The NYPD’s failure to cease enforcement of loitering laws held unconstitutional many years ago has led a federal district judge to hold New York City in contempt of court, in a case involving the arrests of thousands of gay men.
In an April 26 opinion dripping with outrage, Judge Shira Scheindlin concluded that “the City’s obstinance and uncooperativeness throughout the present actions is offensive to the rule of law.”
In a key passage in her opinion, the judge wrote, “The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system. More disturbing still, it appears that the laws — which target panhandling, remaining in a bus or train station, and ‘cruising’ for sex — have been enforced particularly against the poor and gay men.”
In 1983, Lambda Legal, an LGBT rights public interest law firm, scored a major early triumph for the gay community when it persuaded the state’s highest bench, the Court of Appeals, to strike down the “loitering for sex” statute that police across the state used to arrest men who sought sexual companions in public spaces.
The court held that since it had recently declared the sodomy law unconstitutional, the state could no longer penalize the act of asking another person to engage in the now-legal conduct, although actually having sex in a public place remained criminal.
But somehow the word did not get out to the NYPD, which continued to charge men with violations of the statute as often as before — for activity that is now legal.
While many of those cases were dismissed by the courts, those arrested still endured the indignity of being detained, booked, charged, held in jail, brought into court, and saddled with an arrest record. Somehow, the fact that most of these cases were dismissed on grounds that the law was unconstitutional made no significant impression on the NYPD, whose commanders made no systematic effort to restrain their forces.
This error was compounded as other provisions of the loitering law were subsequently struck down without making any significant dent in the NYPD’s enforcement activities. In 1988, the Court of Appeals invalidated a provision making it a crime to “loiter” or sleep in a train or bus station if the individual was “unable to give a satisfactory explanation for his presence” to a police officer, and in 1992, the federal district court enjoined enforcement of a provision making a person guilty of a crime when he “loiters, remains or wanders about in a public place for the purpose of begging.”
It seemed to matter not a whit to city law enforcement that they no longer had a legal basis to arrest people for violating these stricken laws. They just kept at it.
Finally, people got so fed up that lawsuits were filed, ultimately consolidated in a pair of class actions before Scheindlin in Manhattan’s US District Court. The statistics were startling. Tens of thousands of people had been arrested and charged with violations of these laws since they were declared invalid. The city’s defense to these lawsuits was to argue that it was doing all it could to get the police to understand the changes in the law but, as Scheindlin found, effective steps were never taken until the threat of a successful lawsuit with the possibility of injunctions and fines emerged.
The problem was made worse by a dysfunctional State Legislature, which ignored the court decisions and failed to revise the Penal Law, so the printed materials distributed to the police containing the texts and summaries of criminal statutes continued to list these invalid loitering provisions.
During the course of this lawsuit, it came out that police officers routinely prepare “cheat sheets” that they carry with them on patrol, listing the penal provisions with short descriptions, to which they refer when they do the paperwork on their arrests. Even though the city made an effort to have the unconstitutional provisions crossed out in dark ink in the copies of the Penal Law kept in police stations, this action was ineffective because the “cheat sheets” remained the same, so the police kept charging the offenses. And, implementation of the citywide orders to revise the manuals was uneven as well.
A review in October 2009 found that numerous precinct houses had not yet complied with a directive issued almost a year and half earlier, and discovery turned up thousands of “cheat sheets” that continued to list the stricken laws.
Under further prodding from the court, the NYPD began incorporating information about the invalidation of the laws in its training and bulletins distributed to the force, and reluctantly began to impose discipline on officers who continued to arrest and charge people under these provisions.
Only relatively recently, however, was the Internal Affairs Bureau tasked to investigate and take disciplinary action, a step characterized in deposition testimony as finally signaling to the police that this was a serious matter. Under the most recent policy, officers who continue to charge people with these offenses can lose a day of vacation time for each invalid charge.
Still, the problem has not been totally eliminated, although the number of charges has dropped sharply in recent years. Hundreds of people were being charged annually under these invalid provisions just a few years ago. Though the most recent data show that the improper arrests have dropped, they are still going on, with evidence of them continuing into the early months of this year. Between May 2008 and February 2010, 125 unlawful summonses were issued under the sexual loitering provision, mainly against gay men.
Scheindlin, who had initially resisted the plaintiffs’ request that the city be held in contempt and placed under an injunction, finally lost her patience. In response to the city’s claim that it was making “reasonably diligent” efforts to get the NYPD to comply with the court’s order, Scheindlin termed that “characterization” an “overstatement.” The city listed a myriad of steps it claimed to have taken, but Scheindlin found that “this catalog of the actions taken by the City masks and obscures the City’s generally lethargic approach to compliance with the Orders. Nearly every measure that the City has undertaken has been at the direction of the Court, the prodding of plaintiffs, and/or under the threat of sanctions.”
Indeed, she pointed out, it wasn’t until after a May 2009 conference on the case “wherein the Court raised the specter of contempt proceedings, that [Police] Commissioner [Raymond] Kelly advocated repeal of the Statutes” in Albany.
The judge noted that the city had “narrowly escaped sanctions” in 2007, when it promised the court that it would diligently address the problem, a pledge she concluded had not been kept.
“In the years since the City was ordered to stop enforcing the Statutes,” she wrote, “the City appears to have made little effort to understand and address the mechanisms underlying continued enforcement of the Statutes. Only when threatened with sanctions in September 2009 did the City begin to act with reasonable energy and diligence toward the desired goal. But where such a last minute frenzy was key to the avoidance of contempt in 2007, this time, it’s too little, too late.”
The judge’s April 26 opinion does not pile on with an injunction against the city, but does hold it in contempt and establishes a schedule of fines that will be applied to future improper arrests and charges. After a six-month period for the city to bring itself into full compliance with the court’s orders, fines of $500 per incident of wrongful enforcement will be assessed for the following three months, increasing in $500 increments every 90 days thereafter until a maximum penalty of $5,000 per incident is reached.
Even if the NYPD gets its act together sufficiently to avoid major fines under the judge’s scheme, the city does not walk away from this case unscathed by financial liability. Scheindlin found that it negligently failed to preserve relevant evidence in this case and concluded that the missing data would have supported the plaintiffs’ case. She found it appropriate to award attorneys’ fees and costs to the plaintiffs, in an amount to be determined when the lawyers submit their fee application.
Considering that the case has dragged on for years due to the city’s stonewalling on discovery requests and its ongoing failure to live up to its promises to comply with court orders, the fee award should be substantial, likely into the millions.
Scheindlin denied the plaintiffs’ request for an injunction “without prejudice,” meaning they can come back and ask again if the city persists in its failure to eliminate these inappropriate arrests. Such an injunction would be a stark statement of the court’s lack of faith in the city’s commitment to play by the rules.