On Friday, September 30, 2016, The Legal Aid Society of New York and Cleary Gottlieb Steen & Hamilton LLP filed a civil rights class action against the City of New York and certain named officers of the New York City Police Department (NYPD) on behalf of women of color, many of whom are transgender, who have been wrongly arrested for innocent conduct under New York Penal Law Section 240.37. The plaintiffs challenge Section 240.37, loitering for the purpose of prostitution, because it is unconstitutional on its face and also because it is unlawfully enforced by NYPD officers who target women for arrest based on race, gender, ethnicity, gender identity, and/or appearance. The lawsuit’s announcement garnered widespread praise and enthusiasm from human and civil rights advocates.
“When you look at who is arrested under 240.37, and the pattern since the law was enacted four decades ago, a clear picture of discrimination emerges,” said Tina Luongo, Attorney in Charge of the Criminal Defense Practice of The Legal Aid Society. “The statute must be struck down because it allows this injustice to go on.” According to the complaint filed in the Southern District of New York, data show that 85% of the individuals arrested under Section 240.37 are Black or Latina. Between 2012 and 2015, five precincts in New York City accounted for nearly 70% of all citywide Section 240.37 arrests. These precincts (Bushwick, Brooklyn; Belmont/Fordham Heights, Bronx; East New York, Brooklyn; Hunts Point, Bronx; and Brownsville, Brooklyn) are all in neighborhoods where the majority of residents are people of color.
Under Section 240.37, a woman can be improperly arrested and detained simply because an officer takes issue with her clothing or appearance and decides that her purpose is to engage in prostitution. The Legal Aid Society has represented women assumed to be loitering for prostitution because they were wearing a “short dress,” “a skirt and high heels,” “tight black pants,” or “a black dress.” An outfit considered appropriate elsewhere becomes the basis for an arrest when worn by a woman of color on Pennsylvania Avenue in Brooklyn or Jerome Avenue in the Bronx. As one plaintiff explains, NYPD practices make women like her “fearful” of arrest based on “what I have on.”
Kate Mogulescu, a Supervising Attorney in the Criminal Defense Practice at The Legal Aid Society has represented hundreds of women charged with loitering for prostitution over the last several years. “These arrests lack oversight and escape scrutiny,” Mogulescu explained. “It is not just defenders who take issue with the quality of arrests. Judges and prosecutors recognize that many arrests under Section 240.37 are unlawful and absurd. Yet, the practice continues and its crushing weight falls squarely on our clients – an already marginalized group who then suffer the permanent consequences of involvement in the criminal legal system and the stigma of a prostitution-related arrest.”
Despite claims that it has reformed its relationship with the transgender community, the NYPD utilizes Section 240.37’s unconstitutional provisions to engage in “sweeps” aimed at arresting transgender women of color in public places where they attempt to gather and socialize as a community and avoid the violence, hostility and discrimination directed at them in other parts of the City. Police arrest transgender women for standing outside, speaking to one another, or walking from a subway or grocery store back to their house, and have expressly warned plaintiffs that “girls like them” would be arrested if they were merely seen outside after midnight. American Civil Liberties Union Staff Attorney Chase Strangio offered, “laws like Section 240.37 give too much discretion to police officers, encouraging biased policing against women of color, particularly transgender women of color, people living in poverty, and other members of the LGBT community.”
One plaintiff explained that this “unjust law has affected me, my sisters, friends and family. This lawsuit is important because it will change something that is disabling my community, putting us at even more risk than what we already have to endure and face on a day to day basis.” Another plaintiff noted that police profiling of transgender women for prostitution offenses is “a problem that persists around the world.” Seeing the constitutional challenge to Section 240.37 as a way to stop this discrimination, she added, “let’s start at Jerome Avenue in the Bronx. One voice is better than none.”
Despite widespread criticism of its stop and frisk practices, the NYPD allows its officers to use Section 240.37 to harass and repeatedly arrest women whom they have previously arrested for a prostitution offense, even when they do not observe the women engaging in any criminal behavior. Criminal court judges take issue with this widespread practice, emphasizing that when police arrest a woman and charge her with loitering for prostitution simply because she has previously been arrested for prostitution, it amounts to “emblazon[ing]” a “scarlet letter” upon her and thus violating core principles of a “free society.” For example, in one case, a woman was leaving a restaurant in a busy commercial area when officers who knew her from a previous arrest called her over to them by her name and arrested her without cause. She described how the NYPD uses Section 240.37 to unfairly target women: “They see women who they know that have a history of prostitution and they profile us. I should be able to walk wherever I want.” A plaintiff repeatedly arrested merely because of her prostitution record now feels as though she is not able to go outside in Brooklyn. “My record is bad, but it shouldn’t be that any time they see me it’s ‘let’s take a field trip to the precinct.’”
“Section 240.37 poses a serious threat to the civil and constitutional rights of women of color, who are too often unfairly targeted by the police, and the law fails to provide basic safeguards against abuses of discretion by law enforcement,” said Rishi Zutshi, Partner at Cleary Gottlieb Steen & Hamilton LLP. Although society has firmly rejected many of the flawed assumptions about gender, gender identity, sexuality, and appearance that prevailed 40 years ago, the NYPD continues to rely on these outdated and discriminatory notions to justify arrests under Section 240.37 without probable cause. The lawsuit seeks to put an end to these unjust practices and to this unconstitutional law.
The Legal Aid Society is a private, not-for-profit legal services organization, the oldest and largest in the nation, dedicated since 1876 to providing quality legal representation to low-income New Yorkers. It is dedicated to one simple but powerful belief: that no New Yorker should be denied access to justice because of poverty.
Cleary Gottlieb Steen & Hamilton LLP employs more than 1,200 lawyers in its 16 offices around the world. Since 1946 its lawyers and staff have worked across practices, industries, jurisdictions and continents to provide clients with simple, actionable approaches to their most complex legal and business challenges, whether domestic or international. Cleary lawyers and staff work for the benefit of those in need, dedicating a substantial amount of time and resources to pro bono legal work and other community activities.
Here’s what our allies have to say about the significance of this litigation:
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