Civil Rights, New York

What it means when police turn their backs

(This article was originally published on Fox News Latino.)

Public servants take an oath to protect and uphold the Constitution and laws. From that solemn oath stems a police officer’s duty to serve and protect the public. The Constitution is merely a reflection of the will of the people.

The rule of law also flows out of the Constitution: the democratic order, public institutions, statutes and regulations, policing itself. Law and order exist because as society we have deemed vital to grant a shield, a weapon, and a salary to the men and women tasked with keeping it.

That’s why New York and the country shook when a deranged gunman shot and killed police officers Rafael Ramos and Wenjian Liu. When you threaten the life of a police officer, you threaten the rule of law itself. Everyone feels unprotected.

But we also feel unprotected when police turn their backs. That’s precisely what happened when scores of people in uniform—ostensibly in mourning over Ramos and Liu’s senseless deaths—turned their backs on Mayor Bill de Blasio during the officers’ funerals.

Turning your back on the mayor is not a protest. A real protest is a legitimate part of the social contract, enshrined in the First Amendment right of free speech. Nothing stops an officer from freely expressing himself or criticizing political leaders when off duty, or in private with colleagues and family members.

But when a police officer—in uniform, armed, and bearing a shield that represents us all—stages an act of defiance in public and in front of an official elected by the public, there’s nothing legitimate or democratic about his actions. It’s insubordination. It’s a violation of their oath to protect and uphold the Constitution and laws.

Suppose for a moment that another lunatic with a gun, the kind that kills public officials, would’ve interrupted the ceremonies. Would any of the back-turning officers have bothered to make the ultimate sacrifice and protect the mayor? Would they even have noticed? Anyone worthy to bear the shield of the state stands at attention in time of crisis, not turn his back.

Which is why this spectacle should not be read through the lens of politics or opportunism; it is instead a constitutional problem. What happened in New York should be a cautionary tale for the United States. Is this the kind of force the country wants enforcing its laws, its ideals, its institutions?

The irony of this episode is that it finds its roots in another constitutional issue: the discriminatory application of stop-and-frisk tactics on New Yorkers of color. Last year, a federal court in Manhattan declared the NYPD’s application of such tactics unconstitutional. But police unions attempted to appeal the ruling, arguing in court that compliance with it dealt a blow to police morale and its bargaining rights with the city. A panel of federal appellate judges roundly dismissed those concerns.

It’s a troubling precedent nonetheless—the notion that police reputation and self-interest somehow trumps compliance with the Constitution. That it trumps the will of the people. The same people who put Bill de Blasio in power. The same people who grew weary of stop-and-frisk and simply asked for fairer treatment from those who took an oath to serve and protect them.

If police turning their backs on an elected leader—on the people—doesn’t get us to rethink the kind of men and women we want defending everything we hold dear, then nothing will.

Civil Rights, New York

Dante and democracy

(A version of this post first appeared at Latino Rebels.)

It’s all Dante’s fault.

Were it not for his son, Bill de Blasio would probably not have won New York City’s Democratic primary, let alone the mayoralty. And the mess that boiled over last week between the mayor and the NYPD would’ve never happened.

Dante—or rather, the political ad featuring him—was a hit with New Yorkers because of his massive afro, his likeability, and his message on a controversial police tactic.

“He’s the only one who will end the stop-and-frisk era that unf airly targets people of color,” he said in the ad, echoing his father’s unflinching stance on discriminatory policing.

The ad was a smash because it not only captured de Blasio’s policies within the context of family life, but also because Dante looked like many of the thousands of minority youths who were subject to suspicionless stop-and-frisk tactics during the Michael Bloomberg years. When New Yorkers saw Dante, they saw themselves.

Today, police unions and a subset of the NYPD have gone to war with Bill de Blasio over Dante. They have other grievances, too, but they specifically felt the mayor threw them under the bus when he decided to bring up “the talk”—that uncomfortable but necessary conversation nearly every parent or father figure to a young man of color has had over potential dealings with police.

Dante is “a good young man, a law-abiding young man, who would never think to do anything wrong,” said de Blasio at a news conference following the non-indictment in the case of Eric Garner, the Staten Island man who died in a chokehold banned by NYPD policy.

“And yet,” the mayor said, “because of a history that still hangs over us, the dangers he may face—we’ve had to literally train him, as families have all over this city for decades, in how to take special care in any encounter he has with the police officers who are there to protect him.”

These were not fighting words; they were never meant to be. They were simply a candid acknowledgment of a painful reality for many New Yorkers of color, at a moment they needed to hear their lives mattered—and that leaders, institutions, and the rule of law were not out of touch with their suffering.

The speech was a mere repeat of Dante’s ad message: how to roll in a city where it seems the law somehow treats minorities unfairly. De Blasio merely repackaged it live, raw, and uncut. It was the message that won him a majority of the votes and the mayoralty.

But it hit a raw nerve with police unions. They took de Blasio’s personal narrative and distorted it as an attack on police—a “broad brush” that, in the words of Patrolmen’s Benevolent Association president Patrick Lynch, “laid on the shoulders” of the NYPD the weight of a history of racism.

Of course, de Blasio’s remarks did none of that. He was speaking to his constituents—the same New Yorkers who identified with Dante and are still grappling with the legacy of stop-and-frisk, “broken windows” policing, and a non-indictment that, even to police supporters, seemed unwarranted. That’s what political actors do in times of crisis.

Lynch missed out on all of this, or at least pretended to miss out on it; he’s also a political actor. The big difference is that he’s not beholden to the Constitution or the interests of the public, but to his own and those of the officers he represents. To Lynch, any crisis is an opportunity—to score points, to secure a contract, to win reelection. He’s as much a politician and a public-relations expert as anything else.

And because he’s those two things, Lynch won’t say if he was the one behind a group of rank-and-file officers who turned their backs on de Blasio at officer Rafael Ramos’ funeral. But his specter remains. And it seems his campaign is working: the NYPD appears to have staged a quasi-walkout, refusing to keep law and order “unless absolutely necessary,” whatever that means.

At this juncture, the only question left for New York City as it heads into 2015—and by extension, America—is whether this is the caliber of men and women it wants enforcing its laws. Because police took an oath to defend the Constitution and to serve and protect people like Dante. And voters gave Bill de Blasio a clear mandate to do just that.

If police find democracy so inconvenient that it’s worth turning their backs on it, they’ve renounced their oath. They have no business bearing an arm and a shield given to them by the people.

Civil Rights, Criminal Justice, New York

SNL on pot: Off the mark

Thanks to Saturday Night Live, now everyone is up on New York City’s new marijuana policy. If you missed it, here’s the clip.

Now that was funny.

And legally, it was correct: From now on, merely possessing less than 25 grams of weed in public won’t get you arrested. But it will get you a summons, and you’ll have to take a trip to court and pay a fine.

The last part of the video is also correct: Smoking it in public will land you in lockup.

Treating smoking differently probably makes sense from a public-policy perspective; New York City likely has an interest in keeping the air unobstructed and family-friendly for tourists and visitors.

But there’s a fundamental flaw with the video—a detail that, it turns out, is also a key problem with the new pot policy as a whole: Arrests for possession of small amounts of marijuana is chiefly an issue affecting blacks and Latinos, not well-off New Yorkers residing in gentrified areas of Brooklyn.

In the SNL clip, nearly all of the residents awakening to the “new day” of marijuana policing are affluent, light-skinned men and women residing in beautiful, late-19th-century brownstones. The neighborhood looks a lot like Park Slope or Prospect Heights.

That’s a fiction because that’s not the kind of crowd marijuana enforcement has hit hardest. A report issued by the Drug Policy Alliance last month showed that 86 percent of arrestees for pot between January and August—the Bill de Blasio era—are black and Latino. The rate of arrests for whites in the same period was only 10 percent.

The kicker, though, is that the vast majority of arrestees weren’t flaunting the pot in public; they either had it tucked in their pockets or stashed in their cars or belongings. All of this was legal, even before the new mayor took office.

But because of stop-and-frisk and “clean halls,” which subjected hundreds of thousands of young people of color in poorer neighborhoods to unjustified detentions and patdowns, the pot—like magic—appeared in plain view. And once visible to police, it suddenly became a criminal offense.

This, of course, carried a bevy of consequences: a criminal record, difficulty obtaining employment, loss of public benefits and housing, and no more financial aid to pay for school. None of this had an impact on more affluent white kids, even the unlucky few who did get caught.

Which is why the shift to a summons for possessing marijuana is not necessarily better for minority youth. It’s not better because even paying a fine or missing a day’s work can have untold effects. And worse, who’s to say that the NYPD won’t continue targeting young men of color.

A class-action lawsuit pending in federal court in New York contends exactly that: that police issued in excess of 700,000 summonses without any kind of probable cause, just for the sake of meeting quotas. If a judge rules in the class’s favor, there’ll be more reason to doubt the good intentions behind issuing summons for mere pot possession. As it stands, the summons system is a mess.

With so many lingering questions about the new policy, perhaps it’s time New York underwent true marijuana reform, including fairer policing, a more streamlined summons system, and—why not—decriminalization once and for all.

Until then, New Yorkers of color will have little reason to laugh at a dreadlocked Woody Harrelson carrying a bong in public.

Immigration, New York

City to stop honoring immigration detainers

By a wide margin, New York City lawmakers approved legislation barring the New York City Police Department and the Department of Corrections from honoring federal immigration detainers in most circumstances.

The bills — which replicate similar measures in Los Angeles, Chicago, Philadelphia, Newark, and San Diego — were introduced in response to congressional gridlock over comprehensive overhaul of the country’s immigration system.

“If obstructionists in Congress insist on delaying any federal action on fair and just immigration reform, it falls to municipal governments to pick up the slack,” said City Council Speaker Melissa Mark-Viverito, the lead sponsor of the bills.

Costa Costantinides, a city councilman representing Astoria and co-sponsor of the bills, said current immigration policies “lead to families being broken up.”

The Department of Homeland Security relies on detainers to hold immigrants who come in contact with criminal justice agencies, which then turn them over to federal agents for screening and possible deportation.

Under the new measures, city officials may only comply with the detainers — which instruct local governments to hold persons suspected of violating immigration laws for up to 48 hours — if accompanied by a judge-approved warrant and the person has been convicted for a “violent or serious crime.” The legislation also carves an exception for potential terror suspects.

Mayor Bill de Blasio has said he supports the bills and is expected to sign them into law soon.

In a statement, local Immigration and Customs Enforcement authorities said detainers are only meant to keep “dangerous criminals” out of communities.

“ICE will continue to work cooperatively with law enforcement partners throughout New York as the agency seeks to enforce its priorities through the identification and removal of convicted criminals and other public safety threats,” said ICE spokesperson Luis Martinez in the statement.

One of the bills also eliminates an ICE outpost at Rikers Island — a move councilmember Paul Vallone, who voted against the bills, said “sends a dangerous message.”

City Council Minority Leader Vincent Ignizio, another opponent, worried that “breaking ranks with our federal partners in law enforcement” is not the solution.

More than 900,000 people in New York City were subject to ICE-approved detainers between 2008 and Aug. 31, 2014, according to The Wall Street Journal.

Since Mayor de Blasio took office and Mark-Viverito the helm of the City Council in January, the city has backed measures to make it more immigrant-friendly, like a recently approved municipal-ID program that’s expected to be rolled out in January 2015.

The anti-detainer legislation arrives on the heels of a New York ruling — the first of its kind in the state — that declared illegal for the Department of Correction to hold an immigrant on a federal detainer where there isn’t probable cause or another authority to retain custody.

In that case, Mario Mendoza, 32, was arrested for violating a restraining order. While Mendoza awaited resolution of the case, immigration authorities, believing he was a candidate for deportation, issued a detainer. On Oct. 14, the day Mendoza’s charges were resolved, the Department of Corrections refused to release him, arguing the detainer required them to keep him in custody.

His attorney objected and intervened to have Mendoza released. The judge ruled in Mendoza’s favor and said that his continued detention violated the federal and state constitutions, and ordered his immediate release.

Other courts nationwide have reached similar results, and legal challenges continue in several jurisdictions.

In March, the U.S. Court of Appeals for the Third Circuit sided with a Puerto Rican man who was swept up in a drug raid and held on a detainer by immigration authorities for days. The court ruled that immigration detainers cannot be used to require local and state governments to hold persons suspected of being illegally in the country.

Relying on the Third Circuit’s decision, an Oregon federal court imposed liability on a county government for violating a woman’s Fourth Amendment rights due to an improperly honored detainer. And in late September, an Illinois federal court certified a class action against the Department of Homeland Security for the way it operates its immigration detainer program; that lawsuit is ongoing.

Kamala Harris, the California attorney general, responded to the Oregon ruling by issuing a bulletin to state and local law enforcement warning them of the “legal risk” of mishandling immigration detainers.

As a result of these legal challenges and growth of immigration populations, a number of municipalities are voluntarily ending their cooperation with immigration authorities, fearing lawsuits and potential liability.

Civil Rights, New York

Law and disorder

In many New Yorkers’ minds, the era of stop-and-frisk left with the prior mayor.

The practice was ruled unconstitutional. Bill de Blasio was elected in large part because of his opposition to it. Its use by police has fallen dramatically. Plaintiffs in the federal case reached a settlement with the city.

None of this seems to matter to police unions. Or maybe it matters too much.

Last week, lawyers representing patrolmen, sergeants, and detectives’ unions tried to urge a federal appeals court in Manhattan to let them intervene in settlement negotiations between the city and the plaintiffs—the very method the parties chose to bring about stop-and-frisk reform. Thanks to the unions’ legal maneuverings, the process remains stalled.

The appellate judges hearing their pleas were unimpressed. And largely skeptical.

“Now, who controls the police department?” asked U.S. Circuit Judge Barrington Parker, Jr. at one point. “Is it the PBA—your clients—or the commissioner?”

U.S. Circuit Judge John M. Walker, Jr. cut to the chase: “What do you hope to gain in the appeal? The city has changed its position. The police force has changed its position. The status quo . . . is simply gone.”

This kind of chastisement was nothing new for the unions. In July, U.S. District Judge Analisa Torres issued a 108-page ruling denying their plea to intervene as defendants in the case. She gave short shrift to their arguments that the original decision declaring stop-and-frisk illegal “burdened and bersmirched” the force and its reputation.

Torres wouldn’t have any of it. She ruled that the police unions’ request was untimely, that the unions had no legal “standing” to join the lawsuit, and that they had “no significant protectable interest relating to the subject of the litigation.”

In other words, too little too late. Judges at the appellate level echoed many of Torres’ criticisms.

Perhaps the tensest moment in the two-hour hearing came when Judge Parker brought up the fact that police unions were still without a contract, and that the whole purpose of this after-the-fact intervention was to get a leg up on negotiations with the city.

“You’re using this motion to intervene to try and accumulate chips,” Parker told Joseph A. DiRuzzo, an attorney representing the Detectives’ Endowment Association, the Captains Endowment Association, and the Lieutenants Benevolent Association. “You want to use this proceeding as leverage in your collective bargaining, and I don’t think that’s permissible.”

Parker said that the city is now under a newly appointed police chief and a newly elected City Council, both of which want the NYPD to operate differently.

“That’s the democratic process,” Parker said. “That’s something you have to live with.”

And with that, the same appellate court that last year sent shockwaves through the legal community—such that its transgressions were documented in the Georgetown Journal of Legal Ethics—may have atoned for its sins and given New Yorkers a sense that it just might rule in accordance with the people’s wishes.

Because, in the end, the stop-and-frisk saga was and is all about constitutional rights and democracy. It’s not about the unions’ bargaining rights or the force’s safety, performance, or reputation. Every moment the unions spend arguing it’s about any of those things, they’re opposing the will of the people.

Because it was the people who grew weary of stop and frisk. It was the people who could no longer tolerate further racial profiling and abuse. It was the people who marched, protested, and pressed their elected officials to pass legislation aimed at curbing discriminatory policing. And ultimately, it was the people who voted for de Blasio to settle the years-long litigation and initiate reforms to the NYPD.

All of those reform efforts are for now suspended. And will be for as long as police unions insist on fighting democracy.

Civil Rights, New York

Manhattan appeals court chastises police unions over stop-and-frisk

A federal appeals court in Manhattan grilled lawyers representing police unions attempting to disrupt settlement negotiations following a landmark ruling that held New York City liable for constitutional violations against blacks and Latinos.

Three judges from the U.S. Court of Appeals for the Second Circuit questioned the unions’ motives in seeking intervention so late in the litigation — a move that, in practice, has delayed implementation of reforms to the NYPD’s criticized stop-and-frisk policies.

“Now, who controls the police department?” asked U.S. Circuit Judge Barrington Parker, Jr. at one point during the nearly two-hour-long hearing. “Is it the PBA—your clients—or the commissioner?”

U.S. Circuit Judge John M. Walker, Jr. was more pointed.

“What do you hope to gain in the appeal?” he asked. “The city has changed its position. The police force has changed its position. The status quo . . . is simply gone.”

That status quo was the city’s use of stop-and-frisk, which the U.S. Supreme Court has said is legal if conducted with reasonable suspicion. But for almost a decade, former Mayor Michael Bloomberg and Commissioner Raymond Kelly endorsed the practice and defended it in court, denying that the city applied it in a racially discriminatory manner.

But in August 2013, after a lengthy trial, U.S. District Judge Shira Scheindlin ruled the NYPD’s stop-and-frisk policy unconstitutional. The Bloomberg administration appealed the ruling, but Mayor Bill de Blasio — who won the election due in large part to his opposition to stop-and-frisk — dropped the appeal shortly after he took office. His administration quickly entered into settlement negotiations with the plaintiffs in the case.

Unhappy with the city’s change in position, the police unions got involved, claiming in legal filings that stop-and-frisk reform “burdened and besmirched” the force and its reputation.

In July, U.S. District Judge Analisa Torres, in a 108-page decision, roundly denied the unions’ claims. She ruled that the police unions’ request was untimely, that the unions had no legal “standing” to join the lawsuit, and that they had “no significant protectable interest relating to the subject of the litigation.”

The judges at Wednesday’s hearing echoed many of Torres’ criticisms, and forcefully brought the unions to task for using the legal process to get a leg up in contract negotiations with the city.

“You’re using this motion to intervene to try and accumulate chips,” Parker told Joseph A. DiRuzzo, an attorney representing the Detectives’ Endowment Association, the Captains Endowment Association, and the Lieutenants Benevolent Association. “You want to use this proceeding as leverage in your collective bargaining, and I don’t think that’s permissible.”

Parker said that, as a result of last year’s election, the city was now under a newly appointed police chief and a newly elected City Council, and that both wanted the NYPD to operate differently.

“That’s the democratic process,” Parker said. “That’s something you have to live with.”

Despite the appellate court’s skepticism to the unions’ arguments, this same three-judge panel — which also includes U.S. Circuit Judge José Cabranes — sent shockwaves through the legal community last year when it removed Judge Scheindlin from the stop-and-frisk proceedings, stating she had “ran afoul” of judicial code-of-ethics provisions by virtue of some interviews she gave in the media and other procedural considerations.

That order, which halted implementation of Scheindlin’s order pending appeal, was roundly criticized by legal experts and court observers, some of whom accused the court of inserting itself in New York City’s mayoral election. The court, apparently in response to the outcry, later back-tracked and issued a new opinion clarifying that Scheindlin had not engaged in misconduct, but stood by its decision to keep her off the case. The bizarre turn of events inspired an article in the Georgetown Journal of Legal Ethics.

A ruling on the police unions’ motion to intervene is expected later this year.

Civil Rights, Criminal Justice, New York

De Blasio’s perfect storm

Mayor Bill de Blasio won’t get a break. This week could be characterized as his worst since he took office.

Not because he did something wrong or didn’t do enough, but because his campaign banner, the civil rights of New Yorkers, has been trampled by a number of perfectly timed events.

The main one of all is the ongoing case of Eric Garner, the Staten Island man who died after a police officer applied a chokehold on him. The case is as white-hot as ever.

The Rev. Al Sharpton isn’t pleased. Police unions aren’t pleased. The Garner family is asking for justice. The young man who recorded the video, Ramsey Orta, and his wife, Chrissie Ortiz, were both arrested in separate incidents. The case is a media relations mess.

De Blasio, for his part, hasn’t said much.

Two reports that came to light on Monday did have much to say. The first one has to do with the NYPD’s controversial “broken windows” program, which targets minor offenses in hopes of deterring major crimes.

The findings of the report, published by the Daily News with the help of the New York Civil Liberties Union, revealed that the policy largely affects blacks and Latinos. Of the 7.3 million people who were cited or sanctioned for violations between 2001 and 2013, around 81 percent were minority residents.

Bill Bratton, the city police chief, has defended the practice. He himself implemented in 1990 when he headed the New York City Transit Authority, and later expanded it as commissioner under Rudy Giuliani. De Blasio has backed Bratton. And Sharpton, not to be outdone, has opposed both: he’s planning a march across the Verrazano Bridge to express his disapproval.

The other report was issued by the office of Preet Bharara, the Manhattan federal prosecutor. Bharara and his team investigated widespread abuses suffered by minors while in confinement at Rikers Island. Among the most egregious findings: Excessive use of force by guards; hundreds of youth treated for serious injuries; disproportionate use of solitary confinement; and lack of adequate supervision and resources to work with and tend to the needs of youth, many of whom suffer mental illness.

In other words, there is no rest for de Blasio in terms of civil-rights problems.

So far the mayor has received praise for how he handled the closing of the landmark stop-and-frisk and Central Park Five cases. But those were inherited conflicts. How he handles these new crises could very well end up defining the de Blasio era.

(A version of this column was originally published in Spanish in the print and online editions of New York’s El Diario.)