The NYPD Is Attempting To Prosecute Political Activists In Lieu of The DA, A Legally Dubious Move

Memorandum Giving NYPD Prosecutorial Power

Memorandum Giving NYPD Prosecutorial Power


One function of the District Attorney is to dismiss unwarranted charges by the police.

Indeed, I once asked the Manhattan DA why he was not doing more to discourage the NYPD from making false arrests and filing unwarranted charges, like those to which I was recently subjected after three separate arrests at Occupy Wall Street demonstrations, all of which his office had dismissed.

He replied that if his office had dismissed the charges, it had “done its job.”

Yet instead of doing its job to check unwarranted charges by the NYPD, the Manhattan DA is now attempting to grant the NYPD prosecutorial power in several cases, many of them specifically political in nature.

This practice clearly violates the spirit of the law, and likely violates the letter of the law, as well. Indeed, at least one judge has said he did not have the power to authorize the NYPD to prosecute a protester in lieu of the DA.

Spirit of the Law

In addition to the DA’s job to dismiss unwarranted charges, the New York City Charter states that the NYPD has a duty to “protect the rights of persons” (§ 435) the first among which are first amendment rights.

Yet when the Daily News first reported on the NYPD’s attempt to prosecute protesters in lieu of the DA, it quoted the NYPD as saying it was attempting to prosecute people they “consider professional protesters.”

Instead of protecting people’s first amendment rights, the NYPD seems to be using inaccurate, politically loaded language to question the motives of these activists and justify aggressive and likely unlawful prosecution.

“Professional” means paid. I know many of the protesters the NYPD has attempted to prosecute for arrests at political demonstrations, and none of them are paid to protest.

What the NYPD seems to be doing is playing into a myth in the national conversation around demonstrating that protesters are paid to do so and thus their grievances are less authentic.

Sam Cohen, an attorney for several activists who the NYPD has attempted to prosecute in lieu of the DA, says that, “I’ve never encountered a paid protester, and I think that the NYPD has a fantasy of ‘professional agitators’ that they willfully promote in an effort to justify their treatment of persons exercising speech rights.  I don’t know about every instance of the NYPD appearing in this fashion in court, but all of the cases where I have been present have involved individuals arrested for protesting police violence against civilians.”

Coupled with the fact that these activists were arrested for violations that are routinely committed in NYC without resulting in arrest, a tactic lawyers have argued is used to suppress protests, the practice appears to be an extreme attempt to chill first amendment protected free speech.

By shirking his responsibility to dismiss these types of unwarranted charges by the NYPD and instead allowing the NYPD to prosecute them itself, the DA is failing at one of its most important roles in protecting people’s first amendment rights, as well.

Perhaps more troubling is that though the NYPD says it has only prosecuted “a handful of cases” at this point, and based on the amount handled by civil rights attorneys, most of those have been against political activists, the NYPD also said that it “intends to do so more often, including in cases involving repeat quality of life offenders.”

This is a staggering statement during a time when a national movement is calling into question the effectiveness and racial bias of “quality of life” policing, District Attorneys and the NYC City Council are taking steps to decriminalize many “quality of life offenses,” and “repeat quality of life offenders” will likely have less access to counsel than political activists.

Letter of the Law

It is telling that the DA and NYPD did not sign the above Memorandum of Understanding attempting to grant the NYPD prosecutorial power until after the Daily News reported on Sam Cohen’s opposition to the practice.

While several parts of county law for Manhattan may appear to suggest the DA can delegate prosecutorial power, none of them seem to apply to the cases in which the DA has delegated that power to the NYPD for the purpose of prosecuting political activists:

  • While New York County Law § 700 (13), allows the DA to “employ or contract” with certain persons, this employment or contracting does not specifically extend to prosecutorial powers, and those certain persons are limited to, “persons licensed and registered to practice or otherwise authorized under article one hundred fifty-three, one hundred fifty-four, or one hundred sixty-three of the education law.” Article 153 applies to psychologists, Article 154 applies to Respiratory therapists and respiratory therapy technicians, and Article 163 applies to Mental Health Practitioners. It likely goes without saying that lawyers for the NYPD do not fall in any of these categories.
  • While New York County Law § 701 empowers the DA to delegate prosecution of cases to attorney’s outside of the DA’s office, it does so only when no one from the DA’s office “shall be in attendance.” According to Sam Cohen, attorney for three activists who the NYPD has attempted to prosecute, an Assistant District Attorney was in attendance each time.
  • New York County Law § 702-a empowers the DA to appoint “special assistant district attorneys during a period of civil disorder.” However, the DA must first file, “a certificate of necessity stating that, during, or as a result of, a period of civil disorder, one or more special assistant district attorneys are required to supplement his staff, and setting forth the period of time such special assistant district attorneys shall be required.” No known certificate has been filed, and it would be hard to prove such a necessity exists for the handful of low-level summonses for which the DA has currently delegated prosecution to the NYPD, and the actions that led to those summonses could hardly constitute a “period of civil disorder.”
  • Finally, New York County Law § 703 allows the DA to employ counsel outside of the DA’s office to assist in cases, but only in cases where, “an indictment has been found for a capital or other crime which presents unusual difficulty upon the trial thereof.” An indictment had not been found in any of the cases against political activists in which the DA attempted to delegate prosecutorial powers to the NYPD, let alone “for a capital or other crime which presents unusual difficulty upon the trial thereof.”

Additionally, NYC Charter § 437 states that the NYPD:

Is empowered to cause some intelligent and experienced person connected with the department to attend any courts in the city in cases where there is need of assistance, who shall, to such extent as shall be permitted by the rules of the court, aid in proceedings pending in such courts.

However, that “assistance” does not specifically extend to prosecution, and such an extension does not appear to be permitted by the rules of the court.

According to Sam Cohen, in his most recent case objecting to the NYPD’s role as prosecutor, the judge said that he could not authorize the NYPD to prosecute the case.

Also published on Medium.

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