15,000 Unlawful Arrests at Issue

Somebody at the New York City Police Department should probably be appointed to monitor the appellate courts so that somebody can tell the officers in the front ranks when to desist from enforcing unconstitutional laws. That's the lesson of a ruling on April 28 by US District Judge Shira A. Scheindlin, certifying a class action lawsuit against Commissioner Raymond Kelly and the NYPD seeking an end to enforcement of the unconstitutional loitering laws that the state's highest court long ago struck down as unconstitutional. The State Legislature has never revised them to conform them to those rulings.

In 1983, in a Lambda Legal case, People v. Uplinger, the Court of Appeals struck down a section of the state penal code under which the Buffalo district attorney was prosecuting Robert Uplinger for allegedly asking an undercover cop to go home with him for oral sex. The court found a violation of freedom of speech, noting that what Uplinger was alleged to have asked the cop to do was perfectly legal – the same court struck down the state's sodomy law a few years earlier. (That part of the penal code too was never revised by the Legislature – until the new millennium.)

In 1988, the Court of Appeals struck down another section of the penal code that made it a crime for somebody to be present in a transportation facility who is “unable to give a satisfactory explanation of his presence.” The court found it unconstitutional to abridge a citizen's right not to answer questions from law enforcement officers, when the alternative is being barred from a public accommodation, which transit hubs are.

Despite these two decisions, city police officers have continued to enforce both provisions. According to data presented by the plaintiffs, there were 4,750 prosecutions under the sexual loitering statute from 1983 to 2007, and 91 prosecutions under the “unexplained presence” statute from 1988 to 2007. Of course, the number of arrests under the two statutes – versus prosecutions – was vastly higher. The complaint alleges that number is more than 15,000. Even after the NYPD was served with this complaint and had stipulated that it would stop enforcing these statutes, there have been several dozen more arrests reported under them.

Looking just at the sexual loitering statute, the statistics recited in the case show that there were 2,550 individuals convicted of violating the unconstitutional provision, who were hit with fines totaling $192,981. The issue before Scheindlin was whether to certify the case, which had been filed on behalf of two indigent men arrested under these laws, as a class action, representing the thousands of people who have been arrested, held in jail, convicted, and/or fined under these laws since they were invalidated. Statutes of limitations would apply to the efforts of some of those individuals to seek damages, but surely most would want their criminal records expunged. And relief would also likely involve the NYPD instituting effective training and disciplinary enforcement against offending cops.

Scheindlin spent most of the opinion looking at the issue of whether this should be a class action law suit, and whether these two indigent men can serve as effective class representatives. They are represented, however, by veteran class action attorneys, making it likely that the lawyering will be first-rate. Since the suit aims to vindicate constitutional rights, and will most likely be settled, fees for the attorneys can be negotiated out of the settlement. Scheindlin made just this point in the course of dismissing the city's argument that the two named plaintiffs were inadequate class representatives, saying its posture was “disrespectful and blatantly self-serving.” She noted that because the laws in question were most frequently enforced against “the vagabonds, the homeless, and the destitute,” if these two plaintiffs could not represent the class, “the claims of those even worse off would inevitably go unheard.” She also noted that gay men caught up in the enforcement of the sexual loitering statute might be unwilling to come forward as class plaintiffs.

Class attorneys are from the firm of Emery Celli Brinckerhoff & Abady, and Earl S. Ward, J. McGregor Smyth, Jr., and the Bronx Defenders. Assistant Corporation Counsel Rachel Seligman Weiss of the city Law Department represents the defendants.

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