In January 2004, Eddie Wise was sitting in the holding pen of Bronx Civil Court, waiting to Be arraigned after his latest arrest, when he spotted Lisa C. Cartier Giroux, a lawyer he knew from Bronx Defenders, a nonprofit organization that Represents the indigent. Wise got Giroux’s attention and, from his holding pen, began proclaiming his innocence. Earlier that month, the 44yearold homeless AfricanAmerican man had been arrested on Fordham Road in the Bronx. His arrest report accused him of “engaging numerous pedestrians in conversation with his hand out requesting money.” The exact charge facing Wise, who concealed his slight build beneath hoodies and baggy jeans and covered his cornrows with a dorag, was a violation of New York’s law against loitering “in a public place for the purpose of begging.” In his mind, though, he wasn’t loitering at all. He was working. You see, Wise titled himself a professional street hustler even though most of us would call what he did for a living begging. He was the guy lingering in front of the liquor store asking you for a “reasonable donation” on your way out, the guy promising to “protect” your car from vandals in exchange for a “tip.” Despite a recurring drug problem, he was ablebodied. He’d held regular jobs. Begging simply allowed him to make his own hours and be his own boss.
Giroux listened to Wise and agreed to look into it. When she went back to Bronx Defenders, she ran a quick computer search and learned something surprising. Wise’s hunch that he had been illegally arrested was right, albeit for a different reason than he suspected. The loitering law Wise had been arrested under some twenty times in two years had been ruled unconstitutional nearly 15 years earlier. Back in 1990, a group of fedup panhandlers from Tompkins Square Park in Manhattan’s East Village had convinced a court that if the Salvation Army could loiter while soliciting funds, on the street or doortodoor, so could they. The court struck the law down.
Five months after meeting Wise, Giroux was able to get all his loitering charges thrown out, including two he accumulated after they met. But now that Wise knew he had been falsely arrested, he wasn’t satisfied with the dismissals. He wanted the city to pay for having abused his rights. Giroux handed Wise’s case over to McGregor Smyth, who runs Bronx Defenders’ civil unit. Smyth in turn enlisted his fellow Yale Law graduate Katie Rosenfeld, who worked at Emily Celli Brickerhoff & Abady, one of the country’s leading civil rights firms.
Attorneys at Bronx Defenders had heard of arrests like Wise’s and seen a few other clients complaining about them. Most were also poor African-American men. The attorneys didn’t know how many had been wrongly arrested under the void loitering law or whether race had anything to do with it. But the lawyers suspected that the problem was far bigger than Wise and the handful of other people they had met. Together, they started working on a scheme to stop the city from enforcing the void law.
THE HISTORY OF NEW YORK’S LOITERING LAWS
Loitering became a crime in New York in the 1870s, when northern elites passed stiff laws ordering officers to clear the streets of idle, mostly Irish and Italian, paupers. The New York laws traced their origins to medieval English anti-begging laws.
The first recorded law aimed at beggars appeared in England after the Black Death wiped out half of Europe’s population between 1348 and 1350. In the pandemic’s wake, the number of beggars mushroomed. Unable to secure from the landed elite the wages they wanted, surviving farm hands fled their jobs. Penniless, they began roaming the country, begging. Pat Smith is a University of Michigan-Dearborn economist who has studied anti-begging laws.
“Feudalistic societies were coming to an end,” she says “and all of a sudden strangers began to appear in villages looking for assistance.” The landed elite responded by banning it.
The beggars probably annoyed them, but their real goal was controlling labor. With so many killed by the plague, the industrializing country needed workers. And with capitalism emerging, beggars could not be allowed to operate outside of the labor market and in blatant defiance of the laws of supply and demand. Doing that would have
“indicted the promise of capitalism,” says Smith. Thus, in 1349 King Edward III passed both the Ordinance of Labour— requiring work and fixing wages – and a vagrancy law that criminalized the refusal to work, as evidenced by begging. The initial punishment was involuntary labor, but by the 16th century, beggar laws called for more aggressive punishments. Offenders were imprisoned, branded on their chests with the letter “V”, whipped before crowds of onlookers, relieved of their ears, even executed. These same laws applied in colonial Ameica, which was controlled by England’s common law system, and in post-independence America. “In general,” William Chambliss wrote in a 1964 scholarly article on the subject that is still cited as authoritative, “the vagrancy laws of England, as they stood in the middle eighteenth century, were simply adopted by the states.” One key difference was that, in America, the laws passed throughout the new nation empowered authorities to arrest people who looked poor or homeless on suspicion of a crime. Probable cause of an actual crime did not factor into the equation.
Except in Maryland, where the vagrancy law initially applied only to “free” blacks, few blacks were charged under America’s begging statutes before 1865. Most were enslaved and therefore not free to roam, begging. When slavery ended, however, the newfound serfdom of blacks made conditions ripe for the rise of a new effort to criminalize them. With the U.S. suddenly facing a glut of jobless, landless blacks and a shattered Southern economy, America wanted to put blacks back to work to avert more economic disaster. Claiming that blacks were too lazy and shifty to work without compulsion, America’s elite called for the extensive adoption of vagrancy laws targeting blacks throughout the South. An 1863 editorial in The New York Timessaid: “If the [Emancipation] Proclamation makes the slaves actually free, there will come the further duty of making them work. That the whole negro race is to remain idle if it should choose so to do, being free, no one can seriously propose.” The editorial called for the application of vagrancy laws to blacks: “If the slaves choose to ‘labor faithfully for reasonable wages’ — very well …. But if they do not, they must be compelled to do it, — not by brute force, nor by being owned like cattle, and denied every human right, but by just and equal laws, — such laws as in every community control and forbid vagrancy, mendicancy and all the shapes by which idle vagabondage preys upon industry and thrift.”
As early as 1865, the kind of laws the New York Times was advocating were being added to statute books throughout the South. Specifically targeting blacks, the laws formed part of the new Black Codes, laws designed to subjugate the freedmen. These vagrancy laws penalized not begging per se, or appearing poor, but idleness itself, or loitering. Under Mississippi’s code, Blacks appearing in public with no “lawful employment or business” or “found unlawfully assembling themselves together, either in the day or night time” were subject to arrest. The arrests carried fines that could only be paid off through labor, essentially re-enslaving blacks to white farmers. Even after the 14th Amendment invalidated the Black Codes, the Freedmen’s Bureau — the federal agency created to protect blacks —backed and enforced vagrancy statutes that purported to be “color blind,” but were almost exclusively enforced against ex-slaves.
NYC CRIMINALIZES LOITERING
Until the 1870s, the NYPD and other urban police forces had helped control the unemployed northern population by functioning mainly as Social welfare institutions, according to the book Paradoxes of Police Work by David Perez. “The police ran the soup kitchens and poor people would sleep in police stations,” says Amy Dru Stanley, a History of Law professor at the University of Chicago. But in the 1870s, after a depression struck, causing unprecedented levels of poverty, elites began to reconsider the wisdom of this police function. Industrialists and wealthy charity reformers wanted police to stop cushioning the blows of unemployment, because they believed it convinced people not to work. Seeing how effective the South was at controlling black labor with vagrancy laws, northern elites decided to adopt them in New York. “Part of the reformers attempt was to make the police not undercut the [labor] market,” Stanley says. A strong, healthy economy depended on every able-bodied person carrying his weight, reformers argued. While men comprised a majority of those against whom vagrancy laws were enforced, poor women were also targeted under vagrancy laws prohibiting prostitution.
After the laws passed in New York, out-of-work men caught sitting on curbs or standing about were beaten with impunity. Bleary-eyed suspects were hauled before a police court justice who served as judge and jury. Trials lasted less than one minute. Convictions under New York’s statute carried a sentence of hard labor hauling coal, breaking stone, laying pipes, and making bricks in upstate workhouses.
Not until the middle of the 20th century did state and federal courts even begin to entertain challenges to the constitutionality of vagrancy laws. The first time the U.S. Supreme Court agreed to hear a case challenging the constitutionality of a vagrancy law was in 1972. The statute was a Jacksonville, Florida ordinance that had been used to arrest African-American men for such crimes as walking at night and “habitually leaving the house without visible means of support.” Concluding in 1972 that the Jacksonville law gave too much power to police and criminalized innocent behavior, the court voted unanimously to void the law.
The decision signaled the end for the old vagrancy statutes. State by state, district by district, the statutes started withering under legal scrutiny, with some being declared unconstitutional. The battle came to New York in 1990, when the panhandlers from Thompkins Square Park took their case to court and won. New York’s anti-loitering law was not only unnecessary, the court found, it also trampled on panhandlers’ First Amendment rights.
On appeal, the NYPD reasoned that the law protected neighborhoods from unruly beggars. But in 1993, the 2nd Circuit upheld the lower court’s decision. Still none of that seemed to matter to some New York City police officers. For decades, they simply continued making arrests under the void law, victimizing at least 22,000.
DECADES OF POLICE MISCONDUCT
Because Wise had been arrested 22 times in 2 years under the void law, he believed he was entitled to damages and his attorneys agreed to seek some, in an amount to be determined at trial. Meanwhile, his attorneys wanted to turn his case into a class action lawsuit, one that would allow them to help other people being arrested under the void law. They were operating under the theory that the city’s enforcement of it was extensive.
Ultimately, they wanted to stop that enforcement. But to achieve this goal, Rosenfeld and Smyth had few options. Convincing a judge to order the NYPD to stop might publicly disgrace the agency and set a legal precedent. But Smyth, who wasn’t available for interviews, and Rosenfeld, a seasoned civil rights attorney, didn’t believe a court order, in and of itself, would be an adequate deterrent.
When I sat down with Rosenfeld in her law firm’s Midtown office on a clear, sunny day in late February, she offered me some insight into their reasoning. The previous court order – in 1993 – hadn’t stopped officers from making arrests. Rosenfeld also says there was no political pressure for the NYPD to stop. The state legislature hadn’t even bothered to repeal the void law from the criminal code. She and Smyth believed that as long as the city didn’t feel a financial pinch or political pressure, it had no real incentive to change. To make the city feel that pinch, they decided to try to get the judge to use her most powerful weapon, a contempt of court judgment. The judgment would do two things: 1) declare that the city had failed to comply with the 1993 order; and 2) immediately empower the judge to assess hefty fines against the NYPD every time an officer enforced the void law. Because a contempt judgment is a judge’s strongest power, it is typically exercised with great discretion. Thus, convincing the judge to issue one would be worthwhile, but difficult.
On June 9, 2005, in federal district court, Wise’s civil lawsuit got underway. His legal team filed a claim there on his behalf and on behalf of others like him. The suit accused the NYPD and the Bronx District Attorney, Robert T. Johnson — whose office had knowingly prosecuted Wise — of violating Wise’s constitutional rights. As relief, Wise’s attorneys asked the court to stop the city from enforcing the law and award him damages. They also made the initial steps required to seek contempt of court.
A series of legal victories came almost immediately. The day after the filing of the lawsuit, the Bronx D.A.’s office capitulated, admitting that it shouldn’t have prosecuted anyone under the law and issued a written agreement to stop doing so effectively immediately. Notices were sent to the Offices of the District Attorneys, to ensure that other New York City D.A.s stopped prosecuting people under the void law too. In addition, for 10 days, the NYPD read notices to officers at roll calls, directing them to cease enforcement. Satisfied that the city would make a good-faith effort to end the misconduct, the judge in the case, Shira Scheindlin, saw no reason to initiate contempt proceedings. She issued an order formerly demanding that the NYPD and the Bronx D.A. stop enforcing the law and she agreed to monitor their compliance. As for Wise’s request for damages, he would have to wait a while longer to learn if he would get any. In September 2005, the city formally denied all 156 of his allegations, indicating that the fight would be protracted.
AFTER VICTORIES, SETBACKS
Confident that there were many more Eddie Wises, Rosenfeld and Smyth spent the next year-and-half working to gather evidence of them. As word of their lawsuit spread through the community, they began collecting and documenting illegal summonses issued to other New Yorkers accused of violating the void law. By late 2006, they’d amassed ample proof the NYPD was still enforcing it. They discovered that since Judge Scheindlin had slapped the agency’s wrist in 2005, officers had issued nearly 800 illegal summonses and over 80 illegal warrants in connection with the void law. Not only were cops continuing to make illegal arrests after 2005, Scheindlin’s 2005 court order didn’t even make them slow down. It was almost as if the judgment never happened. Police had issued almost as many summonses in the 19 months after the 2005 court order as they had issued in the 19 months before it. As incredible as the figures were, Rosenfeld and Smyth weren’t surprised. The NYPD had been enforcing the void law for well over a decade. Why would it suddenly stop now?
Armed with reams of documents proving continued wrongdoing, the attorneys returned to Judge Scheindlin in November 2006. Eager for a contempt judgment, they again broached the subject with the judge, outlining their rationale. In its defense, the NYPD again claimed that it was making a sincere effort and just needed more time. To demonstrate its honest intentions, the agency rolled out another proposal to end its enforcement of the law. “I totally reject that they made a good faith effort,” says Rosenfeld of these plans. “By that point there was a lot they could have done,” she says, noting that they could have fined precinct supervisors. Nevertheless, the court refused to allow Wise’s team to file a contempt motion and, again, ordered the city to stop enforcing the law.
Scheindlin’s rejection sent Rosenfeld and Smyth back to their offices empty-handed. But their bad day in court was not a bad day for Wise. The same day, the NYPD made him an attractive offer. The city would pay him $100,001, if he dropped his class action suit. By his own estimates, Wise earned $10,000 a year from his assorted street hustles and typically carried his net worth in the pocket of a pair of jeans he wore religiously. Wise did what Wise had to do. He took the offer. In the spring of 2007, New York magazine profiled the ex-hustler. He’d opened his first bank account and resigned from his car-parking gig.
I don’t know what the lawyers for the city thought about the case, because they never returned my requests for comment. But if they thought they had found a way to end their legal troubles, they were wrong. Rosenfeld and Smyth were just starting to grasp the scale of what was happening. By now they knew there were thousands of falsely arrested people. Data they received from the Office of Court Administration (OCA) showed that between October 1992 and December 2005, the NYPD had made 3,473 arrests, district attorneys had filed 2,609 criminal prosecutions — resulting in 260 convictions — and courts had issued 748 bench warrants, all under the color of the void loitering law. Victims had paid hundreds of thousands of dollars in cash bonds, fees, fines and surcharges. And more victims were stepping forward to ask Bronx Defenders for help. One of them was Xavier, an African-American teenager who was standing on a corner in the Bronx, talking with friends, when the police approached him and told him to “move along.” When he asked why, an officer said, “You can’t be here” and issued him a summons. Because Xavier didn’t go to court to answer his summons, police put a warrant out for his arrest. He learned about it three years later when he applied for a job and didn’t get hired.
With victims like Xavier asking them for help, the lawyers weren’t about to shelve the case just because Wise was leaving it. They simply found someone to replace him as their lead plaintiff. They chose Michael Brown, a 46-year-old African-American man who’d learned about the lawsuit through Wise. While panhandling on 149thStreet and Courtlandt Avenue in the Bronx in June 2003, a police officer approached and arrested him. Pleading guilty, Brown was sentenced to a conditional discharge of one year. As long as he wasn’t arrested for begging a second time within the year, the charges would be dropped.
MORE VOID LAWS, NEW ILLEGAL ARRESTS
With Brown installed as their new lead plaintiff, the legal team got back to its core mission: finding evidence of the full scope of the department’s misconduct so they could finally end it. They would spend several more months focusing on the task, and discovering plenty more evidence, return to court to present it to Sheindlin again. But again they would walk away with more empty promises from the NYPD. Further, they would uncover something even more ominous about the NYPD in the next few months. The agency’s problem with arresting people under void laws wasn’t limited to the loitering law.
People had been showing up at the Bronx Defenders’ office complaining that they had been arrested under a void anti-cruising statute aimed at gay men suspected of soliciting sex on the street. It had been struck down in 1983, by a court reasoning that because consensual sodomy was not a crime, conduct in anticipation of the act of consensual sodomy – cruising – wasn’t a crime either. In addition to the void anti-cruising statute, officers were arresting people for failing to give them a satisfactory explanation of their presence in a transportation station. That void law had been struck down in 1988, by a New York Court of Appeals ruling declaring that New Yorkers had a constitutional right not to answer questions posed by law enforcement officers.
OCA data showed that the NYPD had been enforcing the anti-cruising statute, in particular, at an alarming pace. Between 1983 and 2007, nearly 5,000 people were arrested and prosecuted under the void law, with roughly half resulting in convictions. Between 1999 and 2007, more than 9,500 summonses and 5,300 bench warrants were issued as a result of the void statute. In total the city collected more than $300,000 from enforcement of the void law.
Carrying this evidence, Rosenfeld and Smyth returned to court in March 2008 and filed a second class-action lawsuit. Initially, it accomplished little. By now, their 3 years of litigation with the NYPD had almost turned into a farcical routine. Each time they returned to court to complain about the NYPD’s misconduct, Scheindlin would reaffirm her order that the NYPD stop enforcing the law. The NYPD would write a memo and issue more notices. Sometimes they would make a bit more effort. For example, once, they warned officers that they could be disciplined for any future arrests or summonses and empowered supervisors to threaten beat cops with lost vacation days. Another time, they issued a lesson plan to their commanders reiterating the unconstitutionality of the three laws and followed up with an officer training. But each time, the rank and file would ignore the directive. And the whole cycle would repeat itself, starting with a new complaint by victims. Only after the fourth year of this, did the momentum shift.
TIDE SHIFTS AGAINST THE NYPD
In May 2009, when Rosenfeld and Smyth returned to court for the fifth time to fifth time to the enforcement figures for all three void statutes were “trending up,” Scheindlin showed interest in finding the police in contempt, inviting the plaintiffs to commence the proceedings. Ostensibly, she was inviting them to give her a reason to punish the city, but Rosenfeld and Smyth elected not to file for contempt.
Surprised by this, I ask Rosenfeld why and she says it was so long ago that she doesn’t remember and can’t find the court transcripts that might refresh her memory. But lawyers sometimes reject generous offers from judges in order to gain leverage that they can apply elsewhere. It’s frustrating to be uncertain about this. But in this case, I suspect that was their rationale.
When Rosenfeld and Smyth rejected Scheindlin’s offer, the farce of trying to make the NYPD comply resumed. But two breakthroughs occurred in short order. First, in 2009, NYPD Commissioner Raymond Kelly finally agreed to investigate and monitor the rank and file to prevent the misconduct. He enlisted Internal Affairs, signaling that, at long last, the department was ready to acknowledge the depth and extent of the problem. Second – and more importantly – Rosenfeld and Smyth made a discovery that helped explain why none of the NYPD’s directives had worked.
“We were deposing an individual police officer who had issued a recent summons,” Mcgregor Smyth told WNYC’s Andrea Norris this past February. “We asked him why he chose this charge, why he even went forward with this, and he mentioned this unofficial cheat sheet that he had and pulled it out of his pocket.” The cheat sheet contained a quick and dirty version of the laws that cops typically charged people with. There were dozens of versions in circulation. They were handed down from one generation to the next. The sheet was especially useful for rookies still learning their jobs, which was when the officer being deposed had been given his. Among its contents were the unconstitutional loitering laws. “It was an epiphany for us in terms of why these practices had been so persistent,” Smyth said.
The lawyers informed the NYPD Brass that they knew about the cheat sheets. They wanted the department to perform a full review and accounting. How many sheets were in circulation? How many contained the void laws? The NYPD balked at answering those questions, saying it would be too costly, too time consuming to collect and review the sheets. Moreover, they were not official NYPD documents. Therefore, the NYPD could not be required to produce them, the city’s lawyers argued. “We had to go and get a court order forcing them to do this precinct by precinct,” Smyth told WNYC. By the time the NYPD had completed its review process, it had found own nearly 1,400 cheat sheets containing the void laws. Not only were there cheat sheets advising officers to arrest and summons people under the void laws, Rosenfeld had discovered more summonses issued under them. Between June 2007 and February 2010, they discovered that nearly 500 more had been issued. Presented with yet another batch of them, in April 2010, Judge Scheindlin threw up her hands. “How in the world these keep getting issued, I don’t understand,” she said.
NYPD FOUND IN CONTEMPT
The additional summonses were the final blow. On April 26, 2010, Scheindlin placed the city in contempt. From that day forward, any further enforcement of the law would carry a $500 fine. Every summons issued 90 days after the order carried a $1,000 fine. Every 90 days thereafter, the fine would increase again. The city could face a maximum$5,000 fine for every single summons issued.
Scheindlin’s opinion and order denounced the NYPD’s “generally lethargic approach to compliance with the Orders.” She said that the department had challenged the integrity of the court and offended the rule of law. Allowing the city to go unpenalized after it had illegally punished so many New Yorkers would have been inconsonant with the principles of democracy, the order said. Moreover, the NYPD’s efforts to repair its wrongdoing had come at “the prodding of plaintiffs, and/or under the threat of sanctions.” And even then, Judge Scheindlin added, the absence for more than four years of the NYPD’s internal affairs bureau sent a clear message to beat cops that the disciplinary process was both “discretionary and toothless.”
After receiving Scheindlin’s orders, the parties entered months of negotiations. They worked out an agreement ensuring that enforcement ceased, that plaintiff’s criminal records would be cleared of the charges, and that plaintiffs would recoup the money they lost fighting the charges. In February, Scheindlin signed an order approving that settlement. Under it, the department agreed to pay its victims $15 million. In addition to paying this, the city has also agreed to submit to training, monitoring and continuing investigations by Internal Affairs. Since the day Scheindlin found the NYPD in contempt, no further summonses have been issued, according to Rosenfeld.
HOW DID THIS HAPPEN?
It took Scheindlin five years to find the police in contempt of court, but Rosenfeld believes the course of action she adopted throughout the case was prudent. Contempt judgments against government agencies are rare, Rosenfeld says. This is because judges prefer for the agency in question to correct its behavior independently. When agencies pay fines for breaking the law, taxpayers suffer. “She’s a rigorous person,” Rosenfeld says of the judge. “She took a common sense approach to this case.”
Nevertheless, by the time Scheindlin ordered the NYPD to pay $15 million in fines, the agency had wrongfully arrested at least 22,000 people and issued more than 13,000 summonses, according to data from the Office of Court Administration (OCA). Those arrests and summonses occurred between 1999 and 2007, the only period for which OCA had data, and therefore likely underrepresent those victimized between 1983 and 2010, the period in which the void laws were being enforced. The records also show that D.A.s from the five boroughs had sought more than 7,500 prosecutions and secured nearly 3,000 convictions, and judges had issued more than 7,000 bench warrants. African-Americans and Latinos comprised 70 and 17 percent of those arrested, 70.5 and 18 percent of those prosecuted and 75.5 and 14 percent of those issued summonses under the begging statute, between 1999 and 2009. An overwhelming number of those criminalized under the law were poor and homeless.
Jean Rice is a homelessness activist and a spokesperson for the recently formed Committees United for Police Reform (CPR), a coalition to end discriminatory policing practices. He is a 72-year-old African-American man who studied Criminal Justice Administration at John Jay College before becoming homeless. Rice followed the loitering cases closely and speaks about Judge Scheindlin with glowing admiration. When I sat down with him at the Bronx office of Picture the Homeless, a grassroots organization founded and led by homeless New Yorkers, he gave me his take on the issue. In light of the force’s “zero tolerance for street crime” Rice, a politically astute man with a dry wit pointedly asks, “Why didn’t they impose the theory internally?”
In 2008, Rice says he was peaceably “soliciting the public” on 42nd and Vanderbilt in Manhattan, when an officer with whom he was on friendly terms approached him. The cop told Rice he had orders from his higher ups to clear the streets in preparation for a visiting dignitary. Using tactics he learned at a panhandling training offered by the Center for Constitutional Rights, Rice informed the cop that he wasn’t “obligated to follow an illegal law.” He was nevertheless issued a begging summons.
The way that the criminal justice system responded to the improper charges against those like Rice is very interesting. Theoretically speaking, there were safeguards in place to prevent NYPD’s misconduct. Practically speaking, they often failed.
For example, very early on in the case, Scheindlin ordered the NYPD to remove the loitering charge from its drop down menu of possible arrest charges, Rosenfeld says. “When officers went to enter a loitering arrest [under this statute] they would get a message that they couldn’t,” she says. That should have stopped the officer from sanctioning anyone under the void law, but it didn’t. They just started issuing summonses, a write-in document, issued on the street, instead.
Summonses were harder for the brass to monitor and control. They also generated fines and could ultimately lead to an arrest anyway, Rosenfeld notes. If the summonsed person missed his or her court date, the police would issue a warrant for his or her arrest. “A lot of people miss court,” Rosenfeld says. “So it’s a really pernicious entrée into the justice system for something very small. You get a ticket, you forget to go to court, all of a sudden you have a warrant out for your arrest.”
Another safeguard that failed to function properly were New York City’s district attorneys. In the face of centuries of judicial precedent to the contrary, the prosecutors in all five boroughs had insisted on pursuing convictions under the anti-begging law, for almost 16 years, until as late as October 2006. The D.A.’s rationale
was that a federal appellate court decision had no relevance in New York State Court. This reasoning didn’t make sense, because, since the founding of the U.S., federal courts have always had the right to decide which state laws violate the Constitution.
And the final safeguard that failed were New York State judges. They should have realized that police and prosecutors were making illegal arrests. Instead, some continued to convict people, implicitly underwriting the D.A.’s flawed interpretation of the law.
THEORIES OF MOTIVATION
One reason that some police officers might have continued to enforce these void laws was that until August 3, 2010, the legislature refused to repeal them from the statute books. The failure to repeal them meant they remained in the patrol guides at police stations. The first bill aiming to repeal the statutes came in 2008 – a full 25 years after the first of the void laws were declared unconstitutional. Proposed by Daniel O’Donnell, New York’s first openly gay state assemblymen, the bill died in the Republican controlled Senate. After O’Donnell and Manhattan Democrat Senator Eric Schneiderman re-introduced the bill in 2009, it again died in the Senate in early 2010. Only after Judge Scheindlin handed down her contempt order in April 2010, did the bill get the support of the NYPD, which was indispensible to its passage.
For almost 30 years after the courts began striking down these laws, Rice and others had continued to be charged with offending them. I asked Rice why he believes that happened. He traces the problem back to Mayor Rudy Guiliani’s administration. Since then, “the rank and file police department has seen themselves as being above the law,” Rice says. Under Guiliani’s administration, the NYPD was marred by the heinous 1997 sexual assault of Haitian immigrant Abner Louima by a pair of officers in a station bathroom. Rice predicted that police violations of citizen rights would only become worse. “The homeless population, by virtue of their condition, are living on the very streets where the police are applying unconstitutional behavior,” Rice explains. “It’s the first step toward totalitarianism. We’re like the Paul Revere for the society. But because the homeless population has been criminalized our word has no credibility. Nobody heeds the trumpet call.”
Katie Rosenfeld offered a slightly different explanation for the city’s protracted enforcement of the three unconstitutional laws. Race played a role, she says, noting that the same poor black and Latino men targeted by the NYPD’s stop-and-frisk operations were targeted under the void law. But Rosenfeld also says enforcing the law “accomplished some law enforcement goal that NYPD was very attached to.” One of those goals appears to have been to gentrify New York City. Indeed, former Mayor Rudy Guiliani is generally credited with orchestrating a militant urban renewal campaign that altered the look, feel and economy of New York. “The police were deployed as a force to clean up the city,” Rosenfeld says. “The ugly side was picking up little people and getting them out of the way.”
Another possible explanation, Rosenfeld says, is that some officers made the arrests because they were desperate to meet their quotas. Even after a chorus of NYPD whistleblowers has said they are punished for failing to make a required number of arrests, summonses, and stop-and-frisks, the NYPD maintains that quotas don’t exist. Rosenfeld doubts that. “No one will ever say they exist,” she says “but there are certainly reports generated each month and that has to be for a reason.”
In as much as Judge Scheindlin’s scathing rebuke of the NYPD paved the way for the multi-million dollar settlement agreement, it also gave an already embattled police department a window through which to gracefully slip away from what would have been another racially charged public proceeding. If the case had gone to trial, Rosenfeld would have argued that the NYPD’s enforcement was racially discriminatory and the city would have had to respond to that. Another thing the NYPD may be able to avoid is paying very much to its victims. Because so many of them were poor and transient or plain homeless, it’ll be difficult for the attorneys to find them and direct them to their payouts. By now, their mailing addresses might have changed. Their phones may have gone out of service. Some never had phones to begin with. Others may be easy to contact, but they may have warrants out for their arrest and fear getting involved with the police.
To ensure the maximum number of recipients is reached, the city is helping locate updated addresses and posting notices in all government offices serving poor and homeless people. Additionally, the plaintiffs have hired Rust Consulting, a firm that specializes in managing class-action settlements. The firm has launched a campaign to contact thousands of city service providers that work with these populations. What happens to the money that is not claimed will be up to the judge, but Rosenfeld senses that, in keeping with similar situations she has encountered, the funds will be distributed to a non-profit that serves the population representative of the class.
The trouble I had finding Wise illustrates the difficulty the attorneys will have finding the plaintiffs in the class. On an early March afternoon I drove to the Fordham section of the Bronx, looking for him. His name had come up in nearly all of my interviews. An October 2009 news story I found said Wise had returned to Fordham Road with a new hustle — holding the door at a check-cashing store. And everyone I spoke to assured me he was still around. Katie Rosenfeld told me that since he was arrested again under the void begging law after his 2007 settlement, he was scheduled to receive a pay out as part of the 2012 class-action settlement. I’d also found an estranged friend of Wise’s named Ross Biernick. Last he’d heard, Wise had bought his uncle a mobile home. The money was gone. Wise was back on the streets.
I parked my car on 189th between Webster and Park, the stretch where Wise and his crew once operated a car-parking hustle. Jennifer Gonnerman, the journalist who wrote the New York magazine story on Wise, had indicated in an e-mail to me that since business slowed in the area, his parking crew might’ve dispersed. I looked around. Nothing. I got out and walked up and down the block. It was a crisp and
sunny day—as good a day as any for hustling. Nothing. I asked a few people who work in businesses on the street if they’ve seen or heard of Wise. I’m sure I looked suspicious. Again, nothing.
Standing in the middle of the street without a single lead to follow, it occured to me that I was only looking for Wise so I could finish this story. It seemed fitting to end with him. In light of the vagrancy law’s sordid early history, Wise’s score symbolized poetic justice eight centuries in the making — a law originally intended to forcibly compel able-bodied serfs to work for next to nothing had furnished Wise with a six-figure apology courtesy of the city.
Wise couldn’t provide the closure I was searching for, though. No matter what happens with the lawsuit he started, the criminalization of poor black men continues to be treated like a legitimate, even necessary policing protocol. Until that practice ends, there is no closure.
I drove back home.