Gotham Gazette

The Place for New York Policy and politics

Criminal Justice

Criminal Justice

A Tougher Policy on Protest


Photo of police officers in riot helmets

Photograph (c) 2005 Frank Lynch

 

Mayor Michael Bloomberg and Police Commissioner Ray Kelly have never expressed the slightest doubt over the police's handling of the protests at the 2004 Republican National Convention in New York City. "The Republican National Convention was perhaps the finest hour in the history of the New York City Department," Kelly has said.

The courts, though, have been less enthusiastic. Few cases have ended in conviction, and the city has had to pay out hundreds of thousands of dollars in damages with hundreds of additional cases pending.

The arrests at the convention represent only the most obvious sign of the city's increasingly tough line on protest. In the past several years, the city has denied permits, arrested protestors and stepped up its surveillance on political dissidents. While the policy comes from on high, police officials have had to defend and explain it, while individual cops have had to enforce it.

Some find the administration's stance hard to fathom. "This is a level-headed police department lead by a level-headed headed police commissioner. What in the world are they doing?" one civil liberties lawyer, Jethro Eisenstein, has said.

What they are doing, Bloomberg and Kelly would argue, is fighting terrorism. "We live in a more dangerous, constantly changing world, " Kelly has said in calling for more police powers to monitor anti-war activists, like alternative transportation advocates and Billionaires for Bush.

Giuliani and Bloomberg

Like their counterparts elsewhere in the nation, for much of their history the New York City police have taken a dim view of protest. Following what many saw as police abuses during the 1960s and 1970s, the courts and city officials put restrictions on police surveillance of political activity and on police conduct at protests. Dissenting political activity seemed, if not welcome, certainly tolerated.

But the official tolerance of protest faded during the Giuliani administration. Mayor Rudolph Giuliani limited access to City Hall plaza for press conferences and protests and restricted the movements of marchers at the 1998 "Million Youth March" in Harlem, where police confined protestors in pens, then stormed the stage to end the rally and buzzed the crowd with helicopters.

Time and time again, the courts stepped in to stop the administration from playing it fast and loose with the Constitution. Norman Siegel, a lawyer, later said he brought about 27 challenges against the Giuliani administration on First Amendment issues and won virtually all of them.

Related Articles

Policing the Police
The number of complaints against the police is on the rise, and critics charge the department and the civilian agency that monitors it do not do enough to stop the abuses.

The Failure of Civilian Oversight
The former executive director of the Civilian Complaint Review Board argues that the agency is not doing the job New Yorkers need it to do.

Stop and Frisk
Police stopped and searched more than half a million New Yorkers in 2006, making the procedure as common in some communities as brushing one's teeth.

A Police Shortage
A police presence prevents crime, writes the head of the City Council Public Safety Committee, so we cannot afford to loose officers.

The hardline stand continued into the Bloomberg administration, exacerbated by security concerns after the terror attacks of September 11, 2001. "The Bloomberg administration is less forgiving of dissent than the Giuliani administration, and I never thought I'd say that," Dan Perez, a lawyer who has represented protestors, said in 2004.

As people throughout the world prepared to protest the war in Iraq on Feb. 15, 2003, the police department, citing security concerns, denied New York demonstrators a permit to march by the United Nations. Instead, police directed demonstrators to block-long pens created with barricades. More than 250 people were arrested, many for trying to get to the rally. Others tried to leave but were prevented from doing so.

"The NYPD crackdown on peaceful protest that happened at the anti-war protests [in 2003] cannot be repeated at the convention," Christopher Dunn, associate legal director of the New York Civil Liberties Union, said at the time.

The GOP Convention

The Republican convention in New York City - the first one ever held in the city - brought out memories of the Democratic convention in Chicago in 1968, when the whole world watched police clash with and beat protestors on that city's streets. Clearly it was not a scene Mayor Michael Bloomberg wanted repeated - either for what it would do to the city's image or to the re-election prospects of President George W. Bush, who the mayor then supported. Law enforcement officials and others also feared the convention, attended by a who's who of GOP leaders, would provide a target for terrorists.

"The threat of terrorism is just about paramount in all of our thinking for all of these events," Chief of Department Joseph Esposito told reporters before the convention. "We'd have to be out of our minds not to have that as the paramount concern."

In response, the city strictly regulated access to the area around Madison Square Garden. It refused to allow a mass rally in Central Park the day before the opening gavel, saying the thousands of protesters, unlike, say, thousands of concert goers, would ruin the lawn. It set aside a pier to hold anyone arrested and mobilized all its resources.

Police arrested about 2,000 people during the convention. In one day - Aug. 31, 2004 - they rounded up about 1,100 protesters. Rather than being issued summonses and promptly released, hundreds were fingerprinted and detained for more than a day.

In some sense, the operation could be seen as a success. The events in New York in 2004 did not produce film footage like that from Chicago in 1968, nor did terrorists strike.

Demonstrators, their lawyers, journalists and others, however, quickly challenged the idea of the police operation as an unmitigated success. Eyewitness accounts, many backed up by videotapes, disputed police accounts of what happened on Manhattan streets. In the eight months following the convention, as many as 400 demonstrators had their cases dismissed as videotapes showed either that they had not committed the crime of which they were accused or that there was insufficient evidence of their guilt. As of this August, the city faced 605 lawsuits sparked from the arrests. It already had to settle 35 cases for a total price tag of $694,000.

The New York Civil Liberties Union filed suit, challenging three aspects of the city’s convention strategy: the mass arrests; the no summons policy, which resulted in the detention of many of those arrested; and the blanket fingerprinting. The city, according to Dunn, has already backed down on the fingerprinting, having said it destroyed the records. Now, the plaintiffs in the case await the release of thousands of pages of police department surveillance records. The federal courts have ordered their release, but the city has been slow to comply.

 

Protests on Wheels

 

While there haven't been demonstrations to rival the size of the RNC convention's in the past three years, the police have clashed repeatedly with Critical Mass, a monthly group bicycle ride. The city has sought to limit the ride, targeting cyclists and confiscating bikes. In the two years after the city first decided to crack down on Critical Mass - the impetus for the tough policy was apparently the GOP convention - it spent $1.3 million to suppress the activity, according to Times Up!, an environmental group associated with Critical Mass.

When judges expressed doubts over the city's strategy, the administration sought to change the rules on mass gatherings -- with Critical Mass in mind. After its first proposal was widely assailed for being so strict it might make it difficult for a group of friends to walk down the street, the city issued a new version, requiring any group of 50 or more people to get a permit before gathering. A judge ruled the city can use the rules to regulate Critical Mass - and they have. At the June ride, police arrested and handcuffed 15 cyclists. They were released quickly and received tickets, perhaps indicating that tensions between the city and the cyclists were abating.

Watching the Opposition

During the anti war and other protests of the 1960s and '70s, people organizing any kind of protest activity took it for granted that the police had an eye on them. At some demonstrations, protestors would even call out to those they believed to be undercover cops - the shoes were widely believed to be the giveaway.

That changed in the 1980s, though. In response to a class action suit, a judge set up a series of strict guidelines – known popularly as Handschu after the lead plaintiff – governing police oversight of political activity. In particular, police could not investigate political groups without “specific information” that they were planning a crime. These restrictions remained intact for decades, much to the irritation of some officers.

The terrorist attacks of September 11, 2001, provided the department with an opportunity to try to have the guidelines changed. In 2003, Federal Judge Charles Haight ruled that terrorism presented "dangers sufficient to outweigh any First Amendment cost." In response, Jim Dwyer of the Times reported in December 2005, police spied on people "protesting the Iraq war, bicycle riders taking part in mass rallies and even mourners at a street vigil for a cyclist killed in an accident." To mask their true identities, the police not only watched the events but participated in them, in some cases, protestors have charged, provoking trouble.

In February, Haight appeared to reverse himself, ruling that, once again, the police could not videotape people at a political event unless they seemed likely to break the law. Zeroing in on two events in 2005 — a march in Harlem and a demonstration by homeless people in front of Bloomberg's Upper East Side home — the judge said the city had little justification for taping the protests. There was, he said, “no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens.”

A few months, later, though, the judge changed direction again deciding that the people at the two protests may have been candidates for videotaping after all. New information, he said, indicated the demonstrations might have become “unruly.”

For its part, the Police Department considers surveillance a useful tactic and undoubtedly hopes the judge does not change his mind again. In memos involving a 2002 incident revealed under a court order and reported in the New York Times, police officials discussed how “proactive arrests” and surveillance helped avoid problems at a gathering of the World Economic Forum in the city in 2002. Paul Brown, deputy commissioner for public informatin, said that the event attracted “hard-core violent elements that were surveilled by the NYPD. Yes, we used surveillance techniques to track and hopefully disrupt violent elements. That’s proactive.”

Given that Handschu has been in the courts since 1971, it will no doubt remain there, subject to future twists and turns. The legal tug of war between the police and demonstrators and civil libertarians on an array of issues seems unlikely to end any time soon.

Dunn of the civil liberties union said his organization wants to ensure the city cannot repeat the tactics they used at the GOP convention. “The whole point of our case it to make sure the department doesn’t use these policies again,” he said.

The department under Bloomberg and Kelly shows little sign of backing down, though. Looking back on the events of 2004, Kelly recalled in a television interview that thousands of protesters came to New York City. In meeting up with the New York City Police Department, he said, “they met their match.”  

Stop and Frisk -- Who's Being Searched?


In minority communities across the city being stopped and frisked has become routine, according to some community leaders. "It's almost like brushing your teeth in the morning, because in our community you never know when you're going to get stopped," said Ken Cohen, director of the Metropolitan Council of NAACP Branches in New York City.

Cohen and others regularly offer advice on how to respond when halted and patted down. They tell young people to follow directions and remain nonconfrontational, even if it means disregarding their right to ask for the officer's name or badge number.

"We've found that when you do ask, that only infuriates the officers and makes things worse," said Cohen. "Things can get quickly out of control if [officers] feel like they're not in control or if you're asking too many questions."

Police released statistics earlier this year showing the amount of stops conducted by police increased five-fold in from 2001 to 2006. The police patted down someone on the streets of the city half a million times last year. Some experts credit the practice for the drastic reduction of crime in the city. Many community activists and civil liberties advocates, though, claim stop and frisk is an example of racial profiling, since the vast majority of stops are black or Latino.

The stop and frisk debate was fueled earlier this year when the New York Civil Liberties Union learned that the Police Department was compiling a vast database of all the individuals who had been stopped and that more than 86 percent were black or Hispanic in 2006. The debate now not only concerns the stops themselves but the records of those stops and what information on the police department should have to provide to the public.

That has shoved the practice back in the city's center stage, resulted in a Freedom of Information Law Request by the civil liberties union and an independent analysis of the data due out any day.

Getting the Data

The department is expected to hand over its stop and frisk data to the City Council every quarter. It released data in 2002 and not again until 2006. The huge increase over that period fueled suspicions of the practice and concerns from City Council and civil libertarians about what information was not being made available.

The City Council stepped up its demands for access to the department's electronic database. The civil liberties union has followed the council's lead by filing the Freedom of Information Law request. That request is still pending.

Stop and frisk data from 2003 through 2006 is currently being processed by a private vendor, a spokesman for the Police Department said, because its collection predated the electronic system currently used. The police department also contends the data correlates with descriptions of race given by victims and witnesses.

The department did not give even all of its 2006 data to council. While it hand delivered raw data to the City Council, it did not provide its electronic database, which, according to the civil liberties union, details reasons for each individual stop. That database, advocates said, could also provide the council with greater ability to conduct oversight.

Related Articles

Policing the Police
The number of complaints against the police is on the rise, and critics charge the department and the civilian agency that monitors it do not do enough to stop the abuses.

The Failure of Civilian Oversight
The former executive director of the Civilian Complaint Review Board argues that the agency is not doing the job New Yorkers need it to do.

Up Against the Constitution
The police department considers its handling of protests at the 2004 Republican convention a major success, but the courts do not seem to agree.

A Police Shortage
A police presence prevents crime, writes the head of the City Council Public Safety Committee, so we cannot afford to loose officers.

The City Council stepped up its demands for access to the department's electronic database. The civil liberties union has followed the council's lead by filing the Freedom of Information Law request. That request is still pending.

Councilmember Peter Vallone, who is also chair of the council's public safety committee, said, "The best way to prove or dispel these concerns is to operate in the daylight." The negotiations over the database, Vallone said, are "at the highest level" - between the City Council Speaker Christine Quinn and Mayor Michael Bloomberg. (For an artilce by Vallone on the police, see "A Dwindling Police Presence.")

While the NYPD has been reticent to release the database to the City Council, the department has turned it over to the RAND Corporation for an independent analysis into whether the department was using race as a factor in stop and frisk instances.

Announcing the partnership in February, Police Commissioner Raymond Kelly said in a press release, "While the police department's analysis of the data in general terms showed that stops were consistent with concentrations of crime and of victim descriptions of suspects, we've asked RAND...to make an in-depth inquiry to determine whether there are any flaws that we may need to address."

The onset of an independent investigation into the data has not stopped calls for further transparency. "The private company asked to do a study of these statistics is using the raw data that the City Council doesn't have," Vallone said. "Clearly without access to the same information, we won't be able to verify their conclusions or in fact do as in-depth a study."

Chris Dunn, legislative director for the New York Civil Liberties Union said an independent analysis was important to police accountability.

"There's been a lot of evidence to suggest that race is playing a big role in people getting stopped in stop and frisks," he said. "That's an important policy issue, but there needs to be a more serious analysis of the data to confirm that."

Dunn fears that RAND's exclusive access to the data will result in a one-sided analysis. He said by not widely releasing the stop and frisk records, it appears that the department has something to hide. "I don't think there's anything complicated about it," Dunn said. "[The NYPD doesn't] want anyone else to see [the data]. And I don't think they want people to see it because there's trouble in the database for them."

In an emailed response, Deputy Police Commissioner for Public Information Paul Browne said the department is not required nor will it give the council access to the database because it identifies individuals.

Figures released in August for the second quarter of 2007 revealed the amount of stops decreased by more than 12 percent compared to the same quarter in 2006. But the new numbers have not stalled the call for increased transparency.

Effect on Communities

The fatal shooting by police of Amadou Diallo in 1999 produced greater calls for police oversight. As part of that, the City Council was charged with receiving and reviewing the stop and frisk data. Since then, allegations of stop and frisk abuse have not ceased and minority communities, some leaders said, have been especially hard hit.

For minority communities, Cohen of the NAACP said, the policy goes beyond crime control. Stop and frisks have a negative impact on communities, he added, by putting individuals through humiliating interrogations and pat downs. And, he said, racial profiling is rife.

"[The police] might get a call on their radio about a suspect and they might start stopping an 'African American male,'" Cohen said. "That's what they're looking for: an 'African American male.' They forget about tall, short, heavy, stocky, brown hair, red hair, braids."

In addition to the number of minorities that have been stopped, the 2006 data also revealed that less than 10 percent of stop and frisks result in arrests or summonses, according to the civil liberties union.

"The problem with stop-and-frisk is that even if you've got good police, the hit rate is still pretty low," said Peter Moskos, a professor at the John Jay College of Criminal Justice and former police officer in Baltimore.

Moskos, who stopped and frisked people during his time as a police officer, has conflicting feeling about it. While he said the practice helps get guns off of New York City streets, he also finds it troubling. "It's not pleasant," Moskos said. "Police approach the situation assuming that you're armed until it's proven otherwise. It's a hands on, intrusive, inherently bad experience that creates a lot of the resentment that's out there."

He said much could be done to improve stop-and-frisk encounters. "It sounds mundane, but police could be more courteous and less rude when they do it," Moskos said. "It's never pleasant to be frisked. But it can be made a little less unpleasant."

But others seek greater changes. Cohen and the NAACP want to stricter accountability and increased diversity training for police. Dunn said the numbers of stop and frisk encounters needs to diminish. The police, he said, need "to find a way to train police officers to stop people on the basis of suspicious activities instead of things like race."

 

Alarms for the Police


Photograph (cc) 2006 Mo Riza

New York City touts itself as being the safest big city in America, and murders in the first nine months of this year declined by 18 percent from their level in 2006. Various commentators credit the police department with having prevented another terrorist attack in the city. A recent poll found 64 percent of New Yorkers approve of the job Ray Kelly is doing as police commissioner. And the furor over police conduct in black communities, which erupted after the fatal police shooting of Sean Bell last November, largely has faded from the front pages.

Despite all the good news, though, the city's police face a number of challenges. Amid all the praise for Kelly, many black and Latino New Yorkers -- particularly young people -- see themselves singled out by officers and subjected to outright abuse. Complaints against officers a have reached record levels while the Bloomberg administration dismisses much of the criticism -- both of the department itself and of the independent agency, the Civilian Complaint Review Board, charged with policing the police.

In many neighborhoods confrontations with the police are a daily fact of life, but in others, demonstrations provide the spark for disputes between police and civilians. While the police cracked down on protests during the Giuliani administration, the policy gained force and it seems a greater degree of public acceptance after the September 11 attacks as the administration sought to equate policing demonstrations with preventing terrorism. It could not, though, fend off all the legal challenges, particularly over the arrests at the 2004 Republican convention. So far, in court, the police have tended to be on the losing side.

Against this backdrop, the department has found it increasingly difficult to attract new recruits. The latest round of contract negotiations between the city and the Patrolmen's Benevolent Association ended with an arbitration panel ruling that rookie cops would only make about $25,000 a year, about half what their counterparts take home in Los Angeles.

Mayor Michael Bloomberg and Kelly have highlighted the starting pay as a major problem but the union has chosen to focus on the wages for experienced officers. NYPD officers, the union says, make far less than their seasoned counterparts in the suburbs, a fact the Patrolmen's Benevolent Association blames for 4,500 departures from police ranks in the last five years. The recruitment difficulties and the departures have left the department about 2,800 officers short of its projected level, According to one estimate.

This week, Gotham Gazette examines several of the issues confronting the New York City Police Department:

Policing the Police
The number of complaints against the police has increased rapidly in recent years, and critics charge the department and the civilian agency charged with monitoring it do not do enough to stop the abuses.

The Failure of Civilian Oversight
The former executive director of the Civilian Complaint Review Board argues that the agency has been co-opted by the police department and is not serving as the strong and independent agency New Yorkers need.

Stop and Frisk
Police stopped and searched more than half a million New Yorkers in 2006, making the procedure as common in some communities as brushing one's teeth.

Up Against the Constitution
The police department considers its handling of protests at the 2004 Republican convention a major success, but the courts do not seem to agree.

A Police Shortage
A police presence prevents crime, writes the head of the City Council Public Safety Committee, which makes the shrinking of the New York City Police Department particularly distressing.

Previous Articles

New York's 'Ring of Steel'
The police department says a plan for high-tech security downtown is simple common sense, but critics see it as a waste of money and an invasion of privacy.

Police in the Schools
Schools have metal detectors, safety agents and even police officers. What effect does this have on what goes on in classrooms and hallways?

Auxiliary Police
In the wake of the shooting death of two of its officers, great changes may be underway in the way New York City's 4,500-member volunteer police force is trained, deployed, supervised...and protected.

50 Bullets, Many Issues
The shooting of Sean Bell on his wedding echoes other shooting of unarmed black men by police. A look at the reactions, the issues raised and what some say should be done to prevent similar tragedies.

 



Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years