New York

Protesters Sue to Stop NYPD from Acting as Prosecutors

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As we described in September, the prosecution of a couple of Black Lives Matter protesters is shining a light on a controversial deal between the Manhattan District Attorney’s office and the NYPD, in which lawyers for the police department are authorized to act as prosecutors in summons court in certain cases.

Today, those protesters who found themselves being prosecuted by the same police department that arrested them, Armynta Jeffryes and Cristina Winsor, filed suit against Manhattan DA Cy Vance Jr., the NYPD, the City of New York, and, for technical reasons, the judge who had previously ruled that this agreement to let cops act as prosecutors was perfectly fine. The suit comes in the form of an Article 78 petition, seeking to overturn the judge’s conclusion before proceeding with the case.

The NYPD is supposed to file reports with the District Attorney’s office under the terms of their arrangement. Press offices for the Manhattan DA and the NYPD refused to provide them to the Voice . We filed a Freedom of Information Request with both offices, and were told that the DA is prepared to provide us with redacted reports covering December of last lear as well as May, June, July, August and September of this year. According to the DA’s office, police lawyers report prosecuting six people in December and three in May. Two of those cases, presumably, are Jeffryes and Winsor.

The evidently low volume of cases in which the NYPD sees fit to act as a prosecutor raises the question of what it is about these few cases that catches police lawyers’ attention enough to make them want to put on their prosecutor hats. (We’ve asked the NYPD this question, and will update if we get a response.) But Jeffryes and Winsor have a theory, and it’s a disturbing one. In their complaint filed today, they allege that the NYPD is specifically choosing to protest summons cases involving protesters in order to coerce them into concessions that will keep them from suing the police later over illegal arrests.

The police department essentially admits as much: “NYPD brass” told the Daily News in January that “too many cases involving people they consider professional protesters are dismissed in summons court, paving the way for a civil lawsuit and settlement with the city.” This might be good for the city’s bottom line — New York paid out $835 million in the last five years in lawsuits against the police — but it doesn’t look so good from a justice perspective. Police lawyers have an ethical obligation to represent the interests of the police department in not getting sued, but that’s a very different brief from that of a prosecutor: seeing justice done.

Historically, protesters in summons court were offered an ACD — an adjournment in contemplation of dismissal, basically a promise to drop the case provided they didn’t get into trouble in the next six months. Jeffryes and Winsor allege that the new police M.O. is to only offer ACDs if the protesters will agree that their arrests were correctly and lawfully conducted — effectively precluding the ability to sue the cops over a bad arrest.

Jeffryes and Winsor say New York case law is on their side. They cite a 1980 ruling that held prosecutors were wrong to tell defendants they’d have to admit police had probable cause to arrest them if they wanted an ACD.

“The practical consequences of the waiver, if effective, fall outside the ambit of the prosecutor’s responsibility in the criminal justice process,” the court ruled. “The District Attorney is a quasi-judicial officer whose chief function it is to see that the laws of the State are faithfully executed and enforced. Representation of the civil interests of the police plays no part in the performance of these duties.”

With their suit, Jeffryes and Winsor are seeking to get a New York Supreme Court judge to overturn the lower judge’s ruling and to issue a declaratory judgment that the practice of letting police act as prosecutors in the cases of their choosing is unlawful. The NYPD and District Attorney have several weeks to respond to the new suit. In the meantime, Jeffryes and Winsor will be going up against a police lawyer acting as prosecutor on Monday, when their summons trials begin.