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 goes…one 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.”