NYPD Has Discretion To Issue Desk Appearance Tickets When Offense Is Low Level, Says Legal Aid Chief Attorney
FRIDAY, FEBRUARY 14, 2014

Responding to questions about Mayor de Blasio's inquiry to a New York Police Department official regarding the status of Bishop Orlando Findlayter who was arrested after he was pulled over for a routine traffic stop, Steven Banks, the Attorney-in-Chief of The Legal Aid Society, told the Wall Street Journal that "[i]t's been our view that the police department has discretion to issue desk appearance tickets when the underlying offense is low level conduct."




The Wall Street Journal
De Blasio Defends Call on Behalf of Ally
Bill de Blasio Said He Would Make Similar Calls on a 'Case-by-Case' Basis
By Pervaiz Shallwani and Michael Howard Saul
Feb. 14, 2014

Several law-enforcement experts disagreed with Mayor Bill de Blasio and a New York Police Department precinct commander's interpretation of written police rules that they said allowed a political ally of the mayor's to avoid a night in jail.

According to the NYPD patrol guide, after many arrests precinct officials can either hold the person in jail until their court hearing or release the person under an agreement they will appear for the hearing. The latter is known as a desk appearance ticket.

But officials aren't allowed to release a person if he or she has an open warrant for their arrest for a past offense—the only exceptions are when the person is very old or in poor health, according to the patrol guide.

Bishop Orlando Findlayter, a member of the Mayor Bill de Blasio's inaugural committee, was arrested Monday evening after he was pulled over for a routine traffic stop because he had a suspended license stemming from outstanding warrants for failing to appear in court related to an Oct. 16 arrest during a Manhattan protest.

Mr. de Blasio called a top NYPD official, Deputy Chief Kim Royster, about the arrest.

She called 67th precinct commanding officer, Deputy Inspector Kenneth Lehr, who knew the bishop personally and was already on his way to the precinct to allow him to be released instead of spending the night in jail.

Deputy Inspector Lehr used a discretion that NYPD officials said all commanders have to release someone on the promise that he or she will settle outstanding warrants. John Jay College of Criminal Justice professor Eugene O'Donnell, a former NYPD officer and prosecutor who is an expert on police procedure, said he reread the policies following the incident and doesn't see an exception that warrants the bishop's release.

"It's been done forever is not a patrol guide policy," Mr. O'Donnell said.

Mr. de Blasio, in his first public comments on the incident Thursday, said the police handled the matter "100%" according to protocol.

"The precinct commander made a decision and he made a decision based on his view of what was the right thing to do," Mr. de Blasio said at an unrelated news conference. When asked later if Mr. de Blasio read or was familiar with the rules in the patrol guide, the mayor's spokesman referred to his comments earlier in the day.

Bishop Findlayter didn't return messages seeking comment.

John Eterno, associate dean and professor of criminal justice at Molloy College on Long Island, said the patrol guide is fairly clear and exceptions are "very rare"—like if the person is injured or hospitalized.

"This is definitely something out of the ordinary," said the retired NYPD captain. "Somebody on a warrant would definitely be going through the system. There is some discretion on this, but it's pretty clear that if someone is out on a warrant you should not be giving them a desk appearance ticket."

Bishop Findlayter was released "probably because of his stature in the community. I don't know what they were thinking honestly," he said.

Longtime criminal defense attorneys argued that most people in similar circumstances wouldn't be able to contact a precinct commander in the evening to avoid spending a night in jail.

"In my career, I do not recall when I had a client arrested on a warrant who did not have to spend time in jail before being brought to court," said Lawrence Goldman, a criminal defense attorney and a former president of the National Association of Criminal Defense Lawyers.

An NYPD spokesman said that a commander's discretion is often used in issuing desk appearance tickets.

"There are a lot of things in the rule book," said author and police historian Thomas Reppetto, who was held top positions while working at the Chicago Police Department. He said he has "released people in the same circumstance, and I released people with far worse things than that."

"I would have done exactly the same thing because we live in the real world," he added.

And Roy Richter, the president of the NYPD Captains Endowment Association, the union that represents Deputy Inspector Lehr, said station commanders have long had the discretion to release a person, even if they are wanted on a warrant. He said Deputy Inspector Kenneth Lehr made "a good decision."

"It's always been allowed," Mr. Richter said, especially if a person is in crutches or is a confidential informant in the community. "You can use common sense standards to make an exception," he said. "Anybody who makes this decision, and this guy goes on the lam, he is going to have to answer."

In many police departments around the country, such discretion has been used for decades, said John Jay Professor Maria Haberfeld, who has studied police ethics for more than 20 years.

Still, she said, it was a unique situation that the bishop was able to have a commanding officer arrive at a station house in the middle of the night.

"We have to be realistic that anybody who makes a call and is in a position of power, you are going to attend to this in a more serious and intent way," she said.

Brooklyn defense attorney and former borough prosecutor Michael Farkas said the decision was "not without precedent, but it's not usual."

"I guess if you know the captain of the precinct or the mayor, things might be different," he said.

And Steve Banks, attorney-in-chief of the Legal Aid Society, said that while the patrol guide is strict, "It's been our view that the police department has discretion to issue desk appearance tickets when the underlying offense is a low level conduct."

On Thursday, Mr. de Blasio defended his phone call as "appropriate" and said the commander made "a professional decision."

When asked if he would make a call like this again, Mr. de Blasio said, "It's a case by case-by-case basis."

"This is an unusual situation where a very prominent member of the clergy obviously was experiencing a very unusual situation," Mr. de Blasio said. "So, I thought it was appropriate to make an inquiry and I got a response. And that's the end of the story."