During my third year of law school, one of my courses was a criminal defense clinic, where I represented misdemeanor defendants in Bronx Criminal Court under a student practice order under the supervision of our professor and an incredible organization called the Bronx Defenders. I am sharing some stories about that time. These stories are based on notes, memoranda, and filings that I saved from that time, as well as my own recollection. Names and other identifying information have been changed to protect the privacy of the people involved. You can read previous posts here and here.

By far the most common charge in misdemeanor courts during my time in the clinic was trespassing. I’d sit in arraignment part for 3 or 4 hours at a time and there would be dozens of trespassing cases. I remember thinking at the time “how many people could possibly be trespassing on one day?” Apparently the answer is “hundreds” because literally hundreds of people were arrested for trespassing every single day.

From 1991 until 2015, NYPD and NYCHA participated in something called “Operation Clean Halls” which allowed NYPD officers to patrol the hallways of public housing projects without warrants. Clean Halls was likely started as a reaction to the violence and narcotics distribution that was rampant in housing projects during the crack epidemic of the 80s. Clean Halls effectively removed the probable cause requirement for police to search a person once that person entered a NYCHA building. Walking in the door of the building meant that you were subject to a search (usually in the form of being required to present ID to an NYPD officer when asked).

When NYPD began the era of Broken Windows policing and using Compstat to measure results, trespassing arrests skyrocketed. The reason of course, is that if you require an organization to achieve a certain statistic, the people who comprise that organization will often do anything to achieve that statistic, regardless of the underlying conditions. Based on the Compstat calculations, NYPD expected (and in many instances, illegally required) a certain number arrests and/or citations per officer). For more on that, check out these articles about Adrian Schoolcraft, Sandy Gonzalez, and Edwin Raymond.

NYPD units would conduct “vertical patrols” where police would start on the top floor of the building, sweep each floor, and make their way downstairs. Anyone who was in the hallway was subject to a search. (Incidentally, Akai Gurley was shot and killed by Officer Peter Liang during a vertical patrol). If someone couldn’t provide ID that confirmed their address, they were arrested for trespassing. It didn’t matter if they were actually trespassing or not. If the suspect claimed to be an invited guest of a resident, police were supposed to go to that resident with the suspect and confirm. Usually, the criminal complaint would note that the officer went to apartment X but was unable to find anyone who would verify that defendant was a guest. Of course, there are a lot of reasons why this would happen. Perhaps the resident didn’t want to talk to the police; perhaps the resident wasn’t home; perhaps the officer never actually tried to find the resident.

Tom was a 24 year old black man with no criminal record. Tom, his brother, and their cousin were going to visit some girls in a NYCHA apartment building where Tom did not live. Before they got into the building, they were stopped by two police officers who asked for ID. Tom and the other two young men showed their IDs. Since their IDs showed a different address than where they were, Tom, his brother, and their cousin were immediately arrested for trespassing even though they had not yet gone inside the building. The criminal complaint against Tom stated that “defendant stated in substance, he was there to visit Shirley (name changed for privacy) in Apt X but, upon investigation, informant could not locate anyone who had given defendant permission or authority to be inside said building.” (That’s hearsay, but we’ll save that for another day). When we met Tom, he told us that Shirley had seen them from her window being questioned by the police and ran downstairs. She attempted to tell the officers that the men were there to visit her, but the officers refused to listen.

The worst part about Tom’s story is that even though we were able to get the charges against him dropped, he was forced to miss two weeks of work. Tom worked for the NYC Board of Education. BOE policy is that any employee with an open case is suspended pending the outcome. If they are convicted, the employee is fired. At arraignment, the DA offered what is called an “adjournment in contemplation of dismissal” or ACD. ACDs are basically a form of probation. If the defendant doesn’t get arrested for 6 months, then the charges are dropped, but if s/he does get arrested again, the DA retains the right to re-open the case. In practice, offering ACDs at arraignment was an implicit acknowledgement from the DA that the case was bullshit. Unfortunately, Tom could not take that offer because the BOE considers an ACD to be an open case for the entirety of the 6 months. Eventually, we were able to convince the DA to drop the case, but Tom was suspended without pay for the 2 weeks it took to get his case dismissed.