NYPD, TRESPASS, AND FREEDOM

The New York Times published an article today about the Bronx District Attorney's Office refusing to prosecute cases of trespass out of Public Housing properties in the absence of some sort of special inquiry.  Here is a link to the article.

According to the New York Times article, the Bronx District Attorney's Office is responding to complaints regarding NYPD police officers arresting people for trespass in public housing buildings who either legitimately live there or had the legitimate right to be there visiting friends or relatives.  The process is understood as arising in the context of some police officers, or perhaps a segment of police officers, who are under the impression that they are entitled to approach and demand explanations from any person they see in a public housing building. 

Sometimes, these encounters go nowhere and the people accosted are permitted to go about their business.  Sometimes, these encounters end up producing arrests for other things, such as possession of drugs.  Sometimes, these encounters end up producing arrests for trespass.

I have been seeing these sorts of cases for the last 20 years in New York City criminal courtrooms.  When I first started out as a trial lawyer for the Legal Aid Society in Queens, I saw so many of these trespass cases, I even had my own nickname for them.  I used to call them the "where are your papers?" cases because it seemed shocking to me that people in public housing were so consistently subjected to this sort of treatment in America.

It is tempting to imagine that people  charged under these sorts of circumstances will always be so outraged that they will want to make a lot of noise about it and fight it tooth and nail for the principle of the thing.  But the fact of the matter is that my clients back then were by definition people living in public housing whose circumstances were such that returning back and forth to court to fight lengthy court battles in criminal court on principle was not their first priority.  Just getting the subway fare to come to court was often a problem.  Many of my clients in these sorts of cases were more resigned to the way they were treated than outraged about the principle of the thing.

Further, the level of the offense charged was often so small to begin with that it was almost always possible to obtain extremely favorable and quick resolutions to the cases.  There may not have been a policy not to prosecute these cases like seems to be the case in the Bronx now, but the prosecutors on the line did not as a general rule think too much of such cases.  Therefore, resolutions were usually quick and relatively harmless.  The cases were often Adjourned in Contemplation of Dismissal (ACD) (a delayed dismissal) or reduced to a non criminal offense with a minimal fine.

I found that many people in the real world from the public housing projects charged with trespass did not share my enthusiasm to fight the charges and seek glorious victory in Court.  Fighting the charges meant delays, returning back and forth to court, and in the end an uncertain result if the case were ever tried.  Faced with the possibility of ending the case right away with an ACD or a non criminal offense (something like a traffic ticket), more often than not, people would simply grab the opportunity and leave the glorious fight for principle to someone else.

It was my job to go to court every day.  Many of my clients held entry level type jobs or part time jobs where there was no such thing as missing a day of work for court, or were looking for work and therefore unable to commit to the long term prospect of returning back and forth to court, especially when the alternative to settle the case was relatively harmless.

I think I had one, of the many, many people I represented for this actually agree to push one of these trespass cases in spite of the "good" offers.

In the end, then, the worst part of the experience for many of the people was the 24 hours or so being held in the arrest to arraignment process of New York City.  And so 24 hours or so after the incident, the person would emerge without a criminal record and with no further obligation to the Court or anyone else.  The person may have lost a job if the 24 hours kept him from getting to work on time.  The person may have lost a day in school.  The person may have missed some other personal engagement.  But from the criminal justice system's perspective the person was no worse off since the person was free and did not have a criminal record.

I represented some people who had experienced this process more than once.

This situation of being subject to the "where are your papers" questions from the police was, it seems, and perhaps still is a fact of life for those living in public housing in New York City.  Perhaps in the Bronx things are changing.

Of course from the police perspective, they will always be able to point to the set of such cases where they accost someone for no real reason but then find drugs on them, a weapon, or it is discovered that the person has a warrant for his arrest for something serious.

It is tempting to be persuaded by this sort of argument, until you realize that the same argument could then justify permitting the police to randomly kick down the doors of people in public housing apartments and search their bedrooms.  How terrible for the law abiding citizens who are inconvenienced, but think of the guns, drugs that might be discovered, and think of all the fugitives from justices who might be discovered.

There will always be a tension between what would make the most effective way to enforce the laws and how much we value being free from Government intrusion when we are doing nothing wrong and giving no reason to believe we are doing nothing wrong.  The balance of the need to enforce the laws at all costs against the right of a citizen to have a private life free of Government intrusion is an important hallmark of any society.

It certainly isn't an easy line to draw, and our courts are constantly being required to draw that line when the issues make it to Court.  This is difficult enough, no doubt.  I don't envy judges and the tough calls they have to make in this regard.  But as my experience with these trespass cases demonstrates, sometimes, the issues don't even make it to court in any significant way because the practicalities of the situation make it impractical and undesirable for the affected people to litigate.

I suspect that if the police who make many of these trespass arrests employed the same tactics at luxury buildings on Central Park in Manhattan, they would encounter people who would, because of the luxury of their economic situations, have the time and inclination to challenge these tactics more consistently.