Freedom from security: Part 2, the legal jousting

December 14, 2012 | Affordable Housing, High-rise, Innovations, New York City, Occupancy, Regulation, Security

By:David A. Smith


[Continued from yesterday’s Part 1.]


Yesterday’s post used a New York Post (October 19, 2012) story and many other sources to explore New York City’s Operation Clean Halls program, under which rental landlords give permission for NYPD officers to conduct floor-to-roof patrols through their properties, and to challenge anyone who cannot show residency in the property.  Though the program’s been around for more than twenty years, is defended by the Bloomberg Administration, and is enormously popular with landlords (especially in the Bronx), the NYCLU implies that the program is racist and discriminatory:


That’s a question, not a statement


The NYPD has no meaningful standards concerning which buildings are eligible for the program.


The NYCLU’s preceding statement is conclusory, not factual.  The standards, obviously, are a multifamily building whose landlord requests enrollment. And in any case, let’s reverse the question: should there be buildings that are ineligible to be enrolled, and on what grounds would ineligibility be justifiable?


There is no centralized oversight of how the program is enforced, nor is there a single roster of all the buildings enrolled in the program citywide.


Again, all this presumes we are dealing with public space, rather than private property.  The Wall Street Journal (October 16, 2012) (green font) adds further relevant facts:


Under the “Operation Clean Halls” program, police are authorized to enter the participating buildings, which would otherwise require permission from the owner or a warrant that would require a showing of probable cause. Once inside the Clean Halls buildings, officers conduct roof-to-basement patrols and enforce trespassing laws. About 16,000 privately owned buildings participate in the program, which city officials have credited for crime reductions.


At the same time, the statistics invite racial inferences:


According to NYPD data cited in the suit, between 2006 and 2010, 94.4% of 329,446 people stopped for trespassing [presumably, under Operation Clean Halls – Ed.] were black or Latino.


That statistic, however, is meaningful only if placed in the context of the racial mix of the neighborhoods or the properties involved.  Similarly, the statistic displayed graphically below is double-loaded:


Obvious differences visible: but Operation Clean halls doesn’t apply to every building in New York


A better argument, one raised during the hearing, is that the program is merely harassment because it bothers people without sufficient evidentiary basis:


Only one in eight of those stops resulted in an arrest or summons.


As a result, the Bronx District Attorney’s office has been less than enthusiastic:


Bronx DA’s Office bureau chief Jeannette Rucker testified earlier that she believed cops have been making illegal trespassing arrests, leading many cases to get thrown out of court.


A Steelers fan in the Bronx


That led to a dramatic change in policy:


This past July, Rucker wrote to the NYPD and notified them that that trespassing arrests based solely on paperwork that contains an officer’s arrest affidavit would no longer be sufficient to prosecute cases. Prosecutors had to also interview the officer.


The result, Rucker testified on Tuesday, is that trespassing arrests made as part of the “Clean Halls” program are substantially down in the Bronx, as are the number of cases the district attorney’s office has had to decline to prosecute.


The facts seem muddy, as evidenced by this:


Clear as mud?


Also testifying yesterday for the city was rookie Bronx prosecutor David Grigoryan, who said he’s handled “many” trespassing cases since being hired a year ago.


But Grigoryan said he has dismissed only one, which involved a mentally ill man who failed to tell cops he was staying with his sister when he was arrested for trespassing.


The hearing was definitely lively:


Mark Zuckerman, a city attorney [Who’s previously sparred with the NYCLU – Ed.], sparred with Rucker about whether it was proper to arrest a drunken man passed out in the vestibule for trespassing, with Rucker taking the position that in that case the person should be awakened and made to move, not arrested.


That caused Zuckerman to say, “You don’t like prosecuting these cases, do you?”


Rucker denied that and replied, “I’m not trying to get them to stop their arrests. I’m just trying to get them to do it right.”


All this brought the case before Judge Scheindlin (New York Post, May 17, 2012), about whom the New York Post both reported and editorialized:


Judge Shira Scheindlin


Scheindlin yesterday granted class-action status to a 2008 lawsuit accusing the NYPD’s highly effective stop-and-frisk anti-crime policy of deliberate racial bias.


In so doing, she accused the NYPD of displaying “a deeply troubling apathy toward New Yorkers’ most fundamental constitutional rights.”


Coming from Scheindlin, this is no surprise: This is the same judge, after all, who ordered a new trial for Brink’s bank robber-cum-terrorist Judith Clark 25 years after the heist, despite agreeing that Clark had no legal right to any such thing.


As mentioned above, the Constitutional questions to me seem less relevant, given that this is private property governed by a rental agreement (lease) under which the tenant acknowledged that the landlord owned the property and managed the public space. 


For its part, the city said, “We believe stopping trespassers inside and outside is constitutional. There are systems in place designed to make sure officers know when it’s okay to do so.”


The NYPD said it’s trying to offer the same kind of protection residents might get from a doorman, but the New York Civil Liberties Union said the Department is going over the line regularly.


Operation Clean Halls doesn’t enter apartments, it patrols the common or public spaces within buildings.  Hence her exchange with landlord Consolato Cicciu (of a non-profit community development corporation) is on point:


”Do you think it’s been effective?” Manhattan federal Judge Shira Scheindlin asked Cicciu, who appeared as a defense witness for the city. “Absolutely,” he responded.


Cicciu said he hadn’t gotten any complaints from tenants about being stopped by cops on patrol.


That is certainly evidence, the more so as the people who have best legal standing in the property are the owners and the lease-holding tenants.  Others are guests … or trespassers.


He also said the NYPD offered a service that couldn’t be obtained anywhere else.


“Anybody can fix a roof and a lock — the social condition of a building requires a certain amount of sensitivity,” he noted.


The Post also reported this interesting exchange, calling into question the credibility of NYCLU’s named plaintiffs:


Press conference with the plaintiffs


Another witness called by the city yesterday was Anginette Trinidad, who was arrested along with one of the plaintiffs, Abdullah Turner, outside a Clean Halls building in March 2011.


Though no one remarked on it, none of the named plaintiffs appears to reside in any Operation Clean Halls building, which suggests there are no current tenants who feel that Operational Clean halls resulted in a violation of their rights.


Angel Ortiz, one of the NYCLU plaintiffs


Trinidad said she and Turner were on their way to an engagement party when she left him outside the building while she ran inside to return a sweater at a friend’s apartment.


But Trinidad said she invoked the Fifth Amendment when she was asked during a deposition if she had also gone inside to buy pot.


And while the trespassing charge against Turner was ultimately dismissed, Trinidad said her case ended in a guilty plea to disorderly conduct.


Clearly, inviting the police onto one’s property and giving them an open-ended invitation to question people who are not residents is a step not taken in every apartment building, and one that could unsettle guests and visitors — and it could certainly be applied in a selective fashion. 


I have not heard from any tenants in any of the 1,883 units — no one,” said Consolato Cicciu. In fact, Cicciu said, the only complaint he’s heard is, “Why don’t they come more often?”


Remember, these buildings aren’t public property, they’re private property, and the people whose property is at stake appear happy with the policy:


547 East 180th Street at Third Avenue, owned by BAALDC.


[Bronx District Attorney Jeannette] Rucker also acknowledged that the police department has taken steps to improve its training in regards to these types of stops. The city contends that the NYPD has put in place new training that addresses many of the concerns contained in the federal class-action lawsuit filed in March by the New York Civil Liberties Union and several other community groups and legal organizations.


If so, then the litigation will have had a salutary effect.


When is it justified?