Monday, March 23, 2015 5:00 pm

PBA Says New Rule Removes Teeth From Anti-Trespass Effort

‘Furtive Movements’ Can’t Be Sole Justification In Making Stops

By Mark Toor

PATRICK J. LYNCH: The end of ‘Clean Halls’ as we know it.  

The Patrolmen’s Benevolent Association said last week that an NYPD directive telling officers enforcing Operation Clean Halls not to stop suspected trespassers without an “objective credible reason” will effectively invalidate the program.

“In my view, we’re actually weakening the position of law enforcement on crime,” said Edward D. Mullins, president of the Sergeants’ Benevolent Association.

The operation, also called the Trespass Affidavit Program, was the subject of litigation in Ligon v. City of New York, a companion case to Floyd v. New York, in which U.S. District Judge Shira Scheindlin ruled in 2013 that the department’s aggressive stop-and-frisk program was violating the U.S. Constitution and U.S. Supreme Court decisions.

De Blasio Dropped Appeal

Mayor de Blasio withdrew an appeal filed by then-Mayor Michael Bloomberg and settled the cases in a way that left Judge Scheindlin’s ruling and remedies more or less intact. Operation Clean Halls allows owners of private apartment buildings to give the NYPD permission for officers to patrol their buildings and surrounding areas to discourage narcotics trafficking.

Officers would look for, and arrest, trespassers who could not give a reason for being in or near a building. However, the Ligon plaintiffs alleged that this policy resulted in “thousands of illegal stops, searches, summons (citations) and arrests” because officers were stopping people without legal justification, according to the Civil Rights Litigation Clearinghouse at the University of Michigan Law School.

In a Finest message issued March 10 to all commands, the NYPD Legal Bureau said, “A uniformed member of the service may approach and ask questions of a person...if the uniformed member has an objective credible reason to do so.

‘Presence is Not Enough’

“However, mere presence in or outside a building enrolled in the Trespass Affidavit program is not an ‘objective credible reason’ to approach. A uniformed member of the service may not approach a person merely because the person has entered or exited or is present near a building enrolled in the Trespass Affidavit Program.

“...A uniformed member of the service may not stop a person on suspicion of trespass unless the uniformed member reasonably suspects that the person was in or is in the building without authorization.”

The message said the department was adding the language to comply with a court order. The U.S. Supreme Court decision that underlies stop-and-frisk says that in order to justify a stop, officers must be able to articulate a reasonable suspicion that the individual was involved, was previously involved or was about to be involved in criminal activity.

“This is effectively the end of the successful Clean Halls program,” PBA President Patrick J. Lynch said in a statement. “The courts have given those with criminal intent the right to loiter in places that they have no legitimate reason to be. The court is protecting the rights of criminals while blatantly violating the rights of residents to have a home free of threats and criminality. The personal-rights pendulum has swung way out of control.”

‘Makes Cop the Bad Guy’

Mr. Mullins said the new policy “makes the police officer the bad guy,” discouraging cops from making stops by threatening disciplinary action if they should be unable to justify one.

The policy does not take into account that “an officer who works in the community knows the local criminals, he knows what people are doing, he sees the same faces at 5 p.m. every day.” Cops can use that knowledge to pick out people who don’t belong even if they can’t articulate a reason why those people might be engaged in criminal activity, he said.

The building’s legitimate residents don’t want outsiders in the halls who sell drugs, play with the fire extinguishers, urinate in the elevators or write on the walls, the SBA leader said. The new policy leaves it up to those residents to call 911, he said.

Mr. Mullins faulted NYPD commanders for failing to explain how officers were supposed to stop people under the Clean Halls program. “The department had this policy in place for years and no written guidelines,” he said.

Cuffed by Restrictions

“Under the current climate, we have been getting more and more restrictions on police officers in the past 18 months, to the point where cops are saying, ‘Wait a minute. What am I doing?’’’ he said.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, which filed the Ligon suit, defended the order. “This is a simple directive that makes a simple point: officers cannot stop or arrest people simply because they are in or near a Clean Halls building,” he said. “Beyond that, officers remain free to enforce the law when they see suspicious activity.”