Legal Aid Chief Attorney Praises Bronx DA's New Policy Against Unlawful Stop and Frisk Arrests; New York Times Editorial Urges Other District Attorneys to Adopt Similar Policies

The New York Times reported yesterday that Robert Johnson, the Bronx District Attorney, issued a new policy during the summer that the office would not prosecute people who were stopped in public housing projects and private buildings in the clean halls program and then arrested for trespass unless the arresting officer was interviewed to ensure that the arrest was warranted. The new policy received wide-spread media attention and praise with the New York Times in an editorial today urging other District Attorneys to follow Johnson's lead.

Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told The New York Times that the new requirement put “a procedure in place to verify that the stop and subsequent arrest were proper.” Banks said that "This is exactly what prosecutors should be doing before proceeding with criminal prosecutions — namely making sure that formulaic statements by police officers actually have some basis to support the arrest and prosecution."

The Legal Aid Society has been in the forefront of legal challenges to the New York Police Department's unlawful arrests based on the NYPD's stop and frisk policy, and its practice of arresting tenants and their guests unlawfully in New York City Housing Projects.

The New York Times
September 26, 2012
Prosecutor Deals Blow to Stop-and-Frisk Tactic
By Joseph Goldstein

In a significant blow to New York City’s use of stop-and-frisk tactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer is interviewed to ensure that the arrest was warranted.

Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.

By essentially accusing the police of wrongfully arresting people, the stance taken by Bronx prosecutors is the first known instance in which a district attorney has questioned any segment of arrests resulting from stop-and-frisk tactics.

Bronx prosecutors are now requiring that they interview the arresting officer in the “hopes of eliminating tenants and invited guest from being prosecuted unlawfully,” according to a letter to the Police Department from Jeannette Rucker, a bureau chief in the district attorney’s office.

Trespass arrests in the Bronx have fallen 38.2 percent, year to date, compared with 2011.

In August, arrests for all second- and third-degree misdemeanor trespassing cases in the Bronx fell by nearly 25 percent from August 2011. In Manhattan and Brooklyn, trespass arrests were down less than 5 percent in August compared with August 2011, and in Queens trespass arrests actually rose considerably.

Steven Banks, the chief lawyer of the Legal Aid Society in New York, said that the new requirement put “a procedure in place to verify that the stop and subsequent arrest were proper.”

“This is exactly what prosecutors should be doing before proceeding with criminal prosecutions — namely making sure that formulaic statements by police officers actually have some basis to support the arrest and prosecution,” Mr. Banks said.

The city’s reliance on stop-and-frisk has come under intense scrutiny and legal challenges, as critics charge that the police disproportionately target minorities and harass innocent people. That sentiment is especially prevalent at housing projects, which account for about 10 percent to 15 percent of all police stops; the trespassing arrests occur when officers are unconvinced that a person lives at the housing project or is a guest.

Police officers typically fill out a sworn statement and some check-the-box-type paperwork on such low-level arrests.

Steven Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said that the new policy of requiring interviews of officers “was discussed with the offices of the other district attorneys and the N.Y.P.D.,” but he would not comment further because of continuing litigation.

The new policy in the Bronx led to an Internal Affairs Bureau inquiry into the allegation of improper arrests, according to a letter sent by Police Commissioner Raymond W. Kelly to Mr. Johnson on Sept. 6. Mr. Kelly said that no misconduct had been uncovered, and that it appeared that Ms. Rucker’s “estimation of the issue was in error and that she overstated her perception of discrepancies regarding criminal trespass arrests in the Bronx.”

Mr. Kelly also suggested that Ms. Rucker was unable to provide specifics of the cases referred to in her letter, and that she could cite only one example in which she alleged an arrest was dismissed because of a police error. Nonetheless, he added that the legal issues surrounding trespassing arrests would be addressed at training sessions at the precinct and borough levels.

Mr. Johnson has adopted some independent positions before. In 2006, he became the first prosecutor to use the state’s 2001 antiterrorism statute, doing so against a street gang member. He also issued a statement in 1995 saying he did not intend to pursue execution in first-degree murder cases.

The letter from Ms. Rucker, who is the chief of arraignments for the Bronx district attorney, was filed in federal court this week in a lawsuit challenging trespass arrests in New York. The lawsuit was filed by Legal Aid and the N.A.A.C.P. Legal Defense Fund.

Prosecutors in the Bronx have been “experiencing a great deal of problems with trespassing” arrests, Ms. Rucker wrote in the July 18 letter. She wrote that she had received numerous complaints from defense lawyers who claimed that many of the people arrested were not trespassers. Deciding to investigate further, she found that “in many (but not all) of the cases the defendants arrested were either legitimate tenants or invited guests,” she wrote.

In some cases, Ms. Rucker claimed, the police arrested people even when there was persuasive evidence that they were not trespassing, citing “several instances where defendants who were guests, had the person whom they were visiting verify this fact to the arresting officer, yet the defendant was arrested anyway.” In those cases, the deposition from the arresting officer “indicated the defendant did not know the name of any tenant or the apartment number.”

From 2009 to 2011, the police arrested more than 16,000 people on trespass charges in public housing, according to a report filed as part of the federal litigation over the arrests.

At the Mott Haven Houses in the Bronx on Tuesday, several tenants and neighbors said they had been wrongly arrested for trespassing.

Darren Jones, 28, said he was arrested in the elevator of his building in the development about two months ago because he did not have identification.

Quanell Carwell, 27, a hairstylist who lives at the Mott Haven complex, said she was in the courtyard common area three weeks ago when she was arrested on a trespassing charge. She was given a desk appearance ticket, but said she was going to plead not guilty because she did not do anything wrong.

In addition to stops in public housing, Ms. Rucker’s letter addresses stops in private buildings registered with the Clean Halls program, in which landlords of some 16,000 buildings have given the police permission to enter and patrol the hallways and stairwells. The Legal Aid Society and civil rights groups, including the New York Civil Liberties Union, have sued the city over trespass arrests in both public housing and buildings registered with the Clean Halls program.

According to another memorandum filed in the lawsuit, the Police Department had voiced its own concern about the legality of police stops at housing projects. In 2010, Katherine Lemire, the counsel to Mr. Kelly, told the Civilian Complaint Review Board that she had “found many instances in which officers were incorrectly stating the required standard for a question or stop” at public housing, according to a memo prepared by Meera Joshi, then a deputy executive director at the board.

Paul J. Browne, the chief police spokesman, said that Ms. Lemire only learned of “several” instances — not “many” — in which officers were mistaken about the legal standard for stopping people.

Ms. Joshi wrote that Ms. Lemire pointed out that some officers were under the mistaken impression that they “were entitled to stop and question anyone inside” public housing.

In fact, legal experts say, the police require reasonable suspicion that a person is about to or has just committed a penal code violation before stopping that person.

After Ms. Lemire’s findings, Commissioner Kelly issued a directive reinforcing the legal standards and ordered intensive training for all housing officers and certain patrol officers. In all, some 3,000 officers went through a three-week training program, conducted by the department’s academy chief and overseen by the commanding officer of the Legal Bureau, according to Ms. Joshi’s Sept. 28, 2010, memo.

Even so, problems with trespassing cases seemed to persist.

“Unfortunately, as this most recent letter shows, these stops and arrests continue, and more drastic measures are needed,” Christopher Dunn, the associate legal director of the New York Civil Liberties Union, said.

Mr. Browne said that the department was committed to lawfully conducting “stops of trespassers in New York City public housing as a means of fighting crime and offering some semblance of safety that residents of doormen buildings often take for granted.”

He said that even though the department’s inquiry into the allegations by the Bronx district attorney’s office had not found any police misconduct, “the N.Y.P.D. engaged in retraining on the issues,” adding that Ms. Rucker has asked that her own staff receive the same training.

In Brooklyn, prosecutors shared their own concerns about potentially problematic trespass cases with prosecutors around the city and the Police Department’s legal bureau, according to Jerry Schmetterer, a spokesman for the borough’s district attorney. The topic surfaced about two years ago, he said.

“We found that there were times when the basis for the arrests might not have been the criteria we were looking for, and we addressed that through training,” Mr. Schmetterer said.

Randy Leonard and Wendy Ruderman contributed reporting.

The New York Times
September 27, 2012
Losing Faith in Stop-and-Frisk

The Bronx district attorney’s office showed sound judgment when it told the New York Police Department that it would no longer prosecute people stopped for trespassing, unless the officers could demonstrate that the arrests were warranted.

The trespassing arrests are a variant of the broad stop-and-frisk program that has been challenged by civil rights lawsuits filed over the last several years. Last year, New Yorkers, nearly all of whom were innocent of any crime, were stopped by the police nearly 700,000 times.

Documents filed this week in Ligon v. City of New York — a lawsuit brought on behalf of people who say they were illegally stopped, ticketed or arrested for trespassing, some in their own buildings — shows that the Bronx district attorney’s office had serious concerns about such arrests as far back as three years ago. These arrests were made in public housing developments or under the Clean Halls program, which allows police to patrol the hallways of private buildings to prevent crime.

As The Times’s Joseph Goldstein reported Wednesday, the Bronx district attorney’s office quietly notified the Police Department in July that it knew of people who had been arrested on charges of trespassing, though they were identified as guests by residents in the buildings. As a result, the office said, it would no longer automatically prosecute people charged with trespassing in public housing or Clean Halls buildings.

This was apparently not the first time that the Bronx district attorney had complained about this problem. Lawyers for the Ligon plaintiffs asserted that the prosecutors had told the Police Department in 2009 that some trespassing arrests were not legally justified. By 2011, the prosecutor had become so concerned about the lawfulness of stops made outside of Clean Halls buildings that it “started routinely to decline to prosecute” outdoor arrests, according to court documents.

The Police Department says that it found no wrongdoing by police officers after conducting a thorough investigation. The department asserts that the district attorney did not provide specific examples of bad arrests and notes that it retrained officers after receiving complaints.

Even so, descriptions of police conduct in this case are disturbingly consistent with those cited by civil rights attorneys in Floyd v. City of New York, a federal class-action suit that challenges the legality of the Police Department’s stop-and-frisk program. In the Ligon and Floyd suits, analyses of police records show that the cops routinely stopped people for vague “furtive movements” and that stops often fail to meet legal standards, which require “reasonable suspicion” that a crime has been committed or is about to take place.

The Police Department is clearly fuming about the Bronx district attorney’s stance. But that office should be applauded for sparing people unfair or unlawful prosecution. Other district attorneys in the city should follow that lead.