No Law, All Order: The NYPD Can Arrest AND Prosecute You

Anyone who has killed a few hours (or an entire weekend) watching Law & Order knows that “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders.”

But two women who were issued summonses during a Black Lives Matter protest in March are finding a different arrangement: It was the NYPD who summonsed them, and it is the NYPD, not the Manhattan DA’s office, that is prosecuting them.

Arminta Jeffryes, 23, was picked up by police on East Houston during a protest march on March 7, detained several hours, and released with a summons for jaywalking. Cristina Winsor, 39, received a summons the same night on East 12th, after police said she stepped off the sidewalk and into the street.

The women challenged the arrangement under which they were prosecuted by police lawyers, arguing that giving the NYPD control over prosecutions is illegal. For one thing, they say, where the district attorney’s only job is to seek justice, NYPD lawyers have a conflict of interest: They are both acting as prosecutors and representing their client, the police department. That’s a problem, they contend. If police make an illegal arrest or summons, a common remedy is for the person improperly arrested or summonsed to sue the police.

That happens, let us say, quite a bit: In the last five years, the city has paid out more than $837 million in lawsuits against the police. In the cases of Jeffryes and Winsor, the NYPD lawyers are offering to conditionally dismiss their charges, but only if they admit that the NYPD acted properly in summonsing them, effectively precluding them from filing civil suits against the police later.

If you’re both the prosecutor and the NYPD’s lawyer, you can use your power over criminal defendants to dissuade them from suing your client. But the conflict is even more stark than that, points out Gideon Oliver, Winsor’s lawyer (and, full disclosure, a personal friend).

“In many protest situations, NYPD Legal Bureau lawyers are actually out with the police officers at the scene, helping to figure out what crimes to charge people with,” Oliver says. “So you have police lawyers prosecuting cases that police lawyers have had a direct hand in bringing.” In cases like this, then, the police lawyers acting as prosecutors may not just be protecting their client from a civil suit, they could be protecting themselves.

The Manhattan District Attorney’s Office says there’s nothing wrong with this arrangement, and points to a February Memorandum of Understanding between the Manhattan D.A. and the police, which allows the NYPD’s lawyers to act as prosecutors in cases of their choosing in summons court. The D.A.’s office maintains it doesn’t have adequate staff to appear in summons court, and cites a practice common in more remote upstate towns allowing District Attorneys to delegate prosecution responsibilities to local lawyers.

Vance’s office also says that while offering Jeffryes and Winsor the deal for dismissal might prevent them from suing, that’s not the only reason police lawyers might make that demand of the protesters. It could also strengthen the cases against them if for some reason their cases come back to criminal court. Besides, prosecutors argue, courts have seen no problem with upstate prosecutors handing their cases off to town attorneys and sheriffs, who presumably might have similar fears of lawsuits.

Lawyers for Jeffryes and Winsor say the only summons cases the NYPD has chosen to prosecute are against people who were engaged in Black Lives Matter protests, and neither the NYPD nor the district attorney have denied that claim in their court filings. There is a record of which cases the NYPD assumes responsibility for: The Memorandum of Understanding requires the police to send the D.A. monthly reports.

But when the Voice asked Cy Vance’s office to see those reports, a spokesperson demurred, instead directing us to the NYPD. And when we asked the NYPD for those reports, they didn’t give them to us. If the NYPD isn’t selectively prosecuting cases against people because they’re exercising their First Amendment rights, neither of them are doing a good job of proving otherwise.

Selectively prosecuting only those jaywalkers who are involved in protest, Jeffryes and Winsor argue, is a violation of the equal protection clause, which requires the law to be applied to everyone equally. The office of the district attorney didn’t address this issue in its court filings.

Yesterday, Manhattan Criminal Court Judge Guy Mitchell ruled against Jeffryes and Winsor, finding that the D.A.’s arrangement with the NYPD’s lawyers is lawful. Martin Stolar, the lawyer representing Jeffryes, says he is considering filing a petition to challenge the judge’s ruling. The two defendants will go to trial for their jaywalking violations November 7. Stolar says he’s looking forward to the trial.

“The person who signed Arminta’s summons is a captain,” Stolar said. “I look forward to getting him on the witness stand, asking how often he, as a captain, issues summons for jaywalking, and how it came to be that she was held for five hours and then issued a summons for jaywalking. Things like that don’t usually happen. One might think she was singled out, because she’s an organizer.”