Overpolicing Detracts From Focusing on Serious Problems, Says Legal Aid's Chief Attorney
FRIDAY, JULY 13, 2012

Steven Banks, Attorney-in-Chief of The Legal Aid Society, called a case in which the open container law should not have been extended "overpolicing." A law student and friends were having a few beers the evening of July 4 on the front stoop of a friend's brownstone in Brooklyn. They were on the other side of the wrought-iron gate in front of the brownstone. Yet, an unmarked police car stopped and gave them all summonses for drinking in public.

In this case, Banks said the open container law should not have extended to the stoop because it was private property. He told the New York Times that "this is representative of the kind of overpolicing that detracts from focusing on real serious problems."




The New York Times
City Room
July 10, 2012, 4:04 pm
A Legal Fight Over Sipping Beer on a Stoop
By Vivian Yee

As they often do, Andrew Rausa and a few friends spent the evening of July 4 lounging barefoot on the front stoop of a friend's brownstone home in Brooklyn and enjoying a few beers. Escaping the indoor heat, Mr. Rausa and two friends sipped cans of Brooklyn Summer Ale; his girlfriend held an unopened bottle of a blueberry ale.

When an unmarked police car pulled up and two officers got out, Mr. Rausa and his friends worried that the charcoal grill that was set up nearby had gotten them in trouble.

"You're all getting summonses for drinking in public," Mr. Rausa recalls one of the officers announcing from the other side of the wrought-iron gate in front of the brownstone, on Douglass Street in Boerum Hill.

"We were all kind of stunned for a second," Mr. Rausa said in an interview on Tuesday. "It happened over the gate. It was a very tangible physical divide - when they said the words 'public property,' it just didn't make any sense."

Besides, Mr. Rausa said, a fifth person on the stoop who received a summons wasn't drinking alcohol at all. She was holding a red plastic cup filled with soda.

Meanwhile, Mr. Rausa, who will enter his third year at Brooklyn Law School this fall, had pulled out his iPhone to study the New York administrative code, which defines a public place as one "to which the public or a substantial group of persons has access, including, but not limited to, "a park, sidewalk or beach." Exceptions include drinking at a block party or "similar function for which a permit has been obtained" or places with liquor licenses.

Holding his phone, Mr. Rausa approached the officer, who had returned to his car, and said that because he was sitting on a private stoop behind a gate, he was not breaking the law.

"I don't care what the law says, you're getting a summons," the officer said before rolling up his window, according to Mr. Rausa.

At first, the group planned to simply pay the $25 fines. But they decided otherwise when they realized that the summonses, though relatively low-level violations, would become blemishes on their personal records.

Mr. Rausa began doing research and found an article from The New York Times about Kimber VanRy, a Brooklyn resident who had been issued a summons for drinking on his stoop in 2008. The officer who issued Mr. VanRy the summons said he would not have handed out the pink slip if Mr. VanRy had been behind a gate. So Mr. Rausa suggested another option to his friends: Plead not guilty and contest the summonses on the grounds that the drinking was done on private property. Mr. Rausa cautioned that they might still be better off pleading guilty. "We had an 'I am Spartacus' moment," he recalled. "They were like: 'No way, we're going to fight this. This is injustice.'"

With photos that he snapped of the stoop and a recording he made of part of his conversation with the officer, Mr. Rausa plans to represent himself in court. No court date has been set.

A spokesman for the Police Department said he could not comment.

"My issue," Mr. Rausa said, "is not some yuppie, I-think-I'm-above-the-law issue. It's the fact that I brought to the attention of the police officer that he was not in the right and he was not receptive at all."

The law may have seemed unambiguous to Mr. Rausa, but Mr. VanRy, who has become something of an expert on public drinking incidents since getting his summons in 2008, says it is not so clear-cut.

Mr. VanRy, who once gave a talk on the subject in Williamsburg, has heard from people who received summonses after the police saw them drinking through open doorways, behind gates, on roofs and even in the hallways of their apartment buildings.

"There's so much interpretation left up to the individual officer," he said. "I tell people, honestly, I think you're going to lose because it's written so broadly."

But Steven Banks, the chief lawyer for the Legal Aid Society, said that in Mr. Rausa's case the open-container law should not have extended to the stoop because it was private property. "This is representative of the kind of overpolicing that detracts from focusing on real serious problems," Mr. Banks said.

No judge has yet made the gray area clearer: Mr. VanRy's case and that of another stoop drinker he knows were both thrown out on technicalities, making Mr. Rausa's case another chance to test the limits of the open-container law.

Since contesting his summons, Mr. VanRy has moved from Prospect Heights to a brownstone in Windsor Terrace, but he hasn't stopped enjoying his beers outside - in parks, on beaches, and, yes, outside his home.

But not necessarily on the stoop.

"I have a private roof now,'' Mr. VanRy said, "so I do most of my public drinking on my own roof."