Village Voice’s Best 2016 Reporting Shows Off Legal Aid Advocacy

The Legal Aid Society’s fight against an anti-loitering law and its push for investigation records were featured in two stories listed in the Village Voice’s compilation of its best reporting this year.

One highlighted story, “The NYPD Arrests Women for Who They Are and Where They Go — Now They're Fighting Back,” examined New York City Police Department enforcement of a vaguely-worded anti-loitering law and Legal Aid’s federal lawsuit seeking to strike down the unconstitutional statute. The story quoted Kate Mogulescu, a Supervising Attorney in Legal Aid’s Criminal Defense Practice, as it documented arrests under “Loitering for the Purpose of Engaging in a Prostitution Offense” where some women wore allegedly provocative garments including "tight black leggings" and a "pink + blue sweater hoodie." Arrests under the statute are concentrated in five police precincts, overwhelmingly targeting women of color, including transgender women, the story said. Mogulescu said, “There is no other law that I can think of that gives the police that much power and discretion. What you see is simply identity-based policing."

Another featured article, “The Incredibles: Judges Said These Cops Can't Be Trusted, So Why Does the D.A. Rely on Them?,” focused on a law enforcement investigation into several New York City Police officers and the circumstances surrounding the probe’s conclusion. The article noted how Sarah Siegel, a Staff Attorney in the Criminal Defense Practice’s Brooklyn office, kept pushing for the investigation materials in order to defend her client.

Village Voice
The Best of The Village Voice, 2016
December 28, 2016

The Incredibles: Judges Said These Cops Can't Be Trusted, So Why Does the D.A. Rely on Them?
(originally published November 1, 2016)
By Nick Pinto

When Sarah Siegel, a public defender with the Legal Aid Society, picked up the case this spring, it seemed ordinary enough. Her client, a thirty-year-old black man, was charged with possession of marijuana and handgun ammunition, which police said they had found at his East Flatbush apartment. But deep in the case's paperwork, something caught Siegel's attention: an affidavit from a confidential informant — used by police to secure a warrant to search her client's apartment — and the names of three police officers from Brooklyn's 67th Precinct: Lieutenant Edward Babington, Sergeant Vassilios Aidiniou, and Officer Jean Galliard.

Those names were a clue that this case wasn't as straightforward as it seemed. Looking them up, Siegel found a New York Times story from more than a year earlier documenting allegations of a pattern of perjury and evidence-tampering among a small group of police officers in the 67th. The officers would arrest someone, claiming they had noticed them carrying a handgun in public, out in the open, in a plastic bag, or in a bandana. As the cases progressed, the police would add another detail: The arrests weren't only based on chance observation, but were backed up by tips from an informant.

Actual proof of this confidential informant was often scant; paperwork was missing, and when called to present the informant at trial, prosecutors wouldn't be able to. Then there was the lack of forensic evidence. The cops repeatedly failed to test for fingerprints and DNA evidence or to retrieve available security camera footage, so the cases hinged on the cops' testimony alone. And time and again, that testimony was so unlikely and so inconsistent that judges said these officers couldn't be believed.

In December of 2014, when public defenders in Brooklyn first went public with their suspicions about the gun arrests in the 67th, New York was convulsed with protests sparked by the twin announcements that the police officers who killed Eric Garner on Staten Island and Michael Brown in Ferguson, Missouri, would not be charged. With demonstrations in the streets and reporters demanding to know what they were going to do about the allegations against the officers from the 67th, the Brooklyn district attorney and the NYPD announced they were both launching investigations into Babington, Aidiniou, Galliard, and a fourth officer, Detective Gregory Jean-Baptiste (since retired), who collaborated on many of the problematic cases.

Nearly two years later, the Voice has learned that both organizations quietly concluded their investigations months ago. The NYPD and the Brooklyn district attorney's office have agreed that there's nothing to see here, and prosecutors are back to making gun cases on the police work of Babington, Aidiniou, and Galliard, who continue to work in the 67th Precinct, an area that encompasses East Flatbush. Which raises a question: If judges say a cop is a repeat liar, but police and prosecutors disagree in a secret report, who are we supposed to trust?

Judges have been throwing out testimony from the police officers in question for nearly a decade, but it wasn't until 2013 that anyone connected the cases. On June 4 of that year Jeffrey Herring was standing outside his apartment building in East Flatbush. As Herring remembers it, it was one of the nicest days of summer so far, and he'd been enjoying it. He'd taken Snowy, his collie, to play in Lincoln Terrace Park, gotten a flat on his bicycle fixed, and run some errands at the local C-Town and dollar store, then returned home, pausing outside his apartment to talk on the phone with a friend.

That's when the cops rolled up on him, handcuffed him, took him to the 67th Precinct station, strip-searched him, and took turns interrogating him over three or four hours. They wanted to know about guns and drugs in the neighborhood, and if Herring didn't tell them something useful, he says they told him, they would find a way to put him away for years. Herring, then 51, had struggled with drug addiction as a young man and been arrested a few times as a result back in the 1990s, but had gone through treatment, turned his life around, and hadn't gotten so much as a parking ticket in seventeen years. He had nothing to give the police.

At his arraignment, Herring found out he was being charged with weapons possession and got his first glimpse at the police version of his arrest. According to the cops, Officer Galliard was walking down the street when he noticed Herring standing outside his building with a bike and some grocery bags. At the very moment Galliard was walking by, Herring had pulled a handgun out of a translucent white shopping bag and transferred it into another, darker, shopping bag.

There were some puzzling elements to the official version of events. The police never looked for fingerprints on the gun, nor did any DNA testing. Despite four surveillance cameras in the area, the police never collected any video evidence. In short, there was no physical evidence linking Herring to the gun: only the word of Galliard.

More than seven months after his arrest, Herring learned that the police were adding a new wrinkle: They had arrested him based on a tip from a confidential informant. There had been no mention of the C.I. in any of the reports or paperwork surrounding Herring's arrest, and the only documentation the police could provide now was some strangely contradictory paperwork for a $1,000 payout to the informant for helping get a gun off the streets. One letter from two months after the arrest requested the cash payment, to pass on to the informant. Another, from the day before, inexplicably stated that Sergeant Aidiniou and Detective Jean-Baptiste, who along with Lieutenant Babington made up the team Officer Galliard was working with, had already received the payment.

Herring's public defender, Deborah Silberman, a senior staff attorney at Brooklyn Defender Services, was suspicious, especially when she learned of a 2012 case involving Jean-Baptiste and Aidiniou that looked almost identical. As she kept digging, Silberman found more and more cases, stretching back to at least 2007, in which some combination of the same four officers — Aidiniou, Babington, Jean-Baptiste, and another team member, Victor Troiano — made arrests for weapons possession with little to no evidence linking the arrestees to the weapons except the officers' word and the supposed tip-off from mysterious confidential informants. As she connected the dots, Silberman came to believe she was looking at a pattern that suggested people in East Flatbush were getting locked up on the basis of lies and fabrications, and no one — not the NYPD, not the Brooklyn district attorney — was doing anything about it.

Eugene Moore's case was nearly identical to Herring's. Moore was arrested in October of 2012 by a team including Jean-Baptiste and Aidiniou, after officers said they saw Moore with a handgun in a plastic bag hung from the handlebar of his bicycle. After a year in jail awaiting trial — he couldn't afford bail — Moore learned that police were saying they were acting on an informant's tip, even though the paperwork to support this claim was suspiciously thin. When the subject came up at trial, Jean-Baptiste first testified that he was sitting in his vehicle when he got a call on his department-issued phone from a confidential informant he'd worked with "well over thirty times" over the past three years, and that he recognized the call because he had the C.I.'s name and number stored on the phone. But when Moore's lawyer asked if he still had his phone, the story changed. No, he longer had the phone, he testified, and besides, the call actually went to Aidiniou, and anyway he'd "never received a call on [his] phone from that person."

The judge in Moore's case, William Harrington, was unimpressed. Jean-Baptiste had been "extremely evasive to most of the questions," he noted. "The only way I can determine whether the gun was visible is to accept the word of this witness, which I don't find to be credible." Harrington tossed the detective's testimony and ruled the gun inadmissible. The case was ultimately dismissed and sealed.

There were other cases. After ten months in jail awaiting trial based on a similar police story, John Hooper and his lawyer were never told there was a C.I. involved in his arrest. It wasn't until the day of a hearing to determine whether the physical evidence against Hooper had been obtained through an illegal search that Hooper was notified that police claimed an informant had told them when and where they could find Hooper with a gun. Hooper's lawyer asked for a Darden hearing — a proceeding to establish, among other things, whether the informant was actually real — but the prosecution opposed it, and it never happened. Still, the judge in the case, Guy Mangano, didn't buy Jean-Baptiste's version of events.

"Supposedly this defendant doesn't see the police coming but elects out of nowhere to take the object out of his pants pocket and dump it in a garbage can even though he didn't see the police," Mangano said. "And the police officer, based on the shape of the object, knew it was a gun. They then took him into custody before doing any further investigation." It didn't add up, the judge decided. "I find it incredible that they thought it was a gun," he said. "It comes down to credibility whether I believe what this officer was able to see what he saw and reach the conclusions that he did."

The judge held off on making his decision on the case until the next day. But before he could rule, prosecutors came to Hooper with a deal: Plead guilty to a lesser charge and get sentenced to the time he'd already served. Hooper took the deal.

Even when judges did insist that one of the officers' informants present themselves in court, it didn't happen. A 2008 case saw gun evidence dismissed after Babington announced his C.I. wouldn't talk to the court, or even to prosecutors.

Possibly the strongest indictment of this group of officers on record is also one of the oldest. In 2008, Terry Cross was tried in federal court on charges of being a felon in possession of a firearm. The case against him relied on the testimony of Babington, Troiano, and another officer, but their story strained credulity. They claimed they'd arrested Cross after a C.I. fingered him in a photo lineup. But when asked to produce the array in court, what they came up with looked nothing like the output of the photo lineup program used by the NYPD. Judge Dora Irizarry didn't buy it. "The evidence raises substantial doubt as to whether the photo-array identification [by the C.I.] ever occurred," she said. "The bottom line here is that the testimony of the three police officers who testified here was just incredible, and I say 'incredible' as a matter of law," she said. "Frankly, in my view I believe these officers perjured themselves. In my view there is a serious possibility that some of the evidence was fabricated by these officers. ...It's disturbing. It's disturbing. ...These officers are coming here before the court and committing perjury."

In her written opinion, Irizarry went a step further, urging the U.S. attorney's office to "look into this matter and make a determination as to whether or not charges should be brought against these officers for perjury. This is shameful conduct."

There's no evidence federal prosecutors ever took the judge up on her suggestion and investigated the cops. Cross would later sue the city over the episode, securing a settlement of $115,000 in 2010.

Having assembled this disturbing dossier, Silberman brought her evidence to the D.A., but it didn't seem to be going anywhere. Finally, more than a year after Herring's arrest, she took what she'd found to Stephanie Clifford, then a reporter at the New York Times. Landing as it did in the middle of a national crisis of confidence in our criminal justice system, Clifford's story stoked a minor firestorm in its own right.

With media reports buzzing about a gang of Brooklyn cops suspected of inventing informants and lying on the stand, pressure was mounting on the Brooklyn district attorney's office. On January 15 of 2015, prosecutors dropped the case against Herring, and then–Brooklyn District Attorney Ken Thompson made a statement to the press: "We will investigate the arrest of Mr. Herring and other arrests by these officers because of the serious questions raised by this case." The NYPD announced it was launching its own Internal Affairs investigation into the officers.

The D.A. was looking into it; the furor died down. In the months that followed, spokespeople for the D.A. would confirm that the investigation was still under way, but would decline to provide any details on its progress, citing its ongoing status. The police department's own Internal Affairs investigation of the officers was similarly opaque. In July of last year, the Times reported that "at least one of those investigations was close to its conclusion," according to an anonymous "person in law enforcement familiar with the case." It would be the last anyone outside the district attorney's office heard of the investigation — until Sarah Siegel's case this spring.

Siegel was in a good position to find out the results of the investigations. She knew from her own research that the officers whose search warrant led to her client's arrest had been called incredible by multiple judges, and were under investigation. And so she asked for what is known as Brady material — any information the prosecution may have that might help the defendant assert their innocence. This includes anything that might cast doubt on the credibility of any witnesses or law enforcement officers the prosecution is relying on to build its case.

But when Siegel asked the assistant district attorney handling the case, Laura Green, to turn over the relevant Brady material, Green responded that there was nothing to turn over. As Green would later tell the judge, at a July 11 hearing, "Nothing was turned over because after conferencing the case with the A.D.A. that's in charge of our disclosures, as well as Appeals, there was no Brady turn over." The reason, Green told Siegel on the phone, was simple: The officers' personnel files were clean, and the D.A. had concluded its investigation having found no misconduct.

Siegel wasn't satisfied: She didn't have to content herself with the conclusions the D.A. drew behind closed doors, she argued before Judge Marguerite Dougherty in a July hearing. Case law entitled her to see all the materials used to come to those conclusions — and that meant all of the material of the investigation into the officers. The prosecution balked. "I don't think that would be appropriate, for defense counsel to be able to send the People on a fishing expedition after no wrongdoing has been found," the prosecutor argued.

A compromise was reached: The D.A. would turn over the personnel files and the materials of its own investigation to the judge, for her to review in her chambers, to determine if it contained anything useful to Siegel and her client. Green said she would get the material to the judge the next day. "I imagine it will be fairly voluminous," she said.

The next day came and went. The prosecutor didn't turn anything over. Instead, later that week, she came back to Siegel with an offer. Her client could walk, and as long as he didn't get in trouble in the next six months the case would be dismissed. A few days later, Siegel's client took the deal. With the case effectively closed, the D.A.'s office no longer had to show anyone what its investigation actually looked like.

In one sense, it's hardly unusual that there's been no public announcement from the NYPD about the outcome of an Internal Affairs investigation. Under a controversial New York statute perversely lodged within the state's civil rights code, it's actually illegal for the department to disclose the personnel records of a police officer. If a public school teacher is found to be abusing children, if a sanitation worker is disciplined for harassing passersby, if a bureaucrat is written up for sloppy paperwork, New Yorkers have a right to know about the job performance of the public servants in their employ. But if a police officer chokes a man to death, or plants weapons on people, or is a career perjurer, we are not entitled to know what professional consequences they encounter. In September Mayor de Blasio called on the state legislature to change this law, but it's not at all clear that the political will exists in Albany to do so. The NYPD did not respond to requests for comment for this story.

The Brooklyn D.A.'s investigation is another matter. Thompson, who died of cancer last month, has been widely eulogized as a progressive reformer in criminal justice, in part because he talked with passion about rolling back the machinery of mass incarceration, but also because he did concrete things like increase the resources devoted to his office's Conviction Review Unit, which has exonerated twenty-one people in recent years, six of them set up by disgraced former NYPD detective Louis Scarcella, who's been widely accused of coaching witnesses and messing with evidence on cases from the 1980s and '90s. It may have taken some pressure for Thompson to announce his inquiry into the officers in the 67th, but, once announced, it's hard to see why the D.A. wouldn't want to be equally public in announcing the conclusion of its investigation. After all, the last the public heard, there were serious questions about the honesty of a group of NYPD officers. If they were in the clear, why not make that news public, both to rehabilitate the officers' names and to reassure New Yorkers that the system was working?

When the Voice asked the D.A.'s office about the news that it was admitting in court it had cleared the police officers, a spokesman confirmed that the investigation was concluded in November of 2015, a year ago: "The investigation involved an extensive review of documents, multiple witness interviews, and reviews of surveillance video," the statement read, adding that the investigation "concluded that there was no wrongdoing by any of the police officers involved in the gun arrests in question, and that the allegations that the officers planted guns were categorically false. D.A. Thompson reviewed the report and agreed with the conclusion." Asked just what sort of "wrongdoing" the D.A.'s investigation was concerned with, a spokesman declined to answer on the record, but a source familiar with the inquiry confirmed that its scope was limited to looking for criminal misconduct.

The D.A.'s statement answered some of the questions the Voice had asked, but it left many more hanging. If the D.A. was really able to prove that the officers were acting on tips from informants, why was so little evidence of those communications presented in court, and why didn't the informants present themselves when ordered to by a judge? Even if the C.I. tips were real, how did the D.A. ascertain that the guns in these cases really did belong to the defendants, since in each case the only evidence linking them was the testimony of the police? What did the D.A. discover that overcame the conclusion of three separate judges that these officers were not to be believed?

It remains unclear why — if the investigation into the officers of the 67th was thorough and complete — the D.A. was willing to drop a prosecution rather than let a judge see the content of its investigation. Sarah Siegel's case indicates that the D.A. is now back to prosecuting based on these officers' word. Yet if these cops are clean, why drop the case against her client and the one against Herring? Why agree to vacate Hooper's conviction after the fact? If the police are telling the truth, the D.A. let gun criminals go free.

In fairness, prosecutors generally aren't in the habit of alerting the public when they look into someone's conduct and find no wrongdoing. It might have been courteous to let the public defenders who first flagged this issue know that the investigation was concluded. It might have been thoughtful to alert Herring — who's now suing the police and the city for what happened to him, but who agreed nearly a year ago to suspend his suit pending the outcome of the D.A.'s inquiry — that it was indeed concluded. But it's not strictly the D.A.'s job. However, as recently as this spring, the Voice was told there was still an ongoing investigation. It's entirely possible that that was the result of miscommunication within the D.A.'s office. It's also possible that absent any real systems of accountability for police officers, the public's right to know is an abstract notion.

Getting illegal guns off the street has been a longstanding goal for the City of New York. Even as the city's homicide rate has continued to plunge from its peak in the 1990s, the flow of illegal handguns into the city from out of state has continued. Under Mayor Bloomberg, a vocal advocate against gun violence, the recovery of illegal guns was the primary justification for the controversial and ultimately unconstitutional program of stop-and-frisk. Speaking in Aspen last year, Bloomberg articulated his rationale once more, saying the "only way to get guns out of kids' hands is to throw them up against the wall and frisk them."

Mayor de Blasio won election campaigning against stop-and-frisk, though he too is making the recovery of illegal guns a priority. In 2014 the NYPD made more than ten thousand arrests in which the top charge involved a weapons offense. In January of this year, de Blasio announced Project Fast Track, a series of programs designed to further crack down on gun possession and speed gun cases through the courts. "New Yorkers in every neighborhood in this city are united in their desire for safe streets," he said. "To the few individuals responsible for New York City's remaining gun violence, our message is clear: You will be found, and you will be quickly prosecuted to the full extent of the law."

The question facing the mayor, the police, and prosecutors is whether they can ramp up police enforcement and accelerate gun prosecutions without further undermining public trust in the criminal justice system. "The majority of the Bill of Rights has to do with protecting citizens from the power of the state," says Scott Hechinger, a senior attorney with the Brooklyn Defenders who helped Silberman bring her concerns to the D.A. in 2014. "For every one stop-and-frisk or bad search that turns up a gun, there are a thousand more that turn up nothing. So if we're thinking about public safety, you've got to be thinking about the relationship between police and policed. If the Fourth Amendment breaks down, then we become even more lawless."

The fact that the Brooklyn D.A. is evidently back to prosecuting cases based on the word of police officers whom judges have repeatedly found to be giving unbelievable testimony in gun cases should give us all pause, says Silberman.

"If you look at any other field, a physician who lies to a patient, a principal who lies to a bunch of parents, you look at the nanny who a parent suspects hasn't treated a child properly, any parent would say it's not worth the risk," she says. "If you begin to mistrust your doctor because you feel they haven't been completely forthcoming or they haven't followed all the rules they're supposed to, you don't want to go back to that because you don't feel safe with that person. And yet when it comes to police officers engaging in questionable behavior, improper behavior, it seems like we're willing to look the other way."

Village Voice
The NYPD Arrests Women for Who They Are and Where They Go — Now They're Fighting Back
originally published November 22, 2016
By Melissa Gira Grant

When two officers of the New York Police Department came for her, Sarah Marchando was on a moving bus.

It was May 7, 2015, around 7:30 in the morning. Marchando, who was 27 at the time, had just boarded the B6 in East New York after seeing her boyfriend. He watched her get on the bus. She swiped her MetroCard and took her seat with the morning commuters. "Then, five minutes later, I get a phone call," Marchando told the Voice. It was her boyfriend, "telling me, 'You know you have got a detective car behind the bus?' "

Moments later, "they cut the bus off," Marchando says. "It wasn't like the bus was at a stop." Two officers in plainclothes rushed on. They wouldn't tell her why they were there when she asked, according to a recent lawsuit detailing her arrest. When Marchando didn't immediately go with them, Officer Joseph Nicosia grabbed her and pulled her down the stairs. She tried to stop him from grabbing her arm, the suit says, and one of the officers put her in a chokehold. Six officers ended up involved in the scene. Officer Michael Doyle, the suit states, remarked to the others, "She's back," and "we got her."

"It was just a complete struggle," Marchando said. Cops had wrestled her to the ground. Passersby recorded her arrest as she told police she couldn't breathe.

Describing the scene when we met last month, Marchando sounded steady but exasperated, her ornate white nails flashing in the light. "You refuse to take me to the hospital because I can't breathe and I am throwing up on top of that and I am still sitting in the cell with handcuffs on. I sat in the cell for two and a half hours with handcuffs on before they went and found a female officer." The arrest left her with a sprained wrist, she said, and nerve damage in her right arm.

Marchando was charged with violating a vaguely worded New York law prohibiting "Loitering for the Purpose of Engaging in a Prostitution Offense," a misdemeanor she had been arrested for seven times between 2013 and 2015 in that same precinct. In one loitering case in 2012, she served 45 days on Rikers Island.

"It has been to a point where I have come home from Rikers Island and caught a case less than two days later," she said. "I felt like I was being watched."

That's because she was. Officers in the 75th Precinct knew Sarah Marchando, who is Latina and cisgender, from prior arrests. According to a sworn court complaint, Officer Kelly Quinn said police had observed her for forty minutes that morning before they arrested her, and claimed they saw her "beckon to multiple vehicles passing by with male drivers," "approach a vehicle," and "engage in conversation with a male inside of said vehicle." This was all supposed to be evidence of her "purpose" to commit a prostitution offense. Marchando and her attorneys contest this. She was waiting for a bus. If she was loitering for the purpose of prostitution, she was not engaged in prostitution at the time of her arrest, much less loitering when two officers grabbed her off public transit.

Sarah Marchando had lived in a few places in the 75th. For a short time, she was in hotels around an area police told her — after an arrest — was "the Combat Zone." That's the same nickname the police in Cambridge, Massachusetts, where she grew up, used for the old red-light area in Downtown Boston. "Then I moved to Dorchester, started messing with the bad boys. Started getting in trouble." She said Massachusetts was boring, though, and so she came to New York. But now she's had to leave Brooklyn, too.

"It is enough for me to know this is not a safe situation. This is not an OK situation," Marchando said. "I can't continue to be intimidated to come outside, to know that even at seven o'clock in the morning, I am still a target and a priority."

These targeted and repeated arrests are part of a much larger pattern within the NYPD. From 2012 through 2015, nearly 1,300 individuals were arrested in New York City and charged with loitering for the purposes of prostitution. The vast majority are women. Such arrests are not the result of stings, in which undercover officers attempt to solicit sex for money. Neither are they the result of investigations that produce evidence — emails, text messages, online ads — that the women had intended to sell sex. With a loitering arrest, a woman's crime need only exist in the arresting officer's head.

Whether or not she was engaging in prostitution in that moment, or in the past, Marchando still has constitutional rights. So she, along with seven other plaintiffs backed by the Legal Aid Society of New York (which has represented them in loitering cases), filed a class-action civil rights suit this past September, challenging the constitutionality of New York's law on loitering for the purposes of prostitution. Enforcement of the statute, they state, is "based solely on a police officer's subjective determination that the activity was 'for the purpose' of prostitution." That is, if police believe a woman's "purpose" is to sell sex, they will arrest her.

"This is a law that is four decades old," said Kate Mogulescu, a supervising attorney in the Legal Aid Society's Criminal Defense Practice, adding that enforcement is "arbitrary and targeted and abusive." Asked about its enforcement of the loitering statute, the NYPD referred the Voice to the Law Department, which is defending against the Legal Aid suit. "We are not discussing any aspect of this matter while litigation is pending," Law Department spokesman Nick Paolucci said.

Community and legal advocates have likened the ways police enforce laws against loitering for the purposes of prostitution to stop-and-frisk. But the consequences under the loitering law are steeper. Under stop-and-frisk, Mogulescu said, "many of the police interactions did not lead to an arrest. So although harmful, and a violation of the Constitution and the law, people weren't being swept, necessarily, into the criminal legal system.

"But with the loitering law," she continued, "we have arrests. And we have people who are marked then in the criminal legal system." Overwhelmingly, those people are women of color, cisgender and transgender alike.

"There is no other law that I can think of that gives the police that much power and discretion," Mogulescu said. "What you see is simply identity-based policing."

Anti-loitering policing is highly concentrated in five precincts, according to arrest data from Legal Aid and the New York State Division of Criminal Justice Services' arrest statistics. Between 2012 and 2015, the majority of the arrests — 68.5 percent — were made in Bushwick, Belmont/Fordham Heights, East New York, Hunts Point, and Brownsville, neighborhoods where residents are predominantly people of color. In a Brooklyn court where prostitution cases end up, 94 percent of the defendants facing charges of loitering for the purposes of prostitution were black, according to a court monitoring project conducted by the Red Umbrella Project in 2013 and 2014. Overall, according to the State Division of Criminal Justice Services, 85 percent of those arrested for loitering for prostitution between 2012 and 2015 were black or Latina.

Police say these neighborhoods are "prostitution prone." Mogulescu believes that designation is "a self-fulfilling cycle. They make an arrest in a place, therefore that place becomes 'prostitution prone' — and they can make more arrests in that place, because they have already identified it as prostitution-prone." Loitering arrests don't reveal the places sex work happens in the city, only the places where women are most likely to be arrested, whether they are engaged in sex work or not.

Police also cite the women's clothing as evidence of their "purpose" to engage in prostitution: Is it "revealing" or "provocative" clothing? How tight are their leggings? Can you see their cleavage? Officers document this on preprinted supporting depositions, which also ask: How many people was a suspect "engaged in conversation" with? How much currency did she have at the time of arrest? How many condoms? On sworn depositions provided to the Voice by Legal Aid, officers itemized the following attire as evidence:

  • PO Telesca, September 14, 2016, said the woman he arrested was wearing "tight black leggings";
  • Lieutenant Dave Sieve, March 10, 2016, said a woman he arrested was wearing a "pink + blue sweater hoodie";
  • PO Figaro said on August 23, 2015, he arrested a woman wearing "mini dress, bra strap showing";
  • and PO Sieger, in another August 2015 arrest, said the woman was wearing "tight jeans and tight tank showing clevage [sic]."

Such attire or behavior is not at all unusual in New York City. But such arrests are part of routine anti-prostitution enforcement. Police and prosecutors can also be confident that women do not often fight these charges. Of the close to 1,300 loitering cases between 2012 and 2015, according to Legal Aid, "nearly 400 of the arrests did not lead to convictions." This could mean charges were never filed, or a case was dismissed, or the accused was acquitted. But, as Sarah Marchando and others point out, even if their record is sealed, police do not expunge from their memory the face of a woman they have previously arrested. As a result, they say, they are unable to go out in public without fear of another arrest.

Which is why the Legal Aid suit contends that the city of New York "chooses to enforce" the loitering law "in an unconstitutional manner by using it to police expressions of gender identity and sexuality based on outdated and paternalistic notions of what clothing NYPD officers deem 'revealing' or 'provocative,' with a disproportionate impact on women of color."

"When you have factors like an article of clothing, or the fact that you are one gender and you are talking to people of another gender," Mogulescu said, "you have to expand your view and ask, where is this happening that's not being policed? And our answer with the loitering case is, everywhere, except these places when the police decide these are the arrests they are going to make."

Tiffaney Grissom first saw jail for prostitution arrests more than a decade ago in the West Village. "That was the beginning stages of the cleanup," she told the Voice in October. Her long dark hair was pulled back, her smooth leather purse on her lap. We were in the Lower Manhattan offices of Legal Aid, not far from where the piers on the city's West Side once stood.

"It was still pretty rough out there. There was no Gansevoort there," Grissom added dryly, referring to the luxury hotel that opened in 2004. As she was growing up in the Village as a young, transgender black woman, the neighborhood she hung out and worked in gentrified around her. "Half the stuff that was out there when I was out there is no longer there. The pizza shops are gone; the sex shops are gone. It is all gone. The bars are gone and going. If they are not gone yet, they are going."

In those days in the Village, Grissom said, it was different: You would make enough money that sitting in jail for a night wasn't the worst thing. "Initially, it was routine. It was kind of like paying your dues." She would plead guilty to the prostitution or loitering charges, get time served or community service, go home, and be back out. "I was just like, 'Oh, in jail again,' " she added with a sigh. "I had a girl who got arrested every single Friday. Every single Friday! It was literally like we knew them by name, they knew us by face, sometimes by name."

Once she got older, Grissom stuck to the Bronx, where she lived. She first moved there at 21, after she got kicked out of her sister's place, she said, and needed a place to live. "The Bronx would never be my ideal choice of places to move to. It was just convenient. Then I kind of got stuck in the Bronx." Her boyfriend was there, she said, pausing before going on a highlight-reel recollection of those times. "Living stuff started going up/down. All this ridiculousness."

Her record from the Village remained with her. But between Fordham and Kingsbridge roads, for about a three- or four-block radius, she said, she could go out, maybe pick someone up, see what happened, make some money. "When you go to the area," she said, "it is kind of like the Village outside of the Village.

"It is like you go out there and you don't have to be closeted," she continued. "The girls that are trans don't have to live their closeted trans life. ...In those places, you can be free. ...You don't have to bite your tongue."

Grissom added, "The men that come there...they appreciate trans women. ...Sometimes they have money, sometimes they don't have money." She wouldn't always go out to work; it could be just to hang out, and some of the people she was hanging out with could be working, too.

For a while, Grissom felt like police left her alone, or maybe they just didn't know her yet. "I didn't get arrested until I was standing next to somebody who had frequently gotten arrested in the Bronx," she recalled. That was in 2011. Then the arrests started stacking up again. It was like "guilty by association," she said. "That is not a reason to arrest somebody."

One night in October 2013, she was leaving the Twin Donut on Fordham Road, "where everybody of the only places you can just go in and sit down when you don't have money." She walked for a while, speaking with a man along the way. After about 30 or 45 minutes, they went their separate ways. It was then that an unmarked police car pulled up alongside her. Officers Bryan Pocalyko and Christopher Savarese demanded she stop and placed her under arrest.

Only after Grissom was arrested and loaded into a police van with another woman who had been arrested that night did she learn that she was charged with loitering for the purpose of prostitution, though she says that at no time had she tried to solicit money for sex.

According to the lawsuit, when Grissom was brought to the 52nd Precinct, Officer Pocalyko refused to believe she was a woman.

"[Officer] Pocalyko unlawfully ordered Ms. Grissom to be strip-searched by a female police officer even though she was not suspected of possessing any drugs or contraband," the suit reads. "The female officer took Ms. Grissom into a bathroom and ordered her to lift her shirt, shake out her bra, and pull her shorts down. This search was for the purpose of confirming whether or not she was female, as her identification indicated."

Later in court, the Legal Aid suit says, one of the officers "alleged that Ms. Grissom's purpose was prostitution because she was observed at a location 'frequented by people engaged in prostitution' and was wearing 'tight short shorts [and a] tight tank top.'"

If Tiffaney Grissom had been doing the same thing, in the same outfit, but in, say, Times Square, would she have been arrested? It depends: In what decade?

New York's law criminalizing loitering for the purpose of engaging in a prostitution offense only dates to 1976. Before the law was passed, the NYPD would use the existing, general anti-loitering laws to target women it wanted to keep off the streets. In one infamous six-month wave of sweeps in 1967 and 1968, police arrested more than three thousand women who either were or were profiled as sex workers, mostly centering on Times Square, driven by panic about street crime. Police said they would charge the women with loitering or disorderly conduct offenses because it was easier than trying to prove they were engaged in prostitution. The Legal Aid Society along with the New York Civil Liberties Union intervened to have some of the loitering cases dismissed.

This crackdown came as the NYPD began to pressure the state to add loitering for the purposes of prostitution to the penal code. "The actions of these individuals have always had a deleterious effect on the business and social life of the community," wrote the department in a 1967 memo. But at the time, civil rights attorneys were testing loitering statutes in the courts. In 1972, the U.S. Supreme Court ruled that a law prohibiting loitering, "vagrancy," and "nightwalking" was unconstitutionally vague. It was after all this that loitering for the purpose of prostitution was added to the New York State penal code. To this day, the NYPD continues to make a few thousand prostitution arrests each year under a variety of statutes, with several hundred for loitering for prostitution.

Women targeted under these laws have tried to challenge them before. When transgender activist Monica Jones was arrested under a similar law in Phoenix against "manifesting prostitution" after accepting a ride one night from a man who turned out to be an undercover cop, she launched a national campaign against the law. She and her supporters described it as making a crime out of "walking while trans" — very similar to how women describe the NYPD's enforcement of the loitering law. Jones's conviction was overturned on appeal, but the law in Phoenix still stands.

Eight days after she was pulled off the bus in East New York, Sarah Marchando was arrested again. "I caught that case at five o'clock in the morning," she said, "with overalls on and a pair of shoes. It doesn't matter what I have on or how I am dressed."

Marchando said she would have to plan ahead about when to go out just to try to avoid arrest. "You have to keep in the back of your mind that, 'OK, what is the day?' Because if it is that type of day, like on Friday nights or Saturday mornings, they are doing prostitution sweeps."

According to Tiffaney Grissom, "The only thing that you can do to avoid it is just not go outside."

But she would have to leave the house for court appearances, and a lot of them. At one point, Grissom said, she was dealing with loitering charges in both Bronx and Queens courts. In addition, she had to show up for court-mandated therapy sessions, meant as a prostitution diversion program. "It was literally a whole-week schedule," she recalled. "It was like Tuesdays and Wednesdays it would be Brooklyn. Then, get up on Wednesdays and Thursdays and go to the Bronx. It would be excessive."

"We were always in court," longtime community advocate Lorena Borjas told me. She's the founder of the Lorena Borjas Community Fund, a legal fund for transgender New Yorkers in immigrant communities, which has offered assistance to trans women in Queens targeted in loitering arrests. "I can say that four years ago we were having arrests about every fourteen days," she recalled. "They were specifically focused on the trans community that crosses the Jackson Heights area. Especially with all of the trans girls that this was happening to who were undocumented, they were, of course, running the risk of being deported. When people had to appear in court, they would say, 'Well, I saw you out here last Friday, so now this Friday I am going to arrest you.' "

Borjas explains that what makes Jackson Heights different from East New York or the Bronx is that there, the women most likely to be targeted in anti-loitering policing, members of the Latina trans community, were visible and organized. Borjas did street outreach, sharing "Know Your Rights" cards so they knew how to protect themselves during police encounters. Groups like Make the Road New York have documented the policing of Jackson Heights' LGBTQ Latinx community, highlighting the use of anti-loitering laws to sweep trans Latinas off the street.

"The police were saying a while ago that they wanted to change the face of Jackson Heights," Borjas said. "They wanted to stop drug sales, they wanted to stop people from selling tacos and food in public." All this came at the same time as crackdowns on trans women. "They were saying, 'The face of Jackson Heights is something we are going to change.' According to them, the mentality was that they were going to do this by arresting the whole world."

As in the West Village when Tiffaney Grissom worked and hung out there, police used anti-loitering laws to "change the face" of neighborhoods. "This kind of policing is very much tied into the gentrification and sort of economic shift in certain areas," said Legal Aid's Mogulescu. "The call for a kind of 'cleanup' of the streets that accompanies that — this is not the only law that's used to do that, but it's a pretty striking example. And because the law allows for such abuse — it's part of the law itself — there's no check on that. So it becomes a very useful tool for getting people off the street." Mogulescu's voice softened. "And we have to think about who those people are."

After all her arrests, Sarah Marchando ended up leaving Brooklyn. She told me she's still trying to keep a steady place to live, still trying to find work. "It wasn't like I could just say, 'Hey, let me go get a job,' because I am not stable. I can't get stable if every time I turn around I am in jail again."

Tiffaney Grissom left the Bronx, too. She estimates that of all her arrests for loitering, about 80 percent of the time, she wasn't even out doing sex work. "Whether you are 'hoing or not 'hoing," she said, "even if you look like you might be trans, you are going to jail."

What she remembers from all the arrests is, "They always give you this whole speech of 'high prostitution-prone area.' " After a while, it was like police thought that was just anywhere she was. "It is a stigma that comes with being trans. You are automatically a sexual object or a sex worker. You are no longer just a normal person.

"And on top of that," she said, "you don't want to go back and tell your mother or whoever you live with, 'Hey, just got arrested for 'hoing.' "

In Jackson Heights, the loitering crackdowns on the community, in some ways, made it all the more determined, said Borjas. "Two years ago we started to do protests and to become more visible so that we could tell the police and the neighborhood, 'We are here. We are not going anywhere. We are your neighbors and your friends. We are your clients. We are the ones that come to buy a cup of coffee in the morning. We go to the supermarket and we, too, need protection, just like you.' "

Tiffaney Grissom didn't have that. After she got arrested twice in the same week, she said, police scolded her. "They were like, 'You are just not getting it through your head.' It is not that I am not getting it through my head; it is, regardless of however many times I get arrested, I still need to eat. This is my livelihood." So she kept working. As a result of one prostitution arrest, she ended up at Rikers. "It was the day before Thanksgiving that I got out. I had on a minidress. It was ridiculous. A minidress, no money....When I had gotten there, I had just shut down. I didn't pee; I didn't eat. I didn't do anything for four days."

After years of this, both women told me, they were done with pleading guilty. They were done with Rikers. They signed on to be plaintiffs in the case challenging the law itself.

"It took a lot to get here," Marchando told me. "A lot of cases." For one, she needed support to fight her charges. But now, as part of the legal challenge, if they are successful, this could mean the end of so many women ending up in the system in the first place. "I was just going to jail and there were no questions asked," Marchando said. "It needs to change. It is a targeting thing that has to stop, and if nobody says nothing, it is not going to be dealt with."