If you were the in-house counsel for an outfit that was hemorrhaging hundreds of millions of dollars a year paying out lawsuits over the way it conducted business, you’d be looking for ways to stop the bleeding. On the one hand, you might advise your executives that they needed to reexamine their approach, and to avoid doing the things that made people want to sue them in the first place. Or you could figure there will always be disgruntled customers, and set about devising legal tricks to keep them from suing.
This was precisely the choice that faced the New York Police Department’s Legal Bureau. New York City paid out more than $837 million in lawsuits over the past five years, and the trend is going in the wrong direction — payouts for the last fiscal year were up 74 percent over 2012. To cut down on the settlements (if not the alleged civil rights abuses that give rise to them), 1 Police Plaza’s legal organ brokered a deal with the New York district attorney’s office to head off the suits before they ever got to civil court: Since 2015, the D.A. has allowed NYPD lawyers to act as prosecutors in summons court. The police, in turn, started using this power to coerce defendants into signing papers that would make it very hard to sue the police. Before this new regime, a protester arrested for jaywalking during a protest would likely have had her case dismissed if she stayed out of trouble for six months. If the arrest was improper and unconstitutional, she might decide to file a civil suit against the police. But now, when a protester comes in to summons court on a jaywalking charge, police lawyers could tell her that if she wants the case to go away, she’ll have to first sign a paper saying that she was, in fact, crossing against the light. Presto! Potential wrongful- arrest lawsuit nipped in the bud.
The question of whether this arrangement is lawful and constitutional is the subject of an unfolding legal battle. Arminta Jeffryes, a prominent organizer of Black Lives Matter demonstrations, was arrested while crossing Houston Street during a March protest. She was handcuffed, held for five hours, and charged with crossing against a don’t-walk sign. Cristina Winsor was arrested elsewhere on the same march and charged with walking in the roadway when a sidewalk was available, as well as disorderly conduct. When the two showed up in summons court the next month, police lawyers told them if they wanted their cases adjourned and dismissed, they’d first need to confess that they’d done something illegal. They declined and took their cases to trial.
This fall, they argued in court that the police department can’t also be a prosecutor; there’s a reason those are two different jobs. Prosecutors work for the people of New York and swear an oath to see justice done. Police lawyers have a duty to protect their client, the police department. NYPD lawyers can’t serve both masters, and their effort to use prosecutorial powers to compel defendants to sign away their ability to sue the department for constitutional abuses proves it. (Police lawyers deny that they ask for the signed statements to protect the police from civil suits, arguing that the statements could be useful in prosecuting defendants should their case come back to court. Whether they’d be allowed to use the statements in this way is dubious; Judge Stephen Antignani, who’s hearing the criminal case, said last week he wouldn’t permit it.)
At first glance, the problem may appear meager. When the Voice filed Freedom of Information requests for the monthly reports the NYPD is required to file on its prosecutions, what we got back, though heavily redacted, suggested the police are hardly making a dent in the summons court caseload. Police lawyers prosecuted all of seven cases through October of this year, according to the reports, including three in May. That’s not the whole story, though, says Sam Cohen, who represented a fourth protester whom NYPD lawyers sought to prosecute in summons court that month. While the NYPD didn’t wind up prosecuting the case when it went to trial, police lawyers did make arguments before the judge, and the judge’s ruling ultimately gave the police what they wanted: a deal that required the defendant to sign away any claim that they were wrongfully arrested.
“Conditioning dismissal on a waiver of civil remedies is highly irregular,” Cohen says. “It’s something the police have been demanding for a while, but it’s the first time I’d seen a judge do that.”
And though the NYPD may not be prosecuting many cases, Jeffryes and Winsor argue that the selective deployment of prosecutorial power is itself cause for concern, claiming a disproportionate use against those exercising their First Amendment rights to free speech and assembly. The reports suggest that was true until at least September (well into the litigation of their cases), when police prosecuted several people for unlicensed vending in a park. NYPD attorney Katherine Triffon told the court last week that her colleagues are also trying to prosecute public urination and open-container violations, but that because those cases appear with little advance notice, it can be hard to show up in court on time. The NYPD and Manhattan district attorney did not respond to requests for comment.
In September, a criminal court judge ruled that there’s no problem with police acting as prosecutor in the activists’ cases. Jeffryes and Winsor appealed that finding to another judge, who will hear their arguments on January 11. Police lawyers sought to proceed with their criminal trial in the meantime, but at a hearing last week, Antignani instead postponed the matter. As the case draws further public scrutiny, the district attorney has issued a second memo to the police containing new “guidelines” for prosecution, asking the department to “consider” several factors when deciding whether to prosecute: whether the defendant has been charged before; whether there’s any evidence beyond an officer’s testimony; and whether there have been complaints from the public, business owners, or elected officials about the conduct in question. But the memo is carefully phrased so as not to preclude anything the NYPD might want to do for its own reasons. “These are guidelines only,” the memo states. “The [Police] Department may exercise its authority in a case even if none of these factors is present.”
In February, after news of this arrangement had started to make waves, the NYPD and district attorney formalized the deal with a memorandum of understanding.