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NYPD Is Sheltered From Lawsuits By New City Policy, Complaint Says

By Noah Hurowitz | November 4, 2016 5:13pm | Updated on November 7, 2016 8:40am
 Police arrest a protester in Manhattan.
Police arrest a protester in Manhattan.
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DNAinfo/Theodore Parisienne

CIVIC CENTER — Activists are suing the city in hopes of ending a recent policy allowing NYPD lawyers to act as prosecutors in low-level summonses, such as protest-related cases, saying the practice is being used by the department to protect itself from unlawful arrest lawsuits.

Arminta Jeffryes and Cristina Winsor, who were arrested during a Black Lives Matter protest in March, filed a lawsuit with the Manhattan Supreme Court Thursday, calling the Manhattan District Attorney’s office's policy, which went into effect in February, a conflict of interest and a clear effort to hamper people's right to demonstrate, according Winsor's lawyer Gideon Oliver.

"It's unprecedented and unauthorized as we read the law," he said.

Summonses issued for minor offenses are far beneath the radar of the DA's office in most cases, so when a protester gets arrested and decides to contest the ticket, the officer who wrote the summons is usually the one to go before the judge to argue the state's case.

Often in those hearings, a judge will issue what's called an "adjournment in contemplation of dismissal," or ACD, which means the arrest will be scrubbed from the defendant's record if they stay out of trouble for a certain amount of time and they're not required to admit fault — clearing the way for the defendant to file a wrongful arrest lawsuit.

But with the signing of a memorandum of understanding by the DA's office earlier this year, attorneys from the NYPD's Legal Bureau are authorized to prosecute summons cases in the stead of the summoning officer. 

The Daily News first reported on the change in policy.

Delegated prosecutors, unlike officers, can ask that the defendant admit wrongdoing as a requirement for being offered an ACD, Oliver said, which makes it difficult to sue the department or individual officers.

And it's a conflict of interest because the attorneys are prosecuting with the goal of protecting the interests of the department, rather than representing the people of New York like traditional prosecutors.

"The purpose is to insulate the Legal Bureau from potential future lawsuits, which is a very different interest from that of the Manhattan District Attorney's office," Oliver said.

"We believe that's a fundamental conflict with a prosecutors ability to do justice."

In January Larry Byrne, deputy commissioner for legal affairs, told the Daily News that using those legal representatives effectively as prosecutors would help “put some teeth” into summonses and prevent protesters from breaking the law in the future.

According to Oliver, a Freedom of Information Law request for reports from the Legal Bureau to the DA's office revealed that police lawyers acting under the authority of the memorandum of understanding have prosecuted 15 cases since February.

To Oliver and his colleague Martin Stolar, a prominent civil-liberties attorney who's representing Jeffryes, that low number is a giveaway that the Legal Bureau is targeting protesters, not engaging in a routine effort to lessen the workload of its officers or the DA's office.

“This really hasn’t appeared in many cases, it’s only been people arrested in connection to protest activity,” Stolar said. “It’s difficult to say if it’s focused solely on organizers, but Ms. Jeffryes is certainly an organizer, and it’s my belief she was targeted.”

Oliver's findings from the FOIL could not immediately be independently verified. 

A spokeswoman for the Manhattan District Attorney's office declined to comment, and a spokesman for the NYPD did not return a request for comment.

Jeffryes and Winsor were arrested on March 7 at a "People's Monday" march, a weekly protest by Black Lives Matter activists at which they highlight each week a different person killed by police.

Jeffyres, who said she was held for five hours before police issued her a summons and released her, was charged with jaywalking, while Winsor was charged with marching in the street and disorderly conduct.

They had a court hearing in May, and Jeffryes, who has been arrested numerous times at protests and has experience with the established routine for summonses, said she was surprised to see the police captain who signed her summons show up with a lawyer in tow.

“It shocked me because he walked in with his lawyer, and she talked to Marty [Stolar] like a prosecutor would,” she said. “Something was definitely different.”

Lawyers representing Winsor and Jeffryes filed motions seeking to block the use of police prosecutors in June, but Judge Guy Mitchell, who was hearing the case, in September, agreed with arguments made by the DA's office that the practice is acceptable.

In court documents filed in response to a motion by Stolar, an assistant district attorney argued that because Jeffryes hadn’t sued the officer who issued the summons, discussion of conflict of interest wasn’t relevant.

“There has been no civil case asserted by defendant against any police officer arising from this case, and so defendant’s argument is wholly hypothetical,” wrote ADA Benjamin Rosenberg.

“Furthermore, there has been no showing that the lawyer from NYPD is participating ‘solely to obtain an advantage in a civil matter.’”

In response to the Mitchell's decision in support of the NYPD and the DA, he has been included as a defendant in the lawsuit.