The New York Times, The Wall Street Journal, Reuters, and New York 1 Report on Legal Aid's Litigation to Stop Unlawful Marijuana Arrests; Former Mayor Koch Praises Legal Aid's Lawsuit
WEDNESDAY, JUNE 27, 2012

Media reports in recent days have focused on a lawsuit brought by The Legal Aid Society and Davis Polk & Wardwell LLP to stop unlawful marijuana arrests.  The lawsuit was filed on June 22, 2012 in the Supreme Court in New York County.

Last September, New York City Police Commissioner Raymond W. Kelly issued a memorandum directing police officers not to make arrests for possession of small quantities of marijuana discovered when individuals are ordered to empty their pockets in stop, question and frisk encounters.  But police officers have continued to charge New Yorkers with misdemeanor crimes — rather than issuing them tickets for violations — for possession of small amounts of marijuana despite the Commissioner's directive and the requirements of State Law.  Steven Banks, The Legal Aid Society's Attorney-in-Chief, told The New York Times that “It’s certainly a sad commentary that the commissioner can issue a directive that reads well on paper but on the street corners of the city doesn’t exist.” 

 

In his commentary earlier this week, former Mayor Edward Koch congratulated The Legal Aid Society's efforts led by Mr. Banks "for bringing a lawsuit to end the arrests and punish the individual cops who have failed and are failing to carry out the order of Police Commissioner Ray Kelly. Those young men and women who have received misdemeanor sentences unfairly when violations would have been appropriate should be given the opportunity to have their records cleared of the erroneous charge."

 

 

In addition to The New York Times and the Koch commentary, other articles appeared in the Wall Street Journal and Reuters and NY1 featured an interview with Mr. Banks by Dean Meminger.

 

 

 

 

The New York Times

Lawsuit Accuses Police of Ignoring Directive on Marijuana Arrests

June 23, 2012

By Wendy Ruderman and Joseph Goldstein

 

Nine months ago, Police Commissioner Raymond W. Kelly issued a memorandum directing police officers not to make arrests for possession of small quantities of marijuana discovered when suspects are ordered to empty their pockets in stop, question and frisk encounters.

 

But police officers have continued to charge New Yorkers with misdemeanor crimes — rather than issuing them tickets for violations — for possession of small amounts of marijuana despite Mr. Kelly’s directive, according to a lawsuit filed on Friday by the Legal Aid Society.

 

“It’s certainly a sad commentary that the commissioner can issue a directive that reads well on paper but on the street corners of the city doesn’t exist,” said Legal Aid’s chief lawyer, Steven Banks.

 

The 28-page lawsuit, filed in State Supreme Court in Manhattan against the city and the Police Department, seeks a court order declaring the practice illegal under state law and prohibiting officers from making such arrests.

 

The Police Department would not immediately comment on the lawsuit.

Legal Aid lawyers brought the suit on behalf of five New Yorkers who, they say, were victims of “gotcha” police tactics. The five men were all arrested since mid-April, four in Brooklyn and one on Staten Island; they were charged with misdemeanor possession after small amounts of marijuana were found on them during police stops. In each case, the marijuana became visible only after officers searched the men or asked them to empty their pockets, the suit says.

 

Under state law, possession of marijuana is a misdemeanor offense when the drug is being smoked or “open to public view.” Possession of less than 25 grams of marijuana out of public view — for example, inside an individual’s pocket or backpack — is a violation, warranting only a ticket.

 

“These five individuals are New Yorkers who were essentially victimized by unlawful police practices,” Mr. Banks said. “The lawsuit is aimed at stopping a pernicious police practice, which is harming thousands of New Yorkers a year and clogging up the court system with one out of seven criminal cases and diverting resources and attention from more serious criminal matters.”

 

One plaintiff, Juan Gomez-Garcia, said he was waiting for a food order outside a Kennedy Fried Chicken restaurant in the Bronx on May 16 when an officer approached, began to question him and asked if he had any drugs on him. Mr. Gomez-Garcia, 27, said that after he admitted to the officer that he had marijuana in his pocket, the officer reached inside the pocket and removed a plastic bag containing a small amount of the drug.

 

He was arrested and charged with “open to public view” possession for having marijuana “in his right hand.” He spent about 12 hours in a jail cell and was let go after he pleaded guilty to a disorderly conduct violation, according to the lawsuit.

 

In New York City, many of the tens of thousands of misdemeanor marijuana arrests made each year have been a result of stop-and-frisk encounters in which drugs hidden on a person are brought into public view only because of a police officer’s frisk or instructions that a person empty his or her pockets, according to lawyers in the suit.

 

In an effort to end these prosecutions, Gov. Andrew M. Cuomo sought this month to decriminalize small amounts of marijuana in public view. The Legislature did not act on the proposal.

 

Critics of the Police Department’s enforcement policy said that police officers have been willfully misinterpreting the state’s marijuana laws for more than a decade to produce more arrests. Earlier this month, testifying before the City Council, Mr. Banks presented statistics that he said showed that officers had also been ignoring Mr. Kelly’s order, issued in September 2011.

 

In August 2011, 4,189 people were arrested in New York City for misdemeanor marijuana possession, Mr. Banks said. While the arrests dipped below 3,000 in December, the “decline was only temporary,” he said, adding that by March, the number of arrests had risen to 4,186

 

 

 

The Wall Street Journal

Lawsuit Filed Over Arrests For Marijuana

June 23, 2012

By Jennifer Maloney

 

A lawsuit filed Friday by the Legal Aid Society charges that the New York Police Department is routinely ignoring a September directive reminding officers that they may not make arrests on misdemeanor marijuana charges if they have directed suspects to bring into open view the drug.

 

The organization is seeking a court injunction to compel the the department to stop these arrests, arguing that in such cases state law mandates a desk-appearance ticket for a violation that carries a $100 fine.

 

The filing takes aim at one aspect of the department's stop-and-frisk policy, and comes after a failed bid by Gov. Andrew Cuomo to decriminalize the public possession of small amounts of marijuana.

 

"On the streets of New York City, police are engaging in a 'gotcha' practice," said Steven Banks, attorney-in-chief of the Legal Aid Society. "It's particularly pernicious because it can't be undone once it occurs."

 

Kate O'Brien Ahlers, a spokeswoman for the city's law department, declined to comment on the lawsuit beyond saying that the city hadn't yet been formally served and that it would review the complaint thoroughly. The police department did not respond to a request for comment.

 

A desk-appearance ticket is a far lesser penalty than a misdemeanor charge, involving no overnight jail stay, no fingerprinting and no arrest record.

 

When people are arrested on a misdemeanor charge, the lawsuit argues, they are subject to detention in "squalid conditions" and suffer "loss of wages, disruption of home and family life, and the stigma of having arrest record," which can hinder their ability to find employment.

 

On Sept. 19, Police Commissioner Raymond Kelly issued an operations order telling officers that a suspect must display marijuana in public of his or her own volition to be charged with a misdemeanor. "Thus, uniformed members of the service lawfully exercising their police powers...may not charge the individual with [a misdemeanor] if the marijuana recovered was disclosed to public view at an officer's direction," he wrote.

 

The Wall Street Journal reported earlier this month that after Mr. Kelly's order, arrests on the lowest-level marijuana charge—for less than 25 grams of marijuana in public view—dropped sharply across the city.

 

But the department continues to make thousands of these arrests each month: In March, the number reached 4,186, just shy of the 4,189 such arrests made in August, the month before the directive, according to the lawsuit.

 

The lawsuit cites the cases of five men arrested this spring on the misdemeanor charge after, in each case, a police officer discovered a small amount of marijuana while searching the person or, in one case, a friend.

 

In the latter case, Mahendra Singh, 22 years old, of Jamaica, Queens, was charged with a misdemeanor on May 2 after an officer found a small quantity of marijuana while searching a friend who was in the passenger's seat of Mr. Singh's car.

 

No drugs were found on Mr. Singh, the lawsuit said, though the complaint filed by the officer alleged that marijuana was recovered from Mr. Singh's hand.

 

Mr. Singh, a part-time student at Kingsborough Community College who works as a waiter on weekends, spent two nights in police custody. At his arraignment, he accepted an adjournment in contemplation of dismissal, which stipulates that a case will be dismissed in six months or a year as long as no offenses are committed during that period.

 

Another plaintiff, Moshesh Harris, 33 years old, of Brooklyn, was arrested twice in less than a year for marijuana in "public view" that in fact was concealed in his clothing, the lawsuit said.

 

 

 

Stop-And-Frisk and the Marijuana Misdemeanor Arrests Outrage; Good Luck to the Legal Aid Society Lawsuit

June 25, 2012

By Ed Koch

 

A great injustice is being perpetrated by members of the New York City Police Department on the people of this city. The injustice is not the program known as stop-and-frisk, which is employed by the NYPD primarily to arrest those carrying illegal weapons and to deter by having the program even larger numbers of predators from carrying such weapons. Law enforcement authorities believe the program of deterrence and arrests is in large part responsible for the continued drop in crime, particularly murders, over the last near 12 years.

 

The stop-and-frisk program has been denounced by its opponents as racial profiling and unfair to minorities, and some of the opponents have demanded that the program be abolished. Others demand there be changes. In a recent rally against the program, all of the announced New York City mayoral candidates planning to run in 2013 were present and voiced their criticisms.

 

I support stop-and-frisk, believing it to be helpful in making neighborhoods safer, but have also protested an aspect of the program that came to light as the result of a New York Times investigation, followed by an editorial and news articles. An editorial of April 2nd pointed out that there have been a large number of misdemeanor arrests for marijuana possession during stop and frisk operations.

 

In 1977, the state of New York decriminalized the personal possession and use of marijuana. The Times of June 23rd pointed out, “Under state law, possession of marijuana is a misdemeanor offense when the drug is being smoked or "open to public view. Possession of less than 25 grams of marijuana out of public view - for example, inside an individual's pocket or backpack - is a violation, warranting only a ticket.”

 

As a result of earlier complaints to Police Commissioner Ray Kelly that cops were turning violations into misdemeanors, the Commissioner issued an order, according to The Times of June 23rd, “Nine months ago, Police Commissioner Raymond W. Kelly issued a memorandum directing police officers not to make misdemeanor arrests for possession of small quantities of marijuana discovered when suspects are ordered to empty their pockets in stop, question and frisk encounters. But police officers have continued to charge New Yorkers with misdemeanor crimes - rather than issuing them tickets for violations - for possession of small amounts of marijuana despite Mr. Kelly's directive, according to a lawsuit filed on Friday by The Legal Aid Society.”

 

As a result of the earlier Times article reporting these arrests, as well as a Times editorial and the protests of citizens, an effort was made by the governor of the state of New York, Andrew Cuomo, to reach an agreement which had the support of the five district attorneys of New York City to get the state Assembly and Senate to change the law to allow the public carrying of small amounts of marijuana for personal use subject to a violation and a fine of $100.

 

The response of the Assembly led by Speaker Sheldon Silver was to pass the legislation. The response of the Majority Leader of the Senate, Dean Skelos, Republican, was to first say, as reported in The Times of June 6th, “I think we can work on that…That is wrong. It should be a violation. You’re following the policeman’s order.” But then he refused to support the Governor’s bill passed by the Assembly.

 

In stating “you’re following the policeman’s order,” I believe the Majority Leader was conveying his assent to addressing the demand of the cop to “empty your pockets” and the Governor’s proposal to allow the marijuana to be displayed publicly upon such a demand. If I am correct, the Majority Leader would agree, if asked by the Governor, to support less far-reaching language that would keep the offense a violation, even when the marijuana was publicly displayed as a result of following the police officer’s order.

 

I urge the Governor to immediately ask the Majority Leader if he would agree to new language and if he would, to immediately bring the legislature back from its recess to pass the legislation. In addition, I urge all five district attorneys to publicly state that they will not prosecute anyone charged with marijuana possession for personal use – other than for a violation. The hideous part of all of this is that studies show that whites are the greater users of marijuana, not blacks or Hispanics. It is black and Hispanic youths who are being arrested and end up with criminal records, destroying many of their already limited opportunities for getting jobs and achieving a better life. This is unacceptable in a society that believes it is devoted to justice and fairness.

 

I want to congratulate The Legal Aid Society’s efforts led by Steven Banks for bringing a lawsuit to end the arrests and punish the individual cops who have failed and are failing to carry out the order of Police Commissioner Ray Kelly. Those young men and women who have received misdemeanor sentences unfairly when violations would have been appropriate should be given the opportunity to have their records cleared of the erroneous charge.

 

If the Governor is unable to enlist Dean Skelos in passing the needed legislation now, not next year, I believe we should have a mass rally in City Hall Plaza to demand that the state legislature pass it. The election in November will allow us to punish those who refuse to protect the sons and daughters of this state who are unfairly designated as criminals by the very people they elect.

 

 

 

Reuters

Advocates sue NYC police over marijuana arrests

June 22, 2012

By Joseph Ax

 

The Legal Aid Society said on Friday it has sued the New York City Police Department, claiming that officers had illegally arrested thousands of individuals for small quantities of concealed marijuana instead of issuing them tickets as required by law.

 

The lawsuit, filed in Manhattan Supreme Court on behalf of five New Yorkers arrested in April and May, seeks both a declaration from the court that such arrests are unlawful and an injunction to stop officers from making them.

 

The lawsuit represents the latest line of attack for civil rights advocates against low-level marijuana arrests. Misdemeanor marijuana arrests have skyrocketed in New York City in recent years, from about 2,000 in 1990 to more than 50,000 annually in 2010 and 2011, and represent the most common type of arrest.

 

This year Governor Andrew Cuomo entered the fray, unsuccessfully pushing for legislation that would decriminalize public possession of small quantities of marijuana. Mayor Michael Bloomberg, Police Commissioner Raymond Kelly and the district attorneys of all five boroughs in New York City expressed support for the bill, which failed this week to gain traction in the Republican-controlled state Senate.

 

Cuomo's proposal was made in response to criticism of the police department's controversial "stop and frisk" practice, which, in an effort to reduce street crime, allows officers to search anyone they deem suspicious.

 

According to Friday's lawsuit, the plaintiffs were all charged earlier this year with possession of a small amount of marijuana that was "burning or open to public view." The lawsuit, however, claims the marijuana only became visible when the officer either searched them or directed them to empty their pockets.

 

When the marijuana is not in view, state law calls for a violation and a ticket, rather than an arrest, which typically requires a stay in detention and a court arraignment within 24 hours, the lawsuit said.

 

"The law mandates that these individuals promptly be issued a Desk Appearance Ticket, akin to a traffic ticket, and be released from custody and sent on their way," the lawsuit stated. "The police, however, repeatedly failed, and continue to fail to follow the law and, as a result, subject these individuals to the full arrest process, with all of its direct and collateral negative consequences."

 

Last year Kelly directed officers to issue violations, rather than misdemeanors, for small amounts of marijuana that only come into open view during a search.

 

Despite that directive, the lawsuit claimed, officers have continued to arrest such individuals on misdemeanor charges.

 

A spokeswoman for the city's law department, which defends suits against the police department, said the city has not yet been formally served with the complaint.

 

The Legal Aid Society and the law firm Davis Polk & Wardwell are representing the plaintiffs, the society said.

 

 

 

New York Tonight

NY1 (IND) New York

June 22nd, 2012 8-9 PM

 

Lewis Dodley, Anchor:  Governor Cuomo’s marijuana decriminalization bill may have failed in Albany this week, but that doesn’t mean the issue is up in smoke. New York 1 Criminal Desk reporter Dean Meminger tells us now there’s a court battle brewing. 

 

Dean Meminger, Reporter:  The Legal Aid Society has defended thousands of people who say they were wrongfully arrested for having small amounts of marijuana. Now, it’s taking legal action on behalf of all of them at once.  

 

Steven Banks, The Legal Aid Society:  We’re left with no choice but to go to court to protect New Yorkers from the harm that’s occurring every day on the streets with improper arrests by the police department.  

 

Dean Meminger:  On Friday, Legal Aid filed a complaint asking the state courts to make clear that cops cannot arrest people who have less than 25 grams of marijuana on them unless it’s out in the open. Governor Cuomo was pushing a bill that would make having that small amount a simple violation whether the drug was concealed or not. A person would only get a ticket—not arrested and possibly wind up with a criminal record.

 

Steven Banks:  It could affect their ability to get a job, their ability to maintain their housing, to maintain their ability to get educational loans, their ability to be in this country…

 

Dean Meminger:  The mayor, police commissioner, and the city’s five district attorneys backed the governor’s proposal, but Republican state lawmakers didn’t go along with it. The head of the NYPD’s legal bureau says officers have to follow the current law and must make an arrest if the marijuana is in the open at the time of a stop.

 

Inspector Kerry Sweet, NYPD Legal Bureau:  If there are legislative changes, we will adjust and adapt our policies to meet those legislative changes. But right now, the law states what the law states, and we enforce those laws.

 

Dean Meminger:  In September of last year, the police commissioner actually put out an order to officers not to arrest people for having small amounts of marijuana if it was concealed and only found during a stop-and-frisk or search of the person.

 

So, how much is a small amount of marijuana? Well, using this oregano as a substitute, I’m going to pour out around 25 grams, which is a little less than an ounce.

 

The Bronx DA says he’ll take a close look at any arrest that comes to his office. State lawmakers could readdress the issue when they start their new session in January. In Manhattan, Dean Meminger, New York 1.