When Emily May set up the Web site Holla Back with six friends in October 2005, she didn't expect much response.
"We thought, 'Wow, this is a cute idea,'" said May.
Inspired by Thao Nguyen, whose decision to snap a cellphone picture of a subway rider masturbating led to a high-profile arrest and prosecution, Holla Back gives visitors, mostly women, a forum to post photographs and stories about their experiences being groped, catcalled or otherwise sexually harassed in public.
It didn't take long for the Web site to catch fire. "It was wild," said May. "All of these women were coming out of the woodwork." TV stations and local media started calling, and May appeared on the Good Morning America, the Today Show and CNN. Holla Back was profiled in several local newspapers. More than two years later, the site is still thriving, receiving about 1,500 visits a day, according to May. Fifteen different Holla Back sites have been established nationwide, with another in South Korea.
Holla Back gives New Yorkers a forum for expressing frustration about street and subway harassment of women. At the same time, a growing groundswell of anecdotes, opinions and outrage is beginning to reach the attention of government. For example, in December, the City Council passed legislation, sponsored by Councilmember Peter Vallone Jr., that upped penalties for repeat flashers, or individuals convicted more than once for public lewdness within a three-year period, from $500 to $1,000, and from 90 days in prison to a year.
Little is known about the precise extent of harassment, despite an avalanche of anecdotal information and some small-scale surveys. And debate continues over what role, if any, government should play in regulating the behavior. Advocates hope that laws like the one passed by council last month at the very least will stigmatize behavior that has long been accepted or at least tolerated. Others challenge the harm that is posed by harassment, likening it to harmless flirting. And some fear that the enforcement of laws against harassment and flashing will be unfairly directed at gays and racial and ethnic minorities.
Street and subway harassment is anonymous: In almost every case, the harasser and the person being harassed do not know one another. The harassment itself ranges from rude and prolonged stares and inappropriate comments to behavior that can create fears of sexual assault. Women feel threatened by this, partly because they have no way to determine the intentions of the harasser - whether he is a "good guy or not" in the words of Emily May. Even rude comments can be traumatizing, particularly for rape victims. (According to the United States Department of Justice, one in six women have been raped at some point in their lives.)
Many observers believe that street harassment is essentially a "power trip" designed to put women in their place, a reaction to broader social changes in which women enjoy more freedom and work opportunities than previously. "It's a mechanism designed to reinforce [traditional] status hierarchies," said sociologist Laura Beth Nielsen.
In a rare attempt to quantify the frequency of street harassment, Nielsen interviewed 100 subjects (including some men) in the Bay Area. Fully 62 percent of the women reported experiencing offensive or sexually suggestive comments "every day" or "often." An additional 28 percent said they heard comments "sometimes." Only 10 percent of the women she interviewed said that they "never" heard comments.
In July 2007, Manhattan Borough President Scott Stringer issued a report on sexual harassment and assault in the New York City subways. Sixty-three percent of survey respondents reported being sexually harassed on the subway, and 10 percent said they had been sexually assaulted. About half said they felt the threat of sexual assault and/or harassment on the subway "sometimes or frequently."
Critics assailed the survey's methodology. It relied on self-reporting (individuals were invited to fill out the survey on-line and only a fraction of those invited did so), which may have inflated the findings. The New York Post was particularly harsh, dismissing it as "The Beep Who Cried Wolf." Even the Wall Street Journal weighed in on the topic, calling it a "Dubious Survey on Subway Safety."
While the criticisms were somewhat valid, the report generated a huge amount of attention. A story on the subject at the New York Times blog "City Room" received 163 comments, far more than the 5 to 25 comments that blog entries typically generate.
Reliable information about the nature and extent of street and subway harassment is almost impossible to come by. "There's no research out there," said May. "We don't know how often it happens or who it happens to." The result, according to May, is that "women think it's their fault. They say to themselves, 'If only I wasn't walking there.'"
Stringer believes the government must do a better job of collecting information. "The city has gotten very good at going after crime that it quantifies, so the first step should be tracking sexual harassment and assault in the subway as its own category of crime," Stringer wrote in an email message. "Having that information will allow us to raise the profile of these crimes, demand more of a response from the police and the MTA [Metropolitan Transportation Authority], and create a public service campaign that embarrasses the perpetrators and empowers victims to move beyond fear to outrage." His report recommended the establishment of a hotline for subway riders to report incidents of assault and sexual harassment, citing findings that the overwhelming majority of victims don't bother to report incidents to the police.
Regardless of how widespread harassment is, what can government do about it?
Even efforts to target relatively straightforward behavior such as public lewdness have proved controversial. "It's a struggle for government to regulate public space, because you almost always capture people acting innocently" or for reasons other than those contemplated by the law, said Vallone.
His bill is a case in point: It was criticized by gay right groups who argued that the police use public lewdness laws to target gay men who have sex in public. An enterprising reporter from Gay City News, Duncan Osborne, obtained records of 359 public lewdness complaints filed in the city and found that a small number involved police operations in locations that gay men frequent for sex. (While some may argue that prohibiting public sex is a legitimate government activity, it wasn't the express purpose of the legislation.) In response, Vallone agreed to limit enhanced penalties to "serial flashers" arrested more than once for the same offense in a three-year period.
In the 1980s, transit police falsely arresting black and Hispanic men for what was then called "bumping" in the subways in an attempt to raise their productivity and earn promotions. The pattern of arrests created an uproar. "It's extremely hard in a crowded subway station to tell right from wrong when somebody is up close to somebody else," Richard Emery, a lawyer who represented the falsely accused men, told the New York Times.
The challenge of targeting street and subway harassment becomes even more difficult when you move from behavior (such as flashing or groping) to speech. The first constraint is constitutional: The Supreme Court sets a very high bar against government intervention. Essentially, the government can regulate only speech that is clearly intimidating, rather than merely offensive. In addition, regulations have to be applied in a "content neutral" fashion that does not target particular kinds of speech. In practice, the court has generally struck down laws aimed at racist or sexist speech, but has upheld laws that restrict panhandling, another form of potentially offensive public speech. In her study, sociologist Nielsen suggests this reflects a judiciary that is largely male and thus unfamiliar with the problem of street harassment. About two thirds of the men in her survey reported rarely or never hearing offensive or sexually suggestive comments directed at other people.
Nielsen herself has a nuanced view of government intervention of sexist speech. In her interviews, she found little support for an expanded government role, even among men and women who believed strongly that sexist speech is offensive and morally wrong. White men tended to cite the First Amendment to support their position, but white women and people of color used a much more pragmatic calculus. In essence, they believed that policing sexist speech would either not work or would backfire on its intended beneficiaries. In other words, women doubt that government is the answer to the problem of sexist speech. Nielsen, though, believes that changes in law would have an "important symbolic effect." New laws, she said, would help women make the case that harassment "doesn't just suck, but is illegal."
Whatever the legal pitfalls, advocates think awareness of harassment has increased. "The important thing is that this is no longer a secret conversation between women," said documentary filmmaker Maggie Hadleigh-West. Her 1998 documentary, "War Zone," in which she interviews men who harass women, has enjoyed an unusually long life. She traveled to Egypt this year to show the film, and it is used routinely for training by the U.S. Department of Defense. "The positive part is that it's now being recognized culturally as a problem," she said.
Inspired by "War Zone," a group of young women organized an anti-street harassment campaign in Brownsville, Brooklyn, developing posters and creating a "harassment-free zone" in their neighborhood. "We work with the girls to own up to their own comfort zone and identify what they think is harassment," said Joanne Smith, the executive director of Girls for Gender Equity. "A lot of them end up being comfortable telling people, 'I don't like this.'"
Of course, there are limits to the self-help approach: In one highly publicized incident, four women were arrested for attacking a man in Greenwich Village they accused of harassing them. One woman stabbed the man in the abdomen with a steak knife she carried in her purse. While vigilantism is one concern, a more practical concern for most women is whether confronting their harasser will expose them to more danger.
To Emily May of Holla Back the most effective approach is education: letting men know that women cannot distinguish a harasser who is basically harmless from one who is genuinely threatening. "I think [a lot of] men really don't understand what they're doing when they harass women," she said. "If they understood that street harassment was scary, they wouldn't do it."
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime. Â
While New Yorkers applaud the police for the drop in crime and are generally satisfied with police performance, many city residents firmly believe the police use race as a factor in deciding who to stop on the streets. In a survey taken in 2000, 62 percent of respondents said they believed the police racially profiled. This included 79 percent of blacks, 66 percent of Hispanics and 51 percent of whites.
But a recent study challenged such deeply held notions, largely exonerating the New York City Police Department of explicit racial bias in who officers stop and sometimes frisk. Despite its nuances and subtleties, the study – which received widespread press coverage, including a front page article in the New York Times –provides the police department with powerful statistical ammunition to back its claims that the high proportion of racial minorities stopped by the police in 2006 (89 percent of all stops) reflects the differing crime rates among races, not overt bias.
Civil libertarians and other law enforcement critics struck back, taking aim at the report's methodologies and conclusions. One critic called the report "full of disinformation" and "comprised of endless excuses [and] statistical justifications," according to the New York Daily News. Partisans on the right jumped into the debate as well, with conservative pundit Michele Malkin (among others) accusing the New York Times of playing down the study's pro-police conclusions.
Underlying the partisan debate are some legitimate questions about the statistical techniques used by the study's authors, as well as the police department's refusal to release key data to the public. Perhaps equally important, media accounts have tended to play down the modest concerns raised in the report about police tactics and its recommendations for change. Finally, the study was not designed to answer a central question that all New Yorkers must grapple with: How can we balance the kind of aggressive policing that promotes public safety with the need to maintain trust and confidence in the police, particularly among racial and ethnic minorities?
The raw statistics released by the police department in February 2007 were stark: Over 500,000 pedestrians were stopped by the police in 2006, an almost five-fold increase in the number of stops recorded five years previously. Equally troubling was the racial breakdown of the stops themselves. Non-whites represented 89 percent of individuals stopped, with blacks, who comprise 24 percent of the city population, accounting for 55 percent of stops. In addition, 45 percent of black and Hispanic people stopped were frisked, compared with 29 percent of white suspects -- even though the police were 70 percent more likely to recover guns from white suspects.
The police insisted that the racial breakdown of the stops was justified, pointing to statistics showing that blacks represented 68 percent of suspects identified by victims and witnesses. In the department's view, the racial breakdown of stops was driven by patterns of crime, not racial bias. The stops might also reflect the allocation of police – more police officers are deployed in high-crime neighborhoods that tend to have high proportions of non-whites.
Faced with widespread public criticism and threats of a class action lawsuit by the Rev. Al Sharpton, Police Commissioner Ray Kelly turned to a nationally respected think tank, the Rand Corp., to examine the stop and frisk reports – known as "UF250s" – filled out by police in 2006. The UF250s record detailed information about each stop, such as its location, the time of day it took place and the reason for the stop, as well as post-stop outcomes, such as whether the stop resulted in a search, the discovery of a weapon or an arrest. The challenge for Rand in looking at the data would be to separate stops driven by legitimate public safety concerns from stops driven by illegitimate racial bias.
To analyze the stop data, the Rand researchers used a controversial, though generally accepted, statistical technique knows as benchmarking. To do this, they first analyzed the data to predict how the police would behave if they were not acting in a racially discriminatory model. Then, they compared what actually happened with the benchmarks to determine if there was a pattern of racial bias. Using this method, the researchers found that blacks were stopped in rates comparable to their share of arrests and 20 to 30 percent less often than descriptions of crime suspects by race would suggest. Interestingly, the report found that Hispanics were "overstopped" by between 5 and 10 percent relative to their share of arrestees and crime suspects.
Benchmarking, while commonly used, has limitations. "All benchmarks have problems," said the lead author of the Rand report, Greg Ridgeway. "They're really just ways at poking at the data."
For example, according to Ridgeway, relying on arrest data as a benchmark does not necessarily eliminate racial bias. If the police are biased in their arrest decisions then the benchmark will be fundamentally flawed. To avoid this, Ridgeway prefers to use the reports made by victims and witnesses of alleged crimes because those come from average citizens and not police officers. But that approach has a shortcoming too: Only 20 percent of stops are made in response to report made by a crime victim or witness.
In preparing his report, Ridgeway also examined stop outcomes – such as a search, an arrest or issuance of a summons, the use of force or the recovery of a weapon or drugs – to see if he could detect any pattern of racial discrimination there. As with the stop analysis, benchmarking would be critical. The technique he used was relatively sophisticated. Whites, on one hand, and blacks and Hispanics on the other tend to be stopped for different reasons, including at different times of day, in different precincts and for different types of crime. To correct for that, Ridgeway compared the post-stop outcomes of "similarly situated" stops for white citizens and for black and Hispanic ones. The goal was to compare apples to apples: Stop outcomes would be matched according to time of day, location, type of suspected crime and a host of other factors.
Here Ridgeway found small but significant differences. According to the analysis, non-whites were frisked in 33 percent of stops, compared to 29 percent of similarly situated whites. Police were somewhat more likely to use force on black pedestrians than white pedestrians, but white suspects were slightly more likely to be issued a summons than similarly situated non-whites (5.7 percent versus 5.2 percent), while arrest rates for white suspects were slightly lower than for non-whites (4.8 percent versus 5.1 percent).
While these differences are small in percentage terms, they translate to large numbers of people given the high volume of stops. A two percent difference in frisk rates for black pedestrians relative to whites translates to 5,350 "extra" frisks for blacks per year. The same is true for use of force. The report estimates that there were 2,000 more use of force incidents with black pedestrians than non-blacks. These differences in frisk and use of force rates were particularly pronounced in Staten Island. For example, police in Staten Island used force in 13.5 percent of stops of black suspects, but only with 10.1 percent of similarly situated white suspects.
To Ridgeway, many of the differences in post-stop outcomes, with the exception of those reported in Staten Island, while worrisome, do not indicate a system that is "out of whack and needs restructuring." "These types of differences, with the exception of Staten Island, don't call for a complete overhaul of procedures," he concluded.
Ridgeway's analysis of arrest data, broken down by precinct are, almost identical to the method used in a 1999 study performed by then Attorney General Eliot Spitzer. The Spitzer study, which found that blacks were stopped 23 percent more often that whites and Hispanics were stopped 39 percent more often than whites.
There were some important differences between the Rand and Spitzer reports, however. In the Spitzer study, researchers examined a sample of 5,000 UF250 forms that included a space for the officer to describe the reasons for the stop. Using the standard set by the United States Supreme Court for permissible stops, researchers determined that 61 percent of stops met the legal standard and15 percent did not. In the remaining 24 percent, they did not have enough information to make a determination. Using that information, they found that 1 in 7 legally justified stops led to an arrest, compared to only 1 in 29 stops where the legal standard was not met. Although the rate of unreasonable stops was roughly equal for whites and non-whites, this was a provocative finding, suggesting that the police would be more "efficient" if they only stopped pedestrians for a narrow set of reasons. Rand was unable to repeat this analysis because the newer UF250 eliminated the place to explain the stops.
The Rand report received widespread coverage in local newspapers. Despite the subtleties of the study, the headlines were unambiguous for the most part: "'Profiling' Study Gives NY All Clear" read the New York Post. Other newspaper left out the nuances as well. The Daily News: "Review says half-million NYPD stop-and-frisk cases not racial profiling." Newsday: "Study Downplays Bias in NYPD Stop-Frisk policy." Only the New York Times headline was more measured: "City Police Stop Whites Equally but Frisk Them Less, a Study Finds."
Civil libertarians were quick to dispute the study's findings. Both the Center for Constitutional Rights and the New York Civil Liberties Union criticized the report's methodology, although neither organization suggested an alternative other than relying on census data.
Beyond the report, critics fault the police for their apparent unwillingness to share the UF250 data more generally with the research community. Current city law requires the department to report stop-and-frisk data to the City Council on a quarterly basis. Citing technical difficulties, the police did not report data from 2004 and 2005. More galling to researchers and advocates is that the council had access to only a limited set of the 2006 data, preventing researchers from independently confirming the Rand analysis. "It would be wonderful if the data were a public resource," said Jeffery Fagan, a researcher at Columbia University who worked on the Spitzer report.
For his part, Ridgeway expressed surprise at the media reaction. "I thought it tended to say that the report was giving the NYPD a clean bill of health, and I don't think that's what the report was saying at all" he said.
Ridgeway has had to fight his own battles with the media. An op-ed he prepared for the Daily News with colleague K. Jack Riley was initially given the headline "Police Stop Black New Yorkers More – and with Good Reason" before it was changed to "Police Need to Do a Better Job of Explaining Stop-and-Frisk."
Meanwhile the recommendations made in the report about improved police stop and frisk procedures seem to have gotten lost. Although many of Ridgeway's recommendations were procedural in nature, other recommendations, if implemented, would have a big impact on citizen interactions with the police. In addition to recommending a closer look at police operations in Staten Island, the report calls for the police to be required to clearly explain the reasons behind their action to anyone they stop. Ridgeway argues that police officers should also give each stopped pedestrian an information card with contact information in case they want to file a complaint. The recommendation is based on an emerging body of social science research that suggests that people care more about whether an interaction with law enforcement is fair than the result of the interaction itself. "Just giving information can help defuse things," said Ridgeway.
The report also discusses how to deal with individual officers with higher-than-normal stop and frisk rates. Ridgeway devoted an entire section of his report to a process called "internal benchmarking," which compares the stop rates and post-stop outcomes of individual officers against similarly situated officers. As with the other benchmarks, the goal here is to predict how a police officer, who is not racially biased, would act and compare that to the actual performance of individual officers. Using this technique, Ridgeway identified five officers who stopped more black suspects than expected and ten officers who stopped more Hispanic suspects. (The report also identified nine officers who stopped substantially fewer black suspects than expected and four officers who stopped substantially fewer Hispanic suspects.) In Cincinnati, where Rand pioneered the internal benchmarking technique, supervisors meet with identified officers to determine if there are legitimate reasons for the disparities.
Ridgeway says he verbally presented these recommendations to Kelly two weeks before the written report was submitted. Although it's not clear if the recommendations will be implemented, Kelly told the New York Times that he plans to "put in place what we think is appropriate as quickly as possible."
Critics of the NYPD generally have been cool to internal benchmarking and said little about the other recommendations in the report, largely because they believe its focus is misplaced. Stop and frisk policy "is set at the precinct level, not the individual police officer level," said Columbia law professor Jeffrey Fagan. The fear is that stop and frisk will be reduced to a problem of a "few bad apples, rather than a system-wide problem," said Kamau Franklin, a racial justice fellow with the Center for Constitutional Rights.
The report was not designed to address the effectiveness of stop and frisk as a policing strategy. Even the department's critics generally agree that aggressive stop and frisk strategies used to take illegal guns off the streets in the 1990s played a role in the city's historic crime drops. However, they wonder if the five-fold increase in recorded stops over the last five years – which could be partially attributable to improved recordkeeping – is justified in a city with relatively stable crime rates. "It's an astonishingly high number of interactions," said civil rights attorney Andrew Celli, who oversaw the 1999 Spitzer report as the chief of the Civil Rights Bureau in the attorney general's office. "How effective and how useful at combating crime is this kind of police activity?"
That's difficult to determine. Even the widely cited statistic that only 10 percent of stops result in a summons or arrest is open to interpretation, according to Ridgeway. He described riding along with police officers and a victim who had been assaulted by three individuals. The police stopped three groups of men before they found the assailants. Even though six of the nine individuals stopped were innocent, it's hard to criticize the police response, Ridgeway said.
One seemingly intractable problem involves the gulf between those who have experienced - or believe they have experienced -- a racially biased and intrusive police search and those who have not. No matter what the official rationale for a race-based stop, it is a traumatic experience. It causes "fourfold harm" in the words of William Stuntz, a legal theorist, because it raises the threat of physical violence, stigmatizes the individual by treating them like a criminal, violates their privacy and singles them out on the basis of their skin color. It is difficult to imagine that any statistical analysis, no matter how sophisticated, can convince a person who experienced an intrusive search that the police were acting in good faith. Scholar Michael Tonry has put it another way: Regardless of whether the criminal justice system is acting in a biased way (Tonry believes it is not), black men in particular have borne the brunt of police suspicion on the basis of race.
It seems clear, then, that the Rand report will not quiet the debate about the effectiveness of aggressive police strategies. Dueling stories from late November suggest the ongoing dynamic: The police release statistics showing that murders have been reduced to a 40-year low; at the same time, the number of suits filed against the police and grievances submitted to the Civilian Compliant Review Board, an independent police watchdog agency, continue to rise.
Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system's approach to low-level crime.
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Every once in a while a case arises in the law that seems ordinary and unlikely to change law or policy or mean much to anyone but the individuals directly involved. These can be little cases that become big because of determined litigants and tenacious lawyers who keep challenging until they are heard. People v Matthew Jones is one of those rare cases. When Jones, 19, was arrested on West 43rd Street in Manhattan, at 2:01 a.m. on June 12, 2004, he could not possibly have expected that the case resulting from his arrest would three and a half years later reach the highest court of the State of New York.
But the case of People v Jones did go to the highest court, the Court of Appeals. That court has now unanimously decided that legally, it was not Jones' conduct that was the problem, but rather the arrest itself and the language used to describe the event.
Jones, who had no criminal record, was accused by the New York City police of disorderly conduct, a violation of the Penal Law. Because he ran from the police, he was also charged with resisting arrest, a misdemeanor. Police handcuffed Jones, placed him in the back of a patrol car and took him into custody. After a night in a police precinct, hours spent in central booking, a round of fingerprinting and posing for mug shots, and dining on a baloney sandwich while locked up in the "pen" of Criminal Court at 100 Centre Street, Jones appeared before Judge Abraham Clott for arraignment and notification of the formal charges against him.
The charge against Jones was that "with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, [he] obstructed vehicular and pedestrian traffic." The arresting officer further stated that, "he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] ... Deponent [the police officer] directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run." Translation: Matthew Jones was standing on a public street and did not follow police orders to move (though he apparently did run).
The attorney appointed to represent Jones, Eric M. Dorsch of the Legal Aid Society, asked Judge Clott to dismiss the case. Dorsch argued that the charges -- Jones' presence on a public street -- were insufficient. That is, the written allegations failed to establish a prima facie case that Jones had committed a crime or violation of the Penal Law.
Dorsch argued that accusations contained in the information, the type of complaint issued against Jones, lacked the factual allegations of what his client had done to constitute criminal conduct. The information must give the defendant specific notice of how he or she broke the law.
The Criminal Procedure Law requires that this written accusation provide reasonable cause to believe that the defendant committed the offense charged. In this case, the acts committed by Jones and observed by the arresting officer allegedly were intended to cause public inconvenience, annoyance or alarm or could created a risk by obstructing vehicular or pedestrian traffic. But nowhere did the papers say what exact acts led to the arresting officer's conclusions.
Judge Clott, however, denied dismissal. Jones then agreed to plead guilty to disorderly conduct with a sentence of "time served," meaning the time he had already spent in jail, without any further penalty. In exchange for the guilty plea, the charge of resisting arrest, a class A misdemeanor punishable by up to a year in jail, was, as is typical, dismissed.
Most defendants enter pleas of guilt, which are the same as convictions after trial. Since every year thousands of cases end with guilty pleas at arraignment, this might have been the end of People v Matthew Jones. Here, however, the Legal Aid Society continued to make its arguments. Nancy E. Little of the Legal Aid Appeals Bureau took issue to the Appellate Term, which hears cases arising in the Criminal Court. There, two out of three judges agreed with Judge Clott who had found no defect in the arrest and charges, and affirmed his refusal to dismiss.
That still was not the end of it. Little continued up the appellate ladder, taking the challenge to the Court of Appeals in Albany where all seven judges of the state's highest court agree that the conviction resulting from Jones’ guilty plea guilt had to be reversed and all charges dismissed.
" Something more than a mere inconvenience of pedestrians is required to support the charge," wrote Judge Carmen Beauchamp Ciparick, who is from New York City and began her judicial career as a judge of the Criminal Court. "Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute.”
Citing a 1928 case holding that those congregating on the street display "atrociously bad manners" by "discommoding some other persons," Ciparick's opinion said such conduct alone does not necessarily give rise to disorderly conduct. In other words, the court concluded that "nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m. had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." Therefore, no prima facie case of disorderly conduct was spelled out and therefore the courts lacked jurisdiction or the power to consider the case, because legally, there was no case.
In addition, the court found the prosecution could not say a man broke the law by standing on a public street without stating what he did to warrant an arrest. There were no facts to support the charges. In the future, police officers, prosecutors and judges will have to adhere to the principals set out in People v Matthew Jones. The police will have to write up more specific charges and cannot say that the basis for an arrest was that a person was simply standing on the street, or even being "annoying" without saying what exactly was done.
Once the disorderly conduct charge fell, so did resisting arrest charge. Jones could not be resisting arrest if the arrest was not proper in the first place. Resisting arrest requires that "a person is guilty ...when he intentionally prevents or attempts to prevent a police officer ... from effecting an authorized arrest of himself or another person." And this was not an authorized arrest.
The office of the Manhattan district attorney, which prevails in the vast majority of appeals from cases it prosecutes, had battled the Legal Aid Society in order to uphold both the disorderly conduct count and the charge of resisting arrest. Having succeeded in two lower courts in its case against Matthew Jones, the office of Robert Morgenthau, represented on appeal by Paula-Rose Stark, received an unusual defeat when the Court of Appeals vacated the conviction and threw the case out.
Dorsch, the lawyer originally assigned to represent Jones at his one and only court appearance, has left the Legal Aid Society and is now first deputy executive director of the Civilian Complaint Review Board, which rules on cases of allege police misconduct. In that capacity, he has been reviewing the Court of Appeals opinion in People v Matthew Jones in connection with possible future citizen complaints to the board. Dorsch, though, had handled too many "discon" (disorderly conduct) charges, to remember this one in particular. It was only during a telephone interview for this column that Dorsch learned, that according to court transcripts, the lawyer for Jones who, at the arraignment three and a half years before, had made the motion to dismiss and so laid the groundwork for Little’s appeal and the unusual result, was Eric M. Dorsch. Jones has not filed a complaint with the board, and there has been no civil lawsuit.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ