Dead Law Walking
Why are New York cops arresting gay people on charges ruled unconstitutional 26 years ago?
In 1983, New York's high court struck down as unconstitutional a 1960s-era provision that made it illegal to cruise—that is, to hit on someone in a public place. And yet in the 26 years since, on thousands of occasions, the New York Police Department has continued to enforce the defunct law, historically used to target gay people.
The defendant in the 1983 case was a gay man arrested for striking up a conversation with a plainclothes police officer and asking him back to his house for sex. The court threw out the anti-cruising law, reasoning that the state couldn't criminalize an act anticipatory to sodomy when sodomy itself was constitutionally protected. (Two years earlier, the same court had found the state's anti-sodomy law unconstitutional.)
Whatever one may think of cruising and whether it should be prohibited, the court's ruling should have killed off the statute. Instead, in the 26 years of this law's odd posthumous career, district attorneys brought 4,750 prosecutions and judges convicted 2,550 defendants. For violating an imaginary law, these defendants paid a decidedly non-imaginary $70,000 in bail and $190,000 in court fees and fines. In the last 10 years, NYPD officers also issued 9,693 citations, forcing citizens to pay $71,000 in fees. The criminal records of these victims have never been expunged and the fees and fines have not been refunded.
In 2001, a gay man who refused to plead guilty got his case dismissed, but he did not win a broader remedy. Police arrested the man for telling a plainclothes officer in the Bronx's Van Cortlandt Park that he was there "to meet guys." When his attorney Michael Spiegel discovered that the anti-cruising law was invalid, he brought it to the court's attention. Four months later, the case was dismissed. Spiegel and the client considered a civil rights lawsuit, but the city offered a settlement that the client accepted. Despite the settlement, the case should have still put the cops, prosecutors, and the courts on notice. In 2003, Gay City News' Duncan Osborne wrote a story headlined "Gay man in 2001 arrested on soliciting law thrown out in 1983." Yet the NYPD continued to arrest and issue summonses, and district attorneys continued to prosecute.
In March 2008, civil rights lawyers brought a class action in federal court on behalf of the thousands of people unconstitutionally arrested, cited, and prosecuted under the defunct anti-cruising law. In May, Judge Shira Scheindlin ordered the City of New York to send letters to the police, district attorneys, and trial judges to remind them that the anti-cruising law was void and should no longer be enforced. NYPD brass sent out a bulletin to officers stating that in each officer's personal copy of the penal code, the law should be "stricken by drawing a line through it in black ink." (After 26 years, the law was still on the books because the legislature had never repealed it.)
Apparently, the NYPD ran out of black ink. From the day that the bulletin went out until now, 85 additional summonses for cruising have been issued. * Celeste Koeleveld, of the New York City Law Department, says that the NYPD has taken "many proactive steps to address the issuance of any summonses" under unconstitutional laws. [ADDENDUM: In a statement made available on the record only after publication, the city's law department also said: "The City's policy is, and always has been, not to enforce unconstitutional statutes. No system in a City as large as New York—where hundreds of thousands of criminal court summonses are issued each year— is going to function flawlessly, but the City is not arresting people or collecting fines under these statutes. Moreover, the City continues to take strong measures to address any ongoing enforcement issues."] But the most recent summons for violating the anti-cruising law was issued in September 2009—nearly a year and a half after the NYPD's bulletin went out. "It is truly shocking that after 26 years and multiple court orders, they just can't stop doing it," said McGregor Smyth, a lawyer at the Bronx Defenders who is counsel for the plaintiffs in the class action. The NYPD did not respond to several requests for comment.
How did this miscarriage of justice, involving thousands, evade notice all this time? One possible answer lies in the combination of intimidation and minimum deprivation of rights, at least in the short-run, which enforcement has entailed. People who were issued citations may have feared being exposed as gay or as out of line with the norms of sexual propriety. Many of these people paid the ticket, pled guilty by doing so, and—without a judge or defense lawyer to raise a question—tried to leave the whole thing behind them. Also, as the judge in the class action acknowledged, many of them probably pled guilty or accepted plea bargains without even knowing that the anti-cruising statute had been ruled unconstitutional.
In some cases, the citations may have had long-term and more serious consequences than simply paying a fine. More than 6,900 bench warrants were issued between 1983 and 2008 for people arrested or issued a citation who missed their court dates or failed to pay the fine after pleading guilty. A pending warrant can lead to a denial of citizenship for an immigrant, disqualification for public housing, or the loss of a job opportunity if an employer conducts a criminal background check. And when a charge for cruising is tacked on to another charge, as happened in half of the prosecutions, it can easily create additional pressure to plead guilty, says professor Erin Murphy of U.C.-Berkeley's Boalt Hall School of Law. [ADDENDUM: The city's Law Department said after publication that to its knowlege, all warrants have been expunged.]
The anti-cruising law isn't the only unconstitutional statute wielded against New Yorkers. A law banning loitering in public transportation facilities was struck down in 1988—and then enforced against more than 500 people over the next decade. A law that criminalized begging has been enforced more than 7,000 times after being thrown out by a federal appeals court on free speech grounds. These statutes plus the anti-cruising provision—all the subject of pending federal lawsuits—have racked up more than 20,000 arrests and citations that had absolutely no legal basis. That's 20,000 too many. The courts buried these laws long ago, and it's time for the NYPD to let them rest in peace.
Correction, Oct. 22, 2009: The original sentence misstated the number of additional summonses as being in the hundreds. (Return to the corrected sentence.)
Daniel Redman is an attorney in San Francisco.
Illustration by Robert Neubecker.