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Police Accountability and Public Defender Groups Demand Transparency on NYPD Gang Policing

Police Accountability and Public Defender Groups Demand Transparency on NYPD Gang Policing

Since its initiation in 2013, the NYPD’s gang policing program has operated with little outside scrutiny. Based on evidence it has kept almost entirely hidden from public view, the police have targeted and surveilled entire social networks inside low-income communities, breaking down doors in pre-dawn military-style raids that have resulted in over 2,000 arrests in just the past year and a half.

Instead of local district attorneys charging the young men and women arrested by the NYPD, most of the indictments are in the form of federal RICO charges, which tie alleged members of the “gang” or “group” to the most serious offense any member has committed. Because of the severity of the federal sentences faced by many defendants, the overwhelming majority take plea deals, meaning that the NYPD and federal prosecutors often need not divulge evidence they have against these alleged “gangs.”

But some level of transparency may soon come to the NYPD’s gang policing program. In a letter sent February 5, a coalition of more than 25 police accountability and public defender groups called on the City Council to hold hearings about the constitutionality of the program, which uses a secret database of “gang members” to target communities of color and, in particular, those who live in public housing. The NAACP’s Legal Defense Fund (LDF) and the Center for Constitutional Rights (CCR) sent a separate letter on the same day, urging the council to look into whether individuals can challenge their inclusion on a gang database, and whether this violates their “due process” rights.

“Right now, the program is being conducted with zero oversight,” Marne Lenox, an attorney for the Legal Defense Fund told The Appeal. There are “zero safety precautions to ensure that folks aren’t erroneously in the database, and it exposes the NYPD to zero accountability for their policing actions.”

The letter from the police accountability and public defender groups is addressed to Council Member Donovan Richards, who chairs the council’s Committee on Public Safety.

“We believe that, like the widespread stop-and-frisk strategies that the NYPD relied upon in the recent past, gang designations are likely to be overinclusive and inaccurate,” the letter says. “Unlike the stop-and-frisk records, gang databases are secret, do not require even a suspicion of criminality, and are often not subject to judicial review. Indeed, the NYPD has not publicly disclosed whether there is any way to challenge gang designations, or whether people may ‘age out’ of their designation, for example, as they mature and go away to college.”

CUNY law professor Babe Howell has researched the NYPD’s gang policing program for years, and has traced how the NYPD turned to large-scale gang raids shortly after a federal judge declared its stop-and-frisk program unconstitutional.

The advocacy and legal groups also point out that the NYPD’s designation of immigrants as potential gang members could make them targets of Immigration and Customs Enforcement (ICE) through information sharing between the NYPD and ICE, even though New York City bills itself as a “sanctuary city,” in which that is, for the most part, not supposed to happen.

In Chicago, which is also a “sanctuary city,” a gang database error led to one man’s violent arrest by ICE, which may have accessed the information through the National Crime Information Center. New York City’s detainer lawprohibits this type of information-sharing, but advocates say that without knowing exactly who is on the database and who has access to it, holding the NYPD accountable is nearly impossible.

The letter from LDF and CCR, which is in support of the letter sent to Richards, questions the constitutionality of the program.

“The geographic targets of the raids, coupled with the resulting racially disproportionate arrests and the NYPD’s past conduct, warrants public hearings to determine whether the City is engaged in unconstitutional actions,” the letter reads.

Ritchie Torres, who chairs the council’s new Committee on Oversight and Investigations, told The Appeal that he’s open to holding joint hearings with Richards’s public safety committee on the NYPD’s use of gang policing.

“We’re seeing more gang takedowns than ever before, on a scale we’ve never seen before,” Torres said. “These takedowns have been so large that it leads to questions of whether we’re targeting the drivers of violence or are we casting the net too wide? If we’re casting the net too wide, then we’re undermining the end goal of criminal justice reform and of curbing over-criminaliztion.”

In previous City Council oversight hearings, the NYPD has been less than forthcoming about its surveillance and policing practices. Torres doesn’t think this time would be very different.

“The NYPD in my experience is almost never forthcoming,” said Torres. “It would be wishful thinking that they would. There will most likely be intense resistance to oversight.”

Councilman Richards declined to comment for this story.

Similar calls for transparency are also being made in Chicago, where activists and researchers have recently launched a reporting project to shed light on its gang database, in which 95 percent of the 65,000 individuals included are Black or Latino.

On February 7, the coalition of groups calling for more transparency into the NYPD’s gang policing program gathered on the steps of City Hall to demand that the city council begin oversight hearings. The LDF’s Lenox insists this is just one way the groups will attempt to bring transparency to the NYPD’s use of gang policing and further steps may be necessary to force the police to release more information.

Also that day, Legal Aid announced a new initative, dubbed the “Do It Yourself FOIL Campaign,” which will encourage and help people who think they might be on the NYPD’s gang database to use the Freedom of Information Law in the hope of shedding even more light on the secret database.

New Orleans Strip Club Workers Battle ‘Age Ban’ In Federal Court

Dancers and allies protest Act №395
Photo courtesy of BARE NOLA

New Orleans Strip Club Workers Battle ‘Age Ban’ In Federal Court

Last week, days after dancers took to the streets of New Orleans to protest recent police raids on the city’s strip clubs, the state agency that led them was in the Fifth Circuit Court of Appeals fending off a challenge to a Louisiana law barring 18-, 19-, and 20-year-olds from working as strip club dancers. In 2016, long before the raids, three dancers who lost their jobs because of the age ban sued the Louisiana Office of Alcohol and Tobacco Control (ATC) arguing that new age limits violated their labor rights.

The age ban, known officially as “Act № 395,” passed the state legislature in 2016 with little opposition, pushed by social service agencies that alleged a link between strip clubs and sex trafficking — the same allegations that prompted January’s raids. In March 2017, a federal judge issued a temporary injunction, preventing the age ban from being enforced; the state is now appealing.

After oral arguments before the federal appeals court on February 7, the dancers’ case is now in the hands of a three-judge panel.

Dancers in New Orleans reject the claim that their workplaces contribute to trafficking. But dancers also made clear in their suit against the ban and later, in their January protests, that the ban will harm them and their families.

“Prior to my work as an erotic dancer,” plaintiff Jane Doe 1, age 20, declared in a court filing, “I helped care for my disabled mother.” She said in order to care for her mother, she worked multiple jobs, sometimes up to 120 hours each week. As a dancer, she said, she could set her own schedule, and earned enough to meet her obligations and save for retirement. If the age ban survives the legal challenge, Jane Doe 1 said, she would be forced to move out of state.

Jane Doe 2, age 18, from Baton Rouge, told the court that she has been on her own since both her parents died of cancer. Benefits she received after their deaths, she explained, ended when she graduated high school. Dancing is what allowed her to pay her college tuition.

Jane Doe 3, age 19, from New Orleans, has a 1-year-old daughter. After the ban went into effect, she said, “I was forced to stop working as an erotic dancer.” She said that the shot girl job — selling shots of liquor to club customers — she took in its place halved her income.

What the ban targets isn’t trafficking, the dancers argue, but rather their independence as working women. “I believe that Act №395 makes adults aged 18, 19, and 20 more susceptible to harm,” Jane Doe 2 said, because “it eliminates a legal job.”

The dancers sued ATC as Jane Does in order to protect themselves from being outed in the broader community — a move the defendant, ATC Commissioner Juanita Marine-Lombard, attempted to block. “These plaintiffs are not minors,” she declared in an opposing motion, “nor are they the victims of sexual assault or abuse, nor are they incompetent persons requiring extraordinary protection. Rather, they are women over the age of majority who have voluntarily engaged in the employment of erotic dancing in clubs, and who have voluntarily filed this lawsuit to challenge the constitutionality of a law.”

Yet the basis for the law is that adult women ages 18, 19, and 20 lack the maturity to make the decision to work as dancers. In their own motion, the dancers replied, “Defendant’s Opposition is all the more curious in light of — and tellingly inconsistent with — the State’s purported concern for ‘young women’ in the erotic dance industry.” Further, they stated, “Defendant has apparently seized upon an opportunity to further chill the exercise of Plaintiffs’ constitutional rights” — by making an attempt to halt the case unless the dancers provided their names.

A decision on the ban is not expected for some months, but during Wednesday’s arguments, two of the judges appeared to side with some of the dancers’ complaints. The state claimed, for instance, that the ban is clear about what conduct is prohibited. As proof, the state’s attorney, Scott Bergthold, ran through a rapid-fire list of what items women working in clubs are required to wear so as not to run afoul of the law. But Judge Edith Brown Clement pointed out that the ban was far from clear. “You’re not defining ‘cover’!” she pressed. “Covered totally? Cover a little bit? A little pastie cover? Or a bikini top cover?”

Bergthold, who represented the state in oral arguments on February 7, has deep roots in the Christian right, and has made a career of defending laws meant to shutter adult entertainment businesses. He is a graduate of the law school at Regent University, which described its alumnus as having “a God-inspired passion for the rule of law that has equipped him to be a Christian leader who is changing the world.”

Bergthold now works for Louisiana Attorney General Jeff Landry, defending the state’s age ban on dancers. Back in 2016, Landry assembled his own task force of state agents in New Orleans, claiming that under Mayor Mitch Landrieu, New Orleans had become “more dangerous than Chicago.” Landry’s agents continued to make arrests even after a judge said Landry lacked such authority in New Orleans. The task force was eventually disbanded in June 2017.

Bergthold was also hired last October by Landrieu to advise the city on a study of Bourbon Street strip clubs. The Chattanooga-based lawyer represents city governments from California to South Dakota to Florida, seeking to eliminate strip clubs and other adult businesses. A Knoxville City Council member once described Bergthold as “just a franchisee [who] goes around from city to city and sells these laws, and municipalities pass them, and then we hire him to represent the city at $200 per hour.” Bergthold currently holds a $15,000 contract with the city of New Orleans.

On the same day Bergthold defended the age ban in federal court, the New Orleans City Planning Commission proposed a “soft cap” on strip clubs. Bergthold was contracted to advise the city on adult zoning ordinances, as well as the city’s alcohol code. Such code enforcement is how the Louisiana Office of Alcohol and Tobacco Control targeted Bourbon Street clubs in January’s raids, assessing a total of $28,600 in fines— a sum dancers from Bourbon Alliance of Responsible Entertainers (BARE) calculated that a single dancer working the Mardi Gras season could easily earn. Meanwhile, the raids and ensuing club closures took money out of dancers’ own pockets. “That’s food from our families’ mouths, our debts and bills, our dreams, that’s healthcare costs, that’s our freedom pulled out from under us,” BARE posted on Instagram, captioning a protest sign on Bourbon Street addressed to the outgoing mayor: “Mitch — if all you needed was $28K we would have helped!”

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Los Angeles Public Defender’s Office Has A New Interim Leader — And She’s Never Represented Indigent Clients

Nicole Davis Tinkham
Los Angeles County Chief Executive Office

Los Angeles Public Defender’s Office Has A New Interim Leader — And She’s Never Represented Indigent Clients

On Jan. 23, public defenders in Los Angeles County got a new interim boss — over their own objections. For one thing, many have argued, Nicole Davis Tinkham, the appointee, comes from the Office of the County Counsel, where she defended the Board of Supervisors (the same governing body that appointed her), and the Sheriff’s Department, a frequent foe of their clients. Perhaps even more importantly, they say, Tinkham has no experience with indigent criminal defense. For the next six months, she’ll lead the oldest and largest public defender’s office in the country, where 675 attorneys serve a county more populous than New York City.

The day the Board unanimously appointed Tinkham by a 5–0 vote, Robin Bernstein-Lev, a deputy public defender in LA County and 30-year veteran of the office, said she submitted a letter signed by hundreds of colleagues, demanding Tinkham not be given the role.

“An innate part of our responsibility is to distrust law enforcement,” Bernstein-Lev told The Appeal. “We have to have that perspective to be able to defend our clients. We can’t just accept what law enforcement presents to us. …. It’s our job to investigate around what they say. And she has no experience with that.”

Tinkham’s history with County Counsel, which represents the Board of Supervisors and other public agencies, and whose stated mission is to protect the county from “loss and risk,” also raises legal questions about her allegiance to low-income clients. She appears to have “dual loyalties,” the letter states. Especially since she has brought a team from County Counsel with her to the public defender’s office, and, according to the countywide communications office, plans to return to her Counsel post later this year.

“We are at the opposite end of litigation with County Counsel in a number of arenas,” explained Deputy Public Defender Jennifer Friedman. “If there is some tension in a particular case between our office and our clients [on one side] and County Counsel on the other side, it’s very unclear how that is going to play out.”

LA County public defenders at an organizing meeting with members of 2nd Call, a local nonprofit, in Inglewood last week
courtesy Alisa Blair

Public defenders say building trust with their clients is essential to their work, and they fear that could be compromised by Tinkham’s appointment. While employed by the firm Collins Collins Muir & Stewart LLP in 2013, Tinkham provided civil defense to Sheriff’s Deputy Scott Sorrow after he shot a 15-year-old, William Fetters, in the back in 2009. Sorrow had encountered Fetters holding a plastic toy gun and biking with friends in Palmdale. Fetters was awarded $1.1 million in that case.

Tinkham’s involvement in the Sorrow case and others in which she represented the Sheriff’s Office could make public defenders’ jobs more difficult, the attorneys say. “She doesn’t have to be directly interacting with clients for her presence to have an impact on our ability to gain our clients’ trust,” Bernstein-Lev predicted. “It’s very difficult for a person who is getting a lawyer for free to believe that they are getting quality representation. So we are already at a deficit.”

In a statement to The Appeal, Tinkham said she was entirely focused on her new role. “I will have no divided loyalty as I dedicate my time and energy to this interim position,” Tinkham said.

And in her first communication with staff, an email on January 24, Tinkham acknowledged her lack of experience. “Let me be direct: I need your help,” she wrote. “Your criminal expertise is absolutely essential to our office’s core mission. I am relying on you to further these efforts. But, as I hope you’ll soon see, I bring over 15 years of employment law experience that I think can help the office function more effectively, more transparently.”

“Many of you have certainly provided me with a challenging welcome,” she added. “But as you get to know me, you’ll learn that I love a good challenge.”

Tinkham is assuming the leadership role at the Los Angeles County Public Defender’s office at a crucial moment, when experienced leadership at the office is desperately needed, public defenders told The Appeal. Their office hasn’t had a full-time leader since late 2016, when former Public Defender Ronald Brown retired. There’s currently a shortage of social workers to conduct client interviews that inform alternative sentencing requests, and a backlog of Proposition 47 relief cases, in which poor clients are looking to vacate old sentences to improve their job and housing prospects. And in a county with 10.2 million residents, 20 percent of whom are non-citizens, defense attorneys say their clients often have complex immigration needs, and that their office lacks the staff to adequately serve them.

“Having a strong chief of the office can be incredibly important to help reform an office,” said Andres Kwon, an attorney and Equal Justice Works Emerson Fellow at the American Civil Liberties Union of Southern California. It should be “someone who has been a public defender, because you cannot substitute that knowledge. You can’t learn theoretically. You learn representing the most vulnerable poor accused, day in and day out.”

But county officials have been steadfast in their support of Tinkham. County CEO Sachi Hamai wrote a formal recommendation for her, highlighting the Board of Supervisors’ priorities for the job, including “operational effectiveness” and “fiscal responsibility.” In a letter to the public defender’s staff, Board of Supervisors Chair Sheila Kuehl said that she believes Tinkham will bring “much-needed stability to the Public Defender’s Office during an uncertain time.”

A veteran employee of the office, who has met Tinkham multiple times since she assumed the post and asked that we withhold her name to avoid tension with her colleagues, said that some of the Board’s concerns about mismanagement are founded, even if appointing Tinkham was a serious misstep. “I think there’s a lot in our upper management structure that’s not effective,” the employee said, citing a lack of communication between the office’s four assistant public defenders. “I can hardly get an email responded to from our own HR department.”

Tinkham is “approachable, very bright, and seems committed to addressing the difficulties,” the person added, but the Board should have brought in a seasoned public defender alongside her: someone with experience to make final case decisions, and whose name would be on the letterhead.

“We could have her come in and do some oversight or whatever, but [having her] as the last person to answer for any of these clients or cases … I don’t know how that’s not problematic.”

While Tinkham was appointed to serve through June, some defense attorneys are still working to unseat her. Alisa Blair, deputy in charge of the Los Padrinos Juvenile Court and president of the Black Public Defenders Association, is part of the so-called Lawyers of the Resistance, a group of colleagues that launched an online petition for Tinkham’s removal, with 1,288 signatures as of this writing. “My issues are that it sets a very bad precedent and makes us seem unimportant — like the incorrigible bad children of the county — to say anyone can come in to clean things up,” Blair said. The group recently announced a rally in Grand Park in Los Angeles on February 12 to demand that Tinkham’s appointment be rescinded. They’ve made rubber “#notmyPD” bracelets.

Blair, who applied for Tinkham’s position earlier this month, shared a letter with The Appeal that her colleagues sent to grassroots allies, enlisting their support ahead of the rally. Tinkham “has never zealously advocated for an unmedicated mentally-ill individual in the throes of mental illness,” it states. “She has never held the hand of an undocumented client facing removal for a minor, victimless crime. She cannot understand the spirit and commitment necessary to ‘suit up and show up’ every day on behalf of Los Angeles County’s most underserved and misunderstood constituents.”

Veteran San Francisco Public Defender Jeff Adachi is the only public defender in California elected by the voting public, which he considers important to his independence. When a Board of Supervisors makes the selection, he said, “the office-holder is beholden to the Board of Supervisors.”

Experience in criminal defense is important too, he said. Before being elected, he served as an attorney in the office he now runs for 15 years. “You have to weigh in constantly in this day and age,” Adachi said. “You need someone who understands bail reform, sentencing reform, and is committed to reducing mass incarceration. To bring in someone who doesn’t have experience in that area but has also actively defended law enforcement against police misconduct would be unthinkable here.”

“Right now is a critical time, because Los Angeles is the biggest county in the state, and criminal justice reform is being debated every day, both in the grassroots and the capital,” he added, citing the bail reform and anti-mass incarceration movements. “Having a knowledgeable person who understands these issues from LA would be huge.”

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