For more than 20 years, the New York Police Department has maintained its "Clean Halls" program, a leftover of the crack days. Back then, drug dealers would take over the lobby of an apartment house to use as their "spot," or keep an apartment as a stash house. Bronx apartment houses were particularly well suited for drug dealing, as they had an outer door, a vestibule and an inner door leading to a lobby, with two staircases and a nonfunctional elevator. It offered great security for drug dealers, who were competing for control of their block, and easy means of escape. It was a blight that landlords couldn't stop, and make life for other tenants horrible.
So the NYPD came up with a plan. Landlords signed affidavits that allowed the police free reign inside their buildings, and waived the rights of all who entered "unlawfully" to be stopped, questioned and searched. There was a small sign placed outside the building, but the same sign was essentially on every building. There was no way to know who was entering unlawfully from who was there as a tenant or lawful guest without first stopping and demanding to know their business in the building.
The cops would lay in wait behind the inner door. When someone entered the vestibule, they would open the inner door and grab them. There was no escape for the visitor or tenant, who was then questioned, if they were lucky, or thrown against the wall if they were not. They were asked who they were there to see, but that's a tricky question in a borough where Spanish is more likely spoken than English, because the question often posed asked for a very different response according to how it was phrased. In Spanish, it calls for a description ("Who are you here to see? My friend"), while in English, it called for a name.
The person in custody was then searched for fun and, if there was a bit of marijuana or a gun, arrested. If nothing, but the person gave the cops a hard time, they were arrested for the trespass. It would resolve with an ACD at arraignment, or at worst a disorderly conduct with time served, but the person would learn his lesson not to screw with cops. And if the person resisted, an occasional shot rang out from a service revolver. And that was how they kept the natives under control.
More than twenty years later, it's still happening. While the arguable purpose of stopping the plague of crack has long been forgotten, it's programs have since become a part of life in the Bronx. Tenants in Bronx apartment houses can't get to their own Castle without crossing the no-man's-land between the vestibule door and their apartment door.
On the street, they have the limited protection of other people's eyes, maybe even someone's video. Inside their building, there is no one to see what happens. It's just them and two cops, and there is no way to reach their Castle without running this gauntlet.
It never made any sense to me that one party, the landlord, could waive another party's constitutional rights, and I argued this point many time to no avail. While the landlord could prohibit entry into his building for those without legitimate reason to be there, he could not authorize police to seize and search another human being. But crack times were bad times, and judges ignored my arguments. Granted, my clients weren't always the finest of people based on what came out of their pockets, so they didn't enjoy much sympathy.
The Bronx District Attorney has decided he's had enough busts of tenants and legitimate guests under the "Clean Halls" program, where the same routine allegations appear in every complaint. It's another version of Irving Younger's observations about "dropsy" cases, where it had become so common that no one bothered to question them. Recite the mantra of trespass and it was close enough. There a trial happening now in the Southern District of New York over the practice, and the New York Times editorial says it's time for it to stop.
More than twenty years after the "Clean Halls" program commenced, there is a concern about its violating constitutional rights, at least as far as tenants and their legitimate guests are concerned. It's a start. Of course, no one is arguing about the programs waiver of rights in general, since no one really cares about the problem of general waivers of other people's constitutional rights. Maybe, twenty years from now, they will get to that problem.But a hearing under way in Federal District Court in Manhattan is featuring an open and fiery dispute between the Police Department and an assistant district attorney from the Bronx, who has testified that her office began to have misgivings about the legality of some trespassing arrests as far back as five years ago.
The federal lawsuit, Ligon v. City of New York, was brought on behalf of people who say they were illegally stopped, given tickets or arrested on trespassing charges in apartment buildings, some in buildings where they lived. The suit focuses on the city’s two-decade-old “Clean Halls” program, under which police officers patrol private buildings with the permission of landlords.
###The case could potentially go into next year. But the prosecutor’s testimony is strong evidence of the program’s problems and the Police Department’s failure to protect people’s constitutional rights.
Whenever someone proposes a new law to "stop the insanity" of a transitory plague, certain that whatever rights are lost in the name of a moment's safety, it's worth it, think of all those people who had to make it from the vestibule door to their apartment door without being rousted by the cops along the way. In Texas, they shoot people under their vision of the Castle Doctrine. In the Bronx version, they pray not to be shot.
Epilogue: It would be a shame to pass up an opportunity to quote Irving Younger.
People v. McMurty, 314 N.Y.S.2d 194, 195-96 (N.Y. Crim. Ct.1970), (Younger, J.).‘* * * Policemen see themselves as fighting a twofront war
—against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example, the Supreme Court laid down the rule that evidence obtained by the police through a n unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed.
Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided. Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.
The more things change, the more they stay the same. And yet we never heed George Santayana's admonition that those who don't remember the past are condemned to repeat it. And repeat it we do.
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Lucia Anna “Pia” Trigiani, a prominent Northern Virginia real estate lawyer and past president of the Virginia Bar Association, was named “Leader of the Year” by the 2012 class of “Leaders in the Law.”