Activists Fight Back After NYPD Turns Prosecutor To Avoid Civil Suits

In almost every criminal case in New York City, the police department makes an arrest, and it’s up to the borough’s District Attorney to decide whether to prosecute. However, since the beginning of 2016, the Manhattan DA has taken the extraordinary step of allowing the NYPD’s Legal Bureau to prosecute some cases in court. Why? So the NYPD, according to its own leadership, can avoid “frivolous lawsuits” by persuading protesters to admit their guilt in exchange for having their charges dropped. This would shield the NYPD from future civil rights suits alleging the arrests were illegal. In fiscal year 2016 alone, the city paid out more than $228 million in settlements for police misconduct.

While allowing the police to act as prosecutors is more common elsewhere in the state, it’s highly unusual in New York City. But in February 2016, the NYPD and DA’s office signed a memorandum of understanding authorizing the NYPD to act as prosecutor in specific cases. In practice, the NYPD has overwhelmingly used this prosecutorial discretion to target protesters — but now those protesters are fighting back.

Late last week, after a years-long legal battle, Arminta Jeffryes, 24, was convicted of jaywalking during a 2016 protest against police killings of black and brown people. Only six people were charged with jaywalking in New York City in 2016.

But the case only went to trial because Jeffryes wanted to challenge the fact that the NYPD had acted as prosecutor. She and fellow protester Cristina Winsor (who was arrested at an earlier march for obstructing traffic) kicked off a movement that continues to challenge this arrangement. In November 2016, Jeffryes and Winsor filed a lawsuit against the NYPD and the Manhattan DA’s office, alleging the unconstitutionality of having prosecutors cede their sole responsibility to the police. Last September, a Manhattan Supreme Court allowed the lawsuit to move forward after the city tried to get the case dismissed.

“It is surely unfair if the prosecutors are concerned about protecting their employer and co-employees from civil liability, rather than being solely concerned about achieving justice for the people of the county who elected the District Attorney to accomplish that objective above all else,” Justice Lucy Billings wrote in her ruling.

The office of Manhattan DA Cyrus Vance declined a request for comment from The Appeal.

As their challenge moved through the court system, both Winsor and Jeffryes still faced criminal charges. Winsor was acquitted at her trial in October, where a judge berated the NYPD for inaccurately recalling the events which led to her arrest, statements that were easily disproven by video.

In late January, it was Jeffryes’s turn. The NYPD arrested Jeffryes after she led a group of protesters to a median in the middle of a street in lower Manhattan on March 7, 2016. The protest was part of #PeoplesMonday, a weekly march to businesses and public spaces throughout the city to highlight police killings. That night’s protest was held in honor of Gynnya McMillen, a black teenager who died in a Kentucky state-run juvenile detention center. Throughout the protest, Jeffryes helped marshal the protesters, stopping them when they didn’t have a green light, and giving the signal when it was safe for them to go.

But instead of focusing on the basic fact of whether Jeffryes violated any traffic laws, the NYPD’s case against her centered on how uncomfortable the protest had made police officers feel and whether it was meant to “intimidate” them.

Testifying against Jeffryes in court was NYPD Captain Paul Lanot, who was working out of Manhattan’s Seventh Precinct and oversaw the arrests that evening. He described an unruly scene, where the NYPD made the decision to arrest Jeffryes not because she was jaywalking, but instead to “correct her behavior.” The NYPD went to great lengths to make clear they weren’t trying to “stop” the ongoing protest, which would violate the participants’ constitutional rights, but simply trying to police their activities. Captain Lanot later admitted, however, that he considered arresting Jeffryes an effective way of stopping the protest because it would send a message to protesters.

NYPD attorney Neil Fenton repeatedly raised Jeffryes’s prior cases, in which she had been arrested as part of protests, including cases that had been dismissed. That tactic brought repeated objections from her attorney, Martin Stolar, which were sustained by Judge Charlotte Davidson. Stolar called Jeffryes’s fellow protesters to the stand to testify that she had helped marchers obey traffic laws. But on cross-examination of the protesters, Fenton questioned the basis of chants that had offended the police, such as “NYPD — Shut it down,” leading to surreal moments in the courtroom.

When Fenton asked a fellow protester who served as a witness why protesters would chant “Fuck the police,” she responded that they did so when police were violent at protests. When the protester offered examples of violence by the NYPD at protests, Fenton objected, leading to a reprimand from the judge.

“You’re objecting to her testimony?” asked an astonished Judge Davidson.

When Jeffryes herself took the stand on February 1, Fenton again cross-examined her about the protestor chants.

Fenton asked Jeffryes what “Shut it down” referred to, and if it might have referred to New York City streets. She said he was misinterpreting it.

When her own lawyer questioned her about the chant, Jeffryes elaborated. “Black bodies laying for four hours dead in the street,” she said. “Black bodies in the stairwells. Black bodies dead on their grandmothers’ couch. That’s what we’re trying to shut down.”

A frustrated Fenton objected and the judge overruled him.

After 11 minutes of deliberation, Judge Davidson returned with a guilty verdict. Jeffryes was given time served (at the precinct, the night of the arrest) and an $88 surcharge. Speaking with The Appeal after the trial, Jeffryes said she wasn’t surprised by the verdict and that she is hopeful NYPD prosecutions of protesters will not dissuade people from taking to the streets.

“They arrested me to set an example,” said Jeffryes. “They think they can arrest me and the whole march would shut down. Nah. The march continues and doesn’t end until we say it ends.”

Asked for final thoughts on the trial, Jeffryes emphatically said, “Fuck the police.”

Stolar, Jeffryes’s attorney, said he was disappointed that the court didn’t consider the possible First Amendment violations implicit in the arrest, especially because the police had openly admitted they made the arrest to send a message to the protesters. He said he’s now looking forward to the ongoing lawsuit that Winsor and Jeffryes filed in New York Supreme Court, challenging the practice of the NYPD prosecuting these cases.

“We have a [NY] Supreme Court justice who has said it’s unethical for the police department to provide their own lawyers to prosecute summons cases,” said Stolar, “and she wanted to see what would happen with the criminal cases before moving forward. The whole reason we went to trial in what is essentially a silly jaywalking case, is to preserve the issue as to who is the prosecutor and whether [Manhattan DA] Cyrus Vance can delegate prosecution, which he is elected to do, to people who are hired as police officers.”