Legal Fight Brews Over Public Housing Arrests

By Jason Alcorn on Jan 5th, 2011

Police sweep public housing stairwells top to bottom, like this one where Eleanor Britt's grandson was arrested in 2009. (Photo by Jason Alcorn)

Two police officers knocked on Eleanor Britt’s door in West Harlem in January 2009. Her grandson Roman was in handcuffs downstairs, arrested for criminal trespass in public housing, a class B misdemeanor.

Britt was shocked. Her grandson wasn’t the type to get into trouble. Eighteen months after graduating from Bowdoin College with a degree in government and legal studies, he was working at Harlem Children’s Zone under education reformer Geoffrey Canada.

“I told them: ‘You really don’t have to do that. He’s a good person, a decent person,’” Britt recalls. “He lives here.”

The officers had come across Britt’s grandson and a friend talking in the stairwell leading from the 17th floor to the roof, just two flights up from the apartment he had shared with his grandmother for more than 20 years.

“They frisked him head to toe,” Britt says. “Then they put handcuffs on him and arrested him.”

Three New York Police Department officers took Britt’s grandson into custody, fingerprinted him and jailed him for six hours on Jan. 31, 2009, because he did not take his ID with him into the stairwell of his own building.

Britt is still as bewildered as she was during her 10-minute argument, Roman’s driver’s license in hand, with the officers who knocked on her door two years ago.

“You’re in the hallway of your building,” she says. “Why would you have your ID?”

Last year, the police department stopped more than 59,000 people in public housing. Fewer than 9,000 of the stops resulted in arrests, according to a recent City Council briefing. Maybe Britt’s grandson was just unlucky, but he doesn’t see it that way. Neither do Britt and a handful of city politicians, including Council Member Rosie Mendez.

“It is my belief and the belief of many of the residents that reside in public housing,” Mendez said at a committee meeting in September, “that the New York City Police Department is targeting people in public housing because of where they live and because of their demographic composition.”

Britt’s grandson, like nearly half the residents of public housing, is black. More than 60 percent of those stopped for trespass in the city are black, as are more than 50 percent of those arrested, even though they make up just a quarter of the city’s population. Latino residents of public housing face much the same situation.

Now the department is coming under increasing legal and political pressure, including a class action lawsuit filed in January against the city and the New York City Housing Authority. Britt and her grandson are two of the 17 plaintiffs in the suit, which alleges that the Police Department’s policies constitute racial discrimination and lead to unlawful arrests for trespass.

“The treatment of residents of NYCHA has been a longstanding issue of debate,” explains Johnathan Smith, an NAACP Legal Defense and Educational Fund attorney working on the case. “I think the fact that this case is taking place so that people have the right, the ability to enjoy their residence, to have an impact on the NYPD, it’s really important.”

The plaintiffs’ stories, outlined in a complaint filed with the court in June, show daily routines interrupted by run-ins with law enforcement. Four plaintiffs in addition to Britt’s grandson were arrested in upper Manhattan:

¶Edwin Larregui, 39, was arrested after a visit to see his wife’s grandmother, who lives in the George Washington Carver Houses in East Harlem. He spent the night at Central Booking before seeing a judge who let him go the next day.

¶Three months later, Anthony Anderson had just dropped off his niece and nephew at his sister-in-law’s apartment at the Thomas Jefferson Houses when he was arrested and jailed for two weeks. All charges against him were dismissed.

¶The police arrested William Turner, 39, leaving a friend’s building in the Drew Hamilton Houses in early 2008. After six months and four court appearances, his case was dismissed.

¶David Wilson, 53, was arrested last year by two plainclothes officers on West 114th Street in Harlem. When his elderly aunt, whom he was visiting, came to the courthouse to explain, a judge dismissed the case.

Most arrests don’t result in conviction. A trespass charge is easy to disprove: a sworn statement from a building resident is usually enough. And arrests in public housing often involve rookie officers, says Christopher Fabricant, director of the criminal justice clinic at Pace Law School. “The result is sloppy paperwork and bad witnesses,” Fabricant says.

From 2005 to 2008, the city declined to prosecute over 11 percent of trespass arrests, according to a study published this fall in the Columbia Law Review, nearly twice the rate for drug sales or resisting arrest. The Bronx Defenders, which provides attorneys to indigent defendants in court, won nearly 90 percent of its trespass cases last year; two years ago, 54 percent of the cases that went to trial boroughwide ended in acquittal or a hung jury, Fabricant says.

But he is quick to point out that often there are still serious repercussions. At the very least, an arrest usually means a night in jail, and if it’s not dismissed the average misdemeanor case takes more than a year to go to trial.

The consequences, William Gibney, a Legal Aid Society attorney, testified in September, include “missing work or medical appointments, being unable to satisfy family obligations, and navigating the criminal justice system over several months and with multiple court appearances.”

As a result, innocent people plead guilty, sometimes to a lesser charge, a trespass violation, which carries a $120 fine. They return to work and their families more quickly. But as public housing residents, criminal conviction can be a reason for eviction. A conviction can also affect future employment, since it will show up on background checks.

Britt went to the precinct building that night two years ago to learn what was going to happen to her grandson.

“When your child’s arrested, you don’t know what to expect,” she says. “They didn’t allow me to see him or to speak with him.” So she left and came back with Roman’s uncle. Still, they told her: “You just need to leave. We’ll release him when we’re ready.”

Around 1 a.m. Sunday morning, her grandson’s fingerprints came back clean and he was allowed to leave. Within a few days, the public defender assigned to the case called and a court date was set for March.

Despite advocates’ concerns, the increase in trespass arrests over the last decade and a half corresponds to safer public housing: Between 1998 and 2003, crime fell 34 percent, according to a report by the New York Lawyers for the Public Interest.

A causal link is doubtful, but in many ways it doesn’t matter. The perception is that the current approach to policing is effective, so some residents want aggressive stop-and-question policies, no matter the tradeoff.

“It’s a very sensitive issue,” Bishop Mitchell Taylor of the Civilian Complaint Review Board said in September, “because residents want safe neighborhoods, but residents also want the balance of not being harassed in their own neighborhoods.

“I think that’s the dance that’s being done now.”

City Council Member Derek Halloran addressed the question at a committee meeting in September. “In the late ’80s and early ’90s, there was an explosion of trespassing that led to crimes in public housing facilities,” he said, defending the Police Department’s record.

The increase began with two changes in city policy. In 1992, nonresidents for the first time needed an invitation to enter public housing. Prior to that, the lobbies and hallways of buildings were as open to the public as sidewalks. Three years later, the city Police Department absorbed the housing police and became the security force for the Housing Authority.

“The controversy back then,” Tosano Simonetti of the complaint review board said at his group’s October meeting, “was a lot of people in public housing said: ‘Don’t take our housing cops away from us.’ They wanted them to remain because they felt they had a better – or they had a good understanding with them.”

The demographics of public housing don’t match the rest of the city. The Housing Authority operates 53 buildings in upper Manhattan, among 334 developments and 2,600 buildings across the city, making it the largest such agency in North America.

Its more than 400,000 residents skew young and old; over 35 percent are 62 or older and nearly 37 percent are under 21, compared with 15 percent and 26.5 percent citywide, according to agency data and the Census Bureau’s 2009 American Community Survey.

Britt remembers when the relationship between building residents and the police started to sour: It was when the two police departments merged. “We used to have one officer assigned to the building,” she says.

Now she rarely recognizes the officers. “Don’t get me wrong, we need police presence in the community,” she says, “but they need to know how to interact.”

Sitting on the building’s tenant board, she hears the same stories again and again. Her neighbor’s sons have been wrongfully arrested. And each month new complaints are raised about police conduct.

“The answer to a crime problem cannot be the arbitrary arrest of everybody in the building because you don’t like the way they look,” says Fabricant, the Pace legal clinic director.

Halloran also acknowledged the lawsuit’s importance. “I think that one of the things that you’re pointing out, egregiously, unfortunately, is that the Constitution sort of takes a second seat towards the goal of safety,” he says.

“We are very much engaged in the litigation,” says Smith, the Legal Defense and Education Fund lawyer. “Our goal is for residents to be treated with dignity and respect. To the extent there are other avenues, we are taking advantage of them.”

One of those options is bringing about the kind of political pressure via the City Council that forced changes in the Police Department’s stop, question and frisk policy last year.

The September committee meeting where Council Member Mendez condemned the Police Department’s targeting of public housing residents focused exclusively on trespass arrests. Twenty of the 51 council members attended, including two uptown representatives, Robert Jackson and Melissa Mark-Viverito. No one from the Housing Authority or the Police Department testified, despite invitations. Instead the committee heard testimony from the Civilian Complaint Review Board, counsel in the class action case, tenant advocates and public housing residents who all testified against current police policy.

“We understand the need for police officers in NYCHA developments,” said Council Member Debbi Rose.

“Cameras might be a help but they’re not addressing the core issue about the relationship,” Gibney of the Legal Aid Society said in response to a question from Jackson.

Mark-Viverito, whose East Harlem district has more than 18,000 units of public housing, the highest in the city, said her constituents regularly raise issues of police harassment.

“This somehow has become a rite of passage that they’re going to have these kinds of experiences of being stopped and frisked,” she said. “So this is obviously a very serious issue that we have to be aggressive about and we have to be more vocal in denouncing it.”

It fell to council members to question whether the Police Department could take credit for reducing crime, as the discussion moved from acknowledging a problem to looking at fixes.

Gibney responded: “I think there’s a considerable debate. I don’t think there’s a clear answer as to what the relationship is.”

Jin Hee Lee, Gibney’s co-counsel from the NAACP Legal Defense and Educational Fund,* added: “It’s not a matter of security or no security. The real issue is how that security is being provided and whether residents’ constitutional rights are being respected.”

The Police Department has already taken several steps this year to improve the relationship between officers and public housing residents. In June, the department announced a revision to the Patrol Guide, literally underlining the need for reasonable suspicion to stop a suspected trespasser. The guide also instructs officers on what to do if they suspect someone is not authorized to be in the building: First, “take reasonable measures to verify such authority (e.g., asking for identification, a key to the building entrance doors, etc.).” Then, ask them to leave. Only then can the officer make a trespass arrest, if “the person refuses to exit the building and does not promptly establish a right to be in the building.”

In November, the 2,000 officers in the Police Department’s housing bureau received training on the new guidelines. Fabricant is skeptical: “The patrol guide simply states what the law already was. That the NYPD felt the need to revise it seems to me absurd.”

He has seen fewer public housing trespass arrests in the Bronx courts in the last two months, though he cautions that he hasn’t done a rigorous count to know for sure.

A spokesperson for the Housing Authority, which helped the Police Department create the new guidelines, said via e-mail only that the agency is “pursuing and rolling out new policies and procedures that will improve the long-term safety and well-being of public housing residents in New York City.” The Police Department did not respond to repeated requests for comment.

Soon after his arrest, Britt’s grandson received three letters in the mail. Because he worked with schoolchildren at Harlem Children’s Zone, his arrest triggered warnings to his employer, even before his first appearance in court.

“Thank God he worked for good people who understood,” Britt says. Roman was able to explain what happened and avoided getting suspended.

Others find themselves in worse circumstances. Among the plaintiffs arrested in Harlem: David Wilson missed a job interview, Edwin Larregui was suspended for two weeks for missing work while in custody, Anthony Anderson lost his job as a private security guard and the Department of Education suspended William Turner for eight months without pay.

Britt and her grandson arrived for his desk appearance on March 2 to see their lawyer coming out of a meeting with the district attorney’s office.

“The D.A. said this was nonsense,” says Britt, “and it didn’t even merit making a desk appearance.”

Roman’s record, including his fingerprints, has been sealed, as if the arrest simply never happened. But for him it’s not so easy to erase the past, even though he now lives in Los Angeles. When he was home visiting, he ran into the police officer who had arrested him.

“Do you remember me?” the officer asked.

Roman replied, “Yes, you’re the idiot who arrested me for trespassing in the building where I live.”

It wasn’t a joke. The officer laughed anyway.

* The article originally described Jin Hee Lee as counsel at the Legal Aid Society. The Uptowner regrets the error.

3 Responses for “Legal Fight Brews Over Public Housing Arrests”

  1. Ingrid says:

    I AM TRULY ELATED FOR THE NAACP, REV AL SHARPTON, OUR OTHER LEADERS, PREACHERS AND THE INDIVIDUALS THAT DO ALL THEY CAN TO MAKE SURE WE ARE TREATED FAIRLY, ESPECIALLY SINCE THE JUDICIARY SYSTEM IS STILL NOT VERY FORGIVING WHEN IT COMES TO BLACKS & BROWNS EVEN NOW THAT WE ARE IN 2011. I AM ALSO ELATED THAT THESE PEOPLE ARE STANDING UP FOR THEMSELVES. I JUST WISH MORE PEOPLE IN NORTHERN VIRGINIA WOULD DO THE SAME BECAUSE THE JIM CROWS AND WILLIE LYNCH’S OF TODAY ARE SITILL VERY ACTIVE DOWN THERE. INSIDE THEIR POLICE DEPARTMENTS, COURTOOMS,PRISONS, CLASSROOMS, SCHOOLS & SCHOOL SYSTEM! WHILE I AM AT IT LET ME SPEAK ON ANNE ARUNDEL COUNTY MARYLAND BECAUSE THEY ARE RUNNING NECK AND NECK WITH VIRGINIA WHEN IT COMES TO UNJUST EVEN IN SOME OF THE WORK PLACES. SAME RACE DISCRIMINATION AND SAME RACE HATE IS HORRIBLE IN BOTH STATES. THIS IS ONE OF THE REASONS WHY I STRESS IT EVERY CHANCE THAT I CAN VOTE VOTE CORRECT!!!!! THANKS FOR YOUR TIME AND BLESSINGS TO YOU ALL!

  2. Amanda Masters says:

    I just wanted to comment on the quote “Between 1998 and 2003, crime fell 34 percent, according to a report by the New York Lawyers for the Public Interest.” I wrote that report with an intern, and the help of many volunteers, and this is simply not what the report said.

    The report merely cited the fact that the police apparently gave data to NYCHA which NYCHA put on the NYCHA website that claimed crime dropped during a period when the NYPD began receiving federal funding from HUD.

    The NYPD may claim that the aggressive policing in NYCHA buildings has led to a reduction in crime – and we may have also mentioned that NYPD claim in the report – but I would disagree with the NYPD on that. The manner in which the NYPD has mis-applied the trespass law has led to meritless and illegal arrests and ticketing of a great number of law abiding people simply trying to get in and out of their homes every day, not a reduction in crime.

    Amanda Masters

  3. Jason Alcorn says:

    Amanda, Thanks for the comment. Readers can find the report here: http://stage.nylpi.org/policing.html. The drop in crime cited, as you say, was based on data the NYPD provided to NYCHA.

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