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Loitering Rules in Projects Are Too Vague, Judge Says

October 4, 2012

A federal judge in Manhattan declared on Thursday that the rules against loitering in public housing complexes were unconstitutionally vague, and gave the police too much discretion about whom to arrest.

The ruling by Judge Shira A. Scheindlin of Federal District Court in Manhattan allowed a lawsuit challenging police arrests for trespassing in housing projects to move closer to trial.

The key question of the lawsuit, Judge Scheindlin wrote, is whether the city and the public housing authority are “acting within constitutional limits in their presumably sincere efforts to provide a safe environment for the residents of public housing.”

“Or, in their zeal to provide that protection, are they violating the rights of the very residents (and guests) whom they seek to protect?”

In her 83-page decision, Judge Scheindlin did not attempt to answer that question, but she did reach two conclusions that could raise the threshold before police can make trespassing arrests. She held that the police cannot arrest someone for trespassing “if the only facts known to the police are that the person says she does not live in the building and refuses to say more about her license or privilege to be there.”

And she concluded that signs in public housing prohibiting loitering and lingering are unconstitutionally vague when they become the basis for police arrests of residents.

“As written, the prohibitions do not clearly distinguish between harmful and innocuous activity,” Judge Scheindlin wrote.

Johanna Steinberg, a lawyer with the NAACPLegal Defense Fund, which represents the plaintiffs, said that both of Judge Scheindlin’s findings “were significant developments.” The lawsuit was filed by both the Defense Fund and the Legal Aid Society.

In a statement, a city lawyer, Brenda Cooke, said the judge’s analysis “fails to distinguish between, on the one hand, trespassing in a prohibited area like a rooftop or boiler room and on the other hand, loitering in common areas in violation of Nycha’s rules.”

The judge’s conclusion “does not mean that such patrols are indeed unlawful,” Ms. Cooke said. She added that the Police Department’s measures were also not deemed inadequate.”

In Thursday’s decision, Judge Scheindlin examined the claims of eight people who had been arrested on trespassing charges in public housing, as well as the grandmother of one of those people.

While the judge did reject a number of the plaintiffs’ claims, she allowed seven plaintiffs — most of whom lived in the public housing buildings in which they were arrested — to go forward with their claims of unlawful arrest.

In one case that was allowed to go forward, Lashaun Smith, 34, claimed that he was stopped by the police as he was leaving the Langston Hughes Apartments in Brooklyn, where he had spent the night at a friend’s residence. An officer returned to the apartment where Mr. Smith had stayed to corroborate the story. But Mr. Smith was arrested after the person who answered the door was unable to vouch for him. Judge Scheindlin noted, however, that the person was the younger brother of Mr. Smith’s friend, and that he is blind.

The ruling comes on the heels of a recent policy instituted by the Bronx district attorney’s office; for the last two months prosecutors are no longer moving forward with cases against people stopped at housing projects and arrested for trespassing unless the arresting officer is interviewed to ensure that the arrest was warranted. The police commissioner, Raymond W. Kelly, has since said that the Bronx prosecutor’s concerns appear to be unfounded.





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