Federal Court Holds NYC in Contempt for Continuing to Enforce Unconstitutional Loitering Statutes

New York City was held in contempt of court by U.S. District Judge Shira Scheindlin on April 26 for the New York City Police Department’s failure to cease enforcing loitering laws that were held unconstitutional many years ago. In an opinion dripping with outrage, the judge wrote that "the City’s obstinance and uncooperativeness throughout the present actions is offensive to the rule of law."

"The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system," she wrote. "More disturbing still, it appears that the laws – which target panhandling, remaining in a bus or train station, and ‘cruising’ for sex – have been enforced particularly against the poor and gay men."

In 1983, Lambda Legal scored a major early triumph for the gay community when it persuaded the state’s highest court, the Court of Appeals, to strike down the "loitering for sex" statute that police around the state used to arrest men who were out "cruising" for sexual companions. The court held that since it had recently declared the sodomy law unconstitutional, the state could no longer penalize the act of asking another person to engage in the now-legal conduct, although actually engaging in sexual activity in a public place remained criminal. But somehow the word did not get out to the NYPD, which continued to charge men with violations of the statute as often as before, for activity that was now legal.

While many of those cases were dismissed by the courts, those arrested still endured the indignity of being detained, booked, charged, held in jail, brought into court, and saddled with an arrest record. Somehow, the fact that most of these cases were dismissed on grounds that the law was unconstitutional made no significant impression on the NYPD, whose commanders made no systematic effort to restrain their forces.

This error was compounded as other provisions of the loitering law were subsequently struck down without making any significant dent in the enforcement activities of the NYPD. In 1988, the Court of Appeals invalidated a provision making it a crime to "loiter" or sleep in a train or bus station if the individual was "unable to give a satisfactory explanation for his presence" to a police officer, and in 1992, the federal district court enjoined enforcement of a provision making a person guilty of a crime when he "loiters, remains or wanders about in a public place for the purpose of begging." It seemed to matter not a whit to the city’s law enforcers that they no longer had a legal basis to arrest people for violating these stricken laws. They just kept at it.

Finally, people got so fed up that lawsuits were filed, ultimately consolidated in a pair of class actions before Judge Scheindlin in the U.S. District Court in Manhattan. The statistics were startling. Tens of thousands of people had been arrested and charged with violations of these laws since they were declared invalid. The City’s defense to these lawsuits was to argue that it was doing all it could to get the police to understand the changes in the law but, as Judge Scheindlin found, the City never took effective steps until it was under the threat of a lawsuit and the possibility of injunctions and fines.

Of course, the problem was made worse by our dysfunctional state legislature, which ignored the court decisions and failed to revise the Penal Law, so the printed materials distributed to the police containing the texts and summaries of criminal statutes continued to list these invalid loitering provisions.

During the course of this lawsuit, it came out that police officers routinely prepare "cheat sheets" that they carry with them on patrol, listing the penal provisions with short descriptions, to which they refer when they did the paperwork on their arrests. Even though the City undertook to have the relevant provisions crossed out in dark ink in the copies of the Penal Law kept in police stations, this action was ineffective because the "cheat sheets" remained the same, so the police kept charging the offense, and because enforcement of the orders to revise the manuals was uneven as well. A review in October 2009 found that numerous precinct houses had not yet complied with the order that had been given almost a year and half earlier, and discovery turned up thousands of "cheat sheets" that continued to list the stricken laws.

Under further prodding from the court, the NYPD began incorporating information about the invalidation of the laws in its training and bulletins distributed to the force, and reluctantly began to impose discipline on officers who continued to arrest and charge people under these provisions. Only relatively recently, however, did the Department assign its Internal Affairs Bureau to investigate and take disciplinary action, a step that was characterized in deposition testimony as finally signaling to the police that this was a serious matter. Under the most recent policy, officers who continue to charge people with these offenses can lose a day of vacation time for each invalid charge.

Still, the problem has not been totally eliminated, although the number of charges has dropped sharply in recent years. Hundreds of people a year were being charged under these invalid provisions just a few years ago. The most recent data show that the improper arrests have dropped, but they are still going on, with data showing improper arrests continuing into the early months of this year. For example, recent data shows that 125 unlawful summons were issued under the sexual loitering provision between May 2008 and February 2010, mainly against gay men.

Finally, Judge Scheindlin, who had initially resisted the plaintiffs’ request that the City be held in contempt and placed under an injunction, lost her patience. The City had claimed that it was making "reasonably diligent" efforts to get the NYPD to comply with the court’s order, but Scheindlin found that this "characterization" by the City of its efforts was an "overstatement." Although the City listed a myriad of steps it claimed to have taken, Scheindlin found that "this catalog of the actions taken by the City masks and obscures the City’s generally lethargic approach to compliance with the Orders. Nearly every measure that the City has undertaken has been at the direction of the Court, the prodding of plaintiffs, and/or under the threat of sanctions." Indeed, she pointed out, it wasn’t until after a May 2009 conference on the case "wherein the Court raised the specter of contempt proceedings, that Commissioner Kelly advocated repeal of the Statutes."

The judge pointed out that the City had "narrowly escaped sanctions" in 2007, when it promised the court that it would diligently address the problem, but she found that the City had failed to keep its promises. "In the years since the City was ordered to stop enforcing the Statutes," she wrote, "the City appears to have made little effort to understand and address the mechanisms underlying continued enforcement of the Statutes. Only when threatened with sanctions in September 2009 did the City begin to act with reasonable energy and diligence toward the desired goal. But where such a last minute frenzy was key to the avoidance of contempt in 2007, this time, it’s too little, too late."

The judge’s April 26 ruling in response to new motions by the plaintiffs does not include an injunction, but does hold the City in contempt and establishes a schedule of fines that will be applied to future improper arrests and charges. After a six month period for the City to bring itself into full compliance with the court’s prior orders to cease enforcing the three loitering provisions, the court will begin to impose a fine of $500 per incident of wrongful enforcement for the following three months, with the fines increasing in increments of $500 every three months thereafter until they reach $5,000 per incident. Of course, if the NYPD can get its act together and eliminate improper arrests and charges, it can avoid the fines.

However, the City will not be able to escape all liability. Judge Scheindlin found that the City had negligently failed to preserve relevant evidence in this case, the sanction for which will be a judicial finding that the missing evidence would have supported the plaintiffs’ case. The judge found it appropriate to award attorneys fees and costs to the plaintiffs, in an amount that will be determined when the lawyers submit their fee application. Considering that the case has dragged on for years due to the City’s stonewalling on discovery requests and continuing failure to live up to its promises to the court about compliance, the fee award should be substantial. In addition, the court’s denial of the plaintiffs’ request for an injunction was made "without prejudice," which means that they can come back and ask again if the City persists in its failure to eliminate these inappropriate arrests.