The Bad “Optics” Of A Lawful Arrest

There are a litany of things people “believe” when it comes to criminal law that, though completely false, never seem to go away. No Miranda Warning? “That means the arrest isn’t valid,” say the twitter lawyers. Of course, it’s nonsense, but they believe it, spread it and perpetuate it among people who want it to be true. An arrest in Kips Bay went viral, with the unduly passionate losing their minds over the “kidnapping.”

That this is how the warrant squad operates, has always operated, doesn’t offer much comfort. If they’ve been doing it wrong all along, that’s no justification to continue to do it wrong.

But they weren’t doing it wrong. There is no requirement that they be in uniform. There is no requirement that their vehicle be marked as a police car. They do not need to ask permission of the person they’re arresting before taking her into custody. They do not need to crowdsource their procedures for the approval of the activists on social media.

Yet, this doesn’t seem to matter at the moment.

While the police indicated that they were following standard procedure, the incident comes at a time when law enforcement practices are under intense scrutiny. Several city officials said on Tuesday that they were troubled by the videos of the woman’s arrest and publicly demanded a fuller explanation from the Police Department.

The defendant was accused of the misdemeanors criminal mischief and making graffiti, which aren’t generally crimes of such weight that the cops would go to great lengths to find her, nab her. But she was accused of spray painting police surveillance cameras, which not only pissed the cops off, since it was their cameras, but made their job harder. Of course, that’s likely why it was done.

The Police Department said in a statement that the protester, Nikki Stone, 18, had been taken into custody by officers from the warrant squad in connection with “damaging police cameras during five separate criminal incidents in and around City Hall Park,” an apparent reference to incidents that occurred during the Occupy City Hall protests.

Ms. Stone, a transgender woman who the police said was from the Lower East Side, was one of 12 protesters arrested on Tuesday, the police said.

That she was a transgender woman bears no connection to anything, but failure to identify one’s place on the victim hierarchy violates the rules of New York Times engagement, so it must be said. The cops had located her in the midst of a protest, which made their decision to grab her all the more problematic. In the past, people tended not to interfere with police arrests. Those days are gone, and people not only try to interfere, often by screaming useful things like “what the fuck” and “leave her alone,” but physically interfering, including striking and swarming on cops to prevent them from making the arrest.

But the issue this time wasn’t that the allegations, if proven, didn’t constitute a crime. It was that the arrest violated the sensibilities of the activists and their friends.

I think a majority can agree that vandalizing police cameras is justifiably considered a crime, and that police action like this is not a justifiable way to address it.

Combining these two thoughts doesn’t strike me as difficult, despite some efforts to insist it’s either/or.

Would a “majority” agree that this was not a “justifiable way” to address it? Probably, if one’s majority is made up of people who were completely ignorant of police procedures and tactics. How do people think arrests happen? How should they happen? What would have happened if a police officer, in uniform, in an RMP, strolled into the crowd of protesters, walked up to Stone, who would stand there calmly, and politely said, “Ms. Stone, kindly put your hands behind your back so that I can arrest you”?

Yet, it’s not just an academic on the twitters who indulges in the fantasy of abject ignorance to reach the conclusion that “these two [don’t] strike me as difficult.” Of course they don’t, because Dunning-Kruger doesn’t discriminate based on graduate degree. Yet, Governor Andy Cuomo has no excuse.

“I’m surprised that, especially at this time, the N.Y.P.D. would take such an obnoxious action,” Mr. Cuomo said during a news briefing. “It was wholly insensitive to everything that has gone on.”

And as is banal these days, a New York City councilwoman seized the opportunity to pander.

On Tuesday, Carlina Rivera, the city councilwoman who represents the district where the arrest occurred, called the arrest a “massive overstep” and said she was exploring legislation over the use of unmarked vans and plainclothes officers.

But there was nothing about this arrest that wasn’t entirely lawful and logical. Except the optics. As Andy said, it was “wholly insensitive.” That could mean that actions like this inflame the situation, generate greater unrest and violence and perpetuate the commission of crimes in the streets of New York. Or that could mean that it would have made Andy look unwoke and antagonistic toward whatever the protesters were protesting unless he fed into the feelings of protesters, costing him votes and support, and so he chose to condemn the cops because he already has their votes and union money anyway.

The cops could have let Stone’s arrest slide in light of the fact that they found her in the midst of a protest, which would almost certainly turn into a riot to prevent them from effecting the arrest. As annoyed as they were with Stone’s vandalism of their cameras, it was still only a misdemeanor.

The cops could have waited for another opportunity to nab Stone, when she wasn’t in the midst of a protest and there was far less likelihood of the optics being awful, far too much like the feds grabbing black-clothed citizens off the streets of Portland but with the material difference that there was no question that this was NYPD doing NYPD work. Whether they knew where to find Stone or this was, as far as they knew, their one chance to arrest her is unclear.

But then, if the unduly passionate sensitivities of the mob or the ignorance of the “majority” who feels that there was a more “justifiable” way to deal with this, dictate otherwise lawful and entirely reasonable police procedures, is there really any way to constrain people to adhere to the law? If the police need the permission and approval of those being arrested and their legally idiotic pals, can they function at all?

25 thoughts on “The Bad “Optics” Of A Lawful Arrest

  1. Jim Majkowski

    “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

    O. W. Holmes, Jr., The Path of the Law,, 10 Harvard L Rev 457 (1897)

  2. Hal

    “Criminal mischief and making graffiti” may be misdemeanors, but the property she defaced was police property which elevates the charges to include “contempt of cop”, which is treated in most jurisdictions as a felony.

  3. Chris Hundt

    I don’t think it’s just the “unduly passionate” who have no idea how law enforcement works; I have seen some actual cops criticize the way this was handled as well.

    The law may have authorized what they did, but that doesn’t mean they had to do it. As you note, they had alternatives available but they chose to do this because they wanted to. So I think it is entirely appropriate to question whether they should have.

        1. SHG Post author

          I appreciate your following the rules, but just saying so really wasn’t very substantive here. You could have given more info, including for example a quote of what was said and by whom, or not. Also, I suspect they’re talking about bench warrants, not arrest warrants.

          As for the courtesy call, that’s certainly true for many circumstances, particularly where you know where to find someone (have a home or work address) and reach them (have a telephone number). Did they here? Would that have been a sound approach under these circumstances? I think most cops would say no, it would be foolish to alert her that they were coming as she was not the sort likely to clear up the warrant, even assuming they had a way to reach her. But I’ll leave that to cops to hash out.

          1. Chris Hundt

            Sure, it’s possible they had ruled out other methods, but my point is that they should have had a reason beyond “probable cause that a crime was committed” to do the arrest in that manner. They haven’t bothered to give one, which makes me think they don’t have one, or at the very least don’t believe they need one.

            Also, note that the NYPD said that she was “wanted” and arrested by the “warrant squad” but not that any arrest warrant was issued.

            1. SHG Post author

              They don’t use actual arrest warrants in NYC, but hand off the “wanted” bust to the warrant squad. I should have explained that before using arrest warrant, which would understandably be confusing to a non-lawyer (though, bear in mind this is a law blog). Your point, that they could have offered a more thorough explanation for why they chose this course rather than a course for which there is nothing to suggest was possible, and much to suggest wasn’t possible, is correct.

              Do they need to explain in that much detail to the curious but ignorant and antagonistically biased public why they chose a make a lawful arrest in that fashion? Maybe that would have been the better thing to do for the sake of optics. Then again, rejection of the obvious suggests that nothing would have sufficed and people, like you, would persist in finding some reason to object.

        2. Inspector Clouseau

          Cop here. It should come as no surprise that there are a few cops who say stupid crap on social media for the likes. There are lawyers on twitter who stay incredibly stupid stuff too. It happens. The test is to be able to distinguish what’s real from the horseshit being tweeted for love of the dumbasses. Looks like you failed that test.

          To get to the point Scott made in his opening, the reason people continue to believe in ridiculous legal horseshit is because people, well-intended people like you Chris, who clearly have no clue what they’re talking about, would rather fight for their stupidity than learn anything. It’s not just that you’re stupid, Chris, but you contribute to making other people stupider. You are part of the problem, Chris. You have nothing useful to contribute, so instead of making noise, why not shut up and learn something.

          1. SHG Post author

            To be fair, that’s my call. I posted Chris’ comments, so if there’s fault for doing so, it’s mine.

          2. Chris Hundt

            Don’t worry, I’m not under the illusion that I am educating Scott or SJ’s readers. I appreciate him posting my comment and responding to my opinion with his own, more informed opinion. (And I appreciate you responding with yours.) I did in fact learn something from the exchange that I did not learn from the original post. Although I suppose I can’t say whether other readers of the exchange got stupider.

            1. SHG Post author

              I posted your comments because I think your perspective is fairly typical of many people disinclined to buy into the cop justification, in general, and this particular video just looked terrible. Just because cops says so doesn’t make it so, and just because they’re cops doesn’t make it wrong. Sometimes, things the cops do look bad but is both lawful and reasonable. Sometimes not.

              IC is right, the test is distinguishing between the two, and what I hoped to accomplish for your sake and others was to make that a little more clear.

  4. B. McLeod

    Apparently, the police are supposed to use marked vehicles so the subjects of the warrant can run away and evade capture. NYC officials just looked like unusually gutless morons in their public statements on this one, right up to the mayor himself.

    1. SHG Post author

      Are you suggesting she wouldn’t have been fully cooperative once they made clear their desire to arrest her?

      1. B. McLeod

        It certainly looked that way in the video. The uniformed officers supporting the warrant squad left no doubt that this was an arrest, and yet, the subject was not going quietly.

  5. Jay

    Since you’re supposedly a lawyer in going to assume you know that the manner in which an arrest occurs can be unconstitutional and that just because your city apparently thinks these tactics are ok doesn’t hold much water when we all remember stop and frisk. The touchstone of the fourth is reasonableness. Unless the police could show she was the type to run or fight, these tactics were wholly unnecessary and, dare I say it, unconstitutional. But then I’m a real lawyer that has won two cases and expanded the rights of my fellow citizens and your a new Yorker. Clearly I should bow to your superiority

    1. SHG Post author

      This is so incoherent I can’t even make fun of you. And I won’t make fun of typos, glass houses and all.

    2. Miles

      I remain unconvinced you’re a lawyer. Your winning two cases (TWO CASES ! TWO WHOLE CASES!!!) is a bridge too far. Sorry, Jay, not buying without irrefutable proof.

  6. John Barleycorn

    Five cops in shorts pile out of a mini van…

    Surely there ought to be a law about the shorts at least.

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