The Legal Aid Society Sues To Stop The NYPD From Continuing To Make Unlawful Marijuana Arrests; Legal Aid's Chief Attorney Had Supported the Governor's Marijuana Reform Proposal; Warns of Collateral Consequences of Arrests
FRIDAY, JUNE 22, 2012

The Legal Aid Society and the law firm of Davis Polk & Wardwell LLP filed a lawsuit in State Supreme Court today to prohibit the NYPD from continuing to make unlawful marijuana arrests. State law requires that people who possess small amounts of marijuana that is not open to public view should be charged only with a violation and be given a ticket to appear in court at a later date.

In thousands of cases every year, however, NYPD officers, having found a small quantity of marijuana in a pocket or bag, charge people with a misdemeanor and subject them to the full arrest process, which often takes 24 hours or more and leaves them with a criminal record. "This practice of the New York Police Department makes a mockery of the law and causes very serious collateral consequences for large numbers of people," Steven Banks, Attorney-in-Chief of The Legal Aid Society, told the New York City Council on June 12 when he testified in support of Governor Cuomo's proposal to decriminalize the open possession of a small quantity of marijuana in order to stop the continuing unlawful arrests.

In September 2011, Police Commissioner Kelly issued an order that prohibited misdemeanor charges and arrests in cases where marijuana is brought into public view as a result of police action. In spite of this order, the practice of filing misdemeanor charges and ordering the arrest for non-public-view cases has continued to this day. Arrests for possession of small amounts of marijuana now represent roughly one-seventh of all offenses arraigned in the New York City Criminal Court.

The plaintiffs are five New Yorkers who come from the Bronx, Brooklyn, Queens, and Staten Island. Their arrests occurred in April and May of this year. Each plaintiff was charged with the misdemeanor-level possession of marijuana in public view despite the fact that the marijuana was produced only as a result of a police order or action. In one case the person was charged with public view possession and arrested even though the complaint written by the arresting officer said that the marijuana was recovered from the defendant’s person.

The State court action seeks a declaration that these police practices are illegal and an order that directs the NYPD to take the necessary steps to ensure that its officers comply with the law. Along with Mr. Banks, William Gibney and Tom O'Brien are the Legal Aid attorneys on the case.

Statistics show that more than 85 percent of the people arrested during stop and frisk searches for possession of small quantities of marijuana are Black or Hispanic. On June 5, Banks told The New York Times that the Society was prepared to sue the City unless the NYPD stopped making the unlawful arrests.

David Kapner, a Supervising Attorney in Legal Aid's Manhattan Criminal Defense Office, also told the New York Daily News on June 9: “If you are in a job for which you have been fingerprinted, your workplace will be notified of the arrest, and people have been fired. If you work for the city, you may be suspended for a year; if you work for the Board of Education even as a lunchroom attendant you will definitely be suspended for a year. I’ve had clients who’ve become homeless, because their mothers are afraid to lose their public housing due to the arrest,” he continued. “Taxi and livery drivers’ hack licenses get suspended while their case is pending. People can’t join the military, or become citizens.”

The New York Times
June 5, 2012
Altering a Law the Police Use Prolifically
By Jim Dwyer

On Tuesday afternoon, a 51-year-old black man was led into Manhattan Criminal Court to be arraigned on a charge that he broke a law that Mayor Michael R. Bloomberg has enforced with more vigor than any other: the possession of less than an ounce of pot.

The day before, the police said, the man was seen walking along Second Avenue in East Harlem “publicly displaying” his little bag of weed.

The man, whose identity is of no public interest, may be at the trailing edge of an era in which blacks and Latinos get in more trouble for having marijuana than do whites who have just as much.

This week, the governor and the speaker of the Assembly said they supported a change in the law so that publicly possessing small quantities of pot would no longer be a misdemeanor. “This is primarily a young-person problem, about 60 percent,” Gov. Andrew M. Cuomo said on Monday. “And primarily, overwhelmingly, a problem for the black and brown community, 94 percent of the convictions.”

In a startling turnaround, both Mayor Bloomberg and Police Commissioner Raymond W. Kelly said that they supported the change in the law.

Under Mr. Bloomberg and Commissioner Kelly, no other prohibition has been so vigorously enforced. About 400,000 people have been arrested over the last 10 years for breaking New York State Penal Law 221.10, which makes it a misdemeanor to openly possess or burn less than an ounce of pot.

For the last four years, I have asked the mayor’s office and the police commissioner why there has been an explosion of marijuana arrests among black and Latinos. Officials in those offices consistently, and ardently, defended the arrests as vital to public safety.

In 2008, a police spokesman, Paul J. Browne, said there was no reliable basis to claim that whites used pot as much as blacks and Latinos, and accused the New York Civil Liberties Union, which had issued a report on the subject, of smearing the department while acting as a front for a marijuana-legalization group. Taking care of little crimes, including pot possession, “helped drive crime down,” Mr. Browne said.

In 2009, John Feinblatt, a mayoral aide, said, “This continued focus on low-level offending has been part of the city’s effective crime-reduction strategy, which has resulted in a 35 percent decrease in crime since 2001.”

Last year, another aide, Frank Barry, said, “Marijuana arrests can be an effective tool for suppressing the expansion of street-level drug markets and the corresponding violence.”

What changed?

At the state level, Mr. Cuomo won passage of legislation to expand collection of DNA to include people charged with misdemeanors. He agreed, in exchange for the support of Democrats in the Assembly, to exempt people facing a first arrest in minor marijuana cases.

He also privately promised to fix a few lines in the laws governing marijuana possession, the changes he proposed this week. Currently, having a small quantity of pot is not a crime if it is not visible; it is merely a violation, like a traffic summons. However, if the pot is openly displayed, it is a misdemeanor. So, people ordered to turn out their pockets by a police officer are displaying marijuana, a misdemeanor.

Those misdemeanor charges, Mr. Cuomo said, were an “aggravated complication” of searches conducted in New York City. Last year, about 700,000 people were stopped, questioned, and in many cases, searched; most of those people were black and Latino.

Mr. Bloomberg and Mr. Kelly are under pressure over that practice, noted Donna Lieberman, the executive director of the New York Civil Liberties Union. A federal judge ruled last month that thousands of searches did not appear to be constitutional. The Legal Aid Society plans to sue the city over the marijuana arrests, said Steven Banks, the attorney in chief for the society, which provides many of the defense lawyers in New York’s criminal courts. The main police union, the Patrolmen’s Benevolent Association, has said there are quotas for the number of stops, although the Police Department calls them performance goals.

Hakeem Jeffries, an assemblyman from Brooklyn, had urged the reforms proposed this week, which need the support of the State Senate to become law. “The possession of small quantities of marijuana is either a crime, or it’s not,” Mr. Jeffries said. “It cannot be criminal behavior for one group of people and socially acceptable behavior for another group of people, where the dividing line is race.”

New York
By Joanna Molloy
June 9, 2012
Sen. Dean Skelos has smoke in his eyes
L.I. pol can’t see benefit in easing pot possession law

State Sen. Dean Skelos must have buds in his ears, because he’s not listening to logic when it comes to pot.

The Republican boss from Long Island reacted to Gov. Cuomo’s proposal to decriminalize possession of small amounts of marijuana by saying it would be wrong to allow people to “walk around with 10 joints in each hand and it only be a violation.”

What is this, “Reefer Madness?”

Even Mayor Bloomberg and Police Commissioner Raymond Kelly support the governor and back Brooklyn Assemblyman Hakeem Jeffries’ and Sen. Mark Grisanti’s bills to make it a $100 violation rather than a criminal misdemeanor if you possess 25 grams — about three quarters of an ounce — or less in public. Democrats in both houses say they’d pass it by June 21, when the Legislature breaks.

That would be fine with Jason, a company vice president. He was arrested for possession two weeks ago.

“I was coming home from work and a cop stopped me,” said Jason, who asked that his real name not be published, in Manhattan Criminal Court Thursday.

“He emptied my pockets and turned up a bag of pot. It was this big,” he said, holding his thumb and finger an inch apart.

But bingo, it was exposed to public view, no matter that it was by the police officer, and Jason was arrested.

He got off relatively easy: The Institute for Juvenile Justice Reform and Alternatives is trying to help a young woman named Colyssa whose daughter was taken away from her after a pot arrest — and she doesn’t even smoke. “She was caught in a snare when police blocked off and arrested a whole street,” said JJRA’s Kyung Ji Kate Rhee.

There are other calamities, said David Kapner of the Legal Aid Society, which defends about 30,000 of the 50,000 people busted for featherweight pot possession a year.

“If you are in a job for which you have been fingerprinted, your workplace will be notified of the arrest, and people have been fired,” Kapner said. “If you work for the city, you may be suspended for a year; if you work for the Board of Education even as a lunchroom attendant you will definitely be suspended for a year.

“I’ve had clients who’ve become homeless, because their mothers are afraid to lose their public housing due to the arrest,” he continued. “Taxi and livery drivers’ hack licenses get suspended while their case is pending. People can’t join the military, or become citizens.”

And while it is mostly teens and twenty-somethings who are being arrested, it’s not white kids, who statistically smoke just as much pot. Queens College Prof. Harry Levine found that 87% of the stop-and-frisk-for-pot arrestees are black or Hispanic in what he called “a marijuana arrest crusade. There’s no precedent for it anywhere else in the country.”

Gov. Cuomo’s proposal is one step in a journey to end the hypocrisy in a country where 100 million Americans, including Presidents, have tried pot, and 25 million Americans say they have smoked it this year. Maybe Dean Skelos should read Harvard Economics Prof. Jeffrey Miron’s study, which estimates that legalization of marijuana could bring in $20 billion in tax revenues and law-enforcement cost savings.

“I think it should be legalized, like in Amsterdam,” said Jason. “It’s a calming drug. You don’t see cannibals running around in Amsterdam.”

Just not on cannabis.