also feared the convention, attended by a who's who of GOP leaders, would provide a target for terrorists.

    "The threat of terrorism is just about paramount in all of our thinking for all of these events," Chief of Department Joseph Esposito told reporters before the convention. "We'd have to be out of our minds not to have that as the paramount concern."

    In response, the city strictly regulated access to the area around Madison Square Garden. It refused to allow a mass rally in Central Park the day before the opening gavel, saying the thousands of protesters, unlike, say, thousands of concert goers, would ruin the lawn. It set aside a pier to hold anyone arrested and mobilized all its resources.

    Police arrested about 2,000 people during the convention. In one day - Aug. 31, 2004 - they rounded up about 1,100 protesters. Rather than being issued summonses and promptly released, hundreds were fingerprinted and detained for more than a day.

    In some sense, the operation could be seen as a success. The events in New York in 2004 did not produce film footage like that from Chicago in 1968, nor did terrorists strike.

    Demonstrators, their lawyers, journalists and others, however, quickly challenged the idea of the police operation as an unmitigated success. Eyewitness accounts, many backed up by videotapes, disputed police accounts of what happened on Manhattan streets. In the eight months following the convention, as many as 400 demonstrators had their cases dismissed as videotapes showed either that they had not committed the crime of which they were accused or that there was insufficient evidence of their guilt. As of this August, the city faced 605 lawsuits sparked from the arrests. It already had to settle 35 cases for a total price tag of $694,000.

    The New York Civil Liberties Union filed suit, challenging three aspects of the city’s convention strategy: the mass arrests; the no summons policy, which resulted in the detention of many of those arrested; and the blanket fingerprinting. The city, according to Dunn, has already backed down on the fingerprinting, having said it destroyed the records. Now, the plaintiffs in the case await the release of thousands of pages of police department surveillance records. The federal courts have ordered their release, but the city has been slow to comply.


    Protests on Wheels


    While there haven't been demonstrations to rival the size of the RNC convention's in the past three years, the police have clashed repeatedly with Critical Mass, a monthly group bicycle ride. The city has sought to limit the ride, targeting cyclists and confiscating bikes. In the two years after the city first decided to crack down on Critical Mass - the impetus for the tough policy was apparently the GOP convention - it spent $1.3 million to suppress the activity, according to Times Up!, an environmental group associated with Critical Mass.

    When judges expressed doubts over the city's strategy, the administration sought to change the rules on mass gatherings -- with Critical Mass in mind. After its first proposal was widely assailed for being so strict it might make it difficult for a group of friends to walk down the street, the city issued a new version, requiring any group of 50 or more people to get a permit before gathering. A judge ruled the city can use the rules to regulate Critical Mass - and they have. At the June ride, police arrested and handcuffed 15 cyclists. They were released quickly and received tickets, perhaps indicating that tensions between the city and the cyclists were abating.

    Watching the Opposition

    During the anti war and other protests of the 1960s and '70s, people organizing any kind of protest activity took it for granted that the police had an eye on them. At some demonstrations, protestors would even call out to those they believed to be undercover cops - the shoes were widely believed to be the giveaway.

    That changed in the 1980s, though. In response to a class action suit, a judge set up a series of strict guidelines – known popularly as Handschu after the lead plaintiff – governing police oversight of political activity. In particular, police could not investigate political groups without “specific information” that they were planning a crime. These restrictions remained intact for decades, much to the irritation of some officers.

    The terrorist attacks of September 11, 2001, provided the department with an opportunity to try to have the guidelines changed. In 2003, Federal Judge Charles Haight ruled that terrorism presented "dangers sufficient to outweigh any First Amendment cost." In response, Jim Dwyer of the Times reported in December 2005, police spied on people "protesting the Iraq war, bicycle riders taking part in mass rallies and even mourners at a street vigil for a cyclist killed in an accident." To mask their true identities, the police not only watched the events but participated in them, in some cases, protestors have charged, provoking trouble.

    In February, Haight appeared to reverse himself, ruling that, once again, the police could not videotape people at a political event unless they seemed likely to break the law. Zeroing in on two events in 2005 — a march in Harlem and a demonstration by homeless people in front of Bloomberg's Upper East Side home — the judge said the city had little justification for taping the protests. There was, he said, “no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens.”

    A few months, later, though, the judge changed direction again deciding that the people at the two protests may have been candidates for videotaping after all. New information, he said, indicated the demonstrations might have become “unruly.”

    For its part, the Police Department considers surveillance a useful tactic and undoubtedly hopes the judge does not change his mind again. In memos involving a 2002 incident revealed under a court order and reported in the New York Times, police officials discussed how “proactive arrests” and surveillance helped avoid problems at a gathering of the World Economic Forum in the city in 2002. Paul Brown, deputy commissioner for public informatin, said that the event attracted “hard-core violent elements that were surveilled by the NYPD. Yes, we used surveillance techniques to track and hopefully disrupt violent elements. That’s proactive.”

    Given that Handschu has been in the courts since 1971, it will no doubt remain there, subject to future twists and turns. The legal tug of war between the police and demonstrators and civil libertarians on an array of issues seems unlikely to end any time soon.

    Dunn of the civil liberties union said his organization wants to ensure the city cannot repeat the tactics they used at the GOP convention. “The whole point of our case it to make sure the department doesn’t use these policies again,” he said.

    The department under Bloomberg and Kelly shows little sign of backing down, though. Looking back on the events of 2004, Kelly recalled in a television interview that thousands of protesters came to New York City. In meeting up with the New York City Police Department, he said, “they met their match.”  

    Stop and Frisk -- Who's Being Searched?

    In minority communities across the city being stopped and frisked has become routine, according to some community leaders. "It's almost like brushing your teeth in the morning, because in our community you never know when you're going to get stopped," said Ken Cohen, director of the Metropolitan Council of NAACP Branches in New York City.

    Cohen and others regularly offer advice on how to respond when halted and patted down. They tell young people to follow directions and remain nonconfrontational, even if it means disregarding their right to ask for the officer's name or badge number.

    "We've found that when you do ask, that only infuriates the officers and makes things worse," said Cohen. "Things can get quickly out of control if [officers] feel like they're not in control or if you're asking too many questions."

    Police released statistics earlier this year showing the amount of stops conducted by police increased five-fold in from 2001 to 2006. The police patted down someone on the streets of the city half a million times last year. Some experts credit the practice for the drastic reduction of crime in the city. Many community activists and civil liberties advocates, though, claim stop and frisk is an example of racial profiling, since the vast majority of stops are black or Latino.

    The stop and frisk debate was fueled earlier this year when the New York Civil Liberties Union learned that the Police Department was compiling a vast database of all the individuals who had been stopped and that more than 86 percent were black or Hispanic in 2006. The debate now not only concerns the stops themselves but the records of those stops and what information on the police department should have to provide to the public.

    That has shoved the practice back in the city's center stage, resulted in a Freedom of Information Law Request by the civil liberties union and an independent analysis of the data due out any day.

    Getting the Data

    The department is expected to hand over its stop and frisk data to the City Council every quarter. It released data in 2002 and not again until 2006. The huge increase over that period fueled suspicions of the practice and concerns from City Council and civil libertarians about what information was not being made available.

    The City Council stepped up its demands for access to the department's electronic database. The civil liberties union has followed the council's lead by filing the Freedom of Information Law request. That request is still pending.

    Stop and frisk data from 2003 through 2006 is currently being processed by a private vendor, a spokesman for the Police Department said, because its collection predated the electronic system currently used. The police department also contends the data correlates with descriptions of race given by victims and witnesses.

    The department did not give even all of its 2006 data to council. While it hand delivered raw data to the City Council, it did not provide its electronic database, which, according to the civil liberties union, details reasons for each individual stop. That database, advocates said, could also provide the council with greater ability to conduct oversight.

    Related Articles

    Policing the Police
    The number of complaints against the police is on the rise, and critics charge the department and the civilian agency that monitors it do not do enough to stop the abuses.

    The Failure of Civilian Oversight
    The former executive director of the Civilian Complaint Review Board argues that the agency is not doing the job New Yorkers need it to do.

    Up Against the Constitution
    The police department considers its handling of protests at the 2004 Republican convention a major success, but the courts do not seem to agree.

    A Police Shortage
    A police presence prevents crime, writes the head of the City Council Public Safety Committee, so we cannot afford to loose officers.

    The City Council stepped up its demands for access to the department's electronic database. The civil liberties union has followed the council's lead by filing the Freedom of Information Law request. That request is still pending.

    Councilmember Peter Vallone, who is also chair of the council's public safety committee, said, "The best way to prove or dispel these concerns is to operate in the daylight." The negotiations over the database, Vallone said, are "at the highest level" - between the City Council Speaker Christine Quinn and Mayor Michael Bloomberg. (For an artilce by Vallone on the police, see "A Dwindling Police Presence.")

    While the NYPD has been reticent to release the database to the City Council, the department has turned it over to the RAND Corporation for an independent analysis into whether the department was using race as a factor in stop and frisk instances.

    Announcing the partnership in February, Police Commissioner Raymond Kelly said in a press release, "While the police department's analysis of the data in general terms showed that stops were consistent with concentrations of crime and of victim descriptions of suspects, we've asked make an in-depth inquiry to determine whether there are any flaws that we may need to address."

    The onset of an independent investigation into the data has not stopped calls for further transparency. "The private company asked to do a study of these statistics is using the raw data that the City Council doesn't have," Vallone said. "Clearly without access to the same information, we won't be able to verify their conclusions or in fact do as in-depth a study."

    Chris Dunn, legislative director for the New York Civil Liberties Union said an independent analysis was important to police accountability.

    "There's been a lot of evidence to suggest that race is playing a big role in people getting stopped in stop and frisks," he said. "That's an important policy issue, but there needs to be a more serious analysis of the data to confirm that."

    Dunn fears that RAND's exclusive access to the data will result in a one-sided analysis. He said by not widely releasing the stop and frisk records, it appears that the department has something to hide. "I don't think there's anything complicated about it," Dunn said. "[The NYPD doesn't] want anyone else to see [the data]. And I don't think they want people to see it because there's trouble in the database for them."

    In an emailed response, Deputy Police Commissioner for Public Information Paul Browne said the department is not required nor will it give the council access to the database because it identifies individuals.

    Figures released in August for the second quarter of 2007 revealed the amount of stops decreased by more than 12 percent compared to the same quarter in 2006. But the new numbers have not stalled the call for increased transparency.

    Effect on Communities

    The fatal shooting by police of Amadou Diallo in 1999 produced greater calls for police oversight. As part of that, the City Council was charged with receiving and reviewing the stop and frisk data. Since then, allegations of stop and frisk abuse have not ceased and minority communities, some leaders said, have been especially hard hit.

    For minority communities, Cohen of the NAACP said, the policy goes beyond crime control. Stop and frisks have a negative impact on communities, he added, by putting individuals through humiliating interrogations and pat downs. And, he said, racial profiling is rife.

    "[The police] might get a call on their radio about a suspect and they might start stopping an 'African American male,'" Cohen said. "That's what they're looking for: an 'African American male.' They forget about tall, short, heavy, stocky, brown hair, red hair, braids."

    In addition to the number of minorities that have been stopped, the 2006 data also revealed that less than 10 percent of stop and frisks result in arrests or summonses, according to the civil liberties union.

    "The problem with stop-and-frisk is that even if you've got good police, the hit rate is still pretty low," said Peter Moskos, a professor at the John Jay College of Criminal Justice and former police officer in Baltimore.

    Moskos, who stopped and frisked people during his time as a police officer, has conflicting feeling about it. While he said the practice helps get guns off of New York City streets, he also finds it troubling. "It's not pleasant," Moskos said. "Police approach the situation assuming that you're armed until it's proven otherwise. It's a hands on, intrusive, inherently bad experience that creates a lot of the resentment that's out there."

    He said much could be done to improve stop-and-frisk encounters. "It sounds mundane, but police could be more courteous and less rude when they do it," Moskos said. "It's never pleasant to be frisked. But it can be made a little less unpleasant."

    But others seek greater changes. Cohen and the NAACP want to stricter accountability and increased diversity training for police. Dunn said the numbers of stop and frisk encounters needs to diminish. The police, he said, need "to find a way to train police officers to stop people on the basis of suspicious activities instead of things like race."


    Print Friendly and PDF

    Editor's Choice

    Gotham Gazette: Max Politics Podcast: Bill De Blasio's Legacy and Eric Adams' Agenda
    Max Politics Podcast: Bill De Blasio's Legacy and Eric Adams' Agenda
    Gotham Gazette: Emma Wolfe Reflects on the De Blasio Years
    Emma Wolfe Reflects on the De Blasio Years
    Gotham Gazette: City Continues Expansion of Online Access to Public Benefits
    City Continues Expansion of Online Access to Public Benefits
    Gotham Gazette: Max Politics Podcast Max Politics Podcast